JAN. 7, 1828.]

Removal of Indians.-Indian Governments.

[H. of R.

his slave taken by the Government of the United States, of D'Auterive, you must go back and include all such and employed in its service, and there wounded, if not cases as those I have mentioned. Mr. T. concluded by destroyed. Shall the master be paid for it or not? This saying that he had risen merely for the purpose of bringwas the question, which some gentlemen seemed to thinking these facts before the view of the committee. He so terrible. The gentlemen say we must not touch it; should not further enter into the argument. but they do touch it, and they say the man must not be Mr. LITTLE, believing that gentlemen were not prepaid because a slave is not property. This is the logic pared, at this moment, to settle the question involved in of College-learned gentlemen. Now, for my own part, this bill, moved that the Committee of the Whole now I do not care when or where this question is discussed. rise, report progress, and ask leave to sit again. I am willing to meet it any where. The gentleman from After an ineffectual attempt, by Mr. MITCHELL, of New York [Mr. STRONG] has told us that the officer of South Carolina, to recommit the bill to the Committee Government and not the Government must be responsion Claims, the motion of Mr. LITTLE prevailed, the comble. Sir, this may do very well in a certain school, but mittee rose and reported, and had leave to sit again. it will never do in a school of justice! I can never consent to such a doctrine as that. I'm for putting the saddle on the right horse. If the servant of the Govern ment acts unjustly and tyrannically, the Government must for it? pay Who ever heard of such an argument? The government not responsible! Why, even in the most despotic Governments such a notion was never heard of; but, in a Republican Government, like ours, it's intolerable. If ever there was a just claim before this House, this is one. And if the question is to be argued how far a slave is the property of his owner, I, for one, am willing to declare, before the whole world, that I believe a slave is as much the property of his master as any thing else that he owns.

MONDAY, JAN. 7, 1828.

REMOVAL OF INDIANS.

Mr. McLEAN, from the Committee on Indian Affairs,

INDIAN GOVERNMENTS.

who were instructed by resolution, moved by Mr. LUMP KIN, on the 13th December, and by resolution, moved by Mr. MITCHELL, of Tennessee, on the 18th of December, to enquire into the expediency and practicability of congregating the Indian tribes, now residing East of the Mississippi river, to the West of that river, and of esta blishing a government over them, &c. made a detailed report upon the subject, accompanied by the following bill, which was twice read, and committed: Mr. TAYLOR said, that he had understood a gentle. "A Bill making appropriation to defray the expenses of man from South Carolina, [Mr. HAMILTON,] as having certain Indians who propose to emigrate. advanced the opinion, that the right to take and employ "Be it enacted, &c. That, to enable a deputation of a slave for the public service, arises out of the imminent the Chickasaw and other Indians, to be joined by such necessity of a state of war. There was a very striking persons as the President of the United States may ap case, illustrative of this matter, which took place in point for that purpose, to examine the country West of 1814. Previous to that time no person had been allow-the Mississippi, for the purpose of selecting a portion of ed by law to be enlisted, unless he was over 21 years of it for a permanent home, the sum of fifteen thousand dol age, or the consent of his master, if he was an appren- lars be, and the same is hereby appropriated, to be paid tice, had been obtained in writing. But, at that disas- from any money in the Treasury, not otherwise approtrous hour, while sitting amidst the ruins of this capitol, priated." Congress felt the necessity of raising armies to defend the country, then attacked on its sea coast, on its North- On the 3d instant, the Committee on the Judiciary was ern frontier, and in the extreme West. Under the pres-instructed "to inquire if any of the Indian tribes, within sure of such a necessity, a law was passed, authorizing the territorial jurisdiction of any of the States, have orminors of 18 years to be enlisted, without the consent of ganized an independent government, with a view to a their masters, and the same law was afterwards repeated, permanent location in said States; and if they find that to the destruction of the contract by which a servant is any attempt of the kind has been made, to inquire into bound to his master. Yet, even in that law, the contract the expediency of reporting to this House such measures was so far acknowledged, that a part of the bounty to as they may deem necessary to arrest such permanent which the recruit had a claim was required to be paid to location." The injustice and the oppressive effect of this act, was pressed upon the House with very great force of argument by a large portion of the members from the Northern States. It was painted in colors as glowing as any which can possibly be used on the present occasion. But what did Congress do? Were they deterred by these arguments? Not at all. They passed the bill on the principle that necessity was above law, and they directed the servant to be enrolled without his master's consent. Some of these recruits fell in battle or by other casualties of the military service. But was such a thing ever heard of as the master of such an ap prentice, coming to be indemnified for the loss of his servant's time, or the expense of medical attendance? Never. Yet gentlemen cannot show any valid d'stinction between such a case and that in this bill. The difference depends only on the degree of loss or hardship, and not at all on the principle. But, more: a servant with a team was forcibly impressed, and in the impressment the servant was slain. His master had a right to his service. He was taken not by law, but by the exigencies of war, contrary to the common rights of mankind; yet it was never so much as even pretended that the Government must pay for his loss. The present bill rests on the same principle; and if you allow the claim VOL. IV.-58

his master.

Mr. BARBOUR, Chairman of the Committee on the Judiciary, observed to the House that this was a very important subject, requiring great labor, and involving many very delicate points, which should be approached with caution: that it belonged more appropriately to the Committee on Indian Affairs than to the Committee on the Judiciary: but that his opinion was that a select committee would be the best tribunal to act upon the subject: that if the Committee on the Judiciary were disposed to do so, the flood of business now upon their ta. bles, would, of itself, prevent them from bestowing upon it that consideration which its importance merited; but that, in order to give the gentleman who introduced the inquiry [Mr. FoRT, of Georgia] an opportunity of disposing of it in such a manner as he might select, he would ask that the Committee on the Judiciary be dis charged from the further consideration of the subject, and that the resolution be laid on the table.

This course was assented to by the House.
Mr. HOFFMAN submitted the following:

Resolved, That the Committee on Revolutionary Claims inquire into the expediency of making provision for carrying into effect the resolution of the Congress of the United States, of Saturday, Oct. 4, 1777, that the Governor and Council of New-York be directed to erect a

H. OF R.]

Case of Captured Africans.—Case of Marigny D'Auterive.

monument, at Continental expense, of the value of five hundred dollars, to the memory of the late Brigadier Herkimer, who commanded the militia of Tryon county, in the State of New-York, and was killed gallantly fighting in defence of the liberties of the State.

[JAN. 7, 1828.

Spanish claim, and paid all the expenses in the Courts, which were very heavy. By a regulation, however, of the Court in Georgia, he is bound to give a bond, to transport these negroes beyond the limits of the United States, and his prayer is, that the bond may be cancelled. The In submitting this resolution, Mr. HOFFMAN said, effect of granting it will be to leave these negroes and that he had offered this resolution in obedience to a duty their children in the United States, instead of having them which he owed to his own State, as well as to the memory transported to Cuba, and he need submit no remarks to of the deceased. If gentlemen examined the Journals of this House, either on the difference of treatment they the Congress of the Revolution, they would find several would here experience from what they might expect different resolutions ordering monuments in commemo- there, or on the painful severity of breaking those near ration of public services performed by the soldiers and and tender ties which bind the husband to his wife, and patriots of that eventful day. A part of these monuments the parent to his child. If the bond referred to were have been erected, and many gentlemen of this House not cancelled, the transportation of the whole must inehave probably seen that which was voted to General vitably take place. He presumed there could be but one Montgomery. Others, however, though ordered by Con feeling in the bosom of the House as to such an alternagress, had not been erected to this day. So far as the tive, especially as the measure would be productive of no order in relation to General Herkimer was concerned, all possible evil, while it went to mitigate that load, which, Mr. H. now asked for, was simply an inquiry. He had under any circumstances, must press but too heavily. at first intended to word his resolution in such a manner He had, indeed, heard a suggestion whispered, that this as to include all the other monuments which had been bill was meant to cover the infamy of evading the law resolved upon, but not built. But, on reflection, he had which prohibited the importation of slaves. Did he beconcluded it better that the motion should proceed, if at lieve that it had the remotest possible connexion, he all, from the Representatives of those States to which the would be the last to countenance it on any other occadeceased parties belonged. The duty of thus commem- sion, which went to increase the number of that unhappy orating great and valuable public services, was a sacred population. But where there was no possible connexion one, and ought long since to have been performed. The with such a design, where the slave vessel had been capquestion respecting a monument for General Herkimer tured by our own officer, and these unhappy people had had been referred to the Legislature of the State of New-been detained in the country in consequence of unfore York, but the duty certainly belonged to Congress, by seen litigation, and where a gentleman, in the pure kindwhom it had been ordered, and it was desirable that it ness of his heart, had stepped forward, at an actual pecu should be known as soon as possible, whether any thing niary sacrifice, to save them from being torn from each would be done, in order that, if not, this act of patriot- other, he could conceive of no reason why the House ism might devolve, without delay, upon the Legislature should refuse the request that this bill should go at once of his own State. to its third reading.

The resolution was then agreed to.

CASE OF CAPTURED AFRICANS.

The bill from the Senate to authorize the cancelling of a bond therein mentioned, was twice read.

It having been moved that the bill be referred to a Committee of the Whole,

Mr. P. P. BARBOUR (Chairman of the Committee on the Judiciary) expressed his conviction that the reference was wholly unnecessary. The Committee on the Judiciary had had the subject matter of this bill already before them, and had reported a bill to the House, of which, he believed, this was a transcript, totidem verbis. The circumstances of the case he would state in a few words :

Mr. McCOY hereupon withdrew his motion to commit the bill.

Mr. TAYLOR moved that it be referred to the Committee on the Judiciary, in order that the facts now stated in conversation might officially re-appear in the form of a report.

Mr. BARBOUR opposed the reference as unnecessary, and the question being taken, it was negatived.

Mr. WRIGHT, of Ohio, said a few words on the importance of the question involved in the bill, and was proceeding farther, when

Mr. BARBOUR, disclaiming all desire of precipitation, and with a view to allow time for full inquiry, moved to lay the bill on the table.

CASE OF MARIGNY D'AUTERIVE.

The House then passed to the Orders of the Day, when the bill for the relief of Marigny D'Auterive was again taken up, and the House went into Committee of the Whole, Mr. CONDICT in the Chair, on that bill-the amendment of Mr. LIVINGSTON being still under consideration.

A vessel, called "the Antelope," had been captured by one of our own revenue officers, and brought into the port of Savannah, with a cargo of 140 African negroes. The vessel had been libelled, and claims had been set up on the part of certain Portuguese and Spaniards, for a portion of the slaves, One hundred of the negroes had been sent to Cape Mesurado, in Africa; but 39 of them had been decreed to the Spanish claimants. The case Mr. J. C. CLARK, of New York, said, being a memhad been some time before the Federal Courts of Geor- ber of the committee who reported the bill under congia, and had been removed by appeal to the Supreme sideration, and having assented to the report, he would Court of the United States. It had been pending, in all, claim the indulgence of the committee for a few mo about eight years. During the whole of that time, these ments, while he assigned the reasons which induced him unfortunate creatures had been detained in the custody to sanction the report. I regret, said Mr. C., that it should of the Marshal, and in this interval, many of them had have been thought proper by honorable gentlemen, at this been married, and become heads of families-had been time, and on this subject, to enter into a grave discussion partially domesticated with us, and were desirous of re- of the question whether slaves are property. I regret maining in this country. The Spanish claimants, how that a sense of duty should have compelled my honorable ever, (who resided in Cuba,) sent an order to have the friends from the South to start a point which I had imawhole number transported to that Island; but a South-gined had long since been settled; and I still more reern gentleman, Mr. WILDE, of Georgia,] a member of gret that this debate furnishes an opportunity of getting this House, not now in his seat, in a spirit of pure bene-up, with new dresses and machinery, and for stage ef volence, and from no motives, whatever, of interest or fect, a second edition of a serio-comico play, entitled the selfishness, had, from mere kindness, bought out the "Missouri Plot." Is the ghost of the Missouri Question

its moral and physical force. Then it is that the Government has a right to call upon the slave-holding States for the equivalent for an increased representation in consequence of the slaves.

[JAN. 7, 1828.

to one common Creator, and destined to the same immortality. This would all be fine but the politician must view them as they are, sunk to the lowest point of mental and political degradation, and wait with patience for the developments of futurity.

The gentleman from Louisiana has said, that no property could be rightfully impressed! This, sir, is a no- Mr. RANDOLPH, of Virginia, then rose, and said: My vel doctrine. Every writer, in treating of the rights of motive for throwing myself on the attention of the House sovereignty, from the first to the last, tells you, that, (I was indisposed, and necessarily absent when this when a nation is at war, struggling for existence, it has question was last agitated)-my motive for throwing mythe right to avail itself of all its means, whether the sub-self on the attention of the House, is earnestly to request ject is willing, or whether he is not. At such a time, it-I could almost say adjure-but certainly respectfully does not stop to enquire whether its population be bond and earnestly to ask, that no member of this House south or free, black or white; if they can use the bayonet, or of the Ohio, and west of the Mississippi, will debate this point the musket, it is their duty to rally round the stan-question-will deign-will condescend, to debate the dard of their country, and, if necessary, sacrifice their point which has arisen-I mean, whether persons can or lives in her preservation. And here there is no discre- cannot be property; or will allow that the General Gotion. If it is the right of the Government to command, vernment can, at any time, under any circumstances, in the subject is under a corresponding obligation to obey. any manner, touch that question. I certainly am obliged We have been also told, that no precedent can be set to my worthy colleague [Mr. P. P. BARBOUR] for some of up against the Constitution. This is not disputed. But, his remarks; but I should have been full as much so if practice and precedent are resorted to, with great pro- he had omitted them. priety, to ascertain the views of enlightened politicians and statesmen; and, in some measure, to learn the prevailing sentiment of the age. Shall we reject the experience of past times, the opinions of the great and good, and continue forever in a state of political infancy? If, sir, there is no precedent to be found, from the earliest period of our history, where a slave has been paid for, under circumstances like the present, it is, to me, strong presumptive proof, that, in the opinion of the patriots of the Revolution, and the statesmen of after times, no such compensation ought to be allowed. The gentleman from Ohio has informed us, and, no doubt, truly informed us, that neither the war of our first or second independence furnish any precedents.

Legislation furnishes no instance of remuneration. The act of April 9th, 1816, authorized a compensation to be made to the owner of certain enumerated articles which had been impressed into the service, and had been damaged, captured, or destroyed, but is silent as to slaves. This could not have been an unintentional omission, as it must have been known that many cases like the present existed; and, as I am informed, notwithstanding the term property, in one section of the act, is used in its widest sense, no claim was presented to the commissioners under

that act for allowance.

This is a question the United States Government has nothing to do with. It never had, and it never can have; for the moment it lays their unhallowed hands upon the ark of that question, it ceases to be a Government. We have been told by the gentleman from New York, that this question has been settled forty years since. Sir, it was settled two hundred years since. It has been settled from the day on which the first cargo of Africans was landed on these shores, under the colonial Government. What new distinction is this, about persons not being property-as if there were any incompatibility between the two? Sir, there is none: there never has been any. Property is the creation of the law. What the law makes property, that is property; and what it declares to be not property, that is not property. There is no other distinction. The question has been settled during the longest term of prescription, for more than half a century. It has been settled ever since these States first threw off their allegiance to the British Government.

I hope the gentleman from New York will pardon me. I thank him for much that he said, especially for the manner in which he spoke of his Southern brethren. The gentleman is an entire stranger to me. I certainly bave every species of good feeling towards him. But I must take exception to one term he employed. He spoke of Why was it that Government claimed of Great Britain" our second war of independence." I object to this indemnity for the slaves captured and taken away during language, because I never can agree, either, that we the late war? Was it on the ground that they were "pro- were slaves before the first war, or that we were not inperty?" If so, Government has made an odious distinc-dependent when the second war was declared. But this tion between its citizens. On this principle, it should is aside from the subject. I say that slaves are made have claimed indemnity for property of every description, property by the law; and you cannot unmake them so, captured or destroyed. But no such claim has been set any more than you can alter the British debt, or the The principle on which our Government claimed tithes, or any thing which you choose to consider as an pay for the slaves, and on which it was allowed by the abuse in any foreign country. When gentlemen tell me British Government, must have been that they were per- that the Constitution is to protect us in that species of sons, human beings, having some political rights, and, as property, I answer, it is like the protection of the wolf such, should have been restored to their country on the to the lamb. We scorn it. We deny it. It is created return of peace. property by our law, and our own State Governments are able to carry that law into execution. We do not ask the aid of any Government whatever.

up.

From these considerations, sir, I am led to the conclusion, that slaves, for certain purposes, are persons; that their masters have in them only a qualified property; that Government, in cases of high necessity, growing out of a state of war, has a right to impress them into its military service, without the liability of being justly called on for indemnification.

The gentleman alluded, in one part of his speech, to the Missouri question. Sir, the Missouri question never has been settled. There was a spirit mingling in that question, which, as was once said by the gentleman from New Hampshire, [Mr. BARTLETT] was endeavoring “ to buy golden opinions from all sorts of men." A poison was infused into the decision of that question. I never felt it to be any triumph, nor do I now.

It is idle declamation, sir, to talk of the black popula. tion of this country, disconnected from the political disabilities under which they labor. The philanthropist may inveigh against slavery. He may urge the consider- Sir, let me ask the House, whether, under the laws of ation that they are of the same flesh and blood with our-old Rome, a man who was a slave was any the less proselves, descended from a common ancestry, having like perty, because, forsooth, he was a person? His being passions to gratify, and faculties to improve, accountable a person it was that made him subject to becoming pro

JAN. 7, 1828.]

Case of Marigny D'Auterive.

[II. OF R.

perty, because his master had need of his services. I the reasoning of the gentleman who has just spoken in might ask, too, what is the situation of other Govern- opposition to that of the learned gentleman from Louisments in relation to this subject; but I will not now pur-iana-for, in reference to his professional acquirements, sue that inquiry. We were told something, I know not very well what, about humanity and benevolence, and religion. Sir, that has nothing to do with the question. We are not to depend on individual views of humanity and religion. It is upon the compact-Ita lex scripta est-that is what we have to depend upon. You may cant to the end of the chapter, about whether your religon is that of the Jew or the Gentile. Your religion cannot interfere in the question. God forbid that I should say that it cannot interfere with those who are the sub-practicable rule, it was a vertical cut from top to bot jects of the question.

Suppose the framers of the Constitution, instead of using the terms which they have done in relation to slavery, (and I think it was with much more delicacy than policy | that they introduced such a periphrasis as they have done) had omitted the subject altogether. Supposing the clause for continuing the slave trade for a limited time, was not there: how would you have got hold of any pretext whatever to bring the subject under your rule or jurisdiction.

Sir, humanity and religion are very good things in their proper places; but we have no right to make our humanity and our religion, the rule of other men's actions within the sphere of neither. I will put a case--and I hope 1 shall not be misunderstood; that I shall be judged by my words, and not by any gloss which may be put upon them here or elsewhere. I will put it for the sake of putting a case, and, that I may not be accused of libelling other States, I will suppose that my own State, the State of Virginia, had made the abuse of a slave not punishable at all, and that slaves were daily and cruelly and inhumanly murdered by the masters, (a thing as much within the range of probability as many statements I have heard,) what would be the remedy? Would it be found in this House? Can you punish murder committed on the other side of the Potomac? Your jurisdiction is confined to your own territory, district, forts, and dock yards. You may cry your eyes out with humanity, but you could not touch this matter. The thing is in its proper place: it is under the jurisdiction of men of as much learning and talent, and as much humanity and religion, as can any where be found, who, knowing the disease, know the remedy, and do not chuse to suffer quacks to "step in where Angels fear to tread." Again, Sir, we have been told that the representation of this description of persons in the Constitution of 1787, was a compromise. No, Sir, it was none. There was no compromise about it, further than the whole Constitution was a compromise. We wanted a representation for our whole population; but we were weak enough to agree, that one half of that population should be represented by only three-fifths of that half. Suppose, now, that this had been a regulation for the white population, and not for the black: how would that affect the question? It would not have touched the rights of the whites. A compromise, Sir! No; there was no compromise; and why not? Because, in 1787, there existed not a man in this continent, who dared so much as breathe a whisper of a right on the part of the General Government to touch the question at all: nor can they touch it now. This Government has no more to do with it than the Khan of Tartary We are all Representatives of respectable, and some of us, of ancient and powerful Commonwealths; and our laws will, may, and must execute themselves. There may be agitators, and I know there is some real or affected agitation I mean without the Southern States,) on the subject of slavery; and the effect of this agitation may be to make the slaves themselves more miserable, but that will be the sum total of its effect.

One word more, Sir, and I have done. Suppose that

no man better deserved the title, were true, then we must lose three-fifths and the English pay for only two-fifths of the value of the slaves carried away during the last war, because three-fifths of each man was person and twofifths property! This reminds one of the judgment of Solomon, which we see depicted in the Tapestry, (and in that Book of which I ever desire to speak with respect) who ordered the child, disputed for by two mothers, to be equally divided between them; but his was a more

tom. [Some members smiling at this allusion.] I did not intend, Sir, by this remark, to excite any merriment. Permit me again to ask, before I sit down, that no man will deign ever to discuss this question. This is not "the accepted time." If ever that time does arrive, as I sincerely hope it never will, our business, sir, will not be here, but at home. Our business will be, to make our escape if we can, for this House will then be to us the den of Cacus. Our business, I repeat, will be, not here, but at home. And let me, on the other hand, remind those gentlemen who differ from me on this question, (and differ no doubt, as conscientiously from me as I do from them,) that it was just ten years from the first stirring of the question of the right of Great Britain to tax the colonies, until the spirit was got up which ended in a separation. It took ten years of goading to bring us to that point. Sir, the relation of the States to the General Government resembles, in some respects, another sort of union, more tender and more sacred in its character; yet even that will not bear continual provocation—even that near and strong relation, may be torn asunder, though there are pledges of their loves to bind the subjects of it together. He may be a very acute man-he may be a very learned man-and he may be in a train to become a very able man, but he is not a man of observation and experience, who does not see that a temper has been excited, and is exciting now on this subject, which it is not less the duty than the interest of every member of this House, in every possible mode, to allay. I know, and I speak "the words of truth and soberness" when f say, that I know that the reflecting part of our country will unite with me in this sentiment-even among those, who have conjured up all those chimeras on the subject of slavery, which we have so often seen pourtrayed both by pen and pencil. I cannot agree with the gentleman from New York, that the slaves are an unhappy race. They, no doubt, are causes of unhappiness to their owners, sometimes, and no doubt they are unhappy sometimes themselves: for who is exempt from unhappiness?

But I believe that, as a class, I have no hesitation in saying, that to the best of my knowledge and belief, they are much happier than their proprietors are now, loaded as these are with the effects of a system, which I will not now go into a discussion ef, and with the cares, and wants, and difficulties, which this very population brings upon them.

A

In regard to the claim to be provided for, in the present bill, I had thought that the old maxim was applica ble, inter arma leges silent. This slave was taken precisely in the same manner as the horses and the cart. gentleman has asked if slaves are to be considered as oxen and cattle? Sir, no man of common refinement, or any humanity, ever regarded them in the same light as oxen. Yet, gentlemen should remember that even the ox and horse, though they be but brutes, have, nevertheless, their rights. Sir, I fear I have done, what I have often done before, but very seldom of late, and what I intend rarely to do again, trespassed already too long on the patience of the House..