That was the opinion of Judge Story in 1827; but, sir, whilst contending, as I here contend, as a proposition, based in history, maintained by legislation, supported by judicial authority of the greatest weight, that slavery, as an institution, was protected by the common law of these colonies at the date of the Declaration of Independence, I go further, though not necessary to my argument, and declare that it was the common law of North and South America alike.

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Thus, Mr. President, I say that even if we admit for the moment that the common law of the nations which colonized this continent, the institution of slavery at the time of our independence, was dying away by the manumissions either gratuitous or for a price of those who held the people as slaves, yet, so far as the continent of America was concerned, North and South, there did not breathe a being who did not know that a negro, under the common law of the continent, was merchandise, was property, was a slave, and that he could only extricate himself from that status, stamped upon him by the common law of the country, by positive proof of manumission.  No man was bound to show title to his negro slave.  The slave was bound to show manumission under which he had acquired his freedom, by the common law of every colony.  Why, sir, can any man doubt, is there a gentleman here, even the Senator from Maine, who doubts that if, after the Revolution, the different States of this Union had not passed laws upon the subject to abolish slavery, to subvert this common law of the continent, every one of these States would be slave States yet?  How came they free States?  Did not they have this institution of slavery imprinted upon them by the power of the mother country?  How did they get rid of it?  All, all must admit that they had to pass positive acts of legislation to accomplish this purpose.  Without that legislation they would still be slave States.  What, then, becomes of the pretext that slavery only exists in those States where it was established by positive legislation, that it has no inherent vitality out of those States, and that slaves are not considered as property by the Constitution of the United States?

When the delegates of the several colonies which had thus asserted their independence of the British Crown met in convention, the decision of Lord Mansfield in the Sommersett case was recent, was known to all.  At the same time, a number of the northern colonies had taken incipient steps for the emancipation of their slaves.  Here permit me to say, sir, that, with a prudent regard to what the Senator from Maine (Mr. Hamlin) yesterday called the “sensitive pocket-nerve,” they all made these provisions prospective.  Slavery was to be abolished after a certain future time—­just enough time to give their citizens convenient opportunity for selling the slaves to southern planters, putting the money in their pockets, and then sending to us here, on this floor, representatives who flaunt in robes of sanctimonious holiness; who make parade of a cheap philanthropy, exercised at our expense; and who say to all men:  “Look ye now, how holy, how pure we are; you are polluted by the touch of slavery; we are free from it.”