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To: jeffersondem; ProgressingAmerica; Renfrew; wardaddy; Pelham; DiogenesLamp; central_va
[BroJoeK] “The list goes on and demonstrates clearly that our Founders were fully committed to restricting and gradually abolishing slavery wherever they could.”

[jeffersondem] Charles Pinckney.

Start with that.

How about Jefferson's cousin, John Marshall? Framer, delegate to the Virginia ratifying convention; Representative; Secretary of State; and the longest serving and most influential Chief Justice in the history of the U.S. Supreme Court.

https://www.theatlantic.com/ideas/archive/2021/06/chief-justice-john-marshall-slaves/619160/

A bronze statue of him sits outside the Supreme Court Building, and a marble one stands inside. He has appeared on four postage stamps, a commemorative silver dollar, a $20 Treasury note, and a $500 Federal Reserve note. Two centuries after he wrote them, Marshall’s opinions are still read and cited. Five of the 10 opinions most cited by the Court itself are Marshall’s.

[...]

Marshall not only owned people; he owned many of them—certainly more than 300—across the years of his life. Unlike other major slaveholders, such as his cousin Thomas Jefferson, Marshall did not inherit enslaved people; he aggressively bought them when he could. Whether buying young children, or a mother and one of her children, or selling them to raise cash, he paid little attention to the enslaved families he destroyed in his lifelong quest for more human property. Marshall’s biographers assert that he was not brutal or violent toward the people he owned, and this may well be true. But Marshall had day-to-day contact with only the dozen and a half enslaved people in his household. We have no knowledge about how the overseers on Marshall’s land in other parts of Virginia treated the chief justice’s human property. Nor do we know how two of his sons, who lived about 100 miles from Marshall, in rural Fauquier County, and to whom he lent about 60 people, treated them.

Thirty-eight years after the Framing, we have Framer John Marshall continuing his lifelong effort to fully commit to restricting and gradually abolishing slavery wherever he could. In furtherance of his lifelong effort he issued the Opinion of the U.S. Supreme Court in the case of The Antelope, 23 U.S. (10 Wheat.) 66 (1825).

The Antelope, 10 Wheat (10 US) 66 (1825), MARSHALL, CJ (excerpts)

23 U.S. 114

Mr. Chief Justice MARSHALL delivered the opinion of the Court,

[...]

23 U.S. 114-115

In examining claims of this momentous importance; claims in which the sacred rights of liberty and of property come in conflict with each other; which have drawn from the bar a degree of talent and of eloquence, worthy of the questions that have been discussed; this Court must not yield to feelings which might seduce it from the path of duty, and must obey the mandate of the law.

That the course of opinion on the slave trade should be unsettled, ought to excite no surprise. The Christian and civilized nations of the world, with whom we have most intercourse, have all been engaged in it. However abhorrent this traffic may be to a mind whose original feelings are not blunted by familiarity with the practice, it has been sanctioned in modern times by the laws of all nations who possess distant colonies, each of whom has engaged in it as a common commercial business which no other could rightfully interrupt. It has claimed all the sanction which could be derived from long usage, and general acquiescence. That trade could not be considered as contrary to the law of nations which was authorized and protected by the laws of all commercial nations; the right to carry on which was claimed by each, and allowed by each.

23 U.S. 118-119

In the very full and elaborate opinion given on this case [the Louis] in explicit terms, lays down the broad principle, that the right of search is confined to a state of war. It is a right strictly belligerent in its character, which can never be exercised by a nation at peace, except against professed pirates, who are the enemies of the human race. The act of trading in slaves, however detestable, was not, he said, "the act of freebooters, enemies of the human race, renouncing every country, and ravaging every coun­try, in its boasts and vessels, indiscriminately." It was not piracy.

He also said, that this trade could not be pronounced contrary to the law of nations. "A Court, in the admininistration of law, cannot attribute criminality to an act where the law imputes none. It must look to the legal standard of mo­rality; and, upon a question of this nature, that standard must be found in the law of nations, as "fixed and evidenced by general, and ancient, and admitted practice, by treaties, and by the general ­tenor of the laws and ordinances, and the formal transactions of civilized states; and, looking to those authorities, he found a difficulty in main­taining that the transaction was legally crimi­nal."

23 U.S. 120-122

The question, whether the slave trade is prohi­bited by the law of nations has been seriously propounded, and both the affirmative and nega­tive of the proposition have been maintained with equal earnestness.

That it is contrary to the law of nature will scarcely be denied. That every man has a na­tural right to the fruits of his own labour, is ge­nerally admitted; and that no other person can rightfully deprive him of those fruits, and appro­priate them, against his will, seems to be the ne­cessary result of this admission. But from the earliest times war has existed, and war confers rights in which all have acquiesced. Among the most enlightened nations of antiquity, one of these was, that the victor might enslave the van­quished. This, which was the usage of all, could not be pronounced repugnant to the law of na­tions, which is certainly to be tried by the test of general usage. That which has received the assent of all, must be the law of all.

Slavery, then, has its origin in force; but as the world has agreed that it is a legitimate result of force, the state of things which is thus produ­ced by general consent, cannot be pronounced unlawful.

Throughout Christendom, this harsh rule has been exploded, and war is no longer considered as giving a right to enslave captives. But this triumph of humanity has not been universal: The parties to the modern law of nations do not propagate their principles by force; and Africa has not yet adopted them. Throughout the whole extent of that immense continent, so far as we know its history, it is still the law of nations that prisoners are slaves. Can those who have them­selves renounced this law, be permitted to partici­pate in its effects by purchasing the beings who are its victims?

Whatever might be the answer of a moralist to this question; a jurist must search for its legal solution, in those principles of action which are sanctioned by the usages, the national acts, and the general assent, of that portion of the world of which he considers himself as a part, and to whose law the appeal is made. If we resort to this standard as the test of international law, the question, as has already been observed, is decided in favour of the legality of the trade. Both Europe and America embarked in it; and for nearly two centuries, it was carried on without opposition, and without censure. A jurist could not say, that a practice thus supported was illegal and that those engaged in it might be punished, either personally, or by deprivation of pro­perty. In this commerce, thus sanctioned by univer­sal assent, every nation had an equal right to engage. How is this right to be lost? Each may renounce it for its own people; but can this re­ nunciation affect others?

No principle of general law is more univer­sally acknowledged, than the perfect equality of nations. Russia and Geneva have equal rights. It results from this equality, that no one can right­fully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone. A right, then, which is vested in all by the consent of all, can be devested only by con­sent; and this trade, in which all have participa­ted, must remain lawful to those who cannot be induced to relinquish it. As no nation can prescribe a rule for others, none can make a law of nations; and this traffic remains lawful to those whose governments have not forbidden it.

If it is consistent with the law of nations, it cannot in itself be piracy. It can be made so only by statute; and the obligation of the statute cannot transcend the legislative power of the state which may enact it.

If it be neither repugnant to the law of nations, nor piracy, it is almost superfluous to say in this Court, that the right of bringing in for adjudica­tion in time of peace, even where the vessel belongs to a nation which has prohibited the trade.

23 U.S. 129-130

These vessels were plundered in March, 1820, and the libel was filed in August of the same years. From that time to this, a period of more than five years, no subject of the crown of Portugal has appeared to assert his title to this property, no individual has been designated as its probable owner. This inattention to a subject of so much real interest, this total disregard of a valuable property, is so contrary to the common course of human action, as to justify serious suspicion that the real owner dares not avow himself.

That Americans, and others, who cannot use the flag of their own nation, carry on this criminal and inhuman traffic under the flags of other coun­tries, is a fact of such general notoriety, that Courts of admiralty may act upon it. It cannot be necessary to take particular depositions, to prove a fact which is matter of general and pub­lic history. This long, and otherwise unaccount­able absence, of any Portuguese claimant, fur­nishes irresistible testimony, that no such claim­ant exists, and that the real owner belongs to some other nation, and feels the necessity of concealment.


85 posted on 08/12/2023 10:25:58 AM PDT by woodpusher
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To: woodpusher; x; jeffersondem; ProgressingAmerica; Renfrew; wardaddy; Pelham; DiogenesLamp; ...
woodpusher quoting CJ John Marshall from The Antelope, 23 U.S. (10 Wheat.) 66 (1825).: "That it [slavery] is contrary to the law of nature will scarcely be denied.
That every man has a na­tural right to the fruits of his own labour, is ge­nerally admitted; and that no other person can rightfully deprive him of those fruits, and appro­priate them, against his will, seems to be the ne­cessary result of this admission.

"But from the earliest times war has existed, and war confers rights in which all have acquiesced.
Among the most enlightened nations of antiquity, one of these was, that the victor might enslave the van­quished. "

The 1825 Antelope was a complicated case, not as famous as Le Armistad in 1841, but like Armistad it resulted in freedom for most of the surviving slaves.

In woodpusher's lengthy quote Chief Justice Marshall declares his repugnance for slavery in principle, but also implies that as a Justice, he cannot simply declare it abolished, because slavery is recognized in, we would say, "settled law".

In that, Marshall was entirely typical of our Founders and in the end, about 80% of the surviving slaves were freed.

So once again, woodpusher's quotes support my arguments.

95 posted on 08/13/2023 4:56:02 AM PDT by BroJoeK (future DDG 134 -- we remember)
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