[Footnote 100: A. DePuy Van Buren, Jottings of a Sojourn in the South
(Battle Creek, Mich., 1859), pp. 121, 122]
The shiver which John Brown's raid sent over the South was diminished by the failure of the blacks to join him, and it was largely overcome by the wave of fierce resentment against the abolitionists who, it was said, had at last shown their true colors. The final disturbance on the score of conspiracy among the negroes themselves was in the summer of 1860 at Dallas, Texas, where in the preceding year an abolitionist preacher had been whipped and driven away. Ten or more fires which occurred in one day and laid much of the town in ruins prompted the seizure of many blacks and the raising of a committee of safety. This committee reported to a public meeting on July 24 that three ringleaders in the plot were to be hanged that afternoon. Thereupon Judge Buford of the district court addressed the gathering. "He stated in the outset that in any ordinary case he would be as far from counselling mob law as any other man, but in the present instance the people had a clear right to take the law in their own hands. He counselled moderation, and insisted that the committee should execute the fewest number compatible with the public safety." [101]
[Footnote 101: Federal Union (Milledgeville, Ga.), Aug. 21, 1860, quoting the Nashville Union.]
On the whole it is hardly possible to gauge precisely the degree of popular apprehension in the premises. John Randolph was doubtless more picturesque than accurate when he said, "the night bell never tolls for fire in Richmond that the mother does not hug the infant more closely to her bosom."[102] The general trend of public expressions laid emphasis upon the need of safeguards but showed confidence that no great disasters were to be feared. The revolts which occurred and the plots which were discovered were sufficiently serious to produce a very palpable disquiet from time to time, and the rumors were frequent enough to maintain a fairly constant undertone of uneasiness. The net effect of this was to restrain that progress of liberalism which the consideration of economic interest, the doctrines of human rights and the spirit of kindliness all tended to promote.
[Footnote 102: H.A. Garland, Life of John Randolph, I, 295.]
CHAPTER XXIII
THE FORCE OF THE LAW
In many lawyers' briefs and court decisions it has been said that slavery could exist only by force of positive legislation.[1] This is not historically valid, for in virtually every American community where it existed at all, the institution was first established by custom alone and was merely recognized by statutes when these came to be enacted. Indeed the chief purpose of the laws was to give sanction and assurance to the racial and industrial adjustments already operative.
[Footnote 1: The source of this error lies doubtless in Lord Mansfield's famous but fallacious decision of 1772 in the Somerset case, which is recorded in Howell's State Trials, XX, § 548. That decision is well criticized in T.R.R. Cobb, An Inquiry into the Law of Negro Slavery in the United States of America (vol. I, all published, Philadelphia and Savannah, 1858), pp. 163-175.
Cobb's treatise, though dealing with slaves as persons only and not as property, is the best of the general analyses of the legal phase of the slaveholding régime. A briefer survey is in the Cyclopedia of Law and Procedure, William Mack ed., XXXVI (New York, 1910), 465-495. The works of G.M. Stroud, A Sketch of the Laws Relating to Slavery in the Several States (Philadelphia, 1827), and William Goodell, The American Slave Code in Theory and Practice (New York, 1853), are somewhat vitiated by the animus of their authors.