Partial attempts were however made on the 28th of May and the first three days of June, which were unsuccessful. On the 7th Hadgi Ismain Bey, commander of the Tripoline cavalry, quitted his post with some followers, and escaped to Egypt, carrying with him the military chest. The Bey of Bengazi was also reported to be wavering, and Eaton in his despatches to Commodore Barron, earnestly urged him to send a few marines and some money, by means of which he pledged himself soon to appear in Tripoli and liberate his captive countrymen.
On the 10th the Tripoline forces received a large accession, and the Beys determined to make a desperate effort. The action was begun by some of their cavalry, who attempted to descend a pass leading to the plain near the town; they were met by a body of Hamet's mounted Arabs, which resisted the attack gallantly, and succeeded in repelling it. Reinforcements appearing on each side, the action became general, and it was supposed that at least five thousand men were engaged. The Tripolines were driven off with some loss; but pursuit was impossible, and Eaton was obliged still to remain, hoping or rather wishing for the reinforcements he had so long requested. At Bomba and since his arrival at Derne, he had received communications from the commanding officer of the American forces in the Mediterranean, which gave him great anxiety, and his situation was every day becoming more uncertain and painful. His doubts were however terminated on the 11th, when the frigate Constellation entered the harbor, bringing despatches from Tripoli, dated the 6th; in order to understand the nature of these several communications, and of his feelings, it will be necessary to relate the occurrences at and before that city since September 1804.
(To be continued.)
For the Southern Literary Messenger.
REMARKS ON A NOTE TO BLACKSTONE'S COMMENTARIES, VOL. I, PAGE 423.
MR. WHITE,—I have read the Note on a passage in Blackstone's Commentaries, which you gave us in your last, with some surprise. I had supposed before, that no gentleman of any intelligence could be found within the four corners of our state, who would seriously undertake to maintain that our domestic slavery, which is obviously the mere creature of our own positive law, is so right and proper in itself, that we are under no obligation whatever to do any thing to remove, or lessen it, as soon as we can. I had thought, indeed, that it was a point conceded on all hands, that, wrong in its origin and principle, it was to be justified, or rather excused, only by the stern necessity which had imposed it upon us without our consent, and which still prevented us from throwing it off at once, without a degree of danger which we could not properly encounter. And, at any rate, I had imagined that all of us were fully satisfied, by this time, that it was an evil of such injurious influence upon our moral, political, and civil interests, that we owed it to ourselves as well as to our subjects, to reduce, and remove it, as soon, and as fast as possible, consistently with the rights which we had created or sanctioned by our laws; and with other considerations which we were bound to regard. In all this, however, it seems, I was reckoning without my host, the author of the article before me, who has come forward, at this late hour, to assert the absolute rectitude and utility of the system, with all the power of his pen. I do not, however, by any means, feel disposed to question his perfect right to do so, or to deny for a moment the ingenuity with which he has labored to maintain his novel position. On the contrary, I freely acknowledge both; but believing at the same time, as I do, that his reasonings are false in their principle, and pernicious in their tendency, I must beg leave to follow his annotations with a few remarks.
And first, the Annotator, after declaring that he has been impelled to defend our domestic slavery "by a pious reverence for the institutions of our forefathers," (a very honorable motive; but strangely misapplied,) proceeds to say: "It is hardly necessary to expose the sophistry by which Mr. Blackstone affects to prove that slavery cannot have had a lawful origin. We do not pretend to trace our title to its source. We have no call to sit in judgment between the conquered African and his conqueror. We rest our defence on principles which legitimate our title, whatever its origin may have been. Yet it may not be amiss to say a few words to show the fallacy of those plausible and imposing dogmas, with which we too often suffer ourselves to be talked down." Now I have always regarded the reasoning of Blackstone on this point as absolutely unanswerable; and I am happy to know that I am not alone in my opinion of its weight; for the late venerable Judge Tucker, I see, in his note upon the same passage, (which I commend to all your readers,) after quoting it at length, adds these words: "Thus by the most clear, manly, and convincing reasoning, does this excellent author refute every claim, upon which the practice of slavery is founded, or by which it has been supposed to be justified, at least, in modern times." I will not, however, too hastily conclude against the Annotator's objections; but endeavor to weigh them with due care. He proceeds thus: "Slavery," says Mr. Blackstone, "cannot originate in compact, because the transaction excludes the idea of an equivalent." This is the substance of Blackstone's argument on this head; but does not give us a full idea of its force. His own statement of it is as follows: "But secondly, it is said that slavery may begin 'jure civili' when one man sells himself to another. This, if only meant of contracts to serve or work for another, is very just; but when applied to strict slavery, in the sense of the laws of old Rome or modern Barbary, is also impossible. Every sale implies a price, a quid pro quo, an equivalent given to the seller in lieu of what he transfers to the buyer; but what equivalent can be given for life and liberty, both of which (in absolute slavery) are held to be in the master's disposal? His property also, the very price he seems to receive, devolves ipso facto to his master, the instant he becomes his slave. In this case, therefore, the buyer gives nothing, and the seller receives nothing: of what validity then can a sale be, which destroys the very principles upon which all sales are founded?" Now this seems to me to be pretty good logic; and how then does the Annotator answer it? Why he says: "For an answer to this specious fallacy, I shall content myself by referring you to the masterly essay of Professor Dew, who has so clearly exposed it as to leave me nothing to add." This is certainly judicious, and I cannot but commend him for his prudence, at least, in thus turning over the trouble of answering such an argument to another. How this latter gentleman, however, (who must take the compliment cum onere,) can have contrived to expose so clearly "the specious fallacy" which, it seems, lurks in it, I confess I cannot imagine; as I have not his "masterly essay" before me. No doubt his exposure must be clever; but, with all due respect for him, it is plainly impossible that it can be sound. As at present advised, therefore, I shall stick to Blackstone, or rather to his reasoning, which, as far as I can see, no human wit can ever refute.
But the Annotator takes upon himself to grapple with another argument of Blackstone, which he states in these words: "The commentator further tells us that slavery cannot lawfully originate in conquest, as a commutation for the right to kill; because this right rests on necessity, and this necessity plainly does not exist, because the victor does not kill his adversary, but makes him captive." Now this, too, I have heretofore taken for very sound logic; and why is it not perfectly so? Why because, says the Annotator, the conqueror may be in such a situation that he can only secure himself against the future hostility of his conquered enemy, by killing, or by enslaving him; and if he may enslave him himself, then he may hand him over to another to deport him; which is the mildest mode of doing the thing. Of course, "the mere captivity of his enemy does not imply the security of the captor, should he allow his prisoner to go free." And he illustrates his argument on this point, very prettily, by a figure. "The snared tiger is in your power. You may kill—you may cage him. Therefore, says Mr. Blackstone, you are under no necessity to do either, and the noble beast has a fair claim to his liberty." This is a dexterous turn; but unluckily it proceeds upon a misconception of the true point of Blackstone's argument, which the Annotator ought to have perceived is itself an answer to another. The commentator, observe, is answering the argument of Justinian, that slavery may arise "jure gentium," from a state of war; that is, from the right of a captor to kill his enemy taken prisoner in battle. "But it is an untrue position," says he, "when taken generally, that by the law of nature or nations, a man may kill his enemy; he has only a right to kill him in particular cases, in cases of absolute necessity for self-defence; and it is plain this absolute necessity did not subsist, since the victor did not actually kill him, but made him prisoner." Now the answer is obviously complete, so far as regards the point to which it applies. But, says the Annotator, it does not settle the question. Perhaps not; nor does Blackstone say that it does; but it settles the argument of Justinian; and that is all that, considered as an answer, it was intended, or could be fairly required, to do.
But why does it not even settle the question? Why, because, says the Annotator, the conqueror has a right to dispose of his captive in such a manner as to protect himself from his future hostility; and if he may not kill, it does not follow that he may not enslave, or transport him, provided it is necessary for his own security, to dispose of him in that way. Very true; but this is new matter, which demands perhaps a new answer; but does not at all invalidate the former answer to the former argument. And with regard to this new matter too, Blackstone has, in my opinion, very fairly answered it in advance by what he immediately adds, but what the Annotator, (inadvertently no doubt,) has kept back. Thus he adds: "War is itself justifiable only on principles of self-preservation, and, therefore, it gives no other right over prisoners, but merely to disable them from doing harm to us, by confining their persons; much less can it give a right to kill, torture, abuse, plunder, or even to enslave, an enemy, when the war is over." To expand this sentence a little. You may, says Blackstone, by the laws of war, put your enemy hors de combat; but you must do it, by the law of humanity, which is a prior and perpetual part of the same law of nature, with as little suffering to him as possible, consistently with your own safety. You may then, I grant you, take him prisoner, and "confine his person," that is, if you cannot venture to discharge him on his parole; but "only while the war lasts;" for the very foundation of your right to confine him grows out of the war, and vanishes, of course, with the return of peace.