"THE GREAT PROBLEM POSED BY THE U.S. CONSTITUTION": VERY SCARCE FIRST EDITION OF STEWART'S DEFIANT 1845 LEGAL ARGUMENT ASSERTING THE "FIFTH AMENDMENT GAVE THE FEDERAL GOVERNMENT THE POWER TO END SLAVERY ANYWHERE IN THE NATION"
(CONSTITUTION) STEWART, Alvan. A Legal Argument before the Supreme Court of the State of New Jersey, at the May Term, 1845, at Trenton, for the Deliverance of 4,000 Persons from Bondage. New York: Finch & Weed, 1845. Slim octavo, original printed green wrappers, original stitching; pp. (1-5), 6-52. Housed in a custom chemise and clamshell box. $1800.
First edition of Alvan Stewart's powerful Legal Argument testing slavery's persistent lawfulness in New Jersey nearly two decades before the Civil War, this very elusive work "an amazing combination of history, morality, law, politics, philosophy and constitutional analysis"—demonstrating "slavery must be understood… as a legal institution"—in original wrappers.
By the time of the American Revolution slavery was "part of the unwritten constitution of the English colonists who were about to assert their independence… there is of course something profoundly ironic about this." In the 1840s that would be keenly felt by abolitionist Alvan Stewart, a New York attorney famed for "his great ability to sway a jury." He was determined to prove that "the Fifth Amendment gave the federal government the power to end slavery anywhere in the nation." It is, perhaps, another irony that "Chief Justice Taney would assert, in Dred Scott v. Sandford, that the same amendment protected slave property in the territories" (Finkelman, Slavery, 5, 151). Stewart, Frederick Douglass and others saw that "the great problem posed by the U.S. Constitution… was in many ways the most important problem the movement faced" (Oakes, Freedom National, 16).
Stewart's legal skills came forcefully into play when New Jersey ratified a new constitution in 1844, which asserted: "All men are by nature free and independent and have certain natural and unalienable rights." That year two slaves and the daughter of a indentured servant "applied for writs of habeas corpus to test the status of slavery under the new constitution." Their cases, respectively State v. Post (1848) and State v. Van Beuren (1845), were initiated and represented by Stewart, who intended to "rid New Jersey of the last vestiges of slavery in one court action. His Argument is an amazing combination of history, morality, law, politics, philosophy and constitutional analysis," in which he cites English law in the Somerset case (1772) and the statement of Chief Justice Lemuel Shaw of the Massachusetts Supreme Judicial Court in Commonwealth v. Aves (1836): "Slavery is a relation founded in force and not in right."
Ultimately the state court rejected Stewart's argument and determined that "slavery was possible under the New Jersey Constitution, just as it was under the Declaration of Independence." He published this groundbreaking work so that it might be "read in full and to 'contribute a single mite to the deliverance of my countrymen from Slavery.'" Legal Argument stands out as a pioneering work that ably demonstrates "slavery must be understood… as a legal institution" (Finkelman, 150-55, 14-15). First edition, first printing: title page verso with "S.W. Benedict, Stereotyper and Printer 16 Spruce Street." Sabin 91629.
Text generally fresh with only light scattered foxing, mild soiling, trace of dampstaining to wrappers. A near-fine copy.