The Middle Period 1817-1858 Part 4

There can be no reasonable doubt that the negroes transferred from slavery in Africa to slavery in the English-American colonies themselves felt the amelioration of their condition, and were, in general, entirely contented with their new lot.

[Sidenote: The earliest legal recognition of slavery in the colonies.]

The relation was established in the Northern colonies, as well as in the Southern, in the early years of their existence, and it was in Ma.s.sachusetts rather than in Virginia that it first received legal recognition, and began to be changed from a purely domestic inst.i.tution by suffering governmental regulation. In the Ma.s.sachusetts "Fundamentals," or "Body of Liberties," pa.s.sed by the General Court in 1641, the slavery of negroes and Indians, and the slave-trade, were expressly legalized. In fact, so far as the colonists themselves were responsible for the introduction of negro slavery among them, the impartial historian must place the greater blame upon a Northern colony. Its citizens were first to develop commerce, and it was their ships which brought the slave cargoes from the coasts of Africa to all of the colonies.

[Sidenote: Northern colonies not well adapted to negro labor.]

[Sidenote: The Southern colonies well adapted to negro labor.]

The negroes were not, however, fitted for labor in the Northern colonies. In the first place, it was too cold for them to thrive there. A warm, moist air is the natural climate for the negro. In the second place, the {42} work to be done in these sections was not suited to his capacity. The Northern colonies had not, indeed, at that early day, developed the finer forms of industry which have subsequently distinguished that part of the country. They were then, as to their internal pursuits, almost as completely agricultural as the colonies of the South. But their farming required a great deal more of intelligence, thrift, and industry in the laborer than the negro of that day possessed. The country was broken, the good soil was limited in amount, the weather was capricious, and the management of the crops demanded judgment and discretion. On the other hand, the vast level areas of good soil, the warm, uniform climate, and the simple crops of the Southern colonies furnished the conditions favorable to the employment of negro labor.

[Sidenote: Negro slavery a temporary necessity in the South.]

It is not easy to see how the rich swamp-lands of these colonies could ever have been reclaimed and made tributary to the civilization of the world in any way but by the employment of negro labor. And it is no easier to see how the pure negro could then have been brought to do this great work save through slavery to the white race, save by being forced to contribute the muscular effort, under the direction of the superior intelligence of the white race, to the realization of objects determined by that superior intelligence. The negro is proof against malaria, and thrives under the burning sun. The white man is destroyed by the former and greatly disabled by the latter. And the pure negro would not at that period of his development labor voluntarily. These were the elements of the problem which confronted those who undertook to subject the vast marshes of the Southern colonies to cultivation and to prepare them for the {43} production of their most valuable contributions to the comforts of civilized man. The solution of the problem was negro slavery.

[Sidenote: Was negro slavery an error and an evil from the first?]

We are most of us inclined, at this day, to hold that this was an erroneous solution, and that we could have discovered a better one; but it was the solution which was reached, and we shall be wiser if we seek to understand it clearly, instead of wasting our energies in its condemnation, remembering that many of the things of the past, which, from the point of view of the present, we are p.r.o.ne to regard as error, and even as sin, are only anachronisms. In fact, those who founded the colony of Georgia thought _then_ that they had a better solution of the problem. They prohibited slavery at the outset from that colony. In fourteen years they came to regard this act as a great mistake, and the n.o.blest spirits among them acknowledged themselves in error, and joined in the movement for the introduction of negro slave-labor.

[Sidenote: Slavery legislation in the Southern colonies.]

The conditions above mentioned were undoubtedly the chief causes of the more rapid and p.r.o.nounced development of negro slavery in the Southern colonies. And that more rapid and p.r.o.nounced development directs us rather to the legislation of the Southern colonies than to that of the Northern, in following the legalization of the relation.

[Sidenote: Partus sequitur ventrem.]

Virginia naturally took the lead, and furnished the precedents for the others. The first question, both as to time and importance, which required legislative treatment, was the question of the status of the children of slaves. Where legalized marriage does not exist, the only certainty in respect to parentage is attained by regarding the mother.

Rights and status in such a condition of society are, therefore, transmitted through the female line. _Partus sequitur ventrem_ is the rule {44} not only of the civil law, but of every system of law regulating the accidents of descent among people where the mingling of the s.e.xes is not controlled by civilized marriage. Insuperable obstacles present themselves in the attempt to apply any other rule.

It was no unusual or arbitrary enactment of the Virginia legislature which, in 1662, prescribed the rule that the status of the slave mother should determine that of her offspring. This rule was followed in all the colonies, and many of them enacted it into statute law.

[Sidenote: Definitions of the slave cla.s.s.]

So long as the slaves were few in number and were not Christians the necessity for legislation defining the slave cla.s.s was not felt; but so soon as the slave-trade became more active, and slaves began to receive Christian baptism, the old customary test in regard to this matter, that of infidelity or heathenism, would no longer suffice. The colonists of that day were too conscientious to cut the knot of this difficulty by denying Christian baptism to any one seeking it. They considered it their prime duty to lead the heathen to the knowledge of Christ. It is evident that their consciences were greatly troubled over the question of the effect of Christian baptism upon the slave status. The colonial legislatures, the Home Government, and the Bishop of London were appealed to for counsel in the dilemma. The answers received from all of these were to the effect that the status of the slave was not changed by Christian baptism or conversion.

[Sidenote: The test of the slave status as fixed by the Virginia statute.]

The test of the slave status was then necessarily fixed by legislation. The Virginia statute declared all servants brought into the country by land or sea, who were not Christians in their native country at the time when they were purchased or procured, nor free in {45} England or some other Christian country, to be slaves. Exception was made of Turks and Moors in amity with the King. This statute, taken together with the rule _partus sequitur ventrem_, which rule was re-enacted, became the test of the slave cla.s.s. At the same time heavy penalties were attached to the marriage or cohabitation of white women with slaves.

[Sidenote: The legal position of the slave.]

Of course it very soon became necessary that the legal position of the slave should be definitely fixed. The legislature of Virginia again set the precedents. Concisely stated, this legislation provided that a slave could have no standing in the ordinary courts, either as party or witness; that a slave could own no property; that a slave owed obedience to the master, who might force the slave to labor, and chastise the slave even to the extreme of so injuring the slave that the slave might die in consequence thereof, without incurring the penalties of felony; that the slave could be sold or inherited as personal property; and that the offspring of the female slave belonged to the master owning her at the time of its birth.

[Sidenote: Tendency toward serf.a.ge in the Code of 1705.]

The wilful killing of a slave by anyone, even the master, was accounted murder, and extraordinary tribunals, without a jury, were const.i.tuted for the protection of his person. The Code of 1705 even contained regulations which indicated that the trend of thought and of legislation, at that juncture, was toward attaching the slave to the soil, which would have been a step upward in a course, which, if consistently followed, would have made the slave a serf. But the still prevailing rules, which allowed the slave to be seized and sold for the debts of the master, and regulated the inheritance of slaves according to the {46} law governing the descent of personal property, seem to have completely neutralized that tendency before the middle of the century had been reached.

[Sidenote: Public relations of the slave system.]

Naturally the private law accidents of the relation were first developed and fixed, but very soon the rights and powers of the community in regard to the inst.i.tution began to claim attention. The public peace and welfare must be safeguarded against the possible conduct of the slave, on the one hand, and of the master, on the other.

The legislation of Virginia set the example in these respects also.

That legislation provided that no slave should have, or carry arms, or go outside of the plantation of his master without a pa.s.s from his master, or lift his hand against a Christian; that a sheriff should arrest a runaway slave on the warrant of two justices, and might lawfully kill any slave who resisted arrest; and that no slave should be emanc.i.p.ated without the consent of the Governor and Council.

On the other hand, it provided that the master should be responsible for all damage done by his slave at any place where there was no Christian overseer, and required that any master giving freedom to his slave should pay the cost of his transportation out of the colony.

[Sidenote: The general object of the laws in respect to slaves.]

Such was substantially the law of negro slavery in all of the colonies at the beginning of the decade before the Revolution. It was perhaps more severe than this in South Carolina, and it was certainly less so in Ma.s.sachusetts.

The objects which it had in view were to secure the master's property in the slave, to enable the master to hold the slave in obedience and force him, if necessary, to labor, and to protect the public peace and welfare against the abuse of the relation by the master, and against the vicious nature of the slave.

{47} It does certainly appear that the century of law-making upon the subject had not ameliorated the condition of the slave. We must remember, however, that the first stages in the legalization of any relation sometimes make the situation appear worse than what obtained before the movement began, although it may not be worse in fact.

[Sidenote: Slavery and the Revolutionary ideas of the rights of man.]

But the period of the Revolution brought with it a great change of view in regard to the morality of slavery, and this change of idea produced great modifications in the law of slavery, all of which tended not only toward an improvement of the condition of the slave, but also toward the ultimate extinction of slavery.

When we regard the Revolution of the colonies against the motherland from the point of view of the present, we can easily see that its purpose was very different from that of the French Revolution. What it really sought and accomplished was national independence against foreign rule. Those, however, who formulated the creed of the Revolution sought its justification in the doctrine of human rights rather than in that of national rights. The philosophy of the eighteenth century was a humanitarian outburst. Politically and legally it is summed up in the very misleading propositions that all men are born equal and are endowed with freedom, and that the people have the right to change or abolish existing government at their pleasure. Whatever we may think of these doctrines now, our ancestors professed to believe in them, and there is no reason to doubt the sincerity of their profession, so far as their own consciousness went.

They saw also the inconsistency of slavery with these doctrines, and quickly came to regard slavery as an evil which should be removed as soon as possible.

{48} [Sidenote: First prohibition upon slave importation.]

The Continental Congress took the first step in this direction. Two years before it declared independence it prohibited any further importation of slaves, and repeated the prohibition two years later.

These acts are good evidence that, at the moment, the question of slavery was regarded as a matter of national concern.

The Congress was, however, so occupied with the duties pertaining to the prosecution of the war, that it failed to go forward in this matter, as well as in many other matters of national concern; and when the Confederate Congress succeeded the Continental Congress, it did so upon the basis of a written const.i.tution, or rather articles of union, which vested no powers whatsoever in it over the subject of slavery.

[Sidenote: Abolition of slavery in the Northern Commonwealths after the beginning of the Revolution.]

The separate colonies, now become "States" by the theory of the Articles of Confederation, took up the question. Ma.s.sachusetts abolished slavery substantially by her const.i.tution of 1780.

Pennsylvania provided for gradual emanc.i.p.ation by a statute of the same year. Rhode Island, Connecticut, and New Hampshire followed the example of Pennsylvania. And New York, New Jersey, Delaware, Maryland, and Virginia forbade any further importation of slaves.

[Sidenote: The Ordinance of 1787.]

Under such impulses and influences the Confederate Congress, in spite of the fact that no power in respect to slavery had been conferred upon it, a.s.sumed to pa.s.s the famous Ordinance of 1787, decreeing the free status exclusively in all of the territory then belonging to the United States north of the Ohio River. The power to enact the Ordinance could not even be derived by the most generous principles of implication from any provision in the Articles of Confederation. To justify the exercise of it by the Confederate {49} Congress it is necessary to go back to the general principle of political science that, as there was no government for this territory but the Confederate Congress, and as there were no limitations in the Articles of Confederation upon the powers of the Congress in this territory, the powers of that Congress must have extended in this territory to all subjects usually regulated by government.

The claim sometimes made that this Ordinance was a treaty between the "States" forming the Confederation, or between them and the "States"

to be formed out of that territory in the future, is altogether untenable. It was nothing more nor less than a legislative act of the Congress.

It is an incontrovertible proof of the universality and intensity of the opposition to the farther spread of slavery that the common consciousness of the age acquiesced in this most lat.i.tudinarian construction of the powers of the Confederate Congress, and that the Congress itself voted the measure with but a single dissenting voice.

[Sidenote: Slavery and the Const.i.tution of 1787.]

At the same moment that this measure was being considered in the Congress, the Const.i.tutional Convention, sitting at Philadelphia, was framing the national Const.i.tution of 1787. The att.i.tude which the nation would a.s.sume in this new instrument of its organic law toward the subject of slavery was one of the most, if not the most, important of the questions which the Convention was called upon to consider.

There can be little doubt that the men of 1787 had come to regard the question of the rights of man a little more calmly than they did during the heat of the battle with the motherland. In Luther Martin's famous letter to the legislature of Maryland upon the work of the {50} Convention of 1787, a very significant pa.s.sage concerning the existing views upon slavery occurs. He wrote: "At this time we do not generally hold this commerce" (the slave-trade) "in so great abhorrence as we have done. When our liberties were at stake we warmly felt for the common rights of men. The danger being thought to be past which threatened ourselves we are daily growing more insensible to those rights."

The Const.i.tution of 1787 contains evidence of the correctness of this statement. Among its provisions were to be found three most important compromises with the slavery interest, three most important recognitions of slavery. The first was political in its nature. It counted the negro for three-fifths of the white man in the distribution of the representation in the House of Representatives and in the Presidential Electoral Colleges. The second was commercial in its nature. It forbade the Congress to prohibit, before the year 1808, the migration or importation of such persons as the existing "States"

might see fit to admit. The third was a direct guarantee of slave property. It required the surrender to his master of an escaped slave wherever found in the United States. These were most momentous provisions. They secured slave property, increased slave property, and made slavery a vast political power in the hands of the slave-masters.