The Unconstitutionality of Slavery Part 2

For the more convenient consideration of this point, we will divide the const.i.tutional history of the country into three periods; the first embracing the time from the first settlement of the country up to the Declaration of Independence; the second embracing the time from the Declaration of Independence to the adoption of the Const.i.tution of the United States in 1789; and the third embracing all the time since the adoption of the Const.i.tution of the United States.

Let us now consider the first period; that is, from the settlement of the country, to the Declaration of Independence.

[Footnote 3: United States _vs._ Fisher, 2 Cranch, 390.]

CHAPTER III.

THE COLONIAL CHARTERS.

When our ancestors came to this country, they brought with them the common law of England, including the writ of _habeas corpus_, (the essential principle of which, as will hereafter be shown, is to deny the right of property in man,) the trial by jury, and the other great principles of liberty, which prevailed in England, and which have made it impossible that her soil should be trod by the foot of a slave.

These principles were incorporated into all the charters, granted to the colonies, (if all those charters were like those I have examined, and I have examined nearly all of them.)--The general provisions of those charters, as will be seen from the extracts given in the note, were, that the laws of the colonies should "not be repugnant or contrary, but as nearly as circ.u.mstances would allow, conformable to the laws, statutes and rights of our kingdom of England."[4]

Those charters were the fundamental const.i.tutions of the colonies, with some immaterial exceptions, up to the time of the revolution; as much so as our national and state const.i.tutions are now the fundamental laws of our governments.

The authority of these charters, during their continuance, and the general authority of the common law, prior to the revolution, have been recognized by the Supreme Court of the United States.[5]

No one of all these charters that I have examined--and I have examined nearly all of them--contained the least intimation that slavery had, or could have, any legal existence under them. Slavery was therefore as much unconst.i.tutional in the colonies, as it was in England.

It was decided by the Court of King's Bench in England--Lord Mansfield being Chief Justice--before our revolution, and while the English Charters were the fundamental law of the colonies--that the principles of English liberty were so plainly incompatible with slavery, that even if a slaveholder, from another part of the world, brought his slave into England--though only for a temporary purpose, and with no intention of remaining--he nevertheless thereby gave the slave his liberty.

Previous to this decision, the privilege of bringing slaves into England, for temporary purposes, and of carrying them away, had long been tolerated.

This decision was given in the year 1772.[6] And for aught I see, it was equally obligatory in this country as in England, and must have freed every slave in this country, if the question had then been raised here.

But the slave knew not his rights, and had no one to raise the question for him.

The fact, that slavery was _tolerated_ in the colonies, is no evidence of its legality; for slavery was tolerated, to a certain extent, in England, (as we have already seen,) for many years previous to the decision just cited--that is, the holders of slaves from abroad were allowed to bring their slaves into England, hold them during their stay there, and carry them away when they went. But the toleration of this practice did not make it lawful, notwithstanding all customs, not palpably and grossly contrary to the principles of English liberty, have great weight, in England, in establishing law.

The fact, that England _tolerated_, (i.e. did not punish criminally,) the African _slave-trade_ at that time, could not legally establish slavery in the colonies, _any more than it did in England_--especially in defiance of the positive requirements of the charters, that the colonial legislation should be consonant to reason, and not repugnant to the laws of England.

Besides, the mere toleration of the slave _trade_ could not make slavery itself--_the right of property in man_--lawful any where; not even on board the slave ship. Toleration of a wrong is not law. And especially the toleration of a wrong, (i.e. the bare omission to punish it criminally,) does not legalize one's claim to property obtained by such wrong. Even if a wrong can be legalized at all, so as to enable one to acquire rights of property by such wrong, it can be done only by an explicit and positive provision.

The English statutes, on the subject of the slave trade, (so far as I have seen,) never attempted to legalize the right of property in man, _in any of the thirteen North American colonies_. It is doubtful whether they ever attempted to do it any where else. It is also doubtful whether Parliament had the power--or perhaps rather it is certain that they had not the power--to legalize it any where, if they had attempted to do so.[7] And the cautious and curious phraseology of their statutes on the subject, indicates plainly that they themselves either doubted their power to legalize it, or feared to exercise it. They have therefore chosen to connive at slavery, to insinuate, intimate, and imply their approbation of it, rather than risk an affirmative enactment declaring that one man may be the property of another. But Lord Mansfield said, in Somerset's case, that slavery was "_so odious that nothing can be suffered to support it, but positive law_."--No such positive law (I presume) was ever pa.s.sed by parliament--certainly not with reference to any of these thirteen colonies.

The statute of 1788, (which I have not seen,) in regard to the slave _trade_, may perhaps have relieved those engaged in it, in certain cases, from their liability to be punished criminally for the act. But there is a great difference between a statute, that should merely screen a person from punishment for a crime, and one that should legalize his right to property acquired by the crime. Besides, this act was pa.s.sed after the separation between America and England, and therefore could have done nothing towards legalizing slavery in the United States, even if it had legalized it in the English dominions.

The statutes of 1750, (23, George 2d, Ch. 31,) may have possibly authorized, by implication, (so far as parliament could thus authorize,) the colonial governments, (if governments they could be called,) _on that coast of Africa_, to allow slavery under certain circ.u.mstances, _and within the "settlements" on that coast_. But, if it did, it was at most a grant of a merely local authority. It gave no authority to carry slaves from the African coast. But even if it had purported distinctly to authorize the slave trade from Africa to America, and to legalize the right of property in the particular slaves thereafter brought from Africa to America, it would nevertheless have done nothing towards legalizing the right of property in the slaves that had been brought to, and born in, the colonies for an hundred and thirty years previous to the statute. Neither the statute, nor any right of property acquired under it, (in the individual slaves thereafterwards brought from Africa,) would therefore avail anything for the legality of slavery in this country now; because the descendants of those brought from Africa under the act, cannot now be distinguished from the descendants of those who had, for the hundred and thirty years previous, been held in bondage without law.

But the presumption is, that, even after this statute was pa.s.sed in 1750, if the slave trader's _right of property_ in the slave he was bringing to America, could have been brought before an English court for adjudication, the same principles would have been held to apply to it, as would have applied to a case arising within the island of Great Britain. And it must therefore always have been held by English courts, (in consistency with the decision in Somerset's case,) that the slave trader had no legal ownership of his slave. And if the slave trader had no legal right of property in his slave, he could transfer no legal right of property to a purchaser in the colonies. Consequently the slavery of those that were brought into the colonies after the statute of 1750, was equally illegal with that of those who had been brought in before.[8]

The conclusion of the whole matter is, that until some reason appears against them, we are bound by the decision of the King's bench in 1772, and the colonial charters. That decision declared that there was, at that time, in England, no right of property in man, (notwithstanding the English government had for a long time connived at the slave trade.)--The colonial charters required the legislation of the colonies to be consonant to reason, and not repugnant or contrary, but conformable, or agreeable, as nearly as circ.u.mstances would allow, to the laws, statutes and rights of the realm of England. That decision, then, if correct, settled the law both for England and the colonies. And if so, there was no _const.i.tutional_ slavery in the colonies up to the time of the revolution.

[Footnote 4: The second charter to Virginia (1609) grants the power of making "orders, ordinances, const.i.tutions, directions and instructions,"

"so always as the said statutes, ordinances and proceedings, as near as conveniently may be, be agreeable to the laws, statutes, government and policy of this our realm of England."

The third charter (1611-12) gave to the "General Court" "power and authority" to "make laws and ordinances" "so always as the same be not contrary to the laws and statutes of our realm of England."

The first charter to Carolina, (including both North and South Carolina,) dated 1663, authorized the making of laws under this proviso--"Provided nevertheless, that the said laws be consonant to reason, and as near as may be conveniently, agreeable to the laws and customs of this our kingdom of England."

The second charter (1665) has this proviso. "Provided nevertheless, that the said laws be consonant to reason, and as near as may be conveniently, agreeable to the laws and customs of this our realm of England."

The charter to Georgia, (1732,) an hundred years after slavery had actually existed in Virginia, makes no mention of slavery, but requires the laws to be "reasonable and not repugnant to the laws of this our realm." "The said corporation shall and may form and prepare laws, statutes and ordinances fit and necessary for and concerning the government of the said colony, and not repugnant to the laws and statutes of England."

The charter to Maryland gave the power of making laws, "So, nevertheless, that the laws aforesaid be consonant to reason, and be not repugnant or contrary, but (so far as conveniently may be,) agreeable to the laws, statutes, customs, and rights of this our kingdom of England."

The charter granted to Sir Edward Plowden had this proviso. "So, nevertheless, that the laws aforesaid be consonant to reason, and not repugnant and contrary, (but as convenient as may be to the matter in question,) to the laws, statutes, customs and rights of our kingdoms of England and Ireland."

In the charter to Pennsylvania, power was granted to make laws, and the people were required to obey them, "Provided nevertheless that the said laws be consonant to reason, and be not repugnant or contrary, but, as near as conveniently may be, agreeable to the laws, statutes, and rights of this our kingdom of England."

I have not been able to find a copy of the charter granted to the Duke of York, of the territory comprising New York, New Jersey, &c. But Gordon, in his history of the American Revolution, (vol. 1. p. 43,) says, "The king's grant to the Duke of York, is plainly restrictive to the laws and government of England."

The charter to Connecticut gave power "Also from time to time, to make, ordain and establish all manner of wholesome and reasonable laws, statutes, ordinances, directions and instructions, not contrary to the laws of this realm of England."

The charter to the Ma.s.sachusetts Bay Colony, (granted by William and Mary,) gave "full power and authority, from time to time, to make, ordain and establish all manner of wholesome and reasonable orders, laws, statutes and ordinances, directions and instructions, either with penalties or without, so as the same be not repugnant or contrary to the laws of this our realm of England."

The charter to Rhode Island granted the power of making laws, "So as such laws, ordinances, const.i.tutions, so made, be not contrary and repugnant unto, but (as near as may be) agreeable to the laws of this our realm of England, considering the nature and const.i.tution of the place and people there."

Several other charters, patents, &c. that had a temporary existence, might be named, that contained substantially the same provision.]

[Footnote 5: In the case of the town of Pawlet _v._ Clark and others, the court say--

"Let us now see how far these principles were applicable to New Hampshire, at the time of issuing the charter to Pawlet.

"New Hampshire was originally erected into a royal province in the thirty-first year of Charles II., and from thence until the revolution continued a royal province, under the immediate control and direction of the crown. By the first royal commission granted in 31 Charles II., among other things, judicial powers, in all actions, were granted to the provincial governor and council, 'So always that the form of proceeding in such cases, and the judgment thereupon to be given, be as consonant and agreeable to the laws and statutes of this our realm of England, as the present state and condition of our subjects inhabiting within the limits aforesaid (i.e. of the province) and the circ.u.mstances of the place will admit.' _Independent, however, of such a provision, we take it to be a clear principle that the common law in force at the emigration of our ancestors, is deemed the birthright of the colonies, unless so far as it is inapplicable to their situation, or repugnant to their other rights and privileges._ _A fortiori_ the principle applies to a royal province."--(9 Cranch's U. State's Reports, 332-3.)]

[Footnote 6: Somerset _v._ Stewart.--Lofft's Reports, p. 1 to 19, of Easter Term, 1772. In the Dublin edition the case is not entered in the Index.]

[Footnote 7: Have parliament the const.i.tutional prerogative of abolishing the writ of _habeas corpus_? the trial by jury? or the freedom of speech and the press? If not, have they the prerogative of abolishing a man's right of property in his own person?]

[Footnote 8: Mr. Bancroft, in the third volume of his history, (pp. 413, 14,) says:

"And the statute book of England soon declared the opinion of its king and its parliament, that 'the trade,'" (by which he means the slave trade, of which he is writing,) 'is highly beneficial and advantageous to the kingdom and the colonies.' To prove this he refers to statute of "1795, 8 and 10 Wm. 3, ch. 26." (Should be 1797, 8-9 and 10 Wm. 3, ch.

26.)

Now the truth is that, although this statute may have been, and very probably was designed to _insinuate_ to the slave traders the personal approbation of parliament to the slave trade, yet the statute itself says not a word of slaves, slavery, or the slave trade, except to forbid, under penalty of five hundred pounds, any governor, deputy-governor or judge, in the colonies or plantations in America, or any other person or persons, for the use or on the behalf of such governor, deputy-governor or judges, to be "a factor or factor's agent or agents" "for the sale or disposal of any negroes."

The statute does not declare, as Mr. Bancroft a.s.serts, that "the (slave) trade is highly beneficial and advantageous to the kingdom and the colonies;" but that "_the trade to Africa_ is highly beneficial and advantageous," &c. It is an _inference_ of Mr. Bancroft's that "the trade to Africa" was the _slave_ trade. Even this inference is not justified by the words of the statute, considering them in that legal view, in which Mr. Bancroft's remarks purport to consider them.

It is true that the statute a.s.sumes that "_negroes_" will be "imported"

from Africa into "England," (where of course they were not slaves,) and into the "plantations and colonies in America." But it nowhere calls these "negroes" _slaves_, nor a.s.sumes that they are slaves. For aught that appears from the statute, they were free men and pa.s.sengers, voluntary emigrants, going to "England" and "the plantations and colonies" as laborers, as such persons are now going to the British West Indies.

The statute, although it apparently desires to insinuate or faintly imply that they are property, or slaves, nevertheless studiously avoids to acknowledge them as such distinctly, or even by any necessary implication; for it exempts them from duties as merchandize, and from forfeiture for violation of revenue laws, and it also relieves the masters of vessels from any obligation to render any account of them at the custom houses.

When it is considered that slavery, property in man, can be legalized, according to the decision of Lord Mansfield, by nothing less than positive law; that the rights of property and person are the same on board an English ship, as in the island of Great Britain; and that this statute implies that these "negroes" were to be "imported" into "England," as well as into the "Plantations and colonies in America,"