The Unconstitutionality of Slavery Part 4

In several of the colonies, including some of those where slaves were most numerous, there were either no laws at all defining the persons who might be made slaves, or the laws, which attempted to define them, were so loosely framed that it cannot now be known who are the descendants of those designated as slaves, and who of those held in slavery without any color of law. As the presumption must--_under the United States const.i.tution_--and indeed under the state const.i.tutions also--be always in favor of liberty, it would probably now be impossible for a slaveholder to prove, in one case in an hundred, that his slave was descended, (through the maternal line, according to the slave code,) from any one who was originally a slave within the description given by the statutes.

When slavery was first introduced into the country, there were no laws at all on the subject. Men bought slaves of the slave traders, as they would have bought horses; and held them, and compelled them to labor, as they would have done horses, that is, by brute force. By common consent among the white race, this practice was tolerated without any law.--At length slaves had in this way become so numerous, that some regulations became necessary, and the colonial governments began to pa.s.s statutes, which _a.s.sumed_ the existence of slaves, although no laws defining the persons who might be made slaves, had ever been enacted. For instance, they pa.s.sed statutes for the summary trial and punishment of slaves; statutes permitting the masters to chastise and baptise their slaves,[9]

and providing that baptism should not be considered, in law, an emanc.i.p.ation of them. Yet all the while no act had been pa.s.sed declaring who might be slaves. Possession was apparently all the evidence that public sentiment demanded, of a master's property in his slave. Under such a code, mult.i.tudes, who had either never been purchased as slaves, or who had once been emanc.i.p.ated, were doubtless seized and reduced to servitude by individual rapacity, without any more public cognizance of the act, than if the person so seized had been a stray sheep.

_Virginia._ Incredible as it may seem, slavery had existed in Virginia fifty years before even a statute was pa.s.sed for the purpose of declaring who might be slaves; and then the persons were so described as to make the designation of no legal effect, at least as against Africans generally. And it was not until seventy eight years more, (an hundred and twenty-eight years in all,) that any act was pa.s.sed that would cover the case of the Africans generally, and make them slaves. Slavery was introduced in 1620, but no act was pa.s.sed even purporting to declare who might be slaves, until 1670. In that year a statute was pa.s.sed in these words: "That all _servants_, not being Christians, imported into this country by shipping, shall be slaves for their lives."[10]

This word "servants" of course legally describes individuals known as such to the laws, and distinguished as such from other persons generally. But no cla.s.s of Africans "imported," were known as "servants," as distinguished from Africans generally, or in any manner to bring them within the legal description of "servants," as here used.

In 1682 and in 1705 acts were again pa.s.sed declaring "that all servants," &c., imported, should be slaves. And it was not until 1748, _after slavery had existed an hundred and twenty-eight years_, that this description was changed for the following:

"That all _persons_, who have been or shall be imported into this colony," &c., &c., shall be slaves.[11]

In 1776, the only statute in Virginia, under which the slaveholders could make any claim at all to their slaves, was pa.s.sed as late as 1753, (one hundred and thirty-three years after slavery had been introduced;) all prior acts having been then repealed, without saving the rights acquired under them.[12]

Even if the colonial charters had contained no express prohibition upon slave laws, it would nevertheless be absurd to pretend that the colonial legislature had power, in 1753, to look back an hundred and thirty-three years, and arbitrarily reduce to slavery all colored persons that had been imported into, or born in the colony within that time. If they could not do this, then it follows that all the colored persons in Virginia, up to 1753, (only twenty-three years before the revolution,) and all their descendants to the present time, were and are free; and they cannot now be distinguished from the descendants of those subsequently imported. Under the presumption--furnished by the const.i.tution of the United States--that all are free, few or no exceptions could now be proved.

In North Carolina no general law at all was pa.s.sed, prior to the revolution, declaring who might be slaves,--(See Iredell's statutes, revised by Martin.)

In South Carolina, the only statutes, prior to the revolution, that attempted to designate the slaves, was pa.s.sed in 1740--after slavery had for a long time existed. And even this statute, in reality, defined nothing; for the whole purport of it was, to declare that all negroes, Indians, mulattoes and mestizoes, _except those who were then free_, should be slaves. Inasmuch as no prior statute had ever been pa.s.sed, declaring who should be slaves, _all were legally free_; and therefore all came within the exception in favor of free persons.[13]

The same law, in nearly the same words, was pa.s.sed in Georgia, in 1770.

These were the only general statutes, under which slaves were held in those four States, (Virginia, North Carolina, South Carolina and Georgia,) at the time of the revolution. They would all, for the reasons given, have amounted to nothing, as a foundation for the slavery now existing in those states, even if they had not been specially prohibited by their charters.

[Footnote 9: "_Chastised._" An act pa.s.sed in South Carolina in 1740, authorized slaves to sue for their liberty, by a guardian appointed for the purpose. The act then provides that if judgment be for the slave, he shall be set free, and recover damages; "but in case judgment shall be given for the defendant, (the master,) the said court is hereby fully empowered to inflict such corporeal punishment, not extending to life or limb, on the ward of the plaintiff, (the slave) as they in their discretion shall see fit."

_Brevard's Digest, vol. 2, p. 130._

"_Baptised._" In 1712 South Carolina pa.s.sed this act:

"Since charity and the Christian religion which we profess, obliges us to wish well to the souls of all men, and that religion may not be made a pretence to alter any man's property and right, and that no persons may neglect to baptize their negroes or slaves, or suffer them to be baptized, for fear that thereby they should be manumitted and set free: _Be it therefore enacted_, That it shall be, and is hereby declared lawful for any negro or Indian slave, or any other slave or slaves whatsoever, to receive and profess the Christian faith, and be thereunto baptised. But that notwithstanding such slave or slaves shall receive and profess the Christian religion, and be baptised, he or they shall not thereby be manumitted or set free, or his or their owner, master or mistress lose his or their civil right, property and authority over such slave or slaves, but that the slave or slaves, with respect to his or their servitude, shall remain and continue in the same state and condition, that he or they was in before the making of this act."--_Grimke, p. 18. Brevard, vol. 2, p. 229._

In 1667, the following statute was pa.s.sed in Virginia:

"Whereas, some doubts have arisen whether children that are slaves by birth, and by the charity and piety of their owners made partakers of the blessed sacrament of baptism, should by virtue of their baptism be made free; _It is enacted and declared by this grand a.s.sembly, and the authority thereof_, that the confering of baptism doth not alter the condition of the person as to his bondage or freedom; that divers masters, freed from this doubt, may more carefully endeavor the propagation of Christianity by permitting children, though slaves, or those of greater growth, if capable to be admitted to that sacrament."--_Hening's Statutes, vol. 2, p. 260._]

[Footnote 10: Hening, vol. 2, p. 283.]

[Footnote 11: Hening, vol. 5, p. 547-8.]

[Footnote 12: In 1753 Virginia pa.s.sed a statute, occupying some twelve or fifteen pages of the statute book, and intended to cover the whole general subject of slavery. One of the sections of this act is as follows:

"That all and every other act and acts, clause and clauses, heretofore made, for or concerning any matter or thing within the provision of this act, shall be and are hereby repealed."--_Hening's Statutes, vol. 6, p.

369._

No reservation being made, by this section, of rights acquired under former statutes, and slave property being a matter dependent entirely upon statute, all t.i.tle to slave property, acquired under former acts, was by this act annihilated; and all the slaves in the State were made freemen, _as against all prior legislation_. And the slaves of the State were thenceforward held in bondage only by virtue of another section of the same act, which was in these words:

"That all persons _who have been_, or shall be imported into this colony, by sea or land, and were not Christians in their native country, except Turks and Moors in amity with his majesty, and such who can prove their being free in England, or any other Christian country, before they were shipped for transportation hither, shall be accounted slaves, and as such be here bought and sold, notwithstanding a conversion to Christianity after their importation."--_Hening, vol. 6, p. 356-7._

The act also provided, "That all children shall be bond or free, according to the condition of their mothers and the particular directions of this act."]

[Footnote 13: The following is the preamble and the important enacting clause of this statute of 1740:

"Whereas, in his majesty's plantations in America, slavery has been introduced and allowed; and the people commonly called negroes, Indians, mulattos and mestizoes have (been) deemed absolute slaves, and the subjects of property in the hands of particular persons; the extent of whose power over such slaves ought to be settled and limited by positive laws, so that the slaves may be kept in due subjection and obedience, and the owners and other persons having the care and government of slaves, may be restrained from exercising too great vigor and cruelty over them; and that the public peace and order of this province may be preserved: _Be it enacted_, That all negroes, Indians, (_free_ Indians in amity with this government, and negroes, mulattos and mestizoes, _who are now free, excepted_,) mulattos and mestizoes, who now are or shall hereafter be in this province, and all their issue and offspring born or to be born, shall be and they are hereby declared to be and remain forever hereafter absolute slaves, and shall follow the condition of the mother," &c.--_Grimke, p. 163-4. Brevard, vol. 2, p. 229._]

CHAPTER V.

THE DECLARATION OF INDEPENDENCE.

Admitting, for the sake of the argument, that prior to the revolution, slavery had a const.i.tutional existence, (so far as it is possible that crime can have such an existence,) was it not abolished by the declaration of independence?

The Declaration was certainly the const.i.tutional law of this country for certain purposes. For example, it absolved the people from their allegiance to the English crown. It would have been so declared by the judicial tribunals of this country, if an American, during the revolutionary war or since, had been tried for treason to the crown. If, then, the declaration were the const.i.tutional law of the country for that purpose, was it not also const.i.tutional law for the purpose of recognizing and establishing, as law, the natural and inalienable right of individuals to life, liberty and the pursuit of happiness? The lawfulness of the act of absolving themselves from their allegiance to the crown, was avowed by the people of the country--and that too in the same instrument that declared the absolution--to rest entirely upon, and to be only a consequence of the natural right of all men to life, liberty and the pursuit of happiness. If, then, the act of absolution was lawful, does it not necessarily follow that the principles that legalized the act, were also law? And if the country ratified the act of absolution, did they not also necessarily ratify and acknowledge the principles which they declared legalized the act?

It is sufficient for our purpose, if it be admitted that this principle was the law of the country at that particular time, (1776)--even though it had continued to be the law only for a year, or even a day. For if it were the law of the country even for a day, it freed every slave in the country--(if there were, as we say there were not, any legal slaves then in the country.) And the burden would then be upon the slaveholder to show that slavery had _since_ been _const.i.tutionally_ established. And to show this, he must show an express _const.i.tutional_ designation of the particular individuals, who have since been made slaves. Without such particular designation of the individuals to be made slaves, (and not even the present const.i.tutions of the slave States make any such designation,) all const.i.tutional provisions, purporting to authorize slavery, are indefinite, and uncertain in their application, and for that reason void.

But again. The people of this country--in the very instrument by which they first announced their independent political existence, and first a.s.serted their right to establish governments of their own--declared that the natural and inalienable right of all men to life, liberty and the pursuit of happiness, was a "_self-evident truth_."

Now, all "_self-evident truths_," except such as may be explicitly, or by necessary implication, denied, (and no government has a right to deny any of them,) enter into, are taken for granted by, and const.i.tute an essential part of all const.i.tutions, compacts and systems of government whatsoever.--Otherwise it would be impossible for any systematic government to be established; for it must obviously be impossible to make an actual enumeration of all the "self-evident truths," that are to be taken into account in the administration of such a government. This is more especially true of governments founded, like ours, upon contract. It is clearly impossible, in a contract of government, to enumerate all the "self-evident truths" which must be acted upon in the administration of law. And therefore they are _all_ taken for granted, unless particular ones be plainly denied.

This principle, that all "self-evident truths," though not enumerated, make a part of all laws and contracts, unless clearly denied, is not only indispensable to the very existence of civil society, but it is even indispensable to the administration of justice in every individual case or suit, that may arise, out of contract or otherwise, between individuals. It would be impossible for individuals to make contracts at all, if it were necessary for them to enumerate all the "self-evident truths," that might have a bearing upon their construction before a judicial tribunal. All such truths are therefore taken for granted. And it is the same in all compacts of government, unless particular truths are plainly denied. And governments, no more than individuals, have a right to deny them in any case. To deny, in any case, that "self-evident truths" are a part of the law, is equivalent to a.s.serting that "self-evident falsehood" is law.

If, then, it be a "self-evident truth," that all men have a natural and inalienable right to life, liberty and the pursuit of happiness, _that truth_ const.i.tutes a part of all our laws and all our const.i.tutions, unless it have been unequivocally and authoritatively denied.

It will hereafter be shown that this "self-evident truth" has _never been denied_ by the people of this country, in their fundamental const.i.tution, or in any other explicit or authoritative manner. On the contrary, it has been reiterated, by them, annually, daily and hourly, for the last sixty-nine years, in almost every possible way, and in the most solemn possible manner. On the 4th of July, '76, they collectively a.s.serted it, as their justification and authority for an act the most momentous and responsible of any in the history of the country. And this a.s.sertion has never been retracted by us, as a people. We have virtually re-a.s.serted the same truth in nearly every state const.i.tution since adopted. We have virtually re-a.s.serted it in the national const.i.tution.

It is a truth that lives on the tongues and in the hearts of all. It is true we have, in our practice, been so unjust as to withhold the benefits of this truth from a certain cla.s.s of our fellow men.--But, even in this respect, this truth has but shared the common fate of other truths. They are generally allowed but a partial application. Still, this truth itself, _as a truth_, has never been denied by us, _as a people_, in any authentic form, or otherwise than impliedly by our practice in particular cases. If it have, say when and where. If it have not, it is still law; and courts are bound to administer it, as law, impartially to all.

Our courts would want no other authority than this truth, thus acknowledged, for setting at liberty any individual, other than one having negro blood, whom our governments, state or national, should a.s.sume to authorize another individual to enslave. Why, then, do they not apply the same law in behalf of the African? Certainly not because it is not as much the law of his case, as of others. _But it is simply because they will not._ It is because the courts are parties to an understanding, prevailing among the white race, but expressed in no authentic const.i.tutional form, that the negro may be deprived of his rights at the pleasure of avarice and power. And they carry out this unexpressed understanding in defiance of, and suffer it to prevail over, all our const.i.tutional principles of government--all our authentic, avowed, open and fundamental law.

CHAPTER VI.

THE STATE CONSt.i.tUTIONS OF 1789.

Of all the state const.i.tutions, that were in force at the adoption of the const.i.tution of the United States, in 1789, _not one of them established, or recognized slavery_.

All those parts of the state const.i.tutions, (i.e. of the old thirteen states,) that recognize and attempt to sanction slavery, _have been inserted, by amendments, since the adoption of the const.i.tution of the United States_.

All the states, except Rhode-Island and Connecticut, formed const.i.tutions prior to 1789. Those two states went on, beyond this period, under their old charters.[14]

The eleven const.i.tutions formed, were all democratic in their general character. The most of them eminently so. They generally recognized, in some form or other, the natural rights of men, as one of the fundamental principles of the government. Several of them a.s.serted these rights in the most emphatic and authoritative manner. Most or all of them had also specific provisions incompatible with slavery. Not one of them had any specific recognition of the existence of slavery. Not one of them granted any specific authority for its continuance.

The only provisions or words in any of them, that could be claimed by any body as recognitions of slavery, are the following, viz.