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 circumstances would allow, conformable to the laws,

statutes and rights of our kingdom of England."[4]

Those charters were the fundamental constitutions of the colonies, with

some immaterial exceptions, up to the time of the revolution; as much so

as our national and state constitutions 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 unconstitutional 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 passed 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 passed

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 circumstances,

_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 passed 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 circumstances 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 _constitutional_ 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, constitutions, 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 Massachusetts 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, constitutions, 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 constitution 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 circumstances 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 constitutional 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 asserts, 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 assumes 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 assumes that they are slaves. For aught

that appears from the statute, they were free men and passengers,

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,"

and that it therefore no more implies that they were to be _slaves_ in

"the plantations and colonies" than in "England," where we know they

could not be slaves; when these things are considered, it is perfectly

clear, as a _legal_ proposition, that the statute legalized neither

slavery in the plantations and colonies, nor the slave trade from Africa

to America--however we may suppose it to have been designed to hint a

personal approbation, on the part of parliament, of the actual traffic.

But lest I may be suspected of having either misrepresented the words of

the statute, or placed upon them an erroneous legal construction, I give

_all_ the words of the statute, that make any mention of "negroes," or

their importation, with so much of the context as will enable the reader

to judge for himself of the legal import of the whole.

The act is entitled, "_An Act to settle the Trade to Africa._" Sec. 1

recites as follows:--

"Whereas, the Trade to Africa is highly beneficial and advantageous to

this kingdom and to the Plantations and Colonies thereunto belonging."

The act contains _twenty-one_ sections, regulating trade, duties. &.,

like any other navigation act. "Negroes" are mentioned only in the

following instances and connexions, to wit:

Sec. 7. "And be it enacted by the authority aforesaid, That from and

after the four-and-twentieth day of June, one thousand six hundred

ninety-and-eight, it shall and may be lawful to and for any of the

subjects of his majesty's realms of England, as well as the said

Company,(The Royal African Company) to trade from England or any of his

majesty's plantations or colonies in America to the coast of Africa,

between Blanco and Cape Mount, answering and paying a duty of ten pounds

per centum ad valorem for the goods and merchandizes to be exported from

England or any of his majesty's plantations or colonies in America to

and for the coast of Africa, between Cape Blanco and Cape Mount, and in

proportion for a greater or lesser value, and answering and paying a

further sum and duty of ten pounds per centum ad valorem, redwood only

excepted, which is to pay five pounds per centum ad valorem, at the

place of importation upon all goods and merchandize (negroes excepted)

imported in (into) England or any of his majesty's plantations or

colonies in America, from the coast of Africa, between Cape Blanco and

Cape Mount aforesaid.* * * * And that all goods and merchandize,

(negroes excepted,) that shall be laded or put on board any ship or

vessel on the coast of Africa, between Cape Blanco and Cape Mount, and

shall be imported into England or into any of his majesty's plantations

or colonies aforesaid, shall answer and pay the duties aforesaid, and

that the master or chief officer of every such ship or vessel that shall

lade or receive any goods or merchandize (negroes excepted) on board of

his or their ship or vessel between Cape Blanco and Cape Mount, shall

upon making entry at any of his majesty's custom houses aforesaid of the

said ship or vessel, or before any goods or merchandize be landed or

taken out of the said ship or vessel (negroes excepted) shall deliver in

a manifest or particular of his cargo, and take the following oath, viz.

I, A.B., do swear that the manifest or particular now by me given in and

signed, to the best of my knowledge and belief doth contain, signify and

express all the goods, wares and merchandizes (negroes excepted) which

were laden or put on board the ship called the----, during her stay and

continuing on the coast of Africa between Cape Blanco and Cape Mount,

whereof I, A.B. am master."

Sec. 8. "And that the owner or importer of all goods and merchandize

(negroes excepted) which shall be brought to England or any of his

majesty's plantations from any port of Africa between Cape Blanco and

Cape Mount aforesaid shall make entry of all such goods and merchandize

at one of his majesty's chief custom houses in England, or in such of

his majesty's plantations where the same shall be imported," &c.

Sec. 9.* * * * "that all goods or merchandizes (negroes excepted) which

shall be brought from any part of Africa, between Cape Blanco and Cape

Mount aforesaid, which shall be unladed or landed before entry made and

signed and oath of the true and real value thereof made and the duty

paid as aforesaid shall be forfeited, or the value thereof."

Sec. 20. "And be it further enacted by the authority aforesaid, that no

governor, or deputy-governor of any of his majesty's colonies or

plantations in America, or his majesty's judges in any courts there for

the time being, nor any other person or persons for the use or on behalf

of such governor or deputy-governor or judges, from and after the

nine-and-twentieth day of September, one thousand six hundred and

ninety-eight, shall be a factor or factor's agent or agents for the said

Company,(The Royal African Company) or any other person or persons for

the sale or disposal of any negroes, and that every person offending

herein shall forfeit five hundred pounds to the uses aforesaid, to be

recovered in any of his majesty's courts of record at Westminster, by

action of debt, bill, plaint or information, wherein no essoign,

protection, privilege or wager of law shall be allowed, nor any more

than one imparlance."

Sec. 21. "Provided that this act shall continue and be in force

_thirteen years_, and from thence to the end of the next sessions of

parliament, and no longer."

Even if this act had legalized, (as in reality it did not legalize,) the

slave trade during those thirteen years, it would be impossible now to

distinguish the descendants of those who were imported under it, from

the descendants of those who had been previously, and were subsequently

imported and sold into slavery without law. The act would therefore

avail nothing towards making the existing slavery in this country legal.

The next statute, of which I find any trace, passed by parliament, with

any apparent view to countenance the slave trade, was the statute of 23d

George II., ch. 31. (1749-50.)

Mr. Bancroft has committed another still more serious error in his

statement of the _words_, (for he professes to quote precise words,) of

this statute. He says, (vol. 3, p. 414,)

"At last, in 1749, to give the highest activity to the trade, (meaning

the slave trade,) every obstruction to private enterprize was removed,

and the ports of Africa were laid open to English competition, for 'the

_slave_ trade,'--such" (says Mr. Bancroft,) "are the words of the

statute--'the _slave_ trade is very advantageous to Great Britain.'"

As words are, in this case, things--and things of the highest _legal_

consequence--and as this history is so extensively read and received as

authority--it becomes important, in a legal, if not historical, point of

view, to correct so important an error as that of the word _slave_ in

this statement. "The _words_ of the statute" are _not_ that "the _slave_

trade," but that "_the trade to and from Africa_ is very advantageous to

Great Britain." "The trade to and from Africa" no more means, _in law_,

"the _slave_ trade," than does the trade to and from China. From aught

that appears, then, from _so much_ of the preamble, "the trade to and

from Africa" may have been entirely in other things than slaves. And it

actually appears from another part of the statute, that trade was

carried on in "gold, elephant's teeth, wax, gums and drugs."

From the words immediately _succeeding_ those quoted by Mr. Bancroft

from the preamble to this statute, it might much more plausibly,

(although even from them it could not be legally) inferred that the

statute legalized the slave trade, than from those pretended to be

quoted by him. That the succeeding words may be seen, the title and

preamble to the act are given, as follows:

"_An Act for extending and improving the trade to Africa._"

"Whereas, the trade to and from Africa is very advantageous to Great

Britain, _and necessary for supplying the plantations and colonies

thereunto belonging, with a sufficient number of_ NEGROES _at reasonable

rates_; and for that purpose the said trade" (i.e. "the trade to and

from Africa") "ought to be free and open to all his majesty's subjects.

Therefore be it enacted," &c.

"Negroes" were not slaves by the English law, and therefore the word

"negroes," in this preamble, does not _legally_ mean slaves. For aught

that appears from the words of the preamble, _or even from any part of

the statute itself_, these "negroes," with whom it is declared to be

necessary that the plantations and colonies should be supplied, were

free persons, voluntary emigrants, that were to be induced to go to the

plantations as hired laborers, as are those who, at this day, are

induced, in large numbers, and by the special agency of the English

government, to go to the British West Indies. In order to facilitate

this emigration, it was necessary that "the trade to and from Africa"

should be encouraged. And the form of the preamble is such as it

properly might have been, if such had been the real object of

parliament. Such is undoubtedly the true _legal_ meaning of this

preamble, for this meaning being consistent with natural right, public

policy, and with the fundamental principles of English law, legal rules

of construction imperatively require that this meaning should be

ascribed to it, rather than it should be held to authorize anything

contrary to natural right, or contrary to the fundamental principles of

British law.

We are obliged to put this construction upon this preamble, for the

further reason that it corresponds with the enacting clauses of the

statute--not one of which mentions such a thing _as the transportation

of slaves to, or the sale of slaves in_ "the plantations and colonies."

The first section of the act is in these words, to wit.

"That it shall and may be lawful for all his majesty's subjects to trade

and traffic to and from any port or place in Africa, between the port of

Sallee in South Barbary, and the Cape of Good Hope, when, at such times,

and in such manner, and in or with such quantity of _goods_, _wares and

merchandizes_, as he or they shall think fit, without any restraint

whatsoever, save as is herein after expressed."

Here plainly is no authority given "to trade and traffic" in any thing

except what is known either to the English law, or the law of nature, as

"goods, wares or merchandizes"--among which _men_ were _not_ known,

either to the English law, or the law of nature.

The second section of the act is in these words:

"That all his majesty's subjects, who shall trade to or from any of the

ports or places of Africa, between Cape Blanco and the Cape of Good

Hope, shall forever hereafter be a body corporate and politic, in name

and in deed, by the name of the Company of Merchants Trading to Africa,

and by the same name shall have perpetual succession, and shall have a

common seal, and by that name shall and may sue, and be sued, and do any

other act, matter and thing, which any other body corporate or politic,

as such, may lawfully do."

Neither this nor any other section of the act purports to give this

"Company," in its corporate capacity, any authority to buy or sell

slaves, or to transport slaves to the plantations and colonies.

The 20th section of the act is in these words:

"And be it further enacted by the authority aforesaid, that no commander

or master of any ship trading to Africa, shall by _fraud_, _force or

violence_, or by any other indirect practice whatsoever, take on board,

or carry away from the coast of Africa, any negro or native of the said

country, or commit, or suffer to be committed, any violence on the

natives, to the prejudice of the said trade; and that every person so

offending shall, for every such offence, forfeit the sum of one hundred

pounds of lawful money of Great Britain; one moiety thereof to the use

of the said Company hereby established, and their successors, for and

towards the maintaining of said forts and settlements, and the other

moiety to and for the use of him or them who shall inform or sue for the

same."

Now, although there is perhaps no good reason to doubt that the _secret_

intention of parliament in the passage of this act, was to stimulate the

slave trade, and that there was a tacit understanding between the

government and the slave dealers, that the slave trade should go on

unharmed (in practice) by the government, and although it was

undoubtedly understood that this penalty of one hundred pounds would

either not be sued for at all, or would be sued for so seldom as

_practically_ to interpose no obstacle to the general success of the

trade, still, as no part of the whole statute gives any authority to

this "Company of Merchants trading to Africa" to transport men from

Africa against their will, and as this 29th section contains a special

prohibition to individuals, under penalty, to do so, no one can pretend

that the trade was legalized. If the penalty had been but one pound,

instead of one hundred pounds, it would have been sufficient, _in law_,

to have rebutted the pretence that the trade was legalized. The act, on

its face, and in its legal meaning, is much more an act to prohibit,

than to authorize the slave trade.

The only possible _legal_ inference from the statute, _so far as it

concerns the "supplying the plantations and colonies with negroes at

reasonable rates_," is, that these negroes were free laborers, voluntary

emigrants, that were to be induced to go to the plantations and

colonies; and that "the trade to and from Africa" was thrown open in

order that the facilities for the transportation of these emigrants

might be increased.

But although there is, in this statute, no authority given for--but, on

the contrary, a special prohibition upon--the transportation of the

natives from Africa against their will, yet I freely admit that the

statute contains one or two strong, perhaps decisive implications in

favor of the fact that slavery was allowed in the English settlements

_on the coast of Africa_, apparently in conformity with the customs of

the country, and with the approbation of parliament. But that is the

most that can be said of it. Slavery, wherever it exists, is a local

institution; and its toleration, or even its legality, _on the coast of

Africa_, would do nothing towards making it legal in any other part of

the English dominions. Nothing but positive and explicit legislation

could transplant it into any other part of the empire.

The implications, furnished by the act, in favor of the toleration of

slavery, in the English settlements, on the coast of Africa, are the

following:

The third section of the act refers to another act of parliament

"divesting the Royal African Company of their _charter_, forts, castles

and military stores, canoe-men and _castle-slaves_;" and section

thirty-first requires that such "officers of his majesty's navy," as

shall be appointed for the purpose, "shall inspect and examine the state

and condition of the forts and settlements on the coast of Africa, in

the possession of the Royal African Company, and of the number of

soldiers therein, and also the state and condition of the military

stores, castles, _slaves_, canoes and other vessels and things,

belonging to the said company, _and necessary for the use and defence of

the said forts and settlements_, and shall with all possible despatch

report how they find the same."

Here the fact is stated that the "Royal African Company," (a company

that had been in existence long previous to the passing of this act,)

had held "castle-slaves" "for the use and defence of the said forts and

settlements." The act does not say directly whether this practice was

legal or illegal; although it seems to imply that, whether legal or

illegal, it was tolerated with the knowledge and approbation of

parliament.

But the most distinct approbation given to slavery by the act, is

implied in the 28th section, in these words:

"That it shall and may be lawful for any of his majesty's subjects

trading to Africa, for the security of their goods and _slaves_, to

erect houses and warehouses, under the protection of the said forts,"

&c.

Although even this language would not be strong enough to overturn

previously established principles of English law, and give the slave

holders a legal right of property in their slaves, in any place where

English law had previously been expressly established, (as it had been

in the North American colonies,) yet it sufficiently evinces that

parliament approved of Englishmen holding slaves in the settlements _on

the coast of Africa_, in conformity with the customs of that country.

But it implies no authority for transporting their slaves to America; it

does nothing towards legalizing slavery in America; it implies no

_toleration_ even of slavery any where, except upon the coast of Africa.

Had slavery been positively and explicitly legalized on the coast of

Africa, it would still have been a local institution.

This reasoning may appear to some like quibbling; and it would perhaps

be so, were not the rule well settled that nothing but explicit and

irresistible language can be legally held to authorize anything

inconsistent with natural right, and with the fundamental principles of

a government.

That this statute did not legalize the right of property in man, (unless

as a local principle on the coast of Africa,) we have the decision of

Lord Mansfield, who held that it did not legalize it in England; and if

it did not legalize it in England, it did not legalize it in any of the

colonies where the principles of the common law prevailed. Of course it

did not legalize it in the North American colonies.

But even if it were admitted that this statute legalized the right of

property, on the part of the slave trader, in his slaves taken in Africa

after the passage of the act, and legalized the sale of such slaves in

America, still the statute would be ineffectual to sustain the legality

of slavery, _in general_, in the colonies. It would only legalize the

slavery of those particular individuals, who should be transported from

Africa to America, subsequently to the passage of this act, and in

strict conformity with the law of this act--(a thing, by the way, that

could now be proved in no case whatever.) This act was passed in

1749-50, and could therefore do nothing towards legalizing the slavery

of all those who had, for an hundred and thirty years previous, been

held in bondage in Virginia and elsewhere. And as no distinction can now

be traced between the descendants of those who were imported under this

act, and those who had illegally been held in bondage prior to its

passage, it would be of no practical avail to slavery now, to prove, (if

it could be proved,) that those introduced into the country subsequent

to 1750, were legally the property of those who introduced them.]

The Unconstitutionality of Slavery · 第 3 / 14 章