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.]