COLONIAL STATUTES.
But the colonial legislation on the subject of slavery, was not only
void as being forbidden by the colonial charters, but in many of the
colonies it was void for another reason, viz: _that it did not
sufficiently define the persons who might be made slaves_.
Slavery, if it can be legalized at all, can be legalized only by
positive legislation. Natural law gives it no aid. Custom imparts to it
no legal sanction. This was the doctrine of the King's Bench in
Somerset's case, as it is the doctrine of common sense. Lord Mansfield
said, "So high an act of dominion must be recognized by the law of the
country where it is used.* * * * The state of slavery is of such a
nature, that it is incapable of being introduced on any reasons, moral
or political--but only positive law, which preserves its force long
after the reasons, occasion, and time itself from whence it was created,
is erased from the memory. It is so odious that nothing can be suffered
to support it but positive law."
Slavery, then, being the creature of positive legislation alone, can be
created only by legislation that shall so particularly describe the
persons to be made slaves, that they may be distinguished from all
others. If there be any doubt left by the _letter_ of the law, as to the
persons to be made slaves, the efficacy of all other slave legislation
is defeated simply by that uncertainty.
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
constitution_--and indeed under the state constitutions 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 pass statutes,
which _assumed_ the existence of slaves, although no laws defining the
persons who might be made slaves, had ever been enacted. For instance,
they passed 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
emancipation of them. Yet all the while no act had been passed 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, multitudes, who had either never been purchased as slaves,
or who had once been emancipated, 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 passed 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 passed that would cover
the case of the Africans generally, and make them slaves. Slavery was
introduced in 1620, but no act was passed even purporting to declare who
might be slaves, until 1670. In that year a statute was passed 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 class 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 passed 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 passed 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
constitution 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 passed, 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 passed 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 passed,
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 passed 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 passed 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 passed 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 passed 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 assembly, 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 passed 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 title 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._]