but conformable, or agreeable, as nearly as circumstances would allow, to the laws, statutes and rights of the realm of

was a tacit understanding between the goverument 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, much more an act to prohibit, than to authorize the slave trade.

sup

The only possible legal inference from the statute, so far as it concerns the " plying 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 de. cisive 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:

England." That decision, then, if correct, settled the law both for England and the colonies.

constitutional slavery in the colonies revolution.

And if so, there was no

up to the time of the

"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.

CHAPTER IV.

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.

mon sense.

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 comLord 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,

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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 mustder 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,* and providing that baptism should not be considered,

*"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 re

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.” *

ceive 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.

* Hening, vol. 2, p. 283.