The Unconstitutionality of Slavery Part 3

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 ent.i.tled, "_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 s.h.i.+p 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 s.h.i.+p or vessel that shall lade or receive any goods or merchandize (negroes excepted) on board of his or their s.h.i.+p or vessel between Cape Blanco and Cape Mount, shall upon making entry at any of his majesty's custom houses aforesaid of the said s.h.i.+p or vessel, or before any goods or merchandize be landed or taken out of the said s.h.i.+p 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 s.h.i.+p 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, pa.s.sed 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 compet.i.tion, 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 t.i.tle 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 quant.i.ty 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 s.h.i.+p 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 pa.s.sage 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 reb.u.t.ted 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 inst.i.tution; 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 pa.s.sing 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 inst.i.tution.

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 pa.s.sage 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 pa.s.sage 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 pa.s.sed 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 pa.s.sage, 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_.

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.