The preamble to the State Constitution of Virginia, drawn up by George Mason, and adopted by the Convention June 29th, 1776, was written by Thomas Jefferson. In the recital of grievances against Great Britain, which had prompted the commonwealth to assume its independence, this preamble contains the following words: "By prompting our negroes to rise in arms among us; those very negroes whom, by an inhuman use of his negative, he had refused us permission to exclude by law."[24] Mr. Jefferson, long a leading member of the House of Burgesses, and most learned of all his contemporaries in the legislation of his country, certainly knew whereof he affirmed. His witness is more than confirmed by that of Mr. Madison,[25] who says: "The British Government constantly checked the attempts of Virginia to put a stop to this infernal traffick." Mr. Jefferson, in a passage which was expunged from the Declaration of Independence by New England votes in the Congress, strongly stated the same charge. And George Mason, perhaps the greatest and most influential of Virginians, next to Washington, reiterated the accusation with equal strength, in the speech in the Federal Convention, 1787, in which he urged the immediate prohibition of the slave trade by the United States. See Madison Papers, vol. iii., pp. 1388-1398. A learned Virginian antiquary has found, notwithstanding the destruction of the appropriate evidences, which will be explained anon, no less than twenty-eight several attempts made by the Burgesses to arrest the evil by their legislation, all of which were either suppressed or negatived by the proprietary or royal authority. A learned and pious Huguenot divine, having planted his family in the colony, in the first half of the last century, bears this testimony: "But our Assembly, foreseeing the ill consequences of importing such numbers among us, hath often attempted to lay a duty upon them which would amount to a prohibition, such as ten or twenty pounds a head; but no governor dare pass such a law, having instructions to the contrary from the Board of Trade at home. By this means they are forced upon us, whether we will or not. This plainly shows the African Company hath the advantage of the colonies, and may do as it pleases with the ministry."[26] These personal testimonies are recited the more carefully, because the Vandalism of the British officers at the Revolution annihilated that regular documentary evidence, to which the appeal might otherwise be made. Governor Dunmore first, and afterwards Colonel Tarleton and Earl Cornwallis, carried off and destroyed all the archives of the colony which they could seize, and among them the whole of the original journals of the House of Burgesses, except the volumes containing the proceedings of 1769 and 1772. The only sure knowledge which remains of those precious records is derived from other documents and fragmentary copies of some passages, found afterwards in the desks of a few citizens. The wonderfully complete collection of their laws edited by Hening, under the title of "Statutes at Large," was drawn from copies and collections of the acts which, having received the assent of the governors and kings, were promulgated to the counties as actual law. Of course the suppressed and negatived motions against the slave trade are not to be sought among these, but could only have been found in the lost journals of the House. But enough of the documentary evidence remains, to substantiate triumphantly the testimony of individuals.
The first act touching the importation of slaves, which was allowed by the royal governor and king, was that of the 11th William III., 1699, laying an impost of twenty shillings upon each servant or African slave imported. The motive assigned is the raising of a revenue to rebuild the Capitol or State House, lately burned down; and the law was limited to three years.[27] This impost was renewed for two farther terms of three years, by subsequent Assemblies.[28] Before the expiration of this period, the Assembly of 1705 laid a permanent duty of sixpence per head on all passengers and slaves entering the colony;[29] and this little burthen, the most which the jealousy of the British slave traders would permit, was the germ of the future taxes on the importation. This impost was increased by the Assembly of 1732, to a duty of five per centum ad valorem, for four years.[30] Subsequent Assemblies continued this tax until 1740, and then doubled it, on the plea of the war then existing.[31] During the remainder of the colonial government, the impost remained at this grade, ten per centum on the price of the slaves, and twenty per centum upon those imported from Maryland or Carolina. As the all-powerful African Company in England was not concerned in maintaining a transit of the slaves from one colony to another, after they were once off their hands, they permitted the Burgesses to do as they pleased with the Maryland and Carolina importations. Here, therefore, we have an unconfined expression of the sentiments of the Assemblies; and they showed their fixed opposition to the trade by imposing what was virtually a prohibitory duty. In 1769, the House of Burgesses passed an act for raising the duty on all slaves imported, to twenty per centum.[32] The records of the Executive Department show that this law was vetoed by the king, and declared repealed by a proclamation of William Nelson, President of the Council, April 3d, 1771. The Assembly of 1772 passed the same law again, with the substitution of a duty of £5 per head, instead of the twenty per centum, on slaves from Maryland and Carolina;[33] and it received the signature of Governor Dunmore. It may well be doubted whether it escaped the royal veto.
But the House now proceeded to a more direct effort to extinguish the nefarious traffick. Friday, March 20th, 1772, it was[34] "Resolved, that an humble address be prepared to be presented to his Majesty, to express the high opinion we entertain of his benevolent intentions towards his subjects in the colonies, and that we are thereby induced to ask his paternal assistance in averting a calamity of a most alarming nature; that the importation of negroes from Africa has long been considered as a trade of great inhumanity, and under its present encouragement may endanger the existence of his American dominions; that self-preservation, therefore, urges us to implore him to remove all restraints on his Governors from passing acts of Assembly which are intended to check this pernicious commerce; and that we presume to hope the interests of a few of his subjects in Great Britain will be disregarded, when such a number of his people look up to him for protection in a point so essential; that when our duty calls upon us to make application for his attention to the welfare of this, his antient colony, we cannot refrain from renewing those professions of loyalty and affection we have so often, with great sincerity, made, or from assuring him that we regard his wisdom and virtue as the surest pledges of the happiness of his people."
"Ordered, That a Committee be appointed to draw up an address to be presented to his Majesty, upon the said resolution." And a Committee was appointed of Mr. Harrison, Mr. Carey, Mr. Edmund Pendleton, Mr. Richard Henry Lee, Mr. Treasurer, and Mr. Bland.
"Wednesday, April 1st, 1772: Mr. Harrison reported from the Committee appointed upon Friday, the twentieth day of last month, to draw up an address to be presented to his Majesty, that the Committee had drawn up an address accordingly, which they had directed him to report to the House; and he read the same in his place; which is as followeth," etc. The address is so nearly in the words of the resolution, that the reader need not be detained by its repetition. The House agreed, nemine contradicente, to the address, and the same Committee was appointed to present an address to the Governor, asking him to transmit the address to his Majesty, "and to support it in such manner as he shall think most likely to promote the desirable end proposed." This earnest appeal met the fate of all the previous: Mammon and the African Company were still paramount at Court, over humanity and right. But the Revolution was near at hand, bringing a different redress for the grievance.
On the 15th of May, 1776, Virginia declared her independence of Great Britain, and the Confederacy, following her example, issued its declaration on the 4th of July of the same year. The strict blockade observed by the British navy, of course arrested the foreign slave trade, as well as all other commerce. But in 1778, the State of Virginia, determined to provide in good time against the resumption of the traffick when commerce should be reopened, gave final expression to her will against it. At the General Assembly held October 5th, Patrick Henry being Governor of the Commonwealth, the following law was the first passed:
AN ACT FOR PREVENTING THE FARTHER IMPORTATION OF SLAVES.[35]
"I. For preventing the farther importation of slaves into this Commonwealth: Be it enacted by the General Assembly, That from and after the passing of this act, no slave or slaves shall hereafter be imported into this Commonwealth by sea or land, nor shall any slaves so imported be bought or sold by any person whatsoever.
"II. Every person hereafter importing slaves into this Commonwealth contrary to this act, shall forfeit and pay the sum of one thousand pounds for every slave so imported, and every person selling or buying any such slaves, shall in like manner forfeit and pay the sum of five hundred pounds for every slave so bought or sold, one moiety of which forfeitures shall be to the use of the Commonwealth, and the other moiety to him or them that will sue for the same, to be recovered by action of debt or information in any court of record.
"III. And be it further enacted, That every slave imported into this Commonwealth, contrary to the true intent and meaning of this act, shall, upon such importation, become free."
The remaining sections of the law only proceed to exempt from the penalty citizens of the other United States, coming to live as actual residents with their slaves in the Commonwealth, and citizens of Virginia bringing in slaves from other States of the Union by actual inheritance.
Thus Virginia has the honour of being the first Commonwealth on earth to declare against the African slave trade, and to make it a penal offence. Her action antedates by thirty years the much bepraised legislation of the British Parliament, and by ten years the earliest movement of Massachusetts on the subject; while it has the immense advantage, besides, of consistency; because she was never stained by any complicity in the trade, and she exercised her earliest untrammelled power to stay its evils effectually in her dominions. Thus, almost before the Clarksons and Wilberforces were born, had Virginia done that very work for which her slanderers now pretend so much to laud those philanthropists. All that these reformers needed to do was to bid the British Government go and imitate the example which Virginia was the first to set, among the kingdoms of the world. It is true that the first Congress of 1774, at Philadelphia, had adopted a resolution that the slave trade ought to cease; but this body had no powers, either federal or national; it was a mere committee; and its inspiration upon this subject, as upon most others, came from Virginia. In 1788, Massachusetts passed an act forbidding her citizens from importing, transporting, buying, or selling any of the inhabitants of Africa as slaves, on a penalty of fifty pounds for each person so misused, and of two hundred pounds for every vessel employed in this traffick. Vessels which had already sailed were exempted from all penalty for their present voyages.[36] It is manifest from the character of the penalties, that this law was not passed to be enforced; and the evidence soon to be adduced will show, beyond all doubt, that this is true. The act was one of those cheap tributes which Pharisaic avarice knows so well how to pay to appearances. Connecticut passed a very similar law the same year, prohibiting her citizens to engage in the slave trade, and voiding the policies of insurance on slave ships. The slave trade of New England continued in increasing activity for twenty years longer.
It may be said, that if the government of Virginia was opposed to the African slave trade, her people purchased more of its victims than those of any other colony; and the aphorism may be quoted against them, that the receiver is as guilty as the thief. This is rarely true in the case of individuals, and when applied to communities, it is notoriously false. All States contain a large number of irresponsible persons. The character of a free people as a whole should be estimated by that of its corporate acts, in which the common will is expressed. The individuals who purchased slaves of the traders were doubtless actuated by various motives. Many persuaded themselves that, as they were already enslaved, and without their agency, and as their refusal to purchase them would have no effect whatever to procure their restoration to their own country and to liberty, they might become their owners, without partaking in the wrong of which they were the victims. Many were prompted by genuine compassion, because they saw that to buy the miserable creatures was the only practicable way in their reach to rescue them from their pitiable condition; for tradition testifies that often when the captives were exposed in long ranks upon the shore, near their floating prisons, for the inspection of purchasers, they besought the planters and their wives to buy them, and testified an extravagant joy and gratitude at the event. All purchasers were, perhaps, influenced partly by the convenience and advantage of possessing their labour. Had every individual in Virginia been as intelligent and virtuous as the patriots who, in the Burgesses, denounced the inhuman traffick, the colony might perhaps have remained without a slave, notwithstanding the two centuries of temptation during which its ports were plied with cargoes seeking sale. But a commonwealth without a single weak, or selfish, or bad man, is a Utopia. The proper rulers were forbidden by the mother country to employ that prohibitory legislation which is, in all States, the necessary guardian of the publick virtue; and it is therefore that we place the guilt of the sale where that of the importation justly belongs. Doubtless many an honourable citizen, after sincerely sustaining the endeavour of his Burgess to arrest the whole trade, himself purchased Africans, because he saw that their general introduction into the country was inevitable, without legislative interference; and his self-denial would only have subjected him to the severe inconveniences of being without slaves in a community of slaveholders, whilst it did not arrest the evil.
The government of Virginia was unquestionably actuated, in prohibiting the slave trade, by a sincere sense of its intrinsic injustice and cruelty. Mr. Jefferson, a representative man, in his "Notes on Virginia," had given indignant expression to this sentiment. And the reprobation of that national wrong, with regret for the presence of the African on the soil, was the universal feeling of that generation which succeeded the Revolution; while they firmly asserted the rightfulness of that slavery which they had inherited. But human motives are always complex; and along with the moral disapprobation for the crime against Africa, the Burgesses felt other motives, which, although more personal, were right and proper. They were sober, wise and practical men, who felt that to protect the rights, purity, and prosperity of their own country and posterity, was more properly their task, than to plead the wrongs of a distant and alien people, great although those wrongs might be. They deprecated the slave trade, because it was peopling their soil so largely with an inferior and savage race, incapable of union, instead of with civilized Englishmen. This was precisely their apprehension of the enormous wrong done the colony by the mother country. They understood also the deep political motive which combined with the lust of gain to prompt the relentless policy of the Home Government. With it, the familiar argument was: "Let us stock the plantations plentifully with Africans, not only that they may be good customers for our manufactures, and producers for our commerce; but that they may remain dependent and submissive. An Englishman who emigrates, becomes the bold assertor of popular and colonial rights; but the negro is only fit for bondage." For the same reason, the colonies felt that the forcing of the Africans upon them was as much a political as a social wrong. But that righteous Providence, whose glory it is to make the crimes of the designing their own punishment, employed African slavery in the Southern colonies as a potent influence in forming the character of the Southern gentleman, without whose high spirit, independence, and chivalry, America would never have won her freedom from British rule.
This contrast between the policy and principles of Virginia and of the New England colonies will be concluded with two evidences. The one is presented in the history of the Declaration of Independence. Mr. Jefferson, the author, states that he had inserted in the enumeration of grievances against the King of Great Britain, a paragraph strongly reprobating his arbitrary support of the slave trade, against the remonstrances of some of the colonies. When the Congress discussed the paper, this paragraph was struck out, "in complaisance," he declares, "to South Carolina and Georgia, who had never attempted to restrain the importation of slaves, and who, on the contrary, still wished to continue it. Our Northern brethren also, I believe, felt a little tender under these censures; for though their people had very few slaves themselves, yet they had been pretty considerable carriers of them to others."[37] Thus New England assisted to expunge from that immortal paper a testimony against the slave trade, which Virginia endeavoured to place there.
The other evidence is presented by a case much more practical. In the Convention of 1787, which framed the Constitution of the United States, two questions concerning African slaves caused dissension. Upon the supreme right of the States over the whole subject of slavery within their own dominions, upon the recognition of slaves as property protected by the federal laws, wherever slavery existed, and upon the fugitive slave law, not a voice was raised in opposition. But the Convention presumed (what subsequent history did not confirm,) that the main expenses of the federal government would be met by direct taxation; and some principle was to be adopted, for determining how slaves should rank with freemen, in assessing capitation taxes, and apportioning representation. The other question of difficulty was the suppression of the African slave trade, which, upon the return of peace, had been actively revived by New England, with the connivance of Carolina and Georgia. The Southern States, who expected to have nearly the whole tax on slaves to pay, desired to rate them very low; some members proposed that five slaves should count as equal to only one white freeman; others, that three slaves should count for one. The New England colonies generally desired to make a negro count as a white man, both for representation and taxation! After much difference, the majority of the Convention agreed to a middle conclusion proposed by Mr. Madison, that five negroes should count for three persons.[38] But the other question was not so easily arranged. The Committee of eleven appointed to draw up a first draught of a constitution had proposed that in Art. vii., § 4, of their draught, Congress should be prohibited from laying any import duty on African slaves brought into the country. The effect of this, so far as the federal government was concerned, would be to legalize the slave trade forever, and protect it from all burdens.[39] Maryland (by her legislature, then sitting,) to her immortal honour, and Pennsylvania and Virginia, exhibited a determination to change this section, so as to arrest the trade through the action of the federal government, either by prohibition or tax. The New England States, South Carolina, and Georgia, opposed them, and advocated the original section, assigning various grounds. The difference threatened to make shipwreck of the whole work of the Convention, when Gouverneur Morris adroitly proposed to commit the subject, along with that of the proposed navigation law, in order that disagreeing parties might be induced, by private conference, to combine mutual concessions into a sort of bargain. The subjects were accordingly committed to a Committee of one from each State. This Committee reported, August 24th, "in favour of not allowing Congress to prohibit the importation of slaves before 1800, but giving them power to impose a duty at a rate not exceeding the average of other imports." South Carolina (through General Pinckney) moved to prolong the importation from 1800 to 1808, and Massachusetts (through Mr. Gorham) seconded the motion. It was then passed, as last proposed, New Hampshire, Massachusetts, Connecticut, (the only New England States then present,) Maryland, North Carolina, and South Carolina, voting in the affirmative, and New Jersey, Pennsylvania, Delaware, and Virginia in the negative.[40] The maritime States soon after gained their point, of authorizing Congress to pass, by a majority vote, a navigation law for their advantage.
Thus, by the assistance of New England, the iniquities of the African slave trade, and the influx of that alien and savage race into America, were prolonged from the institution of the federal government until 1808. Is it said, that New England had at this time no interest in slavery, did not value it, and was already engaged in removing it at home? This is true; and it is so much the worse for her historical position. It only shows that she desired to fix that institution which she had ascertained to be a curse to her, upon her neighbours, for the sake of keeping open twenty years longer an infamous but gainful employment, and of securing a legislative bounty to her shipping. In other words, her policy was simply mercenary. And these votes for prolonging the slave trade effectually rob her of credit for emancipation at home; proving beyond all peradventure, that the latter measure was wholly prompted by her sense of her own interests, and not of the rights of the negro. For if the latter motive had governed, must it not have made her the equal opponent of the increase of slavery in Carolina and Georgia?
But the agency of New England in that increase was still more active and direct. As though to "make hay while the sun shone," the people of that section renewed their activity on the African coast, with a diligence continually increasing up to 1808. Carey, in his work upon the slave trade, estimates the importations into the thirteen colonies between 1771 and 1790, (nineteen years,) at thirty-four thousand; but that between the institution of the federal government and 1808, he places at seventy thousand. His estimate here is unquestionably far too low; because forty thousand were introduced at the port of Charleston, South Carolina, alone, the last four years;[41] and within the years 1806 and 1807, there were six hundred arrivals of New England slavers at that place.[42] The latter fact shows that those States must have possessed nearly the whole traffick. And the former bears out Mr. De Bow, in enlarging the total of importations under the federal government to one hundred and twenty-five thousand, at least. For the average at one port was ten thousand per year. In 1860, there were ten-fold as many Africans in the United States as had been originally brought thither from Africa. But as many of these had been multiplying for four, or even five generations, this rate of increase is too large to assume for the importations of 1800, whose descendants had only come to the third generation. Assuming the half as nearly correct, which seems a moderate estimate, we find their increase five-fold. So that there were, in 1860, six hundred and twenty-five thousand more slaves in the United States than would have been found here, had not New England's cruelty and avarice assisted to prolong the slave trade nineteen years after Virginia and the federal government would otherwise have arrested it.
After the British, and even after the other governments of Europe, had abolished the trade in name, it continued with a vast volume. Whereas at the time of the abolition, in 1808, eighty-five thousand slaves were taken from Africa annually, nearly fifty thousand annually were still carried, as late as 1847, to Brazil and the Spanish Indies.[43] In this illicit trade, no Virginian (and, indeed, no Southern) ship or shipmaster has ever been in a single case implicated, although our State had meantime begun no inconsiderable career of maritime adventure. But adventurers from New England ports and New York were continually found sharing the lion's portion of the foul spoils. And to the latest reclamations of the British Government upon the Brazilian, for violations of the treaties and laws against the slave trade upon the extended shores of that empire, the answer of its noble Emperor has still been, that if Britain would find the real culprits, she must go to the ports of Boston and New York to seek them.[44]
But one more fact remains: When the late Confederate Government adopted a constitution, although it was composed exclusively of slaveholding States, it voluntarily did what the United States has never done: it placed an absolute prohibition of the foreign slave trade in its organic law.
It has been a favourite and persistent assertion of Abolitionists, that slavery in America was an exceptional institution, and contrary to the law of nature and nations. They represent it as owing its existence solely to the lex loci of the States where it was legalized by their own legislation; and hence they draw the conclusion, that the moment a slave passed out of one of these States into a free State, or into the territories of the United States, his bondage terminated of itself. Hence, also, they argue that slaveholders had no right to the protection of that species of property in the territories, which were the common possession of the citizens of all the States; and that the federal government could not properly permit the growth of, or recognize, new slave States. Their party cry was: "Freedom is national; slavery is local." It is plain that this proposition is the premise necessary to all the above assumptions. It will now be shown that this proposition is untrue. Slavery in the United States, instead of being the mere creature of lex loci, was founded on a basis as broad as that of the American Union, was in full accordance with the law of nature and nations as then recognized by the States and the federal government, and had universal recognition by the force of general law. The exclusion of slavery from any State was legally the exception, owing its validity purely to the lex loci, and to the recognized sovereignty of the States over their own local affairs. Hence, the rights of slaveholders stood valid, of course, in all the common territories of the United States, and everywhere, save where the sovereignty of a non-slaveholding State arrested them within its own borders. This representation is established by the following facts:
First. When the federal government was formed, all the family of European nations was slaveholding; and they all alike held the Africans as unquestioned and legitimate subjects of bondage. The slave trade was held by publick law as legitimate as the trade in corn. It was the subject of treaty stipulations between the several powers; and slave trading companies were formally chartered and protected by all the leading powers. Slaves were declared by the English judges to be merchandise.[45] They were universally held legal prize of war when taken on the high seas.[46] They were recognized subjects of reclamation in forming and executing treaties. Thus, not to go outside of our own history, we find General Washington, in 1783, by order of Congress, remonstrating with the British commander evacuating New York city, because certain officers of the retiring forces carried away with them the fugitive slaves of American citizens; and the latter was compelled to surrender the attempt, as an unauthorized spoliation of property.[47] In 1788, the Government of the United States claimed of Spain the return of fugitive slaves from the Spanish colony of Florida;[48] and our government promised, in return, the rendition of Spanish slaves found in the United States. It is well known that the treaty of the United States with Great Britain, negotiated by Mr. Jay, and ratified by President Washington, and the treaty of Ghent, in 1815, both secured indemnities for slaves of American citizens abducted during the two wars; thus treating them as property under the protection of national law in America, and of the law of nations. In face of this array of facts, we boldly ask, with what face it can be asserted that slavery was not recognized by international law? Whether it is not as consonant with the law of nature as of nations, will appear at another place.
Second. During the whole planting and growth of the British colonies in America, and at the time when they passed from that government into the federal Union, the Empire of Great Britain was slaveholding in all its parts. The obvious consequence is, that the government formed by the thirteen colonies in a part of the territory of that empire, inherited the legal condition of their mother, in this particular. In seceding from that empire, they brought away the slaveholding status; and this subsisted ipso facto, except where it was changed by the lex loci. All the original territory of the American Union was slave territory, as was that subsequently acquired from France. Hence slave owners of course possessed their rights in all this territory, unless they were expressly restrained by special legislation of the States, sovereign each one within its own borders. The consequence cannot be denied, if the premise be admitted. Let the reader consider the following evidences of it:
In 1772, only four years before the Declaration of Independence, Lord Mansfield, in the Court of King's Bench, decided the famous Somersett case, by which, it has usually been asserted, slavery was forever terminated in England, and the principle was settled that this relation was inconsistent with her free laws. Mr. Stewart, a citizen of Virginia, going to England on business, carried with him a negro slave, Somersett, whom he had bought in Jamaica. After a time he indicated a purpose to return home, carrying his slave with him; whereupon the negro absconded. His master had him seized, and placed on board a ship in the Thames, to be forcibly carried to Jamaica and sold. The negro then sued out an application for habeas corpus, which being argued at a previous term, was finally decided by Lord Mansfield, at the Trinity term, 1772. The true extent of that decision will hereafter be shown. Our purpose here is to cite the admissions made by the court, as to the existing state of English laws.[49] It is noticeable, that this tribunal exhibited a great reluctance to decide the case, declaring that it was attended with great, and almost inextricable difficulties, and that Lord Mansfield proposed to evade a decision by recommending a compromise between Mr. Stewart and the black. This not being done, the court stated that there were then fifteen thousand negro slaves in England, worth not less than seven hundred thousand pounds sterling. It also recognized the decisions of Sir Philip Yorke, and Lord Chief Justice Talbot, confirmed in 1749, by that of the chancellor, Lord Hardewicke, that if a slave, brought by his master to England, should be detained from him, an action of trover for his recovery would lie; and the decision of Lord Talbot, that a negro slave brought by his master to England from a colony, or baptized by the clergy, did not thereby gain his liberty; and the opinion of the latter that while the Statute of Tenures had abolished manorial villeinage, a white man might still become a villein in gross, by the laws of England.[50] The court declared farther, that the slave property of a debtor was undoubtedly liable to action in the English courts, to recover the sums due a creditor. But after all these admissions, which clearly amount to a recognition of the fact that England itself was then by law a slaveholding country, Lord Mansfield proceeds to settle the principle (the only one, as he carefully declares, to which his decision extends) that the power of the writ of habeas corpus, not being limited to free persons by express statute, should, as he thinks, in England be extended to slaves, when they invoke it, and should be held to override the rights of the master under the laws; because those rights were now regarded as odious and excessive by current publick opinion. Such, and no more, is the extent of this much be praised, and much misunderstood decision! It is plain to common sense, that if it is not an instance of the judicial abuse of making, instead of expounding, law, it only establishes the fact that the laws of slaveholding England were then in a ridiculously inconsistent state.
In fact, not only were there then fifteen thousand negro slaves in England, but they were publickly bought and sold in the markets of London. The prevalence of slavery is attested by another species of historical evidence, very different from that of learned judges, but at least as authentick. The pictures by which Hogarth has fixed the follies and peculiarities of fashionable life on his immortal canvass, frequently contain the African valet; showing that the possession of this species of servants was demanded by high life. From the Normans, those noted slaveholders, to 1775, no statute had been passed upon the subject of personal slavery.[51] There then existed, in the northern part of the kingdom of Great Britain, from thirty thousand to forty thousand persons, of whom the Parliament said, "Many colliers, coal-heavers, and salters, are in a state of slavery, or bondage, bound to the collieries or salt-works where they work, for life, transferable with the collieries and salt-works, when their original masters have no use for them."[52] Again in 1799, they declare that "many colliers and coal-heavers still continue in a state of bondage."
Thus it appears that England was itself slave territory, at the time the thirteen colonies, declaring their independence, brought away her laws and institutions. But our argument of this fact is ex abundantia; it may be waived, and still our conclusion holds, because, by existing laws, all the plantations and colonies of England in America were then, yet more indisputably, slave territory. No stronger proof of this proposition can be imagined, than the manner in which slavery was planted in these communities. Not only were all the thirteen colonies, and all the West India plantations, slaveholding; but it required no statute, either of Parliament or of colonial legislature, to introduce African slavery, or to establish the right of the owner, because it was already established by imperial law and usage. The first negroes were bought in Virginia in 1620; the first act touching their bondage was passed by the Burgesses in 1659; and this does not enact their slavery, but recognizes it as existing. It was not until 1670,[53] that any law was passed which expressly enacted their slavery. But for fifty years they had been unquestioned slaves, had paid impost duty as such, had been bought and sold, had been bequeathed, had been subject of suits. By what law? Obviously by the general law of the British Empire, and of nations. The manner of the introduction of slavery into Massachusetts was the same. "The involuntary servitude of Indians and negroes in the several colonies originated under a law not promulgated by legislation, and rested upon prevalent views of universal jurisprudence, or the law of nations, supported by the express or implied authority of the Home Government."[54] But the "canny" Puritans, more careful than the Virginians to fortify their slave property, enacted slavery of both classes, in their earliest codes of laws, 1641 and 1660.[55]
That African slavery was the universal law of the British colonial empire, is equally plain from the facts already given concerning the legalizing of the slave trade. The treaty of Utrecht secured to Britain a monopoly of that traffick. The Parliament chartered the African Company, with the right to trade in slaves to all the colonies. The Parliament then by statute threw the trade open to all British subjects. The Parliament, by express law, made the property in slaves held in the colonies subject of action in English courts. The Solicitor-General, with Chancellor after Chancellor, decided that residence in England did not emancipate the slave upon his return to his colonial home. The General Court of Massachusetts enacted the same rule, as did the Burgesses of Virginia, again and again; and were never disallowed therein by the king. Even so late as 1827, fifty-five years after the Somersett case, Lord Stowell decided, in the case of the slave Grace, from Antigua, that on her return to the colony, her condition as a slave for life was fully revived.[56] And in the correctness of this decision, we find Mr. Justice Story concurring.[57]
The argument then is, that at the American Revolution all the territory claimed by the thirteen colonies was, by the law of the Empire, and of nations, slaveholding territory. The colonies, in assuming their independence, brought away the rights and institutions which they had inherited as colonial parts of that empire; and whatever prescriptive right was not expressly changed by law, was universally held to survive, as of course. Hence all the territory of the American Union was slave territory; and the only mode by which any part became non-slaveholding, was by the exercise of State sovereignty enacting a lex loci, which was only operative within the bounds of the State itself.
Third. The chief territory which the United States acquired between the Revolution and the Mexican war, was Louisiana. This vast region was gained by treaty from France in 1803. It was then a single province and government of the French Republick, and was, through all its extent, a slaveholding country. In the third article of the treaty for its purchase, between the United States and the First Consul, it was stipulated that until the ceded territory should be incorporated, as States, in the Union, all its citizens should be "in the mean time maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess." The settled doctrine of the courts of Louisiana has always been, that this guarantee covered all the citizens emigrating into any part of the territory before its erection into a State, as fully as those living in Louisiana in 1803.[58] Thus, the rights of slave owners in the whole of the Louisiana purchase were guaranteed to them by treaty, until such time as the part they inhabited became a sovereign State, and thus assumed plenary power over the subject. But, by Article 6th, § 2d, of the Constitution of the United States, all treaties made by the authority of the United States are declared to be the supreme law of the land. Thus the rights of the master in all this region were placed above the power of the legislature itself.
Fourth. The federal constitution recognized and protected property in slaves, in every way which was competent to a federative compact of this kind. The slaveholding States had representation for three-fifths of their slaves. The slaves were made subjects of direct taxation, as property. The constitution provided expressly for a fugitive slave law, which was soon passed by the Congress, and continued to be the law of the land until the termination of the government. By the constitution, property in slaves was created like any other property; and no ground can be found for the assertion that its rights were more restricted than rights in cattle or lands. But the fundamental idea of that instrument was the impartial equality of all the citizens before the law. Whatever authority Congress had over the common territories, was as trustee for all the citizens of the United States equally. Hence it seems obvious that this body was bound to recognize in all the citizens equal rights, in going into those territories with any species of property which they might hold by the laws of any State, or of Congress, and to protect them in those rights while the country was in a territorial condition.
Finally, these principles have been expressly decided by the highest constitutional authority in the land, as well as by the voice of the most enlightened founders of the government. When the mischievous contest concerning the admission of Missouri was rising in 1819, Mr. Madison declared, concerning the article of the constitution which conferred on Congress its powers over the territories, (Art. 4, § 3,) that "it cannot be well extended beyond a power over the territories as property, and the power to make provisions really needful or necessary for the government of settlers, until ripe for admission into the Union."[59] The Supreme Court of the United States, in the well-known case of Dred Scott, decided that Africans were not citizens of the United States in the meaning of the constitution;[60] that property in African slaves was on the same footing under that instrument with other legal property;[61] that the residence of a slave in a territory of the United States did not emancipate him, nor did his residence in a non-slaveholding State for a time, prevent the recurrence of his state of bondage, on his return to the State in which he had been a slave;[62] and that Congress had no power to use its authority to exclude slavery from any part of the territories.[63]
Thus the main proposition with which we set out is abundantly sustained by the history and legislation of the country. Three evasions from this conclusion have been attempted, of which the first is from the language of the Declaration of Independence, in which these famous words occur: "We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them are life, liberty, and the pursuit of happiness," etc. The inference is, that the Declaration intended to imply that the slavery of the Africans was a natural wrong incapable of being legalized; and it is claimed that this document is of the organic force of constitutional law to the confederation which then asserted its independence. Both these suppositions are erroneous. As to the latter, it may be justly argued, that the Declaration of Independence was simply what it calls itself: a declaration, a justificatory statement addressed to the world without, and not an act of organic legislation ascertaining the rights of the citizens within. The evidence is, that it enacts nothing save the one point of the independence of the colonies. Neither the Confederation nor the new Union formed in 1787 ever based any legislation upon it, save as their acts involved the fact of independence. The constitution made no reference to it; did not ground itself upon it, and did not reënact it. Hence, let its meaning be what it may, it legislates nothing for or against slavery.
But it is too clear to be disputed, that the enslaved African race were not intended to be included, and formed no part of the people who asserted their rights in this Declaration. The evidence is, that if the men who framed it had intended to refer to African slavery, they would have completely stultified themselves. For the majority of them, and of the States which they represented, continued to hold Africans in bondage just as before. A few years after, the same men met in federal convention, and framed the late constitution of the United States; by which property in slaves was protected and perpetuated as before, and traffick in Africans was prolonged until 1808, and made subject of taxation like other merchandise. The States which were emancipating their own Africans, equally with those which retained them in bondage, retained their laws prohibiting the marriage of Africans with whites.[64] Connecticut, until 1796, prohibited free negroes from travelling beyond their township without a pass. New Hampshire, and Congress itself, precluded negroes from serving in the militia.[65] The Declaration of Independence was therefore intended by its framers to assert the liberties of civilized Americans and Englishmen, and not of African barbarians held in bondage. Whether their consistency therein can be defended, is a separate question, to which attention will be given in the proper place. But all publicists are agreed, that the meaning of a document is the document; and that this meaning is to be ascertained by the intentions of those who frame and adopt it.
The second objection to our conclusion is grounded upon the Ordinance of the Confederation, in 1787, by which slavery was prohibited in the North-western Territory ceded to the United States by Virginia. This magnificent domain, including the present States of Ohio, Indiana and Illinois, was conquered from the public enemy in the years 1778-9, by the Commonwealth of Virginia. She sent out her own troops, at her own charges, without either authority or assistance from the Confederation, then also engaged in a war with Great Britain, under her own commission to her heroick son, General George Rogers Clarke. Upon the conquest of the country, she disposed by her own State action of the prisoners of war captured, and annexed the territory to the State of Virginia, which then also included Kentucky. The other States, and the Confederation, uniformly recognized this region as legitimately a part of Virginia. But during and after the war, the States which owned no unsettled territory grew exceedingly jealous of those which possessed such regions, and especially of Virginia. They feared her ulterior grandeur and power. But their expressed plea was, that she, and other States possessed of vacant lands, could pay their share of the common war debt, without taxation, by the sale of these lands, which, as they claimed, were the fruits of the common exertions of the States, while the others would be subjected to an onerous taxation. The North-west Territory had, in fact, been won by Virginia, with her own bow and spear; but at the request of the Congress of the Confederation, she magnanimously laid the splendid prize upon the altar of the common cause, ceding it in 1784 to Congress, for the common behoof of the United States. The Congress of the Confederation passed a long enactment, known as the Ordinance of 1787, providing, in many articles, for its settlement, for its government while a territory, and for the sale of lands. Among these was a clause prohibiting slavery in it. But meantime, the Confederation was superseded by the general government organized under the new constitution of 1787. The first Congress during the administration of General Washington, acting under the article of the constitution already cited for taking and managing the "territory and other property" of the Confederation, passed an act, (August 7th, 1789,) for putting in effect the Ordinance of the Congress of the Confederation, now extinct.
Such is the history of the case. The inference of the objector is, that because the Congress of 1789, acting under the late constitution, claimed power to execute the ordinance of 1787, (passed by the previous and different general government,) with its anti-slavery clause included, therefore that constitution gave it power to exclude slavery from any other territory. But the inference is worthless. For, first, the Congress of the old Confederation had not a particle of constitutional power to adopt such an anti-slavery clause. So declared Mr. Madison emphatically:[66] and so has decided the Supreme Court of the United States.[67] Both these high authorities declare, that if the clause had any validity, it derived it only from the assent of Virginia, who had full sovereignty over the territory, and who accepted and ratified the exclusion by act of her General Assembly, as well as by the mouths of her representatives in the Confederation. And the Congress of 1789, in accepting the conditions imposed by the Ordinance of 1787 on the territory, as valid and abiding, undertook to change nothing, because it regarded that validity as the result of treaty stipulations between Virginia and the other twelve States represented by the old Congress. It conceived itself as having inherited from a previous and different government powers over this particular territory, which it could by no means have originated by its own constitutional authority.[68] Second: The government framed under the new constitution was one of limited powers; and Congress was expressly inhibited, by the instrument which created it, from exercising any authority not granted. But such a power as that to exclude citizens of any of the United States from the common territory, because they proposed to carry there property legalized both by the Constitution of the United States and of their own State, was not granted to Congress. That a government whose very foundation was the equality of the States, should thus attempt to disfranchise some States of a part of their rights, was a solecism too monstrous for these able and enlightened men. Third: When similar cessions of territory were afterwards made by North Carolina and Georgia, these States refused to Congress the privilege of appending to their laws touching these lands, the exclusion of slavery; and Congress obeyed, so framing their enactments as to admit and protect slave-owners. This proves that the exclusion derived its force from the consent of the Sovereign State, and not from the power of Congress.
The third ground of objection which has been advanced against our main proposition, is the doctrine said to have been decided by the Supreme Court of the United States, (as in the case of Prigg against the State of Pennsylvania,) that according to recognized international laws, a nation which does not hold slaves itself is not bound to recognize property in slaves in neighbouring nations, when those slaves come into its borders; and that if a rendition is claimed, it must be asked of comity, or of special stipulation, and not as of international right. The answer is clear and facile. The States of the American Union were, initially, as independent nations to each other; and then they were all slaveholding. Each one of them recognized in its own citizens the right of property in slaves; and therefore, if the above doctrine be granted, they could not then, by international law, refuse to recognize it in nations living at amity with them. Again: When they passed out of this condition of absolute independence, into that of federal union, their relations, so far as they ceased to be international, were regulated exclusively by the constitution; and by this constitution the property in slaves was expressly recognized, the rendition of fugitive slaves was expressly required of all the States, whether themselves holding slaves or not; and all the common territory of the Union was originally slave territory until it became free territory by sovereign State action. Plainly, in such a case as this, the international law of Europe has no application, against historical facts and actual constitutional enactments. The sophism of this plea in the mouths of anti-slavery men, the uniform assertors of consolidation doctrines, would make the States, in the same breath, independent nations, in order that the international law of a different hemisphere may be applied against them, and also subject provinces of an anti-slavery nation, in order that they may be stripped of that equality of rights, belonging to sovereign constituent parties in a confederation.
The motive for introducing the historical facts contained in this chapter is the following: That the credit of Virginia as a slaveholding State is relatively illustrated by the conduct of her partners in the confederation touching the same matter. Virginia never passed a general act of emancipation; on the contrary, she forbade masters to free their slaves within her borders, unless they also provided for their removal to new homes. But what was it which the Northern States actually did? The general answer to this question cannot be better given than in the words of the Hon. A. H. H. Stuart of Virginia, in his Report to the General Assembly, as chairman of its joint committee on the Harper's Ferry outrages. He says:
"At the date of the declaration of our national independence, slavery existed in every colony of the Confederation....
"Shortly after the Declaration of Independence, the Northern States adopted prospective measures to relieve themselves of the African population. But it is a great mistake to suppose that their policy in this particular was prompted by any spirit of philanthropy or tender regard for the welfare of the negro race. On the contrary, it was dictated by an enlightened self-interest, yielding obedience to overruling laws of social economy. Experience had shown that the African race were not adapted to high northern latitudes, and that slave labour could not compete successfully with free white labour in those pursuits to which the industry of the North was directed. This discovery having been made, the people of the North, at an early day, began to dispose of their slaves by sale to citizens of the Southern States, whose soil, climate, and productions were better adapted to their habits and capacities; and the legislation of the Northern States, following the course of publick opinion, was directed, not to emancipation, but to the removal of the slave population beyond their limits. To effect this object, they adopted a system of laws which provided, prospectively, that all slaves born of female slaves, within their jurisdiction, after certain specified dates, should be held free when they attained a given age. No law can be found on the statute-book of any Northern State, which conferred the boon of freedom on a single slave in being. All who were slaves remained slaves. Freedom was secured only to the children of slaves, born after the days designated in the laws; and it was secured to them only in the contingency that the owner of the female slave should retain her within the jurisdiction of the State until after the child was born. To secure freedom to the afterborn child, therefore, it was necessary that the consent of the master, indicated by his permitting the mother to remain in the State, should be superadded to the provisions of the law. Without such consent, the law would have been inoperative, because the mother, before the birth of the child, might, at the will of the master, be removed beyond the jurisdiction of the law. There was no legal prohibition of such removal, for such a prohibition would have been at war with the policy of the law, which was obviously removal, and not emancipation. The effect of this legislation was, as might have readily been foreseen, to induce the owners of female slaves to sell them to the planters of the South, before the time arrived when the forfeiture of the offspring would accrue. By these laws, a wholesale slave trade was inaugurated, under which a large proportion of the slaves of the Northern States were sold to persons residing south of Pennsylvania; and it is an unquestionable fact that a large number of the slaves of the Southern States are the descendants of those sold by Northern men to citizens of the South, with covenants of general warranty of title to them and to their increase."
Thus wrote Mr. Stuart, after thorough research. A brief recital of the enactments of the Northern slaveholding States will show that his general representation is correct. We begin with Massachusetts. No law against slavery, (which had been long legally established in the colony,) was ever passed by her legislature;[69] and in that sense, the right to hold slaves may be said to have formally existed, until it was extinguished by her adoption of the "constitutional amendment," in 1866! Practically, slavery was gradually removed after 1780, by the current of the legal decisions against it, grounded upon a clause in the new bill of rights, adopted by the State in that year. This clause asserted, nearly in the words of the Declaration of Independence, the native equality and liberty of men. In 1781 a slave of N. Jennison, of Worcester County, recovered damages of his master for beating.[70] This decision, if sustained, of course implied the cessation of slavery. Although the Legislature of the State was moved in 1783, by this Jennison and others, to declare that slavery did not exist legally, so that the doubt might be ended, that body refused to act; nor did it ever after abolish slavery.[71] But judicial decisions after the example of the Jennison case were made from time to time, until, in 1796, the Supreme Court of Massachusetts, in the case of Littleton v. Tuttle,[72] gave its countenance to the doctrine, that the bill of rights virtually made slavery illegal. That all this was a glaring instance of the judicial abuse, ampliandi jurisdictionem, is manifest from many facts: That the Massachusetts statesmen who adopted the same proposition in the Declaration of Independence, never dreamed of its possessing any force to abolish slavery in the United States which set it forth: That the convention which drew up the bill of rights for Massachusetts did not think of such an application; That this document declared "no part of any citizen's property could be taken from him without his own consent:" That slaves continued to be bought and sold, and advertised as before; And that the abolitionists, still in the minority, continued after 1780 to remonstrate against slavery as a sin still legalized. But such a mode of determining the question was well adapted to the meddlesome and crooked temper of that people. By this judicial trick the envious non-slaveholders were enabled to attack their richer slaveholding neighbours, and render them so uneasy as to insure their disposing of their slaves; while still there was neither law nor publick opinion prevalent enough to procure a legal act of emancipation.
New Hampshire and Vermont embodied the principle of prospective emancipation in their new constitutions. In 1790 there were 158 slaves in New Hampshire. In 1840 there was still one! Rhode Island passed a law in 1784, that no person born after that year should continue a slave. Connecticut embodied in the revision of her laws, in 1784, a law providing that all children born of slave parents after March 1st of that year, should be free at twenty-five years of age. In 1797 the term of servitude was reduced to twenty-one years for all born after August 1st of that year. Slavery was not actually abolished by law until June 12th, 1848; when the census shows there were no fewer than seventeen slaves in the State; and how old and worthless they must have been, appears from the fact that the youngest of them must have been born before March 1st, 1784.[73]
In New York, the laws for slaves were more severe than in the Southern States, and the African slave trade was zealously encouraged during the whole colonial period. The slave could not testify, even to exculpate a slave. Three justices, with a sort of jury of five freeholders, could try capitally, and inflict any sentence, inclusive of burning alive.[74] It was not until 1799 that the State commenced a system of laws for the gradual abolition of slavery. Every slave child born after July 4th of that year was to be free, the males after twenty-eight, and the females after twenty-five years. In 1810, the benefit of freedom was also extended to those born before July 4th, 1799, to take effect July 4th, 1827, the date at which the earliest born of those freed by previous law reached their majority of twenty-eight years.[75] Still the census of 1830 found 75 slaves! The Revised Statutes of New York, after 1817, provided a penalty for those carrying them out of the State for sale; showing that the tendency to do so existed.
In New Jersey, the first act looking towards prospective emancipation was adopted in 1784. By it all born after 1804 were to be free in 1820. It was not until 1820 that action was taken to give effect to this promise; and then the nature of the law was such as to postpone the hopes of the slaves. The first section of the law of February 24th, 1820, says: "Every child born of a slave within this State since the 4th day of July 1804, or which shall hereafter be born as aforesaid, shall be free; but shall remain the servant of the owner of his or her mother, and the executors, administrators and assigns of such owners, in the same manner as if such child had been bound to service by the Trustees or Overseers of the poor, and shall continue in such service, if a male until the age of twenty-five years, and if a female until the age of twenty-one years." It was within the scope of possibility that slave women whom this law left slaves for life might bear children as late as the year 1848: whence bondage would not have been terminated wholly by it until 1873. New Jersey had 236 slaves for life in 1850. It is stated by one of the best informed of her old citizens, that the prospective effect of these enactments was to cause a considerable exodus to Southern markets; and that when a boy, he heard much talk of the sale of negroes, and the sending of them to "the Natchez," and was cognizant of the continual apprehension of the negroes concerning the danger.
In Pennsylvania, emancipation was also prospective and gradual. Her first act was passed March 1st, 1780. The rate at which it operated may be seen from these figures: In 1776 she had about 10,000 slaves; in 1790, (ten years after her first act,) she had 3,737; in 1800, 1,706; in 1810, 795; in 1820, 211; in 1830, 403; and in 1840, 64 slaves.
Thus, the emancipation legislation of the Northern States has been reviewed, and the assertions of the Hon. Mr. Stuart substantially sustained. That Northern emancipation was prompted by no consideration for the supposed rights of Africans, but by regard to their own interests, is evinced by many facts. Of these, perhaps the most general and striking is the persistent neglect of the welfare of their emancipated slaves; the refusal to give them equal civic rights, until they found a motive for doing so in malice against the South; and the shocking decadence, vice and misery to which a nominal liberty, according to the testimony of Northern writers, has consigned their wretched free blacks. Another proof is found in the current language of the men of the generation which effected the change. That language, as is well remembered by elderly persons still living, was usually such as this: that now that the population had filled up the country, the question of emancipation was simply one of choice between their own children and the negro—whether their sons should emigrate, or the negro be gotten rid of, as there was no longer room for both. Another conclusive proof is in the fact that while these States were getting rid of their own negroes, they were deliberately voting (Massachusetts, New Hampshire, Connecticut, in the Convention of 1787,) to prolong the introduction of slaves into the Carolinas nineteen years more. Still another evidence is found in the repugnance of those States to the influx of free blacks, and the stringent laws of some of them to prevent it. Thus, Massachusetts, in March, 1788, (eight years after the pretended extinction of human bondage,) passed a law ordering every black, mulatto or Indian who came into the State and remained two months to be publickly whipped; and this punishment was to be repeated "if he or she shall not depart toties quoties."[76] This law remained in force until 1834! as is shown by its appearance in the Revised Laws of Massachusetts, 1823. It is also to be noted that the scheme of gradual emancipation, upon which the whole North acted, obviously recognizes the property of the master in his slave as legitimate in itself. It only touches it, (because private rights are here required to give place to publick interest,) in the case of those born after a certain day. The slavery of the others is left as perpetual and legal as ever. And even as to the later born, the right of the master receives a certain recognition, in that he is allowed twenty-five years' service as a partial compensation for the surrender of the remainder.
But how different is the summary abolition forced upon Virginia and the South! Here, the general legislation of the State was steadily multiplying, elevating and blessing the black race, which in the North was so rapidly dying out under its pretended liberty. And private beneficence of Virginians, without any legal compulsion, had actually given the boon of freedom to at least one hundred thousand blacks; which is more than all the citizens of the New England States, New York, New Jersey, and Pennsylvania together, ever did, under the force of all their laws.[77] In this wise and beneficent career Virginia has been violently interrupted, against her recognized and guaranteed rights, by instant and violent abolition. The motive of the North, as a whole, has manifestly been, not love for the negro, but hatred of the white man, and lust of domination. This abolition is purely the result of a supposed military necessity, because the North believed that otherwise she could not overthrow the South in an unjust war. But for this single fact, the Africans would still be in bondage, so far as the Yankee was concerned. The proof is, that the Chicago platform of the Black Republican party in 1860, expressly repudiated the purpose ever to meddle with slavery in the States. Mr. Lincoln, the chosen man of the North, solemnly asserted the same thing in his letter to A. H. Stephens of Georgia, in his publick inaugural, and in his messages. The Congress, after the beginning of the war, solemnly declared to the world by a joint resolution, that the purpose of the war was only to restore the Union, and not to restrict or change State institutions. Mr. Lincoln constantly declared to the Abolitionists, that if the perpetuation of slavery tended to restore the Union, it should be perpetuated. His standing invitation to the States in arms against him was: "If you wish to keep your slaves, come back into the Union." Can the North be believed in her own declarations? Then, the charge made is true—that abolition in the South was prompted by ambition and hatred, not by philanthropy.