Nei

tion upon the Poles themselves. ther could any agreement, express or implied, between the government and the purchasers of slaves, affect the rights of the slaves. Before we can derive from the sanction given by government to the African slave trade, a valid argument for the continuance of slavery in the persons or posterity of the slaves thus imported, we must prove that the governments which sanctioned the trade, possessed a right to dispose of the freedom, present and prospective, of the African natives whom war or pillage had placed in their hands. Governments have no more authority than individuals to dispose of rights which do not belong to them. The maxim of the common and civil law is clearly applicable to this case. Nemo plus juris in alium transferre potest quam ipse habet. [No man can transfer to another any rights but those which he possesses himself.] If the slave trader is a pirate (an enemy to the human race) in the nineteenth century, the same traffic could not be justly deemed a lawful and honourable commerce at any antecedent period. The nature of the traffic is not changed, however its legal character may be affected, by the modern declarations respecting it.

But even supposing, for argument's sake, that the British government, (for under that government the principal slave importations took place,) possessed ample authority to declare the ill-fated natives of Africa merchantable property, and that all those who were imported and sold in the western world had justly forfeited their personal freedom; a question is still to be settled, how this forfeiture can be extended to a second, and every subsequent generation.

The Africans, supposing their slavery entirely just, do not cease on that account to be human beings; their children are human beings, guiltless of their parents' crimes, and therefore entitled to the rights of humanity, until those rights have been forfeited; and it is difficult to perceive how that can be done unless by themselves. Entrench the question of property in the forms of law as we will, still it is not to be forgotten, that personal freedom is a primary and original right, and that the right of property is secondary and derivative. Personal liberty is the gift of the Creator; the rights of inheritance are the creatures of society. It is needless to inquire how or where the right of ownership is vested, until we have ascertained that it has passed away from the man himself, the natural and original occupant.

If the freedom of the children, born in our country, of female slaves, has been forfeited at all, it must have been done in one of two ways. By the mysterious operation of corruption of blood; or by coming into the world destitute of natural guardians; the servile condition of the mothers depriving them of the power to protect and sustain the progeny.

The law of corruption of blood, the barbarous growth of Norman rapacity, was introduced into England at the conquest, for it was unknown to our Saxon ancestors.† A person convicted of treason, or other felony, was, after judgment had been pronounced upon him, considered dead in law. original compact with the government was supposed to be dissolved by the crime, and the estate of the convict

The

*Blackstone's Com. vol. ii. p. 255. + Ibid. vol. iv. p. 413.

either forfeited to the king, or escheated to the lord of the fee. The consequence was, that the blood was rendered corrupt, or incapable of receiving or transmitting any inheritance. The children of a man who was attainted, could not inherit the estate of their ancestor. This law has been justly considered as one of great hardship, and numerous acts of parliament, within the last three hundred years, have very much limited its operation. Yet we must observe, that even corruption of blood extends only to a capacity of inheriting property, and does not in the smallest degree encroach upon personal rights. The descendants of the attainted person may acquire, by their own industry, whatever another may acquire. The family, in regard to inheritance, must begin anew, but no barrier to the future acquisition of wealth is caused by the paternal attainder.

Supposing then the imported slaves to be all attainted criminals, or to have been placed, by some incomprehensible || process, upon the same level with attainted criminals, whose blood was corrupted, still, even by the barbarous policy of the Anglo-Norman government, that corruption could not impair the personal rights of their descendants.*

* Lord Chancellor Yorke, in an elaborate defence of the English law of forfeiture, observes, These benefits [wealth and honours derived by inheritance from the ancestor] may be considered as the gifts of civil government; but life and liberty are the gifts of nature, and should never be taken away because of the parent's offence; nor should a subject be made incapable of employments, without some crime committed by himself. Such severities are unwise as well as inequitable. Page 14.

But could corruption of blood affect the freedom of the posterity of the person attainted, in the mother country, it could hardly be admitted to do it here. Treason against the government is generally considered as one of the highest crimes, demanding the most exemplary punishment;† and yet, in the United States, no attainder, even of treason itself, is allowed to work corruption of blood, or forfeiture, except during the life of the person attainted.‡ Bills of attainder and corruption of blood, are denounced in the Federalist, as totally inconsistent with civilised legislation.

Could we admit that the freedom of the children was justly forfeited by the crimes or misfortunes of the parents, still an important question remains. To whom are they forfeited? It may be supposed a matter of small importance, if the liberty is lost, into whose hands the forfeited right may fall. It will, however, appear, upon examination, no trivial affair. In England, confiscated property vests in the crown, not merely because the king is supposed to be the fountain of justice and honours, but because he is also deemed the dispenser of mercy, the softener of the rigid features of justice. Hence a power remains, by which the forfeited possessions may be restored to the original occupant, or to his family. In the United States, the power of remitting fines and forfeitures is generally entrusted to the executive, with a view, undoubtedly, that

+ Treason, says Lord Hale, being the greatest crime against faith and duty, is deservedly branded with the highest ignominy, and subjected to the highest penalties which the law can inflict.

Constitution U. States, Art. 3. Sect. 3.

this power should be exercised in cases where the sentence of law is likely to operate with improper or needless severity. If the children of slaves could be viewed either as forfeited property, or as persons whose liberty is forfeited, why not apply to them the usual maxims of forfeiture, and vest in the executive the power of remission? It would have been a happy thing for the coloured race, and no less so for the white population, if the descendants of slaves born in our country had been considered in no more degraded light, than as persons whose liberty was forfeited and vested in the state. Unjust in regard to these people as such a mode of disposing of their inherent rights would evidently be, still essential advantages would necessarily accrue from it. Their condition would be changed from a personal to a political thraldom. The government, from the necessity of the case, would grant them numerous rights, of which they are now deprived. They would, probably, before this time, have been nearly transformed into copyhold tenants, and have possessed most of the privileges which are essential to happiness and ease.

Children may be supposed to lose their natural right to freedom from the slavery of their mothers, and the consequent incapacity of the latter to provide for them. This is the misfortune, not the fault, of the children. Adventitious rights may be lost by fortuitous events; natural rights can be forfeited only by crimes. But we must observe, that if the mothers have not justly forfeited their freedom, the incapacity to provide for their offspring, resulting from their detention in servitude, is chargeable upon those by whom they are unjustly detained, and cannot

possibly affect the rights of the children. If the mothers are prevented from performing their natural duty to their children, those who cause the disability are bound themselves to perform it. It is further observable, that even this plea does not obtain, unless the fathers are also slaves; for children, whose mothers are slaves, may be, and sometimes are, maintained at the expense of their fathers.

Waiving, however, all considerations of injustice to the parents, it is obvious that the rights which can be acquired, in the persons of the children, in consequence of the inability of the parents to provide for them, can be, at most, nothing more than a parental authority. The supposition of a right to perpetual and hereditary service, derived from such a source, if applied to any other class of children, would be deemed unworthy of sober discussion. Who would listen to the inquiry, whether destitute orphans could be justly seized and consigned to hereditary slavery? or whether infants, who were abandoned by their unknown and unnatural parents, were the slaves of those who happened to find and were willing to support them?

When children are abandoned, either willingly or from inability, by their natural protectors, those who assume the responsibilities, and perform the duties of parents, may be reasonably allowed the rights which necessarily result from the natural or assumed relation. What then are those rights?

"The rights of parents result from their duties. As they are bound to maintain and educate their children, the law has given them a right to such authority; and in the support of that authority, a right to the exercise of such discipline, as may be requisite for

66

the discharge of their sacred trust. This is the true foundation of parental power.' This relation confers no property in their persons, or natural dominion over them."+ The atrocious extent of parental authority allowed by the laws, or rather the maxims, of the Persians, Egyptians, Greeks, Gauls and Romans, has been long since narrowed down by the more refined manners and cultivated morals of modern times. And it is worthy of remark, that a probable reason why parental authority continued so long unrestrained, may be found in the universal prevalence of parental affection. The Roman laws were long destitute of any provision to punish children for murdering their parents, not because the crime was designed to be tolerated, but because it was supposed so unnatural a crime would never be committed. If the sorgé, in the second degree, could be relied upon for the prevention of murder, it is not surprising that its operation in the first should be deemed an adequate protection; and it could hardly occur to a legislator to provide against abuses which were so completely guarded by a principle implanted even in brutes. This principle, which supplies so powerful a restraint upon the abuses of parental authority, cannot be depended upon in the case before us. The substituted guardianship, which the slavery of the parents may be supposed to place in the hands of the master, would evidently demand a limitation rather than enlargement of parental power. But the authority of parents is now admitted to cease, when the child attains

* Commentaries on American Law, by Chancellor Kent, vol. ii. p. 169.

+ Paley's Moral and Political Philosophy, p. 245.

VOL. I.-42

the age of maturity; an age which has been variously fixed, but seems to be finally limited to twenty-one years. The right of the substituted guardian must therefore cease at the same, if not an earlier period.*

From this review of the subject, it appears that the rights of ownership in the persons of slaves, though confidently asserted, are totally inconsistent with the acknowledged maxims and principles of justice and law. Indeed, the whole system of negro slavery is the growth of barbarism, founded on violence and wrong; and capable of defence only upon maxims which have been derived from itself, or from some other system, equally at variance with the common sense of mankind.

Every system which has been interwoven with the legislation of the country, and the habits of the people, ought unquestionably to be approached with care. Rash attempts to correct an acknowledged evil, may sometimes irritate, instead of allaying, the disease. Yet still it is important that the distinction between right and wrong should be preserved; and that while we are pleasing ourselves with the excellence of our government, and the justice of our laws, we should remember the blots on our national escutcheon; and that these are more conspicuous and offensive from the

*The reason for settling the age of maturity at twenty-one years, I understand to be this. A boy is considered an expense to his parents during the first seven years; to be able, during the next seven, to compensate by his labour the charge of his support; and during the third, to refund the disbursements of the first. A girl arriving sooner at maturity, six years of the early period of life in a female are assumed as corresponding to seven in the other sex.

brilliancy that surrounds them. Nor is this the worst: the principles which we have so loudly proclaimed in the face of the world, must, if we disregard them in practice, eventually rise up in judgment against us. This important truth is not limited to the awful concerns of the world to come, but is applicable in a political and national sense. The negro is not deaf to our plaudits of liberty; and however we may endeavour to drown the echo, it must eventually return with astounding force. The spirit of freedom, like the eagle that has flown, has risen too high to be again confined to the cage of despotism. Evils, moral and political, however familiarized by habit, will produce their legitimate effect. The eternal laws of justice cannot be infringed with impunity. Justice cannot slumber for ever. O my country, the nursery of every virtue, the asylum of the oppressed, the envy and terror of the oppressor, may the auspicious day hastily come, when the liberality of thy institutions, and the unsullied justice of thy laws, shall command the plaudits of the world; when the rights of the master and slave shall be poised in equal scales; and the banner of liberty that floats on thy capital, become like the serpent in the desert, upon which every one who is stung by oppression, may look and be healed.

LORD STOWEL'S JUDGMENT.

The judgment delivered by Lord Stowel, in Re Grace, a negro slave, has attracted so much of the attention of persons interested in the great slave question, that we cannot let it pass without further comment. No judge of our times, with, perhaps, the exception of Sir William Grant, has gained for his decisions any thing like

the same degree of admiration and regard. Something is perhaps attributable to the law (the civil) which it was his fortune to administer; but the beautiful simplicity, the lucid arrangement, the copious and elegant diction, the correct and logical, yet popular, strain of reasoning to be found in Lord Stowel's judgments, combined with the fruits of great erudition, bespeak a mind of the highest order, cultivated with the most assiduous care. How much shall we lament that the expiring energies of such a mind should, as in this instance, be rallied against the holiest cause and the clearest interests of humanity and justice! The case came before Lord Stowel as judge of the admiralty court, upon an appeal from the vice-admiralty court of Antigua. A female negro, named Grace, had passed from that island to England with her mistress, and returned thither without certain formalities of registration and certificates prescribed by the 47th and 59th of the late king, on the entrance into any of the colonies of a slave. A breach of these regulations involves a forfeiture of the owner's property in the slave to the king; accordingly, in the case of Grace, a process was instituted in the colonial court, by an officer who has an interest in the forfeiture. The colonial court held, that the claim made on the part of the crown was invalid; the regulations referred to not applying to the case of a slave coming into the colony from England, but intended exclusively to affect the transit of slaves from one colony to another. This decision was affirmed by Lord Stowel with it we have no concern: but a question being raised in the course of the pleadings on the effect of a colonial slave's coming to England, and the nature and extent of the emancipation thereby occasioned; and on the efficacy of such emancipation in the event of the slave's return to a colony, wherein slavery is recognized by law, his lordship devotes himself with great earnestness to the discussion: and it is that part of the judgment which seems to demand our consideration. His lordship states and combats the position, that a slave's arrival in England works such an emancipation, as in the event of his return to the colony enures to make him free