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Slavery had existed in Africa from the first acquaintance of Europeans with that continent;1 but negro slavery, in connection with modern European ' law, was based on the idea above stated as part of the law of nations for Christian powers: that is, the African or Indian slave was held by the European master, as merchandise, by a principle of law then common to all Christian nations, without reference to the villenage of the feudal system; as the slave of the Roman master, of whatever race, had been held by a law common to the then known world. § 165. At the time of the planting of the English colonies in America, the laws of war in Europe still retained traces of ancient harshness, and the right of Christian powers to enslave prisoners in war with heathen and infidel nations, was almost universally admitted. In wars between Europeans, the custom of enslaving prisoners of war had ceased, and the claim of private property in the captor, giving a right to demand ransom, which had existed for some time after the amelioration of the ancient law of captivity, was almost universally abandoned.' But the slavery of captives of the different creeds was still supported by Christians and Mohammedans against each other.

propriate the kingdoms, goods and possessions of all infidels or heathen in Africa, or wheresoever found, to reduce their persons to perpetual slavery, or to destroy them from the face of the earth "—" to take any of the Guineans or other negroes, by force or by barter." Gregory XVI. in his Bull against the slave trade in 1840 (see Bishop England's Works, vol. 3, p. 114) cites Bull of Pius II. in 1462 as against the same trade. According to the Bull of Gregory XVI., Paul III., 1537, Urban VIII., 1639, Benedict XIV., 1741, and Pius VII. opposed the slave trade. The author of the letters referred to says that their Bulls were not against the trade in general, or not against the African slave trade.

1 Banc. Hist, voL L, 165. Vol. iii., 403. Hune's Darstellung, vol. i., ch. 3. The Romans, in Virgil's time, had negro slaves; a small poem entitled Moretum, ascribed to him, contains a description of a negro woman, represented as being the only domestic of a peasant, "exigui cultor rusticus agri," v. 31:

"Interdum claraat Cybalen, erat unlca cnstos,
Afra genus, totapatnam teatanto flgura,
Torta comam. labroqne tunu-ns, et fusca colorem;
Peotore lata, jacens mammis, compreaaior alvo,
, Crurtfeus extlis, spatioso prodiga planta;

Contlnuls rimia calcanea selaaa rigebant."

* Mackeldey's Compendium Tr. Kaufmann, p. 85, note: "In like manner such precepts [of the Roman law] are inapplicable, which rest upon principles that have never been acknowledged in Germany, or the objects of which do not exist here; e. g. the law applicable to slavery." But slavery is allowed under the Prussian Landrecht, Th. II., tit. 5, § 196, operating as private international law. See Article by the late Mr. Wheaton in Revue Etrang. et Fran., tom, via., p. 345, and the 6th ed. of his Internal Law, Introd. by W. B. Lawrence, Esq., p. exxx.

'1 Kent's Comm., p. 14. Bynkershoek: Qucest. Jur. Pub., Lib. I., o. 3.


Moors—the Arabian inhabitants of Africa, were still held as slaves by captivity, in Spain, France, and Italy; and probably many Africans of negro race were held as slaves in Europe under the name of Moors,1 and their slavery ascribed to the same international usage. Domestic slavery, as part of the system of civil society, still remained, as at the present day, among Mohammedan nations, and the negro tribes of Africa; in which country it is believed to have been for many centuries the condition of a vast majority of the inhabitants.' It is probable that long after the ancient chattel slavery of Europe had been replaced by the serfdom of the Middle Ages, negroes had occasionally been brought as articles of commerce to Europe, and retained there as domestic slaves.' But it was not until the geographical discoveries of the Portuguese in the fifteenth century, that African slaves, in any considerable number, were made an article of commerce in Europe. The first recorded instance of the importation of African slaves by the Portuguese from the western coast of Africa, illustrates the principles of the law of nations exhibited at that time in the international intercourse of Christian nations with Mohammedans, Moors, and heathen negroes of Africa. In the year 1440, Antonio Gonsalez, sent out by Prince Henry of Portugal on a voyage of discovery, attacked a party of wandering Arabs or Moors, and carried off ten or twelve of them captives to Portugal, where, and in the Spanish portion of the peninsula, thousands of the subjects of the extinct Moorish kingdom in Spain were already enduring slavery, as the consequence of their defeat by the Christian princes. Three of these captive Moors, at the command of Prince Henry, and on their promise to pay ransom, were sent back with Gonsalez, on his second voyage to the African coast in 1442; and he received from their kinsmen, in exchange for his prisoners, a ransom consisting of gold dust and ten or twelve negro slaves, as ordinary articles of merchandise.' A similar

1 Iliine, vol L, pp. 128, 180, 211.

* Hune, vol. I., pp. 148—175.

* Bancroft, voL t, p. 166. Hiine, I., 150—163. Citing Edrisius and Leo Africanus, that accounts of a regular trade in negro slaves exist from about the year 190. Kaynnrs W. I., torn. 4, p. 48.

* Hiine, voL L, p. 181. 1 Banc., 166, cites Navarete, Introduccion S. XIX., (see 2 Prcsc Kerd. and Is., 114,) that Spain anticipated Portugal in introducing negroes into Europe. That Sevillian merchants imported slaves from Western Africa,—Irving*! Columbus, vol. II., p. 861.


transaction became one of the objects of succeeding voyages. Moors and negroes were carried away, by force, by the Portuguese adventurers, until, after the exploration of the coast had been pushed as far south as the richer and more populous shores of the Gulf of Guinea, it was found safer and more profitable to procure only negroes, by purchase from the native slave merchants.

§ 166. This traffic, in negroes as merchandise, was at this time recognized as legitimate by European governments, without any direct sanction from positive legislation, but rested on the general custom among nations, known both in municipal and international private law,—that custom which, under the name of "the custom of merchants,"—meaning merchants without regard to nationality, was recognized in the English courts as a rule of law. Property in heathen negroes bought in Africa, being then regarded as the effect of natural law, so far as it is known in jurisprudence, or as an illustration of the distinction between persons and things, entering into all law, because founded in natural reason. The trade in that property was regarded as founded on existing relations between legal persons in respect to things, which might, like any other branch of commerce, be regulated by statute, without a previous act declaring the condition of the negroes who were the objects of those relations and of that commerce. Like many other branches of commerce at that period, it was an object of monopoly; being sometimes granted by the patent of the monarch to companies of discoverers, commercial adventurers, and colonists trading in and between those regions then recently made known, and popularly designated the Eastern and Western Indies. The conversion of infidels being always proposed as a prominent object, and declared to be the justifying motive for the forcible enslavement of barbarians and heathens, whenever contemplated in such enterprises;l if not also for the acquisition of purchased slaves. On the discovery of America, the same reasons which upheld the slavery of African Moors and negroes were held to

1 1 Hune, p. 304, cites Benezet, p. 58.


apply to the barbarian inhabitants called Indians; and property in such Indians had the same basis in the law of nations; until a distinction was made, between the negro and Indian races, by legislative enactment in the colonies of the several colonizing nations.1 Those taking effect in the English colonies will hereafter be more particularly referred to.

§ 167. Whatever foundation there may have been in natural reason for slavery, in the opinion of the nations of antiquity, the Roman legislators, or the Asiatic races, there does not appear to have been, in their judgment, any arguments, from the same source, establishing such differences between mankind that some races were liable to that chattel condition, and others naturally exempt.' The law of nations, in their conception of it, regarded all men as equally capable of becoming property. The modern law of nations, as exhibited in the practice of modern European states, must be considered not only to have varied from the ancient rule, in asserting a right of dominion in Christians over infidels, but to have been farther modified, since the geographical discoveries of the fifteenth century, and during the establishment of civilized dominion and municipal law in America, by the introduction of a distinction founded on race or descent, and applied according to physical structure. The capacity for that condition of loss of legal personality, or the liability to become property, being, since that period, confined to the Indian races of America, and African Moors and negroes;

1 1 Banc.. 167,—that natives from the coast of America were kidnapped by slavers: cites Peter Martyr d'Anghiera, d. vii., c. 1, 2. Hakluyt, v. 404, 405, 407.

The history of the introduction of negroes into Spanish America, and of the influence of Las Casas in effecting it is well known: see Irving's History of Columbus. Robertson's Hist of Am., and Hist, of Charles V. 1 Banc., ch. 5. 1 Hiine's Darstellung, ch. 3. Herrera is the original authority on these points.

* In his speech, 7 March, 1850, Mr. Webster said, Works, vol. V.,'p. 329,—" The ingenious philosophy of the Greeks found, or sought to find, a justification for it exactly upon the grounds which have been assumed for such a justification in this country: that is, a natural and original difference among the races of mankind, and the inferiority of the black or colored race to the white. The Greeks justified their system of slavery upon that idea precisely. They held the African and some of the Asiatic tribes to be inferior to the white race," &c. There is nothing to justify this assertion. It appears to be founded on the assumption that those whom the Greeks called dipflapo* were identical with the half-civilized nations of our own time. The Greeks meant by barbarians those who were not Greeks: and believed a Greek captive to be a lawful slave to a barbarian captor.



in other words, this principle of the law of nations became applied as a law personal to those races.1

§ 168. Slavery of Africans or Indians, whenever thus supported on principles of ancient authority, modified by application to persons of a particular race under the existing law of nations' would, apparently, have continued its existence in the issue of those persons, by a principle derived from the same source, that is, the inheritable character of slavery, or that principle by which, the personality of the parent being unrecognized by the law, legal personality was not acquired by the issue; which was considered only as the natural increase of the property, and equally the object of ownership."

But, inasmuch as the heathenism of the enslaved was presupposed to be an essential circumstance and part of that condition of things upon which the law of nations, as then received, recognized the chattel condition of the negro or Indian bondman, and the right of property in the European owner, it would be a natural question before any tribunal, within whose jurisdiction such negro or Indian might afterwards be found, whether after his baptism or presumed conversion there was any rule, having the same historical existence, that is, being a law of nations, which would still support that condition and right of

1 It is this personal character of the law of chattel slavery in modern times, which restrains the effect (as an indication of the historical law of nation*,) of that otherwise general attribution of the right of personal liberty, which, by certain European jurists of the 17th century, herein after cited, is asserted to have had effect in preventing the international recognition of slavery in most European countries at the beginning of that century: see post, ch. VII., and notes from Heineccius, Christinaras, &c. The period at which they wrote was precisely that at which the European serfdom had acquired the distinctive character of an institution of the local law(j. proprium) of each country, and at which the chattel slavery of heathen and barbarian negroes and Indians, by the law ofnatiom, continuing to be applied to them as a personal law, was becoming more frequently recognized in the international law of the commercial and colonizing nations of Europe. This modification of the law of nations, at this period, is shown by Bodin, de Rep., [A. D. 1583,] B. I., ch. 5, Knolles' Transl., London, 1606, p. 32,—" and for that the whole world is full of slaves, excepting certain countries in Europe, (which since, by little and little, receive them)," &c.; and in same chapter—" and although servitude, in these latter times, was left off, for about three or four hundred years, yet it is now again approved by the great argument and consent of almost all nations."

By some writers on the subject of African slavery, and even by some judicial tribunals, it has been held that this personal character of the law of slavery is authoritatively determined by Revelation. In Neal v. Farmer, 9 Georgia R, p. 582, it is declared that the slavery of " the issue of Ham,"—meaning of persons of African or negro race, is "an institution of Christianity." (Italicised in tlie Report.) * See ante, § 58. 'See ante, § 154.

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