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206 CHATTEL-SLAVERY LAWFUL.
the other New-England colonies at that period was undoubtedly the same on this subject. The Dutch records allude to the existence of slavery in the settlements on the Hudson in 1626, or even at the first settlement of the colony of New Amsterdam, and in those on the Delaware in 1639.l From the legislation of the Carolinas, it seems that negroes were held in them as slaves from the earliest period of their settlement.2 But it is probable that, in all the colonies, Indians taken in war, were held as slaves before any negroes were imported from Africa. Slave-holding was not permitted in Georgia before the year 1747. • § 201. Whatever sanction may have been given to slavery in any of its legal aspects, by subsequent statutes of the British Parliament, royal ordinances, or colonial legislation, such acts of strictly positive legislation could have had no effect upon the condition of persons in the colonies at the time of the first introduction of African and Indian slaves. It is, however, a clear deduction from the elementary legal principles which have been hereinbefore set forth, that the chattel-slavery of heathen Africans and Indians was lawful at this time in all the colonies, and properly received judicial recognition and support in international and municipal (internal) private law. This lawfulness is not here stated as the result of a custom, the inception of which is here described, or as being proved by subsequent long-continued acquiescence, but as being, at the time of such inception, the effect of established principles, judicially recognized in all countries, having the authority of that jurisprudence which among all nations is taken to be the foundation of the far greater portion of legal rights and obligations. It was judicially regarded as resting on natural reason indicated in the law of nations historically known at that
negroes are mentioned as being held in slavery at Noddle's Island in Boston harbor. See Mass. Hist CoR, vol. 3, p. 231.
1 Moulton's Hist N. Y., vol. 1, part 2, p. 373. 1 Hildr. 441. 2 Banc. 303. The Dutch W. I. Company agreed to furnish the colony of New Netherlands with as many blacks as they conveniently could. 1 Broadhead, p. 196. Bettle's essay in Mem, Penn. Hist. Soc., vol. 1. Hazard's Annals of Pennsylvania. Albany Records. No mention is made of negroes in Campanius's account of the Danish colony of New Sweden.
'A cargo of negroes from Barbadoes brought by Sir John Yeomans, in 1671. 2 Banc. 170.
* Stevens' Hist of Georgia, p. 812.
CONSTRUCTION OF THE CHARTERS. 207
period—the common law of the world1—applied in international and in municipal' law because indicating the will of the supreme source of law having the territorial jurisdiction, whenever not disallowed by some more direct exposition of that will.3
§ 202. On the same principle by which the historical law of nations was received in supporting the slavery of foreign Africans, that is, that of being an indication of natural reason supposed to be accepted by the supreme power of the state, the same doctrines of the law of nations, or universal jurisprudence, must be held to have obtained with legal effect in interpreting the legislative enactments of the supreme power and the personal extent of the charter provisions operating as private law.
1 The existence of a jus gentium, or historical law of nations, operating as private law, must be admitted in construing statements like this of Taney, Ch. J., in Dred Scott's case, 19 Howard, R. 407: "They [negroes] had for more than a century before, [the time of the Declaration of Independence and of the adoption of the Constitution of the U. S.,] been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, &c." It is not necessary to suppose the learned Chief Justice to intend saying that a negro who had never been a slave, or who had been legally manumitted, had no rights, &c., so that it was everywhere lawful for any white man to seize such a one and treat him as an article of property. The law of nations, as set forth in the preceding chapters, never embraced such a doctrine. If his meaning is that a sovereign state, having jurisdiction over the person of a negro, was not bound to respect in him any rights—the same may as truly be said of any white man: any ethical distinction that may exist cannot affect the matter.
* With the use of the term law of nations in the text, contrast that given to it in Neal v. Farmer, 9 Geo., R 570, 571; where the court in asserting the legality of slavery independently of statute or the common law of England, ascribes it to "the law of nations " in the sense of public international law—a law of which nations are the subjects. On the other hand see Mr. Seward's use of the law of nature and of nations, ante, p. 193, n. Such contradictions in the premises used by eminent jurists are here appealed to as vindicating the necessity of that discrimination of terms which was attempted in the first chapter.
* Granville Sharpe, in his Tract on the Law of Nature, London, 1777, p. 3, takes the jus gentium in respect tcslavery as being contrary to the law of natural right recognized by the Roman law, quoting Inst I. Tit. III. § 2. Servitus est autem constitute juris gentium qua quis dominio alieno contra naturam subjicitur. Bracton having repeated the same, Lib. L, cap. 6, and Fleta, Lib. I., cap. 3, they are, with Cowell's Institutes, quoted by Sharpe as proving that slavery is contrary to the rule of natural reason received in the common law. The method followed by this writer to prove a doctrine of the common law of England, is the same as that which is indicated in this chapter and the preceding. But the law of natural reason on this point, deducible from the Institute, is precisely the reverse of that for which he refers to it, as has been shown in the preceding chapter.
208 SLAVERY UNDER STATUTE LAW.
The doctrine supporting chattel-slavery must be held to have limited the extent of the term "colonists," where used in the charters to describe the subjects of privilege and guarantee, to legal persons as distinguished from slaves; even if it did not go farther and confine the term to whites, or persons of the European race, to the exclusion of Africans and Indians, whether bond or free.1
§ 203. It has been shown, in the third chapter, that, where the guarantee of common law rights did not apply to determine the relations and rights of private persons, the power of sovereignty to affect such relations and rights must have been divided between the local government of each colony and the imperial government; that the limits of each were, unavoidably, always undetermined; but that, admitting the rights and obligations of the colonists in internal relations (relations between persons regarded as domiciled inhabitants) to have been essentially within the powers of the local governments, yet such as were incident to relations of commerce and international intercourse must have been, to the greater extent, within the general control of the parliament and crown of England.* There does not appear to have been any act of positive legislation, proceeding from the imperial authority, which determined the condition of Africans or Indians within the colonies, considered either as alien or domiciled persons. There are statutes, however, which, being interpreted by the "usage and custom of merchants" as prevailing at that time, have always been held to support sla
1 Compare the language of the Supreme Court of Pennsylvania in Hohbs r. Fogg, 6 Watts' R. 558-560, when limiting the personal extent of the term freeman.
* See ante, § 131. To this power may be referred the frequent rejection of colonial laws restricting the introduction of African slaves. Davis » Curry, 1810. 2 Bibb's Rep.(Ky.,) 238—By the Court: "Slavery, it is believed, was introduced into the colonies by the regulation of the mother country, of which the courts in all the colonies were equally bound to take notice, in the same manner as the courts of the several states are now bound to take notice of any regulation of the general government; and what the courts of the colonies were bound to take notice, judicially, we must still be presumed to know, if not as matter of law, at least as matter of history." Though the condition of slavery in the colonies may not have been created by the imperial legislature, yet it may be said with truth, that the colonies were compelled to receive African slaves by the home government. See Brougham's CoL Pol., B. II., § 1. 3 Banc. 411. Stevens' Georgia 285. 2 Tucker's Bl. app. II. Madison Papers, III., 1390. Walsh's Appeal, 310-319. Lord Stowell in 2 Hagg. Ad. R. 109.
COLONIAL LAW FOR SLAVERY. 209
very in the colonies, if not in England; their effect being however mainly to recognize property in negroes when on the high seas in British vessels, and before they could, as natural persons, be considered the domiciled inhabitants of any of the British dominions. The just effect of these statutes in this respect is derived from the view herein before given of the law of nations, and its effect in international and municipal (internal) law.1
§ 204. If undetermined by imperial statutes or by the charter provision, the condition or status of the African or Indian, when regarded either as a natural person within the territorial limits of a colony or as the property of a legal person domiciled within those limits, would depend upon the powers vested in the local or colonial government, as being one of the subjects of its proper jurisdiction. The law derived from the exercise of this power would be known either from positive legislation or from a judicial application of natural reason, in the manner indicated in the first chapter. Principles thus judicially applied would form a part of the common law prevailing in and for the colony. It was an admitted principle of the colonial system, or of the public law of the Empire, that the colonial courts, in determining the rules having this character, were independent of the courts of common law in England. Their decisions were reviewable, if at all, only by the king in council.' Common
1 See ante, § 176. Burge's Comm. vol. 1, p. 737, n.; "The following are among the numerous acts by which the British legislature encouraged the African slave trade and sanctioned slavery in her colonies:—Royal charters of Cha. 2, in 1664 and 1672, 9 and 10 Wm. 3, c. 26. The 6 Anne, c. 37, § 18, subjects captains of his majesty's ships of war, arriving at any of the harbors of the colonies, "to the good and necessary laws in force there for the preventing the carrying off from the said colonies any servant or slave, without the consent of the owner, and to the penalties and forfeitures declared by such laws." 10 Anne, c. 27. The Queen's speech to Parliament in June, 1712. 23 Geo. 2, c. 31. 25 Geo. 2, c . 40. 4 Geo. 3, c. 20. 5 Geo. 3, c. 44. 23 Geo. 3, c 65. 27 Geo. 3, c. 27. The proceedings of the House of Commons from 1707 to 1713. Acts encouraging loans to the proprietors in the West Indies from British subjects and foreigners. 5 Geo. 2, c. 7. 13 Geo. 3, c. 14. 14 Geo. 3, c. 79. 1 and 2 Geo 4, c. 51. 3 Geo. 4, c. 47. 5 Geo. 4, c. 113, § 37. 59 Geo. 3, c. 120, for the registration of slaves. The act of the legislature of Pennsylvania, 7 June, 1712, to prevent importation of negroes and Indians into that province, was disallowed by Great Britain and accordingly repealed by act of Queen Anne, 20th Feb. 1713.— 1760, South Carolina passed an act to prevent the further importation of slaves, but Great Britain disallowed the act and sent a circular to all the other governors, pro- 'hibiting them from assenting to any similar act."
'Story's Comm. §§ 163, 175, 176, and citations.
210 BAPTISED OR CONVERTED SLAVES.
law had therefore in each colony a several growth or progressive formation, as it had in England, and if the personal guarantee of rights, according to the law of England, did not apply to the negro or Indian inhabitant, there was no necessity that the rules judicially derived to determine their condition, as domiciled subjects under their several judicatures, should be the same in England and in the colonies. It does not appear from any historical record that the question—whether a heathen negro or Indian slave became free on being converted to Christianity, or on receiving baptism—was ever discussed before the colonial courts.1 It is certain that slaves so converted or baptised and their issue, born in the colonies, and therefore, it would seem, nominally Christian, were usually retained in slavery and bought and sold, either as bondmen or as chattels, and that the right of ownership in such slaves must constantly have received judicial recognition before the existence of any colonial statutes determining their condition. It seems impossible now to ascertain whether the courts regarded the slave, after conversion, as still a chattel, or as a legal person held to bondage for life. The different colonial judicatures may, very probably, have had different views on this point. In determining the application of natural reason to the circumstances of converted or baptised slaves and their issue, they undoubtedly referred to the usage and practice of other nations, in reference to the same class of persons. Under this reference, if they regarded slaves as legal persons, capable of contracting legal marriages, they may have held that the condition of the issue followed that of the parents,
1 There are however many colonial statutes which show that the question had been mooted. See port ch. vi. Mr. Bancroft, Hist. U. S., iii. 409, says—" From New
(England to Carolina, the 'notion' prevailed, that' being baptized is inconsistent with
f I state of slavery;' and this early apprehension proved a main obstacle to the culture and conversion of these poor people." Citing Berkeley's Works, iii. 247.
The statute of Virginia, 1682, c. i., see post ch. vi., seems to recognize the existence of a principle of universal prevalence that a negro, Moor or mulatto slave, having been converted to Christianity, is no longer a chattel, and can only be considered as a servant bound for years, on an equality of status with European imported servants; and that such person can be a slave only by force of some statute or local cus\ torn—jus proprium. It declares that "by the laws of Out country" the conversion "doth not manumit them or set them free," but that, if introduced after conversion, the master or owner would be obliged " to depart from their just right and title to such slave and sell him for no longer time than the English," &c., &c.