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- Herausgeber: Booksell-Verlag
- Kategorie: Geisteswissenschaft
- Sprache: Englisch
"The Unconstitutionality of Slavery" is a book by American abolitionist Lysander Spooner advocating the view that the United States Constitution prohibited slavery. This view was advocated in contrast to that of William Lloyd Garrison who advocated opposing the constitution on the grounds that it supported slavery. In the pamphlet, Spooner shows that none of the state governments of the slave states specifically authorized slavery, that the U.S. Constitution contains several clauses that are contradictory with slavery, that slavery was a violation of natural law, and that the intentions of the Constitutional Convention have no legal bearing on the document they created.
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Veröffentlichungsjahr: 2019
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The Unconstitutionality of Slavery (Vol. 1&2)
Table of Contents
The Unconstitutionality of Slavery
Chapter I. What is Law?
Before examining the language of the Constitution, in regard to Slavery, let us obtain a view of the principles, by virtue of which law arises out of those constitutions and compacts, by which people agree to establish government.
To do this it is necessary to define the term law. Popular opinions are very loose and indefinite, both as to the true definition of law, and also as to the principle, by virtue of which law results from the compacts or contracts of mankind with each other.
What then is Law? That law, I mean, which, and which only, judicial tribunals are morally bound, under all circumstances, to declare and sustain?
In answering this question, I shall attempt to show that law is an intelligible principle of right, necessarily resulting from the nature of man; and not an arbitrary rule, that can be established by mere will, numbers or power.
To determine whether this proposition be correct, we must look at the general signification of the term law.
The true and general meaning of it, is that natural, permanent, unalterable principle, which governs any particular thing or class of things. The principle is strictly a natural one; and the term applies to every natural principle, whether mental, moral or physical. Thus we speak of the laws of mind; meaning thereby those natural, universal and necessary principles, according to which mind acts, or by which it is governed. We speak too of the moral law; which is merely an universal principle of moral obligation, that arises out of the nature of men, and their relations to each other, and to other things—and is consequently as unalterable as the nature of men. And it is solely because it is unalterable in its nature, and universal in its application, that it is denominated law. If it were changeable, partial or arbitrary, it would be no law. Thus we speak of physical laws; of the laws, for instance, that govern the solar system; of the laws of motion, the laws of gravitation, the laws of light, &c., &c.—Also the laws that govern the vegetable and animal kingdoms, in all their various departments: among which laws may be named, for example, the one that like produces like. Unless the operation of this principle were uniform, universal and necessary, it would be no law.
Law, then, applied to any object or thing whatever, signifies a natural, unalterable, universal principle, governing such object or thing. Any rule, not existing in the nature of things, or that is not permanent, universal and inflexible in its application, is no law, according to any correct definition of the term law.
What, then, is that natural, universal, impartial and inflexible principle, which, under all circumstances, necessarily fixes, determines, defines and governs the civil rights of men? Those rights of person, property, &c., which one human being has, as against other human beings?
I shall define it to be simply the rule, principle, obligation or requirement of natural justice.
This rule, principle, obligation or requirement of natural justice, has its origin in the natural rights of individuals, results necessarily from them, keeps them ever in view as its end and purpose, secures their enjoyment, and forbids their violation. It also secures all those acquisitions of property, privilege and claim, which men have a natural right to make by labor and contract.
Such is the true meaning of the term law, as applied to the civil rights of men. And I doubt if any other definition of law can be given, that will prove correct in every, or necessarily in any possible case. The very idea of law originates in men’s natural rights. There is no other standard, than natural rights, by which civil law can be measured. Law has always been the name of that rule or principle of justice, which protects those rights. Thus we speak of natural law. Natural law, in fact, constitutes the great body of the law that is professedly administered by judicial tribunals: and it always necessarily must be—for it is impossible to anticipate a thousandth part of the cases that arise, so as to enact a special law for them. Wherever the cases have not been thus anticipated, the natural law prevails. We thus politically and judicially recognize the principle of law as originating in the nature and rights of men. By recognizing it as originating in the nature of men, we recognize it as a principle, that is necessarily as immutable, and as indestructible as the nature of man. We also, in the same way, recognize the impartiality and universality of its application.
If, then, law be a natural principle—one necessarily resulting from the very nature of man, and capable of being destroyed or changed only by destroying or changing the nature of man—it necessarily follows that it must be of higher and more inflexible obligation than any other rule of conduct, which the arbitrary will of any man, or combination of men, may attempt to establish. Certainly no rule can be of such high, universal and inflexible obligation, as that, which, if observed, secures the rights, the safety and liberty of all.
Natural law, then, is the paramount law. And, being the paramount law, it is necessarily the only law: for, being applicable to every possible case that can arise touching the rights of men, any other principle or rule, that should arbitrarily be applied to those rights, would necessarily conflict with it. And, as a merely arbitrary, partial and temporary rule must, of necessity, be of less obligation than a natural, permanent, equal and universal one, the arbitrary one becomes, in reality, of no obligation at all, when the two come in collision. Consequently there is, and can be, correctly speaking, no law but natural law. There is no other principle or rule, applicable to the rights of men, that is obligatory in comparison with this, in any case whatever. And this natural law is no other than that rule of natural justice, which results either directly from men’s natural rights, or from such acquisitions as they have a natural right to make, or from such contracts as they have a natural right to enter into.
Natural law recognizes the validity of all contracts which men have a natural right to make, and which justice requires to be fulfilled: such, for example, as contracts that render equivalent for equivalent, and are at the same time consistent with morality, the natural rights of men, and those rights of property, privilege, &c., which men have a natural right to acquire by labor and contract.
Natural law, therefore, inasmuch as it recognizes the natural right of men to enter into obligatory contracts, permits the formation of government, founded on contract, as all our governments profess to be. But in order that the contract of government may be valid and lawful, it must purport to authorize nothing inconsistent with natural justice, and men’s natural rights. It cannot lawfully authorize government to destroy or take from men their natural rights: for natural rights are inalienable, and can no more be surrendered to government—which is but an association or individuals—than to a single individual. They are a necessary attribute of man’s nature; and he can no more part with them—to government or anybody else—than with his nature itself. But the contract of government may lawfully authorize the adoption of means—not inconsistent with natural justice—for the better protection of men’s natural rights. And this is the legitimate and true object of government. And rules and statutes, not inconsistent with natural justice and men’s natural rights, if enacted by such government, are binding, on the ground of contract, upon those who are parties to the contract, which creates the government, and authorizes it to pass rules and statutes to carry out its objects.1
But natural law tries the contract of government, and declares it lawful or unlawful, obligatory or invalid, by the same rules by which it tries all other contracts between man and man. A contract for the establishment of government, being nothing but a voluntary contract between individuals for their mutual benefit, differs, in nothing that is essential to its validity from any other contract between man and man, or between nation and nation. If two individuals enter into a contract to commit trespass, theft, robbery or murder upon a third, the contract is unlawful and void, simply because it is a contract to violate natural justice, or men’s natural rights. If two nations enter into a treaty, that they will unite in plundering, enslaving or destroying a third, the treaty is unlawful, void and of no obligation, simply because it is contrary to justice and men’s natural rights. On the same principle, if the majority, however large, of the people of a country, enter into a contract of government, called a constitution, by which they agree to aid, abet or accomplish any kind of injustice, or to destroy or invade the natural rights of any person or persons whatsoever, whether such persons be parties to the compact or not, this contract of government is unlawful and void—and for the same reason that a treaty between two nations for a similar purpose, or a contract of the same nature between two individuals, is unlawful and void. Such a contract of government has no moral sanction. It confers no rightful authority upon those appointed to administer it. It confers no legal or moral rights, and imposes no legal or moral obligation upon the people who are parties to it. The only duties, which any one can owe to it, or to the government established under color of its authority, are disobedience, resistance, destruction.
Judicial tribunals, sitting under the authority of this unlawful contract or constitution, are bound, equally with other men, to declare it, and all unjust enactments passed by the government in pursuance of it, unlawful and void. These judicial tribunals cannot, by accepting office under a government, rid themselves of that paramount obligation, that all men are under, to declare, if they declare anything, that justice is law; that government can have no lawful powers, except those with which it has been invested by lawful contract; and that an unlawful contract for the establishment of government, is as unlawful and void as any other contract to do injustice.
No oaths, which judicial or other officers may take, to carry out and support an unlawful contract or constitution of government, are of any moral obligation. It is immoral to take such oaths, and it is criminal to fulfil them. They are, both in morals and law, like the oaths which individual pirates, thieves and bandits give to their confederates, as an assurance of their fidelity to the purposes for which they are associated. No man has any moral right to assume such oaths; they impose no obligation upon those who do assume them; they afford no moral justification for official acts, in themselves unjust, done in pursuance of them.
If these doctrines are correct, then those contracts of government, state and national, which we call constitutions, are void, and unlawful, so far as they purport to authorize, (if any of them do authorize,) anything in violation of natural justice, or the natural rights of any man or class of men whatsoever. And all judicial tribunals are bound, by the highest obligations that can rest upon them, to declare that these contracts, in all such particulars, (if any such there be,) are void, and not law. And all agents, legislative, executive, judicial and popular, who voluntarily lend their aid to the execution of any of the unlawful purposes of the government, are as much personally guilty, according to all the moral and legal principles, by which crime, in its essential character, is measured, as though they performed the same acts independently, and of their own volition.
Such is the true character and definition of law. Yet, instead of being allowed to signify, as it in reality does, that natural, universal and inflexible principle, which has its origin in the nature of man, keeps pace everywhere with the rights of man, as their shield and protector, binds alike governments and men, weighs by the same standard the acts of communities and individuals, and is paramount in its obligation to any other requirement which can be imposed upon men—instead, I say, of the term law being allowed to signify, as it really does, this immutable and overruling principle of natural justice, it has come to be applied to mere arbitrary rules of conduct, prescribed by individuals, or combinations of individuals, self-styled governments, who have no other title to the prerogative of establishing such rules, than is given them by the possession or command of sufficient physical power to coerce submission to them.
The injustice of these rules, however palpable and atrocious it may be, has not deterred their authors from dignifying them with the name of law. And, what is much more to be deplored, such has been the superstition of the people, and such their blind veneration for physical power, that this injustice has not opened their eyes to the distinction between law and force, between the sacred requirements of natural justice, and the criminal exactions of unrestrained selfishness and power. They have thus not only suffered the name of law to be stolen, and applied to crime as a cloak to conceal its true nature, but they have rendered homage and obedience to crime, under the name of law, until the very name of law, instead of signifying, in their minds, an immutable principle of right, has come to signify little more than an arbitrary command of power, without reference to its justice or its injustice, its innocence or its criminality. And now, commands the most criminal, if christened with the name of law, obtain nearly as ready an obedience, oftentimes a more ready obedience, than law and justice itself. This superstition, on the part of the people, which has thus allowed force and crime to usurp the name and occupy the throne of justice and law, is hardly paralleled in its grossness, even by that superstition, which, in darker ages of the world, has allowed falsehood, absurdity and cruelty to usurp the name and the throne of religion.
But I am aware that other definitions of law, widely different from that I have given, have been attempted—definitions too, which practically obtain, to a great extent, in our judicial tribunals, and in all the departments of government. But these other definitions are nevertheless, all, in themselves, uncertain, indefinite, mutable; and therefore incapable of being standards, by a reference to which the question of law, or no law, can be determined. Law, as defined by them, is capricious, arbitrary, unstable; is based upon no fixed principle; results from no established fact; is susceptible of only a limited, partial and arbitrary application; possesses no intrinsic authority; does not, in itself, recognize any moral principle; does not necessarily confer upon, or even acknowledge in individuals, any moral or civil rights; or impose upon them any moral obligation.
For example. One of these definitions—one that probably embraces the essence of all the rest—is this:
That “law is a rule of civil conduct, prescribed by the supreme power of a state, commanding what its subjects are to do, and prohibiting what they are to forbear.”—Noah Webster.
In this definition, hardly anything, that is essential to the idea of law, is made certain. Let us see. It says that,
“Law is a rule of civil conduct, prescribed by the supreme power of a state.”
What is the “supreme power,” that is here spoken of, as the fountain of law? Is it the supreme physical power? Or the largest concentration of physical power, whether it exist in one man or in a combination of men? Such is undoubtedly its meaning. And if such be its meaning, then the law is uncertain; for it is oftentimes uncertain where, or in what man, or body of men, in a state, the greatest amount of physical power is concentrated. Whenever a state should be divided into factions, no one having the supremacy of all the rest, law would not merely be inefficient, but the very principle of law itself would be actually extinguished. And men would have no “rule of civil conduct.” This result alone is sufficient to condemn this definition.
Again. If physical power be the fountain of law, then law and force are synonymous terms. Or, perhaps, rather, law would be the result of a combination of will and force; of will, united with a physical power sufficient to compel obedience to it, but not necessarily having any moral character whatever.
Are we prepared to admit the principle, that there is no real distinction between law and force? If not, we must reject this definition.
It is true that law may, in many cases, depend upon force as the means of its practical efficiency. But are law and force therefore identical in their essence?
According to this definition, too, a command to do injustice, is as much law, as a command to do justice. All that is necessary, according to this definition, to make the command a law, is that it issue from a will that is supported by physical force sufficient to coerce obedience.
Again. If mere will and power are sufficient, of themselves, to establish law—legitimate law—such law as judicial tribunals are morally bound, or even have a moral right to enforce—then it follows that wherever will and power are united, and continue united until they are successful in the accomplishment of any particular object, to which they are directed, they constitute the only legitimate law of that case, and judicial tribunals can take cognizance of no other.
And it makes no difference, on this principle, whether this combination of will and power be found in a single individual, or in a community of an hundred millions of individuals.—The numbers concerned do not alter the rule—otherwise law would be the result of numbers, instead of “supreme power.” It is therefore sufficient to comply with this definition, that the power be equal to the accomplishment of the object. And the will and power of one man are therefore as competent to make the law relative to any acts which he is able to execute, as the will and power of millions of men are to make the law relative to any acts which they are able to accomplish.
On this principle, then—that mere will and power are competent to establish the law that is to govern an act, without reference to the justice or injustice of the act itself, the will and power of any single individual to commit theft, would be sufficient to make theft lawful, as lawful as is any other act of injustice, which the will and power of communities, or large bodies of men, may be united to accomplish. And judicial tribunals are as much bound to recognize, as lawful, any act of injustice or crime, which the will and power of a single individual may have succeeded in accomplishing, as they are to recognize as lawful any act of injustice, which large and organized bodies of men, self-styled governments, may accomplish.
But, perhaps it will be said that the soundness of this definition depends upon the use of the word “state”—and that it therefore makes a distinction between “the supreme power of a state,” over a particular act, and the power of an individual over the same act.
But this addition of the word “state,” in reality leaves the definition just where it would have been without it. For what is “a state?” It is just what, and only what, the will and power of individuals may arbitrarily establish.
There is nothing fixed in the nature, character or boundaries of “a state.” Will and power may alter them at pleasure. The will and power of Nicholas, and that will and power which he has concentrated around, or rather within himself, establishes all Russia, both in Europe and Asia, as “a state.” By the same rule, the will and power of the owner of an acre of ground, may establish that acre as a state, and make his will and power, for the time being, supreme and lawful within it.
The will and power, also, that established “a state” yesterday, may be overcome to-day by an adverse will and power, that shall abolish that state, and incorporate it into another, over which this latter will and power shall to-day be “supreme.” And this latter will and power may also to-morrow be overcome by still another will and power mightier than they.
“A state,” then, is nothing fixed, permanent or certain in its nature. It is simply the boundaries, within which any single combination or concentration of will and power are efficient, or irresistible, for the time being.
This is the only true definition that can be given of “a state.” It is merely an arbitrary name given to the territorial limits of power. And if such be its true character, then it would follow, that the boundaries, though but two feet square, within which the will and power of a single individual are, for the time being, supreme, or irresistible, are, for all legal purposes, “a state”—and his will and power constitute, for the time being, the law within those limits; and his acts are, therefore, for the time being, as necessarily lawful, without respect to their intrinsic justice or injustice, as are the acts of larger bodies of men, within those limits where their will and power are supreme and irresistible.
If, then, law really be what this definition would make it, merely “a rule of civil conduct prescribed by the supreme power of a state”—it would follow, as a necessary consequence, that law is synonymous merely with will and force, wherever they are combined and in successful operation, for the present moment.
Under this definition, law offers no permanent guaranty for the safety, liberty, rights or happiness of any one. It licenses all possible crime, violence and wrong, both by governments and individuals. The definition was obviously invented by, and is suited merely to gloss over the purposes of, arbitrary power. We are therefore compelled to reject it, and to seek another, that shall make law less capricious, less uncertain, less arbitrary, more just, more safe to the rights of all, more permanent. And if we seek another, where shall we find it, unless we adopt the one first given, viz., that law is the rule, principle, obligation or requirement of natural justice?
Adopt this definition, and law becomes simple, intelligible, scientific; always consistent with itself; always harmonizing with morals, reason and truth. Reject this definition, and law is no longer a science: but a chaos of crude, conflicting and arbitrary edicts, unknown perchance to either morals, justice, reason or truth, and fleeting and capricious as the impulses of will, interest and power.
If, then, law really be nothing other than the rule, principle obligation or requirement of natural justice, it follows that government can have no powers except such as individuals may rightfully delegate to it: that no law, inconsistent with men’s natural rights, can arise out of any contract or compact of government: that constitutional law, under any form of government, consists only of those principles of the written constitution, that are consistent with natural law, and man’s natural rights; and that any other principles, that may be expressed by the letter of any constitution, are void and not law, and all judicial tribunals are bound to declare them so.
Though this doctrine may make sad havoc with constitutions and statute books, it is nevertheless law. It fixes and determines the real rights of all men; and its demands are as imperious as any that can exist under the name of law.
It is possible, perhaps, that this doctrine would spare enough of our existing constitutions, to save our governments from the necessity of a new organization. But whatever else it might spare, one thing it would not spare. It would spare no vestige of that system of human slavery, which now claims to exist by authority of law.2
Chapter II. Written Constitutions.
Taking it for granted that it has now been shown that no rule of civil conduct, that is inconsistent with the natural rights of men, can be rightfully established by government, or consequently be made obligatory as law, either upon the people, or upon judicial tribunals—let us now proceed to test the legality of slavery by those written constitutions of government, which judicial tribunals actually recognize as authoritative.
In making this examination, however, I shall not insist upon the principle of the preceding chapter, that there can be no law contrary to natural right; but shall admit, for the sake of the argument, that there may be such laws. I shall only claim that in the interpretation of all statutes and constitutions, the ordinary legal rules of interpretation be observed. The most important of these rules, and the one to which it will be necessary constantly to refer, is the one that all language must be construed “strictly” in favor of natural right. The rule is laid down by the Supreme Court of the United States in these words, to wit:
“Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.”3
It will probably appear from this examination of the written constitutions, that slavery neither has, nor ever had any constitutional existence in this country; that it has always been a mere abuse, sustained, in the first instance, merely by the common consent of the strongest party, without any law on the subject, and, in the second place, by a few unconstitutional enactments, made in defiance of the plainest provisions of their fundamental law.
For the more convenient consideration of this point, we will divide the constitutional history of the country into three periods; the first embracing the time from the first settlement of the country up to the Declaration of Independence; the second embracing the time from the Declaration of Independence to the adoption of the Constitution of the United States in 1789; and the third embracing all the time since the adoption of the Constitution of the United States.
Let us now consider the first period; that is, from the settlement of the country, to the Declaration of Independence.
Chapter III. The Colonial Charters.
When our ancestors came to this country, they brought with them the common law of England, including the writ of habeas corpus, (the essential principle of which, as will hereafter be shown, is to deny the right of property in man,) the trial by jury, and the other great principles of liberty, which prevail in England, and which have made it impossible that her soil should be trod by the foot of a slave.
These principles were incorporated into all the charters, granted to the colonies, (if all those charters were like those I have examined, and I have examined nearly all of them.)—The general provisions of those charters, as will be seen from the extracts given in the note, were, that the laws of the colonies should “not be repugnant or contrary, but, as nearly as circumstances would allow, conformable to the laws, statutes and rights of our kingdom of England.”4
Those charters were the fundamental constitutions of the colonies, with some immaterial exceptions, up to the time of the revolution; as much so as our national and state constitutions are now the fundamental laws of our governments.
The authority of these charters, during their continuance, and the general authority of the common law, prior to the revolution, have been recognized by the Supreme Court of the United States.5
No one of all these charters that I have examined—and I have examined nearly all of them—contained the least intimation that slavery had, or could have any legal existence under them. Slavery was therefore as much unconstitutional in the colonies, as it was in England.
It was decided by the Court of King’s Bench in England—Lord Mansfield being Chief Justice—before our revolution, and while the English Charters were the fundamental law of the colonies—that the principles of English liberty were so plainly incompatible with slavery, that even if a slaveholder, from another part of the world, brought his slave into England—though only for a temporary purpose, and with no intention of remaining—he nevertheless thereby gave the slave his liberty.
Previous to this decision, the privilege of bringing slaves into England, for temporary purposes, and of carrying them away, had long been tolerated.
This decision was given in the year 1772.6 And for aught I see, it was equally obligatory in this country as in England, and must have freed every slave in this country, if the question had then been raised here. But the slave knew not his rights, and had no one to raise the question for him.
The fact, that slavery was tolerated in the colonies, is no evidence of its legality; for slavery was tolerated, to a certain extent, in England, (as we have already seen,) for many years previous to the decision just cited—that is, the holders of slaves from abroad were allowed to bring their slaves into England, hold them during their stay there, and carry them away when they went. But the toleration of this practice did not make it lawful, notwithstanding all customs, not palpably and grossly contrary to the principles of English liberty, have great weight, in England, in establishing law.
The fact, that England tolerated, (i. e. did not punish criminally,) the African slave-trade at that time, could not legally establish slavery in the colonies, any more than it did in England—especially in defiance of the positive requirements of the charters, that the colonial legislation should be consonant to reason, and not repugnant to the laws of England.
Besides, the mere toleration of the slave trade could not make slavery itself—the right of property in man—lawful anywhere; not even on board the slave ship. Toleration of a wrong is not law. And especially the toleration of a wrong, (i. e. the bare omission to punish it criminally,) does not legalize one’s claim to property obtained by such wrong. Even if a wrong can be legalized at all, so as to enable one to acquire rights of property by such wrong, it can be done only by an explicit and positive provision.
The English statutes, on the subject of the slave trade, (so far as I have seen,) never attempted to legalize the right of property in man, in any of the thirteen North American colonies. It is doubtful whether they ever attempted to do it anywhere else. It is also doubtful whether Parliament had the power—or perhaps rather it is certain that they had not the power—to legalize it anywhere, if they had attempted to do so.7 And the cautious and curious phraseology of their statutes on the subject, indicates plainly that they themselves either doubted their power to legalize it, or feared to exercise it. They have therefore chosen to connive at slavery, to insinuate, intimate, and imply their approbation of it, rather than risk an affirmative enactment declaring that one man may be the property of another. But Lord Mansfield said, in Somerset’s case, that slavery was “so odious that nothing can be suffered to support it, but positive law.” No such positive law (I presume) was ever passed by Parliament—certainly not with reference to any of these thirteen colonies.
The statute of 1788, (which I have not seen,) in regard to the slave trade, may perhaps have relieved those engaged in it, in certain cases, from their liability to be punished criminally for the act. But there is a great difference between a statute, that should merely screen a person from punishment for a crime, and one that should legalize his right to property acquired by the crime. Besides, this act was passed after the separation between America and England, and therefore could have done nothing towards legalizing slavery in the United States, even if it had legalized it in the English dominions.
The statutes of 1750, (23, George 2d, Ch. 31,) may have possibly authorized, by implication, (so far as Parliament could thus authorize,) the colonial governments, (if governments they could be called,) on the coast of Africa, to allow slavery under certain circumstances, and within the “settlements” on that coast. But, if it did, it was at most a grant of a merely local authority. It gave no authority to carry slaves from the African coast. But even if it had purported distinctly to authorize the slave trade from Africa to America, and to legalize the right of property in the particular slaves thereafter brought from Africa to America, it would nevertheless have done nothing towards legalizing the right of property in the slaves that had been brought to, and born in, the colonies for an hundred and thirty years previous to the statute. Neither the statute, nor any right of property acquired under it, (in the individual slaves thereafterwards brought from Africa,) would therefore avail anything for the legality of slavery in this country now; because the descendants of those brought from Africa under the act, cannot now be distinguished from the descendants of those who had, for the hundred and thirty years previous, been held in bondage without law.
But the presumption is, that, even after this statute was passed in 1750, if the slave trader’s right of property in the slave he was bringing to America, could have been brought before an English court for adjudication, the same principles would have been held to apply to it, as would have applied to a case arising within the island of Great Britain. And it must therefore always have been held by English courts, (in consistency with the decisions in Somerset’s case,) that the slave trader had no legal ownership of his slave. And if the slave trader had no legal right of property in his slave, he could transfer no legal right of property to a purchaser in the colonies. Consequently the slavery of those that were brought into the colonies after the statute of 1750, was equally illegal with that of those who had been brought in before.8
The conclusion or the whole matter is, that until some reason appears against them, we are bound by the decision of the King’s Bench in 1772, and the colonial charters. That decision declared that there was, at that time, in England, no right of property in man, (notwithstanding the English government had for a long time connived at the slave trade.)—The colonial charters required the legislation of the colonies to be “consonant to reason, and not repugnant or contrary, but conformable, or agreeable, as nearly as circumstances would allow, to the laws, statutes and rights of the realm of England.” That decision, then, if correct, settled the law both for England and the colonies. And if so, there was no constitutional slavery in the colonies up to the time of the revolution.
Chapter IV. Colonial Statutes.
But the colonial legislation on the subject of slavery, was not only void as being forbidden by the colonial charters, but in many of the colonies it was void for another reason, viz., that it did not sufficiently define the persons who might be made slaves.
Slavery, if it can be legalized at all, can be legalized only by positive legislation. Natural law gives it no aid. Custom imparts to it no legal sanction. This was the doctrine of the King’s Bench in Somerset’s case, as it is the doctrine of common sense. Lord Mansfield said, “So high an act of dominion must be recognized by the law of the country where it is used. * * * The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political—but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from the memory. It is so odious that nothing can be suffered to support it but positive law.”
Slavery, then, being the creature of positive legislation alone, can be created only by legislation that shall so particularly describe the persons to be made slaves, that they may be distinguished from all others. If there be any doubt left by the letter of the law, as to the persons to be made slaves, the efficacy of all other slave legislation is defeated simply by that uncertainty.
In several of the colonies, including some of those where slaves were most numerous, there were either no laws at all defining the persons who might be made slaves, or the laws, which attempted to define them, were so loosely framed that it cannot now be known who are the descendants of those designated as slaves, and who of those held in slavery without any color of law. As the presumption must—under the United States constitution—and indeed under the state constitutions also—be always in favor of liberty, it would probably now be impossible for a slaveholder to prove, in one case in an hundred, that his slave was descended, (through the maternal line, according to the slave code,) from any one who was originally a slave within the description given by the statutes.
When slavery was first introduced into the country, there were no laws at all on the subject. Men bought slaves of the slave traders, as they would have bought horses; and held them, and compelled them to labor, as they would have done horses, that is, by brute force. By common consent among the white race, this practice was tolerated without any law. At length slaves had in this way become so numerous, that some regulations became necessary, and the colonial governments began to pass statutes, which assumed the existence of slaves, although no laws defining the persons who might be made slaves, had ever been enacted. For instance, they passed statutes for the summary trial and punishment of slaves; statutes permitting the masters to chastise and baptize their slaves,11 and providing that baptism should not be considered, in law, an emancipation of them. Yet all the while no act had been passed declaring who might be slaves. Possession was apparently all the evidence that public sentiment demanded, of a master’s property in his slave. Under such a code, multitudes, who had either never been purchased as slaves, or who had once been emancipated, were doubtless seized and reduced to servitude by individual rapacity, without any more public cognizance of the act, than if the person so seized had been a stray sheep.
Virginia. Incredible as it may seem, slavery had existed in Virginia fifty years before even a statute was passed for the purpose of declaring who might be slaves; and then the persons were so described as to make the designation of no legal effect, at least as against Africans generally. And it was not until seventy-eight years more, (an hundred and twenty-eight years in all,) that any act was passed that would cover the case of the Africans generally, and make them slaves. Slavery was introduced in 1620, but no act was passed even purporting to declare who might be slaves, until 1670. In that year a statute was passed in these words: “That all servants, not being Christians, imported into this country by shipping, shall be slaves for their lives.”12
This word “servants” of course legally describes individuals known as such to the laws, and distinguished as such from other persons generally. But no class of Africans “imported,” were known as “servants,” as distinguished from Africans generally, or in any manner to bring them within the legal description of “servants,” as here used. In 1682 and in 1705 acts were again passed declaring “that all servants,” &c., imported, should be slaves. And it was not until 1748, after slavery had existed an hundred and twenty-eight years, that this description was changed for the following:
“That all persons, who have been or shall be imported into this colony,” &c., &c., shall be slaves.13
In 1776, the only statute in Virginia, under which the slaveholders could make any claim at all to their slaves, was passed as late as 1753, (one hundred and thirty-three years after slavery had been introduced;) all prior acts having been then repealed, without saving the rights acquired under them.14
Even if the colonial charters had contained no express prohibition upon slave laws, it would nevertheless be absurd to pretend that the colonial legislature had power, in 1753, to look back an hundred and thirty-three years, and arbitrarily reduce to slavery all colored persons that had been imported into, or born in the colony within that time. If they could not do this, then it follows that all the colored persons in Virginia, up to 1753, (only twenty-three years before the revolution,) and all their descendants to the present time, were and are free; and they cannot now be distinguished from the descendants of those subsequently imported. Under the presumption—furnished by the constitution of the United States—that all are free, few or no exceptions could now be proved.
In North Carolina no general law at all was passed, prior to the revolution, declaring who might be slaves—(See Iredell’s statutes, revised by Martin.)
In South Carolina, the only statutes, prior to the revolution, that attempted to designate the slaves, was passed in 1740—after slavery had for a long time existed. And even this statute, in reality, defined nothing; for the whole purport of it was, to declare that all negroes, Indians, mulattoes and mestizoes, except those who were then free, should be slaves. Inasmuch as no prior statute had ever been passed, declaring who should be slaves, all were legally free; and therefore all came within the exception in favor of free persons.15
The same law, in nearly the same words, was passed in Georgia, in 1770.
These were the only general statutes, under which slaves were held in those four States, (Virginia, North Carolina, South Carolina and Georgia,) at the time of the revolution. They would all, for the reasons given, have amounted to nothing, as a foundation for the slavery now existing in those states, even if they had not been specially prohibited by their charters.
Chapter V. The Declaration of Independence.
Admitting, for the sake of the argument, that prior to the revolution, slavery had a constitutional existence, (so far as it is possible that crime can have such an existence,) was it not abolished by the declaration of independence?
The declaration was certainly the constitutional law of this country for certain purposes. For example, it absolved the people from their allegiance to the English crown. It would have been so declared by the judicial tribunals of this country, if an American, during the revolutionary war, or since, had been tried for treason to the crown. If, then, the declaration were the constitutional law of the country for that purpose, was it not also constitutional law for the purpose of recognizing and establishing, as law, the natural and inalienable right of individuals to life, liberty, and the pursuit of happiness? The lawfulness of the act of absolving themselves from their allegiance to the crown, was avowed by the people of the country—and that too in the same instrument that declared the absolution—to rest entirely upon, and to be only a consequence of the natural right of all men to life, liberty, and the pursuit of happiness. If, then, the act of absolution was lawful, does it not necessarily follow that the principles that legalized the act, were also law? And if the country ratified the act of absolution, did they not also necessarily ratify and acknowledge the principles which they declared legalized the act?
It is sufficient for our purpose, if it be admitted that this principle was the law of the country at that particular time, (1776)—even though it had continued to be the law for only a year, or even a day. For if it were the law of the country even for a day, it freed every slave in the country—(if there were, as we say there were not, any legal slaves then in the country.) And the burden would then be upon the slaveholder to show that slavery had since been constitutionally established. And to show this, he must show an express constitutional designation of the particular individuals, who have since been made slaves. Without such particular designation of the individuals to be made slaves, (and not even the present constitutions of the slave States make any such designation,) all constitutional provisions, purporting to authorize slavery, are indefinite, and uncertain in their application, and for that reason void.
But again. The people of this country—in the very instrument by which they first announced their independent political existence, and first asserted their right to establish governments of their own—declared that the natural and inalienable right of all men to life, liberty, and the pursuit of happiness, was a “self-evident truth.”
Now, all “self-evident truths,” except such as may be explicitly, or by necessary implication, denied, (and no government has a right to deny any of them,) enter into, are taken for granted by, und constitute an essential part of all constitutions, compacts, and systems of government whatsoever. Otherwise it would be impossible for any systematic government to be established; for it must obviously be impossible to make an actual enumeration of all the “self-evident truths,” that are to be taken into account in the administration of such a government. This is more especially true of governments founded, like ours, upon contract. It is clearly impossible, in a contract of government, to enumerate all the “self-evident truths” which must be acted upon in the administration of law. And therefore they are all taken for granted unless particular ones be plainly denied.
This principle, that all “self-evident truths,” though not enumerated, make a part of all laws and contracts, unless clearly denied, is not only indispensable to the very existence of civil society, but it is even indispensable to the administration of justice in every individual case or suit, that may arise, out of contract or otherwise, between individuals. It would be impossible for individuals to make contracts at all, if it were necessary for them to enumerate all the “self-evident truths,” that might have a bearing upon their construction before a judicial tribunal. All such truths are therefore taken for granted. And it is the same in all compacts of government, unless particular truths are plainly denied. And governments, no more than individuals, have a right to deny them in any case. To deny, in any case, that “self-evident truths” are a part of the law, is equivalent to asserting that “self-evident falsehood” is law.
If, then, it be a “self-evident truth,” that all men have a natural and inalienable right to life, liberty, and the pursuit of happiness, that truth constitutes a part of all our laws and all our constitutions, unless it have been unequivocally and authoritatively denied.
It will hereafter be shown that this “self-evident truth” has never been denied by the people of this country, in their fundamental constitution, or in any other explicit or authoritative manner. On the contrary, it has been reiterated, by them, annually, daily and hourly, for the last sixty-nine years, in almost every possible way, and in the most solemn possible manner. On the 4th of July, ’76, they collectively asserted it, as their justification and authority for an act the most momentous and responsible of any in the history of the country. And this assertion has never been retracted by us as a people. We have virtually reasserted the same truth in nearly every state constitution since adopted. We have virtually reasserted it in the national constitution. It is a truth that lives on the tongues and in the hearts of all. It is true we have, in our practice, been so unjust as to withhold the benefits of this truth from a certain class of our fellow-men. But even in this respect, this truth has but shared the common fate of other truths. They are generally allowed but a partial application. Still, this truth itself, as a truth, has never been denied by us, as a people, in any authentic form, or otherwise than impliedly by our practice in particular cases. If it have, say when and where. If it have not, it is still law; and courts are bound to administer it, as law, impartially to all.
Our courts would want no other authority than this truth, thus acknowledged, for setting at liberty any individual, other than one having negro blood, whom our governments, state or national, should assume to authorize another individual to enslave. Why then, do they not apply the same law in behalf of the African? Certainly not because it is not as much the law of his case, as of others. But it is simply because they will not. It is because the courts are parties to an understanding, prevailing among the white race, but expressed in no authentic constitutional form, that the negro may be deprived of his rights at the pleasure of avarice and power. And they carry out this unexpressed understanding in defiance of, and suffer it to prevail over, all our constitutional principles of government—all our authentic, avowed, open and fundamental law.
Chapter VI. The State Constitutions of 1789.
Of all the state constitutions, that were in force at the adoption of the constitution of the United States, in 1789, not one of them established, or recognized slavery.
All those parts of the state constitutions, (i. e. of the old thirteen states,) that recognize and attempt to sanction slavery, have been inserted, by amendments, since the adoption of the constitution of the United States.
All the states, except Rhode Island and Connecticut, formed constitutions prior to 1789. Those two states went on, beyond this period, under their old charters.16
The eleven constitutions formed, were all democratic in their general character. The most of them eminently so. They generally recognized, in some form or other, the natural rights of men, as one of the fundamental principles of the government. Several of them asserted these rights in the most emphatic and authoritative manner. Most or all of them had also specific provisions incompatible with slavery. Not one of them had any specific recognition of the existence of slavery. Not one of them granted any specific authority for its continuance.
The only provisions or words in any of them, that could be claimed by anybody as recognitions of slavery, are the following, viz.:
1. The use of the words “our negroes” in the preamble to the constitution of Virginia.
2. The mention of “slaves” in the preamble to the constitution of Pennsylvania.
3. The provisions, in some of the constitutions, for continuing in force the laws that had previously been “in force” in the colonies, except when altered by, or incompatible with the new constitution.
4. The use, in several of the constitutions, of the words “free” and “freemen.”
As each of these terms and clauses may be claimed by some persons as recognitions of slavery, they are worthy of particular notice.
1. The preamble to the frame of government of the constitution of Virginia speaks of negroes in this connexion, to wit: It charges George the Third, among other things, with “prompting our negroes to rise in arms among us, those very negroes, whom, by an inhuman use of his negative, he hath refused us permission to exclude by law.”
Here is no assertion that these “negroes” were slaves; but only that they were a class of people whom the Virginians did not wish to have in the state, in any capacity—whom they wished “to exclude by law.” The language, considered as legal language, no more implies that they were slaves, than the charge of having prompted “our women, children, farmers, mechanics, or our people with red hair, or our people with blue eyes, or our Dutchmen, or our Irishmen to rise in arms among us,” would have implied that those portions of the people of Virginia were slaves. And especially when it is considered that slavery had had no prior legal existence, this reference to “negroes” authorizes no legal inference whatever in regard to slavery.
The rest of the Virginia constitution is eminently democratic. The bill of rights declares “that all men are by nature equally free and independent, and have certain inherent rights,” * * “namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”
2. The preamble to the Pennsylvania constitution used the word “slaves” in this connexion. It recited that the king of Great Britain had employed against the inhabitants of that commonwealth, “foreign mercenaries, savages and slaves.”
This is no acknowledgment that they themselves had any slaves of their own; much less that they were going to continue their slavery; for the constitution contained provisions plainly incompatible with that. Such, for instance, is the following, which constitutes the first article of the “Declaration of Rights of the Inhabitants,” (i. e. of all the inhabitants) “of the state of Pennsylvania.”
“1. That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, among which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.”
The 46th section of the frame of government is in these words.
“The Declaration of Rights is hereby declared to be a part of the constitution of this commonwealth, and ought never to be violated on any pretence whatever.”
Slavery was clearly impossible under these two constitutional provisions, to say nothing of others.
3. Several of the constitutions provide that all the laws of the colonies, previously “in force” should continue in force until repealed, unless repugnant to some of the principles of the constitutions themselves.
Maryland, New York, New Jersey, South Carolina, and perhaps one or two others had provisions of this character. North Carolina had none, Georgia none, Virginia none. The slave laws of these three latter states, then, necessarily fell to the ground on this change of government.
Maryland, New York, New Jersey and South Carolina had acts upon their statute books, assuming the existence of slavery, and pretending to legislate in regard to it; and it may perhaps be argued that those laws were continued in force under the provision referred to. But those acts do not come within the above description of “laws in force”—and for this reason, viz., the acts were originally unconstitutional and void, as being against the charters, under which they were passed; and therefore never had been legally “in force,” however they might have been actually carried into execution as a matter of might, or of pretended law, by the white race.
This objection applies to the slave acts of all the colonies None of them could be continued under this provision.—None of them, legally speaking, were “laws in force.”
But in particular states there were still other reasons against the colonial slave acts being valid under the new constitutions. For instance: South Carolina had no statute (as has before been mentioned) that designated her slaves with such particularity as to distinguish them from free persons; and for that reason none of her slave statutes were legally “in force.”
New Jersey also was in the same situation. She had slave statutes; but none designating the slaves so as to distinguish them from the rest of her population. She had also one or more specific provisions in her constitution incompatible with slavery, to wit: “That the common law of England * * * * * shall remain in force, until altered by a future law of the legislature; such parts only as are repugnant to the rights and privileges contained in this charter.” (Sec. 22.)
Maryland had also, in her new constitution, a specific provision incompatible with the acts on her colonial statute book in regard to slavery, to wit:
“Sec. 3. That the inhabitants”—mark the word, for it includes all the inhabitants—“that the inhabitants of Maryland are entitled to the common law of England, and the trial by jury, according to the course of that law,” &c.
This guaranty, of “the common law of England” to all “the inhabitants of Maryland,” without discrimination, is incompatible with any slave acts that existed on the statute book; and the latter would therefore have become void under the constitution, even if they had not been previously void under the colonial charter.
4. Several of these state constitutions have used the words “free” and “freemen.”
For instance: That of South Carolina provided, (Sec. 13.) that the electors of that state should be “free white men.” That of Georgia (Art. 11,) and that of North Carolina (Art. 40,) use the term “free citizen.” That of Pennsylvania (Sec. 42,) has the term “free denizen.”
