First. When the federal government was formed, all the family of European nations was slaveholding; and they all alike held the Africans as unquestioned and legitimate subjects of bondage. The slave trade was held by publick law as legitimate as the trade in corn. It was the subject of treaty stipulations between the several powers; and slave trading companies were formally chartered and protected by all the leading powers. Slaves were declared by the English judges to be merchandise.[45] They were universally held legal prize of war when taken on the high seas.[46] They were recognized subjects of reclamation in forming and executing treaties. Thus, not to go outside of our own history, we find General Washington, in 1783, by order of Congress, remonstrating with the British commander evacuating New York city, because certain officers of the retiring forces carried away with them the fugitive slaves of American citizens; and the latter was compelled to surrender the attempt, as an unauthorized spoliation of property.[47] In 1788, the Government of the United States claimed of Spain the return of fugitive slaves from the Spanish colony of Florida;[48] and our government promised, in return, the rendition of Spanish slaves found in the United States. It is well known that the treaty of the United States with Great Britain, negotiated by Mr. Jay, and ratified by President Washington, and the treaty of Ghent, in 1815, both secured indemnities for slaves of American citizens abducted during the two wars; thus treating them as property under the protection of national law in America, and of the law of nations. In face of this array of facts, we boldly ask, with what face it can be asserted that slavery was not recognized by international law? Whether it is not as consonant with the law of nature as of nations, will appear at another place.
Second. During the whole planting and growth of the British colonies in America, and at the time when they passed from that government into the federal Union, the Empire of Great Britain was slaveholding in all its parts. The obvious consequence is, that the government formed by the thirteen colonies in a part of the territory of that empire, inherited the legal condition of their mother, in this particular. In seceding from that empire, they brought away the slaveholding status; and this subsisted ipso facto, except where it was changed by the lex loci. All the original territory of the American Union was slave territory, as was that subsequently acquired from France. Hence slave owners of course possessed their rights in all this territory, unless they were expressly restrained by special legislation of the States, sovereign each one within its own borders. The consequence cannot be denied, if the premise be admitted. Let the reader consider the following evidences of it:
In 1772, only four years before the Declaration of Independence, Lord Mansfield, in the Court of King's Bench, decided the famous Somersett case, by which, it has usually been asserted, slavery was forever terminated in England, and the principle was settled that this relation was inconsistent with her free laws. Mr. Stewart, a citizen of Virginia, going to England on business, carried with him a negro slave, Somersett, whom he had bought in Jamaica. After a time he indicated a purpose to return home, carrying his slave with him; whereupon the negro absconded. His master had him seized, and placed on board a ship in the Thames, to be forcibly carried to Jamaica and sold. The negro then sued out an application for habeas corpus, which being argued at a previous term, was finally decided by Lord Mansfield, at the Trinity term, 1772. The true extent of that decision will hereafter be shown. Our purpose here is to cite the admissions made by the court, as to the existing state of English laws.[49] It is noticeable, that this tribunal exhibited a great reluctance to decide the case, declaring that it was attended with great, and almost inextricable difficulties, and that Lord Mansfield proposed to evade a decision by recommending a compromise between Mr. Stewart and the black. This not being done, the court stated that there were then fifteen thousand negro slaves in England, worth not less than seven hundred thousand pounds sterling. It also recognized the decisions of Sir Philip Yorke, and Lord Chief Justice Talbot, confirmed in 1749, by that of the chancellor, Lord Hardewicke, that if a slave, brought by his master to England, should be detained from him, an action of trover for his recovery would lie; and the decision of Lord Talbot, that a negro slave brought by his master to England from a colony, or baptized by the clergy, did not thereby gain his liberty; and the opinion of the latter that while the Statute of Tenures had abolished manorial villeinage, a white man might still become a villein in gross, by the laws of England.[50] The court declared farther, that the slave property of a debtor was undoubtedly liable to action in the English courts, to recover the sums due a creditor. But after all these admissions, which clearly amount to a recognition of the fact that England itself was then by law a slaveholding country, Lord Mansfield proceeds to settle the principle (the only one, as he carefully declares, to which his decision extends) that the power of the writ of habeas corpus, not being limited to free persons by express statute, should, as he thinks, in England be extended to slaves, when they invoke it, and should be held to override the rights of the master under the laws; because those rights were now regarded as odious and excessive by current publick opinion. Such, and no more, is the extent of this much be praised, and much misunderstood decision! It is plain to common sense, that if it is not an instance of the judicial abuse of making, instead of expounding, law, it only establishes the fact that the laws of slaveholding England were then in a ridiculously inconsistent state.
In fact, not only were there then fifteen thousand negro slaves in England, but they were publickly bought and sold in the markets of London. The prevalence of slavery is attested by another species of historical evidence, very different from that of learned judges, but at least as authentick. The pictures by which Hogarth has fixed the follies and peculiarities of fashionable life on his immortal canvass, frequently contain the African valet; showing that the possession of this species of servants was demanded by high life. From the Normans, those noted slaveholders, to 1775, no statute had been passed upon the subject of personal slavery.[51] There then existed, in the northern part of the kingdom of Great Britain, from thirty thousand to forty thousand persons, of whom the Parliament said, "Many colliers, coal-heavers, and salters, are in a state of slavery, or bondage, bound to the collieries or salt-works where they work, for life, transferable with the collieries and salt-works, when their original masters have no use for them."[52] Again in 1799, they declare that "many colliers and coal-heavers still continue in a state of bondage."
Thus it appears that England was itself slave territory, at the time the thirteen colonies, declaring their independence, brought away her laws and institutions. But our argument of this fact is ex abundantia; it may be waived, and still our conclusion holds, because, by existing laws, all the plantations and colonies of England in America were then, yet more indisputably, slave territory. No stronger proof of this proposition can be imagined, than the manner in which slavery was planted in these communities. Not only were all the thirteen colonies, and all the West India plantations, slaveholding; but it required no statute, either of Parliament or of colonial legislature, to introduce African slavery, or to establish the right of the owner, because it was already established by imperial law and usage. The first negroes were bought in Virginia in 1620; the first act touching their bondage was passed by the Burgesses in 1659; and this does not enact their slavery, but recognizes it as existing. It was not until 1670,[53] that any law was passed which expressly enacted their slavery. But for fifty years they had been unquestioned slaves, had paid impost duty as such, had been bought and sold, had been bequeathed, had been subject of suits. By what law? Obviously by the general law of the British Empire, and of nations. The manner of the introduction of slavery into Massachusetts was the same. "The involuntary servitude of Indians and negroes in the several colonies originated under a law not promulgated by legislation, and rested upon prevalent views of universal jurisprudence, or the law of nations, supported by the express or implied authority of the Home Government."[54] But the "canny" Puritans, more careful than the Virginians to fortify their slave property, enacted slavery of both classes, in their earliest codes of laws, 1641 and 1660.[55]
That African slavery was the universal law of the British colonial empire, is equally plain from the facts already given concerning the legalizing of the slave trade. The treaty of Utrecht secured to Britain a monopoly of that traffick. The Parliament chartered the African Company, with the right to trade in slaves to all the colonies.