that white man is regarded as unnatural, mean, and cruel, who does not, if his ability permit, secure for his colored children. emancipation and some pecuniary provision. Colored children are not less numerous in the United States; but here conventional decorum forbids the white father to recognize his colored offspring at all, or to make any provision for them: they are still held and sold as slaves, among which unfortunate class may be found the descendants of more than one signer of the Declaration of Independence, patriot of the Revolution, and leading politician and presidential candidate of our own day. To what shall we ascribe this strange and most disgraceful difference? To what, if not to that narrow spirit of puritanic asceticism, that insolent Jewish bigotry, derived from the superstitious study of the Old Testament, with which the whole British race is so thoroughly imbued? The careful student of our history will discover this spirit of religious bigotry and asceticism as rampant in the southern colonies as in those of New England. Moses was good authority in all the English colonies for prohibiting intermarriage with negroes and Indians; and for denouncing the intermixture of races as unnatural and wicked. But no law could control the appetite of the planters, or prevent that intermixture which inevitably takes place, whenever two races are brought into contact, especially if one race be held in slavery. That austere morality (pretending to be religious,) for which the United States are distinguished above all nations on the face of the earth, has been obliged, in this case, as in others, to content itself, in defect of conformity to its rules, with cruel grimace, and a lie acted out. Hypocrisy, it is said, is the tribute which vice pays to virtue. Of that sort of tribute the religious treasuries of our country are full. The virtuous man, -southern churchmember, or peradventure minister of the gospel,-expiates his peccadilloes with his female slaves, by looking on his own. children with cold glances, in which no recognition dwells; as a further proof of his austere morals, occasion offering, he sells them at auction!

We have dwelt thus long on the slave statutes of Virginia, and have carefully traced them from their commencement to their final development, because upon these statutes the practice, and finally the enactments, of all the other southern colonies, were modelled.

Slavery had existed in Maryland from its first settlement;

but no statute appears to have defined its nature or designated the parties subject to it, till 1715, by which time negroes held in bondage composed a fifth part of the population. In that year, upon occasion of the restoration of the government to the Calvert family, the laws of Maryland were revised, and the new code provided," that all negroes and other slaves, already imported or hereafter to be imported into this province, and all children now born or hereafter to be born of such negroes and slaves, shall be slaves during their natural lives." Upon this statute rest all the claims of the slave-holding system of Maryland to a legal foundation.

The "grand model," the first proprietary constitution of Carolina, the production of the celebrated Locke, contained the following clause: "Every freeman of Carolina shall have absolute power and authority over his negro slaves, of what opinion and religion soever." But "the grand model," in compliance with the repeated and earnest requests of the colonists, was abrogated in 1693, and for nineteen years the system of slavery in South Carolina remained without any legal basis but that furnished by the mistaken notions of the colonists as to the English law. The assembly, however, at length thought it necessary to provide some statute authority of their own for holding two thirds of the population in servitude. An act for that purpose, passed in 1712, provided, "that all negroes, mulattoes, mestizos, or Indians, which, at any time heretofore were sold, or now are held or taken to be, or hereafter shall be bought and sold for slaves, are hereby declared slaves, to all intents and purposes;" with exceptions, however, in favor of those who have been or shall be, "for some particular merit, made or declared free," and also of such "as can prove that they ought not to be sold as slaves." This most extraordinary piece of legislation, worthy of a South Carolina assembly, was reenacted in 1722, and again in 1735. By the act of 1740, it was modified as follows: "All negroes, Indians, mulattoes, and mustazoes, (free Indians in amity with this government, and negroes, mulattoes, and mustazoes who are now free, excepted,) who now are or shall hereafter be in this. province, and all their issue and offspring, born or to be born, shall be, and they are hereby declared to be and remain for ever hereafter, absolute slaves, and shall follow the condition of the mother and shall be deemed in law chattels personal." In all claims of freedom, the burden of proof was to be on the claimant, and it was to be always presumed that every negro, 11

NO. II.

Indian, mulatto, and mestizo is a slave, unless the contrary appear. This act, which forms the legal basis, such as it is, of the existing slave-holding system of South Carolina, was preceded and followed by all the customary barbarous enactments of slave codes. Yet the South Carolina assembly seem to have supposed themselves to be legislating within the limits of the English law; for at the very same session at which the slave act of 1712 was enacted, the common law of England was declared to be in force in South Carolina. In North Carolina, the slaves were already a third part of the population; but no act of that colony seems ever to have given a legislative basis to the authority of the master, which rested, and still rests, upon mere custom, and the old imaginary right, under the English common law, to reduce infidels and their descendants to servitude. So far as relates to the slavery of Indians, the Carolinians had been from the beginning notorious sinners. They had an irresistible propensity to kidnap the unhappy natives, and reduce them to slavery. One chief ground of quarrel with the proprietors grew out of efforts made by them to put a stop to this iniquity.

Georgia, it is well known, was originally intended to be a free colony. During the eighteen years that its affairs were administered by the trustees who had planted it, slavery was strictly prohibited. During this whole period, the vagabonds from the streets of London, the principal English settlers in Georgia, had raised a loud outcry against this prohibition, ascribing to it the poverty and slow progress of the colony, the natural result of their own idleness and incapacity.

The famous Whitfield had pleaded with the trustees in favor of slavery, under the old slave-trading pretence of propagating, by that means, the Christian religion. The Moravians settled in Georgia long had scruples; but they were reässured by the heads of their sect in Germany: "If you take slaves in faith, and with the intent of conducting them to Christ, the action will not be a sin, but may prove a benediction." Thus, as usual, the religious sentiment and its most disinterested votaries were made the tools of worldly selfishness, for the enslavement and plunder of mankind.

The amiable Berkeley, afterwards bishop of Cloyne, had already served as a similar cats-paw. In spite of the enactments of the colonial legislatures to the contrary, the idea still remained strongly impressed on the colonial mind, that Christians could not be held in servitude, and many mas

ters refused to allow their slaves to be instructed or baptized, lest thereby they might become free. During Berkeley's residence in America for the purpose of founding a missionary college in Bermuda, his attention was attracted to the religious condition of the slaves. To get rid of the opposition of the masters to their religious instruction, he applied for aid to Yorke and Talbot, the one attorney-general, the other solicitor-general of England. These learned lawyers, feed for that purpose by the planters, had already certified that negroes might be held as slaves even in England, a doctrine afterwards set aside in the famous case of Somerset, -and now at Berkeley's request, they "charitably sent an opinion signed by their own hands," that the conversion and baptism of negroes did not make them free. This opinion Berkeley caused to be published in Rhode Island, where he resided, and to be disseminated through the colonies.

The poor settlers of Georgia, with fatal ignorance of their true interests, influenced by some vague hopes of wealth, or the pleasure of seeing beneath them a class more miserable and degraded than themselves, had raised, as we have seen, a clamor for slaves; and one of the first acts of the new gov ernment, which succeeded to the authority of the trustees, was, the repeal of the prohibition of slavery. It was not, however, till thirteen years after, that the legislature of Georgia sustained what they supposed to be the common law on this subject, by positive enactment. In 1765, they copied the South Carolina act of 1740, excepting, however, from the stern doom of slavery, not only such negroes, mulattoes, mestizos, and Indians as already were free, but such also as might afterwards become free; thus acknowledging a possibility of future manumissions, which the South Carolina statute seemed to cut off.

Such is the legislation, and all the legislation, by which it can be pretended that slavery, during the colonial times, acquired in our southern states the character and the dignity of a Legal Institution. Was this legislation valid? Could it have the effect to legalize slavery in America?

As our state legislatures are now restricted in their powers by constitutions, state and federal, so the colonial legislatures

*Both afterwards Chancellors; the one as Lord Hardwicke, the other as Lord Talbot.

were restricted in their powers by the law of England. Contrary to the great principles of that law they could not make any acts. This limitation was expressly declared in the colonial charters. Thus, for instance, the charter of Maryland provided, that all laws to be enacted by the provincial legisla ture "be consonant to reason, and be not repugnant or contrary, but (so far as conveniently may be,) agreeable to the laws, statutes, customs, and rights of this our kingdom of England." Similar provisions are to be found in the charters of Virginia, Carolina, and Georgia. It is true, that these charters, except that of Maryland, were surrendered or taken away, previous to the Revolution. But this proceeding, so far from extending the authority of the colonial legislatures, operated the other way; conformity to the law of England being still more strictly demanded in the royal than in the chartered provinces. This doctrine of the restricted powers of the colonial legislatures was perfectly well established, and has been repeatedly recognized by the Supreme Court of the United States, as well as by the state courts. No lawyer would pretend that any colonial legislature had power, for instance, to abolish trial by jury. The limits of colonial legislative authority may be well exemplified by a transaction in South Carolina. That province was violently distracted by disputes between churchmen and dissenters. In 1704, the churchmen, happening to have a majority of one in the assembly, passed an act, by the help of a good quantity of good liquor, that none but churchmen should vote. This act was approved by the proprietaries; and as the charter of Carolina reserved no negative to the crown, it thus obtained the form of law. The dissenters, indignant at this outrage, sent an agent to England, on whose petition the House of Lords, swayed by the eloquence of Somers, pronounced this disfranchising act unreasonable and contrary to the laws of England; while Queen Anne, by the advice of the attorney and solicitorgenerals, issued a proclamation declaring the obnoxious act void, because it violated that clause in the charter which required the laws of the colony not to contradict those of England.

If the colonial legislatures could not abolish trial by jury; if, after the toleration of all Protestant sects had become the law of England, they had no power to enact laws disfranchising any Protestant- had they any power to establish slavery?