« AnkstesnisTęsti »
by express grant, as in the charter colonies, or by the governor's commission and instructions, as in the crown colonies, were mere creatures of the king, unable to go boyond the powers expressly conferred upon them in the instruments by which they were authorized. And even by the second theory, allowing that legislation by an assembly was not a mere grace from the king, but a right of the colonists, still the king's assent was essential to legislation, and no acts could have any binding force to the enactment of which he had not expressly or implicitly consented. We shall therefore be willing to admit, for the purpose of this argument, what our reviewer assumes as his foundation doctrine, but what certainly never was true, - since Parliament claimed and was admitted to be the supreme legislature of the British dominions, and down to the Revolution exercised the right in unnumbered instances of interfering with the internal polity of the colonies, -" that with the concurrence of the king, the assembly of a royal province was as completely unlimited in its powers of legislation over all matters of internal polity as parliament itself was in England.” We will admit, for the purpose of the argument, that the king and the colonial assemblies might have concurred in setting the law of England at defiance by the legal establishment of slavery in the colonies. But in point of fact we allege and will show that the king never did so concur; and, therefore, that any such attempted legislation on the part of the colonies was merely void.
It is to be observed that the consent of the king to colonial acts of legislation was not expressly and separately given, as it was to acts of parliament. He acted in this matter by his agent, the royal governor, whose assent to any act was considered as binding on the king till by special proclamation he declared his dissent. But to bind the king, that assent by the governor must have been given in conformity to his commission and instructions, his only authority for giving it at all; and by those commissions and instructions the governor and assembly were only authorized to enact laws not "repugnant but as near as may be agreeable to the laws and statutes of our kingdom of Great Britain.” Such are the terms of the commission printed in Stokes; and we challenge the proof that any royal governor ever received a commission which did not contain in substance the same limitation.
And in accordance with this view of the case are all the authorities. Thus Blackstone (1 Comm., 108,) speaks of “provincial establishments," meaning thereby crown colonies, “ the constitutions of which depend on the respective commissions issued by the crown to the governors, and the instructions which usually accompany those commissions ; under the authority of which provisional assemblies are constituted with the power of making local ordinances not repugnant to the law of England.”
So Story, in his account of these same governments, (1 Comm., 143,) says, “ The commissions also contained authority to convene a general assembly of representatives of the freeholders and planters," " which assemblies had the power of making local laws and ordinances not repugnant to the laws of England, but as near as may be agreeable thereto.”
It is a little singular that our reviewer, who cites these very pages of Blackstone and Story for another purpose, should not have seen the bearing of these passages on his argument. He endeavours, indeed, to throw off this unwelcome impediment of the royal commission, by alleginy that “such a commission cannot be deemed a constitution, because a constitution which exists only at the pleasure of the ruler is really no constitution at all.” The constitution of Massachusetts exists only at the pleasure of the ruler, that is, the sovereign people of the Commonwealth, who made it. As often “as suits their whim” they make, revoke, and annul "every clause, article, and thing therein contained.” Yet for all that it is not the less a constitution, restrictive of the powers of the state government. We must be permitted, therefore, still to hold, with Blackstone and Story, that these commissions were the fundamental constitntions of the provinces,” and that all acts of the colonial assemblies passed in defiance of the restrictions which they imposed, lacked the essential ingredient of the royal consent, and, in a legal point of view, were absolutely nugatory. To this very point of the legal futility of any attempt to legalize slavery in the colonies, contrary to English law, we shall quote the authority of Lord Hardwicke. Lord Hardwicke was one of those learned lawyers who maintained, notwithstanding Holt's opinion to the contrary, that negroes might be held as slaves even in England, to which effect, when attorney-general in 1719, he had given a written opinion in conjunction with Talbot, then solicitor-general. When sitting twenty years afterwards as Chancellor, Lo'd Hardwicke had occasion to refer to this opinion, which he still maintained to be good law, and he disapproved of Lord Holt's doctrine that the moment a slave sets foot in England he becomes free, by declaring that no reason could be found “why they should not be equally so when they set foot in Jamaica, or any other English plantation. All our colonies are subject to the law of England, although as to some purposes they have laws of their own." Not, however, as Lord Hardwicke implies, for the purpose of introducing a condition of slavery, or any thing else, which the law of England did not allow, and thus far, at least, the doctrine of this case is good law. (See Ambler, 76. Pearne vs. Lisle.)
So much for the pretended legalization of slavery in the crown colonies by statute. But even independent of any statute, our reviewer maintains that slavery might become legalized in those colonies by custom.
Now, admitting that the modern common law consists, to a great extent, of modern customs sanctioned by the courts, and admitting that the colonial courts had the same right of giving the character of law to colonial customs, yet it was not every custom, good, bad, or indifferent, that was capable of such a sanction. It must have been a custom good in itself, tending to promote the ends of justice, and not in contradiction to any established right previously existing. Will any body pretend that slavery was such a custom ? The courts were under the same restrictions as the assemblies. What the assemblies could not do directly, the courts could not do indirectly. Nor does there exist the slightest evidence that any colonial court ever pretended to sustain slavery on this ground of custom. On the contrary, both courts and assemblies acted on the presumption that there was nothing in the English law which made negro slavery illegal, and that the colonial statutes authorizing it were therefore binding. They acted under a misapprehension cf the English law; but their mistake on this point cannot affect any body's legal rights.
It was not the less true that negro slavery was not allowed by the laws of England. The decision of this point in Somerset's case set free not less than fourteen or fifteen thousand negroes held in bondage in that country—so we are told in the report of the case; and so far as the mere matter of legal right was concerned, it established the freedom, also, of every slave in the colonies; and this inevitable consequence of this decision had been foretold, as we have seen, by Lord Hardwicke, twenty years or more before.
At the time, then, when the first state constitutions were framed, slavery existed in the states not as a vested legal right,
but as a mere wrong and usurpation. The framers of those constitutions did not attempt to confer upon it any new character of right or legality. They left it exactly where it stood before, avoiding, indeed, all direct reference to it. But this is a point which we have fully handled in a former article, and with which it is not necessary again to weary our readers.
We will only add, that this matter of the legality of slavery is one we are glad to see discussed, because we feel satisfied that the more it is discussed, the plainer it will become that the only law upon which slavery rests is the lynch law of force and violence. We deny altogether that the states of this union have or ever had any power to legislate a part of their inhabitants into slavery. Though they claim to be sovereign and independent, they have been at all times, and still are, greatly limited and restrained in their legislative powers. While colonies they were restricted, as we have just proved, from making laws repugnant to those of England, and of course from subjecting any of the king's natural born subjects to slavery. There was, indeed, a very important distinction on this point, too apt to be overlooked in these discussions. Whatever the condition might legally be of those unfortunate aliens, purchased in Africa as slaves and brought to America and sold to the planters; suppose, even, that it might have been consonant to English law to retain them as servants for life, as Blackstone seems to have imagined; yet the case was very different as to their children born in the colonies, who were in every respect natural born subjects of the king of England, and entitled to all the rights of Englishmen, which the colonial legislatures had no power to invade. These alien Africans, be it observed, would furnish ample material for the colonial state laws, and all constitutional compromises to act upon, without involving any native born Americans in the fate of slavery.
Before the colonies escaped from this restraint of English laws, they had already subjected themselves to a new one by entering into a confederacy against Great Britain, of which the avowed object was, to maintain the rights of human nature. “Let it be reinembered, finally,” says Congress, in its address to the states, on the termination of the Revolutionary War, that it has ever been the pride and boast of America, that the rights for which she contended were the rights of human nature."
When the colonists set forth in their Declaration of Inde
pendence, as the justification and basis of the stand they had taken, the natural right of all men to life, liberty, and the pursuit of happiness, they must be esteemed as pledging themselves to the world and to each other for the recognition and maintenance of that right. Nor was this declaration the mere act of the Continental Congress, whose power might be disputed; for it was distinctly and solemnly ratified, adopted, and confirmed by every individual state in the union. From that moment, then, it was a solemn pledge on the part of all the states, and a tacit condition of the union, that slavery should be done away with as soon as possible. By adopting, two years before, the non-importation agreement, known as the American Association, the states had already pledged themselves to import no more slaves; a pledge from which they were never released, though the Carolinas and Georgia chose afterwards to violate it, and to insist on a constitutional permission to continue that violation for twenty years. The same understanding as to the abolition of slavery prevailed when the federal constitution was adopted; it was regarded as a transitory evil, to be speedily removed, and the greatest care was taken not to mention slavery by name, or to recognize in that instrument any such idea as property in man.
The northern states have waited a great while, patiently, for their southern neighbours to carry out their agreement. If the conclusion should be arrived at that the southern states are unable or unwilling to redeem their pledge, certainly the least we of the North can do, is, to proclaim, everywhere, our conviction of the utter illegality of this accursed institution of slavery, and of the bad faith of the South in prolonging its existence.
Art. III.- A Treatise of the Law of Evidence. By SIMON
GREENLEAF, LL. D., Royall Professor of Law in Harvard University. Boston. 1846.
1846. 2 Vols. 8vo.
A NEW work on the law of Evidence, from the learned and distinguished Royall Professor of Law in Harvard University, seems naturally to invite attention, as well from the unquestioned ability of the author, as from the importance of the subject. Of the work it may be observed, that it is a clear, concise, and satisfactory exposition of the law, with the reasons