strength of his understanding." Is it too much to hope, that we shall yet have American judges, with hearts and understandings strong enough to draw up out of that same deep well the twin secret, that there is not, and never was, any legal slavery in America? It is not strength of understanding that has failed us. Have we not had on the bench of the United States Supreme Court a Jay, a Wilson, a Marshall, a Story? What has been lacking is heart, conscience, courage; more than all, the surrounding support of an enlightened and humane public opinion, to sustain our judges in looking this lurking devil of slavery in the face. No court of justice in the United States has ever yet dared do it, lest being called on to decide against the legality of slavery, they might be called upon, in so doing, to set at defiance a conglomeration of interests and prejudices which they have not had courage to brave, which no prudent court would venture to brave. What has been wanting, not less than a fearless court, a court daring enough to face, in the cause of justice and right, the ferocious prejudices of a ferocious nation-has been, a learned, independent, fearless bar. The court alone, unaided by the bar, is incapable of administering justice. Points must first be presented, before they can be decided; and how much depends on the manner and the medium of their presentation! Would the English law of treason ever have been stripped of so many of its terrors, and reduced so much within the limits of justice and moderation, but for the earnest struggles of an Erskine and a Curran ? Had O'Connell been an ordinary lawyer, or an ordinary culprit, would the English House of Lords ever have seen those flaws in his indictment which the Irish judges had overlooked?

No counsel has ever yet been retained for the slaves; no body of influential friends has ever appeared, to impress upon the judges the necessity of serious investigation, and to assure them of support in sustaining the right. The case has gone by default; rather, it has never yet been entered in court.

We proceed to give a brief statement of the grounds upon which the assumed legality of slavery rests.

Slavery in the Middle Ages existed in England under two forms. Villeins in gross were slaves, substantially the same as ours, transferable from master to master, like any other chattel. Villeins regardant were serfs, attached to the soil, inseparable from it, and transferable only with it. These same two forms of slavery may still be seen in Hungary and

Russia. Villeinage was hereditary;- the villeins being the descendants of the ancient Britons and Saxons, held in servitude from a time whereof the memory of man ran not to the contrary.

Previous to the discovery of America, or shortly after that period, English villeinage in gross had almost ceased to exist. So late as the reign of Elizabeth, there only remained a few villeins regardant, in some obscure corners. The lawyers and the clergy, in whom the principal intelligence of that age was vested, had both greatly contributed to this result. The English common law courts refused to recognize the doctrine of the civil law that favorite doctrine of all slave-holding communities that the children of female slaves inherit from the mother the condition of slavery. They held, on the contrary, that the child followed the condition of the father, a doctrine which gave freedom to great numbers; for, in all slave-holding communities, the masters esteem it a part of their right to use the slave women as concubines. In all questions touching villeinage, the English common law courts made it a point to lean in favor of freedom. All men were supposed to be free, and the burden of proof lay on the claimant. The clergy had taken up the moral and religious aspects of the case. They denounced it as a scandalous and outrageous thing, for one Christian to hold another in slavery; and their preaching on this point had been so successful, that it had come to be considered a settled matter, not in England only, but throughout western Europe, that no Christian ought to be held as a slave.

With the customary narrowness of that age, this security from slavery was not thought to extend to infidels or pagans. While the emancipation of serfs was going on, black slaves, brought by the Portuguese from the coast of Guinea, became common in the south of Europe, and a few found their way to England. The newly-discovered coasts of America were also visited by kidnappers. Few, if any, of the early voyagers scrupled to seize the natives, and to carry them home as slaves. Sir Ferdinando Gorges, so active and so conspicuous in the early settlement of New England, had a number of these captured natives, whom he claimed as his property, kept under restraint, and employed as guides and pilots. The Mosaic law, then recently made familiar by the English translation of the Bible, and considered high authority on all questions of right, seemed to countenance this distinction between Christians and

infidels. The Jews, according to the Mosaic code, could hold their brethren as servants for a period of seven years only, or at the utmost, till the next Jubilee; for it is not very easy to reconcile the different provisions on this subject, in Exodus and Leviticus. But of "the heathen round about," they might buy "bondmen, as an inheritance for ever." The practice of the early English settlers in America, and their ideas of the English law on the subject, corresponded exactly with these Jewish provisions. They took with them, or caused to be sent out, a large number of indented Christian servants, whose period of bondage was limited to seven years, and who constituted a distinct class in the community till after the Revolution. But while the servitude of Christians was thus limited, the colonists supposed themselves justified in holding negroes and Indians as slaves for life. When the first cargo of African slaves arrived in James river, they were sold and held under what was supposed to be the English common law. They continued to be imported in small numbers from time to time; but more than forty years elapsed before we find any mention of slaves in the Virginia statutes. It was not imag ined that any local legislation was necessary, to give the masters a life-property in these black servants and their posterity. Massachusetts was the first colony to legislate upon this subject. The "Body of Liberties," or "Fundamentals," as they were called, of which a complete copy has lately been brought to light, and published in the Massachusetts Historical Collections,-were first promulgated in 1641. That code contains the following provision: "There shall never be any bond slavery, villeinage, nor captivity among us, unless it be lawful captives taken in just wars, and such strangers as willingly sell themselves, or are sold, unto us." But in thus giving an express sanction to negro and Indian slavery, the freemen of Massachusetts did not suppose themselves to be running at all counter to the law of England, to which, by their charter, they were bound to conform. On the contrary, they supposed themselves to be conforming as well to the law of England, as to "the law of God, established in Israel." This Massachusetts law, it will be perceived, not only sanctions slavery, but also the slave-trade. Bancroft, always too much a panegyrist or an apologist to be implicitly relied on, has undertaken to claim for Massachusetts the honor of having denounced, at that early day, as "malefactors and murderers," those "who sailed to Guinea, to trade for negroes;

a

claim founded upon misapprehension of a passage in Winthrop's Journal. It appears, on the contrary, from other pas sages in Winthrop, that "the trade to Guinea for negroes" was recognized as a just and lawful traffic. New England vessels, after carrying cargoes of staves to Madeira, were accustomed to sail to Guinea for slaves, who generally were carried to Barbadoes, or the other English settlements in the West Indies, there being little or no demand for them at Boston. In the particular case on which Bancroft relies, instead of buying negroes, in the regular course of the Guinea trade, the Boston crew had joined with some Londoners already on the coast, and, on pretence of some quarrel with the natives, had landed "a murderer," a murderer," — the expressive name of a small piece of cannon, attacked a negro village on a Sunday, killed many of the inhabitants, and made a few prisoners; of whom two boys fell to the share of the Bostonians. A violent quarrel between the master, mate, and owners, as to the mutual settlement of their accounts, brought out the whole history of the voyage before the magistrates, one of whom presented a petition to the General Court, charging the master and mate, not with having "sailed for Guinea to trade for negroes," as Bancroft represents it, but with the threefold offence of murder, manstealing, and Sabbath-breaking, the first two capital, by the fundamental laws of the colony, and all three "capital, by the laws of God." It was right enough to purchase slaves, but wrong to steal them, especially on a Sunday, and to commit murder in doing so. The kidnapped negroes were ordered to be sent back; but no other punishment was inflicted, the court doubting their authority to punish crimes committed on the coast of Africa.

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The honor of having made the first American protest against negro slavery really belongs to those arch-heretics, Roger Williams and Samuel Gorton, and their followers, settled at Providence and Warwich. In 1650, these exiles from Massachusetts had been accused by a Massachusetts spy of crying out against the reality of witchcraft, and of maintaining that most heretical and atheistic doctrine, "that there were no other witches upon earth, nor devils, except the ministers of Massachusetts and such as they." In 1652, these same free thinkers enacted a law, placing "black mankind" on the same level, with regard to limitation of service, as white servants; and absolutely prohibiting perpetual slavery within

their territories. Unfortunately for the honor of Rhode Island, this law presently fell into abeyance. In his old age, even Williams himself became a slave-holder, having received an Indian boy for his share of the spoils of Philip's war, during which contest he held a commission as captain. Perhaps, however, he only claimed to hold the boy as an indented servant.

It was not till cases arose for which the English common law, as the colonists understood it, made no provisions satisfactory to the slave-holders, that any distinct mention of slavery occurs in the legislation of Virginia. In the course of forty years, by which time the slaves numbered two thousand, in a population of forty thousand, mulatto children had been born, and grown to manhood. What should be the condition of these children? By the English law, when the fathers were free, the children were free also. But this did not suit the interest of the slave-holders; the mulattoes were few, ignorant, and helpless, and the Virginia legislature, notwithstanding its acknowledged obligation to conform strictly to English law, did not hesitate to disregard a great and wellestablished principle of that law, and to enact, that children should follow the condition of the mother; and this principle, by statute or usage, was ultimately adopted in all the colonies.

Another question, not less interesting to the slave-holders, presently arose. Of the negroes brought to Virginia, some had been converted and baptized. This was the case to a still greater extent with those born in the colony. By what right were these Christians held as slaves? The law of England, even according to the view of it entertained by the colonists, did not allow the slavery of Christians. It was only pagans and infidels who could be enslaved. But the Virginia assembly came to the relief of the masters; and with that audacious disregard of all law and all right except its own good pleasure, by which slave-holding legislation has ever been characterized, that body enacted, in utter defiance of the English law, that even their own version of it, negroes converted and baptized should not thereby become free. This act bears date in 1669. Another act, passed the same year, in equal defiance of the English law, provided, that killing slaves by extremity of correction should not be esteemed felony, "since it cannot be presumed that prepense malice should induce any man to destroy his own estate."