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lutionary disputes, several opponents of slavery “took occasion publickly to remonstrate against the inconsistency of contending for our own liberty, and at the same time depriving other people of theirs.” Nathaniel Appleton and James Swan, merchants of Boston, distinguished themselves as writers on the side of liberty. “ Those on the other side generally concealed their names, but their arguments were not suffered to rest long without an answer. The controversy began about the year 1766, and was renewed at various times till 1773, when it was very warmly agitated, and became the subject of forensic disputation at the public Commencement in Harvard College.”
This subject, at least so far as concerned the further importation of negroes and others “ as slaves," was introduced into the General Court; but neither Bernard, Hutchinson, nor Gage would concur in any legislation upon it. “The blacks," says Belknap,“ had better success in the judicial courts. A pamphlet containing the case of a negro who had accompanied his master from the West Indies to England, and had there sued for and obtained his freedom, was reprinted” at Boston, "and this encouraged several negroes to sue their masters for their freedom and for recompense of their services after they had attained the age of twenty-one years.
This pamphlet was undoubtedly the Somerset case, though Belknap dates the first of these Massachusetts cases in 1770, two years previous to that important decision. “The negroes collected money
" among themselves to carry on the suit, and it terminated favorably. Other suits were instituted between that time and the Revolution, and the juries invariably gave their verdict in favor of liberty.” The old fundamental law of Massachusetts authorizing the slavery of Indians and negroes was no longer in force; it had fallen with the first charter. Under the second charter no such statute had been reënacted, but slavery had continued by custom, and had been recognized by the statutes of the province, apparently as a legal relation. "The pleas on the part of the masters were, that the negroes were purchased in open market, and bills of sale were produced in evidence that the laws of the province recognized slavery as existing in it, by declaring that no person should manumit his slave without giving bond for his maintenance, &c. On the part of the blacks it was pleaded, that the royal charter expressly declared all persons born or residing in the province to be as free as the king's subjects in Great Britain ; that by the law of England, no man could be deprived of his liberty but by the judgment of his peers; that the laws of the province respecting an evil existing, and attempting to mitigate or regulate it, did not authorize it. And on some occasions the plea was, that though the slavery of the parents be admitted, yet that no disability of that kind could descend to the children." “ The juries invariably gave their verdict in favor of liberty,” nor does it appear that these verdicts were in any respect inconsistent with the instructions of the judges as to matter of law.
The blow thus dealt at slavery in Massachusetts might perhaps have been repeated in other colonies; but before there was time for any thing of the sort, the Revolution occurred, and new governments stepped in to take the places of the old ones. This brings us back to the question started at the close of our former article: Did the new governments, established at the Revolution, do any thing to give any additional character of legality to the institution of slavery ?
Let us begin with the commonwealth of Virginia. The convention of delegates and representatives from the several counties and corporations which assumed the responsibility of framing a new government for that state, very properly prefaced their labors by setting forth a Declaration of Rights, as its “ basis and foundation." This Declaration of Rights, bearing date June 12, 1776, announced among other things, “ that all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot by any compact deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” Upon “ the basis and foundation” of this Declaration of Rights, the convention proceeded to erect a “constitution, or form of government,” in which it was provided that the “common law of England,” and all statutes of parliament not local in their character, made in aid of the common law prior to the settlement of Virginia, " to gether with the several acts of the General Assembly of this colony now in force, so far as the same may consist with the several ordinances, declarations, and resolutions of the general convention, shall be considered as in full force until the same shall be altered by the legislative power of this colony.” But this provision could give no validity to the colonial acts for the establishment of slavery; in the first place, because those acts,
legally speaking, were not in force, and never had been, being void from the beginning, enacted in defiance of great principles of the English law, by which the powers of the colonial assembly were restricted ; and in the second place, because they did not and could not consist with that “declaration of the convention,” above quoted, laid down by the convention itself as “the basis and foundation" of the new government.
Immediately after the adoption of this constitution, provision was made for revising the laws of Virginia, and a committee was appointed for that purpose ; but nothing was done till 1785, when several bills prepared by the committee of revision were sanctioned by the assembly and enacted as laws. It was provided in one of these acts, « that no persons shall henceforth be slaves in this commonwealth, except such as were so on the first day of this present session of assembly, and the descendants of the females of them.” This act embodied into the codification of 1792, still remains in force, and through it all legal titles to slave property in Virginia must be traced. But in 1785, there were no persons legally held as slaves in Virginia. The practice on this subject, and the acts of the colonial assembly which countenanced that practice, were contradictory to the law of England, always binding on the colonial assembly, and specially adopted by the revolutionary gov. ernment as the law of Virginia ; and contradictory, also, to
; those general principles and that declaration of natural rights specially adopted as “ the basis and foundation” of the new government.
The convention which framed the constitution of Virginia was far from conferring, or claiming any power to confer, on the assembly any authority to reduce any of the inhabitants of that state to a condition of slavery. The assembly was far from claiming the possession of any such power, or from attempting to add any thing to the legal basis upon which slavery rested prior to the Revolution. It remained then what it had been in colonial times, & mere usurpation, without any legal basis; a usurpation in direct defiance of the Declaration of Rights, upheld by mere force and terror, and the overwhelming power and influence of the masters, without law and against law.
The convention of Maryland, (which upon the breaking out of hostilities with the mother country had displaced the proprietary government,) following in the footsteps of Virginia, adopted, on the 3d of November, 1776, a Declaration of
Rights, the introductory part of a new constitution, in which they declared, “ that all government of right originates from the people ; is founded in compact only, and is constituted solely for the good of the whole ;” and “ that the inhabitants of Maryland are entitled to the common law of England ; to all English statutes applicable to their situation, passed before the settlement of Maryland, and introduced and practised on in the colony; and also to all acts of the old colonial assembly “in force” on the first of June, 1774. But the acts of assembly sanctioning and legalizing slavery were not “ in force” on the first of June, 1774,
nor at any other time. They never had been in force; they were contrary to the law of England, to a correspondency with which the colonial assembly was specially limited by charter. Yet it is on these void acts that the supposed legality of slavery in Maryland still continues to rest.
The constitution of North Carolina, formed Dec. 17th, 1776, contains not one single word respecting slavery. That institution did not receive even the semblance of support derived in Virginia and Maryland from the continuation in force of the colonial acts ; for no act of the colonial assembly of North Carolina had ever attempted to define who were or might be slaves. Nor was any such attempt made by the newly established assembly. Slavery remained in the state of North Carolina what it had been in the colony, - a mere custom, a sheer usurpation, not sustained by even the semblance of law.
Neither the first constitution of South Carolina, adopted in March, 1776, nor the second constitution, adopted March, 1778, contains a single word attempting to legalize slavery, nor even any clause continuing in force the old colonial acts. But in February, 1777, in the interval between the two constitutions, an act of assembly revived and continued in force for five years certain of those acts, among others the act of 1740, on the subject of slavery, of which a synopsis was given in our former article ; and in 1783, this act was made perpetual. But the act of 1740 was void from the beginning, by reason of numerous contradictions to the law of England which the colonial assembly of South Carolina had no power to enact into law. If, then, the reviving acts of 1777 and 1783 are to have any validity, they must be considered as original acts, subjecting half the population of South Carolina to perpetual slavery. Had the assembly of South Carolina any authority to pass such acts ? Has it any such authority at this moment? Could the South Carolina democrats, having a majority in the assembly, pass a valid act for selling all the whigs into perpetual slavery? or all inhabitants of Irish descent ? or all white men not freeholders and not possessed of visible property ? or all citizens of Massachusetts who might land on her hospitable coast ?
We must always remember, in considering questions of this sort, that not the Federal government only, but the state governments, also, are governments of limited powers. The sovereign power is in the people, or that portion of it possessed of political rights; the holders of offices created by the state constitutions possess no authority not specially conferred upon them by those constitutions. Admit, for the sake of the argument, that the sovereign people of South Carolina are omnipotent, and can give the character of law to the most atrocious wrongs; yet, surely, no state legislature can exercise any such authority, unless it be expressly delegated. . But the constitutions of South Carolina delegated no such power; and a power in a state legislature, to reduce at its pleasure, to the condition of perpetual servitude, any portion of the inhabitants of a state,
а and that not for public but for private uses, is hardly to be presumed as one of the ordinary powers of legislation, at least in a state which, in the solemn act of separation from the mother country, had united in declaring that all men are born free and equal, and that life, liberty, and the pursuit of happiness are inalienable rights.
The first constitution of Georgia, formed in February, 1777, contains no allusion to slavery. The legislative power of the assembly is restricted to “such laws and regulations as may be conducive to the good order and well-being of the state.” Unsupported by any new authority, the system of slavery was left in Georgia as in the other states, to rest on such legal basis as it might have had during colonial times. The rottenness of that basis was not perceived by the state legislatures or the state courts. Their preconceived prejudices, their unwillingness to look into the matter at all, kept them blind to it; but their blindness, their ignorance, their mistakes, could not alter the law, or make that legal which in fact was not so.
The Supreme Court of Massachusetts decided that the natural freedom and equality of all men, acknowledged in the Bill of Rights prefixed to the constitution adopted in that state in 1780, was totally inconsistent with the existence of involuntary