ART. II. THE LEGALITY OF AMERICAN SLAVERY.

THE fourth number of this Review contains a very elaborate article, in which three positions are sought to be maintained; first, that negro slavery, prior to the Revolution, had a legal existence in the British Colonies, now the United States of America; second, that this legal existence was recognized and continued by the state constitutions; and third, that it was recognized and ratified by the Constitution of the United States.

The second and third of these propositions obviously depend upon the first, and if that fails they have nothing to stand upon. Having in a former number of this Review maintained the doctrine that slavery in the British colonies had no legal basis, we feel at liberty to reply very briefly to the article referred to; and the more so as our own former article is therein freely quoted and criticized.

Following in the footsteps of Sir William Scott, (afterwards Lord Stowell,) who, by the way, was no common lawyer, but an admiralty judge, distinguished for that hostility to popular rights which always made the civil law and its professors so obnoxious to the common law courts and the English people, our reviewer attempts to limit, to retrench, and to belittle as much as possible the famous Somerset case. But after all he

is obliged to admit,-what indeed it would be bold to deny, and what is all that any body contends for,- that it is decided by Somerset's case, that negro slavery never was sanctioned or permitted by the law of England. Our reviewer holds, however, that though not legal in England, negro slavery was made so in the colonies, first by custom, and secondly by statute. In maintaining this proposition, he confines himself to Virginia, the Carolinas, and Georgia. Maryland he omits; he does not tell us why, but it is not very difficult to conjecture the reason. The charter of Maryland remained in full force down to the period of the Revolution, and that charter contained an express provision that all laws made under it should be "consonant to reason " and "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." It would have been rather too bold to have argued, in the face of this express prohibition, that the assembly of Maryland had power to introduce into that colony the condition of negro sla

very, pronounced by Lord Mansfield, in the Somerset case, not only unknown to the law of England, but "odious," and "of such a nature that it is incapable of being introduced on any reasons, moral or political." It is imagined, however, by our reviewer, that Virginia, the Carolinas, and Georgia stand on different ground. They, too, once had charters containing restrictions in substance the same with that in the charter of Maryland. But these charters were ultimately taken away, and the legislative authority vested in a royal governor and assembly under a commission and instructions from the crown. We had asserted, in our former article, that these crown colonies or provincial governments were legally just as much restricted in their power of legislation as the charter colonies, and practically more so; and consequently that they had no more power than the charter colonies to legalize negro slavery. Upon this point issue is taken with us. It is maintained, that though negro slavery was contrary to the law of England, the assemblies of the crown colonies, with the consent of the king, had the power to make it legal there; and that they exercised this power with the consent of the king, and did actually make it legal there. The whole of the article rests upon this assertion as a pivot; and when it is shown to be groundless, the whole argument, with all its mass of quotations and authorities, falls to the ground. It is, indeed, a little singular, that amid such a profusion of references, no authority should have been quoted to sustain a position upon which the whole argu

ment rests.

Several different theories were brought forward at different times as to the basis of legislation in the English colonies. It was maintained by many English lawyers, prior to the revolution of 1689, and by some afterwards, that the king was absolute sovereign in the colonies, and had a right to establish there such laws as he pleased, and that the inhabitants were only entitled to such laws as he did actually establish. Chalmers observes, (History of the Revolt of the American Colonies, Vol. I., p. 308, note) that "the state papers demonstrate that the most renowned jurists of the reign of William had formed no complete conception of the nature of the connective principle between the parent country and her colonies." "The most respectable cabinet which that monarch ever enjoyed, composed of Somers, Pembroke, Shrewsbury, Bridgewater, Romney, Godolphin, and Sir William Trumbull, denied to the New English the privilege of the writ of habeas corpus, because

it had never been conferred on the colonists by any king of England," plainly supposing that the most important of all rights, the best security of personal liberty, must result from a grant of the crown to a subject beyond the ocean. In the same reign, the illustrious Lord Holt himself, in relation to this very subject of slavery, in the case of Smith vs. Brown, (1 Salk., 666, Holt, 495) in which he declared that no such thing as slavery was known in England, and that "as soon as a negro came into England he is free," while he held on this ground that indebitatus assumpsit could not lie for the price of a slave sold in England, yet seemed to admit that if the slave had been alleged to have been sold in Virginia, and the laws sanctioning slavery there had been set out, the action might lie; because "the laws of England do not extend to Virginia. Being a conquered country their law is what the king pleases, of which we cannot take notice if it be not set forth."

But this arbitrary doctrine was never admitted in the colonies; and was ultimately abandoned by all English constitutional lawyers. The colonists maintained that they carried with them from England, or, being born in the colonies under the king's allegiance, inherited thereby, all the rights, privileges, and immunities of British subjects; that the great charter and the law of England formed a part of this inheritance, the birthright of every subject, and that as the king at home possessed no power of arbitrarily interfering with his subjects, or altering the law of levying taxes except by consent of those subjects by their representatives in parliament-so he could lay no taxes in the colonies, nor make any local regulations there, except by consent of the inhabitants as represented in an assembly.

This doctrine as to the inheritance of the English law, was fully established by the English courts, (1 Salk., 411, 2 Peere Williams, 75) and is distinctly stated by Blackstone (1 Comm., 157,) as to uninhabited countries discovered and planted by English subjects. As to conquered or ruled countries, "that have already laws of their own, the king may indeed alter or change those laws; but till he does actually change them, the ancient laws of the country remain, unless such as are against the law of God." (Ib.)

According to both these theories, the consent and coöperation of the king was absolutely essential to colonial legislation. By the first theory, the colonial assemblies, whether authorized

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 beyond 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 consid ered 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

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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 alleging 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 constitutions 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, Lord 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