CHAPTER III.

THE COLONIAL CHARTERS.

WHEN our ancestors came to this country, they brought with them the common law of England, including the writ of habeas corpus, (the essential principle of which, as will hereafter be shown, is to deny the right of property in man,) the trial by jury, and the other great principles of liberty, which prevailed in England, and which have made it impossible that her soil should be trod by the foot of a slave.

These principles were incorporated into all the charters, granted to the colonies, (if all those charters were like those I have examined, and I have examined nearly all of them.)The general provisions of those charters, as will be seen from the extracts given in the note, were, that the laws of the colonies should "not be repugnant or contrary, but as nearly as circumstances would allow, conformable to the laws, statutes and rights of our kingdom of England. ”*

The second charter to Virginia (1609) grants the power of making "orders, ordinances, constitutions, directions and instructions," "so always as the said statutes, ordinances and proceedings, as near as conveniently may be, be agreeable to the laws, statutes, government and policy of this our realm of England." The third charter (1611-12) gave to the "General Court" ". power and authority" to "make laws and ordinances ""so always as the same be not contrary to the laws and statutes of our realm of England."

The first charter to Carolina, (including both North and South Carolina,) dated 1663, authorized the making of laws under this proviso-" Provided nevertheless, that the said laws be consonant to reason, and as near as may be conveniently, agreeable to the laws and customs of this our kingdom of England.”

The second charter (1665) has this proviso. "Provided nevertheless, that the said laws be consonant to reason, and as near as may be conveniently, agreeable to the laws and customs of this our realm of England."

The charter to Georgia, (1732,) an hundred years after slavery had actually existed

Those charters were the fundamental constitutions of the colonies, with some immaterial exceptions, up to the time of the revolution; as much so as our national and state constitutions are now the fundamental laws of our governments.

The authority of these charters, during their continuance, and the general authority of the common law, prior to the revolution, have been recognized by the Supreme Court of the United States. *

in Virginia, makes no mention of slavery, but requires the laws to be "reasonable and not repugnant to the laws of this our realm." "The said corporation shall and may form and prepare laws, statutes and ordinances fit and necessary for and concerning the government of the said colony, and not repugnant to the laws and statutes of England."

The charter to Maryland gave the power of making laws, " So, nevertheless, that the laws aforesaid 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."

The charter granted to Sir Edward Plowden had this proviso. "So, nevertheless, that the laws aforesaid be consonant to reason, and not repugnant and contrary, (but as convenient as may be to the matter in question,) to the laws, statutes, customs and rights of our kingdoms of England and Ireland.”

In the charter to Pennsylvania, power was granted to make laws, and the people were required to obey them, "Provided nevertheless that the said laws be consonant to reason, and be not repugnant or contrary, but, as near as conveniently may be, agreeable to the laws, statutes, and rights of this our kingdom of England.”

I have not been able to find a copy of the charter granted to the Duke of York, of the territory comprising New York, New Jersey, &c. But Gordon, in his history of the American Revolution, (vol. 1, p. 43,) says, "The king's grant to the Duke of York, is plainly restrictive to the laws and government of England."

The charter to Connecticut gave power " Also from time to time, to make, ordain and establish all manner of wholesome and reasonable laws, statutes, ordinances, directions and instructions, not contrary to the laws of this realm of England."

The charter to the Massachusetts Bay Colony, (granted by William and Mary,) gave “full power and authority, from time to time, to make, ordain and establish all manner of wholesome and reasonable orders, laws, statutes and ordinances, directions and instructions, either with penalties or without, so as the same be not repugnant or contrary to the laws of this our realm of England."

The charter to Rhode Island granted the power of making laws, "So as such laws, ordinances, constitutions, so made, be not contrary and repugnant unto, but (as near as may be) agreeable to the laws of this our realm of England, considering the nature and constitution of the place and people there."

Several other charters, patents, &c. that had a temporary existence, might be named, that contained substantially the same provision.

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*In the case of the town of Pawlet v. Clark and others, the court say — "Let us now see how far these principles were applicable to New Hampshire, at the time of issuing the charter to Pawlet.

"New Hampshire was originally erected into a royal province in the thirty-first

No one of all these charters that I have examined-and I have examined nearly all of them-contained the least intimation that slavery had, or could have, any legal existence under them. Slavery was therefore as much unconstitutional in the colonies, as it was in England.

It was decided by the Court of King's Bench in England-Lord Mansfield being Chief Justice-before our revolution, and while the English Charters were the fundamental law of the colonies-that the principles of English liberty were so plainly incompatible with slavery, that even if a slaveholder, from another part of the world, brought his slave into England-though only for a temporary purpose, and with no intention of remaining-he nevertheless thereby gave the slave his liberty.

Previous to this decision, the privilege of bringing slaves into England, for temporary purposes, and of carrying them away, had long been tolerated.

This decision was given in the year 1772.* And for aught I see, it was equally obligatory in this country as in England, and must have freed every slave in this country, if the question had then been raised here. But the slave knew not his rights, and had no one to raise the question for him.

The fact, that slavery was tolerated in the colonies, is no evidence of its legality; for slavery was tolerated, to a cer

year of Charles II., and from thence until the revolution continued a royal province, under the immediate control and direction of the crown. By the first royal commission granted in 31 Charles II., among other things, judicial powers, in all actions, were granted to the provincial governor and council, So always that the form of proceeding in such cases, and the judgment thereupon to be given, be as consonant and agreeable to the laws and statutes of this our realm of England, as the present state and condition of our subjects inhabiting within the limits aforesaid (i. e. of the province) and the circumstances of the place will admit.' Independent, however, of such a provision, we take it to be a clear principle that the common law in force at the emigration of our ancestors, is deemed the birthright of the colonies, unless so far as it is inapplicable to their situation, or repugnant to their other rights and privileges. A fortiori the principle applies to a royal province." - (9 Cranch's U. State's Reports, 332-3.

* Somerset v. Stewart.- Lofft's Reports, p. 1 to 19, of Easter Term, 1772. In the Dublin edition the case is not entered in the Index.

tain extent, in England, (as we have already seen,) for many years previous to the decision just cited—that is, the holders of slaves from abroad were allowed to bring their slaves into England, hold them during their stay there, and carry them away when they went. But the toleration of this practice did not make it lawful, notwithstanding all customs, not palpably and grossly contrary to the principles of English liberty, have great weight, in England, in establishing law.

The fact, that England tolerated, (i. e. did not punish criminally,) the African slave-trade at that time, could not legally establish slavery in the colonies, any more than it did in England-especially in defiance of the positive requirements of the charters, that the colonial legislation should be consonant to reason, and not repugnant to the laws of England.

Besides, the mere toleration of the slave trade could not make slavery itself the right of property in man-lawful any where; not even on board the slave ship. Toleration of a wrong is not law. And especially the toleration of a wrong, (i. e. the bare omission to punish it criminally,) does not legalize one's claim to property obtained by such wrong. Even if a wrong can be legalized at all, so as to enable one to acquire rights of property by such wrong, it can be done only by an explicit and positive provision.

The English statutes, on the subject of the slave trade, (so far as I have seen,) never attempted to legalize the right of property in man, in any of the thirteen North American colonies. It is doubtful whether they ever attempted to do it any where else. It is also doubtful whether Parliament had the power-or perhaps rather it is certain that they had not the power to legalize it any where, if they had attempted to do so.* And the cautious and curious phraseology of

* Have parliament the constitutional prerogative of abolishing the writ of habeas corpus? the trial by jury? or the freedom of speech and the press? If not, have they the prerogative of abolishing a man's right of property in his own person?

their statutes on the subject, indicates plainly that they themselves either doubted their power to legalize it, or feared to exercise it. They have therefore chosen to connive at slave ry, to insinuate, intimate, and imply their approbation of it, rather than risk an affirmative enactment declaring that one man may be the property of another. But Lord Mansfield

said, in Somerset's case, that slavery was "so odious that nothing can be suffered to support it, but positive law.”No such positive law (I presume) was ever passed by parliament certainly not with reference to any of these thirteen colonies.

The statute of 1788, (which I have not seen,) in regard to the slave trade, may perhaps have relieved those engaged in it, in certain cases, from their liability to be punished criminally for the act. But there is a great difference between a statute, that should merely screen a person from punishment for a crime, and one that should legalize his right to property acquired by the crime. Besides, this act was passed after the separation between America and England, and therefore could have done nothing towards legalizing slavery in the United States, even if it had legalized it in the English dominions.

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The statutes of 1750, (23, George 2d, Ch. 31,) may have possibly authorized, by implication, (so far as parliament could thus authorize,) the colonial governments, (if governments they could be called,) on that coast of Africa, to allow slavery under certain circumstances, and within the “ settlements on that coast. But, if it did, it was at most a grant of a merely local authority. It gave no authority to carry slaves from the African coast. But even if it had purported distinctly to authorize the slave trade from Africa to America, and to legalize the right of property in the particular slaves thereafter brought from Africa to America, it would nevertheless have done nothing towards legalizing the right of property in the slaves that had been brought to, and born in, the colonies for an hundred and thirty years previous to the statute. Neither the statute, nor any right of property