The Unconstitutionality of SlaverySpooner, Lysander
Philosophy
The Unconstitutionality of Slavery
Spooner, Lysander
Slavery -- United States
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 acquired
under it, (in the individual slaves thereafterwards brought from
Africa,) would therefore avail anything for the legality of slavery in
this country now; because the descendants of those brought from Africa
under the act, cannot now be distinguished from the descendants of those
who had, for the hundred and thirty years previous, been held in bondage
without law.
But the presumption is, that, even after this statute was passed in
1750, if the slave trader's _right of property_ in the slave he was
bringing to America, could have been brought before an English court for
adjudication, the same principles would have been held to apply to it,
as would have applied to a case arising within the island of Great
Britain. And it must therefore always have been held by English courts,
(in consistency with the decision in Somerset's case,) that the slave
trader had no legal ownership of his slave. And if the slave trader had
no legal right of property in his slave, he could transfer no legal
right of property to a purchaser in the colonies. Consequently the
slavery of those that were brought into the colonies after the statute
of 1750, was equally illegal with that of those who had been brought in
before.[8]
The conclusion of the whole matter is, that until some reason appears
against them, we are bound by the decision of the King's bench in 1772,
and the colonial charters. That decision declared that there was, at
that time, in England, no right of property in man, (notwithstanding
the English government had for a long time connived at the slave
trade.)--The colonial charters required the legislation of the colonies
to be consonant to reason, and not repugnant or contrary, but
conformable, or agreeable, as nearly as circumstances would allow, to
the laws, statutes and rights of the realm of England. That decision,
then, if correct, settled the law both for England and the colonies. And
if so, there was no _constitutional_ slavery in the colonies up to the
time of the revolution.
Public-domain text, read in full here on John Shaqi.
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