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absolute necessity did not subsist, since the victor did not actually ‘kill him. War is justifiable only on principles of self-preserva* tion; and therefore it gives no other right over prisoners but 'merely to disable them from doing harm to us, by confining their persons; much less can it give a right to kill, torture, abuse,
plunder, or even to enslave, an enemy, when the war is over. • Since therefore the right of making slaves by captivity depends on a supposed right of slaughter, that foundation failing, the consequence drawn from it must fail likewise. But, secondly, it is said that slavery may begin jure civili; when one man sells • himself to another. This, if only meant of contracts to serve or ' work for another, is very just: but when applied to strict slavery,
(in a sense of the laws of old Rome or modern Barbary, or at present in our colonies,' adds Montesquieu, ut sup.) is impossible. Every sale implies a price, a quid pro quo, an equivalent given to the seller in lieu of what he transfers to the buyer: but what equivalent can he give for life, and liberty, both of which (in ab'solute slavery) are held to be in the master's disposal? His pro
perty also, the very price he scorns to receive, devolves ipso facto 'to his master, the instant he becomes his slave. In this case “therefore the buyer gives nothing, and the seller receives nothing:
of what validity then can a sale be, which destroys the very prin‘ple upon which sales are founded? Lastly, we are told, that be
sides these two ways by which slaves fiunt, or are acquired, they 'may also be hereditary: servi nascuntur; the children of acquired slaves are jure natura, by a negative kind of birthright, slaves also.
But this, being built on the two former rights, must fall together with them. If neither captivity, nor the sale of one's self, can by the law of nature and reason reduce the parent of slavery, much less can they reduce the offspring. We can add nothing to this unanswerable argument,-except, that these three origins of slavery are the very ones, which the antiabolitionists have continued to alledge, ever since the discussion commenced, and which, we venture to say, a planter would now adduce, if he were told there could be no possible foundation of his right to the beings, whom he denominates slaves. He might, indeed, be induced to tell us, that, though he has no right to their persons; yet he has to their services;—but could it escape him, that a right to services can only be founded upon a contract-upon an exchange of equivalents? And that,-laying aside the deprivation of liberty, which is itself above all price,—it would be ridiculous to pretend, that a negro ever became a slave, by the voluntary barter of his own services? In fine, we do not see, that, according to the principles of natural law, there is a possibility of one human being's making out his right to the person or services of another.
And there are other considerations, more particularly connected with the English law, which led us to precisely the same conclusion. England has completely turned the tables upon Africa. There was a time, when the English, of both sexes, were
not only exposed to sale in all the markets of Europe-but transported and sold in Africa.* Between the fifth and eleventh cen. turies, indeed, it would have been no abuse of language to call a great part of Englishmen beasts of burthen. Our word team, though derived from the original Saxon, which signified children, came nevertheless by its present meaning, from being applied to slaves:t-slaves were, at the time we speak of, ranked with cattle of all kinds, under the general denomination of living money;t and, when Dr. Henry tells us, that, · for some time after the set“tlement of the Saxons in England, their slaves were in the same circumstances with their horses, oxen, cows, and sheep, except that it was not fashionable to kill and eat them,'S did he mean to insinuate, that, with regard to the latter peculiarity, their slaves' were any better off than their horses?' Indeed, we sus. pect the only distinction, at that period, between a master's vari. ous kinds of stock, was, that his horses and horned cattle walked on four legs; whereas, we have no sufficient authority for believe ing, that the human cattle used any more than two. Nothing is clearer, at any rate, than that the laws made no sort of distinction. It is expressly stated, in the Leges Wallicæ, 'that a master hath 'the same right to his slaves as to his cattle.' • Slaves were not supposed to have any family or relations, who sustained any loss by their death; and therefore, when one of them was killed by “his master, no mulct was paid; because the master was supposed "to be the only looser; when slain by another his price or manbote was paid to his master.'ll
Let it be remembered, however, that, according to the spirit of these gothic laws, every individual in the community was as much a beast, as a slave, or a horse; the only distinction between different men consisting chiefly in the price put upon their respective heads. Life-liberty-everything, in short, was considered as property, and estimated in pounds and shillings. By the laws of the Angles, for instance, you might kill the king for 13001; a prince, for half as much; a bishop, or an alderman, for 300l.; a sheriff, for 1501; a thane, or clergyman, for 751.; and a ceorl for about 101.9 The 6th law of Ethelbert is, • Let him that killeth a freeman pay fifty shillings to the King for his loss of a subject;' the 20th, But if a man be killed, let the murderer compensate ' his death with twenty shillings; the 21st, “ If a man kill another, "be the ordinary mulct of an hundred shillings imposed upon ‘him;' and the 31st, “Let him that killeth a man make compen
sation, according to the true valuation, in current money.' Nor was life alone considered as so much property. Every limb of the body, even to the teeth and nails, had a definite price fixed upon it; and, what we remark more for its singularity, than for
* Hen. Hist. Qto. Ed. Vol. II. p. 480. Id. ib. p. 484.
ġ Id. ib. p. 236. | Hume's Hist. Vol. I. p. 163. Phil. Ed.
| Id. ib. p. 579. #Id. ib. p. 229.
its direct reference to the subject, there was a sort of tacit compact between all the European nations, that, if a man was maimed, in travelling abroad, the part injured should go for what it was valued at, in his own country. Accordingly, the nose of a Span"iard, for example, (we use the words of Dr. Henry) was perfectly - safe in England, because it was valued at 13 marks; but the nose
of an Englishman run a great risk in Spain, because it was "valued only at 12s. An Englishman,' furthermore, "might have • broken a Welchman's head for a mere trife, but few Welchmen *could afford to return the complement.' Even a wife was considered as mere property; and every marriage contract was matter of bargain and sale. By Ethelbert's 76th law, if a man • bought a maid, she stood for bought, if there were no fraud in the bargain; but if there were, she was to be returned and the purchaser's money restored to him;' and the same King's 32d law was, that, if a freeman lie with a freeman's wife, let him
make amends for his crime, by buying another wife for the injured party. Indeed, it was a maxim of jurisprudence, through all the middle ages, that there was no crime which might not be .expiated with money;' and, as long as every thing was thought to have been made for this world only, we know not that the maxim can be considered as any very great absurdity. But the progress of reason, and, more than all, the introduction of Christianity, púrified, by degrees, the spirit of Gothic jurisprudence. The light struck first, of course, upon the summit of society; and it was a considerable period before it reached to the base. The King and Barons were first emancipated from the slavery of hay. ing a price upon their heads; and, by a succession of ameliorating enactments, even the lowest order of bondmen were ultimately liberated. The leading doctrine of Christianity—that the soul is immortal-did more than any thing else, in placing the life of man beyond any estimate of money, or merchandize.
It drew a broad line of distinction between the soul and the body; and set man at an immeasurable height above the beasts that perish. By the progressive melioration of the English law, he has left behind him all the animals, with which he was once ranked; and, though it is now felony to kill or to traffic in human beings, our poor oxen and horses may still be slaughtered or sold, with the greatest impunity. From these considerations it is sufficiently manifest, we think, that, according to the present spirit of English law, man is utterly beyond all price,--and that, consequently, no one human being can be the property of another.
There is one part of the English Constitution, indeed, which, at first sight, seems, in a measure, to disprove our conclusion. It is not to be denied, we confess, that, to one who looks only at the penal code of Great Britain, her laws would seem to hold the life of man in no very extravagant estimation. But the fact is by no means conclusive against our reasoning; and a slight historical review of the subject will abundantly show, we apprehend, that the
objection cannot have the least weight, in the minds of those, who breathe the spirit of the nineteenth century. At first, the whole system of the Britons was, without doubt, as sanguinary as that of all other savage nations. By some means or other, however, it became inordinately lenient about the fifth century; insomuch, that crimes of every sort were expiated by pecuniary compensation. Every thing, as we have seen above, was subjected to a "valuation in current money;' and, among the rest, a sign of equality was established between the lives of men and a certain number of pounds and shillings. In the tenth century, it began to be discovered, that these laws were most dangerously ineffectual; and measures were accordingly taken to make them more severe and preventive. Reformation went on; and it was not long before the system was completely reversed; so, that, while formerly a man might slay his neighbour for 20s., he was now slain himself, for purloining a great deal less amount. The same principle, however, was still at the bottom of the scheme,—that of considering men in the degrading light of things that could have a price. The progress of religion and of reason, as we endeavoured to prove before, has completely subverted this barbarous doctrine;--so that, in fact, the penal code of England has utterly outgrown the reason of its foundation;--just as the depreciation of money has destroyed the reason for giving the right of sufferage to such as had a freehold of 40s. yearly value;--a sum which was fixed upon, as all know, because no individual could be considered as independent,* with a less income,—but which, according to the present value of money, can no more be the measure of a man's independence, than 1s. could, at its original institution. The penal code of Great Britain is a part of what we may call the Gothic constitutions; and ought to have passed away, with the other parts of that system. If the old methods of estimating testimony had been retained, -if, in other words, the ordeal and the corsned were still resorted to, and if the credibility of a person, under oath, continued to be rated according to his price or manbote,—there would be some shadow of excuse, for preserving the ancient measure of punishment. But those other parts have been gone, time whereof the memory of man hardly runneth to the contrary; and we consider it as a standing reproach to the boasted excellence of the British Constitution, that this remnant did not go along with them. It is directly opposed to what all emphatically consider as the fundamental doctrine of the national religion; and, while England is taking every pains to translate the Bible in every language, and to place it in every hand, she obstinately adheres to a code of jurisprudence, which disavows the most invaluable of all its principles. This principle has pervaded the other parts of her constitution; and we hope, ere long, we may be able to say without the slightest qualification, that no branch
* Blk. B. I. c. 2. pp. 170, 173.
of the system supposes the life of man to be capable of estimation in the things of this world—or, which amounts to the same thing, to be capable of forfeiture for any crime but that of its wilful deprivation.
The principle we have now been endeavouring to establish will change the whole question of negro slavery; though of the manifold consequences
which follow from it, we can find no room, at present, to particularise more than two or three of the most important. It is, in the first place, the only thing that could enable the English abolitionists to rebutt effectually the great and leading plea of the Colonists, against every measure for ameliorating the condition of their slaves; namely, that it controverts the spirit of British jurisprudence, by rendering private property insecure, and that, what is still more tyrannical, it violates their chartered rights, by taking from their own hands the power of exclusive legislation, for their internal concerns. They tell the mother country, that their slaves have been fairly bought, and are as much their legal property as an ox, or an ass, or any thing that is theirs: And, as long as they are permitted to alledge this plausible argument, without being satisfactorily answered, we apprehend, that the justness of their appeal to the British Constitution cannot possibly be got rid of. Parliament should speak in the spirit of her laws, and tell her complaining Colonists-as she may tell them, with perfect truth,—that they have no right to their slaves; that she recognises no principle, by which man may be ranked with merchandize, or with brute animals; and that, wherever the English laws prevail, the life and liberty of man are above all price, and, therefore, incapable of bargain and sale. This answer would be conclusive against the plea of interfering with a man's right to his property:--and it would be no less so, likewise, against that of interfering with the interior legislation of the Colonists. These Colonists have no right to legislate away the principles of English law; and, indeed, there is, in all their charters, we believe, an express provision, that nothing shall be done contrary to that law. When Parliament undertakes, therefore, to make changes in the situation of the blacks, it does nothing more than to enforce laws, which are equally cogent, in every part of her dominions; and, instead of being considered as an encroachment on the legislative rights of the Colonists, such a measure ought, in fact, to be viewed as merely the assertion of its own rights, against the encroachments of the Colonists themselves. If Parliament were to pass acts, which, by abolishing the use of yokes and harness, for ex. ample, should ultimately lead to the emancipation of all colonial oxen and horses, we should agree with the West Indians, that it had made their property insecure, and had interfered with their internal economy. But oxen and horses, we must repeat it, are no way analogous to human creatures. The great criterion of property, is, that it may be bought and sold; to be capable of sale and purchase, a thing must be estimable in current money; and,