or European colonist.' The right of the native inhabitants in the lands they occupied was considered, at best, only qualified and temporary, and their lives and property received, even in periods of professed peace, but little protection from the colonial laws; it being in fact impossible, in reference to savage races, to make those discriminations between a state of peace and a state of war, which are so important in determining the legal character of acts incident to the intercourse of civilized nations.2 The generally received doctrines of the difference in rights between Europeans and Moors, Africans and Indians, together with the international application of those doctrines has been stated in the preceding chapter. The warlike and intractable character of the North American Indian would have prevented, had there been no moral restraint, the systematic oppression and enslavement which was practised in the islands and the southern parts of the continent by the Spaniards. In the English colonies the aboriginal inhabitants receded before the advancing settlements, and never became, unless in a few isolated cases, incorporated with the body of the white inhabitants, and they have continued, as a race, to form separate communities, whose relations to the whites have been determined under special quasi-international laws. In the earlier history of all the colonies there are instances of their being reduced to slavery by

11 Story's Comm. §§ 1-10. 1 Banc. 145, 167, 270. 1 Hildr. 69, 410. But the instructions from the authorities in England, repeatedly enjoined justice towards the natives, 1 Banc. 346, and Charter of Mass. Prov., in 1692. Many of the earlier colonial laws propose an adoption of Indians into the civil community. See Virginia Laws, 1619, N. Y. Hist. Soc. Coll. 2d series, vol. iii. part 1, p. 331. Mass. Laws, 1633, post ch. vi.

See

Francis Victoria, A. D. 1557, opposed the current opinions of his day in asserting that hostilities against the native tribes could not be justified on the ground of their vices, or of their Paganism. "Indis non debere auferri imperium ideo quia sunt peccatores, vel ideo quia non sunt Christiani." See Mackintosh, Hist. Eth. Phil. p. 109. The same opinion was held by Ayala, 1597, and by Covarruvias and others. Hallam's Lit. of Europe. Victoria held, however, that it was lawful to enslave Pagan captives. See Wheaton's Law of Nations, Introd. p. 40. During the sixteenth century, in wars of European states the captor had a property in his prisoner, which was assignable, 1 Motley's Rise of D. R. p. 151. Bynkershoek, Quæst. Jur. Pub. lib. i. c. 3, that a German officer commanding in Ireland, in 1690, is said to have ordered prisoners to be transported to America, to be sold as slaves, and to have been only deterred by the threat of the Duke of Berwick, that, as a retaliatory measure, he would send his prisoners to the galleys in France.

Dred Scott v. Sanford, 19 Howard R. 403, 404. Kent's Comm. Lect. LI.

1

the local authorities; usually, when taken captive in war, or in punishment for violations of the code of intercourse prescribed by the colonial powers. There were also instances of their being kidnapped and sold; but this was contrary to express statute, in most, if not in all the colonies, and to the law of nations as generally recognized in the international intercourse of Europeans with heathen and barbarian nations.2

§ 200. It was the colonization of America that gave occasion to a wider and more important application of that modification of the ancient doctrine of chattel slavery into a personal law for Moors and negroes which was described in the previous chapter. Negro slaves were introduced into the Spanish colonies as early as the year 1501, and the importation received the sanction of a royal ordinance about the same period. Charles V. granted letters patent to transport slaves into the Spanish colonies in 1543. The French, English and Dutch navigators joined in the trade of importation, and it became an ordinary branch of commercial enterprise, in which merchants of every maritime nation in Europe took part. Sir John Hawkins brought slaves into the Spanish West India Islands in 1562.3

Slaves were brought into the North American colonies shortly after their first settlement. Negro slavery in Virginia is said to have commenced with the importation of a cargo of slaves from Africa, by a Dutch vessel in 1620. Hutchinson says that negroes were brought in very early among the colonists of Massachusetts, but that they had a law against slavery, except of prisoners taken in war. The Massachusetts Fundamentals 1641, sanction slavery by purchase. Also the law of

12 Winthrop's N. E. 360. 1 Banc. 168. 1 Hild. pp. 37, 239, 251, 269, 489, 490, 538, 557; 2 do. 271. Hewit's Hist. of S. Car. vol. i. p. 78, and post, ch. vi. See ante, § 166. During the first century after the discovery of America, natives of the continent were frequently seized and sold as slaves in Europe and the W. I. islands. See 1 Banc. 167-169, and the citations.

For the earlier history of slavery, in connection with that of the American continent, see 1 Banc. 159-179, and the authors cited in the preceding chapter. Charters incorporating adventurers with a monopoly of the importation of slaves from Africa into America were granted by James I., Charles I., and Charles II., "and in the year 1792, twenty-six acts of parliament, encouraging and sanctioning the trade, could be enumerated." Walsh's Appeal, 326, 327.

Beverley's Virginia, 35. 1 Banc. 177.

1 Hutch. Hist., 3d ed. p. 393. See post, ch. vi. In Josselyn's Voyage, 1638,

the other New-England colonies at that period was undoubtedly the same on this subject. The Dutch records allude to the existence of slavery in the settlements on the Hudson in 1626, or even at the first settlement of the colony of New Amsterdam, and in those on the Delaware in 1639. From the legislation of the Carolinas, it seems that negroes were held in them as slaves from the earliest period of their settlement.2 But it is probable that, in all the colonies, Indians taken in war, were held as slaves before any negroes were imported from Africa. Slave-holding was not permitted in Georgia before the year 1747.'

§ 201. Whatever sanction may have been given to slavery in any of its legal aspects, by subsequent statutes of the British Parliament, royal ordinances, or colonial legislation, such acts of strictly positive legislation could have had no effect upon the condition of persons in the colonies at the time of the first introduction of African and Indian slaves. It is, however, a clear deduction from the elementary legal principles which have been hereinbefore set forth, that the chattel-slavery of heathen Africans and Indians was lawful at this time in all the colonies, and properly received judicial recognition and support in international and municipal (internal) private law. This lawfulness is not here stated as the result of a custom, the inception of which is here described, or as being proved by subsequent long-continued acquiescence, but as being, at the time of such inception, the effect of established principles, judicially recognized in all countries, having the authority of that jurisprudence which among all nations is taken to be the foundation of the far greater portion of legal rights and obligations. It was judicially regarded as resting on natural reason indicated in the law of nations historically known at that

negroes are mentioned as being held in slavery at Noddle's Island in Boston harbor. See Mass. Hist. Coll., vol. 3, p. 231.

Moulton's Hist. N. Y., vol. 1, part 2, p. 373. 1 Hildr. 441. 2 Banc. 303. The Dutch W. I. Company agreed to furnish the colony of New Netherlands with as many blacks as they conveniently could. 1 Broadhead, p. 196. Bettle's essay in Mem. Penn. Hist. Soc., vol. 1. Hazard's Annals of Pennsylvania. Albany Records. No mention is made of negroes in Campanius's account of the Danish colony of New Sweden. 1A cargo of negroes from Barbadoes brought by Sir John Yeomans, in 1671. 2 Banc. 170.

'Stevens' Hist. of Georgia, p. 312.

period-the common law of the world'-applied in international and in municipal law because indicating the will of the supreme source of law having the territorial jurisdiction, whenever not disallowed by some more direct exposition of that will."

§ 202. On the same principle by which the historical law of nations was received in supporting the slavery of foreign Africans, that is, that of being an indication of natural reason supposed to be accepted by the supreme power of the state, the same doctrines of the law of nations, or universal jurisprudence, must be held to have obtained with legal effect in interpreting the legislative enactments of the supreme power and the personal extent of the charter provisions operating as private law.

1 The existence of a jus gentium, or historical law of nations, operating as private law, must be admitted in construing statements like this of Taney, Ch. J., in Dred Scott's case, 19 Howard, R. 407: "They [negroes] had for more than a century before, [the time of the Declaration of Independence and of the adoption of the Constitution of the U. S.,] been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, &c." It is not necessary to suppose the learned Chief Justice to intend saying that a negro who had never been a slave, or who had been legally manumitted, had no rights, &c., so that it was everywhere lawful for any white man to seize such a one and treat him as an article of property. The law of nations, as set forth in the preceding chapters, never embraced such a doctrine. If his meaning is that a sovereign state, having jurisdiction over the person of a negro, was not bound to respect in him any rights-the same may as truly be said of any white man: any ethical distinction that may exist cannot affect the matter.

* With the use of the term law of nations in the text, contrast that given to it in Neal v. Farmer, 9 Geo., R. 570, 571; where the court in asserting the legality of slavery independently of statute or the common law of England, ascribes it to "the law of nations" in the sense of public international law-a law of which nations are the subjects. On the other hand see Mr. Seward's use of the law of nature and of nations, ante, p. 193, n. Such contradictions in the premises used by eminent jurists are here appealed to as vindicating the necessity of that discrimination of terms which was attempted in the first chapter.

Granville Sharpe, in his Tract on the Law of Nature, London, 1777, p. 3, takes the jus gentium in respect to slavery as being contrary to the law of natural right recognized by the Roman law, quoting Inst. I. Tit. III. § 2. Servitus est autem constitutio juris gentium qua quis dominio alieno contra naturam subjicitur. Bracton having repeated the same, Lib. I., cap. 6, and Fleta, Lib. I., cap. 3, they are, with Cowell's Institutes, quoted by Sharpe as proving that slavery is contrary to the rule of natural reason received in the common law. The method followed by this writer to prove a doctrine of the common law of England, is the same as that which is indicated in this chapter and the preceding. But the law of natural reason on this point, deducible from the Institute, is precisely the reverse of that for which he refers to it, as has been shown in the preceding chapter.

The doctrine supporting chattel-slavery must be held to have limited the extent of the term "colonists," where used in the charters to describe the subjects of privilege and guarantee, to legal persons as distinguished from slaves; even if it did not go farther and confine the term to whites, or persons of the European race, to the exclusion of Africans and Indians, whether bond or free.1

§ 203. It has been shown, in the third chapter, that, where the guarantee of common law rights did not apply to determine the relations and rights of private persons, the power of sovereignty to affect such relations and rights must have been divided between the local government of each colony and the imperial government; that the limits of each were, unavoidably, always undetermined; but that, admitting the rights and obligations of the colonists in internal relations (relations between persons regarded as domiciled inhabitants) to have been essentially within the powers of the local governments, yet such as were incident to relations of commerce and international intercourse must have been, to the greater extent, within the general control of the parliament and crown of England. There does not appear to have been any act of positive legislation, proceeding from the imperial authority, which determined the condition of Africans or Indians within the colonies, considered either as alien or domiciled persons. There are statutes, however, which, being interpreted by the " usage and custom of merchants" as prevailing at that time, have always been held to support sla

1

Compare the language of the Supreme Court of Pennsylvania in Hobbs v. Fogg, 6 Watts' R. 558-560, when limiting the personal extent of the term freeman.

See ante, § 131. To this power may be referred the frequent rejection of colonial laws restricting the introduction of African slaves. Davis v. Curry, 1810. 2 Bibb's Rep.(Ky.,) 238-By the Court: "Slavery, it is believed, was introduced into the colonies by the regulation of the mother country, of which the courts in all the colonies were equally bound to take notice, in the same manner as the courts of the several states are now bound to take notice of any regulation of the general government; and what the courts of the colonies were bound to take notice, judicially, we must still be presumed to know, if not as matter of law, at least as matter of history." Though the condition of slavery in the colonies may not have been created by the imperial legislature, yet it may be said with truth, that the colonies were compelled to receive African slaves by the home government. See Brougham's Col. Pol., B. II., § 1. 3 Banc. 411. Stevens' Georgia 285. 2 Tucker's Bl. app. II. Madison Papers, III., 1390. Walsh's Appeal, 310-319. Lord Stowell in 2 Hagg. Ad. R. 109.