The Kansas herald of freedom., 1855-02-24

Dut only Dy poSIl'e law.
This was followed up in 1924 By the
: case of Forbes against Cochrane, in which
the same doctrine is affirmed, and Hol
: royd, Justice, says:
81 am of the opinion that, according
} to the principles of the English law, the
: right to slaves, even in a country where
: isuch rights are recognized by law, must
be considered as founded not upon the
law of nature, but upon the particular
! law of that country
i The same principles have been held in
the prize courts of England, where the
law of nations was administered. That
eminent Jud dge, Lord Stowell, in the case
OF Fortuna, SAYS, in substance: The
slave trade is repugnant to the law of ma
ture, but tolerated by the municipal laws
of some nations but it puts upon the
parties who are found in the occupations
of that trade the burden of showing that
it was so tolerated and protected. And
he quotes with marked appreciation the
, language of decision made by Sir VIII
!. liam Grant, as follows:
GA claimant can have no right, upon
principles of universal law, to claim the
restitution, in a prize court, of human
beings carried as slaves"
Again, in the case of the Diana, the
same learned Judge held that
1t lies on the individual making the
claim that is to slaves to show that the
law of his country countenances the slave
trade"
A different inference, / know, is drawn
from some observations which fell from
Lord Stowell in the case of the slave
Grace; but an examination will show
that his lordship based his remarks in
that case, not upon different view of
the law of nature, but upon the fact that,
as matter of history, the purchase and
sale of African slaves, and their tempo
rary sojourn in the island of Great Britain,
had been tolerated.
These are the only English authorities
to which l shall refer, although there are
abundance of others, Although in our
courts of justice they carry with them
the greatest weight, yet fear that before
this body, and upon this particular SUBJ
lject, they will not receive that considera-
ton to which they are entitled. l turn,
then, to the decisions of our own law
yers. The first case to which / shall al
lude was decided in Virginia, in 1892,
and is reported in 1st Washington's Re-
ports. 1t seems that in that State Indians
as well as negroes were held as slaves;
and in reference to the right so to hold
them, and its origin, the learned Judge
speaks as follows: a
"In the record there is a certificate of
the judges, stating: That the defendants
counsel, in his argument, insisted much
upon clause in an act of Assembly, en-
titled an act for the government of ser
wants and slaves passed in the year
1853, which enacted that all persons
who have been, or shall be imported into
this colony by sea or land, and were not
Christians in their native country, Tex
cept Turks and Moors in amity with his
Majesty, and such who can prove their
having been free in England, or any other
Christian country, before they were ship
ped for transportation hither, shall be
accounted, and be slaves, and as such, be
here bought and sold, Notwithstanding a
conversion to Christianity after their i'm
portation:' and argued from thence that
all Indians, as well in America as else
where, not particularly excepted in that
!: clause, might be sold as slaves: that the
court informed the counsel that he mis-
stated the law; that there was time, at
some period in the last century, when a
law was in existence which declared In
dians at war with the people of this coun-
try, slaves, when taken prisoners: that
under that law, many Indians were made
slaves, and their descendants continue
slaves to this day; but that this law was
some time after repealed; from which
period, no American Indian could be sold
as slave, and that all such as had been
brought into this country since that time,
and who had sued for their freedom, had
uniformly recovered it. That the same
counsel still insisted upon his former ar
gument, and considering the courts ad-
dress to the bar as a misdirection to the
) jury, had prayed this certificate to be en-
tered at the foot of the judgment. -
Judgment affirmed.
! Upon what principle is this decision
! based? Certainly upon the ground that
Indians taken eaptives in war could be
i reduced to slavery, except in consequence
| of a Legislative act of the colony of Vir-
ginia; and when the act was repealed,
leaving the law of nature alone to its full
operation, they could no longer be made
, slaves. And all who, under such cir.
cumstances, sued for their freedom, had
i uniformly recovered it. There is another
, case, in the same volume, which viii
: not weary the committee by reading. In
it the Judge gives general resume of al
| the laws which had been passed in the
colony in reference to the enslaving Of
/ Indians and negroes, showing, ineontro.
) vertibly, that at that day slavery was con,
: sidered to rest entirely upon the positive
|; laws which had been enacted to sustain
/ and control it, and that there was no Other
/ source to look to for its existence.
The next case bearing upon the point
i u viii cite from the Kentucky Reports O
: 1910. The question was raised whether
} it was necessary for a master claiming {
slave, who was admitted to have beer
brought from Delaware, to prove the ex
D istence of a law in Delaware toleratins
E slavery. Charles ]. Boyle decided tina
it was not necessary; but the ground mp
on which the decision was made renders
3 it applicable to the point at issue. HI
i says thai slavery was originally intro
/, dueed into the colonies by regalatio,
(mark the word of the mother country
of which the courts of all the colonies
! we're equally bound to take notice; anc
: what the courts of the colonies ger.
: bound to notice, the courts of the State:
t were bound to know, and as such law,
were not repealed by the Revolution, they
, must be presumed to exist until the con
trary is shown. Thus leaving US neces
sarily to infer that, had it not have beer
for tho known law of the State of Della
: ware anterior to the Revolution, the bur