Compulsory manumission

by Alexander McDonnell

On the faith of these enactments, large investments on mortgage have been made. Slaves are recognised in them, as property in fee-simple, absolute, which has been confirmed by decisions in our courts, both of law and equity. Consequently, all mortgagees rest their security not on Colonial enactments, but on British Acts of Parliament; and the law relating to mortgaged property in the colonies must be analogous to the law relating to mortgaged property in England.

By the law of England, when woods or messuages are included in a mortgage, none of those woods or messuages can be sold or alienated, either collectively or in part, by the mortgagor, or by any other known authority, even though the proceeds of such sale should be appropriated to the benefit of the mortgagee, without the express consent and concurrence of the latter; the law giving to him the sole privilege of determining as to whatever may affect his security.

By the same law of England, when slaves are expressly specified in a mortgage on West India property, neither the proprietor, nor any other known authority, can legally sell such slaves, even though the proceeds be applied in liquidation of the mortgage, unless it be with the previous consent of the mortgagee.

Yet it does not appear, that Earl Bathurst has explicitly provided for the claims of the mortgagee, who has lent his money in the firm reliance that the law has guaranteed, both to himself and to the mortgagor, the full effects of the stipulation of the mortgage contract.

But if the slaves, being in law real property, on which the mortgagee holds a lien, be permitted at their will to separate themselves from the plantation, it must weaken the security of the mortgagee, by removing the instruments through which the fixed capital was rendered productive, and by the employment of which for the benefit of the mortgagor, there was a reasonable confidence that the mortgage might ultimately be redeemed.

And in regard to the purchase-money paid by the slave to his owner, as the price of his liberation, if the amount go at once into the hands of the mortgagee, it is an injustice to the debtor, because he had a right to expect a rate of profit from his cultivation, much higher than the mere interest paid for his loan; and it is illegal, because it is beyond the terms of his contract with the mortgagee.

If, again, the money be deposited in some public chest, it is illegal and unjust to both parties: unjust, because the removal of an efficient hand entered not into the calculations of the owner of the plantation, and by the decrease of its produce from subtracted labour, he finds his debt not diminishing but growing larger, while the mortgagee runs the risk of losing his money;—illegal, because the stipulation forms no part of the mortgage contract.

When we show that illegality is added to injustice, we may close the case on the part of the proprietor.

Let us sum up the objections.

If not one man is freed, compulsory manumission changes his good slaves into bad ones. If any are freed, he gets inadequate remuneration for their loss. It unjustly makes the burdens on his estates perpetual; and in case of mortgages, is contrary to the statute-law of the realm.