Slavery derives from, is in the context of, and involves force, violence, assault, battery, extortion, detention. So, described that way, in its true nature, it is always illegal. The only reason people think 'slavery' is legal, is simply by their hearing, seeing, using, taking that one word, 'slavery,' out of that context.
Even out of context, under the "common law," since the English Magna Carta (1215), persons being detained have a right to know the charges. A person being detained, can force his being released by demanding to be informed of the charges; if not, release is instant. The process is called getting a writ of habeas corpus.
The case is James Sommerset v Charles Stewart. This site has the text of the legal papers, and court decision, by the "King's Bench," Lord Chief Justice Mansfield [1705-1793] presiding, in 1772, freeing the slaves, pursuant to the British Constitution.
For U.S. readers, the "King's Bench" may be deemed comparable to the U. S. Supreme Court.
That court, the King's Bench, ruled, saying it in modern words, that slavery was unconstitutional, meaning, not listed, not expressly provided for, not authorized in so many words, by a written enabling clause.
The Somerset precedent was to be followed in America "because the precedent had become part of American common law."—William M. Wiecek, "Somerset's Case," Encyclopedia of the American Constitution, Leonard W. Levy and Kenneth L. Karst, eds. (New York: Macmillan Reference USA, 2000), Vol 5, pp 2451-2452.
Unfortunately, the venerated "Founding Fathers" decided to react to that decision finding slavery unconstitutional, the same way that many Southerners reacted a couple centuries later, when the Supreme Court found segration unconstitutional (Brown v Board of Education, 347 US 483; 74 S Ct 686; 98 L Ed 873 ). The "Founding Fathers" decided to rebel!
If the "Founding Fathers" and the American colonies had obeyed the Somerset decision, i.e., the Constitution, there would have been no more slavery, no more slaves! Any purported slaves would have been freed, and there would have been no Civil War. But the U.S. instead began a Revolution, so paid no heed to the then-known, but now little-known, decision. (Due to the U.S. South having disproportionate control and censorship of U.S. textbooks, you probably never were taught about this case, nor any other facts about slavery's unconstitutionality).
|You can now get around and circumvent that textbook censorship policy thanks to the Internet. You can now view the decision and legal papers ("brief") in the case
not just at some major law library's obscure cases book department of which you were never taught even existed!
The case was deemed so newsworthy and significant in the 1770's, that the legal argument was published by one of the lawyers, Francis Hargrave (1741-1821); and the decision was published by three different publishers, by Lofft starting on page 1; by Howell in the Howell's State Trials series, volume 20, starting on page 1 with the decision on pages 79-82; and by the English Reporter, volume 98, starting on page 509.
The version posted here is the fullest, from Howell's text. The other publishers reprinted only portions of the material. Howell's full text version (reprinted here) includes the legal briefs by the plaintiff and defendant, and historical data and context, not just the decision. In addition, instead of merely citing pertinent precedents' titles, Howell reprinted large portions, and the legal briefs in those cases also. This was in essence an encyclopedia of precedents and historical context, well beyond a normal case report such as the other publishers had done. The other publishers had provided less context, significant as here the decision was a mere three pages, at pp 79-82.
|The pagination used here is Howell's. Page numbers from other publishers are inserted in brackets when available.
Wording style then is different than nowadays, examples,
Although the original had no 'table of contents,' modern readers expect one, in a document of this length, so one has been inserted here, for your convenience.
||The Knight v Wedderburn Precedent||2
||Ship Captain Knowles' Affidavit||7
||Wrongful Imprisonment/Speedy Trial Act of 1701||19
||Argument of Mr. Francis Hargrave for the Negro||23
||Short State of the Case||23
||Points Which Arise in the Case||24
||General Observations on Domestic Slavery||25
||Difficulty of Defining 'Slavery'||25
||Properties Usually Incident to Slavery||26
||Bad Effects of Slavery||26
||Opinions of Some Modern Writers
||Origin of Slavery, and Its||27
||Decline of Slavery in Europe||33
||Revival of Domestic Slavery in America||34
||The Attempt to Introduce the Slavery||35
||Arguments to Prove That the Law of||35
||1. Argument from the Manner||35
||2d. Argument Against a New Slavery from the Fact
of There Never Having Been Any Slavery But
Villenage, and from the Extinction of That Slavery
||3rd. Argument Against A New
Slavery From the Rules of Law
Against Slavery By Contract
||Examination of the Cases on the
Subject of Slavery Since or Just
Before the Extinction of Villenage
||Objections Likely to Be Made to the
Arguments Against the Present [Un]Lawfulness
of Slavery in England, Stated and Answered
||Stewart's Authority to Enforce His Right to
the Negro by Transporting Him Out of England
||Arguments of the Other Counsel||67
||Mr. Alleyne's Statement||67
||Mr. Wallace's Statement||69
||Dunning's Argument for Ship Captain Knowles||71
||Serjeant Davy's Response||76
||Preliminary Statement by Judge Mansfield||79
||D E C I S I O N||80
548. The Case of JAMES SOMMERSETT, a Negro, on a Habeas
Corpus,* King's Bench: 12 GEORGE III. A.D. 1771-72.
Of this Case only a Statement of the Facts, and Mr. Hargrave's learned Argument were inserted in the former edition of this Work. I have here added the other Arguments, and the Judgment of the Court, from Lofft's Reports, in which is a Note of the Case under the name of Sommersett against Stewart.
ON the 3d of December 1771, affidavits were made by Thomas Walklin, Elizabeth Cade, and John Marlow, that James Sommersett, a negro, was confined in irons on board a ship
Of these two cases the following reports are printed from the "Dictionary of Decisions," tit. "Slave," vol. 33, pp. 14,545, et seq.:
A Negro, who had been bought in Virginia, and brought to Britain to be taught a trade, and who had been baptized in Britain, having claimed his liberty, against his master Robert Sheddan, who had put him on board a ship, to carry him back to Virginia, the Lords [Ed. Note, judges] appointed counsel for the negro, and ordered memorials [Ed. Note, briefs], and afterwards a hearing in presence, upon the respective claims of liberty and servitude by the master and the negro.
But during the hearing in presence [court], the negro died; so the point was not determined.
*The very important matters which this case involved, viz. first. The rights over the person of a negro resident here, claimed by another person as the owner of the negro; and, supposing such rights to exist, secondly, The extent of them; and thirdly, The means of enforcing tbem, were, I believe, never, except in this case, made the subject of a suit at law in England. But in Scotland two cases of this sort have occurred before the Court of Session; 1, That of Sheddan against Sheddan, A. D. 1756; 2. That of Knight against Wedderburn, A.D. 1775—1778.
Of these two cases the following reports are printed from the "Dictionary of Decisions," tit. "Slave," vol. 33, pp. 14,545, et seq.:
A Negro, who had been bought in Virginia, and brought to Britain to be taught a trade, and who had been baptized in Britain, having claimed his liberty, against his master Robert Sheddan, who had put him on board a ship, to carry him back to Virginia, the Lords [Ed. Note, judges] appointed counsel for the negro, and ordered memorials [Ed. Note, briefs], and afterwards a hearing in presence, upon the respective claims of liberty and servitude by the master and the negro.
But during the hearing in presence [court], the negro died; so the point was not determined.
Mr. Knowles on the 9th of December produced the body of Sommersett before lord Mansfield, and returned [Ed Note, claimed that] for cause of detainer, that Sommersett was the negro slave of Charles Stewart, esq. who had delivered Sommersett
The commander of a vessel, in the African trade, having imported a cargo of negroes into Jamaica, sold Joseph Knight, one of them, as a slave, to Mr. Wedderburn. Knight was then a boy, seemingly about twelve or thirteen years of age.
Some time after, Mr. Wedderburn came over to Scotland, and brought this negro along with him, as a personal servant.
The negro continued to serve him for several years, without murmuring, and married in the country. But, afterwards, prompted to assert his freedom, he took the resolution of leaving Mr. Wedderburn's service, who, being informed of it, got him apprehended, on a warrant of the justices of peace. Knight, on his examination, acknowledged his purpose. The justices found "the petitioner entitled to Knight's services, and that he must continue as before."
Knight then applied to the sheriff of the county, (Perthshire), by petition, setting forth, 'That Mr. Wedderburn insisted on his continuing a personal servant with him,' and prayed the sheriff to find, 'That he cannot be continued in a estate of slavery, or compelled to perpetual service; and to discharge Mr. Wedderburn from sending the petitioner 'abroad.'
|After some procedure in this process, the sheriff found, 'That the state of slavery is not 'recognized by the laws of this kingdom, and is 'inconsistent with the principles thereof; that 'the regulations of Jamaica, concerning slaves, 'do not extend to this kingdom; and repelled 'the defender's claim to a perpetual service.' Mr. Wedderburn having reclaimed, the sheriff found, 'That perpetual service, without wages, is slavery; and therefore adhered.'
The defender removed the cause into the court by advocation. The lord ordinary took it to report, upon informations. Being a question of general importance, the Court ordered a hearing in presence, and afterwards informations of new, upon which it was advised.
Pleaded for the Master: That he had a right either to the perpetual service of the negro in this country, or to send him back to the plantations from which he was brought. His claim over the negro, to this extent, was argued on the following grounds:
The productions of the colonies, ever since they were settled, have been cultivated by the means of negro slaves imported from the coast of Africa. The supplying the colonies with these slaves has become an extensive trade; without which, the valuable objects of commerce, now furuished by the plantations, could not be cultivated. British statutes have given sanction to this trade, and recognized the property of the master in such slaves; 10th W. 3, c. 26; 5th Geo. 2, c. 7; 23d Geo. 2, c. 3.
"The property which, in Jamaica, was established in the master over the negro, under these statutes, and the municipal law there, cannot be lost by a mere change of place. On principles of equity, rights acquired under the laws of foreign countries are supported and inforced by the courts of law here. A right of property will be sustained in every country where the subject of it may come. The status of persons attend them wherever they go; Huber, lib. 1, t. 3, c.12.
"The law of the colonies is not to be considered as unjust, in authorizing this condition of slavery. The statutes which encourage the African trade show, that the legislature does not look on it in that light. The state of slavery is not contrary to the law of nations. Writers upon that law have enumerated several just and lawful origins of slavery; such as contract, conquest in a just war, and punishment of crimes. In cases where slavery is authorized by the laws of Jamaica, it must be presumed to have proceeded on a lawful origin. The municipal law of no country will be presumed unjust.
"A state of slavery has been universally received in the practice of nations. It took place
|in all the ancient nations, and in all the modern European nations, for many ages. In some of them it still remains; and in none of them has it been abolished by positive enactments, declaring it unjust and illegal, but gone into disuse by degrees, in consequence of many different causes. Though, therefore, the municipal law of this country does not now admit of this state of slavery in the persons of citizens, yet, where foreigners, in that state, are brought into the country, the right of their masters over them ought not to be annihilated.
"In this case, the master is not insisting for the exercise of any rigorous powers. He only demands, that he shall be entitled to the personal services of the negro, in this country, during life. His right to this extent, at least, is not immoral or unjust; nor is it even reprobated by the municipal law of this country. A person may bind himself to a service for life; Ersk. Inst. b. 1, t. 7, § 62.
But, in the last place, if this is denied, the master must, at least, be permitted to compel the negro to return to the plantations, from whence he was brought; otherwise be is intirely forfeited of his right.
"Some cases from the English law-books were adduced to show, that, in England, the master's right of property in his negro remains after he is brought, into that country; Butts contra Penny, 1677; Keble's Rep. p. 3, p. 785. Gilly contra Cleves; 5th William and Mary, lord Raymond, Rep. 5, p. 147; and the opinion of two very eminent lawyers, in the year 1729, sir Philip Yorke, then attorney-general, and Mr. Talbot, solicitor-general, in these words:
"We are of opinion, that a slave, by coming from the West-Indies, either with or without his master, to Great Britain or Ireland doth not become free; and that his master's property or right in him is not thereby determined or varied; and baptism doth not bestow freedom on him, nor make any alteration in his temporal condition in these kingdoms. We are also of opinion, that the master may legally compel him to return to the plantations."
Answered for the Negro: The only title on which any right of dominion is claimed over this African, is the institution of the municipal law of Jamaica, which authorizes the slavery of Africans brought into that island. Under that law, this negro, a child when brought into Jamaica, while he remained there, was subjected to the unjust dominion which it gives over these foreigners, but the municipal law of the colonies has no authority in this country. On grounds of equity, the Court, in some cases, gives effect to the laws of other countries; but the law of Jamaica, in this instance, will not be supported by the Court, because it
|is repugnant to the first principles of morality and justice.
"Subordination, to a certain extent, is necessary; but there are certain bounds, beyond which, if any institution, subjecting one individual to another, should go, the injustice and immorality of it cannot admit of a doubt. Such is the institution of slavery, depriving men of the most essential rights that attend their existence, and which are of a nature that admit not of any equivalent to be given for them. The most express consent, given in a voluntary contract, cannot authorize the assuming of these rights, or bind the consenting party to submit to the condition of a slave. A stipulation of that kind affords intrinsic evidence of an undue advantage taken, and is therefore sufficient to void the contract.
But although it were justifiable to admit of a slavery proceeding on a title of contract, of conquest, or of punishment, the law of Jamaica would not be the less unjust. In subjecting the Africans to slavery, that law requires no title under any of these grounds. The circumstance, that the negroes are brought into Jamaica, is all that is requisite to fix on them indiscriminately the condition of slavery. It is, therefore, a slavery established on force and usurpation alone, which no writer on the law of nations has vindicated as a justifiable origin of slavery.
If the law of Jamaica had made any distinction, or required any title to the slavery of an African, this negro would never have been reduced by it to that state. Being a child when he was brought into Jamaica, he could enter into no contract, commit no crime, and conquest cannot give a right to kill or enslave children.
"The means by which those who carried this child from his own country got him into their hands, cannot be known; because the law of Jamaica makes no inquiry into that circumstance. But, whether he was ensnared, or bought from his parents, the iniquity is the same.—That a state of slavery has been admitted of in many nations, does not render it less unjust. Child-murder, and other crimes of a deep dye, have been authorised by the laws of different states. Tyranny, and all sorts of oppression, might be vindicated on the same grounds.—Neither can the advantages procured to this country, by the slavery of the negroes, be hearkened to, as any argument in this question, as to the justice of it. Oppression and iniquity are not palliated by the gain and advantage acquired to the authors of them. But the expediency of the institution, even for the subjects of Great Britain, is much doubted of by those who are best acquainted with the state of the colonies; and some enlightened
|men of modern times have thought, that sugar and tobacco might be cultivated without the slavery of negroes.
The dominion, therefore, given by the law of Jamaica over the pursuer, a foreigner there, being unjust, can receive no aid from the laws of this country. The modification proposed of this claim of slavery, makes no difference on the merits of the question. It is plain, that, to give the defender any right over the pursuer, the positive law of Jamaica must always be resorted to; consequently, the question recurs, Whether that law ought to be enforced beyond its territory? But a service for life, without wages, is, in fact, slavery. The law of Scotland would not support a voluntary contract in these terms; and, even where wages are stipulated, such a contract has been voided by the Court; Allan and Mearns contra Skene and Burnet, No. 5, p. 9454, voce Pactom lllicitum.
The answer was given to the other claim, of sending the negro out of this country, without his consent, that it supposes the dominion given over the pursuer by the law of Jamaica to be just. The negro is likewise protected against this by the statute 1701, c. 6, which expressly prohibits the carrying any persons out of the kingdom without their consent. The words are general, and apply to all persons within the realm.
But the late case of Sommersett, the negro, decided in the King's-bench, in the year 1772, was chiefly relied on, and said to be in point; at least upon this question, Whether the negro could be sent out of England?
"I, John Knowles, commander of the vessel called the Ann and Mary in the writ hereunto annexed, do most humbly certify and return to our present most serene sovereign the king; that
|mentioned below] from being sent out of the country against his consent.—The judgments of the sheriff were approved of, and the Court remitted the cause simpliciter.
I [Ed. Note, the case publisher] have been favoured with the use of six 'Memorials' or 'Informations' which in the course of these two litigations were delivered into the Court of Session. Five of them appear to have been prepared by men of very high eminence in their profession, one for Sheddan the negro by Sir David Dalrymple, afterwards a judge with the title of Lord Hailes; two for Knight the negro, by Mr. M'Laurin, afterwards lord Dreghorn, andMr. Maconochie, now Lord Meadowbank, and two for Wedderbarn (Knight's master), by Mr. Ferguson, afterwards Lord Pitfour, and Mr. Cullen, afterwards Lord Cullen, respectively; they display a copiousness and variety of curious learning, ingenious reasoning and acute argumentation, intimately connected with the case now before us.
With respect to 'Memorials' or 'Informations,' in causes depending in the Court of Session, and to the general course of proceeding in that court, see the Edinburgh Review for January 1807. For the alterations which in the year 1808 were made in the constitution of that court, see stat. 48 G. 3. c. 151.
Mr. [Daines] Barrington [1727-1800], in his Observations on stat. 1 Rich. 2, (note [y] in the third edition) mentioned that "many of the labourers in the salt-works and collieries in Scotland still continue "glebæ adscriptitii" and cannot be hired without the proprietor's consent." And as to this he referred to a case in the Dictionary of Decisions, vol. 1, p. 312. I know not what case that was. In Morison's Dictionary of Decisions there are under title Coalier twelve cases, in all of which the servile condition of the class is recognised.
In the Memorials which were presented in the case of Knight v. Wedderburn, the condition of the coalliers and salters of Scotland was considered. I will here insert what was said of it by Lord Meadowbank and Lord Pitfour.
"The defender," observed the first of those learned persons, "has mentioned the situation of coalliers and salters as an evidence, that the law of Scotland is not repugnant to slavery. It has been already shown, that although villenage still existed, although this high court would even now record an acknowledgment of villenage, and although other kinds of slavery were adopted by the laws of this country, yet that the common law could not be understood to favour the defender's claim. As long as the common law acknowledges the law of nature to be its great principal and rule, so long, must it reject a claim to a right of property in a man, or in his labour and industry, founded in his being born of a captive or a criminal, or in his"
|"being seized on violently by a third person, and sold to the claimant. It has, however, been urged, that coalliers and salters are living proofs of the former prevalence of villenage; it is, therefore, not unnecessary to bestow a few observations on their situation; the use of pit-coal is of so late invention that villenage must, at any rate, have disappeared in Scotland long before the working of coal could have become a profession. Purchas (in vol. 3, p. 88, of his collection) giving an account of Marco Paolo's travels, has the following curious passage extracted from them: |
'Throughout the whole province of Katai (China), certain black stones are digged out of the mountains, which, put into the fire, burn like wood, and being kindled, preserve fire a long time; as if they be kindled in the evening, they keep quick fire all the night; and many use those stones, because, that though they have store of wood yet there is such frequent use of stones and loathes thrice every week that the wood would not serve.'The same observation is transcribed into the Histoire Générale de Voyages, tom. 9, p. 356. It was one of the circumstances, which, at the publication of Paolo's travels, was considered as a proof that they were fabulous.
There is a passage in Æneas Sylvius' (afterwards Pope Pius 2.) account of Europe, which shows more directly, that the use of pit-coal must have been very rare and very inconsiderable in his time even in Scotland. Treating of Scotland, he observes, that he was here (as a legate) in the time of Jacobus quadratus, and enquired about a miraculous tree, which had been said to grow in Scotland: He adds,
It is plain, from this account, that coals must have been very rare in Scotland. It otherwise would have been quite absurd to take notice of them only as used by beggars. Besides, he observes, that they were only used where the country was barren of wood; and it is well known, that Scotland was, during the reigns of the Jameses, very much covered with it; so there could be very little occasion for coals. On the other hand, as there are regular records extant, from the days of James 1, it is impossible that villenage could then have existed, without sufficient evidence concerning it appearing in the acts of parliament, charters, transfers of property, and various deeds among mdividuals, which are handed
|down to us. It is therefore plain, that the profession of coalliers did not commence early enough to have received the remains of the ancint villeins. The circumstances of a coallier likewise indicate a very different origin.
"Coalliers are not born adscriptitii. A coal brewer is a profession which is voluntarily embraced, and, like other professions, is regulated by particular laws, which are more or less strict, according as the interest of the public is thought to require. The wages of a coallier, like those of labourers in any other profession, that is by its nature exclusive, are higher than common workmen receive. He acquires property, and transmits it; and has been found, by the case of Rutherglen, decided 20 February 1747, intitled, as well as any other subject, to be a counsellor of a burgh; he must, with equal reason, be capable of being elected a member of parliament. These particulars are sufficient evidence, that the condition of a coallier is perfectly different from that of a villein. The art of working coal successfully requires long practice to attain, and is prejudicial to the health of those who are not early accustomed to it. It was, therefore, extremely natural, when coal works were begun to be set on foot, that the proprietors should, in return for the high wages they gave the workmen, take them bound to continue in their service for a long term of years, or for life; accordingly we find, that it was at first customary to take such bonds from coalliers; and, it is known, tbat the practice continued after the intervention of parliament had superseded the necessity of it.
"These observations, the pursuer humbly apprehends, sufficiently explain any thing particular in the state of coalliers. In the infancy of improvement men are apt to adopt expedients for removing the obstructions it meets with, and other evils which they feel, but the nature and effectual remedies of which they do not comprehend. Thus incorporations and monopolies on the one hand, and on the other, restraints on the members of incorporations and of monopolists have originated. In the same way it was very natural to seek a curb for the indolence or capriciousness of coalliers, whose high wages, like those of many other kinds of workmen, disposed then to idleness, faction, or arrogance. All regulations, however, framed with such views, are evidently commercial, and never can be construed as either favouring liberty or slavery, any more than the act of navigation, or any other thing of the same nature. It might be proved, that an advocate was a slave on the same principle as a coallier. The acts 1537, c. 64, and 1587, c. 91, oblige an advocate to plead causes whether he chooses or not; if, in the one case, a client, and in the other, the court pleases to in-
|sist on it: yet, it is not believed, tbat these statutes were ever urged as inductive of slavery. The same observations are in general so applicable to the state of salters, that it is unnecessary to consider it."
On the part of the defender it was argued by Mr. Ferguson (Lord Pitfour,) "There still exists in this country a species of perpetual servitude, probably the remains of the original adscriptitii glebæ, or villeins, which is supported by late statutes, and by daily practice, viz. That which takes place with regard to the coalliers and salters, where, from the single circumstance of entering to work after puberty, they are bound to perpetual service, and sold along with the works; and indeed, in our law, there are several other examples of persons being bound to servitude during their lives. The act of parliament 1597, cap. 272, enacts, 'That stark beggars and their bairns be employed in common works, and their service, mentioned in the act of parliament 1579, to be prorogate during their lifetimes.' And, without going further, it is the case with every soldier and sailor, the former of whom is shot, if be endeavours to make his escape at any period of his life, by express law; and the sailor is subjected, during the same space by a practice universally admitted, to be seized by force, and sent against his will to the remotest corners of the world.
"The pursuer is pleased to argue, that the coalliers and salters are not a remains of villenage; and his argument for this is, that the use of coal in Scotland is so late a discovery, tbat it must have taken place long after villenage disappeared: and to prove this, be cites a passage from Marco Paolo, and another from Æneas Sylvius; from which it would appear, that these authors had been unacquainted with that mineral, till the former saw it in China, and the latter in Scotland. And (the pursuer adds,) Æneas Sylvius observes, that coal was only used in Scotland where it was barren of wood; and as it is well known that, during the reign of the Jameses, Scotland was very much covered with wood, there could be very little occasion for coal.
"This circumstance seems to be little connected with the present question; but the pursuer's arguments appear to have no tendency to prove that the state of the coalliers in Scotland is not a continuation of the ancient villenage. By the charter above recited, that institution is traced down to the year 1368; and in all probability it continued a considerable time longer. Marco Paolo went to China about 100 years before that; so surely no inference can be drawn from the Italians being unacquainted with coal in the year 1270, tbat this mineral was not discovered in Scotland before the year 1368.
|"Æneas Sylvius [1405-1464] was in Scotland in James the 1st's time. The defender does not know if the pursuer means by the expression of Jacobus quadratus to insinuate that it was in James the 4th's time; but if he does so, it's a mistake, for Æneas Sylvius died pope in  the 5th year of James 3, viz. 23 years before James 4 succeeded; and there is no doubt that his journey to Scotland was in James the Ist's time, probably about the year 1430. He then describes coal to have been in common use in Scotland; and it would appear very odd if there had been no coal-pits in Scotland 60 years before that, to which the charter above recited brings down the existence of villeins or nativi.
"The quotation therefore from Æneas Sylvius is a proof of the direct contrary of what the pursuer endeavours to infer from it.
"The circumstance of two Italians being surprised at seeing pit-coal affords no presumption that it had not been used for many centuries in Scotland. It happens every day, that Englishmen are not believed in that country, when they describe our coal to them even at present.
"The defender does not know what the pursuer means by asserting, that it is well known, Scotland was very much covered with wood during the reigns of the Jameses. As Æneas Sylvius, who was an eye-witness, declares, that in the time of James 1, it was perfectly bare of wood; and it is exceedingly probable, that the immemorial use of pit-coal before that period, had induced the inhabitants to cut down all the wood, without leaving or providing sufficiently for that kind of fuel.
"It is needless to enter, with the pursuer, into the disquisition, whether the state of coalliers be a severe kind of slavery or not; as it is certainly much more so than that to which the defender claims to reduce him."
It is perhaps worthy of notice in this place, that though the memorial of Mr. Maconochie (lord Meadowbank) bears date April 25, 1775, and that of Mr. Ferguson (lord Pitfour) bears date July 4, 1775, no notice is taken of the Statute 15 Geo. a, c. 28, by which after reciting that by the statute law of Scotland, as explained by the courts of law there, many coalliersand coal bearers, and salters, are in a state of slavery or bondage, bound to the collieries and salt works, where they work for life, transferable with the collieries and salt works, when their original masters have no farther use for them, it is enacted, that colliers, coal bearers, and salters, shall not be bound to any colliery or salt work, or to the owner thereof, in any way or manner diffterent from what is permitted by the law of Scotland, with regard to servants and labourers.
This statute, it appears, by the Lords' Jour-
|nal, was passed on the 23d day of May, 1775. After which, it seems (see Mr. Benet's account of Dudingston, in the 18th vol. of sir John Sinclair's Statistical Account of Scotland, p. 370., that the coal masters strove to insure the dependence of their coalliers, and consequently the perpetuity of their services, by seducing them into their debt: to remedy which, by stat. 39 Geo. 3, c. 56, among other provisions respecting colliers in Scotland, ii was enacted, 'That no action shall be competent for money advanced by, or on behalf of coal owners or lessees to colliers, except for support of their families in case of sickness,' in which case a specific mode of procedure is provided.
In the negro case in France, which, under the title of 'La Liberte reclamée par un négro contre son maitre qui I'a amen é en France,' is reported in the 13th vol. of 'Les Causes Célébres,' &c. p. 492, edit. of 1747, and which I apprehend was determined in the year 1738, or soon afterwards, the questions before the Court appear to have been,
For though M. le Clerc, Procureur du Roi, did indeed mention, that neither the edict of March 1685, nor that of October 1716, had been registered in the parliament of Paris, or transmitted to the proper officer of the court of admiralty, yet it very clearly appears, that he did not lay much stress on these topics.
But the eloquence of M. le Clerc and the other advocates who argued the case expatiated far beyond the narrow limits of the dry and uninteresting questions of mere positive law which I have stated. The powers of their learning and of their oratory were called forth in all their vigour, to describe the character and narrate the history of slavery, to display its incongruity with the benevolent doctrines of Christianity, and above all to impress upon their hearers, that slavery was utterly and irreconcilably opposite to the nature of France and of Frenchmen, and to the original priuciples and established administration of their constitution and government; insomuch, that to touch the soil or to inspire [breathe] the air of France was to be free. Throughout the arguments this last position not only was undisputed by either party, hut was by all parties either assumed, or admitted, as the incontrovertible as-
sertion of a notorious fact. Yet at the same time, it was on all sides propounded and inculcated, with a diligence and copiousness of repetition, which is not commonly expended upon the maintenance of indisputable truths.
I have extracted from the report the following passages, which, I believe, will sufficiently confirm what I have stated. They may also afford amusement, if not instruction, by exhibiting the complacency—perhaps I should rather say the triumph—with which, under the reign of Lewis the 15th [1715-1774], the descendants of the ancient Franks could rhapsodise concerning liberty:*
"Il s'est toujours regardé comme libre, depuis qu'il a mis le pied en France," p. 495.
"Dès qu'un esclave y" [sc. en France] "a mis le pied, il y acquiert la liberté," p. 504.
"Dès qu'un esclave est entré en France, il devient libre," p. 504.
"Il faut conclure que l'esclave est devenu libre, dès le premier instant de son arrivée en France," p. 508.
"L'entrée dans la ville de Paris assure le maintien, et devient l'asile, de la liberté—'Est' [sc. Lutetia] 'sacro-sancta civitas, quæ præbet omnibus libertatis atrium quoddam, asiliúmque immunitatis," pp. 511, 526.
"Je ne me propose point ici, de porter la moindre atteinte an plus précieux de nos bieus: je ne prétens point envier, ax 1'heureux climat que nous habitons, cette prérogative éminente, attachée à la seule entrée en ce royaume," [this phrase occurs again in p. 533.] "et qui forme le gage le plus assuré de la liberté, dont nous jouissons nous-mêmes," p. 512.
"Je se ne craindrai pas d'avouer avec tous les auteurs, qo'on ne connôit point d'esclave en France, et que si tôt qu'un esclave étranger a mis le pied sur notre continent, il est gratifié de la liberté," p. 520.
"On ne connôit point d'esclave en France, et quiconque a mis le pied dans ce royaume, est gratifié de la liberté," p. 525.
"Testatur Benedictus, 'servos, qui Tholosam aufugerant, urbis ingressu ipso, liberos 'factos et cives,'" p. 527.
"Les maximes si précieuses du droit François accordent à la seule entrée dans ce royaume, au seul air qu'on y respire, le droit de la liberté, le don de la franchise; j'ai adopté ces maximes, je leur ai rendu tout l'hommag'e, qu'elles exigent des coeurs vraiment François," p. 532.
"La France ce fait gloire de communiquer
*Mr. [Edmund] Burke [1729-1797] (Reflections on the Revolution in France, &c. 4th ed. p. 93) remarks, that "it was in the most patient period of Roman servitude that themes of tyrannicide made the ordinary exercise of boys at school—'cùm perimit sævos classis numerosa tyrannos.'" The line is in Juvenal [60-140 A.D.], Sat 7, v. 151.
|le beau privilège d'affranchissement à tous les esclaves, lorsqu'ils entrent dans ce climat heureux, dont le seul nom répand de toute part la bonne odeur de la liberté," p. 539.
"Il n'est point d'esclave en France; nos constitutions, nos usages étendent la faveur de la liberté à tous les hommes en général qui l'habitent," p. 539.
"Il ne peut y avoir d'esclaves dans ce royaume, il suffit méme d'y etre etabli, ou d'y faire sa résidence, pour acquérir le bien précieux de la liberté," p. 544.
"Nos privilèges ont effacé jusqu'ax l'idée de l'esclavage en France," p. 546.
"Il n'y a en France aucuns esclaves; et la coutume y est telle, que non seulement les François, mais aussi les étrangers, prenant port en France, et criant France et Liberté, sont hors de la puissance de celui, qui la possédoit," p. 549.
"La France, mère de liberté, ne permet aucuns esclaves," p. 549.
"Les enclaves ont en France le privilège de se remettre en possession de leur liberté, au moment qu'ils sont entrés dans les terres de ce royaume," p. 551.
"De tems immémorial l^esclavage n'a point lieu en France, et l'esclave étranger devient libre, aussitôt qu'il y aborde," p. 551.
"Douter si en France un homme est libre, si un esclave acquiert sa liberté par son entrée en France, c'est attaquer I'autorité souveraine de nos rois, et faire injure à la nation," p. 498.
To these may be added the following more early authority:
"Toutes personnes sont franches en ce royaume, et sitost qu'un esclave a atteint les marches diceluy se faisant baptizer, il est affranchi." Institutes Coustumières, (published at Paris in 1679) p. 2, cited by Mr. [Daines] Barrington [1727-1800] in his Obs. on stat. 1 Rich. 2, where he has collected some curious particulars, relating to slavery.
M. Tribard, who pleaded against the pretensions of the negro, admitted and maintained the proposition that there were no slaves in France, as a general rule; but contended that the case of negroes, belonging to French West Indian colonists, was, by the edict of 1685, specifically excepted from its operation.
"Si en France," says he, "on ne connôit point d'esclaves, si la seule arrivée dans ce royaume, procure la liberté, ce privilège cesse à l'égard des esclaves négres François: quelle en est la raison? C'est qu'en France, c'est que par une loi de la France mème, les esclaves négres de nos colonies sont constitués dans un esclavage nécessaire et antorisé," p. 529.
After noticing an 'Arrêt' of the parliament of Toulouse, reported by [Jean] Bodin [1530-1596], he proceeds, "Quel peut être 1'effet, quelle pent étre l'in-
|duction de cet arrêt, vis-à-vis via d'un édit qui deux si ècles après, pour soutenir la splendeur d'un état, les forces et la puissance de la nation, a établi une servitude nécessaire sur cette partie des sujets du roi?" p. 531.
Again "Voilà done la seule induction, uniquement par rapport aux étrangers, et aux esclaves des étrangers," p. 597.
It must be confessed that the pleading of M. Tribard was not very convincing. Of the style and cogency of his argumentation the following absurd false and despicable common places may suffice as samples:
"Ceux qui l'infortune de la guerre assujetissoit aux vainqueurs furent appellés esclaves, servi, bien moins à serviendo, qu'à servando," p. 514.
"Neque enim libertas tutior ulla est, quàm domino servire bono," p. 538.
Judgment was given to the Negro.
The Code Noir, as it was called, was an edict bearing date in March 1685, which was issued by Lewis the 14th [1643-1715]. It contains various regulations respecting the condition and treatment, the rights and duties of negro slaves, and freed negroes, and of the French West Indian colonies.*
This 'Code Noir' is cited in the pleadings in the negro case reported in the 'Causes Célébres;' but I do not perceive that it at all concerns that particular case, except in so far as it recognizes, and establishes the status of slavery; on which account indeed much reliance was placed on it in the pleadings for the party who claimed to be owner of the negro.
In October 1716, Lewis the 15th [1715-1774] published an edict, 'concernant les esclaves négres des colonies,' by which, after reciting, inter alia, "comme nous avons été informés, que plusieurs habitans de nos isles de l'Amérique désirent envoyer en France quelques uns de leurs
*In Mr. Hargrave's Argument in the text, this edict is said to have been made in May 1685, but in the copy of the edict which is inserted in the 13th volume of the "Causes Célébres," the date is twice mentioned to be March 1685. In that volume the edict bears the following title,
"Le Code Noir ou Edit du Roi servant de réglement pour le gouvernement et l'administration dela justice et de police des Isles Françoises de l'Amerique, et pour la discipline et le commerce des négres et esclaves dans le dit pays."In the preamble the objects of the edict are stated to be
"y maintenir la disciplins de I'église catholique, apostolique, et romaine, et y régler ce qui concerne 1'état et la qualité de nos esclaves dans nos dites isles."And accordingly all its provisions relate to the concerns of religion, of slaves, or of freed persons. In the month of August, 1685, the king issued another edict for the establishment of courts of justice in St. Domingo.
|esclaves, pour les confirmer dans les instructions et dans les éxercices de notre religion, et pour leur faire apprendre quelque art et métier dont les colonies recevroient beaucoup d'utilité par le retour de ces esclaves; mais que ces habitans craignent que les esclaves ne prétendent être libres en arrivant en France, ce qui pourroit causer aux dits habitans une perte considérable, et les détourner d'un objet aussi pieur et aussi utile;"
"Le Roi ordonne que si quelques uns de habitans des colonies, ou des officiers employé dans l'état veulent amener avec eux des esclaves négres de l'un ou de l'autre sexe, en qualité de domestiques ou autrement, pour les fortifier dans la religion, &c. les propriétaires seront tenus d'en obtenir la permission des gouverneurs généraux ou commandans dans chaque isle, laquelle permission contiendra le nom du propriétaire, celui des esclaves, leur âge, et leur signalement.
"Les propriétaires des dits esclaves seront pareillement obligés de faire enregistrer ladit permission au greffe de la jurisdiction du lieu de leur résidence avant leur départ, et en cela de 1'amirauté du lieu du débarquement, dans huitaine après leur arrivée en France."
The edict next proceeds to establish correspondent regulations for the case of negro slaves whom their owners shall send under the care of other persons from the colonies to France.
It then ordains that negroes so by their owners brought or sent into France shall not by reason thereof acquire any right to their freedom, but shall be compellable to return to the colonies at the will of their owners: it is provided however, that in case the owners have neglected to comply with the prescribed regulations, the negroes shall become free, and the owners shall lose all property in them.
The remainder of the edict does not affect the case before us.
Mr. Baron Maseres (Historiæ Anglicanæ Selecta Monumenta, pp. 13, 381,) observes of a passage in the Encomium Emmæ that "it plainly shews that there were at this time in Denmark several men in a state of slavery, called in this passage servi; and others that were freed-men, or that, after having been slaves, had been made free, ex servis liberti; and a third set of men who had always been free, but were not noble, and who are in this passage called ignobiles, and probably were the husbandmen and handy-craftsmen of the country; and, lastly, a fourth set, who were called noblemen, nobiles, and who seem to have been the warriors, or military part of the people, and who must have been very numerous, since all the whole army of Canute the Dane [994-1035], when he invaded England after the death of king Swein, his father, is said to have been composed of men of this class,
|omnes enim erant nobiles.' And the people of England were, probably, at this period distinguished into different classes of nearly the same kinds.
At least, it is certain, that, before the Norman Conquest  as well as after it, the great body of the cottagers and handycraftsmen (such as blacksmiths, millers, and cart-wrights) in country villages were slaves, or what our old law books called 'villeins regardant,' or belonging to the manor, or servi adscriptitii glebæ, and were alienated, as such, by name, together with their families, and all the goods and chattels they were possessed of, by their lords or owners," and he has transcribed from Ingulphus a grant made by Thorold in the year 1051 to the abbey of Crowland of
"totum maneriam meum, &c. cum omnibus appendiciis suis; scilicet, Colgrinum præpositum meum, Item Hardingum fabrum, Item Lestanum carpentarium (and eleven others) et totas sequelas suas, cum omnibus bonis et catallis, quæ habent in dictà villâ, et in campis ejus, et in mariscis, absque ullo de omnibus retinemento."
As to Wales, [Henry] Rowlands [1655-1723], in recounting the observations respecting the "true state and condition of the British government," and of "the ancient British tenures, and the former customs and usages thereof," which he had collected from those materials of information, which "our own careless neglect had omitted, but, as a just reproach to our wretched oscitancy and remissness, the covetousness of our more watchful conquerors took care to record and preserve for us, that is the English monarchs, when they got themselves seised of the last remains of our British royalties, and found or made themselves intitled or interested by descent or conquest to the ancient revenues of our British princes," says (Mona Antiqua Restaurata, 4to, 2d edition, London 1766; the former edition was published in Dublin, in 1723, the year of the author's death:)
"We find, that the tenants of bond-lands and villanages, as they were of a quality below and inferior to freeholders, so they were obliged to greater drudgeries, and employed in more servile works, and were to be disposed of in many things, as their lords and princes pleased to use them. And of these some were free natives, and some pure natives. The free natives, I take to be those, who had some degree of freedom, who might go where they would, might buy and sell, and had many immunities; but the pure natives (as they were called) were the peculium of their proprietory lords or princes to be disposed of as they listed. And l remember to have met, in sir William Gruffyth's* book, with an abstract of a deed, where
*Rowlands, speaking of the old returns and verdicts which had been made by jurors to the king's commissioners of enquiry into tenures,
|the natives of the township of Porthaethwy, many years after the time of the British princes, were sold as part of the estate of those lands they belonged to; and of which, and of others of that sort I have given elsewhere large instances. And I have by me a copy of injunction, issued out by Henry the seventh, king of England [1485-1509], commanding escheators, and all other ministerial officers, to see that the king's native tenants kept within their proper limits; and if any of them were found to stray and wander from their home, to drive them back, like beasts to their pinfolds, with the greatest severity."
And in a book intitled Beauties of England and Wales [London: J. Harris, (1812)], vol. xvii, by the Rev. J. [John] Evans, 8vo, 1812, I have met with the following passage:
"Among the boons bestowed upon the corporation of Beaumaris, so late even as the fourth year of Elizabeth's reign [c. 1562], the following grant appears: 'All and singular the king's lands, tenements, and hereditaments in Bodinew, and his villagers (cultivators) in the same town, if any be, with their offspring.' But this was probably no more than an exemplification of a grant, made long before, by way of confirmation.
"The following is one, out of three documents, adduced by Mr. Rowlands. 'Edynfed Vychan ap Edynfed, alias dictus Ednyfed ap Arthelw oz Davydd ap Gruffyd et Howel ap Davydd ap Ryryd, alias dictus Howel ap Arthelw uz Davydd ap Gryffydd, Liberi tenentes D'ni Regis villæ de Rhandei Gadog, &c. dedimus et confirmavimus Willimo ap Gryffydd ap Gwilim armigero et libero tenenti de Porthamel, &c. septem nativos nostros; viz. Howel ap Davydd Dew, Matto ap Davydd Dew, Jevan ap Evan Ddu, Llewelyn ap Davydd Dew, Davydd ap Matto ap Davydd Dew, Howel ap Matto ap Davydd Dew, et
&C. says (p. 120) "For what light we have from these records, we ought to be much obliged to the generous care and industry of that very worthy and deservedly celebrated person, sir William Gruffydd of Penryhon, knight and chamberlain of North Wales; who preserved these records from perishing, by collecting so many of them as he could retrieve from moth and corruption; and then causing those scattered rolls and fragments which he could meet with, to be fairly written by one Jenkyn Gwyn, in two large books of parchment, for the information of posterity. One whereof is that book, kept always in the Chamberlain's office, called by the name of the Extent of North Wales; and the other he transmitted into the Auditor's office at London, where it is preserved to this day ."
|Llewelyn ap Evan Coke, cum eorum sequelis tàm procreatistàm procreandis æ omnibus bonis, catallis, &c. habend, &c. prædictos nativos nostros, &c. præfato Willimo Gruffyd ap Gwilim hæredibus et assignatis suis in perpetuum. Datum apud Rhandir Gadog, 20 die Junii, an. Henr. 6ti 27 mo. [Manuscript Hist. of Anglesea.]"
In a note to the 'Beauties, &c.' it is stated that "in the western parts of England, if some estates are sold or let, an usual condition is, to take all the apprentices upon them, male and female." This the writer denominates "an evident though laggering proof of persons being attached to the soil."
The whole of Mr. [John] Burnett's [1764-1810] sixteenth chapter (Treatise on the Criminal Law of Scotland [London and Edinburgh, 1811]) is a commentary, extending through seventy-one 4to pages, upon the 'Act' (already noticed) 'for preventing wrongous imprisonment, and against undue delays in trials' (chap. 6 of the eighth and ninth sessions of king William's parliament 1701). He says of it that it comprises (in some respects with greater security to the liberty of the subjects) the provisions of all the several statutes which the legislature of England has passed for the personal liberty of the subject, and that therefore it justly may be termed the Magna Charta of Scotland. And in the case of Andrew against Murdoch, the lord justice clerk, Hope (now, 1812, lord president) said "Our Act 1701 is greatly more favourable to the liberty of the subject in every respect than the Habeas Corpus Act of England."
Of a law thus celebrated, the provisions will naturally excite in the mind of every lover of his country a warmth of interested curiosity.
The enactments of this statute are numerous, extensive, and minute. The statute itself is therefore very long. I recollect not any account of it in Mr. Laing's History. Mr. Burnett exhibits a brief history of its origin, and analysis of its provisions; which I will substitute for the copiousness and particularity of the act itself.
"The Convention of Estates of Scotland, in the year 1689, declared, among other things, that, 'exacting exorbitant bail, and imprisoning persons without expressing the reason thereof, and delaying to put them to trial, are contrary to the known laws, statutes, and freedom of the realm,' and the redress of this they claimed as their undoubted right and privilege; and farther, 'that no declarations, doings or proceedings, to the prejudice of the people, in any of the said premises, ought in any ways to be decisive hereafter in consequence or example.' These grievances, in a subsequent letter to the king (1689, chap. 27.) the
|estates prayed his majesty to redress by wholesome laws in his first parliament.
"In the first parliament, accordingly, most of these grievances were redressed, and particularly, the exacting of exorbitant bail, imprisoning persons without expressing the cause, and delaying to put them to trial, by the well known statute 1701, cap. 6, which the people in this part of the united kingdom must view as one of the greatest benefits conferred on them by the Revolution, whether it be held as a law declaratory only of their former rights; or as introducing provisions in favour of the subject, which had not previously been either so well defined, or observed in practice.
"The objects indeed of this statute are of the first importance to the security and happiness of every individual of the community; inasmuch as the injury of unjust and illegal confinement, while it is often the most difficult to guard against, is in its nature the most oppressive and the most likely to be resorted to by an arbitrary government. Some have thought that unjust attacks, even upon life and property, at the arbitrary will of the magistrate, are less dangerous to the commonwealth than such as are made upon the personal liberty of the subject. Wthout accusation or trial to bereave a man of life, or by violence to confiscate his estate, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person by secretly hurrying to jail, where the sufferings of the party are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. (Blackst. Comm. book 1, chap. 1.)
"The statute proceeds accordingly on the preamble of the previous declaration by the Claim of Right, and the interest which all his majesty's subjects have, 'that the liberty of their persons be duly secured;' and contains in its enactment almost every provision, which has at any period, or almost in any system of law, been deemed most conducive to the personal liberty of the subject; at the same time it introduces regulations and exceptions, which, while they are the best calculated to ensure that object, render it nowise inconsistent with the safety of the public.
"It sets out by providing against the first steps towards an illegal confinement, the apprehending of the persons without a regular information and a special warrant, and guards against any confinement, that is not necessary to ensure the attendance of the party on the day of trial. In the next place it declares what crimes shall be bailable, and directs the speediest mode of finding bail; and to prevent the possibility of any vague discretion being
|exercised in fixing its amount, which might defeat the whole provisions of the law, it ascertains the maximum of bail in each case, according to the rank of the person in custody for trial; and imposes high penalties on the judge who shall delay modifying the amount, or refuse to accept of sufficient bail, when offered.
The act, however, would have been greatly defective had it stopped here, for of what use would have been the precautions already mentioned, if in cases either where bail could not be found by the party entitled to it, or when it could not be received, owing to the nature of the crime, the person imprisoned might be wrongously detained, in consequence of a delay in putting him to trial by a certain day; the act therefore directs, that in such cases, the party shall have right to insist, that within a certain time a [date] shall be fixed for his trial, and the trial carried through and concluded by a determinate day, otherwise he is to be set at liberty, under the penalty of wrongous imprisonment, and is not to be again incarcerate, unless on new criminal letters raised against him, before the lords of Justiciary; in which last case, his trial must be concluded in another day, particularly fixed by the enactment, otherwise the prisoner is to be set at liberty, and to be forever free from all question or process for that crime.
Certain exceptions are then introduced with respect to treason, and some other offences more immediately affecting the public security; and a provision annexed, that no person shall be 'transported furth of this kingdom,' except with his own consent, given before a judge or by legal sentence, under the certification, that any judge or magistrate, who shall give order for such transportation, or any one, who shall so transport another, shall not only be liable in the pecuniary pains of wrongous imprisonment, as declared by the act, but shall lose their offices, and be declared incapable of all public trust.
These are the general outlines of this important statute; the value of which cannot be too highly prized by the people of Scotland, nor its observance too strictly maintained by the judges and magistrates."
By the act of the 39tb of George 3, persons accused of sedition are excepted from certain provisions contained in the act against wrongous imprisonment. As to this, see the Cases of the Rioters against the Militia Law, A.D. 1798.
And I do further certify to our said lord the king, that the said James Sommersett did accordingly attend and serve the said Charles Stewart in this kingdom, from the time of his said arrival, until the said James Sommersett's departing and absenting himself from the service of the said Charles Stewart herein after-mentioned, to wit, at London aforesaid in the parish and ward aforesaid; and that before the coming of this writ to me, to wit, on the first day of October in the year of our Lord 1771, at London aforesaid, to wit, in the parish and ward aforesaid, the said James Sommersett, without the consent, and against the will of the said Charles Stewart, and without any lawful authority whatsoever, departed and absented himself from the service of the said Charles Stewart, and absolutely refused to return into the service of the said Charles Stewart, and serve the said Charles Stewart, during his stay and abiding in this kingdom, on the occasion aforesaid: whereupon the said Charles Stewart afterwards, and before the coming of this writ to me, to wit on the 26th day of November in the year of our Lord 1771, on board the said vessel called the Ann and Mary, then and still lying in the river Thames, to wit at London aforesaid, in the parish and ward aforesaid, and then and still bound upon a voyage for Jamaica aforesaid, did deliver the said James Sommersett unto me, who then was, and yet am master and commander of the said vessel, to be by me safely and securely kept and carried and conveyed, in the said vessel, in the said voyage to Jamaica aforesaid, to be there sold as the slave and property of the said Charles Stewart; and that I did thereupon then and there, to wit at London aforesaid in the parish and ward aforesaid, receive and take, and have ever since kept and detained the said James Sommersett in my care and custody, to be carried by me in the said voyage to Jamaica aforesaid, for the purpose aforesaid.
And this is the cause of my taking and detaining the said James Sommersett, whose body I have now ready as by the said writ I am commanded."
On that day Mr. Serj. Davy and Mr. Serj. Glynn argued against the return, and the farther argument was postponed till Easter term, when Mr. Mansfield, Mr. Alleyne, and Mr. Hargrave, were also heard on tbe same side. Afterwards Mr. Wallace and Mr. Dunning argued in support of the return, and Mr. Servant Davy was heard in reply to them.
The determination of the Court was suspended till the following Trinity term; and then the Court was unanimously of opinion against the return, and ordered that Sommersett should be discharged [freed].
Though the learning and abilities of the gentlemen, with whom I am joined on this occasion, have greatly anticipated the arguments prepared by me; yet I trust, that the importance of the case will excuse me, for disclosing my ideas of it, according to the plan and order, which I originally found it convenient to adopt.
The case before the Court, when expressed in few words, is this.
|Ed. Note: Not accurate, see our Unconstitutionality of Slavery Site.|
Tbe questions arising on this case, do not merely concern the unfortunate person, who is the subject of it, and such as are or may be under like unhappy circumstances. They are highly interesting to the whole community, and cannot be decided, without having the most general
|*The following Argument, on the behalf of the negro, is not to be considered as a speech actually delivered: for though tbe author of it, who was one of the counsel for the negro, did deliver one part of his Argument in court without the assistance of notes; yet his Argument, as here published, is entirely a written composition.This circumstance is mentioned, lest the author should be thought to claim a merit to which he has not the least title. Hargrave.|
In speaking on this case, I shall arrange my observations under two heads.
(1st.) The first point, concerning Mr. Stewart's right in tbe person of the negro, is the great one, and that which, depending on a variety of considerations, requires tbe peculiar attention of the Court. Whatever Mr. Stewart's right may be, it springs out of the condition of slavery, in which the negro was before his arrival in England, and wholly depends on the continuance of that relation; the power of imprisoning at pleasure here, and of transporting into a foreign country for sale as a slave, certainly not being exerciseable over an ordinary servant.
Accordingly the return fairly admits slavery to be the sole foundation of Mr. Stewart's claim; and this brings the question as to the present lawfulness of slavery in England, directly before the Court. It would have been more artful to have asserted Mr. Stewart's claim in terms less explicit, and to have stated the slavery of the negro before his coming into England, merely as a ground for claiming him here, in the relation of a servant bound to follow wherever his master should require his service. The case represented in this disguised way, though in substance the same, would have been less alarming in its first appearance, and might have afforded a better chance of evading the true question between the parties.
But this artifice, however convenient Mr. Stewart's counsel may find it in argument, has not been adopted in the return; the case being there stated as it really is, without any suppression
Before I enter upon the enquiry into present lawfulness of slavery in England, I think it necessary to make some general observations on slavery. I mean however always to keep in view slavery, not as it is in the relation of a subject to an absolute prince, but only as it is in the relation of the lowest species of servant to his master, in any state, whether free or otherwise in its form of government. Great confusion has ensued from discoursing on slavery, without due attention to the difference between the despotism of a sovereign over a whole people, and that of one subject over another. The former is foreign to the present case; and therefore when I am describing slavery, or observing upon it, I desire to be understood as confining myself to the latter; though from the connection between the two subjects, some of my observations may be applicable to both.
Slavery has been attended in different countries with circumstances so various, as to render it difficult to give a general description of it.
The Roman Lawyer(a) calls slavery, a constitution [heathen creation] of the law of nations, by which one is made subject to another contrary to nature. But this, as has been often observed by the commentators, is mistaking the law, by which slavery is constituted, for slavery itself, the cause for the effect; though it must be confessed, that the latter part of the definition obscurely hints at the nature of slavery.
[Hugo] Grotius [1583-1645](b) describes slavery to be, an obligation to serve another for life, in consideration of being supplied with the bare necessaries of life.
Dr. [Thomas] Rutherforth [1712-1771](c) rejects this definition, as implying a right to direct only the labors of the slave, and not his other actions. He therefore, after defining despotism to be an alienable right to direct all the actions of another, from thence concludes, that perfect slavery is an obligation to be so directed. This last definition may serve to convey a general idea of slavery; but like that by Grotius, and many other definitions which I have seen, if understood strictly, will scarce suit any species of slavery, to which it is applied.
Besides, it omits one of slavery's severest and most usual incidents; the quality, by which it involves all the issue in the misfortune of the parent. In truth, as I have already hinted, the variety of forms, in which slavery appears, makes it almost impossible to convey a just notion of it in the way of definition. There are however certain properties, which have accompanied
|(a) [Justinian,] Dig. lib. 1, tit. 5, i. 4, s. 1. 'Servitus est constitutio juris gentium, quà quis dominio alieno contra naturam subjicitur.'
(b) Jur. Bell., lib. 2, c. 5, s. 27.
(c)Inst. Nat. L. [Cambridge: J. Bentham, 1754], b. 1, c. 20, p. 474.
From this view of the condition [characteristics] of slavery, it will be easy to derive its destructive consequences.
However, I must confess, that notwithstanding the force of the reasons against the allowance of domestic slavery, there are civilians [laymen] of great credit, who insist upon its utility; founding themselves chiefly, on the supposed increase of robbers and beggars in consequence of its disuse. This opinion is favoured by [Samuel von] Puffendorf [1632-1694](d) and Ulricus Huberus(e).
In the dissertation on slavery prefixed to Potgiesserus on the German law 'de statu servorum,' the opinion is examined minutely and defended. To this opinion I oppose those ill consequences, which I have already represented as almost necessarily flowing from the permission of domestic slavery; the numerous testimonies against it, which are to be found in ancient and modern history; and the example of those European nations, which have suppressed tbe use of it, after the experience of many centuries and in the more improved state of society.
In justice also to the writers just mentioned I must add, that though they contend for the advantages of domestic slavery, they do not seem to improve of it, in the form and extent in which it has generally been received, but under limitations, which would certainty render it far more more tolerable.
Huberus in his Eunomia Romana [Amstelodami: 1724](f) has a remarkable passage, in which, after recommending a mild slavery, he cautiously distinguishes it from that cruel species, the subject of commerce between Africa and America. His words are,
|'loquor de servitute, qualis apud civiliores populos in usa fuit; nec enim exempla barbarorum, vel quæ nunc ab Africa to Americam fiunt hominum commercia, velim mihi quisquam objiciat.'|
The great origin of slavery is captivity in war, though sometimes it has commenced by contract. It has been a question much agitated, whether either of these foundations of slavery is consistent with natural justice. It would be engaging in too large a field of enquiry, to attempt reasoning on the general lawfulness of slavery. I trust too, that the liberty, for which I am contending, does not require such a disquisition; and am impatient to reach that part of my argument, in which I hope to prove slavery reprobated by the law of England as an inconvenient thing.
Here therefore I shall only refer to some of the most eminent writers, who have examined, how far slavery founded on captivity or contract is conformable to the law of nature, and shall just hint at the reasons, which influence their several opinions. The antient writers suppose the right of killing an
|(d) Law of Nature and Nations , b. 6, c. 3, s. 10.
(e) Prælict. Jur. Civ. [Lips.: 1707], p 16.
(f) See page 48.
Dr. Rutherforth,(l) not satisfied with the right of killing a vanquished enemy, infers the right of enslaving him, from the conqueror's right to a reparation in damages for the expences of the war. I do not know, that this doctrine has been examined; but I must observe, that it seems only to warrant a temporary slavery, till reparation is obtained from the property or personal labour of the people conquered.
The lawfulness of slavery by contract is assented to by Grotius and Puffendorf(m), who found themselves on the maintenance of the slave, which is the consideration moving from the master.
But a very great writer of our own country, who is now living, controverts(n) the sufficiency of
|(g) De Jur. Gent. cap. de servitute.
(h) De Jur. Bell. l. 3, c. 7, s. 5.
(i) Law of Nature and Nations, b. 6, c. 3, s. 6.
(j)Quæst. Jur. Publ. l. 1, t. 3.
(k) B. 15, c. 2.
(l)See his Inst. Nat. Law, vol. 2, p. 573, and vol. 1, p. 481.
(m) See Grot. Jur. Bell. i. 2, c. 5, s. 1, 2, and Puff. Law of Nature and Nations, b. 6, c. 3, s. 4.
The authority of Mr. Justice Blackstone having been cited both for and against the rights of persons claiming to be the owners of slaves in Great Britain, I have thought it worthwhile to insert together all that I find relating to the subject in his Commentaries:
"The spirit of liberty is so deeply implanted in our constitution, and rooted even in our very soil, that a slave or a negro, the moment he lands in England, falls under the protection of the laws, and so far becomes a freeman; though the master's right to his service may possibly still continue." Vol. 1, p. 127.
"I have formerly observed that pure and proper slavery does not, nay cannot, subsist in England; such I mean, whereby an absolute and unlimited power is given to the master over the life and fortune of the slave. And indeed it is repugnant to reason, and the principles of natural law, that such a state should subsist any where.
"The three origins of the right of slavery, assigned by Justinian, are all of them built upon false foundations. As, first, slavery is held to arise 'jure gentium,' from a state of captivity in war; whence slaves are called
|mascipia, quasi manu capti.' The conqueror, say the civilians [laymen], had a right to the life of his captive; and, having spared that, has a right to deal with him as he pleases. But it is an untrue position, when taken generally, that by the law of nature or nations, a man may kill his enemy: he has only a right to kill him in particular cases; in cases of absolute necessity, for self-defence; and it is plain this absolute necessity did not subsist, since the victor did not actually kill him, but made him prisoner.
"War is itself justifiable only on principles of self-preservation; 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, secondarily, it is said that slavery may begin 'jure civilis; 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 the sense of the laws of old Rome or modern Barbary, is also inpossible. 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 be given for life, and liberty, both of which (in absolute slavery) are held to be in the master's disposal? His property also, the very price he seems 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 principles upon which all sales are founded?
"Lastly, we are told, that besides these two ways by which slaves 'fiunt,' or are acquired, they may also be hereditary: 'servi nascuntur;' the children of acquired slaves are, 'jure naturæ' 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 to slavery, much less can they reduce the offspring.
"Upon these principles the law of England abhors, and will not endure the existence of, slavery within this nation: so that when an attempt was made to introduce it [circa 1278], by statute 1 Edw. 6, c. 3, which ordained, that all idle vagabonds should be made slaves, and fed upon bread, water, or small drink, and refuse meat; should wear a ring of iron round their necks, arms, or legs; and should be compelled by beating, chaining, or otherwise, to perform the work assigned them, were it never so vile; the spirit of the nation could not brook this condition, even in the most abandoned rogues; and
Dr. Rutherforth(n) endeavours to answer Mr. Locke's objection, by insisting on various limitations to the despotism of the master; particularly, that he has no right to dispel of the slave's life at pleasure. But the mistortune of this reasoning is, that though the contract cannot justly convey an arbitrary power over the slave's life, yet it generally leaves him without a security against the exercise of that or any other power.
I shall say nothing of slavery by birth; except that the slavery of the child must be unlawful, if that of the parent cannot be justified; and that when slavery is extended to the issue, as it usually is, it may be unlawful as to them, even though it is not so as to their parents.
In respect to slavery used for the punishment of crimes against civil society, it is founded on the same necessity, as the right of inflicting other punishments; never extends to the offender's issue; and seldom is permitted to be domestic, the objects of it being generally employed in public works, as the galley-
|therefore this statute was repealed in two years afterwards.
And now it is laid down, that a slave or negro, the instant he lands in England, becomes a freeman; that is, the law will protect him in the enjoyment of his person, and his property. Yet, with regard to any right which the master may have lawfully acquired to the perpetual service of John or Thomas, this will remain exactly in the same state as before; for this is no more than the same state of subjection for life, which every apprentice submits to for the space of seven years, or sometimes for a longer time.
"Hence too it follows, that the infamous and unchristian practice of withholding baptism from negro servants, lest they should thereby gain their liberty, is totally without foundation, as well as without excuse.
"The law of England acts upon general and extensive principles: it gives liberty, rightly understood, that is, protection, to a Jew, a Turk, or a Heathen, as well as to those who profess the true religion of Christ; and it will not dissolve a civil obligation between master and servant, on account of the alteration of [religious] faith in either of the parties: but the slave is entitled to the same protection in England before, as after, baptism; and, whatever service the heathen negro owed of right to his American master, by general not by local law, the same (whatever it be) is he bound to render when brought to England and made a Christian." Vol. 1, p. 423.
In these passages, there appears to be somewhat of very subtle distinction, if not rather of contradiction.
(p) See his Inst. Nat. Law, vol. 1, p. 480.
(q) Some writers there are, who deduce the lawfulness of domestic slavery from the [alleged] practice of it amongst the Jews, and from some passages in the Old Testament which are thought to countenance it. See Vinn. in Instit. Heinecc., ed. i. 1, t. 3, p. 31. There are others who attempt to justify slavery by the New Testament, because it [allegedly] contains no direct precepts against it. See Tayl. Elem. Civ. L. 434.—I shall not attempt to examine either of these opinions.—Hargrave.
In the discussions respecting the African slave trade, which were maintained during several years preceding the abolition of that traffic (by stat. 46 Geo. 3, c. 52, see also c. 119. and 51 G. 3, c. 23), the authority of the scriptures was appealed to by the oppugners and defenders of the trade.
On June 24, 1806, the learned and eloquent Dr. [Samuel] Horsley [1733-1806], bishop of St. Asaph [1802-1806], delivered in the House of Lords upon the subject, a very powerful speech, from which I have extracted the following passages.
"My rev. brother" (the bishop of London) "told your lordships, that perpetual slavery was not permitted by the Jewish law. That a native Jew could be held in slavery for seven years only, at the longest. For he had a right to his freedom upon the first return of the sabbatical year. And that a foreign slave purchased in the market, or captivated in [authorized-by-God] war, could be held in slavery for fifty years only, at the longest. For the foreign slave had a right to his freedom upon the first return of the year of Jubilee. And from these premises, my rev. brother concluded, that perpetual slavery was unknown among the Jews.
"I confess, I was carried away by the fair appearance of my rev. brother's arguments, till, to my great surprise and his utter confusion, the noble earl (of Westmoreland) rose, with bis Bible in his hand, and quoted chapter and verse against him!
"My lords, with respect to the native Hebrew slave, we have this law, which was quoted by my rev. brother: 'If thy brother, an Hebrew man or an Hebrew woman, be sold unto thee, and serve thee six years, then in the seventh thou shall let him go free from thee. And when thou sendest him out free from thee, thou shalt not let him go away empty. Thou shalt furnish him liberally out of thy flock, and out of thy flour, and out of thy wine-press. Of that wherewith the Lord thy God hath blessed thee, thou shalt give unto him.' Deut. xv. 12—14.
"And with respect to the foreign slave, we have this law, quoted likewise by my rev. brother: 'Thou shalt number unto thee seven sabbaths of years, forty and nine years. Then shalt thou cause the trumpet of the jubilee to sound throughout all the land. And ye shall hallow the fiftieth year, and proclaim liberty
|throughout all the land, to all the inhabitants thereof.' Lev. xxv. 8—10.
"The manumission of the Hebrew slave in the seventh year was provided for by the other law. Under the expression, therefore, of 'all the inhabitants,' foreign slaves must be comprehended; for none but foreign slaves could remain to be manumitted in the fiftieth year.
"My lords, there is a circumstance not touched upon by my rev. brother; but there is a passage in the law, which I have always considered, as a strong argument of the leniency with which slaves [employees] were treated among the Jews, and of the efficacy of the provisions the law had made, to obviate the wrongs and injuries to which the condition is obnoxious.—My lords, I am afraid I cannot, by memory, refer exactly to the place.
"But the noble earl there with his Bible, 1 am sure will have the goodness to help me out and turn up the passage for me. My lords, it is a passage, in which the law provides for the case, of a slave, who should be so attached to his master [employer], that when the term of manumission, fixed by the law, should arrive, the slave should be disinclined to take advantage of it, and wish to remain with his master.
"And the law prescribes the form, in such case to be used, by which the master and the slave should reciprocally bind themselves, the slave to remain with his master for life, and the master to maintain him. This I have always considered as a strong indication of the kindness, with which slaves were treated among the Jews; else whence should arise the attachment, which this law supposes?"
[Query if the bishop had in mind the beginning of the 21st chapter of Exodus, if so, the words are 'he shall serve him for ever.']
But we are all in the wrong, it seems—my rev. brother and I—we reason from specious premises, but to false conclusions. The noble earl has produced to your lordships a passage in the Levitical law, which enacts that the foreign slave should be the property of his master for ever. Whence the noble earl concludes that the perpetual servitude of foreign slaves was actually sanctioned by the law.
"But, my lords, I must tell the noble earl, and I must tell your lordships, that the noble earl has no understanding at all of the technical terms of the Jewish law. In all the laws relating to the transfer of property, the words 'for ever' signify only 'to the next jubilee.' That is the longest 'for ever' which the Jewish law knows with respect to property.
"And this law which makes the foreign slave the property of his master for ever, makes him no longer the master's property than to the next jubilee.
"And, with the great attention the noble earl has given to the laws and history of the Jews, he must know, that when they [the Jews] were carried into captivity, they were told by their prophets, that
But however reasonable it may be to doubt the justice of domestic slavery, however convinced we may be of its ill effects, it must be confessed, that the practice is antient, and has been almost universal. Its beginning may be dated from the remotest period, in which there are any traces of the history of mankind. It commenced in the barbarous state of society, and was retained, even when men were far advanced in [non-biblical] civilization. The nations of antiquity most famous for countenancing the system of domestic slavery were the Jews [Ed. Note: not true], the Greeks, the Romans, and the antient Germans(r); amongst all of whom it prevailed, but in various degrees of severity.
By the antient [pagan] Germans it was continued in the countries they over-run [conquered]; and so was transmitted to the varous kingdoms and states, which arose in Europe out of the ruins of the Roman empire.
At length however it [slavery] fell into decline in most parts of Europe; and amongst the various
|one of the crimes [sins] which drew down that judgment upon them, was their gross neglect and violation of these merciful laws respecting manumission. And that, in contempt and defiance of the [Bible anti-slavery] law, it had been their practice to hold their foreign slaves in servitude beyond the year of jubilee."
"—————My lords, although we [supposedly] have no explicit prohibition of the slave trade in the New Testament, we have a most express reprobation of the trade in slaves, even in that milder form, in which it subsisted in ancient times.
[We have in the New Testament] Such a reprobation [condemnation] of it [the slave trade] as leaves no [Bible] believer at liberty to say, that the slave trade is not condemned by the gospel.
"The reverend prelate near me has cited the passage [l Tim. i, 9—10], in which St. Paul mentions 'menstealers' among the greatest miscreants. 'Men-stealers,' as we read in our English Bible. But the word in the original is "L`D"B@`4`J0l. !L`D"B@`4`J0l is literally a 'slave trader,' and no other word in the English language, but slave trader, precisely renders it. It was indeed the technical name for a slave trader in the Attic law."
(r) It appears by Cæsar and Tacitus, that the ancient Germans had a kind of slaves before they emigrated from their own country. See Cæs. de Bell. Gall. lib 6, cap. 13, et Tac. de Mor. German, cap. 24, et 25, et Potgiess, de stat. servor. ap. Germ., lib. 1, cap. 1.
|See H. B. Stowe, Key (1853), p 240, making the same point.|
The history of its decline in Europe has been traced by many eminent writers, particularly
Bartolus, the most famed commentator on the civil law in that period, represents slavery as in disuse, and the succeeding commentators hold much the same language. However, they must be understood with many restrictions and exceptions; and not to mean, that slavery was completely aud universally abolished in Europe. Some modern civilians [laymen], not sufficiently attending to this circumstance rather too hastily reprehend their predecessors for representing slavery as disused in Europe.
The truth is, that the ancient species of slavery by frequent emancipations became greatly diminished in extent; the remnant of it was considerably abated in severity; the disuse of the practice of enslaving captives taken in the wars between Christian powers assisted in preventing the future increase of domestic slavery; and in some countries of Europe, particularly England, a still more effectual method, which I shall explain hereafter, was thought of to perfect the suppression of it.
Such was the expiring state of domestic slavery in Europe at the commencement of the sixteenth century, when the discovery of America and of the western and eastern coasts of Africa gave occasion to the introduction of a new species of slavery. It took its rise from the Portuguese, who, in order to supply the Spaniards with persons able to sustain the fatigue of cultivating their new possessions in America, particularly the islands, opened a trade between Africa and America for the sale of negro slaves. This disgraceful commerce in the human species is said to have begun in the year 1508, when the first importation of negro slaves was made into Hispaniola from the Portuguese settlements on the western coasts of Africa(y).
In 1540 the emperor Charles the fifth [1519-1556] endeavoured to stop the progress of the negro slavery, by orders that all
(s)See his book De Republica [Paris: Apud Iacobum Du-Puys, 1586], cap. 5, "de imperio servili."
(t)Jur. Gent. cap. "de servitute."
(u)Jur. Germ. de statu servorum.
(w)Life of the Emperor Charles the 5th, vol. 1 [London: W. Strahan, 1769].
(x)Observations on the distinction of ranks in civil society [London: Richardson, 1771]. See also Tayl. Elem. Civ. L. 434 to 439 [Ed. Note: Full citation: John Taylor (1704-1766) Elements of the Civil Law (London: 1755)]
(y)Ander. Hist. Comm. v. 1, p. 336.
The expedient of having slaves for labour in America was not long peculiar to the Spaniards; being afterwards adopted by the other Europeans, as they acquired possessions there. In consequence of this general practice, negroes are become a very considerable article in the commerce between Africa and America; and domestic slavery has taken so deep a root in most of our own American colonies, as well as in those of other nations, that there is little probability of ever seeing it generally suppressed.
Here I conclude my observations on domestic slavery in general. I have exhibited a view of its nature, of its bad tendency, of its origin, of the arguments for and against its justice, of its decline in Europe, and the introduction of a new slavery by the European nations into their American colonies.
I shall now examine the attempt to obtrude this new slavery into England. And here it will be material to observe, that if on the declension of slavery in this and other countries of Europe, where it is discountenanced, no means had been devised to obstruct the admission of a new slavery, it would have been vain and fruitless to have attempted superseding the ancient species. But I hope to prove, that our ancestors at least were not so short-sighted; and that long and uninterrupted usage has established rules, as effectual to prevent the revival of slavery, as their humanity was successful in once suppressing it.
1. I apprehend, that this will appear to be the law of England from the manner of making title to a villein.
The only slavery our law-books take the least notice of is that of a villein; by whom was meant, not the mere tenant by villein services, who might be free in his person, but the villein in blood and tenure; and as the English
|(x) See Bodin de Republic. [Paris: Apud Iacobum Du-Puys, 1586], lib. 1, c. 5.
(a) Villenage is used to express sometimes the tenure of lands held by villein-services, and sometimes the personal bondage of the villein; but throughout this argument it is applied in the latter sense only.
The condition of a villein had most of the incidents which I have before described in giving the idea of slavery in general. His service was uncertain and indeterminate, such as his lord thought fit to require; or, as some of our ancient writers(b) express it, he knew not in the evening what he was to do in the morning, he was bound to do whatever he was commanded.
He was liable to beating, imprisonment, and every other chastisement his lord might prescribe, except killing and maiming(c).
He was incapable of acquiring property for his own benefit, the rule being 'quicquid acquiritur servo, acquiritur domino'(d).
He was himself the subject of property; as such saleable and transmissible. If he was a villein regardant, he passed with the manor or land to which he was annexed, but might be severed at the pleasure of his lord(e).
If he was a villein in gross, he was an hereditament or a chattel real according to his
|(b) See the extracts from them in Co. Litt. 116, b.
(c) See Termes de la Ley, edit. of 1567, voc. Villenage—Old Tenures, cap. Villenage—Fitzh. Abr. Coron. 17.—2 Ro. Abr. 1.—-2 Inst.45.—and Co. Litt. 126, 127.
(d) Co. Litt. 117, a.—The words, in pleading seizin of villein-service, are very expressive of the lord's power over the villein's property. In 1 E. 2, 4, it is pleaded, that the lord was seized of the villein and his ancestors 'come affaire rechat de char et de sank et de fille marier et de eux tailler haut et bas, &c.'
The form in 5 E. 2, 157, is, 'come de nos villeynes en fesant de luy notre provost en p'nant de luy rechat de char et de saunk et redemption pur fille et fitz marier de luy et de ces aunc et a tailler haut et bas a notre volente.'
In the first of the above forms there is evidently a misprint; and the reading should be 'a faire rechat' instead of 'affaire rechat.' As to the word 'provost' in the second form, it seems to signify 'plunder,' and perhaps the print should be 'proie' or 'proye' instead of 'provost.'
I was led to this conjecture by the following proverb in Cotgrave's French Dictionary, 'qui a le vilain il a sa proye.' See Cotgr. edit. of 1673, voc. proye. However, in the Latin Entries the word 'provost' is translated 'propositum," which in a barbarous sense of the word may be construed to signify 'will' or 'pleasure,' and will make the passage intelligible. In some Entries 'provost' is translated 'præpositus;' but this word cannot be understood in any sense thiat will make this use of it intelligible.
The forms of plending seizin of villein-services in the Latin Entries are very similar to those I have extracted from the year-books. See Rast. Entr. 401, a.
(e) Litt. sect. 181.
Lastly, the slavery extended to the issue, if both parents were villeins, or if the father only was a villein; our [English] law deriving the condition of the child from that of the father, contrary to the Roman law, in which the rule was partus sequitur ventrum(g).
The origin of villenage is principally(h) to be derived from the wars between our British, Saxon, Danish, and Norman ancestors whilst they were contending for the possession of this country. Judge [Anthony] Fitzherbert [1470-1538], in his reading on the 4th of Edw. 1. [1272-1307], stat. 1, entitled Extenta manerii, supposes villenage to have commenced at the Conquest , by the distribution then made of the forfeited lands and of tbe vanquished inhabitants then resident upon them(i).
But there were many bondmen in England before the Conquest, as appears by the Anglo Saxon laws regulating them; and therefore it would be nearer the truth to attribute the origin of villeins, as well to the preceding wars and revolutions in this country, as to the effects of the Conquest(k).
After the Conquest  many things happily concurred, first to check the progress of domestic slavery in England, and finally to suppress it. The cruel custom of enslaving captives in war being abolished, from that time the accession of a new race of villeins was prevented, and tbe humanity, policy, and necessity of the times were continually wearing out tbe ancient race. Sometimes, no doubt, manumissions were freely granted; but they probably were much oftener
|(f) Bro. Abr. Villenage, 60.—Co. Litt. 117.
(g) Co. Litt. 133. Antiently our law seems to have been very uncertain in this respect. See Glanv. lib. 5, c. 6. Mirr. q. 2, s. 38. Britt. c. 31. But the writers in the reign of Henry the 6th [1422-1461] agree, that our law was as here represented, and from tbe plea of bastardy, which was held to be a peremptory answer to the alIegation of villenage as early as the reign of Edward the 3d [1326-1377], I conjecture, that tbe law was settled in the time of his father [Edward II, 1307-1326]. See Fortesc. Land. Leg. Angl. c. 42., Litt. sect. 187. —43 E. 3, 4, and Bro. Abr. Villenage, 7.
(h) I do not say wholly, because probably there were some slaves in England before the first arrival of the Saxons; and also they and the Danes might bring some few from their own country.
(k) See Spelm. Gloss. voc. Lazzi et Servus. Somn. on Gavelk. 65, and the index to Wilk. Leg. Saxon. tit. Servus.
* Concerning the antiquity of villenage, see something in "A Discourse of Tenures," said to be written by Sir Walter Raleigh [1552-1618], published in Gutch's Collectanea Curiosa, vol. 1, p. 50.
Nonsuit of the lord after appearance
|(l) See Lib. Intrat. 176, a. 177, b. & Bro. Abr. Villenage, 66. It seems however, that if after a Nativo Habendo brought by the lord, the villein, instead of waiting for the lord's proceeding upon it, sued out a Libertate Probanda to remove the question of villenage for trial before the justicess in eyre, on the return of it he was to produce some proof of his free condition; and that if he failed, hie and his pledges were amerced.
But this failure did not entitle the lord to any benefit from his Nativo Habendo, and therefore, if he proceeded in it, and could not prove the villenage, the judgment was for the villein; or if the lord did not proceed, a nonsuit, which was equally fatal to the lord's claim, was the necessary consequence. See 47 H. 3. It. Dev. Fitz. Abr. Villenage, 39.
In truth, the requisition of proof from the villein on the Libertate Probanda, and the amercemeot for want of it, seem to have been mere form; for, as Fitzherbert says, in explaining the effect of the Libertate Probanda,
"the record shall be sent before the justices in eyre, and the lord shall declare thereupon, and the villein shall make his defence and plead thereunto, and the villein shall not declare upon the writ de Libertate Probanda, nor shall any thing be done thereupon; for that writ is but a Supersedeas to surcease for the time, and to adjourn the record and the writ of Nativo Habendo, before the justices in eyre." Fitz. Nat. Br. 77, D.
The several remedies against and for one claimed as a villein are now so little understood, that perhaps a short account of them may be acceptable; more particularly as, by a right conception of them, it will be more easy to determine on tbe force of the argument drawn against the revival of slavery from the rules concerning villenage.
The lord's remedy for a fugitive villein was either by seizure, or by suing out a writ of Nativo Habendo, or Neifty, as it is sometimes called.
1. If the lord seized, the villein's most effectual mode of recoverning liberty was by the writ of Homine Replegiando; which had great advantage over the writ of Habeas Corpus. In the Habeas Corpus tbe return cannot be contested by pleading against the truth of it, and consequently on a Habeas Corpus the
If two plaintiffs joined in a Nativo Habendo, nonsuit of one was a nonsuit of both; but it was otherwise in a Libertate
|question of liberty cannot go to a jury for trial; though indeed the party making a false return is liable to an action for damages, and punishable by the Court for a contempt; and the Court will hear affidavits against the truth of the return, and if not satisfied with it restore the party to his liberty. Therefore, if to a Habeas Corpus villenage was returned as the cause of detainer, the person for whom the writ was sued at the utmost could only have obtained his liberty for the time, and could not have had a regular and final trial of the question.
But in the Homine Replegiando it was otherwise; for if villenage was returned, an Alias issued directing the sheriff to replevy the party on his giving security to answer the claim of villenage afterwards, and the plaintiff might declare for false imprisonment and lay damages, and on the defendant's pleading the villenage had the same opportunity of contesting it, as when impleaded by the lord in a Nativo Habendo. See Fitzh, N. Br. 66. F. et Lib. Intrat. 176, a. 177, b.
2. If the lord sued out a Nativo Habendo, and the villenage was denied, in which case the sheriff could not seize the villein, the lord was then to enter his plaint in the county court; and as the sheriff was not allowed to try the question of villenage in his court, the lord could not have any benefit from the writ, without removing the cause by the writ of Pone into the King's-bench or Common Pleas. [For the count, pleading and judgment in the Nativo Habendo after the removal, see Rast. Entr. 436, 437.]
It is to be observed, that the lord's right of seizure continued notwithstanding his having sued out a Nativo Habendo, unless the villein brought a Libertate Probanda. This Writ, which did not lie except upon a writ of Nativo Habendo previously sued out, was for removal of the lord's plaint in the Nativo Habendo for trial before the justices in eyre or those of the King's bench, and also for protecting the villein from seizure in the mean time.
This latter effect seems to have been the chief reason for suing out the Libertate Probanda; and therefore after the 25th of Edw. 3., stat. 5, c. 18 , which altered the common law, and gives a power of seizure to the lord, notwithstanding the pendency of a Libertate Probanda, that wnt probably fell much into disuse, though subsequent cases, in which it was brought, are to be found in the year-books,. See Fitzh. Nat. 77, to 79, and 11 Hen. 4, 49 .
(m) Co. Litt. 139.
The lord could not prosecute for more than two villeins in one Nativo Habendo, but any number of villeins of the same blood might join in one Libertate Probanda(o).
Manumissions were inferred from the slightest circumstances of mistake or negligence in the lord, from every act or omission which legal refinement could strain into an acknowledgement of the villein's liberty. If the lord vested the ownership of lands in the villein, received homage from him, or gave a bond to him, he was enfranchised.
Suffering the villein to be on a jury, to enter into religion and be professed, or to stay a year and a day in ancient demesne without claim, were enfranchisements.
Bringing ordinary actions against him, joining with him in actions, answering to his action without protestation of villenage, imparling in them or assenting to his imparlance, or suffering him to be vouched without counter-pleading the voucher, were also enfranchisements by implication of law(p).
Most of the constructive manumissions I have mentioned were the received law, even in the reign of the first Edward [1272-1307](q).
I have been the more particular in enumerating these instances of extraordinary favour to liberty; because the anxiety of our ancestors to emancipate the ancient villeins, so well accounts for the establishment of any rules of law calculated to obstruct the introduction of a new stock. It vas natural, that the same opinions, which influenced to disountenance the former, should lead to the prevention of the latter.
I shall not attempt to follow villenage in the several stages of its decline; it being sufficient here to mention the time of its extinction, which, as all agree, happened about the latter end of EIizabeth's reign or soon after the  accession of James(r).
One of the last instances, in which villenage was insisted upon, was Crouch's case reported in Dyer and other books(s). An entry having been made by one Butler on some lands purchased by Crouch, the question was, whether he was Butler's villein regardant; and on two special verdicts, the one in ejectment Mich. 9th and 10th Eliz and the other in assize Easter 11th Eliz. the claim of villenage was disallowed, one of the reasons given for the judgment in both being the want of seizing of the villein's person within 60(t) years, which is the time limited by the 32d of Hen. 8, chap. 2 , in all cases of hereditaments
|(n) Co. Litt. 139.
(o) Fitzh. Nat. Br. 78, C. D.
(p) See Litt sect 202 to 209, and 2 Ro. Abr. 735, 736, and 737.
(q) See Britt. cap. 31, and Mirr. cap. 2, sect 38.
(r) See sir Thomas Smith's Commonwealth, b. 2, c 10, and Barringt. Observ on Ant. Stat., 2d ed., p 232.
(s) See Dy. 266, pl. 11, and 283, pl. 32. .
(t) Accord. Bro. Read. on the Stat. of Limitat., 32 Hen. 8, page 17.
But though villenage itself is obsolete, yet fortunately those rules, by which the claim of it was regulated, are not yet buried in oblivion. These the [publishing] industry of our ancestors has transmitted; nor let us their posterity despise the reverend legacy.
By a strange progress of human affairs, the memory of slavery expired now furnishes one of the chief obstacles to the introduction of slavery attempted to be revived; and the venerable reliques of the learning relative to villenage, so long consigned to gratify the investigating curiosity of the antiquary [historian], or used as a splendid appendage to the ornaments of the scholar, must now be drawn forth from their faithful [library] repositiories for a more noble purpose; to inform and guide the sober judgment of this court, and as I trust to preserve this country from the miseries of domestic slavery.
Littleton(a) says, every villein is either a villein by title of prescription, to wit that he and his ancestors have been villeins time out of memory, or he is a villein by his own confession in a court of record.
And in another place(b), his description of a villein regardant and of a villein in gross shows, that title cannot be made to either without prescription or confession.
Time whereof no memory runs to the contrary, is an inseparable incident to every prescription(c); and therefore, according to Littleton's account of villenage, the lord must prove the slavery ancient and immemorial; or the villein must solemnly confess it to be so in a court of justice.
A still earlier writer lays down the rule in terms equally
|(u)Before this statute of Hen. the 8th [1509-1547], the time of limitation seem to have been the coronation of Hen. 3 [1216-1272], as appears by the form of the Nativo Habendo; though in other writs of right the limitation by 31 E. 1, c. 39 , was from the commencement of the reign of Richard the 1st [1189-1199].
(w) See Co. Entr. 406, b.
(x) Yelv. 2.
(y) This case is only to be found in Hughes' Abridgment, tit. Villenage, pl. 23.
(z) Noy, 27.
(a) Sect. 175.
(b) Sect. 181, 182, & 185.
(c) Litt. sect. 170.
1. The villein in all such suits(e) between him and his lord was stiled nativus as well as villanus; our ancient(f) writers describe a female slave by no other name than that of neif; and the technical name of the only writ in the law for the recovery of a villein is equally remarkable, being always called the Nativo Habendo, or writ of neifty. This peculiarity of denomination, which implies that villenage is a slavery by hirth, might perhaps be deemed too slight a foundation for any solid argument; but when combined with other circumstances more decisive, surely it is not without very considerable force.
2. In pleading villenage where it had not been confessed on some former occasion, the lord always founded his title on prescription. Our year books, and books of entries, are full of the forms used in pleading a title to villeins regardant.
In the Homine Replegiando, and other actions where the plea of villenage was for the purpose of shewing the plaintiff's disability to sue, if the villein was regardant, the defendant alledged, that he was seized of such a manor, and that the plaintiff and his ancestors had been villeins belonging to the manor time out of mind, and that the defendant and his ancestors and all those whose estate he had in the manor, had been seized of the plaintiff and all his ancestors as of villeins belonging to it(g).
In the Nativo Habendo the form of making title to a villein regardant was in substance the same(h).
In fact, regardancy necessarily implies prescription, being where one and his ancestors have been annexed to a manor time out of the memory of man(i).
As to villeins in gross, the cases relative to them are very few; and I am inclined to think, that there never was any great number of them in England.
The author of the Mirroir(k), who wrote in the reign of Edward the 2d [1307-1326], only mentions villeins regardant: and sir Thomas Smith [1513-1577], who was secretary of state in the reign of Edward the 6th [1547-1553], says, that in his time he never knew a villein in gross throughout the realm(l).
|(d) 'Nul ne poit estre villeyn forsque de auncienne nativite ou par recognizance.' Britt. Wing. ed. cap. 31, p. 78.
(e) See the form of the writs of Nativo Habendo and Libertate Probanda, and also of the Alias Homine Replegiando, where on the first writ the sheriff returns the claim of villenage.
(f) Brit. cap. 31 & Litt. sect. 186.
(g) See Rast. Entr. tit. Homine Replegiando, 373, & Lib. Intrat. 36.
(h) See the form in Lib. Intrat. 97, & Rast. Entr. 401.
(i) This is agreeable to what Littleton says in sect. 182.
(k) Mirr. c. 2, § 38.
(l) Smith's Commonwealth, b. 2, c. 10.
But if precedents had been wanting, the authority of Litteton, according to whom the title to villenage of each kind, unless it has been confessed, must be by prescription, would not have left the least room for supposing the pleading of a prescription less necessary on the claim of villeins in gross than of those regardant.
3. The kind of evidence, which the law required to prove villenage, and allowed in disproof of it, is only applicable to a slavery in blood and family, one uninterruptedly transmitted through a long line of ancestors to the person against whom it was alleged. On the lord's part, it was necessary that he should prove the slavery against his villein by other villeins of the same blood(o), such as were descended from the same common male stock, and would acknowledge themselves villeins to the lord(p), or those from whom he derived
|(m) See 1 E. 2, 4.—5 E. 2, 15.—7 E. 2, 242, & 11 E. 2, 344. In 13 E. 4, 2, b. pl. 4, & 3 b. pl. 11, there is a case in which villenage in gross is pleaded, where one became a villein in gross by severance from the manor to which he had been regardant. This being the only case of the kind I have met with, I will state so much of it from the year book as is necessary to shew the manner of pleading.|
In trespass the defendant pleads, that a manor, to which the plaintiff's father was a villein regardant, was given to an ancestor of the defendant in tail; and that the manor descended to Cecil and Catharine; and that on partition between them, the villein with some lands was allotted to Cecil, and the manor to Catharine; and then the defendant conveyed the villein from Cecil to himself as heir.
(n) 11 F. 2, 341.
(o) See Bro. Abr. Villenage, 66 Reg. Br. 87, a. Old Nat. Br. 43, b. Fitz. Abr. Villenage, 38, 39. A bastard was not receivable to prove villenage, 13 E. 1. It. North. Fitzh. Abr. 36, & Britt. Wing. edit. 82, a.
(p) In [Anthony] Fitzherbert's Natura Brevium, 79, B., it is said, that the witnesses must acknowledge themselves villeins to the plaintiff in the Nativo Habendo; and there are many authorities which favour the opinion. See Glanv. lib. 5, c. 4. Britt. Wing. ed.31, a. 19 Hen. 6, 32 b. Old Tenures, chap. Villenage; and the form in which the confession of villenage by the plaintiff's witnesses is recorded, in Rast. Entr. tit. Nativo Habendo, 401, a. However, it must be confessed, that in Fitzberbert the opinion is delivered with a quære; and it is so irreconcible with the lord's right of granting villeins, as it is stated by Littleton, sect. 131, that I will not insist upon it here.
|(q) Fitzh. Nat. Br. 78, H. & Fitzh. Abr. Villenage, 36 & 37.—Also Britton says, 'un masle sauns plusurs nest mie receivable.' Britt. Wingate's ed. p. 82. It is remarkable that females, whether sole or married, were not receivable to prove villenage against men, 'Saunk de un home ne puit ne doit estre trie
par femmes.' Britt. Wing. ed. p. 82. The reason assigned is more antient than polite. It is said to be 'pur lour fraylte,' and also because a man 'est pluis digne person que une feme' 13 E. 1. Fitzh. Abr. Villenage, 37*
*"Antiently in Scotland the testimony of women was not admitted in any case. 'Ane woman may not pass upon assize or be witness, nather in ony instrument or contract, nor zit for preiving of ane persoun's age. Nevertheless gif thair be ony contraverser tuiching the age of ony persoun, the mother or the nurice may be ressavit as witnessis fur preiving thairof.'" Balfour's Practicks, p. 378.
"By our constant usage, women are not admitted as instrumentary witnesses, and as universal custom is law, so I doubt not but it will be a nullity in any writing that is attested by witnesses, who are both or even one of them women. And though the act 1681, mentions a subscribing witness with the masculine particle (he), yet that without the subsequent usage is not exclusive of women." Bankton's lnst. b. 1, tit. 1, sect. 7.
"Of old, women were rejected in most cases, but they are for most part admitted, unless where the parties ought to have called witnesses, for then they have tbemselves to blame that did not make use of others, and therefore women are altogether incompetent witnesses to deeds of parties, testaments,or instruments of notaries." Bankton, book 4, tit. 33, s. 20.
So Stair (book 4, tit. 43, s. 9,) says, that in civil cases women are not to be admitted as witnesses, except necessary.
Sir George Mackenzie (Probation by Witnesses) says, "Women regulariter are not witnesses, neither in civil or criminal cases with us, nor should they make as much faith with us, in criminalibus. The reason why women are excluded from witnessing, must be either that they are subject to too much compassion, and so ought not to be more received in criminal cases, than in any civil cases; or else the law was unwilling to trouble them, and thought it might learn them too much confidence, and make them subject to too much familiarity with men, and strangers, if they were necessitated to vague up and down at all courts, upon all occasions." See his Criminals, title 26, s. 4.
Erskine (hook 4, tit. 2, sect. 22,) instructs us, that women were rather exempted than debarred from giving testimony.
Of the progress of the relaxation of this rule I know not of any circumstantial history.
Mr. Hume (Comm. chap. 13,) and Mr. Bur-
In other actions, the production of suit or witnesses by the plaintiff, previously to the defendant's pleading, fell into disuse sometime in the reign of Edward the third [1326-1377]; and ever since, the entry of such production on the rolls of the court has been mere form, being always with an &c. and without naming the witnesses.
But in the Nativo Habendo, the actual production of the suit, and also the examination of them, unless the defendant released(t) it in court, continued to be indispensable even down to the time when villenage(u) expired.—Such was the sort of testimony, by which only the lord could support the title of slavery; nor were the means of defense on the part of the villein less remarkable. If he could prove that the slavery was not in his blood and family, he intitled himself to liberty.
The author of the Mirroir(w) expressly says, that proof of a free stock was an effectual defence against the claim of villenage; and even in the time of Henry the second [1154-1189], the law of England was in this respect the same, as appears by the words of Glanville. In his chapter of the trial(x) of liberty, he says, that
|(r) Fitz. Nat. Br. 78, H. Fitzh. Abr. Vi!lenage 32 Lab. Intrat. 97. Rast. Entr. 401. Reg. Br. 87.
(s) In Fitzh. Abr. Villenage, 38, there is an instance of such a judgment, merely for the plaintiff's failure in the production of his witnesses at the time of declaring on his title.
(t) See 19 H. 6, 32 b. a case in which the defendant releases the examination of the suit.
(u) The last entry in print of the proceedings in a Nativo Hahendo contains the names of the secta or suit produced, and their acknowledgment of villenage on oath. See the case of Jerney against Finch, Hill. 18 Eliz. C. B. Co. Entr. 406, b.
(w)Mirr. c. 2, § 28.
(x) Glenv. lib. 5, c 4.
nett (Treatise on var. branch. of the Crim. Law of Scotland, chap. 17,) have cited several cases, and quoted other authorities, from which it appears that the rule was recognized to so late a period as the beginning of the 18th century. It is now abrogated (how or when I have not seen distinctly stated) "except" says Mr. [John] Burnett [1764-1810] "in the case of instrumentary witnesses, where women are in practice still excluded. I know of no case, however, where this point was ever argued, or received a decision: and it is doubtful whether such an objection would now be sustained."
'plures de proximis et consanguineis de eodem stipite unde ipse exierat exeuntes; per quorum libertates, si fuerint in curiâ recognitæ et probitæ, liberabitur à jugo servitutis qui ad libertatem proclamatur.'
But the special defences which the law permitted against villenage are still more observable; and prove it beyond a contradiction to be what the author of the Mirroir emphatically stiles it(y), a slavery of so great an antiquity that no free stock can be found by human remembrance.
Whenever the lord sued to recover a villein by a Nativo Habenda, or alledged villenage in other actions as a disability to sue, the person claimed as a villein might either plead generally that he was of free condition, and on the trial of this general issue avail himself of every kind of defence which the law permits against villenage; or he might plead specially any single fact or thing, which if true was of itself a legal bar to the claim of villenage, and in that case the lord was compellable to answer the special matter.
Of this special kind were the pleas of bastardy and adventif. The former was an allegation by the supposed villein that either himself or his father, grand-father or other male ancestor, was born out of matrimony; and this plea, however remote the ancestor in whom the bastardy was alleged, was peremptory to the lord; that is, if true it destroyed the claim of villenage, and therefore the lord could only support his title by denying the fact of bastardy.
This appears to have been the law from a great variety of the most ancient authorities.The first of them is a determined case so early as the 13th of Edward the second [1307-1326](z), and in all the subsequent cases(a) the doctrine is received for law without once being drawn into question.
In one of them(b) the reason why bastardy is a good plea in a bar against villenage is expressed in a very peculiar manner; for the words of the book are, "when one claims any man as his villein, it shall be intended always that he is his villein by reason of stock, and this is the reason that there shall be an answer to the special matter where he alleges bastardy, because if his ancestor was a bastard, he can never be a villein, unless by sub-
|(y) 'Est subjection issuant de cy grand antiquite, que nul franke ceppe purra estre trove per humane remembrance.' Mirr. c. 2, § 28.
(z) 13 E. 2, 408.
(a) Hill. 19 E. 2. Fitzh. Abr. Villenage, 32.—39 E. 3, 36.—43 E. 3, 4.—19 Hen. 6, 11 & 12.—19 Hen. 6, 17.—Old Tenures, chap. Villenage.—Co. Litt. 123, a. In the case 19 H. 6, 17, there is something on the trial of bastardy in cases of villenage, explaining when it shall be tried by the bishop's certificate and when by a jury. See on the same subject Fitzb. Abr. Villenage, 32, & Lib. Intrat., 35, a. which latter book contains the record of a case where the trial was by the bishop.
(b) 43 E. 3, 4.
The force of this reason will appear fully on recollection, that the law of England always derives the condition of the issue from that of the father, and that the father of a bastard being in law uncertain(c), it was therefore impossible to prove a bastard a slave by descent.
In respect to the plea of adventif, there is some little confusion in the explanation, our year-books give us, of the persons to whom the description of advetif is applicable; but the form of the plea will best shew the precise meaning of it. It alledged(d), that either the person himself who was claimed as a villein regardant to a manor, or one of his ancestors, was born in a county different from that in which the manor was, and so was free, which was held to be a necessary conclusion to the plea. This in general was the form of the plea, but sometimes it was more particular, as in the following case(e).
In trespass, the defendant pleads that the plaintiff is his villein regardant to his manor of Dale; the plaintiff replies, that his great-grandfather was born in C, in the county of N, and from thence went into the county of S, and took lands held in bondage within the manor to which the plaintiff is supposed to be a villein regardant, and so after time of memory his great-grandfather was adventif.
It is from this case, that the plea of adventif was calculated to destroy the claim to villenage regardant, by shewing that the connection of the supposed villein and his ancestors with the manor to which they were supposed to be regardant, had begun within time of memory; and as holding lands by villein-services was anciently deemed a mark(f), though not a certain one, of personal bondage, I conjecture that this special matter was never pleaded, except to distinguish the mere tenant by villein services from the villein in blood as well as tenure.
But whatever might be the cases proper for the plea of adventif, it is one other incontrovertible proof, in addition to the proofs already mentioned, that no slavery having had commencement within time of memory was lawful in England; and that if one ancestor could be found whose blood was untarnished with the stain of slavery, the title of villenage was no longer capable of being sustained.
|(c) Co. Litt. 123, a.
(d) 13 E. 1. It. North. Fitz. Abr. Villenage 36. 19 E. 2. Fitz. Abr. Villenage 32. 53 E. 3. Fitz. Abr. Visne 2.—39 E. 3, 36.—41 E. 3. Fitz. Abr. Villenage 7.—13 E. 3, 31.—50 E. 3. Fitz. Abr. Villenage, 24.—19 H. 6, 11.—19 H 6,17.
(e) 31 E. 3. Fitz. Abr. Visne 1.
(f) [Anthony] Fitzherbert [1470-1538], says, "if a man dwells on lands which have been held in villenage time out of mind, he shall be a villein, and it is a good prescription; and against this prescription it is a good plea to say that his father or grandfather was adventif," &c. Fitz. Abr. Villenage 24.
Such were the striking peculiarities in the manner of making title to a villein, and of contesting the question of liberty; and it is scarce possible to attend to the enumeration of them, without anticipating me in the inferences I have to make.—The law of England
But in our American colonies and other countries slavery may be by captivity or contract as well as by birth; no prescription is requisite; nor is it necessary that slavery should be in the blood and family and immemorial.
|Ed. Note: See our data on unconstitutionality of U.S. slavery.|
Therefore the law of England is not applicable to the slavery of our American colonies, or of other countries.—If the law of England would permit the introduction of a slavery commencing out of England, the rules it prescribes for trying the title to a slave would be applicable to such a slavery, but they are not so; and from thence it is evident that the introduction of such a slavery is not permitted by the law of England.—The law of England then excludes every slavery not commencing in England, every slavery though commencing there not being antient and immemorial.
Villenage is the only slavery which can possibly answer to such a description, and that has long expired by the deaths and emancipations of all those who were once the objects of it. Consequently there is now no slavery which can be lawful in England, until the legislature [Parliament] shall interpose its authority to make it so.
|Ed. Note: It never allowed slavery.|
This is plain, unadorned, and direct reasoning; it wants no aid from the colours of art, nor the embellishments of language; it is composed of necessary inferences from facts and rules of law, which do not admit of contradiction; and I think, that it must be vain to attempt shaking a superstructure raised on such solid foundations.
As to the other arguments I have to adduce against the revival of demestic slavery, I do confess that they are less powerful, being merely presumptive. But then I must add, that they are strong and violent presumptions; such as furnish more certain grounds of judicial decision than are to be had in many of the cases which become the subject of legal controversy. For,
2dly. I infer that the law of England will not permit a new slavery, from the fact of there never yet having been any slavery but villenage, and from the actual extinction of that antient slavery. If a new slavery could have law-
If a new race of slaves could have been introduced under the denomination of villeins, if a new slavery could have been from time to time engrafted on the antient stock, would the laws of villenage have once become obsolete for want of objects, or would not a successive supply of slaves have continued their operation to the present times?
But notwithstanding the vast extent of our commercial connections, the fact is confessedly otherwise. The antient slavery has once expired; neither natives nor foreigners have yet succeeded in the introduction of a new slavery; and from thence the strongest presumption arises, that the law of England doth not permit such an introduction.
3dly, I insist, that the unlawfulness of introducing a new slavery into England, from our American colonies or from any other country, is deducihle from the rules of the English law concerning contracts of service. The law of England will not permit any man to enslave himself by contract. The utmost, which our law allows, is a contract to serve for life; and some perhaps may even doubt the validity of such a contract, there being no determined cases [precedents] directly affirming its lawfulness.
In the reign of Henry the 4th [1399-1413](g), there is [a precedent] a case of debt, brought by a servant against the master's executors, on a retainer to serve for term of life in peace and war for 100 shillings a year; but it was held, that debt did not lie for want [lack] of a speciality; which, as was agreed, would not have been necessary in the case of a common labourer's salary, because, as the case is explained by Brooke in abridging [reporting] it, the latter is bound to serve by statute(h).
This case is the only one I can find, in which a contract to serve for life is mentioned; and even in this case, there is no judicial decision on the force [validity] of it. Nor did the nature of the case require any opinion upon such a contract; the action not being to establish the contract against the servant, but to enforce payment against the master's executors for arrears of salary in respect of service actually performed; and therefore this case will scarce bear any inference in favour of a contract to serve for life.
Certain also it is, that a service for life in England is not usual, except in the case of a military person; whose service, though in effect for life, is rather so by the operation of the yearly acts for regulating the army, and of the perpetual act for governing the navy, than in consequence of any express agreement. However, I do not mean absolutely to deny the lawfulness of agreeing to serve for life; nor will the inferences I shall draw from the rules of law concerning servitude by contract, be in the least affected by admitting
|(g) 2 H. 4, 14.
(h) Bro. Abr. Dett. 53.
In other words, it [the law] will not permit the servant [employee] to incorporate into his contract [with an employer] the ingredients of slavery. And why is it that the law of England [and the U.S.] rejects a contract of slavery? The only reason to be assigned is, that the law of England, acknowledging only the antient slavery which is now expired, will not allow the introduction of a new species, even though founded on consent of the party.
|Ed. Note: People cannot lawfully consent to self-harm.|
The same reason operates with double force against a new slavery founded on captivity in war, and introduced from another country. Will the law of England condemn a new slavery commencing by consent of the party, and at the same time approve of one founded on force, and most probably on oppression also? Will the law of England invalidate a new slavery commencing in this country, when the title to the slavery may be fairly examined; and at the same time give effect to a new slavery introduced from another country, when disproof of the slavery must generally be impossible?
This would be rejecting and receiving a new slavery at the same moment; rejecting slavery the least odious, receiving slavery the most odious: aud by such an inconsistency, the wisdom and justice of the English [and thus U.S.] Law would be completely dishonoured. Nor will this reasoning be weakened by observing that our law permitted villenage, which was a slavery confessed to originate from force and captivity in war; because that was a slavery coeval with the first formation of the English constitution, and consequently had a commencement here prior to the establishment of those rules which the common law furnishes against slavery by contract.
Having thus explained the three great arguments which I oppose to the introduction of domestic slavery from our American colonies,
|(i) Lord [Henry] Hobart [Chief Justice of the Common Pleas, 1625] says, "the body of a freeman cannot be made subject to distress or imprisonment by contract, but only by [due process] judgment." Hob. 61. I shall have occasion to make use of this authority again in a subsequent part of this argument.
(k)Mr. [Charles] Molloy [1646-1690] thinks, that servants may contract to serve for life; but then he adds, "but at this day there is no contract of the ancestor can oblige his posterity to an hereditary service; nor can such as accept those servants exercise the ancient right or dominion over them, no not so much as to use an extraordinary rigour, without subjecting themselves to the law." Moll. de Jur. Marit. lst ed. [London: J. Bellinger, 1676], b. 3, c. 1, s. 7, p. 338.
|"That in the 11th [year] of Elizabeth , one Cartwright brought a slave from Russia and would [attempted to] scourge [whip, assault] him; for which he was questioned [charged with assault]; and it was resolved, that England was too pure an air for a slave to breathe in [meaning, slavery isn't allowed]."|
In order to judge what degree of credit is due to the representation of this case, it will be proper to state from whom Mr. Rushworth reports it. In 1637, there was a proceeding by information in the Star Chamber against the famous John Lilburne, for printing and publishing a libel; and for his contempt in refusing to answer interrogatories, he was by order of the Court imprisoned till he should answer, and also whipped, pilloried, and fined. His imprisonment continued till 1640, when the Long Parliament began. He was then released, and the House of Commons impeached the judges of the Star Chamber for their proceedings against Lillburne.
In speaking to this impeachment, the managers of the Commons cited the case of the Russian slave. Therefore the truth of the case doth not depend upon John Lilburne's assertion, as the learned observer on the antient statutes(m) seems to apprehend, but rests upon the credit due to the managers of the Commons.
When this [fact about the source] is considered, and that the year of the reign in which the case happened is mentioned, with the name of the person who brought the slave into England; that not above 72 or 73 years had intervened between the fact and the relation of it; and also that the case could not be supposed to have any influence on the fate of the impeachment against the judges, I see no great objection to a belief of the case.
If the account of it is true, the plain inference from it is, that the slave was become free by his arrival in England. Any other construction renders the case unintelligible, because scourging, or even correction of a severer kind, was allowed by the law of England to the lord in the punishment of his villein; and consequently, if our law recognized the [legality of continuing in England the slavery of the] Russian slave, his master would have been justified in scourging [whipping] him.
|(l) Rushw. v. 2, p. 468.
(m) Barr. Observ. on Ant. Stat. 2d edit., p 211.
(n) 2 Lev. 201, and 3 Keb. 785 [84 ER 1011]. See Hill. 29 Char. 2, B. R. Rpt. 1116.
(o) According to Levinz, the action was for 200 negroes; but it is a mistake, the record only mentioning 10.
The Court held, that negroes being usually bought and sold anongst merchants in India, and being infidels(p), there might be a property in them sufficient to maintain the action; and it said that judgment Nisi was given for the plaintiff, but that on the prayer [petition] of the counsel for the defendant to be further heard in the case, time was given till the next term.
In this way our reporters state the case; and if nothing further appeared, it might be cited as an authority, though a very feeble one, to shew that the master's property in his negro slaves continues after their arrival in England, and consequent1y that the negroes are not emancipated by being brought here.
But having a suspicion of some defect in the state of the case, I desired an examination of the Roll(q); and according to the account of it given to me, though the declaration is for negroes generally in London, without any mention of foreign parts, yet from the special verdict it appears that the action was really brought to recover the value of negroes, of which the plaintiff had been possessed, not in England, but in India. Therefore this case would prove nothing in favor of slavery in England, even if it had received the Court's judgment, which however it never did receive, there being only an 'ulterius consilium' on the Roll.
The next case of trover was between Gelly and Cleve in the Common-Pleas, and was ad-
|(p) According to this reasoning, it is lawful to have an infidel slave, but not a Christian one. This distinction, between persons of opposite persuasions in religion, is very ancient. Amongst the Jews, the condition of the Hebrew slave had many advantages over that of a slave of foreign extraction. (See sec. 37, of the Dissertation on Slavery prefixed to Potgiesser, Jur. Germ. de Stat. Serv.)
Formerly too the Mohamedans pretended, that their religion did not allow them to enslave such as should embrace it; but, as [Jean] Bodin [1530-1596] says, the opinion was little attended to in practice. (See Bodin, de Republica [Paris: Apud Iacobum Du-Puys, 1586], lib. 1, cap. 5, de imperio servili.)
A like distinction was made in very early times amongst Christians; and the author of the Mirroir in one place expresses himself, as if the distinction had been adopted by the law of England. (See the Mirr. c. 2. s. 23.) But our other ancient writers do not take the least notice of such a distinction, nor do I find it once mentioned in the year-books; which are therefore strong presumptive evidence against the reception of it in our courts of justice as law, however the opinion may have prevailed amongst divines and others in speculation. See Barr. Observ. on Ant. Stat., 2 edit., p. 239.
(q) The Roll was examined for me by a friend.
On examination of the Roll(s), I find that the action was brought for various articles of merchandize as well as the negro; and I suspect, that in this case, as well as the former one of Butts and Penny, the action was for a negro in America; but the declaration being laid generally, and there being no special verdict, it is now too late to ascertain the fact.
I will therefore suppose the action to have been for a negro in England, and admit that it tends to show the lawfulness of having negro slaves in England. But then if the case is to be understood in this sense, I say that it appears to have been adjudged without solemn argument; that there is no reasoning in the report of this case to impeach the principles of law on which I have argued against the revival of slavery in England; that unless those principles can be controverted with success, it will be impossible to sustain the authority of such a case; and further, that it stands contradicted by a subsequent case; in which the question of slavery came directly before the Court.
The only other reported case of trover is that of Smith against Gould, which was adjudged, Mich. 4 Ann, in the King's-bench. In trover(t) for several things, and among the rest for a negro, not guilty was pleaded, and there was a verdict for the plaintiff with several damages, 30£ being given for the negro; and after argument on a motion in arrest of judgment, the Court held, that trover did not lie for a negro.
If in this case the action was for a negro in England, the judgment in it is a direct contradiction to the case of Gelly and Cleve. But I am inclined to think, that in this, as well as in the former cases of trover, the negroes for which the actions were brought, were not in England; and that in all of them, the question was not on the lawfulness of having negro slaves in England, but merely whether trover was the proper kind of action for recovering the value of a negro unlawfully detained from the owner in America and India.
The things for which trover in general lies, are those in which the owner has an absolute property, without limitation in the use of them; whereas the master's power over the slave doth not extend to his life, aud consequently the master's property in the slave is in some degree qualified and limited.
Supposing therefore the cases of trover to have been determined on this distinction, I will not insist upon any present benefit from them in argument; though the last of them, if it will bear any material
|(r)(r) 1 L. Raym. 147.
(s) See Trin. 5 W. & M. C. B. Roll, N° 407.
(t) 2 Salk. 666.—See also, 1 L. Raym. 147.
The next case I shall state is a judgment by the King's bench in Hilary 8th and 9th of William the 3d [1689-1702], Trespass was brought by Chamberlain(u) against Harvey, for taking a negro of the value of 100£, and by the special verdict it appears, that the negro, for which the plaintiff sued, had been brought from Barbadoes into England, and was here baptized without the plaintiff's consent, and at the time when the trespass was alleged, was in the defendant's service and had 6£ a year for wages. In the argument of this case, three questions were made.
After several arguments, the Court gave judgment against the plaintiff. But I do confess, that in the reports we have of the case, no opinion on the great question of slavery is mentioned; it becoming unnecessary to declare one, as the Court held, that. the action should have been an action to recover damages for the loss of the service, and not to recover the value of the slave. Of this case, therefore, I shall not attempt to avail myself.
But the next case, which was an action of Indebitatus Assumpsit in the King's-bench by Smith against Browne and Cowper(x), is more to the purpose. The plaintiff declared for 20£ for a negro sold by him to the defendants in London; and on motion in arrest of judgment, the Court held, that the plantiff should have averred [stated] in the declaration [lawsuit papers],
|Ed. Note: No such laws existed, so could not be identified, "averred".|
In these words there is a direct opinion against the slavery of negroes in England: for if it was lawful, the negro would have been saleable and transferable here, as well as in Virginia; and stating, that the negro at the tine of the sale was in Virginia, could not have been essential to the
|(u) 1 L. Raym. 146. Carth. 396, and 5 Mod. 186.
(w) The facts which occasioned this question, 1 have omitted in the state of the case; because they are not material to the question of slavery in England.
(x) 2 Salk. 666. The case is not reported in any other book; and in Salkeld the time when the case was determined is omitted. But it appears to have been in the King's-bench, by the mention of lord chief justice Holt and Mr. J. Powell.
(y) The reporter adds, that the Court directed, that the plaintiff should amend his declaration. But after verdict it cannot surely be the practice to permit so essential an amendment; and therefore the reporter must have misunderstood the Court's direction.
I beg leave to mention one other case, chiefly for the sake of introducing a strong expression of the late lord chancellor Northington. It is the case of Shanley and Hervey [2 Eden 126], which was determined in Chancery some time in March 1762. The question was between a negro and his former master, who claimed the benefit of a 'donation mortis causâ' made to the negro by a lady on whom he had attended as servant for several years by the permission of his master. Lord Northington, as I am informed by a friend who was present at the hearing of the cause, disallowed the master's claim with great warmth, and gave [court] costs to the negro. He particularly said,
''As soon as a man puts foot on English ground, he is free: a negro may maintain an action against his master for ill usage [reparations], and may have a Habeas Corpus, if restrained of his liberty''(z).
|(z) In the above enumeration of cases, I have omitted one, which was sir Thomas Grantham's case in the Common-Pleas, Hilary 2 & 3 Jam. 2 . Being short, I shall give it in the words of the Report.|
"He bought a monster [Ed. Note: person with birth defects] in the Indies, which was a man of that country, who had the shape of a child growing out of his breast as an excrescency all but his head. This man he brought hither, and exposed to the sight of the people for profit [circus-freak-style]. The Indian turns Christian and was baptized, and was detained from his master, who brought a Homine Replegiando. The sheriff returned [replied], that he had replevied the body [the man]; but doth not say the body in which sir Thomas claimed a property; whereupon he was ordered to amend his return [reply], and then the Court of Common-Pleas bailed him." 3 Mod. 120.It doth not appear that the return was ever argued, or that the Court gave any opinion on this case; and therefore nothing can be inferred from it.
1. It may be asked, why it is that the law should permit the ancient slavery of the villein, and yet disallow a slavery of modern commencement?
To this I answer, that villenage sprung up amongst our ancestors in the early and barbarous state of society; that afterwards more humane customs and wiser opinions prevailed, and by their influence rules were established for checking [limiting] the progress of slavery; and that it was thought most prudent to effect this great object, not instantaneously by declaring every slavery unlawful, but gradually by excluding a new race of slaves, and encouraging the voluntary emancipation of the ancient race. It might have seemed an arbitrary exertion of power, by a retrospective law to have annihilated property, which, however inconvenient, was already vested under the sanction of existing laws, by lawful means; but it was policy without injustice to restrain future acquisitions.
2. It may be said, that as there is nothing to hinder persons of free condition from becoming slaves by acknowledging themselves to be villeins, therefore a new slavery is not contrary to law.
The force of this objection arises from a supposition, that confession or acknowledgment of villenage is a legal mode of creating slavery; but on examining tbe nature of the acknowledgment, it will be evident, that the law doth not permit villenage to be acknowledged for any such purpose. The term itself imports something widely different from creation; the acknowledgment, or confession of a thing, implying that the thing acknowledged or confessed has a previous existence; and in all cases, criminal as well as civil, the law intends, that no man will confess an untruth to his own disadvantage, and therefore never requires proof of that which is admitted to be true by the person interested to deny it.
Besides, it is not allowable to institute a proceeding for the avowed and direct purpose of acknowledging villenage; for the law will not allow the confession of it to be received, except where villenage is alledged in an adverse way; that is, only(a)
|(a) Co. Litt. 121, b.|
On a consideration of these circumstances attending the acknowledgment of villenage, I think it impossible to doubt its being merely a confession of that antiquity in the slavery, which was otherwise necessary to be proved. But if a doubt can be entertained, the opinions of the greatest lawyers may be produced to remove it, and to shew, that, in consideration of law, the person was a villein by descent and in blood.
In the yearbook of 43 E. 3(b), it is laid down as a general rule, "that when one claims any man as his villein, it shall be intended always that he is his villein by reason of stock."
Lord chief justice [Henry] Hobart considers villenage by confession in this way, and says(c), "the confession in the court of record is not so much a creation, as it is in supposal of law a declaration of rightful villenage before, as a confession in other actions."
Mr. Serjeant Rolle too, in his abridgment, when he is writing on villenage by acknowledgment, uses very strong words to the same effect. He says in one place(d), "it seems intended that title is made that he should be a villein by descent," and in another place(e), "it seems intended that title is made by prescription, wherefore the issue should also be villeins."
The only instance 1 can find, of a Nativo Habendo founded on a previous acknowledgment of villenage, is a strong authority to the same purpose. In the 19th of Edward 2 [1307-1326],(f) the dean and chapter of London brought a writ of Neifty to recover a villein, and concluded their declaration with mentioning his acknowledgment of the villenage on a former occasion, instead of producing their suit, or witnesses, as was necessary when the villenage had not been confessed: but. notwithstanding the acknowledgment, the plaintiff's alledged a seizin of the villein with esplees, or receipt of profits from him, in the usual manner.
This case is another proof, that a seizin previous to the acknowledgment was the real foundation of the lord's claim, and that the acknowledgment was merely used to estop the villein from contesting a fact which had been before solemnly confessed. However, I do admit, that under the form of acknowledgment there was a possibility of collusively creating slavery. But this was not practicable without the concurrence of the person himself who was to be
|(b) 43 E. 3. 4.
(c) Hob. 99.
(d) 2 Ro. Abr. 732. pl. 6.
(e) Ib. pl. 8.
(f) Fitz. Abr. Villenage, 34.
It should also be remembered, that such a collusion could scarcely be wholly prevented, so long as any of the real and unmanumitted descendants from the antient villeins remained; because there would have been the same possibility of defrauding the law on the actual trial of villenage, as by a previous acknowledgment.
Besides, if collusions of this sort had ever become frequent, the legislature might have prevented their effect by an extraordinary remedy. It seems, that antiently such frauds were sometimes practiced; and that free persons, in order to evade the trial of actions brought against them, alledged that they were villeins to a stranger to the suit, which, on account of the great improbability that a confession so disadvantageous should be void of truth, was a plea the common law did not suffer the plaintiff to deny. But a remedy was soon applied, and the statute of(g) 37 E 3. was made, giving to the plaintiff a liberty of contesting such an allegation of villenage.
If in these times it should be endeavoured to revive domestic slavery in England, by a like fraudulent confession of villenage, surely so unworthy an attempt, so gross an evasion of the law, would excite in this court the strongest disapprobation and resentment, and from Parliament would receive an immediate and effectual remedy; I mean, a law declaring that villenage, as is most notoriously the fact, has been long expired for want of real objects, and therefore making void all precedent confessions of it, and prohibiting the courts of justice from recording a confession of villenage in future.
3. It may be objected, that though it is not usual in the wars between Christian powers to enslave prisoners, yet that some nations, particularly the several states on the coast of Barbary, still adhere to that inhuman practice; and that in case of our being at war with them, the law of nations would justify our king in retaliating, and consequently, that the law of England has not excluded the possibility of introducing a new slavery, as the arguments against it suppose.
But this objection may be easily answered; for if the arguments against a new slavery in England are well founded, they reach the king as well as his subjects. If it has been at all times the policy of the law of England not to recognize any slavery but the ancient one of the villein, which is now expired; we cannot consistently attribute to the executive power a prerogative of rendering that policy ineffectual.
It is true, that the law of nations may
|(g) 37 E. 3, c. 16.|
A writer of eminence [Dr. Thomas Rutherforth](h) on the law of nations, has a passage very applicable to this subject. His words are, "If the civil law of any nation does not allow of slavery, prisoners of war who are taken by that nation cannot be made slaves." He is justified in his observation not only by the reason of the thing, but by the practice of some nations, where slavery is as unlawful as it is in England.
The Dutch(i) when at war with the Algerines, Tunisians, or Tripolitans, make no scruple of retaliating on their enemies; but slavery not being lawful in their European dominions, they have usually sold their prisoners of war as slaves in Spain, where slavery is still permitted.
To this example I have only to add, that I do not know an instance, in which a prerogative of having captive slaves in England has ever been assumed by the crown; and it being also the policy of our law not to admit a new slavery, there appears neither reason nor fact to suppose the existence of a royal prerogative to introduce it.
4. Another objection will be, that there are English acts of parliament, which give a sanction to the slavery of negroes; and therefore that it is now lawful, whatever it might be antecedently to those statutes.
The statutes in favour of this objection are the 5 Geo. 2, c. 7,(k), which makes negroes in America liable to all debts, simple-contract as well as speciality, and the statutes regulating the African trade, particularly the 32 Geo. 2, c. 31, which in the preamble recites, that the trade to Africa is advantageous to Great Britain, and necessary for supplying its colonies with negroes. But the utmost which can be said of these statutes is, that they impliedly authorize the slavery of negroes in America; and it would be a strange thing to say, that permitting slavery there, includes a permission of slavery here.
By an unhappy concurrence of circumstances, the slavery of negroes is thought to have become necessary in America; and therefore in America our legislature has permitted the slavery of negroes.
|Ed. Note: Actually, slavery was NOT permitted in America; the actual words of the laws cited did NOT authorize slavery.|
But the slavery of negroes is unnecessary in England,
|(h) Rutherf. Inst. Nat. L. v. 2, p. 576.
(i) 'Quia ipsa servitus inter Christianos ferè exolevit, eâ quoque non unmur in hostes captos. Possumus tamen si ita placeat; imo utimur quandoque adversus eos, qui in nos ntuntur. Quare et Belgæ quos Algerienses, Tunitanos, Tripolenses, in Oceano aut Mari Mediterraneo capiunt, solent in servitutem Hispanis vendere, nam ipsi Belgæ servos non habent, nisi in Asià, Africà et Americà. Quin anno 1661, Ordines Generales Admiralio suo mandârunt, pirates captes in servitutem venderet. Idemque observatum est anno 1664.' Bynkershoek Quæst. Jur. Publ. [Lugduni Batavorum: Kerckhem, 1737], lib. 1, c. 3.
(k) 5 G. 2, c. 7, s. 4.
5. The slavery of negroes being [assumed] admitted to be lawful now in America, however questionable its first introduction there might be, it may be urged, that the lex loci ought to prevail, and that the master's property in the negro as a slave, having had a lawful commencement in America, cannot be justly varied by bringing him into England.
I shall answer this objection by explaining the limitation, under which the lex loci ought always to be received. It is a general rule(l) that the lex loci shall not prevail, if great inconveniences will ensue from giving effect to it.
Now I apprehend, that no instance can be mentioned, in which an application of the lex loci would be more inconvenient, than in the case of slavery.
It must be agreed, that where the lex loci cannot have effect without introducing the thing prohibited in a degree either as great, or nearly as great, as if there was no prohibition, there the greatest inconvenience would ensue from regarding the lex loc, and consequently it ought not to prevail. Indeed, by receiving it under such circumstances, the end [purpose] of a prohibition would be frustrated, either entirely or in a very great degree; and so the prohibition of things the most pernicious in their tendency would become vain and fruitless.
And what greater inconveniences can we imagine, than those, which would necessarily result from such an unlimited sacrifice [subordination] of the municipal [English anti-slavery] law to the [presumed pro-slavery] law of a foreign country?
I will now apply this general doctrine to the particular case of our own law concerning slavery. Our law prohibits the commencement of domestic slavery in England; because it disapproves of slavery and considers its operation as dangerous and destructive to the whole community.
But would not this prohibition be wholly ineffectual, if slavery could be introduced from a foreign country? In the course of time, though perhaps in a progress less rapid, would not domestic slavery become as general, and be as completelv revived in England by introduction from our colonies and from foreign countries, as if it was permitted to revive by commencement here; and would not the same inconveniences follow?
To prevent the revival of domestic slavery effectually, its introduction must be resisted universally, without regard to the place of its commencement; and therefore in the instance of slavery, the lex loci must yield to the municipal law.
From the fact of there never yet having been any slavery in this country except the old and now expired one of villeage, it is evident, that hitherto our [pro-freedom] law has uniformly controlled [had priority over] the [assumed pro-slavery] lex loci in this respect; and so long as the same policy of ex-
|(l) See the chapter 'de conflictu legum diversarum in diversis imperiis,' in Huber, Prælect, p. 538.|
Nor let it be thought a preculiar want of complaisance in the law of England, that disregarding the lex loci in the case of slaves, it gives immediate and entire liberty to them, when they are brought here from another country. Most of the other European states, in which slavery is discountenanced, have adopted a like policy.
In Scotland, domestic slavery is(m) unknown, except so far as regards the(n) coal-bearers and salt-makers, whose condition, it must be confessed, bears some resemblance to slavery, because all who have once acted in either of these capacities are compellable to serve, and fixed to their respective places of employment during life. But with this single exception, there is not the least vestige of slavery; and so jealous is the Scotch law of every thing tending to slavery, that it has been held to disallow contracts of service for life, or for a very long term; as, for sixty years(o).
However, no particular case has yet happened, in which it has been necessary to decide, whether a slave of another country acquires freedom on his arrival in that country. In 1757, this question was depending in the Court of Session in the case of a negro; but the negro happened to die during the pendency of the cause, the question was not(*) determined.
But when it is considered, that in the time of sir Thomas Craig [1538-1608], who wrote at least 150 years ago, slavery was even then a thing unheard of in Scotland, and that there are no laws(p) to regulate slavery, one can scarce doubt what opinion the lords of session would have pronounced, if the negro's death had not prevented a decision.
In the United Provinces slavery having fallen
|(m) See Craig Jus Feud. [London: Societatis Stationariorum, 1655], lib. 1, dieges. 11, s. 32. [James D.] Stair's Instit. [Edinburgh, 1682], b. 1, t. 2, s. 11, 12.
(n) Forb. Inst., part 1, b. 2, t. 3. Macdoual. Instit. vol. 1, p. 68.
(o) Macdoual. Instit. vol. 1, p. 68. But I must observe, that in the case relied on by Mr. Macdoual, the term of service was not the only material circumstance. The contract was between the masters and the crews of some fish boats; the latter binding themselves for a yearly allowance to serve in their respective boats during three times nineteen years, so that not one of them, during all that time, could remove from a particular village, or so much as from one boat to another. See Dict. Decis. tit. "Pactum illicitum."
* Wall. Institut. Law of Scotl. chap. on master and servant.
(p) Sir Thomas Craig, mentioning the English villenage, says, 'Nullus est apud nos ejus usus, et inauditum nomen, nisi quod nonnulla in libro Regiæ Majestatis de nativis et ad libertatem proclamantibus proponantur; quæ et ab Anglorum moribus sunt recepta, et nunquam in usum nostrum deducta,' Crag. Jus. Feud, lib. 1, dieges. 11, s. 32.
The same custom prevails in some of the neighbouring countries, particularly Brabant, and other parts of the Austrian Netherlands; and [Peter] Gudelinus, an eminent civilian [layman], who was formerly professor of law at Louvain in Brabant, relates fom the annals of the supreme council at Mechlin, that, in the year 1531, an application for apprehending and surrendering a fugitive slave from Spain was on this account rejected(s).
There are many remarkable instances in which this rule against the admission of slaves from foreign countries has had effect in France. Two are mentioned by(u) [Jean] Bodin [1530-1596]; one being the case of a foreign merchant who had purchased a slave in Spain, and afterwards carried him into France; the other being the case of a Spanish ambassador, whose slave was declared free, notwithstanding the high and independent character of the slave's owner. This latter case has been objected to by some writers(w) on the law of nations, who do not disapprove of the general principle on
(q) 'Belgæ servos non habent, nisi in Asiâ, Africâ et Americâ.' Bynkersh. Quæst. Jur. Pub. [Lugduni Batavorum: Kerckhem, 1737], lib. 1, c. 3. Another great Dutch lawyer adds, 'Nec cuiqam mortalium nunc liceat sese venundare, aut aliâ ratione servitutis jure semel alteri addicere.' [John] Voet [1647-1713], Commentar, ad Pandect [Hagæ-Comitum: Apud Abrahamum de Hondt, 1707], lib. 1, tit. 5, s. 3.
(r) 'Servitus paulatim ab usu recessit, ejusque nomen hodie apud nos exolevit; adeo quidem ut servi, qui aliunde hue adducuntur, simul ac imperii nostri fines intrârunt, invitis ipsorum dominis ad libertatem proclamare possint: id quod et aliarum Christianârum gentium moribus receptum est.' Grœnewegen de Leg. Abrogat. in Hollandiâ, &c. p. 5. John Voet, in the place cited in the preceding note, expresses himself to the same effect.
(s) Gudelin, de Jur. Noviss. lib. 1, c. 5, et Vinn. in Instit. lib. 1, tit. 3, p. 32, edit. Heinece.
(t) See Inst. au droit Franc, par M. Argou, ed. 1753, liv. 1, chap. 1, p. 4.
(u) Bodin, de Republic [Paris: Apud Iacobum Du-Puys, 1586], lib. 1, cap. 5, "de imperio herili." See several other instances mentioned in the Negro cause in the 13th volume of the Causes Célébres .
(w) Kirchuer, de Legat. lib. 2, c. 1, num. 233; and after him Bynkershoek, Juge Compet. des Ambassad. ed. par Barbeyr. c. 15, s 3.
But, on the other hand, [Abraham de] Wicquefort [1606-1682](x) [in L'Ambassadeur et Ses Fonctions (La Haye: J. & D. Steucker, 1680)] blames the states of Holland for not following the example of the French, in a case which he mentions.
After the establishment of the French colonies in South America, the kings of France thought fit to deviate from the strictness of the antient French law, in respect to slavery, and in them to permit and regulate the possession of negro slaves. The first edict for this purpose is said to have been one in April 1615 [by King Louis XIII], and another was made [by Louis XIV] in May 1685(x), which is not confined to negroes, but regulates the general policy of the French islands in America, and is known by the name of the Code Noir.
But notwithstanding these edicts, if negro slaves were carried from the French American islands into France, they were intitled to the benefit of the ancient French law, and became free on their arrival in France(z).
To prevent this consequence, a third edict was made in October 1716 [by King Louis XV], which permits the bringing of negro slaves into France from their American islands. The permission is granted under various restrictions; all tending to prevent the long continuance of negroes in France, to restrain their owners from treating them as property whilst they continue in their mother country, and to prevent the importation of fugitive negroes; and with a like view, a royal declaration was made in December 1738(a), containing an exposition of the edict of 1716, and some additional provisions.
But the antient law of France in favour of slaves from another country, still has effect, if the terms of the edict of 1716, and of the declaration of 1738 are not strictly complied with; or if the negro is brought from a place, to which they do not extend.
This appears from two cases adjudged since the edict of 1716. In one(b) of them, which happened in 1738, a negro had been brought from the island of St. Domingo without observing the terms of the edict of 1716; and in the other(c), which was decided so late as the year 1758, a slave had been brought from the East Indies, to which the
|(x) Wicq. Embassadur [London: Bernard Lintott, 1716], Engl. ed. p. 268.
(y) Decisions Nouvelles [Paris: Savoye, 1757], par M. [Jean B.] Denisart, tit. Negres.—Denisart mentions, that the edict of 1685 is registered with the sovereign council at Domingo, but has never been registered in any of the French parliaments.
(z) Nouvelles Decisions par M. Denisart, tit. Negres. s. 27.
(a) M. Denisart [1713-1765] observes, that the edict of 1716, and the declaration of 1738, do not appear to have been ever registered by the parliament of Paris, because they are considered as contrary to the common law of the kingdom.—See his Nouvelles Decisions. tit. Negres. And see above, p. 12.
(b) See Causes Célébres , vol. 13, p. 492.
(c) Nouvelles Decisions par M. Denisart, tit. Negres, s. 147.
Such are the examples drawn from the laws and usages of other European countries; and they fully evince, that wherever it is the policy to discountenance slavery, a disregard of the lex loci, in the case of slavery, is as well justified by general practice, as it is really founded on necessity. Nor is the justice of such proceeding less evident; for how can it be unjust to devest the master's property in his slave when he is carried into a country, in which for the wisest and most humane reasons, such property is known to be prohibited, and consequently cannot be lawfully introduced?
But insuperable difficulties occur against modifying and qualifying the slavery by this artificial refinement. In the present case, in all events, such a modification cannot be allowable; because, in the return, the master claimed the benefit of the relation between him and the negro in the full extent of the original slavery. But for the sake of shewing the futility of the argument of modification, and in order to prevent a future attempt by the masters of negroes to avail themselves of it, I will try its force.
As to the presuming a contract of service against the negro, I ask at what time is its commencement to be supposed? If the time was before the negro's arrival in England, was made when he was in a state of slavery, and consequently without the capacity of contracting. If the time presumed is a time subsequent, the presumption must be after the time of the negro's arrival here, and consequently be founded on the mere fact of that arrival, and the consequential enfranchisement by operation of law.
But is not a slavery made against the consent of the master a strange foundation for presuming a contract between him and the slave?
For a moment, however, I will allow the reasonableness of presuming such a contract, or I will suppose it to be reduced into writing; but then I ask, what are the terms of this contract? To answer the master's purpose, it must be a contract to serve the master here; and when he leaves the country to return with him into America where the slavery will again attach upon the negro. In plain terms, it is a contract to go into slavery whenever the master's occasion shall require.
Will the law of England disallow the introduction of slavery, and therefore emancipate the negro from it; and yet give effect to a contract founded solely upon slavery, in slavery ending [the post-villenage era]? Is it possible, that the
The argument of modification, independently of contract, is equally delusive.—There is no known rule by which the Court can guide itself in a partial reception of slavery. Besides, if the law of England would receive the slavery of the negro in any way, there can be no reason why it should not be admitted in the same degree as the slavery of the villein; but the argument of modification necessarily supposes the contrary; because, if the slavery of the negro was received in the same extent, then it would not be necessary to have recourse to a qualification.
There is also one other reason still more repugnant to the idea of modifying the slavery. If the law of England would modify the slavery, it would certainly take away its most exceptionable qualities, and leave those which are least oppressive. But the modification required will be insufficient for the master's purpose, unless the law leaves behind a quality the most exceptionable, odious, and oppressive; an arbitrary power of reviving the slavery in its full extent, by removal of the negro to a place, in which the slavery will again attach upon him with all its original severity(d).
From this examination of the several objections in favor of slavery in England, I think myself well warranted to observe, that instead of being weakened, the arguments against slavery in England have derived an additional force.
The result is, not merely that negroes become free on being brought into this country, but that the law of England confers the gift of liberty entire and unencumbered; not in name only, but really and substantially; and consequently that Mr. Stewart cannot have the least right over Sommerset the negro, either in the open character of a slave, or in the disguised one of an ordinary servant.
(2.) In the outset of the argument, I made a second question on Mr. Stewart's authority to enforce his right, if he has any, by transporting the negro out of England. Few words will be necessary on the point, which my duty as
|(d) This answer to the argument of modification, includes an answer to the supposition, that an action of trespass 'per quod servitium amisit,' will lie for loss of a negro's service. I am persuaded, that the case, in which that remedy was loosely suggested, was one in which the question was about a negro being out of England. I mean the case of Smith and Gould, 2 Salk. 667. Another writ, hinted at in the same case, is the writ of trespass, 'quare captivum suum cepit,' which is not in the least applicable to the negro, or any other slave. It supposes the plaintiff to have had one of the king's enemies in his custody as a prisoner of war, and to have had a right of detaining him until payment of a ransom. See Reg. Br. 102, b, and 2 Salk. 667.|
If in England the negro continues a slave to Mr. Stewart, he must be content to have the negro subject to those limitations which the laws of villenage imposed on the lord in the enjoyment of his property in the villein; there being no other laws to regulate slavery in this country.
But even those laws did not permit that high act of dominion which Mr. Stewart has exercised; for they restrained the lord from forcing the villein out of England. The law, by which the lord's power over his villein was thus limited, has reached the present times. It is a law(e) made in the time of the first William, and the words of it are, 'prohibemus ut nullus vendat hominem extra patriam'(f).
If Mr. Stewart had claimed the negro as a servant by contract, and in his return [reply] to the Habeas Corpus had stated a written agreement to leave England as Mr. Stewart should require, signed by the negro, and made after his arrival in England, when he had a capacity of contracting, it might then have been a question, whether such a contract in writing would have warranted Mr. Stewart in compelling the performance of it, by forcibly transporting the negro out of this country?
I am myself satisfied, that no contract, however solemnly entered into, would have justified such violence. It is contrary to the genius of the English law, to allow any enforcement of agreements or contracts, by any other compulsion, than that from our courts of justice. The exercise of such a power is not lawful in cases of agreements for property; much less ought it to be so for enforcing agreements against the person.
Besides, is it reasonable to suppose, that the law of England would permit that against the servant by contract, which is denied against the slave?
Nor are great authorities wanting to acquit the law of England of such an inconsistency, and to shew, that a contract will not warrant a compulsion by imprisonment, and consequently much less by transporting the party out of this kingdom. Lord Hobart, whose extraordinary learning, judgment, and abilities, have always ranked his opinion amongst the highest authorities of law, expressly says(g), that the body of a freeman cannot be made subject to distress or imprisonment by contract, but only by judgment.
There is, however, one case, in which it is said that the performance of a service to be done abroad, may be compelled without the
|(e) Wilk. Leg. Saxon, p. 229, chap. 65, Leg. Gulielm. 1.
(f) This law furnishes one more argument against slavery imported from a foreign country. If the law of England did not disallow the admission of such a slavery, would it restrain the master from taking his slave out of the kingdom?
(g) Hob. 61.
The Habeas Corpus Act(i) goes a step further; and persons who, by contract in writing, agree with a merchant or owner of a plantation, or any other person, to be transported beyond sea, and receive earnest [payment] on such agreements, are excepted from the benefit of that statute. I must say, that the exception appears very unguarded; and if the law as it was previous to this statute, did entitle the subject to the Habeas Corpus in the case which the statute excepts, it can only operate in excluding him in that particular case from the additional provisions of the statute, and cannot, I presume, be justly extended to deprive him of the Habeas Corpus, as the common law gave it before the making of the statute.
Upon the whole, the return to the Habeas Corpus in the present case, in whatever way it is considered, whether by inquiry into the foundation of Mr. Stewart's right to the person and service of the negro, or by reference to the violent manner in which it has been attempted to enforce that right, will appear equally unworthy of this court's approbation. By condemning the return, the revival of domestic slavery will be rendered as impracticable by introduction from our colonies and from other countries, as it is by commencement here. Such a judgment will be no less conducive to the public advantage, than it will be conformable to natural justice, and to principles and authorities of law; and this court, by effectively obstructing the admission of the new slavery of negroes into England, will in these times reflect as much honour on themselves, as the great judges, their predecessors, formerly acquired, by contributing so uniformly and successfully to the suppression of the old slavery of villenage.
Mr. Alleyne.—Though it may seem presumption in me to offer any remarks, after the elaborate discourse just now delivered, yet I hope the indulgence of the Court; and shall confine my observations to some few points, not included by Mr. Hargrave.
It is well known to your lordships, that much has heen asserted by the ancient [heathen] philosophers and civilians [laymen], in defence of the principles of slavery: Aristotle has particularly enlarged on that subject.
|Ed. Note: Some ancient heathens were pro-slavery. To reject such heathen view and laws, the laws of the Judeo-Christian religion expressly rejected, banned, and punished enslaving.
See references including but not limited to those by Rev. John Rankin (1823), Rev. Theodore Weld (1837), Rev. Beriah Green (1839), Rev. John G. Fee (1851), and Rev. George B. Cheever (1857).
Deuteronomy 4:6-8 says this pro-freedom approach would contrast with the laws around, show the Divine Law System to be “righteous.”
An observation still it is, of one of the most able, most ingenious, most convincing writers of modern times, whom I need not hesitate, on this occasion, to prefer to Aristotle, the great [Baron Charles de] Montesquieu [1689-1755], that Aristotle, on this subject, reasoned very unlike the philosopher. He draws his precedents from barbarous ages
|(h) Hob. 134.
(i) 31 Cha. 2, c. 2, § 13.
As a contract: in all contracts there must be power on one side to give, on the other to receive; and competent consideration. Now, what power can there be in any man to dispose of all his rights vested by nature and society in him and his descendants? He cannot consent to part with them, without ceasing to be a man; for they immediately flow from, and are essential to, his condition as such: they cannot be taken from him, for they are not his, as a citizen, a member of society merely; and are not to be resigned to a power inferior to that which gave them.
With respect to consideration, what shall be adequate? As a speculative point, slavery may a little differ in its appearance, and the relation of master and slave, with the obligations on the part of the slave, may be conceived; and merely in this view, might be thought to take effect in all places alike; as natural relations always do.
But slavery is not a natural, it is a municipal relation; an institution therefore confined to certain places, and necessarily dropt by passage into a country where such municipal regulations do not subsist. The negro making choice of his habitation here, has subjected himself to the penalties, and is therefore entitled to the protection of our laws. One remarkable case seems to require being mentioned: some Spanish criminals having escaped from execution, were set free in France.
|[Lord Mansfield.—Note the distinction in the case: in this case, [Lofft 7]France was not bound to judge by the municipal laws of Spain; nor was to take cognizance of the offences supposed against that law.]|
There has heen started as objection, that a company having been established by our government for the trade of slaves, it were unjust to deprive them here.—No: the government incorporated [98 ER 503]them with such powers as individuals had used by custom, the only title on which that trade subsisted; I conceive, that had never extended, nor could extend, to slaves brought hither; it was not enlarged at all by the incorporation of that company, as to the nature or limits of its authority.
It is said, let slaves know they are all free as soon as arrived here, they will flock over in vast numbers, over-run this country, and desolate the plantations. There are too strong penalties by which they will be kept in; nor are the persons who might convey them over much induced to attempt it; the despicable
The horrid cruelties, scarce credible in recital, perpetrated in America, might, by the allowance of slaves amongst us, be introduced here. Could your Lordship, could any liberal and ingenuous temper indure, in the fields bordering on this city, to see a wretch bound for some trivial offence to a tree, torn and agonizing beneath the scourge?
Such objects might by time become familiar, become unheeded by this nation; exercised, as they are now, to far different sentiments, may those sentiments never be extinct! the feelings of humanity! the generous sallies of free minds! May such principles never be corrupted by the mixture of slavish customs! Nor can I believe, we shall suffer any individual living here to want that liberty, whose effects are glory and happiness to the public and every individual.
Mr. Wallace.—The question has been stated, whether the right can be supported here; or, if it can, whether a course of proceedings at law be not necessary to give effect to the right? It is found in three quarters of the globe, and in part of the fourth. In Asia the whole peopIe; in Africa and America far the greater part; in Europe great numbers of the Russians and Polanders.
As to captivity in war, the Christian princes have been used to give life to the prisoners; and it took rise probably in the Crusades, when they gave them life, and sometimes franchised them, to enlist under the standard of the Cross, against the Mahometans. The right of a conqueror was absolute in Europe, and is in Africa.
The natives are brought from Africa to the West Indies; purchase is made there, not because of positive law, but there being no law against it. It cannot be in consideration by this or any other Court, to see, whether the [Lofft 8] West India regulations are the best possible; such as they are, while they continue in force as laws, they must be adhered to.
As to England, not permitting slavery, there is no law against it; nor do I find any attempt has been made to prove the existence of one. Villenage itself has all but the name.
Though the dissolution of monasteries, amongst other material alterations, did occasion the decay of that tenure, slaves could breathe in England: for villeins were in this country, and were mere slaves, in Elizabeth. Sbeppard's Abridgment, afterwards, says they were worn out in his time.
|[Lord Mansfield mentions an assertion, but does not recollect the author, that two only were in England in the time of Charles the 2d, at the time of the abolition of tenures.]|
In the cases cited, the two first directly affirm an action of trover, an action appropriated to mere common chattels. Lord Holt's opinion, is a mere dictum, a decision
With respect to the other cases, the particular mode of action was alone objected to; had it been an action per quod servitium amisit, for loss of service, the Court would have allowed it. The Court called the person, for the recovery of whom it was brought, a slavish servant, in Chamberlayne's case.
Lord Hardwicke, and the afterwards Lord Chief Justice Talbot, then Attorney and Solicitor-General, pronounced a slave not free by coming into England. It is necessary the masters should bring them over; for they cannot trust the whites, either with the atores or the navigating the vessel. Therefore, the benefit taken on the Habeas Corpus Act ought to be allowed.
|[Lord Mansfield observes, the case alluded to was upon a petition in Lincoln's Inn Hall after dinner; probably, therefore, might not, as he believes the contrary is not usual at that hour, be taken with much accuracy.]|
The principal matter was then, on the eanest solicitation of many merchants, to know, whether a slave was freed by being made a Christian. And it was resolved, not. It is remarkable, though the English took [98 ER 504]infinite pains before to prevent their slaves being made Christians, that they might not be freed, the French suggested they must bring their's into France, (when the edict of 1706 was petitioned for,) to make them Christians. He said, the distinction was difficult as to slavery, which could not be resumed after emancipation, and yet the condition of slavery, in its full extent, could not be tolerated here. Much consideration was necessary, to define how far the point should be carried. The Court must consider the great detriment to proprietors, there being so great a number in the ports of this kingdom, that many thousands of pounds would be lost to the owners, by setting them free.
(A gentleman observed, no great danger; for in a whole fleet, usually, there would not be six slaves.)
As to France, the case stated decides no [Lofft 9]farther than that kingdom; and there freedom was claimed, because the slave had not been registered in the port where he entered, conformably to the edict of 1706. Might not a slave as well be freed by going out of Virginia to the adjacent country, where there are no slaves, if change to a place of contrary custom was sufficient [to end slavery]?
A statute by the Legislature, to subject the West India property to payment of debts, I hope, will be thought some proof; another Act devests the African Company of their slaves, and vests them in the West India Company: I say, I hope, these are proofs the law has interfered for the maintenance of the trade in slaves, and the transferring of slavery.
As for want of application properly to a Court of Justice; a common servant may be corrected
The Court approved Mr. Alleyne's opinion of the distinction, how far municipal laws were to be regarded: instanced the right of marriage; which, properly solemnized, was in all places the same, but the regulations of power over children from it, and other circumstances, very various; and advised, if the merchants thought it so necessary, to apply to parliament, who could make laws.
Adjourned till that day se'nnight.
Mr. Dunning.—It is incumbent on me to justify captain Knowles's detainer of the negro; this will be effected, by proving a right in Mr. Stewart; even a supposed one: for till that matter was determined, it were somewhat unaccountable that a negro should depart his [slaver Stewart's] service, and put the means out of his power of trying that right to effect, by a flight out of the kingdom [England].
I will explain what appears to me the foundation of Mr. Stewart's claim. Before the writ of Habeas Corpus issued in the present case, there was, and there still is, a great number of slaves in Africa, (from whence the American plantations are supplied) who are saleable, and in fact sold.
Under all these descriptions is James Sommersett. Mr. Stewart brought him over to England; purposing to return to Jamaica, the negro chose to depart the service, and was stopt and detained by captain Knowles, until his master should set sail and take him away to be sold in Jamaica.
The gentlemen on the other side, to whom I impute no blame, but on the other hand much commendation, have advanced many ingenious propositions; part of which are undeniably true, and part (as is usual in composititions of ingenuity) very disputable.
It is my misfortune [Lofft 10] to address an audience, the greater part of which, I fear, are prejudiced the other way. But wishes, I am well convinced, will never into your lordships' minds, to influence the determination of the point: this cause must be what in fact and law it is; its fate, I trust, therefore, depends on fixt invariable rules, resulting by law from the nature of the case.
For myself, I would not be understood to intimate a wish in favour of slavery, by any means; nor on the other side to be supposed the maintainer of an opinion contrary to my own judgment. I am bound by duty to maintain those arguments which are most useful to captain Knowles, as far as is consistent with truth; and if his conduct has been agreeable to the laws throughout, 1 am under a further indispensible duty to support it. I ask no other attention than may naturally result from the importance of the
Many alarming apprehensions have been entertained of the consequences of the decision, either way.
About 14,000 slaves, from the most exact intelligence I am able to procure, are at present here; and some little time past [98 ER 505]166,914 in Jamaica; there are, besides, a number of wild negroes in the woods. The computed value of a negro in those parts 50£ a head. In the other islands I cannot state with the same accuracy, but on the whole they are about as many.
The means of conveyance, I am told, are manifold, every family almost brings over a great number, and will, be the decision on which side it may.
|Ed. Note: This statement confesses slaver intent to defy the decision and the law.|
Most negroes who have money (and that description I believe will include nearly all) make interest with the common sailors to be carried hitherto [Ed. Note: meaning, seeking to escape].
There are negroes not falling under the proper denomination of any yet mentioned, descendants of the original slaves, the aborigines, if I may call them so, these have gradually acquired a natural attachment to their country and situation; in all insurrections they side with their masters; otherwise, the vast disproportion of the negroes to the whites, (not less probably than that of 100 to one) would have been fatal in its consequences
There are very strong and particular grounds of apprehension, if the relation in which they stand to their masters is utterly to be dissolved on the instant of their coming into England.
Slavery, say the gentlemen, is an odious thing, the name is: and the reality; if it were as one has defined, and the rest supposed it. If it were necessary to the idea and the existence of James Sommersett, that his master, even here, might kill, nay, might eat him, might sell living or dead, might make him and his descendents property alienable, and thus transmissible to posterity; this, how high soever my ideas may be of the duty of my profession, is what I should decline pretty much to defend or assert, for any purpose, seriously; I should only speak of it to testify my contempt and abhorrence.
But this is what at present I am not at all concerned in; unless captain Know1es or Mr. Stewart, have killed or eat him.
Freedom has been asserted as a natural right, and therefore unalienable and unrestrainable; there is perhaps no branch of this right, but in some [Lofft 11] at all times, and all places at different times, has been restrained: nor could society otherwise be conceived to exist. For the great benefit of the public and individuals, natural liberty, which consists in doing what one likes, is altered to the doing what one ought.
The gentlemen who have spoke with so much zeal have supposed different ways by which slavery commences; but have omitted one, and rightly, for it would have given a more favourable idea of the nature of that power against which they combat. We are apt (and great authorities support this way of speaking) to call those nations universally, whose internal policies we are ignorant of, barbarians; (thus the Greeks, par-
There are slaves in Africa by captivity in war, but the number far from great, the country is divided into many small, some great territories, who do, in their wars with one another, use this custom.
There are of these people, men who have a sense of the right and value of freedom, but who imagine that offences against society are punishable justly by the severe law of servitude. For crimes against property, a considerable addition is made to the number of slaves. They have a process by which the quantity of the debt is ascertained, and if all the property of the debtor in goods and chattels is insufficient, he who has thus dissipated all he has besides, is deemed property himself; the proper officer (sheriff we may call him) seizes the insolvent, and disposes of him as a slave.
We don't contend under which of these the unfortunate man in question is, but his condition was that of servitude in Africa; the law of the land of that country disposed of him as property, with all the consequences of transmission and alienation; the statutes of the British Legislature confirm this condition, and thus he was a slave both in law and fact.
I do not aim at proving these points; not because they want evidence, but because they have not been controverted, to my recollection, and are, I think, incapable of denial.
Mr. Stewart, with this right, crossed the Atlantic, and was not to have the satisfaction of discovering, till after his arrival in this country, that all relation between him and the negro, as master and servant, was to be matter of controversy, and of long legal disquisition.
A few words may be proper concerning the Russian slave, and the proceedings of the House of Commons on that case. It is not absurd in the idea, as quoted, nor improbable as matter of fact; the expression has a kind of absurdity. I think, without any prejudice to Mr. Stewart, or the merits of this cause, I may admit the utmost possible to be desired, as far as the case of that slave goes. The master and slave were both, (or should have been at least) on their coming here, new [98 ER 506]creatures. Russian slavery, and even the subordination amongst themselves, in the degree they use it, is not here to be tolerated.
Mr. Alleyne justly observes, the municipal [Lofft 12] regulations of one country are not binding on another; but does the relation cease where the modes of creating it, the degrees in which it subsists, vary? I have not heard, nor, I fancy, is there any intention to affirm, the relation of master and servant ceases here? I understand the municipal relations differ in different colonies, according to humanity, and otherwise. A distinction was endeavored to be established between natural and municipal relations; but the natural relations are not those only which attend the person of the man, political do so too; with which the municipal
In fact, the municipal laws are principalIy employed in determining the manner by which relations are created; and which manner varies in various countries, and in the same country at different periods; the political relation itself continuing usually unchanged by the change of place. There is but one form at present with us, by which the relation of husband and wife can be constituted; there was a time when otherwise: I need not say other nations have their own modes, for that and other ends of society.
Contract is not the only means, on the other hand, of producing the relation of master and servant; the magistrates are empowered to oblige persons under certain circumstances to serve.
Let me take notice, neither the air of England is too pure for a slave to breathe in, nor the laws of England have rejected servitude. Villenage in this country is said to be worn out; the propriety of the expression strikes me a little. Are the laws not existing by which it was created? A matter of more curiosity than use, it is, to enquire when that set of people ceased. The Statute of Tenures did not however abolish villenage in gross; it left persons of that condition in the same state as before; if their descendants are all dead, the gentlemen are right to say the subject of those laws is gone, but not the law; if the subject revives, the law will lead the subject. If the Statute of Charles the 2d ever be repealed, the law of villenage revives in its full force.
If my learned brother, the serjeant, or the other gentlemen who argued on the supposed subject of freedom, will go through operation my reading assures me will be sufficient for that purpose, I shall claim them as property. I won't, I assure them, make a rigorous use of my power; I will neither sell them, eat them, nor part with them.
It would be a great surprize, and some inconvenience, if a foreigner bringing over a servant, as soon as he got hither, must take care of his carriage, his horse, and himself, in whatever method he might have the luck to [Lofft 13] invent. He must find his way to London on foot. He tells his servant, Do this; the servant replies,
Before I do it, I think fit to inform you, sir, the first step on this happy land sets all men on a perfect level; you are just as much obliged to obey my commands.Thus neither superior, or inferior, both go without their dinner.
We should find singular comfort, on entering the limits of a foreign country, to be thus at once devested of all attendance and all accommoda-
In Holland, so far from perfect freedom, (I speak from knowledge) there are, who without being conscious of contract, have for offences perpetual labour imposed, and death the condition annexed to non-performance. Either all the different ranks must be allowed natural, which is not readily conceived, or there are political ones, which cease not on change of soil.
But in what manner is the negro to be treated? How far lawful to detain him? My footman, according to my agreement, is obliged to attend me from this city; or he is not; if no condition, that he shall not be obliged to attend, from hence he is obliged, and no injury done.
A servant of a sheriff, by the command of his master, laid hand gently on another servant of his master, and brought him before his master, who himself compelled the servant to his duty; an action of assault and battery, and false imprisonment, was brought; and the principal question was, on demurrer, whether the master could [98 ER 507]command the servant, though he might have justified his taking of the servant by his own hands? The convenience of the public is far better provided for, by this private authority of the master, than if the lawfulness of the command were liable to be litigated every time a servant thought fit to be negligent or troublesome.
Is there a doubt, but a negro might interpose in the defence of a master, or a master in defence of a negro? If to all purposes of advantage, mutuality requires the rule to extend to those of disadvantage. It is said, as not formed by contract, f no restraint can be placed by contract. Which ever way it was formed, the consequences, good or ill, follow from the relation, not the manner of producing it.
I may observe, there is an establishment, by which magistrates compel idle or dissolute of persons, of varies ranks and denominations, to serve. In the case of apprentices bound out by the parish, neither the trade is left to the choice of those who are to serve, nor the consent of parties necessary; no contract therefore is made in the former instance, none in the latter; the duty remains the same.
The case of contract for life quoted from the Year-Books, was recognized as valid; the solemnity only of an instru-[Lofft 14]-ment judged requisite.
Your Lordships, (this variety of service, with diverse other sorts, existing by law here,) have the option of classing him amongst those servants which he most resembles in condition: therefore, (it seems to me) are by law authorised to enforce a service for life in the slave, that being a part of his situation before his coming hither; which, as not incompatible, but agreeing with our laws, may justly subsist here: I think, I might say, must necessarily subsist,
Much has been endeavoured, to raise a distinction, as to the lawfulness of the negro's commencing slave, from the difficulty or impossibility of discovery by what means, under what authority, he became such. To this, I apprehend, if a curious search were made, not utterly inexplicable; nor the legality of bis original servitude difficult to be proved. But to what end? Our Legislature, where it finds a relation existing, supports it in all suitable consequences, without using to enquire how it commenced.
A man enlists for no specified time; the contract in construction of law, is for a year: the Legislature, when once the man is enlisted, interposes annually to continue him in the service, as long as the public has need of him. In times of public danger he is forced into the service; the laws from thence forward find him a soldier, make him liable to all the burthen, confer all the rights (if any rights there are of that state) and enforce all penalties of neglect of any duty in that profession, as much and as absolutely, as if by contract he had so disposed of himself.
If the Court see a necessity of entering into the large field of argument, as to right of the unfortunate man, and service appears to them deducible from a discussion of that nature to him, I neither doubt they will, nor wish they should not.
As to the purpose of Mr. Stewart and Captain Knowles, my argument does not require trover should lie, as for recovering of property, nor trespass: a form of action there is, the writ per quod servitium amisit, for loss of service, which the Court would have recognized; if they allowed the means of suing a right, they allowed the right.
The opinion cited, to prove the negroes free on coming hither, only declares them not saleable; does not take away their service.
I would say, before I conclude, not for the sake of the Court, of the audience; the matter now in question, interests the zeal for freedom of no person, if truly considered; it being only, whether I must appIy to a Court of Justice, (in a case, where if the servant was an Englishman I might use my private authority to enforce the performance of the service, according to its nature,) or may, without force or outrage, take my servant myself, or by another. I hope, therefore, I shall not suffer in the opinion of those whose honest passions are fired at the name of slavery.
I hope I have not transgressed my duty to humanity; nor doubt I your Lordships discharge of yours to justice.
[Lofft 15]Serjeant Davy.—My learned friend has thought proper to consider the question in the beginning of his speech, as of great importance: it is indeed so; but not for those reasons principally assigned by him. I apprehend, my Lord, the honour of England, the honour of
Money from foreign trade (or any other means) is not the wealth of a nation; nor conduces any thing to support it, any farther than the produce of the earth will answer the demand of necessaries. In that case money enriches the inhabitants, as being the common representative of those necessaries; but this representation ia merely imaginary and useless, if the encrease of people exceeds the annual stock of provisions requisite for their subsistence. Thus, foreign superfluous inhabitants augmenting perpetually, are ill to be allowed; a nation of enemies in the heart of a State, still worse.
Mr. Dunning availed himself of a wrong interpretation of the word "natural": it was not used in the sense in which he thought fit to understand that expression; it was used as moral, which no laws can supercede. All contracts, I do not venture to assert, are of a moral nature; but I know not any law to confirm an immoral contract, and execute it.
The contract of marriage is a moral contract, established for moral purposes, enforcing moral obligations; the right of taking property by descent, the legitimacy of children; (who in France are considered legitimate, though born before the marriage, in England not:) these, and many other consequences, flow from the marriage properly solemnized; are governed by the municipal laws of that particular State, under whose institutions the contracting and disposing parties live as subjects; and by whose established forms they submit the relation to be regulated, so far as its consequences, not concerning the moral obligation, are interested.
In the case of Thorn and Watkins, in which your Lordship was counsel, determined before Lord Hardwicke, a man died in England, with effects in Scotland; having a brother of the whole, and a sister of the half blood: the latter, by the laws of Scotland could not take. The brother applies for administration to take the whole estate, real and personal, into his own bands, for his own use; the sister files a bill in Chancery. The then Mr. Attorney-General puts in answer for the defendant; and affirms, the estate, as being in Scotland, and descending from a Scotchman, should be governed by that law. Lord Hardwicke over-ruled the objection against the sister's taking; declared there was no pretence for it; and spoke thus, to this effect, and nearly in the following [Lofft 16]words—
"Suppose a foreigner has effects in our stocks, and dies abroad; they must be distributed according to the laws, not of the place where his effects were, but of that to
which as a subject he belonged at the time of his death."
All relations governed by municipal laws, must be so far dependent on them, that if the parties change their country the municipal laws give way, if contradictory to the political regulations of that other country.
In the case of master and slave, being no moral obligation, but founded on principles, and supported by practice, utterly foreign to the laws and customs of this country, the law cannot recognize such relation. The arguments founded on municipal regulations, considered in their proper nature, have been treated so fully, so learnedly, and ably, as scarce to leave any room for observations on that subject: any thing I could offer to enforce, would rather appear to weaken the proposition, compared with the strength and propriety with which that subject has already been explained and urged.
I am not concerned to dispute, the negro may contract to serve; nor deny the relation between them, while he continues under his original proprietor's roof and protection.
It is remarkable, in all Dyer, for I have caused a search to be made as far as the 4th of Henry 8th , there is not one instance of a man's being held a villein who denied himself to be one; nor can I find a confession of villenage in those times.
If the Court would acknowledge the relation of master and servant, it certainly would not allow the most exceptionable part of slavery; that of being obliged to remove, at the will of the master, from the protection of this land of liberty, to a country where there are no laws; or hard laws to insult him. It will not permit slavery suspended for a while, suspended during the pleasure of the master.
The instance of master and servant commencing without contract; and that of apprentices against the will of the parties, (the latter found in its consequences exceedingly pernicious;) both these are provided by special statutes of our own municipal law. If made in France, or any where but here, they would not have been binding here. To punish not even a criminal for offences against the laws of another country; to set free a galley-slave, who is a slave by his crime; and make a slave of a negro, who is one, by his complexion; is a cruelty and absurdity that I trust will never take place here: such as [98 ER 509]if promulged, would make England a disgrace to all the nations under earth: for the reducing a man, guiltless of any offence against the laws, to the condition of slavery, the worst and most abject state, Mr. Dunning has mentioned, what he is pleased to term philosophical and moral grounds, I think, or something to that effect, of slavery; and would not by any means have us think disrespectfully of those nations, whom we mistakenly call barbarians, merely for carrying on that trade: for my part, we may be warranted, I believe, in affirming [that] the [lack of] morality or propriety of the practice does not
But if the parties will have [insist on having] it [the case] decided [in court], we must give our opinion [decision]. Compassion will not, on the one hand, nor inconvenience on the other, be to decide; but the law: in which the difficulty will be principally from the inconvenience on both sides. Contract for sale of a slave is good here; the sale is a matter to which the law properly and readily attaches, and will maintain the price according to the agreement.
But here the person of the slave himself is immediately the object of enquiry; which makes a very material difference. The now question is, Whether any dominion, authority or coercion can be exercised in this country, on a slave according to the [alleged] American laws? The difficulty of adopting the relation, without adopting it in all its consequences, is indeed extreme; and yet, many of those consequences are absolutely contrary to the municipal law of England.
We [judges] have no authority to regulate the conditions in which law shall operate. On the other hand, should we think the coercive power cannot be exercised: it is now about 50 years since the opinion given by two of the greatest men of their own or any times, (since which no contract has been brought to trial, between the masters and slaves;) the service performed by the slaves without wages, is a clear indication they did not think themselves free by coming hither.
The setting 14,000 or 15,000 men at once loose by a solemn opinion [due to the "class action" aspect], is very disagreeable in the effects it threatens [no, should be welcomed as a pro-freedom measure].
There is a case in Hobart, (Coventry and Woodfall,) where a man had contracted to go as a mariner: but the now case will not come within that decision.
Mr. Stewart advances no claims on contract; he rests his whole demand on a right to the negro as slave, and mentions the purpose of detainure to be the sending of him over to be sold in Jamaica.
If the parties will have judgment, 'fiat justitia, ruat cœlum;' let justice be done whatever the consequence.
50£ a head may not be a high price; then a loss follows to the [14 - 15,000] proprietors of above
We cannot in any of these points direct the law; the law must rule us. In these particulars, it may be matter of weighty consideration, what provisions are made or set by law.
Mr. Stewart may end the question, by discharging or giving freedom to the slave.
I did think at first to put the matter to a more solemn way of argument: but if my brothers agree, there seems no occasion. I do not imagine, after the point has been discussed on both sides so extremely well, any new light could be thrown on the subject. If the parties chuse to refer it [the case] to the Common Pleas [court], they can give them that satisfaction whenever they think fit.
An application to Parliament, if the merchants think the question of great commercial concern, is the best, and perhaps the only method of settling the point for the future.
The Court is greatly obliged to the gentlemen of the Bar who have spoke on the subject; and by whose care and abilities so much has been effected, that the rule of decision will be reduced to a very easy compass. I can not omit to express particular happiness in seeing young men, just called to the Bar, have been able so much to profit by their reading.
I think it right the matter should stand over [be postponed]; and if we are called on for a decision, proper notice shall be given.
[98 ER 510]Trinity Term, [Monday], June 22, 1772.
I shall recite [summarize] the return [the defense, e.g., the affidavit] to the writ of Habeas Corpus, as the ground of determination; omitting only words of form.
The captain of the ship on board of which the negro was taken, makes his return to the writ in terms signifying that there have been, and still are, slaves to a great number in Africa, and that the trade in them is authorized by the laws and opinions of Virginia and Jamaica; that they are goods and chattels; and, as such, saleable and sold.
That James Sommerset, is a negro of Africa, and long before the return of the king's writ was brought to be sold, and was sold to Charles Stewart, Esq. then in Jamaica, and has not been manumitted since; that Mr. Stewart, having occasion to transact business, came over hither, with an intention to return; and brought Sommerset, to attend and abide with him, and to carry him back as soon as the business should be transacted.
That such intention has been, and still continues; and that the negro did remain till the time of his departure, in the service of his master Mr. Stewart, and quitted it without his consent; and thereupon, before the return of the king's writ, the said Charles Stewart did commit the slave on board the "Ann and Mary," to save custody, to be kept till he should set sail, and then to be taken with him to Jamaica, and there sold as a slave.
And this is the cause why he, captain Knowles,
We pay all due attention to the opinion of sir Philip Yorke, and lord chancellor Talbot whereby they pledged themselves to the British planters, for all the legal consequences of slaves coming over to this kingdom or being baptized, recognized by lord Hardwicke, sitting as chancellor on the 19th of October 1749, that trover would lie: that a notion had prevailed, if a negro came over, or became a Christian, he was emancipated, but no ground in law; that he and Lord Talbot, when Attorney and Solicitor-General, were of opinion, that no such claim for freedom was valid; that though the Statute of Tenures had abolished "villeins regardant to a manor," yet he did not conceive but that a man might still become a "villein in gross," by confessing himself such in open Court.
We are so well agreed, that we think there is no occasion of having it argued (as I intimated an intention at first,)
Accordingly, the return states, that the slave departed [fled] and refused to serve; whereupon he was kept [detained without due process], to be sold abroad.
The power of a master over his slave has been exceedingly different, in different countries.
The state of slavery is of such a nature, that it is incapable of being [legally] introduced [established] on [for] any reasons, moral or political, but only by positive [written] law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory.
Whatever inconveniences, therefore, may follow from the decision, I cannot say this case [for slavery] is allowed or approved by the law of England; and therefore the black [slave James Somersett] must be discharged [freed from slavery].
|Ed. Note: This case is also reprinted by
The case and background are discussed by
|Ed. Note: Somerset was to be followed in America "because the precedent had become part of American common law."—William M. Wiecek, "Somerset's Case," Encyclopedia of the American Constitution, Leonard W. Levy and Kenneth L. Karst, eds. (New York: Macmillan Reference USA, 2000), Vol 5, pp 2451-2452. [Details].|
Ed. Note: Somerset is the precedent that the U.S. Supreme Court should have followed in the Dred Scott case.
Unfortunately, the U.S. Supreme Court is the world's worst court, often disregarding legal principles and precedents.—Joel Tiffany, Unconstitutionality of Slavery (1849), p 49.
Abraham Lincoln was opposed by the South because he would appoint judges who WOULD follow precedents.
|FOR FURTHER READING
||Overview of the Unconstitutionality of Slavery
Slavers' 1837-1839 Testimony of Slavery Conditions
Gerrit Smith's 1839 Letter
P 19 cites this case.
Geo. W. F. Mellen's 1841 Unconstitutionality of
Slavery P. 431 cites this case.
L. Spooner's 1845 Unconstitutionality of Slavery
Discusses this case at pp. 23-24, 26, 31, 32, and 287.
Alvan Stewart's 1845 Anti-Slavery Litigation Speech
Discusses this case at pp. 16-17 and 28.
Benj. Shaw's 1846 Unconstitutionality of Slavery
Discusses this case at p. 2.
J. Tiffany's 1849 Unconstitutionality of Slavery
Pp. 59-60 discuss this case.
Wm. Goodells' 1852 Slavery and Anti-Slavery
Cites this case at pp. 18, 49-51, 112, 265, and 572.
A. Lincoln's 16 Oct 1854 Peoria Speech
cites the "book-law" concept at p 221.
Edward C. Rogers' 1855 Slavery
Illegality in All Ages and Nations
Alludes to this case at p 37
and has background for the seemingly
pro-slavery precedents, e.g., at pp 39 and 49.
F. Douglass's 26 March 1860
Speech on Slavery Unconstitutionality.
Cites this case at p. 16.
Sen. Chas. Sumner's 4 June 1860
Speech on Barbarism of Slavery
Discusses this case at pp. 223-224, 225, and 226.
Lucien B. Chase, English Serfdom and American Slavery (New York: H. Lang and Brothers, 1854, reprinted, NUP, 1968)
About.com Abolitionism Index
About.com British History Context
Chronology on the History of Slavery and Racism (1999)
U.S. Slavery From British School.net Perspective