Page images
PDF
EPUB

is, we confess, an incumbrance to the investigation, calculated indeed to enlist strong prejudices and excite unpleasant party passions, but adding nothing towards the happy settlement of known difficulties. The slave-owner in America, the cottonspinner in Manchester, the country gentleman, and the railway con. ractor, may, as it seems to us, be equally good men and orthodox Christians ; and the practice of pulling Bibles to pieces, in order to construct missiles wherewith to assault our neighbour, is a bad use to which to apply the sacred volumes. It seems to us a sad waste of a man's time, and can hardly increase his literary or legal credit to incorporate in his work such passages as the following :“The first great revelation of moral precepts was given upon Mount Sinai, and condensed in that most wonderful code, the decalogue. The precepts are not only pure, “but the law of the Lord is perfect '—(Psalms xix.) Its general teachings are not only true, but by no implication can sin find an apology or excuse therein. This law was not intended for any particular age or people. It is that universal law of God which Christ came not to destroy, but to fulfil. When He was asked by the young man,

What shall I do to inherit eternal life?' his reply was, 'Keep the commandments. The last of these commandments is, Thou shalt not covet thy neighbour's house, thou shalt not covet thy neighbour's wife, nor his man-servant, nor his maid-servant, nor his ox, nor his ass, nor any thing that is thy neighbour's'(Exodus xx. 18.) The right of property in the man-servant and maid-servant is not only here plainly recognised, but is protected even from covetousness.'

."? The writer then proceeds to show that Abraham was a large slaveholder, “but ‘God blessed him. How? by opening his eyes to the sin of slavery? No! but by giving him flocks and herds, and silver and gold, and men-servants and maidservants, and camels and asses.'Further, it is "generally remarked that God not only gave slaves to Abraham as evidence of his blessing, but he commanded the Jews to make slaves of the heathen round about them-(Leviticus xxv. 44, 46);” that "the Almighty thus gave his people the charter under which they

1 Cobb on Slavery.

enslaved the Canaanites," “ that revelation thus sustains the conclusion to which the natural law points;" namely, that the inferiority of race makes slavery consistent with the Divine will. Mr. Cobb is, like other writers who pursue a similar line of argument, a little pressed with the fact that polygamy stands on the same footing with slavery. But, after an amusing attempt at casuistical interpretation, he honestly admits that polygamy is not necessarily a sin. The author then conducts us into the

bright light of Christianity," though without our deriving any greater advantage than when he was drawing inferences from the code of Moses,

We must not forget that the practice of importing such arguments as the above into a treatise on the “law of negro slavery” is not peculiar to American writers. During the discussion of emancipation in the West Indies, all parties resorted to them indiscriminately, just as the Puritans and High Churchmen did in the controversies of a former age. The study of astronomy, moreover, of old, was impeded, and geology, among certain contemporary schools, is now disfigured by the like intrusive considerations.

An excuse, however, for introducing into legal treatises a reference to religious systems is, that international law depends upon natural law; that the test of a law being a natural one is its universality, which involves the necessity of the examination of the religions of mankind. There is doubtless a relationship between Christianity and the view taken of slavery in English jurisprudence, which is rather a subject for curiosity than of practical value. We refer to the maxim, that “ Christianity is part of the common law of England.” Indeed, the “law of God," which is a phrase sufficiently vague to be employed alike to impose upon one's self and to deceive others, is probably admitted as supreme in all legal systems; but that which the legislature adopts and the tribunals enforce, is in fact the law which the jurist must study, and the subject obey. So, as Mr. Hurd has observed—“If Christianity is to be held part of the common law of England, a sanction given to the slavery of Africans or negroes in any part of the world, is

a proof that the state did not at that time regard such slavery as contrary to Christianity, or as being for that reason forbidden by the common law."

The litigation and the legislation involving the question of involuntary servitude in England, afford some evidence of what was wont to be held in this country as to the lawfulness of slavery, although there is great discrepancy in the authorities, and in the reports of the language employed in our courts. In 1640, it was resolved in the House of Commons, “ that England was (sic) too pure an air for slaves to breathe in." This celebrated dictum, which has since been hackneyed and attributed to various sources, was then probably for the first time enunciated. In Barrington on the Statutes (p. 282, 3rd edition), it is said that it was John Lilburne himself, upon the impeachment of the judges of the Starchamber, who affirmed the bold and patriotic doctrine in relation to the scourging of a slave, brought by one Cartwright from Russia. Barrington also refers to Fitzherbert, who says that “ Wickliff and his followers inculcated the principle of slavery being repugnant to Christianity, and hence inconsistent with the common law, which is said to be founded on Christianity.” Although this persuasion happily contributed greatly to the abolishing of villeinage, 'yet Barrington adds that, in his opinion, neither in the Christian religion nor the common law such a tenet is to be found. At all events, by 1 Edw. VI. c. 3, it was enacted that a vagabond and idle servant should become a slave to his master.

Mr. Hurd has, following the report of Somersett's case, and the notes, collected some of the earlier cases, where the lawfulness of negro slavery was discussed. The earliest of these occurred in 1677, 29 Car. II., in B. R. The report of Butts v. Penny, in 2 Levinz, 201, is as follows:

“Trover pur 100 Negro's, & sur Non. Culp. special verdict, que les Negro's fueront Enfideis, subjects al un Infidel Prince & use d'estre empt et bend en America, come Merchandize per le custom inter les Merchants et que le plaintiff, ad eux empt & fuit en possession d'rux hors de que posses

sion le defendant eur prit. Et fuit argue per Tompson, que nul property peut estre en le person d'un home sur que de maintainer Trover, & cite Co. Litt. 116 nul property peut estre en Villains nisi per compact ou conquest. Mes le court tient que ils esteant usualment, empt et beno inter Merchants coine Merchandize & esteant Infidels un property peut estre en eux sufficient a maintainer l'action. Et done judgment pur le plaintiff nisi causa cest Term. Mes al fin del Term sur le prier del Attorney-General d'estre ousterment oye en le case, four fuit done al prox. Term."

As Best, J., observed in Forbes v. Cochrane (2 B. and C., 471), this case was really never decided ; and he adds, if it had been, it was overruled by Smith v. Gould, 2 Lord Raym., 1274.

In 1693, Chambers v. Warkhouse came before the court. This was an action in trover for dog-whelps; the question was whether they could be property, and it was said by the court, “Trover lies of musk-cats and of monkeys, because they are merchandise, and for the same reason it has been adjudged that Trover lies of Negroes.But not only are negroes like musk-cats, monkeys, and merchandise, but a negro boy being a heathen is the subject of property, "and the court without averment made will take notice that they are heathens.”(Gelly v. Cleve, referred to in 1 Lord Raym., 147, ex relatione m'ri place.) Trespass was brought for taking a negro, pretii £100, in Chamberlayne v. Harvey, 1 Lord Rayne, 147, and Carthew 396. belonged to a manor in Barbadoes, and was part of the dowry of the widow. The negro was brought to England, and without her kuowledge baptized. The court held that any man may maintain trespass for another per quod servitium amisit, but said it would not lie in this case. Holt, C. J., is further reported to have said, that trover will not lie for a negro. According to Carthew's report, the court would give no opinion as to baptism being a manumission. “ An action of trespass will not lie because a negro cannot be demanded as a chattel, neither can his price be reco

Here a negro

1 See also 5 Mod. R., 187. The reports of these older cases are so contradictory, that they cannot well be relied on as authorities.

vered in damages on an action of trespass, as in case of a chattel, for he is no other than a slavish servant," and only for the loss of service under the averment of per quod serv. amisit, can damages be recovered. This case is certainly not in harmony with those previously referred to.

Coming down to the year 1705, we find the case of Smith v. Brown and Cooper (Holt, 495). In an indebitatus assumpsit the plaintiff declared for £20, for a negro sold to defendant in the parish of the Blessed Mary of the Arches, in the ward of Cheap. Verdict for plaintiff. On motion in arrest of judgment, Holt, C. J., said, “ As soon as a negro comes into England he becomes free." But in truth this case, like many others of the date, is not trustworthy. Lord Mansfield remarked on it, that it was on a petition in Lincoln's Inn Hall, after dinner, and that it was “not unusual” to make mistakes at that hour. It is clear from this case, however, that in England at all times it was a point always disputable, whether rights could be claimed in slaves. We may mention Sir Thomas Grantham's case as another rather curious illustration of this, (C. P. Hil. 7, 2 & 3 Jam. II.) “He bought a monster in the Indies, which was a man of that country, who had the shape of a child growing out of his breast as an excrescence, all but the head. The man he exposed for profit.” But the monster turned Christian and got baptized, whereupon the question of the man's right was raised but not decided.

Upon the above cases Mr. Hurd remarks as follows:-" It will be noticed that most of the cases in which the above decisions were made, were in trover; to maintain which it was essential that the subject of the action should be property-goods found by another and converted to his use. Now it has been shown that a condition of voluntary servitude may be supported by the law, while the character of property, or a chattel condition, is not attributed to the person held in bondage. A decision that trover did not lie, for the reason that slaves were not articles of commerce, did not therefore necessarily involve the conclusion that negroes could not be held in servitude in England, in the same manner as villeins had been; and the claim might have failed

« PreviousContinue »