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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 ver= dict, que les Negro's fueront Infidels, subjects al un Enfidel Prince & use d'estre empt et vend en America, come Mer= chandize per le custom inter les Merchants et que le Plaintiff, að eux empt & fuit en possession d'eux hors de que posses=

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sion le defendant eux 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 vens inter Merchants come Merchandize & esteant Enfidels 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. Here a negro belonged to a manor in Barbadoes, and was part of the dowry of the widow. The negro was brought to England, and without her knowledge 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

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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

only because the proper form of remedy had not been resorted to. Thus, in Smith v. Gould, though it was decided that trover would not lie, as for articles of merchandise, yet the court seemed to think' that the plaintiff might have sustained an action of trespass against the defendants, for depriving him of a person held by him as a captive, even if he had acquired his rights over such captive by purchase. So in Butts v. Penny, the objection of Tompson, arguendo, was against the form of action, founded on the theory of a finding of goods or chattels 'here could be no property in the plaintiff more than in villeins.' In the cases

where trover was maintained, it appears that the court did not look for an act of legislation, or a local custom, or a custom of the realm, creating that property, but referred to the general usage or custom among all nations-the custom of merchants. Thus in Butts v. Penny, the verdict found that negroes were usually 'bought and sold in India, and if this were sufficient, property for conversion was the question;' and the court said, 'they are by usage tanquam bona,' qualifying it with the addition, that when they became Christians they would be enfranchised and in 2 Lev. 201, 'being usually bought,' &c. So in 3 Levinz, 336, negroes are said to be merchandize by the same law that animals are known to be merchandize, i. e., universal usage. Hardwicke says the negro slave is as much property as any other thing;' and what are persons, and what things, is decided by the law of nations hereinbefore described; that is, universal jurisprudence gathered from the general custom of civilized nations. In the only one of these decisions which declares the negro to be a freeman upon entering England (Smith v. Brown and Cooper), Holt says at the same time, that one might be a villein in England though not a slave. This language must be taken to mean, that the law of villeinage is the only law of involuntary servitude in England, and that this law, being local and prescriptive, could not apply to an African.

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According to Granville Sharpe's essay, many instances had occurred, before the date of its publication, of slaves being bought and sold in London; and Dunning states, in his argu

ment for the master in Somersett's case (1772), 'from the most exact intelligence I am able to procure, there are at present here about 14,000 slaves.' From these various cases of the actual support of negroes in England between the years 1677 and 1772, it may be gathered that the prevailing legal opinion supported the doctrine, that negroes might be held as slaves under the common law of England, either as chattel slaves, or persons in a condition of involuntary servitude.

"It is, however, herein claimed, that the true doctrine on this point, resulting from the principles of jurisprudence hereinbefore set forth, was this-Negroes or Moors, and Indians, while heathen and barbarian, could be held in chattel servitude as merchandise, in England, by the judicial recognition of natural reason in the historical law of nations forming a part of the common law of England, because being a recognized exposition of natural reason. But, upon becoming baptized and domiciled inhabitants of a Christian country, they became recognized as legal persons, either by the law of nations or by principles derived from Christianity, by the supreme power in England, and having territorial extent therein; and there was thereafter no principle attributable to the law of nations, or any other indication of natural reason, which could be judicially taken to sustain any right of control in one private individual over another, irrespective of the relations of the family; and the local law of villeinage could not apply to persons who had either themselves come, or whose immediate ancestors had come, into England from abroad.

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'Besides, the law of nations, it has been shown, is susceptible of changes (ante, § 39). It may have changed in Europe, during the period between the date of the last of these decisions and that of Somersett's case, from thus supporting chattel slavery to denying it altogether. It will be difficult for a judicial tribunal to discriminate when the law of nations thus changes, but after a lapse of years it may be easy to point out an alteration. The opportunities to do this occur oftener in the application of international law, because the recognition of a law of nations is more distinct therein than in the application of municipal or internal laws (ante, § 101)."

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