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The decision, however, in this case of James Somersett, which was brought before the Queen's Bench (1772), is that which is the most prominent in more recent times. It is reported in 20 State Trials, where the elaborate speech-or rather essay-of Mr. Hargrave, and the foot-notes, tend to supply most of the curious learning connected with the history and legal doctrines to be found in the English authorities on the subject. The question here arose from the difference of jurisdiction existing between different portions of the British empire, and depended upon what should be held to be private international law, in respect of the right of a negro and his master, a domiciled inhabitant of a British colony who claimed him in England as owner. The judgment of Lord Mansfield in Somersett's case has obtained considerable fame, but is open to great exception in several particulars.

Before, however, we advert to the character and effect of this judgment, we must warn the reader not to take the impudent invention of Lord Campbell, in his "Life of Lord Mansfield,” for the judgment really delivered. This noble author's wholesale piracies and petty literary thefts-his blunders, inaccuracies, and pennya-liner's dealing with the material for his "Lives”—are known and laughed at in every literary circle in England and America; but we are not aware that it had been pointed out, before Mr. Cobb's book appeared, that Lord Campbell had concocted what no doubt he considers a very eloquent judgment for Lord Mansfield. He refers to Howell's "State Trials" as his authority; and Mr. Cobb accordingly, having compared the Campbell version with it, found they had very little in common, and the former gave altogether a false impression of Lord Mansfield's judgment. Mr. Cobb, consequently, much puzzled at this curious circumstance, addressed a letter to Lord Campbell, requesting his authority for this decision; and in reply Lord Campbell thus wrote-"I am not able to refer you to any printed authority for the words of the judgment of Lord Mansfield in Somersett's case, as I have given it. It agrees in substance with the printed report, and I have every reason to believe that it is quite correct." Lord Campbell says he had no "printed authority." If he had the authority of any manuscript or

of traditions, we presume he would have gladly revealed them; but he has only “every reason to believe" that his version of this “is quite correct." In fact, Lord Campbell's note to Mr. Cobb, while it is an admission of a foolish offence in one anxious to be considered a man of letters, was apparently written by a person who has no sense of the duties of a historian, and no shame at being detected in a flagrant violation of the most important of them. Lord Campbell improves upon Lord Mansfield, and imputes to him the clap-trap of saying, "the air of England has long been too pure for a slave to breathe;" that "villeinage had ceased in England, and could not be revived;" and, "I care not for the supposed dicta of judges, however eminent, if they be contrary to its principles." Lord Campbell, moreover, makes a present to Lord Mansfield of a Latin quotation

"Quamvis ille niger, quamvis tu candidus esses ;'

And invents for him a melodramatic ending, thus-"Let the negro be discharged!" These rhetorical flourishes are not only absolutely the interpolations of the biographer, but they are, as Mr. Cobb shows (p. 169), very infelicitous attempts at speech manufacture; for in R. v. Inhabitants of Thames Ditton (3 Doug., 300), thirteen years later than Somersett's case, Lord Mansfield stated that his decision "went no further than that the master cannot, by force, compel the slave to go out of the kingdom;" and that “villeins in gross may, in point of law, exist at that day."

Let us, however, carefully abjuring Lord Campbell's spurious version, note the result of what really transpired in court on this occasion. Mr. Stewart, it appeared, had brought over, in 1769, the negro Somersett with him from Virginia to England, and intended to return to America so soon as his business was completed. The negro served Stewart from the time of his arrival until 1st October, 1771, when he abandoned the service without the consent of his master, and thereupon Stewart delivered the negro to a shipmaster, for the purpose of being carried back to America to be sold; whereupon a writ of habeas corpus was issued against the shipmaster on behalf of Somer

sett, and the case was decided in his favour. Referring to the case of the "slave Grace" (2 Hagg. 105), which is especially interesting, as containing the comments of Lord Stowell upon this judgment of Lord Mansfield's, though the actual question before him was, whether, upon the return of a slave to the slaveholding states, the master could re-assert his authority, we find in the course of his judgment he said "It appears that Lord Mansfield was extremely desirous of avoiding the necessity of deciding the question (before him). He struggled hard to induce the parties to a compromise, and said he had known five cases so terminated out of six ; but the parties were firm to their purpose in obtaining a judgment, and Lord Mansfield was at last compelled, after a delay of three terms, to pronounce a sentence which, followed by a silent concurrence of the other judges, discharged this negro; thereby establishing that the owners of slaves had no authority over them in England, nor any power of sending them back to the colonies. Thus fell, after only two-and-twenty years, in which decisions of great authority had been delivered by lawyers of the greatest ability of the country, a system confirmed by a practice which had obtained, without exception, ever since the institution of slavery in the colonies, and had likewise been supported by the general practice of the nation, and by the public establishment of its government, and it fell without any apparent opposition on the part of the public. The suddenness of the conversion almost puts one in mind of what is mentioned by an eminent author on a very different occasion in the Roman History (ad primum nuntium cladis Pompeiana populus Romanus repente factus est alius)-the people of Rome suddenly became quite another people.

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"The real and sole question which the case of Somersett brought before Lord Mansfield, as expressed in the return to the mandamus, was, whether a slave could be taken from this country in irons, and carried back to the West Indies to be restored to the dominion of his master. And all the answer, perhaps, which that question required was, that the party who was a slave could not be sent out of England in such a manner, and for such a

purpose; stating the reasons of that illegality. It is certainly true that Lord Mansfield, in his final judgment, amplifies the subject largely. He extends his observations to the foundation of the whole system of the slavery code; for in one passage he says'that slavery is so odious that it cannot be established without positive law. Far from me be the presumption of questioning any obiter dictum that fell from that great man on that occasion; but I trust that I do not depart from the modesty that belongs to my situation, and I hope to my character, when I observe that ancient custom is generally recognized as a just foundation of all law; that villeinage of both kinds, which is said by some to be the prototype of slavery, had no other origin than ancient custom; that a great part of the common law itself, in all its relations, has little other foundation than the same custom; and that the practice of slavery, as it exists in Antigua and several other of our colonies, though regulated by law, has been, in many instances, founded upon similar authority." Lord Stowell further says—“Thus fell a system which had existed in this country without doubt, and which had been occasionally forced upon its colonies, and has continued to this day-that is, above ten yearswithout further interruption." In relation to the "air of our island being too pure for slavery to breathe in," he observes"How far this air was useful for the common purposes of respiration, during the many centuries in which the two systems of villeinage maintained their sway in this country, history has not recorded."

The whole of this judgment is worth examination; and the real history, character, and value of the Somersett case cannot be understood without studying Lord Stowell's masterly criticism of the authorities, and consideration of the principles applicable to the question before him.

The explanation of the course which the decision in the English court took, may be referred partly to the influence which popular opinion exerted over the judicial mind. Slaves were bought and sold in the London exchange. The representatives of his Britannic Majesty on the colonial bench administered

the law which recognized the institution of slavery; but public feeling was setting strongly against the system. This, somewhat late, had its operation on the legislature. The slave trade was the first attacked in 1788, when a bill was brought into the House of Commons to restrict it. It was abolished in 1807. The sentiment of hostility to slavery founded on humanity grew eventually sufficiently patent to cause the celebrated step-that of the final total emancipation throughout the whole British empire ; but that the reasons advanced in his judgment by Lord Mansfield are satisfactory, or that the arguments adduced by the bar were appropriate, or the subsequent pamphlet criticism philosophical, cannot, we think, be truly affirmed. Mr. Hurd complains, with great justice, that he does not find either in the English reports or treatises on the subject, any enunciation of definite principles of international jurisprudence; and that the loose and unscientific use among our jurists of the terms, positive law, natural law, municipal law, international law, law of nations, &c., interferes with the value and perspicuity of our judicial authorities and legal writers. While Mr. Hurd, in his comment upon Lord Mansfield's judgment, admits its inconsistency, and the unsoundness of the reasons expressed therein, he justifies its conclusions; for he contends that, on the theory of public law determining the "location of sovereign power" over persons and things in the American colonies, there was a gross inconsistency in his refusing, as a judge, to give a quasi-international support in England to the condition of slavery which he acknowledged to be lawful in the colony; for Lord Mansfield held not only that Somersett was legally a slave in the colony, but that the law by which he was held as a slave, rested upon the same supreme source of law upon which the territorial law of England depended for its coercive power in England, viz. :parliament, or the crown and parliament.

"But Lord Mansfield's conclusions may be justified," says Mr. Hurd, "by the fact, that the law of nations ('universal jurisprudence') had ceased to support slavery long before Somersett's case. From the middle ages to the present day, every European state

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