« PreviousContinue »
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, 2. e., universal
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.
“According to Granville Sharpe's essay, many instances had occurred, before the date of its publication, of slaves keing 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 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 recoguition 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 po 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.
Besides, the law of nations, it has been shown, is susceptible of changes (ante, g 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
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)."
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 bas 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.Cobbaccordingly, 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.
“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 seut out of England in such a manner, and for such a