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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 years— without further interruption." In relation to the air of our island being too pare 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, somewhatlate, 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
has claimed and exercised the power to recognize or not to recognize the bond status of strangers. And when nations have not allowed their own subjects to hold negroes in slavery, they have, almost without exception, rejected the claims of foreign owners voluntarily entering their dominions. Their right so to do has never been questioned.”—(Hurd, 374.) This being the state of the laws of certain civilized kingdoms, the universality in jurisprudence, on which property the law of nature depends, was not, at the time of Somersett's case, such as to support the bond condition and its consequences contended for. The law of the colony, which was in this respect a foreign jurisdiction, was “jural” in and for the colony itself. But the law of England attributed the right of personal liberty to all natural persons within its territorial jurisdiction. The jus gentium varies at different times. Legislation and received judicial decisions may deprive an accepted rule of law of its universal character. About the epoch we have been referring to, the relation between master and slave had been subjected to the process of being unsettled, and it happened that Somersett’s was that on which «
a judicial tribunal had been obliged to decide in a controversy between the master and slave, whether such a right of private dominion and correlative obligation could be maintained in England." The sale of slaves in our seaport towns, and the continuance of enforced servitude of negroes brought over to England, remained in practice, its legality or illegality not being definitely raised in a determinate form, till the right was brought to an issue by the dispute between Mr. Stewart and his negro.
The uncertain state of the law with respect to the subject before us, in the last century in England, may be observed in the course of the discussion already adverted to. Thus we see, with regard to the question of the effect of the religious tenets of the slave, or the physical fact of his having been subjected to baptism, great difficulty seems to have existed. “There was once a doubt,” says Lord Hardwicke, "whether if slaves were christened they
1 In Horne's “Memoirs ” it is said, that "Sıracens who are taken by Christians, or bought, and brought to Christianity by grace,” become free.
would not become free by that act; and there were precautions taken in the colonies to prevent their being baptized, till the opinion of Lord Talbot and myself, then attorney and solicitor general, was taken on that point. We were both of opinion that it did not at all alter their state.”—Pearne v. Lisle, (Ambl. 75, anno 1769.) Moreover, in the same case, the opinion of Lord Holt, C. J., that the moment a slave sets foot in England he becomes free, is denied ; while, in 1762, the claim as to
negro (of whom it was thought advisable to own that "he had been baptized') having arisen, Lord Northington declared that, "As soon as a man sets foot on English ground he is free; a negro may maintain an action against his master for ill-usage, and may have habeas corpus if restrained of his liberty."
We may indeed perceive, that the mutability of the law was expressing itself in the irregularities and discrepancies which we observe in the interpretation of the common law of the realm, just as the law of nations, depending as it does on the juridical and mutable action of states, is itself liable to change. “It is capable (says Dr. Whewell) of progressive standards; it is fixed for a given time, and obligatory while it is fixed; but it must acknowledge the authority of morality, and must, in order to conform to the moral nature of man, become more and more moral.” Thus the “ change in the law" is noticed by Lord Stowell as having been introduced by Lord Mansfield in the Somersett case, was one of which he was the instrument, but which was the result of that which makes and changes human opinion at all times.
Before we glance at the jurisprudence of other states of Europe, with a view of seeing what has been the course pursued with regard to the subject we are considering, we may refer to the case in Scotland so often mentioned, Knight v. Wedderburne, (1775-8.) That it caused a great sensation is evidenced by the fact that Boswell (wbose predominant passion was to push himself into every thing that was making a noise in society, and to endeavour to attract a share of any passing notoriety) induced Dr. Johnson to talk and write on the subject. The great majority
of the lords of session decided for the negro, he tells us ; while four (including of course Lord Monboddo) “ maintained the lawfulness of a status wbich has been acknowledged in all ages and countries, and that when freedom flourished as in old Greece and Rome." However, the court held, "that dominion assumed over the negro under the law of Jamaica, being unjust, could not be supported in this country to any extent ; that therefore the defender had no right to the negro's service for any space of time, nor to send him out of the country against his consent." In 1757, another instance occurred of a slave rebelling against his master's right; but the negro died before the case was decided. It is curious that, during this period, there were actually classes of colliers, coal-heavers, and salters, in Scotland, whose status was that of slavery or bondage, being bound for life to particular collieries and works, and transferable with them by the masters. The 15 Geo. III. c. 28 (1775), was passed to put an end to this state of things, and this not being effectual, another in 1799 was passed to enforce the reform.
Amongst the anomalies with which the law of slavery in England was beset was this: that the statute book and treaties contained undoubted recognition of the principle of the institution, while judicial authorities and public opinion were condemning it. By Wm. III. c. 26, the trade in Africa, which signifies especially “the slave trade,” is recited to be “highly beneficial and advantageous to the kingdom, and to the plantations and colonies therewith belonging." By Article 12 of the treaty of Utrecht (between Great Britian and Spain, 1713), there was granted “to her Britannic Majesty, and to the company of her subjects established for that purpose," the contract for introducing negroes into Spanish America for thirty years; and facilities for selling them were given. The 23 Geo. II., c. 31, recites that it was necessary to supply the plantations and colonies “ with a sufficient number of negroes at reasonable rates.” The 29th section, however, shows that the distinction was made between kidnapping and violent seizing “natives, to the prejudice of the said trade," and the peaceful purchase of slaves from African slave-dealers. This