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176 NEGROES IMPORTED. ship trading to Africa, shall by fraud, force, or violence, or by any other indirect practice whatsoever, take on board, or carry away from the coast of Africa any negro or native of said country, or commit, or suffer to be committed, any violence on the natives to the prejudice of the said trade;" and a forfeiture for such action is declared. For though, in the earliest period of the intercourse of Europeans, the English included, with the African tribes, negroes were kidnapped or piratically seized by force, and the practice had perhaps at first been considered lawful by the law of nations, the common opinion of Europeans, long before the date of this statute, had been changed, and a distinction made between the legal slavery of negroes bought on the coast from African slave-merchants, and the condition of such stolen captives.1
§ 177. From the sanctioning a trade in negroes, as articles of merchandise, under the British flag, without limiting the trade to any part of the imperial dominions, it would be a just inference that the possession of such property would be lawful in England. The entry of such property into England is contemplated in the first of the above acts, sec. 7, where the duties are specified " which shall be paid at the place of importation upon all goods and merchandise (negroes excepted) imported in (into) England, or any of his majesty's plantations or colonies in America from the coast of Africa; * * * and that all goods and merchandise (negroes excepted) that shall be laden or put on board any ship or vessel on the coast of Africa, between Cape Blanco and Cape Mount, and shall be imported into England, or into any of his majesty's plantations or colonies aforesaid, shall answer and pay the duties aforesaid," &c.
1 Wheaton: Internat. L., p. 24, and Law of Nations, p. 85, cites Soto de Justitia et Jure (A. D. 1568), Lib. iv., Qutest. ii., art. 2: "If the report which lias lately prevailed be true, that Portuguese traders entice the wretched natives of Africa to the coast by amusements and presents and every species of seduction and fraud, and compel them to embark on their ships as slaves, neither those who have taken them, nor those who buy them from the takers, nor those who possess, can have safe consciences, until they manumit these slaves, however unable they may be to pay ransom." This is indeed only the opinion of a private man,—his moral judgment of what is right; but the frequency with which it has been cited by jurists gives it the character of an exponent of the juridical intention of European states.
For otlier illustrations of this distinction, see 1 Hiine, p. 300, cites Asthley's Collection, I, 160. Pott, ch VI., Massachusetts, 1645. 3 Har. & McHen. R,, 501, and Wheeler's Law of Slavery, p. II.
NEGROES IN ENGLAND. 177
§ 178. When any natural person had been brought within some European territorial jurisdiction, as a slave, it would be a question,—what was the nature of the right claimed in respect to him, and what persons could be held as slaves,—whether heathen Africans, Moors, or Indians only, or any other and what races of men? The question might be raised, whether the property was still in the person of the negro, &c, or in the right to his service? The question would be of the nature, operation, and personal extent of that law of nations under which he had been introduced into the jurisdiction. If his slavery were sustained by that law while a heathen, it would then be a question whether, after conversion, or baptism, his condition was determined by that law, either to be that of a chattel or of a bondsman. And if no principle of the law of nations, as then received, determined his condition, it would be then a question whether any law judicially known as one of national origin (jus proprium, § 152) subjected him to the condition of servitude.
§ 179. The recognition of a principle of the law of nations, under the juridical power of some one state or nation, is made in the application of either municipal (internal) or international private law; according to the character of the persons whose relations are to be determined; that is, according as they are regarded simply as the domiciled inhabitants of the jurisdiction, without regard to the existence of other jurisdictions, or as persons anteriorly subject to the juridical power of some other state.
Assuming, then, that the only natural persons who could be property, or could be held in involuntary servitude, by the operation of universal jurisprudence—the law of nations—were negroes, Moors, or Indians, and that there were none such in England, before the modern extension of the African slave trade during the period in which the colonies were planted in America,1—the question of the legality of the slavery of a person of that description, under the territorial jurisdiction of the law of 178 QUESTION OF INTERNATIONAL LAW. England, would be, in the first instance, a question of the private international law—the law determining the relations of persons entering the country as alien to its jurisdiction. For, whether the negro, Moor, or Indian were brought into the realm by an alien or by a domiciled owner, the claim of that owner would be a question of that character, either by the recognition of the alien character of the slave, or by the assertion of the legal continuance of a former status or condition resulting from anterior subjection to the law of a foreign jurisdiction;' presenting a question of the so-called "conflict of laws," and the effect of comity as a rule to guide judicial tribunals. But since a natural person who had been a slave in a foreign jurisdiction could have no proper domicil, distinct from that of his master or owner, or would have a domicil only according to the intention of the owner, the question of the condition of such a person in England would belong to the international law, or to the municipal (internal) law, according to the purpose of the owner, either to remove him to the foreign jurisdiction in which he had been held in slavery, or to maintain his custody and control, in England, as the right of a domiciled inhabitant.'
1 Barrington on Statutes, time of 1 Rich. II.,—a chapter to be noted in connection with villenage, as well as chattel slavery—cites Hakluyt, that in the year 1553, four and twenty negroes were brought into England from the coast of Africa.
The question, as presented under the first alternative, will be considered in another chapter. But in the other case, where the question would be of the continued servitude of such negro, Moor, or Indian, under the local or territorial law of England, (if his status or condition was to be determined independently of any statute, that is, by the customary or common law alone,) it would still be necessary to determine—whether the law of nations, historically known, was to be applied as part of that common law, acting as a personal law on the condition of a certain class of natural persons ;'—whether that law continued the same; and whether it was prevented from having any force by reason of the extent of rules of local or national origin (jus proprium) having contrary effect upon the individual and relative rights of private persons.4
§ 180. The question of the possible existence of involuntary servitude under the law of England, seems to have been from
1 See ante, § 68, the note, and § 69. * Comp. ante, § 121.
"Seeonfe, § 111. « See ante, § 144.
QUESTION OF INTERNAL LAW. 179
time to time a subject of judicial inquiry during the period referred to. In the year 1640, when the impeachment of the judges of the Star-chamber by the House of Commons, in behalf of John Lilburne, went up to the House of Peers, "it was urged by those that managed the same, that in the eleventh of Elizabeth one Cartwright brought a slave from Russia, and would scourge him, for which he was questioned; and it was resolved that England was too pure an air for slaves to breathe in.'" m
Barrington, on the Statutes, 5th ed. p. 313, in referring to this' remarks, that the word slave is used in 1 Edw. VI. c. 3, where it is enacted that a vagabond and idle servant shall become a slave to his master. But the 3-4 Edw. VI., c. 6, expressly repeals so much of that act "as tendeth to make vagabonds slaves." (1 Bla. Comm. 424. Keble's Statutes.)
§ 181. The question of the lawfulness of the slavery of negroes in England was frequently, after this date, discussed before the courts. The reports are meagre in stating the arguments upon which they were decided. The earliest of these occurred in 1677, 29 Car. II. in B. R. Butts vs. Penny, which in 2 Levinz, 201, is reported as follows.
1 2 Rushworth, 468. Considering the time at which W. Harrison wrote. 1577— an author published in Holinshed, his statements may be here cited, though his style does not inspire much confidence. He says: Hoi. Chronicles, Vol. I. 168, "As for slaves and bondmen we have none, naie such is the privilege of our countrie by the especial grace of God, and bountie of our princes, that if anic come hither from other realms, so soone as they set foot on land they become so free of condition as their masters; whereby all note of servile bondage is utterlie removed from them, wherein we resemble (not the Germans, who had slaves also, though such as in respect of the slaves of other countries might well be reputed free, but) the old Indians and the Taprobanes, who supposed it a great injuria to nature to make or suffer them to be bond whom she in her wonted course doth product and bring forth free."
The author introduces this in a description of the laboring class, of whom he says: "This fourth and last sort of people, therefore, have neither voice nor authority in the commonwealth, but are to be ruled, and not to rule other," &c.
* This passage in Rushworth seems to be the original authority for this celebrated dictum. Barrington, in the place cited, attributes the saying to Lilburne. He also refers to Fitzherbert, as saying with regard to villein "tenures in the same reign, that a notion, originally inculcated by Wickliff and his followers, began to prevail, of its being contrary to the principles of the Christian religion that any one should be a slave; and hence, in more modern times, slavery hath been supposed to be inconsistent with the common law, which is said to be founded upon Christianity;" and adds, "Be the law as it may, the persuasion contributed greatly to the abolishing villenage; and the principle, whether adopted by the common law from Christianity, or otherwise, cannot be too much commended or insisted upon. I cannot, however, but think, that neither the Christian religion, nor the common law, ever inculcated such a tenet." 1 Where villenage is described.
180 BUTTS VS. PENNY.
"Trover for 100 Negroes, and upon Non Cidp. it was found by special Verdict, that the Negroes were Infidels, and the Subjects of an Infidel Prince, and are usually bought and sold in America as Merchandise, by the Custom of Merchants, and that the Plaintiff bought these, and was in possession of them until the Defendant took them. And Thompson argued there could be no Property in the Person of a Man sufficient to maintain Trover, and cited Co. Lit. 116.' That no Property could be in Villains but by Compact or Conquest. But the Court held, that Negroes being usually bought and sold among Merchants, as Merchandise, and also being Infidels, there might be a property in them sufficient to maintain Trover, and gave Judgment for the Plaintiff, nisi Causa, this Term; and at the end of the Term, upon the Prayer of the Attorney-General to be heard as to this Matter, Day was given until next Term." The same case is reported in 3 Keble, 785, thus:"Special Verdict in Trover of 10 Negroes and a half find them usually bought and sold in India, and if this were sufficient property on (for) Conversion, was the question. And Thomson, on 1 Inst. 116, for the Defendant, said here could be no property in the Plaintiff more than in Villains; but per Curiam, they are by usage tanquam bona, and go to Administrator until they become Christians; and thereby they are Infranchised: And Judgment for the Plaintiff, Nisi, and it lieth of moety or third part against any Stranger, albeit not against the other Copartners.'"
§ 182. In the case Chambers vs. Warkhouse, in the year 1693, 4 Will, and Mary, which was 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 Monkies, because they are Merchandise; and for the same Reason it has
* 20 Howell's State Tr. _ 62. Mr. Hargrave said in his argument, that the Roll of this case had been examined for him by a friend, "and according to the account of it given to me, though the declaration is for negroes generally in London, without any mention of foreign parts, yet from the special verdict it appears that the action was really brought to recover the value of negroes, of which the plaintiff had been possessed, not in England, but in India. Therefore, this case would prove nothing in favor of slavery in England, even if it had received the Court's judgment, which, however, it never did receive, there being only an 'ulterius consilium' on the Roll"