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GELLY VS. CLEVE. 181 been adjudged, that Trover lies of Negroes." This is cited in the subsequent cases.
§ 183. The case of Gelly vs. Cleve is spoken of in 1 Ld. Raymond, 147, as occurring in 1694; as follows:
"Hill. 5 Will. & Mar. C. B. between Gelly and Cleve, adjudged that trover will lie for a Negro boy; for they are heathens, and therefore a man may have property in them, and that the court, without averment made, will take notice that they are heathens. Ex relatione m'ri Place"
§ 184. The case in 1 Ld. Raymond, 147, is that of Chamberlayne vs. Harvey, 8 & 9 Will. 3, 1697, which is there given as follows:
Trespass for taking of a Negro pretii 1001. The jury find a special verdict; that the father of the plaintiff was possessed of this Negro, and of such a manor in Barbadoes, and that there is a law in that country, which makes the Negro part of the real estate; that the father died seized, whereby the manor descended to the plaintiff as son and heir, and that he endowed his mother of this Negro and of a third part of the manor: that the mother married Watkins who brought the Negro into England, where he was baptized without the knowledge of the mother; that Watkins and his wife are dead, and that the Negro continued several years in England; that the defendant seized him, &c. And after argument at the bar several times by Sir Bartholomew Shower of the one side, and Mr. Bee of the other, this term it was adjudged that this action will not lie. Trespass will lie for taking of an apprentice, or hceredem apparentem. An abbot might maintain trespass for his monk; and any man may maintain trespass for another, if he declares with a per quod servitium amisit; but it will not lie in this case. And per Bolt chief justice,1 trover will not lie for a Negro, contra to 3 Keble 785, 2 Lev. 201, Butts vs. Penny." Then follows the reporter's reference to Gelly vs. Cleve, as above given. The report of the same case in Carthew's R. 396, is,"Trespass, &c., for that the Defendant vi d? armis unum
'Bnrge, VoL I. p. 736, gives as the report of the Judges upon the memorial of the African Company touching theAssiento, in 1689—"In pursuance of his Majesty's order in Council hereunto annexed, we do humbly certify our opinions to be that negroes are merchandise," &c. Signed by J. Holt and others.
182 OHAMBEBLATNE V8. HARVEY.
JEthiopem (Anglice vocaf) a Negro ipsius querentis pretii 100Z. a/pud London] &c. took and carried away and kept the Plaintiff out of Possession of the said Negro from that Time usque diem exhibitionis BiUae prcedict' per quod he (the Plaintiff) lost the Use of his said Negro.
"Upon not guilty pleaded, the Jury gave a special Verdict, the substance whereof was as followeth:
"ss. They find that the Negro had been baptized after the Taking, &c. and the matter was argued upon that Point, (viz.) Whether the Baptism was a Manumission, and as to that the Court gave no opinion.
"Sed per Curiam, An Action of Trespass will not lie, because a Negro cannot be demanded as a chattel, neither can his Price be recovered in Damages in an Action of Trespass, as in case of a Chattel; for he is no other than a slavish Servant, and the master can maintain no other Action of Trespass for taking his Servant, but only such which concludes per quod servitium amisit, in which the master shall recover for the Loss of his Service and not for the Value, or for any damages done to the Servant.
"Judgment quod querens nil capiat per Billam," The pleadings and special verdict in this case are given in the third volume of Ld. Raymond, p. 129.1
§ 185. In the year 1705, occurred the cases of Smith vs. Brown and Cooper, and Smith vs. Gould, the first of which is reported in 2 Salkeld 666 and Holt's R. 495. The report as in Salkeld is,
"The plaintiff declared in indebitatus assumpsit for 20?. for a negro sold by the plaintiff to the defendant, viz. in parochia beatae Maria? de Arcubus in warda de Cheape, and verdict for the plaintiff; and on motion in arrest of judgment, Holt, C. J. held, that as soon as a negro comes into England, he becomes free. One may be a villein in England, but not a slave. Et per Powell, J. In a villein the owner has a property, but it is an inheritance; in a ward he has a property, but it is a chattel real; the law took no notice of a negro. Holt, C. J. You SMITH VS. BROWN AND COOPER. 183
1 The arguments of counsel, which will be found interesting, are given in the report of the same case, 5 Mod. K. 187.
should have averred in the declaration, that the sale was in Virginia, and, by the laws of that country, negroes are saleable; for the laws of England do not extend to Virginia, being a conquered country, their law is what the king pleases; and we cannot take notice of it but as set forth; therefore he directed the plaintiff should amend, and the declaration should be made, that the defendant was indebted to the plaintiff for a negro sold here at London, but that the said negro at the time of sale was in Virginia, and that negroes by the laws and statutes of Virginia, are saleable as chattels. Then the attorneygeneral coming in said they were inheritances, and transferable by deed, and not without; and nothing was done."
The report of this case in Holt's R. 495, is,
"In an Indebitatus Assumpsit the Plaintiff declared for 20Z. for a negro sold to the Defendant, in the Parish of the Blessed Mary of the Arches in the Ward of Cheap: There was a Verdict for the Plaintiff, and Motion in arrest of Judgment.
"Holt, C. J. As soon as a Negro comes into England he becomes free; and one may be a villein in England; but not a slave: You should have averred in the Declaration that the sale of the Negro was in Virginia, and by the laws of that country Negroes are saleable; for the laws of England do not extend to Virginia, and we cannot take notice of their Law but as set forth: Therefore he ordered the Plaintiff should amend and alter his Declaration, that the Defendant was indebted to him so much for a negro sold here at London, but that the said negro at the time of the sale was in Virginia / and that negroes by the Laws and Statutes of Virginia may be sold as chattels.
"Powel, J. In a Villein the Owner has a Property, but 'tis an Inheritance; the law takes no notice of a Negro."
The action in this case appears to have been for money on sale of a negro, being in Virginia, where it was admitted slavery was lawful. But the court on the pleadings held itself bound to suppose that the transaction was in England, and, so viewing it, held the contract without consideration, as for the purchase of what could not be an article of commerce by the law of England.1
'Lord Mansfield said in Somerset's case, Loft's R. 17: "Contract for sale of a slare is good here; the sale is a matter to which the law properly and readily attaches, and will maintain the price according to the agreement"
184 8MITH VS. GOULD.
The case of Smith vs. Gould is also reported in 2 Salkeld, 666, and is also in 2 Ld. Raymond, 1274. The report in Salkeld is mostly of the argument for the owner, which was made by the reporter as counsel. In Ld. Raymond it is: "In an action of trover for a negro, and several goods, the defendant let judgment go by default and the writ of inquiry of damages was executed before the lord chief justice Holt at Guildhall in London. Upon which the jury gave several damages, as to the goods, and the negro; and a motion as to the negro was made in arrest of judgment, that trover could not lie for it, because one could not have such a property in another as to maintain this action. Mr. Salkeld for the plaintiff argued, that a negro was a chattel by the law of the plantations, and therefore trover would lie for him; that by the Levitical law the master had power to kill his slave, and in Exodus xx. ver. 21, it is said, he is but the master's money; that if a lord confines his villein, this court cannot set him at liberty: Fitz. Villain 5, and he relied on the case of Butts and Penny, 2 Lev. 201, 3 Keb. 785, as in point, where it was held, trover would lie for negroes. Sed non allocatur. For per totam curiam this action does not lie for a negro, no more than for any other man; for the common law takes no notice of negroes being different from other men. By the common law no man can have a property in another, but in special cases, as in a villein, but even in him not to kill him: so in captives took in war, but the taker cannot kill them, but may sell them to ransom them: there is no such thing as a slave by the law of England. And if a man's servant is took from him, the master cannot maintain an action for taking him, unless it is laid per quod servitium amisit. If A. takes B. a Frenchman captive in war, A. cannot maintain an action, quare cepit B. captivum suum OaUicum. And the court denied the opinion in the case of Butts and Penny, and therefore judgment was given for the plaintiff, for all but the negro, and as to the damages for him, quod querens nil capiat per billam."
In Salkeld the court is made to speak somewhat differently as to an action for taking away a captive; saying that trespass
PEAI4NE VS. LISLE. 185
might lie, though not trover. "Sed Curia contra. Men may be the owners, and therefore cannot be the subject of property. Villenage arose from captivity, and a man may have trespass quare captivum suum cepit,1 but cannot have trover de gallico suo. And the court seemed to think that in trespass quare captivum suum cepit, the plaintiff might give in evidence that the party was his negro, and he bought him."
§ 186. The decision in Pearne v. Lisle, 1749, Ambler's E. 75, was on motion before the Chancellor to discharge a ne exeat regno, the plaintiff's claim being founded on the hire for certain negroes then held by the defendant in Antigua. The writ was discharged on the ground that it was a legal demand for which the defendant might be arrested at law, but the Chancellor (Yorke) Lord Hardwicke, said:
"As to the nature of the demand. It is for the use of Negroes. A man may hire the servant of another, whether he be a slave or not, and will be bound to satisfy the master for the use of him. I have no doubt trover will lie for a Negro slave; it is as much property as any other thing. The case in Salk. 666, was determined on the want of proper description.' It was trover pro uno Ethiope vocat. Negro, without saying slave; and the being Negro did not necessarily imply slave. The reason said at the bar to have been given by Lord C. J. Molt, in that case, as the cause of his doubt, viz: That the moment a slave sets foot in England he becomes free, has no weight in it, nor can any reason be found, why they should not be equally so when they set foot in Jamaica, or any other English plantation. All our colonies are subject to the laws of England, although as to some purposes they have laws of their own. There was once a doubt, whether, if they were christened, they 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 SolicitorGeneral, was taken on that point. We were both of opinion, that it did not at all alter their state.' There were formerly vil
1 Register Brevinm, 102 b. (edition 1687) gives a form—" quondam H. Scotum per ipsum W. de guerra captum tanquam prisonem suum."
'A misrepresentation; as Mr. Hildreth very justly remarks: Despotism in Am., p. 197.
* This opinion was, properly speaking, on a question of private international law,