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186 sHANLEY ML HAKVEY.
leins or slaves in England, and those of two sorts, regardant and in gross; and although tenures are taken away, there are no laws that have destroyed servitude absolutely. Trover might have been brought for a villein. If a man was to come into a court of record, and confess himself villein to another, (which is one way of being a villein,) what the consequence would be I will not say, but there is no law to abolish it at this time."
§ 187. The case of Shanley vs. Harvey, 1762, 2 Eden's R 126, was by an administrator against Harvey a negro, certain trustees, and the next of kin, to account for part of the personal estate,—a sum of money given shortly before death, by the deceased, to the negro. Among the circumstances mentioned was—that this negro after having been brought to England had been given to the deceased, "who had him baptized, and changed his name." The claim does not appear to have been for the negro, but for the money; and the question to have been whether he was capable of receiving the money as a gift. The whole decision is, by the Lord Chancellor, Northington, "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 a Habeas Corpus if restrained of his liberty."
§ 188. It will be noticed that most of the cases in which the above decisions were made were in trover; to maintain which it was essential that the subject of the action should be property —goods found by another and converted to his use. Now it has been shown that a condition of voluntary servitude may
as determining the relations of persons domiciled in different parts of one empire, and the extent or jurisdiction of the law supporting slavery in the colonies; for the slaves referred to in the opinion are such as were brought into England by persons domiciled in the English colonies and intending to return thither with them. In this view it would be noticed in another chapter. But it will be given here because, as it is worded, it would seem to support slavery in England, as the condition of a domiciled inhabitant. It is taken from an essay published in London by Granville Sharpe, about the year 1772.
"In order to certify a mistake that slaves become free by their being in England, or being baptized, it hath been thought proper to consult the King's Attorney and Solicitor General in England, thereupon, who have given the following opinion subscribed with their own hands. Opinion. We are of opinion that a slave by coming from the West Indies to Great Britain or Ireland, either with or without his master, doth not become free; and that his master's property or right in him is not thereby determined or varied; and that baptism doth not bestow freedom on him, nor make any alteration in his temporal condition in these kingdoms. We are also of opinion that the master may legally compel him to return again to the Plantations. June 14, 1729. P. Yorke; C Talbot."
QUESTION OF CHATTEL CHARACTER. 187
be supported by the law while the character of property, or a chattel condition, is not attributed to the person held in bondage. A decision that trover did not lie, for the reason that slaves were not articles of commerce, did not therefore necessarily involve the conclusion that negroes could not be held in servitude in England in the same manner as villeins had been; and the claim might have failed only because the proper form of remedy had not been resorted to. Thus in Smith vs. 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 vs. Penny the objection of Thompson, 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 vs. 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 merchandise by the same law that animals are known to be merchandise, i. e. universal usage. 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 vs. 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 villenage
188 THE LEGAL DISTINCTION.
is the only law of involuntary servitude in England, and that this law, heing local and prescriptive, could not apply to an African.1
§ 189. According to Granville Sharpe's essay many instances had occurred, before the date of its publication, of slaves being bought and sold in London: and Dunning states, in his argument for the master, in Somerset's case in 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 slavery 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 in a condition of involuntary servitude.
It is however herein claimed, that the true doctrine on this point, resulting from the principles of jurisprudence herein-before 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 recognition 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
1 Molloy: De Jure Maritimo, London, 1744, B. 3, a i. 7. "Though Slavery and Bondage are now become discontinued in most parts of Christendom, and to that degree that for the person of a man, be he Moor or other Indian, a Trover is not now maintainable by the laws of England "—citing Salk. 666, 667—goes on to say that there may be a lawful bond service for life.
! Wade's British Chronol. p. 833: "Prior to this judgment (Somerset's case) the personal traffic in slaves resident in England had been as public in London as in the West India Islands. They were openly sold on the Royal Exchange." By Lord Stowell, 2 Hagg. Adm. R p. 105: "They were sold on the Exchange and other places of public resort by parties themselves resident in London, and with as little reserve as they would have been in any of our West India possessions. Such a state of things continued, without impeachment, from a very early period up to nearly the end of the lust century."
'In Neal v. Farmer, 9 Geo. 555-676, the court, in arriving at the conclusion that it is not felony at common law to kill a negro slave, is greatly embarrassed by assuming that slavery could only have been supported in England by the law of villenage, and yet holding that it had a legal existence in Georgia without positive legislation, and as property recognized by "the law of nations."
SOMERSET'S CASE. 189
having territorial extent therein ;l and there was thereafter no 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 villenage 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 change (ante § 39). It may have changed in Europe, during the period between the date of the last of these decisions and that of Somerset'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 years it may 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).
§ 190. The decision of the King's Bench in 1772, in favor of the freedom of the negro James Somerset, might have been maintained upon the doctrine just stated. The question arising in that case was more properly an international or quasi-international one;—a question under the private international law existing between different jurisdictions of the British Empire, which will form the subject of a separate chapter (ch. vii.): the owner of the negro being still the domiciled inhabitant of a colony, and the question of the domicil of the negro being dependent on that of his condition. But it does not appear that in the view of the court the case was affected by this circumstance, and the language of the decision would apply with the same force to parties supposed to have a domicil in England.
The judgment finally pronounced by Lord Mansfield in this case, June 22, 1772, is thus given in Loft's R., p. 18:"—
"On the part of Somerset, the case which we gave notice 190 mansfield's Decision.
1 There appears to be a recognition of this principle in Home's Mirrour, o. 2, sec. 28. "Villeins become free many ways; some by baptism, as those Saracens who are taken by Christians or bought, and brought to Christianity by grace."
* See also the report in 20 Howell's State Trials, p. 1.
should be decided this day, the court now proceeds to give its opinion. I shall recite the return to the writ of habeas corpus, as the ground of our determination; omitting only words of form. The captain of the ship, on board of which the negro was taken, makes his return to the writ in terms signifying that there have been and still are, slaves to a great number in Africa; and that the trade in them is authorized by the laws and opinions of Virginia and Jamaica; that they are goods and chattels; and as such saleable and sold. That James Somerset is a negro of Africa, and long before the return of the king's writ was brought to be sold, and was sold to Charles Stewart, Esq., then in Jamaica, and has not been manumitted since; that Mr. Stewart, having occasion to transact business, came over hither with an intention to return, and brought Somerset to attend and abide with him, and to carry him back as soon as the business should be transacted. That such intention has been and still continues; and that the negro did remain till the time of his departure in the service of his master, Mr. Stewart, and quitted it without his consent; and thereupon, before the return of the king's writ, the said Charles Stewart did commit the slave on board the Ann and Mary, to save custody, to be kept till he should sail, and then to be taken with him to Jamaica, and there sold as a slave. And this is the cause why he, Captain Knowles, who was then and now is commander of the above vessel, then and now lying in the river of Thames, did the said negro, committed to his custody, detain; and on which he now renders him to the orders of the court. We pay all due attention to the opinion of Sir Philip Yorke, and Lord Chief Justice Talbot, whereby they pledged themselves to the British planters, for all the legal consequences of slaves coming to this kingdom or being baptized, recognized by Lord Hardwicke, sitting as chancellor, on the 19th of October, 1749, that trover would lie; that a notion had prevailed, if a negro came over, or became a Christian, he was emancipated, but no ground in law; that he and Lord Talbot, when Attorney and Solicitor-General, were of opinion, that no such claim for freedom was valid; that though the Statute of Tenures had abolished villains regardant to a manor, yet he did not conceive but that a man might still