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376 MAN8FIELD'B Inconsistency.
rale for the recognition of personal laws which was stated in the second chapter.1 That is to say, while the domicil of the slave and his master remained unchanged, every tribunal representing that source of law, in any part of the empire, was bound to recognize within its particular forum the relation, created by the colonial law, as jural and legal; independently of its connection with the law of nations—universal jurisprudence—and independently of the rule of comity, which properly obtains only as between independent states.* It was, so to speak, stultifying the jurisprudence of England, for a judge adopting Lord Mansfield's theory of the public law of the empire, to declare that the relation between the master and slave was unlawful in England, because contrary to natural justice, and at the same time to admit that it was a legal relation in the colony.* For, in the colony, that relation had been established by a judicial application of natural reason by tribunals representing there, on his theory, the same juridical sovereign whom the King's Bench represented in England. Lord Mansfield in this decision ignored the historical origin of negro slavery, when he declared it to rest upon statutes having a definite territorial extent in and for the plantations and the coast of Africa; though the essential inconsistencies in his " opinion " would not thereby have been removed.'
1 Ante, p. 100, and note*.
* Comr-. the argument of Tribaud, for the master, in the French case, 13 Can. Cel The criticisms of the English editors, in 20 Howell's St. Tr., p. 15, note, upon this argument, are unfair. It is fully as logical an exposition of that side of the general question as is Hargrave's upon the other.
* Very similar is Lord Stowell's observation, 2 Hagg. Adro. R, pp. 114, 127. Montesquieu, Lettres Persanes, Lettre 76. "II y a long temps que les princes Chretiens iifl'i nnchircnt tons les esclaves de leurs etats; parceque, disoient ils, le Cbristiauisme rend toux les hommes egaux. II est vrai que cet acte de religion leur etoit tres utile; ils abaissoient par la les seigneurs, de la puissance desquels Us reliroient le has peuple. Ils ont ensuite fait des conquetes dans les pays oil Us ont vu qu'il leur etoit advantngeux d'avoir des esclaves, ils ont permis d'en acheter et d'en vendre, oubliant ce principe de religion qui les touchoit tant. Que veux-tu que je te dire? Verite dans un temps, erreur dans au autre."
During the American war, the slaves in Virginia and Carolina were regarded by the English as property and objects of booty. It was estimated that not less than thirty thousand were carried off from Virginia. The policy adopted by Dunmore at the beginning of the war, was to arm the slaves against their masters, but this was not persevered in. 3 Hildr., 356.
4 Mr. Sumner, in a speech in the Senate of the United States, August, 26, 1852, said that Lord Mansfield pronounced this decree "with discreditable reluctance, sullying his great judicial name, but in trembling obedience to the genius of the British constitution." This is hardly grateful. Even if the decision was good law, Lord Mansfield was unable to give good judicial reasons for it, and might well have been reluctant openly to assume the province of legislation, as, from his opinion and observations during the argument, he evidently thought himself obliged to do. It seems likely that his " trembling obedience " was rendered more to the then prevailing current of public opinion, (see Dunning's remark, Lofft's R., pp. 9, 10,) than to a sense of judicial responsibility.
STATEMENT OF THE DOCTRINE. 377 § 312. According to the principles herein before assumed, the true statement of the international law involved in Somerset's case1 is this :—The law of nations—universal jurisprudence—as then recognized by European states, did not support his bond condition, whether it was chattel slavery or the bondage of a legal person. This condition had been created by the local law, jus proprium, of the colony in which he had been a domiciled inhabitant ; whether he had there been held as a chattel, or as a person bound to service or labor, was immaterial. The law of the foreign jurisdiction—the colony—was to be taken to be jural—a law of right—in and for the colony: its consequences there were legal. But the law of England (except as comprehending the law of nations—universal jurisprudence—if it then supported the slavery of heathen negroes') attributed the right of personal liberty to all natural persons within its territorial jurisdiction, and enforced no dominion of one private person over another, except in the relations of the family, relations arising out of primitive and remedial law, and in some local districts, certain relations founded on particular customary law. No relation of this kind existed between Somerset and his master. The law which attributed the so-called "personal rights" to the inhabitants of English birth (except as modified by these relations) had a universal personal extent in England, which prevented the operation of the principle of
That is a doubtful compliment, by Best, Ch. J., in Forbes v. Cochran, 2 B. & C, 470, saying that the judges (in Somerset's case) " were above the age in which they lived," &c.
Lord Mansfield, encouraging a general officer who was doubting his own competency for the judicial duties incident to the office of governor In a W. I. colony to which he had been appointed, told him it would be easy to decide justly—" but never give your reasons, for your judgment will probably be right, but your reasons will certainly be wrong." Campbell's Lives of the Chief Justices, vol. II., p. 572.
1 The law applying as municipal (internal) law has been stated, ante, § 189.
* The name James Somerset makes it probable that he was a baptized or nominally Christian negro, though the return to the writ states that he was a native African.
378 OTHER VIEWS OF SOMERSET'S CASE.
comity, since there was no statute or international custom by which these general principles could be limited.1
§ 313. This statement of the operation of international private law in this case, is based upon the assumption that negroes could not be at that time held in slavery under the internal law; that is, that no negro domiciled in England could there be held in slavery. It was, indeed, Lord Mansfield's decision of the case which finally established this doctrine in the internal law, and thereby liberated, it has been supposed, a large number of negroes retained as slaves in England. But, according to the review of the cases which was given in the fourth chapter, there was no principle on which a domiciled negro could be thus held in involuntary servitude.
In the claim of ownership in England, whether under the internal orthe international private law, the principal reliance seems to have been on an alleged general custom; meaning the then customary popular recognition in England of the relation of master and slave. It was upon this ground that Lord Stowell objected to this decision, saying that, from the time of the establishment of slavery in the colonies, negroes had been bought and sold in London and had been sent back thence to the plantations.
§ 314. But, in stating that during the two and twenty years previous " decisions" of great authority had been delivered supporting that "system" (i. e., that practice) in England, Lord Stowell certainly asserted more than judicial history warranted. It has herein throughout been supposed that there was law to
1 Burgc, 1 Comm., p. 741, says, respecting Somerset's and the Scotch case: * The principle established by these decisions rests on grounds which are indisputable. A status which, like slavery, was the creature of municipal regulation alone, could have no existence in a country where that regulation not only had no force, but was at variance with the law of that country." By "municipal regulation " the author here intends positive legislative enactment, and illustrates the common misapprehension of the legal foundation of slavery. It appears to have been a very doubtful question whether, at this time, slavery was at variance with the law of England and Scotland.
Mr. Hargrave's argument with copious notes of various authorities bearing on the question, was published at length in vol. 11. of his State Trials, and afterwards in 20 Howell's State Trials. In this form it has justly been referred to as an impar;ial treatise. It is, however, liable to the same criticism with all the English arguments and decisions in these cases; that is, that no definite principles of international jurisprudence are enunciated; and the undetermined use of the terms positive law, natural law, municipal law, law of nations, §-c, deprives it of proper argumentative consistency. Compare ante, p. 109 note.'
THE DECISION JUSTIFIED. 379
maintain in England the right of property, as of chattels, in a heathen negro slave,1 but that after conversion there was no law having the character of universal jurisprudence and no jus proprium (unless this same practice) to continue that right. After such conversion the courts would have been called to decide the same question, in and for England, which, it has been supposed, the colonial courts were once called to decide for their several jurisdictions ; i. e., what was the status which existed after the conversion.3 Now it seems that, before this case, the weight of judicial decision had been that negroes were not chattels in England; and though there was a prevalent juristical opinion that the relation of master and servant continued ;3 that the obligation of the servant was for life and might be assigned as property, it was nevertheless a mooted question and not received in the courts as a settled point; some judges having positively denied the existence of any such relation. And from all that appears, this may have been the first occasion 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.
§ 315. The practice which was relied on was then the holding in servitude legal persons, and so to be distinguished from chattel slavery under the law of nations, which had been recognized in the custom of merchants and the common law of England. For that customary law maintained the right of the master only as a right to a chattel and while the negro was heathen. Now a change of religious belief, unless marked by the ceremony of public baptism, could not have been matter of public notoriety, and there is reason to suppose that for this reason the administration of baptism was often withheld when
1 Blackstone, 1 Comtn., 425, denied that any discrimination between persons, in respect to personal rights, according to their faith, could be recognized in English
* Ante, §§ 178, 204.
* Molloy, De Jure Maritimo, B. 3, c. 1, 88. See Blackstone's contradictory statement, 1 Comm., 424. Chamberlayne v. Harvey, ante, p. 182,—" he is no other than a slavish servant."
380 THE DECISION JUSTIFIED.
it would have been otherwise proper.1 And the majority of negroes imported into England were probably not distinguishable as either Christian or heathen. A large proportion may be supposed to have voluntarily * continued in the service of their former owners, and, except in the sales which may have taken place, the enforced character of their service had no public recognition.3 The sales were probably confined to London and the larger seaport towns. To say nothing then of the want of judicial recognitions of such a servitude, and nothing of judicial dicta against its existence, the practice of holding in bondage negroes, who were not known in law as chattels, had not that general publicity, definite character and general recognition which must characterize custom if it is to be held for common
Negro slaves could hardly have been brought into England before the middle of the seventeenth century. The practice of detaining christianized negroes in servitude there had not then the characteristic requisites of either general or particular custom.5
There are, too, some cases in which judicial tribunals may
1 Observations of Lord Mansfield, Lofffs R, p. 8.
* Even though they received no wages, and therefore they might not be able to recover any thing for their service on a quantum meruit; see Alfred v. Marquis of Kittjames, 3 Espinasse, p. 3. (Easter, 39 Geo. III.)
* That negroes were sometimes sold in London, in corpore, appears from advertisements in the papers of that day. (Senator Sumner's Speech, Senate, Aug. 26, 1852.) The sales, at London, of negroes then in the Plantations on the estates to which they belonged, which were probably of frequent occurrence, were not instances of the custom which is now under consideration. Such sales were made there after this decision, as sales of negroes, being in foreign slaveholding territories, may still be made
'See ante, §31 and notes. Lindley's Thibaut, Appendix, xiii-xvi. The custom, so far as it existed, may also in part be ascribed to ignorance of their rights on the part of the slaves. This could not perhaps have been considered under the stern rule of English law. The Roman law admitted the plea of ignorance of law in certain cases. "It was a valid plea to minors, women, soldiers, (propter rusticitatem,) to oil v ho were beyond the reach of legal advice and information."—J. G. Phillimore's Principles, fa., p. 97.
* " Customs which are opposed to written law (correctorise, derogatorise) are held by the Roman jurists to be invalid, unless they have been specially confirmed by the supreme power of the state, or have existed immemorially: and it is immaterial whether they consist in mere non-observance of the written law (desuetudo) or in the observance of new principles opposed to such law, (consuetudines abrogatorise;) and it is also immaterial whether the customs have or have not been confirmed by judicial decisions.* Thibaut, Lindley's Transl. § 17. But the author notes a great variety of opinion on these points. It might be said that in the great charters, the Bill of Rights, the Habeas Corpus Act, &<;., the law attributing personal rights to the English subject, in England, had become written or statute law.—1 BL Couim. 127, 128.