would the law have restrained the courts of justice from receiving confession, except in an adverse way? If confession had been allowed as a mode of creating slavery, would the law have received the confession of one person as good evidence of slavery in another of the same blood, merely because they were descended from the same common ancestor? This last circumstance is of itself decisive; because it necessarily implied, that a slavery confessed was a slavery by descent. On a consideration of these circumstances attending the acknowledgment of villenage, I think it impossible to doubt its being merely a confession of that antiquity in the slavery, which was otherwise necessary to be proved. But if a doubt can be entertained, the opinions of the greatest lawyers may be produced to remove it, and to shew, that, in consideration of law, the person confessing was a villein by descent and in blood. In the year-book of 43 E. 3, (6), it is laid down as a general rule, "that when one claims any man as his villein, it shall be intended always that he is bis villein by reason of stock." Lord chief justice Hobart considers villenage by confession in this way, and says (c), "the confession in the court of record is not so much a creation, as it is in supposal of law a declaration of rightful villenage before, as a confession in other actions." Mr. Serjeant Rolle too, in his abridgment, when he is writing on villenage by acknowledgment, uses very strong words to the same effect. He says in one place (d), “it | seems intended that title is made that he should be a villein by descent," and in another place (c)," it seems intended that title is made by prescription, wherefore the issue should also be veins." The only instance I can find, of a Nuvo Habendo founded on a previous ackwledgment of villenage, is a strong authoity to the same purpose. In the 19th of Edward 2) the dean and chapter of London brought aw of Neifty to recover a villein, and concladed their declaration with mentioning his acknowledgment of the villenage on a former occasion, instead of producing their suit, or witnesses, as was necessary when the villenage had not been confessed: but notwithstanding the acknowledgment, the plaintiffs ailedged a seizin of the villein with esplees, or receipt of profits from him, in the usual manner. This case is another proof, that a seizin previous to the acknowledgment was the real foundation ot the lord's claim, and that the acknowledgment was merely used to estop the villein from contesting a fact which had been before sokmaly confessed. However, I do admit, that under the form of acknowledgment there was 4 possibility of collusively creating slavery. But this was not practicable without the concurrence of the person himself who was to be the sufferer by the fraud; and it was not probable, that many persons should be found so base in mind, so false to themselves, as to sell themselves and their posterity, and to renounce the common protection and benefit of the law for a bare maintenance, which, by the wise provision of the law in this country, may always be had by the most needy and distressed, on terms infinitely less ignoble and severe. It should also be remembered, that such a collusion could scarcely be wholly prevented, so long as any of the real and unmanumitted descendants from the antient villeins remained; because there would have been the same possibility of defrauding the law on the actual trial of villenage, as by a previous acknowledgment. Besides, if collusions of this sort had ever become frequent, the legislature might have prevented their effect by an extraordinary remedy. It seems, that antiently such frauds were sometimes practised; and that free persons, in order to evade the trial of actions brought against them, alledged that they were villeins to a stranger to the suit, which, on account of the great improbability that a confession so disadvantageous should be void of truth, was a plea the common law did not suffer the plaintiff to deny. But a remedy was soon applied, and the statute of (g) 37 E. 3, was made, giving to the plaintiff a liberty of contesting such an allegation of villenage. If in these times it should be endeavoured to revive domestic slavery in Eugland, by a like fraudulent confession of villenage, surely so unworthy an attempt, so gross an evasion of the law, would excite in this court the strongest disapprobation and resentment, and from parliament would receive an immediate and effectual remedy; I mean, a law declaring that villenage, as is most notoriously the fact, has been long expired for want of real objects, and therefore making void all precedent confessions of it, and probi biting the courts of justice from recording a confession of villenage in future. 3. It may be objected, that though it is not usual in the wars between Christian powers to enslave prisoners, yet that some nations, particularly the several states on the coast of Barbary, still adhere to that inhuman practice; and that in case of our being at war with them, the law of nations would justify our king in retaliating; and consequently, that the law of England has not excluded the possi bility of introducing a new slavery, as the arguments against it suppose. But this objection may be easily answered; for if the arguments against a new slavery in England are well founded, they reach the king as well as his subjects. If it has been at all times the policy of the law of England not to recognize any slavery but the antient one of the villein, which is now expired; we cannot consistently attribute to the executive power a prerogative of rendering that policy ineffectual. It is true, that the law of nations may (g) 37 E. 3, c. 16. and therefore the legislature has not extended the permission of it to England; and not hav|ing done so, how can this court be warranted to make such an extension? 5. The slavery of negroes being admitted to be lawful now in America, however questionable its first introduction there might be, it may be urged, that the lex loci ought to prevail, and that the master's property in the negro as a slave, having had a lawful commencement in America, cannot be justly varied by bringing him into England. give a right of retaliating on an enemy, who enslaves his captives in war; but then the exercise of this right may be prevented or limited by the law of any particular country. A writer of eminence (h) on the law of natious, has a passage very applicable to this subject. His words are, "If the civil law of any nation does not allow of slavery, prisoners of war who are taken by that nation cannot be made slaves." He is justified in his observation not only by the reason of the thing, but by the practice of some nations, where slavery is as unlawful as it is in England. The Dutch (1) when at war with the Algerines, Tunisians, or Tripolitans, make no scruple of retaliating on their enemies; but slavery not being lawful in their European dominions, they have usually sold their prisoners of war as slaves in Spain, where slavery is still permitted. To this example I have only to add, that I do not know an instance, in which a prerogative of having captive slaves in England has ever been assumed by the crown; and it being also the policy of our law not to admit a new slavery, there appears neither reason nor fact to suppose the existence of a royal prerogative to in-nience would ensue from regarding the lex troduce it. 4. Another objection will be, that there are English acts of parliament, which give a sanction to the slavery of negroes; and therefore that it is now lawful, whatever it might be antecedently to those statutes. The statutes in favour of this objection are the 5 Geo. 2, c. 7, (k) which makes negroes in America liable to all debts, simple-contract as well as speciality, and the statutes regulating the African trade, particularly the 32 Geo. 2, c. 31, which in the preamble_recites, that the trade to Africa is advantageous to Great Britain, and necessary for supplying its colonies with negroes. But the utmost which can be said of these statutes is, that they impliedly authorize the slavery of negroes in America; and it would be a strange thing to say, that permitting slavery there, includes a permission of slavery here. By an unhappy concurrence of circumstances, the slavery of negroes is thought to have become necessary in America; and therefore in America our legislature has permitted the slavery of negroes. But the slavery of negroes is unnecessary in England, (h) Rutherf. Inst. Nat. L. v. 2, p. 576. · (i) Quia ipsa servitus inter Christianos 'ferè exolevit, eâ quoque non utimur in hostes captos. Possumus tamen, si ita placeat ; imo ⚫utimur quandoque adversus eos, qui in nos utuntur. Quare et Belgæ quos Algerienses, Tunitanos, Tripolenses, in Oceano aut Mari Mediterraneo capiunt, solent in servitutem Hispanis vendere, nam ipsi Belgæ servos non habent, nisi in Asiâ Africâ et Americâ. Quin anno 1661, Ordines Generales Admiralio suo 'mandârunt, piratos captos in servitutem venderet. Idemque observatum est anno 1664.' Bynkershoek Quæst. Jur. Publ, lib. 1, c. 3. (k) 5 G. 2, c. 7, s. 4. I shall answer this objection by explaining the limitation, under which the lex loci ought always to be received. It is a general rule (?), that the lex loci shall not prevail, if great inconveniences will ensue from giving effect to it. Now I apprehend, that no instance can be mentioned, in which an application of the lex loci would be more inconvenient, than in the case of slavery. It must be agreed, that where the ler loci cannot have effect without introducing the thing prohibited in a degree either as great, or nearly as great, as if there was no prohibition, there the greatest inconve loci, and consequently it ought not to prevail. Indeed, by receiving it under such circumstances, the end of a prohibition would be frustrated, either entirely or in a very great degree; and so the prohibition of things the most pernicious in their tendency would become vain and fruitless. And what greater inconveniences can we imagine, than those, which would necessarily result from such an unlimited sacrifice of the municipal law to the law of a foreign country? I will now apply this general doctrine to the particular case of our own law concerning slavery. Our law prohibits the commencement of domestic slavery in England; because it disapproves of slavery, and considers its operation as dangerous and destructive to the whole community. But would not this prohibition be wholly ineffectual, if slavery could be introduced from a foreign country? In the course of time, though perhaps in a progress less rapid, would not domestic slavery become as general, and be as completely revived in England by introduction from our colonies and from foreign countries, as if it was permitted to revive by commencement here; and would not the same inconveniences follow? To prevent the revival of domestic slavery effectually, its introduction must be resisted universally, without regard to the place of its commencement; and therefore in the instance of slavery, the lex loci must yield to the municipal law. From the fact of there never yet having been any slavery in this country except the old and now expired one of villenage, it is evident, that hitherto our law bas uniformly controlled the lex loci in this respect; and so long as the same policy of ex (1) See the chapter de conflictu legum diversarum in diversis imperiis,' in Huber. Præ lect, p. 638. cluding slavery is retained by the law of Eng- into disuse (9), all their writers agree, that land, it must continue intitled to the same pre-slaves from another country become free the ference. Nor let it be thought a peculiar want of complaisance in the law of England, that disregarding the lex loci in the case of slaves, it gives immediate and entire liberty to them, when they are brought here from another country. Most of the other European states, in which slavery is discountenanced, have adopted a like policy. In Scotland domestic slavery is (m) unknown, except so far as regards the (n) coalbewers and salt-makers, whose condition, it must be confessed, bears some resemblance to slavery; because all who have once acted in either of these capacities are compellable to serve, and fixed to their respective places of employment during life. But with this single exception, there is not the least vestige of slavery; and so jealous is the Scotch law of every thing tending to slavery, that it has been held to disallow contracts of service for life, or for a very long term; as, for sixty years (o). However, no particular case has yet happened, in which it has been necessary to decide, whether a slave of another country acquires freedom on his arrival in Scotland. In 1757 this question was depending in the Court of Session in the case of a negro; but the negro happening to die during the pendency of the cause, the question was not (*) determined. But when it is considered, that in the time of sir Thomas Craig, who wrote at least 150 years ago, slavery was even then a thing unheard of in Scotland, and that there are no laws (p) to regulate slavery, one can scarce doubt what opinion the lords of session would have proBounced, if the negro's death had not preTeated a decision. In the United Provinces slavery baving fallen (m) See Crag. Jus Feud. lib. 1, dieges. 11, s. 32. Stair's Instit. b. 1, t. 2, s. 11, 12. (a) Forb. Inst. part 1, b. 2, t. 3. Macdoual. Instit. vol. 1, p. 68. (0) Macdoual. Instit. vol. 1, p. 68. But I must observe, that in the case relied on by Mr. Macdoual, the term of service was not the only material circumstance. The contract was between the masters and the crews of some fish boats; the latter binding themselves for a yearly allowance to serve in their respective boats during three times nineteen years, so that not one of them, during all that time, could remove from a particular village, or so much as from one boat to another. See Dict. Decis. tit Pactum illicitum. (*) Wall. Instit. Law of Scotl. chap. on master and servant. (P) Sir Thomas Craig, mentioning the EngFab villenage, says, Nullus est apud nos ejus usus, et inauditum nomen, nisi quod nonnulla in libro Regiæ Majestatis de nativis et ad libertatem proclamantibus proponantur; quæ * et ab Anglorum moribus sunt recepta, et nunquam in usum nostrum deducta,' Crag. Jus Feud. lib. 1, dieges. 11, s. 32. moment they enter into the Dutch territories (r). The same custom prevails in some of the neighbouring countries, particularly Brabant, and other parts of the Austrian Netherlands; and Gudelious, an eminent civilian, who was formerly professor of law at Louvain in Brabant, relates from the annals of the supreme council at Mechlin, that, in the year 1531, an application for apprehending and surrendering a fugitive slave from Spain was on this account rejected (s). In France the law is particularly explicit against regarding the lex loci in the case of domestic slavery: and though, in some of the provinces, a remnant of the antient slavery is still to be seen in the persons of the serfs or gens de main-morte,' who are attached to particular lands (t), as villeins regardant formerly were in England; yet all the writers on the law of France agree, that the moment a slave arrives there from another country he acquires liberty, not in consequence of any written law, but merely by long usage having the force of law. There are many remarkable instances in which this rule against the admission of slaves from foreign countries has had effect in France. Two are mentioned by (u) Bodin; one being the case of a foreign merchant who had purchased a slave in Spain, and afterwards carried him into France; the other being the case of a Spanish ambassador, whose slave was declared free, notwithstanding the high and independent character of the slave's owner. This latter case has been objected to by some writers (w) on the law of nations, who do not disapprove of the general principle on (9) Belga servos non habent, nisi in Asia, 'Africâ, et Americâ.' Bynkersb. Quæst. Jur. Pub. lib. 1, c. 3. Another great Dutch lawyer adds, Nec cuiquam mortalium nunc liceat sese venundare, aut aliâ ratione servitutis jure 'semel alteri addicere.' Voet Commentar. ad Pandect. lib. 1, tit. 5, s. 3. (r) 'Servitus paulatim ab usu recessit, ejusque nomen hodie apud nos exolevit; adeo quidem ut servi, qui aliunde huc adducuntur, 'simul ac imperii nostri fines intrârunt, invitis ' ipsorum dominis ad libertatem proclamare possint: id quod et aliarum Christianârum 'gentium moribus receptum est.' Groenewegen de Leg. Abrogat. in Hollandia, &c. p. 5. John Voet, in the place cited in the preceding note, expresses himself to the same effect. (s) Gudelin. de Jur. Noviss. lib. 1, c. 5, et Vinn. in Instit. lib. 1, tit. 3, p. 32, edit. Heinecc. (t) See Inst. au droit Franc. par M. Argou, ed. 1753, liv. 1, chap. 1, p. 4. (u) Bodin. de Republic. lib. 1, cap. 5, de imperio herili. See several other instances mentioned in the Negro cause in the 13th volume of the Causes Celebres. (w) Kirchner, de Legat. lib. 2, c. 1, num. 233; and after him Bynkershoek Juge Com. pet. des Ambassad, ed. par Barbeyr. c. 15, s. 3. which liberty is given to slaves brought from foreign countries, but only complain of its application to the particular case of an ambassador. But, on the other hand, Wicquefort (x) blames the states of Holland for not following the example of the French, in a case which he mentions. After the establishment of the French colonies in South America, the kings of France thought fit to deviate from the strictness of the antient French law, in respect to slavery, and in them to permit and regulate the possession of negro slaves. The first edict for this purpose is said to have been one in April 1615, and another was made in May 1685 (y), which is not confined to negroes, but regulates the general police of the French islands in America, and is known by the name of the Code Noir. But notwithstanding these edicts, if negro slaves were carried from the French American islands into France, they were intitled to the benefit of the ancient French law, and became free on their arrival in France (2). To prevent this consequence, a third edict was made in October 1716, which permits the bringing of negro slaves into France from their Americau islands. The permission is granted under various restrictions; all tending to prevent the long continuance of negroes in France, to restrain their owners from treating them as property whilst they continue in their mother country, and to prevent the importation of fugitive negroes; and with a like view, a royal declaration was made in December 1738 (a), containing an exposition of the edict of 1716, and some additional provisions. But the antient law of France in favour of slaves from another country, still has effect, if the terms of the edict of 1716, and of the declaration of 1738 are not strictly complied with; or if the negro is brought from a place, to which they do not extend. This appears from two cases adjudged since the edict of 1716. In one (b) of them, which happened in 1738, a negro bad been brought from the island of St. Domingo without observing the terms of the edict of 1716; and in the other (c), which was decided so late as in the year 1758, a slave had been brought from the East Indies, to which the (a) Wicq. Embassador, Engl. ed. p. 268. (y) Decisions Nouvelles, par M. Denisart, tit. Negres.-Denisart mentions, that the edict of 1685 is registered with the sovereign council at Domingo, but has never been registered in any of the French parliaments. (z) Nouvelles Decisions par M. Denisart, tit. Negres, s. 27. (a) M. Denisart observes, that the edict of 1716, and the declaration of 1738, do not appear to have been ever registered by the parliainent of Paris, because they are considered as contrary to the common law of the kingdom.See his Nouvelles Decisions, tit. Negres. And see above, p. 12. (b) See Causes Celebres, vol. 13, p. 492. (e) Nouvelles Decisions par M. Denisart, tit. Negres, s. 147. edict doth not extend: and in both these cases the slaves were declared to be free. Such are the examples drawn from the laws and usages of other European countries; and they fully evince, that wherever it is the policy to discountenance slavery, a disregard of the ler loci, in the case of slavery, is as well justified by general practice, as it is really founded on necessity. Nor is the justice of such proceeding less evident; for how can it be unjust to devest the master's property in his slave, when he is carried into a country, in which, for the wisest and most humane reasons, such property is known to be prohibited, and consequently cannot be lawfully introduced? 6. It may be contended, that though the law of England will not receive the negro as a slave, yet it may suspend the severe qualities of the slavery whilst the negro is in England, and preserve the master's right over him in the relation of a servant, either by presuming a contract for that purpose, or, without the aid of such a refinement, by compulsion of law grounded on the condition of slavery in which the negro was previous to his arrival here. But insuperable difficulties occur against modifying and qualifying the slavery by this artificial refinement. In the present case, at all events, such a modification cannot be allowable; because, in the return, the master claims the benefit of the relation between him and the negro in the full extent of the original slavery. But for the sake of shewing the futility of the argument of modification, and in order to prevent a future attempt by the masters of negroes to avail themselves of it, I will try its force. As to the presuming a contract of service against the negro, I ask at what time is its commencement to be supposed? If the time was before the negro's arrival in England, it was made when he was in a state of slavery, and consequently without the power of contracting. If the time presumed was subsequent, the presumption must begin the moment of the negro's arrival here, and consequently be founded on the mere fact of that arrival, and the consequential enfranchisement by operation of law. But is not a slavery, determined against the consent of the master, a strange foundation for presuming a contract between him and the slave? For a moment, however, I will allow the reasonableness of presuming such a contract, or I will suppose it to be reduced into writing; but then I ask, what are the terms of this contract? To answer the master's purpose, it must be a contract to serve the master here; and when he leaves this country to return with him into America, where the slavery will again attach upon the negro. In plain terms, it is a contract to go into slavery whenever the master's occasions shall require. Will the law of England disallow the introduction of slavery, and therefore emancipate the negro from it; and yet give effect to a contract founded solely upon slavery, in slavery ending? Is it possible, that the law of England can be so insulting to the negro, so inconsistent with itself? The argument of modification, independently of contract, is equally delusive.-There is no known rule by which the Court can guide itself in a partial reception of slavery. Beides, if the law of England would receive the slavery of the negro in any way, there can be no reason why it should not be admitted in the same degree as the slavery of the villein; but the argument of modification necessarily supposes the contrary; because, if the slavery of the negro was received in the same extent, then it would not be necessary to have recourse to a qualification. There is also one other reason still more repugnant to the idea of modifying the slavery. If the law of England would modify the slavery, it would certainly take away its most exceptionable qualities, and leave those which are least oppressive. But the modification required will be insufficient for the master's purpose, unless the law leaves behind a quality the most exceptionable, odious and oppressive; an arbitrary power of reviving the slavery in its full extent, by removal of the negro to a place, in which the slavery will again attach upon him with all its original severity (d). From this examination of the several objections in favour of slavery in England, I think myself well warranted to observe, that instead of being weakened, the arguments against slavery in England have derived an additional force. The result is, not merely that Begroes become free on being brought into this country, but that the law of England confers the gift of liberty entire and unincumbered; not in name only, but really and substantially; and consequently that Mr. Steuart cannot have the least right over Sommersett the negro, either in the open character of a slave, or in the disguised one of an ordinary servant. (2.) In the outset of the argument I made a second question on Mr. Steuart's authority to enforce his right, if he has any, by transporting the negro out of England. Few words will be necessary on this point, which my duty as (d) This answer to the argument of modiScation, includes an answer to the supposition, that an action of trespass per quod servitium ⚫amisit,' will lie for loss of a negro's service. I am persuaded, that the case, in which that remedy was loosely suggested, was one in which the question was about a negro being eut of England. I mean the case of Smith and Gould, 2 Salk. 667. Another writ, hinted at in the same case, is the writ of trespass, 'quare captivum suum cepit;' which is not in the least applicable to the negro, or any other slave. It supposes the plaintiff to have had one of the krug's enemies in his custody as a prisoner of war, and to have had a right of detaining him payment of a ransom. See Reg. Br. 102, b. and 2 Salk: 667. VOL. XX. counsel for the negro requires me to make, in order to give him every possible chance of a discharge from his confinement, and not from any doubt of success on the question of slavery. If in England the negro continues a slave to Mr. Steuart, he must be content to have the negro subject to those limitations which the laws of villenage imposed on the lord in the enjoyment of his property in the villein; there being no other laws to regulate slavery in this country. But even those laws did not permit that high act of dominion which Mr. Steuart has exercised; for they restrained the lord from forcing the villein out of England. The law, by which the lord's power over his villein was thus limited, has reached the present times. It is a law (e) made in the time of the first William, and the words of it are, ‘prohibemus ut nullus vendat hominem extra pa• triam' (ƒ). If Mr. Steuart had claimed the negro as a servant by contract, and in his return to the Habeas Corpus had stated a written agreement to leave England as Mr. Steuart should require, signed by the negro, and made after his arrival in England, when he had a capacity of contracting, it might then have been a question, whether such a contract in writing would have warranted Mr. Steuart in compelling the performance of it, by forcibly transporting the negro out of this country? I am myself satis fied, that no contract, however solemnly entered into, would have justified such violence. It is contrary to the genius of the English law, to allow any enforcement of agreements or contracts, by any other compulsion, than that from our courts of justice. The exercise of such a power is not lawful in cases of agreements for property; much less ought it to be so for enforcing agreements against the person. Besides, is it reasonable to suppose, that the law of England would permit that against the servant by contract, which is de nied against the slave? Nor are great authorities wanting to acquit the law of England of such an inconsistency, and to shew, that a contract will not warrant a compulsion by imprisonment, and consequently much less by transporting the party out of this kingdom. Lord Hobart, whose extraordinary learning, judgment, and abilities, have always ranked his opinion amongst the highest authorities of law, expressly says (g), that the body of a freeman cannot be made subject to distress or imprisonment by contract, but only by judgment. There is, however, one case, in which it is said that the performance of a service to be dune abroad, may be compelled without the (e) Wilk. Leg. Saxon. p. 229, et cap. 65, Leg. Gulielm. 1. (f) This law furnishes one more argument against slavery imported from a foreign country. If the law of England did not disallow the admission of such a slavery, would it restrain the master from taking his slave out of the kingdom? (g) Hob. 61. F |