Court Transcript of an Anti-Slavery Case, Fredericton NB, 1800 : a machine-readable transcription.

Author: Chipman, Ward 1753-1824

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Court Transcript of an Anti-Slavery Case, Fredericton NB, 1800.

Author: Ward Chipman

82 pages

Beaverbrook Collection

Call number BC MS

Prepared for the University of New Brunswick Libraries Electronic Text Centre.

Verification has been made against the manuscript version. Original spelling has been retained and items added are assumed to be interlinear unless otherwise noted. Items deleted are assumed to be scored through unless otherwise noted. All manuscript corrections are in the hand of the author, Ward Chipman.

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EnglishNon-fiction; prose

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Supreme Court
New Brunswic
Hilary Term

1800. 40. Geo. 3. --
The Case of
Nancy a black woman, claimed
as a Slave; upon Habeas Corpus against
the Master --

For the writ and return see box 42.

1. What are the grounds upon which the right

of Slavery is supported, as a general question?

2. The utility of it's introduction, if this were
a matter in the discretion of the Court.

3. How far Slavery has at any time been
tolerated in
England ?

4. What is the Law of
England at this day
upon the Subject?

5. What is the Condition of Slavery in the Colonies where it is tolerated &
in what manner & how far has it been
recognized by Acts of
Parliament ?

6. What is the Law of this
Provincerespecting Slavery?

1st Point &

Montesq: Sp. L. B. 15. C. 1

Slavery, properly so called, is the establishment
of a right which gives to one man such a power
over another as renders him absolute master of his
life and fortune.


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Lofft's (?)up?

2 .
Another definition of Slavery is -- "a service for
life for bare necessaries" -- "Harsh and terrible to
human nature, as even such a condition is, slavery
is very insufficiently described by these circumstances
-- it includes not the power of the master
over the slave's person, property and limbs, life only
excepted; it includes not the right over all acquirements of the slave's labour; nor includes
the alienation of the unhappy object from his
original master to whatever absolute low, interest
caprice or malice may choose to transfer him,
it includes not the discernable property from
father to Son; and in like manner continually
of the Slave and all his descendants". Yet such
a state of servitude or slavery as is contended for, by
the return to the present writ, involves most
if not all these cruel and inhuman consequences.

B. 15. C. 2.

very forcibly observes that one
would never have imagined that slavery should
owe its birth to pity, and that this should have
been excited three different ways.

1. The law of nations, to prevent prisoners being
put to death has allowed them to be made

2. The civil law of the Romans empowered debtors
who were subject to be ill used by their Creditors,
to sell themselves

3. The law of Nature requires that Children
whom a father in a State of servitude, is no
longer able to maintain, should be reduced to the
same state as the father.


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Bl. Com. 423 .

Or as it is expressed in the Institutes
Servi aut fiunt, aut nascumtur; fiunt jure
gentium, aut jure civili: nascuntur ex ancillis nostris.

These reasons
after him, nearly in the same words,
observe, are all of them built upon false foundations. -- It is an untrue position when taken
generally that by the law of nature or nations,
a man may kill his enemy, he has only a
right to kill him in particular cases; in
cases of absolute necessity for self --defence and
it is plain this absolute necessity did not subsist
since the victor did not actually kill him
but made him Prisoner. War is itself justifiable
only on principles of self-- preservation; and
therefore it gives no other right over Prisoners
but merely to disable them from doing harm
to us, by confining their persons: much less can
it give a right to kill, torture, abuse, plunder
or even to enslave an enemy when the war is
over. Since therefore the right of making
Slaves by captivity depends on a supposed right
of Slaughter, that foundation failing, the
consequence drawn from it must fail likewise.

From this origin alone Slavery as known
England seems to have been derived
"The word Slave"
Dr. Johnson in his Dictionary
tells us, "is said to have its original from the
Slavi or Sclavonians subdued and sold by the

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Venetians" and
in his Geographical
observes -- "The Sclavonians formerly
gave so much work to the Roman Arms, that
it is thought the word Slave took its original
from them, on account of the great numbers
of them who were carried into bondage so late
as the Reign of

Salk. 667


And Villenage in
England arose from Captivity
Villains were originally Captives at the Conquest
or troubles before

2 . With regard to the second ground -- that Slavery

Montesq: 6 .15 . C. 2

1 .
Bl.Com. 424

may begin jure civili, by one man's selling
himself to another: "Neither is this true --
Sale implies a price, now, when a person sells
himself, his whole substance immediately devolves
to his master;-- the Master therefore in that
case gives nothing and the Slave receives nothing.
You will say he has a peculium . But this peculium goes along with his person.-- Is it not
lawful for a man to kill himself, because he
robs his Country of his person, for the same reason
he is not allowed to barter his freedom.-- The
freedom of every citizen constitutes a part of
the public liberty.-- To sell one's freedom,
in the sense of modern slavery, is so repugnant to all reason as can scarcely be supposed
in any man. If liberty may be rated with
respect to the buyer, it is beyond all price to
the Seller.-- The civil law which authorizes a

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a division of goods among men, cannot be thought
to rank among such goods, a part of the men
who were to make this division". -- and it is

Salk. 667 .

laid down in our books --"That Men may be
the owners and cannot therefore be the subject
of property". --"The same law"
Montesquieu goes
on to observe, "annuls all iniquitous contracts: surely
then it affords redress in a contract where the
grievance is most enormous".

"If it is only meant"says Judge
Judge Sir William Blackstone"of
contracts to serve or work for another, it is very
just, but when applied to strict slavery it is
impossible. -- What equivalent can be given for
life and liberty both of which in absolute slavery
are held to be in the masters disposal. --his
property also they very price he seems to receive
devolves ipso facto to his master, the instant
he becomes his Slave. Nothing is given or
received -- of what validity then can a sale
be which destroys the very principles upon
which all sales are founded?"

3. The third way, is birth, which falls with the two

former, for if a man could not sell himself
much less could he sell an unborn infant. If
a Prisoner of war is not to be reduced to slavery
much less are his Children.

Montesq: A.

The lawfulness of putting a malefactor to death
arises from this circumstance; the law by which he
is punished, was made for his security. A Murderer
for instance, has enjoyed the benefit of the very

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law which condemns him; it has been a continual
protection to him; he cannot therefore object against
it. But it is not so with the Slave.-- The Law
of slavery can never be beneficial to him -- it
is in all cases against him, without ever being
for his advantage: and therefore this law is contrary to the fundamental principles of all societies

"If it be pretended that it has been beneficial
to him, as his Master has provided for his subsistence slavery at this rate, should be limited to
those who are incapable of earning their livelihood.-- But who will take up with such
Slaves? -- As to Infants -- nature who has
supplied their mothers with milk has provided
for their sustenance; and the remainder of their
childhood approaches so near the age in which
they are most capable of being of service, that
he who supports them cannot be said to give
them an equivalent, which can entitle him
to be their master".--

"Nor is slavery less opposite to the civil law
than to that of nature. What civil law can
restrain a slave from running away, since he
is not a member of society, and consequently
has no interest in any civil institutions"?

But if it should be contended that the Negroes
upon the Coast of
Guinea , from whence Slaves are
imported into
America , are of dispositions
so fierce and barbarous that they would put their
prisoners to death, did they not from their intercourse with the nations of
Europe derive great

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advantages from sparing the lives of their enemies,
and that on this account their wars are rendered
less bloody; it cannot at the same time be

John Millar
258 .
Professor of Law
in the
of Glasgow

doubted that they have been rendered more frequent -- From the great demand for slaves
to supply the
European market, they have the
same motives to seize the person of their
neighbours, which may excite the Inhabitants of other Countries to rob one another
of their property

Molloy de jure
Marit: b. 3 . c . & 6 .

"Slavery in Christendom says
is now
become obsolete and in these latter ages the
minds of Princes and States have as it were
universally agreed to esteem the words, Slaves
Bondsman or Villain barbarous and not to
be used, and that such as are taken in war
between Christian Princes should not become
Servants, nor be sold or forced to work or otherwise subjected to such servile things, but remain till an exchange of Prisoners happen
or a ransom paid.

Thus the several origins of slavery not only
appear to be built upon false foundations, but to be
exploded among the civilized nations of the
world at this day.


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B. 15. C. 3

Montesquieu very justly considers as an equally
well founded origin of Slavery with any of the
foregoing --"The contempt of one nation for another founded on a difference in Customs", and
tells us that
Lopez de Gamar a Spanish writer
after relating that the Spaniards
found near
St. Martha , several baskets full of Crabs
snails, grasshoppers and locusts, which proved to be
the ordinary provision of the natives, owns that
this with their smoking and trimming their
beards in a different manner gave rise to
the law by which the Americans became Slaves
to the Spaniards. -- to this account the Baron
subjoins the following beautiful remark --
Knowledge humanizes mankind, and reason
inclines to mildness, but prejudices eradicate
every tender disposition.

The same enlightened Author adds another origin
of the right of Slavery in his opinion as tenable as those he has refuted -- "I would", he proceeds, "as soon say that religion gives it's Profession
a right to enslave those who dissent from it,
in order to render it's propagation more easy:
This was the notion that encouraged the Savages...
America in their iniquity. Under the influence
of this idea, they founded their right of enslaving
so many nations: for these robbers, who would
absolutely be both robbers and Christians were
superlatively devout".


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"Louis XIII was extremely uneasy at a law , by which
all the Negroes of his Colonies were to be made Slaves
but it being strongly urged to him as the readiest means for their conversion, he acquiesced
without further scruple".

To such miserable pretexts have the advocates of slavery at different times been reduced to justify a measure
so subversive of the natural and inalienable rights
of Mankind.

B. 15 . C. 5 .

goes on in an incomparable vein
of satire to ridicule the grounds upon which the
Slavery of Negroes is justified

"Were I", says he, "to vindicate our right to make
Slaves of the Negroes, these should be my arguments
Europeans having extirpated the
Americans, were obliged to make Slaves of the
Africans for clearing such vast tracts of land".
"Sugar would be too dear, if the plants which
produce it were cultivated by any other than Slaves" +

+ What is here ludicrously suggested,
seems to have been
seriously adopted
by the
British legislature as a justifiable ground of Slavery
in the
Colonies; ...
post.... 6 Preamble
to Stat: 23.5.2.c.31 .

(1750) --

I believe wrote after
this, if so, and he had
seen this stat: he might
have intended
to satirize it

"These Creatures are all over black, and with
such a flat nose that they can scarcely be

"It is hardly to be believed that God
who is a wise being, should place a soul,especially a good soul, in such a black ugly

"The Negroes prefer a glass necklace
to that Gold which polite nations so highly

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value, can there be a greater proof of their wanting common sense?"

"It is impossible for us to suppose these
creatures to be Men, because allowing them to
be men, a suspicion would follow that we
ourselves are not Christians".

"Weak minds exaggerate too much the
wrong done to the
Africans. For were the case
as they state it, would the European Powers,
who make so many needless conventions among
themselves, have failed to enter into a general
one, in behalf of humanity and compassion?"

These with other writings have at length so
much exposed the iniquity of this traffic in
human flesh, that the greatest exertions are
making in the civilized world and particularly
Great Britain to effect its utter abolition
and I trust that we shall not in this
whose pride it is to copy the example of the
Parent State, introduce into our political system
a practice so derogatory to every principle of law
and justice.

Millar on
Ranks. 256

It surely will not be pretended that the
establishment of Slavery among the nations of
Antiquity -- among the
Egyptians , the
the Jews, the
Babylonians the
Persians the

Greeks and the
Romans, will render the Practice
more justifiable, as well might we avail ourselves
of their example, to introduce and vindicate
all the other enormities in their civil and
religious institutions.


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From the example of the Jews we might as
well with slavery introduce the severity of
their law in the treatment of their Slaves, as
vindicate the establishment of Slavery. -- By the
law of Moses --"If a man struck his servant so that


"he died under his hand, he was to be punished; but
"if he survived a day or two, no punishment ensued
"because he was his money". Strange, says Mon
tesquieu, that a civil institution should thus
relax the law of nature."


But among the Romans during the Commonwealth
and afterwards among the Emperors, no free
Citizen was allowed by Contract to become the Slave
of another, for the law did not support those
unequal contracts. And therefore a man
could not be obliged to fulfill a bargain
by which he had surrendered all his rights
to a Master, without any return but at the
will of his Master -- Though if a man fraudulently sold or suffered himself to be sold
in order to share in the price, he then became
the Slave of the Purchaser who was defrauded

on Ranks cites Heineccius syntagma
Antiquitatum Romanum.


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II. But supposing this were a matter in the discretion of the
Court , to adopt or reject, which
is a point I shall presently speak to, it may not
be amiss to inquire into the utility of the introduction of the
establishment of slavery in this
Province of New Brunswick.

John Millar p.265 .

In computing the price of the labour which is performed by those who live in a state of servitude,
not only the charge of their maintenance, but
also the expense of their first acquisition, together
with all the hazard to which their life exposed
must necessarily be taken into the account.

When these circumstances are duly considered it will be found that the work of a Slave,
who receives nothing but a bare subsistence, is
really dearer than that of a free man, to
whom constant wages are given in proportion
to his industry"

"A Slave who receives no wages in return
for his labour, can never be supposed to exert
much vigour or activity in the exercise of any
employment. He obtains a livelihood at any
rate, and by his utmost assiduity he is able
to procure no more, as he works merely in
consequence of the terror in which he is held
it may be imagined that he will be idle as
often as he can with impunity".

Ib. 300.

"In whatever light we regard the institution of
slavery it appears equally inconvenient and
pernicious. No conclusion seems more certain

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than this, that men will commonly exert
more activity when they work for their own
benefit, than when they are compelled to labour
for the benefit merely of another -- The introduction of personal liberty has therefore an
infallible tendency to render the Inhabitants
of a Country more industrious".

"But Slavery is not more hurtful to the
industry than to the good morals of a people.
To cast a man out from the Privileges of society, and to mark his condition with
infamy, is to deprive him of the most powerful incitements to virtue, and very often to
render him worthy of that contempt with which
he is treated.-- What affects on the other a
painful and humbling comparison, what mortifying reflections does this afford to those wretches who are reduced into a state of bondage! Reflections that cannot fail to sour their temper,
to inspire them with malevolent dispositions
and to produce an untoward and stubborn
behaviour. A more severe discipline is thus
rendered necessary in order to conquer their
obstinacy and oblige them to labour in their
employments -- it becomes requisite that
they should be strictly watched & kept in the
utmost subjection in order to prevent those

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those desperate attempts to which they are frequently instigated in revenge of their sufferings"

-- What effects on the other hand, may
we expect that this debasement of the servants will produce on the temper & disposition of the Master? in how many different
ways is it possible to abuse that absolute power with which he is invested, and what vicious habits may be contracted by a train of such
abuses, unrestrained by the laws and palliated by
the influence of example".

Lofft. 2.

These effects are thus summed up by
Mr. Hargrave

in his Argument in the case of
Somerset --

"Corruption of manners in the Master, from
the entire subjection of the slaves he possesses
to his sole will; from whence spring forth luxury
pride, cruelty, with the infinite enormities appertaining to their train; the danger to the
master from the revenge of his much injured
and unredressed dependant; debasement of the
mind of his Slave for want of means and
motives of improvement; and peril to the constitution under which the Slave cannot but
suffer and which he will naturally endeavour
to subvert, as the only means of retrieving
comfort and Security to himself": -- "The humanity
of modern times" he adds, "has much mitigated

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this extreme rigour of slavery -- shall an attempt
to introduce perpetual servitude, to this Island,
and I will in my turn
on this occasion, say, to this Province, hope
for countenance? Will not all the other
mischiefs of mere servitude revive, if once
the idea of absolute property under the immediate sanction of the laws, extend itself to those
who may be claimed as Slaves in this
which, I must contend in this instance, partakes
of the nature of the soil of
England , whose
air is deemed too pure for Slaves to breathe in

Montesq: b . 15 . c . 8

Millar. 310.

Were it necessary on this occasion it might
be easily shown, that there never was any such
necessity as is pretended for the introduction of
Slavery into any part of
America , or the
Indies . -- Be that however as it may,
none of the reasons which have operated to establish it there, exist at all in this
and therefore its introduction here Should be resisted
upon the same grounds that it has been so
successfully opposed in the
Parent State.

Obsta principius

Millar 266 .

The practice of Slavery being once introduced, it
will with us as in other Countries be afterwards
"regarded with that blind prepossession which
is commonly acquired in favour of established
usages, the inconveniences of it will be overlooked, and every innovation be considered as a
dangerous measure. -- We find accordingly that
this institution, however inconsistent with the

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right of humanity, however pernicious & contrary
to the true interest of the Master, has generally remained in those Countries where it was once established, and has been handed down from one
generation to another, during all the Successive
improvements of society in knowledge arts and

p. 312 .

"It affords a curious spectacle, says
Mr. Millar
, to observe that
the Inhabitants of the British Plantations in

America , who talk in so high a strain of political liberty, and who consider the privilege of imposing their own taxes as one of the unalienable
rights of mankind, should make no Scruple
of reducing a great proportion of the Inhabitants
into circumstances by which they are not only
deprived of property, but almost of every
right whatsoever. -- Fortune perhaps never
produced a situation more calculated to ridicule a grave and even a liberal hypothesis,
or to show how little the conduct of men
is at the bottom directed by any philosophical principles".


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I come now under the third point of my argument, to inquire,

III . How far Slavery has at any time been
tolerated in
England .

And here it is to be observed, that strict absolute
Slavery in the sense of the laws of old
Rome or
Barbary , or as it was practiced established among the
German Nations who invaded the

Roman Provinces , never did exist in
England .

Millar . p . 274

"When these latter Nations invaded the
Empire and settled in the different Provinces, they
were enabled by their repeated Victories to procure an immense number of Captives, whom
they reduced into servitude, and by whose assistance they occupied landed estates of proportional extent. From the manners which
prevail universally among rude people their
Domestic business was usually performed by the
members of each family and their Slaves under
the absolute dominion of the Master were occupied in the various branches of husbandry which
he had occasion to exercise. As the numerous persons
servants belonging to a single person
could not conveniently be maintained in his
house, so the nature of their employment
required that they should be sent to a distance
and have a fixed residence upon those parts of the
estate which they were obliged to cultivate.

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Separate habitations were therefore assigned
them, and particular farms were committed
to the care of different individuals, who frequently residing in the neighbourhood of
one another and forming small villages or
hamlets, received the appellation of Villa
ni, Villains
, or Villagers".

B.1 .C.6.


tells us -- Fiunt, etiam servi
liberi homines captivitate de jure gentium

We read in
that "their were under
the Saxon Government, a sort of people in a
condition of downright servitude, used and employed in the most servile works and belonging
both they, their children and effects to the
lord of the Soil, like the rest of the Cattle
or stock upon it. These seem to have been
those who held what was called the Folk:
:land, from which they were removable at the
Lord's pleasure. On the arrival of the Normans
here it seems not improbable, that they who
were strangers to any other than a feudal
State, might give some sparks of enfranchisement to such wretched persons as
fell to their share, by admitting them as
well as others, to the oath of fealty; which
conferred a right of protection & raised the
Tenant to a kind of estate superior to

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downright Slavery, but inferior to every other
condition. -- This they called Villenage and
the Tenants Villeins, either from the word vilis
or else as
Sir Edward Coke
tells us a Villa
because they lived chiefly in villages.

These Villeins belonging principally to Lords
of Manors, were either Villeins regardant,that
is annexed to the Manor or Land; or else
they were in gross or at large, that is, annexed
to the Person of the Lord, and transferrable
by deed from one owner to another".

Lofft .3.

Mr. Hargrave's



"These Villeins were originally Captives at
the Conquest or troubles before". and it is
laid down by the
Court in the case of
Gould that "Villenage arose from captivity"

Lofft. 3

5. Mod. 189


Harvey --

Bl.Com. 94

5. Mod. 190.

But Villenage could commence no where
but in
England , it was necessary to have prescription for it. -- And the lord had not Such
an absolute property over his Slave but that
in some cases, that very Slave might have
an action against his lord, as an appeal for the
death of his father, so when the lord was indebted
to the Testator of his Villein he might bring an
action against him as Executor. -- The Lord
had no power over his life, nor could he
send a villein in gross out of the Kingdom,
so careful was the law of the liberties of Men
under its protection. --


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Bl.Com. 93

Thus although the law of
England at that
time, did not wholly disregard, the right of
Slavery as recognized by the law of Nations
in cases of Captives made in war, yet it
admitted it with many qualifications, in
the first instance, and
Judge Blackstone

tells us -- that if the Lord became bound to
his Villein -- if he granted him an annuity,
or gave him an estate either in fee, for life
or years, -- or brought an action against
him, or in any instance dealt with his
Villein on the footing of a freeman -- he
was at once enfranchised -- the law being
always ready to catch at any thing in
favor of liberty.
+ -- That by these and

+ "Also if a Villein
enter into Religion
the Lord may not
seize his body, nor
put him to no
manner of labour,
but must suffer him
to abide in his Religion
as other religious persons
do that be not bondmen."

Dr.& Stud:B. 2. C. 43.

Ib. 95.

many other means Villeins in process of time
gained considerable ground on their lords, and
in particular strengthened the tenure of their estates in
that degree that they came to have in
them an interest in many places full as
good, in others better than their lords; at
length began to be called Tenants by copy of
Court Roll,
and their tenure itself a Copyhold.
which subsists at this day in the Manors in every
part of the Kingdom. -- These encroachments
grew to be so universal that when tenure in
Villenage was virtually abolished ( though

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copyholds were reserved ) by the Stat: of Ch. 2.
there was hardly a pure Villein left in
the nation. For
Sir Thomas Smith
that in all his time ) and he was Secretary to

Edward. 6.( he never knew any villein in
throughout the Realm". --

Lofft: 8

Lord Mansfield
mentions an assertion but
does not recollect the Author, that only two
Villeins regardant were in
England in
the time of
Charles the 2d. at the time of
abolition of tenures.

This Villenage is the only species of slavery
that was ever tolerated in
England , in consequence of the jus gentium, recognized as law
but this differed, as we have Seen,
very essentially from the domestic slavery
of modern times.

But in whatever degree villenage may
have resembled the kind of Slavery now contended for, it has not only expired in
England , but
expired never to revive, as that very law
of Nations upon which is was founded, is be
:come obsolete, and the -- principles upon
which that law, rested, are declared by
Judge, Sir William Blackstone
as well as all other modern writers
to be built upon false foundations.

Co Lit. 117.6.


Fit etiam Servus liber homo per confessionem in curio regis fact:
"From our law ( says
) thus permitting
a person to be a Villein by acknowledgment in

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Court of record, some have argued that it is a legal
mode of creating personal bondage, with a view
to prove that there is not any things so repugnant
in our law to domestic slavery, as is generally
imagined, and thence to lay a foundation for
more easily inferring the lawfulness of importing
slavery from our Colonies.-- But in another
place we have had occasion to object to this
way of considering the acknowledgment; & to explain why it Should be deemed merely a confession
of that immemorial antiquity in the Villein's Slavery
which was otherwise necessary to be proved"."See
this Editor's argument in the case of
Somerset a Negro
60 to 65 and
99." -- agreeably hereto --

77 C.D.

So carefully in old Times did the law regard the
liberty of the Subject that if the Lord sued out
his writ de nativo habendo, and showed the sheriff his Slave, he could not touch him if he
only claimed his freedom, but in that case
the Lord was obliged to count or declare against
him, and state his title and prove it before he
could take him.


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I come naturally now to the fourth point
of the argument

IV. What is the law of
England at this day
upon the subject of Slavery?

St. Germins treatise,entitled Doctor & Student

a book of great learning and approved authority,
written expressly, to inquire into the grounds and
reasons of the Common Law of
England --

Dial. 1.C. 2 .

It is laid down, that the law of reason or nature
is the first ground of the law of
England ; and
"The Law of nature," says this treatise, "specially considered which is also called the Law of reason,pertaineth only to creatures reasonable, because it
is written in the heart, therefore it may not be
put away, nor it is never changeable by no
diversity of time nor place: And therefore against this law, Prescription, Statute nor
Custom may not prevail. And if any be
brought in against it, they be not precriptions
Statutes nor Customs but things void and
against justice.

ib. C. 4.

Every man's law must be consonant to the
law of God. -- And therefore the laws of Princes,
the Commandments of Prelates, the Statutes of
Commonalties, nor yet the ordinance of the

Church is not righteous nor obligatory, but
it be consonant to the law of God.

ib.C. 5.

By the law of Nature of Reason primary
be prohibited in the Laws of
England , murder
( that is the death of him that is innocent ) Perjury Deceit, Breaking of the Peace & many

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other like. And by the same law also it is
lawful for a man to defend himself, against
an unjust power, so he keep due circumstance.
And also if any promise be made by man as
to the body, it is by the law of Reason void in
the law of

ib.c. 6.

If any general custom were directly against the
law of God, or if any Statute were made directly
against it: As if it were ordained that no
alms should be given for no necessity -- the
Custom and Statute were void.

ib. C. 7.

The third ground of the law of
England , standeth upon divers general customs of old time, used
through all the Realm, which have been accepted
and approved by our Sovereign Lord the King
and his Progenitors and all his subjects, and
because the said Customs be neither against the
law of God nor the law of reason, and have been
always taken to be good and necessary for the
Commonwealth of the Realm, therefore they have
obtained the strength of a law, insomuch that
he that doth against them doth against
justice: and these be the Customs that properly
be called the Common Law

By the old Custom of the Realm, no man Shall
be taken imprisoned deceased nor otherwise destroyed but he be put to answer by the Law of the Land.
And this custom is confirmed by the Stat: of Magna
Charta. c. 26

Hob. 87.

Lord Chief Justice Hobart
has also advanced
that even an Act of
Parliament made against
natural justice, as to make a man judge
in his own cause, is void in itself, for jura

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naturae sunt immutabilia,
and they are legus

1. Bl. Com. 40

Judge > Blackstone
tells us. -- "This law
of Nature being co--eval with mankind, and
dictated by God himself, is of course superior in
obligation to any other, it is binding over all
Globe in all Countries, and at all times,
no human laws are of any validity if contrary to this; and such of them as are valid
derive all their force and all their authority
from this original".

ib. p. 42

And again --"Upon these two foundations
the law of nature and the law of revelation
depend all human laws; that is to say no
human laws should be suffered to contradict
these. -- In the case of murder if any human
law should allow or enjoin us to commit it,
we are bound to transgress that human law,
or else we must offend both the natural and
the divine".

ib.p. 54.

Those rights which God and nature have
established, and are therefore called natural
such as are life and liberty, need not
the aid of human laws to be more effectually
invested in any man than they are, neither
do they receive any additional strength when
declared by the municipal law to be inviolable.
On the contrary no human
legislature has power
to abridge or destroy them, unless the owner
shall himself commit some act that amounts to a forfeiture". --"On the whole

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ib. 124.

the declaratory part of the municipal law,
has no force or operation at all, with regard
to actions that are intrinsically right or wrong".
"The principal aim of society and the first & primary
end of all human laws is to maintain and regulate the absolute rights of Individuals, which
were vested in them by the immutable laws
of nature, and to protect them in the enjoyment
of those rights".

ib 125.

"The absolute rights of Man considered as a free
agent are usually summed up in one general
appellation and denominated the natural
liberty of mankind; which consists properly
in a power of acting as one thinks fit, without
any restraint or control, unless by the law of nature".
"Political or civil liberty is no other than natur
:al liberty so far restrained by human laws,
( and no further ) as is necessary and expedient
for the general advantage of the public"

Professor Christian
in his Edition of the Commentariesin a very learned note upon this
part of the text; very properly and forcibly remarks that, "in the definition of civil
liberty it ought to be understood or rather
expressed, that the restraints introduced by
the laws, should be equal to all, or as
much so as the nature of things will

"This Spirit of Liberty",
Judge Balckstone

goes on to say, is so deeply implanted in our

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constitution, and rooted even in our very soil
that a Slave or a Negro the moment he lands
England , falls under the protection of the
laws and so far becomes a free -- man".--
It is indeed added in this place; -- "though
the Master's right to his service may possibly
still continue"-- But
Professor Christian
this, in his notes he says --"I do not see how
the Master's right to the service can possibly
it can only arise from contract,
which the Negro in a State of Slavery is incapable of entering into with his Master. -- It is
not to the soil or to the air of
England that
Negroes are indebted for their liberty, but to
the efficacy of the writ of Habeas Corpus,
which can only be executed by the Sheriff
of an
English County."

p. 424

Judge Balckstone
in a subsequent part
of the same volume, says

"And now it is laid down, that a Slave or
Negro the instant he lands in
England , becomes
a free man, that is the law will protect him
in the enjoyment of his person & his property.
-- Yet with regard to any right, which the
Master , may have lawfully acquired to the
perpetual service of
John or
Thomas, they
will remain exactly in the same state as
before, for this is no more than the same
of subjection for life which every
apprentice submits to for the space of seven

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years or sometimes for a longer time".
Upon this
Mr. Christian
observes -- The
meaning of this sentence is not very intelligible -- If a right to perpetual service can
be acquired lawfully at all, it must be acquired by a contract with one who is free,
who is sui juris and competent to contract.
such a hiring may not perhaps be illegal
and void.-- If a man can contract to serve
for one year, there seems to be no reason to
prevent his contracting to serve for 100, years
if he should so long live, tho' in general the
Courts would be inclined to consider it as an
improvident engagement, and would not
be very strict in enforcing it. But
there could be no doubt but such a contract with a person in a state of slavery
would be absolutely null and void."

N.B. The law of

Scotland annuls
the contract to
serve for life

p. 5.
a case is to be found
in the history of the
decisions, where a
term of years was
discharged as exceeding the usual
limits of human
life. ib.

The sentence of
Judge Balckstone
appears to me to be very intelligible -- he
says that the right which the Master
may lawfully acquire to the perpetual service of
John or
Thomas, is the same state
of subjection for life, which every apprentice submits to for 7 years. -- Now apprentices are no otherwise bound than by contract they cannot be said to submit in
any other way. It must therefore be here
intended by
Judge Balckstone ,
the right to perpetual service must be

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acquired by contract, as the only lawful
way of acquiring it; -- this reconciles the expression he had before made use of --though
the Master's right to his service may
possibly still continue." -- Meaning that
it is scarcely possible to suppose that a
man would voluntarily contract to serve
another for life; and perhaps to express
the same doubt that
Professor Christian

entertains, whether such a contract would
not be set aside as an improvident engagementthough not ipso facto,illegal and void. And that this is
Judge Blackstone
meaning, is evident from what
follows in the same Paragraph --"The Slave
is entitled to the same protection in
before as after baptism; and whatever Service
the Heathen Negro owed of right, to his
American Master, by general not by local
law, the same, whatever it be is he bound
to render when brought to
England and
made a Christian."

Judge Balckstone
evidently disclaims
all authority or right derived to the Master
from local law, that is the laws of the
place from whence he was brought, or
where he was made a Slave, and confines
the right of the master, such service
as he is entitled to by the principles of general

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law, by virtue of which the right can only
be founded upon or supported by Contract only.
There is peculiar caution in
Judge Balckstone's

expression upon this subject, perhaps because
at the time he wrote there had been no solemn
decision of the law upon it, and he feared to excite
such an alarm as might have been occasioned
by declaring in unqualified terms that Negroes
were free upon their coming into
England ; for
Somersets' case which happened a few years afterwards
( in the year
1772 )
Lord Mansfield,
at first to entertain some doubt, and expressed
great reluctance at coming to a decision upon
this point -- He said in the course of the cause

Lofft.p 8

:the distinction was difficult as to slavery, which
could not be resumed after emancipation, and
yet the condition of slavery, in its full extent
could not be tolerated here. Much consideration was necessary to define how far the point
should be carried. The
Court must consider
the great detriment to Proprietors, there being
so great a number in the Ports of this

Kingdom, that many thousands of pounds
would be lost to the owners by setting them
free". --
Mr. Dunning in his argument in
that cause states that about 14,000 Slaves
from the most exact intelligence he was able
to procure were then in
England . --

Lord Mansfield
in giving the judgement of
Court, says --"In five or six cases of this

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nature I have known it to be accommodated by agreement between the Parties: On its' coming before
me I strongly recommended it here. But if the
Parties will have it decided, we must give our
opinion. Compassion will not on the one hand,
nor inconvenience on the other, be to decide; but
the law: -- The setting 14,000 or 15,000 men
at once free by a solemn opinion, is much disagreeable in the effects it threatens. If the Parties
will have judgment, fiat justitia, ruat coelum
Let justice be done, whatever be the consequence.
-- he then goes on to say, I think it right the
matter should stand over; and if we are called
on for a decision proper notice shall be given".

Can it be wondered then, that
Judge Balckstone
should speak in the very cautious manner
he does on this subject, when he uses the expression
above cited, though the Master's right to his service
may possibly still continue"? but when we look
to the case cited by
Judge Balckstone
in support of this doctrine
Salk. 666.
we find that
the expression was in fact made use of
in this place merely because there had been
no solemn decision of the question -- In that
case, which was
an Action of Trover for a Negro, which it was
adjudged would not lie -- The Council for the Plt
insisted -- "If I imprison my Negro, a Habeas Corpus
will not lie to deliver him, for by Magna Carta
he must be liber homo. 2. Inst: 45.

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Sed Curia Contra,Men may be the Owners &
therefore cannot be the subject of property. Villenage
arose from Captivity, and a man may have trespass
quare captivum suum cepit, but cannot have
trover de gallico suo . And the
Court seemed to
that in trespass quare captivum suum
the Plaintiff might give in evidence
that the party was his Negro & he bought him."

All therefore that
Judge Balckstone
could mean
by this expression was, that possibly, when the
question should be settled by a solemn decision
at law, it might be decided that the Master's
right to the service of the Negro should continue after his being brought to
England .
This however did not happen for when the question
was solemnly decided in the Case of
as we shall presently see, it was determined that
this right of the Master did not continue.
Judge Balckstone
in considering the
question, upon principles, at large, in the subsequent
part of his book, which has been so fully remarked
upon, most clearly gives it as his opinion in
conformity to the doctrine he had advanced upon
the subject of Laws in general and agreeably to the fundamental
principles of the common Law of England that the freedom
of the Negro upon his being brought into
was one of those rights which God & Nature had
established, which needed not the aid of human
laws to be more effectually invested in him, and
which could not be abridged or destroyed by an human
legislature unless
he should himself commit some Act, that
amounted to a forfeiture; or being sui juris and

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competent to contract, had voluntarily engaged
to serve or work for the Master claiming his
service, in the manner that apprentices are

And here I presume I might safely rest the
Cause before this
in full confidence that
they would declare, in the judgment they
may give, that is beyond the power of
human laws to establish that condition
of Slavery which is contended for on the
present occasion.

But I shall not stop here. -- It shall now
be my business to inquire how the law has been
solemnly settled, upon the Subject in
England .
Creswell Levinz
Joseph Keble

5. Mod. 187--


The first case that is to be found in the books
upon this Point. is in Trinity Term. 9.
Car:2. (
1657 ) --
Butts vs.
Penny, when it
was held that Trover would lie for a Negro,
but no judgment was entered in that case.

It is said there was another case of the same kind in that Reign.

but in a subsequent case --
Easter 5. Ann. (
1706 )
Sir Thomas Raymond
Court denied the opinion in the case of
Penny to be law.

John Holt495.


The next case is
Smith vs.
Brown & Cooper,

in which
Lord Holt
Ch. Justice, says --
As soon as a Negro comes into
England , he becomes
free; and one may be a Villein in
England but
not a Slave .--
John Powell
In a Villein the
owner has a property, but tis an inheritance,
The Law takes no notice of a Negro --


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5. Mod.186.
Thomas Raymond146.

The next case is
Chamberline vs.
Harvey Easter
8.W. 3. (
1697 ) which was -- Trespass for taking a negro Slave of the value of L100 --
upon not guilty pleaded the Jury found a special
Verdict at the
Guildhall in
London --

That the father of the Plaintiff was possessed of this
Negro and of such a manor in
Barbados & that
there is a law in that
Country making the Negroes
part of the real estate -- that the father died seized
whereby the manor descended to the Plaintiff as Son
and Heir -- that he endowed his Mother of this
Negro and 1/3 of the Manor -- that the Mother
Watkins who brought the Negro to

England , where he was baptized without the
knowledge of the Mother -- that
and his wife are dead, and that the Negro
continued several years in
England and at the
time when the trespass was supposed to be committed was in the service of the Defendant & had
for his wages L6. per annum -- But whether
upon the whole matter the Defendant be guilty
of the trespass -- they refer to the
Court --

Three questions were made upon this Verdict.
1. Whether upon this finding there was any legal
property vested in the Plaintiff
2. If any such property be vested in him, then
whether the bringing this Negro into
be not a manumission and the property thereby
3. Whether an Action of trespass will lie for

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taking a Man, of the price of L100? --
In support of the Point the doctrine of Villenage
was insisted upon -- Also the Act of
Assembly of the
Island of
Barbados which makes these Slaves
part of the real estate, and that this Negro was
born of Negro Parents there:-- That this ordinance
being made in
Barbados a place subject to
the Crown of
England have the same force there
as an Act of
Parliament here. -- And the
case of
Butts and
Penny, which had not then
been over-- ruled was relied upon.

On the second, it was insisted that nothing
was found that amounted to a manumission
-- It was argued upon the ground of Villenage
that a Villein could in no case be enfranchised
but when the Lord is an actor -- That nothing
of the Lord's consent was found in this Verdict
but the contrary -- That the bringing him
England by
Watkins will not make him
free, because he was a trespasser in so doing for
he ought not to have removed him from the
Plantation to which he was regardant. If therefore
taking him from the Plantation was torturous
then the finding that he continued in his service and that he afterwards turned him away
will not amount to a manumission.

It was argued on the other side -- That it
is against the Law of Nature for one man
to be a Slave to another. -- It is true that a
man may lose his liberty by a particular Law of
his Country or by being taken in war, for there
he owes his life to those who preserve him;
or where a man voluntarily sells himself for sustenance or alimony, but no such thing is found
in this verdict, and nothing shall be presumed
but what is in favour of liberty. It is by the
constitution of nations, and not by the law
of nature
that the freedom of mankind has
been turned into Slavery.-- But our Laws
are called Libertates Anglice because they
make men free.

"If Slavery in
Barbados and Villenage
here were the same sort of servitude, the
Plaintiff may be seized of this Negro, as a Villein
in Gross, or as regardant to the Plantation
for there were but two sorts of Villeins here
either in gross or regardant to particular
manors. Now this cannot be a Villein Regardant to the Plantation, for then the Plaintiff and his Ancestors must be seized of this
Negro and his Ancestors time out of the
memory of Man, which could not be, because

Barbados was acquired to the English within
time of Memory, and he cannot be a Villein
in gross,
because it is found he was born of
Parents belonging to the Plantation. -- But
if the Plaintiff have any property in this Negro
he must either have an absolute or qualified
property in him at the time of the trespass
supposed to be committed. He could not have
an absolute or general property because by
Magna Charta and the Laws of

no Man can have such a property over
another. And if he had only a qualified property, then an Action of trespass will not lie,
but an Action per quod servitium amisit".

"But if the Plaintiff had any right to the
servitude of this Negro, that right is now divested by his coming into
England ; for the ordinance
made in
Barbados shall not make him so
regardant to the Plantation there, as to go to
the heir, because that is only lex loci & adapted
to that particular place ( as the law of
Cornwall ) and extends only to that Country,
so long as he is occupied in service on that
Plantation; and if he be brought into another
Country where that law has no effect, that amounts to a manumission, so that the bringing
him into
England discharges him of all servitude or bondage". --"If the Lord have still
an absolute property over him then he might
send him into any other Country -- but the law
is so careful of the liberties of Men under its'
protection, that the King himself, who has so
great a right to the duty and service of his
Subjects, cannot send any one out of
against his will to serve in any other place,
even in his own dominions, for this my
says would be, perdere patriam, and
therefore the Lord could not send a Villein in
out of the Kingdom because the King
had a right to him. Thus it is also in the
care of apprentices, who, though they voluntarily
to serve their Masters for a certain
number of years, yet they cannot be sent

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1. Bl. Com. 137.
out of the Kingdom, though it be to their Master's
house, and in his service, unless it be the agreement or the nature of the apprenticeship is such."
agreeably to this doctrine
tells us -- that
"No power on Earth, except the authority of Parliament can send any subject out of the land
against his will; no, not even a Criminal".

In this case the
Court avoided giving any opinion upon the two first points made in the
cause, but determined it upon the third point
that the bill should abate; for the

were of opinion that no action of trespass
would like for taking a Man generally,
but that there might be a special action
of trespass for taking his servant per quod
servitium amisit.
-- And per
Holt Chief
Trover will not lie for a Negro -- contra to 3;
785. 2. Lev. 201.
Butts vs

NB. The
Court do
not say, there might
have been an Action
per quod in
this case before them
but that there
might be such an
action, where the
facts would support

-- In this case in this as reported in
Ld. Raymond

is the following note -- Hill: 5. W.& M.C.B.
Selly and
Cleve, adjudged that

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 Place.
This Note has occasioned a very severe reprehension of the practice it gave rise to by

1. Bl. Com. 425.

Judge Balckstone
in the following words
"The infamous and unchristian practice of
withholding baptism from Negro Servants

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lest they should thereby gain their liberty, is
totally without foundation as well as without
excuse." Upon which
Professor Christian

"We might have been surprised that the
learned Commentator should condescend to treat
this ridiculous notion and practice with so
much seriousness, if we were not apprized
that the
Court of Common Pleas, so late as the
5. W. & M. held, that a Man might have a
property in a Negro Boy and might bring
an Action of trover for him, because Negroes
are heathens.
-- A Strange principle to found
a right of property upon!"

Ld. Raym.

The next case upon this point is in
Term. 5.
Gould. --

"In an Action of
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 Ch. Just. Holt
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 20. v. 21. it is

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said, he is but the Master's money, that if a
Lord confines his Villein the
Court cannot set
him at liberty -- and he relied on the case of

Butts vs
Penny -- 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 Villain etc .
There is no such thing as a Slave by the Law
. And if a man's Servant is taken
from him, the Master cannot maintain an
Action for taking him, unless it is land per
quod servitium amisit"
. --"And the Court denied
the opinion in the case of
Butts v
It may indeed be safely contended that
the very bringing an action of trespass per
quod servitium amisit,
is incompatible with
the condition of Slavery insisted upon in the
present case -- for
Judge Balckstone

1. Bl.Com.429

us, "that the reason and foundation upon
which all this doctrine is built seem to be
the property that every man has in the Service
of his domestics, acquired by the Contract of
and purchased by giving them wages".

-- And to support such an Action the PL
I apprehend must declare upon and prove the Contract
whether parol or written, by which he is

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entitled to the service of the servant in question,
and damages for the loss of such service.
In the case then of a Negro, the Plaintiff
must first without a contract to support
his actions
unless in the instance of Master
and Servant commencing without Contract,
and that of apprentices against the will of
the Parties, both which are provided by special
Statutes of municipal law. -- In the
case then of a Negro the Plaintiff in such
an Action must fail, for default of proving
a legal Retainer of him in his Service.

Lofft. 4.

The next case is one mentioned in the case of

Somerset --
Stanley and
Hervey which must have
been between
1761. and
1765. while
Ld. Northington was
Chancellor. On a bequest to a Slave, by a person
whom he had served some years by his former
Master's permission, the Master claims the bequest
Lord Northington decides for the Slave
and gives him Costs."

We now come to the celebrated case of
Somerset decided in the
Court of King's Bench in the year
1772 .
In which says
Professor Christian
"It was decided,
that a heathen Negro, when brought to
owes no service to an American or any other
Master". "The case was this --
James Somerset
had been made a Slave in
Africa and was sold there;
from thence he was carried to
Virginia where he
was bought, and brought by his Master to

England ; here he ran away from his Master

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who seized him and carried him on board a Ship
where he was confined, in order to be sent to
to be sold as a Slave. Whilst he was thus confined,

Lord Mansfield
granted a habeas corpus, ordering
the Captain of the Ship to bring up the body of

James Somersett,
with the cause of his detainer.
The above mentioned circumstances being stated
upon the return to the writ, after much learned
discussion in the
Court of King's Bench, the

Court were unanimously of opinion that the
Return was insufficient and that

ought to be discharged."

Much may be learned of the grounds & principles of this decision, from the Arguments
made use of by the Counsel in the cause.
It is but indifferently reported by
I have not been able to obtain
Mr. Hargraves

learned argument for the Negro printed in 11
State Trials. 340. from the Report however
many important observations may be collected.

Domestic Slavery says
Mr. Hargrave
--"took its origin
very early among the barbarous nations, continued
in the state of the Jews, Greeks, Romans & Germans,
was propagated by the last over the numerous
and extensive Countries they subdued. Incompatible
with the mild & humane precepts of Christianity
it began to be abolished in
Spain as the Inhabitants
grew enlightened and civilized in the
8. Century
it's decay extended over
Europe in the
14th. was
pretty well perfected in the beginning of the
Century. Soon after that period, the discovery of

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America revived those tyrannic doctrines of servitude with their wretched consequences. There is
now at last an attempt to introduce it into England long and uninterrupted usage from the
Common Law stands to oppose its revival.--
All kinds of domestic slavery were prohibited except Villenage. A new species has never arisen
till now; for had it, remedies and powers there
would have been at law.-- Therefore the most
violent presumption against it is the silence of
the laws, were there nothing more. Tis very
whether the laws of
England will
permit a man to bind himself by contract to
serve for life: certainly will not suffer him to
invest another man with despotism, nor
prevent his own right to dispose of property.
If disallowed when by consent of parties, much
more when by force; if made void when commenced here, much more when imported."--

Mr. Alleyne

"What power can there be in any man to dispose
of all the rights vested by nature & society in
him and his descendants? He cannot consent
to part with them, without ceasing to be a Man,
for they immediately flow from him and are
essential to his condition as such: They cannot
be taken from him, for they are not his, as
a Citizen or a member of society merely; and are
not to be resigned to a power inferior to that
which gave them.

"Slavery is not a natural 'tis a municipal relation an institution therefore confined to certain

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places, and necessarily dropt by a passage into a
Country where such municipal regulations do not
The Negro making choice of his habitation here, has subjected himself to the Penalties
and is therefore entitled to the protection of our Laws."
The Court approved of
Mr. Alleyne's opinion of the distinction how far municipal laws were to be regarded instanced the right of marriage; which properly
solemnized was in all places the same, but the regulations of power over Children from it and other
circumstances very various; -- and advised,Parliament who could make laws"

Lord Mansfield
-- "Contract for the sale of a Slave
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.
But here the person of the Slave himself is immediately the object of enquiry, which mak
European nations which had made the greatest
improvements in agriculture,
America was discovered the first settlers of which, from their distance,
and from the little attention that was paid to them
by the
Government of their mother Countries,
were under no necessity of conforming to the laws
and customs of
Europe . The acquisition of Gold
and Silver was the great object, by which the Spaniards were directed in the settlements which
they made upon that Continent; and the native
inhabitants, whom they had conquered, were seduced into Slavery and put to work in the mines.
But being either exhausted by the severity with
which they were treated, or not being thought
sufficiently robust for that kind of labour, Negro
Slaves were afterward purchased for this purpose
from the Portugese settlements on the Coast of

Africa . When Sugar Plantations were erected
the same people were employed in these and in
most other kinds of work which came to be
performed in that part of the world. -- Thus the

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practice of slavery was no sooner extinguished by
the inhabitants in one quarter of the
Globe, than it
was revived by the very same people in another,
where it has remained ever since, without being
much regarded by the public or exciting any
effectual regulations in order to suppress it".


Considering the many advantages which a Country
derives from the freedom of the labouring People
it is matter of regret that any species of Slavery
should still remain in the dominions of
Britain, in which liberty is generally so well
understood and so highly valued".

"The first importation of Negro--Slaves into
Hispaniola was in the year
1508 . -- Anderson's History
of Commerce Vol. 1. p. 336.

Guthrie's Geo:


"The Negroes in the plantations are subsisted at a
very easy rate.-- This is generally by allotting to
each family of them a small portion of land
and allowing them two days in the week Staurday and Sunday to cultivate it: Some are subsisted in this manner but others find their Negroes
a certain portion of Guinea and Indian Corn and
to some a Salt herring or a small portion of Bacon
or salt--pork a--day. All the rest of the charge
consists in a Cap, a shirt, a pair of breeches
and a blanket; and the profit of their labour
yields L10 or L12. annually".


"The English landed in
Barbados about the
1625. in
1650. it contained more than
50,000 Whites and a much greater number
of Negroes and Indian Slaves, the latter they

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acquired by means not at all to their honor,
for they seized upon all those unhappy men
without any pretence in the neighbouring
Islands and carried them into Slavery -- a
practice which has rendered the
CaribbeanIndians irreconcilable to us ever since".

An Account of
European Settlements

vol. 2 p. 124

"The Negroes in our Colonies endure a slavery more
complete and attended with far worse circumstances
than what any people in their condition suffer
in any other part of the world, or have suffered
in any other period of time. Proofs of this
are not wanting."


In the year
1668 an Act of
Assembly was passed
in the Island of
Barbados declaring the Negro Slaves
of that Island to be real estates, by which it was
enacted that "All Negro Slaves in all
Courts of judicature and other places within that Island
should be held taken and adjudged to be estates
real and not chattels within that Island,
and should descend unto the heir or widow of any
person dying, according to the Manor & custom
of lands of inheritance held in fee simple".

Morse; Amer:


"Slaves pass by descent and dower as lands do,
Slaves as well as lands were entail able during
the Monarchy, but by an Act of the first
Republican Assembly , all dowers in tail present & future
were vested with the absolute dominion of the
entailed subject."

October 1786 an Act was passed by the
prohibiting the importation of Slaves into the

Commonwealth upon penalty of the forfeiture of
L1000 for each Slave -- And the Slave became free."


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By a law of the state Province of
New York passed in
It was enacted that the baptizing of a Negro, should
Indian or Mulatto Slave, should not make them
free -- And that all and every Negro, Indian,
Mulatto, and Mestic -- bastard Child & Children
who is, are and shall be born of any Negro, Indian
Mulatto or shall follow the State & Condition of the Mother and be esteemed & adjudged
a Slave and Slaves to all intents & purposes
-- And that no Slave should be
admitted a witness for or against any Free
man in any cause whatever civil or criminal
By another Act passed in
1730 any Master or
Mistress might punish his her of their Slave or
Slaves for their crimes and offences at discretion
not extending to life or limb.

Every Town to appoint a Common
for Slaves, who was not to be allowed above 3/
a head for whipping.

This Act afterwards declaring that Slaves are the
property of Christians as Jews
and that they cannot
without great loss to their owners be subjected in
all cases criminal to the strict rules of the laws
England , enacts that if a Slave shall by
theft or other trespass any person to the
value of L5. or under, the owner of such Slave
shall make satisfaction to the party injured,
and the Slave shall be whipped at the discretion
of a justice of the peace, and the owner paying the
charges of such punishment, shall receive his
Slave again without further punishment.


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It is then enacted, that no Slave shall be admitted
an evidence in any cause, except in cases of plotting
among themselves to run away, kill or destroy their
Master Mistress or some other person, or burning of
houses Barns, barracks, or stacks of hay or corn, or
killing their Master or Mistresses cattle or horses,
& that only against one another, in which cases
the Evidence of one Slave shall be good against
another Slave.

The Act then proceeds to declare, that if any Negro
Indian or Mulatto Slave shall be guilty of Murder
Rape, Arson, mayhem, or Conspiracy, one Justice
upon complaint, shall call to his aid two other
justices, which three justices shall summon 5 freeholders
to meet at the time & place they shall appoint, when
& where the justices shall appoint some person to accuse
the person, without the intervention of a
Jury -- to which accusation the party accused shall
be obliged immediately to or receive sentence
as if convicted by Verdict or confession;-- And upon
pleading, the Justices & the 5 freeholders to whom no
peremptory challenge shall be allowed, shall proceed to trial (the freeholders being first sworn to judge
according to evidence) and if they or seven of them shall find the
officers guilty party accused guilty shall give sentence of death
and warrant for immediate execution.

The act then provides for reimbursement to the owner
of the Slave executed, of the price, not to exceed L25.
by assessment upon the County.

An Act of
Assembly of the Province of
Bay passed in
1706. imposes a duty of L4 per head
upon every Negro, imported, allowing a draw--back of

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the duty in case such Negro shall be re--exported within
twelve months and bona fide sold in any other
plantation. In this
Province there were several other Acts of

Assembly, respecting the Negro and Mulatto Slaves in it.
I have not had it in my power to procure the municipal laws of any other of His Majesty's Provinces
now enjoining included in the
United States of America or of any other of His Majesty's Islands in
West Indies ; but no doubt can be entertained
that local laws establishing or recognizing this
species of Slavery were passed in all of them in
which this right was exercised.

It is abundantly clear that in all those Islands
and Provinces -- The condition of Slavery, invested the
Master with the absolute and unqualified property
in the Slave, to all intents & purposes, not extending
to life
or perhaps in some places to limb;
That it included the power of the Master over
the Slave's person & property, the right of the
Master over all acquirements of the Slave's labour a right of alienation and transportation
to any other Master and Country; that it included the property from Parents to
Children, and in like manner continually of
the Slave and all his descendants. --

The only distinction that appears to have taken
place is, that in some of the Colonies, they were
considered as personal Chattels, and in others
were made estates real, to the heir or

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widow in like manner as lands of inheritance in fee simple.
And the several Acts of Parliament which have
been made, respecting it have recognized the
condition of Slavery in the Plantations in which it was established as attended
with all the consequences above stated.

The first Act that we find in the Statute
Book upon this subject is the Act.5.Geo.2. C.7.
entitled"An Act for the more easy recovery of debts
in his Majesty's Plantations & Colonies in
by which it is enacted that the houses, lands,Negroes and other hereditaments and real estates, shall
be liable to the payment of debts and shall be subject to the like remedies proceedings and process
in any
Court of law or equity, in any of the said
Plantations respectively,
for seizing, extending, selling
or disposing of any such houses lands, Negroes and
other hereditaments and real estates towards the satisfaction of such debts, and in like manner
as Personal Estates in any of the said Plantations
are seized, extended sold or disposed of
for the satisfaction of debts. +

This Act was meant
only to make lands
tenements and here:
[ ditaments ] equally
liable to the payment
of debts due to
British Subjects,
with goods & chattels.

-- and -- so far as it respects Negroes, was probably
made in consequence of the Acts of
Assembly above
mentioned in
Barbados and
Virginia, and probably
Acts of a similar nature, in other Islands and
Colonies where Slavery was established, by which Negroes were made estates and as lands
of inheritance in fee simple.

But the Act by no means intimates or implies
an idea that the Slavery of Negroes was in practice
in all or even generally in the Colonies; --on the contrary the Preamble of the Act states --"Whereas His
Majesty's Subjects trading to the British Plantations

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America lie under great difficulties, for want of
more easy methods of proving recovering & levying
of debts due to them, than are now used in some
of the said Plantations
". and the enacting part as
we have seen limits the operation of it to the plantations respectively, to which the different subjects
of it apply: --but no inference can be drawn from it +

+ to extend the laws
of Slavery from Colony
to Colony, wherever
the Negro may be
found, any more
than to give operation to any
other law of

The Next Act of
Parliament respecting this
subject is the Act of 23. Geo: 2. C. 31. "An
Act for extending and improving the trade to


There is no enacting clause respecting Slaves, in
this Act excepting the first -- The Preamble is in the words following -- "Whereas the trade to and from
is very advantageous to
Great Britain , & necessary
for the supplying the Plantations & Colonies there
unto belonging with a sufficient number of Negroes at reasonable Rates, and for that purpose
the said trade ought to be free and open to all
His Majesty's Subjects." -- The Act then proceeds
to lay this trade open to all His Majesty's Subjects.

This Act evidently refers to those Colonies & Plantations where Negro Slaves were considered as necessary
for the cultivation of the staple Commodities produced in them; and even in these it does not establish the Condition of Slavery, but supposes it to exist by the provision of their municipal laws.

These Acts of
Parliament evidently recognize
the Condition of Slavery in the Plantations, in which
it was tolerated, to be attended with all the Consequences above enumerated, and accordingly
Dunning in his Argument in the case of


Somersett says --"That his Condition was that of servitude

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Africa; the law of the land of that Country disposed
of him as property, with all the consequences of transmission and alienation; the statutes of the
legislature confirm this condition; and thus he
was a Slave both in law and fact".

The only remaining Act of
Parliament relating
to the question is the Act of the 30th of the present

30. G. 3.C.27.

reign entitled "An Act for encouraging new Settlers
in his Majesty's Colonies & Plantations in
America ".
which is in the following words

"Whereas it is expedient that encouragement should
"be given to persons that are disposed to come and
"settle in certain of His Majestys Colonies & plantations
America and the
West Indies Be it therefore enacted
"by the King's most excellent Majesty by and with
"the advice and consent of the Lords spiritual and temporal and
"Commons in this present
parliament assembled
"and by the Authority of the same That from and
"after the
first day of August one thousand seven
"hundred and ninety if any person or persons
"being a subject or subjects of the Territories or Count--
"tries belonging to the
United States of America shall
"come from thence together with his or their family or
"families to any of the
Bermuda or
"Islands or to any part of the
Province of Quebec or of
Nova Scotia , or any of the Territories belonging to his
"Majesty in
North America for the purpose of residing
"and settling there it shall be lawful for any such
"person or persons having first obtained a licence
"for that purpose from the Governor or in his absence
"the Lieutenant Governor of the said Islands, Colonies
"or Provinces respectively to import into the same in

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Ships owned by his Majestys Subjects and
navigated according to Law any Negroes household
furniture, Utensils of husbandry and clothing, free
from duty. Provided always that such household
furniture Utensils of husbandry and clothing shall
not in the whole exceed the value of fifty pounds
for every white person that shall belong to such family,
and the Value of forty shillings for every Negro
brought by such white person and if any dispute
shall arise as to the value of such household furniture
Utensils of husbandry or clothing the same shall be
heard and determined by the Arbitration of three
British Merchants at the Port the same shall be im--
ported, one of such British Merchants to be appointed
by the Governor or in his absence the Lieutenant Governor of such Island or Province, one by the Collector
of the Customs of such port, and one by the person
so coming with his family.

II And be it further Enacted, that all sales or bargains for the sale of any Negro, Household furniture
Utensils of husbandry or clothing so imported, which shall
be made within twelve Calender months after
the importation of the same (except in cases of the
bankruptcy or death of the owners thereof) shall
be null & void to all intents and purposes whatsoever

III And be it further enacted that every white
person so coming to reside, if above the age of
fourteen Years, shall and he is hereby required
immediately after his Arrival to take & Subscribe
the oath of Allegiance to his Majesty his heirs and
successors, before the Governor, Lieutenant Governor

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or Chief Magistrate of the place where such person
shall arrive, and at the same time swear that it is
his intention to reside and Settle in such Island
or Province for which oaths such Governor Lieutenant
Governor or Chief Magistrate shall receive the same
fee and no more as is payable by law on administering the Oath of Allegiance in cases where the
same is now by law required --


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This Act [] no Condition of show does not
establish Slavery in any Colony in which it did not
exist antecedently thereto, nor does it convey an
idea that Slavery was established in all the Colonies
mentioned in it -- On the contrary the clause requiring
a licence to be obtained from the Governor for the
importation of the Articles mentioned in it, may
be fairly considered as being inserted, with a view to
guard against any difficulty that might arise
from bringing Negroes into a Province where slavery was not sanctioned by law.

This brings me to the last and principal point
of the Argument
VI. What is the law of this
Province respecting
the Slavery of Negroes?

And here it must be premised, that they are
either free or absolute Slaves with all the consequences of transmission and alienation, and incapacity to acquire any property of their own.
For it was very strenuously and ably contended
in the case of
by the Counsel for hi
Master that the
Court had a right to qualify the
terms and conditions upon which he should be held

Lofft .12.

as a Servant . --
Mr. Dunning agreed to
Mr. Alleyne's
observation, that the municipal regulations of one
country are not binding on another, but goes
on to say --"Does the relation cease where the modes
of creating it, the degrees in which it subsists
vary"?"I have not heard, nor I fancy is there
any intention to affirm the relation of Master
and Servant ceases here, I understand the municipal

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relations differ in different Colonies according to humanity and otherwise"--"Contract is not the only
means of producing the relation of Master and
Servant; the Magistrates are empowered to oblige
persons under certain circumstances to serve."
"Villenage has existed in this Country -- and are not
the Laws existing by which it was created?" --
"Whichever way it was formed, the consequences
good or ill, follow from the relation, not the manner
of producing it. I may observe there is an establishment by which Magistrates compel idle
or dissolute persons of various ranks and denominations to serve. In the case of apprentices
bound out by the Parish, neither the trade is left
to the choice, of those who are to serve, nor the
consent of parties necessary; no contract therefore
is made in the former instance none in the
latter; the duty remains the same. The case of
contract for life quoted from the Year books, was
recognized as valid; the solemnity only of an instruments judged requisite: Your Lordships (this
variety of service, with divers other sorts, existing
by law here) have the option of classing him
amongst those Servants which he most resembles in condition: Therefore (it seems to me) are
by law authorized to enforce a service for life in
the Slave, so not incompatible but agreeing with
one laws that being a part of his situation before
his coming hither, which, as not incompatible
but agreeing with our laws may justly subsist
here: I think, I might say, must necessarily
subsist, as a consequence of a previous right

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Mr. Stewart, which our institutions, not dissolving confirm. I dont insist on all the consequences of villenage, enough is established for our
cause, by supporting the continuance of the service".
legislature, when it finds a relation existing
supports it in all suitable consequences, without
using to inquire how it commenced. A Man enlists for no specified time; the contract in construction of law is for a year: The
when once the man is enlisted interposes annually to continue him in the service, as long
as the public has sued of him &c.." --"The
opinion cited, to prove the Negroes free on coming
hither, only declares them not saleable, does
not take away their service." -- In answer to
this reasoning
Serjeant Davy in the course of his
argument, among other things mentions the
case of
Thorn &
Watkins -- as follows --

In the case of
Thorn and
Watkins in which
your Lordship was Counsel, determined before

Lord Hardwicke. --"A Man died in
England , with
effects in
Scotland; having a brother of the whole
and a Sister of the half blood, the latter by the
laws of
Scotland could not take. The Brother
applies for administration to take the whole estate,
real and personal, into his own hands, for his own
use; the sister files a bill in
Chancery . The then
Attorney General puts in an answer for the
Defendant; and affirms the estate as being in

Scotland , and descending from a Scotchman
should be governed by that law --
Lord Hardwicke over--ruled the objection against the

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sister's taking, declared there was no pretence for
it, and spoke nearly in the following words.--
Suppose a foreigner has effects in our Stocks & dies
abroad; they must be distributed according to the laws
not of the place where his effects were, but of that
to which as a subject he belonged at the time
of his death. All relations governed by municipal
laws must be so far dependent on them, that if
the parties change their Country, the municipal
laws give way, if contradictory to the political
regulations of that other Country. -- In the
case of Master and Slave being no moral
obligation, but founded on principles and
supported by practice, utterly foreign to the
laws and customs of this Country the law
cannot recognize such relation".

Lord Mansfield
in giving the opinion of
Court says as we have seen. --"The difficulty
of adopting the relation, without adopting
it in all its consequences is indeed extreme"
--"We have no authority to regulate the conditions
in which law shall operate".vide ante p.23.b.24

The Question therefore before this
Court is simply
this -- Whether any dominion, authority or
coercion can be exercised in this
on a Slave according to the municipal laws
of those Plantations in which Slavery is established as lawful.

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This will necessarily lead us into an inquiry,
By what laws is this
Province governed, or
to what laws is it subject? and to facilitate
this inquiry it must first be determined whether
it is to be considered in the light of a Colony
claimed by right of occupancy, by finding it desertand uncultivated, and peopling it from
Mother Country -- or as gained by conquest
or ceded by treaty. --

Cowp. 204

Campbell vs.

There is in
Cowpers' Reports
an elaborate & learned
argument by
Lord Mansfield
to prove the Kings
legislative authority by his prerogative alone
over a ceded or conquered Country, from which
I think it may be fairly deduced that this

Province is not to be considered in that light.
In the course of the argument
Lord Mansfield

"The Authority of two great names has been
cited, who take the proposition for granted.
In the year
1722 , the
Assembly of
Jamaica being refractory, it was referred to
Sir Philip
Yorke and
Sir Clement Wearge, to know what
could be done if the
Assembly of
obstinately continue to withhold all the usual
supplies"-- They reported thus --"If
was still to be considered as a conquered Island
the King had a right to levy taxes upon the
Inhabitants; but if it was to be considered
in the same light as the other Colonies, no

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"tax could be imposed on the Inhabitants but by
Assembly of the Island,
or by an Act of
"They considered the distinction in law as clear,
"and an indisputable consequence of the Island
"being in the one State or the other. Whether
"it remained a conquest, or was made a Colony
"they did not examine. I have upon former occasions traced the constitution of
Jamaica, as far
"as there are papers and records in the offices, and
"cannot find that any Spaniard remained
"upon the Island so late as the restoration,
"if any, there were very few. To a question I
"lately put to a person will informed and acquainted
"with the Country, his answer was, there were no
"Spanish names among the white Inhabitants
"-- there were among the Negroes --
King Charles
"the 2d. by Proclamation invited Settlers there,
"he made grants of lands: he appointed at first
"a Governor and Council only :afterwards he
"granted a Commission to the Governor to call

"The Constitution of every Province immediately under the King has arisen in the same
manner; not from grants, but from Commissions to call
Assemblies: and therefore all
the Spaniards having left
the Island or been
driven out
Jamaica from the first settling
was an English Colony, who under the Authority
of the King planted a vacant Island belonging
to him in right of his Crown -- like the cases


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"of the Island of
St. Helena and
St. John mentioned
Mr. Attorney General"

If the Islands of
Jamaica and
St. John are to be
considered in the light of vacant or uninhabited
Countries discovered and planted by English Subjects
there can remain no doubt that this Province
is to be considered in the same light.


Judge Balckstone says "if an uninhabited
Country be discovered and planted by English
Subjects, all the English Laws then in being,
which are the birthright of every subject, are
immediately then in force" -- he cites

Salk. 411.

Where it is laid down per
Holt Ch. Just
In case of an uninhabited Country newly found
out by English Subjects, all Laws in force in
England are in force there. --"But this," says
Judge Balckstone
"must be understood with very many
and very great restrictions. Such Colonists carry
with them only so much of English Law,
as is applicable to their own situation and,
the condition of an infant Colony; -- such for
instance as the general rules of inheritance
and of protection from personal injuries".+

+ The common law of

England has been
claimed and recognized
as the birth right of
every British Subject
in the Colonies and has
been so considered as well
by the most eminent
Lawyers in
as by the
Supreme Courts
of Judicature in most
if not all the
Colonies in
N. America
before the Revolution. The
Act of federation which
established the present Constitution
of the
United States recognizes
the Common law of
as the basis of it.

It will not then be contended but that the Inhabitants of this
Province are subject to and entitled to the benefits & privileges of the Common
Law of
England .

If so, the same judgment must be given
in this case as in the case of
Somerset in

England , unless Slavery is established by some

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municipal law in force here.

It will not be contended that any of the local
laws passed by the legislatures of the different Colonies and Islands, are binding here;
Perhaps it may be said that the Custom of tolerating slavery in many of the Colonies is binding
in this Province. Let us examine this position

D.&St: D. 1.C.7.

"By the old custom of the Realm, says
St. Germin,

no man shall be taken, imprisoned, nor
otherwise destroyed but he be put to answer by the
law of the land, and this custom is confirmed
by the Stat: of Magna Charta. cap. 26."

Co. Lit: 115.b.

"Every general custom of the Realm is a part of the Common Law"

It will not be denied that this Part of the Common extends to this
Province, as an English Colony
planted by English Subjects; -- it is equally clear
that this law cannot be altered, buy by some
direct positive law of a legislature having authority
for that purpose, either the
Parliament of
Britain, or the
General Assembly of the Province.


"The Common law, says
Lord Coke
has no Controller
in any part of it, but the
high Court of Parliament
and if it be not abrogated or altered by
it remains still as
Sir Thomas Littleton
--"The Common law
in the statute of Magna Charta and other
ancient statutes, which for the most parts are affirmations of the Common law".

"Bl. Com.74.

It is true that particular customs, or laws which
affect only the Inhabitants of particular districts
are also a branch of the unwritten laws of
England .

Co. Lit.113.

"Consuetudo ex certa causa rationabili usitata privat
communem legem.
Quia consuetudo contra rationem
introducta, potius usurpatio, quam consuetudo, appellari
Consuetudo proescripta et legitima vincet legem".

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All particular Customs must be particularly and as
well the existence of such customs must be shown
as that the thing in dispute is within the Custom

"When a custom is actually proved to exist, the
next inquiry is into the legality of it; for if it
is not a good custom it ought to be no longer
used -- Malus usus abolendus est is an established
maxim of the law". --

With regard to the existence of the Custom of Slavery in this
Province -- It is presumed it never
has existed and that of course no proof can be
produced of it.

That some Masters have brought Slaves here
is true, and that the Slaves have in some instances
continued with their Masters, without disputing
the right of their Masters to their service is
also true. -- But it must also be admitted
that the Slaves have in many instances controverted this right, and have been manumitted,
or indented themselves voluntarily to serve for a
term of years upon condition of being discharged at the expiration of it.
The question is now for the first time brought forward for a legal decision in this Court.

Its merits have never yet been discussed, nor
any determination had upon it.

No Act of
Assembly has ever passed in this

Province in the smallest degree recognizing any
such Custom or condition as Slavery. -- On the
other hand, the general opinion, if that were of any
consequence, I believe I may venture to assert, is against
its admission or toleration here.

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Will it be contended because Indians & Negroes were
made Slaves in
Barbados and
Virginia in the last
century and laws were made there establishing this
Condition, that custom and those laws are
binding here?

Will the existence of such a custom and such
laws in any other of the English Colonies, render
them binding here?

It may as well be asserted that the local laws
and Customs of those Colonies in every other instance
and respecting every other object are in force here.
But perhaps it will be said, that the Laws and
Customs of
Nova Scotia are binding here, and
that Slavery is recognized by the Laws of that


I deny their existence in that
Province, there
is no Act of
Assembly of the
Province recognizing
any such state or condition there, nor do we
know of any decision of their
Supreme Judicial
Court upon the Point. The presumption is violent that there has been none, and that the
Practice there has been the same that has obtained in this Province.

But it must be observed that whatever number of Slaves may have been brought to that
or this
Province, and continued in a state of
servitude, this will not affect the right,
any more than the same practice in
before the case of
Somersett was determined; at the
time of which decision there were 14 000 or 15 000
Slaves of the same description in different Parts
of the Kingdom.

+ Upon inquiry I am
well informed, that an
attempt was once made
in the
House of Assembly
N. Scotia to introduce
a clause of the kind
into a bill for the Regulation of Servants, but
that it was rejected
by a great majority.
That agreeably to the
practice which formerly
obtained in cases of Villenage
England , a summary
decision of the question
of Slavery in that
has always been resisted
and the party claiming
to his Action, & that several
trials have been had
in which the jury has
decided against the
masters, which have so
discouraged them that
a limited service by Indenture has been very
generally substituted
by mutual consent.
That the general question
respecting the Slavery
of Negroes has been
often agitated there
in different ways but
has never received
a direct decision; that
although the
Court there
has avoided an adjudication of the principal
point, yet as they required
the fullest proof of the
master's Claim in
point of fact, it has
been generally found


Page Image

very easy to succeed
in favour of the Negro,
by taking some
exception collateral
to the general question,
and therefore that
course has been taken.
In a late case in
Province a black
woman was brought
before the
Court on
Habeas Corpus , from
the jail at
Annapolis ,
the return being defective
she was discharged,
but as she was claimed
as a Slave, the
Court intimated that an Action
should be brought to
try the right, and one
was brought against
a person who had received
and hired the Wench.
At the trial the Plt:
proved a purchase of
the Negro in
New York
as a Slave, but as he
could not prove that
the Seller had a legal
right to dispose of
her, the
Court directed
the Jury to find for
the Deft. which they
readily did.
But let us inquire into
the legality of the Custom
of Slavery where it does

Had the Condition of Slavery been recognized
as lawful in that
Province, there would
have been regulations, remedies & powers
provided by Acts of
Assembly, as in all the other
Colonies where Slavery was established or recognize Therefore as was said by
Mr. Hargrave

in the case of
-- "The most violent
presumption against it, is the silence of the
laws, were there nothing more".

But even admitting there had been a decision
of the
Supreme Court of
Nova Scotia in Support
of Slavery, such a decision could be no more
binding here than any other decision they
may have made upon any other question.
If however the existence of the Custom
of Slavery in
Nova Scotia is material to the
establishment or support of Slavery in this

Province, it is indispensably necessary it should
be proved.

When this shall be proved, the next inquiry
will, be into the legality of it. + Vid margin of the preceding page
et ultra.

To make a particular custom good the

Bl.Com. 76.

following requisites, says
Judge Blackstone

are necessary.

1. That it have been used so long, that the
memory of Man not to the contrary
so that if any one can the beginning of
it within legal memory, that is within

Page Image

any time since the first year of the Reign of

King Richard the First;it is no good

Now as no English Colonies were in existence in
America till since the commencement of the
17th: Century
the custom contended for must have commenced since
that time, and must therefore be void.

2. It must have continued. -- As the custom in
question could have had no legal commencement,
it can have had no legal continuance.

3. "It must have been peaceable & acquiesced in.
for as customs owe their original to common
consent, their being immemorially disputed either
at law or otherwise, is a proof that such consent was wanting".

The custom in the present instance + has been

+ never obtained & of course
never had continuance
in the
Province of N. Scotia,
the Inhabitants of which
equally with us claim
the Common Law of

England as their birth
right, and it

disputed & has not been acquiesced in, in this

Province, from it's erection to the present day.
4. Customs must be reasonable, or rather taken negatively they must not be unreasonable, quia
consuetudo contra rationem introducta, potius
usurpatio quam consuetudo, appellari debet.

Lofft. 19

-- Now this custom of American Slavery, says

Lord Mansfield ,
"is of such a nature, that it
is incapable of being introduced on any reasons moral or political: It is so odious that
nothing can be suffered to support it, but
positive law". And I may add it is such an usurpation upon the natural rights of mankind
that no human laws can justify or support it.


Page Image

5. Customs must be consistent. Now the Custom
insisted upon even if good in other respects is utterly
inconsistent, with the
ancient and immemorial Customs of the Common law, which are a part of the law of this

If it shall be said that a decision in favour of
the Negroes in this
Province, would do great in
:justice to their Masters who have brought them
here in full faith in the
Government of the

Country, that they should be protected in the
enjoyment of this as well as their other

The same objection, as we have seen, was
made in
England in the case of

but what said the Court to it -- "The settling

Lofft. 17

14,000 or 15,000 Slaves men at once free by a solemn opinion is much disagreeable in the
effects it threatens, L50 a head may not
be a high price -- then follows a loss to the
Proprietors of above L700,000 sterling. --
But if the parties will have judgment,
fiat justitia, ruat coelum . Let justice be
done whatever be the consequences. -- An
application to
Parliament , if the Merchants
think the question of great commercial concern,
is the best and perhaps the only method of
settling the question for the future."


Page Image

Now this has been a question agitated from the
very origin of this
Province; and if there were
any thing like a general acquiescence in the
toleration of Slavery here, is it not to be presumed that some Act of
Assembly would have
been passed, or at least been attempted, by
which the rights of the Master would have
been recognized and regulated? -- Does not
the silence on this subject afford a violent
presumption, that there is no such acquiescence in it, except of the very few who are
the owners of Slaves in the
Province? --
And will this Court under these circumstances declare Slavery to be a part of the
law of land, declare it to be an immemorial usage, of uniform, uninterrupted,
continuance, just and reasonable in itself,
and consistent with the immemorial customs
and usages of the Common law which are
our birthright? -- Should this be the case,
we shall have little reason to boast of the
Constitution, in the defence of which we pride
ourselves in having done and suffered so
much. -- Will not the Court rather say in
the words of
Lord Mansfield
inconveniences may follow from a decision

Page Image

we cannot say this case is allowed by the
law of this
Province, and therefore the Black
must be discharged.

There is not even the plausible ground in support of
the practice in this
Province, which has been
adduced in its justification in other Plantations
where the culture of Sugar and other Products
of the tropical climates, is said to make the
use of Slaves necessary. -- Under a conviction
of this truth in addition to the other much
more important reasons which have been suggested in the course of this Argument; Slavery
has been abolished in all the
Eastern States
of the
United States of America , since their
independence, and even in
Virginia , a law
was passed so long ago as the year
forbidding the future importation of Slaves
into that State. -- Self -- preservation rendered it
inexpedient in that state immediately to abolish it altogether; and may perhaps justify
it's continuance for some time longer in other
parts of
America and the
West Indies , where
the same reason operates on account of the
number of the Slaves. But when Efforts are
making in every Country where it has been
introduced, for it's eventual abolition, shall
it be admitted here as a necessary part of the
original Constitution of an English Colony, without any

Page Image

reason moral or political to justify it? --
Were we for a moment to place ourselves in the
situation of the unhappy Africans, and suppose
ourselves kidnapped and transported and sold a
Slaves by the Subjects of another Nation, and
there is a nation, whose strides to universal domination if not successfully checked, may not
perhaps terminate less fatally for us; would
all the reasoning and pretences which he hear
urged in favour of the Slavery of this unfortunate
people, reconcile us to our fate? -- Let every
man's reason and feelings give an answer to
this question. --

But perhaps it will be said, the liberty of
these Slaves has been originally forfeited by the
crimes they have committed in their own Country in the same manner as for offences in other
Countries labour for a certain period is imposed
and in some places, perpetual labour, and
thus a right to their servitude is acquired.
This if true in any instance, is very rarely
the case, but admitting it were so, it is an
acknowledged principle of general law -- "That

Lofft. 5..

the laws of one Country have not whereby to
condemn offences supposed to be committed against those of another", in consequence of
which agreeably to which we have the account cited
in the Case of
of some Prisoners Criminals who having escaped execution in

Page Image

were set free in
France. -- upon which it is
forcibly observed by
Serjeant Davy . -- "To punish not
even a criminal for Offences against the laws of
another Country, to set free a galley--slave, who is
a Slave by his crime, and make a Slave of a
Negro who is one by his complexion, is a cruelty
and absurdity which I trust will never take
place here -- such as, if would make

England a disgrace to all the Nations upon
Earth; for reducing a man, guiltless of any
offence against the Laws, to the condition of
Slavery the worst & most abject state of human

The only question then that can remain is
whether -- The Condition of Slavery is established
by positive law, by provision binding for this
purpose, in any Acts of the
British Parliament?
The only Acts that have been passed relating
to the subject are those that have been already
observed upon, and upon these the inquiry is --
Whether those Acts recognizing the Slavery of
Negroes as existing in some of the Plantations, or to put
the case in the strongest terms, supposing considering it as existing in all of them by the
local and municipal laws, will establish
that condition in each & every Colony and Plantation,
whether forbidden abolished or recognized, by
the municipal laws of such Plantation or not?

Page Image

The establishment of Slavery is most certainly local,
its consequences local, and it is the law only of
such plantations, in which it has been established
by local laws.

To make a bare recognition of the existence of such
laws in the Plantations in the Preamble of an Act of
Parliament, as
tantamount to the establishment of those laws in
all the Plantations, whether such laws existed or
not independently of such Act, would be violating
every legal principle of construction. -- This
consequence would inevitably follow, that in
case the local laws of any of the
forbad the introduction of Slaves, or declared
them free upon their importation, the Act of

Parliament would operate as a repeal of those
laws, and thus it would be out of the power of
the local
legislature to prevent the condition
of Slavery being established in any Colony; or
even to ameliorate its condition, as the Act of

Parliament recognizes the State of Slavery with
all its consequences of transmission & alienation.
An adventurer from
Great Britain to the Coast
Africa, might bring a cargo of Slaves into
such Colony, and sell them as Slaves in defiance
of all the municipal laws made to declare
them free.

It would be reversing every principle of Law
English law, to say that the Presumption is in favour
of Slavery, when by that law it is declared to be so

Page Image

odious, that nothing but positive law can be suffered
to support it.

Bl. Comp.88

Christian's Notes

"It was one of the Laws of the twelve Tables of
that whenever there was a question between liberty
and slavery, the presumption should be on the side
of liberty". "This excellent principle", says Professor,

our law has adopted in the construction
of penal Statutes, wherein the decision must be
on the side of lenity and mercy in favour of
natural right and liberty".

Judge Blackstone
tells us in his treatise
on villenage tinares, "That the law is ready to catch

at any thing in favour of liberty." and among
the rules for the construction of statutes it is laid
down: "if there arise any absurd consequences


manifestly contradictory to common Reason
out of Acts of
Parliament, they are with regard
to those consequences void". upon which
Dr. Christian
remarks, "If the expression will admit of
doubt, it will not then be presumed that
construction can be agreeable to the intent of the

legislature, the consequences of which are unreasonable

What can be more contradictory to reason & to every
principle of justice, than to make the Acts of

Parliament in the present instance operate to
establish and inflict so severe a condition & penalty
as Slavery, in any part of the dominions, where,
no such condition existed; when the words can be
so fairly construed to extend to those Plantations
only, where Slavery was established by law, and where
the nature of the Climate, and of its products was thought to render
the use of Slaves necessary?


Page Image

With regard to the late Act of
Parliament passed
in the year
1790, it does not apply to the
present case, as it is not pretended that the
Negro in question, was brought here under
the Authority of that Act, nor is it to be supposed that any case will ever arise in this
Province under it,
as no Negroes have ever been, or ( I
trust that the decision in this cause will determine )
ever can be, imported here as Slaves under that Act.
But the same rule of construction would apply
to that Act, that has been contended for, with
regard to the others, more especially as at the
it authorizes the importation into the British
Provinces of any Negroes, from any of the
territories belonging to the
United States, when
in fact at the time the Act passed, the Slavery
of Negroes was abolished in several of those
States. -- As the Act therefore could apply
only to those States in which this Slavery was
established by law, as places from whence such
negroes might be brought, so it can reasonably
be supposed to apply only to such of the British
Plantations, as had adopted and recognized this
condition of Slavery, as places into which they
might be legally imported under the Act.

-- Recapitulation. --


Page Image

This case was argued at the
Supreme Court at
Fredericton at the Hilary Term in
Feby. 1800

Mr. Street for the Slave

Mr. Chipman
Atty. Genl. Mr. Bliss

Mr. T. Wetmore for the Master

Mr. J.M. Bliss

Mr. Peters

Mr. Botsford
Court divided -- the
Chief Justice & Judge
Upham in support of the return.

Judge Allen &
Judge Saunders against its sufficiency --
No judgment entered.
The Writ and return were as follow --

George the Third by the Grace of God of
Great Britain

France and
Ireland King Defender of the Faith &c.
Caleb Jones of the Parish of
Saint Marys in the
County of York Esquire. Greeting We command
you that you have the body of
Ann otherwise called

Nancy a Black woman detained in your Custody as
it is said together with the cause of her being detained
before our Justices of our
Supreme Court at the Court
House in
Fredericton on
Thursday the eighteenth day
of July instant at
twelve O'Clock on the forenoon of the
same day to do and receive all and singular there
things which our said justices shall then & there consider
of her in this behalf and have then there this Writ.
George Duncan Ludlow Esquire at
sixteenth day of July in the Thirty ninth Year of
our Reign Signed
Odell ...

Page Image

Caleb Jones within named in obedience to the
within Writ of the Lord the King bring & here into
Court the body of the within named
Ann or
a Black woman and hereunto certifies that the causes
of detaining the said Ann or
Nancy appears in the schedule to this Writ annexed.
Caleb Jones

Caleb Jones of the Parish of
Saint Marys in the
County of York Esquire in obedience to the Kings
Writ of Habeas Corpus to him directed and hereunto
annexed humbly cause to the Court of the Lord
the King why the said
Caleb Jones detained the Negro
a Black woman
Ann otherwise called
Nancy in
the same writ named as follows. That long before
the coming of the Kings Writ aforesaid to him the
Caleb Jones there were and still are slaves to
a great number in
Africa and the trade in them
between the African Coast and the Colonies Plantations and Islands now and heretofore belonging to the
Crown of
Great Britain was and is authorized and
sanctioned by a variety of Statutes of the Kingdom of

Great Britain in that case made & provided that the
Caleb Jones formerly and before and during and
after the War between
Great Britain and the
United Colonies which terminated in the separation
of the same Colonies from the Mother Country the
Caleb Jones was an Inhabitant and Freeholder
of and in the Late Province now
state of Maryland
then one of the Colonies belonging to the Crown of

Great Britain aforesaid. That the said
Ann or

Page Image

Nancy was at the time of her birth and ever since
hath been a female Negro Slave or servant for life
born of an African Negro Slave and before the removal
of the said
Caleb Jones from
Maryland to
Brunswick was & became by purchase the Lawful
and proper Negro Slave or Servant for life of him the
Caleb Jones and so being by the Laws of
and consistently with the laws of all his Majestys Colonies and plantations in
America the proper Negro
Slave or servant for life of him the said
Caleb Jones
That the said
Caleb Jones in the Year of our Lord
thousand seven hundred and eighty five brought
and imported the said
Ann or
Nancy his Negro Slave
or servant for life into this province of
New Brunswick
as it was lawful for him to do and has always had ...
held the said
Ann or
Nancy as his proper Negro Slave
or servant for life in the said Province of
New Brunswick
as by Law he has good right and authority to do And
the said
Caleb Jones now renders her the said
Ann or

Nancy to the orders of the Court as by the said Writ
he is commanded.

Caleb Jones


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Court of Kings Bench wherein it is Attempted to demonstrate the Present Unlawfulness of
Slavery in
England; from the Case of Somerset and Knowles,


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Reverend Honourable Sr. Henry Hobart,
Lord Chief Justice of His Majesties Court of Common Pleas;

London, Printed by

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Printed by
Great Britain Courts, 1st edition, 3 Volumes.

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Somersett and
Court of King's Bench;

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Sir John Holt: In the Case of
Smith Versus
Brown and
Holt's Report;


Sir Thomas Raymond:
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of King's Bench Common Pleas and Exchequer;


Sir Edward Coke: First Part of the Institiutes of the Laws of
England: Commentary on Sir Thomas
Littleton's Tenures;

London, Printed by
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Doctor of Divinity and a Student of the Laws of

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Commercial Grammar and Present State of Several Kingdoms of the World;

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United States
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John Millar: On Ranks;

Habeas corpus: A court petition which orders that a person being detained be produced
before a judge for a hearing to decide whether the detention is lawful.

Ipso facto: as a matter of fact; something which, while not necessarily lawful exists in fact.

Sui juris: a person who posses full civil rights and is not under any legal incapacity.

Jure civili: by the civil law.

Peculium: Under Roman law, this is the private property that might be held by a slave,
wife, or sone separate from the property of the father or master.

Obsta principus: To withstand the first approaches or encroachments.

Regardant: term applied in feudal law to a villein annexed to a manor.

Jus gentium: the law of nations.

de navito habendo: a writ which lay for a lord directed to the sheriff, commanding him to
apprehend a fugitive villein, and restore him to his lord.

Jura naturae sunt immutabilia: The laws of nature are unchangeable.

Fiat justitia, ruat coelum: Let right be done though the heavens should fall.

per quod servitium amisit: whereby he lost the service.

per quod: whereby.

ex relatione: upon relation or information.

lex loci: the law of the place.

Sed non allocatur: But it is not allowed.

per totam curiam: By the whole court.

Vide ante: refers to a previous passage in a book.

Consuetudo ex certa causa rationabili usitata privat communem legem: A custom grounded
on a certain and reasonable cause, supersedes the common law.

Quia consuetudo contra rationem introducta potius usurpatio, quiam consuetudo appellan
debet: Because a custom introduced against reason ought rather to be called a usurpation
than a custom.

Consuetudo proescripta et legitima vincet legem: A prescriptive and lawful custom
oversomes the law.

Malus usus abolendus est: A bad or invalid custom ought to be abolished.