such a consideration. Mr. Locke has framed another kind of argument against slavery *mancipia, quasi manu capti.' The conqueror, say the civilians, had a right to the life of his captive; and, having spared that, has a right to deal with him as he pleases. But 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. But, secondly, it is said that slavery may begin 'jure civili; when one man sells himself to another. This, if only meant of contracts to serve or work for another, is very just: but when applied to strict slavery, in the sense of the laws of old Rome or modern Barbary, is also impossible. Every sale implies a price, a ' quid pro quo,' an equivalent given to the seller in lieu of what he transfers to the buyer: but what equivalent can be given for life, and liberty, both of which (in absolute slavery) are held to be in the master's disposal? His property also, the very price he seems to receive, devolves ipso facto to his master, the instant he becomes his slave. In this case therefore the buyer gives nothing, and the seller receives nothing of what validity then can a sale be, which destroys the very principles upon which all sales are founded? Lastly, we are told, that besides these two ways by which slaves 'fiunt,' or are acquired, they may also be hereditary servi nascuntur;' the children of acquired slaves are, jure nature' by a negative kind of birthright, slaves also. But this, being built on the two former rights, must fall together with them. If neither captivity, nor the sale of one's self, can by the law of nature and reason reduce the parent to slavery, much less can they reduce the offspring. "Upon these principles the law of England abbors, and will not endure the existence of, slavery within this nation: so that when an attempt was made to introduce it, by statute 1 Edw. 6, c. 3, which ordained, that all idle vagabonds should be made slaves, and fed upon bread, water, or small drink, and refuse meat; should wear a ring of iron round their necks, arms, or legs; and should be compelled by beating, chaining, or otherwise, to perform the work assigned them, were it never so vile; the spirit of the nation could not brook this condition, even in the most abandoned rogues; and by contract (o); and the substance of it is, that a right of preserving life is unalienable; that freedom from arbitrary power is essential to the exercise of that right; and therefore, that no man can by compact enslave himself. Dr. Rutherforth (p) endeavours to answer Mr. Locke's objection, by insisting on various limitations to the despotism of the master; particularly, that he has no right to dispose of the slave's life at pleasure. But the misfortune of this reasoning is, that though the contract cannot justly convey an arbitrary power over the slave's life, yet it generally leaves him_without a security against the exercise of that or any other power. I shall say nothing of slavery by birth; except that the slavery of the child must be unlawful, if that of the parent cannot be justified; and that when slavery is extended to the issue, as it usually is, it may be unlawful as to them, even though it is not so as to their parents. In respect to slavery used for the punishment of crimes against civil society, it is founded on the same necessity, as the right of inflicting other punishments; never extends to the offender's issue; and seldom is permitted to be domestic, the objects of it being generally employed in public works, as the galleytherefore this statute was repealed in two years afterwards. And now it is laid down, that a slave or negro, the instant he lands in England, becomes a freeman; that is, the law will protect him in the enjoyment of his person, and his property. Yet, with regard to any right which the master may have lawfully acquired to the perpetual service of John or Thomas, this will remain exactly in the same state as before; for this is no more than the same state of subjection for life, which every apprentice submits to for the space of seven years, or sometimes for a longer term. Hence too it follows, that the infamous and unchristian practice of withholding baptism from negro servants, lest they should thereby gain their liberty, is totally without foundation, as well as without excuse. The law of England acts upon general and extensive principles: it gives liberty, rightly understood, that is, protection, to a Jew, a Turk, or a Heathen, as well as to those who profess the true religion of Christ; and it will not dissolve a civil obligation between master and servant, on account of the alteration of faith in either of the parties: but the slave is entitled to the same protection in England 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." Vol. 1, p. 423. what of very subtle distinction, if not rather of In these passages, there appears to be some contradiction. slaves are in France. Consequently this kind of slavery is not liable to the principal objections, which occur against slavery in general(g). Upon the whole of this controversy concerning (4) Some writers there are, who deduce the lawfulness of domestic slavery from the practice of it amongst the Jews, and from some passages in the Old Testament which are thought to countenance it. See Vinn. in Instit. Heinecc. ed. l. 1, t. 3, p. 31. There are others who attempt to justify slavery by the New Testament, because it contains no direct precepts against it. See Tayl. Elem. Civ. L. 434. I shall not attempt to examine either of these opinions. Hargrave. In the discussions respecting the African slave trade, which were maintained during several years preceding the abolition of that traffic (by stat. 46 Geo. 3, c. 52, see also c. 119, and 51 G. 3, c. 23), the authority of the scriptures was appealed to by the oppugners and defenders of the trade. On June 24, 1806, the learned and eloquent Dr. Horsley, bishop of St. Asaph, delivered in the House of Lords upon the subject, a very powerful speech, from which I have extracted the following passages. "My rev. brother” (the bishop of London) "told your lordships, that perpetual slavery was not permitted by the Jewish law. That a native Jew could be held in slavery for seven years only, at the longest. For he had a right to his freedom upon the first return of the sab. batical year. And that a foreign slave purchased in the market, or captivated in war, could be held in slavery for fifty years only, at the longest. For the foreign slave had a right to his freedom upon the first return of the year of Jubilee. And from these premises, my rev. brother concluded, that perpetual slavery was unknown among the Jews. "I confess, I was carried away by the fair appearance of my rev. brother's arguments, till, to my great surprise and his utter confusion, the noble earl (of Westmoreland) rose, with his Bible in his hand, and quoted chapter and verse against him! "My lords, with respect to the native Hebrew slave, we have this law, which was quoted by my rev. brother: If thy brother, an Hebrew man, or an Hebrew woman, be sold unto thee, and serve thee six years, then in the seventh thou shalt let him go free from thee. And when thou sendest him out free 'from thee, thou shalt not let him go away empty. Thou shalt furnish him liberally out of thy flock, and out of thy flour, and out of thy wine-press. Of that wherewith the Lord thy God hath blessed thee, thou shalt 'give unto him.' Deut. xv. 12-14. "And with respect to the foreign slave, we have this law, quoted likewise by my rev. brother: Thou shalt number unto thee seven 'sabbaths of years, forty and nine years. Then 'shalt thou cause the trumpet of the jubilee to 'sound throughout all the land. And ye sball 'hallow the fiftieth year, and proclaim liberty slavery, I think myself warranted in saying, that the justice and lawfulness of every species of it, as it is generally constituted, except the limited one founded on the commission of 'throughout all the land, to all the inhabitants 'thereof.' Lev. xxv. 8-10. "The manumission of the Hebrew slave on the seventh year, was provided for by the other law. Under the expression, therefore, of all the inhabitants, foreign slaves must be comprehended; for none but foreign slaves could remain to be manumitted in the fiftieth year. My lords, there is a circumstance not touched upon by my rev. brother; but there is a passage in the law, which I have always considered, as a strong argument of the lenity, with which slaves were treated among the Jews, and of the efficacy of the provisions the law had made, to obviate the wrongs and injuries to which the condition is obnoxious.-My lords, I am afraid I cannot, by memory, refer exactly to the place. But the noble earl there, with his Bible, I am sure will have the goodness to help me out and turn up the passage for me. My lords, it is a passage, in which the law provides for the case of a slave, who should be so attached to his master, that when the term of manumission, fixed by the law should arrive, the slave should be disinclined to take advantage of it, and wish to remain with his master. And the law prescribes the form, in such case to be used, by which the master and the slave should reciprocally bind themselves, the slave to remain with his master for life, and the master to maintain him. This I have always considered as a strong indication of the kindness, with which slaves were treated among the Jews; else whence should arise that attachment, which this law supposes ?" [Query if the bishop had in his mind the beginning of the 21st chapter of Exodus, if so, the words are he shall serve him for ever."] "But we are all in the wrong, it seems-my rev. brother and I-we reason from specious premises, but to false conclusions. The noble earl has produced to your lordships a passage in the Levitical law, which enacts that the foreign slave should be the property of his master for ever. Whence the noble earl concludes that the perpetual servitude of foreign slaves was actually sanctioned by the law. But, my lords, I must tell the noble earl, and I must tell your lordships, that the noble earl has understanding at all of the technical terms of the Jewish law. In all the laws relating to the transfer of property, the words for ever,' signify only to the next jubilee.' That is the longest for ever' which the Jewish law knows with respect to property. And this law, which makes the foreign slave the property of his master for ever, makes him no longer the master's property than to the next jubilee, And, with the great attention the noble earl has given to the laws and history of the Jews, he must know, that when they were carried into captivity, they were told by their prophets, that crimes against civil society, is at least doubtful; | that if in any case lawful, such circumstances are necessary to make it so, as seldom concur, and therefore render a just commencement of it barely possible; and that the oppressive manner in which it has generally commenced, the cruel means necessary to enforce its continuance, and the mischiefs ensuing from the permission of it, furnish very strong presumptions against its justice, and at all events evince the humanity and policy of those states, in which the use of it is no longer tolerated. Universality of domestic Slavery amongst the causes, which contributed to this alteration, none were probably more effectual, than experience of the disadvantages of slavery; the difficulty of continuing it; and a persuasion that the cruelty and oppression almost necessarily incident to it were irreconcilable with the pure morality of the Christian dispensation. The history of its decline in Europe has been traced by many eminent writers, particularly Bodin(s), Albericus Gentilis (t), Potgiesserus (u), Dr. Robertson (w), and Mr. Millar (r). It is sufficient here to say, that this great change. began in Spain, according to Bodin, about the end of the eighth century, and was become general before the middle of the fourteenth century. Bartolus, the most famed commentator on the civil law in that period, represents slavery as in disuse; and the succeeding commentators hold much the same language. However, they must be understood with many restrictions and exceptions; and not to mean, that slavery was completely and universally But however reasonable it may be to doubt the justice of domestic slavery, however convinced we ancients. may be of its ill effects, it must be confessed, that the practice is antient, and has been almost universal. Its beginning may be dated from the remotest period, in which there are any traces of the history of mankind. It commenced in the barbarous state of society, and was retained, even when men were far advanced in civilization. The nations of anti-abolished in Europe. Some modern civilians, quity most famous for countenancing the system of domestic slavery were the Jews, the Greeks, the Romans, and the antient Germans (7); amongst all of whom it prevailed, but in various degrees of severity. By the antient Germans it was continued in the countries they over-run; and so was transmitted to the various kingdoms and states, which arose in Europe out of the Europe ruins of the Roman empire. At length however it fell into decline in most parts of Europe; and amongst the various Decline of slavery in not sufficiently attending to this circumstance, rather too hastily reprehend their predecessors for representing slavery as disused in Europe. The truth is, that the ancient species of slavery by frequent emancipations became greatly diminished in extent; the remnant of it was considerably abated in severity; the disuse of the practice of enslaving captives taken in the wars between Christian powers assisted in preventing the future increase of domestic slavery; and in some countries of Europe, particularly England, a still more effectual method, which I shall explain hereafter, was thought of to perone of the crimes which drew down that judg-fect the suppression of it. Such was the exment upon them, was their gross neglect and violation of these merciful laws respecting manumission. And that, in contempt and defiance of the law, it had been their practice to hold their foreign slaves in servitude beyond the year of jubilee." 66 in America. piring state of domestic slavery in Revival of doEurope at the commencement of mestic slavery the sixteenth century, when the discovery of America and of the western and eastern coasts of Africa gave occasion to the introduction of a new species of slavery. It My lords, although we have no ex- took its rise from the Portuguese, who, in order plicit prohibition of the slave trade in the New to supply the Spaniards with persons able to Testament, we have a most express reprobation sustain the fatigue of cultivating their new of the trade in slaves, even in that milder form, possessions in America, particularly the islands, in which it subsisted in ancient times. Such opened a trade between Africa and America a reprobation of it as leaves no believer at for the sale of negro slaves. This disgraceful liberty to say, that the slave trade is not con- commerce in the human species is said to have demned by the gospel. The reverend prelate begun in the year 1508, when the first impornear me has cited the passage [1 Tim. i, tation of negro slaves was made into Hispaniola 9-10] in which St. Paul mentions men from the Portuguese settlements on the western stealers' among the greatest miscreants. Men- coasts of Africa (y). In 1540 the emperor stealers,' so we read in our English Bible. Charles the fifth endeavoured to stop the proBut the word in the original is adeamodiçais.gress of the negro slavery, by orders that all Andgamedic is literally a slave trader,' and no other word in the English language, but slave trader, precisely renders it. It was indeed the technical name for a slave trader in the Attic law." (r) It appears by Cesar and Tacitus, that the ancient Germans had a kind of slaves be. fore they emigrated from their own country. See Cæs. de Bell. Gall. lib. 6, cap. 13, et Tac. de Mor. German. cap. 24, et 25, et Potgiess. de stat. servor, ap, Germ. lib, 1, cap. 1. VOL. XX. (s) See his book De Republicâ, cap. 5, de imperio servili. (t) Jur. Gent. cap. de servitute. (u) Jur. Germ. de statu servorum. (w) Life of the emperor Charles the 5th, vol. 1. (a) Observations on the distinction of ranks in civil society. See also Tayl. Elem. Civ. L 434 to 439. (y) Ander. Hist. Comm. v. 1, p. 330. D slaves in the American isles should be made free; and they were accordingly manumitted by Lagasca the governor of the country, on condition of continuing to labour for their mas ters. But this attempt proved unsuccessful, and on Lagasca's return to Spain domestic slavery revived and flourished as before (z). | The expedient of having slaves for labour in America was not long peculiar to the Spaniards; being afterwards adopted by the other Europeans, as they acquired possessions there. In consequence of this general practice, negroes are become a very considerable article in the commerce between Africa and America; and domestic slavery has taken so deep a root in most of our own American colonies, as well as in those of other nations, that there is little probability of ever seeing it generally suppressed. The attempt to introduce the slavery of negroes into England exa'mined. Here I conclude my observations on domestic slavery in general. I have exhibited a view of its nature, of its bad tendency, of its origin, of the arguments for and against its justice, of its decline in Europe, and the introduction of a new slavery by the European nations into their American colonies. I shall now examine the attempt to obtrude this new slavery into England. And here it will be material to observe, that if on the declension of slavery in this and other countries of Europe, where it is discountenanced, no means had been devised to obstruct the admission of a new slavery, it would have been vain and fruitless to have attempted superseding the ancient species. But I hope to prove, that our ancestors at least were not so short-sighted; and that long and uninterrupted usage has established rules, as effectual to prevent the revival of slavery, as their humanity was successful in once suppressing it. I shall endeavour to shew, that the law of England never recognized any species of domestic slavery, except the ancient one of villenage now expired, and has sufficiently provided against the introduction of a new slavery under the name of villenage (a) or any other denomination whatever. This proposition I hope to demonstrate from the following consi Arguments to prove, that he law of England will not admit a new slavery. dérations. 1. Argument rom the manner of making title of a villein. law has no provisions to regulate any other slavery, therefore no slavery can be lawful in England, except such as will consistently fall under the denomination of villenage. The condition of a villein bad of a villein. most of the incidents which I bave The condition before described in giving the idea of slavery in general. His service was uncertain and indeterminate, such as his lord thought fit to require; or, as some of our ancient writers (b) express it, he knew not in the evening what he was to do in the morning, he was bound to do whatever he was commanded. He was liable to beating, imprisonment, and every other chastisement his lord might prescribe, except killing and maiming (c). He was incapable of acquiring property for his own benefit, the rule being quicquid acquiritur servo, acquiritur domino' (d). He was himself the subject of property; as such saleable and transmissible. If he was a villein regardant, he passed with the manor or land to which he was annexed, but might be severed at the pleasure of his lord (c) If he was a villein in gross, he was an hereditament or a chattel real according to his (b) See the extracts from them in Co. Litt. 116, b. (c) See Termes de la Ley, edit. of 1567, Voc. Villenage-Old Tenures, cap. VillenageFitzh. Abr. Coron. 17.-2 Ro. Abr. 1.—2 Inst. 45. and Co. Litt. 126, 127. (d) Co. Litt. 117, a.-The words, in pleading seizin of villein-service, are very expres sive of the lord's power over the villein's property. In 1 E. 2, 4, it is pleaded, that the lord was seized of the villein and his ancestors come affaire rechat de char et de sank et de 'fille marier et de eux tailler haut et bas, &c.' The form in 5 E. 2, 157, is, 'come de nos vileynes en fesant de luy notre provost en p'nant de luy rechat de char et de saunk et redemption pur fille et fitz marier de luy et 'de ces aunc et a tailler baut et bas a notre ' volente.' In the first of the above forms there is evidently a misprint; and the reading should be a faire rechat' instead of 'affaire rechat.' As to the word provost' in the second form, it seems to signify plunder,' and perhaps the print should be proie' or proye' instead of provost.' I was led to this con1. I apprehend, that this will ap-jecture by the following proverb in Cotgrave's pear to be the law of England from French Dictionary, qui a le vilain il a sa the manner of making title to a proye.' See Cotgr. edit. of 1678, voc. proye. villein. However, in the Latin Entries the word 'provost' is translated propositum,' which in a barbarous sense of the word may be construed to signify will' or pleasure,' and will make the passage intelligible. In some Entries 'pro The only slavery our law-books take the least notice of is that of a villein; by whom was meant, not the mere tenant by villein services, who might be free in his person, but the villein in blood and tenure; and as the English ་ vost' is translated 'præpositus;' but this word cannot be understood in any sense that will make this use of it intelligible. The forms of pleading seizin of villein-services in the Latin Entries are very similar to those I have extracted from the year-books, See Rast. Entr. 401, a. (e) Litt. sect. 181. villeins. lord's interest; being descendible to the heir where the lord was absolute owner, and transmissible to the executor where the lord had only a term of years in him (f). Lastly, the slavery extended to the issue, if both parents were villeins, or if the father only was a villein; our law deriving the condition of the child from that of the father, contrary to the Roman law, in which the rule was partus sequitur ventrem (g). The origin of villenage is princiThe origin of pally (h) to be derived from the wars between our British, Saxon, Danish and Norman ancestors, whilst they were contending for the possession of this country. Judge Fitzherbert, in his reading on the 4th of Edw. 1, stat. 1. entitled Extenta manerii, supposes villenage to have commenced at the Conquest, by the distribution then made of the forfeited lands and of the vanquished inhabitants resident upon them (i). But there were many bondmen in England before the Conquest, as appears by the Anglo Saxon laws regulating them; and therefore it would be nearer the truth to attribute the origin of villeins, as well to the preceding wars and revolutions in this country, as to the effects of the Conquest (k). After the Conquest many things happily concurred, first to check the progress of domestic slavery in England, and finally to suppress it. The cruel custom of enslaving captives in war being abolished, from that time the accession of a new race of villeins was prevented, and the humanity, policy, and necessity of the times were continually wearing out the ancient race. Sometimes, no doubt, manumissions were freely granted; but they probably were much oftener Decline of villenage. (f) Bro. Abr. Villenage, 60.-Co. Litt. 117. (g) Co. Litt. 123. Antiently our law seems to have been very uncertain in this respect. See Glanv. lib. 5, c. 6. Mirr. c. 2, s. 38. Britt. c. 31. But the writers in the reign of Henry the 6th agree, that our law was as here represented; and from the plea of bastardy, which was held to be a peremptory answer to the allegation of villenage so early as the reign of Edward the 3d, I conjecture, that the law was settled in the time of his father. See Fortesc. Laud. Leg. Angl. c. 42. Litt. sect. 187. -43 E. 3, 4, and Bro. Abr. Villenage, 7. (h) I do not say wholly, because probably there were some slaves in England before the first arrival of the Saxons; and also they and the Danes might bring some few from their own country. (i) See the extract from Fitzherbert's reading in Barringt. Observations on Ant. Stat. 2d edit. p. 237.* (k) See Spelm. Gloss. voc. Lazzi et Servus. Somn, on Gavelk. 65, and the index to Wilk. Leg. Saxon. tit. Servus.. Concerning the antiquity of villenage, see something in "A Discourse of Tenures," said to be written by sir Walter Raleigh, published in Gutch's Collectanea Curiosa, vol. 1, p. 50. extorted during the rage of the civil wars, so frequent before the reign of Henry the 7th, about the forms of the constitution of the succession to the crown. Another cause, which greatly contributed to the extinction of villenage, was the discouragement of it by the courts of justice. They always presumed in favour of liberty, throwing the onus probandi' upon the lord, as well in the writ of Homine Replegiando, where the villein was plaintiff, as in the Nativo Habendo, where he was defendant (7). Nonsuit of the lord after appearance (1) See Lib. Intrat. 176, a. 177, b. & Bro. Abr. Villenage, 66. It seems however, that if after a Nativo Habendo brought by the lord, the villein, instead of waiting for the lord's proceeding upon it, sued out a Libertate Probanda to remove the question of villenage for trial before the justices in eyre, on the return of it he was to produce some proof of his free condition; and that if he failed, he and his pledges were amerced. But this failure did not entitle the lord to any benefit from his Na tivo Habendo, and therefore, if he proceeded in it, and could not prove the villenage, the judgment was for the villein; or if the lord did not proceed, a nonsuit, which was equally fatal to the lord's claim, was the necessary conse quence. See 47 H. S. It. Dev. Fitz. Abr. Villenage, 39. In truth, the requisition of proof from the villein on the Libertate Probanda, and the amercement for want of it, seem to have been mere form; for, as Fitzherbert says, in explaining the effect of the Libertate Probanda, "the record shall be sent before the justices in eyre, and the lord shall declare thereupon, and the villein shall make his defence and plead thereunto, and the villein shall not declare upon the writ de Libertate Probanda, nor shall any thing be done thereupon; for that writ is but a Supersedeas to surcease for the time, and to adjourn the record and the writ of Nativo Habendo, before the justices in eyre." Fitz. Nat. Br. 77, D. Upon the whole therefore it may I think be safely asserted, that in all cases of villenage the ' onus probandi' was laid upon the lord. The several remedies against and for one claimed as a villein are now so little understood, that perhaps a short account of them may be acceptable; more particularly as, by a right conception of them, it will be more easy to determine on the force of the argument drawn against the revival of slavery from the rules concerning villenage. The lord's remedy for a fugitive villein was, either by seizure, or by suing out a writ of Nativo Habeudo, or Neitty, as it is sometimes called. 1. If the lord seized, the villein's most effectual mode of recovering liberty was by the writ of Homine Replegiando; which had great advantage over the writ of Habeas Corpus. In the Habeas Corpus the return cannot be contested by pleading against the truth of it, and consequently on a Habeas Corpus the |