time to time a subject of judicial inquiry during the period referred to. In the year 1640, when the impeachment of the judges of the Star-chamber by the House of Commons, in behalf of John Lilburne, went up to the House of Peers, "it was urged by those that managed the same, that in the eleventh of Elizabeth one Cartwright brought a slave from Russia, and would scourge him, for which he was questioned; and it was resolved that England was too pure an air for slaves to breathe in."

1

Barrington, on the Statutes, 5th ed. p. 313, in referring to this remarks, that the word slave is used in 1 Edw. VI. c. 3, where it is enacted that a vagabond and idle servant shall become a slave to his master. But the 3-4 Edw. VI., c. 6, expressly repeals so much of that act "as tendeth to make vagabonds slaves." (1 Bla. Comm. 424. Keble's Statutes.)

§ 181. The question of the lawfulness of the slavery of negroes in England was frequently, after this date, discussed before the courts. The reports are meagre in stating the arguments upon which they were decided. The earliest of these occurred in 1677, 29 Car. II. in B. R. Butts vs. Penny, which in 2 Levinz, 201, is reported as follows.

1 2 Rushworth, 468. Considering the time at which W. Harrison wrote. 1577an author published in Holinshed, his statements may be here cited, though his style does not inspire much confidence. He says: Hol. Chronicles, Vol. I. 163, "As for slaves and bondmen we have none, naie such is the privilege of our countrie by the especial grace of God, and bountie of our princes, that if anic come hither from other realms, so soone as they set foot on land they become so free of condition as their mas ters; whereby all note of servile bondage is utterlie removed from them, wherein we resemble (not the Germans, who had slaves also, though such as in respect of the slaves of other countries might well be reputed free, but) the old Indians and the Taprobanes, who supposed it a great injurie to nature to make or suffer them to be bond whom she in her wonted course doth product and bring forth free."

The author introduces this in a description of the laboring class, of whom he says: "This fourth and last sort of people, therefore, have neither voice nor authority in the commonwealth, but are to be ruled, and not to rule other," &c.

This passage in Rushworth seems to be the original authority for this celebrated dictum. Barrington, in the place cited, attributes the saying to Lilburne. He also refers to Fitzherbert, as saying with regard to villein "tenures in the same reign, that a notion, originally inculcated by Wickliff and his followers, began to prevail, of its being contrary to the principles of the Christian religion that any one should be a slave; and hence, in more modern times, slavery hath been supposed to be inconsistent with the common law, which is said to be founded upon Christianity;" and adds, "Be the law as it may, the persuasion contributed greatly to the abolishing villenage; and the principle, whether adopted by the common law from Christianity, or otherwise, cannot be too much commended or insisted upon. I cannot, however, but think, that neither the Christian religion, nor the common law, ever inculcated such a tenet.”

"TROVER for 100 Negroes, and upon Non Culp. it was found by special Verdict, that the Negroes were Infidels, and the Subjects of an Infidel Prince, and are usually bought and sold in America as Merchandise, by the Custom of Merchants, and that the Plaintiff bought these, and was in possession of them until the Defendant took them. And Thompson argued there could be no Property in the Person of a Man sufficient to maintain Trover, and cited Co. Lit. 116. That no Property could be in Villains but by Compact or Conquest. But the Court held, that Negroes being usually bought and sold among Merchants, as Merchandise, and also being Infidels, there might be a property in them sufficient to maintain Trover, and gave Judgment for the Plaintiff, nisi Causa, this Term; and at the end of the Term, upon the Prayer of the Attorney-General to be heard as to this Matter, Day was given until next Term."

The same case is reported in 3 Keble, 785, thus:

"Special Verdict in Trover of 10 Negroes and a half find them usually bought and sold in India, and if this were sufficient property on (for) Conversion, was the question. And Thomson, on 1 Inst. 116, for the Defendant, said here could be no property in the Plaintiff more than in Villains; but per Curiam, they are by usage tanquam bona, and go to Administrator until they become Christians; and thereby they are Infranchised: And Judgment for the Plaintiff, Nisi, and it lieth of moety or third part against any Stranger, albeit not against the other Copartners.'

§ 182. In the case Chambers vs. Warkhouse, in the year 1693, 4 Will. and Mary, which was in trover for dog-whelps, the question was whether they could be property, and it was said by the court, "Trover lies of Musk-Cats and of Monkies, because they are Merchandise; and for the same Reason it has

Where villenage is described.

220 Howell's State Tr. 52. Mr. Hargrave said in his argument, that the Roll of this case had been examined for him by a friend, "and according to the account of it given to me, though the declaration is for negroes generally in London, without any mention of foreign parts, yet from the special verdict it appears that the action was really brought to recover the value of negroes, of which the plaintiff had been possessed, not in England, but in India. Therefore, this case would prove nothing in favor of slavery in England, even if it had received the Court's judgment, which, however, it never did receive, there being only an 'ulterius consilium' on the Roll"

been adjudged, that Trover lies of Negroes." This is cited in the subsequent cases.

§ 183. The case of Gelly vs. Cleve is spoken of in 1 Ld. Raymond, 147, as occurring in 1694; as follows:

"Hill. 5 Will. & Mar. C. B. between Gelly and Cleve, adjudged that trover 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'ri Place."

§ 184. The case in 1 Ld. Raymond, 147, is that of Chamberlayne vs. Harvey, 8 & 9 Will. 3, 1697, which is there given as follows:

Trespass for taking of a Negro pretii 100l. The jury find a special verdict; that the father of the plaintiff was possessed of this Negro, and of such a manor in Barbadoes, and that there is a law in that country, which makes the Negro part of the real estate; that the father died seized, whereby the manor descended to the plaintiff as son and heir, and that he endowed his mother of this Negro and of a third part of the manor: that the mother married Watkins who brought the Negro into England, where he was baptized without the knowledge of the mother; that Watkins and his wife are dead, and that the Negro continued several years in England; that the defendant seized him, &c. And after argument at the bar several times by Sir Bartholomew Shower of the one side, and Mr. Dee of the other, this term it was adjudged that this action will not lie. Trespass will lie for taking of an apprentice, or hæredem apparentem. An abbot might maintain trespass for his monk; and any man may maintain trespass for another, if he declares with a per quod servitium amisit; but it will not lie in this case. And per Holt chief justice,' trover will not lie for a Negro, contra to 3 Keble 785, 2 Lev. 201, Butts vs. Penny." Then follows the reporter's reference to Gelly vs. Cleve, as above given. The report of the same case in Carthew's R. 396, is,

Trespass, &c., for that the Defendant vi & armis unum

Burge, Vol. I. p. 736, gives as the report of the Judges upon the memorial of the African Company touching the Assiento, in 1689—“In pursuance of his Majesty's order in Council hereunto annexed, we do humbly certify our opinions to be that negroes are merchandise," &c. Signed by J. Holt and others.

Ethiopem (Anglice vocať) a Negro ipsius querentis pretii 1007. apud London,' &c. took and carried away and kept the Plaintiff out of Possession of the said Negro from that Time usque diem exhibitionis Billæ prædict' per quod he (the Plaintiff) lost the Use of his said Negro.

"Upon not guilty pleaded, the Jury gave a special Verdict, the substance whereof was as followeth :

"88. They find that the Negro had been baptized after the Taking, &c. and the matter was argued upon that Point, (viz.) Whether the Baptism was a Manumission, and as to that the Court gave no opinion.

"Sed per Curiam, An Action of Trespass will not lie, because a Negro cannot be demanded as a chattel, neither can his Price be recovered in Damages in an Action of Trespass, as in case of a Chattel; for he is no other than a slavish Servant, and the master can maintain no other Action of Trespass for taking his Servant, but only such which concludes per quod servitium amisit, in which the master shall recover for the Loss of his Service and not for the Value, or for any damages done to the Servant.

The

"Judgment quod querens nil capiat per Billam." pleadings and special verdict in this case are given in the third volume of Ld. Raymond, p. 129.1

§ 185. In the year 1705, occurred the cases of Smith vs. Brown and Cooper, and Smith vs. Gould, the first of which is reported in 2 Salkeld 666 and Holt's R. 495. The report as in Salkeld is,

"The plaintiff declared in indebitatus assumpsit for 201. for a negro sold by the plaintiff to the defendant, viz. in parochia beatæ Mariæ de Arcubus in warda de Cheape, and verdict for the plaintiff; and on motion in arrest of judgment, Holt, C. J. held, that as soon as a negro comes into England, he becomes free. One may be a villein in England, but not a slave. Et per Powell, J. In a villein the owner has a property, but it is an inheritance; in a ward he has a property, but it is a chattel real; the law took no notice of a negro. Holt, C. J. You

The arguments of counsel, which will be found interesting, are given in the report of the same case, 5 Mod. R. 187.

should have averred in the declaration, that the sale was in Virginia, and, by the laws of that country, negroes are saleable; for the laws of England do not extend to Virginia, being a conquered country, their law is what the king pleases; and we cannot take notice of it but as set forth; therefore he directed the plaintiff should amend, and the declaration should be made, that the defendant was indebted to the plaintiff for a negro sold here at London, but that the said negro at the time of sale was in Virginia, and that negroes by the laws and statutes of Virginia, are saleable as chattels. Then the attorneygeneral coming in said they were inheritances, and transferable by deed, and not without; and nothing was done."

The report of this case in Holt's R. 495, is,

"In an Indebitatus Assumpsit the Plaintiff declared for 207. for a negro sold to the Defendant, in the Parish of the Blessed Mary of the Arches in the Ward of Cheap: There was a Verdict for the Plaintiff, and Motion in arrest of Judgment.

"Holt, C. J. As soon as a Negro comes into England he becomes free; and one may be a villein in England; but not a slave: You should have averred in the Declaration that the sale of the Negro was in Virginia, and by the laws of that country Negroes are saleable; for the laws of England do not extend to Virginia, and we cannot take notice of their Law but as set forth: Therefore he ordered the Plaintiff should amend and alter his Declaration, that the Defendant was indebted to him so much for a negro sold here at London, but that the said negro at the time of the sale was in Virginia; and that negroes by the Laws and Statutes of Virginia may be sold as chattels.

"Powel, J. In a Villein the Owner has a Property, but 'tis an Inheritance; the law takes no notice of a Negro."

The action in this case appears to have been for money on sale of a negro, being in Virginia, where it was admitted slavery was lawful. But the court on the pleadings held itself bound to suppose that the transaction was in England, and, so viewing it, held the contract without consideration, as for the purchase of what could not be an article of commerce by the law of England.'

'Lord Mansfield said in Somerset's case, Loft's R. 17: "Contract for sale of a slave