The Slave, Grace

The Slave, Grace.  November 6, 1827 — A female attendant, by birth and servitude a domestic slave, accompanied her mistress to England, resided there for a year, and then voluntarily returned with her mistress to the place of her birth and servitude, though during the residence in England no dominion, authority, or coercion can be exercised over such person, yet, on her return to her place of birth and servitude, the right to exercise such dominion revives.

The King, and His Majesty's Procurator-General, and George Wyke, Appellants;
versus
John Allan, Esq, Claimant, Respondent.

On Appeal from the Vice-Admiralty Court of Antigua.

In 1822, Mrs Allan of Antigua came to England, bringing with her a female attendant, by birth and servitude a domestic slave, named Grace. She resided with her mistress in this country until 1823, and accompanied her voluntarily on her return to Antigua. Mr Wyke, collector of the customs at Antigua and the original prosecutor of the present suit, was a passenger on board the same ship. On their arrival at Port St John, in the island of Antigua, Grace, with whose character and situation Mr Wyke was well acquainted, landed with her mistress, without any exception made to her condition, and without any formalities at the Custom House observed or required. She continued with Mrs Allan, in the capacity of a domestic slave, till August 8th, 1825, when she was seized by the waiter of the customs at Antigua "as forfeited to the King, on suggestion of having been illegally imported in 1823." The information was filed in June 1826. Mr Allan then made an affidavit of claim, as sole owner and proprietor of Grace, as his slave, and Mr Wyke, a single witness, was examined on interrogatories. On August 5, 1826, the judge of the Vice-Admiralty Court of Antigua decreed, after argument, "that the woman Grace be restored to the claimant, with costs and damages for her detention."

From this sentence an appeal was prosecuted on the part of the Crown, and the principal question made, was–—whether, under the circumstances, slavery was so divested by landing in England that it would not revive on a return to the place of birth and servitude?

The King's Advocate and Lushington for the Appellants

Jenner and Dodson, contra.

Judgment—–Lord Stowell: This case commences with an information against a woman named Grace, who attended her mistress as a domestic servant to England, and returned with her to Antigua, and consists, in the first place, of various counts charging omissions of regulations imposed upon the importation and exportation of slaves to and from the West India colonies; and in consequence thereof, condemnation, or forfeiture to His Majesty, is contended for.

I have to discharge a debt of obligation to the counsel who have argued this cause on both sides, and have taken great pains in elucidating questions that arise upon it. I have likewise to discharge a duty which I owe to the Judge below (Dr Nugent), who has examined the case with very meritorious diligence and acuteness, and thrown very considerable lights upon the general subject I could have wished that, in a case so novel in this Court, it had been furnished with more both of argument and evidence than I have met with in the process which has been transmitted from the inferior Court. What the arguments were on either side of the question in the Court below, what opposition was given to the doctrines maintained by the Court, and by what evidence that opposition was supported, or by what arguments resisted, these papers do not inform me. In a case so important, and unprecedented in this Court, I am left to conjecture what the arguments were from other public papers supplied by the Advocate-General who argued the cause in the Court below, which papers were transmitted to the Secretary of State for the Colonies, and by him or his officers, I presume, submitted to the House of Commons. That is not the way in which the superior Court usually collects information of what passes in the inferior Courts. But these documents come in a form to which I may, I think, without impropriety advert, as containing the probable grounds of opposition in the cause, and on which the Judge decided in a way consistent with his view of the question.

The case begins with an information or charge consisting of five counts; the two first of which may be immediately dismissed, being not at all applicable to the real state of the parties and only urged by the Advocate-General, as he expresses it, "ex abundanti cautelâ," without any expectation of their influencing the judgment. What sort of abundant caution could arise from the introduction of matter which, I understand to have been admitted by the Advocate-General, could not have the slightest influence on the cause I am not informed and find some difficulty in discovering it; but from the papers transmitted I collect that this cautela abundans is founded upon a supposition of the Advocate-General that a slave, who had been in England and returned again to the colonies upon any pretence whatever, was by such residence only entirely enfranchised and became a free person, and was so to be considered in that colony,–—an assertion which brings that great question directly before the Court.

Having disposed of the two first counts I proceed to the third and fourth. The third count pleads, that "this woman, Grace, after the 1st of January 1820, was exported as a slave from the island of Antigua, a colony under the dominion of His Majesty, and carried to Great Britain, a territory to His Majesty belonging, without production of certificate of registration and without such certificate having been endorsed by the collector and annexed to the clearance or permit given for the exportation of the said Grace." The fourth count pleads, that "after the 1st of the said month of January 1820, Grace was unlawfully brought into and landed in the island of Antigua, a colony to His Majesty belonging, from Great Britain, a territory to His Majesty belonging, as a domestic slave in attendance upon the person of her mistress, without any extract and certificate of registration being on board the ship in which the said Grace was imported, and together with her on her arrival produced to the collector of the customs, contrary to the form of the statute": and it has been contended that under the statute, the 59 Geo III, c. 120, s. 12, it was necessary that this person should have had these credentials, as well on the voyage from the colony to the mother-country, as also on the return voyage to Antigua.

It appears to me, on a consideration of the Act referred to, that it never was intended to put any restraint on a domestic slave accompanying his master to Great Britain, or on his being taken back from Great Britain to the colonies. The regulations were made as well for the purpose of preventing slaves being transferred from any one of our colonies to other settlements, as also to prevent the introduction of new slaves into any of our colonies, but they have no reference whatever to the transit of slaves to or from this country and its colonies. Upon reference to the Act of Parliament, I find these words: "With intent that such slave shall be removed to some other colony" (s 11). Nothing whatever is intimated as to Great Britain, nor is there any direction that a certificate of registration or indorsement, on the clearance of vessels coming to this country, is necessary, nor are any such credentials demanded, or considered as demandable, of vessels coming to this country by the Custom House here, as far as upon enquiry there I know and believe.

I cannot help observing here a little upon the careless manner in which the Custom House officer at Antigua appears to have discharged his duty, if there is any duty of this kind imposed upon him. He had come in the ship all the way from England with the slave and her mistress, and he suffers her to go on shore with her mistress without any papers, if papers were at all demandable, and it is not till after two years that he finds that he had mistaken his own duty, and omitted to demand what he now contends were the necessary documents. I might observe upon the lapse of time between the commission of the offence and the institution of the suit, but I think it unnecessary under the observations already made.

The fifth count is that which is alone entitled to consideration in this case. It states, that "she being a free subject of His Majesty was unlawfully imported as a slave from Great Britain into Antigua, and there illegally held and detained in slavery contrary to the form of the statute in such ease made and provided." The objection, therefore, which constitutes the foundation of this suit and the ground of unlawful treatment is, that she was a free subject of His Majesty and under that character unlawfully imported as a slave and was so treated. Now this averment must be proved: it must be shewn that she was so, for otherwise she has no right to prefer this complaint to the Court; and if that assertion fails, there is no ground whatever for the insinuation of her being unlawfully treated, for that assertion of her freedom is the foundation of the wrong of which she complains. If she cannot plead with truth that she was a free subject there is no ground of complaint in her being treated as a slave: her rights are not violated and she has no injured rights to represent. It may be a misfortune that she was a slave, but being so, she in the present constitution of society had no right to be treated otherwise.

I have looked with the utmost attention to discover, if possible, the foundation of her complaint–—that she being a free person is treated as a slave. The truth of that complaint depends upon the nature of that freedom, if any, which she enjoyed before the institution of this suit, and I can find nothing that warrants any such assertion of a freedom so conferred. The sole ground upon which it appears to have been asserted is, that she had been resident in England sometime as a servant waiting upon her mistress, but without the enjoyment of any manumission that could alone deliver her from the character of a slave which she carried with her when she left Antigua; for I think it demonstrable that she could derive no character of freedom that could entitle her to maintain a suit like this (founded upon a claim of permanent freedom) merely by having been in England, without manumission, for a manumission is a title against all the world. The mode of treatment applied to such persons is a strong illustration between the effect produced by a residence in England and that conferred by a manumission, for manumissions are not uncommon in England and always granted where there is an intention of giving the party an absolute title to freedom. This suit, therefore, fails in its foundation. She was not a free person; no injury is done her by her continuance in a state of slavery, and she has no pretentions to any other station than that which was enjoyed by every slave of the family. If she depends upon such a freedom, conveyed by a mere residence in England, she complains of a violation of right which she possessed no longer than whilst she resided in England, but which had totally expired when that residence ceased and she was imported into Antigua; and that is the proposition which I propose to make good in the course of the following observations.

What is the manner in which a freeman, robbed of his freedom and charged with being a slave, resents the injury done by such wrong-doer? His remedy is immediate and in his own power; for it cannot be maintained, that because the Act of Parliament for the abolition of the African slave trade describes this prohibition as extending to slaves, "or persons intended to be sold, transferred, used or dealt with as slaves" (47 Geo. III, c. 36, s. 1), that it is therefore intended to include persons who are free subjects of His Majesty. What has a free person relying upon an antecedent freedom to shew, but the freedom of which he is so in possession, in order to assert his own right already acquired and to maintain his freedom with all its present consequences? Could it possibly occur to any person in such a situation to submit to the degrading remedy which is here sought for–—that is, not to assert his right to a freedom of which he is already in possession? It would, in fact, amount to a disclaimer of any existing freedom. It is a process very fit for the emancipation of a slave, but surely could never be recommended to a person already in possession of a state of liberty freely and fairly acquired.

There is no statute whatever that imposes upon a free person the vindication of his freedom by submitting to a procedure so humiliating to a freeman as to sue for it, at the mercy of the Crown, under a process which places him at the disposal of the officer of the Crown and subject to all such situations as the slave-abolition laws would warrant. Now, that any free subject of the King could be imported as a slave into any of our colonies, and there detained as a slave, appears to be a contradiction in terms. The former charges all describe this person as loaded with the duty of conforming to the obligations of a slave; whereas this describes her as a person sailing from Great Britain as a free subject, and therefore not at all bound to those several obligations which lie only upon slaves. The person who sues for his freedom in the manner proposed must submit himself to be apprenticed, or to be enlisted, or placed in some other situation, at the discretion of the officer of the Crown. Is that a manner in which a free person ought to assert his right? What has he to do but to bring his action against the detainer of his rights? and who can doubt but that he would recover most overwhelming damages against the person who had assaulted his freedom, and compelled him to submit to a process that is only applicable to a slave, and to pour upon his gross wrong-doer the whole vengeance of the law? In short, the whole of this procedure is inapplicable to a freeman, it may seem more likely to initiate him into a state of slavery, but it is utterly inconsistent with a spirit of freedom—–that spirit which would enable its possessor to resent the outrage with which he was threatened, and, without those degradations, to restore him to himself unaided by such a proceeding as could only be instituted against a person already in a state of slavery. See how a claim of this kind betrays its imbecility. The party is seized in the first instance by a Custom House officer, is afterwards handed over to an officer of the Crown, under whose direction he undergoes all the process that would be applied to a slave,—–the treatment differs in no respect, he is not at his own volition but at that of his guardian; he is then bound to some trade or enlisted in the army, nothing of free will of his own, or free action of his own—–all at the will of another,–—shewing most completely a process totally different from that which a real free man would, of his own accord, establish by his own exertions, in spite of all the opposition that could be employed against it; whilst the other is only a transit from one species of slavery into another.

I come now to the discussion of that point which has been already described as the main point upon which this cause must ultimately depend; and that is, whether this person was, at the time she is pleaded to be a free subject of His Majesty, truly and accurately described as a free subject, and in that character entitling this suit to be maintained, and it does not appear to me at all necessary to apologise for entering into such an enquiry, for it is, in truth, the very point upon which the whole essence of the cause depends, and, consequently, the power of supporting it.

I observe that, by the papers transmitted by the Advocate-General to His Majesty's Secretary of State, this notion of a right to freedom by virtue of a residence in England is universally held out as a matter which is not to be denied; but it is contested by the Judge upon the ground that the residence in England conveys only the character so designated during the time of that residence, and continues no longer than the period of such residence The person who is a freeman in England returns to slavery in Antigua; that is the whole question in the cause if to be decided in favour of this female, she has a right to maintain this cause and to claim a judgment, but if, on the contrary, her freedom ceased with her residence in England, she has no right to claim it, and, consequently no power of maintaining the present suit. The Judge of the Court below was perfectly correct in entering into this general question, and required no apology for so doing, for it is really the hinge upon which the whole of this case depends.

The question has been argued as depending upon the interpretation of the well-known case of Sommersett (Howell's State Trials, vol. xx, p. 1), in which a habeas corpus was granted, directed to Capt Knowles, to bring up the body of Sommersett, a negro, which was in his possession in irons, with the cause of his detention. The affidavits stated, that Sommersett had been bought in Virginia and brought to England by Mr Steuart, his master, and on his refusing to return was sent by his master on hoard Knowles's ship to be carried to Jamaica and sold as a slave. It appears that, some time before, this case was argued upon a question addressed to Lord Talbot and to Mr. Yorke, whilst Attorney and Solicitor-General. They gave it as their opinion, that a slave coming from the West Indies, either with or without his master, to Great Britain, doth not become free, and that his master's property or right in him is not thereby determined or varied; and they were also of opinion that the master might legally compel him to return to the plantations; and, as Lord Mansfield expresses it, "they both pledged themselves to the merchants in London to save them harmless from all inconvenience on such a subject," which pledge was afterwards very fully confirmed by a similar judgment pronounced in 1749 by Sir Philip Yorke, then become Lord Chancellor Hardwicke, sitting in the Court of Chancery (State Trials, vol. xx, pp. 4, 81): both of these persons being great men of that age, and, as Lord Mansfield admits, great men in any age This judgment, so pronounced in full confidence, and without a doubt upon a practice which had endured universally in the colonies, and (as appears by those opinions) in Great Britain, was, in no more than twenty-two years afterwards, reversed by Lord Mansfield. The personal traffic in slaves resident in England had been as public and as authorised in London as in any of our West India islands. They were sold on the Exchange and other places of public resort by parties themselves resident in London, and with as little reserve as they would have been in any of our West India possessions. Such a state of things continued without impeachment from a very early period up to nearly the end of the last century.

It appears that Lord Mansfield was extremely desirous of avoiding the necessity of determining the question: he struggled hard to induce the parties to a compromise, and said, he had known five cases so terminated out of six; but the parties were firm to their purpose in obtaining a judgment, and Lord Mansfield was at last compelled after a delay of three terms to pronounce a sentence, which, followed by a silent concurrence of the other judges, discharged this negro; thereby establishing that the owners of slaves had no authority or control over them in England, nor any power of sending them back to the colonies. Thus fell, after only two-and-twenty years, in which decisions of great authority had been delivered by lawyers of the greatest ability in this country, a system, confirmed by a practice which had obtained without exception ever since the institution of slavery in the colonies, and had likewise been supported by the general practice of this nation and by the public establishment of its Government, and it fell without any apparent opposition on the part of the public. The suddenness of this conversion almost puts one in mind of what is mentioned by an eminent author, on a very different occasion, in the Roman History, "Ad primum nuntium cladis Pompeianæ populus Romanus repentè factus est alius": the people of Rome suddenly became quite another people.

The real and sole question which the case of Sommersett brought before Lord Mansfield, as expressed in the return to the mandamus, was, whether a slave could be taken from tins country in irons and earned back to the West Indies, to be restored to the dominion of his master? And all the answer, perhaps, which that question required was, that the party who was a slave could not be sent out of England in such a manner and for such a purpose; stating the reasons of that illegality. It is certainly true that Lord Mansfield in his final judgment amplifies the subject largely. He extends his observations to the foundation of the whole system of the slavery code; for in one passage he says, that "slavery is so odious that it cannot be established without positive law." Far from me be the presumption of questioning any obiter dictum that fell from that great man upon that occasion; but I trust that I do not depart from the modesty that belongs to my situation, and I hope to my character, when I observe, that ancient custom is generally recognised as a just foundation of all law; that villenage of both kinds, which is said by some to be the prototype of slavery, had no other origin than ancient custom; that a great part of the common law itself in all its relations has little other foundation than the same custom, and that the practice of slavery, as it exists in Antigua and several other of our colonies, though regulated by law, has been in many instances founded upon a similar authority. Much occurs in the discussion of the advocates on that question respecting villenage, but little appears in the decision of Lord Mansfield upon that point.

It is not necessary for me to relate the systems which had given way of villenage, pure or privileged, to which this species of slavery was compared, though dissimilar enough in very many respects, as is admitted by most writers on the subject, and amongst other persons by the Advocate-General of Antigua, who, adverting to the general system of villenage, ventures very truly to say, "to which colonial slavery may be supposed to bear some analogy in the absence of more conclusive authority." These systems of villenage had been long, though silently, extinguished as far back as the reign of Edward VI, at the time when Sir Thomas Smith wrote, and who says there were then no villeins in gross remaining in England. Villeins regardant survived them some time longer, but these were particular villeins not attached to the persons but to the manor or soil; not, like negro slaves, to be shifted about for the convenience of the proprietor without being attached to any particular manor. I cannot help entertaining some doubt whether the resemblance between villenage and the African slavery was so close as to effect by its decay the fall of African slavery in England. Villenage certainly had not prevented the introduction of slavery into this country, and its open continuance here for many years. It does not appear that the public were startled at the, revival of villenage under the new form of African slavery. The villeins in gross and regardant were both of a very different kind from that of African slavery. Villeins in gross were liable to any commands of their masters. Villeins regardant were attached to particular manors, and to particular services dependent on those manors. They were men of the form, colour, and speech of their masters; born and bred in this country, and not transferable by sale, unless with the lands to which they were attached. The African slavery was very differently constituted; persons of a different birth, complexion, and language, and of all the various ranks of which their own country, Africa, was composed and employed in various offices according to the convenience of their owners, and transferable by sale at their pleasure,—–unlike the cottagers or handicraftsmen of our own country.

It may, perhaps, be doubted whether the emancipation of slaves in England, pronounced at the end of the last century, was not rather more owing to the increased refinement of the sentiments and manners of the age than to the decay of the two systems of villenage, one of which had expired two hundred years before, and the other one hundred and fifty years at least, and which then only slumbered in the memory of a few antiquaries. The opinion of Lord Mansfield upon this immediate subject makes a very small part of his celebrated speech, it is almost confined to a particular portion of it. There is hardly anything else that is expressed, save several well- merited civilities to the gentlemen of his bar, and some expressions of contempt for the danger and jealousy that might be encountered, but of which none ever appear to have occasioned any reasonable alarm. Thus fell a system which had existed in this country without doubt, and which had been occasionally forced upon its colonies and has continued to this day–—that is, above fifty years—–without further interruption.

The arguments of counsel in that decisive case of Sommersett, do not go further than to the extinction of slavery in England as unsuitable to the genius of the country and to the modes of enforcement: they look no further than to the peculiar nature, as it were, of our own soil; the air of our island is too pure for slavery to breathe in. How far this air was useful for the common purposes of respiration, during the many centuries in which the two systems of villenage maintained their sway in this country, history has not recorded. The arguments of counsel do not go further than to establish that the methods of force and violence which are necessary to maintain slavery are not practicable upon this spot, and Mr. Hargrave, one of the counsel, who distinguished himself very much in that character by very laborious exertions, almost in direct terms asserts that they cannot go beyond it; for in answer to a proposition which had been made to him, that a modified slavery should be permitted in England which would be followed in the colonies, he expressly says (taking it for granted that the modified slavery in England would not at all affect the conditions of slavery in the colonies), that upon the removal to the place slavery would again attach upon him with all its original seventy. It could hardly be otherwise, than that that gentleman was looking towards the necessary continuance of slavery in its severest form, produced by the return of the slave into the colonies. This I take to be the sense of the passage referred to, though expressed in rather an obscure and involved manner.

It is very observable, that Lord Mansfield, when he struggles hard to decline the office of determining the question, confines that question almost in terms to this country; he limits it expressly to this country, for he says, "the now question is, Whether any dominion, authority, or coercion can be exercised on a slave in this country according to the American laws, meaning thereby the laws of the West Indies? The service performed by the slaves without wages is a clear indication that they did not consider themselves free by coming here." In the final judgment he delivers himself thus: "The state of slavery is so odious that nothing can be suffered to support it but positive law": that is, the slavery as it existed in the West Indies; for it is to that he looks, considering that many of the adjuncts that belonged to it there were not admissible under the law of England.

Lord Mansfield very justly observes, that "if the merchants consider the prohibition of slavery in this country of sufficient commercial concern, an application to Parliament is the best, and, perhaps, the only method of settling the point for the future." In conformity with this advice, it is much to be lamented that application was not made to Parliament to settle the question upon a right footing, if it were still to be considered as a dependent question. It might have saved a world of trouble and suffering to both parties, which is now to be produced by the springing up of this question at a very late hour of the day. Persons, though possessed of independence and affluence acquired in the mother-country, have upon a return to the colony been held and treated as slaves; and the unfortunate descendants of these persons, if born within the colony, have come slaves into the world, and in some instances have suffered all the consequences of real slavery, and the proprietors of these slaves are now called upon to give up to the public all the slaves that they have thus acquired  and this not only in Antigua, but most probably in all the islands of the Archipelago; for it cannot be supposed that this claim, if maintained with respect to this island, will not be extended to all the others. These are matters that might have cost at that time of day comparatively little expense and little suffering; but which now cannot be settled without a gross violation of important interests on one side or the other.

It appears to me to be a strong presumption in favour of the parties charged with violating the law, that neither the persons so charged, nor those who had an interest in preventing it, have within the space of fifty years that have elapsed, even in one instance, called the attention of English justice towards it. Black seamen have navigated West India ships to this island, but we have not heard of other Sommersetts, nor has the public been much gratified with complaints of their desertion, though it is probable that some may have taken, and not unfairly, the advantage that was held out by the law. I do not think that the fact remaining dormant so long could have happened without some marked difference of its origin and history from that of the ordinary slave trade.

The system of slavery in our West India colonies was perfect in every part, if I may use that expression, meaning thereby that perfection which consists in the adequacy of the means to produce the intended effect. It was a system not to be thrown out of use, because it was incapable of being used in the full extent in England With the laws of the colonies it could be conciliated. That system was completely armed at every point, and though frequently softened, as in the case of domestic slaves, it was in no wise deficient in compelling the obedience of its subjects: whereas in England it was totally impotent, and the law could not borrow those instruments from a foreign law which were necessary to make the system work properly This may have occasioned one great difference between the two systems. The fact certainly is, that it never has happened that the slavery of an African, returned from England, has been interrupted in the colonies in consequence of this sort of limited liberation conferred upon him in England. There has been no act nor ceremony of manumission, nor any act whatever that could even formally destroy those various powers of property which the owner possessed over his slave by the most solemn assurances of law, such as pledging him, or selling him for the payment of the owner's debts, or making any other use of him that the law warranted. Such rights could not be extinguished by mere silence, or by this country's declining to act in such a conveyance. There is nothing that marks a Liberation from slavery, he goes back to a place where slavery awaits him, and where experience has taught him that slavery is not to be avoided. Slaves have come into this island, and passed out of it in returning to the colonies in the same character of slaves, whatever might be the intermediate character which they possessed in England, and this without any interruption, or without any doubt belonging to their character in that servile state; they go back with a perfect knowledge of the state which they are to re-enter.

The entire change of the legal character of individuals produced by the change of local situation, is far from being a novelty in the law. A residence in a new country often introduces a change of legal condition, which imposes rights and obligations totally inconsistent with the former rights and obligations of the same persons. Persons, bound by particular contracts which restrain their liberty, debtors, apprentices, and others, lose their character and condition for the time when they reside in another country, and are entitled as persons totally free, though they return to their original servitude and obligations upon coming back to the country they had quitted; and even in the case of slavery, slaves themselves possess rights and privileges in one character which they are not entitled to in another. The domestic slave may, in that character, by law accompany his master or mistress to any part of the world, but that privilege exists no longer than his character of domestic slave attaches to him, for should the owner deprive him of the character of being a domestic slave by employing him as a field slave, he would be deprived of the right of accompanying his master out of the colony. On the present question, however, I cannot but think that if the sovereign state has looked upon the manner in which the law has been understood and exercised in a subject-country, without interposing in any manner to prevent it, it has been in fact more criminal, if the case is to be so considered, than the subject-country which has followed the unprohibited practice. And what excuse is to be offered for Lord Mansfield, who long survived the change of law he had made, and yet never interposed in the slightest manner to correct the total misapprehension, if it is so to be considered, of the law which he himself had introduced?

It has been said that, in the decline of the ancient villenage, it became a maxim of very popular and legal use, "Once free for an hour, free for ever," and this has been applied as a maxim  that ought to govern in the case of negro slavery. Now, if this negro slavery was an exact transcript of the ancient villenage, it might not be improperly so contended; but it is to be observed, that this was a maxim introduced when the system of villenage itself was in a state bordering upon decay and growing into general abhorrence and contempt, and that it soon afterwards expired. It is to be noticed likewise, that this system of villenage was confined to this kingdom, though other countries had customs and usages of a similar nature. It was no part of a system extending into foreign countries, or transmarine possessions. Villenage did not travel out of the country, it did not affect the stability of any law which this country could consider as peculiar to its foreign possessions, and it has never been once applied, since the case of Sommersett, to overrule the authority of the transmarine law. This cry of "Once free for an hour, free for ever"! it is to be observed, is mentioned as a peculiar cry of Englishmen as against those two species of slavery. It could interest none but the people of this country: and of these only the masters, for no one else had any interest in the duty or services of their villeins. This cry has not, as far as we know, attended the state of slavery in any other country, though that has been a state so prevalent in every other part of the world, and has existed at all times.

The public inconvenience that might follow from an established opinion that negroes became totally free in consequence of a voyage to England, without any express act that declared them to be so, is not altogether to be overlooked. It is by no means improbable that, with such a temptation presented to them, many slaves might be induced to try the success of various combinations to procure a conveyance to England for such purpose, and, by returning to the colony in their newly-acquired state of freedom, if permitted, might establish a numerous population of free persons, not only extremely burdensome to the colony, but, from their sudden transition from slavery to freedom, highly dangerous to its peace and security.

It may now be of use to consider what has been the effect of other cases, very few of which occur, of any great affinity with the case of Sommersett. There is a case which happened in the Court of Chancery in 1762, under Lord Chancellor Northington (which was before the determination of Lord Mansfield), I mean the case of Shanley v. Harvey (2 Eden, 126). A bill was filed by Edward Shanley, as administrator of Margaret Hamilton, deceased, against Joseph Harvey, a negro, and two persons of the names of Gossrap and Thorpe, his trustees, for an account of part of the personal estate of the deceased. It happened that Shanley had, twelve years before, brought over this slave to this country, he being then only eight or nine years old, and presented him to his niece, Margaret Hamilton, who had him baptised, and changed his name; and on the 9th July 1752, she, being very ill, about an hour before her death, directed Harvey to take out a purse which was in her dressing-case drawer, and delivered it to him, saying, "Here, take this; there is £700 or £800 for you, in banknotes, and some more in money, but I cannot directly tell what; but it is all for you, to make you happy. Make haste, put it in your pocket." He then knelt down and thanked her. She said, "God bless you, make a good use of it." The Lord Chancellor Northington, in dismissing the bill, with costs, said that, "as soon as a man sets foot on English ground he is free."

It must be observed, that this is the first time, probably, that this doctrine was so broadly stated in an English Court, and, perhaps, a little prematurely, but, it must likewise be observed, that his lordship here mentions only two effects of it; for he adds, "A negro may maintain an action against his master for ill-usage, and may have a habeas corpus if restrained of his liberty." This is an instance in which the law of England differed most essentially from the law of the slave code in the West India Colonies; for there, every acquisition by the slave, whether by legacy or otherwise, went to the master; but not so here, where the law of England adjudged it to the slave And the Lord Chancellor enumerates another difference, which is, that the law of England empowered the slave to bring an action against his master for ill-treatment. Both of these are direct contradictions to the rules of the slave code; but nobody could infer from thence that the whole of the slave code was, by that decision, intended to be vacated in the colonies on that account The error of the opinion seems to be, that, because the slave code was overruled in England, where the law of England differed from it, it was therefore abrogated in the colonies in total. The slave continues a slave, though the law of England relieves him in those respects from the rigours of that code while he is in England, and that is all that it does. With respect to other seventies which it refuses to inflict, it is spinis de pluribus una, which does not at all dislodge the other seventies of that code, all of which he may avoid by continuing in this country. And it is a most remarkable circumstance, that though this case had been pressed upon the attention of Lord Mansfield in one of the speeches addressed to him, he himself never took any notice of it, although evidently, at that time, anxious to support his new doctrine, and struggling hard to call in aid every authority that could establish it.

Scotland and Ireland have the same privilege as England, being members of the same confederation, and the Scotch Judges have well expressed their opinions of the extent of the judgment of Lord Mansfield in the case of Knight v. Wedderburn in 1778, a case argued with great ability, in which they determined the extent of this judgment to be, that the dominion assumed over the negro, by the law of Jamaica, could not be supported in this country. What does this prove, but the well-known fact, that different countries have different laws upon the same subject, and even different provinces of the same kingdom? It is a large chapter, and full of many difficult questions, that treats of such diversities, in the writings of civilians. All that the judges, in the different cases I have adverted to, have determined, is, that slaves coming into England are free there, and that they cannot be sent out of the country by any process to be there executed.

I come now to consider the adjudged cases which have been adverted to, and there are very few which at all touch upon this point; and I cannot but think that the cases would have been much more numerous and more applicable, if the opinion had prevailed that the case of Sommersett had warranted a conclusion of the wide import that is contended for. The first case is that of Keane v. Boycott (2 H. Bl. 511) in the Court of King's Bench. In that case it appeared that a negro, whilst an infant, and in a state of slavery in the island of St. Vincent, executed a contract, by which he bound himself to his then master who was coming to England, to act as his servant for five years; and the action was brought for enticing the boy from the service of his master into the military service, which the boy accepted. An action was brought by the master against the officer who had enticed him; and it was determined that it was a good contract, voidable only at the instance of the boy, but not void, and therefore could not act as a defence to the action against the officer. But this has nothing to do with slavery, from which, of course, the boy was free from his arrival in England. It turns entirely upon the contract, and, therefore, in no manner touches the question.

The next case, in point of date, is the case of Williams v. Brown (3 Bos. & Pull. 69). That was the case of a runaway negro slave who had come to England, and entered into a contract with the master of a vessel to serve as a seaman during a voyage to and from the West Indies. The ship was bound to Grenada, the very island from which the man had deserted, and where on the arrival of the vessel he was discovered by his master who claimed him as his slave, and who subsequently agreed with the captain of the vessel to sell his manumission for a price which the master of the vessel paid, whereupon the manumitted slave entered into a contract with such master to serve for three years. Upon his return to England, he sued the master of the vessel for his wages for the voyage, and had a verdict; but a rule nisi was obtained, and afterwards argued in the Court of Common Pleas. Mr. Serjt. Shepherd, who was counsel for the man, and was well known as a person who would never omit any plea that could be useful to his client, never urged the point, that, because the man had been in England, and was free there, he was consequently free at Grenada; and Mr Justice Heath observed, that when the man "was claimed at Grenada, he was incapable of performing the service for which he now brings his action. He was liable," he says, "to severe punishment for having run away from his master: he was a slave for life." Mr Justice Rooke said, "that though the man might enter into a contract to go to any other place but to Grenada, yet he could not engage to go there without danger of being detained", and further, that, "being a runaway slave he became liable to punishment, and the forfeiture to his master in Grenada of all the wages which he had earned during the outward voyage, and that, being a slave in Grenada, he could not enter into any contract there without the leave of his master." Mr Justice Chambre observed, that, "being claimed as a runaway slave, he was considered as a criminal; he was liable to a very severe punishment: he was incapable of recovering, for his own benefit, the money which he had earned upon the outward-bound voyage." He adds, "that from the contract he could receive no benefit, for his master was entitled to all the wages he might earn." Lord Alvanley, who disagreed with the other judges as to the effect of the contract merely, but not upon the general question, stated, "The plaintiff, being as free as any of us while in England, engaged to serve the defendant, who undertook to pay him a stipulated sum", and adverting to the agreement entered into at Grenada, whereby he obtained his manumission, his lordship further stated, "that the man was thereby redeemed from slavery and the penal consequences attending his then situation"; and he proceeds thus: "When the plaintiff was claimed in Grenada as a runaway slave, he was not only liable to be remanded into slavery, but by the laws of the island he was amenable to severe punishment."

The man, then, was clearly entitled to his freedom when he first engaged into the service of the ship in London, although a runaway: at least, if there be any truth in these expressions, "that as soon as a man sets his foot in England–—if he breathes the air of England–—he is free without any further ceremony" , and it cannot be denied to him, although a runaway, as observed by Lord Alvanley, that this runaway was as free as any of us in England. But it appears that this runaway negro was, to preserve his freedom in Grenada, under the necessity of obtaining a manumission there; and he subsequently enjoyed his freedom in consequence of that ceremony; or, as that manumission implies, he must have remained a slave in Grenada without it. It is a clear recognition of the necessity of a manumission in that country, notwithstanding he had been in England, and the judges were all concordant in that particular, though Lord Alvanley expressed some doubts as to the validity of the contract upon other grounds. I think that this case bears directly upon the point, and is a direct recognition of the principle contended for, that a slave who returns to his country returns to a state of slavery. It is not to be said that the man's desertion is alleged as the cause of his return to slavery he had become a free man by landing in England, in the opinion of all the judges; and it is only by virtue of his pre-existing state of slavery that he became subject to be returned into it again, until his manumission. The four judges all concur in this–—that he was a slave in Grenada, though a freeman in England, and he would have continued a freeman in all other parts of the world excepting Grenada.

I have been the more particular in stating this case, because I do think it approaches so near as to possess the authority of a direct decision upon the immediate subject, although I have heard the case sometimes quoted as almost amounting to a direct recognition of the freedom of the slave, on account of his having been in England; when nothing can be more clear than that it is, in every respect, a direct decision of the four judges to the contrary.

The case of Forbes v. Cochrane and Cockburn (2 B. & C. 448), seems to me to tend, though perhaps not so directly, towards the same conclusion. This case happened in consequence of the flight of a number of slaves belonging to Mr. Forbes, a subject of East Florida, on board one of His Majesty's ships of war, commanded by Sir George Cockburn, acting under the command of Admiral Cochrane. These slaves were reclaimed by Mr. Forbes, who insisted upon Sir George Cockburn's sending them back. Sir George Cockburn declined this saying, "that they had taken refuge on board of an English man-of-war, and that they were free from any constraint of his, although he had no objection if Mr Forbes could prevail upon them to return; but having received them into his ship he could not direct them to be turned out"; and that defence was sustained by the Court of King's Bench. In truth, this is no more than a decision of that Court respecting the privilege claimed by ships of war of sharing in the rights and immunities of their own country. It was likewise decided, that if any attempt had been made, by force, to take the men out of that station and any mischief had happened thereon, the parties guilty of making that attempt would have been liable to a prosecution under the law of England.

Reference has been made to a local act passed by the people of Antigua themselves in the year 1816, to the effect that "if any person claiming to be free, should be committed as a runaway, or supposed runaway slave, and it shall appear to the justices that he or she is legally free, or in equity or conscience ought to be considered as free, or hath been generally deemed or considered for any length of time a free person, the justices shall by their warrant direct such persons to be immediately discharged out of custody."

The first of these, that of being " legally free," is clearly inapplicable to this case, upon the grounds which I have stated on the general question, and I think the second, that of being "in equity or conscience" considered free, cannot be applicable to slaves coming from England, to whose condition such privilege has been universally denied upon this plain ground, that a residence in England as a freeman had never been held to answer this description. It is what at all times, and at the present time, has been powerfully resisted. The temporary freedom thus acquired has ever been superseded upon the return of the slave; and slaves never have been deemed and considered as free persons on their return to Antigua, or the other colonies.

Those who contend for this interpretation of the law, as giving freedom to slaves merely because they have been in England, are bound to shew, that ever since the local act persons returning from England have been allowed freedom upon their return, where not objected to on the part of the slaves themselves. It never could have been intended by this law to have given freedom to persons claiming it in consequence of their coming from England; for that, as I have observed, has been uniformly resisted by the people of Antigua. And it is a known and universal rule in the interpretation of laws, that that sense is to be put on those laws which is the sense affixed to them by the Legislature. They cannot, therefore, be considered as having ever answered the description contained in this legislative enactment; and I understand that it is the constant practice of persons, who intend giving freedom to slaves on their return to the colonies, to execute instruments of manumission previous to their quitting this country for the colonies.

A similar objection lies against the third It is obvious that this cannot apply to slaves who have returned from England, but to those who might for a time have acquired a nominal freedom by rambling in the colonies under a character of freedom, real or pretended, and if shewn to be clearly founded in error, it could not lead to a consequence of freedom. If persons have been rambling about the country under a false character, and that pretension is disproved, they can no longer obtain the benefits which are assigned to it.

Reference has also been made to another Act which had passed previously, and said to form part of the local law of that colony, in which it is declared that they acknowledge no other law than the common law of England, so far as it stands unaltered by any written law of that island, or by some Act of Parliament.

Now this enumeration of their laws omitted a very material source from whence other laws were derived–—that of legitimate custom; and if even that should not be deemed a venial omission, it surely would be a gross abuse of all principle to say, that upon that account they should be deprived of their commerce, which every other island in that archipelago had uniformly possessed, and which the sovereign state had promoted and encouraged in all of them. It might not have occurred to the gentlemen of that island to insist upon custom, so protected, to be a source of laws; and an omission of this kind, in describing the sources of law, can never have the effect of disabling that efficacy which has not only been exercised both before and since the framing of that decree, but has been guaranteed and protected, to the utmost, by the laws of the mother-country, in common with the state of the other islands in the same part of the world.

Having adverted to most of the objections that arise to the revival of slavery in the colonies, I have first to observe, that it returns upon the slave by the same title by which it grew up originally. It never was in Antigua the creature of law, but of that custom which operates with the force of law; and when it is cried out that malus usus abolendus est, it is first to be proved, that, even in the consideration of England, the use of slavery is considered as a malus usus in the colonies. Is that a malus usus which the Court of the King's Privy Council and the Courts of Chancery are every day carrying into full effect in all considerations of property, in the one by appeal, and in the other by original causes; and all this enjoined and confirmed by statutes? Still less is it to be considered a malus usus in the colonies themselves, where it has been incorporated into full life and establishment; where it is the system of the state and of every individual in it, and fifty years have passed without any authorised condemnation of it in England as a malus usus in the colonies. The fact is, that in England, where villenage of both sorts went into total decay, we had communication with no other country, and, therefore, it is triumphantly declared, as I have before observed, "once a freeman ever a freeman," there being no other country with which we had immediate connection, in which, at the time of suppressing that system, we had any occasion to trouble ourselves about. But slavery was a very favoured introduction into the colonies it was deemed a great source of the mercantile interest of the country; and was, on that account, largely considered by the mother-country as a great source of its wealth and strength. Treaties were made on that account and the colonies compelled to submit to those treaties by the authority of this country. This system continued entire.

Instead of being condemned as malus usus, it was regarded as a most eminent source of its riches and power. It was at a late period of the last century that it was condemned in England as an institution not fit to exist here, for reasons peculiar to our own condition; but it has been continued in our colonies favoured and supported by our own Courts, which have liberally imparted to it their protection and encouragement. To such a system, whilst it is so supported, I rather feel it to be too strong to apply the maxim, malus usus abolendus est. The time may come when this institution may fall in the colonies, as other institutions have done in other flourishing countries; but I am of opinion that it can only be effected at the joint expense of both countries; for it is in a peculiar manner the crime of this country; and I rather feel it to be an objection to this species of emancipation, that it is intended to be a very cheap measure here by throwing the whole expense upon the colony.

It has been said that the law of England discourages slavery, and so it certainly does within the limits of these islands , but the law uses a very different language and exerts a very different force when it looks to her colonies; for to this trade in those colonies it gives an almost unbounded protection, and it is in the habit of doing so at the present time in many exercises of public authority; and even since slavery has become odious in England, it has been fully supported by the authority of many statutes for the purpose of carrying it into full effect in the colonies. All the efforts of the persons who have contended for the abolition of slavery in the colonies, and who have obtained many Acts of Parliament for the regulation of it therein, have in no degree weakened the force of those English statutes which so powerfully support it in the mother-country.

It has been observed, that the sovereign state has declared, that all laws made in the colonies, contradicting its own law, shall be null and void, and cannot be put in execution; but is that the character of the laws in the colonies for the encouragement of the proprietors of slaves? Has it not, since the declaration of its judgment against slavery, declared, in the most explicit and authentic manner, its encouragement of slavery in its colonial establishments? Have not innumerable Acts passed which regulate the condition of slaves, and which tend to consider them, as the colonists themselves do, as res positœ in commercio, as mere goods and chattels, as subject to mortgages, as constituting part of the value of estates, as liable to be taken in execution for debt–—to be publicly sold for such purposes; and has it not established Courts of the highest jurisdiction for the carrying into execution provisions for all these purposes; and these its most eminent Courts of Justice––its Court of the King's Privy Council, and its Courts of Chancery, where all these regulations are carried into effect with most scrupulous attention and under the authority of Acts of Parliament? Can any man doubt that at this time of day slaves in the colonies may be transferred by sale made in England, and which would be affirmed without reference to the Court so empowered; for the Acts of Parliament including the recent Consolidation Act (5 G. IV, c. 113, s. 37), prescribe and regulate the manner in which these transfers of slaves are to be securely made in this kingdom, and the mode to be adopted where money is lent on mortgage upon the security of slaves; and how, under the guarantee of such protection, can it be asserted that the law of England does not support, and in a high degree favour, the law of slavery in its West India colonies, however it may discourage it in the mother-country? Is it not most certain that this trade of the colonies has been the very favourite trade of this country, and so continues, so far as can be judged from encouragement given in various forms—–the making of treaties, the institution of trading companies, the devolution of property from one company to another, the compulsion of the colonies to accept this traffic, and the recognition of it in a great variety of its laws? If it be a sin, it is a sin in which this country has had its full share of the guilt, and ought to bear its proportion of the redemption. How this country can decline to perform the act of justice, in performing the act of charity, men of great wisdom and integrity have not been able to discover.

The example of France has been glanced at, which has adopted a more decided policy with regard to its colonial slaves. It certainly discouraged the entry of slaves into France, not permitting it, according to the first edict passed in 1716, but by the permission of the governor or commandant of the colony; and that edict commands the slaves to return to the colonies at the instance of the master. But, in the event of the master not having obtained permission for the slave to go to the mother-country, in that case he was declared to be free France did not, therefore, do as this country had done, put their liberty, as it were, into a sort of parenthesis; but it denied them freedom in France, and held them bound to their masters, if the regulations of the edict had been complied with by them. In 1738, an alteration took place by a further edict, whereby, if the regulations had not been attended to, the slave was not, as before, entitled to his freedom, but he became forfeited to the Crown, to be sent back to be employed in the public works of the colonies. Whether that is the footing upon which the question now stands, I am not informed, and do not feel it to be of importance in determining the present case I believe France has been more zealous in Christianising her slaves than we have formerly been; although this deficiency on our part has been most happily supplied by the mission of two most respectable prelates to superintend the spiritual concerns of these islands.

England, the general sovereign of all her colonies, has been looking on with indifference and permitting daily occurrences to pass under her eyes without taking any steps whatever to correct them, and, with all the indulgence which has been shewn to the efforts of gentlemen who have manifested a zeal for the emancipation of slaves, the system of law has been little relaxed. Our own domestic policy continues to be actively employed in supporting the lights of proprietors over the persons committed to their authority in the character of slaves.

It cannot be denied that cases have been mentioned by Dr. Lushington, I know not to what extent they prevail; but in any extent they are cases which must excite the sympathy of every considerate man, and call for remedy to be administered by the mother-country, if it is not supplied by the colony itself. That persons, brought up with the expectation of considerable wealth, acquired in this or other countries, should be subjected to the reverses of fortune which may befall them, upon visiting the country of their parents at an advanced period of life, is a most severe hardship, that they should be compelled to submit to the humiliation which may attend them in any acquired situations, upon such return, is to be much lamented; but these are matters happily within the power, and certainly within the justice, of Parliament to remedy by some general correctives. Lord Mansfield, I observe, recommended to the merchants to make application to Parliament for any purposes which they might deem requisite on the subject. It cannot, I think, be denied, that there are purposes for which such an application might be deemed eminently useful. Cases in which the representatives of families, who have acquired property in England or elsewhere, and who have returned at a very mature age to those islands, are certainly very fit objects to be relieved from a state of interminable slavery; for a return to a condition of slavery must operate upon them and others, who are at all under similar circumstances, with an unjust severity, and, at any rate, the humanity of Parliament could not be employed to a more beneficent effect, if the colonists themselves should neglect to interfere.

I am very sensible that there are many great and important questions, touching our empire in that part of the world, much connected with the questions which I have ventured to examine, and which he beyond the power of any consideration of my own, or perhaps of those gentlemen who have adverted to the same subjects, but with a result which I am compelled to oppose. How far, for instance, a law can be deemed legal and constitutional which authorises a Custom House officer to seize a person described to such officer as a free person, and to inflict upon him the degrading process which that law compels him to use in respect to slaves, are questions that exceed the competency of my powers, and, possibly, even of those who have framed regulations upon these important subjects. There are also other points deserving of attention. It is known that there are estates abounding with slaves, which are in mortgage by special contracts to residents in this country, commonly English merchants, parties who can bring as many of these slaves as they think fit over to England, and by that means rid themselves of the security which they had given to the mortgagees. These, and many other questions deeply Meeting the value of West India estates to persons in England, as well as in the colonies, are questions of very serious import, and entitled to the attentive consideration of the legislature. 

These are the conclusions to which I have arrived, after a very full and mature consideration of the subject. I can truly say that I arrived at those conclusions with a mind free from any prepossession upon the subject, and with the determination to attend to nothing but the fair result of the evidence which applies to it. I am sensible that other opinions may be formed upon the question; but, in affirming the sentence of the Judge of the Court below, I am conscious only of following that result which the facts not only authorise but compel me to adopt.

Sentence affirmed, with costs.

May 6th 1828. Note.––The provisions of the 5 G. IV, c. 113, s. 34 (in respect to slaves restored upon appeal), having been complied with, the Court, in order that the claimant might obtain the costs and damages decreed at Antigua, remitted the cause.