cluding slavery is retained by the law of England, it must continue intitled to the same preference. Nor let it be thought a peculiar want of complaisance in the law of England, | that disregarding the lex loci in the case of slaves, it gives immediate and entire liberty to them, when they are brought here from another country. Most of the other European states, in which slavery is discountenanced, have adopted a like policy.

In Scotland domestic slavery is (m) unknown, except so far as regards the () coalbewers and salt-makers, whose condition, it must be confessed, bears some resemblance to slavery; because all who bave once acted in either of these capacities are compellable to serve, and fixed to their respective places of employment during life. But with this single exception, there is not the least vestige of slavery; and so jealous is the Scotch law of every thing tending to slavery, that it has been held to disallow contracts of service for life, or for a very long term; as, for sixty years (o). However, no particular case has yet happened, in which it has been necessary to decide, whether a slave of another country acquires freedom on his arrival in Scotland. In 1757 this question was depending in the Court of Session in the case of a negro; but the negro happening to die during the pendency of the cause, the question was not (*) determined. But when it is considered, that in the time of sir Thomas Craig, who wrote at least 150 years ago, slavery was even then a thing unheard of in Scotland, and that there are no laws (p) to regulate slavery, one can scarce doubt what opinion the lords of session would have pronounced, if the negro's death had not prevented a decision.

In the United Provinces slavery having fallen

$. 32.

(m) See Crag. Jus Feud. lib. 1, dieges. 11, Stair's Instit. b. 1, t. 2, s. 11, 12. (n) Forb. Inst. part 1, b. 2, t. 3. Macdoual. Instit. vol. 1, p. 68.

(0) Macdoual. Instit. vol. 1, p. 68. But I must observe, that in the case relied on by Mr. Macdoual, the term of service was not the only material circumstance. The contract was between the masters and the crews of some fish boats; the latter binding themselves for a yearly allowance to serve in their respective boats during three times nineteen years, so that not one of them, during all that time, could remove from a particular village, or so much as from one boat to another. See Dict. Decis. tit. Pactum illicitum.

(*) Wall. Instit. Law of Scotl. chap. on master and servant.

(p) Sir Thomas Craig, mentioning the English villenage, says, Nullus est apud nos ejus * usus, et inauditum nomen, nisi quod nonnulla in libro Regiæ Majestatis de nativis et ad libertatem proclamantibus proponantur; quæ 'et ab Anglorum moribus sunt recepta, et nunquam in usum nostrum deducta,' Crag. Jus Feud. lib. 1, dieges. 11, s. 32.

into disuse (9), all their writers agree, that slaves from another country become free the moment they enter into the Dutch territories (r). The same custom prevails in some of the neighbouring countries, particularly Brabant, and other parts of the Austrian Netherlands; and Gudelinus, an eminent civilian, who was formerly professor of law at Louvain in Brabant, relates from the annals of the supreme council at Mechlin, that, in the year 1531, an application for apprehending and surrendering a fugitive slave from Spain was on this account rejected (s).

In France the law is particularly explicit against regarding the lex loci in the case of domestic slavery: and though, in some of the provinces, a remnant of the antient slavery is still to be seen in the persons of the serfs or 'gens de main-morte,' who are attached to particular lands (t), as villeins regardant formerly were in England; yet all the writers on the law of France agree, that the moment a slave arrives there from another country he acquires liberty, not in consequence of any written law, but merely by long usage having the force of law. There are many remarkable instances in which this rule against the admission of slaves from foreign countries has had effect in France. Two are mentioned by (u) Bodin; one being the case of a foreign merchant who had purchased a slave in Spain, and afterwards carried him into France; the other being the case of a Spanish ambassador, whose slave was declared free, notwithstanding the high and independent character of the slave's owner. This latter case has been objected to by some writers (w) on the law of nations, who do not disapprove of the general principle on

(9) Belgae servos non habent, nisi in Asiâ, Africâ, et Americâ.' Bynkersh. Quæst. Jur. Pub. lib. 1, c. 3. Another great Dutch lawyer adds, Nec cuiquam mortalium nunc liceat sese venundare, aut aliâ ratione servitutis jure 'semel alteri addicere.' Voet Commentar. ad Pandect. lib. 1, tit. 5, s. 3.

(r) ' Servitus paulatim ab usu recessit, ejusque nomen hodie apud nos exolevit; adeo quidem ut servi, qui aliunde huc adducuntur, simul ac imperii nostri fines intrârunt, invitis 'ipsorum dominis ad libertatem proclamare possint: id quod et aliarum Christianârum gentium moribus receptum est.' Groenewegen de Leg. Abrogat. in Hollandiâ, &c. p. 5. John Voet, in the place cited in the preceding note, expresses himself to the same effect.

(s) Gudelin. de Jur. Noviss. lib. 1, c. 5, et Vinn. in Instit. lib. 1, tit. 3, p. 32, edit. Heinecc. (t) See Inst. au droit Franc. par M. Argou, ed. 1753, liv. 1, chap. 1, p. 4.

(u) Bodin. de Republic. lib. 1, cap. 5, de imperio herili. See several other instances mentioned in the Negro cause in the 13th volume of the Causes Celebres.

(w) Kirchner, de Legat. lib. 2, c. 1, num. 233; and after him Bynkershoek Juge Com. pet. des Ambassad. ed. par Barbeyr. c. 15, s. 3.

law of England can be so insulting to the negro, so inconsistent with itself?

The argument of modification, independently of contract, is equally delusive.There is no known rule by which the Court can guide itself in a partial reception of slavery. Besides, if the law of England would receive the slavery of the negro in any way, there can be no reason why it should not be admitted in the same degree as the slavery of the villein; but the argument of modification necessarily supposes the contrary; because, if the slavery of the negro was received in the same extent, then it would not be necessary to have recourse to a qualification. There is also one other reason still more repugnant to the idea of modifying the slavery. If the law of England would modify the slavery, it would certainly take away its most exceptionable qualities, and leave those which are least oppressive. But the modification required will be insufficient for the master's purpose, unless the law leaves behind a quality the most exceptionable, odious and oppressive; an arbitrary power of reviving the slavery in its full extent, by removal of the negro to a place, in which the slavery will again attach upon him with all its original severity (d).

From this examination of the several objections in favour of slavery in England, I think myself well warranted to observe, that instead of being weakened, the arguments against slavery in England have derived an additional force. The result is, not merely that negroes become free on being brought into this country, but that the law of England confers the gift of liberty entire and unincumbered; not in name only, but really and substantially; and consequently that Mr. Steuart cannot have the least right over Sommersett the negro, either in the open character of a slave, or in the disguised one of an ordinary servant.

(2) Point on Mr. Stewart's authority to enforce bis right to the negro by transporting him out of England.

(2.) In the outset of the argument I made a second question on Mr. Steuart's authority to enforce his right, if he has any, by transporting the negro out of England. Few words will be necessary on this point, which my duty as

(d) This answer to the argument of modification, includes an answer to the supposition, that an action of trespass per quod servitium ' amisit,' will lie for loss of a negro's service. I am persuaded, that the case, in which that remedy was loosely suggested, was one in which the question was about a negro being out of England. I mean the case of Smith and Gould, 2 Salk. 667. Another writ, hinted at in the same case, is the writ of trespass, 'quare ⚫ captivum suum cepit;' which is not in the least applicable to the negro, or any other slave. It supposes the plaintiff to have had one of the king's enemies in his custody as a prisoner of war, and to have had a right of detaining him till payment of a ransom. See Reg. Br. 102, b. and 2 Salk. 667.

VOL. XX.

counsel for the negro requires me to make, in order to give him every possible chance of a discharge from his confinement, and not from any doubt of success on the question of slavery.

If in England the negro continues a slave to Mr. Steuart, he must be content to have the negro subject to those limitations which the laws of villenage imposed on the lord in the enjoyment of his property in the villein; there being no other laws to regulate slavery in this country. But even those laws did not permit that high act of dominion which Mr. Steuart has exercised; for they restrained the lord from forcing the villein out of England. The law, by which the lord's power over his villein was thus limited, has reached the present times. It is a law (e) made in the time of the first William, and the words of it are, probibemus ut nullus vendat hominem extra pa. 'triam' (ƒ).

If Mr. Steuart had claimed the negro as a servant by contract, and in his return to the Habeas Corpus had stated a written agreement to leave England as Mr. Steuart should require, signed by the negro, and made after his arrival in England, when he had a capacity of contracting, it might then have been a question, whether such a contract in writing would have warranted Mr. Steuart in compelling the performance of it, by forcibly transporting the negro out of this country? I am myself satis fied, that no contract, however solemnly entered into, would have justified such violence. It is contrary to the genius of the English law, to allow any enforcement of agreements or contracts, by any other compulsion, than that from our courts of justice. The exercise of such a power is not lawful in cases of agreements for property; much less ought it to be so for enforcing agreements against the person. Besides, is it reasonable to suppose, that the law of England would permit that against the servant by contract, which is de. nied against the slave? Nor are great authorities wanting to acquit the law of England of such an inconsistency, and to shew, that a contract will not warrant a compulsion by imprisonment, and consequently much less by transporting the party out of this kingdom. Lord Hobart, whose extraordinary learning, judgment, and abilities, have always ranked his opinion amongst the highest authorities of law, expressly says (g), that the body of a freeman cannot be made subject to distress or imprisonment by contract, but only by judgment. There is, however, one case, in which it is said that the performance of a service to be done abroad, may be compelled without the

(e) Wilk. Leg. Saxon. p. 229, et cap. 65, Leg. Gulielm. 1.

(f) This law furnishes one more argument against slavery imported from a foreign country. If the law of England did not disallow the admission of such a slavery, would it restrain the master from taking his slave out of the kingdom? Hob. 61.

F

intervention of a court of justice; I mean the case of an infant-apprentice, bound by proper indentures to a mariner or other person, where the nature of the service imports, that it is to be done out of the kingdom (h), and the party, by reason of his infancy, is liable to a coercion not justifiable in ordinary cases. The Habeas Corpus Act (i) goes a step further; and persons who, by contract in writing, agree with a merchant or owner of a plantation, or any other person, to be transported beyond sea, and receive earnest on such agreements, are excepted from the benefit of that statute. I must say, that the exception appears very un guarded; and if the law as it was previous to this statute, did entitle the subject to the Habeas Corpus in the case which the statute excepts, it can only operate in excluding him in that particular case from the additional provisions of the statute, and cannot, I presume, be justly extended to deprive him of the Habeas Corpus, as the common law gave it before the making of the statute.

Upon the whole, the return to

Conclusion. the Habeas Corpus in the present case, in whatever way it is considered, whether by inquiry into the foundation of Mr. Steuart's right to the person and service of the negro, or by reference to the violent manner in which it has been attempted to enforce that right, will appear equally uuworthy of this court's approbation. By condemning the return, the revival of domestic slavery will be rendered as impracticable by introduction from our colonies and from other countries, as it is by commencement here. Such a judgment will be no less conducive to the public advantage, than it will be conformable to natural justice, and to principles and authorities of law; and this court, by effectually obstructing the admission of the new slavery of negroes into England, will in these times reflect as much honour on themselves, as the great judges, their predecessors, formerly acquired, by contributing so uniformly and successfully to the suppression of the old slavery of villenage.

ARGUMENTS OF THE OTHER COUNSEL.

Mr. Alleyne.-Though it may seem presumption in me to offer any remarks, after the elaborate discourse just now delivered, yet I hope the indulgence of the Court; and shall confine my observations to some few points, not included by Mr. Hargrave. It is well known to your lordships, that much has been asserted by the ancient philosophers and civilians, in defence of the principles of slavery: Aristotle has particularly enlarged on that subject. An observation still it is, of one of the most able, most ingenious, most convincing writers of modern times, whom I need not hesitate, on this occasion, to prefer to Aristotle, the great Montesquieu, that Aristotle, on this subject, reasoned very unlike the philosopher. He draws his precedents from barbarous ages

(h) Hob. 134. (i) 31 Cha. 2, c. 2, § 13.

and nations, and then deduces maxims from them, for the contemplation and practice of civilized times and countries. If a man who in battle has had his enemy's throat at his sword's point, spares him, and says therefore he has power over bis life and liberty, is this true? By whatever duty he was bound to spare him in battle, (which he always is, when he can with safety) by the same he obliges himself to spare the life of the captive, and restore his liberty as soon as possible, consistent with those considerations from whence he was authorised to spare at first; the same indispensible duty operates throughout. As a contract: in all contracts there must be power on one side to give, on the other to receive; and a competent consideration. Now, what power can there be in any man to dispose of all the rights vested by nature and society in him and his descendants? He cannot consent to part with them, without ceasing to be a man; for they immediately flow from, and are essential to, his condition as such: they cannot be taken from him, for they are not his, as a citizen or a member of society merely; and are not to be resigned to a power inferior to that which gave them. With respect to consideration, what shall be adequate? As a speculative point, slavery may a little differ in its appearance, and the relation of master and slave, with the obligations on the part of the slave, may be conceived; and merely in this view, might be thought to take effect in all places alike; as natural relations always do. But slavery is not a natural, it is a municipal relation; an institution therefore confined to certain places, and necessarily dropt by passage into a country where such municipal regulations do not subsist. The negro making choice of his habitation here, has. subjected himself to the penalties, and is therefore entitled to the protection of our laws. One remarkable case seems to require being mentioned: some Spanish criminals having escaped from execution, were set free in France. [Lord Mansfield.-Note the distinction in the case: in this case, France was not bound to judge by the municipal laws of Spain; nor was to take cognizance of the offences supposed against that law.] There has been started an objection, that a company baving been established by our government for the trade of slaves, it were unjust to deprive them here.— No: the government incorporated them with such powers as individuals had used by custom, the only title on which that trade subsisted; I conceive, that bad never extended, nor could extend, to slaves brought hither; it was not enlarged at all by the incorporation of that company, as to the nature or limits of its authority. It is said, let slaves know they are all free as soon as arrived here, they will flock over in vast numbers, over-run this country, and desolate the plantations. There are too strong penalties by which they will be kept iu; nor are the persons who might convey them over much induced to attempt it; the despica