The national era. [volume] (Washington [D.C.]) 1847-1860, 1858-03-18


the answer vas
I'VE are of opinion that slave, by coming
from the West Indies into Great Britain or
Ireland, either with or withort his master.
does not become free, and thai his masters
right and property in him is not thereby deter
mined or varied, and that baptism does not
bestow Freedom upon him, or make any altera-
ton in his temporal condition in these King.
doms. We are also of the opinion that the
master may legally compel him to return again
to the plantation"
This is explicit enough. 1t does not declare
in so many words, that African Slavery il
recognised by the Common Law of England :"
but the implication is that there is nothing in
the Common Law to forbid it.
But this was not a judicial decision it was
merely the opinion of two lawyers, who, what
ever their standing, could not settle the law. It
is true, that subsequently,, in the year l74s the
same question again coming sup before Sir
Philip Yorke, then Lord Chancellor of Eng
land, under the title of Lord Hardwicke. he.
In decree in Chancery on the case before
him, affirmed the same doctrine. But we have
no record OF any argument in the case, and it
must further be observed that during the De-
Rod In which this opinion was given. and this
decree made, the question was constantly I;t;.
gated, and it was commended that both were in
direct opposition to the common law of Eng
land, and to the general current of judicial
decisions. No one considered tae question set.
tied, and agitation went on untis the year I'LL,
when the Somerset case was brought before
the highest tribunal of the Kingdom, and the
question distinctly submitted, Car Slavery exist
in England?
This question had been agitsstd in England
from nearly the beginning of the century.
Gases of negroes claimed as slaves had come
before the courts in various forms, bat been
disposed OF without any decision of the oues.
ton. The opinion of the Judge, in the matter
Oh 'ne hssiento contract, as we Lave seen, did
not touch it. The opinions of tie two Lawyers
quoted by Mr.. Benjamin were IN the afirma.
tive OF the question, as we'll as the decree in
chancery-but no lawyer will contend that thew
were conclusive. They were authorities. but
not sufficient to settle the Law If the Kingdom.
to determine the Jurisprudence of England.
And yet, they are the only authorities cited BY
Mr.. Benjamin in support of his assumption.
For the first time, the question, Can African
Slavery exist in England, was distinctly pre-.
scented to the Kings Bench, I'M; argued at
full length by counsel on both sides, deliberated
upon for months, and at last decided by the
highest Tribunal: that decision declaring that
oiaVery Is not recognised by. the Common
Law, and cannot exist in England, was univer.
sally acqulesced in, has never been question.
ed by any subsequent decision, and it settled
once for all the Law of the Kingdom.
Mr.. Benjamin, an American lawyer, is mod.
est enough to say that Chief Justice Mansfield
on that-occasion, subverted the common law
OF England by judicial legislation A" Possibly
the Louisiana Senator is better acquainted with
English jurisprudence than was the Chief JUS
tice, but his argument on the point in question
does not favor that supposition.
We have seen on what slender authorities he
relies for his assumption in regard to the iuris.
prudence OF England. Those who have read
the mastery argument of Mr.. Hargrave in that
famous Somerset case, will remember that he
passed in review all the judicial decisions on
record touching the question in any way; and.
after an exceedingly fair and impartial ex.
animation of them, one by one, demonstrated
that the weight of them was against the legality
OF Slavery. The opinion of the Judges in the
matter OF the Assiento contract, he did not even
refer to, doubtless because it had nothing to do
with the question; nor did he deem the opinion
OF the Attorney General and Solicitor General.
evidently given under the pressure of powerful
Moneyed Interest, worthy of notice, as they
were not judicial decisions. But, be did ex.
anime seven cases, tried by the courts, some of
them OF great weight, none of which, however.
Is taken into the account by Mr. BENJAMIN, in
making up his opinion concerning English iuris.
prudence. Was he ignorant of them. or did
he choose to forget them2 In not one of them
was the action favorable to the assumption of
the lawfulness of Slavery; in four of them.
it was decidedly adverse to it; two cases are
worthy OF special notice. In one before the
Kings Bench, the plaintiff declared for c 20. for
q negro sold by him 70 the defendant, in Lon. |
don; and on motion in arrest OF Judgment. the !
Court held that the plaintiff should have aver !
red in the declaration that the negro at the time |
OF the sale was in Virginia, and that negroes, |
by the laws and statutes of Virginia, are sale
able. Had slavery been lawful in England. |
such an averment would not have been neces- |
sary. But, says Mr.. Hargrave, "the influence !
of this case on the question of Slavery, is not |
by mere inference from the courts opinion on |
the plaintiffs mode of declaring his action. |
The language of the judges in giving that opin-
ion is remarkably strong against the Slavery of |
negroes and every other new Slavery attempted
to be introduced into England. Mr.. Justice
Powell says: In villein the owner has prop |
erty; the villein is an inheritance but the law
takes no notice of negro Lord Chief JUS |
tice Holt is still more explicit, for he says, that
one may be villein in England, but that, so |
soon as a negro comes into England be becomes
Free" ,-.---.---- e..
Our readers will recolect that Mr.. BENJAMIN |
quoted this same chief Justice Holt, to prove |
that by the common law of England negro |
Slavery was recognised in that countryl We
showed that his opinion, quoted by Mr.. Benja-
min, related merely to the character of negroes
engaged to be transported from Africa to the
Spanish American Colonies, and had nothing
to do with the question of the lawfulness of
Slavery in England. The decision quoted by
Mr. Hargrave shows that we were right In
this very case, the Court implicitly recognised
negroes as merchandise under the law of Vir. |