Title: Judicial cases concerning American slavery and the negro
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Permanent Link: http://ufdc.ufl.edu/UF00023686/00001
 Material Information
Title: Judicial cases concerning American slavery and the negro
Physical Description: 5 v. : ; 26 cm.
Language: English
Creator: Catterall, Helen Tunnicliff, 1870-1933 ( ed )
Matteson, David Maydole, 1871-1949
Publisher: Carnegie institution of Washington
Place of Publication: Washington D.C
Publication Date: 1926-37
 Subjects
Subject: Slavery -- Cases -- United States   ( lcsh )
Slavery -- Cases -- Canada   ( lcsh )
Slavery -- Cases -- Great Britain   ( lcsh )
Slavery -- Cases -- Jamaica   ( lcsh )
African Americans -- Legal status, laws, etc   ( lcsh )
Genre: non-fiction   ( marcgt )
 Record Information
Bibliographic ID: UF00023686
Volume ID: VID00001
Source Institution: University of Florida
Rights Management: All rights reserved by the source institution and holding location.
Resource Identifier: aleph - 000622846
oclc - 01937909
notis - ADF2244
lccn - 27001860

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Judicial Cases

concerning

American Slavery and the Negro



EDITED BY
HELEN TUNNICLIFF CATTERALL
(MRS. RALPH C. H. CATTERALL)



VOLUME I

Cases from the Courts of
England, Virginia, West Virginia, and Kentucky


WASHINGTON, D. C.
PUBLISHED BY THE CARNEGIE INSTITUTION OF WASHINGTON
1926
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CARNEGIE INSTITUTION OF WASHINGTON

PUBLICATION NO. 374


PAPERS OF THE DEPARTMENT OF HISTORICAL RESEARCH

J. FRANKLIN JAMESON. EDITOR







































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PREFACE.
That the history of American slavery and of the American negro forms
a most important chapter in the history of the United States no one will
deny. An institution that for two centuries formed a principal basis of
economic and social life throughout large parts of the country, a porten-
tous growth in the body politic, whose removal called for the sharp sur-
gery of civil war, a residual mass of difficult problems in the relations of
races, the historical development of a tenth of our present population-
such elements as these invest the theme with an interest and importance
that will not be questioned. Anyone however who is solicitous for the
secure and orderly progress of American historical studies will readily
perceive that this chapter of American history is very insufficiently docu-
mented. Of the hundreds of volumes of historical materials which the
federal and state governments and our numerous historical societies have
poured forth, almost none concerns the history of the American negro
and of American slavery. Political and other reasons make it unlikely
that in the immediate future-apart from the excellent work which is
being done, with limited means, by the Association for the Study of Negro
Life and History-such organizations, governmental or private, will do
much toward illuminating by documentary publications this large and
momentous chapter in our history.
It is true that a multitude of books were written in former times, and
are still available, on those aspects of slavery, moral or Biblical or consti-
tutional, which were involved in the question of its abolition. Students
of the present day have little need of additional material for the under-
standing of that ancient debate. Now that the agitations of the 'fifties
and 'sixties have receded a long way into the past, and the contest over
slavery has taken its place in perspective as an episode, though a gigantic
and fateful episode, in the history of the continent, students of history
are more concerned to learn what they can of American slavery as an
actual institution, of its character and implications in social and economic
life. Here they find themselves very inadequately supplied with trust-
worthy materials. Often they must rely on the observations of travellers.
How insecure is this reliance, we may judge from what we sometimes
read in 1926 in the books of travellers who do us the honor to inspect us
under the easy conditions of twentieth-century travel; and the travellers
who visited the regions of slavery in the earlier part of the nineteenth cen-
tury had a much more restricted range, and were apt to base their obser-
vations on plantations belonging to that special class of persons to whom
European ladies and gentlemen were given introductions. Statistical ma-
terial on the economics or the social character of American slavery is not
on the whole copious, nor beyond a certain point illuminating. If there
iii


J_ ",P-








Preface


are other classes of sources which can be drawn upon for increase of our
knowledge, there is a real need that they should be exploited.
Under such conditions of demand and of probable (or improbable)
supply, the Department of Historical Research in the Carnegie Institu-
tion of Washington has felt itself to be distinctly called upon to turn
some of its endeavors in this direction. More than one project of publi-
cation of sources for negro history has been framed, but the work which
is farthest advanced at the present time is that of which the first volume
is herewith presented, a series of volumes into which shall be drawn off
the historical materials concerning American slavery and the negro that
are to be found imbedded in the published volumes of judicial reports.
Constituted as American society is, all large aspects of American eco-
nomic or social life are certain to find ample representation in these
reports-save only that cases of the lowest grade of importance are not
so likely to find their way up to those high tribunals whose decisions are
preserved in printed volumes. Thousands of cases concerning slavery and
the negro appear in them. The total mass of the decisions which they
record exhibits fully and in detail the development of American law re-
specting slavery and the negro, in so far as that law was the product of
judicial determination. A similar value attaches to the English decisions.
Even more valuable to the historian is the mass of factual data which the
reports offer, either in the narrative portions by which reporter or judge
or counsel explains the origin or nature of the litigation or in the quota-
tions from documents-wills, deeds, bills of sale, contracts, and what
not-which are imbedded in the official explanations of the case.
First and last, these reports, in their thousands of negro cases, may
be said to afford, in almost unlimited variety, instances of every sort of
complication or situation that could arise from the institution of slavery
in such a country as the United States. They show us the complications
that might arise from the presence of negro, white, and Indian blood in
varying proportions, those that in early days arose from christening or
baptism, the incidents of the slave trade, of importations into this or that
state, of the migration of free negroes from one state to another having
different laws respecting their residence, of the relations of slave hus-
bands to slave wives, of free negro husbands to wives whom they owned
or to wives owned by others, and of white fathers to their slave children.
They present a multitude of instances of manumission, with every variety
of provision for the future of the manumitted, in America or in Liberia,
and for that of their existing or future offspring. They give us many
glimpses of sales and prices, and of the deceptions that might be practised
in respect to the physical condition or usefulness of slaves sold. In the
numerous cases turning on the distribution of the estates of persons dying
intestate, on dowry, and on wills, they reveal the varying dispositions of
masters and mistresses toward their human property, the opportunities
for influence of favorite slaves, and the difficulties produced by ambigui-







Preface


ties in the law as to whether slaves were real or personal property. They
show us in divers forms the practice of giving little negroes to children,
of hiring out adults, and of letting them hire themselves out and lay up
money. They show us runaways, cases of kidnapping, and the withdrawal
of slaves by the retiring British forces in 1814. Escapes to Canada or
Ohio, and the effects of permitted temporary residence of slaves in the
Northwest Territory or the states formed from it, or in other free states,
figure largely in them, especially in the later years. They exhibit many
instances of crimes and punishments, of imprisonments and escapes and
executions, negro church cases, railroad and steamboat cases, cases of
accidents in mines and brawls in taverns. Most of all they lay before our
eyes the incidents of plantation and farm life in the South. In the final
years there are, in each state, cases showing the local effects of war, of the
Proclamation of Emancipation, and of the Thirteenth Amendment. Other
aspects of economic or social life which they illustrate are indicated in the
introductions prefixed to the cases derived from the law reports of indi-
vidual states.
The varieties of incident are, indeed, far too numerous to be described
or indicated in a preface. And they are not varieties of incident that
might have presented themselves or could be imagined; they are records
of actual happenings, and can be relied upon to exhibit the very form
and pressure of the time "-the time when slavery prevailed in something
like half of the United States.
A constant difficulty in documenting any portion of economic or social
history lies in the fact that most commonly the mass of available material
is so great and so various that a selection must be made, and selection may
often be (or, what is almost equally injurious, may be suspected of being)
a biassed selection, consciously or unconsciously influenced by the selector's
desire that one or another view should be sustained by the evidence pub-
lished. It is submitted that a compilation like the present may be held
exempt from this suspicion, since it is not based on any process of selec-
tion, biassed or unbiassed, but except for repetitious matter, presents the
apposite portions of all the cases relating to slavery and the negro which
have been found.
This excepting of repetitious matter should perhaps be stated in more
precise terms. Mrs. Catterall has, to wit, omitted repetition of cases
(hundreds in number under each variety) where all that concerns slavery
is that a slave is a gift from a father to a son or a daughter, that a slave
is willed to a member of the owner's family, that a slave is levied on as a
horse would be, or that an unsound slave has been sold without mention
of his disease or disability. Narrations have also been omitted where there
is repetition of the same happenings, as in the instance of a new trial or
of a case carried to a higher court on appeal or writ of error.
The plan of the series, and of the present volume, is to draw off from
each reported case all those narrations, statements of fact, or quoted docu-








Preface


ments which concern American slavery or the negro, and, as far as is
possible, to present them in the words of the original printed report, but
to effect the economies of space necessary in dealing with so many thou-
sands of pages by omitting whatever is extraneous to the purpose of the
volumes, whatever contributes nothing to the illustration of slavery as an
institution and to the history of the American negro. Rigid compression
has therefore been exercised, but only in verbiage and other non-essentials,
not by the omission of anything relevant. Thus a case which in the reports
occupies many pages may here be found reduced, without loss for our
purposes, to the few lines of narrative or document which are all it con-
tains that has to do with slavery or the negro.
This abbreviated quotation of the facts is followed by an abbreviated
version of the judicial opinion, if the judge or judges rendered any that
concerned the law of slavery or the legal position of the negro. Sometimes
the editor has for this purpose made use of the reporter's summary which,
commonly in smaller print, is prefixed to his full report of the decision.
Most often, however, she has with great care and exactness made her own
condensed summary of the law pronounced by the-court, using when prac-
ticable its own words but studying brevity.
In addition to the cases embraced in the regular volumes of the report-
ers, those also have been included which appear in collected form in the
historical publications of states or the volumes put forth by historical
societies-for instance, in such works as the Maryland Archives (Provin-
cial Court series) or Dr. Mcllwaine's Minutes of the Council and General
Court of Colonial Virginia. Such records, as a rule, pertain to the earliest
colonial periods, while the law reports of most of the states begin at com-
paratively late dates, well subsequent to independence. For this reason,
large gaps in the chronological sequence will be seen in the case of some
states, since the series is dependent for its material on the reports which
in various jurisdictions happen to have been put into print.
Under each state, the cases are set in chronological order, cases in the
federal courts arising in that state being incorporated in the places where
their dates would bring them. The compilation has been brought to a
close, in each state, at the end of the year 1875, ten years after the ending
of slavery in the United States. By that time the immediate consequences
of abolition had been worked into the law. After it, some cases with
retrospective interest occur, but neither their number nor their novelty is
such as to repay the labor of searching for them in the increasingly
voluminous reports of the last fifty years.
The present volume contains the English cases, naturally placed in the
first volume of the series, and those heard and determined in the highest
courts of Virginia, oldest of the colonies, of West Virginia, and of Ken-
tucky, whose jurisprudence for obvious historical reasons followed some-
what closely that of Virginia. Other states, Southern, Northern, and
Western, and the few Canadian and Jamaican cases, will occupy the sub-








Preface


sequent volumes, the Carolinas receiving, probably, the first place in the
second volume. That the English cases are continued beyond 1783, to the
same date of 1875 as the American cases, will be understood to be due in
part to the close connection of some of them with the determinations in
earlier cases like that of Somerset, and in part to their relation to the later
slave trade to America.
As to matters of form, the citations to reports, in the headings of the
cases, are expressed with the abbreviations which seem to be most used,
except that when a given report or reporter is sufficiently indicated by a
single surname, that name has been printed in full, without abbreviation.
All the abbreviations or other designations of books laid under contribu-
tion, or cited, are explained in a list which follows the table of contents.
Cases in United States courts are cited by reference to the volumes of
Federal Cases, from which for convenience they have been taken, but
references to the original volumes follow in parentheses.
Explanatory or supplementary words inserted by the editor in quoted
passages, and page-numbers indicating change or turn of page in quoted
passages, are set in square brackets. The punctuation of quotations has
been preserved with a rigid exactness that will perhaps seem to some
readers a Chinese fidelity; but the occasional ending of quotations with
commas and semicolons, under the systematic compression adopted in
the book, seemed a lesser evil than to mislead the reader by imposing a
re-formed punctuation that in many cases might alter or obscure the
meaning of the original text.
In quoted passages the spelling and capitalization of the books quoted
has been followed, except that, in quotations from early records, the use
of u and v, and of i and j has been modernized, and has been printed in-
stead of the manuscript symbol &, the abbreviations for which and with
and a few similar abbreviations have been expanded, and, as a matter of
course, th in the and that and then has been printed th, and not y! Where
quoted texts are accompanied in the original volumes by annotations
which it is deemed expedient to preserve, they have for the most part been
transferred as they stood, without attempt to regularize the forms in
which they have cited statute-books and the like.
In the introductions, the editor has with much learning and perspicuity
explained the development of the law and of judicial opinion in regard to
various matters incident to slavery which come up in the cases presented
from the English courts or those of the respective states. It is believed
that these will be found to be valuable contributions to the history of that
field of jurisprudence in which these volumes have their place.
The index has been prepared by Mr. David M. Matteson, of Cambridge,
Massachusetts.
J. FRANKLIN JAMESON.
WASHINGTON, AUGUST 26, 1926.

































CONTENTS. PAGE
PREFACE .................................................................... iii
LIST OF ABBREVIATIONS ....................................................... Xi
ENGLAND
Introduction ..... .................................................... I
English Cases ................... ....................................... 9
VIRGINIA
Introduction ................................................ ...... 53
Virginia Cases ..................................................... 76
WEST VIRGINIA
Introduction .............................................. ......... 266
West Virginia Cases ........... ......................................... 267
KENTUCKY
Introduction ......................................... ................ 269
Kentucky Cases ....................................... .... ........ 280
INDEX ........................................ ........................... 471


















LIST OF ABBREVIATIONS.
Acton = Thomas H. Acton, Reports of Cases argued and determined before the Lords
Commissioners of Appeals in Prize Causes.
A. K. Marsh. = Alexander K. Marshall, Decisions of the Court of Appeals of Kentucky.
Ambler = Charles Ambler, Reports of Cases argued and determined in the High Court
of Chancery.
Amer. Law Reg. N. S. = American Law Register, new series (Philadelphia).
Bac. Ab. = Matthew Bacon, A New Abridgment of the Law.
B. and Aid. = Richard V. Barnewall and Sir Edward H. Alderson, Reports of Cases
argued and determined in the Court of King's Bench.
B. and C. = Richard V. Barnewall and Sir Cresswell Cresswell, Reports of Cases argued
and determined in the Court of King's Bench.
Barradall = Virginia Colonial Decisions: the Reports by Sir John Randolph and by
Edward Barradall of Decisions of the General Court of Virginia, vol. II.
Barton = Robert T. Barton, Virginia Colonial Decisions.
Bos. and Pul. = Sir John B. Bosanquet and Sir Christopher Puller, Reports of Cases
argued and determined in the Courts of Common Pleas.
Bibb = George M. Bibb, Reports of Cases at Common Law and in Chancery, argued and
decided in the Court of Appeals of the Commonwealth of Kentucky.
B. Mon. = Ben Monroe, Reports of Cases at Common Law and in Equity, decided in
the Court of Appeals of Kentucky.
Bott P. L. Const Edmund Bott, A Collection of Decisions of the Court of King's Bench
upon the Poor Laws, ed. Francis Const.
Bro. and Lush. = Ernst Browning and Vernon Lushington, Reports of Cases decided in
the High Court of Admiralty.
Brockenbrough = John W. Brockenbrough, Reports of Cases decided by the Honourable
John Marshall, late Chief Justice of the United States, in the Circuit Court of the
United States for the District of Virginia and North Carolina.
Bush= W. P. D. Bush, Reports of Selected Civil and Criminal Cases decided in the
Court of Appeals of Kentucky.
Call = Daniel Call, Reports of Cases argued and adjudged in the Court of Appeals of
Virginia.
Campbell= John, lord Campbell, Reports of Cases determined at Nisi Prius.
Car. and Kir. = Frederick A. Carrington and Andrew V. Kirwan, Reports of Cases
argued and ruled at Nisi Prius.
Carthew = Thomas Carthew, Reports of Cases adjudged in the Court of King's Bench.
Causes C416bres = [Francois Gayot de Pitaval], Causes C~ilbres et Intiressantes.
C. B. (N. S.)= John Scott, Common Bench Reports, New Series.
Chr. Rob. = Sir Christopher Robinson, Reports of Cases argued and determined in the
High Court of Admiralty.
Cl. and Fin. = Charles Clark and William Finnelly, House of Lords Cases.
Co. Lit. = Coke upon Littleton" = Sir Edward Coke, The First Part of the Institutes
of the Laws of England.
Dallas = Alexander J. Dallas, Reports of Cases ruled and adjudged in the Several Courts
of the United States and of Pennsylvania held at the Seat of the Federal
Government.
Dallas Laws = Alexander J. Dallas, Laws of the Commonwealth of Pennsylvania.
Dana= James G. Dana, Reports of Select Cases decided in the Court of Appeals of
Kentucky.
Diet. of Dec. = William M. Morison, Decisions of the Court of Session.
Dig. (in Kentucky Cases) or Dig. L. K. (See Litt. L. K., Myers Sup., and Stanton Dig.)
Dig. = Justinian's Digest.
Dodson = Sir John Dodson, Reports of Cases argued and determined in the High Court
of Admiralty.









List of Abbreviations


Douglas = Sylvester Douglas, baron Glenbervie, Reports of Cases argued and deter-
mined in the Court of King's Bench.
Duvall = Alvin Duvall, Reports of Selected Civil and Criminal Cases decided in the
Court of Appeals of Kentucky.
Eden = Robert H. Eden, baron Henley, Reports of Cases argued and determined in the
High Court of Chancery.
El. and Bl. = Thomas F. Ellis and Colin Blackburn, Reports of Cases argued and deter-
mined in the Court of Queen's Bench and the Court of Exchequer Chamber.
Espinasse = Isaac Espinasse, Reports of Cases argued and ruled at Nisi Prius.
Exch. = Reports of Cases argued and determined in the Courts of Exchequer and
Exchequer Chamber.
Fed. Cas. = The Federal Cases, comprising Cases argued and determined in the Circuit
and District Courts of the United States.
Gilmer = Francis W. Gilmer, Reports of Cases decided in the Court of Appeals of
Virginia.
Grattan = Peachy R. Grattan, Reports of Cases decided in the Supreme Court of Ap-
peals, and in the General Court of Virginia.
Hagg. Adm. = John Haggard, Reports of Cases argued and determined in the High
Court of Admiralty.
Har. and McH. = Thomas Harris, jr., and John M'Henry, Maryland Reports.
Hardin = Martin D. Hardin, Reports of Cases argued and adjudged in the Court of Ap-
peals of Kentucky.
Harr. Del. = Samuel M. Harrington, Reports of Cases argued and adjudged in the
Superior Court and Court of Errors and Appeals of the State of Delaware.
H. Bl. = Henry Blackstone, Reports of Cases argued and determined in the Courts of
Common Pleas and Exchequer Chamber.
Hen. and M. = William W. Hening and William Munford, Reports of Cases argued and
determined in the Supreme Court of Appeals of Virginia.
Hening = William W. Hening, The Statutes at Large of Virginia.
Howard = Benjamin C. Howard, Reports of Cases argued and adjudged in the Supreme
Court of the United States.
Howell St. Tr. = Thomas B. and Thomas J. Howell, State Trials.
Hughes C. C. = Robert W. Hughes, Reports of Cases decided in the Circuit Courts of
the United States for the Fourth Circuit.
Hughes Ky. = James Hughes, A Report of the Causes determined by the Late Supreme
Court for the District of Kentucky, and by the Court of Appeals, in which Titles to
Land were in Dispute.
Inst. = Sir Edward Coke, Institutes of the Laws of England.
Jefferson = Thomas Jefferson, Reports of Cases determined in the General Court of
Virginia.
J. J. Marsh. = J. J. Marshall, Reports of Cases at Law and in Equity, argued and de-
cided in the Court of Appeals of the Commonwealth of Kentucky.
John. N. Y. = William Johnson, Reports of Cases argued and determined in the Supreme
Court of Judicature New York.
Keble = Joseph Keble, Reports in the Court of King's Bench.
Knapp = Jerome W. Knapp, Reports of Cases argued and determined before the Com-
mittees of the Privy Council.
Ky. Dec. = Decisions of the Court of Appeals of the State of Kentucky.
Ky. Op.= Kentucky Opinions, containing the Unreported Opinions of the Court of
Appeals.
Ld. Raym. = Robert, lord Raymond, Reports of Cases argued and adjudged in the Courts
of King's Bench and Common Pleas.
Leigh = Benjamin W. Leigh, Reports of Cases argued and determined in the Court of
Appeals and in the General Court of Virginia.
Levinz = The Reports of Sir Creswell Levinz, Knt. (King's Bench).
Littell = William Littell, Reports of Cases at Common Law and in Chancery, decided by
the Court of Appeals of the Commonwealth of Kentucky.
Litt. L. = William Littell, The Statute Law of Kentucky.









List of Abbreviations


Litt. L. K.= William Littell and Jacob Swigert, A Digest of the Statute Law of
Kentucky.
Litt. Sel. Cases = William Littell, Cases Selected from the Decisions of the Court of
Appeals of Kentucky, not heretofore Reported.
Lofft = Capell Lofft, Reports of Cases adjudged in the Court of King's Bench.
Marsden= Reginald G. Marsden, Reports of Cases determined by the High Court of
Admiralty.
Mass. = Reports of Cases argued and determined in the Supreme Judicial Court of the
Commonwealth of Massachusetts.
McIlw. = Henry R. McIlwaine, Minutes of the Council and General Court of Colonial
Virginia.
Md. Arch. = Archives of Maryland.
Met. Ky. = James P. Metcalfe, Reports of Selected Civil and Criminal Cases decided in
the Court of Appeals of Kentucky.
Mo. = Reports of Cases argued and decided in the Supreme Court of the State of
Missouri.
Mod. = Modern Reports; or, Select Cases adjudged in the Courts of King's Bench, Chan-
cery, Common Pleas, and Exchequer.
Mont. and Ayr. = Basil Montagu and Scrope Ayrton, Reports of Cases in Bankruptcy
decided by the Lord Chancellor Brougham.
Moore P. C. = Edmund F. Moore, Reports of Cases heard and determined by the Judi-
cial Committee of the Privy Council.
Munford = William Munford, Reports of Cases argued and determined in the Supreme
Court of Appeals of Virginia.
Myers Sup. = Harvey Myers, A Digest of the General Laws of Kentucky. [Supple-
menting Stanton.]
Patt. and H. = John M. Patton, jr., and Roscoe B. Heath, Reports of Cases decided in
the Special Court of Appeals of Virginia.
Peters = Richard Peters, Reports of Cases argued and adjudged in the Supreme Court
of the United States.
Q. B. = John L. Adolphus and Thomas F. Ellis, Queen's Bench Reports, New Series.
Quart. Law J. = Quarterly Law Journal (Richmond, Va., 1856-1859).
Randolph = Peyton Randolph, Reports of Cases argued and determined in the Court of
Appeals of Virginia.
Rand. Sir J. = Virginia Colonial Decisions: the Reports by Sir John Randolph and by
Edward Barradall of Decisions of the General Court of Virginia, vol. I.
R. C. or Rev. Code = Revised Code of the Laws of Virginia, eds. of 1785, 1794, 1803-
1808, 1812, 1819, or 1849.
Rev. St. (Ky.) or R. S. = C. A. Wickliffe, S. Turner, and S. S. Nicholas, The Revised
Statutes of Kentucky.
Rob. Va. = Conway Robinson, Reports of Cases decided in the Supreme Court of Ap-
peals, and in the General Court of Virginia.
R. S. = Rev. St. (Ky.), supra.
Rushworth = John Rushworth, Historical Collections.
Salkeld = William Salkeld, Reports of Cases adjudged in the Court of King's Bench.
Shower = Sir Bartholomew Shower, Reports of Cases adjudged in the Court of King's
Bench.
Simons = Nicholas Simons, Reports of Cases decided in the High Court of Chancery.
Stanton Dig. = Richard H. Stanton, A New Digest of the Decisions of the Court of
Appeals of Kentucky.
Stanton R. S. = Richard H. Stanton, The Revised Statutes of Kentucky.
Stat. = The Statutes at Large of the United States of America.
St. L. (Ky.)= C. S. Morehead and Mason Brown, A Digest of the Statute Laws of
Kentucky.
Swabey = M. C. Merttins Swabey, Reports of Cases decided in the High Court of
Admiralty.
T. B. Mon.= Thomas B. Monroe, Reports of Cases at Common Law and in Equity,
argued and decided in the Court of Appeals of the Commonwealth of Kentucky.
Term R. = Charles Durnford and Edward H. East, Term Reports in the Court of King's
Bench.








xiv List of Abbreviations

Tucker = St. George Tucker, edition of Blackstone's Commentaries.
Va. Ca.= William Brockenbrough and Hugh Holmes, A Collection of Cases decided
by the General Court of Virginia.
Va. Mag. Hist. = Virginia Magazine of History and Biography.
Vernon = Thomas Vernon, Cases argued and adjudged in the High Court of Chancery.
Wallace = John W. Wallace, Cases argued and adjudged in the Supreme Court of the
United States.
Wash. Va. = Bushrod Washington, Reports of Cases argued and determined in the
Court of Appeals of Virginia.
Wheaton= Henry Wheaton, Reports of Cases argued and adjudged in the Supreme
Court of the United States.
W. Rob. = William Robinson, Reports of Cases argued and determined in the High
Court of Admiralty.
W. Va. = Reports of Cases decided in the Supreme Court of Appeals of West Virginia.
Wythe = George Wythe, Decisions of Cases in Virginia by the High Court of Chancery.












JUDICIAL CASES CONCERNING SLAVERY.
ENGLAND.
INTRODUCTION.
Since the days of Solomon and before, short pithy sayings-proverbs
or maxims-have crystallized popular sentiment or belief, or given an
epitome of race experience. The law abounds in such succinct phrases;
they emblazon the pages of equity jurisprudence. In the law of slavery
three such maxims have become famous, and have influenced the history
of that institution and the judicial decisions concerning it. The first occurs
in a case reported by Rushworth: 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 breath in." The case is cited by Hargrave,
counsel for the negro, in the Somerset Case.2 Wallace, on the opposite
side, maintained that "slaves could breathe in England: For villains
were in this country, and were mere slaves, in Elizabeth." 8 Dunning, on
the same side, is willing to admit the truth of the maxim as applied to
Russian slaves: Russian slavery is not here to be tolerated." 'Tis
not absurd in the idea, as quoted, nor improbable as matter of fact; the
expression has a kind of absurdity." (Its poetical value does not appeal
to him.) He does not admit that it has any bearing on African slavery:
"neither the air of England is too pure for a slave to breathe in, nor
the laws of England have rejected servitude." Serjeant Davy replies:
" For the air of England; I think, however, it has been gradually purifying
ever since the reign of Elizabeth. Mr. Dunning seems to have discovered
so much, as he finds it changes a slave into a servant; tho' unhappily, he
does not think it of efficacy enough to prevent that pestilent disease reviv-
ing, the instant the poor man is obliged to quit (voluntarily. quits, and
legally, it seems we ought to say,) this happy country. However, it has
been asserted, and is now repeated by me, this air is too pure for a slave
to breathe in; I trust, I shall not quit this court without certain conviction
of the truth of that assertion."
Lord Stowell in his judgment in the case of the Slave Grace," in 1827,
thus comments: "The arguments of counsel in that decisive case of

12 Historical Collections 468.
220 How. St. Tr. I (51), called "The Case of James Sommersett, a Negro." An
earlier report is found in Lofft i, where the case is entitled Somerset v. Stewart. This
report is used by the editor except for the statement of facts and for Hargrave's argument,
which is obviously not reported altogether correctly by Lofft, but, in the Howell collection,
is copied from Hargrave's manuscript.
3 Lofft I (8).
4Lofft I (ii).
5 2 Hagg. Adm. 94.








Judicial Cases concerning Slavery


Sommerseft, 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 enforce-
ment: 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."
Lord Stowell's rather scoffing reference 6 to the peculiar nature, as it
were, of our own soil aims at another time-hallowed maxim, popularly
supposed to be the kernel of the judgment in the Somerset case,7 that, as
soon as a slave sets foot on English soil, he is free. This maxim which
has been the pride of generations of Englishmen did not originate in
England. It was invoked by the Dutch from an early day: adeo quidem
ut servi, qui aliunde huc adducuntur, simul ac imperil nostri fines intrArunt,
invitis ipsorum dominis ad libertatem proclamare possint: id quod et
aliarum Christianarum gentium moribus receptum est." 8 France is one
"aliarum Christianarum gentium," among which this custom prevailed:
" Les maximes si precieuses du droit Francois accordent A la seule entree
dans ce royaume, au seul air qu'on y respire, le droit de la liberty." 9
The maxim occurs in English judicial decisions first in the case of
Smith v. Brown and Cooper.'o The plaintiff had sold the defendant a
negro in parochia beatae Mariae de Arcubus in warda de Cheape," for
twenty pounds, and brought suit for that sum. The verdict was for the
plaintiff, but a motion was made in arrest of judgment, whereupon 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." He directed the plaintiff
to amend his declaration, by averring that the said negro at the time of
sale was in Virginia, and that negroes, by the laws and statutes of Virginia,

6 Attorney General Martin of Maryland likewise scoffed at the maxims in 1799: The
British air is supposed to electrify the flesh-putting a foot on the island, the nature is
instantly changed, and if a slave before, becomes thereby free." Mahony v. Ashton,
4 Har. and McH. 295 (324).
7 Lord Mansfield himself declared, in 1785, in Rex. v. Thames Ditton [4 Doug. 300]:
[301] "The determinations go no further than that the master cannot by force compel
him [the negro] to go out of the kingdom In the case relating to villeins, it was
held that the lord could not by force take them out of the country. .The case of
Somerset is the only one on this subject."
8 S. van Groenewegen van der Made, Tractatus de Legibus Abrogatis in Hollandia,
P. 5.
9 13 Causes Celebres 492 (495 et seq.), ed. of 1747.
10 2 Salkeld 666. This case is undated, but is printed just before the case of Smith v.
Gould, 2 Salkeld 666, Pasch. 1706, and on the same page. The plaintiff may have been the
same in both cases, and the date probably the same. The latter is the "case in Salk.
666" cited by Lord Chancellor Hardwicke in 1749 in Pearne v. Lisle (infra), but Lord
Chief Justice Holt's famous saying occurs only in the former. His name is not even
mentioned in the latter, as reported by Salkeld. Both cases in Salkeld have the same
subreference, "2 Ld. Raym. 1274," which is between the parties, Smith and Gould.
Lord Raymond reports that "the writ of inquiry of damages was executed before the
lord chief justice Holt at Guildhall in London" but quotes none of his words, giving
only the decision "per totam curiam," wherein there is no mention of the soil of
England.








England: Introduction


are saleable as chattels. Then the attorney-general comingtin, said, they
were inheritances, and transferrable by deed, and not without: And noth-
ing was done." "Lord Holt's opinion is a mere dictum," as Wallace
truly says in the Somerset case,12 a decision unsupported by precedent."
In 1729 a petition was presented to Sir Philip York [e], then Attorney-
General, and Mr. Talbot, Solicitor-General," 1 in Lincoln's Inn Hall,
after dinner; on the earnest solicitation of many merchants" 14 and
" British planters,"1 [for] a notion had prevailed, if a negro came
over, or became a christian, he was emancipated." 1 They "pledged
themselves to the British planters, for all the legal consequences of slaves
coming over to this Kingdom or being baptized." We are of opinion,
that a slave, by coming from the West Indies, either with or without his
master, to Great Britain or Ireland, doth not become free; and that his
master's property or right in him is not thereby determined or varied;
and baptism doth not bestow freedom on him, nor make any alteration
in his temporal condition in these kingdoms. We are also of opinion, that
the master may legally compel him to return to the plantations." This
opinion was affirmed by Sir Philip in 1749, when he had become Lord
Chancellor Hardwicke, in the case of Pearne v. Lisle." He comments
on the case in Salk. 666 ": 9 The reason said at the bar to have been
given by Lord Chief Justice Holt, in that case, as the cause of his doubt,
viz. That the moment a slave sets foot in England he becomes free, has
no weight with it, nor can any reason be found, why they should not be

11 The tensity of public opinion concerning slavery is reflected in the tendency of
great jurists to go out of their way to make pronouncements in that field, which are
therefore only dicta. Lord Mansfield's assertion as to slavery, "It's so odious, that
nothing can be suffered to support it but positive law,", is called by Lord Stowell an
" obiter dictum that fell from that great man." 2 Hagg. Adm. 94 (107). And the Dred
Scott decision is generally held, in spite of Judge Taney's disclaimer (60 U. S. 393
[427]), to consist of nothing but dicta, aside from the question of the jurisdiction of
the court.
12 Lofft I (8).
13 33 Dict. of Dec. 14547.
14 Lord Mansfield, in the Somerset case, Lofft I (8). "The personal traffic in slaves
resident in England had been as public and as authorized 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." Lord
Stowell in the Slave Grace, 2 Hagg. Adm. 94 [105], 1827. "'T is necessary the masters
should bring them over; for they cannot trust the whites, either with the stores or the
navigating the vessel." Wallace, in arguing the Somerset case, Lofft I (8). "Every
family almost brings over a great number." Dunning, ibid., Io.
15 Ibid., 19. Lord Mansfield's further references, in the Somerset case, to the opinion
of Yorke and Talbot.
16 The planters in Virginia had done all that in them lay to avoid such a consequence,
for the general assembly, in the code of 1705, provided That a slave's being in England,
shall not be sufficient to discharge him of his slavery, without other proof of his being'
manumitted there." 3 Hening 448. And an act of 1667 provided "that the conferring of
baptisme doth not alter the condition of the person as to his bondage or ffreedome."
2 Hening 260.
17 33 Diet. of Dec. 14547.
Is Ambler 75.
19 See note 10, p. 2, supra.








Judicial Cases concerning Slavery


equally so when they set foot in Jamaica, or any other English plantation.
All our colonies are subject to the laws of England, although as to some
purposes they have laws of their own." But Lord Chancellor Henley, in
1762, in Shanley v. Harvey,20 begins his brief opinion in favor of the
negro Harvey: "As soon as a man sets foot on English ground he
is free." 21 Then comes the famous Somerset case 22 in 1771-1772.2 James
Somerset was a negro of Africa who had been brought to Jamaica (ac-
cording to Lord Mansfield) or to Virginia (according to the return
to the writ of habeas corpus),24 "to be there sold; and afterwards .
was sold in Virginia aforesaid to one Charles Steuart, esq. who was
then an inhabitant of Virginia," and was brought by his master, in
1769, to London, that is to say, in the.parish of St. Mary-le-Bow, in the
ward of Cheap." On October I, 1771, before Stewart had finished trans-
acting the business which brought him to London, Somerset quitted his
service, and "absolutely refused" to return and serve his master. On
November 26, 1771, Stewart delivered the negro to Captain Knowles to
be securely kept on board his "vessel called the Ann and Mary, then
and still lying in the river Thames, and bound upon a voyage for
Jamaica," to be kept till he should set sail, and then to, be taken with him
to Jamaica, and there sold as a slave."
While Somerset was confined in irons on board the ship, an appli-
cation was made to Lord Mansfield for a writ of habeas corpus, supported
by the affidavits of Thomas Walklin, Elizabeth Cade, and John Marlow.
The writ was allowed, directed to Mr. Knowles, and requiring him to
return the body of Sommersett before his lordship, with the cause of
detainer. Mr. Knowles on the 9th of December produced the body of
Sommersett before lord Mansfield," and the return to the writ of habeas
corpus was the ground of the determination of the court, pronounced by
Lord Mansfield on June 22, 1772:
We pay all due attention to the opinion of Sir Philip Yorke, and Lord
Chief Justice Talbot 25 recognized by Lord Hardwicke, sitting as Chan-
cellor We are so well agreed, that we think there is no occasion of
20 2 Eden 126.
21 "Lord Northington [Lord Henley in 1762], as I am informed by a friend who was
present at the hearing of the cause, disallowed the master's claim with great warmth,
and gave costs to the negro." Hargrave's argument in the Somerset case, 20 How. St.
Tr. I (55).
22 Lofft I; 20 How. St. Tr. I.
23 "'Tis now about fifty years since the opinion given by two of the greatest men of
their own or any other times, (since which no contract has been brought to trial between
the masters and slaves;)" Lord Mansfield in the Somerset case, Lofft I (17).
24 Quoted in full, jn 20 How. St. Tr. I (17). Charles Stewart, who in 1762 resided in
Virginia, was surveyor general of customs for the northern (Quebec) and eastern mid-
dle districts 1765-1767, cashier and paymaster of customs 1767-1779. He took Somerset
to England from Boston. There is a full account of the Boston aspects of the case in
7 Mass. Hist. Soc. Proc. 322-326.
25 Lord Mansfield observed earlier in the trial that this opinion was given "after
dinner; probably, therefore, might not, as he believes the contrary is not unusuall at
that hour, be taken with much accuracy." Lofft I (8).








England: Introduction


having it argued before all the judges, as is usual on a return to a
habeas corpus. The only question before us is, whether the cause on the
return is sufficient? the return states, that the slave departed and refused
to serve; whereupon he was kept, to be sold abroad. So high an act of dominion
must be recognized by the law of the country where it is used. The state
of slavery is so odious, that nothing can be suffered to support it, but
positive law. Whatever inconveniences, therefore, may follow from a decision,i
I cannot say this case is allowed or approved by the law of England; and.
therefore the black must be discharged.26
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 excep-
tion 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.27
This decision was followed in Scotland in 1778, in the case of Joseph
Knight, a Negro v. Wedderburn,28 It was held that "the defender had
no right to the Negro's service for any space of time, nor to send him out
of the country against his consent: That the Negro was likewise protected
under the act 1701, c. 6. from being sent out of the country against his
consent."
The case of Williams v. Brown 29 in 1802 is a landmark on the way to
the restriction of the maxim by Lord Stowell, in the case of the Slave
Grace. Williams, a runaway slave from the island of Grenada, in 1797
" entered at London on board the Holderness bound for Grenada, as an
ordinary seaman out and home." On the ship's arrival at Grenada his
master claimed him, and thereupon an agreement was entered into by
Brown, the master of the ship, by the master of the slave, and by the slave
himself, that the slave should be manumitted on the payment of 30 joes "
to his master by Brown, which was accordingly done by a regular instru-
ment of manumission," and Williams on the same day covenanted to serve
Brown as a sailor for three years at wages lower than the current rate.
But when the ship got back to London, the negro commenced the present
action," upon a quantum meruit, for his wages on the voyage thither,

28 Ibid., 19.
27 Lord Stowell, 2 Hagg. Adm. 94 (o16). The attitude of the public, however, is indi-
cated by the apologetic remarks of Mr. Dunning, counsel for Captain Knowles in the
Somerset case, early in his argument: "'Tis my misfortune to address an audience, the
greater part of which I fear, are prejudiced the other way. .. For myself, I would not
be understood to intimate a wish in favor of slavery, by any means; and at the close:
" I would say, before I conclude, not for the sake of the court, [but] of the audience; the
matter now in question, interests the zeal for freedom of no person, if truly considered;
. I hope, therefore, I shall not suffer in the opinion of those whose honest passions
are fired at the name of slavery. I hope I have not transgressed my duty to humanity;
nor doubt I your lordships discharge of yours to justice." Lofft I (10, 14).
28 33 Dict. of Dec. 14545; also in 2o How. St. Tr. I (2 n.).
29 3 Bos. and Pul. 69.








Judicial Cases concerning Slavery


claiming that there was no consideration for his agreement to serve for
less, in that he was already free, having once set foot in England. The
judges held a different opinion. To be sure, he was, as Lord Chief Jus-
tice Alvanley states, "as free as any of us while in England," but in
Grenada he was a runaway slave." 30
Therefore Lord Stowell, in 1827, in his judgment in the case. of the
Slave Grace,3' says of Williams v. Brown: I do think it approaches so
near as to possess the authority of a direct decision upon the immediate
subject." Williams 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 free man in England; and he would have continued
a freeman in all other parts of the world excepting Grenada."
The immediate subject was the case of the Slave Grace.82 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 [England] until 1823, and
accompanied her voluntarily on her return to Antigua. 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 ":
" she being a free subject of his Majesty was unlawfully imported as a
slave from Great Britain into Antigua, and there illegally held and de-
tained in slavery." 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 [Mr. Allan], 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 ? "
Lord Stowell, in affirming the sentence of the vice-admiralty court,
maintained that slavery was not so divested, and that it would revive on a
return: 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." Lord Stowell cites the judgment pronounced in 1749 by Lord
Chancellor Hardwicke in Pearne v. Lisle,83 affirming the opinion given
by him and Solicitor General Talbot in 1729:84

30 See pp. 23-24, infra.
'32 Hagg. Adm. 94 (122).
32 Ibid.
33 Supra, p. 3, and infra, p. 12.
34 Supra, p. 3, and infra, p. 12.








England: Introduction


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; This judgment, so pronounced in full confidence, and without
a doubt upon a practice which had endured universally in the colonies, and
(as it appears by those opinions) in Great Britain, was, in no more than
twenty-two years afterwards, reversed by Lord Mansfield. The real
and sole question which the case of Sommersett brought before Lord Mans-
field, was, whether a slave could be taken from this. country in irons and
carried back to the West Indies, to be restored to the dominion of his
master? Black seamen have navigated West India ships to this island,
but we have not heard of other Sommersetts. 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. he goes back to a place
where slavery awaits him, and where experience has taught him that slavery
is not to be avoided.
The third maxim, "Once free for an hour, free for ever!", is also
disposed of by Lord Stowell:
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 this
system of villenage was confined to this kingdom. and it [the maxim]
has never once been 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 villeinss in gross and
villeins regardant]. 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 duties 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 preva-
lent in every other part of the world, and has existed at all times.
In closing, Lord Stowell says:
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 have 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.

35 Note in Haggard: [114 n.] "Herein," says Lord Coke, "the common law differeth
from the civil law; for Libertinum ingratum leges civiles in pristinam redigunt ser-
vitutem, sed leges Angliae semel manumissum semper liberum judicant, gratum et in-
gratum." i Inst. lib. II., sect. 204.









8 Judicial Cases concerning Slavery

Suggestions for parliamentary action were made both by Lord Mans-
field and by Lord Stowell." These bore fruit in 1833, in the act of 3 and
4 William IV., emancipating the slaves in the British colonies.3" Lord
Stowell's judgment was the Dred Scott decision 9 of England.
Of the nineteenth-century cases presented in the pages which follow,
some arose from this legislation, but the greater number arose out of the
efforts of Great Britain to suppress the African slave trade.

36 "An application to parliament, if the merchants think the question of great com-
mercial concern, is the best, and perhaps the only method of settling the point for the
future." Lofft I (18).
37 2 Hagg. Adm. 94 (III, 133, 134).
38 An Act for the Abolition of Slavery throughout the British Colonies; for pro-
moting the Industry of the manumitted Slaves; and for compensating the Persons hith-
erto entitled to the Services of such Slaves. [28th August 1833.]" Section LXIV. pro-
vides, That nothing in this Act contained doth or shall extend to any of the Territories
in the Possession of the East India Company, or to the Island of Ceylon, or to the Island
of Saint Helena." Act 3 and 4 William IV. c. 73.
39 See correspondence between Lord Stowell and Judge Story, quoted, pp. 36-39, infra.















ENGLISH CASES.
Cartwright's Case, 2 Rushworth 468, 1569. "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 En-
gland was too pure an Air for Slaves to breath in."
Butts v. Penny, 2 Levinz 201, Trin. 1677.2 Trover for IOO 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 De-
fendant 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 Mer-
chants, so 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; "
Same v. same, 3 Keble 785, June 1677. Special Verdict in Trover
of o1 Negroes and a half 4 find them usually bought and sold in India,
and if this were sufficient property, or Conversion, was the question. And
Thomson, on I 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,"
Noel v. Robinson, I Vernon 90, November 1682. Sir Martin Noel
. being possessed of a moiety of a plantation beyond sea [in Bar-
bados], made his will, 23 September, 1665, and devised his said
moiety of the plantation and of the negroes [92] the assets after-
wards became deficient by the breaking of two eminent Spanish mer-
chants, that dealt in negroes, and broke for the value of 200,000 1."
Sir Thomas Grantham's Case, 3 Mod. 120, January 1687. He bought
a monster in the Indies, a man of that country, This man he .
exposed to the sight of the people for profit. The Indian turned Christian
and was baptized, and was detained from his master. The master brought

1 John Rushworth, Historical Collections. See Hargrave, in Somerset v. Stewart,
p. 16, infra.
2 Reported also, with variations, in 3 Keble 785 (infra).
3 According to Levinz, the action was for 200 negroes; but it is a mistake, the record
only mentioning Io." Note to the Sommersett Case, 20 Howell St. Tr. 51.
4 "Two tenants in common one may bring an action .for half a negro, and so
it has been allowed." Wedgewood v. Bayly, 2 Shower 177.








Judicial Cases concerning Slavery


a homine replegiando. The sheriff returned, that he had replevied the
body, but did not say, the body in which Sir Thomas claimed a property;
whereupon he was ordered to amend his return."
Noel v. Robinson, I Vernon 453, April 1687. Mr. Sergeant May-
nard's case was cited, who recovered a debt contracted here against the
executor of an owner of a plantation in Barbadoes, and by his advice an
action of trover was brought, and judgment obtained for the fourth part
of a negro."
Gelly v. Cleve, cited in I Ld. Raym. 147, (" Hill.' 5 Will. and Mar.")
1694. "adjudged that trover will lie for a Negro boy; 2 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."
Chamberline v. Harvey, 3 Ld. Raym. 129, 1696/7. Robert [Harvey,
esq.] on the first day of September .. 1695, took from"
" Willoughby Chamberline, esq one negro of the price of Ioo 1.
. at London in the parish of the Blessed Mary of the Arches in
the ward of Cheape, and kept possession of the negro aforesaid "
[5 Mod. 186] "before the trespass committed, one Edward Chamberline
was seized in fee of a plantation in Barbadoes, and of certain negro slaves
thereunto belonging; that the negro now taken was born within the said
island of negro parents, being slaves belonging to the said plantation;
that an ordinance was made in said island, that the negro slaves there
shall be real estates, that Edward Chamberline died after whose
death one third of the plantation and negro slaves (whereof this negro
was one) came to Mary his widow as her dowry, and the reversion
. to the plaintiff, as son and heir of Edward Chamberline; that the said
Mary afterwards married Sir John Witham," who brought "this very
negro into England, where he continued in the service of the said Sir John
Witham several years; that he was baptized 8 here, but without the privity
or consent of the plaintiff; that after the death of the said Mary, Sir John
Witham turned this negro out of his service, who afterwards served
several other masters here, and at the time when the trespass was sup-
posed to be committed, was in the service of the defendant, and had for
his wages six pounds by the year." "A case like this never happened
before."
Judgment for the defendant. [191] the Court were of opinion, that
no action of Trespass would lie for the taking away a man generally, but
that there might be a special action of trespass for taking his servant,
per quod servitium amisit." Also, in I Ld. Raym. 146: [147] And per
1 Hargrave says Michaelmas term." 20 How. St. Tr. 53.
2 Hargrave, ibid.: On examination of the Roll, Trin. 5 W. and M. C. B. Roll, No. 407,
I find that the action was brought for various articles of merchandize as well as the
negro; and I suspect, that in this case, as well as the former one of Butts and Penny,
the action was for a negro in America;"
3 "If baptism should be accounted a manumission, it would very much endanger the
trade of the plantations, which cannot be carried on without the help and labour of these
slaves; for the parsons are bound to baptize them as soon as they can give a reasonable
account of the christian faith; and if that would make them free. then few would be
slaves." Argument against manumission by baptism, 5 Mod. 186 (188).








English Cases


Holt chief justice, trover will not lie for a Negro, contra to 3 Keb. 785,
2 Lev. 201, Butts v. Penny." Also, in Carthew 397: An action of tres-
pass 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 dam-
ages done to the servant."
Smith v. Brown and Cooper, 2 Salkeld 666, (no date). The plaintiff
declared in an indebitatus assumpsit for 20 1.-for a negro sold by the plain-
tiff to the defendant, viz. in parochia beatae Mariae de Arcubus in warda
de Cheape, and verdict for the plaintiff; and, on motion in arrest of judg-
ment, 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. the law took no notice of a negro. Holt, C. J. You 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 that 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 attorney-general coming in, said, they were inheri-
tances, and transferrable by deed, and not without: And nothing was
done."
Smith v. Gould, 2 Salkeld 666, Pasch. 1706. "Trover for several things,
and among the rest de uno-Aethiope vocat. a negro; and, on not guilty
pleaded, verdict was for the plaintiff, and several damages; and as to the
negro 30 1. And it was moved in arrest of judgment, that trover lay not
for a negro, for that the owner had not an absolute property in him; he
could not kill him as he could an ox."
Held: Men may be the owners, and therefore cannot be the subject
of property. the Court seemed to think that in trespass quare cap-
tivum suum cepit, the plaintiff might give in evidence that the party was
his negro, and he bought him."
Id., 2 Ld. Raym. 1274. In an action of trover for a negro, and sev-
eral goods, the defendant let judgment go by default and the writ of in-
quiry of damages was executed before the lord chief justice Holt at Guild-
hall in London. Upon which the jury gave several damages, as to the
goods, and the negro; and a motion as to the negro was made in arrest of
judgment, that trover could not lie for it, because one could not have such a
property in another as to maintain this action. per totam curiam this
action does not lie for a negro, no more than for any other man; for the
common law takes no notice of negroes being different from other men. By
the common law no man can have a property in another, but in special








Judicial Cases concerning Slavery


cases, as in a villain, but even in him not to kill him: so in captives took
in war, but the taker cannot kill them, but may sell them to ransom them:
there is no such thing as a slave by the law of England. And if a man's
servant is took from him, the master cannot maintain an action for taking
him, unless it is laid per quod servitium amisit. And the court denied
the opinion in the case of Butts and Penny, and therefore judgment was
given for the plaintiff, for all but the negro, and as to the damages for
him, quod querens nil capiat per billam."
"Opinion of Sir Philip York[e], then Attorney-General, and
Mr. Talbot, Solicitor-General," 33 Dict. of Dec. 14547, 1729. We are
of opinion, that a slave, by coming from the West Indies, either with or
without his master, to Great Britain or Ireland, doth not become free; and
that his master's property or right in him is not thereby determined or
varied; and baptism doth not bestow freedom on him, nor make any
alteration in his temporal condition in these kingdoms. We are also of
opinion, that the master may legally compel him to return to the plan-
tations." 1
Pearne v. Lisle, Ambler 75, October 1749. Order for Ne exeat regno.
Affidavit: "plaintiff was entitled to fourteen Negroes at Antigua; that
his agent let them to defendant for hire, at a yearly rent which amounted
to Ioo i. Antigua money; that the defendant refuses to pay for two years
service, which is of the value of Ioo 1. sterling, and also refuses to deliver
the Negroes to plaintiff's agent: that defendant has declared he intends
to leave England soon and go to Antigua: "
Lord Hardwicke, Ch.: [76] "I will discharge the order. Ist, As to
the nature of the demand. It is for the use of Negroes. A man may hire
the servant of another, whether he be a slave or not, and will be bound to
satisfy the master for the use of them. I have no doubt but trover will lie
for a Negro slave; it is as much property as any other thing. The case in
[2] Salk. 666 [Smith v. Gould]2 was determined on the want of proper
description. It was trover pro uno AEthiope vocat. Negro, without saying
slave ; and the being Negro did not necessarily imply slave.3 The reason
said at the bar to have been given by Lord Chief Justice Holt, in that case,
as to the cause of his doubt, viz. That the moment a slave sets foot in
England he becomes free, has no weight with it, nor can any reason be
found, why they should not be equally so when they set foot in Jamaica,
or any other English plantation. All our colonies are subject to the laws
of England, although as to some purposes they have laws of their own.
There was once a doubt, whether, if they were christened, they would not
become free by that act, and there were precautions taken in the Colonies,4
to prevent their being baptised; till the opinion of Lord Talbot and myself,
1 See Somerset v. Stewart, pp. 14-18, infra.
2 Smith v. Brown and Cooper is on the same page. Lord Hardwicke seems to mix the
two cases; for, according to Salkeld, Holt quotes the maxim, "as soon as a negro comes
into England, he becomes free," only in Smith v. Brown and Cooper.
3 Holt uses "negro" as synonymous with "slave" in Smith v. Brown and Cooper,
p. II, supra.
4 See Lord Mansfield, in Somerset v. Stewart, pp. 14-15, infra.








English Cases


then Attorney [77] and Solicitor-General, was taken on that point.' We
were both of opinion, that it did not at all alter their state. There were
formerly villains or slaves in England,. and although tenures are taken
away, there are no laws that have destroyed servitude absolutely. Trover
might have been brought for a villain. As to the merits, a specific
delivery of the Negroes is prayed; but that is not necessary, others are as
good; indeed in the case of a cherry-stone, very finely engraved, and like-
wise of an extraordinary wrought piece of plate, for the delivery of which
bills were brought in this Court, they could not be satisfied any other way;
. The Negroes cannot be delivered in the plight in which they were at
the time of the demand, for they wear out with labour, as cattle or other
things; nor could they be delivered on demand, for they are like stock on a
farm, the occupier could not do without them, but would be obliged, in
case of a sudden delivery to quit the plantation. The person of the de-
fendant is amenable, for he is a native of Antigua; he is going to Antigua:
his effects, and likewise the Negroes, are there, and have been used in
that place. It is a colony subject to England, and the plaintiff may have
justice done him in the Courts there."
Sheddan v. a Negro, 33 Diet. of Dec. 14545 (Scottish case), July 1757.
" A Negro, who had been bought in Virginia, and brought to Britain to
be taught a trade, and who had been baptized in Britain, having claimed
his liberty, against his master Robert Sheddan, who had put him on board
a ship, to carry him back to Virginia, the Lords appointed counsel for the
Negro, and ordered memorials, and afterwards a hearing in presence, upon
the respective claims of liberty and servitude by the master and the negro.
But, during the hearing in presence, the Negro died; so the point was not
determined."
Also in 20 How. St. Tr. I n.
Shanley v. Harvey [Nalvey], 2 Eden 126, March 1762. This was a
bill brought by Edward Shanley, Esquire, as administrator of Margaret
Hamilton, deceased, against Joseph Harvey, a negro, and his trustees,
. The plaintiff had twelve years before brought over the defendant,
Harvey, as his slave, then only eight or nine years old, and presented him
to his niece, Margaret Hamilton, who had him baptized, and changed his
name. On the 9th of July 1752, being then very ill, she, 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 in bank notes, 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, tell nobody, and pay the butcher's bill.' He then
knelt down and thanked her. She said, 'God bless you, make a good use
of it.' The Lord Chancellor [Henley]. As soon as a inan sets foot on
English ground he is free: a negro may maintain an action against his
master for ill usage, and may have a Habeas Corpus if restrained of his
liberty. Bill dismissed with costs."
1 See Opinion of Sir Philip Yorke, supra.








Judicial Cases concerning Slavery


The Africa, Marsden 228, July 1762. "A British ship sailed from
New London in North America to Barbados, with a cargo of provisions
and lumber, which she there unladed and took on board o1 negro slaves
cleared for Guadaloupe, but sailed to Monte Christi, where she arrived
in February, 1760, and in her return was taken by an English man-
of-war."
The St. Croix, Marsden 228, March 1763. The St. Croix, laden with
sugar, was taken on her voyage from Monte Christi by an English priva-
teer, and carried into New Providence. The witnesses examined said
[229] that they brought about 180 negroes from St. Croix; about Io
were sold at Monte Christi, the rest were sent to Cape Francois that
Bodkin [one of the owners] went with the slaves and cargo to Cape
Francois and there employed a Frenchman to dispose of them, to whom he
paid 7 per. cent. on the sale whilst the ship lay at Monte Christi."
Somerset v. Stewart, Lofft I [20 How. St. Tr. I], June 1772. [20
How. i] On the 3d of December 1771, affidavits were made by Thomas
Walklin, Elizabeth Cade, and John Marlow, that James Sommersett, a
negro, was confined in irons on board a Ship called the Ann and Mary,
John Knowles commander, lying in the Thames, and bound for Jamaica;
and lord Mansfield, on an application supported by these affidavits, allowed
a writ of Habeas Corpus, directed to Mr. Knowles, and requiring him to
return the body of Sommersett before his lordship, with the cause of
detainer. Mr. Knowles on the 9th of December produced the body of
Sommersett before lord Mansfield, and returned for cause of detainer, that
Sommersett was the negro slave [23] on account of the importance of
the case, the Court postponed hearing the objections against the return,
till the 7th of February, and the recognizance for the negro's appearance
was continued accordingly. On that day Mr. Serj. Davy and Mr. Serj.
Glynn argued against the return, and the farther argument was postponed
till Easter term, when Mr. Mansfield, Mr. Alleyne, and Mr. Hargrave,
were also heard on the same side. Afterwards Mr. Wallace and Mr. Dun-
ning argued in support of the return, and Mr. Serjeant Davy was heard in
reply to them. The determination of the Court was suspended till the
following Trinity term; and then the Court was unanimously of opinion
against the return, and ordered that Sommersett should be discharged."
[Lofft 18] "Trinity Term, June 22, 1772. Lord Mansfield-On the
part of Somerset, the court now proceeds to give its opinion. I shall
recite the return to the writ of habeas corpus, as the ground of our deter-
mination; omitting only words of form. The captain of the ship on board
of which the negro was taken, makes his return to the writ in terms signi-
fying that there have been, and still are, slaves to a great number in Africa;
and that the trade in them is authorized by the laws and opinions of
Virginia and Jamaica; that they are goods and chattels; and, as such,
saleable and sold. That James Somerset, is a negro of Africa, and long
before the return of the king's writ was brought to be sold, and was sold
to Charles Stewart, Esq. then in Jamaica, and has not been manumitted
since; that Mr. Stewart, having occasion to transact business, came over








English Cases


hither [in 1769], with an intention to return; and brought Somerset, to
attend and abide with him, and to carry him back as soon as the business
should be transacted. That such intention has been, and still continues;
and that the negro did remain till the time of his [Somerset's] departure
[October I, 1771], in the service of his master Mr. Stewart, and quitted
it without his consent; and thereupon [November 26, 1771], before the
return of the king's writ, the said Charles Stewart did commit the slave
on board the Ann and Mary, to save [safe] custody, to be kept till he
[Knowles] should set sail, and then to be taken with him to Jamaica, and
there sold as a slave. And this is the cause why he, Captain Knowles, who
was then and now is, commander of the above vessel, then and now lying in
the river of [19] Thames, did the said negro, committed to his custody,
detain; and on which he now renders him to the orders of the court. We
pay all due attention to the opinion of Sir Philip Yorke,' and Lord Chief
Justice Talbot, whereby they pledged themselves to the British planters,
for all the legal consequences of slaves coming over to this kingdom or
being baptized, recognized by Lord Hardwicke,2 sitting as Chancellor on
the 19th of October 1749, that trover would lie: That a notion had pre-
vailed, if a negro came over, or became a christian, he was emancipated,
but no ground in law; that he and Lord Talbot, when Attorney and
Solicitor-General, were of opinion, that no such claim for freedom was
valid; that tho' the Statute of Tenures had abolished villains regardant to
a manor, yet he did not conceive but that a man might still become .a
villain in gross, by confessing himself such in open court. We are so well
agreed, that we think there is no occasion of having it argued (as I
intimated an intention at first), before all the judges, as is usual, for
obvious reasons, on a return to a habeas corpus; the only question before
us is, whether the cause on the return is sufficient? If it is, the negro
must be remanded; if it is not, he must be discharged. Accordingly, the
return states, that the slave departed and refused to serve; whereupon he
was kept, to be sold abroad. So high an act of dominion must be recog-
nized by the law of the country where it is used. The power of a master
over his slave has been extremely different, in different countries. The
state of slavery is of such a nature, that it is incapable of being introduced
on any reasons, moral or political; but only [by] positive law, which pre-
serves its force long after the reasons, occasion, and time itself from whence
it was created, is erased from memory: It's so odious, that nothing can
be suffered to support it, but positive law. Whatever inconveniences,
therefore, may follow from a decision, I cannot say this case is allowed
or approved by the law of England; and therefore the black must be dis-
charged." 3
Extracts from the arguments:
[20 How. St. Tr. i] Hargrave, for the negro: [48] The law of En-
gland only knows slavery by birth; it requires prescription in making

1 See supra, Opinion of Sir Philip Yorke, p. 12.
2 See Pearne v. Lisle, p. 12, supra.
3 See comments by Lord Stowell in the case of the Slave Grace, pp. 36-37, infra.








Judicial Cases concerning Slavery


title to a slave. Therefore the law of England is not applicable to the
slavery of our American colonies, or of other countries.-If the law of
England would permit the introduction of a slavery commencing out of
England, the rules it prescribes for trying the title to a slave would be
applicable to such a slavery; but they are not so; and from thence it is
evident that the introduction of such a slavery is not permitted by the law
of England.-The law of England then excludes every slavery not com-
mencing in England, every slavery though commencing there not being
antient and immemorial. Villenage is the only slavery which can possibly
answer to such a description, and that has long expired by the deaths
and emancipations of all those who were once the objects of it. .. [51]
The first case on the subject is one mentioned in Mr. Rushworth's His-
torical Collections; [see p. 9, supra] In order to judge what degree
of credit is due to the representation of this case, it will be proper to
state from whom Mr. Rushworth reports it. In 1637, there was a
proceeding by information in the Star-Chamber against the famous John
Lilburne, for printing and publishing a libel; and for his contempt in
refusing to answer interrogations, he was by order of the Court im-
prisoned till he should answer, and also whipped, pilloried, and fined.
His imprisonment continued till 1640, when the Long Parliament began.
He was then released, and the House of Commons impeached the judges
of the Star-Chamber for their proceedings against Lilburne. In speaking
to this impeachment, the managers of the Commons cited the case of the
Russian slave. Therefore the truth of the case rests upon the credit
due to the managers of the Commons. When this is considered, and
that the year of the reign in which the case happened is mentioned, with
the name of the person who brought the slave into England; that not
above 72 or 73 years had intervened between the fact and the relation of it;
. I see no great objection to a belief of the case. If the account of it is
true, the plain inference from it is, that the slave was become free by his
arrival in England."
[Lofft 8] Mr. Wallace, in support of the return: As to England, not
permitting slavery, there is no law against it; Villenage itself has
all but the name. Though the dissolution of monasteries, amongst other
material alterations, did occasion the decay of that tenure, slaves could
breathe in England: For villains were in this country, and were mere
slaves, in Elizabeth. Sheppard's Abridgment, afterwards, says they were
worn out in his time. [Lord Mansfield mentions an assertion, but does
not recollect the author, that two only were in England in the time of
Charles II. at the time of the abolition of tenures.] 'Tis necessary-
the masters should bring them over; for they cannot trust the whites,
either with the stores or the navigating the vessel. The court must
consider the great detriment to proprietors, there being so great a number
in the ports of this kingdom, that many thousands of pounds would be
lost to the owners, by setting them free. (A gentleman observed, no
great danger; for in a whole fleet, usually, there would not be six slaves.)"
[9] Mr. Dunning, in support of the return: 'Tis my misfortune to
address an audience, the greater part of which, I fear, are prejudiced the








English Cases


other way. Many alarming apprehensions have been entertained of
the consequence of the decision, either way. About 14,000 slaves, from
the most exact intelligence I am able to procure, are at present here; and
some little time past, 166,914 in Jamaica: there are a number of wild
negroes in the woods. The computed value of a negro in those parts 50 1.
a head. In the other islands I cannot state with the same accuracy, but
on the whole they are about as many. The means of conveyance, I am
told, are manifold; every family almost brings over a great number; and
will, be the decision on which side it may. Most negroes who have money
. make interest with the common sailors to be carried hitherto."
Observations of Lord Mansfield in the course of the arguments: [8]
"The case alluded to 1 was upon.a petition in Lincoln's Inn Hall, after
dinner; probably, therefore, might not, as he believes the contrary is not
[un]usual2 at that hour, be taken with rhuch accuracy. The principal
matter was then, on the earnest solicitation of many merchants, to know,
whether a slave was freed by being made a Christian ? And it was resolved,
not. 'Tis remarkable, tho' the English took infinite pains before to pre-
vent their slaves being made Christians, that they might not be freed, the
French suggested they must bring their's into France, (when the edict
of 1706 was petitioned for,) to make them Christians. He said, the dis-
tinction was difficult as to slavery, which could not be resumed after
emancipation, and yet the condition of slavery, in its full extent, could
not be tolerated here. Much consideration was necessary, to define how
far the point should be carried."
[16] the last confession of villenage extant, is in the 19th of Henry
the 6th."
[17] The question is, if the owner had a right to detain the slave, for
the sending of him over to be sold in Jamaica. In five or six cases of this
nature, I have known it to be accommodated by agreement between the
parties: On its first coming before me, I strongly recommended it here.
But if the parties will have it decided, we must give our opinion. Con-
tract for sale of a slave is good here; the sale is a matter to which the
law properly and readily attaches, and will maintain the price according
to the agreement. But here the person of the slave himself is immediately
the object of enquiry; which makes a very material difference. The now
question is, whether any dominion, authority or coercion can be exercised
in this country, on a slave according to the American laws ? The difficulty
of adopting the relation, without adopting it in all its consequences, is
indeed extreme; and yet, many of those consequences are absolutely con-
trary to the municipal law of England. We have no authority to regulate
the conditions in which law shall operate. On the other hand should we
think the coercive power cannot be exercised: 'Tis now about fifty years
since the opinion given by two of the greatest men of their own or any
times,3 (since which no contract has been brought to trial, between the
masters and slaves;) the service performed by the slaves without wages,
1"Lord Hardwicke, and the afterwards Lord Chief Justice Talbot, then Attorney and
Solicitor-General, pronounced a slave not free by coming into England." [Wallace's
argument.] See supra, Opinion of Sir Philip Yorke, p. I2.
2 20 How. St. Tr. I (70).
3 See Opinion of Sir Philip Yorke and Mr. Talbot, p. 12, supra.








Judicial Cases concerning Slavery


is a clear indication they did not think themselves free by coming hither.
The setting 14,000 or 15,000 men at once free loose by a solemn opinion,
is much disagreeable in the effects it threatens. Mr. Stewart advances
no claim on contract; he rests his whole demand on a right to the negro
as a slave, and mentions the purpose of detainure to be the sending of him
over to be sold in Jamaica. If the parties will have judgment, fiat
justitia, ruat coelum, let justice be done whatever be the consequence. 501.
a head may not be a high price; then a loss follows to the proprietors of
above 700,000 1. sterling. [18] Mr. Stewart may end the question, by
discharging or giving freedom to the negro. If the parties chuse to
refer it to the Common Pleas, they can give them that satisfaction when-
ever they think fit. An application to parliament, if the merchants think
the question of great commercial concern, is the best, and perhaps the only
method of settling the point for the future. I think it right the matter
should stand over; and if we are called on for a decision, proper notice
shall be given."
Joseph Knight (a negro) v. Wedderburn, 33 Dict. of Dec. 14545
(Scottish case), January 1778. "The commander of a vessel, in the
African trade, having imported a cargo of Negroes into Jamaica, sold
Joseph Knight, one of them, as a slave, to Mr. Wedderburn. Knight was
then a boy, seemingly about twelve or thirteen years of age. Some time
after, Mr. Wedderburn came over to Scotland, and brought this Negro
along with him, as a personal servant. The Negro continued to serve him
for several years, without murmuring, and married in the country. But,
afterwards, prompted to assert his freedom, he took the resolution of
leaving Mr. Wedderburn's Service, who, being informed of it, got him
apprehended, on a warrant of the justices of peace. Knight, on his ex-
amination, acknowledged his purpose. The justices found The petitioner
entitled to Knight's services, and that he must continue as before.' Knight
then applied to the sheriff of the county, (Perthshire), by petition, setting
forth, 'That Mr. Wedderburn insisted on his continuing a personal
servant with him,' and prayed the Sheriff to find, 'That he cannot be
continued in a state of slavery, or compelled to perpetual service; and to
discharge Mr. Wedderburn from sending the petitioner abroad.' After
some procedure in this process, the sheriff found, That the state of slavery
is not recognized by the laws of this kingdom, and is inconsistent with the
principles thereof; that the regulations in Jamaica, concerning slaves, do
not extend to this kingdom; and repelled the defender's claim to a per-
petual service.' Mr. Wedderburn having reclaimed, the sheriff found,
'That perpetual service, without wages, is slavery; and therefore adhered.'
The defender removed the cause into the Court by advocation. The Lord
Ordinary took it to report, upon informations. Being a question of general
importance, the Court ordered a hearing in presence, [14549] The
Court were of opinion, that the dominion assumed over this Negro, under
the law of Jamaica, being unjust, could not be supported in this country
to any extent: That, therefore, the defender had no right to the Negro's
service for any space of time, nor to send him out of the country against
his consent: That the Negro was likewise protected under the act 1701,








English Cases


C. 6, from being sent out of the country against his consent.-The judg-
ments of the Sheriff were approved of, and the Court 'remitted the cause
simpliciter.'"
Also in 20 How. St. Tr. I (2 n.).
Jones v. Schmoll, I Term R. 130 n., 1785. an action on a policy of
assurance,' At and from Bristol to the coast of Africa, during her stay and
trade there, and from thence to her port or ports of discharge in the West
Indies.' There was a memorandum on the policy, that, 'The assurers are
not to pay any loss that may happen in boats during the voyage (mortality
of negroes by natural death excepted); and not to pay for mortality by
mutiny, unless the same amount to 10 1. per cent. to be computed upon the
first cost of the ship, outfit, and cargo, valuing negroes so lost as 35 1. per
head.' The demand upon the policy was the loss of a great many slaves
by mutiny. The evidence of the captain was, that he had shipped 225
prime slaves on board: That on the 3d of May, before he sailed from the
coast of Africa, an insurrection was attempted. That the women seized
him on the quarter deck, and attempted to throw him overboard. That
he was rescued by the crew. That the women and some men threw them-
selves down the hatchway, and were much bruised. That he sent the ring-
leader on shore. That twelve men and a woman afterwards died of those
bruises, and from abstinence. That on the 22d of May, there was a general
insurrection, the crew were forced to fire upon the slaves and attack them
with weapons. It was a case of imminent necessity. Several slaves took to
the ship's sides, and hung down in the water by the chains and ropes, some
for about a quarter of an hour: three were killed by firing, and three were
drowned; the rest were taken in, but they were too far gone to be re-
covered; many of them were desperately bruised; many died in conse-
quence of the wounds they had received from the firing during the mutiny;
some from swallowing salt water; some from chagrin at their disappoint-
ment, and from abstinence; several of fluxes and fevers; in all to the
amount of 55, who died during the course of the voyage. The under-
writers had paid at the rate of 15 per cent. for 19, who were either killed
during the mutiny, or had afterwards died of their wounds. Bearcroft, for
the plaintiff, contended, that though the rest did not actually die in the
mutiny, or from any wounds received at that time, yet they had all died
in consequence of the mutiny; for if there had been no mutiny, nothing of
the kind would have happened, and that on this ground the underwriter
ought to be liable. He stated another consequential loss, which was, that
the very circumstance of there having been a mutiny amongst the remain-
ing slaves had so far lessened their value in the estimation of the planters,
that they were sold at 17 1. a-head less than they would otherwise have
done; that on this circumstance also he had no doubt but the plaintiff was
entitled, in point of law, to recover against the underwriter. Lord Mans-
field, Ch. J. I think not that is a remote consequence, and not within
any peril insured against by the policy [131] Another class is, I think,
as clearly not within the policy; Such as, being baffled in their attempts, in
despair chose a mode of death, by fasting, or died through despondency.
That is not a mortality by mutiny, but the reverse; for it is by failure of
mutiny. The great class are such as received some hurt by the mutiny,








Judicial Cases concerning Slavery


but not mortal, and died afterwards of other causes, as those who swal-
lowed water, jumped overboard, etc. etc. This is the great point. Verdict.
That all the slaves who were killed in the mutiny, or died of their wounds,
were to be paid for. That all those who died of their bruises, which they
received in the mutiny, though accompanied with other causes, were to
be paid for. That all who had swallowed salt water, or leaped into the
sea, and hung upon the sides of the ship without being otherwise bruised,
or died of chagrin, were not to be paid for."
King v. Inhabitants of Thames Ditton, 4 Douglas 300, April 1785.
"Charlotte Howe was removed under an order of two justices, from the
parish of Thames Ditton, in Surry, to the parish of St. Luke's, Chelsea, in
Middlesex. Upon an appeal to the Court of Quarter Sessions for Surry,
the order was quashed, and the following facts stated: The pauper was
bought in America by Captain Howe as a negro slave, and by him brought
to England in 1781. In November 1781, Captain Howe went to live in
the parish of Thames Ditton, and took the pauper with him, and she con-
tinued with him there in his service, till the 7th of June, 1783, when he
died, soon after which the pauper was baptized at Thames Ditton, and she
continued to live with his widow and executrix, who soon afterwards
removed to the parish of St. Luke's, Chelsea. There the pauper continued
to live with her as before for five or six months, when she left her." [2
Bott P. L. Const 186] during the whole of this time she was childless and
unmarried." [4 Doug. 300] The ground of the order of removal was
that the pauper had served the last forty days at the parish of St. Luke's,
Chelsea." Counsel, contra: [301] "The court has never decided that a
negro brought to England is there under an obligation to serve. [Lord
Mansfield.-The determinations go no further than that the master cannot
by force compel him to go out of the kingdom.] This kind of service
imports a particular hiring much more strongly than a bare service for a
year. [Lord Mansfield.-The case of Somerset is the only one on this
subject. Where slaves have been brought here, and have commenced
actions for their wages, I have always nonsuited the plaintiff.]" [2 Bott
P. L. Const 187] "Lord Mansfield: The case of Somerset, the negro
slave, goes no farther than to determine that the master of such a servant
shall not have it in his power to take him out of the kingdom against his
will; To give this pauper a settlement, she must come within the
description of a positive law. Her being black or a slave is no objection,
but the statute requires a hiring: there is none here, and therefore the
case is not within the statute."
Robertson v. Ewer, I Term R. 127, February 1786. [128] That the
ship sailed [from London] to the coast of Africa, at which place she
took in a cargo of slaves, and proceeded from thence to the island of
Barbadoes, where she arrived December, 1781. That on the 22d
[of January 1782] .. the small-pox broke out amongst the slaves, who
were all obliged to be put on shore. In consequence of which, and for want
of mariners she was detained above two months after the embargo
was taken off [i. e., after January 7, 1782]. then sailed to Jamaica,
which was her last port of discharge."








English Cases


Keane v. Boycott, 2 H. BI. 511, May 1795. This was an action on the
case, for enticing the Plaintiff's servant to leave his service. The facts
were, that a negro boy called Toney a slave in the island of St. Vincent
about 16 or 17 years old, there executed an indenture [on the 2Ist of
April, 1794], by which he bound himself to serve the Plaintiff, who was
coming to Europe, as a servant for five years, and the Plaintiff covenanted
to find him food, lodging and clothing, and medical assistance in case of
sickness. The plaintiff soon after arrived in this country with the boy as his
servant, and went to Cheltenham, where the Defendant, who was a
captain in the army on a.recruiting party, meeting the boy in the street
with his livery on, asked him if he would enlist, to which he assented; the
Defendant then asked him whether he was an indented servant, to which
he answered that he was bound to the Plaintiff for five years. After this
the boy went to the Defendant's lodgings, where the Defendant gave him
two shillings, and told him to go to Gloucester to the regiment; to which
place he accordingly went. Upon this, the Plaintiff procured a warrant
from a magistrate, under which the boy was taken and brought back
to his service; after which, the Defendant sent two serjeants to take the
boy again, and bring him back to the regiment, which they did; but it did
not appear that the boy went with them unwillingly or by compulsion. On
this evidence, the jury found a general verdict for the Plaintiff."
Heath, J., suggested [512] "that as slavery was differently modified
in different parts of the West Indies, perhaps the effect of the master
entering into a contract with his slave might be to enfranchise him, by
analogy to the old law respecting villeins in England, to whom, if the lord
entered into an obligation, it operated as a manumission; and if the
effect were an emancipation from slavery, it was evidently a contract for
the benefit of the infant, and if not binding on him, at least only voidable
by him, ." Lord Chief Justice Eyre: [515] "The Defendant in this
case had no concern in the relation between the Plaintiff and his servant;
he dissolved it officiously, and to speak of his conduct in the mildest terms,
he was carried too far by his zeal for the recruiting service. If he had
given himself time to reflect upon what his own feelings would have been,
if he had been in the situation of the master, I am persuaded that he not
only would not have solicited this negro boy to leave his master, but would
not have accepted him if he had voluntarily offered to enlist at the drum
head. Upon the whole, therefore, we are of opinion that the verdict is
right, and that there ought not to be a new trial."
1" With the greatest deference to the high authority which started, as well as to that
[Lord Chief Justice Eyre] which pursued this ingenious conjecture; it is to be observed
that it is inconsistent both with the general policy, and local institutions of the British
islands in the West Indies, to suppose that a slave can be manumitted by implication.
The histories of those islands and their statute books shew that manumission can only
be effected by some act of the master, done expressly for that purpose, and accompanied
with the settlement of an annual provision on the slave so manumitted. On this subject
the law of the island of St. Vincent is particularly strict. This being so, the founda-
tion of the argument, namely that the effect of the master entering into a contract with
the slave might be to enfranchise him in the island of St. Vincent where it was made,
evidently fails. The question, whether such would be the effect of the contract in this
country, could not arise, because as soon as a slave arrives here, the yoke of slavery is
dissolved by operation of law, whether he has previously entered into any contract or not,
and whatever may be his situation with respect to the service of his master." (Note of
the reporter, Henry Blackstone.)








Judicial Cases concerning Slavery


Webster v. De Tastet, 7 Term R. 157, February 1797. The plaintiff,
having been hired to go as a mate in a ship from the coast of Africa to
the Havannah, for which he was to receive wages at the rate of 5 1. per
month, and three privilege slaves free of expense on the ship's arriving at
the port of sale, directed the defendant, who was his agent at Liverpool,
to get an insurance of his privilege; and for the defendant's neglect the
plaintiff brought this action on the case against him. It appeared at the
trial that the ship was lost on her voyage, and that the plaintiff thereby
sustained a loss of 150 1. reckoning 39 1. 5 s. for his chest and clothes, and
the rest for the value of the slaves. It was objected that the plaintiff
could not recover the value of the slaves, because they were not the legal
subject of insurance, they being in the nature of seamen's wages. The
Court were clearly of opinion that the slaves were not the subject of
insurance,"
Farmer v. Legg, 7 Term. R. 186, May 1797. an action on a policy of
insurance on the Cadiz Dispatch,' an African ship engaged in the slave
trade,' at and from London to the coast of Africa, during her stay there,
and from thence to her port of discharge in the West Indies.' The loss
happened in consequence of an insurrection of the slaves. The principal
question was whether the ship had been navigated in the manner prescribed
by the 31 Geo. 3. c. 54.1 [187] the captain had made oath that he had
been two voyages as chief mate in the ship Sally engaged in the slave trade,
and the present plaintiff (the owner in the voyage insured) had certified
that that was true to the best of his knowledge and belief," Nonsuit:
[191] "It was undoubtedly the intention of the Legislature to put a
check to the mischievous and improvident manner of carrying the slaves to
the West Indies: it was intended that the slaves should have as much
indulgence as their situation would permit, and [192] it was .
enacted that the captain of every slave ship should have a certain qualifi-
cation gained by his experience in the trade, of which the captain is to
make oath, to be corroborated by the certificate of the owners. It
is a more rational construction of this act of parliament that the
owners of the respective ships in which the captain has gained this qualifi-
cation, should certify than that the owners of the ship in which he
is about to be engaged should certify a fact, the truth of which they
cannot know." [Ashhurst, J.]
The Thomas, I Chr. Rob. 322, April 1799. This was a British slave
ship seized by the slaves on board, and afterwards retaken by an English
frigate, She was carried to St. Domingo,"
Alfred v. Marquis of Fitzjames, 3 Espinasse 3, May 1799. Assumpsit
for servants wages. The Plaintiff relied on a quantum meruit for
the time he had served. It appeared in evidence, that the Plaintiff
came over from Martinique with the Duchess of Fitzjames, then Made-
moiselle Le Brun. His father and mother had been slaves on an estate
belonging to her in that island. He had entered into her service in Marti-
nique, and continued to serve her after marriage; and the Duke found him
1 Ibid., n.: "This was one of the statutes passed on this subject; but the act cited
in Court was the 32 Geo. 3. c. 52."







English Cases


with necessaries of every description. There was no contract for any
hiring for wages; but a witness said, that the Marquis had been heard to
promise to pay him wages. Lord Kenyon said, he was prepared to
give a decided opinion: That up to the time of the promise to pay wages,
which the witness had said the Defendant had made, the Plaintiff had no
title to.recover, as there was no original contract of service for wages."
The Isabella, 2 Chr. Rob. 241, November 1799. Petition to recover a
sum of money due [the chief mate] for wages, on a voyage from the
port of London to the coast ofAfrica, and from thence to the West
Indies. The demand was for 26 1., at the rate of 4 1. per month under
agreement; and beyond that, for 70 1., as the value of a privilege of one
slave,1 due under the ordinary practice of that trade, according to
average price at the port of delivery."
The Phoenix, 3 Chr. Rob. 186, October 18oo. Susini bought the vessel
at St. Thomas, [189.] went to Cuba, sold his cargo, and bought another,
with which he went .to Baltimore, from thence to Angola, in Africa,
where he took a cargo of slaves, and sold them at St. Thomas; "
Williams v. Brown, 3 Bos. and Pul. 69, February 1802. The Plaintiff,
who was a negro, in November 1797, entered at London on board the
Holderness [of which the defendant was master], bound for Grenada, as
an ordinary seaman out and home: on the arrival of the Holderness at
Grenada the Plaintiff was claimed as a runaway slave by Mr. Hardman
his former master, and delivered to him; and thereupon the Plaintiff, the
Defendant, and Mr. Hardman, met and agreed, that on payment of 30
joes by the Defendant to Mr. Hardman, the latter should manumit the
Plaintiff, which was accordingly done by a regular instrument of manu-
mission; and the Plaintiff on the same day entered into an indenture, in
which, describing himself as a free black man of the island of Grenada,'
he covenanted with the Defendant, to go on board and during
the term of three years faithfully serve in the capacity of a sailor [70]
[receiving] for the first year 15 1., for the second 20 1., and for the third
25 1., by quarterly payments." The negro "served as a sailor on the
voyage home, and for his wages in that voyage the present action was
commenced [upon a quantum meruit], the wages for the outward bound
voyage having been paid, as well as the money stipulated for by the
indenture."
Held: he is stopped by his covenant from claiming more than the
sum stipulated. [70] "the contract could not be considered as valid in
England if the stipulation had been that the Plaintiff should serve the
Defendant for life. The Plaintiff in [71] the present case being as free
as any one of us while in England When the Plaintiff was claimed in
Grenada as a runaway slave, he was not only liable to be remanded to
slavery, but by the laws of the island he was amesnable to severe punish-
ment for his desertion." [Lord Alvanley, C. J.] "When this Plaintiff
was [72] claimed in Grenada he was "liable to severe punishment for
having run away from his master: and he was a slave for life. I
1 Ibid., n.: "with the benefit of a slave, when the cargo was taken completely on board,
in Africa,"








Judicial Cases concerning Slavery


consider the whole as one transaction. The Defendant [the master of the
ship] was to advance the money for the Plaintiff's freedom, in con-
sideration of which the master [of the slave] was to manumit the Plaintiff,
and the Plaintiff thus manumitted was to enter into a new contract to
serve the Defendant for three years, This was an agreement for the
advantage of the Plaintiff: he was to be relieved from punishment; he
was to become a free man; In all countries where slavery is tolerated,
agreements between the master and the slave respecting the manumission
of the latter are enforced by the law. He is competent to enter into
a contract for the purpose of his manumission, and therefore such contract
may be put in force against him. considering the contract as having
been beneficial to the Plaintiff, I think that he ought to be bound by his
own agreement." [Heath, J.]
"though he 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. The consequence was, that on his arrival at Grenada" he
was taken as a runaway [73] 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.' I cannot but think the contract
entered into in Grenada advantageous to the Plaintiff. If indeed the man
had been free he might perhaps have made a more advantageous bargain
for himself. But being a slave he could not enter into any contract without
the leave of his master; and so being a slave, and liable to the terrible
consequences of desertion, it is agreed that he shall be set free, he receives
his wages for the outward bound voyage, and on the other hand he engages
to serve the Defendant for three years at certain wages on board such ship,
and at such places as the Defendant shall have occasion for his services."
[Rooke, J.]
"Here indeed at the time of entering into the contract he was in the
situation of a slave. But I do not know that a slave is precluded from
entering into a contract. He may do so provided his contract does not
affect the rights of his master. Though he cannot deprive his master of
his services, yet with the consent of his master he may engage to do service
for another. .. [74] It is supposed that he has been driven to an unrea-
sonable and unconscientious bargain: but I cannot say that it so appears
to me. What was his condition at Grenada? Being claimed as a runaway
slave he was considered as a criminal, he was liable to very severe punish-
ment, he was incapable of recovering for his own benefit the money which
he had earned upon the outward bound voyage, and he was unable to fulfil
his contract with the Defendant. It is true that by the articles he had
contracted with the Defendant for a greater rate of wages; but from that
contract he could derive no benefit, for his master was entitled to all the
wages he might earn. By rescinding such a contract as this I think
we should be guilty of great inhumanity; for unless such a contract can
be enforced, no master of a slave would agree to his manumission, nor any
person be willing to pay the price of his freedom; the consequence of which
1 Was not the slave on English soil till he stepped off the ship at Grenada? If so, his
wages were earned while he was a free man. ED.







English Cases


would be that the present Plaintiff and all others in similar situations must
remain in perpetual slavery." [Chambre, J.]
This case is quoted at considerable length by Lord Stowell in his decision
as to the Slave Grace [2 Hagg. Adm. 94 (119-122),'1827], infra: [122]
" I do think it approaches so near as to possess the authority of a direct
decision upon the immediate subject," "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."
The Trelawney, 4 Chr. Rob. 223, March 1802. [225] The affidavit of
Mr. Kendal, the master of the Lord Nelson [slave-ship] states,-' That
he arrived at Cabenda, on the coast of Angola, in May 1799; that during
his stay there, the Trelawney arrived, and was employed in taking in her
complement of slaves, when, on the 2d of August, about six o'clock in the
morning, those already on board, in number about 85, rose upon the
captain and crew, seized the arms, wounded two of the crew, and got com-
plete possession of the ship in about five minutes; that the captain and all
the crew, except the two men who were wounded, got through the cabin
windows into two boats, belonging to the Trelawney, and rowed away to
the Lord Nelson.' Kendal conceiving that not a moment was to be lost,
commenced a heavy fire from his great guns and small arms, into the
Trelawney, which was lying about half a cable's length from the Lord
Nelson. That the captain and surgeon of the Trelawney, and a boy, got
on board his ship, but he prevented the rest of the crew from quitting their
boats. That about this time, thirty of this appeared's men, whom he had
previously dispatched in two of his boats for that purpose, had boarded
the Trelawney, and were engaged with the negroes about an hour and a
half, and after a severe conflict, in which two of his crew were severely
[226] wounded, succeeded in quelling the insurrection. That about a
quarter of an hour before the slaves were completely subdued, this appeared
went on board the Trelawney with the boat's crew, whom he compelled to
return, by threatening to fire into their boat; that he remained on board the
Trelawney till between nine and ten o'clock, when perfect order was re-
stored, and this appeared returned to his ship, leaving his surgeon and
surgeon's mate to take care of the ship, and give the necessary relief to
the wounded." The ultimate value of the slaves [223] "in the West
Indies, after the contingencies of a long voyage" was "stated to be
about I0,000 1."
The Anne, 5 Chr. Rob. Ioo, February 1804. This was a case of sal-
vage, brought by the owners and master of the Elizabeth, a slave ship,
for salvage services on the coast of Africa. the Anne had been in
considerable distress from an insurrection of her slaves, but that this
insurrection had, in fact, been quelled by her own crew, [IoI] A
second insurrection is also alleged of the Butlers and Linguisters, who
are officers of the nations of the coast, with whom they were carrying
on their traffic; but this is not i .y marer, proved."
..:.'. ": :* .*
... .. .. .. .. .... ..
.'. ." "..
'""0 ":"
..'... .. .." ". "..--:
Zt** **. **.
a. 7








Judicial Cases concerning Slavery


The Abby, 5 Chr. Rob. 251, July 1804. Mr. Dawson, a British sub-
ject," [252] "fitted out this vessel for a voyage to Africa, there to barter
her cargo for slaves, and then to carry them to the island [sic] of
Demarara, at that time a Dutch colony. The vessel sailed [from Liverpool]
on the IIth of September 1795. [253] The vessel sailed from the
coast of Africa, in May 1796, and was taken off the island of Demarara,
after the surrender of that island to the British forces, and carried to
Martinique." See 255 n. for acts regulating the slave trade.
The Richmond, 5 Chr. Rob. 325, December 1804. The Richmond, an
American vessel, sailed on a destination to St. Helena, from thence to
Mozambique, on the coast of Africa, with a design of proceeding after-
wards with a cargo of slaves to the Havannah,"
The Vanguard, 6 Chr. Rob. 207, November 1805. This was a case on
petition for the recovery of wages and the privilege of three slaves, alleged
to be due to W. Taylor, for his services in the capacity of mate during
a voyage from Liverpool to the West Indies, and back to Liverpool, under
contract of the 2d September, 1802." Taylor agreed to act as ostensible
master until the ship sailed, as the character of the real master [210] for
cruelty was so well known that he would not have been able to have pro-
cured men." Violation of the act of 30 Geo. III. c. 33, regulating the slave
trade.
L'Eole, 6 Chr. Rob. 220, December 1805. This was a French vessel,
which had been captured by three privateers on the coast of Africa, with
a cargo of European goods and a few [fourteen] slaves on board." [223]
These were taken out, and put on board another vessel; that the re-
mainder of the cargo was bartered away on the coast [for 200 slaves] .
who were shipped on board this vessel, and sent to Barbadoes to be con-
demned as prize." Held: this was an importation in total violation of
the regulations which the legislature has imposed." [" Acts, 12th Ch. 2d,
7th and 8th W. 3d, and the 26th and 39th of his present Majesty."]
La Dame Cicile, 6 Chr. Rob. 257, February 1806. The garrison of
Goree seized the ship and cargo of slaves [260], the property of Sundry
persons of Hamburgh," [257] took the usual examinations, and for-
warded them, with the ship papers, to the High Court of Admiralty .
where the ship and cargo were condemned. They were in the mean time
sold to a British merchant, who sent them to the island of Barbadoes for
sale. On their arrival a seizure was made as imported in
violation of the 26th [c. 60] and 29th [c. 80] Geo. 3. and a sentence
pronounced against them." Property restored to the claimants. [260 n.]
" The ship and cargo of 33 slaves was claimed for Mr. Powel, of Liverpool,
and six slaves for an officer of the garrison at Goree."
The Horatio, 6 Chr. Rob. 320, December 1806. re-capture of a British
slave ship, that had been taken on the coast of Africa, by three French
privateers,"
Edmiston v. Wright, I Campbell 88, Mich. 1807. The defendant had
a gang of negroes let out in Jamaica. In 1803 the defendant wished
"...... '.. -. .



..... *:.** 4.*
".. ... ... ..4.. **
*. . ..**: .








English Cases


to transfer them to his estates in Georgia, and for that purpose his agent
at the latter place dispatched the ship Mary, captain Beck, to Jamaica. The
negroes were put on board by the plaintiff at Port Maria, and carried to
Port Antonio; but as the captain had not got a permit to receiving them,
they were there seized as forfeited, together with the ship and the rest of
her cargo. To release them, the plaintiff paid as a composition 1200 1."
Fisher v. Ogle, i Campbell 418, Trinity 1808. it resulted evidently
from the papers on board, that the expedition of the said ship Juno, her
cargo, and the operations of her captain on the coast of Africa,1 were for
account of the Brothers Geddes, merchants of London, who had, to masque
the English property of this outfit, borrowed the American flag and pass-
port of the said ship Juno, and taken for their agent and partner in this
expedition, Captain Fisher, furnished with a certificate of citizen of the
United States." The Juno was captured by a French privateer, carried
into Martinique, and there condemned in the vice-admiralty court."
Held: there is no proof that the property is not American,"
The Amedic, I Acton 240, March 18Io. "The Amedie and another
vessel, the Semiramis, belonging to the same owner (Mr. Groves of
Charlestown) sailed in company together in September 1807, for the
coast of Africa. The return cargo [from Bonny] consisted of og5
slaves, the former master had received from his owner instruc-
tions to make all possible expedition so as to reach Charlestown before the
Ist day of January 1808, as the American Government had prohibited the
African slave trade after the expiration of the year 1807; if he found it
impossible to return 'within the time limited by the laws of his country,'
he was directed 'to proceed by way of the old straits of Bahama to
Matanzaz, where he would find further instructions.' on the 22d, he
thinks, of December, [the present master] considering it impossible
from his bearing to make the voyage within the limited time,2 altered the
ship's course and bore away for Cuba. .. [243] this vessel [was] taken
the very day the master asserts he had altered his intention of going to
Charlestown in the intricate and difficult navigation of the West India
islands. This was not the natural and usual routine of such a voyage."
[249] Judgment.-Sir Wm. Grant.-In the case of the Amedie it must
be considered. that she was employed in carrying slaves from the coast
of Africa to a Spanish colony. [250] The slave trade has been
totally abolished in this country, and [251] we are now entitled .
to hold that prima facie the trade is altogether illegal, and thus to throw
on a claimant the whole burden of proof, in order to shew that by the
particular law of his own country he is entitled to carry on this traffic. .
In the present case the claimant does not bring himself within the pro-
tection of the law of his own country; he appears to have been acting in
direct violation of that law [act of 1794] which admits of no right of
property such as he claims:" Sentence of the court below affirmed,
1 and from thence to her port or ports of discharge in the West Indies,"
2 Before January I, 1808. But the act of Congress, 1794, prohibited a trade in slaves
by Americans to foreign settlements. The vessel "fell between two stools." ED.








Judicial Cases concerning Slavery


condemning the cargo of slaves to the sole use of his Majesty (which were
afterwards set at liberty) and the ship as lawful prize to the captor.
The Africa, 2 Acton I, November 181o. The Africa, an American
vessel, sailed from the coast of Africa December 16, 1807, with a large
cargo of slaves, and was captured January 30, 1808. The instructions in
the present case pointed out a direct return voyage to Charlestown, or if
unable, from contrary winds, to reach Charlestown prior to the Ist of
January 1808, [2] to make the first American port which the master could
fetch before that day, and report the ship at the nearest custom-house as
bound there, but put in by stress of weather, and by so doing the prohibi-
tory act would not attach to the Africa.' The instructions were punc-
tually observed; but from a great competition amongst the slave-ships on
the coast, and the negroes having been attacked by the small-pox, the
vessel was unable to make any American port in time, and therefore con-
tinued her course for Charlestown," The former master, "when over-
looking the ship's papers in [3] company with the lieutenant of the
capturing vessel, had said, 'This is the chart I have to carry me to New
Providence,' Ship and cargo condemned.
The Nancy, 2 Acton 4, November 181o. "the return voyage from
Senegal commenced the 30th September 1807, through the sickness of
her crew, and the apprehensions entertained from the tumultuous dis-
position of the slaves, who had thrice risen upon the crew, and had been
with difficulty subdued, the master was induced to alter his intended desti-
nation to Charlestown, and bear away for the nearest port in the West
Indies. On the 3oth October he discovered the high lands of Spanish
Town, and considering St. Thomas's most convenient, in the attempt to
make that island was captured." King's Advocate: [5] It was remarka-
ble that the master, in making for St. Thomas, must have crossed the
trade winds, and passed the latitude of St. Bartholomew and Barbadoes.
This was evidently a voyage undertaken to procure the best market he
could. In the preparatory examination the master fraudulently had stated
the whole cargo to belong to his American owners, but the day after,
apprehensive of detection, he corrected himself by admitting that ten
slaves had been shipped on freight by a Frenchman. Further proof could
not therefore be now admitted to distinguish these from the remainder,
but the whole property should be considered liable to confiscation." Ship
and cargo condemned.
The Anne, 2 Acton 6, November 181o. The Anne, an American ship,
sailed in 1806 with a cargo of slaves from the coast of Africa (where
she had touched at several settlements of different European nations, for
the purpose of obtaining slaves) to Monte Video in South America." She
was captured [7] in sight of port, on the 7th January 1807. By these
dates it will appear that she had returned nearly a year prior to the
operation of the general restrictive law of America, which did not take
place until 1808, and nearly three months before the British law (passed
25th March 1807, prohibiting the African slave trade from the Ist of
May 1807 [47 Geo. III., sess. I, c. 36]) for abolishing the slave trade.








English Cases


The question, therefore, for the decision of the Court will be, whether the
principle recognized by the judgment delivered in the case of the Amedie
(vol. I, p. 240) is to be construed as having a retrospective effect, or in
other words, will a British Court of Prize, acting upon this principle,
compel a neutral claimant, whose property has been captured previous to
the abolition of the slave trade by the British legislature, to shew that he
acted under the sanction or protection of the laws of his own country."
[Dallas for the claimant.] Ship and cargo condemned.1
The Fortuna, Dodson 81, March 1811. "This vessel [(88) with a
cargo well assorted for the African market] sailed from New York, under
American colours, in the month of July 181o, being then named the
William and Mary, and arrived at Madeira in September. The ostensible
owner was an American citizen Trenholm, who also acted as
master. he landed a part of his cargo; and about a week before his
departure he executed a bill of sale for the ship to a native of Madeira,"
a clerk of the consignees of the William and Mary. No consideration was
in fact given for the vessel, which was renamed the Fortuna, sailed under
Portuguese papers, and flew the Portuguese flag. A Portuguese was
appointed master, and Trenholm [82] was now converted into a super-
cargo; and the whole conduct and entire control of the ship and ad-
venture were committed to him," [90] "The construction and furni-
ture of the ship had all the accommodations necessary for the conduct of
[the slave] trade, and of that trade only. She had platforms ready con-
structed; she had timbers fit for the construction of more; she had iron
shackles and bolts, and running chains and collars-all adapted for the
purposes of conveying slaves-and the quantity and species of provision
and medicine which such purposes require," This vessel sailed, from
Madeira October 6, and was captured by an English ship seven or eight
miles distant from the harbour of Funchall," Vessel and cargo con-
demned: [87] "no doubt can be entertained that she is an Americain
vessel only colourably transferred to a Portuguese for purposes of
deception." The recent decision in the case of the Amedie is followed:
[85] "any trade contrary to the general law of nations, although not
tending to or accompanied with any infraction of the belligerent rights
of that country, whose tribunals are called upon to consider it, may subject
the vessel employed in that trade to confiscation. this country, since
its own abandonment of the slave trade, has deemed [it] repugnant
to the law of nations, to justice and humanity, though without presuming
so to consider and treat it, where it occurs in the practice of the subjects of
a state which continues to tolerate and protect it by its own municipal
regulations; but it puts upon the parties who are found in the occupations
1 Sir William Grant forgets that he said in the case of the Amedie [I Acton 240
(250) ]: "So far as respected the transportation of slaves to the colonies of foreign
nations, this trade had been prohibited by the laws of America [1794] only; our law
sanctioned the trade this Court could not take any cognizance [of the prohibitory
law of America], and of course could not be called upon to enforce [it] But by the
alteration which has since taken place in our law, the question stands now upon very
different grounds." ED.








Judicial Cases concerning Slavery


of that trade the burthen of shewing that it was so tolerated and protected;
and on failure of producing such proof, proceeds to condemnation," [Sir
William Scott, J.]
The Donna Marianna, I Dodson 91, June 1812. an appeal from the
Vice-Admiralty Court at Sierra Leone; in which court the ship had been
condemned, as being a British vessel engaged in the slave trade;"
[93] The ship [originally an American vessel] comes to England, and is
there purchased by Macdowall and Co. of Liverpool, from whence she is
[in 1809] dispatched on her outward voyage with fetters on board; which,
as it appears to me, were put on board at Liverpool; the double stanchions
were admitted to have been taken on board there; [94] the ship pro-
ceeded to Madeira; and it was not till her arrival at Pernambuco [where
she was said to have been sold to a Portuguese merchant] that the Portu-
guese flag was assumed: from Pernambuco she sailed to Bahia," [92]
"and having there taken on board a variety of goods assorted for the
slave trade, she proceeded to Cape Coast, where she was proceeding to
engage in the slave trade, and was seized at anchor." Sentence as to the
ship affirmed. [94] Judgment as to the cargo. I consider the whole
interest of the adventure to reside in the British merchants, Therefore
I see no reason why the cargo should not follow the fate of the ship, with
which it is involved in one common fraud." [Sir William Scott, J.]
The Diana, I Dodson 95, May 1813. This vessel, under Swedish
colours, took on board at Gustavia, in the island of St. Bartholomew's, a
cargo of rum, sugar, tobacco, iron, dry goods, and powder, which she
carried to Cape Mount, on the coast of Africa, where the same were
exchanged for 120 slaves; and the vessel having received a number of
these slaves on board at Cape Mount, was, on the i ith of September I8Io,
seized by His Majesty's ship Crocodile, and carried to Sierra Leone,"
where the ship and cargo of slaves were condemned as prize. Sentence
reversed: [96] nothing arises to warrant a suspicion that the ship was
going elsewhere than to the Swedish island of St. Bartholomew, and on
Swedish account. [IoI] The question then is, whether the slave trade
is permitted by the law of Sweden.' The endorsement upon the pass
signed by the Swedish Governor, that this vessel was 'bound to the Coast
of Guinea, for slaves,' raises a presumption of the legality of the trade,
and shifts the burthen of proof from the claimant to the captor. [Io2]
The only remaining point is, respecting these few Portuguese slaves, which
were found on board this ship. It appears, that they belong to the master
of a Portuguese schooner, which had been lying at Cape Mount, but was
driven to sea by stress of weather, whilst he was on shore, and that himself
and his slaves had been taken on board this ship out of charity. I shall
not presume that he had been acting in opposition to the laws of his own
country," [Sir W. Scott, J.]
Demarara, I Dodson 263, May 1813. Certain slaves "were taken at
Demarara, on the 2ist of September 1803, when that colony sur-
1 [98 n.] By a treaty "signed at Stockholm on the 3d of March 1813," which "has
been made public since the date of this judgement," the king of Sweden engages "not to
permit Swedish subjects to engage in the slave trade."








English Cases


rendered [264] The slaves are in number three hundred and ninety-
nine, of whom, two hundred are no longer the subject of contest, but are
now admitted to have belonged to the estate on which they were employed
as glebae ascriptitii: they were attached to the soil as part and parcel of
the realty, the one hundred and ninety-nine slaves, who were em-
ployed by the Dutch government upon the public works in the military
arsenals of the settlement," are good and lawful prize to the captors."
[Sir W. Scott, J.]
Le Louis, 2 Dodson 210, December 1817. This is the case of a French
vessel which sailed from Martinique on the 3oth of January 1816, destined
on a voyage to the coast of Africa and back, and [236] was taken off
Cape Mesurada, on the coast of Africa, on the IIth of March 1816, by
an English colonial armed vessel, after a severe engagement [in which
eight of the English crew were killed and twelve others wounded], which
followed an attempt to escape. .. [238] The number of iron manacles on
board, the construction of the platforms, the magnitude of the coppers, the
quantity and quality of the provisions in store [(213) consisting princi-
pally of beans], the negotiations with the natives at Mesurada [(210) the
vessel had bargained for twelve slaves at Mesurada, and was prevented by
the capture alone from taking them on board], the mysterious passages
which occur in the correspondence between the owners, all tend one way,
to shew a contingent, or rather a predominant intention of trading in
slaves. [211] "The ship was condemned to His Majesty in the Vice-
admiralty Court at Sierra Leone,"
Judgment reversed: [246] this vessel cannot be deemed a pirate..
She is the property not of sea rovers, but of French acknowledged domi-
ciled subjects." And there was no actual abolition of the slave trade by
the French law when this seizure took place.
The Dolores, 2 Dodson 413, December 1819. This ship, with a num-
ber of slaves on board, was captured on the 4th of April 1816, after a
short action, by his Majesty's sloop of war Ferret, and carried to
Sierra Leone; where the ship itself, and about 250 African slaves, men,
women, and children, were condemned as English and American prop-
erty, and as good and lawful forfeiture. The Ferret was one of the
squadron which conducted Bonaparte to St. Helena and was on her
way back to Spithead. The abolition act, instead of giving the slaves to
the seizors, gives them to the Crown; the Crown giving the captors a
certain stated value, commonly called a bounty."
Madrazo v. Willes, 3 B. and Ald. 353, January 1820. The plaintiff was
a Spanish merchant engaged in the slave trade between the coast of Africa
and Havana, Cuba. On January 16, 1818, the defendant, a captain in the
Royal Navy, seized theplaintiff's ship off Cape St. Paul's, on the coast
of Africa together with 300 slaves, The jury found a verdict
for the plaintiff, damages .for the supposed profit of the cargo of slaves
18,18o 1."
Held: ships, which belong to countries that have prohibited the slave-
trade, are liable to capture and condemnation, if found employed in such








Judicial Cases concerning Slavery


trade; but that the subjects of countries which permit the prosecution of
this trade, cannot be interrupted while carrying it on. the slave-trade
is not condemned by the general law of nations. The subjects of Spain
have only to look to the municipal laws of their own country, and cannot be
affected by any laws made by our Government." [Best, J.]
The Woodbridge, I Hagg. Adm. 63, July 1822. "The Woodbridge
arrived at the Mauritius in the month of January 1819; and was seized
by Captain Purvis, of H. M. S. Magicienne, upon information that eight
blacks, who had been taken into the employment of the ship at Madagascar,
were slaves." [65] "The men were taken on board from necessity; for
there had been so much sickness among the crew that the number was
reduced from 61 to 10 men," The captain [67] "thereupon consulted
the masters of two other merchantmen then lying at Tamatavie, who were
unable to afford him the assistance he required, but recommended him to
apply to the Sultan of Tamatavie; and the result of this application was
that eight men were sent on board the Woodbridge. How or in what
manner they were [68] procured does not appear; but there certainly was
no contract with them for wages, or otherwise, on the part of the captain.
[65] these extra hands were taken on board as sailors, with an obligation
upon the master to return them to their own port. These men were
woolly-headed blacks; and they were employed and used in the same
manner as Lascars." The Instance Court of Vice-Admiralty, at the Isle
of France, restored the ship, leaving each party to pay his own costs.
Forbes v. Cochrane, 2 B. and C. 448, January 1824. Forbes, a British
merchant, owned a cotton plantation on the St. John's River, in East
Florida, a Spanish province. On the night of the twenty-third of February,
1815, sixty-two of his negroes, out of about one hundred, [451] deserted
from the plaintiff's plantation, (together with four others belonging to
Lindsay Tod his manager,) of whom he had found thirty-four, namely,
eighteen men, eight women, and twelve young children of both sexes,
together with the aforesaid four negroes belonging to Mr. Tod on board
of His Majesty's Ship Terror, the said slaves refused to return to their
duty, under pretence that they were then free, in consequence of having
come to this island in possession of His Britannic Majesty." [Cumberland
Island, Georgia, was occupied and garrisoned by the British forces. [449]
" The Albion, Terror Bomb, and others formed a squadron under
Sir George Cockburn's immediate command off that island, where the
head quarters of the expedition were."] The plaintiff prayed that Cock-
burn would order the slaves to be delivered to him [452] together with
the boat which they had piratically stolen from his plantation. Sir G.
Cockburn told him he might see his slaves, and use any arguments and
persuasions he chose to induce them to return. but they refused to go."
On March 6 they were transferred to the Albion, and carried to Bermuda
by order of Vice-Admiral Cochrane, [453] to be forth coming, should it
be decided that they are to be returned to East Florida." [" such slaves as
belonged to American subjects, and were in the possession of the defen-
dants, were not taken away in consequence of the wording of the treaty of
peace."] On March 29 the slaves in question were transferred into His








English Cases


Majesty's ship the Ruby, at Bermuda, and after being on board that
ship about twelve months, were landed in that island, and many of them
employed in the King's dock-yard there. The slaves .belonging to the
plaintiff, were worth to him 3800 1."
[473] Judgment for the defendants: [464] the fugitives went
on board an English ship (which for this purpose may be considered a
floating island), and in that ship they became subject to the English laws
alone." [Holroyd, J.] [467] were these persons slaves at the time when
Sir G. Cockburn refused to do the act which he was desired to do? .
The moment they put their feet on board of a British man of war, not
lying within the waters of East Florida, those persons who before
had been slaves, were free. .[470] There is no statute recognizing
slavery which operates in the part of the British empire in which we are
now called upon to administer justice. It is a relation which has always
in British Courts been held inconsistent with the constitution of the
country. It is matter of pride to me to recollect that, whilst economists and
politicians were recommending to the Legislature the protection of this
traffic, and senators were framing statutes for its promotion, and declar-
ing it a benefit to the country, the Judges of the land, above the age in
which they lived, standing upon the high ground of natural right, and
disdaining to bend to the lower doctrine of expediency, declared that
slavery was inconsistent with the genius of the English constitution, and
that human beings could not be the subject matter of property.' As a law-
yer I speak of that early determination, when a different doctrine was pre-
vailing in the senate, with a considerable degree of professional pride."
[Best, J.]
San Juan Nepomuceno, I Hagg. Adm. 265, July 1824. The above-
named ship, having on board about 269 slaves [135 men, 53 women, and
81 children (p. 399)] and no other cargo, while sailing under the Spanish
flag, documented with Spanish papers, and the property of a Spanish sub-
ject, was, on her return (ostensibly) to the island of Porto Rico, from
the coast of Africa, seized, about thirty miles to the westward of Cape
Mesurada, on 7th December 1817, by Lieutenant Hagan of the colonial
vessel of war, Prince Regent, and detained; and on 12th February 1818,
was finally condemned at Sierra Leone," Restitution decreed.
The Aviso, 2 Hagg. Adm. 31, June 1826. This ship, under Brazilian
colours, and laden with four hundred slaves, was captured on the 26th
of September 1824, by H. M. S. Maidstone, Capt. Bullen, in company with
H. M. S. Bann, Capt. Courtenay, and was condemned at Sierra Leone "
[33] H. M. S. the Maidstone was sent, under orders from the
Admiralty, to cruise on the coast of Africa, for the express purpose of
capturing all vessels carrying on the slave trade, in breach of the treaties
subsisting between his Majesty and foreign powers, and thereby subjecting
themselves to British capture and confiscation. .. [34] Capt. Courtenay
had examined a Portuguese ship, which was suspected of carrying on that
trade, but which, at the time of the inquiry, had no slaves on board; he is
1 Referred to in Mr. Justice Holmes's edition of Kent's Commentaries, II. 248,
note b. ED.








Judicial Cases concerning Slavery


afterwards sent off on a slave-capturing expedition by Capt. Bullen to
examine the coast for that purpose, from Cape Coast Roads to the river
Cameron, with orders to return and join, after examining the cruizing
ground off St. Thomas. at day-break she discovered a strange ship .
to which she gave chase," The Maidstone outstript her consort, and
. captured the slave ship, containing four hundred slaves; the Bann
soon after came up, and recognized her as the very same vessel which she
had examined a few days before, when she was empty of any cargo."
The Orestes, 2 Hagg. Adm. 38 n., March 1827. A Spanish brigantine
was captured in March 1826, with 265 slaves on board, and taken into
the Havannah where the Court of mixed Commission condemned the
brigantine, and decreed the slaves to be emancipated."
The Slave Grace, 2 Hagg. Adm. 94, November 1827. "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. She continued with Mrs. Allan till
August 8th, 1825, when she was seized by the waiter of the customs at
Antigua 'as forfeited to the King, on the suggestion of having been
illegally imported in 1823.' [95] On August 5, 1826, the judge of the
Vice-Admiralty Court of Antigua decreed 'that the woman Grace
be restored to the claimant [Allan], 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 circum-
stances, slavery was so divested by landing in England that it would not
revive on a return to the place of birth and servitude ?"
Judgment affirmed: [Ioo] she was not a free person; If she de-
pends upon such a freedom, conveyed by a mere residence in England, she
complains of a violation of right which she possessed no longer [IoI]
than whilst she resided in England, but which had totally expired when
that residence ceased and she was imported into Antigua; [104]
upon a question addressed to Lord Talbot and to Mr. Yorke, whilst At-
torney and Solicitor General.1 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 [105] determined or varied; and they were also of
opinion that the master might legally compel him to return to the planta-
tions; a similar judgment [was] pronounced in 1749 by Sir Philip
Yorke, then become Lord Chancellor Hardwicke, This judgment .
was reversed by Lord Mansfield. The personal traffic in slaves resi-
dent 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 posses-
sions. Lord Mansfield was extremely desirous of avoiding the neces-
sity of determining the question: he struggled hard to induce the parties
1 See Opinion of Sir Philip Yorke, p. 12, supra.








English Cases


to a compromise, .but [106] was at last compelled after a delay of
three terms to pronounce a sentence, which discharged this negro; .
The real and sole question 1 which the case of Sommersett brought before
Lord Mansfield, was, whether a slave could be taken from this country
in irons and carried back to the West Indies, to be restored to the dominion
of his master? [Io9] 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 main-
tained their sway in this country, history has not recorded... [II]
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 those persons, if born within
the colony, have come slaves into the world, and in some instances have
suffered all the consequences of real slavery; [112] It appears to me
to be a strong presumption in favour of the parties charged with violating
the law, that neither the parties 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, The fact certainly is, that it
never has happened that the slavery of an African, returned from England,
has [113] been interrupted in the colonies in consequence of this sort of
limited liberation conferred upon him in England. .. he goes back to a
place where slavery awaits him, and where experience has taught him
that slavery is not to be avoided. .. [114] The domestic slave may, in
that character, 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. .
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 [115] that ought to govern in the case of negro
slavery. it has never been once applied, since the case of Sommersett,
to overrule the authority of the transmarine law. This cry has not,
1 So Lord Mansfield says in 1785, in King v. Thames Ditton, p. 20, supra.
2 Note: Herein," says Lord Coke, "the common law differeth from the civil law; for
Libertinum ingratum leges civiles in pristinam redigunt servitutem, sed leges Angliae
semel manumissum semper liberum judicant, gratum et ingratum." I Inst. lib. ii, sect. 204.
(Note in Haggard.)
4








Judicial Cases concerning Slavery


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,"
Review of the English decisions on the subject of slavery [116-123],
relying especially on Williams v. Brown, pp. 23-25, supra. [124] slaves
never have been deemed and considered as free persons on their return
to Antigua, or the other colonies... [125] 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. .. [127] slavery was a very favoured intro-
duction 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 [128] authority of this country. Instead of being con-
demned as malus usus, it was regarded as a most eminent source of its
riches and power. .. [134] 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." [Lord Stowell.]
On January 9, 1828, Lord Stowell writes Judge Story: [Here we may
quote from the correspondence between Lord Stowell and Justice Story,
printed in W. W. Story's Life of his father, I. 552 et seq.] I have been,
at this late hour of my time, very much engaged in an undertaking per-
fectly novel to me, and which has occasioned me great trouble and anxiety,
and that was the examination of a new question, namely-whether the
emancipation of a slave, brought to England, insured a complete emancipa-
tion to him upon his return to his own country, or whether it only operated
as a suspension of slavery in this country, and his original character de-
volved upon him again, upon his return to his native Island. This question
had never been examined since an end was put to slavery in England, fifty
years ago; but the practice has regularly been, that in his return to his
country the slave resumed his original character of slave. A case of
that kind was brought up by appeal from the Vice-Admiralty Court of An-
tigua, and has occasioned a good deal of attention and noise in England,
and the adjudication of it was referred to me by the Secretary of State,
Lord Bathurst. It has attracted much attention and observation in this
country, and I have had to consider this new question (as it was to me)
with very laborious research through the many Acts of Parliament re-
specting the Slave Trade-Acts not very carefully compiled and digested.
There were, in fact, five cases to be determined, and they have cost me a
great deal of trouble and anxiety."
Lord Stowell writes further on May 17: "I desire to be understood
as not at all deciding the question upon the lawfulness of the slave-trade,
upon which I am rather a stern Abolitionist, but merely this narrow
question, whether the Court of King's Bench, in the case of Sommersett,
meant to declare that our non-execution of the slave code in England was
a new [mere ?] suspension of it as respected England, but left it in full op-
eration with respect to the colonies-which some of our Abolitionists here
and some of our Judges there resolutely contend for. My clear opinion is
for its limited effect. The execution of the Code laws is suspended in








English Cases


England, as being thought inconsistent with the nature as well as the
institutions of this country. So far as it goes, but no farther, it does not
at all derogate from the law of the colonies upon the return of the
person so far liberated in England, but left exposed to the severity of the
law in the colonies, upon the return of the party so partially liberated here;
this is the whole of the question which I had occasion to consider, and is a
question which has nothing to do with the general legality of the slave
trade in the colonies. How the laws in respect of that trade made in
England and enforced by our courts of law, the King's Privy Council,
and the Court of Chancery, to their utmost extent, can consist with any
notion of its entire abolition here, is, in my view of it, an utter impos-
sibility.
I am a friend to abolition generally, but I wish it to be effected with
justice to individuals. Our Parliaments have long recognized it and have
not only invited, but actually compelled our colonists to adopt it, and how,
under such circumstances, it is to be broken up at the sole expense of the
colonist, I cannot see consistent with either common reason or common
justice; it must be done at the common expense of both countries; and
upon that part of the case very great difficulties exist. Our zealots are for
leaping over them all, but in that disposition I cannot hold them to be
within the wise or the just part of this nation."
Judge Story replies on September 22: "I have read with great attention
your judgment in the Slave Case from the Vice-Admiralty Court of
Antigua. Upon the fullest consideration, which I have been able to give
the subject, I entirely concur in your views. If I had been called upon
to pronounce a judgment in a like case, I should certainly have arrived
at the same result, though I might not have been able to present the reasons
which lead to it in such a striking and convincing manner. It appears to
me that the decision is impregnable.
In my native state, (Massachusetts,) the state of slavery is not recog-
nized as legal; and yet, if a slave should come hither, and afterwards return
to his own home, we should certainly think that the local law would re-
attach upon him, and that his servile character would be redintegrated. I
have had occasion to know that your judgment has been extensively read
in America, (where questions of this nature are not of unfrequent
discussion,) and I never have heard any other opinion but that of appro-
bation of it expressed among the profession of the law."
The Malta, 2 Hagg. Adm. 158, April 1828. The mate [159] "had
entered into the service of the ship at Liverpool in March 1825, for a
voyage to the coast of Africa and back to this country; she was seized
and brought to adjudication at Sierra Leone for alleged trading in slaves.
On those proceedings the vessel was condemned, and that sentence is now
the subject of an appeal in this court.1 The master [160] has also been
1Note: "The question, arising on the appeal related to the real character of the
alleged trading. The evidence showed, that it was the common practice of the native
merchants to pledge their wives and children for the delivery of goods contracted for in
barter with the trading ships; and that such pawns or pledges were, in some instances, not
redeemed, but carried into slavery, as the absolute condition of such contracts, agreeably to








Judicial Cases concerning Slavery


indicted on the same charge but acquitted; [172] the master, in
his defence, admitted the transfer of the women to the master of a Spanish
slaving vessel, and there was evidence of money passing between them.
He rested his defence only on his explanation of that act, that the Spanish
master had agreed to put them on shore, in their own country, about a
hundred miles further on the coast; and that he was empowered to receive
the money for which they had been held in pledge. I will not say more of
this transaction at present, than that it was highly imprudent and culpable;
and that it was very fit to be made the subject of enquiry before the tri-
bunals of the country." [Sir Christopher Robinson.]
Two Slaves, 2 Hagg. Adm. 273, December 1828. This was an appeal
from the Vice-Admiralty court of St. Christopher's. Two slaves, Betsey
Johnston and Emma Dowdy, were alleged to have been seized in the port
of Basseterreby the searcher of H. M. customs, and were proceeded against
under the provisions of the 5 G. 4. c. 113. s. 2. as forfeited by reason of
an unlawful importation into that island, in a schooner called the Selina.
In an affidavit of William Baker, the master of the schooner, it was stated,
'that on the evening of the day following that on which he sailed from
Roseau, in the island of Dominica, to which port the schooner belonged,
bound for Wilmington in North Carolina, he was informed by one of his
crew that there were two women concealed in the forecastle; that he im-
mediately sent for them, and discovered that they were slaves belonging
to Dominica; that he then endeavoured to reach the island of Montserrat,
but without effect, as the wind was contrary; and he worked into St. Kitt's,
being the nearest British port he could make, [274] where he brought the
slaves before a magistrate who committed them to gaol.' This affidavit
and two certificates of registration, transmitted from Dominica, for the
purpose of identifying the slaves, were allowed to be filed, and received
in lieu of a regular claim being interposed. The judge of the Vice-
Admiralty Court having declined to pronounce the slaves forfeited, an
appeal was prosecuted to this Court: and, after the usual proceedings, in
poenam, for want of an appearance on the part of the owners, the King's
Advocate prayed that the sentence should be reversed."

the general practice of the natives in their dealings with each other, [6o n.] Adverting
. to the extreme jealousy with which the abolition laws have prohibited every ap-
proach to the offence of holding persons as slaves, in the intercourse of British subjects
with the coast of Africa, the Court remarked-' such a practice could not be consistent
with the provisions of the abolition acts, and it strongly behoves British subjects trad-
ing on the coast of Africa to discontinue the practice, as likely to involve them in a
criminal violation of the law.' The offence alleged in this information was 'the trans-
ferring the individuals so held as pawns to a Spanish slave ship, for the purpose of
being transported as slaves beyond the seas.' the transfer was not that of absolute
and intentional sale of these persons to the Spanish captain; the number of the persons
was small, being only two or three women-others having been redeemed and restored
at different times. They were women belonging to the principal traders, and had come
from that part of the coast to which the Spanish captain was going; and some of their
relations were actually on board-who were not transferred-but went away in their
own boats. The transfer to the Spanish captain arose incidentally out of a barter for
other articles,-and the character of it is not perfectly clear. Some evidence has since
been supplied to show that these persons were actually restored to their friends;" Con-
demnation reversed.








English Cases


Held: "the case is not brought within the provisions of the act. The
Court, therefore, declines to disturb the sentence, notwithstanding the
appeal is undefended on the part of the owners." [Sir Christopher
Robinson.]
The Adelaide, 2 Hagg. Adm. 230, February 1829. "on the 22d of
January 1827, Capt. Jones of H. M. ship Orestes, seized the brig Adelaide,
of 1o7 tons, as she was lying at anchor near to the dock-yard at Ireland
Island in the Bermudas, having cleared out for Trinidad, and prepar-
ing to weigh anchor." [231] The claim was given with reference to the
Consolidated Slave Act, 5 G. 4. c. 113, and with an explanation of the
means used by the claimants to comply with its provisions, and particularly
those contained in the I7th section." Mr. M'Alister [234] is a British
subject resident at Trinidad: that he arrived at Bermuda on the 5th of
December 1826, that he found it necessary, for the comfort of himself
and family, that he should have at least two additional servants as
domestics; that in a family of negroes consisting of a mother [(238)
Hannah, a woman of forty years of age, described formerly as a laun-
dress, and four children, of eleven, nine, seven, and three years of age]
which were publicly advertised for sale, on or about the 29th of
December, he found such domestics, as he thought would answer his
purpose; that the distress manifested by the female slave Hannah, the
mother, at the idea of being separated from any of her children, induced
him to consult the collector of the customs as to the number of domestic
slaves which he might legally take with him to Trinidad; the collector gave
his opinion that he might take two for each member of his family, con-
sisting of himself, his wife, and infant child, viz. six of such domestic
slaves; [235] Hannah was willing to go to Trinidad," as she had
already a son in that island. That in consequence he did purchase the
family, and on the same day by bill of sale caused Hannah and Sue to be
conveyed to his wife; Daniel and Wellington to himself; and the female
slave, Allen, to his infant daughter." [240] "The claim of Mr. Wain-
wright relates to two slaves, Bob and Belinda, of the ages of seven and
twelve within the same objection as to their actual service and occu-
pation." The slaves were forfeited.
The Slave Fanny Ford, 2 Hagg. Adm. 271, July 1829. This was an
appeal from the Vice-Admiralty court of St. Christopher's brought by
Harriett Gardiner, a British subject resident in that island, claimant of the
slave 'Fanny Ford,' the sole property of the infant daughter of Mrs.
Gardiner. The slave had been seized in the town of Basseterre, by a waiter
of H. M. customs for that port. The libel or information pleaded the
illegal exportation of a female slave, called Fanny Ford, from St. Chris-
topher's to the island of Saba; and it appeared from the evidence that the
slave had belonged to Mrs. Ford, who had connections in business in Saba,
and among them, with an old Creole woman, to whose care this 'unman-
ageable child was consigned; that between 1814 and 1818 the child passed
from one island to the other several times; and in 818,. finally returned
to St. Christopher's. She was sold on the death of Mrs. [272] Ford;








Judicial Cases concerning Slavery


and transferred by the purchaser to the present possessor. In 1827 she
was seized and condemned, with costs, under the 5 G. 4 c. 113. s. 47."
Judgment reversed.
The Zepherina, 2 Hagg. Adm. 317, March 1830. "This was a slave
trader captured on the 14th of September 1828, after a joint chase by
H. M. S. Primrose, and H. M. armed brig Black Joke, attached to and
acting as tender to H. M. S. Sybille."
Stewart v. Garnett, 3 Simons 398, March 1830. Will of James Stewart,'
"late of Jamaica:" "I give, devise and bequeath one moiety of the
rents, issues and profits of my estate, named Islington and Cove's Pen,
S. to be divided equally amongst. ." At the time of his death, March 25,
1824, the testator was [399] "seised of a real estate called Islington
. in Jamaica, containing 700 acres of land, with buildings and machinery
for carrying on the manufacture of sugar and rum, and also of a pen
called Cove's Pen, being an appendage of the Islington estate, also in the
same parish, containing 300 acres, and that the testator was also at his
decease possessed of or entitled to 246 negroes on his estate called Islington,
and 25 negroes on Cove's Pen "
Opinion of the attorney general of Jamaica: [401 n.] By such a
devise he must necessarily have contemplated, not merely the lands com-
posing part of that estate, but the means attached to them, by which alone
they could produce rents, issues and profits. These means are the negroes
and live stock."
Held: [401] the real estate of the testator, at the [402] time of his
death, consisted of the estates called Islington and Cove's Pen, and also
of the said several negroes, horned stock, mules, sheep and other cattle
then being thereon respectively," The Vice-Chancellor [Sir L. Shad-
well]: [404] Now I understand the pen to be that part of a West India
estate which is used for the purpose of supporting the cattle employed on
the plantation. .. those words would pass everything that was necessary
to the enjoyment of the estate;"
The Vecua, 2 Hagg. Adm. 346, March 1831. "The Vecua, with her
cargo and 300 slaves, and the Ycanam, with 380 slaves, having been
condemned at Sierra Leone, upon the joint capture of H. M. S. Iphigenia,
and the Myrmidon, the usual warrants for the bounty money for
the slaves were made out and in October 1825, were received The
warrant for the slaves on board the Vecua was for 3000 1.; and the war-
rant on account of the Iphigenia, for 3800 1."
The Donna Barbara, 2 Hagg. Adm. 366, July 1831. "His Majesty's
ship Sybille, commanded by Sir F. A. Collyer, one of a squadron of which
he was commodore, was stationed off the coast of Africa for the preven-
tion of the slave-trade, and on the ioth of January 1829, being at the
island of Fernando Po, the commodore dispatched one of the boats of the
Sybille, under the first lieutenant (Harvey), with written instructions
to seize and detain all vessels trafficking in slaves contrary to certain trea-
ties. On the boat reaching Sierra Leone on the 2Ist, the crew, to protect







English Cases


themselves from the climate, went on board the Paul Pry, a former slave-
ship, which had been there condemned and purchased by the commodore.
On the 15th of March the Adorinta, a Brazilian brig, captured by the
Sybille, appeared off the entrance of the Sierra Leone river, in charge of
Mr. Browne, a prize-master from the Sybille. She had in company the
Donna Barbara, a Brazilian schooner, with a cargo of 367 slaves, shipped
in violation of the treaty between this country and the Brazils. This
vessel and cargo had been seized by Browne on his course to Sierra Leone.
Lieut. Harvey [367] went off to these ships in the boat of the Sybille, and
upon his informing Browne that he was not authorized to effect the
seizure, and desiring him to release her, the latter returned the papers to
the master of the schooner, whereupon she was seized by the boat under
Lieut. H.'s command, carried into S. L., and there condemned by the
mixed commission, 'as having been taken and seized by the Paul Pry,
a tender of the Sybille.' It was alleged for the Sybille, that this descrip-
tion, as a tender, was owing to some error in the institution of the pro-
ceedings; for that at the time of the seizure the Paul Pry remained
moored a considerable distance up the river; and that the seizure being
effected by a boat of the Sybille, detached therefrom under the command
of an officer of the rank required by the treaties, and the vessel having
been afterwards condemned by the commissioners appointed in virtue
thereof, the commander, officers, and crew of the Sybille were legally
entitled to one moiety of the proceeds of the schooner, and also to the
bounty-money for the slaves on board." 1
Held: the seizure by an open boat (the crew of which was borne on the
books of the Sybille), commanded by an officer of the rank required to
make the search, but actually putting off from an unauthorized tender,
and at a distance of 1500oo miles from the Sybille, did not entitle the Sybille
to the moiety of the proceeds or to the bounties. The instructions annexed
to the convention with Portugal, embodied in 5 G. IV. c. 113, imply that
the seizures of Portuguese slave ships are to be made under the personal
direction of the commander of a ship of war. [3 Hagg. Adm. 446.]
" From the rejection of the claim, Sir F. A. Collier appealed to
the delegates, [449] and on the 9th of January, 1834, it being
held that, independently of the merits, the sentence of the Mixed Com-
mission Court was conclusive as to the legality of the capture, the decree,
appealed from, was reversed."
Three Slaves, 2 Hagg. Adm. 412, July 1832. An information under
the Slave Abolition Act (5 G. IV. c. 113) for an illegal removal of two
female slaves, and a male infant, from Watling's Island to New Provi-
dence, without licence from the governor, and without a certificate of
registration. The seizure took place in June 1831;" Slaves condemned.
1"The said Commissary Judge and Commissioner of Arbitration [4491 pronounced
the said slaves, natives of Africa, to be emancipated from slavery, and to be employed
as servants or free labourers; at the time of passing the said sentence, 86 men, 129
women, 76 boys, and 6o girls, children under fourteen years of age, did compose the
whole of the slaves so decreed to be emancipated from slavery; 357 slaves were
seized and found on board of the said schooner and that six of the said slaves had
died between the time of the capture and of the condemnation of the said schooner."
3 Hagg. Adm., Appendix C, 448.








Judicial Cases concerning Slavery


The Slave Duncan, 2 Hagg. Adm. 427, December 1832. After the
vessel had sailed [June 16, 1831], the searcher of the customs discovered
that the slave Duncan had been put on board on the I5th, and had been
relanded on the I6th; and on that ground a seizure was made of the slave
at the public workhouse, which seems to be a place of deposit for slaves,
and where this slave had been placed by Mr. Lightbourn. [432] It ap-
pears that the slave was a considerable part of the year in the workhouse
as a runaway, and, therefore, might be known as Lightbourn's slave;"
The slave had been sold to Taylor of Ragged Island, where he [428]
"possessed an estate and plantation and a manufactory of salt; "
"Taylor had required Lightbourn to send the slave to Ragged Island;
that Lightbourn, having on the 14th of June, executed a bill of sale,
addressed an application to the governor for a licence to ship the slave to
Ragged Island, to Taylor, that the slave was carried on board on the
i5th, Lightbourn expecting to receive the licence, [429] that the
master becoming impatient to proceed on his voyage, and the licence not
being obtained [it was received later that day], the slave was relanded
from the vessel and taken to the public workhouse, and it was only some
time after the slave was lodged there, and the ship had sailed, that the
seizure was made." The sentence restoring the slave affirmed.
Gumbes's Case, 2 Knapp 369, June 1834. Colonel Gumbes [378] was
the proprietor of two sugar plantations, Cripplegate and Grand Caze, and
a small estate called Hoppe's, on which there was a large house, and which
was partly used as a cotton, and partly as a stock plantation. The French
government seized them on the 24th and 25th of April 1795, together
with the slaves, stock, and personal property on them, and they remained
in possession of them until the month of March 180o." He had 132
slaves.
Held: in estimating the compensation due for the loss of his estates, of
the actual produce of which, during the time of sequestration, there is
no evidence, the allowance of Io per annum for each negro on the
estate is not a right principle to proceed upon.
Case of the Compensation Commissioners under the Act for the Abo-
lition of Slavery, 3 Knapp 155, February 1835. One of these appeals
from the rules of the Commissioners appointed under the Act for the
abolition of slavery in the British dominions, 3 and 4 Will. IV. c. 73, was
by the agent for Jamaica, in his public capacity, on behalf of all the
planters in the island; the other was by the private proprietors of a
plantation in Demerara. [217] On the Ist day of August 1834, there
were 270 slaves, or thereabouts, belonging to the Bonne Intention Estate
[in Demerara], the value of which, in the year 1829, was 43,200 at the
least, and the value of the entirety of the said plantation and slaves

1 [434 n.] "the raking and manufactory of salt is a laborious, but a lawful employ-
ment for slaves; and as section 13 [of 5 G. IV. c. I13] does not define in what work
slaves shall be engaged when so bought and sold, I think the act will allow of the slave's
removal to his new purchaser's plantation, although he may be occasionally employed
in the manufactory of salt." (Letter of attorney general of the Bahama Islands to the
governor.)







English Cases


together was then 6o,ooo. It was calculated that the compensation
monies to be allotted in respect of the slaves on the plantation, under the
Abolition of Slavery Act, would not, according to the highest estimate,
exceed the sum of 13,500." A few alterations in the rules were made by
the lords of the Privy Council. [246] The following General Rules
were issued by the Commissioners of Compensation, in consequence of this
decision of the Privy Council, on the Ioth of March 1835, applicable to
all the colonies included in the Abolition of Slavery Act, except the
Mauritius and Cape of Good Hope, and have been confirmed by His
Majesty in Council, and enrolled in the Court of Chancery: "
The Marianna, 3 Hagg. Adm. 206, May 1835. The Marianna, a Bra-
zilian schooner fitted out for the slave-trade, was recaptured from pirates
on August 30, 1828.
Ex parte Borrodaile, 2 Mont. and Ayr. 398, July 1835. Held: slaves
in Antigua could not be equitably mortgaged by a deposit of a registered
title-deed, containing a schedule of slaves, if the memorandum accom-
panying the deposit, which is registered, do not contain a list of the slaves.
Gordon v. Bruce, 2 Moore P. C. 261, February 1838. Sir Michael
Bruce, of Stehhouse, in North Britain, was, in the year 1831, the pro-
prietor of two Sugar Plantations, called Shirvan and Telescope, in the
Island of Tobago, with the slaves upon and employed in the cultivation
thereof." In August 1831 he leased them to Gordon [262] for fourteen
years, determinable at the option of the Appellant [Gordon] at the expi-
ration of seven years, The Appellant covenanted to receive over,
feed, clothe, and care for properly, in every respect, according to the laws
and customs of the Island of Tobago, all the slaves then being on the said
estates." It was also provided, that if the power and authority of the
master over the slave should be further abridged, by Act of Parliament, or
any Regulation of the Colonial Legislature, so as to lessen the labour to be
obtained from the slave, or otherwise to diminish the returns of the
Lessees, then the loss thereby sustained should be referred to arbiters,
mutually chosen." After the act 3 and 4 Wm. IV. c. 73 (passed August 28,
1833), the lessor [263] preferred a claim as owner in fee simple to the
whole of the compensation-money payable in respect of the three hun-
dred and one slaves then domiciled on the above-mentioned estates."
Held: [267] "the second rule [of the General Rules issued by the
Commissioners of Compensation, March o1, 1835] made in pursuance of
[the 47th sect. of the act] declares that the compensation-money shall
be deemed to be of the same nature, and impressed with the same char-
acters, for all the purposes whatsoever, so far as the same can be so taken
or applied, as the slave, or slaves, in respect of whom such monies shall be
allotted.' [268] though the Lessor may have an ultimate interest in
the corpus, so to speak of the fund, or so much as shall not fairly represent
the labour of the slaves lost to the Lessee by their emancipation, yet the
Lessee is, in the first instance, entitled, [269] and his claim ought first to
be satisfied. It may be that the interest of the fund will sufficiently repre-
sent the labour: The clause of the lease respecting a decision by arbiters







Judicial Cases concerning Slavery


was not framed to meet a case of total emancipation; the case is one
entirely for the commissioners appointed by the act.
Stewart v. Gibson, 7 Cl. and Fin. 707, August 1840. in the year 1806,
James Broadfoot, merchant in Charleston, South Carolina, made a
purchase of the American ship Washington (which had shortly before
arrived in that port with a cargo of slaves from the river Congo in Africa),
in contemplation of fitting her out on another voyage to Africa, for the
purpose of trafficking in slaves: The vessel was sent to Liverpool and
there fitted out. [712] In order to facilitate the purchase of the Wash-
ington's cargo of slaves, the pursuer had shipped by a British vessel, named
the Croydon, from London for the river Congo, a quantity of muskets
and gunpowder, [713] for the sole purpose of bartering for slaves."
[712] "The reason why the muskets and powder were shipped by the
Croydon from London, was, that by the existing orders in Council, no
foreign ship was allowed to carry these articles under certain penalties.
After coming to anchor in the river Congo, the defender applied for, and
received from the commander of the Croydon, delivery of the muskets
and powder; but instead of carrying them ashore as he ought to have done,
he very improperly carried them on board the Washington. This transac-
tion was witnessed by a British letter of marque privateer, the com-
mander of which immediately went on board the Washington, and took
possession of her as a prize," [713] information given by a mutinous
American sailor."
The Eagle, I W. Rob. 236, June 1841. "The Eagle, equipped for the
slave trade, and navigated under American colors, and with an American
pass and master on board, whilst at anchor in Lagos Roads, on the 3Ist
December, 1838, was boarded from her Majesty's Ship Buzzard, (Lieuten-
ant Fitzgerald, commander,) but was not detained. In January, 1839,
the commander of her Majesty's ship Lily, finding the Eagle still
lying at anchor, took possession of her, and sent her .. to Sierra Leone
for adjudication. The Court of Mixed Commission refused to adjudi-
cate, upon the ground that the vessel was ostensibly American property,
and that the right of searching American vessels had not been conceded
to British cruisers by the American government." Later Lieutenant Fitz-
gerald, learning of these proceedings, "boarded the Eagle, and having
threatened the master to send him with the vessel to New York to be dealt
with by the law of the United States, the master confessed the property
[237] in the vessel to belong to Spanish owners; and that he was only the
ostensible master for colorable purposes, and that he surrendered to the
Buzzard. Lieutenant Fitzgerald subsequently proceeded in the Buzzard
with the Eagle, and another vessel detained under similar circumstances,
to New York .; but the American authorities being of opinion that the
papers under which the Eagle had been sailing were fictitious, declined
to interfere. Lieutenant Fitzgerald then resolved to send the Eagle to
Sierra Leone for adjudication as Spanish property, engaged and fitted for
the slave trade; In the progress of the voyage, the Eagle, having
sprung a leak, foundered;"







English Cases


The Sociedade Feliz, I W. Rob. 303, 2 id. 155, January 1842. Joint
capture, off Cape Palmas, in November 1839, of a Brazilian vessel engaged
in the slave trade. Held: in order to sustain the claim of the vessel assert-
ing an interest in the joint capture, it must be pleaded, Ist. That there was
an association and cooperation with the capturing vessel. 2d. That the
vessel claiming was seen by the captured slaves at the time the capture
was effected.
Guimaraens v. Preston, [Thirteenth of June], 4 Moore P. C. 167,
July 1842. [174] The Treze de Junho left the port of Rio de Janeiro
on the 28th of March 1840, under Portuguese colours, bound to the
port of Benguella, on the coast of Africa. .[175] on the 30th of
March the Curagoa fell in with the said brigantine and Captain
Preston sent a boat to examine her, there were on board of her
a considerable quantity of farinha, stowed in bulk, not on the manifest,
and in a much greater proportion than would be required for the use of her
crew: that buried in the farinha were found several new water-suckers,
two pumps, also a slave whip, and a rattle: that in her fore-hold were four
leaguers and four hogs-heads: on deck, two pipes, seven half-pipes, and
five quarter-pipes, all water-casks: the casks in the hold, one of which
was nearly empty, were stowed underneath part of her cargo, and could
not be required for the use of the crew on the voyage: that in the after-
part of her hold, near the helm, were found four shackles, and in every
part of the hold were considerable quantities of firewood, much more than
requisite for her consumption on the voyage: that the main hatchway was
bf unusual dimensions for a vessel employed in fair mercantile traffic:
that the long boat was needlessly large for a coast trader, besides a large
canoe, and a jolly boat: the cook house, also, was of large dimensions, and
the cabin had every appearance of having been used for slaves on a former
occasion: whereupon the said Captain Preston seized the said brigantine
as liable to forfeiture to Her Majesty."
Letters of instructions found among the ship's papers: [177] St.
John's Bar, 7th Dec. 1839. Sir,-By the brigantine Umbellina, I was
favoured with yours of the 2nd November, ultimo, accompanied with 31
volumes (slaves), which I sold at six months' credit, the nett
proceeds being reis 63651 dollars 680, [178] Your people (slaves)
arrived in very good order, and on account I obtained higher prices than
have been obtained for any others, hoping that you will be satisfied and
continue your favours; the cargo of the brigantine Umbellina brought
various prices, yours being the highest, and the lowest 255 dollars,"
[179] Rio Janeiro, 27th March 1840. I have given to your command
the brigantine Thirteenth of June, you will sail direct for the port of
Benguella with great caution, with this I accompany a public form
of writing which proves the said vessel made four voyages from
Benguella to this port, always laden with wax, honey, oil, and urzella,
which is proved by the certificates of manifests which documents you
must show in the event of your being boarded by any Portuguese or
English cruizer. Your wages will be 700 dollars on your safe arrival;
the mate Ioo dollars; the boatswain Ioo dollars; five seamen at 45 dollars;








Judicial Cases concerning Slavery


and seven slaves belonging to the vessel, with whom you must be very
cautious, in order that they may not escape." The crew consisted of
fifteen persons, among them the cook was entered as Jose, a native of
Africa, and in lieu of wages, 'gratis' was written: and under the title of
'Lads' there were six additional names entered, and their condition de-
scribed as 'slaves of Francisco Fernandez Guimaraens.' The vessel was
seized and despatched to Rio de Janeiro. There [174] "a strict and care-
ful survey was made," and she was navigated to the Island of Barbadoes,
in charge of the mate and an English crew (her master and commander,
Jos6 da Lomba, being on board), to be proceeded against in the Vice-
Admiralty Court of that Island." Condemnation under 2 and 3 Vict.,
c. 73, affirmed.
Mittelholzer v. Fullarton, 6 Q. B. 989, Trin. vac. 1842. by agreement
made 1834 in consideration of 7800 1., plaintiff did sell all
his right to the services and labour of 153 apprenticed labourers for-
merly slaves,"
The Florida, 2 W. Rob. 97, April 1843. the Portuguese schooner the
Florida was seized and taken, with a cargo of 283 slaves on board, by her
Majesty's brig of war Harpy and carried to the Island of Grenada, where,
in consequence of the vessel being unseaworthy, the slaves were landed
and delivered over to the collector and controller of Her Majesty's customs
at that island."
Regina v. Zulueta, I Car. and Kir. 215, October 1843. [221] In the
month of June, 1839, a vessel called the Golupchick was seized off the
coast of Africa, as a vessel engaged in the slave trade, at which time
Bernardos, one of the persons named in the indictment, was the captain.
The Court at Sierra Leone refused to interfere with her, as from her paper
and colours she appeared to be a Russian vessel, and she was accordingly
sent to England and given up to the Russian authorities. In June,
1840, the Golupchick was sold to a person named Emanuels, who after-
wards agreed to sell it to Jennings, the other person named in the indict-
ment, for 650. Jennings, who had been in the employ as a captain of
Martinez and Co., of the Havannah, wrote to the house of Zulueta and Co.,
in London, who were the correspondents and agents of that house on the
subject. [222] on the 29th August, 1840, Zulueta and Co. drew a
check on their bankers for 650, which was cashed and paid to
Emanuels, at Portsmouth, for the vessel, by Jennings and Bernardos in
company together. The name of the vessel was changed .to the
Augusta;" she [223] cleared out for Gallinas on the 9th of November,
1840, having in the meantime taken on board as her cargo, [216] 29
hogsheads of tobacco, 6 cases of arms, I case of looking-glasses, o1 casks
of copper ware, 134 bales of merchandize, 1600 iron pots, and 2370 kegs
of gunpowder," [224] To shew the nature of the trade carried on at
Gallinas," Captain Denman, of the Royal Navy, said, that there was no
trade carried on but the slave trade: he said also, 'At most places on the
coast there is both a lawful trade carried on and the slave trade: the
Gallinas is an exception, the only exception I know indeed; I know that








English Cases


from my own personal presence on the spot.' Another witness, Lieu-
tenant-Colonel Nicholl, said: The general course is to barter British
manufactured goods for slaves, who are brought from the interior of
Africa to places where the trade is carried on; slaves are usually brought
to the Gallinas for the purpose of being sold or bartered for the goods
which they meet with there; it is notoriously the most infamous slave-
dealing port on the whole coast of Africa; there is a continual drain of
slaves from all parts of the interior contiguous to it, continually coming
down to the Gallinas; there is nothing going on there but the slave
trade." Several letters, nine in number, which were found on board the
Augusta at the time she was seized, were tendered in evidence. [225]
Capt. Hill said, that, when he seized the vessel, it was not fitted up as a
slave vessel, but added that the slave fittings could be obtained at Gallinas,
and that three or four hours would be sufficient to put them in." Two
letters from Zulueta and Co., found on board the vessel, were not admitted
in evidence against the prisoner as they were not traced in any way to his
knowledge. He had "admitted [before the Committee of the House of
Commons] that he had managed the whole of the business relating to the
Augusta, but denied that he had any knowledge that the vessel or goods
were to be used for the slave trade. His explanation of the transaction
. was, that the firm of Zulueta and Co., as agents for Martinez and Co.,
purchased the Augusta for Captain Jennings, with money belonging to
Martinez and Co., in their hands, [226] that Zulueta and Co. had no
interest in the result of the adventure, and had nothing further to do with
the transaction. He admitted that their house had had transactions with
the coast of Africa to the amount, in twenty years, of about 400,000;
about 20,ooo or 22,000 of which might be connected with the Gallinas."
Kelly, for the prisoner, contended that the statute 5 Geo. IV. c. 113 did
not apply to a trading in slaves in foreign parts, but only to slave trading
in England or English colonies." Maule, J., in declining to reserve the
point, said that their lordships did not entertain any doubt on the subject
[227] that the legislature had the intention, among other things, of
preventing Englishmen from dealing in slaves on the coast of Africa."
He left it to the jury to say whether there was in fact a slave adventure,
and, if there was, whether the prisoner, who managed the transaction,
was or was not aware of the purpose for which the vessel was intended
to be used. Verdict-Not guilty."
Buron v. Denman, 2 Exch. 167, February 1848. [173] The plaintiff
was a Spaniard, who carried on the slave trade at the Gallinas, on the
western coast of Africa, north of the Equator. He possessed barracoons
or factories at Kamasura, Chicore, Dombocorro, Etaro, and other places
in the Gallinas. The defendant held the rank of commander in the Royal
Navy, and in March, 1840, had been placed, as senior officer, in charge of a
part of the coast of Africa lying between Capes Verde and Palmas, with
instructions to suppress the slave trade. Whilst so engaged, he received
a letter dated the 30th of October, 1840, from Colonel Sir Richard
Doherty, the then Governor of Sierra Leone, requesting him to take
measures for the immediate liberation of a negro woman named Fry
Norman, and her child, British subjects belonging to Sierra Leone, who








Judicial Cases concerning Slavery


were detained [174] as slaves at the Gallinas by Prince Manna, the eldest
son of King Siacca, the negro Sovereign of that country. This letter con-
tained the following passage: But should it be found impossible to effect
this object without resorting to force, you will employ force as far as may
be necessary, and as your orders and the rules of your service may permit.
Should circumstances require it, I shall be prepared to assist you, to the
extent of my ability, with a military party from this garrison, or in such
other manner as may appear to you advisable.' Accordingly, on the i9th
of November, 1840, the defendant, having previously issued a 'general
order respecting the expedition, entered the Gallinas river with the British
vessels Wanderer, Rolla, and Saracen, and an armed force of about 120
men. Observing that the Spaniards were carrying off in their canoes a
number of slaves, the defendant chased them, and succeeded in capturing
about ninety, amongst whom were two British subjects, named John
Fraser and John Parker. The defendant landed at Dombocorro, and,
having taken possession of the plaintiff's barracoons, spiked the guns and
placed sentinels at the doors. At this time the Government of the Gallinas
consisted of King Siacca, his eldest son Prince Manna, and three chiefs
of the name of Rogers. The defendant wrote to King Siacca, demanding
the liberation of Fry Norman and her child, and complaining of the
conduct of the Spaniards in carrying on the slave trade. Several letters
having passed, the woman, Fry Norman, and her child were delivered
up; and on the 21st of November, 1840, the following treaty was con-
cluded and signed by the defendant, and Prince Manna on behalf of King
Siacca (who was bedridden from old age), and the chiefs of the country:
In consequence of the white slave-dealers settled in the river Gallinas
having prevented the boats of her Britannic [175] Majesty's ships from
receiving the common rights of humanity when in distress and seeking
refuge in King Siacca's waters, in violation of his dignity and of his
rights, thus exposing him to differences with the Queen of England; and
also in consequence of a Sierra Leone boy having been made a slave of by
these men at the river Gallinas, who was discovered and released by Com-
mander Denman on the 19th inst. Ist. King Siacca engages totally to
destroy the factories belonging to these white men without delay. 2nd.
King Siacca engages to give up to Commander Denman all the slaves who
were in the barracoons of the white slave-dealers when he entered the
river, and have been carried off into the bush. 3rd. King Siacca engages
to send these bad white men out of his country by the first opportunity,
and within one month from this date. 4th. King Siacca binds himself in
the most solemn manner that no white men shall ever for the future settle
in his country for the purpose of slave trading. 5th. Commander Denman,
upon the part of her Britannic Majesty, promises never to molest any
of the legitimate commerce of the Gallinas; but that, on the contrary, her
ships shall afford every assistance to King Siacca's subjects, and take
every opportunity of promoting his commerce. 6th. The Governor of
Sierra Leone will use his influence to get the Sierra Leone people to open
the trade with King Siacca's country. 7th. No white men from Sierra
Leone shall settle down in King Siacca's country without his full per-
mission and consent. 8th. All complaints that King Siacca may have to








English Cases


make hereafter concerning any of her Majesty's ships, he.is requested to
forward at once to Sierra Leone; and a full investigation, and such
redress as the occasion may require, [176] is solemnly promised by Com-
mander Denman on the part of her Britannic Majesty. Done at Dom-
bocorro, in the river Gallinas, this 21st day of November, 1840. Prince
Manna X (mark). Licomi Rogers X (mark). John Siliphi Rogers X
(mark). Signed, Jos. Denman, Commander and Senior Officer on the
Sierra Leone Station.'
"On the 23rd of November, the defendant, in the execution of this
treaty, commenced burning the plaintiff's barracoons. On one occasion,
at the request of Prince Manna, the defendant with his own hand fired
two rockets, which burnt the barracoons at Kamasura. The defendant
also set fire to the village of Chicore, by which the plaintiff's barracoons
in that place were destroyed. Before the expedition landed, there were
about 300 slaves in these barracoons, besides great quantities of cotton
and woollen goods, gunpowder, spirits, and goods of various descriptions
adapted for slave traffic. On the approach of the expedition, the slave-
dealers deserted the factories, and let loose the slaves, who were driven up
the country. Great numbers of these slaves were afterwards taken by
the defendant and carried to Sierra Leone where they were emancipated.
The goods were claimed by King Siacca, as forfeited in consequence of
the owner having acted in defiance of his law, and were delivered up
to him; the gunpowder was thrown into the river; and the casks of spirits
were broken in, and the spirits allowed to flow away on the sand, it being
suggested that they were poisoned. The defendant continued to fire the
barracoons until the 26th, (that at Dombocorro being the last destroyed),
when he re-embarked and proceeded to Sierra Leone, having succeeded in
liberating 841 slaves."
These proceedings were communicated to the Lords of the Admiralty,
and the Secretaries of State for the foreign and colonial departments, and
they respectively, by letter, adopted and ratified the act of Denman. [182]
" The correspondence relating to these proceedings was laid before Parlia-
ment, and by the o1 and 11 Vict. c. 107, a sum of 7500 was appropriated
for the suppression of the slave trade on the coast of Africa, 4000 of
which was voted to the defendant and his men for their services at the
Gallinas. The present action was commenced in the year 1842."
Held: first, that the plaintiff had a property in his slaves, and might
maintain trespass for their seizure, the slave trade not being piratical
by the law of nations, and it not appearing that Spain had passed any law
abolishing the slave trade pursuant to the treaty embodied in the 6 and
7 Will. IV. c. 6. Secondly, that the ratification of the defendant's act by
the ministers of state was equivalent to a prior command, and rendered it
an act of state, for which the Crown was alone responsible, (Parke, B.,
dubitante) : and that such defense was open under the general issue.
The Felicidade, otherwise Virginia, 3 W. Rob. 45, April 1848. On
the 6th of March, 1845, her Majesty's sloop Star, whilst cruizing on
the coast of Africa, described a schooner in latitude 3 o1' north, and
longitude 30 43' east, whereupon sail was made in chase, and'at 3.30 a. m.,








Judicial Cases concerning Slavery


the Star having come] up with the schooner, Captain Dunlop, the com-
mander, boarded her, and found her fitted and equipped for the slave
trade. Captain D. observing that several of the crew of the said schooner
wore bandages on their heads, directed the surgeon of the Star to examine
them, and a report being made that the men appeared to be cut and
wounded on their heads with cutlasses, Captain D. caused the crew to be
put in irons, and shortly after such order was made, one of the said
crew stated that the schooner had been captured by her Majesty's sloop
Wasp; that the crew of the Felicidade had killed the prize crew belonging
to the Wasp, and that the wounds which were observed were inflicted at
the time when the crew of the schooner killed the prize crew, and retook
possession of their vessel. Upon this confession Captain D. ordered the
second lieutenant of the Star to take charge of the schooner, and proceed
with her to Sierra Leone for adjudication. In the progress of the voyage
the Felicidade capsized in a white squall, and was totally lost," The allega-
tion in behalf of the officers and crew of the Wasp pleaded, [46] Ist.
That on or about the 27th day of February, 1845, her Majesty's said
sloop Wasp, whilst cruizing on the coast of Africa for the prevention of
the slave trade, etc., fell in with and seized the Felicidade, a Brazilian
vessel, then equipped for the slave trade, but without any slaves actually
on board, and manned with a crew of thirty persons, including the master.
That the whole of the crew, except the master and one other person, were
removed on board the Wasp, and Lieutenant Stupart and Mr. Palmer, a
midshipman, with sixteen seamen belonging to the Wasp, were put on
board, with orders to convey her to Sierra Leone for adjudication. 2nd.
That the two vessels having parted company, the Felicidade, on the 2nd of
March, 1845, fell in with and seized another Brazilian vessel called the
Echo, with 431 slaves on board, whereupon Lieutenant Stupart, with
seven of his men, went on board the Echo, leaving Mr. Palmer in charge of
the Felicidade with the remaining nine men belonging to the Wasp, the two
persons of her own crew, and twenty of the crew of the brigantine the
Echo. That the two vessels remained in company during the [47] night,
but on the following day the Brazilian people on board the Felicidade
rose upon the said Mr. Palmer and his men, slew the whole of them, with
the exception, of two blacks, who jumped overboard, and swam ashore,
and took possession of the vessel, and after making an ineffectual attempt
to recapture the Echo, sailed away and stood out to sea, chased by the
Echo, which being a bad sailor soon lost sight of her. 3rd. That the
Felicidade, having outsailed the Echo, stood to the southward towards
the Isle of Princes, and whilst so standing during the night of the 4th of
March was fallen in with and captured by her Majesty's sloop Star."
Held: [48] "the original seizors never completed their possession."
Richards v. Attorney General of Jamaica, 6 Moore P. C. 381, July
1848. [383] James Clayton White was owner in fee of two plantations,
and the slaves thereon [172 in number], in the Island of Jamaica." His
will, dated June 13, 1834, on which day he died: "I give, devise, and
bequeath, share and share alike, unto Rosanna Richards, and her four
daughters, together with each of my natural and reputed sons of colour,








English Cases


the children of Rosanna Richards aforesaid, namely, George White, and
Edward White, all my right, title, and claim for compensation, such as
may be awarded to me as my portion of the compensation-fund for the
emancipation of such slaves as may belong to me, and be living on the
Tst day of August, in the present year of our Lord 1834." The will was
attested by two witnesses only, and was, therefore, void as to the devise
of real estate. By the law of Jamaica, slaves could only be directly
devised as real estate. [387] The compensation-money in respect of the
slaves of White, amounting to the sum of 3242 7 s. 3 d., was, by an order
made in the cause, dated the 28th of July, 1837, paid to the Receiver-
General of the Island. [388] In the course of the suit [in the Court
of Chancery of Jamaica] payments [were] made out of the
compensation fund, the aggregate of which amounted to 2582 10 s.; leav-
ing out of the compensation money the sum of 890 only, in the hands of
the Receiver-General, to the credit of the cause."
Held: (treating the slaves as real estate) the legislature became pur-
chasers, under the 3 and 4 Will. IV. c. 73, from the date of the act
(August 28, 1833), giving a limited interest in the slaves for a term of
years to the vendor, and the money to be received under the compulsory
sale of the slaves was converted into personal estate, and passed to Rosanna
and her children, as specific legatees under the will.
Edward v. Trevellick, 4 El. and Bl. 59, June 1854. The plaintiff, [62]
"an African and a negro was serving as seaman on board the
Candace and before he deserted the said ship, the captain threat-
ened to sell plaintiff as a slave on the arrival of the ship at San
Francisco," Held, on demurrer, a bad replication, as not showing that
California was a state in which the plaintiff could be sold as a slave.
Dubitante Crompton, J.
The Newport, II Moore P. C. 155 and Swabey 317, February 1858.
[179] "at a period antecedent to the date of the present transactions,
both Flores and Garrido were largely engaged in the Slave trade, and that
for several years before 1851 they were employed in the regular purchase
and transmission of slaves from [180] the west coast of Africa to a
company of merchants at Rio de Janiera. In 1851, however, strenuous
efforts were made by the Brazilian Government to put down the traffic
. with great success. In the year 1853, there seems to have been
some increase of the Slave Trade both north and south of Loanda, .
but in February, 1855," the Commissioners reported that such increase
had been only momentary, and had entirely ceased." After 1851 Flores,
and Garrido as his agent, were engaged in adventures of sending
slaves to Cuba." The British authorities addressed urgent remonstrances
"to the Portuguese Government against permitting Flores to remain
in their territory in Africa, and .an order for his removal .was
served upon him in June, 1854."
Santos v. Illidge, 8 C. B. (N. S.) 861, July 1860. Facts in the case:
"The plaintiff is a Brazilian: The defendants [British subjects resi-
1 Same v. same, 6 C. B. (N. S.) 841 (844).








Judicial Cases concerning Slavery


dent and domiciled in Great Britain] are the directors of a company called
the Brazilian Mining Association, formed for the working of mines in the
Brazils,-an English company. The company being in course of winding
up in the court of Chancery, an order was made for the sale of their
property including a number of slaves [employed in working their
mines in Brazil] and one of the directors proceeded to the Brazils
for the purpose of effecting a sale. On his arrival at Rio de Janiero, the
director contracted for the sale of the slaves to the plaintiff [for the sum'
of 32,000 1.], but was prevented by the interposition of the British consul
there from carrying it into effect. For this breach of contract the present
action is brought:" Some of the slaves had been purchased by the de-
fendants in Brazil after the passing of the 5 G. IV. c. 113, but before the
passing of the 6.and 7 Vict. c. 98; the rest of the slaves were the offspring
ot those first mentioned, and were in the possession of the defendants
before the passing of the last-mentioned act.
Held, by Bramwell, B., Hill, J., Channell, B., and Blackburn, J., re-
versing the judgment of the Court of Common Pleas: the contract [872]
"was one which the defendants could lawfully enter into, and which
must be enforced here. if the 5 G. 4, c. 113, did prohibit the purchase
of these slaves, the contract for their sale is lawful. The 6 and 7 Vict.
c. 98, s. 5, permits the sale wherever the 'holding' is not prohibited.
Now, the holding of slaves by a British subject in the Brazils is
nowhere prohibited. But it is said that this holding was prohibited, be-
cause there can be no lawful holding where there was an unlawful acqui-
sition. No doubt it is a strong thing to say a man could acquire a property
by an act in itself a felony. But it is not a property which our laws deal
with; it is a Brazilian right the defendants are selling. It cannot be said
that in fact the defendants do not hold these slaves. They do: and it is
not in terms made unlawful by any law of this country. I think the
true construction of the 5th section is, to say it applies to cases where
the holding is unlawful, whatever be its origin." [Bramwell, B.] Pollock,
C. B., and Wightman, J., held that the contract was illegal and void-
the 5 G. IV. c. 113, prohibiting the buying or selling of slaves by British
subjects everywhere, and there being nothing in the subsequent statute
to remove that prohibition.
Brig, name unknown, Bro. and Lush. 370, December 1864. [374]
" Both vessels left Loando in company on the Ioth July [1862], but with
different objects in view. The Dart was on a cruise for the suppression of
the slave trade. The Falcon was bound to the Isle of Ascension, on her way
to England, but she was, as well as the Dart, duly authorized to capture
vessels engaged in the slave trade." The Dart captured a vessel engaged
in the slave trade, in sight of the Falcon. The captain of the Falcon,
deeming the Dart sufficient for the purpose, did not get up steam, but
continued his course. The chase lasted a few hours only.
Held: the Falcon is entitled to share as joint captor. Proof that
the alleged joint captor was seen by those on board the prize before capture
is important, but is not absolutely required as in cases of prize of war.















VIRGINIA.
INTRODUCTION.

I.
The most interesting matter contained in the earlier part of the follow-
ing body of extracts is found in those cases which have to do with the
beginnings of negro slavery and the end of Indian slavery. Those cases
are so scanty, are involved in such obscurity, and are connected with such
a maze of statutes, that they require illumination before they can furnish
it. The text needs a commentary; and since these cases come early in the
chronological order of arrangement, the first part of this introduction is
of that nature.
To write the history of slavery in Virginia in the seventeenth century
is like putting together a picture puzzle when many of the pieces are
missing, like reconstructing a Greek vase from a few shards. Others may
fit the fragments in a different fashion.
The servant 1 problem, or rather, the problem of service, in the early
colonial days defied solution, but necessity caused nine or ten varieties
of servitor to be evolved in Virginia, most of them existing in the other
colonies also. These varieties, arranged approximately in order 2 of social
precedence, were: the white indentured servants; the white servants with-
out indentures (of whom there were two classes, those who came volun-
tarily, and those who came involuntarily, of which latter class were the
men, women, and children who were "spirited away, those who left
their country for their country's good, and probably the Duty boyes ") ; S
the Christian negro servants; Indian servants; mulatto servants (whose
servitude was the penalty for having a white mother and an Indian, negro

1 The term servant" was used to designate anyone who rendered service-the laborer
as well as the household servant.
2 See the case of Hannah Warwick, for a reversal of this order. Minutes of the
Council, ed. McIlwaine, 513.
3 Whereas there remain [in October 1627] certain of the Duty boyes, whose first
seven years of service as apprentises expired in May last past, and were from that
time to begin to serve other seven years as Tenants too halves;" ibid., I54. They
belonged to that band of 5o boyes, which were by our late dread soveraigne Kinge James
commanded to bee sent over hither, and arrived here in the Dutye 1619." Ibid., 117. Such
an importation was suggested ten years earlier by Hugh Lee, writing to Thomas Wilson
from Lisbon: Five caracks sailed for the East Indies, .carrying in the place of
soldiers, children and youths from the age of ten upwards, to the number of 1,5oo; in a
few years they say these children will be able to do good service, their bodies being well
acquainted with the climate of those countries; thinks it were no evil course to follow
in England for planting inhabitants in Virginia; it is forced by necessity in Lisbon."
Brown, Genesis of the United States, p. 249.
4 Usually without indentures; but see p. 57, infra.









Judicial Cases concerning Slavery


or mulatto father,5 or, after 1723, for being descended in the maternal
line from such a combination of ancestors) ; Indian slaves; negro slaves.
Most of these varieties existed side by side in Virginia in the seven-
teenth century (let us hope, for the sake of the owners, that no one
plantation held them all); but the last possessed the germinal potentiality
of a certain mustard seed, outstripped the rest, and "waxed a great
tree," while the others, like saplings, perished in its shade.7
In what order did these varieties emerge?
An ancient blue law of the colony of Virginia runs thus: Every
person to go to Church Sundays and Holy days or lye neck and heels on
the Corps du Guard the night following and be a Slave the week following,
Second Offence a Month, third a Year and a Day. Ioth May 1618." 8
The penalty sounds certain, severe, and calculated to deter truancy in a
community acquainted with slavery, but meaningless to one which knows it
not. The word "slave is not defined. It is taken for granted that its
connotation is obvious to the colonists. Yet where could they have learned
in 1618 what service it implied (for they were Englishmen), if slaves
were a novelty to them on that August day in 1619 when, as Master
John Rolfe" 9 relates, "came in a dutch man of warre that sold us

53 Hening 87. Re-enacted in 1705.
6 4 Hening 133. "These servants bear greater resemblance to apprentices than to
slaves." Jefferson's argument in Howell v. Netherland, Jefferson 90 (91), 1770.
7 The reason for this was, that the African was transplanted far from home and
along isothermic lines. Neither the Indian nor the English servant satisfied both these
requirements for successful service in the climate and on the soil of Virginia. A third
ground for the survival of negro slavery, the African's supposed innate docility, is not
supported by the facts. See act of the Virginia assembly of October 20, 1669, 2 Hen.
270, "about the casual killing of slaves. Whereas the obstinacy of many of them
by other than violent means [cannot be] supprest," and the notable cape of Overzee's
slave Tony, 41 Md. Arch. 19o (1658).
The changing proportions of negroes and white servants in Virginia in the seventeenth
century are indicated by the following extracts from the Northampton County records:
"the first negro is mentioned [in 1636] who was brought by John WVilkins along with
twenty five servants," 4 Va. Mag. Hist. 402; inventory of Burdett's estate, in 1644,
"8 servants with various times to serve and 2 negros," ibid., 406; inventory of Walker's
estate, in 1655, "4 white servants with certain times to serve and 3 negros," 5 Va. Mag.
Hist. 40.
In 1671 the answer to one of the "Enquiries to the Governor of Virginia" states
that, at that time, "there are two thousand black slaves, six thousand christian servants,
for a short time." "Yearly, we suppose there comes in, of servants, about fifteen hun-
dred, of which, most are English, few Scotch, and fewer Irish, and not above two or
three ships of negroes in seven years." I Hening 515.
In 1678 there is a Proceeding [in the General Court] for bringing more negroes from
Africa than ought to have been brought under contract." McIlwaine 519.
In 1698 Governor Nicholson writes from Maryland to the Board of Trade: "There
hath been imported this summer about four hundred and seventy odd Negros, vizt 396
in one ship directly from Guiny, 5o from Virginy, which came thither in a ship from
Guiny, 20 from Pensylvania, which came thither from Barbadoes: Number of Ser-
vants imported .may be about 6 or 700, whereof most part are Irish. Both in Vir-
giny and here .the major part of the Negros speak English: and most people have
some of them as their domestic servants: and the better sort may have 6 or 7 in those
circumstances: and may be not above one English." 23 Md. Arch. 498.
s Randolph MS., 15 Va. Mag. Hist. 405.
9 A member of the council, and our first secretary, who was on the spot." Jefferson's
Reports, II9n. Dr. Brown, Genesis, and Dr. Ballagh, Slavery in Va., disagree as to the
share the famous Treasurer had in bringing the first negroes.








Virginia: Introduction 55

twenty Negars." 10 Even then the Virginia colonists did not learn the
ways of slavery from those twenty,11 for, though they had been slaves
among the Spaniards, their capture by the Dutch frigate, cruising pirati-
cally among the West Indies,12 had changed their status to something
indeterminate and transitory, which faded out or merged automatically
(and, as it were, cinematically) into servitude analogous to that of the
indentured white servants,'1 when they touched Virginia soil. The Dutch
ship had been a Godsend to them.
But why this step upward? Why did not the status of slave persist?
The most convincing answer, and one which the few known facts support,
is that some or all of these negroes had been baptized by the Spaniards;
and by the law of England, which governed Virginia, a slave who had
been christened or baptized became infranchised." 1 We have only the
scant testimony of their names.15
Of the original twenty negroes brought in, in 1619, we know perhaps
the names of eleven.18 One of them, a negro woman, owned by John
Rolfe's father-in-law (not Powhatan, but Captain William Pierce, father
of his third wife),1' was called "Angelo [sic], a name uncommon in
England and unknown in Africa. Others were Anthony and Isabella,
whose master was Captain William Tucker of Elizabeth City. Their
child William is not listed in the census of 1623, as he was probably not
yet born, but he appears in Captain Tucker's Muster in 1625.18 It is
significant that his baptism is recorded, as is that of another William,
an Indian owned by Captain Tucker, while no mention is made of the
baptism of Anthony and Isabella. This is undoubtedly because they had

10 Relation of J. Rolfe, incorporated in John Smith's Generall Historic of Virginia,
Arber ed., p. 541.
11 See p. 59, infra.
12 For a description of a similar cruise in 1625, made by the Black Bess, a Dutch man-
of-war, whose captain (Powell) commanded the "dutch man of warre" in 1619 (24 Va.
Mag. Hist. 56, n. I), see McIlwaine 66-68. The captain and crew were English, as was
also the name of the Dutch ship.
13 See Ballagh, White Servitude in Virginia.
14 Butts v. Penny, 3 Keble 785, in 1677, is the first reported English case which enun-
ciates this doctrine, but it was not new. In Maryland, in 1664, the lower house desired
the upper house to draw up an Act obligeing negros to serve durante vita for the
prevention of the damage Masters of such Slaves may susteyne by such Slaves pre-
tending to be Christned And soe pleaded the lawe of England." I Md. Arch. 526. Such t
"lawe of England" must have been in force in 1612, for "John Phillip A negro," who
was "sworn and exam" in the General Court of Virginia in 1624, was qualified as a
free man and Christian to give testimony, because he had been "Christened in England
12 years since." McIlwaine 33.
16 If the argument from the names seems weak because of the meagre evidence, we
can explain the higher status which the Spanish negroes attained on reaching Virginia
only on the ground of expediency. White servitude in Virginia had crystallized into a
definite system by 1619, the year of the first negro importation, and it was easier to in-
corporate the negroes into that system than to put them in a class apart. See Ballagh,
Slavery in Virginia, pp. 31, 32.
16 See Lists of the Livinge and Dead in Virginia, Feb. I6th, 1623," in Colonial Records
of Virginia, 1619-1680, and in Hotten, Original Liits of Emigrants, 1600-1700; also
"Musters of the Inhabitants of Virginia," in Hotten.
17 Hotten, p. 224; Brown, Genesis, p. 987.
18 Hotten, p. 244.








Judicial Cases concerning Slavery


already been baptized under Spanish auspices, as their names indicate;
for it was and is a rule of Christianity to administer the rite but once to
each neophyte. There were also two other Anthonys, two Johns, and
William, Frances, Edward, and Margarett,"1 whose names may or may
not have been anglicizations of Antonio, Juan, Guillen, Francisca, Edu-
ardo, and Margarita.
The names of the negroes who trickled in singly in the next few years
after the first wholesale importation in 1619 indicate antecedent Spanish
baptism also. Antonio 20 came in 1621, in the James; Mary,21 in 1622, in
the Margrett and John; John Pedro 22 in 1623, in the Swan. The name
Mary, if not an anglicized form of Maria, might have been bestowed
either in England 2 or in Virginia. No doubt attaches to the origin of
Antonio and John Pedro.
By the same testimony of nomenclature, "Brase," who came to Vir-
ginia in 1625 (with Captain Jones, commander of the Mayflower in
1620),24 had not been baptized, unless Brase" was a corruption of
" Bias or Blaise," 2 or a shortened form of Ambrosio. However
that may be, the precedent of negro servitude, as distinguished 'from
slavery, had, by that time, become established, and Brase was assigned
first to Lady Yeardley till further order, at a monthly wage of forty
weight of good merchantable tobacco," 26 and finally to Sir Francis Wyatt,
governor, as his servant.27
The difference in names between the second generation of negroes and
their elders is shown, even more strikingly than in the case of William, the
son of Anthony and Isabella, in an inventory of 1644: 28 one negroe man
called Anthonio One negroe woman called Mitchaell [Michaela] .
One negroe woman, Couchaxello .One negroe woman, Palassa .
One negroe girle Mary 4 years old .One negroe called Eliz: 3 years
old." The only explanation seems to be that Anthonio, Mitchaell, Couch-
axello, and Palassa received their names before leaving the Spanish
dominions, while the children were born in Virginia and consequently
received the English names of Mary and Elizabeth. But these negroes in

19 This result is obtained by comparing the Lists of 1623 with the Musters of
1625. See Hotten.
20 Hotten, p. 241.
21 Ibid. They were both servants of Edward Bennett in 1625; and they may have been
the "Anthony Johnson, negro, and Mary his wife" who were, in 1653, exempted by the
Northampton County court from paying taxes, having "been Inhabitants of the county
above thirty years, and having the great misfortune to lose by a fire after great service
and etc." 5 Va. Mag. Hist. 36. To be sure there were other Anthonys in the colony in 1623,
and no doubt other Marys.
22 Hotten, p. 258.
23 As in the case of John Philip, p. 55, supra.
24 24 Va. Mag. Hist. 56, n. I.
25 He was accompanied by "a Frenchman and a Portugall," all three having been
received from a Spanish frigott." Mcllwaine 68.
26 Ibid., 72.
27 Ibid., 73.
28 York County Records, 17 Va. Mag. Hist. 211.








Virginia: Introduction


the inventory of 1644, though they bore Christian names, seem to have
been, not servants as the early negroes were, but slaves; for by 164429
times had changed."8
The early theory that the enslavement of infidels was justifiable in order
to make Christians of them, had for a corollary that, when the purpose
of enslavement had been achieved by their conversion, their slavery ceased
and they became free. This corollary had become difficult of application.
If freedom was a reward of baptism, could any slave resist it, no matter
how rudimentary his theology, or could many masters welcome it? And
even if slaves had not been baptized, they could easily pretend to have
been-a danger recognized by the Maryland legislators in 1664.81 It
became expedient to require a more*' visible and more permanent" sign "
than the water of baptism to differentiate the slave from the free, and a
quietus was put on baptism as a method of emancipation, by statutes in the
various colonies. The Virginia act was passed in 1667:
Whereas some doubts have risen whether children that are slaves by
birth, and by the charity and piety of their owners made pertakers of the
blessed sacrament of baptisme, should by vertue of their baptisme be made
free; It is enacted that the conferring of baptisme doth not alter the
condition of the person as to his bondage or freedom; that diverse masters.
freed from this doubt, may more carefully endeavour the propagation of
christianity by permitting children, though slaves, or those of greater growth
if capable, to be admitted to that sacrament." "2
Thenceforth baptism ceased to be the test of freedom and color became
the sign of slavery: black or graduated shades thereof. A negro was
presumed to be a slave."3
There are two cases which illuminate the transition period in Virginia.
In 1641 John Graweere being a negro servant unto William Evans i
who permitted him to keep hogs and make the best benefit thereof to I
himself provided that the said Evans might have half the increase, which
was accordingly rendered unto him by the said negro and the other half
reserved for his own benefit" and "having a young child of a negro

29 In 1642 "John Skinner mariner, covenantedd and bargained to deliver unto .
Leonard Calvert [of Maryland], fourteen negro men-slaves, and three women slaves,
of between 16. and 26. year old able and sound in body and limbs, at some time before
the first of march come twelve-month, at St Maries, if he bring so many within the
Capes, within the said yeare" 4 Md. Arch. 189. "This seems to be the first refer-
ence to the importation of negroes into the Province. In this particular case it seems
that the slaves were not furnished." Note by Dr. W. H. Browne, ibid., vii.
80 This may have been partly due to the policy adopted, 1637-1639, for Providence Island.
Company of Providence Island to the governor and council, June 7, 1639: "if the
number [of negroes] be too great to be managed, they may be sold and sent to New
England or Virginia." Calendar of State Papers, Colonial, I. 296. Also pp. 249, 277, 278.
81 See note 14.
32 2 Hening 260.
33'Wheeler, Law of Slavery, p. 5.
84 I Va. Mag. Hist. 281; McIlwaine 477.








Judicial Cases concerning Slavery


woman belonging to Lieut. Robert Sheppard which he desired should
be made a christian and be brought up in the fear of God and in the
knowledge of religion taught and exercised in the church of England,"
bought the child's freedom, and the court ordered that the child shall be
free from the said Evans or his assigns and to remain at the disposing
and education of the said Graweere and the child's godfather, who under-
taketh to see it brought up in the christian religion as aforesaid." It is
significant that Graweere had to buy the child's freedom before christian-
izing it. Freedom preceded baptism in 1641, instead of resulting from it
as in the earlier time. Moreover, if Graweere had been a white servant, no
such proceedings in court would have been required to confirm his right
to purchased property and to disaffirm any right of his master to it; but
such precaution seemed necessary in the case of the negro servant, for
his master Evans helped him to procure the order of the court by a deposi-
tion in his behalf. Evidently the status of the negro servant was beginning,
in 1641, to sink to that of slave. It is also significant that the earliest
will (we know of) emancipating negroes 3 is dated 1645. By it one
Vaughan freed his negroes at certain ages; some of them he taught to
read and make their own clothes. He left them land." 37 They may have
been slaves originally, or they may have fallen to that condition.
The other important transition case 38 is that of "A Mulata named
Manuel" whom "Mr. Thomas Bushrod bought as a Slave for
Ever but in September 1644 the said Servant was by the Assembly
adjudged no Slave and but to serve as other Christian servants do and
was freed in September 1665." But "other Christian servants" did
not serve apprenticeships of twenty-one years.89 Furthermore, though
Manuel's status as a Christian servant was admitted in 1644 and con-
tinued till 1665, he would not have been classed as such in 1670. By
an act of that year,40 the term41 is reserved for white servants, in
35 Beside the ground of religion, there was a special and urgent moral reason for the
purchase of the child, and its separation from its mother, if she was the same "negro
woman servant belonging unto Lieutenant Shepard," whom "Robert Sweat hath begot-
ten with child" and whom the court, in October, 1640, ordered to "be whipt at the whip-
ping post and the said Sweat shall tomorrow in the forenoon do public penance for his
offence at James city church in the time of devine service according to the laws of
England in that case provided." Ibid.
36 That is, in the printed records at present available.
37 Northampton County Records, 5 Va. Mag. Hist. 40.
38 Randolph MS., 17 Va. Mag. Hist. 232.
83 The usual term was five years, but in 1671 the court ordered that the child of an
40" Whereas it hath been questioned whither Indians or negroes manumited, or
otherwise free, could be capable of purchasing christian servants, It is enacted that noe
negroe or Indian though baptised and enjoyed [enjoying] their owne freedom shall
be capable of any such purchase of christians, but yet not debarred from buying any of
their owne nation." 3 Hen. 280.
41 The terminology in the middle of the seventeenth century was in a state of flux.
Though negroes are listed indiscriminately with white servants in 1623 and in 1625 (see
Hotten), they are classified apart in an inventory of 1644,* and servant," standing alone,
Inventory of the Burdett estate: "8 servants with various times to serve and 2
negros." Northampton County Records, 4 Va. Mag. Hist. 406.








Virginia: Introduction


spite of the fact that colored servants of the Christian faith had not be-
come extinct.42
During these transition years the negro servant of the old class which
enjoyed approximate, though not complete,43 equality with white servants,
survived in some instances. In 1647 Francis Potts has two negro chil-
dren bound to him for a term of years, and he binds himself to furnish
them sufficient meat and drink and apparel and lodging, and to use his
best endeavours to bring them up in the fear of God The name of the
negro from whom he bought them was Immanuel Driggus or Driggs-
he was a servant to Francis Potts." So late as 1669 Hannah Warwick's
case before the General Court was extenuated because she was overseen
by a negro overseer." His authority over a white servant was evidently
felt, in 1669, to be somewhat outrd.
In 1661 occurs the first reference,48 in the statutes of Virginia, to
negroes in their quality of slaves, though they are not so denominated till
the following year, when a more comprehensive act on the same subject is
passed. The latter act47 provides that
in case any English servant shall run away in company of any negroes
who are incapable of making satisfaction by addition. of a time: the
English soe running away in the company with them shall at the time of
service to their owne masters expired, serve the masters of the said negroes
for their absence soe long as they should have done by this Act if they
had not been slaves, every christian in company serving his proportion;
and if the negroes be lost or dye in such time of their being run away, the
christian servants in company with them shall by proportion among them,
either pay fower thousand five hundred pounds of tobacco and caske or
fower years service for every negroe so lost or dead.
had generally become synonymous with "white servant," and "negro" with "negro
slave; t but "servant" is used in its broadest sense in the act of 1670, for the "runa-
ways," for whose apprehension it provides a reward "to the taker of them up," include
"every servant of what quality soever;" though "the servant.not being slave (who are
also comprehended in this act)" must repay "the publique"' for the amount expended
for his capture, by an additional term of service to "any person he shalbe assigned to"
"after the expiration of his full tyme due to his master." 2 Hen. 277. That the runaway
servant was, in the eyes of the colonists, primarily a white servant is shown by another
section of this act which provides "that every master having a servant that hath runa-
way twice shalbe commanded to keepe his haire close cutt," a requirement which had
been more particularly defned in the act of March 7, 1659, entitled "How to know a
Runnawvay Servant." i Hen. 517.
42 The status of mulatto servants for a term of years was created by act of April
1691. 3 Hen. 87.
48 ,It is declared," in the act of Sept. 23, 1667, "that negro women, though permitted
to enjoy their freedom yet ought not in all respects to be admitted to a full fruition of
the exemptions and impunities [immunities] of the English, and are still lyable to pay-
ment of taxes." 2 Hen. 267.
44 Northampton County Records, 4 Va. Mag. Hist. 407. See also Mcllwaine 316
(1672), 354 (1673), 372 (1674), infra.
45 McIlwaine 513. According to Beverly, "An Overseer is a Man, that having served
his time, has acquired the Skill and Character of an experienced Planter, and is there-
fore intrusted with the Direction of the Servants and Slaves." History of Virginia
(ed. 1722), p. 236.
4) Act of Mar. 32 [12], 1661, 2 Hen. 26.
472 Hen. 117. See Mcllwaine 382 (1674), p. 80, infra.
t The usage in Maryland is shown by the title of the act of September 1664, "Con-
cerning Negroes and other Slaves." I Md. Arch. 533. In the act of September, 1681,
" other precedes Slaves" in the text, though not in the title. 7 Md. Arch. 203.








60 Judicial Cases concerning Slavery

r The clause, who are incapable of making satisfaction by addition of a
time," is not necessarily a description of all negroes,48 but might simply
distinguish negro slaves, as they are denominated further down, from
negro servants, who, like the English servants, were capable of making
Satisfaction by addition of a time," and it might be argued that the law-
makers, in substituting the word christian for English," later in the
text, felt that the latter was too narrow a term. That may be true, but it is
likely that the broader term was chosen for the sake of including the Irish
and other white servants, regardless of negro or Indian servants who were
probably so few in comparison as to be negligible. The act of I670,49
in which the term christian servants is used as a synonym of white
servants," supports this view.0" Another act of I670,"5 in regulating the
status of all servants not being christians" who shall thenceforth be
imported, divides them into two classes: those imported into this colony
by shipping," who shall be slaves for their lives," and what shall come
by land," who shall serve, if boys or girles, until thirty years of age, if
men or women twelve years and no longer." This act favored the Indian,
who usually came by land,52 and fixed the status of slave on the non-
Christian African, who usually was imported into this colony by ship-
ping," but the African coming by sea might still keep his status of servant
for years if he had become a Christian before landing. Such an one must
have been the Spanish Mullatto, by name Anthonio," sold by John
Indicott [Endicott] of Boston in 1678 to Richard Medlicott, to serve But
for Tenn years 5 from the day that he shall Disimbarke In Virginia, and
at the expiration of the said Tenn years the s'd Mullato, Anthony,
to be a free man to goe wherever he pleaseth." For Endicott's intention
that he should not be a slave for life would have been defeated, if he had
been imported not being Christian."
Such also was the case of another Antonio, sold two months later by
"John Saffin, of Boston Merch't, in consideration of the sume
of Twenty pounds Sterling by me Rec'd of Ralph Wormeley, of the
County of Midd'x, in Virg'r, Esqr., to serve during the terme
of Tenn year and noe longer, But then the said serv't to be free and
wholly at his own dispose (Mortalaty always excepted)." 5

48 The Maryland act of October 1663 is more definite: "Whereas divers English
Serv'ts Runn away in Company with Negroes and other Slaves, who are incapeable of
making Stis faccion by Addicion of Tyme." I Md. Arch. 489.
49 2 Hen. 280.
50 As to terminology, see note 41, supra.
51 Act of Oct. 3, 1670. 2 Hen. 283.
52 See the exceptional case of the Carib Indians, in 1627. McIlwaine 155, infra,
pp. 76-77.
53 The name shows Spanish baptism, as in the case of the Antonio and Anthonys of
the first importations. See pp. 55-57, supra.
54 "I having full power to sell him for his life time, But at the request of William
Taylor, I doe sell him But for Tenn yearss" Deed, Mar. 5, 1677/8, in Middlesex (Va.)
Records, 8 Va. Mag. Hist. 187.
55 Deed, May 18, 1678. Ibid.








Virginia: Introduction


Four years later, no such restriction of length of service could have
been made in the case of imported negroes, moors, mulattoes or Indians,"6
who and whose Parents and native country were not christians at the time
of the first purchase of such servants by some christian, although after-
wards and before such their importation, they shall be converted
to the christian faith." All such are adjudged by the act of November
o1, 1682 (which repeals the act of 1670)," to be slaves to all intents
and purposes, any law, usage or customer to the contrary notwithstanding."
Nothing could be more explicit.
This act of 1682 became notable in the late eighteenth and early nine-
teenth centuries, inasmuch as the courts of that time deemed it the earliest
act which legalized Indian slavery.59 One of Bacon's laws, however, dated
June 5, 1676, provided "that all Indians taken in warr be held and
accounted slaves during life," so and, though it was repealed in February
1677 (after his fall), the restored government ordered "that all such
soldiers who either already have taken 61 or hereafter shall take prisoners
any of our Indian enemies, and at the tyme of taking were or
shall hereafter be under a lawfull command reteyne and keep all such
Indian slaves to their owne proper use." 6 The act of April 25,
1679,63 substantially re-enacted Bacon's law by providing, for the better
encouragement of the soldiers, that what Indian prisoners shall
be taken in warre, shalbe free purchase to the soldier taking the same."
However, the acts of 1676, 1679, and 1682, instead of forging new
chains of slavery for the captured Indian, simply re-welded the old
which had been struck off for a brief respite by the act of 1670.64 No

16 Only Indians of hostile tribes, for the preamble of the act of 1670 (which the act
of I682 repeals) shows that the Indians who are the subject of its enactment are those
" taken in warr by any other nation, and by that nation .sold to the English." Ch. 12,
2 Hen. 283.
5 2 Hening 490.
'58 Ibid., 283.
59 The existence of Indian slavery was recognized by an act of 1670 (ch. 5, 2 Hen.
280), which prohibits Indians, though manumitted, from purchasing Christian servants.
St. George Tucker observes: "From this act it is evident that Indians had before that
time been made slaves." Dissertation on Slavery, with a Proposal for the Gradual Aboli-
tion of it, in the State of Virginia, p. 34. An act of 1672 (2 Hen. 299) provides that if
any negroe, molatto, Indian slave, or servant for life, runaway it shall be lawfull
. .upon the resistance of such to kill or wound him;" for the act of 1670, chapter 12
(2 Hen. 283) was not an act for Indian emancipation. It was not retroactive. Indians
who were slaves before its passage, remained such.
60 I Hen. 346.
61 Hening notes that it "appears from the resolution of the assembly [in 1677],
that the practice of making slaves of Indian prisoners had existed much earlier"
than 1679. Ibid., 404n.
62 Ibid., 404.
63 Ibid., 440.
64 Which favored the Indian taken in warr by any other nation, and by that nation .
sold to the English," by providing that servants not being christians who shall come
by land shall serve only for a term of years, while those imported by shipping shalbe
slaves for their lives." 2 Hen. 283. Though Indians usually came by land, they were
occasionally imported by shipping. Mary and Bess, who were brought in a ship before
1682, were legally slaves, but this status of theirs under the act of 1670 was lost sight of
in 1792 and their descendants were adjudged free. Jenkins v. Tom, p. 99, infra.








Judicial Cases concerning Slavery


written law was needed in the early colonial days to define his status.
Throughout the ancient world, and in some parts of the modern world,
the captive was a slave,65 and this ancient axiom of international law was
the law of nature to the Indian. His captive, whether white or red, was
his to kill or to torture, to adopt or to sell. He did not hesitate to reduce
to slavery the early settlers who fell into his hands,6" and they reciprocated.
Such a doubt as assailed the legislators of 1670, who disputed "whither
Indians taken in warr by any other nation, and by that nation .sold to
the English, are servants for life or terme of yearss" never troubled the
minds of the early colonists. John Smith, who had himself been a slave
among the Turks, had no such compunction, not limiting the traffic to those
of Indian blood. Henry Spelman relates that, a few weeks after his
arrival in Virginia in 1609, I was carried by Capt Smith our President
to the Fales, to the litell Powhatan where unknown to me he should me
to him for a towne called Powhatan." 6"
The early settlers not only bought Indians from other Indians, but from
other Englishmen. A Maryland colonist deposes in June 1648, that Mr.
Sowth 70 [of Virginia] desyred him to sell him an Indian. This Dep't
answered him, he had none to sell. And then he desyred this Dep't to goe
with him up to Wicocomoco, and gett him an Indian [girle],71 and hee
would give him content. And upon these speeches they went with the
Sloope." 72
Conversely, Coll Francis Yardley 3 and Nathaniel Batt both of Vir-
ginia for a good and valuable consideration to them in hand payed .
became bownd [in 1653 "7 or 1654 7] unto Thomas Cornwaleys [of
Maryland] in the penalty of five thousand weight of Tob, with cask,
for the delivery of Two Indian yowths." 76

65 Even in England, so late as the reign of Anne, the court, in the case of Smith v.
Gould, seemed to think that in trespass quare captivum suum cepit, the plaintiff might
give in evidence that the party was his negro, and he bought him." 2 Salk. 666.
66 Letter of Argall to Hawes, June 1613: an Indian was dispatched to Powhatan,
to let him know that I had taken his Daughter [Pokohuntis]: and if he would send
home the Englishmen (whom he deteined in slaverie, that then he should have his
daughter restored, otherwise not: towards whose ransome within few days, this king
sent home seven of our men, who seemed to be very joyfull for that they were freed
from the slavery and fear of cruell murther, which they daily before lived in." Brown,
Genesis, p. 643.
67 Preamble to chapter 12 of the act of 1670, entitled "What tyme Indians to serve."
2 Hen. 283.
68" Litell Powhatan" was what the Maryland colonists called a friend pagan."
There was no traffic with enemy pagans."
69 Spelman's Relation. Smith (Arber ed.), p. cii.
70 Evidently Leif't Will'm Sowth of Kecoughtan in Virginia," who, the next month
[July 1648], gave a bond, with Richard Torney of Virginia," that they shall not within
these five next ensuing years attempt to take, or carry away any Indian or Indians,
out of the precincts of this province, without leave of the Gov'r thereof." 4 Md.
Arch. 399.
1 Lancelett's deposition. Ibid., 392.
72 Duke's deposition. Ibid.
73 41 Md. Arch. 82.
74 Ibid., 254.
75 Ibid., 186.
76 Two Indian Slaves." Ibid., 186, 254.








Virginia: Introduction


However, the colonists did not depend on traffic or kidnapping for
their supply of Indian slaves, but took the "enemy pagan" by their
own prowess in war, and enslaved him long before the passage of the
Virginia acts of 1676 and 1679. When forces were being raised in
Maryland, in 1652, for a march against the Easterne Shore In-
dians, Such Indian prisoners as Shall happen to be taken are declared
the spoil of those who financed the expedition.7 Indians were also reduced
to slavery in punishment for crime."
Thus we have shown that the first slaves in the colony of Virginia were
Indians, not negroes, and that the laws of the colony sanctioned Indian
slavery except (as regards prospective importations by land) for a few
years after the passage of the act of 1670. The practice of the colonists,
in accordance with their laws, is illustrated by cases in the courts of Vir-
ginia and Maryland 79 from 1627 to 1831. In 1627 some Indians of the
Carib Ilands were brought into the country [Virginia] by Capt.
Sampson," but the experiment was too disastrous to warrant repetition,
at least on a wholesale scale.80
Besides the traffic in Indian slaves between Virginia and Maryland
colonists, mentioned above,8s the Maryland court records contain other
instances of Indian slavery. Paul Simpson Marriner," in 1648, com-
plains that Captain Edward Hill had not delivered to him two Indian boys
whom he had covenanted to deliver, whereby the Compl't is damnifyed
to the valew of 2000 1. Tob. and cask (though he shouldd the said Bill
to George Manners for only 500 1. of Tob in Caske "). In Maryland,
in 1656, there belonged to the household of one Overzee a negro, a.white
woman servant, and an Indian slave. In 1661 one citizen of Maryland
" demands an Indian promist him in Sattisfaccion of another Indian
belonging to the pit. should by order of the deft. unto the Queene of
Portoback." 82 Sometime in the 1670's, the Indians Mary and Bess (the
ancestresses of Tom and others who brought action in 1792 to recover

77 "Every Seventh man throughout the province is to be pressed for this Service .
that every the Sixe persons through out the Province are to furnish out the Seventh
man Soe pressed [283] with Victualls Arms and Amunition likewise or-
dered that for all Such Indian prisoners as Shall happen to be taken, and brought in
when this March is ended they Shall be divided according to their Valuation [284]
throughout the Province amongst every the Six that are at the Charge of Setting forth
the Seventh .unless the Provinciall Court shall think fitt to dispose of any of them
otherwise." 3 Md. Arch. 282.
78 See case of Naughnongis, 41 Md. Arch. 186 (1658).
794 Md. Arch. 392, 399, 444, 512; 41 Md. Arch. 82, 186, 230, 254.
so See p. 76, infra.
81 P. 62, supra.
824 Md. Arch. 444, 512; 41 Md. Arch. 190, 471.
83 In the later history of Indian slavery in Virginia, it is the female Indian slave who
is prominent-as the ancestress of slaves petitioning for freedom, for if she had been
enslaved unlawfully, her descendants in the female line were free, in accordance with
the axiom of the civil law, parts sequitur ventrem, which was accepted generally, ex-
cept in Maryland for a few years (1664-1681).








Judicial Cases concerning Slavery


their freedom)"8 must'have been brought as slaves to Virginia, for a wit-
ness testified that he heard a certain other person now dead, say in the
year 1701, that when he was a lad about 12 years old, those women were
brought to this colony in a ship." By the acts of 1676, 1679, and 1682,
slavery closed in again, first on Indians captured in war by the soldiers,
and finally on all Indians sold by our neighboring Indians, or any other
trafiqueing with us as for slaves." 85
That Indians were brought in and held in slavery for many years sub-
Ssequent to 1682,86 is indicated by the evidence of witnesses and the asser-
tions of counsel in cases brought from ninety to one hundred and fifty
1 years later, and by acts passed in the eighteenth century. Robin and others
who brought actions in 1772 1 to try their titles to freedom were
descendants of Indian women brought into this country by traders, at
several times, between the years 1682 and 1748, and by them sold as
slaves under an act of Assembly made in 1682." Mason, counsel for
the plaintiffs, asserts that "hundreds of the descendants of Indians"
brought in between 1682 and 1684 "have obtained their freedom, on
actions brought in this court." In the case of Henry,88 in June 1772,89
the court gave judgment against many descendants of indians intro-
duced and held as slaves between 1682 and 1705." 90 That many Indians
were reduced to slavery between 1691 and 1705 is shown by Hening's
assertion that thousands of their descendants were deprived'of their
liberty "9 when they sued for it later on.
In the revisal of the laws in 1705, "An act 92 concerning Servants and
Slaves re-enacts chapter I of the act of 1682 in substance, but omits
the word Indian," and the special clauses respecting Indian slaves.3

84 Jenkins v. Tom, pp. 99-1oo, infra. They were adjudged to have been free, for the
court seems to have overlooked the fact that their importation between 1670 and 1682
rendered them subject to the provision of the act of 1670 that "all servants not being
christians imported by shipping shalbe slaves." 2 Hen. 283.
s5 I Hen. 346, 440, 490.
86 The council, however, in 1683, in its "report to the governor [Culpeper] of the
state of the country for three years," propose that no Indian should be a slave. The
ambiguity caused by the omission, from the acts of 1705, chapter 49, and of 1753, chap-
ter 7 (6 Hen. 356), of the Indian clauses of the act of 1682, was cured only in 1778, by
"An act for preventing the farther importation of Slaves .by sea or land." 9 Hen. 471.
87 Robin v. Hardaway, Jefferson 1og; p. 91, infra.
ss Cited in Gregory v. Baugh, 2 Leigh 665 (685).
89 Judge Green, in 1831, refers to "the multitude of cases upon that subject [Indian
slavery] decided in the general court in June 1772, in which parol evidence was given
reaching back to the close of the century before the last." Ibid., 683.
90 The sources for the supply of indian slaves, natives of the continent of America,
between 1682 and 1705, must have been very scanty, adverting to the state of things with
respect to our neighboring indians during that period; and there never was any source
of a supply from abroad, except such as might be kidnapped in the West Indies, for
there slaves were more valuable than here." Judge Green, in Gregory v. Baugh, p. 165,
infra.
91" Unjustly deprived;" I Hen. vii. Judge St. George Tucker, in Hudgins v. Wrights,
I Hen. and M. 134, agrees with Hening; but all depends on whether the act of 1691 has
any bearing on slavery. I agree with Colonel Bland and the court, in Robin v. Harda-
way (Jefferson log), that it has not. ED.
92 Ch. 49. 3 Hen. 447.
3 Colonel Bland, counsel for Hardaway, declares them "tautologous." Jefferson
109 (121).








Virginia: Introduction


Its last section repeals all and every other act and acts, heretofore
made, as relates to servants and slaves, as if the same had never
been made." Another act of the same session provides That there be a
free and open trade for all persons, at all times, and at all places, with all
Indians whatsoever 9-a re-enactment of a law passed in 1691.98
In 1772 the court expressly held, in Robin v. Hardaway,97 that the act
of 1682,98 authorizing the enslavement of Indians sold by our neighbour-
ing Indians, or any other trafiqueing with us as for slaves," was repealed
by the act of I705,"9 but that it was not repealed by the free trade enact-
ment of 1691, being convinced by Colonel Bland's argument that the acts
" relative to slavery, and those relative to trade are totally independent
of, and unconnected with one another," that the act of 1691 has no rela-
tion to those made on the subject of slavery,100 it was not made with any
eye to them, and should not, therefore, have any effect on them. If the
legislature had meant by this to repeal the act of 1682, they would have
done it in express terms, and not merely by a side wind, the effect of
which would at least occasion dispute."
The "side wind," as predicted, occasioned dispute twenty-one years
later, between two eminent members of the Virginia bar, John Marshall
and John Wickham. They were not acquainted with the act of 1691 or
with the decision of the court concerning it, in Robin v. Hardaway, or
with Mason's and Bland's arguments, for Jefferson's Reports of Cases
determined in the General Court of Virginia was not published till
1829; 101 but they perceived that the act of 1705 contained not only the
chapter concerning Servants and Slaves," but, in a subsequent chapter,
an enactment for a free trade with all Indians whatsoever." The
arguments of Marshall and Wickham appear in quotations on later
pages.102 The court evidently thought that trading or treating with
Indian nations, though it might be incompatible with enslaving individual
members of those nations thereafter, was not incompatible with retaining
943 Hen. 462.
95 Ch. 52, sect. 12. 3 Hen. 468.
9 3 Hen. 69.
97 Jefferson 1og (122).
98 2 Hen. 490..
99 By act of 1705 they meant the chapter entitled An act concerning Servants and
Slaves" (ch. 49, 3 Hen. 447), overlooking the fact that the free trade law of 1691 re-
appears as section 12 of a succeeding chapter (52, ibid., p. 468)-" the treaty law," as
Wickham calls it (Coleman v. Dick and Pat, I Wash. Va. 237), dealing with Indians as
nations, tributary and foreign.
100 Jefferson notes that the act of 1680 (2 Hen. 480--among the acts relating to trade,
cited by Colonel Bland) says, there shall be a free trade with our 'friendly' Indians;
that of 1691, with 'all' Indians. The acts of 1670 and 1679 related to hostile In-
dians alone. Therefore, in 168o, the legislature, that their act opening a trade might not
repeal these laws, expressly give the license of coming to trade to 'friendly' Indians
only. But in 1691, when a general peace was now established, they extend their license
to 'all' Indians, because they meant that all should be now on a footing." The act of
1691 "should seem to favor the plaintiffs." Jefferson 121 n.
101 In 1831, Judge Carr cites with approval the decision in Robin v. Hardaway, "that
the act of 1691 did not repeal the indian slave laws." Gregory v. Baugh, p. 164, infra.
102 Coleman v. Dick and Pat (1793), pp. Io1-1o2, infra.








Judicial Cases concerning Slavery


in slavery such as were already in that condition-that the free trade act
was no act of emancipation; but held, that since its passage no American
Indian can be reduced into a state of slavery."
In 1806 103 the descendants of an old Indian called Butterwood Nan,"
who were about to be sent out of the state by their master, Hudgins,
obtained "a writ of ne exeat on the ground that they were entitled
to freedom." Unfortunately their ancestress had come in before 1705, for
she "was 6o years, or upwards, in 1755." Chancellor Wythe cut the
Gordian knot by decreeing that the appellees were entitled to their
freedom on the ground that freedom is the birth-right of every human
being, which sentiment is strongly inculcated by the first article of our
' political catechism,' the bill of rights." Hudgins appealed, and the higher
court affirmed Wythe's decree, but had to base its decision on another
ground, not approving of the Chancellor's principles and reasoning .
except so far as the same relates to white persons and native American
Indians, but entirely disapproving thereof, so far as the same relates to
native Africans and their descendants, who have been and are now held
as slaves by the citizens of this state." The ground which secured
freedom for the Wrights was that the section of the act of 1705 which
granted "a free trade with all Indians whatsoever "104 was dis-
covered by Judge St. George Tucker to be no new law, but a mere repeti-
tion and re-enactment of the act of 1691, chapter 9. Therefore he carried
the period after which Indians could not be enslaved further back than
1705, namely, to 1691. Thus that part of the decision of the court, in
Robin v. Hardaway, which denied that the act of 1682 was repealed by the
free trade act of 1691, was overruled by implication in 1793, and ex-
pressly in 1806. The decision in Hudgins v. Wrights was followed in
Pallas v. Hill 105 two years later. The Court took time in order to
obtain from the library at Monticello, the copy of a similar act, which
was understood to be in the collection of the President of the United
States." Another copy was obtained from Northumberland County.x10
Therefore Judge Tucker declared that the only question in these causes,
is, whether the act of Assembly cited and relied on by me in Hudgins v.
Wrights, as having passed in the year 1691, is to be regarded as the
law of the land, or not." All the judges agreed that it was.
The case of Gregory v. Baugh, 1827 and 183,107 involves the status
of Indian Sybil." The date of her arrival is not precisely given. She
died soon after October 1772, when the General Court made an order
allowing her to sue her master in forma pauperis and assigned "Mr.
103 Hudgins v. Wrights, I Hen. and M. 134; p. 112, infra.
104 3 Hen. 468.
105 Pallas, Bridget, James, Tabb, Hannah, Sam and others" were descended from
"Indian Bess" who "was brought into Virginia in or about 1703." P. 116, infra.
106 The last two manuscript copies were in the possession of WV. WV. Hening in 18O9.
i Hen. vii.
107 Pp. 147, 163, infra.








Virginia: Introduction


Jefferson her counsel to prosecute the said suit: this order must
have been founded on Mr. Jefferson's professional certificate, that he was
of opinion she was justly entitled to her freedom, and stating the grounds
of that opinion." Sybil's suit was abated on her death, and her grandson,
James Baugh, son of her daughter Biddy, brought suit for his freedom
fifty-five years later. By that time it was questioned whether such hearsay
evidence as that of an aged man, that he had heard his mother say that
Sybill's mother was an indian,'s0 and that Sybill herself was one, and
was entitled to her freedom ought to be admitted. Judge Carr, while
" exceedingly reluctant to unsettle what is at rest," declares that all who
have examined the earlier cases in our books, must admit, that our
judges (from the purest motives, I am sure) did, in favorem libertatis,
sometimes relax, rather too much, the rules of law, and particularly the
law of evidence. Of this, the court in later times has been so sensible, that
it has felt the propriety of gradually returning to the legal standard,1'9
and of treating these precisely like any other questions of property." The
court was divided on this question, and also on the question whether, if a
person claiming freedom on the ground of Indian descent in the maternal
line, prove his descent from a native American Indian ancestress, the onus
probandi lies on the defendant to prove that such ancestress was brought
into the country at a time and under such circumstances that such Indian
might lawfully be enslaved, or on the plaintiff, to prove that such his
ancestress was brought in at a time and under such circumstances that she
could not lawfully be enslaved. The facts disclosed in these cases show
that Indians continued to be brought in as slaves during the early part of
the eighteenth century, and an act of assembly, 1723,110 indicates that the
legislature of that time did not consider that Indian slavery was extin-
guished by the act of 1705. It was enacted That no negro, mullato, or
indian slaves, shall be set free except for some meritorious services."
As the child of an Indian was deemed a mulatto,"11 there would have been
no Indian slaves on which the act could operate, except those brought in
before 1705, if that act forbade enslavement of Indians thereafter. The
actual practice, as shown by the cases which came before the courts, proves
that the act of 1705 was not regarded as the palladium of Indian liberty
till some sixty-five or seventy-five years after its passage.
It must, of course, be kept in mind that the Indian ancestresses on whom
the suits for freedom were based, in all these cases, had been, theoretically
and perhaps actually, members of hostile tribes.112 The friendly Indian
108 If Sybil's mother was the Indian the date of whose importation was vital, she
might easily have been brought in before 1691; and if also after 1682, she and her de-
scendants were legally slaves.
109 To receive hearsay testimony as to pedigree, but not as to race or status.
110 4 Hen. 132.
1113, Hen. 252.
112 In the early colonial days, hostile Indians were all who were not "friendly." By
1682, the "friendly Indians" are called neighboringg Indians, confederates or tribu-
taries." The distance of the hostile Indian from the settlement is an important element
6









Judicial Cases concerning Slavery


was on an altogether different plane. The colonists made his temporal and
spiritual welfare the subject of their paternalistic legislation and benefi-
cence. The friend pagans 11 as they were called in Maryland (in dis-
tinction from enemy pagans ") might come to the colonists as hostages
in exchange for English hostages,"' might be employed as servants, the
male Indians being particularly useful in eking out the food supply by
hunting and fishing,"" or might be brought in as children by their parents
to be instructed in the Christian religion." In 1618, an unknown person
in England gave 550 in gold for bringing up children of the Infidels." 11"
Out of 1216 persons, white servants sent to Virginia in 1619, there were
"fifty whose labours were to bring up thirty of the infidels chil-
dren," l in true religion and civility." "9 Smith tells us that also in
1619, Master Nicholas Farrar deceased, hath by his Will given three
hundred pounds to the College, to be paid when there shall be ten young
Salvages placed in it, in the meane time four and twenty pound yearly to
bee distributed unto three discreet and godly young men in the Colony, to

of his hostility. His "foreign" quality is emphasized, and he is definitely located outside
the North American continent, by the court in Coleman v. Pat (I 'Wash. Va. 233), in
1793, which held that though no American Indian could be reduced to slavery since the
act of 1705, "Foreign Indians coming within the description of that act, might be made
slaves" [down to 1778]. But the term is used in the act of 1705, chapter 52, sect. II, to
designate non-tributary American Indians who are approachable by land, for the tribu-
tary Indians are required to "march, with the English, in pursuit of foreign Indians"
(3 Hen. 468) and the act of 1755 offers a reward "of ten pounds for every male In-
dian enemy, above the age of twelve years destroyed within the limits of this
colony." 6 Hen. 564. See also Butt v. Rachel, 4 Munford 209 (2ro, 211), and Gregory v.
Baugh, 4 Randolph 611 (633), pp. 125, 147, infra.
113 Infidel" was the general term for Indian in Virginia.
114 Argall to Hawes, June 1613: "all the Indians that were my very great friends, .
having concluded a peace .and likewise given and taken Hostages." Brown, Genesis,
p. 64I.
s5 The Salvages hath been employed in hunting and fowling with our fowling
peeces; and our men rooting in the ground about Tobacco like Swine." Smith, History
of Virginia (Arber ed.), p. 563. "Orders permitting persons to keep indians to hunt,"
October 1657. McIlwaine 505. "David Mansell allowed to keep 2 indians to work and
hunt for him." September 1668. Ibid., 511.
116 In October 1642, permission was given "to keep an indian boy, instructing him in
Christian religion." Ibid., 500.
117 Cal. St. Pap. Col., I, 23.
118 Smith (Arber ed.), p. 453. A disproportionate number of nurses or tutors, it seems,
especially at a time when all hands were needed to provide the necessaries of life. It
shows that the domestication of friendly Indians even was no easy task. In 1626 the
General Court allows William Claybourne to enjoy for "three years next ensuing .
all the benefit use and profit" of his invention for safe keeping of any Indyans,
which he shall undertake to keep for guides always ready to be employed, and hopetb
to make serviceable for many other services for the good of the whole Colony .
and further whereas there is one Indyan lately come in unto us, We doe give and sett
over unto the said Claybourne the said Indyan, for his better experience and tryall of
his inventione" McIlwaine IIi.
In the case of Indian slaves, the "wages of superintendence" reduced their economic
worth far below that of negro slaves. The act of 1672 "for the apprehension of
runawayes" provides that if a "negroe, molatto, Indian slave, or servant for life doe
dye of any wound in such their resistance received the master shall receive satisfac-
tion from the publique negroes shalbe valued at four thousand five hundred
pounds of tobacco and caske a peece, and Indians at three thousand pounds of tobacco
and caske a peice." 2 Hen. 299.
11' Abstract from Eng. Pub. Rec. Office, by W. N. Sainsbury, 6 Va. Mag. Hist. 231.


J *








Virginia: Introduction


bring up three wilde young infidels in some good course of life." 120 As the
college failed to materialize, Mr. George Menifye Esqr." was allowed
an annual income of one-third of this sum on presenting to the General
Court, in 1640, "an indian boy christened and for the time of ten
years brought up amongst the english by himself and Captain William
Perry deceased the indian was examined and found to have been well
instructed in the principles of religion, taught to read, instructed to writ-
ing: the governor and council approving and commending the care
that hath been used towards this youth, recommend .his [Meni-
fye's] suit for the allowance of 8 pounds per annum .towards the
maintenance of the said youth." 121
The act of March 1655 12" provides that all Indian children by leave of
their parents shall be taken as servants for such terme as shall be agreed
on by the said parent and master," and the act of March io, 1656, provides
that If the Indians shall bring in any children as gages then the
parents shall choose the persons to whom the care of such children
shall be intrusted and the country do engage that wee will not use
them as slaves, but do their best to bring them up in Christianity, civility
and the knowledge of necessary trades; And on the report of the com-
missioners of each respective county that those under whose tuition they
are, do really intend the bettering of the children in these particulars then
a salary shall be allowed to such man as shall deserve and require it." 123
Two acts were passed in 1658 for the protection of friendly Indians.
By one It is enacted that in case any Indian do dispose of his child to
any person either for education or instruction in Christian religion, or
for learning the English tongue or for what cause soever, those persons
to whom such child shall be disposed shall not assigned or transferred such
Indian child to any other whatsoever, upon any pretence whatsoever of
right to him or any time of service due from him, And such Indian
child shall be free and at his owne disposal at the age of twenty five
yearss" 124 By another act of the same session,'12 after a preamble,
"Whereas divers informations have been given of sundry persons
who have corrupted some of the Indians to steale and conveigh away
some of the children of other Indians, and of others who pretending to
have bought Indians of their parents, or some of their great men, have
violently and fraudently forced them awaie rendring religion con-
temptible, and the name of Englishmen odious," it is enacted that noe
person shall dare to buy any Indian .from .the English, and
120 Smith (Arber ed.), p. 543.
121 Mcllwaine 477.
122 1 Hen. 4I0.
123 Ibid., 396.
324 Act of Mar. 13, 1658, ch. 48, I Hen. 455.
125 Act of Mar. 13, 1658, ch. III, I Hen. 481. An act of Maryland of October 1654
provides that "Whatsoever person shall steale any friend Indian or Indians whatso-
ever or be accessary in Stealing them and shall sell him or them or transport them out
of the County shall be punished with death." I Md. Arch. 346.








Judicial Cases concerning Slavery


in case of complaint made, that any person hath transgressed this act the
truth thereof being proved such person shall return such Indian .within
ten days to the place from whence he was taken."
In March 1662 126 it is enacted that what Englishman, trader, or other
shall bring in any Indians as servants and shall assigned them over to any
other, shall not sell them as slaves, nor for any longer time than English
of the like ages should serve by act of assembly." This act of 1662 defi-
nitely fixes the status of Indians brought in as servants.127 They are to
be no worse off than the indentured English servants of the like ages."
The class of Indian servants received an accession to their ranks by the
act of 1670 2" which provided that Indian captives, sold to the English
by that nation that taketh them," should also be servants for a term,
though a much longer term than the Indian servants from friendly tribes.
Though the acts of 1676, 1679, and 1682 consigned such captives there-
after to slavery, the supply of servants of Indian blood was continued in a
steady stream, by acts of 1691 and of 1723. By the former the bastard
child of a white mother and an Indian father is to be bound out as a
servant until he shall attaine the age of thirty yearss" 129 By
the latter the bastard child of a white woman and an Indian (or a negro
or mulatto) had not only to pay for the sins of its parents by serving
thirty years, but the sins were visited on the next generation: "Where
any female mullatto,"13 or indian, by law obliged to serve till the age of
thirty or thirty-one years, shall during the time of her servitude, have any
child born of her body, every such child shall serve the master of
such mullatto or indian, until it shall attain the same age the mother of
such child was obliged by law to serve unto." lsl
The act of 1705 132 provided that if any woman servant shall have a
bastard child by a negro, or mulatto," 131 she shall for every such offence,
serve her master one whole year after her time shall be ex-
36 Act of Mar. 23, 1662, 2 Hen. 143. In the same month the assembly orders that
"the Indian boy deteined by Johnson either to be continued according to his desire
among the English or to return to the Indians," and that "Matappin a Powhatan Indian
being sold for life time to one Elizabeth Short by the king of Wainoake Indians who
had no power to sell him being of another nation, it is ordered that the said Indian be
free, he speaking perfectly the English tongue and desiring baptism." 2 Hen. 155.
127 Jefferson notes "that the Indians brought in by our traders, and sold as servants
under the act of 1662, are still out of that of 1682, whose basis is purely those of 1670
and 1679; The act of 1662, had never been touched." Robin v. Hardaway, Jefferson
iog (115 n.). The preamble of the act of 1670 shows that the chief object of the act
of 1670 was to improve the lot of Indians ("taken in war by any other nation, and by
that nation sold to the English") who would otherwise have been slaves. It has
nothing to do with Indians who were not in that category.
128 Act of Oct. 3, 167o, ch. 12, 2 Hen. 283.
129 3 Hen. 87. The act also applies to the bastard child of a white woman and a negro
or mulatto.
1o0 "The child of an Indian and the child, grand child, or great grand child, of a
negro shall be deemed .to be a mulatto." 3 Hen. 251.
11 4 Hen. 133.
132 Ch. 49, sect. 18, 3 Hen. 453.
13a 3 Hen. 251.








Virginia: Introduction


pired, or pay her said master one thousand pounds of tobacco." The
observations made on this subject by Judge Green, in 1831, in Gregory v.
Baugh, will be found in the record of that case on a later page.134
But not only was servitude for thirty years imposed by law (as a punish-
ment for "abominable mixture" of blood), but it was voluntarily con-
tracted for. In 1722 a complaint was made to the council, in Maryland,
against one Andrews for having sold or otherwise disposed of an Indian
Boy a Son of one of our Friend Indians." 135 Andrews
confesses that an Indian Boy named James did in Consideration of five
Pounds in hand paid a Horse Bridle and Saddle and two Suits of Cloaths,
indent to live with him the said Andrews as a Servant for the term of
thirty years and that he sold the said James to a Gentleman in Philadel-
phia for the sum of fifteen pounds, the said Andrews further says that
it is a Customary thing in Ackamack in Virginia for the Indians to work
among the Inhabitants and to indent with them for a Time or Term of years,
and that he had indented with the said James in Virginia not in Maryland.
The friendly or tributary Indian was always exempt from slavery within
the confines of Virginia, but the act of May 9, 1722,136 provided, in one
contingency, for his enslavement elsewhere: if any Indian tributary
to this government, shall presume to pass to the northward of Potow-
mack river, or to the westward of the great ridge of mountains, .every
Indian so offending, and .. convicted, shall suffer death, or be
transported to the West-Indies, there to be sold as slaves."

II.
To the student of the history and law of slavery those Virginia cases
are doubtless of greatest interest which deal with the evolution of negro
servitude and slavery, and with the rise and fall of Indian slavery; and
to the student of philanthropy those same cases make a special appeal
because they contain the opinions of judges 137 who, in a long line of
decisions, often stretched the laws of evidence and the interpretation of
statutes to relax the bonds of slavery. But there are other benefactors
of the African race, to whose philanthropy the Virginia reports bear
witness-the multitude of her citizens, high and low, from Chancellor
Wythe 13" and John Randolph of Roanoke 139 to those who were too illit-
erate to sign their names, 14 who, by the provision of their wills, sought to

134 P. 165, infra.
15 25 Md. Arch. 390.
136 4 Hen. 104.
137 And the arguments of counsel on which those opinions were generally based,
especially in the eighteenth century. "As the General Court delivered no written opin-
ions, and generally gave no reasons at all for their conclusions, there was nothing of a
case to be reported except the statement of it, and the arguments of counsel." R. T.
Barton, in his introduction to Virginia Colonial Decisions, I. 236.
138 Wythe xxxvii.
139 Coalter v. Bryan, I Grattan 18; p. 204, infra.
140 Walthall v. Robertson, 2 Leigh 189; p. 161, infra.









72 Judicial Cases concerning Slavery

ensure the comfort or freedom of their servitors. Such wills, which form
a large part of the following excerpts, need little comment.
An act of 1691 141 had provided "That no negro be set free
by any person unless such person pay for the transportation of
such negro out of the country within six months after." In 1710
the assembly freed the slave Will for "his fidelity" "in discovering a
conspiracy of diverse Negros for levying war in this colony," 142 and
in 1723 an act was passed,'4" providing That no negro, mullato, or indian
\ slaves, shall be set free, upon any pretence whatsoever, except for some
meritorious services, to be adjudged and allowed by the governor and
council, for the time being, and a licence thereupon first had and ob-
tained." 14 Emancipation by the assembly was reverted to in 1777, the
first year of the Commonwealth, to free the slave of John Barr, as "the
consent of the governor and council could not be procured, as required by
the laws then and still in force, occasioned by lord Dunmore (the then
governor) withdrawing from his government." 1' Other slaves were
emancipated by the assembly in 1779 14 and in 1780; .14 but a more liberal
policy in regard to emancipation was called for, and in May 1782 "An
act to authorize the manumission of slaves was passed."48 The quakers
had long been petitioning the legislature to pass" 1" such an act, and for

11 Ch. 16, 3 Hen. 87.
142 Act of October 171o, ch. 16, 3 Hen. 537.
143 Ch. 4, sect. 17, 4 Hen. 132.
144 In 1741, "Juidith Butts Wid'w .in her last Will enjoined her Execut'rs to
apply for Leave to sett free a female Slave named Lilly, aged Nineteen Years, .
on account of several very acceptable Services done by her for Said Judith; Ordered,
That Leave be granted to manumitt and Sett free the Said female Slave." Extract from
Virginia Council Journal, 15 Va. Mag. Hist. 130. Other permits were given in 1761 (16
Va. Mag. Hist. 140), and in 1766 (id., 153).
145 9 Hen. 320.
146 Kitt, for meritorious service "in making the first information .against several
persons concerned in counterfeiting money," Io Hen. 115. Three other slaves were
emancipated by the legislature a few months later, without mention of any meritorious
services rendered. Id. 211.
147 Id. 372.
148 Ch. 21, II Hen. 39. "That act was passed at the close of the revolutionary war,
when our councils were guided by some of our best and wisest men, men who looked
upon the existence of slavery among us not as a blessing but as a national misfortune,
and whose benevolence taught them to consider the slave not as property only, but as
man." [H. St. G. Tucker, president of the court.] Manns v. Givens, 7 Leigh 689
(709), 1836.
I The legislature continued to emancipate, even after emancipation by the owners of
slaves was authorized. In 1783 an act was passed which provided "That each slave,
who by the direction of his owner, hath enlisted in any regiment or corps raised
within this state, and hath been received as a substitute for any free person and
hath served faithfully or hath been discharged shall be. compleatly emanci-
Spated," whereas it appears just and reasonable that all persons enlisted" in this manner
who have thereby of course contributed towards the establishment of American
liberty and independence, should enjoy the blessings of freedom as a reward for their
toils and labours." Ii Hen. 308. In 1786, "as full freedom as if he had been born free"
was conferred on the slave James, who in 1781 "did with the permission of his master
S. enter into the service of the Marquis la Fayette, and at the peril of his life found
means to frequent the British camp, and thereby faithfully executed important commis-
sions entrusted to him by the marquis." 12 Hen. 380. In 1787 the general assembly car-
ried out "the benevolent intentions" of Charles Moorman, who made his will in 1778
(12 Hen. 613), and of Joseph Mayo, who made his will in 1780 (id., 611).
149 Charles v. Hunnicutt, 5 Call 311 (1804) ; p. xog, infra.








Virginia: Introduction


movie than a decade before its enactment alternative provisions are made
in the wills of testators desiring to free their slaves, looking to the
Possibility of such legislative action.150
In 1805 an act was passed which prohibited the emancipation of negroes
unless they left the state,'"' for the presence of free negroes was plainly
a menace to the peace of the community. Many wills thereafter, accord-
ingly, offer negroes the choice of remaining slaves or of leaving the
state; 152 and later when the project of colonizing free negroes in Liberia
met with favor, the choice is offered between Liberia and slavery.153
Herbert Elder (who died in 1826) willed that his negroes be given to
Gabriel Dissosway, in trust to be sent to Africa to the colony at Liberia,
provided the expense of sending them will be defrayed by the colonization
society Those of them who prefer staying, shall be given to my
brother John." 1"4 One of the slaves refused to accept his freedom on
the terms proposed, but all the rest declared that they preferred to accept
their freedom and go to Liberia, and the American Colonization Society
accepted the slaves on the terms proposed in the will.
It was not till 1858 that the principle of the slave's incapacity to influ-
ence his own destiny by making a choice between freedom and slavery
was enforced for the first time in Virginia. The will of John L. Poin-
dexter,155 who died in 1835, gave his negroes, after the death of his wife,
"their choice of being emancipated or sold publicly." The circuit court
held, in 1855, that the negroes were absolutely free at the death of
the life tenant, and that it was not proper or necessary to put said slaves
to their election." But the Court of Appeals, by a majority of three to
two, reversed the judgment: "the provisions of the will respecting the
manumission of the slaves, are not such as are authorized by law and are
void." Judge Moncure, in his dissenting opinion, exclaims: "A master
may emancipate his slaves against their consent. Why may he not make
such consent the condition of emancipation? It is as competent for a
slave emancipated on condition that he elects to be free, to make such
election, as it is for a slave absolutely emancipated to propound the
deed or will for probate, appeal from the sentence, or sue for his freedom."
150 See the wills (1771, 1776) in Pleasants v. Pleasants, p. 105, infra, that of Joseph
Mayo (1780) in Mayo v. Carrington, p. 98, and that of Gloister Hunnicutt (1781) in
Charles v. Hunnicutt, p. iog. See also Judge St. George Tucker's pamphlet, Dissertation
on Slavery, with a Proposal for its Gradual Abolition in Virginia (Philadelphia, 1796),
reprinted as Note H. in the appendix to vol. II. of his ed. of Blackstone.
151 1 Rev. Code, ch. III, sects. 53, 61, 62. Even before the passage of this act, John
Payton, by his will in 18l0, emancipated his slaves, at various ages, and "devised Iooo
acres of land in the western country" for their use. Of course he may have intended
this land to produce income for them, not that they should migrate to it. Nicholas v.
Burruss, p. 172, infra.
162 Savage's will (1836) in Forward v. Thamer, p. 225, infra, Vass's will (1831) in
Young v. Vass, p. 233.
153 See Maund's will (1829) in Maund v. McPhail, p. 193, infra, Dawson's will (1833)
in Dawson v. Dawson, p. 196, and Binford's will, in Binford v. Robin, p. 206.
154 Elder v. Elder, p. 171, infra.
155 Bailey v. Poindexter, p. 243, infra.








Judicial Cases concerning Slavery


At the May term of the same year, Judge Moncure was again in the
minority. Mrs. Hannah H. Coalter 156 had willed (1857) that her negroes
"be manumitted on the Ist day of January 1858 my executors to
ascertain what fund will be sufficient to provide the usual outfit for, and
to remove, said negroes to Liberia, and to use the said fund in remov-
ing and settling my said servants in Liberia, or any other free state or
country in which they may elect to live, the adults selecting for themselves,
and the parents for the infant children; and if any prefer to
remain in Virginia, it is my desire that they shall be permitted .. to
select among my relations their respective owners." Her estate "was
ample to carry out the provisions of her will in regard to the removal and
settlement of her [ninety-three] negroes in Liberia or a free state." The
lower court held that the negroes were emancipated by the will, unless
they chose to remain slaves; And that this condition of freedom was
independent altogether of the removal of said negroes from Virginia, said
removal being a condition subsequent to said emancipation." The decree
was reversed, in accordance with the decision in Bailey v. Poindexter.
But Judge Moncure contended that the negroes in this case are entitled to
their freedom, even conceding that the former case was rightly decided.
. I still think it was not rightly decided; and I would now be willing to
overrule it, if it were like this case."
These cases were overruled in 1896, by Jones v. Jones.s15 The will of
Philip H. Jones, who died in 1856, provided that his negro man Bob
"shall have the privilege of accepting his freedom at any period of his
life, but to remain with my brother and to labor as a slave as long as he
stays in the State." The Court of Appeals held that the testator did
emancipate his slave Bob, and that the subsequent provisions of his will,
by which he sought to create for him a condition intermediate between
freedom and slavery, if he refused to accept his freedom, were void, and
in no wise affected the bequest of freedom."
A knotty question of vast importance in the law of slavery was settled
in 1824 in the leading case of Maria v. Surbaugh,58 which was hence-
forth followed in all the slaveholding states.1'" In 1790 William Holliday
" bequeaths his slave Mary to his son William, with a declaration, that she
shall be free as soon as she arrives at the age of thirty-one years." She
passed by sale to various persons, finally coming with her infant child
Maria under the ownership of Surbaugh. She had three other children
before she reached the age of thirty-one, and after she reached that age,
Mary brought an action for freedom, in forma pauperis, for herself and
in behalf of her four children. The lower court gave judgment for Mary,
156 Williamson v. Coalter, p. 246, infra.
157 92 Va. 590.
158 P. 138, infra.
159 Followed in Delaware in 1833, in Jones v. Wooten (I Harr. Del. 77), but overruled
in 1849, in Elliott v. Twilley (5 Harr. 192).








Virginia: Introduction


but held that the children were not entitled to their freedom. The Court
of Appeals affirmed the judgment.1 0
One of the Virginia wills offers a maternity prize. John Guthrie pro-
vides in 1761: "if Jeany brings ten live children that she shall be at her
one [sic] liberty." 1'1 Another Jenny received such a prize by the deed of
B. Talbert in 1803, thus fulfilling his promise to her, when he bought
her, that when she should have a child for every one of his, (he then
having five) he would set her free." 182

III.
The Virginian courts before which the following cases were tried were
the General Court, the Court of Chancery, and the Court of Appeals.
During the colonial period the General Court consisted of the governor
and council, meeting quarterly in judicial session. It was the highest dis-
tinctively judicial body in the province, but for some years in the earliest
period the general assembly had jurisdiction concurrent with that of this
quarterly court and criminal cases involving life or member were tried in
whichever convened first. In 1641 the civil jurisdiction of the assembly
was limited mainly to appellate cases; after 1682 appeals to the assembly
were discontinued by royal order.
By the constitution of 1776 the two houses of the assembly were em-
powered to appoint judges for the Supreme Court of Appeals, the General
Court, and judges in chancery and admiralty. Admiralty judges had
already been appointed in 1775, but their jurisdiction of course ceased in
1789, vesting thenceforward in the federal courts. Acts of 1777 organized
the General Court, of five judges, and the High Court of Chancery, of
three, and an act of 1778 provided for the Court of Appeals, which was to
consist of three judges peculiar to that court, together with, in different
cases, the judges of the General Court or of the courts of chancery or
admiralty. The General Court and the High Court of Chancery continued
to exist till the adoption of the constitution of 1830.
That constitution vested the judicial power of the state in a Supreme
Court of Appeals and such superior courts as the legislature might estab-
lish (circuit and district courts). The constitution of 1850 made similar
provisions. The Supreme Court of Appeals was to consist of five judges,
and to have appellate jurisdiction only, except in cases of habeas corpus,
mandamus, and prohibition. By the constitution of 1864 the number of
its judges was to be three, that of 1870 restored it to five. Though a few
of the cases which follow were tried in federal courts, nearly all of those
subsequent in date to 1830 were cases before the Court of Appeals.
16xIThe Virginia Code of 1849, however, provides: "The increase of any female so
emancipated by deed or will hereafter made, born between the death of the testator, or
the record of the deed, and the time when her right to the enjoyment of her freedom
arrives, shall also be free at that time, unless the will or deed otherwise provides."
Ch. 103, sect. 1o, p. 458.
161 Fairclaim v. Guthrie, p. 103, infra.
162 Talbert v. Jenny, 6 Randolph 159 (1828) ; p. 151, infra.














VIRGINIA CASES.
Re Tuchinge, Minutes of the Council, ed. Mcllwaine, 33. November
1624. "John Phillip A negro Christened in England 12 yeers since,
sworne and exam. 1 sayeth, that being in a ship with Sir Henry Mane-
ringe, they tooke A spanish shipp about Cape Set Mary, and Caryed
her to mamora."
Re Negro Brase, Mcllwaine 66, July 1625. "William Barnes .
sayth, that Capt. John Powell 2 shipped him at the Ile of Wight in the
good Shipp called the black Bess of Flushinge A man of warr,
. they coasted to and again about the west Inges to meete with some
pryse. And they took A Friggett divers of the Compeny .
[67] resolved for to shipp themselves in the Frygett And they desired
Capt. Jonnes s to goe with them to be their Capt. and m'r .at last mett
with this Friggett uppon the coast of Cooba And .tooke that
frigett alonnge with them." Andrew Poe testified that they [68] after-
wards lighted uppon a Spanish frigott and they gave them their first
frygott taking out of her [the Spanish frigate] some Raw hides and some
Tobacco and a negro and a Frenchman who were desirous to goe along
with them, and a Portugall to be their Pilott came directly for
Virginia, where they Arrived the Eleventh of July 1625."
[71] A Courte held the XIXth daye of September 1625 ordered
that Capt. Bass shall deliver some Cloaths to the Portugall owt of
Capt. Jonnes his chest which is to be satisfied owt of the negroes
labour. .. [72] that the negro that cam in with Capt. Jones shall re-
maine with the La: Yardley till further order be taken for him and that
he shalbe allowed by the Lady Yardley monthly for his labor forty
pownd weight of good marchantable tobacco for his labor and service
so long as he remayneth with her." A Courte held the third daye of
October 1625, [73] Yt is ordered the negro called by the name of
brase shall belong to Sir Francis Wyatt Governor etc., As his servant,
Notwithstandinge any sale by Capt. Jonnes to Capt Bass, or any other
chaleng by the ships company."
Re Carib Indians, Mcllwaine 155, October 1627. "The Court having
taken into their consideration the danger which might ensew to the
Colony by those Indians of the Carib Ilands which were lately brought
into the Country by Capt. Sampson, and having admonished the said

1 Testimony of a negro in the trial of a white man.
2" Capt. Powell had commanded one of the ships which brought the first negroes to
Virginia 'a Dutch man-of-war.'" 24 Va. Mag. Hist. 56, n. I.
S" Capt. Jones had commanded the Mayflower in its famous voyage to Plymouth."
Ibid.
4" Of Holte in Northfolke shipt in Flushinge." McIlw. 68.
S" Brass was taken in at the West Indies, by one Captain Jones, to assist in working
his vessel hither." Jefferson 119 n.








Virginia Cases


Capt. Sampson to consider with himself what profit he could make by the
said Indians, and to devise with himself soe to dispose of them, as they
may prove noe discommoditie to the Colonie, Sampson hath returned
his answere-that he knoweth noe way to dispose of those Indians
but deliverethe them wholy upp into our hands and being given
to understand that the said Indians have runn away and hid them-
selves in the woods attempting to goe to the Indians of this Country as
some of them have revealed and confessed, And for that they have stollen
away divers goods, and attempted to kill some of our people And for
that especially they may hereafter be a means to overthrow the whole
Colony, have adjudged them to be presently taken and hanged till they
be dead."
Re Indian, Mcllwaine 116, October 1626. "At this Court there was
a Weanoke Indian presented by Captaine William Epps which was taken
the last spring at Sherley-Hundred and hath since been with him and
the Court hath ordered that Capt. Epps doe enter into bonds of 500 1. of
tobacco that the said Indian shall not runne away; that Capt. Epps
upon his return to James Citty bring the Indian along with him to
the Governor to be employed uppon any service: And the Court graunt
that Capt. Epps at his going for England the next spring, may carry the
said Indian with him, otherwise to deliver him upp to the Governor."
Re Davis, McIlwaine 479, September 1630. "Hugh Davis to be
soundly whipt before an assembly of negroes and others for abusing
himself to the dishonor of God and shame of Christianity by defiling his
body in lying with a negro, which fault he is to actk. next sabbath day."
Re Negro John Punch, Mcllwaine 466, July 1640. "Whereas Hugh
Gwyn hath Brought back from Maryland three servants formerly run
away the court doth therefore order that the said three servants shall
receive the punishment of whipping and to have thirty stripes apiece one
called Victor, a dutchman, the other a Scotchman called James Gregory,
shall first serve out their times with their master according to their In-
dentures, and one whole year apiece after the time of their service is
Expired and after that service to serve the colony for three whole
years apiece, and that the third being a negro named John Punch shall
serve his said master or his assigns for the time of his natural Life here
or elsewhere."
Re Negro Emanuel, Mcllwaine 467, July 1640. "complaint .by
Capt. Wm. Pierce, Esqr. that six of his servants and a negro of Mr. Regi-
nolds has plotted to run away unto the Dutch plantation and did assay
to put the same in Execution." They "had taken the skiff of .
Pierce and corn, powder and shot and guns, which said persons
sailed down to Elizabeth river where they were taken order that
. Emanuel the Negro to receive thirty stripes and to be burnt in the
cheek with the letter R, and to work in shakle one year or more as his
master shall see cause." 1
1 Such also was the penalty inflicted on "Miller a dutchman (a prime agent in the
business)," plus seven years' service to the colony after the expiration of his service due
his master. Somewhat lighter penalties were inflicted on the others.








Judicial Cases concerning Slavery


Re Sweat, Mcllwaine 477,1 October 1640. "Whereas Robert Sweat
hath begotten with child a negro woman servant belonging unto Lieutenant
Sheppard, the court hath therefore ordered that the said negro woman
shall be whipt at the whipping post and the said Sweat shall tomorrow in
the forenoon do public penance for his offence at James city church in the
time of devine service according to the laws of England in that case
provided."
Re Graweere,2 Mcllwaine 477, March 1641. "Whereas it appeareth
to the court that John Graweere [?] being a negro servant unto William
Evans was permitted by his said master to keep hogs and make the best
benefit thereof to himself provided that the said Evans might have half
the increase which was accordingly rendered unto him by the said negro
and the other half reserved for his own benefit: And whereas the said
negro having a young child of a negro woman belonging to Lieut. Robert
Sheppard which he desired should be made a christian and be [brought up
in the fear of God and in the knowledge of religion]3 taught and exercised
in the church of England, by reason whereof he the said negro did for
his said child purchase its freedom of Lieut. [Robert] Sheppard with the
good liking and consent of Tho: Gooman's 4 overseer, as by the deposition
of the said Sheppard and Evans appeareth, the court hath therefore
ordered that the child shall be free from the said Evans or his assigns and
to be and remain at the disposing and education of the said Graweere
and the child's godfather, who undertaketh to see it brought up in the
christian religion as aforesaid."
Re Mulatto, Mcllwaine 504, March 1656. "Mulatto held to be a
slave and appeal taken."
Re Warwick, Mcllwaine 513, April 1669. "Hannah Warwick's case
extenuated because she was overseen by a negro overseer."
Re Gowin, Mcllwaine 233, October 1670. It is ordered that Gowin
an Indian Servt. to Mr. Tho. Bushrod Serve his said master six years
longer and then to be free."
Jordan v. Scarburgh, Mcllwaine 239, October 1670. "Judgmt. .
agt. Mr. Edmond Scarburgh for paym't of two able men Servants to have
each of them four years at least to Serve or the customer of the Country
. and Scarburgh to Enjoy the Negro man this being the full considera-
tion of Scarburgs obligation for four Servants with costs als exec."
Hunt v. Monger, Mcllwaine 240, October 1670. orders obteyned by
Mr. Thomas Hunt for five Thousand pounds of Tob'o and Caske
paid to Adams for a Negroe called Malack who was afterwards
Set free by the said Adams by will." Reversed, September 1671.'
Bacon v. Swan, McIlwaine 276, September 1671. Coll. Nath Bacon
Guardian .Sueing .for fourteene Cropps of Corne and Tob'o made
1 See also ibid., 483.
2 Geaween" in II Va. Mag. Hist. 281.
SIbid.
SJno: Graweere's?
5 McIlw. 277.








Virginia Cases 79

by the said orphants [English '] Servants and a negroe weoman." The
[277] negro weoman was confest to be produced out of 2 part of
the Said Cropps. It is ordered that the said Exec'rs forthwith deliver the
said negroe weoman with her Cropps." Confirmed, November 1671.
Negro Mozingo v. Stone, McIlwaine 316, October 1672. "Whereas
it Appeareth by Divers Witnesses that Edward Mozingo a Negro
man had been and was an apprentice by Indenture to Coll. Jno. Walker
and that by Computation his term of Servitude for Twenty Eight years
is now Expired, The Court after a full hearing of the Matter In differ-
rence Betweene the Said Edw: Mozingo and Doctor Stone who married
Coll. Walkers Widdow, It is Adjudged .that the said Edw: Mozingo
be and Remayne free to all Intents and purposes."
Re Negro Will, Mcllwaine 346, June 1673. Whereas Will a Runaway
Negroe Suspected to have Lett out of Prison a Negroe Condemned the
last Court and Confesseth that he did See the Negroe break Loose out'
of irons and did Attempt to break out of the fore Doore of the Prison
and that he see a Negroe Breake Open the back doore and Lett the said
Negroe out of Prison and further that he hath been Twice in the Con-
demned Negroes Company, ordered that the said Negroe be
Comitted to the Common Prison of James Citty till further order and if
the sherriffe think fitt to take the said Negroe Will along with him for
the better Discovery for finding the said Condemned Negroe." Ordered,
July 1673, [347] "that Will a Negroe Slave to Mr. Robt. Bryan of
Gloster County Discharge his prison and have to morrow morning
A Good and well laid on whipping, and putt into the Constables hands of
James Citty who is to convey him to the Next Constable 3 and Soe from
Constable to Constable till he be Delivered to his said master .And it
is further ordered that the said Bryan pay unto .high Sherriff of this
County One Thousand pound of tobacco and Caske for Charges and
fees." 4
Moore v. Light, McIlwaine 354, October 1673. "Whereas Andrew
Moore A Servant Negro to Mr. Geo: Light Doth in Court make Appeare
by Several others that he Come into this County [Country] but for five
year, .ordered that the Said Moore bee free from his said master,
and that the Said Mr. Light pay him Core and Clothes According to the
customer of the Country and Four hundred Pounds tob'o and Caske for
his service Done him Since he was free, and pay Costs."
SRe Negro Will, Mcllwaine 367,5 April 1674. ordered that the order
. Kirkman High Sherriffe of James Citty County had Against Mr.
Robt. Brian for payment of one Thousand pound of tobo and Caske for
Charges and fees about his Negroe be taken off, And it is the opinion of
this Court, that he the Said Mr. Kirkman ought to be paid by the pub-
lique."
1 McIlw. 289.
2 To have produced "?
3 Act of October 1670. 2 Hening 277.
4 See McIlw. 367 (1674), infra.
5 See ibid., 346 (1673), supra.








Judicial Cases concerning Slavery


West v. Negro Mary, Mcllwaine 372, April 1674. "Upon the Petition
of Capt. John West Concerning A negro woman called black mary
purchased by the Said Administrators from Coll. John Vassall, It is
ordered that the Said negroe woman return to her Service, And that
the Administrators [373] with the first opportunity take Care to
write to Coll. Vassall to know whether the Said negroe woman was A
Slave or free, and if Appeare she was noe slave when bought, then they
to pay her for her Service what this Court shall Adjudge."
West v. Wilson, McIlwaine 372, April 1674. "Lt. Coll. Jno West
hath Judgment Against the personal Estate of Arnall In the hands
of the [said] Wilson for payment of Two Thousand one hundred Sixty
Six pound of tobacco and Caske Nine hundred pound of Muscavado
Sugar and one able man Negro." In September 1674, [382] Execution
Issued and the Sherriff having Seized Three negroes Claimed by the
Said Wilson to be his, this Court Doth Adjudge the Seizure to be Good,
uppon the offer of the Said West that the Said Three negroes be
Returned uppon payment of what they are Appraized at with Costs."
Re Negro John, Mcllwaine 382, September 1674. "Whereas [six
English] Servants and Jno. a negroe Servant hath Run away
and Absented themselves from their masters Two months It is or-
dered that the Sherriffe take Care that all of them be whipped .
and Each of them have thirty nine lashes well played on And the English-
men Serve According to Act for their Runing away, And that Amongst
[them] they Serve the Honorable Governor Two years for Ja:-(who
was his Honors Servt) which they Lost." 2
Major v. Marsh, McIlwaine 401, March 1675. Claime .Against
the Estate of Clement Marsh Deceased for Sixteene pounds Tenn shilling
and Six pence, for which the said Marsh bound over Certaine Negroes."
Negro Phillip Gowen v. Lucas, McIlwaine 411, June 1675. Phillip
Gowen negro Suing Mr Jno Lucas for his freedom It is Ordered that
the said Phill Gowen be free from the Said Mr Lucas his Service and that
the Indenture Acknowledg'd in Warwick County be Invallid and that the
said Mr Lucas pay unto the [said] Gowen three Barrels of Corne att the
Cropp According to the Will of Mrs Amye Boazlye deceased with Costs."
Negro Angell v. Mathews, Mcllwaine 413, June 1675. Angell a negro
Servant to Capt Mathews deced Petitioning to this Court that her Said
master promised that when he died shee should be free which being Ex-
amined, It is ordered that she Returne to her Service."
xAct of March 1662. 2 Hening 116.
2 The act provides that in case any English servant shall run away in company of any
negroes who are incapable of making satisfaction by addition of a time, if the negroes
be lost the christian servants in company with them shall by proportion among
them, either pay fower thousand five hundred pounds of tobacco and caske or fower
years service for every negroe soe lost." As, in the foregoing case, the English ser-
vants are to serve only two years for "Ja: (who was his Honors Servt)" and as
"Ja: ." evidently had a surname, which "Jno a negroe Servant" lacked, "Ja: ."
was probably an English servant, for whose loss, though unprovided for by the act,
the court ordered additional service by his fellow runaways.








Virginia Cases


Shapleigh v. Neale, Mcllwaine 416, June 1675. "Ordered that .
Shapleigh Enjoy the Land till the Cropp be finished, as also the negroes
till the Cropp be finished, at which time Neale is to have Possession
of the Said Land and negroes mentioned in that Deed and that County
Court to Allow Neale Satisfaction for his Negroes Worke from the
date of their Judgment."
Indian Benjamin v. Dunn, Mcllwaine 425, October 1675. "Ordered
that Benj: the Indian Returne to his Service and that Cha: Dunn his
master Appeare at Next Gennll Court to Answer to Said Indians Com-
plaint."
Negro Bowse v. Bennett, Mcllwaine 437, March 1676. Tony Bowze
Negro late Servt to Major Gennll Bennett Deceased Petitioning to this
Court for his freedom, and producing a note under his said Masters
hand wherein it Appeareing that he is to pay 800 li. of tobacco yearely and
be at Liberty Ordered that the Said Negro Give Security for
payment of 800 lb. per Annum during his life from his masters decease
and that he yearely give Security and payment of the same."
Re Negroes, Mcllwaine 519, September 1678. Proceeding for bring-
ing more negroes from Africa than ought to have been brought under
contract." 1
Re Negro, Mcllwaine 520, November 1678. Master having declared
before his death that negro should be free, freedom declared."
Opinion of John Holloway, Barradall 29, March 1718. I. A. makes
a Will and gives a Mulatto Wench thus. I will that my Mulatto Girl Sue
remain with my Wife B. during her natural Life and after her Decease I
give her to my Son C. and appoints B. and C. Ex'rs and makes them
Residuary Legatees. B. lives a long Time and Sue during her Life had 8
Children which B. by her Will has disposed of. Q'r Ist. Whether C. has
any Right to the Mulatto Girl seeing no pres't Interest in him? "
Opinion [27] I am of Opinion C. has good Right to the Mulatto Girl
by this Devise."
2d. Whether B. had a Right to the Issue of Sue or any Part of them?"
Opinion: I am of Opinion (the Son not having the immediate Prop-
erty in the Mulatto Girl thb' I think a future Interest vested in him by
Way of Executory Devise) that the Property of the Children as they
were severally born did vest in the Wife and Son jointly as Coex'rs and
Residuary Legatees because it must immediately vest in somebody, It not
being disposed of by the Testor. Then I think as joint'ts and no division
made, the Survivor hath by Virg'a Law 1705 Right to 'em all. If they
did not vest in them both as coex'rs and Residuary Legatees I think they
must vest in the Son there being in my Opinion no Colour for the Testor's
Intent or the Law by Implication or other Rule to vest them in the
Wife except as Coex'r etc."

1 [521] Genl Court Bonds etc 1677 to 1682." [494] Showing the importation of
negroes under contract with the Royal african Company dated the 4th of Octo 1678."
Also McIlw. 521.








Judicial Cases concerning Slavery


Abbot v. Abbot, Rand. Sir J. 21, October 1729. Trover for several
negroes."
Churchill v. Blackburn, Rand. Sir J. 26, April 1730. Thomas Machen
a teller under this Act [of General Assembly begun and held on the
qth of May 1723 1] Exhibits an Information against Mr. Churchill for
500oowt of Tobacco forfeited by the first Branch of the Act for Listing
Doll as a Tithable when she was under 16. And upon that Information
has obtained a Verd't and Judgm't in the County Court.2 Blackburn the
Pit. Exhibits another Information upon the last Clause for 24000wt of
Tob'o being 500wt of Tob'o for every Person above Io years upon the
Defendt's Plantation in that year for Listing the same Negr. Doll as a
Tithable when she was under 16, and upon that Information has obtained
a Verd't and Judgment in the County Court for 6500wt Tobacco. This
Judgment Mr. Churchill has appealed from and surely it shall be reversed.
The only Question is Whether the Deft. shall be Subject to the Penalty
of 5oowts of Tobacco upon the Information of Machen and to this much
greater Penalty of 500wts of Tobacco for 48 Persons above Io years old
Employed that year upon his Plantation upon the Information of the Plt.
for the same offence viz. Listing Negro Doll as a Tithable. [27] The
plain meaning of the two Clauses taken together is this, If a Master List
any Person a Tithable that is under 16, or one above Io, that is not so,
or a Labourer in the Crop who is not Employed in it he forfeits 50owt. of
Tob'o. And if he gives an Account of Persons as employed upon his
Plantation in making Tob'o that are not employed at all upon that Plan-
tation or perhaps are not in being, then he is Subjected to the great Penalty
of 500oowt of Tobacco for every Person above Io years old Employed in
making Tob'o that year upon such Plantation. [29] This Judgment
is absurd and against Common Sense, and can't possibly be affirmed in this
Court, and I pray that it may be reversed.3 And it was reversed by the
whole Court except one."
Churchill v. Machen, Rand. Sir J. 30, April 1730. The Deft. has
likewise Appealed from Judgment given upon the Information of Machen
upon the Act of Assembly ment'd in the Case above. The Information
Charges That the Deft. being Master of a Family and a House-keeper,
When he gave in his List of Tithables Anno 1725 did List with Roger
Jones the Justice appointed to take the List of Tithables in that year one
Female Negro called Doll, being under the age of 16 years as a Tithable
ag't the Form of a certain Act of General Assembly of May 1723. .
But the Judgm't was affirmed."
Marston v. Parrish, Rand. Sir J. 35,4 April 1730. "John Williams
was possessed of two Negro Boys Arther and Bill and two Negro Women
1 Rand. Sir J. 30.
2 Affirmed. Churchill v. Machen, infra.
8 As the General Court delivered no written opinions, and generally gave no reasons
at all for their conclusions, there was nothing of a case to be reported except the state-
ment of it, and the arguments of counsel. In the cases reported by Randolph he gives
his own arguments in full, and only occasionally a statement of the points made by his
adversary." I Barton 236.
4 Jefferson I.







Virginia Cases 83

Dinah and Nanny and made his last Will 22d April 1713. Willed his
Negroes and all other Goods and Chattels to be valued and Appraised and
equally divided between his Wife and 3 Children, and that his Wife should
keep his Childrens Estates till they came of age and died soon after
making his Will. After his death the Negro Woman Nanny had two
Children, Obey and James, and the Negro Woman Dinah had a Child
named Essex. Anthany the Widow married John Marston who supposing
his Wife to be with Child, by his Will dated the first day of December
1719 Devised these Negroes viz, Arther, Will, Nancey, Essex, Obey and
James to the Child his Wife was ensient of, and gave all the residue of
his Estate Real and Personal to his Wife and her Heirs for ever, paying
his Debts and the Orphans Estates in his Hands and died soon afterwards,
but his Wife did not prove with Child and the Widow is married to her 3d
Husband Parrish the Deft. and none of Williams Children are of age.
And the Pit. as Heir at Law to Marston the 2d Husband hath brought
an Action of Detinue for Arthur, Will, Essex, Obey and James which
are properly Williams's Estate and for Nancey which was Marston's
proper Estate."
Held: [36] "the Plt. had no Right to recover the five Negroes that
were Williams's, And, that the Pit. should recover the Negro that was
Marstons as his Heir at Law."
Edmonds v. Hughs, Rand. Sir J. 36,' April 1730. Richard Alderson
was possessed of several Negroes in the Decl. mentioned and made his
last Will and Testam't in these words (dated I6th Sep'r 1695) 'My Will
that Margaret my Wife shall be Sole possessor and disposer of all and
every part of what Estate it hath pleased Almighty God to endue me
withal, during her Life, providing she keep herself unmarried, or in Case
she do marry again, that she nor her Husband, or any Person or Persons
in their behalf by any means or Instrum'ts to Imbezel or make waste of
the s'd Estate to any Indemnity to my Children.' Then by another Clause
he gives his whole Estate Chatel and Chatels to his Son Richard, please
God he lives etc. Margaret after her Husbands death married the Plt.
who left her and carried off several of the Slaves and as it is say'd
marryed one of them and has several Children by her. Margaret died
and Richard Alderson the Son took the Negro's in the Decl. mentioned
and sold them to the Defend't. And the Question will be Whether the
Rem'r of Negroes which are at the time of the Testors death Chattels
(first given to Margaret for Life) be a good Rem'r to Richard [39]
Adjudged for the Deft."
Tucker v. Sweney, Rand. Sir J. 39,2 April 1730. Mr. Dandridge
recovered Judgm't against the Ex'rs of Nicholas Curie for 507 1. Curle
died possessed of several Slaves and of these Slaves after his death there
was a considerable Increase. Mr. Dandridge took out a Fi. Fa. which was
served upon several of the Slaves which Curie died possessed of and like-
wise upon several of the Negroes born after his death And the Question
1 Also Jefferson 2.
2 Jefferson 5.
7








Judicial Cases concerning Slavery


is Whether the Increase of the Negroes may be taken to satisfy this
Judgment."
Held: Negroes notwithstanding the Act making them Real Estate
remain in the Hands of the Ex'ors by that Act as Chatels and as such do
vest in them for payment of Debts So that in this Case they are considered
no otherwise than Horses or Cattle, And there is no doubt but the Increase
of any living Creature after the death of the Testor, are looked upon as
part of his Estate, and are liable to be taken for his Debts."
Waddy v. Sturman, Rand. Sir J. 6i,' October 1731. "John Jordan
being possessed of a very Considerable personal Estate sufficient to pay all
his Debts with an overplus by his last Will and Testament in writing bear-
ing date the 6th Day of Februery in the Year 1693, gives several Legacies
to his Sons in Law John Spence and Thomas Spence (who were Brothers)
in this manner, 'I give to my Son John Spence 25 Ste'g to be laid out in
Negroes to be delivered to him upon the Day of his Marriage also 4 cows
etc. Item I give to my Son Thomas Spence Two Negroes Mingo and
Pegy to be delivered at the Day of Marriage and ten Head of Cattle etc.
But my Will is, that if the s'd John or Thomas should die without Issue,
that then whatsoever is Bequeathed to them the Survivor shall have to
him and his Heirs and Assigns.' The two Negroes were delivered to
Thomas by Dorcas Jordan the Testors Wife and Exec'x, and he possessed
them during his Life and died with't Issue in the Life time of John who
had the Negroes in possession and died leaving only one Child (the Compl't
Waddys Wife). After John Spences death Dorcas Jordan brought an
Action of Trespass in the General Court ag't Laurence Pope and his Wife,
who was the widow of John Spence, for recovering Mingo and Pegy and
a Child that was born of her And obtained a Judgm't Accordingly the 23
October, 1700, ag't the Defts. The Compl't Jane being at that time ab't
2 Years old. After the Judgm't the Negroes were taken by Execution and
Sold or disposed of by Dorcas Jordan and are now with their Increase in
the Possession of a Person in Maryland. And the Compl'ts have exhibited
their Bill ag't the Defts. Ex'ors of the last Will and Testam't of John
Spence and the Surviving Ex'or of Dorcas Jordan, And the End of the
Bill is to recover the value of these Negroes with Interest out of the
Estate of Dorcas which came to the Hands of the Defts. Testor."
Held: [62] "The Rem'r was good and vested in John when he Sur-
vived Thomas."
Barret v. Gibson, Rand. Sir J. 70, October 1731. "the Deft. was
keeper of a Rolling-house and did receive 4 Hhds Tob'o of the Plt.
and that the Rolling-house was maliciously burnt by a Negro Woman of
the Defts. whereof she was Convicted and Executed for it [72]
the Court gave Judgm't for the Deft. because the Master is not Chargeable
for the wilful wrong of his Servant."
Waughop v. Tate, Rand. Sir J. 76, October 1731. "John Contancean
an Infant by Deed dated the I7th Dec'r 1718, Conveyed several Negroes
to Richard Ball The Heir at Law of John possessed herself of the
Negroes and under Waughop Claims"
1 Jefferson 5.




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