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slaves are in France. Consequently this kind of slavery is not liable to the principal objections, which occur against slavery in general(q). Upon the whole of this controversy concerning

(4) Some writers there are, who deduce the lawfulness of domestic slavery from the praetice of it amongst the Jews, and from some passages in the Old Testament which are thought to countenance it. See Vinn. in Instit. Heinecc. ed. J. 1, t. 3, p. 31. There are others who attempt to justify slavery by the New Testament, because it contains no direct precepts against it. See Tayl. Elem. Civ. L. 434. I shall not attempt to examine either of these opinions. Hargrave.

slavery, I think myself warranted in saying, that the justice and lawfulness of every species of it, as it is generally constituted, except the limited one founded on the commission of

thronghout all the land, to all the inhabitants 'thereof.' Lev. xxv. 8-10.

"The manumission of the Hebrew slave on the seventh year, was provided for by the other law. Under the expression, therefore, of all the inhabitants, foreign slaves must be comprehended; for none but foreign slaves could remain to be manumitted in the fiftieth year.

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My lords, there is a circumstance not touched upon by my rev. brother; but there is a passage in the law, which I have always considered, as a strong argument of the lenity, with which slaves were treated among the Jews, and of the efficacy of the provisions the law had made, to obviate the wrongs and inju

In the discussions respecting the African slave trade, which were maintained during several years preceding the abolition of that traffic (by stat. 46 Geo. 3, c. 52, see also c. 119, and 51 G. 3, c. 23), the authority of theries to which the condition is obnoxious.—My scriptures was appealed to by the oppugners lords, I am afraid I cannot, by memory, refer and defenders of the trade. On June 24, 1806, exactly to the place. But the noble earl there, the learned and eloquent Dr. Horsley, bishop with his Bible, I am sure will have the goodof St. Asaph, delivered in the House of Lords ness to help me out and turn up the passage upon the subject, a very powerful speech, from for me. My lords, it is a passage, in which which I have extracted the following passages. the law provides for the case, of a slave, who "My rev. brother" (the bishop of London) should be so attached to his master, that when "told your lordships, that perpetual slavery the term of manumission, fixed by the law was not permitted by the Jewish law. That a should arrive, the slave should be disinclined native Jew could be held in slavery for seven to take advantage of it, and wish to remain years only, at the longest. For he had a right with his master. And the law prescribes the to his freedom upon the first return of the sab- form, in such case to be used, by which the batical year. And that a foreign slave pur- master and the slave should reciprocally bind chased in the market, or captivated in war, themselves, the slave to remain with his master could be held in slavery for fifty years only, at for life, and the master to maintain him. This the longest. For the foreign slave had a right I have always considered as a strong indication to his freedom upon the first return of the year of the kindness, with which slaves were treated of Jubilee. And from these premises, my rev. among the Jews; else whence should arise that brother concluded, that perpetual slavery was attachment, which this law supposes?" [Query unknown among the Jews. if the bishop had in his mind the beginning of the 21st chapter of Exodus, if so, the words 'he shall serve him for ever."]

"I confess, I was carried away by the fair appearance of my rev. brother's arguments, till, to my great surprise and bis utter confusion, the noble earl (of Westmoreland) rose, with his Bible in his hand, and quoted chapter and verse against him!

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"My lords, with respect to the native Hebrew slave, we have this law, which was quoted by my rev. brother: If thy brother, an Hebrew man, or, an Hebrew woman, be sold unto thee, and serve thee six years, then ' in the seventh thou shalt let him go free from thee. And when thou sendest him out free from thee, thou shalt not let him go away empty. Thou shalt furnish him liberally out of thy flock, and out of thy flour, and out of thy wine-press. Of that wherewith the Lord thy God hath blessed thee, thou shalt ' give unto him.' Deut. xv. 12—14.

"And with respect to the foreigu slave, we have this law, quoted likewise by my rev. brother: Thou shalt number unto thee seven sabbaths of years, forty and nine years. Then shalt thou cause the trumpet of the jubilee to sound throughout all the land. And ye shall • hallow the fiftieth year, and proclaim liberty

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"But we are all in the wrong, it seems-my rev. brother and I-we reason from specious premises, but to false conclusions. The noble earl has produced to your lordships a passagein the Levitical Jaw, which enacts that the foreign slave should be the property of his. master for ever. Whence the noble earl concludes that the perpetual servitude of foreign slaves was actually sanctioned by the law, But, my lords, I must tell the noble earl, and must tell your lordships, that the noble earl bas understanding at all of the technical terms of the Jewish law. In all the laws relating to the transfer of property, the words for ever,› signify only to the next jubilee.' That is the longest for ever' which the Jewish lat knows with respect to property. And this law, which makes the foreign slave the property of his master for ever, makes him no longer the master's property than to the next jubilee. And; with the great attention the noble earl has given to the laws and history of the Jews, he must know, that when they were carried into captivity, they were told by their prophets, that

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crimes against civil society, is at least doubtful; | that if in any case lawful, such circumstances are necessary to make it so, as seldom concur, and therefore render a just commencement of it barely possible; and that the oppressive manner in which it has generally commenced, the cruel means necessary to enforce its continuance, and the mischiefs ensuing from the permission of it, furnish very strong presumptions against its justice, and at all events evince the humanity aud policy of those states, in which the use of it is no longer tolerated.

Universality of domestic Stavery amongst the

causes, which contributed to this alteration, none were probably more effectual, than experience of the disadvantages of slavery; the difficulty of continuing it; and a persuasion that the cruelty and oppression almost necessarily incident to it were irreconcilable with the pure morality of the Christian dispensation. The history of its decline in Europe has been traced by many eminent writers, particularly Bodin(s), Albericus Gentilis (t), Potgiesserus (u), Dr. Robertson (w), and Mr. Millar (r). It is sufficient here to say, that this great change began in Spain, according to Bodin, about the end of the eighth century, and was become general before the middle of the fourteenth century. Bartolus, the most famed commentator on the civil law in that period, represents slavery as in disuse; and the succeeding commentators hold much the same language. However, they must be understood with many restrictions and exceptions; and not to mean, that slavery was completely and universally abolished in Europe. Some modern civilians, not sufficiently attending to this circumstance, rather too hastily reprehend their predecessors for representing slavery as disused in Europe. The truth is, that the ancient species of slavery by frequent emancipations became greatly diminished in extent; the remnant of it was considerably abated in severity; the disuse of the practice of enslaving captives taken in the wars between Christian powers assisted in preventing the future increase of domestic slavery; and in some countries of Europe, particularly England, a still more effectual method, which I shall explain hereafter, was thought of to perone of the crimes which drew down that judg-fect the suppression of it. Such was the exment upon them, was their gross neglect and violation of these merciful laws respecting manumission. And that, in contempt and defiauce of the law, it had been their practice to hold their foreign slaves in servitude beyond the year of jubilee."

But however reasonable it may be to doubt the justice of domestic slavery, however convinced we ancients. may be of its ill effects, it must be confessed, that the practice is antient, and has been almost universal. Its beginning may be dated from the remotest period, in which there are any traces of the history of mankind. It commenced in the barbarous state of society, and was retained, even when men were far advanced in civilization. The nations of antiquity most famous for countenancing the system of domestic slavery were the Jews, the Greeks, the Romans, and the antient Germans (r); amongst all of whom it prevailed, but in various degrees of severity. By the antient Germans it was continued in the countries they over-run; and so was transmitted to the various kingdoms and states, which arose in Europe out of the Europe. ruins of the Roman empire. At length however it fell into decline in most parts of Europe; and amongst the various

Decline of slavery in

66

in America.

piring state of domestic slavery in Revival of doEurope at the commencement of mestic slavery the sixteenth century, when the discovery of America and of the western and eastern coasts of Africa gave occasion to the introduction of a new species of slavery. It -My lords, although we have no ex- took its rise from the Portuguese, who, in order plicit prohibition of the slave trade in the New to supply the Spaniards with persons able to Testament, we have a most express reprobation sustain the fatigue of cultivating their new of the trade in slaves, even in that milder form, possessions in America, particularly the islands, in which it subsisted in ancient times. Such opened a trade between Africa and America a reprobation of it as leaves no believer at for the sale of negro slaves. This disgraceful liberty to say, that the slave trade is not con- commerce in the human species is said to have demned by the gospel. The reverend prelate begun in the year 1508, when the first impornear me has cited the passage [1 Tim. i, tation of negro slaves was inade into Hispaniola 9-10] in which St. Paul mentions men- from the Portuguese settlements on the western stealers' among the greatest miscreants. Men- coasts of Africa (y). In 1540 the emperor stealers,' so we read in our English Bible. Charles the fifth endeavoured to stop the proBut the word in the original is avdgamodicals.gress of the negro slavery, by orders that all Αηδραποδιςής is literally a slave trader,' and. no other word in the English language, but. slave trader, precisely renders it. It was indeed the technical name for a slave trader in the Attic law."

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(r) It appears by Cæsar and Tacitus, that the ancient Germans had a kind of slaves be. fore they emigrated from their own country. See Caes, de Bell. Gall. lib. 6, cap. 13, et Tac. de Mor. German, cap. 24, et 25, et Potgiess. de stat, servor. ap. Germ, lib. 1, cap. 1.

VOL. XX.

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(s) See his book De Republicâ, cap. 5, de imperio servili.

(t) Jur. Gent. cap. de servitute. (u) Jur. Germ. de statu servorum. (w) Life of the emperor Charles the 5th, vol. 1.

(a) Observations on the distinction of ranks in civil society. See also Tayl. Elem. Civ. L. 434 to 439.

(3) Ander. Hist. Comm. v. 1, p. 336,

slaves in the American isles should be made free; and they were accordingly manumitted by Lagasca the governor of the country, on condition of continuing to labour for their masters. But this attempt proved unsuccessful, and on Lagasca's return to Spain domestic slavery revived and flourished as before (z). The expedient of having slaves for labour in America was not long peculiar to the Spaniards; being afterwards adopted by the other Europeans, as they acquired possessions there. In consequence of this general practice, negroes are become a very considerable article in the commerce between Africa and America; and domestic slavery has taken so deep a root in most of our own American colonies, as well as in those of other nations, that there is little probability of ever seeing it generally suppressed.

The attempt to introduce the slavery of negroes into England examined.

law has no provisions to regulate any other slavery, therefore no slavery can be lawful in England, except such as will consistently fall under the denomination of villenage.

of a villein.

The condition of a villein bad most of the incidents which I have The condition before described in giving the idea of slavery in general. His service was uncertain and indeterminate, such as his lord thought fit to require; or, as some of our ancient writers (b) express it, he knew not in the evening what he was to do in the morning, he was bound to do whatever he was commanded. He was liable to beating, imprisonment, and every other chastisement his lord might prescribe, except killing and maiming (c). He was incapable of acquiring property for his own benefit, the rule being quicquid acquiritur servo, acquiritur domino' (d). He was himself the subject of property; as such saleable and transmissible. If he was a villein regardant, he passed with the manor or land to which he was annexed, but might be severed at the pleasure of his lord (e) If he was a villein in gross, he was an hereditament or a chattel real according to his

(b) See the extracts from them in Co. Litt. 116, b.

(c) See Termes de la Ley, edit. of 1567, Voc. Villenage-Old Tenures, cap. Villenage Fitzh. Abr. Coron. 17.-2 Ro. Abr. 1.—2 Inst. 45.-and Co. Litt. 126, 127.

Here I conclude my observations on domestic slavery in general. I have exbibited a view of its nature, of its bad tendency, of its origin, of the arguments for and against its justice, of its decline in Europe, and the introduction of a new slavery by the European nations into their American colonies. I shall now examine the attempt to obtrude this new slavery into England. And here it will be material to observe, that if on the declension of slavery in this and other countries of Europe, where it is discountenanced, no means had been devised to obstruct the admission of a new slavery, it would have been vain and fruitless to have attempted superseding the ancient species. But I hope to prove, that our ancestors at least were not so short-sighted; and that long and uninterrupted usage has established rules, as effectual to prevent the revival of slavery, as their humanity was successful in once suppressing it. I shall endeavour to shew, that the law of England never recognized any species of domestic slavery, except the ancient one of vil-volente.' Jenage now expired, and has sufficiently provided against the introduction of a new slavery under the name of villenage (a) or any other denomination whatever. This proposition I hope to demonstrate from the following considerations.

Arguments to
prove, that
he law of
England will
not admit a
new slavery.

1. Argument rom the manner of making title of a villein.

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(d) Co. Litt. 117, a.-The words, in pleading seizin of villein-service, are very expressive of the lord's power over the villein's property. In 1 E. 2, 4, it is pleaded, that the lord was seized of the villein and his ancestors 'come affaire rechat de char et de sank et de 'fille marier et de eux tailler haut et bas, &c.' The form in 5 E. 2, 157, is, 'come de nos vileynes en fesant de luy notre provost en p'nant de luy rechat de char et de saunk et redemption pur fille et fitz marier de luy et 'de ces aunc et a tailler haut et bas a notre In the first of the above forms there is evidently a misprint; and the reading should be a faire rechat' instead of 'affaire 'rechat.' As to the word provost' in the second form, it seems to signify 'plunder,' and perhaps the print should be 'proie' or proye' instead of provost.' I was led to this con1. I apprehend, that this will ap-jecture by the following proverb in Cotgrave's pear to be the law of England from French Dictionary, qui a le vilain il a sa the manner of making title to a proye.' See Cotgr. edit. of 1673, voc. proye. villein. However, in the Latin Entries the word provost' is translated propositum,' which in a barbarous sense of the word may be construed to signify will' or pleasure,' and will make the passage intelligible. In some Entries' pro

The only slavery our law-books take the least notice of is that of a villein; by whom was meant, not the mere tenant by villein services, who might be free in his person, but the villein in blood and tenure; and as the English

(a) See Bodin de Republic. lib. 1, c. 5. (a) Villenage is used to express sometimes the tenure of lands held by villein-services, and sometimes the personal bondage of the villein; but throughout this argument it is applied in the latter sense only.

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vost' is translated' præpositus ;' but this word cannot be understood in any sense that will make this use of it intelligible.

The forms of pleading seizin of villein-services in the Latin Entries are very similar to those I have extracted from the year-books. See Rast. Entr. 401, a,

(e) Litt. sect, 181.

The origin of

about the forms of the constitution of the succession to the crown. Another cause, which greatly contributed to the extinction of villenage, was the discouragement of it by the courts of justice. They always presumed in favour of liberty, throwing the onus probandi' upon the lord, as well in the writ of Homine Replegiando, where the villein was plaintiff, as in the Nativo Habendo, where he was defendant (). Nonsuit of the lord after appearance

lord's interest; being descendible to the heir extorted during the rage of the civil wars, so where the lord was absolute owner, and trans-frequent before the reign of Henry the 7th, missible to the executor where the lord had only a term of years in him (f). Lastly, the slavery extended to the issue, if both parents were villeins, or if the father only was a villein; our law deriving the condition of the child from that of the father, contrary to the Roman law, in which the rule was partus sequitur ventrem (g). The origin of villenage is princivilleins pally (4) to be derived from the wars between our British, Saxon, Danish and Norman ancestors, whilst they were contending for the possession of this country. Judge Fitzherbert, in his reading on the 4th of Edw. 1, stat. 1. entitled Extenta manerii, supposes villenage to have commenced at the Conquest, by the distribution then made of the forfeited lands and of the vanquished inhabitants resident upon them (i). But there were many bondmen in England before the Conquest, as appears by the Anglo Saxon laws regulating them; and therefore it would be nearer the truth to attribute the origin of villeins, as well to the preceding wars and revolutions in this country, as to the effects of the Conquest (k). After the Conquest many things happily concurred, first to check the progress of domestic slavery in England, and finally to suppress it. The cruel custom of enslaving captives in war being abolished, from that time the accession of a new race of villeins was prevented, and the humanity, policy, and necessity of the times were continually wearing out the ancient race. Sometimes, no doubt, manumissions were freely granted; but they probably were much oftener

Decline of villenage.

(f) Bro. Abr. Villenage, 60.-Co. Litt. 117. (g) Co. Litt. 123. Antiently our law seems to have been very uncertain in this respect. See Glanv. lib. 5, c. 6. Mirr. c. 2, s. 38. Britt. c. 31. But the writers in the reign of Henry the 6th agree, that our law was as here represented; and from the plea of bastardy, which was held to be a peremptory answer to the allegation of villenage so early as the reign of Edward the 3d, I conjecture, that the law was settled in the time of his father. See Fortesc. Laud. Leg. Angl. c. 42. Litt. sect. 187. -43 E. 3, 4, and Bro. Abr. Villenage, 7.

(h) I do not say wholly, because probably there were some slaves in England before the first arrival of the Saxons; and also they and the Danes might bring some few from their own country.

(i) See the extract from Fitzherbert's reading in Barringt. Observations on Ant. Stat. 2d edit. p. 237.*

(k) See Spelm. Gloss. voc. Lazzi et Servus. Soma, on Gavelk. 65, and the index to Wilk. Leg. Saxon. tit. Servus.

Concerning the antiquity of villenage, see something in "A Discourse of Tenures," said to be written by sir Walter Raleigh, published in Gutch's Collectanea Curiosa, vol. 1, p. 50.

(1) See Lib. Intrat. 176, a. 177, b. & Bro. Abr. Villenage, 66. It seems however, that if after a Nativo Habendo brought by the lord, the villein, instead of waiting for the lord's proceeding upon it, sued out a Libertate Probanda to remove the question of villenage for trial before the justices in eyre, on the return of it he was to produce some proof of his free condition; and that if he failed, he and his pledges were amerced. But this failure did not entitle the lord to any benefit from bis Nativo Habendo, and therefore, if he proceeded in it, and could not prove the villenage, the judgment was for the villein; or if the lord did not proceed, a nonsuit, which was equally fatal to the lord's claim, was the necessary consequence. See 47 H. 3. It. Dev. Fitz. Abr. Villenage, 39. In truth, the requisition of proof from the villein on the Libertate Probanda, and the amercement for want of it, seem to have been mere form; for, as Fitzherbert says, in explaining the effect of the Libertate Probanda," the record shall be sent before the justices in eyre, and the lord shall declare thereupon, and the villein shall make his defence and plead thereunto, and the villein shall not declare upon the writ de Libertate Probanda, nor shall any thing be done thereupon; for that writ is but a Supersedeas to surcease for the time, and to adjourn the record and the writ of Nativo Habendo, before the justices in eyre." Fitz. Nat. Br. 77, D. Upon the whole therefore it may I think he safely asserted, that in all cases of villenage the onus probandi' was laid upon the lord.

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The several remedies against and for one claimed as a villein are now so little understood, that perhaps a short account of them may be acceptable; more particularly as, by a right conception of them, it will be more easy to determine on the force of the argument drawn against the revival of slavery from the rules concerning villenage.

The lord's remedy for a fugitive villein was, either by seizure, or by suing out a writ of Nativo Habendo, or Neifty, as it is sometimes called.

1. If the lord seized, the villein's most ef.fectual mode of recovering liberty was by the writ of Homine Replegiando; which had great advantage over the writ of Habeas Corpus. In the Habeas Corpus the return cannot be contested by pleading against the truth of it, and consequently on a Habeas Corpus the

in a Nativo Habendo, which was the writ for asserting the title of slavery, was a bar to another Nativo Habendo, and a perpetual enfranchisement; but nonsuit of the villein after appearance in a Libertate Probanda, which was one of the writs for asserting the claim of liberty against the lord, was no bar to another writ of the like kind (m). If two plaintiffs joined in a Nativo Ilabendo, uonsuit of one was a nonsuit of both; but it was otherwise in a Libertate

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Probanda (n). The lord could not prosecute for more than two villeins in one Nativo Habendo ; but any number of villeins of the same blood might join in one Libertate Probanda (0). Manumissions were inferred from the slightest circumstances of mistake or negligence in the lord, from every act or omission which legal refinement could strain into an acknowledgment of the villein's liberty. If the lord vested the ownership of lands in the villein, received homage from him, or gave a bond to him, he question of liberty cannot go to a jury for trial; was enfranchised. Suffering the villein to be though indeed the party making a false return on a jury, to enter into religion and be prois liable to an action for damages, and punish- fessed, or to stay a year and a day in ancient able by the Court for a contempt; and the demesne without claim, were enfranchisements. Court will hear affidavits against the truth of Bringing ordinary actions against him, joining the return, and if not satisfied with it restore with him in actions, answering to his actions the party to his liberty. Therefore, if to a without protestation of villenage, imparling in Habeas Corpus villenage was returned as the them or assenting to his imparlance, or suffercause of detainer, the person for whom the writing him to be vouched without counter-pleading was sued at the utmost could only have ob- the voucher, were also enfranchisements tained his liberty for the time, and could not by implication of law (p). Most of the conhave had a regular and final trial of the ques-structive manumissions I have mentioned were tion. But in the Homine Replegiando it was otherwise; for if villenage was returned, an Alias issued directing the sheriff to replevy the party on his giving security to answer the claim of villenage afterwards, and the plaintiff might declare for false imprisonment and lay damages, and on the defendant's pleading the villenage had the same opportunity of contesting it, as when impleaded by the lord in a Nativo Habendo. See Fitzh. N. Br. 66. F. et Lib. Intrat. 176, a. 177, b.

2. If the lord sued out a Nativo Habendo, and the villenage was denied, in which case the sheriff could not seize the villeiu, the lord was then to enter his plaint in the county court; and as the sheriff was not allowed to try the question of villenage in his court, the lord could not have any benefit from the writ, without removing the cause by the writ of Pone into the King's-bench or Common Pleas. [For the count, pleading and judgment in the Nativo Habendo after the removal, see Rast. Entr. 436, 437.] It is to be observed, that the lord's right of seizure continued notwithstanding his having sued out a Nativo Habendo, unless the villein brought a Libertate Probanda. This writ, which did not lie except upon a Nativo Habendo previously sued out, was for removal of the lord's plaint in the Nativo Habendo for trial before the justices in eyre or those of the King's bench, and also for protecting the villein from seizure in the mean time. This latter effect seems to have been the chief reason for suing out the Libertate Probanda; and therefore after the 25th of Edw. 3, stat. 5, c. 18, which altered the common law, and gives a power of seizure to the lord, notwithstanding the pendency of a Libertate Probanda, that writ probably fell much into disuse, though subsequent cases, in which it was brought, are to be found in the yearbooks. See Fitzh. Nat. 77, to 79, and 11 Heb. 4, 49.

(m) Co. Litt. 139.

the received law, even in the reign of the first Edward (9). I have been the more particular in enumerating these instances of extraordinary favour to liberty; because the anxiety of our ancestors to emancipate the ancient villeins, so well accounts for the establishment of any rules of law calculated to obstruct the introduction of a new stock. It was natural, that the same opinions, which influenced to discountenance the former, should lead to the prevention of the latter.

when villes

age expired.

I shall not attempt to follow villenage in the several stages of its decline; it being sufficient here to mention the time of its extinction, which, as al! agree, happened about the latter end of Elizabeth's reign or soon after the accession of James (7). One of the last instances, in which villenage was insisted upon, was Crouch's case reported in Dyer and other books (s). An entry having been made by one Butler on some lands purchased by Crouch, the question was, whether he was Butler's villein regardant; and on two special verdicts, the one in ejectment Mich. 9th and 10th Eliz. and the other in assize Easter 11th Eliz. the claim of villenage was disallowed, one of the reasons given for the judgment in both being the want of seizing of the villein's person within 60 (t) years, which is the time limited by the 32d of Hen. 8, chap. 2, in all cases of hereditaments

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