Attorneys and Law Firms Ridgely, for the petitioner. If Joice was a slave before (which we do not admit) the moment she set her foot upon the soil of England, she became free, no matter where she was born or whence she came. If she was once free, we contend she could not afterwards become *297 a slave by any change of her residence, nor could any agreement between Lord Baltimore, and her former master, affect her, or impair this right in the slightest degree.
Slavery is incompatible with every principle of religion and morality. It is unnatural, and contrary to the maxims of political law, more especially in this country, where “we hold these truths to be self evident, that all men are created equal;” and that liberty is an “unalienable right.” These doctrines are supported by the writers on natural law. 1 Rutherf. Inst. ch. 20, s. 3--“Though it may be possible for a man to be a slave from his birth, yet no man is naturally a slave. They who are slaves from their birth must have been made such by some accident which happened before they were born; slavery is by no means their natural condition.” And it is also said, (1 Ruth. Inst. ch. 10, s. 4,) “No man can absolutely and without reserve renounce his liberty.” By the common law of England no person can have a property in another as a slave; and slavery can only be established by municipal regulations.
In deciding this question, the court are not to be guided or governed by any principles of law which have been recognized as to villeins in England. There is no analogy between villenage and slavery in this country, and so the court of appeals decided in the case of Butler vs. Boarman.a Indeed the dissimilarity is so evident as to preclude argument. Villeins were either regardant, that is, annexed to the manor or land, or else they were in gross, that is annexed to the person of the lord, and transferable by deed from one owner to another. If a niefe took a freeman to her husband, their issue was free. A man might become a villein by confession in a court of record. If a niefe had a bastard, he was free.
In case of marriage the issue followed the condition of the father, the children of a free woman becoming villeins, and of a niefe becoming free, where a freeman married a niefe, or a free woman married a villein--Co. Litt. s. 185, 186, 187. These and many other rules of law adopted as to villeins, plainly mark the line of difference between slavery in this country, and villenage in England, and prove the correctness of the decision in the case of Butler vs. Boarman. In the reign of Edward VI. vagabonds in England were by statute made slaves for two years upon conviction before two justices; but this statute was soon repealed, and the punishment of slavery abolished, although vagrancy had become an excessive grievance, *298 and the statutes against it were highly penal. This is an evidence of the abhorrence with which slavery was regarded at that day, (1547,) in England.
The Portuguese in 1455 commenced the slave trade. They were followed by the Spaniards and Dutch.
The African company was established in England in 1672, (Charles II) and in 1689 they entered into an agreement to supply the Spaniards with slaves. In 9 and 10 William III. (1698,) an act passed relative to the slave trade; and also in 1726, (13 Geo. I ch. 8,) and in 1749. None of these acts countenance a slave trade to England. If we revert to the condition of these persons in Africa, we find that they were captives who had been taken in their wars, and were sold to the traders as slaves. The first act of the legislature of Maryland which notices slaves, was passed in 1663, ch. 30. The practice and usage of trade before that act never extended to persons who went to or came from England. The trade from Africa to America was direct; and as the slave trade was contrary to the policy of the common law and of England, no person was held as a slave, unless he came through that course or medium of trade established by act of parliament.
“This spirit of liberty,” “is so deeply implanted in our constitution, and rooted even in our soil, that a slave or a negro, the moment he lands in England, falls under the protection of the laws, and so far becomes a freeman; though the master's right to his services may possibly still continue.” “The law of England abhors and will not endure the existence of slavery within this nation.” The law of England did not dissolve a civil obligation between the master and servant as to his perpetual service; but this could not extend to the issue of the servant, and reduce them to slavery. In the case of Smith vs. Brown & Cooper, decided in 13 Will. III. Lord Holt, Ch. J. said, “as soon as a negro comes into England he is free; one may be a villein in England, but not a slave;” and in this case it was determined, that indebitatus assumpsit would not lie for the price of a negro sold in England, and that the plaintiff ought to have averred that the sale was in Virginia, and by the laws of that country negroes are saleable.--S. C. Holt, 495. In the succeeding reign, (4 Ann.) it was determined that trover would not lie for a negro, Smith vs. Gould, (Salk. 666, 667, S. C. 2 Ld. Raym. 1274.) In this case, (in Lord Raymond,) 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 property in another.” “There is no such thing as a slave by the law of England;” and the court denied the opinion in the case of Butts vs. Penny, (2 Lev. 201. S. C. 3 Keb. 785,) and per Holt, Ch. J. (1 Lord Ray. 146.) Trover will not lie for a negro.
In the year 1753, the legislature of Virginia, persuaded of the correctness of the doctrine we contend for, passed a law to prevent slaves getting free by going to England. Our act of assembly, (1663, ch. 30,) does not relate to negroes who came from England; this must be inferred from the words of the act, which says, “that all negroes, and other slaves, IMPORTED,” &c. The term imported does not allude to any who may come from Great Britain; it must be applied to those brought here from Africa, with which country the slave trade was then sanctioned. The act does not say all negroes brought into Maryland shall be slaves.--The words of the law are, “that all negroes, or other slaves, already within the province, and all negroes and other slaves to be hereafter imported into the province, shall serve durante vita; and all children born of any negro or other slave, shall be slaves as their father's were, for the term of their lives.”a-- Lib. C. & W. H. fol. 153. This act is highly penal, and therefore by the general rule ought to be construed strictly, and not extended beyond the letter of the law.
With all these cases and principles in our favour, we contend that the act of Joice's landing in England, operated as an emancipation of her from the bonds of slavery, even if she were a slave before. If this be the law of England, our courts will notice that law; for the rule is undoubted, that courts of justice will notice the laws of other countries, and enforce them, where a principle like the present is agitated, if they are not repugnant to justice or to our own civil institutions. Then Joice's issue, born in England, could not be slaves, or held as such. We will for illustration suppose, that a writ of Habeas Corpus had been issued for Joice, and she had been discharged, she never could have been claimed afterwards as a slave. Again, suppose a petition had been filed by her in Maryland, and judgment given against her, and upon an appeal to the king in council that judgment had been reversed, would not she and her issue be free? This case must now be considered as it would have been at that time. Even now, if we advert to the laws of a sister state, Pennsylvania, if a person from this state carries a slave into that state, and keeps him there six months, the slave becomes free and emancipated, and could not be held in slavery if he returned again to this state. So it was with Joice, and her issue, after she went to England.
*He concluded his argument by observing, that he was confident the court would decide fairly and without bias between these parties, thus evincing to the world, that what Mr. Solicitor General Norton, in the case of Wilkes vs. Wood, (Lofft's Rep. 9) had said as to freedom in England, was equally applicable here, “that there is no man so high that he is out of the reach of the law, nor any man so low, that he is beneath the protection of it.”
Jenings, on the same side.
This question is to be decided upon the principles and maxims of the law of England. As a preliminary we must see what the writers upon English law have defined slavery to be. Grotius L. 2, ch. 5, s 27, calls it an obligation to give all our labour for a supply of the bare necessaries of life. Rutherforth, in his institutes, B. 1. ch. 20, thus defines it: “Perfect despotism seems therefore to be an alienable right to direct all the actions of another; and consequently perfect slavery is an obligation to submit to be thus directed.” Neither of these definitions are satisfactory. The master may have a right to his servant's perpetual service; he may have a right to administer correction; but he has no right over life or limb. Slavery cannot be justified on any principles whatever, and it is reprobated by every writer upon the subject. The great foundation upon which it rests is captivity-
. Amongst many other causes or reasons given for slavery, the most reasonable one is assigned by Rutherforth in his institutes,
“Thirdly, slavery may arise from damages done where the person who did it has no other way of making reparation.” And again, . . .“The law of nature will allow those who are prisoners to be made slaves by the nation who takes them, to repair the damages that gave occasion to a just war, or that are done in it, and to make satisfaction for the expenses in carrying it on, so that their labour, or the price for which they are sold, may discharge these demands.” To the same effect is Grotius, L. 3. ch. 7, s. 5--T
his is the reason assigned by every nation, Greeks, Romans, Jews, Germans, &c. Tacitus,. . . But none of these reasons exist as to the natives of Africa. And in vain shall we recur to these principles for arguments to justify slavery, so utterly subversive and contrary as it is, and as all the decisions go to prove it to be, to the very spirit and genius of the laws of England. To prove the abhorrence with which the slave trade was viewed, he called the attention of the court to an extract *301 from a very celebrated work, which would evince how soon was its decline in Europe--. . .
-“One of the first advantages which the Portuguese had derived from their discoveries in Africa, arose from the trade in slaves. Various circumstances concurred in reviving this odious commerce, which had been long abolished in Europe, and which is no less repugnant to the feelings of humanity than to the principles of religion.” And in England the most effectual remedies have from time to time been adopted for the suppression of slavery. No where can we find in the history of its jurisprudence, or in the writings of the various authors who have commented upon its constitution and laws, a single passage which justifies slavery, as it is thus defined, or speaks of it as existing there. In 1580, slavery commenced by the importation of them to America. No species of bondage ever existed in England excepting villenage. Villeins were either by blood or tenure; their services were uncertain and indeterminate; they were liable to punishment, but no lord could kill or maim them. A freeman might be a villein, for the rule was “villenagium sive servitium nihil detrahit libertate.” And again “tenementum non mutat statum liberi non magis quam servi; poterit enim liber homo tenere purum villenagium, faciendo quicquid ad villanum pertinebit, et nihilominus liber erit”--Co. Litt. 116. Term de Ley, tit. Villenage. Villenage descended to the issue where the father and mother were villeins--Co. Litt. sect. 181. But if a freeman married a niefe their issue was free--Co. Litt. 123. a. Wilkins, 7, 8. Tenure in villenage is of an ancient date. Before the conquest there were villeins in England--1 Hume's Hist. Eng. 181--This was 500 years before the nation engaged in the slave trade. The courts have always discouraged this tenure, widely differing in many essential respects from slavery; and in every case they have invariably acted upon the principle of always presuming in favour of liberty-- Co. Litt. sect. 202, to 209. Fitzh. N. B. 78. 2 Roll. Ab. 735, 736, 737. In the reign of Elizabeth, villenage was at an end; it was abolished. The last case to be found upon the subject of villenage is in Dyer,. . . Hugh. Ab. tit. Villenage. Villenage ceased to exist as early as the reign of Edward VI. (2 Blk. Com. 99,) excepting in a few cases where they were held by the clergy. Whether this gradual decay was owing to deaths or manumission, actual or implied, it matters not. The tenure was virtually abolished by the statute 12 Car. II. ch. 24. Charles, Lord Baltimore, who claimed Joice as a slave, left England in 1681. He *302 had been in the province presiding in person in the assembly in 1676, and was again presiding in person in the assembly in September 1681, and continued so presiding at each session until and during December 1688.--Bacon's Laws of Maryland. In 1689 there were negroes in America--2 Lev. 201. Villenage had ceased in England before Lord Baltimore left there.
If he brought Joice from thence with him, she was a free woman, and his thus taking her among slaves could not alter her condition. Or, on the other hand, if he, or any other person, finding her a slave in this country, carried her to England, she then became free; for not even villenage at that day existed there, having ceased before 1661. That villenage did not exist after 1574, is to be presumed from what is said by Barrington in his observations on the statutes, page 238. If therefore villenage did not exist when Joice was in England, surely slavery could not. No matter what may have been the condition of Joice previous to her being in Fngland, the moment she arrived there she was free; at least she was so far so that her issue born afterwards were in no degree bound to the service of her master.--1 Lord Ray. 146, 147. 5 Mod. 186. Judelinus, 6. Venius, 32. Denewey, 5. It may, as to this case be granted, that the master had still a right to the service of the former slave durante vita. A case is mentioned in 1 Lord Ray. 146, 147, between Gelly and Cleve, in which it was said the court determined that trover would lie for a negro boy. This decision is stated to have been in the common pleas before Lord Raymond commenced his reports. If that court ever did make such a decision, it must have been without argument. The case is only cited from memory, and it has been since repeatedly overruled. After weighing these several authorities, even if it be granted that Lord Baltimore had at any time previously been entitled to Joice as a slave, yet this right was divested on her going to England; and being once thus divested, it never could again attach so as to affect her issue. Much may be said as to the injustice of this case, and the hardship of it; there is no injustice in making the decision, contended for on the part of the petitioner; it was a voluntary act in Joice's owner who carried her to England. Let us suppose the case of a ship from Africa, loaded with these human victims to an infamous traffic, being stranded on the coast of England, there would be no injustice in freeing them from a bondage which fraud, violence and rapine, had forced upon them; although their being thus cast upon a friendly shore would be an act of God, which their owners could not avert. And the counsel on the other side cannot contend that the cargo of slaves would not be free. If there is any injustice, any hardship in this case, *303 the petitioner, and his ancestors, have suffered it; they have been held in thraldom when they were entitled to their freedom; they have been the victims; they have been the only sufferers
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