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Page 30
"In pursuance of His Majesty's order in council, hereunto annexed, we do
humbly certify our opinion to be that negroes are merchandise."
Signed by Lord Chief-Justice Holt, Judge Pollexfen, and eight other
judges of England.
Mr. Mason. What is the date of that?
Mr. Benjamin. It was immediately after the treaty of Utrecht, in 1713.
Very soon afterwards the nascent spirit of fanaticism began to obtain
a foothold in England; and although large numbers of negro slaves were
owned in Great Britain, and, as I said before, were daily sold on the
public exchange in Lon-don, questions arose as to the right of the
owners to retain property in their slaves; and the merchants of London,
alarmed, submitted the question to Sir Philip Yorke, who afterwards
became Lord Hardwicke, and to Lord Talbot, who were then the solicitor
and attorney-general of the kingdom. The question was propounded to
them, "What are the rights of a British owner of a slave in England?"
and this is the answer of those two legal functionaries. They certified
that "a slave coming from the West Indies to England with or without his
master, doth not become free; and his master's property in him is not
thereby determined nor varied, and the master may legally compel him to
return to the plantations."
And, in 1749, the same question again came up before Sir Philip Yorke,
then Lord Chancellor of England, under the title of Lord Hardwicke, and,
by a decree in chancery in the case before him, he affirmed the doctrine
which he had uttered when he was attorney-general of Great Britain.
Things thus stood in England until the year 1771, when the spirit
of fanaticism, to which I have adverted, acquiring strength, finally
operated upon Lord Mansfield, who, by a judgment rendered in a case
known as the celebrated Sommersett case, subverted the common law of
England by judicial legislation, as I shall prove in an instant. I say
it not on my own authority. I would not be so presumptuous. The Senator
from Maine (Mr. Fessenden) need not smile at my statement. I will give
him higher authority than anything I can dare assert. I say that in 1771
Lord Mansfield subverted the common law of England in the Sommersett
case, and decided, not that a slave carried to England from the West
Indies by his master thereby became free, but that by the law of
England, if the slave resisted the master, there was no remedy by which
the master could exercise his control; that the colonial legislation
which afforded the master means of controlling his property had no
authority in England, and that England by her laws had provided no
substitute for that authority. That was what Lord Mansfield decided.
I say this was judicial legislation. I say it subverted the entire
previous jurisprudence of Great Britain. I have just adverted to the
authorities for that position. Lord Mansfield felt it. The case was
argued before him over and over again, and he begged the parties to
compromise. They said they would not. "Why," said he, "I have known
six of these cases already, and in five out of the six there was a
compromise; you had better compromise this matter"; but the parties said
no, they would stand on the law; and then, after holding the case up
two terms, Lord Mansfield mustered up courage to say just what I have
asserted to be his decision; that there was no law in England affording
the master control over his slave; and that therefore the master's
putting him on board of a vessel in irons, being unsupported by
authority derived from English law, and the colonial law not being in
force in England, he would discharge the slave from custody on _habeas
corpus_, and leave the master to his remedy as best he could find one.
Mr. Fessenden. Decided so unwillingly.
Mr. Benjamin. The gentleman is right--very unwillingly. He was driven
to the decision by the paramount power which is now perverting the
principles, and obscuring the judgment of the people of the North; and
of which I must say there is no more striking example to be found than
its effect on the clear and logical intellect of my friend from Maine.
Mr. President, I make these charges in relation to that judgment,
because in them I am supported by an intellect greater than Mansfield's;
by a judge of resplendent genius and consummate learning; one who, in
all questions of international law, on all subjects not dependent upon
the peculiar municipal technical common law of England, has won for
himself the proudest name in the annals of her jurisprudence--the
gentleman knows well that I refer to Lord Stowell. As late as 1827,
twenty years after Great Britain had abolished the slave trade, six
years before she was brought to the point of confiscating the property
of her colonies which she had forced them to buy, a case was brought
before that celebrated judge; a case known to all lawyers by the name of
the slave Grace. It was pretended in the argument that the slave Grace
was free, because she had been carried to England, and it was said,
under the authority of Lord Mansfield's decision in the Sommersett
case, that, having once breathed English air, she was free; that the
atmosphere of that favored kingdom was too pure to be breathed by a
slave. Lord Stowell, in answering that legal argument, said that after
painful and laborious research into historical records, he did not find
anything touching the peculiar fitness of the English atmosphere for
respiration during the ten centuries that slaves had lived in England.
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