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Mew York 14609 USA :''6) 482 - 0300 - Phone 7! 6) 288 - 5989 - Fax )) -4 % 'lM/^//yy^/^/r) OPINIONS OF SEVERAIrf GENTLEMEN of the LAW, •itfiiil ft i'li -mm \ ON THE SUBJECT OF vJ^iEGRo se;rvitude, IN THE PROVINCE OF » NOVA-SCOTIA. . ; ■'- i ^4i.»<>»M»ii>nti «<.>^uf<»»tM*k4»*>«»»- »..»Mr..>..>><>..»4|»«..4..4..«.4..|..4..4,.4..<..<.<<.. '•V«"<"<-'«"1»t.<«~j|J «T. JOHN ; l^KIMTBO BY JOHN RYAN, MO. 9, LONG- WHA,lf|) tOUTH SIDE MAKKEt kLIP, PRIHTEK TO THK KIH<;'» MOST BXC»l.'.Kt(T * MAJESTY. ^•» *>>*•»••»••>••»••» M^*»*«»>*I*>#M#M» »<••«••«»«••• •»-<"«"«"«»1"«"*<»1"«"«-> PREFACE. • CUCH IS the authority of Ci.ftom, that nothing is ^ now given to the Public without a Preface. — Thousih not " Obligd by hunger y or request of Friends y* I neverthelefs find myfelf, on the prefent occafion, un-»j der the neceffity of lubmitting to this fame authority.! It inuft naturally excite fome degree of furprize in the mind of the Readei*, to fee the Public in poffcf-', fK?n of papers which Wnbrace only a private concern! of Col. Delancy, weveinot fome explanation of the! motive which induced tb the publication, to accompa- ny them. I will now proceed to give this explanation with the wafte of as feVv words as poflible : And not only fo, but I will relate the manner in which I became poffefied of thefe very interefting papers. ^ First, as to my motive to this publication. Let me then /ay, that thequertion, whether any fuch thing as Negro Slavery can legally exift in this Province, has long occupied the attention both of the learned and unlearned among us. It has, indeed, lately undergone a judicial in veftigatioh, but without any judicial deci- fion. Now, whether any particular Negro (admitting him to be a Slave) belongs either to A or B, is a mat- ter in which none butlthe litigating parties are direaiy interefted. Therefore! a judicial decifion of it, can only difappoitit the hopes or one or iw^o ivicn. unt when it becomes que^ionablc, whether any particular ^ , thing thing 15 been CO ter in v nearly ( in this petty, y, therefo lie, tha it may of thef only ca As t( papers, ing (ho Aboi old ac( poHs, i fuit ag Slave, there w .upon tl call it) that foi happen Court 1 motion prefent Now lancy h fellors : ing fub them p fliould letter, leave tf be of { ^ • i can thing is really and truly property, wliich had hitherto been confidercd as property, the difputc becomes a mat-, ter in which every l^^Iember of the Community is cither nearly or remotely interefted ; for although every Man in this Province is not pofleffed of this fpecies of pro- perty, yet every Man tnay b2 poflefied of it. Nothing, therefore, can be of more extcnfive utility to the Pub- lic, than to have this queftion put fo faft a-flccp, that it may never awake again. How far the publication of thefe papers may go towards efFe£ting this, the event only can tell. — Thus much as to my motive. As to the manner in which I became poliefled of thefe- papers, I defire leave to refer the Reader to the follow- ing Ihort Narrative. '. , About a year ago, I heard that Col. Delancy («in old acquaintance of mine, and who lives near Anna-» polls, in our neighbouring Province) had inftitutcd a fuit againft a Mr. Wooden |jr detaining his Negro Slave. I heard alfo, that after a verdid: in his favour, there was a motion in arreft of judgment grounded .upon the idea, that an adion of Trover (as Lawyers call it) would not lie for a Negi'o in tliat Piovincc, but that fome other action was the proper one. All this happened at the laft September Term of the Supreme Court there. And I fmce find, that the hearing of the motion was delayed till the September Term in the prefent year. Now, happening fmce to uriderftand, that Col.De> lancy had reforted to feveral of the rnoft learned Coun- fellors in England for their opinions on this intcieil- ing fubjecl, and. that he had obtained opinions from them parallel to his moft fanguine wiihes, I thought I fliould be doing well were I to requeft Col. Delaucy, by letter, to fend me a cony of thole opinions, with his leave to fhow them where I might think they woul - be of fervice. Accordingly I wxote him, and receive . from { from him the papers in the order ifv \vhich they are now publilhed, together with his leave to make what frudent ufc of them I might think proper. Although this permiflion does not go the fuil length of literally jufti^ing me in rending them to the Prefs ; yet 1 have taken the liberty of amplifying this my authority, from a well grounded belief, that the liberty would have been granted n>r, were it more fpecifically requeued. I would jull add, that the Attorney-General of En- gland is always, from the high official rank which he fuftains, conlidered as being at the very top of his pro- feffion. As to Mr. Tidd, it can fcarcely be a fecret here, that he is reputed to be the moft learned fpetial pleader in that country. And I am informed, that the profeffional charaOer of Mr. Perfival, rifes far above the level of mediocrity. As Mr. Aplin's opinion is pretty generally referred to in the three Englifli opini- ons, and as the latter would not be well underilood without a perui'il of tht former, the whole was fent me J and accordingly I publifh the whole. CASE. JAMES DELANCY, Efquire, of Annapolis, in the Province of Nova-Scotia, had a Negro Slave, named Jack, who lun away from his fervice without leave, and went to Halifax, above an hundred miles diftant from Ar.napolis, where he was taken into the fervice of a Ml . Wooden on wages. On hearing this. Col. Delancy directed his Attor- .,^,. 4^,^ ,...:t^ t^ \/lv \\Tr\r\r\r^r\ infortnincr bllTl. that tllC Negro belonged to Mr. Delancv, and that if he detain- ed him, an aaion would be brought agVmlt him foi lo fo doin< for anfv tained I well as men j t wife. Whe by Mr. Slave : Term c laft, wl damage the Coi an a6tic of a N< dercd t tember It w dant at the Pla ges for as in tl tion of he coul Proving Load 01 ley are r what hough iterally 1 have , from I have [\ti\. )f En- lich he is pro- {"ecret fpetial lat the ■ above lion is opini- eiilood as fent , in the named t leave, diftant fervicc Attor- that the detain- him fol- io ib doing. To which Mr. Wooden's Attorney returned for anfwer, that the Negro in c)ucllion was indeed re- tained by Mr. Wooden in his iei vice, but that he, as well as all other Negroes in this Province, were Free men j there not being any law here to make then; other- wife. Whereupon an action of Trover was commenced by Mr. Delancy againft Mr. Wooden, for the Negro Slave : And the caufe came on to be tried at the laft Term of the Supreme Court, which was in September laft, when the Plaintiff obtained a verdicl with Ijo damages. But the Counfel for the Defendant moved the Court in arreft of judgment, upon the ground, that an aaion of Trover would not be for the converfioa of a Negro in this Province. And the motion was or- dered to ft and over for argument to ihe Term in Sep- lember next. It was ftrongly urged, on-.the part of the Defen- dant at the Tiial,' that iisfteadof an action of Trover, the Plaintiff iliould have brougirt his adion for darna-- ges for detaining the Negro, per quod Setiitium amisit^ as in the cafe of any other Servant ; and that no ac- tion of Trover could be maintained for the Negro, as he could be no more the Slave of Mr. Delancy in this Province, Hian he could that of any other pcrfon in London, or elfcwherc. Your opinion is tl-^ercfore reqnedcd, whether an action of Trover was the proper form of aaion for Mr. Delancy to recover the value of his Negro Slave ? Or what is his ])ropcr remedy for iccovery of air.cnds tor the damage he has fiiitaincd. Mr Mr. APLIN'S Opinion. Sir, Your letter of the tenth of O6\ober laft» in which you defire my opinion on a ftated cafe, I have both received and carefully pcrufcd : And I am much rniltaken indeed, if an a^iion of Trover doss not lie for the converfion of a Negro in this Province. I am almoft tempted to fay, that it is the only proper a6\ion,, unlefs the taking fhould appear in proof to be a tortu- ous one. In this latter calc, the Plaintiff has his elec- tion, either to bring this action, or trefpafs. Proper- ty in the Plaintiff, and a fubfequent converfion, are the characlerilVic ingredients of an action of Trover. Bu r the quelVion is, whether a Negro is or can be, in the legal lenfe of the word, ihc property of any Man in this Province ? Now, whether a Negro is or can be tlie property of any Man in this Province, will cmphati^.illy depend upon another queftion — Whether a Negro can or can- not be a Slave in this Piovince ? For if he can bs a Slave here, I tliink when we come coolly to conlidcr the legal dominion which the mailer has over him, he cannot be taken to be any thing Icfs than his Maftcr's property. If fo. Trover muft ncceliarily lie againlt any Man who detains the Slave, after a demand and re- fufal ; — unlefs, indeed, the general Law, in refpe6l to Trover, is laid proftrate in favour of this fpecies of property. Two things, therefore, at this ftage of tlie inquiry, feem to offer thcmfelves for diffincl: confi deration. — Firil, whether a Negro can, in this Province, be a Slave ? Secondly, although he may legally be a Slave here ; yet, whether he #an legally be deemed the pro- perty of any other Man ? Answering the firft of tliefe quei^ions will, I think, go a great way towards aiifwcrii .g the otlici'. In* ' In re can, in that fuc any of ly, bccj them ir fubfequ larly to country a foluti we corr the Afi of it, t trade a: 2. (whi out exc trade;) fot fup as Slav iNtl origins cond, as one fo mad the pre Indigo to unr Thi " trad( " toC " Plar " fuffi *' oug; And a an ens laft» In I have m much not lie . I am a tortu- Kis ulec- I*ic)pci- lon, are Trover, can be, of any perty of depend or can- ran bs a conlidcr him, he Mailer's ; again ft i and re- .^fpe6l to )ecies of inquiry, ation. — ce, be a : a Slave the pro- I think, Lv In refpea to the firft propofition, whether a Negro can, in this Province, be a Slave, I would juft oblcrvc, that fuch a queftion has never yet come dirctf^ly before any of the Courts of Wcftminfter-Hall. I fay dircd- Jy, bccaufe it certainly has fcveral times come before them in a collateral way, as I Ihall take occufion, in a fubfequent ftage of the prefent inquiry, more particu- larly to remark. It is to the ftatute Law of the Mother- country, I prefume, that ve are principally to look .'♦jr a folution of this very interefting qucftion. And when we come to recur to th" original Charter conftituting the African Company, the feveral Royal confirmations of it, the feveral Proclamations to fecure the exclufive trade againft interlopers, and'particularly the 23. Geo. 2. (whi1:h latter lets in all his Majefty's fubjeas, with- out exception, to an equal participation in the African trade we Hiall be at a lofs to difcover a' ; legal grounds fat fuppofing Negroes, who aft conftantly mentioned as Slaves, not to Ix; truly and Jegally fuch. In the ninth of the privileges granted by this fame original Charter, which was made by Charles the Se- cond, in the year 1661, Negroes are exprefsly named as one article of exclufive traffic. And why a Negro, fo made an article of traffic, fhould not be as much the property of a Company trader, as Oflrich Feathers, Indigo, or Gold Dull, is an enigma which I am unable to unravel. The Preamble of the 23. Geo. 2. recites, " that the •' trade to and from Africa, being very advantageous " to Great Britain, andne^eflary for the fupplyin^ the " Plantations and Colonies belonging thereto, with a " fufficient number of Negroes, at reafonable rates, ** ought to be free and open to ^ his Majefty's fubjeas." And accordingly the trade was made free and open by an enatting claufe of the fame act. Under the latitude of this and other aiSls it was* that the % tlie fubjecls of the more Northern Colonic:, while they yet remained under the dominion of his Majefty, pro- lecuted a very gainful trade to the coafts of Africa, no lefs for the fupply of Negroes to Jie Weft-India Klands, than to fupply the more Southern Colonies with that article of traffic. Add to all this, that under the pro- te6tion of the fame general Laws, thefe northern colo- nial traders fnpplied their own feparate diltricls of country, v/ith juft as many Negroes as they could find a market for. I have carefully run my eye over the earlier Laws of Antigua, Virginia, and New- York ; and it is worth remarking, that there is no Law among any of thefe provincial codes, that irf creatrce of any fuch ftate as that of Slavery. Many of their Laws, indeed, and j)ar- ticularly thoie which were nearly contemporary with the firft organization of the rcfpe6live governments, do recognize Negroes a: Slaves. But then thefe fame a6ts go no farther than to regulate their pre-exifting ftate of bondage. The rcafon is obvious. They confider- cd, and rightly too, that this defcription of Men were already made Slaves by thofe acls of Parliament which made them emphatically articles of traffic. Confe- quently, they had nothing further to do, than barely to make the before mentioned regulating a6ls, and to ad juft them to the then exifting circumftances of the caie. The fame thing may be faid of the more northern co- lonies : and particularly of Malfachufetts, Rhode-Ifland, and Connecticut. I mention thefe three, becaufe I am .pretty well acquainted with their whole fyftem of co- lonial jurifprudence. Their Laws alfo fpeak of Negroes as Slaves ; but none of them are declaratory of a ftate of Slavery. The only Law of this Province, which fo much as mentions a Negro, is intituled, " An a6l for '' the regulating Inn-holders, Tavern-keepers, and Re- *' {aikrs ti (C (( (( *' tailers fecond f ♦' Sailor " Slave, ** or pic " exceed '' fuch I *' vant, " the ]\ " tice, 1 " to an; holde perfoi ufuali from vern ** foeve: < ** other ** Jufti( " hand It is moft er But it 1 phatica , was ma ferred, I tional) I made S f fore it . Provmi * Slavery 4^ This tf ^'^•' any ( lonial] «rea h wlille they iefty, pro- Africa, 110 lia Klands, with that ir the pro- hern colo- liilricts of could find :r Laws of is worth y of thefc :h ftate as I, and par- Diary with iments, do r fame a6ts ding flate f confider- Men were icnt which Confe- i barely to s, and to ces of the rthern co- )de-Ifland, :aufe I am em of CO- )f Negroes of a flate , which fo An a6l for J, and Re- tailers (( <( (( (C (( *' tailers of Spirituous Liquors." Now this Aa, in the fecond feftion of it, enafts, " that in cafe any Soldier, Sailor, Servant, Apprentice, bound Servant, or Negro Slave, or other perfoa whatfoever, fliall leave any pawn or pledge, as a fecurity for the payment of any fuin exceeding Five (hillings, con traced in fuch manner, fuch Soldier, Sailor, Servant, Apprentice, bound Ser- vant, or Negro Slave, or other perfon whatfoever, or the Mafters or Miftrefles of fuch Servant, Appren- " tice, bound Servant, or Negro Slave, may complain " to any Jufliceof the Peace where fuch Retader, Inn- '' holder, Tavern or Ale-houfc keeper, or any other *' perfon whatfoever, receiving fuch pawns or pledges, " ufualiy refides, that fuch pawn or pledge is detained '' from him or her by fuch Retailer, Inn-holder, Ta- *' vein or Ale-houfe keeper, or any other perfon what- '' foever, and having made proof thereof upon oath, or *< otherwife ; the fatisfa6tion of the faid juftice, luch •* Jurtice of the Peace is required, by warrant under his " hand and feal, to compel fuch Retailer," &c. It is obfervable that this Acl does, and that in the mod emphatical manner, fpeak of Negroes as Slaves. — But it may eafily be difceined, that it does juft as em- phatically fuppofe them to have been fo before the A6t was made, or even thought of. Hence it may be in- ferred, at leaft, that the provincial Legiflature had in their eye (if indeed they had any thing in it ra- tional) that thefe very Ads of Parliament had already- made Slaves of Negroes within the Province. There- fore it may not improperly be faid, that a Law of this Province does, in faft, admit of fuch a flate as that of Slavery in it. This fame Aa of the 23. Geo. 2. further fays, that ~' ■ any of His Majefty's fubjeas" [whether Britifh or Co- bniai] " forthe fecurity of their Goods, or Slaves, may «rea houfes/' &c, It fpeaks of Negroes, in feveral other B partsf r§ parts of it, as Slaves. There are alfo feveral other fub-^ fequent A6ts of Parliament, which fpeak of Negroes as being in the fame ftate of Bondage. Hence we may fafely argue, that as feveral A6ls of the Britifh Parliament do make Slaves of Negroes ; and as all His Majefty's fubjefts [whether Britifh or Coloni- al] are made equal (harers in the profits of the African or Negro traffic, the Colonial Traders might carry their Slaves, either to the Weft-Indies, or to any other of His Majefty's Colonies on the Continent. Confequently, if Negroes, fo imported into the Weft-Indies, were legally held as Slaves there^ they cannot, when imported into any of the Continental Colonies, be in a better ftate than they would have been, had they been imported into the JVest-Indies. If Negroes therefore are Slaves, as well within this Province, as in the Weft-Indies (for the fame Law that makes them Slaves there^ makes them fo here) then it remains to be confiderect, whether Negroes, fo made Slaves, can be tlie property of their Mafters. I would only further remark, on this head, that what- ever is made an article of traffic, muft neceflarily have an owner, and confequently become an article of fale. And whatever may be legally fold, muft have been the property of the feller : For nothing but property can be fold,' and therefore, whatever can be fold, muft be property. But, that the matter in difpute may not depend al- together upon the foregoing reafoning, let us next fee, whether there is no Law that does, ftill more pointedly, make Negroes property in the hands of their Mafters. Surely there is j for the A6t of the 5. Geo. 2. C. 7. does exprefsly make perfonalEftate of them, and fubjefl: them Englifti creditors. Some of the Colonies, it feems, and particularly Barbadoes and Virginia, had made Laws which •!■ ji which t \ into rea temp^^^ed ? • , '.■ M^ - (the Ati \ larily ft I real Eft I them. ^ terward : game b were n^ into pe laft me nies in ceive h giflati\ Wh the fe\ muft > partict were : will r( they a or coi ; witho is ma the fi liable the h the f^ pro pi thin^ and ] It Upor Negi XI other fub"* Negroes as :al A6ts of yroes ; and or Coloni- he African carry their her of His quently, if irere legally orted into letter ftate ported into ivlthin this i Law that re) then it ;, fo made ■ that what- Tarily have cle of fale. VQ been the operty can i, mult be depend al- ls next fee, pointedly, r Mafters. C. 7. does bjeft them lemands of feems, and nade Law» which ' .., ^ T\TA,rro«»^ who were before perfbnalEftatCj ^^h.ch '^''''^^^^^r^ll'r, an Englilh creditor at- into real. *^°"3 ^ 'J' yon for a perfonal demand C' a Co oni^de^'^^^^^^^^ -ean't to fatten it on '^h ' .4ro property of the Defendant, he muft necef- • '*""'tin/EvedrthTBriti(h LegiHature. they To p-erfonal Eftate again ^^^ut^eyp.^^^^^^^^^^ >-h« laft ■^^f'°"f ,tl ^ft\°e X A"y one mayeafily per. nies into perfonal bltate aiio. "'J , . , • , r l ceive how much the Colonifts loft by this kmaot i.e ^'' WHOEVER coufiders this claufe of the Aft, along with Whoever coiiuu , • . -^ ^^j meant to defeat. : the feveral Colonial aits wmctt It wve th they -^r/r?hrA&K A'eZi^^ or could be i.n;. This Att emm c ^^^^^^,^^^^^ without diftmaion. .^^'fZZ,^\o^Prifaci.s^t ir ^uU K' InS c diti? 5 makfng i Negro 'all 1 1 ^hus ;fld. does not make h^ p-P-ty m the hands of the purchafer we muft ;^ander far out o 1 thefyftem of Englifti jurifprudence to find out wnaj n k »' lowed to pafs by Will, as pcrfonal Eftatc. They have al- ways found their way into Inventories both of teftatc and intcftate perfons. They have conftantly been made the fubjects of diftribution, under our Provincial law, as part of the Inteftate's perfonal Eftate. They have uniformly been fold hereunder Execution ; and, add to all this, they are and always have been fold, in the common courfe of traffic, as other chattel interefts are or were fold, and warranted by the bill of fale to be the property of the feller. If I could be excufed a little fyllogiftic pedantry, I would make this part of the argument to ftand thus. Trover will lie for any chattel that is legally made the fubje6t of property. But Negroes are, by exprefs A61 of Parliament, made the fubje6ls of property in this Province. Therefore, Trover will lie for a Negro in this Pro- vince. I am now prepared to enter upon the other point of confideration, which has nothing further for its object, thanjuft to obviate fuch obje6Vions as have already flood, or may in future ftand in the way of the fore- going reafoning. To prove that Trover does not lie for a Negro in the Plantations, the cafe, Smith vs. Gould, in 2. Salk. 666, has been cited and wholly relied on. The fame cafe is reported in Ray. 1274. But when we look into this Cafe, and accurately attend to the reafoning of the Court, we Ihall find it only to prove, that fuch an action would not lie for a Negro in England. Now, before I can be brought to think the cited Cafe to prove any thing a- gainft the prefent adion, it muft clearly be fhewn me, that there is no legal difference between the flate of a ^T £»<-»•»*/% «»■» T? tions Ifay the-C( • >'• not be words, " i" Englan " capable i « ever is • " remain . and the ftate of one in the Planta- And this no Man can believe, who has read and duly cpnfidered the before cited authorities; [[ Men," fay <( 4 13 ey have al- afteftatc been made incial law, They have md, add to >ld, in the iterefts are e to be the ledantry, I md thus, gaily made nent, made n thisPro- er point of its object, Lve already f the fore- egro in the . Salk. 666, ame cafe is •k into this the Court, lion would »re I can be ly thing a- ihewn me, ; ftate of a the Planta- as read and Men," fay (( 1 V ,^Ptc nnd therefore can- jftyth.Court. "r^'^^^T :;;. or, in other l.^ot be the fobjeas of P';^'^;^^,„, he lands m words, ■■ as a Negro, l^e ^"> . ^ ^e then becomes ," England, becomes a 1 '^^^^' ' therefore, who- : .. capable alfo of aequ.rmg P;°Pf '^^., ^his, can never .. evl is rendejed capable of ^qmrmg ^^^ ^ I " remain the fubjea ot it. r concomitants, : .. of acquiring pix^perty, ^re ^'^f^ ^^,, a„d Wife." , .. and can no more be P^ f^.^fcUed one, where Me- I In the Cafe next P««dinS(^f !,^e If a Negro fold in ^ iitaMs was b>°"Sh*/°^"'Lld " that as foon as .England, "olt, Ch J JekU ^^^^ ^^^^ ., ^on- 'P^S:Stn^^K2^ei!Ve^^eaofpro- perty- ,. ., „f uk Lorddiip's cxpreflion m this ■ The peculiarity of l^" '^° f^" e more than a curfory laft cited Cafe, ^VP'^'l'ltsllZ^A iecome free as foon attention. If a ^eg'O ^oes >dcc ft ^^^ as he lands in England hen the^e ^^^^_ ^^ ^^^^^ difference between h^ >*"«' ''""^ ^ ftate of Slavery - is between a ftate of F^ f "^^t ttken in ^.r/ JW«/-v.. Were the two "ted Cafes W be ta ^^^^^ ^^ ^^^^ as I think they ought o^e taken ^ ^^ ^^^ ^^.^^^ to be fo far from Pf^'^S 7'7' '^egro in the Planta- aaion, to recover f « ,. °^ t^:irds proving it to tions, that they «""|° ^''VL making is not a torti- be the only proP"/^'°"''aiatter ftate of the Negro ous taking. The former and lane 1 ^^^^^^^,^^^ are dearly afcertained by the ^^ roperty, and ftate of Slavery, which ™»'f ^^^^i, i„,pi,es his being the other a ftate of J^^f ""L^ it can be made out, his own Man. Therefore, beforot ^^^^ .^ ^^^ that Trover will not ncioi --'j'--;^ property m the it muft be fhewn, that property oi no prop J^^.^^ I fubje6^ of an action of Trover, makes no difFcrcnce in the queftion, whether it is the propir or improper rc^ medy. The before mentioned Cafe of Smith vs. Brown and Cooper, when rightly underftood, may, I think, throw yet fomc additional light on this fubjea. The a^ion was, as I have already hinted, Jndebitatees for the price of a Negro fold in England. Whereas he aftually was, at the time of fale, in Virginia— Of courfe, had the falc been m Virginia, there could have been no objeaion to the anion's being brought in England. But though the fale aaually was in England, the Court held, that the adion would have been well brought, had the de- claration ftated a fale at London, ( .vhich was the truth of the Cafe) and that the Negro was then in Virginia, and that Negroes were faleable articles by the Laws of that Country. Had the Negro been in England at the time of fale, no fuch aaion could have been fullained j for accord- ing to the ftated axiom, that a Negro upon landing in England becomes free, the Negro then being a free Man, could no longer remain the fubje^ of fale. But ftill, while this fame Negro remained in Virginia,' he was a faleable article even in London j and all the Plaintiff had to do, was toadjuft his declaration to the real ftate of the Cafe. Surely this Cafe, if it proves any thmg, proves that the Negro was a Slave, and'there- fore property m Virginia. If property in Virginia, the lame Law that made him property there, makes him fo in Nova-Scotia. The converfion of any thing that can be the fubjed of an aaion of Trover, has alwavs been confidered by the Courts of Weftminfter-Hall,'to be the very point — Sr,^ vjaviitij, ii a. xvcgiO, vvinj vvas uc- tore a Slave, becomes a free Man as foon as he gets to England, Trover will not lie for him there, becaufe he thert I there ce ' believe, that th Hail, f( the latte ter. T than fol it can b( Man, c The Cooper, dealing, Cargoes to the r whatevc this day of Negi the Air cargo o in the! groes be could n ' the fub ; (ion the : is capal : Negroe Let i before-] ; curate 1 . " aaioi " any c "tice c *' By th ^^ 0«-*y\ 4-1-1 Sure commo iffcrcncft in iproper rc^ Brown and ink, throw rhe action r the price l:ually was, lad the falc bjeftion to lut though held, that lad the de- s the truth 1 Virginia, le Laws of me of fale, or accord- landing in ng a free of fale. — irginia, he id all the ion to the it proves md there- ginia, the ;es him fa le fubje(5t fidered by ery point o was be- le gets to ecaufe he thert there ceafes to remain a fubjecSt of property. Yet, I believe, no Man will, upon a little cool rcflcclion, fay» that this fame adion would not lie in Weftminfter- Hall, for the converfion of a Negro in Virginia, as in the latter place he was legally the property of his Maf^ ter. The truth is, a Negro can no more be converted than fold in England. Converted he cannot be, unlefs it can be made out, that a Negro, who is there his own Man, can be converted to the ufeof fome other Man. The authority of the Cafe, Smith vs. Brown and Cooper, hasbeeneftablifliedby acourfeof commercial dealing, from that time down to the prefent hour.— Cargoes of Negroes are conftantly infured from Africa to the Plantations ; and, with a very few exceptions, whatever may be infured may be fold. Therefore, at this day, Indebitatees would lie in England for a cargo of Negroes that were fold while the (hip was yet on the African coaft. But this adtion would not lie for a cargo of Slaves that were fold while the fhip was lying in the Thames. And for this plain reafon, becaufe Ne- groes becoming Freemen as foon as they reach England, could no more become fubjetfls of fale, than they could the fubje^s of converfion. And fubjects of conver- fion they could not be, becaufe nothing but property is capable of being converted to any Man's ufe. And Negroes, when in England, are not property. Let us recur, for a moment, to the report of the before-mentioned Cafe by Raymond. This more ac- curate Reporter makes the whole Court to fay, " this " adion does not lie for a Negro, no hiore than for " any other Man : For the common Law takes no no- "tice of Negroes being different from other Men.— " By the common Law no Man can have property in Surely this is no more than faying, that by the common Law of England, no Man then can have pro-- perty !6 peity in another. It cdii never be conftrued to m:AiU that oncMan cannot be the property of another in the Plantations : For this opinion is cxprefsly grounded on the common Law, " which takes no notice of Ne- *' grocs being different from other Men." But the Sta- tute Law does make a difference between them and other Men, while they yet remain in the Plantations, where they are fubjecl to the controuling authority of that Lavv. However, as none of thefe Statutes legalize the Importation of Slaves into Great-Britain, fo the com- mon Law, which ftill remains unaltered thcrey will not and cannot diftinguiih between them and other Men there . L\ Bacon's Abridgement, under title Trover, my idea of this matter will appear correftly right. His words are, " it has been holden, that a perfon cannot " have Inch a property in a Negro in England" (put- ting the latter word in Italics) " as will enable him to " maintain an aaion of Trover for the converfion of •' the NeG;ro ; and that he can only recover," [that is to fay, m^EuglanJ] " as he may in the cafe of any other '' lei vunt, damages for the lofs of his fervices." — This iL^ the abridged Cafe of Chamberlain vs. Harvey. Ray. 146. When he fpeaks of the Cafe more immediately un-r dcr confideration, he fays, " in a ftill later Cafe it has' *' been holden, that a Man cannot have fuch a pro- [ " perty in a Negro in England" (putting the latter word ' again in Italics) " as will enable him to maintain an '"aaion of Trover for the Negro." Surely I may, without putting any tone upon this author's words, fuppofe him to have meant, that although Trover would not lie for a Negro in England, where he is out of the i'cacn or tnc olululc x^aw 3 _y*-i. in tii^- x itxixv«>.iv.-u^, --. he is under the immediate operation *w the proper, if not the only proper of it, this actior^- a6ti«)n. Wha-? jec^, in that I h the Coi by Salk Ipeakin; markab " Slave " come •' in th Two ti Firff, t is or m lands ir coeds t( and ac( the cor " the I \ Hence I ble of I Planta E ' he gets \ devile, ful tra ed und proper took it as his and d( Th] pretty lage. '* deej " our " he 1 '' Lav to m:rHi,' ther in the grounded ice of Ne- u the Sta- 1 and otlier )ns, where ty of that egaUze the ) the com- e, will not other Men "rover, my ght. His fon cannot inci;' (put- ible him to nverfion of •," [that is f any other :es." — -This arvey. Ray. idiately un-, Cafe it has^ 'uch a pro- 1. latter word laintain an ely I may, or's words, •over would 5 out of the innc wrViPr^^ this actior^- What? j7_ "WiiAT the learned Blackftone fays upon this fub- jec^ in the 424th page of his Commentaries, will Ihew that I have had a right apprchcnlion ot the opinion ot the Court, as it (tands reported in the preceding Cafe by Salkeld and Raymond. This profound Lawyer, Ipeakinp of the abhorred ftale of Slavery, has thcic rc- markabtc words :— " And now it is laid down, that a " Slave or Negro, the inftant he lands in England, be- '« comes a Freeman ; that is, the Law will protcd hiin '' in the enjoyment of his perfon and his projicrty."--- Two things decidedly appear from this recited claulc. Firfi- that a Ncrro, before he lands in England, cither is or'may be a Slave. Secondly, that the inlhnt he lands in England, he becomes a Freeman. He next pro- ceeds to defcribethe dilfinguifiiing badges ot Freedom; and accordinglv he adds, that - the Law," (meaning the common Law of England) " will proteil him in '* the eniovment of his perfon and his property. — Hence it is clear, that a Negro, who had been incapa- ble of acquiring property, while remaining under the Plantation Laws,mavneverthelefs acquire property after he aets to England. He is now capable of taking by devife, or gift, no lefs than acquiring property by law- ful traffic. But this he could not do, while he remain- ed under a Plantationjurifprudence. Nor could he hold property acquired in England, after his return, if h"; took it along with him ; for then his property, as well as his perfon, fall immediately again under the power, and dominion of his owner. This fame learned author tells us before m p. 127, pretty nearly what he tells us in the before recited paf^ iVe. Here he favs, that " the fpirit of liberty is fo "deeply implanted'into our Conftitution, and rooted in " our very foil, that a Slave or a Negro, the moment " he lands in England, falls under the protection or me '* Laws, and fo far becomes a Freeman > though ms Mal- n "ters :8 n i&bi this laft pSflage it no leis appears that a Ne^ro before . he lands ni England, is a Slave. ^ "^ t]./r."r'''^"x! '''''"'P'' ^° ^^^= b^^" "^a^e, to make the Cafe of a Negro, and that of a villain, parallel qI On this head I woul.ljuft obfcrve, that the moftcha- raaenftic marks of difference which at prcfcnt occurs be X'le'" FW T''T" '^'■"''""■J. °f ^I-. f«m t" ^^^, , ^^'^^= a Villain was, at the worft of rimp^ cultom. Secondly, if he purchaled lands or eood- nnrf .tr'tf.'f *'"'!! '-f°'='-Lord hadlS ;po^ them, the laft purchafer would hold them againft the claim of h,s Lord. But neither of theii languid f arks ^/i'fl''T ^;'f"S to a Negro Slave. For if and ftould bedevtfed to fuch a Sllve, I apprehend t leMaf ter could not enter upon them, bui' that the heir at Law might enter, and claim them as an undifpofed Irt of the rea Eftate. I beheve it to have been Tgene^' ' y received opinion, even in New-England, whefe Slaves were treated with greathumanity, that they werrendlr couU n^:''.''^'r ^ '^r 'r g P'°P"'>' 'hemfel that t could not be derived througJi them to any one elfe In fliort, they were confiderld as incapable^ receivj;;; any thing, except through their Mafters : A d cwf? quently their Malbrs could not receive any thin" hroulh coom' ^^«P,"'""f "ing^^andfervices. No Man who :3 but verv foinf ? '^""S. that the ftate of a villain M ir^ ',""? analogous to that of the former No Man who has the lawful poffellion of good 'can a^dr:fufifV'r^^i?\°' T"^^--' »'" afte?demand oftheaaion;.Hftni^-T;(^-3--yP^^ thtr 1 the Lav If a Jar . ^land, IS admi J could h llaid: A j which I Mafter I while h langua£ vices.— " ces oi " fon ?• ways ii Negro I i protefti I be prop ? propert be non "Bu " it tha ^ Let Bi "with I " acqui I " mas, I " of 1^ ;'^ Now, 1 ^ of Joh I fion; f I iervices ' *' not t " this i 4 means, J u nam." By •gro, before ie, to make parallel Ca- c moft clia- fent occurs 211, feem to 1 of times, nmemorial goods, and ized upon igainft the ;uid fparks )r if lands 1 the Maf- he heir at pofed part a general- lere Slaves ;re render- 'es, that it ne elfe. — F receiving nd confe- g through ^4an, who in all the F a villain rmer. oods, can • demand > conver- -ry point ntioul of the the Laws of the Country where the converfion happens. If a Jamaica gentleman brings his Slave over to En- gland, and anothei" takes his Slave into his fcrvicc, it IS admitted the o\/ner cannot maintain Trover for him there. The rcafon is obvious — becaufe the Mafter could have no property in him where the converfion is laid : And no Man can bring Trover for any thing ia which he has no property. But ftill, although the Mafter has no property in the perfon of the Negro, while he remains in England, he may, in the cautious language of Blackftone, poffibly retain a right to his fer- vices. — '* But can a Mafter remain intitled to the fervi- •' ces of a Negro, and yet have no property in his per- " fon ?" He alfuredly may : For although property al- ways implies a power of difpofing of it, yet, when a Negro lands in England, he is, co inftanti^ under the prote6lion of the common Law, and therefore ceafcs to be property there. He is now capable of acquiring property, and of difpoftngof it afterwards; which would be- nonfenfe, if he was not owner of himfelf. *' But if he is truly owner of himfelf, how happens " it that another Man fliould be intitled to his fer vices ?" Let Blackftone anfwer the queftion. — ** Yet," fays he, " with regard to any right which the Mafter may havtf " acquired to the perfonal ferviccs of John or Tho- " mas, this will remain cxadVly in the fame ftate as be- " fore J for this is no more than the fame fubje6lion for " life, which every Apprentice fubmits to for the fpacc " of fevcn years, or ibmetimes for a longer term." — » Now, the Mafter did not acquire the perpetual fervice cf John or Thomas, by his or their perfonal fubmif- fion J for they never fubmitted either their j)erfons or fervices to any Mafter, as Apprentices do. '' Yet, are " this great Man makes to be fimilar ones ?"— By no means, if this author is rightly underftood : For he plainly 20 plainly means ar/W-zto H ciyiccs ccqiiWcd in the Planta- tion.s, and iin<|,M- the oj.aation vi(a) Plantation I Wh Kngliuui •^■icaii, in I'.nciiuui. no luci aws. h light could be acquired wjthour the conlent of the jjartv. Ihc whole rearon- ing,on this part of thj fubjcct, 'amounts to but fimply tins.--" As an Apprentice, in J ngland, can yield big <, p!'''^^^ ^^ ^ ^^^'^^^-i' ^«^- i't^vcn or more years ; To the ^^ iJai- station Laws give the Malku- of a Negro, while ^^ the latter IS lefident in the Plantations, a right as ^^ well to the perlon as to the ferviccs of the Slave — ^^ l^iit when the fame Negro lands in England, the ^^ 1 lantation Laws ceafe to make him the ablohire pro- ^^ perty of his Mailer, fo as to be fold as an aiticle of .c ^'ei l^^^'-'^^'^''^ ^^y tlw common Law, r.oMancan be ^^ a blavcin England. Yet, as the Laws of the Realm ^^ clo admit of i)erlons yielding thciryfrwW'itoa Malhri ^^ lo the Hantation Laws fhail ftill lb far affea the Ne- ^^gio, even while in England, as to Intitlc his Maftcr to his ierviccs, although thcv are perpetual."— It ihould becarclully noted, that the Well-India Planter ac- quires no property cither in the pcr/bn or fervices of tiie JNegro, alter the latter becomes relident in En- gland ; tor, by the common Law of the Realm, he could acquire none, unlcfs by the Negro's voluntary confent It is, therefore, by the Statute Law, which extends to the I lantations, but not to England, that the Mafl tci ItUl retains an intcrea even in the ferviccs of th- i\egro. The truth i.s, the fame Statute Law which rave liim a right to the perfon of the Negro, wliile in la- rnaica, leaves him only [nritled to the ferviccs of the ^egrc, while he is refid'.Y.r •. Englan I. Both riHits are acquired by the faia^ Statute Law, though this lame Law T^l^lItTT'l ^r"'' ''\T '"""' L'wsm.de byanv of :hc Colo- ^•Iri- s :,^" A^ '^^^"^ i--i'--'t which afF-ft the Planta. )Law c itfelft Th jcalou that t iiiuku Hence gated ( A^lcc ing ar fpe'fls gulati chant; V.'ithir taking traffic tions the ej( ihejei mon never of its is, thj no M gland bccon that • the A for, i and k he cai by thi altere Man flult *; can I the Planta- tation Laws, be acquired hole realbn- obut fimply :an yield his -'a IS J io the s^egro, while i, a 1 ight as the Slave. — ngland, the hlohitc pio- m aiticle ot Man can be f the Realm to a Maimer i Feet the Ne- ■: his Mafter "— Itihould Planter ac- fervxes of ent in Kn- m, he could uy con fen t. ich extends t the Maf. 'ices of the which gave hile in Ja- 'ices of tlic 3oth rights ;h this lame Law of the Colo- ft the IManta ion LauSy or 2f - ■ I* )Law operates varioufly on the Negro, accommodating irfelf to the c ffcrcnt places 1 1 ir > refidencc. The common J. aw Conns have always difpiiycd fo jealous a regard tor the common Law of the Realm, that they may, without canying the cxpr- (lion to any undue length, be called the Guardians of that Law. — Hence it is, thefc Courts will never fuHer it to be abro- gated or altered, even by Acl of Parliament, unlefsthc A Jl contains words, of unequivocal interpretation, Ihew- ing an intention that it fhould be altered in certain re- fpe6fs. And hence it is, that aUhou^rh thele Acts re- gulating the African trade, do permit Englilh mer- chants to fend their vellels from any of the ports V.'it!)in the Realm, to the coafts of Africa, and after taking in there cargoes of Slaves and other article, of traffic, to carry the Slaves to any jart of the I'lanta- tions (and where they have a right to carry them by the exprefs wordu of thole AcU). Yet, fuch has been ihejealcufy of the common Law Couts over the com- mon Law of the Realm, that the A'rican trader has never yet been permitted to bring his blaves within any of its '^orts. The plain and obvious n afon of all this, is, that England is not named in thole Acts. And as no Man, l)y the common Law, can be i Slave in La- gland, fo thefe fame Slaves, when once hey land //jcr^, become Freemen as to th6v pef Jons. Kcnce it appears, that the trader, after he has purchafed his Slaves on the African coalf, becomes theabfoluteov nerof them ; for, if a Man has not a property in wha: he can buy and fell, he cannot be the owner of any thing. Yet he cannot bring this fame property to Eng uid, becaule by the common Law, which is not there abrogated or altered by any At\ of Parliament, the ];jrfon of no Man can be the property of another. Or, as C. J. tfult has it, '* Men may' be the owners, aud theretore *: cannot be the fubjecls of proncrty." From 22 Fr»m this view of the matter, a Britifh trader mav under the vano.s Ach, as well encouraging as r^Il latmg the A rican trade, become the abfoktte ownef of ti^T',"-^"' °V^' '°''^' "f Africa, or in any of the Plantations. But the common Law of Eneland mTu^l^ir "'"^ °' '''' 'J'"' '^^-' *"° f^'- operate' a" a manumiffion, as to tranfmute tlie Maftcr's •i.^ht to his perfon. mto a bare right to his fcrviccs. Yet on the return of the Negro fo any of the Plantations he ? apprehend, ,s out of the tranfmuting operation of the common Law, and confequently falls again under he STsKr °' 'J:J ''4' Law,'rhich tak sL^.t r , r- n- °^ '=°"'^'' t''e 'efidence of the Slave m England, affeas only a temporary fufpenfion vcr thuttE ^^ remarks, one may eafily difco- vei, tnai the Matter s claim to a Negro while in the Plantations ,s not the {kme that it is'while he s refi t tled't"o thf r"'- 'V^' ^^"^^ -'"^' '"= Mafe : ion. In the Plantations, he is intitled to both Now ftould h':.'""' ''T''' '° =■ ^^Sal eye, that the Maft^; in h^ P •^'^'°" "'"'^ 'appropriating for a Negro " the Plantations, than he could have in Entland ^t IcftV;,":; r;.*^' ■? ""/^™^'- ^eVafteS iio jcis a u at to the perfon of his Nesro than to hi<; torre;xt:':ny" *^ '^"- "-« ^''^"- ^' ^-^""d thinr ''^^'"' "^1"°^^' °nly ■■> common foiefi-^ht of P al; fH h"'^ '^^'•'° ''^^^"" '^"S"^ <^f wha is ho PI,. i\- ' "^ '^°"%"entlr fa eabic articles in th? trfrbv^H""^^' "^"^'^'-'^'"^ ^^' of Pariiamem Jt IS kui by the abettors of the motion thit :f r- ahon more appropriatmg than an . lion A^'t./^," •"""" '"""" "■'^"Id 'ie for a Negro, the M^afteSt to I trader may, ;ing as regu- ute owner of >r in any o{ of England, operates as a i right to his Yet, on the itions, he, I ation of the n under the hich makes ence of the fufpcnfion^ cafement. eafily difco- hile in the e he is refi- lafter is in- to his per- th. Now, the Mafter or a Negro England, Mafter had :han to his is intitled >re fight of hat is ho- de articles les in the arliament. tta^jL if aiij br's right tQ to his pcrfon is extinct : For this aaion Is, in the very nature of it, appropriate only to the cafe of a Servant or an Apprentice, in whofe perfon the Mailer has no direa property. Their ferviccs, indeed, the Mafter has a right to ; and therefore, if they are inticed away and detained, this adion accommodates itfeif to the reco- very of damages for the lofs of thofe fcrvices. And if H is once lolcmnly adjudged here, on the ftrcngth of Blackftone, and the cafe of Smith vs. Gould, that no action more appropriating would lie, the Negro wouW be exaaiy in the fame lituation here, that a Neero IS in London, where he is no more a faleable article tlian a Servant, or indeed any other Man. Should a Man here, therefore, be difpofe4 to fell his Neero, he might probably feek for a purchafer in vain. But ad- mitting fome body or other might rifk the purchafe of liim, he flill mult be delivered on a Meas corpus, as a- ny other Servant in England would be, fhould his Maf- ter there take it into his head to Yell him as his proper- Yet even this is not quite all : For fuch a judo-ment on the motion would operate as aji efj^clual repeal of tiie 5. Geo. 2 which, as has been already remarked, makes perfona Eftate of Negroes in the Plantations and fubjecls them to be fold, as fuch, under a fieri Jaaas at the fuit of Englilh creditors. I am therefore clearly of opinion, that an action of Trover, on the Cafe ftated, is the proper action, if not tne only proper one. The Attorney-General's Opinion. I AM of opinion, that an adion of Trover was the proper form of aftioa for Mr. Delancv to recover the value of his Negro Slave. I concur fo ^entir.k wJt-N Mr Aphn, in the very able opinion which he has" given up- on the fubjea, that I cannot do better than generally refer 24 reter to his leafoning. It appears to me, that the legal intcrence which he draws from the 5. Geo. 2. C. 7. an apphcable to this queiiion, i: qjliite irresistible AND UNANSWERABLE. T/je Opi77icT: of Mr. Tidd. I AM of opinion, that under the circiimftances of this Cafe, an action of Trover was the proper torm of adion for the recovery of the value of the Slave in quc'lion. In order to maintain this action, three things are necelfary to be proved. Fu-i'i, property in the Plain- tiff. Secondly, pollefiion in the l^efendant. And, third- ly, a converfion. 1 HE great ciiteiion of property, is the power of dif- pofmg of it : A^nd it appears from the very able opi- nion of Mr. Aplin, and the Ads of Pailiament and Cafes he refers to, that in the Plantations and Colonies in America, as well as in the Weil-India Illands, Slaves are confidered as falcable property — that they pafs by Willyt^rgo to the next of kin, in caie of an Intefta- cy, and that they may be taken in Execution to anfwer the owner's Debts. Considering a Slave, then, as faleable property, I think there can be no doubt but that an aftion of Tro- ver might be maintained for the recovery of his value, upon proofs that became to tlie poii'eflion of, and was converted by, the D.-fendant. Suppofmg the Sheriff, under an Execution authorized by the Stat. 5. Geo. 2, C. 7. were to take and difpofc of a Slave not belonging to the Defendant, can it be faid that an a6lion of 1 ref- pafs, or Trover, would not lie againft him ? Or, that fuch an action vyoiild not lie asfainll the Defendant, or a thud pcrfon, for taking away and difpofmgof aSlave, which the Slieriff had rightfully taken under fuch an Execution r As in the Cafe of Welbraham vs. Snow, ^ Saund, lat the legal 2. v^. 7. a? RESISTIBLE mftances of iper iorm of le Slave in three things n the Plaiii- And, third- )Owcr of dif- ry able opi- liament and ind Colonies ands, Slaves they pafs by_ an Intefta- m to anfwer property, I lion of Tro- of his value, of, and was the Sheriff, 5. Geo. 2, C. belonging to ion of Iref- n ? Or, that defendant, or ig of a Slave, ider fuch an vs. Snow, i^ Saund, Saund. 47. — See alfo 2. Ld. Ray. 1073, and Gilbert's ^x'ec. 15. A fpecial a(?lion of the Cafe, v^hich might perhaps }iavc been maintained for detaining the Slave per quod K^ervitium amisit, would have been founded upon the idea, that the Plaintiff was only intitled to his fervices. But in truth it appears, that he was intitled to fome thing more, namely, to the property in him and right of dispojing of him. And, upon that ground, I think an acVion of Trover was the proper form of action. And, indeed, a fpecial action on the Cafe would not, in the -UrS^^^X^^ actual converfion, be an adequate remedy ; as the damages, in that Cafe^^ would not arifefrom the detention of the Slave. — The Cafe referred to in 2. Salk. 666, and 2. Ld. Ray. 1274, is not, I think, applicable to the prefent queftion, for the reafons ftated in Mr. Ap- lin's opinion. The only doubt feems to f)e, whether there was a proper demand and refufal trt the Slave, previous to the commencement of the a6lion ? Or, whether the Evidence Ifatcd was fufHcient to authorize the Jury in finding a converfion r — But, as they have found it, that confideration cannot be material on a motion in arreft of judgment. The Opinion of Mf'k Percival, I AM of opinion, that an action of Trover was the proper aT:ion for Mr. Delancy to recover the value of his Negro Slave. 1 concur fo intirely with Mr. Aplin, in the very able opinion which he has given upon the fubje:^, that I cannot do better than generally refer to his re libai 1 ;. —It appears to me, that the legal infer- ence which hj draws from 5. Geo. 2.C. 7. as applicable to this queition, is quite irresistible and uNAtj- ■5WERABLE. FINIS.