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* CHAPTER X.

OF THE CONSTITUTIONAL PROTECTIONS TO PERSONAL LIBERTY.

ALTHOUGH the people from whom we derive our laws now possess a larger share of civil and political liberty than any other in Europe, there was a period in their history when a considerable proportion were in a condition of servitude. Of the servile classes one portion were villeins regardant, or serfs attached to the soil, and transferable with it, but not otherwise, while the other portion were villeins in gro88, whose condition resembled that of the slaves known to modern law in America. How these people became reduced to this unhappy condition, it may not be possible to determine at this distance of time with entire accuracy; but in regard to the first class, we may suppose that when a conqueror seized the territory upon which he found them living, he seized also the people as a part of the lawful prize of war, granting them life on condition of their cultivating the soil for his use; and that the second were often persons whose lives had been spared on the field of battle, and whose ownership, in accordance with the custom of barbarous times, would pertain to the persons of their captors. Many other causes also contributed to reduce persons to this condition. At the beginning of the reign of John

1 Litt. § 181 ; 2 Bl. Com. 92. • a sort of people who were in a con“ They originally held lands of their dition of downright servitude, used lords on condition of agricultural ser- and employed in the most servile vice, which in a certain sense was works; and belonging, they and their servile, but in reality was not so, as the children and effects, to the lord of the actual work was done by the theows, soil, like the rest of the stock or cattle or slaves. . . . They did not pay rent, upon it.'” Reeves, History of Engand were not removable at pleasure; lish Law, Pt. I. c. 1. they went with the land and rendered 8 For a view of the condition of services, uncertain in their nature, the servile classes, see Wright, Doand therefore opposed to rent. They mestic Manners and Seutiments, 101, were the originals of copyholders.” 102; Crabbe, History of English Law Note to Reeves, History of English (ed. of 1829), pp. 8,78, 365; Hallam, Law, Pt. I. c. 1.

Middle Ages, Pt. II. c. 2; Vaughan, 2 Litt. § 181 ; 2 Bl. Com. 92. Revolutions in English History, Book " These are the persons who are 2, c. 8; Broom, Const. Law, 74 et seq. described by Sir William Temple as

it has been estimated that one-half of the Anglo-Saxons were in a condition of servitude, and if we go back to the time of the Conquest, we find a still larger proportion of the people held as the property of their lords, and incapable of acquiring and holding any property as their own. Their treatment was such as might have been expected from masters trained to war and violence, accustomed to think lightly of human life and human suffering, and who knew little of and cared less for any doctrine of human rights which embraced within its scope others besides the governing classes.

It would be idle to attempt to follow the imperceptible steps by * which involuntary servitude at length came to [* 296] an end in England. It was never abolished by statute,? and the time when slavery ceased altogether cannot be accurately determined. The causes were at work silently for centuries; the historian did not at the time note them; the statesman did not observe them; they were not the subject of agitation or controversy; but the time arrived when the philanthropist could examine the laws and institutions of his country, and declare that slavery had ceased to be recognized, though at what precise point in legal history the condition became unlawful he might not be able to determine. Among the causes of its abrogation he might be able to enumerate: 1. That the slaves were of the same race with their masters. There was therefore not only an absence of that antipathy which is often found existing when the ruling and the ruled are of different races, and especially of different color, but instead thereof an active sympathy might often be supposed to exist, which would lead to frequent emancipations. 2. The common law presumed every man to be free until proved to be otherwise; and this presumption, when the slave was of the same race as his master, and had no natural badge of servitude, must often have rendered it extremely difficult to recover the fugitive who denied his thraldom. 3. A residence for a year and

1 Hume, History of England, Vol. more of this kind of servitude. And I. App. 1.

see Crabbe, History of English Law ? Barrington on the Statutes (3d (ed. of 1829), 574. This author says ed.) 272.

that villeinage had disappeared by the & Mr. Hargrave says, at the com- time of Charles II. Hurd says in mencement of the seventeenth century. 1661. Law of Freedom and Bond20 State Trials, 40; May, Const. Hist. age, Vol. I. p. 136. And see 2 Bl. c. 11. And Mr. Barrington (On Stat. Com. 96. Lord Campbell's Lives of 3d ed. p. 278) cites from Rymer a the Chief Justices, c. 5. Macaulay commission from Queen Elizabeth in says there were traces of slavery unthe year 1574, directed to Lord Burgh- der the Stuarts. History of England, ley and Sir Walter Mildmay, for in- c. 1. Hume (History of England, quiring into the lands, tenements, and c. 23) thinks there was no law recogother goods of all her bondinen and nizing it after the time of Henry VII., bondwomen in the counties of Corn- and that it had ceased before the wall, Devonshire, Somerset, and Glou- death of Elizabeth. Froude (History cester, such as were by blood in a of England, c. 1) says in the reign of slavish condition, by being born in Henry VIII. it had practically ceased. any of her manors, and to compound Mr. Christian says the last claim of with any or all of such bondmen or villeinage which we find recorded in bondwomen for their manumission our courts was in 15th James I. Noy, and freedom. And this commission, 27; 11 State Trials, 342. Note to he says, in connection with other cir- Blackstone, Book 2, p. 96. cumstances, explains why we hear no

a day in a corporate town rendered the villein legally free;? [* 297] so that to him the towns constituted cities of * refuge.

4. The lord treating him as a freeman, — as by receiving homage from him as tenant, or entering into a contract with him under seal, – thereby emancipated him, by recognizing in him a capacity to perform those acts which only a freeman could perform.

5. Even the lax morals of the times were favorable to liberty, since the condition of the child followed that of the father;? and in law the illegitimate child was nullius filius, - had no father. And, 6. The influence of the priesthood was generally against slavery, and must often have shielded the fugitive and influenced emancipations by appeals to the conscience, especially when the master was near the close of life, and the conscience naturally most sensitive. And with all these influ

1 Crabbe, History of English Law Crabbe, History of English Law (ed. (ed. of 1829), p. 79. But this was of 1829), p. 78; Hallam, Middle Ages, only as to third persons. The claim Pt. II. c. 2. of the lord might be made within 3 In 1514, Henry VIII. manumitted three years. Ibid. And see Mackin- two of his villeins in the following tosh, History of England, c. 4. words : “Whereas God created all

2 Barrington on Statutes (3d ed.), men free, but afterwards the laws and 276, note ; 2 Bl. Com. 93. But in customs of nations subjected some the very quaint account of “ Villein- under the yoke of servitude, we think age and Niefty,” in Mirror of Jus- it pious and meritorious with God to tices, $ 28, it is said, among other manumit Henry Knight, a tailor, and things, that “those are villeins who John Herle, a husbandman, our naare begotten of a freeman and a nief, tives, as being born within the manor and born out of matrimony." The of Stoke Clymercysland, in our county ancient rule appears to have been that of Cornwall, together with all their the condition of the child followed issue born or to be born, and all their that of the mother ; but this was goods, lands, and chattels acquired, changed in the time of Henry I. so as the said persons and their issue

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ences there should be noted the further circumstance, that a class of freemen was always near to the slaves in condition and suffering, with whom they were in association, and between whom and themselves there were frequent intermarriages, and that from these to the highest order in the State there were successive grades; the children of the highest gradually finding their way into those below them, and ways being open by which the children of the lowest might advance themselves, by intelligence, energy, or thrift, through the successive grades above them, until the descendants of dukes and earls were found cultivating the soil, and the man of obscure descent winning a place among the aristocracy of the realm, through his successful exertions at the bar, or his services to the State. Inevitably these influences must at length overthrow the * slavery (* 298] of white men which existed in England, and no other ever became established within the realm. Slavery was permitted, and indeed fostered, in the colonies; in part because a profit was made of the trade, and in part also because it was supposed that the peculiar products of some of them could not be profitably cultivated with free labor ;8 and at times masters brought their slaves with them to England and removed them again without question, until in Sommersett's Case, in 1771, it was ruled by Lord Mansfield that slavery was repugnant to the common law, and to bring a slave into England was to emancipate him.4 shall from henceforth by us be free ecclesiastics, multiplying presumpand of free condition.” Barrington tions and rules of evidence consonant on Statutes (3d ed.), 275. See Mack- to the equal and humane spirit which intosh, History of England, c. 4. breathes throughout the morality of Compare this with a deed of manu- the Gospel. Hume (History of Engmission in Massachusetts, to be found land, c. 23) seems to think emancipain Sumner's Speeches, II. 289; Me- tion was brought about by selfish conmoir of Chief Justice Parsons, by his siderations on the part of the barons, son, 176, note.

and from a conviction that the re1 Wright, Domestic Manners and turns from their lands would be inSentiments, p. 112.

creased by changing villeinage into 2 Macaulay (History of England, socage tenures. c. 1) says the chief instrument of 8 Robertson, America, Book 9; emancipation was the Christian relig- Bancroft, United States, Vol. I. c. 5. ion. Mackintosh (History of England, 4 Lofft, 18; 20 Howell State Trials, c. 4) also attributes to the priesthood 1; Life of Granville Sharp, by Hoare, great influence in this reform, not only c. 4; Hurd, Law of Freedom and by their direct appeals to the con- Bondage, Vol. 1. p. 189. The judgscience, but by the judges, who were ment of Lord Mansfield is said to The same opinion had been previously expressed by Lord Holt, but without authoritative decision. In Scotland a condition of servitude continued to a later

period. The holding of negroes in slavery was indeed [* 299] held to be illegal * soon after the Sommersett Case; but

the salters and colliers did not acquire their freedom until 1799, nor without an act of Parliament. A previous statute for their enfranchisement through judicial proceedings had proved ineffectual.3

The history of slavery in this country pertains rather to general history than to a work upon State constitutional law. Throughout the land involuntary servitude is abolished by constitutional amendment, except as it may be imposed in the punishment of crime. Nor do we suppose the exception will permit the convict to be subjected to other servitude than such as is under the control and direction of the public authorities, in the

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have been delivered with evident re- 1 " As soon as a slave comes into luctance. 20 State Trials, 79; per England, he becomes free; one may Lord Stowell, 2 Hagg. Adm. 105, 110; be a villein in England, but not a Broom, Const. Law, 105. Of the slave." Holt, Ch. J., in Smith 0. practice prior to the decision Lord Brown, 2 Salk. 666. See also Smith Slowell said: “ The personal traffic in v. Gould, Ld. Raym. 1274; s. C. Salk. slaves resident in England had been 666. There is a learned note in as public and as authorized in London Quincy's Rep. p. 94, collecting the as in any of our West India Islands. English authorities on the subject of They were sold on the Exchange, and slavery. other places of public resort, by par- 2 39 Geo. III. c. 56. ties themselves resident in London, May's Const. Hist. c. 11. and with as little reserve as they 4 Amendments to Const. of U. S. would have been in any of our West art. 13. See Story on the ConstituIndia possessions. Such a state of tion (4th ed.), c. 46, for the history of things continued without impeach- this article, and the decisions bearing ment from a very early period up to upon it. The Maryland act for the nearly the end of the last century.” apprenticing of colored children, which The Slave Grace, 2 Hagg. Adm. 105. made important and invidious disIn this case it was decided that if a tinctions between them and white slave, carried by his master into a children, and gave the master propfree country, voluntarily returned with erty rights in their services not given him to a country where slavery was in other cases, was held void under allowed by the local law, the status of this article. Matter of Turner, 1 Abb. slave would still attach to him, and U. S. 84. This thirteenth amendthe master's right to his service be ment conferred no political rights, resumed. Mr. Broom collects the au- and left the negro under all his politthorities on this subject in general, in ical disabilities. Marshall v. Donovon, the notes to Sommersett's Case, Const. 10 Bush, 681. See also United States Law, 105.

v. Cruikshanks, 94 U. S. Rep. 542.

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