"Let us now see how far these principles were applicable to New Hampshire, at the time of issuing the charter to Pawlet.
"New Hampshire was originally erected into a royal province in the thirty-first year of Charles II., and from thence until the revolution continued a royal province, under the immediate control and direction of the crown. By the first royal commission granted in 31 Charles II., among other things, judicial powers, in all actions, were granted to the provincial governor and council, 'So always that the form of proceeding in such cases, and the judgment thereupon to be given, be as consonant and agreeable to the laws and statutes of this our realm of England, as the present state and condition of our subjects inhabiting within the limits aforesaid (i.e. of the province) and the circumstances of the place will admit.' Independent, however, of such a provision, we take it to be a clear principle that the common law in force at the emigration of our ancestors, is deemed the birthright of the colonies, unless so far as it is inapplicable to their situation, or repugnant to their other rights and privileges. A fortiori the principle applies to a royal province."—(9 Cranch's U. State's Reports, 332-3.)
[6] Somerset v. Stewart.—Lofft's Reports, p. 1 to 19, of Easter Term, 1772. In the Dublin edition the case is not entered in the Index.
[7] Have parliament the constitutional prerogative of abolishing the writ of habeas corpus? the trial by jury? or the freedom of speech and the press? If not, have they the prerogative of abolishing a man's right of property in his own person?
[8] Mr. Bancroft, in the third volume of his history, (pp. 413, 14,) says:
"And the statute book of England soon declared the opinion of its king and its parliament, that 'the trade,'" (by which he means the slave trade, of which he is writing,) 'is highly beneficial and advantageous to the kingdom and the colonies.' To prove this he refers to statute of "1795, 8 and 10 Wm. 3, ch. 26." (Should be 1797, 8-9 and 10 Wm. 3, ch. 26.)
Now the truth is that, although this statute may have been, and very probably was designed to insinuate to the slave traders the personal approbation of parliament to the slave trade, yet the statute itself says not a word of slaves, slavery, or the slave trade, except to forbid, under penalty of five hundred pounds, any governor, deputy-governor or judge, in the colonies or plantations in America, or any other person or persons, for the use or on the behalf of such governor, deputy-governor or judges, to be "a factor or factor's agent or agents" "for the sale or disposal of any negroes."
The statute does not declare, as Mr. Bancroft asserts, that "the (slave) trade is highly beneficial and advantageous to the kingdom and the colonies;" but that "the trade to Africa is highly beneficial and advantageous," &c. It is an inference of Mr. Bancroft's that "the trade to Africa" was the slave trade. Even this inference is not justified by the words of the statute, considering them in that legal view, in which Mr. Bancroft's remarks purport to consider them.
It is true that the statute assumes that "negroes" will be "imported" from Africa into "England," (where of course they were not slaves,) and into the "plantations and colonies in America." But it nowhere calls these "negroes" slaves, nor assumes that they are slaves. For aught that appears from the statute, they were free men and passengers, voluntary emigrants, going to "England" and "the plantations and colonies" as laborers, as such persons are now going to the British West Indies.
The statute, although it apparently desires to insinuate or faintly imply that they are property, or slaves, nevertheless studiously avoids to acknowledge them as such distinctly, or even by any necessary implication; for it exempts them from duties as merchandize, and from forfeiture for violation of revenue laws, and it also relieves the masters of vessels from any obligation to render any account of them at the custom houses.