"We cannot allow the colonies to check or discourage in any degree a traffic so beneficial to the nation."
I say, then, that down to the very moment when our independence was won, slavery, by the statute law of England, was the common law of the old thirteen colonies. But, sir, my task does not end here. I desire to show you that by her jurisprudence, that by the decisions of her judges, and the answers of her lawyers to questions from the Crown and from public bodies, this same institution was declared to be recognized by the common law of England; and slaves were declared to be, in their language, merchandise, chattels, just as much private property as any other merchandise or any other chattel.
A short time prior to the year 1713, a contract had been formed between Spain and a certain company, called the Royal Guinea Company, that had been established in France. This contract was technically called in those days an assiento. By the treaty of Utrecht of the 11th of April, 1713, Great Britain, through her diplomatists, obtained a transfer of that contract. She yielded considerations for it. The obtaining of that contract was greeted in England with shouts of joy. It was considered a triumph of diplomacy. It was followed in the month of May, 1713, by a new contract in form, by which the British Government undertook, for the term of thirty years then next to come, to transport annually 4800 slaves to the Spanish American colonies, at a fixed price. Almost immediately after this new contract, a question arose in the English Council as to what was the true legal character of the slaves thus to be exported to the Spanish American colonies; and, according to the forms of the British constitution, the question was submitted by the Crown in council to the twelve judges of England. I have their answer here; it is in these words:
"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.