Chamberlain v. Harvey (1696)

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(Chamberlain v. Harvey)  5 different reports, two of them in Modern Reports, two by Lord Raymond, one by Carthew.

CARTHEW, 397 (90 Eng. Rep. 830).

TERM. S. HILL. 8 WILL. 3. B. R.                   

CHAMBERLAIN versus HARVEY.    Intratur Trin. 7 W. 3, adjudged Hillary 8.

Trespass, &c. for that the defendant vi & armis unum, AEthiopem (Anglice vocat’) a negro ipsius querentis pretii 100£. apud London’, &c. took and carried away, and kept the plaintiff out of possession of the said negro from that time usque diem exhibitionis billae praedict’ per quod he (the plaintiff) lost the use of his said negro.

[397] Upon not guilty pleaded, the jury gave a special verdict, the substance whereof was as followeth:

They find that the negro had been baptized after the taking, &c. and the matter was argued upon that point, (viz.) whether the baptism was a manumission, and as to that at the Court gave no opinion.

Sed oer Curiam, An action of trespass will not lie, because a negro cannot be demanded as a * chattel, neither can his price be recovered in damages in an action of trespass, as in case of a chattel; for he is no other than a slavish servant, and the master can maintain no other action of trespass for taking his servant, but only such which concludes per quod servitium amisit, in which the master shall recover for the loss of his service, and not for the value, or for any damages done to the servant.

Judgment quod querens nil capiat per billam.

Chamberlain v. Harvey, 1 Ld. Raymond 146 (91 Eng. Rep. 994)

HIL. TERM, 8 AND 9 WILL. 3          .

CHAMBERLAIN vers. HARVEY.

No man can have property in the person of another while in England. Therefore trespass will not lie, unless with a per quod, for taking a negro slave in England. Trespass lies for the taking an apprentice.

Trespass for taking of a negro pretii 1001. The jury find a special verdict; that the father of the plaintiff was possessed of this negro, and of such a manor in Barbadoes, and that there is a law in that country, which makes the negro part of the real estate: that the father died seised, whereby the manor descended to the plaintiff as son and heir, and that he endowed his mother of this negro and of a third part of the manor; that the mother married Watkins, who brought the negro into England, where he was baptized without the knowledge of the mother; that Watkins and his wife are dead, and that the negro continued several years in England; that the defendant seized him, &c. And after argument at the Bar several times by Sir Bartholomew Shower of the one side, and Mr. Dee of the other, this term it was adjudged, [147] that this action will not lie. Trespass will lie for taking of an apprentice, or haeredem apparentem. An abbot might maintain trespass for his monk; and any man may maintain trespass for another, if he declares with a per quod servitium amisit: but it will not lie in this case. And per Holt Chief Justice, trover will not lie for a negro, contra to 3 Keb. 785, 2 Lev. 201, Butts v. Penny.

Hill. 5 Will. & Mar. C. B. between Gelly and Cleve, adjudged that trover will lie for a negro boy; for they are heathens, and therefore a man may have property in them, and that the Court, without averment made, will take notice that they are heathens. Ex relatione m’ri Place.

Pasch. 5 Ann. B. R. Smith v. Gould, post, 1274, adjudged that it lies not.

Chamberline v. Harvey, 5 MOD. 182 (87 Eng. Rep. 596, 602

EASTER TERM, 8 WILL. 3. IN B.R.             .

EASTER TERM.

The Eighth of William the Third. In the King’s Bench.

Sir John Holt, Knt., Chief Justice. Sir Thomas Rokeby, Knt., Sir’John Turton, Knt.,

Sir Samuel Eyre, Knt., Justices. Sir Thomas Trevor, Knt., Attorney General.

John Hawles, Esq., Solicitor General.

[182] CASE 91. CHAMBERLINE against HARVEY.

Michaelmas Term, 7 Will. 3, Roll 123.

Court in trespass for a negro slave.-S. C. 3 Ld. Ray. 129.

London, to wit.-Be it remembered, that on Wednesday next after three weeks of

Saint Michael in this same term, before the lord the King at Westminster came

Willoughby Chamberline, Esq. by Godfrey Woodward his attorney, and brought here into the Court of the said lord the King then there his certain bill against Robert Harvey, Esq. in custody of the marshal, &c. of a plea of trespass; and there are pledges of prosecuting, to wit, John Doe and Richard Roe; which said bill follows in these words, to wit, London, to wit, Willoughby Chamberline, Esq. complains of Robert Harvey, Esq. in custody of the marshal of the Marshalsea of the lord the King, being before the King himself, for that the said Robert, on the first day of

September, in the year of our Lord 1695, with force and arms, one negro of him the said William, of the price of one hundred pounds of lawful money of England, at London, aforesaid, to wit, in the parish of the Blessed Mary of the Arches in the ward of Cheape, took and led away from him, and then and there detained and kept possession of the negro aforesaid from the said first day of September until the exhibiting of this bill, so that he the said Willoughby totally was without, and lost the use and benefit of the said negro for the whole time aforesaid, and other wrongs to the said Willoughby then and there did, against the peace of the said lord the now King, to the damage of him the said Willoughby, of one hundred and fifty pounds, and thereupon he brings suit, &c.

And the said Robert, by Robert Stone his attorney, comes and defends the force and injury when, &c. and saith, that he is not thereof guilty in manner and form as the said Willoughby above complains against him; and of this he puts himself upon the country, and the said Willoughby thereupon likewise: therefore let a jury thereupon come before the lord the King at Westminster on Thursday next after the morrow of All Souls; and who neither, &c. to recognize, &c. because as well, &c. The same day is given to the parties aforesaid, there, &c. Afterwards the process thereupon is continued between the parties aforesaid in the plea aforesaid, by the jury being respited thereupon between them, before the lord the King at Westminster until Thursday next after fifteen days of Saint Martin, unless the lord the King’s trusty and well-beloved John Holt, Knight, Chief Justice of the lord the King, assigned to hold pleas in the Court of the said lord the King himself, shall before come on Wednesday next after fifteen days of Saint Martin at Guildhall, London, by form of the statute, for want of jurors, &c. At which day, before the lord the King at Westminster, cometh the said Willoughby by his said attorney, and the said Chief Justice before whom, &c. hath sent here his record before him had in these words: Afterward, on the day and at the place within contained, before John Holt, Knight, Chief Justice of the lord the King, assigned to hold pleas in the Court of the said lord the King before the King himself, come as well the within-named Willoughby Chamberline, Esq. as the within-written Robert Harvey, Esq. by their attornies within contained ; and the jurors of the jury, whereof mention is within made, being called, certain of them, to wit, Thomas Sericole, Richard Martin, Samuel Stone, Benjamin Hodgson, Jeremiah Barrett, and Nathaniel Spinlow, came, and are sworn upon that jury ; and because the rest of the jurors of the same jury did not appear, therefore others of the by-standers, by the Sheriffs of London aforesaid, being chosen to this, at the request of the said Willoughby Chamberline, and by the command of the Chief Justice aforesaid newly appointed, whose names are affiled in the panel within written, according to the form of the statute in such case made and provided ; and the jurors so newly appointed, to wit, Thomas Pool, Richard Martin, Thomas Ward, John Watson, Philip Brewster and Richard Chauncey, being called likewise come, who being chosen, tried, and sworn to speak the truth concerning the matter therein contained, together with the other jurors aforesaid before impanelled and sworn, say upon their oath, that one Edward Chamberline, long before the within-written time when, &c. was seised of a certain plantation in the island of Barbadoes in the West Indies, in parts beyond the seas in his demesne as of fee, and of certain negro slaves, being slaves belonging and appertaining to the same plantation; and the aforesaid negro slave, long before the within-written time when, &c. was born within the island aforesaid of negro parents, slaves belonging and appertaining to the same plantation ; and that long before the within-written time when, &c. to wit, on the twenty-ninth day of April, in the year of our Lord 1668, by one William Willoughby, Deputy Governor, Council and Assembly, being the representatives of that island in that behalf lawfully authorized and commissioned at the island aforesaid, it was enacted in these English words following, Barbadoes, an Act declaring the negro slaves of this island to be real estates: whereas a very considerable part of the wealth of this island consists in our negro slaves, without whose labour and service we shall be utterly unable to manage our plantations here, thereby relieving our wants, and bring that considerable increase of revenue which this place affords to His Majesty’s coffers, as well here as in England; and whereas some law-suits have risen, and other great inconveniences have followed, where divers persons dying intestate have left their right and interest of their negro slaves to be by law disputed between their heirs, executors, and administrators, wherein the various judgments and affections of several Courts or jurors have sometimes found for one, and at other times for the other ; for a full remedy of these inconveniences, and to the intent that the heirs and widow who claim dower may not have bare lands without negroes to manure the same, and also that the condition, right, and interest of negroes to all other ends and purposes may be fully known and determined, the Deputy Governor, Council, and Assembly, being willing that all ambiguities herein should be removed, and the law in this case be declared and put in a certainty, have ordained and enacted by the Deputy Governor, Council and Assembly, and by the authority of the same, that from and after publication hereof, all negro slaves, in all Courts of Judicature and other places within this island, shall be held, taken and adjudged, to be estates real, and not chattels, and shall descend unto the heir or widow of any person dying, according to the manner and custom of lands of inheritance held in fee-simple ; provided always, that no person selling or alienating any of his or her negroes, is hereby held or obliged to cause such sale or alienation to be inrolled, as is accustomed to be done and required by the laws of this island, as in all other real estates; any usage, custom, or law, to the contrary notwithstanding. Provided this Act, or any-thing therein contained, shall not be taken and deemed to extend unto any merchant, factor or agent, bringing negro slaves to this island, and having the consignments of any slaves under them, but that in all respects they, their executors, administrators or assigns, may hold, possess, and enjoy, such slaves or negroes in such condition as they might have done before the making of this Act, until sale of such slave or slaves hath been made in the island, as by that Act more fully appears. And that the said Edward Chamberline, long before the said time when, &c. at the island aforesaid died seised of his like estate, of and in the plantation and negro slaves aforesaid thereunto belonging ; by and after whose death one third part of the plantation and negro slaves aforesaid, whereof the negro in the declaration aforesaid mentioned was one, decended to Mary, the widow and relict of the said Edward Chamberline, in the name of her dower, by the laws of the island aforesaid; and the reversion of the said third part descended to the said William Chamberline, as the son and heir of the said Edward ; and being so seised, the said Mary afterwards, and long before the time when, &c. took for her husband one John Witham, Knt. By which the said John Witham was seised in right of his said wife of one third part of the plantation and negro slaves for the term of the life of his said wife; and the said John Witham being so seised, the within-named negro, a true native, long before the within-written time when, &c. to wit, in the thirty-sixth year of the reign of Charles the Second, late King of England, brought within this kingdom of England, and afterwards, the said negro slave above-mentioned remained in the service of him the said John within this kingdom of England for the space of divers years, from that time and before the said time when, &c. according to the rites of the Church of England, but without the knowledge or consent of the said Willoughby Chamberline, there was baptized ; and that the said John Witham afterwards, and after the death of his said wife, but long before the said time when, &c. within this kingdom of England absolutely put the said negro slave out of his service ; and also afterwards, and before the said time when, &c. the said negro slave served other subjects of this kingdom of England, and at the within-written time when, &c. within this kingdom of England, was retained in the actual service of the said Robert Harvey, to take of the said Robert Harvey according to the rate of six pounds by the year for his wages in that behalf: but whether upon the whole matter aforesaid, by the jury aforesaid in form aforesaid found, the said Robert Harvey be guilty of the trespass within specified or not, the jurors aforesaid are wholly ignorant, and pray the advice of the Court here concerning the premises; and if upon the whole matter aforesaid,lby the jury aforesaid in form aforesaid found, it shall seem to the justices and the Court here that the said Robert Harvey be guilty of that trespass, then the said jurors say upon their oath, that the said Robert Harvey is guilty of the trespass aforesaid, as the said Willoughby Chamberline within complains against him; and they assess the damages of him the said Willoughby, by occasion of the trespass aforesaid, besides his costs and charges, to fifty pounds; and for his costs and charges three shillings and four-pence; and if upon the whole matter aforesaid, by the jury aforesaid in form aforesaid found, it shall seem to the same justices here that the said Robert Harvey be not guilty of the trespass aforesaid, then they the said jurors say upon their oath, that the said Robert Harvey is not guilty of the trespass aforesaid, as he the said Robert hath within in pleading alledged: and because the justices here are not yet advised, &c.

CASE 92. CHAMBERLINE against HARVEY.

Trespass will not lie for “taking and carrying away one negro slave of the price of, &e. so that the plaintiff was totally without, and lost the use and benefit of, the said negro, &c.” for by the laws of England one man cannot have an absolute property in the person of another man ; but, as under certain circumstances a man may have a qualified property in another, in the character of servant, &c. an action for taking him away, will, in such case, lie per quod servitium amisit.-S. C. Carth. 396. S. C. 1 Ld. Ray. 146. S. C. 3 Ld. Ray. 129.

Trespass for taking a-negro slave of the value of one hundred pounds; upon not guilty pleaded, the jury found a special verdict at the Guildhall in London:

That before the trespass committed, one Edward Chamberline was seised in fee of a plantation in Barbadoes, and of certain negro slaves thereunto belonging; that the negro now taken was born within the said island of negro parents, being slavesbelonging to the said plantation ; that an ordinance was made by the Deputy Governor, Council, and Assembly of the representatives in the said island, that the negro slaves there shall be real estates, and shall descend to the heir or widow as lands of inheritance, &e. ; that Edward Chamberline died seised, &c. after whose death one third

part of the plantation and negro slaves (whereof this negro was one) came to Mary, his widow and relict, as her dowry, and the reversion of the said thirds, and the two other thirds descended to the plaintiff, as son and heir of Edward Chamberline; that the said Mary afterwards married Sir John Witham, who thereupon was seised, in her right for her life, of one third part of the plantation and slaves; and being so seised, he did, in the thirty-sixth year of King Charles the Second, bring this very negro into England, where he continued in the service of the said Sir John Witham several years ; that he was baptized here, but without the privity or consent of the plaintiff; that after the death of the said Mary, Sir John Witham turned this negro out of his service, who afterwards served several other masters here, and at the time when the trespass was supposed to be committed, was in the service of the defendant, and had for his wages six pounds by the year. But whether, upon the whole matter, the defendant be guilty of the trespass, they refer to the Court.

A case like this never happened before.

[187] Three questions were made upon this verdict:

First, whether, upon this finding, there was any legal property vested in the plaintiff?

Secondly, if any such property be vested in him, then whether the bringing this negro into England be not a manumission, and the property thereby divested?

Thirdly, whether an action of trespass will lie for taking a man of the price of one hundred pounds?

As to the first, though the word “slave” has but a very harsh sound in a free and Christian country, yet perfect bondage has been allowed in such places. The power which naturally arises to the lord over such bondmen or slaves, is by reason of his supplying them with food and raiment during their lives, as a recompence for their labour: such is the usage of the island of Barbadoes. The jury have found a law there, which makes these slaves part of the real estate, and this negro was born of negro parents there. Now the children of such parents are slaves as well as they. So it was amongst the Romans; where both parents were aliens, the children were so too. This ordinance made in Barbadoes, being subject to the Crown of England, has the same force there as an Act of Parliament has here. Now if this had been the case of a villein here, the jury have found enough to make him regardant to a manor; in which, by the law of this land, the lord had so absolute a property, that if he were taken away, the party detaining him gained no property in him; for then the writ de nativo habendo must be brought against him, but it is only directed to the sheriff to take him wherever he may be found, &c. An action of troverwill not lie, except where the plaintiff has a property in the thing demanded. Now it cannot be denied but that trover will lie for a negro; for so was the case Butts v. Penny. It is true, there is no judgment entered in that case; that may be the fault of the attorney in not bringing in the postea (a). ¹(a) Trinity term, 9 Car. 2. 2 Lev. 201. 3 Keb. 785.

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  (a) Trinity term, 9 Car. 2. 2 Lev. 201. 3 Keb. 785.

Secondly, nothing here found amounts to a manumission or enfranchisement. [188] Manumission is defined by Littleton (b) ¹(b) Lit. sect. 204.

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  (b) Lit. sect. 204.

to be, when the lord makes a deed to his villein to enfranchise him, this is one kind of manumission; the other is, when the lord does some act which, in judgment of law, amounts to make his villein free, as by making a feoffment in fee to him, and delivering seisin accordingly, &c. It is true, he may have several temporary privileges whereby he may be exempted from tie seisin of the lord, as entering into religion, &c. but can in no case be enfranchised but where the lord is an actor; and even in such case, if the lord himself had enfranchised him by deed, cum totla sequela sua procreata et procreanda, this was not a sufficient manumission of such children which he had before the execution of the deed without special words, because they were villeins in possession at that time (c). ¹(c) Co. Lit. 137. Year Book, 5 Hen. 7, pl. 14 a. Bro. Abr. “Villenage,” pl. 26.

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  (c) Co. Lit. 137. Year Book, 5 Hen. 7, pl. 14 a. Bro. Abr. “Villenage,” pl. 26.

But here is nothing of the lord’s consent found in this verdict; but the contrary. Then the bringing of him into England by Sir John Witham will not make him free, because he was a trespasser in so doing; for he ought not to have removed him from the plantation to which he was regardant. If, therefore, taking him from the plantation was tortious, then the finding that he continued in his service, and that he was afterwards turned away, will not amount to a manumission. The chief question then is, whether baptism without the privity of the lord will amount to a manumission? Now if a bare consent, without any other act of the lord, will not be sufficient to make his villein free, so as to divest himself of that property which he had in him; then a fortiori, what the villein does without the consent of the lord, cannot acquire a manumission. That a bare consent alone is not sufficient, appears by my Lord Coke’s Commentary on Littleton (a), ¹(a) Co. Lit. 136 b.

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  (a) Co. Lit. 136 b.

and the authorities there cited in the margin, that if a neif regardant to a manor marry a freeman without the license of the lord, who afterwards makes a feoffment of the manor, and then her husband dies, the lord shall still have the neif, aud not the feoffee. If baptism should be accounted a manumission, it would very much endanger the trade of the plantations, which cannot be carried on without the help and labour of these slaves; for the parsons are bound to baptize them as soon as they can give a reasonable account of the Christian faith ; and if that would make them free, then few would be slaves.

[189] It was argued on the other side, that it is against the law of nature for one man to be a slave to another. It is true, that a man may lose his liberty by a particular law of his country, or by being taken in war, for there he owes his life to those who preserve him ; or where a man voluntarily sells himself for sustenance, or alimony; but no such thing is found in this verdict, and nothing shall be presumed but what is in favour of liberty. It is by the constitution of nations, and not by the law of nature, that the freedom of mankind has been turned into slavery: thus says Bracton (b), ¹(b) Bract. bk. 1, cap. 6.

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  (b) Bract. bk. 1, cap. 6.

Fiunt etiam servi liberi homines captivitate de jure gentium. But our laws are called libertates Anglice, because they make men free; and therefore even in the time of villenage here, the lord had not such an absolute property over his slave, but that in some cases that very slave might have an action against his lord; as an appeal for the death of his father: so where the lord was indebted to the testator of his villein, he might bring an action against him as executor; so might the neif have had an appeal of rape, being ravished by her lord (c). ¹(c) Littleton’s Tenures, sect. 189, 190.

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  (c) Littleton’s Tenures, sect. 189, 190.

If slavery in Barbadoes and villenage here were the same sort of servitude, the plaintiff may be seised of this negro as a villein in gross, or as regardant to the plantation; for there were but two sorts of villeins here, either in gross, or regardant to particular manors. Now this cannot be a villein regardant to the plantation, for then the plaintiff and his ancestors must be seised of this negro and his ancestors time out of the memory of man, which could not be, because Barbadoes was acquired to the English within time of memory; and he cannot be a villein in gross, because it is found that he was born of parents belonging to the plantation (d). ¹(d) Littleton’s Tenures, 181, 182.

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  (d) Littleton’s Tenures, 181, 182.

But if the plaintiff have any property in this negro, he must either have an absolute or a qualified property in him at the time of the trespass supposed to be committed. He could not have an absolute or general property, because by Magna Charta, and the laws of England, no man can have such a property over another. And if he had only a qualified property, then an action of trespass will not lie, but an action per quod servitium amisit.

[190] But if the plaintiff had any right to the servitude of this negro, that right is now divested by his coming into England; for the ordinance made in Barbadoes shall not make him so regardant to the plantation there, as to go to the heir, because that is only lex loci, and adapted to that particular place (as the law of Stannaries in Cornwall), and extends only to that country, so long as he is occupied in service on that plantation ; and if he be brought into another country where that law has no effect, that amounts to a manumission, so that the bringing him into England discharges him of all servitude or bondage, especially being turned out of the service of his master, and not allowed sustenance by him; for food and clothing are the only recompence for servitude. But being baptised according to the rite of the Church, he is thereby made a Christian, and Christianity is inconsistent with slavery. And this was allowed even in the time when the popish religion was established, as appears by Littleton (a); ¹(a) Sect. 202.

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  (a) Sect. 202.

for in these days, if a villein had entered into religion, and was professed, as they called it, the lord could not seize him; and the reason there given is, because he was dead in law, and if the lord might take him out of his cloister, then he could not live according to his religion. The like reason may now be given for baptism being incorporated into the laws of the land; if the duties which arise thereby cannot be performed in a state of servitude, the baptism must be a manumission. That such duties cannot be performed is plain, for the persons baptized are to be confirmed by the diocesan when they can give an account of their faith, and are enjoined by several Acts of Parliament to come to Church: and it cannot be an objection of any weight to say, that though he was baptized, yet it was not by the consent of the lord, because he is enjoined by the law. But if the lord have still an absolute property over him, then he might send him far enough from the performance of those duties, viz. into Turkey, or any other conntry of infidels, where they neither can or will be suffered to exercise the Christian religion. The law is so careful of the liberties of men under its protection, that the King himself, who has so great a right to the duty and service of his subjects, cannot send any one out of England against his will to serve in any other place, even in his own dominions, for this, my Lord Coke says, would be perdere patriam (b): ¹(b) 2 Inst. 46. 1 BI. Com. 137. 2 Hawk. P. C. c. 33.

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  (b) 2 Inst. 46. 1 BI. Com. 137. 2 Hawk. P. C. c. 33.

and therefore the lord could not send a villein [191] in gross out of the kingdom, because the King had a right in him. Thus it is also in the case of apprentices, who, though they voluntarily submit themselves to serve their masters for a certain number of years, yet they cannot be sent out of the kingdom, though it be to heir master’s house, and in his service, unless it be the agreement, or the nature of the apprenticeship is such (a). ¹(a) Coventry v. Woodall, Hob. 134. 1 Brownl. pl. 67.

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  (a) Coventry v. Woodall, Hob. 134. 1 Brownl. pl. 67.

Captives taken in war are under the most slavish degree of servitude, and those to whom they are subjected have thereby the highest right in them, because it is lawful not only to dispose of them at their pleasure, but even to destroy them. But it is observed amongst the Turks, that they do not make slaves of those of their own religion, though taken in war; and if a Christian be so taken, yet if he renounce Christianity, and turn Mohometan, he thereby obtains his freedom (b). ¹(b) Molloy de Jure Maritimo, 355.

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  (b) Molloy de Jure Maritimo, 355.

And if this be a custom allowed amongst infidels, then baptism in a Christian nation, as this is, should be an immediate enfranchisement to them, and they should thereby acquire the privileges and immunities enjoyed by those of the same religion, and be intitled to the laws of England.

Thirdly, this action will not lie for taking a man prehii centum librarum.-First, because it is not found that either the widow or the heir was in possession of this plantation and negro slaves at the time of the action brought; for if this negro be part of the real estate, then Sir John Witham was a disseisor by bringing him into England, and a disseisee cannot have an action of trespass before a re-entry, because the freehold is in the disseisor (c). ¹(c) 2 Roll. Abr. 553.

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  (c) 2 Roll. Abr. 553.

Secondly, the vagrancy of a villein, or a neife, is the

fault of the lord ; and therefore, in the seventh year of Richard the Second, it was held, that if a stranger marry such neife, not knowing to what lord she belonged, he is not a trespasser (d), ¹(d) Fitz. Abr. “Bar,” pl. 240.

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  (d) Fitz. Abr. “Bar,” pl. 240.

which is this very case in point.

Adjournatur.

Afterwards, in Hilary term, judgment was given for the defendant, that the bill shall abate; for the Court were of opinion, that no action of trespass would lie for the taking away a man generally, but that there might be a special action of trespass for taking his servant, per quod servitium amisit.

Chamberline v. Harvey, 92 Eng. Rep. 603, 605

3 LD. RAYM. 130.                  PLEADINGS TO THE CASES

PLEAS BEFORE THE LORD THE KING AT WESTMINSTER OF THE TERM OF SAINT

MICHAEL IN THE EIGHTH YEAR OF THE REIGN OF THE LORD WILLIAM, NOW

KING OF ENGLAND, &c. ROLL 123.

CHAMBERLINE against HARVEY. 1 Ld. Raym. 146.

Count in trespass for a negro slave.

London, (to wit).-Be it remembred, that on Wednesday next after three weeks of Saint Michael in this same term, before the lord the King at Westminster came Willoughby Chamberline, Esq; by Godfrey Woodward his attorney, and brought here into the Court of the said lord the King then there his certain bill against Robert Harvey, Esq; in custody of the marshal, &c. of a plea of trespass; and there are pledges of prosecuting, to wit, John Doe and Richard Roe; which said bill follows

in these words, to wit, London, to wit, Willoughby Chamberline, Esq; complains of Robert Harvey, Esq; in custody of the marshal of the Marshalsea of the lord the King, being before the King himself, for that the said Robert on the first day of September in the year of our Lord 1695, with force and arms, one [130] negro of him the said William, of the price of 1001. of lawful money of England, at London aforesaid, to wit, in the parish of the Blessed Mary of the Arches in the ward of Cheape, took and led away from him, and then and there detained and kept possession of the negro

aforesaid from the said first day of September until the exhibiting of this bill, so that he the said Willoughby totally was without, and lost the use and benefit of the said negro for the whole time aforesaid, and other wrongs to the said Willoughby then and there did, against the peace of the said lord the now King, to the damage of him the said Willoughby of 1501. and thereupon he brings suit, &c. And the said Robert by Robert Stone his attorney comes and defends the force and injury when, &c. and saith, that he is not thereof guilty in manner and form as the said Willoughby above complains against him; and of this he puts himself upon the country, and the said Willoughby thereupon likewise: therefore let a jury thereupon come before the lord the King at Westminster on Thursday next after the morrow of All Souls; and who neither, &c. to recognize, &c. because as well, &c. The same day is given to the parties aforesaid there, &c. Afterwards the process thereupon is continued between the parties aforesaid in the plea aforesaid, by the jury being respited thereupon between them, before the lord the King at Westminster until Thursday next after fifteen days of Saint Martin, unless the lord the King’s trusty and well-beloved John Holt, Knt. Chief Justice of the lord the King, assigned to hold pleas in the Court of the said lord the King himself, shall before come on Wednesday next after 15 days of Saint Martin at Guildhall, London, by form of the

statute, for want of jurors, &c. At which day before the lord the King at Westminster cometh the said Willoughby by his said attorney, and the said Chief Justice before whom, &c. hath sent here his record before him had in these words: afterward on the day and at the place within contained, before John Holt, Knt. Chief Justice of the lord the King, assigned to hold pleas in the Court of the said lord the King before the King himself, come as well the within named Willoughby Chamberline, Esq; as the within written Robert Harvey, Esq; by their attornies within contained; and the jurors of the jury, whereof mention is within made, being called, certain of them, to wit, Thomas Sericole, Richard Martin, Samuel Stone, Benjamin Hodgson, Jeremiah Barratt and Nathaniel Spinlow came, and are sworn upon that jury; and because the rest of the jurors of the same jury did not appear, therefore others of the by-standers, by the Sheriffs of (131] London aforesaid, being chosen to this, at the request of the said Willoughby Chamberline, and by the command of the Chief Justice aforesaid newly appointed, whose names are affiled in the panel within written, according to the form of the statute in such case made and provided ; and the jurors so newly appointed, to wit, Thomas Pool, Richard Martin, Thomas Ward, John Watson, Philip Brewster and Richard Chauncey being called likewise come, who being chosen, tried and sworn to speak the truth concerning the matter within contained, together with the other jurors aforesaid before impanelled and sworn, say upon their oath, that one Edward Chamberline long before the within written time when, &c. was seised of a certain plantation in the island of Barbadoes in the West-Indies in parts beyond the seas in his demesne as of fee, and of certain negro slaves, being slaves belonging and appertaining to the same plantation ; and the aforesaid negro slave long before the within written time when, &c. was born within the island aforesaid of negro parents, slaves belonging and appertaining to the same plantation; and that long before the within written time when, &c. to wit, on the 29th day of April in the year of our Lord 1668, by one William Willoughby, Deputy Governor, Council and Assembly, being the representatives of that island in that behalf lawfully authorized and commissioned at the island aforesaid, it was enacted in these English words following, Barbadoes, an Act declaring the negro slaves of this island to be real estates : whereas a very considerable part of the wealth of this island consists in our negro slaves, without whose labour and service we shall be utterly unable to manage our plantations here, thereby relieving our wants, and bringing that considerable increase of revenue which this place affords to His Majesty’s coffers, as well here as in England ; and whereas some law-suits have risen, and other great inconveniencies have followed, where divers persons dying intestate have left their right and interest of their negro slaves to be by law disputed between their heirs, executors and administrators, wherein the various judgments and affections of several Courts or jurors have sometimes found for one, and at other times for the other, for a full remedy of these inconveniencies, and to the intent that the heirs and widow who claim dower may not have bare lands without negroes to manure the same, and also that the condition, right and interest of negroes, to all other ends and purposes may be fully known and determined, the Deputy Governors, Council and Assembly, being willing that all ambiguities herein should be re-[132]-moved, and the law in this case be declared and put in a certainty, have ordained and enacted by the Deputy Governor, Council and Assembly, and by the authority of the same, that from and after publication hereof, all negro slaves in all Courts of Judicature, and other places within this island, shall be held, taken and adjudged to be estates real, and not chattels, and shall descend unto the heir or widow of any person dying, according to the manner and custom of lands of inheritance held in fee-simple; provided always, that no person selling or alienating any of his or her negroes, is hereby held or obliged to cause such sale or alienation to be inrolled, as is accustomed to be done and required by the laws of this island, as in all other real estates ; any usage, custom or law to the contrary  otwithstanding. Provided this Act, or any thing therein contained, shall not be taken and deemed to extend unto any merchant, factor or agent, bringing negro slaves to this island, and having the consignments of any slaves under them, but that in all respects they, their executors, administrators or assigns, may hold, possess and enjoy such slaves or negroes in such condition as they might have done before the making of this Act, until sale of such slave or slaves hath been made in the island, as by that Act more fully appears. And that the said Edward Chamberline long before the said time when, &c. at the island aforesaid died seised of his like estate of and in the plantation and negro slaves aforesaid thereunto belonging; by and after whose death, one third part of the plantation and negro slaves aforesaid, whereof, the negro in the declaration aforesaid mentioned was one, descended to Mary, the widow and relict of the said Edward Chamberline, in the name of her dower, by the laws of the island aforesaid; and the reversion of the said third part descended to the said William Chamberline, as the son and heir of the said Edward; and being so seised, the said Mary afterwards and long before the time when, &c. took for her husband one John Witham, Knt. By which, the said John Witham was seised in right of his said wife of one third part of the plantation and negro slaves for the term of the life of his said wife; and the said John Witham being so seised, the within named negro, a true native, long before the within written time when, &c. to wit, in the 36th year of the reign of Charles the Second, late King of England, brought within this kingdom of England, and afterwards, the said negro slave above-mentioned remained in the service of him the said John within this kingdom of England for the space of divers years, from that time and before the said time when, &c. according to the [133] rites of the Church of England, but without the knowledge or consent of the said Willoughby Chamberline, there was baptized ; and that the said John Witham afterwards, and after the death of his said wife, but long before the said time when, &c. within this kingdom of England absolutely put the said negro slave out of his service ; and also afterwards and before the said time when, &c. the said negro slave served other subjects of this kingdom of England, and at the within written time when, &c. within this kingdom of England

was retained in the actual service of the said Robert Harvey, to take of the said Robert Harvey according to the rate of six pounds by the year for his wages in that behalf: but whether upon the whole matter aforesaid, by the jury aforesaid in form aforesaid found, the said Robert Harvey be guilty of the trespass within specified or not, the jurors aforesaid are wholly ignorant, and pray the advice of the Court here concerning the premisses; and if upon the whole matter aforesaid, by the jury aforesaid in form aforesaid found, it shall seem to the justices and the Court here that the said Robert Harvey be guilty of that trespass, then the said jurors say upon their oath, that the said Robert Harvey is guilty of the trespass aforesaid, as the said Willoughby Chamberline within complains against him; and they assess the damages of him the said Willoughby, by occasion of the trespass aforesaid, besides his costs and charges, to fifty pounds; and for his costs and charges three shillings and four pence; and if upon the whole matter aforesaid, by the jury aforesaid in form aforesaid found, it shall seem to the same justices here that the said Robert Harvey be not guilty of the trespass aforesaid, theni they the said jurors say upon their oath, that the said Robert Harvey is not guilty of the trespass aforesaid, as he the said Robert hath within in pleading alledged: and because the justices here are not yet advised, &c.

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