[397]

Upon Not guilty pleaded, the Jury gave a special Ver-
dict, the Substance whereof was as followeth:

ss. 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 the Court gave no Opinion.

Sed per Curiam, An Action of of Trespass will not lie,
because a Negro cannot be demanded as a ^{*2 Lev. 201. Adjudged on a special Verdict, that Trover did not lie for a Negro.} 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 ser-
vitium amisit, in which the Master shall recover for the
Loss of his Service, and not for the Value, or for any Da-
mages done to the Servant.

Judgment quod querens nil capiat per Billam.

REPORTS
OF
CASES
ARGUED AND ADJUDGED in the COURTS of
KING’S BENCH
AND
COMMON PLEAS,
In the REIGNS of
The late King William, Queen Anne, King
George the First, and His present Majesty.

Taken and Collected

By the Right Honourable ROBERT Lord RAYMOND,
late Lord Chief Justice of the court of King’s Bench.

In Two Volumes.

VOL. I.

In the SAVOY:

Printed by HENRY LINTOT, (Assignee of Edward Sayer, Esq;) for the
Executor of Fletcher Gyles, and for T. Woodward and C. Davis
against Gray`s Inn Gate in Holbourn. MDCCXLIII.

[146] Hil. Term 8 & 9 Will. 3.

Chamberlain vers. Harvey.

{S. C. Carth. 396. 5 Mod. 186. Trespass for a Negro does not lie.}
TRespass for taking of a Negro pretii 100 l. The jury find a
special verdict; that the father of the plaintiff was possessed
of this Negro, and of such a manor in Barbados, 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 seised him, &c. And after argu-
ment at the bar several times by Sir Bartholomew Shower of the one
side, and Mr. Dee of the other, this term it was adjudged, that

[147]

{Trespass, where it lies?}
this action will not lie. Trespass will lie for taking of an appren-
tice, 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. 685. 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, adjudged that it lies not.
See 2 Salk. 666.

The Fifth and Last PART
OF
Modern Reports:
BEING A
CONTINUATION
Of Several
SPECIAL CASES
ARGUED and ADJUDGED
IN THE
COURT
OF
King`s Bench,
At WESTMINSTER,
In the 6th, 7th, 8th, 9th, 10th, and 11th
Years of the Reign of the late King William;
and Judgments thereupon.
TOGETHER WITH
Special Pleadings to most of the said CASES.

None of them ever Printed before.

Collected by the same Hand as the former PARTS.

—– Durum ex me disce laborem,
Fortunam ex aliis.

The Second Edition carefully revised, with the Addition of some
Thousands of Notes.

In the SAVOY:
Printed by Eliz. Nutt and R. Gosling, (Assigns of Edward Sayer Esq; )
for Tho. Bever, at the Hand and Star within Temple-Bar; and
Tho. Osborn, in Grey`s-Inn, near the Walks. M DCC XX.

[182]

DE
Termino Paschæ

Anno 8 W. III. in B. R. 1696.

Chamberline versus Harvey, Mich. 7. W. 3. Rot. 123.

[left column]
{Lond. SS. } MEmorand. quod
Die Mercurii
prox. post tres
septiman. San-
cti Michaelis isto eodem Termino
coram Domino Rege apud West-
monast. ven. Willoughby Cham-
berline per Godfridum Wood-
ward Attorn. suum & protulit hic
in Cur. dicti Domini Regis tunc
ibidem quandam billam suam
versus Robertum Harvey Ar. in
Custod. Mareschal’ , &c. de pla-
cito transgress. Et sunt pleg.
de prosequend. ss. Johannes Doe
& Richardus Roe quæ quidem
billa sequitur in hæc Verba ss.
London ss. Willoughby Cham-
berline Ar. queritur de Roberto
Harvey Ar. in Custod. Mar. Ma-
reschal. Dom. Regis coram ipso
rege existen. de eo quod idem
Robertus primo Die Septembris
Anno. Dom. Millesimo sexcente-
simo nonagesimo quinto Vi & Ar-
mis, &c. un Æthiopem [An-
glice vocat. a Negro] ipsius Wil-

[right column]
loughby pretii centum Librarum
legalis monetæ Angliæ apud
London præd. (viz.) in Parochia
Beatæ Mariæ de Arcubus in
Ward. de Cheape, cepti & ab-
duxit & possess Æthiopis præd.
a præd. primo Die Septembris
usque exhibition. hujus billæ ad-
tunc & ibidem detinuit & custo-
divit. Ita quod ipse idem Wil-
loughby usum & beneficium Æ-
thiopis prædict. per totum tem-
pus prædict. totalit. perdidit &
amisit & al. enor. eidem Wil-
loughby adtunc & ibid. intulit
contra pacem dicti Domini Regis
nunc ad dampnum ipsius Wil-
loughby centum & quinquagint
Librarum & inde producit Se-
ctam, &c.

Et præd. Robertus per Ro-
bertum Stone Attorn. suum
ven. & defend. vim & injuriam
quando, &c. & dicit quod ipse
non est inde culpabilis modo &
forma prout præd. Willoughby
versus eum superius querirur &

[183]

[left column]
de hoc ponit se super patriam &
præd. Willoughby inde similiter
ideo ven. inde jurat. coram Do-
mino Rege apud Westm. Die Jo-
vis prox. post Cras. Animar. &
qui nec, &c. ad recogn’ , &c.
quia tam, &c. idem Dies datus
est partibus præd. ibidem, &c.
postea continuat. inde processus
inter partes prædict. in placito
præd. per jur. posit. inde inter
eos in respect. coram Domino
Rege apud Westm. usque Diem
Jovis prox. post quinden. Sancti
Martini nisi dilect. & fidelis Do-
mini Regis Johannes Holt Mil.
Capital. Justiciar. Domini Regis
ad placita in Cur. ipsius Domini
Regis coram ipso Rege tenend.
assign. prius Die Mercur. prox.
post Quinden. Sancti Martini a-
pud Guildhall, London, per for-
mam Statuti ven. pro defen. jur.
&c. ad quem Diem coram Do-
mino Rege apud Westm. venit
prædict. Willoughby per Attorn.
suum præd. & præfat. Capital.
Justic. coram quo, &c. misit hic
Record. suum coram eo habit. in
hæc Verba Postea Die & Loco
infra content. coram Johanne
Holt Mil. Capital. Justic. Domi-
ni Regis ad placita in Cur. ip-
sius Domini Regis coram ipso
Rege tenend. Assign. Associat. si-
bi Johanni Ince Gen. per formam
Statuti, &c. ven. tam infrano-
minat. Willoughby Chamberline
Ar. quam infrascript. Robertus
Harvey Ar. per Attorn. suos in-
fracontent. & jur. jurat. unde in-
fra fit mentio exact. quidam eo-
rum (viz.) Thomas Sericole,
Ric’us Martin, Sam. Stone, Benj.

[right column]
Hodgson, Jeremias Barrat, &
Nathaniel Spinlow, ven. & in
jur. ill. jurat. exist. & quia resid.
jur. ejusdem jure non comperuer.
ideo al. de circumstantibus per
Vic. Civitat. præd. ad hoc
elect. ad requisition. præd. Wil-
loughby Chamberline ac per
mandat. Capital Justic. præd. de
novo apponuntur quorum nomi-
na panell. infrascript. affilan-
tur secundum formam Statut. in
hujusmodi casu edit. & provis.
ac. jur. sic de novo apposit. (viz.)
Thomas Pool, Ric’us Martin,
Thomas Ward, Johannes Wat-
son, Ph’us Brewster, & Ric’us
Chauncey exact. similit. ven. qui
ad veritat. de infra content. simul
cum al. jur. præd. prius impanel-
lat. & jurat. dicend. elect. triat.
& jurat. dicunt super sacr’um
suum quod quidam Ed’us Cham-
berline diu ante infrascript.
tempus quo, &c. sesit. fuit de
quadam Plantation. in Insula de
Barbadoes in le West-Indies in
partibus transmarinis in Dominico
suo ut de feodo & quibusdam
Servis Æthiopicis [Anglice Ne-
groe-Slaves] Servis eidem
Plantation. spectan. & pertinen.
& præd. infrascript. Servus Ethi-
opus diu ante infrascript. tempus
quo, &c. infra Insulam præd.
nat. fuit de Parentibus Æthiop.
[Anglice Negroe-Slaves] Ser-
vis eidem Plantation. spectan. &
pertinen. & quod diu ante infra-
script. tempus quo, &c. scilicet
Vicesimo nono die Aprilis Anno
Domini Millesimo Sexcentesimo
sexagesimo octavo per quendam
Willielmum Willoughby deputat.

[184]

Gubernator. concilium & assem-
blation. repræsentat. Insulæ illius
existen. in ea parte legitime Au-
thorizat. commissionat. apud In-
sulam illam inactitat. fuit in his
Anglican. verbis sequen. Barba-
does. An Act declaring the Ne-
gro Slaves of this Island to
be real Estates. Whereas a
very considerable Part of the
Wealth of this Island consists
in our Negro Slaves, with-
out whose Labour and Service
we should 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 Ma-
jesty’s Coffers, as well here
as in England; And whereas
some Law-Suits have risen, and
other great Inconveniencies
have followed, where divers Per-
sons dying Intestate have left
the Right and Interest of their
Negro Slaves to be by Law dis-
puted between their Heirs, Exe-
cutors, and Administrators,
wherein the various Judg-
ments and Affections of seve-
ral 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 claims Dower,
may not have bare Lands with-
out Negroes to manure the
same; and also, that the
Condition, Right, and Inte-
rest of Negroes to all other
Ends and Purposes may be

[right column]
fully known and determined;
the Deputy-Governor, Coun-
cil 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, and it is
hereby ordained and enacted by
the Deputy-Governor, Council
and Assembly, and by the Au-
thority of the same, That
from and after Publication
hereof, all Negroe Slaves in
all Courts of Judicature, and
other Places within this Island,
shall be held, taken, and ad-
judged to be Estates Real, and
not Chattels, and shall de-
scend unto the Heir or Widow
of any Person dying, acording
to the Manner and Custom
of Lands of Inheritance held
in Fee-simple, provided always,
that no Person selling or a-
lienating any of his or her
Negroes, is hereby held or obli-
ged to cause such Sale or A-
lienation to be enrolled, as is
accustomed to be done, and re-
quired by the Laws of this
Island, as in all other Real
Estates, any Usage, Custom
or Law to the contrary not-
withstanding: Provided this
Act, or any Thing therein con-
tained, shall not be taken and
deemed to extend unto any
Merchant, Factor, or Agent,
bringing Negroe Slaves to this
Island, and having the Con-
signments of any Slaves un-
der them; but that in all Re-
spects, they, their Executors,

[185]

[left column]
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. ] Prout per Actu.
ill. plenius apparet quodque
præd. Edwardus Chamberline diu
ante præd. tempus quo, &c. a-
pud Insulam præd. de simili Statu
suo de & in Plantation. & Sevis
Æthiop. præd. ad inde pertinen.
obiit se’it. per & post cujus mor-
tem una tertia pars Plantation. &
Æthiop. servorum præd. unde Æ-
thiop. Servus in narr. præd. men-
tionat. fuit un. descendebat Ma-
riæ Vid. & Relict. præd. Edwardi
Chamberline nomine dotis suæ
per leges Insulæ præd. & reversio
præd. tertiæ Partis & præd. al.
duæ tertiæ Partes descendebant
præfat. Willo. Chamberline ut Fil.
& Hæred. prædict. Edwardi &
sic se’it. existen. præd. Maria po-
stea & diu ante tempus quo, &c.
cepit in virum suum quendam
Johan. Witham Mil. per quod
præd. Johannes Witham se’it. fuit
in jure Uxor. suæ. præd. de una
tertia Parte Plantation. & Æthi-
op. Servor. pro termino vitæ Ux-
oris suæ præd. ac præd. Johannes
Witham fic se’it. existen infrano-
minat. Æthiop. verum Nativum
diu ante infrascript. tempus quo,
&c. scil’t in Anno Regni Caroli
Secundi nuper Regis Angliæ, &c.
Tricesimo Sexto infra hoc Reg-
num Angliæ duxit & postea
præd. Æthiop. Servus superius
mentionat. remansit in Servito

[right column]
ipsius Johannis infra hoc Reg-
num Angliæ per spacium diver-
sor. Annor. extunc & ante præd.
tempus quo, &c. juxta ritus
Ecclesiæ Anglicanæ sed absque
notitia sive consensu præd. Wil-
loughby Chamberline ibidem
baptizat. fuit quodque præd.
Johannes Witham postea & post
mortem præfat. Uxo. ejus sed
diu ante præd. tempus quo, &c.
infra hoc Regnum Angliæ Æ-
thiop. Servum præd. a Servitio suo
pentius detrusit necnon postea &
ante præd. tempus quo &c. idem
Æthiop. Servus alios hujus Reg-
ni Angliæ subdit. infra hoc Reg-
num Angliæ deservisset ac in-
frascript. tempore quo, &c. infra
hoc Regnum Angliæ retent. fuit
in actual. Servito præd. Roberti
Harvey capiend. de præfat. Ro-
berto secundam ratam sex Libra-
rum per Ann. pro salario suo in ea
Parte sed utrum sup. tot. materiam
præd. per Jur. præd. in forma
præd. compert. præd. Robertus
Harvey sit culpabil. de transgres.
infra specificat. necne Jurator.
præd. penitus ignorant & pet. ad-
visament. Cur. hic de præmissis.
Et si super totam Materiam præd.
per Jur. præd. in forma præd.
compert. videbitur Justic. & cur.
hic quod præd. Robertus Harvey
fit culpabil. de transgress. ill.
tunc iidem Jurator. dicunt super
sacr’um suum præd. quod præd.
Robertus Harvey est culpabil.
de transgress. præd. prout præd.
Willoughby Chamberline inte-
rius versus eum queritur. Et as-
sidunt dampna ipsius Willough-
by occasione transgress. præd.

[186]

[left column]
ultra mis. & Custag. ill. ad
quinquagint. & tres Solid. &
quatuor Denar’. Et si super to-
tam materiam præd. per Jur. præd.
in forma præd. compert. videbi-
tur eisdem Justic. hic quod præd.
Robertus Harvey non sit culpa-
bil. de transgress. præd. tunc

[right column]
iidem Jurator. dicunt super sa-
cr’um suum præd. quod præd.
Robertus Harvey, non est cul-
pabil. de transgress. præd. prout
ipse idem Robertus Harvey in-
terius placitando allegavit &
quia, &c.

{2 Lev. 201. Vide 3 Lev. 336, 337. 3 Keb. 785. Ray. 16. 2 Salk. 666, 667. Cro. Car. 19, 391, 545. Cro. Eliz. 126, 545. Cro. Jac. 262, 463. }
TRespass for taking a Negroe Slave of the Value of One
hundred Pounds: Upon Not guilty pleaded, the Jury
found a Special Verdict at the Guildhall, London: ss. That be-
fore the Trespass committed, one Edward Chamberline was
seized in Fee of a Plantation in Barbadoes, and of certain Ne-
groe Slaves thereunto belonging; that the Negroe now taken
was born within the said Island of Negroe Parents, being
Slaves belonging to the said Plantation. They find an Ordi-
nance made by the Deputy Governor, Council, and Assembly
of the Representatives in the said Island, That the Negroe
Slaves there shall be real Estates, and shall descend to the Heir
or Widow as Lands of Inheritance, &c.

That Edward Chamberline died seized, &c. after whose Death
one third Part of the Plantation and Negroe Slaves (whereof
this Negroe was one) came to Mary his Widow and Relict, as
her Dowry, and the Reversion of the said Thirds, and the two
other Thirds did descend to the Plaintiff, as Son and heir of
Edward Chamberline. That the said Mary did afterwards marry
Sir John Witham, who thereupon was seized in her Right for
her Life of one third Part of the Plantation and Slaves; and
being so seized, he did, in the 36th Year of King Charles II.
bring this very Negroe 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 Wi-
tham turned this Negroe 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 is guilty
of the Trespass, they refer to the Court.

A Case like this never happened before.

[187]

There were three Questions made upon this Verdict:

1. Whether upon this finding there was any legal Property
vested in the Plaintiff?

2. If any such Property be vested in him, then whether the
bringing this Negroe into England be not a Manumission, and
the Property thereby divested?

3. Whether an Action of Trespass will lie for taking a Man
Pretti centum Librarum.

{Vide March 12. Hob. 283. Ray. 16. 2 Lev. 201. 3 Lev. 336. 2 Salk. 667. &c. ante.} As to the First, Tho` the Word Slave hath but a very harsh
Sound in a free and Christian Country, yet perfect Bondage hath
been allowed in such Places; and the Power which doth natu-
rally arise 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. And the Jury have found a
Law there, which makes these Slaves Part of the real Estate,
and this Negroe was born of Negroe 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.

{Vide 2 Salk. 411, 412.} This Ordinance made in Barbadoes being subject to the Crown
of England, hath the same Force there as an Act of Parliament
hath here. Now if this had been the Case of a Villain here,
the Jury have found enough to make him Regardant to a Ma-
nor; in which, by the Law of this Land, the Lord had so abso-
lute a Property, that if he be 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 where-ever he may be found, &c.

An Action of Trover will not lie, but where the Plaintiff hath
a Property in the Thing demanded. Now it cannot be denied,
but that Trover will lie for a Negroe; for so was the Case of,
&c. Butts & Penny. 3 Keb: 785: 2 Lev: 201.

It is true, there is no Judgment entred in that Case, but
that may be the Fault of the Attorney in not bringing in the
Postea.

2. Nothing here found doth amount to a Manumission or En-
franchisement.

[188]

{Sect. 204.} Manumission is defined by Littleton to be, when the Lord
makes a Deed to his Villain to enfranchise him, this is one
kind of Manumission; the other is, when the Lord doth some
Act, which in Judgment of Law, amounts to make his Villain
free, as by making a Feoffment in Fee to him, and delivering
Seisin accordingly, &c. It is true, he may have several tempo-
rary Privileges whereby he may be exempted from the Seisin of
the Lord, as entring into Religion, &c. but can in no Case be
infranchised but where the Lord is an Actor; and even in such
Case, if the Lord himself had enfranchised him by Deed, cum
totâ sequelâ suâ procreatâ & procreandâ, this was not a sufficient
Manumission of such Children which he had before the Execution
of the Deed without special Words, because they were Villains
in Possession at that Time.
{Co. Lit. 137. b. 5 H. 7. 14. a. Br. Tit. Villenage, placito, 26. }

But here is nothing of the Lord`s Consent found in this
Verdict, but the Contrary.

Then bringing 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 Planta-
tion was Tortious, then the finding that he continued in his Ser-
vice, 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 Villain free, so as to devest
himself of that Property which he had in him; then a Fortiori,
what the Villain doth without the Consent of the Lord, cannot
acquire a Manumission.

{Co. Lit. 136. b.} That a bare Consent alone is not sufficient, appears by my
Lord Coke`s Comment on Littleton, and the Authorities there ci-
ted in the Margent; That if a Nief regardant to a Manor
marries a Freeman without the Licence of the Lord, who after-
wards makes a Feoffment of the Manor, and then her Husband
dies, the Lord shall still have the Nief, and not the Feoffee.

If Baptism should be accounted a Manumission, it would ve-
ry 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]

Econtra.

It was argued on the other Side, That it was against the Law
of Nature for one Man to be a Slave to another. ‘Tis true, 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
that 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.

`Tis by the Constitution of Nations, and not by the Law of
Nature, That the Freedom of Mankind hath been turned into
Slavery: Thus saith Bracton, Fiunt etiam servi liberi homines capti- {Lib. 1. Cap. 6.}
vitate de jure gentium. But our Laws are called Libertates Angliæ,
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 is indebted to the Testator of his
Villain, he may bring an Action against him as Executor; so
may the Neife have an Appeal of Rape, being ravished by her
Lord. {Litt. Sect. 189, 190.}

If Slavery in Barbadoes, and Villenage here, were the same
sort of Servitude, the Plaintiff may be seized of this Negro
as a a Villain in Gross, or as Regardant to the Plantation; for
there were but two sorts of Villains here, either in Gross, or
Regardant to particular Manors.

Now this cannot be a Villain Regardant to the Plantation,
for then the Plaintiff and his Ancestors must be seized of this
Negro, and his Ancestors Time out of Memory of Man, which
could not be, because Barbadoes was acquired to the English
within Time of Memory; and he cannot be a Villain in Gross,
because ’tis found he was born of Parents belonging to the
Plantation. {Litt. Sect. 181, 182.}

But if the Plaintiff hath any Property in this Negro, he must
either have an absolute or 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 Tres-
pass will not lay, but an Action per quod servitium amisit.

[190]

Salk 666 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 Coun-
try) so long as he is occupied in Service on that Plantation;
and if he be brought into another Country where that Law hath
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 Cloathing are the
only Recompence for Servitude.

Aut. 188. But being baptized according to the Right 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
{Sect. 202.} Religion was established, as appears by Littleton, for in those
Days, if a Villain had entered into Religion, and was professed
as they called it, the Lord could not seize him; and the Rea-
son 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 accord-
ing to his Religion.

The like Reason may now be given for Baptism, being incor-
porated 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 Per-
sons 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 hath 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 Country 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 hath 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,
{ 2. Inst. 46.} even in his own Dominions, for this my Lord Coke saith would
be perdere Patriam; and therefore the Lord could not send a Vil-

[191]

lain in Gross out of the Kingdom, because the King had a Right
in him.

{Brownl. 1. Ps. 67. Hob. 134. idem Coventry Woodall.}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,
tho’ it be to their Master’s House, and in his Service, unless
it be the Agreement, or the Nature of the Apprenticeship is such.

Captives taken in War are under the most Slavish Degree
of Servitude, and those to whom they are subjected have there-
by the highest Right in them, because ’tis lawful not only to
dispose of them at their Pleasure, but even to destroy them.
But ’tis 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 Mahometan, he doth thereby obtain his freedom. { Molloy de jure Maritimo, 355.}

And if this be a Custom allowed amongst Infidels, then Bap-
tism in a Christian Nation, as this is, should be an immediate
Infranchisement to them, and they should thereby acquire the
Privileges and Immunities enjoyed by those of the same Reli-
gion, and be intitled to the Laws of England.

3. This Action will not lie for taking a Man, pretti centum libra-
rum. First, because `tis 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 Wytham was a Disseisor by bringing
him into England, and a Disseisee cannot have an Action of Tres-
pass before a Re-entry, because the Freehold is in the Disseisor. {Roll. Abr. 2 Ps. 553.}

{Fitz. Abr. Tit. Bar. Placito 240.} The Vagrancy of a Villain, or a Neife is the Fault of the
Lord; and therefore Anno. 7. R. 2. it was held, If a Stranger
marry such Neife, not knowing to what Lord she belonged, he
is not a Trespasser, which is this very Case in Point Adjourna-
tur. Afterwards, in Hillary Term, Judgment was given for the
Defendant, that the Bill shall abate; for the Court were of Opi-
nion, That no Action of Trespass would lie for the taking away a
Man generally, but there might be a special Action of Trespass
for taking his Servant, per quod Servitium amisit. Vide Reg: 108:

ENTRIES
OR
PLEADINGS
IN MANY OF THE
CASES
REPORTED BY THE
RIGHT HON. ROBERT LORD RAYMOND,
LATE LORD CHIEF JUSTICE OF THE COURT OF KING’S-BENCH
REFERRING TO THOSE CASES
FOR THE
ILLUSTRATION AND BETTER UNDERSTANDING THE SAME.

COLLECTED AND TRANSLATED INTO ENGLISH BY
GEORGE WILSON, ESQ.
SERJEANT AT LAW.

THIRD EDITION CORRECTED.

DUBLIN:
Printed by ELIZABETH LYNCH, No. 6, Skinner-Row,
and in the Four Courts.

M, DCC, LXXXV.
1785

[134]

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 remembered, that on Wednesday
next after three Weeks of Saint Mi-
chael in this same Term, before the Lord the King at West-
minster 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 Chamber-
line, Esq; complains of Robert Harvey, Esq; in Custody
of the Marshal of the Marshalsea of the Lord the King, be-
ing 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 100 l. 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 150 l. and thereupon he
brings Suit, &c.

{Not Guilty.} 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 be-

[135]

tween them, before the Lord the King at Westminster un- {Nisi prius}
til 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 Mar-
tin at Guild-hall, 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 At-
torney, and the said Chief Justice before whom, &c. hath {Postea}
sent here his Record before him had in these Words: Af-
terward on the Day and at the Place within contained, be-
fore 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, Rich-
ard 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, {Tales de Circumstantibus.}
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 within contained, toge-
ther with other Jurors aforesaid before impanelled and
sworn, say upon their Oath, That one Edward Chamber-
line long before the within written Time when, &c. was {Special Verdict.}
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 belong-
ing and appertaining to the same Plantation; and the afore-
said 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

[136]

and Assembly, being the Representatives of that Island in
that Behalf lawfully authorized and commissioned at the Is-
land aforesaid, it was enacted in these English Words follow-
ing, 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 un-
able 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 ri-
sen, and other great Inconveniencies have followed, where
divers Persons dying Intestate have left their Right and In-
terest 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 Ju-
rors have sometimes found for one, and at other Times for
the other, for a fully 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 As-
sembly, 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 De-
puty Governor, Council and Assembly, and by the Au-
thority 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 adjudg-
ed 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 A-
gent, 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

[137]

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 Es-
tate 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 Ed-
ward 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 King-
dom of England, and afterwards, the said Negro Slave a-
bove-mentioned remained in the Service of him the said
John within this Kingdom of England for the Space of di-
vers Years, from that Time and before the said Time
when, &c. according to the Rites of the Church of Eng-
land, 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. with-
in 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 afore-
said 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 a-

[138]

foresaid 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 Ro-
bert 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 Ro-
bert Harvey is not guilty of the Trespass aforesaid, as he
the said Robert hath within in pleading alledged: And be-
cause the Justices here are not yet advised, &c.