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Show 194 DESl'OTISJ\! Chamber, ordered by t he J,ong Parliament in 1640, and reported in Rusltworth's Collections, a case was cited said to have occorred in the elcv~ nth year of Eliz~bcth, (1569,) in which "one Cartwn g ht ?ro~lght a slave from Russ ia, and wou~d scourge lum , for which he was questioned, and tt was resolved that England was too pure an a ir for_ a slave t<;> brca~hc in." But the first recorded English case, 1~ whtch the legality of holding men in slaver~ carr~c 111 que.stion, was that of Butts v. Penny, d_ectdc~ m 16~7, 111 the Court of King's Bench. (2 Levmtz, 2o1; 3 k eble, 785.) Thou gh in form an action of trove~, brought · London to recover damages for t he takmg away ~ ten n~groes, this case .in _fact ~elated t~ a transaction between the parties 111 .Ind,_a, (see _Hargrave's statement on the subject, Ill h1s p~bhsl!cd argument in t he case of Somerset;) and It bc~ng found by a special verdict ".that th~ .negroes were infidels and subjects of an mfidel pnnce, and. ar~ usually bought and sold in India as mercha~ldJsc, and that the pla int iff bought t hese, and was 111 possession of them till the defendant took them, the court held "that bein(J' usually boug ht and sold atnong merchants as mercha0ndise, there mig ht be a property in them sufficient to maintain trover." And t he same doctrine appears also to have been .held in tl~e Common Pleas in 169-l, in the case of Gtlly v. Cbve, (1 Lord Raymond, 147.) But in 1705, in the case of Smllh v. Gould, (Salkeld, 666; 2 Lord Raymond, 1774,) which was also an action of trover for a negr~,r ~h: case of Butts v. Penny was expres•ly overruled .. 1\ common law" said Lord Holt," takes no notJCC 0 110aroes bcin~ dift'ercnt from other men. By tl~ cobm~ mgn Jaw no man can have a property i~ an?t cr t~ in special cases, as in a villein, but even 111 htm no k 0 kill him; so in captivcR _taken in war, but t he ia ~r cannot kill1hcm, but may sell them to ra nsom t~ ,.: 'J'here is no such thing as a slave by tlte law of zg land" d N~r was this the only occasion upon which Lor IN Ai\TF.Rl CA. 195 Holt, one of the most illustrious names in Enalish jurhsprudcncc, vindicate-d this principle of the ~ammon law. ln the casP of Smitlt v. Brown o/ Cooper, (!Iolt, 495; Salkeld, 666,) the court over which he prcs.idcd refu~ed to sustain an action of as~mmpsi t to recover the price of a slave, "bccausP," said Lord Holt, "as soon as a n cgi'O comes into E ngland he is free. One may be a villein in England, but uot a slave." It was indeed suggc~ted that the tlecision might have been dinCrcnt, had the sale been stated in the declaration to have been made in Virginia, with an averment t hat, by the laws of that country, nrgrocs were saleable,- " for the laws of England," said Lord Holt, " do not extend to Virginia: being (£ conquered counl'ry, their law is what the king plcases, and we can not take notice of it but as set forth." This, however, was a view of the rela tion of t he mother countqr to the colonies, and of the rights of the inhabitants, the correctness of which {though it was held clown to Lord I-IolL's time by the English lawyers generally) was never admitted by t he colonists themsclve~, and which, in t he course of the next half century, as to all the colonies origina lly planted by English emigra nts, was, by the general consent of the English b('nch and bar, given up as untenable. Nor \Vould even the existence in the crown of such an arbitrary power of colonial legislation have afiOrdcd any legislative basis for ::;lavery to stand upon; for, so far from any authority having been given by the crown to the colonial legislatures to legalize slavery, it had been expressly provided in all the American· charters, and in all the instructions to the royal governors, that no local laws were to be enact~d repugnant to those of England; so that the questwn of the legality of slavery in the colonies would still come back to t he que~tion of its repugnancy to English jurisprudence. . Yet notwithstanUing the two express decisions above Cited of the Court of King's Be nch, that negro slavery was a thing unknown to the English law, which |