that the principles for which they so bravely contended should have embraced all conditions of their fellow men. Even Bacon seemed still to be labouring under the notion that villeinage was part of the law of nature.1 And Coke alludes to villeins as miserable creatures, and scarcely recognises them as men at all.2 Cook says in argument, that in the 11 Elizabeth, one Cartwright brought a slave from Russia and would scourge him cruelly, for which he was questioned, and it was resolved that " England was too pure an air for slaves to breathe in.” 3 The principle embodied in this noble figure of speech, the recorded result of a resolution of the judges, seemed, however, not to sink as it ought to have done into the general conscience of the nation, and to have been logically carried out. But Lord Mansfield said that in the reign of Charles II. there were only two slaves left in England at the abolition of tenures, and the last confession of villeinage extant was in 19 Henry VI.4

Modern view of indefensible nature of slavery.—Guizot says, that it is going too far to say, that the abolition of slavery in the modern world was entirely the work of Christianity. A great development of new ideas was required to abolish this iniquity of iniquities.5 The genius of Christianity, however, could not fail to sap and mine this pagan institution, and so it was noticed in the time of the Commonwealth. The rising of Wat Tyler in 1381 struck a blow at villeinage, and the landlords gave up the

6

1 Bac. Max. 11. 2 2 Inst. 28. 3 3 St. Tr. 1351; 2 Rushw. Coll. 468.

4 20 St. Tr. 78. DE TOCQUEVILLE says that in no part of Germany, at the close of the eighteenth century, was serfdom as yet completely abolished, and in the greater part of Germany the people were still literally adscripti gleboe as in the Middle Ages. Almost all the soldiers who fought in the armies of Frederick II. and of Maria Theresa were in reality serfs. As late as 1788 in most of the German states a peasant could not quit his domain, and if he quitted it he might be pursued in all places wherever he could be found, and brought back by force. He could neither improve his condition, nor change his calling, nor marry without the will of his master.-De Tocqueville, Soc. in Fr. b. ii. c. 1. Up to the time of Somersett's Case before Lord Mansfield (20 St. Tr. 79), there had been a tolerance in England of the practice of foreign masters controlling their slaves; and it is said they were sold openly on the Exchange and other places of public resort.-Per L. Stowell, 2 Hagg. Adm. 105.

5 Guizot, Civ. Eur. Lect. 6. 6 T. Smith, Com. 250.

demand for base services, and ceased to reclaim truant villeins.1 Wycliff had also inculcated, that slavery was contrary to the Christian religion.2 Before slavery was finally abolished, there were timid reformers, who urged that it would be going quite far enough, if they were to regulate without absolutely abolishing it. Political freedom, however, when examined, was found to sink into nothing when compared with personal freedom. Burke said that he himself had papers prepared in order to advocate the regulation of slavery, but when Wilberforce's motion came on, he instinctively burnt them, as he read that the sorcerer's books were offered up and burnt at the approach of the gospel. When an association was formed to abolish the slave trade, and the public mind was besieged with arguments, illustrations, and discussions, all pointing to one result, the essential iniquity of that trade was made self-evident. The resolute action of a few men of high character and humanity carried all before them by the aid of free discussion. In twenty years from first prohibiting the importation of slaves by subjects of the crown into foreign countries, parliament passed an act rendering all dealings in slaves felony.*

3

As the air of England is too pure for slaves to breathe in, it is a maxim or elementary principle discovered and created by statute, that no human being can have any kind of property in another human being, whether he is a native or a foreigner, and that all contracts, deeds, powers, and acts, which are founded on such a notion, are altogether void, to be disregarded and treated as if they never existed. No quarter can be given, no parley can be held with the doctrine, that slavery, or anything approaching it, was part of the law of nature, though it may have been part of the common law. The common law, indeed, had long strayed from the right path, and was lifted out of the mire by the legislature, which brought to bear higher views of morality and religion than the common law had ever before dreamt of. The rule, like a new informing soul, now pervades the law that all men are free, and that it is an abuse of language to liken any relation that can exist between two 1 2 Stubbs, Const. H. 462. 2 Barringt. Stat. 311. 3 29 Parl. Hist. 358; Acts xix. 19. 4 46 Geo. III. c. 52; 5 Geo. IV. c. 113; 1 Clarkson's Hist. Slavery, 288; 1 Wilberf. Life, 139.

The

human beings to the relation of proprietorship. analogy is and always was a false analogy. Property has no meaning when used between man and man as subject and object. There may be contracts and rights and wrongs arising out of mutual duties; but these are all made and rest on the footing of entire equality—each treating all others at arm's length-each exercising a discretion and choice, and at the worst submitting to the consequences of such choice. Slavery with all its distinctions and qualifications, its essential vices, its cruelties and oppressions, has been blotted out for ever from the book of civilisation. With it has fallen into oblivion a brood of monstrous and perverted fictions, the refuse of pagan practices adopted and imitated by courts that knew no better, and which no longer deserve to be named or remembered among men. It is true, that some niceties of conduct require still to be borne in mind where subjects of this country come in collision with the laws of other countries, and seem driven to choose between acting on one principle or its opposite. But these difficulties wholly belong to that division of the law, entitled " the security of foreigners," and require no further notice in this place. It is enough to say, that our law, within the limits of this country, knows no distinction between foreigner or native, and treats all human beings, whencesoever coming or going, as entitled to the same liberty. If any one is seized or imprisoned or kept in subjection within English territory, he can vindicate his freedom by the same well known remedies. The whole posse comitatus, all the civil and military resources of the country are at the command of any one human being, however insignificant, of any colour or race or origin, who chooses to invoke them, so that he may be at once restored to the position of a freeman, and so that he may treat all the rest of mankind at arm's length, and subject to no other qualifications than his own free contract, or what duties the law imposes on all alike, for their common good and equal protection.

Whether a contract to serve for life is valid.-The only remnant of what was once known as slavery may be said to be its modern shadow, a contract to serve another for life. A court of law in 1837, was persuaded to hold, that such a contract was valid, and that there seemed to be no

objection to it. But the unanswerable objection to it is this, that now since all courts are in possession of the elementary axiom that slavery cannot exist, this involves the further proposition that no man can sell himself to slavery or renounce or abdicate the inherent rights of manhood, part of which is to keep his own freedom well in hand. He may contract in any way and every way he finds expedient for his own interest, subject only to a reasonable term of service. But a life contract is an absurdity. The utmost a court can consistently hold is, that the servant can if he pleases, and when he pleases, avoid a contract for life service; and unless a short term of a few years is specified, it will be treated as only a contract from year to year.2

Kidnapping and stealing human beings.-The stealing or kidnapping of an adult person is an offence seldom known in civilised countries, as it presupposes a degree of combination and defiance of law, which the vigilance of each individual, and the ready means of identification and protection supplied by settled communities usually baffle. As regards women and female children, indeed, the circumstances of civilised communities too readily give rise to offences now known under the name of abduction and childstealing, and these are more fitly treated of under that chapter of variations in personal security caused by sex and infancy. As regards adult men, the attempts to kidnap or secrete these are usually punishable under the head of assault or false imprisonment, for which actions, indictments, or habeas corpus supply the remedies. In a less advanced stage of society, the crime of kidnapping grown persons was treated as a felony. But such a crime is now simply impossible, according to the fundamental maxim, that no human being can become the property of another; and hence the offence resolves usually into one of false imprisonment.3

1 Wallis v Day, 2 M. & W. 273.

2 The only authority relied on for the doctrine was a note of a case in Brooke's Abridgment, being a decision temp. Henry IV. (1400), a time when villeins were the order of the day, and when the courts had no more idea of the fundamental invalidity of slavery than Plato and Aristotle had.

3 It has been said that it was no uncommon occurrence, so late as the commencement of the present century, for a man to sell his wife.-4 Bl. Com. (Christian's) 64 n. Such an offence is now simply an impossibility, whatever may be the ignorance or credulity

Penal servitude.-The case of penal servitude may in one sense be likened to slavery, but it is essentially different. It is only a form of punishment which is inflicted because it is deemed necessary for the preservation of society, that those who show a flagrant violation of the most vital of its laws, should be prevented by force from repeating such conduct, and be deprived of that power of doing mischief, which is necessarily incident to a state of freedom.1

of the persons, who suppose they go through the form of such a sale or purchase.

1 4 Bl. Com. 11; 2 Inst. 315; Beccaria on Cr. c. 29; Co. Litt. 116 b.; Bracton, 1, 6, 2. As to punishment and its varieties, see post, Chap. viii.

END OF FIRST VOLUME.