Newport vs. Billing.
Trespass and false Imprisonment. Plea that Plaintiff is Defendants Property—his Negro Slave.
no slave but a freeman.
Bill [of] Sale 1728. 15th March from David Ingersole.
Coll. Partridge. Ingersoles Hand. Lowghtons Hand. Knew Newport to live with Billing and reputed his servant.
Mr. Dickerson. Knew him 30 Years to be the servant of Billing.
Acts of Parliament that take Notice of slaves in Plantations.4
Every Man a Right to freedom that no Law or Usage can take away.
Forfeiture of Liberty. Wars, among them. Captives.
A Right to destroy them, if necessary to secure themselves.
Right to enslave them to repay the Expences of defending ones self.
Sense of the Nation to be relyed on.
Presumption here is that an African black is a Slave.
Point in issue, Slave or not?
Defendant must now prove that Plaintiff is a slave. A Negro, black &c., the only Proof. Montesquieu, flat Nose, &c.8
History, Greece and Rome. Slavery. Power of Life and death.
Not proved that he has forfeited his Liberty, by the Laws of his Country.11
Common Report, that they are stolen in Affrica. The Same Right for them to enslave us.
Common Law directly vs. this Principle. Villenage.12
3 Raymond 1274. Salk. Mod. Levitic Law Exod. The master might kill his slave.13
May have a Right to service, during Life. But not to Life.
Province Laws might mean slaves of West indians.14
Painfull. Humanity, common Justice, and eternal Morality.
Conquest and Rights of War.
Plea says D. Ingersole had a Right to sell him. Rec[eip]
t. Similitude of Hands.16
Protection. Break his Head. Indictment will lye.
Moral. Necessity to set it aside, it may be dem[onstrated?] that it is a Disadvantage to us.
Vid. Arguments at large in 1st. Mod.18
2. Simeon Strong, counsel for defendant.
3. “Replication”—the plaintiff's response to the plea.
4. For example, 23 Geo. 2, c. 31 (1750): “An Act for extending and improving the trade to Africa.—Whereas the trade to and from Africa is very advantageous to Great Britain, and necessary for the supplying the plantations and colonies thereunto belonging with a sufficient number of negroes, at reasonable rates.”
5. For example, “An Act Relating to Mulato and Negro Slaves,” 28 July 1703, c. 1, 1 A&R
519 (no manumission without security); “An Act to Prevent Disorders in the Night,” 1 Dec. 1703, c. 11, 1 A&R
535–536 (9 p.m.
curfew for Indian, Negro, and mulatto servants or slaves); “An Act for the Better Preventing of a Spurious and Mixt Issue,” 5 Dec. 1706, c. 10, 1 A&R
578–579 (outlaws miscegenation and imposes a £4 per head duty on all imported Negroes).
6. For example, “An Act for Apportioning and Assessing a Tax of £40,000. . . . [§3] . . . to estimate Negro, Indian, and molatto servants proportionably as other personal estate.” 23 June 1767, 4 A&R
7. James Putnam, counsel for plaintiff.
8. Montesquieu, De l'Esprit des Loix, Liv. XV, c. V: “Ceux dont il s'agit sont noirs depuis les pieds jusqu'à la tête; et ils ont le nez si écrasé qu'il est presque impossible de les plaindre.”
9. Genesis 9:18–26:
“And the sons of Noah, that went forth of the ark, were Shem, and Ham, and Japheth: and Ham is the father of Canaan. These are the three sons of Noah: and of them was the whole earth overspread. And Noah began to be an husbandman, and he planted a vineyard: And he drank of the wine, and was drunken; and he was uncovered within his tent. And Ham, the father of Canaan, saw the nakedness of his father, and told his two brethren without. And Shem and Japheth took a garment, and laid it upon both their shoulders, and went backward, and covered the nakedness of their father; and their faces were backward, and they saw not their father's nakedness. And Noah awoke from his wine, and knew what his younger son had done unto him. And he said, Cursed be Canaan; a servant of servants shall he be unto his brethren. And he said, Blessed be the Lord God of Shem; and Canaan shall be his servant. God shall enlarge Japheth, and he shall dwell in the tents of Shem; and Canaan shall be his servant.”
10. John Newton (1725–1807), English clergyman who had served when young in the ship of his father (governor of York Fort, Hudson Bay), the Royal Navy, and the slave trade. He later studied Greek and Hebrew and was ordained an Anglican priest in 1764. His Authentic Narrative
(1764) described his early life.
11. A possible reference to Smith v. Browne & Cooper, 2 Salk.
666, 91 Eng. Rep.
566, Holt K.B.
495, 90 Eng. Rep.
1172 (ca. 1707) note 13
below, in which Lord Holt held that
“as soon as a Negro comes into England, he becomes free; One may be a Villein in England, but not a Slave. . . . You should have averred in the Declaration that the Sale was in Virginia and by the laws of that Country Negroes are saleable; for the Laws of England do not extend to Virginia, being a conquered Country, their Law is what the King pleases; and we cannot take notice of it but as set forth.”
12. “A base tenure, where a man holds [land] upon terms of doing whatsoever is commanded of him, nor knows in the evening what is to be done in the morning, and is always bound to an uncertain service. 1 Steph. Comm. (7th ed.) 188.” Black, Law Dictionary
13. The cases cited by Putnam are probably Smith v. Gould, 2 [not 3]Ld. Raym.
1274, 92 Eng. Rep.
338, 2 Salk.
666, 91 Eng. Rep.
1705); Smith v. Browne & Cooper, note 11
above; and Chamberline v. Harvey, 5 Mod.
182, 87 Eng. Rep.
1696). In the Gould
case it was held that trover for a Negro will not lie, “no more than for any other man; for the common law takes no notice of Negroes being different from other men.” Putnam's reference to Scripture is probably a quotation from Salkeld's argument for the plaintiff in Gould
“that a negro
was a chattel by the law of the plantations, and therefore trover would lie for him; that by the Levitical
law the master had power to kill his slave, and in Exodus
xx, ver. 21 it is said, he is but the master's money.” Chamberline v. Harvey was cited in the margin of both reports of Smith v. Gould. In a long opinion the court held “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.”
at 191. See Pleadings Book, Form XI
14. The argument seems to be that the word “slaves” in the various Province laws (notes 5
, above) ought to be taken to mean slaves on the Caribbean Islands only.
15. Jonathan Sewall, of counsel for Newport.
16. That is, the handwriting on the bill of sale was similar to that on another (unspecified) document.
17. For Voltaire on slavery see “L'A, B, C, ou Dialogues entre A, B, C,” 8ème Entretien, “Des Serfs de Corps”:
“C. . . . Montesquieu m'a fort réjoui dans son chapitre des nègres. Il est bien comique; il triomphe en s'égayant sur notre injustice. A. Nous n'avons pas, à le vérité, le droit naturel d'aller garrotter un citoyen d'Angola pour le mener travailler à coups de nerf de boeuf à nos sucreries de la Barbade, comme nous avons le droit naturel de mener à la chasse le chien que nous avons nourri: mais nous avons le droit de convention.”
Voltaire, Oeuvres, 45:67–68 (Paris, Beuchot ed., 1831).
The reference to sugar may be an echo of Montesquieu. “Le sucre seroit trop cher, si l'on ne faisoit travailler la plante qui le produit par des esclaves.” Montesquieu, De l'Esprit des Loix,
Liv. XV, c. 5.
18. This may be an inadvertence for “5th Mod.” (note 13
above), where arguments are fully set forth; nothing appears on the subject in 1 Mod.