tinues; and that the negro did remain till the time of his departure in the service of his master Mr. Steuart, and quitted it without his consent; and thereupon, before the return of the king's writ, the said Charles Steuart did commit the slave on board the Anne and Mary, to safe custody, to be kept till he should set sail, and then to be taken with him to Jamaica, and there sold as a slave. And this is the cause why he, captain Knowles, who was then and now is, commander of the above vessel, then and now lying in the river of Thames, did the said negro, committed to his custody, detain; and on which he now renders him to the orders of the court. We pay all attention to the opinion of Sir Philip Yorke, and lord Chancellor Talbot, whereby they pledged themselves to the British planters, for all the legal consequences of slaves coming over to this kingdom or being baptized, recognized by lord Hardwicke, sitting as Chancellor on the 19th of October, 1749, that trover would lie: that a notion prevailed, if a negro came over, or became a Christian, he was emancipated, but no ground in law; that he and lord Talbot, when attorney and solicitor general, were of opinion, that no such claim for freedom was valid;1 that though the statute of tenures had abolished villeins regardant to a manor, yet he did not conceive but that a man might still become a villein in gross, by confessing himself such in open court. We are so well agreed that we think there is no occasion of having it argued . . . before all the judges, as is usual, for obvious reasons, on a return to a Habeas Corpus. The only question before us is, whether the cause on the return is sufficient? If it is so, the negro must be remanded; if it is not so, he must be discharged. Accordingly the return states, that the slave departed and refused to serve; whereupon he was kept, to be sold abroad. So high an act of dominion must be recognized by the law of the country where it is used. The power of a master over his slave has been extremely different, in different countries. The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory. It is so odious that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from this decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.

(S.T. xx. 80-82.)

1 The opinion was "that a slave coming from the West Indies to Great

Britain doth not become free."

XX

REX v. TUBBS

17 Geo. III., 1776.

[John Tubbs was a certificated waterman of the city of London, who was impressed for the Royal Navy by Lieutenant Tait, acting under a warrant "to impress seamen, sea-faring men, and persons whose occupations and callings were to work in vessels and boats upon rivers." Tubbs claimed that by his certificate he was exempted from such impressment. In 1743 it had already been decided (see note below) in R. v. Broadfoot that the Crown had the right to impress seafaring persons (S.T. xviii. 1323-1362). Mansfield's judgment in this case completes that decision, and is an important one in its bearing on the liberty of the subject and the powers of the executive. The right to impress had been claimed as far back as the reign of Richard II. See Stubbs, C.H. ii. 311; 2 Rich. II. St. i. c. 4; 2 Phil. and Mary, c. 16; 5 Eliz. c. 25; Broom, C.L. 113; Prendergast, Navy, p. 78.]

The power of pressing is founded upon immemorial usage allowed for ages; if it be so founded and allowed for ages it can have no ground to stand upon, nor can it be vindicated or justified by any reason, but the safety of the state: and the practice is deduced from that trite maxim of the constitutional law of England "that private mischief had better be submitted to, than public detriment and inconvenience should ensue." . . . Being founded on immemorial usage, there can be no doubt but there may be an exception out of it, on the same foundation-upon immemorial usage. I therefore lay out of the case all that has been said about the necessity of an act of parliament to create an exemption; and likewise all that has been mentioned relative to the doubt stated of the power of the crown to exempt by charter. . . . The only question is, "Whether, in fact, there is evidence of such usage as a matter of right?" . . . In the first place, it does not appear from any law book, it does not appear from any history, it has not been suggested at the bar, that there is, throughout the whole kingdom, any other exemption by the common law. . . . Persons liable, must come purely within the description of seamen, sea-faring men &c. . . . The commission is not to press landsmen, or persons of any other description of life. ... It is a very strong circumstance, therefore, that there is in fact no other exemption stated or alluded to, which rests upon the common law. There are many exemptions by statute; but they are grounded upon considerations of public policy . . . but the exemption of those

called the watermen of the city of London, is to be found in no statute or common law book whatever. . . There is no instance of any officer upon the impress service ever having paid any regard to a water-bailiff's certificate, nor any case produced where the city has taken it up as a matter of right, or insisted upon it as such in a court of justice. Therefore to give my opinion upon the case as at present stated, and upon the mere fact whether this exemption as here claimed is, or is not, warranted by immemorial usage, I cannot say it is. (From Lord Mansfield's judgment. Cowp. Rep. ii. 517-520.)

[NOTE. "The only question at present is, whether mariners, persons who have freely chosen a sea-faring life, persons whose education and employment have fitted them for the service, and inured them to itwhether such persons may not be legally pressed into the service of the crown, whenever the public safety requireth, 'ne quid detrimenti republica capiat.' For my part, I think they may. I think the crown hath a right to command the service of these people, whenever the public safety calleth for it. The same right that it hath to require the personal service of every man able to bear arms, in case of a sudden invasion or formidable insurrection. The right in both cases is founded on one and the same principle, the necessity of the case in order to the preservation of the whole. . . . According to my present apprehension . . . the right of impressing mariners for the public service is a prerogative inherent in the crown, grounded upon common law, and recognized by many acts of parliament. . . . As to the point of usages in the matter of pressing, I have met with a multitude of commissions and mandatory writs to that purpose conceived in various forms. . . . When I consider these precedents . . . running uniformly through a course of many ages . . . with the practice down to the present time, I cannot conceive otherwise of the point in question, than that the crown hath been always in possession of the prerogative of pressing mariners for the public service. But when the prerogative hath not only this tacit approbation of all ages, the present as well as the former, on its side, but is recognized, or evidently presupposed, by many acts of Parliament, as in the present case I think it is, I see no legal objection that can be made to it."

From the charge to the jury of the Recorder, Sir M. Foster, in Rex v. Broadfoot, S.T. xviii. 1326-1358.]

XXI

THE CASE OF THE DEAN OF ST. ASAPH

23, 24, 25 Geo. III., 1783-1784.

[The Rev. William Davies Shipley, Dean of St. Asaph, was prosecuted for publishing a pamphlet called A Dialogue between a Gentleman and a Farmer, the real author of which was his brother-in-law, Sir William Jones. The subject of the pamphlet was the principles of government. The Dean's trial took place at Shrewsbury Assizes, August 6, 1784, before Mr. Justice Buller. The jury found the Dean guilty of publishing only. On November 8, motion was made before Lord Mansfield, L.C.J., for a new trial on the ground of misdirection by the Judge, but the motion was rejected by the court. Subsequently a motion was made in arrest of judgment, and "judgment was accordingly arrested, and no new proceedings were ever had upon the subject against the Dean or the printer." Throughout the Dean was defended by Erskine, whose speech, called by Fox "the finest argument in the English language," in moving for a new trial was one of his most famous forensic efforts; Mansfield's judgment is not less celebrated. Nine years later the law was altered by 32 Geo. III. c. 60 (Fox's Libel Act, see p. 156). See S.T. xxi. 847-1046; Stephen, H.C.L. ii. 316-345; Erskine's speeches (ed. Ridgeway), vol i. The excerpts give (1) the passage from Mr. Justice Buller's charge which was the ground of the motion for the new trial; (2) the salient passages from Mansfield's judgment.]

I

You have been addressed by the quotation of a great many cases upon libels. It seems to me that the question is so well settled, that gentlemen should not agitate it again . . . there could be but three questions;-first, whether the defendant is guilty of publishing the libel? the second whether the innuendoes or the averments made upon the record are true? the third, which is a question of law, Whether it is or is not a libel? Therefore the two first are the only question which you (the Jury), have to consider; and this, added he very rightly, is clear and undoubted law. It is adopted by me as clear and undoubted law, and it has been held so for considerably more than a century past. . . . With such a train of authorities it is really extraordinary to hear the matter now insisted on as a question which admits a doubt; and if we go further back, it will be found still clearer, for about the time of the Revolution authorities will be found which go directly to the point. . . If one looks a little farther into

...

the constitution, it seems to me, that without recourse to authorities, it cannot admit of a doubt.

...

The judges are sworn to administer the law faithfully and truly. The jury are not so sworn, but to give a true verdict according to the evidence. Did any man ever hear of it, or was it ever yet attempted, to give evidence of what the law was? If it were done in one instance it must hold in all. . . . It is, after the fact is found by the jury, for the Court to say whether it is an offence or not. It would undoubtedly hold in civil cases as well as criminal. . . . In a future stage of the business, if the defendant is found guilty, he will have a right to demand my opinion; and if ever that happens, it is my duty to give it, and then I will. . . . Therefore I can only say, that if you are satisfied that the defendant did publish this pamphlet, and are satisfied as to the truth of the innuendoes in point of law, you ought to find him guilty. If you are not satisfied of that, you will of course acquit him.

(From the charge of Buller, J., in the Dean of St. Asaph's case, S.T. xxi. pp. 945 and 946.)

II

The answer to these three objections is, that by the constitution the jury ought not to decide the question of law, whether such a writing, of such a meaning, published without a lawful excuse, be criminal; . . . therefore it is the duty of the judge to advise the jury to separate the question of fact from the question of law; and as they ought not to decide the law . . . the judge is not called upon necessarily to tell them his own opinion. It is almost peculiar to the form of prosecution for libel, that the question of law remains entirely for the Court upon record . . . so that a general verdict, "that the defendant is guilty," is equivalent to a special verdict in other cases. It finds all which belongs to the jury to find; it finds nothing as to the law. Therefore when a jury have been satisfied as to every fact within their province to find, they have been advised to find the defendant guilty, and in that shape they take the opinion of the Court upon the law. . . . The subject matter of these three objections has arisen upon every trial for a libel since the Revolution, which is now near one hundred years ago. . . During all this time, as far as it can be traced, one may venture to say, that the direction of every judge has been consonant to the doctrine of Mr. Justice Buller; and no counsel has complained of it by any application to the Court... the formal direction of every judge (under which every lawyer for near a hundred years, has so far acquiesced as not to complain of it to the Court) seems to me, ever since the Revolution, to have been