
    Allison vers. Cockran.
    1764.
    Administrators are incompetent Witnesses in Matters affecting the Estate of their Intestate, except where such Estate is insolvent.
    The Report of the Commissioners is the only legal Evidence of such Insolvency which can establish the Competency of the Administrator.
    
      TROVER for a Negro. () The Administratrix of one Cockran, (Father-in-Law to the Defendant,) deceased, was offered as an Evidence to prove the Sale from Allison to the Father.
    Whether Trover lies for a Negro—quœre.
    
      
      Ruled by the Court, (after hearing the Arguments of Messrs. Gridley, Otis Auchmuty, pro con,) that Administrators could not be Witnesses, except when the Estate is insolvent.
    
      
      Mejfrs. Otis ⅜* Gridley, Council for Defendant,
    faid it was univerially known that the Eilate of Cock-ran, the Father, was infolvent, and appealed to the Chief Juftice (who was likewife Judge of Probate) () for the Truth of their Suggeftion.
    
      
      
        Lu. if this Action is well brought, for Trover lies not for a Negro. 2 Salk. 666. Ld. Raym. 1274, 146. Cases in the Time of Holt, 495.
    
    
      
      (1) In 1677, the Court of King’s Bench, considing of Rainsford, C. J., Twisden, Wild & Jones, JJ., expressed an opinion that trover would lie for negroes, who had been found, by special verdict, to be “ infidels,” and “ usually bought and sold in America,” [or, as other reporters have it, “ in India,”] “ as merchandise, by the custom of merchants.” Butts v. Penny, 2 Lev. 201; 3 Keb. 785; Freem. 452. But the record shows that the negroes in that case were “ in India; ” 20 Howell’s State Trials, 52; and the decision, as reported by Freeman, was put upon that ground only — “ Held per Curiam, that although by the law with us a man cannot have an absolute property in the body of another, yet the custom of India concerning buying and felling of slaves being found, a trover and conversion would lie well enough.” Freem. 452. This does not appear to have been known to the successors of those judges, (Freeman’s Reports not being yet published,) when they “ denied the opinion in the case of Butts & Penny.” 2 Ld. Raym. 1275.
      In the same court in 1680, Dolben, J., said that trover, brought by one tenant in common “ for half a negro,” “ has been allowed.” 2 Show. 177. But it does not appear where that negro was. The decision referred to may have been in Butts v. Penny, ub. sup., which is reported by Reble as “ trover of 10 negroes and a half; ” 3 Keb. 785; (although the record of that case only mentions ten; 20 Howell’s State Trials, 51, note;) or, more probably, the case thus quoted in the Court of Chancery in 1687: “ Mr. Sergeant Maynard's case was cited, who recovered a debt contracted here against the executor of an owner of a plantation in Barbadoes, and by his advice an action of trover was brought, and judgment obtained for the fourth part of a negro.” 1 Vern. 453.
      In 1689, Lord Holt, & Rokeby & Turton, JJ., (three of the four judges who afterwards decided Chamberlain v. Harvey, infra,) joined in an opinion, given to the King and Council, that negroes were merchandise in the colonies. 1 Burge Col. & For. Laws, 736, note.
      It is said to have been afterwards adjudged in the Common Bench that trover will lie for negroes. Gelly v. Cleve, (1693,) 1 Ld. Raym. 147, ex rel. Place. 3 Lev. 337. But it must be presumed that those negroes too were in the colonies; for if they were in England, the de-cition is inconsistent with a series of cases in the King’s Bench, (cited in Quincy’s note, Supra, 94,) by which it was very soon afterwards established as the law of England, that “ as soon as a negro comes into England, he becomes free; one may be a villein in England, but not a Have.” 2 Salk. 666; Cas. temp. Holt, 495.
      In those cases, it was held, that trespass would not lie for taking a negro in England, without declaring (as in the case of the taking away of any other servant) per quod servitium amisit; Chamberlain v. Harvey, (1696,) 1 Ld. Raym. 146; 3 Ib. 129; 5 Mod. 182, 186; Carth. 397: Nor indebitatus assumpsit for the price of a negro, without averring that at the time of the sale he was in a country by the laws of which he might be sold as a chattel; Smith v. Brown, 2 Salk. 666; Cas. temp. Holt, 495: Nor trover. Smith v. Gould, (1706,) 2 Ld. Raym. 1274; 2 Salk. 666. That the converfion alleged in the laft cafe was in England is manifeft from the grounds given for the decif-ion by Lord Holt — “ The common law takes no notice of negroes being different from other men. By the common law no man can have a property in another, but in fpecial cafes, as in a villein,” &c. “ There is no fuch thing as a flave by the law of England.” 2 Ld. Raym. 1274, 1275. The ftatement at the end of Salkeld’s report of this Cafe—“the Court feemed to think that in trefpafs quare captivum fuum cepit the plaintiff might give evidence that the party was bis negro and he bought him ” — appears to be an unwarranted inference of the reporter, inconflftent with Lord Raymond’s report, and with the cafe of Chamberlain v. Harvey, ub. fup.
      
      There is no English adjudication since, which conflicts with these decisions of Lord Holt. In Pearne v. Lisle, (1749,) Ambl. 75, Lord Hardwicke resused a writ of ne exeat against one who owed the plaintiff for the hire of certain negroes, upon the ground that it was a legal demand on which the defendant might be arrested at law, saying: “ As to the nature of the demand, it is for the use of negroes; a man may hire the servant of another, whether he be a slave or not, and will be bound to satisfy the mailer for the use of him.” This passage accords with the suggestion in Chamberlain Harvey, ub.sup., that trespass per quod servitium amist might be maintained in England for enticing away a slave; and conclusively shows that, even if the writ of ne exeat had been granted, the case would have involved no decision of the question of what property one might have in a negro. The additional remark of the Lord Chancellor — “ I have no doubt that trover will lie for a negro slave; it is as much property as any other thing” — is therefore wholly extrajudicial; and is moreover accompanied by a misrepresentation of the grounds of Lord Holt's decision, and by a manifest desire to confirm the opinion given by Lord Talbot and himself in 1729 as attorney and solicitor general, in favor of holding slaves in England, of which Lord Mansfield said that it “was upon a petition in Lincoln’s Inn Hall, after dinner; probably, therefore, might not be taken with much accuracy.” Lofft, 8; 20 Howell’s State Trials, 70.
      Lord Hardwicke’s opinion on this subject has never been recognized as law by any court in England. In 1762, a bill in equity, filed by an administrator to recover back money given by his intestate to a negro who had been brought to England as a slave, (which was apparently founded on the supposition that the negro was Hill a slave, and therefore incapable of receiving a gift,) was dismissed by Lord Northington, who said: “ As soon as a man sets foot on English ground, he is free; a negro may maintain an action against his master for ill usage, and may have a habeas corpus if restrained of his liberty.” Shanley v. Harvey, 2 Eden, 127.
      It appears by Granville Sharp's MS. that Lord C. J. Wilmot, in 1768, held, that a female negro slave, married in England to a negro man who had also been brought from the West Indies as a Have, could not be carried back without the content of the husband; and that Lord C. J. He Grey, about the same time, more than once expressed the opinion, that there could be no property in the person of a Have by the law of England. Sharp’s Memoirs, (2d ed.) 72, no. The same book contains a full account of Lord Mansfield's evasions of a decision of the general question in the case of Rex v. Stapylton, in 1771. Ib. 82, 89-92.
      It is clear from these authorities, (without relying on the case of the Russian Slave in 1569, mentioned in 2 Rushw. Hist. Coll. 468,) that Lord Mansfield's reluctant discharge of the Negro Sommersett in 1772, (Lofft, 17-19; 20 Howell’s State Trials, 79-82,) was but a re-affirmance of the law of England, as previously determined by Lord Holt and other eminent judges — notwithstanding the subsequent statement of Lord Mansfield, in The King v. Thames Ditton, (1785,) 4 Doug. 301, that “ the case of Sommersett is the only one on this subject; ” and the assertion of Lord Stovoell, in the case of the Slave Grace, (1827,) 2 Hagg. Adm. R. 106, 114, that Lord Mansfield, in Sommersett's case, “ made a change in the law.” For an examination of some of the obiter dicta of Lord Stowell, see 20 Law Rep. 99, 105-107. That learned civilian does not manifest any knowledge that one of his predecessors, Sir George Hay, almost: as soon as Sommersett's case was decided, twice held, upon full argument, that, before as well as since that decision, negroes could not lawfully be held or fold as Haves in England. Cay v. Crichton, (1773,) in the Prerogative Court; Rogers v. Fones, (1776,) in the High Court of Admiralty; both reported in Granville Sharp’s “Just Limitation of Slavery,” (London, 1776,) App. 10 & 11, pp. 77-86.
      Sir William Blackstone's oscillations in this matter are too characteristic to be passed by, notwithstanding the length to which this note has already extended. In the first edition of his Commentaries, published in 1765, founding himself upon Lord Holt, (“Salk. 666,”) he wrote: “ This spirit of liberty is so deeply implanted in our Constitution and rooted in our very soil, that a slave or a negro, the moment he lands in England, falls under the protection of the laws, and, with regard to all natural rights, becomes eo instanti a freeman.” In his third edition, published in 1768, after the question had begun to be re-agitated in England, he altered the last clause of his statement to this : “ and so far becomes a free man; though the master’s right to his service may probably Hill continue.” Against which Quincy has written, in the margin of his copy, “ Curious ! ” In the fourth edition, published two years later, “possibly” was subslituted for “probably.” 1 Bl. Com. 127. After the passage had affirmed this shape, Hargrave truly said of it, “ There appears to be somewhat of very subtle distinction, if not rather of contradiction.” 20 Howell’s State Trials, 30, note.
      Trespass will lie in England for taking slaves on the high seas, or in a country where slavery is not prohibited by law, from one who is not prohibited by the laws of his own country from trading in slaves. Madrazo v. Willes, (1820,) 3 B. & Ald. 353. Buron v. Denman, (1848,) 2 Exch. 167. But the commander of a British vessel is not liable to an action for refusing to deliver up to their master slaves who have escaped from a foreign country where slavery is recognized by law, and got on board his vessel, and are unwilling to return. Forbes v. Cochrane, (1824,) 2 B.& C. 448; 3 D. & R. 679.
      By the English authorities, therefore, the right to maintain trover for a negro would seem to depend upon the question whether he may be held and fold as a chattel by the law of the country where his master’s possession of him is interfered with. The fact suggested by Hargrave, arguendo, in 20 Howell’s State Trials, 53, that “ the master’s power over the Have doth not extend to his life, and consequently the master’s property in the slave is in some degree qualified and limited,” would seem to be no valid objection to the maintenance of the action; for trover lies by one who has any special property in a chattel, with the right to immediate possession. 2 Saund. 47, & note.
      At the time of the trial of the case here reported by Quincy, negro slaves were held and sold as property in Massachusetts. Ante, 29, note (2) to Oliver v. Sale, and authorities there cited. And in 1763 trover had been maintained in this court for a negro. Goodspeed v. Gay, in Barnstable, Rec. 1763, sol. 47. But it has been said, that in Connecticut, while slavery existed there, trover would not lie for a slave. Reeve Dom. Rel. 340.
    
    
      
      (2) By the Province Charter the jurisdiction in matters of probate was vested in the Governor and Council as a civil law court, who appointed judges of probate in each county as their delegates or substitutes. Anc. Chart. 32. Governor Pownall’s Message to the Council in February, 1760, App. III. 3 Hutchinson’s Hill. Mass. 451, note, a Mass. 154. 8 Cush. 541. 21 Law Rep. 78, 79.
    
   The

Ch. Just.

said that from the Accounts given him of the Estate, and from his own Knowledge, he had no Manner of Doubt but that the Estate was insolvent; yet as the Commissioners had not made Report, there was no legal Evidence of the Insolvency. And the Court ruled, that the Administratrix of Cockran the Defendant’s Father should not be sworn. () 
      
      (3) It is not easy to see why an administrator, not a party to the suit, and without any beneficial interest in the trust fund, should not be a competent witness for the estate, without regard to its solvency or insolvency. 2 Stark. Evid. (2d Amer. ed.) 775. 3 Danc Ab. 420. 12 Mass. 358. But it is probable that, in practice, adminillrators were paid by a commission on the amount collected, as was afterwards expressly provided by the Rev. Sts. c. 67, § 8 — which might require a release to make them competent witnesses. 11 S. & R. 208. 15 lb. 235. 7 lb. 116. See also 16 Mass. 118.
     