Williams v. Johnson

RobiNSON, J., delivered the opinion of the Court; This was an action of trover, to recover the value of a negro slave. At the time of the institution of the suit, negro slavery ⁵⁰⁵ existed in this State, and the sole question raised by the demurrer is, whether its abolition by the Constitution of 1864, operates as a bar to the plaintiff’s recovery. The radical error, which underlies the argument of the appellee’s counsel, is the assumption, that negro slavery, as it existed in this State, was the creature of statutory law. Various acts, it is true, may be found from the earliest period of colonial legislation in which it was recognized and protected, but the statute book will be searched in vain for a law by which it was established or ordained.

The act of 1663, ch. 30, so confidently relied upon in support of this position, so far from establishing slavery in the colony, recognizes, in express terms, its existence at that time, and it is a well known historical fact, that negro slaves were held here many years prior to that date. We must, therefore, trace its origin, introduction and the peculiar circumstances under which it became identified with the institutions of the colonies, to other sources than statutory law. Strange as it may seem to some persons of the present day, it is a fact fully established by public history, that at the time when these colonies were planted, negro slavery and the slave trade were not only recognized as lawful, but sanctioned and protected by all of the enlightened commercial nations of Europe. England, France, Spain, and Portugal were the rivals in every market, in which a profit was to be realized from the trade, and the right to buy and sell negro slaves was everywhere admitted.

This opinion, say the Supreme Court, in 19 Howard, 407 , “ was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as in politics, which no one thought of disputing or supposed open to dispute, and men in every grade and position of society, daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.” ⁵⁰⁶ Especially was it the policy of Great Britain to introduce and encourage it in the colonies, and so late as 1749, 23 Geo. II, eh. 30, we find an act for extending and improving the ■ trade to Africa, in which Parliament declares it to “ be very advantageous to Great Britain, and necessary for supplying the plantations and colonies with a sufficient number of ne-groes at reasonable rates.” Negro slavery was thus introduced into the colonies through the policy of the mother country, and with the consent of the colonists. “ It became established,” says Hxjbd, on the Law of Freedom and Bondage, page 212, “ under the common law of the several colonies, which, however, being a local law only, was entirely distinct in its origin and authority, and in its territorial and personal extent from the common law, which was national in those attributes, and which was, In each part of the empire, the common measure of the personal rights of the English-born subject.” The cases, therefore, in which it has been held that actions based upon statute law, fall with the repeal of the law, and the principles upon which they were decided do not apply. Slavery being established by the municipal law of .the State, the question here is, whether its abolition defeats a, pending action of trover brought by the appellant to recover the value of his slave.

Now, we take the general principle to be well settled, that rights vested under the municipal law of a country are' not affected by a change or abrogation of the law. The law says Puffendorf may be disannulled, but the rights acquired by virtue of it, while in