WILLIAM GREENWOOD vs. BENJAMIN CURTIS.

FOOTNOTES

[Note 1] [These counts seem to have been bad for want of an allegation of a consideration. -- Ed.]

[Note p362-1] Smith vs. Brown & Al., Salk. 666. -- Holt's Rep. 495, S. C.

[Note p362-Plus] Judge Sedgwick, having left the bench, to hold the western circuit, before the opinion in this cause was pronounced, has requested the reporter to insert the following note of an argument which he had intended to deliver, and which in part differs in its result from the opinion of his brethren: --

"I perfectly concur with the rest of the Court, that the evidence objected to at the trial was properly admitted; but here my concurrence is at an end; for after my utmost endeavors, by repeated and serious consideration, I have found it utterly impossible to bring my mind to believe that the plaintiff is entitled to recover on principles of law.

"Two questions are presented on this state of facts.

"1. Whether an action can be supported on the insimul computassent, or whether the several parts of this transaction can be so separated, that the promises of the defendant can be considered as made, in consideration of the sale of the cargo, for money; or whether we are bound to consider all the facts as parts of the same transaction -- inseparably connected at all times, as a contract for the delivery of slaves, or as a promise in consideration of such a contract. This question, from the nature of the subject, it is proper to consider first, although last presented, according to the arrangement of the counts in the declaration.

"2. Whether a promise made at Rio Pongos, in Africa, whatever the consideration might be, for the delivery of slaves there, will support an action in this commonwealth.

"1. Can an action be supported on the insimul computassent? The voyage was undoubtedly undertaken for the purpose of procuring a cargo of slaves, in a country with which this had no contention; to seize human beings, and tear them from their native land, and all those endearing connections which alleviate the evils inseparable from our present state of existence; and to subject the miserable, unoffending sufferers to all the horrors of perpetual slavery. Such purposes do not claim a very favorable consideration.

"On the arrival of the brigantine at her place of destination, the whole cargo was sold on credit for 115 slaves, which the defendant promised to deliver. This is the commencement of the relation between these parties -- the foundation on which all the future transactions rest. Had an action been brought on the failure of the defendant to deliver these slaves, there could, in my opinion, be no more pretence for supporting it, than there would have been, if the defendant, for the same consideration -- of the delivery of the same cargo -- had promised to commit murder, or to commit any other unlawful or immoral act. If the consideration of a promise be immoral, or the promise be to do an immoral act, in neither case can an action be supported on it. And it would be certainly a new doctrine, that, a promise to do a wicked action being void, the law will imply a promise for the consideration, if a valuable one, for which it was made; and if it be well founded, I see not why the man, who for money had hired an assassin to murder his father, might not, on his failure to perform his promise, support an action of indebitatus assumpsit, and recover it back. This, however, comes properly under the consideration of the second point in the case.

"But it seems to be supposed, in this case, that there has been a kind of analytical process, by which the different parts of the transaction have been separated, and so appropriated to the actors, as to constitute a different relation between them. This I cannot perceive. Part of the 115 slaves being delivered, an account was stated in the currency of the country, in which the defendant, on the one hand, charged himself with the cargo, and on the other discharged himself, in part, by certain advances he had made, and by 59 slaves which he had delivered upon the contract. The result was, upon that computation, that 6056 bars were due from the defendant. This account was signed by the defendant, and at the same time a promissory writing delivered, to pay the balance in slaves, as nearly as a numerical apportionment of slaves to the balance due would discharge it; but that leaving a residuum, it was to be paid in money. By this simple statement, to my mind, it is evident that the several items ought to be considered as parts of the same transaction, and the whole involved in one contract, in itself void as the ground of an action. The original promise was solely for the delivery of slaves; and this was the only basis of the subsequent computation, and inseparably connected with it. The original promise I now take for granted, and shall hereafter endeavor to prove it a promise on which no action could be supported. Was that deleterious nature of the original contract purged by any subsequent transaction? -- I think not.

"If the plaintiff is entitled to recover at all, it must be either on the first contract, which was merely a promise to deliver slaves, or from something that took place between the parties afterwards, and before the time of the account stated, and promise signed by the defendant. At present, I take for granted, as I have already said, that the plaintiff cannot recover on the original promise. There was nothing, as I think, done afterwards to exhibit the plaintiff's claim to recover in a more favorable light. All that took place between the parties was, that certain slaves were delivered upon the contract, and that the defendant made certain advances to the plaintiff, which he received towards it. Now, it is certain that a delivery of part of the slaves would have no tendency to validate the contract as to the residue. Nor can I conceive how the other advances can have that effect. I am ignorant of the nature of those, nor is it to my mind material. Admit that they were of the most innocent and even meritorious nature. Be they of whatever kind, their only effect in this respect is to lessen the amount of the original contract, which, if unavailable as a valid contract for the whole, before any advances were made, it would seem to me most clearly, would be equally unavailable for what it might purport to be due afterwards. If one pays part of a promissory note given upon a gambling or usurious contract, may he not afterwards say that the whole note is void? -- And if it may be said in those cases after part payment, is there any rational distinction by which the defendant shall be prevented from saying the same in this case?

"But the difficulty of separating this united transaction into distinct causes of action is increased, and indeed, to my mind, rendered insuperable, by the agreement of the parties, 'that the account and the note are parts of the same transaction.' If the transaction is one of which the account and note are parts, it is beyond my capacity to conceive how, upon principles of law and common sense, the note can be void, because the undertaking which it expresses is immoral; yet that the other part of this transaction, the account, is untainted with immorality; and yet both are founded on precisely the same consideration, and both are intended, in substance, to effect the same purpose.

"And, besides, if I understood or remember what took place in this Court, when this cause was sent back to a new trial, a principal object was to see whether the jury, in point of fact, could separate the account from the note; and we have been informed by the judge who tried it the last time, that it was put to the jury to determine that question, and that they found that the note and accounts were parts of the same transaction. And the parties have expressly agreed that so is the fact. If this be so, then the account alone displays the consideration, or, in other words, the relation of the parties, as the ground of the promise.

"There is no difficulty, to my mind, in understanding why the note and account were both signed by the defendant. It was not to divide this transaction into two. The supposition of one consideration supporting two promises, one for slaves, and the other for money, is, to my mind, incredible. But the note was to secure the delivery of the slaves, and the account for the satisfaction of the owner (who was not present) as to the manner of transacting his business. It certainly did not become two contracts, one for money and the other for slaves. Can any one imagine that it was the meaning of the parties, (which we are bound to be guided by, if we can discover it,) that the slave contract was to be converted into a contract for money? If it was, it is impossible to conceive why the note for slaves was given at all. And if it be admitted that it was the understanding of the parties, that the balance due should be paid in slaves, then the evidence does not support the count upon the insimul computassent. In that case, there is not evidence of a promise to pay money, but, on the contrary, to deliver slaves.

"But if I shall succeed in proving, as I shall now proceed to attempt to do, that the original promise to deliver slaves was utterly void, it follows, of course, that it could be no good consideration for any future promise, whether for slaves or money. And that what remained behind of the first, was the consideration for the subsequent promise, is too manifest to require either proof or illustration.

"2. I now proceed to consider the other question -- whether a promise made in Rio Pongos, in Africa, whatever the consideration might be, for the delivery of slaves, will support an action in this commonwealth.

"If the contract on which a remedy is sought in this action, be unrighteous or immoral, either in its consideration, or in its stipulations, judgment must be rendered for the defendant, unless the Court be concluded by positive authority, operating in favor of the plaintiff.

"Such an authority can only be found in the received maxims of the law of nations; the English common law, incorporated with the jurisprudence of this commonwealth by our constitution; the constitution and laws of the United States; or those of Massachusetts.

"The previous question -- whether such a contract as this under consideration be immoral, unrighteous, irreligious -- whether the execution of such a contract be consistent with the rights of our fellow-men, or with the duty we owe to our God -- will not be made the subject of an argument. So strong and so natural is the abhorrence of slavery in the heart of man unpolluted by its practice, so opposed to the just principles on which our revolution was founded, and so contrary to the mild, merciful, and benignant dictates of the holy religion we profess, that a labored discussion of the question is deemed to be superfluous.

"Can we seriously ask whether, for the gratification of our unlicensed avarice, we may rightfully reduce to bondage beings who, in their material form and essential character, (whatever our supercilious arrogance may suggest to the contrary,) bear equally with ourselves the impress of Divinity, and are equally entitled to all the rights of humanity? May we, consistently with the duties of morality and religion, dissolve the connections which love has endeared, and which God has sanctioned? May we subject their bodies to the galling chain and the mangling scourge? May we debase and brutalize their minds -- the unfailing consequence of placing one human being in abject submission to another?

"I would observe, in limine, that I lay out of my consideration all that part of the case which states that, if the slaves had been delivered by the defendant, according to his contract, to Hippias, the agent of the plaintiff, he would, in pursuance of the plaintiff's directions, have transported them to Charleston, in South Carolina; and that, according to the laws of that state, slaves may be there lawfully sold, and actions maintained on contracts similar to that declared on in this case. Had the defendant complied with his engagement, the transaction between these parties would have terminated at Rio Pongos. There the slaves were to have been delivered, and after their delivery, the defendant could have had no control over them. The intention of the plaintiff (and it was nothing more) to transport them to Charleston, was nothing to the defendant. For aught he could do, they might have been brought to Boston. It does not appear that the defendant was ever an inhabitant of South Carolina, or that it was expected that he would ever be within the jurisdiction of her courts. The only circumstance in the case from which it seems to have been imagined that the contract had any reference to the laws of South Carolina, was that the plaintiff was an inhabitant of that state, and that he intended to have carried the slaves thither for sale. The domicile of the plaintiff could certainly give no more locality to the transaction, than that of the defendant. His intention, as to the place of disposing of what he called his property, would have been revocable at any moment; and, indeed, in as much as that intention formed no part of the inducement to the contract, nor of the contract itself, but was to have operated, if at all, after the contract should have been executed, it is not cognizable by us. I do not, however, by what I have said, mean to admit that, if it could be rendered certain (which it never can be) that, if the slaves had been delivered, they would have been transported to South Carolina, that circumstance would have sanctioned a contract, which, in my opinion, is inherently and essentially vicious.

"In this view, it is pertinent to remark that, where a contract is immoral, or, as it is more technically termed, malum in se, a discussion about any lex loci is nugatory. It is only by the comity of nations that an action arising, not between subjects of a particular sovereignty, and without its limits, can be sustained by its courts, acting within those limits. This comity prevails amongst most civilized nations, and, as respects contracts, justice is generally administered in conformity to the laws of the country in which the cause of action arose. But it would be carrying our courtesy too far to enforce the execution of contracts in themselves vicious. No foreign nation can justly require, and no civility demands, that judges should thus become the panders of iniquity. If, therefore, according to an instance once before mentioned, a courtesan should bring her action in a court of law in England, to recover a reward for prostitution which had taken place in France, however such action might be sustained by the laws of the latter country, it certainly would not be by those of the former.(a) It will hence follow, that, should we even include in our consideration that part of this case which I have rejected as irrelevant, yet, still, if we consider the contract displayed before us as an immoral one, it will be of no avail that it is sanctioned by the laws of South Carolina.

"It would be a curious speculation to trace the history of slavery during the different ages of the world, its origin, its diversities, and the various absurd and fanciful reasons by which it has been attempted to be justified, excused, or palliated; but it will be sufficient to notice, that, since the mists of mental darkness have been dissipated, and the light of science has liberalized, and the spirit of Christianity humanized and softened, the character of man, there is a general concurrence in the opinion that no man is by nature a slave.(b) And for whatever causes a man, after his birth, may have justly become a slave, they surely are not to be presumed; and none are shown to us, with respect to those who are the subjects of this contract. We can draw nothing, then, from any known general opinion, which tends to sanction this transaction; but, on the contrary, we find that it is reprobated by it.

"The next inquiry is, whether this contract can be supported upon any principle of the common law of England, binding upon the courts of this commonwealth. It would be unnecessary for this purpose, were it practicable, to trace the origin, the progress, and the extinction of that kind of subjection known by the name of villenage; for, however immoral, cruel, and unchristian, it might be, and yet upheld by positive law, there is nothing in it analogous to negro slavery, by which the latter can be justified. It was confined to natives, and, probably, in its original intention, to the descendants of those who were captives in war. It could not, therefore, did it now exist in all its rigor, be adduced to justify the indiscriminate seizure, and reduction to slavery, of men over whom we have no control by birth, by conquest, or by territorial allegiance. But it does not continue. It was probably merely nominal, before it was finally abolished by the statute of Charles the Second; and that statute, if not expressly, by implication reprobated every principle on which it was founded. Here, then, no support can be found for the horrid practice of negro slavery.

"Since the introduction of colonial slavery, a number of cases have been adjudged in the English courts, in which the nature of the property, which may be acquired in a negro slave, has come in question.

"The earliest case which I can find was in the 29th of Car. 2.(c) It was an action of trover brought for negroes; and it was found by a special verdict, that the negroes were infidels, and the subjects of an infidel prince, and were usually bought and sold in the plantations as merchandise, by the custom of merchants, &c. The court seemed to hold, that negroes being usually bought and sold as merchandise, and also being infidels, there might be a property in them sufficient to maintain trover. But it was adjourned, and it does not appear that any judgment was ever given.

"In this and some subsequent cases, the infidelity of negroes was considered as a ground of property in them. There have been times, indeed, when it was holden, to the disgrace of human nature, not only by Mahometans, but by those who professed to be Christians, that the whole race of infidels might rightfully be reduced, by fire and sword, to the dominion of the faithful. Those were not times in which the rights of men would be respected or understood. By a progress in improvement, more just and enlightened opinions have been entertained.(d) The spirit of bigotry dictated that heathens were unworthy of all confidence and belief, and hence they were excluded from testifying in a court of justice.(e) The bitterness of that spirit cannot, perhaps, be more strongly shown, than by repeating what it induced so great and good a man as Sir Edward Coke, to express in Calvin's case;(f) that 'all infidels are in law perpetual enemies; for between them, as with devils, whose subjects they are, there is perpetual hostility, and can be no peace. For as the apostle saith, (2 Cor. 6,) Quae autem conventio Christi ad Belial? aut quae pars fideli cum infideli? Infideles sunt Christi et Christianorum inimici. And herewith agreeth the book in 12 H. 8, fol. 4, where it is holden that a pagan cannot maintain any action at all.'

"But these principles have since, by repeated decisions and constant practice, been exploded;(g) and they are gone, I hope forever, with the bigotry from which they originated. Chief Justice Willes, speaking of the foregoing opinion of Lord Coke, thus with great justness expresses himself: 'But this notion, though advanced by so great a man, is, I think, contrary, not only to the Scripture, but to common sense and common humanity; and I think that even the devils themselves, whose subjects he says the heathens are, cannot have worse principles.'(h)

"With respect to the custom existing in America, as found in the special verdict in the case of Butts vs. Penny, it is sufficient merely to remark, that a custom, as such, can have no validity, unless it be just and reasonable.

"In the case of Chambers vs. W___,(i) which was an action of trover for whelps, it is incidentally mentioned 'that it had been adjudged that trover lies of negroes.' No case is mentioned, and it is probable that the dictum referred to the case of Butts vs. Penny.

"There was another, and but one more case, in which it is said to have been holden that a man may have such property in a negro as to maintain trover. We have not the authority of the reporter that there was such an adjudication, but he reports it in the case of Chamberlain vs. Harvey,(k) as determined between Gelly and Cleve, and is communicated to him by another. This case can have no weight, when it is observed, that it is stated in a case which overrules that of Butts vs. Penny, and in which Lord Holt is reported to have said expressly, that 'trover will not lie for a negro.'

"The next case which I shall mention is Chamberlain vs. Harvey.(l) It was an action of trespass for taking a negro slave. A special verdict was found, by which it appeared that the plaintiff was entitled to the negro, as his slave, in Barbadoes, by the laws of that island. There was a very full and labored argument at the bar; but the opinion of the court is expressed without any reasons given for it. The case of Butts vs. Penny was overruled, and it was determined that trespass would not lie for taking a man generally, but by one of the reporters it is said to have been added, that 'there might be a special action of trespass for taking away his servant, per quod servitium amisit.' What was meant by these words, if they were spoken at all, or whether they were spoken in relation to the subject then before the court, it may be difficult to determine. It is sufficiently apparent from all the reports of the case, that trespass could not be supported for a negro slave, which it certainly could have been if he had been the property of the plaintiff.

"The next case which I shall notice was not, like the preceding ones, an action for a tort, but upon a contract. It was assumpsit to recover the price of a negro sold by the plaintiff to the defendant;(m) and the resemblance is consequently greater to the case before us. The sale was alleged to have been in England, and the plaintiff obtained a verdict. A motion was made in arrest of judgment, and the court determined that the action could not be supported in general, because the sale and contract were laid to be in England, the laws of which do not recognize negro slavery. But the chief justice is reported to have gone on, and observed to the counsel for the plaintiff, 'that he should have averred in the declaration, that the sale was in Virginia, and that, by the laws of that country, negroes are salable; 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.' Therefore he directed that the plaintiff should amend; but there is no evidence that any thing further was ever done in the action.

"In principle, as it seems to me, the case of Smith vs. Brown cannot be distinguished from that under consideration, except in one respect, which I shall hereafter mention. Here the contract was at Rio Pongos, and there were the slaves to have been delivered. We have no judicial information, that at that place slaves may be legally sold: nor have I any extra judicial information to that effect; and without information such a fact is certainly not to be presumed. By the general law, negroes are not transferable by contract; and if there is an exception to the general rule by the law of a particular place, and admitting that an action brought on such contract could be there supported, it must surely be necessary to aver in the declaration, that the contract was made in such a place, and also that the slaves were at that place, or at some place where they might be delivered to the vendee, without a trespass; and these averments must be substantiated by proof.

"I do not wish it to be understood as my opinion, that this action could be supported if those averments had been contained in the declaration, and the facts alleged by them stated in the case. But it is clear from the case of Smith vs. Brown, that without such averments the action could not have been supported in England. But if there had been no omission, either in the declaration or in the evidence, and judgment should have been rendered for the plaintiff, I should not consider it as a precedent in favor of the plaintiff in this action. The distinction which I above hinted at, I take to be this: By the constitution of England, (as understood by Lord Holt,) the king is the lawgiver of a conquered country, as Virginia was understood to be. The laws of Virginia were therefore but an emanation from the laws of England, and sanctioned by them. Of course Lord Holt might with propriety have thought that, sitting in an English court, it was not competent for him to invalidate such a law, given by the king of England. It is obvious that the circumstances, though indispensable to the support of that action, do not exist in this.

"The case of Smith vs. Gould(n) was an action of trover, among other things, for an Ethiopian called a negro; and after verdict for the plaintiff, it was moved in arrest of judgment, that trover lay not for negroes. After stating that, it was adjudged by the court, that 'men may be the owners, and therefore cannot be the subjects of property.' Villenage arose from captivity, and a man may have trespass quare captivum suum cepit, but cannot have trover de gallico suo; the reporter goes on to say, that the court seemed to think, that in trespass quare captivum suum cepit, the plaintiff might give in evidence, that the party was his negro, and that he bought him.

"What the court said or did, from which it seemed to the reporter that they so thought, it is impossible to know; but we may conclude, with certainty, that he was mistaken; for it is no less than a direct contradiction to say, as the court adjudged that a man cannot be the subject of property, and at the same time to say, as the reporter supposed that the court thought that a man, by buying a negro, might acquire such a property in him that he might support trespass for him. It is no less, in truth, than saying that a man may be, and that he cannot be, the subject of property. The reporter, then, was mistaken in what he supposed that the court seemed to think; and the opinion of the court, which he explicitly states, 'that a man cannot be the subject of property,' is decisive of the question before us, so far as we are to be influenced by English authorities. The defendant had not, nor could he obtain any property in the negroes, to be delivered, and of consequence could convey none to the plaintiff. In this view, the whole transaction was, as far as it went, and if it had been completed, would have been nugatory as a transfer of property; and it is nothing to the purpose, that, in point of fact, had Hippias obtained possession of the slaves, he would, as stated in the case, have transported them to Charleston, and thus they would have been in beneficial possession of the plaintiff.

"The last case which I shall mention is the celebrated one of Somerset vs. Stewart.(o) I have only considered this case as reported by Loft. The question arose on the return of a writ of habeas corpus. The facts were, that Mr. Stewart, whose slave Somerset was, in the Island of Jamaica, brought him over to England, and at the time of the service of the writ, he was detained by Mr. Stewart, for the purpose of sending him back to Jamaica, and there selling him as a slave.

"It is certainly to be regretted, that Mr. Loft did not make a more able and perspicuous report of this very interesting and important case; but the result is known, and sufficiently the reasons, on which it is founded. Somerset was discharged, because slavery is of so odious a nature, that it cannot exist, but by the force of positive law -- a municipal regulation against moral and political reason, and contrary to natural right. If this be so, and it be impossible for one man to possess dominion over the body of another as his slave, but as authorized by positive law, within certain local limits, it follows of necessary consequence, that a contract to deliver slaves not shown to be within those limits, is void. And attendant upon this is another obvious principle, that it must appear that the persons who are the subject matter of the contract, were at some time preceding that stipulated for the delivery, within the legal control of the party obliged to make the delivery; otherwise the contract is to commit a trespass of the most detestable nature. I have already noticed that, in the case before us, it is not stated that slavery is authorized or even suffered at Rio Pongos, and that we cannot form a presumption of that kind; and there is nothing from which we can draw a conclusion, that the negroes, who (in the language of the contract) were to be paid, were at any place where they were, or might have been, within the rightful control of the defendant. And besides, if the contract was, as I have already shown, in itself immoral, even were it sanctioned by the laws of the country where it was made, it could only be enforced by the courts of that country.

"Such are the English cases on the subject; and the attention, which has been paid to them, can find an apology only in a consideration of the importance of the subject. At least, since the decision of the case of Somerset vs. Stewart, it is determined that negro slavery can, under no form, nor with any qualification, exist in England; and the reasons on which the decision is founded, clearly show that any contract made, the object of which was to subject negroes to slavery, or to continue them in that state, is immoral and wicked.

"But, in my view, there is a circumstance in this case, which renders it infinitely stronger against the plaintiff than any of those which have been cited. They all related to such enslaved Africans as had been previously brought from their native country, whose chains of bondage had been riveted upon them, and whose slavery was established by the laws of the land to which they were transported. The injury was then complete. It was to them of little consequence for which of two masters they should toil. But the case at bar is far different. The plaintiff was to have received these slaves on the shores of their native country; perhaps from the very doors of their dwellings. The execution of the defendant's contract would not have been to transfer those unhappy people, already in bondage, from one master to another; but to seize his fellow-men, while in the enjoyment of freedom and the ordinary blessings which God bestows on his creatures of the race of man, and to deliver them to the plaintiff in slavery and chains. Every step he should have taken towards the execution of his contract, would have been marked with atrocious cruelty and injustice, and might rightfully have been resisted unto his death.

"I now proceed to examine how the question is affected by the constitution of the United States, the statutes of congress, and also by the constitution and laws of this commonwealth. I consider the states of the Union as distinct and independent sovereignties, to all intents and purposes, except so far as their powers are controlled by the letter or manifest intention of the national compact. I readily admit that the constitution of the United States is the paramount law of the Union, and that an act of the national legislature, passed in conformity to that constitution, is of superior obligation to the statutes, and even the constitutions of the several states. But it is to be remembered that all powers, not delegated to the United States, are reserved to the individual states.

"With these principles to guide us, let us examine what has Massachusetts conceded to the Union, in relation to this question, by entering into the national confederacy. She agreed, firstly, that, notwithstanding the repugnance of her own policy, and of her constitution previously adopted, she would become a member of a confederation, which for a limited time should not have the power of restricting other then existing members of the alliance from the importation of slaves, otherwise than by a small duty. This I take to be the precise meaning of the provision in the constitution; that 'the migration or importation of such persons, as any of the states now existing shall think proper to admit, shall not be prohibited by the congress prior to the year one thousand eight hundred and eight; but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.' This, considered as a stipulation on the part of the commonwealth, is merely an agreement not to interfere, within a definite period, with the practice of other states. Most assuredly it implies no obligation to aid a traffic which she herself had expressly reprobated before the adoption of the national constitution, by the refusing of her own state courts to sustain actions founded upon it.

"The only remaining article of the constitution of the United States, which is conceived to bear on this question, is in these words: 'No person held to labor or service in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.' Conformably to this provision of the constitution, a statute has been enacted, merely prescribing the mode in which the provision shall be carried into effect, and providing a penalty for its violation. It is extremely evident, that this passage of the constitution, as well as the statute founded upon it, both relate exclusively to the regulation of these unhappy people, after they have been imported and reduced to slavery in this country.

"If I am correct in treating the contract between these parties, as being simply for the sale of slaves at Rio Pongos, and in rejecting as irrelevant that part of the case which states the intention of transporting them to South Carolina, it will, I apprehend, be perfectly clear, that neither this provision of the constitution, nor the one I have previously commented upon, have any bearing upon the question.

"Nor do I think the result will be varied by considering what I have excluded, the intention of transporting the negroes to South Carolina, as a material part of the case. These articles of the constitution of the United States cannot be extended to equitable construction. Massachusetts is bound not to suffer her citizens to harbor persons already 'held to service' in another state, by the laws thereof: she is not bound to aid the importation of such persons, by sustaining in her courts actions on contracts made for that purpose, or in any other mode whatsoever.

"If, then, the question comes before us unshackled by the constitution and laws of the federal government, how is it affected by the laws of our own state?

"By the first article of the Declaration of Rights it is declared that 'all men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be recorded the right of enjoying and possessing their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.' These words have been, and may again be, construed to support wild and absurd theories; but in their most temperate meaning, I take them to be as decisive of this question, as any expressions which could be selected from the English language.

"If the liberties of men are unalienable, they could not have been transferred under this contract; and inasmuch as there was nothing on which it could operate, it was merely void.

"If it were not immoral also, I should think an action might be maintained on the original consideration, that is, the price of the cargo of the brigantine Hope. But if such a flagrant violation of natural rights, as must have attended the execution of this contract, be not immoral, it would be difficult to conceive what would be.

"In less than a year after the constitution was adopted and went into operation, it was solemnly adjudged by this Court, that negro slavery did not exist in the commonwealth, and that, had it previously existed, it would have been abolished by this article of the constitution.

"By a statute of the commonwealth, [1787, cap. 48,] after stating in the preamble that by the African trade for slaves, therein called an unrighteous commerce, many innocent persons have been, from time to time, sacrificed to the lust of gain, it is enacted 'that no citizen of this commonwealth, or other person residing within the same, shall for himself, or any other person whatsoever, either as master, factor, super-cargo, owner, or hirer, in whole or in part, of any vessel, directly or indirectly, transport, or buy, or sell, or receive on board his or their vessel, with intent to be imported or transported, any of the inhabitants of any state or kingdom in that part of the world called Africa, as slaves or as servants for a term of years.' The act then proceeds to provide a penalty for its infringement.

"I know not that it was ever contended, or imagined, that this act is at variance with the constitution of the United States. If it is not, it decides this branch of the question; for it is in direct variance with that construction of the constitution of the United States, for which the plaintiff is obliged to contend. The argument of the plaintiff is, that the constitution of the United States operates to compel the individual states to sanction contracts for the purpose of importing slaves from the coast of Africa, into such states as authorize the importation. If so, there certainly cannot be excepted from the operation of the constitution, contracts wherein either or both the parties are inhabitants of, or residents, in this commonwealth. Now, in this latter case, by the statute on which I am commenting, such a contract is an indictable offence. It were a curious dilemma, to receive a verdict in favor of the plaintiff, in action on a slave contract, from one jury box, and at the same time to hear him pronounced guilty from the other, in a criminal prosecution founded on the same transaction.

"Relative to this statute, I think it proper further to observe, that, in my opinion, it is conclusive, as to the question before us, -- the validity of this contract. If it was an immoral contract, it is invalid; and if the legislature has determined that such a contract is immoral, the Court is bound so to consider it. Now, the African trade for slaves (which is the subject of this contract) is in the preamble of the act termed an 'unrighteous commerce,' for a reason which affords, to my judgment, the most perfect satisfaction -- that by it 'the lives and liberties of many innocent persons have been from time to time sacrificed.' The trade is therefore, in the first section of the act, prohibited, and a punishment provided for all persons who shall be concerned in it. The trade is not prohibited from any consideration of policy, but because it is unrighteous. Now, I cannot conceive how the legislature could more strongly have expressed an opinion of the immorality of this trade, and, of consequence, of the contracts made to carry it on.

"If, then, as I think has sufficiently appeared, the species of contract, on which this action is founded, be in itself immoral; if it be reprobated by the law of nature and of nations, unsanctioned by the English common law, not forced upon us by the federal constitution, and expressly denounced and forbidden by our own constitution and laws, -- I see no reason to hesitate in giving my opinion in favor of the defendant."

(a) Per Wilmot, J., 2 Burr. 1084, Robinson vs. Bland.

(b) Grot. lib. 3, c. 7, § 1. -- Lib. 2, c. 5, § 27. -- Puffen. lib. 3, c. 2, § 8. -- Lib. 2, c. 5. -- Co. Lit. 116, b. -- Paley's Principles of Philosophy, 158. -- 1 Black. Com. 423, 424. -- 2 Black Com. 92, 93.

(c) 2 Lev. 201, Butts vs. Penny.

(d) 1 Black. Com. 425, and Christian's note thereon.

(e) Co. Lit. 6, b.

(f) 7 Rep. 14.

(g) 1 Wils. 84, Omichund vs. Barker. -- 1 Atk. 21, S. C. -- Willes's Rep. 588, S. C. -- 2 Show. 404, Fachina vs. Sabine.

(h) Willes's Rep. 542.

(i) 3 Lev. 336.

(k) 1 L. Raym. 147.

(l) 5 Mod. 186. -- Carth. 396, S. C. -- 1 L. Raym. 146, S. C.

(m) 2 Salk. 666, Smith vs. Brown.

(n) 2 Salk. 666.

(o) Loft's Rep. 1.

[Note 2] [These letters would have been clearly inadmissible if the writer had been living at the time of the trial. They were not admissible merely as being letters of an agent. There is no case in which the letters, declarations, or admissions, of a living agent, have been received to establish the truth of a matter against the party, whose agent he was not, and who, of course, gave him no authority, either express or implied, to write the letters, or make the declarations, or admissions. The letters, declarations, and admissions, of a living agent, are admitted in evidence only against his principal; and even then they are not received for the purpose of establishing the truth of the matter stated, but as representations, authorized by express or implied authority from the principal, to be made, and, therefore, as being regarded, in the eye of the law, as his own acts. -- Fairlie vs. Hastings, 10 Ves. 127. -- Kahl vs. Janson, 4 Taunt. 565. -- Langhorn vs. Alnutt, 4 Taunt. 511. -- Garth vs. Howard, 4 Bingh. 452. Phil. Ev. 8th ed. 401 -- 406. -- These letters, if admissible in evidence at all, could only be received as the declarations of a disinterested person, since deceased, having a peculiar knowledge of the facts stated, made in the ordinary course of official, professional, or other business, or duty, immediately connected with the transactions, or discharging it, and contemporaneous, or nearly so, with the transacting to which they relate. -- Doe vs. Turford, 3 Barn & Ad. 896. -- Poole vs. Dicas, 1 Bingh. N. C. 652. -- Chambers vs. Bernasconi, 1 Cr. & J. 451. -- 1 Tyr. 335. -- Glendon vs. Atkin, 1 Cr. & M. 420, per Bayley, B. See the cases cited and commented upon by Mr. Phillips, 8th ed. Phil. Ev. 332--352. -- Ed.]

[Note 3] [These suppositions do not seem to correspond with the facts of the case as reported. Here was no such new agreement. Certainly the case finds no express agreement to pay in cash, and no implied agreement could be raised upon the facts upon which an action could be maintained. -- Perkins vs. Savage, 15 Wend. 412 -- Ed.]

[Note 4] [Here does not seem to have been any evidence upon which an account stated could be maintained. The amount, and the written promise, must be taken together, as each making part of one and the same transaction. There was no acknowledgment of money due, simply, or promise to pay money, but merely an acknowledgment of having received certain moneys, for a certain number of slaves, which defendant promised to deliver to the plaintiff. -- Ed.]