Opinions on the Subject of Negro Servitude

Legal documents contain unusual words, or words used in unusual ways. Here are some of the terms used in the documents.

Trover

Trover signifies finding. The remedy is called an action of trover; it is brought to recover the value of personal chattels, wrongfully converted by another to his own use; the form supposed that the defendant might have acquired the possession of the property lawfully, namely, by finding, but if he did not, by bringing the action the plaintiff waives the trespass; no damages can therefore be recovered for the taking, all must be for the conversion.

It will be proper to consider the subject with reference, 1. To the thing converted. 2. The plaintiff's right. 3. The nature of the injury. 4. The pleadings. 5. The verdict and judgment.

1. The property affected must be some personal chattel; and it has been decided that trover lies for title deeds; and for a copy of a record. Trover will be sustained for animals ferae naturae, reclaimed. But trover will not lie for personal property in the custody of the law, nor when the title to the property can be settled only by a peculiar jurisdiction; as, for example, property taken on the high seas, and claimed as lawful prize, because in such case, the courts of admiralty have exclusive jurisdiction. Nor will it lie where the property bailed has been lost by the bailee, or stolen from him, or been destroyed by accident or from negligence case is the proper remedy.

2. The plaintiff must at the time of the conversion have had a property in the chattel either general or special; he must also have had actual possession or right to immediate possession. The person who has the absolute or general property in a personal chattel may support this action, although he has never had possession, for it is a rule that the general property of personal chattels creates a constructive possession. One who has a special property, which consists in the lawful custody of goods with a right of detention against the general owner, may maintain trover.

3. There must have been a conversion, which may have been effected, 1st. By the wrongful taking of a personal chattel. 2d. By some other illegal assumption of ownership, or by illegally using or misusing it; or, 3d. By a wrongful detention.

4. The declaration should state that the plaintiff was possessed of the goods (describing them) as of his own property, and that they came to the defendant's possession by finding; and the conversion should be properly averred, as that is the gist of the action. It is not indispensable to state the price or value of the thing converted. The usual plea is not guilty, which is the general issue.

5. The verdict should be for the damages sustained, and the measure of such damages is the value of the property at the time of the conversion, with interest. The judgment, when for the plaintiff, is that he recover his damages and costs; when for the defendant, the judgment is that he recover his costs.

Conversion

The unlawful turning or applying the personal goods of another to the use of the taker, or of some other person than the owner; or the unlawful destroying or altering their nature.

When a party takes away or wrongfully assumes the right to goods which belong to another, it will in general be sufficient evidence of a conversion but when the original taking was lawful, as when the party found the goods, and the detention only is illegal, it is absolutely necessary to make a demand of the goods, and there must be a refusal to deliver them before the conversion will be complete. The refusal by a servant to deliver the goods entrusted to him by his master, is not evidence of a conversion by his master.

The tortious taking of property is, of itself, a conversion and any intermeddling with it, or any exercise of dominion over it, subversive of the dominion of the owner, or the nature of the bailment, if it be bailed, is, evidence of a conversion.

Trespass

The name of an action, instituted for the recovery of damages, for a wrong committed against the plaintiff, with immediate force; as an assault and battery against the person; an unlawful entry into his land, and an unlawful injury with direct force to his personal property. It does not lie for a mere non-feasance, nor when the matter affected was not tangible.

The subject will be considered with regard, 1. To the injuries for which trespass may be sustained. 2. The declaration. 3. The plea. 4. The judgment.

1. The action of trespass is the proper remedy for injuries to personal property, which may be committed by the several acts of unlawfully striking, chasing, if alive, and carrying away to the damage of the plaintiff, a personal chattel, of which another is the owner and in possession; but a naked possession or right to immediate possession, is a sufficient title to support this action.

2. The declaration should contain a concise statement of the injury complained of, whether to the person, personal or real property, and it must allege that the injury was committed vi et armis and contra pacem; in which particulars it differs from a declaration in case.

3. The general issue is not guilty. But as but few matters can be given in evidence under this plea, it is proper to plead special matters of defence.

4. The judgment is generally for the damages assessed by the jury, and for costs. When the judgment is for the defendant, it is that be recover his costs.

Per Quod Servitium Amisit

The action per quod servitium amisit, which dates from medieval England, is for damages for loss of services. It permits a master to claim compensation for damages arising from injury to his servant. See Report on the Action Per Quod Servitium Amisit - BC Law Institute (1985) at http://www.bcli.org/pages/publications/lrcreports/repsum89.html.

5. Geo. 2. C. 7.

English law statute 5 George II, chapter 7 (1732). The act is titled "An Act for the more easy Recovery of Debts in his Majesty's Plantations and Colonies in America"; it states that "...the Houses, Lands, Negroes, and other hereditary and Real Estates, situate or being within any of the said Plantations, belonging to any Person indebted, should be liable to, and chargeable with, all just Debts, Duties, and Demands, of what Nature or Kind soever, owing by any such Person to his Majesty, or any of his Subjects...". The part of the act that includes "Negroes" was explicitly repealed in 1797 (37. Geo. 3 c. 119), a fact that Joseph Aplin does not mention. See http://home.wxs.nl/~pbdavis/Legis_23.htm.

23. Geo. 2. C. 31.

English law statute 23 George II, chapter 31 (1749-50). The act is titled "An Act to settle the Trade to Africa"; it has 21 sections, of which several refer to the slave trade. For a thorough discussion of this act and its relevance to the slave trade, see Unconstitutionality of Slavery by Lysander Spooner (1845), page 24ff. Spooner disagrees most emphatically with the interpretation of this act as typified by Joseph Aplin, particularly with the interpretation of the line quoted: "that the trade to and from Africa, being very advantageous to Great Britain, and necessary for the supplying the Plantations and Colonies belonging thereto, with a sufficient number of Negroes, at reasonable rates, ought to be free and open to all his Majesty's subjects." Spooner points out that the wording says nothing of slaves, only of Negroes, who were not considered automatically slaves by any English law.

2. Salk. 666 / Ray. 1274.

This notation refers to two related court cases.

The case of Smith vs. Browne and Cooper (1701) concerned the sale of a slave in London, which was disputed on the grounds that there was no slavery in England. Chief Justice Holt in his judgement said "as soon as a Negro comes into England he becomes free; and one may be a villein in England, but not a slave". He then allowed the claimant to change his claim to state that the law of Virginia applied, and that under that law, Negroes could be "sold as chattels".

In the case of Smith vs. Gould (1706, also reported as Ray. 1274.), Chief Justice Holt held that an action would not lie to recover possession of a slave, as no man could have property in another except in the special circumstances of villeinage, the law not recognising that black people were different from other people.