Trespass for inslaving the plaintiff.

Caesar a molatto man (otherwise called Caesar Hendrick) of said Newbury Port labourer in a plea of trespass for that the said Richard Greenleaf at said Newbury Port on the 1 of January last, with force and arms assaulted the plaintiff then and there being in our peace, and then and there with force as aforesaid falsely imprisoned him and so with force as aforesaid and against the plaintiffs will hath then held kept and restrained him in servitude as the said Richard's slave from the same day untill the day of the purchase of this writ and many other injuries and enormities the said R.G. to the Plaintiff then and there did against our peace. Damages £50. Dated March 16. 1773.

Plea. And the said R.G. comes and defends when and where &c. and protesting that the said Caesar is his molatto Slave and that by law he is not held to answer to the said Caesar on his declaration aforesaid yet nevertheless the said R. for plea saith (on the plaintiffs agreeing that he the said R.G. may on the trial give any special matter in evidence for his Justification and that the same shall avail as if specially pleaded) he is not guilty in manner and form as the plaintiff hath declared, and thereof puts himself on the Country.

Farnham.

The Egyptians, Grecians, Jews, Romans, held many in slavery.

Province law. pa. 82.2 144–5. 152.3 Shew there were many slaves 65in the province at the time of making those laws, held in slavery, and not to be manumitted, without security, &c.

Lowell.

The Defendants plea acknowledgeth him a molatto and therefore must have had a white parent, either father or mother.

Certificate of his baptism and that he is a member of Mr. Parson's church,4 read.

Admitting there are slaves in the province yet the plaintiff may be none and in fact is not one, as he will prove.

Villeins these were known in the English law. We have nothing to do with any other laws. Those of Egypt, Greece or Rome are nothing to Englishmen. At Common law partus non seq. ventrem, otherwise it may be in the civil law—but this law never adopted by English law in this case by the English law Villeins follow the state of the father not of the mother.

But objected by Farnham in Villeinage there was marriage, in this case none, so not applicable.

Matrimony a duty and right, and plaintiff by law of nature must provide for his issue, therefore must be free that he may discharge his duty and enjoy his right. No human tribunal can take away natural rights so fundamental.

The precepts of revealed law, golden rule of the gospel are that we are not to sell our brethren, that we are to do as we would be done unto.

He is a Christian and if held in Slavery may not perform his duties as one. His master did not object to his baptism and becoming a xtian.

Liberty is not to be taken from him by implication of law. There must be express law for it.

The province laws read establish Slavery only by implication if it does at all.

Plaintiff must be free unless a slave by common law, Statutes of Great Britain, or law of the province.

But even villeinage is abolished by English law. The Common law abhors slavery.

Somersett case shews every one setting his foot on English ground to be free, wherever he came from.5

Usage and custom must be for time whereof memory of man is not to the contrary, and must be reasonable, just, constant and right.

But in this country, in the Colonies, none such because records shew the beginning.

The old Colony law shews no slaves but those made by their own consent or by taking in lawful war.6

Superior Court hath determined this country too young for usage and custom time whereof &c.7

Foster Crown law, as to legality of impressing mariners, says impress had been ever Since existence of the nation, at least from William the Conqueror.8 Yet if it was not of public necessity it ought not to be esteemed law but England being an Island there was necessity it must be guarded by ships and seamen and of Course impresses legal. But Hume in his history questions Fosters law.9 And Foster pretends none but temporary right and while exigencies of war require.10

Some Legislatures Southward in the colonies have enacted, that blacks, as negroes are Slaves.11

Hobart 87. Act of Parliament. Jura naturae immutabilia. An act of parliament against natural Equity, as to make one Judge in his own cause is void.12

The province law is to be extended only for the purpose mentioned in it, as to manumission, as to charge of supporting them &c. nothing as to the right of enslaving the negroes.

Caesar and Greenleaf (as I suppose) the foregoing case.13

J udge  Frye. 14 The defendant by the province law and by the custom of the country seems to justify his doings. The laws suppose slavery. The master by admitting the baptism &c. seems to have in a measure given the plaintiff his liberty. Shall this humanity be taken against the defendant?

N.B. This case I copied from Mr. Pynchon's report of it, and am uncertain whether J. Frye gave the above opinion in this case or some other.