Stripped of all technicalities, and even of all reference to the manifest possibility of such a circumstance arising as that the Chief-justice, if a member of a cabinet, may have a share in ordering the institution of a prosecution which, as a judge, it may be his lot to try, one consideration which is undeniable is, that a member of a cabinet is of necessity, and by the very nature of his position in it, a party man, and that it is of preeminent importance to the impartiality of the judicial bench, and to the confidence of the people in the purity, integrity, and freedom from political bias of their decisions, that the judges should be exempt from all suspicion of party connection. Lord Campbell even goes the length of saying, what was not urged on either side of either House in these debates, that it was alleged by at least one contemporary writer that Lord Mansfield's position in the cabinet did perceptibly influence some of his views and measures respecting the Press;[157] and, though in both Houses the ministry had a majority on the question of the propriety of the appointment, he records his own opinion[158] that "the argument was all on the losing side;" and that Mr. Fox showed his consciousness that it was so by his "concession that the Chief-justice should absent himself from the cabinet when the expediency of commencing prosecutions for treason or sedition was to be discussed." He adds, also, that "it is said that Lord Ellenborough himself ere long changed his opinion, and, to his intimate friends, expressed deep regret that he had ever been prevailed upon to enter the cabinet."
But, if the composition of the cabinet of 1806 has in this respect been generally condemned, on the other hand the annals of that ministry, short-lived as it was, are marked by the enactment of one great measure which has been stamped with universal approbation. It may, perhaps, be said that the existence, promotion, discouragement, or suppression of a branch of trade has no title to be regarded as a constitutional question. But the course which the British Parliament, after a long period of hesitation, has adopted respecting, not only the slave-trade, but the employment of slave-labor in any part of the British dominions, is so intimately connected with the great constitutional principle, that every man, whatever be his race or nation or previous condition, whose foot is once planted on British soil, is free from that moment, that it cannot be accounted a digression to mention the subject here. To our statesmen of Queen Anne's time traffic in slaves was so far from being considered discreditable, that the ministry of that reign prided themselves greatly on what was called the Assiento Treaty with Spain, by which they secured for the British merchants and ship-owners the privilege of supplying the West India Islands with several thousand slaves a year. In 1748 the ministers of George II were equally jealous of the credit of renewing it. It had even on one occasion been decided in the Court of Common Pleas that an action of trover could be maintained for a negro, "because negroes are heathens;" though Chief-justice Holt scouted the idea of being bound by a precedent which would put "a human being on the same footing as an ox or an ass," and declared that "in England there was no such thing as a slave." Subsequent decisions, however, of two Lord Chancellors-Lord Talbot and Lord Hardwicke-were not wholly consistent with the doctrine thus laid down by Holt; and the question could not be regarded as finally settled till 1772, when a slave named Somersett was brought over to England from Jamaica by his master, and on his arrival in the Thames claimed his freedom, and under a writ of
habeas corpus had his claim allowed by Lord Mansfield. The master's counsel contended that slavery was not a condition unsanctioned by English law, for villeinage was slavery, and no statute had ever abolished villeinage. But the Chief-justice, in the first place, denied that villeinage had ever been slavery such as existed in the West Indies; and, in the second place, he pronounced that, whether it had been or not, it had, at all events, long ceased in England, and could not be revived. "The air of England has long been too pure for a slave, and every man is free who breathes it. Every man who comes into England is entitled to the protection of English law."[159] But this freedom was as yet held to be only co-extensive with these islands. And for sixty years more our West India Islands continued to be cultivated by the labor of slaves, some of whom were the offspring of slaves previously employed, though by far the greater part were imported yearly from the western coast of Africa. The supply from that country seemed inexhaustible. The native chiefs in time of war gladly sold their prisoners to the captains of British vessels; in time of peace they sold them their own subjects; and, if at any time these modes of obtaining slaves slackened, the captains would land at night, and, attacking the villages on the coast sweep off the inhabitants on board their ships, and at once set sail with their booty. The sufferings of these unhappy captives in what was called the "middle passage"-the passage between their native land and the West India Islands-were for a long time unknown or disregarded, till, early in Pitt's first ministry, they attracted the notice of some of our naval officers who were stationed in the West Indies, and who, on their return to England, related the horrors which they had witnessed or heard of-how, between decks too low to admit of a full-grown man standing upright, the wretched victims, chained to the sides of the ships, lay squeezed together in such numbers, though the whole voyage was within the tropics, that, from the overpowering heat and scantiness of food, it was estimated that two-thirds of each cargo died on the passage. Most fortunately for the credit of England, the fearful trade was brought under the notice of a young member of Parliament singularly zealous in the cause of humanity and religion, endowed with untiring industry and powerful eloquence, and connected by the closest ties of personal intimacy with Mr. Pitt. To hear of such a system of organized murder, as the British officers described the slave-trade to be, was quite sufficient to induce Mr. Wilberforce to resolve to devote himself to its suppression. He laid the case in all its horrors before his friend the Prime-minister, a man as ready as himself to grapple with and extinguish all proved abuses; and Pitt at once promised him all the support which he could give. It was no easy task that he had taken on himself. A year or two before, Burke had applied himself to frame some regulations which he hoped might gradually remove the evil; but, little as he was moved by considerations of popularity or daunted by difficulty, he had abandoned the attempt, as one which would meet with a resistance too powerful to be overcome. Wilberforce was not a bolder man than Burke, but he had no other object to divide his attention, and, therefore, to this one he devoted all his faculties and energies, enlisting supporters in every quarter, seeking even the co-operation of the French government, and opening a correspondence with the French Secretary of State, M. Montmorin, a statesman of great capacity, and, what was far rarer in France, of incorruptible honesty. M. Montmorin, however, though alive to the cruelty of the traffic, was unable to promise him any aid, alleging the fears of the French planters that its abolition "would ruin the French islands. He said that it was one of those subjects upon which the interests of men and their sentiments were so much at variance, that it was difficult to learn what was practicable."[160]