34
Here then we have the clearest possible recognition of a slave who
is owned much as a chattel can be owned, and it must logically
result that there is a right to follow and regain by use of any
lawful means the rights of ownership in and possession of the
property of which he has been deprived by the absconding of his
slave. Fortunately the learned Circuit Judge has found that no
more force than was reasonable was used in the re-taking of the
person here concerned, so that much of the difficulty which I
should otherwise have felt in construing the word ‘‘ unlawfully
(as found in section 8 sub-section (8) of Cap. 167) disappears—ior,
ag I have indicated above, it follows that if slavery in the Pro-
tectorate is recognised then the use of reasonable force in the
re-taking of a run-away slave must also be recognised.
So that the only difficulty, as it appears to me, is whether this
sub-section (8) which makes it an offence to use any form of coercion
or restraint in unlawfully compelling the service of any person
directly and specifically destroys that logical consequence of the
right to own a slave, i.e., the right to use a reasonable amount of
force in re-taking him after he has run away.
A portion of my learned brother Aitken’s very lucid judgment
gets over this difficulty and for my part I will only add that the use
of that term ‘‘ unlawfully >’ cannot mean that the employment of
any form of coercion in the re-taking is forbidden by the law for
the simple reason indicated, viz.. that it would reduce the former
provision of the Ordinance to a manifest absurdity. There ob-
viously must be coercion of a kind used. It must be as absurd to
deny an owner of a slave his rights to re-take a run-away slave as to
deny a husband certain rights which follow on a lawfully contracted
marriage.
So that we must give the word ‘* unlawfully *’ some other mean-
ing, and I think Mr. Wright's view is correct when he savs, after
pointing out significantly that the word ‘‘ unlawfully *’ appears
only in this the last sub-section of section 8, that only those persons
can be held under that sub-section to compel unlawfully who use
coercion or restraint in defiance of other provisions of the Ordinance,
e.g., where a person to whom a slave has been unlawfully transferred
compels that slave to serve him. Until the Legislature makes it
perfectly clear that no such right to re-take is to be recognised, 1
cannot find that the law as it stands at present denies that right
to the slave owner in the Protectorate.
I am of the opinion therefore that the re-taking in this instance
was lawful and no assault was committed, from which it follows of
course that there has been no conspiracy and both convictions must
be quashed.
S. BawrEY-COoOKSON, J.,
President,
1. VII. 27.