negro slaves; and that negro slaves, brought in the course of the said trade from Africa to Virginia and Jamaica aforesaid, and the said other colonies and plantations in America, by the laws of Virginia and Jamaica aforesaid and the said other colonies and plantations in America, during all the time aforesaid, have been, and are saleable and sold as goods and chattels, nal, was passed on the 23d day of May, 1775. After which, it seems (see Mr. Benet's account of Dudingston, in the 18th vol. of sir John Sin that the coal masters strove to insure the dependence of their coalliers, and consequently the perpetuity of their services, by seducing them into their debt: to remedy which, by stat. 39 Geo. 3, c. 56, among other provisions respecting colliers in Scotland, it was enacted, That no action shall be competent for money ad "Eneas Sylvius was in Scotland in James the 1st's time. The defender does not know if the pursuer means by the expression of Jacobus quadratus to insinuate that it was inclair's Statistical Account of Scotland, p. 370,) James the 4th's time; but if he does so, it's a mistake, for Æneas Sylvius died pope in the 5th year of James 3, viz. 23 years before James 4 succeeded; and there is no doubt that his journey to Scotland was in James the 1st's time, probably about the year 1430. He then describes coal to have been in common use in Scotland; and it would appear very oddvanced by, or on behalf of coal owners or if there had been no coal-pits in Scotland 60 years before that, to which the charter above recited brings down the existence of villeins or nativi. "The quotation therefore from Eneas Sylvius is a proof of the direct contrary of what the pursuer endeavours to infer from it. "The circumstance of two Italians being surprised at seeing pit-coal affords no sumption that it had not been used for many centuries in Scotland. It happens every day, that Englishmen are not believed in that country, when they describe our coal to them even at present. lessees to colliers, except for support of their families in case of sickness,' in which case a specific mode of procedure is provided. In the negro case in France, which, under the title of La Liberté reclamée par un négre contre son maitre qui l'a amené en France,' is reported in the 13th vol. of Les Causes Cé. lébres,' &c. p. 492, edit. of 1747, and which I pre-apprehend was determined in the year 1738, or soon afterwards, the questions before the Court appear to have been, 1st, Whether the party claiming the negro was such a person, as, by the French king's edict of October 1716, was permitted, under certain formally prescribed con"The defender does not know what the pur-ditions, to bring negro slaves from the French suer means by asserting, that it is well known, Scotland was very much covered with wood during the reigns of the Jameses. As Eneas Sylvius, who was an eye-witness, declares, that in the time of James 1, it was perfectly bare of wood; and it is exceedingly probable, that the immemorial use of pit-coal before that period, had induced the inhabitants to cut down all the wood, without leaving or providing sufficiently for that kind of fuel. "It is needless to enter, with the pursuer, into the disquisition, whether the state of coalliers be a severe kind of slavery or not; as it is eertainly much more so than that to which the defender claims to reduce him." West Indian colonies into France, and to retain them there: and 2dly, Whether he had performed those conditions; with respect to which it was provided in the edict, that, "faute par les maitres des esclaves d'observer les formalités préscrites par les précedéns articles, les dits esclaves seront libres, et ne pourront être reclamés." For though M. le Clerc, Procureur du Roi, did indeed mention, that neither the edict of March 1685, nor that of October 1716, had been registered in the parliament of Paris, or transmitted to the proper officer of the court of admiralty, yet it very clearly appears, that he did not lay much stress on these topics. It is perhaps worthy of notice in this place, But the eloquence of M. le Clerc and the that though the memorial of Mr. Maconochie other advocates who argued the case expa(lord Meadowbank) bears date April 25, 1775, tiated far beyond the narrow limits of the dry and that of Mr. Ferguson (lord Pitfour) bears and uninteresting questions of mere positive date July 4, 1775, no notice is taken of the law which I have stated. The powers of their statute 15 Geo. 3, c. 28, by which after recit- learning and of their oratory were called forth in ing that by the statute law of Scotland, as ex- all their vigour, to describe the character and plained by the courts of law there, many col- narrate the history of slavery, to display its liers and coal bearers, and salters, are in a state incongruity with the benevolent doctrines of of slavery or bondage, bound to the collieries Christianity, and above all to impress upon and salt works, where they work for life, trans- their hearers, that slavery was utterly and irferable with the collieries and salt works, when reconcilably opposite to the nature of France their original masters have no farther use for and of Frenchmen, and to the original principles them, it is enacted, that colliers, coal bearers, and established administration of their constiand salters, shall not be bound to any colliery tution and government; insomuch, that to or salt work, or to the owner thereof, in any touch the soil or to inspire the air of France way or manner different from what is per- was to be free. Throughout the arguments mitted by the law of Scotland, with regard to this last position not only was undisputed by servants and labourers. either party, but was by all parties either asThis statute, it appears, by the Lords' Jour-sumed, or admitted, as the incontrovertible as and upon the sale thereof have become and been, and are the slaves and property of the purchasers thereof, and have been, and are sertion of a notorious fact. Yet, at the same time, it was on all sides propounded and inculcated, with a diligence and copiousness of repetition, which is not commonly expended upon the maintenance of indisputable truths. I have extracted from the report the following passages, which, I believe, will sufficiently confirm what I have stated. They may also afford amusement, if not instruction, by exhibiting the complacency-perhaps I should rather say the triumph-with which, under the reign of Lewis the 15th, the descendants of the ancient Franks could rhapsodise concerning li. berty:* "Il s'est toujours regardé comme libre, depuis qu'il a mis le pied en France," p. 495. 46 Dès qu'un esclave y" [sc. en France]" a mis le pied, il y acquiert la liberté," p. 504. "Dès qu'un esclave est entré en France, il devient libre," p. 504.. "Il faut conclure que l'esclave est devenu libre, dès le premier instant de son arrivée en France," p. 508. "L'entrée dans la ville de Paris assure le maintien, et devient l'asile, de la liberté.- Est' [sc. Lutetia) sacro-sancta civitas, quæ præbet omnibus libertatis atrium quoddam, asi'liúmque immunitatis,"" pp. 511. 526. "Je ne me propose point ici, de porter la moindre atteinte au plus précieux de nos biens: je ne prétens point envier, à l'heureux climat que nous habitons, cette prérogative éminente, attachée à la seule entrée en ce royaume," [this phrase occurs again in p. 598.]" et qui forme le gage le plus assuré de la liberté, dont nous jouissons nous-mêmes," p. 512. "Je ne craindrai pas d'avouer avec tous les auteurs, qu'on ne connoit point d'esclave en France, et que si tôt qu'un esclave étranger a mis le pied sur notre continent, il est gratifié de la liberté," p. 520. "On ne connoit point d'esclave en France, et quiconque a mis le pied dans ce royaume, est gratifié de la liberté," p. 525. "Testatur Benedictus, servos, qui Tholo'sam aufugerant, urbis ingressu ipso, liberos 'factos et cives,"" p. 527. "Les maximes si précieuses du droit François accordent à la seule entrée dans ce royaume, au seul air qu'on y respire, le droit de la liberté, le don de la franchise; j'ai adopté ces maximes, je leur ai rendu tout l'hommage, qu'elles éxigent des cœurs vraiment Fraufois," p. 532. "La France se fait gloire de communiquer * Mr. Burke (Reflections on the Revolution in France, &c. 4th ed. p. 93) remarks, that " it Was in the most patient period of Roman serVitude that themes of tyrannicide made the ordinary exercise of boys at school-' cùm perimit sævos classis numerosa tyrannos.'" The line is in Jurenal, Sat. 7, v. 151. saleable and sold by the proprietors thereof as goods and chattels. And I do further certify and return to our said lord the king, that James le beau privilège d'affranchissement à tous les esclaves, lorsqu'ils entrent dans ce climat henreux, dont le seul nom répand de toute part la bonne odeur de la liberté," p. 539. "Il n'est point d'esclave en France; nos constitutions, nos usages étendent la faveur de la liberté à tous les hommes en général qui l'habitent," p. 539. "Il ne peut y avoir d'esclaves dans ce royaume; il suffit méme d'y etre etabli, ou d'y faire sa résidence, pour acquérir le bien precieux de la liberté," p. 544. "Nos privilèges ont effacé jusqu'à l'idée de l'esclavage en France," p. 546. "Il n'y a en France aucuns esclaves; et la coutume y est telle, que non seulement les François, mais aussi les étrangers, prenant port en France, et criant France et Liberté, sont hors de la puissance de celui, qui la possédoit," p. 549. "La France, mère de liberté, ne permet aucuns esclaves," p. 549. "Les esclaves ont en France le privilège de se remettre en possession de leur liberté, au moment qu'ils sont entrés dans les terres de ce royaume," p. 551. "De tems immémorial l'esclavage n'a point lieu en France, et l'esclave étranger devient libre, aussitôt qu'il y aborde,” p. 551. "Douter si en France un homme est libre, si un esclave acquiert sa liberté par son entrée en France, c'est attaquer l'autorité souveraine de nos rois, et faire injure à la nation," p. 498. To these may be added the following more early authority: "Toutes personnes sont franches en ce roy-aume, et sitost qu'un esclave a atteint les marches diceluy se faisant baptizer, il est affranchi." Institutes Coustumières, (published at Paris in 1679) p. 2, cited by Mr. Barrington in his Obs. on stat. 1 Rich. 2, where he has collected some curious particulars, relating to slavery. tensions of the negro, admitted and maintainM. Tribard, who pleaded against the preFrance, as a general rule; but contended that ed the proposition that there were no slaves in the case of negroes, belonging to French West Indian colonists, was, by the edict of 1685, specifically excepted from its operation. "Si en France," says he, "on ne connoit point d'esclaves, si la seule arrivée dans ce royaume, procure la liberté, ce privilège cesse à l'égard des esclaves négres François: quelle en est la raison? C'est qu'en France, c'est que par une loi de la France même, les esclaves négres de nos colonies sont constitués dans un esclavage nécessaire et autorisé," p. 529. After noticing an Arrêt' of the parliament of Toulouse, reported by Bodin, he proceeds, "Quel peut être l'effet, quelle peut étre l'in Sommersett, in the said writ hereunto annexed named, is a negro, and a native of Africa; and that the said James Sommersett, long before the coming of the said writ to me, to wit, on duction de cet arrêt, vis-à-vis d'un édit qui deux { siècles après, pour soutenir la splendeur d'un état, les forces et la puissance de la nation, a établi une servitude nécessaire sur cette partie des sujets du roi ?” p. 531. Again "Voilà donc la seule induction, uniquement par rapport aux étrangers, et aux esclaves des étrangers,' p. 527. It must be confessed that the pleading of M. Tribard was not very convincing. Of the style and cogency of his argumentation the following absurd false and despicable common places may suffice as samples: "Ceux qui l'infortune de la guerre assujetissoit aux vainqueurs furent appellés esclaves, servi, bien | moins à serviendo, qu'à servando," p. 514. "Neque enim libertas tutior ulla est, quàm domino servire bono," p. 538. Judgment was given for the Negro. The Code Noir, as it was called, was an edict bearing date in March 1685, which was issued by Lewis the 14th. It contains various regulations respecting the condition and treatment, the rights and duties of negro slaves, and freed negroes, and of the French West Indian colonies.* This Code Noir' is cited in the pleadings in the negro case reported in the Causes Célébres;' but I do not perceive that it at all concerns that particular case, except in so far as it recognizes, and establishes the status of slavery; on which account indeed much reliance was placed on it in the pleadings for the party who claimed to be owner of the negro. In October 1716, Lewis the 15th published an edict, concernant les esclaves négres des colonies,' by which, after reciting, inter alia, "comme nous avons été informés, que plusieurs habitans de nos isles de l'Amérique désirent envoyer en France quelques uns de leurs * In Mr. Hargrave's Argument in the text, this edict is said to have been made in May 1685, but in the copy of the edict which is inserted in the 13th volume of the "Causes Célébres," the date is twice mentioned to be March 1685. In that volume the edict bears the following title, "Le Code Noir ou Edit du Roi servant de réglement pour le gouvernement et l'administration de la justice et de police des Isles Françoises de l'Amérique, et pour la discipline et le commerce des négres et esclaves dans le dit pays." In the preamble the objects of the edict are stated to be " y maintenir la disciplins de l'église catholique, apostolique, et romaine, et y régler ce qui concerne l'état et la qualité de nos esclaves dans nos dites isles." And accordingly all its provisions relate to the concerns of religion, of slaves, or of freed persons. In the mouth of August, 1685, the king issued another edict for the establishment of courts of justice in St. Domingo. | the 10th day of March in the year of our Lord was a negro slave in Africa aforesaid, and afterwards, to wit, on the same day and year last aforesaid, being such negro slave, esclaves, pour les confirmer dans les instructions et dans les éxercices de notre religion, et pour leur faire apprendre quelque art et métier, dont les colonies recevroient beaucoup d'utilité par le retour de ces esclaves; mais que ces habitans craignent que les esclaves ne préten. dent être libres en arrivant en France, ce qui pourroit causer aux dits habitans une perte considérable, et les détourner d'un objet aussi pieux et aussi utile ;" "Le Roi ordonne que si quelques uns des habitans des colonies, ou des officiers employés dans l'état veulent amener avec eux des esclaves négres de l'un ou de l'autre sexe, en qualité de domestiques ou autrement, pour les fortifier dans la religion, &c. les propriétaires seront tenus d'en obtenir la permission des gouverneurs généraux ou commandans dans chaque isle, laquelle permission contiendra le nom du propriétaire, celui des esclaves, leur âge, et leur sigualement. "Les propriétaires des dits esclaves seront pareillement obligés de faire enregistrer ladite permission au greffe de la jurisdiction du lieu de leur résidence avant leur départ, et en celui de l'amirauté du lieu du débarquement, dans huitaine après leur arrivée en France." The edict next proceeds to establish correspondent regulations for the case of negro slaves whom their owners shall send under the care of other persons from the colonies to France. It then ordains that negroes so by their owners brought or sent into France shall not by reason thereof acquire any right to their freedom, but shall be compellable to return to the colonies at the will of their owners: it is provided however, that in case the owners have neglected to comply with the prescribed regulations, the negroes shall become free, and the owners shall lose all property in them. The remainder of the edict does not affect the case before us. Mr. Baron Maseres (Historia Anglicanæ Selecta Monumenta, pp. 13, 381,) observes of a passage in the Encomium Emmæ that " it plainly shews that there were at this time in Denmark several men in a state of slavery, called in this passage servi; and others that were freed-men, or that, after having been slaves, had been made free, ex servis liberti; and a third set of men who had always been free, but were not noble, and who are in this passage called ignobiles, and probably were the husbandmen and bandycraftsmen of the country; and, lastly, a fourth set, who were called noblemen, nobiles, and who seem to have been the warriors, or military part of the people, and who must have been very numerous, since all the whole army of Canute the Dane, when he invaded England after the death of king Swein, his father, is said to have been composed of men of this class, was brought in the course of the said trade as a negro slave from Africa aforesaid to Virginia aforesaid, to be there sold; and afterwards, to wit, on the 1st day of August in the year last ' omnes enim erant nobiles.' And the people of England were, probably, at this period distinguished into different classes of nearly the same kinds. At least, it is certain, that, before the Norman Conquest as well as after it, the great body of the cottagers and handycraftsmen (such as blacksmiths, millers, and cart-wrights) in country villages were slaves, or what our old law books called ' villeins regardant,' or belonging to the manor, or servi adscriptitii glebæ, and were alienated, as such, by name, together with their families, and all the goods and chattels they were possessed of, by their lords or owners," and he has transcribed from Ingulphus a grant made by Thorold in the year 1051 to the abbey of Crowland of " totum maDerium meum, &c. cum omnibus appendiciis suis; scilicet, Colgrinum præpositum meum, Item Hardingum fabrum, Item Lestanum carpentarium, (and eleven others) et totas sequelas suas, cum omnibus bonis et cataliis, quæ habent in dictâ villâ, et in campis ejus, et in mariscis, absque ullo de omnibus retinemento." As to Wales, Rowlands, in recounting the observations respecting the "true state and condition of the British government," and of " the ancient British tenures, and the former customs and usages thereof," which he had collected from those materials of information, which our own careless neglect had omitted, but, as a just reproach to our wretched oscitancy and remissness, the covetousness of our more watchful conquerors took care to record and preserve for us; that is the English monarchs, when they got themselves eised of the last remains of our British royalties, and found or made themselves intitled or interested by descent or conquest to the ancient revenues of our British princes," says (Mona Antiqua Restaurata, 410. 2d edition, London 1766; the former edition was published in Dublin, in 1723, the year of the anthor's death :) "We find, that the tenants of bond-lands and villanages, as they were of a quality below and inferior to freeholders, so they were obliged to greater drudgeries, and employed in more servile works, and were to be disposed of in many things, as their lords and princes pleased to use them. And of these some were free natives, and some pure natives. The free natives, I take to be those, who had some degree of freedom, who might go where they would, might buy and sell, and had many immunities; but the pure natives (as they were called) were the peculium of their proprietory lords or princes, to be disposed of as they listed. And I remember to have met, in sir William Grof fyth's book, with an abstract of a deed, where * Rowlands, speaking of the old returns and verdicts which had been made by jurors to the king's commissioners of enquiry into tenures, VOL. XX. aforesaid, the said James Sommersett, being and continuing such negro slave, was sold in Virginia aforesaid to one Charles Stenart, esq. who then was an inhabitant of Virginia aforethe natives of the township of Portbaethwy, many years after the time of the British princes, were sold as part of the estate of those lands they belonged to; and of which, and of others of that sort I have given elsewhere large instances. And I have by me a copy of injunc tion, issued out by Henry the seventh, king of England, commanding escheators, and all other ministerial officers, to see that the king's native tenants kept within their proper limits; and if any of them were found to stray and wander from their home, to drive them back, like beasts to their pinfolds, with the greatest severity." And in a book intitled Beauties of England 8vo, 1812, 1 have met with the following pasand Wales, vol. xvii, by the Rev. J. Evans, sage: "Among the boons bestowed upon the corporation of Beaumaris, so late even as the fourth year of Elizabeth's reign, the followmg grant appears: All and singular the king's lands, tenements, and hereditaments in Bodinew, and his villagers (cultivators) in the same town, if any be, with their offspring.' But this was probably no more than an exemplification of a grant, made long before, by way of confirmation. "The following is one, out of three documents, adduced by Mr. Rowlands. Edynfed Vychan ap Edynfed, alias dictus Eduyfed ap Arthelw oz Davydd ap Gruffyd et Howel ap Davydd ap Ryryd, alias dictus Howel ap Arthelw uz Davydd ap Gryffydd, Liberi tenentes D'ni Regis villæ de Rhandei Gadog, &c. dedimus et confirmavimus Willimo ap Gryffydd ap Gwilim armigero et libero tenenti de Porthamel, &c. septem nativos nostros; viz. Howel ap Davydd Dew, Matto ap Davydd Dew, Jevan ap Evan Ddu, Llewelyn ap Davydd Dew, Davydd ap Matto ap Davydd Dew, Howel ap Matto ap Davydd Dew, et &c. says (p. 120.) "For what light we have from these records, we ought to be much obliged to the generous care and industry of that very worthy and deservedly celebrated person, sir William Gruffydd of Penryhon, knight and chamberlain of North Wales; who preserved these records from perishing, by collecting so many of them as he could retrieve from moth and corruption; and then causing those scattered rolls and fragments which he could meet with, to be fairly written by one Jenkyn Gwyn, in two large books of parchment, for the information of posterity. One whereof is that book, kept always in the Chamberlain's office, caled by the name of the Extent of North Wales; and the other he transmitted into the Auditor's office at London, where it is preserved to this day." C said; and that the said James Sommersett thereupon then and there became, and was the negro slave and property of the said Charles Steuart, and hath not at any time since been Llewelyn ap Evan Coke, cum eorum sequelis tàm procreatistam procreandis ae omnibus bonis, catallis, &c. habend, &c. prædictos nativos nostros, &c. præfato Willimo Gruffyd ap Gwilim hæredibus et assignatis suis in perpetuum. Datum apud Rhandir Gadog, 20 die Junii, an. Henr. 6ti 27mo. [Manuscript Hist. of Anglesea.]" In a note to the Beauties, &c.' it is stated that" in the western parts of England, if some estates are sold or let, au usual condition is, to take all the apprentices upon them, male and female." This the writer denominates "an evident though laggering proof of persons being attached to the soil." 6 The whole of Mr. Burnett's sixteenth chapter (Treatise on the Criminal Law of Scotland) is a commentary, extending through seventy-one 4to pages, upon the Act' (already noticed) for preventing wrongous imprisonment, and against undue delays in trials' (chap. 6 of the eighth and ninth sessions of king William's parliament 1701). He says of it that it comprises (in some respects with greater security to the liberty of the subjects) the provisions of all the several statutes which the legislature of England has passed for the per sonal liberty of the subject, and that therefore it justly may be termed the Magna Charta of Scotland. And in the case of Andrew against Murdoch, the lord justice clerk, Hope (now, 1812, lord president) said "Our Act 1701 is greatly more favourable to the liberty of the subject in every respect than the Habeas Corpus Act of England," Of a law thus celebrated, the provisions will naturally excite in the mind of every lover of his country a warmth of interested curiosity. The enactments of this statute are numerous, extensive, and minute. The statute itself is therefore very long. I recollect not any account of it in Mr. Laing's History. Mr. Burnett exhibits a brief history of its origin, and analysis of its provisions; which I will substitute for the copiousness and particularity of the act itself. "The Convention of Estates of Scotland, in the year 1689, declared, among other things, that,exacting exorbitant bail, and imprisoning persons without expressing the reason there'of, and delaying to put them to trial, are contrary to the known laws, statutes, and freedom of the realm,' and the redress of this they claimed as their undoubted right and privilege; and farther, that no declarations, doings or proceedings, to the prejudice of the people, in any of the said premises, ought in any ways to be decisive hereafter in consequence 'or example.' These grievances, in a subsequent letter to the king (1689, chap. 27.) the manumitted, enfranchised, set free, or discharged; and that the same James Sommersett, so being the negro slave and property of him the said Charles Steuart, and the said estates prayed his majesty to redress by wholesome laws in his first parliament. "In the first parliament, accordingly, most of these grievances were redressed, and particularly, the exacting of exorbitant bail, imprisoning persons without expressing the cause, and delaying to put them to trial, by the well known statute 1701, cap. 6, which the people in this part of the united kingdom must view as one of the greatest benefits conferred on them declaratory only of their former rights; or as by the Revolution, whether it be held as a law introducing provisions in favour of the subject, which had not previously been either so well defined, or observed in practice. 66 The objects indeed of this statute are of the first importance to the security and happiness of every individual of the community; inasmuch as the injury of unjust and illegal confinement, while it is often the most difficult to guard against, is in its nature the most oppressive and the most likely to be resorted to by an arbitrary government. Some have thought that unjust attacks, even upon life or property, at the arbitrary will of the magistrate, are less dangerous to the commonwealth, than such as are made upon the personal liberty of the subject. Without accusation or trial to bereave a man of life, or by violence to confiscate his estate, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person by secretly hurrying to jail, where the sufferings of the party are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. (Blackst. Comm. book 1, chap. 1.) "The statute proceeds accordingly on the preamble of the previous declaration by the Claim of Right, and the interest which all his majesty's subjects have, that the liberty of 'their persons be duly secured;' and contains in its enactment almost every provision, which has at any period, or almost in any system of law, been deemed most conducive to the personal liberty of the subject; at the same time, it introduces regulations and exceptions, which, while they are the best calculated to ensure that object, render it nowise inconsistent with the safety of the public. "It sets out by providing against the first steps towards an illegal confinement, the apprehending of the persons without a regular information and a special warrant, and guards against any confinement, that is not necessary to ensure the attendance of the party on the day of trial. In the next place it declares what crimes shall be bailable, and directs the speediest mode of finding bail; and to prevent the possibility of any vague discretion being |