here by his master's private authority. Habeas Corpus acknowledges a right to seize persons by force employed to serve abroad. A right of compulsion there must be, or the master will be under the ridiculous necessity of neglecting his proper business, by staying here to have their service, or must be quite deprived of those slaves he has been obliged to bring over. The case, as to service for life, was not allowed, merely for want of a deed to pass it. The Court approved Mr. Alleyne's opinion of the distinction, how far municipal laws were to be regarded: instanced the right of marriage; which, properly solemnized, was in all places the same, but the regulations of power over children from it, and other circumstances, very various; and advised, if the merchants thought it so necessary, to apply to parliament, who could make laws. Adjourned till that day se'nnight. question: less than this I have no reason to expect; more, I neither demand nor wish to have allowed. Many alarming apprehensions have been entertained of the consequence of the decision, either way. About 14,000 slaves, from the most exact intelligence I am able to procure, are at present here; and some little time past, 166,914 in Jainaica; there are, besides, a number of wild negroes in the woods. The computed value of a negro in those parts 50l. a head. In the other islands I cannot state with the same accuracy, but on the whole they are about as many. The means of conveyance, I am told, are manitold; every family almost brings over a great number; and will, be the decision on which side it may. Most negroes who have money (and that description I believe will include nearly all) make interest with the common sailors to be carried hither. There are negroes not falling under the proper denomination of any yet mentioned, descenMr. Dunning. It is incumbent on me to jus- dants of the original slaves, the aborigines, if t tify captain Knowles's detainer of the negro; may call them so; these have gradually acthis will be effected, by proving a right in Mr. quired a natural attachment to their country Steuart; even a supposed one: for till that and situation; in all insurrections they side matter was determined, it were somewhat un- with their masters: otherwise the vast disproaccountable that a negro should depart his portion of the negroes to the whites, (not less service, and put the means out of his power of probably than that of 100 to one) would have triyng that right to effect, by a flight out of the been fatal in its consequences. There are very kingdom. I will explain what appears to me strong and particular grounds of apprehenthe foundation of Mr. Steuart's claim. Before sion, if the relation in which they stand to the writ of Habeas Corpus issued in the present their masters is utterly to be dissolved on the case, there was, and there still is, a great num- instant of their coming into England. Slavery, ber of slaves in Africa, (from whence the Ame- say the gentlemen, is au odious thing; the rican plantations are supplied) who are saleable, name is: and the reality; if it were as one has and in fact sold. Under all these descriptions defined, and the rest supposed it. If it were is James Sommersett. Mr. Steuart brought him necessary to the idea and the existence of over to England; purposing to return to Ja- James Sommersett, that his master, even here, maica, the negro chose to depart the service, might kill, nay, might eat him, might sell living and was stopt and detained by captain Knowles, or dead, might make him and his descendants until his master should set sail and take him property alienable, and thus transmissible to away to be sold in Jamaica. The gentlemen posterity; this, how high soever my ideas may on the other side, to whom I impute no blame, be of the duty of my profession, is what I but on the other hand much commendation, should decline pretty much to defend or ashave advanced many ingenious propositions; sert, for any purpose, seriously; I should only part of which are undeniably true, and part (as speak of it to testify my contempt and abis usual in compositions of ingenuity) very dis- horrence. But this is what at present I am putable. It is my misfortune to address an not at all concerned in ; unless captain Knowles, audience, the greater part of which, I fear, or Mr. Steuart, have killed or eat him. are prejudiced the other way. But wishes, Freedom has been asserted as a natural right, am well convinced, will never enter into your and therefore unalienable and unrestrainable; lordships' minds, to influence the determination there is perhaps no branch of this right, but in of the point: this cause must be what in fact some at all times, and in all places at different and law it is; its fate, I trust, therefore, de- times, has been restrained: nor could society pends on fixt invariable rules, resulting by law otherwise be conceived to exist. For the great from the nature of the case. For myself, I benefit of the public and individuals, natural would not be understood to intimate a wish in liberty, which consists in doing what one likes, favour of slavery, by any means; nor on the is altered to the doing what one ought. The other side to be supposed the maintainer of an gentlemen who have spoke with so much zeal, opinion contrary to my own judgment, I am have supposed different ways by which slavery bound by duty to maintain those arguments commences; but have omitted one, and rightly; which are most useful to captain Knowles, as for it would have given a more favourable idea far as is consistent with truth; and if his con- of the nature of that power against which they duct has been agreeable to the laws throughout, combat. We are apt (and great authorities I am under a farther indispensible duty to sup- support this way of speaking) to call those na❤ port it. I ask no other attention than maytions universally, whose internal police we are naturally result from the importance of the ignorant of, barbarians; (thus the Greeks, pars ticularly, stiled many nations, whose customs, are most closely connected: municipal laws, generally considered, were far more justifiable strictly, are those confined to a particular place; and commendable than their own :) unfortu-political, are those in which the municipal laws nately, from calling them barbarians, we are of many states may and do concur. The rela apt to think them so, and draw conclusions ac- tion of husband and wife, I think myself warcordingly. There are slaves in Africa by cap-ranted in questioning, as a uatural relation: tivity in war, but the number far from great; does it subsist for life; or to answer the natural the country is divided into many small, some purposes which may reasonably be supposed great territories, who do, in their wars with one often to terminate sooner? Yet this is one of another, use this custom. There are of these those relations which follow a man every people, men who have a sense of the right and where. If only natural relations had that provalue of freedom; but who imagine that of-perty, the effect would be very limited indeed. fences against society are punishable justly by In fact, the municipal laws are principally emthe severe law of servitude. For crimes against ployed in determining the manner by which property, a considerable addition is made to the relations are created; and which manner varies number of slaves. They have a process by in various countries, and in the same country which the quantity of the debt is ascertained; at different periods; the political relation itself and if all the property of the debtor in goods continuing usually unchanged by the change and chattels is insufficient, he who has thus of place. There is but one form at present dissipated all he has besides, is deemed pro- with us, by which the relation of husband and perty himself; the proper officer (sheriff we wife can be constituted; there was a time when may call him) seizes the insolvent, and dis-otherwise: I need not say other nations have poses of him as a slave. We don't contend their own modes, for that and other ends of under which of these the unfortunate man in society. Contract is not the only means, on question is; but his condition was that of ser- the other hand, of producing the relation of vitude in Africa; the law of the land of that master and servant; the magistrates are emcountry disposed of him as property, with all powered to oblige persons under certain cirthe consequences of transmission and aliena- cumstances to serve. Let me take notice, neition; the statutes of the British legislature ther the air of England is too pure for a slave confirm this condition; and thus he was a slave to breathe in, nor have the laws of England both in law and fact. I do not aim at proving rejected servitude. Villenage in this country these points; not because they want evidence, is said to be worn out; the propriety of the but because they have not been controverted, to expression strikes me a little. Are the laws my recollection, and are, I think, incapable of not existing by which it was created? A matdenial. Mr. Steuart, with this right, crossed the ter of more curiosity than use, it is, to enquire Atlantic, and was not to have the satisfaction of when that set of people ceased. The statute of discovering, till after his arrival in this country, tenures did not however abolish villenage in that all relation between him and the negro, as gross; it left persons of that condition in the master and servant, was to be matter of con- same state as before; if their descendants are troversy, and of long legal disquisition. A few all dead, the gentlemen are right to say the words may be proper, concerning the Russian subject of those laws is gone, but not the law; slave, and the proceedings of the House of if the subject revives, the law will lead the Commons on that case. It is not absurd in subject. If the statute of Charles the 2d, ever the idea, as quoted, nor improbable as matter be repealed, the law of villenage revives in its of fact; the expression has a kind of absurdity. full force. If my learned brother the serjeant, I think, without any prejudice to Mr. Steuart, or the other gentlemen who argued on the or the merits of this cause, I may admit the supposed subject of freedom, will go through utmost possible to be desired, as far as the an operation my reading assures me will be case of that slave goes. The master and slave sufficient for that purpose, I shall claim them were both, (or should have been at least) on as property. I won't, I assure them, make a their coming here, new creatures. Russian sla- rigorous use of my power; I will neither sell very, and even the subordination amongst them-them, eat them, nor part with them. It would selves, in the degree they use it, is not here to be tolerated. Mr. Alleyne justly observes, the municipal regulations of one country are not binding on another; but does the relation cease where the modes of creating it, the degrees in which it subsists, vary? I have not heard, nor, I fancy, is there any intention to affirm, the relation of master and servant ceases here? I understand the municipal relations differ in different colonies, according to humanity, and otherwise. A distinction was endeavoured to be established between natural and municipal relations; but the natural relations are not those only which attend the person of the man, political do so too; with which the municipal be a great surprize, and some inconvenience, tion. The gentlemen have collected more reading than I have leisure to collect, or industry (I must own) if I had leisure: very laudable pains have been taken, and very ingenious, in collecting the sentiments of other countries, which I shall not much regard, as affecting the point or jurisdiction of this court. In Holland, so far from perfect freedom, (1 speak from knowledge) there are, who without being, conscious of contract, have for offences perpetual labour imposed, and death the condition annexed to non-performance. Either all the different ranks must be allowed natural, which is not readily conceived, or there are political ones, which cease not on change of soil. But in what manner is the negro to be treated? How far lawful to detain him? My footman, according to my agreement, is obliged to attend me from this city, or he is not; if no condition, that he shall not be obliged, from hence he is obliged, and no injury done. as a consequence of a previous right in Mr. Steuart, which our institutions, not dissolving, confirm. I don't insist on all the consequences of villenage; enough is established for our cause, by supporting the continuance of the service. Much has been endeavoured, to raise a distinction, as to the lawfulness of the negro's commencing slave, from the difficulty or impossibility of discovery by what means, under what authority, he became such. This, I apprehend, if a curious search were made, not utterly inexplicable; nor the legality of his original servitude difficult to be proved. But to what end? Our legislature, where it finds a relation existing, supports it in all suita. ble consequences, without using to enquire how it commenced. A man enlists for no specified time; the contract in construction of law, is for a year: the legislature, when once the man is enlisted, interposes annually to continue him in the service, as long as the A servant of a sheriff, by the command of public has need of him. In times of public his master, laid hand gently on another ser- danger he is forced into the service; the laws vant of his master, and brought him before his from thence forward find him a soldier, make master, who himself compelled the servant to him liable to all the burden, confer all the his duty; an action of assault and battery, rights (if any rights there are of that state) and false imprisonment, was brought; and the and enforce all penalties of neglect of any duty principal question was, on demurrer, whether in that profession, as much and as absolutely, the master could command the servant, though as if by contract, he had so disposed of himhe might have justified his taking of the ser-self. If the Court see a necessity of entering vant by his own bands? The convenience of the public is far better provided for, by this private authority of the master, than if the lawfulness of the command were liable to be litigated every time a servant thought fit to be negligent or troublesome. Is there a doubt, but a negro might interpose in the defence of a master, or a master in defence of a negro? If to all purposes of advantage, mutuality requires the rule to extend to those of disadvantage. It is said, as not formed by contract, no restraint can be placed by contract. Whichever way it was formed, the consequences, good or ill, follow from the relation, not the manner of producing it. I may observe, there is an establishment, by which magistrates compel idle or dissolute persons, of various ranks and denominations, to serve. In the case of apprentices bound out by the parish, neither the trade is left to the choice of those who are to serve, nor the consent of parties necessary; no contract therefore is made in the former instance, none in the latter; the duty remains the same. The case of contract for life quoted from the yearbooks, was recognized as valid; the solemnity only of an instrument judged requisite. Your lordships, (this variety of service, with divers other sorts, existing by law here,) have the option of classing him amongst those servants which he, most resembles in condition: therefore, (it seems to me) are by law authorised to enforce a service for life in the slave, that being a part of bis situation before his coming | hither; which, as not incompatible, but agreeing with our laws, may justly subsist here: I think, I might say, must necessarily subsist, into the large field of argument, as to right of the unfortunate man, and service appears to them deducible from a discussion of that nature to him, I neither doubt they will, nor wish they should not. As to the purpose of Mr. Steuart and captain Knowles, my argument does not require trover should lie, as for recovering of property, nor trespass: a form of action there is, the writ Per Quod Servitium Amisit, for loss of service, which the Court would have recognized; if they allowed the means of suing a right, they allowed the right. The opinion cited, to prove the negroes free on coming hither, only declares them not saleable; does not take away their service. I would say, before I conclude, not for the sake of the court, of the audience; the matter now in question, interests. the zeal for freedom of no person, if truly considered; it being only, whether I must apply to a court of justice, (in a case, where if the servant was an Englishman I might use my private authority to enforce the performance of the service, according to its nature,) or may, without force or outrage, take my servant myself, or by another.. I hope, therefore, I shall not suffer in the opinion of those whose honest passions are fired at the name of slavery. I hope I have not transgressed my duty to humanity; nor doubt I your lordship's discharge of yours to justice. Davy, Serj-My learned friend has thought proper to consider the question in the beginning of his speech, as of great importance: it is indeed so; but not for those reasons prin◄ cipally assigned by him. I apprehend, my lord, the honour of England, the honour of the laws of every Englishman, here or abroad, which as a subject he belonged at the time is now concerned. He observes, the number of his death." All relations governed by mus is 14,000 or 15,000; if so, high time to put nicipal laws, must be so far dependant on an end to the practice; more especially, since them, that if the parties change their country they must be sent back as slaves, though ser- the municipal laws give way, if contradictory vants here. The increase of such inhabitants, to the political regulations of that other country. not interested in the prosperity of a country, [See the cases cited in Fabrigas v. Mostyn, inf.] is very pernicious; in an island, which can, as In the case of master and slave, being no such, not extend its limits, nor consequently moral obligation, but founded on principles, maintain more than a certain number of inha- and supported by practice, utterly foreign to bitants, dangerous in excess. Money from fo- the laws and customs of this country, the law reign trade (or any other means) is not the cannot recognize such relation. The argu wealth of a nation; nor conduces any thing to ments founded on municipal regulations, consupport it, any farther than the produce of the sidered in their proper nature, have been treated earth will answer the demand of necessaries. so fully, so learnedly, and ably, as scarce to In that case money enriches the inhabitants, leave any room for observations on that subas being the common representative of those ject: any thing I could offer to enforce, would necessaries; but this representation is merely rather appear to weaken the proposition, com imaginary and useless, if the encrease of peo-pared with the strength and propriety with ple exceeds the annual stock of provisions re- which that subject has already been explained quisite for their subsistence. Thus, foreign and urged. I am not concerned to dispute, superfluous inhabitants augmenting perpetu- the negro may contract to serve; nor deny ally, are ill to be allowed; a nation of enemies the relation between them, while be continues in the heart of a state, still worse. Mr. Dun- under his original proprietor's roof and pró ning availed himself of a wrong interpretation tection. It is remarkable, in all Dyer, (for I of the word natural:' it was not used in the have caused a search to be made as far as the sense in which he thought fit to understand 4th of Henry the 8th,) there is not one instance that expression; it was used as moral, which of a man's being held a villein who denied no laws can supersede. All contracts, I do himself to be one; nor can I find a confession of not venture to assert, are of a moral nature; villenage in those times. [Lord Mansfield ;— but I know not any law to confirm an immoral The last confession of villenage extant, is in the contract, and execute it. The contract of 19th of Henry the 6th.] If the Court would marriage is a moral contract, established for acknowledge the relation of master and sermoral purposes, enforcing moral obligations; vant, it certainly would not allow the most exthe right of taking property by descent, the ceptionable part of slavery; that of being legitimacy of children; (who in France are obliged to remove, at the will of the master, considered legitimate, though born before the from the protection of this land of liberty, to a marriage, in England not): these, and many country where there are no laws; or hard laws other consequences, flow from the marriage to insult him. It will not permit slavery susproperly solemnized; are governed by the mu- pended for a while, suspended during the plea. nicipal laws of that particular state, under sure of the master. The instance of master whose institutions the contracting and disposing and servant commencing without contract; and parties live as subjects; and by whose esta- that of apprentices against the will of the parblished forms they submit the relation to be re- ties, (the latter found in its consequences exgulated, so far as its consequences, not con- ceedingly pernicious ;) both these are provided cerning the moral obligation, are interested. by special statutes of our own municipal law. In the case of Thorn and Watkins, in which If made in France, or any where but here, your lordship was counsel, determined before they would not have been binding here. To lord Hardwicke-A man died in England, punish not even a criminal for offences against with effects in Scotland; having a brother of the laws of another country; to set free a the whole, and a sister of the half blood: the galley-slave, who is a slave by his crime; and latter, by the laws of Scotland, could not take. make a slave of a negro, who is one, by his The brother applies for administration to take complexion; is a cruelty and absurdity that I the whole estate, real and personal, into his trust will never take place here: such as, if own hands, for his own use; the sister files a promulged, would make England a disgrace to bill in Chancery. The then Mr. Attorney-Ge- all the nations under heaven: for the reducing neral puts in answer for the defendant; and af. acman, guiltless of any offence against the firms, the estate, as being in Scotland, and de-laws, to the condition of slavery, the worst and scending from a Scotchman, should be governed by that law. Lord Hardwicke overruled the objection against the sister's taking; declared there was no pretence for it; and spoke to this effect, and nearly in the following words-"Suppose a foreigner has effects in our stocks, and dies abroad; they must be distributed according to the laws, not of the place where his effects were, but of that to most abject state. Mr. Dunning has mentioned, what he is pleased to term philosophical and moral grounds, I think, or something to that effect, of slavery; and would not by any means have us think disrespectfully of those nations, whom we mistakenly call barbarians, merely for carrying on that trade: for my part, we may be warranted, I believe, in affirming the morality or propriety of the practice does not enter their heads; they make slaves of whom they think fit. For the air of England; I think, however, it has been gradually purifying ever since the reign of Elizabeth. Mr. Dunning seems to have discovered so much, as he finds it changes a slave into a servant; though unbappily he does not think it of efficacy enough to prevent that pestilent disease reviving, the instant the poor man is obliged to quit (voluntarily quits, and legally it seems we ought to say,) this happy country. However, it has been asserted, and is now repeated by me, this air is too pure for a slave to breathe in: I trust, I shall not quit this court without certain conviction of the truth of that assertion. Trinity Term, June 22, 1772. 700,000l. sterling. How would the law stand with respect to their settlement; their wages? How many actions for any slight coercion by the master? We cannot in any of these points direct the law; the law must rule us. In these particulars, it may be matter of weighty consideration, what provisions are made or set by law. Mr. Steuart may end the question, by discharging or giving freedom to the negro. I did think at first to put the matter to a more solemn way of argument: but if my brothers agree, there seems no occasion. I do not imagine, after the point has been discussed on both sides so extremely well, any new light could be thrown on the subject. If the parties chuse to refer it to the Common Pleas, they can give Lord Mansfield.-The question is, if the themselves that satisfaction whenever they ●wner had a right to detain the slave, for the think fit. An application to parliament, if the sending of him over to be sold in Jamaica. merchants think the question of great com. In five or six cases of this nature, 1 have known | mercial concern, is the best, and perhaps the it to be accommodated by agreement between only method of settling the point for the future. the parties: on its first coming before me, I The Court is greatly obliged to the gentlemen strongly recommended it here. But if the parties of the bar who have spoke on the subject; and will have it decided, we must give our opinion. by whose care and abilities so much bas been Compassion will not, on the one hand, nor in-effected, that the rule of decision will be reconvenience on the other, be to decide; but the duced to a very easy compass. I cannot Jaw: in which the difficulty will be principally omit to express particular happiness in seeing from the inconvenience on both sides. Con- young men, just called to the bar, have been tract for sale of a slave is good here; the sale able so much to profit by their reading. I is a matter to which the law properly and rea- think it right the matter should stand over; dily attaches, and will maintain the price acand if we are called on for a decision, proper cording to the agreement. But here the per- notice shall be given. son of the slave himself is immediately the object of enquiry; which makes a very material difference. The now question is, Whether any dominion, authority or coercion can be exercised in this country, on a slave according to the American laws? The difficulty of adopting the relation, without adopting it in all its consequences, is indeed extreme; and yet, many of those consequences are absolutely contrary to the municipal law of England. We have no authority to regulate the conditions in which law shall operate. On the other hand, should we think the coercive power cannot be exercised: it is now about 50 years since the opinion given by two of the greatest men of their own or any times, (since which no contract has been brought to trial, between the masters and slaves;) the service performed by the slaves without wages, is a clear indication they did not think themselves free by coming hither. The setting 14,000 or 15,000 men at once loose by a solemn opinion, is very disagreeable in the effects it threatens. There is a case in Hobart, (Coventry and Woodfall,) where a man had contracted to go as a mariner: but the now case will not come within that decision. Mr. Steuart advances no claims on contract; he rests his whole demand on a right to the negro as slave, and mentions the purpose of detainure to be the sending of him over to be sold in Jamaica. If the parties will have judgment, fiat justitia, ruat cœlum;' let justice be done whatever be the consequence. 501. a-head may not be a high price; then a loss follows to the proprietors of above Lord Mansfield.-On the part of Sommersett, the case which we gave notice should be decided this day, the Court now proceeds to give its opinion. I shall recite the return to the writ of Habeas Corpus, as the ground of our determination; omitting only words of form. The captain of the ship on board of which the negro was taken, makes his return to the writ in terms signifying that there have been, and still are, slaves to a great number in Africa; and that the trade in them is authorized by the laws and opinions of Virginia and Jamaica; that they are goods and chattels; and, as such, saleable and sold. That James Sommersett is a negro of Africa, and long before the return of the king's writ was brought to be sold, and was sold to Charles Steuart, esq. then in Jamaica, and has not been manumitted since; that Mr. Steuart, having occasion to transact business, came over hither, with an intention to return; and brought Sommersett to attend and abide with him, and to carry him back as soon as the business should be transacted. That such intention has been, and still continues; and that the negro did remain till the time of his departure in the service of his master Mr. Steuart, and quitted it without his consent; and thereupon, before the return of the king's writ, the said Charles Steuart did commit the slave on board the Anne and Mary, to safe custody, to be kept till he should set sail, and then to be taken with him to Jamaica, and there sold as a slave. And this is the cause why he, captain Knowles, |