A Complete Collection of State Trials Vol. XX

Of this Case only a Statement of the Facts, and Mr. Hargrave's learned Argument were inserted in the former edition of this Work. I have here added the other Arguments, and the Judgment of the Court, from Lofft's Reports, in which is a Note of the Case under the name of Sommersett against Stewart. On the 3d of December 1771, affidavits were made by Thomas Walklin, Elizabeth Cade, and John Marlow, that James Sommersett, a negro, was confined in irons on board a ship

called the Ann and Mary, John Knowles commander, lying in the Thames, and bound for Jamaica; and lord Mansfield, on an application supported by these affidavits, allowed a writ of Habeas Corpus, directed to Mr. Knowles, and requiring him to return the body of Sommersett before his lordship, with the cause of detainer.

Mr. Knowles on the 9th of December produced the body of Sommersett before lord Mansfield, and returned for cause of detainer, that Sommersett was the negro slave of Charles Steuart, esq. who had delivered Sommersett

The very important matters which this" case involved, viz. first, The rights over the person of a negro resident here, claimed by another person as the owner of the negro; and, supposing such rights to exist, secondly, The extent of them; and thirdly, The means of inforcing them, were, I believe, never, except in this case, made the subject of a suit at law in England. But in Scotland two cases of this sort have occurred before the Court of

Session; 1, That of Sheddan against Sheddan, A. D. 1756; 2, That of Knight against Wedderburo, A. D. 1775—1778.

Of these two cases the following reports are printed from the Dictionary of Decisions,' tit. Slave,' vol. 33, pp. 14,545, et seq. :

“Robert Sheddan against a Negro.-July 4,

1757.

Joseph Knight, a Negro, against John Wed

derburn.-January 15, 1778.

"The commander of a vessel, in the African trade, having imported a cargo of negroes into Jamaica, sold Joseph Knight, one of them, as a slave, to Mr. Wedderburn. Knight was then a boy, seemingly about twelve or thirteen

years

of age.

"Some time after, Mr. Wedderburn came over to Scotland, and brought this negro along with him, as a personal servant.

"The negro continued to serve him for several years, without murmuring, and married in the country. But, afterwards, prompted to assert his freedom, he took the resolution of leaving Mr. Wedderburn's service, who, being informed of it, got him apprehended, on a warrant of the justices of peace. Knight, on his examination, acknowledged his purpose. The "A Negro, who had been bought in Vir-justices found the petitioner entitled to ginia, and brought to Britain to be taught a Knight's services, and that he must continue trade, and who had been baptized in Britain, as before.' having claimed his liberty, against his master Robert Sheddan, who had put him on board a ship, to carry him back to Virginia, the Lords appointed counsel for the negro, and ordered memorials, and afterwards a hearing in presence, upon the respective claims of liberty and servitude by the master and the negro.

"But, during the hearing in presence, the negro died; so the point was not determined." VOL. XX,

"Knight then applied to the sheriff of the county, (Perthshire), by petition, setting forth, That Mr. Wedderburn insisted on his continuing a personal servant with him,' and prayed the sheriff to find, That he cannot be continued in a state of slavery, or compelled to perpetual service; and to discharge Mr. Wedderburn from sending the petitioner ' abroad.'

into Mr. Knowles's custody, in order to carry him to Jamaica, and there sell him as a slave. Affidavits were also made by Mr. Steuart and two other gentlemen, to prove that Mr. Steuart had purchased Sommersett as a slave in Vir

"After some procedure in this process, the sheriff found, That the state of slavery is not ' recognized by the laws of this kingdom, and is 'inconsistent with the principles thereof; that 'the regulations in Jamaica, concerning slaves, do not extend to this kingdom; and repelled the defender's claim to a perpetual service.' Mr. Wedderburn having reclaimed, the sheriff found, That perpetual service, without wages, is slavery; and therefore adhered.' "The defender removed the cause into the court by advocation. The lord ordinary took it to report, upon informations. Being a question of general importance, the Court ordered a hearing in presence, and afterwards informations of new, upon which it was advised.

"Pleaded for the Master: That he had a right either to the perpetual service of the negro in this country, or to send him back to the plantations from which be was brought. His claim over the negro, to this extent, was argued on the following grounds:

"The productions of the colonies, ever since they were settled, have been cultivated by the means of negro slaves imported from the coast of Africa. The supplying the colonies with these slaves has become an extensive trade; without which, the valuable objects of commerce, now furnished by the plantations, could not be cultivated. British statutes have given sanction to this trade, and recognized the property of the master in such slaves; 10th W. 3, c. 26; 5th Geo. 2, c. 7; 23d Geo.

2, c. 3.

ginia, and had afterwards brought him into England, where he left his master's service; and that his refusing to return, was the occasion of his being carried on board Mr. Knowles's ship.

in all the ancient nations, and in all the modern European nations, for many ages. In some of them it still remains; and in none of them has it been abolished by positive enactments, declaring it unjust and illegal, but gone into disuse by degrees, in consequence of many different causes. Though, therefore, the municipal law of this country does not now_admit of this state of slavery in the persons of citizens, yet, where foreigners, in that state, are brought into the country, the right of their masters over them ought not to be annihilated.

"In this case, the master is not insisting for the exercise of any rigorous powers. He only demands, that he shall be intitled to the personal services of the negro, in this country, during life. His right to this extent, at least, is not immoral or unjust; nor is it even reprobated by the municipal law of this country. A person may bind himself to a service for life; Ersk. Inst. b. 1, t. 7, § 62.

“But, in the last place, if this is denied, the master must, at least, be permitted to compel the negro to return to the plantations, from whence he was brought; otherwise he is intirely forfeited of his right.

"Some cases from the English law-books were adduced to show, that, in England, the master's right of property in his negro remains after he is brought into that country; Butts contra Penny, 1677; Keble's Rep. p. 3, p. 785. Gilly contra Cleves; 5th William and Mary, lord Raymond, Rep. 5, p. 147; and the opinion of two very eminent lawyers, in the year 1729, sir Philip Yorke, then attor ney-general, and Mr. Talbot, solicitor-general, in these words: We are of opinion, that a 'slave, by coming from the West-Indies, either with or without his master, to Great Britain or Ireland, doth not become free; and that his master's property or right in him is

"The property which, in Jamaica, was established in the master over the negro, under these statutes, and the municipal law there, cannot be lost by a mere change of place. On principles of equity, rights acquired under the laws of foreign countries are supported and inforced by the courts of law here. A right of property will be sustained in every country'not thereby determined or varied; and bapwhere the subject of it may come. The status of persons attend them wherever they go; Huber, lib. 1, t. 3, c. 12.

'tism doth not bestow freedom on him, nor make any alteration in his temporal condition ' in these kingdoms. We are also of opinion, 'that the master may legally compel him to return to the plantations.'

"The law of the colonies is not to be considered as unjust, in authorizing this condition of slavery. The statutes which encourage the "Answered for the Negro: The only title on African trade show, that the legislature does which any right of dominion is claimed over not look on it in that light. The state of this African, is the institution of the municipal slavery is not contrary to the law of nations. law of Jamaica, which authorizes the slavery Writers upon that law have enumerated seve- of Africans brought into that island.. Under ral just and lawful origins of slavery; such as that law, this negro, a child when brought into contract, conquest in a just war, and punish-Jamaica, while he remained there, was subment of crimes. In cases where slavery is au- jected to the unjust dominion which it gives thorized by the laws of Jamaica, it must be pre- over these foreigners; but the municipal law sumed to have proceeded on a lawful origin. of the colonies has no authority in this country. The municipal law of no country will be pre- On grounds of equity, the Court, in some sumed unjust. cases, gives effect to the laws of other coun"A state of slavery has been universally re-tries; but the law of Jamaica, in this instance, ceived in the practice of nations. It took place will not be supported by the Court; because it

Lord Mansfield chusing to refer the matter to the determination of the court of King'sbench, Sommersett with sureties was bound in a recognizance for his appearance there on the second day of the next Hilary term; and his

lordship allowed till that day for settling the form of the return to the Habeas Corpus. Accordingly on that day Sommersett appeared in the court of King's-bench, and then the following return was read:

men of modern times have thought, that sugar and tobacco might be cultivated without the

is repugnant to the first principles of morality
and justice.
"Subordination, to a certain extent, is ne-slavery of negroes.
cessary; but there are certain bounds, beyond
which, if any institution, subjecting one indi-
vidual to another, should go, the injustice and
immorality of it cannot admit of a doubt.
Such is the institution of slavery, depriving
men of the most essential rights that attend
their existence, and which are of a nature that
admit not of any equivalent to be given for
them. The most express consent, given in a
voluntary contract, cannot authorize the assum-
ing of these rights, or bind the consenting party
to submit to the condition of a slave. A stipu-
lation of that kind affords intrinsic evidence of
an undue advantage taken, and is therefore
sufficient to void the contract.

"But, although it were justifiable to admit of a slavery proceeding on a title of contract, of conquest, or of punishment, the law of Jamaica would not be the less unjust. In subjecting the Africans to slavery, that law requires no title under any of these grounds. The circumstance, that the negroes are brought into Jamaica, is all that is requisite to fix on them indiscriminately the condition of slavery. It is, therefore, a slavery established on force and usurpation alone, which no writer on the law of nations has vindicated as a justifiable origin of slavery.

"If the law of Jamaica had made any distinction, or required any title to the slavery of an African, this negro would never have been reduced by it to that state. Being a child when he was brought into Jamaica, he could enter into no contract, commit no crime, and conquest cannot give a right to kill or enslave children.

"The means by which those who carried this child from his own country got him into their hands, cannot be known; because the law of Jamaica makes no inquiry into that circumstance. But, whether he was ensnared, or bought from his parents, the iniquity is the same. That a state of slavery has been admitted of in many nations, does not render it less unjust. Child-murder, and other crimes of a deep dye, have been authorised by the laws of different states. Tyranny, and all sorts of oppression, might be vindicated on the same grounds.-Neither can the advantages procured to this country, by the slavery of the negroes, be hearkened to, as any argument in this question, as to the justice of it. Oppression and iniquity are not palliated by the gain and advantage acquired to the authors of them. But the expediency of the institution, even for the subjects of Great Britain, is much doubted of by those who are best acquainted with the state of the colonies; and some enlightened

"The dominion, therefore, given by the law of Jamaica over the pursuer, a foreigner there, being unjust, can receive no aid from the laws of this country. The modification proposed of this claim of slavery, makes no difference on the merits of the question. It is plain, that, to give the defender any right over the pursuer, the positive law of Jamaica must always be resorted to; consequently, the question recurs, Whether that law ought to be enforced beyond its territory? But a service for life, without wages, is, in fact, slavery. The law of Scotland would not support a voluntary contract in these terms; and, even where wages are stipulated, such a contract has been voided by the Court; Allan and Mearns contra Skene and Burnet, No. 5, p. 9454, voce Pactum Illicitum.

"The answer was given to the other claim, of sending the negro out of this country, without his consent, that it supposes the dominion given over the pursuer by the law of Jamaica to be just. The negro is likewise protected against this by the statute 1701, c. 6, which expressly prohibits the carrying any persons out of the kingdom without their consent. The words are general, and apply to ali persons within the realm.

"In support of this argument for the negro, authorities of French writers were adduced, to show, that formerly, by the laws of France, negroes brought into that country from the plantations became free. This was their law, until lately, that, by special edicts, some alterations were made upon it; Denisart, tom. 3, v. Negro. On the law of England, several cases were mentioned, in which different judges had expressed opinions, that a negro coming into England is free there; 1 Salk. 666, Smith contra Brown and Cooper; Shanley contra Nalvey, in Chancery 1762; Har grave's Arg. p. 58.

"But the late case of Sommersett, the negro, decided in the King's-bench, in the year 1772, was chiefly relied on, and said to be in point; at least upon this question, Whether the negro could be sent out of England?

"The Court were of opinion, that the dominion assumed over this negro, under the law of Jamaica, being unjust, could not be supported in this country to any extent: that, therefore, the defender had no right to the negro's service for any space of time, nor to send him out of the country against his consent: that the negro was likewise protected under the act 1701, c. 6. [The Act for preventing wrongous imprisonment, and against undue delays in Trials,' more particularly

"I, John Knowles, commander of the vessel called the Ann and Mary in the writ hereunto annexed, do most humbly certify and return to our present most serene sovereign the king; that mentioned below] from being sent out of the country against his consent.-The judgments of the sheriff were approved of, and the Court • remitted the cause simpliciter."

I have been favoured with the use of six 'Memorials or Informations,' which in the course of these two litigations were delivered into the Court of Session. Five of them appear to have been prepared by men of very high eminence in their profession, one for Sheddan the negro by sir David Dalrymple, afterwards a judge with the title of lord Hailes; two for Knight the negro, by Mr. M'Laurin, afterwards lord Dreghorn, and Mr. Maconochie, now lord Meadowbank, and two for Wedderburn (Knight's master), by Mr. Ferguson, afterwards lord Pitfour, and Mr. Cullen, afterwards lord Cullen, respectively: they display a copiousness and variety of curious learning, ingenious reasoning, and acute argumentation, intimately connected with the case now before us.

at the time herein after-mentioned of bringing the said JamesSommersett from Africa, and long before, there were, and from thence hitherto there have been, and still are great numbers of being seized on violently by a third person, and sold to the claimant. It has, however, been urged, that coalliers and salters are living proofs of the former prevalence of villenage: it is, therefore, not unnecessary to bestow a few observations on their situation; the use of pitcoal is of so late invention that villenage must, at any rate, have disappeared in Scotland long before the working of coal could have become a profession. Purchas (in vol. 3, p. 88, of his collection) giving an account of Marco Paolo's travels, has the following curious passage extracted from them: Throughout the whole province of Katai (China), certain black stones are digged out of the mountains, which, put into the fire, burn like wood, and being kindled, preserve fire a long time: as if they be kindled in the evening, they keep quick fire all the night; and many use those stones, because, that though they have store of wood yet there is such frequent use of 'stones and leathes thrice every week that the 'wood would not serve.' The same observa

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With respect to Memorials' or Information is transcribed into the Histoire Générale de tions,' in causes depending in the Court of Session, and to the general course of proceeding in that court, see the Edinburgh Review for January 1807. For the alterations which in the year 1808 were made in the constitution of that court, see stat. 48 G. 3. c. 151.

Mr. Barrington, in his Observations on stat. 1 Rich. 2, (note [y] in the third edition) mentioned that "many of the labourers in the salt-works and collieries in Scotland still continue glebæ adscriptitii' and cannot be hired without the proprietor's consent." And as to this he referred to a case in the Dictionary of Decisions, vol. 1, p. 312. I know not what case that was. In Morison's Dictionary of Decisions there are under title Coalier twelve cases, in all of which the servile condition of the class is recognised.

In the Memorials which were presented in the case of Knight . Wedderburn, the condition of the coalliers and salters of Scotland was considered. I will here insert what was said of it by lord Meadowbank and lord Pitfour. "The defender," observed the first of those learned persons, "has mentioned the situation of coalliers and salters as an evidence, that the law of Scotland is not repugnant to slavery. It has been already shown, that although villenage still existed, although this bigh court would even now record an acknowledgment of villenage, and although other kinds of slavery were adopted by the laws of this country, yet that the common law could not be understood to favour the defender's claim. As long as the common law acknowledges the law of nature to be its great principal and rule, so long must it reject a claim to a right of property in a man, or in his labour and industry, founded in his being born of a captive or a criminal, or in his

Voyages, tom. 9, p. 356. It was one of the circumstances, which, at the publication of Paolo's travels, was considered as a proof that they were fabulous. There is a passage in Eneas Sylvius' (afterwards Pius 2 ) account of Europe, which shows more directly, that the use of pit-coal must have been very rare and very inconsiderable in his time even in Scotland. Treating of Scotland, he observes, that he was here (as a legate) in the time of Jacobus quadratus, and enquired about a miraculous tree, which had been said to grow in Scotland: He adds, De quâ re cùm audivimus investigaremus [so in orig.] didicimus miracula 'semper remotiùs fugere, famosámque arborem 'non in Scotiâ, sed apud Orcades inveniri:

Illud tamen in Scotiâ miraculum represen'tatum est; nam pauperes penè nudos ad 'templa mendicantes acceptis lapidibus eleemosyne gratiâ datis lætos abiisse conspeximus: id genus lapidis, sive sulphureâ sive aliâ 'pingui materiâ, pro ligno, quo regio nuda est, comburitur.' It is plain, from this account, that coals must have been very rare in Scotland." It otherwise would have been quite absurd to take notice of them only as used by beggars. Besides, he observes, that they were only used where the country was barren of wood; and it is well known, that Scotland was, during the reigns of the Jameses, very much covered with it; so there could be very little occasion for coals. On the other hand, as there are regular records extant, from the days of James 1, it is impossible that villenage could then have existed, without sufficient evidence concerning it appearing in the acts of parliament, charters, transfers of property, and various deeds among individuals, which are handed

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