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here by his master's private authority. Habeas , question : less than this I have no reason to Corpus acknowledges a right to seize persons expect; more, I neither demand vor wish to by force eroployed to serve abroad. A right of have allowed. Many 'alarming apprehensions compulsion ihere must be, or the master will have been entertained of the consequence of the be under the ridiculous pecessity of neglecting decision, either way. About 14,000 slaves, his proper business, by staying here to have from the most exact intelligence I am able to their service, or must be quite deprived of those procure, are at present bere; and some little slaves be bas been obliged to bring over. The time past, 166,914 in Jainaica; there are, case, as to service for life, was not allowed, besides, a number of wild negroes in the woods. merely for want of a deed to pass it.
The computed value of a vegro in those parts The Court approved Mr. Alleyne's opinion of 30l. a head. Io the other islands I cannot the distinction, how far municipal laws were to state with the same accuracy, but on the whole be regarded : instanced the right of marriage; they are about as many. The means of conwhich, properly solemnized, was in all places veyance, I am told, are manifold ; every family the same, but the regulations of power over almost brings over a great number; and will, childreu froin it, and other circumstances, very be the decision on which side it may. Most various; and advised, if the merchants thought negroes who have money (and that description it so necessary, to apply to parliament, who I believe will include nearly all) make interest could make laws.
with the cominon sailors to be carried bůher. Adjourned till that day se'nnight.
There are negroes not falling under the proper
denomination of any yet mentionel, descen. Mr. Dunning. It is incumbent on me to jas- dants of the original slaves, the aborigines, if I 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 Sleuart; 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 wbites, (not less service, and put the means out of his power of probably than that of 100 to one) would have triyng ihat 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 grouods 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 Eugland. Slavery, ber of slaves in Africa, (from whence the Aine- say the gentlemen, is an odious thing; the ricap plantations are supplied) who are saleable, name is: and the reality ; if it were as one bas and in fact sold. Under all these descriptions defined, and the rest supposed it. If it were is James Sommersett. Mr. Sleuart 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 bim, might sell living and was stopt and detained by captain Knowles, or dead, might make bim and bis descendants until his master should set sail 'aod take bim property alienable, and thus transmissible to away to be sold in Jamaica. The gentlemen posterity; this, how high soever my
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- lrrence. But this is what at present I am putable. It is my misfortune to address an not at all concerned in ; uuless captain Knowles, audience, the greater part of which, I fear, or Mr. Steuart, bave killed or eat him. are prejudiced the other way. But wishes, i Freedom has been asserted as a natural right, am well convinced, will never enter into your and therefore uvalienable 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, iberefore, de times, bas been restrained : por could society pends on fixt invariable rules, resulting by law oth be conceived to exist. For the great from the pature 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 bave supposed different ways by wbicb slavery bound by duty to maintain those arguments commences; but bave omitted one, and rigbıly; 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 agaiost 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 naport it. I ask no other attention than may tions 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, 1 tbink myself warcordingly. There are slaves in Africa by cap- ranted in questioning, as a vatural relation : tivity in war, but the pamber 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 apother, use this custom. There are of these those relations which follow a man every people, men who have a sense of the right and wbere. 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 bave 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 tbe 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 be has besides, is deemed pro- with us, by which the relation of husband and perty bimself'; the proper officer (sheriff we wife can be constituted; there was a time when may call him) seizes tbe 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 bim as property, with all powered to oblige persoos under certain cir. the consequences of transmission and aliena- cumstances to serve. Let me take notice, nei. tion ; tbe 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 ibe laws my recollection, and are, I think, incapable of poi existing by which it was created ? A mat. denial. 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 villepage in that all relation between bim and the negro, as gross; it left persons of that condition in the master and servavt, 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 rigbt 10 say, the words may be proper, concerning the Russian subject of those laws is gone, but not the law; slave, and ibe 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 tbat slave goes. The master and slave sufficient for that purpose, I shall claim them were both, (or should have been at least) ou as property. I wou't, 1 assure them, make a their coming bere, new creatures. Russian sla- rigorous use of my power; I will neither sell very, and even the subordination amongst them- them, eat them, por part with them. It would selves, in the degree they use it, is not here to be a great surprize, and some inconvenience, be tolerated. Mr. Alleybe justly observes, the if a foreigner bringing over a servant, as soon municipal regulations of one country are not as he got bither, must take care of bis carriage, binding on another ; but does the relation cease his borse, and himself in wbatever metbod he wbere ibe modes of creating it, the degrees in might have the luck to invent. He must which it subsists, vary? I have not heard, nor, find bis way to London on foot. He tells his I fancy, is there any intention to affirm,
the servant, Do thie ; the servant replies, Before I relation of master and servant ceases here? I do it, I think fit to inform you, Sir, the first understand the municipal relations differ in dit step on this happy land sets all men on a perferent colonies, according to humanity, and feci level ; you are just as much obliged to otherwise. A distinction was endeavoured to obey my commands. Thus, peither superior, be established between natural and municipal or inferior, both go without their dipper. We relations; but the natural relations are not should find singular comfort, on entering the those only which attend the person of the man, limits of a foreign country, to be thus at once political do so too ; with which the municipal devested of all attendance and all accommodar
tion. The gentlemen have collected more as a consequence of a previous right in Mr. reading than I have leisure to collect, or ia- Steuart, which our institutions, not dissolving, dustry (I must own) if I had leisure: very confirm. I don't losist on all the consequences laudable pains have been taken, and very inge- of villenage; enough is established for our nious, in collecting the sentiments of other cause, by supporting the continuance of the countries, which I shall not much regard, as service. Much bas been endeavoured, to affecting the point or jurisdiction of this court. raise a distinction, as to the lawfulness of the In Holland, so far from perfect freedom, (1 negro's commencing slave, from the difficulty speak from knowledge) there are, who without ar impossibility of discovery by what means, being, conscious of contract, bare for offences under what authority, he became such. This, perpetual labour imposed, and death the con I apprehend, if a curious search were made, dition annexed to non-performance. Either not utterly inexplicable; por the legality of his all the different ranks must be allowed natural, original servitude difficult to be proved. But which is not readily conceived, or there are to what end ? Oar legislature, where it finds political ones, which cease not on change of a relation existing, supports it in all suita. soil. But in what manner is the negro to ble consequences, without using to enquire be treated ? How far lawful to detain hio? | bow it coinmenced. A man enlists for no speMy footman, according to my agreement, is cified time; the contract in construction of obliged to attend me from this city, or he is not; law, is for a year: the legislature, when once if no condition, that he shall not be obliged, the map is enlisted, ivterposes annually to from hence he is obliged, and no injury done. continue him in the service, as long as the
A servant of a sheriff, by the command of public has need of him. la times of public his master, laid band gently on another ser danger he is forced into the service; the laws vant of his master, and brought him before bis 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. be had so disposed of himhe might have justified bis taking of the ser- self. If the Court see a necessity of entering want by his own bands? The convenience of into the large field of argument, as to right of the public is far better provided for, by this the unfortunate man, and service appears to private authority of the master, than if the them deducible from a discussion of ibat nalawfulness of the command were liable to be ture to him, I neither doubt they will, nor wish litigated every time a servant thought fit to be they should not. As to the purpose of Mr. negligent or troublesome.
Steuart and captain Knowles, my argument Is there a doubt, but a negro might interpose does not require trover should lie, as for rein the defence of a master, or a master in de covering of property, nor trespass : a form of fence of a negro? If to all purposes of ad- action ihere is,' the writ Per Quod Servitium vantage, inutuality requires the rule to extend Amisít, for loss of service, which the Court to those of disadvantage. It is said, as pot would have recognized ; if they allowed the formed by contract, no restraint can be placed means of suiog a right, they allowed the right. by contract. Whichever way it was formed, The opinion cited, to prove the negroes free on the consequences, good or ill, follow from the coming hither, only declares them not sale. relation, not the manner of producing it. 1. able; does not take away their service. I would may observe, there is an establishment, by say, before I conclude, not for the sake of the which magistrates compel idle or dissolute per- court, of the audience; the matter how in sons, of various ranks and denominations, to question, interests
. the zeal for freedom of no serve. la the case of apprentices bound out person, if truly considered ; it being, only, by the parisha, neither the trade is. left to the whether I must apply to a court of justice, in choice of those who are to serve, nor the con a case, where if the servant was an English. sent of parties necessary; . no contract there man I might use my private authority to enfore is made in the former instance, none in force the performance of the service, accordthe latter; the duty remains the same. The ing to its nature,) or may, without force or outcase of cootract for life quoted from the year- rage, take my servant myself, or by another.. books, was recognized as valid; the solemnity I hope, therefore, I shalı pot suffer in the opionly of an instrument judged requisite. Your nion of those whose honest passions are fired lordships, (this. variety of service, witb divers at the name of slavery.. I hope I have not olher sorts, existing by lay bere,) have the transgressed my duty to humanity ; nor doubt option of classing bim amongst those servants I your lordsbip's discharge of yours to justice. wbich he most resembles in condition: therefore, (it seems to me) are by law authorised to Davy, Serj —My learned friend has thought enforce a service for life in the slave, that be- proper to consider the question in the begioing a part of bis situation before his coming ning of bis speech, as of great importances hither; which, as not incompatible, but agree. it is indeed so ; but not for those reasons prining with our laws, may justly subsist here: 1 cipally assigned by him. I apprebend, my think, I might say, must necessarily subsist, lord, the honour of England, the honour of
the laws of every Englishman, bere or abroad, / which as a subject he belonged at the time is now concerned. He observes, the number of bis death." All relations governed by mu is 14,000 or 15,000 ; if so, bigh time to put nicipal laws, must be so far dependant on an eud to the practice; more especially, siuce them, that if the parties change their country they must be sent back as slaves, though ser the municipal laws give way, if contradictory vasts here. The increase of such inhabitants, to the political regulations of that other country. bot interested in the prosperity of a country, [See the cases cited in Fabrigas v. Mostyn, int] is rery pernicious; in an island, which can, as in the case of master and slave,, being no such, not extend its limits, por consequently moral obligation, but founded on priociples, maintain more than a certain number of inha- and supported by practice, utterly foreign to bitants, dangerous in excess. Movey 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 oo 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 lo 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 eoforce, would necessaries; but this representation is merely rather appear to weaken the proposition, comimaginary and useless, if the encrease of peo- pared with the strength and propriety with ple exceeds the apaual stock of provisions re wbich that subject has already been explained quisite for their subsistence. Thus, foreign and urged. I am not covcerned to dispate, superfluous inhabitants augmenting perpetu- the negro way contract to serve ; nor deny ally, are ill to be allowed ; a nation of enemies the relation between them, while be contipues in the beart of a state, still worse. Mr. Dun- under his original proprietor's roof and pro niog availed himself of a wroog interpretation tection. It is remarkable, in all Dyer, (for I of the word "patural: it was not used in the have caused a search to be made as far as the sense ia wbich he thought fit to understand 4th of Henry the 81h,) there is not one instance that expression; it was used as moral, which of a man's being held a villein who denied Do laws can supersede. All contracts, I do bimself to be one ; nor can I'find a confession of bot venture to assert, are of a moral nature; , villenage in those times. [Lord Mansfield ;but I know pot any law to confirm an immoral The last confession of villepage extant, is in the contract, and execute it. The contract of 19th of Henry the 6tb.] 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 bard laws other consequences, flow from the marriage to insult bim. It will not permit slavery susproperly solemnized; are governed by the mu- pended for a while, suspended during the plea. bicipal laws of that particular state, under sure of the master. The instance of master whose institutions the contractiog and disposing and servant commencing without contract ; and parties live as subjects; and boywhose esta. that of apprentices against the will of the parblished forms they submit the relation to be re- ties, (the latter found in its conséquences ex. gulated, 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. lo tbe case of Tisorn and Watkins, in which If made in France, or any where but here, your lordship was counsel, deterioined before they would not have been binding here. To ford Hardwicke-A man died in Eogland, 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, wlio 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 bere : such as, if own hantls, 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 Reral puts in answer for the defendant; and af a man, 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 go- most abject state. Par. Dunning hias mentioned, verned by that law. Lord Hardwicke over what he is pleased to term pbilosopbical and ruled the objection against the sister's taking; moral grounds, I think, or something to that declared there was no pretence for it; and effect, of slavery; and would not by any means spoke to this effect, and nearly in the fol. have us think disrespectfully of those nations, lowing words—“Suppose a foreigner has ef- whom we mistakenly call barbarians, merely fects in our stocks, and dies abroad; they must for carrying on that trade: for my part, we be distributed accordiog to the laws not of may be warranted, I believe, in affirming the the place where his effects were, but of that to morality or propriety of the practice does not
enter their heads; they make slaves of whom 700,0001. sterling. How would the law stand they think fit. For the air of Englavd; I with respect to their settlement ; their wages? thiok, however, it has been gradually purifying How many actions for any slight coercion by ever since the reigo of Elizabeth. Mr. Dun- the master? We cannot in any of these points ning seems to bave discovered so much, as be direct the law; the law must rule us. Sa finds it changes a slave into a servant ; though these particulars, it may be matter of weighty unbappily he does not think it of efficacy consideration, what provisions are made or set enough to prevent that pestilent disease re- by law. Mr. Steuart may end the question, viving, the instant the poor man is obliged to by discharging or giving freedom to the negro. quit (voluntarily quits, and legally it seems we I did think at first to put the matter to a more ought to say,) this happy country. However, solemn way of argument:
: but if my brothers it has been asserted, and is now repeated by agree, there seems no occasion. I do not ima. me, this air is too pure for a slave to breathe in : gine, after the point has been discussed on both I trust, I shall not quit this court without cer. sides so extremely well, any new light could be taio conviction of the truth of that assertion. 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 owner 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 comIn five or 'six cases of this nature, 1 bave 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 ove band, 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 ac and 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 ma
Trinity Term, June 22, 1772. terial difference. The now question is, Whe Lord Mansfield. On the part of Sommersett, ther any dominion, authority or coercion can the case which we gave notice should be debe exercised in this country, on a slave accord. cided this day, the Court now proceeds to give ing to the American laws? The difficulty of its opinion. I shall recite the return to the adopting the relation, without adopting it in writ of Habeas Corpus, as the ground of our all its consequences, is indeed extreme; and determination ; omitting only words of form. yet, many of those consequences are absolutely The captain of the ship on board of which the contrary to the municipal law of England. negro was taken, makes bis return to the writ We have no authority to regulate the condi. in terms signifying that there have been, and tions in which law shall operate. On the still are, slaves to a great number in Africa; other hand, should we think the coercive power and that the trade in them is authorized by the canoot be exercised : it is now about 50 years laws and opinions of Virginia and Jamaica ; sioce the opinion given by two of the greatest that they are goods and chattels; and, as such, men of their own or any times, (since which no saleable and sold. That James Sommerselt is contract has been brought to trial, between the a negro of Africa, and long before the return of masters and slaves ;) the service performed by the king's writ was brought to be sold, and was the slaves without wages, is a clear indication sold to Charles Steuart, esq. then in Jamaica, they did not think themselves free by coming, and has not been manumitted since ; that Mr. hither. The setting 14,000 or 15,000 men at Steuart, having occasion to transact business, once loose by a solemn opinion, is very dis came over bither, with an intention to return; agreeable in the effects ii threatens. There and brought Sommersett to attend and abide with is a case in Hobart, (Coventry and Woodfall,) bim, and to carry him back as soon as the busiwhere a mao had contracted to go as a ma. tiess should be transacted. That such inten. rimer: but the now case will not come within tion has been, and still continues; and that the that decision. Mr. Steuart advances no claims negro did remain till the time of his departure ou contract; he rests his whole demand on a in the service of his master Mr. Steuart, and right to the negro as slave, and mentions the quitted it without his consent; and thereupon, purpose of detainure to be the sending of him before the return of the king's writ, tbe said over to be sold in Jamaica. If the parties will Charles Steuart did commit the slave on board have judgment, fiat justitia, ruat cælum ;' let the Anne and Mary, to safe custody, to be kept justice be done whatever be the consequence. till he should set sail, and then to be taken Sol. a-bead may not be a bigh price; then with bim to Jainaica, and there sold as a slave. a loss follows to the proprietors of above and this is the cause why he, captain Koowles,