"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, after wards 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 be fore us. With respect to Memorials' or Informations,' 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 glebae adscriptitii' and cannot be bired 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 v. 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 high 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 | 6 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 observation is transcribed into the Histoire Générale de 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 Scotia miraculum representatum 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 negro slaves in Africa; and that during all the Lime aforesaid there hath been, and still is a trade, carried on by his majesty's subjects, from átrica to his majesty's colonies or plan sary to consider it." tations of Virginia and Jamaica in America, and other colonies and plantations belonging to his majesty in America, for the necessary supplying of the aforesaid colonies and plantations with deas to us. It is therefore plain, that the pro- sist on it: yet, it is not believed, that these fession of coalliers did not commence early statutes were ever urged as inductive of slavery. ough to have received the remains of the The same observations are in general so appliancient villeins. The circumstances of a coal-cable to the state of salters, that it is unnecesher likewise indicate a very different origin. "Coalliers are not born adscriptitii. A coal hewer is a profession which is voluntarily embraced, and, like other professions, is regulated by particular laws, which are more or less strict, according as the interest of the public is thought to require. The wages of a coallier, like those of labourers in any other profession, that is by its nature exclusive, are higher than common workmen receive. He acquires property, and transmits it; and has been found, in the case of Rutherglen, decided 20 February 1747, intitled, as well as any other subject, to be a counsellor of a burgh; be must, with equal reason, be capable of being elected a member of parliament. These particulars are sufficient evidence, that the condition of a coalier is perfectly different from that of a villan. The art of working coal successfully requires long practice to attain, and is prejudicial to the health of those who are not early accustomed to it. It was, therefore, extremely natural, when coal works were begun to be set os foot, that the proprietors should, in return for the high wages they gave the workmen, take them bound to continue in their service for a long term of years, or for life; accordgly we find, that it was at first customary to take such bonds from coalliers; and, it is known, that the practice continued after the intervention of parliament had superseded the Becessity of it. On the part of the defender it was argued by Mr. Ferguson (lord Pitfour,) “There still exists in this country a species of perpetual servitude, probably the remains of the original adscriptitii glebae,' or villeins, which is supported by late statutes, and by daily practice, viz. That which takes place with regard to the coalliers and salters, where, from the single circumstance of entering to work after puberty, they are bound to perpetual service, and sold along with the works; and indeed, in our law, there are several other examples of persons being bound to servitude during their lives. The act of parliament 1597, cap. 272, enacts, That stark beggars and their bairns be employed in common works, and their service, mentioned in the act of parliament 1579, to be prorogate during their lifetimes.' And, without going further, it is the case with every soldier and sailor, the former of whom is shot, if he endeavours to make his escape at any period of his life, by express law; and the sailor is subjected, during the same space by a practice universally admitted, to be seized by force, and sent against his will to the remotest corners of the world. passage from Marco Paolo, and another from Eneas Sylvius; from which it would appear, that these authors had been unacquainted with that mineral, till the former saw it in China, and the latter in Scotland. And (the pursuer adds,) Eneas Sylvius observes, that coal was only used in Scotland where it was barren of wood; and as it is well known that, during the reign of the Jameses, Scotland was very much covered with wood, there could be very little occasion for coal. "The pursuer is pleased to argue, that the coalliers and salters are not a remains of villenage; and his argument for this is, that the use of coal in Scotland is so late a discovery, that it must have taken place long after villenThese observations, the pursuer humbly ap-age disappeared: and to prove this, he cites a prehends, sufficiently explain any thing particaiar in the state of coalliers. In the infancy of improvement men are apt to adopt expedients for removing the obstructions it meets with, and other evils which they feel, but the nature and effectual remedies of which they do not comprehend. Thus incorporations and monopolies on the one hand, and on the other, restraints on the members of incorporations and on monopolists have originated. In the ame way it was very natural to seek a curb for the indolence or capriciousness of coalliers, wise high wages, like those of many other Lands of workmen, disposed them to idleness, faction, or arrogance. All regulations, how ever, framed with such views, are evidently Commercial, and never can be construed as her favouring liberty or slavery, any more than the act of navigation, or any other thing of the same nature. It might be proved, that an advocate was a slave on the same principle as a coallier. The acts 1537, c. 64, and 1587, € 91, oblige an advocate to plead causes whether be chooses or not; if, in the one case, a ent, and in the other, the court pleases to in "This circumstance seems to be little connected with the present question; but the pursuer's arguments appear to have no tendency to prove that the state of the coalliers in Scotland is not a continuation of the ancient villenage. By the charter above recited, that institution is traced down to the year 1368; and in all probability it continued a considerable time longer. Marco Paolo went to China about 100 years before that; so surely no inference can be drawn from the Italians being unacquainted with coal in the year 1270, that this mineral was not discovered in Scotland before the year 1368. 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 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 in 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 odd 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 Æneas 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. 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 Sinclair's Statistical Account of Scotland, p. 370,) 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 advanced by, or on behalf of coal owners or 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 certainly 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. Dès qu'on esclave y" [sc. en France]" a mis le pied, il y acquiert la liberté," p. 504. Dès qu'un esclave est entré en France, I 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' [se. Lutetia] sacro-sancta civitas, quæ præbet omnibus libertatis atrium quoddam, asi'Fumque 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. 583.]" 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 anteurs, qu'on ne connoit point d'esclave en France, et que si tôt qu'un esclave étranger a mais 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 roy sume, 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 Franfois," 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 ordsary exercise of boys at school- cùm perat savos classis numerosa tyrannos.'" The lue is in Juvenal, 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 précieux 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 esclares," 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 royaume, 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 sla very. tensions of the negro, admitted and maintain M. Tribard, who pleaded against the preed the proposition that there were no slaves in the case of negroes, belonging to French West France, as a general rule; but contended that 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 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 prétendent 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 négrés 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 signalement. "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. 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 négies des colonies,' by which, after reciting, inter alia, "comme nous avons été informés, que plasieurs babitans de nos isles de l'Amérique dé-neglected to comply with the prescribed regulasirent envoyer en France quelques uns de leurs tions, the negroes shall become free, and the owners shall lose all property in them. 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 vided however, that in case the owners have the colonies at the will of their owners: it is pro the case before us. 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 in- Mr. Baron Maseres (Historiæ Anglicanæ Seserted in the 13th volume of the "Causes Cé- lecta Monumenta, pp. 13, 381,) observes of a lébres," the date is twice mentioned to be March passage in the Encomium Emma that "it plain1685. In that volume the edict bears the folly shews that there were at this time in Denmark lowing 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 month of August, 1685, the king issued another edict for the establishment of courts of justice in St. Domingo, 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, er 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 handycraftsmen 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, bis father, is said to have been composed of men of this class, |