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REIGN OF KING GEORGE THE THIRD.
COMMENCEMENT OF THE NEW SERIES.
aforesaid, A. D. 1775
A COMPLETE COLLECTION
548. The Case of JAMES SOMMERSETT, a Negro, on a Habeas
Corpus,* King's-Bench : 12 GEORGE III. A. D. 1771-72. Of this Case only a Statement of the Facts, called the Ann and Mary, John Knowles comand Mr. Hargrave's learned Argument were mander, lying in the Thames, and bound for iuserted in the former edition of this work. Jamaica ; and lord Mansfield, on an application I have bere added the other Arguments, and of Habeas Corpus, directed to Mr. Knowles,
supported by these affidavits, allowed a writ the Judgment of the Court, from Loffi's Re- and requiring bim to return the body of Somports, in which is a Note of the Case under mersett before his lordship, with the cause of
detainer. the name of Sommersett against Stewart.
Mr. Knowles on the 9th of December proON the 31 of December 1771, affidavits were duced the body of Sommersett before lord made by Thomas Walklin, Elizabeth Cade, Mansfield, and returned for cause of detainer, and John Marlow, that James Sommersett, a that Sommersett was the negro slave of Charles negro, was confined in irons on board a ship Steuart, esq. who had delivered Sommersett
* The very important matters which this “ Joseph Knight, a Negro, against Jolio Wed, case ipvolved, viz. first, The rights over the
derburn.- January 15, 1778. person of a negro resident Here, claimed by another person as the owner of the negro; trade, having imported a cargo of negroes into
“ The commander of a vessel, in the African and, supposing such rights to exist, secondly, Jamaica, sold Joseph Knigbi, one of them, as The extent of them; and thirdly, The means of inforcing them, were, I believe, never, ex
a slave, to Mr. Wedderburn. Kuight was
then cept in this case, made the subject of a suit at
oy, see ogly about twelve or thirteen law in England. But in Scotland two cases
age. of this sort have occurred before the Court of
“ Some time after, Mr. Wedderburn came Session ; 1, That of Sheddan against Sheddan,
over to Scotland, and brought tbis negro along 4. D. 1756 ; 2, That of Knight against Wed with im, as a personal servant. derburn, A. D. 1775–1778.
“ The negro continued to serve him for sere
ral years, without murmuring, and married in Of these two cases the following reports are the country. But, afterwards, prompted to asprinted from the Dictionary of Decisions,' tit. sert bis freedom, be took the resolution of Slave,' vol. 33, pp. 14,545, et seq. :
leaving Mr. Wedderburn's service, who, being
informed of it, got him apprehended, on a war“ Robert Sheddan against a Negro.- July 4, rant of the justices of peace. Knight, on his 1757.
examioation, 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 ibat be must continue trade, and who had been baptized in Britain, as before.' having claimed bis liberty, against bis master · Kvight then applied to the sheriff or the Robert Sheddan, who bad put him on board a county, (Perthshire), by petition, setting forth, sbip, to carry bim back to Virginia, the Lords • That Mr. Wedderburn insisted on bis conappointed counsel for the negro, abd ordered • tinuing a personal servant with birn,' and memorials, and afterwards a hearing in pre prayed the sheriff to find, • That he cannot be sence, upon the respective claims of liberty i continued in a state of slavery, or compelled and servitude by the master and tbe negro. • to perpetual service ; and to discharge Mr.
" But, during the hearing in presence, the • Wedderburn from sending the petitioner begro died ; so the point was not determined.” abroad.' VOL. XX.
into Mr. Knowles's custody, in order to carry ginia, and had afterwards brought him into bim to Jamaica, and there sell him as a slave. England, where he left his master's service; Affidavits were also made by Mr. Stewart and and that his refusing to return, was the occatwo other gentlemen, to prove that Mr. Steuart sion of his being carried on board Mr. Knowles's * bad purchased Sommersett as a slave in Vir- ship.
“ After some procedure in this process, the in all the ancient nations, and in all the modern sherifffound, that the state of slavery is not European nations, for many ages. In some recognized by the laws of this kingilom, and is of them it still remains; and in none of them inconsistent with the principles thereof; that bas it been abolished by positive enactments, de'the regulations in Jamaica, concerning slaves, claring it unjust and illegal, but gone into dis. • do not extend to this kingdom; and repelled use by degrees, in consequence of many diffe'the defender's claim to a perpetual service. rent causes. Though, therefore, the municiMr. Wedderburn having reclaimed, the sheriff pal law of this country does not now admit of found, That perpetual service, without this state of slavery in the persons of citizens, wages, is slavery ; and therefore adhered.' yet, where foreigners, in that state, are brought
" The defender removed the cause into the into the country, the right of their masters over court by advocation. The lord ordinary took them ought not to be annihilated. it to report, upon informations. Being a ques. " In this case, the master is not insisting for tion of general importance, the Court ordered the exercise of any rigorous powers. He only a hearing in presence, and afterwards ipforma- demands, that he shall be intitled to the persotions of new, upon which it was advised. nal services of the negro, in this country, dur
" Pleaded for the Master: That he had a ing life. His right io this extent, at least, is right either to the perpetual service of the not immoral or unjust ; nor is it even repronegro in this country, or to send him back to bated by the municipal law of this country, the plantations from which he was brought. A person may bind himself to a service for life ; His claim over the negro, to this extent, was Ersk. Inst. b. 1, t. 7, § 62. argued on the following grounds :
“ But, in the last place, if this is denied, the * The productions of the colonies, ever master must, at least, be permitted to compel since they were settled, have been cultivated the negro to return to the plantations, from by the means of negro slaves imported from whence he was brought; otherwise he is inthe coast of Africa. The supplying the colo- tirely forfeited of his right. pies with these slaves has become an extensive “Some cases from the English law-books trade; without which, the valuable objects of were adduced to show, that, in England, the commerce, now furnished by the plantations, master's right of property in his negro remains could not be cultivated. British statutes have after he is brought into that country; Butts given sanction to this trade, and recognized the contra Penny, 1677; Keble's Rep. p. 3, property of the master in such slaves; 10th p. 785. Gilly contra Cleves; 5th'William W. 3, c. 26; 5th Geo. 2, c. 7; 234 Geo. and Mary, lord Raymond, Rep. 5, p. 147; 1, c. 3.
and the opinion of two very eminent lawyers, “The property which, in Jamaica, was es in the year 1729, sir Philip Yorke, then attor. tablished in the master over the negro, under ney-general, and Mr. Talbot, solicitor-general, these statutes, and the municipal law there, in these words :: We are of opinion, that a cannot be lost by a mere change of place. On slave, by coming from the West-Indies, principles of equity, rights acquired under the either with or without his master, to Great laws of foreign countries are supported and · Britain or Ireland, doth not become free; and inforced by the courts of law here." A right of that bis master's property or right in him is property will be sustained in every country not thereby determined or varied ; and bapwhere the subject of it may come. The status ' tism doth not bestow freedom on bim, nor of persons attend them wberever they go ; make any alteration in his temporal condition Huber, lib. 1, t. 3, c. 12.
• in these kingdoms. We are also of opinion, “ The law of the colonies is not to be con- " that the master may legally compel bim to sidered as unjust, in authorizing this condition return to the plantations.' 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 sub. ment of crimes. In cases where slavery is aq. 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 anthority in this country, The municipal law of vo country will be pre. On grounds of equity, the Court, in somie 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 lordship allowed till that day for settling the to the determination of the court of King's. form of the return to the Habeas Corpus. Acbench, Sommersett with sureties was bound in cordingly on that day Sommersett appeared in a recognizance for his appearance there on the the court of King's-bench, and then the followsecond day of the next Hilary term; and his
ising returu was read : is repugnant to the first principles of morality men of modern times have thought, that sugar and justice.
and tobacco might be cultivated without the “ Subordination, to a certain extent, is ue. slavery of negroes. cessary; but there are certain bounds, beyond “ The dominion, therefore, given by the which, if any institution, subjecting one indi-law of Jamaica over the pursuer, a foreigner vidual to another, should go, the injustice and there, being unjust, can receive no aid from immorality of it cannot admit of a doubt. the laws of this couptry. The modification Such is the institution of slavery, depriving proposed of this claim of slavery, makes no men of the most essential rights that attend difference on the merits of the question. It is their existence, and which are of a nature tbat plain, that, to give the defender any right over admit not of any equivalent to be given for the pursuer, the positive law of Jamaica must them. The most express consent, given in a always be resorted to; consequently, the ques, voluntary contract, cannot authorize the assum- tion recurs, Whether that law ought to be ening of these rigbts, or bind the consenting party forced beyond its territory? But a service for to submit to the condition of a slave. A stipu- life, without wages, is, in fact, slavery. The lation of that kind affords intrinsic evidence of law of Scotland would not support a voluntary an undue advantage taken, and is therefore contract in these terms; and, even where wages sufficient to void the contract.
are stipulated, such a contract has been voided " But, although it were justifiable to admit by the Court; Allan and Mearns contra Skene of a slavery proceeding on a title of contract, and Burnet, No. 5, p. 9454, voce Pactum of conquest, or of punishment, the law of Ja. Ilicitum. maica would not be the less unjust. Ja sub- “The answer was given to the other claim, jecting the Africans to slavery, that law re- of sending the negro out of this country, withqaires no title under any of these grounds. out his consent, that it supposes the dominion The circumstance, that the negroes are brought given over the pursuer by the law of Jamaica isto Jamaica, is all that is requisite to fix on to be just. The negro is likewise protected them indiscriminately the condition of slavery. against this by the statute 1701, c. 6, which It is, therefore, a slavery established ou force expressly prohibits the carrying any persops and usurpation alone, which no writer on the out of ihe kingdom witbout their consent. law of nations bas vindicated as a justifiable The words are general, and apply to all perorigin of slavery.
sons within the realm. " If the law of Jamaica had made any dis- “ In support of this argument for the negro, tinction, or required any title to the slavery of authorities of French writers were adduced, to an African, this negro would never have been show, tbat formerly, by the laws of France, reduced by it to that state. Being a child uegroes brought into ihat country from the when be was brought into Jamaica, he could plantations became free. This was their law, enter into po contract, commit no crime, and until lately, that, by special edicts, some alterconquest cannot give a right to kill or enslave ations were made upon it; Denisart, tom. 3, children.
0. Negro. On the law of England, several "The means by which those who carried cases were mentioned, in which different this child from bis own country got bim into judges had expressed opinions, that a degro their bands, cannot be known ; because the coming into England is free there; 1 Salk, law of Jamaica makes no inquiry into that cir. 666, Sinith contra Brown and Cooper ; Shanley cumstance. But, whether he was ensnared, contra Nalvey, in Chancery 1762 ; Haror bought from his parents, the iniquity is the grave's Arg. p. 58. same. That a state of slavery bas been ad- “ But the late case of Sommersett, the nemitted of in many nations, does not render it gro, decided in the King's-bench, in the year less adjust. Child-murder, and other crimes 1772, was chiefly relied on, and said to be in of a deep dye, have been authorised by the point; at least upon this question, Whether laws of different states. Tyranny, and all the negro could be sent out of England ? sorts of oppression, might be vindicated on the “ The Court were of opinion, that the dosame groupds.-Neither can the advantages minion assumed over tbis negro, under the law procured to this country, by the slåvery of the of Jamaica, being unjust, could not be supnegroes, be hearkened to, as any argument in ported in this country to any extent : that, this question, as to the justice of it. Oppres. therefore, the defender bad 'no right to tho how and iniquity are not palliated by the gain negro's service for any space of time, nor to and advantage acquired to the authors of them. send bim out of the country against his conBut the expediency of the institution, even for sent: that the negro was likewise protected the subjects of Great Britain, is much doubted under the act 1701, c. 6. [The · Aci for preof by those who are best acquainted with the venting wrongous imprisonment, and against State of the colonies; and some enlightened updue delays in Trials,' more particularly