A COMPLETE COLLECTION

OF

STATE TRIALS,

&c. &c.

548. The Case of JAMES SOMMERSETT, a Negro, on a Habeas Corpus,* King's-Bench: 12 GEORGE III. A. D. 1771-72.

"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 war"Robert Sheddan against a Negro.-July 4, rant 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 trade, and who had been baptized in Britain, 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.

"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 municipat 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 an-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 countries; but the law of Jamaica, in this instance, 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

is repugnant to the first principles of morality and justice.

Subordination, to a certain extent, is necessary; but there are certain bounds, beyond which, if any institution, subjecting one individual 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 assuming of these rights, or bind the consenting party to submit to the condition of a slave. A stipulation 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.

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 slavery of negroes.

"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 all persons within the realm.

contra Nalvey, in Chancery 1762; Hargrave's Arg. p. 58.

"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 "The means by which those who carried cases were mentioned, in which different this child from his own country got him into judges had expressed opinions, that a negro their hands, cannot be known; because the coming into England is free there; 1 Salk. law of Jamaica makes no inquiry into that cir-666, Smith contra Brown and Cooper; Shanley cumstance. 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. Opprestion 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

"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, Jobn 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.""

at the time herein after-mentioned of bringing the said James Sommersett 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 obI have been favoured with the use of six servations on their situation; the use of pit'Memorials' or 'Informations,' which in the coal is of so late invention that villenage must, course of these two litigations were delivered at any rate, have disappeared in Scotland long into the Court of Session. Five of them appear before the working of coal could have become to have been prepared by men of very high a profession. Purchas (in vol. 3, p. 88, of his eminence in their profession, one for Sheddan collection) giving an account of Marco Paolo's the negro by sir David Dalrymple, after- travels, has the following curious passage exwards a judge with the title of lord Hailes; tracted from them: Throughout the whole two for Knight the negro, by Mr. M'Laurin, province of Katai (China), certain black afterwards lord Dreghorn, and Mr. Maconochie, 'stones are digged out of the mountains, now lord Meadowbank, and two for Wedder- which, put into the fire, burn like wood, and burn (Knight's master), by Mr. Ferguson, af- ' being kindled, preserve fire a long time: as terwards lord Pitfour, and Mr. Cullen, after- if they be kindled in the evening, they keep wards lord Cullen, respectively: they display quick fire all the night; and many use those a copiousness and variety of curious learning, stones, because, that though they have store ingenious reasoning, and acute argumentation, of wood yet there is such frequent use of intimately connected with the case now be- 'stones and leathes thrice every week that the fore us. 'wood would not serve.' The same observaWith respect to Memorials' or Information is transcribed into the Histoire Générale de tions,' in causes depending in the Court of Ses-Voyages, tom. 9, p. 356. It was one of the sion, 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 glebre 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 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

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 represen'tatum est; nam pauperes penè nudos ad 'templa mendicantes acceptis lapidibus eleemo'synæ 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 banded

negro slaves in Africa; and that during all the
time aforesaid there hath been, and still is a
trade, carried on by his majesty's subjects,
from Africa to his majesty's colonies or plan-

down to us. It is therefore plain, that the pro-
fession of coalliers did not commence early
enough to have received the remains of the
ancient villeins. The circumstances of a coal.
lier likewise indicate a very different origin.
"Coalliers are not born adscriptitii. A coal
hewer is a profession which is voluntarily em-
braced, 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 pro-
perty, and transmits it; and has been found,
in the case of Rutherglen, decided 20 Fe-
bruary 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
coallier is perfectly different from that of a vil-
lein. The art of working coal successfully
requires long practice to attain, and is preju-
dicial to the bealth of those who are not early
accustomed to it. It was, therefore, extremely
natural, when coal works were begun to be set
on foot, that the proprietors should, in return
for the bigh wages they gave the workmen,
take them bound to continue in their service
for a long term of years, or for life; accord-
mgly we find, that it was at first customary to
take such bonds from coalliers; and, it is
known, that the practice continued after the in-
tervention of parliament had superseded the
necessity of 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 sist on it: yet, it is not believed, that these statutes were ever urged as inductive of slavery. The same observations are in general so applicable to the state of salters, that it is unnecessary to consider 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 gleba,' 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.

"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 villenage disappeared: and to prove this, he cites a 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. 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.

And (the pursuer

"These observations, the pursuer bumbly apprehends, sufficiently explain any thing particular 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 same way it was very natural to seek a curb for the indolence or capriciousness of coalliers, This circumstance seems to be little conwhose high wages, like those of many other nected with the present question; but the purkinds of workmen, disposed them to idleness, suer's arguments appear to have no tendency to faction, or arrogance. All regulations, how-prove that the state of the coalliers in Scotland ever, framed with such views, are evidently commercial, and never can be construed as either 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, c. 91, oblige an advocate to plead causes whether he chooses or not; if, in the one case, a client, and in the other, the court pleases to in

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.