Charles Steuart having occasion to transact certain affairs and business of him the said Charles Steuart in this kingdom, he the said Charles Steuart, before the coming of the said writ to me, to wit, on the first day of October in the year of our Lord 1769, departed from America aforesaid, on a voyage for this kingdom, for the purpose of transacting his aforesaid affairs and business, and with an intention to return to America, as soon as the said affairs and business of him the said Charles Steuart in this kingdom should be transacted;

exercised in fixing its amount, which might defeat the whole provisions of the law, it ascertains the maximum of bail in each case, according to the rank of the person in custody for trial; and imposes high penalties on the judge who shall delay modifying the amount, or refuse to accept of sufficient bail, when offered. The act, however, would have been greatly defective had it stopped here, for of what use would have been the precautions already mentioned, if in cases either where bail could not be found by the party entitled to it, or when it could not be received, owing to the nature of the crime, the person imprisoned might be wrongously detained, in consequence of a delay in putting him to trial by a certain day; the act therefore directs, that in such cases, the party shall have right to insist, that within a certain time a diet shall be fixed for his trial, and the trial carried through and concluded by a determinate day, otherwise he is to be set at liberty, under the penalty of wrongous imprisonment, and is not to be again incarcerate, unless on new criminal letters raised against him, before the lords of Justiciary; in which last case, his trial must be concluded in another day, particularly fixed by the enactment, otherwise the prisoner is to be set at liberty, and to be for ever free from all question or process for that crime. Certain exceptions are then introduced with respect to treason, and some other offences more immediately affecting the public security; and a provision annexed, that no person shall be transported furth of this kingdom,' except with his own consent, given before a judge or by legal sentence, under the certification, that any judge or magistrate, who shall give order for such transportation, or any one, who shall so transport another, shall not only be liable in the pecuniary pains of wrongous imprisonment, as declared by the act, but shall lose their offices, and be declared incapable of all public trust. These are the general outlines of this important statute; the value of which cannot be too highly prized by the people of Scotland, nor its observance too strictly maintained by the judges and magistrates."

By the act of the 39th of George 3, persons accused of sedition are excepted from certain provisions contained in the act against wrongous imprisonment. As to this, see the Cases of the Rioters against the Militia Law, 4. D. 17.98.

and afterwards, to wit, on the 10th day of November in the same year, arrived in this kingdom, to wit, in London, that is to say, in the parish of St. Mary-le-Bow in the ward of Cheap; and that the said Charles Steuart brought the said James Sommersett, his negro slave and property, along with him in the said voyage, from America aforesaid to this kingdom, as the negro slave and property of him the said Charles Steuart, to attend and serve him, during his stay and abiding in this kingdom, on the occasion aforesaid, and with an intent to carry the said James Sommersett back again into America, with him the said Charles Steuart, when the said affairs and busi ness of the said Charles Steuart should be transacted; which said affairs and business of the said Charles Steuart are not yet transacted, and the intention of the said Charles Steuart to return to America as aforesaid hitherto hath continued, and still continues. And I do further certify to our said lord the king, that the said James Sommersett did accordingly attend and serve the said Charles Steuart in this kingdom, from the time of his said arrival, until the said James Sommersett's departing and absenting himself from the service of the said Charles Steuart herein after-mentioned, to wit, at London aforesaid in the parish and ward aforesaid; and that before the coming of this writ to me, to wit, on the first day of October in the year of our Lord 1771, at London aforesaid, to wit, in the parish and ward aforesaid, the said James Sommersett, without the consent, and against the will of the said Charles Steuart, and without any lawful authority whatsoever, departed and absented himself from the service of the said Charles Steuart, and absolutely refused to return into the service of the said Charles Steuart, and serve the said Charles Steuart, during his stay and abiding in this kingdom, on the occasion aforesaid: whereupon the said Charles Steuart afterwards and before the coming of this writ to me, to wit on the 26th day of November in the year of our Lord 1771, on board the said vessel called the Ann and Mary, then and still lying in the river Thames, to wit at London aforesaid, in the parish and ward aforesaid, and then and still bound upon a voyage for Jamaica aforesaid, did deliver the said James Sommersett unto me, who then was, and yet am master and commander of the said vessel, to be by me safely and securely kept and carried and conveyed, in the said vessel, in the said voyage to Jamaica aforesaid, to be there sold as the slave and property of the said Charles Steuart; and that I did thereupon then and there, to wit at London aforesaid in the parish and ward aforesaid, receive and take, and have ever since kept and detained the said James Sommersett in my care and custody, to be carried by me in the said voyage to Jamaica aforesaid, for the purpose aforesaid. And this is the cause of my taking and detaining the said James Sommersett, whose body I have now ready as by the said writ I am commanded."

After the reading of the return, Mr. Serjeant Davy, one of the counsel for Som mersett the negro, desired time to prepare his argument against the return; and on account of the importance of the case, the Court postponed hearing the objections against the return, till the 7th of February, and the recognizance for the negro's appearance was continued accordingly. On that day Mr. Serj. Davy and Mr. Serj. Glynn argued against the return, and the farther argument was postponed till Easter term, when Mr. Mansfield, Mr. Alleyne, and Mr. Hargrave, were also heard on the same side. Afterwards Mr. Wallace and Mr. Dunning argued in support of the return, and Mr. Serjeant Davy was heard in reply to them. The determination of the Court was suspended till the following Trinity term; and then the Court was unanimously of opinion against the return, and ordered that Sommersett should be discharged. ARGUMENT OF MR. HARGRAVE FOR the Negro.*

Though the learning and abilities of the gentlemen, with whom I am joined on this occasion, have greatly anticipated the arguments prepared by me; yet I trust, that the importance of the case will excuse me, for disclosing my ideas of it, according to the plan and order, which I originally found it convenient to adopt.

case.

The case before the Court, when Short state of expressed in few words, is this. Mr. Steuart purchases a negro slave in Virginia, where by the law of the place negroes are slaves, and saleable as other property. He comes into England, and brings the negro with him. Here the negro leaves Mr. Steuart's service without his consent; and afterwards persons employed by him seize | the negro, and forcibly carry him on board a ship bound to Jamaica, for the avowed purpose of transporting him to that island, and there selling him as a slave. On an application by the negro's friends, a writ of Habeas Corpus is granted; and in obedience to the writ he is produced before this court, and here sues for the restitution of his liberty.

of the case.

The questions, arising on this Importance case, do not merely concern the unfortunate person, who is the subject of it, and such as are or may be under like unhappy circumstances. They are highly interesting to the whole community, and cannot be decided, without having the most general

The following Argument, on the behalf of the negro, is not to be considered as a speech actually delivered: for though the author of it, who was one of the counsel for the negro, did deliver one part of his Argument in court without the assistance of notes; yet his Argument, as here published, is entirely a written composition. This circumstance is mentioned, lest the author should be thought to claim a merit to which he has not the least title. Hargrave.

and important consequences; without extensive influence on private happiness and public security. The right claimed by Mr. Steuart to the detention of the negro, is founded on the condition of slavery, in which he was before his master brought him into England; and if that right is here recognised, domestic slavery, with its horrid train of evils, may be lawfully imported into this country, at the discretion of every individual foreign and native. It will come not only from our own colonies, and those of other European nations; but from Poland, Russia, Spain, and Turkey, from the coast of Barbary, from the western and eastern coasts of Africa, from every part of the world, where it still continues to torment and dishonour the human species. It will be transmitted to us in all its various forms, in all the gradations of inventive cruelty and by an universal reception of slavery, this country, so famous for public liberty, will become the chief seat of private tyranny.

Points which arise in the

case.

(1st Point) on the right the negro's person.

claimed in

Slavery the

foundation of the negro.

the claim to

(1st.) The first point, concerning Mr. Steuart's right in the person of the negro, is the great one, and that which, depending on a variety of considerations, requires the peculiar attention of the Court. Whatever Mr. Steuart's right may be, it springs out of the condition of slavery, in which the negro was before his arrival in England, and wholly depends on the continuance of that relation; the power of imprisoning at pleasure here, and of transporting into a foreign country for sale as a slave, certainly not being exerciseable over an ordinary servant. Accordingly the return fairly admits slavery to be the sole foundation of Mr. Steuart's claim; and this brings the question, as to the present lawfulness of slavery in England, directly before the Court. It would have been more artful to have asserted Mr. Stenart's claim in terms less explicit, and to bave stated the slavery of the negro before his coming into England, merely as a ground for claiming him here, in the relation of a servant bound to follow wherever bis master should require his service. The case represented in this disguised way, though in substance the same, would have been less alarming in its first appearance, and might have afforded a better chance of evading the true question between the parties. But this artifice, however convenient Mr. Steuart's counsel may find it in argument, has not been adopted in the return; the case being there stated as it really is, without any suppression

such a consideration. Mr. Locke has framed another kind of argument against slavery 'mancipia, quasi manu capti.' The conqueror, say the civilians, had a right to the life of his captive; and, having spared that, has a right to deal with him as he pleases. But it is an untrue position, when taken generally, that, by the law of nature or nations, a man may kill his enemy: he has only a right to kill him, in particular cases; in cases of absolute necessity, for self-defence; and it is plain this absolute necessity did not subsist, since the victor did not actually kill him, but made him prisoner. War is itself justifiable only on principles of self-preservation; and therefore it gives no other right over prisoners but merely to disable them from doing harm to us, by confining their persons: much less can it give a right to kill, torture, abuse, plunder, or even to enslave, an enemy, when the war is over. Since therefore the right of making slaves by captivity depends on a supposed right of slaughter, that foundation failing, the consequence drawn from it must fail likewise. But, secondly, it is said that slavery may begin 'jure civili; when one man sells himself to another. This, if only meant of contracts to serve or work for another, is very just: but when applied to strict slavery, in the sense of the laws of old Rome or modern Barbary, is also impossible. Every sale implies a price, a quid pro quo,' an equivalent given to the seller in lieu of what he transfers to the buyer: but what equivalent can be given for life, and liberty, both of which (in absolute slavery) are held to be in the master's disposal? His property also, the very price he seems to receive, devolves ipso facto to his master, the instant he becomes his slave. In this case therefore the buyer gives nothing, and the seller receives nothing of what validity then can a sale be, which destroys the very principles upon which all sales are founded? Lastly, we are told, that besides these two ways by which slaves 'fiunt,' or are acquired, they may also be hereditary servi nascuntur;' the children of acquired slaves are, jure naturæ' by a negative kind of birthright, slaves also. But this, being built on the two former rights, must fall together with them. If neither captivity, nor the sale of one's self, can by the law of nature and reason reduce the parent to slavery, much less can they reduce the offspring.

"Upon these principles the law of England abhors, and will not endure the existence of, slavery within this nation: so that when an attempt was made to introduce it, by statute 1 Edw. 6, c. 3, which ordained, that all idle vagabonds should be made slaves, and fed upon bread, water, or small drink, and refuse meat; should wear a ring of iron round their necks, arms, or legs; and should be compelled by beating, chaining, or otherwise, to perform the work assigned them, were it never so vile; the spirit of the nation could not brook this condition, even in the most abandoned rogues; and

by contract (o); and the substance of it is, that a right of preserving life is unalienable; that freedom from arbitrary power is essential to the exercise of that right; and therefore, that no man can by compact enslave himself. Dr. Rutherforth (p) endeavours to answer Mr. Locke's objection, by insisting on various limitations to the despotism of the master; particularly, that he has no right to dispose of the slave's life at pleasure. But the misfortune of this reasoning is, that though the contract cannot justly convey an arbitrary power over the slave's life, yet it generally leaves him without a security against the exercise of that or any other power. I shall say nothing of slavery by birth; except that the slavery of the child must be unlawful, if that of the parent cannot be justified; and that when slavery is extended to the issue, as it usually is, it may be unlawful as to them, even though it is not so as to their parents. In respect to slavery used for the punishment of crimes against civil society, it is founded on the same necessity, as the right of inflicting other punishments; never extends to the offender's issue; and seldom is permitted to be domestic, the objects of it being generally employed in public works, as the galleytherefore this statute was repealed in two years afterwards. And now it is laid down, that a slave or negro, the instant he lands in England, becomes a freeman; that is, the law will protect him in the enjoyment of his person, and his property. Yet, with regard to any right which the master may have lawfully acquired to the perpetual service of John or Thomas, this will remain exactly in the same state as before; for this is no more than the same state of subjection for life, which every apprentice submits to for the space of seven years, or sometimes for a longer term. Hence too it follows, that the infamous and unchristian practice of withholding baptism from negro servants, lest they should thereby gain their liberty, is totally without foundation, as well as without excuse. The law of England acts upon general and extensive principles: it gives liberty, rightly understood, that is, protection, to a Jew, a Turk, or a Heathen, as well as to those who profess the true religion of Christ; and it will not dissolve a civil obligation be tween master and servant, on account of the alteration of faith in either of the parties: but the slave is entitled to the same protection in England before, as after, baptism; and, whatever service the heathen negro owed of right to his American master, by general not by local law, the same (whatever it be) is he bound to render when brought to England and made a Christian." Vol. 1, p. 423.

what of very subtle distinction, if not rather of In these passages, there appears to be some

contradiction.

(0) See Locke on Governm, 8vo edit. b. 2, c. 4, p. 213.

(p) See his Inst. Nat. Law, vol. 1, p. 480.