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“ 1, Jobn Knowles, commander of the vessel | at the time herein after-mentioneıl of bringing called the Ann and Mary in the writ hereunto the said James Sommersett from Africa, and long annexed, do most humbly certify and return to before, there were, and from thence hitherto our present most serene sovereigų the king ; that there have been, and still are great numbers of mentioned below] from being sent out of the being seized on violently by a third person, and country against his consent. The judgments sold to the claimant. It has, however, been of the sheriff were approved of, and the Court urged, that coalliers and salters are living proofs • remitted the cause simpliciter.""
of the former prevalence of villenage: it is,
therefore, not unnecessary to bestow a few obI bave 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,
are digged out of the mountains, now lord Meadow bank, 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 argomentation, 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 « Informa- tion 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 circumstances, which, at the publication of in that court, see the Edinburgh Review for Paolo's travels, was considered as a proof that January 1807. For the alterations which in they were fabulous. There is a passage in the year 1808 were made in the constitution Eneas Sylvius' (afterwards Pius 2.) account of of that court, see stat. 48 G. 3. c. 151.
Europe, which shows more directly, that the Mr. Barrington, in his Observations on stat. 1 use of pit-coal must have been very rare and Rich. 2, (notely) in the third edition) mentioned very inconsiderable in bis time even in Scotthat
many of the labourers in the salt-works land. Treating of Scotland, he observes, that and collieries in Scotland still continue glebee he was here (as a legate) in the time of Jaadscriptitii’and cannot be bired without the pro- cobus quadratus, and enquired about a miraprietor's consent." And as to this he referred to culous tree, which had been said to grow in a case in the Dictionary of Decisions, vol. 1, Scotland: He adds, · De quâ re cùm audivimus p. 312. I know not what case that was. In investigaremus (so in orig.] didicimus miracula Dorison's Dictionary of Decisions there are semper remotiùs fugere, famosámque arborem under title Coalier twelve cases, in all of which pon in Scotiâ, sed apud Orcades inveniri: tle servile condition of the class is recognised. Illud tamen in Scotia miraculum represen
In the Memorials which were presented io tatum est ; nam pauperes penè nudos ad the case of Knigbt o. Wedderburn, the contempla mendicantes acceptis lapidibus eleemodition of the coalliers and salters of Scotland • sypie gratiâ datis lætos abiisse conspeximus : was considered. I will here insert what was id genus lapidis, sive sulphureâ 'sive aliâ said of it by lord Meadowbank and lord Pitsour. pingui materiâ, pro ligno, quo regio nuda est,
“ The defender,” observed the first of those comburitur.' It is plain, from this account, that learned persons,“ bas mentioned the situation coals must have been very rare in Scotland. of coalliers and saiters as an evidence, that the It otherwise would have been quite absurd to law of Scotland is not repugnant to slavery. take notice of them only as used by beggars. It has been already shows, that although vil. Besides, he observes, that they were only used Jenage still existed, aitbough this bigh court where the country was barren of wood; and wonld even now record an acknowledgment of it is well known, that Scotland was, during villenage, and although other kinds of slavery the reigns of the Jameses, very much covered were adopted by the laws of this country, yet with it; so there could be very little occasion that the common law conid not be understood for coals. On the other hand, as there are reto favour the defender's claim. As long as the gular records extant, from the days of James common law acknowledges the law of nature to 1, it is impossible that villenage could then be its great principal and role, so long must it have existed, without sufficient evidence conreject a claim to a right of property in a man, cerning it appearing in the acts of parliament, or in his labour and industry, founded in his charters, transfers of property, and various being born of a captive or a criminal, or in his deeds among individuals, which are banded
negro slaves in Africa; and that during all the , tations of Virginia and Jamaica in America, and time aforesaid there hath been, and still is a other colonies and plantations belonging to his trade, carried on by bis 'majesty's subjects, majesty in America, for the necessary supplyfrom Africa to bis majesty's colonies or plan- ing of the aforesaid colonies and plantations with down 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. enough 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 unneceslier likewise indicate a very different origin. sary to consider it.”
"Coalliers are not born adscriptitii. A coal On the part of the defender it was argued by hewer is a profession which is voluntarily em- Mr. Ferguson (lord Pitfour,) “ There still exists braced, and, like other professions, is regulated in this country a species of perpetual servitude, by particular laws, which are more or less probably the remains of the original adscripstrict, according as the interest of the poblic i titii glebæ,' or villeins, which is supported by is thought to require. The wages of a coallier, late statutes, and by daily practice, viz. That like those of labourers in any other profession, which takes place with regard to the coalliers that is by its nature exclusive, are higher than and salters, where, from the single circumcommon workmen receive.
He acquires pro
stance of entering to work after puberty, they perty, and transmits it; and has been found, are bound to perpetual service, and sold along in the case of Rutherglen, decided 20 Fe- with the works ; and indeed, in our law, tbere bruary 1747, intitled, as well as any other are several other examples of persons being sobject, to be a counsellor of a burgh ; be must, bound to servitude during their lives. The act with equal reason, be capable of being elected of parliament 1597, cap. 272, enacts, That a member of parliament. These particulars siark beggars and their bairns be employed in are sufficient evidence, that the condition of a common works, and their service, mentioned coallier is perfectly different from that of a vil- in the act of parliament 1579, to be prorogate lein. The art of working coal successfully during their lifetimes.' And, without going requires long practice to attain, and is preju- further, it is the case with every soldier and dicial to the bealth of those who are not early sailor, the former of wbom, is shot, if be enaccustomed to it. It was, therefore, extremely deavours to make his escape at any period of natural, when coal works were begun to be set his life, by express law; and the sailor is subon foot, that the proprietors should, in return jected, during the same space by a practice for the bigh wages ihey gave the workmen, universally admitted, to be seized by force, and take them bound to continue in their service sent against his will to the remotest coruers of for a long term of years, or for life; accord- the world. mgly we fiod, that it was at first customary to “ The pursuer is pleased to argue, that the take such bonds from coalliers; and, it is coalliers and salters are not a remains of vilknown, that the practice continued after the in. lenage; and bis argument for this is, tbat the tervention of parliament bad superseded the use of coal in Scotland is so late a discovery, Decessity of it.
ibat it must have taken place long after villen"These observations, the pursuer bumbly ap- age disappeared: and to prove this, he cites a prehends, sufficiently explain any thing parti- passage from Marco Paolo, and another from cular in the state of coalliers. In the infancy Eneas Sylvius; from which it would appear, of improvement men are apt to adopt expe- tbat these authors had been unacquainted with dients for removing the obstructions it meets that iniveral, till the former saw it in China, with, and other evils which they feel, but the and the latter in Scotland.
And (the pursuer nature and effectual remedies of which they do adds,) Æneas Sylvius observes, that coal was not comprehend. Thus incorporations and only used in Scotland wbere it was barren of monopolies on the one hand, and on the other, wood; and as it is well known that, during the restraints on the members of incorporations reign of the Jameses, Scotland was very much and op monopolists have originated. In the covered with wood, there could be same way it was very natural to seek a curb occasion for coal. for the indulence or capriciousness of coalliers, This circumstance seems to be little con. whose high wages, like those of many oiber 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 is not a continuation of the ancient villenage. commercial, and pever can be construed as | By the charter above recited, that institution is either favouring liberty or slavery, any more
traced down to the year 1368; and in all probathan the act of navigation, or any other thing bility it continued a considerable time longer. of the same nature. It might be proved, tbat Marco Paolo went to China about 100 years an advocate was a slave on, ibe same principle before that; so surely no inference can be as a coallier. The acts 1537, c. 64, and 1587, drawn from the Italians being unacquainted c. 91, oblige an advocate to plead causes wbe with coal in the year 1970, that this mineral ther be chooses or not; if, in the one case, a was not discovered in Scotland before the year client, and in the other, the court pleases to in- 1368.
negro slaves; and that negro slaves, bronght the laws of Virginia and Jamaica aforesaid and in the course of the said trade from Africa to the said other colonies and plantations in AmeVirginia and Jamaica aforesaid, and the said rica, during all the time aforesaid, have been, other colonies and plantations in America, by and are saleable and sold as goods and chattels,
“ Æneas Sylvius was iu Scotland in James nal, was passed on the 23d day of May, 1775. the 1st's time. The defender does not know if | After which, it seems (see Mr. Benet's account the pursuer means by the expression of Ja- of Dudingston, in tbe 18th vol. of sir John Sincobus quadratus to insinuate that it was in clair's Staustical Account of Scotland, p. 570,) James the 4th's time; but if he does so, it's a that the coal masters strore to insure the demistake, for Æneas Sylvius died pope in the pendence of their coalliers, and consequently the 5th year of James 3, viz. 23 years before perpetuity of tbeir services, by seducing ibem James 4 succeeded; and there is no doubt into their debt: to remedy which, by stat. 39 that his journey to Scotland was in James the Geo. 3, c. 56, among other provisions respect. 1st's time, probably about the year 1430. He ing colliers in Scotland, it was enacted, • That then describes coal to have been in common no action shall be competent for money aduse in Scotland ; and it would appear very oddvanced by, or on behalf of coal owners or if there had been no coal-pits in Scotland 60 lessees to colliers, except for support of their years before that, to which ihe chafter above families in case of sickness,' in which case a recited brings down the existence of villeios or specific mode of procedure is provided. nativi.
In the negro case in France, which, uoder “ The quotation therefore from Æneas Syl- the title of · La Liberté reclamée par un négre vius is a proof of the direct contrary of what contre son roaitre qui l'a amené en France,' is the pursuer endeavours to inser from it. reported in the 13th vol, of · Les Causes Cé.
“The circumstance of two Italians being lébres,' &c. p. 492, edit. of 1747, and which I surprised at seeing pit-coal affords no pre-apprehend was determined in the year 1738, or sumption that it had not been used for many soon afterwards, the questions before the Court centuries in Scotland. It happens every day, appear to have been, ist, Whether the party that Englishmen are not believed in that coun. claiming the negro was such a person, as, by try, when they describe our coal to them even the French king's edict of October 1716, was at present.
permitted under certain formally prescribed coq“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, West Indian colonies into France, and to retain Scotland was very much covered with wond them there: and 2dly, Whether he had per. during the reigus of the Jameses. As Æneas formed those conditions; with respect 10 which Sylvius, who was an eye-witness, declares, it was provided in the edict, that, “ faute par that in the time of James 1, it was perfectly les maitres des esclaves d'observer les formabare of wood; and it is exceedingly probable, lités préscrites par les précedéns artieles, les that the immemorial use of pit-coal before that dits esclaves seront libres, et ne pourront être period, had induced the inhabitants to cut down reclamés." For thongh M, le Clerc, Pro, all the wood, without leaving or providing suf. cureur du Roi, did indeed mention, that pei, ficiently for that kind of fi:el.
ther the edict of March 1685, nor that of Oc. “ It is needless to enter, with the pursuer, tober 1716, had been registered in the parliainto the disquisition, whether the state of coal- ment of Paris, or transmitted to the proper liers be a severe kind of slavery or not; as it is officer of the court-of admiralty, yet it very certainly much more so than that to which the clearly appears, tbat he did not lay much stress defender claims to reduce him.”
on these topics. It is perhaps woriby of potice in this place, But the eloquence of M. le Clerc and the that though the memorial of Mr. Maconocbie other advocates wbo 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, do 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, wbere 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 bave 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 thereot, 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 saleable and sold by the proprietors thereof as been, and are the slaves and property of the goods and chattels. And I do further certify purchasers thereof, and have been, and are and return to our said lord the king, that Jameg sertion of a notorious fact. Yet, at the same le beau privilège d'affranchissement à tous les time, it was on all sides propounded and incal- esclaves, lorsqu'ils entrent dans ce climat heucated, with a diligence and copiousness of repe- reux, dont le seul nom répand de toute part la tition, which is not commonly expended upon bonne odeur de la liberté," p. 539. the maintenance of indisputable truths. I have “ Il n'est point d'esclare en France ; nos extracted from the report the following pas constitutions, nos usages étendent la faveur de sages, which, I believe, will sufficiently con. la liberté à tous les hommes en général qui firm what I have stated. They may also afford l'habitent,” p. 539. amusement, if not instruction, by exhibiting “ Il ne peut y avoir d'esclaves dans ce roythe complacency--perhaps I should rather say aume, il suffit méme d'y etre etabli
, ou d'y the triumph—with which, under the reigo of faire sa résidence, pour acquérir le bien préLewis the 15th, the descendants of the an- cieux de la liberté," p. 544. cient Pranks could rhapsodise concerning li. “Nos privilèges ont effacé jusqu'à l'idée de berty:*
l'esclavage en France," p. 546. “Il s'est toujours regardé comme libre, “Il n'y a en France aucuns esclaves; et depuis qu'il a mis le pied en France," p. 495. la coutume y est telle, que non seulement les
* Des qu’un esclave y" [sc. en France)" a François, mais aussi les étrangers, prenant port wis le pied, il y acquiert la liberté," p. 504. en France, et criant France et Liberté, sont
"Dès qu'un esclave est entré en France, hors de la puissance de celui, qui la possédoit," il devient libre," p. 504.
" Il faut conclare que l'esclave est devenu “ La France, mère de liberté, ne permet aulibre, dès le premier instant de son arrivée en cuns esclaves," p. 549. France," p. 508.
“ Les esclaves ont en France le privilège de * L'entrée dans la ville de Paris assure le se remettre en possession de leur liberté, au maintien, et devient l'asile, de la liberté.- Est' moment qu'ils sont entrés dans les terres de ce (sc. Lutetia) • sacro-sancta civitas, qure præ- royaume," p. 551. I bet omnibus libertatis atrium quoddam, asi- « De tems immémorial l'esclavage n'a húmque immunitatis,"" pp. 511. 526. point lieu en France, et l'esclave étranger de
"Je ne me propose point ici, de porter la vient libre, aussitôt qu'il y aborde," p. 551. moindre atteinte au plus précieux de nos bieus : “ Donter si en France un homme est libre, je de prétens point envier, à l'heureux climat si un esclave acquiert sa liberté par son entrée que nous babitons, cette prérogative éminente, en France, c'est attaquer l'autorité souveraine attachée à la seule entrée en ce royaume,"[this de nos rois, et faire injure à la nation," p. 498. phrase occurs again in p. 539.] ® et qui forme le gage le plus assuré de la liberté, dont nous early authority
To tbese may be added the following more jouissons pous-mêmes," p. 512.
" Je ne craindrai pas d'avouer avec tous les « Toutes personnes sont franches en ce royauteurs, qu'on ne connoit point d'esclave en aume, et sitost qu'un esclave a atteint les France, et que si tôt qu'un esclave étranger a marches diceluy se faisant baptizer, il est afmis le pied sur notre continent, il est gratifié franchi." Institutes Coustumières, (published de la liberté," p. 520.
at Paris in 1679) p. 2, cited by Mr. Barrington "On ne connoit point d'esclave en France, in bis Obs. on stat. 1 Rich. 2, where he has col. et quiconque a mis le pied dans ce royaume, est lected some curious particulars, relating to slagratifié de la liberté,' p. 525.
very. " Testator Benedictus, · servos, qui Tholo
M. Tribard, who pleaded against the pre* sam aufugerant, urbis ingressu ipso, liberos tensions of the negro, admitted and maintain"factos et cives,'” p. 527. " Les maximes si précieuses du droit Fran France, as a general role; but contended that
ed the proposition that there were no slaves in çois accordent à la seule entrée dans ce roy- the case of negroes, belonging to French West some, au seul air qu'on y respire, le droit de Indian colonists, was, by the edict of 1685, la liberté, le don de la franchise ; j'ai adopté ces maximes, je leur ai rendu tout Phommage, specifically excepted from its operation. qu'elles éxigent des cours vraiment Fran- “Si en France,” says be, “on ne connôit çois," p. 532.
point d'esclaves, si la seule arrivée dans ce "La France se fait gloire de communiquer royaume, procure la liberté, ce privilège cesse
à Pégard des esclaves négres François : quelle * Mr. Burke (Reflections on the Revolution en est la raison? C'est qu'en France, c'est in France, &c. 4th ed. p. 93) remarks, that " it que par une loi de la France mèine, les esclaves was in the most patient period of Roman ser- négres de nos colonies sont constitués dans un vitude that themes of tyrannicide made the or- esclarage nécessaire et autorisé," p. 529. dinary exercise of boys at school—' cùm pe- After noticing an · Arrêt' of the parliament rimit sævos classis numerosa tyrannos.'
.'" The of Toulouse, reported by Bodin, he proceeds, line is in Jurenal, Sat. 7, v. 151.
“Quel peut être l'effet, quelle peut étre l'inSommersett, in the said writ bereunto annexed the 10th day of March in the year of our Lord named, is a negro, and a native of Africa ; and
was a negro slave in Africa aforesaid, that the said James Sommersett, long before and afterwards, to wit, on the same day and the coming of the said writ to me, to wit, on year last aforesaid, being such negro slave, duction de cet arrêt, vis-à-vis d'un édit qui deux esclaves, pour les confirmer dans les instrucsiècles après, pour soutenir la splendeur d'un tions et dans les éxercices de notre religion, et état, les forces et la puissance de la nation, a pour leur faire apprendre quelque art et métier, établi une servitude nécessaire sur cette partie dont les colonies recevroient beaucoup d'utilité des sujets du roi ?" p. 531.
par le retour de ces esclaves; mais que ces Again“ Voilà donc la seule induction, uni- habitans craignent que les esclaves ne préten. quement par rapport aux étrangers, et aux dent être libres en arrivant en France, ce qui esclaves des étrangers,” p. 527.
pourroit causer aux dits habitans nne perte con* It must be confessed that the pleading of M. siderable, et les détourner d'un objet aussi pieux Tribard was not very convincing: Of the style et aussi utile;' and cogency of his argumentation the fol- " Le Roi ordonne que si quelques uns des lowing absurd false and despicable common habitans des colonies, ou des officiers employés places may suffice as samples: “Ceux qui dans l'état veulent amener avec eux des es. l'infortune de la guerre assujetissoit aux vain- claves négres de l'un ou de l'autre sexe, en quaqueurs furent appellés esclaves, servi, bien lité de domestiques ou autrement, pour les formoins à serviendo, qu'à servando," p. 514. titier dans la religion, &c. les propriétaires seront
“ Neque enim libertas tutior ulla est, quàm tepus d'en obtenir la permission des gouverodomino servire bono," p. 538.
eurs généraux ou commandans dans chaque Judgment was given for the Negro.
isle, laquelle permission contiendra le nom du
propriétaire, celui des esclaves, leur âge, et leur The Code Noir, as it was called, was an edict signalement. bearing date in March 1685, which was issued « Les propriétaires des dits esclaves seront by Lewis the 14th. It contains various regu. pareillement obligés de faire enregistrer ladite lations respecting the condition and treatment, permission au grefle de la jurisdiction du lieu the rights and duties of negro slaves, and freed de leur résidence avant leur départ, ei ep celui negroes, and of the French West Indian colo- de l'amirauté du lieu du débarquement, dans nies.* This . Code Noir'is cited in the plead. buitaine après leur arrivée en France." ings in the negro case reported in the Causes Célébres ;' but I do not perceive that it at all
The edict next proceeds to establish corres. concerns that particular case, except in so far pondent regulations for the case of negro slaves as it recognizes, and establishes the status of whom their owners shall send under the care slavery ; on wbich account indeed much re
of other persons from the colonies to France. liance was placed on it in tbe pleadings for the
It iben ordains that negroes so by their party who claimed to be owner of the negro.
owners bronght or sent into France shall not In October 1716, Lewis the 15th published by reason thereof acquire any right to their an edict, . concernant les esclaves negres des treedom, but shall be compeliable to return to colonies,' by which, after reciting, inter alia, vided however, that in case the owners have
the colonies at the will of their owners : it is pro“ comme nous avons été informés, que plusieurs habitans 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 tree, and the
owners shall lose all property in them.
The remainder of the edict does not affect * In Mr. Hargrave's Argument in the text, this edict is said to have been made in May
the case before us. 1685, but in the copy of the edict which is in- Mr. Baron Maseres (Historiæ Anglicante Seserted in the 13th volume of the “Causes Cé. lecta Monumenta, pp. 13, 381,) observes of a Jebres,” the date is twice mentioned to be March passage in the Encomium Emmæ that“ it plain1685. In that volume the edict bears the fol- ly sbews that there were at this time in Denmark lowing title, “ Le Code Noir ou Edit du Roi several men in a state of slavery, called in this servant de réglement pour le gouvernement et passage serti ; and others that were freed-men, l'administration de la justice et de police des Isles or that, after having been slaves, had been made Françoises de l'Amérique, et pour la discipline free, er sertis libcrli; and a third set of men et le commerce des négres et esclaves daus le who had always been free, but were not noble, dit pays.” In the preamble the objects of the and who are in this passage called ignobiles, edict are stated to be" y maintenir la disciplius and probably were the husbandmen and handyde l'église catholique, apostolique, et romaine, craftsmen of the country; and, lastly, a fourth et y régler ce qui concerne l'état et la qualité set, who were called 'noblemen, nobiles, and de nos esclaves dans nos dites isles." And ac- who seem to bave been the warriors, or milicordingly all its provisions relate to the concerns tary part of the people, and who must have of religion, of slaves, or of freed persons. ln been very numerous, since all the whole army the month of August, 1685, the king issued of Cabute the Dane, when be invaded England another edict for the establishment of courts after the death of king Swein, bis father, is of justice in St. Domingo,
said to bave been composed of men of this class,