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REIGN OF KING GEORGE THE THIRD.
& THE Case of JAMES SOMMERSETT, a Negro, on a Habeas
ADDENDA to this Case ..........
COMMENCEMENT OF THE NEW SERIES.
aforesaid, A. D. 1775 ...........
A COMPLETE COLLECTION
548. The Case of James SOM MERSETT, 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 Ano and Mary, John Knowles com
and Mr. Hargrave's learned Argument were mander, lying in the Thames, and bound for inserted in the former edition of this work. | Jamaica; and lord Mansfield, op an application
supported by these affidavits, allowed a writ I have here added the other Arguments, and
of Habeas Corpus, directed to Mr. Knowles, the Judgment of the Court, from Lofft's Re- and requiring him 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 tbe 3d of December 1771, affidavits were duced the body of Sommersett before Iord 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 begre, was confined in irops on board a ship Steuart, esq. who had delivered Sommersett
The very important matters which this “ Joseph Knight, a Negro, against John Wedcer lavolved, viz. first, The rigbts over the
derburo.- January 15, 1778. person of a negro resident bere, claimed by
" The commander of a vessel, in the African and ber person as the owner of the negro;
trade, baving imported a cargo of negroes into and, supposing such rights to exist, secondly, I The extent of them; and thirdly, The means
Jamaica, sold Joseph Knight, one of them, as
a slave, to Mr. Wedderburn. Knight was of inforcing tbem, were, I believe, never, ex. | cept in this case, made the subject of a suit at
then a boy, seemingly about twelve or thirteen law in England. But in Scotland two cases
years of age.
" Some time after, Mr. Wedderburn came of this sort have occurred before the Court of
| over to Scotland, and brought this negro along Session ; 1, That of Sheddan against Sheddan, 1. D. 1756 ; 2, That of Knight against Wed
with bim, as a personal servant.
“ The negro continued to serve bim for sevederborn, A. D. 1775-1778. i
ral years, without murmuring, and married in Of these two cases the following reports are the country. But, afterwards, prompted to asproled from the Dictionary of Decisions,' tit. sert his 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 biin apprehended, on a war* Robert Sheddan against a Negro.-- July 4, rant of the justices of peace. Knight, on bis 1757,
examination, acknowledged his purpose. The "Á Negro, who had been bought in Vir- justice found the petitioner entitled to ginia, and brought to Britain to be taught a Kuight's services, and that he must continue trade, and who had been baptized in Britain, as before.' having claimed bis liberty, against his master “ Kuight then applied to the sheriff of the Robert Sheddan, who had put him on board a county, (Perthshire), by petition, setting forth, ship, to carry him back to Virginia, the Lords That Mr. Wedderburn insisted on bis conappointed counsel for the negro, and ordered tipuing a personal servant with bim,' and memorials, and afterwards a hearing in pre. prayed the sheriff to find, • That he cannot be knce, upon the respective claims of liberty continued in a state of slavery, or compelled and servitude by the master and the negro. lo perpetual service ; and to discharge Mr.
** But, during the bearing in presence, the Wellderburn from sending the petitioner Degro died; so the point was not determined." abroad.'
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. i England, where he left bis master's service; Affidavits were also made by Mr. Steuart 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 had purcbased Sommersett as a slave in Vir- ship.
" After some procedure in this process, the in all the ancient nations, and in all the modern sheriff found, "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 stiil remains; and io none of them . inconsistent with the principles thereof; that has 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 nse by degrees, in consequence of many diffe" the defender's claim to a perpetual service.' rent causes. Though, therefore, the municiMr. Wedderburp having reclaimed, the sheriff pal law of this country does not now admit of found, • That perpetual service, without lihis state of slavery in the persons of citizens, wages, is slavery; and therefore adhered.' yet, where foreigners, in that state, are brougbt
“ 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 pot to be annihilated. it to report, upon informations. Being a ques. “In ibis case, the master is not insisting for tion of general inportance, the Court ordered the exercise of any rigorous powers. He only a hearing in presence, and afterwards informa- demands, that lie sball be intitled to the persotions of new, upon which it was advised. nal services of the negro, in this country, dor
“ Pleaded for the Master: That he had a ing life. His right to 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. tbe 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, bave been cultivated the negro to return to the plantations, from by the means of negro slaves imported from whence he was brought; otherwise be is inthe coast of Africa. The supplying the colo- tirely forfeited of his right. nies 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 pegro 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; 230 Geo. and Mary, lord Raymond, Rep. 5, p. 147; 2, c. S.
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 ihe 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, rigbts acquired under the .eitber with or without his master, to Great laws of foreign countries are supported and · Britain or Ireland, doth not become free; and inforced by tbe courts of law here. A right of that his master's property or right in him is property will be sustained in every country not thereby deterinioed or varied ; aod bapwhere the subject of it may come. The status tism doth not bestow freedom on him, nor of persons attend tbem wherever 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 ibe colonies is not to be con- that the master may legally compel him to sidered as unjust, id authorizing this coudition 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 op 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 enomerated seve- of Africaos brought into tbat 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 ay. jected to the unjust domioion which it gives thorized by the laws of Jamaica, it must be pre- over these foreigners; but the municipal law guimed 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 coun" A state of slavery has been universally re- tries; but the law of Jamaica, in this instance, ceived in tbe 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 ibe determination of the court of King's. form of the returo to the Habeas Corpus. Acbench, Sommersett with sureties was bound in cordingly on that day Sommersett appeared in a recognizance for bis appearance there on the the court of King's-bench, and then the followSecoad day of the next Hilary term ; and his ing returu was read:
is repugoant 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 ve- slavery of negroes. cessary; but there are certain bounds, beyond " The dominion, therefore, given by the which, if any institution, subjectiug one indi-law of Jamaica over the pursuer, a foreigner ridual 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 country. The modification Such is the iostitution of slavery, depriving | proposed of this claiin of slavery, makes no mea of the most essential rights tbat attend difference on the merits of the questiou. It is their existence, and which are of a nature that 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. rolantary contract, cannot authorize the assum- tion recurs, Whether that law ought to be ening of these rights, or bigd 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 roluntary an undue adrantage taken, and is therefore contract in these terms; and, even where wages suficient 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- | Ulicitum. 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, withquires no title under any of these grounds. out his consent, ibat 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 indiscrimivately the condition of slavery. against this by the statute 1701, c. 6, which It is, therefore, a' slavery established on force expressly prohibits the carrying any persons and usurpation alone, which no writer on the out of the kingdom without their consent. las of nations has vindicated as a justifiable The words are general, and apply to all perongia of slavery.
sons within the realm. * If tbe 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, that formerly, by the laws of France, reduced by it to that state. Being a child negroes brought into that country from the when he was brougbt into Jamaica, he could plantations became free. This was their law, eater into no contract, commit no crime, and until lately, that, by special edicts, some alterconquest cannot give a rigbt to kill or enslave ations were made upon it; Denisart, tom. 3, children.
0. Negro. Oo 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 bim joto judges bad expressed opinions, that a negro their bands, cannot be known; because the coming into England is free there; 1 Salk. las of Jamaica makes no inqniry into that cir. 666, Smith contra Bruwn and Cooper; Shanley cumstance. But, wbether he was ensnared, contra Nalvey, in Chancery 1762 ; Harer bought from bis parents, the iniquity is the grave's Arg. p. 58. mme. That a state of slavery has been ad. I « But the late case of Sommersett, the nebitted of in many nations, does not render it gro, decided in tbe King's-beuch, in the year less upjast. Child-murder, and other crimes 1772, was chiefly relied on, and said to be in of a deep dye, have been autborised by the point; at least upon this question, Wherber laws of different states. Tyrandy, 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 grounds.- Neither can the advantages minion assumed over this vegro, under the law procured to this country, by the slavery of ibe of Jamaica, being unjust, could not be supagroes, 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 had no right to the bios apd iniquity are not palliated by the gain degro's service for any space of time, nor to and advantage acquired to the authors of them. send him out of the country against his conEat 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 undue delays in Trials,' more particularly