Imatges de pÓgina
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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,
and Mr. Hargrave's learned Argument were
inserted in the former edition of this Work.
I have here added the other Arguments, and
the Judgment of the Court, from Lofft's Re-
ports, in which is a Note of the Case under
the name of Sommersett against Stewart.
On the 3d of December 1771, affidavits were
made by Thomas Walklin, Elizabeth Cade,
and John Marlow, that James Sommersett, a
Begro, was confined in irons on board a ship

called the Ann and Mary, John Knowles commander, lying in the Thames, and bound for Jamaica; and lord Mansfield, on an application supported by these affidavits, allowed a writ of Habeas Corpus, directed to Mr. Knowles, and requiring him to return the body of Sommersett before his lordship, with the cause of detainer.

The very important matters which this" car involved, viz. first, The rights over the person of a negro resident here, claimed by another person as the owner of the negro; and, supposing such rights to exist, secondly, The extent of them; and thirdly, The means of inforcing them, were, I believe, never, except in this case, made the subject of a suit at law in England. But in Scotland two cases of this sort have occurred before the Court of

Session; 1, That of Sheddan against Sheddan, A. D. 1756; 2, That of Knight against Wedderburn, A. D. 1775-1778.

Of these two cases the following reports are printed from the Dictionary of Decisions,' tit. Stave,' vol. 33, pp. 14,545, et seq.: "Robert Sheddan against a Negro.-July 4,


Mr. Knowles on the 9th of December produced the body of Sommersett before lord Mansfield, and returned for cause of detainer, that Sommersett was the negro slave of Charles Steuart, esq. who had delivered Sommersett

"A Negro, who had been bought in 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.

"But, during the hearing in presence, the negro died; so the point was not determined." VOL. XX.

"Some time after, Mr. Wedderburn came with him, as a personal servant. over to Scotland, and brought this negro along

"The continued to serve him for sevenegro ral 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 warrant of the justices of peace. Knight, on his examination, acknowledged his purpose. The Vir-justices found the petitioner entitled to Knight's services, and that he must continue as before.'


Joseph Knight, a Negro, against John Wedderburo.-January 15, 1778.

trade, having imported a cargo of negroes into "The commander of a vessel, in the African Jamaica, sold Joseph Knight, one of them, as a slave, to Mr. Wedderburn. Knight was then a boy, seemingly about twelve or thirteen years of


Knight then applied to the sheriff of the county, (Perthshire), by petition, setting forth, That Mr. Wedderburn insisted on his continuing a personal servant with him,' and prayed the sheriff to find, That he cannot be continued in a state of slavery, or compelled to perpetual service; and to discharge Mr. Wedderburn from sending the petitioner ' abroad.'



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into Mr. Knowles's custody, in order to carry him to Jamaica, and there sell him as a slave. Affidavits were also made by Mr. Steuart and two other gentlemen, to prove that Mr. Steuart had purchased Sommersett as a slave in Vir

"After some procedure in this process, the sheriff found, That the state of slavery is not ' recognized by the laws of this kingdom, and is inconsistent with the principles thereof; that the regulations in Jamaica, concerning slaves, 'do not extend to this kingdom; and repelled the defender's claim to a perpetual service.' Mr. Wedderburn having reclaimed, the sheriff found,That perpetual service, without wages, is slavery; and therefore adhered.' "The defender removed the cause into the court by advocation. The lord ordinary took it to report, upon informations. Being a question of general importance, the Court ordered a hearing in presence, and afterwards informations of new, upon which it was advised.

"The property which, in Jamaica, was established in the master over the negro, under these statutes, and the municipal law there, cannot be lost by a mere change of place. On principles of equity, rights acquired under the laws of foreign countries are supported and inforced by the courts of law here." A right of property will be sustained in every country where the subject of it may come. The status of persons attend them wherever they go; Huber, lib. 1, t. 3, c. 12.

"The law of the colonies is not to be considered as unjust, in authorizing this coudition of slavery. The statutes which encourage the African trade show, that the legislature does not look on it in that light. The state of slavery is not contrary to the law of nations. Writers upon that law have enumerated several just and lawful origins of slavery; such as contract, conquest in a just war, and punishment of crimes. In cases where slavery is thorized by the laws of Jamaica, it must be presumed to have proceeded on a lawful origin, The municipal law of no country will be presumed unjust.

ginia, and had afterwards brought him into England, where he left his master's service; and that his refusing to return, was the occasion of his being carried on board Mr. Knowles's ship.

"Pleaded for the Master: That he had a right either to the perpetual service of the negro in this country, or to send him back to the plantations from which he was brought. His claim over the negro, to this extent, was argued on the following grounds:

"The productions of the colonies, ever since they were settled, have been cultivated by the means of negro slaves imported from the coast of Africa. The supplying the colo-tirely forfeited of his right. nies with these slaves has become an extensive trade; without which, the valuable objects of commerce, now furnished by the plantations, could not be cultivated. British statutes have given sanction to this trade, and recognized the property of the master in such slaves; 10th W. s, c. 26; 5th Geo. 2, c. 7; 23d Geo.

2, c. 3.

in all the ancient nations, and in all the modern European nations, for many ages. In some of them it still remains; and in none of them has it been abolished by positive enactments, declaring it unjust and illegal, but gone into disuse by degrees, in consequence of many different causes. Though, therefore, the municipal law of this country does not now admit of this state of slavery in the persons of citizens, yet, where foreigners, in that state, are brought into the country, the right of their masters over them ought not to be annihilated.

"In this case, the master is not insisting for the exercise of any rigorous powers. He only demands, that he shall be intitled to the personal services of the negro, in this country, during life. His right to this extent, at least, is not immoral or unjust; nor is it even reprobated by the municipal law of this country. A person may bind himself to a service for life; Ersk. Inst. b. 1, t. 7, § 62.

"But, in the last place, if this is denied, the master must, at least, be permitted to compel the negro to return to the plantations, from whence he was brought; otherwise he is in

"A state of slavery has been universally received in the practice of nations. It took place

"Some cases from the English law-books were adduced to show, that, in England, the master's right of property in his negro remains after he is brought into that country; Butts contra Penny, 1677; Keble's Rep. p. 3, p. 785. Gilly contra Cleves; 5th William and Mary, lord Raymond, Rep. 5, p. 147; and the opinion of two very eminent lawyers, in the year 1729, sir Philip Yorke, then attor ney-general, and Mr. Talbot, solicitor-general, in these words: We are of opinion, that a slave, by coming from the West-Indies, either with or without his master, to Great Britain or Ireland, doth not become free; and that his master's property or right in him is not thereby determined or varied; and baptism doth not bestow freedom on him, nor make any alteration in his temporal condition in these kingdoms. We are also of opinion, that the master may Tegally compel him to return to the plantations.'

"Answered for the Negro: The only title on which any right of dominion is claimed over this African, is the institution of the municipal law of Jamaica, which authorizes the slavery of Africans brought into that island. Under that law, this negro, a child when brought into Jamaica, while he remained there, was subau-jected to the unjust dominion which it gives over these foreigners; but the municipal law of the colonies has no authority in this country On grounds of equity, the Court, in some 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

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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 follow

return was read:

dern times have thought, that sugar ht be cultivated without the

refore, given by the

e pursuer, a foreigner can receive no aid from untry. The modification ain of slavery, makes no merits of the question. It is Ive the defender any right over de positive law of Jamaica must Sorted to; consequently, the quesWhether that law ought to be enyond its territory? But a service for out wages, is, in fact, slavery. The Scotland would not support a voluntary act in these terms; and, even where wages stipulated, such a contract has been voided the Court; Allan and Mearns contra Skene nd 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.

"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 cases were mentioned, in which different judges had expressed opinions, that a negro coming into England is free there; 1 Salk. Smith contra Brown and Cooper; Shanley contra Nalvey, in Chancery 1762; Hargrave's Arg. p. 58.

"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?

y which those who carried Dis own country got him into annot be known; because the ca makes no inquiry into that cir-666, But, whether he was ensnared, from his parents, the iniquity is the That a state of slavery has been adof in many nations, does not render it unjust. Child-murder, and other crimes deep dye, have been authorised by the ass of different states. Tyranny, and all Herts of oppression, might be vindicated on the the grounds.-Neither can the advantages procured to this country, by the slavery of the egroes, be hearkened to, as any argument in s question, as to the justice of it. Oppresand 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

"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

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