| 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 Reports, 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 negro, 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 write of Habeas Corpus,
directed to Mr. Knowles, and requiring him to return
the body of Sommersett before his lordship, with the
cause of detainer.
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 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
Virginia, 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. Knowle's ship.
Lord Mansfield chusing
to refer the matter to the determination of the court
of King's-bench, Sommersett with sureties was bound
in a recognizance for his appearance there on the
second day of the next Hilary term; and his 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:... |
* The very
important matters which this case 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. 'Slave,' vol. 33,
pp. 14,545, et seq.:
"Robert
Sheddan against a Negro, - July 4,
1757.
"A Negro,
who had been bought in Virginia, 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.
"Joseph Knight, a Negro, against John
Wedderburn. - January 15, 1778.
"The
commander of a vessel, in the African trade, having
imported a cargo of negroes into 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 age.
"Some
time after, Mr. Wedderburn came over to Scotland, and
brought this negro along with him, as a personal servant.
"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 warrant of the justices of
peace. Knight, on his examination, acknowledged his
purpose. The justices found 'the petitioner entitled
to Knight's services, and that he must continue as before.'
"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.'
"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 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.
"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 colonies
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. 3,
c, 26; 5th Geo. 2, c. 7; 23d Geo. 2, c. 3.
"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 condition 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
authorized 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.
"A
state of slavery has been universally received in the
practice of nations. It took place 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 his 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 this last place, if this is denied, the master must,
at last, be permitted to compel the negro to return
to the plantations, from whence he was brought; otherwise
he is intirely forfeited of his right.
"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 Phillip
Yorke, then attorney-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 legally 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 subjected 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 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 circumstances,
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.
"The
means by which those who carried this child from his
own country got him into their hands, cannot be known;
because the law of Jamaica makes no inquiry into that
circumstance. 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. Oppression 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
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.
"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. 666,
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?
"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.... |
|
...enter their heads; they make slaves of whom they think
fit. For the air of England; I think, however, it has been
gradually purifying ever since the reign of Elizabeth. Mr.
Dunning seems to have discovered so much, as he finds it changes
a slave into a servant; though unhappily he does not think
it of efficacy enough to prevent that pestilent disease reviving,
the instant the poor man is obliged to quit (voluntarily quits,
and legally it seems we ought to say,) this happy country.
However, it has been asserted, and is now repeated by me,
this air is too pure for a slave to breathe in: I trust, I
shall not quit this court without certain conviction of the
truth of that assertion.
Lord Mansfield. -
The question is, if the owner had a right to detain the slave,
for the sending of him over to be sold in Jamaica. In five
or six cases of this nature, I have known it to be accommodated
by agreement between the parties: on its first coming before
me, I strongly recommended it here. But if the parties will
have it decided, we must give our opinion. Compassion will
not, on the one hand, nor inconvenience on the other, be to
decide; but the law: in which the difficulty will be principally
from the inconvenience on both sides. Contract for sale of
a slave is good here; the sale is a matter to which the law
properly and readily attaches, and will maintain the price
according to the agreement. But here the person of the slave
himself is immediately the object of enquiry; which makes
a very material difference. The now question is, Whether any
dominion, authority or coercion can be exercised in this country,
on a slave according to the American laws? The difficulty
of adopting the relation, without adopting it in all its consequences,
is indeed extreme; and yet, many of those consequences are
absolutely contrary to the municipal law of England. We have
no authority to regulate the conditions in which law shall
operate. On the other hand, should we think the coercive power
cannot be exercised: it is now about 50 years since the opinion
given by two of the greatest men of their own or any times,
(since which no contract has been brought to trial, between
the masters and slaves;) the service performed by the slaves
without wages, is a clear indication they did not think themselves
free by coming hither. The setting 14,000 or 15,000 men at
once loose by a solemn opinion, is very disagreeable in the
effects it threatens. There is a case in Hobart, (Coventry
and Woodfall,) where a man had contracted to go as a mariner:
but the now case will not come within that decision. Mr. Steuart
advances no claims on contract; he rests his whole demand
on a right to the negro as slave, and mentions the purpose
of detainure to be the sending of him over to be sold in Jamaica.
If the parties will have judgment, 'fiat justitia, ruat coelum;'
let justice be done whatever be the consequence. 50l.
a-head may not be a high price; then a loss follows to the
proprietors of above 700,000l. sterling. How would
the law stand with respect to their settlement; their wages?
How many actions for any slight coercion by the master? We
cannot in any of these points direct the law; the law must
rule us. In these particulars, it may be matter of weighty
consideration, what provisions are made or set by law. Mr.
Steuart may end the question, by discharging or giving freedom
to the negro. I did think at first to put the matter to a
more solemn way of argument: but if my brothers agree, there
seems no occasion. I do not imagine, after the point has been
discussed on both sides so extremely well, any new light could
be thrown on the subject. If the parties chuse to refer it
to the Common Pleas, they can give themselves that satisfaction
whenever they think fit. An application to parliament, if
the merchants think the question of great commercial concern,
is the best, and perhaps the only method of settling the point
for the future. The Court is greatly obliged to the gentlemen
of the bar who have spoke on the subject; and by whose care
and abilities so much has been effected, that the rule of
decision will be reduced to a very easy compass. I cannot
omit to express particular happiness in seeing young men,
just called to the bar, have been able so much to profit by
their reading. I think it is right the matter should stand
over; and if we are called on for a decision, proper notice
shall be given. |
Trinity Term, June 22, 1772. |
Lord Mansfield. - On the part of Sommersett, the
case which we gave notice should be decided this day, the
Court now proceeds to give its opinion. I shall recite the
return to the writ of Habeas Corpus, as the ground of our
determination; omitting only words of form. The captain of
the ship on board of which the negro was taken, makes his
return to the writ in terms signifying that there have been,
and still are, slaves to a great number in Africa; and that
the trade in them is authorized by the laws and opinions of
Virginia and Jamaica; that they are goods and chattels; and,
as such, saleable and sold. That James Sommersett is a negro
of Africa, and long before the return of the king's writ was
brought to be sold, and was sold to Charles Steuart, esq.
then in Jamaica, and has not been manumitted since; that Mr.
Steuart, having occasion to transact business, came over hither,
with an intention to return; and brought Sommersett to attend
and abide with him, and to carry him back as soon as the business
should be transacted. That such intention has been, and still
continues; and that the negro did remain till the time of
his departure in the service of his master Mr. Steuart, and
quitted it without his consent; and thereupon, before the
return of the king's writ, the said Charles Steuart did commit
the slave on board the Anne and Mary, to safe custody, to
be kept till he should set sail, and then to be taken with
him to Jamaica, and there sold as a slave. And this is the
cause why he, captain Knowles, who was then and now is, commander
of the above vessel, then and now lying in the river of Thames,
did the said negro, committed to his custody, detain; and
on which he now renders him to the orders of the Court. We
pay all due attention to the opinion of sir Philip Yorke,
and lord chancellor Talbot, whereby they pledged themselves
to the British planters, for all the legal consequences of
slaves coming over to this kingdom or being baptized, recognized
by lord Hardwicke, sitting as chancellor on the 19th of October,
1749, that trover would lie: that a notion had prevailed,
if a negro came over, or became a Christian, he was emancipated,
but no ground in law: that he and lord Talbot, when attorney
and solicitor-general, were of opinion, that no such claim
for freedom was valid; that though the statute of tenures
had abolished villeins regardant to a manor, yet he did not
conceive but that a man might still become a villein in gross,
by confessing himself such in open court. We are so well agreed,
that we think there is no occasion of having it argued (as
I intimated an intention at first,) before all the judges,
as is usual, for obvious reasons, on a return to Habeas Corpus.
The only question before us is, whether the cause on the return
is sufficient? If it is, the negro must be remanded; if it
is not, he must be discharged. Accordingly, the return states,
that the slave departed and refused to serve; whereupon he
was kept, to be sold abroad. So high an act of dominion must
be recognized by the law of the country where it is used.
The power of a master over his slave has been extremely different,
in different countries. The state of slavery is of such a
nature, that it is incapable of being introduced on any reasons,
moral or political, but only by positive law, which preserves
its force long after the reasons, occasion, and time itself
from whence it was created, is erased from memory. It is so
odious, that nothing can be suffered to support it, but positive
law. Whatever inconveniences, therefore, may follow from the
decision, I cannot say this case is allowed or approved by
the law of England; and therefore the black must be discharged. |
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