Somerset v Stewart, Lofft 1; 20 Howell's State Trials 1, 79-82; 98 Eng Rep 509 (King's Bench, June 1772)

Somerset v Stewart
Lofft 1-18; ; 11 Harg. State Trials 339;
20 Howell's State Trials 1, 79-82;
98 Eng Rep 499-510
(King's Bench, 22 June 1772)
Slavery derives from, is in the context of, and involves force, violence, assault, battery, extortion, detention. So, described that way, in its true nature, it is always illegal. The only reason people think 'slavery' is legal, is simply by their hearing, seeing, using, taking that one word, 'slavery,' out of that context.
Even out of context, under the "common law," since the English Magna Carta (1215), persons being detained have a right to know the charges. A person being detained, can force his being released by demanding to be informed of the charges; if not, release is instant. The process is called getting a writ of habeas corpus.
Slaves were being detained without charge. A habeas corpus case was filed, pursuant to English law allowing for a "writ of habeas corpus."
The case is James Sommerset v Charles Stewart. This site has the text of the legal papers, and court decision, by the "King's Bench," Lord Chief Justice Mansfield [1705-1793] presiding, in 1772, freeing the slaves, pursuant to the British Constitution.
For U.S. readers, the "King's Bench" may be deemed comparable to the U. S. Supreme Court.
That court, the King's Bench, ruled, saying it in modern words, that slavery was unconstitutional, meaning, not listed, not expressly provided for, not authorized in so many words, by a written enabling clause.
The Somerset precedent was to be followed in America "because the precedent had become part of American common law."—William M. Wiecek, "Somerset's Case," Encyclopedia of the American Constitution, Leonard W. Levy and Kenneth L. Karst, eds. (New York: Macmillan Reference USA, 2000), Vol 5, pp 2451-2452.
Unfortunately, the venerated "Founding Fathers" decided to react to that decision finding slavery unconstitutional, the same way that many Southerners reacted a couple centuries later, when the Supreme Court found segration unconstitutional (Brown v Board of Education, 347 US 483; 74 S Ct 686; 98 L Ed 873 [1954]). The "Founding Fathers" decided to rebel!
If the "Founding Fathers" and the American colonies had obeyed the Somerset decision, i.e., the Constitution, there would have been no more slavery, no more slaves! Any purported slaves would have been freed, and there would have been no Civil War. But the U.S. instead began a Revolution, so paid no heed to the then-known, but now little-known, decision. (Due to the U.S. South having disproportionate control and censorship of U.S. textbooks, you probably never were taught about this case, nor any other facts about slavery's unconstitutionality).
You can now get around and circumvent that textbook censorship policy thanks to the Internet. You can now view the decision and legal papers ("brief") in the case
right here and right now, or
at the Library of Congress website,

not just at some major law library's obscure cases book department of which you were never taught even existed!

The case was deemed so newsworthy and significant in the 1770's, that the legal argument was published by one of the lawyers, Francis Hargrave (1741-1821); and the decision was published by three different publishers, by Lofft starting on page 1; by Howell in the Howell's State Trials series, volume 20, starting on page 1 with the decision on pages 79-82; and by the English Reporter, volume 98, starting on page 509.
The version posted here is the fullest, from Howell's text. The other publishers reprinted only portions of the material. Howell's full text version (reprinted here) includes the legal briefs by the plaintiff and defendant, and historical data and context, not just the decision. In addition, instead of merely citing pertinent precedents' titles, Howell reprinted large portions, and the legal briefs in those cases also. This was in essence an encyclopedia of precedents and historical context, well beyond a normal case report such as the other publishers had done. The other publishers had provided less context, significant as here the decision was a mere three pages, at pp 79-82.
The pagination used here is Howell's. Page numbers from other publishers are inserted in brackets when available.
Wording style then is different than nowadays, examples,
using untranslated foreign words [see our homepage for links to translation services];
using huge footnotes of many pages [here with light blue background to distinguish from the main text];
saying "against" instead of "versus / vs" in case titles,
saying "defender" instead of "defendant,"
saying "pursuer" to refer to the slave,
using case titles differently in one place than another,
calling legal papers in the case 'Memorials' and 'Informations,' etc.
Where italics is used nowadays, but omitted then, italics has been inserted.
Although the original had no 'table of contents,' modern readers expect one, in a document of this length, so one has been inserted here, for your convenience.

Table of Contents
Introduction 1
The Knight v Wedderburn Precedent 2
The Slaver's Position
3
The Slave's Reply
4
Decision Summary by Publisher
6
Ship Captain Knowles' Affidavit 7
Wrongful Imprisonment/Speedy Trial Act of 1701 19
Argument of Mr. Francis Hargrave for the Negro 23
Short State of the Case 23
Points Which Arise in the Case 24
General Observations on Domestic Slavery 25
Difficulty of Defining 'Slavery' 25
Properties Usually Incident to Slavery 26
Bad Effects of Slavery 26
Opinions of Some Modern Writers
in Favour of the Utility of Slavery,
But Under Many Restrictions
27
Origin of Slavery, and Its
General Lawfulness Considered
27
Bible Principles 31
Decline of Slavery in Europe 33
Revival of Domestic Slavery in America 34
The Attempt to Introduce the Slavery
of Negroes into England Examined
35
Arguments to Prove That the Law of
England Will Not Admit A New Slavery
35
1. Argument from the Manner
of Making Title of a Villein
35
The Condition of a Villein
36
The Origin of Villeins
37
Decline of Villenage
37
When Villenage Expired
40
Manner of Making Title to a Villein Explained
41
How It Is That the Rules of Law Concerning
Villenage Exclude A New Slavery
48
2d. Argument Against a New Slavery from the Fact
of There Never Having Been Any Slavery But
Villenage, and from the Extinction of That Slavery 48
3rd. Argument Against A New
Slavery From the Rules of Law
Against Slavery By Contract 49
Examination of the Cases on the
Subject of Slavery Since or Just
Before the Extinction of Villenage 50
Objections Likely to Be Made to the
Arguments Against the Present [Un]Lawfulness
of Slavery in England, Stated and Answered 55
1. Why Ancient But Not Modern Slavery?
56
2. Asserting Oneself to be a Slave
56
3. Slavery Due to War
58
4. Allegedly Pro-Slavery English Laws
59
5. Ought to Use Lex Loci
60
6. Only Suspend the Severity
64
Stewart's Authority to Enforce His Right to
the Negro by Transporting Him Out of England 65
Hargrave's Conclusion 67
Arguments of the Other Counsel 67
Mr. Alleyne's Statement 67
Mr. Wallace's Statement 69
Dunning's Argument for Ship Captain Knowles 71
Serjeant Davy's Response 76
Preliminary Statement by Judge Mansfield 79
D E C I S I O N 80

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
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^*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 enforcing tbem, 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 [Ed. Note, judges] appointed counsel for the negro, and ordered memorials [Ed. Note, briefs], 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.

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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 [Ed. Note, person] 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 [Ed Note, claimed that] for cause of detainer, that Sommersett was the negro slave of Charles Stewart, esq. who had delivered Sommersett
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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 estate 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. Stewart and two other gentlemen, to prove that Mr. Stewart had purchased Sommersett as a slave in Vir-
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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 of 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 Slaver's Legal Brief
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 furuished 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

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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.
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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 entitled 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 be 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 Philip 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."

The Slave's Reply Brief
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

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Lord Mansfield chusing to refer the matter to the determination of the court of King's bench, Sommersett with sureties was bound in recognizance for his appearance tbere on the second day of the next Hilary term [Ed Note, court session]; and his
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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 circumstance, 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

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lordship allowed till that day for settling the form of the return [Ed. Note, Defendant's Answer] to the Habeas Corpus. Accordingly on that day Sommersett appeared in the court of King's-bench, and then the following return was read:
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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 Pactom lllicitum.
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?
"Tbe 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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Ship Captain Knowles' Affidavit
"I, John Knowles, commander of the vessel called the Ann and Mary in the writ hereunto annexed, do most humbly certify and return to our present most serene sovereign the king; that
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mentioned below] from being sent out of the country against his consent.—The judgments of the sheriff were approved of, and the Court remitted the cause simpliciter.

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I [Ed. Note, the case publisher] have been favoured with the use of six 'Memorials' or 'Informations' which in the course of these two litigations were delivered into the Court of Session. Five of them appear to have been prepared by men of very high eminence in their profession, one for Sheddan the negro by Sir David Dalrymple, afterwards a judge with the title of Lord Hailes; two for Knight the negro, by Mr. M'Laurin, afterwards lord Dreghorn, andMr. Maconochie, now Lord Meadowbank, and two for Wedderbarn (Knight's master), by Mr. Ferguson, afterwards Lord Pitfour, and Mr. Cullen, afterwards Lord Cullen, respectively; they display a copiousness and variety of curious learning, ingenious reasoning and acute argumentation, intimately connected with the case now before us.
With respect to 'Memorials' or 'Informations,' in causes depending in the Court of Session, and to the general course of proceeding in that court, see the Edinburgh Review for January 1807. For the alterations which in the year 1808 were made in the constitution of that court, see stat. 48 G. 3. c. 151.
Mr. [Daines] Barrington [1727-1800], in his Observations on stat. 1 Rich. 2, (note [y] in the third edition) mentioned that "many of the labourers in the salt-works and collieries in Scotland still continue "glebæ adscriptitii" and cannot be hired without the proprietor's consent." And as to this he referred to a case in the Dictionary of Decisions, vol. 1, p. 312. I know not what case that was. In Morison's Dictionary of Decisions there are under title Coalier twelve cases, in all of which the servile condition of the class is recognised.
In the Memorials which were presented in the case of Knight v. Wedderburn, the condition of the coalliers and salters of Scotland was considered. I will here insert what was said of it by Lord Meadowbank and Lord Pitfour.
"The defender," observed the first of those learned persons, "has mentioned the situation of coalliers and salters as an evidence, that the law of Scotland is not repugnant to slavery. It has been already shown, that although villenage still existed, although this high court would even now record an acknowledgment of villenage, and although other kinds of slavery were adopted by the laws of this country, yet that the common law could not be understood to favour the defender's claim. As long as the common law acknowledges the law of nature to be its great principal and rule, so long, must it reject a claim to a right of property in a man, or in his labour and industry, founded in his being born of a captive or a criminal, or in his"

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at the time herein after-mentioned of bringing the said James Sommersett from Africa, and long before, there were, and from thence hitherto there have been, and still are great numbers of
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"being seized on violently by a third person, and sold to the claimant. It has, however, been urged, that coalliers and salters are living proofs of the former prevalence of villenage; it is, therefore, not unnecessary to bestow a few observations on their situation; the use of pit-coal is of so late invention that villenage must, at any rate, have disappeared in Scotland long before the working of coal could have become a profession. Purchas (in vol. 3, p. 88, of his collection) giving an account of Marco Paolo's travels, has the following curious passage extracted from them:
'Throughout the whole province of Katai (China), certain black stones are digged out of the mountains, which, put into the fire, burn like wood, and being kindled, preserve fire a long time; as if they be kindled in the evening, they keep quick fire all the night; and many use those stones, because, that though they have store of wood yet there is such frequent use of stones and loathes thrice every week that the wood would not serve.'
The same observation is transcribed into the Histoire Générale de Voyages, tom. 9, p. 356. It was one of the circumstances, which, at the publication of Paolo's travels, was considered as a proof that they were fabulous.
There is a passage in Æneas Sylvius' (afterwards Pope Pius 2.) account of Europe, which shows more directly, that the use of pit-coal must have been very rare and very inconsiderable in his time even in Scotland. Treating of Scotland, he observes, that he was here (as a legate) in the time of Jacobus quadratus, and enquired about a miraculous tree, which had been said to grow in Scotland: He adds,
"De quâ re cùm audivimus investigaremus [so in orig.] didicimus miracula semper remotiùs fugere, fainosámque arborem non in Scotiâ, sed apud Orcades inveniri: Illud tamen in Scotiâ miraculum representatum est; nam pauperes penè nudos ad templa mendicantes acceptis lapidibus eleemosynæ gratiâ datis lætos abiisse conspeximus; id genus lapidis, sive sulphureâ sive aliâ pingui materià, pro ligno, quo regio nuda est, comburitur."
It is plain, from this account, that coals must have been very rare in Scotland. It otherwise would have been quite absurd to take notice of them only as used by beggars. Besides, he observes, that they were only used where the country was barren of wood; and it is well known, that Scotland was, during the reigns of the Jameses, very much covered with it; so there could be very little occasion for coals. On the other hand, as there are regular records extant, from the days of James 1, it is impossible that villenage could then have existed, without sufficient evidence concerning it appearing in the acts of parliament, charters, transfers of property, and various deeds among mdividuals, which are handed

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negro slaves in Africa; and that during all the time aforesaid there hath been, and still is a trade, carried on by his majesty's subjects, from Africa to his majesty's colonies or plan-
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down to us. It is therefore plain, that the profession of coalliers did not commence early enough to have received the remains of the ancint villeins. The circumstances of a coallier likewise indicate a very different origin.
"Coalliers are not born adscriptitii. A coal brewer is a profession which is voluntarily embraced, and, like other professions, is regulated by particular laws, which are more or less strict, according as the interest of the public is thought to require. The wages of a coallier, like those of labourers in any other profession, that is by its nature exclusive, are higher than common workmen receive. He acquires property, and transmits it; and has been found, by the case of Rutherglen, decided 20 February 1747, intitled, as well as any other subject, to be a counsellor of a burgh; he must, with equal reason, be capable of being elected a member of parliament. These particulars are sufficient evidence, that the condition of a coallier is perfectly different from that of a villein. The art of working coal successfully requires long practice to attain, and is prejudicial to the health of those who are not early accustomed to it. It was, therefore, extremely natural, when coal works were begun to be set on foot, that the proprietors should, in return for the high wages they gave the workmen, take them bound to continue in their service for a long term of years, or for life; accordingly we find, that it was at first customary to take such bonds from coalliers; and, it is known, tbat the practice continued after the intervention of parliament had superseded the necessity of it.
"These observations, the pursuer humbly apprehends, sufficiently explain any thing particular in the state of coalliers. In the infancy of improvement men are apt to adopt expedients for removing the obstructions it meets with, and other evils which they feel, but the nature and effectual remedies of which they do not comprehend. Thus incorporations and monopolies on the one hand, and on the other, restraints on the members of incorporations and of monopolists have originated. In the same way it was very natural to seek a curb for the indolence or capriciousness of coalliers, whose high wages, like those of many other kinds of workmen, disposed then to idleness, faction, or arrogance. All regulations, however, framed with such views, are evidently commercial, and never can be construed as either favouring liberty or slavery, any more than the act of navigation, or any other thing of the same nature. It might be proved, that an advocate was a slave on the same principle as a coallier. The acts 1537, c. 64, and 1587, c. 91, oblige an advocate to plead causes whether he chooses or not; if, in the one case, a client, and in the other, the court pleases to in-

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tations of Virginia and Jamaica in America, and other colonies and plantations belonging to his majesty in America, for the necessary supplying of the aforesaid colonies and plantations with
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sist on it: yet, it is not believed, tbat these statutes were ever urged as inductive of slavery. The same observations are in general so applicable to the state of salters, that it is unnecessary to consider it."
On the part of the defender it was argued by Mr. Ferguson (Lord Pitfour,) "There still exists in this country a species of perpetual servitude, probably the remains of the original adscriptitii glebæ, or villeins, which is supported by late statutes, and by daily practice, viz. That which takes place with regard to the coalliers and salters, where, from the single circumstance of entering to work after puberty, they are bound to perpetual service, and sold along with the works; and indeed, in our law, there are several other examples of persons being bound to servitude during their lives. The act of parliament 1597, cap. 272, enacts, 'That stark beggars and their bairns be employed in common works, and their service, mentioned in the act of parliament 1579, to be prorogate during their lifetimes.' And, without going further, it is the case with every soldier and sailor, the former of whom is shot, if be endeavours to make his escape at any period of his life, by express law; and the sailor is subjected, during the same space by a practice universally admitted, to be seized by force, and sent against his will to the remotest corners of the world.
"The pursuer is pleased to argue, that the coalliers and salters are not a remains of villenage; and his argument for this is, that the use of coal in Scotland is so late a discovery, tbat it must have taken place long after villenage disappeared: and to prove this, be cites a passage from Marco Paolo, and another from Æneas Sylvius; from which it would appear, that these authors had been unacquainted with that mineral, till the former saw it in China, and the latter in Scotland. And (the pursuer adds,) Æneas Sylvius observes, that coal was only used in Scotland where it was barren of wood; and as it is well known that, during the reign of the Jameses, Scotland was very much covered with wood, there could be very little occasion for coal.
"This circumstance seems to be little connected with the present question; but the pursuer's arguments appear to have no tendency to prove that the state of the coalliers in Scotland is not a continuation of the ancient villenage. By the charter above recited, that institution is traced down to the year 1368; and in all probability it continued a considerable time longer. Marco Paolo went to China about 100 years before that; so surely no inference can be drawn from the Italians being unacquainted with coal in the year 1270, tbat this mineral was not discovered in Scotland before the year 1368.

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negro slaves; and that negro slaves, brought in the course of the said trade from Africa to Virginia and Jamaica aforesaid, and the said other colonies and plantations in America, by
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"Æneas Sylvius [1405-1464] was in Scotland in James the 1st's time. The defender does not know if the pursuer means by the expression of Jacobus quadratus to insinuate that it was in James the 4th's time; but if he does so, it's a mistake, for Æneas Sylvius died pope in [1464] the 5th year of James 3, viz. 23 years before James 4 succeeded; and there is no doubt that his journey to Scotland was in James the Ist's time, probably about the year 1430. He then describes coal to have been in common use in Scotland; and it would appear very odd if there had been no coal-pits in Scotland 60 years before that, to which the charter above recited brings down the existence of villeins or nativi.
"The quotation therefore from Æneas Sylvius is a proof of the direct contrary of what the pursuer endeavours to infer from it.
"The circumstance of two Italians being surprised at seeing pit-coal affords no presumption that it had not been used for many centuries in Scotland. It happens every day, that Englishmen are not believed in that country, when they describe our coal to them even at present.
"The defender does not know what the pursuer means by asserting, that it is well known, Scotland was very much covered with wood during the reigns of the Jameses. As Æneas Sylvius, who was an eye-witness, declares, that in the time of James 1, it was perfectly bare of wood; and it is exceedingly probable, that the immemorial use of pit-coal before that period, had induced the inhabitants to cut down all the wood, without leaving or providing sufficiently for that kind of fuel.
"It is needless to enter, with the pursuer, into the disquisition, whether the state of coalliers be a severe kind of slavery or not; as it is certainly much more so than that to which the defender claims to reduce him."
It is perhaps worthy of notice in this place, that though the memorial of Mr. Maconochie (lord Meadowbank) bears date April 25, 1775, and that of Mr. Ferguson (lord Pitfour) bears date July 4, 1775, no notice is taken of the Statute 15 Geo. a, c. 28, by which after reciting that by the statute law of Scotland, as explained by the courts of law there, many coalliersand coal bearers, and salters, are in a state of slavery or bondage, bound to the collieries and salt works, where they work for life, transferable with the collieries and salt works, when their original masters have no farther use for them, it is enacted, that colliers, coal bearers, and salters, shall not be bound to any colliery or salt work, or to the owner thereof, in any way or manner diffterent from what is permitted by the law of Scotland, with regard to servants and labourers.
This statute, it appears, by the Lords' Jour-

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the [unconstitutional] laws of Virginia and Jamaica aforesaid and the said other colonies and plantations in America, during all the time aforesaid, have been, and are saleable and sold as goods and chattels,
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nal, was passed on the 23d day of May, 1775. After which, it seems (see Mr. Benet's account of Dudingston, in the 18th vol. of sir John Sinclair's Statistical Account of Scotland, p. 370., that the coal masters strove to insure the dependence of their coalliers, and consequently the perpetuity of their services, by seducing them into their debt: to remedy which, by stat. 39 Geo. 3, c. 56, among other provisions respecting colliers in Scotland, ii was enacted, 'That no action shall be competent for money advanced by, or on behalf of coal owners or lessees to colliers, except for support of their families in case of sickness,' in which case a specific mode of procedure is provided.
In the negro case in France, which, under the title of 'La Liberte reclamée par un négro contre son maitre qui I'a amen é en France,' is reported in the 13th vol. of 'Les Causes Célébres,' &c. p. 492, edit. of 1747, and which I apprehend was determined in the year 1738, or soon afterwards, the questions before the Court appear to have been,
1st, Whether the party claiming the negro was such a person, as, by the French king's [Louis XV] edict of October 1716, was permitted, under certain formally prescribed conditions, to bring negro slaves from the French West Indian colonies into France, and to retain them there: and
2dly, Whether he had performed those conditions; with respect to which it was provided in the edict, that, "faute par les, mâitres des esclaves d'observer les formalités préscrites par les précedéns articles, les dits esclaves seront libres, et ne pourront être reclamés."

For though M. le Clerc, Procureur du Roi, did indeed mention, that neither the edict of March 1685, nor that of October 1716, had been registered in the parliament of Paris, or transmitted to the proper officer of the court of admiralty, yet it very clearly appears, that he did not lay much stress on these topics.
But the eloquence of M. le Clerc and the other advocates who argued the case expatiated far beyond the narrow limits of the dry and uninteresting questions of mere positive law which I have stated. The powers of their learning and of their oratory were called forth in all their vigour, to describe the character and narrate the history of slavery, to display its incongruity with the benevolent doctrines of Christianity, and above all to impress upon their hearers, that slavery was utterly and irreconcilably opposite to the nature of France and of Frenchmen, and to the original priuciples and established administration of their constitution and government; insomuch, that to touch the soil or to inspire [breathe] the air of France was to be free. Throughout the arguments this last position not only was undisputed by either party, hut was by all parties either assumed, or admitted, as the incontrovertible as-

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and upon the sale thereof have become and been, and are the slaves and property of the purchases thereof, and have been, and are
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sertion of a notorious fact. Yet at the same time, it was on all sides propounded and inculcated, with a diligence and copiousness of repetition, which is not commonly expended upon the maintenance of indisputable truths.
I have extracted from the report the following passages, which, I believe, will sufficiently confirm what I have stated. They may also afford amusement, if not instruction, by exhibiting the complacency—perhaps I should rather say the triumph—with which, under the reign of Lewis the 15th [1715-1774], the descendants of the ancient Franks could rhapsodise concerning liberty:*
"Il s'est toujours regardé comme libre, depuis qu'il a mis le pied en France," p. 495.
"Dès qu'un esclave y" [sc. en France] "a mis le pied, il y acquiert la liberté," p. 504.
"Dès qu'un esclave est entré en France, il devient libre," p. 504.
"Il faut conclure que l'esclave est devenu libre, dès le premier instant de son arrivée en France," p. 508.
"L'entrée dans la ville de Paris assure le maintien, et devient l'asile, de la liberté—'Est' [sc. Lutetia] 'sacro-sancta civitas, quæ præbet omnibus libertatis atrium quoddam, asiliúmque immunitatis," pp. 511, 526.
"Je ne me propose point ici, de porter la moindre atteinte an plus précieux de nos bieus: je ne prétens point envier, ax 1'heureux climat que nous habitons, cette prérogative éminente, attachée à la seule entrée en ce royaume," [this phrase occurs again in p. 533.] "et qui forme le gage le plus assuré de la liberté, dont nous jouissons nous-mêmes," p. 512.
"Je se ne craindrai pas d'avouer avec tous les auteurs, qo'on ne connôit point d'esclave en France, et que si tôt qu'un esclave étranger a mis le pied sur notre continent, il est gratifié de la liberté," p. 520.
"On ne connôit point d'esclave en France, et quiconque a mis le pied dans ce royaume, est gratifié de la liberté," p. 525.
"Testatur Benedictus, 'servos, qui Tholosam aufugerant, urbis ingressu ipso, liberos 'factos et cives,'" p. 527.
"Les maximes si précieuses du droit François accordent à la seule entrée dans ce royaume, au seul air qu'on y respire, le droit de la liberté, le don de la franchise; j'ai adopté ces maximes, je leur ai rendu tout l'hommag'e, qu'elles exigent des coeurs vraiment François," p. 532.
"La France ce fait gloire de communiquer

*Mr. [Edmund] Burke [1729-1797] (Reflections on the Revolution in France, &c. 4th ed. p. 93) remarks, that "it was in the most patient period of Roman servitude that themes of tyrannicide made the ordinary exercise of boys at school—'cùm perimit sævos classis numerosa tyrannos.'" The line is in Juvenal [60-140 A.D.], Sat 7, v. 151.

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saleable and sold by the proprietors thereof as goods and chattels. And I do further certify and return to our said lord the king, that James
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le beau privilège d'affranchissement à tous les esclaves, lorsqu'ils entrent dans ce climat heureux, dont le seul nom répand de toute part la bonne odeur de la liberté," p. 539.
"Il n'est point d'esclave en France; nos constitutions, nos usages étendent la faveur de la liberté à tous les hommes en général qui l'habitent," p. 539.
"Il ne peut y avoir d'esclaves dans ce royaume, il suffit méme d'y etre etabli, ou d'y faire sa résidence, pour acquérir le bien précieux de la liberté," p. 544.
"Nos privilèges ont effacé jusqu'ax l'idée de l'esclavage en France," p. 546.
"Il n'y a en France aucuns esclaves; et la coutume y est telle, que non seulement les François, mais aussi les étrangers, prenant port en France, et criant France et Liberté, sont hors de la puissance de celui, qui la possédoit," p. 549.
"La France, mère de liberté, ne permet aucuns esclaves," p. 549.
"Les enclaves ont en France le privilège de se remettre en possession de leur liberté, au moment qu'ils sont entrés dans les terres de ce royaume," p. 551.
"De tems immémorial l^esclavage n'a point lieu en France, et l'esclave étranger devient libre, aussitôt qu'il y aborde," p. 551.
"Douter si en France un homme est libre, si un esclave acquiert sa liberté par son entrée en France, c'est attaquer I'autorité souveraine de nos rois, et faire injure à la nation," p. 498.
To these may be added the following more early authority:
"Toutes personnes sont franches en ce royaume, et sitost qu'un esclave a atteint les marches diceluy se faisant baptizer, il est affranchi." Institutes Coustumières, (published at Paris in 1679) p. 2, cited by Mr. [Daines] Barrington [1727-1800] in his Obs. on stat. 1 Rich. 2, where he has collected some curious particulars, relating to slavery.
M. Tribard, who pleaded against the pretensions of the negro, admitted and maintained the proposition that there were no slaves in France, as a general rule; but contended that the case of negroes, belonging to French West Indian colonists, was, by the edict of 1685, specifically excepted from its operation.
"Si en France," says he, "on ne connôit point d'esclaves, si la seule arrivée dans ce royaume, procure la liberté, ce privilège cesse à l'égard des esclaves négres François: quelle en est la raison? C'est qu'en France, c'est que par une loi de la France mème, les esclaves négres de nos colonies sont constitués dans un esclavage nécessaire et antorisé," p. 529.
After noticing an 'Arrêt' of the parliament of Toulouse, reported by [Jean] Bodin [1530-1596], he proceeds, "Quel peut être 1'effet, quelle pent étre l'in-

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Sommersett, in the said writ hereunto annexed named, is a negro, and a native of Africa; and that the said James Sommersett, long before the coming of the said writ to me, to wit, on
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duction de cet arrêt, vis-à-vis via d'un édit qui deux si ècles après, pour soutenir la splendeur d'un état, les forces et la puissance de la nation, a établi une servitude nécessaire sur cette partie des sujets du roi?" p. 531.
Again "Voilà done la seule induction, uniquement par rapport aux étrangers, et aux esclaves des étrangers," p. 597.
It must be confessed that the pleading of M. Tribard was not very convincing. Of the style and cogency of his argumentation the following absurd false and despicable common places may suffice as samples:
"Ceux qui l'infortune de la guerre assujetissoit aux vainqueurs furent appellés esclaves, servi, bien moins à serviendo, qu'à servando," p. 514.
"Neque enim libertas tutior ulla est, quàm domino servire bono," p. 538.
Judgment was given to the Negro.
The Code Noir, as it was called, was an edict bearing date in March 1685, which was issued by Lewis the 14th [1643-1715]. It contains various regulations respecting the condition and treatment, the rights and duties of negro slaves, and freed negroes, and of the French West Indian colonies.*
This 'Code Noir' is cited in the pleadings in the negro case reported in the 'Causes Célébres;' but I do not perceive that it at all concerns that particular case, except in so far as it recognizes, and establishes the status of slavery; on which account indeed much reliance was placed on it in the pleadings for the party who claimed to be owner of the negro.
In October 1716, Lewis the 15th [1715-1774] published an edict, 'concernant les esclaves négres des colonies,' by which, after reciting, inter alia, "comme nous avons été informés, que plusieurs habitans de nos isles de l'Amérique désirent envoyer en France quelques uns de leurs

*In Mr. Hargrave's Argument in the text, this edict is said to have been made in May 1685, but in the copy of the edict which is inserted in the 13th volume of the "Causes Célébres," the date is twice mentioned to be March 1685. In that volume the edict bears the following title,
"Le Code Noir ou Edit du Roi servant de réglement pour le gouvernement et l'administration dela justice et de police des Isles Françoises de l'Amerique, et pour la discipline et le commerce des négres et esclaves dans le dit pays."
In the preamble the objects of the edict are stated to be
"y maintenir la disciplins de I'église catholique, apostolique, et romaine, et y régler ce qui concerne 1'état et la qualité de nos esclaves dans nos dites isles."
And accordingly all its provisions relate to the concerns of religion, of slaves, or of freed persons. In the month of August, 1685, the king issued another edict for the establishment of courts of justice in St. Domingo.

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the 10th day of March in the year of our Lord _____ was a negro slave in Africa aforesaid, and afterwards, to wit, on the same day and year last aforesaid, being such negro slave,
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esclaves, pour les confirmer dans les instructions et dans les éxercices de notre religion, et pour leur faire apprendre quelque art et métier dont les colonies recevroient beaucoup d'utilité par le retour de ces esclaves; mais que ces habitans craignent que les esclaves ne prétendent être libres en arrivant en France, ce qui pourroit causer aux dits habitans une perte considérable, et les détourner d'un objet aussi pieur et aussi utile;"
"Le Roi ordonne que si quelques uns de habitans des colonies, ou des officiers employé dans l'état veulent amener avec eux des esclaves négres de l'un ou de l'autre sexe, en qualité de domestiques ou autrement, pour les fortifier dans la religion, &c. les propriétaires seront tenus d'en obtenir la permission des gouverneurs généraux ou commandans dans chaque isle, laquelle permission contiendra le nom du propriétaire, celui des esclaves, leur âge, et leur signalement.
"Les propriétaires des dits esclaves seront pareillement obligés de faire enregistrer ladit permission au greffe de la jurisdiction du lieu de leur résidence avant leur départ, et en cela de 1'amirauté du lieu du débarquement, dans huitaine après leur arrivée en France."
The edict next proceeds to establish correspondent regulations for the case of negro slaves whom their owners shall send under the care of other persons from the colonies to France.
It then ordains that negroes so by their owners brought or sent into France shall not by reason thereof acquire any right to their freedom, but shall be compellable to return to the colonies at the will of their owners: it is provided however, that in case the owners have neglected to comply with the prescribed regulations, the negroes shall become free, and the owners shall lose all property in them.
The remainder of the edict does not affect the case before us.
Mr. Baron Maseres (Historiæ Anglicanæ Selecta Monumenta, pp. 13, 381,) observes of a passage in the Encomium Emmæ that "it plainly shews that there were at this time in Denmark several men in a state of slavery, called in this passage servi; and others that were freed-men, or that, after having been slaves, had been made free, ex servis liberti; and a third set of men who had always been free, but were not noble, and who are in this passage called ignobiles, and probably were the husbandmen and handy-craftsmen of the country; and, lastly, a fourth set, who were called noblemen, nobiles, and who seem to have been the warriors, or military part of the people, and who must have been very numerous, since all the whole army of Canute the Dane [994-1035], when he invaded England after the death of king Swein, his father, is said to have been composed of men of this class,

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was brought in the course of the said trade as a negro slave from Africa aforesaid to Virginia aforesaid, to be there sold; and afterwards, to wit, on the 1st day of August in the year last
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omnes enim erant nobiles.' And the people of England were, probably, at this period distinguished into different classes of nearly the same kinds.
At least, it is certain, that, before the Norman Conquest [1066] as well as after it, the great body of the cottagers and handycraftsmen (such as blacksmiths, millers, and cart-wrights) in country villages were slaves, or what our old law books called 'villeins regardant,' or belonging to the manor, or servi adscriptitii glebæ, and were alienated, as such, by name, together with their families, and all the goods and chattels they were possessed of, by their lords or owners," and he has transcribed from Ingulphus a grant made by Thorold in the year 1051 to the abbey of Crowland of
"totum maneriam meum, &c. cum omnibus appendiciis suis; scilicet, Colgrinum præpositum meum, Item Hardingum fabrum, Item Lestanum carpentarium (and eleven others) et totas sequelas suas, cum omnibus bonis et catallis, quæ habent in dictà villâ, et in campis ejus, et in mariscis, absque ullo de omnibus retinemento."

As to Wales, [Henry] Rowlands [1655-1723], in recounting the observations respecting the "true state and condition of the British government," and of "the ancient British tenures, and the former customs and usages thereof," which he had collected from those materials of information, which "our own careless neglect had omitted, but, as a just reproach to our wretched oscitancy and remissness, the covetousness of our more watchful conquerors took care to record and preserve for us, that is the English monarchs, when they got themselves seised of the last remains of our British royalties, and found or made themselves intitled or interested by descent or conquest to the ancient revenues of our British princes," says (Mona Antiqua Restaurata, 4to, 2d edition, London 1766; the former edition was published in Dublin, in 1723, the year of the author's death:)
"We find, that the tenants of bond-lands and villanages, as they were of a quality below and inferior to freeholders, so they were obliged to greater drudgeries, and employed in more servile works, and were to be disposed of in many things, as their lords and princes pleased to use them. And of these some were free natives, and some pure natives. The free natives, I take to be those, who had some degree of freedom, who might go where they would, might buy and sell, and had many immunities; but the pure natives (as they were called) were the peculium of their proprietory lords or princes to be disposed of as they listed. And l remember to have met, in sir William Gruffyth's* book, with an abstract of a deed, where
*Rowlands, speaking of the old returns and verdicts which had been made by jurors to the king's commissioners of enquiry into tenures,

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aforesaid, the said James Sommersett, being and continuing such negro slave, was sold in Virginia aforesaid to one Charles Stewart, esq., who then was an inhabitant of Virginia afore-
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the natives of the township of Porthaethwy, many years after the time of the British princes, were sold as part of the estate of those lands they belonged to; and of which, and of others of that sort I have given elsewhere large instances. And I have by me a copy of injunction, issued out by Henry the seventh, king of England [1485-1509], commanding escheators, and all other ministerial officers, to see that the king's native tenants kept within their proper limits; and if any of them were found to stray and wander from their home, to drive them back, like beasts to their pinfolds, with the greatest severity."
And in a book intitled Beauties of England and Wales [London: J. Harris, (1812)], vol. xvii, by the Rev. J. [John] Evans, 8vo, 1812, I have met with the following passage:
"Among the boons bestowed upon the corporation of Beaumaris, so late even as the fourth year of Elizabeth's reign [c. 1562], the following grant appears: 'All and singular the king's lands, tenements, and hereditaments in Bodinew, and his villagers (cultivators) in the same town, if any be, with their offspring.' But this was probably no more than an exemplification of a grant, made long before, by way of confirmation.
"The following is one, out of three documents, adduced by Mr. Rowlands. 'Edynfed Vychan ap Edynfed, alias dictus Ednyfed ap Arthelw oz Davydd ap Gruffyd et Howel ap Davydd ap Ryryd, alias dictus Howel ap Arthelw uz Davydd ap Gryffydd, Liberi tenentes D'ni Regis villæ de Rhandei Gadog, &c. dedimus et confirmavimus Willimo ap Gryffydd ap Gwilim armigero et libero tenenti de Porthamel, &c. septem nativos nostros; viz. Howel ap Davydd Dew, Matto ap Davydd Dew, Jevan ap Evan Ddu, Llewelyn ap Davydd Dew, Davydd ap Matto ap Davydd Dew, Howel ap Matto ap Davydd Dew, et
&C. says (p. 120) "For what light we have from these records, we ought to be much obliged to the generous care and industry of that very worthy and deservedly celebrated person, sir William Gruffydd of Penryhon, knight and chamberlain of North Wales; who preserved these records from perishing, by collecting so many of them as he could retrieve from moth and corruption; and then causing those scattered rolls and fragments which he could meet with, to be fairly written by one Jenkyn Gwyn, in two large books of parchment, for the information of posterity. One whereof is that book, kept always in the Chamberlain's office, called by the name of the Extent of North Wales; and the other he transmitted into the Auditor's office at London, where it is preserved to this day [1812]."

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said; and that the said James Sommersett thereupon then and there became, and was the negro slave and property of the said Charles Stewart, and hath not at any time since been
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Llewelyn ap Evan Coke, cum eorum sequelis tàm procreatistàm procreandis æ omnibus bonis, catallis, &c. habend, &c. prædictos nativos nostros, &c. præfato Willimo Gruffyd ap Gwilim hæredibus et assignatis suis in perpetuum. Datum apud Rhandir Gadog, 20 die Junii, an. Henr. 6ti 27 mo. [Manuscript Hist. of Anglesea.]"
In a note to the 'Beauties, &c.' it is stated that "in the western parts of England, if some estates are sold or let, an usual condition is, to take all the apprentices upon them, male and female." This the writer denominates "an evident though laggering proof of persons being attached to the soil."
Wrongful Imprisonment/Speedy Trial Act of 1701
The whole of Mr. [John] Burnett's [1764-1810] sixteenth chapter (Treatise on the Criminal Law of Scotland [London and Edinburgh, 1811]) is a commentary, extending through seventy-one 4to pages, upon the 'Act' (already noticed) 'for preventing wrongous imprisonment, and against undue delays in trials' (chap. 6 of the eighth and ninth sessions of king William's parliament 1701). He says of it that it comprises (in some respects with greater security to the liberty of the subjects) the provisions of all the several statutes which the legislature of England has passed for the personal liberty of the subject, and that therefore it justly may be termed the Magna Charta of Scotland. And in the case of Andrew against Murdoch, the lord justice clerk, Hope (now, 1812, lord president) said "Our Act 1701 is greatly more favourable to the liberty of the subject in every respect than the Habeas Corpus Act of England."
Of a law thus celebrated, the provisions will naturally excite in the mind of every lover of his country a warmth of interested curiosity.
The enactments of this statute are numerous, extensive, and minute. The statute itself is therefore very long. I recollect not any account of it in Mr. Laing's History. Mr. Burnett exhibits a brief history of its origin, and analysis of its provisions; which I will substitute for the copiousness and particularity of the act itself.
"The Convention of Estates of Scotland, in the year 1689, declared, among other things, that, 'exacting exorbitant bail, and imprisoning persons without expressing the reason thereof, and delaying to put them to trial, are contrary to the known laws, statutes, and freedom of the realm,' and the redress of this they claimed as their undoubted right and privilege; and farther, 'that no declarations, doings or proceedings, to the prejudice of the people, in any of the said premises, ought in any ways to be decisive hereafter in consequence or example.' These grievances, in a subsequent letter to the king (1689, chap. 27.) the

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manumitted, enfranchised, set free, or discharged; and that the same James Sommersett, so being the negro slave and property of him the said Charles Stewart, and the said
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estates prayed his majesty to redress by wholesome laws in his first parliament.
"In the first parliament, accordingly, most of these grievances were redressed, and particularly, the exacting of exorbitant bail, imprisoning persons without expressing the cause, and delaying to put them to trial, by the well known statute 1701, cap. 6, which the people in this part of the united kingdom must view as one of the greatest benefits conferred on them by the Revolution, whether it be held as a law declaratory only of their former rights; or as introducing provisions in favour of the subject, which had not previously been either so well defined, or observed in practice.
"The objects indeed of this statute are of the first importance to the security and happiness of every individual of the community; inasmuch as the injury of unjust and illegal confinement, while it is often the most difficult to guard against, is in its nature the most oppressive and the most likely to be resorted to by an arbitrary government. Some have thought that unjust attacks, even upon life and property, at the arbitrary will of the magistrate, are less dangerous to the commonwealth than such as are made upon the personal liberty of the subject. Wthout accusation or trial to bereave a man of life, or by violence to confiscate his estate, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person by secretly hurrying to jail, where the sufferings of the party are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. (Blackst. Comm. book 1, chap. 1.)
"The statute proceeds accordingly on the preamble of the previous declaration by the Claim of Right, and the interest which all his majesty's subjects have, 'that the liberty of their persons be duly secured;' and contains in its enactment almost every provision, which has at any period, or almost in any system of law, been deemed most conducive to the personal liberty of the subject; at the same time it introduces regulations and exceptions, which, while they are the best calculated to ensure that object, render it nowise inconsistent with the safety of the public.
"It sets out by providing against the first steps towards an illegal confinement, the apprehending of the persons without a regular information and a special warrant, and guards against any confinement, that is not necessary to ensure the attendance of the party on the day of trial. In the next place it declares what crimes shall be bailable, and directs the speediest mode of finding bail; and to prevent the possibility of any vague discretion being

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Charles Stewart having occasion to transact certain affairs and business of him the said Charles Stewart in this kingdom, he the said Charles Stewart, 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 Stewart in this kingdom should be transacted;
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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 [date] 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 forever 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 39tb 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, A.D. 1798.

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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 Stewart 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 Stewart, to attend and serve him, during his stay aud 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 Stewart, when the said affairs and business of the said Charles Stewart should be transacted; which said affairs and business of the said Charles Stewart are not yet transacted, and the intention of the said Charles Stewart 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 Stewart 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 Stewart 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 Stewart, and without any lawful authority whatsoever, departed and absented himself from the service of the said Charles Stewart, and absolutely refused to return into the service of the said Charles Stewart, and serve the said Charles Stewart, during his stay and abiding in this kingdom, on the occasion aforesaid: whereupon the said Charles Stewart 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 Stewart; 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."
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After the reading of the return, Mr. Serjeant Davy, one of the counsel for Sommersett 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 [1772], and the recognizance for tbe 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 tbe same side. Afterwards Mr. Wallace and Mr. Dunning argued in support of the return, and Mr. Servant 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 [freed].
Argument of Mr. Francis Hargrave [1741-1821] 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.
Short State of the Case
The case before the Court, when expressed in few words, is this.
Mr. Stewart purchases a negro slave in Virginia, where by the law of the place negroes are slaves, and saleable as other property.
Ed. Note: Not accurate, see our Unconstitutionality of Slavery Site.

He comes into England, and brings the negro with him.
Here the negro leaves Mr. Stewart'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 tbe 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.

Tbe questions arising on this 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
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^*The following Argument, on the behalf of the negro, is not to be considered as a speech actually delivered: for though tbe 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.

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and important consequences; without extensive influence on private happiness and public security. The right claimed by Mr. Stewart in 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 recognized, 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 tbe 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.
In speaking on this case, I shall arrange my observations under two heads.
First, I shall consider the right, which Mr. Stewart claims in the person of the negro.
Secondly, I shall examine Mr. Stewart's authority to enforce that right, if he has any, by imprisonment of tbe negro and transporting him out of this kingdom.
The Court's opinion in favour of the negro, on either of these points, will entitle him to a discharge from the custody of Mr. Stewart.
(1st.) The first point, concerning Mr. Stewart's right in tbe person of the negro, is the great one, and that which, depending on a variety of considerations, requires tbe peculiar attention of the Court. Whatever Mr. Stewart'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. Stewart'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. Stewart's claim in terms less explicit, and to have 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 his 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. Stewart'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
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of facts to conceal the great extent of Mr. Stewart's claim, or any colouring of language to hide the odious features of slavery in the feigned relation of an ordinary servant.
General Observations on Domestic Slavery.
Before I enter upon the enquiry into present lawfulness of slavery in England, I think it necessary to make some general observations on slavery. I mean however always to keep in view slavery, not as it is in the relation of a subject to an absolute prince, but only as it is in the relation of the lowest species of servant to his master, in any state, whether free or otherwise in its form of government. Great confusion has ensued from discoursing on slavery, without due attention to the difference between the despotism of a sovereign over a whole people, and that of one subject over another. The former is foreign to the present case; and therefore when I am describing slavery, or observing upon it, I desire to be understood as confining myself to the latter; though from the connection between the two subjects, some of my observations may be applicable to both.
Difficulty of Defining 'Slavery'.
Slavery has been attended in different countries with circumstances so various, as to render it difficult to give a general description of it.
The Roman Lawyer^(a) calls slavery, a constitution [heathen creation] of the law of nations, by which one is made subject to another contrary to nature. But this, as has been often observed by the commentators, is mistaking the law, by which slavery is constituted, for slavery itself, the cause for the effect; though it must be confessed, that the latter part of the definition obscurely hints at the nature of slavery.
[Hugo] Grotius [1583-1645]^(b) describes slavery to be, an obligation to serve another for life, in consideration of being supplied with the bare necessaries of life.
Dr. [Thomas] Rutherforth [1712-1771]^(c) rejects this definition, as implying a right to direct only the labors of the slave, and not his other actions. He therefore, after defining despotism to be an alienable right to direct all the actions of another, from thence concludes, that perfect slavery is an obligation to be so directed. This last definition may serve to convey a general idea of slavery; but like that by Grotius, and many other definitions which I have seen, if understood strictly, will scarce suit any species of slavery, to which it is applied.
Besides, it omits one of slavery's severest and most usual incidents; the quality, by which it involves all the issue in the misfortune of the parent. In truth, as I have already hinted, the variety of forms, in which slavery appears, makes it almost impossible to convey a just notion of it in the way of definition. There are however certain properties, which have accompanied
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^(a) [Justinian,] Dig. lib. 1, tit. 5, i. 4, s. 1. 'Servitus est constitutio juris gentium, quà quis dominio alieno contra naturam subjicitur.'
^(b) Jur. Bell., lib. 2, c. 5, s. 27.
^(c)Inst. Nat. L. [Cambridge: J. Bentham, 1754], b. 1, c. 20, p. 474.

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slavery in most places; and by attending to these, we may always distinguish it, from the mild species of domestic service so common and well known in our own country. I shall shortly enumerate the most remarkable of those properties; particularly, such as characterize the species of slavery adopted in our American colonies, being that now under the consideration of this court. This I do, in order that a just conception may be formed, of the propriety with which I shall impute to slavery the most pernicious effects. Without such a previous explanation, the most solid objections to the permission of slavery will have the appearance of unmeaning, though specious, declamation.
Properties Usually Incident to Slavery.
Slavery always imports an obligation of perpetual service; an obligation, which only the consent of the master [Ed. Note: while slaves remain unaware of their rights] can dissolve.
—It generally gives to the master, an arbitrary power of administering every sort of correction, however inhuman, not immediately affecting the life or limb of the slave: sometimes even these are left exposed to the arbitrary will of the master; or they are protected by fines, and other slight punishments, too inconsiderable to restrain the master's inhumanity.
—It creates an incapacity of acquiring, except for the master's benefit.
—It allows the master to alienate the person of the slave, in the same manner as other property.
—Lastly, it descends from parent to child, with all its severe appendages.

—On the most accurate comparison, there will be found nothing exaggerated in this representation of slavery. The description agrees with almost every kind of slavery, formerly or now existing; except only that remnant of the ancient slavery, which still lingers in some parts of Europe, but qualified and moderated in favour of the slave by the humane provision of modern times.
Bad Effects of Slavery.
From this view of the condition [characteristics] of slavery, it will be easy to derive its destructive consequences.
—It corrupts the morals of the master, by freeing him from those restraints with respect to his slave, so necessary for control of the human passions, so beneficial in promoting the practice and confirming the habit of virtue.
—It is dangerous to the master; because his oppression excites implacable resentment and hatred in the slave, and the extreme misery of his condition continually prompts him to risk the gratification of them, and his situation daily furnishes the opportunity.
—To the slave it communicates all the afflictions of life, without leaving for him scarce any of its pleasures; and it depresses the excellence of his nature, by denying the ordinary means and motives of improvement.
—It is dangerous to the state, by its corruption of those citizens on whom its prosperity depends; and by admitting within it a multitude of persons, who being excluded from the common benefits of the constitution, are interested in scheming its destruction.
—Hence it is, that slavery, in whatever light we view it, may be deemed a most pernicious

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situation: immediately so, to the unhappy person who suffers under it;
finally so, to the master who triumphs in it, and
to the state which allows it.

Opinions of Some Modern Writers in Favour of
the Utility of Slavery, But Under Many Restrictions.
However, I must confess, that notwithstanding the force of the reasons against the allowance of domestic slavery, there are civilians [laymen] of great credit, who insist upon its utility; founding themselves chiefly, on the supposed increase of robbers and beggars in consequence of its disuse. This opinion is favoured by [Samuel von] Puffendorf [1632-1694]^(d) and Ulricus Huberus^(e).
In the dissertation on slavery prefixed to Potgiesserus on the German law 'de statu servorum,' the opinion is examined minutely and defended. To this opinion I oppose those ill consequences, which I have already represented as almost necessarily flowing from the permission of domestic slavery; the numerous testimonies against it, which are to be found in ancient and modern history; and the example of those European nations, which have suppressed tbe use of it, after the experience of many centuries and in the more improved state of society.
In justice also to the writers just mentioned I must add, that though they contend for the advantages of domestic slavery, they do not seem to improve of it, in the form and extent in which it has generally been received, but under limitations, which would certainty render it far more more tolerable.
Huberus in his Eunomia Romana [Amstelodami: 1724]^(f) has a remarkable passage, in which, after recommending a mild slavery, he cautiously distinguishes it from that cruel species, the subject of commerce between Africa and America. His words are,
'loquor de servitute, qualis apud civiliores populos in usa fuit; nec enim exempla barbarorum, vel quæ nunc ab Africa to Americam fiunt hominum commercia, velim mihi quisquam objiciat.'

Origin of Slavery, and Its General Lawfulness Considered.
The great origin of slavery is captivity in war, though sometimes it has commenced by contract. It has been a question much agitated, whether either of these foundations of slavery is consistent with natural justice. It would be engaging in too large a field of enquiry, to attempt reasoning on the general lawfulness of slavery. I trust too, that the liberty, for which I am contending, does not require such a disquisition; and am impatient to reach that part of my argument, in which I hope to prove slavery reprobated by the law of England as an inconvenient thing.
Here therefore I shall only refer to some of the most eminent writers, who have examined, how far slavery founded on captivity or contract is conformable to the law of nature, and shall just hint at the reasons, which influence their several opinions. The antient writers suppose the right of killing an
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^(d) Law of Nature and Nations [1672], b. 6, c. 3, s. 10.
^(e) Prælict. Jur. Civ. [Lips.: 1707], p 16.
^(f) See page 48.
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enemy vanquished in a just war; and thence infer the right of enslaving him. In this opinion, founded, as I presume, on the idea of punishing the enemy for his injustice, they are followed by
Albericus Gentilis^(g),
[Hugo] Grotius^(h),
Puffendorf⁽ⁱ⁾,
[Cornelius van] Bynkershoek [1673-1743]^(j), and
many others.

But in 'The Spirit of Laws'^(k), the right of killing is denied, except in case of absolute necessity and for self-preservation. However, where a country is conquered, the author seems to admit the conqueror's right of enslaving for a short time, that is, till the conquest is effectually secured.
Dr. Rutherforth,^(l) not satisfied with the right of killing a vanquished enemy, infers the right of enslaving him, from the conqueror's right to a reparation in damages for the expences of the war. I do not know, that this doctrine has been examined; but I must observe, that it seems only to warrant a temporary slavery, till reparation is obtained from the property or personal labour of the people conquered.
The lawfulness of slavery by contract is assented to by Grotius and Puffendorf^(m), who found themselves on the maintenance of the slave, which is the consideration moving from the master.
But a very great writer of our own country, who is now living, controverts⁽ⁿ⁾ the sufficiency of
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^(g) De Jur. Gent. cap. de servitute.
^(h) De Jur. Bell. l. 3, c. 7, s. 5.
⁽ⁱ⁾ Law of Nature and Nations, b. 6, c. 3, s. 6.
^(j)Quæst. Jur. Publ. l. 1, t. 3.
^(k) B. 15, c. 2.
^(l)See his Inst. Nat. Law, vol. 2, p. 573, and vol. 1, p. 481.
^(m) See Grot. Jur. Bell. i. 2, c. 5, s. 1, 2, and Puff. Law of Nature and Nations, b. 6, c. 3, s. 4.
⁽ⁿ⁾ See Blackst. Comment. 1st ed. vol. 1, p. 412.
The authority of Mr. Justice Blackstone having been cited both for and against the rights of persons claiming to be the owners of slaves in Great Britain, I have thought it worthwhile to insert together all that I find relating to the subject in his Commentaries:
"The spirit of liberty is so deeply implanted in our constitution, and rooted even in our very soil, that a slave or a negro, the moment he lands in England, falls under the protection of the laws, and so far becomes a freeman; though the master's right to his service may possibly still continue." Vol. 1, p. 127.
"I have formerly observed that pure and proper slavery does not, nay cannot, subsist in England; such I mean, whereby an absolute and unlimited power is given to the master over the life and fortune of the slave. And indeed it is repugnant to reason, and the principles of natural law, that such a state should subsist any where.
"The three origins of the right of slavery, assigned by Justinian, are all of them built upon false foundations. As, first, slavery is held to arise 'jure gentium,' from a state of captivity in war; whence slaves are called

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such a consideration. Mr. [John] Locke [1632-1704] has framed another kind of argument against slavery
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mascipia, quasi manu capti.' The conqueror, say the civilians [laymen], 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, secondarily, it is said that slavery may begin 'jure civilis; 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 inpossible. 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?
Later making this same point, were Virginia writer S. G. Tucker, Dissertation on Slavery (1796), p 22; and Rev. John G. Fee, Anti-Slavery Manual (1851), pp 14, 16, 22, 28, 35, 61, 66, 100, 112, and 119.

"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 [circa 1278], 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

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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⁽ⁿ⁾ 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 dispel of the slave's life at pleasure. But the mistortune 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 galley-
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therefore this statute was repealed in two years afterwards.
Ed. Note: See background by Edward C. Rogers.

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 time.
"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 between master and servant, on account of the alteration of [religious] 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.
In these passages, there appears to be somewhat of very subtle distinction, if not rather of contradiction.
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^(o) See Locke on Governm. 8vo edit. b. 2, c. 4, p. 213.
^(p) See his Inst. Nat. Law, vol. 1, p. 480.

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slaves are in France. Consequently this kind of slavery is not liable to the principal objections, which occur against sIavery in general ^(q). Upon the whole of this controversy concerning
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Bible Principles
^(q) Some writers there are, who deduce the lawfulness of domestic slavery from the [alleged] practice of it amongst the Jews, and from some passages in the Old Testament which are thought to countenance it. See Vinn. in Instit. Heinecc., ed. i. 1, t. 3, p. 31. There are others who attempt to justify slavery by the New Testament, because it [allegedly] contains no direct precepts against it. See Tayl. Elem. Civ. L. 434.—I shall not attempt to examine either of these opinions.—Hargrave.
Ed. Note: See writings by those
who did examine the matter, e.g.:
Rev. John Rankin (1823)
Rev. John G. Fee (1851)
Harriet B. Stowe (1853)
Edward C. Rogers (1855)
Rev. George Cheever (1857)

In the discussions respecting the African slave trade, which were maintained during several years preceding the abolition of that traffic (by stat. 46 Geo. 3, c. 52, see also c. 119. and 51 G. 3, c. 23), the authority of the scriptures was appealed to by the oppugners and defenders of the trade.
On June 24, 1806, the learned and eloquent Dr. [Samuel] Horsley [1733-1806], bishop of St. Asaph [1802-1806], delivered in the House of Lords upon the subject, a very powerful speech, from which I have extracted the following passages.
[Dr. Horsley's Speech on Hebrew Bible Anti-Slavery Principles]
"My rev. brother" (the bishop of London) "told your lordships, that perpetual slavery was not permitted by the Jewish law. That a native Jew could be held in slavery for seven years only, at the longest. For he had a right to his freedom upon the first return of the sabbatical year. And that a foreign slave purchased in the market, or captivated in [authorized-by-God] war, could be held in slavery for fifty years only, at the longest. For the foreign slave had a right to his freedom upon the first return of the year of Jubilee. And from these premises, my rev. brother concluded, that perpetual slavery was unknown among the Jews.
"I confess, I was carried away by the fair appearance of my rev. brother's arguments, till, to my great surprise and his utter confusion, the noble earl (of Westmoreland) rose, with bis Bible in his hand, and quoted chapter and verse against him!
"My lords, with respect to the native Hebrew slave, we have this law, which was quoted by my rev. brother: 'If thy brother, an Hebrew man or an Hebrew woman, be sold unto thee, and serve thee six years, then in the seventh thou shall let him go free from thee. And when thou sendest him out free from thee, thou shalt not let him go away empty. Thou shalt furnish him liberally out of thy flock, and out of thy flour, and out of thy wine-press. Of that wherewith the Lord thy God hath blessed thee, thou shalt give unto him.' Deut. xv. 12—14.
"And with respect to the foreign slave, we have this law, quoted likewise by my rev. brother: 'Thou shalt number unto thee seven sabbaths of years, forty and nine years. Then shalt thou cause the trumpet of the jubilee to sound throughout all the land. And ye shall hallow the fiftieth year, and proclaim liberty

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slavery, I think myself warranted in saying that the justice and lawfulness of every species of it, as it is generally constituted, except the limited one founded on the commission
____________
throughout all the land, to all the inhabitants thereof.' Lev. xxv. 8—10.
"The manumission of the Hebrew slave in the seventh year was provided for by the other law. Under the expression, therefore, of 'all the inhabitants,' foreign slaves must be comprehended; for none but foreign slaves could remain to be manumitted in the fiftieth year.
"My lords, there is a circumstance not touched upon by my rev. brother; but there is a passage in the law, which I have always considered, as a strong argument of the leniency with which slaves [employees] were treated among the Jews, and of the efficacy of the provisions the law had made, to obviate the wrongs and injuries to which the condition is obnoxious.—My lords, I am afraid I cannot, by memory, refer exactly to the place.
"But the noble earl there with his Bible, 1 am sure will have the goodness to help me out and turn up the passage for me. My lords, it is a passage, in which the law provides for the case, of a slave, who should be so attached to his master [employer], that when the term of manumission, fixed by the law, should arrive, the slave should be disinclined to take advantage of it, and wish to remain with his master.
"And the law prescribes the form, in such case to be used, by which the master and the slave should reciprocally bind themselves, the slave to remain with his master for life, and the master to maintain him. This I have always considered as a strong indication of the kindness, with which slaves were treated among the Jews; else whence should arise the attachment, which this law supposes?"
[Query if the bishop had in mind the beginning of the 21st chapter of Exodus, if so, the words are 'he shall serve him for ever.']
But we are all in the wrong, it seems—my rev. brother and I—we reason from specious premises, but to false conclusions. The noble earl has produced to your lordships a passage in the Levitical law, which enacts that the foreign slave should be the property of his master for ever. Whence the noble earl concludes that the perpetual servitude of foreign slaves was actually sanctioned by the law.
"But, my lords, I must tell the noble earl, and I must tell your lordships, that the noble earl has no understanding at all of the technical terms of the Jewish law. In all the laws relating to the transfer of property, the words 'for ever' signify only 'to the next jubilee.' That is the longest 'for ever' which the Jewish law knows with respect to property.
"And this law which makes the foreign slave the property of his master for ever, makes him no longer the master's property than to the next jubilee.
"And, with the great attention the noble earl has given to the laws and history of the Jews, he must know, that when they [the Jews] were carried into captivity, they were told by their prophets, that

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crimes against civil society, is at least doubtful; that if in any case lawful, such circumstances are necessary to make it so, as seldom concur, and therefore render a just commencement of it barely possible; and that the oppressive manner in which it has generally commenced, the cruel means necessary to enforce its continuance, and the mischiefs ensuing from the [assumed] permission of it, furnish very strong presumptions against its justice, and at all events evince the humanity and policy of those states in which the use of it is no longer tolerated.
But however reasonable it may be to doubt the justice of domestic slavery, however convinced we may be of its ill effects, it must be confessed, that the practice is antient, and has been almost universal. Its beginning may be dated from the remotest period, in which there are any traces of the history of mankind. It commenced in the barbarous state of society, and was retained, even when men were far advanced in [non-biblical] civilization. The nations of antiquity most famous for countenancing the system of domestic slavery were the Jews [Ed. Note: not true], the Greeks, the Romans, and the antient Germans^(r); amongst all of whom it prevailed, but in various degrees of severity.
By the antient [pagan] Germans it was continued in the countries they over-run [conquered]; and so was transmitted to the varous kingdoms and states, which arose in Europe out of the ruins of the Roman empire.
Decline of Slavery in Europe
At length however it [slavery] fell into decline in most parts of Europe; and amongst the various
____________
one of the crimes [sins] which drew down that judgment upon them, was their gross neglect and violation of these merciful laws respecting manumission. And that, in contempt and defiance of the [Bible anti-slavery] law, it had been their practice to hold their foreign slaves in servitude beyond the year of jubilee."
Ed. Note: This sin, setting up slavery, was noted and elaborated by
Rev. George Cheever, in God against Slavery, pp 72-81 (1857); and
Rev. John Rankin, Letters on American Slavery, pp 101-102 (1823).

"—————My lords, although we [supposedly] have no explicit prohibition of the slave trade in the New Testament, we have a most express reprobation of the trade in slaves, even in that milder form, in which it subsisted in ancient times.
Ed. Note: U.S. slavery was the worst in history; see details.

[We hve in the New Testament] Such a reprobation [condemnation] of it [the slave trade] as leaves no [Bible] believer at liberty to say, that the slave trade is not condemned by the gospel.
"The reverend prelate near me has cited the passage [l Tim. i, 9—10], in which St. Paul mentions 'menstealers' among the greatest miscreants. 'Men-stealers,' as we read in our English Bible. But the word in the original is "L`D"B@`4`J0l. !L`D"B@`4`J0l is literally a 'slave trader,' and no other word in the English language, but slave trader, precisely renders it. It was indeed the technical name for a slave trader in the Attic law."
Ed. Note: More details on the Greek term were cited by Rev. John Fee, Anti-Slavery Manual (1851), pp 115-119.
Dr. Horsly's speech was placed in historical context by Rev. William Goodell, Slavery and Anti-Slavery (1852), p 62.

^(r) It appears by Cæsar and Tacitus, that the ancient Germans had a kind of slaves before they emigrated from their own country. See Cæs. de Bell. Gall. lib 6, cap. 13, et Tac. de Mor. German, cap. 24, et 25, et Potgiess, de stat. servor. ap. Germ., lib. 1, cap. 1.

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causes, which contributed to this alteration, none were probably more effectual, than experience of the disadvantages of slavery; the difficulty of maintaining it; and a persuasion that the cruelty and oppression almost necessarily incident to it were irreconcilable with the pure morality of the Christian dispensation.
See H. B. Stowe, Key (1853), p 240, making the same point.

The history of its decline in Europe has been traced by many eminent writers, particularly
[Jean] Bodin [1530-1596]^(s),
Albericus Gentilis^(t),
Potgiesserus^(u),
Dr. [William] Robertson [1721-1793]^(w), and
Mr. [John] Millar [1735-1801]^(x).

It is sufficient here to say, that this great change began in Spain, according to Bodin, about the end of the eighth century [799 A.D.], and was become general before the middle of the fourteenth century [1350 A.D.].
Bartolus, the most famed commentator on the civil law in that period, represents slavery as in disuse, and the succeeding commentators hold much the same language. However, they must be understood with many restrictions and exceptions; and not to mean, that slavery was completely aud universally abolished in Europe. Some modern civilians [laymen], not sufficiently attending to this circumstance rather too hastily reprehend their predecessors for representing slavery as disused in Europe.
The truth is, that the ancient species of slavery by frequent emancipations became greatly diminished in extent; the remnant of it was considerably abated in severity; the disuse of the practice of enslaving captives taken in the wars between Christian powers assisted in preventing the future increase of domestic slavery; and in some countries of Europe, particularly England, a still more effectual method, which I shall explain hereafter, was thought of to perfect the suppression of it.
Revival of Domestic Slavery in America
Such was the expiring state of domestic slavery in Europe at the commencement of the sixteenth century, when the discovery of America and of the western and eastern coasts of Africa gave occasion to the introduction of a new species of slavery. It took its rise from the Portuguese, who, in order to supply the Spaniards with persons able to sustain the fatigue of cultivating their new possessions in America, particularly the islands, opened a trade between Africa and America for the sale of negro slaves. This disgraceful commerce in the human species is said to have begun in the year 1508, when the first importation of negro slaves was made into Hispaniola from the Portuguese settlements on the western coasts of Africa^(y).
In 1540 the emperor Charles the fifth [1519-1556] endeavoured to stop the progress of the negro slavery, by orders that all
____________
^(s)See his book De Republica [Paris: Apud Iacobum Du-Puys, 1586], cap. 5, "de imperio servili."
^(t)Jur. Gent. cap. "de servitute."
^(u)Jur. Germ. de statu servorum.
^(w)Life of the Emperor Charles the 5th, vol. 1 [London: W. Strahan, 1769].
^(x)Observations on the distinction of ranks in civil society [London: Richardson, 1771]. See also Tayl. Elem. Civ. L. 434 to 439 [Ed. Note: Full citation: John Taylor (1704-1766) Elements of the Civil Law (London: 1755)]
^(y)Ander. Hist. Comm. v. 1, p. 336.

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slaves in the American isles should be made free; and they were accordingly manumitted by Lagasca the governor of the country, on condition of continuing to labour for their masters. But this attempt proved unsuccessful, and on Lagasca's return to Spain domestic slavery revived and flourished as before^(x).
The expedient of having slaves for labour in America was not long peculiar to the Spaniards; being afterwards adopted by the other Europeans, as they acquired possessions there. In consequence of this general practice, negroes are become a very considerable article in the commerce between Africa and America; and domestic slavery has taken so deep a root in most of our own American colonies, as well as in those of other nations, that there is little probability of ever seeing it generally suppressed.
The Attempt to Introduce the Slavery
of Negroes into England Examined
Here I conclude my observations on domestic slavery in general. I have exhibited a view of its nature, of its bad tendency, of its origin, of the arguments for and against its justice, of its decline in Europe, and the introduction of a new slavery by the European nations into their American colonies.
I shall now examine the attempt to obtrude this new slavery into England. And here it will be material to observe, that if on the declension of slavery in this and other countries of Europe, where it is discountenanced, no means had been devised to obstruct the admission of a new slavery, it would have been vain and fruitless to have attempted superseding the ancient species. But I hope to prove, that our ancestors at least were not so short-sighted; and that long and uninterrupted usage has established rules, as effectual to prevent the revival of slavery, as their humanity was successful in once suppressing it.
Arguments to Prove That the Law of
England Will Not Admit A New Slavery
I shall endeavour to shew, that the law of England never recognized any species of domestic slavery, except the ancient one of villenage now expired, and has sufficiently provided against the introduction of a new slavery under the name of villenage^(a) or any other denomination whatever. This proposition I hope to demonstrate from the following considerations.
1. Argument from the Manner
of Making Title of a Villein
1. I apprehend, that this will appear to be the law of England from the manner of making title to a villein.
The only slavery our law-books take the least notice of is that of a villein; by whom was meant, not the mere tenant by villein services, who might be free in his person, but the villein in blood and tenure; and as the English
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^(x) See Bodin de Republic. [Paris: Apud Iacobum Du-Puys, 1586], lib. 1, c. 5.
^(a) Villenage is used to express sometimes the tenure of lands held by villein-services, and sometimes the personal bondage of the villein; but throughout this argument it is applied in the latter sense only.

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law has no provisions to regulate any other slavery, therefore no slavery can be lawful in England, except

Introduction	1
*The Knight* v Wedderburn Precedent**	2
The Slaver's Position	3
The Slave's Reply	4
Decision Summary by Publisher	6
Ship Captain Knowles' Affidavit	7
Wrongful Imprisonment/Speedy Trial Act of 1701	19
Argument of Mr. Francis Hargrave for the Negro	23
Short State of the Case	23
Points Which Arise in the Case	24
General Observations on Domestic Slavery	25
Difficulty of Defining 'Slavery'	25
Properties Usually Incident to Slavery	26
Bad Effects of Slavery	26
Opinions of Some Modern Writers in Favour of the Utility of Slavery, But Under Many Restrictions	27
Origin of Slavery, and Its General Lawfulness Considered	27
Bible Principles	31
Decline of Slavery in Europe	33
Revival of Domestic Slavery in America	34
The Attempt to Introduce the Slavery of Negroes into England Examined	35
Arguments to Prove That the Law of England Will Not Admit A New Slavery	35
1. Argument from the Manner of Making Title of a Villein	35
The Condition of a Villein	36
The Origin of Villeins	37
Decline of Villenage	37
When Villenage Expired	40
Manner of Making Title to a Villein Explained	41
How It Is That the Rules of Law Concerning Villenage Exclude A New Slavery	48
2d. Argument Against a New Slavery from the Fact of There Never Having Been Any Slavery But Villenage, and from the Extinction of That Slavery	48
3rd. Argument Against A New Slavery From the Rules of Law Against Slavery By Contract	49
Examination of the Cases on the Subject of Slavery Since or Just Before the Extinction of Villenage	50
Objections Likely to Be Made to the Arguments Against the Present [Un]Lawfulness of Slavery in England, Stated and Answered	55
1. Why Ancient But Not Modern Slavery?	56
2. Asserting Oneself to be a Slave	56
3. Slavery Due to War	58
4. Allegedly Pro-Slavery English Laws	59
5. Ought to Use Lex Loci	60
6. Only Suspend the Severity	64
Stewart's Authority to Enforce His Right to the Negro by Transporting Him Out of England	65
Hargrave's Conclusion	67
Arguments of the Other Counsel	67
Mr. Alleyne's Statement	67
Mr. Wallace's Statement	69
Dunning's Argument for Ship Captain Knowles	71
Serjeant Davy's Response	76
Preliminary Statement by Judge Mansfield	79
D E C I S I O N	80