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not just at some major law library's obscure cases book department of which you were never taught even existed!
|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,
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.
||The Knight v Wedderburn Precedent||2
||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
||Origin of Slavery, and Its||27
||Decline of Slavery in Europe||33
||Revival of Domestic Slavery in America||34
||The Attempt to Introduce the Slavery||35
||Arguments to Prove That the Law of||35
||1. Argument from the Manner||35
||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
||3rd. Argument Against A New
Slavery From the Rules of Law
Against Slavery By Contract
||Examination of the Cases on the
Subject of Slavery Since or Just
Before the Extinction of Villenage
||Objections Likely to Be Made to the
Arguments Against the Present [Un]Lawfulness
of Slavery in England, Stated and Answered
||Stewart's Authority to Enforce His Right to
the Negro by Transporting Him Out of England
||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.
|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.
"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."
|is repugnant to the first principles of morality and justice.
|men of modern times have thought, that sugar and tobacco might be cultivated without the slavery of negroes.
|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.
|"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.
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
|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.
|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."
|"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  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.
|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.
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.
|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.
|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.
"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.
|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;"
|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  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,
|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 ."
|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."
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
|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
|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.
|Ed. Note: Not accurate, see our Unconstitutionality of Slavery Site.|
|'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.'|
|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.
|therefore this statute was repealed in two years afterwards.
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.
|throughout all the land, to all the inhabitants thereof.' Lev. xxv. 8—10.
|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."
|See H. B. Stowe, Key (1853), p 240, making the same point.|
"the record shall be sent before the justices in eyre, and the lord shall declare thereupon, and the villein shall make his defence and plead thereunto, and the villein shall not declare upon the writ de Libertate Probanda, nor shall any thing be done thereupon; for that writ is but a Supersedeas to surcease for the time, and to adjourn the record and the writ of Nativo Habendo, before the justices in eyre." Fitz. Nat. Br. 77, D.
|question of liberty cannot go to a jury for trial; though indeed the party making a false return is liable to an action for damages, and punishable by the Court for a contempt; and the Court will hear affidavits against the truth of the return, and if not satisfied with it restore the party to his liberty. Therefore, if to a Habeas Corpus villenage was returned as the cause of detainer, the person for whom the writ was sued at the utmost could only have obtained his liberty for the time, and could not have had a regular and final trial of the question.
In trespass the defendant pleads, that a manor, to which the plaintiff's father was a villein regardant, was given to an ancestor of the defendant in tail; and that the manor descended to Cecil and Catharine; and that on partition between them, the villein with some lands was allotted to Cecil, and the manor to Catharine; and then the defendant conveyed the villein from Cecil to himself as heir.
nett (Treatise on var. branch. of the Crim. Law of Scotland, chap. 17,) have cited several cases, and quoted other authorities, from which it appears that the rule was recognized to so late a period as the beginning of the 18th century. It is now abrogated (how or when I have not seen distinctly stated) "except" says Mr. [John] Burnett [1764-1810] "in the case of instrumentary witnesses, where women are in practice still excluded. I know of no case, however, where this point was ever argued, or received a decision: and it is doubtful whether such an objection would now be sustained."
'plures de proximis et consanguineis de eodem stipite unde ipse exierat exeuntes; per quorum libertates, si fuerint in curiâ recognitæ et probitæ, liberabitur à jugo servitutis qui ad libertatem proclamatur.'
|Ed. Note: See our data on unconstitutionality of U.S. slavery.|
|Ed. Note: It never allowed slavery.|
|Ed. Note: People cannot lawfully consent to self-harm.|
|"That in the 11th [year] of Elizabeth , one Cartwright brought a slave from Russia and would [attempted to] scourge [whip, assault] him; for which he was questioned [charged with assault]; and it was resolved, that England was too pure an air for a slave to breathe in [meaning, slavery isn't allowed]."|
|Ed. Note: No such laws existed, so could not be identified, "averred".|
''As soon as a man puts foot on English ground, he is free: a negro may maintain an action against his master for ill usage [reparations], and may have a Habeas Corpus, if restrained of his liberty''(z).
"He bought a monster [Ed. Note: person with birth defects] in the Indies, which was a man of that country, who had the shape of a child growing out of his breast as an excrescency all but his head. This man he brought hither, and exposed to the sight of the people for profit [circus-freak-style]. The Indian turns Christian and was baptized, and was detained from his master, who brought a Homine Replegiando. The sheriff returned [replied], that he had replevied the body [the man]; but doth not say the body in which sir Thomas claimed a property; whereupon he was ordered to amend his return [reply], and then the Court of Common-Pleas bailed him." 3 Mod. 120.It doth not appear that the return was ever argued, or that the Court gave any opinion on this case; and therefore nothing can be inferred from it.
|Ed. Note: Actually, slavery was NOT permitted in America; the actual words of the laws cited did NOT authorize slavery.|
|Ed. Note: Some heathens, ancients, were pro-slavery. To reject such heathen view and laws, the laws of the Judeo-Christian religion expressly rejected, banned, and punished enslaving.
See references including but not limited to those by Rev. John Rankin (1823), Rev. Theodore Weld (1837), Rev. Beriah Green (1839), Rev. John G. Fee (1851), and Rev. George B. Cheever (1857).
Deuteronomy 4:6-8 says this pro-freedom approach would contrast with the laws around, show the Divine Law System to be “righteous.”
|[Lord Mansfield.—Note the distinction in the case: in this case, [Lofft 7]France was not bound to judge by the municipal laws of Spain; nor was to take cognizance of the offences supposed against that law.]|
|[Lord Mansfield mentions an assertion, but does not recollect the author, that two only were in England in the time of Charles the 2d, at the time of the abolition of tenures.]|
|[Lord Mansfield observes, the case alluded to was upon a petition in Lincoln's Inn Hall after dinner; probably, therefore, might not, as he believes the contrary is not usual at that hour, be taken with much accuracy.]|