It has sometimes been predicted, not without plausibility, that if
this great empire should sink before the rising genius of some new
state, when all it has accomplished in arts and arms, and its wealth,
its literature, its machinery, are forgotten, its struggles for
humanity in the abolition of negro slavery will stand forth in
undiminished lustre. All the steps of this mighty operation are
interesting. It is a peculiarity of England and its institutions, that
many of the most momentous constitutional conflicts have taken place
in the courts of law. In despotic countries, this seldom occurs,
because the rulers can bend the courts of law to their pleasure; but
here, even under the worst governments, whatever degree of freedom was
really warranted by law, could be secured by the courts of justice.
When it was said that the air of Britain was too pure for a slave to
breathe in--that his shackles fell off whenever he reached her happy
shore--the sentiment was noble; but the question depended entirely on
the law and its technical details. The trials resulting in a decision
against slavery, have thus much interest from the influence they
exercised on human progress.
There seemed to be every probability that the interesting question,
whether ownership in slaves continued after they had reached Britain,
would have been tried in Scotland. In the middle of last century, a Mr
Sheddan had brought home from Virginia a negro slave to be taught a
trade. He was baptised, and, learning his trade, began to acquire
notions of freedom and citizenship. When the master thought he had
been long enough in Scotland to suit his purpose, the negro was put on
board a vessel for Virginia. He got a friend, however, to present for
him a petition to the Court of Session. The professional report of the
case in _Morison's Dictionary of Decisions_ says: 'The Lords appointed
counsel for the negro, and ordered memorials, and afterwards a hearing
in presence, upon the respective claims of liberty and servitude by
the master and the negro; but during the hearing in presence, the
negro died, so the point was not determined.' In the English case, to
which we shall presently advert, it was maintained, that from the
known temper and opinions of the court, the decision, would
undoubtedly have been in the negro's favour. At the time when Mr
Grenville Sharp, to his immortal honour, took up in the courts of law
the question of personal liberty as a legal right, there was a more
serious risk of Britain becoming a slave state than it is now easy to
imagine. There was no chance of negroes being employed in gangs in the
field or in manufactories, but there was imminent danger of their
being brought over and kept in multitudes as domestic servants, just
as they are still in some of the southern states of America. Mr Sharp
drew attention to the following advertisement in the _Public
Advertiser_ of 28th March 1769, as one of a kind becoming too common:
'To be sold, a Black Girl, the property of J. B----, eleven years of
age, who is extremely handy, works at her needle tolerably, and speaks
English perfectly well; is of an excellent temper and willing
disposition.
'Inquire of Mr Owen, at the Angel Inn, behind St Clement's Church in
the Strand.'
Mr Sharp's early conflicts in the law-courts are more romantic than
the last and decisive one. He and his brother had found a poor
mendicant negro, called Jonathan Strong, in rags on the streets of
London. They took him into their service, and after he had become
plump, strong, and acquainted with his business, the man who had
brought him from the colonies, an attorney, seeing him behind a
carriage, set covetous eyes on him. The lad was waylaid on a false
message to a public-house, seized, and committed to the Compter,
where, however, he managed to make Mr Sharp acquainted with his
position. The indefatigable philanthropist had him brought before the
lord mayor as sitting magistrate. After hearing the case stated, his
lordship said: 'The lad had not stolen anything, and was not guilty of
any offence, and was therefore at liberty to go away.' A captain of a
vessel, saying he had been employed by a person who had just bought
the youth, to convey him to Jamaica, seized him by the arm as his
employer's property. A lawyer standing behind Mr Sharp, who seems to
have been puzzled how to proceed, whispered, 'Charge him.' Sharp
charged the captain with an assault, and as he would have been
immediately committed by the lord mayor if he persisted, he let go his
hold. The philanthropist was threatened with a prosecution for
abstraction of property, but it was abandoned.
This occurred in 1767. The next important case was that of a negro
named Lewis. He 'had formerly,' says Mr Sharp's biographer, 'been a
slave in possession of a Mr Stapylton, who now resided at Chelsea.
Stapylton, with the aid of two watermen, whom he had hired for that
purpose, in a dark night seized the person of Lewis, and, after a
struggle, dragged him on his back into the water, and thence into a
boat lying in the Thames, where, having first tied his legs, they
endeavoured to gag him by running a stick into his mouth; and then
rowing down to a ship bound for Jamaica, whose commander was
previously engaged in the wicked conspiracy, they put him on board, to
be sold as a slave on his arrival in the island.' The negro's cries,
however, were heard; the struggle was witnessed; and information given
in the quarter whence aid was most likely to come. Mr Sharp lost no
time in obtaining a writ of habeas corpus. The ship in the meantime
had sailed from Gravesend, but the officer with the writ was able to
board her in the Downs. There he saw the negro chained to the mast.
The captain was at first furious, and determined to resist; but he
knew the danger of deforcing an officer with, such a writ as a habeas
corpus, and found it necessary to yield. The writ came up before Lord
Mansfield. He did not go into the general question of slavery, for
there was an incidental point on which the case could be decided on
the side of humanity--the captain and the persons employing him could
not prove their property in the slave, supposing such property lawful.
He was not only liberated, but his captors were convicted of assault.
These cases, however, did not decide the wide question, whether it was
lawful to hold property in negroes in this country. It came at last to
be solemnly decided in 1771, on a habeas corpus in the King's Bench.
Affidavits having been made before Lord Mansfield, that a coloured
man, named Somerset, was confined in irons on board a vessel called
the _Ann and Mary_, bound for Jamaica, he granted a habeas corpus
against the captain, to compel him to give an account of his authority
for keeping the man in custody. Somerset had been a slave in Virginia,
the property of a Mr Stewart; and the captain of the vessel stated
that the owner had put him on board, to be conveyed to Jamaica, and
there sold. In what was called the return to the writ, the
justification for keeping Somerset in restraint was thus quaintly
stated:--'That at the time of bringing the said James Somerset from
Africa, and long before, there were, and from thence hitherto there
have been, and still are, great numbers of 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 plantations of Virginia and Jamaica, in America,
and other colonies and plantations belonging to his majesty in
America, for the necessary supplying of the foresaid colonies and
plantations with negro slaves.' It proceeded to relate with the same
verbosity, that the slaves so brought from Africa 'have been and are
saleable and sold as goods and chattels; and upon the sale thereof,
have become, and been, and are, the slaves and property of the
purchasers thereof.' It was stated that Mr Stewart, who resided in
Virginia, had Somerset as a domestic slave or valet--that having
business to transact in London, he took his usual attendant there,
intending to take him back to Virginia. Somerset, however, made his
escape; and when he was apprehended, his master, probably believing
that he would thenceforth be rather a troublesome valet, changed his
intention, and put the negro into the hands of the captain of a vessel
bound for Jamaica, that he might be sold there.
The pleadings upon the legality of this proceeding were solemn and
full. The question was, Whether it was to be held a just inference,
from the fact of the slave, being undoubtedly by the law of the day
property in the colonies, that, while his colonial master made a
temporary stay in Britain, he should be property there also, without
any direct law to that effect. Had it been a question of inanimate
goods, there would be no reason why the property should not continue
in the colonial owner. It would be all one to the inanimate object
what hands it was in, and regularity and justice would decree that the
person who was owner of it in one country should be so in another. But
in these cases there was a separate adverse interest of a very strong
character. Was the uniformity of this right of possession sufficient
to overrule another right--that which every man, black or white, had
to the freedom of his own person, unless there was special law to
restrain it? The counsel for the negro not only pleaded strongly on
this his personal right, but on the consequence to the moral condition
of the British Empire, if the inhabitants of slave countries could
bring their slaves hither. From the strictness of the laws, and the
uniformity of the course of justice, if slaves were permitted in
England, it was the very place where property in them would be most
secure. Thus the country might become a resort of slaveholders, and
its boasted purity and freedom would be sadly contaminated. 'If that
right,' said Mr Hargrave, 'is here recognised, 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.'
The counsel on the other side was the celebrated Mr Dunning,
afterwards Lord Ashburton, a friend of freedom, who seems to have
undertaken the cause on notions of professional duty, and without any
great inclination for it. His first words were: 'It is incumbent on me
to justify Captain Knowles's detainer of the negro.' He was careful to
shew, that he did not in the meantime maintain that there was an
absolute property in Somerset--it was sufficient to shew, that there
was a sufficient presumption of property to authorise the shipmaster
in detaining him until the absolute question of right was solemnly
settled. He proceeded to say: 'It is my misfortune to address an
audience, the greater part of which I fear are prejudiced the other
way. But wishes, I am well convinced, will never be allowed by your
lordships to enter into the determination of the point. This cause
must be what in fact and law it is. Its fate, I trust, therefore,
depends on fixed and variable rules, resulting by law from the nature
of the case. For myself, I would not be understood to intimate a wish
in favour of slavery by any means; nor, on the other side, to be
supposed the maintainer of an opinion contrary to my own judgment. I
am bound in duty to maintain those arguments which are most useful to
Captain Knowles, as far as is consistent with truth; and if his
conduct has been agreeable to the laws throughout, I am under a
further indispensable duty to support it.'
Much reference was made to the ancient laws of villenage, or
semi-slavery, in Britain. Mr Dunning maintained, that these were
testimony that a slave was not an utter anomaly in the country. The
class of villeins had disappeared, and the law regarding them was
abolished in the reign of Charles II. But he maintained, that there
was nothing in that circumstance to prohibit others from establishing
a claim upon separate grounds. He said: 'If the statute of Charles II.
ever be repealed, the law of villenage revives in its full force.' It
was stated that there were in Britain 15,000 negroes in the same
position with Somerset. They had come over as domestics during the
temporary sojourn of their owner-masters, intending to go back again.
Then it was observed, that many of the slaves were in ships or in
colonies which had not special laws for the support of slavery; and by
the disfranchisement of these, British subjects would lose many
millions' worth of property, which they believed themselves justly to
possess.
British justice, however, has held at all times the question of human
liberty to be superior to considerations of mere expediency. If the
question be, who gains or loses most, there never can be a doubt that
the man whose freedom has been reft from him has the greatest of all
claims for indulgence. Accordingly, Lord Mansfield, the presiding
judge, looking in the face all the threatened evils to property, held
that nothing but absolute law could trench on personal freedom. He
used on the occasion a Latin expression, to the effect that justice
must be done at whatever cost; it has found its way into use as a
classical expression, and as no one has been able to find it in any
Latin author, it is supposed to have been of Lord Mansfield's own
coining. 'Mr Stewart,' he said, 'advances no claims on contract; he
rests his whole demand on a right to the negro as slave, and mentions
the purpose of detainure of him to be the sending him over to be sold
in Jamaica. If the parties will have judgment, _fiat justitia ruat
coelum_--Let justice be done whatever be the consequence.' In finally
delivering judgment, he concluded in these simple but expressive
terms: 'The state of slavery is of such a nature, that it is incapable
of being introduced, on any reasons, moral or political, but only by
positive law, which preserves its force long after the reasons,
occasion, and time itself, for which it was created, are erased from
memory. It is so odious, that nothing can be suffered to support it
but positive law. Whatever inconveniences, therefore, may follow from
the decision, I cannot say this case is allowed or approved by the law
of England; and therefore the black must be discharged.'
A few years afterwards--in 1778--a case occurred in Scotland, where
the question of a master's rights over a negro slave in Britain was at
issue. The right claimed in this case, however, was not of so
offensive a nature. The master did not claim the power of seizing the
negro as his property. He maintained, however, that their mutual
position gave him a right to claim the negro's services, as if he had
engaged himself as a servant for life. Mr Wedderburn had bought in
Jamaica a negro named Knight, about twelve years old. He came to
Scotland as Mr Wedderburn's personal servant, married in the country,
and for some years seemed contented with his position. Probably at the
suggestion of some one who wished to try the question, as it had been
tried in England, Knight went off, avowing his intention of being
free. Mr Wedderburn applied to a justice of peace, who at once issued
a warrant for the negro's apprehension. The matter, however, came
before the sheriff, a professional judge, who decided that the
colonial laws of slavery do not extend to Scotland, and that personal
service for life is just another term for slavery. After a tedious
litigation, this view was affirmed by the Court of Session, and the
negro was declared free. The case acquired notice from the interest
taken in it by Dr Johnson, and the frequent mention of it in Boswell's
well-known work.