Document 590

Joseph Knight (extract 3)

Author(s): James Robertson

Copyright holder(s): Fourth Estate Publishers: With thanks to HarperCollins Publishers Ltd. © James Robertson 2003, James Robertson

There were two men among that mill of lawyers who seemed not wholly part of the proceedings, but without whom the lawyers would have been redundant. They seemed somehow removed from what was going on around them. They were seated at opposite ends of a long bench situated under the gallery on the advocates’ side of the Bar. Their counsel could sit with them to confer, then step forward to plead before their lordships. One of these men was an African, the only black man in the courtroom. He was wearing a plain, somewhat frayed suit of grey clothes. His feet, in cracked but polished boots, were planted firmly on the floor, slightly apart, but he rested his hands on his thighs almost delicately. He looked anxious and careworn, and though he did not move his head his eyes were constantly shifting, taking in everything before him. When the judges entered, he came to his feet swiftly, and remained standing until nearly everyone else had sat down again. This looked like the act of a man habituated to deference, but it might equally have been the behaviour of one who felt out of place but recognised that he was the focus of attention.

The other man seemed more relaxed. His face betrayed no emotion whatsoever. He was also plainly dressed, but his clothes were clearly of a better quality than those of Joseph Knight. John Wedderburn’s gaze wandered around the court, lingered on the Lord’s Prayer, took in some of the other features. Once he turned to look behind him, raising a hand to acknowledge the presence of a slightly younger, better-looking version of himself standing under the balcony: his brother James. Then he faced the front again. When their lordships had taken their seats, he resumed his as if they had all sat down to dinner together. He even nodded politely to the Lord President and Lord Elliock, who responded in the same manner.

The macer who had called the case looked up and paused, as if to allow anyone who had inadvertently come to court on the wrong day the opportunity to leave. Then he bowed to the President.

Lord Arniston checked his papers, cleared his throat. ‘Twa points, afore we stert. First, as this cause originated in Mr Knight’s petition tae the Sheriff of Perthshire against the findings of the justices of Perthshire, and his suit is against Mr Wedderburn no jist in respect o asserting his right tae liberty, but also in respect o seeking back-wages as a free man, he is designated pursuer, and Mr Wedderburn defender. I mak this point tae the court in order tae clarify the situation, as in ither respects it micht be thocht that Mr Wedderburn has been in pursuit o Mr Knight.’

There was a thin ripple of laughter around the room.

‘Secondly, this case has been ongoing for several years, and mony pages of memorials and informations hae been submitted tae the court. The informations hae been printed and dispersed amang us, and hae received oor due consideration. It is therefore unnecessary for coonsel tae repeat the exquisite detail nor tae quote chapter and verse o every reference gien in these documents, which I may say are o the highest quality and reflect weel on the diligence o baith sides. I would therefore urge coonsel for the pursuer and for the defender tae be as brief as the importance o these maitters allows.’ He reached down below the Bench and produced a large sand-glass, which he set beside him. ‘I do not say I shall call a halt to any speech which exceeds the play of this instrument, but gentlemen, please, dinna mak me turn it up ower mony times.’

Again, the advocates, and above them the members of the public in the gallery, showed their appreciation of the Lord President’s methods with some polite laughter. Arniston’s dislike of long-winded pleadings was well known, and in the eighteen years of his presidency he had been a stickler for completing business and preventing a backlog of cases building up. The sand-glass was the symbol of his determination.

Arniston turned to the men gathered alongside Joseph Knight. ‘Mr Maclaurin?’

Maclaurin gave a quick smile to Knight, rose, approached the Bar, and launched straight in. ‘My lords, this is a cause o the utmaist significance and I crave therefore your patient attention. The pairties concerned in it are, in effect, representatives o twa different races, and we submit that the ootcome o this case will affect no jist these individual men, but the future relations between thae races. This isna simply a maitter o property, whitever the defender may claim, but gangs deep intae the foundations o law and morality. It is for these reasons that I prefixed tae the information the motto "Quamvis ille niger quamvis tu candidus esses", the import o which I dinna need tae explain tae your lordships, but which for the benefit o them no acquent wi Latin I translate, “As black as he is, so should you be white” – meaning, of course, fair, impartial, candid.’

‘Very guid, Mr Maclaurin, very apposite,’ Arniston said. ‘But hardly necessary tae tell us oor business.’

The nasal voice of Lord Kames issued from further along the Bench. ‘Perhaps ye should also tell them that dinna ken that it’s frae Virgil, or they’ll be awa hame thinkin ye made it up yoursel.’

‘Thank you, my lord,’ Maclaurin, looking suitably humble. He pressed on: ‘I should say as weel that the present contest between Great Britain and her colonies in America has also raised in the public eye the haill question o the institution o slavery. Therefore, the decision o a supreme court such as this may hae some tendency either tae retard or accelerate its fall. This is why the arguments in oor written pleadings hae been so extensive. It is impossible tae treat o this cause within narrow bounds. But we will endeavour tae tak up nae mair o the court’s time than is absolutely necessary, and tae this end I intend tae speak only tae the main points contained in oor informations and syne sit doun tae let my colleagues Mr Maconochie and the Lord Advocate speak on oor behalf.’

Before Maclaurin could continue the Lord President was wagging a finger at him. ‘Now, now, Mr Maclaurin, that is the Lord Advocate sittin doun there afore ye, but then again it isna. This isna the Crown’s cause and he disna hae his public hat on. That is Mr Dundas.’

Maclaurin dipped his head in acknowledgment.

‘I jist thocht I’d point that oot,’ Arniston said to his half-brother.

Henry Dundas half stood – ‘Much obleeged, my lord’ – and sat down again.

‘My lords,’ Maclaurin said, ‘the pursuer was cairried aff frae the coast o Guinea by a Captain Knight when a mere child perhaps eleiven or twal years o age, and was sellt tae the defender Mr Wedderburn in Jamaica, wha used him no in the field, but as a servant in his hoose. When Mr Wedderburn quit Jamaica aboot nine year syne, and returned tae this country, he brocht the pursuer wi him. Frae that time on, he gied him an allowance o sixpence a week in pocket money.

‘Here in Scotland the pursuer learned tae read and write, and was instructed in the principles o the Christian faith. He was baptised under the name Joseph Knight, though I must remind your lordships that this name, like everything else in his present circumstances, isna his by choice, but as a consequence o his haein been abducted frae his parents and his country at a very early age.’

‘Whitiver the bitch micht hae been cried afore, that wouldna hae been his choice either,’ Lord Kames observed to no one in particular. Maclaurin was well used to this kind of interruption from the Bench. He pressed on.

‘In 1773 the pursuer was mairrit on a lassie that had been a maid in Mr Wedderburn’s hoose, although she was by then removed tae Dundee. They had a child, and Joseph Knight, finding his sixpence-a-week pocket money quite inadequate tae support his faimly, applied tae Mr Wedderburn for a cottage on the estate, or ordinary wages, so that he could live as normal a life as ony ither free man. These requests were rejected and the pursuer declared his intention o finding work elsewhere.

‘It was at this point that Mr Wedderburn applied tae the Justices o the Peace o Perthshire tae prevent his taking aff in this mainner, on the grounds that he had aye treated him kindly and furnished him wi claes, bed, board and pocket money, and that in consequence o haein acquired him legitimately in Jamaica he had the richt tae detain him in perpetuity in his service for life. The justices, all, let it be said, guid freens o Mr Wedderburn’s and some wi their ain interests in the plantations, upheld his petition and the pursuer was arrested and returned tae him.’

Cullen, who had been becoming restless, coughed loudly and stood up. ‘If there is any substance in that remark aboot the justices, my lords, we should like to hear it spoke out plain.’

‘Mr Maclaurin?’ the President asked. ‘Whit did ye mean?’

‘I meant naething in particular, my lord. I jist thocht I’d point it oot. The relationship, that is.’

Cullen had not sat down. ‘That will not do, sir. If you have some reason to think that Sir John –’

‘That will do, Mr Cullen,’ said Arniston. ‘Address the Bench if ye please. Mr Maclaurin, I must warn ye. This is a civil case, and naebody is on trial. The Perthshire justices arena on trial for their decision, ony mair than the Sheriff is when ye come tae his decision.’

‘I was jist coming tae him,’ Maclaurin said. ‘I apologise.’

‘Guid. And Mr Cullen, the case before us is between a Mr Knight and a Mr Wedderburn, however your client is kent by common usage. Nae offence, of course, ah…’ Arniston, looking directly at Wedderburn but unable to address him without seeming to contradict himself one way or the other, left the sentence unfinished. He swung back towards Maclaurin. ‘Continue, sir.’

‘Mr Knight remained in Mr Wedderburn’s service a while langer, but his situation was intolerable – his wife and child were in Dundee and he had nae opportunity tae see them let alane provide for them. So he saved up his sixpences and petitioned the Sheriff o Perthshire, and he, tae his everlasting fame, found that the state o slavery is not recognised by the laws o this kingdom, and that the laws o Jamaica do not extend tae this kingdom. It’s true Mr Swinton – I beg pardon, the Sheriff – rejected the pursuer’s claim o wages, since, of course, nae wages had been agreed, but equally, and crucially, my lords, he found that perpetual service withoot wages is slavery and therefore unlawful in Scotland. Whereupon Mr Wedderburn took the cause tae this court, where it was heard first by Lord Kennet, who then made avizandum tae the haill Fifteen, and memorials and informations were prepared and printed, which ye hae before ye, and here we are at last tae see it brocht tae a conclusion. That, my lords, is a summary o how we hae got frae Guinea tae here.’

He paused, and Monboddo, half-twisting in his chair to speak to Arniston, said, ‘As this is likely to get complicated, may we hear now from the defender whether what we have heard is a fair representation of the story thus far?’

The Lord President, glancing along the Bench, received a few nods, and addressed Robert Cullen. ‘Ony comments, Mr Cullen?’ Then, with a thin, sour smile: ‘Ye’ll ken aw aboot whit constitutes a fair representation.’

Cullen rose again, ignoring the goad. ‘My lords, the facts are pretty much as stated. But one can paint facts to give them a – I will not say false – an unnatural gloss, and I should like to correct one or two misleading impressions.’

‘Misleading impressions?’ Arniston hooted. ‘I hae warned ye aboot them afore noo, sir.’

There were a few chuckles. Cullen smiled at the Lord President as upon a wayward child, then continued. ‘First, my lords, it is most unjust to place the burden of the whole slave trade, and the institution of slavery itself, upon the shoulders of Mr Wedderburn, who is after all only one man defending his property rights. Whatever one’s view of slavery, one cannot blame Mr Wedderburn for its existence, nor load this case with responsibility for its continuance or fall. Secondly, my worthy friend was very careful in the way he described the pursuer’s circumstances since he came to Scotland with his master. We heard that he acquired education and religion, and that he lived in a perfectly comfortable manner. I should like to remind the court that these things did not occur by chance. They all stemmed from the generosity and humanity of Mr Wedderburn. Thirdly, the order of events by which the pursuer’s personal circumstances altered were not quite as we have heard. He deviated a little from the Christian path in which he had been instructed by getting the girl he later married with child, and it is ever to the credit of his master that he not only allowed this girl to lie in childbed at Ballindean, but paid the doctor’s bills and even the expenses of the funeral when the child died. It was only after the girl was better that she was dismissed from the household and returned to Dundee, where she and the pursuer continued their secret liaisons, and in time produced a second child. I make no further comment on the insinuations concerning the justices of Perthshire, except that, given these examples of Mr Wedderburn’s humanity and reasonableness, it should I think count for rather than against them that they are friends to him. Thank you, my lords.’

Cullen bowed, turned and repeated the gesture towards Knight’s counsel, and sat down. John Maclaurin returned to the Bar.

‘Noo, my lords, let us look a little further intae this cause. The defender, Mr Wedderburn, has been at pains in aw his written submissions tae the court, tae emphasise his kindness and generosity tae the pursuer. We will leave aside, for the moment, whether these words can ever be applied tae a relationship founded upon ae man’s absolute power ower anither. But we note that he seeks frae the court no jist the richt tae the pursuer’s service in perpetuity, but also the richt tae send or cairry him back tae Jamaica if he should choose it. He insists that he has nae intention o daein that, but, as he acquired him legitimately there, he must be entitled tae return him there. Whit, though, would be the purpose o assertin that richt, were it no tae exercise it? My lords, if Mr Knight behaved in Jamaica as he has done here, that is if he claimed his freedom and acted upon that claim, he would be subjected tae the maist horrific punishments for desertion. Are we tae believe that if he were sent tae that island, it would be for his security and happiness and the guid o his soul?

‘Furthermore, the defender’s memorial contradicts itsel at various points. He maintains at ane point that he never mistreated Mr Knight but kept him for a personal servant, but at anither that by bringin him tae Scotland he saved him frae hard labour in the sugar fields, “by which”, I quote, “he would probably have expired”. That single sentence, my lords, tells us mair aboot the plantations than we could ever wish tae ken. Can we dout that though Mr Knight’s situation here became intolerable frae his lack o wages and freedom, it would be still mair intolerable were Mr Wedderburn tae hae the richt tae send him tae Jamaica – a country, I remind ye again, whaur he never wished tae be in the first place.

‘Noo, as tae the expense o the pursuer’s education, it is true that he got some learnin frae a schoolmaister in the defender’s employ. But that schoolmaister is employed tae teach Mr Wedderburn’s ain children in ony case. As tae ither expenses, I dinna think hauf a guinea paid tae a barber in Dundee tae gie him some notion o dressin hair can be coonted as excessive largesse.’

This scored a round of laughter not only in the public gallery but on the Bench. Joseph Knight smiled briefly. John Wedderburn did not.

‘My lords, I winna dwell on the slave trade, as the written arguments already before ye prove ayont aw dout the cruel, immoral and un-Christian nature o that species o commerce. But it is relevant tae oor cause, insofar as Mr Wedderburn maintains that he got Joseph Knight legally and fairly, and that therefore the rights o property he exercised ower him in Jamaica should apply equally here. We must ask, whit proof is there, even if we accept the legitimacy of ae man buyin and sellin anither, that this transaction was legal and fair? The defender bocht the pursuer, he tells us, frae a Captain Knight. Where is the bill o sale? How much did he pay? Mair important, whit richt had this Captain Knight tae sell the boy? He either kidnapped or purchased him frae the coast o Guinea, syne transported him across the sea. By whit law either o nature or o nations does this mak oor client a chattel tae be bocht and sellt? That, my lords, is something ye must reject as ootrageous.

‘It will be argued, nae dout, that the laws o African nations, as wi ancient nations, permit and justify the practice o slavery. Yet slavery is only ever, can only ever be maintained through violence. Let it be a custom for generations, the present generation that is enslaved willna accept it unless they are forced by violence tae accept it. And if proof is needed that it is a criminal raither than a lawful practice, I need only quote the testimony o my colleague Mr Maconochie’s servant, himsel an African and formerly a slave, that was included in oor submissions. He remembers perfectly being taen up when a child at play and pit in a poke, and in it cairried on board ship. The abduction o bairns, my lords, is nae basis for ony legitimate system o society.

‘It is true that in Jamaica, accordin tae the laws there, the pursuer was the defender’s property. But should the law o Jamaica hae ony effect here in Britain? We say no, baith because it is repugnant tae the first principles o justice and morality, and because, even if it can be excused or justified there on grounds o expediency or necessity, nae such grounds can possibly be justified here.

‘We hae seen in the defender’s informations aw species o arguments raised aboot the historical legitimacy o slavery; that in aw ages it has been customary for men and women tae be made slaves through military conquest, as punishment for wrang-daein, or through a contract entered intae by themsels. But Joseph Knight was a mere boy o eleiven when he was taen: he couldna hae been a sodger and therefore couldna hae been, in ony true sense, a prisoner-o-war; nor, being sae young, could he hae committed sae heinous a crime as tae forfeit his freedom in perpetuity; nor was he auld enough tae enter intae a contract tae sell himsel. And again, if it is said that slavery is a way o life in mony pairts o Africa, and that parents aften sell their ain bairns intae slavery, can we say that this child must therefore lose his liberty for life? Surely it is the parents that are guilty o a terrible crime against their young, and likewise guilty is the man that buys him. My lords, if Mr Wedderburn has legal right tae the pursuer in Jamaica, he got it through a trade that has nae regard for ony rights whitsoever, and he must lose it whenever he sets foot in a civilised country.

‘The fact is, legitimacy disna enter intae it. If it did, how could ony society that was baith legal and moral tolerate a system that cairries a hundred thoosand Africans a year frae their hameland, kills upward o thirty thoosand o these either in the passage or in whit they cry the seasoning, and by overwork, barbarous punishment and neglect kills maist o the rest in a further sixteen years? There is but one thing that maks a slave a slave in the plantations: his colour. A Negro is a slave because he is black. The only legal question then is, tae whom does he belang? For the laws dinna protect him in ony way, no in his person, his liberty or his life. Like the slaves amang the Romans, the Negroes are not considered as persons but things, though these things can hae bairns that also become the property o them that owns the parents. I wouldna wish tae cause embarrassment tae the pursuer in this venerable place, but I would ask your lordships tae look upon him, and ask yoursels, is this a man or a thing?

‘But there are ither arguments used by the apologisers for slavery which we must also refute. It is said that the cruelties we hear aboot in the colonies are much exaggerated, that it canna be true that slaves are ill-used there, because it is against the interest o the proprietors tae maltreat them. Weel, my lords, ye micht as weel say that a fermer in this country never overcrops his land or overworks his beasts, because it is against his interest. But we ken that the passions o men aften counteract their interest, and that these things occur. In the case o the planters, their passion and their interest are baith the same: it is tae mak as muckle money as they can in as short as possible a time, and that requires them tae work their slaves hard, and feed them ill, because that is the way tae mak the maist o them.’ Maclaurin cast a rapid but direct glance at Wedderburn. ‘And syne when they are rich they come hame tae enjoy the fruits o their slaves’ labours.

‘It is further said that the climate in the colonies, and the culture o sugar, tobacco and so forth renders it absolutely necessary tae employ Negroes, as we puir white people dinna hae constitutions strang enough for the required labours. But this isna true. Slaves are worked where ploos micht mair usefully be employed, and white people, if taken care of, are nae mair unfit for such work than Negroes. The fact is, Negroes are not taken care of, because it appears tae be cheaper tae work them like beasts, kill them like beasts, and replace them wi mair o the same. But mony sensible thinkers, such as Mr Adam Smith, argue that this is false economy; that the wear and tear o slaves falls entirely on the maister, and that it is exacerbated by the practices o cruel or careless overseers. A free man labours for wages, and maintains himsel in order tae be able tae work. A slave has nae incentive tae work but the scourge, which when it is used injures him and prevents him frae workin, and nae maitter whether he works hard or little his reward is the same – naething.

‘My lords, I dinna intend tae rehearse the arguments aboot whether a person coming frae ane country intae anither can expect tae be governed and protected by the laws o the country he left, raither than the laws o the ane he is in. That is aw before ye in the papers. But I will say this: the law o Jamaica never afforded ony protection tae Joseph Knight. He wasna born under that law; he never lived there but against his will; he never received ony benefit frae that law. Mr Wedderburn may find it convenient tae respect Jamaican law, and ask us tae respect it; but why should Mr Knight care a docken for it?’

Arniston’s fingers were stretching towards the sand-glass. Maclaurin, noticing, began to wind up.

‘My lords, my learned friend Mr Dundas will summarise some mair general points, maistly wi regaird tae the law here in Scotland. I will finish noo by askin ye tae consider the intellectual and moral climate in which we find oorsels in this year o 1778. This isna Jamaica, but Scotland. We submit that, leavin aside aw the niceties o written law, whether there or here, there is a natural law frae which stem oor first principles o morality and justice, and that that natural law finds slavery utterly repugnant. The herts o aw men that hivna been corrupted by money or hardened by bad habits must bear witness against it. In this age and this nation some o the finest minds the world has seen hae devoted themsels tae the science and study o man, and examined thae twa principles that seem tae guide us through oor lives: self-interest on the ae hand, and benevolence towards oor fellows on the tither. True happiness and virtue consist in findin a proper balance between the twa. He that acts frae self-love alane acts as if man were intended for solitude, whereas nature, as oor best philosophers and thinkers hae demonstrated – and some o them are sittin afore me as I speak, my lords – whereas nature meant him for society. When we dae guid tae ithers, we feel pleasure. When we dae evil, we feel pain and guilt and we ken that evil is whit we hae done. I trust that the common law o Scotland will be found tae act and exist for the cause o guid, no evil.

‘If your lordships’ judgment be pronounced for the pursuer, he and his faimly will rank wi the inhabitants o this fortunate island. We dinna hae the natural advantages that Africa enjoys, and Africa we canna restore tae him, but in ither respects this is a better, happier place tae be than maist o the rest o the world, and for that he may tak comfort, though he must ever regret his haein bein torn, when a child, frae his parents and native land. If judgment shall be pronounced against him, he, and his faimly, must either be reduced tae a state o bondage and misery in this country, or be transported tae whence he last came, and atone there for the valiant effort he has made tae assert his liberty here. I canna think so badly o my country, and its law, that it would so treat a man. But as I said at the ootset, my lords, this isna jist aboot twa men, but aboot twa races. The supreme court o Scotland has it in its power tae strike a blow for the liberty and dignity no jist o Joseph Knight, but for aw his countrymen.’

Maclaurin stood for a few seconds, gangling and awkward yet strangely impressive, staring at the Bench as if daring them to disgrace their country. This, he knew, was a crucial moment. He observed the appreciation in one or two of the old faces – Boswell’s father’s, Kames’s – and the cold hard stares of others, such as Covington’s. Then he bowed and turned back to where Dundas, Maconochie and Knight were seated. There was a general murmur throughout the court, as people took the opportunity of the hiatus to cough, blow their noses, take snuff, pass a word or two to a neighbour. But the Lord President did not allow this to go on long. ‘We hae a great deal tae get through today,’ he said, ‘forby this important maitter. Mr Cullen, would ye care tae continue?’

Kames said loudly, ‘There are haill battalions o them drawn up on each side. Hoo mony o the bitches are intendin tae speak?’

The President did not seem to think this a ludicrous intervention, and scowled at the titters it generated. ‘It’s true, gentlemen, we shall be here aw day if each o ye taks as lang as Mr Maclaurin. Is it necessary that ye should aw speak?’

Knight’s counsel conferred. Maclaurin stood up. ‘Mr Maconochie respectfully relinquishes his place, my lords, but will pass the main points o his argument tae Mr Dundas, if that is acceptable.’

Wedderburn’s counsel also had a quick consultation. Cullen said: ‘We could insist that we should match the pursuer’s counsel exactly, my lords – that is, that two of us should speak. However, if we are permitted to have the last word, and if we may have a five-minute adjournment before we plead, we will forfeit that equality of numbers.’

Arniston cast an eye along the Bench; met with no objections. ‘Very well, gentlemen. If awbody is content wi that arrangement – Mr Dundas,’ he said to his half-brother, ‘would ye care tae finish for the pursuer, so that we may then hear what the tither side has tae say?’

Dundas started from his seat like a prizefighter. Thick-set and bluff in stature, he leaned forward, shoulders hunched, as he faced the Bench, his dark eyes constantly searching for signs of reaction among the judges. When he spoke it was with a quiet passion that carried a tone of immense authority – almost as if he were the Lord President addressing the court, and Arniston only an impostor in borrowed robes. Whether this authority had grown in the three years Dundas had been Lord Advocate, or whether it was a manifestation of the ambition which had propelled him into public office in the first place, was an open question. Most would have said the latter, that Harry Dundas had been born to perform on stages such as this.

‘My lords, I hae little tae add tae whit Mr Maclaurin has already so eloquently expressed. Like him, I begin wi a general point, and then move tae particulars. A perfect equality amang men is impossible, and all schemes for establishing it are visionary. There must – there always will be – a disparity. One man will hae servants, anither will be a servant, and there is neither hairm nor disgrace in either situation. But there are natural rights, such as my learned friend has already described, which every man, o whitever race, ought tae enjoy.

‘The defender has argued in his informations that Negroes are inferior tae white people in point o capacity, and that it is therefore natural and justifiable for the whites tae enslave them in America and the West Indies. Weel, first we may ask, is it true that Negroes are inferior? The answer is, there is neither proof nor presumption that the fact stands so. The Negro slaves in oor colonies are made and kept miserable by their condition and by the laws that govern them. It is hardly surprising that they appear inferior. In spite o this, as we ken, there are examples of insurrections when these inferior beings hae risen up against their subjection. In Jamaica the Maroons fought for and won their freedom by force of arms, and are today a proud and independent people. It may be that, as the late Mr Hume has said, nae Negro has excelled in ony art or science, but how few labourers in Scotland have? Multitudes o white men hae lived and died unkent and unlamented. Every kirkyaird is packed wi the banes o men whase talents, if poverty hadna repressed them, would hae been recognised. If this is true o puir white men in Scotland and England and all across Europe, how much mair true must it be o the Negroes? Is there reason tae dout that multitudes o black men, men o talent and capacity and even genius, are at this moment consuming their strength in raising sugar and tobacco, indigo and rice, for West Indian and American planters – that noble and virtuous Africans are forced tae work for nae recompense other than tae be spared the lash, in order tae enrich men far less honourable, civilised and deserving than they? This surely canna be a right situation.

‘But let us suppose for a moment that it were true, that Negroes were far inferior tae whites. Would that inferiority be a reason why they should be treated wi injustice and inhumanity? Surely it would be the Christian duty o white men tae care for and protect their lesser brethren. Or else there can be nae moral obligation on onybody tae behave in a civilised mainner. Why then should a puir strang man no be entitled tae rob a weak rich man? The tane has whit the tither wants, and the tither has the power tae tak it. This is nae different frae the idea that Negroes are inferior and therefore should be slaves, or that slavery is justifiable because it is necessary for the commerce o this nation.’

Lord Monboddo, lounging at the clerks’ table, had periodically been making faces or noises of exasperation during both Maclaurin’s and Dundas’s speeches. At this point he could contain himself no longer.

‘This is absurd,’ he said. ‘I have heard Hume quoted as if his opinion has any authority, and I have heard Smith quoted although it would seem from his book on trade that he never read any of the writers of ancient times. Whether slavery is good for commerce or good for Negroes is immaterial. The point is, slavery is only found in civil societies, not among barbarians, who either kill or adopt their prisoners. Prove it is against the jus gentium, the law of nations, not against the law of nature, for it has nothing to do with man in a natural state.’

‘My lord,’ Arniston said quickly as Monboddo drew breath, ‘we may all offer oor opinions later. Please let Mr Dundas continue.’

‘And remember too,’ Monboddo breenged on, ‘that the highest civilisations the world has ever seen, of Greece and Rome, countenanced slavery.’

‘My lord –’Arniston tried again, but Dundas was quicker, and louder.

‘My lords,’ Dundas said, ‘I am aboot tae address this very point – the law of nations – or at least, the law of this nation. And by that I mean the Scottish nation. It is certain that neither oor law or custom presently gie the least countenance tae ony species o slavery. I do not propose tae waste the court’s time discussing whether it ever took place amang us. It is all one whether it did or it didna. If we once had it when we were barbarous, and it has died oot amang us, this surely is not an age for relapsing intae such an abuse. If we never had slavery, even when we were barbarous, we certainly will not adopt it noo that we are a civilised and an enlightened nation. That may or may not satisfy Lord Monboddo, but it is whit we believe.

‘Mention has been made in the informations of the servitude of the colliers, which until recently existed here. Noo this, my lords, though it was inconsistent wi the state of oor nation as I hae jist described it, was by nae means a state of slavery, however much some thocht it so. Oor colliers and salters were protected in their person and property by the law o the land: they were not mere chattels or things. It is true that a man who wrocht at a coal work a year and a day was bound tae continue at it for life; and that his children, if they once entered that work after puberty, were also obliged tae work there for life. And it is true that, through the circumstances o their particular labours, the colliers and salters hae been considered awmaist as a race apairt frae the rest o oor people. But in nae ither respect were the colliers the personal slaves o the coalmaister. They received wages, aften mair than the average, and hooses and ither things as pairt o the contract between themsels and the maister. There is nae contract between a maister and a slave. By comparison wi the Negroes in the plantations, the colliers’ servitude was mild indeed. Yet even in the last few years an Act o Parliament has abolished it in principle, and the last remnants o that system are falling away, and in a generation will be quite gone.

‘Again, my lords, I will not rehearse the many legal opinions aboot the freedoms o this country, and o oor sister kingdom England, tae which we are noo joined, except tae say that there is nae ither country in the world where the principle o liberty is mair widely kent and accepted in baith law and practice. Insteid, I will come tae the recent case o James Somerset, determined in London by the King’s Bench six years syne. Noo the defender maintains that in this instance the decision went against the maister on whit we micht call a speciality, a technicality if I may be allowed such a term. That is tae say, when the slave absented himsel frae the maister’s service, the maister had him seized and pit on board a ship wi the intention o cairryin him back tae the colonies tae be sold; and the King’s Bench decided that the maister could not so act, as he broke the laws o England whaur he then was, since it is unlawful tae seize a man by force tae be sold abroad. Therefore, the slave James Somerset must go free. But had the maister merely taken Somerset wi him, under the warrant o a judge issued against the slave for desertion, withoot expressing his intention tae sell him, then nae offence would hae been committed. That is how the defender sees the Somerset case.

‘My lords, we say this is a gey selective interpretation of Lord Mansfield’s ruling. Can it really be supposed that the Lord Chief Justice of England would deliberately choose tae deliver an enigmatical opinion wrapped up, on purpose, in darkness and ambiguity?’

‘I’d hae thocht it quite likely,’ said another voice from the Bench. This time it was Braxfield, speaking loudly to his neighbour, Lord Gardenstone. It was widely rumoured that Lord Mansfield had blocked Braxfield’s appointment as a judge the first time round, but had expressed effusive delight at such an addition to the Scottish Bench when he could not prevent it a year later.

Henry Dundas, smiling, continued. ‘We say, my lords, that the judgment was a general not a specific ane, and that it said that a Negro, brocht intae this country, canna be cairried back tae the plantations against his will for ony purpose. Certainly, frae the uproar that arose amang the slave traders, planters and their agents, and frae the numerous papers and pamphlets they hae written against the judgment, it would seem that they understood it in this way. And the maister, Mr Stewart, also understood it in this way, and that he had lost on the general point, otherwise he would certainly hae applied tae a judge for a warrant tae recommit the Negro, but he didna.

‘It is undeniable, frae the accumulated doctrines and authorities that we hae presented in oor informations, which I will not burden ye wi again here, that, as in France, Germany, England, and ither countries of Europe, every man existing in these countries that isna a criminal is free, whether he be a native or a foreigner, and whether he was aince a slave in anither country. Therefore nae ither man may tak him awa against his will. This idea is founded in the principles of natural justice, and it must apply equally in Scotland. The clear consequence is, then, that every Negro, as soon as he sets foot in Scotland, must become a free man.’

All this time, Dundas’s voice, controlled but with an edgy violence to it, had been rising in volume. Now he paused, turned so that he was in profile to the gallery, and put down his notes. Even had the Lord President wished to intervene, Dundas for the next few minutes was unstoppable.

‘Again, my lords, I dinna wish tae deave ye wi mair examples than are awready afore ye of the harsh treatment and punishments meted oot tae the Negroes in Jamaica, but let me remind ye that Mr Knight could hardly expect justice and consolation frae that colony’s laws should he once again set foot there, especially as he would be considered a slave that had deserted his maister. By contrast, does not a Negro frae that place, once here, deserve the full protection of the humane and equitable law of Scotland? Similarly, even if the judgment of the English courts should rest on a narrow ground and not, as we maintain, on the wider principle – even if the common law of England should say that the condition of perpetual service is tae be upheld, though the original transaction that began it is manifestly unjust – it is hoped that the authority of neither it, nor the law of Jamaica will ever be countenanced in Scotland. In ancient times, the free and warlike spirit of the Scots beat back the infection of slavery: Tacitus records the noble sentiments of the Caledonians; Sir William Wallace and Robert the Bruce are not forgotten; and in modern times the equality, the justice and humanity of oor religion and oor laws, hae preserved tae us the right of freedom. Whaurever slavery has existed in Christendom, religion, reason and law hae hunted it frae its sordid abodes. France, England, Germany, Denmark and Holland surround us: in aw these countries the oppressed Negro finds his freedom. Is Scotland alane tae chain him up? We are ridding oorsels of the last vestiges of whit micht be considered serfdom in oor society, by Act of Parliament. At the same time, are we tae assert that whit isna guid enough for a white man is simply bad luck for a black man? There is nae logic in that, my lords. There is nae logic in oor attempting tae justify the oppression of the Africans.

‘The defender has laboured tae conjure up gigantic spectres of future evils frae a judgment in favour of the pursuer. It is claimed that the haill African fleet micht be driven by storms tae Scotland, and a hundred thoosand Negroes, the number shipped annually tae the plantations, would at once become free men; that Scotland, as soon as word got oot of this judgment, would become the general receptacle of fugitive Negroes, wha would arrive in multitudes; and that the pure Scottish blood would be contaminated wi a tinge of African dye. My lords, such suppositions dinna deserve a serious answer. We can hardly arrange Scottish law in order tae protect the institution of slavery throughout the rest of the globe. But I will say this, if some in this court are fashed by this prospect: the maist effectual means tae preserve Scotland frae a breed of Africans, is tae render it the interest of their tyrants tae keep them at a distance frae it.

‘My lords, I am done. Whit I hae said is but a summation of, and an addition tae, the detailed arguments laid before ye in writing. The pursuer’s case has been made, and he, and we his coonsel, noo rest, wi tranquillity his future fate on the justice and humanity of this court.’

This sudden conclusion, reached before the President had even thought of reaching for his sand-glass, was delivered in a hushed tone, the quiet after the storm. The performance was greeted with stamping of feet and a few cheers – but these were cut off after only a few seconds by Arniston repeatedly pounding the Bench with the wooden base of the sand-glass and sweeping the court with a furious, imperious stare. ‘We are not,’ he roared into the silence, ‘we are not in a bear-pit. I will clear the court if that occurs again. Mr Cullen, ye hae five minutes.’

Arniston heaved himself upright and made for the side-door. A court officer arrived only just in time to open it for him. The other judges filed out, with the exception of Monboddo, who presumably wanted neither the company of his fellow-judges nor a share of the claret that would be waiting for them. With the Session gone, a general clamour broke out among the crowd.

Cullen, Ferguson, Campbell and John Wedderburn huddled together, deciding which parts of their argument could be removed or abridged and which parts were essential. Across the room Knight’s counsel were also in deep consultation. Maconochie seemed to be emphasising some point of urgency to Dundas, speaking very directly into his face, while Maclaurin listened intently. The atmosphere under the gallery was thick and oppressive. Knight himself was for a moment forgotten. Suddenly he turned and started towards the door. A route through the crowd opened before him, and a few hands clapped his shoulders as he went, but he made no response, did not seem even to feel them on him.

Before the crush closed behind him, another man had also decided to leave the room for some fresh air, and pushed himself along in the black man’s wake.

Information about Document 590

Joseph Knight (extract 3)