At the Bar, the two sets of counsel were several feet apart, but there was little sense of antagonism between them: Messrs John Maclaurin and Allan Maconochie on the one hand, and Messrs Robert Cullen, James Ferguson and Ilay Campbell on the other. They were well acquainted, if not all close friends, and on entering the court room had greeted one other amicably enough before separating to make their last-minute preparations. And now, a little late, and bowing an apology to his half-brother the Lord President, came Henry Dundas to join Knight’s team. As Lord Advocate, Dundas was entitled to sit within the Bar, in the well of the court. He had joined this cause in an unofficial, private capacity but he still took up his official seat.
As soon as he had done so, the macer called the case: ‘Joseph Knight, a Negro of Africa, Pursuer, against John Wedderburn of Ballindean, Esquire, late Planter in Jamaica, Defender.’
‘But, Archie,’ Mrs Jamieson asked, ‘where is Joseph Knight aw this time?’
‘That,’ Archie said, ‘is a very guid question.’
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 replied, 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 of 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 about 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, 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 chattle 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.
Joseph Knight Page 32