Joseph Knight

by James Robertson

  ‘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 own 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 consists 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 of 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 is
sued 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.’