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.
Despite Arniston’s desire to keep proceedings moving, it was apparently harder to get the Session back into the chamber than it had been to lead them out. Nearly fifteen minutes elapsed before they reappeared, wiping their mouths as they did. The President however saw no reason to blame himself. ‘Ah weel, Mr Cullen, if ye hadna asked for an adjournment ye could aw hae spoken jist as ye meant tae in the first place. But that canna be helped. Ye may stert noo, onywey.’
Cullen got up and glided to the centre of the court. He knew that Maclaurin and Dundas between them had captured the moral ground. He was not interested in that, since he could not win it back from them. To win this case, he could be concerned only with the law.
But then something else occurred to him, something which was clearly occurring to several of the judges, and to a nervous-looking John Maclaurin, at the same time.
‘My lord, I will start. I cannot help observing, however, that an important item has gone missing in the brief period since we last met. Not for the first time, the pursuer appears to have absented himself.’
There was a general gasp from the gallery, where most of the people could not see who was or was not present beneath them.
‘I do not know whether we should read anything from this unexpected development,’ Cullen said, ‘– if indeed it is unexpected. The defender –’ turning to smile at John Wedderburn ‘– does not look very surprised.’ By now there was laughter in the public space and even along the Bench. ‘This kind of behaviour is quite characteristic, perhaps.’
Maclaurin jumped to his feet. ‘My lords, Mr Cullen’s jokes are cheaply made. Mr Knight was feeling unwell. He went out for air. Mr Maconochie –’ Maconochie set off as if to fetch their client, but at that moment the door at the rear of the room opened and Knight burst through. He seemed very wound up, furious or frightened, or perhaps both.
‘Tak your place, sir,’ Arniston said. ‘We dinna like tae be kept waiting here.’ Knight made no sign of apology. He scowled up at the Bench as he reached his seat. Some of the judges recoiled, as if animated by fears they had not known they possessed. Knight would not return Maclaurin’s anxious inquiring glances.
Cullen received a nod from the President. He knew that he had been presented with a gift by the opposition, and set about making the most of it.
‘My lords, we have heard much, so very much about the immorality, the injustices of slavery, the alleged cruelties of Jamaica, and so forth, that we are in danger of forgetting the facts. My lord, you spoke very true when you said this is not a bear-pit. Nor, as Mr Dundas himself pointed out, is it a place where we may legislate for the world. We are here for one purpose only, and that is to decide whether Mr Wedderburn, the defender, has the right to the perpetual service of the pursuer. All the bombast and rhetoric of the other side must be discounted, and the plain facts looked at.
‘In a country where the blessings of liberty are so completely enjoyed as they are in Britain, it is natural for a good man when he hears the very name of slavery to take the opposite side of the question at once, without examination, and to make judgment solely on the basis of his natural prejudices. It does not occur to him to address the issue according to the law of the land as it stands, nor to leave it to
the legislative power to correct that law if it should require any amendment.
‘But here we are in a court of law, and this court is surely aware of and superior to such prejudices. We have no reason to be afraid of our cause, though we will not be surprised if the popular clamour should rather be against us.
‘We find it almost unfair to hear the word “slavery” quoted against us, since there is no need – or ought to be no need – to enter into a discussion of that question in the present cause. All that Mr Wedderburn claims is a right to the service of the pursuer, to which he cannot doubt but that he is well entitled.
‘The pursuer’s counsel have thought proper all along to plead their cause exceedingly high, insisting that Mr Wedderburn had no title to the property of the pursuer as a slave even in the West Indies, because of the doubtful manner, as they say, by which he was acquired. They demand evidence of ownership. If by this they mean to insist on a written contract in the Whidah or Anamaboe or indeed some other African language that we know not the name of, the defender acknowledges that he has none. It is the custom to transact these matters only verbally, and as he purchased the pursuer in a fair sale, it is not necessary, nor indeed possible, to go farther back. Nothing can be more ridiculous than to suppose that for every Negro in the West Indies his master should have a proof of the particular manner in which he had been purchased on the coast of Guinea. What is very clear is the fact that by all the custom and law of Jamaica the pursuer was the legal property of the defender.
‘Furthermore, as our written submissions show beyond any doubt, that custom and law is founded upon the laws of Britain, by Acts of Parliament and by royal decrees, as well as by hundreds of years of practice. Nowhere do these statutes advise the planters of the Indies that in consequence of returning to the land where these very laws were made, they should be deprived of their right, and be forfeited of their property – under the same authority by which they were enabled to acquire that property in the first place.
‘If Mr Wedderburn’s title to the pursuer is invalid, then the entire system of slavery, the entire industry and commerce of the plantations, the entire wealth and prosperity and trade of this nation, is also invalid. This is a palpable nonsense. Do the honourable gentlemen opposite drink coffee? Do they drink rum? Do they take tea with their wives? Do they wear cotton? Is the cotton dyed with indigo? Do they eat rice puddings and sprinkle them with sugar? Do they smoke tobacco? All these activities, these pleasures and necessities of our lives, are invalid, my lords, upon their argument. I repeat, to claim that this court should be passing judgment upon slavery when we should be deciding upon the property rights of Mr Wedderburn is a wilful pretence.
‘Like my learned and emphatic friend Mr Dundas, I do not wish to deave your lordships with arguments you have already read at length. Nonetheless, I must repeat what was said earlier: Joseph Knight is so far from being a slave, as that term is generally understood, that one must wonder what oppression it is from which he seeks to free himself. Mr Wedderburn trained him, at considerable expense, to be his own personal servant. He has ever treated him with tenderness and indulgence. No hardship was ever imposed on him. In place of being left in Jamaica, to toil at cultivating sugar cane under a burning West Indian sun, he was brought to Scotland to live the life of a gentleman’s servant; was clothed, fed, housed, taught to read and write, and instructed in the principles of the Christian religion. My lords, we have heard of poor forgotten genius Scottish labourers rotting away in kirkyards. Many a Scottish labourer must dream of such a life as the pursuer has enjoyed! The colliers and salters, of whom it was said that their lives were easier than those of the Negro slaves, could scarcely even dream it, it is so far removed from their reality – but I will return to them later.
‘And so you might think that mere gratitude alone might have secured, upon the pursuer’s part, inviolable fidelity and attachment to such a master. His behaviour, sadly, does not advertise any of the decency and kindness that clearly reside in Mr Wedderburn. Every good deed done to the pursuer is repaid with an ill one. His master has never mistreated him: he therefore forms a scheme for deserting his service. He is made a Christian: he proceeds to seduce, or allow himself to be seduced by, a housemaid, a girl of low morals –’
A voice, quite low but very firm, cut across Cullen’s. ‘Steady noo, Maister Knight. I warned ye o this.’ It was Maclaurin’s voice. He had a restraining hand on Knight’s arm, and at the same time as he was holding Knight in his seat, he was using him to lever himself upright. ‘My lords, this is unwarranted. The pursuer’s spouse’s character has nae place in this cause and the defender’s coonsel should withdraw that ootrageous remark.’
‘Restrict your remarks tae the cause, Mr Cullen,’ said Arniston wearily. ‘Mr Knight, I willna tell ye again. Tak your seat, and stay in it.’
‘I withdraw the remark,’ said Cullen coolly, knowing that it was said anyway and would lodge in the dry roof-space of the less liberal judges’ minds; as would Knight’s apparent contempt for the legal process. ‘To continue, then. He is taught to read: he picks up a newspaper, reads of the case of his countryman Somerset, and at once decides that he has no further obligation to his master. He proves himself, in other words, at every turn undeserving of that freedom to which he presumes to aspire. Freedom, my lords, does not come, if I may put it this way, unfettered. It comes with duties, and obligations, and responsibilities. These Mr Wedderburn has exhibited in all his dealings with his servant. How is he repaid? With desertion.
‘Yet the pursuer expects the court to blame Mr Wedderburn for his own shortcomings. More than that, he expects the court to blame Mr Wedderburn for the occasional abuses that are committed in bringing the Negroes from their native country, or in their treatment in the West Indies. Yet, as is demonstrably clear, Mr Wedderburn has never abused the pursuer, whom he purchased in good faith and according to usual practice from Captain Knight. While the law of Britain remains in its present state, authorising and protecting the slave trade and the planters’ property rights in their slaves, courts of law can never be at liberty to dispense with that law from any supposed considerations of its inhumanity or inexpediency.
‘My lords, I will not enter again into the arguments about whether slavery runs contrary to the principles of natural law or the law of nations. All historical evidence shows, as has already been mentioned from the Bench, that it is a practice which has prevailed in every nation that ever existed, from Greece and Rome to the present, and it prevails today over the greater part of the world. We have heard of France and Holland and Britain being havens of liberty: slavery exists in the colonies of each of these nations, and is protected by their laws. In Africa, from whence the slaves are brought, slavery is so much a part of society that parents sell their own children. Did the rapacious Europeans descend upon the west coast of Africa and invent slavery? No, it was and is practised by the Africans themselves, as a consequence of conquest, as a form of punishment for crime, and as a form of commerce. Furthermore, it is accompanied in Africa by the most shocking and barbarous cruelties. Being taken from such miserable and savage conditions to the New World, where they are well fed and clothed, and able to live in safety and peace and be useful labourers, can only be seen as an improvement in the circumstances of the plantation slaves. They are well suited to the climate there, which is, though often fatal to whites, temperate in comparison to that which they left, and they are well fitted for the employment to which they are put. We understand, my lords, it became a common saying in the Indies that “unless a Negro happened to be hanged, he never died” – a saying which could scarcely have become widespread were there any truth in the vast numbers of mortalities claimed by the pursuer’s counsel. How much more, then, is it true of the pursuer, that by being brought to Scotland his circumstances have been still further improved, and that, until he deserted his master, he was ever on an upward journey towards civilisation, comfort and happiness.
‘Let it also be said that
Scottish patriotism provides no haven for those who would do away with all bondage. Scotland has in no way distanced herself from the institution of slavery. Fully one-third of the planters of Jamaica are Scotsmen. They own a quarter of the land there. In Virginia and the Carolinas, Scots, both Highlanders and Lowlanders, are so thick on the ground that some of the Negroes there speak the Gaelic, and others the Scotch tongue. Go to Glasgow and see the great buildings and the busy commerce of that city, founded on tobacco and sugar. One might almost say that Glasgow is made of tobacco. Even before this age, though, when the Scots aspired to their own empire, it was with the utmost reluctance, at the time of the Union, that they – I should say we – surrendered the rights of the African Company, and ever since it has been with the utmost enthusiasm that we have engaged in the ventures opened up to us by the Union, including those that could not prosper without slavery.
‘Ever since then, too, Negroes have been brought by their masters from the colonies to Scotland, but no question with respect to their becoming free arose until very recent times. I think we should not indulge in the cant and false patriotism of pretending that we are a nation who so love natural justice that we would welcome thousands of black men among us when they steal across the Atlantic seeking liberty on our shores. My lords, I think our attitudes have not yet been sufficiently tested on that score, but if thousands do come among us – well, we shall then be put to the test. I say this to the court: they may come among us, and we may not like it. What song will Scottish patriots sing then, my lords?
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