Ben is a litigation director, a cognitive impairment, he has recently been appointed to the Human Rights Commission.
He is going to present on one of the most captivating and fascinating stories
within Bermuda's legal and maritime history that of the slave ship enterprise.
Thank you so much. And good evening, ladies. Good evening, ladies and gentlemen.
On the 11th of February 1835, the Enterprise, an American Brig.
Sailed into Hamilton Harbour.
It had been sailing between Virginia and South Carolina and had been blown dramatically off course and ended up off the coast of the Mirror.
Its cargo was 78 slaves. They were almost all young and they had all been born or raised in the USA.
What followed is one of the most inspiring moments in the Indymedia history, certainly when it comes to the interplay of race and law.
Richard Tucker. A Black businessman and the real hero of the story, applied for habeas corpus on behalf of the slaves.
The ship tried to leave but was prevented.
And on the 18th of February 1835, the slaves were landed at Bars Bay and escorted by jubilant crowds up to the courthouse.
There, in a late night sitting,
Chief Justice Butterfield informed each of them that they were free and asked them individually if they wished to remain in Bermuda.
The vast majority, 72 of the 78, said yes.
The tragic exception a Mrs. Ridge decided to take herself and her children back to South Carolina and thus back to slavery.
She had other children in the slave states and so faced a terrible Sophie's Choice freedom or abandoning her other children to slavery.
No one knows what happened to Mrs. Rich. She just disappears entirely from history.
However, in the courthouse in Hamilton, there were emotional scenes.
The attorney general, Mr. Darel, organised a whip round for funds to help the newly liberated slaves.
The mayor of Hamilton, Mr. Cox, offered up his warehouses as temporary accommodation, but it was Mr. Tucker through his friendly society,
an early form of NGO who apparently took full responsibility or real responsibility for looking after Bermuda's newest arrivals.
So the liberation of the enterprise led to a great deal of local celebration and emotional scenes.
It also created an international incident. There were angry press reports in American media.
Angry speeches on the floor of the US Senate. Indeed, the senator for South Carolina, Mr. Calhoun,
suggested in 1840 that if there were any repetitions of the enterprise case, it would lead to war with Britain.
So Burton Hamilton in 1835, it was a moment of euphoria locally.
So is the enterprise an example of Bermuda landing a blow for universal human rights?
The answer is in part, yes, but there is a darker context.
The answer is yes, because the liberation of the enterprise enterprise slaves is an example of the common laws,
antipathy to slavery and antipathy which must be celebrated.
The enterprise litigation did not involve any novel questions.
There's no reported decision as no report of the Chief Justice even having any indulging in any legal debate.
He was certainly not creating a precedent. He was following one.
Indeed, this was not the first time in practical terms of American slaves being freed in the British colonies.
An American ship called the comet had been wrecked in the Bahamas in 1830, and the slaves had been freed.
Chief Justice Butterfield was also applying well-established legal jurisprudence in in 1772.
This is a case the Chief Justice referred to in his talk a few moments ago.
Lord Mansfield, the chief justice of England in the case of Somerset and Stewart, had ruled that the common law simply did not recognise slavery.
Somerset and Stewart, like the enterprise case, involved habeas corpus.
It was a case where Mr Somerset was a slave who arrived in England from Virginia
and then was forcibly put on a ship to go back to Jamaica to be sold for,
apparently upsetting his owner. And a writ of habeas corpus was filed on his behalf in the resulting decision,
and it involves some of the leading advocates of the of the age of the decision itself as 10 pages long, which is extraordinary for 1772.
Lord Mansfield ruling was short but rightly celebrated,
and he said as follows and I quote The state of slavery is of such a nature
that it is incapable of being introduced on any reasons moral or political.
It is so odious that nothing can be suffered to support it, but positive law and by post of law, he meant a statue.
So what Lord Mansfield was saying was that as far as the common law was concerned, slavery was not recognised.
It had nothing to do with the common law. It was an odious creation of parliaments.
And further, what was not said in the Somerset Institute case is almost as important as what was said.
Put another way, the parameters of the debate are as important as the decision itself.
For the argument from the bar in Somerset and Stewart and Lord Mansfield's ruling from the bench were colour-blind.
The ethnicity of Mr Somerset was.
Legally irrelevant, the African origins of no legal consequence, and we can contrast this with American jurisprudence from the same period,
the Supreme Court decision of Dred Scott and Sanford 1857 was a stain on the reputation of America's highest court and the Chief Justice.
Chief Justice Taney is now only really remembered for his appalling ruling in that case,
and the facts in the Dred Scott case were simple and resonate with the enterprise and the English case of Somerset.
In Dred Scott, an American slave, Mr. Scott apply to the federal courts to rule that he was free.
He had spent years in a free state. So how could he be both free in one state and a slave and another?
In contrast to Somerset and Stewart, and in contrast to the enterprise, the ethnicity of Mr. Scott was all important.
It was pivotal to the American decision, according to the Supreme Court.
If you were black, you could not be a citizen of the United States.
According to the Supreme Court, men and women of African descent were not citizens and thus had no standing to complain about slavery,
let alone do anything about it. This racist decision was a catalyst for the outbreak of the American Civil War in 1861, some four years later.
But in Bermuda in 1835, we had celebration, not violence, because the English common law did not recognise race as legally relevant.
The barrister for Mr Somerset to go back to the English decision in 1772 the past year for Mr Somerset had argued that England
Air is a poetic phrase often used in the debates at that time that England's air was too pure to permit slaves to exist.
The reason for the jubilation in Hamilton in 1835 after the enterprise decision was that Bermuda's air was being pronounced clean.
There is, however, a darker side. Chief Justice Butterfield reached a decision based squarely on ordinary English common law principles,
which had been set down for many years now, in particular by Lord Mansfield. He was applying common notions of liberty of subject,
but the simple fact is that if the enterprise had entered Bermuda's waters some six months earlier,
he would have done nothing because slavery, as we all know, was alive and well in until August 1834.
There's plenty of positive law and order in existence underpinning the institution of slavery.
Indeed, prior to 1834 in comparative law terms, Bermuda was noted for its singularly repressive slavery regime.
William Wilberforce of the Society for the Abolition of Slavery again as the chief referred to the Wilberforce Nest Pivotal Society few moments ago,
had this to say about Bermuda in a report dated 1825, and I quote of all the West India Islands.
The laws of Bermuda are amongst the harshest and most appropriate.
There is a wanton severity in their legislation, which is quite singular,
and the report cited not just the usual statutory provision which underpin slavery.
For example, the impunity which give grants to slave owners who killed their slaves,
but referred to in particular, the legislation which prevented liberal liberation or mainly mission of slaves.
Anyone who attempted to liberate their own slaves was subject to large fines and
indeed free blacks were prevented or banned from owning any real property or,
you know, real estate or indeed entering long leases.
In short, just six months before Enterprise's arrival, Bermuda was certainly not a safe haven.
The air was anything but clean. Second, we should recall that the abolition of slavery was not home-grown.
Abolition did not come from the need as parliamentarians. The Emancipation 1834 were not due to the good intentions of our parliament.
Abolition was imposed by Westminster like the enterprise, abolition was an import.
The Emancipation The Emancipation Acts of 1834 were mandated by the Westminster, the English Abolition of Slavery Act of 1833.
It was a colony wide third, while the new arrivals were embraced and abolition celebrated in 1835.
The consequences of abolition were certainly not embraced in their entirety.
The property bar for voting was raised in 1834 in the Emancipation Acts as part of a package of local measures dealing expressly with abolition.
It was part of the same package and same the same statutes, so the ruling elite would be protected from the new demographic.
The enterprise slaves were free, but they would not be voting.
In short, in 1835, there was freedom for two new arrivals, but certainly not a quantity.
There is a rather sickening footnote as well to the to the enterprise,
which is you may be aware of, but you may not know this slightly less well known.
Britain was in 1853 following an international arbitration ordered to pay damages to the enterprise's
insurers for wrongfully liberating the enterprise slaves for international law at that time,
recognised slavery.
And according to International Law Chief Justice B.A., Butterfield's decision was made entirely without jurisdiction and was simply wrong.
He should go into international law, have applied American slavery laws.
Thus, all 72 of the new arrivals should have been sent on to South Carolina to bondage for a ship on the high seas.
Sailing under a country's flag is and was considered an extension of the flag country.
A ship forced to enter local waters due to bad weather is under international law to be treated as if it were still on the high seas.
So in other words, the enterprise should have been treated by Chief Justice.
Butterfield are still in American waters and thus the Chief Justice.
Butterfield got it wrong.
So Britain was ordered by an arbitrator to pay $17000 compensation to the insurers as reparation for this breach of international law.
But in 1835, Bermuda fortunately ignored wittingly or unwittingly and its problem.
It was completely unwitting. It ignored its international obligations.
For me to follow the English common law and Bermuda began to breathe cleaner air.