1 00:00:00,060 --> 00:00:07,200 Ben is a litigation director, a cognitive impairment, he has recently been appointed to the Human Rights Commission. 2 00:00:07,200 --> 00:00:11,130 He is going to present on one of the most captivating and fascinating stories 3 00:00:11,130 --> 00:00:17,610 within Bermuda's legal and maritime history that of the slave ship enterprise. 4 00:00:17,610 --> 00:00:21,510 Thank you so much. And good evening, ladies. Good evening, ladies and gentlemen. 5 00:00:21,510 --> 00:00:28,140 On the 11th of February 1835, the Enterprise, an American Brig. 6 00:00:28,140 --> 00:00:30,600 Sailed into Hamilton Harbour. 7 00:00:30,600 --> 00:00:38,970 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. 8 00:00:38,970 --> 00:00:47,680 Its cargo was 78 slaves. They were almost all young and they had all been born or raised in the USA. 9 00:00:47,680 --> 00:00:55,480 What followed is one of the most inspiring moments in the Indymedia history, certainly when it comes to the interplay of race and law. 10 00:00:55,480 --> 00:01:04,390 Richard Tucker. A Black businessman and the real hero of the story, applied for habeas corpus on behalf of the slaves. 11 00:01:04,390 --> 00:01:07,960 The ship tried to leave but was prevented. 12 00:01:07,960 --> 00:01:16,600 And on the 18th of February 1835, the slaves were landed at Bars Bay and escorted by jubilant crowds up to the courthouse. 13 00:01:16,600 --> 00:01:18,790 There, in a late night sitting, 14 00:01:18,790 --> 00:01:27,340 Chief Justice Butterfield informed each of them that they were free and asked them individually if they wished to remain in Bermuda. 15 00:01:27,340 --> 00:01:31,960 The vast majority, 72 of the 78, said yes. 16 00:01:31,960 --> 00:01:40,990 The tragic exception a Mrs. Ridge decided to take herself and her children back to South Carolina and thus back to slavery. 17 00:01:40,990 --> 00:01:50,380 She had other children in the slave states and so faced a terrible Sophie's Choice freedom or abandoning her other children to slavery. 18 00:01:50,380 --> 00:01:55,240 No one knows what happened to Mrs. Rich. She just disappears entirely from history. 19 00:01:55,240 --> 00:02:00,340 However, in the courthouse in Hamilton, there were emotional scenes. 20 00:02:00,340 --> 00:02:08,230 The attorney general, Mr. Darel, organised a whip round for funds to help the newly liberated slaves. 21 00:02:08,230 --> 00:02:17,410 The mayor of Hamilton, Mr. Cox, offered up his warehouses as temporary accommodation, but it was Mr. Tucker through his friendly society, 22 00:02:17,410 --> 00:02:26,980 an early form of NGO who apparently took full responsibility or real responsibility for looking after Bermuda's newest arrivals. 23 00:02:26,980 --> 00:02:32,980 So the liberation of the enterprise led to a great deal of local celebration and emotional scenes. 24 00:02:32,980 --> 00:02:40,240 It also created an international incident. There were angry press reports in American media. 25 00:02:40,240 --> 00:02:47,050 Angry speeches on the floor of the US Senate. Indeed, the senator for South Carolina, Mr. Calhoun, 26 00:02:47,050 --> 00:02:56,200 suggested in 1840 that if there were any repetitions of the enterprise case, it would lead to war with Britain. 27 00:02:56,200 --> 00:03:02,830 So Burton Hamilton in 1835, it was a moment of euphoria locally. 28 00:03:02,830 --> 00:03:10,060 So is the enterprise an example of Bermuda landing a blow for universal human rights? 29 00:03:10,060 --> 00:03:15,010 The answer is in part, yes, but there is a darker context. 30 00:03:15,010 --> 00:03:20,980 The answer is yes, because the liberation of the enterprise enterprise slaves is an example of the common laws, 31 00:03:20,980 --> 00:03:26,140 antipathy to slavery and antipathy which must be celebrated. 32 00:03:26,140 --> 00:03:29,680 The enterprise litigation did not involve any novel questions. 33 00:03:29,680 --> 00:03:37,420 There's no reported decision as no report of the Chief Justice even having any indulging in any legal debate. 34 00:03:37,420 --> 00:03:42,010 He was certainly not creating a precedent. He was following one. 35 00:03:42,010 --> 00:03:48,310 Indeed, this was not the first time in practical terms of American slaves being freed in the British colonies. 36 00:03:48,310 --> 00:03:55,060 An American ship called the comet had been wrecked in the Bahamas in 1830, and the slaves had been freed. 37 00:03:55,060 --> 00:04:02,110 Chief Justice Butterfield was also applying well-established legal jurisprudence in in 1772. 38 00:04:02,110 --> 00:04:06,910 This is a case the Chief Justice referred to in his talk a few moments ago. 39 00:04:06,910 --> 00:04:15,910 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. 40 00:04:15,910 --> 00:04:22,360 Somerset and Stewart, like the enterprise case, involved habeas corpus. 41 00:04:22,360 --> 00:04:28,990 It was a case where Mr Somerset was a slave who arrived in England from Virginia 42 00:04:28,990 --> 00:04:33,640 and then was forcibly put on a ship to go back to Jamaica to be sold for, 43 00:04:33,640 --> 00:04:40,840 apparently upsetting his owner. And a writ of habeas corpus was filed on his behalf in the resulting decision, 44 00:04:40,840 --> 00:04:48,010 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. 45 00:04:48,010 --> 00:04:53,020 Lord Mansfield ruling was short but rightly celebrated, 46 00:04:53,020 --> 00:04:57,580 and he said as follows and I quote The state of slavery is of such a nature 47 00:04:57,580 --> 00:05:01,690 that it is incapable of being introduced on any reasons moral or political. 48 00:05:01,690 --> 00:05:08,590 It is so odious that nothing can be suffered to support it, but positive law and by post of law, he meant a statue. 49 00:05:08,590 --> 00:05:15,760 So what Lord Mansfield was saying was that as far as the common law was concerned, slavery was not recognised. 50 00:05:15,760 --> 00:05:21,940 It had nothing to do with the common law. It was an odious creation of parliaments. 51 00:05:21,940 --> 00:05:29,710 And further, what was not said in the Somerset Institute case is almost as important as what was said. 52 00:05:29,710 --> 00:05:36,280 Put another way, the parameters of the debate are as important as the decision itself. 53 00:05:36,280 --> 00:05:44,230 For the argument from the bar in Somerset and Stewart and Lord Mansfield's ruling from the bench were colour-blind. 54 00:05:44,230 --> 00:05:46,800 The ethnicity of Mr Somerset was. 55 00:05:46,800 --> 00:05:57,420 Legally irrelevant, the African origins of no legal consequence, and we can contrast this with American jurisprudence from the same period, 56 00:05:57,420 --> 00:06:07,380 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. 57 00:06:07,380 --> 00:06:13,740 Chief Justice Taney is now only really remembered for his appalling ruling in that case, 58 00:06:13,740 --> 00:06:20,070 and the facts in the Dred Scott case were simple and resonate with the enterprise and the English case of Somerset. 59 00:06:20,070 --> 00:06:27,660 In Dred Scott, an American slave, Mr. Scott apply to the federal courts to rule that he was free. 60 00:06:27,660 --> 00:06:35,070 He had spent years in a free state. So how could he be both free in one state and a slave and another? 61 00:06:35,070 --> 00:06:43,920 In contrast to Somerset and Stewart, and in contrast to the enterprise, the ethnicity of Mr. Scott was all important. 62 00:06:43,920 --> 00:06:48,600 It was pivotal to the American decision, according to the Supreme Court. 63 00:06:48,600 --> 00:06:53,010 If you were black, you could not be a citizen of the United States. 64 00:06:53,010 --> 00:07:01,290 According to the Supreme Court, men and women of African descent were not citizens and thus had no standing to complain about slavery, 65 00:07:01,290 --> 00:07:12,460 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. 66 00:07:12,460 --> 00:07:24,430 But in Bermuda in 1835, we had celebration, not violence, because the English common law did not recognise race as legally relevant. 67 00:07:24,430 --> 00:07:33,610 The barrister for Mr Somerset to go back to the English decision in 1772 the past year for Mr Somerset had argued that England 68 00:07:33,610 --> 00:07:41,530 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. 69 00:07:41,530 --> 00:07:52,060 The reason for the jubilation in Hamilton in 1835 after the enterprise decision was that Bermuda's air was being pronounced clean. 70 00:07:52,060 --> 00:08:00,040 There is, however, a darker side. Chief Justice Butterfield reached a decision based squarely on ordinary English common law principles, 71 00:08:00,040 --> 00:08:07,420 which had been set down for many years now, in particular by Lord Mansfield. He was applying common notions of liberty of subject, 72 00:08:07,420 --> 00:08:12,970 but the simple fact is that if the enterprise had entered Bermuda's waters some six months earlier, 73 00:08:12,970 --> 00:08:20,500 he would have done nothing because slavery, as we all know, was alive and well in until August 1834. 74 00:08:20,500 --> 00:08:26,290 There's plenty of positive law and order in existence underpinning the institution of slavery. 75 00:08:26,290 --> 00:08:36,010 Indeed, prior to 1834 in comparative law terms, Bermuda was noted for its singularly repressive slavery regime. 76 00:08:36,010 --> 00:08:44,680 William Wilberforce of the Society for the Abolition of Slavery again as the chief referred to the Wilberforce Nest Pivotal Society few moments ago, 77 00:08:44,680 --> 00:08:53,050 had this to say about Bermuda in a report dated 1825, and I quote of all the West India Islands. 78 00:08:53,050 --> 00:08:57,850 The laws of Bermuda are amongst the harshest and most appropriate. 79 00:08:57,850 --> 00:09:03,130 There is a wanton severity in their legislation, which is quite singular, 80 00:09:03,130 --> 00:09:08,740 and the report cited not just the usual statutory provision which underpin slavery. 81 00:09:08,740 --> 00:09:14,920 For example, the impunity which give grants to slave owners who killed their slaves, 82 00:09:14,920 --> 00:09:22,150 but referred to in particular, the legislation which prevented liberal liberation or mainly mission of slaves. 83 00:09:22,150 --> 00:09:27,700 Anyone who attempted to liberate their own slaves was subject to large fines and 84 00:09:27,700 --> 00:09:32,630 indeed free blacks were prevented or banned from owning any real property or, 85 00:09:32,630 --> 00:09:37,060 you know, real estate or indeed entering long leases. 86 00:09:37,060 --> 00:09:43,240 In short, just six months before Enterprise's arrival, Bermuda was certainly not a safe haven. 87 00:09:43,240 --> 00:09:52,240 The air was anything but clean. Second, we should recall that the abolition of slavery was not home-grown. 88 00:09:52,240 --> 00:10:01,690 Abolition did not come from the need as parliamentarians. The Emancipation 1834 were not due to the good intentions of our parliament. 89 00:10:01,690 --> 00:10:09,100 Abolition was imposed by Westminster like the enterprise, abolition was an import. 90 00:10:09,100 --> 00:10:18,880 The Emancipation The Emancipation Acts of 1834 were mandated by the Westminster, the English Abolition of Slavery Act of 1833. 91 00:10:18,880 --> 00:10:29,770 It was a colony wide third, while the new arrivals were embraced and abolition celebrated in 1835. 92 00:10:29,770 --> 00:10:34,210 The consequences of abolition were certainly not embraced in their entirety. 93 00:10:34,210 --> 00:10:43,690 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. 94 00:10:43,690 --> 00:10:51,520 It was part of the same package and same the same statutes, so the ruling elite would be protected from the new demographic. 95 00:10:51,520 --> 00:10:56,460 The enterprise slaves were free, but they would not be voting. 96 00:10:56,460 --> 00:11:04,920 In short, in 1835, there was freedom for two new arrivals, but certainly not a quantity. 97 00:11:04,920 --> 00:11:10,740 There is a rather sickening footnote as well to the to the enterprise, 98 00:11:10,740 --> 00:11:16,290 which is you may be aware of, but you may not know this slightly less well known. 99 00:11:16,290 --> 00:11:24,840 Britain was in 1853 following an international arbitration ordered to pay damages to the enterprise's 100 00:11:24,840 --> 00:11:33,060 insurers for wrongfully liberating the enterprise slaves for international law at that time, 101 00:11:33,060 --> 00:11:34,500 recognised slavery. 102 00:11:34,500 --> 00:11:43,020 And according to International Law Chief Justice B.A., Butterfield's decision was made entirely without jurisdiction and was simply wrong. 103 00:11:43,020 --> 00:11:47,640 He should go into international law, have applied American slavery laws. 104 00:11:47,640 --> 00:11:57,600 Thus, all 72 of the new arrivals should have been sent on to South Carolina to bondage for a ship on the high seas. 105 00:11:57,600 --> 00:12:03,570 Sailing under a country's flag is and was considered an extension of the flag country. 106 00:12:03,570 --> 00:12:11,070 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. 107 00:12:11,070 --> 00:12:15,270 So in other words, the enterprise should have been treated by Chief Justice. 108 00:12:15,270 --> 00:12:19,200 Butterfield are still in American waters and thus the Chief Justice. 109 00:12:19,200 --> 00:12:21,480 Butterfield got it wrong. 110 00:12:21,480 --> 00:12:32,430 So Britain was ordered by an arbitrator to pay $17000 compensation to the insurers as reparation for this breach of international law. 111 00:12:32,430 --> 00:12:38,340 But in 1835, Bermuda fortunately ignored wittingly or unwittingly and its problem. 112 00:12:38,340 --> 00:12:44,220 It was completely unwitting. It ignored its international obligations. 113 00:12:44,220 --> 00:12:50,534 For me to follow the English common law and Bermuda began to breathe cleaner air.