Memorial For The Colliers of Scotland
July 23, 1762
Memorial For The Colliers of Scotland.
Considering the Poverty, the Ignorance, and the sequestered State of the Memorialists, it could not be expected, that a Spirit of Liberty should reach them, as soon as the rest of their fellow Subjects: Hence it was, that when the British Legislature was disposed to enfranchise the People of this Country as much as possible, when the wise and salutary Laws, abolishing Ward-holdings and heritable Jurisdictions, were enacted; no Person appeared to represent the hard Condition of the Memorialists, so that, whilst Independence was conferred on others, their Bondage was continued.
But Knowledge gain’d Ground daily, and the lrradiations of Liberty have at last penetrated even to the Memorialists. They are now sensible what the Sweets of Liberty must be; and, as the Reasons of Expediency and public Utility, which were made the Pretexts for enslaving them, have long ago ceased, they are persuaded no Person of Candour, or Humanity, will blame them for exerting themselves to the utmost, to obtain their Freedom.
With this View, the Memorialists laid their Case before the ablest Council, both in England and Scotland: And being advised, that an Application to the Legislature was their proper Remedy, they have contributed a Sum sufficient to defray the necessary Expence, and have determined to petition the House of Commons next Session of Parliament. But before taking this Step, they think it their Duty to submit their Case to the Consideration of the Coal-masters themselves, and the Country in general.
It is not, perhaps, possible to ascertain, with any Degree of Certainty and Precision, how far back the Bondage of Colliers has taken Place in Scotland. Some are of Opinion, that their Slavery is all that remains of the Villainage, which obtained anciently, both in England and Scotland, and, indeed, in most Countries in Europe.
But the Agricolae et Cencaeti, who are the Subject of the 11th Book of the Code, the l’hommes de main morte in France, the homines proprii in Germany, the Villains in England, and the nativi, so fully treated of in the Reg. Maj. and Quon. Attach., our most ancient Law Books, were all Slaves in the strictest Sense; differing indeed from one another in many Things, but all agreeing in this, that they were tied down to particular Farms, in order to secure the Cultivation of the Grounds, that their Master might not be disappointed of the Rent, nor the King of the Land Tax. But all these Sets of Men were Slaves in the strictest Sense: They acquired to their Master; they durst not marry without their Approbation, and their Children were born Slaves. Whereas, the Memorialists stand upon a very different Footing: They acquire to themselves, being capable of holding both personal and real Estates; they may marry at Will, and a Collier Girl becomes free, upon her marrying a free Man: Nor are their Children born Colliers, but such, by working at the Collieries; so that they might be free, if their Parents could afford to breed them to any other Trade. From all which, it is plain, that the Notion which some Lawyers have entertained of the Resemblance, or Analogy betwixt the Memorialists, and the adscriptitii, above mentioned, is altogether groundless and chimerical. And nothing is more certain, than that many of the Memorialists are the Descendants of those who, have been hooked in, upon the Fiction or Stratagem of Law, that working Year and Day at a Coal-work, binds them to it for Life; so that they, at least, cannot be reckoned the Remains of the antient nativi.
The Books of Quan. Attach. and Reg. Maj. tho’ they treat fully, as has been already noticed, of Slaves, properly so called, yet they make no Mention of Colliers. The first Law that, occurs concerning the Memorialists, is, Act James VI. Parl. 18. Cap. ll in these Words,
"Our Sovereign Lord, and Estates of this present Parliament, statutes and ordains, that no Person within this Realm, hereafter shall hire or conduce any Salters, Colliers, or Coal-bearers, without a sufficient Testimonial of their Master whom they last served, subscribed with his Hand, or, at least, sufficient Attestation of a reasonable Cause of their removing, made in Presence of a Baillie or Magistrate of the Part where they came from. And in case any receive, see, hire, supply, or entertain any of the said Colliers, Salters, or Coal-bearers, without a sufficient Testimony, as said is, the Masters from whom they came, challenging their Servants within Year and Day, that the Party from whom they are challenged, shall deliver them back again within Twenty four Hours, under the Pain of £100 to be paid to the Persons from whom they past; and that, for each Person and each time, that they, or any of them shall happen to be challenged, and not delivered, as said is. And the said Colliers, Coal-bearers and Salters to be esteemed, repute and holden as Thieves, and punished in their Bodies, viz. so many of them as shall receive Fore-wages and Fees. And the said Estates in this present Parliament, give Power and Commission to all Masters and Owners of Coal-heughs and Pans, to apprehend all Vagabonds and sturdy Beggars, to be put to Labour.”
It is evident from this Statute, that Colliers were then in a very different Situation from what they are now: There is nothing in it enacting, that working Year and Day at a Coal work, should subject the Colliers to work at it for Life; or that the Child of a Collier should become a bound Collier for Life, immediately upon taking a Creel on his Back. That the Colliers were not then in so miserable a Situation is, indeed, plain from the Remedy introduced by the Statute: for if the Colliers had been at that time adscriptitii, action would have lain at common Law for Recovery of them, without the Interposition of an Act of Parliament.
It is further to be observed, that the last Clause in this Act impowers the Masters of Coalheughs and Pans, to apprehend Vagabonds, and sturdy Beggars, to be put to Labour: Now, it is not to be imagined, that the Legislature would have deprived so many Persons of their Liberty in such vague and Laconic Terms: And yet it cannot well be doubted that it was meant that the Vagabonds and sturdy Beggars, apprehended in Virtue of this Act, should be on the same footing with the Colliers.
From the whole Strain of the Act it is plain that Colliers were then as free as other Men, being only under Contract with their Masters, to work for a certain Number of Years; as the Nature of the Work required, that they should be hired for a longer time than other Servants, and hence they received Fore-wages.
But what seems to prove beyond all Possibility of Contradiction, that at the passing of this Statute, Colliers were as free as other Men, is the Silence of Sir Thomas Craig, who wrote much about the same time, and who would have fully explained the Condition of Colliers, had they been adscriptitii, as the Nature of his Subject required him so to do: He discourses at large of everything conveyed by the feudal Grant; even the Clauses, cum genestis et cum virgultis, do not escape his Notice. But what is rnost material to observe, is, that tho’ he has a long Dissertation upon Coal, yet he does not say one Word upon Colliers.*"
And this is further confirmed by the only other Statute relative to the condition of the Memorialists, viz, Act 56th, 1st Par. Chap. 2d, in these Words,
"Our Sovereign Lord, with Advice and Consent of his Estates of Parliament, ratifies the 11th Act of the 18th Parliament of King James VI. of worthy Memory, made anent Coal-hewers and Salters; with this Addition, that because Watermen who laves and draws Water in the Coal-heugh-head, and Gates-men, who work the Ways and Passages in the said Heughs, are as necessary to the Owners and Masters of the said Coalheughs, as the Coal-hewers and Bearers: It is, therefore, statute and ordained by Our Sovereign Lord, with Advice and Consent foresaid, that no Person shall hire, nor seduce, any Watermen, Windsmen, and Gatesmen, without a Testimonial of the Master whom they serve, under the Pains contained in the former Acts; in all Points: And, because it is found by Experience, that the giving of great Fees hath been a Mean and Way to reduce and bring Coal-hewers from their Masters: It is, therefore, also statute and ordained, that it shall not be lawful for any Coal-master; in this Kingdom, to give any greater Fee than the Sum of twenty Merks in Fee or Bounteth. under any Colour or Pretext. And because the saids Coal-hewers and Salters, and other Workmen within Coal-heughs, within this Kingdom, do lie from their Work at Pasch, Zule, Whitsunday, and certain other limes in the Year, which times they employ in Drinking and Debauchery, to the great Offence of GOD, and Prejudice of their Masters: It is, therefore, statute and ordained, that the saids Coal-hewers and Salters, and other Workmen in Coal-heughs of this Kingdom, work all the six Days of the Week, except the time of Christmas, under the Pain of twenty Shillings Scots, to be paid to their Master, for ilk Days Failzie, by and attour the Prejudice sustained by their said Masters, and other Punishments of their Bodies."
Had the working Year and Day bound a Collier himself, or the taking on the Creel bound his Children for Life, even at the time of making this Law, the Statute would undoubtedly have subjected Watermen and Gatesmen to these Conditions too, seeing they are as necessary as Colliers. But the Act is mute as to these Particulars, and only obliges Watermen and Gatesmen to continue with their Masters under the above mentioned Penalties, which, it is plain, this Act supposes were at that time the only peculiar Circumstances in the Condition of Colliers.
The Memorialists shall make but one Observation more, to show, that at the time of enacting these Statutes they were not in Bondage as they are now; and that is drawn from the Act 1661, Cap. 40. by which, inter alia,
"His Majesty for the further Encouragement of the saids Manufactories, doth, with Advice foresaid discharge all quartering or levying of Soldiers upon Manufactories, or Masters thereof, and that no Person whatsoever entice, reset, or entertain the Servants or Apprentices of the Manufactories, without Consent of their Masters, under the Pains contained in the Acts of Parliament against Coal- hewers, Salters, and their Resetters."
From which Clause it is evident, that the Scots Legislature never imagined, that the Statutes imposing Penalties upon deserting Colliers and their Resetters, would subject them to Slavery; for these Penalties are extended to Weavers, wool-dressers, and the other Servants of Manufactories. Now, no Man was ever yet extravagant enough to think it was meant, that all these People, should be enslaved.
From what has been said, the Memorialists are persuaded it has been sufficiently proved, that the Slavery under which they groan at present, has no Foundation in the Statute Law of this Country; so it must be traced from some other Source. And after the most mature Consideration, they believe it will be found, that it can be ascribed to no other Cause, but the Encroachments of the Coal-masters, which were not only winked at, but even countenanced by our Lawyers and Judges, from an impression at that time, not without foundation, that Hands could not otherwise be got to work at Coal-heughs.
Coals appear to have been scarce in Queen Mary’s time, from Act 84th, Parl. 9th. which strictly forbids the Exportation of Coal, upon a Narrative of its Scarcity and Dearth: And this Act is ratified in King James VI's time, Parl. 6th. Cap. 90th; with this Addition, that the Informer should have a Third Part of Coals so escheated, in Terms of Law.
It is not Matter of Surprise, that in ancient Times, few hands could be got to work at Coal. The People in this Country were in those Days bred up to Arms, not inclinable to any Work whatever, and very averse, no Doubt, to a Species of Labour, that is severe, dangerous, and dirty. This last Circumstance, particularly, would prejudice a haughty People against Coal-working; and we accordingly find, that the Memorialists were not a little ridiculed, on Account of the black, frightful Appearance they make, when recent from their Work."
This Scarcity of Hands gave the Coal-Masters a Pretence for encroaching on the Liberty of Colliers; and our Lawyers supported them, by running a Parallel betwixt the Memorialists and the adscriptitii known in the Roman Law, tho' the Memorialists do not resemble them in any one Particular, except the Penalties imposed on them and their Resetters, by the above Act of James VI. The Hint of which was probably taken from some Laws in the Title of the Cod. De Agricolis.
Sir George Mackenzie was the first of our Lawyers who maintained the Notion of their being adscriptitii in Print. In his Observations on the above Act of James Vl. he says, ‘That this Condition of Colliers and Salters, makes them to be like to the addicti glebae et adscriptitii mentioned in the common Law;’ and in this he has been copied by Lord Bankton in his Institute.
Lord Stair has not adopted the Whim of their being adscriptitii, but lays the foundation of that Slavery upon the Necessity of the Thing. His Words are, Page 730.
"The chief general Presumptions approved by our Customs, are these: First, Liberty is presumed in Opposition to Slavery. Of this Presumption we have but little Use, Slavery being abolished; yet there remain some Vestiges of it in Colliers and Salters, who are astricted to these Services by Law, tho` there were no Paction or Engagement, which is introduced upon the common Interest, these Services being so necessary for this Kingdom, where the fewel of Coal is in most Parts necessary at Home, and very profitable abroad. And seeing we have no Salt of our own, but that which is made by the boiling of Salt Water, Salters are so also astricted; so that Colliers and Salters while they live, must continue in these Services, and the once having them in Service, is a sufficient Ground to detain or recover them; yet so, that is that Possession hath not been lawful, another who did possess, and from whom they did unwarrantably remove, vi, clam, aut precario, may recover them from the unlawful Possessor."
Tho` it was thus agreed, that as many People should be bound to Coal-works as possible, yet they were not enslaved by any other than indirect Methods. Thus it was held by Coal-masters, tho` never so decided by the judges, that working a Year and a Day at the Coal-work, inferred an Obligation to work at it for Life; and that a Collier`s Child became astricted instantly, upon his taking the Creel on his Back, to work at the Coal-work; so that he could not be restored to his Liberty, altho’ he had been made to begin to work in his infancy: Which was, in Effect, making the Children of the Memorialists born Slaves, as they were not in a Condition to breed them to any other Business, or hire Bearers to work under them, which they behoved to do, if deprived of the Assistance of their Children, Both these Positions are Fictions of Law, repugnant to the natural Liberty of Mankind, and the Dictates of Humanity. However, upon the Supposition of urgent Necessity, they took deeper Root every Day, so that the Legislature, at last, went so far into them, as to except the Memorialists from the Act 1701, and to save the Right of Coal-masters by an express Proviso in the Statute of George II, which abolishes heritable Jurisdictions.
The Judges were not more favourable in their Decisions, than the Lawyers were in their Opinions. The Questions that came before them, indeed were always betwixt Coal-master and Coal-master, for not one, till very lately, occurs betwixt Coal-master and Collier. Thus it has been adjudged, that Colliers may not only be claimed by their original Master, to whose Coal they are bound, but that they may be also reclaimed by those in whose Coal-heughs they have happened to work for any Space above one Year; which is, in Effect, finding that such a Service constitutes a Property in them, to every Person to whom they may perform such Service, however many there may be, subject always to be reclaimed from Master to Master, as preferable in Point of Time, until they arrive at their first Master. And a no less unfavourable judgement was given against the Memorialists in February last. The Case was this: Lord Ross sold the Coal of Pendreich to the Marquis of Lothian, and some of the Memorialists were transferred as Pertinents of the Coal of Pendreich, to which they admitted themselves to be bound. The Marquis gave up working the Coal of Pendreich, and required the Memorialists to work at the Coals of Longlaw and Brian, also belonging to him, which they refused to do, as they imagined themselves only bound to the Coal of Pendreich, and prayed his Lordship to grant them a Certificate, in Terms of the Act of James VI, but that was denied them: Upon which, they applied for one to the Sheriff of the County, but he thought proper to refuse their Petition: They then offered a Bill of Advocation to the Court of Session; but Judgement went against them; Which was, in Effect, finding, that the Memorialists could be transferred from one Coal to another, at the Pleasure of their Master; so that they are not addicti to a particular Coal but the personal Slaves of their Master, bound to work and serve him at any Coal he shall be pleased to employ them at.
These decisions proceeded, no Doubt, from a laudable Anxiety to have the Coal heughs in different Parts of the Country properly wrought. And the Memorialists cannot but observe, that there is a great Difference betwixt the Decisions in which they have been considered as Workmen, and those in which they have been considered as Men; that is, in the Cases which affected the working of Coal-heughs. Stretches have been made, by which the Memorialists conceive themselves aggrieved; but when the Judges were not impressed with Considerations of public Expediency and Necessity, the Memorialists have had all the favour and Tenderness shown them they could desire. Thus, in a very late Case, the Court of Session found, that a Collier might be a Counsellor in a Royal Burgh, and, as such, vote in the Election for a Member of Parliament for that Burgh, Falconar, 20th February 1747, Magistrates of Rutherglen contra Veitch. Now, as it is a Rule, that all who can elect, may be elected; it seems to be a Consequence of this Judgment, that a Collier may come to be a Member of the House of Commons.
The Memorialists flatter themselves, that every impartial Person will be convinced, by what has been above represented, that the Slavery of Colliers has never received the Sanction of the Legislature; but is entirely owing to the encroachments of the Coalmasters, countenanced by our Judges and Lawyers, from a laudable Anxiety to have the Country well supplied, with Coal. lf this be the Case, there remains not the least Pretext for continuing their Slavery; now that it is notorious, Numbers are got to work at Coal, when the Coalmasters are willing to stipulate, that the Colliers shall be in no Danger of Slavery from their working Year and Day: And if such Slavery was abolished by Law, many more would commence Colliers, as their Wages are higher than those given to ordinary Workmen.
It is clear, even to Demonstration, that such of the Memorialists, as are descended of those who were enslaved upon this working Year and Day, cannot be numbered amongst those who are said to be the Remains of the antient nativi.
But, at any Rate, supposing the rest of the Memorialists to be the Descendants of the nativi, their Bondage ought not to be continued: For,
1st, It is inconsistent with British Iiberty, and repugnant to the Spirit of Christianity; which last Consideration has abolished Slavery throughout all Europe.
2dly, It is this Slavery which causes the Scarcity of Colliers; for the Apprehension of it deters Numbers, who would otherways be very willing to work at Coals. And the Memorialists, for the same Reason, have, for some Time by-past, bred up as many of their Children as they possibly could to other Employments.
3dly, It cannot be controverted, that several Gentlemen who opened Coal-works lately, and agreed, that those who wrought at them should be in no Danger of Slavery, have had as many Hands as could be expected, considering the Circumstances of the Country; so that several Coals are wrought by free Men, in the same Way as the Coals in England are. The Consequence of all which, is, that if the Memorialists were set free, the Price of Coals would be lessened every where; and particularly, the Memorialists are in Condition to prove, that the People of Edinburgh would have their Coals 2 d. per Hundred Weight cheaper than at present. From all which, it is evident, that it is the Interest of the Country, and even of the Coal-masters themselves, as well as of the Memorialists, that their Slavery should be abolished.
FI N I S.