{"collection":"philosophy-ethics","full_text_available":true,"graph_url":"https://unchartedknowledge.5gfusion.net/v2/api/page/gutenberg_69256/graph","html_url":"https://unchartedknowledge.5gfusion.net/v2/page/gutenberg_69256","id":"gutenberg_69256","license":"Public Domain (US)","rights_basis":"gutenberg_metadata_copyright_false","source":"gutenberg","source_url":"https://www.gutenberg.org/ebooks/69256","summary":null,"tags":["Category: History - British","Category: History - Modern (1750+)","Category: Law & Criminology","Category: Philosophy & Ethics","Category: Politics","Slavery -- Law and legislation -- Great Britain","Slavery -- Legal status, laws, etc. -- Great Britain"],"text":"TRANSCRIBER\u2019S NOTE\n\n  Italic text is denoted by _underscores_.\n\n  The original text used the character \u017f (long-form s); these have been\n  replaced by the normal s in this etext.\n\n  Footnote anchors are denoted by [number], and the footnotes have been\n  placed at the end of the book.\n\n  Some minor changes to the text are noted at the end of the book.\n\n\n\n\n                            CONSIDERATIONS\n\n                                ON THE\n\n                             NEGROE CAUSE\n\n                         COMMONLY SO CALLED,\n\n                             ADDRESSED TO\n\n                         THE RIGHT HONOURABLE\n\n                           LORD MANSFIELD,\n\n                  LORD CHIEF JUSTICE of the COURT of\n                          KING\u2019S BENCH, &c.\n\n                    By SAMUEL ESTWICK, A. M. LL.D.\n         Member of Parliament for the Borough of _Westbury_.\n\n                          THE THIRD EDITION.\n\n                               LONDON:\n                Printed for J. DODSLEY, in PALL-MALL.\n\n                           M.DCC.LXXXVIII.\n\n                            [Price 2_s._]\n\n\n\n\n_ADVERTISEMENT_\n\nTO THE\n\nREADER.\n\n\n_The judgment that was given in the case of Somerset and Knowles, so\ncontrary to the received opinions at that time, and to the general\nsense of the nation before, having laid the foundation upon which\nall the various speculations that upon this subject have since\nbeen raised, and which are at length so magnified and enlarged as\nto become the object of a Parliamentary Inquiry; it is imagined,\nthat a review of some of the arguments which were made use of on\nthat occasion may not, in the present moment, be thought either\nimpertinent or unseasonable._\n\n_It is under this idea then, that the following Considerations are\nagain brought forward to the public notice: and although their\nprimary object was to fix and ascertain the ground upon which the\nOwner claimed a right to his Negroe, and insomuch to develope the\nsubject from the mist and mystery with which it was want to be\nsurrounded; yet in the course of their perusal it will, perhaps, be\nfound, that there are not wanting answers to some of the most leading\nand popular objections of the day; that there are some observations\nand remarks, as new in themselves, as they have been and are still\nunanswered; and withal, that no part of the performance is of a\ncomplexion that can do injury, that may not produce some good, and\nof which the author, notwithstanding the distance of time from its\npublication, feels that he has either cause to be ashamed, or reason\nto repent._\n\n\n\n\nPREFACE.\n\n\nThe first Edition of the following Considerations on the Negroe\nCause was written with haste, and published in a hurry. The hope of\nseeing some much abler pen than mine engaged in the discussion of\nso important a question, and yet seemingly so little understood,\nwithheld me from the undertaking; till disappointment made it the\nresolution of an hour, and want of time the effect of a few days\nattention only. It was evident that whatever was to have been\nsuggested on the subject, ought to have been known antecedently to\nthe legal decision of the Case: but led on by the expectation of the\nmore useful endeavours of others, already was the Term, in which\njudgment was to be given, treading closely on my heels, without\nmy having taken one single step in advance of the design. Thus\ncircumstanced, such dispatch became necessary as could not fail to\nproduce errors, imputable both to me and the printer. Whilst one part\nof the pamphlet was printing, the other was preparing for the press:\nbut even this expedition had not its desired effect. The Judgment\nwas beforehand with the Publication: whereby the Considerations\nthemselves were deprived of their object, and I, in some measure,\nfoiled in my purpose. Upon finding however that the very grounds of\nmy argument (to wit, the opinions of the Lord Chancellors Hardwick\nand Talbot) were the subjects of _due attention_ to the Court, and\nthat the determination rested on this particular Case _only_, from\ncircumstances of insufficiency arising out of the return made to the\nwrit of Habeas Corpus, I was induced to suffer this performance to\nmake its appearance to the public eye, though, like Hamlet\u2019s Ghost,\nwith all its imperfections on its head.\n\nBut being now called upon for a second Edition, I have carefully\ncorrected the errors of the first, so far as they were perceiveable\nto me. I have considerably enlarged the work itself. I have inserted\nseveral notes, in some of which the principles of the late published\nargument of Mr. Hargrave, and the argument itself, as applied to the\nmerits of this question, are _shortly_ examined, though (with what is\noffered in the text) it is to be presumed, _fully_ refuted.\n\nSupposing too, that the judgment of the Court of King\u2019s Bench in this\ncase might be no improper addition, I have, from the most authentic\ncopy I was able to procure, inserted it here: taking the liberty at\nthe same time of making some few occasional remarks upon it.\n\nThe following _is said_ to be the substance of Lord Mansfield\u2019s\nspeech in the case of Somerset and Knowles: \u201cWe pay due attention to\nthe opinion of Sir Philip Yorke and Mr. Talbot in the year 1729, by\nwhich they _pledged_ themselves to the British Planters for the legal\nconsequences of bringing Negroe-slaves into this kingdom, or their\nbeing baptized;\u201d which opinion was repeated and recognized by Lord\nHardwick, sitting as Chancellour, on the 19th of October 1749, to the\nfollowing effect: He said, \u201cthat Trover would lay for a Negroe-slave:\nthat a notion prevailed, that if a slave came into England, or\nbecame a Christian, he thereby became emancipated; but there was no\nfoundation in law for such a notion: that when he and Lord Talbot\nwere Attorney and Solicitor General, this notion of a slave becoming\nfree by being baptized prevailed so strongly, that the Planters\nindustriously prevented their becoming Christians: upon which their\nopinion was taken; _and upon their best consideration they were both\nclearly of opinion_, that a slave did not in the least alter his\nsituation or state towards his Master or _Owner_, either by being\nchristened, or coming to England: that though the statute of Charles\nII. had abolished Tenure so far, that no man could be a _Villein\nregardant_; yet if he would acknowledge himself a _Villein_ engrossed\nin any Court of Record, he knew of no way by which he could be\nentitled to his freedom, without the consent of his Master. We feel\nthe force of the inconveniences and consequences that will follow\nthe decision of this question: yet all of us are so clearly of one\nopinion upon the _only_ question before us, that we think we ought\nto give judgment without adjourning the matter to be argued before\nall the judges, as usual in the Habeas Corpus, and as we at first\nintimated an intention of doing in this case. The only question then\nis, _Is the Cause returned sufficient for the remanding him? If not_,\nhe must be discharged. The Cause returned is, the _slave_ absented\nhimself and departed from his master\u2019s service, and refused to return\nand serve him during his stay in England; whereupon, by his master\u2019s\norders, he was put on board the ship by force, and there detained in\nsecure custody, to be carried out of the kingdom and sold. So high\nan act of dominion must derive its authority, if any such it has,\nfrom the law of the kingdom _where_ executed. A foreigner cannot\nbe imprisoned _here_ on the authority of any law existing in his\nown country. The power of a master over his servant is different\nin all countries, more or less limited or extensive; the exercise\nof it therefore must always be regulated by the laws of the place\nwhere exercised. The state of slavery is of such a nature, that it\nis incapable of being now introduced by Courts of Justice upon mere\nreasoning, or inferences from any principles natural or political;\nit must take its rise from positive law; the origin of it can in no\ncountry or age be traced back to any other source. Immemorial usage\npreserves the memory of positive law long after all traces of the\noccasion, reason, authority, and time of its introduction, are lost;\nand in a Case so odious as the condition of slaves must be, taken\nstrictly, the power claimed by this return was never in use here:\nno master ever was allowed here to take a slave by force to be sold\nabroad because he had deserted from his service, or for any other\nreason whatever; we cannot say, _the Cause set forth by this return_\nis allowed or approved of by the laws of this kingdom, and therefore\nthe man must be discharged.\u201d\n\nI must confess, I have been greatly puzzled in endeavouring\nto reconcile this judgment with this state of it, and with my\ncomprehension.\n\n\u201cWe pay due attention to the opinion of Sir Philip York and Mr.\nTalbot,\u201d are the words of the Noble Lord who delivered the judgment\nof the Court; and yet the judgment is, in operation and effect,\ndirectly subversive of the opinion. Now I must take for granted that\nthis opinion would not have been cited, especially in so affirmative\na manner, if it had had nothing at all to do with the Case then\nbefore the Court: because such citation would have been unmeaning\nand unnecessary. This being admitted, it follows, that the law laid\ndown in this opinion was either the law of the Case, or it was not.\nIf it were the law of the Case, the judgment would have been governed\nby that law, and consequently contrary to what it is. If it were\nnot the law of the Case, in order to shew what the law is, and that\nthe law and the judgment might correspond with each other, as cause\nand effect, it would seem, _ex necessitate rei_, that the doctrine\nadvanced in this opinion should have been set aside by the superior\nforce of legal argumentation and authority. But the reasoning upon\nthe judgment stands thus: In the Premises this opinion is cited as\nauthority; then, without any middle term denying that authority, the\nconclusion is, by the judgment, that it is no authority at all. Under\nthese problematical circumstances the only solution possible to me\nwas, that there might be two decisions intentionally contained under\none judgment: that is to say, that the opinion of Sir Philip York\nand Mr. Talbot, was the law upon the general merits of the question;\nand that this judgment of the Court was the law upon this particular\nstate of it. Thus for instance: if the return made to the writ of\nHabeas Corpus in this Case had denied the lawfulness of the writ\nitself, and Mr. Steuart had claimed Somerset upon the ground only\nof being his commercial _property_; then the opinion of Sir Philip\nYork and Mr. Talbot had operated as law and authority: but as the\nreturn had admitted the right of slavery, and Mr. Steuart had claimed\nSomerset as his slave, there being no laws of slavery now _in use_\nin this country, either for Negroes, or for any other species of the\nhuman being, the judgment of the court was, _from the insufficiency\nof the Cause returned_, the law of this Case.\n\nBut no sooner had this reconciliation taken place in my mind, than\nanother perplexity followed. In the recital of the opinion recognized\nby Lord Hardwick, sitting as Chancellour, it is made to conclude\nthus: \u201cthat though the Statute of Charles II. had abolished Tenure\nso far that no man could be a _Villein regardant_, yet if he would\nacknowledge himself a Villein ingrossed in any Court of Record, he\nknew of no way by which he could be entitled to his freedom without\nthe consent of his Master.\u201d\n\nNow, by connecting this latter with the former part of the opinion,\nin the manner it is done, it appears, as if Lord Hardwick meant\nto declare, that the state or situation of Negroes towards their\nmasters or owners arose out of, and was founded upon, the remains of\nthe antient laws of villenage in this country. That Lord Hardwick\nmight have said what is here stated, in order to shew (by way of\nillustration of the Case upon which he was then arguing) that even\nan Englishman might still become a slave in this country, _if he\npleased_, I cannot deny: but with any intention to prove that the\ncondition of Negroes proceeded from, and was the same with, the\ncondition of villeins, is, I must assert, either the mistake of the\nperson from whose notes this speech was taken, or the intention of\nhim to puzzle and perplex the Case: for it is manifestly impossible\nthat the Court could have put so much self-contradiction and\nignorance of the law in the mouth of so wise and so great a lawyer.\nHis Lordship says, \u201cthat Trover will lie for a Negroe slave.\u201d Now,\ncan any thing be more expressive of the law and condition of Negroes\nthan this is? What the nature of an action of Trover is, and what\nkind of property is required in a plaintiff to maintain such an\naction, every Tyro of the law must be acquainted with. Would his\nLordship have said, that Trover would lie for a villein? Every Tyro\nof the law knows that it would not. But if a Negroe and a villein\nwere governed by the same laws, Trover would lie for a villein. His\nLordship\u2019s own words therefore, and not this combination of them, are\nthe best comment upon his meaning; and he in me, _non tali auxilio\neget_, &c. It is enough that I have given the clew; the reader will\nunravel the rest himself.\n\nI have now only a short word or two more to add, in address to the\nreader; relying, from my own consciousness, upon his candour, that\nwhatever errors of the head he may discover, he will impute nothing\nthat is wrong to the dictates of my heart. It is not the want of\nhumanity, it is not the want of feeling, but the possession of both,\nwith the love of truth, that has given birth to these Considerations.\nMy motives have been, to shew that America does not afford that scene\nof barbarity, which misrepresentation would have painted upon it:\nthat cruelties and distress are to be found in much greater excess\neven in this _elysium_ of liberty: that whatever is the state and\ncondition of Negroes, it is Great Britain and not America that is\nresponsible for it: that this therefore is a British, and not an\nAmerican question; as well it might be, since, if I may be allowed to\nreason chymically upon the occasion, whatever property America may\nhave in its drugs, it is Great Britain that receives the essential\noyl extracted from them. These have been my views. I neither meant\nto condemn or approve the state and condition of Negroes. I have\nappealed to the law: if the traffic made of them be as agreeable\nto right reason as it is according to law, I am glad of it; if it\nbe not, let state necessities justify state tricks. But I meant an\napology for, and not a panegyrick upon, myself.\n\n\n\n\n                            CONSIDERATIONS\n                                ON THE\n                          NEGROE CAUSE, &c.\n\n\nMY LORD,\n\nBeing, both by birth and fortune, connected with one of the Islands\nin America, I was led, somewhat interestedly as your Lordship may\nsuppose, to attend to the arguments that were lately offered in the\nCourt of King\u2019s Bench, in the Case of Somerset the Negroe _versus_\nKnowles and others. It was a new case, said to be full of concern\nto America; and it had engrossed much of general expectation. My\nobject therefore was that of information: but, without meaning to\nlessen the labours, or depreciate the merits of the learned counsel\nconcerned therein, I must confess, that the lights thrown on the case\ndid by no means appear to me as, on either side, decisive of the\npoint in question[1]. It is true that a vast and extensive variety of\nreading was shewn and discovered: the profoundest depths of learning\nand science were fathomed and explored: lawgivers, philosophers,\ncivilians, from all historic existence, were brought to light and\nexamined: the examples, definitions, and opinions, which Moses,\nAristotle, Justinian, Grotius, Pufendorff, and the rest, had given\nof slavery, were cited, explained, and enlarged upon: the edicts\nand regulations of French, Spanish, German, Flemish, and Dutch\npolice on this head were mentioned and produced. But, my Lord, with\nall due deference and submission, may I ask, how applicable was\nthis antiquated and foreign doctrine to the case then under your\nLordship\u2019s contemplation? The politics of Aristotle are not the rules\nof the Court of King\u2019s Bench; _neither is Roman jurisprudence the\nlaw of that court_. As a display of general knowledge, it had with\nme, as it must have had with every one present, its great abundance\nof merit and commendation; and I had followed the learned gentlemen,\nwith the highest pleasure, in their travels and pursuits abroad\nin search of matter of illustration, if the case had been brought\nhome with them at last, and rested on its own _native_ ground and\nfoundation. But herein, my Lord, I found myself unsatisfied and\ndisappointed: for how the question remained with your Lordship as a\npoint of law for the judgment of the Court, I own, I was unable to\ncomprehend, or to learn. It is therefore, my Lord, that I now take\nthe liberty to offer the following Considerations to your Lordship\u2019s\nnotice and observance; trusting to the importance of the subject, and\nto your wonted candour, for my apology and pardon in the attempt.\n\nI have read, my Lord, to distinguish, and have been ever taught to\nknow, that the Lord Chief Justice of the Court of King\u2019s Bench is the\ngreat and first expounder of the laws of this Realm; great and first\nin dignity and in office; in your Lordship\u2019s person, great and first\nprofessedly in capacity also. Of these laws then, my Lord, I have\napprehended that there are but two kinds, however sub-divided into\nsorts or species: the unwritten, or common law, of which judicial\ndecisions are the evidence: or the written or statute law, otherwise\ncalled acts of parliament. Now, my Lord, so far as this case is\nreferable to either of these establishments, so far it lies before\nthe Court, and falls under the cognizance of your Lordship. This is\nthe source of enquiry leading to your judgment and determination;\nand all without the circle of this, I conceive to be inapposite and\neccentric. The first question then, that would seem to arise on this\nposition, is, What is the common law of the land respecting the\ncase in issue, _considered as a case of slavery_? It was said, I\nremember, by one of the counsel, that the present state of slavery\namong Negroes was totally different from the ancient condition of\nvillenage; that it was a new species of slavery utterly unknown to\nthe common law of England.[2] In this opinion I readily coincide, and\nagree with the learned gentleman. The next question is, What do acts\nof parliament say on this head? I believe it must be said for them,\nthat they are, _enactively_, if I may be allowed the expression,\nsilent. If this be so, then the conclusion will operate in the\nnature of a plea to the jurisdiction of your Lordship\u2019s Court. If\nthe case be unknown to the common law, and acts of parliament are\nsilent thereupon, what basis must your Lordship\u2019s judgment take?\nWhere there is no law, there can be no remedy. If the common law\nbe defective, it is the business of acts of parliament to supply\nthe defects: but until those defects are supplied, _sub judice lis\nest_, and the matter must remain undetermined. Your Lordship may\nhowever tell me, that, where positive law is wanting, whereupon to\nground the decisions of a Court, recourse may be had to the maxims\nand principles of law, to the spirit of the constitution. The result\nof this, my Lord, at best, is but matter of opinion; besides, cases\nfounded on the self-same principles will often have very different\ndeterminations, according to the difference of circumstances, and the\nalteration or change of times. Thus, if it had even been an original\nmaxim of the common law, that slavery was incompatible with the frame\nand constitution of this country, yet it does not therefore follow,\nthat occasions have not since arisen to combat with this principle,\nand to justify particular conclusions differing from these general\npremises. For instance, my Lord, the impressing of seamen, is an\nidea as heterogeneous to the nature and essence of this government,\nas slavery painted on the blackest ground can be. It is slavery\nitself, in its very definition; and what signifies the name, says\nHudibras, since the thing is the same? But the indispensableness of\nthe measure has nevertheless (to continue the metaphor) given colour\nto the practice, and it is now seen in another light and view. But\nto return: If your Lordship should be of opinion, for opinion it\nmust be, if there is no positive law to ground your judgment upon,\nthat Negroes in this country are free, I will place in opposition\nto this, the opinions of the late Lord Chancellour Hardwick, and\nhis predecessor the Lord Chancellour Talbot, to wit, that Negroes\nin this country are not free. Your Lordship perceives, that I take\nyour opinion upon supposition only; the other opinions are well-known\nfacts. To search then for the grounds of your opinion, without the\ncertainty of its being so, would be now premature and unnecessary:\nbut, knowing the opinions of these two great oracles of the law,\nit is of necessity to conclude, that they had the most sufficient\nfoundation for them, seeing that it is allowed on every hand, that no\nopinion was ever given in any case whatever with greater solemnity,\nor more deliberation, than these were. Now, my Lord, to investigate\nthe reasons of these opinions, is one way, perhaps, to arrive at\nthe truth: but to follow men like these, in their researches, is a\nprocedure fitted only to abilities such as your Lordship\u2019s are. As\nconjecture however is open to all, though positive knowledge is but\nthe gift of a few; I shall therefore venture to suggest what might in\npart have led the ideas of these great and wise men to the conclusion\nwhich they have drawn, namely, that Negroes in this country do not\nbecome free. I have before stated, my Lord, and have agreed with one\nof the learned counsel, that the condition of slavery among Negroes\nis unknown to the common law of this land: that it is a new species\nof slavery, which has arisen within, and not beyond, the memory of\nman, as is necessary to the descriptive quality of this kind of\nlaw; and, therefore, being not under the comprehension, it cannot be\nwithin the absolute provision of it, however reduceable thereto it\nmay be made, by analogy, implication, or construction. I have said\ntoo, that acts of parliament are silent on this head. I have repeated\nwhat I had before stated and said, in order to draw this inference:\nthat although the slavery of Negroes is unknown to the common law of\nthis country, and acts of parliament are silent thereupon; yet _the\nright_ which Mr. Steuart claims in the Negroe, Somerset, is _a right_\ngiven him by act of parliament.\n\nI must then apprize your Lordship, that from this instant it is my\nintention to drop the term Slavery, at least as a term in argument\nwith me. It is an odious word, that engendered this law-suit, and\nnow feeds and supports it with the fuel of heated passions and\nimaginations. Instead therefore of such prejudiced and unpopular\nground, whereupon the case has hitherto been made to stand, I shall\ntake the liberty to remove its situation, to change its point of\nview, and to rest it on the land of _commercial Property_; from\nwhence, perhaps, it will be seen, not only in a less offensive light,\nbut where also it may find a foundation more solid and substantial\nfor its support.\n\nIt is matter of course, my Lord, to say, that you are well acquainted\nwith all the acts of parliament relative to the royal African company\nof England, from its establishment by charter in the reign of Charles\nthe Second down to the present time[3]. Now, my Lord, the end of\nthis company was trade: the object of that trade Negroes, as the\npreamble to the act of the 23d of Geo. II. c. xxxi. thus expressly\ndeclares: \u201cWhereas the trade to and from Africa is very advantageous\nto Great Britain, and necessary for supplying the plantations and\ncolonies thereunto belonging with a sufficient number of Negroes, at\nreasonable rates, it is therefore enacted, &c. &c.\u201d Whatever then,\nmy Lord, is matter of trade, your Lordship knows, must be matter\nof property. The idea of the one is necessarily involved in the\nother. But, my Lord, these acts have not been content with this\ngeneral construction: they have gone farther, and have themselves\nset the mark and stamp of property upon Negroes. Whether, my Lord,\nthe Legislature is justifiable herein, or whether it has authority\nby the laws of nature to do this, is not for me to determine. It\nis, perhaps, a right, like many other civil rights, established by\npower, and maintained by force: but this is matter of speculation\nfor the speculative. I here contend only, that the fact is as I\nhave stated it to be; and as it will appear by the statute of the\n25th of Geo. II. c. xl. \u201cwhich was made for the application of a\nsum of money therein mentioned, granted to his Majesty, for making\ncompensation and satisfaction to the Royal African company of\nEngland, for their charter, lands, forts, castles, slaves, military\nstores, and all other their effects whatsoever; and to _vest_ the\nlands, forts, castles, slaves, military stores, and _all other\ntheir effects_, in the company of merchants trading to Africa;\u201d and\nwherein it is enacted, that \u201cthe royal African company of England,\nfrom and after the tenth day of April one thousand seven hundred\nand fifty-two, shall be, and they are hereby, absolutely divested\nof and from their said charter, lands, forts, castles, and military\nstores, _canoe-men_, _castle-slaves_, and all _other their estate,\nproperty, and effects_ whatsoever; and that all and every the\nBritish forts, lands, castles, settlements, and factories, on the\ncoast of Africa, beginning at Port Sally, and extending from thence\nto the Cape of Good Hope inclusive, which were granted to the said\ncompany by the said charter, or which have been since erected or\npurchased by the said company; and all other the regions, countries,\ndominions, territories, continents, coasts, ports, bays, rivers,\nand places, lying and being within the aforesaid limits, and the\nislands near adjoining to those coasts, and comprehended within the\nlimits described by the said charter; and which now are, or at any\ntime heretofore have been, in the possession of, or claimed by, the\nsaid royal African company of England, together with the cannon\nand other military stores, _canoe-men_, _castle-slaves_, at and\nbelonging to the said forts, castles, settlements, and factories,\nparticularly mentioned and set forth in the first schedule to this\nact annexed (such stores as have been made use of in the service of\nthe forts, and such _canoe-men and slaves_ as may have died since the\ntaking of the said survey, only excepted); and also all contracts\nand agreements made by or for, or on the behalf of, the said royal\nAfrican company, with any of the kings, princes, or natives, of any\nof the countries or places on the said coasts; and _all other the\nproperty, estate, and effects_ whatsoever, of the said royal African\ncompany, shall, from and after the said tenth day of April one\nthousand seven hundred and fifty-two, _be vested in_, and the same\nand every of them are and is hereby _fully and absolutely vested in\nthe said corporation_, called and known by the name of \u2018The company\nof merchants trading to Africa,\u2019 and their successors, freed and\nabsolutely discharged of and from all claims and demands of the said\nroyal African company of England, and their creditors, and every of\nthem, and of all and every person or persons claiming under them, or\nany or either of them.\u201d\n\nHere, my Lord, the _legal nature_ of Negroes, if I may so speak, is\nfully established and clearly ascertained, by act of parliament.\nYour Lordship perceives, that they are _in hoc verbo_ declared to\nbe property, and are vested as goods and chattels, and as other\neffects are, in owners prescribed for them. If it is observed, my\nLord, that the term Slave is made use of, and recognized by this act\nof parliament; it is answered, not relatively so, as to a state of\nslavery, but descriptively only of such things as shall be deemed\nthe property and effects of this company. The statute, my Lord, of\nthe 5th of His present Majesty, ch. xliv. enacts, \u201cthat such parts\nof Africa as were ceded by the last treaty of Paris, together with\nthe goods, slaves, and other effects thereunto belonging, and which\nwere, by a former act, vested in the company of merchants trading\nto Africa, shall now become the property of the Crown;\u201d so that the\nKing, as well as this corporation of merchants, are, by the law of\nthe land, possessed, and are now the actual and rightful owners, of\na very considerable number of Negroes, under the afore-mentioned\ndescription, of canoe-men, castle-slaves, women, children,\ncarpenters, and other artificers, particularly set forth in schedules\nannexed to the afore-mentioned acts. It is also enacted, \u201cthat the\ntrade to Africa shall be free and open to all His Majesty\u2019s subjects,\nwithout preference or distinction;\u201d and it is further provided,\n\u201cthat these acts shall be taken and deemed as public acts, and shall\nbe judicially taken notice of as such by all Judges, Justices, and\nother persons whatsoever, without specially pleading the same.\u201d Thus\nfar, my Lord, do acts of parliament extend in the confirmation and\nestablishment of this trade to Africa. I shall now beg leave to cite\none statute more, in order unquestionably to prove what the sense of\nthe Legislature of this country is, with respect to the state and\ncondition of Negroes. This statute, my Lord, is the 5th of Geo. II.\nc. viith, wherein (it being made for the more easy recovery of debts\nin His Majesty\u2019s plantations and colonies in America) it is enacted\n\u201cthat, from and after the twenty-ninth day of September one thousand\nseven hundred and thirty-two, the houses, lands, _Negroes_, and other\nhereditaments and real estates, situate or being within any of the\nsaid plantations, belonging to any person indebted, shall be liable\nto, and chargeable with, all just debts, duties, and demands, of what\nnature or kind soever owing by any such person to His Majesty, or any\nof his subjects, and shall and may be assets for the satisfaction\nthereof, in like manner as real estates are by the law of England\nliable to the satisfaction of debts due by bond or other specialty,\nand shall be subject to the like remedies, proceedings, and process,\nin any court of law or equity, in any of the said plantations\nrespectively, for seizing, extending, felling, or disposing, of any\nsuch houses, lands, _Negroes_, and other hereditaments, and real\nestates, towards the satisfaction of such debts, duties, and demands,\nin like manner as personal estates in any of the said plantations\nrespectively are seized, extended, sold, or disposed of, for the\nsatisfaction of such debts.\u201d\n\nHerein then, my Lord, is not to be found even the trace of an idea\nof slavery considered as such by Parliament, among Negroes: but, on\nthe contrary, what their legal state and condition is, is conceived\nand expressed in terms so plain and clear, so explicit and precise,\nthat the most sceptical cannot doubt the meaning, nor the most simple\nfail to understand it. They are, as houses, lands, hereditaments,\nand real estate, assets; and, in like manner as personal estate, to\nbe disposed of, for the payment of debts due to the King and his\nsubjects.\n\nUpon this state and exposition then, my Lord, of these several\nstatutes, it would seem that I am well warranted, by their authority,\nin my idea, that the right which Mr. Steuart claims in the Negroe\nSomerset, is a right given him by act of parliament; and confirmed in\nmy proposition, that this is a case of property.\n\nBut, my Lord, in order fully to establish this doctrine, it may\nperhaps be expected, that I should not only shew what the law is,\nbut that I should prove also what the law is not; and this must\nnecessarily lead me to reason somewhat more closely on the subject.\n\nI am aware it may be objected, my Lord, that property in Negroes so\nvested, is a property created in Africa for the use and purpose of\nthe colonies in America: from whence a question will be deduced,\nWhether Negroes are property in England?\n\nIt appears, my Lord, that a trade is opened, with the sanction, and\nnow under the protection of parliament, between the subjects of\nGreat Britain and the natives or inhabitants of Africa. The medium\nof this trade on the one hand are, manufactures, goods, wares, and\nother merchandize: on the other, captive Negroes, or slaves; which,\nfor these commodities, are given in barter and exchange. It will\nbe allowed, I presume, my Lord, that these British traders, or\nmerchants, have an absolute property in their merchandize; to truck\nand to traffic with this merchandize is the legal institution of the\ntrade: it will be absurd then to deny, that they have not an equal\ninterest in the thing received, as they had in the thing given. To\navoid this dilemma then, the objection recurs; that, in Africa they\nmay have an interest, in America they may have the same, in Europe\nthey have none: but assertion without proof, is argument without\nweight. Where is the law that has drawn this line of distinction? Is\nthere any act of parliament, or clause of an act of parliament, that\nhas fixed and described the zones or climates wherein property in\nNegroes may be held, or where it may not be held? Until I am better\ninformed, my Lord, I must take for granted, that no such law exists;\nand if no such law does exist, the manifest conclusion is, that\nwhere property is once legally vested, it must legally remain; until\naltered or extinguished by some power co-equal to that which gave\nit[4].\n\nBut as it may perhaps be to the purpose, my Lord, to try the force\nand effect of these acts of trade referred to, I will, with your\nLordship\u2019s indulgence, state a case or two, whereby their operation\nin this country might be felt and perceived.\n\nSuppose, my Lord, that a fleet of merchant ships belonging to the\nAfrican company, containing twenty thousand Negroes on board (more\nor less, it is of no matter), bound from Africa to America, should,\nby strange, contrary, and adverse winds, be driven and wrecked upon\nthe coast of England; that the ships were lost and destroyed, but\nthat the Negroes had been landed in safety on this shore of freedom:\nwould the African company, my Lord, be justified and entitled to\nre-ship these Negroes in other vessels, to the end that they might\nbe conveyed to their destined ports in America? Or, would the pure\nair of this country, as has been insisted on, set them, with caps of\nliberty on their heads, free and at large; thereby robbing, for so I\nmust call it, these merchants of their property to the amount of one\nmillion of money, at the allowance, and on the moderate computation,\nof fifty pounds price for each individual Negroe? In this kingdom\nof commerce, my Lord, where the rights of merchants are so well\ndistinguished, and the laws of trade are so minutely known, I should\npresume that the case would not admit of a question. Of what use\nwould the charter of this company be to them, if the laws protective\nof that charter should be found inadequate and ineffectual to the\nmaintenance and security of their property? But again: it has been\nobserved, that by the statute of the 5th of George III. chap. xliv.\na number of canoe-men, and other Negroes, in Africa, were vested in\nthe Crown. Now, by canoe-men, I suppose, my Lord, are meant, African\nsailors. Suppose then, that one hundred, for example, of these\nsailors should, by some contrivance or other, find their way into\nEngland; would the King, my Lord, have authority to remand them to\ntheir place of duty? or, would writs of Habeas Corpus, in despite of\nthis act of Parliament, protect them here; thereby determining the\nright of the Crown in them? The case, my Lord, speaks and determines\nfor itself. Wherein then, my Lord, differs the case of Mr. Steuart\nfrom these? Their importance is greater, but the principle throughout\nis the same. I believe it is not denied that Mr. Steuart was the\n_bona fide_ purchaser of Somerset, in the legal course of trade. I\ndo not apprehend that any evidence was offered to shew that he had\nstolen him, or that he came by him otherwise surreptitiously. If\nmy memory does not fail me, the property was proved, by affidavit,\nbefore your Lordship; or it was stated in the return made to the\nWrit of Habeas Corpus; but in either way it is of no concern, since\nthe title-deeds are not now before the Court as the objects of\nLitigation[5].\n\nHere then, my Lord, without farther disquisition, I might venture\nto rest the defence of Mr. Steuart, and therein the law of the case\nitself. The reasoning, perhaps, may be said to be new, and it is\nopinion only of my own that supports the doctrine: but, I trust,\nthat, upon examination, it will be found to be not therefore the\nless conclusive. However, as I am upon the subject, it may not be\namiss that I should pursue it somewhat farther; and, by extending the\nchain of enquiry, strengthen and enforce the arguments that have been\nalready offered and applied. It was said, by one of the plaintiff\u2019s\ncounsel, that municipal laws were binding only in the state wherein\nthey were made; that, as soon as a member of that state was out of\nit, they ceased to have their influence on him; and the laws of\nnature of course succeeded to him. As a general proposition, my\nLord, this might have had its admission; but even as such, it is not\nwithout its exception. I think I have the most classical authority\nof the law to say otherwise. For instance, allegiance, which is the\nduty that every subject owes to the sovereign, or sovereignty, of\nthat particular state to which he belongs, is a municipal law; and\nyet, neither time, place, nor circumstance, can alter, forfeit, or\ncancel, the obligation. An Englishman (says Judge Blackstone)[6],\nwho removes to France or to China, owes the same allegiance to the\nKing of England there as at home, and twenty years hence as well as\nnow. But, my Lord, with regard to the particular application of this\nproposition, when the gentleman endeavoured to make a distinction\nbetween the laws of the colonies and the laws of England, in my\napprehension he was extremely mistaken. I fancy the relationship\nand dependency of the children colonies on their mother country did\nnot occur to his mind. The circumstance of their having internal\nlaws of their own, by no means argues a difference in those laws,\nindependent of the laws of England. As well might it be said, that\nthe laws of England are not the laws of the county of Kent, because\nby the custom of gavelkind they differ from the general laws in the\ndisposition of Estates; and so of Borough-English, and wherever in\nthis kingdom particular customs are to be found or met with. For, my\nLord, it is not only a first and leading principle of legislation\nin the colonies, arising out of their original grants and charters,\nand enforced by the royal instructions given to commanders in chief\nthere; but it is also enacted by the statute of the 7th and 8th of\nWilliam III. ch. xxii. \u201cthat no law, usage, or custom, shall be made\nor received in the plantations, repugnant to the laws of England:\u201d\nso that, by these restrictions, the very _leges loci_ (wherein, from\nsituation, from climate, and from other circumstances, one might\nnaturally suppose some difference) are forced as much as may be to a\nconformity with the constitution and laws of this country; and to\nprevent even the accident of a contrary occurrence, your Lordship\nknows, that there is a counsellour appointed to the board of trade\nhere, whose especial business it is, to examine all the colony\nacts, and thereupon to make his report, if necessary, previous to\nthe royal confirmation of them. If property, therefore, in Negroes,\nwas repugnant to the law of England, it could not be the law of\nAmerica: for (besides the reasons already assigned) by the same\nstatute wherever this repugnancy is, there the law is _ipso facto_\nnull and void. But I will further endeavour to elucidate this matter,\nby begging a question or two, by way of case in point. Let it be\nadmitted then, that a colony of English had embarked from hence, in\norder to establish settlements for themselves in some one of the\nlate ceded islands in the West Indies, and that they were arrived,\nit may be said, in the island, _where English troops, trampling on\nthe laws of God and man, are slaughtering even to extirpation a\nguiltless race of Caribs, the aborigines of the country. I mean the\nisland of St. Vincent, an island under the tutelage of a Saint too_!\nAnd suppose that, upon their arrival there, the Legislature of that\ncountry had taken it into their heads to pass an act similar to the\n25th of Geo. II. ch. xl. already referred to, thereby vesting these\npeople as property, in certain owners allotted to them: I should be\nglad to know, my Lord, whether this act could possibly have operated\nas a law, and whether it was not, _eo instanti_, upon its being\nenacted, destitute and void of all force, validity, and effect? Your\nLordship\u2019s answer doubtless would be, that this act must have been\nits own executioner, that it was _felo de se_. Why then, my Lord,\ndoes not the principle directive of this conclusion on the case of\nthe colony of English, determine likewise on the case of the Negroes?\nIf an act of an American plantation making property of a colony of\nEnglish there, is nullified _ab initio_ from its being enacted, why\nis not an act making property of a colony of Africans susceptible of\nthe same nullity? The reason, my Lord, is twofold: first, because\nin the one act, such a law is not only repugnant to, but absolutely\nsubversive of, the laws of England: secondly, because in the other\nact, such a law is not only consistent with, but founded on, the laws\nof England: and this, my Lord, proves to mathematical demonstration,\nthat the colony laws are not only in general dependant on the laws of\nEngland, but, in particular instances, owe their origin and source\nto them: so that, as the refracted rays of light, diverging from one\npoint through a prism, may be concentred in the same focus; in like\nmanner may these laws, notwithstanding their number and variety, be\ncollected and disposed of in one common system or digest, as parts\nof the same whole. From what therefore I have here suggested, my\nLord, I mean to conclude generally, that the right and property, not\nonly of Mr. Steuart in his Negroe Somerset, but of every subject\nof Great Britain in his Negroe or Negroes, either in the colonies\nor elsewhere, is a right and property founded in him by the law of\nthis land; that the royal grants, letters patent, and charters, for\nand of the African trade and company, confirmed and established by\nacts of Parliament, are the foundation whereupon all the laws of the\ncolonies, respecting their Negroes, are built; and that, without such\nsanction, those laws could never have been made. For, my Lord, it\nis evident that the colonies could not have had power of themselves\nto institute this trade to Africa; neither have they the means to\nsupport it. Without this trade then to Africa, no Negroes could have\nbeen imported to them; and if they had had no Negroes among them,\nthey had needed no laws appertaining to Negroes[7].\n\nBut, my Lord, it may be urged, that although the laws of England may\nmake property of Negroes, they do not make slaves of them. I should\nimagine that, although an individual, I might answer individually\nfor every American subject of the King, that they do not desire\nany greater interest in their Negroes than that of property. It is\nself-sufficient to answer all their purposes, and to produce all\nthat great good which this nation experiences therefrom. It is a\nsupposition of inhumanity, I hope, inapplicable to these people,\nthat they should wish to make slaves of their Negroes, merely for\nthe sake of slavery; and if it should appear, that there is no\nsuch law existing in America, as the law of slavery, considered as\nsuch, I should infer that the contrary presumption was fittest to\nbe entertained and received. The law respecting Negroes there, my\nLord, is the law of property, consentaneous to the law of England.\nBy this law they are made real estate, for the purpose of descent,\nand goods and chattels _quoad_ the payment of debts. This is the\noriginal and fundamental law concerning Negroes. I do not remember\never to have seen the word Slavery made use of, in any law, of any\ncolony, in America. I admit that Negroes are there termed slaves:\nbut I will tell your Lordship why. In the criminal law, where they\nbecome necessarily the objects of punishment, it is essential that\nthey should have some descriptive name or title given to them. It is\nfor this reason, therefore, that they are there, and there only so\ncalled. As they had been already defined to be property, as Negroes,\nit could not be said that, if property should strike his master,\nproperty shall be punished; but it is said, that if a slave should\nstrike his master, this slave shall be punished accordingly. Now in\nthe antient law of England, my Lord, when slavery was part of the\nconstitution, your Lordship knows, that not only the villein was\ndescribed, but the law of villenage or bondage was also known and\nlaid down. In the laws of America, the slave is made mention of, for\nthe reason assigned; but the law of slavery, however impliedly, is no\nwhere expressly to be found.\n\nBut here, my Lord, I must beg leave to make a short digression,\nintentionally to wipe off an imputation, which by one of the\nplaintiff\u2019s counsel was thrown on the owners and possessors of\nNegroes in America. In the course of his pleading, he took occasion\nto draw a horrid and a frightful picture of the barbarity, and\ncruelties, that were exercised on these beings in the colonies; and\nconcluded with hoping, that such practices would for ever remain\nforbidden to this country. Your Lordship knows, that wherever order\nis, there discipline must ensue. Like as cause and effect, they\nare inseparable one from the other. Now it is not to be presumed,\nthat an hundred thousand Negroes are to be held in obedience to\nten or fifteen thousand owners (for this perhaps may be found to\nbe near the average) without some means or methods, which, from\ntheir accidental application, might so generally operate on their\nfears, as to produce the end required. It is so in the case of the\nnavy; it is so in the army of every country in the known world.\nA soldier would not put himself in the front of a battle, to run\nthe risque of being shot through the head, if he did not know that\nthis would be the certain consequence of his desertion. The fear\nof the latter gives him courage to engage in the former: or, how\notherwise could fifty officers, perhaps, command a regiment of a\nthousand men? But, my Lord, the design of this gentleman\u2019s groupe of\nfigures, was to induce a belief in the Court, that English feelings\nwere to revolt at American punishments. As martial law is not the\nlaw of Westminster-hall, it is likely that he has not studied it:\nbut, living in this country, I cannot suppose him a stranger to\nthe effects of it. Who have not been eye-witnesses to the hundreds\nof stripes that have been given to soldiers on the parade of St.\nJames\u2019s? I saw once, my Lord, two sailors [who were perhaps impressed\nmen too] under the sentence of receiving five hundred lashes\neach, flogged on their naked backs along the sides of thirty-four\nmen of war, lying at anchor in the harbour of Spithead. Was such\na punishment ever known to have been inflicted on any Negroe in\nthe American plantations? No, my Lord: the laws of every colony\nforbid it: but a stronger law than these prevents it, the law of\nself-interest. Negroes are the riches of those who possess them.\nLand, without their aid and assistance, in order to cultivation,\nis useless, and of no value. If their healths are impaired, their\nlabour is lost, and profit ceases. If their lives are destroyed,\ntheir places must be supplied with more difficulty, and at a much\ngreater expence, than is commonly supposed. The good consequence of\nwhich, my Lord, is, that the state of Negroes, _c\u00e6teris paribus_,\nin America, is preferable, nay infinitely more desireable, than the\ncondition of the poorer sort of people residing even in this boasted\nhappy isle. I will not say, my Lord, that this is a rule without\nan exception. There are madmen in all parts of the world, who, as\nsuch, act diametrically opposite to their interest. Such there are\nin America: but your Lordship sees, that the observation is founded\non reason; and I can assure your Lordship, that it is the effect of\ngeneral experience. But, my Lord, I cannot quit this subject without\nmaking all due allowance for the learned counsel\u2019s zeal for his\nclient, and for the warmth of his youth, which probably might have\nhurried him into this ill-grounded and uncalled-for reproach. It was\nill-grounded, as, I hope, I have proved: it was uncalled-for, because\nnot necessary to the question; and could no otherwise have been\napplied or received, than as mere _argumenta ad passiones_: which,\nhowever admissable to the ears of a jury, to the distinguishing eye\nof a court, never fail to carry with them their own impropriety. But\nin justice to the gentleman, in other respects, I am called upon\nto say, that it was with infinite pleasure I perceived those rays\nof genius and abilities in him, which promise to shine forth so\nconspicuously, to the ornament of this country, and to the honour of\nBarbadoes, his native island, in America[8].\n\nI come now, my Lord, to say, that I hope it will not be imputed to me\nas vanity, that I have ventured to suggest what might in part have\nled the ideas of those great and wise men, the Lord Chancellours\nTalbot and Hardwick, to the conclusion which they have drawn, namely,\nthat Negroes in this country do not become free. I was encouraged\nin the undertaking, by the greatness of their authority. I was\nenlightened in the pursuit, by the evidence of their opinion. I\nthought myself justified in resting their chief reasons and motives\non the principles of property; and I will produce the opinion itself,\nas the warrant of my justification:\n\n  \u201cWe are of opinion, That a slave, by coming from the West Indies,\n  either with or without his master, to Great Britain or Ireland,\n  doth not become free; and that his master\u2019s _property_ or _right_\n  in him is not thereby determined or varied; and baptism doth not\n  bestow freedom on him, nor make any alteration in his temporal\n  condition in these kingdoms: We are also of opinion, that the\n  master may _legally_ compel him to return to the plantations[9].\n\n                                                          \u201cP. YORK.\n                                                          \u201cC. TALBOT.\u201d\n\n  Jan. 24, 1729.\n\nUpon this opinion, my Lord, I shall make no other remark, than that\nright and property seem to be the obvious ground and foundation of\nit, or the hinges whereupon the whole is made to hang and to turn.\n\nBut, my Lord, I will now admit, that, what is held to be law, is at\nvariance with this opinion. It is laid down \u201cthat a Slave or Negroe,\nthe instant he lands in England, becomes a freeman;\u201d that is, \u201cthe\nlaw will protect him in the enjoyment of his person and his property;\nyet with regard to any right which the master may have acquired to\nthe perpetual service of John or Thomas, this will remain exactly\nin the same state as before.\u201d The interpreters of this law, my\nLord, may be _right_ in point of _reason_; but, I submit it, that\nthey are _wrong_ in point of _law_[10]. The case is this, my Lord:\nseeing that Negroes are human creatures, it would seemingly follow\nthat they should be allowed the privileges of their nature, which,\nin this country particularly, are in part the enjoyment of person\nand property. Now, from hence a relation is inferred, that has not\nthe least colour of existence in law. A Negroe is looked upon to\nbe the servant of his master; but by what authority is the relation\nof _servant_ and _master_ created? Not by the authority of the\nlaw, however it may be by the evidence of reason. By the law, the\nrelation is, as _Negroe_ and _Owner_: he is made matter of trade; he\nis an article of commerce, he is said to be property; he is goods,\nchattels, and effects, vestable and vested in his owner. This, my\nLord, is the law of England, however contradictory to, or subversive\nof, the law of reason[11].\n\nNow as to the fact of property in Negroes, without exception to this\nkingdom or limitation to other countries, I am supported in opinion\nby the authority of the learned Judge Blackstone; though he ascribes\nthe rise of this property to a source very different from me. In the\nchapter of, Title to things personal by occupancy, he says, \u201cAs in\nthe goods of the enemy, so also in his person, a man may acquire\na sort of qualified property, by taking him a prisoner in war, at\nleast till his ransom be paid. And this doctrine seems to have been\nextended to Negroe servants, who are purchased when captives, of the\nnations with whom they are at war, and continue therefore in some\ndegree the _property of their masters_ (he should have rather said\n_owners_) _who buy them_.\u201d Here then he refers to the law of nations,\nfor the establishment of that which I appeal to the law of England\nfor. Now, although the law of nations might have been a good ground\nto rest the municipal law of this country upon, and might have served\nas a preamble to, or reason for, an act of parliament; yet it is not\nwithin my conception, how, in such an internal concern as this is,\nthe law of nations could have been the law itself. For example, if\nin the return to the writ of Habeas Corpus in this case, it had been\nset forth, that Negroe servants are purchased when captives of the\nnations with whom they are at war, and therefore the _law of nations_\ngives their masters a property in their persons; would your Lordship\nhave thought this a _lawful_ plea for the remanding of Somerset? If\nnot, your Lordship finds that the fact of property is admitted by\nthe learned Judge, without the proper foundation of law to support\nit. But he proceeds to say, \u201cthough, _accurately speaking_, that\nproperty consists rather in the perpetual service, than in the body\nor person of the captives.\u201d _Accurately speaking_, my Lord, I join\nissue with the learned Judge: but, _legally speaking_, the law is\nas he had stated it to be. Those who speak accurately reason from\nthe real nature of Negroes, and draw their conclusions from thence:\nthe Lords Talbot and Hardwick spoke legally, and drew their opinions\nfrom the fountain-head of law. Besides, my Lord, I conceive it to be\nimpossible that the law should be as these interpreters or reporters\nhave made it to be; because the result of it is plain\u2014inconsistency,\nand positive absurdity. If Somerset is protected by the law of\nEngland in the enjoyment of his person and property, how, in appeal\nto common sense, can Mr. Steuart\u2019s right in him remain exactly in the\nsame state as before? \u201cYes, it may be said, he has a right to the\nperpetual service of him; for this is no more than the same state of\nsubjection for life, which every apprentice submits to for the space\nof seven years, or sometimes for a longer time.\u201d But by what mode or\nmethod does Mr. Steuart acquire this perpetual right to his service?\nThere is no indenture of apprenticeship on the part of Somerset to\nhim: there is no written contract of any sort or kind whatever,\nthere is no parole agreement between them, to enforce this right of\nservice. How is it to be maintained then? If by the purchase of him,\nproperty is the offspring of purchase; and, as such, Mr. Steuart\nclaims him. If he is not his property, he has otherwise no right in\nhim, nor to his services, and, again, if he is his property, who\nshall disseise him thereof?\n\nAs I began, my Lord, with making a distinction between slavery and\nproperty, and have persisted in their legal difference relatively\nto the state and condition of Negroes, some farther explanation\non this point may perhaps be looked for and required of me. I am\nsensible it may objectively be said, that in every kind of slavery\nthere is an included degree of property, more or less limited or\nextended; and that this kind of property therefore in Negroes is but\nan accumulated degree of slavery: so that the distinction I have made\nis a distinction without a difference, and a mere contentiousness\nabout words. But, although I admit the truth of this objection in\npart, I must deny, in the whole, its application to the principles\nof my argument. Slavery, my Lord, is that state of subjection,\nwhich mankind, by force or otherwise, acquire _the one over the\nother_. In every society therefore where this state of subjection\nprevails, the object and subject of those laws necessary for the\nregulation thereof are, what? _are human nature itself_. Let it\nbe considered then whether _human nature_ is either the object or\nsubject of the laws of England, respecting the state and condition of\nNegroes. And here, my Lord, I beg leave to assert, that the appeal\nI have already made to those laws maintains the contrary matter of\nfact, with the undeniable proof of self-evidence. But it may again\nbe urged, that authority, however respectable, is not the test of\ntruth; and therefore, says the disputant, shew me the reason, the\n_Cur_, the _Quare_, the _Quamobrem_, of these laws. To which, in\nthe language and postulate of the Greek Philosopher, I reply; that,\nas matter of fact is the \u0394\u1f78\u03c2 \u03d6\u03bf\u1fe6 \u03db\u1ff6 of my argument, beyond this, it\nis not incumbent on me to extend my enquiries. And yet, my Lord, a\nresearch of this nature being perhaps founded upon no impertinent or\nunmeaning curiosity, the suggestions even of fancy and imagination\nmay not be here undeserving your Lordship\u2019s attention; and as such\nthe subject is, in this view, of course not unworthy my notice.\nIt being then evidently the will, it is not to be presumed, till\nthe contrary appears, that it was the effect also of the wisdom of\nparliament, that Negroes under the law should not be considered\nas _human beings_; and therefore I am led to surmise that this\ndetermination of the Legislature might have arisen from one or the\nother of two motives or considerations: the one _physical_, the other\n_political_. With respect then to the physical motive, your Lordship\nneed not be told how much the origin of Negroes, the cause of that\nremarkable difference in complexion from the rest of mankind, and the\nwoolly covering of their heads so similar to the fleece of sheep,\nhave puzzled and perplexed the Naturalists of all countries for\nages past. It was a subject of the deepest reflection to the great\nand learned Mr. Boyle; and what could engage his divine abilities,\nwithout satisfaction either to himself or others, is likely to remain\namong those _arcana_ of nature that are not to be revealed to human\nunderstanding. But, although these ph\u00e6nomena in nature are not to be\naccounted for, and therefore admit of no principle of law inferible\nfrom them; yet their very incomprehensibleness, when compared with\nother circumstances more known and better understood, may serve\nto this end, as so many lesser weights in the scales of greater\nprobability. Now, my Lord, it is an opinion _universally_ received,\nthat human nature is _universally_ the same: but I should apprehend\nthat this was a proportion rather taken for granted, than admitted\nto be proved: for although the proper study of mankind is man, and\ntherefore the universality of such an opinion is _prima facie_\nevidence of its truth; yet, it is to be observed, that, of all other\nstudies, the science of man has been least of all cultivated and\nimproved. Man only, who examines all Nature else, stands unexamined\nby himself. If we look into the vegetable and mineral kingdoms of\nthis world, we shall perceive a scrutiny made in them the most nice,\naccurate, and comprehensive, we shall find these grand divisions\nof nature arranged in classes, orders, kinds, and sorts: we shall\ncontemplate systems morally perfect. If we take a view of the animal\nkingdom below ourselves, we shall be witnesses there also of the same\norder, regularity, and perfection. Why then is human nature exempt\nfrom this disquisition and arrangement? Are men afraid to turn their\neyes upon themselves, lest they behold themselves in the mirror of\ntruth? Or is it pride, or vanity, that causes this neglect? Yes,\nmen would be angels, angels would be gods, says Mr. Pope[12]; and\nyet man, as Dr. Lister observes[13], is as very a quadruped as any\nanimal on earth; and whose actions are most of them resolvable into\ninstinct, notwithstanding the principles which custom and education\nhave superinduced. Of other animals then, it is well known, there\nare many _kinds_, each kind having its proper _species_ subordinate\nthereto: but man is one kind of animal, and yet, without distinction\nof species, _universally the same_. Does not this seem to break in\nupon and unlink that great chain of Heaven, which in due gradation\njoins and unites the whole with all its parts? May it not be more\nperfective of the system to say, that human nature is a _class_,\ncomprehending an _order_ of beings, of which man is the _genus_,\ndivided into distinct and separate _species_ of men? All other\nspecies of the animal kingdom have their marks of distinction: why\nshould man be universally indiscriminate one to the other?\n\nThe great Mr. Locke says[14], that reason is supposed to make the\ncharacteristic difference between man and beasts: but, what is the\ncharacteristic that distinguishes man from man? That there may and\nshould be such a distinction, I have already endeavoured to shew; and\nI am apt to think that this is a question not without its answer.\nThe learned Dr. Hutchinson[15] has demonstrated the existence of\n_a moral sense_ in, and peculiar to, human nature; which as it\nserves essentially to distinguish man from beasts, and to raise him\nfrom the tenth to the ten thousandth link of the chain, so is it,\nin my humble apprehension, an evident criterion of the specific\ndifference between man and man. Now Mr. Locke, speaking of reason as\nthat faculty whereby man is distinguished from beasts, says, that\nbeasts have reason in common with men; in which however he is to be\nunderstood, that beasts possess the faculty, and in some measure\nhave the use, of reason; but man\u2019s superiority over beasts consists\nin the power of exerting that faculty, and in the compound ratio\nof its exertion. As beasts therefore have the faculty of reason,\nand it is the exertion in degree of that faculty (particularly in\nobtaining abstract ideas) that creates the great difference between\nman and beasts: so by the same parity of reasoning, the _moral sense_\nbeing a faculty of the human mind common to all men, the capacity of\nperceiving moral relations, the power of exercising that faculty,\nand the compound ratio of its exercise, is that which makes the grand\ndifference and distinction between man and man. All nature, my Lord,\nwhich is the art of God, is wisely fitted and adapted to that use and\npurpose for which it was ordained; and the same observation is to\nbe made even in the art of man. A flea is not less perfect than an\nelephant because of its size: neither is the cup that holds a pint\nless compleat than the vessel that contains an hundred gallons; when\nboth are full, the end for which both were designed is answered and\nfulfilled. The use then to be made of this doctrine, my Lord, is,\nthat as experience, observation, and experiment, are the foundations\nupon which all speculative philosophy is raised; so, from experience\nand observation, I judge that the truth of this hypothesis may be\nvery clearly proved and demonstrated. Now, in order to this, it is\nnecessary to have recourse to the histories of nations: to read, to\nexamine, and compare them, one with the other. To observe the moral\nimprovements had by them, to remark the social virtues that prevail;\nand this will bring me to the accounts that have been given of\nNegroes (for histories they have none of their own) and consequently\nback to the subject of this address to your Lordship. But, my Lord,\nforbearing to trouble your Lordship with a detail of these accounts,\nI shall, referring them to your Lordship\u2019s memory, content myself\nwith the bare mention of a few facts only[16].\n\nMr. Guthrie, in his account of Africa from the tropic of Cancer to\nthe Cape of Good Hope, says, \u201cThe history of this continent is little\nknown, and probably affords no materials which deserve to render\nit more so. We know from the antients, who sailed a considerable\nway round the coasts, that the inhabitants were in _the same rude\nsituation_ near 2000 years ago in which they are at present; that\nis, they had _nothing of humanity_ about them _but the form_. This\nmay either be accounted for by supposing, that nature has placed\nsome insuperable barrier between the natives of this division of\nAfrica and the inhabitants of Europe; or that the former, being so\nlong accustomed to a savage manner of life, and degenerating from\none age to another, at length became altogether incapable of making\nany progress in civility or science. It is very _certain_ that all\nthe attempts of the Europeans, particularly of the Dutch at the\nCape of Good Hope, have been hitherto ineffectual for making the\nleast impression on these savage mortals, or giving them the least\ninclination or even idea of the European manner of life.\u201d\n\nAll other writers on this subject agree in these relations, or\nfurnish others similar to them: nor have I been able to find one\nauthor, by whom I could discover that there was any sort of plan or\nsystem of morality conceived by these tribes of Africa, or practised\namong them. Their barbarity to their children debases their nature\neven below that of brutes. Their cruelty to their aged parents is\nof a kin to this. They have a religion, it is true: but it is a\nreligion which seems the effect only of outward impressions, and\nin which neither the head nor the heart have any concern. They have\nlaws founded on principles, which plainly prove the defective use of\nthe _moral sense_, as appears in this instance among the rest. Their\nJudges are judges and executioners at one and the same time. When a\ncriminal is condemned by them, the Chief Justice first strikes him\nwith a club, and then all the rest of the Judges fall upon him, and\ndrub him to death; and neither this, nor any other of their customs,\ncan time make any alteration in, nor precept nor example amend.\nIndeed, if it were otherwise, it would perhaps be unnatural: for the\nEthiopian cannot change his skin, nor the Leopard his spots. From\nthis then, my Lord, I infer, that the measure of these beings may be\nas compleat, as that of any other race of mortals; filling up that\nspace in life beyond the bounds of which they are not capable of\npassing; differing from other men, not in _kind_, but in _species_;\nand verifying that unerring truth of Mr. Pope, that\n\n      \u201cOrder is Heaven\u2019s first law; and this confest,\n      Some are, and must be, greater than the rest:\u201d\n\nThe application of what has been said, is, that the Legislature,\nperceiving the _corporeal_ as well as _intellectual_ differences of\nNegroes from other people, knowing the irreclaimable savageness of\ntheir manners, and of course supposing that they were an inferior\nrace of people, the conclusion was, to follow the commercial genius\nof this country, in enacting that they should be considered and\ndistinguished (as they are) as articles of its trade and commerce\nonly[17].\n\nThus, my Lord, borne on the wings of Fancy, and led by Imagination\u2019s\nwily train, have I ventured in untrodden paths to trespass on\nphilosophic ground; to which offence, however, pleading guilty at\nyour Lordship\u2019s bar, I submit to the justice of the sentence, be your\nLordship\u2019s judgment whatever it may.\n\nBut having now discussed the _physical_ motive, which, as it is\napprehended, might have occasioned the _civil_ existence, if I may\nso say, of Negroes in this kingdom; the _political_ consideration\nproposed comes next in the order of enquiry. It must be observed,\nmy Lord, that if the cause already assigned be the real cause,\nwhatever is to be advanced on this head, is useless and superfluous.\nBoth causes cannot be true at one and the same time. They are meant\nand must be received in the alternative; or as the two strings of\nNimrod\u2019s bow, of which if either failed, the other supplied the want;\nand of whom Mr. Pope thus speaks:\n\n      \u201cBold Nimrod first the savage chace began,\n      A mighty Hunter, and his _game_ was _man_.\u201d\n\nNow the physical motive supposes a difference of species among men,\nand an inferiority of that species in Negroes: whereas the political\nconsideration, on the other hand, infers an universal sameness in\nhuman nature; that is to say, in fact, that Englishmen are Negroes,\nand Negroes are Englishmen, to all _natural_ intents and purposes.\nFor what signifies the black skin, and the flat nose, as the great\nBaron Montesquieu would insinuate[18]? And yet methinks, if the\nBaron had had a black skin, and a flat nose, the world never would\nhave had the benefit of his _Esprit des Loix_. Upon this ground\nthen, the question that arises is, what could have given rise to\nthis degradation and debasement of human nature? If these our\nfellow-creatures were instruments necessary for the colonizing of\nAmerica, and to this end compulsory laws were expedient also, why\nwere these laws not made suitable and suited to their nature? Why\nwere Negroes ordained a _mortuum vadum_, instead of a _vivum vadum_,\n(so to speak for comparison sake) to those under whose dominion they\ncame? Might not the laws of villenage have been revived _quoad_\nthem? Might not other laws of slavery have been enacted for their\ngovernment?\n\nHere is it then that policy, which is the object of my discovery,\nmust have intervened. Now the planting of the colonies opening with\nthe 16th century, and consequently commencing nearly with the reign\nof James I. it appears, that during the reigns of this race of kings,\ntheir cultivation and improvement were so rapidly had, that, from\na state of infancy, before the end of the reign of Charles II. they\nhad grown up and increased to the vigour of manhood. It is in this\nperiod of history, therefore, my Lord, that I am to search for, and\nto trace, the cause of this allotted condition of Negroes: but, as\nit cannot be expected that I should here enter into the particulars\nof those times, so neither is it necessary to my purpose. A single\nincontrovertible observation will serve to rest the whole of what\nI have to offer on this subject; and which is this: that from the\n_alpha_ of the reign of James I. to the _omega_ of the reign of\nJames II. _to enslave_, was the fixed principle and uniform plan\nof government. This then at once accounts for the toleration of a\nmeasure, so inconsistent with the principles of the constitution of\nthis country: but the reason upon which the measure was grounded is\nnot so immediately obvious. From things that are more known, things\nthat are less known must be deduced. Now it is a maxim in politics,\nthat to obtain an end, direct means are not always to be pursued, or\nrather that _indirect_ means are allowed to be practiced; and this\nwill lead me to mention two questions that have been already stated.\nWhy were not the laws of villenage enforced? or why were not other\nlaws of slavery enacted for the government of these people? The\nanswer is plain; these were edged tools, which the complexion of the\ntimes would not suffer the use of. Enough was the plan of government\nexposed, though hid under the cloak of religion. Such a step would\nhave left it naked, and without a covering. Policy therefore\nprevented that which the jealousy of the people would have forbidden.\nIn vain would have been the argument, that these laws were intended\nfor operation in the new world of America. _Ever to begin at the\nextremes_ is a well-known rule in the art of attaining to despotism.\nThe more distant the design, the deeper laid is the scheme, and the\nmore sure in its consequences. As in the body natural, even so is it\nin the body politic. The disease that lays hold of the toe, often\nfinds its way to the heart. Gradual encroachments by imperceptible\nmovements are the most dangerous symptoms. They call off attention\nto remedies, and lull suspicion to sleep. But may all lovers of\nliberty ever have their eyes open and awake to this despotic process!\nHe that would tyrannise in America or abroad, awaits only the\nopportunity of becoming a tyrant at Home; but thank God, my Lord, the\npresent times with us, of all others, give least occasion for any\napprehensions of this sort. But to return. Instead then of that Demon\nSlavery being called in to preside over Negroes, Trade, the guardian\nangel of England, was made the ruler of them. This I attribute to\npolicy; which, however seemingly more constitutional, was not less\nfavourable to the ruling principle of the Crown. I have already\nadmitted, that to erect corporations, and to grant Letters Patent for\nthe purposes of trade, are in the Crown its undoubted prerogative;\nbut, considering Negroes as human creatures, and upon a level with\nourselves, I submit it to your Lordship, that the Crown had no right\nto make slaves of them; whatever the uncontroulable power of an act\nof parliament might do: and yet Charles the Second, by his Charter\nonly to the Duke of York, _enslaved_ whole nations of these people.\nThe apology, I apprehend, for this, my Lord, will be; that neither\nthis Charter, nor any other Grant, have ever conceived Negroes in\nthis light and view; as, relation being thereunto had, will more\nfully appear[19]. If so, my Lord, two things come out in proof:\n_presumptively_, that the Crown had no right of itself to make slaves\nof Negroes, or it would, in those days at least, have exerted it;\n_positively_ by these authorities themselves, that Negroes are not\nconsidered as slaves under the idea of slavery, but merely as matter\nof commercial property, and articles of the trade of this country.\n\nIf now, my Lord, I have supported the doctrine which I took upon\nme to evince, and have satisfactorily shewn, that property is the\ngift of action in this case, thereby proving that Mr. Steuart may\nof course legally compel Somerset to return to the Plantations, I\nshall leave its decision to your Lordship, on a quotation of your own\nwords: \u201cIt is not my business to alter the law; or to make it, but to\nfind the law.\u201d\n\nIt remains then only to observe, that if Somerset is the legal\nproperty of Steuart, he, Somerset, cannot legally be entitled to\nthe writ which he has sued out in aid of relief. The writ of Habeas\nCorpus is a writ of right given to the subjects of the Crown of\nEngland, for the security of their liberties. If Somerset can fall\nunder this predicament and description, he is open to the benefits\nthat may arise therefrom; but if the law has already fixed the _fiat_\nof property on him, I apprehend it is a _legal_ exception to the\nwrit, and his right is foreclosed thereby.\n\nHaving said thus much, my Lord, on one side of the question, I do not\nmean to conceal my sentiments on the other. My aim is, to establish\nthe truth: my wish, that what is right should be done. Whatever then\nis here the result of my reflections, to obtain the end I propose, is\nnecessary to your Lordship\u2019s information.\n\nWhen this matter, therefore, was first in agitation, it stated itself\nthus generally to my comprehension: that as it was a case which\nexisting for two centuries and upwards, and never receiving finally\nany judicial determination, it had better remain in the situation it\nwas. It compared itself to me with some cases of royal prerogative,\nand of parliamentary privilege, which were excellent in theory, but\nsubject to inconvenience in practice; and whose best and safest law\nwas that of suspense: but, my Lord, when I found that the case was\nto be argued, and the judgment of the Court of King\u2019s Bench taken\nthereupon, my hopes were, that, if it was possible to counteract\nthe law of the land, the decision would be in favour of the Negroe:\nfor although the knowledge of their being free might spirit them\nup to insurrections in America, yet it would put a stop to their\nimportation here by their owners, and they would be more usefully\nkept and employed in the colonies to which they belonged. On the\ncontrary determination too, my Lord, it being solemnly adjudged that\nNegroes in this country were not free, I foresaw that this fatal\nconsequence might follow: that the trade from Africa to America\nwould be diverted from Africa to England; and Negroes, in process\nof time, would be sold in Smithfield market, as horses and cattle\nnow are. Each farmer would have his Negroe to drive his plough, each\nmanufacturer his slave under his own controul; and America that was\nconquered in Germany, as was the saying of a very great man, would\nbecome America ruined in England.\n\nA great deal, my Lord, was urged by the learned counsel, of the\nedicts of France, relative to Negroes: but it does not occur to my\nmemory that this, among the rest, was taken notice of. It may be,\nthat I am misinformed with respect to the fact; but I will tell your\nLordship how I came by it. I have been myself, my Lord, a traveller\nthrough every province of France, and during my tour I never had\nopportunity of seeing more than two Noirs (or Blacks) as they are\nthere called; one of which was at Marseilles, the other at Bourdeaux,\nthe two chief ports of trade with the American colonies of that\nkingdom. Knowing therefore the intercourse with, and observing the\nfewness of these people, I was led to enquire into the reason of\nit; when I was informed, that there was an absolute edict of the\npresent King of France, prohibiting the importation of them into\nthat country, upon this political idea, that otherwise the race\nof Frenchmen would, in time to come, be changed. Greater much, my\nLord, is the reason in this country to apprehend this event. It was\nin representation, if not in proof, to your Lordship, that there\nwere already fifteen thousand Negroes in England; and scarce is\nthere a street in London that does not give many examples of that,\nwhich, with much less reason, had alarmed the fears of France.\nUpon the whole, then, my Lord, let America and England look up to\nyour Lordship, as the man qualified to draw the line of propriety\nbetween them. To this end, let a Bill originate in the House of\nLords, under your Lordship\u2019s formation: let slavery, so far as\nproperty is such in Negroes, be held in America: let the importation\nof them be prohibited to this country, with such other regulations\nand provisions as your Lordship shall see fit to lake place. Some\ncenturies back, slavery was the law, and slaves the objects of\nthat law, as I observed before, in this kingdom: but civilization\nhas extinguished the existence of both. When America shall be what\nEngland is, some yet undiscovered land will become what America is.\nIn short, my Lord, by this act you will preserve the race of Britons\nfrom stain and contamination; and you will rightly confine a property\nto those colonies, upon whose prosperity and welfare the independent\nbeing of this country rests.\n\n                                                       SAMUEL ESTWICK.\n\n  Portman-Square, Dec. 10, 1772.\n\n\nFINIS.\n\n\n\n\nFOOTNOTES:\n\n[1] The late publication of Mr. Hargrave\u2019s argument, as one of\nSomerset\u2019s counsel, gives me the satisfaction of seeing in the whole,\nwhat I had before the opportunity of hearing only in part. I confess\nI know not which most to admire, the labour of this Gentleman\u2019s\nresearches, or the ingenuity with which his collected materials\nare systematized and disposed. It is a history, perhaps the most\ncompleat that is, of the rise, progress, decline, and general state\nof Slavery; and, whilst it does as much honour to his humanity\nas to his understanding, will serve as a light to enlighten the\nfootsteps of posterity, should a revival of the laws of Villenage\nbe ever attempted in this country: but, having said this, I must\nrecur to my former opinion, that, learned as his arguments are in\ngeneral, in this particular case they are founded on false and\nmistaken principles, and are totally inapplicable to the merits of\nthe present question. His first principle or point is, (vid. p. 12.)\nthat \u201cwhatever Mr. Steuart\u2019s Right may be, it springs out of the\ncondition of slavery; and accordingly, says he, the return _fairly_\nadmits slavery to be the _sole_ foundation of Mr. Steuart\u2019s Claim.\u201d\nThus, with a _Petitio Principii_, which neither is, can, or will\nbe admitted, and upon a manifest error in the return made to the\nwrit of Habeas Corpus, does the argument of Mr. Hargrave commence,\nrest, and depend. But if, instead of admitting, there being no law\nto countenance such admission, the return had relinquished the\nright, and denied the claim, of slavery: if it had set forth, that\nMr. Steuart was the _bona fide_ purchaser of Somerset in the legal\ncourse of trade: that he had bought him out of a ship\u2019s cargoe\nfrom Africa, together with some elephants teeth, wax, leather, and\nother commodities of that country, for which he paid his money, or\notherwise gave in exchange the manufactures of this country: that he\nhad brought him here as an article of commerce with his other goods,\nunder the sanction of the laws of trade: that he meant to export him\nhence under the same protection, with his other property, in order\nto be sold for his better advantage in one of the English Colonies\nin America: that a writ of _Habeas Corpus_ might as well issue on\naccount of his elephants teeth, his wax, his leather, and his other\ncommodities of that country, as on account of his Negroe, they being\nexpressly under the same predicament of law, and so forth: I say,\nunder such circumstances, and upon such a return, what would have\nbecome of this stately pile of elaborate argument?\n\nHigh-built, like Babel\u2019s tower, to magnify the fall! Must not the\nlawyers have saught new ground to build upon? Must not the Court have\nlost that error of insufficiency, which now supports its only right\nof Judgment?\n\n_Note_, Although this argument of Mr. Hargrave is said to have been\ndelivered in the particular Case of Somerset _a Negroe_, yet it is\nmeant and intended as a course of reasoning upon the general question\nof the state and condition _of Negroes_.\n\n[2] It is said in Mr. Hargrave\u2019s argument, p. 23. \u201csuch was the\nexpiring state of domestic slavery in Europe at the commencement of\nthe 16th century, when the discovery of America and of the Western\nand Eastern coasts of Africa, gave occasion to the introduction of\na new species of slavery.\u201d If the arguer had said _a new species\nof traffic_, instead of a new species of slavery, he had expressed\nthe real matter of fact; seeing that the law by which this concern\nis regulated, considers it in no other light or view whatever. For\nthis reason too, it cannot be enumerated among the several species\nof slavery that he has mentioned, and taken notice of; each distinct\nspecies having its distinct laws, appropriated thereto distinctly,\nas the laws of slavery. Among the Portuguese and Spaniards, I have\nbeen given to understand, that Negroes are, and have ever been\nconsidered, as with the English, matter of Property, and articles\nof commerce in the common course of traffic; and were so estimated\nby the French, until the refined age of Lewis XIV. gave rise to a\nnew institution of law, under the title of the _Code noir_, for the\nparticular government of Negroes in their American colonies. It were\nto be wished that a fit and proper digest of this sort could take\nplace with us: but, I fear, the difficulty (which arises not so much\nfrom the subject, as from the means of introduction) will prevent the\nexecution of any such plan. From the unlimited power of the Crown of\nFrance, when laws are made, it is easy to enforce an obedience to\nthem: from the limited power of our monarchy, such obedience is not\nto be exacted. Each English colony has a legislature of its own; and\nalthough they all agree in the framing of laws not repugnant to the\nlaws of England, yet they all widely differ among themselves in the\nmode and practice of those laws.\n\n[3] I have referred to this period of the Negroe-trade to Africa,\nbecause Acts of Parliament go no farther back in confirmation of\nit; but its commencement was of much earlier date. It began in this\ncountry about the middle of the 15th century, and was carried on by\nmeans of letters patent obtained by individual traders for their\nprivate emolument, until the growth of the English plantations in\nAmerica, in the next century, made it an object of such importance,\nas not only to render the establishment of a company necessary,\nbut of such profit as to engage even crowned heads to be concerned\ntherein. The first charter was granted in the year 1661, in favour\nof the Duke of York; but being revoked by consent of parties, it was\nrenewed in the year 1663, with more ample privileges than the former.\nThe principal adventurers here, were Queen Catharine of Portugal,\nMary Queen of France, the Duke of York, Henrietta Maria Duchess of\nOrleans, Prince Rupert, and others of the Court. Thus upon the ground\nof an exclusive Right was this trade continued, till, by the vast\nincrease of the colonies, it became, in the beginning of the present\ncentury, a weight too heavy for the support of prerogative; and so\nfalling under the protection of Parliament, was made, as it now is, a\nfree, open, and _national_ concern.\n\n[4] Mr. Hargrave says, in his argument, p. 67. \u201cAnother objection\nwill be, that there are English acts of parliament, which give a\nsanction to the slavery of Negroes; and therefore that it is now\nlawful, whatever it might be antecedently to those statutes. The\nstatutes in favour of this objection are the 5th of Geo. II. ch. 7,\nwhich makes Negroes in America liable to all debts, simple contract\nas well as speciality, and the statutes regulating the African\ntrade, particularly the 23d Geo. II. ch. 31, which in the preamble\nrecites that the trade to Africa is advantageous to Great Britain,\nand necessary for supplying its colonies with Negroes. But the utmost\nwhich can be said of these statutes is, that they impliedly authorize\nthe slavery of Negroes in America; and it would be a strange thing to\nsay, that permitting slavery there, includes a permission of slavery\nhere. By an unhappy concurrence of circumstances, the slavery of\nNegroes is thought to have become necessary in America; and therefore\nin America our Legislature has permitted the slavery of Negroes. But\nthe slavery of Negroes is unnecessary in England, and therefore the\nLegislature has not extended the permission of it to England; and\nnot having done so, how can this Court be warranted to make such an\nextension?\u201d Now this is the very assertion without proof that I have\ncomplained of above, and have there fully answered: but, in truth,\nthe best answer it can receive, is its own futility. Why did not Mr.\nHargrave, instead of his _ipse dixit_, produce authorities to set\naside this objection? He is on other occasions not sparing of proofs\nand citations. But what is his _ipse dixit_? It is this:\n\nThe Legislature has permitted the slavery of Negroes in America:\n\nBut the slavery of Negroes is unnecessary in England:\n\n_Ergo_, the Legislature has not extended the permission of it to\nEngland.\n\nThis is his mode of reasoning, and these are his very words, which,\nwhen examined syllogistically, shew, if I have not forgotten my\nlogic, that they are as little conformable to rule, as to matter\nof fact. But, the fact is, Mr. Hargrave has found this objection a\nstumbling block in his way, and therefore, nimbly leaping over it\nhimself, to left it to trip up the heels of his followers.\n\n[5] With respect to the statute of the 5th of Geo. II. c. 7. there\nare not wanting frequent instances of its having been inforced in\nthis country; particularly in a case of the noted Rice: who, forging\na Letter of Attorney with intent to defraud the Bank of England of\na considerable sum of money, fled to France, was delivered up by\nthat Court, and afterwards hanged at Tyburn. It seems, upon his\nabsconding, a commission of Bankruptcy was awarded against him; and\nthe Commissioners, as I am credibly informed, under this very Act\nof Parliament here mentioned, sold a Negroe of his in the city of\nLondon, as his property, and among his other goods and chattels, for\nthe satisfaction of the creditors. But this act does not require\ncases for its confirmation, neither is it the place where executed\nthat I contend for; it is _the vesting of the property_, without\nproviso or condition, that surmounts all objection. Suppose I had\npurchased a Negroe in the island of Barbadoes, or in any other\npart of America, that had been extended there at the suit of the\nKing for a debt due to him, and had brought this Negroe with me to\nEngland: would Mr. Hargrave, or any other lawyer, say, that a writ\nof Habeas Corpus, or any other writ whatsoever _not founded on the\nverdict of a jury_, could dispossess me of a property, which I held\nunder the sense, letter, and spirit of an Act of Parliament? Can any\nimplication of law operate against the express words and meaning of\na law? And would not such argument in its consequences be a mere\n_reductio ad absurdum_?\n\n[6] Vide Blackstone\u2019s Commentaries, vol. i. p. 369.\n\n[7] Mr. Hargrave further says, in his argument, p. 67 and 68, \u201cThe\nslavery of Negroes being admitted to be lawful _now_ in America,\nhowever questionable its _first_ introduction there might be, it may\nbe urged that the _lex loci_ ought to prevail, and that the master\u2019s\nproperty in the Negroe as a slave having had a lawful commencement\nin America, cannot be justly varied by bringing him into England.\u201d\nThis is one among other objections raised by Mr. Hargrave in order\nto receive his answer. Now as to the doubt expressed here, namely,\n\u201chowever questionable its first introduction there might be,\u201d the\nright of granting letters patent, and of erecting corporations for\nthe purposes of trade, being the undoubted prerogative of the king\nas arbiter of the commerce of his dominions; the lawfulness of this\ntrade to Africa is no more to be questioned whilst it was carried on\nunder this direction, than it is to be questioned now it is under\nthe controul of parliament. It was before constitutionally legal,\nit is now parliamentary so: but the answer to the objection itself\nis as little satisfactory as the doubt is. Here a most unnatural\ndistinction is aimed at between the colony laws in America, and\nthe laws of their mother country: putting the _lex loci_ of these\ncolonies upon the same footing with the _lex loci_ of Russia or\nPrussia, or any other foreign country: whereas the _lex loci_ of the\ncolonies is founded on the _lex loci_ of England, and is, _in totidem\nverbis_, the same, as has been made to appear.\n\n[8] This was a Mr. Alleyne.\n\n[9] This opinion was repeated by Lord Hardwick, sitting as\nChancellour, twenty years after it had been given, with additional\nassurances, and under the fullest conviction of its strict conformity\nto the law.\n\n[10] It is said, _Lex est summa ratio_. I am sorry that so excellent\na rule of law should admit of contradiction; and I wish that this was\nthe only instance of an exception: but, let it be considered, whether\nour Game laws, our Marriage acts, and, for the most part, the penal\nlaws of this country, _cum multis aliis qu\u00e6, &c._ are not contrary\nboth to reason and nature.\n\n[11] \u201cIt is laid down,\u201d says Judge Blackstone, that \u201cacts of\nparliament contrary to reason are void: but if the parliament will\npositively enact a thing to be done which is _unreasonable_, I know\nof no power that can controul it.\u201d\u2014\u2014V. his Comm. Vol. I. p. 91.\n\n[12] Vid. his Essay on Man.\n\n[13] Vid. his Journ. to Paris.\n\n[14] Vid. his Essay on Human Understanding.\n\n[15] Vid. his Moral Philosophy.\n\n[16] In looking into Mr. Hume\u2019s Essays, particularly the one of\n_national characters_ (which I had never seen till after the above\nargument was finished) I was made happy to observe the ideas of so\ningenious a writer corresponding with my own: but as we differ in\nsome respects, and much of what I have suggested has been not at all\ntaken notice of by him, I shall beg leave to insert here what he has\nsaid upon the subject. \u201cThere is,\u201d says he, \u201csome reason to think,\nthat all nations, which live beyond the polar circles, or betwixt the\ntropics, _are inferior to the rest of the species_, and are _utterly\nincapable_ of all the higher attainments of the human mind.\u201d Upon\nwhich he has the following note: \u201cI am apt to suspect the Negroes,\nand in general all the other _species_ of men (for there are four or\nfive different _kinds_) to be naturally inferior to the whites.\u201d Now\nI do not apprehend, that, in order to have different _species_ of\nmen, it is at all necessary to have four or five different _kinds_.\nI infer, that there is but _one genus_ or _kind_ of man (under the\nterm _mankind_) subordinate to which there are several _sorts_ or\n_species_ of men, differing from each other upon the principle that I\nhave assigned; and, as Hudibras says,\n\n      If one will do,\n      What need of two?\n\nBesides, it is seemingly a less systematical arrangement. But he\nproceeds to say, \u201cThere never was a civilized nation of any other\ncomplexion than white, nor even any individual eminent either in\naction or speculation. No ingenious manufactures amongst them, no\narts, no sciences. On the other hand, the most rude and barbarous\nof the whites, such as the antient Germans, or the present Tartars,\nhave still something eminent about them, in their valour, form of\ngovernment, or some other particular. Such a uniform and constant\ndifference could not happen, in so many countries and ages, if nature\nhad not made an _original distinction_ betwixt these _breeds_ of\nmen. Not to mention our colonies, there are Negroe slaves dispersed\nall over Europe, of which none ever discovered any symptoms of\ningenuity; though low people without education will start up among\nus, and distinguish themselves in every profession. In Jamaica indeed\nthey talk of one Negroe as a man of parts and learning; but, \u2019tis\nlikely he is admired for very slender accomplishments, like a parrot\nwho speaks a few words plainly.\u201d Thus Mr. Hume marks the difference\nbetwixt the several species of men, by their natural capacity or\nincapacity of exerting in degree the rational powers, or faculties\nof the understanding; which is the distinction that Mr. Locke makes\nbetween man and brutes. I distinguish man from man by _the moral\nsense_ or moral powers; and although a Negroe is found, in Jamaica\nor elsewhere, ever so sensible and acute; yet if he is incapable of\nmoral sensations, or perceives them only as beasts do simple ideas,\nwithout the power of combination, in order to use (which I verily\nbelieve to be the case) it is a mark that distinguishes him from the\nman who feels and is capable of these moral sensations, who knows\ntheir application and the purposes of them, as sufficiently, as the\nNegroe himself is distinguished from the highest species of brutes.\n\n[17] There are two cases referred to in Mr. Hargrave\u2019s argument,\n(p. 52. and p. 54.) which are not only fully explanatory of the\nabove principles, but support the opinion of the Lord Chancellours,\nHardwick and Talbot; and are in direct proof of the whole of my\nargument. The cases I allude to, are those of Butts and Penny, and\nGelly against Cleve. The first was an action of _Trover_ for 10\nNegroes; and there was a special verdict, &c. The Court held, that\n_Negroes being usually bought and sold amongst Merchants, and being\ninfidels_, there might be a property in them sufficient to maintain\nthe action. In the second case, the Court is said to have held, that\n_Trover_ will lie for a Negroe boy, because _Negroes are Heathens_;\nand therefore a man may have property in them; and the Court without\naverment will take notice, that they are _Heathens_. Now upon two\njudicial determinations are the very reasons of my argument held and\nalledged. _Negroes are infidels_: _Negroes are Heathens_: of course\nunpossessed of those religious and moral truths, which the Gospel\nimpresses upon all minds capable of receiving them; and therefore the\nlaw, regarding the inferior state of their nature, has considered\nthem merely as _property bought and sold among merchants_.\n\n[18] Vid. his Spirit of Laws, vol. i. p. 341.\n\n[19] See also the Assiento, or Contract made with the South Sea\nCompany, for supplying the Spaniards with Negroes by treaty of\ncommerce between Great Britain and Spain, in the year 1713-14;\nwherein they are considered as dutyable commodities, and named merely\nas matters of merchandize; and if thus conceived of at this time,\nand on so solemn an occasion as a Treaty of Peace, by what new law\nor magic is it that they are now become the subjects of the Crown of\nEngland, and intitled to the benefit of the Habeas Corpus?\n\n\n\n\n  TRANSCRIBER\u2019S NOTE\n\n  Obvious typographical errors and punctuation errors have been\n  corrected after careful comparison with other occurrences within\n  the text and consultation of external sources.\n\n  Some hyphens in words have been silently removed, some added,\n  when a predominant preference was found in the original book.\n\n  Except for those changes noted below, all misspellings in the text,\n  and inconsistent or archaic usage, have been retained.\n\n  Pg ix: \u2018himself a Vellein\u2019 replaced by \u2018himself a Villein\u2019.\n  Pg 47: \u2018the objects of of\u2019 replaced by \u2018the objects of\u2019.\n  Pg 70: \u2018\u0394\u1f78\u03c2 \u03d6\u03bf\u1fe6 \u03db\u1ff6\u2019 could be replaced by \u2018\u0394\u1f78\u03c2 \u03c0\u03bf\u1fe6 \u03c3\u03c4\u1ff6\u2019 to avoid\n         the unusual pi and stigma characters.","title":"Considerations on the Negroe cause commonly so called: Addressed to the Right Honourable Lord Mansfield, lord chief justice of the Court of King's Bench, &c.","tradition":"philosophy-ethics","translated_text":null,"word_count":17091}