Title: Considerations on the Negroe cause commonly so called: Addressed to the Right Honourable Lord Mansfield
Author: Estwick, Samuel
Language: English
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                            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.

                    By SAMUEL ESTWICK, A. M. LL.D.
         Member of Parliament for the Borough of _Westbury_.

                          THE THIRD EDITION.

                               LONDON:
                Printed for J. DODSLEY, in PALL-MALL.

                           M.DCC.LXXXVIII.

                            [Price 2_s._]



_ADVERTISEMENT_

TO THE

READER.


_The judgment that was given in the case of Somerset and Knowles, so
contrary to the received opinions at that time, and to the general
sense of the nation before, having laid the foundation upon which
all the various speculations that upon this subject have since
been raised, and which are at length so magnified and enlarged as
to become the object of a Parliamentary Inquiry; it is imagined,
that a review of some of the arguments which were made use of on
that occasion may not, in the present moment, be thought either
impertinent or unseasonable._

_It is under this idea then, that the following Considerations are
again brought forward to the public notice: and although their
primary object was to fix and ascertain the ground upon which the
Owner claimed a right to his Negroe, and insomuch to develope the
subject from the mist and mystery with which it was want to be
surrounded; yet in the course of their perusal it will, perhaps, be
found, that there are not wanting answers to some of the most leading
and popular objections of the day; that there are some observations
and remarks, as new in themselves, as they have been and are still
unanswered; and withal, that no part of the performance is of a
complexion that can do injury, that may not produce some good, and
of which the author, notwithstanding the distance of time from its
publication, feels that he has either cause to be ashamed, or reason
to repent._



PREFACE.


The first Edition of the following Considerations on the Negroe
Cause was written with haste, and published in a hurry. The hope of
seeing some much abler pen than mine engaged in the discussion of
so important a question, and yet seemingly so little understood,
withheld me from the undertaking; till disappointment made it the
resolution of an hour, and want of time the effect of a few days
attention only. It was evident that whatever was to have been
suggested on the subject, ought to have been known antecedently to
the legal decision of the Case: but led on by the expectation of the
more useful endeavours of others, already was the Term, in which
judgment was to be given, treading closely on my heels, without
my having taken one single step in advance of the design. Thus
circumstanced, such dispatch became necessary as could not fail to
produce errors, imputable both to me and the printer. Whilst one part
of the pamphlet was printing, the other was preparing for the press:
but even this expedition had not its desired effect. The Judgment
was beforehand with the Publication: whereby the Considerations
themselves were deprived of their object, and I, in some measure,
foiled in my purpose. Upon finding however that the very grounds of
my argument (to wit, the opinions of the Lord Chancellors Hardwick
and Talbot) were the subjects of _due attention_ to the Court, and
that the determination rested on this particular Case _only_, from
circumstances of insufficiency arising out of the return made to the
writ of Habeas Corpus, I was induced to suffer this performance to
make its appearance to the public eye, though, like Hamlet’s Ghost,
with all its imperfections on its head.

But being now called upon for a second Edition, I have carefully
corrected the errors of the first, so far as they were perceiveable
to me. I have considerably enlarged the work itself. I have inserted
several notes, in some of which the principles of the late published
argument of Mr. Hargrave, and the argument itself, as applied to the
merits of this question, are _shortly_ examined, though (with what is
offered in the text) it is to be presumed, _fully_ refuted.

Supposing too, that the judgment of the Court of King’s Bench in this
case might be no improper addition, I have, from the most authentic
copy I was able to procure, inserted it here: taking the liberty at
the same time of making some few occasional remarks upon it.

The following _is said_ to be the substance of Lord Mansfield’s
speech in the case of Somerset and Knowles: “We pay due attention to
the opinion of Sir Philip Yorke and Mr. Talbot in the year 1729, by
which they _pledged_ themselves to the British Planters for the legal
consequences of bringing Negroe-slaves into this kingdom, or their
being baptized;” which opinion was repeated and recognized by Lord
Hardwick, sitting as Chancellour, on the 19th of October 1749, to the
following effect: He said, “that Trover would lay for a Negroe-slave:
that a notion prevailed, that if a slave came into England, or
became a Christian, he thereby became emancipated; but there was no
foundation in law for such a notion: that when he and Lord Talbot
were Attorney and Solicitor General, this notion of a slave becoming
free by being baptized prevailed so strongly, that the Planters
industriously prevented their becoming Christians: upon which their
opinion was taken; _and upon their best consideration they were both
clearly of opinion_, that a slave did not in the least alter his
situation or state towards his Master or _Owner_, either by being
christened, or coming to England: that though the statute of Charles
II. had abolished Tenure so far, that no man could be a _Villein
regardant_; yet if he would acknowledge himself a _Villein_ engrossed
in any Court of Record, he knew of no way by which he could be
entitled to his freedom, without the consent of his Master. We feel
the force of the inconveniences and consequences that will follow
the decision of this question: yet all of us are so clearly of one
opinion upon the _only_ question before us, that we think we ought
to give judgment without adjourning the matter to be argued before
all the judges, as usual in the Habeas Corpus, and as we at first
intimated an intention of doing in this case. The only question then
is, _Is the Cause returned sufficient for the remanding him? If not_,
he must be discharged. The Cause returned is, the _slave_ absented
himself and departed from his master’s service, and refused to return
and serve him during his stay in England; whereupon, by his master’s
orders, he was put on board the ship by force, and there detained in
secure custody, to be carried out of the kingdom and sold. So high
an act of dominion must derive its authority, if any such it has,
from the law of the kingdom _where_ executed. A foreigner cannot
be imprisoned _here_ on the authority of any law existing in his
own country. The power of a master over his servant is different
in all countries, more or less limited or extensive; the exercise
of it therefore must always be regulated by the laws of the place
where exercised. The state of slavery is of such a nature, that it
is incapable of being now introduced by Courts of Justice upon mere
reasoning, or inferences from any principles natural or political;
it must take its rise from positive law; the origin of it can in no
country or age be traced back to any other source. Immemorial usage
preserves the memory of positive law long after all traces of the
occasion, reason, authority, and time of its introduction, are lost;
and in a Case so odious as the condition of slaves must be, taken
strictly, the power claimed by this return was never in use here:
no master ever was allowed here to take a slave by force to be sold
abroad because he had deserted from his service, or for any other
reason whatever; we cannot say, _the Cause set forth by this return_
is allowed or approved of by the laws of this kingdom, and therefore
the man must be discharged.”

I must confess, I have been greatly puzzled in endeavouring
to reconcile this judgment with this state of it, and with my
comprehension.

“We pay due attention to the opinion of Sir Philip York and Mr.
Talbot,” are the words of the Noble Lord who delivered the judgment
of the Court; and yet the judgment is, in operation and effect,
directly subversive of the opinion. Now I must take for granted that
this opinion would not have been cited, especially in so affirmative
a manner, if it had had nothing at all to do with the Case then
before the Court: because such citation would have been unmeaning
and unnecessary. This being admitted, it follows, that the law laid
down in this opinion was either the law of the Case, or it was not.
If it were the law of the Case, the judgment would have been governed
by that law, and consequently contrary to what it is. If it were
not the law of the Case, in order to shew what the law is, and that
the law and the judgment might correspond with each other, as cause
and effect, it would seem, _ex necessitate rei_, that the doctrine
advanced in this opinion should have been set aside by the superior
force of legal argumentation and authority. But the reasoning upon
the judgment stands thus: In the Premises this opinion is cited as
authority; then, without any middle term denying that authority, the
conclusion is, by the judgment, that it is no authority at all. Under
these problematical circumstances the only solution possible to me
was, that there might be two decisions intentionally contained under
one judgment: that is to say, that the opinion of Sir Philip York
and Mr. Talbot, was the law upon the general merits of the question;
and that this judgment of the Court was the law upon this particular
state of it. Thus for instance: if the return made to the writ of
Habeas Corpus in this Case had denied the lawfulness of the writ
itself, and Mr. Steuart had claimed Somerset upon the ground only
of being his commercial _property_; then the opinion of Sir Philip
York and Mr. Talbot had operated as law and authority: but as the
return had admitted the right of slavery, and Mr. Steuart had claimed
Somerset as his slave, there being no laws of slavery now _in use_
in this country, either for Negroes, or for any other species of the
human being, the judgment of the court was, _from the insufficiency
of the Cause returned_, the law of this Case.

But no sooner had this reconciliation taken place in my mind, than
another perplexity followed. In the recital of the opinion recognized
by Lord Hardwick, sitting as Chancellour, it is made to conclude
thus: “that though the Statute of Charles II. had abolished Tenure
so far that no man could be a _Villein regardant_, yet if he would
acknowledge himself a Villein ingrossed in any Court of Record, he
knew of no way by which he could be entitled to his freedom without
the consent of his Master.”

Now, by connecting this latter with the former part of the opinion,
in the manner it is done, it appears, as if Lord Hardwick meant
to declare, that the state or situation of Negroes towards their
masters or owners arose out of, and was founded upon, the remains of
the antient laws of villenage in this country. That Lord Hardwick
might have said what is here stated, in order to shew (by way of
illustration of the Case upon which he was then arguing) that even
an Englishman might still become a slave in this country, _if he
pleased_, I cannot deny: but with any intention to prove that the
condition of Negroes proceeded from, and was the same with, the
condition of villeins, is, I must assert, either the mistake of the
person from whose notes this speech was taken, or the intention of
him to puzzle and perplex the Case: for it is manifestly impossible
that the Court could have put so much self-contradiction and
ignorance of the law in the mouth of so wise and so great a lawyer.
His Lordship says, “that Trover will lie for a Negroe slave.” Now,
can any thing be more expressive of the law and condition of Negroes
than this is? What the nature of an action of Trover is, and what
kind of property is required in a plaintiff to maintain such an
action, every Tyro of the law must be acquainted with. Would his
Lordship have said, that Trover would lie for a villein? Every Tyro
of the law knows that it would not. But if a Negroe and a villein
were governed by the same laws, Trover would lie for a villein. His
Lordship’s own words therefore, and not this combination of them, are
the best comment upon his meaning; and he in me, _non tali auxilio
eget_, &c. It is enough that I have given the clew; the reader will
unravel the rest himself.

I have now only a short word or two more to add, in address to the
reader; relying, from my own consciousness, upon his candour, that
whatever errors of the head he may discover, he will impute nothing
that is wrong to the dictates of my heart. It is not the want of
humanity, it is not the want of feeling, but the possession of both,
with the love of truth, that has given birth to these Considerations.
My motives have been, to shew that America does not afford that scene
of barbarity, which misrepresentation would have painted upon it:
that cruelties and distress are to be found in much greater excess
even in this _elysium_ of liberty: that whatever is the state and
condition of Negroes, it is Great Britain and not America that is
responsible for it: that this therefore is a British, and not an
American question; as well it might be, since, if I may be allowed to
reason chymically upon the occasion, whatever property America may
have in its drugs, it is Great Britain that receives the essential
oyl extracted from them. These have been my views. I neither meant
to condemn or approve the state and condition of Negroes. I have
appealed to the law: if the traffic made of them be as agreeable
to right reason as it is according to law, I am glad of it; if it
be not, let state necessities justify state tricks. But I meant an
apology for, and not a panegyrick upon, myself.



                            CONSIDERATIONS
                                ON THE
                          NEGROE CAUSE, &c.


MY LORD,

Being, both by birth and fortune, connected with one of the Islands
in America, I was led, somewhat interestedly as your Lordship may
suppose, to attend to the arguments that were lately offered in the
Court of King’s Bench, in the Case of Somerset the Negroe _versus_
Knowles and others. It was a new case, said to be full of concern
to America; and it had engrossed much of general expectation. My
object therefore was that of information: but, without meaning to
lessen the labours, or depreciate the merits of the learned counsel
concerned therein, I must confess, that the lights thrown on the case
did by no means appear to me as, on either side, decisive of the
point in question[1]. It is true that a vast and extensive variety of
reading was shewn and discovered: the profoundest depths of learning
and science were fathomed and explored: lawgivers, philosophers,
civilians, from all historic existence, were brought to light and
examined: the examples, definitions, and opinions, which Moses,
Aristotle, Justinian, Grotius, Pufendorff, and the rest, had given
of slavery, were cited, explained, and enlarged upon: the edicts
and regulations of French, Spanish, German, Flemish, and Dutch
police on this head were mentioned and produced. But, my Lord, with
all due deference and submission, may I ask, how applicable was
this antiquated and foreign doctrine to the case then under your
Lordship’s contemplation? The politics of Aristotle are not the rules
of the Court of King’s Bench; _neither is Roman jurisprudence the
law of that court_. As a display of general knowledge, it had with
me, as it must have had with every one present, its great abundance
of merit and commendation; and I had followed the learned gentlemen,
with the highest pleasure, in their travels and pursuits abroad
in search of matter of illustration, if the case had been brought
home with them at last, and rested on its own _native_ ground and
foundation. But herein, my Lord, I found myself unsatisfied and
disappointed: for how the question remained with your Lordship as a
point of law for the judgment of the Court, I own, I was unable to
comprehend, or to learn. It is therefore, my Lord, that I now take
the liberty to offer the following Considerations to your Lordship’s
notice and observance; trusting to the importance of the subject, and
to your wonted candour, for my apology and pardon in the attempt.

I have read, my Lord, to distinguish, and have been ever taught to
know, that the Lord Chief Justice of the Court of King’s Bench is the
great and first expounder of the laws of this Realm; great and first
in dignity and in office; in your Lordship’s person, great and first
professedly in capacity also. Of these laws then, my Lord, I have
apprehended that there are but two kinds, however sub-divided into
sorts or species: the unwritten, or common law, of which judicial
decisions are the evidence: or the written or statute law, otherwise
called acts of parliament. Now, my Lord, so far as this case is
referable to either of these establishments, so far it lies before
the Court, and falls under the cognizance of your Lordship. This is
the source of enquiry leading to your judgment and determination;
and all without the circle of this, I conceive to be inapposite and
eccentric. The first question then, that would seem to arise on this
position, is, What is the common law of the land respecting the
case in issue, _considered as a case of slavery_? It was said, I
remember, by one of the counsel, that the present state of slavery
among Negroes was totally different from the ancient condition of
villenage; that it was a new species of slavery utterly unknown to
the common law of England.[2] In this opinion I readily coincide, and
agree with the learned gentleman. The next question is, What do acts
of parliament say on this head? I believe it must be said for them,
that they are, _enactively_, if I may be allowed the expression,
silent. If this be so, then the conclusion will operate in the
nature of a plea to the jurisdiction of your Lordship’s Court. If
the case be unknown to the common law, and acts of parliament are
silent thereupon, what basis must your Lordship’s judgment take?
Where there is no law, there can be no remedy. If the common law
be defective, it is the business of acts of parliament to supply
the defects: but until those defects are supplied, _sub judice lis
est_, and the matter must remain undetermined. Your Lordship may
however tell me, that, where positive law is wanting, whereupon to
ground the decisions of a Court, recourse may be had to the maxims
and principles of law, to the spirit of the constitution. The result
of this, my Lord, at best, is but matter of opinion; besides, cases
founded on the self-same principles will often have very different
determinations, according to the difference of circumstances, and the
alteration or change of times. Thus, if it had even been an original
maxim of the common law, that slavery was incompatible with the frame
and constitution of this country, yet it does not therefore follow,
that occasions have not since arisen to combat with this principle,
and to justify particular conclusions differing from these general
premises. For instance, my Lord, the impressing of seamen, is an
idea as heterogeneous to the nature and essence of this government,
as slavery painted on the blackest ground can be. It is slavery
itself, in its very definition; and what signifies the name, says
Hudibras, since the thing is the same? But the indispensableness of
the measure has nevertheless (to continue the metaphor) given colour
to the practice, and it is now seen in another light and view. But
to return: If your Lordship should be of opinion, for opinion it
must be, if there is no positive law to ground your judgment upon,
that Negroes in this country are free, I will place in opposition
to this, the opinions of the late Lord Chancellour Hardwick, and
his predecessor the Lord Chancellour Talbot, to wit, that Negroes
in this country are not free. Your Lordship perceives, that I take
your opinion upon supposition only; the other opinions are well-known
facts. To search then for the grounds of your opinion, without the
certainty of its being so, would be now premature and unnecessary:
but, knowing the opinions of these two great oracles of the law,
it is of necessity to conclude, that they had the most sufficient
foundation for them, seeing that it is allowed on every hand, that no
opinion was ever given in any case whatever with greater solemnity,
or more deliberation, than these were. Now, my Lord, to investigate
the reasons of these opinions, is one way, perhaps, to arrive at
the truth: but to follow men like these, in their researches, is a
procedure fitted only to abilities such as your Lordship’s are. As
conjecture however is open to all, though positive knowledge is but
the gift of a few; I shall therefore venture to suggest what might in
part have led the ideas of these great and wise men to the conclusion
which they have drawn, namely, that Negroes in this country do not
become free. I have before stated, my Lord, and have agreed with one
of the learned counsel, that the condition of slavery among Negroes
is unknown to the common law of this land: that it is a new species
of slavery, which has arisen within, and not beyond, the memory of
man, as is necessary to the descriptive quality of this kind of
law; and, therefore, being not under the comprehension, it cannot be
within the absolute provision of it, however reduceable thereto it
may be made, by analogy, implication, or construction. I have said
too, that acts of parliament are silent on this head. I have repeated
what I had before stated and said, in order to draw this inference:
that although the slavery of Negroes is unknown to the common law of
this country, and acts of parliament are silent thereupon; yet _the
right_ which Mr. Steuart claims in the Negroe, Somerset, is _a right_
given him by act of parliament.

I must then apprize your Lordship, that from this instant it is my
intention to drop the term Slavery, at least as a term in argument
with me. It is an odious word, that engendered this law-suit, and
now feeds and supports it with the fuel of heated passions and
imaginations. Instead therefore of such prejudiced and unpopular
ground, whereupon the case has hitherto been made to stand, I shall
take the liberty to remove its situation, to change its point of
view, and to rest it on the land of _commercial Property_; from
whence, perhaps, it will be seen, not only in a less offensive light,
but where also it may find a foundation more solid and substantial
for its support.

It is matter of course, my Lord, to say, that you are well acquainted
with all the acts of parliament relative to the royal African company
of England, from its establishment by charter in the reign of Charles
the Second down to the present time[3]. Now, my Lord, the end of
this company was trade: the object of that trade Negroes, as the
preamble to the act of the 23d of Geo. II. c. xxxi. thus expressly
declares: “Whereas the trade to and from Africa is very advantageous
to Great Britain, and necessary for supplying the plantations and
colonies thereunto belonging with a sufficient number of Negroes, at
reasonable rates, it is therefore enacted, &c. &c.” Whatever then,
my Lord, is matter of trade, your Lordship knows, must be matter
of property. The idea of the one is necessarily involved in the
other. But, my Lord, these acts have not been content with this
general construction: they have gone farther, and have themselves
set the mark and stamp of property upon Negroes. Whether, my Lord,
the Legislature is justifiable herein, or whether it has authority
by the laws of nature to do this, is not for me to determine. It
is, perhaps, a right, like many other civil rights, established by
power, and maintained by force: but this is matter of speculation
for the speculative. I here contend only, that the fact is as I
have stated it to be; and as it will appear by the statute of the
25th of Geo. II. c. xl. “which was made for the application of a
sum of money therein mentioned, granted to his Majesty, for making
compensation and satisfaction to the Royal African company of
England, for their charter, lands, forts, castles, slaves, military
stores, and all other their effects whatsoever; and to _vest_ the
lands, forts, castles, slaves, military stores, and _all other
their effects_, in the company of merchants trading to Africa;” and
wherein it is enacted, that “the royal African company of England,
from and after the tenth day of April one thousand seven hundred
and fifty-two, shall be, and they are hereby, absolutely divested
of and from their said charter, lands, forts, castles, and military
stores, _canoe-men_, _castle-slaves_, and all _other their estate,
property, and effects_ whatsoever; and that all and every the
British forts, lands, castles, settlements, and factories, on the
coast of Africa, beginning at Port Sally, and extending from thence
to the Cape of Good Hope inclusive, which were granted to the said
company by the said charter, or which have been since erected or
purchased by the said company; and all other the regions, countries,
dominions, territories, continents, coasts, ports, bays, rivers,
and places, lying and being within the aforesaid limits, and the
islands near adjoining to those coasts, and comprehended within the
limits described by the said charter; and which now are, or at any
time heretofore have been, in the possession of, or claimed by, the
said royal African company of England, together with the cannon
and other military stores, _canoe-men_, _castle-slaves_, at and
belonging to the said forts, castles, settlements, and factories,
particularly mentioned and set forth in the first schedule to this
act annexed (such stores as have been made use of in the service of
the forts, and such _canoe-men and slaves_ as may have died since the
taking of the said survey, only excepted); and also all contracts
and agreements made by or for, or on the behalf of, the said royal
African company, with any of the kings, princes, or natives, of any
of the countries or places on the said coasts; and _all other the
property, estate, and effects_ whatsoever, of the said royal African
company, shall, from and after the said tenth day of April one
thousand seven hundred and fifty-two, _be vested in_, and the same
and every of them are and is hereby _fully and absolutely vested in
the said corporation_, called and known by the name of ‘The company
of merchants trading to Africa,’ and their successors, freed and
absolutely discharged of and from all claims and demands of the said
royal African company of England, and their creditors, and every of
them, and of all and every person or persons claiming under them, or
any or either of them.”

Here, my Lord, the _legal nature_ of Negroes, if I may so speak, is
fully established and clearly ascertained, by act of parliament.
Your Lordship perceives, that they are _in hoc verbo_ declared to
be property, and are vested as goods and chattels, and as other
effects are, in owners prescribed for them. If it is observed, my
Lord, that the term Slave is made use of, and recognized by this act
of parliament; it is answered, not relatively so, as to a state of
slavery, but descriptively only of such things as shall be deemed
the property and effects of this company. The statute, my Lord, of
the 5th of His present Majesty, ch. xliv. enacts, “that such parts
of Africa as were ceded by the last treaty of Paris, together with
the goods, slaves, and other effects thereunto belonging, and which
were, by a former act, vested in the company of merchants trading
to Africa, shall now become the property of the Crown;” so that the
King, as well as this corporation of merchants, are, by the law of
the land, possessed, and are now the actual and rightful owners, of
a very considerable number of Negroes, under the afore-mentioned
description, of canoe-men, castle-slaves, women, children,
carpenters, and other artificers, particularly set forth in schedules
annexed to the afore-mentioned acts. It is also enacted, “that the
trade to Africa shall be free and open to all His Majesty’s subjects,
without preference or distinction;” and it is further provided,
“that these acts shall be taken and deemed as public acts, and shall
be judicially taken notice of as such by all Judges, Justices, and
other persons whatsoever, without specially pleading the same.” Thus
far, my Lord, do acts of parliament extend in the confirmation and
establishment of this trade to Africa. I shall now beg leave to cite
one statute more, in order unquestionably to prove what the sense of
the Legislature of this country is, with respect to the state and
condition of Negroes. This statute, my Lord, is the 5th of Geo. II.
c. viith, wherein (it being made for the more easy recovery of debts
in His Majesty’s plantations and colonies in America) it is enacted
“that, from and after the twenty-ninth day of September one thousand
seven hundred and thirty-two, the houses, lands, _Negroes_, and other
hereditaments and real estates, situate or being within any of the
said plantations, belonging to any person indebted, shall be liable
to, and chargeable with, all just debts, duties, and demands, of what
nature or kind soever owing by any such person to His Majesty, or any
of his subjects, and shall and may be assets for the satisfaction
thereof, in like manner as real estates are by the law of England
liable to the satisfaction of debts due by bond or other specialty,
and shall be subject to the like remedies, proceedings, and process,
in any court of law or equity, in any of the said plantations
respectively, for seizing, extending, felling, or disposing, of any
such houses, lands, _Negroes_, and other hereditaments, and real
estates, towards the satisfaction of such debts, duties, and demands,
in like manner as personal estates in any of the said plantations
respectively are seized, extended, sold, or disposed of, for the
satisfaction of such debts.”

Herein then, my Lord, is not to be found even the trace of an idea
of slavery considered as such by Parliament, among Negroes: but, on
the contrary, what their legal state and condition is, is conceived
and expressed in terms so plain and clear, so explicit and precise,
that the most sceptical cannot doubt the meaning, nor the most simple
fail to understand it. They are, as houses, lands, hereditaments,
and real estate, assets; and, in like manner as personal estate, to
be disposed of, for the payment of debts due to the King and his
subjects.

Upon this state and exposition then, my Lord, of these several
statutes, it would seem that I am well warranted, by their authority,
in my idea, that the right which Mr. Steuart claims in the Negroe
Somerset, is a right given him by act of parliament; and confirmed in
my proposition, that this is a case of property.

But, my Lord, in order fully to establish this doctrine, it may
perhaps be expected, that I should not only shew what the law is,
but that I should prove also what the law is not; and this must
necessarily lead me to reason somewhat more closely on the subject.

I am aware it may be objected, my Lord, that property in Negroes so
vested, is a property created in Africa for the use and purpose of
the colonies in America: from whence a question will be deduced,
Whether Negroes are property in England?

It appears, my Lord, that a trade is opened, with the sanction, and
now under the protection of parliament, between the subjects of
Great Britain and the natives or inhabitants of Africa. The medium
of this trade on the one hand are, manufactures, goods, wares, and
other merchandize: on the other, captive Negroes, or slaves; which,
for these commodities, are given in barter and exchange. It will
be allowed, I presume, my Lord, that these British traders, or
merchants, have an absolute property in their merchandize; to truck
and to traffic with this merchandize is the legal institution of the
trade: it will be absurd then to deny, that they have not an equal
interest in the thing received, as they had in the thing given. To
avoid this dilemma then, the objection recurs; that, in Africa they
may have an interest, in America they may have the same, in Europe
they have none: but assertion without proof, is argument without
weight. Where is the law that has drawn this line of distinction? Is
there any act of parliament, or clause of an act of parliament, that
has fixed and described the zones or climates wherein property in
Negroes may be held, or where it may not be held? Until I am better
informed, my Lord, I must take for granted, that no such law exists;
and if no such law does exist, the manifest conclusion is, that
where property is once legally vested, it must legally remain; until
altered or extinguished by some power co-equal to that which gave
it[4].

But as it may perhaps be to the purpose, my Lord, to try the force
and effect of these acts of trade referred to, I will, with your
Lordship’s indulgence, state a case or two, whereby their operation
in this country might be felt and perceived.

Suppose, my Lord, that a fleet of merchant ships belonging to the
African company, containing twenty thousand Negroes on board (more
or less, it is of no matter), bound from Africa to America, should,
by strange, contrary, and adverse winds, be driven and wrecked upon
the coast of England; that the ships were lost and destroyed, but
that the Negroes had been landed in safety on this shore of freedom:
would the African company, my Lord, be justified and entitled to
re-ship these Negroes in other vessels, to the end that they might
be conveyed to their destined ports in America? Or, would the pure
air of this country, as has been insisted on, set them, with caps of
liberty on their heads, free and at large; thereby robbing, for so I
must call it, these merchants of their property to the amount of one
million of money, at the allowance, and on the moderate computation,
of fifty pounds price for each individual Negroe? In this kingdom
of commerce, my Lord, where the rights of merchants are so well
distinguished, and the laws of trade are so minutely known, I should
presume that the case would not admit of a question. Of what use
would the charter of this company be to them, if the laws protective
of that charter should be found inadequate and ineffectual to the
maintenance and security of their property? But again: it has been
observed, that by the statute of the 5th of George III. chap. xliv.
a number of canoe-men, and other Negroes, in Africa, were vested in
the Crown. Now, by canoe-men, I suppose, my Lord, are meant, African
sailors. Suppose then, that one hundred, for example, of these
sailors should, by some contrivance or other, find their way into
England; would the King, my Lord, have authority to remand them to
their place of duty? or, would writs of Habeas Corpus, in despite of
this act of Parliament, protect them here; thereby determining the
right of the Crown in them? The case, my Lord, speaks and determines
for itself. Wherein then, my Lord, differs the case of Mr. Steuart
from these? Their importance is greater, but the principle throughout
is the same. I believe it is not denied that Mr. Steuart was the
_bona fide_ purchaser of Somerset, in the legal course of trade. I
do not apprehend that any evidence was offered to shew that he had
stolen him, or that he came by him otherwise surreptitiously. If
my memory does not fail me, the property was proved, by affidavit,
before your Lordship; or it was stated in the return made to the
Writ of Habeas Corpus; but in either way it is of no concern, since
the title-deeds are not now before the Court as the objects of
Litigation[5].

Here then, my Lord, without farther disquisition, I might venture
to rest the defence of Mr. Steuart, and therein the law of the case
itself. The reasoning, perhaps, may be said to be new, and it is
opinion only of my own that supports the doctrine: but, I trust,
that, upon examination, it will be found to be not therefore the
less conclusive. However, as I am upon the subject, it may not be
amiss that I should pursue it somewhat farther; and, by extending the
chain of enquiry, strengthen and enforce the arguments that have been
already offered and applied. It was said, by one of the plaintiff’s
counsel, that municipal laws were binding only in the state wherein
they were made; that, as soon as a member of that state was out of
it, they ceased to have their influence on him; and the laws of
nature of course succeeded to him. As a general proposition, my
Lord, this might have had its admission; but even as such, it is not
without its exception. I think I have the most classical authority
of the law to say otherwise. For instance, allegiance, which is the
duty that every subject owes to the sovereign, or sovereignty, of
that particular state to which he belongs, is a municipal law; and
yet, neither time, place, nor circumstance, can alter, forfeit, or
cancel, the obligation. An Englishman (says Judge Blackstone)[6],
who removes to France or to China, owes the same allegiance to the
King of England there as at home, and twenty years hence as well as
now. But, my Lord, with regard to the particular application of this
proposition, when the gentleman endeavoured to make a distinction
between the laws of the colonies and the laws of England, in my
apprehension he was extremely mistaken. I fancy the relationship
and dependency of the children colonies on their mother country did
not occur to his mind. The circumstance of their having internal
laws of their own, by no means argues a difference in those laws,
independent of the laws of England. As well might it be said, that
the laws of England are not the laws of the county of Kent, because
by the custom of gavelkind they differ from the general laws in the
disposition of Estates; and so of Borough-English, and wherever in
this kingdom particular customs are to be found or met with. For, my
Lord, it is not only a first and leading principle of legislation
in the colonies, arising out of their original grants and charters,
and enforced by the royal instructions given to commanders in chief
there; but it is also enacted by the statute of the 7th and 8th of
William III. ch. xxii. “that no law, usage, or custom, shall be made
or received in the plantations, repugnant to the laws of England:”
so that, by these restrictions, the very _leges loci_ (wherein, from
situation, from climate, and from other circumstances, one might
naturally suppose some difference) are forced as much as may be to a
conformity with the constitution and laws of this country; and to
prevent even the accident of a contrary occurrence, your Lordship
knows, that there is a counsellour appointed to the board of trade
here, whose especial business it is, to examine all the colony
acts, and thereupon to make his report, if necessary, previous to
the royal confirmation of them. If property, therefore, in Negroes,
was repugnant to the law of England, it could not be the law of
America: for (besides the reasons already assigned) by the same
statute wherever this repugnancy is, there the law is _ipso facto_
null and void. But I will further endeavour to elucidate this matter,
by begging a question or two, by way of case in point. Let it be
admitted then, that a colony of English had embarked from hence, in
order to establish settlements for themselves in some one of the
late ceded islands in the West Indies, and that they were arrived,
it may be said, in the island, _where English troops, trampling on
the laws of God and man, are slaughtering even to extirpation a
guiltless race of Caribs, the aborigines of the country. I mean the
island of St. Vincent, an island under the tutelage of a Saint too_!
And suppose that, upon their arrival there, the Legislature of that
country had taken it into their heads to pass an act similar to the
25th of Geo. II. ch. xl. already referred to, thereby vesting these
people as property, in certain owners allotted to them: I should be
glad to know, my Lord, whether this act could possibly have operated
as a law, and whether it was not, _eo instanti_, upon its being
enacted, destitute and void of all force, validity, and effect? Your
Lordship’s answer doubtless would be, that this act must have been
its own executioner, that it was _felo de se_. Why then, my Lord,
does not the principle directive of this conclusion on the case of
the colony of English, determine likewise on the case of the Negroes?
If an act of an American plantation making property of a colony of
English there, is nullified _ab initio_ from its being enacted, why
is not an act making property of a colony of Africans susceptible of
the same nullity? The reason, my Lord, is twofold: first, because
in the one act, such a law is not only repugnant to, but absolutely
subversive of, the laws of England: secondly, because in the other
act, such a law is not only consistent with, but founded on, the laws
of England: and this, my Lord, proves to mathematical demonstration,
that the colony laws are not only in general dependant on the laws of
England, but, in particular instances, owe their origin and source
to them: so that, as the refracted rays of light, diverging from one
point through a prism, may be concentred in the same focus; in like
manner may these laws, notwithstanding their number and variety, be
collected and disposed of in one common system or digest, as parts
of the same whole. From what therefore I have here suggested, my
Lord, I mean to conclude generally, that the right and property, not
only of Mr. Steuart in his Negroe Somerset, but of every subject
of Great Britain in his Negroe or Negroes, either in the colonies
or elsewhere, is a right and property founded in him by the law of
this land; that the royal grants, letters patent, and charters, for
and of the African trade and company, confirmed and established by
acts of Parliament, are the foundation whereupon all the laws of the
colonies, respecting their Negroes, are built; and that, without such
sanction, those laws could never have been made. For, my Lord, it
is evident that the colonies could not have had power of themselves
to institute this trade to Africa; neither have they the means to
support it. Without this trade then to Africa, no Negroes could have
been imported to them; and if they had had no Negroes among them,
they had needed no laws appertaining to Negroes[7].

But, my Lord, it may be urged, that although the laws of England may
make property of Negroes, they do not make slaves of them. I should
imagine that, although an individual, I might answer individually
for every American subject of the King, that they do not desire
any greater interest in their Negroes than that of property. It is
self-sufficient to answer all their purposes, and to produce all
that great good which this nation experiences therefrom. It is a
supposition of inhumanity, I hope, inapplicable to these people,
that they should wish to make slaves of their Negroes, merely for
the sake of slavery; and if it should appear, that there is no
such law existing in America, as the law of slavery, considered as
such, I should infer that the contrary presumption was fittest to
be entertained and received. The law respecting Negroes there, my
Lord, is the law of property, consentaneous to the law of England.
By this law they are made real estate, for the purpose of descent,
and goods and chattels _quoad_ the payment of debts. This is the
original and fundamental law concerning Negroes. I do not remember
ever to have seen the word Slavery made use of, in any law, of any
colony, in America. I admit that Negroes are there termed slaves:
but I will tell your Lordship why. In the criminal law, where they
become necessarily the objects of punishment, it is essential that
they should have some descriptive name or title given to them. It is
for this reason, therefore, that they are there, and there only so
called. As they had been already defined to be property, as Negroes,
it could not be said that, if property should strike his master,
property shall be punished; but it is said, that if a slave should
strike his master, this slave shall be punished accordingly. Now in
the antient law of England, my Lord, when slavery was part of the
constitution, your Lordship knows, that not only the villein was
described, but the law of villenage or bondage was also known and
laid down. In the laws of America, the slave is made mention of, for
the reason assigned; but the law of slavery, however impliedly, is no
where expressly to be found.

But here, my Lord, I must beg leave to make a short digression,
intentionally to wipe off an imputation, which by one of the
plaintiff’s counsel was thrown on the owners and possessors of
Negroes in America. In the course of his pleading, he took occasion
to draw a horrid and a frightful picture of the barbarity, and
cruelties, that were exercised on these beings in the colonies; and
concluded with hoping, that such practices would for ever remain
forbidden to this country. Your Lordship knows, that wherever order
is, there discipline must ensue. Like as cause and effect, they
are inseparable one from the other. Now it is not to be presumed,
that an hundred thousand Negroes are to be held in obedience to
ten or fifteen thousand owners (for this perhaps may be found to
be near the average) without some means or methods, which, from
their accidental application, might so generally operate on their
fears, as to produce the end required. It is so in the case of the
navy; it is so in the army of every country in the known world.
A soldier would not put himself in the front of a battle, to run
the risque of being shot through the head, if he did not know that
this would be the certain consequence of his desertion. The fear
of the latter gives him courage to engage in the former: or, how
otherwise could fifty officers, perhaps, command a regiment of a
thousand men? But, my Lord, the design of this gentleman’s groupe of
figures, was to induce a belief in the Court, that English feelings
were to revolt at American punishments. As martial law is not the
law of Westminster-hall, it is likely that he has not studied it:
but, living in this country, I cannot suppose him a stranger to
the effects of it. Who have not been eye-witnesses to the hundreds
of stripes that have been given to soldiers on the parade of St.
James’s? I saw once, my Lord, two sailors [who were perhaps impressed
men too] under the sentence of receiving five hundred lashes
each, flogged on their naked backs along the sides of thirty-four
men of war, lying at anchor in the harbour of Spithead. Was such
a punishment ever known to have been inflicted on any Negroe in
the American plantations? No, my Lord: the laws of every colony
forbid it: but a stronger law than these prevents it, the law of
self-interest. Negroes are the riches of those who possess them.
Land, without their aid and assistance, in order to cultivation,
is useless, and of no value. If their healths are impaired, their
labour is lost, and profit ceases. If their lives are destroyed,
their places must be supplied with more difficulty, and at a much
greater expence, than is commonly supposed. The good consequence of
which, my Lord, is, that the state of Negroes, _cæteris paribus_,
in America, is preferable, nay infinitely more desireable, than the
condition of the poorer sort of people residing even in this boasted
happy isle. I will not say, my Lord, that this is a rule without
an exception. There are madmen in all parts of the world, who, as
such, act diametrically opposite to their interest. Such there are
in America: but your Lordship sees, that the observation is founded
on reason; and I can assure your Lordship, that it is the effect of
general experience. But, my Lord, I cannot quit this subject without
making all due allowance for the learned counsel’s zeal for his
client, and for the warmth of his youth, which probably might have
hurried him into this ill-grounded and uncalled-for reproach. It was
ill-grounded, as, I hope, I have proved: it was uncalled-for, because
not necessary to the question; and could no otherwise have been
applied or received, than as mere _argumenta ad passiones_: which,
however admissable to the ears of a jury, to the distinguishing eye
of a court, never fail to carry with them their own impropriety. But
in justice to the gentleman, in other respects, I am called upon
to say, that it was with infinite pleasure I perceived those rays
of genius and abilities in him, which promise to shine forth so
conspicuously, to the ornament of this country, and to the honour of
Barbadoes, his native island, in America[8].

I come now, my Lord, to say, that I hope it will not be imputed to me
as vanity, that I have ventured to suggest what might in part have
led the ideas of those great and wise men, the Lord Chancellours
Talbot and Hardwick, to the conclusion which they have drawn, namely,
that Negroes in this country do not become free. I was encouraged
in the undertaking, by the greatness of their authority. I was
enlightened in the pursuit, by the evidence of their opinion. I
thought myself justified in resting their chief reasons and motives
on the principles of property; and I will produce the opinion itself,
as the warrant of my justification:

  “We are of opinion, That a slave, by coming from the West Indies,
  either with or without his master, to Great Britain or Ireland,
  doth not become free; and that his master’s _property_ or _right_
  in him is not thereby determined or varied; and baptism doth not
  bestow freedom on him, nor make any alteration in his temporal
  condition in these kingdoms: We are also of opinion, that the
  master may _legally_ compel him to return to the plantations[9].

                                                          “P. YORK.
                                                          “C. TALBOT.”

  Jan. 24, 1729.

Upon this opinion, my Lord, I shall make no other remark, than that
right and property seem to be the obvious ground and foundation of
it, or the hinges whereupon the whole is made to hang and to turn.

But, my Lord, I will now admit, that, what is held to be law, is at
variance with this opinion. It is laid down “that a Slave or Negroe,
the instant he lands in England, becomes a freeman;” that is, “the
law will protect him in the enjoyment of his person and his property;
yet with regard to any right which the master may have acquired to
the perpetual service of John or Thomas, this will remain exactly
in the same state as before.” The interpreters of this law, my
Lord, may be _right_ in point of _reason_; but, I submit it, that
they are _wrong_ in point of _law_[10]. The case is this, my Lord:
seeing that Negroes are human creatures, it would seemingly follow
that they should be allowed the privileges of their nature, which,
in this country particularly, are in part the enjoyment of person
and property. Now, from hence a relation is inferred, that has not
the least colour of existence in law. A Negroe is looked upon to
be the servant of his master; but by what authority is the relation
of _servant_ and _master_ created? Not by the authority of the
law, however it may be by the evidence of reason. By the law, the
relation is, as _Negroe_ and _Owner_: he is made matter of trade; he
is an article of commerce, he is said to be property; he is goods,
chattels, and effects, vestable and vested in his owner. This, my
Lord, is the law of England, however contradictory to, or subversive
of, the law of reason[11].

Now as to the fact of property in Negroes, without exception to this
kingdom or limitation to other countries, I am supported in opinion
by the authority of the learned Judge Blackstone; though he ascribes
the rise of this property to a source very different from me. In the
chapter of, Title to things personal by occupancy, he says, “As in
the goods of the enemy, so also in his person, a man may acquire
a sort of qualified property, by taking him a prisoner in war, at
least till his ransom be paid. And this doctrine seems to have been
extended to Negroe servants, who are purchased when captives, of the
nations with whom they are at war, and continue therefore in some
degree the _property of their masters_ (he should have rather said
_owners_) _who buy them_.” Here then he refers to the law of nations,
for the establishment of that which I appeal to the law of England
for. Now, although the law of nations might have been a good ground
to rest the municipal law of this country upon, and might have served
as a preamble to, or reason for, an act of parliament; yet it is not
within my conception, how, in such an internal concern as this is,
the law of nations could have been the law itself. For example, if
in the return to the writ of Habeas Corpus in this case, it had been
set forth, that Negroe servants are purchased when captives of the
nations with whom they are at war, and therefore the _law of nations_
gives their masters a property in their persons; would your Lordship
have thought this a _lawful_ plea for the remanding of Somerset? If
not, your Lordship finds that the fact of property is admitted by
the learned Judge, without the proper foundation of law to support
it. But he proceeds to say, “though, _accurately speaking_, that
property consists rather in the perpetual service, than in the body
or person of the captives.” _Accurately speaking_, my Lord, I join
issue with the learned Judge: but, _legally speaking_, the law is
as he had stated it to be. Those who speak accurately reason from
the real nature of Negroes, and draw their conclusions from thence:
the Lords Talbot and Hardwick spoke legally, and drew their opinions
from the fountain-head of law. Besides, my Lord, I conceive it to be
impossible that the law should be as these interpreters or reporters
have made it to be; because the result of it is plain—inconsistency,
and positive absurdity. If Somerset is protected by the law of
England in the enjoyment of his person and property, how, in appeal
to common sense, can Mr. Steuart’s right in him remain exactly in the
same state as before? “Yes, it may be said, he has a right to the
perpetual service of him; for this is no more than the same state of
subjection for life, which every apprentice submits to for the space
of seven years, or sometimes for a longer time.” But by what mode or
method does Mr. Steuart acquire this perpetual right to his service?
There is no indenture of apprenticeship on the part of Somerset to
him: there is no written contract of any sort or kind whatever,
there is no parole agreement between them, to enforce this right of
service. How is it to be maintained then? If by the purchase of him,
property is the offspring of purchase; and, as such, Mr. Steuart
claims him. If he is not his property, he has otherwise no right in
him, nor to his services, and, again, if he is his property, who
shall disseise him thereof?

As I began, my Lord, with making a distinction between slavery and
property, and have persisted in their legal difference relatively
to the state and condition of Negroes, some farther explanation
on this point may perhaps be looked for and required of me. I am
sensible it may objectively be said, that in every kind of slavery
there is an included degree of property, more or less limited or
extended; and that this kind of property therefore in Negroes is but
an accumulated degree of slavery: so that the distinction I have made
is a distinction without a difference, and a mere contentiousness
about words. But, although I admit the truth of this objection in
part, I must deny, in the whole, its application to the principles
of my argument. Slavery, my Lord, is that state of subjection,
which mankind, by force or otherwise, acquire _the one over the
other_. In every society therefore where this state of subjection
prevails, the object and subject of those laws necessary for the
regulation thereof are, what? _are human nature itself_. Let it
be considered then whether _human nature_ is either the object or
subject of the laws of England, respecting the state and condition of
Negroes. And here, my Lord, I beg leave to assert, that the appeal
I have already made to those laws maintains the contrary matter of
fact, with the undeniable proof of self-evidence. But it may again
be urged, that authority, however respectable, is not the test of
truth; and therefore, says the disputant, shew me the reason, the
_Cur_, the _Quare_, the _Quamobrem_, of these laws. To which, in
the language and postulate of the Greek Philosopher, I reply; that,
as matter of fact is the Δὸς ϖοῦ ϛῶ of my argument, beyond this, it
is not incumbent on me to extend my enquiries. And yet, my Lord, a
research of this nature being perhaps founded upon no impertinent or
unmeaning curiosity, the suggestions even of fancy and imagination
may not be here undeserving your Lordship’s attention; and as such
the subject is, in this view, of course not unworthy my notice.
It being then evidently the will, it is not to be presumed, till
the contrary appears, that it was the effect also of the wisdom of
parliament, that Negroes under the law should not be considered
as _human beings_; and therefore I am led to surmise that this
determination of the Legislature might have arisen from one or the
other of two motives or considerations: the one _physical_, the other
_political_. With respect then to the physical motive, your Lordship
need not be told how much the origin of Negroes, the cause of that
remarkable difference in complexion from the rest of mankind, and the
woolly covering of their heads so similar to the fleece of sheep,
have puzzled and perplexed the Naturalists of all countries for
ages past. It was a subject of the deepest reflection to the great
and learned Mr. Boyle; and what could engage his divine abilities,
without satisfaction either to himself or others, is likely to remain
among those _arcana_ of nature that are not to be revealed to human
understanding. But, although these phænomena in nature are not to be
accounted for, and therefore admit of no principle of law inferible
from them; yet their very incomprehensibleness, when compared with
other circumstances more known and better understood, may serve
to this end, as so many lesser weights in the scales of greater
probability. Now, my Lord, it is an opinion _universally_ received,
that human nature is _universally_ the same: but I should apprehend
that this was a proportion rather taken for granted, than admitted
to be proved: for although the proper study of mankind is man, and
therefore the universality of such an opinion is _prima facie_
evidence of its truth; yet, it is to be observed, that, of all other
studies, the science of man has been least of all cultivated and
improved. Man only, who examines all Nature else, stands unexamined
by himself. If we look into the vegetable and mineral kingdoms of
this world, we shall perceive a scrutiny made in them the most nice,
accurate, and comprehensive, we shall find these grand divisions
of nature arranged in classes, orders, kinds, and sorts: we shall
contemplate systems morally perfect. If we take a view of the animal
kingdom below ourselves, we shall be witnesses there also of the same
order, regularity, and perfection. Why then is human nature exempt
from this disquisition and arrangement? Are men afraid to turn their
eyes upon themselves, lest they behold themselves in the mirror of
truth? Or is it pride, or vanity, that causes this neglect? Yes,
men would be angels, angels would be gods, says Mr. Pope[12]; and
yet man, as Dr. Lister observes[13], is as very a quadruped as any
animal on earth; and whose actions are most of them resolvable into
instinct, notwithstanding the principles which custom and education
have superinduced. Of other animals then, it is well known, there
are many _kinds_, each kind having its proper _species_ subordinate
thereto: but man is one kind of animal, and yet, without distinction
of species, _universally the same_. Does not this seem to break in
upon and unlink that great chain of Heaven, which in due gradation
joins and unites the whole with all its parts? May it not be more
perfective of the system to say, that human nature is a _class_,
comprehending an _order_ of beings, of which man is the _genus_,
divided into distinct and separate _species_ of men? All other
species of the animal kingdom have their marks of distinction: why
should man be universally indiscriminate one to the other?

The great Mr. Locke says[14], that reason is supposed to make the
characteristic difference between man and beasts: but, what is the
characteristic that distinguishes man from man? That there may and
should be such a distinction, I have already endeavoured to shew; and
I am apt to think that this is a question not without its answer.
The learned Dr. Hutchinson[15] has demonstrated the existence of
_a moral sense_ in, and peculiar to, human nature; which as it
serves essentially to distinguish man from beasts, and to raise him
from the tenth to the ten thousandth link of the chain, so is it,
in my humble apprehension, an evident criterion of the specific
difference between man and man. Now Mr. Locke, speaking of reason as
that faculty whereby man is distinguished from beasts, says, that
beasts have reason in common with men; in which however he is to be
understood, that beasts possess the faculty, and in some measure
have the use, of reason; but man’s superiority over beasts consists
in the power of exerting that faculty, and in the compound ratio
of its exertion. As beasts therefore have the faculty of reason,
and it is the exertion in degree of that faculty (particularly in
obtaining abstract ideas) that creates the great difference between
man and beasts: so by the same parity of reasoning, the _moral sense_
being a faculty of the human mind common to all men, the capacity of
perceiving moral relations, the power of exercising that faculty,
and the compound ratio of its exercise, is that which makes the grand
difference and distinction between man and man. All nature, my Lord,
which is the art of God, is wisely fitted and adapted to that use and
purpose for which it was ordained; and the same observation is to
be made even in the art of man. A flea is not less perfect than an
elephant because of its size: neither is the cup that holds a pint
less compleat than the vessel that contains an hundred gallons; when
both are full, the end for which both were designed is answered and
fulfilled. The use then to be made of this doctrine, my Lord, is,
that as experience, observation, and experiment, are the foundations
upon which all speculative philosophy is raised; so, from experience
and observation, I judge that the truth of this hypothesis may be
very clearly proved and demonstrated. Now, in order to this, it is
necessary to have recourse to the histories of nations: to read, to
examine, and compare them, one with the other. To observe the moral
improvements had by them, to remark the social virtues that prevail;
and this will bring me to the accounts that have been given of
Negroes (for histories they have none of their own) and consequently
back to the subject of this address to your Lordship. But, my Lord,
forbearing to trouble your Lordship with a detail of these accounts,
I shall, referring them to your Lordship’s memory, content myself
with the bare mention of a few facts only[16].

Mr. Guthrie, in his account of Africa from the tropic of Cancer to
the Cape of Good Hope, says, “The history of this continent is little
known, and probably affords no materials which deserve to render
it more so. We know from the antients, who sailed a considerable
way round the coasts, that the inhabitants were in _the same rude
situation_ near 2000 years ago in which they are at present; that
is, they had _nothing of humanity_ about them _but the form_. This
may either be accounted for by supposing, that nature has placed
some insuperable barrier between the natives of this division of
Africa and the inhabitants of Europe; or that the former, being so
long accustomed to a savage manner of life, and degenerating from
one age to another, at length became altogether incapable of making
any progress in civility or science. It is very _certain_ that all
the attempts of the Europeans, particularly of the Dutch at the
Cape of Good Hope, have been hitherto ineffectual for making the
least impression on these savage mortals, or giving them the least
inclination or even idea of the European manner of life.”

All other writers on this subject agree in these relations, or
furnish others similar to them: nor have I been able to find one
author, by whom I could discover that there was any sort of plan or
system of morality conceived by these tribes of Africa, or practised
among them. Their barbarity to their children debases their nature
even below that of brutes. Their cruelty to their aged parents is
of a kin to this. They have a religion, it is true: but it is a
religion which seems the effect only of outward impressions, and
in which neither the head nor the heart have any concern. They have
laws founded on principles, which plainly prove the defective use of
the _moral sense_, as appears in this instance among the rest. Their
Judges are judges and executioners at one and the same time. When a
criminal is condemned by them, the Chief Justice first strikes him
with a club, and then all the rest of the Judges fall upon him, and
drub him to death; and neither this, nor any other of their customs,
can time make any alteration in, nor precept nor example amend.
Indeed, if it were otherwise, it would perhaps be unnatural: for the
Ethiopian cannot change his skin, nor the Leopard his spots. From
this then, my Lord, I infer, that the measure of these beings may be
as compleat, as that of any other race of mortals; filling up that
space in life beyond the bounds of which they are not capable of
passing; differing from other men, not in _kind_, but in _species_;
and verifying that unerring truth of Mr. Pope, that

      “Order is Heaven’s first law; and this confest,
      Some are, and must be, greater than the rest:”

The application of what has been said, is, that the Legislature,
perceiving the _corporeal_ as well as _intellectual_ differences of
Negroes from other people, knowing the irreclaimable savageness of
their manners, and of course supposing that they were an inferior
race of people, the conclusion was, to follow the commercial genius
of this country, in enacting that they should be considered and
distinguished (as they are) as articles of its trade and commerce
only[17].

Thus, my Lord, borne on the wings of Fancy, and led by Imagination’s
wily train, have I ventured in untrodden paths to trespass on
philosophic ground; to which offence, however, pleading guilty at
your Lordship’s bar, I submit to the justice of the sentence, be your
Lordship’s judgment whatever it may.

But having now discussed the _physical_ motive, which, as it is
apprehended, might have occasioned the _civil_ existence, if I may
so say, of Negroes in this kingdom; the _political_ consideration
proposed comes next in the order of enquiry. It must be observed,
my Lord, that if the cause already assigned be the real cause,
whatever is to be advanced on this head, is useless and superfluous.
Both causes cannot be true at one and the same time. They are meant
and must be received in the alternative; or as the two strings of
Nimrod’s bow, of which if either failed, the other supplied the want;
and of whom Mr. Pope thus speaks:

      “Bold Nimrod first the savage chace began,
      A mighty Hunter, and his _game_ was _man_.”

Now the physical motive supposes a difference of species among men,
and an inferiority of that species in Negroes: whereas the political
consideration, on the other hand, infers an universal sameness in
human nature; that is to say, in fact, that Englishmen are Negroes,
and Negroes are Englishmen, to all _natural_ intents and purposes.
For what signifies the black skin, and the flat nose, as the great
Baron Montesquieu would insinuate[18]? And yet methinks, if the
Baron had had a black skin, and a flat nose, the world never would
have had the benefit of his _Esprit des Loix_. Upon this ground
then, the question that arises is, what could have given rise to
this degradation and debasement of human nature? If these our
fellow-creatures were instruments necessary for the colonizing of
America, and to this end compulsory laws were expedient also, why
were these laws not made suitable and suited to their nature? Why
were Negroes ordained a _mortuum vadum_, instead of a _vivum vadum_,
(so to speak for comparison sake) to those under whose dominion they
came? Might not the laws of villenage have been revived _quoad_
them? Might not other laws of slavery have been enacted for their
government?

Here is it then that policy, which is the object of my discovery,
must have intervened. Now the planting of the colonies opening with
the 16th century, and consequently commencing nearly with the reign
of James I. it appears, that during the reigns of this race of kings,
their cultivation and improvement were so rapidly had, that, from
a state of infancy, before the end of the reign of Charles II. they
had grown up and increased to the vigour of manhood. It is in this
period of history, therefore, my Lord, that I am to search for, and
to trace, the cause of this allotted condition of Negroes: but, as
it cannot be expected that I should here enter into the particulars
of those times, so neither is it necessary to my purpose. A single
incontrovertible observation will serve to rest the whole of what
I have to offer on this subject; and which is this: that from the
_alpha_ of the reign of James I. to the _omega_ of the reign of
James II. _to enslave_, was the fixed principle and uniform plan
of government. This then at once accounts for the toleration of a
measure, so inconsistent with the principles of the constitution of
this country: but the reason upon which the measure was grounded is
not so immediately obvious. From things that are more known, things
that are less known must be deduced. Now it is a maxim in politics,
that to obtain an end, direct means are not always to be pursued, or
rather that _indirect_ means are allowed to be practiced; and this
will lead me to mention two questions that have been already stated.
Why were not the laws of villenage enforced? or why were not other
laws of slavery enacted for the government of these people? The
answer is plain; these were edged tools, which the complexion of the
times would not suffer the use of. Enough was the plan of government
exposed, though hid under the cloak of religion. Such a step would
have left it naked, and without a covering. Policy therefore
prevented that which the jealousy of the people would have forbidden.
In vain would have been the argument, that these laws were intended
for operation in the new world of America. _Ever to begin at the
extremes_ is a well-known rule in the art of attaining to despotism.
The more distant the design, the deeper laid is the scheme, and the
more sure in its consequences. As in the body natural, even so is it
in the body politic. The disease that lays hold of the toe, often
finds its way to the heart. Gradual encroachments by imperceptible
movements are the most dangerous symptoms. They call off attention
to remedies, and lull suspicion to sleep. But may all lovers of
liberty ever have their eyes open and awake to this despotic process!
He that would tyrannise in America or abroad, awaits only the
opportunity of becoming a tyrant at Home; but thank God, my Lord, the
present times with us, of all others, give least occasion for any
apprehensions of this sort. But to return. Instead then of that Demon
Slavery being called in to preside over Negroes, Trade, the guardian
angel of England, was made the ruler of them. This I attribute to
policy; which, however seemingly more constitutional, was not less
favourable to the ruling principle of the Crown. I have already
admitted, that to erect corporations, and to grant Letters Patent for
the purposes of trade, are in the Crown its undoubted prerogative;
but, considering Negroes as human creatures, and upon a level with
ourselves, I submit it to your Lordship, that the Crown had no right
to make slaves of them; whatever the uncontroulable power of an act
of parliament might do: and yet Charles the Second, by his Charter
only to the Duke of York, _enslaved_ whole nations of these people.
The apology, I apprehend, for this, my Lord, will be; that neither
this Charter, nor any other Grant, have ever conceived Negroes in
this light and view; as, relation being thereunto had, will more
fully appear[19]. If so, my Lord, two things come out in proof:
_presumptively_, that the Crown had no right of itself to make slaves
of Negroes, or it would, in those days at least, have exerted it;
_positively_ by these authorities themselves, that Negroes are not
considered as slaves under the idea of slavery, but merely as matter
of commercial property, and articles of the trade of this country.

If now, my Lord, I have supported the doctrine which I took upon
me to evince, and have satisfactorily shewn, that property is the
gift of action in this case, thereby proving that Mr. Steuart may
of course legally compel Somerset to return to the Plantations, I
shall leave its decision to your Lordship, on a quotation of your own
words: “It is not my business to alter the law; or to make it, but to
find the law.”

It remains then only to observe, that if Somerset is the legal
property of Steuart, he, Somerset, cannot legally be entitled to
the writ which he has sued out in aid of relief. The writ of Habeas
Corpus is a writ of right given to the subjects of the Crown of
England, for the security of their liberties. If Somerset can fall
under this predicament and description, he is open to the benefits
that may arise therefrom; but if the law has already fixed the _fiat_
of property on him, I apprehend it is a _legal_ exception to the
writ, and his right is foreclosed thereby.

Having said thus much, my Lord, on one side of the question, I do not
mean to conceal my sentiments on the other. My aim is, to establish
the truth: my wish, that what is right should be done. Whatever then
is here the result of my reflections, to obtain the end I propose, is
necessary to your Lordship’s information.

When this matter, therefore, was first in agitation, it stated itself
thus generally to my comprehension: that as it was a case which
existing for two centuries and upwards, and never receiving finally
any judicial determination, it had better remain in the situation it
was. It compared itself to me with some cases of royal prerogative,
and of parliamentary privilege, which were excellent in theory, but
subject to inconvenience in practice; and whose best and safest law
was that of suspense: but, my Lord, when I found that the case was
to be argued, and the judgment of the Court of King’s Bench taken
thereupon, my hopes were, that, if it was possible to counteract
the law of the land, the decision would be in favour of the Negroe:
for although the knowledge of their being free might spirit them
up to insurrections in America, yet it would put a stop to their
importation here by their owners, and they would be more usefully
kept and employed in the colonies to which they belonged. On the
contrary determination too, my Lord, it being solemnly adjudged that
Negroes in this country were not free, I foresaw that this fatal
consequence might follow: that the trade from Africa to America
would be diverted from Africa to England; and Negroes, in process
of time, would be sold in Smithfield market, as horses and cattle
now are. Each farmer would have his Negroe to drive his plough, each
manufacturer his slave under his own controul; and America that was
conquered in Germany, as was the saying of a very great man, would
become America ruined in England.

A great deal, my Lord, was urged by the learned counsel, of the
edicts of France, relative to Negroes: but it does not occur to my
memory that this, among the rest, was taken notice of. It may be,
that I am misinformed with respect to the fact; but I will tell your
Lordship how I came by it. I have been myself, my Lord, a traveller
through every province of France, and during my tour I never had
opportunity of seeing more than two Noirs (or Blacks) as they are
there called; one of which was at Marseilles, the other at Bourdeaux,
the two chief ports of trade with the American colonies of that
kingdom. Knowing therefore the intercourse with, and observing the
fewness of these people, I was led to enquire into the reason of
it; when I was informed, that there was an absolute edict of the
present King of France, prohibiting the importation of them into
that country, upon this political idea, that otherwise the race
of Frenchmen would, in time to come, be changed. Greater much, my
Lord, is the reason in this country to apprehend this event. It was
in representation, if not in proof, to your Lordship, that there
were already fifteen thousand Negroes in England; and scarce is
there a street in London that does not give many examples of that,
which, with much less reason, had alarmed the fears of France.
Upon the whole, then, my Lord, let America and England look up to
your Lordship, as the man qualified to draw the line of propriety
between them. To this end, let a Bill originate in the House of
Lords, under your Lordship’s formation: let slavery, so far as
property is such in Negroes, be held in America: let the importation
of them be prohibited to this country, with such other regulations
and provisions as your Lordship shall see fit to lake place. Some
centuries back, slavery was the law, and slaves the objects of
that law, as I observed before, in this kingdom: but civilization
has extinguished the existence of both. When America shall be what
England is, some yet undiscovered land will become what America is.
In short, my Lord, by this act you will preserve the race of Britons
from stain and contamination; and you will rightly confine a property
to those colonies, upon whose prosperity and welfare the independent
being of this country rests.

                                                       SAMUEL ESTWICK.

  Portman-Square, Dec. 10, 1772.


FINIS.



FOOTNOTES:

[1] The late publication of Mr. Hargrave’s argument, as one of
Somerset’s counsel, gives me the satisfaction of seeing in the whole,
what I had before the opportunity of hearing only in part. I confess
I know not which most to admire, the labour of this Gentleman’s
researches, or the ingenuity with which his collected materials
are systematized and disposed. It is a history, perhaps the most
compleat that is, of the rise, progress, decline, and general state
of Slavery; and, whilst it does as much honour to his humanity
as to his understanding, will serve as a light to enlighten the
footsteps of posterity, should a revival of the laws of Villenage
be ever attempted in this country: but, having said this, I must
recur to my former opinion, that, learned as his arguments are in
general, in this particular case they are founded on false and
mistaken principles, and are totally inapplicable to the merits of
the present question. His first principle or point is, (vid. p. 12.)
that “whatever Mr. Steuart’s Right may be, it springs out of the
condition of slavery; and accordingly, says he, the return _fairly_
admits slavery to be the _sole_ foundation of Mr. Steuart’s Claim.”
Thus, with a _Petitio Principii_, which neither is, can, or will
be admitted, and upon a manifest error in the return made to the
writ of Habeas Corpus, does the argument of Mr. Hargrave commence,
rest, and depend. But if, instead of admitting, there being no law
to countenance such admission, the return had relinquished the
right, and denied the claim, of slavery: if it had set forth, that
Mr. Steuart was the _bona fide_ purchaser of Somerset in the legal
course of trade: that he had bought him out of a ship’s cargoe
from Africa, together with some elephants teeth, wax, leather, and
other commodities of that country, for which he paid his money, or
otherwise gave in exchange the manufactures of this country: that he
had brought him here as an article of commerce with his other goods,
under the sanction of the laws of trade: that he meant to export him
hence under the same protection, with his other property, in order
to be sold for his better advantage in one of the English Colonies
in America: that a writ of _Habeas Corpus_ might as well issue on
account of his elephants teeth, his wax, his leather, and his other
commodities of that country, as on account of his Negroe, they being
expressly under the same predicament of law, and so forth: I say,
under such circumstances, and upon such a return, what would have
become of this stately pile of elaborate argument?

High-built, like Babel’s tower, to magnify the fall! Must not the
lawyers have saught new ground to build upon? Must not the Court have
lost that error of insufficiency, which now supports its only right
of Judgment?

_Note_, Although this argument of Mr. Hargrave is said to have been
delivered in the particular Case of Somerset _a Negroe_, yet it is
meant and intended as a course of reasoning upon the general question
of the state and condition _of Negroes_.

[2] It is said in Mr. Hargrave’s argument, p. 23. “such was the
expiring state of domestic slavery in Europe at the commencement of
the 16th century, when the discovery of America and of the Western
and Eastern coasts of Africa, gave occasion to the introduction of
a new species of slavery.” If the arguer had said _a new species
of traffic_, instead of a new species of slavery, he had expressed
the real matter of fact; seeing that the law by which this concern
is regulated, considers it in no other light or view whatever. For
this reason too, it cannot be enumerated among the several species
of slavery that he has mentioned, and taken notice of; each distinct
species having its distinct laws, appropriated thereto distinctly,
as the laws of slavery. Among the Portuguese and Spaniards, I have
been given to understand, that Negroes are, and have ever been
considered, as with the English, matter of Property, and articles
of commerce in the common course of traffic; and were so estimated
by the French, until the refined age of Lewis XIV. gave rise to a
new institution of law, under the title of the _Code noir_, for the
particular government of Negroes in their American colonies. It were
to be wished that a fit and proper digest of this sort could take
place with us: but, I fear, the difficulty (which arises not so much
from the subject, as from the means of introduction) will prevent the
execution of any such plan. From the unlimited power of the Crown of
France, when laws are made, it is easy to enforce an obedience to
them: from the limited power of our monarchy, such obedience is not
to be exacted. Each English colony has a legislature of its own; and
although they all agree in the framing of laws not repugnant to the
laws of England, yet they all widely differ among themselves in the
mode and practice of those laws.

[3] I have referred to this period of the Negroe-trade to Africa,
because Acts of Parliament go no farther back in confirmation of
it; but its commencement was of much earlier date. It began in this
country about the middle of the 15th century, and was carried on by
means of letters patent obtained by individual traders for their
private emolument, until the growth of the English plantations in
America, in the next century, made it an object of such importance,
as not only to render the establishment of a company necessary,
but of such profit as to engage even crowned heads to be concerned
therein. The first charter was granted in the year 1661, in favour
of the Duke of York; but being revoked by consent of parties, it was
renewed in the year 1663, with more ample privileges than the former.
The principal adventurers here, were Queen Catharine of Portugal,
Mary Queen of France, the Duke of York, Henrietta Maria Duchess of
Orleans, Prince Rupert, and others of the Court. Thus upon the ground
of an exclusive Right was this trade continued, till, by the vast
increase of the colonies, it became, in the beginning of the present
century, a weight too heavy for the support of prerogative; and so
falling under the protection of Parliament, was made, as it now is, a
free, open, and _national_ concern.

[4] Mr. Hargrave says, in his argument, p. 67. “Another objection
will be, that there are English acts of parliament, which give a
sanction to the slavery of Negroes; and therefore that it is now
lawful, whatever it might be antecedently to those statutes. The
statutes in favour of this objection are the 5th of Geo. II. ch. 7,
which makes Negroes in America liable to all debts, simple contract
as well as speciality, and the statutes regulating the African
trade, particularly the 23d Geo. II. ch. 31, which in the preamble
recites that the trade to Africa is advantageous to Great Britain,
and necessary for supplying its colonies with Negroes. But the utmost
which can be said of these statutes is, that they impliedly authorize
the slavery of Negroes in America; and it would be a strange thing to
say, that permitting slavery there, includes a permission of slavery
here. By an unhappy concurrence of circumstances, the slavery of
Negroes is thought to have become necessary in America; and therefore
in America our Legislature has permitted the slavery of Negroes. But
the slavery of Negroes is unnecessary in England, and therefore the
Legislature has not extended the permission of it to England; and
not having done so, how can this Court be warranted to make such an
extension?” Now this is the very assertion without proof that I have
complained of above, and have there fully answered: but, in truth,
the best answer it can receive, is its own futility. Why did not Mr.
Hargrave, instead of his _ipse dixit_, produce authorities to set
aside this objection? He is on other occasions not sparing of proofs
and citations. But what is his _ipse dixit_? It is this:

The Legislature has permitted the slavery of Negroes in America:

But the slavery of Negroes is unnecessary in England:

_Ergo_, the Legislature has not extended the permission of it to
England.

This is his mode of reasoning, and these are his very words, which,
when examined syllogistically, shew, if I have not forgotten my
logic, that they are as little conformable to rule, as to matter
of fact. But, the fact is, Mr. Hargrave has found this objection a
stumbling block in his way, and therefore, nimbly leaping over it
himself, to left it to trip up the heels of his followers.

[5] With respect to the statute of the 5th of Geo. II. c. 7. there
are not wanting frequent instances of its having been inforced in
this country; particularly in a case of the noted Rice: who, forging
a Letter of Attorney with intent to defraud the Bank of England of
a considerable sum of money, fled to France, was delivered up by
that Court, and afterwards hanged at Tyburn. It seems, upon his
absconding, a commission of Bankruptcy was awarded against him; and
the Commissioners, as I am credibly informed, under this very Act
of Parliament here mentioned, sold a Negroe of his in the city of
London, as his property, and among his other goods and chattels, for
the satisfaction of the creditors. But this act does not require
cases for its confirmation, neither is it the place where executed
that I contend for; it is _the vesting of the property_, without
proviso or condition, that surmounts all objection. Suppose I had
purchased a Negroe in the island of Barbadoes, or in any other
part of America, that had been extended there at the suit of the
King for a debt due to him, and had brought this Negroe with me to
England: would Mr. Hargrave, or any other lawyer, say, that a writ
of Habeas Corpus, or any other writ whatsoever _not founded on the
verdict of a jury_, could dispossess me of a property, which I held
under the sense, letter, and spirit of an Act of Parliament? Can any
implication of law operate against the express words and meaning of
a law? And would not such argument in its consequences be a mere
_reductio ad absurdum_?

[6] Vide Blackstone’s Commentaries, vol. i. p. 369.

[7] Mr. Hargrave further says, in his argument, p. 67 and 68, “The
slavery of Negroes being admitted to be lawful _now_ in America,
however questionable its _first_ introduction there might be, it may
be urged that the _lex loci_ ought to prevail, and that the master’s
property in the Negroe as a slave having had a lawful commencement
in America, cannot be justly varied by bringing him into England.”
This is one among other objections raised by Mr. Hargrave in order
to receive his answer. Now as to the doubt expressed here, namely,
“however questionable its first introduction there might be,” the
right of granting letters patent, and of erecting corporations for
the purposes of trade, being the undoubted prerogative of the king
as arbiter of the commerce of his dominions; the lawfulness of this
trade to Africa is no more to be questioned whilst it was carried on
under this direction, than it is to be questioned now it is under
the controul of parliament. It was before constitutionally legal,
it is now parliamentary so: but the answer to the objection itself
is as little satisfactory as the doubt is. Here a most unnatural
distinction is aimed at between the colony laws in America, and
the laws of their mother country: putting the _lex loci_ of these
colonies upon the same footing with the _lex loci_ of Russia or
Prussia, or any other foreign country: whereas the _lex loci_ of the
colonies is founded on the _lex loci_ of England, and is, _in totidem
verbis_, the same, as has been made to appear.

[8] This was a Mr. Alleyne.

[9] This opinion was repeated by Lord Hardwick, sitting as
Chancellour, twenty years after it had been given, with additional
assurances, and under the fullest conviction of its strict conformity
to the law.

[10] It is said, _Lex est summa ratio_. I am sorry that so excellent
a rule of law should admit of contradiction; and I wish that this was
the only instance of an exception: but, let it be considered, whether
our Game laws, our Marriage acts, and, for the most part, the penal
laws of this country, _cum multis aliis quæ, &c._ are not contrary
both to reason and nature.

[11] “It is laid down,” says Judge Blackstone, that “acts of
parliament contrary to reason are void: but if the parliament will
positively enact a thing to be done which is _unreasonable_, I know
of no power that can controul it.”——V. his Comm. Vol. I. p. 91.

[12] Vid. his Essay on Man.

[13] Vid. his Journ. to Paris.

[14] Vid. his Essay on Human Understanding.

[15] Vid. his Moral Philosophy.

[16] In looking into Mr. Hume’s Essays, particularly the one of
_national characters_ (which I had never seen till after the above
argument was finished) I was made happy to observe the ideas of so
ingenious a writer corresponding with my own: but as we differ in
some respects, and much of what I have suggested has been not at all
taken notice of by him, I shall beg leave to insert here what he has
said upon the subject. “There is,” says he, “some reason to think,
that all nations, which live beyond the polar circles, or betwixt the
tropics, _are inferior to the rest of the species_, and are _utterly
incapable_ of all the higher attainments of the human mind.” Upon
which he has the following note: “I am apt to suspect the Negroes,
and in general all the other _species_ of men (for there are four or
five different _kinds_) to be naturally inferior to the whites.” Now
I do not apprehend, that, in order to have different _species_ of
men, it is at all necessary to have four or five different _kinds_.
I infer, that there is but _one genus_ or _kind_ of man (under the
term _mankind_) subordinate to which there are several _sorts_ or
_species_ of men, differing from each other upon the principle that I
have assigned; and, as Hudibras says,

      If one will do,
      What need of two?

Besides, it is seemingly a less systematical arrangement. But he
proceeds to say, “There never was a civilized nation of any other
complexion than white, nor even any individual eminent either in
action or speculation. No ingenious manufactures amongst them, no
arts, no sciences. On the other hand, the most rude and barbarous
of the whites, such as the antient Germans, or the present Tartars,
have still something eminent about them, in their valour, form of
government, or some other particular. Such a uniform and constant
difference could not happen, in so many countries and ages, if nature
had not made an _original distinction_ betwixt these _breeds_ of
men. Not to mention our colonies, there are Negroe slaves dispersed
all over Europe, of which none ever discovered any symptoms of
ingenuity; though low people without education will start up among
us, and distinguish themselves in every profession. In Jamaica indeed
they talk of one Negroe as a man of parts and learning; but, ’tis
likely he is admired for very slender accomplishments, like a parrot
who speaks a few words plainly.” Thus Mr. Hume marks the difference
betwixt the several species of men, by their natural capacity or
incapacity of exerting in degree the rational powers, or faculties
of the understanding; which is the distinction that Mr. Locke makes
between man and brutes. I distinguish man from man by _the moral
sense_ or moral powers; and although a Negroe is found, in Jamaica
or elsewhere, ever so sensible and acute; yet if he is incapable of
moral sensations, or perceives them only as beasts do simple ideas,
without the power of combination, in order to use (which I verily
believe to be the case) it is a mark that distinguishes him from the
man who feels and is capable of these moral sensations, who knows
their application and the purposes of them, as sufficiently, as the
Negroe himself is distinguished from the highest species of brutes.

[17] There are two cases referred to in Mr. Hargrave’s argument,
(p. 52. and p. 54.) which are not only fully explanatory of the
above principles, but support the opinion of the Lord Chancellours,
Hardwick and Talbot; and are in direct proof of the whole of my
argument. The cases I allude to, are those of Butts and Penny, and
Gelly against Cleve. The first was an action of _Trover_ for 10
Negroes; and there was a special verdict, &c. The Court held, that
_Negroes being usually bought and sold amongst Merchants, and being
infidels_, there might be a property in them sufficient to maintain
the action. In the second case, the Court is said to have held, that
_Trover_ will lie for a Negroe boy, because _Negroes are Heathens_;
and therefore a man may have property in them; and the Court without
averment will take notice, that they are _Heathens_. Now upon two
judicial determinations are the very reasons of my argument held and
alledged. _Negroes are infidels_: _Negroes are Heathens_: of course
unpossessed of those religious and moral truths, which the Gospel
impresses upon all minds capable of receiving them; and therefore the
law, regarding the inferior state of their nature, has considered
them merely as _property bought and sold among merchants_.

[18] Vid. his Spirit of Laws, vol. i. p. 341.

[19] See also the Assiento, or Contract made with the South Sea
Company, for supplying the Spaniards with Negroes by treaty of
commerce between Great Britain and Spain, in the year 1713-14;
wherein they are considered as dutyable commodities, and named merely
as matters of merchandize; and if thus conceived of at this time,
and on so solemn an occasion as a Treaty of Peace, by what new law
or magic is it that they are now become the subjects of the Crown of
England, and intitled to the benefit of the Habeas Corpus?



  TRANSCRIBER’S NOTE

  Obvious typographical errors and punctuation errors have been
  corrected after careful comparison with other occurrences within
  the text and consultation of external sources.

  Some hyphens in words have been silently removed, some added,
  when a predominant preference was found in the original book.

  Except for those changes noted below, all misspellings in the text,
  and inconsistent or archaic usage, have been retained.

  Pg ix: ‘himself a Vellein’ replaced by ‘himself a Villein’.
  Pg 47: ‘the objects of of’ replaced by ‘the objects of’.
  Pg 70: ‘Δὸς ϖοῦ ϛῶ’ could be replaced by ‘Δὸς ποῦ στῶ’ to avoid
         the unusual pi and stigma characters.




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