TRANSCRIBER’S NOTE
Italic text is denoted by _underscores_.
The original text used the character ſ (long-form s); these have been
replaced by the normal s in this etext.
Footnote anchors are denoted by [number], and the footnotes have been
placed at the end of the book.
Some minor changes to the text are noted at the end of the book.
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.