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?

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. · 第 2 / 4 段