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?