must have intervened. Now the planting of the colonies opening with
the 16th century, and consequently commencing nearly with the reign
of James I. it appears, that during the reigns of this race of kings,
their cultivation and improvement were so rapidly had, that, from
a state of infancy, before the end of the reign of Charles II. they
had grown up and increased to the vigour of manhood. It is in this
period of history, therefore, my Lord, that I am to search for, and
to trace, the cause of this allotted condition of Negroes: but, as
it cannot be expected that I should here enter into the particulars
of those times, so neither is it necessary to my purpose. A single
incontrovertible observation will serve to rest the whole of what
I have to offer on this subject; and which is this: that from the
_alpha_ of the reign of James I. to the _omega_ of the reign of
James II. _to enslave_, was the fixed principle and uniform plan
of government. This then at once accounts for the toleration of a
measure, so inconsistent with the principles of the constitution of
this country: but the reason upon which the measure was grounded is
not so immediately obvious. From things that are more known, things
that are less known must be deduced. Now it is a maxim in politics,
that to obtain an end, direct means are not always to be pursued, or
rather that _indirect_ means are allowed to be practiced; and this
will lead me to mention two questions that have been already stated.
Why were not the laws of villenage enforced? or why were not other
laws of slavery enacted for the government of these people? The
answer is plain; these were edged tools, which the complexion of the
times would not suffer the use of. Enough was the plan of government
exposed, though hid under the cloak of religion. Such a step would
have left it naked, and without a covering. Policy therefore
prevented that which the jealousy of the people would have forbidden.
In vain would have been the argument, that these laws were intended
for operation in the new world of America. _Ever to begin at the
extremes_ is a well-known rule in the art of attaining to despotism.
The more distant the design, the deeper laid is the scheme, and the
more sure in its consequences. As in the body natural, even so is it
in the body politic. The disease that lays hold of the toe, often
finds its way to the heart. Gradual encroachments by imperceptible
movements are the most dangerous symptoms. They call off attention
to remedies, and lull suspicion to sleep. But may all lovers of
liberty ever have their eyes open and awake to this despotic process!
He that would tyrannise in America or abroad, awaits only the
opportunity of becoming a tyrant at Home; but thank God, my Lord, the
present times with us, of all others, give least occasion for any
apprehensions of this sort. But to return. Instead then of that Demon
Slavery being called in to preside over Negroes, Trade, the guardian
angel of England, was made the ruler of them. This I attribute to
policy; which, however seemingly more constitutional, was not less
favourable to the ruling principle of the Crown. I have already
admitted, that to erect corporations, and to grant Letters Patent for
the purposes of trade, are in the Crown its undoubted prerogative;
but, considering Negroes as human creatures, and upon a level with
ourselves, I submit it to your Lordship, that the Crown had no right
to make slaves of them; whatever the uncontroulable power of an act
of parliament might do: and yet Charles the Second, by his Charter
only to the Duke of York, _enslaved_ whole nations of these people.
The apology, I apprehend, for this, my Lord, will be; that neither
this Charter, nor any other Grant, have ever conceived Negroes in
this light and view; as, relation being thereunto had, will more
fully appear[19]. If so, my Lord, two things come out in proof:
_presumptively_, that the Crown had no right of itself to make slaves
of Negroes, or it would, in those days at least, have exerted it;
_positively_ by these authorities themselves, that Negroes are not
considered as slaves under the idea of slavery, but merely as matter
of commercial property, and articles of the trade of this country.
If now, my Lord, I have supported the doctrine which I took upon
me to evince, and have satisfactorily shewn, that property is the
gift of action in this case, thereby proving that Mr. Steuart may
of course legally compel Somerset to return to the Plantations, I
shall leave its decision to your Lordship, on a quotation of your own
words: “It is not my business to alter the law; or to make it, but to
find the law.”
It remains then only to observe, that if Somerset is the legal
property of Steuart, he, Somerset, cannot legally be entitled to
the writ which he has sued out in aid of relief. The writ of Habeas
Corpus is a writ of right given to the subjects of the Crown of
England, for the security of their liberties. If Somerset can fall
under this predicament and description, he is open to the benefits
that may arise therefrom; but if the law has already fixed the _fiat_
of property on him, I apprehend it is a _legal_ exception to the
writ, and his right is foreclosed thereby.
Having said thus much, my Lord, on one side of the question, I do not
mean to conceal my sentiments on the other. My aim is, to establish
the truth: my wish, that what is right should be done. Whatever then
is here the result of my reflections, to obtain the end I propose, is
necessary to your Lordship’s information.
When this matter, therefore, was first in agitation, it stated itself
thus generally to my comprehension: that as it was a case which
existing for two centuries and upwards, and never receiving finally
any judicial determination, it had better remain in the situation it
was. It compared itself to me with some cases of royal prerogative,
and of parliamentary privilege, which were excellent in theory, but
subject to inconvenience in practice; and whose best and safest law
was that of suspense: but, my Lord, when I found that the case was
to be argued, and the judgment of the Court of King’s Bench taken
thereupon, my hopes were, that, if it was possible to counteract
the law of the land, the decision would be in favour of the Negroe:
for although the knowledge of their being free might spirit them
up to insurrections in America, yet it would put a stop to their
importation here by their owners, and they would be more usefully
kept and employed in the colonies to which they belonged. On the
contrary determination too, my Lord, it being solemnly adjudged that
Negroes in this country were not free, I foresaw that this fatal
consequence might follow: that the trade from Africa to America
would be diverted from Africa to England; and Negroes, in process
of time, would be sold in Smithfield market, as horses and cattle
now are. Each farmer would have his Negroe to drive his plough, each
manufacturer his slave under his own controul; and America that was
conquered in Germany, as was the saying of a very great man, would
become America ruined in England.
A great deal, my Lord, was urged by the learned counsel, of the
edicts of France, relative to Negroes: but it does not occur to my
memory that this, among the rest, was taken notice of. It may be,
that I am misinformed with respect to the fact; but I will tell your
Lordship how I came by it. I have been myself, my Lord, a traveller
through every province of France, and during my tour I never had
opportunity of seeing more than two Noirs (or Blacks) as they are
there called; one of which was at Marseilles, the other at Bourdeaux,
the two chief ports of trade with the American colonies of that
kingdom. Knowing therefore the intercourse with, and observing the
fewness of these people, I was led to enquire into the reason of
it; when I was informed, that there was an absolute edict of the
present King of France, prohibiting the importation of them into
that country, upon this political idea, that otherwise the race
of Frenchmen would, in time to come, be changed. Greater much, my
Lord, is the reason in this country to apprehend this event. It was
in representation, if not in proof, to your Lordship, that there
were already fifteen thousand Negroes in England; and scarce is
there a street in London that does not give many examples of that,
which, with much less reason, had alarmed the fears of France.
Upon the whole, then, my Lord, let America and England look up to
your Lordship, as the man qualified to draw the line of propriety
between them. To this end, let a Bill originate in the House of
Lords, under your Lordship’s formation: let slavery, so far as
property is such in Negroes, be held in America: let the importation
of them be prohibited to this country, with such other regulations
and provisions as your Lordship shall see fit to lake place. Some
centuries back, slavery was the law, and slaves the objects of
that law, as I observed before, in this kingdom: but civilization
has extinguished the existence of both. When America shall be what
England is, some yet undiscovered land will become what America is.
In short, my Lord, by this act you will preserve the race of Britons
from stain and contamination; and you will rightly confine a property
to those colonies, upon whose prosperity and welfare the independent
being of this country rests.
SAMUEL ESTWICK.
Portman-Square, Dec. 10, 1772.
FINIS.
FOOTNOTES:
[1] The late publication of Mr. Hargrave’s argument, as one of
Somerset’s counsel, gives me the satisfaction of seeing in the whole,
what I had before the opportunity of hearing only in part. I confess
I know not which most to admire, the labour of this Gentleman’s
researches, or the ingenuity with which his collected materials
are systematized and disposed. It is a history, perhaps the most
compleat that is, of the rise, progress, decline, and general state
of Slavery; and, whilst it does as much honour to his humanity
as to his understanding, will serve as a light to enlighten the
footsteps of posterity, should a revival of the laws of Villenage
be ever attempted in this country: but, having said this, I must
recur to my former opinion, that, learned as his arguments are in
general, in this particular case they are founded on false and
mistaken principles, and are totally inapplicable to the merits of
the present question. His first principle or point is, (vid. p. 12.)
that “whatever Mr. Steuart’s Right may be, it springs out of the
condition of slavery; and accordingly, says he, the return _fairly_
admits slavery to be the _sole_ foundation of Mr. Steuart’s Claim.”
Thus, with a _Petitio Principii_, which neither is, can, or will
be admitted, and upon a manifest error in the return made to the
writ of Habeas Corpus, does the argument of Mr. Hargrave commence,
rest, and depend. But if, instead of admitting, there being no law
to countenance such admission, the return had relinquished the
right, and denied the claim, of slavery: if it had set forth, that
Mr. Steuart was the _bona fide_ purchaser of Somerset in the legal
course of trade: that he had bought him out of a ship’s cargoe
from Africa, together with some elephants teeth, wax, leather, and
other commodities of that country, for which he paid his money, or
otherwise gave in exchange the manufactures of this country: that he
had brought him here as an article of commerce with his other goods,
under the sanction of the laws of trade: that he meant to export him
hence under the same protection, with his other property, in order
to be sold for his better advantage in one of the English Colonies
in America: that a writ of _Habeas Corpus_ might as well issue on
account of his elephants teeth, his wax, his leather, and his other
commodities of that country, as on account of his Negroe, they being
expressly under the same predicament of law, and so forth: I say,
under such circumstances, and upon such a return, what would have
become of this stately pile of elaborate argument?
High-built, like Babel’s tower, to magnify the fall! Must not the
lawyers have saught new ground to build upon? Must not the Court have
lost that error of insufficiency, which now supports its only right
of Judgment?
_Note_, Although this argument of Mr. Hargrave is said to have been
delivered in the particular Case of Somerset _a Negroe_, yet it is
meant and intended as a course of reasoning upon the general question
of the state and condition _of Negroes_.
[2] It is said in Mr. Hargrave’s argument, p. 23. “such was the
expiring state of domestic slavery in Europe at the commencement of
the 16th century, when the discovery of America and of the Western
and Eastern coasts of Africa, gave occasion to the introduction of
a new species of slavery.” If the arguer had said _a new species
of traffic_, instead of a new species of slavery, he had expressed
the real matter of fact; seeing that the law by which this concern
is regulated, considers it in no other light or view whatever. For
this reason too, it cannot be enumerated among the several species
of slavery that he has mentioned, and taken notice of; each distinct
species having its distinct laws, appropriated thereto distinctly,
as the laws of slavery. Among the Portuguese and Spaniards, I have
been given to understand, that Negroes are, and have ever been
considered, as with the English, matter of Property, and articles
of commerce in the common course of traffic; and were so estimated
by the French, until the refined age of Lewis XIV. gave rise to a
new institution of law, under the title of the _Code noir_, for the
particular government of Negroes in their American colonies. It were
to be wished that a fit and proper digest of this sort could take
place with us: but, I fear, the difficulty (which arises not so much
from the subject, as from the means of introduction) will prevent the
execution of any such plan. From the unlimited power of the Crown of
France, when laws are made, it is easy to enforce an obedience to
them: from the limited power of our monarchy, such obedience is not
to be exacted. Each English colony has a legislature of its own; and
although they all agree in the framing of laws not repugnant to the
laws of England, yet they all widely differ among themselves in the
mode and practice of those laws.
[3] I have referred to this period of the Negroe-trade to Africa,
because Acts of Parliament go no farther back in confirmation of
it; but its commencement was of much earlier date. It began in this
country about the middle of the 15th century, and was carried on by
means of letters patent obtained by individual traders for their
private emolument, until the growth of the English plantations in
America, in the next century, made it an object of such importance,
as not only to render the establishment of a company necessary,
but of such profit as to engage even crowned heads to be concerned
therein. The first charter was granted in the year 1661, in favour
of the Duke of York; but being revoked by consent of parties, it was
renewed in the year 1663, with more ample privileges than the former.
The principal adventurers here, were Queen Catharine of Portugal,
Mary Queen of France, the Duke of York, Henrietta Maria Duchess of
Orleans, Prince Rupert, and others of the Court. Thus upon the ground
of an exclusive Right was this trade continued, till, by the vast
increase of the colonies, it became, in the beginning of the present
century, a weight too heavy for the support of prerogative; and so
falling under the protection of Parliament, was made, as it now is, a
free, open, and _national_ concern.
[4] Mr. Hargrave says, in his argument, p. 67. “Another objection
will be, that there are English acts of parliament, which give a
sanction to the slavery of Negroes; and therefore that it is now
lawful, whatever it might be antecedently to those statutes. The
statutes in favour of this objection are the 5th of Geo. II. ch. 7,
which makes Negroes in America liable to all debts, simple contract
as well as speciality, and the statutes regulating the African
trade, particularly the 23d Geo. II. ch. 31, which in the preamble
recites that the trade to Africa is advantageous to Great Britain,
and necessary for supplying its colonies with Negroes. But the utmost
which can be said of these statutes is, that they impliedly authorize
the slavery of Negroes in America; and it would be a strange thing to
say, that permitting slavery there, includes a permission of slavery
here. By an unhappy concurrence of circumstances, the slavery of
Negroes is thought to have become necessary in America; and therefore
in America our Legislature has permitted the slavery of Negroes. But
the slavery of Negroes is unnecessary in England, and therefore the
Legislature has not extended the permission of it to England; and
not having done so, how can this Court be warranted to make such an
extension?” Now this is the very assertion without proof that I have
complained of above, and have there fully answered: but, in truth,
the best answer it can receive, is its own futility. Why did not Mr.
Hargrave, instead of his _ipse dixit_, produce authorities to set
aside this objection? He is on other occasions not sparing of proofs
and citations. But what is his _ipse dixit_? It is this:
The Legislature has permitted the slavery of Negroes in America:
But the slavery of Negroes is unnecessary in England:
_Ergo_, the Legislature has not extended the permission of it to
England.
This is his mode of reasoning, and these are his very words, which,
when examined syllogistically, shew, if I have not forgotten my
logic, that they are as little conformable to rule, as to matter
of fact. But, the fact is, Mr. Hargrave has found this objection a
stumbling block in his way, and therefore, nimbly leaping over it
himself, to left it to trip up the heels of his followers.
[5] With respect to the statute of the 5th of Geo. II. c. 7. there
are not wanting frequent instances of its having been inforced in
this country; particularly in a case of the noted Rice: who, forging
a Letter of Attorney with intent to defraud the Bank of England of
a considerable sum of money, fled to France, was delivered up by
that Court, and afterwards hanged at Tyburn. It seems, upon his
absconding, a commission of Bankruptcy was awarded against him; and
the Commissioners, as I am credibly informed, under this very Act
of Parliament here mentioned, sold a Negroe of his in the city of
London, as his property, and among his other goods and chattels, for
the satisfaction of the creditors. But this act does not require
cases for its confirmation, neither is it the place where executed
that I contend for; it is _the vesting of the property_, without
proviso or condition, that surmounts all objection. Suppose I had
purchased a Negroe in the island of Barbadoes, or in any other
part of America, that had been extended there at the suit of the
King for a debt due to him, and had brought this Negroe with me to
England: would Mr. Hargrave, or any other lawyer, say, that a writ
of Habeas Corpus, or any other writ whatsoever _not founded on the
verdict of a jury_, could dispossess me of a property, which I held
under the sense, letter, and spirit of an Act of Parliament? Can any
implication of law operate against the express words and meaning of
a law? And would not such argument in its consequences be a mere
_reductio ad absurdum_?
[6] Vide Blackstone’s Commentaries, vol. i. p. 369.
[7] Mr. Hargrave further says, in his argument, p. 67 and 68, “The
slavery of Negroes being admitted to be lawful _now_ in America,
however questionable its _first_ introduction there might be, it may
be urged that the _lex loci_ ought to prevail, and that the master’s
property in the Negroe as a slave having had a lawful commencement
in America, cannot be justly varied by bringing him into England.”
This is one among other objections raised by Mr. Hargrave in order
to receive his answer. Now as to the doubt expressed here, namely,
“however questionable its first introduction there might be,” the
right of granting letters patent, and of erecting corporations for
the purposes of trade, being the undoubted prerogative of the king
as arbiter of the commerce of his dominions; the lawfulness of this
trade to Africa is no more to be questioned whilst it was carried on
under this direction, than it is to be questioned now it is under
the controul of parliament. It was before constitutionally legal,
it is now parliamentary so: but the answer to the objection itself
is as little satisfactory as the doubt is. Here a most unnatural
distinction is aimed at between the colony laws in America, and
the laws of their mother country: putting the _lex loci_ of these
colonies upon the same footing with the _lex loci_ of Russia or
Prussia, or any other foreign country: whereas the _lex loci_ of the
colonies is founded on the _lex loci_ of England, and is, _in totidem
verbis_, the same, as has been made to appear.
[8] This was a Mr. Alleyne.
[9] This opinion was repeated by Lord Hardwick, sitting as
Chancellour, twenty years after it had been given, with additional
assurances, and under the fullest conviction of its strict conformity
to the law.
[10] It is said, _Lex est summa ratio_. I am sorry that so excellent
a rule of law should admit of contradiction; and I wish that this was
the only instance of an exception: but, let it be considered, whether
our Game laws, our Marriage acts, and, for the most part, the penal
laws of this country, _cum multis aliis quæ, &c._ are not contrary
both to reason and nature.
[11] “It is laid down,” says Judge Blackstone, that “acts of
parliament contrary to reason are void: but if the parliament will
positively enact a thing to be done which is _unreasonable_, I know
of no power that can controul it.”——V. his Comm. Vol. I. p. 91.
[12] Vid. his Essay on Man.
[13] Vid. his Journ. to Paris.
[14] Vid. his Essay on Human Understanding.
[15] Vid. his Moral Philosophy.
[16] In looking into Mr. Hume’s Essays, particularly the one of
_national characters_ (which I had never seen till after the above
argument was finished) I was made happy to observe the ideas of so
ingenious a writer corresponding with my own: but as we differ in
some respects, and much of what I have suggested has been not at all
taken notice of by him, I shall beg leave to insert here what he has
said upon the subject. “There is,” says he, “some reason to think,
that all nations, which live beyond the polar circles, or betwixt the
tropics, _are inferior to the rest of the species_, and are _utterly
incapable_ of all the higher attainments of the human mind.” Upon
which he has the following note: “I am apt to suspect the Negroes,
and in general all the other _species_ of men (for there are four or
five different _kinds_) to be naturally inferior to the whites.” Now
I do not apprehend, that, in order to have different _species_ of
men, it is at all necessary to have four or five different _kinds_.
I infer, that there is but _one genus_ or _kind_ of man (under the
term _mankind_) subordinate to which there are several _sorts_ or
_species_ of men, differing from each other upon the principle that I
have assigned; and, as Hudibras says,
If one will do,
What need of two?
Besides, it is seemingly a less systematical arrangement. But he
proceeds to say, “There never was a civilized nation of any other
complexion than white, nor even any individual eminent either in
action or speculation. No ingenious manufactures amongst them, no
arts, no sciences. On the other hand, the most rude and barbarous
of the whites, such as the antient Germans, or the present Tartars,
have still something eminent about them, in their valour, form of
government, or some other particular. Such a uniform and constant
difference could not happen, in so many countries and ages, if nature
had not made an _original distinction_ betwixt these _breeds_ of
men. Not to mention our colonies, there are Negroe slaves dispersed
all over Europe, of which none ever discovered any symptoms of
ingenuity; though low people without education will start up among
us, and distinguish themselves in every profession. In Jamaica indeed
they talk of one Negroe as a man of parts and learning; but, ’tis
likely he is admired for very slender accomplishments, like a parrot
who speaks a few words plainly.” Thus Mr. Hume marks the difference
betwixt the several species of men, by their natural capacity or
incapacity of exerting in degree the rational powers, or faculties
of the understanding; which is the distinction that Mr. Locke makes
between man and brutes. I distinguish man from man by _the moral
sense_ or moral powers; and although a Negroe is found, in Jamaica
or elsewhere, ever so sensible and acute; yet if he is incapable of
moral sensations, or perceives them only as beasts do simple ideas,
without the power of combination, in order to use (which I verily
believe to be the case) it is a mark that distinguishes him from the
man who feels and is capable of these moral sensations, who knows
their application and the purposes of them, as sufficiently, as the
Negroe himself is distinguished from the highest species of brutes.
[17] There are two cases referred to in Mr. Hargrave’s argument,
(p. 52. and p. 54.) which are not only fully explanatory of the
above principles, but support the opinion of the Lord Chancellours,
Hardwick and Talbot; and are in direct proof of the whole of my
argument. The cases I allude to, are those of Butts and Penny, and
Gelly against Cleve. The first was an action of _Trover_ for 10
Negroes; and there was a special verdict, &c. The Court held, that
_Negroes being usually bought and sold amongst Merchants, and being
infidels_, there might be a property in them sufficient to maintain
the action. In the second case, the Court is said to have held, that
_Trover_ will lie for a Negroe boy, because _Negroes are Heathens_;
and therefore a man may have property in them; and the Court without
averment will take notice, that they are _Heathens_. Now upon two
judicial determinations are the very reasons of my argument held and
alledged. _Negroes are infidels_: _Negroes are Heathens_: of course
unpossessed of those religious and moral truths, which the Gospel
impresses upon all minds capable of receiving them; and therefore the
law, regarding the inferior state of their nature, has considered
them merely as _property bought and sold among merchants_.
[18] Vid. his Spirit of Laws, vol. i. p. 341.
[19] See also the Assiento, or Contract made with the South Sea
Company, for supplying the Spaniards with Negroes by treaty of
commerce between Great Britain and Spain, in the year 1713-14;
wherein they are considered as dutyable commodities, and named merely
as matters of merchandize; and if thus conceived of at this time,
and on so solemn an occasion as a Treaty of Peace, by what new law
or magic is it that they are now become the subjects of the Crown of
England, and intitled to the benefit of the Habeas Corpus?
TRANSCRIBER’S NOTE
Obvious typographical errors and punctuation errors have been
corrected after careful comparison with other occurrences within
the text and consultation of external sources.
Some hyphens in words have been silently removed, some added,
when a predominant preference was found in the original book.
Except for those changes noted below, all misspellings in the text,
and inconsistent or archaic usage, have been retained.