Chapter I: Part 1

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CONSIDERATIONS

ON THE

NEGROE CAUSE

COMMONLY SO CALLED,

ADDRESSED TO

THE RIGHT HONOURABLE

LORD MANSFIELD,

LORD CHIEF JUSTICE of the COURT of
KING’S BENCH, &c.

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

THE THIRD EDITION.

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

M.DCC.LXXXVIII.

[Price 2_s._]

_ADVERTISEMENT_

TO THE

READER.

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

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

PREFACE.

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

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

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

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

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

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

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

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

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

CONSIDERATIONS
ON THE
NEGROE CAUSE, &c.

MY LORD,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“P. YORK.
“C. TALBOT.”

Jan. 24, 1729.

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