Chapter II: Part 2

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?

Here is it then that policy, which is the object of my discovery, 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.

Pg ix: ‘himself a Vellein’ replaced by ‘himself a Villein’.
Pg 47: ‘the objects of of’ replaced by ‘the objects of’.
Pg 70: ‘Δὸς ϖοῦ ϛῶ’ could be replaced by ‘Δὸς ποῦ στῶ’ to avoid
the unusual pi and stigma characters.