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 NegroeversusKnowles 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, ordepreciate 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: theexamples, 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 ownnativeground 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 expounderof 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 differentfrom 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 operatein 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 mattermust 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 sufficientfoundation 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 qualityof 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; yetthe rightwhich Mr. Steuart claims in the Negroe, Somerset, isa rightgiven 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 hithertobeen 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 ofcommercial 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 thattrade 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 ofproperty. 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 tovestthe lands, forts, castles, slaves, military stores, andall 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 allother their estate, property, and effectswhatsoever; 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 bythe 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 suchcanoe-men and slavesas 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; andall other the property, estate, and effectswhatsoever, 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 herebyfully and absolutelyvested 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, thelegal natureof Negroes, if I may so speak, is fully established and clearly ascertained, by act of parliament. Your Lordship perceives, that they arein hoc verbodeclared 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 thesame.” 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 satisfactionthereof, 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. Theyare, 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: fromwhence 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. Whereis 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, bystrange, 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 atlarge; 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, bysome 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 thebona fidepurchaser 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 arenot now before the Court asthe objects ofLitigation[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 mostclassical 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 inthose 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 veryleges 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 isipso factonull 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 guiltlessrace 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 wasfelo 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 nullifiedab initiofrom itsbeing 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 hisNegroe 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 ofthe 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 chattelsquoadthe 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 Negroesare 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 thenavy; 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 lasheseach, 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 madmenin 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 mereargumenta 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, whichpromise 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 becomefree; and that his master’spropertyorrightin 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 maylegallycompel him to return to the plantations[9].
“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 becomefree; and that his master’spropertyorrightin 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 maylegallycompel him to return to the plantations[9].
“P. York.“C. Talbot.”
Jan. 24, 1729.
Upon this opinion, my Lord, I shall make no other remark, than that right and property seem to be the obvious ground and foundation of it, or the hinges whereupon the whole is made to hang and to turn.
But, my Lord, I will now admit, that, what is held to be law, is at variance with this opinion. It is laid down “that a Slave or Negroe, the instant he lands inEngland, 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 berightin point ofreason; but, I submit it, that they arewrongin point oflaw[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 uponto be the servant of his master; but by what authority is the relation ofservantandmastercreated? Not by the authority of the law, however it may be by the evidence of reason. By the law, the relation is, asNegroeandOwner: 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 tothings 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 theproperty of their masters(he should have rather saidowners)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 arepurchased when captives of the nations with whom they are at war, and therefore thelaw of nationsgives their masters a property in their persons; would your Lordship have thought this alawfulplea 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, acquirethe 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 whetherhuman natureis 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, theCur, theQuare, theQuamobrem, of these laws. To which, in the language and postulate of the Greek Philosopher, I reply; that, as matter of fact is theΔὸς ϖοῦ ϛῶof 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 ashuman 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 onephysical, the otherpolitical. 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 thosearcanaof nature that are not to be revealed to human understanding. But, although these phænomena in nature are not to be accountedfor, 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 opinionuniversallyreceived, that human nature isuniversallythe 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 isprima facieevidence 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 naturearranged 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 manykinds, each kind having its properspeciessubordinate 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 aclass, comprehending anorderof beings, of which man is thegenus, divided into distinct and separatespeciesof 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 ofa moral sensein, 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, themoral sensebeing 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 improvementshad 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 probablyaffords 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 inthe same rude situationnear 2000 years ago in which they are at present; that is, they hadnothing of humanityabout thembut the form. This may either be accounted for by supposing, that nature has placed some insuperable barrier between the nativesof 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 verycertainthat 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 religionwhich 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 themoral 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, notinkind, but inspecies; and verifying that unerring truth of Mr. Pope, that