“Order is Heaven’s first law; and this confest,Some are, and must be, greater than the rest:”
“Order is Heaven’s first law; and this confest,Some are, and must be, greater than the rest:”
“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 thecorporealas well asintellectualdifferences 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 thephysicalmotive, which, as it is apprehended, might have occasioned thecivilexistence, if I may so say, of Negroes in this kingdom; thepoliticalconsideration proposed comes next in the order of enquiry. It must be observed, my Lord, that if the cause already assignedbe 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 hisgamewasman.”
“Bold Nimrod first the savage chace began,A mighty Hunter, and hisgamewasman.”
“Bold Nimrod first the savage chace began,
A mighty Hunter, and hisgamewasman.”
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 allnaturalintents 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 wouldhave had the benefit of hisEsprit 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 amortuum vadum, instead of avivum vadum, (so to speak for comparison sake) to those under whose dominion they came? Might not the laws of villenage have been revivedquoadthem? 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 cultivationand 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 thealphaof the reign of James I. to theomegaof 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 inpolitics, that to obtain an end, direct means are not always to be pursued, or rather thatindirectmeans 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 extremesis 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 diseasethat 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 toyour 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,enslavedwhole 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;positivelyby these authorities themselves, that Negroesare 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 benefitsthat may arise therefrom; but if the law has already fixed thefiatof property on him, I apprehend it is alegalexception 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 whosebest 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 hisslave 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, slaverywas 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.