FOOTNOTES:

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 returnfairlyadmits slavery to be thesolefoundation of Mr. Steuart’s Claim.” Thus, with aPetitio 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 thebona fidepurchaser 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 ofHabeas Corpusmight 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 Somerseta Negroe, yet it is meant and intended as a course of reasoning upon the general question of the state and conditionof 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 saida 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 theCode 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, andnationalconcern.[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 hisipse dixit, produce authorities to set aside this objection? He is on other occasions not sparing of proofs and citations. But what is hisipse 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 isthe 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 whatsoevernot 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 merereductio 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 lawfulnowin America, however questionable itsfirstintroduction there might be, it may be urged that thelex lociought 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 thelex lociof these colonies upon the same footing with thelex lociof Russia or Prussia, or any other foreign country: whereas thelex lociof the colonies is founded on thelex lociof 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 isunreasonable, 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 ofnational 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 areutterly incapableof 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 otherspeciesof men (for there are four or five differentkinds) to be naturally inferior to the whites.” Now I do not apprehend, that, in order to have differentspeciesof men, it is at all necessary to have four or five differentkinds. I infer, that there is butone genusorkindof man (under the termmankind) subordinate to which there are severalsortsorspeciesof 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 anoriginal distinctionbetwixt thesebreedsof 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 bythe moral senseor 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 ofTroverfor 10 Negroes; and there was a special verdict, &c. The Court held, thatNegroes 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, thatTroverwill lie for a Negroe boy, becauseNegroes are Heathens; and therefore a man may have property in them; and the Court without averment will take notice, that they areHeathens. 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 asproperty 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?

[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 returnfairlyadmits slavery to be thesolefoundation of Mr. Steuart’s Claim.” Thus, with aPetitio 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 thebona fidepurchaser 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 ofHabeas Corpusmight 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 Somerseta Negroe, yet it is meant and intended as a course of reasoning upon the general question of the state and conditionof Negroes.

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 Somerseta Negroe, yet it is meant and intended as a course of reasoning upon the general question of the state and conditionof 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 saida 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 theCode 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, andnationalconcern.

[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 hisipse dixit, produce authorities to set aside this objection? He is on other occasions not sparing of proofs and citations. But what is hisipse 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.

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 isthe 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 whatsoevernot 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 merereductio 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 lawfulnowin America, however questionable itsfirstintroduction there might be, it may be urged that thelex lociought 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 thelex lociof these colonies upon the same footing with thelex lociof Russia or Prussia, or any other foreign country: whereas thelex lociof the colonies is founded on thelex lociof 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 isunreasonable, 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 ofnational 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 areutterly incapableof 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 otherspeciesof men (for there are four or five differentkinds) to be naturally inferior to the whites.” Now I do not apprehend, that, in order to have differentspeciesof men, it is at all necessary to have four or five differentkinds. I infer, that there is butone genusorkindof man (under the termmankind) subordinate to which there are severalsortsorspeciesof 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 anoriginal distinctionbetwixt thesebreedsof 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 bythe moral senseor 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.

If one will do,What need of two?

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 anoriginal distinctionbetwixt thesebreedsof 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 bythe moral senseor 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 ofTroverfor 10 Negroes; and there was a special verdict, &c. The Court held, thatNegroes 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, thatTroverwill lie for a Negroe boy, becauseNegroes are Heathens; and therefore a man may have property in them; and the Court without averment will take notice, that they areHeathens. 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 asproperty 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?

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