THE first Edition of the following Considerations on the Negroe Cause was written with haste, and published in a hurry. The hope of seeing some much abler pen than mine engaged in the discussion of so important a question, and yet seemingly so little understood, withheld me from the undertaking; till disappointment made it the resolution of an hour, and want of time the effect of a few days attention only. It was evident that whatever was to have been suggested on the subject, ought to have been known antecedently to the legal decision of the Case: but led on by the expectation of the moreuseful endeavours of others, already was the Term, in which judgment was to be given, treading closely on my heels, without my having taken one single step in advance of the design. Thus circumstanced, such dispatch became necessary as could not fail to produce errors, imputable both to me and the printer. Whilst one part of the pamphlet was printing, the other was preparing for the press: but even this expedition had not its desired effect. The Judgment was beforehand with the Publication: whereby the Considerations themselves were deprived of their object, and I, in some measure, foiled in my purpose. Upon finding however that the very grounds of my argument (to wit, the opinions of the Lord Chancellors Hardwick and Talbot) were the subjects ofdue attentionto the Court, and that the determination rested on this particular Caseonly, from circumstances of insufficiency arising out of the return made to the writ of Habeas Corpus, I was induced to sufferthis performance to make its appearance to the public eye, though, like Hamlet’s Ghost, with all its imperfections on its head.
But being now called upon for a second Edition, I have carefully corrected the errors of the first, so far as they were perceiveable to me. I have considerably enlarged the work itself. I have inserted several notes, in some of which the principles of the late published argument of Mr. Hargrave, and the argument itself, as applied to the merits of this question, areshortlyexamined, though (with what is offered in the text) it is to be presumed,fullyrefuted.
Supposing too, that the judgment of the Court of King’s Bench in this case might be no improper addition, I have, from the most authentic copy I was able to procure, inserted it here: taking the liberty at the same time of making some few occasional remarks upon it.
The followingis saidto be the substance of Lord Mansfield’s speech in the case of Somerset and Knowles: “We pay due attentionto the opinion of Sir Philip Yorke and Mr. Talbot in the year 1729, by which theypledgedthemselves to the British Planters for the legal consequences of bringing Negroe-slaves into this kingdom, or their being baptized;” which opinion was repeated and recognized by Lord Hardwick, sitting as Chancellour, on the 19th of October 1749, to the following effect: He said, “that Trover would lay for a Negroe-slave: that a notion prevailed, that if a slave came into England, or became a Christian, he thereby became emancipated; but there was no foundation in law for such a notion: that when he and Lord Talbot were Attorney and Solicitor General, this notion of a slave becoming free by being baptized prevailed so strongly, that the Planters industriously prevented their becoming Christians: upon which their opinion was taken;and upon their best consideration they were both clearly of opinion, that a slave did not in the least alter his situation or state towards his Master orOwner, either by being christened, orcoming to England: that though the statute of Charles II. had abolished Tenure so far, that no man could be aVillein regardant; yet if he would acknowledgehimself aVilleinengrossed in any Court of Record, he knew of no way by which he could be entitled to his freedom, without the consent of his Master. We feel the force of the inconveniences and consequences that will follow the decision of this question: yet all of us are so clearly of one opinion upon theonlyquestion before us, that we think we ought to give judgment without adjourning the matter to be argued before all the judges, as usual in the Habeas Corpus, and as we at first intimated an intention of doing in this case. The only question then is,Is the Cause returned sufficient for the remanding him? If not, he must be discharged. The Cause returned is, theslaveabsented himself and departed from his master’s service, and refused to return and serve him during his stay in England; whereupon, by his master’s orders, he was put on board theship by force, and there detained in secure custody, to be carried out of the kingdom and sold. So high an act of dominion must derive its authority, if any such it has, from the law of the kingdomwhereexecuted. A foreigner cannot be imprisonedhereon the authority of any law existing in his own country. The power of a master over his servant is different in all countries, more or less limited or extensive; the exercise of it therefore must always be regulated by the laws of the place where exercised. The state of slavery is of such a nature, that it is incapable of being now introduced by Courts of Justice upon mere reasoning, or inferences from any principles natural or political; it must take its rise from positive law; the origin of it can in no country or age be traced back to any other source. Immemorial usage preserves the memory of positive law long after all traces of the occasion, reason, authority, and time of its introduction, are lost; and in a Case so odious as the condition of slavesmust be, taken strictly, the power claimed by this return was never in use here: no master ever was allowed here to take a slave by force to be sold abroad because he had deserted from his service, or for any other reason whatever; we cannot say,the Cause set forth by this returnis allowed or approved of by the laws of this kingdom, and therefore the man must be discharged.”
I must confess, I have been greatly puzzled in endeavouring to reconcile this judgment with this state of it, and with my comprehension.
“We pay due attention to the opinion of Sir Philip York and Mr. Talbot,” are the words of the Noble Lord who delivered the judgment of the Court; and yet the judgment is, in operation and effect, directly subversive of the opinion. Now I must take for granted that this opinion would not have been cited, especially in so affirmative a manner, if it had had nothing atall to do with the Case then before the Court: because such citation would have been unmeaning and unnecessary. This being admitted, it follows, that the law laid down in this opinion was either the law of the Case, or it was not. If it were the law of the Case, the judgment would have been governed by that law, and consequently contrary to what it is. If it were not the law of the Case, in order to shew what the law is, and that the law and the judgment might correspond with each other, as cause and effect, it would seem,ex necessitate rei, that the doctrine advanced in this opinion should have been set aside by the superior force of legal argumentation and authority. But the reasoning upon the judgment stands thus: In the Premises this opinion is cited as authority; then, without any middle term denying that authority, the conclusion is, by the judgment, that it is no authority at all. Under these problematical circumstances the onlysolution possible to me was, that there might be two decisions intentionally contained under one judgment: that is to say, that the opinion of Sir Philip York and Mr. Talbot, was the law upon the general merits of the question; and that this judgment of the Court was the law upon this particular state of it. Thus for instance: if the return made to the writ of Habeas Corpus in this Case had denied the lawfulness of the writ itself, and Mr. Steuart had claimed Somerset upon the ground only of being his commercialproperty; then the opinion of Sir Philip York and Mr. Talbot had operated as law and authority: but as the return had admitted the right of slavery, and Mr. Steuart had claimed Somerset as his slave, there being no laws of slavery nowin usein this country, either for Negroes, or for any other species of the human being, the judgment of the court was,from the insufficiency of the Cause returned, the law of this Case.
But no sooner had this reconciliation taken place in my mind, than another perplexity followed. In the recital of the opinion recognized by Lord Hardwick, sitting as Chancellour, it is made to conclude thus: “that though the Statute of Charles II. had abolished Tenure so far that no man could be aVillein regardant, yet if he would acknowledge himself a Villein ingrossed in any Court of Record, he knew of no way by which he could be entitled to his freedom without the consent of his Master.”
Now, by connecting this latter with the former part of the opinion, in the manner it is done, it appears, as if Lord Hardwick meant to declare, that the state or situation of Negroes towards their masters or owners arose out of, and was founded upon, the remains of the antient laws of villenage in this country. That Lord Hardwick might have said what is here stated, in order to shew (by way of illustration of the Case upon which he wasthen arguing) that even an Englishman might still become a slave in this country,if he pleased, I cannot deny: but with any intention to prove that the condition of Negroes proceeded from, and was the same with, the condition of villeins, is, I must assert, either the mistake of the person from whose notes this speech was taken, or the intention of him to puzzle and perplex the Case: for it is manifestly impossible that the Court could have put so much self-contradiction and ignorance of the law in the mouth of so wise and so great a lawyer. His Lordship says, “that Trover will lie for a Negroe slave.” Now, can any thing be more expressive of the law and condition of Negroes than this is? What the nature of an action of Trover is, and what kind of property is required in a plaintiff to maintain such an action, every Tyro of the law must be acquainted with. Would his Lordship have said, that Trover would lie for a villein? Every Tyro of the law knows that it would not.But if a Negroe and a villein were governed by the same laws, Trover would lie for a villein. His Lordship’s own words therefore, and not this combination of them, are the best comment upon his meaning; and he in me,non tali auxilio eget, &c. It is enough that I have given the clew; the reader will unravel the rest himself.
I have now only a short word or two more to add, in address to the reader; relying, from my own consciousness, upon his candour, that whatever errors of the head he may discover, he will impute nothing that is wrong to the dictates of my heart. It is not the want of humanity, it is not the want of feeling, but the possession of both, with the love of truth, that has given birth to these Considerations. My motives have been, to shew that America does not afford that scene of barbarity, which misrepresentation would have painted upon it: that cruelties and distress are to be found in much greater excess even in thiselysiumof liberty: that whatever is the state and condition of Negroes, it is Great Britain andnot America that is responsible for it: that this therefore is a British, and not an American question; as well it might be, since, if I may be allowed to reason chymically upon the occasion, whatever property America may have in its drugs, it is Great Britain that receives the essential oyl extracted from them. These have been my views. I neither meant to condemn or approve the state and condition of Negroes. I have appealed to the law: if the traffic made of them be as agreeable to right reason as it is according to law, I am glad of it; if it be not, let state necessities justify state tricks. But I meant an apology for, and not a panegyrick upon, myself.