Part 1

TRANSCRIBER’S NOTE

Italic text is denoted by _underscores_.

The original text used the character ſ (long-form s); these have been replaced by the normal s in this etext.

Footnote anchors are denoted by [number], and the footnotes have been placed at the end of the book.

Some minor changes to the text are noted at the end of the book.

CONSIDERATIONS

ON THE

NEGROE CAUSE

COMMONLY SO CALLED,

ADDRESSED TO

THE RIGHT HONOURABLE

LORD MANSFIELD,

LORD CHIEF JUSTICE of the COURT of KING’S BENCH, &c.

By SAMUEL ESTWICK, A. M. LL.D. Member of Parliament for the Borough of _Westbury_.

THE THIRD EDITION.

LONDON: Printed for J. DODSLEY, in PALL-MALL.

M.DCC.LXXXVIII.

[Price 2_s._]

_ADVERTISEMENT_

TO THE

READER.

_The judgment that was given in the case of Somerset and Knowles, so contrary to the received opinions at that time, and to the general sense of the nation before, having laid the foundation upon which all the various speculations that upon this subject have since been raised, and which are at length so magnified and enlarged as to become the object of a Parliamentary Inquiry; it is imagined, that a review of some of the arguments which were made use of on that occasion may not, in the present moment, be thought either impertinent or unseasonable._

_It is under this idea then, that the following Considerations are again brought forward to the public notice: and although their primary object was to fix and ascertain the ground upon which the Owner claimed a right to his Negroe, and insomuch to develope the subject from the mist and mystery with which it was want to be surrounded; yet in the course of their perusal it will, perhaps, be found, that there are not wanting answers to some of the most leading and popular objections of the day; that there are some observations and remarks, as new in themselves, as they have been and are still unanswered; and withal, that no part of the performance is of a complexion that can do injury, that may not produce some good, and of which the author, notwithstanding the distance of time from its publication, feels that he has either cause to be ashamed, or reason to repent._

PREFACE.

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 more useful 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 of _due attention_ to the Court, and that the determination rested on this particular Case _only_, from circumstances of insufficiency arising out of the return made to the writ of Habeas Corpus, I was induced to suffer this 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, are _shortly_ examined, though (with what is offered in the text) it is to be presumed, _fully_ refuted.

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 following _is said_ to be the substance of Lord Mansfield’s speech in the case of Somerset and Knowles: “We pay due attention to the opinion of Sir Philip Yorke and Mr. Talbot in the year 1729, by which they _pledged_ themselves 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 or _Owner_, either by being christened, or coming to England: that though the statute of Charles II. had abolished Tenure so far, that no man could be a _Villein regardant_; yet if he would acknowledge himself a _Villein_ engrossed 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 the _only_ question 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, the _slave_ absented 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 the ship 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 kingdom _where_ executed. A foreigner cannot be imprisoned _here_ on 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 slaves must 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 return_ is 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 at all 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 only solution 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 commercial _property_; 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 now _in use_ in 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 a _Villein 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 was then 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 this _elysium_ of liberty: that whatever is the state and condition of Negroes, it is Great Britain and not 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.

CONSIDERATIONS ON THE NEGROE CAUSE, &c.

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 Negroe _versus_ Knowles 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, or depreciate 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: the examples, 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 own _native_ ground 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 expounder of 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 different from 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 operate in 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 matter must 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 sufficient foundation 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 quality of 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; yet _the right_ which Mr. Steuart claims in the Negroe, Somerset, is _a right_ given 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 hitherto been 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 of _commercial 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.