Part 3

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 the navy; 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 lashes each, 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 madmen in 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 mere _argumenta 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, which promise 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 become free; and that his master’s _property_ or _right_ in 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 may _legally_ compel 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 in England, 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 be _right_ in point of _reason_; but, I submit it, that they are _wrong_ in point of _law_[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 upon to be the servant of his master; but by what authority is the relation of _servant_ and _master_ created? Not by the authority of the law, however it may be by the evidence of reason. By the law, the relation is, as _Negroe_ and _Owner_: 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 to things 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 the _property of their masters_ (he should have rather said _owners_) _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 are purchased when captives of the nations with whom they are at war, and therefore the _law of nations_ gives their masters a property in their persons; would your Lordship have thought this a _lawful_ plea 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, acquire _the 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 whether _human nature_ is 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, the _Cur_, the _Quare_, the _Quamobrem_, of these laws. To which, in the language and postulate of the Greek Philosopher, I reply; that, as matter of fact is the Δὸς ϖοῦ ϛῶ of 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 as _human 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 one _physical_, the other _political_. 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 those _arcana_ of nature that are not to be revealed to human understanding. But, although these phænomena in nature are not to be accounted for, 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 opinion _universally_ received, that human nature is _universally_ the 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 is _prima facie_ evidence 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 nature arranged 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 many _kinds_, each kind having its proper _species_ subordinate 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 a _class_, comprehending an _order_ of beings, of which man is the _genus_, divided into distinct and separate _species_ of 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 of _a moral sense_ in, 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, the _moral sense_ being 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 improvements had 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 probably affords 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 in _the same rude situation_ near 2000 years ago in which they are at present; that is, they had _nothing of humanity_ about them _but the form_. This may either be accounted for by supposing, that nature has placed some insuperable barrier between the natives of 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 very _certain_ that 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 religion which 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 the _moral 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, not in _kind_, but in _species_; and verifying that unerring truth of Mr. Pope, that

“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 the _corporeal_ as well as _intellectual_ differences 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 the _physical_ motive, which, as it is apprehended, might have occasioned the _civil_ existence, if I may so say, of Negroes in this kingdom; the _political_ consideration proposed comes next in the order of enquiry. It must be observed, my Lord, that if the cause already assigned be 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 his _game_ was _man_.”