Part 4

Now the physical motive supposes a difference of species among men, and an inferiority of that species in Negroes: whereas the political consideration, on the other hand, infers an universal sameness in human nature; that is to say, in fact, that Englishmen are Negroes, and Negroes are Englishmen, to all _natural_ intents and purposes. For what signifies the black skin, and the flat nose, as the great Baron Montesquieu would insinuate[18]? And yet methinks, if the Baron had had a black skin, and a flat nose, the world never would have had the benefit of his _Esprit des Loix_. Upon this ground then, the question that arises is, what could have given rise to this degradation and debasement of human nature? If these our fellow-creatures were instruments necessary for the colonizing of America, and to this end compulsory laws were expedient also, why were these laws not made suitable and suited to their nature? Why were Negroes ordained a _mortuum vadum_, instead of a _vivum vadum_, (so to speak for comparison sake) to those under whose dominion they came? Might not the laws of villenage have been revived _quoad_ them? Might not other laws of slavery have been enacted for their government?

Here is it then that policy, which is the object of my discovery, must have intervened. Now the planting of the colonies opening with the 16th century, and consequently commencing nearly with the reign of James I. it appears, that during the reigns of this race of kings, their cultivation and improvement were so rapidly had, that, from a state of infancy, before the end of the reign of Charles II. they had grown up and increased to the vigour of manhood. It is in this period of history, therefore, my Lord, that I am to search for, and to trace, the cause of this allotted condition of Negroes: but, as it cannot be expected that I should here enter into the particulars of those times, so neither is it necessary to my purpose. A single incontrovertible observation will serve to rest the whole of what I have to offer on this subject; and which is this: that from the _alpha_ of the reign of James I. to the _omega_ of the reign of James II. _to enslave_, was the fixed principle and uniform plan of government. This then at once accounts for the toleration of a measure, so inconsistent with the principles of the constitution of this country: but the reason upon which the measure was grounded is not so immediately obvious. From things that are more known, things that are less known must be deduced. Now it is a maxim in politics, that to obtain an end, direct means are not always to be pursued, or rather that _indirect_ means are allowed to be practiced; and this will lead me to mention two questions that have been already stated. Why were not the laws of villenage enforced? or why were not other laws of slavery enacted for the government of these people? The answer is plain; these were edged tools, which the complexion of the times would not suffer the use of. Enough was the plan of government exposed, though hid under the cloak of religion. Such a step would have left it naked, and without a covering. Policy therefore prevented that which the jealousy of the people would have forbidden. In vain would have been the argument, that these laws were intended for operation in the new world of America. _Ever to begin at the extremes_ is a well-known rule in the art of attaining to despotism. The more distant the design, the deeper laid is the scheme, and the more sure in its consequences. As in the body natural, even so is it in the body politic. The disease that lays hold of the toe, often finds its way to the heart. Gradual encroachments by imperceptible movements are the most dangerous symptoms. They call off attention to remedies, and lull suspicion to sleep. But may all lovers of liberty ever have their eyes open and awake to this despotic process! He that would tyrannise in America or abroad, awaits only the opportunity of becoming a tyrant at Home; but thank God, my Lord, the present times with us, of all others, give least occasion for any apprehensions of this sort. But to return. Instead then of that Demon Slavery being called in to preside over Negroes, Trade, the guardian angel of England, was made the ruler of them. This I attribute to policy; which, however seemingly more constitutional, was not less favourable to the ruling principle of the Crown. I have already admitted, that to erect corporations, and to grant Letters Patent for the purposes of trade, are in the Crown its undoubted prerogative; but, considering Negroes as human creatures, and upon a level with ourselves, I submit it to your Lordship, that the Crown had no right to make slaves of them; whatever the uncontroulable power of an act of parliament might do: and yet Charles the Second, by his Charter only to the Duke of York, _enslaved_ whole nations of these people. The apology, I apprehend, for this, my Lord, will be; that neither this Charter, nor any other Grant, have ever conceived Negroes in this light and view; as, relation being thereunto had, will more fully appear[19]. If so, my Lord, two things come out in proof: _presumptively_, that the Crown had no right of itself to make slaves of Negroes, or it would, in those days at least, have exerted it; _positively_ by these authorities themselves, that Negroes are not considered as slaves under the idea of slavery, but merely as matter of commercial property, and articles of the trade of this country.

If now, my Lord, I have supported the doctrine which I took upon me to evince, and have satisfactorily shewn, that property is the gift of action in this case, thereby proving that Mr. Steuart may of course legally compel Somerset to return to the Plantations, I shall leave its decision to your Lordship, on a quotation of your own words: “It is not my business to alter the law; or to make it, but to find the law.”

It remains then only to observe, that if Somerset is the legal property of Steuart, he, Somerset, cannot legally be entitled to the writ which he has sued out in aid of relief. The writ of Habeas Corpus is a writ of right given to the subjects of the Crown of England, for the security of their liberties. If Somerset can fall under this predicament and description, he is open to the benefits that may arise therefrom; but if the law has already fixed the _fiat_ of property on him, I apprehend it is a _legal_ exception to the writ, and his right is foreclosed thereby.

Having said thus much, my Lord, on one side of the question, I do not mean to conceal my sentiments on the other. My aim is, to establish the truth: my wish, that what is right should be done. Whatever then is here the result of my reflections, to obtain the end I propose, is necessary to your Lordship’s information.

When this matter, therefore, was first in agitation, it stated itself thus generally to my comprehension: that as it was a case which existing for two centuries and upwards, and never receiving finally any judicial determination, it had better remain in the situation it was. It compared itself to me with some cases of royal prerogative, and of parliamentary privilege, which were excellent in theory, but subject to inconvenience in practice; and whose best and safest law was that of suspense: but, my Lord, when I found that the case was to be argued, and the judgment of the Court of King’s Bench taken thereupon, my hopes were, that, if it was possible to counteract the law of the land, the decision would be in favour of the Negroe: for although the knowledge of their being free might spirit them up to insurrections in America, yet it would put a stop to their importation here by their owners, and they would be more usefully kept and employed in the colonies to which they belonged. On the contrary determination too, my Lord, it being solemnly adjudged that Negroes in this country were not free, I foresaw that this fatal consequence might follow: that the trade from Africa to America would be diverted from Africa to England; and Negroes, in process of time, would be sold in Smithfield market, as horses and cattle now are. Each farmer would have his Negroe to drive his plough, each manufacturer his slave under his own controul; and America that was conquered in Germany, as was the saying of a very great man, would become America ruined in England.

A great deal, my Lord, was urged by the learned counsel, of the edicts of France, relative to Negroes: but it does not occur to my memory that this, among the rest, was taken notice of. It may be, that I am misinformed with respect to the fact; but I will tell your Lordship how I came by it. I have been myself, my Lord, a traveller through every province of France, and during my tour I never had opportunity of seeing more than two Noirs (or Blacks) as they are there called; one of which was at Marseilles, the other at Bourdeaux, the two chief ports of trade with the American colonies of that kingdom. Knowing therefore the intercourse with, and observing the fewness of these people, I was led to enquire into the reason of it; when I was informed, that there was an absolute edict of the present King of France, prohibiting the importation of them into that country, upon this political idea, that otherwise the race of Frenchmen would, in time to come, be changed. Greater much, my Lord, is the reason in this country to apprehend this event. It was in representation, if not in proof, to your Lordship, that there were already fifteen thousand Negroes in England; and scarce is there a street in London that does not give many examples of that, which, with much less reason, had alarmed the fears of France. Upon the whole, then, my Lord, let America and England look up to your Lordship, as the man qualified to draw the line of propriety between them. To this end, let a Bill originate in the House of Lords, under your Lordship’s formation: let slavery, so far as property is such in Negroes, be held in America: let the importation of them be prohibited to this country, with such other regulations and provisions as your Lordship shall see fit to lake place. Some centuries back, slavery was the law, and slaves the objects of that law, as I observed before, in this kingdom: but civilization has extinguished the existence of both. When America shall be what England is, some yet undiscovered land will become what America is. In short, my Lord, by this act you will preserve the race of Britons from stain and contamination; and you will rightly confine a property to those colonies, upon whose prosperity and welfare the independent being of this country rests.

SAMUEL ESTWICK.

Portman-Square, Dec. 10, 1772.

FINIS.

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 return _fairly_ admits slavery to be the _sole_ foundation of Mr. Steuart’s Claim.” Thus, with a _Petitio 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 the _bona fide_ purchaser 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 of _Habeas Corpus_ might 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 Somerset _a Negroe_, yet it is meant and intended as a course of reasoning upon the general question of the state and condition _of 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 said _a 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 the _Code 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, and _national_ concern.

[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 his _ipse dixit_, produce authorities to set aside this objection? He is on other occasions not sparing of proofs and citations. But what is his _ipse 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 is _the 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 whatsoever _not 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 mere _reductio 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 lawful _now_ in America, however questionable its _first_ introduction there might be, it may be urged that the _lex loci_ ought 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 the _lex loci_ of these colonies upon the same footing with the _lex loci_ of Russia or Prussia, or any other foreign country: whereas the _lex loci_ of the colonies is founded on the _lex loci_ of 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 is _unreasonable_, 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.