[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.