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.
It is matter of course, my Lord, to say, that you are well acquainted with all the acts of parliament relative to the royal African company of England, from its establishment by charter in the reign of Charles the Second down to the present time[3]. Now, my Lord, the end of this company was trade: the object of that trade Negroes, as the preamble to the act of the 23d of Geo. II. c. xxxi. thus expressly declares: “Whereas the trade to and from Africa is very advantageous to Great Britain, and necessary for supplying the plantations and colonies thereunto belonging with a sufficient number of Negroes, at reasonable rates, it is therefore enacted, &c. &c.” Whatever then, my Lord, is matter of trade, your Lordship knows, must be matter of property. The idea of the one is necessarily involved in the other. But, my Lord, these acts have not been content with this general construction: they have gone farther, and have themselves set the mark and stamp of property upon Negroes. Whether, my Lord, the Legislature is justifiable herein, or whether it has authority by the laws of nature to do this, is not for me to determine. It is, perhaps, a right, like many other civil rights, established by power, and maintained by force: but this is matter of speculation for the speculative. I here contend only, that the fact is as I have stated it to be; and as it will appear by the statute of the 25th of Geo. II. c. xl. “which was made for the application of a sum of money therein mentioned, granted to his Majesty, for making compensation and satisfaction to the Royal African company of England, for their charter, lands, forts, castles, slaves, military stores, and all other their effects whatsoever; and to vest the lands, forts, castles, slaves, military stores, and all other their effects, in the company of merchants trading to Africa;” and wherein it is enacted, that “the royal African company of England, from and after the tenth day of April one thousand seven hundred and fifty-two, shall be, and they are hereby, absolutely divested of and from their said charter, lands, forts, castles, and military stores, canoe-men, castle-slaves, and all other their estate, property, and effects whatsoever; and that all and every the British forts, lands, castles, settlements, and factories, on the coast of Africa, beginning at Port Sally, and extending from thence to the Cape of Good Hope inclusive, which were granted to the said company by the said charter, or which have been since erected or purchased by the said company; and all other the regions, countries, dominions, territories, continents, coasts, ports, bays, rivers, and places, lying and being within the aforesaid limits, and the islands near adjoining to those coasts, and comprehended within the limits described by the said charter; and which now are, or at any time heretofore have been, in the possession of, or claimed by, the said royal African company of England, together with the cannon and other military stores, canoe-men, castle-slaves, at and belonging to the said forts, castles, settlements, and factories, particularly mentioned and set forth in the first schedule to this act annexed (such stores as have been made use of in the service of the forts, and such canoe-men and slaves as may have died since the taking of the said survey, only excepted); and also all contracts and agreements made by or for, or on the behalf of, the said royal African company, with any of the kings, princes, or natives, of any of the countries or places on the said coasts; and all other the property, estate, and effects whatsoever, of the said royal African company, shall, from and after the said tenth day of April one thousand seven hundred and fifty-two, be vested in, and the same and every of them are and is hereby fully and absolutely vested in the said corporation, called and known by the name of ‘The company of merchants trading to Africa,’ and their successors, freed and absolutely discharged of and from all claims and demands of the said royal African company of England, and their creditors, and every of them, and of all and every person or persons claiming under them, or any or either of them.”
Here, my Lord, the legal nature of Negroes, if I may so speak, is fully established and clearly ascertained, by act of parliament. Your Lordship perceives, that they are in hoc verbo declared to be property, and are vested as goods and chattels, and as other effects are, in owners prescribed for them. If it is observed, my Lord, that the term Slave is made use of, and recognized by this act of parliament; it is answered, not relatively so, as to a state of slavery, but descriptively only of such things as shall be deemed the property and effects of this company. The statute, my Lord, of the 5th of His present Majesty, ch. xliv. enacts, “that such parts of Africa as were ceded by the last treaty of Paris, together with the goods, slaves, and other effects thereunto belonging, and which were, by a former act, vested in the company of merchants trading to Africa, shall now become the property of the Crown;” so that the King, as well as this corporation of merchants, are, by the law of the land, possessed, and are now the actual and rightful owners, of a very considerable number of Negroes, under the afore-mentioned description, of canoe-men, castle-slaves, women, children, carpenters, and other artificers, particularly set forth in schedules annexed to the afore-mentioned acts. It is also enacted, “that the trade to Africa shall be free and open to all His Majesty’s subjects, without preference or distinction;” and it is further provided, “that these acts shall be taken and deemed as public acts, and shall be judicially taken notice of as such by all Judges, Justices, and other persons whatsoever, without specially pleading the same.” Thus far, my Lord, do acts of parliament extend in the confirmation and establishment of this trade to Africa. I shall now beg leave to cite one statute more, in order unquestionably to prove what the sense of the Legislature of this country is, with respect to the state and condition of Negroes. This statute, my Lord, is the 5th of Geo. II. c. viith, wherein (it being made for the more easy recovery of debts in His Majesty’s plantations and colonies in America) it is enacted “that, from and after the twenty-ninth day of September one thousand seven hundred and thirty-two, the houses, lands, Negroes, and other hereditaments and real estates, situate or being within any of the said plantations, belonging to any person indebted, shall be liable to, and chargeable with, all just debts, duties, and demands, of what nature or kind soever owing by any such person to His Majesty, or any of his subjects, and shall and may be assets for the satisfaction thereof, in like manner as real estates are by the law of England liable to the satisfaction of debts due by bond or other specialty, and shall be subject to the like remedies, proceedings, and process, in any court of law or equity, in any of the said plantations respectively, for seizing, extending, felling, or disposing, of any such houses, lands, Negroes, and other hereditaments, and real estates, towards the satisfaction of such debts, duties, and demands, in like manner as personal estates in any of the said plantations respectively are seized, extended, sold, or disposed of, for the satisfaction of such debts.”