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

Herein then, my Lord, is not to be found even the trace of an idea of slavery considered as such by Parliament, among Negroes: but, on the contrary, what their legal state and condition is, is conceived and expressed in terms so plain and clear, so explicit and precise, that the most sceptical cannot doubt the meaning, nor the most simple fail to understand it. They are, as houses, lands, hereditaments, and real estate, assets; and, in like manner as personal estate, to be disposed of, for the payment of debts due to the King and his subjects.

Upon this state and exposition then, my Lord, of these several statutes, it would seem that I am well warranted, by their authority, in my idea, that the right which Mr. Steuart claims in the Negroe Somerset, is a right given him by act of parliament; and confirmed in my proposition, that this is a case of property.

But, my Lord, in order fully to establish this doctrine, it may perhaps be expected, that I should not only shew what the law is, but that I should prove also what the law is not; and this must necessarily lead me to reason somewhat more closely on the subject.

I am aware it may be objected, my Lord, that property in Negroes so vested, is a property created in Africa for the use and purpose of the colonies in America: from whence a question will be deduced, Whether Negroes are property in England?

It appears, my Lord, that a trade is opened, with the sanction, and now under the protection of parliament, between the subjects of Great Britain and the natives or inhabitants of Africa. The medium of this trade on the one hand are, manufactures, goods, wares, and other merchandize: on the other, captive Negroes, or slaves; which, for these commodities, are given in barter and exchange. It will be allowed, I presume, my Lord, that these British traders, or merchants, have an absolute property in their merchandize; to truck and to traffic with this merchandize is the legal institution of the trade: it will be absurd then to deny, that they have not an equal interest in the thing received, as they had in the thing given. To avoid this dilemma then, the objection recurs; that, in Africa they may have an interest, in America they may have the same, in Europe they have none: but assertion without proof, is argument without weight. Where is the law that has drawn this line of distinction? Is there any act of parliament, or clause of an act of parliament, that has fixed and described the zones or climates wherein property in Negroes may be held, or where it may not be held? Until I am better informed, my Lord, I must take for granted, that no such law exists; and if no such law does exist, the manifest conclusion is, that where property is once legally vested, it must legally remain; until altered or extinguished by some power co-equal to that which gave it[4].

But as it may perhaps be to the purpose, my Lord, to try the force and effect of these acts of trade referred to, I will, with your Lordship’s indulgence, state a case or two, whereby their operation in this country might be felt and perceived.

Suppose, my Lord, that a fleet of merchant ships belonging to the African company, containing twenty thousand Negroes on board (more or less, it is of no matter), bound from Africa to America, should, by strange, contrary, and adverse winds, be driven and wrecked upon the coast of England; that the ships were lost and destroyed, but that the Negroes had been landed in safety on this shore of freedom: would the African company, my Lord, be justified and entitled to re-ship these Negroes in other vessels, to the end that they might be conveyed to their destined ports in America? Or, would the pure air of this country, as has been insisted on, set them, with caps of liberty on their heads, free and at large; thereby robbing, for so I must call it, these merchants of their property to the amount of one million of money, at the allowance, and on the moderate computation, of fifty pounds price for each individual Negroe? In this kingdom of commerce, my Lord, where the rights of merchants are so well distinguished, and the laws of trade are so minutely known, I should presume that the case would not admit of a question. Of what use would the charter of this company be to them, if the laws protective of that charter should be found inadequate and ineffectual to the maintenance and security of their property? But again: it has been observed, that by the statute of the 5th of George III. chap. xliv. a number of canoe-men, and other Negroes, in Africa, were vested in the Crown. Now, by canoe-men, I suppose, my Lord, are meant, African sailors. Suppose then, that one hundred, for example, of these sailors should, by some contrivance or other, find their way into England; would the King, my Lord, have authority to remand them to their place of duty? or, would writs of Habeas Corpus, in despite of this act of Parliament, protect them here; thereby determining the right of the Crown in them? The case, my Lord, speaks and determines for itself. Wherein then, my Lord, differs the case of Mr. Steuart from these? Their importance is greater, but the principle throughout is the same. I believe it is not denied that Mr. Steuart was the bona fide purchaser of Somerset, in the legal course of trade. I do not apprehend that any evidence was offered to shew that he had stolen him, or that he came by him otherwise surreptitiously. If my memory does not fail me, the property was proved, by affidavit, before your Lordship; or it was stated in the return made to the Writ of Habeas Corpus; but in either way it is of no concern, since the title-deeds are not now before the Court as the objects of Litigation[5].

Here then, my Lord, without farther disquisition, I might venture to rest the defence of Mr. Steuart, and therein the law of the case itself. The reasoning, perhaps, may be said to be new, and it is opinion only of my own that supports the doctrine: but, I trust, that, upon examination, it will be found to be not therefore the less conclusive. However, as I am upon the subject, it may not be amiss that I should pursue it somewhat farther; and, by extending the chain of enquiry, strengthen and enforce the arguments that have been already offered and applied. It was said, by one of the plaintiff’s counsel, that municipal laws were binding only in the state wherein they were made; that, as soon as a member of that state was out of it, they ceased to have their influence on him; and the laws of nature of course succeeded to him. As a general proposition, my Lord, this might have had its admission; but even as such, it is not without its exception. I think I have the most classical authority of the law to say otherwise. For instance, allegiance, which is the duty that every subject owes to the sovereign, or sovereignty, of that particular state to which he belongs, is a municipal law; and yet, neither time, place, nor circumstance, can alter, forfeit, or cancel, the obligation. An Englishman (says Judge Blackstone)[6], who removes to France or to China, owes the same allegiance to the King of England there as at home, and twenty years hence as well as now. But, my Lord, with regard to the particular application of this proposition, when the gentleman endeavoured to make a distinction between the laws of the colonies and the laws of England, in my apprehension he was extremely mistaken. I fancy the relationship and dependency of the children colonies on their mother country did not occur to his mind. The circumstance of their having internal laws of their own, by no means argues a difference in those laws, independent of the laws of England. As well might it be said, that the laws of England are not the laws of the county of Kent, because by the custom of gavelkind they differ from the general laws in the disposition of Estates; and so of Borough-English, and wherever in this kingdom particular customs are to be found or met with. For, my Lord, it is not only a first and leading principle of legislation in the colonies, arising out of their original grants and charters, and enforced by the royal instructions given to commanders in chief there; but it is also enacted by the statute of the 7th and 8th of William III. ch. xxii. “that no law, usage, or custom, shall be made or received in the plantations, repugnant to the laws of England:” so that, by these restrictions, the very leges loci (wherein, from situation, from climate, and from other circumstances, one might naturally suppose some difference) are forced as much as may be to a conformity with the constitution and laws of this country; and to prevent even the accident of a contrary occurrence, your Lordship knows, that there is a counsellour appointed to the board of trade here, whose especial business it is, to examine all the colony acts, and thereupon to make his report, if necessary, previous to the royal confirmation of them. If property, therefore, in Negroes, was repugnant to the law of England, it could not be the law of America: for (besides the reasons already assigned) by the same statute wherever this repugnancy is, there the law is ipso facto null and void. But I will further endeavour to elucidate this matter, by begging a question or two, by way of case in point. Let it be admitted then, that a colony of English had embarked from hence, in order to establish settlements for themselves in some one of the late ceded islands in the West Indies, and that they were arrived, it may be said, in the island, where English troops, trampling on the laws of God and man, are slaughtering even to extirpation a guiltless race of Caribs, the aborigines of the country. I mean the island of St. Vincent, an island under the tutelage of a Saint too! And suppose that, upon their arrival there, the Legislature of that country had taken it into their heads to pass an act similar to the 25th of Geo. II. ch. xl. already referred to, thereby vesting these people as property, in certain owners allotted to them: I should be glad to know, my Lord, whether this act could possibly have operated as a law, and whether it was not, eo instanti, upon its being enacted, destitute and void of all force, validity, and effect? Your Lordship’s answer doubtless would be, that this act must have been its own executioner, that it was felo de se. Why then, my Lord, does not the principle directive of this conclusion on the case of the colony of English, determine likewise on the case of the Negroes? If an act of an American plantation making property of a colony of English there, is nullified ab initio from its being enacted, why is not an act making property of a colony of Africans susceptible of the same nullity? The reason, my Lord, is twofold: first, because in the one act, such a law is not only repugnant to, but absolutely subversive of, the laws of England: secondly, because in the other act, such a law is not only consistent with, but founded on, the laws of England: and this, my Lord, proves to mathematical demonstration, that the colony laws are not only in general dependant on the laws of England, but, in particular instances, owe their origin and source to them: so that, as the refracted rays of light, diverging from one point through a prism, may be concentred in the same focus; in like manner may these laws, notwithstanding their number and variety, be collected and disposed of in one common system or digest, as parts of the same whole. From what therefore I have here suggested, my Lord, I mean to conclude generally, that the right and property, not only of Mr. Steuart in his Negroe Somerset, but of every subject of Great Britain in his Negroe or Negroes, either in the colonies or elsewhere, is a right and property founded in him by the law of this land; that the royal grants, letters patent, and charters, for and of the African trade and company, confirmed and established by acts of Parliament, are the foundation whereupon all the laws of the colonies, respecting their Negroes, are built; and that, without such sanction, those laws could never have been made. For, my Lord, it is evident that the colonies could not have had power of themselves to institute this trade to Africa; neither have they the means to support it. Without this trade then to Africa, no Negroes could have been imported to them; and if they had had no Negroes among them, they had needed no laws appertaining to Negroes[7].