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.Estwick, Samuel
Philosophy
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.
Estwick, Samuel
Slavery -- Law and legislation -- Great Britain; Slavery -- Legal status, laws, etc. -- Great Britain
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
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