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
[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.
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