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Examination of the Advantages and Disadvantages of tolerating Slavery in England. IV. Remarks on the ancient Villenage; fhewing that the obfolete Laws and Customs, which favoured that barrid Oppreffion, cannot justify the Admiffion of the modern Weft Indian Slavery into this Kingdom, nor the leaft Claim of Property, or Right of Service, deducible therefrom. By Granville Sharp. 8vo. 2 s. fewed. White, &c. 1769.
HE law of nature, deduced from philofophical reasonings, fuppofes an equality among all mankind, independent of the laws of fociety; nor can any focial compact fuppofe one man to furrender his liberty, with a property in his perfon, up to any other; a barter for which he can receive nothing in exchange of equal value. There are various fpecies of men, in various parts of the earth, characterized by colour and features; but none of these distinctions can establish a fuperiority of one class over another, that cannot be converted to the ufe of any people, after a fuccessful exertion of force or fraud, has vested them with power,
Mr. Hume, indeed, in his Effay on National Characters, fays in a note, I am apt to fufpect the negroes, and in general all the other species of men (for there are four or five different kinds) to be naturally inferior to the whites. There never was a civilized nation of any other complexion than white, nor even any individual eminent either in action or fpeculation.-Not to mention our colonies, there are negroe flaves difperfed all over Europe, of which none ever difcover any fymptoms of ingenuity; though low people, without any education, will ftart up among us, and diftinguifh themselves in every profeffion." --But if the general truth of this opinion is fubfcribed to, it can have nothing to do in this argument, unlefs to plead the power of doing iniquity, in proof of the right. The ftandard of the human faculties is not fixed, even among the most civilized nations, and what would become of fociety, if every man who could manifeft a fuperiority in ftrength or judgment over another, was on that plea to claim a property in him? The operation of wholefome laws, is to fupprefs the undue influence of fuperior powers among individuals; and the law of this land knows no diftinction between man and man from the colour of the skin.
Where flaves, when in England, have met with friends to protect them in fuing for liberty in our courts, they have been releafed from the claims of their mafters; though fome refpectable names in the law, have given opinions of a different nature. But pofitive laws and judicial decifions, are more in point: than opinions; for as Dalrymple, in a paffage quoted by the Author before us, obferves, that the judges, by bending their
interpretations to the genius of the times, contributed to the decay of the feudal fyitem; the same pliability at another time may have a contrary tendency.
The opinion of York and Talbot, the attorney-general and folicitor-general, dated in the year 1729, in favour of a master's claim to his flave in England, is produced by Mr. Sharp:
The opinion confifts of three parts, 1ft, "That a flave, by coming from the West Indies to Great Britain or Ireland, either with or without his mafler, doth not become free, and that his mafter's property or right in him, is not thereby determined or varied." All this is certainly true, providing the mafter can produce an authentic agreement or "contract in writing;" by which it fhall appear, that the faid flave hath voluntarily bound himself, without compulfion or illegal durefs.
2dly, They affirm, "That baptifm doth not beflow freedom on him (the flave) nor make any alteration in his temporal condition in thefe kingdoms." This I am willing for the prefent to allow, as I have not hitherto feen any fufficient authorities to alledge against it.
The 3d part of the opinion is, "That his” (the flave's) "mafter may legally compel bim to return again to the plantations." This is certainly true, provided that the mafter is poffeffed of fuch an agreement or contract, as is before mentioned.'
These points the Author humanely, and to all appearance with great juftice, labours to establish; though his reasoning is often diffufive, and might, on the whole, perhaps have been better digefted. As a fpecimen of the Author's manner, we fhall produce what he fays refpe&ting aliens, which appears of direct importance in this queftion:
An English fubject cannot be made a flave, without bis own free confent, as I have before obferved, but, on the other hand, a foreign flave is made a fubject, with or without his own confent: there needs no contract for this purpofe, as in the other cafe, nor any other act or deed whatfoever, but that of his being landed in England; "For every alien and ftranger born out of the king's obeifance, not being denizen, which now or hereafter" (fays a ftatute of 32 Hen. viii. ch. xvi. fect. ix.) fhall come in or to this realm, or elsewhere within the king's dominions, fhall, after the faid firft of September, next coming, be bounden by and unto the laws and ftatutes of this realm, and to all and fingular the contents of the fame.'
Now it must be observed, that this law makes no diftinction of bond or free; neither of colours or complexions, whether of black, brown, or white; for "every alien and franger" (without exception)" are bounden by and unto the laws," &c.
This binding or obligation, is properly expreffed by the English word ligeance (a ligando) which may be either perpetual or temporary:" (Wood, b. i. c. iii. p. 37.) but one or other of thefe is indifpenfably due to the fovereign from all ranks and conditions of people. Their being "bounden to the laws," (upon which the fovereign's right.
Is founded) expreffes and implies their SUBJECTION to the laws; and therefore to alledge, that an alien is not a SUBJECT, because he is in bondage, is not only a plea without foundation, but a contradiction in terms; for every perfon, who in any respect is in subjection to the laws, maft undoubtedly be a fubje&.
- Foreign ambaffadors, indeed, by the law of nations, enjoy peculiar privileges; which are also confirmed by a statute of 7 Ann, ch. 12. as well as the privileges of their fervants; though the latter cannot claim them, unless their names are registered in the fecretary's office, &c. pursuant to the said statute.
Nevertheless, even an ambaffador is, in fome degree, fubject to the laws of this realm; for if fuch a one " is guilty of treafon against the king's life, he may be condemned and executed, but for other treasons, he fhall be fent home, with a demand to punish him, or to fend him back to be punished." Wood's Inft. b. iii. ch. i. p. 588. Ambaffadors could not be faid to be guilty of treafon, if they were not confidered as "bounden" by a fort of temporary allegiance to the king, in return for his protection, and that of the public faith, during their refidence in this kingdom.
I come now to the main point in queftion; for as I have proved, not only that there are different degrees of fubje&tion in England, but alfo, that bondmen may be subjects as well as freemen, the inevitable conclufion upon the whole is, that every man, woman, or child, “ that now is, or hereafter shall be an inhabitant or refiant of this kingdom of England, dominion of Wales, or town of Berwick upon Tweed," is in fome refpe&t or other the king's fubject; and, as fuch, is abfolutely fecure in his or her perfonal liberty, by virtue of a ftatute, 31 Car. II. ch. ii. and particularly by the xiith tection of the fame, (a copy of which is hereunto annexed) wherein fubjects of all conditions are plainly included. This act is exprefsly intended for the better fecuring the liberty of THE SUBJECT, and for prevention of imprisonment beyond the feas," It contains no diftinctions of natural born, naturalized, denizen, or alien Juljects, nor of white or black, free-men, or even of BOND-MEN (except in the cafe already mentioned of a contract in writing, allowed by the 13th fection, and the exception likewife in the 14th fection, concerning felons) but they are all included under the general titles of "the fubject," "ANY OF the faid fubjects," "every fuch perfon, &c." Now the definition of the word "PERSON, in its relative or civil capacity," (according to Wood, b. i. c. ii. p. 27.) “is either the king or a fubject." These are the only capital diftinctions that can be made; tho' the latter confifts of a variety of denominations and degrees: therefore perhaps it may be a dangerous point to advance, that any perfon whatsoever in England, befides the king, is not a fubject; left the fame fhould be conftrued as a breach of the ftatute 23 Eliz. ch.i. (intitled, An act to retain the queen's majefty's fubjects in their due obedience) whereby "all perfons whatsoever are liable to the penalties of the faid act, who "have, or shall have, or shall pretend to have power, or fhall by any ways or means put in practice to abiolve, perfuade, or withdraw any of the queen's majefty's fubjects, or any within her highness's realms and dominions from their natural obedience to her majefty." &c. fect. ii.
But if I were even to allow that a negro flave is not a fubject (tho' I think I have clearly proved that he is) yet it is plain, that fuch an one Rav. July, 1769.
ought not to be denied the benefit of the king's courts, unless the flave holder fhall be able to prove, likewife, that he is not A MAN; becaufe "EVERY MAN may be free to fue for and defend his right in our courts" (fays a ftatute 20 Edw. III. ch. iv.) " and elsewhere according to law." And NO MAN of what eftate or condition that he be" (here can be no exception whatfoever) "fhall be put out of land or tenement, NOR TAKEN, NOR IMPRISONED, nor difinherited, nor put to death, without being brought in answer by due process of the law." 28 Edw. III.
"NO MAN," therefore, "of what eftate or condition that he be," can lawfully be detained in England as a flave, because we have no lavs whereby a man may be condemned to flavery, without his own confent, (for even convicted felons mult" in open court pray to be transported) and therefore there cannot be any " due process of the law," tending to fo base a purpose: it follows therefore, that every man who prefumes to detain any perfon whatsoever as a flave, otherwife than by virtue of a written contract, acts manifeftly without "due process of the law," and confequently is liable to the flave's “action of false imprisonment,” becaufe EVERY MAN may be free to fue, &c." 10 that the flaveholder cannot avail himself of his imaginary property, either by the affiftance of the common law, or of a court of equity; for in both, his fuit will certainly appear unjust and indefenfible. The former cannot affift him, because the ftatute-law at prefent is fo far from fuppofing any man in a state of flavery, that it cannot even permit fuch a flate, except in the two cafes mentioned in the 13th and 14th fect. of the Habeas corpus act; and the courts of equity, likewife, muft neceffarily decide against him, because his mere mercenary plea of private property, cannot equitably (in a cafe between man and man) stand in competition with that fuperior property, wh ch every man mult neceffarily be allowed to have in his own proper person.
How then is the flaveholder to fecure what he esteems his property? Perhaps he will endeavour clandeftinely to feize the fuppofed flave in order to tranfport him (with or without his confent") to the colonies where fuch property is allowed. But let him take care what he does; the very attempt is punishable; and even the making over his property to another for that purpose, renders him equally liable to the fevere penalties of the law; for a bill of fale may certainly be included under the terms expreffed in the Habeas Corpus act, (12th fect,) viz. “ any warvant or criting for fuch commitment, detainer, imprisonment, or tranfportation, &c."
It is alfo dangerous for a counsellor or any other perfon, to adife (fee the act "fball be advising," fuch a proceeding by faying," that a mafter may legally compel him (the flave) to return again to the planta tions." Likewife an attorney, notary-public, or any other perfon, who fhall prefume to draw up, negotiate, or even to witness a bill of fale, or other inftrument for fuch commitment, &c. offends equally against this law; because, "All or any perfon or perfons, that fhall frame, contrive, write, feal, or counterfign ANY WARRANT OR WRITING for fuch commitment, detainer, imprisonment, or transportation, or fhall be ADVISING ading, or affiling in the fame, or any of them;" are liable to all the peralties of the act," And the plaimiff in every fuch action, shall have judgment to recover his treble cofis, betides damages, which damages, fo
to be given, fhall not be less than five hundred pounds; fo that the injured may have ample fatisfaction for their suffering. And even a judge may not direct or inftruct the jury, contrary to this ftatute, whatfoever his private opinion may be concerning property in flaves; because, " no order or command, nor no injunction" is allowed to interfere with this golden act of liberty.
Some have thought that the word injunction does not relate to the dictating of a judge, but to the mandate of the lord chancellor, which is fometimes iffued to prevent the recovery of exceffive damages. this does not remove the force of the above mentioned obfervation; for if the interpofition of equity is not permitted, fo that the injunction, even of a lord chancellor, cannot remove the literal force of this law, 'tis certain that the injunction of an inferior judge (who is more particularly bound by the letter of the law) ought not to avail any thing.
Now if all these things be confidered, I think, we may fafely prefer the fentiment of that excellent lawyer lord chief juftice Holt, (before quoted) to all contrary opinions, viz. that "as foon as a negro comes into England, be becomes free." Salkeld's Reports, Vol. ii. p. 666.
In the third part, he inftances the intolerable cruelty of the plantation laws for flaves, and fervants, and the fhocking fevérities, and wanton barbarities exercised under the fanction of them. These are indeed painful to read, and are no wife extenuated by alledging the perverse difpofitions and obftinate temper of the negroes.
Our Author's remarks, under the fourth part, appear to be conclufive, but for thefe we must refer to the work.
Effays on feveral fubjects, viz. I. On the late Act to prevent clandefine Marriages. II. On the Guilt and Danger of contracting Debts. III. On a Prifon. IV. On the Price of Provifions. 8vo. 2s. 6d. fewed. Rivington, &c. 1769.
HESE Effays, which, from fome circumftances in the ftyle and matter, may be fuppofed the work of a clergyman, confift' of a great variety of loofe remarks, but contain very little of close connected argument. The first Eflay is by no means a full difcuffion of the fubject of clandeftine marria ges; indeed the Author may reply, that the title of the Effay does not promife more than it gives; but the Reader who takes it up, will, in all probability, expect more than he finds. The Effayift fets out with a principle which he has no right to affume, not having established it, and it being a pofition which fome readers may think requires proof: for however true it may be, that clandeftine marriages ought to be prohibited, the affertion would have appeared with more propriety at the close of an Effay, than at the beginning, where it stands as the foundation of the reafoning that follows.