Part 7 (1/2)
FIRST PRINTED IN LONDON.
MDCCLXIX.
CONTENTS.
_The occasion of this Treatise. All Persons during their residence in_ Great Britain _are subjects; and as such, bound to the laws, and under the Kings protection. By the English laws, no man, of what condition soever, to be imprisoned, or any way deprived of his_ LIBERTY, _without a legal process. The danger of_ Slavery _taking place in England.
Prevails in the Northern Colonies, notwithstanding the people's plea in favour of_ Liberty. _Advertis.e.m.e.nts in the New-York Journal for the sale of_ SLAVES. _Advertis.e.m.e.nts to the same purpose in the public prints in England. The danger of confining any person without a legal warrant.
Instances of that nature. Note, Extract of several American laws, Reflexions thereon._
EXTRACT, &C.
Some persons respectable in the law, having given it as their opinion, ”_That a slave, by coming from the West Indies to Great Britain or Ireland, either with or without his master, doth not become free, or that his master's property or right in him is not thereby determined or varied;--and that the master may legally compel him to return again to the plantations_,”--this causes our author to remark, that these lawyers, by thus stating the case merely on one side of the question, (I mean in favour of the master) have occasioned an unjust presumption and prejudice, plainly inconsistent with the laws of the realm, and against the other side of the question; as they have not signified that their opinion was only conditional, and not absolute, and must be understood on the part of the master, ”_That he can produce an authentic agreement or contract in writing, by which it shall appear, that the said slave hath voluntarily bound himself, without compulsion or illegal duress_.”
Page 5. Indeed there are many instances of persons being freed from slavery by the laws of England, but (G.o.d be thanked) there is neither law, nor even a precedent, (at least I have not been able to find one) of a legal determination to justify a master in claiming or detaining any person whatsoever as a slave in England, who has not voluntarily bound himself as such by a contract in writing.
Page 20. An English subject cannot be made a slave without his own free consent: but--a foreign slave is made a subject with or without his own consent: there needs no contract for this purpose, as in the other case; nor any other act or deed whatsoever, but that of his being landed in England; For according to statute 32d of Henry VIII. c. 16. Sect. 9.
”_Every alien or stranger born out of the King's obeisance, not being denizen, which now or hereafter shall come into this realm, or elsewhere within the King's dominions, shall, after the said first of September next coming, be bounden by and unto the laws and statutes of this realm, and to all and singular the contents of the same._”
Now it must be observed, that this law makes no distinction of _bond or free_, neither of colours or complexions, whether of _black, brown_, or _white_; for ”_every alien or stranger_ (without exception) _are bounden by and unto the law_, &c.”
This binding, or obligation, is properly expressed by the English word _ligeance, (a ligando_) which may be either perpetual or temporary.
Wood, b. I. c. 3. p. 37. But one of these is indispensably due to the Sovereign from all ranks and conditions of people; their being bounden unto the laws, (upon which the Sovereign's right is founded) expresses and implies this 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 person who, in any respect, is in subjection to the laws, must undoubtedly be a subject.
I come now to the main point--”_That every man, woman, or child, that now is, or hereafter shall be, an inhabitant or resiant of this kingdom of England, dominion of Wales, or town of Berwick upon Tweed,_” is, in some respect or other, the _King's subject_, and, as such, is absolutely secure in his or her _personal liberty_, by virtue of a statute, 31st Car. II. ch. 11. and particularly by the 12th Sect. of the same, wherein subjects of all conditions are plainly included.
This act is expressly intended for the better securing the liberty of the subject, and for prevention of imprisonment beyond the seas. It contains no distinction of ”_natural born, naturalized, denizen, or alien subject; nor of white or black, freemen, or even of bond-men_,”
(except in the case already mentioned _of a contract in writing_, by which it shall appear, _that the said slave has voluntarily bound himself, without compulsion or illegal duress_, allowed by the 13th Sect. and the exception likewise in the 14th Sect. concerning felons) but they are all included under the general t.i.tles of ”_the subject, any of the said subjects, every such person_” &c. Now the definition of the word ”_person_,” in its relative or civil capacity (according to Wood.
b. I. c. 11. p. 27.) _is either the King, or a subject_. These are the _only capital distinctions_ that can be made, tho' the latter consists of a variety of denominations and degrees.
But if I were even to allow, that a _Negroe slave_ is not a subject, (though I think I have clearly proved that he is) yet it is plain that such an one ought not to be denied the benefit of the King's court, unless the slave-holder shall be able to prove likewise that he is not, a _Man_; because _every man_ may be _free_ to sue for, and _defend his right in our courts_, says a stat. 20th Edw. III. c. 4. and elsewhere, according to law. And _no man, of what estate or condition_ that he be, (here can be no exception whatsoever) _shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of the law_. 28th Edw.
III, c. 3, _No man_ therefore, _of what estate or condition that he be_, can lawfully be detained in England _as a slave_; because we have no law whereby a man _may be_ condemned to _slavery_ without his own consent, (for even convicted felons must ”_in open court pray to transported_.”) (See Habeas Corpus act, Sect. 14.) and therefore there cannot be any ”_due process of the law_” tending to so base a purpose. It follows therefore, that every man, who presumes to detain _any person_ whatsoever as a slave, otherwise than by virtue of a written contract, acts manifestly without ”_due process of the law_,” and consequently is liable to the slave's ”_action of false imprisonment_,” because ”_every man may be free to sue_,” &c. so that the slave-holder cannot avail himself of his imaginary _property_, either by the a.s.sistance of the common law, or of a court of equity, (_except it appears that the said slave has voluntarily bound himself, without compulsion or illegal duress_) for in both his suit will certainly appear both unjust and indefensible. The former cannot a.s.sist him, because the statute law at present is so far from supposing any man in a state of slavery, that it cannot even permit such a state, except in the two cases mentioned in the 13th and 14th Section of the Habeas Corpus act; and the courts of equity likewise must necessarily decide against him, because his mere mercenary plea of _private property_ cannot equitably, in a case between _man and man_, stand in compet.i.tion with that _superior property_ which every man must necessarily be allowed to have in his own _proper person_.
How then is the slave-holder to secure what he esteems his _property?_ Perhaps he will endeavour clandestinely to seize the supposed slave, in order to transport him (with or without _his consent_) to the colonies, where such 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 severe penalties of the law, for a bill of sale may certainly be included under the terms expressed in the Habeas Corpus act, 12th Sect. viz. ”_Any warrant or writing for such commitment, detainer, imprisonment, or transportation,” &c._ It is also dangerous for a counsellor, or any other person _to advise_ (see the act ”shall be advising”) such proceedings, by saying, ”_That a master may legally compel him_ (the slave) _to return again to the plantations_.” Likewise an attorney, notary-public, or any other person, who shall presume to draw up, negotiate, of even to witness a bill of sale, or other instrument for such commitment, &c. offends equally against the law, because ”_All, or any person or persons, that shall frame, contrive, write, seal, or countersign any warrant or writing for such commitment, detainer, imprisonment, or transportation; or shall be advising, aiding, or a.s.sisting in the same, or any of them_,” are liable to all the penalties of the act. ”_And the plaintiff, in every such action, shall have judgment to recover his treble costs, besides damages; which damages so to be given shall not be less than five hundred pounds_;” so that the injured may have ample satisfaction for their sufferings: and even a judge may not direct or instruct a jury contrary to this statute, whatever his private opinion may be concerning property in slaves; because _no order or command, nor no injunction_, is allowed to interfere with this _golden act of liberty_.
--I have before observed, that the general term, ”_every alien_,”
includes _all strangers whatsoever_, and renders them _subject_ to the King, and the laws, during their residence in this kingdom; and this is certainly true, whether the aliens be Turks, Moors, Arabians, Tartars, or even savages, from any part of the world.--Men are rendered obnoxious to the laws by their offences, and not by the particular denomination of their rank, order, parentage, colour, or country; and therefore, though we should suppose that any particular body of people whatsoever were not known, or had in consideration by the legislature at the different times when the severe penal laws were made, yet no man can reasonably conceive, that such men are exempted on this account from the penalties of the said laws, when legally convicted of having offended against them.
Laws calculated for the moral purpose of preventing oppression, are likewise usually supposed to be everlasting, and to make up a part of our happy const.i.tution; for which reason, though the kind of oppression to be guarded against, and the penalties for offenders, are minutely described therein, yet the persons to be protected are comprehended in terms as general as possible; that ”_no person who now is, or hereafter shall be, an inhabitant or resiant in this kingdom_,” (see Habeas Corpus act, Sect. 12th) may seem to be excluded from protection. The general terms of the several statutes before cited, are so full and clear, that they admit of no exception whatsoever; for all persons (Negroes as well as others) must be included in the terms ”the subject;”--”_no subject of this realm that now is, or hereafter shall be, an inhabitant, &c. any subject; every such person_;” see Habeas Corpus act. Also _every man_ may be _free_ to sue, &c. 20th Edward III. cap. 4. and _no man, of what estate or condition that he be_, shall be taken or imprisoned, &c. True justice makes no respect of persons, and can never deny, to any one that blessing to which all mankind have an undoubted right, their _natural liberty_: though the law makes no mention of Negroe slaves, yet this is no just argument for excluding them from the general protection of our happy const.i.tution.
Neither can the objection, that Negroe slaves were not ”had in consideration or contemplation,” when these laws were made, prove any thing against them; but, on the contrary, much in their favour; for both these circ.u.mstances are strong presumptive proofs, that the practice of importing slaves into this kingdom, and retaining them as such, is an innovation entirely foreign to the spirit and intention of the laws now in force.
--Page 79. A toleration of slavery is, in effect, a toleration of inhumanity; for there are wretches in the world who make no scruple to gain, by wearing out their slaves with continual labour, and a scanty allowance, before they have lived out half their natural days. It is notorious, that this is too often the case in the unhappy countries where slavery is tolerated.
See the account of the European settlements in America, Part VI. Chap.
11. concerning the ”_misery of the Negroes, great waste of them_,” &c.