AN APPENDIX TO THE REPRESENTATION, (Printed in the Year 1769,) OF THE Injustice and Dangerous Tendency of Tolerating Slavery, or of Admitting the least Claim of Private Property in the PERSONS of MEN in ENGLAND.
BY GRANVILLE SHARP.
LONDON: PRINTED FOR BENJAMIN WHITE, (NO. 63.) IN FLEET-STREET, AND ROBERT HORSEFIELD, (NO. 22.) IN LUDGATE-STREET.
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AN APPENDIX TO THE REPRESENTATION, &c.
SINCE the Publication of my Book on
the Injustice and dangerous Tendency of Tolerating Slavery in England,
several unforeseen circumstances ha
e obliged me to consider that subject more strictly, in order to obviate the insinuations of some interested Persons, who still endeavour to inculcate and maintain, even in this Island, the ungenerous West Indian Notions concerning property in Slaves.
Upon these dangerous princip
several violent Outrages have lately been committed for the recovery of such pretended property; and several Negroes have been knocked down and kidnapped by Ruffians, hired for that purpose, and have been hurried on Ship Board in order to be transported to the West Indies, in open Contempt of the English Laws, and of the Habeas Corpus Act in particular, which denounces heavy Penalties against those who attempt to transport
any Person whatever
from this Kingdom against their Will: for I have shewn in my former Treatise in Pages 20 to 28 that Negroes, and all other Aliens are the
King's Subjects,
when resiant in this Kingdom; and that they are entitled to the Protection of the English Laws in general, and of the Habeas Corpus Act in particular. The same Arguments are further inforced in Pages 152 to 159.
In Pages 136 to 146 of the same Book will be found a full Answer to such Arguments as had then been offered, concerning
any right which the Master may have acquired to the perpetual service of a Man;
and in Pages 163 and 164 it is (I hope) demonstrated that the Service of
a Slave
cannot justly be compared to the Service of
an Apprentice;
and that
a Contract
cannot be
implied
in such a Case, as some learned Men have insinuated.
In the fourth and last Part of the said Tract the Doctrines of
Villenage
are shewn to be
obsolete,
so that the least Claim of
perpetual Service,
cannot be justified thereby.
These References to my former Work are inserted here, partly to avoid a recapitulation of these necessary points, and partly, that those, who have any concern at present in such matters, may thereby be enabled to consider and examine these several Heads without the trouble of reading the whole Book; which is not so compendious as the Author could wish, it having been wrote at several different Periods, as occasion offered, and new Arguments were opposed, during the time that an Action (which was shamefully prolonged) depended against the Author and one of his Brothers, for having accidentally (not officiously) assisted a poor Negro Servant who was kidnapped and confined in the Poultry Compter without a Warrant, and there sold to a West-India Planter to be transported to Jamaica.
It has already been proved, in the places before referred to, that
no right whatever
can be acquired to
the perpetual Service of a Man
without a
Contract,
and that such a
Contract
cannot be
implied,
unless the free Consent of both Parties is
implied
likewise, and clearly proved. Nevertheless as some sordid and tenacious Contenders for this kind of imaginary Property are still so inconsiderate as to risque all the Penalties of a
Premunire,
besides heavy Fines, by venturing to seize and carry away by force their quondam Slaves, I am willing for the present to admit their
Plea of Private Property
merely that I may examine the Weight of it, and balance it with the Negroes
Property in his own Person,
which, in a Land of Justice, doth equally demand some share of our Consideration.
The Authors and Abettors of the scandalous and Inhuman Outrages of which I complain, cannot possibly ground their Defence on any other Point whatsoever, than this single Plea
of private Property,
and the necessary obligation of the Courts of Justice to
secure to every Man his own.
Now if a Negro Man, or any other human Being whatever, is considered as
property
in this Country, he falls under the Head of
Chattels
and must necessarily (so far I mean as the Master's right ought to be considered) be ranked under that denomination.
Now A CHATTEL is
"res estimabilis;"
a thing to be valued; a thing merely of a
pecuniary
consideration; and the Slaveholder, accordingly, rates his supposed Property in
a Man
at
a base price,
not more, upon an average, than the value of
a good Horse,
viz. 30
l.
40
l.
or 50
l. to the disgrace of human nature:
whereas, on the other hand, the Negro (though considered as
a Chattel
with respect to the Master's claim, yet being himself, also,
a Man
) has certainly a superior right and title to
his own Person;
a claim
of natural Property
in himself, which is
inestimable;
far above all
pecuniary
consideration; for, with respect to
his side of the question,
THE HUMAN BODY IS ABOVE ALL PRICE,
Corpus humanum non recipit aestimationem.
Principia Legis & Aequitati', p. 14.
Surely
his Liberty
to him is
inestimable!
—at least, the
English
Law presumes that it is so.
LIBERTAS EST RES INESTIMABILIS..
Jenk. Cent.
52. Now let the idea of the CHATTEL, even at the highest price it will bear, be weighed and compared with the subject of the last mentioned maxim, and
let Justice hold the scale!
—Shall we doubt whether the
Estimable
claim or
the Inestimable
claim is to be preferred?
The Law regards
the Person
above his
Possessions;
—
Life
and
Liberty most;
—
Freehold
and
Inheritance above Chattels,
&c.
Ibid: p. 56.
—so that
Chattels,
we find, are but of a very inferior consideration, being
ranked only in the third degree.
Law favoureth, Life, Liberty,
and
Dower,
and cannot, therefore, give the preference to the Master's mere
mercenary
claim of
property,
without a manifest contradiction to itself,—
And the Law abhors Falshood, Variance, Contrariety,
&c.
—
Lex Angliae non patitur
ABSURDUM. 9.
Cook.
22.
—
Lex rejicit
PUGNANTIA, incongrua.
Jenk. Cent.
140, 133, 176.
It is true, indeed, that the Law, in this case, may seem to suffer (or permit) a wrong by the Master's losing his supposed right and property; but if we consider, that the admitting
such a Property
would be a want of
Mercy
in the Law, nay, even an act
of Cruelty
(which the Law abhors) towards those persons who have
a superior,
because
a natural interest
in the determination of this question, it must appear to demonstration, that the Law
doth no wrong,
when it rejects the
lesser
claim of
estimable
property, in favour of that
natural interest
which is
inestimable:
And therefore, howsoever the imaginary proprietor may think himself aggrieved, yet the law is vindicated herein, when we consider that every claim
of Property
is absolutely
unjust in itself,
and must necessarily be set aside through
the mercy
of the Law, if it interferes, or is inconsistent with that
natural
and
equitable
claim to
personal security,
which the law of this kingdom hath
always favoured;
for
"the Law of England is a Law of Mercy."
LEX ANGLIAE EST LEX MISERICORDIAE, 2
Inst.
315.
so that each Slaveholder must still be obliged to allow,
that the Law
(even in this unavoidable decision against himself)
doth injury to no man:
—
Lex nemini operatur iniquum.
—
nemini facit injuriam.
Let the Slaveholder remember, also, that his being thus deprived of his imaginary Property, cannot be considered otherwise (let him make the most of it) than merely, as
a private loss;
whereas, if such an
unnatural right
be admitted without due consideration of the superior
Personal Right
of the Negro, a worse Vassalage, than the Ancient Villenage,
The Antient Villenage was long since extinguished through the virtue and continual opposition of the King's Courts in favour of the
Common Law,
which I have elsewhere shewn: so that such another
unjust Tyranny
cannot possibly be admitted, without an apparent violation of the
Common Law.
would in time be introduced into this free Christian Country, by which
the Publick
would
be materially injured,
as well
in Honour,
as
in Morals,
and
National Safety:
therefore,
the Law will rather endure
a particular mischief
(as the loss of private
property) than a general inconvenience.
Lex citius tollerare vult
PRIVATUM DAMNUM
quam
PUBLICUM MALUM. Co.
Lit.
152.
Thus stands the Common Law, with respect to the point in question; and it is not (I apprehend) in the least altered by Statute Law; so that unless the Advocates for Slavery can prove that it is altered, we may safely conclude with the following maxim, that
whatever was at Common Law, ana is not taken away by Statute, remaineth still,
Co. Lit. 115.
I flatter myself, that no Gentleman of the Law will attempt to contradict or set aside the established Maxims which are here quoted, because such a behaviour would necessarily draw upon them that just censure and contempt, which the learned Author
Christopher Seyniarmayne, or St. German, who died in 1539.
of the
Doctor and Student
expresses in his VIIIth
See the English Translation printed in 1746. page 27.
Chapter against all Lawyers,
without exception, to dignity,
that presume to contradict approved maxims.—
The Fourth Ground of the Law of
England
(says he) standeth in divers principles that be called
in the Law, Maxims,
the which have been always taken for Law (SEMPER HABITA ET TENTA SUNT PRO LEGE) in this Realm,
so that it is not lawful for any that is learned to deny them;
for every one of those
Maxims
is sufficient authority to himself.
— Thus far the Translator, but we may gather from the words of the excellent Author himself
See the Latin Edition in 12mo. printed in 1604. page 27.
, that Men, who deny these Maxims
are no longer worthy to be talked with;
—for he adds,
in tanto quod cum negantibus ea
(viz. Maxima)
non est ulterius arguendum
Quartum fundamentum Legis Angliae stat in diversis principiis quae a peritis Legis Angliae MAXIMA vocantur, quae SEMPER HABITA ET TENTA SUNT PRO LEGE in hoc Regno Angliae, quibus NON EST LICITUM ALICUI LEGIS PERITO CONTRADICERE, quia
unumquodque maximorum illorum
est sibi ipsi fides, in tanto quod CUM NEGANTIBUS EA NON EST ULTERIUS ARGUENDUM.
.
A more modern, but not less respectable Author, has furnished us with a Maxim nearly to the same effect,
viz.
Those that forego (or set aside) the Law of the Land, deservedly incur from thence a perpetual stain of Infamy.
—
Legem terrae amittentes perpetuam infamiae notam inde merito incurrunt.
Sir Ed. Cook. IIId. Inst. 221.
Thus the
Plea of private property in the Persons of Men
must necessarily fall to the Ground, when it is measured by the Maxims of the Common Law.
I have not, designedly, done any injustice to this Plea; and, tho' I may, perhaps, have treated my subject injudiciously, and not according to Method, yet I defy the most interested advocate for Slavery to give more real weight or value to such kind of property than what I have already stated, if, at the same time, the Learned Judge Blackstone's arguments concerning the three Origins of Slavery be duly considered.
I have quoted these Arguments at length in my former Tract (from page 141 to 145) but shall, nevertheless, repeat them here and pledge them as unanswerable by the most able Casuist, or even by the Learned Author himself were he to undertake it. But this I speak only comparatively, referring to his great
abilities,
not his
will:
for though I have been obliged to guard against some doubtful expressions in other part of his Works (See my former Tract pages 136 to 141) yet I have too good an opinion of that worthy Gentleman to conceive that he will ever entertain any real inclination for so ungenerous a task.
The three origins of the right of Slavery, (says he) assigned by Justinian, are all of them built upon false foundations. As first, Slavery is held to arise
"jure gentium,"
from a state of captivity in war; whence Slaves are called
mancipia, quasi manu capti.
The conqueror, say the Civilians, had a right to the life of his captive; and, having spared that, has a right to deal with him as he pleases. But it is untrue position, when taken generally, that, by the law of nature or nations, a man may kill his enemy: he has only a right to kill him, in particular cases; in cases of absolute necessity, for self-defence; and it is plain this absolute necessity did not subsist, since the victor did not actually kill him, but made him prisoner. War is itself justifiable only on principles of self-preservation; and therefore it gives no other right over prisoners, but merely to disable them from doing harm to us, by confining their persons: much less can it give a right to kill, torture, abuse, plunder, or even to enslave an enemy, when the war is over. Since therefore the right of
making
Slaves by captivity, depends on a supposed right of slaughter, that foundation failing, the consequence drawn from it must fail likewise. But secondly, it is said, that Slavery may begin
"jure civili;"
when one man sells himself to another. This, if only meant of contracts to serve or work for another, is very just: but when applied to strict Slavery, in the sense of the laws of old Rome, or modern Barbary, is also impossible. Every sale implies a price, a
quid pro quo,
an equivalent given to the seller in lieu of what he transfers to the buyer: but what equivalent can be given for life and liberty, both of which (in absolute Slavery) are held to be in the master's disposal?—His property also, the very price he seems to receive, devolves
ipso facto
to his master, the instant he becomes his Slave. In this case therefore the buyer gives nothing, and the seller receives nothing: of what validity then can a sale be, which destroys the very principles upon which all sales are founded?—Lastly, we are told, that besides these two ways by which Slaves
"fiunt,"
or are acquired, they may also be hereditary:
servi najcunter;"
the children of acquired Slaves are,
jure naturae,
by a negative kind of birth-right, Slaves also. But, this being built on the two former rights, must fall together with them. If neither captivity, nor the sale of one's self, can by THE LAW OF NATURE AND REASON reduce the parent to Slavery, much less can they reduce the offspring.
Upon these principles
THE LAW OF ENGLAND
abhors, and will not endure the existence of Slavery, within this nation:
so that when an attempt was made to introduce it▪
by statute 1 Edward VI. c. 3. which ordained, that all idle vagabonds should be made Slaves, and fed upon bread, water, or small drink, and refuse meat; should wear a ring of iron round their necks, arms, or legs; and should be compelled by beating, chaining, or otherwise, to perform the work assigned them, were it never so vile;
the spirit of the nation could not brook this condition▪
even in the most abandoned rogues; and therefore this statute was repealed in two years afterwards.
Coms. 1. Vol. p. 4
3.
Thus it is clear that there can be no claim of right to
the perpetual Service of a man
which is not ORIGINALLY FOUNDED EITHER IN RAPINE THEFT OR NOTORIOUS INJUSTICE.
For it must be obvious to every person, who is not blinded by the desire of gain,
says the author of a Short Account of the Slave Trade, &c. which I caused to be reprinted in 1768, p. 64)
that the Right, by which these men hold the Negroes in Bondage, is no other than what is derived from those who stole them, who, having no other Title, but that which Robbers have over their Prey could not convey any better to the purchaser; and that therefore to continue to hold them in Bondage, for wordly Advantage, by no other right than that which those guilty men give them, is consenting to, and partaking of their Guilt.
Therefore when a Notorious Outrage and Breach of the Peace is committed under the pretence of any such
groundless claim of service,
the Magistrate who neglects to
relieve
the person oppress'd, and
to punish
the Offenders, is certainly a partaker of their Guilt; and no upright and conscientious Judge (who does not set up his
own will above the laws of the Land
) can possibly entertain any
doubt in his mind
about the punishment of such Offenders: for when the Laws of the Land, and especially the Habeas Corpus Act, are expressly and clearly
on one Side of the Question
(without the least exception whatever concerning any difference or distinction of Persons,) and when the
only plea
on the
other side of the Question
is absolutely without Foundation either in Natural Equity or the established Law and Customs of this Country, what room can there be for
doubt?
and how would a Judge be able to justify an Arrest of Judgment in such a case?
Every Judge is (or ought to be) sworn, that
he will minister Justice indifferently
(or without respect of Persons)
to all Men.
—
Se justitiam ministraturum indifferenter omnibus hominibus.
(Fortescue de Laudibus Leg. Angliae, Chap. 51.) And therefore if the Laws and Established Customs of the land with respect to the present Question make
no distinction of Persons
(whether Bond or Free, White or Black) neither can a Judge, without risquing
the guilt of Perjury.
I have proved in Page 159 of my former Tract,
that the Laws of England (in the late Reign) were esteemed obnoxious to any involuntary Bondage without a just cause, and to all
private jurisdictions whatsoever;
so that
an extension of
THE INFLUENCE,
See the Act of 20 Geo. II. intituled an Act for taking away and abolishing the heretable jurisdictions in that part of Great Britain called Scotland, &c.
BENEFIT AND PROTECTION
of these laws
was considered as a relief to our Fellow Subjects in Scotland from all
private
oppression. I mean the late pernicious
Vassalage
of Scotland; the extinction of which has happily produced the present flourishing State of Arts, Trade, and Manufactories amongst our Brethren in that part of the Island.
But as the claim of
private property in the persons of men
is the very root and foundation of the worst kind of
Vassalage,
I must observe, that, if any Judge should hereafter venture to suspend the execution of the English Laws in consideration of
any such kind of pretensions whatever,
he might be said to stab the constitutional freedom of two Great and ancient Kingdoms at one blow. For how should our fellow subjects at the other end of the Island be able to trust in the parliamentary Promise of the
Influence, Benefit and Protection of the King's Laws
to be
extended
as far as Scotland, if the said Laws were really liable to be rendered
ineffectual,
even in England, by a mere
groundless doubt
of one single Judge.
A
Doubt
is certainly a very insufficient excuse for an
arrest of Judgment,
in any case whatever, unless
"strong and probable Grounds"
are alledged to justify it; but a
groundless doubt
upon the present question would be more particularly criminal; because it would, probably, tend to the introduction of the
diabolical
See a Note in my former Tract, page 153, where this hard Epithet is proved.
Tyranny and Injustice of our West Indian Colonies, whereby
human Nature is vilifyed and degraded to the Rank and level of brute Beasts;
for not only the grossest oppression of our
fellow man
but even
murder
Ibid. page 66 and 67.
is there tolerated, and
Marriage
excluded,
Ibid. page 152.
as I have shewn in the notes to my former work.
Ibid. page 39 to 73. The last of these pages, (73) is now earnestly recommended by the Author to the serious perusal of all persons who have any influence in Government, if they sincerely wish prosperity to England.
Whatever tends to the same point (viz. the
degradation of human nature
and the introduction of that consummate wickedness which must of course prevail
wherever Slavery is tolerated
) does certainly promote the Work and Service of the
Grand Enemy of Mankind,
and consequently ought to be estemed highly offensive to Almighty God.
Some Persons may, perhaps, alledge in vindication of the
supposed doubt
above mentioned, that the Legislature has, at different times, given encouragement to the
African Slave Trade,
(however detestable, and
pernicious to mankind
it may be esteemed) and that the same ought to be accounted an acknowledgment, that
Property in Slaves
is, in some degree,
lawful.
Such Arguments, and Insinuations I have frequently heard, but let the Advocates for Slavery make the most of them they can, yet shall they not be able to avail themselves of any such strained, consequential Doctrines: for suppose that the Legislature should, unwarily, happen to
do wrong
in any particular point whatsoever, and that any one of their Subjects in a judicial character should, instead of giving them warning of
the evil,
be ready to go before them in it, and should even shew himself prone to carry the
mischief
to a much higher pitch, than the
Legislature
ever conceived or intended, by endeavouring to render ineffectually one of their most solemn acts, relating, in some respect, to the same point, which we will suppose to have remained
unrepealed
and
in full force,
and which might therefore have been used as a just and honest expedient to save
the honour
of the
Legislature
and correct the inadvertent
evil.
Such a neglect and contempt of a
positive and established statute,
added to a disregard of
natural as well as national Justice,
ought to be esteemed as a sufficient reason for condemning such a man as
a most undutiful subject, and dangerous Politician.
But, to carry the Argument still further, let us suppose (what I trust will never come to pass) that even the
Legislature itself
should become so miserably degenerate as to repeal, or annul, the Habeas Corpus Act, and adopt, instead of it, the most horrid and diabolical of the West Indian Laws; yet, even in this case, the natural
unlawfulness
and wickedness of such principles as those laws contain, would
still remain;
for
No Legislature on Earth, which is the supreme power in every Civil Society, can alter the Nature of things, or make that to be lawful, which is contrary to the Law of God, the supreme Legislator and Governor of the World. Mischief may be framed, and established by a Law, but if it be, it is mischief still, as much so as it was before it was established, tho' its being so may make Men insensible of their Guilt, or bold and fearless in the Perpetration of it; for too many, among Christians, are, contrary to
Christ
's Exhortation, more influenced by the Fear of Man, than by the Fear of God.—It is really a serious Subject, and I own it raises a serious concern in my Mind, that such Barbarity should be suffered in Christian Nations. It is enough to make a Man's Heart ach, unless he has not lost all Love and Regard to his Kind, to think that so many Thousands of the Human Race should be sacrificed every year to that greedy voracious God
Mammon
Short Account of the Slave Trade, p. 52.
.
The Number of Negro Slaves bought
in one Year only
(viz. 1768) on the Coast of Africa, from Cape Blanco to Rio Longo, amounted to 104, 100 Persons, according to a particular state of that Trade inserted in the Gazetteer of the 8th of July, 1769. These miserable creatures, it is said,
were bought by Barter for European and Indian Goods, chiefly at
15
l. Sterling each.
Now it is dreadful to consider
what multitudes of men
must have been
killed
merely in the attempt to take so many wretched Captives for sale; and again
what multitudes,
out of so large a number, would
die,
as usual, in their passage to the West Indies and America either of Grief and despair, or by being inhumanly stifled in the Holds of Ships; besides the large proportion (nearly one half) that would
die
of the seasoning, (as it is called) after their arrival in the plantations; and lastly that all the remainder of
this vast multitude of
104, 100
miserable human beings
will probably be
worn out
by hard service and oppression in the space of about 16 years, or less, according to the average rate of some calculations that have been published. These considerations, I say, must needs inspire us with indignation and horror even though the evil, at present, is at a considerable distance from us. But if the advocates, for
the unnatural and unlawful claims,
against which I contend, should receive such encouragement as to
confirm their pretensions;
the same must inevitably introduce by degrees a Toleration of the West India Slavery, with all its
direful consequences,
into this Kingdom: which, added to the manifold corruptions and deprav
ties into which this Kingdom has already unhappily fallen, will certainly cause our measure of Iniquity to overflow, and, in all probability, draw down upon us some dreadful and speedy
national
calamity
The Irish at the first Council of Armagh, in the Reign of K. Henry the II. were persuaded (and they had, but too much cause for it) that the miseries, with which their Island was then afflicted, were the
effect of God's Wrath
for their having tolerated Slavery amongst them. See Rapin, 2 Vol. p. 521.
, besides that severe judgment, which is already but too apparent amongst us, I mean that deplorable
Hardness of Heart,
and abandoned
Spirit of Injustice,
which has rendered the publication of this remonstrance necessary.
Old Jewry,
16th
Jan.
1772.
GRANVILLE SHARP.
FINIS.