The Sources of Anti-Slavery Constitutionalism in America, 1760-1848
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The Sources of Anti-Slavery Constitutionalism in America, 1760-1848

William M. Wiecek

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eBook - ePub

The Sources of Anti-Slavery Constitutionalism in America, 1760-1848

William M. Wiecek

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About This Book

This ambitious book examines the constitutional and legal doctrines of the antislavery movement from the eve of the American Revolution to the Wilmot Proviso and the 1848 national elections. Relating political activity to constitutional thought, William M. Wiecek surveys the antislavery societies, the ideas of their individual members, and the actions of those opposed to slavery and its expansion into the territories. He shows that the idea of constitutionalism has popular origins and was not the exclusive creation of a caste of lawyers. In offering a sophisticated examination of both sides of the argument about slavery, he not only discusses court cases and statutes, but also considers a broad range of "extrajudicial" thought—political speeches and pamphlets, legislative debates and arguments.

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Information

Publisher
Cornell University Press
Year
2018
ISBN
9781501726460
Topic
History
Subtopic
North American History
Index
History

CHAPTER 1

The Ambiguous Beginnings of Antislavery Constitutionalism: Somerset

Americans, for better or worse, are a peculiarly legalistic people. Moral or ideological pressures alone, divorced from secular legal considerations, would not have accounted for the potency of antislavery in the United States. But slavery was, among other things, a legal institution, and attacks on its legitimacy were especially congenial to the American temperament. Abolitionists struck one of their most telling blows when they asserted that slavery had been established in America in violation of natural law, the common law, and the constitutional order of the British colonies.
The documentary bases of this legal attack were threefold: the Declaration of Independence, the constitutive documents of the American states and nation, and Somerset v. Stewart (1772), a decision handed down by William Murray, Lord Mansfield, Chief Justice of King’s Bench, the highest common-law court in England.1 Read strictly and technically, the holding of Somerset was limited to two points: a master could not seize a slave in England and detain him preparatory to sending him out of the realm to be sold; and habeas corpus was available to the slave to forestall such seizure, deportation, and sale. But Mansfield’s decision, as reported by the young English lawyer Capel Lofft, contained utterances that imbued the holding with a much broader significance. As interpreted by American abolitionists and others, Somerset seemed to be a declaration that slavery was incompatible with natural law and that, in the Anglo-American world, it could legitimately exist only if established by what Mansfield ambiguously termed “positive law.”
Many contemporaries understood Somerset to have abolished slavery in England; a few thought it challenged slavery in the colonies as well. Mansfield’s utterance had a plangent quality, suggesting that slavery was of dubious legitimacy everywhere. Though Mansfield later disavowed the broad implications imputed to Somerset, the decision took on a life of its own and entered the mainstream of American constitutional discourse. It furnished abolitionists with some of the most potent doctrinal weapons in their arsenal; even slave-state jurists at first accepted its antislavery premises and then later worked out a justification of slavery, as it were, around or in spite of Somerset. The case therefore became a cloud hanging over the legitimacy of slavery in America, a result that would have surprised Mansfield.
The long-continued existence of slavery anywhere in the world would sooner or later have presented problems to be resolved by English jurists, but the fact that Englishmen commanded slavers by the mid-sixteenth century and soon peopled English New World colonies with African slaves made the intrusion of such problems into English jurisprudence only a matter of time. When English courts did begin taking cognizance of slavery cases in the seventeenth century, they turned up an array of novel questions that had to be resolved by the familiar forms of the common law, with little guidance from Parliament or the Privy Council.
  1. Could A “own” B as a slave in England?
    1. What did he own? The body of B? The right to B’s services?
    2. How could the master enforce whatever rights he had?
    3. What was the legal source of A’s claim? There were numerous possible theoretical bases: captivity in war; conviction of crime; voluntary self-sale; sale by the slave’s parents or sovereign; status inherited from a slave parent; sale by the slave’s owner; wrongful force (kidnaping, captivity in an unjust war, rapine, etc.); prescription; custom, either immemorial or recent; Mosaic law or Christianity; positive law, English, English colonial, or foreign, including statutes that regulated the incidents of slave status; the jus gentium; villeinage; implied quasi contract; Roman or civil law as expounded by the continental jurisprudents.
  2. Could A “own” B as a slave in English colonies?
    1. What rights could A or B claim while either or both were in England?
    2. Could the metropolis establish, regulate, or abolish slavery in the colonies? What was the constitutional status of the colonies within the empire?
    3. Did colony slave laws have extraterritorial force? In England? In other English colonies? In non-English jurisdictions?
    4. Were the rights of slaves (or their masters) on English soil varied depending on whether they were: brought there by their master for permanent residence? Temporary residence (sojourners)? Runaways (fugitive slaves)? In transit?
  3. How far would common-law courts recognize the legal incidents of slave status adhering to slaves in England?
    1. What were its essential incidents? Hereditable status? Lifetime slavery? Absolute dominion of the master, except as restrained by positive law? Could the common law accomodate the discipline necessary to slavery?
    2. Did slavery depend on racial distinction? Non-Christian religious status?
    3. Would English courts enforce a contract for the sale of a slave?
    4. Could a slave commit a tort or a criminal act? Could he be the victim of either? Who was responsible for his act or for injury to him, and to whom?
    5. Did the master have rights against third parties who interfered with his control over the slave (as, e.g., by impressment)?
  4. What rights did the slave have?
    1. Juridical capacity as witness or party? Right to own and dispose of property? To make contracts? To marry and control his children?
    2. Could a slave seek a writ of habeas corpus? Could he sue his master in quantum meruit?
  5. Finally, was slavery delegitimated by:
    1. Natural law?
    2. The common law or the habeas corpus statutes?
English precedents on slavery before 1772 suggested several different directions in which the law of slavery might evolve. The early English decisions seemingly accommodated the peculiar legal characteristics of property in slaves to the forms of English law; yet their precedential weight was problematical. Ambiguity and equivocal authority characterized most of the principal English authorities on slavery.
Between 1677, the date of the first reliably reported English decision on slavery, and 1729, when Crown lawyers delivered an authoritative and comprehensive opinion on some of slavery’s legal complications, the justices of King’s Bench handed down seemingly contradictory opinions on slavery’s status under common law. In Butts v. Penny (1677),2 the court acknowledged the existence of property rights in slaves and suggested two possible legitimating origins for slavery: “infidel” status and sale by merchants. But then the court, through Chief Justice Sir John Holt, seemingly reversed Butts in three decisions between 1697 and 1706. Holt rejected the use of forms of action for the recovery of property as an appropriate means for recovering slaves in Chamberlain v. Harvey (1697),3 recommending instead an old form of action used to recover for the loss of a servant’s services. In Smith v. Brown and Cooper (1701),4 Holt stated flatly that “as soon as a negro comes into England, he becomes free; one may be a villein in England, but not a slave.” Yet Holt insisted that a seller might recover for the value of slaves sold. Mansfield later pointed out in Somerset that no English court questioned the validity of a contract for sale of slaves, thus suggesting that at least some features of the law of slavery would be hospitably received in English courts. Finally, in Smith v. Gould (1705–1706),5 an ambivalent effort, the justices declared that Butts was “not law” and that humans cannot be “the subject of property,” yet refurbished old procedural devices to protect the title to a slave acquired by purchase. The English bar was understandably confused by these conflicting holdings, and sought an authoritative resolution of them. They got it in 1729.
One evening over after-dinner wine at one of the Inns of Court, the members solicited Attorney General Philip Yorke and Solicitor General Charles Talbot for their opinions on the effect of baptizing Negro slaves in the plantations. Yorke and Talbot obliged with a joint opinion asserting the following points: (1) a slave coming to Great Britain from the West Indies, with or without his master, is not liberated; (2) the master’s property right in such a slave in Great Britain is not “determined or varied”; (3) baptism does not liberate the slave or change his temporal condition; and (4) “the master may legally compel him to return again to the plantations.”6 Whatever else may be said of this opinion, it was at least unambiguous on the points to which it was addressed. One of its authors, Yorke, enjoyed a high reputation for legal acumen, and the opinion survived long enough to haunt Granville Sharp and provoke him to his first great effort on behalf of the slaves forty years later.
Then Chancery intervened to blur the clarity briefly induced by the Yorke-Talbot opinion. Sensing that the informal circumstances of the opinion’s delivery made it something less than authoritative, Yorke, ennobled and elevated to the woolsack, tried to buttress it in Pearne v. Lisle (1749), a decision he rendered as Hardwicke, Lord Chancellor.7 Sweeping away all Holt’s handiwork through an insupportable construction of Smith v. Brown and Cooper, Hardwicke resurrected Butts v. Penny, saying trover will lie for a Negro slave: “It is as much property as any other thing.” But Hardwicke’s holding was reversed thirteen years later by his successor in Chancery, Lord Chancellor Henley (later Earl of Northington), in Shanley v. Harvey (1762),8 who grandly declared that “as soon as a man sets foot on English ground he is free: a negro may maintain an action against his master for ill usage, and may have a habeas corpus if restrained of his liberty.” These two Chancery decisions had the effect of canceling each other out. Though Hardwicke is esteemed a greater equity judge than Henley, it was the latter who had the later say.
In any event, the highest courts of both common law and equity had spoken on both sides of, and all around, the legal issues of slavery, and their opinions, reported sometimes poorly and always long afterward, were more a matter of oral tradition than of cold print. The judges and counsel before them had canvassed some of the issues presented by the problem of incorporating ownership of man into a legal system that boasted its greatest glory as being in favorem libertatis, but the law of slavery was still unsettled when Granville Sharp challenged slavery in England.
By 1770, some fourteen to fifteen thousand slaves resided in t...

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