Neither Fugitive nor Free

Atlantic Slavery, Freedom Suits, and the Legal Culture of Travel

Edlie L. Wong

• Publisher: NYU Press
• Year: 2009
• ISBN:
  9780814794654
• Topic: Letteratura
• Subtopic: Critica letteraria nordamericana

Neither Fugitive nor Free draws on the freedom suit as recorded in the press and court documents to offer a critically and historically engaged understanding of the freedom celebrated in the literary and cultural histories of transatlantic abolitionism. Freedom suits involved those enslaved valets, nurses, and maids who accompanied slaveholders onto free soil. Once brought into a free jurisdiction, these attendants became informally free, even if they were taken back to a slave jurisdiction—at least according to abolitionists and the enslaved themselves. In order to secure their freedom formally, slave attendants or others on their behalf had to bring suit in a court of law.

Edlie Wong critically recuperates these cases in an effort to reexamine and redefine the legal construction of freedom, will, and consent. This study places such historically central anti-slavery figures as Frederick Douglass, Olaudah Equiano, and William Lloyd Garrison alongside such lesser-known slave plaintiffs as Lucy Ann Delaney, Grace, Catharine Linda, Med, and Harriet Robinson Scott. Situated at the confluence of literary criticism, feminism, and legal history, Neither Fugitive nor Free presents the freedom suit as a "new" genre to African American and American literary studies.

1

Emancipation after “the Laws of Englishmen”

[I]t is the very end and scope of the Constitution, to hold inviolable, and to secure to every British subject;—so that no Man can be a Slave in England.

—Charles Edward Herbert Orpen, “The Principles, Plans, and
Objects, of ‘The Hibernian Negro’s Friend Society,’”
8 January 1831

Charles Orpen’s words form the epigraph to this chapter not, as one might expect, for their philosophical originality but rather for so plainly expressing what had become a “universal admission” of popular British antislavery in the heady years preceding West Indian emancipation.¹ Orpen, one of the self-professed “Directors” of the Dublin-based Hibernian Negro’s Friend Society, published the organization’s political objectives in an open letter to Thomas Pringle, secretary of the London Anti-Slavery Society.² Frustrated with the ever-receding horizon of West Indian emancipation, Orpen sought to distinguish his recently established Irish men’s organization from the metropolitan Anti-Slavery Society, insisting in the words of Elizabeth Heyrick’s 1824 pamphlet on “Immediate Not Gradual Abolition.” England may have transformed itself into a moral exemplar among nations in the crusade to suppress the slave trade after 1807, yet it continued to condone slavery in its colonial territories. Heyrick minced no words when she condemned the earlier campaign as a decided failure: “It is now seventeen years since the Slave Trade was abolished by the Government of this country—but Slavery is still perpetuated in our West India Colonies, and the horrors of the Slave Trade are aggravated rather than mitigated.”³ This notion of a failed political present was fundamental to the way British abolitionists reconstructed their pasts and anticipated a transformed future.⁴ They reenergized debates over black freedom as they questioned why the government had not yet proposed “a final date, however distant, to slavery in the British colonies.”⁵

The Hibernian Negro’s Friend Society differed with its London counterpart over what the project of freedom should entail, yet they both called on a humanitarian tradition that reached back to the previous century to illuminate their political present. Against the specter of lawlessness that colonialists promulgated as the inevitable consequence of West Indian freedom, these societies advocated for a “lawful liberty” that had become part of the very warp and weft of British national identity. The “natural love of liberty,” as William Wilberforce proclaimed, “has been increased from . . . acquaintance with British laws.”⁶ This rhetoric of a uniquely British humanitarian tradition upheld by the rule of law harked back, in Orpen’s words, to the “line of procedure . . . so successfully pursued by the illustrious Granville Sharp, whereby he established the memorable legal position, that every man, who touches English ground, is free.”⁷ Statements of this kind mythologized Sharp’s agency in the landmark civil case Somerset v. Stewart—or correctly, England, The King v. James Somerset (1772)—tried before Lord Chief Justice Mansfield of the Court of King’s Bench, the highest commonlaw court in England.⁸ In 1808, Thomas Clarkson distinguished Sharp as “the first labourer . . . in the cause,” and later writers attributed the emergence of a distinctively British “love” of freedom to his early humanitarianism.⁹ By 1831, the rallying cry of “no Man can be a Slave in England,” according to Orpen, had become “the very basis and elements of our fundamental laws,” as it marked the wide acceptance of abolitionist sentiments that had once been the preserve of only a few men.¹⁰

Antislavery organizations with differing “principles, plans, and objects” hailed Sharp’s victory in Somerset v. Stewart as evidence of freedom as a British cultural inheritance. Christopher Brown argues that Clarkson “was the first to characterize the campaign as the working out of impulses deeply embedded in the society from which it emerged, as the . . . expression of a distinctively British devotion to liberty and the rule of law.”¹¹ Antislavery print culture shaped the narratives of nation and empire as metropolitan abolitionists actively remade the past according to their desires. Clarkson’s invention of an antislavery tradition in his voluminous History of the Rise, Progress, and Accomplishment of the Abolition of the African Slave-Trade by the British Parliament (1808) was firmly established by the first meeting of the London Anti-Slavery Society in 1824, when the young Baptist Noel lauded the membership for “emulating the great examples which have been set us by men dear to our hearts; and who, having begun the mighty struggle before some of us were yet in being, have continued to this day to maintain it with undiminished energy and effect.”¹² The fact that Mansfield’s decidedly terse pronouncement in Somerset did not declare slavery unlawful within England did not hinder it from becoming mythologized as an “origins story” in the “history of Anti-slavery ideology.”¹³

By the 1820s, it was not unusual for humanitarians to transform the purposively limited scope of Mansfield’s ruling to broad effusions: “There is freedom in the respiration of its air, and in the very contact of its soil!”¹⁴ The Anti-Slavery Society even promoted the salutary effects of English habitation on people with significant West India interests as it drew attention to the differences between the “many enlightened West Indians residing in England, and the great body of planters, agents, managers, and overseers, who form the White population of the Colonies.”¹⁵ Later figures such as Orpen, Pringle, and Joseph Sturge exported this territorialized discourse of freedom in countless legislative petitions, lectures, pamphlets, circulars, appeals, addresses, slave narratives, and polemics against West Indian slavery.

Mansfield’s ruling in Somerset also exerted a powerful influence over antebellum American law and letters, giving rise to a poetics of freedom that was widely embraced by abolitionist campaigns on U.S. soil. Fugitive slaves including Henry Box Brown, John Brown, William Wells Brown, William and Ellen Craft, Frederick Douglass, Moses Roper, and others fleeing the 1850 Fugitive Slave Act found refuge and “true” freedom on British soil. Martin Delany effused in his famously unfinished novel Blake; or, The Huts of America (1859–61): “How sublime the spectacle of the colossal stature (compared with the puppet figure of the Judge of the American Supreme Court), of the Lord Chief Justice when standing up declaring to the effect: that by the force of British intelligence, the purity of their morals, the splendor of their magnanimity, and the aegis of the Magna Charta, the moment the foot of a slave touched British soil, he stood erect, disenthralled in the dignity of a freeman, by the irresistible genius of universal emancipation.”¹⁶ This “invented tradition” of British freedom was to become a central feature in the cultural imaginary of the transatlantic antislavery campaign.

A number of figures from the literary and legal histories of the early black Atlantic—including Quobna Ottobah Cugoano, Olaudah Equiano, Grace Jones, Joseph Knight, Mary Prince, and James Somerset—found this freedom to be far more elusive. The ambiguous legal status of these slaves, who arrived on England’s shores as unwaged servants, forced jurists, antislavery humanitarians, and political commentators to confront the problem of freedom as they sought to secure England’s national boundaries. Servants constituted one of the largest groups of African-descended slaves in England prior to 1807, as traveling or absentee planters and officials brought enslaved body servants, nurses, waiting maids, and barbers to the British Isles.¹⁷ Once in the metropole, these slaveholders from England’s far-flung colonies found it increasingly difficult to maintain control of their human property, given the dearth of slave laws. Some slaves petitioned for wages to certify their free status, while others simply ran away in the absence of a fugitive slave law.¹⁸ Edward Long, an ardent advocate of colonial slaveholding interests, observed that “the owners of Negroes, brought hither upon motives of absolute necessity, for want of other attendants in the voyage, have frequently endeavored to send them back, and have as often been defeated, by the quirks of Negroe solicitors, and the extra-judicial opinions of some lawyers,” who exploited a mere oversight in England’s laws since a “Negroe running away from his master here is not by statute declared liable to imprisonment for any such offence.”¹⁹ Unlike the West Indies, where the law explicitly enforced the slave’s obedience and subordination to the slaveholder’s will, England had no positive laws for the control of slave populations.²⁰ Colonialist ideologues such as Long insisted that this legal deficiency did not make slaves into free subjects. Legal disputes over the status of these enslaved servants grew more numerous after 1770 as antislavery interests began to invest the geopolitical “line” dividing English from colonial jurisdictions with ideological meaning.²¹ Did travel or residence on English soil remake colonial slaves into free British subjects? The anomalous status of slaves in England brought public pressure to bear on the meaning of British freedom well before abolition became a legislative issue.²²

Mansfield’s judgment in Somerset did not fully resolve the status of slaves in England, despite the popular imagination of the case in antislavery print culture. The question returned in different guises to worry the English courts. Indeed, the elaborate judgment of Justice Stowell of the English High Court of Admiralty in the Case of the Slave Grace, or The King v. Allan (1827), restricted further the narrow compass of Mansfield’s ruling and powerfully reanimated public controversies over “slaves in England.” Enslaved servants continued to challenge the logic of freedom in profound ways, as English courts began with Grace to curtail the protections once extended them in England. Abolitionists viewed the failure of English law to secure Grace’s freedom some fifty years after Somerset as a decisive check on the moral and political progress toward emancipation that the previous generation of campaigners had supposedly secured in Somerset v. Stewart. The Hibernian Society, for example, sought to ascertain “what measures would make it impossible, to reduce again to Slavery, (as is the present illegal law and practice,) a Negro, who had become free, by visiting England, and afterwards had returned to the Colonies.”²³

Following Grace, Pringle and other abolitionists began to construct narratives of legal failure in the effort to reenergize the flagging campaign for West Indian emancipation, insisting that a better, more progressive future lay just beyond the horizon of the failed present. That refrain was not uncommon among the more radical abolitionists such as Heyrick who faulted the earlier campaign for failing to secure universal freedom. This chapter explores how the popular campaign both absorbed and responded to the contradictions produced in its endeavor to make law and legal process responsive to the contingencies and constraints of freedom. Stowell’s judgment marked the failure of English law to secure freedom, and it began to unravel what had become one of the deeply held “origin stories” of popular antislavery ideology. In the wake of Grace, the antislavery print campaign emphasized the law’s failure to do certain kinds of epistemological work, pressuring Parliament to legislate immediate emancipation by focusing on the West Indian slaves whom the law had failed. These personalized accounts emphasized the failure of English and colonial laws, in the words of the West Indian apprentice James Williams, to “do justice.”²⁴

Abolitionists seized on the legal struggles of West Indian slaves such as Grace Jones, Mary Prince, and Ashton Warner to dramatize the encroachment of colonial slavery on free English soil. The largely unsuccessful efforts of these enslaved men and women to claim and use their freedom in specific ways intensified the political tensions between an increasingly liberal metropole invested in notions of personal freedom and its slave colonies.²⁵ As the pages of the Anti-Slavery Reporter stressed the law’s failure to secure justice for those most in want of it, abolitionists transformed the question of geopolitics into the threat of a degenerate colonial periphery encroaching on Britain’s moral center.²⁶ The rest of the chapter explores the terms of black freedom and the unexpected predicaments that the law of freedom created in the lives of enslaved people in Britain. Legal discourses circulating in transatlantic antislavery print culture constituted their agency and subjectivity in complex ways, and Somerset v. Stewart and Case of the Slave Grace provide two particularly rich moments of discursive emergence and transformation within antislavery print culture. An abolitionist counternarrative begins to emerge from the popular slave autobiographies—Mary Prince, Ashton Warner, Robert Wedderburn, and James Williams—that were produced primarily for the antislavery campaign. While examining the legal freedom that abolitionists hoped to bestow on these enslaved men and women and the freedoms that they sought to fashion for themselves, this chapter rereads the antislavery archive to explore what was made illegible by that campaign’s interpretative frameworks and political imperatives.

That “Fantastic Idea of English Liberty” in Somerset v. Stewart

I don’t know what the consequences may be, if the masters were to lose their property by accidentally bringing their slaves to England. I hope it never will be finally discussed; for I would have all masters think them free, and all Negroes think they were not because then they would both behave better.

—Lord Mansfield, quoted in Prince Hoar,
Memoirs of Granville Sharp, 1828

Slaveholding on English soil became a matter of serious public controversy in the 1760s and 1770s as the growing number of enslaved servants in the metropolis became an issue of criminal concern. Sir John Fielding made a number of revealing observations on this “troublesome and dangerous” population of black slave attendants in Britain. He cautioned against the “dangerous” practice of importing West Indian slave attendants in his editorialized distillation of the voluminous English criminal code: these slaveholders “bring them to England as cheap Servants,” but they “no sooner arrive here, than they put themselves on Footing with other Servants, become intoxicated with Liberty, grow refractory.”²⁷ Such oft-reiterated expressions from the metropole cast black emancipatory desire as the artificial consequence of English habitation, in a twofold gesture that made freedom coextensive with Great Britain and naturalized the servile condition of enslaved blacks.

The freedom...