Contingencies of the Writ
While the strategies devised by the early abolitionists to advance their repreÂsentative claims on behalf of enslaved Africans and the collective â€?rights of humanity’ appear well-reasoned on a legal basis, it is clear that these claims went beyond the capacity of the habeas corpus procedure, or Lord Mansfield’s ruling in Somerset, to guarantee them.
By studying two further cases demonÂstrating the limitations of a procedural path toward overthrowing slavery and imprisonment for debt, we can better grasp both the high expectations that petitioners and activists attached to habeas corpus, and the multiple obstacles in the way of their efforts. For Thomas Lewis and James Somerset, held captive on the ship that was to return each of them to enslavement in the West Indies, the arrival of the writ of habeas corpus on board was a matter of the highest urgency - if the writ had arrived too late, they would have been returned to slavery with all its cruelties. This contingency and potential for failure are highÂlighted in Olaudah Equiano’s account of his effort to use a writ of habeas corÂpus to rescue a friend and recaptured former slave in chapter ten of The InterÂesting Narrative of the Life of Olaudah Equiano, or Gustavus Vassa, the African (1789). Equiano’s spiritual autobiography, one of the earliest examples of the slave narrative genre, also became a bestselling early abolitionist publication[1014] Several years subsequent to his manumission via his purchase of his own freeÂdom in July 1766, and after his return from his voyage to the North Pole in the previous year, Equiano signed on in the spring of 1774 (less than two years after the Somerset decision) as steward on a merchant ship set to voyage to Smyrna in Turkey. Equiano recommended as cook â€?a very clever black man', John Annis, who had â€?parted by consent' from the service of Mr. William Kirkpatrick of St. Kitts.[1015] After serving for two months on board the ship in London while it preÂpared for its voyage, Annis was seized, tied up, and kidnapped on Easter MonÂday, 4 April, by Kirkpatrick and six men in two boats. When the first mate and captain failed to intervene, Equiano writes, â€?I proved the only friend he had, who attempted to regain him his liberty if possible, having known the want of liberty myself'.9[1016]Equiano first sought the ship to which Annis had been carried for transporÂtation back to the West Indies, but â€?unluckily she had sailed the first tide after he was put on board'. Nevertheless, he acted quickly against Kirkpatrick before he could depart for Scotland by obtaining a writ of habeas corpus. In order to make possible the court officer's service of the writ to Kirkpatrick, who had hired an impersonator and was in hiding, however, Equiano reports that â€?I whitened my face, that they might not know me, and this had its desired effect', enabling him to spy undetected, and to direct the tipstaff to enter the house and serve the writ at a moment when Kirkpatrick was receiving a guest. HowÂever, Kirkpatrick's plea before the judge was â€?that he had not the body in cusÂtody, on which he was admitted to bail'.9[1017] Equiano next sought advice from â€?that philanthropist, Granville Sharp, Esq. who received me with the utmost kindness, and gave me every instruction that was needful on the occasion', renÂdering him hopeful of success. But, Equiano reports, â€?alas! my attorney proved unfaithful; he took my money, lost me many months employ, and did not do the least good in the cause: and when the poor man [Annis] arrived at St. Kitts, he was, according to custom, staked to the ground with four pins through a cord, two on his wrists, and two on his ancles [sic], was cut and flogged most unmercifully, and afterwards loaded with irons about his neck'. Annis later died from this severe punishment[1018] Equiano had obtained the writ, but the necessity for his clever â€?whiteface’ disguise and his counsel’s negligence sugÂgest both his disability as a black legal client and the potential of the remedial process to miscarry or be resisted.[1019] But these adverse circumstances, foreseen by Equiano, did not discourage his attempt to obtain his friend’s freedom, as Sharp and his colleagues had done successfully for Lewis and Somerset.
A contemporaneous instance of prisoners construing the habeas corpus acÂtion as a means to claim a collective remedy shows that the abolitionists’ legal strategy, resting on both constitutional and natural rights and litigating for slaves collectively by means of habeas corpus, was not unique, while also reÂvealing the existence of certain restrictions on the habeas corpus remedial juÂrisdiction. In 1770-71, a group of insolvent debtors held indefinitely in the King’s Bench prison launched a campaign to question the legitimacy of their incarceration. One of the leaders of this effort, a Scotsman and estate steward named James Stephen, who had been committed to prison in August 1769, obÂtained a writ of habeas corpus in order to cause himself to appear before King’s Bench to demand an account of the statutory and legal basis of his detention[1020] Like Granville Sharp, Stephen had not been educated in the law; instead, he conducted his independent legal research while incarcerated. The results apÂpeared in the form of two publications in 1770 asserting the unconstitutionalÂity of incarceration for debt. Stephen appealed to King, Lords, and Commons to uphold the â€?liberties’ and â€?immunities’ granted under Magna Carta but deÂnied unlawfully to imprisoned insolvents, since English courts have refused to afford them relief[1021] The insolvents took out a writ of habeas corpus three sepÂarate times in order to facilitate collective litigation, which they termed â€?a haÂbeas corpus with one of their body’, with Stephen as their representative beÂfore Lord Mansfield and the other judges of King’s Bench, in hopes of liberating the entire class of non-criminal insolvent debtors by means of the writ’s scruÂtiny of the lawfulness of their detention, and on the basis that â€?The common law gave no power to our creditors over our bodies, nor do we think any statute ever did’[1022]
Each of their attempts, however, was unsuccessful, in part due to Stephen's lack of legal counsel.
Of his second failure, Stephen writes â€?Let humanity deÂcide whether [the judges of King's Bench] should have suffered the poor prisÂoners to put themselves to such expence, depending on their promises, and after all deny them the least satisfaction'.[1023] [1024] Throughout his tract, Stephen also claims to act not only on behalf of his fellow insolvents but also to represent â€?the lower class of people' who â€?are equally entitled to personal safety with the highest, yet they have hitherto been only nominally partakers of freedom, for their state and condition has been too low to command an enforcement of the immunities which have been granted to them'.99 Stephen thus widens the sphere of representative claims of his habeas suits toward the constitutional rights of the larger social class of the poor (in ways very similar to Sharp's arguÂment that enslaved Africans have a â€?just right to the King's protection' under the Habeas Corpus Act).[1025] But Stephen does not seem to have been aware, or decided to ignore the fact, that an entire category of non-criminals, including insolvent debtors, had in fact been excluded in Section vιι, a â€?Proviso respectÂing Persons charged in Debt, &c' (and annexed to the original 1679 Act in a separate schedule), stipulating that that anyone who successfully obtained reÂlease under the statute for a criminal offence must remain in prison if he had been detained as a debtor or in another civil suit.101 This exclusion may have applied in particular to Stephen and the collective â€?body' of King's Bench debtÂors he sought to represent, because they were prisoners of the high court itself. Indeed, their appeals to the court's â€?humanity and justice' were met with instiÂtutional indifference because its remedial jurisdiction was effectively colÂlapsed into a supervisory penal role. The prison was an extension of the King's Bench; the insolvent debtors' jailers presided there. When a third habeas acÂtion in the Court of Common Pleas was undertaken by the prisoners, Stephen presented himself before the court only to hear from the justices that as no criminal charge had first been aired in Common Pleas, the court could offer no relief. Even his counterclaim, that â€?by the habeas corpus act every judge had a power to set free any that was illegally confined', could be ignored.ω2 His effort to leverage proceduralism on behalf of all insolvent debtors failed. The propÂerty interests enjoyed by creditors therefore prevailed over the natural interÂests in freedom and personal security enjoyed by debtors. The King’s Bench habeas jurisdiction could not be expected to scrutinise the legality of its own power to detain, for no other court would venture to do so. This incident proÂvides an analytical lens on the institutional and social impediments and statuÂtory constraints facing any group of petitioners to an English common law court in the late eighteenth century who hoped for a representative determiÂnation upholding the natural rights of the poor and oppressed by means of a habeas corpus action.5