In February 1788, Granville Sharp, president of the recently founded Society for Effecting the Abolition of the Slave Trade, wrote to support the activities of his abolitionist counterparts in France, the members of the Societe des Amis des Noirs, just established that year.
Encouraging their efforts, Sharp also affirmed the international ambitions and solidarity of the antislavery movement; he asÂsured the French that he and his associates did not conceive of themselves as acting the part of â€?Englishmen’ only, but rather as â€?citizens of the Universe', for, â€?in truth we consider our plan as encompassing the whole globe, and we will only consider it complete when violence against the rights of humanity ceases everywhere’.[926] Often described by historians as Britain’s first abolitionist, Sharp worked tirelessly from the mid 1760s until his death in 1813 to realise this exÂpansive goal through his many publications, international correspondence with other abolitionists, and persistent personal advocacy directed at Anglican prelates, judicial officers, and government ministers.
Unlike other early aboliÂtionists, such as Thomas Clarkson and William Wilberforce, who decided in the 1780s to pursue abolition of the slave trade as their first strategic goal, Sharp, the devout son of an Archdeacon in the Anglican church and grandson of the Archbishop of York, consistently held that the â€?wicked “System of ColoÂnial Law”’ defended by slaveholders and traders must be abolished without delay as a â€?gross perversion of all the indispensable principles of Natural JusÂtice and Righteousness’ and â€?contrary to the English Constitution’.[927]Koninklijke brill nv, leiden, 2020 | Doi:io.ii63/978900443i249_oi5
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Between 1767 and 1774, Sharp pursued a series of legal cases focused on freeÂing fugitive slaves in England who had been recaptured by their enslavers to be sold in the West Indies, often turning to the legal process of the writ of habeas corpus ad subjiciendum et recipiendum, which enabled courts to adjudicate the legality of an individual’s detention and to free those unlawfully detained.
The most influential of these cases, the Ex parte Somerset (1772) decision on a writ of habeas corpus issued at common law, concerned one such enslaved young man, James Somerset, who had escaped from the supervision of his master, Charles Stewart, in 1771, two years after their arrival in London. William MurÂray, Lord Mansfield, Chief Justice of King’s Bench, granted the writ of habeas corpus used by Somerset’s friends to rescue him from detention on board a ship bound for Jamaica and bring him before the court. â€?So high an act of doÂminion was never in use here; no master ever was allowed here to take a slave by force to be sold abroad...’ declared Lord Mansfield in his famous ruling, â€?therefore, the man must be discharged’.[928] British abolitionists praised the Chief Justice for ruling â€?in behalf of humanity’ and upholding African slaves’ â€?injured human rights’.[929] Careful study of the court records of the Somerset decision and the earlier fugitive slave cases undertaken or observed by Sharp of Jonathan Strong (1767), John Hylas (1768), and Thomas Lewis (1771), along with Sharp’s detailed arguments on the unlawfulness of slavery, reveals the development of the early abolitionists’ legal strategy to employ the procedural form of action of habeas corpus in the cases of individual slaves with the goal of obtaining a decision from an English court declaring slavery illegal in England. The aboliÂtionists’ claim in the 1780s that slavery represented â€?violence against the rights of humanity’, violence that must be pacified across the globe, had been forged in these early English fugitive slave cases, as a result of intellectual movement between natural rights and what they considered to be newly vindicated colÂlective â€?human rights’ that were based equally in common law and the English constitution and demonstrated concretely by means of the remedial jurisdicÂtion afforded by habeas corpus. Rather than simply importing natural rights principles, the abolitionists’ early legal activism conceived the habeas corpus remedy as a potent legal instrument for protecting absolute and universal perÂsonal rights founded in the human body.It is significant that Sharp and the lawyers were very careful to ground their arguments before Lord Mansfield and King’s Bench in these early habeas corpus actions as much as possible on common law rather than continental sources of law. They also had recourse to formulations such as Sir William Blackstone’s in Book I of his Commentaries on the Laws of England (1765-69) upholding the foundations of English law in absolute rights to life; personal security encompassing bodily integrity; and personal liberty, including freeÂdom of movement, stemming from natural law.[930] Prior to the Somerset deciÂsion, Sharp had honed certain prominent legal arguments drawn upon by Somerset’s lawyers in their pleadings before Lord Mansfield. In the earlier cases, the seizure of a fugitive slave by the agents of the former master led to a charge of assault and testimony before the court concerning a violent kidÂnapping for the purposes of deportation and re-enslavement, but the habeas corpus process did not play a central role in the decision and no determinaÂtion on the lawfulness of slavery in England was forthcoming. In Somerset, by contrast, the habeas corpus procedure was pivotal to the ruling. In addiÂtion, invocations of natural rights also played a significant role in giving emÂphasis and focus to abolitionist legal arguments about what kind of constituÂtional and natural rights enslaved Africans shared both with other English subjects and with other members of the human species. Reasoning concernÂing violations of natural rights in respect to the assault and kidnapping chargÂes from the two earlier cases remained implicit, both in certain arguments made by Somerset’s lawyers relating to corporal punishment of slaves in the colonies, and in the background of Mansfield’s decision concerning the legal limits to a master’s authority over a servant in England.
Legal historians have often noted the key procedural elements of the SomerÂset decision that enabled Mansfield’s seemingly narrow ruling on the return to the writ of habeas corpus.
William M. Wiecek has observed that the early EngÂlish cases concerning slavery â€?demonstrate the truth of the old legal adage that the development of substantive law emerges from the interstices of adjective law’, and notes that â€?the result... turned, technically, on issues of common law pleading’, that is, whether the chosen writ or form of action would be adequate to do the work demanded of it by lawyers dealing with an uncommon sort of case.[931] In focusing on the decision in Somerset’s case, George Van Cleve has also highlighted its procedural dimensions as well as the broad imperial implicaÂtions of the way Lord Mansfield â€?conceived of a slave primarily as a person whose legal status was slavery, not as a form of property’. The decision therefore â€?devalued slave property by rejecting slaveowner contentions that slavery had a uniform character throughout the empire, determined by its status as propÂerty under colonial law’.[932] Studying several post-Somerset cases, Ruth Paley has shown that the legal process of habeas corpus could be circumvented and the authority of King’s Bench flouted, concluding that Somerset represented â€?an extremely limited advancement, not an outright declaration that slavery did not exist in England’.[933] She also argues that, â€?For Sharp and the abolitionists, the importance of the Somerset decision lay not in the decision itself, but in what abolitionist publicity and propaganda could make the decision mean’.[934] But the frequency with which the lawyers for Lewis and Somerset drew on Sharp’s early antislavery legal arguments, and the seriousness with which his legal adÂversaries and an eminent jurist such as Blackstone treated his legal research in Jonathan Strong’s case, belie the notion that the legal bearings of the Somerset decision held no importance for the early abolitionists beyond their usefulness as propaganda.[935] [936]In a letter to the American Quaker and abolitionist Anthony Benezet, BenÂjamin Franklin, then residing in London and writing shortly after the verdict in James Somerset’s case, sardonically pointed out â€?the hypocrisy of this country, which encourages such a detestable commerce by laws for promoting the Guinea [slave] trade; while it piqued itself on its virtue, love of liberty, and the equity of its courts, in setting free a single negro’.n Many historians of law and the British Empire have echoed this critique to view the verdict in Somerset as, at best, confirming English law’s ignorance of slavery by carving out an excepÂtion within the general legalization of slavery under colonial laws. A focus on legal exceptionalism, however, does not reveal the generalizing remedial capacities that abolitionist legalism attached to the ruling.
The legal and moral implications concerning natural justice and equity invoked by Somerset’s lawÂyers also represented their efforts to leverage habeas corpus in order to expand the scope of Lord Mansfield’s decision beyond the fate of â€?a single negro’, the inadequate outcome dismissed by Franklin. In Book iii of his Commentaries, Blackstone notes that â€?the oppression of an obscure individual [the radical Whig, Francis Jenks, imprisoned by the Privy Council in 1676] gave birth to the famous habeas corpus act, 31 Car. ii. c. 2 which is frequently considered as anÂother magna carta of the kingdom’.[937] [938] [939] A similar dynamic of generalization and exemplification to the one claimed here by Blackstone was engineered by Somerset’s lawyers, this chapter shows, in order to make the habeas corpus process into a potentially representative action that, while brought on behalf of another obscure individual, could in its broader scope grant a collective form of legal personhood to the enslaved. This factoring up in a representative sense from the individual to the collective through a habeas corpus action also depended upon the strong remedial and imperial jurisdiction of King’s Bench. Paul D. Halliday has demonstrated how seventeenth- and early eighteenthÂcentury habeas jurisprudence, especially under Lord Mansfield, extended the authority of King’s Bench into all the territories and corporations, including colonial corporations, and jurisdictions established by the English sovereign, creating an unusually inclusive â€?singular subject status’?3 â€?By issuing the writ’, Halliday observes in respect of Somerset, â€?King’s Bench fitfully made a new juÂrisdiction for itself; by its judgment, it began - very slightly - to kill off the juÂrisdiction of slaveholders over their slaves, just as it had always contained the jurisdiction of all others who held the bodies of the king’s subjects’?4This chapter studies in detail the key features of this â€?singular subject status’, focusing on the entitlement of the slave’s vulnerable human body to protecÂtion by the common law.
It also shows that the inclusive imperial jurisdiction of habeas corpus enabled Sharp and the abolitionist lawyers to frame the SomÂerset decision as a representative legal action which promulgated new definiÂtions of collective â€?rights of humanity’ that would not be restricted to slavery alone, but could apply to violated rights of all oppressed persons. In his correÂspondence with Anglican prelates and government ministers, Sharp drew on such principles to defend the natural and constitutional rights of many other subordinated subjects and peoples of the British Empire, drawing analogies to indentured and impoverished laborers in Britain and the American colonies, native Caribs expropriated and killed by British soldiers (1772-73) in the newly conquered Caribbean island of St. Vincent, the Irish and the Scottish HighÂlanders, and, as long as they shunned slavery, American colonists demanding representation in parliament.[940] [941]Both the legal arguments on Somerset’s behalf and those in defence of StewÂart’s property rights as a slaveowner displayed several further representative and collective legal, social, and political dimensions that implicated the wider imperial jurisdiction of habeas corpus and King’s Bench, making it a vehicle of imperial reform. First, the case pitted two social groups with opposing interÂests against each other: colonial slaveowners, whose property rights could be invalidated by the decision, and enslaved Africans in England, whose status as human property was at staked6 Second, natural law enters into these antislavÂery arguments by way of the absolute rights of the individual that underpin the common law’s protections of the body from violence and unlawful intrusions on its liberty. Since colonial slavery was notorious for permitting masters to inflict bodily harm on their slaves by way of control and chastisement, upholdÂing one slave’s right to be liberated from his former master’s power by means of habeas corpus meant that the English common law could call the imperial leÂgality of slavery into question, even if temporarily, as an abuse of authority. In this way, the case became a representative one on behalf of, potentially, all enslaved persons in British dominions. Finally, the habeas corpus process proÂvided a means to extract accountability from specific masters who had abused their slaves, whether by some sort of legal penalty or at least by the ignominy accompanying a public trial. In each of these dimensions, the proceduralism of habeas corpus seems to have imposed legal constraints upon those, such as slaveholders, who would normally be empowered by colonial legal and social orders.
This chapter’s analysis of the abolitionists’ fusion of natural law and habeÂas corpus procedure concludes by examining two further contemporaneous cases that place the strategies developed in the early antislavery cases in a comparative context, by showing how procedural misfires and exceptions to the inclusive habeas corpus jurisdiction could undermine the expansive repreÂsentative goals pursued in the legal arena by the abolitionists in Somerset. These less famous cases are Olaudah Equiano's failed attempt in 1774 to rescue his shipmate, John Annis, by means of habeas corpus from deportation back to slavery in the West Indies, as described in Equiano's 1789 narrative of his enÂslavement and freedom; and the unsuccessful appeals by a group of insolvent debtors to gain their release from the King's Bench prison by means of a writ of habeas corpus in 1770. While Equiano's story demonstrates his legal and social disability as a black petitioner for the writ on behalf of another former slave, the case of the insolvent debtors, who also collectively but unsuccessfully inÂvoked their natural and constitutional rights to freedom, reveals certain statuÂtory restrictions on their eligibility for habeas corpus, which normally, accordÂing to Blackstone, â€?if a probable cause be shewn that the party has been imprisoned without just cause', should issue as â€?a writ of right'.[942] Analysis of these incidents provides a concrete way to gauge the limitations of the legal leverage that could be exerted toward the recognition of fundamental â€?human rights' of oppressed groups across the empire by means of a representative habeas corpus action in late eighteenth-century England. Though the restricÂtions on habeas corpus in these cases appear to be based solely in London, by analogy the limitations of common law proceduralism as a check on colonial legal regimes of slavery also come to light. Nevertheless, the representative imÂplications of the Somerset decision achieved a novel, if legally tenuous, aim by means of habeas corpus: the case would have wider political repercussions, not only for the abolitionists' shift in the 1780s to a campaign of public mobiliÂzation toward parliamentary action to abolish the slave trade, but also for their claims that universal human rights of enslaved Africans could be legally recogÂnized on an international basis, despite the protestations of colonial slaveholdÂers and the imperial toleration of human property.
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