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

Front matter

The Sources of Antislavery Constitutionalism in America, 1760—1848

The Sources of Antislavery Constitutionalism

William M. Wiecek

Preface

In 1760 the institution of slavery in the British colonies enjoyed undisputed legitimacy. No colonials considered it inherently illegitimate, although some, especially Quakers in the middle colonies, attacked it on moral grounds. By 1848 some American abolitionists contended that slavery was everywhere illegitimate, while a larger number, as well as many nonabolitionists, believed that the federal government could properly restrict the spread of slavery into the territories. In addition, many northerners believed that the free states could repel the intrusion of slavery into their jurisdictions. The passage from the constitutional world of 1760 to that of 1848, with respect to slavery, is the subject of this study.

Antislavery constitutionalism developed from nontechnical, popular origins that lay outside courts and legislatures. Constitutional development was (and is) not a monopoly of a hieratic caste of judges and lawyers. It has its beginnings in the American people, and its first expressions are to be found in documents less formal than decisions and statutes. Alvan Stewart perceived this when he wrote:

The great secret of successful prosecution of the anti-slavery conquest is yet unrevealed, and where revealed is not believed. The simplicity of means is so amazing, men will not believe it. It is the great every-man power, the one-man power, the common-man power, the unlearned-man power. Every honest antislavery man has the power of converting some of his neighbors to our glorious principles, in the next five weeks by talking, by tract, newspaper, or pamphlet.

1. Alvan Stewart, “The Great Every-man Power” (undated), in Luther R. Marsh, ed., Writings and Speeches of Alvan Stewart, on Slavery (New York: A. B. Burdick, 1860), 401 (italics in original).

8 Preface

“Constitutional meaning and protection have to embody and reflect a great deal besides case law,” Howard Jay Graham has said. “Extrajudicial factors have been and are the keys to Everyman’s Constitution.”? This study is an exploration of those extrajudicial factors, the true sources of antislavery constitutionalism in America.

The assistance of many persons and institutions has made this book possible. I received financial aid that supported summer research trips and a sabbatical leave and paid the costs of typing and photocopying from the National Endowment for the Humanities (Younger Humanist Award and summer research fellowship); the University of Missouri-Columbia (grants from the Assistant Professor Research Fund and the Faculty Research Council); the John Carter Brown Library, Brown University; the Newberry Library, Chicago.

Librarians, archivists, and their staffs were always helpful and hospitable. At the University of Missouri-Columbia, Anne Edwards, Betty Ellington Parrigin, and the staffs of the Rare Book Division of Ellis Memorial Library and the State Historical Society of Missouri kindly dug out materials and secured interlibrary loan requests. Other individual librarians who helped were William Ewing, formerly Curator of Manuscripts, and William Joyce at the William L. Clements Library, University of Michigan—Ann Arbor; Thomas R. Adams and Samuel Hough at the John Carter Brown Library; Archie Motley of the Manuscripts Division, Chicago Historical Society; Lawrence W. Towner and Arthur Miller of the Newberry Library; and Marion Brophy at the New York State Historical Association, Cooperstown. Staffs at the following made research trips a pleasure: the Manuscripts Division, Library of Congress; the National Archives; the New-York Historical Society; the New York Public Library; the Manuscripts Division of the Libraries of Columbia University; the Pennsylvania Historical Society; the Boston Public Library; the Massachusetts Historical Society; Houghton Library, Harvard; and the Schlesinger Library, Radcliffe.

The University of Chicago has granted permission to quote from and adapt my article “Somerset: Lord Mansfield and the Legitimacy

2. Howard Jay Graham, Everyman’s Constitution: Historical Essays on the Fourteenth Amendment, the “Conspiracy Theory,’ and American Constitutionalism (Madison: State Historical Society of Wisconsin, 1968), 588.

Preface 9 of Slavery in the Anglo-American World,” originally published in the University of Chicago Law Review. I wish also to record my gratitude to the holders of all archival material cited herein (including that read on microfilm) for permission to do research in their holdings and quote from them.

Colleagues at the University of Missouri-Columbia read parts of this study and provided helpful criticism: Charles F. Mullett, William F. Fratcher, Thomas B. Alexander, and Robert Ruigh. The Nineteenth-Century Studies Group and the History Department’s Faculty Seminar provided a learned audience for early versions of several chapters.

Scholars elsewhere, in an act of incredible generosity, read an eight-hundred-page draft manuscript and gave me the benefit of lengthy written and verbal critiques: Louis S. Gerteis of the University of Missouri-St. Louis, Stanley I. Kutler of the University of Wisconsin—Madison, George M. Dennison of Colorado State University, Phillip S. Paludan of the University of Kansas, Herman Belz of the University of Maryland—College Park, and Howard Jay Graham of Walla Walla, Washington. None of these persons is responsible for any statements or opinions expressed in this study.

My greatest scholarly debt is owed to Dean Stanley N. Katz of the University of Chicago Law School, a friend, scholar, and historian who has been a source of encouragement over the years.

WILLIAM M. WIECEK Columbia, Missouri

Contents

Abbreviations Introduction

. The Ambiguous Beginnings of Antislavery

Constitutionalism: Somerset

Introduction

The slavery controversy was the most important single influence on American constitutional development before the Civil War. It underlay the struggle for sectional advantage that took place during the six crises of the union: 1783-1788, 1819-1821, 1832, 1846-1850, 1854, and 1860-1861. There were other great constitutional controversies in the antebellum period: creation of a national government, establishment of judicial review, charter of a national bank, restriction of speech. Each had its day and shaped our constitution, but none proved to be as lasting or as divisive as the ongoing effort to restrict or protect the enslavement of black people. In the end, the slavery controversy proved its potency by destroying the union.

Five of the crises of the union directly involved the expansion or security of slavery outside the existing slave states. Leaving aside the Nullification crisis of 1832, all the crises of the union after the first occurred when southerners perceived a threat to the security of slavery at times when the nation was about to expand again into the western empire. The crises occurred because some question about the place of slavery in the western empire had not yet been resolved, and all but the last were settled by a constitutional compromise of that question.

Because slavery had been regulated by law in all the mainland colonies during the eighteenth century, Americans in the early years of national independence neither questioned its legitimacy in the states

1. William M. Wiecek, “The Statutory Law of Slavery and Race in the Thirteen Mainland Colonies of British America,” Wm. & M. Q., 34 (1977), 258-280, surveys the statutory component of this regulation.

16 Introduction where it survived nor believed that the federal government could abolish it in those states. This assumption will be called the “federal consensus.” Its correlative tenets were: (1) only the states could abolish or in any way regulate slavery within their jurisdictions; (2) the federal government had no power over slavery in the states. It followed that the only proper posture of the national government with respect to slavery was strict laissez faire, except for one problem (the international slave trade) over which it had explicit constitutional powers, another (fugitive slaves) arguably within its regulatory ambit, and a third (slave insurrections) implicitly so. The crises of the union did not directly involve the security of slavery in the extant states; they related only to slavery in the territories or new states. No one, until the emergence of radical constitutional abolitionists in the 1840s, thought to challenge the federal consensus.

The consensus was threatened, however, by a momentous shift in outlook that took place within the antislavery movement around 1830—the appearance of immediatism. Before the 1830s, organized antislavery was moderate in spirit, gradualistic, and oriented to grappling with slavery at the state and local level. When the American Anti-Slavery Society was founded in 1833 around the demand for the immediate abolition of slavery, and when it directed its interests more conspicuously toward federal action than its predecessors had done, defenders of slavery sensed a challenge to the security of slavery in the extant states. The AA-SS repeatedly denied that it harbored any such intention, but it failed to convince slavery’s champions.

The federal consensus assumed the legitimacy of slavery in the states where it existed. In 1838, five years after the founding of the AA-SS, a coterie of abolitionists adopted the position that slavery was everywhere illegitimate. They rejected the federal consensus and tried, unsuccessfully, to have the AA-SS repudiate it. This group will be referred to as the radical constitutionalists, “radical” because they rejected the consensus, “constitutionalists” because they sought to abolish slavery by constitutional action.

The radicals’ challenge, together with a disagreement over the wisdom of organizing an antislavery third party, split the organized movement. In addition to the radicals, two other abolitionist groups emerged in the 1840s: Garrisonians and moderate constitutionalists. Both, in differing ways, supported the consensus. The Garrisonians by

Introduction 17

1844 maintained that the Constitution supported slavery and was a proslavery compact. They therefore condemned it, urged disunion and personal disallegiance, and denounced the Liberty party, which had become the vehicle for supporters of antislavery third-party action. Moderate constitutionalists defended the consensus, but demanded that the federal government be divorced from any support of slavery. They hoped that the removal of federal support, coupled with vigorous antislavery political involvement either through the Liberty party or in one of the regular parties, would render slavery so vulnerable that the states would abolish it of their own accord.

The moderates in 1846 to 1848 coalesced with nonabolitionists from the regular parties on a platform of opposition to the extension of slavery into the new territories acquired in the Mexican War. The catalyst for this fusion was the Wilmot Proviso, first introduced in 1846, which would have forbidden the establishment of slavery in any of the erstwhile Mexican territories. The Proviso also marked the transit of abolitionist constitutionalism from one era to another. Before the Proviso, the controversy over slavery was waged over a wide range of issues, of which the problem of slavery in the territories was only one among several. After 1846, however, the extension of slavery into the territories became the overriding issue, eclipsing all others in national politics except that of fugitive slaves, which was decidedly subordinate. Constitutional development after 1848 was so radically different from what had gone before, and its political configurations so changed, that it must be the subject of separate investigation. Hence the terminal date of this study.

Except for the Garrisonians, who looked only backward, abolitionists tried to describe what the Constitution had been, what it was in their present, and what it could or should become, and they sometimes did these three things simultaneously, confusing past and future in a fused “is.” Aileen Kraditor assumes agreement among modern historians that the Garrisonian interpretation of the Constitution is the “correct one,” but that judgment requires severe qualification.? Garrisonians and defenders of slavery were correct in seeing a tra-

2. Aileen S. Kraditor, Means and Ends in American Abolitionism: Garrison and His Critics on Strategy and Tactics, 1834-1850 (New York: Pantheon, 1969), 216; see also a more qualified statement of this view in Staughton Lynd, “The Abolitionist Critique of the United States Constitution,” in Martin Duberman, ed., The Antislavery Vanguard: New Essays on the Abolitionists (Princeton: Princeton Univ. Press, 1965), 209-239.

18 Introduction jectory of development, along which the Constitution was forced toward an ever more proslavery character, and their judgment was validated in that summa of proslavery constitutionalism, the Dred Scott case. But this view was valid only looking backward in time; the trajectory was neither necessary nor inevitable. There is much to be said for the radical position, looking forward in time, which tried to discern what the constitution might be.

Four prominent abolitionists vaguely grasped this idea. Lewis Tappan explained to Charles Sumner his conversion from moderate to radical views: “You are right in saying that the abolitionists of 1830 to 40 ‘did not find any power in the Constitution to enter the Slave States’ except with moral suasion. The power may have been there nevertheless.” Tappan groped awkwardly for an explanation of how this power might be realized:

The democrats have interpreted the Constitution to be what a majority in Congress says it is. The Govt. has upheld slavery. The people have sanctioned it. [But] by the rule thus laid down, the Govt. can limit, nay abolish slavery, were there no other rule. ‘No man shall be deprived of life, liberty or property without due process of law.’ By what process of law are 3,000,000 of our fellow-beings held in slavery in this country? When public opinion is rectified there will be no difficulty, I apprehend, in bringing about the abolition of slavery in this country constitutionally.?

William Goodell approvingly quoted an unnamed lawyer who remarked to him that “the lawyers argue from the constitution, as it is now perverted. The present mis-interpretation of it they make their starting point.” This perverted interpretation had become so canonical, admitted Edwin W. Clarke, that the radical abolitionist interpretation was “visionary.” But then so had been the ideas of Granville Sharp when he launched his seemingly futile crusade against slavery in England in 1768, and if English courts could be brought around to Sharp’s antislavery, so might American courts, once disenthralled of their subservience to the Slave Power.*

Samuel J. May, reflecting on intramural abolitionist conflicts, noted that Garrisonians maintained the American constitution was pro-

3. Lewis Tappan to Charles Sumner, 26 June 1860, Charles Sumner Papers, Houghton Library, Harvard University; quoted by permission of the Houghton Library.

4. William Goodell, “The Constitution and Slavery,” National Era, 1 April 1847; E. W. C[{larke], “The Constitution and Slavery,” ibid., 18 March 1847.

Introduction 19 slavery, while the moderates and radicals insisted it was antislavery, but “it seemed to me that it might be whichever the people pleased to make it.” May touched on the essential character of Everyman’s Constitution: it was, and is, whatever the American people are pleased to make it, and they may alter it in modes other than formal amendment.

5. Samuel J. May, Some Recollections of Our Antislavery Conflict (Boston: Fields, Osgood, 1869), 143-144.

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.: 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

1. This chapter is adapted from William M. Wiecek, “Somerset: Lord Mansfield and the Legitimacy of Slavery in the Anglo-American World,” U. Chi. L. Rev., 42 (1975), 86~146. Cp. David Brion Davis, The Problem of Slavery in the Age of Revolution, 1770-1823 (Ithaca: Cornell Univ. Press, 1975), ch. 10.

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.

I. Could A “own” B as a slave in England?

A. What did he own? The body of B? The right to B’s services?

B. How could the master enforce whatever rights he had?

C. 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.

II. Could A “own” B as a slave in English colonies? A. What rights could A or B claim while either or both were in

WI.

IV.

B.

England?

Could the metropolis establish, regulate, or abolish slavery in the colonies? What was the constitutional status of the colonies within the empire?

. Did colony slave laws have extraterritorial force? In England?

In other English colonies? In non-English jurisdictions?

. 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?

How far would common-law courts recognize the legal incidents of slave status adhering to slaves in England? A. What were its essential incidents? Hereditable status? Life-

E.

time slavery? Absolute dominion of the master, except as restrained by positive law? Could the common law accomodate the discipline necessary to slavery?

. Did slavery depend on racial distinction? Non-Christian religious status?

. Would English courts enforce a contract for the sale of a slave?

. 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?

Did the master have rights against third parties who interfered with his control over the slave (as, e.g., by impressment)?

What rights did the slave have?

A.

B.

Juridical capacity as witness or party? Right to own and dispose of property? To make contracts? To marry and control his children?

Could a slave seek a writ of habeas corpus? Could he sue his master in quantum meruit?

. Finally, was slavery delegitimated by:

A. Natural law?

B.

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),? 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),? 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),* 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), 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.

3. Three reports of this case exist: Carthew 396, 90 Eng. Rep. 830; 1 Ld. Raym. 1274, 92 Eng. Rep. 338; and 5 Mod. 186, 87 Eng. Rep. 598 (sub nom. Chamberline v. Harvey) (K.B. 1697).

4. Salk. 666, 91 Eng. Rep. 566. Also reported Holt K.B. 495, 90 Eng. Rep. 1172.

5. This case was twice reported: 2 Salk. 666, 91 Eng. Rep. 567 (K.B. 1705), and 2 Ld. Raym. 1274, 92 Eng. Rep. 338 (K.B. 1706).

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.”® 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.” 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: “Tt 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),® 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

6. The joint opinion is quoted in full in Knight v. Wedderburn, 8 Fac. Dec. 5, Mor. 14545 (Scotland Court of Sessions, 1778).

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 the British isles. In addition to these, an unknown number of free blacks also lived in the realm, numerous enough to create a special group of London beggars known derisively as “St. Giles’ blackbirds.” Most of them were Africans or Creoles who had been brought to the metropolis via the island or mainland colonies as personal servants to West India planters.? Their presence had been visible throughout the eighteenth century, and by the 1770s they had attracted the attention of men who had been active in efforts to abolish the British slave trade. Thus crossed the paths of an obscure black, James Somerset, and Granville Sharp, the first great English abolitionist.

Sharp was an unusual person, even in eighteenth-century England. A grandson of the Archbishop of York, but son of a poor archdeacon, Sharp was self-educated, having been employed first as a cloth merchant’s apprentice and later as a clerk in the Ordnance Department, a post he resigned in 1776 because he could not bring himself to make out orders for shipping munitions to the revolting colonies, whose cause he supported. Sharp became involved in antislavery activism by litigation in 1767 to free a slave named Jonathan Strong. Strong’s master, David Lisle, brought countersuit against Sharp for detainer of the slave. Sharp urged his lawyer to defend on the grounds that no action could be brought for detainer because the master could not have a property right in a slave, but counsel rejected this suggestion on the basis of the 1729 Yorke-Talbot opinion. Thus frustrated, Sharp determined to reexamine from scratch the entire question of slavery, personal liberty, and the right to habeas corpus in England.?°

Two years of research produced A Representation of the Injustice . . . of Tolerating Slavery (1769), in which Sharp condemned

9. James Walvin, Black and White: The Negro and English Society 1555- 1945 (London: Penguin, 1973), chs. 1-5.

10. See Davis, Problem of Slavery in the Age of Revolution, 386-402, on the influence of Sharp on English antislavery thought.

slavery as “a gross infringement of the common and natural rights of mankind” and as “plainly contrary to the laws and constitution of this kingdom” because no laws “countenance” it and others, according to his interpretation, made it actionable. On this point, Sharp imaginatively cited statutes ranging from the mid-fourteenth century down to the Habeas Corpus Act (1679). From these provisions, Sharp argued that all persons in England, including black slaves, had a statutory right to contest their restraints in the courts through the writ of habeas corpus. He thus constituted a link in a chain of descent from Magna Charta through the mediaeval Parliaments to the nineteenth-century American antislavery movement and the origins of the due process and equal protection clauses of the Fourteenth Amendment.

Having relied on one group of parliamentary statutes in favor of liberty, Sharp could not avoid others recognizing or condoning slavery: those regulating the slave trade, granting concessions to slavers, and confirming masters’ property rights in slaves.1? In the face of these, he argued in an afterthought that statutes creating an injustice should be treated by the courts as being superseded by statutes favoring liberty, which are of superior obligation.

Sharp unnecessarily suggested that a man might voluntarily enter into an agreement, for consideration, to become a slave, thereby conceding a contractual basis for slavery, but he denied any other source of legitimacy in the origins of slavery. “True justice makes no respect of persons,” he insisted, “and can never deny to any one that blessing to which all mankind have an undoubted right, their natural liberty.”

11. Granville Sharp, A Representation 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 (London: Benjamin White and Robert Horsfield, 1769), 40-41.

12. 5 Geo. 2, c. 7 (1732); 23 Geo. 2, c. 31 (1750); 25 Geo. 2, c. 40 (1752); charter of the Royal African Company (1672), reprinted in W. Noel Sainsbury, ed., Calendar of State Papers, Colonial Series: America and West Indies, 1669-1674 (London: HMSO, 1889), 409-412; Opinion of Solicitor General Sir Francis Winnington (1677), reprinted in W. Noel Sainsbury and J. Fortesque, eds., Calendar of State Papers, Colonial Series: America and West Indies, 1677-1680 (London: HMSO, 1896), 120.

13. Granville Sharp, 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 (London: Benjamin White, 1772), 24.