Law and Liberty in England and America

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Law and Liberty in England and America

While the concept of freedom has become universal, and basic civil and human rights are considered the minimum standard of existence in society, it was not always so. Law and liberty intersected increasingly in the seventeenth and eighteenth centuries during Britain's domination of the African slave trade, leading to numerous polarities of opinion and raising a host of important questions. For Africans in the Anglo-Atlantic slave societies, liberty was often arbitrated in courts.

The existence, spread, and growing entrenchment of African slavery in the New World in the period of flourishing revolutionary ideologies of liberty constituted a deeply intransigent problemone that refused to be solved either easily or quickly (because of its deeply profitable nature). Antislavery movements on both sides of the Atlantic stood squarely against proslavery proponents, and the enslaved themselves resisted the institution in countless creative ways. Even after Britain's loss of the American colonies, American law traced its roots to English law; English cases were invoked as legitimate legal precedents. By availing themselves of legal structures on both sides of the Atlantic, the enslaved and their advocates sought and, surprisingly, won relief in the courts.


Political philosophers and legal theorists (such as Grotius, Locke, and Hobbes) initiated discussions about natural law and natural rightslaws and rights inherent in the human condition. The greatest articulation of English law in the eighteenth century was William Blackstone's Commentaries on the Laws of England in 1765, contributing an accessibly written, comprehensive view of English common law. In it he commented on natural rights, the rights of persons, and the tendency of the law to favor liberty, additionally insisting that the law of England asserted and preserved the personal liberty of individuals. Furthermore, according to ancient practices, English soil was by definition free soil: A slave or a stranger who set foot on it became, in theory, free. In a sense, the doctrine of English soil at once advanced the cause of liberty and contributed to years of contradictory rulings. It was at the heart of English legal tendencies toward defending personal liberty, yet according to the claims of those in the business of slavery, it threatened personal property.


The first recorded English case concerning the status of Africans was Butts v. Penny (1677). Although the case had not been brought by the Africans involved, it had at its core a problem that would bedevil the courts well into the nineteenth century: Could the enslaved be considered property or were they legal personalities? While it would have been simpler to have declared the enslaved to be property in all cases, ridding the courts of ambiguities, no such uniform declaration ensued. There were English laws in abundance concerning villeinspeasants who comprised a bound labor staple doomed to grime and perpetual poverty. The laws concerning villeins were harsh and restrictive, but villeinage and slavery were not the same. As for English slaves, they were not numerous. English law appeared ill prepared to address the question of enslaved Africans. Judicial rulings from the late seventeenth century to the late eighteenth century concerning African slavery were inconsistent as a result both of the inability to equate African bondage with existing forms of English bondage and of the spread of natural rights ideology. Decisions might easily be in favor of liberty or against it.

Early court cases emphasized the non-Christian status of Africans and simultaneously benefited from circular reasoning. Africans were defined as infidels and customarily purchased or sold as merchandise in America; had Africans been Christians, they could not be bought and sold. Africans, therefore, were property because they were saleable, and were saleable because they were property. For a period of years, then, antislavery proponents routinely encouraged Christian baptism as a way to ensure the freeing of slaves in England. (In some circles baptism was considered effective manumission.) However, the mention of buying and selling in the Americas introduced a key ideological and legal qualifierone that potentially favored dealers in slaves. Legal counsel for masters, merchants, and planters would typically link slave practices with specific geographic locations where those practices were both customary and sanctioned. In this way they could argue for the lawful continued but limited recognition of slavery even in places where there was no slave law per se. Thus, masters would not necessarily jeopardize their supposed right to a slave when they went to certain places in the English Atlantic.

The signal English case, both in terms of trial length and widespread effect of the ruling, was the 1772 Somerset case. Its arguments and decision became central to numerous American cases prior to the Civil War. James Somerset had been brought to England in the late 1760s by his owner, Charles Stuart. Eventually, Somerset ran away, but he was found and placed on board a ship bound for the Caribbean plantation colonies to be resold. His allies challenged his forcible detainment with a writ of habeas corpus, beginning a legal process that continued for many months. Arguments about the nature of slavery, Somerset's contested status relative to the law, the question of detainment under duress, the problem of slavery on English soil and the rights of masters abounded. Reluctant to address directly the fundamental question of slavery, Chief Justice Mansfield rendered a decision that focused on Somerset's wrongful detainment and forcible removal from England despite having committed no crime. In short, Mansfield's decision freed James Somerset, but it did not end slavery in England. What was key, however, was Mansfield's language, broadly condemning slavery by insisting that as an institution slavery was so odious that only positive law (a specific legislative act) could support it. The Somerset decision posed a significant threat to slavery by questioning the ways in which custom and practice sanctioned slavery despite the lack of laws specifically enacting slavery's existence. The Somerset decision, well known to American legal personnel, would have an ongoing effect in America for years to come.


By the end of the eighteenth century, northern states had moved to abolish slavery within their individual borders. Slavery expanded in the South, where a variety of complex laws concerning manumission developedincluding, in Virginia, the prohibition of manumission of slaves under or over arbitrarily determined ages. Certain slaves in the 1780s were emancipated as a result of serving in the American War for Independence, although even free African Americans continued to live under social and legal surveillance.

During the early nineteenth century, proslavery ideology consolidated, aided in part by early expressions of North/South polarization as the United States expanded westward with territories applying for statehood. The essential question regarding the admission of territories was this: Would they be slave states or free? This question kept the problem of slavery before the public at a national level, with the tensions playing out in political and legal realms. The existence of geographic areas of freedom so proximate to locales where perpetual bondage held sway contributed to the entrenchment of slavery in the United States, resulting in the increased regulation of fugitive slaves. In addition, slave owners themselves faced a new dilemma: What would happen if they went from their home slavery-sanctioning state to a free state with a slave in tow? Travelers (as slave owners temporarily in free states with their slaves were known) were problematic, for they echoed the Somerset situation. When a slave owner passed through a free state, was his customary relationship to his slave de facto suspended? Did the relationship persist? Would the relationship be suspended only if the enslaved person sought the protection of the local laws? Were states that did not sanction slavery obliged to temporarily admit the presence of that species of bondage into their midst? (This was a question of comitythe courtesy recognition of laws and judicial decisions of one jurisdiction in another jurisdiction.) If so, what constituted "temporary"? One month or three? Six months or a year?

The first major case to address the question concerning the presence of slavery on free soil was Commonwealth v. Aves (1836). The Somerset decision played a considerable role in the case. An enslaved little girl named Med was brought by her Louisiana mistress, Mrs. Slater, to Boston, Massachusetts. When the child's presence was discovered in the home of Mrs. Slater's fatherThomas Aves, a Boston residenta writ of habeas corpus was served upon him; Med was being "restrained of her liberty" unlawfully by Aves.

Central to the case were several questions: What was the effect of Louisiana law in Massachusetts? Brought to a free state temporarily, what was the status of a slave in those circumstances? Aves's counsel stressed the preeminence of Louisiana law over local Massachusetts law, for it was under Louisiana law that the child was enslaved; he argued in favor of comity. Arguing against comity, Med's counsel emphasized Massachusetts's long-term commitment to liberty and, following Somerset, focused on the undesirability of admitting slavery within specific locales; he insisted that Massachusetts, like England, was a place that favored liberty. The chief justice avoided ruling on the rights of the master but determined that by coming within the limits of Massachusetts, a person was subject to its municipal laws and entitled to the privileges those laws conferred; the little girl won her freedom.

Despite some successes, court rulings throughout the nineteenth century continued on a case-by-case basis. In Connecticut a slave may have successfully obtained freedom (Jackson v. Bullock, 1837), while in Mississippi a freed slave's ability to inherit property in a state where she was once a slave would be challenged (Mitchell v. Wells, 1859). Enslaved persons who resided for a time in a free locale but returned to the South sometimes sued for their freedom afterwards; prior to the 1840s their liberty was often upheld. However, by the 1850s most southern courts were ill disposed to hold that time spent within geographically free borders transformed a slave into a free person. The legal retrenchment of liberties during the nineteenth century must be viewed in relation to the growing intersectional tensions. Both the infamous 1850 Fugitive Slave Law (upheld by the federal government) and the 1854 Kansas-Nebraska Act (allowing slavery into places where it had been previously prohibited) demonstrated the degree to which the ubiquitous problem of slavery in the United States lay at the heart of sectional strife. The landmark 1857 Dred Scott decision, in which the Missouri Supreme Court reversed an earlier ruling that Scott had become free while living in a free locale (and maintained his liberty even after reentering a slaveholding state), brought the agitation for liberty through the courts to a nadir. Chief Justice Taney's caustic opinion about the inability of people of African descent to be legal personalities and citizens with basic rights reversed an important jurisprudential tenet as well as decades of legal practice in favorem libertatis (in favor of liberty). It would take the courts decades to begin to undo and redress the damage.

See also Abolition; Dred Scott v. Sandford ; Free Blacks, 16191860; Slavery and the Constitution


Davis, David Brion. The Problem of Slavery in the Age of Revolution. Ithaca, N.Y.: Cornell University Press, 1975.

Finkelman, Paul. The Law of Freedom and Bondage: A Casebook. New York: Oceana, 1986.

Hall, Kermit L., et. al. American Legal History: Cases and Materials. New York: Oxford University Press, 1991.

Higginbotham, A. Leon, Jr. In the Matter of Color: Race and the American Legal Process. New York: Oxford University Press, 1978.

Posner, Richard A. The Problems of Jurisprudence. Cambridge, Mass.: Harvard University Press, 1990.

Walvin, James. England, Slaves, and Freedom: 17761838. Jackson: University Press of Mississippi, 1986.

t. k. hunter (2005)

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Law and Liberty in England and America

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Law and Liberty in England and America