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    William Murray, 1st Earl of Mansfield (1705-1793), Judge - portraits at the National Portrait Gallery, London, England

  • "Lord Chief Justice, 1756-88; architect of modern commercial law and marine insurance. Known for his eloquence, he was a firm opponent of Chatham and upheld the absolute dominion of Great Britain over the colonies. In a pioneering judgement in 1772, he held that English Law did not recognise the state of slavery. His tolerance towards Roman Catholics led the mob to burn his town house during the Gordon Riots of 1780."

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  • "NPG 172
    William Murray, 1st Earl of Mansfield
    by John Singleton Copley
    Medium: oil on canvas
    Measurements: 88 in. x 57 1/2 in. (2235 mm x 1461 mm)
    Date: exhibited 1783
    Primary Collection
    On display at the National Portrait Gallery"

  • "Mansfield was a judge renowned for the quickness and depth of his understanding of complex legal matters and for the strict impartiality of his judical conduct. Perhaps his most famous judgement was in 1772 in the case of James Somersett. Somersett had been brought to England as a slave, had then escaped, but was recaptured and was awaiting shipment to Jamaica. Mansfield's judgement was that slavery was so odious that nothing but positive law could support it. No such law being found to exist, Mansfield concluded there was no legal backing for slavery and that no black people could be removed from England against their wishes. This judgement was a key stage in the process leading to the abolition of slavery. Mansfield is seen here in his Peer's robes."

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  • 2 of 3 portraits of William Murray, 1st Earl of Mansfield (NPG 474) :

  • Gordon Riots of 1780

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  • "Lord George Gordon, a retired navy lieutenant, was strongly opposed to proposals for Catholic Emancipation. On 2nd July, 1780, Gordon led a crowd of 50,000 people to the House of Commons to present a petition for the repeal of the 1778 Roman Catholic Relief Act, that had removed certain disabilities. This demonstration turned into a riot and for the next five days many Catholic chapels and private houses were destroyed. Other buildings attacked and damaged included the Bank of England, King's Bench Prison, Newgate Prison and Fleet Prison.

    On the 7th July, the army was called out and it was later reported that 285 of the rioters were killed, 173 wounded and 139 arrested. Lord George Gordon was tried for high treason but was found not guilty. However, 25 of the rioters were hanged and twelve imprisoned. It is estimated that over £180,000 worth of property was destroyed during the Gordon Riots."

  • Unconstitutionality Of Slavery by Lysander Spooner (originally published in 1845) (referring to US Constitution)

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    • "The authority of these charters, during their continuance, and the general authority of the common law, prior to the revolution, have been recognized by the Supreme Court of the United States. No one of all these charters that I have examined -- and I have examined nearly all of them -- contained the least intimation that slavery had, or could have any legal existence under them. Slavery was therefore as much unconstitutional in the colonies, as it was in England.

      It was decided by the Court of King's Bench in England -- Lord Mansfield being Chief Justice -- before our revolution, and while the English Charters were the fundamental law of the colonies -- that the principles of English liberty were so plainly incompatible with slavery, that even if a slaveholder, from another part of the world, brought his slave into England -- though only for a temporary purpose, and with no intention of remaining -- he nevertheless thereby gave the slave his liberty. Previous to this decision, the privilege of bringing slaves into England, for temporary purposes, and of carrying them away, had long been tolerated.

      This decision was given in the year 1772. And for aught I see, it was equally obligatory in this country as in England, and must have freed every slave in this country, if the question had then been raised here. But the slave knew not his rights, and had no one to raise the question lot him.

      The fact, that slavery was tolerated in the colonies, is no evidence of its legality; for slavery was tolerated, to a certain extent, in England, (as we have already seen,) for many years previous to the decision just cited -- that is, the holders of slaves from abroad were allowed to bring their slaves into England, hold them during their stay there, and carry them away when they went. But the toleration of this practice did not make it lawful, notwithstanding all customs, not palpably and grossly contrary to the principles of English liberty, have great weight, in England, in establishing law.

      The fact, that England tolerated, (i. e. did not punish criminally,) the African slave-trade at that time, could not legally establish slavery in the colonies, any more than it did in England -- especially in defiance of the positive requirements of the charters, that the colonial legislation should be consonant to reason, and not repugnant to the laws of England."

    • Slavery, if it can be legalized at all, can he legalized only by positive legislation. Natural law gives it no aid. Custom imparts to it no legal sanction. This was the doctrine of the King's Bench in Somerset's case, as it is the doctrine of common sense. Lord Mansfield said, "So high an act of dominion must be recognized by the law of the country where it is used. * * * The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from the memory. It is so odious that nothing can be suffered to support it but positive law."

      Slavery, then, being the creature of positive legislation alone, can be created only by legislation that shall so particularly describe the persons to be made slaves, that they may be distinguished from all others. If there be any doubt left by the letter of the law, as to the persons to be made slaves, the efficacy of all other slave legislation is defeated simply by that uncertainty.

      In several of the colonies, including some of those where slaves were most numerous, there were either no laws at all defining the persons who might be made slaves, or the laws, which attempted to define them, were so loosely framed that it cannot now be known who are the descendants of those designated as slaves, and who of those held in slavery without any color of law. As the presumption must under the United States constitution and indeed under the state constitutions also be always in favor of liberty, it would probably now be impossible for a slaveholder to prove, in one case in an hundred, that his slave was descended, (through the maternal line, according to the slave code,) from any one who was originally a slave within the description given by the statutes. [*33]

    • Footnote to reference: 6. [*23] Somerset v. Stewart.--Lofft's Reports, p. 1 to 19, of Easter Term, 1772. In the Dublin edition, the case is not entered in the Index.

    • Footnote to reference: 7. [*24] Have Parliament the constitutional prerogative of abolishing the writ of habeas corpus? the trial by jury? or the freedom of speech and the press? If not, have they the prerogative of abolishing a man’s right of property in his own person?

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Somerset v Stewart Lofft 1; Long's Rep; Burrows' Rep; 20 Howell's State Trials 1, 79-82; 98 Eng Rep 509 (King's Bench, June 1772)

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  • Slavery derives from, is in the context of, and involves force, violence, assault, battery, extortion, detention. So, described that way, in its true nature, it is always illegal. The only reason people think 'slavery' is legal, is simply by their hearing/seeing/using/taking that word, 'slavery,' out of that context.

    Even out of context, under the "common law," since the Magna Carta (1215), persons being detained have a right to know the charges. A person being detained, can force his being released by demanding to be informed of the charges; if not, release is instant. The process is called getting a writ of habeas corpus.

    Slaves were being detained without charge. A habeas corpus case was filed. This site has the text of the legal papers, and court decision, by Judge Lord Mansfield, in 1772, freeing the slaves. In modern words, slavery was unconstitutional. If the colonies had obeyed the decision, i.e., the English Constitution, there would have been no slaves! Any purported slaves would have been freed, and there would have been no Civil War.

    You can view the decision and legal papers ("brief") in the case at your area law library. The case was so significant, it was published by five different publishers, by Long, by Burrows, by Lofft starting on page 1; in the Howell's State Trials, volume 20, starting on page 1 with the decision on pages 79-82; and in the English Reporter, volume 98, starting on page 509. The full text is in process of being placed here.

    The version to be placed here is the fullest, from Howell's text. It will include the legal briefs by the plaintiff and defendant, not just the decision. In addition, instead of merely citing the precedents that they used, the Howell's edition reprinted large portions of them, and the legal briefs in those cases also. This was in essence an encyclopedia of precedents, well beyond a normal case report, which merely reprints the decision (here, a mere three pages, 79-82).

  • PRE-CIVIL WAR U.S. SLAVERY WAS ILLEGAL AND UNCONSTITUTIONAL: Evidence from the English Common Law, Court Precedents, The Declaration of Independence, The U.S. Constitution, The Bill of Rights, and The Many Anti-Kidnaping Precedents :

  • Reference to the court case abolishing Slavery in the UK A Designer Universe? - STEVEN WEINBERG

    • "Lord Mansfield, the author of the decision in Somersett's Case, which ended slavery in England (though not its colonies)"

    • "It is certainly true that the campaign against slavery and the slave trade was greatly strengthened by devout Christians, including the Evangelical layman William Wilberforce in England and the Unitarian minister William Ellery Channing in America. But Christianity, like other great world religions, lived comfortably with slavery for many centuries, and slavery was endorsed in the New Testament. So what was different for anti-slavery Christians like Wilberforce and Channing? There had been no discovery of new sacred scriptures, and neither Wilberforce nor Channing claimed to have received any supernatural revelations. Rather, the eighteenth century had seen a widespread increase in rationality and humanitarianism that led others - for instance, Adam Smith, Jeremy Bentham, and Richard Brinsley Sheridan - also to oppose slavery, on grounds having nothing to do with religion. Lord Mansfield, the author of the decision in Somersett's Case, which ended slavery in England (though not its colonies), was no more than conventionally religious, and his decision did not men-tion religious arguments. Although Wilberforce was the instigator of the campaign against the slave trade in the 1790s, this movement had essential support from many in Parliament like Fox and Pitt, who were not known for their piety. As far as I can tell, the moral tone of religion benefited more from the spirit of the times than the spirit of the times benefited from religion. "

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    • Just over a hundred years ago, on 3 December 1892, a young woman called Daisy Hopkins was convicted by the Vice-Chancellor of Cambridge University and sentenced to fourteen days in the Spinning-House, the University's house of correction. The offence charged against her was that of "walking with a member of the University" - that was the form of words invariably then used in the Vice-Chancellor's Court as a genteel shorthand for Daisy's true offence. What in fact she was guilty of was prostitution with an undergraduate. She brought proceedings by certiorari and habeas corpus and just eight days later came before the Divisional Court. That consisted of the Lord Chief Justice (Lord Coleridge) and Smith J. The University was represented by the Attorney General, a second silk and a junior; Miss Hopkins also had a silk. These were serious matters. Her challenge succeeded; the proceedings against her were quashed and she was set free. As the Lord Chief Justice perspicaciously observed:
      "Nobody would suppose that a person simply walking with a member of the University, who might be that member's mother, or sister, or wife, or friend, was guilty of an offence against the law which would justify the Vice Chancellor in imprisoning him or her".
      Even though everyone recognised that in reality Daisy Hopkins was being tried for what Lord Coleridge called "the far graver charge of her being a person of immoral character and for having been guilty of immoral conduct", that could not sustain the conviction. That charge had never been made.
      Those were great days for habeas corpus. Contrast the position now. The present Lord Chief Justice, Lord Bingham, giving judgement a year ago in a group of cases involving challenges to a number of custody time limit extensions - ex parte MacDonald - said, in respect of one of them:
      "We dismiss these applications. The concurrent application for habeas corpus was wholly unnecessary and served only to increase costs unnecessarily. It should not have been made."

    • First, however, it is worth glancing at the history of the writ if only to destroy the myth that from time immemorial (or at any rate, as many suppose, since Magna Carta) habeas corpus has been the central foundation of all our liberties. It is not so. First a couple of jury points. The writ had its origins not in securing freedom from detention at all, but rather in ensuring a person's attendance before a court of law so that justice (whether civil or criminal) might be administered in his presence. Later on, hardly its finest flowering, the writ became a weapon in the armoury of the common-law courts in their jurisdictional war with the courts of equity. Injunctions would be granted in chancery to prevent litigants from suing at common law or to restrain them from enforcing common-law judgements which violated equitable principle. The King's Bench would then release by habeas corpus whoever was committed for having breached these injunctions. Thus was the battle fought.
      Only gradually did the writ emerge as a means of testing the legality of detention. A turning point came with the Habeas Corpus Act 1679 which, in language today almost incomprehensible, although the Act is still in force, sought to strengthen the procedure's safeguards. It provided that writs should be available at any time of the year (remarkably it provides that a judge who unduly refuses the writ in vacation is liable for up to £500 punitive damages, a sum it has not been found necessary to increase down the centuries!), that the jailer must obey the writ immediately, that the judge must come to a speedy determination upon it and that, if released, the prisoner should not then immediately be reincarcerated. "The Act of 1679", observed Professor Sharpe in his monograph on the law of habeas corpus (2nd Edition 1989) - the only such work on the topic and invaluable to anyone concerned to explore this somewhat arcane branch of jurisprudence - "marks the point at which the writ took its modern form." By 1794 Blackstone, in his Commentaries, was describing it as a high prerogative writ. As he put it:
      "The King is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted."
      And that, of course, is what the writ does: it commands the jailer to bring the applicant before the court on the day and at the time specified "together with the day and cause of his being taken and detained ... [so that the court] may then and there examine and determine whether such cause is legal."
      Before I pass from this lightning history of habeas corpus, there are two broad points to be made. First, the writ of habeas corpus has never been an all-purpose remedy for securing the freedom of those claiming to have been wrongly detained. As Lawton LJ observed in 1987 in Linnett v Coles :
      "A writ of habeas corpus is probably the most cherished sacred cow in the British constitution; but the law has never allowed it to graze in all legal pastures."

      Secondly, it should be noted that historically habeas corpus allowed only the most limited review. So it was that in many cases, the scope of review came to be extended by a linked application for certiorari - certiorari-in-aid of habeas corpus as it was known. Daisy Hopkins was just such a case. By bringing up the whole record, the court could be satisfied that there was real substance in the complaint and not merely some technical procedural flaw.
      The real point to be made is that strictly speaking the only form of review available on habeas corpus is as to the soundness of the reason given for detention. As Lord Mansfield observed in Sommersett's Case : "The only question before us is whether the cause on the return is sufficient." True, as the law developed, there were cases where the court was prepared to go behind the return and to review some prior determination upon which it rested. But that was because the courts chose to act just as if certiorari-in-aid had in fact been used.
      The essential point I make is that it is no heresy to contemplate, as I do, subsuming habeas corpus within the wider scope of judicial review. That rather would be to re-unite it with certiorari as so often in the past it was, or at any rate was assumed to be, united.

    • I began a hundred years ago with Daisy Hopkins. I end, still further back in history, with Sommersett's case of 1778. You will need no reminding of its facts. Sommersett was a negro slave brought by his master from Virginia to England. Having refused to continue in service, he was captured and confined in irons on a ship lying in the Thames bound for Jamaica. A writ of habeas corpus was issued directed to the ship's captain requiring him to produce the applicant's body before the Court together with the cause of his detention. The return to the writ stated that slaves were authorised by the laws of Virginia and Jamaica and that Sommersett had been committed to custody to be taken to Jamaica and sold there. Lord Mansfield's historic holding was that slavery is so odious that only positive law could support it, and that in England there was none. He concluded with the famous words "the black must be discharged." I always thought, however, that counsel had the best line:

      "The air of England is too pure for a slave to breathe in".

      I mention the case not just because no habeas corpus lecture would be complete without it, but also to make three short final points. First this: Sommersett's case took six months to decide; judicial review, I assure you, can do much better! Second, great though the issue there was, that was not a public law case at all. Rather it was a dispute between the slave and his owner, although of course the writ had to be directed towards the ship's captain. I can see no purpose whatever in retaining habeas corpus as a private law remedy. If anyone today is wrongly detained by a private citizen, his remedy surely would be to obtain an immediate injunction. Third and finally this. Tempting though it is to glory nostalgically in our proud past, we should instead have the courage to recognise and build on our present success. Remedies and processes are only ever as good as the judges who administer them. Bring habeas corpus into the evolving process of judicial review and I do not think the judges will fail you.

  • The Rt. Hon. William, George Murray, Earl of Mansfield, Lord Chief Justice of England (1705-1793)

    • "Mansfield's political career was disappointing. He supported government policy in the American colonies, and clearly failed to sense the anger of popular feeling and prejudice as his lack of precautions during the Gordon Riots shows. In political rights cases he tended to decide the issues on technicalities, rather than on principles and was probably not entirely comfortable in ordering a slave brought to England by his master set free in Somersett's Case (1772). "

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  • James Somerset

    • In Somerset's Case, the Chief Justice of the King's Bench, Lord Mansfield, issued a judgment which concluded:

      "...The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory: it's so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from a decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged."

      While Somersett's case provided legal precedent that the state of slavery was unlawful in England itself, serfdom having died out there centuries before, it did not end British participation in the slave trade or slavery in other parts of the British Empire. It was not until 1807 that Parliament decided to suppress the slave trade; and slavery continued to exist in various parts of the British Empire until it was finally abolished by Act of Parliament in 1833. However, because of the Somerset case, there has never been a law passed to make slavery illegal in Britain - it has never been legal.

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  • Transcript : The Somerset Case : Howell's State Trials, vol. 20, cols 1-6, 79-82

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    • 548. The Case of JAMES SOMMERSETT, a Negro, on a Habeas Corpus,* King's-Bench: 12 GEORGE III. A.D. 1771-72.

      Of this Case only a Statement of the Facts, and Mr. Hargrave's learned Argument were inserted in the former edition of this Work. I have here added the other Arguments, and the Judgment of the Court, from Lofft's Reports, in which is a Note of the Case under the name of Sommersett against Stewart.

      On the 3d of December 1771, affidavits were made by Thomas Walklin, Elizabeth Cade, and John Marlow, that James Sommersett, a negro, was confined in irons on board a ship called the Ann and Mary, John Knowles commander, lying in the Thames, and bound for Jamaica; and lord Mansfield, on an application supported by these affidavits, allowed a write of Habeas Corpus, directed to Mr. Knowles, and requiring him to return the body of Sommersett before his lordship, with the cause of detainer.

      Mr. Knowles on the 9th of December produced the body of Sommersett before lord Mansfield, and returned for cause of detainer, that Sommersett was the negro slave of Charles Steuart, esq. who had delivered Sommersett into Mr. Knowles's custody, in order to carry him to Jamaica, and there sell him as a slave. Affidavits were also made by Mr. Steuart and two other gentlemen, to prove that Mr. Steuart had purchased Sommersett as a slave in Virginia, and had afterwards brought him into England, where he left his master's service; and that his refusing to return, was the occasion of his being carried on board Mr. Knowle's ship.

      Lord Mansfield chusing to refer the matter to the determination of the court of King's-bench, Sommersett with sureties was bound in a recognizance for his appearance there on the second day of the next Hilary term; and his lordship allowed till that day for settling the form of the return to the Habeas Corpus. Accordingly on that day Sommersett appeared in the court of King's-bench, and then the following return was read:...

      * The very important matters which this case involved, viz. first, The rights over the person of a negro resident here, claimed by another person as the owner of the negro; and, supposing such rights to exist, secondly, The extent of them; and thirdly, The means of inforcing them, were, I believe, never, except in this case, made the subject of a suit at law in England. But in Scotland two cases of this sort have occurred before the Court of Session; 1, That of Sheddan against Sheddan, A.D. 1756; 2, That of Knight against Wedderburn, A.D. 1775-1778.

      Of these two cases the following reports are printed from the 'Dictionary of Decisions,' tit. 'Slave,' vol. 33, pp. 14,545, et seq.:

      "Robert Sheddan against a Negro, - July 4, 1757.

      "A Negro, who had been bought in Virginia, and brought to Britain to be taught a trade, and who had been baptized in Britain, having claimed his liberty, against his master Robert Sheddan, who had put him on board a ship, to carry him back to Virginia, the Lords appointed counsel for the negro, and ordered memorials, and afterwards a hearing in presence, upon the respective claims of liberty and servitude by the master and the negro.

      "But, during the hearing in presence, the negro died; so the point was not determined."

      VOL. XX.

      "Joseph Knight, a Negro, against John Wedderburn. - January 15, 1778.

      "The commander of a vessel, in the African trade, having imported a cargo of negroes into Jamaica, sold Joseph Knight, one of them, as a slave, to Mr. Wedderburn. Knight was then a boy, seemingly about twelve or thirteen years of age.

      "Some time after, Mr. Wedderburn came over to Scotland, and brought this negro along with him, as a personal servant.

      "The negro continued to serve him for several years, without murmuring, and married in the country. But, afterwards, prompted to assert his freedom, he took the resolution of leaving Mr. Wedderburn's service, who, being informed of it, got him apprehended, on a warrant of the justices of peace. Knight, on his examination, acknowledged his purpose. The justices found 'the petitioner entitled to Knight's services, and that he must continue as before.'

      "Knight then applied to the sheriff of the county, (Perthshire), by petition, setting forth, 'That Mr. Wedderburn insisted on his continuing a personal servant with him,' and prayed the sheriff to find, 'That he cannot be continued in a state of slavery, or compelled to perpetual service; and to discharge Mr. Wedderburn from sending the petitioner abroad.'

      "After some procedure in this process, the sheriff found, 'That the state of slavery is not recognized by the laws of this kingdom, and is inconsistent with the principles thereof; that the regulations in Jamaica, concerning slaves, do not extend to this kingdom; and repelled the defender's claim to a perpetual service.' Mr. Wedderburn having reclaimed, the sheriff found, 'That without wages, is slavery; and therefore adhered.'

      "The defender removed the cause into the court by advocation. The lord ordinary took it to report upon informations. Being a question of general importance, the Court ordered a hearing in presence, and afterwards informations of new, upon which it was advised.

      "Pleaded for the Master: That he had a right either to the perpetual service of the negro in this country, or to send him back to the plantations from which he was brought. His claim over the negro, to this extent, was argued on the following grounds:

      "The productions of the colonies, ever since they were settled, have been cultivated by the means of negro slaves imported from the coast of Africa. The supplying the colonies with these slaves has become an extensive trade; without which, the valuable objects of commerce, now furnished by the plantations, could not be cultivated. British statutes have given sanction to this trade, and recognized the property of the master in such slaves; 10th W. 3, c, 26; 5th Geo. 2, c. 7; 23d Geo. 2, c. 3.

      "The property which, in Jamaica, was established in the master over the negro, under these statutes, and the municipal law there, cannot be lost by a mere change of place. On principles of equity, rights acquired under the laws of foreign countries are supported and inforced by the courts of law here. A right of property will be sustained in every country where the subject of it may come. The status of persons attend them wherever they go; Huber, lib. 1, t. 3, c. 12.

      "The law of the colonies is not to be considered as unjust, in authorizing this condition of slavery. The statutes which encourage the African trade show, that the legislature does not look on it in that light. The state of slavery is not contrary to the law of nations. Writers upon that law have enumerated several just and lawful origins of slavery; such as contract, conquest in a just war, and punishment of crimes. In cases where slavery is authorized by the laws of Jamaica, it must be presumed to have proceeded on a lawful origin. The municipal law of no country will be presumed unjust.

      "A state of slavery has been universally received in the practice of nations. It took place in all the ancient nations, and in all the modern European nations, for many ages. In some of them it still remains; and in none of them has it been abolished by positive enactments, declaring it unjust and illegal, but gone into disuse by degrees, in consequence of many different causes. Though, therefore, the municipal law of this country does not now admit of this state of slavery in the persons of citizens, yet, where foreigners, in that state, are brought into the country, the right of their masters over them ought not to be annihilated.

      "In this case, the master is not insisting for the exercise of any rigorous powers. He only demands, that he shall be intitled to the personal services of the negro, in this country, during his life. His right to this extent, at least, is not immoral or unjust; nor is it even reprobated by the municipal law of this country. A person may bind himself to a service for life; Ersk. Inst. b. 1, t. 7, § 62.

      "But, in this last place, if this is denied, the master must, at last, be permitted to compel the negro to return to the plantations, from whence he was brought; otherwise he is intirely forfeited of his right.

      "Some cases from the English law-books were adduced to show, that, in England, the master's right of property in his negro remains after he is brought into that country; Butts contra Penny, 1677; Keble's Rep. p. 3, p. 785. Gilly contra Cleves: 5th William and Mary, lord Raymond, Rep. 5, p. 147; and the opinion of two very eminent lawyers, in the year 1729, sir Phillip Yorke, then attorney-general, and Mr. Talbot, solicitor-general, in these words: 'We are of opinion, that a slave, by coming from the West-Indies, either with or without his master, to Great Britain or Ireland, doth not become free; and that his master's property or right in him is not thereby determined or varied; and baptism doth not bestow freedom on him, nor make any alteration in his temporal condition in these kingdoms. We are also of opinion, that the master may legally compel him to return to the plantations.'

      "Answered for the Negro: The only title on which any right of dominion is claimed over this African, is the institution of the municipal law of Jamaica, which authorizes the slavery of Africans brought into that island. Under that law, this negro, a child when brought into Jamaica, while he remained there, was subjected to the unjust dominion which it gives over these foreigners; but the municipal law of the colonies has no authority in this country. On grounds of equity, the Court, in some cases, gives effect to the laws of other countries; but the law of Jamaica, in this instance, will not be supported by the Court; because it is repugnant to the first principles of morality and justice.

      "Subordination, to a certain extent, is necessary; but there are certain bounds, beyond which, if any institution, subjecting one individual to another, should go, the injustice and immorality of it cannot admit of a doubt. Such is the institution of slavery, depriving men of the most essential rights that attend their existence, and which are of a nature that admit not of any equivalent to be given for them. The most express consent, given in a voluntary contract, cannot authorize the assuming of these rights, or bind the consenting party to submit to the condition of a slave. A stipulation of that kind affords intrinsic evidence of an undue advantage taken, and is therefore sufficient to void the contract.

      "But, although it were justifiable to admit of a slavery proceeding on a title of contract, of conquest, or of punishment, the law of Jamaica would not be the less unjust. In subjecting the Africans to slavery, that law requires no title under any of these grounds. The circumstances, that the negroes are brought into Jamaica, is all that is requisite to fix on them indiscriminately the condition of slavery. It is, therefore, a slavery established on force and usurpation alone, which no writer on the law of nations has vindicated as a justifiable origin of slavery.

      "If the law of Jamaica had made any distinction, or required any title to the slavery of an African, this negro would never have been reduced by it to that state. Being a child when he was brought into Jamaica, he could enter into no contract, commit no crime, and conquest cannot give a right to kill or enslave children.

      "The means by which those who carried this child from his own country got him into their hands, cannot be known; because the law of Jamaica makes no inquiry into that circumstance. But, whether he was ensnared, or bought from his parents, the iniquity is the same. - That a state of slavery has been admitted of in many nations, does not render it less unjust. Child-murder, and other crimes of a deep dye, have been authorised by the laws of different states. Tyranny, and all sorts of oppression, might be vindicated on the same grounds. - Neither can the advantages procured to this country, by the slavery of the negroes, be hearkened to, as any argument in this question, as to the justice of it. Oppression and iniquity are not palliated by the gain and advantage acquired to the authors of them. But the expediency of the institution, even for the subjects of Great Britain, is much doubted of by those who are best acquainted with the state of the colonies; and some enlightened men of modern times have thought, that sugar and tobacco might be cultivated without the slavery of negroes.

      "The dominion, therefore, given by the law of Jamaica over the pursuer, a foreigner there, being unjust, can receive no aid from the laws of this country. The modification proposed of this claim of slavery, makes no difference on the merits of the question. It is plain, that, to give the defender any right over the pursuer, the positive law of Jamaica must always be resorted to; consequently, the question recurs, Whether that law ought to be enforced beyond its territory? But a service for life, without wages, is, in fact, slavery. The law of Scotland would not support a voluntary contract in these terms; and, even where wages are stipulated, such a contract has been voided by the Court; Allan and Mearns contra Skene and Burnet, No. 5, p. 9454, voce Pactum Illicitum.

      "The answer was given to the other claim, of sending the negro out of this country, without his consent, that it supposes the dominion given over the pursuer by the law of Jamaica to be just. The negro is likewise protected against this by the statute 1701, c. 6, which expressly prohibits the carrying any persons out of the kingdom without their consent. The words are general, and apply to all persons within the realm.

      "In support of this argument for the negro, authorities of French writers were adduced, to show, that formerly, by the laws of France, negroes brought into that country from the plantations became free. This was their law, until lately, that, by special edicts, some alterations were made upon it; Denisart, tom. 3, v. Negro. On the law of England, several cases were mentioned, in which different judges had expressed opinions, that a negro coming into England is free there; 1 Salk. 666, Smith contra Brown and Cooper; Shanley contra Nalvey, in Chancery 1762; Hargrave's Arg. p. 58.

      "But the late case of Sommersett, the negro, decided in the King's-bench, in the year 1772, was chiefly relied on, and said to be in point; at least upon this question, Whether the negro could be sent out of England?

      "The Court were of opinion, that the dominion assumed over this negro, under the law of Jamaica, being unjust, could not be supported in this country to any extent: that, therefore, the defender had no right to the negro's service for any space of time, nor to send him out of the country against his consent: that the negro was likewise protected under the act 1701, c. 6. [The 'Act for preventing wrongous imprisonment, and against undue delays in Trials,' more particularly....

      ...enter their heads; they make slaves of whom they think fit. For the air of England; I think, however, it has been gradually purifying ever since the reign of Elizabeth. Mr. Dunning seems to have discovered so much, as he finds it changes a slave into a servant; though unhappily he does not think it of efficacy enough to prevent that pestilent disease reviving, the instant the poor man is obliged to quit (voluntarily quits, and legally it seems we ought to say,) this happy country. However, it has been asserted, and is now repeated by me, this air is too pure for a slave to breathe in: I trust, I shall not quit this court without certain conviction of the truth of that assertion.

      Lord Mansfield. - The question is, if the owner had a right to detain the slave, for the sending of him over to be sold in Jamaica. In five or six cases of this nature, I have known it to be accommodated by agreement between the parties: on its first coming before me, I strongly recommended it here. But if the parties will have it decided, we must give our opinion. Compassion will not, on the one hand, nor inconvenience on the other, be to decide; but the law: in which the difficulty will be principally from the inconvenience on both sides. Contract for sale of a slave is good here; the sale is a matter to which the law properly and readily attaches, and will maintain the price according to the agreement. But here the person of the slave himself is immediately the object of enquiry; which makes a very material difference. The now question is, Whether any dominion, authority or coercion can be exercised in this country, on a slave according to the American laws? The difficulty of adopting the relation, without adopting it in all its consequences, is indeed extreme; and yet, many of those consequences are absolutely contrary to the municipal law of England. We have no authority to regulate the conditions in which law shall operate. On the other hand, should we think the coercive power cannot be exercised: it is now about 50 years since the opinion given by two of the greatest men of their own or any times, (since which no contract has been brought to trial, between the masters and slaves;) the service performed by the slaves without wages, is a clear indication they did not think themselves free by coming hither. The setting 14,000 or 15,000 men at once loose by a solemn opinion, is very disagreeable in the effects it threatens. There is a case in Hobart, (Coventry and Woodfall,) where a man had contracted to go as a mariner: but the now case will not come within that decision. Mr. Steuart advances no claims on contract; he rests his whole demand on a right to the negro as slave, and mentions the purpose of detainure to be the sending of him over to be sold in Jamaica. If the parties will have judgment, 'fiat justitia, ruat coelum;' let justice be done whatever be the consequence. 50l. a-head may not be a high price; then a loss follows to the proprietors of above 700,000l. sterling. How would the law stand with respect to their settlement; their wages? How many actions for any slight coercion by the master? We cannot in any of these points direct the law; the law must rule us. In these particulars, it may be matter of weighty consideration, what provisions are made or set by law. Mr. Steuart may end the question, by discharging or giving freedom to the negro. I did think at first to put the matter to a more solemn way of argument: but if my brothers agree, there seems no occasion. I do not imagine, after the point has been discussed on both sides so extremely well, any new light could be thrown on the subject. If the parties chuse to refer it to the Common Pleas, they can give themselves that satisfaction whenever they think fit. An application to parliament, if the merchants think the question of great commercial concern, is the best, and perhaps the only method of settling the point for the future. The Court is greatly obliged to the gentlemen of the bar who have spoke on the subject; and by whose care and abilities so much has been effected, that the rule of decision will be reduced to a very easy compass. I cannot omit to express particular happiness in seeing young men, just called to the bar, have been able so much to profit by their reading. I think it is right the matter should stand over; and if we are called on for a decision, proper notice shall be given.

      Trinity Term, June 22, 1772.

      Lord Mansfield. - On the part of Sommersett, the case which we gave notice should be decided this day, the Court now proceeds to give its opinion. I shall recite the return to the writ of Habeas Corpus, as the ground of our determination; omitting only words of form. The captain of the ship on board of which the negro was taken, makes his return to the writ in terms signifying that there have been, and still are, slaves to a great number in Africa; and that the trade in them is authorized by the laws and opinions of Virginia and Jamaica; that they are goods and chattels; and, as such, saleable and sold. That James Sommersett is a negro of Africa, and long before the return of the king's writ was brought to be sold, and was sold to Charles Steuart, esq. then in Jamaica, and has not been manumitted since; that Mr. Steuart, having occasion to transact business, came over hither, with an intention to return; and brought Sommersett to attend and abide with him, and to carry him back as soon as the business should be transacted. That such intention has been, and still continues; and that the negro did remain till the time of his departure in the service of his master Mr. Steuart, and quitted it without his consent; and thereupon, before the return of the king's writ, the said Charles Steuart did commit the slave on board the Anne and Mary, to safe custody, to be kept till he should set sail, and then to be taken with him to Jamaica, and there sold as a slave. And this is the cause why he, captain Knowles, who was then and now is, commander of the above vessel, then and now lying in the river of Thames, did the said negro, committed to his custody, detain; and on which he now renders him to the orders of the Court. We pay all due attention to the opinion of sir Philip Yorke, and lord chancellor Talbot, whereby they pledged themselves to the British planters, for all the legal consequences of slaves coming over to this kingdom or being baptized, recognized by lord Hardwicke, sitting as chancellor on the 19th of October, 1749, that trover would lie: that a notion had prevailed, if a negro came over, or became a Christian, he was emancipated, but no ground in law: that he and lord Talbot, when attorney and solicitor-general, were of opinion, that no such claim for freedom was valid; that though the statute of tenures had abolished villeins regardant to a manor, yet he did not conceive but that a man might still become a villein in gross, by confessing himself such in open court. We are so well agreed, that we think there is no occasion of having it argued (as I intimated an intention at first,) before all the judges, as is usual, for obvious reasons, on a return to Habeas Corpus. The only question before us is, whether the cause on the return is sufficient? If it is, the negro must be remanded; if it is not, he must be discharged. Accordingly, the return states, that the slave departed and refused to serve; whereupon he was kept, to be sold abroad. So high an act of dominion must be recognized by the law of the country where it is used. The power of a master over his slave has been extremely different, in different countries. The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory. It is so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.

  • "Slavery and Anti-Slavery: A History of the Great Struggle In Both Hemispheres; With A View of The Slavery Question In The United States" by Rev. William Goodell (New York: William Harned Pub, 1852)

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    • "But it was not won in the controversy concerning Jonathan Strong. Some informality in the proceedings led to his discharge by the Mayor. He was, however, instantly seized again by Captain Laird, (about to sail for the West Indies,) on, behalf of John Kerr, to whom Lisle had sold him. This seizure was made in the presence of the mayor and others, before whom also, Granville Sharp, with consummate generalship and promptitude, stepped up to Captain Laird, and, tapping him on the shoulder, exclaimed:

      "I charge you, in the name of the king, with an assault upon the person of Jonathan Strong, and all these are my witnesses!"

      Laird was intimidated, let go his grasp, and Sharp conveyed away the ransomed captive in triumph. This led to a suit against Sharp, the trial of which was deferred by the plaintiffs for two years, and then withdrawn, by them under charge of treble costs for the delay. "

    • "Several cases were afterwards tried, in which the slaves were set at liberty; but "none of the cases had yet been pleaded upon the broad ground, 'Whether an African slave coming into England, became free.' This great question had been studiously avoided. It was still, therefore, 1eft in doubt." Mr. Sharp continually acted on the ground that there was no legal slavery in England, though the judges had not so decided. The suspense at length became painful to both parties, and there was a general anxiety to have the controversy decided. - Clarkson, p. 42, Stuart, p. 10.

      In the meantime, some of the cases were so decided as to afford great encouragement to the slave party. An African named Thomas Lewis, had escaped from his master, Mr. Stapylton, in London. He was recaptured, and put on board a vessel for the West Indies. The vessel had reached the Downs, and was already under way, when a habeas corpus was carried on board, and the man released, and sent on shore. A bill was found against Stapylton and his two assistants, and the case was tried before the Court of King's Bench, Lord Chief Justice Mansfield presiding, the 20th of February, 1771. The jury returned a verdict of guilty: "but so fraught was Mansfield's mind, still, with the false views of the day, that he refused to proceed to judgment, and the criminals escaped."-"Against this proceeding of the Judge, as an open contempt of the laws of England, Granville Sharp prepared a strong protest." -Stuart's Memoir, p. 10."

    • Another incident, and a very remarkable one, illustrates the methods resorted to, by gentlemen of the highest standing in the legal profession, at that time, in England, to sustain the slave interest, at the expense of those great fundamental maxims of Common Law, of which they were themselves the recognized expounders, and which they could enunciate, distinctly enough, except when overawed by "the mighty wealth and influence of the West India faction," before whom, king and nobles, courts of justice, parliaments and doctors of the law, bowed down in abject submission.

      "In the beginnings of his researches, Granville Sharp had found and noted the following passage in Blackstone's Commentaries, Book I., page 123, Edition 1st-'And this spirit of liberty is so deeply implanted in. our Constitution, and rooted in our very soil, that a slave or a negro, the moment he lands in England, falls under the protection of the laws, and, with regard to all national rights, becomes eo instanti, a freeman.'

      "This passage being quoted in one of the trials, was triumphantly repelled by the opposite counsel, who produced the volume from which the quotation was made, and instead of the words as noted by Granville Sharp, read as follows: 'A negro, the moment he lands in England, falls under the protection of the laws, and so far becomes a free man, though the master's right to his service may possibly remain.'

      "Upon further investigation, it was found that, in the course of the trials, Dr. Blackstone himself had made this alteration in the subsequent editions." - Stuart's Memoir of Sharp, p. 19.

    • Such was the condition of things, when, at length, a case came before the courts that presented a fair opportunity to test the great question of legal slavery in England. This opportunity was improved, and the issue was joined.

      James Somerset "had been brought to England in November, 1769, by his master, Charles Stewart, from Virginia, and in process of time had left him. Stewart had him suddenly seized, and carried on board the Ann and Mary, Captain Knowles, in order to be taken to Jamaica, and there sold for a slave."

      "On February 7, 1772, the cause was tried in the King's Bench, before Lord Chief Justice Mansfield, aided by Justices Ashton, Welles and Ashhurst. The question at issue was ''Is every man in England entitled to the liberty of his person, unless forfeited by the laws of England?' This was affirmed by the advocates of Somerset; and Mr. Sergeant Davy, who opened his cause, broadly declared, 'that no man at this day is, or can be, a slave in England."- Stuart's Memoir, p. 11. In the course of the argument a precedent was adduced in favor of freedom. "This was the case of Cartwright, who brought a slave from Russia, and would scourge him. For this he was questioned, and it was resolved, that England was too pure an air for slaves to breathe in."-See Rushworth's Collections, p. 468. This was in the llth of Queen Elizabeth.-Ib. Lord Mansfield was evidently beginning to waver.

      "In order that time might be given for ascertaining the law fully on this head, the case was argued at three different sittings. First in January, secondly in February, and thirdly in May, 1772. And that no decision otherwise than what the law warranted, might be given, the opinion of the judges were taken on the pleadings."-Clarkson's Hist. p. 43.

      "Granville Sharp availed himself, with his usual zeal, of this interval, and, among the other measures by which he sought to obtain an equitable decision, he addressed a Letter to Lord North, dated Feb. 18th, 1772."-Stuart's Memoir, p. 12.

      In this Letter Mr. Sharp anticipates a decision of the courts against slavery, and says - "We must judge by law, not by precedent."He further intimates the illegality of slavery in the American Colonies, in the following paragraph:

      "I might indeed allege that many of the plantation laws (like every other act that contains anything which is malum in se, evil in its own nature,) are already null and void in themselves; because they want every necessary foundation to render them valid, being absolutely contradictory to the laws of reason and equity, as well as the laws of God."-Ib. p. 13.

      By this time the eyes of the British public, from the members of the administration down to the mass of the intelligent inhabitants, were fixed upon Lord Mansfield and the Court of King's Bench, awaiting, with deep interest and anxious suspense, their decision. It was a healthful scrutiny, not unfelt by the Lord Chief Justice and his associates. New and enlarged views of the nature and character of LAW had been impressed upon the nation and upon the national judiciary, by the tireless labors and profound investigations of Granville Sharp. And yet it required a desperate struggle to break away from the meshes of precedent and opinion, and restore the ascendancy of impartial and equitable law.

      "Lord Mansfield delayed judgment, and twice threw out the suggestion 'that the master might put an end to the present litigation, by manumitting the slave.' But the base suggestion was, providentially, not attended to. The judgment was demanded; and the judgment was given on Monday, 22d of June, 1772. After much lawyer-like circumlocution, Lord Mansfield decided as follows:

      "Immemorial usage preserves the memory of positive law, long after all traces of the occasion, reason, authority, and time of its introduction are lost, and in a case so odious as the condition of slaves, must be taken strictly: (tracing the subject to natural principles, the claim of slavery can never be supported.) The power claimed by this return never was in use here. We cannot say the cause set forth in this return is allowed or approved of by the laws of this kingdom, and therefore the man must be discharged."-Stuart's Memoir, p. 17.

    • The attention of Granville Sharp, some time previous, had been intensely directed to the slave trade, by a most thrilling illustration of its atrocity. The slave ship Zong, Captain Collingwood, from Africa, freighted with slaves for Jamaica, in 1781, was visited with a dreadful mortality among the slaves. Under a false pretence of scarcity of water, the captain ordered a large number of the sick slaves thrown overboard, that the loss might fall on the insurers, (as merchandize thrown overboard for the safety of the vessel,) instead of falling on the owners, if they died from sickness. The question growing out of this transaction, and before the court, in 1783, was not concerning the murder of these men, but simply whether the owners or the insurers should lose the pecuniary amount of their value! The Solicitor-General, J. Lee, said:

      "This is a case of goods and chattels. It is really so; it is a case of throwing over goods, for, to this purpose, and for the purpose of insurance, they are goods and property; whether right or wrong, we have nothing to do with it."

      Lord Mansfield said:

      "The matter left to the jury is-"Was it from necessity? for they (the court) had no doubt (though it shocks one very much) that the case of slaves is the same as if horses had been thrown overboard. It is a very shocking case."

      The verdict of the jury, on the first trial, was for the captain and owners. A new trial was granted, and the insurers gained their cause. But no criminal prosecution could be had against the murderers! Any such accusation, legal gentlemen agreed, "would argue nothing less than madness!"-Clarkson's History, p. 45. Stuart's Memoirs, pp. 29-31.

      Granville Sharp "was present at this trial, and procured the attendance of a short-hand writer, to take down the facts," "which he communicated to the public afterwards. He communicated them also, with a copy of the trial, to the Lords of the Admiralty, as guardians of justice on the high seas, and to the Duke of Portland, as Minister of State. No notice, however, was taken, by any of these, of the information which had thus been sent to them."-Clarkson, p. 46

  • Thomas Jefferson [1743-1826] said: "The whole commerce between master and slave, is a perpetual exercise of the most boisterous passions; the most unremitting despotisms, on the one part, and degrading submissions on the other." "I tremble for my country, when I reflect, that God is just, that his justice cannot sleep forever." - Notes on Virginia.

  • John Locke [1632-1704] said: "Slavery is so vile, so miserable an estate of man, and so directly opposite to the generous temper and courage of our nation, that it is hard to be conceived that an Englishman, much less a gentleman, should plead for it." - Essay on Government.

  • Granville Sharp

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    • Sharp was Possibly the Most Prominent of the Abolitionists and today, is certainly the most celebrated. Sharp wrote numerous articles about slavery, religious history and now and then turned his hand to Social theory.

      He was born in Durham on 10 November 1735 and was one of eight children

    • Sharp went on to fight the cases of a great many slaves . He was the chairman of the 'Society for the Abolition of the Slave Trade' informed of the kidnaping of Henry Demane thanks (indirectly) to Ottobah Cugganno. Demane was saved from transportation to the Plantations.
      In 1769 he Published "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"
      This Challenged the country's legal establishment declaring that legally " As soon as a Negro comes into England he becomes Free"
      Eventually though would come his most famous case where he represented James Somerset. In What for ever more would become known as the "Somerset ruling" Sharp fought and won a battle which allowed Somerset to stay in England. Even though his master, A Virginia planter wanted to take him back to the plantations in the west Indies.
      Sharp argued that everyone coming into this country was subject to its laws and protection. Somerset had run away and then been recaptured by his master, that was kidnapping, according to James Mansfield Part of Sharps legal team, Not Lord Mansfield the case Judge) Somerset had every right to abscond because he was only property in the West Indies not here in England.
      After much deliberation Lord Mansfield found in favour of Somerset and Sharp won the case, However many people misunderstood the ruling believing that the ruling meant that all the Slaves in Britain were automatically Free.
      What it in fact meant was that the masters could not legally force a slave to leave the country against his own will.

  • Early anti-slavery cases in England

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    • In "1102 a council held in London saw fit to decree: 'Let no one hereafter presume to engage in that nefarious trade in which hitherto in England men were usually sold like brute animals.'" See New Catholic Encyclopedia, Vol 13 (New York: McGraw-Hill Book Co, 1967), p 284. (More Details.) For centuries, there is no record of noncompliance. Then in 1569, an enslaving incident was attempted.

      A lawsuit resulted. In that case, Matter of Cartwright, 11 Elizabeth; 2 Rushworth's Coll 468 (1569), a court found slavery unconstitutional, saying, "England was too pure an air for slaves to breathe in," Goodell, supra, p 50.

      This precedent was confirmed two centuries later. In Shanley v Hervey, 2 Eden 126 (Chancery, March 1762), a court said that "As soon as a man puts foot on English ground, he is free: a Negro may maintain an action against his master for ill usage [modern term, reparations], and may have a Habeas Corpus, if restrained of his liberty."

      In Smith v Brown and Cooper, 2 Ld Raym 1274; 2 Salk 666; 91 Eng Rep 566 (1765), Chief Justice Holt said "that as soon as a negro comes into England, he becomes free: one may be a villein in England, but not a slave." Goodell, supra, p 48.

      But since slavery was occurring, just as civil rights violations did in the U.S. despite the Constitution, a "class action" case came about, on a writ of habeas corpus. An alien (James Somerset) taken from the colonies to England, 7 Mass Hist Soc Proc 322-326, used that ancient English common law writ to challenge his enslavement.

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    • In the course of the argument a precedent was adduced in favor of freedom. "This was the case of Cartwright, who brought a slave from Russia, and would scourge him. For this he was questioned, and it was resolved, that England was too pure an air for slaves to breathe in."—See Rushworth's Collections, p. 468. This was in the llth of Queen Elizabeth.—Ib. Lord Mansfield was evidently beginning to waver.

      "In order that time might be given for ascertaining the law fully on this head, the case was argued at three different sittings. First in January, secondly in February, and thirdly in May, 1772. And that no decision otherwise than what the law warranted, might be given, the opinion of the judges were taken on the pleadings."-Clarkson's Hist. p. 43.

      "Granville Sharp availed himself, with his usual zeal, of this interval, and, among the other measures by which he sought to obtain an equitable decision, he addressed a Letter to Lord North, dated Feb. 18th, 1772."-Stuart's Memoir, p. 12.

      In this Letter Mr. Sharp anticipates a decision of the courts against slavery, and says-"We must judge by law, not by precedent."-He further intimates the illegality of slavery in the American Colonies, in the following paragraph:

      "I might indeed allege that many of the plantation laws (like every other act that contains anything which is malum in se, evil in its own nature,) are already null and void in themselves; because they want every necessary foundation to render them valid, being absolutely contradictory to the laws of reason and equity, as well as the laws of God."-Ib. p. 13.

      By this time the eyes of the British public, from the members of the administration down to the mass of the intelligent inhabitants, were fixed upon Lord Mansfield and the Court of King's Bench, awaiting, with deep interest and anxious suspense, their decision. It was a healthful scrutiny, not unfelt by the Lord Chief Justice and his associates. New and enlarged views of the nature and character of LAW had been impressed upon the nation and upon the national judiciary, by the tireless labors and profound investigations of Granville Sharp. And yet it required a desperate struggle to

      break away from the meshes of precedent and opinion, and restore the ascendancy of impartial and equitable law.

      "Lord Mansfield delayed judgment, and twice threw out the suggestion 'that the master might put an end to the present litigation, by manumitting the slave.' But the base suggestion was, providentially, not attended to. The judgment was demanded; and the judgment was given on Monday, 22d of June, 1772. After much lawyer-like circumlocution, Lord Mansfield decided as follows:

      "Immemorial usage preserves the memory of positive law, long after all traces of the occasion, reason, authority, and time of its introduction are lost, and in a case so odious as the condition of slaves, must be taken strictly: (tracing the subject to natural principles, the claim of slavery can never be supported.) The power claimed by this return never was in use here. We cannot say the cause set forth in this return is allowed or approved of by the laws of this kingdom, and therefore the man must be discharged."-Stuart's Memoir, p. 17.

      "Mr. Sharp felt it his duty, immediately after this trial, to write" (again) "to Lord North, then principal minister of State, warning him, in the most earnest manner, to abolish, immediately, both the slave trade and the slavery of the human species, 11 ALL THE BRITISH DOMINIONS, as utterly irreconcilable with the principles of the BRITISH CONSTITUTION, and the established religion of the land."-Clarkson's Hist., p. 44.

      The measure here insisted on by Granville Sharp, was evidently required by the decision of the Somerset case, and had it been carried into effect, at that time, there would have been no slavery now in the United States.

      Mr. Clarkson awards much credit to the counsel employed on this trial, Davy, Glynn, Hargrave, Mansfield, and Alleyne, but chiefly to Granville Sharp, "who became the first great actor in it, who devoted his time, his talents, and his substance to this Christian undertaking, and by whose laborious researches the very pleaders themselves were instructed and benefited."-p. 44.

Thomas Jefferson on Lord Mansfield

  • COPYRIGHT C.P.U. - Creators, Proprietors & Users - Journal of Arts Management, Law & Society

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    • And, with respect to the copyright monopoly and the 1774 reasoning of Chief Justice Mansfield in Millar v. Taylor,

      Thomas Jefferson, in 1788, exclaimed: "I hold it essential in America to forbid that any English decision which has happened since the accession of Lord Mansfield to the bench, should ever be cited in a court; because, though there have come many good ones from him, yet there is so much sly poison instilled into a great part of them, that it is better to proscribe the whole."

    • A number of cases were brought to court by printers/ booksellers/publishers during the 1750's and 1760s to gain recognition of a common law copyright independent of the statutory rights established by the Statute of Queen Anne. Publishers argued that an author is entitled to enjoy the fruit of his labor, just like all other forms of property - in perpetuity. A publisher, being merely an assignee of the rights of the author, should therefore also enjoy such rights in perpetuity independent of statute. It was not, however, until 1769 that a definitive legal decision was rendered on the issue in Millar v. Taylor:

      The court of King's Bench, the highest court of the common law, divided on the question, the majority supporting Lord Mansfield, who went to the furthest possible extreme in his identification of the right of exclusive copying and selling the copies of one's manuscript with the right of exclusive holding and selling physical things and their products… copyright … like the ownership of physical objects, the perpetual property of the author, his heirs and assigns forever. This outcome Mansfield expressly contemplated, saying, "property of the copy thus narrowed (i.e. defined as a common-law right] may equally go down from generation to generation, and possibly continue forever." This conclusion was vigorously protested by Justice Yates, the only dissenting justice, saying, "This claim of a perpetual monopoly is by no means warranted by the general principles of property."
      (Commons 1924: 275)

      Sir William Blackstone contributed to the plaintiffs' cause. Blackstone had previously published Commentaries on the Laws of England in 1767 in which he interpreted copyright for the first time as a legal concept (Blackstone 1771: 400-407). Using Lockean natural law theory (Locke 1690), he described copyright as a kind of personal property in common law on the ground that any kind of published work is based on the author's brainwork. This became known as ‘the sweat of the brow’ theory.

      The plot of the booksellers was, however, ultimately defeated in 1774 by the decision of the House of Lords in Donaldson v. Beckett. It was this decision that established the basic concept of Anglo-American copyright. When an author fixed his creation on a tangible medium, he obtained a common law right that is eternal in nature. However, he lost this common law right with publication, or, ‘dedication to the public’. In effect, the House of Lords accepted the dissenting opinion and reasoning of Justice Yates in Millar v. Taylor:

      Mr. Justice Yates had very clear and definite notions as to the limits of property, but a reference which he makes to the civil law throws a stronger light on his view of the whole subject than any of his direct reasoning. What the Institutes have to say relating to "wild animals," he observes, "is very applicable to this case." And he then proceeds to draw a comparison between these two singularly related subjects. Animals ferae naturae are yours "while they continue in your possession, but no longer. " So those wild and volatile objects which we call ideas are yours as long as they are properly kenneled in the mind. Once unchain or publish them, and they "become incapable of being any longer a subject of property; all mankind are equally entitled to read them; and every reader becomes as fully possessed of all the ideas as the author himself ever was."
      (Sedgwick 1879)

      There are number of implications to this decision, implications that haunt copyright to this day.

    • The ‘rationalizing’ tendencies of the French Revolution went much further than that of the American. This was reinforced by Napoleon. An example of his continuing ‘rationalizing’ influence on the daily life of each and every American is driving on the right-hand side of the road:

      Perhaps most extraordinary of all was his insistence in the interest of speed that everybody keep to the right-hand side of the road in order to expedite and simplify traffic problems. Where his armies went, right-hand driving has remained, even in Russia. He never got to Sweden, and the Swedes didn’t switch until 1967. He never got to England, and they still drive on the left-hand side
      (McLuhan, Fiore 1968: 106).

    • Why is this happening and where is the public interest in this tidal wave of legislation?

      Our current copyright law is based on a model devised for print media, and expanded with some difficulty to embrace a world that includes live, filmed and taped performances, broadcast media, and, most recently, digital media. That much is uncontroversial. The suitability of that model for new media is much more controversial. As one might expect, to the extent that current legal rules make some parties "haves" and others "have-nots," the haves are fans of the current model, while today's have-nots suggest that some other model might be more appropriate for the future. Meanwhile, copyright lawyers, who, after all, make their livings interpreting and applying this long and complex body of counterintuitive, bewildering rules, insist that the current model is very close to the platonic ideal, and should under no circumstances be jettisoned in favor of some untried and untrue replacement
      (Litman 1996).

    • Another right recognized by the Berne Convention is the ‘public lending right’ currently recognized by more than 19 countries around the world including Canada. Canadian public lending rights (PLRs) are granted for books written by Canadian authors and held in Canadian libraries. PLRs assume the public benefits from libraries but authors suffer lost sales. Therefore, market failure exists justifying a public policy response. PLRs compensate authors from a special federal fund. Payment is capped so no one author receives too much. Payment is restricted to Canadians and goes directly to the creator and cannot be transferred to Proprietors.

  • Early slavery history of England

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      As church action against slavery naturally follows and grows out of religious teachings and testimonies against the sin of slavery, so judicial and legislative action against the practice, naturally follows and grows out of both the preceding. The laws of a country are an index, to a great extent, of the prevalent religion of a country, and it is difficult, if not impossible, to maintain, for any length of time, a code of laws that essentially conflict with the religion of the people.

      From the records of early religious testimony and action against slavery, we come to those of judicial action.

      The first laborer in this department of benevolent enterprise, in England, says Clarkson, was Granville Sharp, "distinguished from those who preceded him in this particular, that whereas they were only writers, he was both a writer and an actor in the cause." His first effort in 1767, for the release of an individual slave, was followed, not long afterwards, by systematic endeavors to overthrow slavery itself in the British dominions, and particularly in England.

      The introduction of slavery into England, appears to have been upon the same foundation, (in respect to its legality,) as its introduction into the North American colonies. That is, it was done without the authority of any direct statute; and it was done in the presence and in palpable violation of English Common Law. If it could plead any legal warranty, it was that of the royal permission to transport Africans "with their own free consent," into the colonies, and the Act of Parliament " for extending and improving the trade to Africa," which prohibited "any violence to the natives."

      How early slaves were introduced into England, we cannot exactly determine. "Before the year 1700," says Clarkson, "planters, merchants, and others, resident in the West Indies, but coming to England, were accustomed to bring with them certain slaves, to act as servants with them during their stay." They frequently absconded, and were sometimes seized and sent back by force.

      A sentiment had come down from former ages that Christians could not enslave Christians, and that as soon as an Englishman's slave was baptized, he became free. In consequence of this sentiment, it became common for pious clergymen to baptize all the slaves they could, providing "god-fathers" for them, according to the usages of the Church of England. These god-fathers were in the habit of vindicating their high claim to the title, by espousing the cause of their god-children, and demanding their freedom. For a time, this held the slave-masters in check, as they were "afraid to carry off their slaves by force, and equally afraid to bring any of the cases before a public court."

      "In this dilemma, they applied, in 1729, to York and Talbot, the Attorney and Solicitor-General, for the time being, and obtained from them, the following strange opinion: - 'We are of opinion that a slave, by coming from the West Indies into Great Britain or Ireland, either with or without his master, does not become free, and that his master's right and property in him is not thereby determined or varied, and that baptism doth not bestow freedom upon him, or make any alteration in his temporal condition, in these kingdoms. We are also of opinion that the master may legally compel him to return again, to the plantations.'"

      "This cruel and illegal opinion was delivered in 1729. The planters, merchants, and others, gave it, of course, all the publicity in their power; and the consequences were as might easily have been apprehended. In a little time, slaves absconding, were advertised in the London papers, as runaways, and rewards offered for the apprehension of them; in the same brutal manner as we find them advertised in the land of slavery. They were advertised, also, in the same papers, to be sold at auction, sometimes by themselves, and at others, with horses, chaises, and harness. They were seized also by their masters, or by persons employed by them, in the very streets, and dragged from thence to the ships; and so unprotected, now, were these poor slaves, that persons, no wise concerned with them, began to institute a trade in their persons, making agreements with captains of ships, going to the West Indies, to put them on board at a certain price." This "shows, as all history does, that where there is a market for the persons of human beings, all kind of enormities will be practiced to obtain them."-Clarkson's History, &c., pp. 38-9.

    • Ed. Note: Full Citation: Clarkson, Thomas [1760-1846], The History of the Rise, Progress, and Accomplishment of the Abolition of the African Slave-Trade by the British Parliament (New York: J.S. Taylor, 1836; and London: J.W. Parker, 1839).

  • Common Law: Standard Black's Law Dictionary and Court Definitions Pertinent To The Subject Of These Medicolegal Webpages

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    • 40. "Common Law." The "common law" comes from the time before Congress and state legislatures even existed. Obviously our ancestors had laws, even before such officials even existed. The term "common law" refers to this aspect of what they had, and is defined as follows:

      "As distinguished from statutory law created by the enactment of legislatures, the common law comprises the body of those principles and rules of action, relating to the government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs; and in this sense, particularly the ancient unwritten law of England. In general, it is a body of law that develops and derives through judicial decisions, as distinguished from legislative enactments. The 'common law' is all the statutory and case law background of England and the American colonies before the American revolution. People v Rehman, 253 Cal App 2d 119; 61 Cal Rptr 65, 85 [2 Aug 1967]. It consists of those principles, usage and rules of action applicable to government and security of persons and property which do not rest for their authority upon any express and positive declaration of the will of the legislature. Bishop v U.S., D C Tex, 334 F Supp 415, 418 [31 May 1971]." Black's Law Dictionary, 6th ed., supra, p 276, and other references, e.g., Martin v Superior Court, 176 Cal 289, 292-293; 168 P 135, 136-137 (11 Oct 1917) and LRA 1918B, 313.

    • 41. "Federal Common Law is "A body of decisional law developed by the federal courts. The application of this body of common law is limited by the Erie doctrine and by the Rules of Decision Act [28 USC § 1652 (1789)], which provides that except for cases governed by the Constitution, the treaties of the United States, or acts of Congress, federal courts are to apply state law. . . . Erie R Co v Tompkins, 304 US 64, 58 S Ct 817; 82 L Ed 2d 1188 [1938]." Black's Law Dictionary, 6th ed., supra, p 610.

  • Slavery as the primary cause of the American Civil War

    • Quotes on also slaving of whites, Slavery Extended To White Women, etc.

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    • Incidently, this extreme unconstitutional and immoral opposition by the Supreme Court to the Constitution's clauses against slavery, was a factor in Lincoln's Emancipation Proclamation. People would sue then as now; Lincoln knew that if he simply honestly cited Art 2 § 3 ("take care that the laws be faithfully executed"), the immoral Supreme Court, or undeed any hostile court, might declare his taking such "care" meaningless or unconstitutional.

      So when Pres. Lincoln issued the above-cited Emancipation Proclamation, he carefully made it a purely military order in his capacity as Art 2 § 2 Commander-in-Chief. It is well-established that armies can capture enemy personnel and confiscate enemy property, e.g., troops' weapons, indeed, whatever they use to make war. As the Confederacy was calling itself a separate nation, and calling slaves "property," using them to carry on the war effort, Lincoln could take them at their word! (and of course, note that they were using slaves for military purposes, themselves citing slavery as the only cause of the war).

      So he carefully worded the Emancipation Proclamation to be a typical military order, only capturing / confiscating "property" (freeing slaves) in enemy territory or battle staging areas! Lincoln thus wisely made it unlikely that the Supreme Court could overrule it. Lincoln could not know that the dishonest Taney would die the next year, and that he (Lincoln) could then replace him with a more honest person, Salmon P. Chase.

      Chase was a long-time abolitionist who had already supported in the Birney case, supra, and would foreseeably continue to uphold, the Constitution's many anti-slavery clauses. He would foreseeably, as Chief Justice, agree that it was about time someone in the White House "take care that the laws be faithfully executed" against slavery! When a property seizure case did come to the Supreme Court under Chase, he did rule pursuant to the standard law commonly known, that such seizures are lawful in wartime, U.S. v Alexander, 69 US (2 Wallace) 404; 17 L Ed 915 (10 March 1865).

      In one Emancipation-Proclamation-related case, a court specifically ruled the Emancipation Proclamation a war measure, upholding its constitutionality, and noting that pursuant to international law (cited in authoritative texts of the era, e.g., Wheaton, Henry, Elements of International Law: 2nd annotated ed. by William Beach Lawrence [London: S. Low, 1863], p 604, specifically cited by Dorris v Grace, 24 Ark 326, supra), a nation at war can legally take any measure to strengthen itself or weaken its enemy, Buie v Parker, 63 NC 131, 146, supra.

      The other cases listed, also had the Emancipation Proclamation as an issue (in context of cases on e.g., mortgages, inheritances, crime prosecutions, etc.) and deemed it proprio vigore (what it said it was, a war measure effective progressively by force of arms). (This was so even in cases such as Andrews v Page, 50 Tenn 653, supra, denouncing it (the Proclamation) as unconstitutional, and blaming the abolitionists!) Truly Lincoln had written it carefully and well to preclude its being overridden by courts! And helped end the unawareness of rights, that he had lamented a decade earlier.

    • The multiple legal facts herein cited establish the moral and legal validity of efforts (e.g., Nat Turner's August 1831 in Virginia, Capt. Jonathan Walker's in 1844, Drayton-Sayres' in April 1848, and John Brown's 16 Oct 1859 at Harper's Ferry) to do what the government was not doing, not taking "care that the laws be faithfully executed," not enforcing the constitutional laws freeing slaves (themselves uninformed of their right to freedom). When the government does not enforce the laws, others may legally do so. A pertinent precedent is the case of United States v McCardle, 3 Am St Trials 303-305; Wheeler's Crim Cas (NY, 18 Dec 1822). In that case, a person (like Nat Turner and John Brown) rescued two women being unlawfully detained. In court, the rescuer was upheld for doing so; and the opponent (woman-detainer / 'slaver') was criminally proscuted!

      The message for the Turner and Brown cases is clear. Where vile, base, morally depraved judges (such as the degenerates in Virginia), would not issue writs of habeas corpus to free illegally detained people, others (e.g., Brown) can act to enforce their legal rights. The concept of such action enforcement is called "private attorney general," a concept upheld anew a century later by a more honest Supreme Court.

      It explained that such "private attorney general" enforcement is being done "not for himself alone [or at all] but [for others] as a 'private attorney general' vindicating a policy that [the Constitution writers] considered of the highest priority." Newman v Piggie Park Enterprises, 390 US 400; 88 S Ct 964, 966; 19 L Ed 2d 1263, 1265 (1969); Oatis v Crown Zellerbach Corp, 398 F2d 496, 499 (CA 5, 1968); and Jenkins v United Gas Corp, 400 F2d 28, 33 n 10 (CA 5, 1968). In such a case, there is therefore no de jure intent by the enforcer to violate the law, as his purpose is to secure enforcement of the supreme law, the Constitution.

      Virginia's vile, depraved, immoral arresting officers, prosecutors, judges and juries that prosecuted Nat Turner, John Brown, and others, were therefore clearly not only constitutionally and legally wrong, but also morally unregenerate, vile, and depraved, taking their unconstitutional actions for the specific purpose of enforcing rape, torture, murder, and like depravities. As in McCardle, supra, they were the ones who should have been arrested and prosecuted. But as vile unregenerates, they ignored pro-morals precedents such as McCardle, supra.

    • Southerners' ignorance was due to reasons including the overwhelming censorship in the South. The South had an "uncompromising attitude that had produced in the South a complete suppression of freedom of speech and freedom of the press so far as slavery was concerned."

      Southern censorship banned, for example, Hinton Rowan Helper's The Impending Crisis (1857). That book was "an economic argument attacking slavery as responsible for the backwardness and poverty of the poor whites and small farmers in the South. Helper was forced to leave his North Carolina home in spite of his denial of abolitionism and his personal lack of sympathy for the Negro. His book created a sensation in the North but was effectively banned in the South, where by 1857 even to read expressions of opposition to slavery had come to be regarded by many as an act of treason to the established order."'Roy P. Basler, A Short History of the American Civil War (New York: Basic Books, Inc, 1967), p 15.

    • As America had rejected monarchy (rule by kings), Article I § 9 and Art. I § 10 ban "nobility" (a master concept). Spooner, supra, p 169. "Servitude [is] the state of voluntary or compulsory subjection to a master." Hodges v U.S., 203 US 1, 17; 27 S Ct 6; 51 L Ed 65 (1906); 58 CJ 745, 746 n 1. The word "master" was a title of nobility, i.e., from the "lord paramount" concept (dating from the monarchy and the old "divine right of kings" notions that Americans rejected). For such a state of affairs to exist, was not allowed by law, but merely derived from force, Com v Aves, 35 Mass 193 (1836), supra. To claim to be a "master" and hold a person by force = kidnapping.

    • Art 1 § 8 grants power to wage war and create a military, without limiting it to any specific group of people. (The Art 1 § 8 war power is what President Abraham Lincoln relied on in the Emancipation Proclamation, depriving the enemy of the wherewithal to wage war. He need not have cited that article, as even in peacetime, the President had emancipation authority, pursuant to Art 2 § 3, "take care that the laws be faithfully executed" (each of these constitutional laws herein cited [as e.g., Tiffany, supra, p 140, had urged]). Some black slaves had already obtained their rights and been freed in court precedents above cited, e.g., via the habeas corpus process. Now an equality clause, Art IV § 2, says, "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." This mandate included the states in the South.

      The bottom line is, says George Mellen, supra, pp 30-33, the Founding Fathers were not hypocrites, professing support of liberty while enacting bondage. They meant to, and did, establish a pro-liberty government, p 33.

      Art VI § 2 makes the Constitution "the supreme law of the land . . . anything in the Constitution or laws of any State to the contrary notwithstanding." Goodell, supra, pp 575-576; and Spooner, supra, p 270. Remember that, the Constitution is supreme. (Naturally, this supremacy enables the federal government to protect people's rights against violations by any state.)

      The effect of such legal language was to abolish slavery, if such prohibition/abolition had not been sooner effected by, e.g., litigation pursuant to the already existing common law and Declaration of Independence. Goodell, supra, pp 84-85 and 574-577, citing, e.g., 3 Madison Papers 1429 and 1569; 2 Elliott's Debates 452 and 484; 3 Elliott's Debates 598; and Debates of the Virginia Convention, p 463. Indeed, while the Constitutional Convention was in session in 1787,

      "the Old Congress passed an ordinance abolishing slavery in the North-Western Territories, and precluding its future introduction there. The first Congress under the new Constitution ratified this ordinance . . . the ratification in the new Congress received the vote of every member except Mr. Yates, of New York, the entire Southern delegation voting for its adoption. By this ordinance slavery was excluded from Ohio, Indiana, Illinois, Michigan, Wisconsin, and Iowa." Goodell, pp 83 and 574; Spooner, supra, p 288; and, later cited, "Speech at Peoria, 16 Oct 1854," Nicolay, John G. and John Hay, eds., Complete Works of Abraham Lincoln, Vol II (New York: Francis D. Tandy Co, 1894 and 1905), p 194.

      (The Ordinance became an issue in a subsequent court case (just as laws do now). It was UPHELD in court as having banned slavery, Jarrott v Jarrott, 7 Ill 1 [Dec 1845].)


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    • A second is, that the slave trade never was legalized; of course, the first slaves were stolen, and those who bought of the thieves, had no more legal title than they; and only continued the theft; and, therefore those who claimed to be heirs to them, had no more legal title than either; and it is nothing but continued theft, without any legal foundation to the present hour.

      A third argument is, that in 1772, four years before the declaration of Independence, Lord Mansfield, and the English court, through him [in the case of Somerset v Stewart], declared all slavery illegal throughout the British dominions; because Granville Sharp proved that the foundation principles of the English government, rendered it impossible for slavery to be legal; and those principles were, writ of habeas corpus, trial by jury, and principles of the common law. Hence, though that court had, like our own courts, declared slaves to be property, they reversed all their former decisions, and made them null and void, as our courts ought to, and I hope will do hereafter.

  • Slavery and Anti-Slavery: A History of the Great Struggle In Both Hemispheres; With A View of The Slavery Question In The United States by Rev. William Goodell (New York: William Harned Pub, 1852)

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    • Another fact is, that the common law of England was incompatible with slavery, and neither recognized nor permitted its existence.

      Another fact is, that in the year 1772, [in Somerset v Stewart] the Court of King's Bench, Lord Mansfield presiding, affirmed, in respect to England, the legal facts above stated, and decided that there neither then was, nor ever had been, any legal slavery in England.

  • A Treatise on the Unconstitutionality of American Slavery: Together With the Powers and Duties of the Federal Government In Relation to That Subject by Joel Tiffany (Cleveland, Ohio: J. Calyer, 1849)

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    • But recognizing the existence of slavery "de facto" does not legalize, sanction, or in any manner guaranty its existance.

      In 1772 the famous case of Somerset vs Stewart, was decided, by Lord Mansfield, in the Court of Kings bench, England. In his decision he held that slavery had no legal existance in England. He said,

      "So high an act of dominion must be recognized by the law of the country where it is used. The state of slavery is of such a nature that it is incapable of being introduced on any reason, moral, or political. But only by positive law. It is so odious that nothing can support it but positive law," (Howell's State Trials.)

      Previous to this decision slavery had existed in England, "de facto." The trade in men and women had constituted an important item of commerce. Laws had been passed authorizing their sale on execution; and in fact every thing had been done, by all the departments of the British Government, to regulate, recognize, and santion human slavery that they could do, short of actually establishing it by "positive law." In 1697, 8, 9, 10 William 3rd., chap. 26, the parliament of Great Britian had recognized its existance, by encouraging the slave trade, as "beneficial" and "advantageous," to the kingdom, and spoke of the importation of Negroes into England, where they were held as slaves. The act itself was entitled,"An act to settle the trade to Africa."

    • Again in 1749 the Parliament of Great Britain passed an "Act for extending and improving the trade to Africa" commencing with this preamble, "Whereas the trade to and from Africa, is very advantageous to Great Britain, and is necessary for the supplying the plantations and colonies thereunto belonging, with a sufficient number of Negroes at reasonable rates, and for that purpose the said trade ought to be open and free to all his Majesty's subjects. Therefore be it enacted &c."

      Again, it was among the early complaints of the colonies that the government of Great Britain had forced slavery upon them, by their Parliamentary enactments. Yet notwithstanding all this, it was held by Lord Mansfield, that slavery had never had a legal existance in England. That all their enactments, regulating the trade, encouraging it &c., had never sanctioned, or legalized it. And this decision virtually put an end to slavery in England. It was recognized by all "as sound law" and none were disposed to litigate the question further. So then we see that to refer to an institution, or even to pass laws regulating, and encouraging it, does not necessarily sanction, or legalize it.

      Inasmuch then, as we have seen that to recognize the existance of an institution "de facto" does not necesarily legalize it, or give any intimation as to its legal character, we are now prepared to proceed with the examination of the several provisions of the constitution, supposed by some to establish, or guaranty slavery.

  • Extract from: A Treatise on the Unconstitutionality of American Slavery: Together With the Powers and Duties of the Federal Government In Relation to That Subject by Joel Tiffany - relating to the "The rules of construction laid down by Blackstone"

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    • The rules of construction laid down by Blackstone, and referred to by Mr. Story, are simply these.—Says Blackstone,
      "The fairest and most rational method of interpreting the will of the legislator is, by exploring his intentions at the time the law was made, by signs the most natural and probable; and these signs are either the words, the context, the subject matter, the effect and consequences, and the spirit and reason of the law."

      Now take each of these rules separately and where do we find authority for the Supreme Court to take into consideration, "The history of the Times," and "National circumstances," in giving to any particular clause of the Constitution a construction?

      FIRST,- "The intention must be obtained from the words of the legislator, and they are to be understood in their most usual and known signification. They may have a technical signification in popular use. Also terms of art may be used and persons skilled in the art may be called in to give the definition of such terms." Still this does not authorize going beyond the instrument for any thing more than to get the true definition of the words used.

      SECOND,- If the words remain doubtful we are at liberty to refer to the context. This may be found in the proeme or preamble. Also in a similar law passed by the same legislator, at or about the same time Thus when the English law declares murder to be felony without benefit of Clergy, it is necessary to refer to the same law to see what benefit of clergy is.

      In this case we are only seeking for the definition of a term used in the law.

      THIRD,"we have a right to look at the subject matter. Words are always supposed to have reference to the subject matter. Thus the word "provisions," used in a statute prohibiting the purchase of nominations to benefices by the Pope, and which benefices were called "provisions," was intended to mean such benefices and not grains &c.

      FOURTH, we have a right to consider the effects and consequences &c. This is interpreted by Blackstone to mean. "Where words bear either none, or a very absurd signification if litterally understood, we must deviate a little from the true sense of the words." Thus the Bolognian Law which enacted "'That whoever drew blood in the street should be punished with the utmost severity," was held after long debate not to extend to a surgeon who opened the vein of a person who fell down in the street in a fit."

      FIFTH, We have a right to look to the reason and spirit of the law. For when the reason of the law cease, the law itself should cease. This is illustrated by Blackstone thus,
      "There was a law that those who forsook the ship in a storm, should forfeit all property therein, and that the ship and lading should belong entirely to those who staid in it. In a dangerous tempest all the mariners forsook the ship except only one sick passenger, who by reason of his disease was unable to get out, and escape. By chance, the ship came safe to port. The sick man kept possession and claimed the property. Now all the learned agree that the sick man is not within the reason of the law, for the reason of the law was to give encouragement to those who would venture their lives to save the vessel."

  • Lord Alfred Thompson Denning OM, PC - Telegraph Obituary (1899 to 1999)
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    • "THE LORD DENNING, the former Master of the Rolls who has died aged 100, was one of the outstanding judges of the century and a fearless champion of the rights of the common man. "Unlike my brother judge here, who is concerned with law," he once teased at a legal dinner, "I am concerned with justice."
      Whenever "Tom" Denning was faced with a situation that seemed to him dishonest, unjust or wrong, all his ingenuity and erudition would be directed to finding a remedy, even if the wrongdoer appeared to have the law on his side. This was particularly the case when some powerful institution seemed to be oppressing a smaller body or individual. As Master of the Rolls from 1962 to 1982 - the length of the term inspired the jest that he possessed every Christian virtue save that of resignation - Denning was well placed to combat the insolence of office."

    • To the students of Lincoln's Inn, Denning quoted with gusto Lord Chief Justice Mansfield's peroration on the freeing of slaves: "The air of England has long been too pure for a slave and every man is free who breathes it. Every man who comes to England is entitled to the protection of English law whatever the colour of his skin . . . Let the Negro be discharged."

"The Meaning of July Fourth for the Negro" - 1852 - by Frederick Douglass

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  • "What, to the American slave, is your 4th of July? I answer; a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sound of rejoicing are empty and heartless; your denunciation of tyrants brass fronted impudence; your shout of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanks-givings, with all your religious parade and solemnity, are to him, mere bombast, fraud, deception, impiety, and hypocrisy -- a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices more shocking and bloody than are the people of the United States, at this very hour."

Note Regarding Slavery-Passage in a Draft version of "The Unanimous Declaration of the Thirteen United States of America july 4, 1776"

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  • "he has waged cruel war against human nature itself, violating it's most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemispere, or to incure miserable death in their transportation hither. this piratical warfare, the opprobium of infidel powers, is the warfare of the Christian king of Great Britain. [determined to keep open a market where MEN should be bought and sold,] he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce [determining to keep open a market where MEN should be bought and sold]: and that this assemblage of horrors might want no fact of distinguished die, he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he had deprived them, by murdering the people upon whom he also obtruded them: thus paying off former crimes committed against the liberties of one people, with crimes which he urges them to commit against the lives of another."

  • Definitive Lysander Spooner Site
    • Lysander Spooner Quote: "Man, no doubt, owes many other moral duties to his fellow men; such as to feed the hungry, clothe the naked, shelter the homeless, care for the sick, protect the defenseless, assist the weak, and enlighten the ignorant. But these are simply moral duties, of which each man must be his own judge, in each particular case, as to whether, and how , and how far, he can, or will perform them."
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    • "Vices Are Not Crimes: A Vindication Of Moral Liberty" by Lysander Spooner:

      Vices  are those acts by which a man harms himself
      or his property.
      __Crimes  __are  those acts by which one man harms
      the person or property of another.
      __Vices__  are simply the errors which a man makes
      in  his  search  after  his  own happiness. Unlike
      crimes, they imply no malice toward others, and no
      interference with their persons or property.
      In  vices,  the very essence of crime --- that is,
      the  design  to  injure  the person or property of
      another --- is wanting.
      It  is  a  maxim  of  the law that there can be no
      crime  without a criminal intent; that is, without
      the  intent  to  invade  the person or property of
      another. But no one ever practises a vice with any
      such  criminal  intent.  He practises his vice for
      his  own happiness solely, and not from any malice
      toward others.

  • NO TREASON BY LYSANDER SPOONER (published 1867) (about the American Civil War)
    • "George the Third called our ancestors traitors for what they did at that time. But they were not traitors in fact, whatever he or his laws may have called them. They were not traitors in fact, because they betrayed nobody, and broke faith with nobody. They were his equals, owing him no allegiance, obedience, nor any other duty, except such as they owed to mankind at large. Their political relations with him had been purely voluntary. They had never pledged their faith to him that they would continue these relations any longer than it should please them to do so; and therefore they broke no faith in parting with him. They simply exercised their natural right of saying to him, and to the English people, that they were under no obligation to continue their political connexion with them, and that, for reasons of their own, they chose to dissolve it. [*14]
      What was true of our ancestors, is true of revolutionists in general. The monarchs and governments, from whom they choose to separate, attempt to stigmatize them as traitors. But they are not traitors in fact; in-much they betray, and break faith with, no one. Having pledged no faith, they break none. They are simply men, who, for reasons of their own --- whether good or bad, wise or unwise, is immaterial --- choose to exercise their natural right of dissolving their connexion with the governments under which they have lived. In doing this, they no more commit the crime of treason --- which necessarily implies treachery, deceit, breach of faith --- than a man commits treason when he chooses to leave a church, or any other voluntary association, with which he has been connected."

    • "The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living eighty years ago. And it can be supposed to have been a contract then only between persons who had already come to years of discretion, so as to be competent to make reasonable and obligatory contracts. Furthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. Those persons, if any, who did give their consent formally, are all dead now. Most of them have been dead forty, fifty, sixty, or seventy years. And the constitution, so far as it was their contract, died with them. They had no natural power or right to make it obligatory upon their children. It is not only plainly impossible, in the nature of things, that they could bind their posterity, but they did not even attempt to bind them. That is to say, the instrument does not purport to be an agreement between any body but "the people" then existing; nor does it, either ex- [*4] pressly or impliedly, assert any right, power, or disposition, on their part, to bind anybody but themselves. Let us see. Its language is:
      "We, the people of the United States (that is, the people then existing in the United States), in order to form a more perfect union, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."
      It is plain, in the first place, that this language, as an agreement, purports to be only what it at most really was, viz., a contract between the people then existing; and, of necessity, binding, as a contract, only upon those then existing. In the second place, the language neither expresses nor implies that they had any right or power, to bind their "posterity" to live under it. It does not say that their "posterity" will, shall, or must live under it. It only says, in effect, that their hopes and motives in adopting it were that it might prove useful to their posterity, as well as to themselves, by promoting their union, safety, tranquility, liberty, etc.
      Suppose an agreement were entered into, in this form:
      We, the people of Boston, agree to maintain a fort on Governor's Island, to protect ourselves and our posterity against invasion.
      This agreement, as an agreement, would clearly bind nobody but the people then existing. Secondly, it would assert no right, power, or disposition, on their part, to compel, their "posterity" to maintain such a fort. It would only indicate that the supposed welfare of their posterity was one of the motives that induced the original parties to enter into the agreement.
      When a man says he is building a house for himself and his posterity, he does not mean to be understood as saying that he has any thought of binding them, nor is it to be inferred that he [*5] is so foolish as to imagine that he has any right or power to bind them, to live in it. So far as they are concerned, he only means to be understood as saying that his hopes and motives, in building it, are that they, or at least some of them, may find it for their happiness to live in it.
      So when a man says he is planting a tree for himself and his posterity, he does not mean to be understood as saying that he has any thought of compelling them, nor is it to be inferred that he is such a simpleton as to imagine that he has any right or power to compel them, to eat the fruit. So far as they are concerned, he only means to say that his hopes and motives, in planting the tree, are that its fruit may be agreeable to them.
      So it was with those who originally adopted the Constitution."
    • At

  • Dred Scott v. Sandford, McClean, J
    • "No case in England appears to have been more thoroughly examined than that of Somersett. The judgment pronounced *535 by Lord Mansfield was the judgment of the Court of King's Bench. The cause was argued at great length, and with great ability, by Hargrave and others, who stood among the most eminent counsel in England. It was held under advisement from term to term, and a due sense of its importance was felt and expressed by the Bench.
      In giving the opinion of the court, Lord Mansfield said:
      'The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasion, and time itself, from whence it was created, is erased from the memory; it is of a nature that nothing can be suffered to support it but positive law.'
      He referred to the contrary opinion of Lord Hardwicke, in October, 1749, as Chancellor: 'That he and Lord Talbot, when Attorney and Solicitor General, were of opinion that no such claim, as here presented, for freedom, was valid.'
      The weight of this decision is sought to be impaired, from the terms in which it was described by the exuberant imagination of Curran. The words of Lord Mansfield, in giving the opinion of the court, were such as were fit to be used by a great judge, in a most important case. It is a sufficient answer to all objections to that judgment, that it was pronounced before the Revolution, and that it was considered by this court as the highest authority. For near a century, the decision in Somersett's case has remained the law of England. The case of the slave Grace, decided by Lord Stowell in 1827, does not, as has been supposed, overrule the judgment of Lord Mansfield. Lord Stowell held that, during the residence of the slave in England, 'No dominion, authority, or coercion, can be exercised over him.' Under another head, I shall have occasion to examine the opinion in the case of Grace.
      To the position, that slavery can only exist except under the authority of law, it is objected, that in few if in any instances has it been established by statutory enactment. This is no answer to the doctrine laid down by the court. Almost all the principles of the common law had their foundation in usage. Slavery was introduced into the colonies of this country by Great Britain at an early period of their history, and it was protected and cherished, until it became incorporated into the colonial policy. It is immaterial whether a system of slavery was introduced by express law, or otherwise, if it have the authority of law. There is no slave State where the institution is not recognized and protected by statutory enactments and judicial decisions. Slaves are made property by the laws of the slave States, and as such are liable to the claims of creditors; *536 they descend to heirs, are taxed, and in the South they are a subject of commerce."
    • At,%20mclean,%20j.htm

[Galbraith: The Great Crash: 1929] | [Galbraith: Culture of Contentment] | [Galbraith: Money]
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