Law, Liberty and the Constitution by Harry Potter

Author:Harry Potter
Language: eng
Format: epub, pdf
ISBN: 9781782045236
Publisher: Boydell & Brewer Group Ltd
Published: 2015-05-11T16:00:00+00:00

The less than precise phrase ‘by contract or the like’, may provide a clue as to what Blackstone meant. He seemed to be saying that just as a free man could voluntarily contract to serve another for many years or even for life and yet still be protected ‘in the enjoyment of his person, his liberty, and his property’, so a former slave, now a free man, was no different. He would remain a servant or apprentice, if he contracted, but not a chattel. He still retained rights under the law. This may merely have been intended to reflect Holt’s judgment in Butts v. Penny that ‘the black was not a slave but a “slavish servant”, akin to an apprentice’. For Holt, the distinction was of substance; with Blackstone it is far from clear if that was the case.

Further confusing the issue, Blackstone got into semantic difficulty. When considering the effect of baptism on the issue, he asserted that while it could not dissolve a civil contract, baptism was irrelevant, since English law ‘gives liberty, rightly understood, that is, protection, to a Jew, a Turk, or a heathen, as well as to those who profess the true religion of Christ … The slave is entitled to the same liberty in England before, as after, baptism; and, whatever service the heathen negro owed to his English master, the same is he bound to render when a Christian.’12 What did liberty under the law mean? The law protects a freed slave ‘in the enjoyment of his liberty’, he says at one point, and then defines liberty as ‘protection’ in another. How can the law protect protection?

The assertion first made in an early nineteenth-century biography of Sharp, and lazily repeated thereafter, that Blackstone capitulated to pro-slavery pressure from Mansfield is without any historical foundation.13 In a letter to Sharp, Blackstone told the abolitionist that he had

only desired not to have a passage cited from my first Edition as decisive in favour of Your Doctrine (Book I, Chap. 1) which I thought had been sufficiently explained in Chap. 14; but when I found it had been misunderstood both by yourself and others, I found it necessary to explain it more fully in my subsequent Editions.

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