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A Legal Tourist Visits Eighteenth-Century Britain: Henry Marchant's Observations on British Courts, 1771 to 1772

Published online by Cambridge University Press:  14 February 2011

Extract

At the Rhode Island Historical Society there is a copy of an amazing journal, kept by Henry Marchant (1741–1796) during his eleven-month sojourn in England and Scotland as a colonial agent for Rhode Island. He was a practicing lawyer who had the first-hand opportunity to observe law as it operated on both sides of the Atlantic in the eighteenth century. He was not the only lawyer to do so, but his background as a trial lawyer made his perceptions differ substantially from those of the many colonial law students who received their legal educations in England. Dozens of young colonists ventured from home to London for the legal training and social polish twelve terms at the Inns of Court could provide; their legal notebooks record activities at the Westminster courts as students saw them, learning the law one case at a time, before they returned to the colonies and went into practice. A few more experienced lawyers, such as John Adams, likewise had the opportunity to visit Westminster Hall, but they typically went once or twice, and did not return.

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Copyright © the American Society for Legal History, Inc. 2011

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References

1. The full title of the journal is the “Journell of [a] Voyage from Newport in the Colony of Rhode Island &c to London, Travels thro' many Parts of England & Scotland—begun July 8th 1771,” hereafter referred to as the “Marchant Journal”. The original journal remains in the possession of the Marchant descendants. A microfilm (B/M332) is deposited at the Rhode Island Historical Society. Another copy of this journal can be examined at the American Philosophical Society in Philadelphia.

2. Lovejoy, David S., “Henry Marchant and the Mistress of the World,” William and Mary Quarterly 3rd ser., 12 (1955): 375–98CrossRefGoogle Scholar.

3. Cole, John N., “Henry Marchant's Journal, 1771–1772,” Rhode Island History 57 (1999): 3055Google Scholar.

4. The debate on the accuracy of the various accounts of Mansfield's opinion and the hearings is the subject of Oldham, James C., “New Light on Mansfield and Slavery,” Journal of British Studies 27 (January 1988): 4568Google Scholar. He elaborates further in The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century, 2 vols. (Chapel Hill: University of North Carolina Press, 1992)Google Scholar, introduction and chapter 21. William Wiecek's earlier article, which favors the Lofft account, is also an important source on this debate, although Oldham uncovered a source unknown to Wiecek. See Wiecek, , “Somerset: Lord Mansfield and the Legitimacy of Slavery in the Anglo-American World,” University of Chicago Law Review 42 (1974): 86145Google Scholar. Wiecek based his account of Davy's argument on February 7 on a transcript of the case written by Granville Sharp, available at the New-York Historical Society (ibid., 104–5). Neither Oldham nor Wiecek had access to the Marchant journal prior to their publications. Although aware of Marchant's diary, George Van Cleve used it only as background for his larger discussion of the accuracy of conflicting interpretations of the Somerset v. Stewart opinion. See Cleve, Van, “Somerset's Case Revisited: Somerset's Case and Its Antecedents in Imperial Perspective,” Law and History Review 24 (2006): 601–46Google Scholar.

5. Potter, Elisha, Memoir Concerning the French Settlements and French Settlers in the Colony of Rhode Island (Providence: Sidney Rider, 1879), 130Google Scholar. Copy consulted at the Newport Historical Society, as part of their tract series (listed as Tract No.5).

6. Banks, Charles E., The History of Martha's Vineyard Dukes County Massachusetts in Three Volumes: Volume III: Family Genealogies (Edgartown: Dukes County Historical Society, 1925), 292Google Scholar.

7. Southern elite families were more willing than northern ones in the eighteenth century to send their children overseas for higher education. On the history of education in this period more generally, see Bailyn, Bernard, Education in the Forming of American Society: Needs and Opportunities for Study (New York: Vintage Books, 1960)Google Scholar, Flavell, Julie, When London was Capital of America (New Haven: Yale University Press, 2010)Google Scholar.

8. Mason, George C., Annals of the Redwood Library and Athenaeum, Newport Rhode Island (Newport: Redwood Library, 1891), 52Google Scholar.

9. Sibley, John, Biographical Sketches of Graduates of Harvard University, in Cambridge Massachusetts, 18 vols. (Boston: Massachusetts Historical Society, 1873–1999)Google Scholar, 14: 456–64.

10. The “young rebel lawyers” can be found in Lovejoy, David S., “Henry Marchant and the Mistress of the World,” William and Mary Quarterly 3rd ser., 12 (1955): 376CrossRefGoogle Scholar. Marchant feared that the Boston Massacre, and the trial which followed it, would be too much for his former teacher, suggesting that Trowbridge may have retired into private life for reasons of ill-health rather than because of monarchical leanings, as has been suggested elsewhere. Henry Marchant to Francis Dana, March 20, 1770 (f.81, Henry Marchant Letterbook 1769–1771, Rhode Island Historical Society). The letterbook survived by chance; it was discovered jammed between the floorboards of a store in Newport in approximately 1905. See newspaper clipping from August 20, 1946, “Life of Revolutionary Lawyer Reviewed: Historical Society Told of Henry Marchant” containing an interview with Lloyd Robson about the discovery. “Henry Marchant” folder, Newport Historical Society.

11. “Edmund Trowbridge,” Sibley, Biographical Sketches, 8: 507–10.

12. Francis Dana to Henry Marchant, December 27, 1770 (Marchant Correspondence, Rhode Island Historical Society).

13. Banks, The History of Martha's Vineyard Dukes County Massachusetts in Three Volumes, 3:294–5. The volume omits mentioning the son who died during Marchant's absence in England.

14. Biographical Directory of the United States Congress 1774–1971 (Washington: Government Printing Office, 1971), 1336Google Scholar.

15. Sibley, Biographical Sketches, 14: 456–64.

16. Sibley, Biographical Sketches, 14: 456.

17. Sibley, Biographical Sketches, 14: 457. See also Updike, Wilkins, Memoirs of the Rhode-Island Bar (Boston: Thomas H. Webb, 1842), 8389Google Scholar, upon which Sibley drew for much of his material. For further biographical material, see Dictionary of American Biography, 20 vols. (New York: Charles Scribner's Sons, 1928–1986)Google Scholar 12: 271–72; Who Was Who in America: Historical Volume (Chicago: Marquis, 1967), 402Google Scholar.

18. Biographical Directory of the United States Congress 1774–1971 (Washington: Government Printing Office, 1971), 1336Google Scholar.

19. Lovejoy, “Henry Marchant and the Mistress of the World,” 376–377.

20. Cole, John N., “Henry Marchant's Journal, 1771–1772,” Rhode Island History 57 (1999): 31Google Scholar; Lovejoy, “Henry Marchant and the Mistress of the World,” 378.

21. Kammen, Michael G., “The Colonial Agents, English Politics and the American Revolution,” William and Mary Quarterly 3rd ser., 22 (1965): 245CrossRefGoogle Scholar; Lovejoy, “Henry Marchant and the Mistress of the World,” 379.

22. Marchant would also be caught up in Freebody v. Brenton et al., which had set the Rhode Island courts against those in England in a struggle for both judicial supremacy and control over local currency affairs. The complex politics surrounding this case are covered well by Lovejoy (see “Henry Marchant and the Mistress of the World,” 375–98). For details of the decision see Smith, Joseph H., Appeals to the Privy Council from the American Plantations (New York: Octagon Books, 1965), 339Google Scholar, and the prior sequence of appeals to the Privy Council are recounted in Cole, “Henry Marchant's Journal,” 33–4.

23. Henry Marchant to William Hancock, April 14, 1770 (f. 87, Henry Marchant Letterbook 1769–1771, Rhode Island Historical Society).

24. Memorandum between Henry Marchant and William Ellery, May 1, 1771 (Marchant Correspondence, Rhode Island Historical Society). Richard Aldrich was entrusted to finish another legal matter; the division of legal work Marchant left behind may have reflected the different venues where he argued cases. Henry Marchant to Walter Franklin, June 1, 1771 (f.281–82, Henry Marchant Letterbook 1769–1771, Rhode Island Historical Society). Ellery was the son and namesake of another William Ellery, who had initially recommended Marchant to be trained by Trowbridge years before. This series of relationships is documented in William Ellery [Senior] to Edmund Trowbridge, May 5, 1771 (Henry Marchant Copybook of Letters of Introduction, Rhode Island Historical Society). William Ellery's other son Benjamin also studied at Harvard as a member of the same class as his brother (1747), and married into the Redwood family that founded the library of the same name. See Sibley, Biographical Sketches, 12: 131–33.

25. Henry Marchant to “Dear Billy,” [William Ellery], November 21, 1770 (Henry Marchant correspondence, Newport Historical Society).

26. Sibley, Biographical Sketches, 12: 135–40.

27. See Bilder, Mary, The Transatlantic Constitution: Colonial Legal Culture and the Empire (Cambridge: Harvard University Press, 2004)Google Scholar, where virtually all cases appealed overseas were for large sums.

28. Henry Marchant to Benjamin Levy, January 28, 1771 (f.210–211, Henry Marchant Letterbook 1769–1771, Rhode Island Historical Society). Levy had the temerity to ask Marchant to prosecute the case all the way to England, while neglecting to pay him for any work he had done in Rhode Island courts.

29. He did, with the help of Lawrence Holker, solicitor, get Freebody v. Brenton heard at the Cockpit, in which he was successful in having an adverse decision temporarily set aside for his client. See Marchant to Holker, November 4, 1772 (f. 18–20, Henry Marchant Letterbook 1772–1791, Rhode Island Historical Society). The decision favoring Marchant's client was later overturned by the King's Privy Council. See Henry Marchant to William Redwood, November 8, 1774 (f.154, Henry Marchant Letterbook 1772–1791, Rhode Island Historical Society). Cole has suggested that Freebody v. Brenton was unwinnable, and that Marchant's efforts were almost doomed from the outset. See Cole, “Henry Marchant's Journal, 1771–1772,” 52.

30. Dexter, Franklin, ed., The Literary Diaries of Ezra Stiles, 3 vols. (New York: Scribner's, 1901)Google Scholar, I: 304, December 4, 1772. The portion of Marchant's journal covering mid-September to early October is missing from the original and microfilmed copies, but has been partly transcribed into Dexter, ed., Literary Diaries of Ezra Styles, I: 304–22.

31. Henry Marchant Copybook of Letters of Introduction, Rhode Island Historical Society. The act of accumulating letters prior to departure on such a journey has been well described by Susan Lively in her dissertation, “Going Home: Americans in Britain, 1740–1776” (PhD diss., Harvard University, 1996). For Marchant's letter of introduction to Franklin, see Ezra Stiles to Franklin, Benjamin, June 25, 1771, in The Papers of Benjamin Franklin, 38 vols. (New Haven: Yale University Press, 1959– )Google Scholar, 18:144.

32. Henry Marchant to Ezra Stiles, September 5, 1771 (Ezra Stiles correspondence, Beinecke Rare Book and Manuscript Library, Yale University).

33. Marchant Journal, August 19, 20; September 5, 13, 1771.

34. On how agents could use delay to the colonists' advantage, see Kammen, “The Colonial Agents,” 248.

35. The increasing obstructions that all agents encountered doubtless hindered Marchant in his dealings with government officials. See Kammen, “The Colonial Agents,” 254, 257.

36. Henry Marchant to Ezra Stiles, September 5, 1771 (Ezra Stiles correspondence, Beinecke Rare Book and Manuscript Library, Yale University).

37. Rider, Cardanus, Rider's British Merlin, for the Year of our Lord God 1772, Adorned with many delightful and useful Verities fitting all Capacities in the Islands of Great Britain's Monarchy (London: 1772)Google Scholar in the Marchant family's possession. Mentioned by Brayton, Susan, “The Library of an Eighteenth-century Gentleman of Rhode Island,” New England Quarterly 8 (1935): 278Google Scholar.

38. Unpaginated list of all letters written by Henry Marchant while in London, Friendly Correspondence Book, Jantz Early Ms. #49 (Harold Jantz collection of early manuscripts, Duke University Special Collections).

39. Henry Marchant to Ezra Stiles, September 5, 1771 (Ezra Stiles Correspondence, Beinecke Rare Book and Manuscript Library, Yale University).

40. Henry Marchant to Ezra Stiles, September 5, 1771 (Ezra Stiles Correspondence, Beinecke Rare Book and Manuscript Library, Yale University).

41. Updike, Wilkins, A History of the Episcopal Church in Narragansett Rhode Island including a History of other Episcopal Churches in the State, 2d ed. (Boston: D.B. Updike/Merrymount Press, 1907), 224Google Scholar. Although family lore said that the likeness was painted by Copley, Copley's dates of residence in London render it impossible that he did the work in that city (ibid., 536). For likenesses of Henry Marchant and Rebecca Marchant see ibid., 424 and, ibid., 442, respectively. It is possible they were painted by Copley prior to his departure for England in 1774.

42. Marchant Journal, February 7, 1772.

43. Dexter, , ed., Literary Diaries of Ezra Stiles, I: 304, December 4, 1772Google Scholar.

44. Freebody v. Brenton et al. (see notes 22 and 29).

45. Marchant Journal, May 30; June 10, 1772.

46. Lovejoy, “Henry Marchant and the Mistress of the World,” 391.

47. See, for example, Marchant to Catherine Macauley, December 7, 1773, Friendly Correspondence Book, Jantz Early Ms. #49 (Harold Jantz collection of early manuscripts, Duke University Special Collections). On the topics of their conversation, see Henry Marchant to Ezra Stiles, May 14, 1772 (Ezra Stiles correspondence, Beinecke Rare Book and Manuscript Library, Yale University). Macauley herself did not comment on Somerset or on the topic of slavery during this decade.

48. See, for example, Henry Marchant to Alexander Grant, February 12, 1774 (reprinted in full in Brayton, “The Library of an Eighteenth-century Gentleman of Rhode Island,” 277–83). Brayton's concern that the family library contained no law books when she examined it is easily explained: Marchant's son and grandson both became attorneys, and doubtless put the books to practical use, such that they passed out of the family's collection of literary and religious works.

49. In this letter, Marchant requested reports by Talbot, Willson, Plowden, and Burroughs; and collected works by Sir William Temple, Matthew Hale, and Sidney “on Government,” in addition to Vattel's Law of Nations. Marchant to Alexander Grant, February 12, 1774, quoted in Brayton, “The Library of an Eighteenth-century Gentleman of Rhode Island,” 280–81.

50. Marchant Journal, August 22; October 7; October 20; October 23, 1771.

51. Henry Marchant to William Greene, February 25, 1772 (William Greene papers, Rhode Island Historical Society); Henry Marchant to Ezra Stiles, February 26, 1772 (Ezra Stiles correspondence, Beinecke Rare Book and Manuscript Library, Yale University).

52. Dexter, , ed., Literary Diaries of Ezra Stiles, I: 304, 308, December 4, 1772Google Scholar.

53. Redden, Kenneth, ed., Modern Legal Systems Cyclopedia rev. ed. (Buffalo: Wm. S. Hein, 2001)Google Scholar, §3.240.12–3.240.32. On specific doctrinal differences between English and Scots law, see MacKenzie, Lord, Studies in Roman Law with Comparative Views of the Laws of France, England, and Scotland (Edinburgh: 1865; repr. ed., Holmes Beach, FL: W. W. Gaunt & Sons, 1991)Google Scholar.

54. Marchant Journal, November 19, 20, 1771.

55. Bond's student journal, with copies of the cases he saw at Westminster, is deposited at the Historical Society of Pennsylvania, in Philadelphia. Unfortunately, he does not record the opening day arguments in Somerset v. Stewart. Bond occupied chambers in the Middle Temple, which he only quitted in 1779. (His bond for relinquishing occupancy dated June 19, 1779, box XCIV, bundle IV, 8, regarding chambers in Middle Temple Lane No. 2, Middle Temple Archives).

56. Marchant Journal, January 2, 1772.

57. On Bond's appointment to the Middle Temple bench, see Phineas Bond to William Eldred, Sub-Treasurer of the Middle Temple, November 26, 1811, box XCIV, bundle I, no. 59, Middle Temple Archives. Bond served as consul in Philadelphia, where he had many relatives and friends.

58. Winn, Bunnell, and Forester, despite their eminence in Marchant's opinion, are unmentioned by May, Allyson, The Bar and the Old Bailey, 1750–1850 (Chapel Hill: University of North Carolina Press, 2003)Google Scholar. Attempts to trace them through the Dictionary of National Biography, the Parliamentary History papers, and other biographical sources have had no success.

59. Marchant Journal, February 14, 1772.

60. Quote from Lovejoy, “Henry Marchant and the Mistress of the World,” 389.

61. Marchant Journal, February 3, 1772.

62. Henry Marchant to Ezra Stiles, February 26, 1772 (Ezra Stiles correspondence, Beinecke Rare Book and Manuscript Library, Yale University). Furneaux was considered by Stiles to be one the “principal dissenting Ministers in London.” See Dexter, , ed., Literary Diaries of Ezra Stiles, I: 304, December 4, 1772Google Scholar. The debate Marchant witnessed was one of the most heated in the early 1770s “over the requirement that dissenting ministers and schoolmasters should, as a condition of their registration, assent to the doctrinal articles of the Church of England.” Ditchfield, G. M., “‘How Narrow with the Limits of this Toleration Appear?’ Dissenting Petitions to Parliament, 1772–1773,” Parliamentary History 24 (2005): 91Google Scholar. See also Ditchfield, , “The Subscription Issue in British Parliamentary Politics, 1772–79,” Parliamentary History 7 (1988): 3580Google Scholar.

63. Henry Marchant to Ezra Stiles, September 21, 1771 (Ezra Stiles correspondence, Beinecke Rare Book and Manuscript Library, Yale University).

64. For all the letters of introduction and standing that Marchant had, it was not until January 1772, nearly five months after his arrival in London, that he finally gained an audience with John Pownall, Secretary of the Board of Trade, and then with Earl Hillsborough, who seemed confused about the nature of the various counterclaims being made by and against Rhode Island. Lovejoy, “Henry Marchant and the Mistress of the World,” 384–86.

65. Arthur Lee, as Junius Americanus, wrote a series of tartly worded articles that appeared in British newspapers between 1769 and 1776 that criticized British government policy about the colonies. See Lemay, J. A. Leo, ed., Essays in Early Virginia Literature Honoring Richard Beale Davis (New York: Franklin, 1977), 209Google Scholar. On Lee's other London exploits, see Garraty, John A. and Carnes, Mark C., eds., American National Biography, 24 vols. (New York: Oxford University Press, 1999)Google Scholar, 13: 356–57.

66. In the eighteenth century, Rhode Islanders controlled between sixty and ninety percent of the American trade in slaves; see Coughtry, Jay, Notorious Triangle: Rhode Island and the African Slave Trade, 1700–1807 (Philadelphia: Temple University Press, 1981), 25Google Scholar. Of all New England colonies, Rhode Island had the highest proportion of slaves in its population; between six and twelve percent of all persons in Rhode Island were enslaved prior to the Revolution; see Zilversmith, Arthur, The First Emancipation: The Abolition of Slavery in the North (Chicago: University of Chicago Press, 1967), 4Google Scholar.

67. Rhode Island's involvement in the slave trade permeated all levels of society. “The occupational listings in the Providence directory indicate that a large number of slave-traders would not have been considered merchants at all. Among these are various tradesmen and/or artisans, including a machine maker, a mason, a blacksmith, a tobacconist, a baker, a painter, a hatter, a currier…and two paper-hangers…A wide variety of occupations also characterized [slave] traders in other Rhode Island ports.” Lin, Rachel, “The Rhode Island Slave-Traders: Butchers, Bakers and Candlestick-Makers,” Slavery and Abolition 23 (3) (2002): 3032CrossRefGoogle Scholar.

68. Rhode Island Census, 1774 (Provo, UT: The Generations Network, Inc., 1997). Data in database drawn from Bartlett, John R., Census of the State of Rhode Island 1774 (Providence, RI: Knowles, Anthony & Co., State Printers, 1858), http://www.ancestry.comGoogle Scholar (accessed May 3, 2008). We are indebted to John Sweet for his assistance with this material. On Marchant's slave ownership, see Henry Marchant to Richard Ellis, April 19, 1770, f. 92–93; March 5, 1771 (f. 225, Henry Marchant Letterbook 1769–1771, Rhode Island Historical Society, on the sale of Marchant's slave boy Quam by Ellis).

69. Marchant Journal, February 7, 1772.

70. Hoare, Prince, Memoirs of Granville Sharp Esq. (London: Henry Colburn and Co., 1820), 7778Google Scholar. [Available through Google Books: http://books.google.co.uk/ <accessed May 12, 2008.> Sharp's longer transcription is devoted principally to Hargrave's arguments.

71. Marchant Journal, February 7, 1772.

72. Ibid.

73. “The Whole Minutes of the Trial in MS” held by the African Institution (London) is quoted in Hoare, Memoirs of Granville Sharp, Esq., 87–88. James Oldham makes use of full reports in biographies of Granville Sharp as well as previously unpublished Mansfield manuscripts found in Lincoln's Inn, which contain several notes about the case. See Oldham, Mansfield Manuscripts, 2: 1229–30 and n. 50. On the difference that exists between Sharp's and Marchant's versions, there is no way to determine which might be more accurate without a third source to provide corroboration for one account or the other.

74. This section of Marchant's critique on the arguments in Somerset may also reflect his fear, shared by other observers on both sides of the slavery question, that Mansfield sought to avoid answering the bigger question of the long-standing problem in English slave cases: whether or not slavery decisions made in London would apply in the colonies as positive legislation. Prior to Somerset, the precedents concerning slavery in England were unclear at best concerning the seventeenth-century's “new property,” the African slave. The earliest case, Butts v. Penny [King's Bench (hereafter K.B.) 1677], posited that trover was an available remedy for the recovery of slaves but declined to treat slaves as property. This was repudiated later in the Court of King's Bench under Chief Justice John Holt in two decisions: Chamberlain v. Harvey (K.B., 1697) and Smith v. Gould (K.B., 1705–06), in which Holt ruled that whereas some type of trespass might be available, trover was not the appropriate remedy. Therefore, Holt's rulings implied that slavery was a limited right, a custom in the colonies, but not an absolute property right. See Wiecek, “The Legitimacy of Slavery,” 90–91, and Oldham, “New Light,” 49. On the “new property of slavery,” see Bush, Jonathan A., “The British Constitution and the Creation of American Slavery,” in Slavery and the Law, ed. Finkelman, Paul (Madison, Wisc.: Madison House Publishers, 1997), 379418Google Scholar.

75. Marchant Journal, February 7, 1772.

76. Ibid.

77. See comparable argument in Hulsebosch, Daniel, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World (Chapel Hill: University of North Carolina Press, 2005)Google Scholar, chs. 2 and 3.

78. Marchant Journal, February 7, 1772. On Sharp and abolitionist ideology in the eighteenth century, see Davis, David Brion, The Problem of Slavery in the Age of Revolution: 1770–1823 (Ithaca, NY: Cornell University Press, 1975), 469Google Scholar.

79. Marchant Journal, May 14, 1772. Oldham, Mansfield Manuscripts, 2: 1232. On the subject of Lofft's account of Hargrave's argument, Oldham points to State Trials, which reprinted Lofft's treatment verbatim but attributes Hargrave's quotation from Blackstone's Commentaries incorrectly to the first edition published in 1765. Oldham indicates that, in fact, the quotation from Lofft which he attributes to Hargrave comes from the second edition, published in 1766: “The spirit of liberty is so deeply implanted in our constitution, and rooted even in our very soil, that a Slave or a Negro, the moment he lands in England, falls under the protection of the laws, and so far becomes a freeman; though the Master's right to his service may possibly continue.” The language of the 1765 edition is significantly different, using these words: “the moment he lands in England, falls under the protection of the laws, and with regard to all natural rights becomes eo instanti a freeman.”; see Oldham, Mansfield Manuscripts, 2: 1233; see also Hargrave, Francis, An Argument in the Case of James Sommersett a Negro, lately determined by the Court of the King's Bench (original pamphlet published in London: 1772, held by the Library Company of Philadelphia)Google Scholar.

80. Marchant Journal, May 14, 1772; Charles Stewart to Murray, James (no relation to William Murray, Lord Mansfield), June 15, 1772, Massachusetts Historical Society Proceedings 43 (1909–1910): 451Google Scholar.

81. Capel Lofft spelled Allen as “Alleyne”; see 98 English Reports 502 (K.B., 1772). According to Lofft's accounts in English Reports, Allen's commentary was laced with denunciations of the inhumanity of holding men in bondage, but his main point was that “slavery is not a natural, [but] ‘tis a municipal relation; an institution therefore confined to certain places, and necessarily dropt by passage into a country where such municipal regulations do not exist.” That slavery should not be viewed as normal or natural was the essential point that the abolitionists wished to have stressed, and certainly the argument that slavery could not exist except by positive law informed every interpretation of what Mansfield would later do—or might have done—in his ruling that freed James Somerset later in the year. Marchant Journal May 14, 1772; 98 English Reports 502 (K.B., 1772).

82. Marchant Journal, May 14 and 16, 1772; The Craftsman: Or Say's Weekly Journal, May 16, 1772, quoted in Oldham, Mansfield Manuscripts, 2: 1235.

83. Dexter, , ed., Literary Diaries of Ezra Stiles, I: 319, December 4, 1772Google Scholar.

84. Because the case is unreported, we have relied upon James Oldham's excellent synthesis of the case. Oldham made use of full reports in biographies of Granville Sharp as well as the previously unpublished Mansfield manuscripts found in Scone Palace, Perth, Scotland, which contain several notes about the case; see Oldham, Mansfield Manuscripts, chapter 21 and especially 2: 1225–26.

85. Oldham, Mansfield Manuscripts, 2: 1228.

86. Marchant Journal, May 21, 1772; 98 English Reports 502 (K.B., 1772).

87. Marchant Journal, May 21, 1772.

88. Stewart to James Murray, June 15, 1772, Massachusetts Historical Proceedings 43 (1909–1910): 451.

89. Marchant Journal, June 22, 1772. The Fordyce collapse also appears in Charles Stewart's correspondence, indicating how widespread the financial shockwaves spread through London.

90. 98 English Reports 509; 1 Lofft 17.

91. Ibid.

92. Paley, Ruth, “After Somerset: Mansfield, Slavery, and the Law in England, 1772–1830,” in Law, Crime, and English Society: 1660–1830, ed. Landau, Norma (New York and London: Cambridge University Press, 2002), 172Google Scholar. Although Marchant did not chronicle Mansfield's decision, his friend Benjamin Franklin had much to say after the decision was announced. See “The Sommersett Case and the Slave Trade,” from London Chronicle, June 18–20, 1772 in The Papers of Benjamin Franklin: Vol. 19, 1772, ed. Wilcox, William (Philadelphia: American Philosophical Society, 1975), 187––88Google Scholar.

93. Willes was the son of Sir John Willes, a member of the Common Pleas bench from 1737 to 1761. Trained at Lincoln's Inn, Edward Willes served briefly in the House of Commons as a member from Leominster in the 1760s before taking his place on the bench in 1768. He served there until his death in 1787; see Namier, Sir Lewis and Brooke, John, The House of Commons 1754–1790, 3 vols. (New York: Oxford University Press for the History of Parliament Trust, 1964)Google Scholar, 3: 642.

94. Marchant Journal, February 14, 1772.

95. Henry Marchant to William Greene, February 25, 1772 (William Greene papers, Rhode Island Historical Society).

96. Lords Journal, xxxiii: 374 suggests that only three of a possible sixteen Scottish representative peers were present. The low attendance may have stemmed from the peers’ perception that this was comparable to a family matter, or would be decided purely on political lines, such that the merits of the case as argued would be considered irrelevant. If Marchant attended the House of Lords early in the day, he may not have witnessed more lords who chose to avoid this early morning business altogether. Our thanks to the LHR anonymous reviewer, who brought this information to our attention.

97. Marchant Journal, April 30, 1772.

98. On court personnel and William Davy as a prototypical Old Bailey barrister, see May, The Bar and the Old Bailey, 1750–1850, ch. 1.

99. James Oldham has suggested that the case may have turned exclusively on the issue of handwriting, and therefore Marchant's answers may have ended the case somewhat precipitously (conversation with the authors at the 2003 British Legal History Conference, Dublin, Ireland).

100. See Dexter, ed., Literary Diary of Ezra Stiles, I: 13, 22, 110, 123, 179, 220, 223, 238, 251, describing their many contacts and letters before 1772. Upon Marchant's return, Stiles read the six volumes of his diary in their entirety (ibid., I: 304–22). Despite the differences in their professions, Stiles and Marchant consulted each other on all topics; Stiles drew up an elaborate three-month plan for Marchant's European travels, prior to his departure in 1771 (ibid., I: 117).

101. Henry Marchant to Ezra Stiles, September 5, 1771 (Ezra Stiles Correspondence, Beinecke Rare Book and Manuscript Library, Yale University).

102. Henry Marchant to William Greene, February 25, 1772 (William Greene papers, Rhode Island Historical Society).

103. Henry Marchant to John Lowell, January 16, 1773 (f.32–34, Henry Marchant Letterbook 1772–1791, Rhode Island Historical Society).

104. Morgan, Edmund S. and Morgan, Helen M., The Stamp Act Crisis: Prologue to Revolution (Chapel Hill: University of North Carolina Press, 1953)Google Scholar.

105. Letter from Governor Joseph Wanton to Earl of Dartmouth, February 16, 1773, recording the decision of June 11, 1772, transcribed in Records of the Colony of Rhode Island and Providence Plantations, 10 vols., ed. Bartlett, John R. (Providence, RI: A. C. Greene and Brothers, 1856–1865)Google Scholar, 7:222.

106. Henry Marchant to Ezra Stiles, February 26, 1772 (Ezra Stiles Correspondence, Beinecke Rare Book and Manuscript Library, Yale University). It is impossible to determine whether the increase in his legal business was because of his increased political stature or local circumstances (Henry Marchant to Lawrence Holker, November 4, 1772, f.18–20, Henry Marchant Letterbook, 1772–1791, Rhode Island Historical Society.)

107. See, for example, Henry Marchant to Jonathan Warner, February 1, 1773 (f. 47–48, Henry Marchant Letterbook 1772–1791, Rhode Island Historical Society). On the nature of this personal grief, see Henry Marchant to David Jennings, undated (c. September 1772) (Marchant Journal 1772–1773, Newport Historical Society).

108. Henry Marchant to Francis Dana, March 31, 1773 (f.61, Henry Marchant Letterbook 1772–1791, Rhode Island Historical Society).

109. Henry Marchant to David Jennings, undated [c. September 1772] (Marchant Journal 1772–1773, Newport Historical Society).

110. Henry Marchant Commonplace Book, 1773, Rhode Island Historical Society. His rather elaborate plans can be found in the first six or seven pages of the volume, where he laid out his scheme for arranging material and indexing the same.

111. Henry Marchant to Alexander Grant, February 12, 1774 (f.52–60, Marchant Friendly Correspondence Letterbook 1773–1785, Rhode Island Historical Society).

112. Sibley, Biographical Sketches, 14: 460; Brayton, “The Library of an Eighteenth-century Gentleman in Rhode Island,” 277–83.

113. Henry Marchant to David Jennings, August 3, 1785 (Friendly Correspondence Book, Jantz Early Ms. No. 49, Harold Jantz collection of early manuscripts, Duke University Special Collections).

114. See, for example, citations to Somerset contained in Commonwealth v. Aves, 35 Mass. 193 (1836) at 211 (Chief Justice Lemuel Shaw quoting Lofft report: “it is so odious, that nothing can be suffered to support it but positive law.”); Dred Scott v. Sandford, 60 U.S. 393 at 535 (Justice McLean's dissent quoting same sentence in Lofft report); Lemmon v. People, 20 N.Y. 562 (1860) at 568, which quotes Hargrave pamphlet.

115. Henry Marchant to Samuel Ward, Esq. (“Honored Sir”), June 20, 1773 (Friendly Correspondence Book, Jantz Early Ms. No. 49, Harold Jantz collection of early manuscripts, Duke University Special Collections). Note that Ward was a kinsman through Marchant's stepmother.

116. Sibley, Biographical Sketches, 14: 463. The impact of Somerset upon any of Marchant's federal opinions must be considered tenuous at best. Early federal court opinions, typically brief, are unsigned in printed versions. The Original Case Records and the Final Record Book for the District of Rhode Island from 1790 to 1796 give no indication of the presiding judge for cases decided (whether they were published or not). Moreover, there were no cases relating to slavery in the Rhode Island Federal District Court for 1790 to 1796, the period of Marchant's tenure on the bench. Our thanks to the staff at the National Archives, Northeast Branch (Waltham, MA), which houses the Rhode Island district court records for this period, for providing this information.

117. Zilversmit, The First Emancipation, 120. Quakers dominated the abolitionist efforts in Rhode Island, which proceeded primarily through the legislature. Efforts to libel slave ships in federal court and have them condemned for sale in the 1780s and 1790s had little success; either ship owners were not convicted by sympathetic juries, or the ships condemned were bought back through rigged sales that allowed the original owners to repossess them for trifling sums, see Coughtry, Notorious Triangle, 217–21. Marchant's ability to influence abolitionism while he served on the federal bench in the 1790s was limited: “To many [Rhode Island] abolitionists, the courts were a poor but necessary last resort.” Coughtry, Notorious Triangle, 208. The most significant drop in slave numbers occurred in the immediate aftermath of the Revolution, prior to Marchant accepting a place on the federal bench. Slaves in Rhode Island declined in number from over 4,300 in 1775 to only 958 in 1790. See Horton, James O. and Horton, Lois E., In Hope of Liberty: Culture, Community, and Protest among Northern Free Blacks, 1700–1860 (New York: Oxford University Press, 1997), 81Google Scholar.

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