Lawyering Somerset

Though Sharp’s antislavery jurisprudence extended beyond the case, it is helpful to begin with Somerset to establish the context in which Sharp’s legal writing originated. Like Jonathan Strong, James Somerset was an enslaved man transported from the colonies (in this case Virginia) to England. Somerset’s owner, Stewart, then planned to send James to Jamaica to be sold. When Somerset refused, Stewart detained him forcibly in a ship in the Thames.Footnote ¹³ With Sharp’s help, Somerset brought a habeas action against Stewart.Footnote ¹⁴ After the parties refused to settle, Lord Mansfield famously ruled in favor of Somerset, declaring “the black must be discharged.”Footnote ¹⁵ Contemporaries sympathetic to the antislavery cause read Mansfield’s judgment expansively. According to the Middlesex Journal, to cite one example, the case stood for the proposition that slavery was incompatible with English law, and that “every slave brought into this county ought to be free.”Footnote ¹⁶

Modern scholars, on the whole, have argued that Mansfield’s holding was in fact narrower. As David Brion Davis emphasized, Mansfield refused to declare that slavery was illegal in the abstract.Footnote ¹⁷ Instead, after the parties failed to settle, he addressed two narrower issues: first, whether the rights of an enslaved person brought to England would be governed by colonial or English law; and second, whether, under the laws of England, a slave-owner could forcibly detain his human property. Mansfield ruled in Somerset’s favor on both accounts, but, according to Davis, did nothing to “undermine[] colonial slave law.”Footnote ¹⁸ James Oldham concluded similarly that the case did not declare slaveholding illegal, even in England, and Ruth Paley found that Somerset was a limited precedent that subsequent litigants could and did evade.Footnote ¹⁹ George van Cleve and Daniel Hulsebosch later solidified this perspective, further emphasizing that Mansfield’s holding addressed conflict of laws and unlawful detention, not slavery itself.Footnote ²⁰

Yet in spite of this consensus, recent work has cast Somerset newly as a radical break. Though their aims and arguments differ, Holly Brewer and John Blanton have both refigured the case by reading it as the culmination of longer-term legal battles fought over the seventeenth and eighteenth centuries. Brewer argues that the Stuart monarchs used English courts (more specifically, judges appointed at the pleasure of the monarch) to develop a common law of slavery in support of the concomitant growth of the transatlantic slave trade.Footnote ²¹ Highlighting the 1677 decision in Butts v. Penny, Brewer concludes that King’s Bench reinterpreted the feudal law of villeinage to sanction the holding of absolute property in man in the context of slave trading.Footnote ²² From this perspective, Somerset appears as a definite refutation, not a narrow avoidance, of larger questions. Blanton, meanwhile, traces an even longer historical trajectory of pro- and antislavery legal conflict.Footnote ²³ He reads Penny as a rejection of antislavery conceptions of English law dating back to the Interregnum, but then argues that a series of cases decided by Chief Justice Holt following the Glorious Revolution refused to recognize a right to property in man.Footnote ²⁴ Following this longer history of alternating pro- and antislavery legal decisions, Somerset appears in Blanton’s telling as a revindication, against the Stuart courts, of “what generations of English antislavery thinkers had advocated.”Footnote ²⁵

In addition to reigniting debate over Somerset, these works suggest new avenues for understanding the context in which Sharp wrote. In particular, they allow us to examine the extent to which Sharp’s arguments both reprised earlier forms of antislavery and departed from such precedents in advocating for abolition. In writing the Representation in 1769, Sharp took aim at a set of eighteenth-century precedents that had cast aside Holt’s antislavery rulings. Key among these was the aforementioned Yorke and Talbot opinion, which purported to insulate slaveholders from multiple lines of potential legal attack. The opinion held, first, that an enslaved person brought from the West Indies to Britain “doth not become free,” and that English law would not abridge slave-property rights derived from colonial law. Deflecting arguments from religion, it also maintained that baptism would not “bestow freedom” or “make any alteration in his [the slave’s] temporal condition in these Kingdoms.” Finally, with particular relevance to those who, like Somerset, were transported from the colonies to England, the opinion stipulated clearly, “the Master may legally compel him [the enslaved] to return again to the plantations.”Footnote ²⁶ Rendered informally in 1729, the opinion’s precedential value was reinforced in later cases like Pearne v. Lisle, which Yorke, then Lord Chancellor Hardwicke, decided in 1749.Footnote ²⁷

Against these precedents, the Representation was in significant part the work of a cause lawyer. Sharp’s aim was not to build a theory of antislavery from the ground up; it was instead to muster a range of legal arguments, synthesizing from various sources and principles, to dismantle the Yorke–Talbot position. In other words, Sharp argued as a lawyer, not as a philosopher, and his claims were shaped by the past framing of the legal questions surrounding those like Jonathan Strong, whose presence in England raised questions over the extent to which English law either sanctioned or prohibited the holding of property in man.

We see this first in Sharp’s reading of English statutes, which he consistently interpreted as conveying expansive rights of subjecthood across boundaries of race and nationality. Citing a Henrician statute, Sharp argued that foreigners in Britain were “bounden by and unto the Laws and Statutes of th[e] realm.”Footnote ²⁸ As Sharp emphasized, the law referred broadly to “every alien and stranger,” making “no distinction of bond or free; neither of colours or complexions, whether of black, brown, or white.”Footnote ²⁹ The result, in Sharp’s view, was that foreigners on English soil, including those held in slavery, were entitled to the protections of English law, just as they were subject to its obligations. Not simply a marker of subservience, subjecthood was more than citizenship without rights for Sharp. Instead, it was a ground for demanding both “obedience and protection,” as Hannah Weiss Muller has explained in another context.Footnote ³⁰

Sharp drew from the Habeas Corpus Act a similar conclusion regarding the applicability of English legal protections to foreign subjects. There, too, he was quick to emphasize that the law contained “no distinctions of natural-born, naturalized, denizen, or alien subjects, nor of white or black.”Footnote ³¹ Such silence was purposeful, in Sharp’s view. Given the law’s wide applicability, Sharp argued that “every man, woman, or child” residing in England, whether enslaved or free, should receive the Act’s protections and remain “absolutely secure in his or her personal liberty.”Footnote ³² This argument, of course, was accepted in 1772, inasmuch as Mansfield allowed Somerset to state a habeas claim.Footnote ³³

Embedded within these statutory claims was a territorial concept of subjecthood, bounded by geography but universally applicable within England and Wales. Alluding implicitly if not explicitly to the seventeenth-century decision known as Calvin’s Case, Sharp viewed both statutes as reflecting a broader common-law principle—a “binding or obligation … properly expressed by the English word Ligeance.”Footnote ³⁴ Sharp’s innovation, here and elsewhere, was to read antislavery purposes into English legal tradition. Thus the failure of the habeas statute to make exception for slaves was not a mere accident, but rather evidence of the impossibility of restricting subjecthood along lines of race and status.Footnote ³⁵ Abstracted from questions of land tenure and inheritance, the notion of ligeance served a new purpose.Footnote ³⁶ For Sharp, the rights and duties of subjecthood depended on territorial presence rather than personal status.

The implications of this view were far-reaching. Upon arrival in England, slaves necessarily became subjects, according to Sharp. As subjects, they were entitled to the “King’s protection” and the protections of English law.Footnote ³⁷ In addition, subjecthood served as a means of undermining private claims to slave property. Casting all subjects as “the King’s property in the relative sense,” Sharp argued that private rights necessarily fall in the face of personal rights associated with subjecthood.Footnote ³⁸ Three years later, this argument met specific legal needs in Somerset as counsel sought to prove that an African-born foreign subject should nonetheless be afforded habeas protections.

We similarly see Sharp arguing strategically, in the face of specific legal questions, in his analysis of villeinage, a medieval relation akin to serfdom that bound peasants either to a lord or to a manor.Footnote ³⁹ In cases like Somerset, pro-slavery advocates cited villeinage as historical evidence of legal slavery in England to claim that modern slaveholding did not contravene English law. In the Representation, Sharp strenuously sought to distinguish villeinage, claiming it was “entirely obsolete,” so that it could not serve as precedent in cases involving enslaved Africans.Footnote ⁴⁰ As John Blanton has shown, Sharp effectively reprised Chief Justice Holt’s rejection of villeinage as precedent in cases decided between 1697 and 1702.Footnote ⁴¹ But a lack of novelty is in one sense the point: Sharp’s argument was shaped by the specific legal need to undermine the precedents used to justify slaveholding in the present, not abstractly but in court.Footnote ⁴²

Slavery, freedom, and national identity

Yet as clearly immersed in these legal arguments as Sharp was, the Representation also served broader political purposes. Throughout the Representation and in subsequent tracts, Sharp drew on overlapping concepts of legality to construct a politics of abolition. In claiming that slavery was incompatible with English law, Sharp fashioned ideals that were political and not limited to the specifically legal questions raised by Strong and Somerset. This was the case in four overlapping ways. The first was Sharp’s persistent effort to align antislavery with a sense of Englishness. Sharp’s legal arguments served a more general assertion that slavery was a “foreign” threat to English liberty. This was an aspirational, normative representation, which ignored Britain’s long involvement with the transatlantic slave trade. But it was central to the antislavery movement and to the emergence of abolitionism as a distinct strand of antislavery.Footnote ⁴³ By associating abolition with a particular conception of national identity, Sharp strove to legitimate the cause and underscore its urgency.

In the Representation, Sharp’s seemingly technical arguments over statutory interpretation simultaneously served these broader political ends. Take, for example, the fact that no English statute appeared to address the issue of slavery directly. In Somerset, Stewart’s lawyers would seize on this silence as evidence that slave-owners could bring enslaved people to England without imperiling their property rights.Footnote ⁴⁴ Sharp’s explanation, by contrast, was that slavery was never mentioned because it was “an innovation entirely foreign to the spirit and intention of the laws now in force.”Footnote ⁴⁵ Rhetorically, this argument was about more than statutory interpretation. Indeed, Sharp’s point served to promote a broader antislavery theme: the idea that slavery was “foreign.” In his portrayal, slavery appeared as a strange and unnatural disruption, unknown to English law.

Sharp similarly suggested that slavery was foreign to the common law, further emphasizing the idea that the practice was un-English. “Neither at common law,” he argued, could a master claim ownership over a slave, “for Slavery being an innovation entirely foreign to the spirit and intention of the present laws … there is no law to justify proceedings, nor sufficient precedents to authorize judgment.”Footnote ⁴⁶ Again the narrow point was that slaveholders lacked common-law precedent. But the broader assertion was that slavery was a foreign “innovation” in violation of the law’s general “spirit.” Ultimately, Sharp’s claim concerned legal and national identity rather than technical legal meaning.

Sharp was not the first to propose an antislavery spirit in characterizing English legal tradition.Footnote ⁴⁷ But Sharp’s effort to fashion an antislavery identity took shape in a wider political context in which claims to both the “nation” and the “people” took on new importance. The middle decades of the eighteenth century witnessed the expansion of an increasingly national print culture, linking London to cities and urban towns across England. This development galvanized extra-parliamentary debate and the growth of urban radical protest aimed at the Walpole ministry and, eventually, parliamentary reform. In this context, national identity was a site of contestation. As Linda Colley has shown, armed conflict with a religious and national other—France—consolidated a patriotic and distinctly Protestant British identity over the course of the century.Footnote ⁴⁸ But within the domestic polity, the period simultaneously saw ongoing conflict over the extent and nature of the political nation. Here, as Kathleen Wilson has argued, speaking for “the people” was newly tied to questions of political legitimacy.Footnote ⁴⁹

In this context, we should see Sharp, like Wilkite and other radicals, as invoking national identity to challenge a prevailing structure of authority and to legitimate reform. Still emphasizing the foreignness of slavery, Sharp proceeded to draw a stark distinction between the “happy constitution” of England and the “tyrannical constitution” of the colonies.Footnote ⁵⁰ Slavery was a distinctly colonial perversion, in this view, and a betrayal of authentic, English traditions. Sharp’s construction of identity thus formed in opposition to a seemingly foreign other.Footnote ⁵¹ In turn, the specter of colonial tyranny served to reinforce Sharp’s assertions about the incompatibility of Englishness and slavery. Seeing liberty and tyranny as inherently opposed, Sharp argued that slavery in the Americas had resulted in a betrayal of English constitutional principles. There the “many-headed monster of tyranny” had “entirely subvert[ed] our most excellent constitution.” After all, “liberty and slavery are so opposite each other, that they cannot subsist in the same community.”Footnote ⁵² For Sharp, slavery was a foreign tyranny—a “monster” necessarily opposed to the spirit of English law.

This was, of course, an ideological representation—an assertion with political force but equally significant historical blindness. Britain had been a major slaving power since the seventeenth century, and, during the eighteenth, British ships carried more than 2.5 million enslaved Africans across the Atlantic.Footnote ⁵³ In the British slave colonies, laws sanctioned by the Crown supported the plantation system. Colonial slavery, meanwhile, was hardly separate from metropolitan development. Britons consumed plantation sugar, coffee, and cotton.Footnote ⁵⁴ The wealth produced through slave labor benefited not only plantation owners but a wide range of industries—shipping, insurance, banking—as well as individual investors in Britain.Footnote ⁵⁵ In addition, Sharp’s rhetorical dichotomy between English liberty and colonial tyranny may have ridden upon public anxieties concerning miscegenation and racial impurity. Sharp worried in the Representation that an “unnatural increase of black subjects” threatened the “public good.”Footnote ⁵⁶ As Dana Rabin has argued, the real and growing presence of London’s black population led others in this period to disclaim the arrival of enslaved people from the colonies for fear of racial and moral corruption.Footnote ⁵⁷

However abstracted from these realities, Sharp’s purpose in opposing English liberty with colonial slavery was to associate the common-law tradition with the cause of antislavery. Indeed, Sharp’s aim was not merely to condemn the American colonies, but rather to suggest that slavery threatened to corrupt free English institutions. Sharp therefore emphasized not only the cruelty of slavery but also its wider effects on society. In short, Sharp argued that slavery degraded masters as well as servants, subverting freedom in the broadest sense. “Every petty planter, who avails himself of the service of Slaves,” he wrote, “is an arbitrary monarch, or rather a lawless Basha in his own territories, notwithstanding that imaginary freedom of the province, wherein he resides.”Footnote ⁵⁸ In this manner, slavery introduced “the horrid crime of tyranny” into supposedly free colonial states.Footnote ⁵⁹

Sharp’s emphasis on moral corruption and binary opposition between tyranny and liberty reflected wider currents in eighteenth-century radical thought. By the 1770s, in the buildup to the American Revolution, English radicals made corruption a key theme. This was not a narrow corruption in the sense of bribery, but a broader narrative of political decay, of threats to essential liberties on both sides of the Atlantic, and of an “imminent danger of degenerating into tyranny.”Footnote ⁶⁰ Sharp participated directly in disseminating this notion, as a campaigner for parliamentary reform and a founding member of the Society for Constitutional Information.Footnote ⁶¹ Sharp’s political radicalism will be discussed in greater detail later in the article. But here it helps contextualize his understanding of “tyranny,” and his insistence that slaveholding threatened to corrupt “free” English institutions. In the Representation, for instance, Sharp reproduced slave advertisements published casually in New York newspapers to emphasize the danger of moral corruption. “Such a shameless prostitution and infringement on the common and natural rights of mankind,” Sharp declared, “may entitle the province where they were published, to the name of New Barbary, rather than of New York!”Footnote ⁶² In an even broader sense, he argued that the tyranny of slavery threatened the liberty of the community as a whole. “No person can be safe,” he averred, “if wicked and designing men have it in their power, under the pretence of private property as a Slave, to throw a man clandestinely without a warrant into gaol.”Footnote ⁶³ As readers after 1772 would have realized, this was the kind of power at issue in Somerset’s Case. Sharp’s purpose was not to condemn the American North in its entirety; he was, after all, in league with American antislavery activists like Anthony Benezet, and supportive of American claims for greater political representation. Instead, he figured the North as a warning by comparison—threatened, like Britain itself, by the corrupting influence of holding and trading human property.

As Christopher Brown has argued, Sharp’s arguments here resembled Edmund Burke’s heated criticisms of the East India Company during the Hastings trial.Footnote ⁶⁴ Sharp’s slaveholder as “Basha” paralleled Burke’s East Indian “nabob,” the Company ruler trained (and corrupted) in the ways of “oriental despotism.” In both cases, the basic fear was that arbitrary power cultivated in the colonies would return to Britain and subvert British liberty. While Sharp emphasized the violence and arbitrary power inherent in slaveholding, others expressed a related distaste for the perceived sexual depravity of slave societies; as Brooke Newman has shown, metropolitan satirists figured interracial sex as a corrupting force that threatened the “integrity of British lineages” in both a racial and a moral sense.Footnote ⁶⁵

For our purposes, the salient point regarding Sharp’s argument about political and social corruption concerns the task facing antislavery advocates in the late eighteenth century. One of the antislavery movement’s key challenges was engaging a domestic audience far away from colonial plantations. The problem of empathy was met partly through print—words and images designed to communicate the horrors of the trade.Footnote ⁶⁶ But it was also addressed, strategically, by casting antislavery issues in terms of domestic moral norms—involving gender and family life in particular.Footnote ⁶⁷

Sharp prefigured these strategies, which developed more fully towards the end of the eighteenth century and into the nineteenth. The Representation takes up the conceptual task of localizing the threat of slavery. By portraying slavery as a threat to English liberty, Sharp transformed the problem from a remote abstraction into a domestic imperative. This was a constant theme in his advocacy, as we will see. Turning from the American North, he called forth an image of slavery in England. “[T]he practice of Slave-holding is now only in its infancy amongst us,” he wrote.

Here, the duality of the tract’s title is particularly revealing. The book explains, in great detail and with fervor, the “Injustice” of slavery. But it also emphasizes the “Dangerous Tendency” of “admitting the Least Claim of Private Property in the Persons of Men, in England.” If Sharp’s personal involvement with Strong explained his particular concern for the plight of those enslaved in the colonies and brought to England, his persistent emphasis on the problem of slavery in England amplified a related but distinct focus. Part of Sharp’s conceptual task was to prove that slavery mattered to Britons. He did so by persistently declaring direct moral responsibility for colonial slavery, but also by suggesting, equally persistently, that slavery posed a threat to Englishness itself. The problem of slavery was thus cast as a problem of national identity. Antislavery, in turn, became not only a means of ending injustice but also of defending English institutions and values against the threat of foreign corruption.

Natural rights and the ancient constitution

A second key feature of the abolitionist politics that Sharp built on legal foundations depended on invocations of natural law. While Sharp made statutory arguments against slaveholding in England, he also made the broader argument that liberty was a natural right inherent in the condition of humanness. Sharp shared this focus with other antislavery thinkers who used natural law to cast doubt on the validity of man-made laws sanctioning slavery.Footnote ⁶⁹ But Sharp’s assertions regarding natural rights frequently appeared alongside complementary assertions regarding the common-law tradition. Indeed, Sharp’s antislavery appeals depended heavily on a particular appraisal of the rights and privileges associated by many common-law thinkers with the “ancient constitution.” This was in part a legal strategy: an effort to array as many arguments as possible to dismantle the Yorke and Talbot position. But as with Sharp’s portrayal of Englishness, his synthesis of natural and common law also served as a basis for developing a broader politics of abolition. Connecting antislavery to a key theme in eighteenth-century radical thought, Sharp pursued a kind of natural-rights constitutionalism.Footnote ⁷⁰ In so doing, he figured abolition as both radical and traditional; he refashioned tradition in the service of a radical cause.

These dynamics first appeared in the Representation, where a set of broad assertions regarding the relation between personal rights and humanness bolstered Sharp’s claims about subjecthood. Most prominently, Sharp argued that liberty was a universally applicable natural right. “True justice makes no respect of persons,” he wrote, “and can never deny to any one that blessing to which all mankind have an undoubted right, their natural liberty.”Footnote ⁷¹ Sharp’s language (the use of the word “blessing” in particular) points to the religious underpinnings of his understanding of natural law—a subject to which I will return later. But the important point here is that Sharp’s view of liberty was grounded in the condition of humanness. From the beginning of the Representation, Sharp argued that enslaved men and women were “free born; of human, not base, parents,” and therefore entitled to “natural liberty.”Footnote ⁷² As subjects but also as humans, then, the enslaved were entitled to liberty protections. They could not legally be treated as “mere things.”Footnote ⁷³

Yet just as he referred to “natural liberty” and appealed to the “common and natural rights of mankind,” Sharp simultaneously portrayed tradition as the source of such rights.Footnote ⁷⁴ He did so by reading natural rights into the common law. He was at pains to show that, if slavery was inherently wrong, it was also “plainly contrary to the laws and constitution of this kingdom.”Footnote ⁷⁵ On this reading, the constitution was more than a bill of rights. In addition to long-established political guarantees and restrictions on the state, it also encompassed abstract moral principles. Sharp thus proclaimed the golden rule, “the principle of ‘doing as one would be done by,’” as “the very basis of the English constitution.”Footnote ⁷⁶ For Sharp, there was no neat division between constitutional tradition, reason and religion.

Such synthesis remained present as Sharp’s legal thinking and public advocacy developed following his encounter with Jonathan Strong and the publication of the Representation. In 1771, shortly before Somerset went to trial, Sharp’s attention turned to a similar conflict involving Thomas Lewis, an African man seized in London at the behest of his putative owner, Robert Stapylton. Sharp initiated a habeas action and sought an arrest warrant on grounds of assault for Lewis’s captors.Footnote ⁷⁷ Writing privately, Sharp constructed a legal argument that Lewis’s natural right to liberty necessarily outweighed any possible property interest held by Stapylton in accordance with positive colonial law. However high the monetary value of such an interest, Lewis, according to Sharp, held a “superior Right and Title to his own Person,” based on “a claim of natural property in himself.”Footnote ⁷⁸ Blending this natural-law argument with the authority of the common law, Sharp then argued that English law necessarily recognized Lewis’s “superior Right”—“surely his Liberty to him is inestimable; at least the English law presumes that it is so.”Footnote ⁷⁹ This melding functioned to answer a particular legal issue, raised by Lewis’s ordeal, concerning the relationship between individual liberty and private property. Yet it also served a broader purpose, turning from the particular to the general, in aligning inherent personal rights with the moral standing of the nation. Treating natural liberty as an animating force within the common law led Sharp to assert that the case concerned not narrow private interests but rather a shared public injury. If the court allowed Stapylton to assert his right over human property in England, “the publick would be materially injured as well in honour as in Morals and National Safety.”Footnote ⁸⁰ By subverting the natural-law essence of the common law, slavery imperiled “this free Christian Country” and constituted a public wrong (or “publicum malum” in Latin, as Sharp wrote).Footnote ⁸¹

These arguments Sharp reprised publicly in a substantive Appendix to his original Representation, published in 1772.Footnote ⁸² Again, Sharp drew an inherent, natural right to liberty into the common law. The “Law doth no wrong,” he contended, in favoring the “superior, because a natural interest” of the enslaved over the slaveholder’s “lesser claim of estimable property.”Footnote ⁸³ Referring to such a slaveholder as an “imaginary proprietor,” Sharp argued that “every claim of Property is absolutely unjust in itself … if it interferes, or is inconsistent with that natural and equitable claim to personal security.”Footnote ⁸⁴ Natural rights to liberty “the law of this kingdom hath always favoured.”Footnote ⁸⁵ Any contrary claim to human property was in Sharp’s view necessarily inconsistent with “the Maxims of the Common Law”; to grant a right to slavery in England was “to stab the constitutional freedom of two ancient Kingdoms at one blow.”Footnote ⁸⁶ As Sarah Winter has explained, two of Somerset’s attorneys similarly invoked natural-law principles “as conjoined to English law.”Footnote ⁸⁷

How should we understand Sharp’s natural-rights constitutionalism? Conceptually, Sharp’s jurisprudence recalled an older, medieval tradition of common-law thought that viewed reason and custom as overlapping sources of law. Like Sharp, Glanvill portrayed “the laws and customs of the realm” as having “their origin in reason.”Footnote ⁸⁸ Written some forty years later, Bracton similarly associated English law and custom, and the “general agreement of the res publica,” with a broader principle of justice derived abstractly from God and human nature.Footnote ⁸⁹ To varying degrees, this association was preserved in the seventeenth- and eighteenth-century sources that Sharp read and cited frequently.Footnote ⁹⁰ Tellingly, the very last line of the Representation was a quotation from Matthew Hale: “What is contrary to reason, is contrary to law.”Footnote ⁹¹ This melding of law and reason reflected both Coke’s enduring eighteenth-century influence and the practical fact that judges continued to rely on external sources like natural law, not just precedent, to decide cases.Footnote ⁹² As a story of origins and persistence, this lineage suggests that Sharp’s view of natural law was more viable and less eccentric than it might seem in light of familiar distinctions between “law” and “equity,” with the former regarded as relatively inflexible judge-made rules and the latter as the flexible application of principles of justice.Footnote ⁹³

But the meaning and force of Sharp’s melding of natural and common law is best viewed not in narrow jurisprudential terms but rather in the wider context of opposition politics during the 1760s and 1770s. These decades witnessed new, more forceful challenges to the form of aristocratic one-party rule that had dominated English politics under George I and George II. As noted, significant expansions in an increasingly national press network facilitated extra-parliamentary agitation. So did coffeehouses, debating societies, and popular demonstrations. Opposition to court–Whig hegemony was ideologically multivalent, but by the 1760s political radicalism was newly visible. John Wilkes galvanized a popular movement that rejected the particularly unrepresentative status quo and called for parliamentary reform. American attacks on the theory of virtual representation then motivated similar demands among a wider range of English radicals. While it is overly simplistic to read this period as a fully formed precursor to nineteenth-century reform, 1760s radicalism was new in arguing not just for more frequent elections but also for reformed electoral districts and a more expansive franchise.Footnote ⁹⁴

Importantly, radicals in this context drew simultaneously on notions of inherent and inherited rights. The case for political representation was based on assertions of liberty, but liberty could be conceived of as both a natural right and a historic tradition. Wilkite radicals melded the two poles. They appealed to the ancient constitution as a source of rights and promoted a narrative of English history, focused particularly on the Civil Wars and the Glorious Revolution, as a basis for arguing that legitimate political power depended on the consent of an inherently free “people.”Footnote ⁹⁵ This was a recurring feature of English radical thought into the nineteenth century. As James Epstein has argued, a republican natural-rights tradition coexisted with “popular constitutionalism,” which grounded rights in constitutional guarantees like the 1689 Bill of Rights.Footnote ⁹⁶ In practice, these two conceptions intermingled. Radicals portrayed Saxon England as a “paradigm of constitutional virtue” and parliamentary reform as a restoration.Footnote ⁹⁷ The parliamentary reformer John Cartwright merged the two strands through a selective reading of English history that emphasized traditional rights guarantees like Magna Carta.Footnote ⁹⁸ The Chartists similarly drew symbolically and rhetorically from both traditions, championing the “ancient right” to petition while simultaneously convening a “national convention” as a kind of anti-parliament.Footnote ⁹⁹

During the 1770s and 1780s, Sharp was an active participant in the radical circles that promoted this line of thought. He worked closely with Capel Lofft and Cartwright, who published the influential radical tract Take Your Chance! in 1776. In 1777, the three met to revise Wilkes’s call for parliamentary reform.Footnote ¹⁰⁰ Three years later, they jointly established the Society for Constitutional Information, along with John Jebb, Richard Price, and others, to disseminate arguments in favor of yearly parliaments and a wider suffrage.Footnote ¹⁰¹ Lofft had compiled the authoritative transcript of Mansfield’s decision in Somerset years earlier, and Cartwright was similarly aware of Sharp’s antislavery. Sharp and Cartwright read and cited each other.Footnote ¹⁰²

In this context and as a radical advocate, Sharp viewed natural law as both a limit on legitimate political conduct and an embedded source of traditional English liberties. In 1774, he published A Declaration of the People’s Natural Right to a Share in the Legislature, a tract in support of the American cause, which portrayed political representation as a “Natural Right.”Footnote ¹⁰³ Natural rights of this sort imposed inherent limits on positive law, he argued, and could not be “withdrawn from any part of the British empire by any worldly authority whatsoever,” including Parliament.Footnote ¹⁰⁴ At the same time, Sharp argued that the natural right to representation possessed by the American colonists stemmed from the English constitution, and was equally guaranteed by English law. “The free representation of the people in the legislature,” he wrote, was a crucial part of “mixt government, limited by law, which our ancestors have always most zealously asserted, and transmitted to us, as our best birthright and inheritance.”Footnote ¹⁰⁵ Representation was thus both natural and traditional, a “right” and an “inheritance.” For Sharp, this linked natural law to the ancient constitution, defined as existing beyond sovereign power. Parliament could not “give up the ancient and established right of the people to be represented in the legislature” because doing so would “entirely subvert the principles and constitution on which the very existence of the legislature itself, which ordained it, is formed!”Footnote ¹⁰⁶

A melding of natural and constitutional rights was thus integral both to Sharp’s political radicalism and to his abolitionism. In both cases, he revived an older tradition of common-law thinking, one that saw natural law as the basis of the ancient constitution, for new political purposes. As we have seen, Sharp’s argument against slavery had long depended on a notion of natural rights. “[N]atural liberty” belonged to “all mankind,” he asserted in the Representation, making enslavement a “gross infringement” of “common and natural rights.”Footnote ¹⁰⁷ Later tracts confirmed and expanded this theory. The Law of Liberty, published in 1776, argued that liberty and equality were inherent rights guaranteed by God; it further cast slavery as a violation of “the general Laws of Morality, and the natural Rights of Mankind.”Footnote ¹⁰⁸ Yet with equal persistence, Sharp read these notions of natural rights into his account of the common-law tradition and the ancient constitution. He was aware that the British state had not in practice respected the principles of liberty he lauded. But rather than undermining his account of tradition, he viewed this discrepancy as a call for reform amidst the “depravity of the present age.”Footnote ¹⁰⁹

In so doing, Sharp gave his antislavery vision the ideological power of the common-law notion of “immemoriality.”Footnote ¹¹⁰ As an abolitionist, Sharp called for an immense reordering of the world. But his antislavery jurisprudence—his arguments for abolition—featured a rhetorically potent mixture of tradition and radicalism. Radical advocates for parliamentary reform, including Sharp, “constructed an alternative narrative of English history that endowed radical apprehensions and goals with credibility.”Footnote ¹¹¹ Sharp’s antislavery writing, which is sometimes viewed separately from his political advocacy, made use of this same mode of political assertion. Like the “popular constitutionalists” described by Epstein, Sharp argued for radical change using the language of tradition. Change, even radical change, could be framed as restoration rather than upheaval—as part of a general effort to “save the British Constitution.”Footnote ¹¹²

This rhetorical strategy should not be seen as the mere product of Sharp’s peculiar personality.Footnote ¹¹³ Instead, it should be regarded as an important contribution to British abolitionism. Rather than portraying abolition as a radical revolution, Sharp figured it as a restorative, traditional project. In the 1760s and 1770s context in which Sharp developed this idea, it marked a revival of an older yet still viable legal tradition in which natural law was viewed as the basis of the ancient constitution. At the same time, he used the language of natural rights to press beyond the parameters of legal cases involving trover, forced detention, and habeas corpus, to question the legitimacy of slavery itself, in a context in which he and other radicals were actively reinventing the past to challenge prevailing structures of authority. Looking forward, Sharp’s melding of radical and traditional claims—his portrayal of abolition as a restoration, not a revolution—would be received and promoted by others during the later campaign against the trade. Indeed, it is an image that Thomas Clarkson would celebrate in his first history of abolition, which attributed to Sharp the “restoration of the beauty of our constitution.”Footnote ¹¹⁴

Law, religion, and national guilt

Having considered Sharp’s natural-law constitutionalism, we turn now to a third fundamental element of Sharp’s legal thought: religion. Indeed, it would be impossible to understand Sharp’s antislavery jurisprudence without taking into account his view of the relation between law and religion. After publishing the Representation, Sharp shifted his attention to religious law in an effort to repudiate, as he explained to Benezet, “the doctrines of some late writers and disputers, who have ventured to assert that slavery is not inconsistent with the Word of God.”Footnote ¹¹⁵ Two tracts published in 1776—The Just Limitation of Slavery in the Laws of God and The Law of Liberty—argued extensively that slavery and Christianity were incompatible. A third, The Law of Retribution, also published in 1776, portrayed slavery as a crime, called for national repentance, and warned of divine punishment. Together, these writings reveal the significant extent to which religion shaped Sharp’s understanding of the common law, and of legality in the abstract.Footnote ¹¹⁶

The first point to make in this respect is that Sharp viewed the Bible as a source of law with direct application to human affairs; to address basic questions surrounding the legality of slavery, he turned to Scripture in addition to statutes. Surveying evidence from both the Old and New Testaments, The Just Limitation of Slavery argued that both biblical sources condemned Atlantic slavery.Footnote ¹¹⁷ Sharp’s emphasis, however, lay persistently on the Gospels, from which he derived further support for universal principles of equality and liberty.Footnote ¹¹⁸

The foundation of Sharp’s natural-law thinking was thus religion. The golden rule, which Sharp treated as a constitutional principle, he simultaneously viewed as an imperative of Christian love. “Slavery is absolutely inconsistent with Christianity,” he affirmed, “because we cannot say of any Slaveholder, that he doth not to another, what he would not have done to himself!”Footnote ¹¹⁹ Natural liberty Sharp similarly viewed as “supreme Law” derived from biblical principles.Footnote ¹²⁰

Sharp’s exegetical method in The Law of Retribution further demonstrates both points: that Scripture was, for Sharp, both the basis of natural law and directly applicable to human affairs in the present. Much of the more than three-hundred-page tract is devoted to close interpretation of biblical text, and Sharp’s basic argumentative logic is that principles of moral conduct derived from Scripture can be applied universally and in the modern world, not simply in the biblical past. Citing specific passages from Deuteronomy and Leviticus, Sharp concluded that “no National Wickedness can be more heinous in the sight of God, than a public toleration of Slavery and Oppression! For Tyranny (in whatsoever shape it appears) must necessarily be esteemed a presumptuous breach of that Divine Command.”Footnote ¹²¹ In so doing, Sharp argued as a lawyer, treating divine punishment of oppression (as recorded in Scripture) as precedent, and applying such precedent to the modern context of chattel slavery. At the same time, Sharp made manifest his view that Scripture was a directly applicable source of law. The “Command” to which Sharp referred was that “in which ‘all Law is fulfilled’ (Gal. v. 14.) viz. ‘Thou shalt love thy Neighbour as thyself’ Levit. Xix. 18.”Footnote ¹²²

Thus, for Sharp, religion and law were inextricably intertwined. Scripture could be used to answer legal questions, but it was also a means of challenging the legitimacy of man-made law. Perhaps most important, Sharp read a religious repugnancy principle into the common law, invalidating laws that conflicted with biblical command. Applying Deuteronomy to answer legal questions surrounding the rights of runaways and those who harbored them, he thus argued, “an action of trover cannot lye for a slave … because that would be punishing a man for doing his indispensable duty according to the laws of God.”Footnote ¹²³ In cases of conflict, religious law was supreme; positive law in violation of religious law “must necessarily be rejected as null and void.”Footnote ¹²⁴ To support this argument, Sharp again drew on an older tradition of common-law texts, citing Christopher St Germain’s work Doctor and Student.Footnote ¹²⁵

From this vantage point, the legality of slavery depended on more than positive law. And as a violation of religious law, slavery was more than simple wrongdoing. According to Sharp, slavery was a collective sin—a crime against God. As such, it was a problem affecting the nation and empire as a whole. The result was what Sharp called a “National Guilt,” calling forth the prospect of divine retribution.Footnote ¹²⁶ “The African Slave Trade, which includes the most contemptuous Violations of Brotherly Love and Charity that men can be guilty of, is openly encouraged and promoted by the British Parliament!” he warned.Footnote ¹²⁷ “By the unhappy Concurrence of National Authority, the Guilt is rendered National; and National Guilt must inevitably draw down from God some tremendous National Punishment.”Footnote ¹²⁸ Sharp pursued this argument extensively in his Law of Retribution, which warns throughout of “severe vengeance” for the “crying sin of tolerated Slavery.”Footnote ¹²⁹

It is difficult to overstate the rhetorical importance of Sharp’s emphasis on sin. Sharp propagated a kind of “judicial providentialism,” a belief that God actively punished nations for immoral behavior.Footnote ¹³⁰ The concept of divine retribution lent immediacy to the case for abolition.Footnote ¹³¹ Like Sharp’s earlier invocation of Englishness, it also served to universalize the problem of slavery, implicating a domestic audience. According to Sharp, the “horrible Guilt” of slavery was “no longer confined to the few hardened Individuals” directly involved in the trade.Footnote ¹³² Instead, “The whole British Empire” was responsible.Footnote ¹³³ As Christopher Brown has concluded, “Sharp introduced in Britain the seminal idea that the fate of the nation depended on its liberation from the sins of slaving.”Footnote ¹³⁴

Similarly, Sharp’s emphasis on sin served to attribute direct moral responsibility for slavery to Britons throughout the empire. As Thomas Haskell has argued, the issue of causality was a central problem in the eighteenth-century rise of antislavery and humanitarianism.Footnote ¹³⁵ If antislavery advocates sought to shift moral perceptions of the issue, then part of their task was to attribute responsibility for attenuated, distant events across the imperial economy. Sharp’s approach was to promote a religious view of moral responsibility that merged direct and indirect support for slavery, as well as action and inaction. “[T]o be in power, and to neglect (as life is very uncertain) even a day in endeavouring to put a stop to such monstrous injustice,” he warned Lord North in 1772, “must necessarily endanger a man’s eternal welfare, be he ever so great in temporal dignity or office.”Footnote ¹³⁶ Writing to the Colonial Secretary, the Earl of Dartmouth, Sharp was equally stern; political leaders responsible for colonial violence accrued a “personal guilt, which they must one day personally answer for, when they shall be compelled to attend, with common robbers and murderers, expecting an eternal doom.”Footnote ¹³⁷ Equating political decision making in London with the direct action of “robbers and murderers,” Sharp denied causal attenuation.Footnote ¹³⁸ Meanwhile, the guilt of inaction in the face of sin he applied generally to the public at large. As Benezet wrote to Sharp several months earlier, “we cannot be at the same time silent and innocent spectators of the most horrid scene.”Footnote ¹³⁹

This moral immediacy separates Sharp’s antislavery from many earlier and contemporary variants. We have seen how Sharp’s legal arguments in many cases revived claims made during the seventeenth century and the early eighteenth, particularly during the tenure of Chief Justice Holt. In Sharp’s own lifetime, others similarly questioned slavery on moral, and increasingly economic, grounds. Edward Trelawny, the governor of Jamaica during the First Maroon War, anonymously published An Essay Concerning Slavery in 1746, which warned that ongoing importations would eventually lead to catastrophic violence.Footnote ¹⁴⁰ Like Sharp, Adam Smith rejected the notion that villeinage could serve as legal precedent for African slavery while arguing, more broadly, that slavery was premodern and inefficient.Footnote ¹⁴¹ John Millar similarly condemned enslavement on economic grounds in his Origin and Distinction of Ranks, marking a broader trend within the Scottish Enlightenment.Footnote ¹⁴² Without enumerating additional examples, we can note that these grounds of argument—one focused on the potential for revolutionary violence, later tied to the Haitian Revolution, and another focused on political economy—remained abiding preoccupations for nineteenth-century abolitionists.

Sharp took part in neither of these traditions; as his emphasis on religious command and retribution makes clear, he had no use for pragmatic grounds in developing a case against slavery. He was consistent in this regard, as we see when Sharp returned to his arguments concerning slavery and religion eleven years later. This occurred in response to the infamous Zong case, which arose after the ship’s captain had his enslaved “cargo” thrown overboard to collect an insurance payment. Sharp argued that the murder of 132 men (“considered as Goods … yet, that still they are Men”) should be punished. But in so doing, he warned the Admiralty that allowing the slave trade to continue imperiled “the whole Nation,” not just those directly involved in the Zong, and would result in divine retribution, or a “tremendous Calamity, as may unquestionably mark the avenging hand of God.”Footnote ¹⁴³ An additional letter sent to the Duke of Portland explicitly invoked Sharp’s earlier admonishment of Lord North; denying any claim of causal attenuation, Sharp argued that British officials bore responsibility for allowing the trade to continue.Footnote ¹⁴⁴

While Sharp’s theory of religious guilt served to concretize the abstraction of slavery and universalize its threat of destruction, it also underscored a broader point about his conception of law. Law, for Sharp, was not in the end a matter of public policy; its purpose was not to balance competing interests and needs. Instead, it was to impose absolute moral principles on human conduct. Arguments from necessity—whether strategic or economic—Sharp cast aside as “deceitful sophistry.”Footnote ¹⁴⁵ Causal attenuation Sharp similarly cast aside, attributing personal responsibility even to those only indirectly connected to slavery and the slave trade. In this view, justice was unbending.

Antislavery, progress, and modernity

As Sharp sought to portray slavery both as a “foreign” threat to Englishness and as a national sin, he also argued that antislavery—and ultimately abolition—was distinctively progressive and modern. This was the final important rhetorical contribution made by Sharp’s legal writing to the antislavery movement as a whole. As Eric Herschthal has recently argued, a wide range of antislavery actors sought to portray slavery as a premodern institution and slaveholders as “the enemies of progress.”Footnote ¹⁴⁶ Sharp was a progenitor of this modernizing antislavery discourse, though he placed less emphasis on science and technology than Herschthal’s protagonists did and more on a progressive reading of British legal history. Associating antislavery with the notion of progress, Sharp’s legal history provided an answer to the long-standing acceptance of slavery apparent in Western and non-Western societies alike.

As part of Sharp’s general effort to prove that English law prohibited slavery, he engaged substantially with English legal history. We have seen that Sharp turned particularly to the history of villeinage in a strategic effort to undermine its value as precedent in legal cases involving modern slavery. This effort simultaneously served broader aims; it produced a “usable past”—a history of common-law evolution with larger antislavery purposes. Two points are particularly important in this regard. First, Sharp’s history was progressive in the Enlightenment sense; it attached to English legal development a clear directionality, moving forward in time towards improvement. From this perspective, the story of the common law was above all a story of freedom; its central narrative principle was the gradual triumph of liberty over tyranny. According to Sharp, ancient forms of feudal servitude existed in spite of and against the common law’s true spirit. Villeinage, like slavery, he portrayed as a foreign, un-English aberration. “[S]uch barbarous customs,” he argued, “had no other foundation, than the violent and unchristian usurpation of the uncivilized barons in an age of darkness.”Footnote ¹⁴⁷ Not only was villeinage “obsolete,” it was also contrary to “the very foundation of our English Common Law.”Footnote ¹⁴⁸

Second, as the preceding quotation suggests, Sharp abstracted the common law from its feudal social origins. The rise of freedom—and of the common law’s true spirit—coincided in his narrative with the decline of feudalism.Footnote ¹⁴⁹ Feudal bondage, meanwhile, was the result of “uncontrollable power,” not law.Footnote ¹⁵⁰ Thus, even as villeinage reigned, the tendency of law was to limit its severity. According to Sharp, “ancient patriotic lawyers” persistently interpreted the law “in favour of liberty,” bearing out Fortescue’s maxim, “Angliae Jura in omni casu libertati dant favorem.”Footnote ¹⁵¹

Sharp was not alone in associating common-law history with the progressive realization of freedom; the assertion was potent in the litigation that had inspired Sharp’s Representation. Arguing Somerset’s Case in 1772, Francis Hargrave similarly portrayed villeinage and domestic slavery as a corrupting force incompatible with true common-law principles. “[L]ong and uninterrupted usage from the origin of the common law,” he argued, “stands to oppose its [domestic slavery’s] revival.”Footnote ¹⁵² In England, after all, “freedom is the grand object of the laws.”Footnote ¹⁵³ Like Sharp, Hargrave saw the preservation of personal liberty as the essence and fundamental purpose of the common law.

In the broader context of antislavery ideology, Sharp’s progressive theory of common-law history offered a powerful explanatory paradigm that remained influential well into the twentieth century. When Thomas Clarkson wrote the first history of British antislavery, just after the abolition of the trade in 1808, he attributed the movement’s rise to religious and moral awakening.Footnote ¹⁵⁴ His book helped introduce a “Whig narrative,” reflected in Lecky’s famous line and still dominant when Reginald Coupland wrote The British Anti-slavery Movement in 1933.Footnote ¹⁵⁵ In this framework, antislavery stood as part of the larger history of British progress—from feudalism to capitalism, tyranny to liberty, and darkness to light. Not until 1944, when Eric Williams published Capitalism and Slavery, would this general view be questioned.Footnote ¹⁵⁶

But Sharp’s representation of progressive historical change was also important in its original, eighteenth-century context, as a response to the history of slavery itself. As David Brion Davis emphasized, the antislavery movement had to confront the widespread prevalence and relative historical constancy of slaveholding from the classical period onward.Footnote ¹⁵⁷ By 1769, the Atlantic slave trade had existed for more than two hundred years without attracting widespread public criticism. In this context, Sharp’s progressive account of legal history was part of a broader attempt to confront the history of slavery. Throughout his writings, Sharp was at pains to portray slavery as a premodern form of barbarism. Antislavery, by contrast, was modern, civilized, and enlightened. His account of law promoted this dichotomy. Villeinage—and bondage more broadly—was a “disgraceful and uncivilized” custom, a relic of “feudal tyranny.”Footnote ¹⁵⁸ Antithetical to the spirit of progress that characterized English history, it was thus doomed to abolition. Sharp’s common law, “after a long conflict with the barbarity of several generations,” rose steadily towards freedom.Footnote ¹⁵⁹

The key rhetorical point was clear: slavery was not a normal part of the modern world; it belonged instead in a remote, un-Christian past. Like many of Sharp’s claims, this was an inventive reframing of the past with normative implications for the present. For Sharp, the notion of historical progress served as a means of disrupting the eminent regularity of Atlantic slavery in eighteenth-century society. Against the implausibility of abolition, Sharp helped create a competing image: the inevitability of modern freedom. During the nineteenth century, after abolition, many Britons would abandon and subvert this view of time and modernity while decrying the economic effects of emancipation.Footnote ¹⁶⁰ In our own times, historians have sought to connect the history of Atlantic slavery to modern economic development in numerous ways.Footnote ¹⁶¹ But in the late eighteenth century, as abolitionism gained political force, Sharp’s conception of modernity played an important role in the emergence of an antislavery worldview. In this worldview, abolition suddenly appeared necessary, as part of the unfolding of modern progress.