Freedom v. slavery: Lawsuits, petitions and the legitimacy of slavery in the British colonies and the United States

The proposition that Africans and their descendants could be enslaved because they were bought and sold as captives of "just wars," formed the basis of the legal fiction that they were property. However, the institution of slavery in the British Colonies and in the United States was always at odds with the legal principles of both English and American law. Several early cases addressed the question of making one person the property of another. In 1677, the Court of the King's Bench ruled, in the Anonymous case, that property could be held in a person. In two subsequent cases Chamberlaine v. Harvey, in 1696-97, and Smith v. Gould, in 1706, the Court ruled that property could not be held in a person. Both of these rulings should have been debilitating legal barriers to slavery in the British colonies. Additionally, Britain maintained a "not contrary" policy (a benchmark for testing the validity of positive laws) that required all the laws of the colonies to be consistent with the common law of England. This was also reflected in a 1696-97 statute under William III. English common law had no provision for the enslavement of people. The principles of American law originated in English law and Britain's "not contrary" policy is carried over into the assertion of the American Constitution as the supreme law of the United States to which the various states are subordinate. However, the benchmark of all English and American law is the legal proposition that all men are free and equal.;Enslaved and free blacks challenged slavery in various ways, but their lawsuits for freedom and petitions for civil rights stand as the greatest contradiction to slavery. Despite the racially oppressive social structure of slavery, the English and American legal systems always allowed enslaved persons to sue for freedom and petition for redress of grievances without discrimination. These facts question the legal foundation of slavery and, therefore, provide the motivation of this dissertation which traces the legal origins of slavery in the British colonies and the United States and explains why it was not a legally valid institution.