government is the form of government that is least offensive to a human’s
inherent right to liberty. Consequently, a democratic government has no moral
right to detract wantonly from the rights of a minority; indeed it is under a
positive duty to respect and protect them.
Naked use of majority power to oppress a minority is labelled ochlocracy (a
formal term for mob rule) or tyranny of the majority. If you have the numbers,
you have the power and you have at least an appearance of legitimacy.
933
Slavery is the most graphic illustration of oppression since it involves one of
the most fundamental invasion of rights possible, legal ownership by one
person (the master) over another person (the slave). This actually arose for
adjudication in English law in the celebrated case of Charles Stuart, the
supposed master, and James Somerset, his would be slave.
Charles Stuart purchased Somersett
or Somerset (he then had no first name)
as a slave in Virginia in 1749. In 1769, Stuart along with Somerset, traveled to
England. While there, Somerset met and became involved with people
associated with the anti-slavery movement and was christened in a church
ceremony. He was given the name James, one of the Apostles, as a mark that
God had always recognised him as one of God’s chilren.
Later in 1771, Somerset ran away but was recaptured by Stuart and put on
board a ship bound for Jamaica
where Somerset was to be sold. When
Somerset's god-parents (from the christening) learned of this, they obtained a
writ of habeas corpus
from the Court of King’s Bench requiring the ship's
captain to produce Somerset in court so that the court could adjudicate on the
legality of his imprisonment on the ship.
934
Counsel for Somerset submitted in support of his client’s case that “that
England was too pure an air for a slave to breathe in”. In this same spirit, the
Chief Justice of the King's Bench, Lord Mansfield, spoke of slavery in terms
that also echoed John Locke:
The state of slavery is of such a nature, that it is incapable of being introduced on any reasons,
moral or political; but only positive law, which preserves its force long after the reasons,
occasion, and time itself from whence it was created, is erased from memory: it's so odious,
that nothing can be suffered to support it, but positive law. Whatever inconveniences,
___________________
933
For criticisms of majoritarianism see Chemerinsky (1989) pp 74-77.
934
Somerset v Stewart
(1772) Lofft 1; 20 Howell's State Trials 79 (Somersett's
Case)
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