James Somersett

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James Somerset or Somersett was a young African slave who was purchased by Charles Stuart in Virginia in 1749. Stuart was involved in English government service and traveled as part of his duties accompanied by Somerset, who at the time did not have a first name.

In 1769, Stuart along with Somersett traveled to England. While in England, Somersett met and became involved with people associated with the anti-slavery movement in England including the well known activist Granville Sharp. During this period, Somersett was christened with the name James in a church ceremony.

In 1771, Somersett ran away. Stuart posted a reward and Somersett was recaptured. Stuart then had Somersett put on board a ship bound for Jamaica where Somersett was to be sold. Somerset's god-parents from the christening ceremony discovered Somerset's condition and location. Going before the King's Bench, they obtained a writ of habeas corpus requiring the ship's captain to produce Somersett in court, which was done.

By this time in England, the general public had a poor opinion of the institution of slavery and the time was ripe for a decision to be forced as to whether slaves in England were in fact free. Somersett sued for his freedom, supported by anti-slavery groups, from Stuart, supported by planters from the West Indies who were interested in continuing the practice of slavery, in a trial before the King's Bench, the highest court in England.

In Somersett's Case, the Chief Justice of the King's Bench, Lord Mansfield, issued a judgment which concluded:

"...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, therefore, may follow from a decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged."

While Somersett's case provided legal precedent that the state of slavery was unlawful in England itself, serfdom having died out there centuries before, it did not end British participation in the slave trade or slavery in other parts of the British Empire. It was not until 1807 that Parliament decided to suppress the slave trade, and slavery continued to exist in various parts of the British Empire until it was finally abolished by Act of Parliament in 1833. However, because of the Somersett case, there has never been a law passed to make slavery illegal in Britain - it has never been legal.

However there may be an argument that the illegality of slavery in England and Wales now rests on a statutory footing following the introduction of the Human Rights Act 1998. That Act introduced the European Convention on Human Rights and Fundamental Freedoms into domestic English law. Under Article 4(1) of the Convention, no-one may be held in slavery or servitude. Under section 6(1) of the Act, it is unlawful (subject to certain exceptions) for a public authority to act in a way incompatible with a Convention right. Under section 6(3) a court or tribunal counts as a public authority. Thus there is an argument that when applying the law, a court, as a public authority, cannot infringe the prohibition of slavery. Under section 6(2), an exception allows public authorities, including courts, to infringe Convention rights pursuant to Acts of Parliament (primary legislation) which are in themselves incompatible with Convention rights, or to statutory instruments (secondary legislation) made under such an Act. However, nothing in section 6(2) allows the courts to infringe Convention rights pursuant to the doctrines of the common law, which are not legislation. Therefore if a court would be acting incompatibly with Convention rights by recognising slavery, the court cannot do so, even if the common law would allow such a course. That may mean that the purported owner could not rely on his alleged ownership of the supposed slave in any court of law, effectively rendering his rights of ownership ineffectual. This interpretation of the law is not, however, beyond all doubt.

[edit] References

Blumrosen, Alfred W., Blumrosen, Ruth G. Slave nation: how slavery united the colonies and sparked the American Revolution. Sourcebooks, 2005.
Jerome Nadelhaft. "The Somersett Case and Slavery: Myth, Reality, and Repercussions," Journal of Negro History, Vol. 51, No. 3 (Jul., 1966), pp. 193-208 online at JSTOR
Wise, Steven M.Though the Heavens May Fall, Perseus Books, Cambridge, MA, 2005.
The Newsworthy Somersett Case: Repercussions in Virginia