Somersett's Case

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Somersett's Case (R. v. Knowles, ex parte Somersett) ^[1] is a famous judgment of the English Court of King's Bench in 1772 which held that slavery was unlawful in England (although not elsewhere in the British Empire). It is one of the most significant milestones in the campaign to abolish slavery throughout the world.

The slave, James Somersett was the property of Charles Stewart, a customs officer from Boston, Massachusetts, then a British colony in North America. Stewart brought Somersett to England in 1769, but in 1771 Somersett escaped. He was recaptured in November and imprisoned on a ship bound for the British colony of Jamaica. An activist layman, Granville Sharp, intervened and made an application before the Court of King's Bench for a writ of habeas corpus, and the captain of the ship was ordered to produce Somersett before the Court of King's Bench.

The Chief Justice of the King's Bench, Lord Mansfield, ordered a hearing for the following January. In fact, following an adjournment, it was not until February 1772 that the case was heard. In the meantime, it had attracted a great deal of attention in the press, and members of the public were forthcoming with donations to fund lawyers for both sides of the argument. When the case was heard, no less than five advocates appeared for Somersett, speaking at three separate hearings between February and May. These lawyers included Francis Hargrave, a young lawyer who made his reputation with this, his first ever case.

On behalf of Somersett it was argued that while colonial laws might permit slavery, neither the common law of England nor any law made by Parliament recognised the existence of slavery, and slavery was therefore illegal.^[2] Moreover, English contract law did not allow for any person to enslave himself, nor could any contract be binding without the person's consent. The arguments thus focused on legal details rather than humanitarian principles. When the two lawyers for Charles Stewart put their case, they argued that property was paramount and that it would be dangerous to free all the black people in England. Lord Mansfield, having heard both sides of the argument, retired to make his decision, and reserved judgment for over a month.

Finally, on 22 June 1772 he gave his judgment, which concluded:^[3]

"...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."

Somersett was freed, and his supporters, who included both black and white Londoners, immediately celebrated a great victory.

Lord Mansfield is often misquoted as declaring that "The air of England is too pure for a slave to breathe", but no such words appear in the judgment. Instead, they appear repeatedly in the arguments of counsel for Somersett, who cited a report of a case from 1569, in the reign of Queen Elizabeth I, where

"...one Cartwright brought a slave from Russia and would scourge him; for which he was questioned; and it was resolved, that England was too pure an air for a slave to breathe in."

However, it is not actually clear that this was said in the Cartwright case either, and many people believe it was actually a misquote of an excerpt from Chief Justice Holt's judgment in Smith v Brown (1702) 2 Salk 666, where he is reported to have said:

"as soon as a negro comes to England he is free; one may be a villein in England, but not a slave."

Contents 1 The precedent 2 Later developments 3 Transcript 4 Comparisons elsewhere 5 References 6 See also 7 Notes 8 External link

[edit] The precedent

Legal academics have argued for years over precisely what legal precedent was set in the case.^[4] Lord Mansfield himself later expressed the view that all the case decided was that a slave could not be forcibly removed from England against his will.^[5] However, whatever the technical legal ratio decidendi of the case, it was widely understood by the public at large to mean that on English soil at least, no man was a slave.

Mansfield's judgment was deliberately silent as to what the status of a slave in England was, and it is improbable that this was accidental. Although Mansfield was an abolitionist, he was extremely concerned by the potential economic trauma which sudden abolition would bring. He had encouraged the parties to settle this matter, and in an earlier trial in which he had sat,^[6] Counsel for Stewart had been funded by various slave holding interests, and the thrust of their arguments to Mansfield had been very much directed to discourage any finding wider than was strictly necessary to determine the legality of James Somersett's detention, and it was an invitation which Mansfield accepted.

[edit] Later developments

While Somersett's case provided a significant boon to the abolitionist movement, and effectively ended the holding of slaves within 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, not only outlawing the practice by British subjects but also seeking to suppress the trade by foreigners through the sea power of the Royal Navy. Although the slave trade was effectively suppressed, slavery continued to exist in various parts of the British Empire until it was finally abolished by the Slavery Abolition Act 1833.

Somersett's case is often presented as a great victory for the abolitionists and for basic rights of man and natural law generally, but that may simply be the way that it was portrayed at the time by the media (with the assistance of a well organised abolitionist movement). The slave merchants who funded Stueart's defence were not at all anxious about the fact of James Somersett, but were deeply concerned about how abolition might affect their overseas interests. In the end, they were able to continue trading slaves for another 61 years after Lord Mansfield's decision. However, the person who would probably have been most satisfied with the judgment may have been Mansfield himself. Having always opposed sudden abolition and been in favour of gradual eradication of slavery, Mansfield might well have considered the slow phasing out of slavery over the next half century as precisely what he had always advocated. In the end history remembers him as a man who struck a powerful blow for the freedom of enslaved Africans; the reality is more that he was a man who was forced into making a judicial determination that he had always tried desperately to avoid, but in the end, made the decision as he best he thought he could.

[edit] Transcript

No official transcript exists of Lord Mansfield's oral judgement. Newspapers widely reported the judgment, although surprising variations appear between the various reports. Below is the text of a letter in the London General Evening Post of June 21–23, 1772 which purports to summarise the judgment.

To the Editor of the general evening post. SIR,

The following is as correctly my Lord M——d's Speech on the Negro Cause, as my memory, assisted by some notes, could make it: it begins after the stating of the return.

Your's, & c. A CONSTANT READER.

"We pay due attention to the opinion of Sir Philip York and Mr. Talbot in the year 1729, by which they pledged themselves to the British planters for the legal consequences of bringing slaves into this kingdom, or their being baptized; which opinion was repeated and recognized by Lord Hardwicke, sitting as Chancellor on the 19th of October, 1749, to the following effect: he said, that trover would lay for a negro slave; that a notion prevailed, that if a slave came into England, or became a Christian, he thereby became emancipated; but there was no foundation in law for such a notion; that when he and Lord Talbot were Attorney and solicitor General, this notion of a slave becoming free by being baptized prevailed so strongly, that the planters industriously prevented their becoming Christians; upon which their opinion was taken, and upon their best consideration they were both clearly of opinion, that a slave did not in the least alter his situation or state toward his master or owner, either by being christened, or coming to England; that though the statute of Charles II. had abolished tenure so far, that no man could be a villein regerdane [sic], yet if he would acknowledge himself a villein engrossed in any Court of Record, he knew of no way by which he could be entitled to his freedom without the consent of his master. We feel the force of the inconveniences and consequences that will follow the decision of this question. Yet all of us are so clearly of one opinion upon the only question before us, that we think we ought to give judgment, without adjourning the matter to be argued before all the Judges, as usual in the Habeas Corpus, and as we at first intimated an intention of doing in this case. The only question then is, Is the cause returned sufficient for the remanding him? If not, he must be discharged. The cause returned is, the slave absented himself, and departed from his master's service, and refused to return and serve him during his stay in England; whereupon, by his master's orders, he was put on board the ship by force, and there detained in secure custody, to be carried out of the kingdom and sold. So high an act of dominion must derive its authority, if any such it has, from the law of the kingdom where executed. A foreigner cannot be imprisoned here on the authority of any law existing in his own country: the power of a master over his servant is different in all countries, more or less limited or extensive; the exercise of it therefore must always be regulated by the laws of the place where exercised. The state of slavery is of such a nature, that it is incapable of now being introduced by Courts of Justice upon mere reasoning or inferences from any principles, natural or political; it must take its rise from positive law; the origin of it can in no country or age be traced back to any other source: immemorial usage preserves the memory of positive law long after all traces of the occasion; reason, authority, and time of its introduction are lost; and in a case so odious as the condition of slaves must be taken strictly, the power claimed by this return was never in use here; no master ever was allowed here to take a slave by force to be sold abroad because he had deserted from from his service, or for any other reason whatever; we cannot say the cause set forth by this return is allowed or approved of by the laws of this kingdom, therefore the man must be discharged."

However, the letter is somewhat at variance with other sources reporting on the words of the Mansfield Decision (including the citation in the previous section of this article). Such inconsistencies are perhaps to be expected given the enthusiasm which which abolitionists propogated the decision, and the spin which they sought to put on it in relation to their campaign.

• From Slavery in England and the Law

[edit] Comparisons elsewhere

The decision of the English court in Somersett's Case is sometimes contrasted with the decision of the U.S. Supreme Court, some 85 years later, in Dred Scott v. Sandford 60 U.S. (19 How.) 393 (1857), where the U.S. Supreme court held that a black "whose ancestors were ... sold as slaves" was not entitled to the rights of a federal citizen and therefore had no standing in court, and that blacks were "beings of an inferior order" not included in the phrase "all men" in the U.S. Declaration of Independence nor afforded any rights by the United States Constitution.

The case is also sometimes compared with North Carolina v. Mann, 13 N.C. 167 (N.C. 1830), in which the Supreme Court of North Carolina ruled that slaveowners could not be convicted for killing their slaves.

[edit] References

• 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
• Steven M. Wise "Though The Heavens May Fall: The Landmark Trial That Led To The End Of Human Slavery (2005) ISBN 0738206954

[edit] See also

• Abolition of slavery
• Slavery at common law

[edit] Notes

[edit] External link

Imperial Politics and English Law: The Many Contexts of Somerset by Ruth Paley, Law and History Review