| Somersett's case | |
|---|---|
| Court | King's Bench |
| Citation(s) | (1772) 20 State Tr 1, (1772) Lofft 1 |
| Case opinions | |
| Lord Mansfield | |
| Keywords | |
| Slavery, abolition | |
R v Knowles, ex parte Somersett (1772) 20 State Tr 1 is a famous judgment of the English Court of King's Bench in 1772 which held that slavery was unsupported by law in England and Wales (although not elsewhere in the British Empire). The judgment made by Lord Mansfield decided that:
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.[1]
Contents |
The slave, James Somersett, was the property of Charles Stewart or Steuart, a Customs officer[2] from Boston, Province of Massachusetts Bay, a British crown colony in North America. Stewart brought Somersett to England in 1769, but in 1771 Somersett escaped. He was recaptured in November and imprisoned on the ship Ann and Mary (Capt. John Knowles) bound for the British colony of Jamaica. However, three people claiming to be Somersett's godparents, John Marlow, Thomas Walkin and Elizabeth Cade, made an application before the Court of King's Bench for a writ of habeas corpus, and Captain Knowles was ordered to produce Somersett before the Court of King's Bench, which would determine whether his imprisonment was legal.
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. An activist layman, Granville Sharp, who continually sought test cases against the legal justifications for slavery, was Somersett's real backer, and when the case was heard, no fewer than five advocates appeared for the slave, 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 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.[3] 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. He gave his judgment on 22 June 1772 [this version is transcribed from a newspaper report, with modern paragraphing]:[4]
| “ | 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 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. |
” |
Somersett was freed, and his supporters, who included both black and white Londoners, immediately celebrated a great victory. Whilst argument by counsel may have been based primarily on legal technicalities, it is evident that Lord Mansfield himself believed a great moral question had been posed, and that he deliberately avoided answering that question in full, because of its profound political and economic consequences. 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."
Legal academics have argued for years over precisely what legal precedent was set in the case.[5] Differences in reports of the judgment make it hard to determine just how far Lord Mansfield went in acknowledging the broader issues behind his deliberately narrow ruling. The passage of the judgment in the standard collections of law reports[6] does not appear to refer to the removal from the country of slaves by force whereas the same passage in the informal report by letter to the Evening Post, quoted above, does.
In 1785, Lord Mansfield himself expressed the view in R v Inhabitants of Thames Ditton[7] that all the Somersett case decided was that a slave could not be forcibly removed from England against his will, which would support the account of his judgment given in The Times letter, and is the strongest argument for a limited scope to the decision. Certainly Mansfield's judgment in the Somersett case does not expressly say that slaves became free when they set foot in England — it is silent as to what their status in England was — although 13 years later in the Thames Ditton case, Lord Mansfield appeared to compare a slave's status to that of 'villein in gross' — ie, an ancient feudal status of servitude which had not technically been abolished from English Law but which had died out in practice. However, he had pointedly not done so in the Somersett case despite the invitation of Stewart's counsel.
Nevertheless, the Somersett judgment, even if limited to prohibiting the forcible removal of slaves from England, plainly did establish a radical precedent. It went against recent legal authority in both the official opinion of the Attorney-General, Sir Philip Yorke and the Solicitor-General, Mr Talbot in 1729, and the court decision of Sir Philip Yorke, by then Lord Chancellor Hardwicke, in 1749 in the case of Pearne v Lisle.[8] These decisions had stated that slaves were mere items of property (Hardwicke described them as 'like stock on a farm') who were not emancipated either by becoming a Christian or by entry into England, that possession of them could be recovered by the legal action of trover and that their master might legally compel them to leave England with him. However, the 1749 claim relied on the 1729 opinion, which itself quoted no precedents or rationale, and there were other cases with different outcomes before 1772, notably Shanley v Harvey (1763) and R. v Stapylton (1771, also before Lord Mansfield) — for details, see article Slavery at common law.
The precedent established by Somersett's case went even further. In The Slave Grace in 1827[9] Lord Stowell upheld the decision of the Vice-Admiralty Court in Antigua where a slave who had returned to the colonies, having resided in England for a year where she was free and no authority could be exercised over her, but on her voluntary return to Antigua the right to exercise such authority existed there.[9] Lord Stowell criticised Lord Mansfield's judgment in the Somersett case, describing it as having reversed the judgment of Lord Hardwicke and establishing that "the owners of slaves had no authority or control over them in England, nor any power of sending them back to the colonies". Lord Stowell went onto say "Thus fell a system which had existed in this country without doubt, and which had been occasionally forced upon its colonies and has continued to this day — that is, above fifty years — without further interruption". This wider reading of Somersett's case appears to be supported by the judgment of Best J in Forbes v Cochrane in 1824[10] where he describes the Somersett case as entitling a slave in England to discharge and rendering any person attempting to force him back into slavery as guilty of trespass.
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.
While Somersett's case provided a boon to the abolitionist movement and ended the holding of slaves within England, 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 suppressed, slavery continued in various parts of the British Empire until it was abolished by the Slavery Abolition Act 1833. The slave merchants who funded Stewart's defence were not at all anxious about the fate of James Somersett but were 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. This has led some to argue that the importance of the decision lies more in the way in which it was portrayed at the time and later by the media (with the assistance of a well organised abolitionist movement).
Certainly, it is clear that Lord Mansfield would far rather not have made any decision at all. Although he was an abolitionist, he was extremely concerned by the potential economic trauma which sudden abolition would bring and might well have considered the slow abolition of slavery over the next half century as what he had advocated. The national economy was at the time based to a great extent upon the slave trade and indeed slavery in the colonies and a judgment against slavery even in England could begin to undermine that system, as some argued that the law of England should apply on English ships even if not in the Colonies. Stewart's Counsel, funded and encouraged by the slave merchants, argued that the consequence of a judgment in Somersett's favour might be to free the slaves in England, said to be 14,000 in number. As Lord Mansfield said in the case report "The setting 14,000 or 15,000 men at once free loose by a solemn opinion is much disagreable in the effects it threatens". As a result, he tried to persuade Stewart to release Somersett and so avoid a decision, as he had done in other cases.[11] Indeed, in the Thames Ditton case in 1785, 99 Eng. Rep. 891, Lord Mansfield sought to limit the impact of the Somersett case, although by that time the political climate in England had become considerably more conservative because of the American Revolution. In 1780 his house had been firebombed by a Protestant mob because of his judgments in support of rights for Catholics, which may well have caused him to be more cautious on politically sensitive issues. Far from being an ardent radical, it appears that Lord Mansfield was forced into making a judicial determination that he had tried to avoid but in the end made the decision as best he could.
Despite all his concerns and all the potential consequences, Lord Mansfield freed James Somersett. He did so in the face of the opinion of the Attorney-General and Solicitor-General in 1729, men whom Lord Mansfield in the Somersett case described as "two of the greatest men of their own or any times". He could have followed those decisions as he would have been legally justified in doing or he could have tried to free Somersett on a technicality but because both the pro- and anti-slavery lobbies wanted a ruling, he did neither. As in the Slave Grace case, Lord Mansfield's judgment went far further than it needed to go to free Somersett. He described the system of slavery as 'odious' at a time when the slave trade was at its height and the abolition movement was in its infancy. The prominence given to the case brought the issue in to the public arena as never before and was interpreted as ending slavery in England, which is what Mansfield had believed it might do. The case remains Lord Mansfield's legacy as a watershed in the abolition of slavery and one of the finest examples in English law of the maxim he quoted as a warning to the parties in the case before he began his months of deliberation — "let justice be done though the heavens fall".
The Somersett case became a significant part of the common law of slavery in the English-speaking world, and helped launch the movement to abolish slavery.[12] The Scottish case of Joseph Knight against his owner John Wedderburn (discussed in Slavery at common law) began in 1774 and, at its conclusion in 1778, showed that slavery had as little support in Scottish common law as in English. It was suspected by many lawyers that the same would be true in British colonies, which had clauses in their Royal charters requiring their laws not to be contrary to the laws of England—they usually contained qualifications along the lines of "so far as conveniently may be", but it was anticipated that the principles behind Lord Mansfield's decision would demand a rigorous definition of "conveniently" if a case was taken to its ultimate conclusion. The Somersett case was reported in detail by the American press and in Massachusetts there were several attempts by slaves to obtain freedom in 1773–74, which were supported by the General Court but vetoed by successive Governors. As a result, paradoxically, both pro-slavery and anti-slavery colonies, for opposite reasons, hoped for a rapid break with English law in order to achieve their goals with regard to slavery.[13]
The way those ambitions were fulfilled in the Constitution of the United States without using the words "slave" or "slavery" is well known, as is the later period of tension which saw the pro-slavery states making increasingly cynical efforts to maintain a legal basis for slavery. The decision of the King's Bench in Somersett's Case may be 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.
Somersett's case has fascinating parallels with the major French case on the same question, Jean Boucaux v. Verdelin of 1738. Boucaux was born a in slave in the French colony of Saint-Domingue (now Haiti), and was brought by his master Verdelin, an army sergeant, to France in 1728, where he served as his cook. After some years Verdelin began to seriously mistreat Boucaux, apparently after he married a French woman without Verdelin's consent, and then had him imprisoned as he feared he would escape. Boucaux sued for his freedom from prison and confirmation of his free status. Following French practice the arguments of the lawyers are recorded, but those for the judgment are not. The lawyers' arguments covered the whole history of the status of slavery in mainland France, which was at least as confused as in England. Boucaux won his case and was awarded back wages for his whole period in France. A law was passed later in the year to clarify some of the issues the case had raised, without abolishing entirely the status of slave in France. Indeed, regulations were introduced for their registration; in particular it was envisaged that masters should be able to have colonial slaves trained in a "useful trade" in France, now for up to three years, before returning them to the colonies. Other cases followed.[14]