Somersett's Case

Somerset v Stewart
Court	King's Bench
Citation(s)	(1772) 98 ER 499, (1772) 20 State Tr 1, (1772) Lofft 1
Case opinions
Lord Mansfield
Keywords
Slavery, abolition

Somerset v. Stewart (1772) 98 ER 499 is a famous judgment of the English Court of King's Bench in 1772, which held that chattel slavery was unsupported by existing 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 by positive law [ statute ], which preserves its force long after the reasons, occasions, and time itself from whence it was created, is erased from memory. It is so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.^[1]

Slavery had never been authorized by statute in England and Wales, and Mansfield's decision found it also unsupported in common law. Mansfield limited his judgement to the issue of whether a person, regardless of being a slave, could be removed from England against his will, but even this reading meant that certain property rights in chattel slaves were unsupported by common law.

Facts

James Somersett, an enslaved African, was purchased by Charles Stewart or Steuart, a Customs officer^[2] when he was in Boston, Province of Massachusetts Bay, a British crown colony in North America. Stewart brought Somersett with him when he returned to England in 1769, but in 1771 the man escaped. After Somersett was recaptured in November, Stewart had him imprisoned on the ship Ann and Mary (Capt. John Knowles), bound for the British colony of Jamaica to be sold to a plantation for labour. Three people claiming to be Somersett's godparents from his baptism as a Christian in England, John Marlow, Thomas Walkin, and Elizabeth Cade, made an application before the Court of King's Bench for a writ of habeas corpus. Captain Knowles was ordered to produce Somersett before the Court of King's Bench, which would determine whether his imprisonment was lawful.

The Chief Justice of the King's Bench, Lord Mansfield, ordered a hearing for the following January. It was not until February 1772 that the case was heard. In the meantime, the case had attracted a great deal of attention in the press, and members of the public donated monies to fund lawyers for both sides of the argument. An abolitionist layman, Granville Sharp, who continually sought test cases against the legal justifications for slavery, was Somersett's real backer. When the case was heard, five advocates appeared for Somersett, speaking at three hearings between February and May. These lawyers included Francis Hargrave, a young lawyer who made his reputation with this, his first case, and the famous Irish lawyer and orator John Philpott Curran whose lines in defence of Somersett were often quoted by American abolitionists (such as Frederick Douglass).

Somersett's advocates 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 unlawful.^[3] The advocates also argued that 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 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.

Judgement

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]

“	Lord Mansfield was the leading commercial judge of his age. Compassion will not, on the one hand, nor inconvenience on the other, be to decide; but the law: in which the difficulty will be principally from the inconvenience on both sides. Contract for sale of a slave is good here; the sale is a matter to which the law properly and readily attaches, and will maintain the price according to the agreement. But here the person of the slave himself is immediately the object of enquiry; which makes a very material difference. The now question is, whether any dominion, authority or coercion can be exercised in this country, on a slave according to the American laws? The difficulty of adopting the relation, without adopting it in all its consequences, is indeed extreme; and yet, many of those consequences are absolutely contrary to the municipal law of England. We have no authority to regulate the conditions in which law shall operate. On the other hand, should we think the coercive power cannot be exercised: 'tis now about fifty years since the opinion given by two of the greatest men of their own or any times, (since which no contract has been brought to trial, between the masters and slaves;) the service performed by the slaves without wages, is a clear indication they did not think themselves free by coming hither. The setting 14,000 or 15,000 men at once free loose by a solemn opinion, is much disagreeable in the effects it threatens. There is a case in Hobart, (Coventry and Woodfall) where a man had contracted to go as a mariner: but the now case will not come within that decision. Mr. Stewart advances no claim on contract; he rests his whole demand on a right to the negro as slave, and mentions the purpose of detainure to be the sending of him over to be sold in Jamaica. If the parties will have judgment, fiat justitia, ruat cœlum, let justice be done whatever be the consequence. 50l. a head may not be a high price; then a loss follows to the proprietors of above 700,000l. sterling. How would the law stand with respect to their settlement; their wages? How many actions for any slight coercion by the master? We cannot in any of these points direct the law; the law must rule us. In these particulars, it may be matter of weighty consideration, what provisions are made or set by law. Mr. Stewart may end the question, by discharging or giving freedom to the negro. I did think at first to put the matter to a more solemn way of argument: but if my brothers agree, there seems no occasion. I do not imagine, after the point has been discussed on both sides so extremely well, any new light could be thrown on the subject. If the parties chuse to refer it to the Common Pleas, they can give them that satisfaction whenever they think fit. An application to Parliament, if the merchants think the question of great commercial concern, is the best, and perhaps the only method of settling the point for the future. The Court is greatly obliged to the gentlemen of the Bar who have spoke on the subject; and by whose care and abilities so much has been effected, that the rule of decision will be reduced to a very easy compass. I cannot omit to express particular happiness in seeing young men, just called to the Bar, have been able so much to profit by their reading. I think it right the matter should stand over; and if we are called on for a decision, proper notice shall be given.	”

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, Lord Mansfield appeared to believe that a great moral question had been posed, and 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 are part of the arguments of counsel for Somersett, who cited a report of a case from 1569, in the reign of Queen Elizabeth I, in which

"...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."

It is not clear that this was said in the Cartwright case. Some legal historians think it was a misquote of an excerpt from Chief Justice Holt's judgment in Smith v. Brown (1702) 2 Salk 666, in which 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."

Significance

Precedent

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 expressed the view in R v Inhabitants of Thames Ditton^[7] that his ruling in the Somersett case decided only 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. 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. Thirteen 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 that had not technically been abolished from English Law but which had died out in practice. He had not done so in the Somersett case despite the invitation of Stewart's counsel.

The Somersett judgment, even if limited to prohibiting the forcible removal of slaves from England, established a radical precedent. It went against recent common law 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 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 lawfully compel them to leave England with him. The claim of 1749 relied on the opinion of 1729, which quoted no precedents and gave no reasoning. There were other freedom suits 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 was seen to have wider implications. In The Slave Grace in 1827,^[9] Lord Stowell upheld the decision of the Vice-Admiralty Court in Antigua, whereby a slave who had returned to the colonies, after having resided in England for a year where she was free and no authority could be exercised over her, by her voluntary return had to submit to the authority over her resulting from the slavery law of Antigua.^[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 further said,

"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] in which he describes the Somersett case as entitling a slave in England to discharge (from that status), and rendering any person attempting to force him back into slavery as guilty of trespass.

Whatever the technical legal ratio decidendi of the case, the public at large widely understood the Somersett Case to mean that, on English soil at least, no man was a slave.^{[citation needed]}

Domestic effect

While Somersett's case provided a boon to the abolitionist movement and ended the holding of slaves within England, it did not end British participation in the slave trade or slavery in other parts of the British Empire, where colonies had established slave laws. 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 anxious about James Somersett or the relatively limited number of slaves in Great Britain, but about how abolition might affect their overseas interests. In the end, merchants could continue trading slaves for 61 years after Lord Mansfield's decision. Commentators have argued that the decision's importance lay in the way it was portrayed at the time and later by the newspapers, with the assistance of a well organised abolitionist movement.

Lord Mansfield would appear to have preferred not to have made any decision. .^{[citation needed]} Although an abolitionist, he was extremely concerned about the economic effects of outright abolition. The national economy was at the time based to a great extent upon the slave trade and slavery in the colonies supported revenue-producing commodity crops.^{[citation needed]} A judgment against slavery in England could begin to undermine that system. Abolitionists 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 disagreeable in the effects it threatens". He tried to persuade Stewart to release Somersett and so avoid a decision, as he had done in other cases.^[11]

In 1780 Mansfield's house had been firebombed by a Protestant mob because of his judgments in support of rights for Catholics. In the Thames Ditton case (1785) 99 Eng. Rep. 891, Lord Mansfield appeared to seek to limit the influence of the Somersett case. By that time, the political climate in England had become more conservative in the aftermath of the United States' gaining independence in its revolution. ^{[citation needed]}

Lord Mansfield freed James Somersett by his ruling and did so in the face of the opinion of the Attorney-General and Solicitor-General in 1729, men whom Mansfield in the Somersett case described as "two of the greatest men of their own or any times". As in the Slave Grace case, Lord Mansfield's judgment went further than was needed to free Somersett, if that had been his intention.^{[citation needed]} He described the system of slavery as "odious" at a time when the slave trade was economically lucrative for British merchants and traders, the abolition movement was in its infancy. The prominence the case attracted emphasized the issues to the public. It was widely interpreted as ending slavery in Great Britain. The case remains Lord Mansfield's legacy as a watershed in the abolition of slavery. It is an example 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".^{[citation needed]}

International effect

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 case of Knight v. Wedderburn in Scotland (discussed in Slavery at common law) began in 1774 and was concluded in 1778 with a ruling that slavery had no existence in Scottish common law. Many lawyers suspected that similar determinations would be made 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 colonial press. In Massachusetts several slaves filed freedom suits based on his decision in 1773–74, which were supported by the General Court but vetoed by successive Governors. As a result, 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). 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, as blacks were "beings of an inferior order" who were not included in the phrase "all men" in the U.S. Declaration of Independence and thus were not 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.

Comparable French case

Somersett's case has been compared to the major French case on the same question, Jean Boucaux v. Verdelin of 1738. Boucaux was born a 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. The slave had married a French woman without Verdelin's consent, and the master had him imprisoned for fear that Boucaux would try to escape. Boucaux filed a freedom suit from prison, seeking confirmation of his free status in France. 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.

Boucaux won his case and was awarded back wages for the period of his work in France. Later that year, the national legislature passed a law to clarify some of the issues raised by the case, without totally abolishing slavery in France. The law was implemented with regulations requiring the registration of slaves. The legislature allowed masters to have colonial slaves live and train in a "useful trade" in France for up to three years, without losing the ability to return such slaves to servitude in the colonies. Other cases followed.^[14]

See also

• Abolitionism
• Abolitionism in the United Kingdom
• Slavery at common law
• Ottobah Cugoano
• Dred Scott
• Freedom suits

Notes

References

• Jerome Nadelhaft. "The Somersett Case and Slavery: Myth, Reality, and Repercussions," Journal of Negro History, Vol. 51, No. 3 (July 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 0-7382-0695-4
• Mark S. Weiner, "New Biographical Evidence on Somerset's Case," Slavery and Abolition, Vol. 23, No. 1 (April 2002), 121-36.
• Blumrosen, Alfred W., Blumrosen, Ruth G. Slave nation: how slavery united the colonies and sparked the American Revolution. Sourcebooks, 2005.

External links

• Imperial Politics and English Law: The Many Contexts of Somerset by Ruth Paley, Law and History Review
• Lord Mansfield: Judicial Integrity or its Lack; Somerset’s Case by Alan Watson