|Somerset v Stewart|
|Citation(s)||(1772) 98 ER 499, (1772) 20 State Tr 1, (1772) Lofft 1|
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, 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.
Mansfield limited his judgement to the issue of whether a person, regardless of slave status, 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.
James Somersett, an enslaved African, was purchased by Charles Stewart or Steuart, a Customs officer 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 legal.
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.
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 illegal. 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.
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):
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.
Trinity Term, June 22, 1772. 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, 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."
Legal academics have argued for years over precisely what legal precedent was set in the case. 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 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 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 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. 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 legally compel them to leave England with him. The 1749 claim relied on the 1729 opinion, which quoted no precedents or rationale. 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, 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 by the slavery law of Antigua. 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 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.
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.. 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. 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.
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.
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. 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".
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. 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.
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.
- Usherwood, Stephen. (1981) The Black Must Be Discharged - The Abolitionists' Debt to Lord Mansfield History Today Volume: 31 Issue: 3. 1981.
- Receiver-General for the Eastern Middle District of British North America; born in the Orkney Islands in 1725, he had emigrated to Virginia in 1741. His name is sometimes misspelled Stewart
- Trade in serfs had been abolished in 1102
- Letter to the London General Evening Post of 21–23 June 1772, headed by the following. "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." 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 may be related to the enthusiasm which abolitionists propagated the decision, and the spin which they sought to put on it in relation to their campaign. See, Slavery in England and the Law
- For example, Jerome Nadelhaft, The Somersett Case and Slavery: Myth, Reality and Representation; Edward Fiddes, "Lord Mansfield and the Sommersett Case" (1934) 50 Law Quarterly Review 499; James Oldham, 'New Light on Mansfield and Slavery' (1988) 27 Journal of British Studies 45.
- fullest version in Howell's State Trials vol. 20, pp. 1-82; full decision and summary of arguments in English Reports vol. 98, pp. 499-510.
- (1749) Amb 75, 27 ER 47.
- (1827) 2 Hag Adm 94.
- (1824) 2 B&C 448.
- e.g. R v Stapylton (unreported).
- Peter P. Hinks, John R. McKivigan, R. Owen Williams (2007) Encyclopedia of antislavery and abolition p.643. Greenwood Publishing Group, 2007
- Wiecek, William M. "Somerset: Lord Mansfield and the Legitimacy of Slavery in the Anglo-American World", University of Chicago Law Review, Vol. 42, No. 1 (Autumn 1974), pp. 86–146 (via JSTOR- subscription)
- There is an extended account of the case in Chapter 2 of Peabody, Sue, There Are No Slaves in France: The Political Culture of Race and Slavery in the Ancien Régime, Oxford University Press US, 2002, ISBN 0-19-515866-0, ISBN 978-0-19-515866-3, google books
- 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.