Somerset v Stewart
|Somerset v Stewart|
|Decided||22 June 1772|
|Citation(s)||(1772) 98 ER 499, (1772) 20 State Tr 1, (1772) Lofft 1|
Somerset v Stewart (1772) [98 ER 499] (also known as Somersett's Case, v. XX Sommersett v Steuart and the Mansfield Judgment) is a judgment of the English Court of King's Bench in 1772, relating to the right of an enslaved person on English soil not to be forcibly removed from the country and sent to Jamaica for sale. 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.
Slavery had never been authorized by statute within England and Wales, and Lord Mansfield found it also to be unsupported within England by the common law, although he made no comment on the position in the overseas territories of the British Empire. The case was closely followed throughout the Empire, particularly the Thirteen American Colonies. It is seen as a major cause for the American Revolution, particularly in southern colonies, as it was feared at the time that the judgment would lead to abolition there.[page needed][page needed]
James Somerset, 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 Somerset with him when he returned to England in 1769, but in October 1771 Somerset escaped. After he was recaptured in November, Stewart had him imprisoned on the ship Ann and Mary (under Captain John Knowles), bound for the British colony of Jamaica. He directed that Somerset be sold to a plantation for labour. Somerset's three godparents from his baptism as a Christian in England, John Marlow, Thomas Walkin and Elizabeth Cade, made an application on 3 December before the Court of King's Bench for a writ of habeas corpus. Captain Knowles on 9 December produced Somerset before the Court of King's Bench, which had to determine whether his imprisonment was lawful.[page needed]
The Chief Justice of the King's Bench, Lord Mansfield, ordered a hearing for 21 January; in the meantime he set the prisoner free on recognisance. Somerset's counsel's request to prepare arguments was granted, and so it was not until 7 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 money to support the lawyers for both sides of the argument.[page needed]
Granville Sharp, an abolitionist layman who continually sought test cases against the legal justifications for slavery, was Somerset's real backer. When the case was heard, five advocates appeared for Somerset, 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; James Mansfield; Serjeant-at-law William Davy; Serjeant-at-law John Glynn; John Alleyne; and the noted Irish lawyer and orator John Philpot Curran,[page needed] whose lines in defence of Somerset were often quoted by American abolitionists (such as Frederick Douglass).
Somerset's advocates argued that while colonial laws might permit slavery, neither the common law of England nor any statutory law made by Parliament recognised the existence of slavery and slavery was therefore unlawful. 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 any humanitarian principles. When the two lawyers for Charles Stewart put their case, they argued that property was paramount.[page needed] Stewart's counsel, funded and encouraged by the slave merchants, argued that the consequence of a judgment in Somerset's favour might be to free potential slaves in England, have adverse impacts on English trade and for its colonies.[page needed]
The case contributed to increased colonial support for separatism in the Thirteen Colonies of British America, by parties on both sides of the slavery question who wanted to establish independent government and law. The southern colonies wanted to protect slavery and expanded their territory dramatically in the decades after independence was won.
Lord Mansfield heard arguments and first gave a short opinion in court, encouraging the parties to come to a settlement by letting Somerset go free. Otherwise, he said that a judgment would be given. As he put it, let justice be done whatever the consequence.
Easter Term, May 14, 1772.
... 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.
Having heard both sides of the argument, Lord Mansfield 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 letter to the General Evening Post, reporting on the trial. It has modern paragraphing.)
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 black must be discharged.
Lord Mansfield is often misquoted as declaring that "this air is too pure for a slave to breathe in", but no such words appear in the judgment. Instead, these words are part of the peroration of William Davy SL for Somerset, who previously had cited a report of a 1569 case, 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 Lord Chief Justice John Holt's judgment in Smith v Gould, 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."
After the decision
Somerset was freed and his supporters, who included both Black and White Londoners, celebrated in response. It is estimated that England had a community of around 15,000 Africans at the time.[page needed]
There were numerous reaction from prominent individuals in Britain over the decision; Sharp rhetorically asked "why is it that the poor sooty African meets with so different a measure of justice in England and America, as to be adjudged free in the one, and in the other held in the most abject Slavery?" Meanwhile, hymnwriter William Cowper wrote in a poem that "we have no slaves at home - then why abroad?"[page needed] Polymath Benjamin Franklin, who was visiting England at the time, was less impressed with the celebrations of British abolitionists over the case, criticising their celebrations:
O Pharisaical Britain! to pride thyself in setting free a single Slave that happens to land on thy coasts, while thy Merchants in all thy ports are encouraged by thy laws to continue a commerce whereby so many hundreds of thousands are dragged into a slavery that can scarce be said to end with their lives, since it is entailed on their posterity![page needed]
In 1781 Lord Mansfield would overturn the decision of a jury to order an insurer to pay out for the deaths of 130 slaves in the Zong Massacre to the William Gregson slave-trading syndicate. This case again was seen as an important step towards the eventual abolition of the slave trade.[page needed]
The case established that slavery as a concept had no recognition in English law having never been established in the common law or by statute. Slavery as a concept would not be introduced into English law until the passage of the Human Rights Act 1998, which established it as illegal in England and the rest of the UK.
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 of slaves by force from the country, 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 Somerset case decided only that a slave could not be forcibly removed from England against his will. In the Thames Ditton case, a black woman named Charlotte Howe had been brought to England by one Captain Howe. She worked unpaid as all other servants did in his household. After Captain Howe died, his widow moved to Chelsea, however after several months Charlotte returned to Thames Ditton and sought poor relief from the Parish of Thames Ditton. He ruled that Charlotte was not entitled to relief under Poor Laws because relief was dependent on having been "hired" which without contract or payment he ruled she could not have been hired. In the case, Lord Mansfield refused an appeal comparing Charlotte Howe status to that of "villein in gross"—i.e., an ancient feudal status of servitude that had not technically been abolished from English Law but which had died out in practice. He kept the decision narrow on liability of the Parish to provide poor law relief rather than any broader comment on slavery or unpaid servants in England. However Charlotte's case was indicative of a much wider debate at the time – that of the blurred lines between being an unpaid servant or a slave in Britain. Many Black people from Africa, America and the West Indies, made their way to British ports and towns but as there was no slave labour in Britain since the Danelaw they were free in many regards in practice despite the lack of legal clarity. However, many of these people worked for free and relied on their employers for food and housing. And whilst slavery did not exist in Britain as it did in the colonies those who had purchased enslaved people and brought them back to Britain also brought with them a set of beliefs about what white masters could legally do with their human 'property'.
The Somerset judgment, even if read as limited to prohibiting the forcible removal of slaves from England, established a radical precedent. It went against recent common law authority in the 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. The latter had stated that slaves were items of property (Hardwicke described them as 'like stock on a farm'), who were not emancipated either by becoming 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 rulings before 1772, notably Shanley v Harvey (1763) and R v Stapylton (1771, also before Lord Mansfield). While Mansfield's judgment avoided making a definitive judgment about the legality of slavery in England, it nonetheless challenged the assumptions that enslaved people were no more than property, and that "Britishness" and whiteness were inseparable categories.
The precedent established by Somerset'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 resulting from the slavery law of Antigua. Lord Stowell criticised Lord Mansfield's judgment in the Somerset 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 Somerset's case appears to be supported by the judgment of Mr. Justice Best in Forbes v Cochrane in 1824. He said, "There is no statute recognising slavery which operates in that part of the British empire in which we are now called upon to administer justice." He described the Somerset 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. But not all reports of the case agree.
While the decision had a relatively muted impact in Britain's overseas colonies, in Britain itself the ruling had a far greater impact, providing a boon to the nascent abolitionist movement. The British press reported on the decision of the case, leading to many in Britain incorrectly assuming that slavery had been abolished in the country. This had a significant impact on the fledgling Black British community, the majority of whom were unpaid domestic servants which had been brought, enslaved, from the colonies to Britain. In response to the decision, the masters of these slaves emancipated them, though many still served as unpaid servants after the ruling.
Members of the pro-slavery lobby expressed fears that the Mansfield ruling of 1772 would lead to blacks flocking to England in huge numbers, which would result in white English servants missing out on employment and starving as a result.
However, the ruling did not abolish Britain's involvement in slave trading nor the institution of slavery in British Empire. Despite the case bringing the issue to public attention, slaves brought from the colonies continued to be recaptured by their masters if they ran away; in 1773, a London newspaper reported that a slave, who had ran away from his master, committed suicide after being recaptured. In 1779, a Liverpool newspaper advertised the sale of a black boy, and a clipping of the advertisement was acquired by Sharp himself to further the abolitionist cause. In 1788, British abolitionists, including Thomas Clarkson and James Ramsay, bought and freed a slave in England to prove that there were still slaves in the country. In 1792, a Bristol newspaper reported on the sale of a female African slave which took place in the city port.
In 1807, Parliament passed the 1807 Slave Trade Act which abolished the slave trade, not only outlawing the practice by British subjects but also seeking to suppress the trade by foreigners, through the naval power of the Royal Navy. Although the slave trade was abolished, slavery continued in the overseas colonies of the British Empire until it was abolished by the 1833 Slavery Abolition Act. British abolitionists argued that the law of England should apply on British merchant ships even if not in Britain's colonies. The slave traders who funded Stewart's defence were not anxious about James Somerset or the legal status of slavery in England and Wales but about how abolition might affect their overseas interests. In the end, merchants could continue trading in slaves for 35 years after Lord Mansfield's decision.[page needed]
Lord Mansfield freed Somerset by his ruling and did so in the face of the 1729 opinion of the Attorney-General and Solicitor-General, men whom Mansfield in the Somerset case described as "two of the greatest men of their own or any times". The prominence of the case emphasized the issues to the public. It was widely, and incorrectly, interpreted as ending slavery in Britain. Mansfield himself consistently stressed that the case solely passed judgment on the right of a slave to be transported out of England and Wales against his will, and did not comment on the legality of slavery itself. When Mansfield died in 1782, his will and testament officially emancipated his mulatto grand-niece, Dido Elizabeth Belle, who had lived as a slave in his household (having been born into slavery in the West Indies).
Nonetheless, abolitionists considered this case to be Lord Mansfield's legacy and 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".[page needed]
Influence in Great Britain and colonies
The Somerset case became a significant part of the common law of slavery in the English-speaking world, and helped launch a new wave of abolitionism. Lord Mansfield's ruling contributed to the concept that slavery was contrary "both to natural law and the principles of the English Constitution", a position adopted by abolitionists.
The case of Knight v Wedderburn in Scotland began in 1774 and was concluded in 1778, with a ruling that slavery had no existence in Scottish common law. Some lawyers thought that similar determinations might 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". Activists speculated that the principles behind Lord Mansfield's decision, might demand a rigorous definition of "conveniently", if a case were taken to its ultimate conclusion. Such a judicial ruling never took place as the Thirteen Colonies gained independence by 1783 and established laws related to slavery, with the northern states abolishing it, several gradually.
The Royal Navy began unilaterally interdicting the Atlantic slave trade in 1807 with the establishment of the West Africa Squadron. At its height slavery interdiction would take up a 6th of the Royal Navy's fleet and would also interdict the African-Middle East slave trade.[page needed]
Slavery in the rest of the British Empire continued until it was ended by the Slavery Abolition Act 1833 with the exception of "the Territories in the Possession of the East India Company. Slavery was abolished in the possessions of the East India Company by the Indian Slavery Act, 1843.
Thirteen Colonies and United States
The Somerset case was reported in detail by the American colonial press. In Massachusetts, several slaves filed freedom suits in 1773–1774 based on Mansfield's ruling; these were supported by the colony's General Court (for freedom of the slaves), but vetoed by successive Royal governors. As a result, some individuals in pro-slavery and anti-slavery colonies, for opposite reasons, desired a distinct break from English law in order to achieve their goals with regard to slavery. This case increased support of the Southern colonies for independence, as they particularly wanted to protect slavery.[page needed]
Beginning during the Revolutionary War, Northern states began to abolish or rule against maintaining slavery. Vermont was the first in 1777, followed by Pennsylvania (1780), Massachusetts (1783) and Connecticut (1784). In Massachusetts, rulings related to the freedom suits of Brom and Bett v Ashley (1781) and Quock Walker (1783) in county and state courts, respectively, resulted in slavery being found irreconcilable with the new state constitution and ended it in the state. In this sense, the Walker case is seen as a United States counterpart to the Somerset Case. In the case of Quock Walker, Massachusetts' Chief Justice William Cushing gave instructions to the jury as follows, indicating the end of slavery in the state:
As to the doctrine of slavery and the right of Christians to hold Africans in perpetual servitude, and sell and treat them as we do our horses and cattle, that (it is true) has been heretofore countenanced by the Province Laws formerly, but nowhere is it expressly enacted or established. It has been a usage – a usage which took its origin from the practice of some of the European nations, and the regulations of British government respecting the then Colonies, for the benefit of trade and wealth. But whatever sentiments have formerly prevailed in this particular or slid in upon us by the example of others, a different idea has taken place with the people of America, more favorable to the natural rights of mankind, and to that natural, innate desire of Liberty, with which Heaven (without regard to color, complexion, or shape of noses-features) has inspired all the human race. And upon this ground our Constitution of Government, by which the people of this Commonwealth have solemnly bound themselves, sets out with declaring that all men are born free and equal – and that every subject is entitled to liberty, and to have it guarded by the laws, as well as life and property – and in short is totally repugnant to the idea of being born slaves. This being the case, I think the idea of slavery is inconsistent with our own conduct and Constitution; and there can be no such thing as perpetual servitude of a rational creature, unless his liberty is forfeited by some criminal conduct or given up by personal consent or contract ...
After the American Revolution, the Somerset decision "took on a life of its own and entered the mainstream of American constitutional discourse" and was important in anti-slavery constitutionalism.
In the Southern states, slavery was integral to the economy and expanded after the Revolution, due largely to the development of the cotton gin, making cultivation of short-staple cotton profitable as a commodity crop throughout the Deep South, in the early to mid-19th century. Slavery in the states was protected from federal interference by the new Constitution of the United States.
France and slavery
Somerset'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). He 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. It did not abolish slavery in France. The law was implemented with regulations requiring the registration of slaves. The law provided that masters could bring colonial slaves to live and train in a "useful trade" in France for up to three years, without losing the right to return such slaves to servitude in the colonies. Other cases followed.
- Abolitionism in the United Kingdom
- Zong Massacre
- Boone v Eyre (1779) 1 Henry Blackstone 273, a subsequent Lord Mansfield case relating to a condition precedent
- Dred Scott
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- Ottobah Cugoano
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- 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" Archived 2 January 2007 at the Wayback Machine, History Cooperative
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In 1824 in Forbes v Cochrane (1824) 3 Dow & Ry KB 679 at 742, 2 B & C 448 at 463, 107 ER 450 at 456, 2 State Trials NS 147, Holroyd J held that where a person gets out of the territory where it [slavery] prevails and out of the power of his master and gets under the protection of another power, without any wrongful act done by the party giving that protection, the right of the master, which is founded on the municipal law of the particular place only, does not continue.
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