BLACK SOCIAL HISTORY
Somerset v Stewart
| Somerset v Stewart | |
|---|---|
 | |
| Court | King's Bench |
| Decided | 14 May 1772 |
| 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 (aka Somersett's case, or in State Trials v.XX Sommersett v Steuart) is a famous judgment of the English Court of King's Bench in 1772, which held that chattel slavery was unsupported by the common law inEngland and Wales, although the position elsewhere in the British Empire was left ambiguous. 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 authorised by statute in England and Wales, and Lord Mansfield's decision found it also unsupported in common law. Lord Mansfield narrowly limited his judgment to the issue of whether a person, regardless of being a slave, could be removed from England against his will, and said he could not. Even this reading meant that certain property rights in chattel slaves were unsupported by common law. It is one of the most significant milestones in the abolitionist campaign.
Some historians believe the case contributed to increasing colonial support for separatism in the Thirteen Colonies, by parties on both sides of the slavery question who wanted to establish independent government and law.[2] The southern colonies wanted to protect slavery and expanded its territory dramatically in the decades after independence was won.[3][4]
Contents
Facts
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.[5]
Stewart brought Somerset with him when he returned to England in 1769 but in 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 Benchfor 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.
The Chief Justice of the King's Bench, William Murray, 1st Earl of Mansfield, ordered a hearing for 21 January; in the meantime he set the prisoner free on recognisance. A request to prepare arguments was granted Somerset's counsel 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 monies to support the lawyers for both sides of the argument.
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 and the noted Irish lawyer and orator John Philpot Curran[citation 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 law made by Parliament recognised the existence of slavery and slavery was therefore unlawful.[6] 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, who numbered at the time approximately 15,000.
Judgment
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 judgement would be given. As he put it, let justice be done whatever the consequence.
Having heard both sides of the argument, Lord Mansfield retired to make his decision, and reserved judgement for over a month. He gave his judgement on 22 June 1772. (this version is transcribed from a letter to the General Evening Post, reporting on the trial. It has modern paragraphing):[7]
Significance
After the decision
Somerset was free and his supporters, who included both black and white Londoners, 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 "this air is too pure for a slave to breathe in", but no such words appear in the judgement. 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 Holt's judgement in Smith v Brown,[8] 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."
Precedent
Legal academics have argued for years over precisely what legal precedent was set in the case.[9] Differences in reports of the judgement 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 judgement 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.[10]
In 1785, Lord Mansfield expressed the view in R v Inhabitants of Thames Ditton[11] 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 by the name of Charlotte Howe had brought to England as a slave by one Captain Howe. After Captain Howe died Charlotte sought poor relief from the Parish of Thames Ditton. Mansfield stated that the Somersett case had only determined that a master could not force a slave to leave England, much as in earlier times a master could not forcibly remove his villein. He ruled that Charlotte was not entitled to relief under Poor Laws because relief was dependent on having having been "hired", and this did not relate to slaves. In the official report of the case, Lord Mansfield is recorded as actually interrupting counsel to specifically state: "The determinations go no further than that the master cannot be force compel him to go out of the kingdom."
The official report of Thames Ditton case supports the account of his judgement given in The Times letter, and it is the strongest argument for a limited scope to the decision. Mansfield's judgement in the Somerset case does not expressly say that slaves became free when they entered England—it is silent as to what their status in England was. In theThames Ditton case, Lord Mansfield appeared to compare a slave's 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 had not done so in the Somerset case despite the invitation of Stewart's counsel.
The Somerset judgement, even if limited to prohibiting the forcible removal of slaves from England, established a radical precedent. It went against recent common law authority in 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.[12] 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 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).
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.[13] Lord Stowell criticised Lord Mansfield's judgement in the Somerset case, describing it as having reversed the judgement 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:
This wider reading of Somerset's case appears to be supported by the judgment of Mr. Justice Best in Forbes v Cochrane[14] 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."[15] 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.[16] But not all reports of the case agree.[17]
Whatever the technical legal ratio decidendi of the case, the public at large widely understood the Somerset case to mean that, on English soil at least, no man was a slave.[citation needed]
Domestic effect
While Somerset's case provided a boon to the abolitionist movement and disapproved 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. Despite the ruling, escaped slaves continued to be recaptured in England. In addition, contemporary newspaper advertisements show that slaves continued to be bought and sold in the British Isles.[18] 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 Somerset 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.
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 judgement in Somerset'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 settle by releasing Somerset and so avoid a decision, as he had done in other cases.[19]
In 1780, Mansfield's house had been firebombed by a Protestant mob because of his judgements in support of rights for Catholics. In the Thames Ditton case[20] Lord Mansfield appeared to seek to limit the influence of the Somerset case.
Lord Mansfield freed James Somerset 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 Somerset case described as "two of the greatest men of their own or any times". Lord Mansfield described the system of slavery as "odious", at a time when the slave trade was economically lucrative for British merchants and traders and the abolition movement was in its infancy. The prominence the case emphasized the issues to the public. It was widely interpreted as ending slavery in Great Britain.
The case is considered 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".[citation 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 abolitionism.[21] 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.[22]
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, which was part of Great Britain at the time. 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.
Slavery in the rest of the British Empire continued until it was ended by Act of Parliament in 1833. India was excluded from these provisions, as slavery was considered part of the indigenous culture and was not disrupted.
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 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.[2] Historians Alfred W. and Ruth G. Blumrosen suggest that this case increased support of the Southern colonies for independence, as they particularly wanted to protect slavery.[3][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).[23][24][24] 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.[25][26] In this sense, the Walker case is seen as a United States counterpart to the Somerset Case.[2] 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:
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.[22]
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 newConstitution 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.[28]
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.[28]
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