Written by A Classical Liberal

 

 

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One of the most significant milestones in the campaign to abolish slavery throughout the world occurred in England in 1772, with British judge Lord Mansfield. His opinion in the Somerset v Stewart Case, 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, was widely taken to have held that slavery was illegal in England. This judgement also laid down the principle that slavery contracted in other jurisdictions could not be enforced in England. 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. However, he did not comment on the position in the overseas territories of the British Empire. Lord Mansfield’s judgment was deliberately expressed in narrow terms, and scholars and later judges have disagreed over precisely what legal precedent the case set.

James Somerset, an enslaved African, was purchased by Charles Stewart, a customs officer, 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.

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, so the case was not heard until 7 February 1772. The case 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.

Granville Sharp, an abolitionist layman who continually sought test cases against the legal justifications for slavery, was Somerset’s main backer. When the case was heard, five advocates appeared for Somerset, speaking at three hearings between February and May.

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 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 and that it would be dangerous to free all the black people in England, who numbered approximately 15,000.

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:

“… 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. …. 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 verdict on 22 June 1772.

…. 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.

Somerset was freed, and his supporters, who included both black and white Londoners, celebrated a great victory. While argument by counsel may have been based primarily on legal technicalities, Lord Mansfield appeared to believe that a great moral question had been posed. He deliberately avoided answering that question in full because of its profound political and economic consequences.

Most early abolitionists celebrated. However, some critics favoured a further reach for the abolitionist cause. Granville Sharp asked in contrast to Britain’s colonial possessions: ‘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?’ William Cowper, one of the most famous poets in England, wrote a poem which asked why ‘we have no slaves at home – then why abroad?’

Even if limited to prohibiting the forcible removal of slaves from England, the Somerset judgment 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 property items (Hardwicke described them as ‘like stock on a farm’), who were not emancipated either by becoming Christian or by entry into England. The legal action of trover could recover that possession of them 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. While Mansfield’s judgment avoided making a definitive judgement about the legality of slavery in England, it nonetheless challenged the assumptions that enslaved people were no more than property.

Whatever the technical legal rationale of the case, the public at large widely misunderstood the Somerset case to mean that, on English soil, at least, no man was a slave.

[This article will conclude tomorrow right here on Independence Daily.]

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