4.2.3 Somerset’s Case: High Expectations, Limited Judgment
We now come to an assessment of what is by far the most famous case of an enslaved person in Europe, Somerset v. Stewart. Although I will defend the proposition that the result of the case was far from decisive, both plantation owners and the early abolitionist movement saw it as a test-case for the legality of slavery in England.
Books have been written on this case, and it still resonates in popular English thinking.71 A wide discussion of abolitionism would lead us too far and is not the purpose of this work, so suffice it to mention Sir Granville Sharp’s pivotal role. An early abolitionist, it was Sharp who tried to persuade his fellow Englishmen to make an end to the Atlantic slave trade, and who litigated several cases involving English slaves in the royal courts.72 The man he would have to convince, was the Scottish Lord Mansfield. Mansfield was one of the most important justices of the eighteenth century as Chief Justice of the Court of King’s Bench from 1756 to 1788. Moreover, he is lauded as one of the most distinguished judges of the English common law system as a whole.73 We will briefly look at the precedents of Somerset, Somerset itself and the meaning of Mansfield’s holding in the case.744.2.3.1 Somerset’s Antecedents: Avoiding the Issue (Again)
Granville Sharp’s involvement with enslaved African persons in England started with the case of the slave Jonathan Strong.75 Strong had been repeatedly struck by his master David Lisle on the head with a revolver, after which his master had cast him into the street to die. Strong recovered, but Lisle discovered he was still alive, kidnapped him and sold him to a Jamaican planter. Granville Sharp heard of this, and through an intervention of the Lord Mayor of London, Strong was freed. The planter, James Kerr, filed a charge of trespass de bonis asportatis against Sharp, but failed because of procedural mistakes with his writs.76
Incensed by this early success, Sharp soon had a new slavery case to deal with.
John Hylas, a freedman, saw how his wife Mary, a slave, was kidnapped in England and shipped back to the West Indies by her master. The case was brought before the Court of Common Pleas, but dispirited by the Yorke-Talbot opinion, which held that masters could forcibly return their slaves, Hylas’ lawyers only asked for monetary damages. Though one of Newton’s lawyers told Lord Wilmot, the Chief Justice of the Court of Common Pleas, that the case involved the difficult question of the legality of slavery in England, Wilmot neglected the issue and kept to a narrow ruling awarding damages and ordering the return of Mary.77In 1771, Mansfield himself could no longer avoid confronting slavery in the case of Thomas Lewis. Lewis was a slave who had tried to escape his London master, Mr. Stapylton, several times. Stapylton, seemingly irritated by this behaviour, lured Lewis into a trap at a wharf. There, hired captors were waiting to kidnap Lewis and put him on a ship bound for Jamaica. By a stroke of luck, a passerby heard what was happening and warned Granville Sharp. Sharp managed to have the slave freed from the ship, but decided to go further and started criminal proceedings against Stapylton. The case was initially brought to a local court (the Middlesex Quarter Sessions), but after the grand jury had indicted Stapylton his lawyer decided to lift the case to the level of the Court of King’s Bench.78 Mansfield was disinclined to decide the issue. He tasked the jury with either finding the defendant Stapylton guilty or returning a special verdict if the jury thought that Stapylton had property ownership in Lewis. In the event of the latter, Mansfield might have had to decide on the legality of slavery in England; however, his instructions to the jury were clearly drafted in a way to encourage it to choose for a verdict of guilty, which the jury did.79 That way, the larger question was avoided again.80
During and after the case was decided, it became clear that Mansfield was doubtful on the issue, and rather not be faced with it at all.
First, when one of the lawyers showed Mansfield the Yorke-Talbot opinion after the jury had made its decision, Mansfield stated that “perhaps it [the right of property in Negroes] is much better it never should be finally Discussed or Settled”, and that “I hope it never will be finally discussed [,] For I would have all Masters think they were Free and all Negroes think they were not because they would both behave better”.81 Second, when Lewis’ lawyers moved to have Stapylton sentenced a little while after the case, Mansfield refused to do so. It looked like Mansfield had had second thoughts and was doubting whether the fact that he allowed Lewis to witness to attest his own freedom was actually possible. Though Lewis’ lawyers pressed more than once, they let the issue pass when it became clear Mansfield would not be moved.82This solution would no longer be available to Mansfield when Somerset’s case was brought before him.
4.2.3.2 Somerset v. Stewart: Testing the Law
Facts and Arguments of Counsel
The facts of Somerset’s case are straightforward. James Somerset was the slave of Mr. Charles Stewart, a customs officer in the Massachusetts Bay Colony, where slavery was legal. Stewart came over from the Americas and brought Somerset with him. Whilst in England, Somerset tried to flee his master but was eventually caught. Stewart then consigned his slave to a certain Captain Knowles, who was to sell Somerset in Jamaica. Granville Sharp managed to intervene and secured a writ of habeas corpus on Somerset’s behalf.83
As the writ was returned, the case had to be discussed at the Court of King’s Bench. As with previous cases, Mansfield tried to get the case settled without having to pronounce judgment. But as both the planters and Sharp’s team wished to receive legal clarity, all these efforts failed, prompting Mansfield to say “fiat justitia, ruat caelum”.84
For his legal defence, Somerset could count on the experienced serjeants William Davy and John Glynn, next to junior counsel Francis Hargrave and Alleyne.
Stewart’s team consisted of the well-known former solicitor-general John Dunning, supplemented by James Wallace.85It was Francis Hargrave who gave the gist of Somerset’s argument. Hargrave started by articulating the facts, tried to define slavery, and traced the institution’s history, its decline in Europe and its revival in the Americas.86 Next, Hargrave went far and wide to discuss how English law only knew of one kind of slavery, namely villeinage, and how English law could not admit the return of a new kind of slavery. Given that, according to Hargrave, it was not legally permissible to enslave captives in war anymore in England shortly after the Norman takeover (which was a broadly correct assessment historically speaking), there could only be villeins remaining in case of servile birth (“time out of memory”) and by confession. Clearly, Somerset fit neither of these two cases.
Next, Hargrave contended that the favor libertatis of the English common law had progressively depleted the ranks of the class of villeins. English villeinage had thus become an empty shell, but it was also the only means of allowing “slavery” in English law. Slavery as professed in the American colonies, then, could only be legal in England if Parliament made it legal.87 He also believed that the English law of contract for services might at most allow a contract to serve for life (in return for wages), but not voluntary enslavement. He was even doubtful about the validity of such life contracts.88
Hargrave continued his argument by construing the existing slave cases in England to the benefit of Somerset, although a disadvantageous case such as Pearne v. Lisle was craftily omitted from his considerations.89 He then finished his argument by responding to several objections that his opponents might give. For example, he acknowledged that several English statutes, implicitly at least, seemed to allow slavery in the Americas.
However, he contended that they were only applicable there.90 Likewise, to counter the objection that the lex loci of the slave ought to be respected, he argued that this would create great inconvenience, and that it might eventually lead to a complete revival of domestic slavery in England. Interestingly, to give some added strength to the argument, he referred to other European states, mentioning examples of cases and scholarly writing in Scotland, the United Provinces and France that ought to show that these countries reacted to this issue by rejecting slavery.91Finally, perhaps anticipating a recourse to Blackstone’s ideas, Hargrave did not believe that a theory to change the slave’s status to servant whilst in England held sway. At what time did such a contract between the master and his servant start? What were the terms of this contract? Simply said, such a contention posed more questions than it could solve.92 In short, Hargrave was convinced that the laws of England ought to set Somerset free on his arrival in the country, and that this had to be an entire and unencumbered form of freedom.93
It was up to Wallace and Dunning to answer these claims.94 Wallace’s argument was the more extreme. Slavery was still found in “three quarters of the globe”, and even in Europe it had not completely disappeared, as he mentioned Poland and Russia. When West Indian regulations allowed for slavery, it was not up to the King’s Bench, or any other court, to see if these regulations were the best possible. As long as the regulations had force of law, they needed to be adhered to, even in English courts.
Second, he tried to turn Hargrave’s argument. There might well be no statutory law allowing slavery in England, he admitted, but neither was there a law against it. What is more, villeinage had “all but the name [of slavery]”. And as far as the precedents were concerned, they could well be used against Hargrave as well, as Wallace laid much stress on his biggest asset, the Yorke-Talbot opinion.
He finished by warning the court with a public policy argument. If the King’s Bench was going to make a broad decision, mass financial losses for the colonial proprietors would be the result. Surely the King’s Bench did not want to be involved in such an enterprise?95Dunning’s argument was a bit more cunning and revealed the real desires of the slave owners. Dunning believed that Mansfield should use this case, not necessarily to “legalise” full-fledged chattel slavery in England, which was not the planters’ main concern anyway, but rather to enforce a service for life in Somerset. The continuance of the slave’s services was the most important issue for slave masters, and the fact that not all the incidents of villeinage or chattel slavery were transplanted to African slaves in England was of lesser concern. This, in turn, is very much in accordance with a wish to uphold the status quo of the “slavish servant” status alluded to by Van Cleve.96
Mansfield’s Judgment
This left the case in the hands of Lord Mansfield. He was not happy with this in the first place as he mentioned once more how he had urged the parties to come to a mutual agreement. As this did not work, there was no choice but judgment. Mansfield started by setting out the terms of his decision. We were not dealing with a contract for sale of slave (which, he considered “is good here”), but with the person of the slave himself as the object of enquiry. He acknowledged that many of the consequences of slavery clearly went against the laws of England. Equally, he had to confess that setting 14,000 or 15,000 men free (Mansfield’s assessment of the number of black slaves in England), was not a palatable choice either. He did not even believe that the issue could be conclusively settled and encouraged the merchants to ask to Parliament to make legislation to govern the status of black slaves in the metropolis.
The slave owners actually (finally) heeded his call and appealed to Parliament; however, Parliament rejected this call and the slave owners did not press the matter much further, as they were probably convinced that the case would go in their favour.97
Mansfield was finally ready to deliver his judgment on 22 June 1772. After repeating the facts, the content of the Yorke-Talbot opinion and the precedent of Pearne v. Lisle allowing trover for the sale of negroes, Mansfield made clear that his judgment was essentially about one thing only: “whether the cause on the return [of the writ of habeas corpus] is sufficient”. Here again, we see Mansfield’s reluctance to come to a sweeping judgment on the status of slavery itself. His conclusion remains all the more famous, and deserves to be quoted in full:
So high an act of dominion must be recognized by the law of the country where it is used…The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only positive law, […]. Whatever inconveniences may follow from a decision, I cannot say this case is allowed or approved by the law of England, and therefore the black must be discharged.98
As a result, Somerset was allowed to stay in England, and disappeared from the historical records soon after the case.
Evaluating Mansfield’s Decision: A Very Narrow Holding
Having discussed Somerset v. Stewart in full, the question remains what was decided in the case concerning the status of slavery in England, and what was not.
One thing that was decided, and which is not disputed by any scholar, is that a master could not take hold of his slave and compel him to leave for the colonies. If the master did so, a slave could secure a writ of habeas corpus.99 But was there more to Mansfield’s ruling?
First, did Mansfield emancipate all the slaves in England, and did he decide that slavery could not exist there? Frankly, I believe the answer is no. Although this is clearly what the popular understanding of the case became, the debate on the holding in the case was re-opened by the Manchester historian Edward Fiddes (1864–1942) in 1932. Since then, the consensus in the scholarly community seems to be in favour of a more limited holding.100
Amongst the recent scholars to examine Somerset v. Stewart, one notable exception is W.R. Cotter. He does hold that Mansfield ended de jure slavery in England, referring amongst others to how American courts immediately after the Revolution understood Somerset to stand for the proposition that slavery was unknown under the common law, prompting the need for positive law (colonial statutes) on the issue.101
I personally side with the majority in holding that Mansfield’s case actually did not decide the status of black slaves taken to England itself, besides the fact that such slaves could not be taken back to the colonies against their own will. Although his reference to “so high an act of dominion” could well be stretched (e.g. is the sale of a slave not “so high an act of dominion” as well?), Mansfield did mention, though not as part of the ratio decidendi, that “Contract for sale of a slave is good here”.102 Given Mansfield’s refusal to declare the slaves emancipated, the status of “near slavery” for English blacks seemed to be upheld.103 For plantation owners, the case could serve as a reminder that they should not try to “cross the line” of what one was allowed to do to another person in England. In that sense, Mansfield’s judgment seems to be more of a case of individual justice being done to a particular person, rather than a pronouncement on broad principles of English law.104
A novelty in Somerset v. Stewart was Mansfield’s idea that slavery had to be instituted by positive law in each and every country.105 The fact that Mansfield preferred to use positive law, instead of holding that slavery was against English common law, might find its explanation in the relationship between the colonies and the metropolis. Mansfield was well acquainted with issues of conflicts of law, and, for example, had in previous decisions referred to the conflicts of law theory of the Dutch law professor Ulrich Huber (1634–1694).106 If Mansfield had explicitly found that slavery went against the common law, this would have either meant that it was technically illegal in several of the British colonies (if Lord Hardwicke’s reasoning was followed), or, if one did not want this outcome, that the colonies had to be treated as conquests outside of the common law framework (if Holt’s reasoning was used).107 Other scholars however believe the reference to positive law to be rather insignificant, and more of a rhetorical choice.108
In conclusion, Mansfield’s decision in Somerset v. Stewart broadly left us where we were. His opinion created more uncertainty than certainty, but maybe this is what Mansfield wished in the first place.109