4.2.4 After Somerset: The End of de Facto and de Jure Slavery in England

Given the lack of clear outcome in Somerset’s case, it is useful to look at the cases that happened between 1772 and 1834, the year in which slavery, with some minor and temporary exceptions, was abolished in the British Empire.

4.2.4.1 The End of de Facto Slavery in England

Whereas slaves were still to be found in England in the immediate years after Somerset, one should be mindful that discussions on cases post-1790 are often more of a theoretical nature, as by all purposes, there is proof that de facto slavery had died out in Britain by the early 1790s. In that sense, if there ever were a law of slavery in England, it had grown close to villeinage in one aspect, namely that it had become an institution without any subjects to regulate.

To substantiate this belief, several scholars have pointed to the differences between this period and the rest of the eighteenth century. For example, there were only few instances of offer of sale of slaves in newspapers after Somerset.¹¹⁰ The last reported instance of deportation is dated 1792. Even those few cases were often dubious examples, and the historical records are mostly silent afterwards.¹¹¹

How did this change come about? For once, the number of black persons coming to England sharply declined in the post-Somerset era. Although several contemporary English newspapers mostly correctly reported Mansfield’s decision, many slave owners and slaves interpreted the case as meaning that slaves became free upon coming to England. Masters would thus have an interest in taking slaves out of the country, and in limiting the entry of new ones. That is not to say that masters did not use other tricks to enjoy the continued service of their slaves, as can be seen through the example of indentured servitude.¹¹²

Professor Douglas Lorimer focuses on the black servants’ own agency to explain for the change by the 1790s.

The decline also has much to do with the changed atmosphere in England. Abolitionism had become a popular movement by the 1780s, and mobilisation and enforcement of the rights of black Africans had become a popular cause.¹¹⁴ If the courts still had reason to pronounce judgment on a case involving English law and slaves after the 1790s, it was mostly due to a particular set of coincidental circumstances.

4.2.4.2 Continuity in the English “Law of Slavery”

But what was the de jure situation of slavery in England? Courts started wrestling with the ambiguities of Somerset from the outset of the judgment. In a local court case (Cay v. Crichton) in 1773, which again involved the inventory of a deceased person who had owned a black slave, the judge reached the conclusion that Somerset had indeed abolished slavery in England, and that this grant of freedom had retroactive effect for slaves in England.¹¹⁵

This case was quite predictive for the decisions of the lower courts. Our focus has been on the common law courts of King’s Bench and Common Pleas. However, it must not be forgotten that, even at the end of the eighteenth century, the majority of criminal cases and a great deal of the administrative business was left not to the central courts, but to the local justices of the peace in England, meeting in Quarter sessions.¹¹⁶ Often, they represented the county elite, and were people chosen more for their status in society than for their knowledge of the law. In such a setting, and mindful of the fact that abolitionist thought became more and more popular, it is scarcely surprising to see how local magistrates would accord a meaning to Somerset that diverged from what Mansfield actually meant.¹¹⁷

Clearly, this was not what Lord Mansfield had in mind, and on the basis of subsequent judgments, there is ample evidence to show that Mansfield really only had a limited judgment in mind during Somerset v.

Sales of slaves were not problematic for Mansfield either. In 1773, one Thomas Jones, a slave merchant, sought a writ of habeas corpus for the Robin John brothers. They were two African brothers who had tried to flee from their enslaver in America and hoped to return to Africa via a ship that was to pass Bristol first. When the captain of the ship discovered they were slaves, he kept them imprisoned in irons onboard. Thomas Jones knew the two brothers, as they were part of the elite of their African tribe and had been forcibly sold into slavery after a dispute with another tribe.¹²⁰ This case was even more threatening than Somerset v. Stewart. In Somerset’s case, no one doubted that Somerset had been a slave in the Americas. Here, the Africans asserted that the manner in which they were made slaves was illegal. They believed their enslavement was open to challenge under the African laws and could not be condoned by an English court. They contended that it was Englishmen in English ships and in contravention of English law who had brought them from Africa and carried them into slavery in America. Mansfield himself clearly saw that this risked posing questions about the legitimacy of enslavement by war, and again studiously avoided to reach a decision.¹²¹ This time, he had more success, as all parties recognised it was in their interest if English courts avoided pronouncing on the issue. The captain who had removed the Africans from their hometown agreed to pay money to their alleged owners, and the Robin John brothers were returned home. The compromise between the parties was formally accepted by the King’s Bench and clearly mentioned that the money paid was “for the purpose money or value of the said two Africans”.

Likewise, in the 1782 case of Cook v. Kelly, the plaintiff sued Kelly because he had delivered Kelly a slave to sell in England, but Kelly had not paid for this. The plaintiff won the case, and Mansfield did not believe the sale of slaves to be problematic, it was probably not even argued.¹²³

Another opportunity to reiterate his limited views arose in the 1785 case of The King v. The Inhabitants of Thomas Ditton. This case involved a black slave brought to England by her colonial master. In England, she continued to work for him, and when he died, the black person lived with her former master’s widow, before eventually leaving her. The slave then decided to apply for poor relief but needed a parish of settlement to be covered. For this, the black person would need to show that she was hired by her master.¹²⁴ Especially revealing are Mansfield’s remarks during the plea of the black persons’ lawyers. When one of them remarked that the court had never decided before that negros brought to England were under an obligation to serve there, Mansfield quickly intervened to say that “The determinations go no further than that the master cannot by force compel him to go out of the kingdom”, which is a clear reference to Somerset v. Stewart. A little further, Mansfield remarked that “The case of Somerset is the only one on this subject. Where slaves have been brought here, and have commenced actions for their wages, I have always nonsuited the plaintiff”. The lawyers pleaded that although, strictly speaking, there was no contract for wages, the Poor Relief Act could not be construed to exclude this situation. Mansfield again simply evaded the issue. Without asking whether the person could be hired, he simply used a strict interpretation of the text of the Poor Relief Act 1662 and held that she was not hired.¹²⁵ This proved, once more, that Mansfield did not believe that slave status fully disappeared upon a slave’s arrival in England, although Cotter—considering his stance that Somerset’s case had ended de iure slavery— tries to construe the case as only meaning that the legal relationship between a master and a former slave would have to be decided on a case-by-case basis.¹²⁶

A non-legal argument against a broad view of Somerset v.

Furthermore, some masters found a means to evade what was really decided in Somerset’s case, namely that a master could not compel his slave to return to the colonies. The trick was to let the slave sign an indenture, in which s/he promised to work for his master under specified conditions whilst in England. That way, the slave was technically free in England but could be shipped back to the Indies without an application of habeas corpus being open to him, as the indentured servant had technically agreed to follow his master wherever he went.¹²⁸ As the 1799 case of Alfred v. Marquis of Fitzjames shows, where an indentured servant who had formerly been a slave, sued for his wages, “near slavery” remained the legal norm. The court held that, barring an original contract of service for wages with an explicit wages clause, Alfred had no title to recover wages.¹²⁹

4.2.4.3 Somerset Expanded: The Full (Though Non-universal) Freedom Principle of England

Up to 1800, whereas lower courts seem to have been more inclined towards enforcing the freedom principle of England, the higher common law courts of Mansfield and his immediate successors were more reluctant and kept the idea of near slavery alive.

In Williams v. Brown (Court of Common Pleas, 1802), Williams, a runaway slave who had come to England, contracted to become a seaman at Brown’s ship in England. When the ship arrived in Grenada, then a British colony, Williams was claimed as a runaway slave by his former master and delivered to him. He was then manumitted by his former master in return for some money, paid by Brown. In exchange, Williams had to sign an indenture with Brown, promising to serve him for three years at a lower wage than was agreed before. Back in England, Williams considered the agreement to be null and void and claimed wages from Brown. In this case, the court did not allow him to claim these wages. Two things were of interest. First, the court held that the plaintiff had indeed become free when he came to England (“Being as free as any of us while in England”), but upon return to Grenada, the status of slavery had “reverted” to him. This is the first indication, albeit obiter dictum, that the air of England had full purifying effect for slaves, even though this air did not follow the slave when he went back to the colonies.¹³²

Twenty-two years later, the King’s Bench was asked to deliver judgment in the case of John Forbes v. Cochrane and Cockburn. The plaintiff, a British merchant in the Spanish provinces of East Florida, sued Cochrane and Cockburn, two knights. The merchant had a cotton plantation. One day, some of his slaves had managed to escape to the ship of the defendants. The knights harboured the slaves, and after Forbes failed in persuading his slaves to return to him, they were brought to Bermuda to live as free persons. Forbes alleged that the knights had enticed the slaves away, and had wrongfully harboured, detained and kept them even after he had noticed the knights that the slaves were his property. The Court of King’s Bench decided that the ship was to be seen as some kind of “floating island”, in which the laws of England applied. Forbes’ action was disallowed, and two of the three judges came to this decision by holding that English soil had conferred full freedom to the slaves. For the first time, one of the high courts of England made its decision based on the fact that slavery was completely illegal in England. As this was the ratio decidendi of two judges, the freedom principle finally was clearly recognized in English common law.¹³³

The final important case on slavery in England, The Slave Grace (High Court of Admiralty, 1827) confirmed the English freedom principle. The case itself is quite comparable to Williams v. Brown. It concerned a slave who had stayed in England, subsequently returned to the colonies, and whose status was now in question. Lord Stowell held that Somerset’s case had decided that “the air of our island is too pure for slavery to breathe in”, and that slavery had become extinct in England as it was unsuitable to the “genius of the country”. However, it clearly was not too genius yet for the English colonies, as Stowell believed that another maxim, “Once free for an hour, free for ever”, only applied to villeins, and that Grace had reverted into a state of slavery by returning to Antigua.¹³⁴ The impact of the case was limited, as slavery was abolished by Parliament all over the British Empire six years later.¹³⁵

Thus, in the early 1800s, even the high British courts believed that slavery was abolished by Somerset v. Stewart, and they confirmed this in their own decisions. As for the reason for this change of heart, abolitionist thought probably had much to do with it. It is well known that the abolitionists were very crafty when it came to spreading ideas not on what a decision necessarily really held, but what they could make the decision to mean.¹³⁶ As Lord Mansfield slowly became a shadow of the past, so did the idea that black slavery, for a very long time at least, had led a life at the fringes of the English law, neither fully accepted nor rejected. The belief that English law had always protected human liberty became a living illusion.