Footnotes

There are several books on the history of black people in England, most of them written in the seventies.

Shyllon, Walvin and Fryer believed that Queen Elizabeth I tried to expel the Africans from England because they threatened the purity of English blood, would take away the employment opportunities of English servants and were consuming food which would otherwise go to English subjects Shyllon (1974), pp. 1–2, Walvin (1973), pp. 8–10, Fryer (1984), pp. 10–12. Recent historiography has tended to view these “Edicts of Expulsion” from another perspective, believing that the two Acts of the Privy Council (dated 11 July 1596 and 18 July 1596) were some sort of “reward” that allowed a loyal subject to sell a certain number of blackamoores abroad. The same author contends that the royal proclamation (undated, but probably made in 1601) which wanted to expel all blacks from the kingdom was never actually promulgated and remained in draft form Weissbourd (2015). The two acts and royal proclamation are reprinted in Weissbourd’s article. For another recent account which largely concurs with Weissbourd, see Kaufmann (2008).

Shyllon (1974), pp. 1–2.

Rabin (2011), p. 9.

Ibid., 3–5.

Chater (2007), pp.

Ibid., 27–30.

Wise (2006), p. 8. Given that London had a population of approximately 750.000 citizens at that time, that number does seem to be substantially too high. Likewise, Rabin’s assessment that “England in the eighteenth century and London in particular was racially diverse” seems to be a bit of an overestimation Rabin (2011), p. 7.

I should point here in particular to the impressive “Runaway Slaves in Britain: bondage, freedom and race in the eighteenth century” project. By mid-2019, the project had been able to trace 835 advertisements concerning runaways in British newspapers dating from 1700 to 1773.

Van Cleve (2006a), pp. 607–611.

There was also another proposal for an Act encouraging the conversion of African slaves, which was to be applicable to slaves in England as well. Likewise, we noted how Parliament considered the African slave trade to be legal, but did not make substantive slave regulation for the Americas, leaving a void that could be filled by the local American governments. Paley addresses the various parliamentary proposals to create a legislative framework for slavery, most of them addressing the colonial situation, but also these two mentioned and aborted proposals that seemed to be applicable to slaves in England as well Paley (2010).

Our focus will be on cases from central courts, as those cases can usually be found in the English Reports. There definitely were some local cases, but in general, less research has been devoted to them, and this remains a fruitful avenue for future research. See, for example George (1965), pp. 140–144.

Wiecek (1974), pp. 89–95. This is a very important issue. Thanks to the Judicial cases concerning American slavery and the negro collection, we now have a good overview of the reported cases on the issue. However, it seems that only some of them were well-known at the time, and were sometimes equally badly known by nineteenth century judges. For example, in 1876, an English commission was created to enquire what ships of the Royal Navy had to do when they were in the territorial waters of another country and faced with fugitive slaves who came aboard. As part of his advice on this matter, then Chief Justice Cockburn (1802–1880) included an overview of what he believed to have been the relevant cases related to slavery in England. For the period before Somerset, he only knew of Smith v. Brown and Cooper, the Yorke-Talbot opinion, Pearne v. Lisle and Shanley v. Harvey, but did not mention some of the other cases mentioned in this chapter. See Royal Commission on Fugitive Slaves: Report of the Commissioners, XXVIII-LVI.

Oldham (2012).

As noted before, trespass writs are a group of writs that were used to make a claim for civil wrongs. Originally, trespass writs could only be issued in respect of wrongs that were committed “with force and arms”, the so called trespass vi et armis. Starting from the 1350s, the necessity of vi et armis was abandoned and general writs of trespass were issued, with the plaintiff being required to set out his special cause (which was basically a question about the alleged wrongdoing of the plaintiff.

In cases related to the slave trade, we know that common law judges did not go behind the property interest at stake, as slaves were simply classified as “cargo” Bush (1998), pp. 388–389.

Butts v. Penny (1677), 2 Levinz 201 in Catterall and Matteson (1926), p. 9. Rabin used another report (1 Freem. 452), which asserted that the court was dealing with a trover claim for 10 negroes (the Levinz report mentions 100 negroes).

Nisi causa means that there was no final judgment, as the case was held over at the request of the attorney general. The record for the subsequent final judgment has not been found. That being said, the case would sometimes be cited in subsequent cases Wiecek (1974), pp. 89–90.

Gelly v. Cleve (1694), 1 Ld. Raym. 147 in Catterall and Matteson (1926), p. 10. In Somerset’s case, Hargrave opined that this slave was also in the Americas instead of England, but we cannot know this conclusively from the report. A third early case, Noel v. Robinson, also allowed an action of trover for a slave, but the reasoning of the judge cannot be inferred from the report. Noel v. Robinson, (1682), 1 Vernon 453 in Catterall and Matteson (1926), p. 10.

Sir Thomas Grantham’s Case (1682), 3 Mod. 120 in Catterall and Matteson (1926), p. 9.

Note that the reporter of Sir Thomas Grantham’s case found it relevant to mention that the “monster” was baptised Van Cleve (2006a), p.

Chamberline v. Harvey (1696/1697), 3 Ld. Raym. 129 in Catterall and Matteson (1926), pp. 10–11. A more thorough account, including the arguments of counsel, can be found in 87 E.R. 596 Rabin (2014), pp. 208–209. There is also a second (slightly different) report for this case where the case is referred to as Chamberlain v. Harvey, see Lyall (2017), p. 31.

Van Cleve (2006a), pp. 616–617.

Smith v. Brown and Cooper (1705), 2 Salkeld 666. Motion in arrest of judgment was a common law procedure whereby questions could be raised in banc after the trial. It allowed the defendant to ask the court that although the facts alleged by the plaintiff were found to be true by a jury, they disclosed no cause of action on which plaintiff could succeed Baker (2002), pp. 82–85.

Van Cleve (2006a), pp. 617–618.

Wiecek (1974), p. 92.

Smith v. Gould (1706), 2 Salkeld 666 and 2 Ld. Raym. 1274 in Catterall and Matteson (1926), pp. 11–12.

Van Cleve (2006a), pp. 623–624.

Ibid., pp. 619–620.

The attorney-general, solicitor-general and king’s serjeants together were the King’s Counsel in ordinary, tasked with advising the crown in litigation Baker (2002), pp. 164–165. Traditionally, historiography believed that it were the plantation owners who pressed Yorke and Talbot to deliver this opinion. For example, see Wiecek (1974), pp. 31–32, Van Cleve (2006a), pp. 619–620, Drescher (1987), pp. 31–32.

Somerset v. Stewart (1772), Lofft 1.

Opinion of Sir Philip York[e], then Attorney-General, and Mr. Talbot, Solicitor-General, 33 Dict. Of Dec. 14,547, 1720 in Catterall and Matteson (1926), p. 12.

Wise (2006), pp. 30, 46.

Glasson (2010).

Drescher (1987), p. 32.

The Statutes at Large, from Magna Charta to the End of the Eleventh Parliament of Great Britain, Anno 1761, Vol. 16, 5 Geo. II, C. 7; Priest (2006), pp. 421–427. Because of the acknowledgement of slaves as personal property in this specific situation, Van Cleve and Glasson have called this the “commercial law analogy” of the Yorke-Talbot opinion Van Cleve (2006a), p. 620, Glasson (2010), p. 284.

As Lord Chancellor, Hardwicke would hear cases in the Court of Chancery. Technically speaking (and unlike today), the common law as it was created by the courts of King’s Bench and Common Pleas was separate from the equity developed at the Court of Chancery. However, the parties in Somerset v. Stewart, and indeed Lord Mansfield himself, did not seem to make a big distinction between precedents from common law cases and equity cases, which is why the distinction should not be taken too strict here. Baker (2002), pp. 97–99.

Pearne v. Lisle (1749) Ambler 75 in Catterall and Matteson (1926), p. 12. This was an equitable writ, with the purpose of restraining a person from leaving the jurisdiction of the court or the state.

It was during this period that the idea that “Englishmen carry their English law with them” became popular. Hulsebosch (2006), pp. 654–655, Van Cleve (2006a), pp. 620–621.

Wiecek believes the case was not so important, given that it was only published long afterwards, whereas Van Cleve believes it was the most important case Lord Mansfield had to grapple with in Somerset v. Stewart. Wiecek (1974), pp. 94–95, Van Cleve (2006a), pp. 620–621.

Shanley v. Harvey (1762), 2 Eden in Catterall and Matteson (1926), p. 13. An account of personal estate was a means to discover what, if anything, one party was owing to another. Baker (2002), pp. 363–365.

Chief Justice Cockburn opined what the exact facts of the case were. The slave had been given by his master to his niece, who made the gift of money to the slave just before she died. Probably, the master then instituted a suit to have an account of this money, on the basis that the recipient, a slave, could not acquire anything for himself. Royal Commission on Fugitive Saves: Report of the Commissioners, XLVII.

Van Cleve (2006a), p. 621, Wiecek (1974), p. 95.

Sharp (2014), p. 4–5. I have made use of the 2014 edition of Granville Sharp’s A Representation of the Injustice and Dangerous Tendency of Tolerating Slavery (originally published in 1769).

Ibid.

For an example of some local London cases, see George (1965), pp. 140–144.

Rabin (2011), p. 8.

De Grey Opinion, in Lyall (2017), p. 335. Also see Wise (2006), p. 123.

Van Cleve (2006a), p. 612, Chamberlayne (1669), 514.

Wood (1704), 31.

Molloy (1682).

Blackstone (1765), 123.

Ibid., 411–413.

Letter from Blackstone to Sharp, 20 February 1769 in Lyall (2017), p. 359.

Blackstone (1766). In the fourth and subsequent editions that were made during Blackstone’s life, “possibly” replaced “probably”. For an overview of all the change, during the lifetime of Blackstone, of the Commentaries on the Laws of England, see Blackstone’s Commentaries in Lyall (2017), pp. 356–357.

Shyllon’s evidence is based on the postscript of the second edition of Blackstone’s work, which mentioned that the new edition was made so soon partially because some of Blackstone’s “learned friends” pointed out some of his errors; a confrontation between Granville Sharp and William Blackstone; accusations by Prince Hoare (Granville Sharp’s biographer) and other circumstantial evidence Shyllon (1974), pp. 55–76.

Oldham (2004), pp. 316–317.

Oldham (1988), p. 48.

Wiecek (1974), p. 89.

Paley (2002), p. 180.

Paley (2006), p. 662.

Glasson (2010), p. 282.

Lyall (2017), p. 29.

Peabody (1996), p. 5.

Fiddes (1934), p. 499.

Watson adopts a similar conflicts of law analysis, this time centred on Mansfield in Somerset v.Stewart itself, in Watson (2006).

Van Cleve (2006a), pp. 604,613–614. This is clearly reminiscent of our current manner of reasoning in private international law. In general, the courts of the forum recognise the validity of a status created under the law of the jurisdiction where the legal relation at issue arose (lex loci), unless the results would be considered inconvenient in the jurisdiction of the forum.

For example, see his views on the laws of the colony of Virginia, as referred to in Smith v. Brown and Cooper.

Van Cleve (2006a), p. 624.

Because gaining a full understanding of the complex relationship between English law and colonial clearly fell outside the scope of this work, I have not explored this point much further. Professor Van Cleve was so kind to point out that the analysis of the relationship between colonial law and English law is very complex and also dependent on specific types of claims and circumstances. Private correspondence with Professor George Van Cleve, 1/05/2017. Also, “ambiguity” and “consistency” do not have to be diametrically opposed to each other. The case law was consistent in the sense that it can be explained by looking at the views of a certain judge on the legal relationship between the colonies and the metropolis, and that there was neither full emancipation nor (except for Hardwicke) full recognition of slavery. However, between the incidents of slavery which one judge allowed and another did not, there was some uncertainty.

One recent book on Somerset’s case is Wise (2006). For the importance of Somerset’s case in current English thinking, see for example judge Tom Bingham’s popularized pocketbook The Rule of Law Bingham (2010), pp. 56–58.

For an introduction to Sharp’s life, see Wise (2006), pp. 31–45.

An introduction to Mansfield’s life can be found in Oldham (2004), pp. 3–11. In theory, the Court of King’s Bench and the Court of Common Pleas hierarchically stood next to one another, but Mansfield did all he could to make his court the “most attractive” for litigants. Ibid., 48.

Ever since Mansfield’s holding in Somerset v. Stewart in 1772, the case has been meticulously discussed by successive generations of scholars, creating a sheer endless amount of material. To assess the case, I have made use of the following works: Wise (2006), Van Cleve (2006a), Van Cleve (2006b), Shyllon (1974), Walvin (1973), Davis (1975), Hulsebosch (2006), Paley (2006), Oldham (2004), Wiecek (1974), Fiddes (1934), Drescher (1987), Rabin (2014), Nadelhaft (1966), Cotter (1994), Lorimer (1984), Jackman (2018), Watson (2006).

The source texts for all these cases can be found in Lyall (2017). Obviously, one needs to treat these manuscripts with due criticism. The case of Jonathan Strong, for example, was written down few years after the facts by Sharp himself. Likewise, for the case of Hylas v. Newton, we have to trust a short report made by Sharp himself, given that the original has not (yet?) been found. The manuscript for The King (Lewis) v. Stapylton is clearly the most credible, as it is a (very rare) verbatim account of the proceeding in the King’s Bench.

Wise (2006), pp. 21–30. For the text, see Jonathan Strong in Lyall (2017), pp. 91–98.

Wise (2006), pp. 45–58. For the manuscript, see Hylas v Newton in Lyall (2017), pp. 337–338.

Wise (2006), pp. 59–67.

Oldham (2004), pp. 310–312.

For the manuscript, see King (Lewis) v Stapylton—Proceedings in the Court of King’s Bench in Lyall (2017), pp. 99–129.

Ibid., 128–129.

Motions for Judgment—The King (Lewis) v. Stapylton in Lyall (2017), pp. 130–132. Also see Wise (2006), pp. 107–110.

The facts of the case can be found in Somerset v. Stewart (1772) Lofft 1, next to the abundant secondary literature. A writ of habeas corpus was one of the prerogative writs, and it became the principal safeguard of personal liberty in the English common law. The function of the writ is to question the lawfulness of an imprisonment, and the writ ensured that the English courts could protect a wide range of personal liberties Baker (2002), pp. 146–147. As we are dealing with a case of habeas corpus, the correct way to refer to the case is actually R. v. Knowles, ex parte Somerset. As the case is best known under the name Somerset v. Stewart, I have and will continue to use this way of referencing to it. Scholars have been grappling for decades with choosing the “most correct” report of the case, and “Exactly what Lord Mansfield said […] has been the subject of microscopic examination”, Oldham (1988), pp. 45, 54. In contrast to the aforementioned cases, Somerset v. Stewart was widely discussed in both the English and the American press. Four versions of the case have gained some popularity (though more exist), namely the Lofft version, an account in the Gentleman’s Magazine, an account in the Scots Magazine and a handwritten document in the Granville Sharp manuscripts. Given that Lofft was the only reporter of the Court of King’s Bench at that moment, and was also present at the case, I will treat his version as being “holy” for the purpose of coherence (it is also my impression that many recent scholars, such as for example Steven Wise, tend to follow either this report or the Scots Magazine report). For a primer to the discussion on the various versions of Somerset v. Stewart, see Wiecek (1974), pp. 141–146. One’s choice of the “most correct version” can clearly affect one’s views on the breath of the case. For example, Nadelhaft prefers the Gentleman’s Magazine version. Because that version nowhere mentions Mansfield referencing to “positive law” in his decision, Nadelhaft puts stress on some other nuances of the case than other writers preferring other versions. See Nadelhaft (1966), pp. 200–201.

Oldham (2004), p. 313.

For the manuscript of the case (including the various versions of the decision), see Lyall (2017), pp. 144–216. The setup of the case is excellently explained in Lyall as well (pp. 17–18). The hearings continued over five separate days, nl. (1) Arguments of Serjeants Davy and Glynn on 7 February 1772, (2) Arguments of Mansfield (counsel for Somerset) on 9 May 1772, (3) Arguments of Hargrave and Alleyne on 14 May 1772, (4) Arguments of Dunning and Davy om 21 May 1772 and (5) Judgment by Lord Mansfield on 22 June 1772. Only the final three parts are included in the Lofft report (the first part can be found in Lyall (p. 144–182), the second part is assembled on the basis of newspaper reports in Shyllon (1974), pp. 94–95). Many of the arguments are repeated by the lawyers, and my focus here is on the argument made by Hargrave. In the same year as the case, his memorial was printed as An Argument in the Case of James Sommersett, A Negro. Although the argument presented there does not fully match with what Hargrave must have exactly said in court, the general structure of the argument is closely similar to the Lofft report, and given that it is more structured than the notes Lofft took during trial, I have primarily made use of the pamphlet to reconstruct Hargrave’s argument.

Hargrave, An Argument in the Case of James Sommersett, A Negro, 1–25.

Ibid., 25–45.

Ibid., 47–50.

Ibid., 51–59.

Ibid., 67.

Ibid., 68–75.

Ibid., 75–77.

In the Lofft report, the arguments in favour of Somerset by Alleyne and serjeant Davy are also given. Their considerations broadly align with the ones mentioned by Hargrave.

Just like Hargrave, the plantation owners were also engaged in the “pamphlet war” surrounding the case. The best known pamphlet in favour of the slavers’ position is Samuel Estwick’s Considerations on the Negroe cause.

Wallace’s argument can be found at Lofft, 8–9.

Dunning’s argument can be found at Lofft, 12–14.

Lofft, 17–19. In the past, the West Indian planters had proved to be a powerful interest group, capable of influencing Parliament’s legislation Taylor (2002), pp. 216, 438. Van Cleve mentions two reasons why Parliament did not act. First, it seems that it was already internally divided on the issue of slavery at the time of Somerset, and declined to make legislation in favour of either abolitionists or the planters. Second, the planters were apparently convinced that they were going to win this case. The plantation owners had thought that Somerset’s case would be decided after the so called “twelve judges procedure” had been followed, an informal procedure in which the 12 common law judges (4 from King’s Bench, Common Pleas and the Exchequer) collectively deliberated on a difficult legal question. They were convinced the twelve judges would agree with their view, on the basis that colonial property, recognised by English statutes, would also be deemed property in the metropolis Van Cleve (2006a), p. 631, Baker (2002), pp. 522–523.

Lofft, 19.

This proves, once more, that whatever the status of a person is under foreign law, questions of personal status in the English courts must be determined by using English common law, not colonial law. Van Cleve, “Somerset’s Case and Its Antecedents in Imperial Perspective,” 634.

Lofft, 19.

Fiddes (1934). Amongst the secondary literature I have cited, i.a. Watson, Van Cleve, Walvin, Davis, Hulsebosch, Paley, Oldham, Wiecek, Drescher, Nadelhaft, Lorimer, Jackman and Rabin all argue in favour of a limited holding of the case. One author who goes for a “middle of the road” position is Steven Wise. His understanding seems to be that it was Mansfield’s intention to declare the slaves personally free with his Somerset judgment, but that he might have gotten second thoughts later on, after which he tried to limit the reach of his judgment ex post facto Wise (2006), pp. 205–215.

Cotter (1994).

This can be construed as referring to the sale of slaves outside of England, or out- and inside England.

Van Cleve (2006a), p. 637, Davis (1975), p. 498.

Oldham (2004), p. 306.

Through those words, we can also ascertain that Mansfield was not a proponent of Aristotle’s natural slavery thesis.

Watson (2006).

Van Cleve believes that this was a deliberate effort to demolish the legal justification for slavery on any other basis but positive law, but this is heavily doubted by Hulsebosch. Van Cleve (2006a), pp. 638–640, Hulsebosch (2006).

Hulsebosch (2006), p. 651.

Mansfield’s remarks in R. v. Stapylton point to the fact that he was in favour of upholding the status quo. See Van Cleve (2006a), pp. 637–638, Paley (2006), p. 664.

The Runaway slaves in Britain-database still contains several entries in the aftermath of Somerset’s case, but the last advertisements found were in 1780.

Drescher (1987), pp. 41–42. Cotter makes a very strong case when he discusses the evidence for the end of the de facto existence of slavery in England post-Somerset. His conclusion however, which claims that incidents of slavery had already been barred from England almost right after Somerset’s case, is too far reaching Cotter (1994). Paley refers to one example of 1812, but that case was more related to the limits of the Habeas Corpus Act 1679 rather than the freedom principle per se Paley (2002), p. 175.

Cairns shows how the popular meaning of Somerset’s case resonated amongst Scottish slaves, masters and the broader public in Scotland in Cairns (2012). Although not discussed exhaustively in this monograph, a few words on Scotland are in order. First, it has to be borne in mind that Scots law and the Scottish law courts were preserved after the Union with England in 1707. The legality of slavery was also a hotly debated issue in eighteenth century Scotland. There, the case for freedom was conclusively (and less ambiguously than in England) settled in 1778 in the case of Knight v. Wedderburn. In that year, the Scottish Court of Session, Scotland’s supreme civil court, affirmed a local 1774 decision which held that “the State of Slavery is not recognised by the Laws of this Kingdom and is inconsistent with the principles thereof and Found that the Regulations in Jamaica concerning Slaves do not extend to this Kingdom”. It is very noteworthy that in the lawyers’ memorials, we again find references to foreign law on the freedom principle (the memorials being filled with references to England, France, the Low Countries and Germany). The issue had also arisen earlier in Scotland, for example in the case of Sheddan v. Montgomery in 1756. However, because the slave died before the Court reached a conclusion, we only have the memorials of both parties in that case. The Sheddan case can also serve as an example of how the 1532 case that came before the Great Council of Malines was subsequently misconstrued by scholars. The lawyer of the slave Montgomery based the freedom tradition of the United Provinces upon “gives a memorable instance of a judgment to that purpose, where some Spanish slaves had made their escape, and claimed their liberty, and by a solemn decision were declared free”. Besides for the fact that the case involved a slave owned by a Portuguese person, not a Spaniard, this is also an overly extensive reading of what was decided by the Great Council of Malines. On the case, also see Cairns (2001), pp. 222–224.I thank Professor John Finlay of the University of Glasgow for having shared with me his photographs of the written memorials in Sheddan’s case.

Lorimer (1984).

Cotter (1994), p. 45.

Wiecek (1974), p. 108.

Paley (2002), p. 179.

Paley stresses that this new “mythology” of Somerset’s case was created over time. It is very difficult to generalise the views of lower judges, although it is apparent that, with the memory of the protagonists of Somerset v. Stewart gradually fading away, it became easier to misconstrue the case. Ibid., 179–181.

Or, alternatively, if we are to follow Wise, that Mansfield had “second thoughts”, Wise (2006), pp. 205–215.

Gregson v. Gilbert (1783) 99 E.R. 629 and Jones v. Schmoll (1785) 1 Term R. 130 n. in Catterall and Matteson (1926), pp. 19–20. The first case also dealt with a cause cĂ©lèbre, as the insurance claim was for slaves who had been thrown overboard the slave-ship Zong, which had a lack of drinking water on board. This became known as the “Zong Massacre” Oldham (2004), p. 318. For all primary sources related to the Zong case, see Lyall (2017), pp. 217–334.

The case is unreported but well documented, and is treated in full by Ruth Paley Paley (2002), pp. 166–175.

Ibid., pp. 168–172.

Ibid., pp. 172–175.

Cook v. Kelly is unreported, but discussed by James Oldham Oldham (2004), p. 319.

The King v. The Inhabitants of Thames Ditton (1785), 99 E.R. 891.The Poor Relief Act 1662 was one of the successors of the Vagrancy Act of 1547. For the purposes of deciding which parish was responsible for someone in need of poor relief, a “settlement certificate” was needed to clarify the parish to which a person belonged. In order to receive such a settlement, a person had to proof he or she was continually hired by a settled resident for more than a year and a day.

Paley (2002), p. 177.

Davis (1975), p. 496, Paley (2002), p. 177, Walvin (1973), p. 134, Cotter (1994), p. 39.

Cotter (1994), p. 51.

To prove that English courts allowed this practise, Walvin cited the case of Keane v. Boycott. This involved a case where a slave had signed an indenture prior to coming to England with his master. Upon arrival in England, a third party enticed the indentured servant to enlist in the armed forces. The third party was sentenced because he wilfully enticed an indentured servant away from his master. As Cotter notes, this cannot be equated with disallowing a writ of habeas corpus if the indentured servant would be forced back to the colonies., and it is therefore no good example Keane v. Boycott (1795), 2 H. Bl. 511 in Catterall and Matteson (1926), p. 21. Ruth Paley discusses another unreported case concerning the indentured servant John Hamlet, in which the court does condone the indentured servants’ forced return to the colonies, and this does seem to be a valid example of the practice Walvin (1973), p. 135, Paley (2002), p. 178, Cotter (1994), p. 42. This trick was apparently used in Scotland as well, see Cairns (2012), pp. 308–310.

Alfred v. Marquis of Fitzjames (1799) 170 E.R. 518.

Cotter has made a list of scholars, dividing them into three categories depending on whether they believed Somerset v. Stewart ended de jure slavery in England, whether de jure slavery in England only ended through general emancipation in 1834, or whether it happened in the 1790 s (he seems to confound the de facto and de jure end of slavery in this third category) Cotter (1994), pp. 32–33.

Originally, the High Court of Admiralty was, like the Conciliar Courts, another court that was influenced by civilian influence and stood outside of the common law system. This was due to the fact that courts of common law originally could not entertain causes of action that arose abroad, as it would be impossible to summon a jury from the place where the case was “laid” (One could however solve the trick by a pleading fiction, such as claiming the case was laid in “Ghent in the county of Kent”). As common law courts were ever superstitious to assert their dominance, they slowly encroached on the admiralty’s jurisdiction, in the process absorbing this specialised law into the common law. Whilst the Court was at its nadir in the seventeenth century, it would regain some of its jurisdiction in the nineteenth century. This resulted in some interesting slave cases, though most of them were related to admiralty’s jurisdiction as a prize court Baker (2002), pp. 122–124.

Williams v. Brown (1802), 3 Bos. And Pul. 69.

Forbes v. Cochrane and Cockburn (1824), 107 E.R. 450. Judge Bayley’s decision was not made on the basis of the status of the purported slaves. Justice Holroyd held that “They were not slaves by the law which prevailed on board the British ship of war”, and his decision was made on the basis that “The moment they got on board the English ship there was an end of any right which the plaintiff had by the English laws acquired over them as slaves”. Judge Best held that “It is an antichristian law, and one which violates the rights of nature, and therefore ought not to be recognized here. For these reasons I am of opinion that our judgment must be for defendant” and believed that “I say there is not any decided case in which the power to maintain an action arising out of the relation of master and slave had been recognized in this country”. When it came to the continuing right of the service of the slave that Blackstone had alluded to, Judge Best believed that this was a “service to our country, service to our relations for the protection they have offered us, and service by compact”, which obviously cannot be equated with a mandatory right to service for life.

The Slave, Grace (1827), 166 E.R. 179.

Wiecek (1974), pp. 111–112.

Paley (2002), pp. 181–184.