Ex parte Somerset (1771-72)

Lord Mansfield’s famous decision in Rex v. Knowles, ex parte Somerset, also known in the legal literature as Somerset v. Stewart, confirmed in law a circum­stance that Sharp had already tested repeatedly, that is, that persons claimed by others as slaves and property were entitled to the protections of the writ of habeas corpus against unlawful detention and deportation from England.

If it is, the negro must be remanded; if it is not, he must be discharged. Accordingly, the return states, that the slave departed and refused to serve; whereupon he was kept, to be sold abroad. So high an act of domin­ion must be recognized by the law of the country where it is used. The power of a master over his slave has been extremely different, in different countries. The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral [natural] or political; but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory: it's so odious, that nothing can be suffered to support it, but positive law. What­ever inconveniences, therefore, 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.^[984]

James Oldham has drawn attention to two manuscript reports of Mansfield’s decision by Serjeant Hill and one of the other King’s Bench puisnejustices, William Ashhurst, now held at Lincoln’s Inn Library.^{[985] [986] Following a careful analysis of these manuscript sources and three other extant published reports, including Capel Lofft’s, Oldham confirms that all versions include, with slight variations on the opening wording of the decision, the phrase indicating the procedural framework of the decision, �?the only question before us, whether the cause on the return before us is sufficient?’.}

There are also important linkages to be found between the decision’s proce­dural framing and the arguments made by Somerset’s lawyers. In his publica­tion of the argument he had delivered before King’s Bench as one of Somerset’s lawyers, Francis Hargrave places special emphasis on the cause for detention stated in the return to the writ submitted by Captain James Knowles, who was holding Somerset on board his ship after he had been kidnapped:

Whatever Mr Steuarfs right may be, it springs out of the condition of slavery, in which the negro was before his arrival in England, and wholly depends on the continuance of that relation; the power of imprisoning at pleasure here, and of transporting into a foreign country for sale as a slave, certainly not being exercisable over an ordinary servant. Accord­ingly the return fairly admits slavery to be the sole foundation of Mr Steuarfs claim; and this brings the question, as to the present lawfulness of slavery in England, directly before the court.^{[987] [988] [989]}

Hargrave’s argument makes clear that Somerset’s counsel, presumably follow­ing Sharp’s lead, explicitly adopted the habeas corpus procedure as the basis of their legal strategy for freeing their client, thereby also attempting to make unavoidable a ruling on the much broader issue of the legality of slavery itself, and thus on the fate of other fugitive slaves in England.

Consistently with Sharp’s account of the invalidity of villeinage as a prece­dent or analogue for slavery in A Representation, Hargrave also devotes a sub­stantial part of his argument to proving that the status of villain in blood and tenure (a feudal serf) had become extinct in England, in part due to legal judg­ments. Hargrave also construes the statements in the early eighteenth-century King’s Bench case by ChiefJustice Holt that �?In a villain the owner has a property; the villain is an inheritance; but the law takes no notice of a negro’; and by Justice Powell that �?as soon as a negro comes into England, he becomes free’, to exclude property in negro slaves from England^³ Hargrave also notes Lord Chancellor Henley’s (Lord Northington’s) declaration in an 1762 case upholding the validi­ty of a woman’s deathbed bequest to a negro servant, a former child slave, that �?As soon as a man puts foot on English ground he is free; a negro may maintain an action against his masterfor ill usage; and may have a Habeas Corpus, if re­strained of his liberty^,.64 Since slavery does not exist in England, Hargrave em­phasises, the law cannot also allow for a �?partial reception of slavery’ by means of a temporary contract of servitude between master and slave while in Eng­land: �?Will the law of England disallow the introduction of slavery, and there­fore emancipate the negro from it; and yet give effect to a contract founded solely upon slavery, in slavery ending? Is it possible that the law of England can be so insulting to the negro, so inconsistent with itself?’.^{[990] [991] Although Hargrave does not adopt Sharp’s natural law language by referring to �?rights of humani­ty’, in the version of his statement published in Lofft’s report he echoes Sharp in citing Grotius and Pufendorf as condoning slavery for captives in war, but then invokes Montesquieu and adds Samuel Rutherford andJohn Locke as natural law theorists who disallowed such a cause for slavery.66 In his conclud­ing argument, Hargrave recurs to this natural law context as conjoined to Eng­lish law, underscoring that �?by rejecting the return’ to the writ, the court will not only condemn the illegality of the violence perpetrated against Somerset by Stewart according to the Habeas Corpus Act, but will also succeed in �?effec­tually obstructing the introduction of a new slavery of negroes into England", thereby rendering a judgment �?no less conducive to the public advantage, than it will be conformable to natural justice, and to principles and authorities of law’[992]}

One of Somerset’s other counsel, Alleyne, relied more overtly on natural law principles in his brief address before the court when disputing that enslave­ment could ever be the result of a contract, a reciprocal relation, rather than of a violent seizure. �?Now’, he asked:

what power can there be in any man to dispose of all the rights vested by nature and society in him and his descendants? He cannot consent to part with them, without ceasing to be a man; for they immediately flow from, and are essential to, his condition as such: they cannot be taken from him, for they are not his, as a citizen or a member of society merely; and are not to be resigned to a power inferior to that which gave them^[993]

Alleyne also warned that, should slavery be admitted to England �?[t]he horrid cruelties, scarce credible in recital, perpetrated in America’, such as the public scourging of bound slaves, could �?become familiar, become unheeded by the nation’ and thus corrupt English law and morals.

Mansfield’s subsequent ruling that slavery can only exist by �?positive law’ rejected both the adoption of municipal slave laws from the colonies into Eng­land and the idea that villeinage could serve as a precedent or analogous status to slavery in England. Hargrave’s argument (by way of Sharp) was incidentally more persuasive than the argument of counsel for Stewart, rehearsed by Dun­ning (who had been retained to represent Stewart and the planter interest), that villeinage could be revived since it had not been explicitly abolished by law.^[994] The Chief Justice also tacitly set aside the relevance of numerous stat­utes and treaties authorizing and overseeing the slave trade, confining his rul­ing exclusively to the common law and its statutory versions, in stating that �?the only question before us is, whether the cause on the return is sufficient?’. In introducing language referring to �?so high an act of dominion’ and �?the mas­ter’s power’ over the slave, Mansfield’s decision also highlighted, as Sharp and Hargrave had done, the illegality of kidnapping Somerset and sending him out of the country under the Habeas Corpus Act (1679), an act of violence that could also be understood as both typical of slaveowners’ excessive dominion over the bodies of slaves in the colonies and as a personal assault, as had been vividly described by Thomas Lewis. Finally, Mansfield’s declaration that �?[t]he state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral [natural] or political’, and �?so odious, that nothing can be suffered to support it, but positive law’, also shows a similar fusion of natural law and common law arguments to Sharp’s accounts of slavery’s violations of Africans’ natural rights that Somerset’s lawyers also invoked.

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