Somerset's case and its antecedents in imperial perspective

Law and History Review

Volumn 24, Issue 3, 2006, Pages 601-644

  Van Cleve, George ^a  

^a UNIVERSITY OF VIRGINIA   (United States)

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EID: 64949116744     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.1017/s073824800000081x     Document Type: Review

References (273)

1. For biographical information on Somerset and Steuart, see Mark S. Weiner, "New Biographical Evidence on Somerset's Case," Slavery and Abolition 23 (2002): 121-36
2. Paul Langford, A Polite and Commercial People (Oxford: Oxford University Press, 1989), 517
3. R. v. Knowles, ex parte Somerset, (1772) Lofft 1, 98 E.R. 499, 20 S.T. 1. This case style is the form appropriate to a habeas corpus action. The case is referred to in the English Reports, and often in the literature, as Somerset v Stewart
4. Wiecek concluded: "[f]ew English judicial decisions have figured so prominently in the growth of American constitutional law. . . . Somerset long held sway over the thinking of Americans concerned about the relationship between slavery and law. . . . [T]o Mansfield unwittingly was due 'the secret isolated joy of the thinker, who knows that, a hundred years after he is dead and forgotten, men who have never heard of him will be moving to the measure of his thought.'" William M. Wiecek, The Sources of Antislavery Constitutionalism in America, 1760-1848 (Ithaca: Cornell University Press, 1977), 39 (footnote omitted)
5. On the subsequent history for England, see Ruth Paley, "Mansfield, Slavery and the Law in England, 1772-1830," in Law, Crime and English Society, 1660-1830, ed. Norma Landau (Cambridge: Cambridge University Press, 2002), 165-84
6. for the United States, Wiecek, Antislavery Constitutionalism
7. Paul Finkelman, An Imperfect Union: Slavery, Federalism and Comity (Chapel Hill: University of North Carolina Press, 1981)
8. The literature through 1973 is ably discussed by Carol P. Bauer, "Law, Slavery, and Sommersett's Case in Eighteenth-Century England" (Ph.D. diss., New York University, 1973)
9. Later literature is summarized and discussed in James Oldham, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century (Chapel Hill: University of North Carolina Press, 1992), 1221-44
10. More recent discussions of the law of slavery in England include William R. Cotter, "The Somerset Case and the Abolition of Slavery in England," History 79 (1994): 31-56
11. Paley, "Mansfield, Slavery," 165-84
12. and James Oldham, English Common Law in the Age of Mansfield (Chapel Hill: University of North Carolina Press, 2004), 305-23
13. See, for example, Paley, "Mansfield, Slavery."
14. Eliga H. Gould, "Zones of Law, Zones of Violence: The Legal Geography of the British Atlantic, Circa 1772," William and Mary Quarterly 60, no. 3 (2003): 471-510
15. Michael J. Guasco, "Encounters, Identities, and Human Bondage: The Foundations of Racial Slavery in the Anglo-Atlantic World" (Ph.D. diss., College of William and Mary, 2000), 8-9
16. "Classical chattel slavery" as used here is a Weberian "ideal type" of legal regime where a slave was deemed property that could be sold, bequeathed, and physically damaged or destroyed with nearly complete impunity by its owner. Chattel slaves were forced to work and live at a master's arbitrary will. Slave status was perpetual and heritable, and slaves could not own property or sue in the courts. Slavery in Virginia, for example, during 1660-1770 approached this "ideal type." See Aloyisus Leon Higginbotham, In the Matter of Color: Race and the American Legal Process: The Colonial Period (New York: Oxford University Press, 1978), 53-58
17. "Emancipation" as used here is an "ideal type" of legal status where legal disabilities attached to servile status were removed and where a person's rights and duties in private labor service were independent of any involuntarily acquired status such as race or gender. In the seventeenth century, emancipation would have been described as enfranchisement: the primary meaning of "enfranchise" then was to "set free (a slave or serf)" (Oxford English Dictionary). Emancipation did not, however, mean "freedom" in the modern sense of possession of an array of political and social rights, or even in the more limited modern sense of "free labor," but instead meant freedom from legal disabilities that accompanied servile status as a slave or villein. Steinfeld's description of "liberi homines" conveys a similar idea. Robert J. Steinfeld, The Invention of Free Labor (Chapel Hill: University of North Carolina Press, 1991), 95-96
18. Mary Sarah Bilder, The Transatlantic Constitution: Colonial Legal Culture and the Empire (Cambridge: Harvard University Press, 2004), 39. Bilder's account contains an excellent discussion of the sources of this uncertainty in earlier English law
19. The English courts played an important role in such governance disputes, including slavery disputes, throughout the eighteenth century because, among other things, they established the limits of the Crown prerogative. An excellent example of this role was Mansfield's 1774 decision in Campbell v. Hall, (1774) 1 Cowp. 204, 98 E.R. 1045, determining that Grenada was a settlement to which English common law applied and that the Crown prerogative therefore could not be used to tax, a "vital confirmation of [colonial] rights against the Crown prerogative."
20. Andrew J. O'Shaughnessy, An Empire Divided: The American Revolution and the British Caribbean (Philadelphia: University of Pennsylvania Press, 2000), 131
21. This was true despite the fact that much of the colonial law of slavery in the empire was established through the Crown prerogative. Jonathan A. Bush, "The British Constitution and the Creation of American Slavery," in Slavery & the Law, ed. Paul Finkelman (Madison: Madison House, 1997), 379-418
22. Lord Chancellor Hardwicke attacked Holt's position in Pearne v. Lisle, (1749) Amb. 75, 27 E.R. 47 (see below, 620-21)
23. For Blackstone's position, see William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1765
24. facsimile ed., Chicago: University of Chicago Press, 1979) (hereafter Bl. Comm.), 1:104-5, 123 (see below, 612)
25. For the general characteristics of indentured servitude, see Steinfeld, Free Labor, 44-47
26. Douglas Hay, "England, 1562-1875: The Law and Its Uses," in Masters, Servants and Magistrates in Britain and the Empire, 1562-1955, ed. Douglas Hay and Paul Craven (Chapel Hill: University of North Carolina Press, 2004), 59-116, 67, 78
27. David Eltis, "Labour and Coercion in the English Atlantic World from the Seventeenth to the Early Twentieth Century," in The Wages of Slavery, ed. Michael Twaddle (London: Frank Cass & Co., 1993), 208
28. Eltis, "Labour and Coercion," 211
29. Guasco, "Encounters," 188
30. General treatments of black slavery in England are found in Guasco, "Encounters"; Peter Fryer, Staying Power: The History of Black People in Britain, 2d ed. (London: Pluto Press, 1985)
31. Folarin O. Shyllon, Black Slaves in Britain (London: Oxford University Press for Institute of Race Relations, 1974)
32. James Walvin, Black and White: The Negro and English Society, 1555-1945 (London: Penguin, 1973)
33. Seymour Drescher, Capitalism and Antislavery: British Mobilization in Comparative Perspective (Basingstoke: Macmillan, 1986)
34. James Walvin, Britain's Slave Empire (Stroud: Tempus, 2000)
35. Drescher, Capitalism and Antislavery, 26-29
36. Guasco, "Encounters," 244-50
37. Bush, "British Constitution and Slavery," 389. In both the seventeenth and eighteenth centuries, persons who were unquestionably chattel slaves were often referred to as "servants," as in the Royal African Company euphemism "perpetual servants," so terminology must be considered in context to understand status
38. It does not appear that in England during this period involuntary servants other than blacks were sold in public markets, routinely forced to wear unremoveable collars denoting their status as owned property (and painted into aristocratic portraits in such collars), denied baptism, or shipped out of the country into slavery as punishment. See Guasco, "Encounters," 231-405, and works cited above, n. 20, for the evolution of English attitudes toward Africans in various contexts during this period
39. The Vagrancy Act 1547, 1 Edw. 6 c.3, based enslavement on "criminal" vagrancy, not civil status, and is therefore irrelevant. For its history, see C. S. L. Davies, "Slavery and Protector Somerset: The Vagrancy Act of 1547," The Economic History Review, 2d ser, 20 (1966): 533-49
40. Some would make an exception for Scottish colliers. Eltis, "Labour and Coercion," 209-10
41. Granville Sharp attacked the "tyrannical and dangerous" practice of disciplinary imprisonment. Granville Sharp, A Representation of the Injustice and Dangerous Tendency of Tolerating Slavery or of Admitting the Least Claim of Private Property in the Persons of Men in England (London, 1769), 90
42. Morgan Godwyn, Trade Preferr'd before Religion and Christ Made to Give Place to Mammon (London, 1685), 4-5 (chaining followed by forcible shipment to colonies to avoid baptism)
43. Also see above, n. 24
44. By the late seventeenth century, masters were limited to reasonable force in "correcting" apprentices. R. v. Keller, (1683) 2 Shower 289, 89 E.R. 545
45. Keat's Case, (1696) Skin. 666, 90 E.R. 298
46. There were claims as early as the 1670s that limits on use of physical force against apprentices applied to everyone in England, including former slaves. Charles Molloy, De Jure Maritime Et Navali or, a Treatise of Affairs Maritime and of Commerce (London, 1676), 356
47. These claims may have had some merit. The argument that punishment even of slaves was limited was supported by Cartwright's Case (1569?), J. Rushworth, Historical Collections, 468 (London, 1686), and this limitation was conceded by slaveholder counsel in Somerset
48. Although Viner's 1746 Abridgement recognized a claim of trover (damages for unlawful property conversion, see below, n. 62, for details), for "Negroes" (slaves) it did not contain separate rales governing physical punishment for Negroes. Charles Viner, A General Abridgement of Law and Equity (Aldershot, 1746), 1:240 (13); 20:425 (8)
49. Larry D. Gragg, Englishmen Transplanted: The English Colonization of Barbados 1627-1660 (Oxford: Oxford University Press, 2003), 117
50. Claire Tomalin, Samuel Pepys: The Unequalled Self (New York: A. A. Knopf, 2002), 123, 177
51. Folarin O. Shyllon, "The Black Presence and Experience in Britain: An Analytical Overview," in Essays on the History of Blacks in Britain, ed. J. S. Gundara and I. Duffield (Aldershot: Avebury, 1992), 203-4
52. Shyllon, Black Slaves, 9
53. Walvin, Black and White, 60
54. Shyllon, "Black Presence," 203
55. Drescher, Capitalism and Antislavery, 174 n. 34 (Liverpool 1766, 11 slaves)
56. Prince Hoare, Memoirs of Granville Sharp, Esq., 2d ed. (London: Henry Colburn, 1828), 73-75 (London 1769)
57. Walvin, Britain's Slave Empire, 62 (1771 estate sale)
58. Drescher, Capitalism and Antislavery, 188 n. 24
59. The assault could have been prosecuted privately or publicly. Oldham, English Common Law, 260. Lisle then sued Sharp for damages for theft of his slave. Sharp discovered that his prominent counsel, and other authorities he consulted such as William Blackstone, believed Sharp had no defense to Lisle's action. Hoare, Memoirs, 48-53, 55, 59
60. Shyllon, "Black Presence," 203 (not less than 10,000 slaves by 1772, though precise data are lacking); Norma Myers, Reconstructing the Black Past: Blacks in Britain, 1780-1830 (London: Frank Cass, 1996), 20,35 (contemporary estimates of 20,000 or more London "Negro servants" by 1764; concludes that empirical data suggest between 5,000 and 10,000 blacks in London in 1780, an unknown number of whom were slaves)
61. Diarmid MacCulloch, "Bondmen under the Tudors," in Law and Government under the Tudors, ed. M. Claire Cross, David M. Loades, and J. J. Scarisbrick (Cambridge: Cambridge University Press, 1988), 91-109
62. Villeinage was a common law unfree legal status, a form of hereditary, lifetime involuntary servitude, distinguished from slavery by the fact that the villein had the rights of a freeman against persons other than his master, and very limited rights against the master himself. Villeins were sometimes termed "chattels" (a form of property), an "imperfect analogy," but a lord's rights over villeins could be bought and sold. See John H. Baker, An Introduction to English Legal History, 4th ed. (London: Butterworths, 2002), 468-72 (quotation at 469)
63. Georges Edelen, ed., The Description of England by William Harrison (Washington: Folger Shakespeare Library and Dover Inc., 1994), 118
64. Sir Thomas Smith's De Republica Anglorum was first published in the 1580s
65. If the law emancipated slaves once in England, one would expect Smith to have known about it and to have said so, and he did not. Smith, De Republica Anglorum, ed. Mary Dewar (Cambridge: Cambridge University Press, 1982), 137-38
66. In 1669 Edward Chamberlayne claimed that slaves brought to England occupied an intermediate legal status: "free, but not from ordinary service." Edward Chamberlayne, Angliae Notitia, or the Present State of England (London, 1669), 514
67. This statement remained unchanged in editions of Chamberlayne's work to the mid-eighteenth century. Drescher, Capitalism and Antislavery, 185 n. 5
68. Charles Molloy's position was similar: chattel slavery in England was unlawful, and an action of trover (an action to recover damages for property, see below, n. 62) could not be brought for a man there, but contracts for lifetime service were lawful. Charles Molloy, De Jure Maritime Et Navali, or a Treatise of Affairs Maritime and of Commerce, 4th ed. (London, 1690), 355-56
69. In a 1704 popularizing introduction to the civil law, Thomas Wood relied on the writing of Arnold Vinnius for the proposition that slaves became entirely free upon coming to England. Thomas Wood, A New Institute of the Imperial or Civil Law (London, 1704), 37-38
70. citing Arnoldi Vinnii J.C. in Quatuor Libros Institutionum Imperialum Commentarius Academicus & Forensis, 4th ed. (Amsterdam, 1695), 25, ad J. Inst. 1.3.3., Manu capiuntur. (I thank Michael Macnair for providing and translating the Vinnius reference.) Vinnius asserted that emancipation was the rule in several European countries, but did not claim that that rule applied in England
71. A broad reading of Smith v. Browne and Cooper (see below, 617), however, would support Wood's position
72. Bl. Comm., 1:123
73. Compare Edward Fiddes, "Lord Mansfield and the Sommersett Case," Law Quarterly Review 50 (1934): 499-511, 506-7
74. with Shyllon, Black Slaves, 55-76, and discussion in Oldham, English Common Law, 316-17
75. Bl. Comm., 1:104-5
76. Herbert S. Klein, The Atlantic Slave Trade (Cambridge: Cambridge University Press, 1999), 33
77. Kenneth G. Davies, The Royal African Company (London: Longmans, Green, 1957), 331-32
78. 11 November 1689 opinion of Holt and nine other judges. Public Record Office (now part of the United Kingdom National Archives) (hereafter PRO) CO 137/2
79. An Act To Settle the Trade to Africa, (1698) 9&10 Will. III, c. 26
80. Davies, Royal African Company. 294-95
81. An Act for the more easy Recovery of Debts in His Majesty's Plantations and Colonies in America, (1731/2) 5 Geo. II, c. 7
82. Although the separation of law and equity courts generally limits the use of precedents from equity in common law courts (Baker, Introduction, 97, 115), counsel and the court in Somerset cited precedents from both jurisdictions, and this article follows their example
83. Fiddes, "Sommersett Case," 499
84. William M. Wiecek, "The Origins of the Law of Slavery in British North America," Cardozo Law Review 17 (1996): 1711-85, 1725
85. James C. Oldham, "New Light on Mansfield and Slavery," Journal of British Studies 27 (1988): 45-68, 48
86. Holdsworth and Baker suggest that the common law had an "open mind" about slavery at the beginning of the seventeenth century, when villeinage essentially ended as a social institution. William S. Holdsworth, A History of English Law (London: Methuen, n.d.), 3:507-8
87. John H. Baker, The Common Law Tradition: Lawyers, Books and the Law (London: Hambledon Press, 2000), 334
88. But see above, 612-13
89. An unattributed hearsay report is J. Rushworth, Historical Collections (London, 1686), 468-69
90. John Lilburne's counsel relied on it in 1645 in arguing that the severity of Lilburne's whipping exceeded lawful bounds. The Trial of Lilburne and Wharton, in A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Year 1783, with Notes and Other Illustrations, ed. Thomas B. Howell (London: T. C. Hansard, 1816-26) (hereafter S.T.), 3:1353-54
91. Cartwright's Case was not relied on in any of the English slavery cases prior to Somerset's Case. See also above, n. 30
92. Butts v. Penny, (1677) 2 Lev. 201, 83 E.R. 518, 3 Keb. 785, 84 E.R. 1011, (as Anon.) 1 Freem. 452, 89 E.R. 338, Bodleian Library MS Rawl. C. 823 fo. 341. The attorney general intervened, so no judgment was entered, but the intervention probably had only to do with the type of property at issue (see below, n. 81)
93. A trover action was a claim for damages on the basis that personal property owned by the plaintiff had been wrongfully withheld ("converted") from plaintiff by the defendant. One predicate for that action was that the thing claimed was legally deemed property. On the history of trover, see Baker, Introduction, 397-99
94. Holdsworth, History, 7:401-47
95. Ibid
96. Bauer, "Law, Slavery," 6
97. Wedgewood and Others v. Bayly, (1682) 2 Show. 177, 89 E.R. 874, 1 Freem. 532, T. Raym. 463, Skin. 39 (several judges of court acknowledge Butts precedent in survivorship case)
98. Chambers v. Workhouse, (1693) 3 Lev. 336,83 E.R. 717
99. Pickering v. Appleby, (1721) 1 Com. 355, 92 E.R. 1109 (counsel cite Butts as precedent in trover dispute [Chambers] and in case raising question whether stock was a form of goods [Pickering])
100. Baker, Introduction, 475
101. citing Lowe v. Elton, (1677) Girdler's entries, Cambridge University Library MS Add. 9430 (2) 373
102. Gelly v. Cleve. (1694) 1 Ld. Raym. 147, 91 E.R. 994 (hearsay report)
103. The report of Lowe v. Elton contains a consistent account of what appears to be the Gelly case sub nom. Cleve v. Jolliffe
104. Viner, General Abridgement, 1:240 (13)
105. Holt had, however, held that "negroes are merchandize" under the Navigation Acts. See above, n. 51
106. In two cases that are instructive though they lack precedential effect, the 1690 case of Katherine Auker and the 1717 case of John Ceaser, Sessions Courts presided over by lay judges treated slaves as if they were neither fully slave nor free, and similarly to apprentices. The courts took jurisdiction as if the slaves were servants and ordered limited relief for both petitioners. Yet in both cases they declined to discharge petitioners from service, or order compensation, though in both cases the facts alleged would have justified such results. Auker had been imprisoned by her master and also alleged torture. Sessions Books No. 472, Middlesex County (February 1690). William J. Hardy, Middlesex County Records (London, 1905), 6
107. Ceaser had not been paid wages in fourteen years. Middlesex Records Calendar, September & October 1717
108. Chamberlaine v. Harvey, (1696) 5 Mod. 182, 87 E.R. 596, 1 Ld. Raym. 146, 91 E.R. 994, Carth. 396, 90 E.R. 830
109. The trespass writs discussed in this section belong to a group of writs used to make claims for civil wrongs. The specific phrase used in a particular trespass writ described the wrong, which in turn usually entailed proof of specific elements, and delimited damages recoverable for the wrong. For example, while trespass de bonis asportatis sought damages for the carrying away of goods, which could include their value, trespass per quod servitium amisit ("whereby he lost the service" [of his servant]) was a writ used by a master to claim damages for the loss of a servant's services, but could not be used to claim damages for injuries suffered by the servant
110. 5 Mod. 190
111. Carth. 397, 90 E.R. 830
112. An earlier analysis of Chamberlaine also concluded that the court determined the slave was like a "bound or apprenticed laborer, 'a slavish servant,' a human being whose freedom was restricted but not annihilated." William M. Wiecek, "Somerset: Lord Mansfield and the Legitimacy of Slavery in the Anglo-American World," University of Chicago Law Review 42 (1974): 86-174, 91
113. Smith v. Browne and Cooper, (1702x1706) 2 Salk. 666, 91 E.R. 567, 2 Ld. Raym. 1274, 92 E.R. 338. Indebitatus assumpsit was a form of breach of contract action
114. Smith v. Browne and Cooper; see Gavin Loughton, "The Extension of English Law Following Conquest and Settlement: The Origins of the Colonies Rule" (M. Phil. thesis, University of Oxford, 2001), 4
115. The attorney general intervened, asserting that slaves were inheritances (i.e., realty) by Virginia law and could be transferred only by deed, so no judgment was given, but that does not affect the analysis of Holt's approach to pleading
116. Smith v. Browne and Cooper
117. Smith v. Gould, (1706) 2 Salk. 666, 91 E.R. 567
118. Ld. Raym. 1274, 92 E.R. 338, I.T. Mitford MS 32 fo. 7, H.L.S. MS 1109(1), fo. 22. I thank James Oldham for copies of his transcriptions of the Inner Temple (I.T.) and Harvard Law School (H.L.S.) MS reports
119. Mitford MS; H.L.S. MS
120. Smith v. Gould, 2 Salk. 666, 91 E.R. 567
121. Mitford MS. Wiecek saw trespass as providing a means of asserting title to a slave. Wiecek, "Somerset," 93
122. Case 15-Anonymous, (1722) 2 P. Wms. 75, 24 E.R. 646. What law governed in the colonies had been an issue since the late seventeenth century, particularly in the case of Jamaica, which at one point asserted by statute that all English common law was in force in Jamaica
123. See also APC Colonial (1720-1745), vol. 3,47 (26 July) (Jamaica), and Joseph H. Smith, Appeals to the Privy Council from the American Plantations (New York: Columbia University Press, 1950), 482-83
124. Loughton, Conquest and Settlement, 69-79
125. See also Bilder, Transatlantic Constitution, 35-46 and passim
126. But cf. Daniel J. Hulsebosch, "The Ancient Constitution and the Expanding Empire: Sir Edward Coke's British Jurisprudence," Law and History Review 21 (2003): 439-82 (arguing that English law did not confer English rights on colonies)
127. Edmund Gibson, Two Letters (London, 1727), 10-13
128. Edmund Gibson, Two Letters (with an Address) (London, 1729), 10. Gibson was Bishop of London
129. Philip Yorke later became Lord Chancellor Hardwicke, one of the most influential judges of the eighteenth century, and was an important mentor to Lord Mansfield. The Opinion was quoted in full in Knight v. Wedderburn, (1778) 8 Fac. Dec. 5, Mor. 14545 (Scot. Ct. Sess.)
130. David B. Davis, The Problem of Slavery in Western Culture (1966; reprint, Oxford: Oxford University Press, 1988), 209-10
131. M. W. Jernegan, "Slavery and Conversion in the Colonies," The American Historical Review 21, no. 3 (1916): 504-27, 507 n. 19
132. See Act, n. 54
133. R v. Cartor, (1732) W Kel. 98, 25 E.R. 511
134. (as Anon) 2 Barn. 215,94 E.R. 457
135. SC R. v. Ann. a black, (1733) Eng. Leg. MS H 1778-150 f. 46 (MSF 25), H.L.S. MS 4055[3]. The woman was imprisoned for assaulting her master and sought bail. The alleged owner offered to show that she was a slave, but the court refused to permit this. There are several reasons why refusal might have occurred, including the owner's earlier failure to allege slave status and the woman's apparent marriage to a freeman surety, so the case cannot be read more broadly
136. Pearne v. Lisle, (1749) Amb. 75, 27 E.R. 47
137. Complaint of Robert Pearne, PRO C11/1097/37
138. Amb. 75, 27 E.R. 47. Davis argued that Hardwicke was relying on a statute of William III for his conclusion that Antigua law must follow English law, but there is no textual support in Pearne for the view that Hardwicke's position depended on a particular statute, as opposed to Hardwicke's "imperial Whig" view, shared with others, that English law was supreme, and colonial law could not be repugnant to it on a fundamental issue like whether slaves were property. Reed Browning, Political and Constitutional Ideas of the Court Whigs (Baton Rouge: Louisiana State University Press, 1982), 170-71
139. P. J. Marshall, "Parliament and Property Rights in the Late Eighteenth Century," in Early Modern Conceptions of Property, ed. John Brewer and Susan Staves (London: Routledge, 1995), 530-44, 531-32
140. compare David B. Davis, The Problem of Slavery in the Age of Revolution, 1770-1823 (1975; Oxford: Oxford University Press, 1999), 507
141. Hardwicke also argued that Holt had ignored or misconstrued the precedent created by villeinage because slavery was no different than villeinage, which was lawful in England, thus tacitly agreeing with Holt that English law would not permit classical chattel slavery
142. See above, n. 39, and 610
143. Shanley v. Harvey, (1762) 2 Eden 126, 28 E.R. 844
144. Granville Sharp procured Stapylton's indictment by a Middlesex grand jury for assault and false imprisonment. Stapylton removed the case to the King's Bench. Accounts of Stapylton include: Granville Sharp, Minutes of the trial of Thomas Lewis (N. Y. Historical Society MS 1771) (hereafter Minutes) and Lord Mansfield's trial notes (Oldham, Mansfield Manuscripts, 2:1242-43)
145. Minutes, 71
146. Oldham, "New Light," 51
147. Mansfield expressed concern about whether Lewis should have been permitted to testify, but it is uncertain whether this concern was genuine
148. Fiddes, "Sommersett Case," 503
149. Baker, Introduction, 139, 522-23. The "Twelve Judges" was composed of the judges of the three principal Crown courts: King's Bench, Exchequer, and Common Pleas
150. Oldham, "New Light," 48 (quoting Minutes as quoted in Hoare, Memoirs)
151. Oldham argued that Mansfield thought it was likely that the jury would find that Stapylton had no property in the slave, Lewis, because Mansfield had indicated that there had been a break in the "chain of ownership" of Lewis by Stapylton. Oldham, Mansfield Manuscripts, 1:1225-28
152. Minutes, 72
153. Fiddes, "Sommersett Case," 499-511
154. C. H. S. Fifoot, Lord Mansfield (Oxford: Oxford University Press, 1936), 41-42
155. Jerome Nadelhaft, "The Somersett Case and Slavery: Myth, Reality and Repercussions," Journal of Negro History 51 (1966): 193-208
156. Bauer, "Law, Slavery," 96-146
157. Wiecek, "Somerset"; Shyllon, Black Slaves, 77-124
158. Davis, Slavery in Revolution, 469-522
159. Jack R. Pole, "Slavery and Revolution: The Conscience of the Rich," The Historical Journal 20, no. 2(1977): 503-13
160. Higginbotham, Matter of Color, 313-55
161. Edmund Heward, Lord Mansfield (Chichester: Barry Rose, 1979), 139-49
162. Fryer, Staying Power, 120-26
163. Oldham, "New Light," 45-68
164. Oldham, Mansfield Manuscripts, 1221-44
165. Cotter, "Somerset," 31-56
166. Minutes, 5-6
167. compare Hoare, Memoirs, 91-92 (June 1771). Court records support the later date, PRO KB 21/40 (yet Thursday next fifteen days after the feast of Saint Martin 12 Geo. III), release of Stapylton's recognizances
168. 20 S.T. 1-2
169. The writ and return are in PRO KB 16/17/2
170. Courts then were generally bound by the facts in the return. Robert J. Sharpe, The Law of Habeas Corpus, 2d ed. (Oxford: Oxford University Press, 1989), 23, 64
171. 20 S.T. 8-9
172. 20 S.T. 10-11
173. 20 S.T. 11-14
174. 20 S.T. 21-22
175. 20 S.T. 22
176. At least thirteen British newspapers - and twenty-two out of twenty-four North American colonial newspapers sampled by Bradley - reported the arguments or decision. Newspapers reviewed for this article included: London Evening Post; Gazetteer & New Daily Advertiser; General Evening Post; Felix Farley's Bristol Journal; The London Packet; The Middlesex Journal; The London Chronicle; London Gazette; The Public Advertiser; The Morning Chronicle; The Edinburgh Advertiser; The Manchester Mercury; The Public Ledger; The Williamsburg Virginia Gazette; and The Charleston South Carolina Gazette. The arguments and decision were also reported in various widely circulated periodicals. See Cotter, "Somerset," 32 n. 4 (citing Bradley)
177. Hoare, Memoirs, 124
178. Wiecek, "Somerset," 102
179. The brief sketches here are taken from the Dictionary of National Biography
180. The other Somerset counsel, Mr. Allen or Alleyne, appears to have been a young West Indian about whom little else is known. Bauer, "Law, Slavery," 99 n. 10
181. Arguments of counsel from the following sources, which are either primary or contain primary materials, were used here: Hoare, Memoirs, 103-33
182. Granville Sharp, Proceedings Feb. 7, 1772, in the court of the King's Bench, London, before Chief Justice Mansfield, part of the case of James Sommersett, a slave belonging to Charles Stewart (N.Y. Historical Society MS 1772) (hereafter Proceedings); newspapers (see above, n. 119)
183. Henry Marchant, Diary (R.I. Historical Society MS 1771-2) (citations are to the typed transcript, Philadelphia Historical Society)
184. Lincoln's Inn MS Dampier, Ashhurst Paper Books (hereafter cited as "APB"), 10b
185. and the Lofft and S.T. reports. I thank Michael Macnair for bringing to my attention the existence of the Marchant diary. Detailed discussions of the hearings are found in: Bauer, "Law, Slavery," 96-146
186. Proceedings, 13
187. Proceedings, 27-28. Davy said that for Somerset he would give up the position that baptism constituted manumission, an important concession. Ibid., 74
188. Somerset had been baptized. Paley, "Mansfield, Slavery," 169
189. Proceedings, 34-35
190. Marchant, Diary, 1:119
191. General Evening Post (London) (hereafter Post), 6-8 February 1772, 3
192. Proceedings, 68
193. Post, 3
194. Proceedings, 98
195. Bauer, "Law, Slavery," 105
196. Davis's magisterial treatment on one occasion attributes to Lord Mansfield remarks that James Mansfield (see above, 626) made. Davis, Slavery in Revolution, 497
197. compare London Evening Post, 9-12 May 1772, 4
198. 20 S.T. 48
199. 20 S.T. 68
200. 20 S.T. 70
201. Using Dunning's figures, about 580 million Great Britain pounds or $1 billion in today's purchasing power
202. Post, 28 May 1772 (West Indians have "obtained a promise from Mr. Steuart not to accommodate the Negro cause, but to have the point solemnly determined; since, if the laws of England do not confirm the colony laws with respect to property in slaves, no man of common sense will, for the future, lay out his money in so precarious a commodity. The consequences of which will be inevitable ruin to the British West-Indies. The price of slaves is, we hear, already greatly enhanced on account of the Negro question; and people say that, 'till it is finally decided, the African trade will be in a manner annihilated'")(emphash added). On slave rebellions in the West Indies, several of which had occuned in Jamaica in the early to mid-1760s, see O'Shaughnessy, An Empire Divided, 36-10
203. APB, 10b
204. London Evening Post, 21-23 May 1772, 4
205. Gazeteer and New Daily Advertiser, 26 May 1772, 4
206. APB, 10 b
207. Gazetteer and New Daily Advertiser, 4
208. In today's purchasing power, approximately 50 million Great Britain pounds or $90 million
209. See above, n. 146
210. Journal of the House of Commons XXXIII 789 (25 May 1772)
211. Morning Chronicle, 26 May 1772, 2. The slaveowners' motion suffered a type of procedural defeat that was a common Parliamentary tactic for avoidance of controversial issues; the agenda then contained no urgent business
212. Langford noted that there had been a sharp growth of abolitionist sentiment among prominent Englishmen and in many colonies by the 1770s. Langford, A Polite and Commercial People, 517
213. Manchester Mercury, 2 June 1772, 1
214. Fiddes, "Sommersett Case," 508-9 (slaveholders' Parliamentary efforts were not vigorous; assigns no reason). The West Indian lobby had limited, albeit substantial, power in Parliament and had other pressing issues that concerned its members. O'Shaughnessy, An Empire Divided
215. Several newspaper sources say the judgment was written, but no manuscript has been located
216. Oldham, "New Light," 54-60. The reports were: Lofft I
217. The Scots Magazine, vol 34, 297 (June 1772)
218. Sharp Judgement (N.Y. Historical Society MS 1772)
219. Ashhurst, LI Dampier MSS APB 10b
220. Hill MS 10, J. H. Baker, English Legal Manuscripts, 2:81 (H 1787-A87), MSF 92, f. 312-314
221. The Hill MS was a report copied from notebooks of John Balguy, a junior banister who later became a Welsh judge. J. Bruce Williamson, The Middle Temple Bench Book, 2d ed. (London 1937), 198 (I thank Guy Holborn of Lincoln's Inn Library for this reference). Based on notations in Hill's notebook, which also identified Balguy as the report's author (hereafter Hill/Balguy report), it is unlikely that Hill copied the report before 1774; there is no indication that Hill compared it to other reports
222. These included at least the newspapers listed above, n. 119
223. The brief reports. Some newspapers reported that Lord Mansfield had indeed freed slaves who came to England, but subject to an important limitation: "Lord Mansfield . . . said, that every Slave brought into this Country ought to be free, and that no Master had a Right to sell them here . . . but he declared that the Owner might bring an Action of Trover against any one who shall take the Black into his service." Manchester Mercury, 30 June 1772, 1
224. Other newspapers carried a shortened, materially different version of that report. Felix Farley's Bristol Journal, 27 June 1772, 2
225. Yet other newspapers initially reported a much narrower decision by Lord Mansfield, "that [the] master had no power to compel him on board a ship, or to send him back to the plantations." Post, 20-23 June 1772, 3
226. Daily Advertiser, 23 June 1772, 1
227. Other newspapers combined this description of a narrow holding with a statement that the judgment provided a trover action for owners. London Evening Post, 20-23 June 1772, 3
228. Another report stated: "Lord Mansfield . . . delivered the unanimous opinion . . . that the man's being a Negro Slave, did not authorize his Master to transport him out of the kingdom. . . ." London Chronicle, 20-23 June 1772, 6
229. Post, 21-23 June 1772, 4
230. Edinburgh Advertiser, 30 June-3 July 1772, 1-2
231. An identical report appeared in The Scots Magazine vol. 34 (June 1772), 298-99. See Appendix 1 of this article (online version only) for a transcript of this report
232. Davis's account of Somerset also relied on this newspaper report, although he referred to it as the Scots Magazine report; the two are identical. Davis, Slavery in Revolution. The newpaper/Scots Magazine report is preferable for several reasons: (i) had Lord Mansfield regarded the report as inaccurate, he could easily have had it revised; (ii) if it had been materially inaccurate someone probably would have attacked it, which did not occur; (iii) the report is corroborated in several respects by Justice Ashhurst's notes; (iv) the Barbados London agent and attorney Samuel Estwick accepted this report as a reasonably accurate account of Lord Mansfield's decision even in the 1773 second edition of a pamphlet he wrote attacking the decision. Samuel Estwick, Considerations on the Negroe Cause Commonly So Called, 2d ed. (London, 1773). It has been suggested that Estwick would have preferred the newspaper report, but in view of the slaveowners' views on the necessity of judicial relief and Estwick's attack on the decision, this seems unlikely. More important, it seems fairly unlikely that Estwick would have relied on any report known to be inaccurate by the time his attack's second edition appeared, since to have done so would have damaged his credibility, and opposing pamphleteers like Francis Hargrave would have been quick to point this out; (v) the newspaper report was consistent with Mansfield's views in various cases discussed below
233. The detailed newspaper report and the Hill/Balguy report disagreed on whether, as the newspaper reported, Mansfield stated that "courts of justice" could not introduce slavery now on "mere reasoning from any principles natural or political," or whether, as the Hill/Balguy report says, he instead stated his conclusion that slavery could not ever be based on such "natural or political" principles but could instead only be based on positive law. The better view, as discussed below (641-42), is that the judgment did refer to the limited powers of courts of justice. Mansfield also said that because slavery was an "odious" condition, "it" or "immemorial usage" regarding it, depending on the account, must be "taken" or "construed" strictly. Mansfield meant that any alleged immemorial usage supporting slavery must meet stringent criteria (not met by contemporary slavery) to be deemed valid. Mansfield may also have meant that immemorial usage or positive law must clearly authorize any treatment of a person as only a chattel slave could be treated before such treatment would be deemed lawful. Mansfield then concluded that under English law, a master had never been permitted to "take a slave [servant] by force to be sold abroad." The word "servant" appears at this point in the Hill/Balguy MS; "slave" appears in the detailed newspaper account. The "detailed" newspaper report is correct here. Mansfield used the term "slave" again later in explaining Somerset, see R. v. Inhabitants of Thames Ditton, (1785) 4 Doug. 300, 99 E.R. 891, Lincoln's Inn MS Misc. 131 (Abbot) f.135, H 1787-C124 (MSF 113) f. 135
234. Middle Temple MS Gibbs, Cases in King's Bench 24 & 25 Geo. 3 f. 240 (Abbot MS)
235. Contrast e.g. Raynard v. Chase, (1756) 1 Burr. 2, 97 E.R. 155 (brewery investment challenged as unlawful). The judgment is analyzed using the "detailed" newspaper report (see n. 165), except as noted
236. R. v. Inhabitants of Thames Ditton, (quotation in Abbot MS report) (emphasis added). See Appendix 2 of this article (online version only) for a transcription of the Abbot MS report
237. This was Davis's position, Davis, Slavery in Revolution, 498, and is very consistent with Mansfield's comments throughout Somerset distinguishing between issues raised by the use of force and those raised by other aspects of servitude
238. There is no substantial evidence that Lord Mansfield's judgment discussed any specific legal authority other than the Yorke-Talbot Opinion and Pearne v. Lisle, a telling omission
239. Chamberlaine, Smith v. Gould, and Somerset are cited as the principal support for this proposition in a classic conflict of laws text. A. V. Dicey and J. H. C. Carlile, Dicey and Morris on the Conflict of Laws, ed. L. A. Collins, 13th ed. (London: Sweet and Maxwell, 2000), 85 n. 42
240. Each expressed the view that Somerset could have gone either way. Holdsworth, History, 3:507-8
241. Oldham, Mansfield Manuscripts, 1:1240 ("outcome was not inexorable")
242. That Lord Chancellor Hardwicke had been Mansfield's mentor does not alter this conclusion
243. Estwick, Considerations, xii-xiii
244. See above, 616, 618
245. See above, 621
246. Several writers relied on later events to explain intent, e.g., Fiddes, "Sommersett Case"; Cotter, "Somerset"; Paley, "Mansfield, Slavery."
247. Mansfield had expressed general concern on this point as early as Stapylton. Hoare, Memoirs, 91
248. Thomas Hutchinson, The Diary and Letters of His Excellency Thomas Hutchinson, Esq. (Boston: Houghton Mifflin, 1884-86), 2:277
249. R. v. Inhabitants of Thames Ditton
250. R. v. Inhabitants of Thames Ditton, (Abbot MS report)
251. Calvin's Case, (1608) 7 Co. Rep. la, 77 E.R. 377, 2 S.T. 559
252. I am indebted to Kim's excellent study on citizenship here. Keechang Kim, Aliens in Medieval Law: The Origins of Modern Citizenship (Cambridge: Cambridge University Press, 2000), 176-211. Calvin's Case held that someone born in Scotland after the accession of James I to the English throne would not be disqualified from holding property in England, because the Scot had been born into the allegiance of the English king. As infidel aliens, African slaves would not have benefited from Calvin's Case
253. Davis concluded similarly that English law (including Somerset) "did not totally dissolve the pre-existing relationship between master and slave." Davis, Slavery in Revolution, 498
254. and n. 52. But cf. Drescher, Capitalism and Antislavery, 37-38
255. Oldham, "New Light," 45. The prominent exception is Cotter, "Somerset."
256. Nadelhaft, "The Somersett Case," 199-201
257. Paley, "Mansfield, Slavery," 181-84
258. Fiddes, "Sommersett Case," 508
259. Drescher agreed that Mansfield sought and deliberately maintained ambiguity about his position, though his reasoning was somewhat different. Drescher, Capitalism and Antislavery, 40-41
260. The imperial political significance of the West Indies is made clear by the fact that during the 1760s and 1770s, "British colonial policy increasingly discriminated against the North American colonies in favor of the British West Indies." O'Shaughnessy, An Empire Divided, 106
261. Campbell v. Hall. Hardwicke thought all colonies were governed by English law on slavery (see above, 620-21)
262. Blackstone's position (see above, 612) ignored the uncertainty and vacillation on this point that led to persistent conflict on the status of American colonies throughout the eighteenth century. Loughton, Conquest and Settlement, 84-87
263. Bilder, Transatlantic Constitution, 39
264. There is no evidence that Lord Mansfield polled all of the other judges before announcing the judgment in Somerset. Bauer, "Law, Slavery," 123 n. 9. Lord Mansfield stated that the unanimity among the King's Bench judges on the specific point to be decided meant that further argument - before the other benches - was unnecessary. In short, despite several earlier statements that such argument would occur - even if the King's Bench judges were unanimous - Lord Mansfield sought to limit consideration of Somerset to the King's Bench
265. A good survey of the eighteenth-century common law-statute law relationship is David Lieberman, The Province of Legislation Determined (Cambridge: Cambridge University Press, 1989)
266. Harrison v. Evans, (1767) 3 Bro. P.C. 465, 1 E.R. 1437, described in detail in Philip Furneaux, Letters to the Honourable Mr. Justice Blackstone Concerning His Exposition of the Act of Toleration, and Some Positions Relative to Religious Liberty, in His Celebrated Commentaries on the Laws of England, 2d ed. (London, 1771)
267. Fumeaux, Letters, 263-64, 278
268. Several writers have argued English law had no effect on colonial law on slavery, e.g., Davis, Slavery in Revolution, 469-522, 501 (English courts, including Somerset, permitted colonial slavery to develop unchecked)
269. Bush, "British Constitution," 388-89 (prerogative supported the growth of slavery independent of English law); Gould, "Zones of Law," 471-510
270. O'Shaughnessy analyzed the political importance to England of the continued allegiance of the West Indies in the American Revolution. One important effect of the Revolution was to diminish sharply the political force of the British slaveowners' lobby, because it represented only half as many slaves after the Revolution as before. O'Shaughnessy, An Empire Divided, xii
271. The Jamaican Assembly's 1789 protest regarding British slave trade legislation showed that the Assembly knew there was a substantial question about whether compensation would be required if slavery was limited. Ibid., 245-46
272. For example, Spanish Florida, which emancipated British colonial slaves, had therefore been a "magnet" for fugitive slaves since the end of the seventeenth century. Ira Berlin, Generations of Captivity (Cambridge: Harvard University Press, 2003), 44. Mansfield's ruling meant that slaves who escaped there became free not just under Spanish law but under English law, depriving colonists of any basis for seeking their return or compensation
273. Edward Long, Candid Reflections on the Negroe Cause (London, 1772)