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The Somerset Effect: Parsing Lord Mansfield's Words on Slavery in Nineteenth Century America

Published online by Cambridge University Press:  18 July 2014

Derek A. Webb
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Extract

In his 1950 movie Rashomon, the famed Japanese director Akira Kurosowa presented a tale of a deadly crime that took place in a grove, which was witnessed by four individuals. Each of these individuals then proceeded to report what they saw in mutually contradictory ways. The movie has since received the ultimate honor of having a phrase coined in popular culture to describe its central message. The “Rashomon effect” is used to describe those occasions when a single event is perceived in contradictory, although perhaps equally plausible, ways by the different witnesses on hand, telling us at least as much about the internal dynamics within the witnesses to the event as about the event itself.

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Articles
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Law and History Review , Volume 32 , Issue 3 , August 2014 , pp. 455 - 490
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Copyright © the American Society for Legal History, Inc. 2014 

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References

1. Wise, Steven M., Though the Heavens May Fall: The Landmark Trial that Led to the End of Human Slavery (Massachusetts: De Capo Press, 2005)Google Scholar.

2. See, generally, Shyllon, F.O., Black Slaves in Britain (London: Oxford University Press, 1974)Google Scholar; Wiecek, William M., “Somerset: Lord Mansfield and the Legitimacy of Slavery in the Anglo-American World,” University of Chicago Law Review 42 (1974–1975): 86–146CrossRefGoogle Scholar; and Oldham, James, “New Light on Mansfield and Slavery,” The Journal of British Studies 27 (1988): 45–68Google Scholar.

3. Somerset v. Stewart Lofft 1, 98 ER 499 (1772).

4. Jerome Nadelhaft focused on the ways in which abolitionists as a whole, because of their reliance upon the inaccurate court report produced by Capel Lofft, misread the Somerset decision to stand for the general emancipation of all slaves in England. Nadelhaft, Jerome, “The Somersett Case and Slavery: Myth, Reality, and Repercussions,” The Journal of Negro History 51 (1966): 193–208Google Scholar. Robert Cover found in Somerset a consistent precedential beacon for abolitionist lawyers and judges throughout the nineteenth century, an authoritative statement of the immorality of slavery used to point out the gap between the law as it was and as it ought to be, and a positive law basis for judges to take into consideration these moral principles in their adjudication of conflict of law cases. Cover, Robert, Justice Accused: Antislavery and the Judicial Process (New Haven: Yale University Press, 1975), 83–99Google Scholar. See also Dyer, Justin Buckley, Natural Law and the Antislavery Constitutional Tradition (Cambridge: Cambridge University Press, 2012), 37–73Google Scholar. Paul Finkelman focused on the ways in which Northern and Southern courts moved from initially “rejecting Somerset” and accepting comity, deferring to other state legal systems in their choice of law cases, to, at least in the North, “accepting Somerset” and rejecting comity, summarily freeing slaves who crossed into free states and disregarding other states' laws, while all along according a mostly fixed, stable meaning to the Somerset decision. Finkelman, Paul, An Imperfect Union: Slavery, Federalism, and Comity (Chapel Hill: University of North Carolina Press, 1981)Google Scholar. Alfred W. Blumrosen similarly deployed the “Somerset Rejected”–“Somerset Accepted” framework in his short work covering the reception of Somerset throughout all of American history: “The Profound Influence in America of Lord Mansfield's Decision in Somerset v. Stuart,” Texas Wesleyan Law Review 13 (2006): 645–57Google Scholar. Don Fehrenbacher and Cheryl Harris both observed the ways in which the opinion could be used by both abolitionists and proslavery Southern jurists, prompting Harris to observe that “there never was a singular legacy of the case,” but neither explored this in much detail or investigated Somerset's various reception among the different schools of abolitionists. Fehrenbacher, Don E., The Dred Scott Case: Its Significance in American Law and Politics (New York: Oxford University Press, 1978), 53–56Google Scholar; and Harris, Cheryl, “Too Pure an Air:” Somerset's Legacy from Anti-Slavery to Colorblindness,” Texas Wesleyan Law Review 13 (2006): 439Google Scholar. And William Wiecek, who has come the closest of any scholar to date to accurately reporting how “Somerset burst the confines of Mansfield's judgment,” and who was the first to notice the different reception of Somerset among the three categories of abolitionists (radical, Garrisonian, and moderate), overlooked numerous interesting state court cases as well as much of the rich nonjudicial literature interpreting Somerset, and neglected to critically examine the strikingly complex and nuanced argumentative structure of the different interpretative postures that he canvassed. Wiecek, William, “Somerset: Lord Mansfield and the Legitimacy of Slavery in the Anglo-American World,” University of Chicago Law Review 42 (1974): 86–146Google Scholar; and The Sources of Antislavery Constitutionalism in America, 1760–1848 (Ithaca: Cornell University Press, 1977)Google Scholar.

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7. Ibid, 63–64.

8. Blackstone, William, Commentaries on the Laws of England, 4 vols. (Oxford: Clarendon, 1765–69)Google Scholar, 1:123.

9. Wiecek, 33.

10. Ibid.

11. Oldham, “New Light on Mansfield,” 320.

12. Greenwood v. Curtis, 6 Mass. 358, 374 n.2 (1810).

13. In that case, he said, Mansfield “determined, that by the constitution of England, slavery could not exist there; and that, consequently, there was no authority in that kingdom, by which a slave, transported thither, could be compelled to return to a state of bondage. Hunter v. Fulcher, 1 Leigh 172, 179 (1829).

14. Jackson v. Bulloch, 12 Conn. 38, 42 (1837).

15. Kauffman v. Oliver, 10 Pa. 514, 517 (1849).

16. Anderson v. Poindexter, 6 Ohio St. 622, 667 (1856).

17. Ibid, “That such was the scope of the decision as understood in this country when Mr. Justice Story wrote his work on the conflict of laws, is also manifest. After stating that there is a uniformity of opinion among foreign jurists and foreign tribunals, that no effect whatever is to be given in one country to the slave system of another, he says: ‘This is also the undisputed law of England. It has been solemnly decided, that the law of England abhors and will not endure the existence of slavery within the nation; and, consequently, as soon as a slave lands in England, he becomes ipso facto, a freeman, and discharged from a state of servitude.’ Story's Confl. Laws, sec. 99.”

18. Lemmon v. New York, 20 N.Y. 562, 605 (1860). “It was the opinion of the court that a state of slavery could not exist except by force of positive law, and it being considered that there was no law to uphold it in England, the principles of the law respecting the writ of habeas corpus immediately applied themselves to the case, and it became impossible to continue the imprisonment of the negro. The case was decided in 1772, and from that time it became a maxim that slaves could not exist in England. The idea was reiterated in the popular literature of the language, and fixed in the public mind by a striking metaphor which attributed to the atmosphere of the British Islands a quality which caused the shackles of the slave to fall off.”

19. Smith, Gerrit, Speech on the Nebraska Bill (April 6, 1854), in Speeches of Gerrit Smith in Congress (New York: Mason Brothers, 1856), 128Google Scholar.

20. Spooner, The Unconstitutionality of Slavery, 30–35.

21. Goodell, Slavery and Anti-Slavery, 51.

22. Van Cleve, George, “Somerset's Case and Its Antecedents in Imperial Perspective,” Law and History Review 24 (2006): 601–45Google Scholar.

23. Kauffman v. Oliver, 10 Pa. 514, 517 (1849).

24. Spooner, Unconstitutionality of Slavery, 36.

25. Ibid, 36–37.

26. Ibid, 36–37.

27. Phillis v. Lewis, 1 Del. Cas. 417 (1796). (emphasis added). “Slavery in this state does not extend, nor has it ever been held to extend, to other persons than Negroes and mulattoes descended from a female Negro. There is no law which recognizes slaves of any other description, nor any custom which has allowed others to be held in slavery. The law would warrant us to say that a Negro or mulatto might be a slave, but we know of no authority which would justify us in expressing the same opinion as to any other description of people.”

28. Phillips, Wendell, Review of Lysander Spooner's Essay on the Unconstitutionality of Slavery (Bedford: Applewood Books, 1847)Google Scholar, 81.

29. Rex v. Inhabitants of Thames Ditton, 4 Doug. 300 (1785); see Oldham, James, English Common Law in the Age of Mansfield (Chapel Hill: University of North Carolina Press, 2004)Google Scholar, 314, 318.

30. Willis v. Jolliffee, 11 Rich. Eq. 447, 469 (1860).

31. Ibid.

32. Anderson v. Poindexter, 6 Ohio St. 622, 709–10 (1856). Chief Judge Bartley added that although some of the confusion regarding Mansfield's opinion may have been attributable to the imperfections of its reporting, this was ultimately no excuse. “While it is to be regretted, that the report of Lord Mansfield's opinion had not been more full and explicit, it is very certain there is nothing in it which sustains the doctrine upon which the decision of the case before us is placed.”

33. Phillips, Review of Lysander Spooner's Essay, 81.

34. Jackson v. Bulloch, 12 Conn. 38 (1837).

35. Phillips, Review of Lysander Spooner's Essay, 81.

36. Ibid.

37. Ibid, 85.

38. Chouteau v. Pierre, 9 Mo. 3, 8 (1845).

39. Ibid, 84.

40. Oldham, “New Light on Mansfield and Slavery,” 55–56.

41. Ibid.

42. Ibid.

43. Ibid.

44. United States v. Fisher, 6 U.S. 358, 390 (1805).

45. Foner, Eric, The Fiery Trial: Abraham Lincoln and American Slavery (New York: Norton, 2010), 78Google Scholar.

46. Chase, Salmon P., Reclamation of Fugitives from Service: An Argument for the defendant, submitted to the Supreme Court of the United States, at the December Term, 1846, in the case of Wharton Jones vs. John Vanzandt (Cincinnati: R. P. Donogh & Co, 1846), 83Google Scholar.

47. Ibid.

48. Ibid, 84.

49. Ibid,, 83.

50. Lincoln, Abraham, Speech on the Kansas–Nebraska Act (October 16, 1854), in Lincoln: Speeches and Writings 1832–1858 (New York: Library of America, 1989), 324Google Scholar. (hereinafter, Lincoln, Kansas–Nebraska Speech).

51. 1860 Republican Party Platform http://cprr.org/Museum/Ephemera/Republican_Platform_1860.html accessed July 9th, 2014.

52. Story, Joseph, Commentaries on the Conflict of Laws, Foreign and Domestic (Boston: Little, Brown, and Company, 1834), 157Google Scholar.

53. Ibid., 159.

54. The Antelope, 23 U.S. 10 Wheat. 66 (1825).

55. Com. v. Aves, 18 Pick. 193, 211–212 (1836). Quoted in Story, Commentaries, at 158–59.

56. Ibid.

57. Lincoln, Kansas–Nebraska Speech, 324–25.

58. Anderson v. Poindexter, 6 Ohio St. 622, 656 (1856).

59. Cong. Globe, 27th Cong., 2nd Sess. 342 (1842).

60. See Barnett, Randy, “Whence Comes Section One: The Abolitionist Origins of the Fourteenth Amendment,” Journal of Legal Analysis 3 (2011), 189–90CrossRefGoogle Scholar (discussing the objections of some moderate abolitionists such as Chase and Byron Paine to Story's endorsement of the constitutionality of the Fugitive Slave Act because, as articles of treaty, the provisions of Article IV were not within Congress's power to enforce, except where expressly authorized, as for example with the Full Faith and Credit clause.)

61. Prigg v. Pennsylvania, 41 U.S. 539, 612 (1842).

62. James Madison, June 17, 1788, Virginia Ratifying Convention, Documentary History of the Ratification of the Constitution, Volume X: Virginia no. 3, p. 1339.

63. Story, Commentaries, 163–64.

64. But see Barnett, note 60 above.

65. Harry et. al. v. Decker and Hopkins, 1 Walker 36, 42 (Miss., 1818).

66. Mahoney v. Ashton, 4 MD (4 Har. & McH.) 295 (1799).

67. Rankin v. Lydia, 2 A. K. Marshall 467, 470 (Ky., 1820).

68. Lunsford v. Coquillon 2 Mart. (n.s.) 401, 1824 WL 1649 (La., 1824).

69. Johannsen, Robert W. ed., The Lincoln–Douglas Debates of 1858 (Oxford: Oxford University) (1965), 88.Google Scholar

70. Cong. Globe, 35th Cong., 1st Sess. 1067 (1858).

71. Ibid.

72. Neal v. Farmer, 9 Ga 555 (Ga. 1851).

73. Ibid.

74. Thornwell, James Henley, The State of the Country, Southern Presbyterian Review (Columbia: Southern Guardian Steam-Power Press, 1861), 13Google Scholar.

75. Dew, Thomas Roderick, “Professor Dew on Slavery”, in The Pro-Slavery Argument, as Maintained by the Most Distinguished Writers of the Southern States (Philadelphia, 1853), 246Google Scholar.

76. Cobb, Thomas R. R., An Inquiry Into the Law of Negro Slavery in the United States of America, To Which is Prefixed, an Historical Sketch of Slavery (Philadelphia: T. & J. W. Johnson & Co., 1858), xxxvGoogle Scholar.

77. Sawyer, George, Southern Institutes; Or, an Inquiry into the Origin and Early Prevalence of Slavery and the Slave-Trade: With an Analysis of the Laws, History, and Government of the Institution in the Principal Nations, Ancient and Modern, from the Earliest Ages down to the Present Time. with Notes and Comments in Defence of the Southern Institutions (Philadelphia, J. P. Lippincott & Co., 1858), 28–29Google Scholar.

78. Ibid, 322. “It seems to have been decided, not as a question of right, founded upon law, but either upon some defect in the return or as a question of conscience, good morals, and sound public policy in England. As the case is reported, it is difficult to see the consistency of the reasoning of the court. We submit the question to more experienced jurists, whether it is within the province of the judiciary of any government to decide upon questions of public policy, farther than such policy may be indicated by the spirit of the law, or to decide questions of conscience, farther than their office extends under the law as conservators of public morals; that whenever they overreach these limits, they usurp the legislative power of the government.”

79. Ibid, 323.

80. Cobb, An Inquiry, 5.

81. Ibid., 51.

82. Alexander Stephens, Cornerstone Speech (March 21, 1861), in Cleveland, Henry, Alexander H. Stephens, in Public and Private: With Letters and Speeches, Before, During, and Since the War (Philadelphia: National Publishing Company, 1866), 717–29Google Scholar.

83. Wiecek, The Sources of Antislavery Constitutionalism in America, 20.