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Somerset's Case and Its Antecedents in Imperial Perspective

Published online by Cambridge University Press:  18 August 2010

George Van Cleve
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Extract

James Somerset was taken from Africa as a slave to the Americas in 1749. He was sold in Virginia to Charles Steuart, a Scottish merchant and slave trader in Norfolk who served after 1765 as a high-ranking British customs official. In 1769, Steuart took Somerset with him to England. After two years in England, Somerset escaped from Steuart, but was recaptured. Steuart decided to sell Somerset back into slavery in Jamaica, and, in late November 1771, Somerset was bound in chains on a ship on the Thames, the Ann and Mary, awaiting shipment.

Type
Forum: Somerset's Case Revisited
Information
Law and History Review , Volume 24 , Issue 3 , Fall 2006 , pp. 601 - 646
Copyright
Copyright © the Board of Trustees of the University of Illinois 2006

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References

1. For biographical information on Somerset and Steuart, see Weiner, Mark S., “New Biographical evidence on Somerset's Case,” Slavery and Abolition 23 (2002): 121–36CrossRefGoogle Scholar.

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3. Knowles, R. v., ex parte Somerset, (1772)Google Scholarlofft 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.“‘Wiecek, William M., The Sources of Antislavery Constitutionalism in America, 1760–1848 (Ithaca: Cornell University Press, 1977), 39 (footnote omitted)Google Scholar.

5. on the subsequent history for england, see Paley, Ruth, “Mansfield, Slavery and the law in england, 1772–1830,” in Law, Crime and English Society, 1660–1830, ed. landau, Norma (Cambridge: Cambridge University Press, 2002), 165–84CrossRefGoogle Scholar; for the United States, Wiecek, Antislavery Constitutionalism; Finkelman, Paul, An Imperfect Union: Slavery, Federalism and Comity (Chapel Hill: University of North Carolina Press, 1981)Google Scholar.

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10. “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 Higginbotham, Aloyisus leon, In the Matter of Color: Race and the American Legal Process: The Colonial Period (New York: oxford University Press, 1978), 53–58Google Scholar.

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12. Bilder, Mary Sarah, The Transatlantic Constitution: Colonial Legal Culture and the Empire (Cambridge: Harvard University Press, 2004), 39Google Scholar. Bilder's account contains an excellent discussion of the sources of this uncertainty in earlier english law.

13. 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) 1Google ScholarCowp. 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.” O'Shaughnessy, Andrew J., An Empire Divided: The American Revolution and the British Caribbean (Philadelphia: University of Pennsylvania Press, 2000), 131Google Scholar. This was true despite the fact that much of the colonial law of slavery in the empire was established through the Crown prerogative. Bush, Jonathan A., “The British Constitution and the Creation of American Slavery,” in Slavery & the Law, ed. Finkelman, Paul (Madison: Madison House, 1997), 379–418Google Scholar.

14. lord Chancellor Hardwicke attacked Holt's position in Pearne v. Lisle, (1749) Amb. 75, 27 e.r. 47 (see below, 620–21). For Blackstone's position, see Blackstone, William, Commentaries on the Laws of England (oxford: Clarendon Press, 1765Google Scholar; facsimile ed., Chicago: University of Chicago Press, 1979) (hereafter Bl. Comm.), 1:104–5, 123 (see below, 612).

15. For the general characteristics of indentured servitude, see Steinfeld, , Free Labor, 44–47Google Scholar.

16. Hay, Douglas, “England, 1562–1875: The law and Its Uses,” in Masters, Servants and Magistrates in Britain and the Empire, 1562–1955, ed. Hay, Douglas and Craven, Paul (Chapel Hill: University of North Carolina Press, 2004), 59–116Google Scholar, 67, 78; Eltis, David, “labour and Coercion in the english Atlantic World from the Seventeenth to the early Twentieth Century,” in The Wages of Slavery, ed. Twaddle, Michael (London: Frank Cass & Co., 1993), 208Google Scholar.

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19. Ibid., 6–9, 67–68, 244–50.

20. General treatments of black slavery in england are found in Guasco, “encounters”; Fryer, Peter, Staying Power: The History of Black People in Britain, 2d ed. (London: Pluto Press, 1985)Google Scholar; Shyllon, Folarin O., Black Slaves in Britain (London: Oxford University Press for Institute of race relations, 1974)Google Scholar; Walvin, James, Black and White: The Negro and English Society, 1555–1945 (London: Penguin, 1973)Google Scholar; Drescher, Seymour, Capitalism and Antislavery: British Mobilization in Comparative Perspective (Basingstoke: Macmillan, 1986)CrossRefGoogle Scholar; Walvin, James, Britain's Slave Empire (Stroud: Tempus, 2000)Google Scholar.

21. Drescher, , Capitalism and Antislavery, 26–29.Google Scholar

22. Guasco, , “encounters,” 244–50.Google Scholar

23. Bush, , “British Constitution and Slavery,” 389Google Scholar. 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.

24. 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.

25. 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 Davies, C. S. I., “Slavery and Protector Somerset: The Vagrancy Act of 1547,” The Economic History Review, 2d ser, 20 (1966): 533–49CrossRefGoogle Scholar.

26. Some would make an exception for Scottish colliers. Eltis, , “labour and Coercion,” 209–10Google Scholar.

27. Granville Sharp attacked the “tyrannical and dangerous” practice of disciplinary imprisonment. Sharp, Granville, 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), 90Google Scholar.

28. Godwyn, Morgan, Trade Preferr'd before Religion and Christ Made to Give Place to Mammon (London, 1685), 4–5Google Scholar(chaining followed by forcible shipment to colonies to avoid baptism).

29. Also see above, n. 24. 30. 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; Keat's Case, (1696)Google ScholarSkin. 666, 90 e.r. 298. 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. Molloy, Charles, De Jure Maritimo Et Navali or, a Treatise of Affairs Maritime and of Commerce (London, 1676), 356Google Scholar. These claims may have had some merit. The argument that punishment even of slaves was limited was supported by Cartwright's Case (1569?), Rushworth, J., Historical Collections, 468 (London, 1686)Google Scholar, and this limitation was conceded by slaveholder counsel in Somerset. 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 rules governing physical punishment for Negroes. Viner, Charles, A General Abridgement of Law and Equity (Aldershot, 1746), 1:240Google Scholar(13); 20:425 (8).

31. Gragg, Larry D., Englishmen Transplanted: The English Colonization of Barbados 1627–1660 (oxford: oxford University Press, 2003), 117.CrossRefGoogle Scholar

32. Tomalin, Claire, Samuel Pepys: The Unequalled Self (New York: A. A. Knopf, 2002), 123, 177.Google Scholar

33. Shyllon, Folarin O., “The Black Presence and experience in Britain: An Analytical overview,” in Essays on the History of Blacks in Britain, ed. Gundara, J. S. and Duffield, I. (Aldershot: Avebury, 1992), 203–4.Google Scholar

34. Shyllon, , Black Slaves, 9.Google Scholar

35. Walvin, , Black and White, 60.Google Scholar

36. Shyllon, , “Black Presence,” 203.Google Scholar

37. Drescher, , Capitalism and Antislavery, 174Google Scholarn. 34 (liverpool 1766, 11 slaves); Hoare, Prince, Memoirs of Granville Sharp, Esq., 2d ed. (London: Henry Colburn, 1828), 73–75Google Scholar(London 1769); Walvin, , Britain's Slave Empire, 62Google Scholar(1771 estate sale).

38. Drescher, , Capitalism and Antislavery, 188Google Scholarn. 24.

39. The assault could have been prosecuted privately or publicly. oldham, , English Common Law, 260Google Scholar. 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, 48–53Google Scholar, 55, 59.

40. Shyllon, , “Black Presence,” 203Google Scholar(not less than 10,000 slaves by 1772, though precise data are lacking); Myers, Norma, Reconstructing the Black Past: Blacks in Britain, 1780–1830 (London: Frank Cass, 1996), 20Google Scholar, 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).

41. MacCulloch, Diarmid, “Bondmen under the Tudors,” in Law and Government under the Tudors, ed. Cross, M. Claire, loades, David M., and Scarisbrick, J. J. (Cambridge: Cambridge University Press, 1988), 91–109CrossRefGoogle Scholar. 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 Baker, John H., An Introduction to English Legal History, 4th ed. (London: Butterworths, 2002), 468–72Google Scholar(quotation at 469).

42. Steinfeld, , Free Labor, 96–102.Google Scholar

43. Edelen, Georges, ed., The Description of England by William Harrison (Washington: Folger Shakespeare library and Dover Inc., 1994), 118.Google Scholar

44. Sir Thomas Smith's De Republica Anglorum was first published in the 1580s. 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. Dewar, Mary (Cambridge: Cambridge University Press, 1982), 137–38Google Scholar.

45. In 1669 edward Chamberlayne claimed that slaves brought to england occupied an intermediate legal status: “free, but not from ordinary service.” Chamberlayne, Edward, Angliae Notitia, or the Present State of England (London, 1669), 514Google Scholar. This statement remained unchanged in editions of Chamberlayne's work to the mideighteenth century. Drescher, , Capitalism and Antislavery, 185Google Scholarn. 5. 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. Molloy, Charles, De Jure Maritimo Et Navali, or a Treatise of Affairs Maritime and of Commerce, 4th ed. (London, 1690), 355–56Google Scholar. 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. Wood, Thomas, A New Institute of the Imperial or Civil Law (London, 1704), 37–38Google Scholar, citing Arnoldi Vinnii J.C. in Quatuor Libros Institutionum Imperialum Commentarius Academicus & Forensis, 4th ed. (Amsterdam, 1695), 25Google Scholar, 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. A broad reading of Smith v. Browne and Cooper (see below, 617), however, would support Wood's position.

46. Bl. Comm., 1:123. 47. Compare Fiddes, Edward, “Lord Mansfield and the Sommersett Case,” Law Quarterly Review 50 (1934): 499–511Google Scholar, 506–7, with Shyllon, , Black Slaves, 55–76Google Scholar, and discussion in oldham, , English Common Law, 316–17Google Scholar.

48. Bl. Comm., 1:104–5.

49. Klein, Herbert S., The Atlantic Slave Trade (Cambridge: Cambridge University Press, 1999), 33.Google Scholar

50. Davies, Kenneth G., The Royal African Company (London: Longmans, Green, 1957), 331–32.Google Scholar

51. 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.

52. An Act To Settle the Trade to Africa, (1698) 9&10 Will. III, c. 26.Google Scholar

53. Davies, , Royal African Company, 294–95.Google Scholar

54. An Act for the more easy Recovery of Debts in His Majesty's Plantations and Colonies in America, (1731/1732) 5 Geo. II, c. 7.Google Scholar

55. Although the separation of law and equity courts generally limits the use of precedents from equity in common law courts ( Baker, , Introduction, 97, 115)Google Scholar, counsel and the court in Somerset cited precedents from both jurisdictions, and this article follows their example.

56. Fiddes, , “Sommersett Case,” 499Google Scholar; Wiecek, William M., “The origins of the law of Slavery in British North America,” Cardozo Law Review 17 (1996): 1711–85Google Scholar, 1725; oldham, James C., “New light on Mansfield and Slavery,” Journal of British Studies 27 (1988): 45–68CrossRefGoogle Scholar, 48. 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. Holdsworth, William S., A History of English Law (London: Methuen, n.d.), 3:507–8Google Scholar; Baker, John H., The Common Law Tradition: Lawyers, Books and the Law (London: Hambledon Press, 2000), 334Google Scholar.

57. But see above, 612–13. 58. An unattributed hearsay report is Rushworth, J., Historical Collections (London, 1686), 468–69Google Scholar.

59. 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, 1816-1826)Google Scholar(hereafter S.T.), 3:1353–54.

60. Cartwright's Case was not relied on in any of the english slavery cases prior to Somerset's Case. See also above, n. 30.

61. 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).

62. 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, 397–99Google Scholar; Holdsworth, , History, 7:401–47Google Scholar.

63. Walvin, , Black and White, 110.Google Scholar

64. Ibid.

65. Bauer, , “law, Slavery,” 6.Google Scholar

66. Wedgewood and Others v. Bayly, (1682) 2Google ScholarShow. 177, 89 e.r. 874, 1 Freem. 532, T. raym. 463, Skin. 39 (several judges of court acknowledge Butts precedent in survivorship case); Chambers v. Warkhouse, (1693) 3 lev. 336, 83 e.r. 717Google Scholar; Pickering v. Appleby, (1721) 1 Com. 355, 92 e.r. 1109Google Scholar(counsel cite Butts as precedent in trover dispute [Chambers] and in case raising question whether stock was a form of goods [Pickering]).

67. Baker, , Introduction, 475Google Scholar, citing Lowe v. Elton, (1677)Google ScholarGirdler's entries, Cambridge University library MS Add. 9430 (2) 373.

68. Gelly v. Cleve, (1694)Google Scholar1 ld. raym. 147, 91 e.r. 994 (hearsay report). The report of Lowe v. Elton contains a consistent account of what appears to be the Gelly case sub nom. Cleve v. Jolliffe.

69. Viner, , General Abridgement, 1:240 (13).Google Scholar

70. Holt had, however, held that “negroes are merchandize” under the Navigation Acts. See above, n. 51.

71. 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). Hardy, William J., Middlesex County Records (London, 1905), 6Google Scholar. Ceaser had not been paid wages in fourteen years. Middlesex records Calendar, September & october 1717.

72. Chamberlaine v. Harvey, (1696) 5Google ScholarMod. 182, 87 e.r. 596, 1 ld. raym. 146, 91 e.r. 994, Carth. 396, 90 e.r. 830.

73. 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.

74. 5 Mod. 190.

75. Carth. 397, 90 e.r. 830.

76. 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.” Wiecek, William M., “Somerset: lord Mansfield and the legitimacy of Slavery in the Anglo-American World,” University of Chicago Law Review 42 (1974): 86–174, 91CrossRefGoogle Scholar.

77. Carth. 397, 90 e.r. 830.

78. 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.

79. Smith v. Browne and Cooper; see loughton, Gavin, “The extension of english law Following Conquest and Settlement: The origins of the Colonies rule” (M. Phil. thesis, University of oxford, 2001), 4Google Scholar.

80. Baker, , Introduction, 475.Google Scholar

81. 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.

82. Smith v. Browne and Cooper.

83. Smith v. Gould, (1706) 2Google ScholarSalk. 666, 91 e.r. 567; 2 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.

84. Mitford MS; H.l.S. MS. 85. Smith v. Gould, 2 Salk. 666, 91 e.r. 567. 86. Mitford MS. Wiecek saw trespass as providing a means of asserting title to a slave. Wiecek, , “Somerset,” 93.Google Scholar

87. 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. See also APC Colonial (1720–1745), vol. 3, 47 (26 July) (Jamaica), and Smith, Joseph H., Appeals to the Privy Council from the American Plantations (New York: Columbia University Press, 1950), 482–83Google Scholar.

88. Loughton, , Conquest and Settlement, 69–79Google Scholar. See also Bilder, , Transatlantic Constitution, 35–46Google Scholarand passim. But cf. Hulsebosch, Daniel J., “The Ancient Constitution and the expanding empire: Sir edward Coke's British Jurisprudence,” Law and History Review 21 (2003): 439–82CrossRefGoogle Scholar(arguing that english law did not confer english rights on colonies).

89. Gibson, Edmund, Two Letters (London, 1727), 10–13Google Scholar; Gibson, Edmund, Two Letters (with an Address) (London, 1729), 10Google Scholar. Gibson was Bishop of London.

90. 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) 8Google ScholarFac. Dec. 5, Mor. 14545 (Scot. Ct. Sess.).

91. Davis, David B., The Problem of Slavery in Western Culture (1966; reprint, oxford: oxford University Press, 1988), 209–10Google Scholar; Jernegan, M. W., “Slavery and Conversion in the Colonies,” The American Historical Review 21, no. 3 (1916): 504–27, 507 n. 19CrossRefGoogle Scholar.

92. See Act, n. 54.

93. R v. Cartor, (1732) W Kel. 98, 25 e.r. 511, (as Anon) 2 Barn. 215, 94 e.r. 457, 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.

94. Pearne v. Lisle, (1749) Amb. 75, 27 e.r. 47. 95. Complaint of robert Pearne, Pro C11/1097/37. 96. 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), 170–71Google Scholar; Marshall, P. J., “Parliament and Property rights in the late eighteenth Century,” in Early Modern Conceptions of Property, ed. Brewer, John and Staves, Susan (London: Routledge, 1995), 530–44Google Scholar, 531–32; compare Davis, David B., The Problem of Slavery in the Age of Revolution, 1770–1823 (1975; oxford: oxford University Press, 1999), 507Google Scholar.

97. 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 eng-land, thus tacitly agreeing with Holt that english law would not permit classical chattel slavery.

98. See above, n. 39, and 610.

99. Shanley v. Harvey, (1762) 2Google Scholareden 126, 28 e.r. 844.

100. 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: Sharp, Granville, Minutes of the trial of Thomas Lewis (N.Y. Historical Society MS 1771)Google Scholar(hereafter Minutes) and lord Mansfield's trial notes( oldham, , Mansfield Manuscripts, 2:1242–43)Google Scholar.

101. Minutes, 71.

102. Oldham, , “New light,” 51.Google Scholar

103. Mansfield expressed concern about whether lewis should have been permitted to testify, but it is uncertain whether this concern was genuine.

104. Fiddes, , “Sommersett Case,” 503.Google Scholar

105. Baker, , Introduction, 139Google Scholar, 522–23. The “Twelve Judges” was composed of the judges of the three principal Crown courts: King's Bench, exchequer, and Common Pleas.

106. Oldham, , “New light,” 48Google Scholar(quoting Minutes as quoted in Hoare, Memoirs).

107. 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, 1:1225–28Google Scholar.

108. Minutes, 72.

109. Fiddes, , “Sommersett Case,” 499–511Google Scholar; Fifoot, C. H. S., Lord Mansfield (Oxford: Oxford University Press, 1936), 41–42Google Scholar; Nadelhaft, Jerome, “The Somersett Case and Slavery: Myth, reality and repercussions,” Journal of Negro History 51 (1966): 193–208CrossRefGoogle Scholar; Bauer, , “law, Slavery,” 96–146Google Scholar; Walvin, , Black and White, 117–31Google Scholar; Wiecek, “Somerset”; Shyllon, , Black Slaves, 77–124Google Scholar; Davis, , Slavery in Revolution, 469–522Google Scholar; Pole, Jack R., “Slavery and revolution: The Conscience of the rich,” The Historical Journal 20, no. 2 (1977): 503–13CrossRefGoogle Scholar; Higginbotham, , Matter of Color, 313–55Google Scholar; Heward, Edmund, Lord Mansfield (Chichester: Barry rose, 1979), 139–49Google Scholar; Drescher, , Capitalism and Antislavery, 37–49Google Scholar; Fryer, , Staying Power, 120–26Google Scholar; Oldham, , “New light,” 45–68Google Scholar; Oldham, , Mansfield Manuscripts, 1221–44Google Scholar; Cotter, , “Somerset,” 31–56Google Scholar; Paley, , “Mansfield, Slavery,” 165–84Google Scholar.

110. Minutes, 5–6; compare Hoare, , Memoirs, 91–92Google Scholar(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.

111. 20 S.T. 1–2.

112. The writ and return are in Pro KB 16/17/2.

113. Courts then were generally bound by the facts in the return. Sharpe, Robert J., The Law of Habeas Corpus, 2d ed. (Oxford: oxford University Press, 1989), 23, 64Google Scholar.

114. 20 S.T. 8–9.

115. 20 S.T. 10–11.

116. 20 S.T. 11–14.

117. 20 S.T. 21–22.

118. 20 S.T. 22.

119. 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,” 32Google Scholarn. 4 (citing Bradley).

120. Hoare, , Memoirs, 124.Google Scholar

121. Wiecek, , “Somerset,” 102.Google Scholar

122. The brief sketches here are taken from the Dictionary of National Biography.

123. 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. 10Google Scholar.

124. Arguments of counsel from the following sources, which are either primary or contain primary materials, were used here: Hoare, , Memoirs, 103–33Google Scholar; Sharp, Granville, 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)Google Scholar(hereafter Proceedings); newspapers (see above, n. 119); Henry Marchant, Diary (R.I. Historical Society MS 1771–2) (citations are to the typed transcript, Philadelphia Historical Society); lincoln's Inn MS Dampier, Ashhurst Paper Books (hereafter cited as “APB”), 10b; 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,” 96–146Google Scholar; Shyllon, , Black Slaves, 77–124Google Scholar; Davis, , Slavery in Revolution, 469–522Google Scholar; Higginbotham, , Matter of Color, 336–48Google Scholar.

125. Proceedings, 13.

126. Proceedings, 27–28. Davy said that for Somerset he would give up the position that baptism constituted manumission, an important concession. Ibid., 74. Somerset had been baptized. Paley, , “Mansfield, Slavery,” 169Google Scholar.

127. Proceedings, 34–35.

128. Marchant, , Diary, 1:119.Google Scholar

129. General Evening Post (London) (hereafter Post), 6–8 February 1772, 3Google Scholar; Marchant, , Diary, 1:119Google Scholar.

130. Marchant, , Diary, 1:120.Google Scholar

131. Ibid. 132. Proceedings, 68; Marchant, Diary, 1:120.

133. Marchant, , Diary, 1:120.Google Scholar

134. Post, 3.

135. Proceedings, 98.

136. Ibid., 108.

137. Ibid., 102.

138. Marchant, , Diary, 1:123.Google Scholar

139. Ibid.

140. Bauer, , “law, Slavery,” 105Google Scholar; Hoare, , Memoirs, 125–26Google Scholar. Davis's magisterial treatment on one occasion attributes to lord Mansfield remarks that James Mansfield (see above, 626) made. Davis, , Slavery in Revolution, 497Google Scholar; compare London Evening Post, 9–12 May 1772, 4Google Scholar.

141. Hoare, , Memoirs, 126.Google Scholar

142. 20 S.T. 48.

143. 20 S.T. 68.

144. 20 S.T. 70.

145. Using Dunning's figures, about 580 million Great Britain pounds or $1 billion in today's purchasing power.

146. 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“‘)(emphasis added). on slave rebellions in the West Indies, several of which had occurred in Jamaica in the early to mid-1760s, see O'Shaughnessy, , An Empire Divided, 36–40Google Scholar.

147. APB, 10b.

148. London Evening Post, 21–23 May 1772, 4; Gazeteer and New Daily Advertiser, 26 May 1772, 4Google Scholar.

149. APB, 10 b.

150. Gazetteer and New Daily Advertiser, 4.

151. In today's purchasing power, approximately 50 million Great Britain pounds or $90 million.

152. Gazetteer and New Daily Advertiser, 4.

153. APB, 10b.

154. London Evening Post, 21–23 May 1772, 4.Google Scholar

155. See above, n. 146.

156. Journal of the House of Commons XXXIII 789 (25 May 1772)Google Scholar; Morning Chronicle, 26 May 1772, 2Google Scholar. 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.

157. 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, 517Google Scholar.

158. See above, n. 146.

159. Manchester Mercury, 2 June 1772, 1.Google Scholar

160. Fiddes, , “Sommersett Case,” 508–9Google Scholar(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.

161. Several newspaper sources say the judgment was written, but no manuscript has been located.

162. Oldham, , “New light,” 54–60Google Scholar. The reports were: lofft 1; The Scots Magazine, vol 34, 297 (June 1772)Google Scholar; Sharp Judgement (N.Y. Historical Society MS 1772); Ashhurst, lI Dampier MSS APB 10b; Hill MS 10, Baker, J. H., English Legal Manuscripts, 2:81Google Scholar(H 1787-A87), MSF 92, f. 312–314. The Hill MS was a report copied from notebooks of John Balguy, a junior barrister who later became a Welsh judge. Williamson, J. Bruce, The Middle Temple Bench Book, 2d ed. (London 1937), 198Google Scholar(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.

163. These included at least the newspapers listed above, n. 119.

164. 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, 1Google Scholar. other newspapers carried a shortened, materially different version of that report. Felix Farley's Bristol Journal, 27 June 1772, 2Google Scholar. 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, 3Google Scholar; Daily Advertiser, 23 June 1772, 1Google Scholar. 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, 3Google Scholar. 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, 6Google Scholar.

165. London Evening Post, 23–25 June 1772, 1Google Scholar; Post, 21–23 June 1772, 4Google Scholar; Edinburgh Advertiser, 30 June—3 July 1772, 1–2Google Scholar. 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.

166. 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. Estwick, Samuel, Considerations on the Negroe Cause Commonly So Called, 2d ed. (London, 1773)Google Scholar. 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.

167. 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) 4Google ScholarDoug. 300, 99 e.r. 891, lincoln's Inn MS Misc.131 (Abbot) f.135, H 1787-C124 (MSF 113) f. 135, Middle Temple MS Gibbs, Cases in King's Bench 24 & 25 Geo. 3 f. 240 (Abbot MS).

168. Contrast e.g. Raynard v. Chase, (1756) 1Google ScholarBurr. 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.

169. 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.

170. 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.

171. 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.

172. 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 Carlile, J. H. C., Dicey and Morris on the Conflict of Laws, ed. Collins, I. A., 13th ed. (London: Sweet and Maxwell, 2000), 85 n. 42.Google Scholar

173. Each expressed the view that Somerset could have gone either way. Holdsworth, , History, 3:507–8Google Scholar; Oldham, , Mansfield Manuscripts, 1:1240Google Scholar(“outcome was not inexorable”).

174. That lord Chancellor Hardwicke had been Mansfield's mentor does not alter this conclusion.

175. Estwick, , Considerations, xii–xiii.Google Scholar

176. See above, 616, 618.

177. See above, 621.

178. Several writers relied on later events to explain intent, e.g., Fiddes, “Sommersett Case”; Cotter, “Somerset”; Paley, “Mansfield, Slavery.”

179. Mansfield had expressed general concern on this point as early as Stapylton. Hoare, , Memoirs, 91Google Scholar.

180. Hutchinson, Thomas, The Diary and Letters of His Excellency Thomas Hutchinson, Esq. (Boston: Houghton Mifflin, 1884-1886), 2:277Google Scholar; R. v. Inhabitants of Thames Ditton.

181. R. v. Inhabitants of Thames Ditton, (Abbot MS report).

182. Post, 6–8 February 1772, 3; Marchant, Diary, 1:119.

183. Calvin's Case, (1608) 7Google ScholarCo. rep. 1a, 77 e.r. 377, 2 S.T. 559. I am indebted to Kim's excellent study on citizenship here. Kim, Keechang, Aliens in Medieval Law: The Origins of Modern Citizenship (Cambridge: Cambridge University Press, 2000), 176–211CrossRefGoogle Scholar. 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.

184. Davis concluded similarly that english law (including Somerset) “did not totally dissolve the pre-existing relationship between master and slave.” Davis, , Slavery in Revolution, 498Google Scholarand n. 52. But cf. Drescher, , Capitalism and Antislavery, 37–38Google Scholar.

185. Estwick, , Considerations, 46.Google Scholar

186. Oldham, , “New light,” 45Google Scholar. The prominent exception is Cotter, “Somerset.”

187. Nadelhaft, , “The Somersett Case,” 199–201Google Scholar; Walvin, , Black and White, 125Google Scholar; Paley, , “Mansfield, Slavery,” 181–84Google Scholar; Fiddes, , “Sommersett Case,” 508Google Scholar; Wiecek, , “Somerset,” 108Google Scholar.

188. Drescher agreed that Mansfield sought and deliberately maintained ambiguity about his position, though his reasoning was somewhat different. Drescher, , Capitalism and Antislavery, 40–41Google Scholar.

189. Fiddes, , “Sommersett Case,” 503–4.Google Scholar

190. 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.Google Scholar

191. e.g., Marchant, , Diary, 1:123Google Scholar.

192. Campbell v. Hall. Hardwicke thought all colonies were governed by english law on slavery (see above, 620–21). 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, 84–87Google Scholar; Bilder, , Transatlantic Constitution, 39Google Scholar.

193. Manchester Mercury, 2 June 1772, 1.Google Scholar

194. There is no evidence that lord Mansfield polled all of the other judges before announcing the judgment in Somerset. Bauer, , “law, Slavery,” 123Google Scholarn. 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.

195. A good survey of the eighteenth-century common law-statute law relationship is Lieberman, David, The Province of Legislation Determined (Cambridge: Cambridge University Press, 1989)CrossRefGoogle Scholar.

196. Harrison v. Evans, (1767) 3Google ScholarBro. P.C. 465, 1 e.r. 1437, described in detail in Furneaux, Philip, 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)Google Scholar.

197. Furneaux, , Letters, 263–64Google Scholar, 278.

198. Oldham, , “New light,” 57–60Google Scholar. oldham is correct that Mansfield wanted any immemorial usage allegedly supporting slavery strictly construed.

199. Several writers have argued english law had no effect on colonial law on slavery, e.g., Davis, , Slavery in Revolution, 469–522Google Scholar, 501 (english courts, including Somerset, permitted colonial slavery to develop unchecked); Bush, , “British Constitution,” 388–89Google Scholar(prerogative supported the growth of slavery independent of english law); Gould, , “Zones of law,” 471–510Google Scholar.

200. 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.Google Scholar

201. 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.

202. For example, Spanish Florida, which emancipated British colonial slaves, had therefore been a “magnet” for fugitive slaves since the end of the seventeenth century. Berlin, Ira, Generations of Captivity (Cambridge: Harvard University Press, 2003), 44Google Scholar. 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.

203. Higginbotham, , Matter of Color, 313.Google Scholar

204. Shyllon, , Black Slaves, 154.Google Scholar

205. Estwick, Considerations; long, Edward, Candid Reflections on the Negroe Cause (London, 1772)Google Scholar.

206. Davis, , Slavery in Revolution, 501.Google Scholar

207. Ibid.