Somerset v Stewart
Somerset v Stewart is a judgment of the English Court of King's Bench in 1772, relating to the right of an enslaved person on English soil not to be forcibly removed from the country and sent to Jamaica for sale. According to one reported version of the case, Lord Mansfield decided that:
Lord Mansfield found that to the extent that the laws of England and Wales had ever permitted slavery, those laws were superseded by later law or otherwise defunct. This absence of a current English statute under which the court might remand someone as a slave proved decisive, as Mansfield refused to accept any other basis for the court to order something that he considered repugnant. The case was closely followed throughout the Empire, particularly in the thirteen American colonies, although the ruling had no direct or immediate effect outside Britain. A similar Scottish case concluded in 1778. Scholars have disagreed over precisely what legal precedent the Somerset case set.
Facts
, an enslaved African, was purchased by Charles Stewart, a customs officer when he was in Boston, Province of Massachusetts Bay, a British crown colony in North America.Stewart brought Somerset with him when he returned to England in 1769, but in October 1771 Somerset escaped. After he was recaptured in November, Stewart had him imprisoned on the ship Ann and Mary, bound for the British colony of Jamaica. He directed that Somerset be sold to a plantation for labour. Somerset's three godparents from his baptism as a Christian in England—John Marlow, Thomas Walkin and Elizabeth Cade—made an application on 3 December before the Court of King's Bench for a writ of habeas corpus. Captain Knowles on 9 December produced Somerset before the Court of King's Bench, which had to determine whether his imprisonment was lawful.
The Chief Justice of the King's Bench, Lord Mansfield, ordered a hearing for 21 January; in the meantime he set the prisoner free on recognisance. Somerset's counsel's request to prepare arguments was granted, and so it was not until 7 February 1772 that the case was heard. In the meantime, the case had attracted a great deal of attention in the press and members of the public donated money to support the lawyers for both sides of the argument.
Granville Sharp, an abolitionist layman who continually sought test cases against the legal justifications for slavery, was Somerset's real backer. When the case was heard, five advocates appeared for Somerset, speaking at three hearings between February and May. These lawyers included Francis Hargrave, a young lawyer who made his reputation with this, his first case; James Mansfield; Serjeant-at-law William Davy; Serjeant-at-law John Glynn; John Alleyne; and the noted Irish lawyer and orator John Philpot Curran, whose lines in defence of Somerset were often quoted by American abolitionists, such as Frederick Douglass and Harriet Beecher Stowe in Uncle Tom's Cabin, chapter 37.
Somerset's advocates argued that while colonial laws might permit slavery, neither the common law of England nor any statutory law made by Parliament recognised the existence of slavery, and that slavery in England was therefore unlawful. They also argued that English contract law did not allow for any person to enslave himself, nor could any contract be binding without the person's consent. The arguments focused on legal details rather than any humanitarian principles. When the two lawyers for Charles Stewart put their case, they argued that property was paramount and that it would be dangerous to free all the black people in England.
Judgment
After hearing oral arguments, Lord Mansfield proposed that Stewart could avoid the potentially far-reaching effects on slave-owners' profits if he were to allow Somerset to go free and not to insist on the court issuing a final judgment. Otherwise, Mansfield said that he would give judgment, and "let justice be done whatever the consequence":File:William Murray, 1st Earl of Mansfield.jpg|right|thumb|Portrait of William Murray by Jean-Baptiste van Loo, 1737. As Lord Mansfield he sat in judgement on the case
Stewart opted to continue with the case, and Mansfield retired to make his decision, reserving judgment for more than a month. He gave his judgment on 22 June 1772.
Significance
After the decision
Somerset was freed and his supporters, who included black and white Londoners, celebrated. While argument by counsel may have been based primarily on legal technicalities, Lord Mansfield appeared to believe that a great moral question had been posed and he deliberately avoided answering that question in full, because of its profound political and economic consequences. In a later case , he commented about the Somerset case: "The determinations go no further than that the master cannot by force compel him to go out of the kingdom."There were reactions from prominent individuals in Britain over the decision; Sharp rhetorically asked "why is it that the poor sooty African meets with so different a measure of justice in England and America, as to be adjudged free in the one, and in the other held in the most abject Slavery?" The hymnwriter William Cowper wrote in a poem that "we have no slaves at home - then why abroad?" Polymath and slave owner Benjamin Franklin, who was visiting England at the time, was less impressed with the celebrations of British abolitionists over the case, criticising their celebrations,
Mansfield is often misquoted as declaring that "this air is too pure for a slave to breathe in" but no such words appear in the judgment. Rather, these words are part of the peroration of William Davy, Serjeant-at-Law for Somerset, who previously had cited a report of a 1569 case, in the reign of Elizabeth I, in which "one Cartwright brought a slave from Russia and would scourge him; for which he was questioned; and it was resolved, that England was too pure an air for a slave to breathe in"; it is not clear that this was said in the Cartwright case either. Some legal historians think it was a misquote of an excerpt from Lord Chief Justice John Holt's judgment in Smith v Gould, in which he is reported to have said: "as soon as a negro comes to England he is free; one may be a villein in England but not a slave".
Precedent
Legal academics have argued for years over what legal precedent was set in the case. Differences in reports of the judgment make it hard to determine how far Lord Mansfield went in acknowledging the principles behind his deliberately narrow ruling. The passage of the judgment in the standard collections of law reports does not appear to refer to the removal of slaves by force from the country, whereas the same passage in the informal report by letter to the Evening Post, quoted above, does.In 1785, Lord Mansfield expressed the view in R v Inhabitants of Thames Ditton that his ruling in the Somerset case decided only that a slave could not be forcibly removed from England against his will. In the Thames Ditton case, a black woman named Charlotte Howe had been brought to England as a slave by one Captain Howe. After Captain Howe died, Charlotte sought poor relief from the Parish of Thames Ditton. Mansfield stated that the Somersett case had determined only that a master could not force a slave to leave England, much as in earlier times a master could not forcibly remove his villein. He ruled that Charlotte was not entitled to relief under Poor Laws because relief was dependent on having been "hired" and this did not relate to slaves. In the official report of the case, Lord Mansfield is recorded as interrupting counsel to state "The determinations go no further than that the master cannot by force compel him to go out of the kingdom."
The official report of Thames Ditton case supports the account of his judgment given in The Times letter and it is the strongest argument for a limited scope to the decision. Mansfield's judgment in the Somerset case does not say explicitly that slaves became free when they entered England—it is silent as to what their status in England was. In the Thames Ditton case, Lord Mansfield appeared to compare a slave's status to that of "villein in gross"—an ancient feudal status of servitude that had not been abolished from English law but which had died out. He had not done so in the Somerset case despite the invitation of Stewart's counsel.
The Somerset judgment, even if limited to prohibiting the forcible removal of slaves from England, established a radical precedent. It went against the published opinion of the Attorney-General, Sir Philip Yorke and the Solicitor-General, Mr Talbot in 1729 and the court decision of Sir Philip Yorke, by then Lord Chancellor Hardwicke, in 1749 in the case of Pearne v Lisle. The latter had stated that slaves were items of property, who were not emancipated either by becoming Christian or by entry into England, that possession of them could be recovered by the legal action of trover and that their master might lawfully compel them to leave England with him. The claim of 1749 relied on the opinion of 1729, which quoted no precedents and gave no reasoning. There were other freedom suits with different rulings before 1772, notably Shanley v Harvey and R v Stapylton. While Mansfield's judgment avoided making a definitive judgment about the legality of slavery in England, it nonetheless challenged the assumptions that enslaved people were no more than property and that "Britishness" and whiteness were inseparable categories.
The precedent established by Somerset's case was seen to have wider implications. In The Slave Grace in 1827, Lord Stowell upheld the decision of the Vice-Admiralty Court in Antigua, whereby a slave who had returned to the colonies, after having resided in England for a year where she was free and no authority could be exercised over her, by her voluntary return had to submit to the authority over her resulting from the slavery law of Antigua. Lord Stowell criticised Lord Mansfield's judgment in the Somerset case, describing it as having reversed the judgment of Lord Hardwicke and establishing that "the owners of slaves had no authority or control over them in England, nor any power of sending them back to the colonies".
Lord Stowell further said:
This wider reading of Somerset's case appears to be supported by the judgment of Mr. Justice Best in Forbes v Cochrane in 1824. He said, "There is no statute recognising slavery which operates in that part of the British empire in which we are now called upon to administer justice." He described the Somerset case as entitling a slave in England to discharge and rendering any person attempting to force him back into slavery as guilty of trespass but not all reports of the case agree.
Whatever the technical legal ratio decidendi of the case, the public at large widely understood the Somerset case to mean that, on English soil at least, no man was a slave.