Somerset: Lord Mansfield and the Legitimacy of Slavery in the Anglo-American World

Somerset: Lord Mansfield and the Legitimacy of Slavery in the Anglo-American World* William M. Wiecekt At Westminster on June 22, 1772, Lord Mansfield, Chief Justice of King's Bench, the highest common law court in England, delivered a brief oral opinion in the case of Somerset v. Stewart.' James Somerset, a black alleged to be the runaway slave of Charles Stewart, had sought a writ of habeas corpus to prevent Stewart from seizing and detaining him in England for shipment to Jamaica to be sold. As reported by Capel Lofft,2 Mansfield held: [T]he only question before us is, whether the cause on the return [to the writ] is sufficient? If it is, the negro must be remanded; if it is not, he must be discharged. Accordingly, the return states, that the slave departed and refused to serve; whereupon he was kept, to be sold abroad. So high an act of dominion must be recognized by the law of the country where it is used. The power of a master over his slave has been extremely different, in different countries. The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory: It's so odious, that nothing can be suffered to support it but positive law. Whatever inconveniences, therefore, may follow from a decision, I cannot say this case is allowed or approved * An early version of this paper was presented at a conference on the law of slavery at The University of Chicago Law School on January 25, 1974. I wish to thank the organizers and participants for criticism and suggestions. I must also express my great indebtedness to Professor David Brion Davis of Yale University, whose draft paper presented ht that conference was the source of invaluable leads to evidence, particularly the Granville Sharp transcripts in the New-York Historical Society. t Associate Professor of History, University of Missouri-Columbia. 1. Lofft 1, 98 Eng. Rep. 499 (K.B. 1772). 2. There is some question about precisely what Mansfield said. For purposes of this paper, I adopt Capel Lofft's version as canonical. My reasons for doing so are set forth in the Appendix, along with a survey of the variant reports of Mansfield's opinion and the attendant controversy. See text and notes at notes 224-40 infra. 86 The Legitimacy of Slavery 1974] by the law of England; and therefore the black must be dis3 charged. Mansfield thereby laid down a landmark opinion in Anglo-American jurisprudence, and one that epitomized many characteristics and problems of the judge-made law of slavery. This law, as developed by English and American jurists, had a curiously indeterminate quality; it was more often than not ambiguous and equivocal. Grounded on shifting considerations of public policy or jurisprudential theory, enunciated by men whose opinions spanned the entire spectrum of pro- and antislavery beliefs, and above all misunderstood by contemporaries and later generations, the case law of slavery evolved in striking contrast with the statutes governing slaves. The latter generally consisted of clear and specific "thou-shalts" and "thou-shalt-nots" regulating the minutiae of behavior of whites and blacks alike. It is one of the paradoxes of slavery in the Anglo-American experience, however, that this iron structure rested on such an uncertain jurisprudential foundation. No other decision so well illustrates the ambiguities of slave case law as Somerset. No other English decision on slavery has been so often quoted and almost as often misunderstood; no comparable opinion has proliferated such a case law progeny with such protean interpretations. Somerset best illustrates a legal world where things are not what they seem, a world of deceptive appearances and unforeseen consequences. Technically considered, the judgment in Somerset settled only two narrow points of English law: a master could not seize a slave and remove him from the realm against the slave's will, and a slave could secure a writ of habeas corpus to prevent that removal. Yet many contemporaries, as well as historians, 4 thought Somerset abolished slavery in England; a few thought it challenged slavery in the colonies as well. Mansfield's utterances had a plangent quality, suggesting that slavery could not legitimately exist anywhere; or, less expansively, that where slavery was established it existed in derogation of natural rights. English writers, displaying 3. Lofft at 19, 98 Eng. Rep. at 510. 4. The contemporaries will be discussed below. For examples of historians' interpretations, see D. DUMOND, ANTISLAVERY: THE CRUSADE FOR FREEDOM IN AMERICA 5 (1961); Lynd, Rethinking Slavery and Reconstnwtion, 50 J. NEGRO HIsT. 198, 201 (1965); Martin, The English Slave Trade and the African Settlements, in 1 THE CAMBRIDGE HISTORY OF THE BRITISH EMPIRE: THE OLD EMPIRE, FROM THE BEGINNINGS TO 1783, at 449 (J. Rose et al. eds. 1929). On the origins and prevalence of their misunderstanding, see F. SHYLLON, BLACK SLAVES IN BRITAIN iX-X (1974). The University of Chicago Law Review [42:86 what Winthrop Jordan has called "that preening consciousness of the peculiar glories of English liberties," 5 quickly adopted the more sweeping interpretation, leading Benjamin Franklin, in London at the time, to write home in disgust to Anthony Benezet about "the hypocrisy of this country, which encourages such a detestable commerce by laws for promoting the Guinea trade; while and the equity of its it piqued itself on its virtue, love of liberty, 6 negro." single a free setting in courts, Though Mansfield and other jurists subsequently disavowed these broad implications, the decision as reported by Capel Lofft took on a life of its own and entered the mainstream of American constitutionalism. Somerset furnished abolitionists with some of the most potent ideological weapons in their arsenal. At first, even slave state jurists accepted its antislavery premises; when they could do so no longer, they worked out justifications of slavery that explained away or repudiated the case. Thus Somerset became a cloud over the legitimacy of slavery in America, a result that would have surprised and annoyed Mansfield. Somerset is a fascinating milestone in Anglo-American legal history for reasons other than its tantalizing obscurity and protean potential. It had a lasting impact on American conflict of law theory. It reflected changing conceptions of thejus gentium and influenced the development of interstate relations in the American federal system. It revitalized notions of natural or fundamental law and infused them into American case law. It posed basic constitutional problems for the British imperial system, though these became irrelevant four years later with the declaration of American independence. It was a significant judicial expansion of the scope of habeas corpus and a benchmark in (...truncated)