Somerset v Stewart (1772) 98 ER 499 (also known as Sommersett v Steuart, Somersett's case, and the Mansfield Judgment) is a judgment of the English Court of King's Bench, relating to the right of a slave on English soil not to be forcibly removed from the country and sent to Jamaica for sale.
The action was commenced on behalf James Somerset, an enslaved African who had been purchased by Charles Stewart while he was in North America, at the time a British crown colony. On his return to England, Stewart brought Somerset with him. After continuing for some time in servitude in England, Somerset escaped. He was recaptured a few weeks later, and was imprisoned on a ship bound for the British colony of Jamaica, where he was to be sold on to a plantation owner. Friends of Somerset made an application in 1771 to the Court of King's Bench for a writ of habeas corpus, requiring the ship's captain to produce Somerset, and asking the court to determine whether his imprisonment was lawful.
Typically for the period, the actual text of the judgment was not published, other than being read out during the hearing, and has not survived; it is only known through third-party reports. 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Lord Mansfield found that to the extent that the laws of England and Wales had ever permitted slavery, those laws were superseded by later law or were otherwise defunct. This absence of a current English statute ("positive law") 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. Scholars have disagreed over precisely what legal precedent the Somerset case set.
Facts
James Somerset, an enslaved African, was purchased by Charles Stewart (or Steuart), 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 (under Captain John Knowles), 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 (who, according to Lord Mansfield's later judgment in the case, numbered 14,000 or 15,000).
Legal basis, and judgment
The case was commenced by a writ of habeas corpus, a writ that had been described by William Blackstone as "great and efficacious ... in all manner of illegal confinement". Such a writ requires the defendant to produce their prisoner before the court, and to show cause why the imprisonment is lawful.
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":
Easter Term, May 14, 1772.
... Mr. Stewart advances no claim on contract; he rests his whole demand on a right to the negro as slave, and mentions the purpose of detainure to be the sending of him over to be sold in Jamaica. If the parties will have judgment, fiat justitia, ruat cælum, let justice be done whatever be the consequence. £50 a head may not be a high price; then a loss follows to the proprietors of above £700,000 sterling. How would the law stand with respect to their settlement; their wages? How many actions for any slight coercion by the master? We cannot in any of these points direct the law; the law must rule us. In these particulars, it may be matter of weighty consideration, what provisions are made or set by law. Mr. Stewart may end the question, by discharging or giving freedom to the negro.
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 (this version, with modern paragraphing, is transcribed from a letter to the General Evening Post, reporting on the trial).
Trinity Term, June 22, 1772.
We pay due attention to the opinion of Sir Philip York and Mr. Talbot in the year 1729, by which they pledged themselves to the British planters for the legal consequences of bringing slaves into this kingdom, or their being baptized; which opinion was repeated and recognized by Lord Hardwicke, sitting as Chancellor on the 19th of October, 1749, to the following effect: he said, that trover would lay for a negro slave; that a notion prevailed, that if a slave came into England, or became a Christian, he thereby became emancipated; but there was no foundation in law for such a notion; that when he and Lord Talbot were Attorney and Solicitor General, this notion of a slave becoming free by being baptized prevailed so strongly, that the planters industriously prevented their becoming Christians; upon which their opinion was taken, and upon their best consideration they were both clearly of opinion, that a slave did not in the least alter his situation or state toward his master or owner, either by being christened, or coming to England; that though the statute of Charles II had abolished tenure so far, that no man could be a villein regerdane [sic; scribal error: read regardant], yet if he would acknowledge himself a villein engrossed in any Court of Record, he knew of no way by which he could be entitled to his freedom without the consent of his master.
We feel the force of the inconveniences and consequences that will follow the decision of this question. Yet all of us are so clearly of one opinion upon the only question before us, that we think we ought to give judgment, without adjourning the matter to be argued before all the Judges, as usual in the Habeas Corpus, and as we at first intimated an intention of doing in this case. The only question then is, Is the cause returned sufficient for the remanding him? If not, he must be discharged.
The cause returned is, the slave absented himself, and departed from his master's service, and refused to return and serve him during his stay in England; whereupon, by his master's orders, he was put on board the ship by force, and there detained in secure custody, to be carried out of the kingdom and sold. So high an act of dominion must derive its authority, if any such it has, from the law of the kingdom where executed. A foreigner cannot be imprisoned here on the authority of any law existing in his own country: the power of a master over his servant is different in all countries, more or less limited or extensive; the exercise of it therefore must always be regulated by the laws of the place where exercised.
The state of slavery is of such a nature, that it is incapable of now being introduced by Courts of Justice upon mere reasoning or inferences from any principles, natural or political; it must take its rise from positive law; the origin of it can in no country or age be traced back to any other source: immemorial usage preserves the memory of positive law long after all traces of the occasion; reason, authority, and time of its introduction are lost; and in a case so odious as the condition of slaves must be taken strictly, the power claimed by this return was never in use here; no master ever was allowed here to take a slave by force to be sold abroad because he had deserted from his service, or for any other reason whatever; we cannot say the cause set forth by this return is allowed or approved of by the laws of this kingdom, therefore the black must be discharged.
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 (R v Inhabitants of Thames Ditton (1785)), 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?" Benjamin Franklin, who was visiting England at the time, was less impressed with the celebrations of British abolitionists over the case, criticising their celebrations,
O Pharisaical Britain! to pride thyself in setting free a single Slave that happens to land on thy coasts, while thy Merchants in all thy ports are encouraged by thy laws to continue a commerce whereby so many hundreds of thousands are dragged into a slavery that can scarce be said to end with their lives, since it is entailed on their posterity!
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."