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Nothing But Liberty: Somerset's Case and the British Empire

Published online by Cambridge University Press:  18 August 2010

Daniel J. Hulsebosch
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Extract

George Van Cleve places Somerset's Case squarely in the middle of Britain's imperial history. It belongs there. After clarifying the “narrow” holding in the case—that Charles Stewart could not forcibly remove James Somerset from England—Van Cleve argues that Chief Justice Mansfield and his Court of King's Bench “creat[ed] a new legal framework for slavery” and “did so quite knowingly at the price of undercutting the legal, economic and moral basis of slavery as an institution throughout the Atlantic Empire.” This argument that Somerset's Case transformed slavery law throughout the British Empire rests on three claims. First, Van Cleve views Somerset's Case as an imperial conflict of laws case because it involved a conflict between the laws of two royal territories, England and Virginia. Second, Van Cleve contends that Mansfield intended the decision and his remarks accompanying it about the positive law foundation of slavery to have abolitionist effects. Finally, these two points are related: Mansfield drew a distinction “between English and colonial law on slavery” in order to undermine slavery across the empire.

Type
Forum: Comment
Information
Law and History Review , Volume 24 , Issue 3 , Fall 2006 , pp. 647 - 658
Copyright
Copyright © the Board of Trustees of the University of Illinois 2006

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References

1. cleve, George Van, “Somerset's Case and Its antecedents in Imperial Perspective,” Law and History Review 24 (2006), 645.CrossRefGoogle Scholar

2. Ibid, 644.

3. Brown, Christopher L. argues similarly that the issue in Somerset's Case was “not only whether africans in England could be slaves but also whether England would remain English and free.” Brown, , Moral Capital: Foundations of British Abolitionism (Chapel Hill: University of North carolina Press, 2006), 97.Google Scholar

4. For political “slavery,” see Bailyn, Bernard, The Ideological Origins of the American Revolution (Cambridge: Belknap Press of Harvard University Press, 1967), 232–34Google Scholar; Davis, David B., The Problem of Slavery in the Age of Revolution, 1770–1823 (Ithaca: cornell University Press, 1975), 377Google Scholar, 402, 453. I agree with Eliga H. Gould's observation that Mansfield sought to “insulate” England from a colonial “contagion,” but a conflict-of-laws analysis demonstrates that the problem facing British legal thinkers was more complicated than a conflict between separate zones of law and violence. cf. Gould, , “Zones of Law, Zones of Violence: The Legal Geography of the British atlantic, circa 1772,” William and Mary Quarterly, 3d ser., 60 (2003): 471–510CrossRefGoogle Scholar.

5. There are studies of Privy council review of colonial legislation and judicial decisions against the standard of “repugnancy” to the laws of England. see Bilder, Mary s., The Transatlantic Constitution: Colonial Legal Culture and the Empire (Cambridge: Harvard University Press, 2004)Google Scholar; smith, Joseph H., Appeals to the Privy Council from the American Plantations (New York: Columbia University Press, 1950)Google Scholar; Russell, Elmer B., The Review of American Colonial Legislation by the King in Council (1915; New York: octagon Books, 1976)Google Scholar; schlesinger, Arthur M., “Colonial appeals to the Privy council,” olitical Science Quarterly 28 (1913): 279–97CrossRefGoogle Scholar, 433–50. The Privy council never used this power to adjudge slavery “repugnant” to English law. 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, 112–13CrossRefGoogle Scholar.

6. Cleve, Van, “Somerset's Case,” 623.Google Scholar

7. Ibid., 614.

8. Even then the fiction functioned only to give the court jurisdiction; the substantive law remained foreign or colonial law. see, e.g., Fabrigas v. Mostyn, 20 state Trials 81, 98 Eng. Rep. 1021 (Exchequer chamber, 1774). see also Campbell v. Hall, 20 state Trials 239, 98 Eng. Rep. 1045 (K.B. 1774) (cases arising in Minorca and Grenada stipulated as arising in London). For the Bill of Middlesex, see Baker, J. H., An Introduction to English Legal History, 4th ed. (London: Butterworths Lexis Nexis, 2002), 42Google Scholar.

9. At least not until the nineteenth century. see Burge, William, Commentaries on Colonial and Foreign Laws Generally, and in Their Conflict with Each Other, and the Law of England (London, 1836)Google Scholar.

10. Somerset v. Stewart, 20 State Trials, 2, 60 ( K.B. 1772) (citing Huber). cf. Watson, Alan, Joseph Story and the Comity of Errors: A Case Study in the Conflict of Laws (Athens: University of Georgia Press, 1992), 67–70Google Scholar.

11. Somerset v. Steward, 98 Eng. Rep. 499, 504 (K.B. 1772).

12. 98 Eng. Rep., at 510.

13. cleve, Van, “Somerset's Case,” 638Google Scholar(stating that “this holding…deliberately applied both to England and to its colonies”).

14. Thus, , Campbell v. Hall, 20Google Scholarstate Trials 239, 98 Eng. Rep. 1045 (K.B. 1774), does not stand for the proposition that the common law courts had jurisdiction, or that the common law operated, in overseas colonies. see above, note 8. cf. Cleve, Van, “Somerset's Case,” 641Google Scholar, 605 n. 13.

15. see Oldham, James, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century (Chapel Hill: University of North carolina Press, 1992), 2:1230Google Scholar; Davis, , Slavery in the Age of Revolution, 478Google Scholar. Mansfield derived these categories of civilized law and municipal law from the law of nations, which he argued was part of the common law.

16. see story, Joseph, Commentaries on the Conflict of Laws, 5th ed. (Boston, 1857)Google Scholar, 162 n. (concluding that slavery had “crept in” by “universal custom, prevailing through the European colonies, in the West Indies, and on the continent of america, and which was fostered and encouraged by the commercial policy of the parent state”).

17. The continuation of servitude followed from the limited decision itself. Mansfield clarified this holding a decade later. cleve, Van, “Somerset's Case,” 635–36Google Scholar; oldham, , Mansfield Manuscripts, 2:1236Google Scholar.

18. Mansfield distinguished the French case from this one: there, “France was not bound to judge by the municipal law of spain; nor was to take cognizance of those offences supposed against that law” (98 Eng. Rep., at 502). Here, by contrast, there was a closer relationship between the laws of England and those of the colonies.

19. He used the example of a slave leaving Virginia to “the adjacent country, where there are no slaves, if change to a place of contrary custom was sufficient,” and implied that this was not sufficient. 98 Eng. Rep., at 504.

20. Ibid.

21. Ibid.

22. On imperial master-servant law, compare Hay, Douglas and craven, Paul, Introduction to 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), 54–58Google Scholar, with Davis, , Slavery in the Age of Revolution, 478Google Scholar.

23. see Bush, Jonathan, “The British constitution and the creation of american slavery,” in Slavery and the Law, ed. Finkelman, Paul (Madison, Wisc.: Madison House, 1997), 379–418Google Scholar(arguing that the “conquest doctrine allowed all the colonies a private space in which planters and merchants could deploy slave labor with little oversight from England”).

24. Fiddes, Edward, “Lord Mansfield and the sommersett case,” Law Quarterly Review 50 (1934): 499, 501–2.Google Scholar

25. chalmers, George, comp., Opinions of Eminent Lawyers on Various Points of English Jurisprudence (Burlington, Vt., 1858), 206–07Google Scholar. Yorke co-authored one of these opinions, too.

26. For the latter, see Craw v. Ramsey, 174 Eng. Rep. 1072 (K.B. 1670) (refusing to recognize Irish naturalization in England).

27. see andrew o'shaughnessy, J., An Empire Divided: The American Revolution and the British Caribbean (Philadelphia, 2000), 3–33Google Scholar(quotation at 15).

28. see, e.g., Smith, , Appeals to the Privy Council, 576–77Google Scholar(examining the Privy council's treatment of partible inheritance statutes).

29. 98 Eng. Rep. 499 (Hargrave).

30. Granville sharp, the abolitionist behind the somerset litigation, warned that if private interests succeeded in obtaining public protection for their claims of human property, no poor Englishmen would be safe. 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), 90–91, 110, 132–34Google Scholar.

31. Wiecek, , “Somerset,” 88.Google Scholar

32. see Armitage, David, The Ideological Origins of the British Empire (Cambridge: Cambridge University Press, 2000), 125–45.CrossRefGoogle Scholar

33. 98 Eng. Rep., at 500 (Hargrave).

34. 98 Eng. Rep., at 502 (Alleyne).

35. cf. Foner, Eric, Nothing But Freedom: Emancipation and Its Legacy (Baton Rouge: Louisiana state University Press, 1983Google Scholar) (exploring the ambiguities of emancipation in post-slavery societies).

36. cleve, Van, “Somerset's Case,” 636.Google Scholar

37. Which is not to say that emancipation brought full legal liberty. see, e.g., Turner, Mary, “The British caribbean, 1823–1838: The Transition from slave to Free Legal status,” in Masters, Servants and Magistrates, ed. Hay, and craven, , 303–22.Google Scholar

38. see Paley, Ruth, “After Somerset: Mansfield, slavery and the Law in England, 1772- 1830,” in Law, Crime and English Society, 1660–1830, ed. Landau, Norma (New York: Cambridge University Press, 2002), 184.Google Scholar

39. Oldham, , Mansfield Manuscripts, 2:1222.Google Scholar

40. cf. coupland, Reginald, The American Revolution and the British Empire (London: Longmans, Green and co., 1930), 209–14Google Scholar(arguing that the Revolution deprived the West Indians of their North american allies in the battle against abolition).