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Tianxiang Xiong

Prof. Philip Stern

History 104

25 March 2010

The Somerset Trial and Its Historical Context

The Spanish grant of asiento in 1713 to Great Britain allowed the latter to supply an

unlimited number of slaves to the Spanish colonies of the New World during a thirty-year period,

resulting in a lucrative trade that would not end until the passage of the Slave Trade Act of 1807.

Slavery in Britain and its colonies (with the notable exception of British East India) would not be

abolished until 1833, with the passage of the Slavery Abolition Act. The shift away from slavery,

therefore, was a gradual process, with much of the significant progress made through lawsuits.

To understand the long road towards abolition, we must first understand the positions of anti-

slavery advocates and their impacts, as well as the historical context in which they labored.

One of the most important cases challenging slavery was the landmark R v Knowles, ex parte

Somerset1 case of 1771. This case was so groundbreaking for its time that it has been called the

“most famous decision in English law”2; therefore, it will be the main focus of this analysis. The

case was filed by friends and advocates3 of one James Somerset, a slave purchased in the

Virginia colony by Charles Stewart, an English customs officer, and later brought to England in

1769. In 1771 Somerset escaped, was recaptured, and was handed to Captain John Knowles of

the Ann and Mary, to be held on the ship until it reached Jamaica, where Somerset was to be sold.

1
Irregular spellings have been standardized, i.e. Somersett to Somerset, Steuart to Stewart, etc. in accordance with
modern documents.
2
Alan Watson, "Lord Mansfield; Judicial Integrity or Its Lack; Somerset’s Case," Scholarly Works, 20 (2006): 225
3
Henceforth, the collection of legal counsels of Somerset will be referred to as “the prosecutor.
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The case was heard by Lord Mansfield of the Court of King’s Bench after a writ of habeas

corpus was granted.

The prosecutor’s argument appeals strongly to history for justification against Somerset

being retained as a slave, making it especially attractive for our purpose of establishing context

for the anti-slavery movement. It contains a survey of slavery from ancient times to

contemporary Britain, in both England and Scotland, and argues that the sort of slavery practiced

in the colonies was not tenable under British law. The “slavery” in question is carefully defined

as being characterized by perpetual service, absolute power of the master (except over the slave’s

life and limb), and descent “from parent to child, with all its severe appendages”4. The basis of

the case, the prosecutor charges, is the question of whether Britain will allow this type of slavery,

never before condoned in Britain, to be “imported” from the colonies and foreign countries.

The type of slavery described above is referred to as “domestic slavery”5, which was

prevalent in ancient Greece and Rome but extinct in Britain by the Middle Ages. It is

distinguished from the Britain’s “ancient villenage”6, in which the “slaves” are serfs bound by

“blood and tenure”7, i.e. by descent and service, to their lords. The latter system was established

during the wars for the British Isles between the Anglo-Saxons, Danes, and Normans during the

Dark and Early Middle Ages. The prosecutor argues that a newer system of bound servitude, or

the revival of domestic slavery, could not be justified during Somerset’s time because ancient

villenage “sprung up amongst our ancestors in the early and barbarous state of society…more

humane customs and wiser opinions prevailed…”8. Thus, the prosecutor argued, at the time of

the Somerset trial domestic slavery should no longer be recognized. Ancient villenage, the only

4
Francis Hargrave, “An Argument in the Case of James Sommersett, a Negro”. British Library (1774): 11
5
Ibid., pg. 15
6
Ibid., pg. 18
7
Ibid.
8
Ibid., pg. 42
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form of bound servitude treated by law, was already in steep decline due to the difficulty of

proving that someone was a serf. The burden of proof rested on the claimant, and in any case the

legal process greatly favored the accused. Thus “the memory of slavery expired now furnishes

one of the chief obstacles to the introduction of slavery attempted to be revived.”9. Since

Somerset was not a serf by descent, he could not be a bound servant of any type. The laws of

Britain, the prosecutor advocates, supersedes the laws of the colonies while the trial is taking

place on the British Isles. Therefore, Somerset could not be recognized by law as a slave.

It is perhaps strange that the question of slavery here is addressed purely on the basis of

historical and legal technicalities, with little moral input aside from broad generalizations of past

barbarity vs. present civilization. To be sure, the prosecutor began his argument with a diatribe

against the evils of slavery, but this opening statement plays no great role in convincing the court

that Somerset was not a slave. Slavery was said to corrupt the morals of the master by freeing

him of restraint and of control over his passion, while endangering him through contact with a

hateful (and consequently vengeful) servant10. It was also dangerous to the state, since corrupt,

slave-owning citizens are hardly conducive to peace and order. Prominent pro-liberty and anti-

slavery authors such as John Locke were quoted in support of this theory, with Locke’s argument

that “a right to preserve life is unalienable; that freedom from arbitrary power is essential to the

exercise of that right; and therefore, that no man can by compact enslave himself”11 being the

most prominent.

The prosecutor, however, had anticipated and addressed the issue of not tackling moral

issues. He claimed that a survey of the general lawfulness of slavery was too large a project to

tackle for a court trial. Instead, he “hoped to prove slavery reprobated by the law of England as

9
Ibid., pg. 25
10
Ibid., pg. 11
11
Ibid., pg. 14
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an inconvenient thing”12, which he had clearly done by reducing it to a state of illegality. In any

case, a moral argument against slavery would not have been very convincing in this trial.

Mansfield was no radical abolitionist; he was, at best, a “politically very cautious reformer where

slavery was concerned”13. In fact, from Mansfield’s viewpoint, “[Somerset] is, and should

remain, a slave”14. The question to be decided on was not whether Somerset should be freed

from his bondage; it was whether Stewart had the right to transport his servant to a foreign nation,

which, Mansfield at last decided, he does not. This is by all means a surprising decision, given

Mansfield’s past opinions on slavery and law.

Mansfield’s decision was given through a surprisingly brief statement to the court that

cites no legal precedent, existing law, or principle15. In reality, no existing law held that the

owner could not remove Somerset from England16. To understand just how surprising this

decision was, we must first uncover Mansfield’s motives. As previously mentioned, he did not

want the case to be a statement against slavery. In fact, he did not want to decide on this case at

all, and at first exhorted Stewart to settle the business privately. The “main inconvenience” of

deciding against slavery would be great financial loss to the slave owners, which Mansfield

estimated at £700,000, or approximately 15,000 men17, which would be avoided with a private

settlement. Once he decided to take on the case, though, Mansfield made adherence to law his

first priority, boldly claiming “let justice be done, though the sky fall”18 once it was clear that the

case would proceed to trial.

12
Ibid., pg. 13
13
George van Cleve, "Mansfield’s Decision: Toward Human Freedom," Law and History Review, 24 (2006): 666
14
Watson, “Judicial Integrity”, pg. 227
15
Ibid.
16
Ibid.
17
Ibid., pg. 226
18
Ibid.
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Justice for slaves, however, was not popular. The great writers of the 18th Century,

usually champions of social reform, had mostly made peace with slavery. Though “there is not a

brick in the [Bristol] but what is cemented with the blood of a slave”19, slavery “bypassed the

literary scene”20. Adam Smith’s Theory of Moral Sentiments noted that slaves were not

productive workers, but he was scarcely sympathetic to them on moral grounds. In 1833,

William Wordsworth argued against abolition by claiming that “slavery was not the worst thing

in human nature”21, while Coleridge deplored the frequent discussion on the “rights of Negroes

who should be thankful to the providence which has placed them within reach of the means of

grace”22. Thus, it was in a general atmosphere of hostility towards abolition that Mansfield had

to make his decision.

To complicate things further, Mansfield was an adherent of the Friesian philosopher of

law, Ulrich Huber, who held that foreign laws must be valid even outside of their places of origin,

as long as they did not directly contradict local laws23. Since Somerset and Stewart were from

Virginia, and there was no British law directly barring Stewart removing Somerset from the

country, the logical decision would have been to declare Somerset and slave and leave it at that.

It is a testament to his character, then, that Mansfield did not bow to public interest and popular

pressure, or even his own opinions, in reinforcing slavery in his decision for this case. He made

the decision not in the grandiose language of liberty or civil rights, but simply on grounds that

servants should not be subject to deportation by their masters.

Though Mansfield had no intention to turn the Somerset case into a model for abolition,

he was probably quite aware that “the contagion of liberty defined as a human right would

19
D N Ghosh, "Representatiion of Slavery in English Literature," Economic and Political Weekly, 36 (2001): 3679
20
Ibid., pg. 3680
21
Ibid., pg. 3681
22
Ibid.
23
Watson, “Judicial Integrity”, pg. 227
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eventually spread…”24. His decision was certainly aided by the fact that the prosecutor’s case

was centered on the finer points of the law rather than sweeping moral arguments, allowing him

to define his decision as narrowly as possible. In the hostile environment to slave rights that 18th

Century England posed, Mansfield made a surprising decision on a case he never wished to take

on, and opened the flood gates for the anti-slavery movements to follow.

24
Van Cleve, “Toward Human Freedom”, pg. 671
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Bibliography

Cleve, George van. "Mansfield's Decision: Toward Human Freedom." Law and History Review
(University of Illinois Press for the American Society for Legal History) 24, no. 3 (Fall
2006): 665-671. [Retrived from JSTOR]

Van Cleve's article is an admiring analysis of Mansfield's decision in the Somerset case. Though
he characterizes Mansfield as a "reformer" instead of an abolitionist, van Cleve is quick to
depend Mansfield against other writers who have downplayed the importance of the case based
on the limited authority of the Court of King's Bench, the inability of common law to condemn
slavery, and the supposed acceptance by all parties at trial of slavery's legality in the colonies.
Overall, van Cleve paints Mansfield as a powerful individual who made an important decision
with lasting consequences.

Ghosh, D N. "Representations of Slavery in English Culture." Economic and Political Weekly

Ghosh's article summarizes the attitudes of 18th and 19th Century British literary personalities
towards slavery. He reveals that most authors did not pay attention to slavery, or did not perceive
it as a great evil. When bills concerning abolition were placed to votes, many authors reviled the
anti-slavery activists and expressed disdain for the slaves and their supposedly useless freedom.
The views of later generations of authors are also touched upon, but not in as much detail.

Hargrave, Francis. An Argument in the Case of James Sommersett, A Negro. Court Argument,
British Library, Boston: Eighteen Century Collections Online, 1774.

This primary source is a collection of arguments put forth by Somerset's prosecuting counsel. It
is not a transcript of the courtroom's events, but a polished, well-organized compilation of
documents and ideas. It gives an extensive survey of slavery in ancient times, medieval times,
contemporary Britain, etc., and makes several defenses against Somerset's bondage.

Watson, Alan. "Lord Mansfield; Judicial Integrity or Its Lack; Somerset's Case." Journal of
Comparative Law (Scholarly Works) 1, no. 2 (2006): 225-234. [Retrieved from Digital
Commons at University of Georgia Law School]

Alan Watson takes a rather pessimistic look at Mansfield's character, analyzing his suspension of
judicial rigor during the Somerset case. Mansfield's personal feelings towards slavery are
explored, and it is found that Mansfield has no interest in abolition, only in justice. His staunch
support of the legal axioms of Frisian legal philosopher Ulrich Huber is in stark contrast to his
decision that the laws of the colonies do not have legal force in England.