George Van Cleve

FORUM: SOMERSET'S CASE REVISITED

Somerset's Case and Its Antecedents in Imperial Perspective

James Somerset was taken from Africa as a slave to the Americas in 1749. He was sold in Virginia to Charles Steuart, a Scottish merchant and slave trader in Norfolk who served after 1765 as a high-ranking British customs official. In 1769, Steuart took Somerset with him to England.¹ After two years in England, Somerset escaped from Steuart, but was recaptured. Steuart decided to sell Somerset back into slavery in Jamaica, and, in late November 1771, Somerset was bound in chains on a ship on the Thames, the Ann and Mary, awaiting shipment.	1
Fortunately for Somerset, an ecumenical abolitionist network existed in London, operating in "close correspondence" with Pennsylvania Quakers.² At its heart was Granville Sharp, a High Church Anglican. Sharp's allies sought a writ of habeas corpus from Lord Mansfield, Chief Justice of the Court of King's Bench, to obtain Somerset's freedom. Thus began Somerset's Case, one of the most famous cases in the Anglo-American law of slavery.³	2
On June 22, 1772, Mansfield announced a decision in Somerset of about two hundred words that profoundly altered not just the English, but also ultimately the American, framework for the law of slavery.⁴ The proceedings in Somerset were reported in at least thirteen British newspapers, several widely circulated magazines, and twenty-two out of twenty-four operating North American colonial newspapers. The case then became the subject of transatlantic pamphlet wars. Somerset played out before a transatlantic audience because contemporaries thought it had implications for England and for its Atlantic colonies. Mansfield fully understood the imperial context of slavery and made his decision with that context firmly in mind. Somerset was cited as authority—or disapproved of—by English and American courts for nearly one hundred years.⁵	3
Historians have argued for decades about what Mansfield actually said in his oral decision and its effects.⁶ Today's prevailing view on the decision's narrow holding, which this article strengthens using new evidence, is that in Somerset Mansfield did not intend to emancipate slaves in England. Yet this does not mean that Somerset had no significant effect on English slavery law, and had at most a sort of moral force in rhetorically challenging slavery.⁷ Nor does it mean that Somerset had no important imperial consequences, addressing only slavery in England, while leaving colonial slavery legally intact.⁸ As this article argues, Somerset matters because Mansfield's decision deliberately transformed both the law of slavery in England and the law governing slavery in England's colonies in subtle but powerful ways. In addition, it represented the clear emergence of a new idea of freedom in English law.	4
This article has two purposes. The first is to interweave the social-historical and legal-historical understandings of slavery in modern England, placing English slavery in historical context and using a conflict of laws analysis (focused on how a slave's status changed when the slave came to England) and new case law interpretations to develop an improved understanding of the English law of slavery prior to Somerset. A conflict of laws analysis also shows that arguments over slavery in England were often also arguments about imperial governance—i.e., the relationship between English and colonial law.	5
The second purpose of this article is to offer a new "imperial" interpretation of Somerset using this improved understanding of prior law, new sources regarding Somerset, and an analysis of its imperial context. Somerset is best read not simply as a case about the legality of slavery in England, or as a conflict of laws case, but as an "imperial conflict of laws" case. These two discussions produce the following conclusions.	6
First, during the period 1540 to 1771, despite the existence of involuntary servitude, Englishmen increasingly defined themselves as free and unenslaveable, but they encountered Africans outside Africa as "almost universally enslaved or ... in conditions of extreme subordination."⁹ English law complemented this cultural understanding of the disparity between English and nonEnglish status, particularly for Africans, because it recognized "slavish servitude" for slaves, usually blacks, who came to England, an intermediate "near slavery" legal status between "classical chattel slavery,"¹⁰ on the one hand, and full "emancipation"¹¹ on the other. Thus, the dominant view of the status of slaves in England during this period rejected two polar positions, classical chattel slavery and full emancipation on arrival in a "free" jurisdiction.	7
A conflict of laws analysis of English slavery law shows that courts prior to Somerset generally agreed that English law governed status, but also limited slavery, for slaves who came to England. Legal rules developed prior to Somerset created "slavish servitude" or "near slavery" for such slaves by: (i) rejecting the slave's status under foreign law as a basis for slavery in England; (ii) preserving powerful economic and physical control by masters over slaves who came to England; but (iii) nevertheless prohibiting masters from inflicting unlimited brutal punishment with impunity. English "near slavery" shared many characteristics with chattel slavery, but limited permissible physical brutality toward slaves and may not have been heritable. It resembled English indentured servitude if one conceives of that status as including an involuntary, alienable, perpetual form.	8
Second, in light of the law of slavery in England prior to Somerset there was little chance that Lord Mansfield would hold in Somerset that English common law permitted chattel slavery in England. Lord Mansfield's conflict of laws analysis, his rejection of chattel slavery, and his continuation of "near slavery" in Somerset were relatively predictable under earlier law and would not have made Mansfield's judgment historic.	9
Third, Lord Mansfield's decision that positive law, not common law, must authorize slavery both in England and in its colonies, as opposed to deciding Somerset under English common law and limiting its holding to slavery in England only, was a transformative decision. Mansfield's positive law holding was legally novel, unnecessary to Mansfield's substantive holding in Somerset, seemingly supportive of the status quo, and yet deliberately subversive of both metropolitan and colonial slavery. This article contends that Mansfield's holding had both domestic and imperial political motives, but reflected Mansfield's beliefs as well. As to English domestic politics, Mansfield's holding was an effort to eliminate slavery litigation in the English courts and to commit the slavery issue to Parliament. As to imperial politics, Mansfield's positive law holding avoided a difficult imperial governance problem, but did so by exacting a substantial price from colonial slaveholders.	10
To appreciate fully the implications of the positive law aspect of Mansfield's decision, its imperial context must be understood. For the better part of a century, England had engaged in disputes with its Atlantic colonies about whether, and to what extent, English law applied in them, disputes over the "transatlantic constitution" that deepened during the 1760s and "remained up to the eve of the Revolution."¹² Moreover, before Somerset English courts thought that since slaves were a form of property, slavery was based on common law principles. But there was a fundamental uncertainty underlying the colonial law of slavery—was colonial slavery established (or governed) by English statutes, by the Crown prerogative (or derivative colonial laws subject to limits on repugnancy to English law), by English common law (which arguably limited the Crown prerogative), or by some combination of these authorities? This uncertainty about colonial slavery was an important aspect of the larger uncertainty about the transatlantic constitution.¹³	11
Two major eighteenth-century English judges, Chief Justice Holt and Lord Chancellor Hardwicke, had differed sharply on whether the common law of slavery in England was independent from the law of slavery in the colonies, and Blackstone had addressed that issue shortly before Mansfield reluctantly faced it in Somerset.¹⁴ By 1772, this dispute had become a hotly contested aspect of the broader issue of metropolitan-colonial governance. Slavery, and particularly the slave trade, were increasingly controversial in England and North America, a political reality that Mansfield had to balance against Britain's interest in the benefits of the trade and the allegiance of certain colonies that depended heavily on it, particularly the West Indies. To reconcile these conflicting interests, Mansfield avoided the issue of the relationship between English common law and colonial law on slavery by characterizing slavery as arising from positive law.	12
Mansfield's positive law holding politically benefited the West Indies and the southern North American colonies in the short run. In what was only a seeming paradox, however, Mansfield's holding also deliberately devalued colonial slave property, handing slaveowners a "poisoned chalice." This article posits that Mansfield was well aware that this holding would have a series of adverse legal, political, and economic consequences for colonial slavery.	13
Mansfield's transformation of the conceptual basis of slavery in English law was important for another reason: it represented the clear emergence in English law of a new English idea of freedom. This new idea of freedom was that in England, core legal freedoms such as access to the courts and protection from arbitrary, unlimited physical abuse, were available to all subjects as "rights of man," not dependent upon birth, race, religion, or free status, and could only be denied by statute or express, longstanding custom.	14
The first part of this article discusses the social conditions and the judicially sanctioned legal status of black "near slaves" in England prior to Somerset. It considers the significance of the popular myth that coming to England emancipated slaves and of England's legal conception of slaves in the slave trade. It then reinterprets the case law on slavery prior to Somerset and relates it to social conditions and imperial governance. The second part of this article analyzes Somerset. It reconstructs key arguments and the judgment in Somerset using new materials, such as recently discovered newspaper reports and a new report of a key subsequent case, R. v. Inhabitants of Thames Ditton. This part of the article then analyzes Lord Mansfield's judgment and its imperial political and legal context. It concludes by discussing the decision's effects on slavery in England and in the colonies.	15

I. Slavery in England and the Law, 1540–1771
This part considers the social and legal history of slavery in England in the two centuries prior to Somerset. It shows that black involuntary servitude, in particular, did not fit well within contemporary concepts of slavery or "service." In dealing with slaves who came to England, English society and the law avoided the extremes: the law did not emancipate such slaves, but neither did it continue their prior status as chattel slaves. Instead, such involuntary immigrants became "slavish servants," that is, "near slaves" with a legal position somewhat akin to that of involuntary, alienable perpetual indentured servants.¹⁵	16

The Rise of the Culture of "Near Slavery" in England
A substantial part of all labor performed in sixteenth- and seventeenth-century England was coerced or "unfree" labor. Substantial physical force and imprisonment could be used to compel performance, and in many cases no wages were paid for service.¹⁶ However, seventeenth-century Englishmen never imposed slave "status on members of their own community."¹⁷ As a sense of distinctively English identity developed during this period, Englishmen increasingly came to view themselves as free and unenslaveable by virtue of their English birth and "race."¹⁸ Yet by 1600, English culture had not necessarily rejected socially "redemptive" human bondage for Englishmen and would have accepted enslavement or cognate involuntary servitude of Africans, among others.¹⁹	17
One distinctive aspect of coerced labor in England was the rise of black involuntary servitude there during the late sixteenth through the eighteenth centuries.²⁰ English black "near slavery" was largely a result of the English slave trade and was a comparatively minor, though significant, social phenomenon.²¹ Recent accounts emphasize that the black experience in England was not monolithic: in the Tudor era, there were at least some English blacks who were not "slaves or servants," while later blacks who lived in England served as "slaves, servants, drudges and entertainers."²² Surveying the black experience in England in the eighteenth century, Bush concluded that most blacks there were "neither clearly slave nor clearly free.... "²³	18
Many aspects of black servitude in England were consistent with the cultural attitudes and coerced labor conditions in English society at the time, as described by writers such as Steinfeld and Guasco. But other aspects of black servitude did not fit well within then-current legal models for slavery or involuntary servitude, and it appears to have had distinctive cultural features.²⁴ The available evidence suggests that black involuntary servitude in England was neither classical chattel slavery, nor socially "redemptive" slavery, but was instead "slavish servitude" or "near slavery," a status considerably more onerous than English indentured servitude as Steinfeld described it.	19
There is little if any evidence that classical chattel slavery existed in England during the period 1540–1771: there were no statutes that permitted or endorsed such slavery in England based on status or race, ²⁵ and there was no reported English case that unequivocally endorsed heritable, perpetual chattel slavery in England based on status or race.²⁶ But the social reality was that, during most of those same two centuries, a form of "near slavery," mostly involving blacks, with many incidents of chattel slavery, such as sales, imprisonment or forcible shipment abroad for discipline²⁷ or punishment, collaring, chaining,²⁸ and wageless compelled perpetual service, did exist in England.²⁹ Although the evidence is limited, it appears that the major distinction between colonial chattel slavery and such English "near slavery" was that under chattel slavery, the use of considerably more brutal physical force against slaves, including dismemberment and extremely severe whippings (sometimes called "scourgings"), was permitted as compared to the limited, though substantial force that would probably have been legally permissible against "near slaves" in England at the time.³⁰ It is also unclear whether English "near slavery" was deemed a heritable status, while chattel slavery was heritable.	20
By the close of the English Civil War, black slavery "was becoming common" in England, and blacks were regarded as "'purchaseable commodit[ies].'"³¹ For example, Samuel Pepys's Navy Board colleagues brought black slaves back to England in the 1650s, and Pepys himself later owned and sold slaves.³² Beginning in the second half of the seventeenth century there were newspaper "hue and cry" advertisements to sell or recover slaves in England.³³ An advertisement from The London Gazette of March 1685, for example, sought return of a "black boy" who wore an unremoveable silver neck collar engraved with his owner's "coat-of-arms and cipher."³⁴ English artisans made a "thriving living" from such collars, advertised in one case as being "silver padlocks for Blacks or Dogs.... "³⁵	21
Slave markets where "black men, women and children were sold ... " existed in Liverpool, Bristol, Glasgow and London,³⁶ though such markets were comparatively small and the length of time for which they existed during the seventeenth and eighteenth centuries is uncertain. English slave sales continued at least through the time of Somerset.³⁷ The private use of limited, but substantial force against slaves also continued until the time of Somerset. A slaveowner used force against a nine-year-old slave girl during a London church service in 1760 to prevent her baptism.³⁸ Granville Sharp became involved in abolitionism in 1765 after he nursed back to health a slave, Jonathan Strong, who had been beaten nearly to death by his owner, David Lisle, who was not prosecuted.³⁹	22
Historians have estimated that somewhere between three thousand and fifteen thousand blacks lived in England by 1772, a significant fraction of them in perpetual involuntary servitude as slaves or, as suggested here, "near slaves," though the data are open to interpretation.⁴⁰	23

England as Emancipator and Slave Trader
Despite the social reality of "near slavery" in England through the time of Somerset, England had an apparently contradictory and longstanding popular tradition that a slave's coming to England by itself resulted in the slave's emancipation. Yet English law also permitted English citizens, living in England, to participate in every aspect of the Atlantic slave trade. This section discusses England's roles as "emancipator" and "slave trader" and then shows how the law reconciled these apparently contradictory social practices and beliefs by creating "near slavery" for slaves brought to England.	24
England as emancipator. By 1600, villeinage was nearly extinct.⁴¹ One question this raised was whether English law would free slaves who came to England. Steinfeld described the growth of an English tradition celebrating English freedom and condemning villeinage and slavery.⁴² In his widely circulated Description of England, for example, in 1577 William Harrison asserted that England emancipated slaves who came there: "all note of servile bondage is utterly removed from them."⁴³	25
The claim that England emancipated imported slaves was repeated in later centuries. Despite the fact that at least one very knowledgeable contemporary of Harrison's did not endorse his position,⁴⁴ a series of seventeenth- and early eighteenth-century commentators echoed Harrison, but generally with the important qualification that such emancipation did not eliminate obligations to provide "ordinary service."⁴⁵ As discussed below, in the case of imported slaves, this service obligation often meant perpetual, alienable involuntary servitude.	26
In the first edition of his Commentaries, Blackstone asserted that under the common law slaves were emancipated upon coming to England.⁴⁶ Blackstone later modified his text on this point, some claim under pressure from Lord Mansfield, others claim for editorial consistency.⁴⁷ Blackstone also asserted that the North American colonies were not English settlements but instead conquests, so that they were not governed by English common law, but by the royal prerogative.⁴⁸ For Blackstone, the law on slavery in England was independent of the law on slavery in the colonies.	27
England as slave trader. Between 1650 and 1787, Parliament and the Crown provided unbroken support for the English slave trade. During the eighteenth century, English traders transported approximately 3 million slaves from Africa to the Americas.⁴⁹ English citizens, while living in England, were permitted to participate in every aspect of the trade. During the period 1600–1750 blacks were treated as a form of property in a variety of English transactions stemming from the slave trade. The Crown legal position from 1677 onward was that blacks were goods under the Navigation Acts,⁵⁰ a position endorsed by Chief Justice Holt and the major judges of England in a 1689 formal opinion.⁵¹ In 1698, Parliament exempted only "negroes" from import duties on "all Goods and Merchandize" coming to England or the colonies.⁵² English contracts and insurance agreements stemming from the slave trade also rested on the premise that blacks were goods.⁵³ In 1732, Parliament legislatively classified slaves as a preferred, hybrid, form of property to induce and protect English investment in the slave trade.⁵⁴	28
It is a fair inference that in the late seventeenth and early eighteenth centuries no one of influence in England thought that treating black slaves in the colonies as property was inconsistent with English common law. The case law discussed below suggests that this was because English law often accepted explicitly or implicitly the idea that blacks could be property in England as well, though why—and to what extent—this was so, and the relation between English and colonial law, were matters of dispute.	29

The Law of Slaves in England, 1540–1771
Against the social reality of "near slavery" in England and the seemingly contradictory popular belief that English law emancipated slaves who came to England, what did the law have to say about slavery in England?⁵⁵ Earlier studies of the law of slaves in England before Somerset concluded that the law was in "hopeless disagreement," "a confusing state of disarray," or "unsettled."⁵⁶ But the perceived confusion in the law resulted largely from the question generally asked: was "slavery" in England "legal"? If instead one asks questions stemming from a conflict of laws perspective, the law of slavery in England between 1540 and 1770 appears considerably less confused. These questions include: What did "slavery" mean in England during this period? What law governed the status of a slave who came to England? If enslavement ended when a slave came to England, did this necessarily result in the slave's full emancipation? The answers follow.	30
Most courts and legal authorities during this period were in broad agreement that: first, the common law did not recognize classical chattel slavery in England; second, the status of slaves who came to England was governed by English law; third, slaves who came to England were no longer subject to chattel slavery, but were not fully emancipated; they were held to a lesser but substantial form of "slavish servitude" that constituted "near slavery."	31
Case law on slaves, 1569–1689. No statute enacted between 1540 and 1780 spoke directly to the legal status of slaves brought to England, so the fate of slaves there was left to the courts and the common law.⁵⁷	32
Cartwright's Case, apparently decided circa 1569, might support the position that slaves who came to England were emancipated. In Cartwright, a court was reported to have said, in sustaining a challenge to a slaveowner's desire to "scourge" a Russian slave brought to England, that "England was too pure an air for Slaves to breath [sic] in."⁵⁸ When it first appeared in later law, however, Cartwright was regarded as establishing limits on punishment of slaves in England, not as providing emancipation.⁵⁹ Thus, the emancipation tradition discussed above actually meant limits on owners' rights to brutalize slaves, not the elimination of "near slavery," a view confirmed by the late seventeenth-century and eighteenth-century case law.⁶⁰	33
A well-known series of slavery cases occurred between 1677–1706. Although, as past writers have noted, these cases sharply disagree on whether slaves brought to England could be a form of common law property, it is equally important to understand where they agree with each other. In particular, it is important to understand what the cases say about chattel slavery, emancipation, and governing law, as well as what legal/economic rules control slaves in England.	34
The earliest reported English case on the legal status of slaves in England (after Cartwright's Case) was Butts v. Penny.⁶¹ In Butts, a claimant to co-ownership of slaves brought trover for "10 negroes and a halfe.... " The court held that an action of trover would lie.⁶² The Levinz and Keble reports of Butts stated that treating "negroes" as goods under English law was acceptable because merchants treated them as goods, which in turn was acceptable because "negroes" were infidels. Butts apparently rejected the contention that under English law no one could have greater property rights in a man than a lord had over his villein. Yet under the decision's reasoning, slavery in England could not have been classical chattel slavery, heritable, or permanent, because baptism would enfranchise slaves.⁶³ Moreover, the court's reasoning could readily have been applied to slavery in all English colonies.⁶⁴ Thus, instead of approving chattel slavery in England, Butts created an uncertain legal climate for colonial slaveholders and English investors.⁶⁵	35
Butts was an influential view of the law on slaves at the time. Courts and counsel relied on it through the mid-1690s, and it was cited by counsel as useful, though questioned, authority as late as 1721 in argument before all the major judges of England.⁶⁶ Another 1677 trover case, Lowe v. Elton, reached the same result and employed the same religious rationale.⁶⁷Butts was also consistent with a 1694 trover decision by the Court of Common Pleas in Gelly v. Cleve.⁶⁸Butts was also cited as authority for the proposition that trover would lie for a "Negro" in 1746 by Viner's Abridgement; Chief Justice Holt's decisions, discussed below, rejecting Butts were treated as a dissenting view.⁶⁹ In the eighteenth century, the property principle of Butts was followed in an influential, widely circulated Opinion of the Law Officers and in Pearne v. Lisle, both discussed below.	36
The law of slaves in England, 1690–1771. Between 1696 and 1706, in a series of cases contrary to Butts v. Penny, Chief Justice Holt held that men in England could not be chattels under English law.⁷⁰ Although it was (and is) widely believed that Holt also declared that slaves were emancipated by coming to England, this misreads Holt's (or at least his court's) actual position. In a series of decisions, the Court of King's Bench under Holt provided relatively strong legal protection to owners for their property in what it deemed "slavish servants" when they came to England, rather than emancipating them.⁷¹	37
In 1696, Holt decided his first major slave case, Chamberlaine v. Harvey.⁷²Chamberlaine was an action of trespass de bonis asportatis seeking damages for the loss of value and services of a slave brought to England from Barbados.⁷³Chamberlaine held that trespass would not lie for the taking away of the slave but only a "special" action of trespass per quod servitium amisit.⁷⁴ Under English law, a "negro cannot be demanded as a chattel."⁷⁵ The court refused to base the slave's status in England on Barbados law.	38
Equally importantly, the court did not declare the slave emancipated. Instead, it provided masters of what it termed "slavish servants" with a trespass claim against parties who deprived them of the service of such servants.⁷⁶ The court did not explain why any master of a slave imported to England would have such a claim unless involuntary servitude continued in England, but why did involuntary servitude continue if slavery did not? The court's judgment thus appears to have been a compromise.	39
Carthew's report said that the court held that a master could not recover either for the "value" of a servant or for "damages done to his servant," but only for the "loss of his service."⁷⁷ The economic impact of this rule on slaveowners was uncertain. One possible interpretation, that the rule authorized damages for the difference between the cost of a slave's services and the cost of replacement services, might have limited a master's damages when compared to recovery of "value," but such damages could still often have been substantial enough to deter third parties from hiring "slavish servants" away without an owner's consent, thus maintaining involuntary servitude. If the rule had been read to limit damages merely to costs resulting from disruption of service until a replacement servant was hired, it would have rendered many masters unable to keep slaves in England, since the damages available would have been trivial in comparison to the master's economic loss. Even viewed most favorably to slaveowners, the Chamberlaine court made importation of slaves into England more costly, and limited owners' power over them, without declaring the slaves emancipated. A few years later, slaveowners' economic control was markedly strengthened in Smith v. Gould.	40
Early in the reign of Queen Anne, in Smith v. Browne and Cooper, Holt held that it was not possible in England to bring an action of indebitatus assumpsit for the value of a slave sold to a buyer where the sale was pleaded to be in England and the slave was pleaded to be in England.⁷⁸ But Holt then instructed the plaintiff that he should have pled that the contract occurred while the "negro" was in Virginia, because the law there was not English common law, but instead was based on the royal prerogative.⁷⁹ Use of that pleading fiction, which permitted sales of slaves when in England, weakened Holt's practical position but preserved his theoretical position that slavery per se was not recognized by English law.⁸⁰ Holt's fictional distinction between Virginia law and English law avoided a court conflict over the permissibility of slave sales in England under English law, confirmed Holt's desire to maintain the position that colonial law and English law on slavery were independent, and showed the fragility of that position.⁸¹	41
In Browne and Cooper, Holt also famously stated that "as soon as a negro comes into England, he becomes free: one may be a villein in England, but not a slave."⁸² However, it does not appear that Holt thereby endorsed the position that arrival in England meant an end to any labor servitude, though the decision can be and has often been read that way. Holt appeared to mean instead that a slave who came to England could not be treated as a "pure" chattel, and thus destroyed with impunity, but was instead like a villein, who had limited rights vis-à-vis his lord despite his servile labor and property status. This narrower reading makes Smith v. Browne and Cooper consistent with Chamberlaine and is confirmed by Smith v. Gould.	42
In Smith v. Gould, the court declined to permit a trover action for a black,⁸³ but in a significant change, the court held that an alternative action, trespass quare captivum suum cepit, would be available. It seems clear that by "slave," the court meant a servant whose master would have a right to kill or maim it with impunity (i.e., a "pure" chattel).⁸⁴Smith v. Gould substantially strengthened a slaveowner's damages position. In trespass quare captivum suum cepit, "the plaintiff might give in evidence that the party was his negro, and he bought him,"⁸⁵ contrary to what Holt had said emphatically in Chamberlaine. Justice Powell also noted that a man may sell a captive and "he remains a captive to the vendee."⁸⁶ These rules were much more favorable to slaveowners and permissive of slave transactions than the ones in Chamberlaine and Browne and Cooper. The Gould rules permitted English slaveowners to maintain indefinite economic control of their slaves and were independent of any requirement to establish villein status; yet they also rejected classical chattel slavery.	43
Legal opinion and events after Holt's decisions. In the early 1720s, the Privy Council apparently adopted the position that the governing law in a colony would depend on whether it was conquered or settled.⁸⁷ This determination meant that different colonies would have different common laws; some would not follow English common law, often thought to be the "birthright" of Englishmen.⁸⁸ Moreover, the Privy Council decision also created the risk that slavery might be unlawful in certain colonies under the Holt decisions.	44
By 1729, responding to such uncertainties and religious pressures for slave Christianization,⁸⁹ slaveowners felt the need to seek legal clarification on key points relating to slavery, which they obtained in the 1729 Yorke-Talbot slavery "Opinion."⁹⁰ That Opinion—made by the Crown's principal Law Officers at an Inn of Court—cited no authority, and provided no rationale. Yet it was written to be relied upon and was widely published.⁹¹ In summary, the Opinion held that a slave's status did not change when brought to England; that a slave could be compelled to return to the colonies; and that slave baptism did not constitute manumission.	45
The Opinion's conclusion that slave status was neither "determined nor varied" when a slave came to England, so that slaves were property throughout the empire, was profoundly new "imperial" law. On that point, the Opinion was completely at odds with the conclusions of commentators from Harrison and Molloy onward, as well as with the Holt decisions and even with Butts v. Penny, both regarding what law governed a slave's status in England and what that status was.	46
The 1732 statute that classified colonial "Negroes" (slaves) as property in debtor-creditor relations mandated uniform rules and remedies applicable to slave property throughout the empire and could have been seen as the commercial law analogue of the Opinion's conclusion that "imperial" slave property had uniform status throughout the empire.⁹² A 1732 habeas corpus proceeding, R. v. Cartor, involved a black woman alleged to be a slave, but its facts suggest that the court did not consider the woman's status.⁹³	47
In 1749, in Pearne v. Lisle,⁹⁴ Lord Chancellor Hardwicke (formerly Philip Yorke) wrote what amounted to a defense of his earlier Yorke-Talbot Opinion in a decision granting a motion to discharge a writ of ne exeat regno. Underlying Pearne was a dispute between an English resident, Pearne, and Lisle, an Antigua resident temporarily in England, related to fourteen slaves in Antigua.⁹⁵	48
To show that Antigua law would grant full relief to the plaintiff, making English litigation unnecessary and thus justifying discharge of the writ, Hardwicke decided to prove, first, that English law would grant full relief, and, second, that Antigua law—that is, colonial law on slavery—must follow English law. Accordingly, Hardwicke needed to demonstrate first that English law permitted slavery. This occasioned his defense of the Yorke-Talbot Opinion.	49
The core of Hardwicke's defense was an attack on Holt's slavery position that had fundamental implications for the relation between slavery in England and slavery in the colonies: Holt had been wrong in stating that coming to England automatically freed slaves, because, if accepted, that principle would free all colonial slaves, since all colonies were ultimately "subject to" English law⁹⁶ (a quite remarkable conclusion in view of Hardwicke's intimate familiarity with the conquest/settlement doctrine stemming from his prior Crown legal service).⁹⁷	50
Thus, England and the colonies necessarily followed one legal rule regarding slavery, which, in Hardwicke's view, was that it was lawful and slaves were property in both places. Lord Mansfield was intimately familiar with Pearne v. Lisle when he decided Somerset and, as discussed below, it was precisely because of Pearne's imperial implications that it was the major authority with which Mansfield grappled in making his decision.	51
Even had Pearne served only vigorously to reaffirm the earlier Yorke-Talbot Opinion, reaffirmance would have given that Opinion added force as precedent. Some lawyers prior to Somerset thought the 1729 Opinion represented a definitive statement of the law on slavery in England.⁹⁸	52
In Shanley v. Harvey (1762), Lord Northington LC held that any slave who came to England was emancipated, was protected by habeas corpus if unlawfully restrained, and, if a servant, had a right to sue for "ill usage" by a master.⁹⁹ Although counsel in Somerset brought Shanley to the court's attention, it played no significant part in the decision.	53
R. v. Stapylton, the last slavery case prior to Somerset, involved the attempted forcible deportation of an African slave, Thomas Lewis, by Stapylton, Lewis's purported owner.¹⁰⁰ At the 1771 trial before Lord Mansfield, Stapylton defended on the ground that because the slave was property, the acts complained of were not criminal offenses.	54
In Stapylton, Lord Mansfield permitted extensive testimony by Lewis regarding his life history as it related to Stapylton's alleged title. Mansfield said that, if the jury found that Stapylton had a property interest in Lewis, they should bring in a special verdict; if not, "you will find the Defendant Guilty."¹⁰¹ The jury found Stapylton guilty.¹⁰² After the jury verdict, Mansfield steadfastly refused to permit sanctions against Stapylton.¹⁰³	55
During the trial, Lord Mansfield said he had granted "several" writs of habeas corpus to deliver "negroes" to their masters based on property claims. Thus, as late as 1771, it appears that Lord Mansfield continued to incline to the view that slave property could legally exist in England. As others have noted, Lord Mansfield stated in Stapylton that he would presume Lewis free unless the owner proved the contrary. Mansfield did not, however, hold that a slave became free on coming to England. If Mansfield had thought that the law emancipated a slave upon her coming to England, he could have ruled Stapylton's evidence of title inadmissible.	56
Mansfield added, "whether they [masters] have this kind of property or not in England has never been solemnly determined."¹⁰⁴ It appears quite likely that by a "solemn determination" Lord Mansfield had in mind taking a special verdict and hearing argument on this before the Twelve Judges, a procedure used at that time for determining points of law in criminal cases.¹⁰⁵ No such solemn determination had ever occurred regarding slavery in England. In Stapylton, Mansfield seems initially to have been willing to create a process that could lead to such a determination.	57
However, beginning a pattern of marked ambivalence about how to approach slavery, Lord Mansfield then sought to discourage both parties from pursuing the issue. Mansfield said he would prefer not to see the ultimate issue of slave property decided in England, which suggested a strong desire to avoid the issue entirely.¹⁰⁶	58
Despite this, Mansfield went to greater lengths to raise questions about the slaveowner's claim than earlier writers have suggested.¹⁰⁷ Mansfield credited most, if not all, of Lewis's testimony, not just his testimony on the "chain of ownership" issue, and very clearly communicated his belief in Lewis's credibility to the jury.¹⁰⁸ It was predictable indeed that based on Mansfield's summing up the jury would find that Stapylton had "no property" in Lewis. In addition, Mansfield tested Stapylton's title based on his view of what English law required, sub silentio determining the slave's status under English law.	59

Conclusions
The evidence from English social history is that black slaves brought to England occupied a very subordinate servitude status as "slavish servants" or "near slaves," not fully slave, but certainly not free. The ideological basis of such "near slavery" was not "redemptive," but rested fundamentally on the view that certain groups, including Africans, were properly enslaveable, unlike Britons. The popular tradition positing slave emancipation on arrival actually represented not a tradition of emancipation but instead appears to have meant that the rights of slave property owners physically to punish slaves brought to England were limited to punishment rights also exercisable over others in servitude in England. English "near slavery" shared many characteristics with chattel slavery, but limited permissible physical brutality toward slaves and may not have been heritable, thus resembling English indentured servitude if one conceives of that status as including an involuntary, alienable, perpetual form.	60
The law on slavery in England supported these social practices. The views of the English courts on the status of slaves imported into England during the centuries prior to Somerset contained broad areas of agreement, despite differences about substantive issues such as whether an action of trover could be brought for slaves. There was no support for the view that classical chattel slavery could exist under English common law. Butts and the Holt court's decisions rejected chattel slavery, but nevertheless provided a powerful framework of economic claims available to masters that legitimized and supported "near slavery" in England in the eighteenth century, thus also rejecting full emancipation. Shanley v. Harvey was an apparent late exception favoring actual emancipation, but not a historically important one. The courts rejected a slave's status under foreign (or colonial) law as a basis for slavery in England and prohibited masters from inflicting unlimited brutal punishment on slaves in England with impunity. Such legally sanctioned "near slavery" existed in England through the time of Somerset. The term "slave" was often used to describe what were in actuality "slavish servants."	61
There were exceptions to this broad consensus in law and social practice, but it is important to appreciate precisely their significance. The Yorke-Talbot Opinion announced a uniform "imperial property" view of slavery. Pearne v. Lisle held that slavery was lawful throughout the empire because it was lawful in England, thus sharply disagreeing with Holt's conclusion in Smith v. Browne and Cooper that the common law of England on slavery, and the laws of the colonies, were independent, so that England could reject slavery while imposing it on the colonies. Blackstone initially supported Holt's position. Thus, a sharp tension in English slavery law just prior to Somerset concerned whether English and colonial slavery law were identical or independent, a tension that was at least as significant as the tension regarding the precise legal contours of "near slavery" in England.	62
The social and legal struggles over the status of slaves who came to England and the relationship of English and colonial law came to the boiling point in Somerset, confronting Lord Mansfield with the potentially politically divisive task of deciding on a transatlantic stage what the law of the empire on those issues would be.	63

II. Somerset's Case: An Imperial Perspective
This part analyzes Lord Mansfield's judgment in Somerset's Case. It begins by briefly explaining the facts, setting, and key arguments of counsel and then considers the judgment. Was Lord Mansfield's decision intended fully to emancipate slaves who came to England? This issue, the focus of much of the earlier writing about the case, is one of several discussed here.¹⁰⁹ This part also considers further questions: If slaves were not emancipated upon coming to England, what was their status after the decision? What was the significance of Lord Mansfield's inclusion in the judgment of an epigrammatic positive law ruling? It is argued here that Mansfield's positive law holding was motivated by both domestic and imperial political considerations, but also reflected his personal beliefs. The part closes with a discussion of Mansfield's intent regarding colonial slavery, arguing that Mansfield knew and intended that his decision would have serious adverse consequences for colonial slavery.	64

Factual Background and Setting
On the morning of November 28, 1771, a somewhat piqued Lord Mansfield denied a renewed motion for judgment by plaintiff in the Stapylton case.¹¹⁰ Yet, later that same day, Lord Mansfield issued a writ of habeas corpus to John Knowles, captain of the Ann and Mary, on which Somerset was "confined in irons ... ,"¹¹¹ commanding that Knowles "immediately" produce Somerset before Mansfield.¹¹²	65
The return to the writ stated the following material points.¹¹³ There were "Negro slaves" in Africa,¹¹⁴ and the slave trade with Africa was necessary to supply slaves to the colonies.¹¹⁵ By colonial law, slaves were "saleable and sold" in that trade as goods and chattels and when purchased were "slaves" and saleable "property."¹¹⁶ Somerset was "a negro ... native of Africa," brought to Virginia and sold to Charles Steuart. Steuart brought Somerset to England on business.¹¹⁷ Somerset escaped and refused to return to Steuart's service.¹¹⁸	66
Somerset was a notorious "test" case. The hearings were widely reported in English and colonial newspapers.¹¹⁹ Counsel for Somerset served without compensation.¹²⁰ The West Indian slaveholding interests controlled and financed the defense,¹²¹ presumably because they believed their interests would be damaged by a decision in favor of Somerset.	67
It would have been difficult to find a more capable group of counsel to argue Somerset.¹²² Serjeant William Davy, justly renowned as a sharp-witted and tenacious cross-examiner willing to confront Mansfield if necessary, opened and closed the arguments for Somerset. His co-counsel, the "famous radical" Serjeant John Glynn, was a Member of Parliament for Middlesex. James Mansfield (no relation to Lord Mansfield), another Somerset counsel, went on to become solicitor general and chief justice of the Court of Common Pleas. Francis Hargrave, a junior counsel, volunteered his services and made his reputation as a result.¹²³	68
Steuart's counsel were equally eminent. John Dunning had been solicitor general and was a Member of Parliament. He had been the prosecutor for the slave in the Stapylton case. Lord Mansfield thought very highly of Dunning, whom many regarded as the best lawyer of the day. James Wallace, Dunning's co-counsel, later became solicitor and attorney general.	69
Mansfield's parliamentary role as administration spokesman had in previous years put him at odds with several of Somerset's counsel and with Lord Camden, chief justice of the Court of Common Pleas, on important legal issues, and on colonial policy in particular. In view of the strong support shown by Somerset's politically active lawyers for his cause, and the very substantial press and public discussion the case received, Lord Mansfield must have been acutely aware of its political sensitivity. Indeed, the Somerset arguments often amounted to political threats or persuasion in addition to (sometimes even in lieu of) more traditional legal argument.	70

Arguments of Counsel
During five days of hearings, Somerset's counsel made virtually every conceivable argument against the legality of slavery in England. Somerset's counsel also bluntly and in graphic terms made clear their abhorrence for colonial slavery and the slave trade, presenting a range of further arguments that would have challenged the legality of both institutions. They argued that slavery was contrary to natural law, and that there was no right of permanent enslavement. They argued that slavery was inconsistent with Christianity and also inconsistent with inherent limits on the right to contract.	71
In response, counsel for Steuart, the real party defendant, argued that English law authorized contemporary slavery in England because villeinage, its equivalent, was still legally permissible. They argued that English statutes authorized slavery not just in the colonies but in England. Alternatively, they argued, slaves who came to England should be treated as servants while their masters were temporarily in England, but their return to the colonies should nevertheless be compellable. Finally, they argued, subtly but forcefully, that a decision emancipating slaves who came to England would endanger colonial slavery. A review of core arguments made by the adversaries is useful in understanding the judgment.¹²⁴	72
Somerset's counsel's core arguments. Serjeant Davy began by attacking villeinage as a tyrannical "usurpation upon ... natural rights,"¹²⁵ which had become extinct for compelling secular and religious reasons,¹²⁶ and which, even if legally still valid, could not apply to Somerset and would, in any event, be politically unacceptable as a basis for slavery.¹²⁷ Davy made an extended, politically very pointed, argument that the rival Court of Common Pleas, which could also hear slavery cases if Mansfield decided for the slaveowners, would never accept villeinage as a legal basis for slavery.	73
Davy contended that setting foot in England emancipated slaves:¹²⁸ "[A]ny slave being once in England, the very air made him a free man," citing Cartwright's Case,¹²⁹ because " ... the Soil the Air of England ... makes this part of our Constitution."¹³⁰ Davy asserted that Virginia law could not apply in England. England would not permit "a Turk" to "bring here his fair Circasian slaves" and rape them with impunity.¹³¹ Virginia law would permit Steuart to beat Somerset to death with impunity, or cut off part of Somerset's foot for trying to escape.¹³² Since such acts would be crimes in England, Somerset's slave status in Virginia must be disregarded in England.¹³³ Finally, Davy discussed a number of precedents he claimed barred English slavery, among which were virtually all of the cases discussed above in Part I.	74
Serjeant Glynn then argued "very strongly" for Somerset.¹³⁴ Glynn immediately made clear his political focus by stating that he was certain the court would not be influenced by "any undue influence" from the slave colonies or their "convenience" in deciding the case.¹³⁵ Glynn asserted that slavery was dangerously expansive and dehumanizing.¹³⁶ Villeinage was so disfavored legally that any other species of slavery would have to have been authorized by statute.¹³⁷	75
After listening to Davy and Glynn, Henry Marchant, a prominent American attorney, wrote in his diary for that day that there was no difference in principle between profiting from the slave trade and employing slaves in a business. In Marchant's view, the argument that "British soil and British air" were different from American "Soil and Air" where "Liberty" was concerned was nothing more than a "plausible Pretence" to "cheat an honest American of his slave."¹³⁸ Marchant thought that Davy's and Glynn's arguments attacking slavery in England would apply with equal force to the colonies.¹³⁹	76
James Mansfield made a natural rights argument,¹⁴⁰ and concluded that slavery in England could only be imposed by "the legislature."¹⁴¹ Francis Hargrave followed. His primary argument was that the procedures for establishing villeinage were exclusive, and therefore slavery could not now be established in England, "until the legislature shall interpose its authority.... "¹⁴² Hargrave also asserted that colonial slavery rested only on positive law. Mr. Allen, final Somerset counsel, made a broad-ranging attack on the theoretical basis of slavery itself, an argument that would have outlawed colonial as well as English slavery.¹⁴³	77
Steuart's counsel's main arguments. In addition to the arguments summarized above, Wallace attacked the precedents on which Somerset's counsel had relied. He also argued—acknowledging the importance of the chronic runaway problem facing slaveowners—that if change of location were sufficient to change slave status, a slave who left Virginia to go "to the adjacent country" would be freed.¹⁴⁴	78
Dunning's argument (quite probably approved by the slaveowners) took a very different tack from—and, indeed, undercut—Wallace's argument. Dunning emphasized that he did not intend to defend slavery per se. Instead, he subtly conveyed to Mansfield the slaveowners' core concern—which was not whether they won in Somerset, but rather, the precise grounds on which it was decided. Dunning did this by presenting an extended discussion of the economic value of slaves in Jamaica¹⁴⁵ and the dangerous effects a decision emancipating slaves in England would have on future insurrections there. This entire discussion was wholly irrelevant, as Dunning surely knew, unless the decision in Somerset would adversely affect colonial slavery. Dunning stated that he thought the same numbers of "negroes" would come to England no matter how Somerset was decided, thus making clear to Mansfield that slaveowner interests did not care fundamentally about the substantive outcome in Somerset itself.	79
Dunning's arguments demonstrate that the actual concern of the slaveowners was not primarily to prevail in Somerset, which they saw as marginal to their interests, but was instead to prevent a ruling in Somerset that had much broader adverse implications for them. Although Dunning framed the possible adverse effects in terms of colonial slave rebellions, a legitimate enough concern to avoid the charge that it was pure pretext, contemporary evidence shows that slaveowners were in reality very concerned that a ruling that slaves were not property in England would necessarily devalue or destabilize their colonial investments in what they thought was a risky trade.¹⁴⁶	80
Dunning conceded that Cartwright's Case meant that when a slave was brought from Russia, the master could no longer punish him according to the slave laws of Russia.¹⁴⁷ However, Dunning argued, English law recognized a right to hold persons to involuntary lifetime service subject to limits on "cruel usage," and that was all that slaveowners sought. Dunning thus offered Mansfield a basis for sustaining Steuart's position far narrower than that suggested by Wallace. Even more importantly, Dunning had made clear that the slaveowners wanted to avoid losing the case on the broad grounds advocated by Somerset's counsel.	81

Posthearing Proceedings and Legislative Efforts
At the close of argument, Lord Mansfield announced that "though his brothers on the Bench should be unanimous, [the case] required ... [a] consultation ... among the twelve Judges.... "¹⁴⁸ According to Justice Ashhurst's notes, Mansfield said he thought that the "return renounce[d]" the idea of a "contract of service" because the owner insisted on the power to use force to send Somerset abroad for sale;¹⁴⁹ this claim meant "every idea of [such] a contract ceases.... "¹⁵⁰ Mansfield continued that complete liberty for English slaves would cost owners 700,000 pounds,¹⁵¹ while if colony slave laws "be found binding ... it must imply consequences altogether foreign" (i.e., unacceptable).¹⁵² Mansfield listed as unacceptable consequences the power of killing slaves or enslaving their posterity.¹⁵³ Mansfield then explained that Steuart and the West India merchants could end the matter by manumitting Somerset; and that if the merchants chose to go through with the case, "judgement should be given according to the strict letter of the law ... without ... power to attend to ... compassion ... or the danger of the precedent ... fiat justitia ruat coelum.... "¹⁵⁴	82
The parties did not compromise, apparently because the slaveowners decided that they wanted a definitive legal ruling to resolve the uncertainty regarding their colonial property interests.¹⁵⁵ Slaveowner interests nevertheless made an unsuccessful effort to obtain favorable legislation days after Mansfield's remarks.¹⁵⁶ Why Parliament declined to assist the slaveowners is unknown, but it is clear that by 1772 there was substantial English antislavery sentiment, at least in London, as evidenced by the vigorous presentation by Somerset's politically active counsel, and by the newspaper coverage of Somerset (which included related antislavery editorials, antislavery commentary, and correspondence).¹⁵⁷ As early as 1776, Parliament also refused to act on motions by abolitionists attacking the slave trade. It thus seems likely that in 1772 Parliament was already internally divided on slavery and that the administration, which usually had power to determine the parliamentary agenda, saw no useful political purpose to be served by a debate that would force Parliament to take sides on the issue, causing divisiveness not only over slavery but also over whether there should be two laws of slavery, one for England and one for the colonies, without colonial consent.	83
What is clear is that the slaveowners thought a court decision in Somerset was necessary to protect the stability of investments in colonial property.¹⁵⁸ A newly discovered newspaper report stated that slaveowners believed that they would "certainly" win if the issue was decided by the Twelve Judges, because the judges would conclude that colonial property created by virtue of English statute must be deemed property in England.¹⁵⁹ For that reason, the slaveowners may not have pressed Parliament particularly hard to assist them.¹⁶⁰	84

The Content of Lord Mansfield's Judgment
On June 22, 1772, Lord Mansfield delivered his Somerset judgment. Subsequently, there has been considerable disagreement about what he actually said.¹⁶¹ Oldham compared five versions of Lord Mansfield's judgment.¹⁶² Other versions of the judgment are found in approximately a dozen newspapers published at the time.¹⁶³ These other versions may be divided into the "brief reports" and the "detailed" newspaper report. Although the brief reports addressed important issues, and appear generally consistent with Mansfield's known views, given the possibility of bias, hearsay, confusion, and lack of corroboration, it seems best to exclude them from consideration in analyzing the judgment.¹⁶⁴	85
The "detailed" report. The brief reports were quickly followed—in some newspapers—by a detailed account of Lord Mansfield's judgment that agreed in most respects with the Hill/Balguy report.¹⁶⁵ This contemporaneous newspaper report is probably the most accurate account of the judgment, not the considerably later Hill/Balguy report preferred by Oldham.¹⁶⁶ There were significant differences between the accounts.¹⁶⁷ However, except as to whether Mansfield referred to the limited powers of "courts of justice" regarding slavery, the differences between these reports do not materially affect the major points made below regarding the judgment.	86

Analysis of Lord Mansfield's Judgment
Lord Mansfield's Somerset judgment managed to be both delphic and oracular, a rare feat. To avoid controversy, Mansfield provided as little insight as possible into his thoughts.¹⁶⁸ His brief statement of a compromise result accompanied by a statement of much broader principles led to foreseeable controversy and misinterpretation on important points. Yet, certain aspects of Mansfield's judgment deliberately set forth a clear and powerful framework for the law of slavery in the empire.	87
The ruling outlawing private use of force. The ruling in Somerset, Mansfield himself later said, "only determined that a Master cannot by force carry his Slave out of England.... "¹⁶⁹ This was a technically correct account of the narrow holding, particularly where emancipation was concerned, but it was not a complete account of the effect of the judgment for several reasons. First, Lord Mansfield held that all aspects of Somerset's status as a servant must be determined under English law. Mansfield decided that point completely consistently with the decisions in Chamberlaine, Smith v. Gould, and, broadly speaking, even with Butts v. Penny. Second, although in context Lord Mansfield's reference to a "high act of dominion" was a reference not to all aspects of slavery but, instead, only to the use of force to compel someone to leave England,¹⁷⁰ his ruling implied that whatever a person's status outside England, any use of force against that person in England must be permissible under English law. In these two significant respects, the Yorke-Talbot Opinion was clearly contradicted, and Somerset was inconsistent with Pearne v. Lisle.¹⁷¹	88
If these points were all that Somerset had decided, it could fairly be seen as an unremarkable continuation of the basic principle established by earlier slavery cases that where conflicts of law occurred, England would not impose on persons in England a penal status based on foreign law.¹⁷² Given earlier law and Mansfield's views on conflict of laws issues, there was no realistic possibility that Lord Mansfield would hold that Somerset's status in Virginia permitted him to be subjected in England to physical punishment or coercion that would be criminal under English law. In this important respect, the outcome in Somerset was reasonably predictable, contrary to the conclusions of Holdsworth and Oldham.¹⁷³	89
Lord Mansfield did not state explicitly that he disagreed with the Yorke-Talbot Opinion and Pearne v. Lisle only to the extent that they would permit the use of force against a slave where English law would not permit its use against other types of involuntary servants. Yet it is difficult to avoid the conclusion that that was Mansfield's view. If Mansfield had wanted to disagree with Yorke-Talbot's conclusion that coming to England did not emancipate slaves or with Pearne v. Lisle regarding trover, all he had to do was to say so.¹⁷⁴ Still, his silence on the limited extent to which he was rejecting these earlier opinions caused confusion. Even slaveowner attorneys such as Samuel Estwick were uncertain whether Mansfield intended only limited rejection of the Yorke-Talbot Opinion.¹⁷⁵	90
Mansfield's unwillingness to state that slaves who came to England were thereby emancipated was especially telling in view of the fact that this was the central contention in Serjeant Davy's and Hargraves's arguments. Alternatively, Mansfield could have endorsed emancipation by adopting either a broad reading of Chief Justice Holt's position in Chamberlaine and Smith v. Gould¹⁷⁶ or by accepting Lord Northington LC's ruling in Shanley v. Harvey.¹⁷⁷ Instead, Mansfield entirely ignored both Somerset's counsel's contentions and their authority, strong circumstantial evidence that he did not intend his ruling to emancipate slaves in England.¹⁷⁸ Moreover, Mansfield could not have emancipated English slaves without, in his view, exposing English masters to property loss, claims for back wages, and possibly to other types of tort claims as well, and he thought this type of retrospective impact would be unacceptable.¹⁷⁹ Although other evidence seems unnecessary, Mansfield's private 1779 comments to Thomas Hutchinson, and a newly discovered report (the Abbot MS report) of his comments regarding the breadth of the Somerset decision in R. v. Inhabitants of Thames Ditton in 1785, both confirm his intent on emancipation.¹⁸⁰	91
Mansfield's Thames Ditton comments leave no doubt that he did not think that Somerset emancipated English slaves. In fact, the newly discovered manuscript report of Thames Ditton makes clear that it was generally accepted that Somerset had not emancipated English slaves; counsel for both parties accepted that the pauper there was either a slave or in involuntary servitude once in England.¹⁸¹ This new report also makes clear that Mansfield believed that the ruling in Somerset turned on the fact that even villeins could not be compelled to leave England; thus, it appears possible that he thought the permissible treatment of English "slaves" was bounded by the authorized treatment of villeins.	92
Mansfield's decision to prohibit any use of force against slaves who came to England unless it was authorized by the common law meant that he had barred classical chattel slavery in England (absent positive law), despite his failure to emancipate slaves entirely. Mansfield's decision on this point also had broader implications. The first was that it would become more difficult legally to justify differences between treatment of slaves and other servants—for example, would a slave sale not be a "high act of dominion?" The second stemmed from the fact that Serjeant Davy had based the claim for emancipation on the idea that anyone who came to England had a right to equal benefit of the laws.¹⁸²	93
Remarkably, Mansfield's decision adopted the "rights of man" principle that English common law provided certain minimum levels of substantive protection to anyone who came to England (though the decision limited the amount of substantive protection). This represented the emergence of a new English concept of legal freedom that divorced fundamental legal rights from race, birth, or free/servile status and based them instead on an individual's status as political subject. Mansfield's position on this point arguably transformed the concept of how English legal rights arose when compared to the classic account in Calvin's Case.¹⁸³	94
The status of slaves brought to England. Mansfield's judgment was also deliberately silent regarding the legal status of slaves in England after Somerset. The better inference from Mansfield's unwillingness to declare them emancipated, in light of both prior law and the arguments of counsel, is that he intended that a slave continue in "near slavery" once in England.¹⁸⁴ This view of Mansfield's position is consistent with his later statement in Thames Ditton that Somerset turned on the limits of power over villeins under English law. This outcome was reasonably predictable. "Near slavery" was the status of slaves who came to England established by the predominant view in the law prior to Somerset, which did not require a choice between slavery and full emancipation.	95
Nevertheless, it was also foreseeable that the public might conclude that in deciding that slavery must be established by positive law, Mansfield was also ending involuntary servitude or "near slavery" for slaves who came to England. Mansfield's judgment did nothing to avoid misunderstanding. Slaveowner attorneys were uncertain enough about Mansfield's intent on this point that some chose to argue that nothing had been decided.¹⁸⁵ As the next section shows, the inference is inescapable that Lord Mansfield's silence on emancipation and the status of slaves was his deliberate choice.	96
Public confusion about the judgment. Most recent historians have concluded that Lord Mansfield intended the substantive ruling in Somerset to be limited to a ruling on the use of force and that he did not intend emancipation.¹⁸⁶ That conclusion requires them to explain why much of the public—and many later observers—thought the decision was much broader in purpose or effect. A variety of explanations, from bad or biased reporting of the decision by newspapers or Capel Lofft, to unduly broad arguments by counsel, to propaganda regarding the decision spread by interested parties, or Lord Mansfield's lack of foresight, have been offered for this public perception.¹⁸⁷ These explanations are flawed.	97
The quality of the newspaper reporting of Somerset was generally quite high. While there may have been some mistaken reporting or political bias, what appear to be substantially accurate reports of the arguments and judgment itself were quickly and widely circulated. Similarly, the arguments of counsel were broad because they needed to be, given the issue raised by the return to the writ, and because the court understandably permitted this.	98
The elimination of earlier explanations for the distortion in public perception regarding the judgment leads to the ineluctable conclusion that the distortion actually occurred primarily because Lord Mansfield, after six months of deliberation, intentionally issued a compromise judgment that contained principles with potentially broad application and was silent on emancipation and on the status of slaves after they came to England.¹⁸⁸ Not only is it unquestionable that Mansfield was far too capable to have remained silent on these points through inadvertence or lack of foresight, Mansfield had told the parties in Stapylton that he believed such uncertainty about the status of slaves was desirable.¹⁸⁹	99
As Mansfield must have known, his decision allowed the adversaries to read it the way they wanted to read it on emancipation, and they proceeded to do just that. Since the decision gave both sides what they most wanted from it, it was unlikely to be challenged, and this met Mansfield's immediate political goal. It is a strong inference from the political circumstances and from the structure of the decision itself that Lord Mansfield accepted that his judgment would be misinterpreted on emancipation and slave status as the necessary price of political peace on slavery in England. Having accepted that price, Mansfield was not about to articulate his reasoning publicly or to resolve the uncertainty on these points once controversy began.	100
The positive law holding. Unlike his position on emancipation, the gist of Lord Mansfield's positive law holding was unmistakably clear: slavery in every country had always originated from positive law, by which Mansfield meant either statute or its equivalent, immemorial usage or custom. The first point to notice about this holding is that it deliberately applied both to England and to its colonies, a breadth of application that was entirely unnecessary to Mansfield's decision if the decision applied only to slavery in England. The second point to observe is that Mansfield adopted the position advocated by Somerset's counsel, both for England and for the colonies.	101
Mansfield's positive law holding necessarily rejected the argument that villeinage could provide a legal basis for English (or colonial) chattel slavery. Mansfield's holding also necessarily rejected the argument that English statutes passed in support of the slave trade, or those governing slavery in the colonies, authorized slavery in England. Thus, Mansfield demolished both major arguments supporting English chattel slavery advanced by the West Indian slaveowners. But the ruling had much larger significance for imperial politics and slavery.	102
If positive law was required to support English slavery, and there was, as Mansfield thought, no such positive law, then chattel slavery was unlawful in England. This apparent equivalence between a requirement of "positive law" to support slavery and a common law prohibition on slavery, the latter the "first tier" position advocated by Somerset's counsel, raises a central question about Lord Mansfield's judgment: why did Mansfield decline to state explicitly that English common law barred chattel slavery?	103
To put this another way, did Lord Mansfield think the legal effect in England and the colonies of the positive law holding was legally or politically the same as a holding that the common law of England prohibited slavery? There is strong though circumstantial evidence that Mansfield thought there were fundamental substantive and procedural differences between the two conclusions. But Lord Mansfield chose not to explain these differences.	104
The most persuasive evidence that Lord Mansfield did not think the "no positive law" and "common law prohibition" conclusions were equivalent is that if he had thought that they were equivalent, he could simply have endorsed the arguments made by Somerset's counsel on this point. He did not take this obvious course. To understand why, the critical clue is Mansfield's deliberately expansive statement that his positive law conclusion applied everywhere, not just to England, when he could easily have limited his conclusion to English law.	105
The main reason that Lord Mansfield chose not to declare that English common law prohibited chattel slavery was that to have done so would have confronted him with two equally unpalatable choices. Either, as Lord Hardwicke had reasoned in Pearne v. Lisle, Mansfield would also have outlawed slavery in at least part, if not all, of the British colonies, or Mansfield would have been forced to confirm Blackstone's position that there were two systems of law where slavery was concerned, one for England under the common law and one for the colonies that were governed "outside" that law as conquests. Either result would have been politically divisive, if not wholly unacceptable, in 1772, since one result would have politically threatened colonial slaveowners whose allegiance Britain wanted while the other would have offended both English and colonial opponents not just of slavery but of Crown American policy. The following considerations reinforce the conclusion that Mansfield decided to avoid this divisive issue.¹⁹⁰	106
As is apparent from the stance of the parties, the arguments of counsel, and the newspaper coverage, both sides in Somerset were well aware that Mansfield's decision could threaten the legality and stability of slavery in the colonies as well as in England. For example, Serjeant Davy's argument that the "soil and air" of England conferred freedom, if confirmed by Mansfield, would surely have been an argument that many thought applicable to any country inhabited by Englishmen, or at least to any English settlement, since it really referred to fundamental principles of English law, which many thought, rightly or wrongly, were the "birthright" of Englishmen and traveled with them.¹⁹¹ Given Lord Mansfield's long experience with conflicts between English and colonial law, which began well prior to his accession to the bench and of which he made a classic "restatement" only two years later in Campbell v. Hall, he would certainly have understood Lord Hardwicke's position in Pearne that the colonies must follow English law on a fundamental issue like slavery. Thus, he would have understood the imperial implications of Davy's argument and others like it attacking the foundations of slavery in every part of the empire.¹⁹² Mansfield would also have been acutely aware of the unpopularity of Blackstone's position, which had been a subject of heated dispute in the context of other "transatlantic constitution" issues. Given his political dilemma, Mansfield needed a legal theory that would avoid the imperial law problem and distinguish between England and the colonies, and the positive law holding provided it.	107
There was also an important procedural difference between a "positive law" ruling and one based on common law, one that had significant political consequences. The common law and natural law basis of Somerset counsel's arguments implied that English courts had the power to end or restrict colonial slavery and at least to restrict, if not to end, the slave trade. Lord Mansfield could readily foresee that if Somerset were considered by the Twelve Judges, there might be judges who would want to use this power as advocated by Somerset's counsel. In addition, as noted above, the proslavery forces thought that if the issue was elevated to the Twelve Judges, they would ultimately win.¹⁹³ But it is a reasonable inference that in 1772 such a fight over slavery, which would ultimately occur in the House of Lords, was a fight Lord Mansfield wanted to avoid, particularly after Parliament had declined to act at the slaveowners' request.	108
In 1772, a Parliamentary decision to end slavery in England, and hence to throw into doubt the political, and possibly the legal, foundations of the slave trade and colonial slavery, would have heaped fuel on the fire of the growing colonial revolt by threatening an important basis for continued loyalty to the empire. Having played a central role in defending the administration position vis-à-vis the colonial rebellion, Lord Mansfield unquestionably would have been aware of these political implications. When settlement or legislation did not occur despite Mansfield's concerted efforts to obtain resolution without a decision, Lord Mansfield was forced to consider how to avoid future slavery controversies.	109
The positive law ruling permitted Lord Mansfield to avoid predictable future disputes with other courts, such as Common Pleas, and the resulting fight in Parliament. Notably, in making his decision Mansfield reversed his position—one he took from the beginning to the end of the proceedings—that he would seek the opinion of the Twelve Judges on the issues raised by Somerset. In fact, Mansfield's decision was designed to prevent this from occurring.¹⁹⁴	110
Was treating slavery solely as a matter of positive law a new idea in English law? None of the earlier slavery cases over more than a century relied on that principle; instead, they analyzed the issue of slave property as one controlled by common law principles (e.g., the law of trover). Lord Mansfield's positive law approach to slavery was a clear innovation (notably, one suggested several times by Somerset's counsel) that fundamentally transformed the character of slave property.	111
At least one possible source of Lord Mansfield's approach can be identified. During the decade prior to Somerset, Mansfield had been involved in a series of politically and personally bruising legal and political challenges to the authority of common law judges, as opposed to juries, and common law courts, as opposed to Parliament.¹⁹⁵ In an important case on the authority of common law courts, Harrison v. Evans, Lord Mansfield took the position that the common law could not create a crime where Parliament had decided none existed. In Harrison, heard in the House of Lords on appeal in 1767, a London by-law made it an offense punishable by a substantial fine for a Dissenter to decline to serve in Corporation offices such as sheriff.¹⁹⁶ However, Dissenters were by statute disabled from serving in such offices. Defending religious toleration, Lord Mansfield vigorously attacked Blackstone's position supporting the by-law, and the House of Lords sustained Mansfield's position. Mansfield argued that if nonconformity were a crime now, it must be by virtue of common law. He reasoned: [N]o usage or custom ... makes Nonconformity a crime.... Natural Religion ... [and] Revealed Religion are part of the Common law.... But it cannot be shewn from the principles of Natural or Revealed Religion, that ... temporal punishments ought to be inflicted for mere opinions with respect to particular modes of worship. Persecution for ... conscience, is not to be declared from reason or the fitness of things; it can only stand upon positive law....¹⁹⁷ Based on Harrison, and Mansfield's prior comments in Somerset regarding the desirability of slavery legislation, it seems reasonable to think that Mansfield did actually say in his Somerset judgment that it was impossible for "courts of justice" to introduce slavery on natural or moral "reasoning" or "inferences," as was widely reported in the press at the time, despite Oldham's favoring the Hill/Balguy report, which omits these words.¹⁹⁸Harrison suggests that although there were political motives behind Mansfield's positive law holding regarding slavery, Mansfield personally agreed with Somerset's counsel that slavery as a legal institution in both England and its colonies must be based on positive law.	112

Colonial Slavery
Despite his threat to rule squarely for one side or the other, Lord Mansfield's judgment instead created a compromise designed to defuse the politically dangerous slavery issue, but it was a compromise that had important implications for colonial slavery.¹⁹⁹	113
Given Harrison, Lord Mansfield surely appreciated that for the slaveowners, his decision was a "poisoned chalice." A positive law rationale without emancipation preserved the short-term political—but not the long-term legal—status quo on colonial slavery. Although Mansfield protected the colonial status quo until Parliament acted, he did so by creating a legal framework that also deliberately devalued slave property and did as much damage to the legitimacy of the slaveowners' position as possible, short of an outright ruling against them. Mansfield's deliberate devaluation of slave property had foreseeable adverse consequences for slavery's continuation throughout the empire. Not surprisingly, major slaveowner representatives immediately and vigorously attacked the decision, while abolitionists applauded it.	114
Mansfield's comment in the judgment that slavery had originated not just in England but in every country solely from positive law was a deliberate effort to demolish legal justification for slavery on any other basis, in England as well as in the colonies. Mansfield's positive law holding meant that slavery existed only within those jurisdictions where positive law sanctioned it, and only to the extent it was sanctioned. The fact that slavery became entirely a creature of positive law also meant that it could be selectively altered or abolished in the colonies. By the late eighteenth century, the English Crown had limited legal authority to govern in the colonies without Parliament's acquiescence; therefore, Mansfield's creation of a positive law framework for slavery in the context of rising abolitionist sentiment laid the groundwork for Parliamentary control of colonial slavery.²⁰⁰ Perhaps equally important was that making slave property a creature of positive law raised substantial issues about whether compensation to slaveowners would be required if Parliament chose to alter or abolish slavery.²⁰¹	115
Mansfield's positive law holding also knowingly devalued slave property by making slave status wholly dependent on the law of individual jurisdictions, which he (and slaveowners) knew meant that slave flight would increase because fugitive slaves could become free or protected against excessive force and compelled return, not just in England but in the colonies.²⁰²	116
Whether Lord Mansfield qualified his remarks on slavery's origin by referring to limits on the powers of "courts of justice" to sanction slavery or not, a larger point remains. Reached after extraordinarily comprehensive and highly visible public arguments from England's preeminent lawyers, Lord Mansfield's conclusion on the origin of slavery, even if qualified, was inevitably, as he well knew, profoundly destructive of the moral and legal legitimacy of slavery, since it made slave property an artificial creature of statute and deprived slavery of the sanction of the common law.²⁰³ The sanction of the common law was also the sanction of religion and morality because it was widely believed at the time that they were subsumed within the common law. Mansfield's argument in Harrison and the religious and political arguments of Somerset's counsel amply illustrate the power of the contemporary view that the common law must be consistent with morality and religious belief. The sweeping nature of Mansfield's statement on positive law intentionally undermined the moral and religious, and thus the political, legitimacy of colonial slavery.	117
Although Lord Mansfield's decision may have bought time for slaveowners, as intended it was "the handwriting on the wall" for them.²⁰⁴ That colonial slaveowners understood Mansfield's unwillingness to defend their position largely accounts for their concerted attacks on the judgment that began almost immediately after it was announced.²⁰⁵ Mansfield's public defection in Somerset meant that it was really only a question of time until public opinion deserted slaveowners as well.	118
The first part of Davis's conclusion in his classic analysis, after reviewing English law, including Somerset, that "English courts endorsed no principles that undermined colonial slave law" was technically accurate, but only because Lord Mansfield deliberately created a means to distinguish between English and colonial law on slavery in his Somerset judgment.²⁰⁶	119
Davis's further conclusion that colonial law and English law could "coexist and even interpenetrate within the larger imperial sphere" was mistaken formalism.²⁰⁷ During the eighteenth century, English common law and colonial law on chattel slavery were regarded by many, including prominent English judges such as Lord Chancellor Hardwicke and Mansfield, as potentially or actually interdependent and were unquestionably in substantive conflict. Mansfield sought to find a way to avoid explicitly addressing that conflict by creating a new legal framework for slavery, but did so quite knowingly at the price of undercutting the legal, economic, political, and moral basis of slavery as an institution throughout the Atlantic empire.	120

Conclusion
The manner in which Mansfield reframed the debate over slavery significantly influenced that debate for the next one hundred years. His judgment contained important silences and ambiguities. Yet, Somerset expanded freedom when it banished any doubt that English law protected certain fundamental "rights of man" even for African slaves in England, including the right of access to the courts to protect against unlawful imprisonment or abuse, and freedom from chattel slavery. Somerset was also a farsighted decision to narrow sharply the legal authority for slavery, devaluing slave property by destroying its "imperial property" status and its moral, and hence political, legitimacy. Mansfield was a loyal servant of the Crown, but he was also a friend of justice. Mansfield's decision in Somerset, though an effort to serve both masters at a time when many thought their interests conflicted, nevertheless commends him to history.	121
Appendix 1. Transcript of Lord Mansfield's Judgment in Somerset's Case As Reported in General Evening Post, London June 21–23, 1772 To the Editor of the general evening post. SIR, The following is as correctly my Lord M——d's Speech on the Negro Cause, as my memory, assisted by some notes, could make it: it begins after the stating of the return. Your's, & c. A CONSTANT READER. 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], 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 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 man must be discharged. Appendix 2. Transcription of Abbot MS Report of St. Luke's Chelsea v Thames Ditton, SC R v Inhabitants of Thames Ditton, 4 Doug 300, 99 ER 891²⁰⁸ Report: The report of the case follows: "St. Luke's Chelsea v Thames Ditton Two Justices removed Charlotte Howe from Thames Ditton Co. Surry to St. Luke's Chelsea Co. Midx. [Middlesex]: and their order upon appeal to the Qu.[arter] Sess[ions] was discharged it Appendix 2, Transcription of Abbot MS Report of St. Luke's Chelsea v. Thames Ditton, SC R. v. Inhabitants of Thames Ditton, 4 Doug 300, 99 ER 891 (continued) appearing:— 'That the s[ai]d Charlotte Howe was bought in America by Capt[ai]n Howe as a Negro Slave and by him brought to England in 1781: That in Nov[ember] 1781: The said Capt[ai]n Howe went to live in the s[ai]d Parish of Thames Ditton and took with him the said Charlotte Howe and she continued with him there in his Service till the 7th Day of June 1783: when Mr. Howe died; Soon after which the said Charlotte Howe was babtized [sic] at Thames Ditton by the name of Charlotte Howe that the said Charlotte Howe continued after the Death of Capt[ai]n Howe to live with Mrs. Howe his widow and Ex[ecu]trix who afterwards removed into the Parish of Saint Luke Chelsea and the said Charlotte Howe continued to live with her there as before for 5 or 6 Months when she left Mrs. Howe that the said Charlotte Howe was during all this time childless and unmarried and was removed to the said Parish of Saint Luke Chelsea as having served the last 40 Days in said Parish. Palmer. In support of the Order of Sessions. The Ground on which the Settlement is claimed is by Service in St. Luke's;—But no Hiring is found, not even by Implication, nor indeed can there be any Implication by Law of a Hiring; altho'[ugh] from facts which do amount to a general Hiring, the Court will infer that Hiring to be for a year.—But here no Contract is found nor any grounds of presuming it; the nature of the Case proves the contrary.—Let it be shewn in what this Hiring consists. Lee. Contra. The general Scope of Stat. 43. Eliz. is that persons shall not become settled by serving less than a year in the same place. Negroes bought abroad do not remain here in the like capacity, but are free to gain Settlements; notwithstanding that some obligation & relation continues to subsist. Grotius says that Slavery where tolerated lasts as long as the subsistence which is given for the Service, that is, the Slave is a hired Serv[an]t for so long as the Laws of the Country permit. A perpetual obligation to serve is at least equivalent to a voluntary contract for a year:and mere circumstance ["want of" deleted] wages is not essential to the Relation of Servant and Master. Mingray—same side—relied on the like arguments. Bond G. Same side. Argued that on the fair construction of Stat. 3.W. c. 11. The Pauper obtained a Settlem[en]t in Little Chelsea. By Stat. 5. G.2.c. 7. and 32 G.2. c. 32 the Negro Trade is recognized to be lawful here. And altho[ugh] by Stat. 12.Car. 2. the Condition of Villeins regardant is destroyed; but that of Villeins in gross still subsists. Originally and so early as Y.B. 2 H.4 fo. 14. a contract for Life was allowed—and by Stat 1. Ed. 6. c.3 (tho' since repealed) vagabonds might be made Slaves. By Chamberlain v. Harvey Carth. 396 Trover was brought for Slaves, but a Slave was there said not to be a Chattel but only a Slavish Servant. See also to the same effect1762. Shanley v. Harvey cur. L[or]d. Northington and & Molloy on Title Slavery. And by Blackstone 1 vol. 425–127 it is said, that Service subsists tho' the Slave is protected by the laws of England—and L[or]d Mansfield said in Sommerset's Case that whet[her] Slaves could gain Settlements was a new Question. Lord Mansfield. Stopped Palmer's Reply; and in the course of the argument observed, that Sommerset's Case only determines, that a Master cannot by force carry his Slave out of England; and it turned upon a comparison with the old state of Villeins who were not compellable to go out of the country. And that altho[ugh] Actions had often been brought by Slaves for Wages yet he had never allowed them to recover. At the close of the argument Lord Mansfield said— The Point will not admit of Doubt. The Poor Laws are a System of positive Law constituted by different Acts of Parliament. They began in the reign of Elizabeth; villenage was not then abolished, perhaps villge[villeinage] in Gross is not yet so, but at that time as well as this it was and is in disuse. The Statutes in question have not a word applicable to Slaves; the Legislature never thought of them. To have the privilege of a Settlement, a person must be within the description of hiring and service here is no Hiring at all." Rule Discharged. Order Affirmed. George Van Cleve is a Ph.D. candidate in the department of history at the University of Virginia <gv2b@virginia.edu>. He wishes to thank James Oldham, Paul Halliday, Michael Klarman, Mary Van Cleve, Christopher Tomlins, and the anonymous reviewers for Law and History Review for their thoughtful comments on earlier drafts. He wishes to offer special thanks to Michael R. T. Macnair for his outstanding supervision of the thesis from which this article grew, and to Joshua Getzler, Michael Lobban, Joanna Innes, and Jack Pole for their helpful comments on that thesis. He also wishes to thank Guy Holborn and his staff at Lincoln's Inn Library, and the staff of the United Kingdom National Archives, the Bodleian Library, and the British Library, for their very helpful assistance. Notes ^1.� For biographical information on Somerset and Steuart, see Mark S. Weiner, "New Biographical Evidence on Somerset's Case," Slavery and Abolition 23 (2002): 121–36. ^2.� Paul Langford, A Polite and Commercial People (Oxford: Oxford University Press, 1989), 517. ^3.�R. v. Knowles, ex parte Somerset, (1772) Lofft 1, 98 E.R. 499, 20 S.T. 1. This case style is the form appropriate to a habeas corpus action. The case is referred to in the English Reports, and often in the literature, as Somerset v Stewart. ^4.� Wiecek concluded: "[f]ew English judicial decisions have figured so prominently in the growth of American constitutional law.... Somerset long held sway over the thinking of Americans concerned about the relationship between slavery and law.... [T]o Mansfield unwittingly was due 'the secret isolated joy of the thinker, who knows that, a hundred years after he is dead and forgotten, men who have never heard of him will be moving to the measure of his thought.'" William M. Wiecek, The Sources of Antislavery Constitutionalism in America, 1760–1848 (Ithaca: Cornell University Press, 1977), 39 (footnote omitted). ^5.� On the subsequent history for England, see Ruth Paley, "Mansfield, Slavery and the Law in England, 1772–1830," in Law, Crime and English Society, 1660–1830, ed. Norma Landau (Cambridge: Cambridge University Press, 2002), 165–84; for the United States, Wiecek, Antislavery Constitutionalism; Paul Finkelman, An Imperfect Union: Slavery, Federalism and Comity (Chapel Hill: University of North Carolina Press, 1981). ^6.� The literature through 1973 is ably discussed by Carol P. Bauer, "Law, Slavery, and Sommersett's Case in Eighteenth-Century England" (Ph.D. diss., New York University, 1973). Later literature is summarized and discussed in James Oldham, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century (Chapel Hill: University of North Carolina Press, 1992), 1221–44. More recent discussions of the law of slavery in England include William R. Cotter, "The Somerset Case and the Abolition of Slavery in England," History 79 (1994): 31–56; Paley, "Mansfield, Slavery," 165–84; and James Oldham, English Common Law in the Age of Mansfield (Chapel Hill: University of North Carolina Press, 2004), 305–23. ^7.� See, for example, Paley, "Mansfield, Slavery." ^8.� Eliga H. Gould, "Zones of Law, Zones of Violence: The Legal Geography of the British Atlantic, Circa 1772," William and Mary Quarterly 60, no. 3 (2003): 471–510. ^9.� Michael J. Guasco, "Encounters, Identities, and Human Bondage: The Foundations of Racial Slavery in the Anglo-Atlantic World" (Ph.D. diss., College of William and Mary, 2000), 8–9. ^10.� "Classical chattel slavery" as used here is a Weberian "ideal type" of legal regime where a slave was deemed property that could be sold, bequeathed, and physically damaged or destroyed with nearly complete impunity by its owner. Chattel slaves were forced to work and live at a master's arbitrary will. Slave status was perpetual and heritable, and slaves could not own property or sue in the courts. Slavery in Virginia, for example, during 1660–1770 approached this "ideal type." See Aloyisus Leon Higginbotham, In the Matter of Color: Race and the American Legal Process: The Colonial Period (New York: Oxford University Press, 1978), 53–58. ^11.� "Emancipation" as used here is an "ideal type" of legal status where legal disabilities attached to servile status were removed and where a person's rights and duties in private labor service were independent of any involuntarily acquired status such as race or gender. In the seventeenth century, emancipation would have been described as enfranchisement: the primary meaning of "enfranchise" then was to "set free (a slave or serf)" (Oxford English Dictionary). Emancipation did not, however, mean "freedom" in the modern sense of possession of an array of political and social rights, or even in the more limited modern sense of "free labor," but instead meant freedom from legal disabilities that accompanied servile status as a slave or villein. Steinfeld's description of "liberi homines" conveys a similar idea. Robert J. Steinfeld, The Invention of Free Labor (Chapel Hill: University of North Carolina Press, 1991), 95–96. ^12.� Mary Sarah Bilder, The Transatlantic Constitution: Colonial Legal Culture and the Empire (Cambridge: Harvard University Press, 2004), 39. Bilder's account contains an excellent discussion of the sources of this uncertainty in earlier English law. ^13.� The English courts played an important role in such governance disputes, including slavery disputes, throughout the eighteenth century because, among other things, they established the limits of the Crown prerogative. An excellent example of this role was Mansfield's 1774 decision in Campbell v. Hall, (1774) 1 Cowp. 204, 98 E.R. 1045, determining that Grenada was a settlement to which English common law applied and that the Crown prerogative therefore could not be used to tax, a "vital confirmation of [colonial] rights against the Crown prerogative." Andrew J. O'Shaughnessy, An Empire Divided: The American Revolution and the British Caribbean (Philadelphia: University of Pennsylvania Press, 2000), 131. This was true despite the fact that much of the colonial law of slavery in the empire was established through the Crown prerogative. Jonathan A. Bush, "The British Constitution and the Creation of American Slavery," in Slavery & the Law, ed. Paul Finkelman (Madison: Madison House, 1997), 379–418. ^14.� Lord Chancellor Hardwicke attacked Holt's position in Pearne v. Lisle, (1749) Amb. 75, 27 E.R. 47 (see below, 620–21). For Blackstone's position, see William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1765; facsimile ed., Chicago: University of Chicago Press, 1979) (hereafter Bl. Comm.), 1:104–5, 123 (see below, 612). ^15.� For the general characteristics of indentured servitude, see Steinfeld, Free Labor, 44–47. ^16.� Douglas Hay, "England, 1562–1875: The Law and Its Uses," in Masters, Servants and Magistrates in Britain and the Empire, 1562–1955, ed. Douglas Hay and Paul Craven (Chapel Hill: University of North Carolina Press, 2004), 59–116, 67, 78; David Eltis, "Labour and Coercion in the English Atlantic World from the Seventeenth to the Early Twentieth Century," in The Wages of Slavery, ed. Michael Twaddle (London: Frank Cass & Co., 1993), 208. ^17.� Eltis, "Labour and Coercion," 211. ^18.� Guasco, "Encounters," 188. ^19.� Ibid., 6–9, 67–68, 244–50. ^20.� General treatments of black slavery in England are found in Guasco, "Encounters"; Peter Fryer, Staying Power: The History of Black People in Britain, 2d ed. (London: Pluto Press, 1985); Folarin O. Shyllon, Black Slaves in Britain (London: Oxford University Press for Institute of Race Relations, 1974); James Walvin, Black and White: The Negro and English Society, 1555–1945 (London: Penguin, 1973); Seymour Drescher, Capitalism and Antislavery: British Mobilization in Comparative Perspective (Basingstoke: Macmillan, 1986); James Walvin, Britain's Slave Empire (Stroud: Tempus, 2000). ^21.� Drescher, Capitalism and Antislavery, 26–29. ^22.� Guasco, "Encounters," 244–50. ^23.� Bush, "British Constitution and Slavery," 389. In both the seventeenth and eighteenth centuries, persons who were unquestionably chattel slaves were often referred to as "servants," as in the Royal African Company euphemism "perpetual servants," so terminology must be considered in context to understand status. ^24.� It does not appear that in England during this period involuntary servants other than blacks were sold in public markets, routinely forced to wear unremoveable collars denoting their status as owned property (and painted into aristocratic portraits in such collars), denied baptism, or shipped out of the country into slavery as punishment. See Guasco, "Encounters," 231–405, and works cited above, n. 20, for the evolution of English attitudes toward Africans in various contexts during this period. ^25.� The Vagrancy Act 1547, 1 Edw. 6 c.3, based enslavement on "criminal" vagrancy, not civil status, and is therefore irrelevant. For its history, see C. S. L. Davies, "Slavery and Protector Somerset: The Vagrancy Act of 1547," The Economic History Review, 2d ser, 20 (1966): 533–49. ^26.� Some would make an exception for Scottish colliers. Eltis, "Labour and Coercion," 209–10. ^27.� Granville Sharp attacked the "tyrannical and dangerous" practice of disciplinary imprisonment. Granville Sharp, 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. ^28.� Morgan Godwyn, Trade Preferr'd before Religion and Christ Made to Give Place to Mammon (London, 1685), 4–5 (chaining followed by forcible shipment to colonies to avoid baptism). ^29.� Also see above, n. 24. ^30.� By the late seventeenth century, masters were limited to reasonable force in "correcting" apprentices. R. v. Keller, (1683) 2 Shower 289, 89 E.R. 545; Keat's Case, (1696) Skin. 666, 90 E.R. 298. There were claims as early as the 1670s that limits on use of physical force against apprentices applied to everyone in England, including former slaves. Charles Molloy, De Jure Maritimo Et Navali or, a Treatise of Affairs Maritime and of Commerce (London, 1676), 356. These claims may have had some merit. The argument that punishment even of slaves was limited was supported by Cartwright's Case (1569?), J. Rushworth, Historical Collections, 468 (London, 1686), and this limitation was conceded by slaveholder counsel in Somerset. Although Viner's 1746 Abridgement recognized a claim of trover (damages for unlawful property conversion, see below, n. 62, for details), for "Negroes" (slaves) it did not contain separate rules governing physical punishment for Negroes. Charles Viner, A General Abridgement of Law and Equity (Aldershot, 1746), 1:240 (13); 20:425 (8). ^31.� Larry D. Gragg, Englishmen Transplanted: The English Colonization of Barbados 1627–1660 (Oxford: Oxford University Press, 2003), 117. ^32.� Claire Tomalin, Samuel Pepys: The Unequalled Self (New York: A. A. Knopf, 2002), 123, 177. ^33.� Folarin O. Shyllon, "The Black Presence and Experience in Britain: An Analytical Overview," in Essays on the History of Blacks in Britain, ed. J. S. Gundara and I. Duffield (Aldershot: Avebury, 1992), 203–4. ^34.� Shyllon, Black Slaves, 9. ^35.� Walvin, Black and White, 60. ^36.� Shyllon, "Black Presence," 203. ^37.� Drescher, Capitalism and Antislavery, 174 n. 34 (Liverpool 1766, 11 slaves); Prince Hoare, Memoirs of Granville Sharp, Esq., 2d ed. (London: Henry Colburn, 1828), 73–75 (London 1769); Walvin, Britain's Slave Empire, 62 (1771 estate sale). ^38.� Drescher, Capitalism and Antislavery, 188 n. 24. ^39.� The assault could have been prosecuted privately or publicly. Oldham, English Common Law, 260. Lisle then sued Sharp for damages for theft of his slave. Sharp discovered that his prominent counsel, and other authorities he consulted such as William Blackstone, believed Sharp had no defense to Lisle's action. Hoare, Memoirs, 48–53, 55, 59. ^40.� Shyllon, "Black Presence," 203 (not less than 10,000 slaves by 1772, though precise data are lacking); Norma Myers, Reconstructing the Black Past: Blacks in Britain, 1780–1830 (London: Frank Cass, 1996), 20, 35 (contemporary estimates of 20,000 or more London "Negro servants" by 1764; concludes that empirical data suggest between 5,000 and 10,000 blacks in London in 1780, an unknown number of whom were slaves). ^41.� Diarmid MacCulloch, "Bondmen under the Tudors," in Law and Government under the Tudors, ed. M. Claire Cross, David M. Loades, and J. J. Scarisbrick (Cambridge: Cambridge University Press, 1988), 91–109. Villeinage was a common law unfree legal status, a form of hereditary, lifetime involuntary servitude, distinguished from slavery by the fact that the villein had the rights of a freeman against persons other than his master, and very limited rights against the master himself. Villeins were sometimes termed "chattels" (a form of property), an "imperfect analogy," but a lord's rights over villeins could be bought and sold. See John H. Baker, An Introduction to English Legal History, 4th ed. (London: Butterworths, 2002), 468–72 (quotation at 469). ^42.� Steinfeld, Free Labor, 96–102. ^43.� Georges Edelen, ed., The Description of England by William Harrison (Washington: Folger Shakespeare Library and Dover Inc., 1994), 118. ^44.� Sir Thomas Smith's De Republica Anglorum was first published in the 1580s. If the law emancipated slaves once in England, one would expect Smith to have known about it and to have said so, and he did not. Smith, De Republica Anglorum, ed. Mary Dewar (Cambridge: Cambridge University Press, 1982), 137–38. ^45.� In 1669 Edward Chamberlayne claimed that slaves brought to England occupied an intermediate legal status: "free, but not from ordinary service." Edward Chamberlayne, Angliae Notitia, or the Present State of England (London, 1669), 514. This statement remained unchanged in editions of Chamberlayne's work to the mid-eighteenth century. Drescher, Capitalism and Antislavery, 185 n. 5. Charles Molloy's position was similar: chattel slavery in England was unlawful, and an action of trover (an action to recover damages for property, see below, n. 62) could not be brought for a man there, but contracts for lifetime service were lawful. Charles Molloy, De Jure Maritimo Et Navali, or a Treatise of Affairs Maritime and of Commerce, 4th ed. (London, 1690), 355–56. In a 1704 popularizing introduction to the civil law, Thomas Wood relied on the writing of Arnold Vinnius for the proposition that slaves became entirely free upon coming to England. Thomas Wood, A New Institute of the Imperial or Civil Law (London, 1704), 37–38, citing Arnoldi Vinnii J.C. in Quatuor Libros Institutionum Imperialum Commentarius Academicus & Forensis, 4th ed. (Amsterdam, 1695), 25, ad J. Inst. 1.3.3., Manu capiuntur. (I thank Michael Macnair for providing and translating the Vinnius reference.) Vinnius asserted that emancipation was the rule in several European countries, but did not claim that that rule applied in England. A broad reading of Smith v. Browne and Cooper (see below, 617), however, would support Wood's position. ^46.�Bl. Comm., 1:123. ^47.� Compare Edward Fiddes, "Lord Mansfield and the Sommersett Case," Law Quarterly Review 50 (1934): 499–511, 506–7, with Shyllon, Black Slaves, 55–76, and discussion in Oldham, English Common Law, 316–17. ^48.�Bl. Comm., 1:104–5. ^49.� Herbert S. Klein, The Atlantic Slave Trade (Cambridge: Cambridge University Press, 1999), 33. ^50.� Kenneth G. Davies, The Royal African Company (London: Longmans, Green, 1957), 331–32. ^51.� 11 November 1689 opinion of Holt and nine other judges, Public Record Office (now part of the United Kingdom National Archives) (hereafter PRO) CO 137/2. ^52.�An Act To Settle the Trade to Africa, (1698) 9&10 Will. III, c. 26. ^53.� Davies, Royal African Company, 294–95. ^54.�An Act for the more easy Recovery of Debts in His Majesty's Plantations and Colonies in America, (1731/2) 5 Geo. II, c. 7. ^55.� Although the separation of law and equity courts generally limits the use of precedents from equity in common law courts (Baker, Introduction, 97, 115), counsel and the court in Somerset cited precedents from both jurisdictions, and this article follows their example. ^56.� Fiddes, "Sommersett Case," 499; William M. Wiecek, "The Origins of the Law of Slavery in British North America," Cardozo Law Review 17 (1996): 1711–85, 1725; James C. Oldham, "New Light on Mansfield and Slavery," Journal of British Studies 27 (1988): 45–68, 48. Holdsworth and Baker suggest that the common law had an "open mind" about slavery at the beginning of the seventeenth century, when villeinage essentially ended as a social institution. William S. Holdsworth, A History of English Law (London: Methuen, n.d.), 3:507–8; John H. Baker, The Common Law Tradition: Lawyers, Books and the Law (London: Hambledon Press, 2000), 334. ^57.� But see above, 612–13. ^58.� An unattributed hearsay report is J. Rushworth, Historical Collections (London, 1686), 468–69. ^59.� John Lilburne's counsel relied on it in 1645 in arguing that the severity of Lilburne's whipping exceeded lawful bounds. The Trial of Lilburne and Wharton, in A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Year 1783, with Notes and Other Illustrations, ed. Thomas B. Howell (London: T. C. Hansard, 1816–26) (hereafter S.T.), 3:1353–54. ^60.�Cartwright's Case was not relied on in any of the English slavery cases prior to Somerset's Case. See also above, n. 30. ^61.�Butts v. Penny, (1677) 2 Lev. 201, 83 E.R. 518, 3 Keb. 785, 84 E.R. 1011, (as Anon.) 1 Freem. 452, 89 E.R. 338, Bodleian Library MS Rawl. C. 823 fo. 341. The attorney general intervened, so no judgment was entered, but the intervention probably had only to do with the type of property at issue (see below, n. 81). ^62.� A trover action was a claim for damages on the basis that personal property owned by the plaintiff had been wrongfully withheld ("converted") from plaintiff by the defendant. One predicate for that action was that the thing claimed was legally deemed property. On the history of trover, see Baker, Introduction, 397–99; Holdsworth, History, 7:401–47. ^63.� Walvin, Black and White, 110. ^64.� Ibid. ^65.� Bauer, "Law, Slavery," 6. ^66.�Wedgewood and Others v. Bayly, (1682) 2 Show. 177, 89 E.R. 874, 1 Freem. 532, T. Raym. 463, Skin. 39 (several judges of court acknowledge Butts precedent in survivorship case); Chambers v. Warkhouse, (1693) 3 Lev. 336, 83 E.R. 717; Pickering v. Appleby, (1721) 1 Com. 355, 92 E.R. 1109 (counsel cite Butts as precedent in trover dispute [Chambers] and in case raising question whether stock was a form of goods [Pickering]). ^67.� Baker, Introduction, 475, citing Lowe v. Elton, (1677) Girdler's entries, Cambridge University Library MS Add. 9430 (2) 373. ^68.�Gelly v. Cleve, (1694) 1 Ld. Raym. 147, 91 E.R. 994 (hearsay report). The report of Lowe v. Elton contains a consistent account of what appears to be the Gelly case sub nom. Cleve v. Jolliffe. ^69.� Viner, General Abridgement, 1:240 (13). ^70.� Holt had, however, held that "negroes are merchandize" under the Navigation Acts. See above, n. 51. ^71.� In two cases that are instructive though they lack precedential effect, the 1690 case of Katherine Auker and the 1717 case of John Ceaser, Sessions Courts presided over by lay judges treated slaves as if they were neither fully slave nor free, and similarly to apprentices. The courts took jurisdiction as if the slaves were servants and ordered limited relief for both petitioners. Yet in both cases they declined to discharge petitioners from service, or order compensation, though in both cases the facts alleged would have justified such results. Auker had been imprisoned by her master and also alleged torture. Sessions Books No. 472, Middlesex County (February 1690). William J. Hardy, Middlesex County Records (London, 1905), 6. Ceaser had not been paid wages in fourteen years. Middlesex Records Calendar, September & October 1717. ^72.�Chamberlaine v. Harvey, (1696) 5 Mod. 182, 87 E.R. 596, 1 Ld. Raym. 146, 91 E.R. 994, Carth. 396, 90 E.R. 830. ^73.� The trespass writs discussed in this section belong to a group of writs used to make claims for civil wrongs. The specific phrase used in a particular trespass writ described the wrong, which in turn usually entailed proof of specific elements, and delimited damages recoverable for the wrong. For example, while trespass de bonis asportatis sought damages for the carrying away of goods, which could include their value, trespass per quod servitium amisit ("whereby he lost the service" [of his servant]) was a writ used by a master to claim damages for the loss of a servant's services, but could not be used to claim damages for injuries suffered by the servant. ^74.� 5 Mod. 190. ^75.� Carth. 397, 90 E.R. 830. ^76.� An earlier analysis of Chamberlaine also concluded that the court determined the slave was like a "bound or apprenticed laborer, 'a slavish servant,' a human being whose freedom was restricted but not annihilated." William M. Wiecek, "Somerset: Lord Mansfield and the Legitimacy of Slavery in the Anglo-American World," University of Chicago Law Review 42 (1974): 86–174, 91. ^77.� Carth. 397, 90 E.R. 830. ^78.�Smith v. Browne and Cooper, (1702x1706) 2 Salk. 666, 91 E.R. 567, 2 Ld. Raym. 1274, 92 E.R. 338. Indebitatus assumpsit was a form of breach of contract action. ^79.�Smith v. Browne and Cooper; see Gavin Loughton, "The Extension of English Law Following Conquest and Settlement: The Origins of the Colonies Rule" (M. Phil. thesis, University of Oxford, 2001), 4. ^80.� Baker, Introduction, 475. ^81.� The attorney general intervened, asserting that slaves were inheritances (i.e., realty) by Virginia law and could be transferred only by deed, so no judgment was given, but that does not affect the analysis of Holt's approach to pleading. ^82.�Smith v. Browne and Cooper. ^83.�Smith v. Gould, (1706) 2 Salk. 666, 91 E.R. 567; 2 Ld. Raym. 1274, 92 E.R. 338, I.T. Mitford MS 32 fo. 7, H.L.S. MS 1109(1), fo. 22. I thank James Oldham for copies of his transcriptions of the Inner Temple (I.T.) and Harvard Law School (H.L.S.) MS reports. ^84.� Mitford MS; H.L.S. MS. ^85.�Smith v. Gould, 2 Salk. 666, 91 E.R. 567. ^86.� Mitford MS. Wiecek saw trespass as providing a means of asserting title to a slave. Wiecek, "Somerset," 93. ^87.�Case 15–Anonymous, (1722) 2 P. Wms. 75, 24 E.R. 646. What law governed in the colonies had been an issue since the late seventeenth century, particularly in the case of Jamaica, which at one point asserted by statute that all English common law was in force in Jamaica. See also APC Colonial (1720–1745), vol. 3, 47 (26 July) (Jamaica), and Joseph H. Smith, Appeals to the Privy Council from the American Plantations (New York: Columbia University Press, 1950), 482–83. ^88.� Loughton, Conquest and Settlement, 69–79. See also Bilder, Transatlantic Constitution, 35–46 and passim. But cf. Daniel J. Hulsebosch, "The Ancient Constitution and the Expanding Empire: Sir Edward Coke's British Jurisprudence," Law and History Review 21 (2003): 439–82 (arguing that English law did not confer English rights on colonies). ^89.� Edmund Gibson, Two Letters (London, 1727), 10–13; Edmund Gibson, Two Letters (with an Address) (London, 1729), 10. Gibson was Bishop of London. ^90.� Philip Yorke later became Lord Chancellor Hardwicke, one of the most influential judges of the eighteenth century, and was an important mentor to Lord Mansfield. The Opinion was quoted in full in Knight v. Wedderburn, (1778) 8 Fac. Dec. 5, Mor. 14545 (Scot. Ct. Sess.). ^91.� David B. Davis, The Problem of Slavery in Western Culture (1966; reprint, Oxford: Oxford University Press, 1988), 209–10; M. W. Jernegan, "Slavery and Conversion in the Colonies," The American Historical Review 21, no. 3 (1916): 504–27, 507 n. 19. ^92.� See Act, n. 54. ^93.�R v. Cartor, (1732) W Kel. 98, 25 E.R. 511, (as Anon) 2 Barn. 215, 94 E.R. 457, SC R. v. Ann, a black, (1733) Eng. Leg. MS H 1778–150 f. 46 (MSF 25), H.L.S. MS 4055[3]. The woman was imprisoned for assaulting her master and sought bail. The alleged owner offered to show that she was a slave, but the court refused to permit this. There are several reasons why refusal might have occurred, including the owner's earlier failure to allege slave status and the woman's apparent marriage to a freeman surety, so the case cannot be read more broadly. ^94.�Pearne v. Lisle, (1749) Amb. 75, 27 E.R. 47. ^95.� Complaint of Robert Pearne, PRO C11/1097/37. ^96.� Amb. 75, 27 E.R. 47. Davis argued that Hardwicke was relying on a statute of William III for his conclusion that Antigua law must follow English law, but there is no textual support in Pearne for the view that Hardwicke's position depended on a particular statute, as opposed to Hardwicke's "imperial Whig" view, shared with others, that English law was supreme, and colonial law could not be repugnant to it on a fundamental issue like whether slaves were property. Reed Browning, Political and Constitutional Ideas of the Court Whigs (Baton Rouge: Louisiana State University Press, 1982), 170–71; P. J. Marshall, "Parliament and Property Rights in the Late Eighteenth Century," in Early Modern Conceptions of Property, ed. John Brewer and Susan Staves (London: Routledge, 1995), 530–44, 531–32; compare David B. Davis, The Problem of Slavery in the Age of Revolution, 1770–1823 (1975; Oxford: Oxford University Press, 1999), 507. ^97.� Hardwicke also argued that Holt had ignored or misconstrued the precedent created by villeinage because slavery was no different than villeinage, which was lawful in England, thus tacitly agreeing with Holt that English law would not permit classical chattel slavery. ^98.� See above, n. 39, and 610. ^99.�Shanley v. Harvey, (1762) 2 Eden 126, 28 E.R. 844. ^100.� Granville Sharp procured Stapylton's indictment by a Middlesex grand jury for assault and false imprisonment. Stapylton removed the case to the King's Bench. Accounts of Stapylton include: Granville Sharp, Minutes of the trial of Thomas Lewis (N.Y. Historical Society MS 1771) (hereafter Minutes) and Lord Mansfield's trial notes (Oldham, Mansfield Manuscripts, 2:1242–43). ^101.�Minutes, 71. ^102.� Oldham, "New Light," 51. ^103.� Mansfield expressed concern about whether Lewis should have been permitted to testify, but it is uncertain whether this concern was genuine. ^104.� Fiddes, "Sommersett Case," 503. ^105.� Baker, Introduction, 139, 522–23. The "Twelve Judges" was composed of the judges of the three principal Crown courts: King's Bench, Exchequer, and Common Pleas. ^106.� Oldham, "New Light," 48 (quoting Minutes as quoted in Hoare, Memoirs). ^107.� Oldham argued that Mansfield thought it was likely that the jury would find that Stapylton had no property in the slave, Lewis, because Mansfield had indicated that there had been a break in the "chain of ownership" of Lewis by Stapylton. Oldham, Mansfield Manuscripts, 1:1225–28. ^108.�Minutes, 72. ^109.� Fiddes, "Sommersett Case," 499–511; C. H. S. Fifoot, Lord Mansfield (Oxford: Oxford University Press, 1936), 41–42; Jerome Nadelhaft, "The Somersett Case and Slavery: Myth, Reality and Repercussions," Journal of Negro History 51 (1966): 193–208; Bauer, "Law, Slavery," 96–146; Walvin, Black and White, 117–31; Wiecek, "Somerset"; Shyllon, Black Slaves, 77–124; Davis, Slavery in Revolution, 469–522; Jack R. Pole, "Slavery and Revolution: The Conscience of the Rich," The Historical Journal 20, no. 2 (1977): 503–13; Higginbotham, Matter of Color, 313–55; Edmund Heward, Lord Mansfield (Chichester: Barry Rose, 1979), 139–49; Drescher, Capitalism and Antislavery, 37–49; Fryer, Staying Power, 120–26; Oldham, "New Light," 45–68; Oldham, Mansfield Manuscripts, 1221–44; Cotter, "Somerset," 31–56; Paley, "Mansfield, Slavery," 165–84. ^110.�Minutes, 5–6; compare Hoare, Memoirs, 91–92 (June 1771). Court records support the later date, PRO KB 21/40 (yet Thursday next fifteen days after the feast of Saint Martin 12 Geo. III), release of Stapylton's recognizances. ^111.� 20 S.T. 1–2. ^112.� The writ and return are in PRO KB 16/17/2. ^113.� Courts then were generally bound by the facts in the return. Robert J. Sharpe, The Law of Habeas Corpus, 2d ed. (Oxford: Oxford University Press, 1989), 23, 64. ^114.� 20 S.T. 8–9. ^115.� 20 S.T. 10–11. ^116.� 20 S.T. 11–14. ^117.� 20 S.T. 21–22. ^118.� 20 S.T. 22. ^119.� At least thirteen British newspapers—and twenty-two out of twenty-four North American colonial newspapers sampled by Bradley—reported the arguments or decision. Newspapers reviewed for this article included: London Evening Post; Gazetteer & New Daily Advertiser; General Evening Post; Felix Farley's Bristol Journal; The London Packet; The Middlesex Journal; The London Chronicle; London Gazette; The Public Advertiser; The Morning Chronicle; The Edinburgh Advertiser; The Manchester Mercury; The Public Ledger; The Williamsburg Virginia Gazette; and The Charleston South Carolina Gazette. The arguments and decision were also reported in various widely circulated periodicals. See Cotter, "Somerset," 32 n. 4 (citing Bradley). ^120.� Hoare, Memoirs, 124. ^121.� Wiecek, "Somerset," 102. ^122.� The brief sketches here are taken from the Dictionary of National Biography. ^123.� The other Somerset counsel, Mr. Allen or Alleyne, appears to have been a young West Indian about whom little else is known. Bauer, "Law, Slavery," 99 n. 10. ^124.� Arguments of counsel from the following sources, which are either primary or contain primary materials, were used here: Hoare, Memoirs, 103–33; Granville Sharp, Proceedings Feb. 7, 1772, in the court of the King's Bench, London, before Chief Justice Mansfield, part of the case of James Sommersett, a slave belonging to Charles Stewart (N.Y. Historical Society MS 1772) (hereafter Proceedings); newspapers (see above, n. 119); Henry Marchant, Diary (R.I. Historical Society MS 1771–2) (citations are to the typed transcript, Philadelphia Historical Society); Lincoln's Inn MS Dampier, Ashhurst Paper Books (hereafter cited as "APB"), 10b; and the Lofft and S.T. reports. I thank Michael Macnair for bringing to my attention the existence of the Marchant diary. Detailed discussions of the hearings are found in: Bauer, "Law, Slavery," 96–146; Shyllon, Black Slaves, 77–124; Davis, Slavery in Revolution, 469–522; Higginbotham, Matter of Color, 336–48. ^125.�Proceedings, 13. ^126.�Proceedings, 27–28. Davy said that for Somerset he would give up the position that baptism constituted manumission, an important concession. Ibid., 74. Somerset had been baptized. Paley, "Mansfield, Slavery," 169. ^127.�Proceedings, 34–35. ^128.� Marchant, Diary, 1:119. ^129.�General Evening Post (London) (hereafter Post), 6–8 February 1772, 3; Marchant, Diary, 1:119. ^130.� Marchant, Diary, 1:120. ^131.� Ibid. ^132.�Proceedings, 68; Marchant, Diary, 1:120. ^133.� Marchant, Diary, 1:120. ^134.�Post, 3. ^135.�Proceedings, 98. ^136.� Ibid., 108. ^137.� Ibid., 102. ^138.� Marchant, Diary, 1:123. ^139.� Ibid. ^140.� Bauer, "Law, Slavery," 105; Hoare, Memoirs, 125–26. Davis's magisterial treatment on one occasion attributes to Lord Mansfield remarks that James Mansfield (see above, 626) made. Davis, Slavery in Revolution, 497; compare London Evening Post, 9–12 May 1772, 4. ^141.� Hoare, Memoirs, 126. ^142.� 20 S.T. 48. ^143.� 20 S.T. 68. ^144.� 20 S.T. 70. ^145.� Using Dunning's figures, about 580 million Great Britain pounds or $1 billion in today's purchasing power. ^146.�Post, 28 May 1772 (West Indians have "obtained a promise from Mr. Steuart not to accommodate the Negro cause, but to have the point solemnly determined; since, if the laws of England do not confirm the colony laws with respect to property in slaves, no man of common sense will, for the future, lay out his money in so precarious a commodity. The consequences of which will be inevitable ruin to the British West-Indies. The price of slaves is, we hear, already greatly enhanced on account of the Negro question; and people say that, 'till it is finally decided, the African trade will be in a manner annihilated'")(emphasis added). On slave rebellions in the West Indies, several of which had occurred in Jamaica in the early to mid-1760s, see O'Shaughnessy, An Empire Divided, 36–40. ^147.� APB, 10b. ^148.�London Evening Post, 21–23 May 1772, 4; Gazeteer and New Daily Advertiser, 26 May 1772, 4. ^149.� APB, 10 b. ^150.�Gazetteer and New Daily Advertiser, 4. ^151.� In today's purchasing power, approximately 50 million Great Britain pounds or $90 million. ^152.�Gazetteer and New Daily Advertiser, 4. ^153.� APB, 10b. ^154.�London Evening Post, 21–23 May 1772, 4. ^155.� See above, n. 146. ^156.�Journal of the House of Commons XXXIII 789 (25 May 1772); Morning Chronicle, 26 May 1772, 2. The slaveowners' motion suffered a type of procedural defeat that was a common Parliamentary tactic for avoidance of controversial issues; the agenda then contained no urgent business. ^157.� Langford noted that there had been a sharp growth of abolitionist sentiment among prominent Englishmen and in many colonies by the 1770s. Langford, A Polite and Commercial People, 517. ^158.� See above, n. 146. ^159.�Manchester Mercury, 2 June 1772, 1. ^160.� Fiddes, "Sommersett Case," 508–9 (slaveholders' Parliamentary efforts were not vigorous; assigns no reason). The West Indian lobby had limited, albeit substantial, power in Parliament and had other pressing issues that concerned its members. O'Shaughnessy, An Empire Divided. ^161.� Several newspaper sources say the judgment was written, but no manuscript has been located. ^162.� Oldham, "New Light," 54–60. The reports were: Lofft 1; The Scots Magazine, vol 34, 297 (June 1772); Sharp Judgement (N.Y. Historical Society MS 1772); Ashhurst, LI Dampier MSS APB 10b; Hill MS 10, J. H. Baker, English Legal Manuscripts, 2:81 (H 1787–A87), MSF 92, f. 312–314. The Hill MS was a report copied from notebooks of John Balguy, a junior barrister who later became a Welsh judge. J. Bruce Williamson, The Middle Temple Bench Book, 2d ed. (London 1937), 198 (I thank Guy Holborn of Lincoln's Inn Library for this reference). Based on notations in Hill's notebook, which also identified Balguy as the report's author (hereafter Hill/Balguy report), it is unlikely that Hill copied the report before 1774; there is no indication that Hill compared it to other reports. ^163.� These included at least the newspapers listed above, n. 119. ^164.�The brief reports. Some newspapers reported that Lord Mansfield had indeed freed slaves who came to England, but subject to an important limitation: "Lord Mansfield ... said, that every Slave brought into this Country ought to be free, and that no Master had a Right to sell them here ... but he declared that the Owner might bring an Action of Trover against any one who shall take the Black into his service." Manchester Mercury, 30 June 1772, 1. Other newspapers carried a shortened, materially different version of that report. Felix Farley's Bristol Journal, 27 June 1772, 2. Yet other newspapers initially reported a much narrower decision by Lord Mansfield, "that [the] master had no power to compel him on board a ship, or to send him back to the plantations." Post, 20–23 June 1772, 3; Daily Advertiser, 23 June 1772, 1. Other newspapers combined this description of a narrow holding with a statement that the judgment provided a trover action for owners. London Evening Post, 20–23 June 1772, 3. Another report stated: "Lord Mansfield ... delivered the unanimous opinion ... that the man's being a Negro Slave, did not authorize his Master to transport him out of the kingdom...." London Chronicle, 20–23 June 1772, 6. ^165.�London Evening Post, 23–25 June 1772, 1; Post, 21–23 June 1772, 4; Edinburgh Advertiser, 30 June–3 July 1772, 1–2. An identical report appeared in The Scots Magazine vol. 34 (June 1772), 298–99. See Appendix 1 of this article (online version only) for a transcript of this report. ^166.� Davis's account of Somerset also relied on this newspaper report, although he referred to it as the Scots Magazine report; the two are identical. Davis, Slavery in Revolution. The newpaper/Scots Magazine report is preferable for several reasons: (i) had Lord Mansfield regarded the report as inaccurate, he could easily have had it revised; (ii) if it had been materially inaccurate someone probably would have attacked it, which did not occur; (iii) the report is corroborated in several respects by Justice Ashhurst's notes; (iv) the Barbados London agent and attorney Samuel Estwick accepted this report as a reasonably accurate account of Lord Mansfield's decision even in the 1773 second edition of a pamphlet he wrote attacking the decision. Samuel Estwick, Considerations on the Negroe Cause Commonly So Called, 2d ed. (London, 1773). It has been suggested that Estwick would have preferred the newspaper report, but in view of the slaveowners' views on the necessity of judicial relief and Estwick's attack on the decision, this seems unlikely. More important, it seems fairly unlikely that Estwick would have relied on any report known to be inaccurate by the time his attack's second edition appeared, since to have done so would have damaged his credibility, and opposing pamphleteers like Francis Hargrave would have been quick to point this out; (v) the newspaper report was consistent with Mansfield's views in various cases discussed below. ^167.� The detailed newspaper report and the Hill/Balguy report disagreed on whether, as the newspaper reported, Mansfield stated that "courts of justice" could not introduce slavery now on "mere reasoning from any principles natural or political," or whether, as the Hill/Balguy report says, he instead stated his conclusion that slavery could not ever be based on such "natural or political" principles but could instead only be based on positive law. The better view, as discussed below (641–42), is that the judgment did refer to the limited powers of courts of justice. Mansfield also said that because slavery was an "odious" condition, "it" or "immemorial usage" regarding it, depending on the account, must be "taken" or "construed" strictly. Mansfield meant that any alleged immemorial usage supporting slavery must meet stringent criteria (not met by contemporary slavery) to be deemed valid. Mansfield may also have meant that immemorial usage or positive law must clearly authorize any treatment of a person as only a chattel slave could be treated before such treatment would be deemed lawful. Mansfield then concluded that under English law, a master had never been permitted to "take a slave [servant] by force to be sold abroad." The word "servant" appears at this point in the Hill/Balguy MS; "slave" appears in the detailed newspaper account. The "detailed" newspaper report is correct here. Mansfield used the term "slave" again later in explaining Somerset, see R. v. Inhabitants of Thames Ditton, (1785) 4 Doug. 300, 99 E.R. 891, Lincoln's Inn MS Misc.131 (Abbot) f.135, H 1787-C124 (MSF 113) f. 135, Middle Temple MS Gibbs, Cases in King's Bench 24 25 Geo. 3 f. 240 (Abbot MS). ^168.� Contrast e.g. Raynard v. Chase, (1756) 1 Burr. 2, 97 E.R. 155 (brewery investment challenged as unlawful). The judgment is analyzed using the "detailed" newspaper report (see n. 165), except as noted. ^169.�R. v. Inhabitants of Thames Ditton, (quotation in Abbot MS report) (emphasis added). See Appendix 2 of this article (online version only) for a transcription of the Abbot MS report. ^170.� This was Davis's position, Davis, Slavery in Revolution, 498, and is very consistent with Mansfield's comments throughout Somerset distinguishing between issues raised by the use of force and those raised by other aspects of servitude. ^171.� There is no substantial evidence that Lord Mansfield's judgment discussed any specific legal authority other than the Yorke-Talbot Opinion and Pearne v. Lisle, a telling omission. ^172.�Chamberlaine, Smith v. Gould, and Somerset are cited as the principal support for this proposition in a classic conflict of laws text. A.V. Dicey and J. H. C. Carlile, Dicey and Morris on the Conflict of Laws, ed. L. A. Collins, 13th ed. (London: Sweet and Maxwell, 2000), 85 n. 42. ^173.� Each expressed the view that Somerset could have gone either way. Holdsworth, History, 3:507–8; Oldham, Mansfield Manuscripts, 1:1240 ("outcome was not inexorable"). ^174.� That Lord Chancellor Hardwicke had been Mansfield's mentor does not alter this conclusion. ^175.� Estwick, Considerations, xii–xiii. ^176.� See above, 616, 618. ^177.� See above, 621. ^178.� Several writers relied on later events to explain intent, e.g., Fiddes, "Sommersett Case"; Cotter, "Somerset"; Paley, "Mansfield, Slavery." ^179.� Mansfield had expressed general concern on this point as early as Stapylton. Hoare, Memoirs, 91. ^180.� Thomas Hutchinson, The Diary and Letters of His Excellency Thomas Hutchinson, Esq. (Boston: Houghton Mifflin, 1884–86), 2:277; R. v. Inhabitants of Thames Ditton. ^181.�R. v. Inhabitants of Thames Ditton, (Abbot MS report). ^182.�Post, 6–8 February 1772, 3; Marchant, Diary, 1:119. ^183.�Calvin's Case, (1608) 7 Co. Rep. 1a, 77 E.R. 377, 2 S.T. 559. I am indebted to Kim's excellent study on citizenship here. Keechang Kim, Aliens in Medieval Law: The Origins of Modern Citizenship (Cambridge: Cambridge University Press, 2000), 176–211. Calvin's Case held that someone born in Scotland after the accession of James I to the English throne would not be disqualified from holding property in England, because the Scot had been born into the allegiance of the English king. As infidel aliens, African slaves would not have benefited from Calvin's Case. ^184.� Davis concluded similarly that English law (including Somerset) "did not totally dissolve the pre-existing relationship between master and slave." Davis, Slavery in Revolution, 498 and n. 52. But cf. Drescher, Capitalism and Antislavery, 37–38. ^185.� Estwick, Considerations, 46. ^186.� Oldham, "New Light," 45. The prominent exception is Cotter, "Somerset." ^187.� Nadelhaft, "The Somersett Case," 199–201; Walvin, Black and White, 125; Paley, "Mansfield, Slavery," 181–84; Fiddes, "Sommersett Case," 508; Wiecek, "Somerset," 108. ^188.� Drescher agreed that Mansfield sought and deliberately maintained ambiguity about his position, though his reasoning was somewhat different. Drescher, Capitalism and Antislavery, 40–41. ^189.� Fiddes, "Sommersett Case," 503–4. ^190.� The imperial political significance of the West Indies is made clear by the fact that during the 1760s and 1770s, "British colonial policy increasingly discriminated against the North American colonies in favor of the British West Indies." O'Shaughnessy, An Empire Divided, 106. ^191.� E.g., Marchant, Diary, 1:123. ^192.�Campbell v. Hall. Hardwicke thought all colonies were governed by English law on slavery (see above, 620–21). Blackstone's position (see above, 612) ignored the uncertainty and vacillation on this point that led to persistent conflict on the status of American colonies throughout the eighteenth century. Loughton, Conquest and Settlement, 84–87; Bilder, Transatlantic Constitution, 39. ^193.�Manchester Mercury, 2 June 1772, 1. ^194.� There is no evidence that Lord Mansfield polled all of the other judges before announcing the judgment in Somerset. Bauer, "Law, Slavery," 123 n. 9. Lord Mansfield stated that the unanimity among the King's Bench judges on the specific point to be decided meant that further argument—before the other benches—was unnecessary. In short, despite several earlier statements that such argument would occur—even if the King's Bench judges were unanimous—Lord Mansfield sought to limit consideration of Somerset to the King's Bench. ^195.� A good survey of the eighteenth-century common law-statute law relationship is David Lieberman, The Province of Legislation Determined (Cambridge: Cambridge University Press, 1989). ^196.�Harrison v. Evans, (1767) 3 Bro. P.C. 465, 1 E.R. 1437, described in detail in Philip Furneaux, Letters to the Honourable Mr. Justice Blackstone Concerning His Exposition of the Act of Toleration, and Some Positions Relative to Religious Liberty, in His Celebrated Commentaries on the Laws of England, 2d ed. (London, 1771). ^197.� Furneaux, Letters, 263–64, 278. ^198.� Oldham, "New Light," 57–60. Oldham is correct that Mansfield wanted any immemorial usage allegedly supporting slavery strictly construed. ^199.� Several writers have argued English law had no effect on colonial law on slavery, e.g., Davis, Slavery in Revolution, 469–522, 501 (English courts, including Somerset, permitted colonial slavery to develop unchecked); Bush, "British Constitution," 388–89 (prerogative supported the growth of slavery independent of English law); Gould, "Zones of Law," 471–510. ^200.� O'Shaughnessy analyzed the political importance to England of the continued allegiance of the West Indies in the American Revolution. One important effect of the Revolution was to diminish sharply the political force of the British slaveowners' lobby, because it represented only half as many slaves after the Revolution as before. O'Shaughnessy, An Empire Divided, xii. ^201.� The Jamaican Assembly's 1789 protest regarding British slave trade legislation showed that the Assembly knew there was a substantial question about whether compensation would be required if slavery was limited. Ibid., 245–46. ^202.� For example, Spanish Florida, which emancipated British colonial slaves, had therefore been a "magnet" for fugitive slaves since the end of the seventeenth century. Ira Berlin, Generations of Captivity (Cambridge: Harvard University Press, 2003), 44. Mansfield's ruling meant that slaves who escaped there became free not just under Spanish law but under English law, depriving colonists of any basis for seeking their return or compensation. ^203.� Higginbotham, Matter of Color, 313. ^204.� Shyllon, Black Slaves, 154. ^205.� Estwick, Considerations; Edward Long, Candid Reflections on the Negroe Cause (London, 1772). ^206.� Davis, Slavery in Revolution, 501. ^207.� Ibid. ^208.� Permission of the Treasurer and Masters of the Bench of Lincoln's Inn to publish this transcription in online format only as part of this article is gratefully acknowledged. Transcription and notes by George Van Cleve, April/May 2004; as amended by Jo Hutchings, Archivist, Lincoln's Inn 24 May 2004; final version, 28 May 2004. Source: The notebooks of Charles Abbot, 1st Baron Colchester, Lincoln's Inn Library, LI MS Misc 131, H 1787-C 124 folios 135–37 (MSF 113) (J. H. Baker, English Legal Manuscripts, 2:99). Marginal Note: A marginal note on the case, probably by Abbot, summarizes the case as follows: "A Slave is not Settled by his Slavery as if by hiring and service under St. 43 Eliz."

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FORUM: SOMERSET'S CASE REVISITED

Somerset's Case and Its Antecedents in Imperial Perspective

GEORGE VAN CLEVE

I. Slavery in England and the Law, 1540–1771

The Rise of the Culture of "Near Slavery" in England

England as Emancipator and Slave Trader

The Law of Slaves in England, 1540–1771

Conclusions

II. Somerset's Case: An Imperial Perspective

Factual Background and Setting

Arguments of Counsel

Posthearing Proceedings and Legislative Efforts

The Content of Lord Mansfield's Judgment

Analysis of Lord Mansfield's Judgment

Colonial Slavery

Conclusion

Appendix 1. Transcript of Lord Mansfield's Judgment in Somerset's Case As Reported in General Evening Post, London June 21–23, 1772

Appendix 2. Transcription of Abbot MS Report of St. Luke's Chelsea v Thames Ditton, SC R v Inhabitants of Thames Ditton, 4 Doug 300, 99 ER 891208

Notes

Appendix 2. Transcription of Abbot MS Report of St. Luke's Chelsea v Thames Ditton, SC R v Inhabitants of Thames Ditton, 4 Doug 300, 99 ER 891²⁰⁸