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FORUM: RESPONSE
Mansfield's Decision: Toward Human Freedom
GEORGE VAN CLEVE
| As Daniel Hulsebosch and Ruth Paley show in their perceptive and helpful comments,1Somerset's Case raises questions about several dimensions of the nature of British imperial slavery. As to those dimensions, we share considerable common ground. I agree with Paley that racism was an important element in the treatment of black slaves in England and in its colonies. Hulsebosch is correct that in the late eighteenth century protecting liberty in England by keeping England free from slavery could co-exist with the willingness or desire to maintain colonial slavery. However, as discussed below, the significance of the Somerset decision goes beyond racism and metropolitan protection. |
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Paley also rightly reminds us that there were gaps between the social reality of servitude and the law in English courts. This was true of the brutal treatment of some, perhaps even many, of those in servitude in England, narrowing the distinctions between indentured servants, "near slaves," and chattel slaves. It was also true of England's willingness to protect slavery against Christianization through colonial laws providing that baptism would not lead to manumission, disregarding early English court decisions implying that Christians could not be enslaved. Yet, for all the evasiveness Paley appropriately notes, English law struggled with labor status distinctions in part because society increasingly sought to honor them, particularly during the eighteenth century. |
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I also agree with Hulsebosch and Paley that political and socioeconomic forces and events that had nothing to do with Lord Mansfield's decision in Somerset played more important roles in the abolition of slavery than did Mansfield's decision itself. My argument is a modest one: I think Somerset made a pivotal, though gradualist, contribution to abolition. Mansfield was a politically very cautious "reformer" where slavery was concerned, not an abolitionist. Nevertheless, Mansfield's decision in Somerset unequivocally rejected all major arguments in favor of permitting chattel slavery in England made by the slaveowners and was, as contemporaries recognized, a turning point in the fight against slavery there and in the colonies. |
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As to Somerset's effects in England, Paley argues that Mansfield did not end slavery there (which I describe as "near slavery"), and I agree, but only because in my view he did not intend to end "near slavery." He did, however, intend to confirm the altered status of slaves who came to England, conferring on them clear legal rights against extreme physical abuse and protection against forcible deportation. Although it was not my purpose to trace Somerset's effects in England, I note that the 1773 Robin John case, about which Paley has written, demonstrates that Mansfield had some success in doing this. Oldham analyzed a later Mansfield case that probably had a similar deterrent effect.2 |
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Hulsebosch offers a helpful look at the conflict of laws dimension of Somerset. By the end of the eighteenth century, English courts had considerable experience with conflicts between English and foreign or colonial law stemming from conquest, settlement, business conducted by foreign merchants in England, and international prize and commercial disputes.3 The English courts may have begun to grapple with the problem of conflict of laws on slavery as early as the 1560s in Cartwright's Case, which is thought to have involved a slave brought to England from Russia. One report of the 1677 decision in Butts v. Penny described it as a decision relating the international law merchant to English law.4 The participants in Somerset extensively canvassed foreign and English conflicts law on slave status. Hulsebosch is right, I think, to sense that Mansfield believed that a status issue might need to be resolved differently if it involved colonial law than if it involved foreign law. Hulsebosch's suggestion that Mansfield's decision adapted conflicts principles to the master-servant context is consistent with my conclusion that to this extent Mansfield was following the results reached in most earlier slavery cases, particularly since the law in England prior to Somerset on disregarding foreign penal status in conflicts cases consisted of precisely those slavery cases.5 |
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As to the impact of Somerset on colonial slavery, I have a different view than Hulsebosch, who sees little effect. As Hulsebosch notes, the general legal character of the English empire was one of pluralism.6 But the idea that English imperial law was pluralist can be taken too far. Slavery law is an important eighteenth-century counterexample of a potentially successful drive for uniformity that Mansfield deliberately defeated in Somerset. Hulsebosch is dismissive of the 1729 Yorke-Talbot opinion that slaves were "imperial property," despite its apparent preparation specifically for publication by the Crown's two chief Law Officers and the exceptionally high reputation of its principal author, later Lord Chancellor Hardwicke. Hulsebosch does not discuss the very significant parallel 1732 slavery statute, Parliament's only intervention in the substantive law of slavery in a two-hundred-year period, and one that explicitly deemed slaves a hybrid form of imperial property and markedly strengthened the enforceability of claims to slave property throughout the empire for the benefit of English creditors.7 Hulsebosch's response does not address Pearne v. Lisle. Most prior writers agree that Hardwicke's 1749 decision in Pearne was a spirited defense of his 1729 Yorke-Talbot opinion. Not only was Pearne solely a colonial slavery dispute, but Hardwicke was requiring the English plaintiff to litigate in Antigua rather than in England or lose his claim. What Hardwicke did in Pearne was to assure the plaintiff that it was just to make him litigate in Antigua because he could get full relief in Antigua. Full relief was available in Antigua because a) trover lay for slaves in England and b) therefore, Hardwicke said, trover must also lie for slaves in Antigua. The most striking thing about Mansfield's decision in Somerset is that it decisively rejected this eighteenth-century drive for uniform "imperial" treatment of slave property by creating a new means to defend the legal diversity between England and the colonies where slavery was concerned. |
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The core of my argument on Somerset's colonial impact is that it was the specific means that Mansfield chose to use to insist on imperial legal diversity on slavery that ultimately mattered. Here Hulsebosch and Paley and I disagree. Paley argues that I ignore the implications of diversity. Hulsebosch argues that Mansfield's grounding of slavery in positive law didn't really matter very much; it was a "rhetorical choice," although one that, Hulsebosch acknowledges, "could not be discursively restricted to England...."8 Hulsebosch gives three reasons for thinking that Mansfield's positive law analysis did not matter. |
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Hulsebosch argues first that the Court of King's Bench (hence Mansfield) had limited jurisdiction, and could not bind colonial courts, and that therefore Mansfield's decision could not have had imperial effects. Hulsebosch asserts that the 1774 King's Bench decision in Campbell v. Hall does not show that the common law courts had jurisdiction, or that the common law operated, in overseas colonies.9 Hulsebosch's view on jurisdiction, though consistent with his important earlier writing, provides limited insight into the complex imperial politico-legal world of the late eighteenth century, particularly in the case of a politically charged issue like slavery.10Campbell v. Hall demonstrates this, but before discussing it, I describe the practical political, as opposed to purely legal, reach of the jurisdiction of King's Bench under Mansfield. |
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The key to understanding the imperial effects of a Mansfield commercial law decision like Somerset is that the colonial slave trade and slavery were uniformly regarded as very risky businesses. Stability and uniformity of law were essential to the willingness of London investors to conduct those businesses. It was this English need for legal predictability that largely accounted for the eighteenth-century effort to create a uniform imperial legal regime governing slavery, as the 1732 statute strongly suggests. |
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The Court of King's Bench could interpret English law in a way that would determine the behavior of London banks, investors, and the Crown in the colonies. Lord Mansfield dominated that court—and typically spoke for the administration—both there and in the House of Lords. While it might technically have been possible for a colonial court, or a coordinate English court, to defy Lord Mansfield, the result, given his overwhelmingly successful thirty-year track record on appeal in the House of Lords, would almost certainly have been an expensive loss. Cautious slavery investors were unlikely to be willing to take on such a fight (as, indeed, they were unwilling to do when they lost in Somerset). In short, when it came to the slave trade and colonial slavery, given their heavy dependence on English financing and legal mechanisms like insurance, Mansfield's word was likely to be law, and the slaveowners knew that. They also knew that King's Bench could determine whether English common law applied to an important colonial problem, as Mansfield did in Campbell v. Hall.11 |
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In Campbell v. Hall, Grenada citizens argued that they had been promised by royal proclamation that Grenada would be governed not as a conquest by royal prerogative, but by the laws of England, after its acquisition by England. Mansfield held, over the opposition of the Crown, that they were correct. In his analysis, Mansfield held that English law sharply limited the power of the prerogative even where it applied to a colony. Mansfield stated categorically that the king's prerogative in conquered countries was "subordinate to his own authority in Parliament" and could not be used to "make any new change [in law]" in a conquered country "contrary to fundamental principles" of English law so that, for example, no inhabitant could be exempted from the laws generally or "from the laws of trade, or from the power of Parliament...."12 Mansfield then held that the prerogative would not operate at all in Grenada (and in a dictum added Jamaica, a major West Indian slave colony, for good measure), so that Grenada was governed by English common law. |
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The narrow issue in Campbell was one that could not have been more politically salient in 1774: who had the power to tax Grenada—the king or Parliament? But at least one party saw the decision's potential implications as far broader. Here is Alleyne, counsel for the Grenada residents:
[T]he [royal] proclamation [of 1763] declares that all the inhabitants there ... should have the full enjoyment of the laws of England.... By the proclamation ... a recognition is made, of the practicability of governing this island of Grenada by the laws of England.... I argue, that the inhabitants of Grenada were considered as a colony annexed to the Crown of England ... on a plan similar to that which issues from the common center, and pervades the whole system of our American settlements.... I then conclude by direct and necessary inferences from premisses which I think clear and uncontrovertible, that every constitutional right of the British subject necessarily belonged to them....13
Hulsebosch's second argument for disregarding the significance of Mansfield's positive law analysis was that as a system of remedies, not a regulatory system, the common law did not "have the capacity to condemn slavery."14 That was not the view of knowledgeable eighteenth-century legal observers such as Francis Hargrave. Hargrave argued that if English common law did not permit enslavement by means of a recognized remedy to enforce enslavement (as existed in the case of villeinage, for example), the common law prohibited slavery. Hargrave's conclusion would have raised questions about the legal basis for slavery in any colony that purported to follow the common law, a very destabilizing result for London investors. Nothing would have been easier than for Mansfield to accept Hargrave's elegant argument, banning slavery using common law reasoning that would (at least initially) have applied only to England, but he chose not to do that. |
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Nor is it entirely accurate to say, as Hulsebosch's third argument asserts, that "the participants" in Somerset accepted the legality of colonial slavery; some of them did, but several of Somerset's counsel made arguments that condemned both colonial slavery and the slave trade, while others may have refrained from such condemnation only for tactical reasons. On the other side, Dunning argued for the slaveowners that Mansfield should avoid a decision that would adversely affect colonial slavery. The slaveowners clearly thought English and colonial slavery were linked, and I have argued that they thought the linkage was the economic damage that would be done by a conclusion that slave property was not imperial property. |
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To maintain the distinction between English and colonial law on slavery, the inference is inescapable that Mansfield concluded that he could not (or would not) rely on an argument based on English common law. Instead, he abandoned the existing common law property and tort law framework for slavery, one that for a century had conceived of and legitimized enslavement as a branch of the law of capture, whether of losers in war, wild animals, or lost property (e.g., actions for trover, trespass quare captivum suum cepit), and adopted a positive law framework for slavery that deemed it a purely artificial creation of state power. A series of important imperial consequences followed: the slavery issue was committed to Parliament (not just the House of Lords), which could legislate against such "positive law property"; all moral and religious justifications for "odious" slavery were rejected; the precise scope of slavery became entirely jurisdictionally dependent, and the nature of slave property could vary from colony to colony (weakening the marketability of slaves). In short, Mansfield made the colonial slaveholders pay a price for maintaining legal diversity, and he did not need to do that to reach the result he reached if his intention was to speak only to the law of England. The immediate and extensive published attacks on Mansfield's decision by colonial attorneys who were London colonial agents confirm that the colonial slaveholders believed Mansfield had damaged their interests, and they were right. |
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As Hulsebosch agrees, in Somerset Mansfield announced on the imperial stage in unmistakable terms that in England certain rights were human rights. Mansfield was too great a judge not to have recognized that the contagion of liberty defined as a human right would eventually spread outside England. Paley is right to warn against historical idolatry, but wrong, I respectfully suggest, to conclude that Somerset was merely confusion (or ingenious obfuscation) heaped upon legal confusion. In Somerset, Mansfield took limited but decisive steps in the progress toward human freedom in England and its colonies, despite the power of the West Indian lobby and the gathering clouds of war. |
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Notes
1.æ See Daniel J. Hulsebosch, "Nothing But Liberty: Somerset's Case and the British Empire," and Ruth Paley, "Imperial Politics and English Law: The Many Contexts of Somerset," Law and History Review 24 (2006): 647–57 and 659–64.
2.æ 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. Paley argued that the Robin John case demonstrated that slavery continued in England after Somerset. Although that case was settled by a court-approved compromise, the result was the release and return to Africa of unlawfully kidnapped Africans and a costly side payment to a colonial "owner," all quite probably as a result of the prospect of adverse action by Mansfield. James Oldham, English Common Law in the Age of Mansfield (Chapel Hill: University of North Carolina Press, 2004), 319–20 (Amissa case of 1779 resulted in large jury damage award, urged by Mansfield, against captain who unlawfully sold African sailor as slave in Jamaica).
3.æ On English law's treatment of foreign merchants, see Kim's account in his excellent and broad-ranging book, Keechang Kim, Aliens in Medieval Law: The Origins of Modern Citizenship (Cambridge: Cambridge University Press, 2000).
4.æ 1 Freeman 452, 89 ER 338 (first published 1742).
5.æ 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. However, several statements that Hulsebosch understandably attributes to Lord Mansfield (Hulsebosch, "Nothing But Liberty," 653 nn. 19–20) as a result of poor reporting of the decision were in my opinion quite probably made not by Mansfield, but by Wallace, counsel for the slaveholder. They are contained within the report of Wallace's speech and appear to have been Wallace's continuation of his argument after an interruption by Lord Mansfield. One of the quoted statements appears to have been the kind of statement that counsel would make to a court, not a statement that a prominent judge would make to counsel, and both support the rest of Wallace's argument, an argument with which Mansfield vocally disagreed in several key respects both at the time and in his decision.
6.æ One way of thinking about the limits of such pluralism is found in David Armitage, The Ideological Origins of the British Empire (Cambridge: Cambridge University Press, 2000). On another aspect of pluralism, see Kim, Aliens in Medieval Law.
7.æAn Act for the more easy Recovery of Debts in His Majesty's Plantations and Colonies in America, (1731/2) 5 Geo. II, c. 7.
8.æ Ibid., 651.
9.æ Ibid., 651–52 and n. 14.
10.æ Daniel J. Hulsebosch, "The Ancient Constitution and the Expanding Empire: Sir Edward Coke's British Jurisprudence," Law and History Review 21 (2003): 439–82 (argued that English law did not confer English rights on colonies).
11.æCampbell v. Hall, 1 Cowp. 204, 98 E.R. 1045 (K.B. 1774).
12.æ 1 Cowp. 209, 98 E.R. 1048.
13.æ 98 E.R. 863 (Campbell v. Hall, argument).
14.æ Hulsebosch, "Nothing But Liberty," 651.
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