Journal of Comparative Law, Vol. 1, No. 2 (2006), pp. 225-234

Abstract

I write this after re-reading Steven M Wise's Though the Heavens May Fall. My argument, if convincing, undermines the basis of the book. Probably the most famous decision in English law is that of Lord Mansfield in Somerset v. Stewart in 1772. It is very short and very dramatic; indeed, it is so rhetorical that much of what is vital is overlooked -- as it was meant to be. Somerset was Stewart's slave in Virginia and was brought to England by his owner. Somerset travelled extensively in the service of his master, to Bristol and Edinburgh, for example. But two years after they left America, Somerset left Stewart. Stewart was incensed by Somerset's ingratitude and advertised for his return. Somerset was captured by slave-catchers and, on Stewart's orders, was put on the Ann and Mary bound for Jamaica -- virtually a death sentence for Somerset. On request from Somerset's friends, Lord Mansfield issued a writ of habeas corpus to the ship's captain, and Somerset was removed from the ship and placed under the authority of the Court of King's Bench. The case of Somerset v Stewart was heard in the Court of King's Bench before Mansfield on 14 May 1772. Mansfield's judgment opens by stating: 'The question is, if the owner has a right to detain the slave, for the sending him over to be sold in Jamaica'. The issue as so expressed is a very narrow one. On the face of it, the issue is not whether Somerset is free or not. Even less is it a declaration that there can be no slaves in England. As Wise puts it, 'Somerset was Mansfield's minimum antislavery position'. His decision was understood as meaning that in his view there could be no slaves in England. But, in subsequent correspondence, Mansfield rote 'nothing more was then determined, that that there was no right in the master forcibly to take the salve and carry him abroad'. Again, he insisted that he had gone 'no further than to determine the master had no right to compel the slave to go into a foreign country'. I believe that the correspondence, obfuscating as it is, gives his true position on the case. Mansfield is 'hiding the ball', as he should!

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