Somerset v. Steuart (1772)

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REPORTS
OF
CASES
ADJUDGED IN THE
Court of King`s Bench
From Easter Term 12 Geo. 3. to Michaelmas
14 Geo. 3. (both inclusive)

With some select Cases
In the Court of Chancery,
AND
Of the Common Pleas,
WHICH ARE WITHIN THE SAME PERIOD.

TO WHICH IS ADDED,
THE CASE OF GENERAL WARRANTS,
AND
A COLLECTION OF MAXIMS.

By CAPEL LOFFT, ESQUIRE, of LINCOLN’S INN.

LONDON:
Printed by W. STRAHAN and M. WOODFALL, Law Printers to
His Majesty.
And published by WILLIAM OWEN, in Fleet-Street.

MDCCLXXVI.

[1]

Easter Term,

12 Geo. 3. 1772. K. B.

Somerset against Stewart.

MAY 14, 1772.

ON return to an habeas corpus, requiring Captain Knowles to
shew cause for the seizure and detainure of the com-
plainant Somerset, a negro – The case appeared to be
this –

That the negro had been a slave to Mr. Stewart, in Virginia,
had been purchased from the African coast, in the course of the
slave-trade, as tolerated in the plantations; that he had been brought
over to England by his master, who intending to return, by force
sent him on board of Captain Knowles‘s vessel, lying in the river;
and was there, by the order of his master, in the custody of Cap-
tain Knowles, detained against his consent; until returned in obedi-
ence to the writ. And under this order, and the facts stated, Cap-
tain Knowles relied in his justification.

Upon the second argument, (Serjeant Glynn was in the first, and, I
think, Mr. Mansfield) the pleading on behalf of the negro was opened
by Mr. Hargrave. I need not say that it will be found at large,
and I presume has been read by most of the profession, he having
obliged the public with it himself: But I hope this summary note,
which I took of it at the time, will not be thought imperitent; as
it is not easy for a cause in which that gentleman has appeared, not
to be materially injured by a total omission of his share in it.

Mr. Hargrave.

The importance of the question will I hope justify to your lord-
ships the solicitude with which I rise to defend it; and however
unequal I feel myself, will command attention. I trust, indeed,

[3]

and Pufendorf, b. 6. c. 3. § 5. approves the making slaves of captives
in war. The author of the Spirit of the Laws denies, except for self-
preservation, and then only a temporary slaver. Dr. Rutherforth, in
his Principles of Natural Law, and Locke, absolutely against it. As
to contract; want of sufficient consideration justly gives full exception
to the considering of it as contract. If it cannot be supported
against parents, certainly not against children. Slavery imposed for
the performance of public works for civil crimes, is much more de-
fensible, and rests on quite different foundations. Domestic slavery,
the object of the present consideration, is now submitted to observa-
tion in the ensuing account, its first commencement, progress, and
gradual decrease: It took origin very early among the barbarous na-
tions, continued in the state of the Jews, Greeks, Romans, and Ger-
mans; was propagated by the last over the numerous and extensive
countries they subdued. Incompatible with the mild and humane
precepts of christianity, it began to be abolished in Spain, as the inha-
bitants grew enlightened and civilized, in the 8th century; it’s de-
cay extended over Europe in the 14th; was pretty well perfected
in the beginning of the 16th century. Soon after that period, the
discovery of America revived those tyrannic doctrines of servitude,
with their wretched consequences. There is now at last an at-
tempt, and the first yet known, to introduce it into England; long
and uninterrupted usage from the origin of the common law, stands
to oppose its revival. All kinds of domestic slavery were prohibited,
except villenage. The villain was bound indeed to perpetual ser-
vice; liable to the arbitrary disposal of his lord. There were two
sorts; villain regardant, and in gross: The former as belonging to a
manor, to the lord of which his ancestors had done villain service;
in gross, when a villain was granted over by the lord. Villains were
originally captives at the conquest, or troubles before. Villenage could
commence no where but in England, it was necessary to have pre-
scription for it. A new species has never arisen till now; for had
it, remedies and powers there would have been at law: Therefore
the most violent presumption against is the silence of the laws, were
there nothing more. ‘Tis very doubtful whether the laws of England
will permit a man to bind himself by contract to serve for life: Cer-
tainly will not suffer him to invest another man with despotism, nor
prevent his own right to dispose of property. If disallowed by consent
of parties, much more when by force; if made void when com-
menced here, much more when imported. If these are true argu-
ments, they reach the King himself as well as the subject. Dr. Ru-
therforth says, if the civil law of any nation does not allow of slavery,
prisoners of war cannot be made slaves. If the policy of our laws
admits not slavery, neither fact nor reason are for it. A man, it is
said, told the judges of the Star-Chamber, in the case of a Russian
slave whom they had ordered to be scourged and imprisoned, that
the air of England was too pure for slavery. The parliament after-
wards punished the judges of the Star-Chamber for such usage of the

[4]

Russian, on his refusing to answer interrogatories. There are very
few instances, few indeed, of decisions as to slaves, in this country.
Two in Charles the 2d. where it was adjudged trover would lie.
Chamberlayne and Perrin, Will. 3d. trover brought for taking a
negro slave, adjudged it would not lie. – 4th Ann. action of trover;
judgment by default: On arrest of judgment, resolved that trover
would not lie. Such the determinations in all but two cases; and
those the earliest, and disallowed by the subsequent decisions. Lord
Holt – As soon as a slave enters England he becomes free. Stanley
and Harvey, on a bequest to a slave; by a person whom he had served
some years by his former master’s permission, the master claims the
bequest; Lord Northington decides for the slave, and gives him
costs. 29th of George the 2d. c. 31. implies permission in Ame-
rica, unhappily thought necessary; but the same reason subsists not
here in England. The local law to be admitted when no very great
inconvenience would follow; but otherwise not. The right of the
master depends on the condition of slavery (such as it is) in Ame-
rica. If the slave be brought hither, it has nothing left to depend on
but a supposed contract of the slave to return; which yet the law
of England cannot permit. Thus has been traced the only mode of
slavery ever been established here, villenage, long expired; I hope it
has shewn, the introducing new kinds of slavery has been cau-
tiously, and, we trust, effectually guarded against by the same laws.
Your lordships will indulge me in reciting the practice of foreign
nations. ‘Tis discountenanced in France; Bartholinus de Republicâ
denies its permission by the law of France. Molinus gives a remark-
able instance of the slave of an ambassador of Spain brought into
France: He claims liberty; his claim allowed. France even miti-
gates the ancient slavery, far from creating new. France does not
suffer even her King to introduce a new species of slavery. The other
parliaments did indeed; but the parliament of Paris, considering the
edict to import slavery as an exertion of the sovereign to the breach of
the constitution, would not register that edict. Edict 1685, permits
slavery in the colonies. Edict in 1716, recites the necessity to per-
mit in France, but under various restraints, accurately enumerated in
the Institute of French Laws. 1759 Admiralty court of France;
Causes Celebrées, title Negro. A French gentleman purchased a
slave, and sent him to St Malo`s entrusted with a friend: He came
afterwards, and took him to Paris. After ten years the servant chuses
to leave France. The master not like Mr. Stewart hurries him
back by main force, but obtains a process to apprehend him, from a
court of justice. While in prison, the servant institutes a process
against his master, and is declared free. After the permission of
slaves in the colonies, the edict of 1716 was necessary, to transfer
that slavery to Paris; not without many restraints, as before re-
marked; otherwise the ancient principles would have prevailed.
The author De Jure Novissimo, tho’ the natural tendency of his book,
as appears by the title, leads the other way, concurs with diverse

[5]

great authorities, in reprobating the introduction of a new species of
servitude. In England, where freedom is the grand object of the
laws, and dispensed to the meanest individual, shall the laws
of an infant colony, Virginia, or of a barbarous nation, Africa, pre-
vail? From the submission of the negro to the laws of England,
he is liable to all their penalties, and consequently has a right to
their protection. There is one case I must still mention; some
criminals having escaped execution in Spain, were set free in France.
[Lord Mansfield – Rightly: for the laws of one country have not
whereby to condemn offences supposed to be committed against
those of another.]

An objection has arisen, that the West India Company, with their
trade in slaves, having been established by the law of England, it’s
consequences must be recognized by that law; but the establish-
ment is local, and these consequences local; and not the law of En-
gland, but the law of the Plantations.

The law of Scotland annuls the contract to serve for life; except
in the case of colliers, and one other instance of a similar nature.
A case is to be found in the History of the Decisions, where a
term of years was discharged, as exceeding the usual limits of hu-
man life. At least, if contrary to all these decisions, the court
should include to think Mr. Stewart has a title, it must be by pre-
sumption of contract, there being no deed in evidence; on this sup-
position, Mr. Stewart was obliged, undoubtedly, to apply to a court
of justice. Was it not sufficient, that without form, without written
testimony, without even probability of a parol contract, he should
venture to pretend a right over the person and property of the
negro, emancipated, as we contend, by his arrival hither, at a vast
distance from his native country, while he vainly indulged the natu-
ral expectation of enjoying liberty, where there was no man who
did not enjoy it? Was not this sufficient, but he must still pro-
ceed, seize the unoffending victim, with no other legal pretence
for such a mode of arrest, but the taking an ill advantage of some
inaccurate expressions in the Habeas Corpus Act; and thus pervert
an establishment designed for the perfecting of freedom? I trust, an
exception from a single clause, inadvertently worded, (as I must take
the liberty to remark again) of that one statute, will not be allowed
to over-rule the law of England. I cannot leave the court, without
some excuse for the confusion in which I rose, and in which I now
appear: For the anxiety and apprehension I have expressed, and
deeply felt. It did not arise from want of consideration, for I have
considered this cause for months, I may say years; much less did it
spring from a doubt, how the cause might recommend itself to the
candor and wisdom of the court. But I felt myself over-powered
by the weight of the question. I now, in full conviction how
opposite to natural justice Mr. Stewart‘s claim is, in firm persua-

[6]

sion of it’s inconsistency with the laws of England, submit it chear-
fully to the judgment of this honourable court: And hope as much
honour to your lordships from the exclusion of this new slavery, as
our ancestors obtained by the abolition of the old.

Mr. Alleyne. – Though it may seem presumption in me to offer
any remarks, after the elaborate discourse but now delivered, yet I
hope the indulgence of the court; and shall confine my observations
to some few points, not included by Mr. Hargrave. ‘Tis well
known to your lordships, that much has been asserted by the anci-
ent philosophers and civilians, in defence of the principles of sla-
very: Aristotle has particularly enlarged on that subject. An obser-
vation still it is, of one of the most able, most ingenious, most
convincing writers of modern times, whom I need not hesitate, on
this occasion, to prefer to Aristotle, the great Montesquieu, that
Aristotle, on this subject, reasoned very unlike the philosopher. He
draws his precedents from barbarous ages and nations, and then de-
duces maxims from them, for the contemplation and practice of
civilized times and countries. If a man who in battle has had his
enemy’s throat at his sword’s point, spares him, and says therefore
he has power over his life and liberty, is this true? By whatever
duty he was bound to spare him in battle, (which he always is,
when he can with safety) by the same he obliges himself to spare
the life of the captive, and restore his liberty as soon as possible,
consistent with those considerations from whence he was authorised
to spare at first; the same indispensable duty operates throughout. As
a contract: In all contracts there must be power on one side to
give, on the other to receive; and a competent consideration. Now,
what power can there be in any man to dispose of all the rights
vested by nature and society in him and his descendants? He can-
not consent to part with them, without ceasing to be a man; for
they immediately flow from, and are essential to, his condition as
such: They cannot be taken from him, for they are not his, as a ci-
tizen or a member of society merely; and are not to be resigned to
a power inferior to that which gave them. With respect to consi-
deration, what shall be adequate? As a speculative point, slavery
may a little differ in it’s appearance, and the relation of master and
slave, with the obligations on the part of the slave, may be con-
ceived; and merely in this view, might be thought to take effect
in all places alike; as natural relations always do. But slavery is not
a natural, ’tis a municipal relation; an institution therefore confined
to certain places, and necessarily dropt by passage into a country
where such municipal regulations do not subsist. The negro making
choice of his habitation here, has subjected himself to the penalties,
and is therefore entitled to the protection of our laws. One remark-
able case seems to require being mentioned: Some Spanish criminals
having escaped from execution, were set free in France. [Lord
Mansfield – Note the distinction in the case: In this case, France

[7]

was not bound to judge by the municipal laws of Spain; nor was
to take cognizance of the offences supposed against that law.]
There has been started an objection, that a company having been
established by our government for the trade of slaves, it were unjust
to deprive them here. – No: The government incorporated them
with such powers as individuals had used by custom, the only title on
which that trade subsisted; I conceive, that had never extended, nor
could extend, to slaves brought hither; it was not enlarged at all by
the incorporation of that company, as to the nature or limits of it’s
authority. ‘Tis said, let slaves know they are all free as soon as
arrived here, they will flock over in vast numbers, over-run this
country, and desolate the plantations. There are too strong penal-
ties by which they will be kept in; nor are the persons who might
convey them over much induced to attempt it; the despicable con-
dition in which negroes have the misfortune to be considered, effec-
tually prevents their importation in any considerable degree. Ought
we not, on our part, to guard and preserve that liberty by which we
are distinguished by all the earth! to be jealous of whatever mea-
sure has a tendency to diminish the veneration due to the first of
blessings? The horrid cruelties, scarce credible in recital, perpetrated
in America, might, by the allowance of slaves amongst us, be in-
troduced here. Could your lordship, could any liberal and inge-
nuous temper, endure, in the fields bordering on this city, to see a
wretch bound for some trivial offence to a tree, torn and agonizing
beneath the scourge? Such objects might by time become fami-
liar, become unheeded by this nation; exercised, as they are now, to
far different sentiments, may those sentiments never be extinct! the
feelings of humanity! the generous sallies of free minds! May such
principles never be corrupted by the mixture of slavish customs!
Nor can I believe, we shall suffer any individual living here to want
that liberty, whose effects are glory and happiness to the public and
every individual.

Mr. Wallace – The quesiton has been stated, whether the right
can be supported here; or, if it can, whether a course of proceed-
ings at law be not necessary to give effect to the right? ‘Tis found
in three quarters of the globe, and in part of the fourth. In Asia
the whole people; in Africa and America far the greater part; in
Europe great numbers of the Russians and Polanders. As to capti-
vity in war, the Christian princes have been used to give life to the
prisoners; and it took rise probably in the Crusades, when they gave
them life, and sometimes enfranchised them, to enlist under the
standard of the cross, against the Mahometans. The right of a con-
queror was absolute in Europe, and is in Africa. The natives are
brought from Africa to the West Indies; purchase is made there, not
because of positive law, but there being no law against it. It can-
not be in consideration by this or any other court, to see, whether
the West India regulations are the best possible; such as they are,

[8]

while they continue in force as laws, they must be adhered to. As
to England, not permitting slavery, there is no law against it; nor
do I find any attempt has been made to prove the existence of one.
Villenage itself has all but the name. Tho’ the dissolution of mo-
nasteries, amongst other material alterations, did occasion the decay
of that tenure, slaves could breathe in England: For villains were in
this country, and were mere slaves, in Elizabeth. Sheppard‘s Abridg-
ment, afterwards, says they were worn out in his time. [Lord
Mansfield mentions an assertation, but does not recollect the author,
that two only were in England in the time of Charles the 2d. at the
time of the abolition of tenures.] In the cases cited, the two first
directly affirm an action of trover, an action appropriated to mere
common chattels. Lord Holt‘s opinion, is a mere dictum, a deci-
sion unsupported by precedent. And if it be objected, that a proper
action could not be brought, ’tis a known and allowed practice in
mercantile transactions, if the cause arises abroad, to lay it within
the kingdom: Therefore the contract in Virginia might be laid to
be in London, and would not be traversable. With respect to the
other cases, the particular mode of action was alone objected to;
had it been an action per quod servitium amisit, for loss of service,
the court would have allowed it. The court called the person, for
the recovery of whom it was brought, a slavish servant, in Chamber-
layne‘s case. Lord Hardwicke, and the afterwards Lord Chief Justice
Talbot, then Attorney and Solicitor-General, pronounced a slave not
free by coming into England. ‘Tis necessary the masters should
bring them over; for they cannot trust the whites, either with the
stores or the navigating the vessel. Therefore, the benefit taken on
the Habeas Corpus Act ought to be allowed.

Lord Mansfield observes, The case alluded to was upon a petition in
Lincoln`s Inn Hall, after dinner; probably, therefore, might not, as he
believes the contrary is not usual at that hour, be taken with much
accuracy. The principal matter was then, on the earnest solicitation
of many merchants, to know, whether a slave was freed by being
made a Christian? And it was resolved, not. ‘Tis remarkable,
tho’ the English took infinite pains before to prevent their slaves
being made Christians, that they might not be freed, the French
suggested they must bring their’s into France, (when the edict of
1706 was petitioned for,) to make them Christians. He said, the
distinction was difficult as to slavery, which could not be resumed
after emancipation, and yet the condition of slavery, in it’s full ex-
tent, could not be tolerated here. Much consideration was necessary,
to define how far the point should be carried. The court must
consider the great detriment to proprietors, there being so great a
number in the ports of this kingdom, that many thousands of
pounds would be lost to the owners, by setting them free. (A gen-
tleman observed, no great danger; for in a whole fleet, usually, there
would not be six slaves.) As to France, the case stated decides no

[9]

farther than that kingdom; and there freedom was claimed, be-
cause the slave had not been registered in the port where he en-
tered, conformably to the edict of 1706. Might not a slave as well
be freed by going out of Virginia to the adjacent country, where
there are no slaves, if change to a place of contrary custom was
sufficient? A statute by the legislature, to subject the West India pro-
perty to payment of debts, I hope, will be thought some proof;
another act devests the African Company of their slaves, and vests
them in the West India Company: I say, I hope these are proofs
the law has interfered for the maintenance of the trade in slaves,
and the transferring of slavery. As for want of application pro-
perly to a court of justice; a common servant may be corrected here
by his master’s private authority. Habeas corpus acknowledges a
right to seize persons by force employed to serve abroad. A right of
compulsion there must be, or the master will be under the ridiculous
necessity of neglecting his proper business, by staying here to have
their service, or must be quite deprived of those slaves he has been
obliged to bring over. The case, as to service for life was not al-
lowed, merely for want of a deed to pass it.

The court approved Mr. Alleyne‘s opinion of the distinction, how
far municipal laws were to be regarded: Instanced the right of
marriage; which, properly solemnized, was in all places the same,
but the regulations of power over children from it, and other cir-
cumstances, very various; and advised, if the merchants thought it
so necessary, to apply to parliament, who could make laws.

Adjourned till that day se’nnight.

Mr. Dunning – ‘Tis incumbent on me to justify Captain Knowles‘s
detainer of the negro; this will be effected, by proving a right in
Mr. Stewart; even a supposed one: For till that matter was deter-
mined, it were somewhat unaccountable that a negro should depart
his service, and put the means out of his power of trying that right
to effect, by a flight out of the kingdom. I will explain what appears
to me the foundation of Mr. Stewart‘s claim. Before the writ of
habeas corpus issued in the present case, there was, and there still is,
a great number of slaves in Africa, (from whence the America plan-
tations are supplied) who are saleable, and in fact sold. Under all
these descriptions is James Somerset. Mr. Stewart brought him over
to England; purposing to return to Jamaica, the negro chose to
depart the service, and was stopt and detained by Captain Knowles,
’till his master should set sail and take him away to be sold in Ja-
maica. The gentlemen on the other side, to whom I impute no
blame, but on the other hand much commendation, have advanced
many ingenious propositions; part of which are undeniably true,
and part (as is usual in compositions of ingenuity) very disputable.
‘Tis my misfortune to address an audience, the greater part of

[10]

which, I fear, are prejudiced the other way. But wishes, I am well
convinced, will never enter into your lordships minds, to influence
the determination of the point: This cause must be what in fact
and law it is; it’s fate, I trust, therefore, depends on fixt invariable
rules, resulting by law from the nature of the case. For myself, I
would not be understood to intimate a wish in favour of slavery, by
any means; nor on the other side, to be supposed maintainer of an
opinion contrary to my own judgment. I am bound by duty to
maintain those arguments which are most useful to Captain Knowles,
as far as is consistent with truth; and if his conduct has been agree-
able to the laws throughout, I am under a farther indispensable
duty to support it. I ask no other attention than may naturally re-
sult from the importance of the question: Less than this I have no
reason to expect; more, I neither demand nor wish to have allowed.
Many alarming apprehensions have been entertained of the conse-
quence of the decision, either way. About 14,000 slaves, from the
most exact intelligence I am able to procure, are at present here;
and some little time past, 166,914 in Jamaica; there are, besides, a
number of wild negroes in the woods. The computed value of a ne-
gro in those parts 50 l. a head. In the other islands I cannot state with
the same accuracy, but on the whole they are about as many. The
means of conveyance, I am told, are manifold; every family almost
brings over a great number; a will, be the decision on which
side it may. Most negroes who have money (and that description
I believe will include nearly all) make interest with the common
sailors to be carried hitherto. There are negroes not falling under
the proper denomination of any yet mentioned, descendants of the
original slaves, the aborigines, if I may call them so; these have
gradually acquired a natural attachment to their country and situa-
tion; in all insurrections they side with their masters: Otherwise,
the vast disproportion of the negroes to the whites, (not less pro-
bably than that of 100 to one) would have been fatal in it’s conse-
quences. There are very strong and particular grounds of appre-
hension, if the relation in which they stand to their masters is ut-
terly to be dissolved on the instant of their coming into England.
Slavery, say the gentlemen, is an odious thing; the name is: And
the reality; if it were as one has defined, and the rest supposed it.
If it were necessary to the idea and the existence of James Somerset,
that his master, even here, might kill, nay, might eat him, might
sell living or dead, might make him and his descendants property
alienable, and thus transmissible to posterity; this, how high soever
my ideas may be of the duty of my profession, is what I should
decline pretty much to defend or assert, for any purpose, seriously;
I should only speak of it to testify my contempt and abhorrence.
But this is what at present I am not at all concerned in; unless Cap-
tain Knowles, or Mr. Stewart, have killed or eat him. Freedom
has been asserted as a natural right, and therefore unalienable and
unrestrainable; there is perhaps no branch of this right, but in

[11]

some at all times, and in all places at different times, has been re-
strained: Nor could society otherwise be conceived to exist. For
the great benefit of the public and individuals, natural liberty, which
consists in doing what one likes, is altered to the doing what one
ought. The gentlemen who have spoke with so much zeal, have
supposed different ways by which slavery commences; but have
omitted one, and rightly; for it would have given a more favour-
able idea of the nature of that power against which they combate.
We are apt (and great authorities support this way of speaking) to
call those nations universally, whose internal police we are ignorant
of, barbarians; (thus the Greeks, particularly, stiled many nations,
whose customs, generally considered, were far more justifiable and
commendable than thier own: ) Unfortunately, from calling them
barbarians, we are apt to think them so, and draw conclusions ac-
cordingly. There are slaves in Africa by captivity in war, but the
number far from great; the country is divided into many small,
some great territories, who do, in their wars with one another, use
this custom. There are of these people, men who have a sense of
the right and value of freedom; but who imagine that offences
against society are punishable justly by the severe law of servitude.
For crimes against property, a considerable addition is made to the
number of slaves. They have a process by which the quantity of
the debt is ascertained; and if all the property of the debtor in
goods and chattels is insufficient, he who has thus dissipated all he
has besides, is deemed property himself; the proper officer (sheriff
we may call him) seizes the insolvent, and disposes of him as a
slave. We don’t contend under which of these the unfortunate
man in question is; but his condition was that of servitude in
Africa; the law of the land of that country disposed of him as
property, with all the consequences of transmission and alienation;
the statutes of the British legislature confirm this condition; and
thus he was a slave both in law and fact. I do not aim at proving
these points; not because they want evidence, but because they have
not been controverted, to my recollection, and are, I think, inca-
pable of denial. Mr. Stewart, with this right, crossed the Atlantic,
and was not to have the satisfaction of discovering, till after his ar-
rival in this country, that all relation between him and the negro, as
master and servant, was to be matter of controversy, and of long
legal disquisition. A few words may be proper, concerning the
Russian slave, and the proceedings of the House of Commons on
that case. ‘Tis not absurd in the idea, as quoted, nor improbable as
matter of fact; the expression has a kind of absurdity. I think,
without any prejudice to Mr. Stewart, or the merits of this cause,
I may admit the utmost possible to be desired, as far as the case of
that slave goes. The master and slave were both, (or should have
been at least) on their coming here, new creatures. Russian slavery,
and even the subordination amongst themselves, in the degree they
use it, is not here to be tolerated. Mr. Alleyne justly observes, the

[12]

municipal regulations of one country are not binding on another;
but does the relation cease where the modes of creating it, the degrees
in which it subsists, vary? I have not heard, nor, I fancy, is there any
intention to affirm, the relation of master and servant ceases here? I
understand the municipal relations differ in different colonies, ac-
cording to humanity, and otherwise. A distinction was endeavoured
to be established betwee natural and municipal relations; but
the natural relations are not those only which attend the person of
the man, political do so too; with which the municipal are most
closely connected: Municipal laws, strictly, are those confined to a
particular place; political, are those in which the municipal laws of
many states may and do concur. The relation of husband and wife,
I think myself warranted in questioning, as a natural relation: Does it
subsist for life, or to answer the natural purposes which may rea-
sonably be supposed often to terminate sooner? Yet this is one of
those relations which follow a man every where. If only natural
relations had that property, the effect would be very limited indeed.
In fact, the municipal laws are principally employed in determining
the manner by which relations are created; and which manner
varies in various countries, and in the same country at different pe-
riods; the political relation itself continuing usually unchanged by
the change of place. There is but one form at present with us, by
which the relation of husband and wife can be constituted; there
was a time when otherwise: I need not say other nations have their
own modes, for that and other ends of society. Contract is not
the only means, on the other hand, of producing the relation of
master and servant; the magistrates are empowered to oblige persons
under certain circumstances to serve. Let me take notice, neither
the air of England is too pure for a slave to breathe in, nor the laws
of England have rejected servitude. Villenage in this country is
said to be worn out; the propriety of the expression strikes me a
little. Are the laws not existing by which it was created? A mat-
ter of more curiosity than use, it is, to enquire when that set of
people ceased. The Statute of Tenures did not however abolish vil-
lenage in gross; it left persons of that condition in the same state as
before; if their descendants are all dead, the gentlemen are right
to say the subject of those laws is gone, but not the law; if the
subject revives, the law will lead the subject. If the statute of
Charles the 2d. ever be repealed, the law of villenage revives in it’s
full force. If my learned brother, the serjeant, or the other gen-
tlemen who argued on the supposed subject of freedom, will go
thro’ an operation my reading assures me will be sufficient for that
purpose, I shall claim them as property. I won’t, I assure them,
make a rigorous use of my power; I will neither sell them, eat
them, nor part with them. It would be a great surprize, and some
incovenience, if a foreigner bringing over a servant, as soon as he
got hither, must take care of his carriage, his horse, and himself,
in whatever method he might have the luck to invent. He must

[13]

find his way to London on foot. He tells his servant, Do this; the
servant replies, Before I do it, I think fit to inform you, Sir, the
first step on this happy land sets all men on a perfect level; you are
just as much obliged to obey my commands. Thus neither supe-
rior, or inferior, both go without their dinner. We should find
singular comfort, on entering the limits of a foreign country, to be
thus at once devested of all attendance and all accommodation.
The gentlemen have collected more reading than I have leisure to
collect, or industry (I must own) if I had leisure: Very laudable
pains has been taken, and very ingenious, in collecting the senti-
ments of other countries, which I shall not much regard, as affect-
ing the point or jurisdiction of this court. In Holland, so far from
perfect freedom, (I speak from knowledge) there are, who without
being conscious of contract, have for offences perpetual labour im-
posed, and death the condition annext to non-performance. Either
all the different ranks must be allowed natural, which is not readily
conceived, or there are political ones, which cease not on change of
soil. But in what manner in the negro to be treated? How far
lawful to detain him? My footman, according to my agreement,
is obliged to attend me from this city, or he is not; if no condition,
that he shall not be obliged to attend, from hence he is obliged,
and no injury done.

A servant of a sheriff, by the command of his master, laid hand
gently on another servant of his master, and brought him before
his master, who himself compelled the servant to his duty; an ac-
tion of assault and battery, and false imprisonment, was brought; and
the principal question was, on demurrer, whether the master could
command the servant, tho’ he might have justified his taking of the
servant by his own hands? The convenience of the public is far
better provided for, by this private authority of the master, than if
the lawfulness of the command were liable to be litigated every
time a servant thought fit to be negligent or troublesome.

Is there a doubt, but a negro might interpose in the defence of a
master, or a master in defence of a negro? If to all purposes of ad-
vantage, mutuality requires the rule to extend to those of disadvan-
tage. ‘Tis said, as not formed by contract, no restraint can be placed
by contract. Which ever way it was formed, the consequences, good
or ill, follow from the relation, not the manner of producing it. I
may observe, there is an establishment, by which magistrates com-
pel idle or dissolute persons, of various ranks and denominations, to
serve. In the case of apprentices bound out by the parish, neither
the trade is left to the choice of those who are to serve, nor the con-
sent of parties necessary; no contract therefore is made in the for-
mer instance, none in the latter; the duty remains the same. The
case of contract for life quoted from the Year-Books, was recog-
nized as valid; the solemnity only of an instrument judged requisite.

[14]

Your lordships, (this variety of service, with diverse other sorts, ex-
isting by law here,) have the option of classing him amongst those
servants which he most resembles in condition: Therefore, (it seems
to me) are by law authorised to enforce a service for life in the slave,
that being a part of his situation before his coming hither; which,
as not incompatible, but agreeing with our laws, may justly subsist
here: I think, I might say, must necessarily subsist, as a conse-
quence of a previous right in Mr. Stewart, which our institutions
not dissolving, confirm. I don’t insist on all the consequences of
villenage; enough is established for our cause, by supporting the
continuance of the service. Much has been endeavoured, to raise a
distinction, as to the lawfulness of the negro’s commencing slave,
from the difficulty or impossibility of discovery by what means, un-
der what authority, he became such. This, I apprehend, if a curious
search were made, not utterly inexplicable; nor the legality of his
original servitude difficult to be proved. But to what end? Our le-
gislature, where it finds a relation existing, supports it in all suitable
consequences, without using to enquire how it commenced. A man
enlists for no specified time; the contract in construction of law, is for
a year: The legislature, when once the man is enlisted, interposes an-
nually to continue him in the service, as long as the public has need
of him. In times of public danger he is forced into the service;
the laws from thence forward find him a soldier, make him liable to
all the burthen, confer all the rights (if any rights there are of that
state) and enforce all penalties of neglect of any duty in that pro-
fession, as much and as absolutely, as if by contract he had so
disposed of himself. If the court see a necessity of entering into
the large field of argument, as to right of the unfortunate man, and
service appears to them deducible from a discussion of that nature to
him, I neither doubt they will, nor wish they should not. As to the
purpose of Mr. Stewart and Captain Knowles, my argument does
not require trover should lie, as for recovering of property, nor
trespass: A form of action there is, the writ per quod servitium ami-
sit, for loss of service, which the court would have recognized; if
they allowed the means of suing a right, they allowed the right.
The opinion cited, to prove the negroes free on coming hither, only
declares them not saleable; does not take away their service. I would
say, before I conclude, not for the sake of the court, of the audi-
ence; the matter now in question, interests the zeal for freedom of
no person, if truly considered; it being only, whether I must apply
to a court of justice, (in a case, where if the servant was an En-
glishman I must use my private authority to enforce the perfor-
mance of the service, according to it’s nature,) or may, without
force or outrage, take my servant myself, or by another. I hope,
therefore, I shall not suffer in the opinion of those whose honest
passions are fired at the name of slavery. I hope I have not trans-
gressed my duty to humanity; nor doubt I your lordships discharge
of yours to justice.

[15]

Serjeant Davy – My learned friend has thought proper to consider
the question in the beginning of his speech, as of great importance:
‘Tis indeed so; but not for those reasons principally assigned by
him. I apprehend, my lord, the honour of England, the honour
of the laws of every Englishman, here or abroad, is now concerned.
He observes, the number is 14,000 or 15,000; if so, high time to
put an end to the practice; more especially, since they must be sent
back as slaves, tho’ servants here. The increase of such inhabitants,
not interested in the prosperity of a country, is very pernicious; in
an island, which can, as such, not extend it’s limits, nor conse-
quently maintain more than a certain number of inhabitants, dan-
gerous in excess. Money from foreign trade (or any other means)
is not the wealth of a nation; nor conduces any thing to support it,
any farther than the produce of the earth will answer the demand
of necessaries. In that case money enriches the inhabitants, as
being the common representative of those necessaries; but this re-
presentation is merely imaginary and useless, if the encrease of peo-
ple exceeds the annual stock of provisions requisite for their subsis-
tence. Thus, foreign superfluous inhabitants augmenting perpetu-
ally, are ill to be allowed; a nation of enemies in the heart of a
state, still worse. Mr. Dunning availed himself of a wrong inter-
pretation of the word natural: It was not used in the sense in which
he thought fit to understand that expression; ’twas used as moral,
which no laws can supercede. All contracts, I do not venture to
assert are of a moral nature; but I know not any law to confirm an
immoral contract, and execute it. The contract of marriage is a
moral contract, established for moral purposes, enforcing moral ob-
ligations; the right of taking property by descent, the legitimacy
of children; (who in France are considered legitimate, tho’ born
before the marriage, in England not:) These, and many other con-
sequences, flow from the marriage properly solemnized; are go-
verned by the municipal laws of that particular state, under whose
institutions the contracting and disposing parties live as subjects; and
by whose established forms they submit the relation to be regulated,
so far as it’s consequences, not concerning the moral obligation, are
interested. In the case of Thorn and Watkins, in which your lord-
ship was counsel, determined before Lord Hardwicke. – A man died
in England, with effects in Scotland; having a brother of the whole,
and a sister of the half blood: The latter, by the laws of Scotland
could not take. The brother applies for administration to take the
whole estate, real and personal, into his own hands, for his own
use; the sister files a bill in Chancery. The then Mr. Attorney-
General puts in answer for the defendant; and affirms, the estate, as
being in Scotland, and descending from a Scotchman, should be governed
by that law. Lord Hardwicke over-ruled the objection against the sis-
ter’s taking; declared there was no pretence for it; and spoke thus, to
this effect, and nearly in the following words – Suppose a foreigner

[16]

has effects in our stocks, and dies abroad; they must be distributed
according to the laws, not of the place where his effects were, but
of that to which as a subject he belonged at the time of his death.
All relations governed by municipal laws, must be so far dependent
on them, that if the parties change their country the municipal
laws give way, if contradictory to the political regulations of that
other country. In the case of master and slave, being no moral
obligation, but founded on principles, and supported by practice,
utterly foreign to the laws and customs of this country, the law
cannot recognize such relation. The arguments founded on muni-
cipal regulations, considered in their proper nature, have been treated
so fully, so learnedly, and ably, as scarce to offer any room for ob-
servations on that subject: Any thing I could offer to enforce, would
rather appear to weaken the proposition, compared with the strength
and propriety with which that subject has already been explained and
urged. I am not concerned to dispute, the negro may contract to serve;
nor deny the relation between them, while he continues under his
original proprietor’s roof and protection. ‘Tis remarkable, in all
Dyer, for I have caused a search to be made as far as the 4th of
Henry 8th, there is not one instance of a man’s being held a villain
who denied himself to be one; nor can I find a confession of villenage
in those times. [Lord Mansfield, the last confession of villenage
extant, is in the 19th of Henry the 6th.] If the court would ac-
knowledge the relation of master and servant, it certainly would not
allow the most exceptionable part of slavery; that of being obliged
to remove, at the will of the master, from the protection of this
land of liberty, to a country where there are no laws; or hard laws
to insult him. It will not permit slavery suspended for a while,
suspended during the pleasure of the master. The instance of ma-
ster and servant commencing without contract; and that of appren-
tices against the will of the parties, (the latter found in it’s conse-
quences exceedingly pernicious;) both these are provided by special
statutes of our own municipal law. If made in France, or any
where but here, they would not have been binding here. To punish
not even a criminal for offences against the laws of another country;
to set free a galley-slave, who is a slave by his crime; and make a
slave of a negro, who is one, by his complexion; is a cruelty and
absurdity that I trust will never take place here: Such as, if pro-
mulged, would make England a disgrace to all the nations under
earth: For the reducing a man, guiltless of any offence against the
laws, to the condition of slavery, the worst and most abject state,
Mr. Dunning has mentioned, what he is pleased to term philosophi-
cal and moral grounds, I think, or something to that effect, of sla-
very; and would not by any means have us think disrespectfully
of those nations, whom we mistakenly call barbarians, merely for
carrying on that trade: For my part, we may be warranted, I be-
lieve, in affirming the morality or propriety of the practice does not
enter their heads; they make slaves of whom they think fit. For

[17]

the air of England; I think, however, it has been gradually purify-
ing ever since the reign of Elizabeth. Mr. Dunning seems to have
discovered so much, as he finds it changes a slave into a servant;
tho’ unhappily, he does not think it of efficacy enough to prevent
that pestilent disease reviving, the instant the poor man is obliged to
quit (voluntarily quits, and legally, it seems we ought to say,) this
happy country. However, it has been asserted, and is now repeat-
ed by me, this air is too pure for a slave to breathe in: I trust, I
shall not quit this court without certain conviction of the truth of
that assertion.

Lord Mansfield – The question is, if the owner had a right to
detain the slave, for the sending of him over to be sold in Jamaica.
In five or six cases of this nature, I have known it to be accommo-
dated by agreement between the parties: On it’s first coming before
me, I strongly recommended it here. But if the parties will have it
decided, we must give our opinion. Compassion will not, on the one
hand, nor inconvenience on the other, be to decide; but the law:
In which the difficulty will be principally from the inconvenience on
both sides. Contract for sale of a slave is good here; the sale is a
matter to which the law properly and readily attaches, and will
maintain the price according to the agreement. But here the per-
son of the slave himself is immediately the object of enquiry; which
makes a very material difference. The now question is, whether
any dominion, authority or coercion can be exercised in this coun-
try, on a slave according to the American laws? The difficulty of
adopting the relation, without adopting it in all it’s consequences, is
indeed extreme; and yet, many of those consequences are absolutely
contrary to the municipal law of England. We have no authority to
regulate the conditions in which law shall operate. On the other
hand, should we think the coercive power cannot be exercised:
‘Tis now about fifty years since the opinion given by two of the
greatest men of their own or any times, (since which no contract
has been brought to trial, between the masters and slaves; ) the ser-
vice performed by the slaves without wages, is a clear indication
they did not think themselves free by coming hither. The setting
14,000 or 15,000 men at once free loose by a solemn opinion, is
much disagreeable in the effects it threatens. There is a case in Ho-
bart, (Coventry and Woodfall, ) where a man had contracted to go as
a mariner: But the now case will not come within that decision.
Mr. Stewart advances no claim on contract; he rests his whole de-
mand on a right to the negro as slave, and mentions the purpose of
detainure to be the sending of him over to be sold in Jamaica. If
the parties will have judgment, fiat justitia, ruat cœlum, let justice
be done whatever be the consequence. 50 l. a head may not be a
high price; then a loss follows to the proprietors of above 700,000 l.
sterling. How would the law stand with respect to their settle-
ment; their wages? How many actions for any slight coercion by

[18]

the master? We cannot in any of these points direct the law; the
law must rule us. In these particulars, it may be matter of weighty
consideration, what provisions are made or set by law. Mr. Stew-
art may end the question, by discharging or giving freedom to the
negro. I did think at first to put the matter to a more solemn way
of argument: But if my brothers agree, there seems no occasion. I
do not imagine, after the point has been discussed on both sides so
extremely well, any new light could be thrown on the subject. If
the parties chuse to refer it to the Common Pleas, they can give
themselves that satisfaction whenever they think fit. An applica-
tion to parliament, if the merchants think the question of great
commercial concern, is the best, and perhaps the only method of
settling the point for the future. The court is greatly obliged to the
gentlemen of the bar who have spoke on the subject; and by whose
care and abilities so much has been effected, that the rule of decision
will be reduced to a very easy compass. I cannot omit to express
particular happiness in seeing young men, just called to the bar,
have been able so much to profit by their reading. I think it right
the matter should stand over; and if we are called on for a decision,
proper notice shall be given.

Trinity Term, June 22, 1772.

Lord Mansfield – On the part of Somerset, the case which we gave
notice should be decided this day, the court now proceeds to give
it’s opinion. I shall recite the return to the writ of habeas corpus, as
the ground of our determination; omitting only words of form. The
captain of the ship on board of which the negro was taken, makes
his return to the writ in terms signifying that there have been, and
still are, slaves to a great number in Africa; and that the trade in
them is authorized by the laws and opinions of Virginia and Ja-
maica; that they are goods and chattels; and, as such, saleable and
sold. That James Somerset, is a negro of Africa, and long before
the return of the king’s writ was brought to be sold, and was sold
to Charles Stewart Esq. then in Jamaica, and has not been manu-
mitted since; that Mr. Stewart, having occasion to transact busi-
ness, came over hither, with an intention to return; and brought
Somerset, to attend and abide with him, and to carry him back as
soon as the business should be transacted. That such intention has
been, and still continues; and that the negro did remain till the time
of his departure, in the service of his master Mr. Stewart, and quit-
ted it without his consent; and thereupon, before the return of the
king’s writ, the said Charles Stewart did commit the slave on board
the Ann and Mary, to safe custody, to be kept till he should set
sail, and then to be taken with him to Jamaica, and there sold as
a slave. And this is the cause why he, Captain Knowles, who was
then and now is, commander of the above vessel, then and now
lying in the river of Thames, did the said negro, committed to his

[19]

custody, detain; and on which he now renders him to the orders of
the court. We pay all due attention to the opinion of Sir Philip
Yorke, and Lord Chief Justice Talbot, whereby they pledged them-
selves to the British planters, for all the legal consequences of slaves
coming over to this kingdom or being baptized, recognized by
Lord Hardwicke, sitting as Chancellor on the 19th of October 1749,
that trover would lie: That a notion had prevailed, if a negro came
over, or became a christian, he was emancipated, but no ground in
law; that he and Lord Talbot, when Attorney and Solicitor-Gene-
ral, were of opinion, that no such claim for freedom was valid;
that tho’ the Statute of Tenures had abolished villains regardant to
a manor, yet he did not conceive but that a man might still become
a villain in gross, by confessing himself such in open court. We
are so well agreed, that we think there is no occasion of having it
argued (as I intimated an intention at first,) before all the judges, as
is usual, for obvious reasons, on a return to a habeas corpus; the only
question before us is, whether the cause on the return is sufficient?
If it is, the negro must be remanded; if it is not, he must be dis-
charged. Accordingly, the return states, that the slave departed and
refused to serve; whereupon he was kept, to be sold abroad. So
high an act of dominion must be recognized by the law of the
country where it is used. The power of a master over his slave has
been extremely different, in different countries. The state of sla-
very is of such a nature, that it is incapable of being introduced on
any reasons, moral or political; but only positive law, which pre-
serves it’s force long after the reasons, occasion, and time itself from
whence it was created, is erased from memory: It’s so odious, that
nothing can be suffered to support it, but positive law. Whatever
inconveniences, therefore, may follow from such a decision, I cannot say
this case is allowed or approved by the law of England; and there-
fore the black must be discharged.

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