On the morning of November 28, 1771, Lord Chief Justice Mansfield denied a renewed motion for judgment by the plaintiff Lewis to assess sanctions against Stapylton. Yet, later that day, Mansfield issued a writ of habeas corpus to John Knowles, captain of the Ann & Mary, on which James Somerset, a slave, born in the colony of Virginia was “confined in irons.” The slave master Charles Stewart directed Somerset to be sold to a sugar plantation for hard labor. Somerset had escaped… but he was recaptured by the end of November and in Knowles’s custody heading for Jamaica. Somerset’s three godparents from his baptism as a Christian in England, John Marlow, Thomas Walkin, and Elizabeth Cade, made the petition on behalf of Somerset.
Captain Knowles of the slave ship produced Somerset before Lord Mansfield of the King’s Bench, and the return to the writ stated the following material points. There were “Negro slaves” in Africa. Slave trade with Africa was necessary to supply slaves to the colonies. By colonial law, slaves were “saleable and sold” in that trade as goods and chattels, and when purchased were “slaves” and saleable “property.” The writ claimed that as Somerset, “a negro” was bought in Virginia and sold to Charles Stewart, he was not entitled to liberty.
During five days of hearing… Somerset’s counsels made virtually every conceivable argument again the legality of slavery in England. Somerset’s counsel attacked the lawfulness of colonial slavery and the slave trade, presenting a range of further arguments that challenged both institutions’ legality. They argued that slavery was contrary to natural law and there was no right of permanent enslavement. They argued that slavery was inconsistent with Christianity and inconsistent with inherent limits on the right to contract.
In response, counsel for Stewart argued English law authorized slavery in England because villeinage, its equivalent, was still legally permissible. They falsely argued 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. Lastly, they argued that a decision emancipating slaves who came to England would endanger colonial slavery.
At the close of argument, Mansfield stated that if the parties chose to proceed to verdict in this case, “judgement should be given according to the strict letter of the law… without… power to attend to… compassion… or the danger of precedent… fiat justitia ruat coelum…” He then announced that “though his brothers on the Bench should be unanimous, [the case] required… [a] consultation… among the twelve judges…” London’s May 26, 1772 newspaper The Gazetteer reported that Justice Ashhurst’s notes, one of the twelve judges, that Mansfield rejected “the idea of a contract of service” because the owner insisted on the power to use force to send Somerset abroad for sale; that complete liberty for English slaves would cost owners 700,000 pounds, and he’d listed as unacceptable consequences… the power of killing or enslaving their posterity.
The West Indian slaveholding interests controlled and financed the defense, and they wanted a definitive legal ruling to resolve the uncertainty regarding their colonial property interests. And on June 22, 1772, Lord Mansfield delivered the Somerset decision which granted liberty to Somerset, holding “[T]he 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,” acknowledging parliamentary sovereignty over colonial America. Then the tribunal, perhaps relying upon the Declaratory Act of 1766 that legislatively avoided all colonial slave statutes and related regulations in colonial America, made the judicial determination slavery was not “allowed and approved by the laws of this Kingdom.” This judicial determination by the Twelve Judges in the Somerset case confirmed that Parliament had never allowed and approved slavery within Great Britain. The legal and binding precedent of the Somerset’s positive law holding and the fact that the Patriots formally adopted English law after the Declaration of Independence made all “colonial statutes” legal nullities, as slavery became a creature of positive law.
The Somerset decision created a positive law framework for slavery while protecting the colonial status quo. The decision devalued slave property and did as much damage to the legitimacy of the slaveowners’ position as possible, short of an outright ruling against colonial slave practices. And while Lord Mansfield had promised “to let justice be done although the heavens fall” for one side or the other, the decision entirely ignored both Somerset’s counsel’s contentions and their authority that he did not need to emancipate all slaves similarly situated in the Kingdom causing many scholars to conclude that the Somerset decision was a mixed-bag… a compromise designed to defuse the politically dangerous slavery issue. However, the argument that colonial slave statutes were legislatively rendered null and void by Parliament’s Declaratory Act of 1766 was never argued by Somerset’s counsel. Nonetheless, as Somerset’s counsel broadly questioned the legality of colonial slave statutes during the trial… it was an inquiry properly before Mansfield’s tribunal, and if the Twelve Judges took judicial notice of the Declaratory Act, colonial slave statutes and laws within the American colonies were “utterly null and void to all intent and purposes whatsoever.” It is a strong inference from the political circumstances. From the structure of the decision itself, Mansfield accepted that his judgment would be misinterpreted on emancipation and slave status as the necessary price of political peace in the Kingdom. Having accepted that price, Mansfield was not about to publicly articulate his reasoning or resolve the uncertainty on these points once controversy began. This positive law holding held sweeping implications for imperial politics and colonial slave practices, which churned ahead unaffected.
Mansfield’s tribunal adopted the position advocated by Somerset’s counsel. It necessarily rejected the opposing position advocated by Stewart’s counsel that English statutes passed in support of the slave trade, or those governing slavery in the colonies, authorized slavery in the Kingdom. Lastly, the Somerset tribunal rejected Stewart counsel’s other argument that villeinage could provide a legal basis for English or colonial chattel slavery. Nonetheless, this was a nail in the coffin of colonial slavery, and colonial slaveowners understood it as such, mainly accounting for the concerted and immediate attacks on the judgment after it was announced.
Doubtlessly, the positive law holding made the King’s Bench’s decision plain, and it had significant implications for colonial America. Firstly, if positive law was required to support English slavery, and there was, as the tribunal concluded, no positive law, then chattel slavery was unlawful in the Kingdom. Thus, slavery could never be lawful in colonial America. This apparent equivalence between a requirement of “positive law” to authorize slavery and a common-law prohibition on slavery, the latter was the threshold position advocated by Somerset’s counsel. Secondly, the positive law holding observes that slavery in every country had always originated from positive law. The tribunal meant either statute or its equivalent, immemorial usage or custom. To this end, the holding applied to both England and its colonies, a sweeping application that was unnecessary to the Somerset decision if the verdict applied only to slavery in England. Thirdly, England’s Parliament legislatively avoided colonial slave statutes and laws by way of the Declaratory Act of 1766, transforming slavery into a criminal practice
In the aftermath of the Somerset decision… the Continental Congress was created. The Somerset decision in 1772 caused slaveholding colonists to lose confidence and faith in continuing their scheme of hereditary slavery with British government officials. Losing confidence and trust caused their relationship to deteriorate, and relatively soon, the same slaveholding colonists changed sides and were found spearheading a push for independence. And it gave the 13 colonies a common grievance against the British: the Somerset decision, creating an impetus for rebellion.
The Somerset decision being coupled with Parliament’s Declaratory Act of 1766, which avoided colonial slave statutes and related regulations, caused a conundrum for northern colonials. Northern colonists knew to a legal certainty that all colonial statutes and related regulations authorizing slavery were null and void. This caused a form of dissonance as they had willfully embedded slavers into their rebellion, and without doubt, such people were criminals under the rule of law. For example, William Franklin, son of Benjamin Franklin and royal governor of the Province of New Jersey, remained loyal to the Crown throughout the resulting War. The essence of much of the angst was that northern patriots found themselves compromising their political and moral values that all humans were created equally free. The government, therefore, needed the consent of the governed. Many found slavery and the act of supporting slavery by throwing in with slaveholding colonials an anathema and plain wrong.