Mansfield’s Somerset Decision
James Somerset v. Charles Stewart in 1772 was a landmark case that affirmed Parliament’s supreme legislative authority throughout the Kingdom just four years before the Declaration of Independence. Unfortunately, Taney’s opinion for the majority of the Supreme Court ignored the adoption of Anglo-Saxon jurisprudence and English law by the U.S. Congress and the Somerset decision, which found slavery was not “allowed or approved by the law of this Kingdom” and, in effect, affirmed parliamentary sovereignty. Mansfield’s decision was the final word on judicial matters concerning British colonies throughout the Kingdom, and this decision caused the immediate emancipation of 15,000 enslaved black people living in England and Wales.
James Somerset, an enslaved colonial-born black man, was living in London, and he ran away on October 1, 1771, and was hunted down and captured, where he was placed on the slave ship Ann & Mary, commanded by Captain John Knowles. Somerset was scheduled to be sold in Jamaica and destined for hard labor in the sugar fields, an assured death sentence.
Lord Chief Justice Mansfield of the Court of the King’s Bench issued a writ of habeas corpus, commencing the landmark case of James Somerset v. Charles Stewart and initiating a judicial review of colonial America’s slave statutes and hereditary slave laws. Mansfield, sensitive to public perception—especially given that he and his wife were raising his bi-racial grandniece Belle in his home—sought to pressure a settlement to avoid a definitive ruling from England’s highest Court. To underscore the gravity of the matter, he impaneled a tribunal of twelve judges for a solemn decision declaring, “Let justice be done although the heavens fall.”
On June 22, 1772, Mansfield delivered the judgment of the twelve Judges, emphasizing the protection of individual liberty provided for in Parliament’s English Bill of Rights of 1689.
Mansfield found: “The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, and instead, only by positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created is erased from memory. It is so odious that nothing can be suffered to support it but positive law. Whatever inconveniences, therefore, may follow from a decision, I cannot say this case is allowed or approved by the law of this Kingdom, and therefore, the black must be discharged.” Thus, Mansfield told the whole of the British Empire that black colonials were entitled to liberty.
When Abraham Lincoln became president, his Emancipation Proclamation in 1863 made all Negroes in the Confederate States that were still in rebellion against the Union, free people by executive order. This did include my great-grandfather, George “Wash” Peete, born into slavery in Tipton County, Tennessee, in 1862, as Tennessee was in rebellion against the Union. However, it was only with the end of the Civil War and the enactment of the 13th, 14th, and 15th Amendments in 1865 that my ancestors and other enslaved people throughout the United States were finally freed. However, these amendments did not overturn the infamous Dred Scott decision of 1857.
The Dred Scott decision, despite compelling evidence to the contrary—and the Supreme Court’s apparent misapprehension of the actual legislative history of colonial slave statutes and “negro laws,” and the complete denial of procedural due process to the 500,000 black individuals enslaved after the Treaty of Paris in 1783, Taney found that the U.S. Declaration of Independence never intended to include or acknowledge “the class of person who had been imported as slaves nor their descendants,” and “the negro might justly and lawfully [be] reduced to slavery for his benefit,” which is still good law. Republicans, abolitionists, and other well-meaning individuals should have collectively sought to overturn the Dred Scott decision on the merits during the 1850s, but they did not.
The emancipation of enslaved individuals in the United States in 1865 was akin to a presidential pardon, which only commuted the sentence and condition of each person suffering as a slave in America. Further, like a presidential pardon, it did not alter verdicts or court judgments, and public opinion remained unchanged.
Additionally, ending slavery without providing financial assistance to the newly freed individuals was shortsighted, insensitive, and morally wrong. Thus, the Republican-led mission to end black slavery and realize America’s creed—“all men are created equal” was not fully achieved even after the enactment of the 13th, 14th, and 15th Amendments by Congress.
But, perhaps the most prescient observation and commentary on this very point was abolitionist Wendell Phillips, speaking around 1866, who made the provocative and powerful observation:
“We have abolished the slave, but the master remains.”
At the time, many viewed Phillips’ words as overly cynical, but 159 years later, his perspective has proven strikingly accurate and accurate. The enduring impact of the Dred Scott decision and the immediate struggles faced by freed black individuals after 1865, continuing to the present day, validates Phillips’s concerns. Freed black individuals and their descendants have faced rampant discrimination, systemic economic disadvantages, and hindered progress due to institutionalized racism, underscoring the validity of Phillips’s warning.
In The Atlantic in 2014, Ta-Nehisi Coates wrote an essay titled The Case for Reparations, positing that America stole wealth from blacks, denied them a fair shot at prosperity, and denied black freemen equal citizenship. The Thirteenth Amendment abolished slavery in 1865, freeing 4,000,000 blacks.
Still, because of their lack of literacy and sophistication, as well as repression by many who were former slavemasters, in addition to Jim Crow laws, racist court systems, and sharecropping, most were unable to gain a foothold in America’s post-Civil War economy. Coates observed that slavery merely evolved, stating that “one cannot escape the question by hand-waving at the past, disavowing the acts of one’s ancestors, nor citing a recent date of ancestral immigration.”
Coates observed in his essay that a “nation outlives its generations. We were not there when Washington crossed the Delaware, but Emanuel Gottlieb Leutze’s rendering has meaning“ and “If Thomas Jefferson’s genius matters, then so does his taking of Sally Heming’s body. If George Washington crossing the Delaware matters, so must his ruthless pursuit of the runagate Oney Judge.”
Sally Hemings and Oney Judge, born in Virginia in 1773, were the daughters of white English fathers and became slaves at birth due to lawlessness and racial repression as Virginia’s hereditary slave law of partus sequitur ventrem had been legislatively abolished by Parliament’s Declaratory Act of 1766. As the Somerset decision had already declared slavery was not “allowed or approved by the law of the Kingdom” in 1772, they were born legally free black Englishmen. Virginia’s nullified hereditary slave law, enacted in 1661 by the House of Burgesses—its colonial assembly had dictated that a child’s status followed that of the mother. However, Virginia’s colonial assembly enacted this law without securing the approval of England’s King, as mandated by the colonial charter, and it never became a codified colonial law.
This hereditary slave law was a legislative overreach on the part of Virginia’s colonial assembly as this legislative body failed to secure the assent of England’s monarch, violating Virginia’s colonial charter, and they pretended as if it was a codified law. Purporting to exercise legislative authority that it did not possess violated the Royal Assent by Commission Act of 1541, and it put Virginia’s colonial assembly in violation of its colonial charter and English law, rendering the legislation void ab initio. According to English law, “a void act does not become good with the passage of time.”
Parliament passed the English Bill of Rights of 1689, which outlined specific rights and established certain constitutional principles, including parliamentary sovereignty and protection for individual rights of all Englishmen, such as the right to habeas corpus—the prohibition of cruel and unusual punishment—which lifelong slavery at birth undoubtedly qualified.
Furthermore, in 1766, the British imperial government abolished all legislation enacted in the American colonies which denied or questioned the supreme legislative authority of the British Parliament and its parliamentary sovereignty. Naturally, this included Virginia’s hereditary slave law, partus sequitur ventrem, as a matter of English law since only Parliament had the legislative authority to enact positive law to legalize slavery in the British Kingdom.
Virginians Thomas Jefferson and George Washington were legally liable and accountable for placing these English individuals in a state of human slavery since their claims of legal ownership of the colonial-born individuals Sally Hemings and Oney Judge were baseless under English law, given the principle that “ignorance of the law is no excuse for violating it.”
Further, by the end of the American Revolution in 1783, both Jefferson and Washington knew with legal certainty that Virginia’s hereditary slave law of partus sequitur ventrem was “utterly null and void for all purposes whatsoever.” This was because Virginia’s House of Burgesses—a colonial assembly, had not lawfully codified this hereditary slave law, and even if Virginia’s hereditary slave law had been properly codified during colonial times, Parliament’s Declaratory Act of 1766 abolished colonial slave statutes and “negro laws” and in 1772 the Somerset decision affirmed the supreme legislative power of the Parliament and that slavery was unconstitutional in the Kingdom.
Moreover, on January 14, 1784, the United States ratified the Treaty of Paris of 1783, an international agreement with Great Britain in which the U.S. agreed to set at liberty all British subjects. This treaty provision was binding on all Americans. According to English law adopted by the United States and the state of Virginia, Sally Hemings and Oney Judge were freeborn British subjects. They were entitled to liberty once the Treaty of Paris of 1783 was ratified by Congress in 1784. All repugnant colonial slave statutes and “negro laws” had been legislatively abolished under Parliament’s Declaratory Act of 1766.
Hemings and Judge, born in Virginia in 1773 to white English fathers, were freeborn English subjects under English law. Further, the common law tradition of jus soli was an inalienable grant of British subjecthood unto all children born in the colony of Virginia that could not be repealed, ignored, or modified by Virginia’s colonial assembly. Moreover, the British imperial government legislatively abolished Virginia’s hereditary slave law of partus sequitur ventrem through its Declaratory Act of 1766 because it denied and questioned the supreme legislative authority of the British Parliament and its parliamentary sovereignty.
Consequently, as Hemings and Judge’s birth years occurred seven years after the abolition of all colonial slave laws and its hereditary slave law of partus sequitur ventrem in 1766 and a year after the landmark Somerset decision of 1772, which declared colonial slavery was not “allowed or approved by the law of this Kingdom” and could only be legal if enacted by “positive law,” a legislative power held exclusively by Parliament—parliamentary sovereignty, both black colonials were legally free English subjects.
The claim that Hemings and Judge were born free in colonial Virginia in 1773 is supported by the self-executing nature of England’s Court of the King’s Bench ruling in the Somerset case. This ruling declared that the “state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, and instead, only by positive law,” a principle that remained in effect long after the original reasons for its creation are forgotten.
As a Crown colony, Virginia’s Legislature and its colonists were bound by its colonial charter to English law and the unanimous decision of His Majesty’s King’s Bench in 1772, which oversaw Britain’s Privy Council, which oversaw colonial America’s legislatures. Therefore, the Somerset decision was conclusive and was the law of the land throughout colonial America. It required no additional colonial legislation or court action to be enforced. Mansfield’s Somerset decision did not need ratification by Virginia’s legislature to be effective and be the law in colonial America.
Parliament enacted the British Nationality Act of 1730 during colonial times. This Act supplemented a 1350 statute of Parliament that declared that children born outside the dominions of the British Crown would be considered natural-born subjects. Blacks born in British colonial America were Englishmen by birth under this Act. They were deemed “children of the King” protected by Parliament’s “statute for those who are born in Parts beyond Sea.” Further, in this regard, Virginia’s House of Burgesses, the lower House of its legislative structure, meant the hereditary slave law of partus sequitur ventrem was in direct conflict with Parliament’s 1350 and 1730 Acts.
Virginia’s colonial assembly’s hereditary slave laws violated its colonial charter and Parliament’s Royal Assent by Commission Act of 1541. Virginia’s slave statutes and negro laws were void ab initio since the Virginia legislature did not have the legislative power to authorize slavery in this British colony or the legislative power to change or ignore the patrilineal descent tradition of partus sequitur patrem. Ashby v. White (2 Ld. Raym 938) (1703) “a void act does not become good with the passage of time.”