The ethnic group Afro-Englishmen… born in the North American colonies during colonial times and Africans brought to the North American colonies who were lawfully conferred British subjecthood during colonial times by the British predates the rise of the United States, by six to seven generations. Slavery was prohibited on English soil and the North American colonies when the first Africans arrived on Virginia’s shores in 1619. They were not slaves… but indentured servants who became British subjects. Also, under English law… their children who were born in North American colonies were Englishmen by birth. However, this ethnic colonial group of Englishmen were institutionally attacked, exploited, and suffered under colonial tyranny when Virginia’s House of Burgesses in 1660 passed a colonial statute purporting to legalize slavery and in 1662 passed another colonial statute called partus sequitur ventrem… a hereditary slave law purporting to change the patrilineal descent system. These colonial statutes never became positive law since Virginia’s legislative assembly did not have plenary power to enact either law. Also, neither of the colonial statutes had the King’s assent.
History supports, the colony of Virginia was bound by colonial charter to prohibit slavery on its soil and Virginia’s House of Burgesses suffered under a bicameral legislative system that required the King’s assent on any colonial statute. The withholding of plenary power to enact laws and requiring the King’s assent on any colonial statute were the same for all of the North American colonies and none successfully enacted a colonial statute that legalized slavery. Nonetheless, slavery became endemic throughout the North American colonies due to graft, corruption, and a culture of hooliganism. The practice of slavery became an extralegal institution and Afro-Englishmen suffered during colonial times. England’s Court of the King’s Bench had original jurisdiction to “correct all crimes and misdemeanours that amounted to the breach of the peace, the King being then plaintiff, for such were in derogation of the Jura regalia; and to take cognizance of everything not parceled out to the other courts”.
England’s common law conferred habeas corpus protections upon everyone within His Majesty’s Kingdom and Smith versus Browne & Cooper of 1702… was controlling precedent. The Smith court ruled… “as soon as a negro comes to England—he is free; one may be a villien in England, but not a slave.” Yet, Lord Mansfield was showing concerns… but it was not about the law, rather, it was the far-reaching implications and consequences of him resolving the James Somerset versus Charles Stewart case in favor of petitioner Somerset. Doubtlessly, the implications and consequences would be far-reaching since England’s economy had become financially dependent upon exports from the North American colonies and driving those exports were the southern colonies robust, extralegal slave-based economy. Simply, Lord Mansfield was being cautious based upon his family situation as he and his wife were caring for a bi-racial niece named Dido Belle who was born a slave under the colony of Jamaica’s hereditary slavery law. She was the out of wedlock child of his nephew John Lindsay and lived in his family’s home… Kenwood House. Lord Mansfield was certain that this aspect of his life would be politicized and exploited if he presided solely over this case.
Further, Lord Mansfield knew that the countless years of exploitation and plunder of Afro-Englishmen and Africans had placed them outside the rule of law. This he surmised created structural racism that was culturally accepted, pervasive, and Kingdom-wide. Such was the reason why he referred the Somerset case to the Twelve Judges of the Court of the King’s Bench for adjudication. The Twelve Judges procedure as it was called was used to address major points of law, such as conflict of laws questions surrounding colonial statutes and to interpret statutory words. Decisions made by the Twelve Judges had kingdom-wide effect and established precedents and procedures that would govern like cases throughout the Kingdom. Decisions by the Twelve Judges constituted law-making in two additional ways: (1) they settled the meaning and limits of statutory language as it applied to a fact situation and (2) they established controlling rules of procedure and evidence.
The backstory of the James Somerset case began in 1760 when the Englishman Charles Stewart, a customs officer purchased a Virginia-born person, enslaved at birth named James Somerset as his man-servant in Boston, Massachusetts. He spelled his surname with a double “T” but the common spelling only had one “T”. Then in the spring of 1769 Somerset was taken to London, England but by the fall of 1771 he surreptitiously left Stewart’s service, abandoning involuntary servitude in search of freedom. But when he was captured in late November of 1771, he realized… freedom was not free. Somerset was beaten and then imprisoned upon the ship Ann & Mary, bound for Jamaica, where few survived.
Jailed on a slave ship was a radical reversal of fortune for Somerset. And he was deeply regretting his decision to become a runaway, as conditions on this slave ship were wretched and inhumane. The slave ship Ann & Mary was wickedly putrid. The slaves were enclosed under grated hatchways between decks. The hull had been divided into holds with little headroom to allow for the transport of as many slaves as possible. The space was extremely low, dark, and sectioned. There was so little space, the captives sat between each other’s legs. Being stowed so closely, with excrement everywhere, there was no motivation for anyone to lie down or to change positions. And although the ship was equipped with air scuttles, ports, and open grating… the air was foul. There were just too many people… in too small of an area and only one bucket per row of slaves. Only slaves that were close to the bucket could use it… the others could not. So, the slave decking was covered with human excrement and the stench of human waste overwhelmed the senses. Somerset endured foul air, no sanitation along with the Africans and given the conditions aboard this ship… he’d yet to have a good night’s sleep.
Further, as a punitive measure Stewart engaged Captain John Knowles to sell Somerset in Jamaica, as a sugar plantation laborer. But Somerset’s godparents, Elizabeth Cade, John Marlow, and Thomas Walkin became aware of his plight, and they petitioned the Court of King’s Bench for relief and were granted a writ of habeas corpus. The habeas writ caused a hearing before Lord Chief Justice Mansfield on December 9, 1771. And at the habeas hearing, Stewart opposed granting Somerset his freedom based upon Virginia’s hereditary slave law partus sequitur ventrem… but Somerset’s lawyer disagreed arguing that slavery was a legal fiction in colonial Virginia and English law controlled. And even if Virginia’s legislative assembly had enacted a hereditary slave law in 1662, any such law was not “positive law” in the absence of the King’s assent and doubly so, as Parliament had subsequently enacted the English Bill of Rights and the Petition of Rights and the Habeas Corpus Act of 1679. The contested habeas matter was scheduled for a trial on the merit and before the Twelve Judges of this high court.
According to Lord Mansfield, the justiciable issue before the tribunal was “… Whether any dominion, authority or coercion can be exercised in this country, on a slave according to the American law?” The extralegal practice of slavery, first started in the colony of Virginia had become endemic throughout the American colonies and elsewhere during the 17th century and became the basis for the creation of great wealth in the British Empire. England did not legalize slavery, but through colonial appointments and England’s policy of salutary neglect… the practice was informally endorsed. The colonial legislature was bicameral with the Crown. However, the Crown never gave his formal assent to make slavery positive law and this failing or reluctance was an enduring source of friction during the run up to the American Revolution. The public flocked to Somerset’s habeas corpus trial that began in February 1772. Somerset’s petition for a writ of habeas corpus was based upon a constitutional right available to anyone within the Kingdom to forestall seizure, deportation, and sale because they were not chattel, or mere property, they were servants and thus persons invested with certain constitutional protections. There were subsequent hearings on May 4, then another hearing on May 14 when Lord Mansfield on behalf of the en banc panel of justices urged Stewart to settle with Somerset, stating that if “he shall insist on demanding judgment, we shall not fail to give it faithfully, however irksome and inconvenient”. Slave master Stewart refused to settle with Somerset.
The case was postponed until June 22, 1772 and additional arguments were heard. Afterward, the tribunal took a recess to deliberate. Lord Mansfield reappeared on behalf of the Twelve Judges and he delivered their unanimous verdict: “… The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political, but only by positive law… It is so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore may follow from the decision, I cannot say this case is allowed or approved by the laws of this Kingdom; and therefore the black must be discharged.”
The tribunal held that American slave law… in particular the colony of Virginia was not “allowed or approved by the laws of this Kingdom”… and was not “positive law”. In this respect, all colonial slave statutes became void by operation of English law. All former slaves returned to status quo ante by operation of law as the Court of the King’s Bench had original jurisdiction over the American colonies. Under British rule of law this was the legal consequence of Somerset Decision, even though slaveholding colonists refused to release black colonists. The Twelve Judges’ ruling that slavery was not authorized in this Kingdom was dispositive, as American law was before His Majesty’s King’s Bench. Under English law… colonial statutes were not positive law, so slaveholding colonials could not point to positive law that recognized their powers, as a slave owner over their alleged slave. This was a disquieting problem for slave profiteers and masters. Thus, the Somerset Decision created major legal hurdles for the extralegal practice of buying, selling, discipling, and substantiating slave ownership within the North American colonies, as colonial legislative assemblies had no plenary power to enact positive law. The Somerset Decision ended colonial slavery and it stands for the proposition that English courts would not uphold a slaveholder’s claim of ownership of a slave, in the absence of positive law. This created a conundrum for colonial slaveholders out of favor with the British.
Colonial newspapers such as the Boston Gazette heralded; “Emancipation came to English slaves when Mansfield, supposedly, declared that slavery was ‘so odious, that nothing can be suffered to support it, but positive law’ enacted by Parliament.” The case created a sensation, especially in the slaveholding southern colonies. Slaveholding colonists realized that slavery had lost its veneer of legitimacy and slaves might be freed any day. Varied legal historians have observed that the Somerset Decision of 1772 was English law within the American colonies and it became part of American common law. Further, two years earlier in James v. Lechmere (Mass.Superior Ct. 1770) a colonial court had already come to the same conclusion as the Court of the King’s Bench in the Somerset case. History supports, the Somerset Decision ultimately shaped the federal system in the United States, making slavery here a product of state, not federal, statutory law. This allowed runaway slaves in the United States to claim legal protection if they escaped to a non-slaveholding state.
Preponderance
The Somerset Decision in 1772 transformed all putative slave owning colonists within the American colonies into criminals under English law. Having been in partnership with England for generations and committed to protecting their wealth and ill-gotten gains, men of the colony of Virginia and other like-minded men conceived and belatedly instigated the formation of a Congress, comprised of all thirteen North American colonies.