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April 28, 2005

The legal roots of abolition

Most African Americans are aware of the 13th Amendment to the U.S. Constitution which ended slavery everywhere in the country. However, few are aware of the Somerset case which energized the anti-slavery movement in England and the United States.

Prior to the Declaration of Independence, the 13 original states were colonies of Great Britain. They were, therefore, governed by British law except for local matters which were considered to be municipal law. Even after July 4, 1776 the English common law was relied upon in the emerging American jurisprudence.

Slaves in England had tried to gain their freedom with mixed results prior to the decision in the Somerset case on June 22, 1772. Some judges had ruled that Africans who had been baptized as Christians could not be enslaved. Others had simply asserted that breathing British air was inconsistent with the status of slavery. These cases were ultimately overruled by higher authority.

There was a line of cases which much like the southern United States of that day held blacks were property. Runaway slaves were required to be returned much like a stolen horse or cow.

It was so offensive to equate human beings with animals that clever lawyers would sue for the recovery of errant slaves under the commercial law. They asserted that a contractual obligation existed for the runaway to perform services for the master, and the runaway was in breach of the agreement.

The concept of enslaving Englishmen was in disfavor because of the quasi-slavery that was permitted under the feudal system. So called villeins were essentially the property of the barons. However, by the 18th century no case asserting such a right over a civilian had succeeded.

Most of the cases to free slaves arose when a plantation owner or merchant from the West Indies or America traveled to London with a servant. The question became whether the black’s status as a slave survived after he set foot on English soil. If the court ruled that he became instantly free even for a moment then he was free forever.

Charles Steuart, a high-ranking colonial official from Virginia, came to London with his trusted man servant, James Somerset. After Somerset fled and refused to return, Steuart had him kidnapped and taken to a ship headed for Jamaica to be sold as a slave.

Anti-slavery activists in London obtained a writ of habeas corpus to free Somerset. In a famous trial before the highly regarded judge, the Earl of Mansfield, the issue of the status of slavery in England was finally resolved. Mansfield ruled that slavery “… is so odious that nothing can be suffered to support it but positive law.”

By that Mansfield meant there must be an affirmative and specific statute to enforce slavery. Custom or common law are insufficient. Before passage of the Fugitive Slave Act, states with no statute authorizing slavery would rely on the Somerset case to free slaves who were traveling there with their masters.

There is a long history of efforts to use the rule of law to end slavery and achieve equality. According to Steven Wise in his book “Though the Heavens May Fall,” Steuart vs. Somerset is “the landmark trial that led to the end of human slavery.”

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