Somerset against Stewart
| Jurisdiction | England & Wales |
| Judgment Date | 14 May 1772 |
| Date | 14 May 1772 |
| Court | Court of the King's Bench |
English Reports Citation: 98 E.R. 499
IN THE COURT OF KING'S BENCH, CHANCERY AND COMMON PLEAS
[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 complainant 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 Captain Knowles, detained against his consent; until returned in obedience to the writ. And under this order, and the facts stated, Captain 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 impertinent; as it is not easy for a causa 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 Lordships the solicitude with which I rise to defend it; and however unequal I feel myself, will command attention. I trust, itideed, this is a cause sufficient to support my own [2] unworthiness by its single intrinsic merit. I shall endeavour to state the grounds from which Mr. Stewart's supposed right arises; and then offer, as appears to me, sufficient confutation to his claim over the negro, as property, after having him brought over to England ; (an absolute and unlimited property, or as right accruing from contract;) Mr, Stewart insists on the former. The question on that is not whether slavery is lawful in the colonies, (where a concurrence of unhappy circumstances has caused it to be established as necessary;) but whether in England1? Not whether it t Vita reipublicuj pax, et animi libertas et libertatis, firmissimum propugnaculum sua cuique doraus legibus munita. * Ut poena ad paucos, metus ad omnes pertingat, Judicandum est legibus nou exemplis. 500 SOMERSET V. STEWART LOFFT.3. ever has existed in England ; bub whether it be not now abolished 1 Various definitions have been given of slavery : one of the most considerable is the following; a service for life, for bare necessaries. Harsh and terrible to human nature as even such a condition is, slavery is very insufficiently defined by these circumstances-it includes not the power of the master over the slave's person, property, and limbs, life only excepted ; it includes not the right over all acquirements of the slave's labour ; nor includes the alienation of the unhappy object from his original master, to whatever absolute lord, interest, caprice or malice, may chuse to transfer him ; it includes not the descendible property from father to son, and in like manner continually of the slave and all his descendants. Let us reflect on the consequences of servitude in a light still more important. The corruption of manners in the master, from the entire subjection of the slaves he possesses to his sole will; from whence spring forth luxury, pride, cruelty, with the infinite enormities appertaining to their train ; the danger to the master, from the revenge of his much injured and unredressed dependant; debasement of the mind of the slave, for want of means and motives of improvement; and peril to the constitution under which the slave cannot but suffer, and which he will naturally endeavour to subvert, as the only means of retrieving comfort and security to himself.-The humanity of modern times has much mitigated this extreme rigour of slavery; shall an attempt to introduce perpetual servitude here to this island hope for countenance 1 Will not all the other mischiefs of mere utter servitude revive, if once the idea of absolute property, under the immediate sanction of the laws of this country, extend itself to those who have been brought over to a soil whose air is deemed too pure for slaves to breathe in it; but the laws, the genius and spirit of the constitution, forbid the approach of slavery ; will not suffer it's existence here. This point, I conceive, needs no further enlargement: I mean, the proof of our mild and just constitution is ill adapted to the reception of arbitrary maxims and practices. But it has been said by great authorities, though slavery in its full extent be incompatible with the natural rights of mankind, and the principles of good government, yet a moderate servitude may be tolerated ; nay, sometimes must be maintained. Captivity in war is the principal ground of slavery : contract another. Grotius De [3] J. B. & P. and Pufendorf, b. 6, c. 3, 5, approves of making slaves of captives in war. The author of the Spirit of Laws denies, except for self-preservation, and then only a temporary slavery. 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 defensible, and rests on quite different foundations. Domestic slavery, the object of the present consideration, is now submitted to observation in the ensuing account, its first commencement, progress, and gradual decrease: it took origin very early among the barbarous nations, continued in the state of the Jews, Greeks, Romans, and Germans ; 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 inhabitants grew enlightened and civilized, in the 8th century; its decay extended over Europe in the 4th; 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 attempt, 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 service; 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 prescription 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 : certainly 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 commenced here, LOFFT,4. SOMERSET V. STEWART 501 much more when imported. If these are true arguments, they reach the King himself as well as the subject. Dr. Rutherforth 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 of 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 afterwards 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. C'hamberlayne 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 America, 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 America. 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 cautiously, 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...
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Table of cases
...161 (1989) (Eur Ct Hum Rts) .................................................................. xxi, 590, 591, 593 Sommersett v Stewart (1772), 98 ER 499 (KB) ..................................................348 Sriskandarajah v United States of America, 2012 SCC 70 ..............................
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Table of Cases
...(1989) (Eur. Ct. Hum. Rts.)...................................................................... xxi , 500, 503 Sommersett v. Stewart (1772), 98 E.R. 499 (K.B.) .............................................. 288 Stakić (IT-97-24-A), Appeals Chamber Judgment, 22 March 2006 (Int’l Crim. Trib......
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Table of cases
...(1989) (Eur Ct Hum Rts).......................................................................... 533, 534, 541 Sommersett v Stewart (1772), 98 ER 499 (KB) ............................................ 309– 10 Sriskandarajah v United States of America, 2012 SCC 70 .................................