Somersett's Case, The Constitution and Common Law Rights: A Re-Appraisal
| Published date | 01 September 1996 |
| Author | Satvinder S. Juss |
| Date | 01 September 1996 |
| DOI | 10.1177/135822919600100403 |
International Journal
of
Discrimination and the Law,
1996,
Vol.
1,
pp.
335-352
1358-2291/96
$10
©
1996
A B Academic Publishers. Printed in Great Britain
SOMERSETT'S CASE, THE CONSTITUTION
AND
COMMON LAW RIGHTS: A RE-APPRAISAL
SATVINDER
S.
JUSS
School
of
Law, University
of
Westminster, UK
ABSTRACT
This article sets out to show that the popular view
of
the slave case
of
James
Somersett
as
epitomising the common law's tenderness for individual liberty is
mistaken, and through discussion
of
that case, this article seeks to shed light on the
efficacy
of
the common law
as
a vehicle for the protection
of
pluralist individual
rights in the modem world. The integrity
of
the common law is questioned when
it gives primacy to economic rights.
In
this context, there is a discussion
of
the
infamous Yorke
and
Talbot Opinion. The use
of
human rights instruments to
redress the shortcomings
of
private-right based law
is
advocated.
The eighteenth century case
of
James Somersett is one
of
the
most important decisions
of
the English common law.
It
is also argu-
ably the most misunderstood. The decision is important because it is
said to have spectacularly affirmed the common law constitutional
right to individual liberty. Somersett was a slave who escaped from
his master in 1772, was recaptured, and then put
on
board a ship
bound for Jamaica. Somersett issued a writ
of
Habeas Corpus in the
court
of
King's
Bench and was set free by Lord Mansfield in a
judgement so resounding that it has rung through the chronicles
of
time ever since. Somersett's case cannot be discussed usefully, as
some people have tried to do, except in the context
of
slavery.
To
discuss it in any other context is to misunderstand not only the case,
but the historical fact
of
eighteenth century slavery as well as the
ability
of
the common law to affirm individual rights in difficult fac-
tual circumstances.
The discussion
of
slavery is, notwithstanding its subject-matter,
insightful and timely for common lawyers. Slavery was not a passing
affair.
It
stretched over 400 years during which time it saw the emer-
gent rise
of
modem western civilisation and the corresponding
decline
of
African culture and society. Before the arrival
of
European
slave-traders, the Kingdoms
of
Africa and its city-states traded in
gold, bronze and ivory goods. Art, learning and technology flour-
ished. The impact
of
the slave trade
on
African political oganisation
336
and on its economy and society as a whole was immense. Yet, it was
only recently in October 1994 that the Merseyside Maritime Museum
in Liverpool opened Britain's first permanent exhibition gallery
on
trans-atlantic slavery and the slave trade. The aim
of
the new gallery
is to increase public understanding
of
the experience
of
Black people
in Britain and the
modem
world through an examination
of
the
African slave trade and African people around the world. It is fitting
that this first permanent exhibition should open in Liverpool.
Liverpool in 1700 had a mere population
of
5,000, which after slave
shipping boomed, had rocketed to 34,000 in 1773. Bristol, which
became Britain's second city during this period, had the dubious
fame
of
having
''not
a brick in the city but what is cemented with
the blood
of
a slave. n Paradoxically, the opening
of
the gallery in
Liverpool remains to date relatively unreported in Britain.
For
Amer-
icans,
of
course, slavery continues to resonate with contemporary rel-
evance because only recently on 16th March 1995 did Mississippi
ratify the 13th Amendment to the United States constitution abol-
ishing slavery, even though the rest
of
the U.S. did so 130 years
ago.2
This article sets out to achieve an understanding
of
slavery, but
through an exploration
of
the law and its doctrines, on this troubled
and troubling subject which has been too long ignored by human
rights lawyers in Britain. What emerges is that, whereas the afore-
mentioned socio-economic and political facts
of
the slave trade may
be quite clear-cut, the legal position remains ambivalent. As a result
the common
law's
sanctioning
of
slavery has never been candidly
recognised
by
its proponents who have championed its inherent capa-
city to protect human rights, insisting on the case
of
James Somersett
as the leading judicial proclamation vindicating the common law bias
in favour
of
individual liberty. The ambivalence is not just
of
histor-
ical interest.
It
has implications for the future. In a world that is
increasingly multi-cultural and pluralist the emphasis on protection
of
rights has decidedly shifted from individual rights to group interests.
3
There is a new jurisprudential discourse on rights which are other
than those
of
the individual. These rights are the rights
of
peoples.
4
The question is whether the common law can meet this new chal-
lenge
or
whether it is redundant here because it carries too much his-
torical baggage. In the past the common law saw it better to promote
economic rights than · to promote equality
of
rights based on a
common human dignity.5 The common law attitude there makes
manifestly plain that it is ill-suited to respond to the new demands
of
minority rights, ethnicity and immigration,6 which require a human
rights framework.7
This article first considers the background to English slavery,
then the importance
of
slavery to the West India interest, and finally
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