The King’s Bench
By William F. O’Brien and Vance Winningham

In 1771 a court case was initiated in England that was to begin the process of ending slavery in the British Empire.

James Somerset was a slave who belonged to an American who was living in London, Charles Stewart. Somerset had been purchased in America by Stewart and had been brought to the British capital by him. After several years in London, Somerset ran away, and Stewart hired people who were able to locate and return him. Stewart had been angered by Somerset’s departure and sold him to a plantation owner in Jamaica. Somerset was placed on a ship that would take him to that Caribbean island.

An individual who was active in the anti-slavery movement in England at that time, Granville Sharp, caught wind of Somerset’s impending departure and filed a writ of habeas corpus in the King’s Bench court alleging that Somerset was being held illegally aboard the vessel that was to transport him. The presiding judge on the King’s Bench at that time was a brilliant jurist who has been described as the “father of modem commercial law,” Lord Mansfield. As set forth in a recent account of the Somerset case, “Let the Heavens Fall,” by Stephen Wise, 18th Century England had become a great commercial power, and her merchants sold goods and services throughout the world. The antiquated British Common Law was based on decisions and customs from previous times and did not address many of the legal questions that were arising out of inter-national commercial transactions.

It fell to Mansfield and his colleagues to help construct a legal regime through their rulings that would incorporate practices and procedures that would protect the rights of all of the parties involved. To further that goal, Mansfield often sought advice in court from merchants who were referred to as “Mansfield’s jurors”. Mansfield was also a formidable presence in his court. It was said that if he thought that an advocate had talked long enough he would begin to read a newspaper.

When one advocate told him that he was going to have to throw away all of his law books because the decision that Mansfield had just issued was without legal precedent, Wise relates how his Lordship replied that it was “a pity to throw away books that had never been read.”

When Mansfield received the writ, he ordered that James Somerset be brought before him and then had him released over the objections of the barrister who had been retained by Stewart to represent his interests in the proceeding.

In a series of arguments that were made on the case, Stewart’s representatives argued that their client had purchased Somerset pursuant to a bill of sale that constituted a valid contract and that Stuart had the right to enter to another contract selling Somerset, and that Lord Mansfield should honor those contracts and let Somerset be sent to Jamaica. They also pointed out that while English law did not recognize slavery, it was in fact legal in the American colonies and in Jamaica, and that British law recognized the validity of contracts that were in accordance with the laws of the states where they were made.

The Caribbean colonies and the sugar and coffee that they produced was a major source of the wealth that was flowing into England at that time. Some British subjects who had interests in those colonies had bought slaves there and had brought them back to England, and a ruling on behalf of Somerset would set a precedent that would wreak havoc on them, Stewart’s barristers asserted. The Barristers who appeared on behalf of Somerset argued that since the British Parliament had never authorized the enslaving of one person by another, Somerset became a free man when he first landed on British soil, and that he had not entered into an agreement to be in the service of James Stewart. His former owner had no legal claim to him.

Mansfield subsequently issued a ruling that is referenced in all accounts of the development of human rights that ordered Somerset be released because there was no enactment of the British Parliament that permitted slavery.

William F. O’Brien is an assistant attorney general for the state of Oklahoma.

Editor’s Note: Have a short funny, intriguing or inspiring story to share? E-mail submission to carolm@okbar.org.