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Mansfield's Decision: Toward Human Freedom

Published online by Cambridge University Press:  18 August 2010

George Van Cleve
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Extract

As Daniel Hulsebosch and Ruth Paley show in their perceptive and helpful comments, Somerset's Case raises questions about several dimensions of the nature of British imperial slavery. As to those dimensions, we share considerable common ground. I agree with Paley that racism was an important element in the treatment of black slaves in England and in its colonies. Hulsebosch is correct that in the late eighteenth century protecting liberty in England by keeping England free from slavery could co-exist with the willingness or desire to maintain colonial slavery. However, as discussed below, the significance of the Somerset decision goes beyond racism and metropolitan protection.

Type
Forum: Response
Information
Law and History Review , Volume 24 , Issue 3 , Fall 2006 , pp. 665 - 671
Copyright
Copyright © the Board of Trustees of the University of Illinois 2006

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References

1. See Daniel J. Hulsebosch, “Nothing But Liberty: Somerset's Case and the British Empire,” and Paley, Ruth, “Imperial Politics and English Law: The Many Contexts of Somerset,” Law and History Review 24 (2006): 647–57CrossRefGoogle Scholar and 659-64.

2. Paley, Ruth, “Mansfield, Slavery and the Law in England, 1772-1830,” in Law, Crime and English Society, 1660-1830, ed. Landau, Norma (Cambridge: Cambridge University Press, 2002), 165–84CrossRefGoogle Scholar. Paley argued that the Robin John case demonstrated that slavery continued in England after Somerset. Although that case was settled by a court-approved compromise, the result was the release and return to Africa of unlawfully kidnapped Africans and a costly side payment to a colonial “owner,” all quite probably as a result of the prospect of adverse action by Mansfield. Oldham, James, English Common Law in the Age of Mansfield (Chapel Hill: University of North Carolina Press, 2004), 319–20Google Scholar (Amissa case of 1779 resulted in large jury damage award, urged by Mansfield, against captain who unlawfully sold African sailor as slave in Jamaica).

3. On English law's treatment of foreign merchants, see Kim's account in his excellent and broad-ranging book, Kim, Keechang, Aliens in Medieval Law: The Origins of Modern Citizenship (Cambridge: Cambridge University Press, 2000)CrossRefGoogle Scholar.

4. 1 Freeman 452, 89 ER 338 (first published 1742).

5. Dicey, A. V. and Carlile, J. H. C., Dicey and Morris on the Conflict of Laws, ed. Collins, L. A., 13th ed. (London: Sweet and Maxwell, 2000), 85Google Scholar n. 42. However, several statements that Hulsebosch understandably attributes to Lord Mansfield (Hulsebosch, , “Nothing But Liberty,” 653Google Scholar nn. 19-20) as a result of poor reporting of the decision were in my opinion quite probably made not by Mansfield, but by Wallace, counsel for the slaveholder. They are contained within the report of Wallace's speech and appear to have been Wallace's continuation of his argument after an interruption by Lord Mansfield. One of the quoted statements appears to have been the kind of statement that counsel would make to a court, not a statement that a prominent judge would make to counsel, and both support the rest of Wallace's argument, an argument with which Mansfield vocally disagreed in several key respects both at the time and in his decision.

6. One way of thinking about the limits of such pluralism is found in Armitage, David, The Ideological Origins of the British Empire (Cambridge: Cambridge University Press, 2000)CrossRefGoogle Scholar. On another aspect of pluralism, see Kim, Aliens in Medieval Law.

7. An Act for the more easy Recovery of Debts in His Majesty's Plantations and Colonies in America, (1731/2) 5 Geo. II, c. 7.

8. Ibid., 651.

9. Ibid., 651-52 and n. 14.

10. Hulsebosch, Daniel J., “The Ancient Constitution and the Expanding Empire: Sir Edward Coke's British Jurisprudence,” Law and History Review 21 (2003): 439–82CrossRefGoogle Scholar (argued that English law did not confer English rights on colonies).

11. Campbell v. Hall, 1 Cowp. 204, 98 E.R. 1045 (K.B. 1774).

12. 1 Cowp. 209, 98 E.R. 1048.

13. 98 E.R. 863 (Campbell v. Hall, argument).

14. Hulsebosch, , “Nothing But Liberty,” 651.Google Scholar