Stewart brought Somersett with him when he returned to England in 1769 but in 1771 Somerset escaped. After he was recaptured in November, Stewart had him imprisoned on the ship Ann and Mary (under Captain John Knowles), bound for the British colony of Jamaica. He directed that Somerset be sold to a plantation for labour.
Somersett's three godparents from his baptism as a Christian in England, John Marlow, Thomas Walkin and Elizabeth Cade, made an application on 3 December before the Court of King's Bench for a writ of habeas corpus. Captain Knowles on 9 December produced Somerset before the Court of King's Bench, which had to determine whether his imprisonment was lawful.
Slavery at common law in former colonies of the British Empire developed slowly over centuries, and was characterised by inconsistent decisions and varying rationales for the treatment of slavery, the slave trade, and the rights of slaves and slave owners. Within Britain, until 1807, except for statutes facilitating and taxing the international slave trade, there was virtually no legislative intervention in relation to slaves as property, and accordingly the common law had something of a "free hand" to develop, untrammeled by the "paralysing hand of the Parliamentary draftsmen".
For most of the early common law history, the courts were not called upon to consider the position in relation to slavery. However, the law did, from at least the time of the Magna Carta of 1215 recognise that all persons had a basic right to liberty, and it was recognised before that date that persons had a basic right not to be the subject of assaults by others. Accordingly, it has been subsequently argued (most famously by Granville Sharp in Somerset's Case) that as slavery usually involved one or both of these things, it would only be lawful if there was positive legal impetus for its legality. However, this analysis does not square particularly well with the law of the time as a whole; serfdom, and later villeiny, involved both a loss of freedom and in certain circumstances the law permitted physical chastisement of serfs, villeins and even indentured apprentices.
In 1102 the Church Council of London issued a decree which, amongst other things, proclaimed: "Let no one hereafter presume to engage in that nefarious trade in which hitherto in England men were usually sold like brute animals." The legislative force of this decree is not certain, although it may have had effect within the church under Ecclesiastical law; it was intended to abolish the trading of serfs in London, but the decree is sometimes cited as authority for the proposition that trading in slaves became illegal in England at that date. Even if that is correct (which is open to question, subsequent cases distinguishing between villeiny (although not serfdom) and slavery), it is clear that the law was not expressed to abrogate the status of either serfs generally, or slaves who were brought to England from abroad. There are also reports relating to an Irish decree in 1171 "that all the English slaves in the whole of Ireland, be immediately emancipated and restored to their former liberty." The same source indicates that slavery in England was abolished by a general charter of emancipation in 1381. Other historical sources for such an emancipation proclamation appear thin, although the date would coincide with the Peasants' Revolt, after which a number of concessions were made by the 14-year-old King Richard II, which were later rescinded. Certainly villeinage continued in England, slowly decaying, until the last villein died in the early 17th century.
In 1569, a man, Cartwright, was observed savagely beating another, which in law would have amounted to a battery, unless a defence could be mounted. Cartwright averred that the man was a slave whom he had brought to England from Russia, and thus such chastisement was not unlawful. The case is reported by John Rushworth in his 1721 summary of John Lilburne's case of 1649.
He wrote:
"Whipping was painful and shameful, Flagellation for Slaves. In the Eleventh of Elizabeth [i.e., 1569], one Cartwright brought a Slave from Russia, and would scourge him, for which he was questioned; and it was resolved, That England was too pure an Air for Slaves to breath in. And indeed it was often resolved, even in Star-Chamber, That no Gentleman was to be whipt for any offence whatsoever; and his whipping was too severe."It is reported that the court held that the man must be freed, and it is often said that the court held;
"that England was too pure an air for a slave to breathe in."Subsequent citations of the effect of the case was actually to impose limits on the physical punishment on slaves, rather than to express comment on legality of slavery generally. In the case of John Lilburne in 1649, the defendant's counsel relied upon Cartwright's case to show that the severity of a whipping received by Lilburne exceeded that permitted by law. In none of subsequent common law cases prior to Somersett's case was Cartwright's case cited as authority for the proposition that slavery was unlawful. However, those disputes predominantly concerned disputes between slave merchants, for whom it would have been commercially unwise to plead that slavery was unlawful.
The Judgement in the the Somersett v Stewart case by the Chief Justice of the King's Bench
The Chief Justice of the King's Bench, William Murray, 1st Earl of Mansfield, ordered a hearing for 21 January; in the meantime he set the prisoner free on recognisance. A request to prepare arguments was granted Somerset's counsel and so it was not until 7 February 1772 that the case was heard. In the meantime, the case had attracted a great deal of attention in the press and members of the public donated monies to support the lawyers for both sides of the argument.
Granville Sharp, an abolitionist layman who continually sought test cases against the legal justifications for slavery, was Somerset's real backer. When the case was heard, five advocates appeared for Somerset, speaking at three hearings between February and May. These lawyers included Francis Hargrave, a young lawyer who made his reputation with this, his first case; James Mansfield, Serjeant-at-law William Davy, Serjeant-at-law John Glynn; John Alleyne, and the noted Irish lawyer and orator John Philpot Curran whose lines in defence of Somerset were often quoted by American abolitionists (such as Frederick Douglass).
Somerset's advocates argued that while colonial laws might permit slavery, neither the common law of England nor any law made by Parliament recognised the existence of slavery and slavery was therefore unlawful. The advocates also argued that English contract law did not allow for any person to enslave himself, nor could any contract be binding without the person's consent. The arguments focused on legal details rather than humanitarian principles. When the two lawyers for Charles Stewart put their case, they argued that property was paramount and that it would be dangerous to free all the black people in England, who numbered at the time approximately 15,000.
Lord Mansfield heard arguments and first gave a short opinion in court, encouraging the parties to come to a settlement by letting Somerset go free. Otherwise, he said that a judgment would be given. As he put it, let justice be done whatever the consequence.
Easter Term, May 14, 1772. ... Mr. Stewart advances no claim on contract; he rests his whole demand on a right to the negro as slave, and mentions the purpose of detainure to be the sending of him over to be sold in Jamaica. If the parties will have judgment, fiat justitia, ruat cœlum, let justice be done whatever be the consequence. 50ℓ. a head may not be a high price; then a loss follows to the proprietors of above 700,000ℓ. sterling. How would the law stand with respect to their settlement; their wages? How many actions for any slight coercion by the master? We cannot in any of these points direct the law; the law must rule us. In these particulars, it may be matter of weighty consideration, what provisions are made or set by law. Mr. Stewart may end the question, by discharging or giving freedom to the negro.
Lord Mansfield was anxious to avoid the issue principle, and pressed the parties to settle; but the case was taken up by the West India merchants, who wanted to know whether slaves were a safe investment, and by abolitionists such as Granville Sharp, so that it became a cause célèbre. The law of villeinage was turned by Somersett's counsel into an argument against slavery, since the kind of proof that was required to establish villein status was not available in claiming slaves. On behalf of Somersett, it was argued that while colonial laws might permit slavery, neither the common law of England, nor any law made by Parliament recognised the existence of slavery, and slavery was therefore illegal. Moreover, English contract law did not allow for any person to enslave himself, nor could any contract be binding without the person's consent. The arguments thus focused on legal details rather than humanitarian principles. A law passed in 1765 said that all lands, forts and slaves owned by the Africa Company were a property of the Crown, which could be interpreted to mean that the Crown accepted slavery. When the two lawyers for Charles Stewart put their case, they argued that a contract for the sale of a slave was recognised in England, and therefore the existence of slaves must be legally valid.
Having heard both sides of the argument, Lord Mansfield retired to make his decision, and reserved judgment for over a month. He gave his judgment on 22 June 1772. This judgment, which in the end, was short and delivered orally only.
In the event the court ordered in 1772 that "the black must be discharged".
The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory: it's so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from a decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.But Lord Mansfield, while stating that slavery was "odious", did not decide that slavery was unlawful, nor even that Somersett was no longer a slave, confining himself to the narrow point that a slave could not be made to leave England against his will. The decision also left aside the problem in the conflict of laws; if a person was a slave by law of his domicile, which was not disputed in the case of Somersett, a mere temporary presence in England would not set him free permanently, even for the purpose of English law.
Slavery had never been authorized by statute in England and Wales, and Lord Mansfield's decision found it also unsupported in common law. Lord Mansfield narrowly limited his judgment to the issue of whether a person, regardless of being a slave, could be removed from England against their will, and said they could not. Even this reading meant that certain property rights in chattel slaves were unsupported by common law. It is one of the most significant milestones in the abolitionist campaign.
Somersett was free and his supporters, who included both black and white Londoners, celebrated a great victory. Whilst argument by counsel may have been based primarily on legal technicalities, Lord Mansfield appeared to believe that a great moral question had been posed and he deliberately avoided answering that question in full, because of its profound political and economic consequences.
Some historians believe the case contributed to increasing colonial support for separatism in the Thirteen Colonies of British North America, by parties on both sides of the slavery question who wanted to establish independent government and law. The southern colonies wanted to protect slavery and expanded its territory dramatically in the decades after independence was won.
Dido and the Earl
Painting of Dido Elizabeth Belle with her cousin Elizabeth Murray, who lived with Lord Mansfield.
The Earl and Countess of Mansfield lived at Kenwood House in Hampstead, just outside the City of London. Childless, they were already raising their motherless great-niece, Lady Elizabeth Murray, born in 1760. It is possible that the Mansfields took Belle in to be Lady Elizabeth's playmate and, later in life, her personal attendant. Her role within the family suggests that her role became more that of a lady's companion than a lady's maid.
At Kenwood house, "Belle was treated like the rest of the family when she was in company with only the family," says Mansfield. As the black, illegitimate daughter of a nobleman, Belle was too well-born to belong with commoners but too different to be welcomed whole-heartedly in high society. Lord Mansfield had a close relationship with Belle; he was fond of her and she often helped him, later working as his secretary.
Belle lived at Kenwood House for 31 years. Her position was unusual because she was born into slavery according to colonial law. Lord and Lady Mansfield to some extent treated her and brought her up as a member of the Murray family. As she grew older, she often assisted Mansfield by taking dictation of his letters, which showed she had been educated.
One of Mansfield's friends, American Thomas Hutchinson, a former governor of Massachusetts who as a Loyalist had moved to London, recalled in his personal diary that Belle "was called upon by my Lord every minute for this thing and that, and shewed the greatest attention to everything he said". He described her as "neither handsome nor genteel – pert enough". He also talks about his first impressions of her at Lord Mansfield's house, saying "A Black came in after dinner and sat with the ladies, and after coffee, walked with the company in the gardens, one of the young ladies having her arm within the other. She had a very high cap, and her wool was much frizzled in her neck, but not enough to answer the large curls now in fashion. I knew her history before, but my Lord mentioned it again. Sir Lindsay, having taken her mother prisoner in a Spanish vessel, brought her to England, where she delivered of this girl, of which she was then with child, and which was taken care of by Lord M., and has been educated by his family. He calls her Dido, which I suppose is all the name she has. He knows he has been reproached for shewing a fondness for her – I dare say not criminal".
A reference to Belle also appears briefly in volume II of James Beattie's Elements of Moral Science. Beattie refers to her intelligence, saying "But I happened, a few days after, to see his theory overturned, and my conjecture established by a negro girl about ten years old, who had been six years in England, and not only spoke with the articulation and accent of a native, but repeated some pieces of poetry, with a degree of elegance, which would have been admired in any English child of her years." Following this is a footnote which states, "She was in Lord Mansfield's family ; and at his desire, and in his presence, repeated those pieces of poetry to me. She was called Dido, and I believe is still alive." This is and the quotations from Thomas Hutchinson are some of the few direct references to Dido found in primary source material.
At the time, it was suggested that Mansfield's personal experience with raising Dido Belle influenced his decision. Thomas Hutchinson later recalled a comment by a slave-owner: "A few years ago there was a cause before his Lordship brought by a Black for recovery of his liberty. A Jamaica planter, being asked what judgment his Lordship would give [answered] 'No doubt... he will be set free, for Lord Mansfield keeps a Black in his house which governs him and the whole family.'"
In his will of 1793, Lord Mansfield confirmed her freedom and provided an outright sum and an annuity to her, making her an heiress.
Belle (2013), a feature film directed by Amma Asante, explores Dido's life as the multiracial natural daughter of an aristocrat in 18th-century England; she became an heiress but occupied an ambiguous social position. The film is based on the 1779 painting of Dido and her cousin Elizabeth, formerly thought to be by Zoffany. The film stars Gugu Mbatha-Raw as Dido and Tom Wilkinson as her guardian Lord Mansfield.
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