Freeing James Somerset: Start of the Long Journey to the Thirteenth Amendment

Perhaps the greatest tragedy of the American constitutional system, and of its English antecedents, was its extended tolerance — even protection — of categorizing persons as property. Chattel slavery, in short.

But perhaps its greatest triumph was to make possible slavery’s end — an outcome agonizingly delayed but finally achieved. We rightly insist that the sad story be told, and its legacies confronted. But we need equally to discern how the end happened and recall its origins.

What hinge point first pivoted law, and the public sentiment undergirding it, toward removing that taint? That’s the largely forgotten story to tell this Constitution Day 2022: I take you back 250 years to find the first legal crack in the ancient system of enslavement.

Specifically, in 1772 came a landmark High Court ruling, 15 years before the date we mark today: September 17, 1787 (when Convention delegates approved the final draft of the U.S. Constitution). It was handed down not in America but in England. It was grounded not in a Constitutional provision (Britain had no written constitution) but on common law and practice. It changed little but portended much.

It did not end slavery, that “peculiar institution” of American euphemism, but it freed James Somerset. And that set in motion a movement that revolutionized the longstanding system of human bondage. Nearly a century and a bloody Civil War would unfold before the Thirteenth Amendment abolished slavery altogether in the United States. But the journey was begun.

The historical backdrop

As we struggle in our time to overcome the personal and structural legacies of racial injustice — and especially the hard history of enslavement of Africans, it is worth stepping back to take in a wide and deep historical perspective.

Bondage was endemic in human societies in all parts of the earth from time out of mind, “as old as the oldest human records,” points out historian Stephen Mintz. Another estimates that as recently as 200 years ago fully three fourths of humanity were “prisoners” in some sort of “bondage, part of a global economy based on forced labor.” In the words of still another: “Freedom, not slavery, was the peculiar institution.”

Likewise, the trade in human flesh, especially Black Africans, stretches back to antiquity. North African middlemen brokered slave transport across the Sahara to the Mediterranean, where enslavement persisted into the Renaissance. Even before Columbus, the Portuguese made the traffic direct. Venturing southward along the West African coast, they bartered with coastal Black chieftains for captives to work plantations on offshore islands. When a “New World” across the Atlantic was discovered, a system already in place quickly entrenched in the new dominions.

The enslavement of Black Africans, then, was neither new nor solely European. And yet, Mintz rightly points out, the transatlantic coerced passage of more than 10 million Black Africans to the Western Hemisphere, especially to Portuguese Brazil, was indeed “distinctive” — both quantitatively and qualitatively. It constituted the largest mass movement of people in world history. It devastated indigenous societies in sub-Saharan Africa, while underwriting European colonization of North and South America and ultimately the modern economy. And unlike most other systems of bondage, it was “based on race.”

English settlements in North America were late to the enterprise. The first arrivals — to Virginia in 1619 — were preceded by two centuries of buying and coercing an African labor force. At first indentured servitude, long established in England, was the template. Contracted bondage for a fixed term made the servant the effective property (“chattel”) of the temporary holder of the legal indenture. (Apprenticeship is a familiar example.)

Africans, however, came without contracts. Quickly their status changed: first to a lifelong term, then to an inheritable condition, then to a legally regulated caste. But always race-based. By the later 1600s, African chattel slavery was established in all the English colonies, island and mainland; by the late 1700s, enslaved Africans far outnumbered indentured Europeans.

Massive. Horrible. Global. Normal.

How then, in the span of a lifetime, say 1800–1875, did the unquestioned legal institution of slavery end — at least in British and American law?

Granville Sharp

The historical moment

In 1767, a 32-year-old musician, polymath, and passionate Christian activist named Granville Sharp helped a former slave, abandoned in London, to confirm his freedom in a hearing with the local mayor. Sharp’s reputation as a defender of London’s considerable Black population grew, as did his avalanche of protest writings about slavery. Five years later came his landmark case. As he noted in his diary, “James Somerset, a Negro from Virginia, called on me this morning.”

Somerset’s owner had brought him to England, where he briefly escaped. Recaptured, he was then confined to a ship due to sail to the West Indies. His re-enslavement was halted to let his status be determined by the realm’s highest criminal court, the Court of King’s Bench. The august Lord Chief Justice Mansfield would be called upon to rule on whether slavery could legally exist in England.

Historian Adam Hochschild describes Mansfield as “a man of elegance and wit,” now known to jurisprudence as “the father of modern British commercial law.” The distinguished jurist faced the wrenching constitutional dilemma that Americans would wrestle with until their Civil War: “the right to property clashed with the right to liberty.”

He seems to have tried to duck it. While Sharp peppered him with arguments on behalf of Somerset, Mansfield dragged out the proceedings, begging the litigants to settle out of court. When these efforts failed, however, Mansfield ruled that Somerset was indeed free because no English law allowed a man to coerce another. More precisely, no one could be forcibly removed from English soil. In fact, Lord Mansfield concluded with the remarkable declaration that “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. ... It’s so odious, that nothing can be suffered to support it, but positive law.”

The ruling was intentionally narrow, confined in Mansfield’s mind just to Somerset, but no one saw it so. Evidently, no one could be a slave in England, the deeply engaged public believed, and abolitionists crowed, because only a positive provision in law could deny someone his right to be free. The famous codifier of English common law, William Blackstone, averred flatly that “liberty is so deeply implanted ... that a slave or Negro, the moment he lands in England, becomes a free man ...” And American courts tended to interpret Somerset as prohibiting slavery unless established in legislation.

Explicit laws did authorize slavery in the British colonies. Each decade tens of thousands of trafficked Africans continued to arrive, legally, in the Americas. Both the slave trade itself and the various staple-crop plantations in the Caribbean islands, Brazil and the North American mainland remained highly profitable. The Mansfield ruling making James Somerset free seemed to have little enduring effect. 

The historical impact

But the questions of law and conscience had been raised. Abolitionists publicized the case relentlessly, if too broadly, as a definitive ruling against enslavement. And gradually new Christian voices, many of them Quaker, in both Britain and America, joined Granville Sharp’s. Two years after the ruling, the English preacher and reformer John Wesley penned his “Thoughts Upon Slavery.” As fighting in America erupted in 1775, Pennsylvanian Quakers denied membership to slave owners. One year after the Declaration of Independence, the quasi-colony of Vermont banned slavery in its independent constitution. The next year, the separate Scottish high court ruled slavery illegal in Scotland.

A decade later, in 1787, a band of 12 earnest Christians met in London to launch a formal antislavery campaign. Soon they enlisted other Christian activists: a former slave ship captain, Anglican priest John Newton; a literate and well-traveled former slave, Olaudah Equiano; and a young member of Parliament, William Wilberforce. Also in 1787, in the newly independent United States, the Continental Congress enacted the Northwest Ordinance to govern the lands west of the Appalachians and north of the Ohio River, stipulating a ban on slavery.

And down in Philadelphia that summer, delegates drafted a Federal Constitution acknowledging but not mandating slavery and protecting the slave trade, though only for 20 years. In one sense, the Federal Charter seemed to sanction the institution, but as President Abraham Lincoln would later insist, the document was crafted to make possible slavery’s end. Evidence for Lincoln’s view came in 1807 when, almost as if on cue, the U.S. Congress banned the African traffic. Coincidentally, that same year the British Parliament, goaded for two decades by the persistent Wilberforce and allies, did the same.

Even Lord Mansfield himself made another small contribution to that historic turning against the historic normality of bondage. He raised as his ward the daughter of his nephew’s liaison with an enslaved woman. In his will he granted her a sizable bequest and lifetime annuity. And to make her status crystal clear, he added, “I do confirm to Dido Elizabeth her freedom.”

The momentum had shifted.

The historical significance

In 1772, bondage was both normal and legal. Within a century it was disappearing and largely disavowed in law. The crusade for full equality and justice for the once enslaved had a long way to go, but a cultural revolution had been wrought. I believe the first step in that journey, the freeing of James Somerset, rooted in both a Christian ethic and an Anglo-American instinct for constitutional government under the rule of law, is a crucial origin story for all to know.

(Let it be reiterated, though not the focus here, that Christian and Anglo-American voices also defended slavery, some going so far as to justify it as a “positive good.”)

Constitution Day marks the moment in 1787 when a charter for self-government of the infant and barely United States was signed. Though flawed, it has been periodically fixed through Amendment, not least the Thirteenth Amendment. Occasionally vulnerable to threats internal and external, it has lasted. It remains our duty, as the “posterity” the Framers had in view, to guard, treasure, apply and — when necessary — alter the Constitution.

As Martin Luther King Jr. famously said, “The arc of the moral universe is long, but it bends toward justice.”

The judicial freeing of James Somerset — in a British courtroom precisely 250 years ago — began the bending.