Passing historic laws against their will
From rydra_wong:
The Rules: Post info about ONE Supreme Court decision, modern or historic to your lj. (Any decision, as long as it's not Roe v. Wade.) For those who see this on your f-list, take the meme to your OWN lj to spread the fun.
jonquil adds:
Non-Americans, I would love it if you posted a foundational court case in your system.
So I've been meaning to post about this for some time now...
Text reproduced from Simon Schama's Rough Crossings: Britain, the Slaves and the American Revolution, 2005, pp. 61-63, 71-76, except for anything in square brackets.
On the look-out for a case that would bring [William Murray, Lord Chief Justice Mansfield] to the test, [Granville Sharp, leading British abolitionist] had very little time to wait before the perfect opportunity presented itself. On the 15th of November 1771... James Somerset, erstwhile slave of Charles Stewart, was kidnapped near Covent Garden, bundled off to the Ann and Mary bound for Jamaica and clapped in irons below deck. ... James Somerset had been bought by Stewart, then a customs officer, on arrival in Virginia as long ago as 17499, and had been in his service ever since. When Stewart had been moved north to Massachusetts as a paymaster Somerset had gone with him, and had been his body servant for twenty years when the two men arrived in London in 1769. ... Knowing that his master's stay in England was to be only temporary, and that he might be sold, Somerset had evidently decided that escape was his only change to avoid being shipped back to the Caribbean. If he were ever to be free, it was now or never. One day in September 1771 he disappeared.
Slavecatching in London was so common that kidnappers seldom bothered to conceal themselves from witnesses. Three people observed the taking of James Somerset, and one of them, Elizabeth Cade, seems to have taken the initiative... in securing a writ of Habeas Corpus, which ended in the 'body' of Somerset being produced for the magistrate on the 9th of December. But the person on whom it had been served had the right of 'return to the writ', and Stewart, along with Captain Knowles of the Ann and Mary, took full advantage of his right to complain about the larceny of their property. By running away, James Somerset had robbed them. Mansfield's demeanour must have encouraged Knowles, who had to defend himself against the charge of illegal detention, and Stewart. For it was Somerset, not the captain and the slaveowner, who was strictly bound over, on pain of draconian penalties, should he abscond. Those who had organised the kidnapping, on the other hand, were not required to appear in person to answer the case and could indeed free themselves from prosecution at any time simply by relinquishing the claim to Somerset.
On hearing that Somerset, rather than Stewart and Knowles, had been made to feel the guilty part, Sharp became furious at the conduct of his antagonist, the smooth and smiling Mansfield. When Somerset was brought to see Sharp in his lodgings in Old Jewry on the 13th of January 1772, Sharp plunged into the affair, certain that this time, whatever Mansfield's sophistries, the matter of slavery's legality in England would finally come to the test in the court of the King's Bench. His first move was to lay out the six guineas needed to retain two counsel for James Somerset. That something tremendous was impending struck not only Granville Sharp and his family, but a much wider circle of the incensed, who had either followed the [previous attempt to prove that slavery was against English law] in the press or heard about it on the winding grapevine that extended from Mrs Banks at Chelsea to her friends and fellow slavery-haters Dr Johnson, Reynolds and Garrick. For the first time in British history the individually indignant were coming together in a concerted campaign against the slave trade.
...
[From this, a huge legal battle ensued. Mansfield tried from the start to ensure that the case was not seen as a landmark decision about slavery. He suggested to Elizabeth Cade that the matter might be resolved if she were to buy Somerset's liberty. To her credit, she refused, replying that to do so 'would be an acknowledgement that the plaintiff had a right to assault and imprison a poor innocent man in this kingdom and that she would never be guilty of setting so bad an example'.
Sharp's side were trying to prove that slavery itself went against English Common Law, with the main proof being a judgement given in Queen Elizabeth's time that 'no man can be a slave, being once in England, the very air he breathed made him a free man [and] that he has a right to be governed by the laws of the land'.]
...
On Monday the 22nd of June 1772, at 11 o'clock in the morning, all of London and beyond seemed to have come to Westminster Hall, spilling from the coffee-houses and taverns, the law courts and mercantile establishments, the shops and exhibition rooms, coming by carriage and sedan chair and horse and foot, from the trim new squares to the west and the clattering City streets to the east. ... Among that crowd this day were black faces who greeted Mansfield and Justices Ashton, Willes and Ashurst as the four long wigs passed through the screen and into King's Bench, carefully ascending the low steps where once the judges of Charles I had hectored the deposed king, and took their high-backed seats. [Mansfield] appeared, for the moment, tongue-tied, uncharacteristically leaden, his habitual affability oppressed by the burdensome expectations of history. More than ever the hall seemed not merely a court of law, his court of law, but as it had been centuries before, the true curia regis, the court of the king and the kingdom. England glowered in a summer chill, and for once the Lord Chief Justice wore his famous learning moodily.
But, in the dim and stony silence he proceeded, his Perthshire lilt lost to many as it floated through the wooden screen and out into the dusty vastness, where at first it competed with the hubbub of people browsing the pen and wig stalls that lined the hall's perimeter. But then it became understood that judgement was to be given and there was a hush. Mansfield resumed. It was not, he said, as some, indeed many, might suppose, some great and general issue that was to be judged, but merely whether or not there was sufficient cause for the 'return' - Captain Knowles's reply to the writ of Habeas Corpus charging that he and Mr Stewart, not the negro, had been the victims of an unlawful act. If there were cause, then, the negro must be detained; if not, not; it was as plain as that. Unease rippled through the hall. For some time the Lord Chief Justice made his way through not just this case but others concerning similar escapes and detentions, and became warm when affirming, somewhat improbably given all that had been said against it, that [a ruling of somewhat dubious legality cited previously] had stated that neither the fact of a slave coming into England, much less his or her baptism, could be held to set the rights of masters at naught. And yet (the public heard this shift), while slavery had been and was many things in 'different ages and states... the exercise of the power of a master over his slave must be supported by the Laws of particular Countries; but no foreigner can in England claim such a right over a man; such a claim is not known to the laws of England... the power claimed never was in use here or acknowledged by the Law... no Master ever was allowed here to take a Slave by force to be sold abroad because he had deserted from his service or for any other Reason whatever, we cannot say the Cause set forth by this Return is allowed or approved of by the Laws of this Kingdom; therefore' - the Lord Chief Justice made sure not to pause - 'the Man must be discharged.'
...
[Although] it is quite true that, in the interests of a clear-cut moral and legal drama, the press and public opinion had all taken the freeing of Somerset to vindicate [his lawyer]'s axiom that 'as soon as any slave sets foot on English ground he becomes free', that was not, in fact, what Mansfield had said; indeed, he had inflicted contortions on himself to avoid saying it. What he had said was that the power of a master to transport his slave against his will, out of England and to a place where he might be sold, had never been known or recognised under Common Law. And that, indeed, was the ground on which Somerset had been liberated.
But aside from the exceptionally attentive, neither party - neither the West Indian sugar interest, which now launched a furious lobby for legislation to recognise their property rights when in England, nor the elated crusaders for negro freedom - took the measure of Mansfield's fastidiousness. Both sides did, in fact, think he had made slavery illegal in England.
...
But beyond the finger-pointing, beyond the mutual accusations of greater or lesser hypocrisy, beyond Lord Mansfield's obstinately tortured efforts to duck the great issue, the liberation of James Somerset had done something startling to the society of the free and the enslaved that stretched across the Atlantic. It had made the idea of British freedom a germ of hope. On the evening of the 22nd of June 1772, blacks in London had no doubt at all that there was reason to celebrate... And Charles Stewart, Somerset's erstwhile owner, received confirmation - if he needed it - of the effect of Mansfield's ruling when he heard from one of his remaining slaves that 'he had rec'd a letter from his Uncle Sommerset acquainting him that Lord Mansfield had given them their freedom & he was determined to leave me as soon as I had returned from London which he did without even speaking to me. I don't find he has gone off with anything of mine. Only carried off all his own cloths which I don't know that he had any right so to do. I believe that I shall not give myself any trouble to look after the ungrateful villain.'
There would be a lot of ungrateful departures in the years ahead.
The Rules: Post info about ONE Supreme Court decision, modern or historic to your lj. (Any decision, as long as it's not Roe v. Wade.) For those who see this on your f-list, take the meme to your OWN lj to spread the fun.
jonquil adds:
Non-Americans, I would love it if you posted a foundational court case in your system.
So I've been meaning to post about this for some time now...
Text reproduced from Simon Schama's Rough Crossings: Britain, the Slaves and the American Revolution, 2005, pp. 61-63, 71-76, except for anything in square brackets.
On the look-out for a case that would bring [William Murray, Lord Chief Justice Mansfield] to the test, [Granville Sharp, leading British abolitionist] had very little time to wait before the perfect opportunity presented itself. On the 15th of November 1771... James Somerset, erstwhile slave of Charles Stewart, was kidnapped near Covent Garden, bundled off to the Ann and Mary bound for Jamaica and clapped in irons below deck. ... James Somerset had been bought by Stewart, then a customs officer, on arrival in Virginia as long ago as 17499, and had been in his service ever since. When Stewart had been moved north to Massachusetts as a paymaster Somerset had gone with him, and had been his body servant for twenty years when the two men arrived in London in 1769. ... Knowing that his master's stay in England was to be only temporary, and that he might be sold, Somerset had evidently decided that escape was his only change to avoid being shipped back to the Caribbean. If he were ever to be free, it was now or never. One day in September 1771 he disappeared.
Slavecatching in London was so common that kidnappers seldom bothered to conceal themselves from witnesses. Three people observed the taking of James Somerset, and one of them, Elizabeth Cade, seems to have taken the initiative... in securing a writ of Habeas Corpus, which ended in the 'body' of Somerset being produced for the magistrate on the 9th of December. But the person on whom it had been served had the right of 'return to the writ', and Stewart, along with Captain Knowles of the Ann and Mary, took full advantage of his right to complain about the larceny of their property. By running away, James Somerset had robbed them. Mansfield's demeanour must have encouraged Knowles, who had to defend himself against the charge of illegal detention, and Stewart. For it was Somerset, not the captain and the slaveowner, who was strictly bound over, on pain of draconian penalties, should he abscond. Those who had organised the kidnapping, on the other hand, were not required to appear in person to answer the case and could indeed free themselves from prosecution at any time simply by relinquishing the claim to Somerset.
On hearing that Somerset, rather than Stewart and Knowles, had been made to feel the guilty part, Sharp became furious at the conduct of his antagonist, the smooth and smiling Mansfield. When Somerset was brought to see Sharp in his lodgings in Old Jewry on the 13th of January 1772, Sharp plunged into the affair, certain that this time, whatever Mansfield's sophistries, the matter of slavery's legality in England would finally come to the test in the court of the King's Bench. His first move was to lay out the six guineas needed to retain two counsel for James Somerset. That something tremendous was impending struck not only Granville Sharp and his family, but a much wider circle of the incensed, who had either followed the [previous attempt to prove that slavery was against English law] in the press or heard about it on the winding grapevine that extended from Mrs Banks at Chelsea to her friends and fellow slavery-haters Dr Johnson, Reynolds and Garrick. For the first time in British history the individually indignant were coming together in a concerted campaign against the slave trade.
...
[From this, a huge legal battle ensued. Mansfield tried from the start to ensure that the case was not seen as a landmark decision about slavery. He suggested to Elizabeth Cade that the matter might be resolved if she were to buy Somerset's liberty. To her credit, she refused, replying that to do so 'would be an acknowledgement that the plaintiff had a right to assault and imprison a poor innocent man in this kingdom and that she would never be guilty of setting so bad an example'.
Sharp's side were trying to prove that slavery itself went against English Common Law, with the main proof being a judgement given in Queen Elizabeth's time that 'no man can be a slave, being once in England, the very air he breathed made him a free man [and] that he has a right to be governed by the laws of the land'.]
...
On Monday the 22nd of June 1772, at 11 o'clock in the morning, all of London and beyond seemed to have come to Westminster Hall, spilling from the coffee-houses and taverns, the law courts and mercantile establishments, the shops and exhibition rooms, coming by carriage and sedan chair and horse and foot, from the trim new squares to the west and the clattering City streets to the east. ... Among that crowd this day were black faces who greeted Mansfield and Justices Ashton, Willes and Ashurst as the four long wigs passed through the screen and into King's Bench, carefully ascending the low steps where once the judges of Charles I had hectored the deposed king, and took their high-backed seats. [Mansfield] appeared, for the moment, tongue-tied, uncharacteristically leaden, his habitual affability oppressed by the burdensome expectations of history. More than ever the hall seemed not merely a court of law, his court of law, but as it had been centuries before, the true curia regis, the court of the king and the kingdom. England glowered in a summer chill, and for once the Lord Chief Justice wore his famous learning moodily.
But, in the dim and stony silence he proceeded, his Perthshire lilt lost to many as it floated through the wooden screen and out into the dusty vastness, where at first it competed with the hubbub of people browsing the pen and wig stalls that lined the hall's perimeter. But then it became understood that judgement was to be given and there was a hush. Mansfield resumed. It was not, he said, as some, indeed many, might suppose, some great and general issue that was to be judged, but merely whether or not there was sufficient cause for the 'return' - Captain Knowles's reply to the writ of Habeas Corpus charging that he and Mr Stewart, not the negro, had been the victims of an unlawful act. If there were cause, then, the negro must be detained; if not, not; it was as plain as that. Unease rippled through the hall. For some time the Lord Chief Justice made his way through not just this case but others concerning similar escapes and detentions, and became warm when affirming, somewhat improbably given all that had been said against it, that [a ruling of somewhat dubious legality cited previously] had stated that neither the fact of a slave coming into England, much less his or her baptism, could be held to set the rights of masters at naught. And yet (the public heard this shift), while slavery had been and was many things in 'different ages and states... the exercise of the power of a master over his slave must be supported by the Laws of particular Countries; but no foreigner can in England claim such a right over a man; such a claim is not known to the laws of England... the power claimed never was in use here or acknowledged by the Law... no Master ever was allowed here to take a Slave by force to be sold abroad because he had deserted from his service or for any other Reason whatever, we cannot say the Cause set forth by this Return is allowed or approved of by the Laws of this Kingdom; therefore' - the Lord Chief Justice made sure not to pause - 'the Man must be discharged.'
...
[Although] it is quite true that, in the interests of a clear-cut moral and legal drama, the press and public opinion had all taken the freeing of Somerset to vindicate [his lawyer]'s axiom that 'as soon as any slave sets foot on English ground he becomes free', that was not, in fact, what Mansfield had said; indeed, he had inflicted contortions on himself to avoid saying it. What he had said was that the power of a master to transport his slave against his will, out of England and to a place where he might be sold, had never been known or recognised under Common Law. And that, indeed, was the ground on which Somerset had been liberated.
But aside from the exceptionally attentive, neither party - neither the West Indian sugar interest, which now launched a furious lobby for legislation to recognise their property rights when in England, nor the elated crusaders for negro freedom - took the measure of Mansfield's fastidiousness. Both sides did, in fact, think he had made slavery illegal in England.
...
But beyond the finger-pointing, beyond the mutual accusations of greater or lesser hypocrisy, beyond Lord Mansfield's obstinately tortured efforts to duck the great issue, the liberation of James Somerset had done something startling to the society of the free and the enslaved that stretched across the Atlantic. It had made the idea of British freedom a germ of hope. On the evening of the 22nd of June 1772, blacks in London had no doubt at all that there was reason to celebrate... And Charles Stewart, Somerset's erstwhile owner, received confirmation - if he needed it - of the effect of Mansfield's ruling when he heard from one of his remaining slaves that 'he had rec'd a letter from his Uncle Sommerset acquainting him that Lord Mansfield had given them their freedom & he was determined to leave me as soon as I had returned from London which he did without even speaking to me. I don't find he has gone off with anything of mine. Only carried off all his own cloths which I don't know that he had any right so to do. I believe that I shall not give myself any trouble to look after the ungrateful villain.'
There would be a lot of ungrateful departures in the years ahead.