Transatlantic Justice: Slavery in the Judicial Imagination

The Somerset case is thought by some commentators to have ended slavery in England. The opinion did no such thing.

F. Dumont Smith, Roger Brooke Taney, 1 Tex. L. Rev. 261, 274 (1923), citing Mansfield as a point of reference in a comment on Chief Justice, “for many years after Mansfield's decision slavery existed in the colleries and salteries of northern England. Mansfield simply held that freedom was the natural state of mankind; that slavery could only exist by virtue of positive municipal law, and as there was no such law in England, Somerset was free while on English soil.”

Mansfield had gone to great lengths in other cases to avoid the question of the legality of slavery in England. He hoped, much like cases today, that settlement would occur and obviate the necessity of deciding the issue. The slow progress of the case built up momentum and it became a cause célèbre. Both sides not surprisingly argued policy, property and morality interests.

Lord Mansfield framed the question—Whether colonial slavery laws could be enforced in England in the same way, for example, that a marriage contracted in a foreign country would be recognized in England. Specifically, could Stewart capture Somerset, keep him in captivity and take him out of the country against his will?

On the one hand, to legalize slavery would have many consequences contrary to the law of England. On the other hand, setting free 14,000–15,000 men could also have disruptive consequences.

Lord Mansfield was a principled jurist and noted “Compassion will not, on the one hand, nor inconvenience on the other, be to decide, but the law . . .”

id. at 509.

Mansfield felt a tension between his rational and humane beliefs and his unwavering support of British commerce and the sanctity of property. He understood the importance of the slave trade to British merchants, yet he knew that slavery could not be justified on any rational or humanitarian ground.

Poser, supra note 2, at 290, 296.

Lord Mansfield issued a courageous opinion. Although he may have had both religious and moral reservations about slavery, he understood that there were two sides to the argument. His opinion, resulting in Somerset's freedom, spoke volumes when he quoted the oft-used Latin phrase—fiat justitia ruat caelum—let justice be done, though the heavens fall.

Fiat justitia ruat caelum, Merriam Webster Dictionary (2021), https://www.merriam-webster.com/dictionary/fiat%20justitia%2C%20ruat%20caelum.

Apropos of that thought, the following is a quote from the Somerset opinion:

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 is so odious, that nothing can be suffered to support it, but positive law. Whatever inconvenience, 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.

Somerset, at 510.

Now, what does the ruling mean—if a slave came to England, ran away while in England, he or she could sue for their freedom and win. There were three important takeaways from the opinion. While Lord Mansfield technically could not deem slavery illegal in England, his opinion did note that an English court would not recognize a slaveowner's control over a slave. Lord Mansfield insisted that the scope of the opinion was merely that Somerset could not be forcibly taken from England since the writ of habeas corpus (freeing the body) protected both blacks and whites.

The opinion in Somerset left the issue of slavery to the local jurisdictions, see David M. Golove & Daniel J. Hulsebosch, The Federalist Constitution As A Project in International Law, 89 Fordham L. Rev. 1841, 1867 (2021), “The deaccessioning of slavery from the law of nations, in particular, was energized by Lord Mansfield's 1772 decision in Somerset v. Stewart (Somerset's Case), which proclaimed that slavery could not be reconciled with the law of nature but depended instead on the positive municipal law of a particular locality for its existence.”

Similarly, the opinion did not order the end of slavery in England and its colonies.

Although, it did heighten fears that this may be imminent, see Poser, supra note 2, at 296. To some extent Somerset had the effect of delegitimizing slavery, ultimately with a transatlantic ripple effect reaching the slave states in the U.S., id. at 1872, “The loss of this bulwark of legitimation, reflected most famously in Somerset's Case, sent supporters of slavery searching for new justifications within municipal law.” See also Christopher Tomlins, “Law As . . .” II, History as Interface for the Interdisciplinary Study of Law, 4 UC Irvine L. Rev. 1, 10 (2014), noting the impact of Somerset by stating. “Lord Mansfield's decision in Somerset's case, restricted though it was, weakened slavery's metropolitan foundations.”

Fast forward. Eighty-four years after the Somerset opinion, in a different place and time, Chief Justice Taney faced a legal challenge that literally had flummoxed preacher, politician, and philosopher from the constitutional convention to that very moment.

Ruth Paley, Imperial Politics and English Law: The Many Contexts of Somerset, 24 Law & Hist. Rev. 659, 664 (2006), considering the influence of Somerset in the United States, particularly for abolition movements, “Somerset has come to enjoy iconic status in the story of emancipation in America for reasons that go far beyond the limited reality of the decision itself. Its place in the history of America and race relations from the nineteenth century to the present day is a cultural phenomenon in its own right--one that is potentially far more interesting and worthy of study than Somerset itself.”

Dred Scott

Dred Scott v. Sandford, 60 U.S. 393 (1857).

Taney grew up in a family with slaves. As an adult, he owned slaves for a period of time, but freed them. The freeing of those slaves, coupled with cases in his earlier career, might lead the uninitiated to believe he was against the institution of slavery. Indeed, as a practicing lawyer he represented a Methodist minister from Pennsylvania, Jacob Gruber. Gruber was indicted for inciting slaves to insurrection by preaching a sermon addressing the irony of newspaper advertisements itemizing the sale of slaves alongside horses, cows and sheep.

Taney's summation in that case does not seem like the calculated words of a defense attorney. His prose seemed to earnestly represent his thoughts at the time. He stated:

A hard necessity, indeed, compels us to endure the evil of slavery for a time. It was imposed upon us by another nation while we were yet in a state of colonial vassalage. It cannot easily or suddenly be removed. Yet, while it continues, it is a blot on our national character; and every real lover of freedom confidently hopes that it will effectually, though it must be gradually, wiped away, and earnestly looks for the means by which this necessary object may be attained.

Samuel Tyler, Memoir of Roger Brooke Taney, L.L.D.: Chief Justice of the Supreme Court of the United States 130–31 (1872).

Although these words may appear to portend what Taney's views are, and therefore how he might rule on the subject of slavery, that form of supposition is a fool's errand. Many a lawyer attempts to guess how a judge might think through a problem based on that judge's background or life experience. Such a pursuit is an inexact science that rarely yields reliable results.

See, e.g., Smith, supra note 5, at 262–63, commenting upon Taney's interactions with African American people, “One of the little incidents that has been noted shows his attitude towards the Negro. He was passing by a slave's cabin in Washington, and saw a tiny colored girl struggling under a pail of water too heavy for her. The great Chief Justice took the pail from the child's hand and carried it to the cabin.”

Dred Scott presented a scenario frighteningly similar to the Somerset case with an entirely different result.

See generally, William M. Wiecek, Lord Mansfield and the Legitimacy of Slavery in the Anglo-American World, 42 U. Chi. L. Rev. 86 (1974).

The Dred Scott case came at a tumultuous time in American history.

See generally, Louise Weinberg, Dred Scott and the Crisis of 1860, 82 Chi.-Kent L. Rev. 97 (2007).

He put the issue in the case as follows: “The question is simply this: Can a Negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States . . .?”

Dred Scott, at 403.

Despite earlier writings to the contrary, Taney relied on a nakedly racist rationale for the key proposition of the case—Blacks are so inferior no whites could have possibly thought them worthy—whether slave or not—of being part of “our” political community.

Id. at 404–05, “The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race.”

Taney used three principal arguments in surmising that Blacks could not be deemed to be part of the political community at the formation of the United States. He started with the Declaration of Independence, the document that colonists relied upon to declare their separation from England. Taney asserted that the now famous words “[w]e hold these truths to be self-evident, that all men are created equal,”

The Declaration of Independence para. 2 (U.S. 1776).

The interesting historical note is that free Blacks lived and fought in the American Revolution. Indeed, the first person to lose his life in the fight for independence of the colonies was Crispus Attucks, a Black man.

The second major tactic Taney employed was invoking the notion of inferiority. The following is a revealing quote from the opinion.

Let's just take a step back from the opinion for a moment. Taney's comments undermine the fact that free Blacks at the time were already part of the political community. In many states, Blacks voted and were deemed part of that state's citizenry. His statement about having no rights which the White man was bound to respect

Id.

This quote is emblematic of Chief Justice Taney's opinion. He sought in every way possible to leave no stone unturned regarding the issue of whether Blacks could be thought part of the political community and thus citizens.

Michael Meranze, Hargrave's Nightmare and Taney's Dream, 4 UC Irvine L. Rev. 219, 236 (2014), commenting on the conflict between race and the Constitution as presented by Taney in Dred Scott, “Taney seeks to make the Federal constitutional order coterminous with the entirety of the colonizing process. The history of America, in this telling, was a war of the races and the Constitution simply one moment in that history…. Law-—even constitutional law—was a simple symptom of this underlying racial structure. Put another way, Taney aimed to make his constitutional argument by insisting that the Constitution—at least regarding the enslaved and their rights-—made no difference at all.”

Taney's third tactic was to reference England and the rest of Europe as adherents to his postulate regarding inferiority.

Id. at 478, “But with regard to slavery amongst the Romans, it is by no means true that emancipation, either during the republic or the empire, conferred, by the act itself, or implied, the status or the rights of citizenship.”

Taney's reference to England and its position on slavery seems to neglect the persistent moral, political, religious, and economic dilemma that England grappled with from the time of the Somerset opinion until the abolition of slavery in 1833. Given the Somerset opinion, and subsequent actions throughout the Empire, concluding that Blacks could never be contemplated as part of the English citizenry is certainly subject to question.

Dred Scott lost his case. Interestingly, the son of a former owner bought Scott and his family's freedom and Scott died soon after the opinion was issued. Justice Taney did not save the confederacy. I say confederacy intentionally. The war came a scant 3 years later. You know how it ended. But think of how these events relate to what you did today. As a result of Dred Scott and the union victory, the Civil War Amendments to the Constitution were passed.

See generally, Paul Finkelman, Scott v. Sandford: The Court's Most Dreadful Case and How It Changed History, 82 Chi.-Kent L. Rev. 3 (2007), writing on the historical, legal and political impact of the Dred Scott case.

What are the takeaways from today's lecture? Racism is not a new malady that has befallen our societies.

Laura Kyte, Admitting A Wrong: Apology for the Historical Injustice of the Dred Scott Case, 47 B.Y.U. L. Rev. 317, 349 (2021), commenting on the implications of the role of the Supreme Court in interpreting the United States Constitution as being ‘colorblind:’ “The idea that the Court's interpretation of the Constitution is, or should be, colorblind is a myth. Since the time of Justice Harlan's dissent from Plessy, the Court has often referred to the Constitution as colorblind. Or, at least that a colorblind Constitution is an ideal that our systems of governance should strive for. However, this fails to take into account the reality that race has played since the founding of our nation. See also, A. Leon Higginbotham, Race, Racism and American Law. by Derrick A. Bell, Jr., 122 U. Pa. L. Rev. 1044–46 (1974), considering how racism is perceived in the American legal and political system, “Despite the millions of words espoused by lawyers, by lawyer-politicians, and sometimes even by law professors proclaiming the progress of American law, among many there still persists the nagging doubt whether legally sanctioned racism of the past and its present impact will be eradicated in this decade or even in this century. Did the nation reach its highest plateau of racial options and understanding in the late 1960's? Will future improvements be miniscule at best, or will the progress of the 1960's suffer a steady erosion?” See generally, Derrick A. Bell, Jr., Race, Racism and American Law (1973).