Article 4, Section 2, Clause 3
[Volume 4, Page 525]
Sommersett's Case20 How. St. Tr. 1, 80--82 K.B. 1771
Lord Mansfield.--On the part of Sommersett, the case which we gave notice should be decided this day, the Court now proceeds to give its opinion. I shall recite the return to the writ of Habeas Corpus, as the ground of our determination; omitting only words of form. The captain of the ship on board of which the negro was taken, makes his return to the writ in terms signifying that there have been, and still are, slaves to a great number in Africa; and that the trade in them is authorized by the laws and opinions of Virginia and Jamaica; that they are goods and chattels; and, as such, saleable and sold. That James Sommersett is a negro of Africa, and long before the return of the king's writ was brought to be sold, and was sold to Charles Steuart, esq. then in Jamaica, and has not been manumitted since; that Mr. Steuart, having occasion to transact business, came over hither, with an intention to return; and brought Sommersett to attend and abide with him, and to carry him back as soon as the business should be transacted. That such intention has been, and still continues; and that the negro did remain till the time of his departure in the service of his master Mr. Steuart, and quitted it without his consent; and thereupon, before the return of the king's writ, the said Charles Steuart did commit the slave on board the Anne and Mary, to safe custody, to be kept till he should set sail, and then to be taken with him to Jamaica, and there sold as a slave. And this is the cause why he, captain Knowles, who was then and now is, commander of the above vessel, then and now lying in the river of Thames, did the said negro, committed to his custody, detain; and on which he now renders him to the orders of the Court. We pay all due attention to the opinion of sir Philip Yorke, and lord chancellor Talbot, whereby they pledged themselves to the British planters, for all the legal consequences of slaves coming over to this kingdom or being baptized, recognized by lord Hardwicke, sitting as chancellor on the 19th of October, 1749, that trover would lie: that a notion had prevailed, if a negro came over, or became a Christian, he was emancipated, but no ground in law: that he and lord Talbot, when attorney and solicitor-general, were of opinion, that no such claim for freedom was valid; that though the statute of tenures had abolished villeins regardant to a manor, yet he did not conceive but that a man might still become a villein in gross, by confessing himself such in open court. We are so well agreed, that we think there is no occasion of having it argued (as I intimated an intention at first,) before all the judges, as is usual, for obvious reasons, on a return to a Habeas Corpus. The only question before us is, whether the cause on the return is sufficient? If it is, the negro must be remanded; if it is not, he must be discharged. Accordingly, the return states, that the slave departed and refused to serve; whereupon he was kept, to be sold abroad. So high an act of dominion must be recognized by the law of the country where it is used. The power of a master over his slave has been extremely different, in different countries. The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory. It is so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.
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