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EXTINCTION 
 
 VILLENAGE AND SLAVERY IN ENGLAND; 
 
 SOMERSET'S CASE. 
 
 g. ^ttper nab btfort t^e PaBsat^nsitta pistorital Somtg. 
 
 Br EMORY WASHBURN. 
 
 BOSTON: 
 
 PRINTED BY JOHN WILSON & SON. 
 1864. 
 
W5 
 
SOMERSET'S CASE, 
 
 THE EXTINCTION OF SLAVERY IN ENGLAND. 
 
 It seems but a fitting complement to the articles which 
 have been read from time to time before the Historical So- 
 ciety, upon the condition of the slave, and the extinction of 
 slavery in Massachusetts, to say something of the institution 
 in England, and when and how it ceased to exist there. The 
 subject in itself is interesting ; and it borrows, moreover, con- 
 siderable interest from the fact, that the courts of Massachu- 
 setts have fully kept pace with those of England in holding 
 that the common law of both was and is hostile to the exist- 
 ence of slavery in any form. 
 
 What, at first sight, might seem to be a little remarkable, is, 
 that while it is, at a certain time, assumed that slavery does 
 not and cannot exist in England, the history of a thousand 
 years shows that it was once an existing institution there ; 
 and no statute can be traced, abolishing or declaring it unlaw- 
 ful. It is, moreover, a singular fact, that historians do not 
 agree when or how it took its rise, or when or how, in one 
 form, it ceased to exist there ; but that it did prevail, first in 
 the form of villenage, and afterwards in that of modern negro 
 slavery, is notorious as an historical fact. 
 
 Some have contended that villenage grew out of the intro- 
 duction of the feudal system, after the Conquest in 1066, 
 
 W 
 ivi23lJi368 
 
4 VILLENAGE. 
 
 whereby the property in the lands became vested in a few 
 hands, while the great body of the people were reduced to a 
 condition of dependence, and even bondage (see Barrington 
 on Stat. 277). Others insist that it existed under the Saxon 
 government, and owed its origin to the German institutions 
 which the Saxons or Jutes brought with them into England. 
 That something answering to villenage existed extensively 
 among the Saxons, seems evident from the early writers upon 
 law and history ; though it is a singular fact, that writers of 
 the highest authority are found to this day advocating each 
 side the question, whether the feudal system ever prevailed 
 in England before the time of William the Conqueror. 
 
 It is enough for our present purpose to state, what no one 
 of these denies, that, from the earliest period of authentic 
 history, there did exist all over England a large and numerous 
 class of men, who were called " villeins," and were practically 
 and essentially slaves. They were of two kinds, or classes ; 
 one, of farm-laborers, working upon the land upon which they 
 lived, and to which they were attached as appendages, and 
 were bought and sold with the land : these were known as 
 villeins regardant or appendant. The other class were called 
 villeins in gross; their relation to the lord- being of a personal 
 character, so far as their services were concerned, and the 
 property in them not being connected with the ownership or 
 occupancy of any land. But, in respect to both classes, there 
 was a property in a villein recognized by law, and one which 
 could be enforced by remedies at law. 
 
 Of the power of the owner over his villein, a writer of high 
 authority, when speaking of the Saxons in England, says, 
 " The next order of people were the slaves, or villains ; a lower 
 kind of ceorls, who, being part of the property of their lords, 
 were incapable of any themselves ; " "a sort of people who 
 were in downright servitude, used and employed in the most 
 servile works, and belonging, they, their children, and effects, 
 to the lord of the soil, like the rest of the stock or cattle 
 
VILLENAGE. . 6 
 
 upon it. However, the power of the lords over their slaves 
 was not absolute. If an owner beat out a slave's eye or a 
 tooth, the slave recovered his liberty ; if he killed him, he 
 paid a fine to the king" (1 Keeve's Hist, of Eng. Law, 4to 
 ed., 5). 
 
 It was a maxim of law in the time of Henry III., and as 
 long as pure villenage was recognized, that whatever the 
 villein acquired belonged to his master (ib., 102).* 
 
 When it is remembered that these villeins, or slaves, were 
 by far the most numerous class of persons in England, and that 
 they were originally often of the same blood with their owners, 
 it is not surprising that we early find them creating disturb- 
 ance by their restlessness under a state of bondage so base and 
 degrading. There is a statute of Richard II. which recites 
 that they had been accustomed to assemble in a riotous man- 
 ner, endeavoring to withdraw their services from their lord ; 
 and it then goes on to authorize and require these rebellious 
 villeins to be imprisoned, without bail, unless they obtain the 
 consent of their lord. 
 
 This law and the manner in which it was enforced is said to 
 have led to the famous insurrection of Wat Tyler ; where 
 more than sixty thousand villeins and men of low degree 
 assembled on Blackheath, and took possession of London, 
 demanding the abolition of bondage. 
 
 And, so far as legislation was concerned, it had uniformly 
 either ignored the villeins altogether, or had been aimed only 
 at restraining their outbreaks, and enforcing their obe- 
 dience. 
 
 But, for reasons that are not difficult to understand, courts 
 of justice have always, as organized under the common law, 
 with a few exceptions as to particular judges, been found 
 
 • It may be added, moreover, that, in some instances, the rights expressed and 
 duties imposed between the master and his villein were too indecent to be transcribed, 
 even in the Latin in which some of them were registered, to say nothing of such as 
 were only puerile and ridiculous. 
 
6 . VILLENAGE. 
 
 favorable to personal freedom ; and, in administering the law 
 in the matter of villenage, the English courts were early 
 found ready to apply the most stringent rules of evidence in 
 requiring proof of an individual being a villein, whether he 
 was suing, as he might do, for his freedom, or his master was 
 suing, as he might do, to regain possession of him, if he had 
 escaped. The courts required the master to show, affirma- 
 tively and beyond reasonable doubt, that the party held in 
 bondage was in fact a villein : the legal presumptions being 
 all in favor of his freedom. 
 
 Another circumstance which operated to do away villenage 
 was the gradual recognition of a title to the land which the 
 villein, or, it might be, his father, had cultivated. The lord 
 himself began to perceive that a tenant, who feels that he 
 has an interest in the soil he cultivates, will be far more 
 faithful in bestowing the requisite labor upon it, and will 
 produce a proportionably larger amount of crops for con- 
 sumption, than one who works without compensation and 
 without hope ; and the consequence was, that, in numerous 
 cases, villeins began to be recognized as having legal free- 
 holds in the lands they occupied, till, in a considerable part of 
 England, there grew up, from this origin, a system of estates 
 called copyholds, which are familiar at this day to every Eng- 
 lish lawyer. 
 
 But probably the most effective instrument in changing 
 the condition of the English villein — for, as 1 have already 
 said, we look in vain for any statute as doing this — was the 
 preaching and writings of Wickliffe, who was contemporary 
 with Richard 11. All writers agree in ascribing to his mission 
 of reform a direct agency in breaking down the lines which 
 had hedged in villenage as an institution of the common law. 
 It was one of the doctrines which he and his followers taught, 
 that " it was contrary to the principles of the Christian reli- 
 gion, that any one should be a slave : " and so readily did this 
 chime in with the public sentiment of the day, that we find, 
 
VILLENAGE. i 
 
 in a little more than a hundred years after Wickliffe's death, 
 Henry VIIL, a monarch by no means of a delicate or sensi- 
 tive religious conscience, manumitting Henry Knight, a 
 tailor, and John Herle, a husbandman, " our natives ; " recit- 
 ing as a reason, " Whereas God created all men free, but 
 afterwards the laws and customs of nations subjected some 
 under the yoke of servitude, we think it pious and meritorious 
 with God," <fec., and declaring them free. 
 
 One thing, in considering this subject, is noticeable ; and 
 that is the rapidity with which, after Wickliffe's time, public 
 sentiment advanced in England in the direction of emancipat- 
 ing the class of villeins, and how soon it got ahead, if I may 
 use such a term, of the law itself upon the subject. Thus 
 Coke, who did not publish his commentary upon Littleton, 
 called his "First Institute," till 1628, — the third year of 
 Charles I., — devotes the matter of some fifty octavo pages in 
 that work to the subject of the law of villenage ; when; 
 in fact, the last case to be found in any book of English re- 
 ports upon the subject was decided in the fifteenth year of 
 James I. ; and only four cases of the kind are reported for the 
 space of fifty years before that. 
 
 As one reads these reports, meagre as they are, he is 
 constantly struck with the struggle there is in the judicial 
 mind in giving force and effect to the law, and, at the same 
 time, favoring the claim of freedom; holding the adverse 
 party to the strictest proof, and always construing a doubtful 
 point, as they express it, in favorem lihertatis (Noy's Reports, 
 27 ; Dyer's Reports, 283 ; 11 State Trials, Hargrave's argu- 
 ment, 342). 
 
 Villenage may therefore be assumed to have died out in 
 England in the last years of Elizabeth, or the first of James I. ; 
 and neither the term nor the idea ever seems to have found 
 its way into the Colonies of America. And yet, as already 
 remarked, it was not accomplished by any act of legislation, 
 or even judicial decision. The notion that one man might 
 
8 VILLENAGE. 
 
 have a property in another, by the common law, was still 
 retained, as will be seen, long after its practical abrogation 
 by the omnipotence of public sentiment. 
 
 By a singular coincidence, negro slavery began to obtain 
 a foothold in England about the time of the extinction of that 
 of villenage. It is stated, that, " in the year 1553, four and 
 twenty negroes were brought into this island from the coast 
 of Africa, and immediately to an English port, as at that time 
 we had no American or sugar trade" (Harrington's Stat. 281, 
 quoting Hakluyt). And Fuller, whose " History of the 
 Worthies of England " was published in 1662, in his char- 
 acter of the " good sea-captain," says, " In taking of a prize, 
 he most prizeth the men's lives whom he takes, though some 
 of them may chance to be negroes or savages ; and it is the 
 custom of some to throw them overboard." " But our captain 
 counts the image of God, nevertheless, his image, cut in ebony 
 as if done in ivory " (Barrington, 281, m.). 
 
 Between that period and the time of Somerset's case, of 
 which I am to speak more at length, questions occasionally 
 arose in the English courts as to the right of property in negro 
 slaves ; in some of which the right was recognized, and in 
 others denied. 
 
 The slave-trade, it should be remembered, was not only 
 lawf^il during this time, but England, with her accustomed 
 disposition to grasp whatever should give her commercial 
 influence and advantage, was monopolizing a trade that was 
 enriching Bristol and other of her cities ; and all her colonies 
 in which slave-labor could be employed, including those of 
 New England, were made the marts of a commerce so base 
 and abominable. While, therefore, there was in the English 
 courts the same feeling of disfavor towards what was called 
 the new slavery as had been manifested in respect to the 
 ancient form of villenage, it is not singular, that, at times, the 
 ancient notion of the common law, sustained as it was by 
 the policy of the government and the trade and business 
 
VILLENAGE. 9 
 
 of the nation, should be found to prevail in questions involv- 
 ing the rights of the master to the person and services of the 
 slave. 
 
 It is stated in Rushworth's " Historical Collections," that, 
 in the eleventh of EHzabeth (which would have been 1569), 
 one Cartwright brought a slave from Russia into England, and 
 " would scourge him : " but of what color he was, it is not 
 stated ; and it is said, when " he was questioned for this," " it 
 was resolved that England was too pure an air for a slave to 
 breathe in" (11 State Trials, 344; Barrington, 282). Mr. 
 Hargrave, in his argument for Somerset before Lord Mansfield, 
 endeavored to apply this as a conceded dogma of the common 
 law, although at that time, as stated in the course of that trial, 
 there must have been fourteen or fifteen thousand slaves in 
 England. The thought here expressed is among the highest 
 and most glorious eulogies which could be uttered in praise 
 of any state or government ; and it may be well to examine 
 for a moment with what justice it was then claimed for the 
 air of England, in the face of her history for centuries after 
 the slave-trade obtained a footing in her commercial enter- 
 prise. The sentiment is said to have been authoritatively 
 uttered in 1569. It is reported in 1772, without the citation 
 of a single instance of its having been recognized during that 
 long interval of time, during which the question of property 
 in slaves had been repeatedly raised in the English courts ; 
 and when repeating it, as he did, Mr. Hargrave was obliged 
 to controvert the position taken by Mr. Barrington, whom he 
 cites, who ascribes this statement to the famous John Lilburn, 
 whose memorable imprisonments and whippings and fines, 
 and sittings upon the pillory, and gaggings, by the order of the 
 Star Chamber, in the time of Charles I., are among the dis- 
 graceful records of criminal justice in England. He was a 
 radical of the severest stamp ; and his declarations, made in 
 the course of his sharp and protracted controversy with the 
 arbitrary power of Charles, through the press, may very pro- 
 
 2 
 
10 VILLENAGE. 
 
 bably require to have some little allowance made for their 
 exactness, or the precision with which they were limited in 
 their terms. Barrington adds to his notice of what Lil- 
 burn had advanced, " But it does not from thence follow 
 that all his doctrines were law. A slave may continue in a 
 state of servitude, though he breathes the air of this land of 
 liberty, the law of which will protect him from too severe 
 punishments of his master, though it may not entirely emanci- 
 pate him " (Barrington, 282, n.). 
 
 And, in the famous system of laws proposed by the re- 
 nowned John Locke for Carolina, one article was in these 
 words : " Every freeman of Carolina shall have power and 
 authority over his negro slaves, of what opinion or religion, 
 for ever " (Barrington, 280). This had reference to the 
 notion to which Blackstone refers, which prevailed with many, 
 that, while a heathen might be held in slavery, a baptized 
 Christian, though a negro, might not be. This constitution of 
 Mr. Locke was established in 1669 ; but was repealed, at the 
 instigation of the people of the Carolinas, in 1693. I have 
 referred to this only as showing how far this pretended purity 
 of English air as to slavery affected the moral health and 
 tone of her great and good men, while Massachusetts and 
 other of the English Colonies were struggling to rid them- 
 selves of an institution with which they did not sympathize. 
 
 I have said that the question of property in negro slaves 
 arose from time to time in the English courts between their 
 introduction in 1553, and the final settlement of the question 
 in 1772, which were variously determined ; the court, in each 
 case, going back to the common law for principles to guide 
 them, and in no case, I believe, referring to any English stat- 
 ute upon the subject. 
 
 In 1669, an action of trover was tried in the King's Bench 
 for a hundred negroes, in which the jury found a special ver 
 diet, " that the negroes were infidels, and the subjects of an 
 infidel prince, and are usually bought and sold in America as 
 
VILLENAGE. 11 
 
 merchandise ; and that the plaintiff bought these, and was in 
 possession of them till the defendant took them." It was 
 argued that there could be no property in the person of a man, 
 sufficient to maintain trover ; but the court held, " that ne- 
 groes being usually bought and sold among merchants as 
 merchandise, and also being infidels, there might be property 
 in them sufficient to maintain trover " (Butts v. Penny, 
 2 Levinz's Reports, 201). In another report of the case, it 
 is said, " They are by usage tanquam bona, and go to adminis- 
 trator until they become Christians ; and thereby they are 
 enfranchised " (3 Keble's Reports, 785). 
 
 In a case in the English Common Pleas, in 1693, an action 
 having been brought for so many whelps, without stating whe- 
 ther they "were of dogs or of bears or other wild animals, a 
 question arose whether property could be predicated of such 
 things ; and the court in giving judgment, while seeking for 
 analogies to guide them, remaVk that " trover lies for musk- 
 cats and of monkeys, because they are merchandise ; and, for 
 the same reason, it has been adjudged that trover lies of 
 negroes " (Chambers v. Wackhouse, 3 Levinz, 336). 
 
 Lord Holt, who was Chief Justice under William III., was 
 of the number who seems to have set his face against recog- 
 nizing negro slavery in England ; although he expressly 
 recognizes villenage as a common-law right, as well as the 
 legality of the traffic in slaves in Virginia. In a case that 
 came up before him to recover the price of a negro alleged 
 to have been sold in London, he held that the plaintiff could 
 not recover, unless he alleged the sale to have been made in 
 Virginia ; and that, as soon as a negro comes into England, he 
 is free. " One may be a villein in England, but not a slave." 
 In the language of his associate. Judge Powel, "the law 
 takes no notice of a negro " (Smith v. Brown, 2 Salkeld's Re- 
 ports, 666 ; Holt's Rep., 495). 
 
 In another case, before the same chief justice, the action 
 was trespass for taking unum JEthiopem, Anglice vocatum (" a 
 
12 VILLENAGE. 
 
 negro "), of the plaintiff, of the value of a hundred pounds. 
 Upon- the trial, it appeared that the negro had been a slave 
 in Barbadoes ; had been assigned to the widow of his owner 
 as dower out of her husband's real estate, according to the 
 law of Barbadoes ; that she had brought him to England, 
 where she died, leaving the negro, who was now claimed by 
 the heir of his former owner. The jury found as a special 
 verdict, " that the negro had been baptized after taking him " 
 from Barbadoes ; and the case was argued upon the point, 
 whether, by such baptism, he had become free. The counsel 
 for the defence said, that, " being baptized according to the 
 rite of the church, he is thereby made a Christian ; and Chris- 
 tianity is inconsistent with slavery." He refers, by way of 
 analogy, to the case of the Turks : " They do not make slaves 
 of their own religion, though taken in war ; and if a Christian 
 be so taken, yet if he renounce Christianity, and turn Maho- 
 metan, he doth thereby obtain his freedom." The case was 
 decided in favor of the defendant, on the ground, as stated 
 by our reporter, that " no action of trespass would lie for 
 taking away a man generally, though there might be a special 
 action of trespass for taking his servant" (Chamberlain v. 
 Harvey, 5 Modern Reports, 182 ; Carthew's Reports, 396 ; 
 Lord Raymond's Reports, 146). 
 
 And yet a case is reported immediately afterwards, by Lord 
 Raymond, wherein it was adjudged that " trover would lie 
 for a negro boy, for they are heathens, and therefore a man 
 may have property in them ; and that the court, without aver- 
 ment made, will take notice that they are heathens." Black- 
 stone (1 Commentaries, 425) refers to this notion, that the 
 baptism of a slave affected his status of slavery ; at which 
 one of his annotators expresses surprise that he should con- 
 descend to treat of this ridiculous notion (Christian's note) : 
 but it is certainly no less ridiculous than true, that courts 
 gravely entertained the inquiry. 
 
 Another case came up before Lord Holt in 1707, in the 
 
VILLENAGE. 13 
 
 time of Queen Anne, which was also an action of trover for 
 uno jEthiope vocato (" a negro "). The counsel for the plain- 
 tiff relied partly upon the acknowledged law of the planta- 
 tions, and partly upon the Levitical law, whereby the master 
 had the power to kill his slave, as " he is but the master's 
 money." The court, however, denied the doctrine, affirming 
 that an action does not lie for a negro any more than for any 
 other man ; "/or the common law takes no notice of negroes *" 
 being different from other men. By the common law, no man 
 can have a property in another, but in special cases, as in a 
 villein, but even in him not to kill him : so in captives took in 
 war ; but the taker cannot kill them, but may sell them to 
 ransom them " (Smith v. Gould, 2 Lord Kaymond, 1274 ; 
 Salkeld, 666). 
 
 These opinions of Lord Holt, one of the strongest and 
 wisest men that ever sat upon the King's Bench, must un- 
 doubtedly have had great effect in giving a proper direction 
 to the public mind of England ; but it is nevertheless true, 
 that not only were there slaves in England at that time, and 
 continued to be up to Lord Mansfield's memorable judgment, 
 but more than one of the English judges of unquestioned 
 eminence and ability insisted and affirmed, as late as the mid- 
 dle of the last century, that a slave was the subject of property 
 in England, and might be sued for as such. Among these 
 were Lords Talbot and Hardwicke ; than one of whom, at least, 
 no abler man has ever sat upon the woolsack. In 1749, Lord 
 Chancellor Hardwicke reviews the cases I have cited above, 
 and says, " I have no doubt but trover will lie for a negro 
 slave. It is as much property as any other thing." He says 
 that he and Lord Talbot, when they were Attorney and Soli- 
 citor General, gave an opinion that christening a slave did not 
 alter his condition. He likens the condition of the negro 
 slave to that of a villein at common law, and that there was 
 no law aholishing villenage (Pearne v. Lisle, Ambler's Reports, 
 76, 77). 
 
14 VILLENAGE. 
 
 Without taking up any more time with particular cases, 
 enough has been seen to give us some idea of the state of 
 mind in the courts and among the people when the occasion 
 came up for a final decision of the question. In speaking of 
 this, Lord Campbell confirms what was intimated in an 
 earlier stage of this examination, that " Lord Mansfield jirst 
 established the grand doctrine, that the air of England is too 
 pure to be breathed by a slave ; " though this, it will be 
 remembered, was still thirty-four years before she abolished 
 her slave-trade, and more than sixty years before she set her 
 slaves free in her colonies. 
 
 The wretched sophistry of the civil rights of a man, in 
 respect to his personal freedom, depending upon his being a 
 heathen or otherwise, had long since been discarded ; so that 
 the issue was the naked one. Could a man be held a slave in 
 England ? It was a question of great interest in the abstract ; 
 but in its effect upon fourteen or fifteen thousand slaves then 
 in England, estimated at more than seven hundred thousand 
 pounds sterling, it became a matter of momentous pecuniary 
 consideration to great numbers of her citizens. On the other 
 hand, besides the prevailing sentiment in the minds of so 
 many of the citizens, the circumstances of the particular case 
 in which the question was to be presented were greatly in 
 favor of the negative of the proposition. 
 
 The name of the slave was James Somerset, who had been 
 brought by his master from Virginia, as stated in the report 
 of the case, to London. In some of the accounts, it is stated 
 that- he there fell sick, and was turned out into the street to 
 die, and was found in this condition by the celebrated Gran- 
 ville Sharp and others associated with him, and, under their 
 care, was restored to health ; when his master claimed him as 
 his property, and carried him on board a vessel in the Thames, 
 to transport him back to Virginia. Thereupon certain indi- 
 viduals, by the procurement, undoubtedly, of Sharp, sued 
 out a habeas corpus from Lord Mansfield ; and he, wishing to 
 
VILLENAGE. 1 5 
 
 have the matter heard before the King's Bench, transferred 
 the proceedings into that court. This was in December, 1771. 
 
 It was in the preparation and prosecution of the proceed- 
 ings in this case, that Granville Sharp, whose name is now 
 so honorably distinguished for its connection with the sup- 
 pression of the slave-trade, was first publicly known in Eng- 
 land. 
 
 Mr. Hargrave, a name familiar to the profession, was one 
 of the leading counsel in favor of Somerset ; while Mr. Wal- 
 lace, also an eminent barrister, and Mr. Dunning, one of the 
 strong men of England, and the original founder of the noble 
 house of Ashburton, conducted the defence. The case may 
 be found in Lofft's " Reports," p. 1 ; and the able and learned 
 argument of Mr. Hargrave is found in the 11th State 
 Trials, 339. The whole history of English villenage and 
 slavery is fully examined in the arguments of the counsel, 
 and the point fully discussed how far negro slavery is a differ- 
 ent institution from that of villenage ; but the length to which 
 this article has already grown forbids an analysis of the 
 several points which were pressed upon the consideration of 
 the court. 
 
 The hearing of the case seems to have come up on the 
 14th May, 1772 ; and the final opinion was given on the 22d 
 June following. Although the magnitude of the questions 
 involved would naturally lead the court gravely to dehberate 
 and consider before deciding them, it is obvious, from the 
 efforts of the distinguished counsel, and the time occupied by 
 the court in hearing and deliberating upon the same,. that the 
 main question till that time was an open one, to be then set- 
 tled for the first time, and upon principle rather than authority. 
 Indeed Lord Mansfield says himself, that he advised the par- 
 ties to settle the matter between them, as five or six other 
 cases that had come before him had been, under his advice ; 
 nor did he give any opinion till pressed to do so by the perti- 
 nacity of the parties in insisting upon a decision. 
 
 y 
 
\ 
 
 16 VILLENAGE. 
 
 The opinion of the Chief Justice as reported is quite brief, 
 and, beyond a statement of what is decided, contains few 
 general or important suggestions. 
 
 " If the parties will have judgment," says he, ^^ jicti justitia 
 ruat ccelum, let justice be done, whatever be the conse- 
 quences. Fifty pounds a head may not be a high price : 
 then a loss follows to the proprietors of above seven hundred 
 thousand pounds sterling." " An application to Parliament, 
 if the merchants think the question of great commercial con- 
 cern, is best, and perhaps the only method of settling the 
 point for the future." Remarks like these, which fell from 
 the Chief Justice, clearly indicate a hesitation and reluctance 
 to meet the question with all its consequences ; but, at a sub- 
 sequent day, he remarked, " 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 is 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 dis- 
 charged." 
 
 A step so important in the great scheme which had then 
 begun to develop itself for putting an end to slavery and the 
 slave-trade in England could not fail to be seized upon by the 
 friends of the measure to a good purpose, and it told with 
 great effect in the coming struggle which so long agitated 
 England. And when it is remembered, as I have more than 
 once said, that, up to this stage of the movement, no act of 
 legislation had been invoked in its aid, I know not how better 
 to do justice to the agency by which practical emancipation 
 was wrought out in England than by borrowing the language 
 of Judge Best in a case v/here the owner of slaves on the 
 coast of Florida brought an action against the commander of 
 
VILLENAGE. 17 
 
 an English squadron and man-of-war, who, while on our coast 
 in the war of 1812, received and harbored certain slaves who 
 had escaped from their master, an English subject, resident 
 within the Spanish Territory of Florida. The claim was dis- 
 allowed ; and Mr. Justice Best, in giving his opinion, cites the 
 case of Somerset, and adds, " It is a matter of pride to me to 
 recollect, that while economists and politicians were recom- 
 mending to the Legislature the protection of this traffic, and 
 senators were framing statutes for its promotion, and declar- 
 ing it a benefit to the country, the judges of the land, above 
 the age in which they lived, standing on the high ground of 
 natural right, and disdaining to bend to the lower doctrine 
 of expediency, declared that slavery was inconsistent with 
 the genius of the English Constitution, and that human beings 
 could not be the subject-matter of property. As a lawyer, I 
 speak of that early determination, when a difierent doctrine 
 was prevailing in the senate, with a considerable degree of 
 professional pride." Forbes v. Cochrane, 2 Barnewall and 
 Cresswell's Reports, 470. 
 
 In the light of our own history, I might add, if I were 
 not transcending the limits of my subject, that, as citizens of 
 Massachusetts, we might all indulge a pride equally just and 
 generous, that here, in the courts of the Province, the ruling 
 of Lord Mansfield was anticipated by two years, in favor of 
 personal freedom and human rights. 
 
 But my purpose was only to speak of the extinction of 
 slavery in the mother-country ; and my chief regret is that 
 I have felt obliged, in doing so, to tax so heavily the time and 
 patience of those for whom, as well as for my own curiosity 
 and satisfaction, this research has been made. 
 
 Note. — In all the published accounts of Somerset's case which 
 had fallen under my notice, he is spoken of as having come from 
 Virginia to London. In the Journal of Granville Sharp himself, 
 preserved in the memoir of his life, he speaks of him as " James 
 Somerset, a negro from Virginia." The memoir states that he had 
 
 8 
 
"18 VILLENAGE. 
 
 been brought to England in November, 17G9, by his master, Mr. 
 Charles Stewart ; and, in process of time, left him. Stewart found an 
 opportunity of seizing him unawares ; and he was carried on board 
 the " Ann and Mary," in order to be carried to Jamaica, and there 
 sold as a slave. But there is no intimation that he had been treated 
 in the manner mentioned by some of the writers from which the 
 statement as to his having been sick, and turned into the street, has 
 been taken. 
 
 Since the above article was prepared, I have been kindly furnished, 
 ^ by my friend Hon. James M. Robbins (one of our associates, who was 
 present when this paper was read), with original papers and letters, 
 from which it appears that Somerset was taken from Boston to Eng- 
 / land, and was the servant of Mr. Charles Stewart, who was the 
 cashier and paymaster of customs in North America in 1771 and for 
 some years previous, and resided in Boston. Mr. Robbins has also 
 given me this brief account of Mr. Stewart. He was a Scotch gen- 
 tleman, and left home, with his servant Somerset, in 1769 ; still 
 holding his office some years longer, through his deputy, Nathaniel 
 Coffin, the father of Admiral Sir Isaac Coffin and Gen. John Coffin 
 of the British Navy and Army. Mr. Stewart was an intimate friend i 
 and countryman of the maternal grandfather of Mr. Robbins, who 
 also went to England in 1771-2, and was present in court with Mr. 
 Stewart at the first hearing of Somerset's case ; which caused 
 Mr. Stewart to write him in reference to this matter. The mother 
 of Mr. Robbins was a child of thirteen years of age when Mr. 
 Stewart and his servant went from here to England in 1769; and 
 informed Mr. Robbins, many years ago, that Stewart often visited 
 her father, who was James Murray, Esq., of Boston, and brought 
 Somerset with him to their house, then in Milton. 
 
 I am permitted to give the following extract from a letter written 
 by Mr. Stewart to Mr. Murray from London, June 15, 1772 : " I 
 suppose you will be desirous to hear how the negro cause goes on. 
 There have been two more hearings in it. I did not attend either ; 
 but am told that some young counsel flourished away on the side of 
 liberty, and acquired great honor. Dunning was dull and languid, 
 and would have made a much better figure on that side also. Lord 
 Mansfield said it was a cause of the greatest importance ; that great 
 inconvenience and ill consequences must attend the decision of it 
 either way ; and therefore he would not give judgment in it, except 
 insisted on by the parties. In that case, he would take the opinion 
 
VILLENAGE. 19 
 
 of all the judges. If they agreed, judgment should be pronounced ; 
 if not, the cause must be argued again before them all. In the mean 
 time, he strongly recommended to make it up, hinted at emancipating 
 the slave, and advised the West-India merchants, &c., to apply to 
 Parliament for an act for further securing their property. Upon the 
 whole, everybody seems to think it will go in favor of the negro. 
 The West-India planters and merchants have taken it off my hands ; 
 and I shall be entirely directed by them in the further defence of it. 
 It has brought my name forward — or rather that of Capt. Stewart, 
 
 James Stewart, Stewart, Esq. — much more than I would wish. 
 
 The papers, however, have been tolerably decent with respect to me ; 
 
 but I am very sorry for the load of abuse thrown on L — d M 
 
 for hesitating to pronounce judgment in favor of freedom. Dunning 
 has come in also for a pretty good share for taking the wrong side. 
 This general subject of conversation, of which I have been involunta- 
 rily the cause, is now suspended for a time." 
 
 It is not without its significance, that the memory of a gentleman 
 as highly connected in family, and as much honored in this community 
 Sa he was by the offices of distinction and power which he filled, 
 should at this day be recalled to the present generation chiefly by his 
 association with the name and history of the slave whom he took 
 with him as a body-servant in his visit to the mother-country. 
 
 In respect to the counsel concerned in this trial, we have a pretty 
 full account from the " Life " of Sharp. The leading original coun- 
 sel was Serjeant Davy. Mr. Hargrave was a young gentleman of 
 Lincoln's Inn, then just rising into notice, who volunteered his services 
 to Mr. Sharp. The case was opened by Serjeant Davy, Feb. 7, 1772, 
 before Lord Mansfield, and Justices Aston, Willis, and Ashhurst. 
 The opening proposition of Mr. Davy, and which he labored to main- 
 tain, was, " that no man at this day is or can be a slave in England." 
 He was followed on the same side by Serjeant Glynn. After he had 
 closed, the court ordered the case to stand over till the next term. 
 On the 9th of May, the hearing was resumed by Mr. Mansfield in 
 favor of Somerset ; when it was again adjourned till the 14th, when 
 Mr. Hargrave followed upon the same side ; and the case upon that 
 side was closed by Mr. Alleyne, who, like Mr. Hargrave, was a 
 young man. Through all these arguments, Somerset is spoken of as 
 from Virginia, and reference constantly is made to the laws of Virgi- 
 nia ; Virginia and America probably being, in an Englishman's mind, 
 synonymous terms. Nor is this surprising, when it is remembered 
 
20 VILLENAGE. 
 
 tluit Lord North, when addressing the House of Lords in favor of 
 taxing the Colonies, spoke of the " Island of Virginia," and no one 
 of that body corrected him. It should be remembered, to the credit 
 of the profession, that none of the counsel for the negro in this case 
 "would accept any compensation for their services. As given by the 
 biographer of Mr. Sharp, it was in the close of Mr. Alleyne's address 
 that we find that so often-quoted expression, ascribed by Lord Camp- 
 bell and others to Lord Mansfield, " The slave-holders will know, that, 
 when they introduce a slave into this country as a slave, this air is too 
 free for him to breathe in." 
 
 On the side of the master were, as above stated, Mr. "Wallace and 
 Mr. Dunning, who, in a former case, had taken the opposite side of 
 the question. Mr. Davy closed the cause. The judgment was ren- 
 dered on the 22d June. 
 
 The biographer of Sharp states, in connection with his efforts to 
 have slavery declared unlawful in England, this singular circumstance. 
 He had cited, in the trial of one of the cases, an extract from Black- 
 stone, in these words : " And this spirit of liberty is so deeply im- 
 planted in our Constitution, and rooted even in our very soil, that a 
 slave or a negro, the moment he lands in England, falls under the 
 protection of the laws ; and, with regard to all national rights, 
 becomes eo instanti a free man." 
 
 The counsel for the master denied that Blackstone laid down any 
 such proposition, and produced the volume and page cited, and read, 
 "A negro, the moment he lands in England, falls under the protection 
 of the laws, and so far becomes a freeman ; though his master's right 
 to his service may possibly still continue." This, of course, led to a 
 further investigation ; when it was discovered that Sharp had given 
 the language of the first edition of the " Commentaries ; " and that 
 the author, during these trials, had altered his text in his fifth edition, 
 from which the counsel had read. Whatever one may think of 
 an historian's changing his propositions in a subsequent edition of his 
 work to suit the political temper of the passing hour, it is certainly 
 to be deprecated that an author so widely known and universally 
 respected as a legal authority should have been chargeable with such 
 a folly or discrepancy upon so grave a subject. 
 
 As to the course taken by Lord Mansfield in this case, though 
 finally bold and decisive, he was obviously slow, if not reluctant, to 
 act. The opinions of Lord Hardwick and Talbot had been the re- 
 ceived doctrine of the courts ; and he had himself repeatedly given up 
 
VILLENAGE. 21 
 
 slaves to their masters, upon application for his aid in their behalf, 
 when they had run away from them. Sharp states this fact, among 
 others, in his letter to the Bishop of London, in 1795 : but the efforts 
 of those who denied the right to hold slaves in England had gained 
 such a hold upon the popular mind by the time that Somerset's case 
 was heard in 1772, that he felt compelled, by his own convictions, to 
 meet the fearful responsibility of declaring a judgment which destroyed 
 the rights of every slaveholder in England to hold his slave any 
 longer as property ; and, by so doing, was fortunate enough to identify 
 his fame with the great triumph of freedom which was achieved 
 through his agency. But, while posterity honors his memory, there 
 is no occasion to forget that he followed, but did not lead, the revolu- 
 tion which abolished slavery in England. 
 
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