1. Radical Abolitionists: Somerset and “The Unconstitutionality of Slavery”

The radical abolitionists, those nineteenth century Americans for whom slavery's blatant violation of the principles of natural justice and religious law meant that slavery itself was unconstitutional throughout the nation, found in Somerset a canonical and highly congenial legal precedent, which they regularly invoked with relish. Radical abolitionists included individuals such as William Goodell, a New York abolitionist who helped found the New York Anti-Slavery Society as well as the American Anti-Slavery Society, and would eventually run for President on the Liberty Party ticket; Gerrit Smith, a New York social reformer and activist who helped fund both the Liberty Party and Republican Party; and Lysander Spooner, an early libertarian political theorist whose most famous work, the Unconstitutionality of Slavery, was incorporated into the official party platform of the Liberty Party in 1848 and had a profound influence on many prominent abolitionists, including Frederick Douglass. For them, even though they acknowledged that Mansfield had said that slavery could be legal if, and only if, it enjoyed an infrastructure of positive law protection, Somerset stood in a general way for the pre-eminence of natural justice over positive law. And as a consequence, they drew two conclusions regarding the implications of the decision for slavery: first, that Somerset abolished slavery outright throughout England, and second, that it similarly abolished slavery in the colonies prior to the Revolution.

Regarding the first conclusion, for all these thinkers, Somerset stood unambiguously for the legal abolition of slavery in England. They acknowledged that the decision had not, practically speaking, put an end to slavery in England. Slaves still could be found throughout the country, and its slave trade continued apace. But from a legal standpoint, they argued that Mansfield had abolished slavery by definitively applying the profreedom common law principles of England to the institution of slavery. In the Unconstitutionality of Slavery, Spooner said that

And in his three volume, 1852 work Slavery and Anti-Slavery: A History of the Great Struggle in Both Hemispheres, Goodell cited the full text of Mansfield's decision, and then concluded triumphantly with this exclamation: “Thus was the guilty fiction of legal slavery in England exploded, after having been acted upon as though it were a truth for at least three-fourths of a century, and confirmed by the highest official authority for forty-three years.”Footnote ⁶ And to leave no doubt regarding what he thought of the extent of the significance of this decision, he added:

For both Spooner and Goodell, Mansfield applied the “principles of English liberty” or the “principles of the British Constitution and Common Law” to the Somerset case, and found that once a slave set foot in England, he was given his freedom.

Spooner and Goodell drew their conclusion about the effect of Mansfield's decision on slavery in England from several likely sources. First, the text of the decision itself, particularly its concluding passage in which Mansfield discussed the “odiousness” of the institution of slavery, was ripe for an interpretation that emphasized the significance of the moral law for the legal existence of slavery. According to Mansfield, freedom was the default rule and slavery the positive law exception. The default rule in England according to the “principles of English liberty” and the “principles of the British Constitution and Common Law” had been that all individuals were naturally free. And the positive law in England, although perhaps muddled prior to Somerset, for Spooner and Goodell, now was clear: in Mansfield's concluding words, “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 discharged.” The “legal fiction” of slavery had thereby come to an end in England.

Beyond the text of Mansfield's opinion, several credible English legal commentators provided various glosses on this passage, and the ideas contained within it, that made Spooner and Goodell's conclusions even more plausible. Granville Sharp, the English abolitionist activist who helped bring the case to the King's Bench, and Francis Hargrave, Somerset's counsel who during the case said that England had “a soil whose air is deemed too pure for slaves to breathe in it,” helped lead thinkers such as Spooner and Goodell to conclude that Somerset had definitively abolished slavery in England. And in addition to these perhaps partisan lawyerly statements, there were other more authoritative statements made by jurists in Great Britain that corroborated Sharp and Hargrave. Even prior to the Somerset decision, William Blackstone had written in the first edition of his Commentaries that, “this spirit of liberty is so deeply implanted 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 natural rights becomes eo instanti a free man.”Footnote ⁸ One year after Somerset, in the unreported case of Cay v. Crichton before the King's Bench, the presiding judge held that by retroactive effect, the Somerset decision had rendered all previous slaveholding in England to have been illegal.Footnote ⁹ Similarly in Scotland, the Court of Sessions held in 1778 that, as a consequence of Somerset, a master of a slave could not exercise any form of dominion over a slave in Scotland, even though the slave had been purchased in Jamaica where slavery was legal, because such laws were unjust.Footnote ¹⁰ In light of all this legal commentary, it is not surprising that Somerset himself appears to have drawn the conclusion that Mansfield's decision had liberated all slaves in Great Britain. According to one letter written to Charles Stewart, Somerset's former master, by an acquaintance whose slave had run away, Somerset himself had tried to personally persuade his relatives that by virtue of the decision, they were all now free. The runaway slave “had rec'd a letter from his Uncle Sommerset acquainting him that Lord Mansfield had given them their freedom.”Footnote ¹¹

In addition to these reports from England, Spooner and Goodell could also have drawn their conclusions about the effect of Somerset on slavery in England from its early reception in many American state courts. For well over 50 years before Spooner and Goodell would pen their important works, the view that Somerset had abolished slavery in England had been consistently expressed by many attorneys and judges in state courts, and had evidently permeated a substantial segment of American legal culture, clustered primarily, although not exclusively, in the North.

From as early as 1810 to as late as 1860, in states as far-flung as Massachusetts, Connecticut, Pennsylvania, Delaware, Virginia, Ohio, and New York, lawyers acting in their solemn capacity as counsel for clients, and judges of complicated state cases, expressed the view that Somerset had indeed freed the slaves in England. In an 1810 Massachusetts case, Greenwood v. Curtis, the judge expanded upon Somerset in a lengthy and scholarly footnote. He lamented the fact that “Mr. Loft did not make a more able and perspicuous report of this very interesting and important case.” But despite the difficulties and limitations of its reporting, the upshot of the case was plain: “At least, since the decision of the case of Somerset v. Stewart, it is determined that negro slavery can, under no form, nor with any qualification, exist in England.”Footnote ¹² Nearly 20 years later, an attorney arguing a case in Virginia called Hunter v. Fulcher made essentially the same argument about Somerset.Footnote ¹³ In an 1837 Connecticut case of Jackson v. Bulloch, the chief judge of the state court said, “In England, it is well settled, that slavery does not exist in that country; that a slave coming from another country—even their own colonies—was free, the moment he placed his feet upon English ground. Somserset's case, Lofft, 1.”Footnote ¹⁴ In 1849, a Pennsylvania state judged waxed rhapsodic about the example set by Lord Mansfield in Somerset, pointing out how the principle that a slave's presence on English soil immediately liberated that slave had “sprung fresh and beautiful and perfect from the mind of Lord Mansfield.”Footnote ¹⁵ In 1856, an Ohio judge writing a concurrence in a case called Anderson v. Poindexter, discussed Somerset at great length, quoting its entire report, and then observed that as a consequence of the decision, “slavery is of such a nature, and so odious, that it can not exist at all in England, in the absence of any positive law to sanction or sustain it.”Footnote ¹⁶ He then pointed out that Joseph Story had reached the very same conclusion about the liberating effects of Somerset for England.Footnote ¹⁷ And as late as 1860, on the eve of the Civil War, the New York State Supreme Court stated in Lemmon v. New York, that in Somerset, “a case of great notoriety, which could not fail to be well known to the cultivated and intelligent men who were the principal actors in framing the Federal Constitution,” Mansfield had abolished slavery throughout England and ruled that any slave who set foot on its soil, for however long, was, thereby, freed.Footnote ¹⁸ Therefore, for a considerable number of lawyers and state court judges throughout the nineteenth century, Somerset had come to stand for the complete abolition of slavery in England.

Somerset's impact on America was another, even more complicated question. The second principle of Somerset for the radical abolitionists was that, as a legal consequence of the decision, slavery in the colonies prior to the American Revolution had also been abolished. The radical abolitionists thereby attempted to shore up their most vulnerable rhetorical flank with respect to Somerset. While they were on more solid interpretive ground when they argued that, according to Mansfield's decision, the principles of natural justice and common law rejected the “odious” practice of slavery, their real challenge was finding a way to show how the “positive law” of the American colonies did not protect slavery. For if the positive law of the American colonies did in fact protect slavery, all the natural law arguments in their rhetorical arsenal would not save them from the fact that Mansfield plainly indicated that slavery could still legitimately exist, despite its “odious” character, if it was protected by a superstructure of positive law.

The radical abolitionists made two distinct legal arguments to show that Somerset meant the demise of slavery in the colonies. First, in their (likely questionable) view, prior to the Revolution, the American colonies were constitutionally required to keep their laws in conformity with the laws of the home country. Therefore, as slavery and the slave trade in England post-Somerset had been deemed illegal, slavery and the slave trade in England's colonies must also be illegal. Smith made this point squarely: “Mansfield's decision in the Somerset case established the fact, that there was no law for slavery in England in 1772:—and if none in England, then none in America, for, by the terms of their charters, the Colonies could have no laws repugnant to the laws of England.”Footnote ¹⁹ Spooner's reasoning upon this had been even more expansive than Smith's:

And Goodell cited Granville Sharp's efforts to encourage British officials to faithfully apply Somerset to the American colonies as evidence of the true legal implications of Mansfield's decision.

Thus, as a matter of law within the “imperial Constitution” of Great Britain and her colonies, under which the colonies were legally required to make their laws comply with the body of principles, laws, customs, and case law that made up the British Constitution, the radical abolitionists argued that Mansfield's revolutionary decision in Somerset served as binding precedent for the American colonies, and thereby invalidated all colonial laws that protected slavery and the slave trade to the contrary.Footnote ²²

This view of the binding significance of Somerset for the colonies was reflected in some state court judgments as well. In the 1849 Pennsylvania case of Kauffman v. Oliver, immediately after praising Mansfield for recognizing the “fresh,” “beautiful,” and “perfect” common law principle that slaves were freed upon setting foot on English soil, Judge Coulter went on to observe that Mansfield's decision also enjoyed binding authority for Pennsylvania. “This case [Somerset] was decided before the Revolution, and became the common law of this state… But by the principles of that law, the fugitives were free the moment when they touched the soil of Pennsylvania.”Footnote ²³ Coulter's judgment did not go as far as Spooner's thesis that all the colonies were necessarily free under Somerset, and did acknowledge federal constitutional protections of slavery, but it went about as far as could be expected from a judge ruling on a case that involved only Pennsylvania law. By virtue of the fact that Somerset had been decided prior to the Revolution, Coulter reasoned, it had precedential value at least for the colony, and then eventually for the state, of Pennsylvania. Because English soil had been ruled in 1772 to be too pure to permit slavery, Pennsylvania soil in 1849 was similarly unfit for slaves.

The radical abolitionists' second argument was that, regardless of the precedential authority of Somerset for the colonies, there was no domestic “positive law” whatsoever in the colonies that explicitly provided for the protection of slavery. Surveying the legal landscape of the colonies that had permitted slavery prior to the Revolution, Spooner concluded that, at best, all that supported the institution of slavery was not “positive law,” but mere inchoate custom and habitual practice. But according to Somerset itself, only “positive law,” or as Spooner glossed this (and arguably narrowed it), “positive legislation,” not mere custom, could permit slavery. “Slavery, if it can be legalized at all, can be legalized only by positive legislation. Natural law gives it no aid. Custom imparts to it no legal sanction. This was the doctrine of the King's Bench in Somerset's case, as it is the doctrine of common sense.”Footnote ²⁴

The radical abolitionists further maintained that what “positive legislation” there was in the colonies was insufficiently precise to identify who could be a slave. This legislative imprecision was damning, because the background default rule of liberty, ratified in Somerset, required that the positive law “carve out” for slavery be explicit and clear. “Slavery, then, being the creature of positive legislation alone, can be created only by legislation that shall so particularly describe the persons to be made slaves, that they may be distinguished from all others. If there be any doubt left by the letter of the law, as to the persons to be made slaves, the efficacy of all other slave legislation is defeated simply by that uncertainty.”Footnote ²⁵Somerset, therefore, stood for the principle that the burden of proof rested squarely upon those colonies or states that claimed that certain, specific individuals could be held as slaves. But in Spooner's judgment, none of the Southern colonies or states could meet that burden:

The radical abolitionists such as Spooner concluded that the principles of Somerset required that “positive law” protections of slavery be legislative rather than merely customary, and explicit and clear rather than vague. But as the colonial “positive law” protections of slavery were mostly customary and, when legislative, not explicit or clear, they failed to rise to the level of legitimate “positive law,” and were, therefore, insufficient to rebut the “presumption of liberty” established by Mansfield in Somerset.

A close approximation of this view can be seen in a 1796 Delaware case called Phillis v. Lewis. In response to a claim for freedom from an Asian woman held in slavery, whose grandmother had herself been a slave in Asia, the chief judge of the Court of Common Pleas of Delaware granted her freedom on the ground that what positive law protections for slavery existed in Delaware expressly limited slavery to Africans. And, he added, “It cannot be expected that at this day we should extend the principle of slavery beyond the limits of positive law or usage clearly and certainly ascertained. In this case there is no such law or usage.”Footnote ²⁷ Although conceding (contra Spooner) that Delaware's existing positive law protections were explicit for Africans, the broader point Chief Judge Basset made here was the same one made by Spooner and the other radical abolitionists: only positive law that was “clearly and certainly ascertained” could justify the enslavement of another.

For the radical abolitionists, and for a host of Northern state court judges and attorneys working throughout the nineteenth century, Somerset represented a revolutionary moment in slavery jurisprudence. It not only expressed moral disapproval of slavery, it also made that disapproval the ultimate basis for its legal abolition in England, and abolished it in the colonies as well, through both its status as binding legal precedent for the colonies and as an authoritative guide to determining when a “positive law” protection of slavery could ever really exist.

2. Garrisonians: Somerset and the “Covenant with Death”

The Garrisonians were a collection of nineteenth century thinkers, writers, and radical abolitionist activists who followed William Lloyd Garrison in viewing the United States Constitution to be a thoroughly compromised, proslavery document that was on the order of a “covenant with death” and an “agreement with hell.” Although they shared with the radical abolitionists the view that slavery was immoral, they disagreed sharply with them over the constitutional status of slavery. Radical abolitionists such as Spooner, Smith, and Goodell argued that slavery was unconstitutional, not only in the free states and the territories, but in the Southern states as well. The Garrisonians, by contrast, argued that slavery was fully part of America's constitutional order and given considerable special protections throughout the nation not accorded any other form of “property.” One particularly hot flashpoint in their dispute over the constitutionality of slavery was over how to best interpret Lord Mansfield's Somerset decision. It is not an exaggeration to say that at nearly every major interpretative fork in the road, where the radical abolitionists went one way in their take on the Somerset decision, the Garrisonians went in the opposite direction.

Where Lysander Spooner, for example, viewed the Somerset decision as leading to the wholesale abolition of slavery in England, Wendell Phillips, an articulate Garrisonian and Harvard Law School educated attorney from Massachusetts, argued that the decision had been considerably narrower than that. In his 1847 Review of Spooner's Essay on the Unconstitutionality of Slavery, Phillips argued that Mansfield's decision amounted to no more than that “a person held as a slave abroad, if once landed in England, could not be taken thence against his will.”Footnote ²⁸ Whereas this might suggest the more sweeping consequence of full-scale abolition of slavery in England, as suggested by Spooner, it need not. It could rather mean, as Phillips suggested, that slaves could continue to be held in England in a qualified manner when brought there from another country, but could not be forced against their will to return to their former country.

Phillips' reading of the decision accords well with Mansfield's own description of his decision. Soon after Somerset, several English and Scottish judges took the case to stand for the principle that a slave was freed upon landing on free soil. Mansfield was apparently vexed by this trend, and attempted to narrow the meaning of his decision. In Rex v. Inhabitants of Thomas Ditton, he pointed out that “the determination got no further than that the master cannot by force compel him to go out of the kingdom” and later observed that “The case of Somerset is the only one on this subject. Where slaves have been brought here, and have commenced actions for their wages, I have always non-suited the plaintiff.”Footnote ²⁹ Although some of the sweeping and forceful language with which he expressed himself in the Somerset decision may have led to the sorts of interpretations made by the various judges in England and Scotland and the radical abolitionists in America, in Mansfield's mind, as in Phillips', the Somerset decision did not abolish slavery in England.

This narrower construction of the effects of Somerset on slavery in England was embraced by a number of state court judges as well, particularly, and perhaps not too surprisingly, in the South. In the 1860 South Carolina case of Willis v. Jolliffee, for example, Judge Wardlaw observed that although much had been made of the “wise saw” that “as soon as a man sets foot on English ground, he is free,” Mansfield himself “used no such phrase.” By contrast, Mansfield's ruling had been considerably narrower. “Now, the mandatory judgment in this case—the ideo consideratum est—is simply that so high an act of dominion as the keeping in irons and sending abroad a slave for sale, to a country different from the master's domicil, could not be supported by the law of England.”Footnote ³⁰ And responding directly to those Northern judges who had drawn a more sweeping holding from Mansfield's opinion, Wardlaw wrote, “It cannot be ingenuously questioned that Lord Mansfield intended to discredit negro slavery in England; but some of the inferences from his opinion, drawn by Judge Story, Chief Justice Shaw, and others, may be fairly disputed.”Footnote ³¹ This was a point repeatedly made in Southern state court decisions throughout the 1850s. But this view was not exclusively reserved to the South. A similar point was made in the 1856 Ohio case of Anderson v. Poindexter. Responding to the argument made by Judge Swan that Lord Mansfield's decision freed the slaves in England, Chief Judge Bartley observed in a concurrence, “That some errors have prevailed in regard to the true legal effect of the opinion of Lord Mansfield in this case, is most manifest. He used no such expression as that a slave became free the moment he landed in England.”Footnote ³²

Whereas the Garrisonians, along with a chorus of Southern state court judges, thus more narrowly, and more accurately, interpreted the significance of the ruling of Somerset for England, they similarly interpreted the implications of the decision for the United States in a narrow way. Whereas the radical abolitionists suggested that it led to (or at least should have led to) the abolition of slavery in the colonies, Phillips, et al. argued that, if anything, it only provided further support for the institution where it existed. Implicit in Mansfield's decision was the recognition that Virginia legitimately recognized Somerset as a slave. The specific “conflict of laws” question the Kings' Bench had to answer was whether to apply the proslavery laws of Virginia or the (qualifiedly) profreedom laws of England. But at no point did Mansfield suggest that the proslavery laws of Virginia were somehow illegitimate, or that the question of their legitimacy was even properly before the court. In Phillips' words:

To say, as the radical abolitionists did, that Somerset somehow voided the proslavery laws of the colonies, was to misunderstand the central dilemma of the case itself.

The view that the positive law in the colonies regrettably enshrined and protected slavery was shared by even several Northern state court judges. In the 1837, case in Connecticut of Jackson v. Bulloch, Chief Judge Williams of the New Jersey State Supreme Court said:

Williams had argued in this very case that Somerset had abolished slavery in England. But in light of what he considered to be overwhelming evidence of positive law protection of slavery in the colonies, he could not agree with the radical abolitionists that Somerset somehow liberated all the slaves in America.

However, the Garrisonians did acknowledge that Somerset did have some impact upon America. Phillips, for example, would agree with Spooner that under the terms of the imperial constitution, the laws of the colonies needed to be brought into conformity with the laws of England. The decision in Somerset, therefore, had precedential authority for the colonies. However, given Phillips' narrow reading of Somerset, the consequences of incorporating it as binding precedent for the colonies was relatively minor. What was ultimately at stake was how free colonies would handle cases in which masters brought their slaves into their jurisdiction and then decided to forcefully remove them. Could they use the laws of the free colony itself or would they be forced to use the laws of the slave colony? Mansfield's decision in Somerset was that a free country such as England should appeal to its own laws, and not the laws of a slave colony such as Virginia, when making this determination. Consequently, the precedent established by Somerset for the colonies was that free colonies should decide on the basis of their own laws, also. As Phillips stated, “The case of Sommersett was adopted in the Colonies to the exact extent to which it went.”Footnote ³⁵ In other words, “Those Colonies which abolished Slavery, (Massachusetts, Pennsylvania, Rhode Island, Connecticut, New Hampshire, &c.) either refused, under its authority, to deliver up slaves brought or flying into their limits, or specially provided on what conditions masters should be allowed to bring their slaves with them.”Footnote ³⁶ Far from abolishing slavery in the colonies, then, the Somerset decision simply resolved a choice of laws dilemma that could arise between colonies that protected slavery and those that did not.

Finally, Phillips took aim at Spooner's argument that, on the terms of Somerset, there was no “positive law” protection for slavery even in those colonies in which slavery was tolerated. Spooner's argument, it will be recalled, was that only positively enacted and precise legislation, not custom or imprecise statutes, could qualify as the kind of “positive law” that Mansfield said could, despite its moral odiousness, justify slavery.

Regarding Spooner's argument that only positively enacted legislation and not custom, could qualify as “positive law,” Phillips cleverly pointed out that some of the language Mansfield used in his decision implied that custom could, in fact, qualify as positive law. Mansfield had said that “only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory.” But the “occasion” and “dates” of positively enacted statutes are not typically forgotten, given the fact that they are embossed in the statute itself. Therefore, Mansfield likely had in mind something like custom, whose precise origins can over time become murky. In Phillips' words:

As such, Phillips argued that even if there were an absence of enacted laws on slavery in the colonies, as Spooner contended, according to the terms Mansfield chose to express himself in Somerset, this would not matter, as “positive law” can form through customary practice just as it can through legislative enactment.

This view that custom could bestow legal sanction on slavery was echoed in various state court cases as well. In 1845, a case came before the Supreme Court of Missouri that required the court to determine whether a jury instruction that “slavery never did exist in Canada” was error. Writing for the court, Judge Scott said that the instruction had indeed been incorrect, because:

Customary practice and mere commerce, not positive legislation, were all that were required to legitimately introduce slavery into a territory. Therefore, in the view of the Missouri Supreme Court, as well as the Garrisonians, the absence of any positive legislation in Canada protecting slavery was, by itself, insufficient to prove the absence of legitimate slavery.

Regarding the radical abolitionists' other argument that legislation would need to precisely indicate who was and was not a slave, and that Southern slave statutes failed to rise to this standard, Phillips pointed out that the requirement of legislative precision was a “Spoonerian” invention not to be found in the Somerset opinion. “We confess we do not see anything of this in the remarks of Lord Mansfield. He says merely that Slavery must be created by positive law, but not a word as to the exactness with which the persons must be pointed out and distinguished. All this is Mr. Spooner's addition.”Footnote ³⁹ For a constitutional thinker who valued precision in statutes, Spooner, in Phillips's eyes, was curiously inattentive here to the precise words that Mansfield himself chose to use (at least according to the official report available at the time to both Spooner and Phillips), and not use, in his opinion.

On this final point, however, Phillips may have been mistaken. To begin with, whereas the official published report of the opinion by Capel Lofft may have been susceptible to Phillip's reading, other reports, which at least one contemporary Mansfield scholar has judged to be more reliable than Lofft's report, added language about the nature of the “positive law” that supported Spooner's thesis.Footnote ⁴⁰ In both a report that was published in Scot's Magazine and another that was discovered by James Oldham in the Lincoln's Inn Library among the manuscripts of Sergeant Hill, Mansfield is quoted as saying that, in the case of slavery, positive law protections must be construed “strictly.”Footnote ⁴¹ In the version published in the Scot's Magazine, the report read, “[I]n a case so odious as the condition of slaves, [positive law] must be taken strictly.”Footnote ⁴² And in the report found in the Hill collection, the language was nearly identical: “Slavery is so odious that it must be construed strictly.”Footnote ⁴³ Either way, according to these reports, contra Phillips, Mansfield did indeed have a word to say about the exactness with which laws establishing slavery must be construed.

But regardless of these additional reports, the principle of statutory interpretation at stake—whether slave statutes should be construed strictly—did not necessarily turn on whether Mansfield expressly provided this, but, rather, on whether it could be reasonably implied from what he did say. For Spooner, the chief fact about Somerset was that it laid down a “presumption of liberty” that established that a practice as odious as slavery could only exist by positive law. Slavery could exist, but only under certain special and “peculiar” conditions. With the presumption of liberty established, all that remained was to find a rule by which to know whether a “positive law” protection really existed. And given that presumption, the rule should err on the side of being more, rather than less, exacting. Spooner may have been influenced by this line of reasoning developed in Chief Justice Marshall's 1805 opinion in United States v. Fisher, in which Marshall wrote that “Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.”Footnote ⁴⁴ Mansfield may not have expressed this “clear statement” rule of interpretation for slave statutes, but it could reasonably follow from what he did say about slavery.

This interpretive point aside, the Garrisonians, represented ably by Wendell Phillips, along with a host of state court judges located particularly, though not exclusively, in the South, responded point-for-point to the radical abolitionists' interpretation of Somerset. For them, Somerset stood for a relatively narrow decision that had relatively minor precedential significance for the colonies. It did not abolish slavery in England and, if anything, acknowledged its legitimacy as an institution in the colonies. Moreover, its perhaps most important contribution was, in the eyes of the Garrisonians, a negative and problematic one: all that was required to shield slavery from the opprobrium of moral principles was that it somehow be encased within a superstructure of positive law, or even mere custom. As such, Mansfield's decision in Somerset, like the United States Constitution itself, was part of the problem, not the solution.

3. Moderate Abolitionists: Somerset and “Freedom National, Slavery Local”

Although the radical abolitionists and the Garrisonians represented a distinctive and interesting set of opposing pairs within the abolitionist fold, by far the more typical and “mainstream” position among abolitionists was occupied by the moderate abolitionists. From a moral standpoint, the moderate abolitionists were characterized by an equally fierce moral denunciation of the institution of slavery. But from a constitutional standpoint, they occupied a middle ground between the radicals and the Garrisonians. On the one hand, like the Garrisonians and unlike the radicals, they acknowledged that slavery was fully constitutionally protected in the states that had the peculiar institution. But on the other hand, like the radicals and unlike the Garrisonians, they believed that the Constitution was essentially (although with some key explicitly agreed upon black letter exceptions such as the fugitive slave clause) profreedom, protecting slavery where it currently existed, but prohibiting its spread into the free states and the territories. In Eric Foner's phraseology, the moderates were thus committed to a position of “freedom national, slavery local,” in which the favored default constitutional position was freedom, but the local exceptional carve-out was slavery.Footnote ⁴⁵ This position attracted a wide swath of nineteenth century Americans, including, most famously, Henry Clay and Abraham Lincoln.

Moderate abolitionists, like their radical and Garrisonian counterparts, found in Lord Mansfield's Somerset decision a font of constitutional and philosophical insight. In particular, lawyers, politicians, and judges such as Salmon Chase, Joshua Giddings, and Joseph Story found in Somerset a source for three of their most central claims. First, they found their belief in freedom as the default constitutional position confirmed by Mansfield's stirring passage on the natural odiousness of slavery. Second, they found in that same passage constitutional protection for slavery in those states where it was protected by positive law. And third, they found in Somerset a source of three practical recommendations for navigating the tension between the national and the local, between the law as it ought to be and the law as it was, via the principles of noninterference with the local laws of slave states, nonextension of slavery into the territories, and nonrecognition by judges in free states of slave laws, except in cases in which the positive law clearly required it.

The moderate abolitionists frequently cited Somerset as an authority for their crusade on behalf of the “freedom national” principle. In his 1846 legal brief to the Supreme Court in connection with the case of Jones v. Van Zandt, published a year later as a pamphlet under the title of “Reclamation of Fugitives from Service,” Salmon Chase, the future chief justice of the United States, explicitly cited Mansfield's “celebrated judgment” in Somerset as legal authority for the following argument about slavery: “What is a slave? I know no definition, shorter or more complete, than this: A slave is a person held, as property, by legalized force, against natural right.”Footnote ⁴⁶ And revealing just how much Chase had breathed in Mansfield's opinion, he added that “the law, which enables one man to hold his fellow man as a slave, making the private force of the individual efficient for that purpose by aid of the public force of the community, must necessarily, be local and municipal in its character.”Footnote ⁴⁷ For Chase, the core meaning of Somerset was, therefore, that freedom was the default national principle, whereas slavery, as a violation of natural right, could only be a local exception. “The very moment a slave passes beyond the jurisdiction of the state, in which he is held as such, he ceases to be a slave; not because any law or regulation of the state which he enters confers freedom upon him, but because he continues to be a man and leaves behind him the law of force, which made him a slave.”Footnote ⁴⁸ Only in the presence of such a “law of force” could slavery exist. But beyond the scope of such laws, in the “pure air” of America and her Constitution, freedom was the natural default principle. “The government of the United States, has nothing whatever to do, directly, with slavery…It knows no slaves.”Footnote ⁴⁹

More than 10 years after Chase made this argument to the Supreme Court in his written brief, the Republican Party and its leaders would make extensive use of this “freedom national” interpretation of Somerset in advancing the abolitionist cause. Abraham Lincoln, who himself never explicitly cited Somerset in any of his speeches or writings, would nonetheless refer to this principle in his 1854 speech on the Kansas-Nebraska Act. Lincoln called this Somerset-based principle the “negative principle that no law is free law” and said that, as far as “good book law” went, if a slave were to go into the territory of Nebraska, in which no laws on the books currently protected slavery, this would technically (although perhaps not practically) “operate” his freedom.Footnote ⁵⁰ And in 1860, the Republican Party would incorporate this “freedom national” principle into its official party platform when it declared that “the normal condition of all the territory of the United States is that of freedom.”Footnote ⁵¹

For the moderate abolitionists, Somerset thus stood for the principle that the territories, high seas, states, and all other areas ungoverned by expressly proslavery laws were naturally free. But unlike their radical counterparts, they were quick to concede that Somerset also stood just as much for the principle that where local proslavery laws prevailed, slavery had a legitimate legal existence. This is nowhere better illustrated than in Joseph Story's 1834 Commentaries on the Conflict of Laws. The State of Massachusetts, Story said, had abolished slavery long ago. The precise means by which it had done so were not entirely clear. Whether by “the adoption of an opinion in Somerset's Case, as a declaration and modification of the common law, or by the Declaration of Independence, or by the constitution of 1780, it is not now very easy to determine”Footnote ⁵² how slavery had come to an end in Massachusetts. But however slavery had officially come to an end in Massachusetts, it had not come to an end in other states. Therefore, just as Massachusetts followed Somerset in abolishing slavery, it should also follow it in recognizing the legal existence of slavery in other states.

Story here reminds his readers, perhaps long familiar with the liberating implications of Somerset, that the decision also “clearly admits that [slavery] may exist by force of positive law.” And by “positive law,” Story interprets Mansfield's use of this expression in Somerset to include not only express legislative enactment but also, contrary to Spooner's contention, custom and practice.

For the moderates, Somerset stood for the proposition that freedom was, therefore, national and natural, whereas slavery was local and conventional. The trick for the moderates was to find ways in which they could remain equally committed to both halves of this proposition. Push too hard on the freedom national principle, and one's commitment to slavery where it legally existed might be undermined. Push too hard in defense of slavery where it was legally protected, and the freedom national principle is perhaps undermined. In the course of thinking through this dilemma, the moderates developed three practical recommendations, each of which had its touchstone in Somerset and their interpretation of its principles.

First, they insisted on the principle of noninterference with the autonomous internal orderings of free and slave states alike. What states did within the confines of their own jurisdiction was their own business. Just as Mansfield did not attempt to “void” the proslavery laws of Virginia, the states should not attempt to meddle in the internal affairs of other states. In an 1836 case called Commonwealth v. Aves, Chief Justice Shaw of the Supreme Judicial Court of Massachusetts defended this principle of noninterference on the basis of the precedential weight of Somerset and the Supreme Court's decision in the case of The Antelope,Footnote ⁵⁴ which Shaw judged to be a faithful application of the principles of Somerset in the American context. “We may assume that the law of this state [Massachusetts] is analogous to the law of England in this respect; that, while slavery is considered as unlawful and inadmissible in both, and this because contrary to natural right and to laws designed for the security of personal liberty, yet in both the existence of slavery in other countries is recognized, and the claims of foreigners growing out of that condition are to a certain extent respected.” Because the claims of foreigners in Somerset were “to a certain extent respected,” the individual states were to accord comparable respect to the internal decisions of other states.Footnote ⁵⁵

Therefore, for Shaw, a direct implication of the Somerset principle that slavery can exist by local positive law was that it should not be interfered with by other states that happened to have moral objections to slavery.

The moderates' second Somerset-inspired practical recommendation was that slavery should be legislatively prohibited from spreading beyond where it legally existed, into the territories. Although Lord Mansfield did not say anything about the extension of slavery into formerly free territories or countries, moderate abolitionists such as Lincoln saw positive legislative prohibition on slavery extension as necessitated by what he judged to be the practical inefficacy of the Somerset principle. Somerset may have been “good book law,” but alone, it was not enough to prevent slaveholders from bringing their slaves into free territories. Whereas Somerset may have come to stand for the principle that “no law is free law,” and that therefore slaves who entered territories without positive law protections for slavery would, therefore, be technically free, as a practical matter, this common law principle was unlikely to save any slaves who were brought into the territories. In Lincoln's formulation:

As a merely “negative principle,” Somerset was insufficient to prevent slaveholders from pouring into the territories with their slaves. It was technically “good book law,” but by itself it was not enough. What was required, was a supplementary “positive congressional enactment” that put Somerset common law principle into black letter law on the order of Congress' Northwest Ordinance of 1787 or the Missouri Compromise of 1824. That such laws were passed in light of the principles of Somerset, was for some indisputable. As Judge Swan of the Ohio Supreme Court remarked about the nonextension principles in both the Northwest Ordinance and the Ohio state constitution, “the ordinance of 1787, and the [Ohio] constitutions of 1802 and 1851, were made with a view to what was understood to be decided in the Sommersett case.”Footnote ⁵⁸

The third Somerset-inspired recommendation made by the moderates was that free states should recognize the force of slave law beyond the jurisdictional limits of slave states only when there was an express, positive legal stipulation requiring it. Without such a law, Somerset implied that slaves removed from the jurisdiction of slave states were automatically freed. Ohio Congressman Joshua Giddings made precisely this argument in his 1842 Creole Case resolutions. The Creole case involved a slave rebellion aboard a ship called the Creole, which had been transporting slaves from Virginia to New Orleans. When the owners of the slaves asked the federal government to compensate them for their losses, Giddings argued that the owners were not entitled to any compensation because, once slaves were transported beyond the territorial confines of slave states, the local laws of slavery no longer applied. In the words of his proposed resolution:

Therefore, when slaves were taken upon the high seas of the United States, where no express law required federal or state officials to uphold proslavery laws, the default rule of freedom prevailed.

But where an express law did require such recognition, as in the case of fugitive slaves, local proslavery laws were entitled to, in the words of Story, a “certain respect” beyond the confines of that locality. This was controversial, and not all moderate abolitionists accepted this.Footnote ⁶⁰ But the position advocated by Story was a common one for moderate abolitionists. Story saw the Fugitive Slave Clause of Article IV of the United States Constitution, which provided that “No Person held to Service or Labor in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labor,” as an explicitly agreed upon federal exception to the Somerset principle. Writing as a Supreme Court justice in his decision in Prigg v. Pennsylvania, Story said that

Therefore, in one respect, the fugitive slave clause was an exception to Somerset. Without the clause, Somerset's default rule of freedom would have applied to fugitive slaves and operated their freedom. On this score, Story followed James Madison, who said in the Virginia Ratifying Convention that the Fugitive Slave Clause was necessary because, “At present, if any slave elopes to any of those states where slaves are free, he becomes emancipated by their laws.”Footnote ⁶² But in another respect, the fugitive slave clause was in full conformity with Somerset. Somerset conceded that positive law shielded slavery where its legal protections existed. The fugitive slave clause was itself just such a positive law protection, albeit a partial one, which applied nationwide. Story seized on this principle of Somerset when he explained the legitimacy of the fugitive slave clause. “It has been contended by some over-zealous philanthropists that such an article in the constitution could be of no binding force or validity because it was a stipulation contrary to natural right. But it is difficult to perceive the force of this objection. It has already been shown that slavery is not contrary to the laws of nations. It would then be the proper subject of treaties among sovereign and independent powers.”Footnote ⁶³ The fugitive slave clause was, therefore, akin to a treaty provision mutually agreed upon by the free and slave states. Although arguably a violation of natural right, the fugitive slave clause was not, therefore, legally invalid because, as Somerset itself held, positive law protections (like treaty provisions) could trump natural law proscriptions.Footnote ⁶⁴

The moderate abolitionists saw in Somerset a legally authoritative guide for navigating the many complicated questions presented by the peculiar institution of slavery. It provided a philosophical guide to understanding slavery in America that distinguished the moderates from all the other dominant schools of thought. Against Garrisonian skeptics, it provided them with an authoritative legal precedent for their view that freedom was the natural—and national—default rule. Against the radical abolitionists, however, it provided them with the authority for their view that slavery was legally protected where it existed in the South. Beyond these general statements, it provided a touchstone for a practical, statesmanlike approach to slavery that emphasized noninterference with slavery where it existed, congressional prohibition of extension of slavery into the territories, and national legal respect for slavery beyond its local jurisdictional confines only when express “positive law” arrangements had been made.

4. Pro-Slavery Democrats: Somerset and the “New Cornerstone”

Somerset was naturally an oft-used and well-cited case for the abolitionists, but Southern state courts and proslavery apologists turned to the Somerset decision with perhaps even more care and attention than their abolitionist counterparts. Unlike the abolitionists, however, the Southerners appeared to have considerably rethought and revised their opinion of the case as time passed. At first, Southerners seemed to mostly accept the case as authoritatively establishing the terms and conditions for legitimate slave ownership. Slavery may have been “odious” in Mansfield's opinion, but if it were supported by “positive law,” it had his approval. However, as abolitionists intensified their rhetoric in the 1840s, and as the Republican Party emerged as a serious contender for national offices in the 1850s, all of them citing the Somerset opinion as a font of abolitionist constitutional thought, and as, at the same time, an explicitly racialist proslavery ideology began to develop in the South, Southerners eventually responded with a full-scale criticism of both Mansfield and his 1772 opinion.

The state courts of Southern, slaveholding states such as Georgia, Kentucky, Louisiana, Maryland, and Mississippi all displayed a marked willingness to embrace Mansfield's opinion, often extensively discussing the case, and citing in full or at least paraphrasing its most memorable phrase, “It is so odious, that nothing can be suffered to support it but positive law.” In 1818, the Mississippi State Supreme court declared that “Slavery is condemned by reason and the laws of nature. It exists and can only exist, through municipal regulations, and in matters of doubt, is it not an unquestioned rule, that courts must lean “in favorem vitae et libertatis.”Footnote ⁶⁵

Typically, these courts would not only invoke this rule but also quickly add that through colonial law, state law, and custom, slavery had the requisite “positive law” protection to qualify as legally valid under Somerset. As early as 1799, the Maryland Supreme Court cited colonial law as sufficient under Somerset, to justify slavery in Maryland. After quoting Mansfield's maxim about positive law, the court observed “By a positive law of this state in 1715, then the province of Maryland, the relation of master and slave is recognized as then existing, and all negro and other slaves, then imported, or thereafter to be imported into this province, and all children then born, or thereafter to be born, of such negroes or slaves, are declared to be slaves during their natural lives.”Footnote ⁶⁶ In 1820, the Kentucky Supreme Court, in an opinion that stressed the definitive importance of positive law (“the law as it is”) and the irrelevance of natural law (the law “as it ought to be”), argued that the state laws of Kentucky were all that was required to justify its presence.

And in 1824, the Louisiana State Supreme Court similarly emphasized the importance of statutes, but also suggested that custom and long practice, eventually regulated by subsequent statutes, could also make slavery legitimate.

These and other Southern state courts thus embraced the Somerset decision as vindicating the claims of slaveholders. In every case, they would concede that the “general principles of liberty” frowned upon slavery. But they would then quickly add that under Somerset, all that was required to make slavery legal was “positive law”, whether colonial law, state law, or custom.

Some critics of the abolitionist movement would retain this approach to Somerset into the 1850s. Illinois Senator Stephen Douglas, in announcing his “Freeport Doctrine” during his second debate with Abraham Lincoln in 1858, would cling to the view earlier announced by the Southern state courts. In response to a question put by Lincoln regarding whether the territorial governments could vote to exclude slaves from their midst, Douglas said that they could, because slavery could only exist where it was protected by positive law. “Slavery cannot exist a day or an hour anywhere, unless it is supported by local police regulations. Those police regulations can only be established by the local legislature; and if the people are opposed to slavery, they will elect representatives to that body who will by unfriendly legislation effectually prevent the introduction of it into their midst.”Footnote ⁶⁹

But the view on Somerset that would eventually come to dominate the South in the 1850s was that it had been wrongly decided. The proslavery criticism of Somerset in the 1850s revolved around two basic claims, one directed personally at Lord Mansfield, and the other directed at the merits of the decision itself. The first claim was that Mansfield succumbed to popular pressures and departed from settled legal precedent regarding the presence of slavery in England. The second was that Mansfield had been mistaken to claim that slavery was odious and could only be a creature of positive law.

The first criticism of Mansfield's person ran the gamut, questioning his intelligence, courage, and judicial temperament. A representative indictment came from Senator Judah Benjamin of Louisiana. In response to criticisms of the Dred Scott decision from Northern Republicans in Congress, in 1858, Benjamin delivered a 3 hour stem-winder on the floor of the Senate, in which he defended Dred Scott and criticized Mansfield's role in the Somerset decision. Mansfield had departed from the settled legal precedent in England, announced in the 1729 joint opinion of Sir Phillip York and Lord Talbot, which held that slaves were not freed upon coming to England, and that slave masters retained their right to forcefully remove them. Mansfield, however, in a cowardly fit of judicial activism, had undone all of this. “Things thus stood in England until the year 1771, when the spirit of fanaticism, to which I have adverted, acquiring strength, finally operated upon Lord Mansfield, who, by a judgment rendered in the case known as the celebrated Somersett case, subverted the common law of England by judicial legislation… I say this was judicial legislation. I say it subverted the entire previous jurisprudence of Great Britain.”Footnote ⁷⁰ Benjamin contrasted Mansfield with Lord Stowell who, in the 1827 Slave Grace case before the King's Bench, found that a slave taken to England and then returned to a slave state resumed her status as a slave. Stowell would question the claim, later (although inaccurately) attributed to Mansfied, that English air was “too pure an air to breathe” for a slave. Benjamin declared:

Mansfield, in the opinion of Benjamin and other Southern apologists for slavery, such as John Codman Hurd and Thomas Cobb, thus buckled under the emotional pressures created by the case and, in contravention of settled English precedent (later restored by wiser jurists), and in violation of the limited role of a judge, decreed from the bench several wildly inappropriate statements of abolitionist sentiment.

Not only were Mansfield's statements inappropriate for a judge to make, they were also incorrect. Southern apologists for slavery took direct aim at Mansfield's fateful claim that slavery was “so odious, that nothing can be suffered to support it, but positive law.” In particular, they challenged the claim, implicit in Mansfield's opinion and championed by the Republican Party, that freedom was the natural default rule of common law whereas slavery was its conventional and local exception. The Supreme Court of Georgia in 1851 advanced the argument that legal title to property in slaves was indistinguishable from all other forms of property, and did not rely on the introduction of positive law any more than any other kind of property.

Property in slaves had been acquired initially not by statutory law but, essentially, by first possession, just like many other kinds of property. “The property in the slave in the planter, became thus just the property of the original captor.”Footnote ⁷³ Property in slaves, although confirmed and regulated by positive law, did not, contra Mansfield, depend in some fundamental way upon the existence of positive law for its legitimacy. Rather, its legitimacy was bottomed by the sorts of background common law claims, such as first possession and discovery, upon which many other kinds of property were based.

James Thornwell, a Southern Presbyterian minister and outspoken defender of slavery, would take this one step further and announce that the principle of “freedom national, slavery local” implicit in Somerset was the exact reverse of the truth and that slavery was, in fact, the natural default rule whereas freedom and abolition were its local, positive law-based exceptions.

Wherever one turned geographically and historically, slavery, not freedom, was the default rule.

Southern treatise writers in the 1850s argued at great length that slavery had been commonplace throughout history and was, therefore, legally blessed everywhere by the laws of nations. Thomas Dew, a Southern historian and president of the College of William and Mary, argued that “looking to the whole world, we may, even now, with confidence assert, that slaves, or those whose condition is infinitely worse, form by far the largest portion of the human race!”Footnote ⁷⁵ Thomas Cobb, a Georgia legal scholar, opined that slavery “was more universal than marriage and more permanent than liberty.”Footnote ⁷⁶ And in his 400 page proslavery tome Southern Institutes, George Sawyer similarly pointed out the widespread existence of slavery in the Old and New Testaments, ancient Greece and Rome, medieval Europe, England, and America. He concluded that “slaves have been deemed lawful articles of commerce by the customs and laws of every nation” and that therefore the right to own slaves became “in the eyes of all nations a vested right, as indefeasible by the force of any subsequent contravening custom, as that to any other species of property.”Footnote ⁷⁷ And turning to Mansfield's decision in Somerset, Sawyer concluded that the basis for Mansfield's decision had, regrettably, not been law, as the law of nations blessed slavery and the rights of owners to take their property where they wished, but rather the judge's own policy judgment about the justness of that law.Footnote ⁷⁸ In Sawyer's view, if Mansfield had but consulted the extensive historic record of slavery in England, and the law of nations more generally, he would have reached a better decision. But as he had not done so, “this case, as reported, has but little weight of authority upon any principle whatever.”Footnote ⁷⁹

The final step toward attempting to undo the grip Mansfield's decision had on Northern and Southern statesmen was taken by writers and politicians such as Thomas Cobb and Alexander Stephens, who sought to argue that slavery, far from being morally “odious,” was in fact a positive good. Cobb, noting the influence Mansfield's opinion had had even on Southern state courts and slaveholders more generally, observed, “That slavery is contrary to the law of nature, has been so confidently and so often asserted, that slaveholders themselves have most generally permitted their own minds to acknowledge its truth unquestioned. Hence, even learned judges in slave-holding States, adopting the language of Lord Mansfield, in Somerset's case, have announced gravely, that slavery being contrary to the law of nature can exist only by force of positive law.”Footnote ⁸⁰ Cobb then proceeded to explain in more than fifty pages how and why Mansfield's critical claims about slavery were inapplicable to the American system which, founded upon the mental and moral inferiority of the African race, and designed for the improvement and happiness of the race, was in fact in accordance with natural law. “The history of the negro race then confirms the conclusion to which an inquiry into the negro character had brought us: that a state of bondage, so far from doing violence to the law of his nature, develops and perfects it; and that, in that state, he enjoys the greatest amount of happiness, and arrives at the greatest degree of perfection of which his nature is capable. And, consequently, that negro slavery, as it exists in the United States, is not contrary to the law of nature.”Footnote ⁸¹ Alexander Stephens as vice president of the new Confederacy would later adopt these sentiments as his own in his famous “Cornerstone Address”:

Far from being an odious, peculiar institution supported only by positive law, as the Southern state courts had conceded in the 1820s, slavery was, in the judgment of Southern historians, statesmen, and courts in the 1850s, the natural state in which humans had happily lived. Mansfield's dicta, at first used by the South as a source of limited protection for slavery where it existed, had finally been turned on its head.