SOMERSET'S CASE 98 Eng. Rep. 499 (K.B., 1772)

The case of Somerset v. Stewart, decided by King's Bench (the highest common law court in England) in 1772, profoundly affected the constitutional status of slavery in England and in the United States after independence (because the precedent had become part of American common law). In a brief opinion, Lord Mansfield, Chief Justice, held that slavery "must be recognized by the law of the country where it is used." He further declared that "the state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only [by] positive law." Somerset's Case did not abolish slavery in England or America, but until the 1850s it was interpreted to mean that slavery did not exist where it was not established by positive law (which, according to Chief Justice john marshall in The Antelope [1825], might include custom as well as statutory law). Abolitionists construed Mansfield's words to mean either that slavery was universally illegitimate or that it had a legal existence only where affirmatively established by a slave code. They denied that the federal government had power to establish slavery in any territory or district, or to protect it anywhere. (See abolitionist constitutional theory.) This argument became the basis of the Republican "Freedom national, slavery local" slogan of the 1850s and was reflected in stephen a. douglas ' s freeport doctrine of 1858. Somerset's Case also complicated interstate relations in the matter of fugitive and sojourning slaves; some free states in the 1850s refused to recognize the continuation of an individual's slave status in a free jurisdiction. (See fugitive slavery.) Southern jurists responded by repudiating the liberating potential of the Somerset doctrine after 1851, dismissing Mansfield's words as obiter dicta or error.

William M. Wiecek
(1986)