Intolerable Cruelty | The Nation


Intolerable Cruelty

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If The Queen's Slave Trader deals with the beginning of England's involvement with the slave trade and Hochschild's Bury the Chains with its long denouement, then Steven Wise's Though the Heavens May Fall discusses the point in between, when the British began wrestling with the question of whether to confine slavery to the colonies or to permit its spread to the metropole. Unlike the settlers on the American mainland, few Caribbean planters had any intention of making the West Indies their home; instead, they returned to England at the first opportunity, using their new-found fortunes to set themselves up as country gentlemen. The problem was that many brought back black retainers, whom they persisted in treating as slaves. By 1680, servants like these had grown so numerous that it was said that a fashionable lady "hath always two necessary implements about her; a Blackamoor and a little dog." But what happened when such "blackamoors" ran off to London? Could their masters send out slave-catchers to track them down and bring them back? Could they whip them or ship them back to likely death in the West Indian cane fields? In 1569, in the case of an Englishman who had returned from Muscovy with a Russian slave, a court had supposedly ruled that "England was too pure an air for slaves to breathe in." But the only record of the case was a passing mention that another court had made of it some seventy years later. Was English air still too pure or had something happened in the interim to allow the institution of slavery to breathe free?

About the Author

Daniel Lazare
Daniel Lazare is the author of, most recently, The Velvet Coup: The Constitution, the Supreme Court, and the Decline of...

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The upshot was a series of test cases culminating in a suit in November 1771 on behalf of a 31-year-old black man named James Somerset, who had run away but whose master had recaptured him and was now trying to ship him off to Jamaica. Was Somerset merely a bit of lost property or was he a free man being held against his will? Wise does a good job of guiding the reader through the thicket of eighteenth-century common law. One problem that Somerset and his supporters faced was the medieval law of "villeinage," still on the books even though it had long since fallen into disuse. If the courts decided that a slave was merely a modern-day villein, or serf, then his master might be legally entitled to transport him to Jamaica. But if the courts had decided that was the case, the consequences would have been explosive, since the legal status of English agricultural workers in general would also have been jeopardized. If black people could be enslaved under the law of villeinage, then they could too. In retrospect, it is clear that was not going to happen. If the day an English aristocrat flogs a pauper with a cat-o'-nine-tails is the day the English aristocracy's privileges came to an end, as Macaulay once wrote, then the day a common-law judge allowed a return to villeinage was the day the common law came to an end as well.

Hence, it was more or less inevitable that Lord Mansfield, the judge in the Somerset case, would decide on June 22, 1772, that villeinage did not apply and that slavery was "so odious" that, unless Parliament specifically legalized it, it was incompatible with English common law. Nearly 200 black Londoners celebrated a few days later with a ball in a pub not far from Westminster Hall.

Wise, an attorney who has taught at Harvard and other law schools, clearly enjoys a good tangle, and his enthusiasm for the legal ins and outs of the Somerset case is engaging. Still, there is something very American about his unqualified admiration for English common law. Only in the United States, where the Constitution is worshiped with religious veneration, could a legal historian fail to see the problem with disallowing slavery purely on the basis of local, customary, organic law. Mansfield did not rule that slavery was inhumane or undemocratic, merely that it was unconstitutional in England alone. Rather than striking a blow at slavery, he merely clarified the ground rules by specifying where it was permitted under the British crown and where it was not. In a sense, Somerset invited Englishmen to do abroad what they could not do at home, which is one reason slavery would continue in the British West Indies for another six decades and in British India for another nine. Even at its most liberal, the English common-law tradition was an intensely insular and conservative one (just as the American constitutional tradition is today). What it gave with one hand, it took away with the other.

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