Though the Heavens May Fall: The Landmark Trial that Led to the End of Human Slavery.

Though the Heavens May Fall: The Landmark Trial that Led to the End of Human Slavery

Steven M. Wise Da Capo Press www.dacapopress.com 282 pp., $25

It took a bloody civil war to end slavery in the United States. The American judicial system had not been up to the task. The Supreme Court's 1857 Dred Scott decision is the most infamous--and arguably the most disastrous--in the Court's long history. How then, many ask, was England able to abolish slavery by judicial decision in 1772?

That is not a simple question. Indeed, as I have stated it, the question may be misleading, for there is much debate about whether Lord Mansfield's ruling in Somerset v. Steuart actually abolished slavery in England. Professor William Wiecek of Syracuse University has written, "No other English decision on slavery has been so often quoted and almost as often misunderstood." Wiecek went on to warn that "Somerset best illustrates a legal world where things are not what they seem, a world of deceptive appearances and unforseen consequences."

Somerset is nevertheless a fascinating story. Steven Wise has written a workmanlike account that--notwithstanding the hyped subtitle--grapples with the complexity of its subject.

The basic facts are clear enough. On March 10, 1749, British slave traders took an eight-year-old boy on board a ship off the African coast. We know nothing of his life before, other than that his European slave owners would later claim he had been a slave in Africa. Five months later in Virginia, Charles Steuart, a Scotsman who traded in rum, sugar, tobacco, and slaves, bought the boy. Steuart owned other slaves, but he took a special liking to this boy, whom he called "Somerset." He made him his manservant; bought him finery such as silk, stockings, and ribbons; and even gave hint spending money from time to time. In 1765, Steuart moved to Boston, and four years later, he returned to England, accompanied by Somerset.

In 1771, Somerset ran away. He was probably hidden by friends somewhere in London, then a city of 800,000. Steuart hired slave-catchers to find him. When they apprehended Somerset 56 days later, they did not return hint to Steuart's household. Now that he no longer could be trusted, he was no longer useful as a manservant. Instead, they imprisoned him aboard the Ann and Mary, a ship anchored in the Thames.

Three Londoners--we know their names but nothing else about them--petitioned Lord Mansfield, chief justice of the King's Bench, to issue a writ of habeas corpus directing the captain of the Ann and Mary to produce Somerset and explain why he was being held. Mansfield issued the writ, and two days later the captain complied, explaining that Somerset was Steuart's slave and on Steuart's instructions he was taking Somerset to Jamaica to sell him. The petitioners argued that no man could be forcibly treated as a slave in England--or, as a 1569 case had put it, "England was too pure an air for slaves to breathe in." Mansfield ordered that upon the posting of a sufficient guarantee, the captain was to release Somerset pending trial.

Colorful personalities populate the drama that unfolded. The moving force behind the case was Granville Sharp, a social activist and author of a pamphlet arguing that slavery was illegal. Sharp had orchestrated an earlier case in which Lord Mansfield had declined to declare slavery unlawful. With Somerset's case, Sharp intended to try again.

Steuart engaged John Dunning, England's most distinguished barrister, as his chief counsel. It was a cynical move, as Dunning had worked with Sharp and represented the slave in the prior case. Now, by hiring Dunning, Steuart deprived Sharp of Dunning's formidable advocacy skills. Sharp was furious.

How could Dunning switch sides? Wise suggests he did it for money, quoting one historian as having said that Dunning never allowed "moral principles to interfere with his pocket." But A. Leon Higginbotham Jr. noted in his 1978 book In the Matter of Color that barristers were obliged to represent anyone who requested their services, as long as they were not already engaged in the matter.

Higginbotham may have the better explanation. Dunning's arguments were technically brilliant but lacked heart. Steuart himself described his counsel's performance as "dull and languid."

Sharp recruited a team of three barristers, who agreed to represent Somerset pro bono. All performed superbly. The one who garnered the highest praise was 31-year-old Francis Hargrave, who had never argued a case before and became famous overnight for his eloquence. But the most memorable line in the many hours of argument was uttered by the more senior John Glynn, who asked, "Upon what principle is it that a man can become a dog for another man?"

One of the most interesting characters in the drama was Mansfield. Then England's most respected jurist, he was especially well known for his expertise in commercial law. Would a judge who strongly believed that the law should enforce merchants' expectations--as Mansfield clearly did--render a decision potentially injurious to the slave trade? There were then an estimated 14,000 slaves in England, and, as Dunning would argue, they had a value of about 50 [pounds sterling] per head. Would the judge issue a ruling that would render 700,000 [pounds sterling] of property valueless?

Yet Mansfield was a progressive and independent jurist. He modernized commercial law by elevating the principle that merchants deal in good faith, and he infused all his jurisprudence with principles of equity, fairness, and practicality. He had little patience with formalism. In cases that surely displeased the Crown, Mansfield had held that Catholics could not be prosecuted for celebrating Mass, dissenters could worship as they pleased, and Quakers could testify in court even though they refused to take the traditional oath. And one personal fact deserves mention: Mansfield had no children but was devoted to a grand-niece, Dido Elizabeth Belle, the daughter of his white nephew and an African woman.

Unlike Sharp, Mansfield clearly was not looking for an opportunity to declare slavery unlawful. He pressed the parties to settle the case but declared that if they would not, then "fiat justitia, ruat coelum"--let justice be done though the heavens may fall.

Mansfield's final judgment was not quite that brave. Slavery, he declared, "is so odious that nothing can be suffered to support it but positive law." Somerset was to be set free because the law did not expressly permit slavery in England. The judgment did not affect the English slave trade, which was sanctioned by parliamentary statutes, or slavery in colonies that had approved it by legislation.

A point of modern interest is that the then-seemingly-progressive principle at the heart of Mansfield's rationale--that a jurisdiction need not honor legal decrees by sister jurisdictions about the status or relationships of persons when such classifications are repugnant to its own values--is now being used by those who argue that U.S. states should not be required to recognize same-sex marriages created by other states.

Wise, a lawyer known for advocating animal rights, is at his best when sticking to the law. He does a good job describing the many relevant precedents-leaning both ways--and analyzing the two sides' competing theories and strategies.

He is less successful at depicting the social and political context in which the case arose. He does not, for example, deal sufficiently with the 18th-century reality that destroying the slave trade would have destroyed the English economy. Britain was then the world's dominant slave trader. The city of Liverpool alone had 87 ships--some owned by members of Parliament--devoted to transporting Africans bound for slavery to various destinations in the New World. These facts do not appear in Wise's book.

As a result, Wise's account, like Mansfield's opinion, is mixed.

CARL T. BOGUS is professor of law at the Roger Williams University School of Law in Bristol, Rhode Island.