Somerset's Case

James Somerset was an African who was transported as a slave to Virginia in America. There he was sold to a man called Charles Stewart. In 1769 Stewart brought his slave with him on a journey to England. Once in England Somerset looked after his master for two years, but when Stewart decided to return to Virginia, he escaped his master's


THE INVISIBLE PALACE —PART I 'JUDGE-MADE' LAW • 31

control. Stewart employed men to re-capture him, and he was taken to a ship called the Ann and Mary, which was bound for Jamaica. There Somerset was kept in irons.

Word of Somerset's plight leaked out before the ship set sail, and a writ (claim) of habeas corpus was issued to bring him before a court. Habeas corpus literally means 'you must have the body' and the ancient writ of habeas corpus (which still survives today) commands any person holding someone in custody to bring that person before the court and justify his detention.

The case was heard by Lord Mansfield. It was argued that there were over ten thousand slaves in England at this time, and if he let Somerset free the result would be to abolish slavery altogether. This would cause great economic loss to many people. Lord Mansfield ended slavery in England with these words: 'The state of slavery is so odious that nothing can be suffered to support it, but positive law [meaning an Act of Parliament]. Whatever inconvenience, therefore, may follow from the decision, I cannot say that the case [in favour of slavery] is allowed or affirmed by the law of England. The air of England is too pure for any slave to breathe. Let the black go free.'

It is not within the scope of this book to give a detailed history of the courts, or to recount the many stories which might be told of important judge-made laws; but it is necessary to understand that the courts are still constantly advancing the law to meet the ever-changing demands of society. Some dramatic examples of this are to be found in cases involving difficult questions of medical ethics—ranging from artificial birth and 'cloning' to the artificial prolonging of life. Doctors may have their own and varied views about these life and death issues, but it has been left to the courts to devise the sensitive rules which govern these situations. Another recent illustration of the courts being prepared to move with the times concerns the offence of rape:

• For centuries it had been the (common) law of the land that a man could not be found guilty of raping his wife. In a case heard in 1992 (also see Chapter 11), the courts decided that in this day and age, where a husband and wife had separated, and she wished to have nothing more to do with him, the husband would be guilty of rape if he had sexual intercourse with her without her consent.

Modern judges are not, however, always prepared to change the old common law themselves, even if they think this is desirable. Usually they will not do so where it is thought best that Parliament should consider carefully the social consequences of change; but even if they are not prepared to alter the law, judges may make recommendations for change, and Parliament will normally take their views seriously. Here are two recent examples of cases where the courts have refused to alter the law, but Parliament has done so in the wake of their recommendations:

• It was the ancient (common) law that a person could only be charged with



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