Sat | Jan 20, 2018

Laws of Eve | Aspects of Black History Month

Published:Monday | February 27, 2017 | 12:00 AM

From enslavement to segregation, black history is littered with acts of oppression and dehumanisation. The courts played a significant role in that story, and today I will highlight two of the important cases - Somerset v Stewart (1772) and Dred Scott v Sandford (1857).

Somerset, a slave, was bought by Stewart, a custom's officer, in Virginia and taken to England. Somerset escaped, but was recaptured and imprisoned on board the ship Ann and Mary, which was bound for Jamaica. Before Somerset could set sail for Jamaica, his godparents made an application before the King's Bench Court for a writ of habeas corpus to determine whether his imprisonment was lawful.

The application was heard by Lord Mansfield and Somerset was freed. From the celebrated judgment, the following statement is often cited:

The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory. It's so odious, that nothing can be suffered to support it but positive law.

Other statements by Lord Mansfield, which were interpreted to mean that the common law recognised no status of slave and that full ownership of another human being had been unlawful under legislation, caused the Somerset decision to be heralded for fuelling the anti-slavery movement.




Legally, however, the case only served to settle two narrow legal points in relation to slavery. The first point was that a slave could not be forcibly removed from England against his will, and the second was that the slave could take out a writ of habeas corpus to prevent that removal.

The Scott case was decided in the United States Supreme Court, and concerned issues as to whether a slave could sue in federal court, and whether a slave became free by entering a free state. The brief facts are that Scott was a Missouri slave. He was sold to John Emerson in Missouri. He was then taken to Illinois, a free State, and on to the free Wisconsin Territory before returning to Missouri.

After Emerson died, Scott sued Emerson's widow filed for his freedom in the Missouri Supreme Court and claimed that his residence in Illinois had made him a free man. He was unsuccessful and took his action to the federal court and then to the US Supreme Court, where Emerson's widow was successful.

The judgment in this case is cited for the following reasons:

- It determined that African Americans (whether they were free or slaves) were not citizens, and could not therefore bring actions before the federal court.

- Slaves were property and therefore had no right to commence court proceedings.

- The fact that Scott had moved from one state to another was irrelevant, because the law of the state in which he was then resident (the slave state of Missouri) should apply.

- It struck down the "Missouri Compromise" as being unconstitutional, because it deprived property owners (slave owners) of the right to take their property anywhere in the United States. Effectively, the court ruled that congress did not have the proper to enact a law to prohibit slavery, because it breached existing constitutional rights to own property. (The Missouri compromise was a law that prohibited slavery in the Louisiana territory, except for the state of Missouri.)

Fortunately for Scott, he was sold two months after the Supreme Court's decision, and his new owners freed him.

When we reflect on those cases, the gains of the 19th and 20th centuries, including the abolition of slavery and the dismantlement of Apartheid in South Africa, assume their rightful significance.

- Sherry Ann McGregor is a Partner and Mediator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to or