Vol. 15 No.5 (May 2005), pp.460-464

THOUGH THE HEAVENS MAY FALL: THE LANDMARK TRIAL THAT LED TO THE END OF HUMAN SLAVERY, by Steven M. Wise.  Cambridge, MA: Da Capo Press, 2005.  282pp.  Hardcover. US$25.00/CDN$34.95.  ISBN 0738206954.

Reviewed by James C. Foster, Department of Political Science, Oregon State University—Cascades.  Email: James.foster@osucascades.edu

Among the challenges historians face in pursuing their craft is choosing from the multiple, interrelated experiential strands arrayed across time, where to pick up the particular story chosen from among stories and, perhaps most importantly, what to make of the specific tale told.  By plucking an episode (or string of episodes) out of the durée that is lived experience—the flowing river of life invoked so compellingly by Henri Bergson (1859-1941)—the historian at once defines and defiles.  When done well, the trade-off is amply worthwhile: adroit historians illuminate as they inevitably displace.  But “thinking backwards” (Moore) is fraught with peril.  Steven Wise’s book exemplifies both the accomplishments and pitfalls of doing history.  One the one hand, he has written a captivating account of SOMERSET v. STEUART—one “landmark” trial in the multifarious, ongoing struggle against slavery.  On the other, his book is akin to what Benjamin R. Twiss, in 1942, referred to as “lawyers’ history” in its tendency to abstract, as it celebrates.

First, the good news.

Steven Wise brings alive the story of the contest that resulted in James Somerset “she[dding] his legal thinghood and [becoming] legally visible” (p.ix).  SOMERSET v. STEUART was a monumental trial in 1772.  It remains a monumental story today.  Wise does it justice.  His account reminds us of the acute inhumanity of slavery, quoting Shakespeare to good effect in The Merchant of Venice (act IV, scene I):

You have among you many a purchas’d slave,

Which, like your asses, and your dogs, and mules,

You use in abject and slavish parts,

Because you bought them.

He richly contextualizes his SOMERSET story by tracing the arc of enslavement in England through three “wave[s] of English unfree” (p.13), from early Anglo-Saxon times, through villeinage until the end of the sixteenth century, and the introduction of black slavery in the 1560s.  The third wave saw a twenty-year-old black African being brought to England from America by his owner Charles Steuart in November, 1769.  The young man’s past is invisible:

We don’t know his African name, his mother’s name, or his father’s, or whether he had siblings.  We don’t know where he was kidnapped or how.  If he was like many of the 10 or 11 million Africans who would be forced across the Atlantic, he spoke Bantu, and he was small. . . . [H]e survived a Middle Passage so harrowing that sharks, waiting for bodies to be pitched over the sides, often trailed Guineamen [British slave ships] across the Atlantic, and were rarely disappointed (p.1). [*461]

James Somerset ran away from his owner in October, 1771.  He was at liberty for fifty-six days until the slave-catchers Charles Steuart hired to track Somerset down found him, shackled him, and threw him on the ship Ann and Mary.  The Ann and Mary was scheduled to sail for Jamaica where Steuart had ordered John Knowles, the ship’s captain, to sell Somerset into labor in the notoriously hellish, and for slaves deadly, British West Indies’ sugar plantations.  Here James Somerset’s story takes a decisive turn.  (About whether the same can be said of human slavery per se, more below.)

James Somerset was spared likely death as a cane field worker because three largely anonymous Londoners—Elizabet Cade, John Marlow, and Thomas Walkin (Wise identifies them as Somerset’s “godparents”)—applied to Murray William, Lord Mansfield for a writ of habeas corpus ordering Captain Knowles to surrender Somerset to the jurisdiction of the Court of King’s Bench.  Knowles’ compliance with this writ set the stage for a series of legal “tests” (Chaps.5, 6, 8 & 9) culminating in Lord Mansfield’s SOMERSET decision.  “At the turn of the eighteenth century,” Wise observes, “the English law of black chattel slavery was in chaos” (p.27).  By the same token, “the constant practice of the Court of King’s Bench under Lord Mansfield [was to persist] strenuously . . . in delivering up all runaway slaves to their master” (p.30).  Still, “[t]he Chief Justice . . . possessed an independent mind, and he was no one’s servant” (p.80).

Absorbing yarns, conventionally told, need heroes.  Such tales also require villains.  The hero of Wise’s account is Granville Sharp.  Sharp was an abolitionist.  He was possessed, like Wise himself, with an abiding belief in law; in Sharp’s case, moral law.  He was “inclined to make the law what perhaps it should be” (p.33 quoting lawyer Daines Barrington on Sharp).  A “religious bigot” (p.34), a pacifist, accomplished musician, and autodidact, Sharp was convinced that “[i]f the most prominent lawyers and judges of England accepted the legality of human bondage, they would have to change their depraved opinions and he would show them why” (p.33).  And, indeed, he did.  He did so in the face of opposition by two reputedly most distinguished attorneys in the Realm (John Dunning and James Wallace) and despite the “deep-pocket” financing of West Indies sugar plantation interests who backed Charles Steuart—the villains.  For example, Dunning, without a trace of shame or irony, argued to the three puisne (associate) judges and Lord Mansfield that Somerset’s enslavement was punishment for property crimes he committed (when he was eight!), and “compared the relationship of master and slave to that of husband and wife” (pp.167-168).  To these and other arguments on Steuart’s behalf, a unanimous Court of King’s Bench replied, on June 22, 1772, that slavery “is so odious that nothing can be suffered to support it but positive law [and because it cannot be said] this case is allowed or approved by the law of England[,] . . . therefore the black must be discharged” (p.182).  Lord Mansfield had telegraphed this decision a month earlier when, after taking the case under advisement due to the parties insistence that the Court decide the matter, he had said to a reporter “if the parties will have [*462] judgment, ‘fiat justitia, ruat cœlum (let justice be done though the heavens may fall)” (p.173).

Engaging storytelling does not necessarily good history make.

Above, I quoted Wise in his Preface: “James Somerset shed his legal thinghood and became legally visible . . . (p.ix).  Wise finishes that sentence: “. . . and that was the beginning of the end of slavery” (p.ix).  Would that Wise were right.  The history of ending human “slavery” is neither as simple, nor as legalistic nor, for that matter, as conclusive as Wise’s version suggests.  In mid-May of this year, for example, an article in THE NEW YORK TIMES reported that in Britain “300 . . . black boys 4 to 7 years of age were missing or were unaccounted for,” a disclosure that “may have cast a rare spotlight into a secretive world of child trafficking that the authorities seem unable to control or prevent” (Cowell 2005; cf. Kristof 2004).

Wise appears to want to tell his story both ways: making more of SOMERSET than the subsequent brutal reality of slavery supports, while seeming to understand the decision’s limited scope.  Of Lord Mansfield, Wise writes: he “had long been torn by the odiousness and plain immorality of English slavery and the obvious fact that the slave trade enormously benefited British merchants and planters as well as the Crown” (p.210).  Nevertheless, Wise closes his book proclaiming that SOMERSET “proved just the opening salvo in a legal barrage that, within a century, splintered all of human slavery’s bulwarks” (emphasis added) (p.225).  Only a lawyer-historian could make that statement.  SOMERSET did not even begin to end slavery in the British West Indies.  A century after Lord Mansfield expressed his fear that “the heavens may fall” that particular Hell continued to prosper, copiously consuming the lives of black slave laborers.  Although SOMERSET v. STEUART figures as part of the ongoing struggles against human slavery, it no more unraveled that “system in which human beings were regularly sold, bred, and distributed like beasts” (p.223, quoting John T. Noonan)  than John Brown “killed” (Reynolds 2005) slavery in the United States.

While reading Wise’s book, I kept thinking about Derrick A. Bell’s interpretations of BROWN v. BOARD OF EDUCATION.  In stark contrast to Wise’s recourse to a neo-Carlylian “Great Man Theory of History,” and his tendency to conflate declaring law with social justice, Bell’s take on BROWN is structural and shorn of illusions (Bell, 1976, 1980).  Contrast Wise’s quaint take on Lord Mansfield’s opinion as “a wallop to the [slave] system from which it never recovered” (p.223) to Bell’s explanation of why he would have dissented in BROWN:

We need a new policy compass, one that recognizes and incorporates the fact that many whites are all too ready to sacrifice their economic and political interests in causes they view as protecting their entitlement to what so many assume is a vested property right in whiteness (Balkin 2002, at 206; cf. Bell 1992).

If LPBR readers are looking for an entertaining read, pick up Wise’s book.  For more expansive insight into the social realities of law and black African slavery—especially in the American [*463] context—look elsewhere (for starters: Donnan 1930-1935; DuBois 1965; Franklin and Moss 2000; Hurd 1858-1862; Morrison 2004; Phillips 1918).

REFERENCES:

Balkin, Jack M.  2002.  WHAT BROWN v. BOARD OF EDUCATION SHOULD HAVE SAID: THE NATION’S TOP LEGAL EXPERETS REWRITE AMERICA’S LANDMARK CIVIL RIGHTS DECISION.  New York, NY: New York University press.

Bell, Derrick A.  1976.  “Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation.”  85 YALE L.J. 470.

Bell, Derrick A.  1980.  Comment, “Brown v. Board of Education and the Interest-Convergence Dilemma,” 93 HARVARD L. REV. 518.

Bell, Derrick A.  1992.  FACES AT THE BOTTOM OF THE WELL: THE PERMANENCE OF RACISM.  New York, NY: Basic Books.

Bergson, Henri.  2001.  TIME AND FREE WILL: AN ESSAY ON THE IMMEDIATE DATA OF CONSCIOUSNESS.  New York: NY: Dover.

Cowell, Alan.  May 15, 2005.  “300 Missing Boys in Britain Fuel Child-Trafficking Fear.”  http://www.nytimes.com/2005/05/15/international/europe/15missing.html.

Donnan, Elizabeth (ed).  1930-1935.  DOCUMENTS ILLUSTRATIVE OF THE HISTORY OF THE SLAVE TRADE TO AMERICA (4 vols).  Washington, D.C.: Carnegie Institution of Washington.

Du Bois, W.E.B.  1965.  THE SUPRESSION OF THE AFRICAN SLAVE-TRADE TO THE UNITED STATES OF AMERICA, 1638-1870.  New York, NY: Russell & Russell.

Franklin, John Hope and Alfred A. Moss, Jr.  2000.  FROM SLAVERY TO FREEDOM: A HISTORY OF AFRICAN AMERICANS.  New York, NY: Knopf.

Hurd, John C.  1858-1862.  THE LAW OF FREEDOM AND BONDAGE IN THE UNITED STATES (2 vols).  Boston, MA: Little, Brown.

Kristof, Nicholas D.  January 21, 2004.  “Bargaining for Freedom.”  THE NEW YORK TIMES.  Section A, p. 27, column 6.

Kristof, Nicholas D.  January 28, 2004.  “Loss of Innocence.”  THE NEW YORK TIMES.  Section A, p. 25, column 5.

Kristof, Nicholas D.  January 31, 2004.  “Stopping the Traffickers.”  THE NEW YORK TIMES.  Section A. p. 17, column 1.

Kristof, Nicholas D.  January 15, 2005. “Cambodia, Where Sex Traffickers Are King.” THE NEW YORK TIMES.  Section A, p. 15, column 1.

Kristof, Nicholas D.  January 19, 2005. “Leaving The Brothel Behind.”  THE NEW YORK TIMES.  Section A, p. 19, column 6. [*464]

Kristof, Nicholas D.  January 26, 2005.  “After The Brothel.”  THE NEW YORK TIMES.  Section A, p. 17, column 5.

Kristof, Nicholas D.  January 29, 2005.  “Sex Slaves? Lock up The Pimps.”  THE NEW YORK TIMES.  Section A, p. 19, column 1.

Moore, F.C.T.  1996.  BERGSON: THINKING BACKWARDS.  Cambridge, England: Cambridge University Press.

Morrison, Toni.  2004.  BELOVED.  New York: NY: Vintage.

Phillips, Ulrich Bonnell.  1918.  AMERICAN NEGRO SLAVERY: A SURVEY OF THE SUPPLY, EMPLOYMENT AND CONTROL OF NEGRO LABOR AS DETERMINED BY THE PANTATIN REGIME.  New York, NY:  D. Appleton.

Reynolds, David S.  2005.  JOHN BOWN, ABOLITIONIST: THE MAN WHO KILLED SLAVERY, SPARKED THE CIVIL WAR, AND SEEDED CIVIVL RIGHTS.  New York, NY: Knopf.

Twiss, Benjamin R.  1942.  LAWYERS AND THE CONSTITUTION: HOW LAISSEZ FAIRE CAME TO THE SUPREME COURT.  Princeton, NJ: Princeton University Press.

CASE REFERENCES:

BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).

SOMERSET v. STEUART, 20 Howells State Trials 2 (1772); also reported as SOMERSET against STEUART, 98 Eng. Rep.499 (K.B. 1772).

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© Copyright 2005 by the author, James C. Foster.