Posted by Krista J. Kesselring, 10 October 2018.

The case of James Somerset in 1772 is one of the most celebrated episodes in the history of English law. Despite the uncertainties about what, precisely, Justice Mansfield said, his decision in Somerset v Stewart was widely taken to mean that slavery would not exist in England. Even if Mansfield had only declared the illegality of the coerced removal of a slave from England, many people—including some enslaved people, in England, Scotland, and elsewhere—thought the decision affirmed that whatever the laws of other nations, whatever the laws of Britain’s own colonies, slavery had no place in England itself.[1] The 1772 decision turned, in part, on invocations by James Somerset’s counsel of Cartwright’s case, a purported decision in 1569 which declared the air of England too pure for slaves to breathe.[2]

The early case is frequently mentioned in the voluminous literature on Somerset and abolition, but remains a mystery: no contemporary record or report on the trial has yet been found. I still haven’t found it, unfortunately; but I have found a previously unnoticed seventeenth-century invocation of Cartwright. This newly-noticed reference to the case has implications for our understanding of discussions of slavery in the decades in which the practice began to take on the institutional shape that subjected James Somerset and millions of people like him to lives in bondage. Whereas the usual source for Cartwright has been read as suggesting that its early use did not refer to personal freedom, this newly found reference did just that.

I’ll start with a brief return to Somerset’s case, though its broad outlines are probably familiar to many readers. In Boston, Charles Stewart purchased an enslaved African, a man known to history as James Somerset, and brought Somerset with him upon his return to England. Not long thereafter, Somerset escaped; Stewart secured his recapture, and put him on a ship bound for Jamaica with orders for his sale upon arrival. Friends of Somerset’s sued out a habeas corpus to challenge the legality of his detention, with the noted abolitionist Granville Sharp taking a particular interest in the case. Somerset’s advocates, including Francis Hargrave and William Davy, argued that whatever colonial laws might allow, neither common nor statute law recognized slavery in England itself. And thus, they asserted, Somerset’s detention was illegal. Whereas some precedents might be read as treating enslaved people as property even within England, Hargrave and Davy invoked an older precedent: Cartwright’s case, from 1569, in which a merchant by that name was stopped from flagellating a Russian man he claimed as his enslaved property. In that earlier case, it was said that the judges issued their now famous statement about England’s pure air. The reference to Cartwright’s case was not the only factor in the decision in Somerset’s favour, but it helped.

As such, Cartwright’s case is frequently mentioned in writings on the Somerset decision, but very often in misleading or mistaken ways. We know little enough about the case, but even that is often misstated.

The source Somerset’s lawyers used was John Rushworth’s Historical Collections, a multi-volume compendium of historical commentary and sources written and published from the mid- to late seventeenth century by the lawyer, former member of parliament, and secretary to men as different as Oliver Cromwell and the Restoration-era judge Orlando Bridgeman.[3] In the Somerset trial, Lord Chief Justice Mansfield asked if Hargrave and Davy had other evidence for the existence of the case, but Rushworth was the only source they noted.

So, here’s the passage from Rushworth:

‘In the eleventh of Elizabeth, one Cartwright brought a slave from Russia, and would scourge him, for which he was questioned; and it was resolved, That England was too pure an air for slaves to breath in.’

Rushworth mentions the case as a digression in his 1637 section, where he’s discussing John Lilburne’s punishment by the Court of Star Chamber after his arrest for dispersing libellous books. This was the first of the trials that would see ‘Freeborn John’ become associated with the right to free expression and to refuse self-incrimination.[4]

Rushworth brings in material from a subsequent discussion in parliament to condemn and reverse the harsh judgement against Lilburne. Already we have here a fascinating bit of history that many references to Cartwright in the secondary literature miss, and the source of a common error: Lilburne’s trials rank alongside Somerset’s as some of the more iconic and significant in English history, yet the link is often not noted. Some of the people who get it wrong today seem not to go back to Rushworth but simply to cite John C. Hurd’s book, The Law of Freedom and Bondage in the United States (1858), or a series of references that can be traced back no further than Hurd, which stated of Cartwright that ‘the only known reference to the case is found in an attack on Star Chamber, uttered as part of the 1640 impeachment proceedings against its judges’. We miss there the connection to Lilburne. And there’s nothing here in the Rushworth passage—or in Hurd, for that matter—to suggest that Cartwright was itself a Star Chamber case, yet that’s another assertion sometimes seen in the literature.^[5]

So, some people either don’t go back to Rushworth or read him too quickly, but Rushworth himself made a mistake—as Ted Vallance has noted.[6] This mention of Cartwright was made not in 1637, nor even in 1640 in the parliamentary attack on Star Chamber, but in 1646, when parliament overturned Lilburne’s Star Chamber judgement. Rushworth’s own source was a publication by John Lilburne, A True Relation of the Material Passages of Lieut. Col. John Lilburne’s sufferings, as they were represented and proved before the Right Honourable, the Houses of Peers, in Parliament Assembled, published shortly after the hearing in early 1646.

So, the link between Somerset’s and Lilburne’s trials through the invocation of Cartwright, while not much noted, has previously been brought to light. Why, then, am I bringing it up here? Well, because it gives us a lead to follow. Lilburne’s lawyers in 1646 were two men who would become much more famous at the end of the decade: John Bradshaw and John Cook. They became, respectively, the President of the High Court of Justice and the Solicitor General who tried King Charles I as a murderer, a tyrant, and a traitor to his people. (John Cook himself would be executed at the English Revolution’s end for his part in prosecuting the king.^[7])

There’s no mention of the Cartwright case in the recorded proceedings of King Charles’s trial, unfortunately. But we do find John Cook invoking it in one of his publications, a mention not previously noted in the literature. It appears on page 71 in Cook’s 1646 Vindication of the Professors and Profession of the Law, which he republished in 1652 under a slightly different title, The Vindication of the Law.

Two things are interesting about this reference. One, it gives us a bit of a clue to Cook’s own source – though one I’ve unfortunately not yet been able to decipher –  with the brief mention of ‘Camb’ in the margin. I know of no law reporter or set of reports that might be abbreviated that way. It might be short for ‘Cambridge’, which might yet help us find the original trial record in the archives of one court or another. I’d wondered if it might be short for Camden, as in the celebrated Elizabethan historian William Camden, whose name was often spelled with a b and sometimes abbreviated this way in contemporary references. There’s nothing in Camden’s published histories of Britain or the reign of Elizabeth that I have found (unsurprisingly, or otherwise someone would have long since noticed it.) There’s a chance that Camden had some reference to Cartwright in the voluminous manuscript notes he compiled when writing his histories – he did show significant interest in the exploits of the nascent Muscovy Company over the 1550s and 1560s, the 1569 Russian ambassadorial visit to London, and such like, and many of his manuscripts were preserved in the library of his friend Sir Robert Cotton, to which John Cook very likely had access. But an admittedly very quick dip into Camden’s manuscripts that survived early theft then the fire in Cotton’s library–now the Cottonian collection at the British Library–didn’t bring anything to light. So this little hint hasn’t gotten me anywhere, but I put it out here in case any readers have ideas that you might want to pass along or to act upon yourselves.

The other interesting thing about Cook’s invocation of the Cartwright case is the way he used it. Historians interested in the Somerset case who did go back and read Rushworth have noted that in its appearance in the Lilburne hearing, Cartwright’s case was raised to note the extremity of the whipping, not the illegality of slavery. Ted Vallance suggests that in contrast to Somerset’s lawyers, for whom Cartwright’s case affirmed that a slave’s presence on English soil freed him, for Rushworth, the point was that Lilburne’s treatment by Star Chamber reduced him to the status of a slave. George van Cleve wrote much the same in his article on Somerset and its antecedents, noting that in its seventeenth-century appearance, Cartwright’s case ‘was regarded as establishing limits on the punishment of slaves in England, not as providing emancipation’. Dana Rabin and others, too, have said much the same.[8] And that is a reading largely consistent with the Rushworth passage. (It’s also the reading that Stewart’s lawyers used in 1772.) But in Cook’s other mention of the case, we see it used to more expansive ends. Here he’s condemning the imprisonment of debtors, a focal point for would-be law reformers of the revolutionary era. He notes that it’s almost ‘a proverb beyond sea, or rather a prodigy, that an English usurer may have as many slaves as he please, though a lord could not imprison his villain’. It is precisely in support of personal freedom that Cook invokes the Cartwright case in this second reference.

This sort of assertion of rights to personal freedom and the wrongs of slavery as early as the 1640s fits with recent studies of the intellectual and cultural ferment of the mid-seventeenth century. True, abolitionist discourse only gained coherence and traction in the eighteenth century, but we do see signs of its earlier roots even in the very years that chattel slavery was just beginning to take hold in English colonial ventures. John Donoghue’s study of the English Revolution in its broader Atlantic context builds upon earlier work by Carla Gardina Pestana, Susan Amussen, and others to make a case for the Revolution having birthed capitalist programs of imperial conquest premised on racialized slavery, yes, but also the first stirrings of abolitionist defenses of personal freedom. The latter grew in part from a popular republicanism rooted in lived experiences, such as the actions of people who fought the transportation of children for bonded service or the resistance of impressed soldiers and sailors who mutinied for fear they were to ‘be shipped and sold as slaves’. An ardent hostility to slavery survived at the very least as a ‘fire under the ashes’ of the failed revolution-within-the Revolution.[9]

So, we see Cartwright’s case being invoked in defense of personal freedom even in the seventeenth century, not just at the end of the eighteenth century. But, of course, one nagging question has always lurked around mentions of Cartwright’s case: did it actually happen? Trade contacts were blossoming between England and Russia around 1569, and a form of slavery did exist in Russia at the time.[10] It’s plausible, then. Other late sixteenth-century references to England’s ‘pure air’ and absence of slavery have been read as echoes of this mystery case, but might just as easily refer back to an earlier and broader tradition of talk of ‘free air’ and free people, in England and elsewhere.[11] That Cartwright appears in no reported slave law cases before Somerset has prompted doubts, but on the other hand, law reporting was still in its infancy in the late sixteenth century. Many of the law reports that were made remain in manuscript. And the legal history of the years of the civil wars and Revolution remains something of a black hole. It’s possible, then, that other reports and mentions of the case may yet come to light.

Or maybe John Cook did just invent it or misunderstand some other case, creating a usable past for his defense of John Lilburne and attack on debt-bondage. But, strikingly, whatever the actual history of a merchant called Cartwright and the Russian he reportedly claimed as his slave back in 1569, the story went on to be a precedent in not one but two signal episodes in the development of personal rights and freedoms, passing through the hands of a man who prosecuted perhaps the most controversial trial in English history.

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Feature image: Frontispiece to Theodorus Verax (Clement Walker), The Triall of Lieut. Collonell John Lilburne (1649) British Museum AN514450001, © The Trustees of the British Museum.

Second image: Frontispiece from Anon., The True Characters of the Educations, Inclinations, and Several Dispositions of all and Every one of those Bloody and Barbarous Persons who sate as Judges upon the Life of our late Dread Soveraign King Charles I (1661), General Reference Collection E. 1080 (15). © The British Library Board.

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[1] Most significantly, Joseph Knight, a man living as a slave in Scotland, came to this conclusion and sought his own freedom accordingly. His efforts prompted the Scottish case of Knight v Wedderburn (1778), which produced a more emphatic declaration against slavery on Scottish soil. See John W. Cairns, ‘After Somerset: The Scottish Experience’, Journal of Legal History 33 (2012): 291-312.

[2] Some of the contemporary material on the Somerset case has now been helpfully compiled by Andrew Lyall, ed., Granville Sharp’s Cases on Slavery (Oxford: Hart Publishing, 2017). For references to Cartwright, see pp. 22, 170, 192, 198. For more historical discussion of the case, in addition to the other works cited in these notes, see Ruth Paley, ‘Imperial Politics and English Law: The Many Contexts of “Somerset”’, Law and History Review 24.3 (2006): 659-664; Daniel J. Hulsebosch, ‘Nothing but Liberty: “Somerset’s Case” and the British Empire’, Law and History Review 24.3 (2006): 647-657; M.S. Weiner, ‘New Biographical Evidence on Somerset’s Case’, Slavery & Abolition 23.1 (2002): 121-136; William R. Cotter, ‘The Somerset Case and the Abolition of Slavery in England’, History 79 (1994): 31-56; James Oldham, ‘New Light on Mansfield and Slavery’, Journal of British Studies 27.1 (1988): 45-68.

[3] John Rushworth, Historical Collections, II (London 1680), p. 468.

[4] The literature on Lilburne is voluminous, but see most recently Michael Braddick, The Common Freedom of the People: John Lilburne and the English Revolution (Oxford, 2018).

[5] John C. Hurd, The Law of Freedom and Bondage in the United States (1858), p. 179. See, e.g., Jonathan A. Bush, ‘The First Slave (And Why He Matters)’, Cardozo Law Review 18 (1996): 610, which cites Hurd and Robin Blackburn’s Overthrow of Colonial Slavery (London, 1988), which also misreads Rushworth, and describes Cartwright as a 1567 Star Chamber case, a set of errors in turn repeated in Michael Guasco, Slaves and Englishmen: Human Bondage in the Early Modern Atlantic World (Philadelphia, 2014), p. 32.

[6] Edward Vallance, ‘Corrigendum’, History Workshop Journal 75.1 (2013): 306.

[7] Cook has received some posthumous glory thanks to Geoffrey Robertson’s The Tyrannicide Brief: The Story of the Man Who Sent Charles I to the Scaffold (London, 2005).

[8] George van Cleve, ‘”Somerset’s Case” and Its Antecedents in Imperial Perspective’, Law and History Review 24.3 (2006), 614; Dana Rabin, ‘Empire on Trial: Slavery, Villeinage and Law in Imperial Britain’, in Legal Histories of the British Empire, ed. Shaunnagh Dorsett and John McLaren (New York, 2014), p. 205.

[9] John Donoghue, Fire under the Ashes: An Atlantic History of the English Revolution (Chicago, 2013). See also Carla Gardina Pestana, The English Atlantic in an Age of Revolution, 1640-1661 (Cambridge, Mass., 2004) and Susan Dwyer Amussen, Caribbean Exchanges: Slavery and the Transformation of English Society, 1640-1700 (Chapel Hill, 2007). Donoghue’s arguments for the popular roots of anti-slavery discourse also build upon Robin Blackburn’s classic The Overthrow of Colonial Slavery, 1776-1848 (London, 1988).

[10] On Russia and Anglo-Russian connections in the sixteenth century, see Felicity Jane Stout, Exploring Russian in the Elizabeth Commonwealth (Manchester, 2015)   and M.T. Poe, A People Born to Slavery: Russia in Early Modern European Ethnography (Ithaca, 2001).

[11] Bush notes that William Harrison’s Description of England and Thomas Smith’s De Republica Anglorum both use this language (Bush, ‘First Slave’, p. 610, n. 36). On other appearances of ‘free air’, see, e.g., Stephen Alsford, ‘Urban Safe Havens for the Unfree in Medieval England: A Reconsideration’, Slavery & Abolition 32.3 (2001), 363-375.