05 March 2014

The Somerset case 1772

Re: Somerset v. Stewart, Lofft 1, 98 E.R. 499 (1772).
Some quick readings about conceptions of law at work in the case:

Lawyer Alleyne for Somerset (a slave): slavery is not natural, but "municipal" (conventional); so, slavery cannot cross municipal boundaries (since conventions change from one municipality to another). This seems a perfectly fair conceptual point about the concept of slavery, though it's unclear to me what conception of law is at work; it seems compatible with both conventionalism and pragmatism.

Lawyer Wallace for Stewart (a slave owner): claims there is no law against, and so (given the acceptance of villenage, a sort of share-cropping in feudal times--not nice) there is no case against slavery. This reads pretty straightforwardly as soft conventionalism. 'Soft' because they are prepared to accept the existence of a supporting right even in the absence of positive law.  

Mansfield for the Court: since there is no English positive law on the matter, he reasons that there is no case for holding Somerset in slavery. (Strict conventionalist reasoning.) He considers, but ultimately sets aside, pragmatic considerations about cost and consequence of slavery. He does have a plain fact-y moment where he refers to the law as such.

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