After the Revolution: Somerset and the Antislavery Tradition in Anglo-American Constitutional Development

Lord Chief Justice Mansfield declared in Somerset v. Stewart (1772) that the nature of slavery is ‘‘so odious . . . nothing can be suffered to support it but positive law.’’ In this essay, I trace the principle laid down in Somerset through several cases that occurred during the first quarter of the nineteenth century, and I pay particular attention to two conservative judicial opinions in the 1820’s: Chief Justice John Marshall’s opinion in The Antelope (1825) and Lord Stowell’s opinion in The Slave Grace (1827). In each of these cases, practical considerations trump the antislavery constitutional tradition emanating from the Somerset decision. Rather than reflecting the triumph of illiberal constitutional theories, I argue that these cases demonstrate the ongoing tension between normative constitutional principles and practical political considerations.