Lawyers have long been depicted as having a conflicted relationship to that modern style of contextual thought we call “history.” Their efforts to think about law have been alternately lauded for contributing to, and criticized for falling short of, a full-fledged historical consciousness.

In the last two decades or so, questions of law have moved back to the top of the research agenda in work on medieval English manor courts. This marks a shift away from the 1960s to the mid-1980s, when the historians on both sides of the Atlantic who established the court roll as the pre-eminent source for everyday life in the countryside sought inspiration from the social sciences rather than legal history. The court roll studies published in that period generated much methodological debate about use of these records to study peasants and their communities. Nonetheless, in most of those studies, consideration of the manor court as a legal forum first and foremost, or of the implications of reliance on a legal source to study social and economic history, was secondary to analysis of the data in the rolls. More recently, though, scholars have started once again to look at the court roll from the perspective adopted by Maitland in his Select Pleas in Manorial and Other Seigniorial Courts. These historians are concerned with defining and characterizing “customary law”: that is, with the nature and principles of the law applied in manor courts; the extent to which those principles were malleable or unchanging; the relationship between the rulings pronounced in the manor courts and those recorded in other areas of the legal system, most importantly the common law courts; and the machinery of manor courts with respect to procedures, personnel, and record keeping.

Two months after a mob in Alton, Illinois, killed abolitionist editor Elijah Lovejoy and destroyed his fourth press, a jury acquitted several assailants accused of rioting. By the time that the trials commenced in January 1838, the defenses had all been publicly aired; indeed, they had been rehearsed in print and at well-attended meetings long before the attack occurred. The mob's leaders had taken special care over several months to lay a legal foundation for their action; most notably, the Illinois attorney general led the pre-attack rhetorical justification and the post-attack courtroom defense. In the end, the jury found that resorting to forcible measures in such circumstances did not clearly fall outside the law.

James Somerset was taken from Africa as a slave to the Americas in 1749. He was sold in Virginia to Charles Steuart, a Scottish merchant and slave trader in Norfolk who served after 1765 as a high-ranking British customs official. In 1769, Steuart took Somerset with him to England. After two years in England, Somerset escaped from Steuart, but was recaptured. Steuart decided to sell Somerset back into slavery in Jamaica, and, in late November 1771, Somerset was bound in chains on a ship on the Thames, the Ann and Mary, awaiting shipment.

George Van Cleve places Somerset's Case squarely in the middle of Britain's imperial history. It belongs there. After clarifying the “narrow” holding in the case—that Charles Stewart could not forcibly remove James Somerset from England—Van Cleve argues that Chief Justice Mansfield and his Court of King's Bench “creat[ed] a new legal framework for slavery” and “did so quite knowingly at the price of undercutting the legal, economic and moral basis of slavery as an institution throughout the Atlantic Empire.” This argument that Somerset's Case transformed slavery law throughout the British Empire rests on three claims. First, Van Cleve views Somerset's Case as an imperial conflict of laws case because it involved a conflict between the laws of two royal territories, England and Virginia. Second, Van Cleve contends that Mansfield intended the decision and his remarks accompanying it about the positive law foundation of slavery to have abolitionist effects. Finally, these two points are related: Mansfield drew a distinction “between English and colonial law on slavery” in order to undermine slavery across the empire.

One might have thought that after nearly 250 years there would be nothing left to discuss about what Lord Mansfield did or did not intend to say when he delivered his ruling in Steuart v. Somerset. Yet, as Van Cleve's essay shows us, Mansfield's words continue to provide fertile ground for scholarly investigation. Sadly, this is almost certainly because Somerset continues to resonate in contemporary American society for reasons that are as much about perceptions of racism and black heritage as about the plight of Somerset himself.

As Daniel Hulsebosch and Ruth Paley show in their perceptive and helpful comments, Somerset's Case raises questions about several dimensions of the nature of British imperial slavery. As to those dimensions, we share considerable common ground. I agree with Paley that racism was an important element in the treatment of black slaves in England and in its colonies. Hulsebosch is correct that in the late eighteenth century protecting liberty in England by keeping England free from slavery could co-exist with the willingness or desire to maintain colonial slavery. However, as discussed below, the significance of the Somerset decision goes beyond racism and metropolitan protection.