"That Sole and Despotic Dominion": Slaves, Wives, and Game in Blackstone's Commentaries

Abstract

IN THE LANDMARK SOMERSET CASE OF 1772, an archaic notion of inalienable property helped produce a popular rhetoric of inalienable liberty. While Lord Chief Justice Mansfield was popularly understood to have freed all the slaves in England through his ruling in this case, he himself repeatedly insisted that he had merely prohibited sending slaves abroad for sale. Behind this confusion lies the fact that to Mansfield and his court, James Somerset was neither an autonomous individual nor a piece of merchandise. Although these two alternatives may adequately describe the world of commercial relations, the common law traditionally offered a third option in a collection of persons who were also property, the objects of a personal dominion that did not involve commercial exchange. Mansfield drew on this tradition in trying to determine how far slavery was sanctioned by positive law in England. While Mansfield is famous for adapting common-law principles to accommodate newer commercial practices, his inability to control the meaning of his ruling in the Somerset case reflects some of the tensions implicit in England's transformation to a commercial society. By examining the encounter between the common law and West Indian slavery in Mansfield's court and in William Blackstone's influential Commentaries on the Laws of England (1765-69), we will explore the continuing and paradoxical importance of inalienable property, an idea of property defined by its very incompatibility with the marketplace, to an increasingly commercial society.