“From procedural law to the ‘rights of humanity’: Habeas corpus, Ex parte Somerset (1771-72), and the movement toward collective representation in early British antislavery cases” (Book Section)
Title: “From procedural law to the ‘rights of humanity’: Habeas corpus, Ex parte Somerset (1771-72), and the movement toward collective representation in early British antislavery cases”
Author: Sarah Winter
Editor: Edward Cavanagh
Abstract: This chapter traces the development of early British abolitionist proceduralism in contestation against colonial slave laws by studying legal cases pursued by Granville Sharp and abolitionist lawyers between 1767 and 1774 involving fugitive slaves in England who had been recaptured by their enslavers, including the famous Ex parte Somerset decision of 1772. Pursuing charges of assault against the kidnappers, lawyers also frequently had recourse to the legal process of the writ of habeas corpus ad subjiciendum et recipiendum, which enabled courts to adjudicate the legality of an individual’s detention and to free those unlawfully detained. While historians of law and the British empire have frequently viewed the verdict in Somerset as, at best, confirming English law’s ignorance of slavery, such emphasis on legal exceptionalism does not reveal the generalizing remedial capacities of the ruling in an imperial context. Drawing upon Paul D. Halliday’s demonstration of the strong remedial and imperial jurisdiction of King’s Bench in the eighteenth century, the chapter shows how the entitlement of the slave’s vulnerable human body to protection by the common law emerged through abolitionist proceduralism, which framed habeas corpus as a representative legal action. These cases promulgated new definitions of collective ‘rights of humanity’ that would not be restricted to slavery alone, but could apply to violated rights of all oppressed persons across the Empire. Concluding with an analysis of two contemporaneous cases where representative habeas corpus actions failed in respect to a deported slave and insolvent debtors, the chapter reveals that collective ‘rights of humanity’ based in the natural rights of the individual to personal liberty and bodily integrity could only come into question indirectly in the legal arena when the habeas corpus procedure itself was functioning correctly within a powerful imperial jurisdiction.
Year: 2020
Primary URL: https://brill.com/view/title/57059#:~:text=Emphatic%20of%20the%20importance%20of,the%20development%20of%20legal%20thought.&text=It%20withstands%20the%20rise%20and,the%20place%20of%20the%20old.
Secondary URL: https://doi.org/10.1163/9789004431249
Access Model: book and electronic publication
Publisher: Brill
Book Title: Empire and Legal Thought: Ideas and Institutions from Antiquity to Modernity
ISBN: 978-90-04-4309

“Remedial Fictions: The Novelization of Habeas Corpus and the History of Human Rights” (Book Section)
Title: “Remedial Fictions: The Novelization of Habeas Corpus and the History of Human Rights”
Author: Sarah Winter
Editor: Hans Lind
Abstract: What kind of cultural and political leverage can legal fictions or personifications exert when they appear in fictional narratives? Perhaps no form of legal personhood has played a greater role in political crises than the “corpus” summoned by the writ of habeas corpus. This chapter examines how the habeas corpus judicial process produces a particular sort of legal personification, the corpus, combining an individual human body with a form of legal personhood. Focusing on the famous Ex parte Somerset decision of 1772 in juxtaposition to William Godwin’s novel Caleb Williams (1794), it shows that a remedial judicial process such as habeas corpus— - and its fictionalization by novelists— - provides a new vantage on the history of human rights, particularly in respect to the protection of dissidents, the enslaved, or the disenfranchised from private or governmental coercion.
Year: 2020
Primary URL: https://doi.org/10.4324/9780429468414
Secondary URL: htthttps://www.taylorfrancis.com/books/fictional-discourse-law-hans-lind/e/10.4324/9780429468414
Access Model: print and e-publication
Publisher: Routledge
Book Title: Fictional Discourse and the Law
ISBN: 978-1138604759

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