Slavery at common law
Encyclopedia
Slavery at common law in former colonies of the British Empire
, developed slowly over centuries, characterised by inconsistent decisions and varying rationales for the treatment of slavery
, the slave trade, and the rights of slaves and slave owners. Until 1807 there was virtually no legislative intervention in relation to slavery, and accordingly the common law
had something of a "free hand" to develop, untrammeled by the "paralysing hand of the Parliamentary draftsmen".
Some groups assert slavery was not recognised as lawful, often on the basis of pronouncements such as those attributed to Lord Mansfield
, that "the air of England is too pure for any slave to breathe."
of 1215 recognise that all persons had a basic right to liberty, and it was recognised before that date that persons had a basic right not to be the subject of assaults by others. Accordingly, it has been subsequently argued (most famously by Granville Sharp
in Somersett's Case
) that as slavery usually involved one or both of these things, it would only be lawful if there was positive legal impetus
for its legality. However, this analysis does not square particularly well with the law of the time as a whole; serfdom, and later villeiny, involved both a loss of freedom and in certain circumstances the law permitted physical chastisement of serfs, villeins and even indentured apprentices.
In 1102 the Council of Westminster
held in London issued a decree: "Let no one hereafter presume to engage in that nefarious trade in which hitherto in England men were usually sold like brute animals." The legislative force of this decree is not certain; it was intended to abolish the trading of serfs
in London, but the decree is sometimes cited as authority for the proposition that trading in slaves became illegal in England at that date. Even if that is correct (which is open to question, subsequent cases distinguishing between villeiny (although not serfdom) and slavery), it is clear that the law was not expressed to abrogate the status of either serfs generally, or slaves who were brought to England from abroad. There are also reports relating to Irish decree in 1171 "that all the English slaves in the whole of Ireland, be immediately emancipated and restored to their former liberty." The same source indicates that slavery in England was abolished by a general charter of emancipation in 1381.http://www.fullbooks.com/The-Anti-Slavery-Examiner-Part-2-of-41.html Other historical sources for such an emancipation proclamation appear thin, although the date would coincide with the Peasants' Revolt
, after which a number of concessions were made by the 14 year old King Richard II
, which were later rescinded. Certainly villeinage continued in England, slowly decaying, until the last villein died in the early 17th century.
In later common law cases, none of the foregoing decrees or proclamations were cited or referred to as binding law in relation to the status of slaves generally.
, unless a defence could be mounted. Cartwright averred that the man was a slave whom he had brought to England from Russia, and thus such chastisement was not unlawful. Although such reports of the case as exist are limited, it is reported that the court held that the man must be freed, and it is often said that the court held "that England was too pure an air for a slave to breathe in."
Subsequent citations of the effect of the case was actually to impose limits on the physical punishment on slaves, rather than to express comment on legality of slavery generally. In the case of John Lilburne in 1649, the defendant's counsel relied upon Cartwright's case to show that the severity of a whipping received by Lilburne exceeded that permitted by law. In none of subsequent common law cases prior to Somersett's case was Cartwright's case cited as authority for the proposition that slavery was unlawful. However, those disputes predominantly concerned disputes between slave merchants (the notable exception being Shanley v Harvey, as to which see below), for whom it would have been commercially unwise to plead
that slavery was unlawful.
It is inferred that because he was from Russia
Cartwright's slave was white, and probably a Christian, although this is not recorded. However, it is not impossible that he was African, as although they were uncommon, African slaves in Russia
were not unknown prior to the emergence of the Atlantic slave trade
.
and cotton
plantations in British colonies abroad. English merchants were prominent in the slave trade at this time, and in commercial disputes slavery soon presented the English courts with novel legal questions. Under the lex mercatoria slaves were treated as chattels, with few if any rights, but the English courts did not always recognise mercantile custom as law. The question arose in English courts because personal actions could be laid in England even if the cause of action arose abroad.
would lie for negroes, as if they were chattels, but this was reasoned on the grounds that they were infidels rather than slaves, and lacked the rights enjoyed by Christians; (reasoning which would later find echoes in the U.S. case of Dred Scott v. Sandford
60 U.S. (19 How.) 393 (1857)) but Judge Holt
was to later reject this analysis, and also denied the possibility of bringing an assumpsit
on the sale of a negro in England: "as soon as a negro comes to England he is free; one may be a villein in England, but not a slave." However, this comment was construed as more of an admonition against careless pleading
rather than a reproach to slave dealers. The plaintiff was felt to have simply overdone the fictions, and was allowed to amend his declaration to allege the sale of a slave in Virginia
, where slavery was recognised by law, and the English courts would recognise and enforce the rights arising under Virginian law. Slaves were regularly bought and sold on the Liverpool
and London
markets, and actions on contract concerning slaves were common in the 18th century without any serious suggestion that they were void
for illegality. Even the statement made in the various trover decisions appear to have been directed to good pleading rather than the legality of slavery: a pleading which averred the conversion of a "negro" rather than a "slave" would fail, as there was no inherent reason why a negro should not be a free man. In 1706 Chief Justice Holt refused an action for trover in relation to a slave holding that no man could have property in another, but held that an alternative action, trespass quare captivum suum cepit, would be available, which was actually felt to have strengthened the legal position of slaveowners.
Ultimately the comments made in Holt's decisions had little long term effect. In 1700 there was no extensive use of slave labour in England as there was in the colonies. Negro servants were common as status symbols, but their treatment was not comparable to that of plantation slaves in the colonies. The legal problems that were most likely to arise in England were if a slave were to escape in transit, or if a slave-owner from the colonies brought over a slave and expected to continue exercising his power to prevent the slave from leaving his service. Increasing numbers of slaves were indeed brought into England in the 18th century, and this may help to explain the growing awareness of the problems presented by the existence of slavery. Quite apart from the moral considerations, there was an obvious conflict between the mercantile custom of recognizing property in slaves and the English tradition of freedom protected by habeas corpus
. If the courts acknowledged the property which was generally assumed to exist in slaves in the colonies, how would such property rights be treated if a slave was subsequently brought to England?
. The law officers opined that under English law (i) a slave's status did not change when he came to England, (ii) a slave could be compelled to return to the colonies from England, and (iii) that baptism would not manumit a slave. The opinion cited no authorities, and set out no legal rationale for the views expressed in it, but it was widely published and relied upon. One of the authors of the opinion, Lord Hardwicke
(although at the time he was only known as Philip Yorke), subsequently endorsed the views expressed in the opinion (although not expressly referring to it) whilst sitting in judicial capacity in Pearne v Lisle (1749) Amb 75, 27 ER 47. The case revolved around title to fourteen slaves who were in Antigua
, and involved a number of technical points as to colonial law. But Lord Hardwicke held that slavery was not contrary to English law, and that as the common law of England applied at the time to Antigua, that slavery was not unlawful in Antigua.
At this time the cases in which the English courts had recognised property in slaves had arisen from purely commercial disputes and did not establish any rights exercisable as against the slaves themselves, if the slave was within the jurisdiction. As with villeins centuries before, the analogy with chattels (as between putative owners) failed to answer the leading question whether slaves could establish their freedom by bringing suit in the courts (as between slave and owner). The writ de homine replegiando was outmoded, and so the usual eighteenth-century question was whether habeas corpus lay to free slaves from captivity. Sir William Blackstone
was in no doubt that "the spirit of liberty is so deeply ingrained in our constitution" that a slave, the moment he lands in England, is free. Other prominent lawyers, such as Lord Hardwicke and Lord Mansfield
, felt that it was better to recognise slavery, and to impose regulation on the slave trade rather than to withdraw from it, since less enlightened nations would reap the benefits of abolition and slaves would suffer the consequences. The "infidel" argument for maintaining African slaves as chattels was abandoned in the middle of the 18th century, since by then many slaves had been converted to Christianity
without gaining de facto freedom; and legal justifications for slave ownership were now sought by analogy with the old law of villeinage.
of the estate of his deceased niece.
Shanley had brought Harvey as a child slave, to England, 12 years earlier and had given him to his niece. She had him baptised
and had changed his name. She became very ill and about an hour before her death, she gave Harvey about £800 in cash (a substantial sum in those days), asked him to pay the butcher's bill and to make good use of the money. After her death, Shanley brought an action against Harvey to recover the money.
Lord Henley
, the Lord Chancellor, dismissed the action, with costs against Shanley. In his judgment he held that as soon as a person set foot on English soil, he or she became free and that a "negro" might maintain an action against his or her master for ill usage, together with an application for habeas corpus
if detained. However, such comments were not necessary for the decision in the case, and in law were only obiter dictum
and not binding on subsequent courts.
Lord Mansfield had the opportunity to use a legal procedure at the time in criminal cases referred to as the Twelve Judges to determine points of law (which were not for the jury
) in criminal matters. However, he shied away from doing so, and sought (unsuccessfully) to dissuade the parties from using the legality of slavery as the basis of the defence.
In the end Mansfield directed the jury that they should presume Lewis was a free man, unless Stapylton was able to prove otherwise. He further directed the jury that unless they found that Stapylton was the legal owner of Lewis "you will find the Defendant guilty". Interestingly, Lewis was permitted to testify. The jury convicted. However, in the course of his summing up, Lord Mansfield was careful to say "whether they [slave owners] have this kind of property or not in England has never been solemnly determined."
had been issued to secure the release of James Somersett, a negro confined in irons on board a ship arrived in the Thames from Virginia, bound for Jamaica, and the return stated that he was a slave under the law of Virginia. Lord Mansfield was anxious to avoid the issue principle, and pressed the parties to settle; but the case was taken up by the West India merchants, who wanted to know whether slaves were a safe investment, and by abolitionists such as Granville Sharp
, so that it became a cause célèbre. The law of villeinage was turned by Somersett's counsel into an argument against slavery, since the kind of proof that was required to establish villein status was not available in claiming slaves. After arguments closed it still took Lord Mansfield 3 agonising months before he delivered his judgment, which in the end, was short and delivered orally only. In the event the court ordered in 1772 that "the black must be discharged". But Lord Mansfield, while stating that slavery was "odious", did not decide that slavery was unlawful, nor even that Somersett was no longer a slave, confining himself to the narrow point that a slave could not be made to leave England against his will. The decision also left aside the problem in the conflict of laws
; if a person was a slave by law of his domicile
, which was not disputed in the case of Somersett, a mere temporary presence in England would not set him free permanently, even for the purpose of English law. Several contract cases concerning overseas slaves in fact came before Lord Mansfield, and counsel did not even think it worth arguing that the contracts were illegal or contrary to public policy.
, Joseph Knight, sought the freedom to leave John Wedderburn of Ballindean's employment and claimed in his pleadings that the very act of landing in Scotland freed him from perpetual servitude, as slavery was not recognised in Scotland (records do not now record whether this was on the basis of the Mansfield decision). Many years earlier Knight had been purchased by Wedderburn in Jamaica from a slave trader, although his status at the time of the trial was the subject of disagreement (Knight averred that Wedderburn wished to take him back to Jamaica to sell him on as a slave in the colonies, which Wedderburn denied).
The case caused disagreement in the courts as Wedderburn, referred to through the document as "The Complainer", insisted that slavery and perpetual servitude were different states. He argued that in Scots law Knight, even though he was not recognised as a slave, was still bound to provide perpetual service in the same manner as an indentured servant
or an apprenticed artisan
. The Justices of the Peace in Perth, at first instance, found in favour of Wedderburn. However, when Knight then appealed to the Sheriff Deputy the first instance decision was then overturned. Wedderburn then made a further appeal to the Lords of Council and Session
. The Court of Session emphatically rejected Wedderburn's appeal, ruling that "the dominion assumed over this Negro, under the law of Jamaica, being unjust, could not be supported in this country to any extent: That, therefore, the defender had no right to the Negro’s service for any space of time, nor to send him out of the country against his consent: That the Negro was likewise protected under the act 1701, c.6. from being sent out of the country against his consent."
Evidence presented by both sides in the case survives in the National Archives of Scotland (reference CS235/K/2/2).http://www.nas.gov.uk/about/071022.asp
of a slave. As part of his defence, Hodge argued that "A Negro being property, it was no greater offense for his master to kill him than it would be to kill his dog," but the court did not accept the submission, and point was dismissed summarily.http://memory.loc.gov/cgi-bin/ampage?collId=llst&fileName=064/llst064.db&recNum=183&itemLink=r%3Fammem%2Fllst%3A%40field%28DOCID%2B%40lit%28llst064div1%29%29%3A%230640004&linkText=1 Counsel for the prosecution also obliquely referred to the Amelioration Act 1798
passed by the Legislature of the Leeward Islands
, which applied in the British Virgin Islands
. That Act provided for penalties for slave owners who inflicted cruel or unusual punishments on their slaves, but it only provides for fines, and does not expressly indicate that a slave owner could be guilty of a greater crime such as murder or another offence against the person
.
The trial took place under English common law in British Virgin Islands
, however, there was no appeal (Hodge was executed a mere eight days after the jury
handed down their verdict - the jury (composed largely of slave owners) actually recommended mercy, but the court nonetheless sentenced Hodge to death) and so the directions of the trial judge are not treated by commentators as an authoritative precedent
.
voted in favour of "gradual" abolition, and in 1807 parliament outlawed the African slave trade by legislation. This prevented British merchants exporting any more people from Africa, but it did not alter the status of the several million existing slaves, and the courts continued to recognise colonial slavery. The abolitionists therefore turned their attention to the emancipation of West Indian slaves. Legally, this was difficult to achieve, since it required the compulsory divesting of private property; but it was finally done in 1833, at a cost of £20 million paid from public funds in compensation to slave owners. From 1 August 1834 all slaves in the British colonies were "absolutely and forever manumitted."
In the American colonies it was widely assumed that positive law was needed to make slavery lawful, and various states passed laws to this effect.
British Empire
The British Empire comprised the dominions, colonies, protectorates, mandates and other territories ruled or administered by the United Kingdom. It originated with the overseas colonies and trading posts established by England in the late 16th and early 17th centuries. At its height, it was the...
, developed slowly over centuries, characterised by inconsistent decisions and varying rationales for the treatment of slavery
Slavery
Slavery is a system under which people are treated as property to be bought and sold, and are forced to work. Slaves can be held against their will from the time of their capture, purchase or birth, and deprived of the right to leave, to refuse to work, or to demand compensation...
, the slave trade, and the rights of slaves and slave owners. Until 1807 there was virtually no legislative intervention in relation to slavery, and accordingly the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
had something of a "free hand" to develop, untrammeled by the "paralysing hand of the Parliamentary draftsmen".
Some groups assert slavery was not recognised as lawful, often on the basis of pronouncements such as those attributed to Lord Mansfield
William Murray, 1st Earl of Mansfield
William Murray, 1st Earl of Mansfield, SL, PC was a British barrister, politician and judge noted for his reform of English law. Born to Scottish nobility, he was educated in Perth, Scotland before moving to London at the age of 13 to take up a place at Westminster School...
, that "the air of England is too pure for any slave to breathe."
Early common law
For most of the early common law history, the courts were not called upon to consider the position in relation to slavery. However, the law did, from at least the time of the Magna CartaMagna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
of 1215 recognise that all persons had a basic right to liberty, and it was recognised before that date that persons had a basic right not to be the subject of assaults by others. Accordingly, it has been subsequently argued (most famously by Granville Sharp
Granville Sharp
Granville Sharp was one of the first English campaigners for the abolition of the slave trade. He also involved himself in trying to correct other social injustices. Sharp formulated the plan to settle blacks in Sierra Leone, and founded the St. George's Bay Company, a forerunner of the Sierra...
in Somersett's Case
Somersett's Case
R v Knowles, ex parte Somersett 20 State Tr 1 is a famous judgment of the English Court of King's Bench in 1772 which held that slavery was unsupported by law in England and Wales...
) that as slavery usually involved one or both of these things, it would only be lawful if there was positive legal impetus
Positivism
Positivism is a a view of scientific methods and a philosophical approach, theory, or system based on the view that, in the social as well as natural sciences, sensory experiences and their logical and mathematical treatment are together the exclusive source of all worthwhile information....
for its legality. However, this analysis does not square particularly well with the law of the time as a whole; serfdom, and later villeiny, involved both a loss of freedom and in certain circumstances the law permitted physical chastisement of serfs, villeins and even indentured apprentices.
In 1102 the Council of Westminster
Synods of Westminster
Synods of Westminster. Under this heading are included certain of the more important ecclesiastical councils held within the present bounds of London. Though the precise locality is occasionally uncertain, the majority of the medieval synods assembled in the chapter-house of old St Pauls, or the...
held in London issued a decree: "Let no one hereafter presume to engage in that nefarious trade in which hitherto in England men were usually sold like brute animals." The legislative force of this decree is not certain; it was intended to abolish the trading of serfs
Serfdom
Serfdom is the status of peasants under feudalism, specifically relating to Manorialism. It was a condition of bondage or modified slavery which developed primarily during the High Middle Ages in Europe and lasted to the mid-19th century...
in London, but the decree is sometimes cited as authority for the proposition that trading in slaves became illegal in England at that date. Even if that is correct (which is open to question, subsequent cases distinguishing between villeiny (although not serfdom) and slavery), it is clear that the law was not expressed to abrogate the status of either serfs generally, or slaves who were brought to England from abroad. There are also reports relating to Irish decree in 1171 "that all the English slaves in the whole of Ireland, be immediately emancipated and restored to their former liberty." The same source indicates that slavery in England was abolished by a general charter of emancipation in 1381.http://www.fullbooks.com/The-Anti-Slavery-Examiner-Part-2-of-41.html Other historical sources for such an emancipation proclamation appear thin, although the date would coincide with the Peasants' Revolt
Peasants' Revolt
The Peasants' Revolt, Wat Tyler's Rebellion, or the Great Rising of 1381 was one of a number of popular revolts in late medieval Europe and is a major event in the history of England. Tyler's Rebellion was not only the most extreme and widespread insurrection in English history but also the...
, after which a number of concessions were made by the 14 year old King Richard II
Richard II of England
Richard II was King of England, a member of the House of Plantagenet and the last of its main-line kings. He ruled from 1377 until he was deposed in 1399. Richard was a son of Edward, the Black Prince, and was born during the reign of his grandfather, Edward III...
, which were later rescinded. Certainly villeinage continued in England, slowly decaying, until the last villein died in the early 17th century.
In later common law cases, none of the foregoing decrees or proclamations were cited or referred to as binding law in relation to the status of slaves generally.
Cartwright's case
In 1569 a man, Cartwright, was observed savagely beating another, which in law would have amounted to a batteryBattery (tort)
At common law, battery is the tort of intentionally and voluntarily bringing about an unconsented harmful or offensive contact with a person or to something closely associated with them . Unlike assault, battery involves an actual contact...
, unless a defence could be mounted. Cartwright averred that the man was a slave whom he had brought to England from Russia, and thus such chastisement was not unlawful. Although such reports of the case as exist are limited, it is reported that the court held that the man must be freed, and it is often said that the court held "that England was too pure an air for a slave to breathe in."
Subsequent citations of the effect of the case was actually to impose limits on the physical punishment on slaves, rather than to express comment on legality of slavery generally. In the case of John Lilburne in 1649, the defendant's counsel relied upon Cartwright's case to show that the severity of a whipping received by Lilburne exceeded that permitted by law. In none of subsequent common law cases prior to Somersett's case was Cartwright's case cited as authority for the proposition that slavery was unlawful. However, those disputes predominantly concerned disputes between slave merchants (the notable exception being Shanley v Harvey, as to which see below), for whom it would have been commercially unwise to plead
Pleading
In law as practiced in countries that follow the English models, a pleading is a formal written statement filed with a court by parties in a civil action, other than a motion...
that slavery was unlawful.
It is inferred that because he was from Russia
Russia
Russia or , officially known as both Russia and the Russian Federation , is a country in northern Eurasia. It is a federal semi-presidential republic, comprising 83 federal subjects...
Cartwright's slave was white, and probably a Christian, although this is not recorded. However, it is not impossible that he was African, as although they were uncommon, African slaves in Russia
Abram Petrovich Gannibal
Major-General Abram Petrovich Gannibal, also Hannibal or Ganibal or Ibrahim Hannibal or Abram Petrov , was brought to Russia as a gift for Peter the Great and became major-general, military engineer, governor of Reval and nobleman of the Russian Empire...
were not unknown prior to the emergence of the Atlantic slave trade
Atlantic slave trade
The Atlantic slave trade, also known as the trans-atlantic slave trade, refers to the trade in slaves that took place across the Atlantic ocean from the sixteenth through to the nineteenth centuries...
.
African slave trade and the common law
However, the initial opposition of the courts of England to the status of slavery began to change with the rising importance of the African slave trade. An extensive traffic in negro slaves from Africa began in the 17th century, primarily to supply labour for the sugarSugar
Sugar is a class of edible crystalline carbohydrates, mainly sucrose, lactose, and fructose, characterized by a sweet flavor.Sucrose in its refined form primarily comes from sugar cane and sugar beet...
and cotton
Cotton
Cotton is a soft, fluffy staple fiber that grows in a boll, or protective capsule, around the seeds of cotton plants of the genus Gossypium. The fiber is almost pure cellulose. The botanical purpose of cotton fiber is to aid in seed dispersal....
plantations in British colonies abroad. English merchants were prominent in the slave trade at this time, and in commercial disputes slavery soon presented the English courts with novel legal questions. Under the lex mercatoria slaves were treated as chattels, with few if any rights, but the English courts did not always recognise mercantile custom as law. The question arose in English courts because personal actions could be laid in England even if the cause of action arose abroad.
The "infidel" rationale
Initially, the courts held that an action for troverTrover
Trover is a form of lawsuit in common-law countries for recovery of damages for wrongful taking of personal property. Trover belongs to a series of remedies for such wrongful taking, its distinctive feature being recovery only for the value of whatever was taken, not for the recovery of the...
would lie for negroes, as if they were chattels, but this was reasoned on the grounds that they were infidels rather than slaves, and lacked the rights enjoyed by Christians; (reasoning which would later find echoes in the U.S. case of Dred Scott v. Sandford
Dred Scott v. Sandford
Dred Scott v. Sandford, , also known as the Dred Scott Decision, was a ruling by the U.S. Supreme Court that people of African descent brought into the United States and held as slaves were not protected by the Constitution and could never be U.S...
60 U.S. (19 How.) 393 (1857)) but Judge Holt
John Holt (judge)
Sir John Holt was an English lawyer and served as Lord Chief Justice of England from 17 April 1689 to his death.-Biography:...
was to later reject this analysis, and also denied the possibility of bringing an assumpsit
Assumpsit
Assumpsit is a form of action at common law for the recovery of damages caused by the breach or non-performance of a simple contract, either express or implied, and whether made orally or in writing....
on the sale of a negro in England: "as soon as a negro comes to England he is free; one may be a villein in England, but not a slave." However, this comment was construed as more of an admonition against careless pleading
Pleading
In law as practiced in countries that follow the English models, a pleading is a formal written statement filed with a court by parties in a civil action, other than a motion...
rather than a reproach to slave dealers. The plaintiff was felt to have simply overdone the fictions, and was allowed to amend his declaration to allege the sale of a slave in Virginia
Virginia
The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
, where slavery was recognised by law, and the English courts would recognise and enforce the rights arising under Virginian law. Slaves were regularly bought and sold on the Liverpool
Liverpool
Liverpool is a city and metropolitan borough of Merseyside, England, along the eastern side of the Mersey Estuary. It was founded as a borough in 1207 and was granted city status in 1880...
and London
London
London is the capital city of :England and the :United Kingdom, the largest metropolitan area in the United Kingdom, and the largest urban zone in the European Union by most measures. Located on the River Thames, London has been a major settlement for two millennia, its history going back to its...
markets, and actions on contract concerning slaves were common in the 18th century without any serious suggestion that they were void
Void (law)
In law, void means of no legal effect. An action, document or transaction which is void is of no legal effect whatsoever: an absolute nullity - the law treats it as if it had never existed or happened....
for illegality. Even the statement made in the various trover decisions appear to have been directed to good pleading rather than the legality of slavery: a pleading which averred the conversion of a "negro" rather than a "slave" would fail, as there was no inherent reason why a negro should not be a free man. In 1706 Chief Justice Holt refused an action for trover in relation to a slave holding that no man could have property in another, but held that an alternative action, trespass quare captivum suum cepit, would be available, which was actually felt to have strengthened the legal position of slaveowners.
Ultimately the comments made in Holt's decisions had little long term effect. In 1700 there was no extensive use of slave labour in England as there was in the colonies. Negro servants were common as status symbols, but their treatment was not comparable to that of plantation slaves in the colonies. The legal problems that were most likely to arise in England were if a slave were to escape in transit, or if a slave-owner from the colonies brought over a slave and expected to continue exercising his power to prevent the slave from leaving his service. Increasing numbers of slaves were indeed brought into England in the 18th century, and this may help to explain the growing awareness of the problems presented by the existence of slavery. Quite apart from the moral considerations, there was an obvious conflict between the mercantile custom of recognizing property in slaves and the English tradition of freedom protected by habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
. If the courts acknowledged the property which was generally assumed to exist in slaves in the colonies, how would such property rights be treated if a slave was subsequently brought to England?
The Yorke–Talbot slavery opinion
However, the decisions of Holt had caused sufficient consternation as to the legal status of slaves that some slave owners sought clarity of the law. In 1729 various slave owners obtained the Yorke–Talbot slavery opinion made by the Crown's principal law officers at one of the Inns of CourtInns of Court
The Inns of Court in London are the professional associations for barristers in England and Wales. All such barristers must belong to one such association. They have supervisory and disciplinary functions over their members. The Inns also provide libraries, dining facilities and professional...
. The law officers opined that under English law (i) a slave's status did not change when he came to England, (ii) a slave could be compelled to return to the colonies from England, and (iii) that baptism would not manumit a slave. The opinion cited no authorities, and set out no legal rationale for the views expressed in it, but it was widely published and relied upon. One of the authors of the opinion, Lord Hardwicke
Philip Yorke, 1st Earl of Hardwicke
Philip Yorke, 1st Earl of Hardwicke PC was an English lawyer and politician who served as Lord Chancellor. He was a close confidant of the Duke of Newcastle, Prime Minister between 1754 and 1756 and 1757 until 1762....
(although at the time he was only known as Philip Yorke), subsequently endorsed the views expressed in the opinion (although not expressly referring to it) whilst sitting in judicial capacity in Pearne v Lisle (1749) Amb 75, 27 ER 47. The case revolved around title to fourteen slaves who were in Antigua
Antigua
Antigua , also known as Waladli, is an island in the West Indies, in the Leeward Islands in the Caribbean region, the main island of the country of Antigua and Barbuda. Antigua means "ancient" in Spanish and was named by Christopher Columbus after an icon in Seville Cathedral, Santa Maria de la...
, and involved a number of technical points as to colonial law. But Lord Hardwicke held that slavery was not contrary to English law, and that as the common law of England applied at the time to Antigua, that slavery was not unlawful in Antigua.
At this time the cases in which the English courts had recognised property in slaves had arisen from purely commercial disputes and did not establish any rights exercisable as against the slaves themselves, if the slave was within the jurisdiction. As with villeins centuries before, the analogy with chattels (as between putative owners) failed to answer the leading question whether slaves could establish their freedom by bringing suit in the courts (as between slave and owner). The writ de homine replegiando was outmoded, and so the usual eighteenth-century question was whether habeas corpus lay to free slaves from captivity. Sir William Blackstone
William Blackstone
Sir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...
was in no doubt that "the spirit of liberty is so deeply ingrained in our constitution" that a slave, the moment he lands in England, is free. Other prominent lawyers, such as Lord Hardwicke and Lord Mansfield
William Murray, 1st Earl of Mansfield
William Murray, 1st Earl of Mansfield, SL, PC was a British barrister, politician and judge noted for his reform of English law. Born to Scottish nobility, he was educated in Perth, Scotland before moving to London at the age of 13 to take up a place at Westminster School...
, felt that it was better to recognise slavery, and to impose regulation on the slave trade rather than to withdraw from it, since less enlightened nations would reap the benefits of abolition and slaves would suffer the consequences. The "infidel" argument for maintaining African slaves as chattels was abandoned in the middle of the 18th century, since by then many slaves had been converted to Christianity
Christianity
Christianity is a monotheistic religion based on the life and teachings of Jesus as presented in canonical gospels and other New Testament writings...
without gaining de facto freedom; and legal justifications for slave ownership were now sought by analogy with the old law of villeinage.
Shanley v Harvey
In Shanley v Harvey (1763) 2 Eden 126, a claim was instituted by Shanley as administratorAdministrator (law)
In law an administrator can be:* a person appointed by the court to handle the estate of someone who died without a will ....
of the estate of his deceased niece.
Shanley had brought Harvey as a child slave, to England, 12 years earlier and had given him to his niece. She had him baptised
Baptism
In Christianity, baptism is for the majority the rite of admission , almost invariably with the use of water, into the Christian Church generally and also membership of a particular church tradition...
and had changed his name. She became very ill and about an hour before her death, she gave Harvey about £800 in cash (a substantial sum in those days), asked him to pay the butcher's bill and to make good use of the money. After her death, Shanley brought an action against Harvey to recover the money.
Lord Henley
Robert Henley, 1st Earl of Northington
Robert Henley, 1st Earl of Northington PC , was the Lord Chancellor of Great Britain. He was a member of the Whig Party in the parliament and was known for his wit and writing.-Family:...
, the Lord Chancellor, dismissed the action, with costs against Shanley. In his judgment he held that as soon as a person set foot on English soil, he or she became free and that a "negro" might maintain an action against his or her master for ill usage, together with an application for habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
if detained. However, such comments were not necessary for the decision in the case, and in law were only obiter dictum
Obiter dictum
Obiter dictum is Latin for a statement "said in passing". An obiter dictum is a remark or observation made by a judge that, although included in the body of the court's opinion, does not form a necessary part of the court's decision...
and not binding on subsequent courts.
R v Stapylton
One of the few non-commercial disputes relating to slavery arose in R v Stapylton (1771, unreported) in which Lord Mansfield sat. Stapylton was charged after attempting to forcibly deport his purported slave, Thomas Lewis. Stapylton's defence rested on the basis that as Lewis was his slave, his actions were lawful.Lord Mansfield had the opportunity to use a legal procedure at the time in criminal cases referred to as the Twelve Judges to determine points of law (which were not for the jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
) in criminal matters. However, he shied away from doing so, and sought (unsuccessfully) to dissuade the parties from using the legality of slavery as the basis of the defence.
In the end Mansfield directed the jury that they should presume Lewis was a free man, unless Stapylton was able to prove otherwise. He further directed the jury that unless they found that Stapylton was the legal owner of Lewis "you will find the Defendant guilty". Interestingly, Lewis was permitted to testify. The jury convicted. However, in the course of his summing up, Lord Mansfield was careful to say "whether they [slave owners] have this kind of property or not in England has never been solemnly determined."
James Somersett's case
The question of a slave's rights as against his putative master (as opposed to merchant's rights as against each other) eventually came before Lord Mansfield and the King's Bench in 1771. A writ of habeas corpusHabeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
had been issued to secure the release of James Somersett, a negro confined in irons on board a ship arrived in the Thames from Virginia, bound for Jamaica, and the return stated that he was a slave under the law of Virginia. Lord Mansfield was anxious to avoid the issue principle, and pressed the parties to settle; but the case was taken up by the West India merchants, who wanted to know whether slaves were a safe investment, and by abolitionists such as Granville Sharp
Granville Sharp
Granville Sharp was one of the first English campaigners for the abolition of the slave trade. He also involved himself in trying to correct other social injustices. Sharp formulated the plan to settle blacks in Sierra Leone, and founded the St. George's Bay Company, a forerunner of the Sierra...
, so that it became a cause célèbre. The law of villeinage was turned by Somersett's counsel into an argument against slavery, since the kind of proof that was required to establish villein status was not available in claiming slaves. After arguments closed it still took Lord Mansfield 3 agonising months before he delivered his judgment, which in the end, was short and delivered orally only. In the event the court ordered in 1772 that "the black must be discharged". But Lord Mansfield, while stating that slavery was "odious", did not decide that slavery was unlawful, nor even that Somersett was no longer a slave, confining himself to the narrow point that a slave could not be made to leave England against his will. The decision also left aside the problem in the conflict of laws
Conflict of laws
Conflict of laws is a set of procedural rules that determines which legal system and which jurisdiction's applies to a given dispute...
; if a person was a slave by law of his domicile
Domicile
*In architecture, a general term for a place of residence or "permanent residence" in legal terms*Domicile , the zodiac sign over which a planet has rulership...
, which was not disputed in the case of Somersett, a mere temporary presence in England would not set him free permanently, even for the purpose of English law. Several contract cases concerning overseas slaves in fact came before Lord Mansfield, and counsel did not even think it worth arguing that the contracts were illegal or contrary to public policy.
Joseph Knight's case
Two years after the Mansfield decision in England, a servant in ScotlandScotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
, Joseph Knight, sought the freedom to leave John Wedderburn of Ballindean's employment and claimed in his pleadings that the very act of landing in Scotland freed him from perpetual servitude, as slavery was not recognised in Scotland (records do not now record whether this was on the basis of the Mansfield decision). Many years earlier Knight had been purchased by Wedderburn in Jamaica from a slave trader, although his status at the time of the trial was the subject of disagreement (Knight averred that Wedderburn wished to take him back to Jamaica to sell him on as a slave in the colonies, which Wedderburn denied).
The case caused disagreement in the courts as Wedderburn, referred to through the document as "The Complainer", insisted that slavery and perpetual servitude were different states. He argued that in Scots law Knight, even though he was not recognised as a slave, was still bound to provide perpetual service in the same manner as an indentured servant
Indentured servant
Indentured servitude refers to the historical practice of contracting to work for a fixed period of time, typically three to seven years, in exchange for transportation, food, clothing, lodging and other necessities during the term of indenture. Usually the father made the arrangements and signed...
or an apprenticed artisan
Apprenticeship
Apprenticeship is a system of training a new generation of practitioners of a skill. Apprentices or protégés build their careers from apprenticeships...
. The Justices of the Peace in Perth, at first instance, found in favour of Wedderburn. However, when Knight then appealed to the Sheriff Deputy the first instance decision was then overturned. Wedderburn then made a further appeal to the Lords of Council and Session
Court of Session
The Court of Session is the supreme civil court of Scotland, and constitutes part of the College of Justice. It sits in Parliament House in Edinburgh and is both a court of first instance and a court of appeal....
. The Court of Session emphatically rejected Wedderburn's appeal, ruling that "the dominion assumed over this Negro, under the law of Jamaica, being unjust, could not be supported in this country to any extent: That, therefore, the defender had no right to the Negro’s service for any space of time, nor to send him out of the country against his consent: That the Negro was likewise protected under the act 1701, c.6. from being sent out of the country against his consent."
Evidence presented by both sides in the case survives in the National Archives of Scotland (reference CS235/K/2/2).http://www.nas.gov.uk/about/071022.asp
R v Hodge
In 1811, Arthur Hodge became the first (and only) British subject ever to stand trial for the murderMurder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
of a slave. As part of his defence, Hodge argued that "A Negro being property, it was no greater offense for his master to kill him than it would be to kill his dog," but the court did not accept the submission, and point was dismissed summarily.http://memory.loc.gov/cgi-bin/ampage?collId=llst&fileName=064/llst064.db&recNum=183&itemLink=r%3Fammem%2Fllst%3A%40field%28DOCID%2B%40lit%28llst064div1%29%29%3A%230640004&linkText=1 Counsel for the prosecution also obliquely referred to the Amelioration Act 1798
Amelioration Act 1798
The Amelioration Act 1798 was a statute passed by the Leeward Islands in relation to slaves in the British Caribbean colonies....
passed by the Legislature of the Leeward Islands
British Leeward Islands
The British Leeward Islands was a British colony existing between 1833 and 1960, and consisting of Antigua, Barbuda, the British Virgin Islands, Montserrat, Saint Kitts, Nevis, Anguilla and Dominica....
, which applied in the British Virgin Islands
British Virgin Islands
The Virgin Islands, often called the British Virgin Islands , is a British overseas territory and overseas territory of the European Union, located in the Caribbean to the east of Puerto Rico. The islands make up part of the Virgin Islands archipelago, the remaining islands constituting the U.S...
. That Act provided for penalties for slave owners who inflicted cruel or unusual punishments on their slaves, but it only provides for fines, and does not expressly indicate that a slave owner could be guilty of a greater crime such as murder or another offence against the person
Offence against the person
In criminal law, an offence against the person usually refers to a crime which is committed by direct physical harm or force being applied to another person.They are usually analysed by division into the following categories:*Fatal offences*Sexual offences...
.
The trial took place under English common law in British Virgin Islands
British Virgin Islands
The Virgin Islands, often called the British Virgin Islands , is a British overseas territory and overseas territory of the European Union, located in the Caribbean to the east of Puerto Rico. The islands make up part of the Virgin Islands archipelago, the remaining islands constituting the U.S...
, however, there was no appeal (Hodge was executed a mere eight days after the jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
handed down their verdict - the jury (composed largely of slave owners) actually recommended mercy, but the court nonetheless sentenced Hodge to death) and so the directions of the trial judge are not treated by commentators as an authoritative precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
.
Subsequent legislation
The common law, ultimately, would go no further. But the decision of 1772 in James Somersett's case was widely understood as freeing slaves in England, and whilst perhaps not entirely legally accurate, this perception was fuelled by the growing abolitionist movement, although this was scarcely an accurate reflection of the decision. Slavery did not, like villeinage, die naturally from adverse public opinion, because vested mercantile interests were too valuable. Nevertheless in 1792 the House of CommonsBritish House of Commons
The House of Commons is the lower house of the Parliament of the United Kingdom, which also comprises the Sovereign and the House of Lords . Both Commons and Lords meet in the Palace of Westminster. The Commons is a democratically elected body, consisting of 650 members , who are known as Members...
voted in favour of "gradual" abolition, and in 1807 parliament outlawed the African slave trade by legislation. This prevented British merchants exporting any more people from Africa, but it did not alter the status of the several million existing slaves, and the courts continued to recognise colonial slavery. The abolitionists therefore turned their attention to the emancipation of West Indian slaves. Legally, this was difficult to achieve, since it required the compulsory divesting of private property; but it was finally done in 1833, at a cost of £20 million paid from public funds in compensation to slave owners. From 1 August 1834 all slaves in the British colonies were "absolutely and forever manumitted."
In the American colonies it was widely assumed that positive law was needed to make slavery lawful, and various states passed laws to this effect.
See also
- Abolition of slaveryAbolitionismAbolitionism is a movement to end slavery.In western Europe and the Americas abolitionism was a movement to end the slave trade and set slaves free. At the behest of Dominican priest Bartolomé de las Casas who was shocked at the treatment of natives in the New World, Spain enacted the first...
- History of slaveryHistory of slaveryThe history of slavery covers slave systems in historical perspective in which one human being is legally the property of another, can be bought or sold, is not allowed to escape and must work for the owner without any choice involved...
- Joseph Knight (slave)
- Slavery Abolition Act 1833Slavery Abolition ActThe Slavery Abolition Act 1833 was an 1833 Act of the Parliament of the United Kingdom abolishing slavery throughout the British Empire...
- Slavery in the colonial United States
- Slave Trade Act 1807Slave Trade ActThe Slave Trade Act was an Act of Parliament of the United Kingdom passed on 25 March 1807, with the long title "An Act for the Abolition of the Slave Trade". The original act is in the Parliamentary Archives...
- Slavery in Britain and IrelandSlavery in Britain and IrelandSlavery in Britain and Ireland dated from before Roman occupation. Chattel slavery virtually disappeared after the Norman Conquest. It was finally abolished by the Slavery Abolition Act 1833...
- Somersett's caseSomersett's CaseR v Knowles, ex parte Somersett 20 State Tr 1 is a famous judgment of the English Court of King's Bench in 1772 which held that slavery was unsupported by law in England and Wales...