Slavery at common law
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."
Early common law
|By country or region|
|Opposition and resistance|
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 Carta 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. 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.
In 1569 a man, Cartwright, was observed savagely beating another, which in law would have amounted to a battery, 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.
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 black slaves from Africa began in the 17th century, primarily to supply labour for the sugar 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.
The "infidel" rationale
Initially, the courts held that an action for trover would lie for blacks, 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 black person 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. African 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 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 Court. 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.
Shanley v Harvey
In Shanley v Harvey (1763) 2 Eden 126, a claim was instituted by Shanley as administrator 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.
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) 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 corpus 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's case
Two years after the Mansfield decision in England, a servant in Scotland, Joseph Knight, sought the freedom to leave the employment of John Wedderburn of Ballendean, 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).
In late November or early December 1781 the captain and crew of the ship Zong threw various African slaves into the sea off the island of Hispaniola, ostensibly to save the lives of the remaining slaves as provisions were short. The shipowners then sought to claim under policies of insurance, arguing that jettisoning the cargo constituted a recoverable loss, even though it necessarily resulted in the murder of the slaves. In the first round of legal proceedings a jury initially held for the shipowners and upheld the claim. On a subsequent application to set that judgment aside, Lord Mansfield indicated that the jury in the initial trial "had no doubt (though it shocks one very much) that the Case of Slaves was the same as if Horses had been thrown over board ... ". That finding was overturned and fresh trial ordered, but in both legal actions it was accepted in principal by the court that the killing of the negro slaves was permissible, and did not thereby invalidate the insurance by virtue of being an unlawful act. Shortly afterwards provisions in the Slave Trade Act 1788 made it unlawful to insure against similar losses of slaves.
R v Hodge
In 1811, Arthur Hodge became the first (and only) British subject ever to stand trial for the murder 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. 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.
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 Commons 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.
- Abolition of slavery
- History of slavery
- Joseph Knight (slave)
- Slavery Abolition Act 1833
- Slavery in the colonial United States
- Slave Trade Act 1807
- Slavery in Britain and Ireland
- Somersett's case
- A reference from Cheshire's Private International Law (1936) as to the virtues of developing common law principles without statutory intervention; although quaere the extent to which this was a benefit in relation to slavery.
- Parliament was not totally silent on the subject of slavery. Although no legislation was ever passed which either expressly legalised slavery prior to the abolition acts, slavery was mentioned in passing in several acts of parliament, all of which tacitly assumed it to be lawful. A list of the British statutes relating to slavery can be found here, no less than 13 of which pre-date abolition. Further, a number of statutes were also passed in the British colonies, where the common law applied, including the Amelioration Act 1798 passed in the Leeward Islands regulating the ownership of slaves.
- Anti-slavery society
- Academics dispute the true origin of the saying. Some believe it dates from In the matter of Cartwright, 11 Elizabeth; 2 Rushworth's Coll 468 (1569), and others believe it is a misquote of Lord Henley's comments in Shanley v Harvey (1763) 2 Eden 126 at 127
- At the time there was not even a nascent concept of constitutional law in England, but it seems likely that for the declaration to have any force of law, it would have to have been endorsed by the Monarch (then Henry I), which clearly did not happen.
- In the matter of Cartwright, 11 Elizabeth; 2 Rushworth's Coll 468 (1569); although more commonly cited is the descriptions of the case in the arguments of counsel in the case of James Somersett
- Reports that the court held this all generally trace back to the argument of counsel in Somersett's case, however, it is not clear that the pronouncement was in fact made. Others have suggested that believe it is a misquote of Lord Hardwicke's comment "As soon as a man sets foot on English ground he is free" in Shanley v Harvey (1763) 2 Eden 126 at 127. Wherever the pronouncement originated, various reports alter the grammar and phraseology of the judgment, the original words of which were most likely only ever issued orally, and thus can never be definitively ascertained.
- The Trial of Lilburne and Wharton, T.C. Hansard (1818-26)
- In his arguments in Somersett's case, Granville Sharp averred that the court held: "...and it was resolved, that England was too pure an air for a slave to breathe, and so everyone who breathes it becomes free. Everyone who comes to this island is entitled to the protection of English law, whatever oppression he may have suffered and whatever may be the colour of his skin." However it is not clear from where Sharp drew this authority, and he may have embellished the reports of the decision that he had found.
- See Butts v Peny (1677) 2 Lev 201, 3 Keb 785 - an action was brought to recover possession of 100 slaves. The court held that slavery was legal in England in relation to infidels and that an action for trover would lie; see also Gelly v Cleve (1694) 1 Ld Raym 147
- Chamberlain v Harvey (1697) 1 Ld Raym 146; Smith v Gould (1705-07) 2 Salk 666
- Smith v Brown (1702) 2 Salk 666
- Although arguably in a dispute between two slave merchants, the defendant would have little incentive to argue that slavery was illegal in their defense.
- Smith v Gould 2 Salk 666 (1706); Ray 1274
- In 1772 it was estimated that there was as many as 14,000 slaves in Britain, see An Introduction to English Legal History, J.H.Baker (2002)
- The opinion was written by Philip Yorke and Charles Talbot, each of whom would later rise to the rank of Lord Chancellor
- There was a popular perception in the day that a slave which set foot in England was free. As early as 1577 William Harrison in his Description of England asserted that when slaves came to England "all note of servile bondage is utterly removed from them". More importantly, in the first edition of his hugely influential work, Commentaries on the Laws of England, William Blackstone asserted that slaves were free when they came to England, Bl. Comm., 1:123, although he changed his view in subsequent editions.
- It was this determination that the common law of England applied in the colonies that was part of the angst which Lord Mansfield underwent in relation to the Somersett decision; he knew that if he held slavery to be unlawful in England, it would de facto mean it was unlawful throughout the colonies and would cause economic ruin. This may be why he sought to limit his ruling territorially.
- Bl. Comm., vol I, p 123; although he resiled from this position later, some argue under political pressure
- The case report is not clear whether this was literally a butcher's bill, or whether this was the popular eighteenth century slang for the physician's fees.
- Somewhat injudiciously, as he had just prevented such a solemn determination from taking place during the course of the trial.
- English law is fond of such fudges; in land law, after 12 years a trespasser may obtain "squatter's rights" and cannot then be evicted by the true landowner, but the trespasser cannot himself be registered as the landowner until a subsequent period passes and he acquires it by prescription.
- Walvin, James (2011). The Zong: A Massacre, the Law and the End of Slavery. New Haven & London: Yale University Press. p. 153. ISBN 978-0-300-12555-9.
- A report of one of the appeals is available: Gregson v Gilbert (1783) 3 Doug KB 232
- Counsel for the prosecution averred that killing a slave had always been contrary to the common law, but cited no authority for this proposition.
- Slave Trade Act 1807, Stat 47 Geo III, chap 36. The offences created by the Act were made felony in 1811, to discourage contraband traffic. Slaves exported contrary to the Act were forfeited to the King, for the purpose only of divesting property.
- Slavery Abolition Act 1833, Stat 3 & 4 Will IV, chap 73.
- Transitional provisions, turning the freed slaves into bound "apprentices", ended in 1838.
- In 1641 Massachusetts was the first colony to legalise slavery; this was followed by Connecticut (1650), Virginia (1661), Maryland (1663) and New York and New Jersey (1664) - see generally History of slavery - Slavery in North America