'English Common Law, Slavery and' Encyclopaedia of Blacks in European History and Culture (2008),Vol. I, pp. 200-203)
English Common Law Reports.
No statutes codifying modern slavery were ever passed in England. The only forced labor recognized in English law was feudal villeinage, which had died out by the seventeenth century. Confusion arose when Englishmen began to bring blacks they had legally bought as slaves in the colonies back to England. The colonial legislatures had laws to define slave status, but English law did not. From the precedents created by a series of cases that came before English Law courts regarding slavery, we must conclude that the status of slaves under English law remained ambiguous, despite the famous decision in the Somerset Case in 1772, until slavery was finally abolished in the British Empire by Parliamentary statute on August 28, 1833.
At the Star Chamber trial of John Lilburne in 1637, a case was quoted as follows: ‘in [1569], one Cartwright brought a slave from Russia, and would scourge him, for which he was questioned; and it was resolved that England was too pure an Air for Slaves to breathe in.’ This has since been interpreted as limiting the level of physical violence permissible in such cases. The point about the purity of English air was quoted in many of the later cases, including the Somerset Case, to much broader effect. In 1587, Hector Nuñez complained to the Court of Requests that he had ‘no remedie ...by the course of the Common Law of this realme... to compell’ an ‘Ethiopian’ who ‘utterly refuseth to tarry and serve’ him ‘to serve him duringe his life’.
In 1677, in Butts vs. Penny, where a trover claim was made regarding property of 10 blacks, the Court of King’s Bench ruled that since blacks were normally bought and sold they ranked as merchandize, and as they were infidels they could be considered as property for the purposes of claiming trover. Trover is an action at law to recover the value of property that has been taken from its legal owner. Thus, the court ruled that as non-Christians, blacks were essentially non-men, and in fact, property. This was repeated in Lowe v. Elton, also in 1677, and in 1694, in Gelly vs. Cleve, where it was decided that trover would lie for a black boy because he was a heathen. His religious status was emphasized to the court.
In Chamberlain v. Harvey (1696), Smith v. Brown and Cooper (1701) and in Smith v. Gould (1706), however, Lord Chief Justice Holt ruled that there could not be a action of trover in the case of a black slave, because the common law did not recognise blacks as different to other people, and although blacks could be bought and sold as chattels in Barbados, that was not the case in England. He said in 1701 that ‘as soon as a negro comes into England, he becomes free, one may be a villein in England but not a slave’. By this he meant that a man enslaved in the colonies was not recognised as a slave by English law, but was treated with the limited rights of a villein: that is slave-owners still had a right to service when they brought slaves to England from the colonies, but the slave was not their chattel, and he could not be treated as such.
The series of cases outlined above did not resolve the issue satisfactorily in the minds of the merchants and planters. In particular, the earlier decisions, where the status of blacks as property seemed dependent on their being heathens, made some people think that once a slave was baptised, this set him free. In 1729, to clarify these points, and to protect their property rights, the merchants and planters sought an opinion from Sir Philip Yorke, the attorney-general, and Charles Talbot, the solicitor-general, who ruled that a slave did not become free by coming to Great Britain or Ireland from the West Indies (Caribbean), either with or without his master; that his master’s property or right in him did not change when he came to Britain; that baptism did not make him free, or have any effect on his status; and finally that his master may might legally compel him to return to the plantations. This decision was given after dinner in Lincoln’s Inn, and so did not have the same legal status as a court judgement. In 1749, however, Yorke, by then Lord Chancellor Hardwicke, reaffirmed this opinion, making trover available for a slave in the case of Pearne vs. Lisle. This case was not reported until 1790, however, and thus exerted little or no power as a precedent for the next 40 years.
In 1750, Baron Thompson in Galway v. Cadee followed Holt in stating that a slave became free on arrival in England, and in 1762, in the case of Shanley v. Harvey, Lord Chancellor Henley declared that as soon as a man sets foot on English ground he is free. He asserted that a black could take his master to court for cruel treatment, and could have a habeas corpus (a writ that protects the individual from arbitrary imprisonment) if restrained of his liberty. These comments, however, were obiter dictum, said in passing, and not legally binding as precedent for subsequent decisions.
The year before the Somerset Case, William Murray, Lord Mansfield heard a similar case: Rex vs. Stapleton (1771). In this case, Robert Stapleton had attempted to send his alleged slave, Thomas Lewis, back to the colonies. The jury concluded that there was no evidence that Stapleton had property in Lewis, but in the course of the trial, Mansfield admitted that it had never been solemnly determined whether or not they this kind of property existed in England. Mansfield remarked to Thomas Lewis’s counsel, John Dunning, that he would prefer the question to remain unsettled, because he feared the consequences if slave masters were to lose their property by accidentally bringing their slaves to England.
Lord Mansfield’s decision in the Somersetcase of 1772 was taken at the time and later to mean the emancipation of black slaves in Britain. Mansfield remarked in the course of the trial that slavery was odious, and that it was not to be introduced by inference, and would require a new statute, or positive law to be supported in England. His actual ruling was more limited, however, and only stated that it was not legal for a master to take a slave away from England by force back to the colonies. This was confirmed by Mansfield in the case of Rex. v. Inhabitants of Thames Ditton (1785), in which one Charlotte Howe, a black woman, brought to England as a slave by a Captain Howe, sought poor relief from the Parish of Thames Ditton. Mansfield remarked that the Somersett case only determined that a master could not force a slave to leave England, much as a master could not remove his villein. He ruled that Howe could not have Settlement in the Parish, because the legislature comprising the various Poor Laws, in which relief was dependent on settlement in a parish, never thought of slaves.
Justices of the Peace, however, sometimes assumed that the Somerset Case had meant emancipation. In 1774, John Wilkes, a lay magistrate, discharged a black slave and recommended he sue his former master for the last 14 years’ worth of wages. Meanwhile, slave-owners continued to flout even the limited ruling that slaves could not be removed from England by force: as late as 1823 a Mrs Allen took her slave Grace Jones back to Antigua against her will. Blacks could not even rely on their right to habeus corpus: in 1799, John Hamlet was refused it and returned to his master, Matthias Dobinson, a Jamaican trader; and in 1812, King’s Bench refused to issue a habeus corpus for 10 black crewmen held on a Portuguese merchantman in Truro, Cornwall.
In Gregson v. Gilbert (1783), the owners of the Zong came up against their insurers, the dispute centring on whether the throwing overboard of 132 slaves was a genuine act of jettison or a fraud. The jury recognised the slaves as property and ordered the insurers to pay up. The insurers appealed, but no record of the second case remains. Some contemporaries, such as abolitionist Granville Sharp, felt that it should have been a murder case rather than an insurance case. This case shows that enslaved people were could still be treated as property before the law.; however public outcry did influence Parliament. In 1788 Dolben’s Slave Carrying Law prohibited the insurance of slaves under any circumstances other than piracy, natural disaster, insurrection, barratry or fire. This was a very limited improvement, but it showed that they way forward for abolitionists was the incontrovertible, positive, parliamentary, statute law, rather than the vacillating precedents of the common law.
Further Reading:
P.Fryer, Staying power : the history of black people in Britain (1984).
J.Oldham, English Common Law in the Age of Mansfield (Chapel Hill, 2004).
R. Paley, ‘After Somerset: Mansfield, Slavery and the Law in England, 1772-1830’, in N. Laundau ed., Law, Crime and English Society, 1660-1830, (Cambridge, 2002), pp. 165-184.
George Van Cleve, ‘Somerset’s Case and its antecedents in Imperial perspective’, Law and History Review, Vol.24, no.3 (Fall 2006).
F.O. Shyllon, Black Slaves in Britain (1974).
At the Star Chamber trial of John Lilburne in 1637, a case was quoted as follows: ‘in [1569], one Cartwright brought a slave from Russia, and would scourge him, for which he was questioned; and it was resolved that England was too pure an Air for Slaves to breathe in.’ This has since been interpreted as limiting the level of physical violence permissible in such cases. The point about the purity of English air was quoted in many of the later cases, including the Somerset Case, to much broader effect. In 1587, Hector Nuñez complained to the Court of Requests that he had ‘no remedie ...by the course of the Common Law of this realme... to compell’ an ‘Ethiopian’ who ‘utterly refuseth to tarry and serve’ him ‘to serve him duringe his life’.
In 1677, in Butts vs. Penny, where a trover claim was made regarding property of 10 blacks, the Court of King’s Bench ruled that since blacks were normally bought and sold they ranked as merchandize, and as they were infidels they could be considered as property for the purposes of claiming trover. Trover is an action at law to recover the value of property that has been taken from its legal owner. Thus, the court ruled that as non-Christians, blacks were essentially non-men, and in fact, property. This was repeated in Lowe v. Elton, also in 1677, and in 1694, in Gelly vs. Cleve, where it was decided that trover would lie for a black boy because he was a heathen. His religious status was emphasized to the court.
In Chamberlain v. Harvey (1696), Smith v. Brown and Cooper (1701) and in Smith v. Gould (1706), however, Lord Chief Justice Holt ruled that there could not be a action of trover in the case of a black slave, because the common law did not recognise blacks as different to other people, and although blacks could be bought and sold as chattels in Barbados, that was not the case in England. He said in 1701 that ‘as soon as a negro comes into England, he becomes free, one may be a villein in England but not a slave’. By this he meant that a man enslaved in the colonies was not recognised as a slave by English law, but was treated with the limited rights of a villein: that is slave-owners still had a right to service when they brought slaves to England from the colonies, but the slave was not their chattel, and he could not be treated as such.
The series of cases outlined above did not resolve the issue satisfactorily in the minds of the merchants and planters. In particular, the earlier decisions, where the status of blacks as property seemed dependent on their being heathens, made some people think that once a slave was baptised, this set him free. In 1729, to clarify these points, and to protect their property rights, the merchants and planters sought an opinion from Sir Philip Yorke, the attorney-general, and Charles Talbot, the solicitor-general, who ruled that a slave did not become free by coming to Great Britain or Ireland from the West Indies (Caribbean), either with or without his master; that his master’s property or right in him did not change when he came to Britain; that baptism did not make him free, or have any effect on his status; and finally that his master may might legally compel him to return to the plantations. This decision was given after dinner in Lincoln’s Inn, and so did not have the same legal status as a court judgement. In 1749, however, Yorke, by then Lord Chancellor Hardwicke, reaffirmed this opinion, making trover available for a slave in the case of Pearne vs. Lisle. This case was not reported until 1790, however, and thus exerted little or no power as a precedent for the next 40 years.
In 1750, Baron Thompson in Galway v. Cadee followed Holt in stating that a slave became free on arrival in England, and in 1762, in the case of Shanley v. Harvey, Lord Chancellor Henley declared that as soon as a man sets foot on English ground he is free. He asserted that a black could take his master to court for cruel treatment, and could have a habeas corpus (a writ that protects the individual from arbitrary imprisonment) if restrained of his liberty. These comments, however, were obiter dictum, said in passing, and not legally binding as precedent for subsequent decisions.
The year before the Somerset Case, William Murray, Lord Mansfield heard a similar case: Rex vs. Stapleton (1771). In this case, Robert Stapleton had attempted to send his alleged slave, Thomas Lewis, back to the colonies. The jury concluded that there was no evidence that Stapleton had property in Lewis, but in the course of the trial, Mansfield admitted that it had never been solemnly determined whether or not they this kind of property existed in England. Mansfield remarked to Thomas Lewis’s counsel, John Dunning, that he would prefer the question to remain unsettled, because he feared the consequences if slave masters were to lose their property by accidentally bringing their slaves to England.
Lord Mansfield’s decision in the Somersetcase of 1772 was taken at the time and later to mean the emancipation of black slaves in Britain. Mansfield remarked in the course of the trial that slavery was odious, and that it was not to be introduced by inference, and would require a new statute, or positive law to be supported in England. His actual ruling was more limited, however, and only stated that it was not legal for a master to take a slave away from England by force back to the colonies. This was confirmed by Mansfield in the case of Rex. v. Inhabitants of Thames Ditton (1785), in which one Charlotte Howe, a black woman, brought to England as a slave by a Captain Howe, sought poor relief from the Parish of Thames Ditton. Mansfield remarked that the Somersett case only determined that a master could not force a slave to leave England, much as a master could not remove his villein. He ruled that Howe could not have Settlement in the Parish, because the legislature comprising the various Poor Laws, in which relief was dependent on settlement in a parish, never thought of slaves.
Justices of the Peace, however, sometimes assumed that the Somerset Case had meant emancipation. In 1774, John Wilkes, a lay magistrate, discharged a black slave and recommended he sue his former master for the last 14 years’ worth of wages. Meanwhile, slave-owners continued to flout even the limited ruling that slaves could not be removed from England by force: as late as 1823 a Mrs Allen took her slave Grace Jones back to Antigua against her will. Blacks could not even rely on their right to habeus corpus: in 1799, John Hamlet was refused it and returned to his master, Matthias Dobinson, a Jamaican trader; and in 1812, King’s Bench refused to issue a habeus corpus for 10 black crewmen held on a Portuguese merchantman in Truro, Cornwall.
In Gregson v. Gilbert (1783), the owners of the Zong came up against their insurers, the dispute centring on whether the throwing overboard of 132 slaves was a genuine act of jettison or a fraud. The jury recognised the slaves as property and ordered the insurers to pay up. The insurers appealed, but no record of the second case remains. Some contemporaries, such as abolitionist Granville Sharp, felt that it should have been a murder case rather than an insurance case. This case shows that enslaved people were could still be treated as property before the law.; however public outcry did influence Parliament. In 1788 Dolben’s Slave Carrying Law prohibited the insurance of slaves under any circumstances other than piracy, natural disaster, insurrection, barratry or fire. This was a very limited improvement, but it showed that they way forward for abolitionists was the incontrovertible, positive, parliamentary, statute law, rather than the vacillating precedents of the common law.
Further Reading:
P.Fryer, Staying power : the history of black people in Britain (1984).
J.Oldham, English Common Law in the Age of Mansfield (Chapel Hill, 2004).
R. Paley, ‘After Somerset: Mansfield, Slavery and the Law in England, 1772-1830’, in N. Laundau ed., Law, Crime and English Society, 1660-1830, (Cambridge, 2002), pp. 165-184.
George Van Cleve, ‘Somerset’s Case and its antecedents in Imperial perspective’, Law and History Review, Vol.24, no.3 (Fall 2006).
F.O. Shyllon, Black Slaves in Britain (1974).
