Slavery at common law facts for kids

Imagine a time when the rules about slavery in the British Empire were really confusing. For hundreds of years, judges in Britain made different decisions about slavery, the slave trade, and the rights of both slaves and slave owners. Unlike in its colonies (like those in the Caribbean), Britain itself didn't have many laws about slavery. This meant that judges had a lot of freedom to decide things based on "common law" – rules that came from past court decisions. Two attempts to create specific laws about slavery in Parliament failed in the 1660s and 1674.

Some people believed that slavery was never truly legal in England. They often quoted famous judges like Lord Mansfield, who supposedly said, "the air of England is too pure for any slave to breathe." However, the real legal situation was much more complicated and debated. In the 1600s and 1700s, some African slaves were openly kept, bought, sold, and even searched for when they tried to escape within Britain.

Early Rules About Freedom

Long ago, in 1171, a rule was made in Ireland that all English slaves there should be set free. Some history books also suggest that slavery in England was ended by a big freedom announcement in 1381. This date lines up with the Peasants' Revolt, a time when the young King Richard II made some promises, though he later took them back. A type of forced labor called villeinage (where people were tied to the land) did continue in England, slowly fading away until the last person in villeinage died in the early 1600s.

However, in later court cases about slavery, these old rules or announcements were not used as reasons to say that slavery was against the law.

The Cartwright Case: A Breath of Fresh Air?

In 1569, a man named Cartwright was seen badly beating another man. Normally, this would be against the law, unless Cartwright had a good reason. Cartwright claimed the man was a slave he brought from Russia, and so he could punish him. A report from 1680 says the court decided that "England was too pure an Air for Slaves to breath in." It's often said the court ordered the man to be freed.

It's not totally clear if this case made slavery illegal in England. It might have just meant there were limits on how much slaves could be physically punished. In later cases before the famous Somersett's case, Cartwright's case was not used to argue that slavery was unlawful. However, most of those later cases were between slave traders, who wouldn't want to argue that slavery was illegal anyway.

It's thought that Cartwright's slave was white and likely Christian, since he was from Russia, but this isn't certain.

The African Slave Trade and English Law

The courts' early dislike of slavery began to change as the African slave trade grew. In the 1600s, a huge trade in black slaves from Africa started. These slaves were mainly forced to work on sugar and tobacco farms in British colonies abroad. Places like Barbados (an English colony in 1624) and Jamaica (in 1655) became very rich and central to the slave trade for the growing English empire.

In 1660, King Charles II gave a company, which later became the Royal African Company, the sole right to trade slaves. This company, led by the king's brother James, Duke of York, was key to England's slave trade. Its business arguments about slavery soon brought new legal questions to English courts. Sometimes, under trade rules, slaves were treated like "chattels" (property) with very few rights. But English courts didn't always agree with these trade customs.

The issue came up in English courts because lawsuits could be filed in England even if the problem started abroad. In 1698, a law opened the slave trade to all English citizens. In the 1700s, slave owners in England would advertise sales of African slaves and ask for help finding runaway slaves.

Were People Property? The Butts v. Penny Case

In 1677, after the Royal African Company went bankrupt, a high court called King's Bench stepped in. In the case of Butts v. Penny, the court said that black people could be treated like "chattels" (property) in certain lawsuits. The idea was that non-Christians couldn't be full citizens because they couldn't swear an oath of loyalty. So, as foreigners, they could be seen as "goods" for trade.

However, Chief Justice Holt disagreed with treating people as property in 1696. He said that "as soon as a negro comes to England he is free." He believed a person could be a "villein" (a type of serf) in England, but not a slave. In 1706, Chief Justice Holt again refused to treat a slave as property, saying no one could own another person.

Despite Holt's decisions, slaves were still regularly bought and sold in places like Liverpool and London in the 1700s. Lawsuits about slave contracts were common and usually seen as legal. By 1700, there wasn't widespread use of slave labor in England itself, unlike in the colonies. African servants were often seen as status symbols, but their treatment was not as harsh as plantation slaves.

The main legal problems in England arose if a slave escaped while traveling, or if a slave owner from the colonies brought a slave to England and expected to keep them enslaved. More and more slaves were brought to England in the 1700s, which made people more aware of the issues. Besides moral concerns, there was a clear conflict between owning people as property and England's tradition of freedom, protected by a rule called habeas corpus (which means you have a right to be brought before a judge to decide if your imprisonment is lawful). If courts recognized slave ownership in the colonies, how would those rights be treated if a slave came to England?

The Yorke–Talbot Opinion: A Setback for Freedom

Chief Justice Holt's decisions had worried slave owners. So, in 1729, some slave owners asked the Crown's main legal advisors for a clear answer. This led to the Yorke–Talbot slavery opinion. These legal experts said that under English law:

1. A slave's status didn't change when they came to England.
2. A slave could be forced to return to the colonies from England.
3. Becoming Christian wouldn't free a slave.

This opinion didn't give any legal reasons, but it was widely shared and used by slave owners. One of the authors, Lord Hardwicke, later supported these ideas in a court case in 1749. This case was about ownership of slaves in Antigua. Lord Hardwicke ruled that slavery was not against English law and was legal in Antigua.

At this time, English courts had only recognized slave ownership in business disputes. They hadn't decided if slaves themselves could go to court to gain their freedom. A very old rule for freeing serfs wasn't used anymore. So, the big question in the 1700s was whether habeas corpus could be used to free slaves.

Sir William Blackstone, a famous lawyer, believed that "the spirit of liberty is so deeply ingrained in our constitution" that a slave became free the moment they landed in England. Other important lawyers, like Lord Hardwicke and Lord Mansfield, thought it was better to recognize slavery and regulate the slave trade, rather than end it. They worried that if Britain stopped, other countries would just take over the trade, and slaves would suffer more. The idea that African slaves could be treated as property because they weren't Christian was dropped in the mid-1700s, as many slaves had become Christian without gaining freedom. Now, lawyers tried to justify slave ownership by comparing it to the old rules of villeinage.

The Shanley v. Harvey Case

In 1763, a case called Shanley v Harvey came before the court. Shanley was trying to get money back from a young man named Harvey.

Shanley had brought Harvey to England as a child slave 12 years earlier and given him to his niece. His niece had Harvey baptized and changed his name. When she was very sick, about an hour before she died, she gave Harvey about £800 in cash (a lot of money back then). She asked him to pay a bill and use the rest wisely. After she died, Shanley sued Harvey to get the money back.

Lord Henley, the Lord Chancellor, rejected Shanley's lawsuit. He said that as soon as a person stepped onto English soil, they became free. He also said that a "negro" could sue their master for bad treatment and ask for habeas corpus if they were held captive. However, these comments weren't strictly necessary for his decision in the case, so they were just obiter dictum (a judge's opinion not binding on future courts).

The Stapylton Case

One of the few non-business cases about slavery was R v Stapylton in 1771, heard by Lord Mansfield. Stapylton was accused of trying to force his supposed slave, Thomas Lewis, out of England. Stapylton argued that since Lewis was his slave, his actions were legal.

Lord Mansfield could have asked a group of judges to decide this legal point, but he avoided it. He tried to get the parties to settle without arguing about whether slavery was legal.

In the end, Mansfield told the jury they should assume Lewis was a free man unless Stapylton could prove otherwise. He also said that unless they found Stapylton was the legal owner of Lewis, they should find him guilty. Lewis was allowed to speak in court. The jury found Stapylton guilty. However, Lord Mansfield was careful to say that whether slave owners had property rights in England "has never been solemnly determined."

James Somersett's Famous Case

The big question of a slave's rights against their owner finally came before Lord Mansfield and the King's Bench court in 1771. A legal order called a habeas corpus was issued to free James Somersett, a black man who was chained on a ship in the Thames River. The ship had come from Virginia and was heading to Jamaica. The ship's captain claimed Somersett was a slave under Virginia law. Lord Mansfield wanted to avoid making a big decision, and he urged both sides to settle. But the case became very famous. Slave traders wanted to know if slaves were a safe investment, and people who wanted to end slavery, like Granville Sharp, pushed for a decision.

In his judgment, Lord Mansfield said that slavery was so "hateful" that it could only exist if there was a specific law allowing it. Since there was no such law in England, he ordered that "the black must be discharged," setting Somersett free.

This decision had huge effects. Some historians believe it gave American colonists, especially those in the south, another reason to oppose British rule. Lord Mansfield, knowing the huge profits linked to slavery, famously said, "fiat justitia, ruat cælum," which means "let justice be done whatever be the consequence."

After Somersett: The Thames Ditton Case

Lord Mansfield later explained his decision in the Somersett case in R v Inhabitants of Thames Ditton (1785). He said his ruling in the Somersett case only meant that a slave could not be forced to leave England against their will. In Thames Ditton, a black woman named Charlotte Howe had been brought to England as a slave. After her owner died, Charlotte asked for help from the local poor relief system. Mansfield ruled that Charlotte was not entitled to help because it depended on having been "hired," which didn't apply to slaves.

Joseph Knight's Fight for Freedom

In 1777, after Lord Mansfield's decision in England, a servant in Scotland named Joseph Knight wanted to leave the service of John Wedderburn of Ballendean. Knight argued that simply landing in Scotland freed him from being a slave, as slavery was not recognized there. Knight had been bought by Wedderburn in Jamaica many years earlier.

The case caused disagreement in the courts because Wedderburn argued that slavery and "perpetual servitude" (being forced to work forever) were different. He claimed that even if Knight wasn't a slave, he was still bound to serve him forever, like an indentured servant or an apprentice. At first, the local judges in Perth sided with Wedderburn. But when Knight appealed, the decision was overturned. Wedderburn then appealed again to a higher court.

The higher court strongly rejected Wedderburn's appeal. They ruled that the power Wedderburn claimed over Knight, based on Jamaican law, was unfair and could not be supported in Scotland. They said Wedderburn had no right to Knight's service for any time, nor could he send him out of the country against his will. They also noted that Knight was protected by a Scottish law from being sent out of the country against his will.

Evidence from this case can still be found in the National Archives of Scotland. Henry Dundas, a powerful lawyer, represented Joseph Knight.

The Zong Massacre: A Horrific Event

The Slave Ship, a painting by J. M. W. Turner inspired by the Zong killings.

In late 1781, the captain and crew of the English slave ship, Zong, threw many African slaves into the sea near Hispaniola. They did this to save the lives of the remaining slaves because they were running out of food and water. The ship owners then tried to claim money from their insurance, arguing that throwing the "cargo" overboard was a loss they should be paid for, even though it meant murdering the slaves.

In the first court case, a jury initially agreed with the ship owners. When the decision was challenged, Lord Mansfield said that the jury "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." This first ruling was overturned, and a new trial was ordered. But in both legal actions, the court generally accepted that killing the slaves was allowed and didn't make the insurance invalid. Soon after, rules in the Slave Trade Act 1788 made it illegal to insure against such losses of slaves.

The Hodge Case: A Murder Trial

In 1811, Arthur Hodge became the first (and only) British subject ever to be tried for the murder of a slave. As part of his defense, 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 this argument and quickly dismissed it. The lawyers for the prosecution also mentioned a law from 1798 that applied in the British Virgin Islands. This law set punishments for slave owners who were cruel to their slaves, but it only mentioned fines, not more serious crimes like murder.

The trial happened under English common law in the British Virgin Islands. Hodge was executed just eight days after the jury found him guilty. The jury, made up mostly of slave owners, actually recommended mercy. Because of this quick execution, the judge's instructions in the trial are not seen as a strong legal example for future cases.

Forbes v Cochrane: Freedom Confirmed

The idea that a specific law was needed to make slavery legal was confirmed by Mr. Justice Best in the case of Forbes v Cochrane in 1824. He stated, "There is no statute recognising slavery which operates in that part of the British empire in which we are now called upon to administer justice." He said the Somerset case meant a slave in England was free, and anyone trying to force them back into slavery was breaking the law. However, not all reports of this case fully agree on the details.

Laws That Ended Slavery

The common law (rules from judges' decisions) couldn't go any further on its own. But the 1772 decision in James Somersett's case was widely understood to mean that slavery was illegal in England. While some experts disagree, this idea was boosted by the growing movement to end slavery. Slavery didn't just disappear on its own, like villeinage did, because powerful business interests made too much money from it.

In 1788, the Slave Trade Act 1788 was passed, partly because of the Zong Massacre. This law aimed to improve the conditions for slaves being transported. It was renewed several times before becoming permanent in 1799. In 1792, the House of Commons voted for "gradual" abolition. Then, in 1807, Parliament made the African slave trade illegal. This stopped British merchants from bringing more people from Africa, but it didn't change the status of the millions of existing slaves. Courts continued to recognize slavery in the colonies.

So, those who wanted to end slavery then focused on freeing slaves in the West Indies. Legally, this was hard because it meant taking away private property. But it finally happened in 1833. The British government paid £20 million (a huge sum!) from public funds to buy slaves from their owners and then free them. The freed slaves themselves received no money for their forced labor. From August 1, 1834, all slaves in British colonies were "absolutely and forever manumitted" (set free).

In British colonies, it was generally believed that specific laws were needed to make slavery legal, and many colonies passed such laws.

|

See Also

• Abolitionism in the United Kingdom
• History of slavery
• Joseph Knight (slave)
• Slavery Abolition Act 1833
• Slavery in Britain
• Slavery in Ireland
• Somersett's case