Slavery in Britain and Ireland - Judicial Decisions

Judicial Decisions

For more details on this topic, see Slavery at common law.

John Locke, the philosophical champion of the Glorious Revolution argued against slavery (Ch.IV) and asserted that "every man has property in his own person" (§27, Ch.V). By the 18th century African slaves began to be brought into London and Edinburgh as personal servants. In a number of judicial decisions between slave merchants, it was tacitly accepted that slavery of Africans was legal. In 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.

An English court case of 1569 involving Cartwright who had bought a slave from Russia ruled that English law could not recognise slavery. This ruling was overshadowed by later developments particularly in the navigation acts, but was upheld by the Lord Chief Justice in 1701 when he ruled that a slave became free as soon as he arrived in England.

But agitation saw a series of judgments repulse the tide of slavery. In Smith v. Gould (1705–07) 2 Salk 666, Holt CJ stated that by

the common law no man can have a property in another.

But in 1729 the then-Attorney General and Solicitor General of England signed the Yorke–Talbot slavery opinion expressing their view (and, by implication, that of the Government) that slavery of Africans was lawful in England. At this time slaves were openly bought and sold on commodities markets at London and Liverpool. Slavery was also accepted in England's many colonies.

Lord Henley LC said in Shanley v. Harvey (1763) 2 Eden 126, 127 that as

soon as a man sets foot on English ground he is free.

But it was not until R v. Knowles, ex parte Somersett (1772) 20 State Tr 1 the law was settled. A man called James Somersett was the slave of a Boston customs officer. They came to England, and Somersett escaped. Captain Knowles captured him and took him on his boat, Jamaica bound. Three abolitionists, saying they were his "godparents", applied for a writ of habeas corpus. One of Somersett's lawyers, Francis Hargrave, stated "In 1569, during the reign of Queen Elizabeth I, a lawsuit was brought against a man for beating another man he had bought as a slave overseas. The record states, 'That in the 11th of Elizabeth, 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 a slave to breathe in'." He argued that the court had ruled in Cartwright's case that English Common Law made no provision for slavery, and without a basis for its legality, slavery would otherwise be unlawful as false imprisonment and/or assault. In his judgment of 22 June 1772, Lord Chief Justice William Murray, Lord Mansfield, of the Court of King's Bench, started by talking about the capture and forcible detention of Somersett. He finished with:

So high an act of dominion must be recognized by the law of the country where it is used. The power of a master over his slave has been exceedingly different, in different countries.

The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory.

It is so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.

Several different reports of Mansfield's decision appeared. Most disagree as to what was said. The decision was only given orally; no formal written record of it was issued by the court. Abolitionists widely circulated the view that it was declared that the condition of slavery did not exist under English law, although Mansfield later said that all that he decided was that a slave could not be forcibly removed from England against his will.