Unequal: The Legacy Of English Law On Slavery?

• Published date: 14 October 2020
• Subject Matter: Government, Public Sector, International Law, International Courts & Tribunals, Human Rights
• Law Firm: Leigh Day
• Author: Mr Martyn Day and Walker Syachalinga

In the first of a series of blogs for Black History Month, Walker Syachalinga and Martyn Day from the international department look at how the law treated African slaves during the slave era and consider how justice and equality can be achieved for those who continue to suffer from the legacy of slavery.

Britain's past involvement in slavery remains a live and contentious issue over 200 years after the abolition of the slave trade. In July this year, the issue returned to public consciousness when the Prime Minister of Barbados appeared on Good Morning Britain to call on Britain to pay reparations for its past involvement in slavery. This blog provides a starting point for examining how the law treated African slaves during the slave era and what happened at the time of emancipation.

Unequal under common law

By way of background, a 1729 joint opinion of the attorney and solicitor generals, known as the Yorke-Talbot Opinion, stated that a slave brought to England by his master did not cease being one by virtue of being subject to English law or being baptised Accordingly, slaves could be forcibly returned to the plantations Although this " after-dinner opinion appeared to put slavery on a far stronger legal footing"¹, the fact that the view was expressed in a non-legally binding opinion rather than a judicial ruling meant that the status of slaves remained ambiguous

Further confusion ensued with the decision in Somerset v Stewart (1772) Lofft 1, 98 ER 499, where Lord Mansfield determined that a master could not forcibly remove a slave from England to be sold abroad. While this decision was well received and resulted in the right of slaves to challenge removal by reliance on habeas corpus, it remained unclear whether slaves in England were free under the common law. Lord Mansfield himself confirmed in the later decision of R v Inhabitants of Thames Ditton (1785) 4 Doug KB 300 that Somerset went no further than the proposition that a master could not forcibly remove a slave from England to be sold abroad².

The ambiguity of that decision was in sharp contrast to the clarity of the Scottish courts in Knight v Wedderburn (1772) St Tr 2-7, where Edinburgh's Court of Session upheld the Sheriff of Perth's ruling that "the state of slavery is not recognised by the laws of this kingdom, and is inconsistent with the principles thereof". The practical effect of English law's ambiguity was that African slaves continued to be treated unequally under the law when...