Slavery at common law
[2] Some scholars assert slavery was not recognised as lawful,[3] 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".
[6] 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Peasants' Revolt, after which a number of concessions were made by the 14-year-old King Richard II, which were later rescinded.
"[c] It is unclear if the effect of the case was to actually make slavery in England illegal, but rather generally to impose limits on the physical punishment on slaves.
[d] 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 tobacco plantations in British colonies abroad.
[11] The Royal African Company, governed by James, Duke of York, the king's brother, was central to England's slave trade, and its commercial disputes over slavery soon presented the English courts with novel legal questions.
Increasing numbers of slaves were brought into England in the 18th century,[14] 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 defining property in slaves and an alternative English tradition of freedom protected by habeas corpus.
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 case revolved around title to fourteen slaves who were in Antigua, and involved a number of technical points as to colonial law.
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.
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[i] and to make good use of the money.
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.
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.
Answering this as well as Somersett's council who had put pressure on the court by observing the very large profits dependent on slavery, Mansfield said, "fiat justitia, ruat cælum, let justice be done whatever be the consequence."
Lord Mansfield subsequently commented upon his decision in the Somersett case in R v Inhabitants of Thames Ditton (1785)[20] The official report notes that Mansfield expressed the view during counsel's argument that his ruling in the Somerset case decided only that a slave could not be forcibly removed from England against his will: "The determinations go no further than that the master cannot be force compel him to go out of the kingdom."
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 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.
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".
[22] That finding was overturned and fresh trial ordered, but in both legal actions it was accepted in principle 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.
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.
"[26] He described the Somerset case as entitling a slave in England to discharge (from that status), and rendering any person attempting to force him back into slavery as guilty of trespass.
Whilst some academics have disupted this, the perception was fuelled by the growing abolitionist movement, notwithstanding this was scarcely an accurate reflection of the decision.
3. c. 54) was passed, partly in response to the Zong Massacre to ameliorate the conditions under which slaves might be transported (the act would be renewed several times before being made permanent in 1799).
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.
Legally, this was difficult to achieve, since it required the compulsory divesting of private property; but it was finally done by the Slavery Abolition Act 1833 (3 & 4 Will.
