4.2.2 Early Encounters: A (not so) Confused State of Slavery Before Somerset?
Before 1772, English courts had the opportunity to evaluate disputes concerning slavery in a dozen or so cases. Some preconditions have to be borne in mind. First, although some of the cases resulted in seemingly sweeping judgments, the reader always has to bear in mind that the clear distinction between the ratio decidendi and the obiter dictum of a case implies that the precedential value of some statements was severely curtailed.
This is especially true for a topic such as slavery, in which the personal feelings of judges can more easily be inferred from judgments. Second, some of the cases were poorly reported and not always well known to contemporaries, as judgments were sometimes published long after they were delivered.13 We also do not know to what extent manuscript versions of some of these decisions circulated amongst judges and barristers, a common practice in the eighteenth century.14 Third, before Somerset, it seems that there has not been a single case in which the state of slavery itself was directly at issue. Cases that reached the royal courts were concerned with actions of trespass, trover and indebitatus assumpsit.15 In other terms, we are dealing with cases of what we would now call contract law or tort law, in which claims arose concerning an African slave, who was seen as personal property by at least one of the parties. As a result, we only get to know more about the state of slavery by looking whether these courts went behind the alleged property interest and effectively said something related to the slave, the kind of merchandise at hand.164.2.2.1 Unsound Footing: The Infidel Rationale
The earliest reported case at the Court of King’s Bench was Butts v. Penny in 1677. The plaintiff brought an action of trover for 100 negroes who were in Southeast Asia and were taken by the defendant.17 The defendant made an analogy with the law of villeinage, using it to assert that there could be no property in the person of a man sufficient to maintain trover.
But the court held otherwise. As negroes were treated as merchandise amongst merchants, and also because they were infidels, the King’s Bench said that there “might be” a property in them sufficient to maintain trover. The precedential value of the case should be doubted; a judgment was given for the plaintiff nisi causa.18A second case, Gelly v. Cleve, was adjudged in 1694 at the Court of Common Pleas and came to the same conclusion as Butts v. Penny, namely that “Trover will lie for a Negro boy, for they are heathens”.19
For the sake of completeness, Sir Thomas Grantham’s case of 1687 in King’s Bench also involved a slave. In this rather strange case, Sir Thomas Grantham, an English tobacco trader, took a “monster” with him from the East Indies, which he exposed to the sight of Englishmen for profit.20 The case report mentions we were dealing with a man “who had the perfect shape of a child growing out of his breast as an excrescency, all but the head”. An educated guess would say that we are dealing with a Siamese twin of which one died at birth, and that Sir Grantham decided to use this slave for the purposes of hosting a “freak show”, a sort of exhibition which had become popular in England starting from the sixteenth century. The report mentions that the slave was baptised and taken away from Sir Thomas Grantham. Grantham, undeterred, brought a writ de homine replegiando against the person who had detained his “monster”, and the Indian was eventually returned to Sir Thomas Grantham. Given we have no information on any proceedings or arguments at the King’s Bench, it seems impossible to infer clear principles from this case.
At first sight, the fact that trover was allowed for slaves, seems to indicate that English common law gave some recognition to slavery arising in one of the English colonies. Otherwise, the English courts could have decided to disallow the action, based on the fact that there could not be personal property in a man according to common law.
But given that in both of the cases, the slaves themselves were abroad, the question remained whether English courts would act the same if the slave had been in England. Second, the cases were also decided on a very unstable footing, as both Butts v. Penny and Gelly v. Cleve seemed to be decided on the basis that the slaves were not baptised Christians. Instead of wholeheartedly embracing chattel slavery in England, such reasoning would create legal uncertainty for colonial slaveholders, as a slave might well be baptised.214.2.2.2 Chief Justice Holt and Slavery—Emancipation or “Slavish Servants”?
In the period 1689–1710, England’s most important judge was Sir John Holt (1642–1710), who presided the Court of King’s Bench. During this period, three better reported cases concerning slavery were decided before the English courts.
In Chamberline v. Harvey (Court of King’s Bench, 1696/1697), a plantation slave was brought to England, where, after some endeavours, he started working for one Robert Harvey as a servant, receiving wages. The plaintiff (one Willoughby Chamberline) alleged that the negro was his slave, and brought an action of trespass de bonis asportatis against the defendant for the loss of value and services of this slave. The report includes an overview of the arguments of counsel, with plaintiff’s counsel trying to erect an English law of slavery derived from the laws of villeinage. In addition, the plaintiff’s counsel also remarked that a broad judgment against slavery would disrupt the slave trade. Defendant’s counsel countered this with references to slavery as contrary to the ius naturale, the favor libertatis of English law and the fact that the slave’s legal status, acquired under the lex loci of an American plantation, should be disregarded in England. Furthermore, given that the slave was baptised, the defendant’s counsel pleaded that this could serve as a manumission. Next to that, the defendant’s counsel also explicitly repudiated the analogy between villeinage and slavery, arguing that the slave could neither be seen as a villein regardant nor as a villein in gross.22 Holt decided to deliver a narrow judgment.
The issue of baptism conferring manumission was ignored, but Holt decided that neither a general action of trespass, nor an action for trover, thus directly contravening Butts v. Penny, would lie for taking away the negro, because “a negro cannot be demanded as a chattel”. Holt did offer some solace to slaveholders, by suggesting that “a special action of trespass for taking his servant, per quod servitium amisit” might be possible. In such an action, the master could not recover the value of the slave himself, or damage done to the servant, but only sue for recovery of the loss of service. In allowing this, Holt tried to equate the slave with what he called a “slavish servant”. In short, the court’s decision seemed to be a first (slight) blow to the rights of slaveholders but did not declare slaves emancipated.23At first sight, Holt seemed to have gone further in the next case, Smith v. Brown and Cooper (Court of King’s Bench, 1705). In this case, the plaintiff declared an indebitatus assumpsit for a negro which he had sold to the defendant in Cheap, one of the wards of the City of London. Although the jury verdict went in favour of the plaintiff, defendant asked for a motion in arrest of judgment, which was granted.24 Holt made a sweeping statement that “as soon as negro comes into England, he becomes free. One may be a villein in England, but not a slave”. At the same time, he told the plaintiff that he should have said that the sale of the slave had happened in Virginia, and not England. According to Holt, the laws of that country, being a conquered territory subject to the King, allowed for slavery (“by the laws of that country, negroes are saleable”). There are two ways to read this judgment. Either this showed that slavery did not exist at all in England, or it just showed that “pure chattel slavery” did not exist in England, which would make the case consonant with Chamberline v. Harvey.25 It is also little unclear whether Holt was encouraging litigants in this case to use a pleading fiction (namely saying that the sale of a sale in England took place in Virginia) in order to allow slavery actions before English courts.
Furthermore, the case did not have precedential value either, as the report mentions that the attorney-general intervened during judgment to indicate a certain technicality to the Chief Justice. After this intervention, in the words of the report, “nothing was done”.26The third case in which Holt dealt with slavery, Smith v. Gould (Court of King’s Bench, 1706) can serve as an argument in favour of construing Smith v. Brown and Cooper narrowly. This case dealt with an action of trover for a negro (of whom it is unclear whether he was in England or abroad), which the court declined in a motion in arrest of judgment. Holt declared that trover was not possible, given the owner did not have an absolute property right in the slave. However, he reiterated his support for an action per quod servitium amisit, and added an alternative possible action, trespass quare captivum suum cepit. The latter would allow the plaintiff to show that the negro was his and that he had bought him. This made it easier for a master to claim damages for the loss of the services of his slave.27
In conclusion, Holt imposed murky limits on which incidents of slavery were to be allowed in England. Clearly, he held that classical chattel slavery, the state in which the slave would find himself in the colonies, could not be allowed under principles of English common law. However, unless one broadly interprets the meaning of Smith v. Brown and Cooper, he also held that at least some incidents of slavery would be allowed under English common law, equating the slave with a “slavish servant”. Furthermore, it is apparent that Holt believed that the English common law and the law of the colonies were two separate legal systems. Accordingly, in his view, judgments based on English common law would not create awkward issues for English colonies that clearly allowed for slavery.28
4.2.2.3 The Era of Yorke-Talbot: The Nadir of the English Freedom Principle
In the early 1720s, the Privy Council adopted the previously discussed theory of “conquered” versus “discovered” colonies, which, according to Van Cleve, meant that Holt’s decisions might render slavery unlawful in those colonies which were governed by English common law.
These were primarily the discovered colonies, but also those conquered colonies which would have received the relevant part of the common law by royal assent.29The legal uncertainty thus created was not beneficial for slave-owners. Historiography believed for a long time that this is why slave-owners went to Sir Philip Yorke (1690–1764), at that time the attorney-general, and Sir Charles Talbot (1685–1737), the solicitor-general, to find a listening ear for their grievances.30 The two of them drafted (“upon a petition in Lincoln’s Inn Hall, after dinner”, according to Lord Mansfield31) the infamous Yorke-Talbot opinion on the status of slavery in England. In that opinion, Yorke and Talbot determined four points: (1) A slave coming from the West Indies, with or without his master, did not become free by arriving in England; (2) the master’s property or right in the slave was not at all varied or determined by this arrival; (3) baptising the slave did not change his legal status; and (4) masters could compel their slaves to return together with them to the colonies.32 Although this statement could, technically, not overrule judgments by common law courts, the position of these legal heavyweights led contemporaries to conclude that the opinion had little less authority than settled law.33 More recent historiography has partially revised this understanding of the Yorke-Talbot opinion. In a recent article, Travis Glasson has convincingly argued that the opinion was primarily solicited by Anglican missionaries seeking the means to allow for easier conversion of the slaves to Christianity (given that the idea that “baptism bestows freedom” had been present in English thought for a long time). The slave owners only started using this opinion afterwards, when they found out the potential benefits it offered them.34 In any case, given the benefits to slaveholders, they were quick to try and ensure that the opinion became well known.35
Things did not end there. A 1732 Act of Parliament (“For the more easy Recovery of Debts in his Majesty’s Plantations and Colonies in America”) gave rich Englishmen with an interest in the slave trade even more reason for joy. This act, made in the wake of an economic slump in the colonies (and the accompanying defaults), allowed English merchants to prove their debts and obtain judgments against colonial debtors in English courts. More importantly, for the purpose of settling debts, slaves were to be treated as personal property.36
The Yorke-Talbot opinion would only become more important in the ensuing years, as Talbot became Lord Chancellor in 1733, and Yorke (now known as Lord Hardwicke) became Chief Justice of the King’s Bench. Upon Talbot’s passing in 1737, Hardwicke succeeded him as Lord Chancellor. Whilst in this position, Hardwicke got the opportunity to give his opinion sound footing in law (or more exactly, equity37) in the case of Pearne v. Lisle in 1749. In this case, the plaintiff, the owner of fourteen slaves in Antigua, had an agent over there who had hired the slaves out to the defendant. The defendant refused to pay the sum due for the use of these slaves. As the defendant, who was in England at that point, was planning to leave England for Antigua, the plaintiff asked for an order of ne exeat regno.38 Hardwicke refused to grant this. He first expounded on the nature of the demand (all obiter dictum). He claimed that trover would lie for a negroe, that Smith v. Gould was determined on a technicality (thus refuting its value), and that the idea of English freedom carried no weight. Furthermore, he equated villeinage with slavery (“There were formerly villains or slaves in England”) and denied that this institution was abrogated. As to the reason for discharging the order (the ratio decidendi), Hardwicke believed that the laws of the colonies and the laws of England were broadly the same (“All our colonies are subject to the laws of England, although as to some purposes they have laws of their own”), which meant that the plaintiff could ask for justice to the courts of Antigua. This made rendering the order ne exeat regno unnecessary.
This position can be well contrasted with Holt’s words in Smith v. Brown and Cooper. Clearly, Lord Hardwicke believed in a uniform view of the laws of the colonies and the laws of England. With such a vision, Hardwicke obviously had to come to the conclusion that slavery, which was clearly recognised by positive law in the colonies, would have to be legal according to English law as well. Otherwise there would seem to be an irreconcilable conflict between an English common law not allowing slavery on the one hand and, on the other hand, Englishmen taking their common law with them to the colonies and allowing for slavery.39 Such a contradiction could not be allowed to exist in Hardwicke’s framework. Scholars do disagree on the practical importance of this case, and whether it was well known.40
Apparently though, even Lord Chancellors could disagree on the topic. The final case on slavery before Somerset v. Stewart, Shanley v. Harvey, was decided in 1762 at the Court of Chancery of Hardwicke’s successor, the Earl of Northington. In this case, the Court had to deal with a bill for an account of personal estate by the administrator of a deceased person against that person’s negro slave (according to the report, an hour before dying, the deceased person gave a large amount of money to her slave).41 It is unclear how the status of the slave became an issue in the litigation, but the Earl of Northington dismissed the bill and mentioned that “As soon as a negro sets foot on English ground, he is free”.42 Scholars believe the case to have been little known and to have had little effect on subsequent cases.43
Undoubtedly, there are other instances on which the issue of slavery according to English law arose, though they did not play a major role in Somerset v. Stewart.
For example, Granville Sharp himself referred to two other cases that allegedly argued in favour of the illegality of slavery on English soil. In the case of Gallway v. Caddee, decided in Guildhall, it was ostensibly declared that the plaintiff could not claim the defendant, a negro, because the court declared defendant to be “free on his first setting foot on English ground”. Likewise, in the case of De Pinna v. Henriques (also decided in Guildhall), verdict was apparently given for the defendant, who protected “a poor Negro woman, claimed by the plaintiffs as their slave”.44 These local cases are most certainly fruitful avenues for further research, as our current knowledge of their importance or unimportance is limited (Sharp learned of Gallway v. Caddee because “[he] accidentally met with a gentleman, who was present at this trial”45).46
Other instances also confirm a growing interest in the issue in the 1760s, when the black presence was at its apex. For example, Rabin points at the existence of a letter in The Gentleman’s Magazine in 1764 which protested against the importation of “Negroe servants” into England. Likewise, she also pointed at the work of a local justice of the peace, John Fielding (1721–1780), who likewise complained about West Indian slave owners bringing their slaves to England to serve them.47 Finally, another legal official spoke out on the issue: Lord De Grey (1719–1781), who was Attorney-General in 1766–1770 before being appointed as Lord Chief Justice of the Common Pleas in 1770. In a private case that Sharp knew about, but De Grey prohibited him from publishing (or so Sharp claimed), De Grey held that there could be “an Interest by Contract in the Service of this Female Slave. But no property in her person by the Law of this Country”.48
4.2.2.4 Scholars and Slavery: Confirmation of Near Slavery?
Given that we have now seen some case law seemingly going “pro and against” allowing slavery in England in both the courts of common law and equity, one might hope that contemporary jurists would shed some light on the status of slavery.
First, whilst there are no apparent traces of lawyers and jurists upholding the idea of the freedom principle in England before the second half of the seventeenth century, there are clearly some pronouncements on the issue shortly afterwards. Second, by far the best writer to turn to for the eighteenth century would be William Blackstone (1723–1780), the Vinerian Professor at Oxford University. His Commentaries on the Laws of England, besides arguably being the first comprehensive survey of English law since Bracton, were also written between 1765–1769, right after Shanley v. Harvey but before Somerset v. Stewart.
As concerns the latter part of the seventeenth century, Van Cleve found some scholars referring to the situation of slaves coming to England. The first one was Edward Chamberlayne (1616–1703), a famous English writer who wrote his Angliæ notitia, or The present state of England in 1669, to give an overview of the social-political conditions of seventeenth century England. In a chapter on servants, Chamberlayne wrote that a slave in England “is upon landing ipso facto free from Slavery, but not from ordinary service”. We do not know where Chambelayne got this idea from, but it does have to be borne in mind that he was well-versed in the civil law, having received law degrees from Oxford and Cambridge.49
This civilian influence is even clearer in Thomas Wood’s (1661–1722) A New Institute of the Imperial or, Civil Law, which was the standard treatise on the civil law in the eighteenth century Anglo-American world. When discussing Book I of the Institutes, Wood also touched upon the subject of slavery. It is clear that he had read the works of Dutch lawyers, as he referred to Vinnius and Groenewegen to assert that slaves might claim their freedom in various European countries. Although neither of these two lawyers referred to England when discussing the freedom principle in their own work, Woods added his own country as one where slaves could claim their freedom before the courts.50 Given the lack of English sources to which Wood refers, it seems rather unrealistic that Wood actually conveyed the state of English common law in order to assert that slaves could claim their freedom in England. More realistically, it must have seemed impossible to him that England would not boast the same freedom tradition as could be found on the continent, which would explain his addition of England.
One scholar more versed in the common law was Charles Molloy (1640–1690). He wrote De Jure Maritimo et Navali, the most popular book on the English law of naval trade in the eighteenth century. Given the importance of the slave trade in eighteenth century naval trade, it is not so surprising to find Molloy discussing slavery. Interestingly, Molloy mentioned that “[as regards slaves] Trover is not maintainable by the Laws of England”. This is all the more interesting, given that no (known) common law court had yet pronounced itself on this issue! However, he immediately qualified this statement by adding that “There may be a servitude which may amount to a labour or suffering equal to that of Captives”.51 This cannot be equated with a full freedom principle pronouncement, as Molloy simply stated that there cannot be an absolute property interest in slaves in England.
These works are interesting because they seem to infer that the issue of slavery in England might have been discussed more than we currently believe, although it is tempting to note the influence of a civil law background in two of these works. Likewise, two of them assert that while pure chattel slavery did not exist in England, the right of service might continue. This seems very much like a confirmation of “near slavery”.
What did William Blackstone, arguably the most important eighteenth century English jurist, think? It is in the first book of his Commentaries on the Laws of England that we find his views on slavery. They are stretched out between two parts of that book (Chap. 1: Of the Absolute Rights of Individuals and Chap. 14: Of Master and Servant). In the first chapter, Blackstone lauded the political and civil liberties of England. He believed that the English spirit of liberty was so deeply implanted in the English “constitution” that the moment a slave landed in England, he fell under the protection of the laws and became eo instanti a freeman with regard to all natural rights.52 To substantiate his point, he gave Smith v. Brown and Cooper as an authority. However, this far going statement must be contrasted with what is subsequently said in Chap. 14. Here, Blackstone repeated that pure and proper slavery cannot subsist in England. But he continued by adding a qualifying clause: “with regard to any right which the master may have acquired, by contract or the like, to the perpetual service of John or Thomas, this will remain exactly in the same state as before”.53 English soil did not seem to be fully liberating then, although the extent to which a master’s right in the “slavish servant” still existed remained unclear.
Granville Sharp was incensed by what he found in Blackstone and used him as an argument to assert the illegality of slavery in England. However, Blackstone himself was clearly ambivalent on the issue. In correspondence between him and Sharp, he even clarified that “I only desired not to have a Passage cited from my first Edition as decisive in favour of your Doctrine (Book 1. Chap. 1 which I thought I had sufficiently explained and guarded by what followed in Chap. 14 […]”.54
Much has been made in historiography of what occurred next. In the next edition of Blackstone’s Commentaries (the first book already moving to its second edition in 1766), the content of the statement of Chap. I had changed. England still had its “spirit of liberty”, but this time, a slave only “so far becomes a freeman [as he falls under the protection of the laws]; though the master’s right to his service may probably continue”.55
Though this apparent change of heart was already noted by contemporaries during Somerset’s case, F. O. Shyllon has gathered a host of evidence to show that the change of the sentence in Chap. I was probably made at the advice of Lord Mansfield, the judge who would have to decide the case of Somerset v. Stewart (and a long-time friend of Blackstone).56 Although Shyllon focused on the intention of Mansfield, Oldham believes that one could equally well adopt a neutral reading of Lord Mansfield’s role. The inconsistency between Chaps. I and XIV would have been quite clear to any good lawyer, and pointing this out did not necessarily reflect Mansfield’s own intentions.57 What is clear, however, is that Blackstone’s epoch does not bring us much closer to a clear statement of the law of slavery in England.
4.2.2.5 Slavery and English Law at the Eve of Somerset’s Case: Ambiguity or Consistency?
What can we make of this dozen or so cases by English royal courts before 1772? Basically, two approaches seem possible, and both have some merits.
The first one seems to be followed by a majority of recent scholars on the state of slavery in England, and they posit quite a pessimistic vision of what these cases can teach us. Whereas some commentators still cautiously held that English law was “unsettled”58 or “suggesting several directions in which the law of slavery might evolve”,59 others deemed the state of slavery to be “confused and uncertain”,60 “a determined attempt [by the courts] to avoid the issue”,61 “producing considerable ambiguity”,62 “far from coherent”,63 “piecemeal and contradictory”64 or even “in hopeless disagreement”,65 to cite but a few.
Against this viewpoint, it is remarkable how George Van Cleve seems to be the first scholar to offer a different narrative, arguing in favour of a two-pronged framework for the state of slavery in England before Somerset. One part of his work focused on the exact contours of slavery in England. The other part concerned the relationship between English laws and colonial slavery laws. As concerns the former part, Van Cleve proposed to look at English law, not by asking whether slavery was legal in England, but by looking at the issue from a conflict of laws perspective.66 His approach leads to a conclusion that the English courts seemed to create “near slavery” (or “slavish servitude”, to quote Holt) for slaves coming to England. The idea of Van Cleve is that, whilst common law courts did not recognize classical chattel slavery, and that the status of slaves who came to England was governed by English law, they were not fully emancipated either.67 Second, to explain for the cases diverging from these broad principles, such as Pearne v. Lisle, Van Cleve asserts that such cases stem from the views of individual judges on the relationship between English law and colonial law. As Holt believed in strict independence between the laws of England and the laws of the colonies, curtailing slavery in England would not have negative effects for the laws of the colonies.68 Such a dualistic vision was impossible in Hardwicke’s view as he believed in broad legal uniformity between England and the colonies. As a result, he must have felt that his decision could reverberate in the colonies. Consequently, Pearne v. Lisle had to decide that slavery was also legal in England, as it would be easy to claim, in Hardwicke’s view, that, if held otherwise, colonial statutes on slavery were “repugnant” to English law and thus liable to be declared void.69
I believe Van Cleve’s two ideas help to explain many of the above-discussed slave cases. However, I am in doubt whether these concepts are able to adequately explain everything. For once, it should be noted that it was Chief Justice Holt who, in the case of Blankard v. Galdy of 1693, spoke about the distinction of conquered colonies and discovered colonies and the different application of English laws in them. It seems difficult to reconcile this with the idea that Holt might have rendered his judgments because he knew that they would not apply to the colonies. Clearly, if his reasoning in Blankard v. Galdy was to be followed, these judgments would have had practical effects for the discovered colonies. Likewise, if the vision of broad interdependence between colonial laws and English laws became increasingly popular after 1720, it is more difficult to explain the case of Shanley v. Harvey, where this interdependence was seemingly not taken into account.70