4.3 Conclusion

In the period 1650–1833, the English legal order was faced with slavery as a result of the Atlantic slave trade. The courts had to deal with this conflicts of law issue that arose when colonial masters took one or more plantation slaves with them as a status symbol, or as a cheap means of labour.

Before Somerset’s case in 1772, English courts only had the possibility to address this issue in an indirect way, as the few conflicts that did arise were usually related to the right of property in the slave, but never concerned the slave, seen as a person, himself. Undoubtedly, the Yorke-Talbot opinion had dissuaded many from pleading in favour of the slave’s freedom, and up until some years before Somerset, abolitionism was a marginal current of thought. When the courts addressed the issue, they seemed to allow for some form of “near slavery” in England. Full chattel slavery was not acknowledged, but neither were the slaves fully emancipated. England’s air, at this time, was clearly impure.

At one point in time, it does seem reasonable to say that English law fully recognised the status of slavery, conferred in an English colony, in England. Chancellor Hardwicke, in the Yorke-Talbot opinion and Pearne v. Lisle, clearly conceived of an idea of a uniform imperial law, which had to be able to account for slavery. Parliament did not make any statutes on the issue, but given the fact that the case law allowed for “near slavery”, and maybe even “real slavery” during the tenure of Hardwicke, the need for planters to file requests to Parliament must have been more limited anyway. At the same time, these theoretical hassles have to be placed in their perspective.

The landmark case of Somerset v. Stewart did not usher in a revolution. Rather, it should be seen as a return to the idea of “near slavery” that had been developed by English courts in the first half of the eighteenth century. Mansfield did not emancipate the English slaves, but his decision was a warning. Clearly, the boundaries of what was to be allowed in England went less far than what the Yorke-Talbot opinion had delineated half a century earlier. The holding of the case was open to interpretation, but given Mansfield’s earlier comments, he must have been well aware of the confusion he created, and willing to allow the case to mean different things in different contexts.

In the period after Somerset, the abolitionists managed to seize control of one of those possible meanings of Somerset v. Stewart, and as public opinion slowly shifted in favour of abolitionism, English law followed its lead. At first, the lower courts, filled by laymen construed a broad meaning of Somerset v. Stewart. They were to be followed by the higher courts after the cloud of Mansfield himself had disappeared, although touching the English soil would still not protect the slave upon his return to the colonies.

In conclusion, from the seventeenth to the early nineteenth century, English courts were only to a very limited extent responsible for giving a measure of protection to black slaves arriving in England, and Parliament played no role at all. The English legal order reacted to the issue of black slavery by respecting the master’s property rights whilst in England, and only imposed some limitations. “Near slavery” became the legal condition for blacks in England, as judges were possibly also wary of the impact of their decisions in the colonies. When the English common law courts finally affirmed the freedom principle of England, an idea which had been touted by Harrison long before but seemingly forgotten during the era of black slavery, they did so not as legal revolutionaries, but rather by confirming an abolitionist consensus that had already come in place.