Slavery at common law in the British Empire developed slowly over centuries, and was characterised by inconsistent decisions and varying rationales for the treatment of slavery, the slave trade, and the rights of slaves and slave owners. Unlike in its colonies, within the home islands of Britain, until 1807, except for statutes facilitating and taxing the international slave trade, there was virtually no legislative intervention in relation to slaves as property, and accordingly the common law had something of a "free hand" to develop, untrammelled by the "paralysing hand of the Parliamentary draftsmen".A reference from Cheshire's Private International Law (1936) as to the virtues of developing common law principles without statutory intervention; although quaere the extent to which this was a benefit in relation to slavery. Two attempts to pass a slave code via Parliament itself both failed, one in the 1660s and the other in 1674.
Some scholars assert slavery was not recognised as lawful,Anti-slavery society 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". However the true legal position has been both complex and contested. In the 17th and 18th centuries, some African slaves were openly held, bought, sold, and searched for when escaping within Britain.
Early common law
There was an Irish decree in 1171 "that all the English slaves in the whole of Ireland, be immediately emancipated and restored to their former liberty". The same source indicates that slavery in England was abolished by a general charter of emancipation in 1381. 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Peasants' Revolt, after which a number of concessions were made by the 14-year-old King Richard II, which were later rescinded. Certainly villeinage continued in England, slowly decaying, until the last villein died in the early 17th century.
In later common law cases, none of the foregoing decrees or proclamations were cited or referred to as binding law in relation to the status of slaves generally.
Cartwright's case
In 1569, a man, Cartwright, was observed savagely beating another, which in law would have amounted to a battery, unless a defence could be mounted. Cartwright averred that the man was a slave whom he had brought to England from Russia, and thus such chastisement was not unlawful. The case is reported by John Rushworth in his 1680 summary of John Lilburne's case of 1649. He wrote: "Whipping was painful and shameful, Flagellation for Slaves. In the Eleventh of Elizabeth [i.e., 1569], 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 Slaves to breathe in. And indeed it was often resolved, even in Star-Chamber, That no Gentleman was to be whipt for any offence whatsoever; and his whipping was too severe."In the matter of Cartwright, 11 Elizabeth; 2 Rushworth's Coll 468 (1569); although more commonly cited is the descriptions of the case in the arguments of counsel in the case of James Somersett It is reported that the court held that the man must be freed, and it is often said that the court held "that England was too pure an air for a slave to breathe in."
It is unclear whether the effect of the case was to actually make slavery in England illegal, or rather generally to impose limits on the physical punishment on slaves. In no subsequent common law cases prior to Somersett's case was Cartwright's case cited as authority for the proposition that slavery was unlawful. However, those disputes predominantly concerned disputes between slave merchants (the notable exception being Shanley v Harvey, as to which see below), for whom it would have been commercially unwise to plead that slavery was unlawful.
It has been inferred that, because he was from Russia, Cartwright's slave was white and probably a Christian, although this is not recorded.
African slave trade and the common law
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. In the Caribbean, Barbados became an English Colony in 1624 and Jamaica in 1655. These and other Caribbean colonies became the centre of wealth and the focus of the slave trade for the growing English empire. In 1660, what became the Royal African Company was chartered by King Charles II with a monopoly in the trade.P. E. H. Hair & Robin Law, 'The English in West Africa to 1700', in The Oxford History of the British Empire: Volume 1, The Origins of Empire: British Overseas Enterprise to the close of the Seventeenth Century, ed. Nicholas Canny (Oxford : Oxford University Press, 1998), p. 259 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. Under the lex mercatoria slaves were sometimes treated as chattels, with few if any rights, but the English courts did not always recognise mercantile custom as law, and even in English mercantile law, the subject was disputed. The question arose in English courts because personal actions could be laid in England even if the cause of action arose abroad. In 1698, an act of Parliament, the Trade with Africa Act 1697 (9 Will. 3. c. 26), opened the slave trade to all English subjects. In the 18th century, owners in England would advertise their sales of African slaves and also for the return of runaway slaves.
Butts v. Penny and defining people as property
In 1677, after the Royal African Company went bankrupt, the high court of King's Bench intervened to change the legal rationale for slavery from feudal law to the law of property. In 1677 in Butts v. Penny the courts held that an action for trover (a kind of trespass) would lie for black people, as if they were chattels. The rationale was that infidels could not be subjects because they could not swear an oath of allegiance to make them so (as determined in Calvin's Case in 1608). As aliens, they could be considered as "goods" rather than people for purposes of trade. Chief Justice Holt rejected such a status for people in Harvey v. Chamberlain in 1696, and also denied the possibility of bringing an assumpsit (another kind of trespass) on the sale of a black person in England: "as soon as a negro comes to England he is free; one may be a villein in England, but not a slave." It is alleged that he commented as an aside in one case that the supposed owner could amend his declaration to state that a deed was created for the sale in the royal colony of Virginia, where slavery was recognised by colonial law, but such a claim goes against the main finding in the case. In 1706 Chief Justice Holt refused an action of trover in relation to a slave, holding that no man could have property in another,Smith v Gould 2 Salk 666 (1706); Ray 1274 but held that an alternative action, trespass quare captivum suum cepit, might be available.
Ultimately the Holt court decisions had little long-term effect. Slaves were regularly bought and sold on the Liverpool and London markets, and actions on contract concerning slaves were common in the 18th century without any serious suggestion that they were void for illegality, although the York-Talbot position, discussed below, probably helped to create that legal stability. In 1700 there was no extensive use of slave labour in England as in the colonies. African servants were common as status symbols, but their treatment was not comparable to that of plantation slaves in the colonies. The legal problems that were most likely to arise in England were if a slave were to escape in transit, or if a slave-owner from the colonies brought over a slave and expected to continue exercising his power to prevent the slave from leaving his service. Increasing numbers of slaves were brought into England in the 18th century,In 1772 it was estimated that there was as many as 14,000 slaves in Britain. See J. H. Baker (2002), An Introduction to English Legal History 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. If the courts acknowledged the property which was generally assumed to exist in slaves in the colonies, how would such property rights be treated if a slave was subsequently brought to England?
The Yorke–Talbot slavery opinion
However, the decisions of the Holt court in the wake of the Glorious Revolution had caused sufficient consternation as to the legal status of slaves that some slave owners sought clarity of the law. 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 law officers opined that under English law (i) a slave's status did not change when he came to England, (ii) a slave could be compelled to return to the colonies from England, and (iii) that baptism would not manumit a slave. The opinion cited no authorities, and set out no legal rationale for the views expressed in it, but it was widely published and relied upon. One of the authors of the opinion, Lord Hardwicke (although at the time he was only known as Philip Yorke), subsequently endorsed the views expressed in the opinion (although not expressly referring to it) whilst sitting in judicial capacity in Pearne v Lisle (1749) Amb 75, 27 ER 47. The case revolved around title to fourteen slaves who were in Antigua, and involved a number of technical points as to colonial law. But Lord Hardwicke held that slavery was not contrary to English law, and that as the common law of England applied at the time to Antigua, that slavery was not unlawful in Antigua.
At this time the cases in which the English courts had recognised property in slaves had arisen from purely commercial disputes and did not establish any rights exercisable as against the slaves themselves, if the slave was within the jurisdiction. As with villeins centuries before, the analogy with chattels (as between putative owners) failed to answer the leading question whether slaves could establish their freedom by bringing suit in the courts (as between slave and owner). 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.Bl. Comm., vol I, p 123 Other prominent lawyers, such as Lord Hardwicke and Lord Mansfield, felt that it was better to recognise slavery, and to impose regulation on the slave trade rather than to withdraw from it, since less enlightened nations would reap the benefits of abolition and slaves would suffer the consequences. The "infidel" argument for maintaining African slaves as chattels was abandoned in the middle of the 18th century, since by then many slaves had been converted to Christianity without gaining de facto freedom; and legal justifications for slave ownership were now sought by analogy with the old law of villeinage.
Shanley v Harvey
In Shanley v Harvey (1763) 2 Eden 126, a claim was instituted by Shanley as administrator of the estate of his deceased niece.