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Slave or Free?


The Legal Status of Slaves

The legal position of enslaved Africans in Britain before the abolition of slavery was ambiguous, and further muddied and confused by senior lawyers. Revolutionary uprisings demanding natural justice rocked America in 1779 and France in 1789, but the principles of political and social freedom had limited application, particularly in the case of slaves.


Slaves as Property

Plantation owners in the Americas were dependent upon slaves to ensure high profitability. In Britain, 18th-century laws were designed to support a trade in slaves that was sanctioned by the king and parliament. A decision by the Solicitor General stated that 'Negroes' ought to be 'esteemed goods and commodities within the Trade and Navigation Acts'. Such a ruling permitted slave owners to use property law with regard to their slaves 'to recover goods wrongfully detained, lost or damaged' as they would any other property.

The use of property law meant that the enslaved were considered not humans, but commodities. This view of Africans would have a detrimental and lasting effect on the Black community well into the 20th century. The historian James Walvin concludes that 'the State, as an institution, dehumanized African men, women and children for its own ends'.

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Slaves and Employment

Most plantation owners lived in Britain. They brought their household slaves back with them from trips to the Americas, and used them to perform domestic duties in Britain.

An owner's right to his slave's labour was challenged in court in Middlesex in 1690. Katherine Auker accompanied her master, Robert Rich, a Barbados planter, to England. She was tortured and expelled from his home in England, but Rich refused to allow her to work for anyone else. The court decided that Auker was at 'liberty to serve any person until such time as Rich shall return from Barbadoes'.

Law reports provide ample evidence of enslaved people in England bringing actions to obtain discharge from enforced employment. Well aware of the brutalities of plantation life, they would often do anything they could to avoid returning to the colonies with their masters. But the judgements they received were often contradictory, and did not bring slavery in Britain to an end.

 

Order re Katharine Auker - opens new window
A Black Servant Sues
her Employers, 1690
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The Yorke-Talbot Ruling

One of the justifications advanced by Europeans for the enslavement of Africans had been their heathen and pagan state. But, if being a heathen was reason for enslavement, then might not conversion to Christianity or baptism result in freedom? From 1664 onwards a number of American colonies legislated against manumission (the granting of freedom) in such circumstances, but the legal position remained unclear. Eventually, the British courts were asked for clarification, and in 1729 a joint opinion by the Attorney General (Sir Philip Yorke) and Solicitor General (Charles Talbot) attempted to answer a number of questions concerning the status of slaves. The Yorke-Talbot ruling stated:

We are of the opinion, that a slave, by coming from the West Indies, either with or without his master, to Great Britain or Ireland, doth not become free; and that his master’s property or right in him is not thereby determined or varied; and baptism doth not bestow freedom on him, nor make any alteration to his temporal condition in these kingdoms. We are also of opinion, that the master may legally compel him to return to the plantations.

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The Somerset Ruling

The celebrated Somerset ruling of 1772 concerned a slave's liberty and status as property. The slave James Somerset (or Sommersett) was the property of a Boston customs official, Charles Stewart. Somerset was brought to England. After two years he escaped, but he was recaptured on 26 November 1771 and was forced onto a ship bound for Jamaica. With help from Granville Sharpe, a humanitarian anti-slavery campaigner, a writ of Glossary - opens new windowhabeas corpus was granted by Lord Mansfield, the Lord Chief Justice, ordering the captain of the ship on which Somerset was incarcerated to produce Somerset before a court.

The case was repeatedly adjourned. Somerset's legal team argued that although slavery was tolerated in the colonies, the Court of King's Bench was bound to apply the law of England. Mansfield ruled in 1772 that 'no master ever was allowed here (England) to take a slave by force to be sold abroad because he deserted from his service...therefore the man must be discharged'. And so James Somerset won his freedom.

 

Somerset Case - opens new window
Somerset Case - opens new window
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Lord Mansfield's judgment had a profound effect on slaves. Many of them misunderstood the ruling to mean that slaves were emancipated in Britain. This was not the case. The decision was that no slave could be forcibly removed from Britain and sold into slavery.

Despite Lord Mansfield's ruling, slave owners continued recapturing their runaway slaves and shipping them back to the colonies. Numerous newspaper advertisements of the time show that Black slaves were still being bought and sold in England. A few years later, in 1785, Mansfield himself ruled that 'black slaves in Britain were not entitled to be paid for their labour' (free Black people were, however, paid).

The legal status of African slaves in Britain and its colonies remained unclear until the early 19th century. In 1807, with the passing of the Abolition of the Slave Trade Act, the slave trade became illegal; and 21 years later almost all Black men, women and children held in bondage in the British empire were granted their freedom.

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References and Further Reading

Fryer, P., Staying Power: The History of Black People in Britain, London,1984

Shyllon, F., Black People in Britain 1555-1833, London, New York and Ibadan, 1977

Walvin, J., Black and White: The Negro and English Society 1555-1945, Aylesbury, 1973


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