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Unequal: the legacy of English law on slavery?

In the first of a series of blogs for Black History Month, Walker Syachalinga and Martyn Day from the international department look at how the law treated African slaves during the slave era and consider how justice and equality can be achieved for those who continue to suffer from the legacy of slavery.

Posted on 05 October 2020

Britain’s past involvement in slavery remains a live and contentious issue over 200 years after the abolition of the slave trade. In July this year, the issue returned to public consciousness when the Prime Minister of Barbados appeared on Good Morning Britain to call on Britain to pay reparations for its past involvement in slavery. This blog provides a starting point for examining how the law treated African slaves during the slave era and what happened at the time of emancipation.
 

Unequal under common law

By way of background, a 1729 joint opinion of the attorney and solicitor generals, known as the Yorke-Talbot Opinion, stated that a slave brought to England by his master did not cease being one by virtue of being subject to English law or being baptised. Accordingly, slaves could be forcibly returned to the plantations. Although this “after-dinner opinion appeared to put slavery on a far stronger legal footing1, the fact that the view was expressed in a non-legally binding opinion rather than a judicial ruling meant that the status of slaves remained ambiguous.
 
Further confusion ensued with the decision in Somerset v Stewart (1772) Lofft 1, 98 ER 499, where Lord Mansfield determined that a master could not forcibly remove a slave from England to be sold abroad. While this decision was well received and resulted in the right of slaves to challenge removal by reliance on habeas corpus, it remained unclear whether slaves in England were free under the common law. Lord Mansfield himself confirmed in the later decision of R v Inhabitants of Thames Ditton (1785) 4 Doug KB 300 that Somerset went no further than the proposition that a master could not forcibly remove a slave from England to be sold abroad2.
 
The ambiguity of that decision was in sharp contrast to the clarity of the Scottish courts in Knight v Wedderburn (1772) St Tr 2-7, where Edinburgh’s Court of Session upheld the Sheriff of Perth’s ruling that “the state of slavery is not recognised by the laws of this kingdom, and is inconsistent with the principles thereof”. The practical effect of English law’s ambiguity was that African slaves continued to be treated unequally under the law when compared to white inhabitants of England. Unsurprisingly, advertisements for the sale of slaves and notices for the return of runaway slaves continued in the years after Somerset, as did the abduction and deportation to slave plantations of those who were caught.
 

Unequal under statute

The Abolition of the Slave Trade Act was passed in 1807, making it illegal to trade in slaves in certain British colonies. However, it was the Slavery Abolition Act 1833 that finally emancipated slaves, albeit in a manner that illustrated the unequal treatment of African slaves and that in some cases made their plight even worse. The Government borrowed £20 million to fund the 1833 Act – this was approximately 40% of the Government’s total annual expenditure at the time and around £17bn in today’s money. The purpose of the £20m was to compensate slave owners for the loss of “property” in the emancipated slaves. This sum was not fully paid off by the taxpayer until 2015. Astonishingly, not a penny of that money was paid to any of the newly emancipated slaves.
 
The emancipated slaves were now compelled to become apprentices for four to six years – during which time they would continue to work for free for their former masters who had just been compensated. Historians note that “[w]ith the Slavery Abolition Act, the duty to punish former slaves now shifted from individual slave owners to officers of the state. A state-funded, 100-person corps of police, jailers and enforcers was hired in Britain and sent to the plantation colonies. They were called the ‘stipendiary magistrates’. If apprentices were too slow in drawing water, cutting cane, or washing linens, or if they took a Saturday off, their masters could have them punished by these magistrates … One apprentice, James Williams, in an account of his life published in 1837, recalled he was punished much more after 1834 than before.”
 
Professor Sir Hilary Beckles, Chancellor of the University of the West Indies argues that the 1833 Act was racist in so far as Parliament positively categorised African slaves as property in order to legitimise the payment of compensation to former slave owners3. Damningly, Sir Hilary notes that while the treasury paid £20m in compensation to former slave owners, the slaves themselves were forced to pay the equivalent of a further £27m in free labour provided to former slave owners as part of the apprenticeship scheme. African slaves therefore paid more for their freedom than even the British government, and as a result received unequal treatment under both the common law and statute.
 

Contemporary attempts at justice

In 2014, Leigh Day assisted the CARICOM Reparations Commission, an organisation of Caribbean countries calling for reparations for the victims of genocide, slavery, slave trading, and racial apartheid. While calls for reparations were dismissed by the UK government in 2015, the Prime Minister of Barbados recently stated: “I do not know how we can go further unless there is a reckoning first and foremost that places an apology and an acknowledgment that wrong was done, and that successive centuries saw the destruction of wealth and the destruction of people.”
 
As we mark Black History Month, one hopes renewed attention will be paid to such calls and the wider quest for justice and equality for those who continue to suffer from the legacy of slavery. Leigh Day is committed to pushing the boundaries of the law to achieve positive change and equality for those still suffering historic wrongs.

 

Walker Syachalinga
 


1David Olusoga, Black and British, A Forgotten History (2016)
2Andrew Lyall, Granville Sharp’s Cases on Slavery (2017)
3Hilary Beckles, Britain's Black Debt: Reparations for Caribbean Slavery and Native Genocide (2013)

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Martyn Day

Martyn Day

Martyn is the joint founder of the firm and is the senior partner