The article by Colin Bobb-Semple, “English common law, slavery and human rights” (2006-7) 13 Tex. Wesleyan Law Review 659 will now be discussed with particular emphasis on the author’s discussion of the role played by law in establishing, maintaining and eventually ending slavery. This article is based upon the subject of slavery and villeinage within the British colonies and England. It also mentions how the issue of slavery was dealt with via legal processes and the inhumane treatment many African slaves suffered at the hands of foreigners such as Europeans.
It describes a number of cases that were believed to have influenced or partly contributed towards the abolition of slavery, including the case of Somerset v Stewart. This case is notably known for the reluctance of Lord Mansfield in coming to his controversial decision. It also mentions the shocking case of the Zong slave ship, legally known as Gregson v Gilbert. The way these cases were dealt with in the English courts is discussed and their role played in leading the way to abolishing slavery.
The factors that led to the development of vital modern day statues such as the Human Rights Act 1998 are revealed. A number of British colonies are mentioned within the article, including Guyana and Demerara. The function of English common law and the ruling of it within these colonies during the 18th and 19th century is discussed. The important 2005 case of House of Lords in A & Others v Secretary for the Home Department, again relating to Human rights issues, is discussed and its outcome also outlined. Also discussed are important events and so called ‘controversial’ figures of the particular time period.
These figures and events played a part in influencing slaves to rebel against plantation owners, some to the extent that even led to uprisings like that of Berbice in 1763 by Kofi. One can see when reading this article that one of the author’s main arguments is whether English common law was applied justifiably in relation to slaves as many of them were denied their basic human rights. Also it argues that this slave ‘culture’ was actually present in England long before the African slave trade in the Americas.
This is referred to as ‘Villeinage’ and can be dated back to 1066 after the Norman Conquest. This was when peasants were forced to work for lords on their manors in return for tenure. These peasants may have had unfree status and were bound to work for the lords, virtually not far from becoming slaves. They were given various different jobs and tasks to perform each day. It was not until the 14th and 15th century that this culture of villeinage started to decline. Instead money was paid by tenants for tenure.
So from this one can see that the concept of slavery was already present even though it may not have been as brutal and savage as the African slave trade. The issue of the way common law was applied to slaves is touched upon throughout this article. More particularly it points out that the English common law classed and regarded slaves as merely ‘possessions’ or ‘goods’. The author argues that pre-slave trade Africa consisted of flourishing kingdoms long before even the birth of Jesus. It is also stated that it was shocking to see Africa essentially being taken over by slave traders who comprised of namely Europeans.
This transition of Africans from these kingdoms to slaves being bound to foreign countries is described as a “striking feature about West Africa in the eighteen and nineteenth century. ” The author describes the obvious ethical issues that resulted from slavery such as people being taken away from their families, this is quoted as “They were torn from their families and friends and often arrived at the coast in a weak and exhausted condition. ” When reading this article, it can be seen that slavery was common throughout the British colonies and was considered by many as a means of financial gain.
The consideration of the human lives involved was not seen as important. This can be seen in the article when it quotes “One of the fundamental principles of British colonial slave laws was that slaves were regarded as chattels. ” This is also known as personal property. The article also describes the mistreatment of slaves on plantations, particularly in Guyana, such as the story of America who suffered a miscarriage due to being unjustly whipped by a plantation manager. During the slave trade, there were many cases that came before the English courts for consideration.
The earlier cases in this article are generally described as non beneficial to slaves and if anything the outcomes outline the labelling of slaves as material possessions as mentioned earlier. This is illustrated in the case of Butts v Penny where black people were considered as infidels and Chambers v Warkhouse where black people were compared to musk cats and monkeys. The decisions in these cases were thought to have helped maintain slavery and the author’s argument may be that if such cases were decided differently, then this may have had an effect on the perspective on slavery as a whole.
The author represents law’s role as a rather conservative force in relation to the abolition of slavery. For example the author describes the development of human rights as a gradual process which took hundreds of years to become what it is today. The Magna Carta 1215 stated that “no freeman could be arrested or imprisoned except under due process of law”. However this did not apply to slaves who were not free. The Bill of Rights 1688-89 is described as unwritten and limited and abolished rights in other countries.
It was not until the landmark case of Somerset v Stewart that the law started to become favourable to slaves. In this case Lord Mansfield allowed a black slave to go free under the Habeas Corpus rule, arguing the air of England was too pure for a slave to breathe. However this did not free all the slaves in England as some may have thought. The author describes how Lord Mansfield was reluctant in freeing the whole slave population due to his knowledge of commercial law and his awareness of the potential financial loss to slave owners.
Nevertheless it should be noted that after this case at least 15 other cases were decided in favour of slaves. For this reason some saw this as a turning point for the slave trade and the role of the law helped to eventually end slavery. The slave trade continued, but the author describes the laws role as more beneficial at this point as acts and laws were passed which favoured slaves such as the 1797 Act which excluded ‘negroes’ from being used to pay debts. It was not until The Slave Trade Acts that the situation for slaves notably changed.
The First was in 1805, limiting the importation of slaves. Illegal slave trading continued even after 1805, and the author describes other contributing factors which led to the eventual abolition of slavery. These factors were notable events such as uprisings led by figures opposing slavery. One of these uprisings was led by Rev. John Smith who was a Christian missionary in Demerara. Smith preached to slaves the Biblical story of Moses and how he led the enslaved Israelites to freedom to their promised land. The slaves began relating the story to their own situation.
This is thought to have ‘inspired’ the slaves to start to rebel. The Demerara uprising in 1823 was led by Quamina and Jack Gladstone. The slaves demanded their own rights and to be freed. The uprising was seen as an embarrassment to plantation owners, but ended fatally for many slaves. A large number of Africans were sentenced to death, some were granted clemency. Rev. Smith was held partly responsible for the uprising and died in prison before clemency was granted. Jack Gladstone was banished to St. Lucia and Quamina was shot dead.
However the trials were described as unfair as many officers hearing the trial had been involved. Bertie Ramcharan, who was the former UN Acting High Commissioner for human rights, stated the Africans awareness of the abolition of slavery, the law and their personal rights helped play a part in the growth of human rights universally. After the slave trade, human rights continued to develop, even after 228 years after the Somerset case, the Human Rights Act 1998 was brought into force. This was incorporated into English law to give individuals more rights.
In conclusion, one may say that this article was by far in favour of the abolition of slavery. It constantly questions the legitimacy of slavery and raises the ethical issues that were involved. The author describes the law as a gradual but ever-changing force that primarily played the role not only to establish but to also maintain and sustain slavery. It is then described the law as a force that later transitioned into the role of abolishing slavery. This, the author claimed was done with the aid of important figures that opposed slavery such as Rev. Smith and Granville Sharp.
However even though the author describes the Somerset case as a landmark case for slaves, he states that the decision did not help slaves abroad which it may well have done if the outcome was different and the statement by Lord Mansfield was different. A huge emphasis is put on this case and on the decision of Lord Mansfield. This can be seen even in the conclusion of the article, the author believes that not enough was done by Mansfield in order to protect human lives, and the opportunity to set a precedent which stated the common law was superior to ordinary slave law was not taken.
It quotes “Lord Mansfield and his colleagues, sitting in the highest common law court in England, did not, have the courage to use equitable principles to embellish the common law. ” The author also points out that the part played by the English common law should be committed to memory, when he quotes, “The common law’s ability to protect slaves from torture and inhuman treatment in the colonies is a matter of public record.
” One may presume that here the author is stating that people should learn from the slave trade and not let history repeat itself. It is not deniable that slavery still exists in parts of the world today but it is shown by the author that undoubtedly the various acts that were passed in the 19th century to abolish slavery not only led to the freedom of slaves, but also led to and helped shape the basic human rights that are available in today’s society.