Slavery at common law

Slavery at common law in former colonies of 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. Within 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, untrammeled by the "paralysing hand of the Parliamentary draftsmen".

Some groups assert slavery was not recognised as lawful, 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 nuanced and complex through the relevant time period.

For most of the early common law history, the courts were not called upon to consider the position in relation to slavery. However, the law did, from at least the time of the Magna Carta of 1215 recognise that all persons had a basic right to liberty, and it was recognised before that date that persons had a basic right not to be the subject of assaults by others. Accordingly, it has been subsequently argued (most famously by Granville Sharp in Somersett's Case) that as slavery usually involved one or both of these things, it would only be lawful if there was positive legal impetus for its legality. However, this analysis does not square particularly well with the law of the time as a whole; serfdom, and later villeiny, involved both a loss of freedom and in certain circumstances the law permitted physical chastisement of serfs, villeins and even indentured apprentices.

In 1102 the Council of Westminster held in London issued a decree: "Let no one hereafter presume to engage in that nefarious trade in which hitherto in England men were usually sold like brute animals." The legislative force of this decree is not certain; it was intended to abolish the trading of serfs in London, but the decree is sometimes cited as authority for the proposition that trading in slaves became illegal in England at that date. Even if that is correct (which is open to question, subsequent cases distinguishing between villeiny (although not serfdom) and slavery), it is clear that the law was not expressed to abrogate the status of either serfs generally, or slaves who were brought to England from abroad. There are also reports relating to 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.[2] 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..

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