Lives of the Law by Bingham Tom

Author:Bingham, Tom
Language: eng
Format: epub
Publisher: OUP Oxford
Published: 2013-04-04T04:00:00+00:00

14

‘The Law Favours Liberty’

Slavery and the English Common Law1

Article 4 of the European Convention on Human Rights is not the most familiar provision of that much-discussed instrument. Many who could discourse learnedly on Articles 2 and 3, or 5 and 6, or 8 and 10, would be nonplussed—no doubt only momentarily—if asked to discuss Article 4. The article has been relatively uncontroversial. The United Kingdom has never been held to have violated it.2 The first supplement to the leading English textbook on human rights reports that there have been no developments in this area,3 putting one in mind of the BBC news bulletin on Good Friday in 1930: ‘There is no news tonight’.4

Article 4 provides that no-one shall be held in slavery or servitude. Article 4 of the Universal Declaration opens in identical terms. Article 8 of the International Covenant provides that no-one shall be held in slavery. While there is room for argument about the scope of the qualified prohibition of forced or compulsory labour which some of these instruments also contain, there is none about the unqualified prohibition of slavery and the slave trade, which is not of course to say that both are not to be found in some parts of the world.5 The right to freedom from slavery was the first human right to be protected by international treaty.6 By regulating the conduct of the slave trade in 1788,7 1790, and 1794, by prohibiting the participation of British ships in the Atlantic slave trade in 1807, by making it a felony to be engaged in the slave trade in 1811, by giving statutory effect to bilateral treaties providing for the abolition of the slave trade in 1818,8 and by emancipating slaves throughout its dominions in 1833, this country may fairly claim to have made a major contribution to achievement of this international consensus.

Given this refreshing show of international agreement, it may seem somewhat sterile, or at any rate perversely antiquarian, to review the response of the English (and Scottish) common law to the institution of slavery, the more so since there is a very considerable literature on the subject and the history itself is not for the most part obscure. I seek to justify my revisitation of the topic by suggesting that the issues raised in the course of the story, although now long overtaken by events, yield insights into the practical working of the common law—the courts, the practitioners, the parties—when confronted by questions which, however obvious the answers may seem to those blessed with the godlike gift of hindsight and relieved of the duty of decision, were understandably seen as fraught with difficulty for those who had to answer the questions at the time. But before turning to the history I think I should, in the manner of an operatic composer in his overture, give some foretaste of the themes which are more fully developed as the story unfolds.

Sir Edward Coke declared that ‘[t]he law favours liberty’.9 One hopes that that is generally so;

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