The past really is a foreign country

By Legal Eagle

The past is a foreign country: they do things differently there. (L.P. Hartley, The Go-Between)

I was forcibly reminded of the truth of Hartley’s statement while undertaking some legal research today. I have been conducting research into the doctrine of specific performance, which is when a court orders a party to a contract to perform his or her obligations. Generally speaking, the default remedy for breach of contract is compensatory damages (typically measured according to the market value of the subject matter of the contract) but where the subject matter of the contract is unique or difficult to value or difficult to obtain, then the court will order specific performance, as damages will not be an adequate remedy. I collect specific performance cases involving contracts which have interesting subject matter, but I got a little more than I bargained for today.

I came across a specific performance case called Pearne v Lisle (1749) Amb 76; 27 ER 47, and it has disturbed me immensely since I read it this morning. Briefly, the facts are these. The plaintiff entered into a contract in Antigua (via his agent) whereby he supplied 14 African slaves to the defendant for a rental of £100 per year. The plaintiff alleged that the defendant had failed to pay him the rental for two years, and had failed to deliver the slaves to his agent upon request. He could not seek relief in a common law court because all of his witnesses were overseas, and accordingly he went to the Court of Chancery to seek specific performance of the contract.

Among other things, Lord Hardwicke decided that the owner of a slave could bring an action in trover (now known as conversion) for wrongful possession of a slave because ‘it [the slave] is as much property as any other thing’. He said that the common view that a slave would be emancipated if he set foot in England or converted to Christianity had no basis in law. Despite the fact that no person could be a villein (serf) in England any more, if a person came to court and said he was a villein to another, Lord Hardwicke said there was no law in England to prevent it. (In passing, I’m not precisely sure why someone would want to make themselves a villein before a court?)

Ultimately Lord Hardwicke decided that the plaintiff should be left to his legal remedy in Antigua and refused to specifically enforce the contract. The part that really freaked me out was this bit at page 77 of the nominate reports, where he justified the refusal of specific performance:

As to the merits, a specific delivery of the Negroes is prayed; but that is not necessary, others are as good; indeed in the case of a cherry-stone, very finely engraved, and likewise of an extraordinary wrought piece of plate, for which bills were brought in this Court, they could not be satisfied in any other way; their value arose on circumstances peculiar to themselves, but in other things, as diamonds, one may be as good as another… . The Negroes cannot be delivered in the plight at which they were at the time of the demand, for they wear out with labour, as cattle or other things; nor could they be delivered on demand, for they are like stock on a farm, the occupier could not do without them, but would be obliged, in a case of sudden delivery to quit the plantation.

As a point of law, he’s right – if the subject matter of the contract has a market value then it is highly likely that damages will be an adequate remedy. And at that time, there was a market for slaves according to which damages could be measured. But, seriously, he’s saying that a finely engraved cherry-stone has more unique value in the eyes of the law than these poor slaves. Then he compares the slaves to cattle or farm stock. And the bit about ‘they wear out with labour’ is heartbreaking.

In fact, it’s not surprising that Lord Hardwicke held as he did: previously, when he was known as Sir Philip Yorke, he and Charles Talbot gave advice to slave merchants saying that slavery was legal. He was responding to a number of cases decided by Lord Holt, namely Chamberlain v Harvey (1697) 1 Ld Raym 146; 91 ER 994 and Smith v Gould (1705–07) 2 Salk 666; 91 ER 567, in which Lord Holt had apparently held that slaves could not be property.

It may be heartening to know that, some 23 years later, Lord Mansfield effectively ignored Pearne v Lisle in the famous case of Somerset v Stewart (1772) Lofft 1; 98 ER 499 (also known as Somersett’s Case). In that case, an African-American slave named James Somerset escaped from his English owner, Charles Stewart, when Stewart brought Somerset back to England. Stewart recaptured Somerset and had him imprisoned on a ship called the Ann and Mary, intending to send him to Jamaica to be sold. Various supporters of Somerset sought a writ of habeas corpus and Somerset was brought before the King’s Bench for determination whether his imprisonment was legal. Lord Mansfield had to walk a fine line: he did not want to undermine the English economy by effectively invalidating slavery contracts, and in fact specified that such contracts were valid. Nonetheless, although he purported to pay ‘due attention’ to the Yorke-Talbot advice, he held that Somerset must be freed. Moreover, he said at page 19 of the nominate reports:

The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory: it’s so odious, that nothing can be suffered to support it, but positive law.

Before he began his deliberations, Lord Mansfield said to the parties ‘fiat justitia ruat caelum, let justice be done whatever the consequence.’ It seems clear that his Lordship did not want to decide the case: he enjoined the parties to consider entering into an agreement, and also said at another point, ‘Mr Stewart may end the question, by discharging or giving freedom to the negro.’ (Do you think he’s trying to give Stewart a hint?)

The effect of this decision, and exactly what Lord Mansfield held in this case, continues to be hotly debated to this day. The official reports apparently differ from a variety of newspaper reports, including one in General Evening Post, London, June 21–23, 1772 (available in Appendix 1 here) which seems to indicate that Lord Mansfield actually stated at the end of his judgment that, ‘The state of slavery is of such a nature, that it is incapable of now being introduced by Courts of Justice upon mere reasoning or inferences from any principles, natural or political’. The italicised words differ from the reported version excerpted above.

The decision was understood by the public as meaning that slavery could not exist in England. However, in subsequent correspondence, Mansfield wrote that ‘nothing more was then determined, than that there was no right in the master forcibly to take the slave and carry him abroad.’ He insisted that he had gone ‘no further than to determine the Master had no right to compel the slave to go into a foreign country.’ Nonetheless, it seems that the decision gave a boost to the abolitionist movement. In this piece in volume 24 of the Law and History Review, George Van Cleve says:

Despite his threat to rule squarely for one side or the other, Lord Mansfield’s judgment instead created a compromise designed to defuse the politically dangerous slavery issue, but it was a compromise that had important implications for colonial slavery.

Given Harrison [Harrison v Evans, a case where Mansfield held that the common law could not create a crime where Parliament had decided none existed], Lord Mansfield surely appreciated that for the slaveowners, his decision was a “poisoned chalice.” A positive law rationale without emancipation preserved the short-term political—but not the long-term legal—status quo on colonial slavery. Although Mansfield protected the colonial status quo until Parliament acted, he did so by creating a legal framework that also deliberately devalued slave property and did as much damage to the legitimacy of the slaveowners’ position as possible, short of an outright ruling against them. Mansfield’s deliberate devaluation of slave property had foreseeable adverse consequences for slavery’s continuation throughout the empire. Not surprisingly, major slaveowner representatives immediately and vigorously attacked the decision, while abolitionists applauded it.

Mansfield’s comment in the judgment that slavery had originated not just in England but in every country solely from positive law was a deliberate effort to demolish legal justification for slavery on any other basis, in England as well as in the colonies. Mansfield’s positive law holding meant that slavery existed only within those jurisdictions where positive law sanctioned it, and only to the extent it was sanctioned. The fact that slavery became entirely a creature of positive law also meant that it could be selectively altered or abolished in the colonies. By the late eighteenth century, the English Crown had limited legal authority to govern in the colonies without Parliament’s acquiescence; therefore, Mansfield’s creation of a positive law framework for slavery in the context of rising abolitionist sentiment laid the groundwork for Parliamentary control of colonial slavery. Perhaps equally important was that making slave property a creature of positive law raised substantial issues about whether compensation to slaveowners would be required if Parliament chose to alter or abolish slavery.

Mansfield’s positive law holding also knowingly devalued slave property by making slave status wholly dependent on the law of individual jurisdictions, which he (and slaveowners) knew meant that slave flight would increase because fugitive slaves could become free or protected against excessive force and compelled return, not just in England but in the colonies.

Purportedly in response to Somerset’s case, a Scottish slave named Joseph Knight brought a case seeking to be freed, and ultimately, on appeal, the Court of Sessions in Edinburgh said that ‘the dominion assumed over this Negro, under the law of Jamaica, being unjust, could not be supported in this country to any extent: That, therefore, the defender had no right to the Negro’s service for any space of time, nor to send him out of the country against his consent: That the Negro was likewise protected under the act 1701, c.6. from being sent out of the country against his consent.’ Knight was then free to marry his fellow servant, Annie Thompson, with whom he had had a child.

Eventually, it took legislative intervention to stop slavery in Britain. The Slave Trade Act was passed outlawing the slave trade, but it was still legal to possess slaves. In 1833, the Slavery Abolition Act was passed, which led to the gradual abolition of slavery in the British Empire.

Who would have thought that research into specific performance would have unearthed something so fascinating and poignant about the abolition of slavery in Britain?

16 Comments

  1. Posted September 5, 2012 at 7:48 pm | Permalink

    I do enjoy such stories!

  2. Posted September 6, 2012 at 6:39 am | Permalink

    Remember Lord Mansfield was a Scot: he would have known – even if his English interlocutors did not – that the Roman jurists had argued that slavery was not a natural state, but a creation of positive law. There was no such thing as a ‘natural slave’, only servile status as created by a piece of paper.

    Now one can see this as a concession to the basic fact that many of the slaves Romans bought (particularly the ‘paedagogii’, slaves purchased to educate the children in middle and upper class families beyond primary school) were far more accomplished than their owners. However, it is a decisive rejection of Artistotle’s ‘natural slave’ argument, and was very important in the development of a coherent jurisprudence of property.

  3. TerjeP
    Posted September 6, 2012 at 6:52 am | Permalink

    I’m pretty convinced by the view that if you took away the steam engine and our mastery of fossil fuels and other advanced energy technologies then slavery would be back within a generation or two. The legal and ethical arguments against slavery were always there but only gained traction when people could enrich themselves without subjugating others.

  4. Nick Ferrett
    Posted September 6, 2012 at 7:30 am | Permalink

    I suspect you’re right Terje

  5. Posted September 6, 2012 at 1:52 pm | Permalink

    Studying Roman law convinced me that Terje is right on this. I must admit when I read Monbiot’s piece admitting that Peak Oil was a non-starter thanks to the market (in its most basic form – raise the price of a good and people have an incentive to find more of it), I breathed a sigh of relief. The exploitation of fossil fuels and other technological innovations ensured that labour-power lost its comparative advantage. In the context of human history, that development is staggering.

  6. kvd
    Posted September 6, 2012 at 2:18 pm | Permalink

    Remarkable. Three people in a row agreeing with an unprovable proposition, with a timeframe of no more than two generations, starting from now. Must be time to stock the fallout shelter and take up archery.

  7. Posted September 6, 2012 at 3:17 pm | Permalink

    I think I first heard of Summerset’s case in “The Strange Case of the Law”, which provided an interesting history of the development of the common law.

    I’m not sure slavery would come back in exactly the same form. Looking at what is going on in the US, it would likely come back in the form of for profit forced-labour prisons. Possibly coupled with a privatised parole system that enables utilisation of the parolee’s labour in exchange for taking on the liability of detainment and any crime or harm done during the parole period. The way the US clings to the death penalty and the way Guantanamo Bay has been operated suggest there could be legalisation of various inhumane methods of motivating labour. Of course it is possible that such a system be coupled with a criminal justice system that ensures a certain portion of the lower classes get convicted and sentenced into forced labour. I suspect there would still need to be (at least a pretext of) immoral/criminal action on the part of the individual being ‘enslaved’, and that it wouldn’t be possible to be enslaved simply by contract or for debt.

    I can’t see the civilised world regressing quite so quickly. However, who knows what would happen once a poor and ignorant majority came to dominate the rest of the world’s democracies…

  8. Posted September 6, 2012 at 3:34 pm | Permalink

    (1) What do you mean slavery would be back? It has never entirely gone away; if you include debt bondage, the number of people in some form of bondage may be the highest in history.

    (2) The Soviet Union both reintroduced slavery (in its labour camps) and serfdom (with the provision that no employee could cease to work at a given workplace without said workplace’s permission, which is the essence of serfdom). Nazi Germany also reintroduced slavery, and leased slaves out to private corporations.

    (3) The last official abolition of slavery was by Mauritania in 1981.

    So, one could argue TP is being ragingly optimistic.

  9. kvd
    Posted September 6, 2012 at 4:12 pm | Permalink

    So, one could argue TP is being ragingly optimistic.

    One could, except one would have to also ignore his preface: that the steam engine and fossil fuels et al are somehow removed from present society, and that this ‘reversion’ would then happen within a generation or so.

    Nevertheless, to prove the unprovable, mount your horse, and gallop off in all possible directions. With apologies to Stephen Leacock, of course 😉

  10. Posted September 6, 2012 at 4:21 pm | Permalink

    [email protected] I would not buy into TP’s technological determinism. There were plenty of abolitions of slavery well before the steam engine and re-introductions in industrialised societies.

    My point was slavery is not a thing of the past and can and has reappeared without anything as dramatic as massive technological reversion.

  11. TerjeP
    Posted September 6, 2012 at 4:34 pm | Permalink

    What do you mean slavery would be back?

    For the sake of this conversation let’s assume I meant slavery in England. And let’s assume that “back” means tens of thousands.

    Of course it is very hypothetical. We are not going to forget how to make steam engines in a hurry and there is lots of fossil fuel and an endless supply of cheap nuclear if we play our cards right. For all their cost and complexity wind and solar power might even be adequate to stop such a slide back into the worst of our dark nature.The point is that the law and its decency in this regard was enabled by technology not some fundamental change in the goodwill of humanity.

  12. Posted September 6, 2012 at 9:20 pm | Permalink

    Depressing Lorenzo is depressing.

    Also: not everyone followed the Romans and English in holding that slavery was unnatural. Sharia followed Aristotle, as did the antebellum South. In both cases, the implications were tragic and bloody.

  13. Posted September 7, 2012 at 5:12 am | Permalink

    [email protected] If you mean England, then no.

    There was no actual slavery in England possibly after the Romans left, certainly from when the Dark Ages were still going. There was serfdom, right up until Elizabeth I (who found she had inherited some bondsfolk because they were on confiscated Church property — serfdom lasted longer on Church property because of the Canon law rules against alienating Church property). But no slavery as such.

    One reason why Lord Mansfield could rule as he did. Lord Hardwicke in his earlier judgement referenced above was stretching from serfdom, which is not the same thing. (Serfs are not property as such; they can own property and have full family rights, they are just bound to the estate.)

  14. TerjeP
    Posted September 7, 2012 at 6:51 am | Permalink

    Lorenzo – I’d be happily wrong on this issue.

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