Stephen Sedley on law and public life
There is a fairly obvious sense in which the law conditions or even determines, rather than simply reflects, a society’s shared sense of right and wrong (or – which is not the same thing – acceptable and unacceptable). The clearest instance in this generation has been the equality legislation, which has not simply placed on the statute book a prohibition against discrimination on grounds of race or gender, but has generated a fundamental change in the common sense of what kinds of conduct and language towards one’s fellow citizens are acceptable or right. This is statute law at its best – picking up and consolidating an incipient and fragile change of social mood, giving it legitimacy and backing it with legal redress. We have certainly not eliminated racial and sexual discrimination, but few would dispute that things would be markedly worse without the legislation.
In other areas, however, legislatures have played a passive or even a negative role, and it has been left to the courts of law to fill the voids. Perhaps the greatest and the most shameful of such voids was the failure of Parliament over many decades to respond to a widespread sense of moral outrage by abolishing slavery. It was left to the courts, unevenly and in response only to such private law cases as came before them, to do the job that Parliament after Parliament had shirked. Students still learn that in a single magnificent decision – portrayed in paintings and engravings of the grateful slave Somersett having the shackles struck from him as his ermine-clad deliverer pronounces judgment from on high – Lord Mansfield proclaimed: ‘The air of England is too pure for a slave to breathe. Let the black go free.’ The truth, as usual, is less dramatic but more instructive.
English law, which recognised and enforced slavery until well after the Norman Conquest, no longer did by the 16th century, when a lucrative slave trade developed between West Africa and the American and Caribbean colonies. The courts of England, however, gave their sanction to slave trading during the 17th century, in part by accepting its legitimacy within the law of nations and therefore the law merchant, but more directly by denying the protection of the law to infidels. This worked well enough, but only so long as slaves were not baptised and only in relation to contracts for their sale made overseas. In the first decade of the 18th century, Chief Justice Holt refused to accept that slavery could be enforced in domestic law – ‘as soon as a negro comes into England he becomes free,’ Holt said – a view which was both rejected and adopted in the course of the century. In 1771, reflecting the growing public sentiment against the slave trade, the reformer Granville Sharp prosecuted a man named Stapylton who had taken his runaway slave, Thomas Lewis, forcibly on board ship. The trial judge, Lord Mansfield, tried to evade the moral issue by directing the jury that the case depended simply on whether Lewis was Stapylton’s property. The jury returned a verdict that Lewis was not, but Mansfield refused to give it effect. Within a year Granville Sharp had returned to Lord Mansfield’s court with the case of James Somersett, another runaway slave who had been taken by force to a vessel moored in the Thames and bound for Jamaica. Mansfield this time grasped the nettle: ‘The state of slavery,’ he held, ‘is of such a nature that it is incapable of being introduced on any reason, moral or political, but only by positive law ... Whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the laws of England; and therefore the black must be discharged.’ Although the decision had been long anticipated by that of Holt, history – encouraged by a strong abolitionist lobby, which found it useful to elevate Mansfield’s reluctant judgment into a new turning-point – has given Mansfield the credit he desired; and it has generously forgotten that Mansfield went on in a subsequent decision to enforce work without pay on a slave brought here from the colonies.
Before the end of the Napoleonic wars, Parliament had prohibited trading in slaves, but the status of existing slaves in the colonies remained in contention. It was the avowed abolitionist Lord Stowell, in the case of the Slave Grace in 1827, who, by refusing to hold that slavery in the colonies was now contrary to public policy, pointed up the insularity of the decision in the Somersett case and insisted that it was for Parliament to expiate the guilt which still rested on Britain for the trade in slaves throughout its colonies. In the course of his sarcastic commentary on Mansfield’s jurisprudence, Stowell summarised it as being that ‘the air of our island is too pure for slavery to breathe in.’ Contrary to legend, therefore, the phrase is not Mansfield’s at all. But neither is it Stowell’s. It appears to originate in, of all places, Star Chamber, where in 1569 ‘one Cartwright brought a slave from Russia and would scourge him cruelly, for which he was questioned, and it was resolved, that England was to pure an ayr for slaves to breath in.’ In 1833, six years after Stowell’s judgment, Parliament abolished slavery in Britain’s colonies.
The history of slavery and the common law is not therefore the story of unflinching moral rectitude regularly associated with the cases of the slaves lames Somersett and Grace. The common law’s true claim to the moral high ground lies two generations before the waverings of first Mansfield and then Stowell, when Sir John Holt said all that the law could say about personal freedom, qualified in its territorial reach but handsomely unqualified by race or religion, until such time as Parliament was prepared to follow suit in the colonies.
The courts cannot claim a consistent history of either carrying out Parliament’s progressive measures or, where Parliament falters, doing the right thing unprompted. English judges rejected the repeated opportunities which came before them during the worst years of the game laws to outlaw spring guns and mantraps by penalising the landowners or the gamekeepers who set them – in contrast to the Scottish judiciary, who in 1827 upheld the conviction of the Earl of Home’s gamekeeper for murder by the setting of a spring gun, refusing to look at a contrary opinion of the English Attorney-General. Indeed, on more than one occasion in the past, the judges went to the point of perversity to frustrate Parliament’s intentions. One of the episodes now largely forgotten by legal history is the line of so-called ‘persons cases’ by which the courts of this country consistently obstructed the extension to women of university education, entry into the professions, the electoral franchise and access to elected office.
In 1869, Sophia Jex-Blake and six other women persuaded Edinburgh University to change its regulations and to admit women to separate lectures in medicine. The prospect that they would in due course graduate and enter the medical profession, into which so far only Elizabeth Blackwell (who had qualified in America) and Elizabeth Garrett (who had slipped in through a loophole) had made their way, led to furious academic resistance. The University reneged on its own regulations, and when the women brought proceedings in the Court of Session to establish their entitlement to attend classes, be examined and graduate, the University contended that its own regulations were ultra vires. A bare majority of the 12 judges who heard the case on appeal agreed with it. The rationale of the decision was that the historic purpose of the University was to educate young men, and that the University itself could not by a simple rule-change make it otherwise.