Yorke–Talbot Slavery Opinion
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The Yorke–Talbot slavery opinion was a
legal opinion In law, a legal opinion is in certain jurisdictions a written explanation by a judge or group of judges that accompanies an order or ruling in a case, laying out the rationale and legal principles for the ruling. Opinions are in those jurisdi ...
issued by two Crown law officers in 1729 relating to the legality of
slavery Slavery is the ownership of a person as property, especially in regards to their labour. Slavery typically involves compulsory work, with the slave's location of work and residence dictated by the party that holds them in bondage. Enslavemen ...
under
English law English law is the common law list of national legal systems, legal system of England and Wales, comprising mainly English criminal law, criminal law and Civil law (common law), civil law, each branch having its own Courts of England and Wales, ...
.


Background

The opinion was sought by slave merchants after certain judicial decisions by Lord Chief Justice Holt. Earlier judicial decisions had upheld the legality of slavery in relation to African slaves on the basis that they were infidels. However, in '' Chamberlain v Harvey'' (1697) 1 Ld Raym 146 and in '' Smith v Gould'' (1705–07) 2 Salk 666 Lord Holt rejected this approach, but suggested on a wider basis that slaves were not chattels capable of supporting a legal property claim. The clear concern of the slave traders was that, at best, Christian Africans could not be slaves, and that
baptism Baptism (from ) is a Christians, Christian sacrament of initiation almost invariably with the use of water. It may be performed by aspersion, sprinkling or affusion, pouring water on the head, or by immersion baptism, immersing in water eit ...
would
manumit Manumission, or enfranchisement, is the act of freeing slaves by their owners. Different approaches to manumission were developed, each specific to the time and place of a particular society. Historian Verene Shepherd states that the most wi ...
a slave (and in fact a number of slaves were baptised and claimed on this basis to be free), and at worst, there might be no legally enforceable property rights in a slave. Views had also been expressed that, whatever the position of slaves in the colonies, a slave in England could not be restrained against his will. The opinion was written by Sir Philip Yorke (then the
Attorney General In most common law jurisdictions, the attorney general (: attorneys general) or attorney-general (AG or Atty.-Gen) is the main legal advisor to the government. In some jurisdictions, attorneys general also have executive responsibility for law enf ...
) and Charles Talbot (then the
Solicitor General A solicitor general is a government official who serves as the chief representative of the government in courtroom proceedings. In systems based on the English common law that have an attorney general or equivalent position, the solicitor general ...
), each of whom would later rise to the rank of
Lord Chancellor The Lord Chancellor, formally titled Lord High Chancellor of Great Britain, is a senior minister of the Crown within the Government of the United Kingdom. The lord chancellor is the minister of justice for England and Wales and the highest-ra ...
as Lord Hardwicke and Lord Talbot respectively. They wrote the opinion in their capacity as law officers of the Crown, and so was only an opinion and not a judgment of a court. Despite this, the opinion was frequently cited by those who argued that Black slaves could be viewed as chattel under common law, despite its lack of support from precedent.


Opinion

Yorke and Talbot opined that under English law: #a slave's status did not change when he came to England, #a slave could be compelled to return to the colonies from England, and #that baptism would not
free Free may refer to: Concept * Freedom, the ability to act or change without constraint or restriction * Emancipate, attaining civil and political rights or equality * Free (''gratis''), free of charge * Gratis versus libre, the difference betw ...
a slave. They summarised the following: The opinion cited no authorities, and set out no legal rationale for the views expressed in it, but it was widely published and relied upon. The opinion was largely accepted in England as a definitive statement of the law for nearly 40 years. Curiously, the opinion made no reference either to the abolition of trade in serfs of 1102 by the
Council of Westminster Synods of Westminster were certain of the more important ecclesiastical councils held within the present bounds of London. Though the precise locality is occasionally uncertain, the majority of the medieval synods assembled in the chapter-house o ...
, or to the decision in ''In the matter of Cartwright'', 11 Elizabeth; 2 Rushworth's Coll 468 (1569), a case often cited as authority for the statement "that England has too pure an air for a slave to breathe in." Nor did it refer to the two decisions of Lord Holt (''Chamberlain v Harvey'' and ''Smith v Gould'') which led to so much of the controversy.


Aftermath

Yorke subsequently endorsed the views expressed in the opinion (although not expressly referring to it) whilst sitting in his judicial capacity as
Lord Chancellor The Lord Chancellor, formally titled Lord High Chancellor of Great Britain, is a senior minister of the Crown within the Government of the United Kingdom. The lord chancellor is the minister of justice for England and Wales and the highest-ra ...
in ''Pearne v Lisle'' (1749) Amb 75, 27 ER 47. However, in 1772,
Lord Mansfield William Murray, 1st Earl of Mansfield, (2 March 1705 – 20 March 1793), was a British judge, politician, lawyer, and peer best known for his reforms to English law. Born in Scone Palace, Perthshire, to a family of Peerage of Scotland, Scott ...
held that no person could be forcibly removed from England as a slave in England in
Somersett's case ''Somerset v Stewart'' (177298 ER 499(also known as ''Sommersett v Steuart'', Somersett's case, and the Mansfield Judgment) is a judgment of the English Court of King's Bench in 1772, relating to the right of an enslaved person on English soi ...
on application for ''
habeas corpus ''Habeas corpus'' (; from Medieval Latin, ) is a legal procedure invoking the jurisdiction of a court to review the unlawful detention or imprisonment of an individual, and request the individual's custodian (usually a prison official) to ...
'' made on behalf of the escaped slave,
James Somersett James Somerset ( – after 1772) was an African man and the plaintiff in a pivotal court case that confirmed that slavery was illegal in England and Wales. Biography Somerset was born in West Africa around 1741. He was captured when he was about ...
. Yet mindful of Hardwicke's holding in ''Pearne v Lisle'' that English law would apply throughout the British Empire, and conscious of the economic ruin which the sudden
abolition of slavery Abolitionism, or the abolitionist movement, is the political movement to end slavery and liberate enslaved individuals around the world. The first country to fully outlaw slavery was France in 1315, but it was later used in its colonies. T ...
would cause in the colonies, Mansfield limited his ruling territorially. Ultimately slavery would be abolished by statute in both England and throughout the colonies pursuant to the
Slavery Abolition Act 1833 The Slavery Abolition Act 1833 ( 3 & 4 Will. 4. c. 73) was an act of the Parliament of the United Kingdom, which abolished slavery in the British Empire by way of compensated emancipation. The act was legislated by Whig Prime Minister Charl ...
.


Original document

A contemporary document upon which the opinion was written is preserved in
Northumberland Archives Northumberland Archives holds the archives for the county of Northumberland. The archives are held at Woodhorn and Berwick-upon-Tweed and run by Northumberland County Council. The Diocese of Newcastle appointed Northumberland Archives their dioc ...
. Copies of it can be viewed online. A transcript of the document is as follows: Nr Moot Case 100 – In order to rectify a Mistake that Slaves become ffree by their being in England or Ireland or being Baptised, it hath been thot proper to consult the Kings Atty & Sollt Gen & whose opin’s were as follows                We are of Opinion that a Slave coming from the West Indies To GB or Ireland, with or without his Master, doth not become free; And that his Mars property or Right in him is not thereby determined or varied; And that Baptism doth not bestow ffreedom upon him, or make any Alteration in his Temporal Condn in these Kingdoms We are also of Opin that his Mar may legally compel him to return agn to yeplantations.                                                                                                Yorke                                                                                                Talbot The following is a translation of the document: Number Moot Case 100 – In order to rectify a mistake that slaves become free by their being in England or Ireland or being baptised, it hath as been thought proper to consult the King’s Attorney and Solicitor General and whose opinions were as follows: We are of opinion that a slave, coming from the West Indies to Great Britain or Ireland, with or without his master, doth
oes Oes or owes were metallic O-shaped rings or eyelets sewn on to clothes and furnishing textiles for decorative effect. Made of gold, silver, or copper, they were used on clothing and furnishing fabrics and were smaller than modern sequins. They wer ...
not become free; And that his master’s property or right in him is not thereby determined or varied; And that baptism doth
oes Oes or owes were metallic O-shaped rings or eyelets sewn on to clothes and furnishing textiles for decorative effect. Made of gold, silver, or copper, they were used on clothing and furnishing fabrics and were smaller than modern sequins. They wer ...
not bestow freedom upon him, or make any alternation in his temporal condition in these Kingdoms We are also of opinion that his master may legally compel him to return again to the plantations.                                                                                                Yorke                                                                                                Talbot


See also

*
Slavery at common law Slavery at common law in 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. Unli ...


Footnotes


References


External links


National Archives site
{{DEFAULTSORT:Yorke-Talbot slavery opinion Legal history of England Slavery in the United Kingdom 1729 in British law 1729 in England