Attorney general Philip Yorke, of the Yorke–Talbot slavery opinion. Photo: Wikimedia Commons

Why lawyers were as culpable as any slaver

The focus on individual traders like Colston means lawyers are out of sight—but they facilitated the trade
July 10, 2020

slave is a human being who is the property of someone else: a human being who can be owned, bought and sold just like other forms of property. Property rights, in turn, depend on being recognised and enforceable by a system of law.

Of course, a person can be kept captive by brute force and forced to work on pain of violence, and this too perhaps can be called slavery. But for slavery to be sustainable in any organised society, the complicity of laws and lawyers is required. A system of slavery needs to have laws and lawyers to make it work.

Slave owners and traders such as Edward Colston, whose statue was recently toppled in Bristol, were not on some frolic of their own. They were part of a wider enterprise in which many others in British society were complicit. They were practical businesspeople supported by specialist banks and insurers, supplied by expert chain and weapon makers, and advised by attorneys and barristers on how to avoid and minimise risk in their commerce in human flesh.

Few at the time thought any of this exceptional. Slaves were regarded as chattels or even as investment opportunities. Ownership of a slave in the faraway plantations was as normal then as, say, owning a timeshare in Spain would be now. Slave ownership was prevalent throughout society, and not just the preserve of a few wealthy merchants in Liverpool and Bristol.

There is a comforting national myth promoted by some commentators and politicians that slavery was not known to English law. Certain 18th-century cases are pointed to as deciding that slavery was always repugnant to the common law. But this is not correct: English law was quite at ease with slavery until its abolition across the Empire in 1834. This is demonstrated by the immense compensation arrangements that were required for the abolition to happen. If slavery was already unlawful, then what were the slave owners being compensated for losing?

The celebrated cases of the 1700s touched on what rights a slave owner could assert if their slave happened to be on British soil. The sordid practice was fine, as long as owners exercised their property rights from afar.

Other legal cases reveal how the horrors of slavery were normalised. In the Zong shipping case of 1784, the court heard how in order to protect a ship and its crew with depleted onboard supplies, slaves had been thrown overboard to drown. The commercial law issue for the court to rule on was whether the cargo owners could make a claim on the insurance policy. The judges took their decisions on a technical point of evidence, and nobody concerned in the case made any objection to slavery as a matter of principle. The insurer defendants certainly did not object, even if they disputed this case, as they were as much a part of the overall slavery system as the cargo owners who brought the case.

Any doubts that human beings could be property had much earlier been waived aside with a formal legal statement of 1729 by the two law officers of the Crown—the attorney general and solicitor general. The so-called “Yorke-Talbot Opinion” was, in substance, little more than an assertion that the practice was acceptable with no authorities cited. But with this endorsement by the British state, practical people saw no need to give the matter a second thought.

And once you know about how deep and wide slave ownership was before 1834, many familiar things become disconcerting. Fine Georgian squares, great public schools, handsome Oxbridge colleges and the Inns of Court: many of these things have hidden foundations at least in part in slave ownership. The social satires of Jane Austen are more sharply excruciating when you realise what many of the estates of her characters were ultimately based on.

Even after the abolition of 1834, British economic development depended in part on the slaves held elsewhere and then, later in the 19th and early 20th century, on the annexation of properties belonging to others, the very essence of imperialism. And at each step, lawyers and others were there to counsel those who were seeking to commercially exploit such misery.

No doubt many of those involved considered themselves then just as kind as we consider ourselves now. One could own, buy and sell slaves, and profit from their exertions, without ever encountering anyone actually enslaved, as they were far away in the “Indies” and out of mind as well as sight.

Understanding the complicity and connivance of law and lawyers (and of society generally) is essential to filling out the picture of the past. The archives show how central the miseries of slavery and imperialism were to our national history: the evidence is there in the detailed legal instruments, inventories and other business records that were needed to sustain them. There are shelves of volumes of ledgers of everyday bookkeeping and due diligence. They constitute our own version of the “banality of evil,” as Hannah Arendt described a later bureaucratic system of methodical horror.

The current focus on individual traders, like Colston, means that those who facilitated and enabled the trade, such as lawyers and other advisers, are out of sight. Systems make the difference. In more modern times, the police officer who abuses their power does so because he or she knows that they will probably get away with it: the system is rigged against anybody facing real accountability.

The wider legal system means that bad things can easily happen. Laws and due process are never neutral in their application, even if legal equality is the ideal.

Slaves could be thrown overboard just as a police officer can now kneel on a black man’s neck, because the legal system will operate so as to protect those inflicting the harm. The system of law is better at protecting those abusing power more than those they are dealing with. Some lives, and livelihoods, matter—and some do not.