Category: Constitutional and Legal History

Solving the problem of the House of Lords

13th November 2021

Over at the Financial Times, there is an interesting and informative piece about the hereditary peers in the house of lords.

And the point of the article is compelling: they make no sense.

The hereditary peers, as with the bishops of the established church of just one(!) of the four home nations, have no place in the legislature.

The only possible plausible argument for their presence is that, at least, there are members of that chamber that do not own their place to patronage.

But that is not much of an argument.

The biggest problem about the house of lords is not so much that of personnel but of function.

And unless we work out the proper function of the upper chamber then there can be no consensus on how to replace the hereditary peers and English Anglican bishops and on how to reform the house more generally.

What is the house of lords for?

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Some may aver that the chamber should have a representative function – perhaps of the home nations or the regions.

(This like the old notion that the house of lords was there to represent the agricultural/landed interests and church interests so as to balance the interests of those represented in the commons.)

Or its membership at least based on being elected by some different configuration than the house of commons.

Like the senate in the United States having two senators per state as opposed to the variable number of representatives per state in the other house of congress.

But this view raises the potential problem of rival mandates, with both houses claiming the legitimacy of the electorate.

In the United States that problem is avoided in part because of tradition, but also because the two houses have some different functions and are elected on separate cycles.

Such a balance would not be easy, at a stroke, to transplant into the United kingdom.

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Far more important than any representative function is, in my view, to retain and improve the revising and scrutiny role.

Here the house of lords, despite its lack of democratic legitimacy, serves the public interest in legislation often being better than it otherwise would be.

Placing the house of lords on some sort of democratic basis would risk losing this valuable role.

But other than through the patronage of the prime minister and others, how should members of this upper house be appointed?

On one hand they need to have the experience, ability and independence to say ‘no’ to a government so as to force reconsideration (though not to veto completely).

On the other hand, they need to have some legitimacy in a democratic society, and so whoever appoints them must have some direct relationship with the electorate.

Indeed, it may even be that there cannot be any reform of the house of lords until there is prior reform of the over-mighty house of commons.

And that in turn may need electoral reform and so on in an almost innate political regression.

Where would you start?

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So, back to the immediate question: how do we solve the problem of the house of lords?

There is no obvious solution – at least not one that does not risk losing what is valuable about a revising and scrutinising upper chamber.

And an unchecked house of commons is not an attractive prospect.

Like the crown, the constitutional significance of the house of lords may be not so much what powers it does have, but what powers it prevents others from having.

Getting rid of the hereditary peers and the bishops – although welcome – leaves the more general issue of what the house of lords is for unsolved.

Perhaps there is no practical and immediate solution.

And that is why in 2021 – 110 years after the temporary retention of peers in the 1911 Parliament Act – we still have this odd system.

(Emphasis added.)

Perhaps in another 110 years we will have a solution.

Or perhaps not.

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Budget special: the Fiscal State vs the Legal State

28th October 2021

Over at the London Review of Books there is a fascinating and informative review by Ferdinand Mount.

The review is of a book by Julian Hoppit about the history of tax and spending in the United Kingdom (which I have not yet read), but there are some thought-provoking points in Mount’s review.

The points in the review are, in effect, useful counter-balances to the usual critique of the United Kingdom constitution on blogs like this one and from other liberal constitutionalists.

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This usual critique is that there is an inherent illiberal problem with the constitution of the United Kingdom: that the doctrine of parliamentary supremacy creates a real scope for political dictatorship – even if this possibility has not (yet) been fully realised.

There is nothing to stop it, for there is nothing that can gainsay the legislative supremacy of parliament – and so an executive with an ascendancy in parliament faces no ultimate checks and balances.

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It was not always like this, of course.

In the early 1600s, the great lawyer Edward Coke averred that there were limits to what could be done by acts of parliament:

“for when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void”.

But the political facts of the civil wars of the mid-1600s and of the deposition of a reigning monarch in 1688 meant that parliament became, in practice, legislatively omnipotent.

And this political reality was fixed into rigid ideological doctrine in the late 1800s by A. V. Dicey, whose articulation of the sovereignty of the crown-in-parliament has been orthodoxy ever since.

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As this doctrine of parliamentary supremacy took hold, there were voices of alarm.

In 1929, the sitting Lord Chief Justice – Hewart – published The New Despotism warning of the implication of the power of a government that controlled the legislature, for it would tend “to subordinate Parliament, to evade the Courts, and to render the will, or the caprice, of the Executive unfettered and supreme”.

In 1976, the Tory (former and future) Lord Chancellor Lord Hailsham warned of an “elective dictatorship”.

Both Hewart and Hailsham were experienced politicians as well as senior judges, and they could see how flimsy were the ultimate checks and balances on the executive.

All we had to rely on is what the constitutional historian Peter Hennessy has described as ‘the good chaps theory of government’.

This described how self-restraint was the primary reason why the executive did not carried away with its unchecked constitutional power.

And in an age of Boris Johnson and Dominic Cummings (and of Donald Trump and Steve Bannon), this is not a comforting prospect.

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So how did we end up like this?

Why has the United Kingdom state almost sleepwalked into creating the conditions where raw executive power is effectively unchecked?

Mount’s review provides an interesting explanation.

The explanation is that this was not any conscious political intention, but the implication and by-product of the fiscal state.

Here Mount’s review starts with this wonderful anecdote:

“‘You were so generous, you British,’ Hans-Dietrich Genscher, West Germany’s perpetual foreign minister in the 1980s, once remarked: ‘You gave us a decentralised federal structure and a proportional system of election so that never again could we concentrate power at the centre, but you took neither of these for yourselves.’ Canadians and Australians could say much the same […]”

Mount then explains why we did not take the liberal constitutionalist course we imposed on others:

“The answer provided by one strong, perhaps dominant, tradition in English historiography is that monarchy, single rule, is a remarkably effective system, the secret of England’s survival and, for many centuries, the driving force behind the expansion of its power. Hence monarchy’s enduring popularity. […]

“Kings of England commanded a range of power and control over all subjects which outdistanced supposedly greater monarchs on the Continent.’

“This power consisted, above all, in the capacity to collect taxes. There were popular eruptions and, of course, exceptions (smuggling was one nagging drain on revenue), but between the poll tax riots of 1381 and the poll tax riots of 1990, what’s remarkable is the docility, by and large, with which the English paid their taxes, even when they reached monstrous levels to finance the Napoleonic Wars and the world wars of the 20th century.

“[…] after each convulsion – the Civil War, the Glorious Revolution, the Great Reform Bill, universal suffrage – the essential supremacy of the queen-in-Parliament (‘absolute omnipotence’, in Dicey’s phrase) re-emerged virtually unchanged.

“In this version of history, Parliament itself is reduced to a serviceable appendage for securing popular assent.”

(By the way, Mount’s review is more nuanced than the quotations above may indicate, so don’t take those quotations as the entirety of his stated position.)

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In other words: what makes no sense – and is akin to madness – from a liberal constitutionalist perspective, makes perfect sense from a fiscal perspective.

The executive’s abilities to impose taxation and to obtain revenue, and to have general consent in doing both, benefits greatly from the crown-in-parliament.

Translating finance bills in to acts of parliament is the thing.

And because of this, few front-rank politicians of any party would want to question, still less disturb this happy political situation – other than legal-political observers like Hewart and Hailsham.

Politicians and parties simply want the keys to this efficient fiscal-legal-political state.

And indeed a great deal of the United Kingdom constitution – and its history – is best understood from a fiscal perspective – including the respective powers of the two houses of parliament following the 1909-11 constitutional crisis.

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But.

What happens when the priorities of a government are not limited to the mundane business of tax-and-spend, but expand instead to wanting to use the executive in hyper-partisan exercises to stoke endless culture wars, and so on.

For not only do new ministers get they keys to the efficient fiscal-legal-political state, they also get the keys to unchecked executive power more generally.

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What is useful about being informed (or reminded) as to why the constitution of the United Kingdom came to be in its current arrangement is that at least it explains a thing which is a horror from a liberal constitutionalist perspective.

And it forces the question: can the constitution of the United Kingdom be reformed so as to become less of this liberal constitutionalist horror without losing the fiscal-legal-political efficiency that politicians (and – presumably – their voters) find so attractive and will not plausibly relinquish?

This is a difficult question.

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‘Parliamentary Sovereignty’ and ‘Parliamentary Supremacy’

24th October 2021

In the Attorney General’s interesting recent speech on judicial review, there is the following passage:

“But this flexibility, this resilience, should not obscure the central principle embedded in the very heart of our constitution, of fundamental importance since at least 1689.

“That principle is Parliamentary Sovereignty – it both underpins and anchors our constitutional settlement.

“I agree with the position as advanced by Lord Bingham in Jackson v Attorney General:

“‘The bedrock of the British constitution is, and in 1911 was, the supremacy of the Crown in Parliament . . . Then, as now, the Crown in Parliament was unconstrained by any entrenched or codified constitution. It could make or unmake any law it wished. Statutes, formally enacted as Acts of Parliament, properly interpreted, enjoyed the highest legal authority.'”

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The sharp-eyed among you may have noticed that the speech here switches between ‘parliamentary sovereignty’ and ‘the supremacy of the Crown in Parliament’.

Two s-words.

And you can see that the second s-word used is qualified by the term ‘Crown in Parliament’.

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Some use the two terms ‘parliamentary sovereignty’ and ‘parliamentary supremacy’ interchangeably, as constitutional synonyms.

I try to avoid doing this, as I think there is a distinction between the two.

This is because parliament, in and of itself, is not sovereign.

What may be sovereign is, as Lord Bingham was careful to say but the Attorney General was not, is ‘the Crown in Parliament’.

An Act of Parliament – following royal assent – is the supreme law of the land.

But nothing else done by parliament is ‘sovereign’.

For example: a parliamentary resolution or standing order binds only parliament (if at all)

And statutory instruments can be struck down by the courts as ultra vires the parent Act of Parliament.

Parliament is only sovereign when its primary legislation is endorsed by the crown – and not in respect of any other activity.

Even the limits of so-called parliamentary privilege are subject to judicial construction and interpretation.

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The former appeals judge Stephen Sedley avers – correctly in my view:

“It needs to be understood, because events in the earlier part of [the twentieth] century have obscured it, that there are within the separate powers of the modern British state two sovereignties, those of Parliament and the courts.”

Sedley in turn quotes Lord Bridge from a 1991 House of Lords Case, X Ltd v Morgan Grampian (Publishers) Ltd:

“The maintenance of the rule of law is in every way as important in a free society as the democratic franchise.

“In our society the rule of law rests upon twin foundations: the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen’s courts in interpreting and applying the law.”

In other words: in interpreting and applying the law – but not in making or unmaking the law – the courts are sovereign too.

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This is not – or should not be – a surprise.

The sovereign entity in the United Kingdom is – as the label suggests – the monarch.

In law-making, the Crown and parliament are sovereign.

But in interpretation and application of the law, the Crown and the courts are sovereign.

Indeed, if you ever wander into a formal courtroom, you will often see the crown above the head of the judge.

(And just as those in the armed services salute the badge and not the person of a senior officer, when lawyers and others in court ‘all rise’ they are effectively paying respect to the source of the court’s power, and not to the person of the judge – or at least that is what you can tell yourself.)

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None of the above takes away from the legislative omnipotence of parliament in enacting primary legislation.

And it is certainly not an error to say ‘parliamentary sovereignty’ when one speaks of primary legislation.

But to do so may imply that parliament is the only form of state sovereignty in the United Kingdom (at least in England and Wales).

And it may imply that parliament is sovereign in some other respect than in enacting primary legislation.

Her Majesty’s Courts are, well, the Crown’s too.

And in interpretation and application of the law, the Crown and the courts are as sovereign as the Crown and parliament is in making and un-making the law.

So that is why – though it is only a personal preference – I tend to say ‘parliamentary supremacy’ – and not ‘parliamentary sovereignty’.

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Looking at today’s select committee hearing as a practical exercise in holding the foreign secretary to account

1st September 2021

The word ‘accountability’ in a political context means that a person with political power is required to give, well, an account of what they do and do not do.

This in turn means that exercises in political theatre – such as dramatic resignations and sackings, or prime minister’s questions, and so on – are not examples of political accountability.

Indeed, they can often be a substitute for the minister explaining about what happened on their watch.

And general elections are not an exercise in practical accountability: even taking the electoral system into account, parties campaign on broad manifestoes and are not obliged to fulfil and mandate if elected.

The nearest we have in the United Kingdom parliament at Westminster to the means of practical political accountability are select committee hearings.

Earlier today there was one such select committee hearing – the foreign affairs committee session with the foreign secretary Dominic Raab.

And to a certain extent this worked as an exercise in accountability: some further information was provided as to the circumstances of the evacuation from Afghanistan.

But rather than providing a full account of what happened, the foreign secretary often seemed uninformed and unaware, and he sought to hide behind long discursive answers unrelated to the questions asked.

Of course: by showing the vacuity of the foreign secretary the session was an exercise in political transparency, if not in accountability.

But there was nothing the committee could do – at least in the session – to require the foreign secretary to give a more complete and direct account of what happened.

And the session was not long – about an hour or so.

Yet this is the best we will get – the foreign secretary is now safe again from being probed closely as to what happened and did not happen.

We will return to ‘politics as normal’.

Perhaps one day, some earnest public inquiry will piece together a fuller account of what happened with Afghanistan.

And the time there is account, the relevant politicians will have long gone from being held to that account.

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Ministerial resignations: the ‘Estelle Morris resignation’ vs the ‘Lord Carrington resignation’

29th August 2021

A recent post on this blog set out why one should be sceptical of ministerial resignations – at least as a form of practical political accountability.

Many resignations – and sackings – are political theatre, and they are not instances of political accountability but substitutes for it.

The post averred that resignations still have their place, but that – all other things being equal – such resignations are not really about accountability.

No account ends up being given of how things went wrong, and why.

Instead there is a political CTL+X or CTL+Z and the political typing goes on as before.

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That said, one famous ministerial resignation was that of Lord Carrington in 1982.

In his letter of resignation, he stated:

‘The Argentine invasion of the Falkland Islands has led to strong criticism in Parliament and the press of the Government’s policy. In my view much of the criticism is unfounded, but I have been responsible for the conduct of the policy.

‘I think it right that I resign.

‘As you know, I have given long and careful thought to this. I warmly appreciate the kindness and support which you showed me on Saturday. But the fact remains that the invasion of the Falkland Islands has been a humiliating affront to this country.’

In his memoirs he stated:

‘The nation feels that there has been a disgrace. Someone must have been to blame. The disgrace must be purged. The person to purge it should be the minister in charge. That was me.’

He is generally regarded as having resigned for not having anticipated the Argentine invasion of the Falklands Islands.

Few historians now blame Carrington – and indeed the minister more responsible for signalling to Argentina that the United Kingdom may have a weak resolve to defending the Falkland Islands was the defence secretary, who stayed in his job.

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Another resignation, though now less famous, was that of Estelle Morris as education secretary in 2002 – and it one of the most remarkable and refreshing political resignations of modern times.

Her reasoning was startlingly frank:

‘I’m good at dealing with the issues and in communicating to the teaching profession. I am less good at strategic management of a huge department and I am not good at dealing with the modern media. All this has meant that with some of the recent situations I have been involved in, I have not felt I have been as effective as I should be…’

She resigned because she was not in the right job, and she said so.

And good on her – and it would be better if more people with political power were so candid.

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The current foreign secretary Dominic Raab is criticised in today’s press for failures to engage properly with the issue Afghanistan in the run up to this month’s evacuation.

In particular:

This is a serious charge – perhaps almost the most serious charge that could be made against a foreign secretary.

This is not just getting a foreign policy issue wrong – say, like what was alleged against Carrington – but not even engaging with it in the first place.

This is foreign policy that is not even wrong, in the words from another context of Wolfgang Pauli.

If the charge is correct then Raab cannot even give an account of what he did wrong and why made those errors, as he did not do anything.

He cannot offer any account, for there is no account to be given.

And so there cannot – literally – be accountability.

If he were to now resign in these circumstances, it should be more of an Estelle Morris resignation than a Lord Carrington resignation.

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And just as resignations and sackings are substitutes (usually) for accountability, another things is stark.

If the newspaper report is accurate, being ‘totally focused on Brexit’ is a substitute for good policy and government.

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The ‘benefit of hindsight’ is becoming the modern ‘benefit of clergy’ – politics, accountability and rhetoric

25th August 2021

There are various means by which those with political power can evade accountability for what they do and do not do.

(By ‘accountability’ I mean those with political power being obliged to give an account for what they have done and not done.)

One means is by minimising or removing any formal checks and balances within our constitutional arrangements – answering to parliament, the independence of our courts, the effectiveness of judicial review, an impartial civil service, public service broadcasting and so on.

A second means is to disregard informal and non-legal self-restraints within the constitution – to ignore the ‘good chaps’ theory of the constitution, where so much depends on the willing observance of unenforceable conventions and rules of procedure.

A third means is to ensure that any special method of accountability – such as a public inquiry – is as delayed or limited as possible, if it takes place at all – and if it does take place, the ‘lessons learned’ are for another generation of politicians.

And a fourth is by means of rhetoric.

In particular, the increasingly regular occurrence of ministers and political appointees invoking ‘hindsight’.

In the commons, the prime minister responds to explanations of how he could have dealt with foreseeable things in a timely manner – regarding Brexit and other things – with the jibe ‘Captain Hindsight’.

The politically appointed head of the national health service test and trace programme told a parliamentary committee, with a straight face:

‘With the benefit of hindsight the balance between the supply and the demand forecast wasn’t right. Clearly that is true.’

And, now with Afghanistan, we have the foreign secretary explaining why he carried on taking a holiday during the fall of Kabul:

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Brexit.

COVID-19.

Afghanistan.

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In most, if not all, of these situations the potential problems were bleedingly obvious in real-time, at the time.

What was required was not hindsight but foresight.

But we now have a group of politicians who have realised they can benefit from a special form of political herd immunity by deriding criticism as ‘hindsight’.

And this, in turn, provides them with a licence to not properly think things through at the time and to take decisions (or not take decisions) for reasons of perceived political expediency.

For they know, in the back of their minds, that when things go wrong all they have to say to critics:

‘…with the benefit of hindsight’.

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A healthy polity does not greatly depend on formal constitutional instruments – and legalistic words in a document can only make so much difference.

A healthy polity instead depends on issues that can be characterised as ‘cultural’ as well as constitutional – the general sense of what those with political power can get away with.

And, as the very stuff of a political culture is largely words, symbols and communication, when that culture is debased then it becomes significantly more difficult to hold ministers to account.

The ‘benefit of hindsight’ is becoming the modern ‘benefit of clergy’.

If this trend continues, then our polity will be the worse for for it.

And this will not only be obvious with…

…well, hindsight.

**

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They are proclaiming Magna Carta at Edinburgh Castle

 

19th August 2021

Time for some summer fringe fun from Edinburgh (from my Twitter feed) – but also with a serious point at the end.

https://twitter.com/davidallengreen/status/1427893171984470018

https://twitter.com/davidallengreen/status/1427895325382135812

[Sadly the link in the above tweet has now been deleted.]

https://twitter.com/davidallengreen/status/1427897234360881154

https://twitter.com/davidallengreen/status/1427898649305128961

https://twitter.com/davidallengreen/status/1427899636006670339

https://twitter.com/davidallengreen/status/1427909500179296263

https://twitter.com/davidallengreen/status/1427910530455457792

https://twitter.com/davidallengreen/status/1427911683918503936

https://twitter.com/davidallengreen/status/1427912438314373124

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“The British constitution is whatever government can(not) get away with”

18th August 2021

There are only two particular things I knew about Austin Mitchell, the former member of parliament whose death was announced today.

The first was that, before he became a politician, he was a capable historian and the author of “The Whigs in opposition, 1815–1830”.

The second was his phrase that (I think) I can remember reading back in the 1980s but which I can only track online to 1997:

‘The British constitution is whatever government can get away with.’ 

This phrase has stuck with me as a politics student in the late 1980s, as a history student in the 1990s, and as a lawyer and constitutional commentator thereafter.

It is a perfect way of summing up a descriptive (as opposed to prescriptive) approach to constitutional matters.

(Anyone can witter on about what a constitution ‘should’ do, and constitution-mongering is easy – the difficulty is often working out exactly what in practice a constitution is – and is not – doing and why/how.)

And the phrase correctly focuses on the most serious predicament in the constitution of the United Kingdom: the lack of real checks and balances on the executive.

I personally prefer to render Mitchell’s dictum slightly differently, though the ultimate meaning is the same (emphasis added):

‘The British constitution is whatever government cannot get away with.’ 

In other words: if one was to plot all the instances where the executive cannot just do as it wishes then you would have a fair descriptive portrayal of the constitution.

To an extent that depiction would correspond with the text books on government and law – but also to an extent that depiction would not be in many academic books or papers.

As different as a picture of an elephant drawn by second-hand description against a high-resolution photograph.

So I know little about Mitchell as a person or as a politician – but that one phrase of his set off over thirty years of practical constitutional thinking and writing.

Or at least the constitutional commentary that I can get away with.

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Slaves as merchandise: what the first reported English case law on slavery tells us – the Butts v Penny case of 1677

13th August 2021

This blog recently looked at the end of the Atlantic slave trade, with the last (known) surviving transatlantic slaves and what their lives told us about law.

The last (known) victim died as recently as 1940, that is within the lifetime of four sitting United States senators.

This blog now moves to the beginnings of how English law dealt with slavey, with the Butts v Penny case of 1677.

(This is the first of an intended series of posts, dealing with cases on slavery and the slave trade.)

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Before we look at the case, there are three points of context.

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First, and by way of background: there was (supposedly) by the 1600s no (formal) slavery in England.

There had been been something known as ‘villeinage’ – where villeins, like human garden gnomes, were in effect held to be property fixed to the land.

Villeins however had (limited) legal protections, and could not be bought and sold like mere chattels.

By the 1600s, however, villeinage had in substance ended.

But it was the nearest English law had, at that point, to the notion of slavery.

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Second: by the 1670s English merchants had been happily and deeply involved in the slave trade for over a hundred years.

The slave trader John Hawkins was trading in slaves as early as the 1560s.

So impressed were those at the time with this trade in slaves that when Hawkins was granted a coat of arms, on its crest there was ‘a demi Moor in his proper colour, bound and captive’.

The role of English merchants in the trade in slaves was thereby not something that those at the time were somehow ashamed of – it was something openly celebrated.

At the time, a coat of arms was among the most public statement about a thing a person could make.

‘a demi Moor in his proper colour, bound and captive’

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Third: by the 1670s the trade in slaves even had the official recognition of the English state.

As early as 1618, James I had supported the establishment of a ‘Company of Royal Adventurers Trading into Africa’ and in 1663 a royal charter was granted to the Royal African Company.

So although the English courts had not yet grappled with the slave trade in its case law, and although it was a concept not (directly) known in English law, slavery and the slave trade was certainly something that was legally recognised and sanctioned.

For a court in 1677 to decide that there could not be a trade in slaves would go against both over a hundred years of actual mercantile practice and over fifty years of official support.

The odd thing, perhaps, was that it took so long for a dispute to reach the English courts to be reported.

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For completeness, mention should now be made of a 1569 case: Cartwright.

This is the case where (supposedly) it was held that ‘England was too pure an air for a slave to breathe in’.

The problem is that this celebrated – and later much-quoted – case was that it was not reported (that is, recorded) at the time, and we only know about if from later mentions in the 1700s.

Like a lost Shakespeare poem that we know about only from quotation, we do not have the original.

And it not being reported at the time, it had no contemporary impact or wider significance – if a judge said those rousing words at all.

*

So we come to the 1677 case of Butts v Penny.

Here we have two law reports.

The first is from a collection of cases reported by the judge Sir Creswell Levinz.

Unfortunately, the Dictionary of National Biography tells us, that is ‘some division of opinion among English judges as to Levinz’s merits as a reporter’.

His report is here – and it is one brief report among many others he reported:

The other report is not from a judge nor even from a practising lawyer, but from an endearingly obsessive non-practising barrister called Joseph Keble, who just turned up to court every day to report cases that ended up filling twenty volumes.

His report differs from that of Levinz – and is even shorter:

Again, for Keble this was just one report among many, many others.

Neither Levinz nor Keble emphasise their reports of this case, and if you scroll (or leaf) through their reports, the report is just reported like any other.

The fact that the case was about slaves did not strike either reporter as being especially noteworthy, and presumably it did not strike their contemporaries as being that noteworthy either.

The reports are not consistent – for example, one says 100 slaves and one says 10 (and a half?).

As Levinz may have been a/the judge in the case, and is anyway the more senior lawyer of the two, his report would normally be preferred – regardless of his mixed reputation.

What does this case tell us?

First: Butts (the plaintiff) had bought slaves, and that Penny (the defendant) had taken them.

Second: Butts was suing Penny on the basis of ‘trover‘ – which means that Butts was not demanding the physical return of the slaves but was suing for their cash equivalent.

This was thereby a commercial case – and trover cases were a commonplace of the time – but unlike most commercial cases (then as now) this had not settled and so had to be determined by a court.

Third: the value or other importance of the case was such that Penny instructed a lawyer, Thompson, to put the defence – on the law, rather than on the facts.

Fourth: the lawyer Thompson put the defence that there could not be property in people – Keble says the lawyer compared the situation with the then extinguished state of villeinage.

Had the court sided with Thompson’s submission on this then perhaps the history of the law of slavery would have taken a different direction.

But after a century of English slave trading and given the royal sanction for the slave trade, it would have been a robust court that would have made such a decision.

Fifth: the court deferred to mercantile practice – the custom of merchants.

In essence: because as a commercial fact slaves were bought and sold, then the court must accept that slaves could be bought and sold.

Slaves had fewer protections than villeins – indeed no legal protections at all.

Slaves – human beings – were ‘merchandise’.

And as merchandise, they could thereby be the subject of an action for trover.

Like any other property.

And sixth: the court made reference to the slaves being ‘infidels’ as if that somehow reinforced the decision made.

And so the plaintiff won.

*

The striking thing about this case is, well, just how un-striking it was at the time.

A commercial case among hundreds of others, with the briefest (and inconsistent) law reports.

The court just nodded along with the custom of merchants.

And that was that.

No outcry, no obvious public attention.

The same matter-of-fact, bureaucratic mentality that was to be a feature of how the English courts generally dealt with the issue of slavery for the next hundred or so years.

The court did not even seem to regard itself as making new law or establishing any precedent – it was instead just applying existing commercial law to yet another form of property.

As if it was completely normal.

One can presume that before 1677, similar cases would have settled on the assumption that slaves were ‘of course’ merchandise and so could be subject to an action in trover.

Only this otherwise unknown Mr Penny went to the length of litigating the case to court, employing the lawyer Thompson to raise a legal (rather than evidential) defence, and then Mr Penny lost.

Butts v Penny is an unexceptional exceptional case.

Exceptional to us, as we see human beings casually reduced to ‘merchandise’.

Unexceptional to those at the time, other than Mr Penny getting his lawyer to make a spirited but futile defence.

And this was the first mark on the legal record of how English courts would practically deal with the slave trade.

As Hannah Arendt said in a different context, this is how banal an evil can be.

**

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The last surviving transatlantic slaves and what their lives tell us about the law

11th August 2021

As part of my research into slavery and the law, I want to ascertain the chronological parameters of the transatlantic slave trade.

At one end, in the sixteenth and seventeenth centuries, there is the emergence of the trade in the days when the legal system(s) were very different to now – with rights of action and forms of property with which many modern lawyers would not now be familiar.

But what of at the end?

Of course, we all know that the trade had (supposedly) ended by the early to mid nineteenth century.

But in fact the last victims of the trade were alive until modern times.

The last (known) living victim did not die until 1940 – within the lifetime of four currently serving United Senators

And if one looks at the lives of the last three of those who are known to have survived, you get some interesting insights into the role of (relatively) recent law in respect of transatlantic slavery.

The survivors names were Oluale Kossola (also known as Cudjo Lewis), Redohsi, and Matilda McCrear – see here, here and here.

The ‘legal’ insights one gets are:

– how transactions were still being made in Africa, and how the supply of slaves was still organised so as to meet demand;

– how the traders deftly evaded justice – by procedural delays, as well as destroying evidence and hiding the human evidence – and also by jury verdicts;

– how survivors did not have the automatic benefit of American citizenship after emancipation because they were born abroad; and

– how one of the survivors even sought compensation (presumably in the 1920s or 1930s) but the claim was dismissed.

These examples touch on modern legal issues – the existence of illegal markets, criminal prohibition and its avoidance (both in substance and by gaming procedure and evidence), rights of citizenship, and rights to compensation.

The story of the transatlantic slave trade lasted some five hundred years.

The story goes from the legal days of actions in trover and assumpsit to the laws that exist today.

It was far more extensive both in scope and duration than many would realise.

In a way, the story of the slave trade is the story of modern commercial law.

**

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