24th June 2021
Last June, after the death of George Floyd and the rise of the Black Lives Matter movement and the toppling of the statue of Edward Colston, I did a thread on Twitter pointing to the historic complicity of the legal profession in slavery.
https://twitter.com/davidallengreen/status/1271696745836228608
The second tweet in that thread mentioned a legal document of which few had heard: the Yorke-Talbot opinion of 1729.
https://twitter.com/davidallengreen/status/1271697813781561345
The Yorke-Talbot opinion was an important and consequential legal document.
The opinion had the effect of legitimising slavery in Great Britain for decades.
Yet, it was not a judgment or an act of parliament or a royal charter or indeed any text usually regarded as having the force of law.
It was, as its name tells us, an opinion.
But it was the opinion of the government’s two most senior law officers for England and Wales: the attorney general and the solicitor general.
And although in those days such figures could also do private client work, the offices of the two lawyers meant that this opinion had the highest authority.
To modern eyes, however, the striking feature of the opinion is just how flimsy it is.
The relevant text in its entirety is:
‘In Order to rectify a Mistake, that Slaves become free, by their being in England, or Ireland or being baptized, it has been thought proper to consult the King’s Attorney and Solicitor General in England thereupon, who have given the following Opinion, subscribed with their own Hands.
‘We are of opinion, that a slave coming from the West-Indies to Great-Britain or Ireland, with or without his master, doth not become free, and that his master’s property or right in him is not thereby determined or varied; and that baptism doth not bestow freedom on him, or make any alteration 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.’
You will see there is no authority cited, nor the application of any legal principle, nor the setting out of any jurisprudential reasoning.
A bare assertion of the law that would embarrass a law student in their first-term
Here is a facsimile of an early published version:
The purpose of this opinion was to counter the flow of increasingly liberal judgments on the slavery issue associated with Chief Justice Holt.
(A judge incidentally also associated with practically ending witchcraft trials.)
The consequence of the Yorke-Talbot opinion was to provide a legal device which all those involved in slavery and the slave trade – lawyers, traders, insurers, owners and so on – could rely on in the case of any doubts as the legality of slavery and the slave trade.
A piece of paper to wave in the face of any moral scruples or legal doubt.
A piece of paper with the high authority of the attorney general and the solicitor general.
It was the comfort and security needed for hardened men of business who made their fortunes and earned their professional fees out of this trade in human misery.
The great extension of British involvement in the slave trade was a feature of the period after 1729 – all under the legal cover of this Yorke-Talbot opinion.
It was not until Somerset’s case of 1772 that the courts began to decide otherwise.
Yorke and Talbot themselves did well out of their legal careers – both became lord chancellor, with Yorke taking the title of Lord Hardwicke.
(On this more generally, see my post here.)
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Hardwicke is a famous name in English legal history, and so things are named after him.
When I was called to the Bar by Lincoln’s Inn, one of the scholarships that I was awarded was a Hardwicke scholarship (though they have recently been renamed entrance scholarships) and this paid for certain administrative fees attendant on becoming barrister.
Another thing named after Hardwicke is a set of barristers chambers in Lincoln’s Inn (where I once did a mini-pupillage).
There are other things too – it is just one of those great legal names, like Halsbury or Denning.
I did not think anything concrete would come of my thread, other than to generate interest in the often unpleasant history of the legal profession.
*
But something did come of it, one year later.
Hardwicke Chambers is proud to announce that from next month it will be operating as Gatehouse Chambers. Click here for more information: https://t.co/rh3qR4iC90 #BlackLivesMatter pic.twitter.com/cSRjYmXnkf
— Gatehouse Chambers (@gatehouse_law) June 15, 2021
I understand I am one of the legal bloggers referred to in that statement.
Hardwicke chambers, who were already changing location, had decided to use the move as an opportunity to change their name at the same time.
What happened was that, prompted by the thread and the interest it generated, I am told senior members of that chambers went off to research the subject for themselves:
For those who want to learn about Yorke-Talbot Opinion (Hardwicke) re slavery can I recommend reading this thread – wouldn’t want others to continue to show their ignorance of history! Thanks @NicholasGLeah https://t.co/ZlmyyWTwc1
— PJ Kirby KC (@kirby_pj) June 17, 2021
And the barrister Nicholas Leah has now provided a thread on the opinion far more erudite than mine:
Grateful for the response to my thread about the Yorke-Talbot opinion & @hardwickelaw’s decision to change it name.
I have received a number of questions about the opinion and requests to share resources on the legal history of slavery.
This thread provides some answers 👇 1/24
— Nick Leah (@NicholasGLeah) June 17, 2021
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And so – in the great traditions of the Bar – an independent chambers had been gently persuaded of a change of name and had done so on the basis of research and evidence.
Unfortunately one government minister, a senior barrister, decided that this smacked of woke-ism:
Lincoln’s Inn is named for Henry de Lacy, Earl of Lincoln (c.1251-1311).
Gray’s Inn is named for Reginald de Grey, 1st Baron Grey of Wilton (c.1240-1308.
Both were confidants of and advisers to Edward I, who expelled the Jews from Britain in 1290.
Are they to be renamed too? /1— David Wolfson (@DXW_KC) June 15, 2021
This was a silly intervention from someone who knows (or should know) better.
It indicates that the minister does not know (or does not care) about the exceptional nature of the Yorke-Talbot opinion and of its dire consequences.
One would have hoped that a minister in the department of justice would have congratulated a chambers for showing independence and making a decision based on persuasion and evidence.
Anyway, he was gently put right:
Thanks David. When we discovered (15.6.20 for the record – entitled to say should have known earlier) Ld Hardwicke’s support for slavery for a diverse set to perpetuate his legacy including taking his name to our new premises was untenable. No pressure from anyone else.
— PJ Kirby KC (@kirby_pj) June 15, 2021
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The curious thing is that (similar to Edward Colston) the sheer number of things named after Hardwicke obscured rather than revealed his role in history.
What had been ‘erased’ from history was the York-Talbot opinion – and it is a document that should be better known to lawyers, historians and the general public.
Changing the name of a chambers (or of a scholarship) certainly does not erase Hardwicke – indeed, he is now more widely known about (again, like Edward Colston).
And a better understanding of how the legal system and lawyers facilitated slavery provides us with a fuller understanding of our own history.
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Thanks David. Everything you write is interesting but this is immensely interesting!
Very interesting. Can I ask, is there much “brand value” in the name of a chambers? What is the firm losing by, in a very controlled way, losing by changing the name?
Really interesting and thank you; would love you to add a ‘share’ option and good for Hardwicke for acknowledging ignorance but swift to do own research and make change.
Nicely done you baristas! we salut you and thank you for restoring some faith in these strange days. Thanks also to David for making the gentle distinction between simply doing the decent thing in our time and Wokeism, which has a credibility hernia, even if many of their points remain sound. A classic case of overselling, or maybe for many, finding at last a raison d’être – rather like William Cash: Europe Made Me (Hugo Young). So there! managed to get in a reference to Brexit ;-)
Only among – and because of – people who wilfully misrepresent it.
There’s no shame attached to having the capacity to care for the condition of people other than yourself – alien though simple compassion is, to the Culture Warriors who characterise it as a failing.
Perhaps you were too modest to say so explicitly, David, but:
> When we discovered (15.6.20 for the record …
That is the date of your earlier blogpost. I doubt that is a coincidence.
(Unlike the extraordinary coincidence of the Empire Windrush’s passengers disembarking on 22 June 1948, 176 year to the day after the Somersett case was decided.)
Hardwicke to me is a very rare 1870s era surviving steam locomotive in the National Collection. There is nothing on the NRM website about the derivation of the name. I will now write to them to establish (or not) that it is named after this Hardwicke and if so to display some information on who he was and his opinion. I hope you will not mind if I quote your blog post.
Reply from NRM, no link to the engine is named after a different Hardwicke, which I think is good news.
Dear Mr Kay,
Thank you for your recent enquiry concerning the name of our London & North Western railway locomotive No. 790 Hardwicke.
I can confirm that the locomotive is named after the Admiral Philip York, 4th Earl of Hardwicke, and not his great-grandfather the 1st Earl.
The 4th Earl succeeded to the title in 1834 and became Postmaster General from 1852, the year an Allen ‘Crewe Goods’ locomotive No. 292 which originally carried his name was built. The name was then given to ‘Newton’ class No. 790 in 1873, before this was ‘renewed’ as the ‘Improved Precedent’ locomotive we now have in our collection in 1892.
I do hope this is useful.
Kind regards,
Andrew
ANDREW MCLEAN
ASSISTANT DIRECTOR & HEAD CURATOR
Well, the 4th Earl didn’t write the legal opinion, but there is a direct family link, 70 years and three generations earlier.
Admiral Charles Philip Yorke, 4th Earl of Hardwicke (1799-1873) was the eldest son of Admiral Joseph Sydney Yorke, who was the third son (second son by second marriage) of Charles Yorke (Lord Chancellor in 1770, who killed himself three days into the office), who was the second son of the first Earl (also Lord Chancellor, 1737 to 1756).
The 4th Earl inherited the title in 1834 from his uncle, Philip Yorke, 3rd Earl of Hardwicke, who had no surviving son (the middle uncle also Charles Philip Yorke had died without a legitimate male heir, and his own father the third son had died after his yacht was struck by lightning).
The 3rd Earl’s father (and 4th Earl’s grandfather) was the second son of the first Earl. The first son Philip Yorke, 2nd Earl of Hardwicke, died with two daughters but no son to inherit.
The 4th Earl’s eldest son, later the 5th Earl, was the original “Champagne Charlie”, who gambled away the money and lost the house at Wimpole.
What a soap opera.
(As far as I am aware, the barristers chambers had no real connection to any of the Hardwickes, other than their previous offices being located in a building that bears the first earl’s name.)
Well said David! And bravo for bringing this very grim bit of hidden history to light.
Apart from the undisputed historical value, doesn’t this stuff, alas, happen all the time? John Yoo’s torture memo and Lord Goldsmith’s opinion on the Iraq war come to mind. They are stains on humanity, politics AND on the legal profession.
An excellent comment, well made.
Fascinating – I would like to think that my Facebook friends might read this, but somehow I doubt it. Thanks as ever.
This was an extremely interesting post. Thank you.
On a related point, I came across this interview with Kimberle Crenshaw, who was looking at exactly the same question in an American context, i.e. to what extent the law supported and enabled slavery and the oppression of African-Americans. She explains that this is the background of the ‘Critical Race Theory’, which now gathers so much attention in the political discourse.
I hope you’ll find her thoughts interesting.
Interesting if you find a stream of factless politicking that would shame even Carlson on Fox.
Perhaps an interesting snippet for you David. If you follow the family line, you arrive at the 5th Earl of Hardwick, born 1836 and died 1897.
The reason I mention this is the Hardwick Stakes is a horserace named after him and contested each year at Royal Ascot. The inaugural running was in 1879.
If Hardwick Chambers is now to be Gatehouse Chambers, should Royal Ascot rename this race, maybe the Gatehouse Stakes?
Very instructive blog thanks.
I was struck in particular about how the members of Hardwicke were not coerced but voluntarily changed the name after researching the issue and forming their own conclusions.
To me personally perhaps the most interesting and thought exercise leading from that action is what if they had decided not to change the name? Could or should they be compelled to do so?
I’ve been fascinated by the very polarised responses to players taking the knee or not taking the knee at the Euro’s. Essentially there is no allowance by either camp of the right for any player to make his own mind up and then not have to answer for his choice.
Unpleasant as it is sometimes a liberal-democracy is imperilled if individual freedom of choice is disallowed.
Compelled how? Isn’t it up to a business to decide how to brand itself? Subject of course to the law, such as the Business Names Act 1985 and the law of passing off and trade marks, and commercial pressures and moral scruples.
From observation, it seems quite usual for barristers chambers to name themselves after their premises – V Buildings, W Square, X Court, Y Street, Z Row. Some keep the old name when they move, no doubt because they perceive some goodwill in it, but others change the name.
To pick some related examples, I doubt Freshfields or Farrers or Rothschild have given much serious though to changing their names, despite documented historic links with the slave trade.
I used the term compelled in the sense of an organised campaign of such things as public protests outside the premises, pressuring clients to withdraw patronage etc all the way down to prying off the brass nameplate with a crowbar.
If you are ever, faced with the state of the world and a torrent of idiocy, tempted to give up with these blogs or the bird site: your sharing your expertise did make a difference. Thanks for doing so.
You can still give up the blog or the twitter of course, but the point is you don’t have to feel it was pointless.
Hardwicke Chambers were smart and ahead of the curve but beyond bowing to the current fashion nothing has been achieved. His name will fade but his heritage will survive. As with Coulston, nothing will be remembered and nothing learned. In the case of Coulston the irony is that the very white protesters were fulfilling his wish: his will asked for no statues and no commemoration.
The bigger question is where will the token acts go next? There are so many people in British history who had connections with African slavery including the Virgin Queen. There are also a host of people in European history. Then there are African and Middle Eastern players. And should we then move on to white slavery practiced by both Ottoman and Maghreb entities and several European countries. Of course severe editing of Scandinavian history is in order given rampant slavery by the Vikings. And then the granddaddy of all, Rome.
Wouldn’t it be better to put what they did in context and acknowledge it rather than step it under the carpet with name changing?
That’s a cynical (mis)interpretation of events.
It is perfectly possible to acknowledge the actions of these historical figures (such characterisation making it inherently impossible to sweep them under the carpet – being part of history is a very tenacious characteristic) without celebrating them, which is what plaques, portraits and statues are intended to do.
Hardly cynical. Colston has been renamed out of Bristol and people now enjoy his legacy without the potential discomfort of knowing what party funded it. So much so that CofE has erased his name from stain glass he gave “so people can enjoy the beauty of the space undisturbed”.
Gatehouse chambers will continue exactly as before but free of the risk of an embarrassing fuss by the self virtuous. Hardwicke was much more than a slave law jurist and anyway he was in fact clarifying and strengthening previous opinions that upheld slavery in England, not creating legality. Far from opposing slavery, Chief Justice Holt had merely changed the grounds for slavery (that slaves were infidels) but had left the question of baptism as an increasing risk to slave owners.
The real history is more complex than tokenism likes. Ironically it reveals how many people accepted and developed the slave trade and not simply in England or Scotland. So whitewashing out one person does not atone or rectify. Rather it satisfies armchair and pub warriors who can post a photo and feel good. Which is the problem. In many ways to trivializes the slave trade which was not uniquely British (more slaves were landed in Bahia than in British colonies yet no one pays attention to their descendants) nor began in late C17 (the first charter, from Charles V, to take African slaves to the Americas was dated 1516 and before that they were being shipped to the Canaries and Azores). The point is not “everyone was doing it”. It is that slavery survived and flourished just when notions of human rights were becoming topical. How do we reconcile or explain slavery with the Age of Enlightenment? To a very great extent money and out of sight, out of mind (which neatly brings us back to the tokenism of renaming).
One clarification to Yorke-Talbot. It was a clear opinion that suited the interests of the time. It was not law but no one seriously challenged it until Somerset which tells you as much about the society Hardwicke lived in as it does about him. Mansfield’s decision was law, so much so that he was careful not to extend it beyond Britain and Ireland: slavery in the colonies was not threatened.