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.
Law and slavery
It is not only the ports that need to look critically at their own history
The law and legal profession need to do so too
Slave owners and traders could only do what they did because they had legal cover
— davidallengreen (@davidallengreen) June 13, 2020
The second tweet in that thread mentioned a legal document of which few had heard: the Yorke-Talbot opinion of 1729.
You may have heard of two 1800s Acts which abolished the slave trade and slavery itself
You may perhaps have heard of the (limited) case of Somersett of 1772
But have you ever heard of the Yorke–Talbot opinion of 1729?
— davidallengreen (@davidallengreen) June 13, 2020
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.)
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
— Hardwicke (@hardwickelaw) 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 QC (@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
— Nicholas Leah (@NicholasGLeah) June 17, 2021
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 (@DXWQC) 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 QC (@kirby_pj) June 15, 2021
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.
Please support this blog – and please do not assume it can keep going without support.
If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.
You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated.
Comments will not be published if irksome.