Pressure Through Law

Carol Harlow, Richard Rawlings

• Publisher: Routledge
• Year: 2013
• Print ISBN: 9781138995253
• eBook ISBN: 9781134980031
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

Group litigation has been recognised by political scientists in the States as a useful method of gaining ground and attracting publicity for pressure groups since the turn of the century. In Britain however, recognition that the courts fill such a role has come more slowly. Despite this lack of recognition, pressure through law is far from a modern phenomenon. As the authors show, such cases can be identified in Britain as early as 1749 when abolitionists used the court to test conflicting views of slavery in common law.

This book looks at the extent to which pressure groups in Britain use litigation, presenting a view of the courts as a target for campaigners and a vehicle for campaigning. It begins with a description of the tradition of pressure through law in Britain, tracing the development of a parallel tradition in the United States, which has been influential in shaping current British attitudes.

The authors analyse the significance of the political environment in Britain in test-case strategy. In contrast with America, Britain has no written constitution and no Bill of Rights and its lack of Freedom of Information legislation makes both litigation and the monitoring of its effects very difficult. However, the centralised character of the British government means that the effects of lobbying are rather more visible in the corridors of power.

The authors examine a large number of case studies in order to analyse current practice, and they look at the rapidly changing European and international scene, discussing transnational law, the European community and the Council of Europe. They also look at the campaign tactics of global organisations such as Amnesty and Greenpeace.

Carol Harlow and Richard Rawlings are experienced in public law and familiar with political science literature. They are therefore able to relate legal systems to the political process, in a book designed to be accessible and important to lawyers, to political scientists and to lobby group activists.

1
PHILANTHROPY AND DISSENT

Take a dozen Quakers, be sure they're sweet and pink Add one discussion programme to make the people think … Garnish with compassion — just a touch will do Serve with deep humility your philanthropic stew.

Anon.

Pressure through law is often presented as a modern phenomenon. It is seen as arriving in Britain via the United States during and after the 1960s and as directly linked to the American civil liberties movement. Many people believe that it all started in 1954 with Brown v. Board of Education of Topeka, the famous Supreme Court ruling which ended racial segregation in state schools. Nothing could be further from the truth. The use of law by pressure groups to achieve reform and to establish rights may be as old as pressure groups themselves. Long before the twentieth century, test cases and pressure-group litigation can be identified in Britain.

ABOLITIONISTS IN COURT

To make this point more graphically, let us look a little more closely at one of the most celebrated cases ever fought in an English court of law. James Somerset was a slave brought to this country from the West Indies who escaped from his master. He was later retaken and held on a boat on the Thames to be returned to the West Indies. Somerset, however, had attracted the attention of Granville Sharp, a man already at this time dedicated to the abolition of slavery. Sharp's interest in the matter had arisen when, in 1765, he had befriended one Jonathan Strong, a slave abandoned by his master after ill-treatment which had rendered him useless for work. After Sharp's brother, a surgeon, had nursed him back to health, Sharp found work for Strong where he was seen and reclaimed by his master, David Lisle, who had him taken up and thrown into prison as a runaway. But Sharp had the legality of the detention tested before the Lord Mayor's court and Strong was discharged on the ground that he had been taken up without a warrant. Later, Lisle sued Sharp for damages but decided not to pursue his suit which never came to trial.

Sharp abandoned his profession, at considerable financial sacrifice as he was not a rich man, and made a detailed study of English law on the subject of slavery, which was published as a pamphlet in 1769. Since Strong's case, Sharp had been looking for a case to test conflicting views which existed of the common law. According to an opinion given in 1729 by the Attorney-General and Solicitor-General of the day, a slave remained his master's property even when in England; in other words, the common law recognised slavery. This view was upheld by the Attorney-General when he later became Lord Chancellor (Pearne v. Lisle (1749)). Sharp also had an opinion from Blackstone, the greatest legal authority of the age, to the effect that the anti-slavery viewpoint ‘would be uphill work in the Court of King's Bench’.

On the other hand, some of the earlier precedents, especially a celebrated dictum from Lord Northington, a previous Lord Chancellor, to the effect that the air of England was ‘too pure for a slave to breathe’ (Shanley v. Harvey (1762)) indicated that the common law did not acknowledge slavery, and there was also some current judicial support for this view (Wiecek 1974). Sharp himself had succeeded in one such case in 1770, when he was called to the assistance of Thomas Lewis, a slave, by a Mrs Banks, whose servants had heard his screams and rescued him from two watermen who were dragging him to a boat with the intention of selling him as a slave in Jamaica. Mrs Banks was so moved that she professed her willingness to meet the costs ‘of bringing the delinquents to justice’ and Sharp successfully applied for habeas corpus on Lewis's account (Lascelles 1928: 16–34). But the case was not decisive. Lord Mansfield, the presiding judge, was able to side-step the issue because the jury's verdict was ambiguous: it was not clear whether the jury meant that there could be no slavery or merely that Lewis was not a slave (Fiddes 1934: 504). So Sharp was looking for an opportunity to test these contrary views of the law and James Somerset provided the perfect test case.

An application for habeas corpus was made on Somerset's behalf and this time Lord Mansfield had to face the issue. He urged a settlement but to his chagrin both sides wanted to test the law. Stewart, the slavemaster, thus chose to rest his case on ownership rather than to adopt an alternative argument suggested by Lord Mansfield that an enforceable contract existed between the slave and his master.

History has been generous to Lord Mansfield, whose grudging ruling was given only after he had several times unsuccessfully adjourned his court in the hope of settlement. In the end Lord Mansfield was persuaded to rule against Stewart, ending with a famous peroration which gave the impression, at least, that Mansfield rejected slavery on overriding moral grounds:

The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory; it's so odious, that nothing can be suffered to support it, but only positive law. Whatever inconveniences, therefore, may follow from a decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.

(Somerset v. Stewart (1772))

On the face of it, this was a substantial victory for Sharp. But did it ‘end slavery’, as many people today, including professional historians who credit a judicial decision with the abolition of slavery in England, believe (Klingsberg 1926: 40)? Lord Mansfield himself understood the true ambit of the decision to be (i) that a slavemaster cannot seize his slave on English soil against the latter's will; and (ii) that habeas corpus will lie to prevent this.¹ In other words, the onus lay with the slave. If he was content to stay with his master, this was not against the law; if, on the other hand, he was courageous enough to escape, he could not be retaken (Lorimer 1984). At the time, however, the judgment was widely misinterpreted and possibly even misreported (Nadelhaft 1966: 200–1). A myth grew up about the successful decision; the Press, the British public and Granville Sharp himself, all spoke as though it had abolished slavery in England. Some people, including American abolitionists and judges, thought it went even further and challenged slavery in America and British colonies as well. Between 14,000 and 15,000 slaves were stated incorrectly by contemporary newspapers to have ‘received their freedom’ as a result of Somerset's case and it is the peroration attributed to Lord Mansfield which gave the decision its resonance and enabled it to play a central role in the American anti-slavery movement (Nadelhaft 1966). Perhaps myths, but they were to endure.

There are several further points to be made about this case. First, on the surface it is a private lawsuit between two individuals: Somerset and his master, Stewart. We can now see what contemporaries may have known: that behind the slave stood a group of other people not directly interested in the case but prepared (like Sharp) to take over its organisation or (like Mrs Banks in the Lewis case) to defray the expenses, which might be very considerable. In Somerset's case we know that counsel accepted no fee for their services (in technical terminology, they acted pro bono or pro deo). This was a common practice in such cases before the introduction of legal aid made it more or less unnecessary. Although the test case was a clear example of pressure through law, it was not a pressure-group case: Somerset's sponsors acted as generous and philanthropic individuals. Several years later, however, Granville Sharp was instrumental in setting up a pressure group when in 1787 he became a founder member and Chairman of the Committee for the Abolition of the Slave Trade. Thus the sponsor, who made the abolition of slavery his life-work, was a forerunner of the many philanthropists who were to become a feature of the Victorian political scene (Hollis 1974).

Let us follow the Committee (later Society) for the Abolition of the Slave Trade a little further. In 1807 it became the African Institution, after it had become interested in the fate of freed slaves and hence in the foundation of Liberia. In 1823 this became the Anti-Slavery Society, later the British and Foreign Anti-Slavery Society, which in turn became the Anti-Slavery Society for the Protection of Human Rights. There was a regular network of such philanthropic associations in nineteenth-century England, often centring around well-known philanthropic dynasties, such as the Frys, with their enduring interest in penal reform, or charismatic personalities like Lord Shaftesbury.² Many of these people were active in several groups. Granville Sharp himself was interested in the British and Foreign Bible Society. William Wilberforce, the most famous of all abolitionists, was from its formation the parliamentary representative of the Abolition Society and later chairman of the Anti-Slavery Society but we shall also find him active in the Vice Society. Shaftesbury was active in the National Society for the Prevention of Cruelty to Children as well as in the Climbing Boys' Society, both of which used law to achieve their political ends. The groups are often difficult to trace because they split, fuse, merge and change names and objectives quite as often as the abolitionists did. There can be no doubt however that the personalities as well as the groups were closely interlinked. In other words, possibilities for ‘networking’ existed.

Now let us consider the effects of Somerset's case. Inside the country, the abolitionists' victory was complete when, six years later, Sharp was able to obtain a similar ruling fom the Scottish courts (Knight v. Wedderburn (1778)). Now they had to change tack; the reforms for which they were asking could no longer be secured by judicial decision; legislation and governmental initiative became essential. The Abolitionists were becoming a well-organised lobby, utilising many of the techniques still familiar in the modern literature of political science: organised mass meetings, mammoth petitions presented to Parliament, regular briefing of MPs and peers (they also had their own parliamentary spokesmen, including Wilberforce) and, even at this early date, a boycott of goods produced by slaves (Klingsberg 1926: 40–1). Their legislative successes came slowly and, not unusually, in piecemeal fashion. In 1807, the abolition of British participation in the African slave trade was secured; 1819 saw a Registration Act, designed to limit the numbers of slaves in British colonies and prevent evasion of the 1807 Act; finally, in 1833, an Act for the Abolition of Slavery throughout the British Colonies reached the statute book. The focus of activity had changed once again. From that time on, the anti-slavery movement would need to operate on an international plane — as it does today. In Chapter 6 we shall find the London-based Anti-Slavery Society working with the United Nations to exterminate oppressive practices resembling slavery throughout the world.

There were, so far as we can tell, no more test cases to help the campaigners on their way — at least, not in this country — though Sharp and others had from time to time to come to the rescue of individual slaves illegally impounded and see the law enforced (Fiddes 1934: 509). But the slavery question did come before the British courts again in one case in which the scope of Lord Mansfield's judgment had to be directly considered. Did it really mean, as so many people thought, that a slave became free as soon as he or she set foot on British soil? The Slave Grace (1827) concerned the Registration Act of 1819. A West Indian resident had travelled to England with Grace, her personal maid and later returned with her to the West Indies. Grace made no protest and her mistress neither obtained nor even realised that she needed a certificate to re-enter the West Indies with a slave. Moreover, she was not challenged by the customs officer, who knew them both, and two years elapsed before a prosecution was brought. On appeal, the case came before Lord Stowell, who ruled that entry into Britain was not enough of itself to free a slave; if the slave subsequently returned voluntarily to the West Indies without claiming his or her liberty he or she would revert to the condition of slave. Criticising Lord Mansfield's judgment, he confirmed that the ambit of the ruling had been exaggerated.

The relevance of this judgment to our theme lies in what followed. Although it did not come as a surprise, Lord Stowell's judgment was not particularly welcome to the abolitionists. It effectively curtailed Lord Mansfield's 1778 ruling by holding that slavery was suspended not ended, by presence on British soil. Stowell defended himself, however, in a letter to Justice Joseph Story of the American Supreme Court, which is interesting in that it presents an argument concerning the respective uses of litigation and legislation — in other words, the balance of power between court and Parliament — which is still very relevant today. Stowell first makes his personal position plain as ‘rather a stern abolitionist’ and ‘a friend to abolition generally’. He then maintains that courts, in implementing social policy of this type, may cause great harm to individuals and that it is to Parliament, which has the greater responsibility and standing in the matter, which ‘our zealots’ ought to turn (Story 1851: 554–5). This is the more interesting because, in Somerset's case Lord Mansfield had come to a converse conclusion, effectively putting the onus on the anti-abolitionists to see the law changed:

If the parties will have judgment, fiat justitia, ruat coelum, let justice be done whatever be the consequence … We cannot … direct the law; the law must rule us … An application to Parliament, if the merchants think the question of great commercial concern, is the best, and perhaps the only method of settling the point for the future.

(Somerset v. Stewart (1772))

If we did not know how strenuously Lord Mansfield had sought to avoid deciding the point of principle involved in Somerset's case, we might think we were looking at a difference of opinion between (in modern terminology) an ‘activist’ or ‘interventionist’ and a ‘non-interventionist’ or ‘constructivist’ judge. This is a constitutional argument which has become very familiar in the United States, where the activities of the Supreme Court in civil liberties cases have unleashed an avalanche of argument over the proper constitutional ambit of judicial review. One tends to think of this as a modern argument, postdating suffrage reform. It is therefore interesting to see that, in these early cases, both judges describe the relationship between judges and Parliament in roughly the same way.

COURTS AND POLITICAL CASES

We have dwelt on the Somerset v. Stewart case because, in terms of the definitions in our Introduction, it is a test case. It was brought to establish what the law really was. In it, Lord Mansfield was asked to declare whether or not a ‘right’ existed or even, some would say in view of the previous precedents, to create a ‘right’. The citation from his judgment shows that he was very well aware of, and saw nothing novel in, this. The place of the courts in establishing political liberties was as well-understood by radicals and reformers as was its place in upholding authority by government and the establishment. The role of courts in the political process and of judges as political actors was well understood. On occasion it might even bring courts and Parliament into direct conflict.

Just before Somerset's case in the Reports, we find reported the case of Wilkes v. Wood (1763). This is one of a series of cases usually known as the ‘General Warrant’ cases, which also includes Entick v. Carrington (1765) and Leach v. Money (1765), in which the courts were asked to pronounce on the extent of the common law powers of arrest, search and seizure. The actions were brought against ministers of the Crown who had issued warrants without specifying the individuals, premises or goods to be acted against. Eighteenth-century opponents of this practice compared it in terms to the tyrannical lettres de cachet issued by French monarchs to authorise arbitrary detention in the Bastille, so that the cases in which Chief Justice Pratt and Lord Mansfield were persuaded to rule against the practice of general warrants were both crucially important for civil liberties and were understood at the time to represent a great victory, moral as well as political, over the government of the day. In every sense of the term, they were test cases.

Yet this is far from obvious in the Reports. Each case is brought in the name of an individual while the parties sued are subordinate officials, so that it is not at first clear either that the Secretary of State for Home Affairs was involved or that a crucial governmental ‘police power’ is in issue. Closer examination reveals that behind all these cases stands one man, the radical politician, John Wilkes, libertarian and rebel Member of Parliament. The searches, arrests and seizures challenged all involved attempts by the government during the years 1762–3 to close down his newspaper, The North Briton, regarded as subversive, and the plaintiffs were his printers and publishers. Who financed the cases we cannot be sure but we do know that the plaintiffs had been encouraged by Wilkes to sue after the latter had successfully prosecuted Lord Halifax, the Home Secretary, and had been awarded substantial sums in damages. The tactic was strikingly successful; in one year, fourteen printers were awarded damages.

And John Wilkes was no ordinary litigant; this was neither his first nor last encounter with the law. He had already applied for a writ of habeas corpus when arrested on a Speaker's warrant for a criminal libel arising from a privately printed pornographic satire, The Essay on Women. He was not a journalist but the leader of a political faction which commanded substantial support outside Parliament. In 1769, during or shortly after Wilkes's self-imposed exile in France, a group of his supporters, on the initiative of John Home Tooke, met in a tavern to found the ‘Society for Supporting the Bill of Rights’, one purpose of which was to support Wilkes financially. It was in fact extremely successful in appealing to City supporters for funds but its aims were much wider, it having been ‘originally instituted for the express purpose of supporting all those whose rights had been violated, whose fortunes had been injured, or whose persons had been seized and imprisoned, in opposition to the laws of the land’ (Stephens 1813: 104). The Society came to a sticky end in 1771 following Wilkes's self-interested refusal to allow it to participate financially in the defence of Bingley, a Wilkite publisher who had been sentenced by Lord Mansfield to three years' imprisonment after Mansfield had unsuccessfully tried to revive the powers of the Star Chamber by personally conducting his interrog...

Table of contents

• Cover
• Half Title
• Full Title
• Copyright
• CONTENTS
• List of tables
• Acknowledgements
• Note on references and abbreviations
• Table of cases
• INTRODUCTION
• 1 PHILANTHROPY AND DISSENT
• 2 LIBERTY THROUGH LEGALITY: THE UNITED STATES EXPERIENCE
• 3 GROUP ACTION IN THE CIVIL COURTS
• 4 COURTS, CAMPAIGNS AND LOBBYISTS
• 5 THE STRONG ARM OF THE LAW
• 6 GLOBAL POLITICS, TRANSNATIONAL LAW
• 7 PRESSURE THROUGH LAW
• Notes
• Bibliography
• Index