Slavery, Law, and Race in England and its New World Empire
Keywords:
Common law of slavery British Empire Racial formation Race and law Chattel slaveryAbstract
AbstractThis paper responds to Holly Brewer's article “Creating a Common Law of Slavery for England and its New World Empire.” Brewer traces a process begun by Charles I, in collaboration with his appointed judges, to legalize the buying and selling of people in England and its Empire. Brewer's work is a much-needed reconstruction of the legal precedents that transformed people into chattel, enabling the business of slavery in the seventeenth and eighteenth centuries. Yet race does not receive any engagement as a category of analysis. Missing is an account of the historical processes whereby laws about slavery contributed to racial formation. Although the global expansion of the British Empire coincided with a new emphasis on rule of law and equality before the law, bound labor and persistent questions of race, gender, status, age, nation, and boundary called attention to the contradictions embodied in Enlightenment thought and its proclaimed universal values.
References
Most recently Morgan, Jennifer, Reckoning with Slavery: Gender, Kinship and Capitalism in the Early Black Atlantic (Durham, NC: Duke University Press, 2021)Google Scholar; and Newman, Brooke, A Dark Inheritance: Blood, Race, and Sex in Colonial Jamaica (New Haven, CT: Yale University Press, 2018)Google Scholar.
2
Holly Brewer, “Slavery, Sovereignty, and ‘Inheritable Blood’: Reconsidering John Locke and the Origins of American Slavery,” The American Historical Review 122 (2017): 1038–78; and Sabine Broecke, “‘Never Shall We Be Slaves’: Locke's Treatises, Slavery and Early European Modernity,” in Blackening Europe: the African American Presence, ed. Heike Raphael-Hernandez (London: Routledge, 2004), 235–47, for example “the free man's right to own himself, to be his own person—and thus to be precisely distinct and distinguished from slaves who are subjected to some other party's whims and powers—is what Locke foremost among his contemporaries, articulates” at 239.
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Peter King, Crime, Justice and Discretion in England, 1740–1820 (Oxford: Oxford University Press, 2000).
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For more on popular literature and crime in early modern England, see V.A.C. Gatrell, The Hanging Tree: Execution and the English People, 1770–1868 (Oxford: Oxford University Press, 1994); Andrea McKenzie, Tyburn's Martyrs: Execution in England, 1675-1775 (London: Hambledon Contimuum, 2007); and Greg T. Smith, Allyson N. May, and Simon Devereaux, eds., Criminal Justice in the Old World and the New: Essays in Honour of J. M. Beattie (Toronto: Centre of Criminology, University of Toronto, 1998).
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Commentary about the market in used clothing revealed anxiety about impostors who dressed above their station. Beverley Lemire, “The Theft of Clothes and Popular Consumerism in Early Modern England,” Journal of Social History 24 (1990): 255–76 and Melissa Mowry, “Dressing Up and Dressing Down: Prostitution, Pornography, and the Seventeenth-Century Textile Industry,” Journal of Women's History 11 (1999): 78–103.
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Mark Dawson, Bodies Complexioned: Human Variation and Racism in Early Modern English Culture, c. 1600–1750 (Manchester: Manchester University Press, 2019). Studies of race in the early modern period include Kim Hall, Things of Darkness: Economies of Race and Gender in Early Modern England (Ithaca: Cornell University Press, 1995); Ania Loomba, “Periodization, Race, and Global Contact,” Journal of Medieval and Early Modern Studies 37 (2007): 595–620; Catherine Molineux, “Hogarth's Fashionable Slaves: Moral Corruption in Eighteenth-Century London,” English Literary History 72 (2005): 495–520; Jennifer Morgan, “‘Some Could Suckle Over Their Shoulder’: Male Travelers, Female Bodies, and the Gendering of Racial Ideology, 1500–1770,” William and Mary Quarterly 54 (1997): 167–92; Cecily Jones, Engendering Whiteness: White Women and Colonialism in Barbados and North Carolina, 1627–1865 (Manchester: Manchester University Press, 2007); Dror Wahrman, The Making of the Modern Self: Identity and Culture in Eighteenth-Century England (New Haven, CT: Yale University Press, 2004); and Roxann Wheeler, The Complexion of Race: Categories of Difference in Eighteenth-Century British Culture (Philadelphia: University of Pennsylvania Press, 2002).
8
Slavery and the legal apparatus that supported it stand as one of the biggest contradictions within Enlightenment thought. For more on slavery in England and throughout the empire, see Dana Rabin, “Empire on Trial: Slavery, Villeinage and Law in Imperial Britain,” in Legal Histories of the British Empire: Laws, Engagements and Legacies, ed. John McLaren and Shaunnagh Dorsett (New York: Routledge, 2014), 203–17; and Kenneth Morgan, Slavery and the British Empire: From Africa to America (Oxford: Oxford University Press, 2007). For slavery and law in France and its empire, see Malick Ghachem, “Montesquieu in the Caribbean: The Colonial Enlightenment between ‘Code Noir’ and ‘Code Civil,” Historical Reflections 25 (1999): 183–210; Malick Ghachem, The Old Regime and the Haitian Revolution (Cambridge: Cambridge University Press, 2012); and Sue Peabody, There Are No Slaves in France: The Political Culture of Race and Slavery in the Ancient Regime (Oxford: Oxford University Press, 1996).
9
Susan Amussen, Caribbean Exchanges: Slavery and the Transformation of English Society, 1640–1700 (Chapel Hill, NC: University of North Carolina Press, 2007); Kristin Block, Ordinary Lives in the Early Caribbean: Religion, Colonial Competition, and the Politics of Profit (Athens, GA: University of Georgia Press, 2012); Jones, Engendering Whiteness; Loomba, “Periodization”; and Jenny Shaw, Everyday Life in the Early English Caribbean: Irish, Africans, and the Construction of Difference (Athens, GA: University of Georgia Press, 2013).
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Michael Craton, James Walvin, and David Wright, eds., Slavery, Abolition and Emancipation: Black Slaves and the British Empire (New York: Longman, 1976), 180.
11
For the treatment of non-white defendants in English court, see Peter King, “Ethnicity, Prejudice, and Justice: The Treatment of the Irish at the Old Bailey, 1750–1825,” The Journal of British Studies 52 (2013): 390–414; and Peter King and John Carter Wood, “Black People and the Criminal Justice System: Prejudice and Practice in Later Eighteenth- and Early Nineteenth-Century London,” Historical Research 88 (2015): 100–24.
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Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400–1900 (Cambridge: Cambridge University Press, 2010); Eliga Gould, “Zones of Law, Zones of Violence: The Legal Geography of the British Atlantic, circa 1772,” William and Mary Quarterly 60 (2003): 471–510; James Epstein, Scandal of Colonial Rule: Power and Subversion in the British Atlantic during the Age of Revolution (Cambridge: Cambridge University Press, 2012); Paul Halliday, Habeas Corpus: From England to Empire (Cambridge, MA: Harvard University Press, 2010); and P. J. Marshall, “Britain and the World in the Eighteenth Century: IV, The Turning Outwards of Britain,” Transactions of the Royal Historical Society 11 (2001): 1–15. The legal relationship between colony and metropole was pioneered by Jack P. Green, Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States, 1607–1788 (Athens, GA: University of Georgia Press, 1986); and Mary Sarah Bilder, The Transatlantic Constitution: Colonial Legal Culture and the Empire (Cambridge, MA: Harvard University Press, 2004).
13
Edward Rugemer, Slave Law and the Politics of Resistance in the Early Atlantic World (Cambridge, MA: Harvard University Press, 2018).
14
It is in this same spirit of blaming the Stuarts that Brewer finds redemption for John Locke and the Whigs. Brewer, “Slavery, Sovereignty, and ‘Inheritable Blood.’”
15
The work of Ruth Paley, Cristina Malcolmson, and Michael Hunter in “Parliament and Slavery, 1660–1710,” Slavery and Abolition 31 (2010): 257–81, presents evidence of a discussion of slavery in Parliament that does not constitute anti-slavery sentiment or policy.
16
Conversation with Melissa Mowry, January, 2022.
17
Melissa Mowry, Collective Understanding, Radicalism, and Literary History, 1645–1742 (Oxford: Oxford University Press, 2021),154, 170.
18
Somerset v Stewart was neither the first nor the last case in which Mansfield was confronted with the subject of slavery. On Mansfield's subsequent and most famous case, see Ian Baucom, Specters of the Atlantic: Finance Capital, Slavery, and the Philosophy of History (Durham, NC: Duke University Press, 2005); Jeremy Krikler, “The Zong and the Lord Chief Justice,” History Workshop Journal 64 (2008): 29–47; and Anita Rupprecht, “Excessive Memories: Slavery, Insurance and Resistance,” History Workshop Journal 64 (2008): 6–28.
19
James Oldham, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century, 2 volumes (Chapel Hill, NC: University of North Carolina Press, 1992), 2:1225–26 and 2:1242–43. The details of the case along with some of the relevant primary sources are recounted by Prince Hoare in Memoirs of Granville Sharpe (London: H. Colburn, 1820), 52–61.
20
Hoare, Memoirs, 59.
21
This “opinion,” known as Yorke-Talbot, was rendered over coffee at Lincoln's Inn while the judges were in conversation with West Indian planters. Yorke's decision in Pearne v. Lisle is found in Reports of cases argued and determined in the High Court of Chancery, with some few in other courts. By Charles Ambler, … (London: T. Whieldon, 1790), 75 and in 27 English Law Reports, 47 (1749).
22
Dana Y. Rabin, Britain and Its Internal Others, 1750–1800: Under Rule of Law (Manchester: University of Manchester Press, 2017), 1.
23
William Blackstone describes the attributes of English law and its emancipatory power throughout the four volumes of his Commentaries on the Laws of England, first published in 1765–69 (Chicago: University of Chicago Press, 1979), but especially in 1:6, 63–64, 120, 136, 156. Blackstone concludes that together, written and unwritten law made up England's constitution whose “very end and scope” Blackstone proclaimed was “political or civil liberty.”
24
E. P. Thompson, Whigs and Hunters: The Origins of the Black Act (New York: Pantheon Books, 1975), especially 258–69.
25
For more on the active role of the enslaved in their self emancipation, see Lorimer, Douglas “Black Slaves and English Liberty: a Re-examination of Racial Slavery in England,” Immigrants and Minorities 3 (1984): 121–50CrossRefGoogle Scholar.
26
Brown, Christopher, Moral Capital: Foundations of British Abolitionism (Chapel Hill, NC: University of North Carolina Press, 2006)Google Scholar.
