Creating a Common Law of Slavery for England and its New World Empire

Abstract

The current historical consensus is that English common law was somewhat confused, but that coerced servitude was legal in England before 1772, and certainly in its empire, where English law on slavery did not reach, because it was “beyond the line” of English justice. The common law is characterized by an effort to see continuity and consistency, and historians (despite our natural desire to track change) often look for those patterns too. Such efforts to provide a consistent overview of an England that was free and colonies that created slavery on their own—have obscured the vibrant struggle over slavery within the English judicial system—the common law—over more than a century. Not only did the common law on slavery change profoundly during the seventeenth and eighteenth centuries: the common law became an instrument of crown policy. It did so within a federal empire, wherein colonial legal norms had to adhere, in crucial ways, to that common law. English high court judges thus provided the legal foundation for an imperial common law of slavery that allowed people to be deemed absolute property. That definition of people as property was closely connected to absolutism, both in theory and practice. In theory the absolute power of kings over subjects was connected to that of masters over slaves. In practice, the crown's use of the courts to create laws without parliamentary consent (to bypass parliament) also increased crown revenue and thus their independence from parliamentary control. These powerful legal mechanisms made it possible to “recover” enslaved people as assets for debts, a legal definition that was essential for a market in people to function sucessfully. This history reveals the absolutist character of early capitalism, and the extent to which the character of capitalist development depends on the legal rules that define markets and justice.

Reconstructing Class Analysis

“…enslavement of workers in British commodity export-oriented plantations was already central to conflicts over enforcement of property claims in workers for well over a century before the American Revolution, and racialization was its resolution (Brewer 2021). In Stuart Hall's classic formulation, addressing racialized class relations in Caribbean and Latin American, as well as British and American, societies, "race is the modality in which class is 'lived'" (Hall 1980, 341) 38 within the historically-specific relations of capitalist accumulation.…”

Judicial Production of Racial Injustice in Taiwo v Olaigbe: Decolonising the Incomplete Story on Race and Contracting

“…First, a decolonial judicial approach should be able to see and acknowledge a long history of racial bias in judicial reasoning (for more on this, see : Rabin, 2022;Brewer, 2021). Research in legal history has shown how the judiciary contributed to creating and supporting the colonial rule of the British Empire.…”

“…After emancipation, the planters continued to act as magistrates and dispensed justice, sometimes very harshly' (Bobb-Semple, 2012: 37). The courts' historical task of constructing and managing otherness extended beyond criminal law, including social relations of the Empire's subjects in relation to land, property, family and business (Brewer, 2021;Mawani, 2018;Rabin, 2022). Historian Ibhawoh, in his study of Privy Council decisions within the African context, has offered an illuminating account of the ways in which local, customary laws and traditions of the colonies were adapted to British justice.…”

The Scottish Enlightenment and the Remaking of Modern History

“…By reconstructing this Scottish debate about the feudal origins of modern Europe, this article builds on recent scholarship that reveals the extent to which seventeenth-and eighteenth-century visions of political order across the British Atlantic world relied on the periodization and conceptualization of feudal history. 29 The article also hopes to begin rethinking the place of the Scottish Enlightenment in the intellectual history of the British empire. Within this historiography, eighteenth-century Scotland is cast as a seedbed of cosmopolitan politics that nourished the intellectual culture of nineteenthcentury Britain.…”