Empire on trial: slavery, villeinage and law in imperial Britain

Chapter 14
Empire on trial

Slavery, villeinage and law in imperial Britain

Dana Rabin

James Somerset was born in West Africa around 1741. When he was eight years old, he was bought by European slave traders and sold in Virginia to Charles Stewart, a Scottish merchant. Stewart (and Somerset as part of his household) travelled among the northern American colonies, moving to Boston in 1764 and relocating to London in 1768. On 1 October 1771 Somerset left his master’s house and refused to return. After two months, he was captured by slave hunters and, on Stewart’s orders, delivered to the custody of one John Knowles, captain of the ship Ann and Mary where he was confined in irons and bound for sale in Jamaica. Abolitionists working on Somerset’s behalf publicized his situation and applied to Chief Justice of the King’s Bench, Lord Mansfield, for a writ of habeas corpus. Eventually his case attracted the attention of the prominent abolitionist Granville Sharp.1

Slavery in the colonies had legal sanction established through slave codes passed by colonial assemblies in the British Caribbean and in North America. Starting in the mid seventeenth century colonial legislation defined slaves as property without any protection from the common law; these laws always referred to slave status through the colour of their skin using words such as negro, mulatto and Indian.2 Somerset’s case was immediately seen as a test of the legality of slavery in England, and its proceedings were followed closely both by West Indian planters and abolitionists. While the planters campaigned for a decision that would recognize colonial laws relating to slavery and enforce them in the metropole, Granville Sharp advocated a ruling that would forbid slavery in England. Although it resulted in Somerset’s discharge, Mansfield’s ruling did not outlaw slavery in England. Instead, Mansfield resolved only the question of the applicability of the writ of habeas corpus to the facts. He declared illegal the coerced transportation of slaves from England and remained silent on the general question of the legal status of slavery in England and throughout the empire.

The Somerset case has been the object of inquiry for scholars investigating the history of slavery, the African presence in Britain, labour conditions in the British Empire and slavery in the American colonies.3 Much of this scholarship either ignores or downplays the issue of race.4 I argue that the issue of race was in fact fundamental to Somerset’s case. In it, blackness and property were not equated, but whiteness and freedom were inextricably bound together. Through discussions of the precedent of villeinage, both proponents and opponents of slavery constituted whiteness as the privilege and inheritance of those who Edward Long described as ‘genuine and natural-born subjects’.5 The case reminds us that the law served in the imperial system as a node in which ideas and experiences were generated and exchanged. Neither metropolitan nor colonial, the law mediated these interactions, by producing legal categories and attempting to fix cultural boundaries.


England in the eighteenth century and London in particular was racially diverse.6 By no means segregated, blacks and whites lived in close proximity, socialized and intermarried.7 Eighteenth-century Britain’s visual culture yields a rich record of black presence in England, especially the portraits of wealthy, absentee landlords surrounded by their families, servants and slaves.8 Some contemporaries resisted the incorporation of the colonial experience into the metropole. A letter reprinted in The Gentleman’s Magazine in 1764 protested ‘the practice of importing Negroe servants into these kingdoms’, explaining:

[Africans] cease to consider themselves as slaves in this free country, nor will they put up with an inequality of treatment, or more willingly perform the laborious offices of servitude than our own people, and if put to do it, are generally sullen, spiteful, treacherous, and revengeful.9

The author complained that living in England changed the slave’s status in fundamental and inappropriate ways, upending established colonial hierarchies by bringing them to bear on metropolitan sensibilities.

John Fielding echoed these concerns in 1768. In his comments on an Act for the better adjusting and more easy Recovery of the Wages of certain Servants, and for the better Regulation of such Servants, Fielding discussed the ‘confusion’ that resulted when West Indian slave owners brought their slaves to England.10 He too characterized the black slaves as defiant and mutinous.11 For Fielding, black slaves brought to England posed an even greater danger if they were returned to the colonies because the transformations rendered by the ‘Sweets of Liberty and the Conversation with free Men and Christians, enlarge their Minds… and imbitter their State of Slavery’, leading to ‘the blackest Conspiracies against their Governors and Masters’.12 At stake was political and economic stability.

Making Distinctions

It was this England that James Somerset entered in 1768. The ambiguity of his position – foreign and racially other, living in England but raised in the colonies and in Africa, slave and servant – reflects what one scholar has called the ‘indeterminate’, ‘ambiguous’ and ‘equivocal’ legal landscape of ‘judge-made law’ on the legality of slavery in England, dating back to the sixteenth century.13 The rulings in these cases did not dispute the legality of colonial slavery and none resolved the contradiction between the ownership of human beings and an English legal system that claimed to favour liberty. The legal arguments emphasized the deep fundamental tension between property and liberty created by slavery.

The earliest mention of slavery in the English courts is Cartwright’s Case (1596), an unreported case referenced during the Star Chamber trial of John Lilburne in 1637 during a discussion of the level of physical punishment, including whipping and flagellation, acceptable in England. Cartwright brought his slave from Russia to England ‘and would scourge him’. The court questioned him about the physical punishment he inflicted on his slave, and ‘resolved That England was too pure an Air for Slaves to breath in’.14 This conclusion was quoted and misquoted often in subsequent debates about slavery’s legal status in England, misrepresented as an unequivocal statement of the illegal status of slavery in England instead of a comment on the limits of acceptable physical punishment addressed in its original context.

For many legal scholars in later cases, discussions of the status of slaves in England revolved around whether they considered villeinage a precedent for chattel slavery. The argument for the legality of slavery in England was made on the basis of analogy between slavery and the ‘complete subjection to a feudal lord or superior’, known as villeinage.15 Why turn to such an antiquated legal category? According to William Holdsworth, the last case of villeinage in legal record was Pigg v Caley (1618).16 In Periodization and Sovereignty Kathleen Davis shows how feudal historiography developed in England in the sixteenth and seventeenth centuries when legal scholars whom she calls feudists, including most prominently John Selden (1584–1654) and Henry Spelman (1563/4–1641), ‘began to “discover” that England had been “feudal”’.17 Davis argues that this rediscovery of feudalism was necessary because ‘at the very moment the colonial slave trade began to soar, feudal law and slavery were grouped together and identified as characteristic of Europe’s past and of a non-European present’.18 In the legal discussion of villeinage traced below, the legal commentators and lawyers highlight the medieval law of villeinage to make a distinction between villeins and raced, chattel slavery, thereby whitening villeinage.

What did it mean to compare villeins with slaves?19 Villeins occupied a plot of land on a manor in exchange for their labour. They took an oath of fealty to the owner of the manor that according to William Blackstone ‘conferred a right of protection, and raised the tenant to a kind of estate superior to downright slavery, but inferior to every other condition’.20 There were two kinds of villeins: regardant, ‘annexed to the manor or land’ and in gross, ‘at large, that is annexed to the person of the land’.21 Although William Blackstone distinguished them from slaves, he also explained that villeins had no physical autonomy: they required the lord’s permission before they left the estate and ‘if they ran away… might be claimed and recovered by action, like beasts or other chattels’.22

Legally, villeins ranked between free labourers and unfree chattel slaves. Villeins owed labour to their lord who could impel them to do whatever labour he wanted. When not engaged in the labour owed the lord, the villeins’ time was their own. Although villeins ‘belonged’ to their lords and had no rights in the face of their masters, they had rights and privileges unknown in chattel slavery: Brian Simpson writes that when it came to ‘the rest of the world they were accorded the rights of free men’.23 They could purchase land or goods with the proviso that the lord could seize those assets at any time.24 For a fee and their lord’s consent, they could marry. Like noble status, a villein’s status was hereditary.25 Unlike slaves in the colonies, if a villein married a free person, any children would inherit their father’s status. Again unlike slaves, the law recognized villeins as ‘the king’s subjects’ and protected them ‘against atrocious injuries of the lord’.26 Female villeins ‘had an appeal of rape, in case the lord violated them by force’.27 These rights inherent to a villein limited the analogy of slavery to villeinage. Although slaves created opportunities for themselves in countless ways, they had no inherent legal rights in colonial law.

In Butts v Penny (1677) the Court of King’s Bench affirmed a trover claim in ten blacks from Southeast Asia, the focus of a property dispute, citing the fact that ‘the negroes were infidels, and the subjects of an infidel prince, and are usually bought and sold in America as merchandise, by the custom of merchants’.28 In answer to the defendant’s claim that ‘there could be no property in the person of a man sufficient to maintain trover’ and that ‘no property could be in villains [sic] but by compact or conquest’, the court reiterated its original point citing the regular buying and selling of ‘negroes’ as merchandise among merchants and ‘also being infidels’.29 This is an important exchange because it references the contractual nature of villeinage which assumed some consent on the part of the villein when he/she entered into the relationship. Although one can certainly argue about how free or coerced the level of consent, its mere mention, hypothetical or real, distinguished it from chattel slavery. The case resolved with a special and vague verdict which stated that ‘here [there?] could be no property in the plaintiff more than in villeins’.30 The judges in this case had it both ways: they found for a claim of trover within the framework of a feudal system characterized by villeinage.

In contrast to the ruling in Butts v Penny some jurists seemed to reject the legality of slavery in England and refused to accept the argument that slavery was a variation of villeinage. In decisions rendered in 1697, 1701 and 1706 Lord Chief Justice Holt declared villeinage and slavery different and unrelated institutions, the former legally authorized though defunct, and the latter foreign and impermissible in Britain.31 Chamberline v Harvey (1697) discussed in greater detail below, involved a slave brought to England from Barbados. Chamberline sued Harvey for trespass and damages resulting from Harvey’s friendship with and employment of Chamberline’s slave; Harvey claimed that by natural law no man could own another human being. Although the jury was sympathetic to the accusation of trespass, Holt seemed to side with Harvey when he ruled that ‘by the laws of England one man cannot have an absolute property in the person of another man’.32 Holt contradicted the finding of trover in Butts v Penny and ruled instead that ‘trover will not lie for a negro’.33

The plaintiff in Smith v Brown and Cooper (1701) appeared before King’s Bench to recover the price of a ‘negro’ who, according to an agreement signed in Virginia, had previously been sold to the defendant. Holt declared that ‘as soon as a negro comes into England, he becomes free, one may be a villein in England, but not a slave’. Rather than declaring all slavery illegal, Holt advised the slave’s owner that he ‘should have averred in the Declaration that the sale was in Virginia, and by the Laws of that Country, Negroes are saleable’. The decision acknowledged the existence of multiple jurisdictions in the empire and the sometimes contradictory laws passed and enforced by colonial assemblies. Without commenting on those contradictions, Holt recognized Virginia’s legalization of chattel slavery and claimed that ‘the Laws of England do not extend to Virginia, being a conquered Country, their Law is what the King pleases; and we cannot take Notice of it but as set forth’. Holt ‘directed’ the Plaintiff to change the wording of the declaration to reflect the fact that although the defendant ‘was indebted to the Plaintiff for the Negro sold here in London’, the sale had been made in Virginia where ‘Negroes by the Laws and Statutes of Virginia, are saleable as Chattels’ rather than in the parish of St Mary-le-Bow.34 Regarding English law, servitude, slavery and villeinage, the decision upheld the coerced servitude of a slave brought to England, but determined that in England his/her status was comparable to that of a villein rather than chattel.

Smith v Gould (1705/6) again disallowed trover for a black slave, but strengthened the power of slave owners with a ruling that stated that ‘villenage [sic] arose from captivity, and a man may have trespass’. The decision concluded with a declaration that ‘the court seemed to think that in trespass… the plaintiff might give in evidence that the party was his negro and bought him’. This acknowledgement that men could be bought gave slave owners a greater ability to sue for damages in an English court. The decision also stated that ‘if I imprison my Negro, a Habeas Corpus will not lie to deliver him, for by Magna Charta he must be Liber homo’.35 Later in the century Shanley v Harvey (1762) reversed this conclusion about a slave’s right to habeas corpus. The case involved a dispute over a large amount of money – £700 or £800 – bequeathed by Margaret Hamilton to her slave Joseph Harvey as she lay dying in July 1752. The administrator of Hamilton’s estate, Edward Shanley, sued to retrieve the money, but the case ended abruptly when Lord Chancellor Robert Henley who presided at the trial declared that ‘As soon as a man sets foot on English ground he is free: a Negro may maintain an action against his master for ill usage, and may have a Habeas Corpus if restrained of his liberty.’36

In contrast to these cases that equivocated on the equation of slaves as property, the Yorke–Talbot opinion of 1729 declared that a slave’s arrival in Great Britain had no liberating effect and no impact on a master’s rights to his property. After his promotion to Lord Chancellor, Sir Philip Yorke (now the first Earl of Hardwicke) averred in the Pearne v Lisle decision of 1749 that a slave ‘is as much property as [is] any other thing’.37 In the Pearne case the court adjudicated a debt owed for the rent of fourteen black slaves. The defendant, who withheld the two-year rental fee and refused to return the slaves to their owner, threatened to abscond to Antigua without paying: the plaintiff demanded a writ of ne exeat regno, to prevent Lisle from leaving the country. In his decision Hardwicke used the words villein and slave interchangeably, accepting a continuity because ‘there are no laws that have destroyed servitude absolutely’.38 The seamlessness of this analogy clarified the jurisdictional relationship between England and its colonies because ‘all our colonies are subject to the laws of England, although as some purposes they have laws of their own’.39

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