'Twelve Judges in Scarlet' The Seventeenth-Century Contest over a Common Law of Slavery for England and its Empire

Abstract

Most scholars who have written about the law of slavery in England have focused on Somerset’s case of 1772, which had an intellectual impact not only in England itself but across the British Empire. While we recognize that Somerset represented some change in practice, historians have searched for consistency in earlier rulings, following a general tendency to see the Common Law as unchanging and the winning argument in the Somerset case itself. As a consequence, the current consensus is that the Common Law was somewhat confused, but that a kind of slavery was basically legal in England before 1772, and certainly in its empire, where English law on slavery did not reach. England was committed to a free society, but slavery was an anomaly that was tolerated because it was far away and across the ocean. Occasionally the historiography goes back as far as the seventeenth or even sixteenth century, to cite obscure cases, or even to the medieval period, when a kind of slavery was clearly legal. Seeing the slave law for the British empire from the perspective of the famous Somerset case of 1772 has obscured the vibrant debate within the English judicial system over the legality of slavery in England and its empire over more than a century. Not only was the Common Law on slavery changing profoundly during the seventeenth century; it was an instrument of policy. When Charles II failed to pass an imperial slave code via Parliament, he turned to the courts. His judges—really his in that they held their seats “during his pleasure”--presided over a series of rulings that made slavery legal in England itself --as well as its empire. These judges held that people could be property and that their status was hereditary, whether as chattels or villeins. These rulings brought the phalanx of English property law to bear upon slavery. Otherwise slavery law would followed feudal law, which had restrictions on ownership, master/servant law, which had a variety of protections for servants, or been nothing more than piracy, a situation enforced by the sword and brute force, but not law. These cases provided the structure of regulation of markets that made slavery--as it existed in eighteenth and nineteenth century America–possible.