Before Somerset: Debating Slavery and Absolutism in England and its Early Empire

Abstract

Seeing everything from the perspective of Somerset (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. This controversy over slavery in the Common Law was intimately connected to the broader arguments over the divine right of Kings. The Glorious Revolution, which dethroned a King who believed in his own divine right to rule and who overturned Parliamentary laws–also overturned the rulings that James II and his brother Charles II had laboriously overseen. These rulings had made slavery legal in England itself (as well as its empire) by holding 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 would have allowed either a limited feudal ownership, 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. While by the early nineteenth century the institution of chattel slavery had largely lost sight of its ideological connection to absolutism, that is where it was born in the seventeenth century.

Keywords: slavery, capitalism. common law, torts, colonies, United States, Britain, property, trover, detinue, labor law, chattel, absolutism, feudalism, sword, parliament, rulings, hereditary status

JEL Classification: J00, J24, J41, J47, G00, G14, K00, K11, K13