13th August 2021
This blog recently looked at the end of the Atlantic slave trade, with the last (known) surviving transatlantic slaves and what their lives told us about law.
The last (known) victim died as recently as 1940, that is within the lifetime of four sitting United States senators.
This blog now moves to the beginnings of how English law dealt with slavey, with the Butts v Penny case of 1677.
(This is the first of an intended series of posts, dealing with cases on slavery and the slave trade.)
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Before we look at the case, there are three points of context.
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First, and by way of background: there was (supposedly) by the 1600s no (formal) slavery in England.
There had been been something known as ‘villeinage’ – where villeins, like human garden gnomes, were in effect held to be property fixed to the land.
Villeins however had (limited) legal protections, and could not be bought and sold like mere chattels.
By the 1600s, however, villeinage had in substance ended.
But it was the nearest English law had, at that point, to the notion of slavery.
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Second: by the 1670s English merchants had been happily and deeply involved in the slave trade for over a hundred years.
The slave trader John Hawkins was trading in slaves as early as the 1560s.
So impressed were those at the time with this trade in slaves that when Hawkins was granted a coat of arms, on its crest there was ‘a demi Moor in his proper colour, bound and captive’.
The role of English merchants in the trade in slaves was thereby not something that those at the time were somehow ashamed of – it was something openly celebrated.
At the time, a coat of arms was among the most public statement about a thing a person could make.
‘a demi Moor in his proper colour, bound and captive’
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Third: by the 1670s the trade in slaves even had the official recognition of the English state.
As early as 1618, James I had supported the establishment of a ‘Company of Royal Adventurers Trading into Africa’ and in 1663 a royal charter was granted to the Royal African Company.
So although the English courts had not yet grappled with the slave trade in its case law, and although it was a concept not (directly) known in English law, slavery and the slave trade was certainly something that was legally recognised and sanctioned.
For a court in 1677 to decide that there could not be a trade in slaves would go against both over a hundred years of actual mercantile practice and over fifty years of official support.
The odd thing, perhaps, was that it took so long for a dispute to reach the English courts to be reported.
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For completeness, mention should now be made of a 1569 case: Cartwright.
This is the case where (supposedly) it was held that ‘England was too pure an air for a slave to breathe in’.
The problem is that this celebrated – and later much-quoted – case was that it was not reported (that is, recorded) at the time, and we only know about if from later mentions in the 1700s.
Like a lost Shakespeare poem that we know about only from quotation, we do not have the original.
And it not being reported at the time, it had no contemporary impact or wider significance – if a judge said those rousing words at all.
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So we come to the 1677 case of Butts v Penny.
Here we have two law reports.
The first is from a collection of cases reported by the judge Sir Creswell Levinz.
Unfortunately, the Dictionary of National Biography tells us, that is ‘some division of opinion among English judges as to Levinz’s merits as a reporter’.
His report is here – and it is one brief report among many others he reported:
The other report is not from a judge nor even from a practising lawyer, but from an endearingly obsessive non-practising barrister called Joseph Keble, who just turned up to court every day to report cases that ended up filling twenty volumes.
His report differs from that of Levinz – and is even shorter:
Again, for Keble this was just one report among many, many others.
Neither Levinz nor Keble emphasise their reports of this case, and if you scroll (or leaf) through their reports, the report is just reported like any other.
The fact that the case was about slaves did not strike either reporter as being especially noteworthy, and presumably it did not strike their contemporaries as being that noteworthy either.
The reports are not consistent – for example, one says 100 slaves and one says 10 (and a half?).
As Levinz may have been a/the judge in the case, and is anyway the more senior lawyer of the two, his report would normally be preferred – regardless of his mixed reputation.
What does this case tell us?
First: Butts (the plaintiff) had bought slaves, and that Penny (the defendant) had taken them.
Second: Butts was suing Penny on the basis of ‘trover‘ – which means that Butts was not demanding the physical return of the slaves but was suing for their cash equivalent.
This was thereby a commercial case – and trover cases were a commonplace of the time – but unlike most commercial cases (then as now) this had not settled and so had to be determined by a court.
Third: the value or other importance of the case was such that Penny instructed a lawyer, Thompson, to put the defence – on the law, rather than on the facts.
Fourth: the lawyer Thompson put the defence that there could not be property in people – Keble says the lawyer compared the situation with the then extinguished state of villeinage.
Had the court sided with Thompson’s submission on this then perhaps the history of the law of slavery would have taken a different direction.
But after a century of English slave trading and given the royal sanction for the slave trade, it would have been a robust court that would have made such a decision.
Fifth: the court deferred to mercantile practice – the custom of merchants.
In essence: because as a commercial fact slaves were bought and sold, then the court must accept that slaves could be bought and sold.
Slaves had fewer protections than villeins – indeed no legal protections at all.
Slaves – human beings – were ‘merchandise’.
And as merchandise, they could thereby be the subject of an action for trover.
Like any other property.
And sixth: the court made reference to the slaves being ‘infidels’ as if that somehow reinforced the decision made.
And so the plaintiff won.
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The striking thing about this case is, well, just how un-striking it was at the time.
A commercial case among hundreds of others, with the briefest (and inconsistent) law reports.
The court just nodded along with the custom of merchants.
And that was that.
No outcry, no obvious public attention.
The same matter-of-fact, bureaucratic mentality that was to be a feature of how the English courts generally dealt with the issue of slavery for the next hundred or so years.
The court did not even seem to regard itself as making new law or establishing any precedent – it was instead just applying existing commercial law to yet another form of property.
As if it was completely normal.
One can presume that before 1677, similar cases would have settled on the assumption that slaves were ‘of course’ merchandise and so could be subject to an action in trover.
Only this otherwise unknown Mr Penny went to the length of litigating the case to court, employing the lawyer Thompson to raise a legal (rather than evidential) defence, and then Mr Penny lost.
Butts v Penny is an unexceptional exceptional case.
Exceptional to us, as we see human beings casually reduced to ‘merchandise’.
Unexceptional to those at the time, other than Mr Penny getting his lawyer to make a spirited but futile defence.
And this was the first mark on the legal record of how English courts would practically deal with the slave trade.
As Hannah Arendt said in a different context, this is how banal an evil can be.
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Good post. Really enjoying your trawl through the history of how English courts and English law dealt with slavery. Keep it up!
Cases like this invite speculation about what things we currently regard as commonplace which a hundred years hence might be thought of as incomprehensible barbarities.
Imprisonment other than for the protection of others, would be my guess.
How about:
– Killing animals just to eat them.
– Tolerating poverty in a rich country.
– Accepting global poverty, for example by cutting an aid budget.
– Not allocating vaccines according to need during a global pandemic.
But you are absolutely right to put the question. In my view, rather than toppling statues of Colston &c, and more even than using them to highlight the slave trade, we should emphasise the normality of Colston and use the changing view of his conduct to put to ourselves the question that you ask: what do we do today quite normally that a future generation will think barbaric? Stimulating that question would be the real challenge to artists and civic leaders
Yes Mr Romberg
Had a very good discussion about this with some much younger friends recently. I think the outcome of the discussion (or what I thought was the outcome) is that our ideas of what is right and what is wrong develops over time. According to Wikipedia (so it must be true) Edward Colston moved into slave trading in 1680, having already been a successful merchant in sherry, wine and silk. Again courtesy of wikipedia have now read about the Barbados Slave Code of 1661 and Louis XIV’s Code Noir of 1687, both of which appear to have been about regulating and “normalising” the slave trade. So in he was a man of his time. What he was remembered for was his philanthropy, but of course it is right to recognise the barbaric way that he made his fortune alongside the philanthropy. Fortunately a few people recognised from the beginning the slave trade for the evil that we now recognise it to have been, and continues to be, so the long process of ending slavery began.
As to the parallel and necessary question of what will be viewed with horror in a hundred year’s time in what we are currently doing I should guess the factory farming of animals, which is a disgusting stain on our civilisation. Our thoughtlessness and greed in how we treat the natural world. And that we contined to tolerate war.
That’s easy – our treatment of migrants. It’s a deep-seated bigotry which is obviously harmful to everyone. From the Windrush scandal where even those fully entitled to remain were deported to the treatment of migrants crossing the Channel.
From a purely selfish point of view we should be welcoming people who have grown up, so sparing us the cost of raising them, and we should recognise out great fortune at attracting people who are willing and able to go through great adversity to get here.
From a purely altruistic point of view, we should be welcoming people who feel the need to come here through such adversity that it proves they have good reason to do so – whether that is a reason such as persecution elsewhere to merely fear of being poor elsewhere, which is somehow considered less worthy.
I completely agree and I would welcome anyone who comes here for a better life whatever that person’s circumstances. I can see that we need to manage the intake of human beings better but that is no reason not to welcome them in the first place. I live where Channel migrants are landing and am heartened by the decent response of the RNLI, coastguards and police though thoroughly dejected by the disgusting comments of some – many? – who live round here and by the fact that vigilantes are now turning up with aggressive dogs to meet fellow human beings on the beaches.
In defence of these judges I would add that these slaves were not physically in England, and the relationship between the law of England and things that happened in England’s dominions overseas was always (in my impression) a bit murky.
So (generously) this case could be framed as one where the court is being asked to give legal effects in England to a state of affairs that is undoubtedly legal in the place where it is happening, but may not be in England. Like litigating in England to recover payment for prostitution services rendered in the Netherlands or Las Vegas.
Now obviously the morally preferable outcome would have been to say that no claim in trover lie because the law in England will not provide assistance to the institution of slavery anywhere in the world. That’s clearly what a court today would say. But at least these judges did not say that slavery was legal in England, because that’s not the question they were asked.
It is unfortunate we don’t know more of the facts – did Butts sell the slaves to Penny, but Penny refused to pay? Perhaps Penny was Butts’ agent, employed to sell the slaves, but refused to pass over the proceeds? I suspect this was considered a normal commercial matter: as you say, slaves had been bought and sold by English merchants for several decades “tanquam bona” (like goods or chattels). But, speculating wildly, perhaps Penny tried to wriggle out of his commercial deal with a clever legal argument: that in law there were no “goods” with any value, so nothing was due.
The reference to infidels comes I think from the understanding that a Christian may not enslave another Christian, and so the slaves would be “infranchised” by converting (perhaps this comes from canon law: I believe there are parallel concepts in Islamic law, that a slave would be manumitted after conversion). Indeed, as I understand it, under Byzantine law, a slave would be emancipated by being baptised as a Christian. This point is negatived in the Yorke-Talbot opinion, along with the “air to pure” point.
So this is the judge-made English common law of which we are justifiably so proud – so flexible, nay, so nimble! Such a common-sense guarantor of personal freedom! How you teach us non-lawyers!
(And no, I don’t mean to denigrate the common law tout court. And considering how deeply immersed in this wretched trade were the merchants of Portugal, Spain, France and the Netherlands, it’s clear that continental legal systems facilitated slavery too. But a little less English-British exceptionalist bombast from our ruling party and its media shills might nevertheless be in order).
a hypothetical
Imagine if you will , Ms Patel’s “chaingang” policy for minor criminals (yes i know there are no actual chains) being found being hired by third parties such as a commercial enterprise to perform what would normally be low paid menial labour
and the response by HMG being to change the law to allow this , presuming that it already doesn’t exist
could an old decision like this be used to help her and her team enforce that change
I suppose the next question after that is who would enforce that if a form of slavery like that returned ? the police is that in their remit?
Most interesting. I was taken by the background to villeinage which led me to the thought – exactly how do you run a country once you have overun it. Feudalism and villeinage look practical solutions. And there is the law, doing what the king/clergy/warlords want.
Even in my own career the concern of officials was ‘for an orderly market’. That is what the rules and regs are supposed to do, fairness is a bonus. As a sidelight I found judges were paid about £1000/y in 1646 which amounts to about £220,000 today. Plus ca change.
Of intriguing interest to me is the possible legitimising influence upon the sale of human beings arising out of the leadership of the Royal African Company by James Stuart, Duke of York, (who became King James II) – who was Governor of the Company from its inception 1660 until the Glorious Revolution in 1688, and was its largest shareholder. This, of course, is the very period in which the case that you write about was decided. It is reasonable to ask whether one of the King’s Justices could have the presence of mind or strength of character to risk forgoing the judicial salary of (at today’s rates) £200000 per annum to challenge the legitimacy of a money-making venture that appears to have been the Johnsonian chumocractic bubble of its time. Wiki records that the Royal Africa Company fell into insolvency in 1708 and that John Locke (the father of modern liberal philosophical ideas) was a significant investor in the
Royal Africa Company -https://www.npg.org.uk/learning/digital/history/abolition-of-slavery/john-locke – to the extent of £600 (worth £400000 today).
Interesting blog thanks. A topic that has interested me for some time is how the supposedly Christian northern European nations in which slavery was essentially non-existent built vast overseas empires on the back of slavery.
In his thought provoking book ‘Inventing the Individual: The Origins of Western Liberalism’, Larry Siedentop argues that it was in the 12th and 13th centuries in Europe that the idea of the individual as the basic unit of society arose and that was radically different when compared to the Greek and Roman world where the family, not the individual, was the fundamental unit of society, with the paterfamilias as the authoritative head of a hierarchical household with absolute power over his subordinates, which included children, women, and slaves.
The Greco-Roman world was hierarchical with citizens at the top then resident aliens, and lastly slaves at the bottom. For ancient philosophers, the cosmos, too, was structured hierarchically; inequality was not a sociocultural phenomenon, but a natural consequence of the hierarchical, rational order of the universe
However as Siedentop details, in mediaeval Europe which law was essentially developed by the church there was a tension between the Augustinian and Aristotelian viewpoints with the latter being an attempt integrate ancient Greek rationalism into Christian philosophy and the Augustinian concern that to do so would resurrect the hierarchical framework of inequality that characterised Greek and Roman civilisation.
In this I think he is absolutely correct and certainly the progress of the development of the freedoms we enjoy in the liberal-democratic west took centuries to develop since it was and always will be a hard battle against those who would benefit from a society where ‘natural inequality’ is accepted.
There is a quite decent review of slavery in Europe by Peter A.J. van den Berg from Groningen University looking mainly at slavery in the Netherlands and in the Dutch colonies but he does touch on British law which became involved when Britain took over Dutch colonies in which slavery was practised.
Its entitled;
Slaves: persons or property?
The Roman law on slavery and its reception in Western Europe and its overseas territories
Published in;
OSAKA UNIVERSITY LAW REVIEW No. 63 (February 2016) 171-188
I recently read in a book written by a Somerset local historian that rebels were given a choice of punishment between hanging-drawing-quartering and plantation slave. By royalist judges, of course. It made me wonder how common a punishment this was after colonisation and before Africans were identified as a richer resource.