2.3.2 The Slave Laws of the European Colonisers

With slavery clearly legal according to international law, we must now look at the slave laws of the European colonisers themselves. This is an important question for our next chapters.

For the sake of completeness, suffice it to say that for two countries, the question was relatively easily resolved. The domestic laws of the Iberian powers recognised slavery, and their laws were simply transplanted to their American colonies through the Roman law doctrine of accessio. This theory held that the owner of the principal thing also became the owner of the combined thing. In short, this meant that the Siete Partidas of Spain and the Ordenaçoes Filipinas of Portugal, the domestic laws governing slavery in Iberia, were also used to govern the status of their slaves in the colonies.²⁰⁹ Barring domestic metropolitan legislation on slavery, next to a lack of Roman tradition in English law, the English, French and Dutch colonisers had to revert to other means.

2.3.2.1 England: Colonial-Made Slave Laws Without Metropolitan Intervention

The first British colonies were those in the West Indies (Barbados and the Leeward Islands) and North America (Virginia, Maryland and Massachusetts). Through military conquest and the subsequent spread of early colonizers, England would eventually hold an array of territories up from Canada in the North down to the Latin American coast.²¹⁰ At first, the English experimented with the use of indentured servants in their colonies. Simply said, the servant’s passage to America was paid, in exchange for which he had to work a certain number of years on a colonist’s estates.

England’s colonial administration, as well as the relationship between English law and colonial law, was rather peculiar. The colonies were not in the hands of two great chartered companies, as was the case for the Dutch, and neither were they as centrally administered as France’s colonies. The administration of this colonial empire was instead much decentralised until the latter half of the eighteenth century.²¹⁴ The issues arising from the administration of the English colonies, and the applicable laws, has been called the question of the “Transatlantic Constitution” by some contemporary scholars.²¹⁵

The fundamental question was whether English law (statutory and common law) applied in the colonies. This issue was first elaborated on by Chief Justice Coke (1552–1634) in Calvin’s case. In this case, Coke made a distinction between several types of lands acquired by England. Under the decision, the American colonies were later categorised as “conquered infidel colonies”. It was held that such colonies were personal holdings of the king and were to be governed by the royal prerogative. The applicability of English statutory and common law thus depended on what each and every royal charter said exactly.²¹⁶ This was supplemented by Chief Justice Holt in the case of Blankard v. Galdy. The holding of the case noted that there was also another kind of colony, namely the “previously uninhabited colonies”, where English subjects carried their English law with them (and were thus not governed under the royal prerogative).²¹⁷ This distinction between conquered and previously uninhabited colonies was eventually adopted by the English Privy Council in the early 1720s.²¹⁸

In reality, the decentralised approach of the English meant, however, that most provincial governments of the colonies had much power and made their own legislation.²¹⁹ This was subject, however, to certain limitations.

In short, each colony thus had some private space to legislate, subject to the “repugnancy” limitation, and the applicability of English statutory and common law depended from colony to colony. This is highly relevant, because it means that the decisions of English common law courts on slavery could resonate through England’s Atlantic Empire.

Both kinds of colonies, conquered and previously uninhabited, were faced with the same issue: Parliament nor English common law said much, if anything, on colonial slavery. Parliament did acknowledge the Atlantic slave trade in some acts, but that was basically all there was.²²¹ Likewise, common law courts never meddled directly with colonial slavery, besides mentioning it as a local custom (“and that negroes, by the laws and statutes of Virginia, are saleable as chattels”).²²² Barring metropolitan intervention, the colonists had to erect a law of slavery by themselves. For this, they used a combination of bits of Roman slave law, English villeinage law, rules concerning chattel property and indentured servitude as sources of inspiration. In the beginning, these were mere customs, with the colonies drafting these existing practices into colonial statutes later on. Several colonies would then influence each other as various slave codes were being drawn up (the Barbados slave code of 1661 being a particularly influential example).²²³ The reason the colonists could erect these laws has to do with this so-called “Transatlantic Constitution”. Both conquered and previously uninhabited colonies had some sort of “private space” which allowed them to make these laws outside the existing English legal framework. By using their de facto authority (given they remained ultimately subject to the English king), the colonies created a regime of de jure slavery.²²⁴ Given the fact that there was no slave law in English domestic law, one might ask himself whether the “repugnancy” limitation was not problematic for colonial slave laws.

2.3.2.2 France: Metropolitan Intervention Through the Code Noir

France started its explorations in the Atlantic in the sixteenth century, but it was only at the time of Cardinal Richelieu (Louis XIII’s chief minister during the years 1624–1642) that the French developed a true appetite for colonial expansion.²²⁵ Compared to the other European powers, France quickly tried to impose royal control over its colonies. The power of the French crown was represented by three important institutions in the colonies. There was a gouverneur, who represented the king’s sovereign power and commanded the militias. Next to him, the intendant was responsible for finances, public works and the promotion of trade. Intendants mainly took instructions from the French Ministre de la Marine et des Colonies.²²⁶ Third, to represent the interests of the chief inhabitants of the islands, several conseils souverains were created, comparable in function to the various French Parlements.²²⁷ In 1674, the colonies were added to the royal domain of France.²²⁸

The French experiment with engagĂ©s (comparable to indentured servants) having failed completely, the turn towards black slave labour was quickly made. Through various compagnies with trade monopoly rights, most importantly the Compagnie de SĂ©nĂ©gal and the Compagnie de GuinĂ©e, the French also actively took part in the colonial slave trade.²²⁹ French ships, mainly leaving from the ports of Nantes, Bordeaux, La Rochelle and others, shipped approximately 1.35 million African slaves to the Americas, principally to the French Caribbean (St. Domingue, Martinique, Guadeloupe, Guyana and, until 1763, Grenada).²³⁰ It would take two attempts to eventually abolish French slavery. Slavery was abolished a first time on 4 February 1794 during the Revolutionary Era but reinstated by NapolĂ©on in 1802.

Substantively speaking, France had to develop its own slave law. There was no equivalent to Las Siete Partidas, and slavery had long since disappeared from most of France. The law governing the colonists was the Coutume de Paris, which did not have anything to say about slavery.²³² France thus acquired slaves before it had developed a slave law, and the first regulation on slaves was through local statutes.²³³

After the colonies were formally added to the royal domain in 1674, Jean-Baptiste Colbert took the initiative. He asked the top French officials in the Antilles to draw up a mĂ©moire which would summarize the “arrêts, et règlements qui ont Ă©tĂ© donnĂ© par les conseils souverains sur cette matière”, given that “il n’y a dans ce royaume aucune ordonnance ou coutume qui parle des esclaves”.²³⁴ The papers made by the colonial authorities eventually served as the baseline for the famous Edict of March 1685. It was the first piece of French metropolitan legislation on the status of slaves.²³⁵ It has to be borne in mind that this was hardly the only piece of royal legislation on the subject, and the term Code Noir was also used for the ensemble of royal legislation on colonial slavery, much more than just this one Edict of 1685. In the next century and a half, French slave laws would thus be further developed by a combination of (often attenuating) royal legislation and (often harsher) local regulations.²³⁶

2.3.2.3 The United Provinces: Reverting to Roman Law

The Dutch entered the Atlantic scene shortly after they renounced their allegiance to the King of Spain in 1581, after which the United Provinces were born. They got a toehold in the area after they captured part of Portuguese Brazil (notably Pernambuco) in 1630 and Spanish Curaçao in 1634.

The management of the Dutch colonial possessions was administered by two famous Dutch joint-stock companies, the East India Company (Vereenigde Oost-Indische Compagnie) in the East and the West India Company (Geoctroyeerde Westindische Compagnie) in the Atlantic. The governors appointed by the Dutch Republic were officers of these companies, and the Dutch state would only assert direct control over its colonies after the Batavian Revolution at the end of the eighteenth century.²³⁷ That is not to claim that these companies had a power base independent from the States General. Quite the contrary is true. The companies were intended to serve the commerce and diplomacy of the whole of the United Provinces. Furthermore, the Heeren governing the company were often civic patricians with close ties to government, with the greatest influence being exerted by the province of Holland (just as Holland was dominant in the Generality).²³⁸

The most important Dutch plantation colony was Suriname, conquered in 1667 from the English. This colony was governed from 1683 onwards by the Sociëteit van Suriname, a private company led by the city of Amsterdam, a powerful Dutch family (van Aerssen van Sommelsdijck) and the West India Company.

For our purposes, it is especially the West India Company which is interesting. It was chartered by the States General on 3 June 1621 and received a trading monopoly on the slave trade, which it would hold until the early 1730s, after which private companies could enter the trade as well.²³⁹ Overall, it is estimated that Dutch ships transported slightly more than half a million Africans to the New World. The slave trade would, under British pressure, be abolished by King Willem I in 1814, and slavery itself in 1863.²⁴⁰

Substantively speaking, the slave law that was employed by the West India Company in the Caribbean has long remained relatively unknown. Alan Watson tried to solve this conundrum, his academic expertise in the reception of Roman law proving of immense value. Watson held that initially, the West India Company had not been given the power to legislate in the Caribbean colonies. However, a placaet of 13 October 1629, Ordre van Regerienge in West-Indien, provided that in private law actions, personal or real, the law to be applied was the common law of the United Provinces or such as it should be approved by the Heeren XIX (the West India Company’s governing body).²⁴¹ This clearly referred to the Roman-Dutch law, the term given to the blended legal system of Roman law and Dutch customary law as it was applied in the United Provinces during the seventeenth and eighteenth centuries, but this did not solve the issue.²⁴² If there was a common denominator between the Dutch provinces with respect to slavery, it was their complete absence of slave laws. Watson believes that this conundrum was solved by a misuse or misunderstanding of Art. 61 of that same placaet, which stated that in other matters of contract of all kinds and trading, the common written laws (“de gemeene beschreven Rechten”) should be followed.²⁴³ These common written laws were a direct reference to Roman law. Although it might seem strange to consider this as the legal basis for allowing the ancient Roman laws of slavery to be used as the substantive slave laws of the Dutch colonies, Watson convincingly came to the conclusion that this is exactly what happened.²⁴⁴ There is additional, and more direct proof to confirm Watson’s idea. On 23th August 1636, the States General proclaimed an “instructie voor de Regeering in Brazil”, which was meant to set out guidelines for the West India Company’s administration of Dutch Brazil. Article 85 and 86 dealt with the issue of slaves. Article 86 explicitly mentioned that the slaves were to be governed by the “ghemeyne Rechten”, next to the statutes made by the Heeren XIX. This clearly goes further than the “re-interpreted” version of Article 61 of the 1629 placaet Watson points to.²⁴⁵ Dutch substantive slave law was thus Roman slave law but supplemented by other placaeten and local ordinances to align it with local conditions.²⁴⁶