3.2.2 Slavery and the English Legal Order in the Sixteenth Century: Vagrants, Cartwright and the Tudor Galleys
3.2.2.1 The Promulgation and Failure of the Vagrancy Act 1547
With slavery virtually gone at the end of the sixteenth century, the old divide between free and unfree seemed to be of no more relevance in England.
But the fact that legal unfreedom disappeared did not mean that English labour immediately became “free”. On the contrary, the statutes and common law of apprenticeship and servants could often be very harsh, though unfreedom of labour was strictly divided from unfree status.30 English law would have its first clash with slavery when it tried to prescribe slavery as a form of punishment for those individuals without any master or labour: the vagrant.Poverty is a problem of all times, and “vagrant” or “vagabond” were the terms which were usually reserved for wandering beggars without a job. In principle, these persons were capable of working, which is how they were usually distinguished from “impotent beggars”. During the Tudor Era, the number of these vagrants increased. Mainly, this is due to the continued warfare in this period. The Wars of the Roses and the expansionary efforts of Henry VIII left in their trail a great number of persons bereft of a place on the labour market when the war was over.31 At the same time, the Dissolution of the Monasteries by Henry VIII in the late 1530s also meant that poor relief increasingly became subject to regulation by the state.32It was the underlying fear of insurrection by men with experience in battle which explains the Tudor legislation to try and deal with the issue of vagrancy, and which would eventually result in the Elizabethan Poor Law of 1601.33 This fear is especially visible in the Vagrancy Act of 1547, which was passed when the Earl of Hertford (Edward Seymour, Protector Somerset) took the regency during the minority of Edward VI (1537–1553).34 What made the Act so strange? It tried to introduce slavery as a punishment for vagrants.
The 1547 Act repealed all previous statutory law on the subject, and defined a vagrant as every man or woman who was not lame, impotent, aged or too ill to work and who wandered around the country and did not seek work or left it when it was offered to him.35 A master or any other person willing to offer him work, called a “presenter”, could bring the vagrant to two justices of the peace.36 They would enquire into the case, and if they found him to be a vagrant, would brand him with a hot iron and “adjudge the said persone living so idelye to such presento’ to be his slave” for a period of two years. What is more, the slave could be beaten, chained, leased, sold or bequeathed.37 If the slave tried to flee and got caught, the runaway could again be brought before the same justices of the peace, who would now condemn him to lifelong slavery. The stubborn slave who tried to escape a second time would be seen as a felon and could be adjudged as such.38 If no-one was interested in enlisting the services of the vagrant, the justices of the peace could act ex officio, apprehend the vagrant and send him to the parish where he was born. There, he would be kept as a slave to do public works.39 Finally, other important provisions dealt with the children of the vagrants (who could be made apprentices or servants until they reached a certain age),40 impotent beggars41 and the proclamation and continuance of the act.42
Two questions are interesting for our purposes. Where did slavery as a punishment, seemingly ex nihilo, come from, and what can the application of the act teach us about slavery and the English legal order?
For the former question, lacking any parliamentary amendments to the act, we have to suffice with the views of the one Tudor historian who has looked at the act’s history. According to C.S.L. Davies, a combination of the fear of vagrants, the Christian attitude of encouraging the unwilling to work, and precedents of harsh vagrancy laws provided the foundation for the act.
This was supplemented with the fact that the law was probably drafted by a small group of humanists and civil lawyers, that had much influence in government at the time, and that could find inspiration for this act in a similar provision of the Corpis Iuris Civilis.43The act itself was already repealed in 1549 in favour of a new one, which reinstated the previous vagrancy act from the time of Henry VIII. Remarkably, the preambles of this law explicitly state the reason for the repeal of the previous law, claiming that the 1547 act “hath not byn putt in dewe execution, and ptelye also by reason of the multitude of the same, (thextremitie of some wherof have byn occation that they have not ben putt in ure;)”.44 That the act was indeed not well enforced, is something for which ample evidence exists.45 But more importantly, these preambles seem to confirm to us that slavery was seen as an unacceptable institution, even for those at the lowest level of English society.
3.2.2.2 A Russian Slave in England: Cartwright’s Case
The second time the English legal order came into contact with slavery before the Atlantic slave trade is even more obscure. The case has only been reported by John Rushwordt (ca. 1612–1690), who compiled a series of papers which covered the period between 1618 and 1640, just before the outbreak of the English Civil War between the Royalists and Parliamentarians.
In his work, we find a reference to a case that took place in the Court of Star Chamber. John Lilburne (1614–1657), an important Leveller46 during the civil war era, was examined upon interrogation concerning his unlawful printing, publishing and dispersing of books, which were considered to be libellous by the infamous Court of Star Chamber.47 Lilburne, well known by contemporaries for his stubbornness, refused to appear at first. When eventually taken before the Court, he likewise refused to take an oath. After having sent Lilburne to the infamous London Fleet prison, the Court of Star Chamber tried again three days later.
But Lilburne remained adamant. After some additional attempts, the Court took this as contempt of court and ordered Lilburne to be whipped through the streets of London from Fleet Prison to the pillory.48The whipping −500 blows with a corded-whip with a knotted end in this case, to be exact- is what interests us. Rushworth allowed himself to digress from literally recalling the Court’s proceedings and discussed the punishment. Whipping, according to him, was painful and shameful, flagellation for slaves. Moreover, “in the Eleventh of Elizabeth [1569], one Cartwright brought a slave from Russia, and would scourge him, for which he was questioned; and it was resolved, That England was too pure an Air for Slaves to breath in”.49 Whereas the Vagrancy Act 1547 can be seen as a rejection of domestic slavery, this would seem to be, at first sight, a rejection by the English legal order (although which court purportedly made this judgment is unclear) of allowing slavery, imported from elsewhere, to subsist in England. The court disallowed slavery, even though the slave came from a country where that status was recognised by domestic law, as slavery was only abolished in Russia in 1723. Regrettably, things are not that easy.
First, the contentious credibility of the case can be criticised. The case cannot be found in any law report. The only time it seems to be referred to in legal proceedings before Somerset v. Stewart is in a House of Commons report which was made during the process of impeaching the judges of the Star Chamber right before the final abolishment of that court. One can doubt whether, in such a case, the attribution has any meaning.50
The problem of the credibility of the case also plagued an eighteenth century audience. In Somerset’s case, Serjeant Davy, one of Somerset’s lawyers, referred to the case before Chief Justice Mansfield; however, when Mansfield asked “Is there any traces there existed such a Case as that of the Russian slave”? Davy could only refer to what he had found in Rushwordt.51
But even if we are to take the view that the case did take place, it can still be explained in a variety of ways.
When John Lilburne’s counsel mentioned the case before the House of Commons, they used it to assert that it was the whipping itself which had exceeded the lawful bounds, which they saw as the holding of the case. This would mean that the reference to slavery should be seen as obiter dictum.52 When it was later referred to in Somerset’s case, there were different views on the ratio decidendi of the case as well: Somerset’s council evidently believed that the ratio decidenci was that slaves became free by their arrival in England, referring to the fact that any other reading of the case did not make sense, as scourging a villein was allowed by English law.53 Stewart’s council took another approach, with one lawyer disregarding the case, but co-counsel Dunning taking the more cunning position. He held that the case only posited that English law would not accept the Russian form of slavery when it was “exported” to England.54However, it cannot be denied that the case could plausibly be constructed to say something about slavery. In fact, it was very recently found that one of John Lilburne’s lawyers, John Cook (the first Sollicitor General of the English Commonwealth, who was later executed for his role in the trial of King Charles I) did just that.55 In one of his books (the 1646 The Vindication of the Professors and Profession of the Law), he cited Cartwright to the effect that a Russian slave on English soil “was instantly a Free-man, coming upon English ground, and breathing our pure ayre”.56 Whilst one cannot discount the possibility that Cook made up this case as a justification for his defence of Lilburne, and whilst Cook’s reference seems to have been forgotten when black slaves entered English soil, follow up research might still show that others saw Cartwright as confirmation of the freedom principle in England during the second half of the seventeenth century. Until such proof appears, one has to be sceptical of both the veracity of its case, and more fundamentally the question as to whether the legal community knew about the case.
3.2.2.3 The English Navy: Penal Slavery and Impressment?
For the sake of completeness, one needs to note galley slavery and impressment, neither of which seem to posit a clash between the English legal order and slavery.
Although galleys, ships propelled by rowing, were mainly used in the Mediterranean, both Henry VIII and Elizabeth I had a few galleys at their disposal: some captured from the French and some domestically produced.57 In the Mediterranean, these ships would often be manned with forced labour, consisting of convicted criminals (forçats) and captured Muslim slaves. Several authors have tracked references in administrative documents purporting to show that the English were also willing to man their ships with convicts, sometimes explicitly referring to slavery.58
Two reasons make it hard to see this as a clash between the English domestic order and slavery. Firstly, although the English government might have been willing to send convicts to the galleys, the evidence for them ever having done so is very flimsy, if not non-existent.59The very few times the galleys were used, they were typically filled with free labour. Second, it is very difficult to resolve whether this can be truly seen as slavery, if we refer to the previously mentioned characteristics of slavery. As Hargrave also mentioned in his argument in Somerset v. Stewart, this kind of slavery was usually not domestic, the convicts being sent away to serve on ships all over the British realm. It usually did not make the posterity of the offender slaves either.60
The same argument holds true for impressment. This was an English naval practice that was especially popular in the British Long Eighteenth Century (1688–1815). It was a practice whereby press gangs consisting of navy officers, sailors and sometimes local ruffians used violence on free English subjects to supply the British navy with adequate manpower, forcing these people to serve on their ships.61 In popular thinking, impressment was often associated with slavery,62 and a notable anti-slavery thinker such as Granville Sharp also staunchly opposed impressment.63
However, legally, this was not slavery. First, the technique of impressment itself was legal according to English courts (the most famous case being Rex v. Tubbs in 1776 under Lord Mansfield). Impressment was seen as “grounded in immemorial usage”, and the technique took precedence over respect of private rights in case of matters of national security.64 Second, despite the popular association, impressment was different from slavery. Actual slaves on British ships were clearly a different category from the impressed sailors, as the latter went free at the ends of wars and received wages for their labour (including other material benefits).65 In fact, black slaves were sometimes not disinclined to be impressed themselves as it could offer a path to later freedom.66
3.2.2.4 English Writers: Not Much to Find
If we hope to find conclusive proof of a freedom principle in the works of the English jurists and lawyers up to 1650, we are to be disappointed as well.
The works of the great legal systemisers of seventeenth century English law, Edward Coke (1552–1634) and Matthew Hale (1609–1676) are a good place to try and find such a tradition. In the first book of his Institutes of the Lawes of England (also called Coke Upon Litteton), we find elaborate discussions on English villeinage, but nothing related to slaves coming to England.67 In Matthew Hale’s A History and Analysis of the Common Law of England, which was only published in 1713, we find even less. Hale simply referred to Littleton’s work when mentioning villeinage, and held that it was of little practical use to devote more attention to villeinage for a person of his time.68 Scarcely could it be claimed that England’s ius gentium writer Richard Zouche had more to say on slavery, as his discussion was limited to a treatment of the legality of slavery according to the ius gentium. Apparently, even the lectures in the Inns of Court never discussed slavery, either in relation to the colonies or its status in England.69
For the period before 1650 then, excepting Cook’s 1646 book, I have not found English jurists claiming that slaves became free upon touching the soil of England.