3.2.3 Conclusion: The English Legal Order at the Dawn of Black Slavery: Freedom for Englishmen, or for Every Men?
The aforementioned cases have shown us that in the period 1500–1650, the English legal order came into contact with slavery only a very few times. The discussed cases are rather casuistic.
If one was expecting some clear pronouncements that slavery, as an institution, was deemed to be in conflict with the laws and customs of England, such statements are not found.How are we to evaluate the compatibility of slavery with English law at this time then? Let us first return to the statements of Smith and Harrison. Certainly, at the time of writing, their statements were slightly overblown and did not fully reflect the truth, as bondage still existed. With respect to Smith, several authors have written that his statement did not reflect social conditions fully accurately, and that his work was mainly written as a means to impress continental lawyers with the virtues of the English institutions.70 Likewise, Harrison’s statement seems to be too far reaching as well, although one author dares to hint that Harrison’s statement on slavery might be an allusion to Cartwright’s case.71 Given the fact that Cartwright does not seem to have been widely known at the time, if indeed it really took place to begin with, this seems doubtful to me. In that respect, the suggestion given that the Oxford-educated Harrison might have been inspired by foreign literature he read (maybe even Jean Bodin’s work) in order to proclaim the English freedom principle, looks rather more credible.72
With the benefit of hindsight, it could be said that Smith and Harrison had time on their side. The English common law only formally acknowledged one sort of unfreedom, villeinage, and this institution, whilst legally never abrogated, was practically dead for all purposes after the Elizabethan era. Likewise, the Vagrancy Act 1547 clearly showed that slavery was not seen as an acceptable punishment for Englishmen. This means that by the middle of the seventeenth century, it seems clear that it would be difficult to “insert” slavery in English law as a punishment for Englishmen. What remains unclear, given Cartwright’s tendentious credibility and obscure meaning, is whether English law would tolerate slavery to subsist when that status had originated in the domestic laws of another country, which is a conflicts of law question. To answer this question, we must look at the reaction of the English courts when they came into contact with the issue of black slavery.