Footnotes

Patterson (1982), p. 13.

Brion Davis (2006), p.

Hargrave (1772), 13–16.

Decaux (2009), pp. 35–80; Allain (2012), pp. 57–104. On international law and the abolition of slavery and the slave trade, also see Erpelding (2017).

Slavery, Servitude, Forced Labour and Similar Institutions and Practices Convention of 1926, League of Nations Treaty Series, vol. 60, p. 253; entered into force on 9 March 1927.

Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery of 1956 (the Supplementary Convention), United Nations Treaty Series, vol. 226, p. 3; entered into force on 30 April 1957.

Brownlie (1998), p. 515. For the prohibition of slavery as a norm of the ius cogens, also see Barcelona Traction, Light and Power Company Ltd (Belgium v. Spain), Judgment, I.C.J. Reports 1970, para. 34.

Given that the definition mentions both �?status’ and �?condition’, the former is meant to apply to de jure cases of slavery, which does not formally exist anymore in any domestic legal system around the world. The word condition, on the other hand, is used to address cases of de facto slavery.

On the travaux préparatoires of the Slavery Convention 1926 and the Supplementary Convention 1956, see Allain (2008).

Some examples of this approach are to be found in: Allain (2012); Lassen (1988).

United Nations Economic and Social Council, Slavery, the slave trade and other forms of servitude: report of the secretary-general, E/2357.

The Bellagio-Harvard guidelines are a set of principles that were established by a group of scholars from various backgrounds working in the field of slavery, so as to come to an internally consistent interpretation of the legal definition of slavery (the principles can be found in Allain (2012), pp. 371–379).

Office of the United Nations High Commissioner for Human Rights, Abolishing Slavery and its Contemporary Forms, HR/PUB/02/4 (New York and Geneva: United Nations, 2002), p. 17.

Although this might seem like an illogical approach, it has to be borne in mind that the Supplementary Convention 1956 tried to enlarge the scope of the 1926 Convention. In particular, a definition of serfdom was added so as to bring the Latin American institution of peonage, a somehow similar institution to medieval serfdom, within the scope of the two slavery conventions.

Aristotle’s ideas were particularly important when it came to attempts to legitimise the enslavement by the Spaniards of the Indians in their new world colonies.

An account of this evolution can be found in Schlaifer (1960), pp. 93–104.

Neff (2014), pp. 42–44.

Finley estimated that there were about 60.000 slaves in Ancient Athens at the end of the fifth century BC. Finley (1980), pp. 79–80.

Four theories of slavery (natural law, slavery by convention and two other, less developed theories) are discussed by Schlaifer (1960), pp. 112–118.

Allain (2012), p. 13.

For a concise overview of Plato’s view on slavery, see the conclusion in Morrow (1939), pp. 120–133.

Laws 966. The state of mind of a slave is fleetingly brought forward in the dialogue between the Athenian Stranger and the Cretan lawgiver Clinias, when discussing the mental capacities that the wardens of the law ought to possess. I have used the 1984 translation of Plato’s Laws by Robert Gregg Bury, Plato (1984). For Plato’s Republic, I have made use of the 2013 translation by Chris Emlyn-Jones and William Preddy, Plato (2013). When referring to works by Plato and Aristotle, I will use the Stephanus numbers for the former and the Bekker numbers for the latter.

Plato (2013), 469.

Aristotle’s theory of natural slavery is widely discussed in literature. See i.a. Brunt (1997); Roberts (2009); Garnsey (1996).

1253b, 1–10. I have made use of the 1932 translation of The Politics by Harris Rackham, Aristotle (1932).

Ibid., 1253b, 15–23. Davis notes that whilst we do not know who Aristotle’s opponents were, we know of scattered fragments from the works of Cynics and early Stoics that doubted the natural justness of slavery. Brion Davis (1966), pp. 72–78.

Aristotle (1932), 1254a 14–20, 1254b 20–24.

Roberts (2009), p. 45.

Aristotle (1932), 3–22. The problem with this statement is that Aristotle never discussed what virtue actually was.

Aristotle (1932), 1255a 24–40, 1255b 1–4.

Finley (1980), p. 80. One should bear in mind that the Italian Roman heartland is not representative for slavery throughout the Empire. Although it existed everywhere, nowhere were slaves as abundant as within the Italian part of the Empire, see Thompson (1960).

On the decline of slavery, and the rise of the colonate, in Roman history, see Finley (1980), pp. 123–149.

This hybrid status of the slave is discussed in full in William Warwick Buckland’s exhaustive work on Roman slave law, where six chapters discuss the laws of the slave as a human being (as opposed to two chapters on the slave as a thing). Buckland (2010), pp.

Watson (1989), p. 33.

Justinian (1985), Digest 50.2.9. Late Imperial law also allowed the sale of young children into slavery in some circumstances. See Cairns (2001), pp. 197–202. On enslavement in Roman law more generally, a brief summary can be found in Watson (1987), pp. 7–22.

Watson (1987), pp. 7–22.

Ibid., pp. 7–22. Finally, reference is sometimes made to persons called “addictus” or “nexus” in sources. These terms were used for persons who had incurred debts and were assigned to their creditors. However, the sources are consistent in that these persons are seen as personally free. See Testart (2002).

Buckland (2010), p. 36.

Dig 1.6.1. I have made use of the 1985 translation of the Digest by Mommsen, Krueger and Watson.

A full survey on the history of the colonate can be found in Mirkovic (1997).

Codex Justinianus, XI 48.21.

Neff (2014), pp. 44–49.

Justinian (1985), Digest 1.1.3., 1.1.4.

Justinian (1985), Digest 1.5.3., 1.5.4.

Watson (1987), p.

Kelly (1992), pp. 88–89.

Maxwell (1975), p. 28. One might be surprised to learn that the common Catholic teaching on slavery only clearly prohibited all kinds of slavery after the Second Vatican Council in 1965.

Kelly (1992), pp. 104–105, 146–148, 191–193.

Maxwell (1975), pp. 27–30.

Ibid., p. 30.

Kelly (1992), p. 103.

Book XIX, XV. I have made use of the 1960 translation of Augustine’s City of God by William C. Greene, Saint Augustine (1960).

Carlyle and Carlyle (1915), pp. 118–119. The six volume work of the Carlyles still contains the most elaborate treatment of the legal justification of slavery in the Middle Ages, and the thinking of individual jurists. Much of this work has been summarised in Kelly (1992), pp. 104–105, 146–148, 191–193.

Neff calls the first category “dualists”, and the second category “substitutionists”. Neff (2014), pp. 63–67.

Carlyle and Carlyle (1915), pp. 111–124. I do need to clarify that before the twelfth century and Gratian’s Decretum, it is difficult to speak of an independent science of canon law, as the separation between theology and law had not really happened before then. Wieacker (1995), pp. 48–51.

For primary references, see Carlyle and Carlyle (1909), pp. 34–40. On the notion of continuity between the ancient tradition and the revival of Roman law, Wieacker (1995), pp. 25–27.

For a succinct summary of Eike von Repgow’s views on slavery and serfdom (the two sometimes difficult to distinguish, see Zeuske (2018).

Van Caenegem (2011), pp. 11–15. The three of them were influenced by their personal knowledge on the “learned laws” as well.

Carlyle and Carlyle (1916), pp. 87–91. The Carlyles do sometimes make the mistake of equating slavery with serfdom.

Neff (2014), pp. 61–63.

Ibid., p. 66.

Carlyle and Carlyle (1928), p. 21.

The referred to passages are I, Q. 96, Art.4; II-II, Q. 57, Art. 3; I-II, Q. 94, Art.5. I have made use of the 1947 translation of the Summa Theologica by the Fathers of the English Dominican Province, Aquinas (1947).

Kelly (1992), pp. 148–149.

Carlyle and Carlyle (1928), pp. 23–24.

Dig. 1.5.4.

Neff (2014), pp. 67–72.

For a short summary on the content of these five principles, see Neff (2005), pp. 49–54.

Placentinus believed that a war prisoner who freed himself or was captured by enemies of his captors did not become a captive again, but could enjoy the rights of postliminium. This was a doctrine of Roman law that held that a prisoner of war who returned to Roman territory, could be restored to his old legal position, see Buckland (2010), pp. 304–311. For Accursius, wars between Italian city-states were the exception to enslavement, as he held that this conflicts lacked publica licentia, meaning that the parties who tried to capture persons from their opponents could not be seen as enemies, but rather as bandits, see Russell (1975), pp. 51–53.

Huguccio believed that the Saracens could do so when fighting a just war, but added that he doubted whether Saracens could ever fight a truly just war against Christians. Russell (1975), pp. 120–121.

Ibid., p. 162.

Ibid., pp. 279–280.

In general on this subject, see Gillingham (2008); Russell (1975).

Neff (2014), p. 84.

The Tractatus de Bello, Ch. LIX. I have made use of James Brierly’s 1917 translation of the Treatise Concerning War, Reprisal and the Duel, Da Legnano (1917).

On these two authors, see Neff (2014), pp. 83–86.

Conceptually, the hostage can be distinguished from the prisoner of war in that he is the guarantor of an agreement, not subject to ransom, is a third party (meaning, not one of the individuals whose performance is being guaranteed) and is theoretically given rather than taken. On hostages, see Kosto (2012).

Gillingham (2011).

Keen (1965), pp. X–1.

Whittaker (1987). We will also not treat the slave laws of the “barbarian kingdoms”. On those laws, see Nehlsen (1972).

Marc Bloch is, by all standards, the person who revolutionised the study of the Middle Ages. His views on the evolution from slavery to serfdom can be found in Bloch (1989); Bloch (1947).

Bloch (1989), pp. 242–248.

Ibid., 165.

Ibid., 242–248.

Bloch (1989), pp. 255–260; Foviaux (1993), p. 284.

Bloch (1947).

The terminology could differ from country to country. In England, for example, the term villein was used most often to denote the legal category of unfree peasants.

Bloch (1989), pp. 260–266.

Epstein (2018).

Rio (2017), p. 247.

For an excellent English language survey, focused on France but also of relevance for Western Europe at large, see Barthélemy (2009), pp. 68–136.

For an overview of Marxist thinking on this subject, see Bonnassie (1991), pp. 8–12.

This idea owes much to Marc Bloch, who proposed two feudal ages in his Feudal Society. One between the ninth and tenth century, and a second one in the twelfth and thirteenth century. Within French historiography, see in particular Poly and Bournazel (1980).

An excellent survey is Mazel (2010), pp. 637–648.

Davies (1996).

Verriest even went further by claiming that only a relatively small percentage of the population ever had the status of serfs, whereas the majority of peasants stayed free. Taxes such as the chevage were no sign of serfdom, but rather of tenancy, he proposed in Verriest (1946).

Bonnassie (1991).

Rio (2017), pp. 241–245.

Logan (1932), pp. 473–475.

Gillingham (2011), p. 14.

Ibid., pp. 12–14.

Maxwell (1975), pp. 51–52.

Van Bavel (2010), pp. 76–77.

Pelteret (1996), pp. 251–254.

Baker (2002), p. 468.

Pollock and Maitland (1968), pp. 430–432; Holdsworth (1922), p. 491. One final note on terminology: several writers tend to use both the terms “villeinage” and “serfdom” when talking about the unfree peasantry in England. For the purposes of this chapter, when reference is being made to serfdom, it is meant in a broad way, encompassing the legal, social and economic system of unfreedom and dependence. When reference is made to villeinage, I am discussing the narrower, legal English institution itself.

Bloch (1989); Holdsworth (1922), p. 491. The reason for this more in-depth overview of English villeinage is that in the Early Modern Era, questions of slavery in England would also be tied to the question whether and to what extent chattel slavery could be seen in connection with or legitimised by the institution of villeinage. Much of the claims of Francis Hargrave, one of the lawyers in Somerset v. Stewart, would be based on the institution of villeinage and the fact that it could not serve as a means to allow chattel slavery to exist in England. But defenders of slavery equally well tried to use the villeinage argument, as Dana Rabin noted that: “The argument for the legality of slavery in England was made on the basis of analogy between slavery and the “complete subjection to a feudal lord or superior”, known as villeinage”, see Rabin (2011), p. 11.

Both Glanvill and Bracton were treatises written at the beginning of the development of the common law system. In the nascent system of royal justice, one could only commence proceedings in the royal courts if an action was available, which explains why both Glanvill and Bracton did not expound on villeinage very systematically, but rather talked about it when discussing the compilation of available royal writs and procedures which they initiated. Baker (2002), pp. 175–177. I have used the following editions of Glanvill and Bracton, and will use standardised references of both works when referring to any of them: for Glanvill (written approximately between 1187–1189), the 1965 translation by G.D.G. Hall, Glanvill (1965); for Bracton (written approximately between 1220–1230), the 1968 translation by Samuel E. Thorne, Bracton (1968).

Glanvill (1965), Book V [5].

Baker (2002), pp. 468–469.; Bracton (1968), F. 4, the first classification of persons. Much has been made at times of the distinction between a villein regardant and a villein in gross, the former tied to a manor and the latter tied to the lord of the manor. As Holdsworth has clarified, differences in applicable rules between the two were small and insignificant, and this difference did not constitute two separate kinds of unfreedom. Holdsworth (1922), p. 508.

Bracton (1968), F. 197B and F. 198B, quoted in Pollock and Maitland (1968), p. 415.

Baker (2002), pp. 468–469. Bracton (1968), F. 25. Villein tenure meant that the services connected with the tenure were uncertain and that the tenant did not hold in his own name, but in the name of his lord, and stood in contrast to socage tenure, where the services due to the lord of the manor were fixed. Tenure stood conceptually apart from villeinage de sank, which referred to personal status. Ibid., pp. 307–308.

Bracton (1968), F. 5. Pollock and Maitland (1968), p. 424.

Bracton (1968), F. 190.

Pollock and Maitland (1968), pp. 424–425. Some claimed that there was also a third means through which villeinage arose, namely that prolonged villeinage de facto could generate villeinage de jure. Ibid., 425–426.

Baker (2002), pp. 468–470.

Hyams (1980), pp. 162–183. During the reign of Edward III, the possibility for the villein to use the writ de libertate probanda, very similar to de homine replegiando, was taken away by statute. Holdsworth (1922), p. 497.

If each party brought suit and both were deemed to be sufficient, the court decided between them on the basis of a jury verdict. Hyams (1974).

The process by which villeinage disappeared was set in motion in the fourteenth century, but endured well onto the era of Elizabeth I (1558–1603), which is why the legal means by which villeins achieved their freedom will be discussed in the next chapter.

Hilton (1969), pp. 32–43. For the influence of the Black Death on the English law of villeinage, see Palmer (2000), pp. 16–17.

Hilton (1969), pp. 55–59; Baker (2002), pp. 470–472.

Bély (2010), pp. 1160–1163; Olivier-Martin (2010), pp. 282–284.

Gallet (2010), pp. 1160–1163.

Nicholas (1992), pp. 23–26.

In general, see Van Bavel (2010), pp. 76–82. There were marked differences even between those counties located next to each other. For example, Verriest’s critical study on serfdom in the County of Hainaut can be compared with Warlop’s discussion for Flanders, where serfdom was an important force. Likewise, Jacob has noted how the area around Picardy was more subject to servitude réelle, whereas in Flanders servitude personelle was dominant. Warlop (1975); Verriest (1946); Jacob (1990).

Warlop (1975), pp. 70–78.

Nicholas (1992), p. 106; Godding (1991), p. 48. I am leaving aside (and refer to Godding’s work for) other categories such as the hommes d’avouerie or voegtmannen, who found themselves in some sort of intermediate status between liberty and slavery.

For some of the particularities of Flemish serfdom, see Van Caenegem (1990).

Verlinden (1955), pp. 748–752. As concerns Roussillon, one does have to bear in mind that after the demise of the formally independent kingdom of Majorca in 1343, Roussillon was annexed to the Kingdom of Aragon. It was only after the 1659 Treaty of the Pyrenees that Roussillon would be re-attached to France.

Ibid., 748–792.

Ibid., 846–848.

Rigaudière (2010), pp. 449–451.

In particular, see Verlinden (1977).

Verlinden (1955), p. 427. This also explains why many Romanists talked about slavery in such a casual fashion in their works.

Ibid., 252–278.

Watson (1989), pp. 40–42.

Saunders (1982), pp. 113–115.

In 1969, Philip Curtin was the first one to attempt to quantify the Atlantic slave trade in Curtin (1969). Since then, various historians have tried to come to the closest possible approximation of the number of slaves that were shipped from the African shores to the Americas. Their work has been collected in the Transatlantic Slave Trade Database, a collaboration between a global community of scholars.

Whilst all of the Classics did have something to say on slavery, this was not a topic in all of their works. Therefore, no reference will be made to Gentili’s Hispanicae Advocationis Libri Duo or De Legationibus Libri Tres, Grotius’ De Jure Praedae Commentarius, Bynkershoek’s De Domino Mares Dissertatio and De Ford Legatorum Liber Sigularis and Pufendorf’s De Officio Hominis et Civis Juxta Legem Naturalem Libri Duo. As I have used these materials myself, reference will be made to the relevant parts of the text of these primary materials. I have found Jean Allain’s treatment of this issue very instructive to understand the views of the Classics and to easily trace the relevant parts of their works. Therefore, for a broader discussion of the views of the Classics than the scope of this work permits, I would gladly refer the reader to his excellent treatment of the issue in Allain (2012). As a side note, I do wish to clarify that slavery was legitimised during this period in a variety of ways. Racism, the so-called Curse of Ham (the ancient idea that the black race was the progeny of the biblical figure Ham, who had been cursed by his father) and a variety of other means were also used to legitimise slavery, but this would lead us too far. In general, for other legitimations of slavery, I would refer the reader to the following books. For France Rushforth (2012). For England: Guasco (2014). For the United Provinces: Emmer (2007); Van den Boogaart and Emmer (1979); Priester (1987); Vink (2007).

No reference is made to the Southern Netherlands in this part. Up to 1714, they were part of the Spanish Empire. After the war of the Spanish Succession, the Southern Netherlands came in Austrian hands. The Austrians did not have any substantial colonies.

In particular, two other regions are interesting as concerns the legal history of slavery in relation to the European powers. They are largely subservient to the goal of this part, which is to show the continuity in legal thought on slavery as an institution. This can best be done by explaining the legal and institutional underpinnings of the largest slaving venture, the Atlantic slave trade. First, slavery would continue to be a part of the exchanges between Muslim forces and Christian nations in the Mediterranean region, especially so because of the activities of the Barbary pirates. This should be seen in the same context as the previously discussed issue of the Iberian Christian powers fighting a just war against the Muslims of Al-Andalus. This field of study has received more attention in recent years, with two landmark studies by Davis and Weiss. Davis (2003). Weiss (2011). Although the Barbary pirates were the primary enslavers (Davis estimates that between the sixteenth and the nineteenth century, between 1 and 1.25 million Europeans were captured by the Barbary pirates), the European Mediterranean powers would enslave Muslims as well. As this Mediterranean slavery is primarily of some relevance for the French legal order’s reaction to slavery, I will make reference to this issue in the next chapter. Second, the European powers also had colonies in the East Indies and on the Indian subcontinent, where they would use slave labour as well. As Van Welie noted, this subject is far less approachable than the Atlantic slave trade: there was no clear beginning and no clear end to this slave trade, there was no clear racial identification and the geographic direction of this trade was multidirectional, Van Welie (2008). Considering all this, I believe a focus on the transatlantic slave trade is the best choice. Finally, although limited and eventually prohibited, England, France and the United Provinces also experimented with enslaving native Indians.

Treaty of Tordesillas between Spain and Portugal of 7 June 1494. Ratified by Spain July 2nd, 1494 and ratified by Portugal 5 September 1494 in Davenport (1917), pp. 84–100.

Hanke (1949).

Alves and Moreira (2010), pp. 1–6. For an extensive bibliography on Spanish scholasticism, see Decock and Birr (2016).

Neff (2014), pp. 151–153.

In general, see Chapter 4 and 5 of Neff (2014).

Scott (1934). Although De Victoria did not publish any works himself, Brown Scott has collected much of the lecture notes that were written down by his students. I have made use of the 1917 translation of The Reflections in Moral Theology of the Very Celebrated Spanish Theologian, Franciscus de Victoria by J.P. Bate. In the references below, I have made use of the original texts that are annexed to Brown Scott’s book (such as De Indis).

In particular, see Hanke (1949); Pagden (1986).

Hanke (1974).

De Indis, XIII–XIV.

de Victoria (1917), 114.

De Indis, XXXVI–XLIII.

Later on, the Asiento de negros would become treaty based and amalgamated into one Asiento, as the Dutch, Portuguese, French and English would contend with each other for the privilege of delivering slaves (and illegally, other goods) to the Spanish colonial market. Scelle defined the Asiento as “Un contrat de droit public, par lequel un particulier ou une compagnie s’engage, vis-à-vis du Gouvernement espagnol, à le remplacer dans l’administration du commerce de la main-d’oeuvre noire, aux Index ou dans une region des Indes occidentales”, Scelle (1906a), p. 27.

Drescher, Abolition: A History of Slavery and Antislavery, 65.

Suarez (1944), 341–350. I have made use of the 1944 translation by Williams, Brown and Waldron of Suarez’ work.

Neff (2014), pp. 148–149.

Belli (1963), Part II, Ch. XII. I have made use of H.C. Nutting’s 1936 translation of Pierino Belli’s A Treatise on Military Matters and Warfare (originally from 1563).

Ibid., Part II, Ch. XVIII.

Ibid., Part IV, Ch. I.

Neff (2014), p. 148.

Ayala (1912), Book I, Ch. V, [16]. I have made use of J.P. Bate’s 1912 translation of Balthazar Ayala’s 1582 On the Law of War and on the Duties Connected with War and on Military Discipline, Three Books.

Ibid., Book I, Ch. V, [18].

Ibid., Book I, Ch. V, [19].

Neff (2014), p. 149.

Oddly enough, Gentili seems to claim that slavery never ever existed in wars between Christians, which is in any case wrong. He does not follow up on this assertion. Gentili (1933), Book III, Ch. IX. I have made use of Humphrey Milford’s 1933 translation of Gentili’s Three Books on the Law of War (originally from 1598).

Whilst Neff does mention that Gentili’s thinking was framed within a comprehensive natural law framework, he does not explicitly place Gentili within his category of emanationist thinkers. When it comes to slavery, however, his line of reasoning falls squarely within Aquinas’ line of thought.

As becomes clear later in the treatise, Gentili is referring to Jean Bodin’s objection to slavery.

Gentili (1933), Book III Ch. IX.

“Bodin tries to show that the law of slavery is not a part of the law of nations. But the founders of the science of law, Plato, Xenophon and Aristotle, oppose him; as who does not?”. Ibid., Book III Ch. IX.

Allain (2012), p. 38. Whilst it is true that Spain and Portugal’s involvement in the transatlantic slave trade had grown by this time, it does have to borne in mind that neither the English, nor the Dutch or the French were involved in the slave trade as of yet.

Grotius (1925), Book I, Ch. 1, XIII. I have made use of F.W. Kelsey’s 1925 translation of Grotius’ On the Law of War and Peace Three Books (originally from 1646).

Ibid., Book I., Ch. 1, XIV–XV.

Cairns (2001), p. 201.

Grotius (1925), Book III, Ch. 7, I.

Ibid., Book II, Ch. 5, II.

Grotius’ argument is discussed in full in Cairns (2001), pp. 233–244. Although Cairns and Van Nifterik do not seem to differ as concerns Grotius’ vision of slavery according to the ius gentium, they have a different interpretation as regards Grotius’ interpretation of slavery according to the ius naturale. Cairns believes that Grotius is dealing with slavery in the ordinary sense of the word in this part. Van Nifterik, however, believes that when Grotius is talking about servitus in this part of his text, he is rather dealing with a sort of unfreedom that we would translate as “perpetual service”, instead of chattel slavery.

Grotius (1925), Book III, Ch. VII, I–II.

Ibid., Book III, Ch. VII, V.

Ibid., Book III, Ch. VII, IX.

Cairns (2001), p. 201.

Neff (2014), pp. 167–170.

The naturalists did accept that treaties between groups of states could supplement the natural law, but it had a subsidiary role in their grand scheme of thinking. Next to that, whereas Hobbes foresaw a limited substantive content for the ius naturale, many naturalists also diverged from this approach. Ibid., pp. 173–174.

Furthermore, he is the one who first used the term ius inter gentes (law between nations) instead of ius gentium (law of nations), Ibid., p. 171.

Zouche (1911), Part. I-Sect. 8–1. In the 2nd part of his work, Zouche devoted some attention to the question whether persons that had surrendered themselves after having bargained for their live could still be enslaved or detained as prisoners, a practice he condemned (Part II–Sect. 10–34). I have made use of J.L. Brierly’s 1911 translation of Richard Zouche’s An Exposition of Fecial Law and Procedure, or of Law between Nations and Questions Concerning the Same (originally published in 1650).

Bush believes that by using references to Greeks and Romans, Zouche cannot have wanted to effect the domestic, English legal order. Rather, the arguments Zouche made could be extended by analogy to the issue of black slavery. Bush is convinced that this was Zouche’s intent. Bush (1993), pp. 449–452.

Rachel (1916), 2nd dissertation—Of the Law of Nations—XLIX and L. I have made use of John Bate’s 1916 translation of Samuel Rachel’s Dissertations on the Law of Nature and Nations (originally published in 1676).

Textor (1916), Chap. 18–39–41. I have made use of J.P. Bate’s 1916 translation of Johann Wolfgang Textor’s Synopnis of the Law of Nations (originally published in 1680).

Ibid., Chapter 18–42. He also elaborated on the question whether Turks and barbarians could legally hold Christians as slaves, which he believed they could (he considered that not all wars of the Turks were unjust and that, even if they were, the effects of slavery as a provision of the law of nations might still apply). Next to that, he clearly held that a slave should not be manumitted when he embraced Christianity, though he quoted Pope Alexander III to the effect that Christian slaves should be treated better than others (Chap. 18–43, 47–49).

Note that at this point, Sweden itself also had an interest in the transatlantic slave trade, as they had a presence on the Gold Coast starting from 1650 with their Swedish Africa Company. Allain (2012), p. 46.

Neff (2014), pp. 175–176.

von Pufendorf (1934), Book IV-Chap. 3–2. I have made use of C.H. and W.A. OIdfather’s 1934 translation of Samuel von Pufendorf’s Of the Law of Nature and Nations, Eight Books (originally published in 1682).

Ibid., Book IV–Chap. 3–4.

Ibid., Book IV–Chap. 3–5.

Allain (2012), p. 48.

Bynkershoek did not have much use to the ius naturale anymore, and pronounced that “practice is the origin of the law of nations”. He can be seen as part of those scholars of international law who tended to tilt the balance of international law more and more towards discussions of state practice (= ius gentium), instead of discussing the content of the ius naturale. His work was unsystematic, but very useful for the day-to-day issues amongst states. Neff (2014), p. 192.

Van Bynkershoek (1930), Book I-Ch. III. I have made use of Tenney Frank’s 1930 translation of Cornelius van Bynkershoek’s On Questions of Public Law Two Books (originally published in 1737).

Allain (2012), pp. 48–49. Note that Bynkershoek was the only one amongst the Classics to effectively be involved in a case regarding slaves, which will be discussed later.

Wolff acknowledged the existence of four categories of law. Next to the ius naturale, there was law that depended upon the free will of humans. This could be divided in stipulative (= treaty-based) and customary law. This did not qualify as binding between all states. Finally, he also recognised “voluntary” law, which was based on the presumed consent of all states, and universal in scope. Neff (2014), pp. 183–187.

von Wolff (1934), S. 811–812. I have made use of J.H. Drake’s 1934 translation of Christian von Wolff’s The Law of Nations Treated According to a Scientific Method (originally published in 1764).

Ibid., S. 814–815.

Allain (2012), p. 51.

von Wolff (1934), S. 874.

Neff (2014), pp. 194–198.

Vattel (1916), Ch. VIII, 147–151. I have made use of C.G. Fenwick’s 1916 translatrion of Emmerich de Vattel’s The Law of Nations or Principles of Natural law (originally published in 1758).

Ibid., Ch. VIII, 152.

Allain (2012), pp. 54–55. For an example of Scottish lawyers using Grotius’ views to assert the legitimacy of slavery, see Cairns (2001), pp. 20–34.

Bush (1993), p. 451. Bush also believes that racism might have played a role. To explain the many references to enslavement of “Saracens”, Bush opines that this might have to do with the fact that the Classics of the sixteenth and seventeenth century often used medieval models as inspiration for their texts. These texts contained many references to the struggle between Muslims and Christians. Given the recent outpouring of works which have re-assessed the enslavement of Christians by the hands of the Barbary Corsairs (which postdate Bush’s work), his opinion might have to be re-evaluated. Writers of that time must have been well aware of the enslavement of Christians by Muslims, and thus were not necessarily just copying from their medieval predecessors.

Wheaton (1936), pp. 497. I have made use of G.G. Wilson’s 1936 edition of Henry Wheaton’s Elements of International Law (originally published in 1836).

Watson (1989), pp. 40–62, 91–101. For Spain, this changed in 1614, when it was decided that the laws of Castile did not automatically have force of law in the Americas, unless the Consejo de las Indias passed the law.

Morgan (2007), pp. 7–10.

Ibid., pp. 18–21.

For an exact breakdown of the numbers of the British slave trade, see Richardson (1998).

Drescher (2009), pp. 245–267.

For a comparison between the French and English colonial administration, see Taylor (2002), pp. 140–141, 373.

For the usage of this term, see Bilder (2008).

Calvin’s case (1608) 77 E.R. 377. The case itself dealt with the position of Scottish people under English law after the 1603 Union of the Crowns. It is also well discussed by Bilder (2008), pp. 35–40.

Blankard v. Galdy (1693) 90 E.R. 445. The case itself dealt with Jamaica, with Chief Justice Holt deciding that Jamaica was a conquered colony. The status of colonies was often re-litigated in England, which only exacerbated the difficulty of the relationship between colonial and English law. For some examples of this re-litigation, see Bush (1993), p. 462.

Van Cleve (2006), p. 619. For more literature on the relationship between colonial and domestic English law, also see Cavanagh (2017); Gould (2003).

There was a distinction between royal colonies (governed more directly by the crown) and proprietary colonies (the crown granted several right to a proprietor). For an example of decentralised government in the English colonies, see Taylor (2002), pp. 140–141.

Bilder (2008), pp. 40–50.

For example, the 1698 Trade with Africa bill made reference to the African slave trade. The Statutes of the Realm Vol. 7, 9 Gui. 3, C. 26.

Bush (1998), p. 588. Smith v Brown and Cooper, 91 E.R. 566; (1705) 2 Salk. 666, King’s Bench, in Catterall and Matteson (1926), p. 11.

Nicholson (1994), pp. 11–16. HeinOnline has recently created a database called “Slavery in America and the World: History, Culture & Law”, which sets out the statutory provisions of every English colony’s slave law (http://​home.​heinonline.​org/​slavery/​).

Bush (1998).

Régent (2007), pp. 14, 16.

Blackburn (1997), pp. 285–286.

Rigaudière (2010), pp. 638–639.

Blackburn (1997), p. 285.

Régent (2007), pp. 21–27.

Geggus (2001).

Niort (2015), pp. 59–65.

Watson (1989), pp. 83–85. References to the applicability of the Coutume de Paris can be found in several pieces of French colonial legislation, such as Art. 46 of the Edict of March 1685, Art. 42 of the Edict of March 1724 (the equivalent edict for Louisiana), and various edicts on the establishment of colonial Compagnies.

In historiography, there is a persistent myth that Louis XIII officially sanctioned the French slave trade in 1642 (or even 1648 according to some authors, despite the fact that Louis XIII was already dead for 5 years then). See for example Régent (2007), p. 41; Blackburn (1997), p. 281. Very probably, this is incorrect, as has been shown by Miller (2008), pp. 18–19.

Niort (2015), pp. 17–18. The work done by the colonial authorities between the letter of Colbert and the promulgation of the Edict of 1685 is excellently discerned by Palmer (1996). Usually, this contribution is read in opposition to Watson’s Slave law in the Americas, which focuses more on the contribution of the metropolitan authorities in the creation of the Edict of 1685.

The Edict of 1685 was, however, only applicable to the slaves of Saint-Christophe, Martinique and Guadeloupe, and later extended to Saint-Domingue and Guyane. Separate edicts were later created for the Mascarenes in 1723 (Île Maurice and La Réunion) and for Louisiana in 1724. Niort (2015), pp. 21–26.

Ibid., pp. 59–65.

Pagden (2008), p. 2.

See Israel (1995), pp. 946–951. The governing of the West and East India Company is best discussed in Gaastra (2012); den Heijer (2013).

The original charter of the West India Company can be found at the website of the Avalon Project, a project by Yale Law School to collect documents relevant to the field of law, history, economics, politics, diplomacy and government (http://​avalon.​law.​yale.​edu/​17th_​century/​westind.​asp). The West India Company was also involved in procuring slaves for the Spanish colonies. Between the end of the Eighty Years’ War and the beginning of the War of the Spanish succession, the Spaniards often worked with Dutch merchants. The Dutch also launched a bid for the Asiento contract during the War of the Spanish Succession, but were eventually sidestepped by the English. Scelle (1906a), pp. 450–750; Scelle (1906b), pp. 576–581.

On the Dutch abolition of the slave trade, see Postma (2011), pp. 289–291.

Watson (1989), pp. 102–114. For the text of the placaet, see Groot placaet-boeck, vervattende de placaten, ordonnantien ende edicten van de […] Staten Generael der Vereenighde Nederlanden, ende vande […] Staten van Hollandt en West-Vrieslandt, mitsgaders vande […] Staten van Zeelandt […] Vol. 2, 1235–1248, Art. LVI. Most often, the laws of the States General were called placaeten, but the terms resolutie or ordonnantie (mostly for decisions of the particular States) were used as well, Gerbenzon and Algra (1972), pp. 119–122.

On Roman-Dutch law, see Lee (1953).

Watson (1989), p. 104. Groot placaet-boeck, vervattende de placaten, ordonnantien ende edicten van de […] Staten Generael der Vereenighde Nederlanden, ende vande […] Staten van Hollandt en West-Vrieslandt, mitsgaders vande […] Staten van Zeelandt […] Vol. 2, 1235–1248, Art. LXI.

Watson’s main proof is a reference to a case of the Hof van Holland and the Hooge Raad van Holland en Zeeland in 1736, involving a runaway slave who tried to claim his freedom before the Dutch courts. When looking at the status of slavery in Curaçao, where the slave came from, this Dutch court explicitly referred to Roman law and Art. 61 of the placaet of 13 October 1629. I discuss this case later. On the equation between “gemeene beschreven Rechten” and Roman law, see Gilissen (1981), pp. 349–352.

Article 86 held that “Ende sullen in haer reguard plaetse hebben alle de Wetten en de constitutien by de ghemeyne Rechten, wegen de Slaven ende onvrye Luyden gestatueert, ende de Ordonnantien die by de Vergaderinge der Negenthiene hier naer souden mogen werden gestatueert ende gepubliceert”. Groot placaet-boeck, vervattende de placaten, ordonnantien ende edicten van de […] Staten Generael der Vereenighde Nederlanden, ende vande […] Staten van Hollandt en West-Vrieslandt, mitsgaders vande […] Staten van Zeelandt […] Vol. 2, 1247–1264, Art. LXXXVI.

As regards the case of Suriname, see Davis (2011).