Tracing British West Indian Slavery Laws

A Comparative Analysis of Legal Transplants

Justine K. Collins

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000515671
• Edition: 1
• Topic: Storia
• Subtopic: Storia britannica

This book provides a legal historical insight into colonial laws on enslavement and the plantation system in the British West Indies.

The volume is a work of comparative legal history of the English-speaking Caribbean which concentrates on how the laws of England served to catalyse the slavery laws and also legislation pertaining to post-emancipation societies. The book illustrates how these "borrowed" laws from England not only developed colonial slavery laws within the English-speaking Caribbean but also inspired the slavery codes of a number of North American plantation systems. The cusp of the work focuses on the interconnectivities among the English-speaking slave holding Atlantic and how persons, free and unfree, moved throughout the system and brought laws with them which greatly affected the various enslaved societies.

The book will be essential reading for students and researchers interested in colonial slavery, Caribbean studies and Black and Atlantic history.

1 The origins of legal transplantation within the British West Indies (British Caribbean), 1500s–1700s

DOI: 10.4324/9781003224006-2

The English and European expansionism

The Caribbean Oikumene or societal region is a great historic world area, unified by its common history as the oldest colonial sphere with the most extreme experience of colonisation and the most remarkable drama of culture building in the modern world.¹ This historic creation was a result of the acquisition of indigenous territories by Europe, following the overseas expansion of the Portuguese Empire in the early and mid-fifteenth century. European expansionism was reinforced by the domination of indigenous land beginning with the Spanish and the Portuguese in 1492. It was not until the 1600s that England decidedly made serious moves and initiated an active role by challenging the other European powers for the control of Caribbean indigenous territories. Initial English interest in what was referred to as those “small scraps of land” appeared to be more so a mechanism of opposition. This was symbolised by the volatile and vicious onslaught on Spanish settlements and trade, instead of a distinctly defined development of their colonial policies.² These erratic raids and pillages by the English showed the extent of their interest and proficiency in conjunction to their capitalising within the island colonies. This is because most of their efforts were focused on “attracting considerable capital from the investing community”.³ This exemplified the willingness of Englishmen to partake in overseas investment regardless of the political stability of the region once they received great returns. Furthermore, English interest in the West Indies during 1580s and 1590s was also motivated by the combination of profit, patriotism and Protestantism leaving little room for expansionism endeavours. English consciousness regarding the Caribbean was awoken when attitudes shifted in England towards expansionism and variations in policy during the Tudor monarchy of Elizabeth I.⁴ However this new consciousness meant that there was to be intense and prolonged rivalry with Spain which had dominion over most of the Caribbean prior to the sixteenth century.

1 The civilised world/inhabited world as described in Sidney Mintz, “Enduring Substances, Trying Theories: The Caribbean Region as Oikumene”, Journal of the Royal Anthropological Institute, 2 (1996) 294–297. 2 K.G. Davies, The North Atlantic World in the Seventeenth Century: Europe and the World in the Age of Expansion (Oxford: Oxford 1974) 60. 3 Hilary M. Beckles, “The ´Hub of the Empire´: The Caribbean and Britain in the Seventeenth Century”, in Nicholas Canny ed., “The Oxford History of the British Empire, vol. I (Oxford: Oxford University Press 1998) 218. 4 Carla Gardina Pestana and Sharon V. Salinger, eds., The Early English Caribbean, 1570–1700 Vol. 1 Conceptualizing the West Indies (London: Pickering & Chatto 2014) xv.

Thomas Warner and a small group of adventurers initiated the official genesis of West Indian English settlement in 1624. They alighted on the tiny island of St. Christopher with the intent of permanently residing there.⁵ This culminated in James Hay, (first Earl of Carlisle), being granted the letters of patent (via royal prerogative) over the entire “Caribbee Islands” in July 1627, from 10 to 20 degrees north latitude explicitly claiming all the islands not then currently colonized by other European powers.⁶ James Hay was patron of those adventurers and being a member of the gentry, applied to the sovereign for title over the lands they encountered and possessed. The royal prerogative described by Blackstone as the power “the king enjoys alone, in contradistinction to others, and not to those he enjoys in common with any of his subjects”.⁷ On the other hand Dicey defined the prerogative as the “remaining portion of the Crown’s original authority”. He therefore signified the term to “the residue of discretionary power left at any moment in the hands of the Crown, whether such power be in fact exercised by the King himself of by his Ministers”.⁸

5 Frederick G. Spurdle, Early West Indian Government, Showing the Progress of Government in Barbados, Jamaica and the Leeward Islands, 1660–1783 (London: Hard Press 2012) 7. 6 T.N.A. Hertfordshire, No. 12544 “The Earle of Carlisle first Grant of the Caribbee Islands” July 1627. These islands were: Antigua, Anguilla, Barbados, Dominica, Grenada, Guadeloupe, St. Bartholomew, St. Martin, Statia, Montserrat, Nevis, St. Kitts and St. Vincent. 7 William Blackstone, Commentaries on the Laws of England, Book 1, Chapter 7 (Oxford: Oxford University Press 1765) 111. 8 Albert V. Dicey, Introduction to the Study of the Law of the Constitution (London: MacMillan 1889) 424.

The “Crown” when cited not only referred to the monarch, who exercised the personal prerogatives, it is also referred to the central government, i.e., Ministers who exercised the executive prerogatives under the name of Crown. Carlisle’s patent was formulated by the Crown:

Whereas our well beloved and faithfull Cousin and Councillor James Hay Baron of. … Doncaster and Earle of Carlisle having laudable and zealous care to increase Christian Religion and to inlarge the territories of our Empire in certaine lands situated to … northward Region of the World which Region or Islands hereafter described … before were unknown and by certaine barbarous men having no knowledge of the divine power in some part possessed commonly called the Charibbee Islands.⁹

9 Ibid.

The patent expressively gave powers to the earl relating to religious conversion and obvious empire expansionism objectives. Accordingly, the rule of colonial constitutional law maintained that Englishmen in those colonies not subject to civil law (thus pertaining to the barbarous peoples as the king stated), brought such rules of English law as were suitable to their circumstances. In others words the customary rule provided that English law, at least the English common law, followed Englishmen wherever they went. The constitutional rule adopted by Englishmen in colonial times therefore gave them authority to carry over and institute laws of their home country as they saw fit. However, such a rule can possibly be paradoxical since the colonies were no more than extensions of the wider royal regency. Moreover, these colonies were governed via the very charter through which they were founded. The letters patent in essence, gave governmental and proprietary rights over all the islands to the Earl of Carlisle: “Now he hath humbly requested that that whole Region or Countreys should be induced with certaine priviledges and jurisdictions and sound government belonging to the State of a Colony”.¹⁰

10 No. 12544 ‘The Earle of Carlisle first Grant of the Caribbee Islands’ July 1627.

The earl had dominion over the running of the colonies by powers vested via the patent. He could thus enact and act at his own will. The king stated “we do create and ordaine absolute Lord as to whom the property doth belong”, pertaining to the colonies.¹¹ Furthermore, King Charles also granted these “regal” powers to the heirs, successors and assignees of the earl over the entirety of the colonies listed. The earl essentially had powers over religious development which had to be in accordance with the spirit and custom of the Bishopdom of the County Palatine of Durham in the Kingdom of England.¹² The Bishop of Durham as early as medieval times had episcopal and civil dominion over the named region. The level of control such bishops possessed within their municipalities were synonymous to that of the king.¹³ Charles I intended to transmit this type of religious rule to the colonies. However, the fact that the process resided with the earl, meant that the mode of transmission was really left to those to whom he delegated powers.

11 Ibid. 12 The County Palatine of Durham referred to an area in North England presided over by the bishop. The bishop usually enjoyed special authority and autonomy from the rest of the kingdom or empire. 13 D.E. Greenway, “Bishops of Durham, Fasti Ecclesiae Anglicanae 1066–1300: Volume 2: Monastic Cathedrals (Northern and Southern Provinces)”, British History Online (1971) 29–32.

Information on whether the initial laws enacted by the earl (hereafter the Proprietor) were strictly English law is not entirely conclusive but account was given of his delegation to Warner in 1629 over St. Kitts as Governor with the general authority “to do all … things … for the advancement and establishing the public good of the said plantation … according the laws and laudable customs of England”.¹⁴ Furthermore, there was one proviso in such proprietary grants which required that any law enacted should not be repugnant to the laws of England or rather that the laws should not be in conflict with the interests of the England which implicitly referred to the interests of English creditors and merchants.¹⁵ Such declarations illustrated that English law was at least acknowledged.

14 No. 12544 ‘The Earle of Carlisle first Grant of the Caribbee Islands’ July 1627. 15 Ibid.

Moreover, the letters patent provided guidance for the making of laws. It stipulated that the Earl of Carlisle and his heirs had the authority to enact laws as needed and in whatever form they believed best. There was also a provision that such laws had to be sealed with the signet of the Earl of Carlisle and his heirs, which officiated the legislation. The letters patent also proclaimed that the earl and his heirs shall appoint justices, magistrates, judges, officers and ministers to properly execute justice and uphold laws of the region, in whatsoever manner they so believed suitable. Add...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Contents
• Introduction
• 1 The origins of legal transplantation within the British West Indies (British Caribbean), 1500s–1700s
• 2 The origins of slavery laws within the British West Indies, 1600s
• 3 The comprehensive slavery codes of the British West Indies and their reverberations, 1660s–1700s
• 4 The role of legal transplantation within manumission law and other ameliorative measures
• 5 Legal transplantation within post-emancipatory British West Indies, 1830s–1870s
• Conclusion
• Index