City University of New York (CUNY) CUNY Academic Works Dissertations, Theses, and Capstone Projects CUNY Graduate Center 2-2016 This Species of Property: Slavery and the Properties of Subjecthood in Anglo-American Law and Politics, 1619-1783 John N. Blanton Graduate Center, City University of New York How does access to this work benefit you? Let us know! More information about this work at: https://academicworks.edu/gc_etds/729 Discover additional works at: https://academicworks.edu This work is made publicly available by the City University of New York (CUNY). Contact: AcademicWorks@cuny.edu This Species of Property: Slavery and the Properties of Subjecthood in Anglo-American Law and Politics, 1619-1783 by John N. Blanton A dissertation submitted to the Graduate Faculty in History in partial fulfillment of the requirements for the degree of Doctor of Philosophy, The City University of New York 2016 © 2016 JOHN N.
BLANTON All Rights Reserved ii Abstract This Species of Property: Slavery and the Properties of Subejcthood in Anglo- American Law and Politics, 1619-1783 by John N. Blanton Advisor: Dr. James Oakes This Species of Property examines the development of the law and practice of slavery in the 17th and 18th century Anglo-American empire through analysis of common law court decisions in England, Massachusetts, and Virginia. The dissertation argues that there was a long and vibrant debate over the legitimacy of the chattel principle – the definition of enslaved persons as a type of property – and that enslaved people and their allies pushed for the recognition of the legal humanity or subjecthood of the enslaved in colonial and metropolitan courts.
This antislavery legal tradition culminated in the famous Somerset decision, handed down by the Court of King’s Bench in 1772, paved the way for judicial abolition in revolutionary Massachusetts, and shaped the contours of early national American antislavery. Defenses of property-in-man that developed throughout the colonial period to answer these critiques, however, also remained potent, shaping the development of proslavery thought in Virginia and preventing concerted antislavery action during and after the American Revolution. By situating the development of colonial American slavery in an imperial context, This Species of Property illustrates the ways in which broader political, economic, and social developments throughout the empire influenced the development of slave law in specific jurisdictions, and how these local developments redounded back onto the metropole, shaping imperial policy and the place of slavery in the new American republic. It also iii restores a longue durée chronological approach to colonial history, demonstrating how Anglo-American slavery developed over time in response to specific local and imperial contexts.
Finally, the dissertation illustrates the myriad ways in which enslaved persons influenced the development of slavery by taking up the mantle of English and British subjecthood, making claims on the local and imperial state through the courts and forcing Anglo-Americans on both sides of the Atlantic to grapple with the contradictions inherent to property-in-man. iv Acknowledgements Completing a project like This Species of Property can be a particularly lonely process at times. As my friends, family, and colleagues can probably attest, there were times in the last three years where I spent far more time immersed in the minutiae of the English Civil War or the fine contours of early modern legal personhood than with the contemporary world that loomed just outside my office. Luckily, I was also linked to a number of amazing communities that kept me grounded, engaged, and (relatively) sane.
Of course any flights of fancy or bouts of insanity in the work that follows are the sole burden of its author – no other persons named herein should be deemed responsible for any errors of fact or interpretation. First, the faculty, staff, and students of The Graduate Center, CUNY, made graduate study an absolute delight. The GC is a true model of what a public educational institution should strive to be. The financial support I received as through an Enhanced Chancellor’s Fellowship, the E.
Thompson Dissertation Fellowship, and two Student Archival Research Grants in Africana and African Diaspora Studies from the Advanced Research Collaborative gave me the luxury of focusing intently on study. I have always felt both challenged and supported by the entire faculty, but particular thanks is due to Susan Buck-Morss, David Nasaw, Marta Petrusewic, Jonathan Sassi, Andrew Robertson, and Barbara Welter for particularly stimulating classes that did much to shape this project. I was truly blessed to have some of the scholars I most admire serve on my dissertation committee – Herman Bennett of The Graduate Center, CUNY; Ben Carp of Brooklyn College, CUNY; and Steve Pincus of Yale University – and all provided the v kind of cogent critique and meaningful support that a graduate student dreams of. David Waldstreicher was a late addition to my dissertation committee, but he went above and beyond the call of duty with crucial advice and support in the final stages of the project.
To other scholars who’ve read bits and pieces of my argument over the years or offered advice and support – particularly Holly Brewer, Graham Russell Hodges, Sarah Gronningsater, Mary Nyquist, Rob Parkinson, Manisha Sinha, John Stauffer, James Brewer Stewart, Sean Wilentz, and John Fabian Witt – I am eternally grateful and my scholarship is immeasurably better thanks to your generosity and collegiality. I simply cannot thank Jim Oakes enough for all of his support over the past 7 years. When I first walked into his office with a half-baked first-year paper, Jim went out of his way to shepherd me into his growing fold of students and showed me the value of asking and answering big questions. Watching Jim do the work of history was, and remains, an honor.
Learning from Jim was made all the more fulfilling thanks to my fellow travelers in the Oakes reading group – Scott Ackerman, Michael Crowder, Greg Downs, David Gary, Joe Murphy, and Paul Polgar. Model historians all, I would not be the scholar I am today without them and I’m lucky to count them as a friends and colleagues. My fellow students from a variety of disciplines, particularly Peter Aigner, Paula Austin, Geoff Burrows, Barry Goldberg, Micki Kaufman, Timothy Scott Johnson, and Luke Reynolds, have been a constant source of support, camaraderie, and inspiration throughout the process of writing This Species of Property. The members of the CUNY Early American Republic Seminar (CUNY EARS) have been especially generous in their constructive critique of the project – special thanks go to Brian Bouton, Sean Griffin, vi David Haupt, Christopher Morell, Cambridge Ridley-Lynch, Roy Rogers, Nora Slonimsky, and Alisa Wade for always keeping me on my toes and being model historians and great friends.
I’ve also been particularly lucky to be part of two truly vibrant learning communities during the gestation of this project – the History Department at Hunter College, CUNY, and Automotive High School and Automotive YABC in Brooklyn, NY. The faculty, staff, and students at Hunter are always a delight to work with, and I extend a special thanks to the students who’ve patiently let me test out my latest ideas about the meaning of freedom or the nature of capitalism in our class discussions. My experiences at Automotive High School and Automotive YABC have, without exaggeration, made me the person I am today – special thanks are due to David DeCamp, Junior Guzman, Scott Hudson, Haseeb Khawaja, Katharine Jarmul, Nicole Jernee, Ben Lockeretz, Michael Pollicino, and Brett Roer. Having a close cadre of brilliant friends outside of academia has always brought perspective to my work, and I thank Jay Cowit, Ryan and Kelly Curry, Dave Kienzler, Kurt Leege, Rob Malko, Kieran Murphy, and Chris Sobik for putting up with me when I went off on longwinded rants about history, politics, music, or whatever else I happened to be fixated on at the time.
Of course, the greatest debt I owe is to my family – Mom, Dad, Christen, Mary, Luke, and the whole Blanton, Kopcienski, and McEneaney clans. Above all, for her patience, support, wit, and wisdom, I thank my wife, Shannon, who helped inspire the direction of this project at its inception and without whom I could never have brought it to fruition – thank you my darling. vii Table of Contents Abstract iii Acknowledgements v Introduction – Slavery and the Properties of Subjecthood in Imperial Anglo-America 1 Chapter I – Colonial Slavery, Imperial Subjecthood: The Problem of Freedom in 30 Early English Colonization, 1547-1641 Chapter II – "Publicke and Sublime Propriety": Slavery and Subjecthood in the 125 Imperial English Revolution, 1641-1660 Chapter III – "A Terrible Master": Slavery and the Human Tragedy of the Stuart 195 Counterrevolution, 1660-1687 Chapter IV – The Williamite Moment: Property Personhood, and the 272 Transformation of Colonial Slavery, 1689-1714 Chapter V – “Britons Never Will be Slaves”: The Passions and the Interests of Late 376 Colonial Slavery, 1715-1754 Chapter VI – “This Golden Act of Liberty”: Slavery, Personhood, and the Crisis of 478 Empire, 1754-1783 Bibliography 584 viii Introduction – Slavery and the Properties of Subjecthood in Imperial Anglo-America In May 1772, Francis Hargrave, a young English attorney with a bright future, stood before the Court of King’s Bench in Westminster Hall to present his arguments in the Somerset case – it was his first oral argument before an English court. The case concerned an enslaved man, James Somerset, who had escaped from his owner, Charles Stuart, while sojourning in London.
Stuart claimed Somerset as his property, hoping to sell his erstwhile slave into hard labor and an early death in a Jamaica cane field. Hargrave’s task was to persuade the court that Somerset could not be held as a slave in England, to vindicate the old maxim that the air of England was too pure for slavery. Drawing on over a century of legal precedent, Hargrave argued that English law “disapproves of slavery, and considers its operation dangerous and destructive to the whole community.” Proslavery advocates might argue that the law of servitude or villeinage allowed for slavery, but the antislavery lawyer pointed out that, although villeinage “had most of the incidents of slavery,” it did not imply the kind of property right Stuart claimed – an Englishman might own the labor of a servant or villein, but they could never own his or her person. Local laws in the colonies might countenance such a property relation, but Hargrave argued that these only “impliedly authorize the slavery of negroes in America; and it would be a strange thing to say, that permitting slavery there, includes a permission of slavery here.”1 Though bound labor was certainly legitimate, and positive laws in the colonies might allow slavery in their own jurisdictions, no person could be a slave in England itself.
Britons never could be slaves. The core of Hargrave’s argument against slavery, one of the most dynamic and resilient institutions in human history, was his opposition to the chattel principle – the definition of enslaved persons as a species of property without separate legal personhood or rights of their own, mere extensions of their masters’ will.2 As Hargrave pointed out, the chattel principle was a construct, as are all the terms we use to define our world – property, personhood, rights, agency, law – and was thus, of necessity, a subject of continuous debate and negotiation. When James Somerset stood before the Court of King’s Bench in 1772, he was a living reminder of the instability of the chattel principle. He had demonstrated his personhood by resisting Charles Steuart’s will and asserting his independent agency, and now he sought to challenge the legitimacy of property-in-man by claiming the mantle of subjechood and pressing his claims before the highest court in the British Empire.
When Chief Justice Mansfield issued his decision in the Somerset case, he stated in no uncertain terms that property-in-man was “odious” to English common law. The kind of dominion Stuart claimed over Somerset, a fellow British subject, was not “allowed or approved by the law of England” and therefore, whatever “inconveniences” it might cause, “the black must be discharged.