Lyons on Slavery’s Origins and the Multiple Meanings of the Rule of Law

The ever-thoughtful David Lyons of Boston University Law School — whose interests and mine intersect at reparations — has a new paper up on ssrn, "Slavery and the Rule of Law in Early Virginia."  Cribbing now from the abstract:

Many of us learned that slavery began in the English North American colonies in1619 when twenty Africans were purchased from the crew of a Dutch ship that had stopped at Jamestown for provisions. Colonial records do not tell us the fate of the Africans who arrived in Jamestown’s early years. This paper uses legislative and judicial records to reconstruct that history. The institution was not imported from England, under whose laws (which governed its colonies) one person could not own another. Chattel slavery was created by the colonial elite who decided to make their very profitable tobacco industry even more profitable by using slaves instead of contract labor. Colonial records reveal that unlawful enslavement was officially tolerated for decades; that it was incrementally regulated to meet slave owners’ felt needs; and that it was not legally authorized until late in the seventeenth or early in the eighteenth century.

There is an enormous literature on just how colonial Virginia transitioned into slavery for life — and a lot of this relates to a very exciting (though now decades old debate) about racism and economics.  The late Winthrop Jordan's fabulous book White Over Black traces a lot of this debate and the question of how much racism, history, and economics each conditioned Europeans to opt for slavery in the Americas, even though slavery had died out centuries before in northern Europe.  The question of the origins of slavery also touches on very exciting debates about the transmission of legal and cultural ideas from the West Indies to mainland north America.  And I would be remiss if I did not mention Lorena Walsh's important book Motives of Honor, Pleasure, and Profit that looks to probate records to show that slaves were being passed down at death in the middle of the seventeenth century, which helps to pinpoint the origins of the practice of enslavement for life even before statutes explicitly authorized this in Virginia. Practices ahead of formal law, it seems.

And that's where Lyons paper enters this.  He's interested in what the rule of law meant in early Virginia and in particular suggests that the process of enslavement may have been inconsistent with the rule of law.  I'm interested in this because I see so much of the story of the rule of law in early America as using the power of the government to establish order and ensure a stable workforce.  Lyons comes at this from the opposite end and suggests that at least early on, the enslavers were law breakers — or were at least doing things that were at the margins of what was legal.  This raises some fascinating questions about what "law" means — and what was prohibited and permitted under early Viriginia "law."  I'm not yet convinced by Lyons' analysis that slavery was inconsistent with the "law" (whatever that means) in Virginia in the first half of the seventeenth century.  As I understand Lyons' argument, it's that the Charters for Jamestown established English subjects "shall have and enjoy all Liberties … as if they had been abiding and born within this our Realm of England."  He reads that to say that common law applied in the colony; then he says that English law — citing Mansfield's 1772 opinion in Somerset for this proposition — outlawed slavery.  (at 6-7)

Perhaps enslaved people were not English subjects?  Or maybe the common law as applied in the colonies did not outlaw slavery?  Let me put up a couple of counter-hypotheses here — the issue of slavery was left to the colonies and Virginia adopted slavery at the very local level (beneath the level of colonial legislature); or, slavery was not outlawed for non-English subjects and when enslaved people were imported into Virginia their status came with them (Lyons considers this with regard to Massachusetts at 16-17); or the local magistrates had the power to sentence people to slavery for life or beyond.  But whether the "common law" outlawed slavery in the early seventeenth century, no one at the time seems to have recognized this.  All of that is worth thinking about in detail.  There's a great jurisprudential question of just what "the rule of law" means: is it something that has some kind of timeless existence; something that exists in the minds of those of us coming along later (Lyons freely cites cases from the late antebellum era, for instance); some kind of natural law that exists independent of the facts on the ground; or what the people on the ground (at least those in power) all agree to?  

Anyway, I am very much looking forward to seeing where this debate heads.

The illustration is a picture of the James River taken from Jamestown, which I took last February when I was there.  Not the best picture, I know — and also though people often write about the 1619 Dutch ship landing slaves at Jamestown, it may have further down the peninsula.