Judging from his language, Snelgrave understood that the transformation of free persons into slaves depended on the use of ritualized violence; he knew that in order for the ritual of punishment to be effective in separating the slave from the free, it needed, to use Foucault's majestic phrase, to “perform ceremonies, to emit signs.”120 If slave revolts were expressions of the slaves' refusal to be objects, then the slavers needed to counter them in the relentless ritual of punishment and death; for as I suggested in the last chapter, the ideals of cultural purity, whether located in taste or beauty, depend on the existence of “a symbolics of impurity.”121 Turning to the disciplinary structures within the culture of taste is perhaps another way of inverting the relationship between the pure and impure, the high and the low, the relationships described in the previous chapter as the enabling conditions of the culture of taste.
8
The culture of taste contains few overt traces of the violence of slavery, but this absence tells us a lot about the extent to which the agents of modernity and the civilizing process were willing to go to repress or contain what was considered to be unmodern. Consider, for example, the discourse on civic virtue that circulated in the common culture for most of the modern period. In Britain as elsewhere in Europe, the promotion of a culture of sense and sensibility, of politeness and conduct operated as if the problem of enslavement belonged to the distant reaches of empire far away from the domestic scene in which new identities were being constructed. And although perhaps few consumers of culture would deny that slavery underwrote the wealth that made their new lives possible, many would have considered enslavement remote from their everyday preoccupations. As argued previously, slavery and enslavement were considered anachronistic to the modern imagination in general and to Englishness or Britishness in particular. Not only was slavery deemed to be at odds with the theories of liberty that ostensibly separated the moderns from the ancients, but it was also considered antithetical to the moral geography of Englishness. And nowhere was this form of anachronism more marked than in English debates on liberty and the law and the pressures imposed on these categories by the existence of chattel slavery. Could the practice of slavery be reconciled to ideals of English liberty? That was perhaps one of the central questions dominating English jurisprudence in the second half of the eighteenth century.
In reflecting on the centrality of slavery in shaping English laws, it is imperative to note that the tension between property and liberty was confined mostly to the domestic scene, for in the reaches of empire, in those English colonies where slavery was ubiquitous, questions of jurisprudence were not about rights but about the practical business of managing relations in societies in which the denial of liberty to a substantial part of the population because of their race was considered central to the regulation of the social order. For example, a crucial aspect of English slave laws in the West Indies was its dissociation of slave acts from the basic tenets of English common law. Thus the laws the British enacted to regulate slavery in the West Indies were considered to be not a continuation of English legal practices, but a set of new codes to manage slaves. The slave laws of the British colonies, noted the eminent West Indian historian Elsa V. Goveia, “were made directly by the slave-owning class” and were thus “an immediate reflection of what the slave-owner conceived to be the necessities of the slave system.”122
Goveia notes that a basic conception of English law in relation to the enslaved was not that slaves “were an inferior kind of subject” but that they were “a special kind of property—that is, property in persons”: “Thus, the slave was merchandise when bought and sold in the course of the slave trade. Once acquired by a planter, he became his owner's private property—regarded in part as a chattel, in part as real property. As chattels, for instance, slaves could be sold up for debts if other moveable assets were exhausted. But in other cases they were disposed of in accordance with the laws of inheritance of real estate. They could be entailed, they were subject to the widow's right of dower, and they could be mortgaged.”123 Slave laws in the West Indies were not derived from traditional or constitutional ideas on liberty; on the contrary, they were a set of police regulations intended to maintain the slave system. Slaves were property, and the law was there to regulate this principle. There was no ambiguity on this matter. In England, however, the situation was much more complicated: caught between the desire to uphold ideals of liberty and to protect the rule of property, the managers of jurisprudence were not sure what to do with the black slave who happened to make his or her way into the realm. How could the law adjudicate between liberty and property when there were human beings who were considered chattel?
After trying to avoid arbitrating between private liberty and public property, the English courts were finally forced to confront the issue head-on in the case of James Somersett brought before Lord Mansfield, the chief justice in 1771. Somersett, the slave of Charles Steuart, of either Virginia or Boston, was brought by his master to London, where he managed to escape; but he was captured soon after and put on a ship bound for Jamaica, where he was to be sold into slavery. His friends petitioned the court in London on November 28, 1771, and Lord Mansfield issued a writ of habeas corpus. On June 22, 1772, after months of debate, Lord Mansfield issued his famous decision preventing the return of James Somersett to West Indian slavery.124 The language of his judgment would seem to have removed any doubts that slavery was impermissible under English law: “The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political, but only by positive law.…It is so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.”125
Some interpreters of the Mansfield Decision, most prominently Goveia, have questioned the notion that the judgment represented the triumph of the ideal of liberty over the rule of property. Goveia argues that in the absence of police regulations for slaves in England, English jurisprudence had no option but to treat Somersett as a subject:
Given police regulations, the English law in the West Indies worked against the slave, because he was there reduced to the status of “mere property,” or something very near it. In the absence of such regulations, the slave had to be regarded as an ordinary man; and, in that context, respect for the liberty of the subject, which was also a part of the English legal tradition, worked in his favour. Somersett's case illustrates the operation of the principle of liberty of the subject. There was no law against slavery in England. But the absence of laws providing sanctions for the enforcement of slavery enabled Somersett to win his freedom by refusing to serve any longer as a slave.126
Goveia's argument, then, is that Somersett could not serve as a slave in England, because there were no laws regulating servitude in the realm. But if Somersett had returned to the slave colonies, then he would find laws that would regulate his life as a person who was also an object of property. This point is highlighted by the case of a slave named Grace who, returning to Antigua after a visit to England, discovered that her status as chattel property had not changed. As Lord Stowell, the judge in the case, reminded her in a judgment made in 1827, the West Indies was a place where “slavery could not be avoided.”127 The Mansfield Decision reflects some of the ways in which English law in the eighteenth century was formulated under the pressures of slavery and serves as an illustration of how the presence of the African in bondage would generate debates and disputes about the content and character of liberty. In this case, slavery raised a question that might otherwise seem innocuous: what was the relationship between the idea of liberty under English law—a law rooted in custom and natural rights—and the rules of property, operating under the rubric of contract? As English jurisprudence tried to untangle this knot, it came up against the power of slavery as a form of property.
The haunting power
of slavery can be found more explicitly in Sir William Blackstone's Commentaries on the Laws of England. Considered to be one of the most important commentaries on English law, Blackstone's work has been the standard reference for students of jurisprudence in Britain and its former colonies for several centuries; but perhaps few of those who refer to it to settle questions of law recognize the distinguished scholar's reflections of slavery as the fulcrum around which his authoritative commentaries on liberty revolved. Blackstone's work contains two important commentaries that touch on the question of slavery under English law in decisive, though contradictory, terms. In the first chapter of the Commentaries, where he dealt with the rights of individuals, Blackstone argued that the spirit of liberty was so implanted in the English constitution, its meaning and character, that “a slave or negro, the moment he lands in England, falls under the protection of the laws, and with regard to all natural rights becomes eo instanti a freeman.”128
The question that Blackstone had to confront, however, was the essential character of the slave caught between two competing ideas. Blackstone's challenge was how to reconcile his categorical claim that slavery was not allowed by English law with the simple fact that slaves constituted significant property in the British empire. Blackstone tried to deal with this cauldron in the fourteenth chapter of his book:
I have formerly observed that pure and proper slavery does not, nay cannot, subsist in England; such I mean whereby an absolute and unlimited power is given to the master over the life and fortune of the slave. And indeed it is repugnant to reason, and the principles of natural law, that such a state should subsist any where.…Upon these principles the law of England abhors, and will not endure the existence of slavery within this nation.…And now it is laid down, that a slave or negro, the instant he lands, in England, becomes a freeman; that is, the law will protect him in the enjoyment of his person, his liberty, and his property. Yet with regard to any right which the master may have acquired, by contract or the like, to the perpetual service of John or Thomas, this will remain exactly in the same state as before: for this is no more than the same state of subjection for life, which every apprentice submits to for the space of seven years, or sometimes for a longer term.129
Here we can see the difficulties the jurist faced as he tried to reconcile two important principles in English law—the right to absolute freedom and the sanctity of property. Blackstone found slavery repugnant, but he was not willing to go far enough to exclude slaves from the right of contract; on the contrary, he argued that even in England, the slave could still be tied up in the perpetual contractual relationship that he or she had entered with his or her master. This principle—the right to contract—seemed so important to Blackstone that in the second edition of his Commentaries, he modified the chapter on absolute rights to reconcile it with his thinking on contract. In the new edition, he argued that slaves who arrived in England still fell under the protection of the law, but with the important qualification that “the master's right to his service may probably still continue.”130
It should not come as a surprise that many discussions of the place of slavery in Blackstone's Commentaries have focused on this shift in emphasis and, more precisely, on his insistence that slaves could enter into any kind of contract with their masters. As early as the nineteenth century, commentators on Blackstone, most notably Edward Christian, Downing Professor of the Laws of England at Cambridge University, were calling attention to the absurdity of any notion that a black person in a state of slavery, one who was not free sui juris, could enter into any enforceable contract. After all, he concluded, a contract of service entered into by a person in a state of slavery “would be absolutely null and void.”131
But what I find striking in these debates is not the quibbles over matters of law, but the fact that Blackstone was more willing to amend his views on liberty rather than modify the law as it pertained to existing rights of property. Indeed, while those involved in debates about the legality of slavery in the English tradition were keen to secure the ideals of absolute right under custom and nature, the existence of slavery clouded matters in telling ways. In slavery a form of private property existed at odds with the key principle of the law, and not even the most ardent advocates of a culture of taste that might be transcendental of such matters could escape the shadow of slavery.
A dramatic example of how these two ideals—liberty and property—would continue to define the cultural sensibility of Britishness in the eighteenth century can be found in the dispute between Dr. Samuel Johnson and his close associate James Boswell over the case of Knight v. Wedderburn. Joseph Knight had been purchased in Jamaica by John Wedderburn and had been brought to Scotland, where he served as a servant for several years before declaring himself free, apparently as a calculated move to test whether the Mansfield Decision applied in Scotland as much as in England. Knight's claim to liberty was affirmed by the local sheriff, citing the Mansfield Decision; but Wedderburn appealed to the Court of Session, Scotland's highest court, claiming that the Mansfield Decision applied only to England.132 On July 22, 1778, a split court affirmed Knight's claim to liberty: “The dominion assumed over this negro, under the law of Jamaica, being unjust, could not be supported in this country to any extent: that, therefore, the defender had no right to the negro's service for any space of time, nor to send him out of the country against his consent: that the negro was likewise protected under the Act 1701, c. 6, from being sent out of the country without his consent.”133 Among the powerful dissenters was Lord Monboddo, distinguished Scottish jurist and philosopher, man of letters and taste, and a friend of Johnson and Boswell.
There were two varied and memorable reactions to the decision of the Scottish Court of Session, which I see as an example of the tension between the claims of liberty and property in the eighteenth century and thus the ways in which slavery haunted the making of modern culture. On one side of the debate was Dr. Johnson, who, in characteristic fashion, welcomed the court's affirmation of Knight's freedom as the assertion of “moral rights” against “political convenience” and the triumph of “human virtue” over “the temptations of interest”:
The laws of Jamaica afford a negro no redress. His colour is considered as sufficient testimony against him. It is to be lamented that moral right should ever give way to political convenience. But if temptations of interest are sometimes too strong for human virtue, let us at least retain a virtue where there is no temptation to quit it. In the present case there is apparent right on one side, and no convenience on the other. Inhabitants of this island can neither gain riches nor power by taking away the liberty of any part of the human species. The sum of argument is this:—No man is by nature the property of another: The defendant is therefore, by nature free: The rights of nature must be some way forfeited before they can justly be taken away: That the defendant has by any act forfeited the rights of nature we require to be proved; and if no proof of such forfeiture can be given, we doubt not but the justice of the court will declare him free.134
For Johnson, slavery in any form was abhorrent. No rules about property would justify the existence of human bondage.
Taking a different perspective on the debate was Boswell, a lawyer wedded to custom and tradition and uncomfortable with what he considered to be Johnson's moral absoluteness and “zeal with knowledge.”135 Siding with the dissenters in the case, Boswell came down on the side of the rule of property. Objecting to the “wild and dangerous attempt” to abolish “so very necessary a branch of Commercial interest” without regard to the interests of planters and merchants, Boswell argued, quoting Thomas Gray's “Elegy Written in a Country Courtyard,” was to “shut the gates of mercy on mankind”:
The encouragement which the attempt has received excites my wonder and indignation: and though some men of superior abilities have supported it; whether from a love of temporary popularity, when prosperous; or a love of general mischief, when desperate, my opinion is unshaken. To abolish a status
, which in all ages God has sanctioned, and man has continued, would not only be robbery to an innumerable class of our fellow-subjects; but it would be extreme cruelty to the African Savages, a portion of whom it saves from massacre, or intolerable bondage in their own country, and introduces into a much happier state of life; especially now when their passage to the West Indies and their treatment there is humanely regulated.136
Interestingly, neither Johnson nor Boswell seemed startled that there were blacks serving as servants in the prominent estates in Scotland, or that debates about personal and property rights were being transformed by the lives of Africans, who, ostensibly removed from the culture of taste, were familiar sights on the British landscape. Francis Barber, a freed African slave, worked for Dr. Johnson and was probably the model for Sir Joshua Reynolds's A Young Black. During their journey through the Scottish Highlands in August 1773, Johnson and Boswell were guided for part of the way by Gory, the black servant of Lord Monboddo, one of the dissenters in the Knight case. On this occasion, Johnson and Boswell were struck by the sight of an African in the North of Scotland “with little or no difference of manners from those of the natives.”137 If they had visited the seats of other important Scottish lairds, such as Lord Drummond, second titular Duke of Perth and famous Jacobite, and looked closely at the paintings on the wall, or the insignias on the servant's collars, Johnson and Boswell would have noticed how slavery had indeed become inscribed into the lives of the powerful and their social imaginaries (see fig. 0.1).
Slavery and the Culture of Taste Page 14