“I therefore hate the corrupt, slaveholding, women-whipping, cradle-plundering, partial and hypocritical Christianity of the land... I look upon it as the climax of all misnomers, the boldest of all frauds, and the grossest of all libels. Never was there a clearer case of 'stealing the livery of the court of heaven to serve the devil in.' I am filled with unutterable loathing when I contemplate the religious pomp and show, together with the horrible inconsistencies, which every where surround me. We have men-stealers for ministers, women-whippers for missionaries, and cradle-plunderers for church members. The man who wields the blood-clotted cowskin during the week fills the pulpit on Sunday, and claims to be a minister of the meek and lowly Jesus. . . . The slave auctioneer’s bell and the church-going bell chime in with each other, and the bitter cries of the heart-broken slave are drowned in the religious shouts of his pious master. Revivals of religion and revivals in the slave-trade go hand in hand together. The slave prison and the church stand near each other. The clanking of fetters and the rattling of chains in the prison, and the pious psalm and solemn prayer in the church, may be heard at the same time. The dealers in the bodies of men erect their stand in the presence of the pulpit, and they mutually help each other. The dealer gives his blood-stained gold to support the pulpit, and the pulpit, in return, covers his infernal business with the garb of Christianity. Here we have religion and robbery the allies of each other—devils dressed in angels’ robes, and hell presenting the semblance of paradise” .[i]

 

 

The first Europeans to colonize territory in the Americas, the so called New World, were the Norsemen, also known as Vikings, who, after colonizing Iceland and Greenland, landed in North America in the year 1000 AD. They became the first Europeans to enter into conflict with the indigenous Native Americans and to appropriate their territory. They utilized their colonies in L'Anse aux Meadows in Canada and Maine Penny in the United States to provide essential resources such as timber to sustain their colonies in Iceland and Greenland.[1]

 

Modern European colonial expansion began in earnest in 1402, when the Kingdom of Castille invaded the Canary Islands and dispossessed the indigenous peoples of those islands.[ii] Subsequently, in 1415, the Portuguese began their colonial expansion with the conquest of Ceuta (Morocco).[iii] This was followed in 1419 with the colonization of Madeira and the Azores in 1427.[iv] In 1441, they began the slave trade with the kidnapping and enslavement of Africans who were brought to Lisbon. This nefarious trade in human beings was given official sanction by the Catholic Church when, on 14 June, 1452, Pope Nicholas V issued the Papal Bull Dum Diversas, authorizing Afonso V of Portugal to conquer “Saracens and Pagans” and subject them to “perpetual servitude”.[v] This mandate to enslave was reinforced by Pope Calixtus III in 1456, with the  Papal Bull Inter Caetera.[vi] In 1455, the Papal Bull Romanus Pontifex granted a trade monopoly to the Portuguese for newly discovered lands in Africa and Asia. In 1481, by the Papal Bull Aeterni Regis, Pope Sixtus IV confirmed the sovereignty of Castille over the Canary Islands and granted to Portugal all territorial acquisitions in Africa eastward to the Indies.[vii] In 1482, the Portuguese built the infamous Elmina Castle in Ghana as its first slave trading port on the African continent. Portuguese colonial expansion intensified in 1488 when Bartolomeu Dias rounded the Cape of Good Hope opening the door to further colonial territories in Angola and Mozambique and the East Indies.[viii]

 

Spanish/Portuguese global hegemony was cemented in 1492  with Cristobol Colon's (Christopher Columbus') so called voyage of discovery, when he landed on San Salvador in the Bahamas. This was confirmed by the Papal Bull Inter Caetera, issued by Pope Alexander VI on 4 May, 1493 and the Treaty of Tordesellas, which divided the world outside of Europe between the Spanish and Portuguese empires, with the line of demarcation being a north/south meridian some 370 leagues west of the Cape Verde Islands, with the lands to the east belonging to Portugal and to the west belonging to Spain.[ix] Under this mandate, Spain colonized South and Central America and the Caribbean islands of the Bahamas, Jamaica, Cuba and Hispanola. The Portuguese, for their part, colonized a province in India at Kozhikode, Malacca in modern Malaysia and Ormus in the Strait of Hormuz in the Persian Gulf. In 1500, Pedro Alvares sailed to Brazil and claimed it for Portugal.[x]

 

16th century Spanish colonial expansion led to the development of the encomienda system. Under this system the conquered indigenous peoples were enslaved and considered as vassals of the Spanish monarch who issued encomiendas to conquerors as a reward for their services, which gave them possession and control over groups of the conquered non-christian indigenous people for their labour.  This was held by them and their heirs in perpetuity. In return for their enslavement, the indigenous peoples were supposed to be given religious instruction by the holders of the encomiendas.[xi] It has been pointed out by Raphael Lemkin, who coined the term “genocide” that Spain's abuses of the native population of the Americas constituted cultural and outright genocide. He indicates that slavery was “cultural genocide par excellence” and that  it was the “most effective and thorough method of destroying culture, of desocializing human beings”.[xii] Spanish colonization of the Americas had a devastating impact on the indigenous people of the region, with the total depopulation of the Bahamas and massive decimation of the populations of Central America, South America and the Caribbean, with millions of native peoples suffering “early and agonizing deaths”.[xiii]

 

The horrors of the abuses of Spanish dominion of Native American peoples was starkly exposed by Bartolome de las Casas, a Dominican Friar. In his seminal work,  A Short Account of the Destruction of the Indies,[xiv] las Casas chronicled the first decades of the colonization of the West Indies and described the atrocities committed by the colonizers against the indigenous peoples. Moved by the passionate arguments of las Casas, the Spanish monarch, Charles I assembled a Junta (Jury) of eminent scholars and theologians and organized a debate between las Casas and Juan Gines de Sepulveda. The arguments advanced by de Sepulveda contended that the indigenous peoples of the Americas were less than human and that their barbaric traditions justified waging war against them. He contended that their natural condition indicated that they were unable to rule themselves and that it was the responsibility of the Spaniards to act as their masters. Over several weeks, las Casas rebutted the spurious contentions of de Sepelveda, exposing the inhumane and brutal enslavement and decimation of the indigenous populations. The passionate discourse advanced by de las Casas led to him being declared the winner of the debate by the Junta.[xv] However, Jan Carew points out that, despite this, de Sepelvadas' arguments were nailed to the doors of the churches in the Americas, ensuring that the oppression of the native peoples continued unabated.[xvi]

 

With the diminished indigenous population there was a pressing demand for slave labour in the Spanish colonies. In this regard, the assiento system was devised. The assiento de negros was a license granted by the Spanish crown which gave permission to import slaves, as slaves were considered to be merchandise. For a certain amount of money, a monopoly was given to the asentista to deliver a given amount of male and female slaves for sale in the Americas and the Caribbean.[xvii] The system was established primarily in the Caribbean, where the indigenous population was drastically reduced and there was a pressing demand for labour. Ironically, las Casas was influential in the beginning of the slave trade from Africa, when he contended that Africans were better suited to labour than in indigenous Tainos. King Charles I allowed for the direct importation of Slaves from Africa, with the first asiento being granted to one Laurent de Gouvenot, a favorite of the king, who was granted a monopoly in importing 4,000 slaves over an 8 year period and who sold his asiento to the treasurer of the Casa de la Contratcion de Indias, which controlled trade and immigration to the New World, and three Genoese merchants in Andolusia for 25,000 ducats.[xviii] Initially most asientos were granted to Genoese merchants and bankers but between 1595-1640 Portuguese interests began to be granted asientos, particularly as Africa was in the Portuguese sphere of influence and Portugal controlled the trafficking of humans from Africa. Most Portuguese who obtained the assiento were Conversos, Jewish converts to Catholicism.[xix]

 

At first, slaves were brought from the upper Guinea region, particularly from the territory that is now Sierra Leone. However, following the establishment of Portuguese colony of Angola and the emergence of Brazil as the principal producer of sugar, Angola became the primary source of enslaved human beings and Portuguese merchants and traders began to become the main beneficiaries of the major asiento, particularly during the period when the Spanish monarch ruled Portugal during the Iberian Union. In 1650, after Portugal revolted and obtained its independence from Spain, Spain began to refuse the asiento to Portuguese interests[xx] and made attempts to engage in the trade of slaves from Angola but they soon abandoned this initiative and began to rely on Dutch interests to supply slaves to the Spanish colonies. Between the 1670s-1680s the majority of asientos were granted to the Dutch West India Company rather than Portuguese merchants.[xxi] The quotas under the asiento were often exceeded and the surplus sold illegally in the Spanish colonies as the demand for slave labour was far greater than the supply under the asiento system, particularly with the rise of plantations engaged in the production of sugar and tobacco, which were labour intensive.[xxii]

 

This intensified demand for slave labour led to a marked rise in privateers, who began the trafficking of enslaved human beings to the Spanish colonies. The English “triangular trade in slavery”, in which millions of Africans where enslaved and transported across the Atlantic ocean in what has become known as the Middle Passage, commenced in earnest in the 16th century, when John Hawkins sailed to the Guinea Coast of Africa and, by force of arms, kidnapped some 300 Africans and transported them to the Spanish colonies in the Caribbean, where he traded them to estate owners, who had a constant demand fro cheap labour and were willing to purchase them illicitly, for pearls, hides, ginger and sugar.[xxiii] Subsequently, in what is now known as Sierra Leone, he transported a ship laden with 500 kidnapped Africans, wax and ivory to the Americas.[xxiv] Queen Elizabeth I, learning of the immense profits in the slave trade, sponsored Hawkins, giving him her 700 ton vessel, Jesus of Lubeck, which he used to make kidnapping raids on the West coast of Africa, reaping immense profits for himself and his monarch. The Queen knighted him and  granted Hawkins a coat of arms, which featured a bound slave wearing a necklace and earrings on its crest.[xxv]

 

Another privateer, Francis Drake, a relative of John Hawkins, began his maritime career engaging in extremely lucrative slave trading ventures in tandem with Hawkins. It has been pointed out that Drake played “a central role in the foundation of England's involvement in the slave trade”.[xxvi] His significant role in the English slave trade has been diminished in historical accounts largely due to his navigational accomplishment in circumventing the globe in a 102 foot galleon and his military prowess.[xxvii] Together, Hawkins and Drake reaped immense profits, cementing the triangular trade between England, Africa and the Americas transporting thousands of enslaved Africans to the Americas, until they were intercepted at San Juan de Ulua, by Spanish warships which inflicted significant losses on the privateers. This signaled an end to the slave trading ventures and the beginning of raids on Spanish colonies and shipping.[xxviii] The great wealth being transported from the Caribbean and the Americas had the consequence that other European nations, particularly England, France and the Netherlands began to begin to stake a claim in the region. Initially, an era of piracy arose in which privateers like Sir Francis Drake began to attack wealthy Spanish settlements, the most notable of which was his capture of the Spanish Silver Train at Nombre de Dios in what is now Panama.[xxix] These constant raids and the immense wealth plundered enriched the coffers of the English crown and proved to be a constant thorn pricking and diminishing the Spanish colonial hegemony and in response, they amassed a massive armada to invade England in retribution. Drake was instrumental in the defeat of the Spaniards and in the rise of British naval supremacy.[xxx]

 

A Royal Charter to The Company of Adventurers of London (Guinea Company) established by Royal Charter from King James I began establishing factories along the west coast of Africa engaged in trading for gold. They were in competition with the Dutch in the region and this led to conflict, with the defeated Dutch ceding their ports along the Coast.[xxxi] This led in 1660 to the Royal African company being established by Royal Charter of King Charles I for the control of the trade for gold in the region. They expanded their operations to engage the slave trade which cemented the foundations of the British slave trade, with the triangular trade phenomenon between England, Africa and the West Indies that exemplified the slave trade and trafficking of human beings in bondage.[xxxii] The Royal African Company monopoly in the slave trade was ended and opened to any English merchants wanting to trade in slaves who paid a ten per cent levy to the Company on all goods exported from Africa, by the provisions of the Trade With Africa Act, 1689.[xxxiii]

 

As pointed out by Hillary Beckles, the “transglobal slave trade was more than a criminal movement of enchained African bodies”. He states that It was a transfer of African cosmologies and epistemologies to slaving societies that were enriched by African minds and hands. He further indicates that the “violent recruitment of enchained bodies” also enabled the mobilization of intellectual and cultural resources that gave rise to the ‘West’ as a recipient of Africa’s best.[xxxiv]

 

Estimates of the number of slaves trafficked from Africa to the so called New World range from 10 to 20 million,[xxxv] to 100 million,[xxxvi] with estimates of people dying in the voyage across the Atlantic Ocean, known as the Middle Passage, ranging from from 14 to 200 million.[xxxvii] Marriott points out that whichever figure is true, many historians note that the numbers of enslaved Africans who died at sea were so great that sharks learned to follow the slave routes because they fed on the bodies thrown overboard.[xxxviii] The horrors of plantation slavery in the British Caribbean resulted in an extremely high mortality rate, as indicated by Hillary Beckles in a speech at Oxford University, where he pointed out that of 1.8 million slaves shipped to Jamaica, only 300,000 survived on emancipation and of 300,000 shipped to Barbados only 60,000 survived.[xxxix] It has been indicated, for example, that four out of every ten died within three years of arriving at the Church of England’s Codrington Estate in Barbados. The enslaved Africans suffered “overwork, starvation, cruel punishments and sexual abuse”.[xl]

 

It is critical that this cruel system of enslavement be placed within the English and wider British context of the law surrounding the institution. It has been pointed out that, as late as the eleventh century, there were at least 25,000 slaves in England, or roughly ten percent of the population. In some western counties counties, such as Cornwall and Gloucester, the slave population exceeded twenty percent.[xli] The Abolition decree of the great council of England was passed in 1102. The landmark Irish decree, "that all the English slaves in the whole of Ireland, be immediately emancipated and restored to their former liberty," was issued in 1171. Slavery in England was abolished by a general charter of emancipation in 1381. In later common law cases, none of the foregoing decrees or proclamations were cited or referred to as binding law in relation to the status of slaves generally.

 

In 1569, a man, Cartwright, was observed savagely beating another, which in law would have amounted to a battery. Cartwright claimed that the man was a slave brought to England from Russia and that he was entitled to beat him because of his status as a slave. It was decided that “England was too pure an Air for Slaves to breath in”. The Court also observed that it was often decided in the Star-Chamber, that “no Gentleman was to be whipt for any offence whatsoever; and his whipping was too severe." It is also reported that the court held that the man must be freed, and it is often said that the court held "that England was too pure an air for a slave to breathe in".[xlii]

 

It is inferred that, because he was from Russia, Cartwright's slave was white, and probably a Christian, although this is not recorded. However, it is possible that he was African, as, although they were uncommon, African slaves in Russia were not unknown prior to the emergence of the Atlantic slave trade. It has been claimed that the effect of the case was actually to impose limits on the physical punishment on slaves, rather than to express comment on legality of slavery generally. In the case of John Lilburne  (The Trial of Lilburne and Wharton)[xliii]  in 1649, the defendant's counsel relied upon Cartwright's case to show that the severity of a whipping received by Lilburne exceeded that permitted by law.

 

However, the issue of the legality of slavery reflected a conflict between mercantile custom and the principles of freedom and liberty underscoring the prerogative writ of habeas corpus. More crucially, there was profound ambivalence of the official legal system to the institution of slavery as demonstrated in the approach adopted by English jurists.[xliv] In this regard, it has been contended that the case of Somerset –v- Stewart[xlv] , known as Somerset’s Case, ended slavery in England and that, from that point in time, on landing on English soil, slaves were automatically free, as slavery was against the Law of England and could not be tolerated there.[xlvi] Such views credit English courts, in general and Lord Mansfield, the judge in the Somerset Case,[xlvii]  in particular, with eliminating slavery in Britain. However, this view has been debunked and described as “mythical”, with it being pointed out that, not only is this assertion inaccurate in respect of England, but that English Courts have never effectively ruled that the institution of slavery was illegal.[xlviii] In this regard, it is necessary to look at the English decisions in greater detail

 

Davis points out that the seventeenth century English courts upheld the rights of owners to claim “Negros” as property, by relying on the “fact” that they were not Christians and by appealing to the customary law of merchants, whose trade in slaves was presumed to be part of and sanctioned by the jus gentium.[xlix] As such, a legal fiction or myth was created that slavery was a mercantile custom. Under the lex mercatoria  slaves were treated as chattels with few if any rights, but the English courts did not always recognize mercantile custom as law. In Butts v Penny,[l] an action was brought to recover possession of 100 slaves. The court held that slavery was legal in England in relation to infidels and that an action for trover would lie.  This case was followed in  Gelly v Cleve .[li] These decisions were decided on the basis that the enslaved persons, being infidels, did not possess the rights of Christians.[lii]

 

This argument was rejected by Holt J. in Chamberlain v Harvey;[liii] Smith v Gould.[liv] Holt further held in Smith v Brown,[lv]  that it was not possible to bring an action in assumpsit on the sale of a Black person in England, contending that "as soon as a negro comes to England he is free; one may be a villein in England, but not a slave". However, there is a degree of ambivalence about the decisions by Holt in that the Plaintiff was allowed to amend his pleadings to assert that the sale of the slave took place in the colony of Virginia, where slavery was recognized by colonial law, and that, under conflict of laws principles, the English courts would recognize and enforce the rights arising under Virginian law. Slavery remained a reality in England as Slaves were regularly bought and sold in the markets of Liverpool and London, with actions on contract concerning slaves being common in the 18th century, with no assertion that this was void for illegality. 

 

In 1706 Chief Justice Holt, in Smith v Gould;[lvi] refused an action for trover in relation to a slave holding that “no man could have property in another”. However, he asserted that an alternative action, trespass quare captivul suum cepit,  would be available. This ambivalent decision further bolstered slave owners assertions about the legality of slavery.

 

Nevertheless, slaveholders, wanting clarity on the legality of slavery, sought a legal opinion and in 1729, various slave owners obtained a legal opinion from the Crown's Principle Legal Officers at the Inns of Court, known as the York-Talbot Slavery Opinion, which asserted that, under English law,a slave's status did not change when he came to England and that a slave could be compelled to return to the colonies from England. The opinion further contended that baptism would not manumit a slave. It is notable that the opinion cited no legal authorities, and had no legal reasoning upon which it was based. Nevertheless, slave owners widely published the dubious legal opinion, relying on it to justify the institution of slavery. Lord Hardwicke, who co-authored the opinion before his appointment as a judge, subsequently adopted and endorsed the contentions in the the opinion, without actually referring to it, in Pearne v Lisle.[lvii] That action concerned the legal status of and title to 14 slaves in Antigua. In his decision, Lord Hardwicke contended that slavery was not contrary to English law, and that as the common law of England at the time of colonization of Antigua applied there, that slavery was not unlawful in Antigua.

 

However, Blackstone was in no doubt that "the spirit of liberty is so deeply ingrained in our constitution" that a slave, the moment he lands in England, is free. He asserted that: 

 

“ 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 anywhere. The three origins of the right of slavery assigned by Justinian are all of them built upon false foundations … Upon these principles the law of England abhors, and will not endure the existence of, slavery within this nation; so that when an attempt was made to introduce it, by statute 1 Edw. VI. c. 3, which ordained, that all idle vagabonds should be made slaves, and fed upon bread and water, or small drink, and refuse meat; should wear a ring of iron round their necks, arms, or legs; and should be compelled, by beating, chaining, or otherwise, to perform the work assigned them, were it never so vile; the spirit of the nation could not brook this condition, even in the most abandoned rogues; and therefore this statute was repealed in two years afterwards. 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, and his property”.[lviii]

 

However, leading jurists, Lord Hardwicke and Lord Mansfield, were of a contrary view and felt constrained to recognize slavery and to regulate it, on the basis that “less enlightened nations would reap the benefits of abolition” and slaves “would suffer the consequences”.[lix] Although, the infidel argument as the basis of the institution of slavery was abandoned, with many slaves being converted to Christianity and baptized yet still remaining in a state of enslavement, the legal basis for slavery was maintained by analogy with the old law of villeinage, which had long been abolished.

 

The ambivalent reasoning of Mansfield is clearly demonstrated in the case of R -v- Stayplton,[lx] in which Stayplton was charged with forcibly attempting to remove his slave, Thomas Lewis. He claimed his actions were legal as Lewis was his slave. Rather than utilizing a legal procedure available under the criminal law of the time known as  the Twelve Judges to determine points of law, taking the issue from the jury, he unsuccessfully attempted to dissuade the parties from using the legality of slavery as the basis of the defence. In the event, Mansfield directed the jury that they should presume Lewis was a free man, unless Stapylton was able to prove otherwise and that, unless they found that Stapylton was the legal owner of Lewis they should find the Defendant guilty. During proceedings, Lewis was permitted to testify and the jury convicted. The ambivalence of Mansfield's attitude to slavery is further revealed in the fact that, in the course of his summing up, Lord Mansfield declared that "whether they [slave owners] have this kind of property or not in England has never been solemnly determined".

 

Again, in the acclaimed case of Somerset -v- Lewis,[lxi] the issue of a slave's rights as against his putative master came before the King's Bench Lord in 1771. A writ of habeas corpus had been issued to secure the release of James Somersett, a black man confined in irons on board a ship that had come from Virginia and docked in the Thames and was due to travel to Jamaica. The Defendant claimed that Somerset had the status of a slave under the law of Virginia. Lord Mansfield was anxious to avoid making a ruling, and pressed the parties to settle; but the case was taken up by the West India merchants, who wanted to know whether slaves were a safe investment, and by abolitionists such as Granville Sharp. After arguments had closed, it took Lord Mansfield three months before he delivered his short judgment orally only, ruling that  "the black must be discharged". Lord Mansfield, while stating that slavery was "odious", did not rule on the legality of slavery nor did he pronounce that it was unlawful, nor even that Somersett was no longer a slave. The judgment was decided on the narrow issue that a slave could not be made to leave England against his will. The decision did not address the issue of the conflict of laws, with the question of whether a person was a slave under the law of his domicile, leaving open the question of whether a mere temporary presence in England would not set him free permanently. Subsequent, contract cases concerning overseas slaves came before Lord Mansfield, with counsel  never arguing that the contracts were illegal or contrary to public policy.[lxii]  This decision outraged the abolitionist community and led Granville Sharp to initiate a protest against Lord Mansfield’s decision, condemning it as an open defiance of the laws of England.[lxiii]

 

In R v Inhabitants of Thames Ditton,[lxiv] a Black woman by the name of Charlotte Howe had been brought to England as a slave by one Captain Howe. After Captain Howe died Charlotte sought poor relief from the Parish of Thames Ditton. In the course of his judgment, Lord Mansfield stated that the Somersett case had only determined that a master could not force a slave to leave England,  by analogy with the fact that in earlier times a master could not forcibly remove his villein. He ruled that Charlotte was not entitled to relief under the Poor Laws, because such relief was dependent on having been "hired", and this did not relate to slaves.

 

Again in the case of Gregson v Gilbert[lxv] the captain and crew of the English slave ship, Zong, threw a number of African slaves into the sea off the island of Hispaniola, purportedly to save the lives of the remaining slaves, as provisions were short. The shipowners then sought to claim under policies of insurance, under the law of average, arguing that jettisoning the cargo constituted a recoverable loss.  At first instance, a jury held for the shipowners and upheld the claim. On an application to set that decision aside, Lord Mansfield pointed out that the jury in the trial "had no doubt (though it shocks one very much) that the Case of Slaves was the same as if Horses had been thrown over board". Overturning the decision of the jury, he ordered a fresh trial, but  accepted in principle that the killing of the enslaved Africans was permissible, and did not thereby invalidate the insurance by virtue of being an unlawful act.

In the case of Forbes -v- Cochrane,[lxvi] per Best J., it was indicated that:

 

 "There is no statute recognising slavery which operates in that part of the British empire in which we are now called upon to administer justice."

 

Best indicated that the Somerset case decided that a slave in England was discharged from the status of slave, rendering any person attempting to force him back into slavery as guilty of trespass. However not all reports of the case are in agreement with this contention.

 

Under  s 17 of the Slave Trade Act 1824 enacted in response to these decisions provided that domestic slaves accompanying their masters to the United Kingdom did not become free. It has been indicated that this created new problems because devious slave owners used this loophole as a method for transporting slaves, pretending that the slaves were domestic slaves accompanying their masters.[lxvii]

 

This persistent ambivalence of the English judiciary becomes patent when one looks at the relatively more clear cut position adopted by the Scottish courts on the issues emanating from the institution of slavery. When contrasting Scottish jurisprudence with English jurisprudence, it is clearly demonstrated that, rather than eliminating slavery in England or Britain, English courts were often equivocal and seemingly, duplicitous, in the perpetuation of slavery. As pointed out by Nan Wilson, so far, scant attention has been paid to the Scottish contribution to the regulation of slave status in Britain, while excessive and ill advised praise, has been accorded to the role of the English judiciary in asserting the right of personal liberty for all men.[lxviii]

 

The Union Agreement of 1707, which created the Kingdom of Great Britain, left intact two basically distinct legal systems. English Law has been transplanted by processes of conquest and colonization, such as was the case of the Bahamas and formed the basic law of most of the British colonies. In contrast, after the union of Scotland with England, Scottish law was restricted to Scotland (Wilson 1969:463). Scottish Law has had a different development from the common law of England, being based on modern Roman law, with strong influences from Canon and Natural Laws. The Scottish system of private law was particularly influenced by French and Dutch legal scholars.[lxix] Scots Law had a substantial body of coherent doctrine in respect of status and the institution of slavery. In contrast, English Law had no adequate doctrine and failed to come to terms with the issues surrounding the complex relationship of slave and master.

 

Unlike other European colonial powers in the eighteenth century, English courts only had the mechanisms of the law of property to address the legal issues surrounding slavery and the relationship between slave and master.[lxx] One is forced to conclude that, rather than being impartial in its interaction with Black people and the institution of slavery, the common law legal system is demonstrated to have been complicit and conspiratorial in its relationship with merchants, who thrived from the benefits of the plantation system and its pyramid structure of racial domination and subjugation, and its incestuous relationship with the economic imperative of capitalism and the Imperial structured order of the world.[lxxi]

​

In more recent times, this is demonstrated in the Lord Chancellor’s contribution to the debate on the third reading of the Race Relations Bill 1968, when he indicated that it was not intended that the proposed legislation should interfere with the exercise of normal commercial judgment. He pointed out that life insurance officers did, in fact, discriminate between one person and another and that they would have become insolvent some time ago if they did not. He concluded that, therefore, they are not expected to do other than exercise normal commercial judgment, provided that the discrimination is based on evidence and not a mere guess. He pointed out that, in the case of one insurance company, it was found that they were basing their rates for “coloured people” in England on statistics which were applicable “twenty years ago to Negroes in Tennessee”, and that this did not appear to be sound, but that in the absence of evidence, they should not assume that Black people are worst risks than white people.[lxxii]

​

More crucially, it is important to place the stance of the Imperial Government, in relation to  perverse ambivalence of the English common law approach to the issues of status and slavery, squarely within the framework of the conclusion that law manages its dissonance from social realities of discrimination, prejudice and human rights, by creating doctrinal myths.[lxxiii] We need to be conscious of the symbiotic relation of law with racism and the ways in which it embraces and assumes elements of racism from the wider society, into its inner mechanisms, while at the same time espousing doctrines of freedom, equality and justice and avowed opposition to racism and the racist ideal.[lxxiv] With the official legal system and state law flowing in opposition to forces of racism, in a schizophrenic tandem, the law, itself, is informed and impelled by forces of racism.[lxxv]

​

Critical race theory provides some insight into the dynamics of this process and that, metaphysically speaking, law positively acquires identity by taking elements of racism into itself and shaping them into its own terms, while at the same time, positively acquiring identity from its opposition to and separation from racism.[lxxvi] This equivocal and duplicitous ethos is replicated in more recent decisions of English courts on concepts of “ethnicity”, in the context of the Race Relations Act 1976.[lxxvii] The cases of Commissioner for Racial Equality –v- Dutton;[lxxviii] Mandla –v- Dowell Lee[lxxix]  and Dawkins –v- Crown Suppliers[lxxx]  demonstrate a similar failure of English courts to come to terms with concepts of “ethnicity”, which has resulted in anomalies in which Jews, Gypsies and Sikhs are considered to be ethnic groups, while Muslims, Hindus and Rastafarians are not and accordingly, excluded from the protections that were provided under the provisions of the Race Relations Act 1976, for ethnic groups.

​

In a similar vein, there is an interconnection and linkage between Bahamian immigration policies and the underlying ethos of the policy manifest in the metropol, which is replicated in the Bahamian and British immigration policies in conceptualization of the “other”, who much like the slave, becomes raw material for the machinery of the legal system.[lxxxi]

 

However, in a Bahamian context, it is important that we explore this Janus like approach of the official legal system in the Bahamas in respect of the treatment of slaves and the ways in which the views and prejudices of the wider society informed and legitimized patterns of cruelty and brutality which diminished the lives of ordinary, everyday Black people. This is demonstrated in the attitudes of white settlers in the Bahamas, which generally characterized the West Indian plantocracy’s attitudes and behaviour towards their slaves.[lxxxii] It has been indicated that the period 1823-1833 was a tumultuous era in the history of the Bahamas and during this period, the House of Assembly fought to bar the passage of British ameliorative measures and that, at this time, a number of cases of excessive cruelty to enslaved Black people were exposed. In the seventeenth, eighteenth and nineteenth centuries, there was no dividing line between punishment and cruelty.[lxxxiii]. It has been indicated that the laws introduced in the eighteenth century were concerned with protecting the interests of white settlers and were marked by brutality and repression.[lxxxiv] 

 

Williams contends that this reflected the fear of the planters, who were convinced that only by terrorism and the strictest discipline could the slaves be prevented from rising up and killing off their masters, whom they greatly outnumbered.[lxxxv] It has also been indicated that the laws of this period were characteristic of an age which was hard and brutal.[lxxxvi] However, nowhere was this brutality more manifest than in the institution of slavery, where flogging and other acts of brutality more manifest, with flogging and other acts of brutality being a way of life for many slaves. The white settler plantocracy were determined to crush and break the revolutionary zeal of the slaves for freedom.[lxxxvii] The torture inflicted on the enslaved Africans in the New World, in general and the Caribbean, in particular, was designed to ensure ritual deference and obedience to the rules of the plantation.[lxxxviii] This was legitimized by diminishing the humanity of the Black person and asserting the rights of absolute property in slaves, which included powers of life and death. This was demonstrated in the colony of Bermuda, which was the early source of white settler migration to the Bahamas, in 1730, with petitions to the British Government to make the accusing of anyone of killing a slave a criminal offence.[lxxxix]

​

This illustrates the fiction, manifest in the legal system, utilized to dehumanize and diminish the dignity and inherent freedom of the enslaved African. It also demonstrates a critical point in the institution of slavery, where the slave became “true property”, which is a combination of possession and the absolute right of possession (droit droit/jus duplicatum).[xc] As we have seen above, the slave laws, enacted in the seventeenth, eighteenth and nineteenth centuries, were repressive and diminished the status of the slave from “human being” to “chattel slave”. We have also seen that, the common law did not view the system of slavery practiced in the colonies as contrary to public policy of English common law. This is reflected in more recent times in the indication that racism and race prejudice have never been declared as being contrary to public policy.[xci]

​

The abolitionist movement’s ascension to political prominence and the rapidly changing mood of public opinion in England led to concern for the condition of the slaves and the brutal regimen of punishments which, for many slaves, had become a way of life.[xcii] This led to a period of conflict between the Imperial Government and the colonial Legislatures in the slave holding plantation colonies, most particularly, the Bahamian House of Assembly. This was occasioned when the Imperial Government decided to push through a series of ameliorative enactments to ensure the humane treatment of slaves, designed to bring an end to the unbound violence. The abolitionist movement’s ascension to political prominence and the rapidly changing mood of public opinion in England led to concern for the condition of the slaves and the brutal regimen of punishments which, for many slaves, had become a way of life.[xciii] This led to a period of conflict between the Imperial Government and the colonial Legislatures in the slave holding plantation colonies, most particularly, the Bahamian House of Assembly. This was occasioned when the Imperial Government decided to push through a series of ameliorative enactments to ensure the humane treatment of slaves, designed to bring an end to the unbound violence and brutality of the plantation system. Patricia Williams points out that, although the amelioration of slave conditions began in 1823, the first Consolidated Slave Act passed in 1796, could be considered, to some extent, an ameliorative measure, as it introduced a requirement for sufficient provisions and proper clothing and provided statutory “protection” against the mutilation, maiming or maltreatment of a slave.[xciv] However, as we have seen earlier, the core of the legislation dealt with policing regulations, restrictions of slave travel and the right to bear or possess arms.[xcv] This legislative initiative also provided for severe punishments for escaped slaves and for the ultimate penalty of death for “striking or offering violence” to any white person.[xcvi]

​

In this regard, a more apt description of the 1796 Consolidated Slave Act would be that it created an illusion of amelioration, which, without an adequate and transparent system of slave registration, could hardly be enforceable against brutal slave masters, as the word of a Black Bahamian slave or Black person had no validity in a court of law in the Colony. The real impact of the legislation was to solidify and cement the control of the white slave master over the slaves. However, between the period 1806-1811, there were eleven cases (one per annum) of abuse of a slave in breach of the Consolidated Slave Act, where the slave masters were charged with “wantonly and cruelly beating, wounding and ill treating their slaves” and tried in the Hillary and Trinity Terms of the General Court, with only five being fined and sentenced to the workhouse.[xcvii] Patricia Williams indicates that, ironically, one of the perpetrators was one James Stewart, a person of colour, who was charged with “wantonly and cruelly treating and maltreating” a youthful female slave. She asserts that, perhaps, this represented a turning point of a transition from punishment to cruelty in the master/slave relationship in the Bahamas and that, what was viewed by the official legal system as “just and necessary punishment” in the seventeenth and eighteenth centuries, was viewed as criminal and cruel in the nineteenth century.[xcviii] However, it is important to note Williams’ conclusion that, in Britain, the spirit of improvement influenced politics and legislation with respect to the improvement of social, political and economic ills (ibid.). She indicates that this was catalyzed by the revolutionary upheaval in Latin America and the emergence of the Monroe Doctrine, which placed the entire New World under the diplomatic protection of the United States.[xcix]

​

This spirit of reform was not mirrored in the Bahamas and its Legislature “fought vehemently” against the imposition of the administrative measures emanating from England.[c] Despite the intense opposition of the Bahamian House of Assembly, the Legislature, in 1824, enacted the Amelioration Act. This restricted the whipping of a slave to thirty nine lashes and mandated that female slaves were to be whipped in private. Punishment for violence to white people by an enslaved Black person was reduced from the penalty of death to punishment at the discretion of the Court. The fixing of iron collars, with projecting bars or hooks, around the neck or any part of the body was prohibited, with fines ranging from fifty pounds to one hundred pounds.[ci] In 1826, the House of Assembly enacted the Slave Code, which made it a misdemeanor for any person or persons in the Bahamas to force a slave to work by whipping and the slave owners were expressly forbidden from whipping slaves who had lacerations from previous “beatings and scourgings” and punishment by flogging could be commuted to solitary confinement, field stocks, house stocks or bed stocks.[cii]

​

However, despite this legislation, creating a hint of humanity in the status of “the slave” was negated by the lived reality of enslaved Africans, which continued to be a nightmare existence, as the harsh and brutal punishments of the slave masters continued unabated and the power of life and death continued to be held in the capricious hands of persons who viewed them as less than human. This was clearly illustrated, in 1826, in the case which has come to be known as the “Case of Poor Black Kate”. In this sordid affair, which occurred on the plantation of Henry Moss on Crooked Island, in the southern Bahamas, Kate, an enslaved sixteen year old Black girl, was confined to stocks for seventeen days and nights, during which time she was repeatedly whipped for the none performance of duties while she was imprisoned. On the instructions of Henry Moss’ wife, Helen Moss, red pepper was rubbed into the unfortunate juvenile’s eyes to keep her awake. Upon being taken out of her stocks, Kate was once again flogged and forced to work in the relentless heat of the blazing sun which was constant in the fields of the Moss plantation, where she subsequently died.[ciii] In 1827, Henry and Helen Moss were arrested, tried and convicted of a misdemeanour, their sentence, for their extremely cruel and inhuman actions and the taking of the life of a young human being, was imprisonment for five months and a fine of three hundred pounds and the cost of the prosecution.[civ]

​

Despite the leniency of this sentence, for these grievous acts of cruelty, twenty eight influential white Bahamians, including seven members of the House of Assembly, petitioned the Secretary of State for mitigation of what they viewed as an injustice, because, as far as they were concerned, the brutal punishment inflicted on sixteen year old Kate” was justified.[cv] Patricia Williams points out that, even though a bill of indictment for murder had been presented to the Grand Jury, it was ignored and the lesser verdict of misdemeanor to a slave handed down.[cvi] She further points out that, if murder charges had been procured, it would have laid the blame for the death of Kate directly at the door of the Moss’, which was an unthinkable idea. Although numerous slaves died as a result of harsh and brutal treatment inflicted by owners, none of the sadistic slave masters were ever charged with murder.[cvii] The attitude of white Bahamian society was that they had the right of unlimited and unrestrained punishment over their slaves, who were considered chattel property, to do with as they pleased.

​

Other instances of the white society’s culture of brutality and violence on the plantations abound. In the aftermath of the “Exuma Uprising” in 1830, the slaves of Lord Rolle, an absentee slave owner, had refused to leave the Rolle Estate in Exuma, on the death of Lord Rolle, as they were convinced that they had been manumitted and that the land had, in fact, been given to them. As the plantation system in the Bahamas collapsed, Lord Rolle’s estates in Exuma became less and less profitable, while, at the same time his Black slaves became more and more prolific, with a birthrate of over four percent and a death rate of less than one percent. Craton points out that these rates were comparable with those of modern day Latin America, rather than the “dismal patterns” in nearly all of the slave sugar plantations in the Caribbean.[cviii] He indicates that, in flourishing plantation colonies or even in countries like the U.S.A., where planters in declining staple areas, such as Virginia, could supply slaves to other areas, such as the Southern Cotton states and such a rapidly expanding slave population would be a bonus for the owners. However, the abolition of the slave trade and the restriction of the movement of slaves between islands in the Bahamas meant that Lord Rolle was a “slave breedar” with a disincentive.[cix]  It has been indicated that with the collapse of his plantations in Exuma, he was forced to increasingly allow the slave family units to take on a “proto-peasant” form.[cx]

​

Lord Rolle attempted to transfer his slaves to Trinidad, without success and subsequently to Cat Island, where he proposed to rent them out as a “jobbing gang” to another plantation owner called Thompson. Seventy-seven Black slaves, led by a courageous Black man known as Pompey, resisted attempts to transport them to Cat Island or to yield the land, which they were now convinced belonged them. They fled to the “bush”, where they held out for about five weeks, when their food ran out. Forty four of them, under the leadership of Pompey, eventually, captured a salt boat owned by Lord Rolle and escaped to Nassau, with the express intention of presenting their case to the Governor, Sir James Carmichael Smyth, who had developed the reputation of being a friend of enslaved peoples.[cxi] One A. J. Lees, a Legislative Council member and the agent for the Estate of the deceased Lord Rolle, captured them on their arrival and as he was also a Justice of the Court, tried them as runaways and convicted them for the offence, sentencing them to the workhouse, where they were severely whipped. Eight were women, one of whom was pregnant and two of whom had children at the breast.[cxii] The Governor declared these actions of Lees to be illegal and had him suspended, along with the Police and Chief Magistrate, who had passed sentence in the matter. Additionally, he suspended the other two magistrates who, along with the Chief Magistrate, had signed the warrant for punishment of the female slaves.[cxiii] The complicit nature of the Imperial Government in the brutality, being conducted extensively throughout the colonies in the Caribbean, is demonstrated by the fact that the three magistrates were promptly reinstated, as was Lees subsequently, by the Secretary of State. Saunders asserts that the Governor’s actions had outraged the “influential class”.[cxiv]

​

Saunders indicates that the influential white Bahamian community was not so opposed to abolishing corporal punishment of women but that their actions were prompted by local prejudice and dislike of the Governor, who sometimes warranted their hostility. She further asserts that they also seized the opportunity to demonstrate their superiority and were steadfast in refusing to yield on principle and that outside interference proved to be a menace as far as amelioration of slave conditions were concerned.[cxv]

​

When Pompey and his bold band of forty four brutally beaten but undiminished individuals were returned to the Rolle plantation at Stevenstone, Exuma.  It was reported that there was a “considerable degree of rejoicing and exultation amongst their comrades”.[cxvi] It was further reported that all the slaves refused to perform any work and the overseer sent an “alarming report” that rebellion and insurrection was imminent and that the slaves possessed a number of muskets.[cxvii] Fifty soldiers under Captain McPherson were dispatched to Exuma, supported by the Chief Constable, Patrick Grace, and arriving at Stevenstone in the middle of the night, they searched the slave quarters and seized twenty five muskets. Pompey escaped to Rolleville, where he raised the alarm, which resulted in most of the slaves taking to the “bush” and only three muskets being found. Pompey was captured and returned to Stevenstone, where he received thirty nine lashes. This broke the spirit of the rebellion for the moment and the insurgents returned to work.[cxviii] It has been indicated that Pompey’s Rebellion represented the first victory for Bahamian slave resisters.[cxix]

​

Anthony George Dahl has indicated that the symbolization of Pompey in the Bahamian consciousness is so profound that Pompey as symbol also becomes a champion of the oppressed “Bahamian Arawaks” and for those native who see their destinies linked to the Bahamas free of dominance, as well as keeping alive the “free-spiritedness” of the buccaneers and pirates who made the Bahamas their temporary home in the seventeenth and early eighteenth century.[cxx] He further asserts that in the twentieth century up to 1953, there are two parallel currents in Bahamian society which impact on literary activity: an underground oral experience which safeguards Black tradition, dignity and person hood, thereby keeping the spirit of Pompey alive in Black consciousness and the colonial experience of class division, racial discrimination and oppression of the Black majority by a “minority commercial oligarchy serving the interests of international capital”.[cxxi]

​

Craton asserts that Pompey’s mini-rebellion established the principle that slaves could not be moved with impunity against their will and led to the eventual end to flogging of women and other reforms.[cxxii] Nevertheless, when Smyth attempted to have the Legislature enact legislation to abolish the infliction of corporal punishment of women, it was passed by the Council but rejected by the House of Assembly, which led him to characterize them as “most narrow minded and prejudiced”. In rejecting this proposed legislation, the Assembly had asserted that the whipping of slaves had become extinct.[cxxiii]

​

The lie manifest in this denial was revealed in the case of one of the legislators, John Wildgoose, who owned a retail liquor store in Nassau, and after one of his female slaves had received thirty nine lashes at the hands of an attendant at the town gaol, where she had been confined, went to the gaol and had her whipped thirty nine lashes, a second time in his presence and still kept her in detention. Riley points out that she was whipped the second time because she dared to say that she had not deserved the first thirty nine lashes.[cxxiv] He had also had a second female whipped in public within view and hearing of the Governor.

​

Saunders points out that, to Smyth, this was a flagrant act of injustice and he appealed to the House of Assembly against Wildgoose, but the legislators refused to intervene, declaring the Governor’s actions to be “unwarranted” and “unprecedented”.[cxxv] They resented his interference in the slave/master relationship and what they viewed as inordinate control over the slave courts and the police, and felt that he was encouraging a “spirit of refractoriness” in the enslaved African population. Lacking all confidence in Smyth, the House of Assembly, during his Governorship, was reticent in their refusal to enact significant amendments to the slave code designed to ameliorate the conditions of the slaves.[cxxvi] The relationship between the Legislature and the Governor deteriorated significantly over the “Wildgoose Affair”. This was compounded by the legal uncertainty occasioned by the division in the legal opinions of the primary actors in the colonial common law system in the Bahamas over the issue, with only the Solicitor General viewing the actions of Wildgoose as being illegal, and with the Chief Justice and the Attorney General taking the position that the legislator had done nothing wrong in his infliction of brutal punishments, which were clearly in violation and infringement of the provisions of the Consolidated Slave Law.

​

In this hostile environment, Governor Smyth, acting on specific instructions from the Imperial Government, preceded ex-officio to “preserve the King’s Prerogative”.[cxxvii] With the Grand Jury ignoring the bills of indictment, Smyth’s attempts to prosecute Wildgoose were eventually discontinued.[cxxviii] Having failed to bring an end to the brutal flogging of women and to get the official legal system to effectively respond to clear and flagrant breaches of not only the Consolidated Slave Law but also to the overall issue of amelioration being advocated by the abolitionists, Smyth was eventually transferred to British Guiana, where he served as Lieutenant Governor.[cxxix] On leaving the Bahamas, he made a passionate speech to the Legislative Council, urging the Council to abandon all “civil distinctions” and to accept the “Coloured people” in society.[cxxx]

​

Bahamian intransigence over the amelioration of slave conditions, echoes W. E. Armbrister’s assertion that, while in many cases slave owners were mindful of their slaves being human beings, equal with themselves, and were good and kind in their treatment of them, looking after their health and comfort, there were others who were harsh, and in some cases, cruelly so, with the slaves.[cxxxi] However, one could hardly see how this belief in slaves being seen as “equals” by “many” white Bahamians was manifest in their stubborn retention of not only cruel, brutal and harsh inhumane punishments but also the institution of slavery itself, premised as it was on the concept of inequality and the less than human chattel property status of the slave. Similarly, the strident opposition to outside interference from the Imperial Government explains the widespread support for what were obviously cruel and illegal acts conducted, by a person possessed of legislative and judicial office, in full view of the wider white settler community, and in open defiance of a law enacted in the Colony. If they really saw their unfortunate enslaved Africans as equals then surely they would have manumitted them and supported the enforcement of the provisions of the Consolidated Slave Law. Rather, the overall white settler community, including “influential white Bahamians”, although not universally engaging in such barbaric acts, by their consensual support for the system of slavery and its brutal implementation of harsh, brutal and often sadistic punishments, endorsed and justified these acts as “legal” and “moral”. One thing is certain, this intransigence of the Bahamian Legislature and the wider white settler community and their refusal to ameliorate the conditions of the enslaved Africans, particularly to bring an end to the flogging of women, hastened the advent of the emancipation of slavery.[cxxxii]

​

As succinctly put by Sandra Riley, on the 4th September, 1833, with the stroke of a pen, King William, acting under the authority of legislation enacted by Parliament, abolished slavery throughout the British colonies.[cxxxiii] She indicates that, of the sixteen proclamations posted in Nassau in 1835, fifteen were torn down. There were disturbances in the “Out Islands” but they were soon suppressed. Sandra Riley points out that, even though the British had abolished the system of slavery, they could not cure the baseness and ignorance which caused it, nor could they stem the evils flowing from the jealousy and prejudice so ingrained in it.[cxxxiv] This was clearly indicated in 1841, when Major McGregor told Governor Cockburn that he had suspicions that White Bahamians had been “conveying away Africans for the atrocious purpose of selling them into slavery.[cxxxv]

​

Riley points out that, subsequently, in 1845; Governor Matthews received a petition from people whose relatives had been sold into slavery in Florida. Many were victims of the nefarious practice of intentional wrecking of vessels, with Black crew members, on the coast of Florida. This resulted in the unfortunate Black mariners being captured as slaves and forced into bondage within the slave universe of the United States of America. In one such case, a Black seaman was put up for sale in Mobile, Alabama by a White inhabitant from Abaco.[cxxxvi] Powels indicates that this practice of luring unsuspecting Black Bahamians, by treachery and artifice, to be sold into slavery continued until the close of the nineteenth century, during which period Black Bahamians were tricked into slavery in Suriname.[cxxxvii]

​

It has been contended that memory of slavery in the Caribbean is “no sporting matter” and that, nearly one hundred seventy years since general emancipation in the English-speaking sub-region, the immediacy of the recollection of slavery still angers many in the regional community.[cxxxviii] Further, it has been indicated that:

“This also hinders movement toward ethnic reconciliation, and serves to sustain the identity consciousness that energizes the rapidly emerging reparations movement. In addition, the polarizing politics of post-modern economic globalization that insists history step aside to make room in the popular imagination for a mythical level playing field, daily drives daggers into the heart of the idea that ethnic reconciliation and reparations constitute a unitary idea”.[cxxxix]

​

Beckles points out that the British Emancipation Act of 1833 made the British government “irrefutably complicit in the enslavement of Africans”, for that Act recognized in British law for the first time, that “Africans were chattel, property which could be bought and sold”, property for the loss of which they paid “enslavers”. He indicates that the assessment of the value of their chattel in the Caribbean by the planters was forty seven million pounds of which the British government could only provide twenty million. The remaining twenty seven million was paid to the planters through the period of apprenticeship where the former enslaved were “forced to provide free labour to the plantations for the first four years of their supposed freedom”. Beckles asserts that, in other words, the enslaved paid with their “sweat and blood” more than fifty percent of the supposed cost of ‘their freedom’. He indicates that, in the Caribbean region, the case for reparations cannot be made stronger.[cxl]

​

In this regard, it is appropriate that we conclude this paper with the poignant demand of brother Tony “Exuma the Obeah Man” McKay:

“Pay me for my blood and water, oh pay
Pay me for my son and my daughter, pay me
Pay me for my blood and water, oh pay
Pay me for my son and my daughter, pay me
I come to collect, come to collect, come to collect everything that you owe me
I come to collect, come to collect, come to collect everything that you owe me
I come to collect, come to collect, come to collect everything that you owe me......Pay me for my brothers and my sisters, pay me
Pay me for my brothers and my sisters, pay me
Pay me, pay me, yeah, oh pay me........
You better pay for the blood that you shed, pay me
All of my dead, pay me
Pay me, pay me, pay me, pay me, pay me, oh, pay me
Pay me, pay me, pay me, pay me, pay me, oh, pay me”
 

 

 

[1]     Arthur Middleton Reeves, Ludlow Bemish North and Rasmus B. Anderson et. al. (1906): The Norse Discovery of America: A Compilation in Extenso of all the Sagas, Manuscripts and Inscriptive Memorials Relating to the Finding and Settlement of the New World in the Eleventh Century. Norrœna Society, London/New York; Magnus Magnusson and Herman Palsson (1965): The Vinland Sagas: The Norse Discovery of America. Penguin Books, London/New York; Heather Pringle (2012): “Vikings and Native Americans” In National Geographic, Vol. 221 (11)

 

[i]    Frederick Douglass (2017): Narrative of the Life of Frederick Douglass, An American Slave Written by Himself. Race Point Publishing, New York

[ii]                    F. Fernández-Armesto (2007): Before Columbus: Exploration and Colonisation From the Mediterranean to the Atlantic  

                  1229-1492. University of Pennsylvania Press, Philadelphia

[iii]                  Bailey W. Diffie and George D. Winius (1977): Foundations of the Portuguese Empire, 1415-1580. University of  Minnesota Press.  Minneapolis;  Jonathan Locke  Hart ( 2003): Comparing Empires: European Colonialism From  Portuguese Expansion to the Spanish–American War. Palgrave Macmillan; Thomas Benjamian (2006): Encyclopedia of Western Colonialism Since 1450, 3 Volumes. Thomson Gale, Detroit;

[iv]   Ibid.

[v]    Richard Raiswell (1997): “Papal Bulls of Nicholas V” In The Historical Encyclopedia of Slavery. ABC-Clio, Oxford; Julius P. Rodriguez (1999): Chronology of World Slavery. ABC-Clio, Santa Barbara

[vi]   Julius P. Rodriguez (1999) supra.; Benjamin, Thomas (2006) supra.

[vii]   Frances G. Davenport and Charles Oscar Paullin (1967): European Treaties Bearing on the History of the United States and its Dependencies. P. Smith, Gloucester, Mass.; Stephen R. Brown (2012): How a family Feud in Medieval Spain Divided the World in Half. Thomas Dunne Books, New York

[viii]            Bailey W. Diffie and George D. Winius (1977) supra.; Jonathan Locke  Hart ( 2003) supra. ; Thomas Benjamian (2006) supra.

[ix]   Frances G. Davenport and Charles Oscar Paullin (1967) supra.; Bailey W. Diffie and George D. Winius (1977) supra.; Jonathan Locke  Hart ( 2003) supra. ; Thomas Benjamian (2006) supra.; Stephen R. Brown (2012) supra.

[x]    Ibid.

[xi]   Robert S. Chamberlain (1954): “Simpson's the Encomienda in New Spain and Recent Encomienda Studies” In The Hispanic American Historical Review, May, Vol. 34(2); Charles Gibson (1964): T2006he Aztecs Under Spanish Rule. Stanford University Press, Stanford; Jose Ignacio Avellaneda (1995): The Conquerors of the New Kingdom of Grenada. University of New Mexico Press, Alburquerque; Timothy J. Yeager (1995): “Encomienda or Slavery?: The Spanish Crown's Choice of Labour Organization in Sixteenth Century Spanish America” In The Journal of Economic History, Vol. 55 (4); Lynne Guiltar (1999): “Encomienda System” In Julius P. Rodriguez (1999) supra.; Leslie Byrd Simpson (2021): the Encomienda in New Spain: The Beginning of Spanish Mexico. University of California Press

[xii]                David E. Stannard (1993): American Holocaust: The Conquest of the New World. Oxford University Press, New York/Oxford;  Domenik J. Schaller and Jurgern Zimmerer eds. (2009): The Origins of Genocide: Raphael Lemkin as a Historian of Mass Violence. Routledge, New York; Andres Resendez (2016): The Other Slavery: The Uncovered Story of  Indian enslavement in America. Houghton Mifflin Harcourt, Boston/New York; Douglas Irvin Erickson (2017): Raphael  Lemkin and the Concept of Genocide. University of Pennsylvania Press, Philadelphia;

[xiii]  Ibid.

[xiv]  Bartoleme de las Casas (2019): A Short Account of the Destruction of the Indies. Digireads.com Publishing

[xv]   Lewis Hanke (1949): The Spanish Struggle for Justice in the Conquest of the Americas. University of Pennsylvania Press, Philadelphia; S. Poole (1965): “War by Fire and Blood: The Church and the Chichimecas 1585” In the Americas Vol.22 (2);  Angel Losada (1971): “Controversy Between Sepulveda and Las Casas” In Juan Friede and Benjamin Keen (eds.) Bartoleme de las Casas in History: Toward an Understanding of the Man and His Works. Northern Illinois University Press, DeKalb; Jan R. Carew (1988a): “Columbus and the Origins of Racism in the Americas, Part 1” In Race and Class, Vol. 29; (1988b): Columbus and the Origins of Racism in the Americas, Part 2” In Race and Class, Vol. 30; “(2006): The Rape of Paradise: Columbus and the Origins of Racism in the Americas. Seaburn Publishing Group, Astoria NY; John A. Crow (1992): The Epic of Latin America. University of California Press, Berkeley;

[xvi]  Jan R. Carew (2006) supra.

[xvii]  Robin Blackburn (1998): The Making of New World Slavery: From the Boroque to the Modern, 1492-1800. Verso,London; (2013): The American Crucible: Slavery, Emancipation and Human Rights. Verso, London/New York; Eric Eustace Williams (2003): From Columbus to Castro: The History of the Caribbean, 1492-1969. A. Deutsch, London; Linda A. Newson and Susie Minchin (2007): From Capture to Sale: The Portuguese Slave Trade to Spanish South America in the Early Seventeenth Century; Wim Klooster and P. C. Emmer (2009): Migration, Trade and Slavery in an Expanding World: Essays in Honor of Pieter Emmer. Brill, Leiden/Boston;  Filipa Ribeiro da Silva (2011): Dutch and Portuguese in Western Africa: Empires, Merchants and the Atlantic System, 1580-1674. Brill, Leiden; David Richardson and Filipa Ribeiro da Silva (2015): Networks and Trans-Cultural Exchange: Slave Trading in the South Atlantic, 1590-1867. Brill, Leiden

[xviii] Clarence Haring (1947): The Spanish Empire in America. Oxford University Press, New York

[xix]  Jonathan I. Israel (2002): Diasporas Within the Diaspora: Jew, Crypto Jews and the World of Maritime Empires, 1540-1740. Brill, Leiden

[xx]   Cara Shelly (1996): “Asiento” In Georgette Magassy Dorn and Barbara A. Tenenbaum (eds.) Encyclopedia of Latin American History and Culture, Vol, 1

[xxi]  Robin Blackburn (1998) supra.

[xxii]  Ibid.

[xxiii] James Alexander Williamson (1969): Hawkins of Plymouth: A New History of  Sir John Hawkins and the Other Members of His Family Prominent in Tudor England. Black, London; John Hawkins (2003): The Third Troublesome Voyage Made Withe the Jesus of Lubeck. Wisconsin Historical Society; Nigel File and Chris Power (1995): Black Settlers in Britain, 1555-1958. Heinemann Educational, Oxford; Eric Eustace Williams (2003) supra; Harry Kelsey (2003): Sir John Hawkins: Queen Elizabeth's Slave Trader. Yale University Press, New Haven/London; Jessee Russell and Ronald Cohn (2012): John Hawkins. Lennex Corp., Edinburgh; Peter Fryer (2018): Staying Power: The History of Black People in Britain. PlutoPress, London

[xxiv] Ibid.

[xxv]  Ibid.

[xxvi] Ibid.

[xxvii] Ibid.

[xxviii] Harry Kelsey (1998):  Sir Francis Drake: The Queen's Pirate. Yale University Press, New Haven/London; Charles Nick (2009): Sir Francis Drake: Slave Trader and Pirate. Perfection Learning Corporation

[xxix]   Ibid.

[xxx]  Ibid.

[xxxi]              Robert Brenner (2003): Merchants and revolution: commercial change, political conflict, and London's overseas traders, 1550-1653. Verso, London/New York

[xxxii]        Royal African Company (1698): True account of the forts and castles belonging to the Royal African company, upon the gold coast in Africa, with the number of men, and guns, the nature of the said forts and castles, and the guns planted on them, as taken from sundry persons very lately. Publisher unknown; K. G. Davies (1957): The Royal African Company. Longmans, Green & Co., London; William Andrew Pettigrew (2016): Freedom's Debt: The Royal African Company and the Politics of the Atlantic Slave Trade, 1672-1752. University of North Carolina Press, Chapel Hill; Robin Blackburn (2020): The Making of New World Slavery: From the Baroque to the Modern, 1492-1800.  Verson, London/New York

[xxxiii] 9 Will. 3 c. 26

[xxxiv] Hillary Beckles (2014): “Feature Address Delivered by Hillary Beckles – The University of the West Indies” In the General Assembly of the United Nations website. Available online < https://www.un.org/pga/69/101214_address-beckles/ Accessed 11 October, 2020>

[xxxv] Thomas Lewis (2015): “Transatlantic Slave Trade” In the Britannica website. Available online <https://www.britannica.com/topic/transatlantic-slave-trade Accessed 11 October, 2020>

[xxxvi] Graziella Bertocchi (2016): “The Legacies of Slavery In and Out of Africa” In IZA Journal of Migration, Vol. 5(24). Available online <https://doi.org/10.1186/s40176-016-0072-0  Accessed 11 October, 2020>

[xxxvii]         Michel Mariott (1994): “Remembrance of Slave Ancestors Lost to the Sea” In the New York Times, June 19.

[xxxviii]         Ibid.

[xxxix] Hillary Beckles (2016): “Professor Sir Hillary Beckles Speaks About Reparatory Justice at Oxford University” Video recording on UWI TV Website. Available online <https://www.youtube.com/watch?v=Zm4NxB9SKfc Accessed 11 October 2020>

[xl]    Jonathan Guthrie (2020): “Lex in Depth: Examining the Slave Trade – Britain Has a Debt to Pay” In the Financial Times website, June 28. Available online <https://www.ft.com/content/945c6136-0b92-41bf-bd80-a80d944bb0b8 Accessed 11 October, 2020>

[xli]     F. W. Maitland (1897): Domesday Book and Beyond: Three Essays in the Early History of England.  Cambridge University Press, Cambridge; R. Welldon Finn (1963): An Introduction to the Domesday Book.  Longmans, London; Orlando Patterson (1991): Freedom and the Making o f Western Culture. BasicBooks, New York; Michael Joseph Guasco (2000): “Encounters, Identities and Human Bondage: The Foundations of Racial Slavery in the Anglo-Atlantic World.   A Dissertation Presented to The Faculty of the Department of History The College of W illiam and Mary in V irginiaIn Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy” In W& M Scholar Works. Available online <https://core.ac.uk/download/pdf/235413751.pdf. Accessed October 10, 2020.

[xlii]  Cartwright's case  (In the matter of Cartwright, 11 Elizabeth, 2 Rushworth's Coll 468)

[xliii]              T.C. Hansard (1818-26)

[xliv]  Arthur Dion Hanna jr (2011): Land and Freedom – A Return to the Fishing Village: Sabbatical Essays From a Legal Aid Lawyer. KaraDira BlackStar, Charleston, SC.

[xlv]    (1772) 98 E. R. 499

[xlvi]             Arthur Dion Hanna jr (2011) supra.

[xlvii]               Ibid.

[xlviii]             Arthur Dion Hanna jr (2011) supra

[xlix]    David Brion Davis (1967): The Problem of Slavery in Western Culture. Cornell University Press, Ithaca; (1974): “Slavery, Colonialism and Racism” In Daedalus Vol. 103(2); (1999): The Problem of Slavery in the Age of Revolution, 1770-1833. Oxford University Press, New York/Oxford; (2008): Inhuman Bondage: The Rise and Fall of Slavery in the New World. Oxford University Press. New York/Oxford; (2015): The Problem of Slavery in the Age of Emancipation. Vintage Books, New York

[l]    (1677) 2 Lev 201, 3 Keb 785

[li]     (1694) 1 Ld Raym 147

[lii]      This rationale would seemed to have been adopted in the United States in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), which justified slavery on the basis that Black people had not been recognized as citizens under the US Constitution.

[liii]   (1697) 1 Ld Raym 146

[liv]    (1705-07) 2 Salk 666

[lv]    (1702) 2 Salk 666

[lvi]     2 Salk 666 (1706) Ray 1274

[lvii]    (1749) Amb 75, 27 ER 47

[lviii]  William Blackstone (1753): Commentaries on the Laws of England in Four Books, vol. 1[. Available online <http://files.libertyfund.org/files/2140/Blackstone_1387-01_EBk_v6.0.pdf Accessed )ctober 8, 2020>

[lix]   William M. Wiecek (1974): “Somerset: Lord Mansfield and theLegitimacy of Slavery in the Anglo-American World” In The University of Chicago Law Review Vol. 42 (86)

[lx]   (1771) (unreported)

[lxi]    (1772) 98 ER 499

[lxii]  William M. Wiecek (1974) supra.; James Oldham (1988): “New Light on Mansfield and Slavery” In Journal of British Studies, Vol. 27 (1) January; Alexander Jackman (2018): “Judging a Judge: A Reappraisal of Lord Mansfield and Somerset's Case” In Journal of Legal History Vol. 39 (2)

[lxiii]  Anthony Lester and Geoffrey Bindman (1972): Race and Law in Great Britain. Harvard University, Cambridge Mass.

[lxiv]  (1785) 99 ER 891

[lxv]   (1783) 3 Doug KB 232

[lxvi]   (1824) 3 Dow & Ry KB 679 at 742, 2 B & C 448 at 463, 107 ER 450 at 456, 2 State Trials NS 147

[lxvii] Anti Slavery Society (2007): “Slavery in England” In the Anti Slavery Society Website. Available online <http://www.anti-slaverysociety.addr.com/huk-slavery.htm Accessed October 8, 2020>

[lxviii]            Nan Wilson (1969): “Legal Attitudes to Slavery in Eighteenth Century Britain: English Myth; Scottish Social Realism and Their Wider Comparative Law Context”. In Race, Vol. 11(4)

[lxix]  Ibid.

[lxx]  Ibid.

[lxxi]         Arthur Dion Hanna jr (2011) supra

[lxxii]      Hansard (H.L.), Col. 1355

[lxxiii] James W. Fox (2005): “Doctrinal Myths and the Management of Cognitive Dissonance: Race, Law and the Supreme Court's Doctrinal Support of Jim Crow” In Stetson Law Review, Vol. 34(2) 21 July. Available online <https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1437028_code94984.pdf?abstractid=1437028&mirid=1 Accessed 11 October, 2020> ; Arthur Dion Hanna jr (2011) supra

[lxxiv] Peter Fitzpatrick (1992): Mythology of Modern Law. Routledge, London/New York;  Arthur Dion Hanna jr (2011) supra

[lxxv] Ibid.

[lxxvi] Ibid.

[lxxvii]       Arthur Dion Hanna jr (2011) supra

[lxxviii]     [1989] Q.B. 783 (C.A.)

[lxxix] [1982] 3 All E.R.

[lxxx]  The Times, April 21, 1991

[lxxxi]       Arthur Dion Hanna jr (2011) supra

[lxxxii] Gail Saunders (1995): Slavery in the Bahamas, 1648-1838. Media Publishing Ltd.; Michael Craton and Gail Saunders (1999): Islanders in the Stream: A History of the Bahamian People, Volume 1, From Aboriginal Times to the End of Slavery. University of Georgia Press, Athens GA; Arthur Dion Hanna jr (2011) supra

[lxxxiii]       Gail Saunders (1995) supra.; Patricia Williams (1984): “From Punishment to Cruelty: Treatment of Slaves in the Bahamas, 1723-1832” In Journal of the Bahamas Historical Society, Vol. 6; Arthur Dion Hanna jr (2011) supra.

[lxxxiv]         Gail Saunders (1995) supra.; Patricia Williams (1984) supra.; Arthur Dion Hanna jr (2011) supra

[lxxxv] Patricia Williams (1984) supra.

[lxxxvi]         Ibid.

[lxxxvii]         Ibid.

[lxxxviii]        John W. Blassingame (1972): Sambos and Rebels: The Character of the Southern Slave. Howard University, Washington; (1979): The Slave Community. Oxford University Press, New York; Patricia Williams (1984) supra.

[lxxxix]       Ibid.

[xc]    James Barr Ames (1913): Lectures on Legal History and Miscellaneous Legal Essays by James Barr Ames With a Memoir. Harvard University Press, Cambridge Mass.

[xci]   Arthur Dion Hanna jr (2011) supra

[xcii]  Gail Saunders (1995) supra.

[xciii] Ibid.

[xciv] Ibid.

[xcv]  Ibid.

[xcvi] Ibid.

[xcvii] Ibid.

[xcviii] Ibid.

[xcix]  Ibid.

[c]     Ibid.

[ci]    Ibid.

[cii]   Ibid.

[ciii]  Patricia Williams (1984) supra.; Gail Saunders (1995) supra.; (1999) supra.

[civ]  Ibid.

[cv]   Ibid.

[cvi]  Gail Saunders (1995) supra.

[cvii]  Ibid.

[cviii] Michael Craton (1986): A History of the Bahamas. San Salvador Press, Waterloo Ont.; (2000): Empire, Enslavement and Freedom in the Caribbean. Markus Wiener, Princeton NJ; (2010): Testing the Chains: Resistance to Slavery in the British West Indies. Cornell University Press, Ithaca

[cix]  Michael Craton (1986) supra.

[cx]   Ibid.

[cxi]  Ibid.

[cxii]  Michael Craton (1986) supra.; Gail Saunders (1995) supra.

[cxiii] Gail Saunders (1995) supra.; (1999) supra.

[cxiv] Ibid.

[cxv]  Ibid.

[cxvi] Michael Craton (1986) supra.

[cxvii] Ibid.

[cxviii] Ibid.

[cxix] Michael Craton and Gail Saunders (1999) supra.

[cxx]          Anthony George Dahl (1995): Literature of the Bahamas, 1774-1992: The March Towards National Identity.           University Press of America, Lanham Md

[cxxi] Ibid.

[cxxii] Gail Saunders (1995) supra.

[cxxiii] Ibid.

[cxxiv] Sandra Riley (1983): Homeward Bound: A History of the Bahama Islands to 1850 With a Definitive Study of Abaco in the American Loyalist Plantation Period. Island Research, Miami Fla/Green Turtle Cay Bahamas

[cxxv] Gail Saunders (1995) supra.

[cxxvi] Ibid.

[cxxvii]       Ibid.

[cxxviii]         Ibid.

[cxxix] Ibid.

[cxxx] Ibid.

[cxxxi]   Cited in Riley (1980) supra.

[cxxxii]         Riley (1980) supra.

[cxxxiii]           Ibid.

[cxxxiv]         Ibid.

[cxxxv]       Ibid.

[cxxxvi]         Ibid.

[cxxxvii]                                                             L. D. Powels (1888): The Land of the Pink Pearl: Or Recollections of Life in the Bahamas. S. Low, Marston, Searle and Rivington, London

[cxxxviii]      Hillary McD Beckles (n/d): “Slavery Was a Long, Long Time Ago: Remembrance, Reconciliation and the Reparations Discourse in the Caribbean” In the Ariel website. Available online <http://136.159.200.45/index.php/ariel/article/view/31189/25274 Accessed 12 October, 2020>

[cxxxix]       Ibid.

[cxl]   Hillary Beckles (2020): “Emancipation Day Message From Professor Sir Hillary Beckles Chairman of the CARICOM Reparations Commission” In the Barnacle New Website. Available online <https://www.thebarnaclenews.com/emancipation-day-message-from-professor-sir-hilary-beckles-chairman-of-the-caricom-reparations-commission/ Accessed 12 October, 2020