Slavery in the courts
Butts v. Penny (1677)
One of the first cases dealing with African slavery, Butts v. Penny would begin a long line of cases on this matter, as the English courts became a battleground.
Introduction by Holly Brewer
In 1677, the case of Butts v. Penny came before the King’s Bench and set precedent in English Common Law for holding people—in this case between 12 and 21 enslaved Africans—as personal property, or chattel. The case involved a dispute between Thomas Butts, a former Naval officer and employee of the Royal Africa Company (both institutions under the direction of James, Duke of York, King Charles II’s brother), and a plantation owner in Barbados, Penny. Butts claimed that Penny had illegally taken possession of his property, the 12-21 enslaved persons. Penny argued that there could be no possession of people as property, therefore his action in detaining the enslaved persons was more akin to the feudal practice of villeinage, which tied people to land, thereby making them immovable as simple property. The court’s decision, reflected in the two court reports below, found for Butts and awarded him trover, or compensation, and set the groundwork in the English Empire to treat enslaved persons as simple, movable property.
As you read these case reports, what rationale was used to deem the enslaved persons as property? Why do you think the courts defer to local colonial custom? How might this decision correlate with the growth of slavery as an institution? Are there any limits included in this decision?
Information
Further Reading
J. Oldham, English Common Law in the Age of Mansfield (Chapel Hill, 2004).
Citation
Different Reports of the Case:
Butts v. Penny, 83 Eng. Rep. 518, 519
TRIN. 29 CAR. II. IN B. R. 2 LEV. 201.
BUTTS against PENNY.
[Disapproved, Forbes v. Cochrane, 1823, 3 Dowl.’& Ry. 721; 2 B. & C. 448.]
Trover for negroes. S. C. 3 Keb. 785. Vid. 3 Lev. 336, 337. Vid. 2 Salk. 666, 667,
contra. See 5 Mod. 182, 186, 187. Raym. 16. 3 Lev. 336, 337. Cro. Jac. 262, 463.
Cro. Car. 19, 391, 545. Mar. 12. Cro. El. 126. Hob. 283. 1 Com. Dig. 219.
1 Salk. 556. 1 Raym. 250. 5 Mod. 375. 5 Com. Dig. 352. 5 Bac. Ab. 264.
Trover for 100 negroes, and upon non culp. it was found by special verdict, that the negroes were infidels, and the subjects of an infidel prince, and are usually bought and sold in America as merchandise, by the custom of merchants, and that the plaintiff bought these, and was in possession of them until the defendant took them. And Thompson argued, there could be no property in the person of a man sufficient to maintain trover, and cited Co. Lit. 116. That no property could be in villains but by compact or conquest. But the Court held, that negroes being usually bought and sold among merchants, as merchandise, and also being infidels, there might be a property in them sufficient to maintain trover, and gave judgment for the plaintiff, nisi causa, this term ; and at the end of the term, upon the prayer of the Attorney-General to be heard as to this matter, day was given until next term.
3 KEBLE, 785. TRIN. 29 CAR. II. B. R.
35. BUTTS AND PENNY.
Trover.
Special verdict in trover of 10 negroes and a half find them usually bought and sold in India, and if this were sufficient property, or conversion, was the question. And Thomson, on 1 Inst. 116, for the defendant, said here could be no property in the plaintiff more than in villains; but per Curiam, they are by usage tanquam bona, and go to administrator untill they become Christians; and thereby they are infranchised: and judgment for the plaintiff, nisi, and it lieth of moety or third part against any stranger, albeit not against the other copartners.
EARLY ACCESS: Transcription is under editorial review and may contain errors.
Please do not cite or otherwise reproduce without permission.