to Slavery in the courts

Butts v. Penny

Side-by-side Transcription

A crucial English Common Law case to define African slavery, and to create mechanisms to enforce ownership and recover debts related to slave sales.  Over the following decades, the English courts became a battleground over whether people could be considered property. 


Butts v. Penny is a recognizable case for those steeped in the laws permitting slavery in the English Empire, but the archaic and legalistic terminology can make these case reports difficult for today’s readers to decipher. Including these case reports in this project with annotations can help broaden the reach of this very important case.

This case served as a precedent for legal recognition of enslaved persons as chattel, therefore it is a pivotal document to consider alongside other documents that detail the development and encouragement of a slave system. It is also representative of the role that courts and judges played in legitimating slavery and raises questions of the impartiality of courts and justice.

Further Reading

Holly Brewer, “Creating a Common Law of Slavery for England and its New World Empire,” Law & History Review 39, December 2021: .

Edward Fiddes, “Lord Mansfield and the Somersett Case” Law Quarterly Review 50 (1934): 499–511.

F.O. Shylon, Black Slaves in Britain (London 1974).

William M. Wiecek, “Somerest: Lord Mansfield and the Legitimacy of Slavery in the Anglo-American World,” University of Chicago Law Review 42 (1974): 86–146.

David Brion Davis, The Problem of Slavery in the Age of Revolution (Cornell UP: Ithaca, NY:  1975), 10.

James Oldham, “New Light on Mansfield and Slavery” Journal of British Studies 27 (1988): 45–68.

A. Leon Higginbotham, In the Matter of Color: Race and the American Legal Process I: The Colonial Period (Oxford: Oxford University Press, 1980), 323–27.

George Van Cleve, “Somerset’s Case and Its Antecedents in Imperial Perspective,” Law and History Review 24 (2006): 601–46.


Butts v. Penny, 83 Eng. Rep. 518, 519

Butts v. Penny, 84 Eng. Rep. 1011

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Different Reports of the Case:

Butts against Penny, 2 LEV. 201. (83 Eng. Rep. 518, 519)

TRIN. 29 CAR. II. IN B. R.               

TROVER for 100 Negroes, and upon Non Culp. ’twas 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 ’till next Term.

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3 KEBLE, 785.                        TRIN. 29 CAR. II. B. R.

Butts and Penny.


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.

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