reMaking Slavery in the courts
Butts v. Penny
(1677)
A foundational English Common Law case that defined slavery in England and its empire in the Americas, and to create mechanisms to enforce ownership and recover debts related to slave sales. It literally redefined some people as legally things, or “goods” as opposed to people. Over the following decades, English and colonial courts became a battleground over whether people could be considered property.
Introduction
In 1677, the case of Butts v. Penny was heard by the court of King’s Bench, the highest Common Law court. The court’s decision was technically over just a few people, between 11 and 21 Africans, and over whether they could be sued over as though they were personal property or as a “good. ” The number is in question because the “10 and one half Negroes” mentioned in the case were counted using the Spanish measure of “Piezas” which counted a child or an ill or elderly person as half a person.
The plaintiff was Thomas Butts, a former Naval officer and employee of the Royal African Company (both institutions under the direction of James, Duke of York, King Charles II’s brother). The defendant, Penny, was a plantation owner in Barbados. Butts claimed that Penny had, by not paying a debt, illegally taken possession of his property: the 11-21 enslaved persons.
Penny’s lawyer, Thompson, argued that there could be no “Property in the Person of a Man sufficient to maintain Trover,” or that a person could not be sued over via a writ that applied to things. He argued that no one could have more power over such people under English law than that allowed under ancient feudal law, which tied people to land. People were not simple property to be recovered (or their value recovered) in such a way.
The four justices on the King’s Bench, presided over by Chief Justice Richard Rainsford, rejected Thompson’s argument, and decided in favor of the plaintiff, Thomas Butts. The court’s decision, reflected in the two court reports below, awarded him trover (the purported value of the 11-21 African men women and children) meaning that the court held that what we would now call a Tort (what they then called a “trespass”) could apply not only to things, but to people. This case, in which the King was directly involved, set the groundwork in the English Empire to treat enslaved persons as goods who be the subject of powerful writs. After two efforts to pass an imperial slave code via Parliament had failed, Charles II used the courts to bypass parliament.
The cases are somewhat vague but still very interesting. As you read these case reports, consider these questions: What rationale was used to define the enslaved persons as property? How might this decision correlate with the growth of slavery as an institution? The Royal African Company, whose Governor was James, Duke of York, brother to the king, had monopoly power over England’s slave trade. So, when it refers to “merchants,” who did they work for? Why not name them outright? Are there any logical limits in this decision?
Holly Brewer
Lauren Michalak
Further Reading
- Holly Brewer, “Creating a Common Law of Slavery for England and its New World Empire.” Law and History Review, 2021 39(4), 765-834. doi:10.1017/S0738248021000407
- 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), esp.ch. 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.
Sources
- “Butts and Penny” in Joseph Keble, Reports in the Court of Kings Bench at Westminster, From the XII to the XXX Year of the Reign of our late Soveraign Lord King Charles II, Vol. 3. (London: Printed by W. Rawlins, S. Roycroft, and M. Flesher Assigns of Richard and Edward Atkins Esquires, 1685), 785.
- Document images courtesy of the University of Virginia Special Collections.
- Transcriptions by Michael Becker, Boone Ayala, and Dylan Bails.
- “Butts Against Penny” in Creswell Levinz, The Reports of Sir Creswell Levinz, Knight Late of the Judges in the Court of Common-Pleas at Westminster; In French and English.. , trans. Sarjeant Salkeld and others, Vol. 2, 2nd ed. (London: E. and R. Nutt and R. Gosling, 1722), 201.
- Document images courtesy of the University of Virginia Special Collections.
- Transcriptions by Michael Becker, Boone Ayala, and Dylan Bails.
Cite this page
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Levinz Butts v Penny
THE
REPORTS
OF
Sir Creswell Levinz, Knight
Late One of the JUDGES in the
Court of Common-Pleas
At WESTMINSTER;
In FRENCH and ENGLISH.
CONTAINING
CASES Heard and Determin’d in the Court of
KING’S BENCH, during the Time that Sir Matthew Hale, Sir
Richard Rainsford, and Sir William Scroggs were Chief Justices
there; as also of certain CASES in other Courts at Westminster,
during that Time.
Translated into ENGLISH by Mr. Serjeant SALKELD, and
others of the Middle-Temple.
With two TABLES; the one of the Names of the CASES, and
the other of the Principal Matters contain’d therein.
The SECOND EDITION Carefully Corrected; with many Thou-
sand References to the REPORTS, never before Printed.
PART II.
In the SAVOY:
Printed by E. and R. NUTT and R. GOSLING, (Assigns of Edward Sayer Esq;)
for D. Browne, W. Nears, and F. Clay without Temple-Bar, J. Walthoe in
the Temple-Cloysters, T. Osborne in Grays-Inn, R. Gosling at the Middle-Temple-
Gate, and T. Woodward at the Half-Moon against St. Dunstan‘s Church in
Fleetstreet. MDCCXXII.
[English]
Butts against Penny.
{Trover for Negroes.}
TROVER for 100 Negroes, and
upon Non Culp. ’twas found by spe-
cial Verdict, that the Negroes were In-
fidels, and the Subjects of an Infidel Prince,
and are usually bought and sold in Ame-
rica as Merchandise, by the Custom of
Merchants, and that the Plaintiff bought
these and was in Possession of them ’till
the Defendant took them. And Thomp-
son 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 usu-
ally bought and sold among Merchants,
as Merchandise, and also being Infidels,
there might be a Property in them suf-
ficient 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.
[Law French]
Butts versus Penny. {S. C. 3 Keb. 785.}
Hill ult. Rot. 1116. {Vid. 3 Lev. 336, 337.}
{Trover gift de Negroes. Vid. 2 Salk. 666, 667. contra.}
TROVER put 100 Negroes, &
sur Non Culp. Special Verdict
que les Negroes fueront Infidels,
subjects al un Infidel Prince, & use
d’estre empt & vend en America come
Merchandize per le custom inter les
Merchants, & que le Plaintiff ad
eur empt & fuit en possession d’eux,
hors de que possession le Defendant
eur prist. Et fuit argue per Tomp-
son, que nul property peut estre en
le person d’un home, sur que de
maintainer Trover, & cite Co. Lit.
116. nul property peut estre en Dil-
lains nisi per compact ou conquest.
Mes le Court tient que ils esteant
usualment empt & vend inter Mer-
chants, come Merchandize, & esteant
Infidels, un property peut estre en
eux sufficient a maintainer l’action.
Et donc Judgment pur le Plaintiff
nisi causa cest Term. Mes al fin del
Term sur le prier del Attorney Ge-
neral, d`estre ousterment oye en le case,
jour fuit done al prox’ Term.
{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.}
Keble Butts v Penny
REPORTS
IN THE
Court of Kings Bench
AT
WESTMINSTER,
FROM
The XII to the XXX year of the Reign of our late
Soveraign Lord
King Charles II.
Taken by Jos. Keble of Greys-Inn Esquire.
The Third Part:
Containing the 24th 25, 26, 27, 28 & 29th Years.
LONDON,
Printed by W. Rawlins, S. Roycroft and M. Flesher
Assigns of Richard and Edward Atkins Esquires.
For Thomas Dring, Charles Harper, Samuel Keble, and
William Freeman in Fleetstreet. MDCLXXXV.
Butts and Penny. {S. C. 2. Lic. 202.}
{(35) Trover. for negroes. R. Const. 2. Ld. Raym. 1274.}
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 Admini-
strator untill they become Christians; and thereby they are In-
franchsied: And Judgment for the Plaintiff, Nisi, and it li-
eth of moety or third part against any Stranger, albeit not
against the other Copartners. {Carth. 396}
References
Collections
Tags
- Holly Brewer, “Creating a Common Law of Slavery for England and its New World Empire.” Law and History Review, 2021 39(4), 765-834. doi:10.1017/S0738248021000407
- 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), esp.ch. 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
- Transcription credit: Holly Brewer, Lauren Michalak, Hannah Nolan.