Seventeenth-Century Jurists, Roman Law, and the Law of Slavery - Symposium on the Law of Slavery: Comparative Law and Slavery

Chicago-Kent Law Review Volume 68 Issue 3 Symposium on the Law of Slavery: Comparative Law and Slavery Article 13 June 1993 Seventeenth-Century Jurists, Roman Law, and the Law of Slavery - Symposium on the Law of Slavery: Comparative Law and Slavery Alan Watson Follow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreview Part of the Law Commons Recommended Citation Alan Watson, Seventeenth-Century Jurists, Roman Law, and the Law of Slavery - Symposium on the Law of Slavery: Comparative Law and Slavery, 68 Chi.-Kent L. Rev. 1343 (1992). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol68/iss3/13 This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact . SEVENTEENTH-CENTURY JURISTS, ROMAN LAW, AND THE LAW OF SLAVERY ALAN WATSON* Issues of slavery and slave law were of considerable theoretical interest to continental European jurists in the seventeenth century. They lived in a different world from American colonists of European descent because they had no direct experience of slave holding and no immediate financial involvement. Their interest stemmed from the fact that their education was in Roman law; and not only was Roman law the most revered system, but slaves were prominent in it. For the jurists' attitudes we must remember that, at least in theory, there were no slaves in territories such as the Dutch Republic, Germany, or France. (What slaves there were were the innocuous domestic servants of colonists back for a visit.) The writings of the jurists had implications for slavery in the Americas partly because their views might be translated into actual law, but mainly because respect for these jurists could influence contemporary and later opinion on theoretical issues of the morality-or otherwise-of slave holding. This theoretical opinion could then have practical implications. We must not forget that since these jurists wrote mainly in Latin, a language which a large proportion of the educated understood, their ideas could have an impact across local, national and continental boundaries. In this paper I will not expressly consider the impact of juristic writing on slavery in the Americas. Rather, I wish to consider aspects of the intellectual "baggage" that some jurists of the seventeenth century themselves brought to the task of framing their opinions. I Scholars do not develop their theories just as they like, in isolation: they are also bound by what they know and what they do not know, by what they have read and what they cannot read, by the intellectual cultural tradition in which they work, and by the outside world. 2 I will not stress the idiosyncracies * Ernest P. Rogers Professor of Law, University of Georgia; M.A., LL.B. (Glas.); M.A., D.Phil., D.C.L. (Oxon.); LL.D. (Edin.); LL.D. honoris causa (Glas.). 1. This same baggage is found in 18th century writers as well. See, e.g., JOHANN GOTTLIEB HEINECCIUS, ELEMENTA JURIS NATURAE ET GENTIUM [ELEMENTS OF THE LAW OF NATURE AND OF NATIONS] (1725). 2. See, e.g., DAVID DAUBE, Fashionsand Idiosyncracies in the Exposition of the Roman Law of Property, in 2 COLLECTED STUDIES IN ROMAN LAW 1325 (David Cohen & Dieter Simon eds., 1991). CHICAGO-KENT LAW REVIEW [Vol. 68:1343 of individuals, but what the jurists of the time had in common, as part of their heritage. A prime purpose of this paper is, in fact, to alert scholars of American slavery to this common, European, legal heritage. I. ROMANIST IDEOLOGY Scholars who rise to the top of their profession usually have a fondness for their discipline. They are even tempted to exaggerate its virtues, and downplay its weaknesses. Thus, at the outset of the first edition of his Institutions of the Law of Scotland, Lord Stair writes: "The Law of Scotland, in its Nearness to Equity, plainness and facility in its Customes, Tenors and Forms, and in its celerity and dispatch in the Administration and Execution of it, may be well parallelled with the best Law in Christendom." ' 3 And William Blackstone's complacency in his admiration for the law of England, as set out in the first edition of his Commentaries on the Law of England,4 is notorious.5 Nevertheless, the primary training of the continental jurists with whom we are concerned was in Roman law, and their high esteem of it is a commonplace. Thus, Hugo Grotius of Holland states: When no general written laws, privileges, by-laws or customs were found touching the matter in hand, the judges were from times of old admonished by oath to follow the path of reason according to their knowledge and discretion. But since the Roman laws, particularly as codified under Justinian, were considered by men of understanding to be full of wisdom and equity, these were first received as patterns of 6 wisdom and equity and in course of time by custom as law. And the Frisian, Ulrich Huber, proclaims: But because the laws of the State of Rome spread with her ancient empire through the whole of Europe, and because they surpass all other known systems of law in sagacity and justice, Roman law kept its force among almost all Christian peoples, so much so that it has been adopted by many of them; not, however, without every free nation taking away or adding what seemed to it good. Among some nations also it has no binding power, but rather serves as a pattern of 7 wisdom and legality, without the judges being actually bound by it. This praise for Roman law is especially significant because both these 3. 1 JAMES DALRYMPLE, LORD STAIR, INSTITUTIONS OF THE LAW OF SCOTLAND 1.1.15 (Edinburgh 1681). 4. 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAW OF ENGLAND (1765-1769). 5. See especially JEREMY BENTHAM, A FRAGMENT ON GOVERNMENT (1776). 6. HUGO GROTIUS, INLEIDING TOT DE HOLLANDSCHE RECHTSGELEERTHEYD [INTRODUC- TION TO THE JURISPRUDENCE OF HOLLAND] 1.2.22 (1631). This edition was written between 1619 and 1621, while Grotius was in prison. 7. 1 ULRICH HUBER, HEEDENSDAEGSE RECHTSGELEERTHEYT [CONTEMPORARY JURISPRU- DENCE] 1.2.24 (1686). 19931 SEVENTEENTH-CENTUR Y JURISTS quotations are taken from treatises in which the jurists were expounding their own local law. Their admiration was for Roman private law in general, not just for one branch of it. The Romans were among the world's most prolific slave users, and had a highly developed law of slavery. Admiration for Roman law in general induced later jurists to be less critical of Roman slave law. I deliberately say "to be less critical," not "to praise." Johannes Voet, another scholar from Holland, provides a good example of what I mean in the first edition of his Commentary on Justinian'sDigest., Because he was producing a commentary that in fact was geared towards the law of his own time, slave law was naturally (...truncated)