Tracing Legal Transplantation within British West Indian Plantation Societies 1500-1800s
The majority of the territories of the British West Indies (Caribbean) have succeeded in the inheritance of English law, the most primary being common law and statutory laws usually modelled upon the English archetype. A simple glance at the West Indian Law Reports will reveal this mirroring legal identity to that of English law. English legal history therefore defines the legal history of most of the inheritor colonies and furthermore sets the parameters in which these jurisdictions operate. English legal history is paradigmatic of the British West Indies legal history as there exists considerable amplitude of their legal history to that of the motherland not just through the mirroring but also in terms of the ‘working law’.
The proliferation of Common Law in the Caribbean is an aspect of both English legal history and Caribbean legal history. It is indeed important to determine how this lineage of mirroring of laws began, how it developed and was subsequently executed. Part 1 of the thesis starts with tracing the start of European presence, colonisation and contestation in the West Indies. It further introduces the pertinent British West Indian Islands to this research and the origins of their colonial ties to Great Britain. It also examines the introduction of Imperial laws and their transplantation within the relevant island colonies, the issue of mixed legal systems and forms of early governance delegated by the Imperial Parliament. This first part serves as the basis of how transplantation began on a constitutional level prior to the genesis of the plantation societies and eventual economic boom.
The subsequent parts of the thesis focus on various aspects of transplantation, throughout the English slaveholding Empire via the progenitor Slave Code of Barbados. Part 2 therefore examines the origins of the Comprehensive Slave Codes of the British West Indies. It delves into pre-colonial English society to identify various laws and regulations adopted and adapted in the colonies and argues that transplantation was central to development within colonial legislation. Transplantation was not just limited to the English colonies. Legal borrowing occurred among the various European powers also.
What these inter and intra-connectivity of laws meant for the region’s development is the essence of this chapter; it raises questions of jurisdictional boundaries and the relationship between colonial and metropolitan laws. Case law as a guideline proved to be particularly obscure, possibly purposely convoluted, and most definitely paradoxical in addressing this link thus, exacerbating the entangled bonds of centre and periphery. These murky lines unfortunately continued throughout the English Atlantic world due to the accelerating and complicated legal borrowing and transplants with the emergence of slave laws, cases and movement of persons within the English colonial Empire. However, these inconsistencies made the discussion richer as legal transplantation is not black or white but a plethora of legal issues of wider comparative international law and elements of conflict of laws.
Colonial slavery contained three interrelated aspects of law that transformed with the introduction of African slavery. Firstly, defining slaves as property, secondly, establishing forms of control over slaves, and thirdly, developing legal definitions of race, which distinguishes African slaves and their descendants from the rest of the population. Part 3 of the thesis then analyses these aspects of property, coercion and race as law to determine how these were executed and reconciled throughout the slave holding colonies, beginning with Barbados and spanning as far as Boston where West Indian slave law resonated. The extent of the slave code’s influence is revealed as one of the consequences of inter-colonial exchanges, whether this was of persons (free or not) and the knowledge and experiences they carry with them specifically in relation to the slave courts. This chapter illustrates the double transplantation that occurred within Atlantic legal history when the periphery becomes the centre.
Finally, part 4 focuses on the lead up to the end of slavery up to the fall out after the apprenticeship system failed. The research firstly looks at manumission practices and provisions within the West Indian colonies. Colonial Manumission is compared and contrasted with villeinage manumission in England, which illustrated the role of transplantation therein also. Manumission discussions also sparked issues related to amelioration, abolition and emancipation within the island colonies all of which eventually became law, effects of which trickled from one colony to another. The thesis looks at these laws and their impact on the plantation societies and the schisms created as a result more so in terms of land ownership. The plantocracy sought to turn their soon to be former slaves into what appeared as quasi serfs or villeins and henceforth the slavery system into some type of colonial serfdom with the onset of Emancipation. Worried about their property, crops and at large their continued riches, the political elite along with the planter class via the stamp of approval from Parliament attempted to stop slaves from advancing. The repercussions of the post-emancipation West Indian societies ranged far wider than anticipated, when these endeavours to prolong a free labour force unravelled and ultimately failed. The thesis ends by addressing the width and depth of these ramifications post-emancipation, by tracing the legal consequences of labour schemes, transactions, movements, transportations and stratifications therein. In addition, it looks to the metropole to identify any transplants or legal borrowings in terms of those labour schemes and other social control mechanisms they developed within that period.
The thesis explores legal historical concepts of centre and periphery whilst using the terminology of transplantation as the mechanism for movements, change and legal evolutions. Discussions relating to Empire and its colonies and the rights and issues derived therein are also prevalent.