Introduction: talking empire
- Top of page
- Introduction: talking empire
- Speech, law and space
- Taking oaths
- Giving evidence
- Closing words?
In 1787 the abolitionist activist Quobna Ottobah Cugoano (1999 , 64) retold a story of imperial conquest he had borrowed from William Robertson’s History of America (1777). On being presented with a Christian breviary ‘The Inca opened it eagerly, and turning over the leaves, lifted it to his ear: This, says he, is silent; it tells me nothing; and [he] threw it with disdain to the ground.’ The Inca, Cugoano reported, was then murderously attacked by the Spanish for this desecration of a sacred book.
Parallel ideas of the power of the written or printed word, or of other forms of inscription such as maps or statistical surveys, and their transformations of the oral cultures of indigenous and transplanted peoples within Africa, Asia and the Americas as part of the making of empires are well established within historical and geographical work on the early modern world. There are certainly accounts that insist on the imperialising power of such marks on paper (Ackerman 2008; Cohn 1996; Mignolo 2003). These are countered, of course, by those who rightly emphasise determined resistance through oral and performative practices under the most difficult of circumstances, including slavery in the Americas (Brown 2008; Thornton 1998). In between these positions there are attempts to reveal the relationships between indigenous forms of communication, both oral and inscribed or materialised in various ways, and the European world of script and print (Bayly 1996; Burnett 2000; Ogborn 2007; Raj 2007; Urton 2009). It is clear that Cugoano was demonstrating that he and others like him had bridged the gulf, learned to read, learned to write and turned that power against the claims of those who would have enslaved them (Gates 1988; Potkay and Burr 1995). Yet it is also the case, as Susan Scott Parrish has argued in her account of the making of natural historical knowledge in the colonial British Atlantic world as an interaction between indigenous people, enslaved Africans and Europeans, that ‘It was the talking woods more than the “Talking Book” that was the “ur-trope” of the Anglo-African experience’ (2006, 260). It was the oral transmission of knowledge of flora and fauna that ‘offered some measure of efficacy and continuity in the formation of African identity’ (also see Lambert 2009).
What all these accounts underplay, however, is the extent to which the European culture of empire was itself an oral culture too. As Sandra Gustafson (2000) and Carolyn Eastman (2009) have shown, the imperial and colonial encounter in North America, and subsequent nation-building, served to ‘make verbal forms into primary markers of cultural difference’ (Gustafson 2000, xv) and created worlds in which oratory and speechifying both mirrored and created new social orders. Empire’s orality was present in speeches, proclamations, sermons, debates, and all sorts of declarations and conversations. However, undertaking historical work on the spoken word is problematic. Back beyond the reach of oral history, the only access that there is to speech is through the texts and images that record it in some way or show how talk was organised. Yet if the focus is not on precisely what was said, or even on sociolinguistic questions about how it was said (for example, Cassidy and Le Page 1980; Lalla and D’Costa 1990), but on the conditions of speaking itself in particular contexts, then the question of what the sources can tell us becomes less of an issue. The concern then becomes one of reconstructing the rules governing forms of speech – debates, sermons, proclamations, polite conversations – rather than particular instances of speaking, and those rules were certainly outlined and debated in writing (Goffman 1981; Gustafson 2000). Moreover, those forms of speech were ones that were increasingly, and for more and more people, combined with forms of script and print, particularly through the processes of imperialism and colonisation (Bayly 1988; Monaghan 2005). Therefore, it is not the particular claims of orality that are of interest, but understanding the relationships between speech, script and print, or between the practices of speaking, writing and printing. Archival research on communicative practice (Fox 2000; Love 2002) and Jacques Derrida’s (1976) thorough deconstruction of the logocentric and ethnocentric assumptions underpinning the metaphysical chain that links, in succession, thought, speech and phonetic writing, both insist that the relationships established between these practices are historically and geographically contingent, and are embedded in contextual relationships of power.
Attention to the contexts and practicalities of forms of speech and their relationships to texts means considering the historical geographies of the spoken word. As work on the practices of writing, printing and reading has shown, these processes of text-making and use are embodied, material practices that have very varied histories and geographies (Johns 1998; Ogborn and Withers 2010; Secord 2000). Similar work can be undertaken on the spoken word, understanding it as a set of historically and geographically differentiated embodied practices to which different people had unequal access, and which were both shaped by and shaped the spaces in which they took place (Braddick 2009; Gustafson 2000; Livingstone 2007). Indeed, perhaps even more than work on reading and writing, this focus on speaking opens up for historical geography a fuller engagement with the possibilities suggested by a move to ‘practice’ (Thrift 2008). For Michel de Certeau (1984), for example, of the three realms of practice in everyday life that he investigated, it was speaking rather than walking or cooking that offered the model for the forms of active appropriation that he celebrated. Also, since speaking is simultaneously, and indivisibly, linguistic and embodied, a matter of both ‘performance’ and ‘representation’, understanding speech practices in the past or the present demands a continued rethinking of those distinctions so as to acknowledge representations as ‘actions themselves’ in the on-going making up of the world (Dewsbury et al. 2002, 438; Lorimer 2005; Ogborn 2009).
Considering the spoken word in terms of practice points towards arenas within which are built relatively formal conventions for speech that might be adopted, ignored, refused or contested. Both the establishing of conventions and the challenges to them produce the sources that can be interpreted (see Gowing 1999 and Secord 2007, who both show close attention to space, be it city doorsteps or laboratory tea rooms). In what follows I want to pursue this by considering the forms of talk that were at work within the law in the British Atlantic world – particularly the taking of oaths and the giving of evidence – and to examine the ways in which they were instantiated and contested within Britain’s colonies in the Caribbean. This means considering the power of speech as its historically and geographically specific forms worked to simultaneously make up and unmake the radically unequal social relations of slavery in the plantation societies of Barbados and Jamaica.
Speech, law and space
- Top of page
- Introduction: talking empire
- Speech, law and space
- Taking oaths
- Giving evidence
- Closing words?
In early modern England the law was a domain within which the spoken word voiced in particular ways by specific people in defined spaces was of fundamental importance. Oath-bound judges and juries were at the heart of the legal system (Spurr 2001). They were part of formal procedures in which some texts were only effective if they were read out loud (Love 2002). In criminal trials, jurors heard testimony on oath from suspects and witnesses who were increasingly bound by legislation governing subpoena procedures to appear before the court and for whom perjury was a statutory crime (Shapiro 2000). This was a very localised historical geography of speech. Yet the law was also an arena of practice that structured the social and political relationships of the British Atlantic world. English ‘liberties’ were the foundation of both empire and identity, and they were guaranteed by law. In particular, liberty at home and overseas ‘rested on two institutions for determining and making law: juries and Parliament’ (Greene 2010a, 3). Both of these depended in turn on speech practices – of hearing evidence and engaging in debate – to preserve the legal rights of English people wherever they were. Yet these liberties were exclusionary ones. While English settlers in the Atlantic world claimed these rights, they denied them to indigenous and transplanted peoples.
This produced a particular geography of law and empire. Eliga Gould (2003) argues that while the conventions of the European law of nations (governing questions of war and peace) and the more specific provisions of the English common law (governing colonial societies) were understood as overarching frameworks for Atlantic governance, this was accompanied by the recognition of significant differences between ‘zones of law’– in Europe and the settler colonies – and ‘zones of violence’– in the terrestrial and oceanic imperial peripheries. This made possible significant legal differences between places: the continuation of warfare in the Caribbean among nations which had made peace in Europe (or vice versa); the legal foundation of chattel slavery in American plantation societies but not in Britain; and the coexistence of multiple legal jurisdictions – including those of African polities and American maroon communities of former slaves – which were accepted by English traders, settlers and imperial administrators (Benton 2002). Indeed, Lauren Benton (2010) has argued that the relationships of sovereignty and space in Atlantic empires were so complex as to exceed this simple division of ‘law’ and ‘violence’ through a shifting and uneven cartography of corridors, enclaves and anomalous zones.
Establishing rules, rights, powers and obligations within this differentiated legal geography mattered to those on either side of the Atlantic who took up the task of colonial governance. Barbados and Jamaica, like the other American settler colonies, insisted on establishing representative assemblies with law-making powers, and in tension with metropolitan authorities (Greene 2010b). In Jamaica, the 1680s saw the assembly’s successful resistance to the Lords of Trade and Plantations’ attempts to govern them as Ireland was governed, with a set of laws produced in and imposed from England (Amussen 2007). Against the argument that Jamaica, having been taken in 1655 by military force from the Spanish, was a conquered country, the assembly established its right to make laws (although they had to be ratified by the English monarch) on the basis that ‘though it was a Conquered Country, yet they are not a Conquered People, But descended from the Conquerors, who were Englishmen.’1 Indeed, as Englishmen (albeit transplanted ones), they argued that they should
have a deliberative power in the making of laws; the negative and barely resolving power being not according to the rights of Englishmen, and practised no where but in those commonwealths where aristocracy prevails.2
Active local debate and decisionmaking were central to both the practicalities of colonial legislative practice and to the forms of identity that bound the English empire of liberty in the Atlantic world together and differentiated it from other empires (Greene 1998 2010a).
Within this empire, colonial law-making was governed by two principles (Bilder 2004). First, that of geographical appropriateness. Laws had to be suited to the place being governed, and therefore colonial law could differ from English law. But, second, as English colonies the laws of those places should not be ‘repugnant’ to English law. Thus while difference was acceptable, some differences (those judged ‘repugnant’) were not. This was the basis of the ‘transatlantic constitution’: an ongoing debate between colonies and the imperial metropolis – in speech, script and print – over legal geography that tried to establish the basis for colonial law in general and colonial laws in particular. In Barbados and Jamaica, questions of repugnancy were particularly acute when it came to slavery. Planters wanted to ensure that their legal title over property in people was secure, even when this was not guaranteed, and many argued was actively denied, by English law. They wanted to ensure that there could be a significant differentiation of legal subjectivities on those islands, with very different rights being accorded to black and white, enslaved and free. On Barbados, the 1688 Act for the Governing of Negroes made the case for legal differentiation between people and between the Caribbean colonies and the metropolis. The assembly argued that
the said Negroes and other Slaves brought unto the People of this Island … are of barbarous, wild and savage Natures, and such as renders them wholly unqualified, to be governed by the Laws, Customs and Practices of our Nations.
They had to make other laws to ‘restrain the Disorders, Rapines and Inhumanities to which they are naturally prone and inclined’, to encourage them to good behaviour, and to offer them protection ‘from the Cruelties and Insolencies of themselves or other ill-tempered People or Owners’.3 In turn, the Jamaican legislators adapted its slave laws from Barbados, and were even more careful to argue that these new laws were both necessary for their specific circumstances and compatible with English law, although ‘there being in all the body of that Law noe perfect track to guide us where to walk Nor any expert rule sett us how to governe such Slaves as wee have’ (Jamaica’s 1664 slave act quoted in Gaspar 2001, 90).
There was, therefore, a transatlantic debate over legal geography which means that the law needs to be understood at very different, albeit connected, scales from testimony given in the witness box to the Atlantic’s differentiated legal landscape. Moreover, the significance of law to the governance of colonies, and to the identity of colonists, meant that legal practice was a contested field, both locally and across the ocean. In what follows I want to demonstrate the processes whereby a differentiated set of legal subjects were made within this legal geography through the spoken word, examining how oath-taking and evidence-giving became an important ground in the formation of those who were to be subject to the law in different and very unequal ways. What becomes apparent is that in this process of the constant and ongoing production and reproduction of these legal subjectivities through speech, gaps and contradictions were also opened up. The claims of race, nation, liberty, religion, gender and property intersected in ways that certainly drew strong distinctions between different sorts of legal subjects. However, when questions about the law were part of a transatlantic discussion over colonial rule, these multiple axes also complicated the ways in which the distinctions between people could be drawn, and even undermined them.
- Top of page
- Introduction: talking empire
- Speech, law and space
- Taking oaths
- Giving evidence
- Closing words?
The practices of government and law in 17th- and 18th-century Barbados and Jamaica were produced through and reproduced the social relations of race, gender, property and liberty. This was enacted through the spoken word, but it was also dependent on it as more than just words. For example, members of the islands’ assemblies were white, Protestant, male, free and propertied. But while these were necessary qualifications, they were not sufficient ones. Assemblymen needed to swear a series of oaths before they could take office. After the restoration of Charles II, they had to swear the oaths of allegiance and supremacy required of every office-holder in England and the colonies, affirming their belief that the monarch was the head of both church and state. These oaths meant giving their solemn word to reject any claims that other (Stuart) monarchs and other (Roman Catholic) churches might have. The Barbadian legislation prescribed that this was to take place in person ‘in publick and open Court,’ and that those taking the oath must declare ‘that there is not any Transubstantiation in the Sacrament of the Lord’s Supper, or in the Elements of Bread and Wine’.4 These oaths also had to be sworn by any ‘stranger’ applying for a ‘Pattent for Naturalization’ in Jamaica whereby they might ‘enjoy the immunities and Privileges of this Island in as ample manner as any natural born Subject’.5 In addition, Jamaican assemblymen had to swear an oath that they had sufficient property to qualify for office, and the governor and council of Barbados had to swear one before they could judge property cases in the courts of error and equity.6 On the basis of contemporary ideas about who could effectively give their word – free, white gentlemen – such oaths bound together the social relations of a slave society and the public roles within its state apparatus to create a set of legal subjectivities which were at once materially embodied and linguistically constructed (Braddick 2002; Shapin 1994; Shapiro 2000). These oaths were of sufficient significance that one had to be instituted in 1692 to quell the ‘Doubts and Scruples … touching the authority of the [Barbados] Council to sit and judge’ in matters of equity, and the oath guaranteeing that Jamaican assemblymen had sufficient property needed to be rewritten in 1760 to address the ‘many Doubts’ that had arisen about its wording.7
These oaths were, therefore, part of the considerable armoury of oath-taking that underpinned government and law in the Caribbean and, along with colonial legislation, constituted different sorts of legal subjects on the islands. This provided a continuity of practice with the English legal and governmental apparatus from which the Caribbean versions derived some of their legitimacy and some guarantees against corruption and mismanagement, or at least a sense of accountability (Spurr 2001). Oaths were of undoubted importance. On the occasion of the arrival of a new governor to the island in 1732, a contributor to the Barbados Gazette pointedly argued that oaths were used in ‘all civilis’d Countries and Nations’, in order to
more firmly bind the Takers to declare the Truth, or to perform the Thing thereby promised to be done, for the Fear of offending invisible Powers, or the Dread of subjecting themselves to the Penalty which the Laws of the Society annexed to the Crime of swearing falsely.
He used his reading of Coke, Puffendorf, Cicero, Machiavelli and others to remind his fellow islanders, and those who governed them, of ‘the binding Nature of an Oath’.8
A subsequent contributor to the same newspaper reinforced the point by informing readers that the British king’s coronation oath obliged him to provide officers for the execution of justice who then spoke in the king’s name the words the author claimed were at the head of the Magna Carta: ‘WE WILL NOT SELL JUSTICE, WE WILL NOT DENY JUSTICE, WE WILL NOT DELAY JUSTICE TO ANY ONE’.9 He hoped that such oaths, sworn by magistrates along with the oaths of supremacy and allegiance, might be ‘set up in Capital Letters’ in all court rooms, keeping to their duty judges ‘in a distant Colony’ who cannot be expected to ‘have the same great Talents and Endowments which are generally seen in those of our Mother-Country’. Oath-taking was also fundamental to the jury trial, ‘a very ancient Institution, [which] … has been continued down thro’ a Succession of Ages as one of the greatest Privileges of Englishmen’.10 Both judges and jurymen had to have their oaths administered by the correct authorities in the proper wording in open court. Witnesses were also to give their evidence on oath.11 Such oaths were to be sworn on the Christian bible to bring internal moral force, as well as external legal pressure, to bear. The author quoted Archbishop Tillotson that perjury is ‘Treason against human Society, subverting at once the Foundations of public Peace and Justice, and the private Security of every Man’s Life and Fortune.’12
Oaths and associated forms of giving one’s word were also central to the legal and governmental regulations that underpinned the doing of business on and with the islands. Oaths might be used to bridge the Atlantic Ocean. In 1651 the Barbados assembly repealed legislation relating to Royalist oaths and enacted that anyone ‘that expects benefits from the Courts of Justice’ of Barbados, and anyone in public office, was to take the ‘Engagement’, an oath accepting the sovereignty of Cromwell’s Commonwealth.13 Francis Hanson, in the preface to the first printed edition of the laws of Jamaica in 1683, recommended that letters of attorney should be signed by those who travelled with them to the island so that they could ‘prove the same viva voce, which being recorded there, is good though the witnesses die or return’.14 Barbadian courts were to accept as sufficient in law documents ‘proved on Oath’ under the seal of the lord mayor of London, or the mayor of any other city or town-corporate.15 Persons wishing to leave either island had to
bring one or more of good Credit to make affadavit before a Justice of the Peace, that he hath known him or her to go by that Name, for one Year, or so long as he or she hath lived in the Island.16
Their name could then be put up in the Secretary’s Office for 21 days before departure. Any slaves leaving the islands had to have a ticket signed by the governor after their owners had made an oath of ownership before a Justice of the Peace (JP).17 Elsewhere, those responsible for the activities and practices surrounding property ownership did so on oath. The clerks in Barbadian courts had to take an oath before a judge ‘for his true and honest dealing’.18 Jamaican land surveyors were ‘duly sworn to do Justice in that behalf’ and any encroachments were to be determined by a JP and two freeholders on oath.19 Indeed, the islands’ written records were themselves guaranteed by oaths. The ‘Officer of each publick Office of Record in the Island’ of Jamaica was charged with the proper preservation of the records in his care, having them (where damaged) properly bound and carefully and securely kept. Where transcriptions were made, the record keepers were to give a specific oath before the chief justice of the island that these were ‘true and exact copies of the original records’.20
These were the words that the white, propertied, free and predominantly male members of this slave society said, in public, amongst themselves. Some people found a partial inclusion. Quakers, for example, were able to swear a different oath to allow them to secure their property, but this did not qualify them to give evidence in criminal trials, serve on juries, hold public office or open schools.21 Others were categorically excluded. Women could own property but could not hold public office. In 1708 the Jamaican assembly passed a motion that ‘no Jew, mulatto, negro, or Indian, shall have any vote at any election of members to serve in any assembly of this island’.22 A 1711 law also excluded them from being ‘capable to officiate or be employed to write in or for any of the … Offices’ of government in the island.23 This was part of a differentiation of legal and political subjectivities on the basis of race, gender, liberty, religion and property. Similarly, the Barbadian assembly ruled in 1709 and 1720 that
no Person whatsoever shall be admitted as a Freeholder [and therefore able to vote for or sit in the assembly], or an Evidence in any Case whatsoever, whose original Extraction shall be proved to have been from a Negro, except only on the Trial of Negroes, and other Slaves.
This clause was to be read out twice a year in all the island’s parish churches.24
Oaths were embodied, localised and particularised verbal performances that enacted power-laden identities and transformed social relationships (Spurr 2001). They could only be spoken by certain sorts of people – predominantly free, white, Anglican, propertied men – in order to enable those people to, for example, hold offices, guarantee statements or transfer property. They were embodied and localised in that for them to be meaningful they had to be spoken by these people in the right places, with the right audience and the right accompanying objects, rituals and gestures. Their meaning and force drew on familiar, albeit historically and geographically contingent, notions that speech can be taken as a direct expression of thought and intention (Derrida 1976). In terms of race and gender – which were bound tightly to religion, liberty and property – they could only issue forth from certain bodies. Some people were simply not permitted to say those words, or they had no force if they did. For those who could do so, these oaths were necessary because they had to be spoken for the social attributes of freedom, masculinity, whiteness and property-holding to be turned into active social relations (Austin 1965). Without swearing the right oath in the right place at the right time, the processes of institutionalisation that were both intensely local and broadly transatlantic would not take place. This was certainly a process by which privilege was consolidated and legitimated, even if only to the privileged themselves. However, it was never a completely clear-cut set of exclusions based on simple and essentialised categories and identities. As I want to show, a crucial form of such talk – the right to give evidence in court – was both structured to institutionalise radically unequal social relations and was the subject of ongoing contention and transformation as the cross-cutting social relations of plantation society were debated across the Atlantic.
- Top of page
- Introduction: talking empire
- Speech, law and space
- Taking oaths
- Giving evidence
- Closing words?
As oaths demonstrate, law and governance on Britain’s Caribbean islands depended on a differentiation of legal subjectivities based, primarily, on the categories of race, freedom and religion. Within this, the enslaved have been presented in contrasting ways, as either existing in a situation of ‘bare life’ entirely beyond the law or, quite to the contrary, as interested and active participants in the islands’ legal processes (Baucom 2005; Lazarus-Black 1994; Mbembe 2003). They are perhaps better understood as having very heavily circumscribed and highly contingent legal subjectivities. On the one hand, the islands’ judicial systems – including separate courts for the free and the unfree – acted to reinforce planter power and to terrorise the enslaved rather than to knit them into a unitary society (Paton 2001). On the other hand, the enslaved were part of the public realm of law rather than just the private realm of personal property. For example, one 18th-century historian of Jamaica repeated the planters’ self-serving claim that the enslaved were better off in the Caribbean than in Africa since they were provided with food, clothing and shelter, but also with legal rights since ‘their liberty in their Own Country’ was not ‘any more than nominall or imaginary’. As he put it,
for as many of them were Subject to the Arbitrary will and Pleasure of their Kings or chief Men who disposed of them as they thought proper, and had an Absolute Power of life & Death they may justly be said to be less Slaves in our Plantations than they were in their own Country. Because in our Plantations their Masters are allowed no Power of life and Death over their Slaves, and are even Restrained from maiming or Dismembering them upon any Pretence whatever without a legall Tryall.25
It was certainly the case that the Jamaican and Barbadian assemblies passed laws enacting that wantonly killing ‘a Negro or Slave’ was judged to be a felony for the first offence and murder for the second.26 A Jamaican act of 1751 also increased the penalty for the first offence to 12 months in prison, forfeiture of property not being judged sufficient deterrent.27 Yet there was a disjuncture between what was on the statute books and the actual practice of violence and prosecution on the plantations and in the courts (Paton 2001). It was enacted that there was no legal liability if those killed were judged to be runaways, were found stealing or were ‘out of the owners Ground, Road, or Common Path, and refuseth to submit’,28 and the inadmissibility of slave evidence against all white people fatally undermined clauses in the slave laws that claimed to offer protection from mistreatment (Robertson 2010). Despite this, however, the situation of the enslaved does not simply accord with the pure absolutism of Giorgio Agamben’s (1998)Homo sacer– a figure who can be killed without it being sacrilege, execution or murder (Baucom 2005; Brown 2009; Mbembe 2003). Instead, in Jamaica killing one of the enslaved was not murder, but killing two was.
These forms of severely circumscribed legal personality were evident elsewhere in the legal system. British colonial slave laws were, in order to punish slaves for their crimes, based on the notion that the enslaved were endowed with will (Gould 2003; Goveia 1970). Yet their treatment under the law was to be different from those individuals who fell into other categories in these slave societies. The Barbados assembly argued that ‘Brutish Slaves, deserve not, for the Baseness of their Condition, to be tried by the Legal Trial of Twelve Men of their Peers or Neighbourhood.’29 The enslaved in both Barbados and Jamaica were to be tried for small crimes by the magistrates and for capital crimes by two justices and three freeholders who had sworn an oath ‘to Judge uprightly, and according to Evidence’.30 In 1788 in Jamaica these arrangements were replaced by ‘slave courts’ with three JPs and a jury of nine freeholders. The enslaved were given some limited means of holding owners and overseers to account at law.31
Jamaican courts trying slaves could order any punishment including transportation off the island and the death penalty (Paton 2001). In such trials it was ordered that ‘the Evidence of one Slave against another … shall be deemed good and sufficient Proof’, and the enslaved were to be punished, albeit more harshly than others, for perjury.32 Indeed, for some crimes, particularly those relating to resistance against the plantation system, slave evidence was crucial to prosecutions.33 It was also necessary in other circumstances. In 1750 the Jamaican assembly tried to deal with problems arising with an earlier act against piracy that ‘cannot admit the Evidence of Slaves against Slaves, without Oath’, leading to many crimes going unpunished. They enacted that these slaves’ evidence could be taken without oath, but that was only to apply to crimes on the high seas and only to slaves who were acting as pirates, not to ‘Offences, committed, or to be committed by Slaves in their Passage to this Island, as Merchandise’.34
In Barbados other, similar, contradictions arose. There was a conflation of categories whereby it was enacted in 1688 that ‘any Negro, Slave or Slaves’ would be tried by two JPs and three freeholders considering the ‘Evidences, Proofs, and Testimonies, or … violent circumstances’ for and against them. Race and unfreedom were fettered together via the assumed brutishness of Africans.35 This combination of racist assumptions and acknowledgement of the conditions under which the unfree gave their testimony provoked suspicion about the use of ‘slave’ or ‘negro’ evidence (Lepore 2005). Richard Hall, a lawyer and member of the Barbadian assembly, glossing the 1688 Act in 1764, and highlighting its inclusion of ‘violent circumstances’, revealed these anxieties in his hope that other evidence would be found. As he said,
a violent presumption, amounts in Law to full proof, that is, where circumstances speak so strongly, that to suppose the contrary would be absurd. And where that presumption necessarily arises from such circumstances, they are more convincing and satisfactory, than any other kind of Evidence, because facts cannot lie.36
Yet the spoken testimony of ‘Negroes’ and ‘Slaves’ could not be avoided, neither could the differences between those conflated categories.
In 1739, concerned about the ‘inconveniences’ presented by free ‘Negroes, Indians or Mulattoes’, the Barbados assembly enacted that the evidence of slaves, ‘where the same is supported with very good and sufficient corroborating circumstances’ presented against any ‘free Negroe, Indian or Mulatto, whether baptized or not’ was to be deemed
as good, valid and effectual in Law … as if the Slave giving evidence or testimony, was free, baptized, and not under servitude or bondage to any person whatsoever.37
Hall was quick to spot the contradiction. Since the Barbados assembly had ruled out evidence from anyone ‘whose original Extraction shall be proved to have been from a Negro, except only on the Trial of Negroes, and other Slaves’, then it was unclear whether their evidence was in fact valid against free people of colour or not.
In part this situation arose out of the contradictions of a plantation system that depended on the human capacities, agency and supernatural beliefs of the enslaved while simultaneously denying them all three (Blackburn 1997; Brown 2003). Enslaved Africans were precluded from taking oaths in court, but were cruelly punished for swearing them between themselves as part of a conspiracy or rebellion (Davis 2002). Slave owners and overseers might even use the otherwise vilified oath-taking practices of the enslaved, including rituals involving the consumption of grave-dirt and the invoking of spirit worlds, in theft investigation rites on the plantations (Brown 2003). Such contradictions were heightened by the transatlantic disjunctures and conflicts that defined the Age of Abolition when the institution of slavery came under attack on the basis of notions of right, justice and morality. In Barbados in the 1780s, the reforming plantation owner Joshua Steele, writing as ‘Philo-Xylon’, put the question of evidence-giving right at the heart of his critique of plantation society (Lambert 2005). Indeed, he organised his attack on the institution of slavery around the problems that precluding ‘Negro evidence’ against all but enslaved Africans created for slave societies. Steele’s work shows what was at stake in the regulation of the spoken word when it came to oaths and evidence.
In his published writings Steele imagined a series of conversations between a clergyman and his planter acquaintances over cards, food and drink at their homes and at Mr T’s store. Their debates over ‘Negro evidence’ played on the transatlantic constitution, contrasting the situation in Barbados with that of England ‘where all Ranks of Men, Slaves, Bondmen, and Apprentices, are admitted as legal Evidences’. Steele also had an imaginary newcomer to the island express himself ‘surprized to find, among English People, a mode of thinking, and a System of Laws, so new to me’. Barbadian planters faced, Steele argued, a set of ‘Evils … principally derived from some impolitic System woven into the Web of your motley Laws’. Since, 60 years before, ‘in the Frenzy of a contested Election, a Law, disgraceful to Humanity, was passed in the Colony’ that ‘no Descendants of Negroes’ shall give evidence in any case except the trial of slaves ([Steele] 1789, 6, 7 and 10).
However, picking away at the question of evidence-giving meant unravelling whole swathes of the system of racial slavery, calling fundamental powers and beliefs into question. Steele’s clergyman queried the legal basis on which the island’s legislature claimed the authority ‘to disqualify generally any Class of Subjects, of whatever Complexion, born within the British Dominions, and under the Allegiance of the Crown!’ He suggested that these laws were repugnant to the laws of England, and asked whether they shouldn’t be repealed ([Steele] 1789, 17 and 27). He also attacked assumptions about Englishness and racial purity, questioning how one can draw a ‘black Line’ between white and black on this issue, when, on the one hand there were ‘worthless and sordid white People’ who don’t understand, or who ignore, ‘the Nature and Obligation of that Oath’ and, on the other,
all the Descendants of Negroes, some of whom may now, perhaps, be seating among the Nobles and Commons in Parliament; (for without doubt, there has crept a little Negro Blood among them, thro’ wealthy matrimonial Connexions, in the Course of near two Centuries, since our first Communication with them).
Indeed, he went even further by arguing that since all men are descended from Adam, then either Adam was a Negro, and therefore all evidence must be disqualified, or ‘we pronounce against the Authority of the Holy Text, and say there were two Originals’ ([Steele] 1789, 13 and 16; Livingstone 2008).
Steele also presented the objections of his opponents and suggested heretical solutions to them. He had the slave-owners accuse the clergyman of advocating an ‘absurd System’ which would ‘think of putting a Species of Creatures, very little above Baboons, in their intellectual Capacity, upon a Level with ourselves’ and presented their key objection that there was no oath that could be sworn in court by these ‘African-born Savages’ since not one in 300 of the enslaved was Christian ([Steele] 1789, 9, 17 and 28). In their arguments these imagined planters demonstrated a strong grasp of the power-laden geographies of talk on the sugar islands. As Steele had them put it,
such visionary Notions might be ornamental in the Oratory of the Pulpit; where, by Act of Parliament, no Man dares to contradict the Preacher; but in a Curing-House, a Counting-House, or a Court-House, he would find the Statutes of the island were flatly against such dangerous Doctrines.
Allowing ‘Negro evidence’ against any but the enslaved would be ‘opening a Door to a Train of unknown and inconceivable Evils!’ ([Steele] 1789, 9 and 15).
The clergyman’s reply drew support from the published and unpublished writings of Steele’s own Barbados Society of Arts. He argued for ‘swear[ing] Negroes, as legal Evidences?’
By any Thing, of which they appear to have a solemn and awful Idea: By the Sun! By the Moon! By the God, who made and governs the Universe! (For I never yet spoke with a Negro, who had not something like an innate Idea of such a Supreme Being) or by Grave Dirt, if you will; as it is certain, the Solemnity of that Oath, appears to be connected with their Ideas of the Servivance of departed Souls, and of future Rewards and Punishments under the Decrees of Divine Power. ([Steele] 1789, 13)
They were also to be allowed to hold property under a reconstituted form of plantation slavery, a revived feudalism with the enslaved as copy-hold tenants according to the ‘slave laws of our Saxon and Norman ancestors’. This, he argued, would be ‘the most probable Way of civilizing Savages, and training them gradually to a rational Observance of, and Submission to, equitable and fixed Laws’ ([Steele] 1789, 15 and 22). Yet, in arguing for this system, a direct outcome of his critique of the laws on ‘Negro evidence’, Steele had overturned the fundamental tenets of plantation society. The chain binding race, freedom, Christianity, property and evidence-giving would be broken.
The links in this chain were also called into question by the legal status of the free black, Mulatto and Indian population of the islands. This was particularly an issue on Jamaica where the free non-white population numbered about 2000 people in the 1740s compared to around 100 000 enslaved Africans and about 9000 whites.38 As shown already, although free and potentially propertied, these people had no rights to representation in the assembly or to government office. Indeed, their freedoms were increasingly restricted across the 18th-century (Petley 2005). A 1717 act required those without sufficient property to carry a certificate signed by a JP and to wear a blue cross on their shoulder, so that it might be known who was enslaved and who free.39 In 1760, after a violent uprising among the enslaved, the Jamaican assembly required that all free Negroes, Mulattos and Indians without real estate register themselves with the vestry, get certificates and wear their ‘Badges of Freedom’. Later restrictions limited inheritances and landownership by free people of colour to £2000, on the grounds that
such Bequests tend greatly to destroy the Distinction, requisite and absolutely necessary to be kept up in this Island, between white Persons and Negroes, their Issue and Offspring of Mulattoes, not being their own Issue born in lawful Wedlock.40
Their rights in the Jamaican courts were also circumscribed, albeit less closely than the enslaved. They could give evidence against the unfree, but were not ‘admitted as an Evidence or Witness in any case where the life, liberty or property of a White Person is or shall be in question or in any wise Concerned’. When they themselves came before the courts, punishments could include the removal of their freedom and transportation off the island, penalties never applied to whites.41 Until 1748, those who were formerly slaves but had been freed were to be tried according to the same procedures as for the enslaved, ‘and the Evidence of a Slave against them [was] to be good and valid to all Intents and Purposes’.42 Those who were born free had more rights. This created problems of who could give evidence against whom, which were resolved in 1748 by enacting that all ‘free Negroes, Indians, and Mulattoes’ baptised as Christians could give evidence against one another. This act removed any exemptions that those born free might have assumed about who could give evidence against them (although manumissions had to be in effect for 6 months before former slaves could testify) and ruled that the courts were to ‘receive their Testimony on Oath … in the same Manner as if they were White Inhabitants of this Island’.43
Such legislation required definitions of who fell into these categories. There appears to have been little concern about who the free ‘Negroes’ and ‘Indians’ were. ‘Mulattoes’ were much more problematic for white planter society. In Jamaica, as in Barbados, their exclusion from representation in the assembly was made law by an act regulating the ‘Freedom of Elections’. However, the Barbadian exclusion of anyone ‘whose original Extraction shall be proved to have been from a Negro’ would have been unworkable in Jamaica. Instead ‘Mulattoes’ were defined as ‘any Person who is not above Three Degrees removed in a lineal Descent from the Negro Ancestor exclusive’. Thus it was enacted that
no one shall be deemed a Mulatto after the third Generation … but that they shall have all the Privileges and Immunities of His Majesty’s white Subjects of this Island, provided they are brought up in the Christian Religion.44
This definition was used as the basis for other legislation, including the 1748 act regulating their evidence-giving.
Yet these categories and the legal subjectivities assigned to them were somewhat more mutable than might at first appear. Tellingly, the 1748 act not only precluded free people of colour from giving evidence against white people, but also against any ‘Negroes, Indians, or Mulattoes, that have the Liberties of White Persons, by any Law of this Island’.45 As soon as there was public legislation enacting categorical distinctions based on ‘race’, then there were private acts shifting individuals between those categories and reallocating rights. There was the manumission of slaves, often in slave-owners’ wills (Petley 2005). There was the declaration, in order to prevent the kidnapping of Indians from central America, ‘that all Indians brought to the island since 28th December 1741 be declared to be Free People’.46 Also, the printed volumes of the laws of Jamaica contain several instances each year from the 1730s onwards of the propertied and free children of white men and black or mixed race women applying for private legislation to accrue to themselves, as it was written in the titles of the acts, some of ‘the Rights and Privileges of Englishmen, born of white Ancestors’.47 After 1760, with the increased constraints on inheritance, the sub-phrase ‘under certain restrictions’ was added (Hurwitz and Hurwitz 1967). But there soon appeared other private acts exempting people from the provisions of this law as well.48
Most significantly, there was the case of Francis Williams who directly contested this construction of legal subjectivities according to racial categorisations of who might bear witness. Francis was the son of a wealthy free black slave owner, John Williams, who, in February 1708, had brought in one of two bills (the other being for Manuel Bartholomew) ‘to enable him to be tried by a jury, as a white man’. John Williams was asking for exceptional status: to be a black man against whom the evidence of the enslaved would not be admitted. The assembly and council passed these bills into law with only one notable amendment, to ‘leave out the words “as an Englishman”‘. The exception was granted, therefore, but without a categorical change in the relationship between Williams’s legal and racial identities. The day these bills were passed there was another motion by another free black, John Callendar, and another a week later from Robert Bass. Sensing the opening of the floodgates, the assembly resolved that no more such petitions would be received during the session, and there is no sign that these two bills survived the prorogation of the assembly at the end of February.49 No other bills were brought in.
However, once partly opened, the floodgates could not be fully closed. A further private act in 1716 extended these rights to John Williams’s wife and three sons. One of these was Francis, who was to travel to England under the patronage of Lord Montagu, reportedly as part of an experiment into the education of black people. While there, he studied law at the inns of court before returning to Jamaica (Carretta 2003). In 1724, and following a street brawl and slanging match with the former attorney general William Brodrick, a committee of the Jamaican assembly recommended the removal of his privileged status in the island’s courts on the grounds ‘that Williams’s behaviour is of great encouragement to the negroes of the island in general, and may be attended with ill consequences to the white people thereof’.50 The law that was finally enacted by the assembly in 1730 reduced Williams to the same state of trial and evidence as other free black inhabitants of the island. The testimony of the enslaved might now be heard against him. It also enforced the wearing of badges of freedom by free people of colour, prohibited them from carrying swords or other arms and from living in the island’s three principal towns without licence from a JP.51 But Francis Williams was not finished. He petitioned the colonial government in London against the act on the basis of the hardships that he and his family would suffer now that the enslaved men and women he saw as his property could testify in court. He subsequently won the judgement from the Crown’s lawyers
That this Act is impolitick in its Tendency with respect to the Interest and Welfare of Jamaica as well as unequitable towards the Persons abovementioned [Williams’s family] and to the whole order of free Negroes since it manifestly tends to discourage the Integrity of the Slaves in that Island, as well as the Industry of those who are become free.52
Once this dispute over the power of speech and the rules of evidence became part of an Atlantic discussion, the complexities and contradictions of legal geography became apparent. The binding together of property and freedom – Williams’s slave-owning status and his legal privileges – as viewed from the imperial centre was given more weight than the necessary alignment of race and rights as understood in Jamaica – reducing a troublesome black man to the same legal status as other ‘free Negroes’. The 1730 law was repealed on order from London.
This contestation of the power of speech – who could speak against whom – worked the other way too, as Jamaica’s white population, like Williams, sought to maintain the privileges and identities underpinned by the laws on evidence. The significance of this for white Jamaicans is well illustrated by the fury unleashed in 1748 by the assembly’s consideration of two bills: what would become the act on the evidence of free people of colour, and a bill ‘for preventing the castration or other mutilation or dismemberment of slaves, without the authority of the magistrate’ (quoted in Robertson 2010, 323). The latter would, it seems, have allowed slave evidence to be used in specially constituted courts to prosecute slave owners, attorneys or overseers who mistreated the enslaved in ways defined by the bill. It was promoted by Governor Edward Trelawny who had, in 1741, proposed a scheme ‘for the abolishing of slavery, & putting the Negroes upon some such foot as the ancient villains of England were’, which has clear parallels with Steele’s later suggestions. In 1750 Trelawny was also to express concerns about the liberties English slave owners took with their slaves, and the inability of the law to hold them to account (Robertson 2010, 338).
The debate over this second bill provoked a storm of protest beyond the legislative chamber. On 18 May 1748 the Jamaican assembly was treated to a reading of ‘a false, scandalous, malicious, and seditious libel’ that had previously been declaimed in public outside the Kingston courthouse by Archibald Willock, a wharfinger.53 It purported to be a petition in support of the bill from the ‘negro slaves’ of the island addressed to Edward Manning and the other representatives of Kingston. Displaying classical and religious erudition, parodying forms of legal documentation and written in a high oratorical style, this satire’s main thrust was to present the bill as one that would turn the slave-holders’ and overseers’ worlds upside down. The supposed petitioners –‘unjustly and inhumanely detained in thraldom and bondage, in the island of Jamaica’– were presented as supporting
An act to make us evidences sufficient, on our bare word, (as we know not the meaning of an oath), to take from our unjust masters, the white men of this island, their liberty and property, and to take from them that shelter to which, for so many years they have fled, a fair trial by juries and lawful witnesses.
Furthermore, the enslaved petitioners argued that they themselves should have the privilege of a jury trial, that the island would only prosper when the white masters were subjected to the black slaves, and that ‘all arms and ammunition’ on every plantation should be ‘lodge[d] in the black drivers or favourite negroes house’.54 What had begun with extending the rules of evidence would end with armed uprisings of the enslaved. As Joshua Steele’s (1789) imagined planters would later agree, allowing such evidence ‘would be opening a Door to a Train of unknown and inconceivable Evils!’
The satire’s invented petition was both sworn to be true and ‘signed’ with ‘The mark + of CUDJOE’ and the threat that there were ‘Sixty thousand ready to carry the passing of the bill, or more, if required.’55 While Cudjoe was a relatively common slave name (Burnard 2004), the petition’s audience would have associated it with Captain Cudjoe, the leader of one of the maroon communities of the mountainous Jamaican interior. These maroons were a mixture of the descendants of those who had escaped slavery when the English defeated the Spanish and more recent runaways. They had fought the British to a standstill in the 1730s, and agreed a treaty in 1739 which guaranteed their freedoms, including a degree of continued judicial independence (Campbell 1988; Dallas 1803). This treaty, and the legal rights it gave this class of free black people on the island, was still fresh in the memory of Jamaica’s plantocracy in 1748. The maroons’ free status contradicted the correlation of whiteness with freedom, and haunted the imagination of white Jamaicans, and the Atlantic world they were part of (Wilson 2009). It was said that Captain Cudjoe had enacted the cultural and legal freedoms that the treaty ensured by enforcing a Coromantee oath on the English officer who had agreed it. The oath that had ratified the treaty’s articles, and underpinned maroon autonomy, had required both Cudjoe and Captain Guthrie to mix their blood with rum and drink it from a calabash (Bilby 1997). Cudjoe’s mark on the satire was a clear sign of the challenge that the legal rights of black people posed to the sovereignty and identity of free white Jamaicans. The satire used that challenge to object to the extension of the right to give evidence.
The agitation over the reading of the bill also raised divisive questions about Jamaican politics. The petition told Manning that the bill he had tried to get through with minimal debate would establish a
high court of inquisition … for reducing, by our means, artifices, and informations, the abominable pride of any white man, who shall ever hereafter complain at home of you or your patron [the governor].56
There were also reports that Robert Dallas, a prominent physician, had gathered people together in Kingston and read to them ‘what he called a copy of a bill’. Dallas had described the bill as the hidden work of Governor Trelawny, presented to the house by his creature Robert Penny, the attorney general. This, Dallas suggested to his presumably enfranchised audience, made Penny a ‘person unworthy of being their member’.57 Identification of the satire’s author – Dr James Smith, another Kingston physician – also provoked complaints about a pamphlet he had had published in London in 1747 entitled A letter from a friend at J[amaica]. The petition and the pamphlet certainly have similarities. Both attempted to use satire to skewer factions and factionalism in Jamaican politics, and both were concerned with the damage that could be done on the island through misusing oaths and evidence. However, they aimed at diametrically opposed political targets. In ‘Cudjoe’s petition’, Trelawny, Manning and Penny were cast as the villains trying to pass a bill that would criminalise attorneys and overseers on the word of slaves. In the Letter these politicians are the heroic victims of a ‘lurking’ faction trying to undermine the Jamaican government and supported by ‘People whom neither Birth nor Education had intitled to better Principles than are found among the general Run of Overseers to Plantations’ ([Smith] 1747, 4 and 12).
The members of the Jamaican assembly required to read both texts emphasised their parallel dangers. They judged the pamphlet to contain ‘several expressions which are false and villainous, and a high indignity to several members of this house, and tending to disturb the peace and quiet of this island’. And they ruled that the ‘negro petition’ was
injurious to the honour and authority of this house; tending to alienate the minds of the people from, and to incense them against, their representatives; to excite mutiny and disorder; and to destroy the well-being of this island, and the inhabitants thereof.58
Willock was judged to be the ‘publisher’ of the libel, by reading part of it out. Since he had done so without evil intent, he was discharged. The author, Smith, was to be prosecuted for it. In the end, however, having apologised and paid his accumulated legal fees, he was released. His attacks on both sides made him difficult to prosecute by either.
As James Robertson has argued, this satirical petition reveals ‘deeply rooted assumptions about law, freedom and privilege’ (2010, 341) which were central to defining the identities of white Jamaicans. Most notable here is that while the satire absolutely opposed the proposal to use slave evidence, it was far less critical of altering the rules for free people of colour. Smith did seek to exaggerate the provisions of the 1748 bill by claiming that these free but non-white people would be accorded the same rights as the Jews, but was more ambivalent over the ‘extirpation of the Jews’ that he argued would follow.59 Of utmost significance, therefore, was the maintenance of the distinction between whites (who were by definition free) and all others, and the use of the laws on evidence to ensure that. The 1748 act could pass because it permitted no extension of who could give evidence against white defendants. The other bill was not passed because it suggested the most significant extension of all: the use of slave evidence against their masters. Robertson is right that this was a matter of ‘local politics’. Agitation beyond the walls of the assembly shaped what went on within it. However, this was also an issue of Atlantic political and legal geography. The publication and circulation of Smith’s Letter shows that Jamaican political factionalism was a transatlantic issue, discussed in London. Moreover, the argument in ‘Cudjoe’s petition’ that granting ‘a petition of the white men’ against the bill
will prevent our getting possession of the promised lands … contrary to our natural rights as men, contrary also to your darling constitution of Britain, contrary to equity and good conscience
was, like the suggestion that the slaves be given guns, an invitation by Smith to his audience to recoil from something self-evidently unthinkable. In this case it was the suggestion that there was any basis for granting the enslaved either natural rights or the rights of free-born Englishmen which underpinned liberty and identity in their Atlantic empire. However, in order for it to be rejected, ‘Cudjoe’ had to voice the possibility.