Slavery, Sovereignty, and “Inheritable Blood”: Reconsidering John Locke and the Origins of American Slavery

¹The acquisition of Locke’s manuscripts is recounted in P. Long, A Summary Catalogue of the Lovelace Collection of the Papers of John Locke in the Bodleian Library (Oxford, 1959), and is mentioned by Peter Laslett in the foreword to John Locke, Two Treatises of Government, ed. Peter Laslett, Critical Edition (2nd ed., 1967; repr., Cambridge, 1988).

²On citations of Locke and other European writers in newspapers during the era of the American Revolution, see Donald S. Lutz, “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought,” American Political Science Review 78, no. 1 (1984): 189–197. In the 1760s and 1770s, most references were to Locke; by the 1780s, they were to Montesquieu; and by the 1790s, they were to William Blackstone, the compiler of England’s common law. A crucial work for American historians and political theorists was Louis Hartz, The Liberal Tradition in America (New York, 1955), which has received extensive commentary and criticism. A search of Google Scholar on October 9, 2016, found 74,200 academic books and articles that mentioned both Locke and slavery in English. Substantial non-English scholarship as well as innumerable non-academic articles must be added to that count; modern editions of Locke’s writings appear in many different languages.

³On the Enlightenment, see, e.g., Jonathan Israel, A Revolution of the Mind: Radical Enlightenment and the Intellectual Origins of Modern Democracy (Princeton, N.J., 2009), which builds on the current claim that Locke promoted slavery; C. B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford, 1962), especially chaps. 2–3. Despite many unproven and unsupported generalizations, Macpherson was probably the key scholar to argue that Locke’s philosophy supported slavery and capitalism. For example, he claims that Locke’s theories “erased the moral disability with which unlimited capitalist appropriation had hitherto been handicapped” (221), with a citation only to Locke’s work. Quite aside from Locke’s own arguments, through which he slides, Macpherson makes an ahistorical and inaccurate statement that the trade in people was so accepted that Locke must have meant to include slaves as property when he spoke of property. With historians relying in turn upon Macpherson, we have been caught in a tautological circle. On the movement to equate political and economic liberalism in the 1960s, see contemporary articles such as Lewis E. Hill, “On Laissez-Faire Capitalism and ‘Liberalism,’” American Journal of Economics and Sociology 23, no. 4 (1964): 393–396.

⁴While many scholars have challenged the argument that early America was liberal in other respects, they have neglected slavery. See, e.g., François Furstenberg, “Beyond Freedom and Slavery: Autonomy, Virtue, and Resistance in Early American Political Discourse,” Journal of American History 89, no. 4 (2003): 1295–1330. As he notes, “In this respect—perhaps only in this respect—the Hartzian paradigm still reigns. Although historians have long since dismantled Louis Hartz’s argument that the United States was dominated by a Lockean view that all men are by their nature free and equal, many persist in viewing slavery and the South much as Hartz viewed them: a curious anomaly, abnormality, or aberration of American political culture” (1308). See also David Armitage, The Ideological Origins of the British Empire (Cambridge, 2002); Uday Singh Mehta, Liberalism and Empire: A Study in Nineteenth-Century British Liberal Thought (Chicago, 1999), especially chap. 1. Both represent Lockean liberalism as coeval with imperialism. Mehta holds that Locke’s liberalism turns all “others” into children who cannot reason. Liberalism can be twisted in that way, but such rationalization was not intrinsic to Locke’s thought. See Holly Brewer, By Birth or Consent: Children, Law, and the Anglo-American Revolution in Authority (Chapel Hill, N.C., 2005), especially chap. 3 and the Conclusion.

⁵Winthrop D. Jordan, White over Black: American Attitudes toward the Negro, 1550–1812 (Chapel Hill, N.C., 1968), quote from 44; David Brion Davis, Inhuman Bondage: The Rise and Fall of Slavery in the New World (New York, 2006); Michael Guasco, Slaves and Englishmen: Human Bondage in the Early Modern Atlantic World (Philadelphia, 2014). Guasco traces a familiar narrative of the acceptance of slavery with huge gaps in between cases and evidence; everything is a march toward slavery, which is defined as though everyone knew automatically what it would become. I cannot fully challenge the “custom” argument here, but would note in passing that power structures in the early empire mattered, and that the legal elements of slavery mattered, too—before 1660, legal practices were confined by English law. In Barbados in 1636, for example, the governor, Henry Hawley (appointed by Barbados’s proprietor, the Earl of Carlisle), made an awkward effort to apply feudal law to Africans and Indians. I address this topic in depth in chap. 1 of my book in progress, currently entitled “‘Inheritable Blood’: Slavery and Sovereignty in Early America and the British Empire.”

⁶See, e.g., Edmund S. Morgan, American Slavery, American Freedom: The Ordeal of Colonial Virginia (New York, 1975), 381, which has shaped the interpretation of America’s paradox most profoundly. Works that situate the emergence of New World slavery in the colonies of other European countries include Anthony Pagden, Lords of All the World: Ideologies of Empire in Spain, Britain and France, c. 1500–c. 1800 (New Haven, Conn., 1998)—which carefully singles out England’s empire as different based on the view that Locke and English liberalism accepted slavery. A wide range of studies have sought elusive justification for slavery in Locke’s writings and practice. See Robin Blackburn, The Making of New World Slavery: From the Baroque to the Modern, 1492–1800 (London, 1997), especially 263–265; Alan Gallay, The Indian Slave Trade: The Rise of the English Empire in the American South, 1670–1717 (New Haven, Conn., 2003); David Armitage, “John Locke, Carolina, and the Two Treatises of Government,” Political Theory 32, no. 5 (2004): 602–627; Israel, A Revolution of the Mind, 93. See also Wayne Glausser, “Three Approaches to Locke and the Slave Trade,” Journal of the History of Ideas 51, no. 2 (1990): 199–216; Robert Bernasconi and Anika Maaza Mann, “The Contradictions of Racism: Locke, Slavery and the Two Treatises,” in Andrew Valls, ed., Race and Racism in Modern Philosophy (Ithaca, N.Y., 2005), 89–107, especially 103.

The literature on Iberian slavery is too vast to cite fully, but I recommend two books on the impact of Spanish ideas about blood and lineage on slavery in the Spanish New World: María Elena Martínez, Genealogical Fictions: Limpieza de Sangre, Religion, and Gender in Colonial Mexico (Stanford, Calif., 2011); and Michelle A. McKinley, Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600–1700 (Cambridge, 2016).

⁷Even Christopher Tomlins’s magisterial study of the creation of colonial slave codes from America’s founding to the Civil War, Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580–1865 (Cambridge, 2010), continues to try to fit the emergence of slavery within a largely liberal political order, maintaining Morgan’s paradigm. Abigail L. Swingen, Competing Visions of Empire: Labor, Slavery, and the Origins of the British Atlantic System (New Haven, Conn., 2016). William A. Pettigrew, in Freedom’s Debt: The Royal African Company and the Politics of the Atlantic Slave Trade, 1672–1752 (Chapel Hill, N.C., 2014), is so attached to Morgan’s paradigm that he claims that arguments for “free trade” in African servants and slaves during the 1690s show that economic liberalism trumped political liberalism; he implies that most supporters of such arguments were Whigs, and, in his original article, that Locke supported the 1698 African Company Act. But in fact Pettigrew never shows that Whigs supported such arguments. It was mostly Tories—their opponents—who sought to use some of the arguments of the Revolution about freedom to oppose the Royal African Company’s monopoly. Regardless, “free trade” was never unregulated and unprotected trade. Pettigrew, “Free to Enslave: Politics and the Escalation of Britain’s Transatlantic Slave Trade, 1688–1714,” William and Mary Quarterly, 3rd ser., 64, no. 1 (2007): 3–38. For more on Pettigrew, see below at note 112.

Eric Williams, in Capitalism and Slavery (Chapel Hill, N.C., 1944), does not link early slavery to liberalism; indeed, he is more in tune with my own thinking about its having emerged from what liberalism was arguing against. More recent volumes draw on this longer scholarship of liberalism and its contradictions to challenge Eugene Genovese’s argument that slavery was part of a paternalist, pre-capitalist order. See, e.g., Elizabeth Fox-Genovese and Eugene D. Genovese, The Mind of the Master Class: History and Faith in the Southern Slaveholders’ Worldview (Cambridge, 2005). Among many others, see Lorena S. Walsh, Motives of Honor, Pleasure, and Profit: Plantation Management in the Colonial Chesapeake, 1607–1763 (Chapel Hill, N.C., 2010); Wendy Warren, New England Bound: Slavery and Colonization in Early America (New York, 2016); Walter Johnson, Soul by Soul: Life inside the Antebellum Slave Market (Cambridge, Mass., 1999); Edward E. Baptist, The Half Has Never Been Told: Slavery and the Making of American Capitalism (New York, 2014); Sven Beckert, Empire of Cotton: A Global History (New York, 2014); and more recently, the result of a 2012 conference, Sven Beckert and Seth Rockman, Slavery’s Capitalism: A New History of American Economic Development (Philadelphia, 2016). Beckert in particular elides the “liberal” question, referring to the early period of slavery as “war capitalism” and ignoring the matter of state power. His book, like Baptist’s, focuses mostly on the nineteenth century.

⁸The term “terrible transformation” was coined by Peter Wood in Strange New Land: Africans in Colonial America (Oxford, 2003), based in part on Anthony S. Parent’s Foul Means: The Formation of a Slave Society in Virginia, 1660–1740 (Chapel Hill, N.C., 2003). A few works connect political ideas to slavery in England’s colonies in ways that fit with my interpretation. Robert Olwell, in Masters, Slaves, and Subjects: The Culture of Power in the South Carolina Low Country, 1740–1790 (Ithaca, N.Y., 1998), makes the mental worlds of the masters come alive as part of a hierarchical order with the king at the top in eighteenth-century South Carolina. Likewise, Philip D. Morgan, Slave Counterpoint: Black Culture in the Eighteenth-Century Chesapeake and Lowcountry (Chapel Hill, N.C., 1998), and Parent, Foul Means, show how patriarchal arguments helped masters to justify their position in society in the eighteenth century. Kathleen M. Brown, in Good Wives, Nasty Wenches, and Anxious Patriarchs: Gender, Race, and Power in Colonial Virginia (Chapel Hill, N.C., 1996), implies a political dimension in her argument that patriarchy required slavery; making the connection to the broader political debates, however, is not her concern. My argument here fits well with the social development of slavery described in T. H. Breen and Stephen Innes, “Myne Owne Ground”: Race and Freedom on Virginia’s Eastern Shore, 1640–1676 (1980; 25th Anniversary Edition, New York, 2005); Ira Berlin, Many Thousands Gone: The First Two Centuries of Slavery in North America (Cambridge, Mass., 2009); Peter Wood, Black Majority: Negroes in Colonial South Carolina, from 1670 through the Stono Rebellion (New York, 1974); and Jennifer L. Morgan, Laboring Women: Reproduction and Gender in New World Slavery (Philadelphia, 2011). See also Simon P. Newman, A New World of Labor: The Development of Plantation Slavery in the British Atlantic (Philadelphia, 2016); and Swingen, Competing Visions of Empire, though Swingen sees slavery as emerging from Cromwell’s Western Design, which I find to be deeply problematic, not least because Cromwell’s troops freed Spanish slaves.

⁹Locke responded mainly to Sir Robert Filmer, who represented the Stuart argument. For Filmer, primogeniture was the ideal source of all authority. He repeated phrases such as “God … re-established the ancient and prime right of lineal succession to paternal government,” “next heirs,” “the right of the father descended to the true heir,” “by succeeding a king,” and “escheat for want of an heir.” The knowledge of God’s true heir by primogeniture should always be known by its subjects: “It is but the negligence or ignorance of the people to lose the knowledge of the true heir, for an heir there always is.” Just so the complicated tables of descents that accompanied the law books on inheritance focused on finding true heirs. Filmer, Patriarcha and Other Writings, ed. Johann P. Sommerville (Cambridge, 1991), e.g., 9–11, quotes from 9, 10.

Even when colonists did not read Filmer directly, these principles of hereditary status were expressed in both legal and High Anglican thought, transmitted in basic legal texts such as Sir Edward Coke’s Institutes of the Laws of England and the Book of Common Prayer and such popular sermons as Richard Allestree’s The Whole Duty of Man. See Brewer, By Birth or Consent, 304–305. One of the few scholars to take Filmer’s influence seriously is Mary Beth Norton, Founding Mothers and Fathers: Gendered Power and the Forming of American Society (New York, 1996), 59–60, 98–100, 296–297, for which she was revealingly criticized by Edmund S. Morgan in “Subject Women,” New York Review of Books, October 31, 1996, http://www.nybooks.com/articles/1996/10/31/subject-women/.

My first attempt to connect slavery and the ideology of the Stuarts was in Holly Brewer, “Power and Authority in the Colonial South: The English Legacy and Its Contradictions,” in Joseph P. Ward, ed., Britain and the American South: From Colonialism to Rock and Roll (Jackson, Miss., 2003), 27–51.

¹⁰Many scholars, following in the wake of J. G. A. Pocock’s The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, N.J., 1975), differentiate between Locke’s ideas and broader “republican” thought. However, Pocock’s view of Locke was shaped by Peter Laslett and Macpherson’s narrow definition of Locke’s liberalism, which in turn paved the way for a somewhat bizarre bifurcation of ideas between liberalism and republicanism in the historiography during the 1980s and 1990s. Locke was the leading proponent of ideas about equality and consent—ideas shared by others whom contemporaries would have described as “Democraticall” or “Republican” or “Whig.” His were also sometimes called “levelling” ideas, reflecting their origins during the English Civil War. Others whose work was remarkably similar to Locke’s are Algernon Sidney and James Harrington.

¹¹As H. R. Fox Bourne points out, as a student at Westminster School, Locke was an arm’s length from the execution; he probably saw it, if not the trial. Bourne reprints the full text of the odes. Bourne, The Life of John Locke, 2 vols. (New York, 1876), 1: 25, 51–52; Two Treatises of Government, ed. Laslett, 17–20.

¹²Locke to John Locke, Sen., ca. January 9, 1660, in E. S. de Beer, ed., The Correspondence of John Locke, 8 vols. (Oxford, 1976), 1: 136–137, letter 91. See also his “First Tract on Government (1660),” in John Locke, Locke: Political Essays, ed. Mark Goldie (Cambridge, 1997), 3–53.

¹³W. D. Christie, A Life of Anthony Ashley Cooper, First Earl of Shaftesbury, 2 vols. (New York, 1871), 1: appendix 4. Cooper was not made Earl of Shaftesbury until 1672, but for consistency’s sake, I use his well-known later title.

¹⁴Charles II’s proclamation from Breda read: “And to the End that the Fear of Punishment may not engage any … We do grant a free and general Pardon, which We are ready upon Demand to pass under our Great Seal of England, to all Our Subjects, of what Degree or Quality soever, who, within Forty Days after the Publishing hereof, shall lay Hold upon this Our Grace and Favour, and shall by any Public Act declare their doing so; and that they return to the Loyalty and Obedience of good Subjects (excepting only such Persons as shall hereafter be excepted by Parliament).” “The King's Declaration,” May 1, 1660, in Journal of the House of Lords, vol. 11: 1660–1666, 6–9, British History Online, http://www.british-history.ac.uk/lords-jrnl/vol11/pp6-9#h3-0009. While some scholars think that Charles II always meant to exclude those involved in his father’s trial from the pardon, contemporaries did not agree. John Cook, the prosecutor of Charles I, decided not to flee England on the basis of Charles II’s promise. See Geoffrey Robertson, The Tyrannicide Brief: The Story of the Man Who Sent Charles I to the Scaffold (New York, 2008).

¹⁵Book of Common Prayer, 1662 edition, service for May 29.

¹⁶James I, The Trew Law of Free Monarchies, in The Workes of the Most High and Mightie Prince, Iames: By the Grace of God, King of Great Britaine, France and Ireland, Defender of the Faith, &c. (London, 1616), 209. See also Robert Filmer, The Free-Holders Grand Inquest Touching Our Soveraigne Lord the King and His Parliament (London, 1648), in Sommerville, Patriarcha and Other Writings, 69–130, especially 69–80. Hereditary obligations are the main point of both books.

¹⁷Charles I’s charter to Lord Carlisle for Barbados reads: “This of our Regall Authority is given and granted to him, his Heirs and Assigns,” and later: “And the same Earl of Carlisle his Heirs and assignes of the aforeseaid Rigion we do create and ordaine absolute Lord as he to whom the property doth belong.” “Barbados Charter,” The National Archives, Kew, UK [hereafter TNA], Records of the Colonial Office, CO 29/1, 1–3.

¹⁸At first the king promised in the official instructions for new governor Thomas Modyford of Jamaica in February 1664 to allow thirty acres to the master/father for importing every servant and family member and then thirty acres for the freed servants. “Notes on Royal Instructions to Modyford for Jamaica,” February 18, 1664, TNA, CO 1/18, no. 26. Then Modyford (already a planter in Barbados) recommended that the king cease to promise land to freed servants, and that “black” servants be counted as giving land to those who buy them. Modyford advised the king that to get rich in customs, he should follow the model of Barbados: “1. That his Majestie bee prodigall in granting away the first million acres alloweing thirty acres per head to men women and Children white or blacke, for the latter further the Plantation as much and Doe asmuch produce the goods that shall pay Custome and fill shipps[.] 2. That the authority at Jamayca may allow over and above the Thirty Acres per head what they shall think fitt to such As have good estates and doe engage to bringe on more people then they doe at first present for perhapps hee that meanes to bringe an hundred hands will at first send but 20 to plant provisions against the [rest arriving].” Sir Thos. Modyford to Sec. Sir Henry Bennet [Lord Arlington], Barbadoes, May 10, 1664, TNA, CO 1/18, nos. 65, 65 I., II., III., IV., V., VI., VII. King Charles II agreed to these propositions in August 1664 with his Privy Council: “That the Authority at Jamaica may allow Over & above the 30 Acres the head what they shall thinke fit, after the proportion of 30 Acres per head & no more according to the First proposition & not other ways, to such as have good Estates, & doe ingage to bring on more people than they doe at first present; for perchance he that means to bring an hundred hands will at first send but twenty to plant provisions against the rest … In which Case, if such a One should be allowed after the rate of twenty, the Land about that art may be taken up before the rest come, & then he may seeke two or 3 perhaps 4 miles from the rest, Which would be highly mischievous.” “Report of the Committee of the Privy Council for the affairs of Jamaica on the above-mentioned nine articles of proposals by Governor Sir Thos. Modyford,” Minutes of the Committee for the Affairs of Jamaica, August 10, 1664, CO 1/18, nos. 90–91.

¹⁹Tony Parent calls this period the great “landgrab” because so many masters obtained large estates via headrights. Parent, Foul Means; Wesley Frank Craven, White, Red, and Black: The Seventeenth-Century Virginian (Charlottesville, Va., 1971), 10–20; Morgan, American Slavery, American Freedom, 49; Edmund S. Morgan, “Headrights and Head Counts: A Review Article,” Virginia Magazine of History and Biography 80, no. 3, pt. 1 (1972): 361–371; John C. Coombs, “The Phases of Conversion: A New Chronology for the Rise of Slavery in Early Virginia,” William and Mary Quarterly 68, no. 3 (2011): 332–360 (though he also uses wills); “Entries Relating to Virginia,” TNA, CO 5/1355, 347.

²⁰For official estimates of crown revenues from tobacco in 1636, see “Notes, by Sec. Windebank, of the proceedings of a Committee for Trade,” June 11, 1636, in vol. 326, “June 10–19, 1636,” in Calendar of State Papers, Domestic: Charles I, vol. 9: 1635–1636, ed. John Bruce (London, 1866), 551, item 6; and George Louis Beer, The Origins of the British Colonial System, 1578–1660 (1908; repr., Gloucester, Mass., 1959), 171.

Tobacco and sugar taxes together made up at most a third of total crown revenue. For 1687, see TNA, Treasury Records, T 48/7, 1–3, which specifies that the amount recorded is the “gross” revenue from the 3 pennies per pound new impost on tobacco. An additional 2 pennies per pound was collected under the old customs granted to Charles II. Thus the amount stated, £435,389, is just three-fifths of the total collected for tobacco. Note, however, that this amount is gross, not net, which I use because tallies (also called debentures) for crown debt (annuities), many salaries, and shipbuilding and other costs were charged to the account before net proceeds were deposited into the treasury. Total net crown revenue was just over 2 million pounds that year. For net revenue only, see C. D. Chandaman, The English Public Revenue, 1660–1688 (Oxford, 1975), 361. Pay for customs collectors and enforcement was subtracted from the gross amounts, so is not listed as part of the budget. Stephen Saunders Webb notes that members of Parliament realized in 1685 that these new taxes would bring in so much revenue that James II could support a new army. Webb, Lord Churchill’s Coup: The Anglo-American Empire and the Glorious Revolution Reconsidered (Syracuse, N.Y., 1998), 104.

²¹George Frederick Zook, The Company of Royal Adventurers Trading into Africa (1919; repr., New York, 1969), chap. 4. For a letter to Barbados regarding Charles II’s requests, see “Minutes of the Council for Foreign Plantations,” February 11, 1661, in Calendar of State Papers, Colonial Series: America and West Indies, vol. 5: 1661–1668, ed. W. Noel Sainsbury (London, 1880), 6–7, item 24. Among other things, the letter directed the governor and the Council of Barbados “[t]o give a conjectural account of the number of inhabitants and their increase or decrease for the last seven years; the number of freeholders, conditional servants, and blacks; also the number necessary by way of yearly supply to the use of the island” (7). See also, e.g., “Petition of Sir William Berkeley, His Majesty’s Governor of Virginia, to Lords of the Council for Foreign Plantations,” July ?, 1662, TNA, CO 1/16, no. 78.

²²The comments on the secret part of the marriage treaty are based upon my research with help from Mitch Fraas in 2012. See especially “Treaty between Great Britain and Portugal, of Marriage between His Majesty Charles the Second and the Princess Catherine, Infanta, Signed at Whitehall, 23rd June, 1661 (Translation),” in British and Foreign State Papers, vol. 1, pt. 1: 1812–1814 (London, 1841), 494–501, here clause XIV (498). Charles II gave his brother a commission at the beginning of the war with the Dutch in 1664 that allowed him to attack wherever he liked; James chose the Dutch-occupied forts off the coast of Africa. See Bodleian Library, Oxford, MS Rawlinson A55, 19, “General Instructions to his Royall Highnesse going to sea March 22nd 1664/5”: “I give unto you the sole & entire Command of that our fleet, assuring ourselfe of all happy successe under the blessing of Almighty God & from your Wisdome valour: & conduct & reposing entire confidence in your affection & duty, … [to act] in such manner as to the best of your Judgement shall seame fit, taking advice therein of such a Councell of War as you yourselfe shall thinke fit to call.” More generally, see Zook, The Company of Royal Adventurers Trading into Africa; K. G. Davies, The Royal African Company (London, 1957); and the Trans-Atlantic Slave Trade Database, http://www.slavevoyages.org/.

²³Christopher Tomlins agrees. He cites a manuscript version of this article in Freedom Bound, 420. See also Edward B. Rugemer, “The Development of Mastery and Race in the Comprehensive Slave Codes of the Greater Caribbean during the Seventeenth Century,” William and Mary Quarterly 70, no. 3 (2013): 429–458, who wrote in response to my findings after reading an earlier version of this article at a Yale symposium in 2009. The Company of Royal Adventurers Trading into Africa was formally renamed to its earlier common appellation, the Royal African Company, in 1672.

²⁴While Africans were kept in servitude in English colonies before 1660, no formal laws stabilized their situation or governed their status in the manifold ways that would come to characterize the rigidity of slavery in the Anglo-American world by the middle of the next century. Two of the most important examples of colonies that kept Africans in servitude in large numbers before 1660 are Providence Island and Barbados. Although Providence Island’s English sponsors were Puritans, few settlers supported those principles. See Karen Ordahl Kupperman, Providence Island, 1630–1641: The Other Puritan Colony (Cambridge, 1993). In Barbados, the forcible employment of African labor was becoming widespread by the mid-1650s, and there is evidence that Barbadians considered their status hereditary as well. Still, the legal structure of slavery was weak until the Restoration in 1660. One could argue that after 1649 Barbados was a royalist stronghold due to the council’s confiscation of the land of all those who supported the Commonwealth, and that Barbadian elites’ allegiance to principles of hierarchy influenced their treatment of African laborers during the 1650s. In the 1650s, Barbados was controlled by royalists, with most parliamentary supporters expelled (and their land confiscated) in 1650. While Barbadians swore temporary allegiance to Parliament in 1651, it did not last (in contrast to Virginia). See Gary Puckrein, Little England: Plantation Society and Anglo-Barbadian Politics, 1627–1700 (New York, 1984), 113, which describes the confiscations and banishments.

On blacks in Virginia before 1660, see, e.g., A. Leon Higginbotham Jr., In the Matter of Color: Race and the American Legal Process—The Colonial Period (New York, 1978), especially chap. 2, “Virginia: The Leader”; Breen and Innes, “Myne Owne Ground”; Tomlins, Freedom Bound; Newman, A New World of Labor.

²⁵William Waller Hening, ed., Statutes at Large: Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619, 13 vols. (New York, 1823), 2: 24–25 (March 1661), 2: 49 (March 1662), 2: 86 (March 1662).

²⁶Ibid., quotes from 2: 49, 2: 170.

²⁷Ibid., 2: 163–171 or 177–179 (on slavery). Henricus de Bracton [Henry of Bratton], De legibus et consuetudinibus Angliae [On the Laws and Customs of England] (1268), trans. Samuel E. Thorne, 2 vols. (Cambridge, Mass., 1968), 2: 30, accessible online at http://bracton.law.harvard.edu/. Latin editions appeared in London in 1533 and 1569, followed by two editions in 1640 at the beginning of the struggle over power that became England’s Civil War. For Justinian, see Thomas Collett Sandars, ed. and trans., The Institutes of Justinian, 7th ed. (London, 1910), 15. On the discovery of medieval feudalism in the seventeenth century (and how that fits into broader controversies over the shape of power in England), see J. G. A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century (Cambridge, 1957). My interpretation differs somewhat from that of Kathleen Brown in Good Wives, Nasty Wenches, and Anxious Patriarchs, in that I find a common-law precedent for something she saw as de novo. Early modern common-law texts on the hereditary status of villeins sometimes differed on whether the mother or the father passed on the status. In Coke, for example, descent was through the father. Coke upon Littleton, vol. 1 of Coke’s Institutes of the Laws of England, 11th ed. (London, 1719), 123a. Warren Billings also noted common-law precedents for this first slave law in Virginia in Henry Swinburne’s A Treatise of Testaments and Last Wills (London, 1677), 52; see Billings, Sir William Berkeley and the Forging of Colonial Virginia (Baton Rouge, La., 2004), 177, as well as his “The Law of Servants and Slaves in Seventeenth-Century Virginia,” Virginia Magazine of History and Biography 99, no. 1 (1991): 45–62. However in the 1590 edition, pp. 44–45, Swinburne’s statement of the common law is more similar to Coke’s (the child follows the condition of the father), even though Swinburne cites Bracton. The similarity in language between Bracton and the 1662 Virginia law indicates that someone who was learned in Latin and the common law crafted it from Bracton.

²⁸The Spanish and Portuguese civil laws followed Roman practice to trace status to the mother. Bracton was influenced by the thirteenth-century revival of interest in Roman law.

²⁹Indeed, Charles II’s marriage to Catherine de Braganza of Portugal was no doubt influenced by her riches and her connections to the slave trade. Though the Portuguese had recently (very recently, even during the marriage negotiations) lost some of the major forts, including Elmina, to the Dutch, the Portuguese had numerous connections to many forts, which Charles II may have hoped to capitalize on from the beginning of the marriage negotiations. Even in 1660, as the ships were crossing with Catherine, she was described in pamphlet verse as “with store of Indian treasure” that would enable pensions to be paid to the former cavalier soldiers. Here Is Some Comfort for Poor Cavaleeres; or, The Duke of Yorks Speech to the Parliament of England, Concerning His Fathers Old Souldiers (London, [1660]), 1 sheet. For her impact on English fashions, especially in terms of the taste for goods (not clothes), including tea and spices, see Gertrude Z. Thomas, Richer than Spices: How a Royal Bride’s Dowry Introduced Cane, Lacquer, Cottons, Tea, and Porcelain to England (New York, 1965).

³⁰Charles II directed that his face be on the reverse of the Royal African Company seal. See especially “Warrant to prepare a bill for the King’s signature, containing a grant to the Royal African Company,” January 10, 1663, in Sainsbury, America and West Indies, 5: 120–122, item 408.

³¹“Henry Hartwell and others to William Popple,” October 20, 1697, in Calendar of State Papers, Colonial Series: America and West Indies, vol. 15: 1696–1697, ed. J. W. Fortescue (London, 1904), 641–666, item 1,396. In testimony to the Board of Trade about the condition of Virginia, Henry Hartwell, James Blair, and Edward Chilton pointed out that “[t]he General Assembly was a great restraint upon both Governor and Council until 1680, up to which time an appeal lay from the General Court (that is, the Governor and Council) to the General Assembly. Moreover there was always a joint Committee of private causes, wherein the Burgesses were three to one of the Council, to hear appeals from the General Court” (650). Charles II and his Privy Council removed this ability upon Culpeper’s appeal. Under James II, Governor Effingham began to choose the clerk to the burgesses, someone who could serve him by spying on their deliberations and who could shape what was recorded to be sent back to England as Virginia’s official legislative proceedings as well as a patronage reward that gave him more allies. As Hartwell reported to the Board of Trade a decade later, the clerkship was “a very profitable place by the Governor’s gift” (650). By the 1690s, thus, the burgesses could not directly petition the king and the Board of Trade.

³²Among many sources, see Webb, Lord Churchill’s Coup, especially 101–104.

³³Viola Florence Barnes, The Dominion of New England: A Study in British Colonial Policy (New Haven, Conn., 1923), 35–36. Swingen, Competing Visions of Empire, 124–125, illuminates James II’s plans for a similar dominion in the West Indies.

³⁴The first published attribution to Locke of the authorship of the Fundamental Constitutions was in “The Fundamental Constitutions of Carolina,” in Pierre des Maizeaux, ed., A Collection of Several Pieces of Mr. John Locke (London, 1720), 1–53. Des Maizeaux attributes the work solely to Locke, claiming that the proprietors somehow wanted Lord Ashley to draw up the laws, as he was the wisest of them, and he in turn chose Locke. The Fundamental Constitutions of Carolina of 1669, completed while he was secretary to Shaftesbury, were in fact written for eight men, the original Lords Proprietors of Carolina. The proprietors had received Carolina from a grateful Charles II for their help in restoring him to the throne of England in 1660. Most were outspoken royalists (like the Berkeley brothers), while George Monck, first Earl of Albemarle, went back and forth in his support. Shaftesbury, while radical before—and after, when he was the main agitator in the Exclusion Crisis of 1679–1681—was in 1669 serving Charles II as his lord chancellor. On Locke’s increasing radicalism, see Richard Ashcraft’s discussion in Revolutionary Politics and Locke’s “Two Treatises of Government” (Princeton, N.J., 1986).

The best discussion of how the Fundamental Constitutions should shape how we think about Locke’s thought on slavery is James Farr, “‘So Vile and Miserable an Estate’: The Problem of Slavery in Locke’s Political Thought,” Political Theory 14, no. 2 (1986): 263–289, as well as his more recent article “Locke, Natural Law, and New World Slavery,” Political Theory 36, no. 4 (2008): 495–522, which elaborates the same conclusions and connects them to how antebellum southerners read Locke. Farr makes a strong argument that Locke did not try to apply his notions of “just war” to Indian enslavement in Carolina (e.g., 508). Alan Gallay makes much the same point about Locke’s involvement in policymaking in South Carolina in the 1670s in The Indian Slave Trade. See also Armitage, “John Locke, Carolina, and the Two Treatises of Government”; Glausser, “Three Approaches to Locke and the Slave Trade”; James Tully, An Approach to Political Philosophy: Locke in Contexts (Cambridge, 1993); Barbara Arneil, John Locke and America: The Defence of English Colonialism (Oxford, 1996).

³⁵“The Fundamental Constitutions of Carolina” (1669), in John Locke, Political Writings, ed. David Wootton (Indianapolis, 2003), 210–232, here 211. In fact, des Maizeaux is wrong. Key elements of Carolina’s Fundamental Constitutions preceded Locke’s involvement. See, for example, Charles II’s charter to the proprietors in 1663, which allowed them to grant titles of nobility so long as they were not already used in England, and named the eight proprietors “the true and absolute Lords and Proprietors of the said Province.” “The first charter granted by King Chas. II,” Westminster, March 24, 1663, in Sainsbury, America and West Indies, 5: 125–126, item 427, along with letters to John Yeamans, the first governor appointed by the proprietors in 1665, who had owned a plantation in Barbados and had orders to replicate its policies; e.g., “Commission from the Lords Proprietors of Carolina to Sir Jno. Yeamans, Governor of the County of Clarendon, &c., and his Council,” Jan ?, 1665, ibid., 270, item 913. See also the proprietors’ call for settlers, which outlined the form of government and headright policies including explicitly granting headrights to masters of one hundred acres for each “man servant” and “for every woman servant and slave 50 acres,” principles later laid out more fully in the Fundamental Constitutions: “New Plantation at Cape Florida, Carolina,” late 1666 or early 1667 (it made these promises of land only to those who arrived there before June 1667, so was made substantially in advance), TNA, Domestic Records of the Public Record Office, PRO 30/24/48, no. 83, also in Calendar of State Papers, Colonial Series: America and West Indies, vol. 9: 1675–1676 and Addenda 1574–1674, ed. W. Noel Sainsbury (London, 1893), 144, item 377. Locke met Shaftesbury in late 1666 when he treated him for an illness, but became his personal physician and secretary only in the summer of 1667, well after this proclamation. On Locke’s pay, see “Two Ledgers containing John Locke’s accounts, 1671–1704,” Bodleian Library, MS. Locke c. 1: Locke’s ledger, 1671–1702, fols. 16–17, which are solely the amounts he was reimbursed for writing, copying onto vellum, posting, and his own travel, all related to the Carolina Constitutions; they total more than £20.

³⁶Armitage, “John Locke, Carolina, and the Two Treatises of Government,” argues that Locke’s continuing involvement with the Fundamental Constitutions and his failure to excise the passages about slavery during revisions in 1682 show that he strongly supported real slavery. However, note that the other identified reviser, Peter Colleton, son of John Colleton, a strong royalist and the original proprietor, to whom Charles II had granted a baronetcy as well, had “corresponded regularly and intimately [with Locke] until Shaftesbury’s fall from grace with Charles II in 1674” (614), which is when the political chasm began to emerge. By 1682, as Charles II repeatedly leveled criminal charges against Shaftesbury, that chasm become a canyon. On Shaftesbury’s arrest and prosecution, see, e.g., K. H. D. Haley, The First Earl of Shaftesbury (Oxford, 1958), chap. 28, “Under Threat of Death.”

To see Colleton and Locke as working amicably in 1682 ignores political divisions so fierce that they precipitated a revolution within the decade. Indeed, Locke’s comments indicate that he, on Shaftesbury’s behalf, was responding to the suggestions of Colleton and an unknown third writer with compromises and concessions such as “Agreed that the Proprietors Deputys are not to be turned out.” Armitage, “John Locke, Carolina, and the Two Treatises of Government,” 614–615. Since these comments were incorporated into the revised constitution, they were already the result of compromise. Other suggestions, such as the support of regular elections and limiting prorogation of the elected house, also emerged from such compromises. But Shaftesbury’s hand was weak at this point, not just literally (he died within the year), but politically and economically as well: he was imprisoned and charged with treason by the king, and he had mortgaged his share of Carolina. While I agree with Armitage that Locke’s involvement in the Fundamental Constitutions influenced the Two Treatises, I think Locke’s Two Treatises emerged not in harmony with but in reaction to the Fundamental Constitutions.

³⁷Shaftesbury also owned half of a sugar plantation of 205 acres in Barbados between 1646 and 1655, which had twenty-one white servants and nine black servants when he sold his share in 1655. Haley, The First Earl of Shaftesbury, 64, 230–231. Locke’s Royal African Company shares appear in the published incorporation act in 1673, but they were actually transferred from one John Portman out of the former Company of Royal Adventurers. Locke promised £400. See “Minute Book of the Generall Court of the Royal African Company of England” [hereafter RAC Minute Book], TNA, T 70/100, 150, and Bodleian Library, MS. Locke c. 1, especially fols. 15, 78–79. Both date the initial transfer to February 6, 1671/1672. Locke paid in installments out of money due him from the Treasury during the stop on the Exchequer during 1673 and into early 1674; see, e.g., fols. 50–51. Note that through 1675, all the meetings of the Royal African Company were at the Royal Palace at Whitehall, in the same room where the Council of Foreign Plantations met, showing that the Royal African Company was an arm of the king.

³⁸See, e.g., “Commissions, Instructions, Board of Trade Correspondence, etc. [Barbados],” December 19, 1673, TNA, CO 29/1, 153, “John Locke” written in margin, acting in his capacity as secretary to the Council of Foreign Plantations, over which Shaftesbury (also on Charles II’s Privy Council at that point) was then presiding, drafting a revision of the instructions to the Barbados governor that limited his ability to dismiss councilors at pleasure, required the assent of an assembly to all laws, and oversaw other changes. See also Haley, The First Earl of Shaftesbury, 185.

³⁹Locke sold those shares on June 18, 1675. “MG paid me for my stock and all went,” according to his account book in the Bodleian Library, MS. Locke c. 1, fols. 15, 22–23, and the records of the Royal African Company at the National Archives, RAC Minute Book, 8, for Shaftesbury’s subscription of £1200. Shaftesbury also was assistant governor or sub-governor of the RAC between 1665 and January 1674, when he ceased attending all meetings. James, Duke of York, attended many throughout his tenure as its governor between 1663 and 1688. Shaftesbury had more trouble divesting himself of his RAC shares than Locke; after repeated attempts that began in June 1675, he was able to divest completely only in February 1677. See RAC Minute Book, 120–131. June 1675 marks both the emergence of the Whig Party, which Shaftesbury and Locke led, and also the shift of the Royal African Company toward greater trade in people. See www.slavevoyages.org. The RAC brought 27,084 slaves into British colonies between 1675 and 1680, and even more between 1680 and 1684 (almost all to the Caribbean). On the earlier trade in many other African goods, see Davies, The Royal African Company.

⁴⁰See A Letter from a Person of Quality to His Friend in the Country (London,1675), by Shaftesbury and Locke but published anonymously. See also Locke’s Correspondence for 1675–1679, e.g., letters 306, 307, 309, 311, and 312 in de Beer, The Correspondence of John Locke, 1: 433–448. In A Letter from a Person of Quality, the two men published the proceedings of the House of Lords that criticized a law that sought oaths of absolute obedience to the king even by members of Parliament. On Shaftesbury’s imprisonment in the tower and his denied appeal for habeas corpus, see Haley, The First Earl of Shaftesbury, especially 399–440.

⁴¹Two Treatises of Government, ed. Laslett, 155, 156, preface of original edition. All subsequent citations will be to this edition, to book (first or second treatise) and paragraph, since that is standard notation in Locke scholarship and one can locate passages regardless of edition.

⁴²Orlando Patterson, Freedom in the Making of Western Culture (New York, 1991), 10.

⁴³Bracton, On the Laws and Customs of England, 2: 30: “Free men are made bond by capture.” On this issue in natural law theory, see, e.g., Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge, 1979), 3, 56, 75.

⁴⁴See Locke, “On Conquest,” in Two Treatises of Government, 2: §§183–184, 189. For the context of Patterson’s quote, see the short section entitled “On Slavery,” 2: §§22 and 23. The first words of Two Treatises, 1: §1, are an indictment of slavery: “Slavery is so vile and miserable an Estate of Man, and so directly opposite to the generous Temper and Courage of our Nation; that ’tis hardly to be conceived, that an Englishman, much less a Gentleman, should plead for’t. And truly, I should have taken Sr. Rot: Filmer’s Patriarcha as any other Treatise, which would perswade all Men, that they are Slaves, and out to be so, for [an] exercise of wit.” This launches his attack on Sir Robert Filmer’s (aka James II’s) political opinions. See also Tuck, Natural Rights Theories.

⁴⁵Two Treatises of Government, quotes from 1: §§91–92 and p. 137, preface of original edition.

⁴⁶Ibid., 1: §129.

⁴⁷See especially Macpherson, The Political Theory of Possessive Individualism. Edmund Morgan’s interpretation in American Slavery, American Freedom that slavery and hierarchy were supported by Locke’s thought was shaped by that perspective. I explore this case in depth in my book manuscript “‘Inheritable Blood’: Slavery and Sovereignty in Early America and the British Empire.” For contemporary reports of the case, see 2. Lev. 201, 83 English Reports 518, and 3 Keble 785, 84 English Reports 1011. Locke might not have heard immediately about Butts v. Penny, but he was certainly following what was going on with the Kings Bench during this period, even in France. See, for example, de Beer, The Correspondence of John Locke, 1: 446–447, letter 312, wherein his assistant Thomas Stringer reported that the former chief justice, Mathew Hale, had stepped down, and the new one, Richard Rainsford, was “sworne chief justice in his roome” in 1676. The following year, Rainsford presided over Butts v. Penny.

⁴⁸Two Treatises of Government, 1: §§41 and 87, 95, 123.

⁴⁹Ibid., 2: chap. 5, “Of Property.” See especially 2: §33: “Nor was this appropriation of any parcel of land, by improving it, any prejudice to any other man, since there was still enough and as good left, and more than the yet unprovided could use. So that, in effect, there was never the less left for others because of his enclosure for himself. For he that leaves as much as another can make use of, does as good as take nothing at all. Nobody could think himself injured by the drinking of another man, though he took a good draught, who had a whole river of the same water left him to quench his thirst. And the case of land and water, where there is enough of both, is perfectly the same.” See also see 2: §32. He emphasizes repeatedly that labor gives property rights: “’tis labour indeed that puts the difference of value on everything” (2: §40). Note how Locke specifies that in America, particularly before trade was extensive, people would produce only so much as benefited their family—though he acknowledges that with the invention of money, people could gain more property than they could use (leading to “unequal Possession of the earth” [2: §50]). He ends the chapter with this passage about property (created from labor) in the state of nature: “it was useless as well as dishonest to carve himself too much, or take more than he needed” (par. 51). On predecessors to Locke, see, e.g., Christopher Hill’s discussion of the Diggers (a radical group during the English Civil War) in Hill, ed., Winstanley: ‘The Law of Freedom’ and Other Writings (Cambridge, 2006), 24.

⁵⁰Two Treatises of Government, e.g., 2: §§44, 87, 95, 123. “Man being born, as has been proved, with a title to perfect freedom, and an uncontrouled enjoyment of all the rights and privileges of the law of nature, equally with any other man … hath by nature a power, not only to preserve his property, that is, his life, liberty and estate” (§87). Note that the first and most important kind of property that one has is in one’s own person. It is, moreover, a right that one cannot give away. It is on this point that Dunn, Farr, and Ashcraft most strongly challenge Macpherson. While I agree with Macpherson that Locke condones hierarchy when he allows the landless to work for employers who then receive the credit for and benefit of their labor, Macpherson points only toward the general acceptance of a “market in labor,” which would include slavery. This is not good history, or indeed precise philosophy. Locke cares about “consent” to labor. Macpherson contends that consent is irrelevant if the landless have no other way to survive. But consensual labor is different, still, than forced and owned labor; it is a huge issue, and one that deserves to be treated with the precision that such differences in legal and economic status have for real people. See Macpherson, The Political Theory of Possessive Individualism, e.g., 215.

⁵¹John Dunn, The Political Thought of John Locke: An Historical Account of the Argument of the “Two Treatises of Government” (Cambridge, 1969), 175 n. 4; Farr, “‘So Vile and Miserable an Estate,’” 281. Farr defends his conclusions in “Locke, Natural Law, and New World Slavery.” In order to reconcile Locke’s ideas with his supposedly problematic actions, Farr separates Locke’s ideas about political and economic slavery and uses evidence of how later defenders of slavery drew on Locke’s authorship of the Fundamental Constitutions to justify it. He concludes that Locke was complicit: “he partook of the madness of American slavery” (516).

⁵²On James II’s resignation, see Davies, The Royal African Company. For the decline in the African trade after 1690, see www.slavevoyages.org.

⁵³“An Act for suppressing outlying Slaves,” in Hening, Statutes at Large, 3: 86–88 (1691), and “An Act for the more speedy prosecution of slaves committing Capitall Crimes,” ibid., 3: 102–103 (1692). On the council’s modification of the bill “for suppressing outlying slaves,” see the council records for May 19, 1691, in H. R. McIlwaine, ed., Legislative Journals of the Council of Colonial Virginia, 3 vols. (Richmond, Va., 1918–1919), 1: 149.

⁵⁴Culpeper was from a strong royalist family. Warren Billings, ed., The Papers of Francis Howard, Baron Howard of Effingham, 1643–1695 (Richmond, Va., 1989), 35, 209, 216, 265. See also Thomas Daniel Knight, “‘That Mean Sycophant Colonel Heartless, a Worm Fit Only to Be Trod Upon’: Edmund Jenings Examined” (undergraduate honors thesis, Washington and Lee University, 1992).

⁵⁵Richard Beale Davis, ed., William Fitzhugh and His Chesapeake World, 1676–1701: The Fitzhugh Letters and Other Documents (Chapel Hill, N.C., 1963), Introduction and 174–175.

⁵⁶“Governor Sir Edward Andros to Council of Trade and Plantations,” heard March 14, 1698 (sent April 24, 1697), in Calendar of State Papers, Colonial Series: America and West Indies, vol. 16: 1697–1698, ed. J. W. Fortescue (London, 1905), 133, item 291. In 1695 Andros appointed three members of the council to assemble the laws: Secretary Wormeley, William Byrd, and Edmund Jenings. See H. R. McIlwaine, ed., The Executive Journals of the Council of Colonial Virginia, vols. 1–4 (Richmond, Va., 1925–1930), 1: 332 (March 6, 1694/1695).

⁵⁷Davis, William Fitzhugh and His Chesapeake World, 68–69.

⁵⁸As Fitzhugh wrote in 1679 to Richard Lee II (a councilor), “precipitate judgment may be given upon any Statute, without understanding the common Law … which is the only guide, & which is only to be learn’d out of antient Authors (for out of the old fields must come the new Corn).” Fitzhugh to Major Richard Lee, May 15, 1679 (his first surviving letter), in Davis, William Fitzhugh and His Chesapeake World, 65–66. His letters are full of citations to “antient Authors”: for two examples of discussions where he cited Coke’s Institutes, see ibid., 72 and 98. Littleton’s text, for example, held that when land was sold or forfeit, the villeins went with the land. They were called “regardant to a manor.” Coke upon Littleton, 121b, 122a. Another critical player in the law reform was Robert Carter, who also owned Bracton’s, Coke’s, and Sir Robert Filmer’s writings. On Robert Carter’s library, see Louis B. Wright, The First Gentlemen of Virginia: Intellectual Qualities of the Early Colonial Ruling Class (Charlottesville, Va., 1940), 261–283.

⁵⁹Davis, William Fitzhugh and His Chesapeake World, 175–176, quote from 176.

⁶⁰“Nicholas Spencer to Lords of Board and Plantations,” April 29, 1689, in Calendar of State Papers, Colonial Series: America and West Indies, vol. 13: 1689–1692, ed. J. W. Fortescue (London, 1901), 33, item 93. Richard Lee made a similar report: “Whereas many mutinous and Seditious persons were gathered together in the upper parts of Rapp[ahanock], about the beginning of Aprill, and drawing themselves into Armes … saying their was neither King, Laws nor Government.” McIlwaine, The Executive Journals of the Council of Colonial Virginia, 1: 105 (April 26, 1689) and 1: 302 (October 25, 1693), quote from 1: 302.

⁶¹The initial charges were brought against Fitzhugh in a letter from the “Governor and Councill of Maryland” to the Governor of Virginia. McIlwaine, The Executive Journals of the Council of Colonial Virginia, 1: 285 (April 29, 1693) and 1: 302 (October 25, 1693). Davis, William Fitzhugh and His Chesapeake World, especially letter to “George Luke,” Jamestown, October 27, 1690, 287. See also “Nicholas Spencer to Lords of Board and Plantations,” report dated April 29, 1689, in Fortescue, America and West Indies, 13: 33, item 93.

⁶²Parliament threatened to shift oversight of the colonies to Parliament if he did not take action. Bourne, The Life of John Locke, 2: 347–350; Peter Laslett, “John Locke, the Great Recoinage, and the Origins of the Board of Trade, 1695–1698,” William and Mary Quarterly 14, no. 3 (1957): 370–402, especially 387–389.

⁶³Locke to Somers, January 7, 1697, in Bourne, The Life of John Locke, 2: 360–361.

⁶⁴A. D. Francis, “John Methuen and the Anglo-Portuguese Treaties of 1703,” Historical Journal 3, no. 2 (1960): 103–124, here 105.

⁶⁵See Stephen Saunders Webb, “William Blathwayt, Imperial Fixer: Muddling Through to Empire, 1689–1717,” William and Mary Quarterly 26, no. 3 (1969): 373–415, especially 399.

⁶⁶“Representation of Edward Randolph as to Virginia,” received August 31, 1696, read October 6, in Fortescue, America and West Indies, 15: 88–90, item 176, quotes from 88, 89. On Randolph, see Michael Garibaldi Hall, Edward Randolph and the American Colonies, 1676–1703 (Chapel Hill, N.C., 1960). Randolph had much more influence than Blair on Locke’s Virginia plan.

⁶⁷See “William Popple to Edward Randolph,” October 6, 1696, in Fortescue, America and West Indies, 15: 172, item 300, and “A series of questions put to Edward Randolph by the Council of Trade and Plantations, with his answers,” October, ibid., 188, item 354. For originals of the queries in Locke’s handwriting, see Bodleian Library, MS. Locke c. 30: Papers relating to trade and colonies, 1671–1702, fols. 59r–60r. Note that the published version in the Calendar of State Papers abbreviates Randolph’s extremely interesting answers on this question. For his full response, see the original: “Queries Proposed by the Rt Honorable The Coms for Trade to Edward Randolph Surveyor General of his Majestys customs &c in Relacion to the Lands in the Colony of Virginia, together with his Answers thereto,” TNA, CO 5/1309, 85.

⁶⁸These queries are among Locke’s loose papers at the Bodleian. See MS. Locke e. 9: “Trade Virginia 97.”

⁶⁹Locke to William Molyneux, January 10, 1698, in de Beer, The Correspondence of John Locke, 6: 292–293, letter 2376.

⁷⁰On March 19, 1698, Locke wrote to Edward Clarke: “The weather I thank god is now become warmer … [though] I have not breath enough yet to walke.” Ibid., 6: 351, letter 2408.

⁷¹Bodleian Library, MS. Locke e. 9, fols. 1r–39r. When it was first catalogued in 1941, the Bodleian archivist assumed that it was by Locke, as did the few scholars who discovered it in the next twenty years, including Jack P. Greene in The Quest for Power: The Lower Houses of Assembly in the Southern Royal Colonies, 1689–1776 (Chapel Hill, N.C., 1963). See Long, A Summary Catalogue of the Lovelace Collection, 40.

⁷²David Thomas Konig traces the continuing struggle over land policy in “Virginia and the Imperial State: Law, Enlightenment, and ‘the Crooked Cord of Discretion,’” in David Lemmings, ed., The British and Their Laws in the Eighteenth Century (New York, 2005), 206–229.

⁷³Laslett reported finding the whole set of Virginia papers in a cubbyhole in Locke’s desk, which Locke had left to his nephew Peter King. Laslett helped Oxford acquire these papers. See Laslett, “John Locke, the Great Recoinage, and the Origins of the Board of Trade,” 399. Quote from Michael G. Kammen, ed., “Virginia at the Close of the Seventeenth Century: An Appraisal by James Blair and John Locke,” Virginia Magazine of History and Biography 74, no. 2 (1966): 141–169, here 167. The capitalization in the original (MS. Locke e. 9, fol. 32r), which was edited out by Kammen, is retained here.

⁷⁴After Kammen’s article, Richard Ashcraft, who stumbled across the sketch among Locke’s papers in 1969, attributed it to Locke. Ashcraft argued that it showed just how radical Locke was, and pointed out its similarities to the Two Treatises. But he provided no context for the sketch. His argument has been ignored by Locke scholars. Ashcraft, “Political Theory and Political Reform: John Locke’s Essay on Virginia,” Western Political Science Quarterly 22, no. 4 (1969): 742–758.See also Farr, “‘So Vile and Miserable an Estate,’” 268, which discusses it briefly.

⁷⁵In Locke: Political Essays, Goldie includes “The Fundamental Constitutions of Carolina” among Locke’s “major essays,” while not including his plan for Virginia even among the lesser writings.

⁷⁶Peter Laslett describes the Board of Trade members as all aristocrats, the image of lordly continuity and an impotent revolution: “We must imagine ten Stuart noblemen and gentlemen sitting in their silken knee breeches in front of pewter sandboxes and goose quill pens.” Laslett, “John Locke, the Great Recoinage, and the Origins of the Board of Trade,” 370. In fact, we have real portraits of most members painted by the prolific artist Sir Godfrey Kneller. Some do fit Laslett’s image. But Kneller’s painting of Locke is different. Locke is not wearing a wig, and his clothes are simple, rumpled and worn, like those worn by Kneller’s engraver (John Smith), whom Kneller painted the same year. Like Laslett, Armitage tries to portray Locke as an aristocrat, and stresses that he was appointed a landgrave in Carolina and kept the parchment with the grant. See Armitage, “John Locke, Carolina, and Two Treatises of Government.” However, Locke never used the title. He signed all documents simply “Mr. Locke.” Or “Locke.” Or “John Locke.” Those who used titles, such as his mentor Anthony Ashley Cooper, first Earl of Shaftesbury, signed themselves by their title, in his case “Shaftesbury.”

⁷⁷Bodleian Library, MS. Locke e. 9. The manuscript was published in Kammen, “Virginia at the Close of the Seventeenth Century,” quote from 148 n. 29, but Kammen attributed it almost wholly to Blair: “it has to be Blair’s composition” (147). In “John Locke, the Great Recoinage, and the Origins of the Board of Trade,” Laslett asserts that “he [Locke] made Blair write out for him a complete treatise entitled ‘Some of the Chief Grievances …’” (400) without any evidence. Laslett’s speculations can be found ibid. For Kammen’s debt to Laslett, see “Virginia at the Close of the Seventeenth Century,” 142 n. 3; for the reference to Locke and Blair’s supposed private meeting in late August, see 148 n. 29. Kammen published only the plan for law reform, but none of the additional materials that help to provide context. Kammen argued that two documents by Blair, from 1697 and 1699, were similar to the Virginia plan; however, Blair’s concerns are narrowly about the church and college.

⁷⁸Morgan, American Slavery, American Freedom, 322, 381; Bodleian Library, MS. Locke c. 30, fol. 59v, dated August 30 [1697]. For Board of Trade records, see TNA, CO 5/1309, items A-35 through A-41.

⁷⁹Blair the troublemaker appears repeatedly in the usual telling of this story. See, e.g., Blackburn, The Making of New World Slavery. See also Warren M. Billings, John E. Selby, and Thad W. Tate, Colonial Virginia: A History (White Plains, N.Y., 1986), 146–154.

⁸⁰For transcripts of Blair’s complaint against Andros and Andros’s trial in absentia at Lambeth Palace on December 27, 1697, see “A Memorial Concerning Sir Edmund Andros, Governor of Virginia, by Dr. Blair,” in William Stevens Perry, ed., Historical Collections Relating to the American Colonial Church, vol. 1: Papers Relating to the History of the Church in Virginia, A.D. 1650–1776 (n.p., 1870), 10–29; and “A True Account of a Conference at Lambeth, Dec. 27, 1697,” ibid., 36–65, transcribed from the collections at Lambeth. Blair’s long memorial against Andros, for example, contains two sections entitled “His Conduct as to the Clergy and Religion” and “Sir Edmund Andros’s Conduct with Relation to the College of William and Mary in Virginia.” While he occasionally raised issues such as corruption in tax collection or misuse of revenue, it was only because that meant lower financial support for the church and college.

⁸¹Blair’s writings contain a few points of overlap with the Virginia plan, but they were written after the plan. In 1699, for example, Blair supported baptizing slaves. See Samuel Clyde McCulloch, “James Blair’s Plan of 1699 to Reform the Clergy of Virginia,” William and Mary Quarterly, 3rd ser., 4, no. 1 (1947): 70–86. Kammen also claims that the use of “we” in the document’s list of Virginia’s problems, as in “the ministers we have,” must mean that it was written by a Virginian. But any official could have written the same thing.

⁸²Commissary James Blair to Locke, January 20, 1698, in de Beer, The Correspondence of John Locke, 6: 302–303, letter 2380. Note that the editor of Locke’s Correspondence cites Kammen to attribute the Virginia plan to Blair.

⁸³Blair had told Nicholson about Locke’s role. See Francis Nicholson to [Locke?], May 26, 1698, ibid., 6: 408–409, letter 2446.

⁸⁴See Brounower to Locke, May 7, 1698, ibid., 6: 394, letter 2434 (on Brounower’s visit and help); Blathwayt to Stepney, May 31, 1698, quoted in Webb, “William Blathwayt, Imperial Fixer,” 401.

⁸⁵Kammen, “Virginia at the Close of the Seventeenth Century,” 154–155; this part of Kammen’s transcription is largely accurate. For the original, see MS. Locke e. 9, fols. 3r–4r.

⁸⁶On the Indian land question, see especially Arneil, John Locke and America, chap. 6.

⁸⁷“Instructions to Francis Nicholson as Governor of Virginia,” September 13, 1698, in Fortescue, America and West Indies, 16: 423, item 819. This item consists of instructions to the new governor to push for a complete revision of the laws, to enforce land confiscations when quitrents are seven years or more in arrears, to report the names of persons with more than twenty thousand acres, and to set up “a new system of land-grants, founded on settlement rather than the importation of servants.”

⁸⁸Kammen, “Virginia at the Close of the Seventeenth Century,” 162.

⁸⁹John Pollexfen, A Discourse of Trade and Coyn (London, 1697), 132–133; TNA, CO 5/1359, 252–259 (original pagination). On Pollexfen’s support of the slave trade, see A Discourse of Trade and Coyn, 128–129. Meadows had also been Cromwell’s “Latin secretary.” His two treatises were Observations concerning the Dominion and Sovereignty of the Seas: Being an Abstract of the Marine Affairs of England ([London], 1689) and A Brief Enquiry into Leagues and Confederacies Made betwixt Princes and Nations, with the Nature of Their Obligation (London, 1682). In Competing Visions of Empire, 171, Abigail Swingen argues that the Glorious Revolution represented no shift in policy because of a single document she found at the British Library (“Copy of a Representation of ye Commissioners for Trade & Plantations Relating to ye General State of the Trade of This Kingdom,” BL ADD MS 46542), dated December 23, 1697. It recommends that “the labor of negroes” be supplied to the colonies “at the cheapest rates,” as they were good for trade. It was signed by three board members, Stepney, the Earl of Tankerville, and Blathwayt, who later refused to sign the instructions, as well as four of the five listed above who did sign them—all but Locke, who was away at Oates. The document stated nothing about the status of “the labor of negroes” and never used the word “slave,” no doubt an avoidance of the issues—“slaves” is a word that Swingen imposes on it.

⁹⁰Blathwayt to Stepney, May 31, 1698, and Stepney to Blathwayt, written when the report was unfinished but upon news that it was in the works, January 14 and 24, 1698, quoted in Webb, “William Blathwayt, Imperial Fixer,” 401, 405.

⁹¹“To their Excellencies the Lords Justices,” cover letter justifying the major changes these five members of the board had made in the former instructions that were given to Virginia governors, TNA, CO 5/1359, especially 256.

⁹²There are thus two versions of the instructions to Governor Nicholson, dated August 23 and September 13, 1698. The first, signed by Locke and discussed above, subtly introduced key reforms from his Virginia sketch—explaining some of the motivations and masking others. It was addressed to the Lords Justices. The second, signed by those justices, added instructions—to protect the interests of the Royal African Company and to enforce the new law of 1698, “An Act to Settle ye Trade with Africa.” TNA, CO 5/1359, especially 252–259. For some background on the first of these debates, see Pettigrew, “Free to Enslave.” While Pettigrew suggests that this means that liberalism and free trade should be equated with slavery and by implication with Locke, there is no evidence that Locke supported either free trade or the RAC. Pettigrew toned down his critique of Locke, but not of liberalism, in his subsequent book, Freedom’s Debt, after reading an earlier version of this article on Locke.

⁹³Bourne, The Life of John Locke, 2: 360, 358–359.

⁹⁴Commissary James Blair to Locke, February 8, 1699, in de Beer, The Correspondence of John Locke, 6: 560, letter 2545.

⁹⁵Locke to Commissary James Blair, October 16, 1699, ibid., 6: 706, letter 2626.

⁹⁶Nicholson is a complex figure in this story, and certainly politically astute. Like Blair, he tends to be portrayed as an opportunist, and if anything one perhaps more sympathetic to the Stuarts. Yet throughout the documents after the Glorious Revolution, he was playing the game that the Board of Trade after 1696 wanted to see. He was briefly lieutenant governor of Virginia between 1690 and 1692, when William replaced him with Edmund Andros, apparently as a compromise with Tories in England. Later, it was Nicholson who reported that Andros did not enforce the taking of oaths to William and Mary. During his brief governorship, Nicholson had enforced such oath-taking, as is clear from the records of the House of Burgesses. Richard Lee refused to take the oath and thus did not attend council meetings for a year (until Andros became governor and stopped requiring it). Nicholson’s correspondence with the Board of Trade from 1697 is also sharply critical of Andros, and he allied himself closely with Blair and Locke, advocating reforms in land policy. For the earlier interpretations of Nicholson, see particularly Stephen Saunders Webb, “The Strange Career of Francis Nicholson,” William and Mary Quarterly, 3rd ser., 23, no. 4 (1966): 513–548; and Kevin R. Hardwick, “Narratives of Villainy and Virtue: Governor Francis Nicholson and the Character of the Good Ruler in Early Virginia,” Journal of Southern History 72, no. 1 (2006): 39–74. Hardwick takes the criticisms of Nicholson more at face value, while I see them more as attempts to discredit him as a result of the reforms he was attempting to implement under the Williamite administration. After the shift in power in England, many elite Virginians seized their chance. Blair opposed Nicholson by 1704, due to his insufficient support of the church.

⁹⁷“Instructions to Francis Nicholson as Governor of Virginia”; “At a Councill Held at James Citty the Fifteenth day of Aprill 1699,” in McIlwaine, The Executive Journals of the Council of Colonial Virginia, 1: 420; Nicholson to Board of Trade, July 1, 1699, TNA, CO 5/1310, item C2, also transcribed in CO 5/1360. For the detailed case report from Nicholson, see “At a Generall Court held at James City on the fifteenth day of April in the eleventh yeare of the Reigne of Our Sovereigne Lord William the Third by the Grace of God of England, Scotland, France & Ireland” [hereafter the William Miller case], CO 5/1310, item C13, at fol. 55 (pasted into a book). Parent, Foul Means, 45, speculates that perhaps the great planters acceded to it in order to forestall the other reforms the Board of Trade proposed, which I would agree with, and perhaps that the elite wanted the reform, which I find much less persuasive given how adamantly the council members struggled to regain this right between then and 1706, when they finally re-secured it. Farr is the only scholar to take Locke’s involvement in the Virginia law reform seriously when it comes to slavery. However, he did not have the full context to realize what was really going on in the instructions to Governor Nicholson. Farr assumes that the standard request to tally the population (including “negro servants”) supported slavery and (following Laslett) that Locke wrote the clauses in the instructions to support the Royal African Company (which he did not, as shown above). Farr, “‘So Vile and Miserable an Estate,’” 268–269; Two Treatises of Government, 284 n. 24.

⁹⁸William Miller case; MS. Locke e. 9, fol. 21. The fuller quote is “Men that are under strong temptations to a bypass in giveing their opinion by reason of the places of proffit they hold dureing the Governours pleasure, who is always there and by his great power, can easily run down the barr, and sway the bench, and direct the Judgement what way he pleases.”

⁹⁹TNA, CO 5/1310, 8 (old pagination).

¹⁰⁰Official Board of Trade documents signed by Locke refer to blacks as servants or “negro servants.” They never use the word “slave” to refer to Africans who labored for English masters in the Caribbean. Some of the correspondence that Locke signed while secretary to the Council of Foreign Plantations in the early 1670s did use that word, however. See the ProQuest Colonial State Papers, a subscription database that, while huge and imperfect, is text-searchable and contains digital images of the calendar as well as some transcriptions and PDFs of some of the original documents. My conclusion comes from the many searches I have done for terms such as “Locke” and “slave” in these documents, as well as my own reading of many manuscripts in the original at the National Archives.

¹⁰¹Chamberlain v. Harvey, reported widely, but see, e.g., Carthew 396, 90 English Reports 830, and 1 Ld. Raymond, 91 English Reports 994. Given Locke’s closeness to his kinsman Peter King, then a law student at the Inns of Court in London, as well as his own position, it is difficult to imagine that he did not know it. The question of repugnancy is complex, but constantly invoked in Board of Trade correspondence. There will be more on its practical impact across the empire in my book in progress, “‘Inheritable Blood.’”

¹⁰²“Andros’ laws,” sent in late June 1698, TNA, CO 5/1378, 148–150. The volume is organized chronologically by the year in which each law was passed and in the order in which they were passed. The 1662 law that made slavery hereditary is described as “An Act for Mulatto Children being bond or free to serve according to the condition of the Mother,” but is without text. Noted in the margin next to it is “repealed by 1. Act of 24 September 1696.”

¹⁰³Ibid., e.g., 107, 134. Robin Blackburn alleges that Locke approved the 1691 Virginia law that sentenced mulatto children to thirty-one years of servitude without citing any evidence. Yet Locke had no oversight over colonial laws until 1696. Blackburn, The Making of New World Slavery, 264–265.

¹⁰⁴“Andros’ laws,” 148–150.

¹⁰⁵Kammen, “Virginia at the Close of the Seventeenth Century,” 159, and MS. Locke e. 9, fol. 13. Locke was sometimes torn between different principles, such as here between liberty of conscience and inclusion as subjects with rights. In this case he was privileging the latter as more important for the children of Africans: given that English common law maintained that subjects had to be Christian—because only Christians could take the oath of allegiance to the king that made them subjects—and that only subjects could safely claim rights, it was a delicate issue. I explore it at length in Holly Brewer, “Subjects by Allegiance to the King? Debating Status and Power for Subjects—and Slaves—through the Religious Debates of the Early British Atlantic,” in Peter Thompson and Peter S. Onuf, eds., State and Citizen: British America and the Early United States (Charlottesville, Va., 2013), 25–51. Locke’s dilemma (baptism versus toleration) was a terrible one for him, especially since many of his philosophical ideas emerged from and were part of religious debates. “Theological commitments,” as Dunn noted, were integral to all of Locke’s philosophy. See Dunn, The Political Thought of John Locke, xi; more comprehensively, see Jeremy Waldron, God, Locke, and Equality: Christian Foundations in Locke’s Political Thought (Cambridge, 2002), who argues that many of Locke’s central premises, including his basic principles of human equality, had religious foundations.

¹⁰⁶Kammen, “Virginia at the Close of the Seventeenth Century,” 167; MS. Locke e. 9, fol. 32.

¹⁰⁷See Martínez, Genealogical Fictions.

¹⁰⁸Kammen, “Virginia at the Close of the Seventeenth Century,” 158. His suggestion encouraged a nascent British policy. About 50,000 people reprieved from the hangman’s rope were sent to the colonies in the eighteenth century. See, e.g., Peter Wilson Coldham, Emigrants in Chains: A Social History of Forced Emigration to the Americas of Felons, Destitute Children, Political and Religious Non-Conformists, Vagabonds, Beggars and Other Undesirables, 1607–1776 (Baltimore, 1992).

¹⁰⁹Locke did send suggestions to his cousin Peter King and to Edward Clarke. For King, see Bourne, The Life of John Locke, 2: 450–453, 501–510. For Clarke, see especially Mark Knights, “John Locke and Post-Revolutionary Politics: Electoral Reform and the Franchise,” Past and Present 213 (November 2011): 41–86, which uses a draft bill among Clarke’s papers to argue that Locke sought to extend the franchise in 1689 to all those who paid church tithes to support the poor, an expansion of the franchise in most boroughs.

¹¹⁰Laslett ends “John Locke, the Great Recoinage, and the Origins of the Board of Trade” with a quotation from Edmund Burke mocking the Board of Trade. Given Burke’s power over the revisionist historiography of the Glorious Revolution, it is clear that Laslett understood what was at stake in attributing and parsing Locke’s role. For a discussion of Burke’s role in recasting the character of the Glorious Revolution to make it conservative, see Steven C. A. Pincus, ed., England’s Glorious Revolution, 1688–1689: A Brief History with Documents (New York, 2006), which relates the historiography through the primary sources. See especially Colley Cibber, “Memoir of the Revolution, 1740,” 48–49, and Edmund Burke, “The Significance of the Revolution of 1688–1689, 1790,” 52–54. Cibber wrote: “to the revolution only we owe the full possession of what ’till then we never had more than a perpetually contested right to.” See also Pincus, 1688: The First Modern Revolution (New Haven, Conn., 2011), which also focuses on the year 1696 as a period of greater reforms. Lois G. Schwoerer’s work on legal change after the Glorious Revolution has long acknowledged its significant reforms. See particularly her The Declaration of Rights, 1689 (Baltimore, 1981).

¹¹¹Nicholson to the Board of Trade, August 27, 1700, TNA, CO 5/1310.

¹¹²In Freedom’s Debt, Will Pettigrew uses the database to argue for an increase in slave imports to the colonies after 1698. But the database cites only tax records for the imports of other goods! We have no solid data for slave imports because they were not taxed. For an example of the tax records, see, e.g., TNA, T 70/350, which covers 1699–1700. The fact that the database relies on estimates can be seen in the repetition of impossibly consistent numbers of slaves imported and deceased on each ship, for many voyages during this period.

¹¹³Byrd’s manuscript notes on the speeches he gave to the Privy Council and other official bodies (including his testimony defending Andros before the Archbishop of Canterbury) are in the R. A. Brock Collection at the Huntington Library, MSS BR 744, quotes from 13, 14. Byrd was upset that the French had confiscated a British ship involved in the slave trade. He wrote: “the most beneficial part of the Negro Trade and the main profit of the Assiento Contract will be given up if the French be suffered to carry this pretension to the apparent prejudice of Great Britain,” and that unless Britain could obtain the Assiento contract from them, the English would “suffer by ye necessity of paying Dearere for Negroes than they may have them for at this place, and ye French Colonys will flourish and inspire by a Cheap and plentifull supply of Servants—which at present is ye greatest want they have in America.” Since the next item is the vindication of Edmund Andros, it must be from late 1697.

¹¹⁴See Daily Courant, London, Wednesday, December 10, 1712, issue 3483, which reprinted the full text of the Assiento that Queen Anne obtained from the French.

¹¹⁵Journal of the Commissioners for Trade and Plantations, vol. 1: From April 1704 to February 1708/9 (London, 1920), especially 4, 36, 54, 89.

¹¹⁶“In this bill the Lords Commissioners for trade were pleased to propose the following Restrictions first that no person should acquire a Right to take up land for importation, but the person imported, 2ndly that no greater quantity of Land should be allowed to any one person than 400 acres[,] 3dly that every person takeing up land should plant and tend 3 acres of land for every 50 acres taken up.” Such guidelines were meant to encourage more equitable landownership among a greater population. The Virginia Council refused them, responding that “to encourage a man to Settle at first with a prospect of advancing his fortune by his industry,” they wanted to encourage him to buy “tithables,” which is to say taxable slaves and servants. They then launched into an explanation about how tobacco wears out the land, and so each proprietor needs many acres. They conclude, “the Council are humbly of opinion that [the third condition] is impracticable and had it been put in the bill would have been equal to a prohibition to take up land for none would ever have taken up on those terms.” McIlwaine, The Executive Journals of the Council of Colonial Virginia, vol. 3: May 1, 1705–October 23, 1721 (Richmond, Va., 1928), 107 (June 20, 1706). For examples of the hunger of poor men for lands, see the petitions surrounding the surveying and deeding of the lands in the Pumunkey [Pamunkey] Neck in TNA, CO 5/1315, pt. 2, e.g., 179 (these are from late 1705/early 1706). Many people who were eager to have land in quantities of fifty or one hundred acres were removed from such parcels (which they had squatted on and were attempting to claim) by Major Thomas Swan, the surveyor. While tobacco did exhaust the soil, “manuring” or fertilizing as was done in contemporary Barbados and England was an easy option; those on large estates often left vast areas uncultivated.

¹¹⁷“An Act concerning the Granting, Seating, and Planting, and for Settling the Titles and bounds of Lands; and for preventing unlawful Shooting and ranging thereupon,” in Hening, Statutes at Large, 3: 304–329 (October 1705, but really 1706), here 304–306. The law also barred land patents of more than five hundred acres to anyone who did not own five servants or slaves—meaning quite literally that no one could have a large estate who did not own slaves. “That there shall not hereafter be granted to any person or persons not being owner or owners of five tithable servants or slaves at least, any greater quantity of land in one tract than five hundred acres. [And with regard to all those who meet such a requirement of five servants/slaves,] there shall be granted unto such person or persons over and above the said five hundred acres, the quantity of two hundred acres more for every tithable servant or slave, which he or they shall prove him or themselves to be owners of” (306).

¹¹⁸Hening, Statutes at Large 3: 298 (clause 30) and 3: 461 (clause 38). Both laws are listed by Hening as originating in 1705, but really originated in 1706, as the manuscript records show. For what such reimbursements to masters for executed slaves meant in practice, see Philip J. Schwarz, Twice Condemned: Slaves and the Criminal Laws of Virginia, 1705–1865 (Baton Rouge, La., 1988). It enabled a draconian system of punishment.

¹¹⁹“An act declaring the Negro, Mulatto, and Indian slaves within this dominion, to be real estate,” in Hening, Statutes at Large, 3: 333–335 (October 1705, but really 1706). Note that although the act allowed the oldest son to inherit all slaves, it made him pay the other children for the value of the slaves that would formerly have been their share. This appears to have been a compromise between different factions in the House of Burgesses.

¹²⁰Since there were no formal censuses, these statistics are estimates based on wills and taxes called tithes collected on all men over sixteen and on enslaved men and women over sixteen. This data comes from solid estimates by Peter H. Wood and by Philip Morgan and Michael Nicholls. Wood, “The Changing Population of the Colonial South: An Overview by Race and Religion, 1685–1790,” in Gregory A. Waselkov, Peter H. Wood, and Tom Hatley, eds., Powhatan’s Mantle: Indians in the Colonial Southeast, Revised and Expanded Edition (Lincoln, Nebr., 2006), 57–132, here 60 (Table 1). Wood estimates that 5,500 out of 61,600 were black, or 9 percent of the population; almost all would be considered slaves in some form. By 1755, according to Morgan and Nicholls’s evaluations of wills, 66 percent of the population in the Tidewater area of Virginia was enslaved. On the other hand, the total population of enslaved Virginians was lower, particularly due to their low populations in the backcountry. By 1775, Wood estimates it at 40 percent overall. Morgan and Nicholls, “Slaves in Piedmont Virginia, 1720–1790,” William and Mary Quarterly 46, no. 2 (1989): 211–251, here 218; Wood, “The Changing Population of the Colonial South,” 60 (Table 1). See also Jordan, White over Black; Parent, Foul Means. For the “terrible transformation,” see Wood, Africans in Colonial America.

¹²¹On the question of the radicalism of the Glorious Revolution, see particularly Pincus, 1688. He is much less concerned, in his focus in that book, with questions of rights, and even less so with the empire. In one crucial respect, the stories we are telling overlap; as Pincus notes, it was only after 1696 that the full impact of the revolution began to be felt.

¹²²Holly Brewer, “Entailing Aristocracy in Colonial Virginia: ‘Ancient Feudal Restraints’ and Revolutionary Reform,” William and Mary Quarterly 54, no. 2 (1997): 307–346; Brewer, “Tocqueville as Historian of the Struggle between Democracy and Aristocracy in America,” Tocqueville Review 27, no. 2 (2006): 381–402.

¹²³“Jefferson's ‘original Rough draught’ of the Declaration of Independence, 11 June–4 July 1776,” in Papers of Thomas Jefferson, vol. 1: 14 January 1760 to 25 December 1776, ed. Julian P. Boyd (Princeton, N.J., 1950), 423–428, here 426.

¹²⁴I do not mean that the Stuarts ever achieved complete absolutist rule, simply that their principles supported it, and they (especially James II) pursued it in practice. In the royal colonies, which were under their jurisdiction, they were better able to pursue such policies. Perry Anderson, in Lineages of the Absolutist State (London, 1974), also complicates the connections between feudalism and capitalism, emphasizing the emergence of such principles and policies jointly in England and France during the early modern era. Just because I acknowledge these feudal roots does not mean that I agree with the Genoveses’ portrayal of slavery as benevolent paternalism in, for example, their The Mind of the Master Class. Instead, I argue that feudal legal precedents were one of the building blocks of a far more comprehensive slavery.

¹²⁵Abraham Lincoln, reply to Stephen A. Douglas, “The Last Joint Debate, at Alton, October 15, 1858,” in Political Debates between Abraham Lincoln and Stephen A. Douglas in the Celebrated Campaign of 1858 in Illinois (Cleveland, Ohio, 1894), 253–282, here 275–276.

¹²⁶See, e.g., Alex Lichtenstein, Twice the Work of Free Labor: The Political Economy of Convict Labor in the New South (New York, 1996); David M. Oshinsky, “Worse than Slavery”: Parchman Farm and the Ordeal of Jim Crow Justice (New York, 1997); Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York, 2012).