Seventeenth-Century Jurists, Roman Law, and the Law of Slavery

Issues of slavery and slave law were of considerable theoretical interest to continental European jurists in the seventeenth century. They lived in a different world from American colonists of European descent because they had no direct experience of slave holding and no immediate financial involvement. Their interest stemmed from the fact that their education was in Roman law; and not only was Roman law the most revered system, but slaves were prominent in it. For the jurists\u27 attitudes we must remember that, at least in theory, there were no slaves in territories such as the Dutch Republic, Germany, or France. (What slaves there were were the innocuous domestic servants of colonists back for a visit.) The writings of the jurists had implications for slavery in the Americas partly because their views might be translated into actual law, but mainly because respect for these jurists could influence contemporary and later opinion on theoretical issues of the morality -- or otherwise -- of slave holding. This theoretical opinion could then have practical implications. We must not forget that since these jurists wrote mainly in Latin, a language which a large proportion of the educated understood, their ideas could have an impact across local, national and continental boundaries. In this paper I will not expressly consider the impact of juristic writing on slavery in the Americas. Rather, I wish to consider aspects of the intellectual “baggage” that some jurists of the seventeenth century themselves brought to the task of framing their opinions. Scholars do not develop their theories just as they like, in isolation: they are also bound by what they know and what they do not know, by what they have read and what they cannot read, by the intellectual cultural tradition in which they work, and by the outside world. I will not stress the idiosyncracies of individuals, but what the jurists of the time had in common, as part of their heritage. A prime purpose of this paper is, in fact, to alert scholars of American slavery to this common, European, legal heritage