Historians have long since agreed that slavery was central to the social, economic, and political life of the English-speaking North American colonies, and then early United States. Yet the origins of North American slavery have remained far less clear. Holly Brewer's article, “Creating a Common Law of Slavery for England and its New World Empire,” which appeared in a recent issue of Law and History Review, attempted to clarify one key question within this puzzle. Did judges and legislatures in the colonies create their own institution of slavery? Or did they borrow from English precedent? For Brewer, the answer is clear: seventeenth and eighteenth century English judges, merchants, and others, in tandem with “crown policy,” built the institution of slavery that would be “a foundation for a common law of slavery in all English colonies and for the slave trade.” Slavery, in other words, was legal in England before the Somerset decision. It would thus be legal in the British Empire.Footnote ¹

Brewer's sweeping argument, based on meticulous research in English case law and other sources, has understandably caught the interest of scholars working at the intersection of several fields. Above all, scholars interested in the legal history of the British Empire have identified the importance of Brewer's piece. Given the impact of Brewer's article, Law and History Review invited two scholars to offer their reflections on Brewer's main questions and conclusions.

In her response, Dana Y. Rabin recognizes the significance of Brewer's intervention. However, Rabin suggests that scholars should turn to understand why the scholars of the British Empire have constructed a historiography that has emphasized the antislavery bona fides of Britain's imperial past. Rabin argues that “this is more than a historiographic accident,” and exhorts historians to continue investigating how and why this has come to pass. Rabin also suggests that scholars seeking to build on Brewer's insight should turn their attention to the contributions of the enslaved themselves, “whose constant resistance and attempts to free themselves” sparked and sustained antislavery in England and beyond.Footnote ²

Asheesh Kapur Siddique's commentary turns to the question of the “feudal” foundations of “the legal categories that Brewer argues came to shape the early modern law of slavery” and that have, in a historiographic sense, obscured these very origins. Siddique counsels scholars to engage with a vibrant historiography of medieval legal history in order to see how “feudal” and “feudalism” have been enrolled in ideological projects to legitimate slavery. On a broader register, Siddique's reflections make a valuable methodological point about the importance of legal vernacular: precedent matters, of course, but the words deployed to form these precedents have their own histories. For Siddique, Brewer's article underscores the importance of this approach, while also serving as a guide for scholars to continue to explore the origins of the power relations that undergirded colonial slavery in North America.