Introduction

Summary

This study’s introduction presents a new way of understanding the development of slave law in plantation America. Rather than viewing slave law as an aberration or a unique colonial development, I argue that it was a natural outgrowth of an early modern English legal system that was built around procedures, forms, categories, and concepts. English men and women did not think of “law” as a creature of substance, as we do. Rather, they encountered “law” first and foremost as a set of practices and procedures. This owed much to the early development of English common law, which coalesced around a set of formal procedures and rules administered by the King’s central courts in Westminster. Among the most important of these was the writ system, which gave litigants access to remedies in the Court of Common Pleas and the Court of King’s Bench. Because the formulae of most writs had congealed by the thirteenth century, litigants could only seek relief at common law if they could fit a complaint within a preexisting writ form. The resulting reification of form had significant legal and cultural consequences. Most importantly for our purposes, it transformed procedure into a site of innovation. Although we tend to associate procedure with rigidity, early modern litigants, advocates, and judges learned to work within English law’s extant procedural parameters in order to accomplish their particular legal goals. By deploying legal fictions and expanding older categories, they found ways to make new facts fit old forms.