Cecilia A. Green

"A Civil Inconvenience"? The Vexed Question of Slave Marriage in the British West Indies

This article revisits the debates on the question of slave marriage that were carried on for roughly two centuries, both back and forth across the Atlantic and on the local terrain of the British West Indian plantation colonies. These debates came into critical focus during the fifty-year showdown over "amelioration," which ended—though only in a manner of speaking—with the British Abolition Act of 1833. For a long time the lines were starkly drawn, but, in the context of laissez-faire political imperium or "indirect rule," seldom tested. The metropolitan authorities felt some obligation to uphold the grand moral and civilizational integrity of the as-yet imperfectly imagined British Empire, as well as of Western Christendom. They, therefore, were inclined to see the slave as a species of imperial subject, still vaguely conceived within the emerging terms of reference of their global trusteeship and presumptive legal jurisdiction. They felt that, to honor the dignity of the latter, and sustain and nurture its moral legitimacy, the slaves—their subjects, ultimately—should be encouraged to marry, and their marriages should be formally marked, if only symbolically or by summary Christian rite. The planters, for their part, were unshaken in their certitude that the slaves were a species of property, their property no less, and that the idea of any kind of formal marriage among them was preposterous, a great impertinence, an attack on their authority and rights of property, a threat to public safety, and a dangerous intrusion upon the sacrosanctity of European racial exclusivity and superiority.	1
The metropolitan authorities, both civil and religious, periodically urged them to reconsider this position. The planter-legislators refused, amidst great remonstrations of outrage at this unholy threat to their property rights, their property values, and their self-legislating privileges. For well over a hundred years, the metropolitan authorities declined to press their case, yielding before the sovereignty of those property rights and the chartered constitutional authority of self-governing "free-born Britons" in the colonies. The truth is, they were primarily concerned with the enforcement of the Navigation Acts, which gave Britain exclusive control of West Indian trade, shipping, financing, and markets; and they rested secure in the knowledge that the West Indians, for all their bravado, were incapable of extricating themselves from this dependency. In the meantime, the sexual, household, and family practices of both settlers and enslaved defied all pious injunctions and wishful thinking about respectability, moral propriety, and Christian monogamy—but, they did so for very different, albeit mutually constituted, reasons.	2
What were the issues involved in this question of slave marriage, with respect to both public discourse and material interests? Who were the interested parties or stakeholders weighing in on the conversation? Where were they located in the complex web of empire and colony? What arguments, what regimes of truth, what discursive practices did these various parties employ and deploy? What was the nature of the disjuncture between discourse and practice, and, as with all such disjunctures, what was the hidden sub-text, the unspoken dimension, that occupied the gap and provided the key integrating principle "in the final instance"? What changes occurred in the terms of debate and the policies regarding slave marriage over those last fifty or so years, and what shifts in political economy and imperial interests were responsible for these changes? Finally, what impact did all of this have on the enslaved themselves, the subject matter of the debate but entirely excluded as participants from its deliberations?	3
This article addresses all these questions through the presentation of a particularly relevant historical case. I use this case as a platform from which to consider the larger picture of contending worldviews and material interests, socio-spatial relations, legal and statutory developments, de facto socio-sexual regimes and practices, and historical and political-economic context and change. The foregrounded question is the one that inquires into and interrogates the nature of the arguments, regimes of truth, and discursive practices that were mobilized and produced in the longstanding debates over slave marriage. These were debates that took place among the powerful, and so this article privileges their voices as the primary object of study. However, it considers these discourses as both reflective and constitutive, in part, of the mutual statuses and identities of the enunciators and the "other" of their enunciations. Moreover, it attempts, tentatively, to suggest some modalities through which the "other" may have talked back on this question, to both pro- and anti-slavery elites.	4
The historical instance that leads to the wider discussion is a series of pointed epistolary communications on slave marriage initiated by Rev. John Stephen, an Anglican rector in the British colony of the Bahamas. From 1814 to 1817 the communication between Stephen and local officials took a weighty philosophical and jurisprudential turn when Stephen felt compelled to respectfully challenge the policies, practices, and legal rationale regarding slave marriage in the Bahamas and the rest of the British West Indies and to offer as counterpoint a lengthy, erudite, rhetorically contentious, and wide-ranging opinion on the matter.	5
The letter in which Stephen pleads his case is a remarkable and important historical document.¹ Despite carrying no official weight and ultimately having only academic import, it elicited solemn legal interpretations and pronouncements from the highest local and metropolitan authorities, among them Attorney General of the Bahamas, William Wylly, and Secretary of State Earl Bathurst of Downing Street.² These responses add greatly to its historical significance, since they demonstrate the unsettled nature of relations between metropole and colony, the tenuousness of the project of empire with regard to statutory and executory terms of reference, the contradictions among law, policy, and practice, and the gap between the rarefied field of official discourse, particularly as conveyed through transatlantic circuits, and the viscerally lived reality of resident master/mistress-enslaved relations.	6
Indeed, absent from the three-way conversation among local Established Church ministers, local state officials, and metropolitan authorities were the central parties to the relation under scrutiny, that between master and slave (not to speak of the absence of white women, which had its own complications). Slave-owning interests were not entirely absent, but they did not have explicit representation in this particular discussion, which, after all, was calling into question traditional proscriptions to which they were sworn, in a space away from the charged arena of local politics. This was a conversation among "officials" or "functionaries" of church and state, representing a dimension of colonial governance that was becoming increasingly important in the period.³	7
There is no mention of Rev. John Stephen in any of the major recent histories of the Bahamas, and his personal biography remains a mystery.⁴ However, he has left us a fascinating bricolage of his thinking on the question of slave marriage and related matters. His contribution to this article lies in his detailed and revealing representation of a particular worldview, one that saw no immanent contradiction between slavery and Christianity, and indeed saw their historical coincidence as a divine opportunity for the tutelage of savage heathens. It was on this basis and on his faith in the disciplinary regime of the patriarchal family, conceived as a hierarchical and orderly chain of relations beginning with the master as supreme but benign paterfamilias, that he supported marriage rights for the enslaved. He blamed the licentiousness of the social order in the West Indies on the failure of the slaveowners to allow and encourage Christian marriage among their slaves, which alone would provide the necessary social restraints, on women and blacks, for the development of a moral society. Stephen greatly admired the late Dr. Beilby Porteus, a rare upper-rank Anglican evangelical widely credited with enlightened views (thereby earning the respect of some and the animus of others), who had been appointed Bishop of London in 1787 and had actively promoted Christianization of the "Empire's negroes" and humanitarian missionary work among them. Porteus urged an expansion of the sphere of entitlements and rights of the enslaved, among them marriage and biblical instruction, and in turn enjoined the latter—including those owned by the church's missionary wing in Barbados—to obey their masters.	8
Stephen's times were dominated by the emerging prominence of the humanitarian movement and the Colonial Office's amelioration campaign. In 1814, when he wrote his first appeal regarding slave marriage, serious missionary work had barely taken root in most islands of the West Indies. The belated project of mass Christianization of the slaves was almost single-handedly undertaken by the dissenting or nonconformist missionaries in the period after 1790.⁵ Throughout the era of slavery, the Anglican Church had remained firmly politically allied with the planter class, at whose pleasure they officiated, and its ministers engaged freely in both slaveholding and politics as assemblymen or officials.	9
Things heated up considerably from the year 1823, which was a turning point in the struggle for amelioration and toward abolition. That year, the abolitionists, under their parliamentary leadership, launched their campaign for the gradual abolition of slavery. The imperial government, in consultation with the London-based West India Committee who supported amelioration out of enlightened self-interest, submitted their own amelioration proposals for the consideration of the West Indian assemblies. The slaveowners regarded this as a declaration of war, especially since the stated goal of the program, meant as a preemptive strike against the abolitionist cause, was to prepare the enslaved for the "civil rights and privileges which are enjoyed by other classes of His Majesty's subjects."⁶ They were also under assault from another front: armed rebellion by the enslaved. Within fifteen years of Stephen's grand disquisition on slave marriage there would be three major slave rebellions in Britain's most important Caribbean sugar colonies: in 1816 in Barbados, in 1823 in Demerara, and in 1831 in Jamaica.	10
Also in 1823, the Baptist and Wesleyan parent bodies in London voted to support the abolitionist campaign. At first, the missionaries in the field balked at the pressure to adopt an anti-slavery agenda under which they felt this decision placed them.⁷ Despite the mandate of neutrality officially maintained by the missionary wings of both churches, the Wesleyan missionaries in Jamaica felt sufficiently intimidated (and sufficiently anxious to ingratiate themselves with the planters) to sign a public repudiation of the anti-slavery cause. Outrage at headquarters regarding this unprincipled and defiant move prompted a change in missions policy. Missionaries sent out after 1825 were armed with a new mandate that unequivocally confirmed the incompatibility between Christianity and slavery. In the acrimonious and sometimes bloody struggle over the religious rights of the missionaries and the enslaved that ensued, the missionaries were facilitated by the support of their parent organizations as well as by the officially declared metropolitan policy of amelioration and the laws of religious toleration.⁸ In Jamaica, the anti-sectarian, pro-slavery faction was led by a fanatical Anglican clergyman, Rev. George Wilson Bridges, rector of the parish of St. Ann. Everywhere in the West Indies, the final struggle over amelioration, which was also a struggle to determine how much longer slavery should be allowed to continue, featured some of the most unmitigated and vitriolic verbal attacks on the humanity of the enslaved Africans that have come to light.	11

Understanding the Context of the Debate Discursively
In following Stephen's ruminations below, it is necessary to bear in mind the fundamental precepts binding the analysis offered in this article, and through which these ruminations are being read. I argue that the question of "slave marriage" was central to the question of "slave status" and that the question of the status of the enslaved depended on three sets of interlinked relations and their mediated outcomes: (a) the relation between colony and metropole, or relations of empire and colonial rule, (b) the relation between (European) master and (African) slave, or relations of (racialized) slavery, and (c) relations of patriarchy, both familial and extra-familial, private and public, religious and secular. These relations ultimately determined the answer to the following question: What kind of "other" was the enslaved and/or colonized African going to be—an incorporated but differently subjectified other or an excluded and objectified other?	12
It is by refocusing interstitially on the submerged dimensions of race/nation, class, and gender that we are able to see beyond and read through the voices of elite white men locked in struggle with one another and to do so without trivializing their differences or underestimating their impact on and relation to those whose warm bodies were absent from the ring. In focusing largely on the hegemonic publics that constituted the space of the "ring," this article also delimits that space and attempts to sound the echoes of voices coming from beyond, from those other spaces, which remained an integral part of the de facto British empire, but were never represented in its public accounting of itself except as the unspeakable other or the masked, mimetic other.	13
Beyond various degrees of anti-slavery, there was still colonialism, ethnocentrism/racism, and patriarchy, the rule of white European men, white European spaces, and white European institutions. Moreover, the abolitionist struggle was coincident with, indeed reflective of, the growing ascendancy of an industrial bourgeoisie and the new class regime connected with it at home. Simply put, the abolitionist crusaders were against slavery; they were not against empire or patriarchy, especially in its new and "progressive" bourgeois forms. So, in the debate on slave marriage, the grand assumptions of these intersecting systems remained largely unquestioned. Not unexpectedly, the contradictions they represented were upstaged by the shriller questions coming from the slaveowners regarding the basic humanity of the enslaved and their capacity to uphold the dignity of the rights being proposed for them or perform the obligations attached to those rights. In any event, the missionaries and abolitionists were becoming irresistible to growing numbers of the enslaved, in their strange and glorious assertion of the brotherhood of man and the universal perfectibility of the human personality through self-willed spiritual and moral redemption and manly individualism and self-reliance. Still, the tension in nonconformist and abolitionist missionary discourse and practice between an emancipationist ontology and a peculiarly Euro-Christian/bourgeois/patriarchal theology and morality erupted time and time again in actual dealings with the enslaved. For the latter, the encounter with Euro-Christianity, which condemned their own practices as heathenish and sinful, was both profoundly attractive and profoundly repulsive.	14
To make sense of the arguments, regimes of truth, and discursive strategies employed by the sparring protagonists in the "official" struggle over slave marriage, it is necessary to place them in relational context. Increasingly, "first world" scholarship is coming to understand this principle that has nurtured Caribbean scholarship from its inception, that is, "[t]he imperative of placing colony and metropole in one analytic frame."⁹	15
Metropolitans and colonists were divided from each other not just by the politics of (embodied) property and remote governance, but also by the politics of spatial identity and racial demography. In the metropole-colony connection, white West Indians saw themselves in a relation of settler to motherland, essentially comprising a relation of family, genealogical heritage, and political birthright. But while metropolitans may have accepted some notion of the settlers as extensions of themselves, they also saw the colonies as whole social formations that were essentially dependencies and that were marked by difference, indelibly so in the case of the overwhelming African majorities of the West Indian territories. As noted above, they regarded the latter as potential subjects and not, like the slaveowners, as merely production and sexual tools. Metropolitans were in the business of building an empire and, in and through that very process, defining a new liberal bourgeois nation, with increasing middle-class inclusion and influence. Besides, for the metropolitan authorities the project of empire was always under construction, tenuous, unpredictable, and threatening to slip out of their grasp. It was bombarded with challenges from several fronts, requiring their constant vigilance—European rivals, unruly settlers, megalomaniacal officials, dangerous natives, and restless classes at home. Increasingly, there was far more to occupy their minds than recalcitrant minority settler groups in one corner of the globe whose longstanding colonial preeminence was on the decline. Furthermore, they had a responsibility to the ascendant global empire that the narrowly narcissistic, self-serving West Indian planters did not.	16
The unfolding projects of empire abroad and nation at home were at once mutually constitutive and mutually repellent (as the intellectual shifts from mercantilism to physiocratic nostalgia and free trade futurism suggest). In fashioning and refashioning the colonial other, metropolitans were continually defining, redefining, and refining themselves. They aimed to make their imperial subjects as much like them as possible and, thus, to reproduce themselves anew as the most advanced standard-bearers of Western and human civilization. The authorities saw promiscuous concubinage and unreconstructed heathenism as a threat to imperial order. Ultimately the question of marriage rights for their (would-be) subjects was bound to clash with their own developing self-image.	17
The colonists (on the other hand) saw themselves as bearing the birthright of their eternal Britishness in their persons and in their skins, and they saw Britain as the womb to which they were attached by an umbilical cord, whether they had ever set foot on its shores or not. Of course the Britain to which they referred was an imagined one; and they were both puzzled and infuriated by the betrayal they felt to be inherent in the new demands that were being imposed on them. And whether they were West Indian-born or not, the West Indies was for them an offshore facility where enslaved Africans labored to produce tropical commodities for their profit and for the palates of metropolitan consumers (and, particularly in the case of sugar, coffee, and cotton, to satisfy the caloric and clothing requirements of the new industrial proletariat). It was also a facility where the enslaved were forced to render domestic and sexual service for their resident white masters.	18
Thus, the same norms simply did not apply to both spaces or to both classes of persons—or, rather, to "persons and subpersons," to borrow the terms by which Charles Mills designates the unequal parties to what he calls the "racial contract" (the European social contract with its invisible racial underpinnings).¹⁰ Indeed, the peculiarities of the race-gender demographic structure of the West Indian colonies, featuring a great majority of Africans of both sexes and a white minority in which males tended to predominate (two to one in Jamaica), meant that the space was both "raced" and sexualized, to follow Mills further.¹¹ Up to the eve of emancipation, visitors to the Caribbean were still remarking on the absence or dearth of white women, married couples, and practiced religion in most of these territories. Testimonials about the irreligiousness of the planters were legion and extended to the conduct of Anglican clerics, many of whom shared the planters' lifestyles. Arriving in Jamaica in 1829 (after more than three decades of nonconformist missionary activity), the Presbyterian missionary, Hope Masterton Waddell, sized up the society he saw before him through both worldly and other-worldly lenses: The proprietors or island nobility were for the most part absent, and their "great houses" unoccupied, and going to decay, except where a planting attorney resided and kept everything in good order. These attorneys formed the squirearchy of the island. One might have several properties under his care, some had many, and were very great men indeed. Every estate had its own overseer, who had "book-keepers," carpenter, and mason under him. From the attorney down all were unmarried, yet all had families. A married lady was rarely seen. Some planters had not seen one since they left home. Others knew not how to address one when they met her. The "housekeeper" [live-in black mistress] system had become a colonial institution.... Planters have owned to me that they were shocked at first by the style of living, but were laughed at and insnared, and became in the end used to it as unavoidable. Others never got over it. Troubled by pangs of conscience, they drank to excess, and died in despair; "since good gospel come buckra die hard."¹²	19
As Catherine Hall summarily concludes, "England was for families, Jamaica was for sex."¹³ It was quite literally the "racing" of marriage and of space that defined the difference. This division has also been captured in R. T. Smith's more fuzzy terminology of the "dual marriage system," in which he is referring to the duality of the black concubine and the white wife, structurally connected by the person and agency of the white master but allocated to different, and acutely unequal, social and legal spaces.¹⁴ Many spoke of the out-of-placeness of those white wives that were resident on the plantations. In fact, few West Indian plantations could boast of resident white wives/mistresses, though there were notable exceptions.¹⁵ The prevalence of absentee ownership in nearly all the West Indian colonies meant that the plantations were essentially run by surrogates and underlings. Moreover, the rather rigid preference for unmarried male recruits as overseers and other lower-level personnel skewed the white population on the plantations toward bachelor subalterns. White wives therefore tended to be both demographically and socially unavailable to these subalterns (as much as black women formed a readily available and exploitable sexual labor force at their behest). Marriage effectively presented itself in West Indian society as a rarity and as a privilege of the upper class, especially those directly connected to Europe, the most abundant source of properly pedigreed white wives. As R. T. Smith's concept of "dual marriage system" implies, resident white males, who were in a position to, maintained both a white wife, co-resident or securely established at "home" in Britain, and one or more favored black or "colored" mistresses, enslaved or free.	20
Marriage, then, was a white/elite institution that did not belong in the West Indies, a black/subaltern space. It was denied to the category of subpersons that mostly occupied this space, infusing it with its racial character. The mutually constituted institutional and spatial opposition of white marriage/black concubinage and England/West Indies is well captured in Mills's observation that the "Racial Contract norms (and races) space, demarcating civil and wild spaces." And he continues: The norming of space is partially done in terms of the racing of space, the depiction of space as dominated by individuals (whether persons or subpersons) of a certain race. At the same time, the norming of the individual is partially achieved by spacing it, that is, representing it as imprinted with the characteristics of a certain kind of space. So this is a mutually supporting characterization that, for subpersons, becomes a circular indictment: "You are what you are in part because you originate from a certain kind of space, and that space has those properties in part because it is inhabited by creatures like yourself."¹⁶	21
Mills argues that the "slavery contract" and the "colonial contract" are both forms of the racial contract, one more nakedly so than the other. In the debate over amelioration and slave marriage both sides disposed of, by projecting onto others—other spaces, other bodies—the refuse of their own culpability, persisting in different forms of amnesic denial. Metropolitans argued in the end that slavery was alien to the free soil and pure air of Britain, repugnant to the spirit and genius of the British Constitution and the Christian religion; the slaveowners, that licentiousness and immorality inhered in the enslaved African savages, through whom alone they were contaminated.	22
Some planter ideologues like the historian Edward Long tried to argue in favor of reclaiming the space of the West Indies for white civility and respectability by cultivating marriage eligibility, including the appropriate racial-ethnic and social qualities of genteel wifeliness, among the less than stellar caste of white women on hand locally. Long was the most important planter moralist/intellectual of his day, the author—through his various speeches, pronouncements, and writings—of the most ambitious attempt to "systematise the world view of the planter class of the period."¹⁷ As such, he considered the enslaved Africans to be "more like beasts than men," and Africa to be "the parent of everything that is monstrous in nature."¹⁸ His proposal for improving the caliber of white women in the West Indies included provisions for their thorough de-Africanization, requiring the rooting out of those habits—of speech, dress, cuisine, bodily posture, and gesture—into which they had ineluctably fallen from too close an association with their numerous and ubiquitous enslaved attendants. He proposed: To allure men from these illicit connexions, we ought to remove the principal obstacles which deter them from marriage. This will be chiefly effected by rendering women of their own complexion more agreeable companions, more frugal, trusty, and faithful friends, than can be met with among the African ladies.... Much, indeed, depends on the ladies themselves to rescue this truly honourable union from that fashionable detestation in which it seems to be held; and one would suppose it no very arduous task to make themselves more companionable, useful, and esteemable, as wives, than the Negresses and Mulattas are as mistresses....¹⁹	23
The ameliorationist metropolitans and missionaries were conversely preoccupied with fashioning the moral and Christian Negro subject and transforming West Indian society into an industrious and as-civilized-as-possible space, as befitting station and function. They were greatly concerned with stamping out illicit interracial sexual coupling and the heathenish practice of polygamy and with promoting chastity and monogamous and endogamous marriage among the slaves and ex-slaves. This meant advocating sex-role differentiation, mutuality, and complementarity; protecting the modesty of women and emphasizing their virtuousness and respectability; and promoting the sober, disciplined, and independent masculine subject and head of household. This was among their first tests in the assertion of middle-class Christian values beyond Britain's shores and in the exercise of their growing mandate of moral imperialism.	24
The majority of the enslaved had ideas of their own regarding marriage and their own gendered subjectivity, which of course differed from both those of Edward Long and those of the missionaries. These ideas, and the forms to which they gave rise, reflected a combination of pragmatic adaptation to the extreme conditions of plantation slavery, deployment of cultural modalities of African origin, rejection of planter-class hypocrisy and double standards, the struggle between the sexes, and, under certain circumstances, aspiration to hegemonic forms rewarded by the social system. Expressions of cynicism on the part of the enslaved toward apparent European-style marriage and sanctimonious exhortations urged upon them to practice faithful monogamy abound in the testimonial literature. In response to one such exhortation, coming from a Mr. Shirley, "a Member of the Assembly ... and a profligate character," an African-Caribbean skeptic is reported to have exclaimed, "Hi, Massa, you telly me marry one wife, which is good! You no tinky I see you buckra no content wid one, two, tree, or four wifes; no more poor negro."²⁰	25
In the debate over slave marriage, however, neither side among whites placed any value on the preferences of the enslaved, or seriously credited their capacity for rational, ethical, or creative response to their life conditions. This is patently glaring in the case argued by Stephen. Broadly speaking, he occupies a position somewhere between the unreconstructed pro-chattel slavery and racism of an Edward Long and the more radical humanitarian movement in the metropole. In the correspondence he initiates we already detect the gathering storm of abolitionism in the shadow of James Stephen Jr. hovering over the Bathurst minute of which he was the probable author.²¹ Certainly Stephen was closer in spirit to the planters than to the abolitionists. However, it is important to bear in mind that before Thomas Fowell Buxton, Wilberforce's chosen successor as parliamentary leader of the abolitionist cause, threw down the gauntlet in 1823 in the House of Commons with the declaration that "the state of Slavery is repugnant to the principles of the British Constitution and the Christian Religion; and that it should be gradually abolished," there was much equivocation about the humanitarian mandate and what should be the focus of its reform efforts: the body-and-soul conditions of the enslaved or the idea and institution of slavery itself? Conservative humanitarians like Stephen and Wylly focused on the Christianization of the enslaved and their paternalistic integration, as slaves, into regularized and reformed white plantocratic societies. More progressive or "aggressive" humanitarians, who more easily morphed into gradual abolitionists, advocated the Christianization and "civilization" of the enslaved to render them increasingly eligible for and worthy of free status, which should be made available to them on an orderly and non-disruptive basis. In 1816, outright abolitionism, which stressed the inherent inhumanity of slavery and the inherent humanity and natural right to freedom of the enslaved, was still the purview of a few radicals among whites, including some liberal intellectuals, political firebrands, and religious groups like the Quakers, who, since 1761, had taken a principled stance against the trafficking in human flesh.	26
Rev. Stephen's letter alights on a number of issues already placed, at least suggestively, in context above: the differential conceptions, and their implications for the condition of slavery, of marriage as natural right and religious sacrament and marriage as civil institution; the sustainability of marriage as an instrument of hegemonic morality and respectability in a society based on relations of coercive sexual service and informal concubinage, and the practical promise of marriage as a medium of stable economic reproduction and political quiescence. In showcasing Stephen as (Anglican) clergyman/philosopher, reform-minded pro-slavery moralist, and armchair jurisprudent, we can analyze the arguments, regimes of truth, and discursive strategies mobilized by him against those utilized by the major parties to the debate over slave marriage, slave status and amelioration, and, further, to consider them critically against the historical and material backdrop of relations between colony and metropole, relations between (white) master and (black) slave, and relations of patriarchy and gender. To state the latter much more broadly: I will consider the imperial/local race, class, and gender implications of Stephen's arguments during the period of amelioration.	27

The Dilemma of Rev. John Stephen: On the Question of Slave Marriage
In 1816, Rev. John Stephen, rector of the parish of Christ Church in the Bahamas, was moved to weigh in at great length on the question of slave marriage in the British West Indian colonies. Two years earlier, alarmed by a slaveowner's rescinding the permission he had originally granted a male slave to formally marry a free woman, Stephen had sought in writing the legal opinion of "His Majesty's Attorney and Solicitor General" regarding the rights of slaves to marry and the attendant legal implications (Stephen to Cameron, 217–26). The slaveowner's change of mind had been prompted by the fear, propagated by an interlocutor "of the legal profession," that such permission might invoke a presumption of freedom, "a virtual emancipation," on the part of the slave. In light of this, Stephen's inquiry was twofold: "Whether the marriage of slaves is, or is not, conformable to the principles of our laws? And, whether a slave, if married with his master's consent, could, on proof of that circumstance, ground a claim for his liberty?" (Stephen to Cameron, 217) These questions had been urgently rekindled by a more recent instance of withdrawal of previously granted consent for the marriage of a female slave to a free man by another slaveowner, based on similar apprehensions of unwitting and unintentional manumission.	28
From the protracted treatise discussed below, it is clear that what he had been hoping to hear in response to his inquiry was that, yes, slave marriage was legally allowed, and, no, the right to marry—either another slave or a free person—in no way presumed the right to liberty or sanctioned a claim for freedom.	29
He was deeply troubled by the response that he did receive. On January 18, 1814, William Wylly, the attorney general of the Bahamas, supported by J. Armstrong, the solicitor general, had issued the following legal opinion: Marriages are considered in our law as merely civil contracts. To make any contract valid, the party contracting must be of sufficient legal ability. But from the very nature of slavery, it is evident that no slave can enter into a valid contract. It follows, that a marriage between a slave and a free person is a mere nullity. But the consent of the owner would materially alter the case; and if sufficiently evidenced, may probably be considered as amounting to an emancipation. (Stephen to Cameron, 218)	30
This line of thinking concerned him on many grounds but principally on two. First, he thought it was against natural law and the law of God to "restrict any class of human beings from the use and enjoyment of" the institution of marriage. Second, he rejected the idea that the use and enjoyment of this natural and God-given right by slaves, provided it received the sanction of the master, interfered with the institution of slavery or the proprietary rights of the slaveowner. Stephen was unambiguous in his anxiety to preserve both institutions, marriage and slavery, and the set of rights attached to each. To make his argument, he drew upon theological, legal, historical, and practical justifications in favor of slave marriage and its fundamental compatibility with the institution of slavery and with the long-term security of the slave system.	31
The final set of responses to Stephen's ponderous 1816 missive, which will be discussed at length below, are highly instructive. In the Bahamian government's response, the attorney general affirmed his previous position, while the new solicitor general, in support, focused on the fact that marriages contracted by slaves without the consent of their master would be void, given the slaves' legal incapacity to enter into contracts on their own behalf. The dissenting imperial response, from Earl Bathurst (on the probable advice of James Stephen Jr.), was more than Stephen might have hoped for or been willing to concede, flying, as it did, in the face of nearly two hundred years of implacable colonial practice. Despite its dubious practicality, it immediately claimed for the Colonial Office the moral high ground: I have to acquaint you that, having referred the point to the consideration of His Majesty's law servants, it is their opinion that the ecclesiastical law has always held without distinction as to the consent of the owner, that slaves were not to be excluded from marriage either with free persons or slaves, and that their owners' claim to their services would not be effected thereby....²²	32
Bathurst goes on to say that unless the opinion advanced by Wylly, the attorney general, was based either on positively enacted law or judicially sanctioned custom in the Bahamas, "this provision of the ecclesiastical law, which was adopted generally in Europe, may justly be applicable to the Bahamas."²³ He seeks, however, "a statement of the existing laws on the subject in the Bahamas as derived from legislative or judicial authorities." Three months later the requested information is dispatched from Wylly and a trio of judges: "Our colonial laws are silent upon the subject of marriages of slaves, and there being no spiritual court in the Colonies, we are of course but little versant in the ecclesiastical law, except so far as it has been adopted by statute."²⁴ The judges confirm that there is neither legislatively enacted nor judicially sanctioned prohibition against slave marriage in the Bahamas.²⁵ In default of a relevant colonial law, the marriage law in force in the Bahamas, under the authority of the "General Declaratory Act," is an enacted statute from the era of Henry VIII.²⁶ In an unlikely twist, it turns out that Stephen's earlier reference to this very act as a basis for making marriage rights claims on behalf of the enslaved might not have been so fanciful after all.	33
Stephen argues his case in favor of slave marriage on four main grounds: those of theological and religious precepts, civil jurisprudence and common-law precedent, practical economic and security interests, and moral principles. The first two themes are interrelated and of a more philosophical nature, while the third and fourth form part of more practical political-economic and everyday concerns. The discussion will reflect this.	34
On the first ground, it is worth quoting him at length: Marriage was instituted by God himself, as early as the creation of the first human pair, and while man was yet in a state of innocence. It has been confirmed by every subsequent dispensation of religion, and more particularly so by the christian. Although, therefore, human laws may, and indeed must regulate many things respecting it, in order to prevent disorder and confusion in society, yet it is impossible that they can have any right to set it aside, or to restrict any class of human beings from the use and enjoyment of it. It has been recommended, encouraged, and enforced, and the rights of it have been protected by law in every civilized nation since the earliest accounts of history. (Stephen to Cameron, 218)	35
For Stephen, therefore, marriage is a natural right, a God-given right, confirmed and solemnized by religion, recognized and regulated by law, and encouraged by the moral exigencies of civilized society. As a natural right, conferred by God upon all (classes of) human beings, it preceded religion, civil law, and political authority, all of which could only sanctify, institutionally mediate, and regulate it, but could not deny it. Moreover, Stephen gives virtually equal political and legal weight to religious and civil sanction of marriage, particularly, presumably, in the case of England, where Church and State were integrated. He appears to seize upon the mutual requirements of religious and civil authorizations in British marriage law to argue (at first) for their inseparability in principle. Very few metropolitan authorities of the Established Church, traditionally more flexible on these questions than their colonial counterparts, had ever been willing to make that claim, being happy to separate the two conditions and offer exclusively religious marriage as a form appropriate to the status of slaves. Stephen states: "Marriage is more than a civil contract, it is also a religious contract, founded on an institution of God. The matrimonial law also, which takes cognizance of marriage, is as much a part of the law of England as the civil law. It follows, therefore, that the civil law alone cannot determine the question in hand." Stephen sees religious law in general and ecclesiastical law in particular as closer to and a more direct expression of the authority of God, in which ultimately rests the dispensation of the right to marry of all human beings. And, clearly, Christianity is the most direct expression of God's authority: "Though they are our slaves, they are God's free-men, and are entitled to all the benefits of common salvation, which the Saviour of the human race has purchased for them as well as for us" (Stephen to Cameron, 220).	36
Stephen is no less unwilling to cede the grounds of the civil law argument. But, he asks, is marriage forbidden the slaves, even under civil law ("taking marriage merely in a civil light, it may perhaps be found, that the principles of the civil law are not so decidedly against the marriage of slaves, as at first sight appears")? Here he enters into a digression upon the letter and spirit of the law, according to Blackstone and directly cited common and enacted law statutes, as well as according to historical precedent in the British feudal system. This foray into comparative jurisprudence is fascinating because it bypasses the peculiar legal codes and informal practices of West Indian slavery (glossing over its "differentness") and establishes homegrown English common law and social relations as its reference point, thereby placing the West Indian slaves on an existential and politico-legal continuum with unfree or semi-free white Britons, and, moreover, within the same overarching system of direct political accountability (albeit respecting different time periods).	37
The very establishment of referential comparability or fungibility is controversial. It appears to place Stephen closer to the spirit, if not the letter, of the metropolitan camp (i.e., the officials). Indeed, not the letter. One of the counsels in the famous 1772 Somerset case had been scrupulous in arguing that villeinage had become naturally extinct in England and that, even if it were not extinct, it would require for its authentication proof that it had "always been in the blood and family," and that it was "immemorial," i.e., that it had commenced on English soil "beyond the time of memory": The law of England then excludes every slavery not commencing in England, every slavery though commencing there not being ancient and immemorial. Villenage is the only slavery which can possibly answer to such a description, and that has been long expired by the deaths and emancipations of all those who were the objects of it. Consequently, there is now no slavery, which can be lawful in England, until the Legislature shall interpose its authority to make it so.²⁷	38
Francis Hargrave, the jurist in question, points out that "in our American colonies and other countries slavery may be by captivity or contract as well as by birth.... Therefore the law of England is not applicable to the slavery of our American colonies, or of other countries."²⁸ In light of this and other modes of thought, it is doubtful that any metropolitan would have argued for continuity or applicability of English common law on the grounds that villeins and slaves shared a legal and historical identity. At the same time it is important to note in Hargrave's legalese a longstanding metropolitan characteristic which Stephen, as a West Indian resident, could be expected to avoid—that is, the deeply embedded denial and hypocrisy implied in the positing of an absolute irreconcilability and estrangement between British freedom and American slavery. At the time of the Somerset ruling, the right of Englishmen to traffic in (other) human beings was not under dispute.²⁹ Indeed, the following typical response to Bathurst's 1823 amelioration proposals, repeated almost word for word across the West Indian island assemblies, exposes this hypocrisy while reproducing elements of its own: But it is not these Colonies on whom rests the guilt of the original sin. The traf[f]ic was of the Mother Country's fostering. Parliamentary enactments and Royal Proclamations and Charters, alike held out to the settlers of these islands, as an acknowledged right, the power of cultivating the waste lands purchased from the Crown, by the labour of African negroes, brought to these shores by thousands under the cover of the British fleet, a branch of its commerce protected by bounties, and every immunity which the most anxious care could dictate; a signal proof of which if the Council are not mistaken, is exhibited by the very instructions of the crown to the Governor of these colonies, in which forgetful of the change of policy which Great Britain has lately adopted, there still continues to be inserted an earnest recommendation to encourage the slave trade. The Council refer to this and they might lengthen their address to your Excellency by referring to a thousand other sources to shew the fact (which indeed is undeniable) that to Britain alone is the establishment of slavery in these colonies owing. The ancestors of the present Colonists confiding in the good faith of their country and under the sanction of these Parliamentary and Royal Authorities, became the purchasers at high rates of the lands belonging to the crown. Trusting to the permanency of the system they found established, they not only expended their own capital and many of them sacrificed their lives in laying the foundations of another colony appendant to the British Empire in these seas, but the greater number borrowed large sums of money from the merchants of the United Kingdom (which are still due) for the purpose of still further extending the cultivation of the soil. Such was the trust and the system upon which this colony was founded[,] cultivated and brought to the advanced state in which it lately existed.³⁰	39
Seemingly oblivious to all these larger political and jurisprudential controversies that attended the struggle for slave rights, Stephen's positions are confidently asserted. They can be summed up in the following points, which will then be considered in turn:	40
(a) Marriage was a natural right, a common human right based on natural law. It was also a Christian "right," a benefit of common salvation to which the slaves were entitled as "God's free-men," along with the rest of humanity, all of whom enjoyed co-equal spiritual freedom as actual or potential converts to Christianity.	41
(b) Notwithstanding Wylly's assertions to the contrary, the slaves were also entitled to marriage as a civil right. This was so on the basis of common and enacted law in place during English villeinage, under whose terms unfree persons had both the right and the obligation to marry. Villeins were the statutory equivalent of West Indian slaves and hence a justifiable basis for establishing legal precedent applicable to the latter under British dominion common to both groups.	42
(c) As a corollary of the above points: The enjoyment by slaves of the right of marriage was (or should be) contingent on the consent of the master ("the consent of the owner would supply the want of legal capacity in the slave to contract") (Stephen to Cameron, 218).	43

No Marriage or a Certain Kind of Marriage? Religious Implications
As Stephen's outrage indicates, even in the Bahamas where slavery was known to be milder than in the sugar islands,³¹ the planters as a class strongly resisted marriage rights for the enslaved on both religious and civil grounds. Since the mid-seventeenth century, when sugar plantation slavery first became ascendant in the sub-region, civil and religious authorities in the metropole had repeatedly called upon the planters to christianize the slaves and consequently recognize their matrimonial rights.³² The planters' intransigence held firm until the mid-1820s when they were finally forced to make some limited but important concessions. So obdurate was the resistance in some quarters that, according to one historian, "[o]nly one marriage of slaves was performed in Barbados before 1825, and that by a minister who was later subjected to persecution by his own parishioners."³³	44
Authorities in the metropole explicitly disagreed with the planter-class position that conversion of the slaves would directly threaten the power and property of the masters. In 1680 the Lord Bishop of London formally advised the Council of Trade and Plantations that the "apprehensions of the planters that the conversion of slaves may deprive the owners of their present power and disposal" were groundless.³⁴ The powerful West India Committee, a lobbying group for West Indian sugar interests in London, later worked closely with officials of the Established Church to try to convince their hard-headed provincial constituents to expand the sphere of slave entitlements in favor of Church-sanctioned marriage and family preservation, as a way of averting the demographic crises of slave reproduction and the ever-present prospect of slave rebellion. Metropolitan demands to christianize the slaves did not posit any challenges to their negative civil status or explicitly call for changes in the latter. Indeed, since the official Church of England's authority was subsumed under that of the State, it stood to reason that any ecclesiastical ministering to non-citizens and civil non-persons would carry only spiritual and moral sanctions and, as Stephen so forcefully remonstrated, would incur no "civil inconvenience."	45
The planters remained unconvinced. The 1798 Leeward Islands Amelioration Act asserted unequivocally that it was "unnecessary and even improper to enforce the Celebration of any religious Rites among the Slaves in order to sanctify Contracts." In their minds, the two dimensions of authority were too closely intertwined. On the very eve of emancipation the form of religious marriage that was eventually sanctioned for slaves was a specially abbreviated one that dispensed with some of the requirements considered pivotal in British marriage laws and that, in open defiance of Colonial Office, required the consent of the master. In addition, the planters insisted that for the slaves' marriages to be recognized they had to be performed by Anglican ministers. Even during the post-slavery Apprenticeship period, when the ex-slaves enjoyed semi-contractual semi-freedom, there were several instances of managers, overseers, and even Anglican parish rectors illegally but successfully refusing to give their permission, or halting official applications already in the pipeline, for the marriage of apprentices on charges that they constituted "an impertinent interference with the management of the estate" or "a most gratuitous and unprecedented interference with the internal regulations of the property.... "³⁵ Many apprentices were thus forced to contract marriages at "dissenting places of worship," which, while the spiritual and social preference of many, were still not legally valid in most West Indian territories.	46
Manyoni, in his important article on the struggle over slave marriage rights, argues that conversion to Christianity, literacy, and formal marriage for the slaves were the "three closely intertwined" bogeymen that haunted West Indian slave regimes. Despite metropolitan pledges to respect the property rights of the owner, eighteenth and early nineteenth-century planters were deeply apprehensive of any project meant to elevate and refine the spiritual, intellectual, and moral sensibilities of the slaves, which they felt christianization, literacy, and marriage were likely to do. Not only would such a project "impair their [slaves'] value and price," it would also interfere with the masters' freedom to economically and sexually exploit them in the enjoyment of absolute and unmediated rights of ownership. Whites found the idea of converted, literate, and "properly" married slaves to be offensive and dangerous. It eroded and contaminated the exclusivity and sacrosanctity of European privilege and identity by allowing slaves to partake of them, if only distantly and symbolically; it weakened the availability of the slaves as objects of unmitigated exploitation and of the murky colonial underside of European civilization and fantasy; and it potentially threatened the physical security of the whites and their property by inciting the slaves to visions of total freedom. Manyoni cites a contemporary observation that "when coloured concubines adopted christianity, 'their renunciation of base connections gave the greatest offence to the white community.'"³⁶ It occurred to whites that "uppity" black people who went to the great lengths required to become literate, convert to Christianity, or obtain a clerical marriage, might have pretensions to being something other than their sexual and production tools. In the overwhelming black majority situations of the Caribbean, such pretensions were extremely threatening to the planters' race/class niche.	47
Strictly speaking, it could be argued that conversion, so feared by the planters, was necessary for marriage because of English laws requiring religious sanction and, specifically, Church of England solemnization of marriage. For centuries there had been incremental moves to incorporate the common-law marriage practices of ordinary English folk into the institutional rubric of the elite religious establishment in order to control their family and inheritance systems as well as their moral habits. A Council of Trent ruling in 1536 required the presence of a priest to formalize a marriage, where none had been required before. As a result, all officially recognized marriages in England were administered by canon law and by the Anglican Church. The Marriage Act of 1753, or Lord Hardwicke's Marriage Act, laid down yet stricter rules, requiring marriage to be performed by formal church ceremony and to be officially publicized, witnessed, and recorded. These rules effectively nullified common-law marriage. The act also required parental consent if both parties to the marriage were under twenty-one years of age. Children of marriages that did not meet these requirements could not inherit property and were considered "base." Church of England-sanctioned marriage was the requirement until 1836, when the British Marriage Act finally gave official approval to marriages performed by civil authorities and registered ministers of other denominations.	48
Indeed, the inclusion of the slaves in the religion of the whites had such powerful connotations of freedom that, even before Lord Mansfield's 1772 ruling in the Somerset case, abolitionist sympathizers in England repeatedly tried to argue that the baptism of sojourning slaves accompanying their masters and mistresses on British soil constituted grounds for their freedom and against their forced deportation.³⁷ The same arguments were later made with regard to proper Christian marriage. Stephen refers to this mistaken belief as the unfortunate basis for longstanding resistance by owners to the baptism of their slaves. He states that the "absurd prejudice against the baptism of slaves has now happily ceased," and hopes that similar prejudices against their marriages will meet the same fate (Stephen to Cameron, 223–24).	49
Over the course of several decades, the planters introduced a cumulative number of piecemeal and finely discriminating caveats every time they felt pressured to make reforms, but, to the end, they refused to concede full-fledged Christian marriage after the metropolitan model. They finally allowed mass baptismal rites without formal conversion or religious instruction; oral religious instruction only; training to recite bible verses by rote rather than instruction in their meanings or teaching to read; teaching to read but not to write; the reading of the bible only; baptismal rites administered by Church of England officials only; proactive encouragement of and rewards for cohabitation without formal rites of marriage (known as faithful concubinage); (a version of) religious marriage as permitted by the master and officiated by Anglican ministers exclusively, and so on. The two main conditions on which they refused to compromise were the consent of the master and officiation by Established Church clergy exclusively. This, of course, does not deny the fact that individual owners had always reserved the private-property right to act according to their own consciences, while avoiding any clash with the public law dimension of the slave code or more generally causing public offense.	50
In the British West Indies, marriage among slaves had not been the subject of law or of the slave codes because, slaves being legal non-entities, the possibility had no conception in law. In dealing with slaves—who were property—only civil considerations had import. There had been some early laws prohibiting free persons from marrying slaves, with heavy penalties imposed on ministers and free persons violating the rules.³⁸ But such laws were presumably directed at the parties possessing juridical liability, not at the slaves, who had none. Stephen's discussion of the Bahamian cases, which prompted his inquiry in the first place, makes no mention of such explicit legal prohibitions. Thus it is not clear if they were peculiar to certain islands or had simply fallen into disuse from lack of circumstantial relevance. Most scholars agree that the West Indians by and large did not pass laws against miscegenation (a different matter, admittedly), unlike their counterparts elsewhere in the Americas.³⁹ One exception has been found in an early Antiguan law passed in 1644 and reissued in 1672.⁴⁰ But such laws would have too deeply implicated the lifestyles of the majority of white men in the West Indian colonies and would not have been worth their weight in ink.	51
In her masterly comparative study of Caribbean slave laws of the eighteenth century, Guyanese historian Elsa Goveia has noted that the "basic conception of the English law in relation to slaves was not, as with the Spaniards, that they were an inferior kind of subject;" rather, it was that "they were a special kind of property—that is, property in persons."⁴¹ The British West Indian slave codes—once sugar became king—chattelized the slave in no uncertain terms. Strictly speaking, the slaves were seen in part as chattel and in part as real estate, but always as the object of absolute and alienable private property. This legal reification of the entirety of the slave's person and personality was unambiguously spelled out in enacted law, such as the Barbados acts passed in the years 1674 and 1688 declaring the "slaves to be 'Real Estate' and absolute property of their owners."⁴² During the amelioration debates these "absolute property" rights that the owners had in their slaves were constantly being invoked.	52
This kind of legal conception posited a fundamental incompatibility between the slaves' civil (non-)status and expressions of their spiritual humanity. Other slave codes did not assume such incompatibility (since they were not devised solely on civil grounds). Neither, as we have seen, did Stephen or leading metropolitan authorities in Britain. It is clear therefore that one major reason for the inflexibility of British West Indian slave laws had to do with the very liberties enjoyed by the "self-legislating freeborn Britons" in the colonies.⁴³	53
The Spanish slave code, at the opposite end of the continuum of colonial legal norms, originated in pre-existing metropolitan law governing slavery as a (still extant but declining) domestic institution within Spain itself. Colonial government and the administration of the law were centralized in the metropole; and the law explicitly embraced the authority of the Roman Catholic Church, which integrated the enslaved into its spiritual community as co-religionists and children of God alongside whites. The code recognized the shared innate humanity, the spiritual personhood, the religious rights, and (Roman Catholic) church membership of the enslaved, and consequently their right to marry and to have their marriages duly solemnized.⁴⁴	54
Slavery in the British system, despite all appearances to the contrary, was based on strong presumptions of those "advanced" principles around which an emerging capitalist ethos had accreted. Those were the principles of liberty, contract, and absolute rights in property, as vested in the free-standing individual and liberal juridical subject/person, with devastating winner-take-all consequences when combined with a system in which the human "other" was the object of property and property rights. By contrast, Spanish slavery was initially based on a semi-feudal order steeped in continuous status hierarchies, relative rights in property, and monarchical and theological absolutism. Cottrol, among others, recognizes precisely the contradictory consequences of this contrast in normative legal systems, while rejecting Tannenbaum's conclusions about its causality in determining the degree of severity of slavery.⁴⁵ In his scheme, which, like so many others, would have been greatly enhanced by consideration of the British West Indian case, the postcolonial American South represents the peculiar, mutually constitutive duality of "advanced" liberalism and strict racial dichotomy/apartheid, while the Latin systems adhere more closely to a combination of pervasive and "backward" class/status hierarchy and racial continuum/flexibility.	55
It is ironic but not surprising that the British amelioration movement advocated a number of principles that were integral to the original conceptions of the Spanish and, to a lesser extent, the French slave codes. Among those principles were metropolitan precedence over local oligarchies (especially in the matter of protection of the enslaved, since there was never any doubt about their precedence in the matter of the Navigation Acts), religious and marriage rights for the enslaved, and manumission and post-manumission citizenship (or common subjects') rights. Implicitly, amelioration aimed to undermine the British concept of the slave as res and promote the original Spanish principle of the slave as persona, albeit of an inferior kind. As Goveia has pointed out, "[t]he myth of 'inevitable progress' has prevented for long an appreciation of the fact that humaneness pre-dates humanitarianism."⁴⁶ For example, George Smith—a trained English lawyer sent out in 1809 by the Colonial Office to the newly acquired colony of Trinidad, with an appointment to a Spanish position roughly equivalent to that of Chief Judge—was counting on this humaneness when he argued against the transfer of the British Constitution and institutions of representative government. Instead he sought the retention of the Spanish legal and governance system. In a telling declaration, Smith, who was wholeheartedly supported in this view by James Stephen Sr., warned: If you mean to ruin the colony you will give us the British Constitution, a form of government whose foundations resting on the general liberty becomes an absolute caricature in a community where four-fifths of the whole population are slaves; and in which of course the rights of humanity can only be guarded by an executive government holding over the masters an authority bearing some proportion to that which he claims over his slaves, and the want of which in the other English colonies is the true cause why in those the slaves are treated with less humanity than in those of France and Spain.⁴⁷	56
It is, however, generally agreed that with somewhat different starting points in law and conception, the British and Spanish slave systems eventually converged in practice and in their treatment of the slaves, driven by the imperatives of a shared colonial export slave mode of production, dependence on the slave trade, and denial of the slave's legal personality, a principle derived from Roman law but sealed with American-origin racial signifiers. The British system was forced to incrementally provide more protections for their slaves, while the economics of intensified export production impelled the Spanish colonial slave toward a more chattel-like status. Watson, in his work on comparative slavery, notes that the normative differences mattered little in the face of the ultimate legal incapacity of the Spanish, as other American, slaves. Slaves were simply not juridical persons but were economic (and sexual) objects and so were vulnerable to the circumstantially motivated shifts in attitude to protections that ultimately relied on the indulgence of the master. As he reminds us of the Spanish case, "[s]lave marriage was legally recognized, but it had few legal consequences."⁴⁸ In making this important point, perhaps Watson has unnecessarily downplayed the symbolic and cultural (including religious) consequences.⁴⁹ Indeed, one might well interpret the post-1760 Spanish legislative obsession with racial and class endogamy—where the British system required no such laws—as an ex post facto attempt to curb the too-liberal translation of the universal right to marry into a right to marry anyone.⁵⁰	57
When Wylly prioritized the civil contractual dimension of marriage in British colonial law, he was affirming a very important principle that also characterized the spirit of the British West Indian slave codes, that is, the emphasis on pure and absolute contractarian principles enabling the division of the population into those with and those without the power of contract. This was indeed a caricature of the English legal tradition, whose body of common law, evolved over centuries, accommodated a wider variety of legal situations and normative rules. Accordingly, there was a record of discord between visiting metropolitan jurists and the colonists on the question of the application of English common law. The colonists for the most part insisted that the "common law of England [was] not applicable to the slavery of the West Indies" and that, in dealing with slaves, only locally enacted law mattered.⁵¹ The visiting metropolitan jurists, of course, disagreed. But, again, this is not to say that the ambiguity in the law rested exclusively with the colonists. As Mills reminds us, the slavery contract and the colonial contract were both variations of the racial contract.	58
A similar dispute was evoked with respect to ecclesiastical law in Bathurst's reference to marriage rights provisions for the enslaved contained in "the ecclesiastical law, which was adopted generally in Europe," and which "may justly be applicable to the Bahamas."⁵² Here the gesture is made both to metropolitan precedence and to the religious rights conceded the enslaved in (other) European colonial constitutions. This kind of legal play and discursive eclecticism was typical of the early forms of ammunition being developed for the humanitarian legal arsenal. The matter-of-fact rejoinder from Wylly was equally typical of the colonial response: there was no practiced ecclesiastical law in these islands, and so there was little knowledge of their provisions.	59
There were no ecclesiastical courts in the West Indies that could potentially act as a countervailing or at least a complicating factor in matters that might be construed as pertinent to the realm of religion. This situation Bathurst soon set out to change. The West Indies had traditionally fallen under the authority of the Bishop of London, who rubberstamped ministers bound for West Indian assignments, but had little control over them once they arrived at their destination. When Bathurst first proposed the establishment of an episcopal see (or bishopric) for the West Indies, the Jamaican assembly vehemently opposed it, fearing the presence of a parallel or rival authority.⁵³ Bathurst took his usual approach of waiting for them to come around, and, eventually, in 1825, two bishoprics were established by Letters Patent, one including Jamaica, Honduras and the Bahamas, and the other comprising the islands of the Lesser Antilles.⁵⁴ Thus to the urgent, if accommodating, voices of metropolitan civil authority were added those of domiciled Church of England authority.	60

No "Civil Inconvenience"? The Civil Implications
According to Stephen, the marriage laws of England were in force before slavery was abolished there, and they did not apply exclusively to free persons. As we have seen, he implicitly equates English villeinage and serfdom with West Indian slavery, or sees them as a historical and political continuum under the terms of a unitary British state. These assumptions about the fundamental continuity or congruity between metropolitan villeinage and colonial slavery resonated more with Spanish than with British circumstances. "In the Siete Partidas, the slave [was] considered as part of the 'familia,' and the distinction between slaves and serfs [was] not clearcut."⁵⁵ Moreover, as we have also seen, the planters explicitly denied any continuity in status, historical or contemporary, between British subjects at home and abroad and their slaves. Again, it is not clear that Stephen understood the full extent or implications of his disagreement with the planters in this regard.	61
As late as the reign of Henry VIII, he asserts, feudal villeins "were slaves to all intents and purposes, as much as ours now are," based on a system where "they were either regardant, that is, annexed to the manor or the land; or they were in gross, or at large, that is annexed to the person of the lord, and transferable by deed from one owner to another" (Stephen to Cameron, 222). Other statutory conditions confirmed that they were slaves. They could not leave their lord without his permission and if they either ran away or "were purloined from him," they "might be claimed or recovered by action, like beasts or other chattels." They could acquire no property in lands or goods, except on a subsistence basis "at the mere will of the lord, who might dispossess them whenever he pleased." Indeed, if they deemed to purchase either land or goods, "the lord might enter upon them, oust the villain (sic), and seize them to his own use." And they were compelled to provide "villain services" at the pleasure and whim of the lord. Stephen's argument, in a nutshell, is this: Villains then were certainly slaves, as much so as in the very worst times, except that the lord of the manor had not the power of life and death over them. But that they were allowed to marry, and that their marriages were held good in law, without exposing their proprietors to any risk of losing their property by giving their consent to such marriages, will appear, I think, beyond dispute, from the brief account that is given of laws respecting them.⁵⁶	62
He is at pains to show that where a villein marriage had not received the proper sanction from the lord, feudal law (manorial custom and common law) sought restitution, from the father and/or husband, in a way that upheld both the proprietary rights of the lord and the ex post facto matrimonial rights of the couple. Stephen, the amateur jurist, is convinced: "It is clear, I think, from this, that the marriage was good in law, though contracted without the consent of the lord; otherwise it would have been declared null at once without subjecting the parties to a fine.... " Other statutory principles that confirm for him the inviolability of the villein's right to marry are the transmission of filial status—at issue in the case of mixed marriages (between a "freeman and a niefe" or a "villain and a freewoman")—through the father, and the maxim that "no bastard could be born a villain, because ... he is nullius filius; and as he could gain nothing by inheritance, it was hard that he should lose his natural freedom by it" (Stephen to Cameron, 222). Given the requirement of formally established paternity for the transmission of villein status and therefore the lord's proprietary rights, it was in the lord's interest "to encourage, and even enforce marriage among his villains" (Stephen to Cameron, 222). Moreover, emancipation was effected only through specific and strict rules of manumission and was by no means implied in the granting of consent to marry. While Stephen does mention situations where manumission was implied rather than express, he is adamant that permission to marry was not one of those. His examples of implied manumission included the transfer of property rights or annuities to the villein, a master placing himself in debt bondage to his servant, and a legal action ("except it was for felony") brought by the lord against his villein, conveying within it a presumptive recognition of the latter's independent juridical personhood and therefore free status (Stephen to Cameron, 222).	63
Stephen uses his historical examples to establish jural precedence for the immanent or self-evident right of the West Indian slaves to marry and the lack of risk to the slaveowner posed by such right, and he does so without a trace of irony. Here, then, it plainly appears, that there is nothing in our law (which is indeed the common law of England, except where it is otherwise provided by our own municipal statute,) to oppose the marriage of slaves; nor is there any ground for that apprehension, which now very generally prevails, namely, that a slave may ground a claim of implied manumission, on proof of his owner's consent to his marriage. (Stephen to Cameron, 222–23)	64
The fact is, neither the determination of the status of the offspring through the father, which legitimized the conjugal tie and the presumption of a family group in addition to privileging the father, nor the "natural freedom" of the "bastard" in default of an acknowledged father, which also established the father and the (heterosexual) conjugal tie as the exclusive or privileged medium for the transmission of jural and social status within the grid of property relations, had any direct bearing on the case of West Indian slavery. In that system, and in the logic of patriarchy, the enslaved were reduced to a state of enforced universal bastardy (they all had the status of nullius filius); paternity and the conjugal tie had no standing in law; and "partus sequitur ventrem" (the offspring followed the condition of the mother).⁵⁷	65
The situation of enslaved women differed quite dramatically from that of Stephen's female villeins in that their relationship to the master was not mediated, however tenuously, through a private patriarchal family: it was an "immediate" and fused class/patriarchal relation of forced re/production and sexuality, with no intervening paterfamilial rights reposited in slave men. Indeed, the master's absolute "third party" rights abrogated or significantly decreased the potential for the formation of an intervening and (at least partly) preemptive conjugal community of entitlement.⁵⁸ "[T]he father of a slave is unknown to our law," but no parental rights resided in the fact that "[s]lavery was inherited in the female line" for the slave mother either, except by indulgence of the absolute owner/patriarch of the entire slave "family."⁵⁹ While one might concede that denial of paterfamilial rights constituted no great tragedy for women and children, the assault on the general rights to be or have a social father and to form and sustain families and sexual/spousal partnerships of one's choosing surely was.	66
Despite his location in the heart of slaveowning territory, Stephen fails to register an awareness of this longstanding and intractable legal and political reality or the bitter ongoing struggles surrounding it. Moreover, it is clear that he, an armchair jurisprudent, does not represent feudal law correctly in the full amplitude of its gendered permutations and patriarchal underpinnings. Attorney General Wylly, in his later contribution to the stream of correspondence on the subject, explained that the basis for his previous legal opinion was a finding in Littleton, Coke, and Blackstone "that while villanage prevailed in England, if a freeman married a niefe without consent of her lord, she became free by operation of law; and that her lord might maintain an action against the husband for the loss of his slave or niefe."⁶⁰ Wylly himself seems oblivious to the fact that, even if one were to entertain the dubious possibility of its applicability to West Indian slavery, this feudal common law statute would not necessarily have had pertinence in the first-mentioned case in question, of a male slave marrying a free woman, since statutory properties or rights under feudalism were deeply gender-differentiated and unequal.	67
Indeed, it seems that, under certain conditions, marriage, by virtue of the (free) status and male-gender rights of the husband, did imply emancipation for a female villein ("niefe"). Both Stephen and Wylly appear to have missed the essential point that villeinage and serfdom were institutionally mediated throughout the entire system by the paterfamilial rights of the husband and father and that the institution of marriage was both imposed upon the villein class and women and shared (unevenly, of course) across the spectrum of class, as well as by male and female conjugal partners and kin. This kind of (unequally) shared and mutually limiting institutional matrix had no place in the West Indian version of slave society, where the enslaved were defined as permanent outsiders and racial "others" with respect to European institutions of property, marriage, church, and political community.	68
The contrast with slavery is, however, instructive. Villeins were embedded in a continuous chain of hierarchical relations bound together by unequally shared landed property, institutional homology, and remote historical ethno-national community. Institutions such as partible and impartible inheritance, primogeniture, dowry, dower rights, and so on were indices of this internally continuous ethno-national hierarchy of agrarian class and property relations. Marriage here (as elsewhere) was a key institutional instrument in the execution of the mode of re/production and in the social distribution of persons and goods. It was much more than an instrument for ensuring the stability of sexual, conjugal, and parental relations and the integrity of the moral and spiritual order. It was a class and patriarchal device that conferred both benefits and liabilities in relation to rights in persons and rights in things, depending on one's position in the class and gender order. As such it was a profoundly "mixed bag" for villeins, and differently so for different class and gender subjects, but slaves were altogether excluded from it, and therefore from both its benefits and its liabilities.	69
In the end, Stephen shows himself ready to compromise to preserve both marriage and slavery—if forced to concede the civil case—by accepting a reduced and exclusively religious form of marriage for the slaves (like his metropolitan counterparts): [O]r if it shall still be found that the present obstruction to their marriages has a real foundation in law, that obstruction may be easily removed by a declaratory law allowing them to marry with consent of their masters, but securing the owner's property in them as well after marriage as before. And then, let the marriage of slaves be ever so great a nullity in the eye of the civil law—let it be granted to be in their case no civil contract; yet it will remain as much a religious contract, and be as binding on the parties in the eye of the Supreme Lawgiver as the marriage of freemen, whether white or black. (Stephen to Cameron, 224)	70
What are the key relevant features of this marriage principle, which included (most classes of) villeins but excluded slaves, and the specter of which so threatened the planter class?	71
The fact that slaves, unlike villeins, were outside of the ownership system, outside of the institutional matrix, and outside of the race and the nation provides an easy clue. But it is fair to note that the case was not entirely limited to the condition of slavery. The marriage rights of white indentured servants in the West Indies were also severely restricted, on pain of punishment and exaction of compensation in monetary fines or labor services.⁶¹ White indentured servants shared features with the sub-category of propertyless and unmarried servants incorporated as dependants into agrarian and artisanal households in the feudal and proto-industrial eras in England on the one hand, and with colonial slaves as (what I choose to call) deracinated isolates on the other.⁶² But here the conditions of transportation and labor were formally voluntary (excluding considerations of involuntarily transported convicts and penal labor). Colonial indentures were time-limited contracts that were supposedly freely entered into. Indeed, it was freedom of contract that allowed single white servants to voluntarily enter into contracts that transmitted extensive property rights in their labor services to the master or mistress (and temporarily suspended their power to freely dispose of their own persons and services).⁶³	72
Indentures were typically contracted with unattached singles, male or female. Under the terms of the service indenture, marriage interfered with the master's or mistress's property rights in the labor services of the servant. To marry, the servant had to leave service having fulfilled the contract, or, if s/he married in defiance of the master or mistress, s/he had to pay restitution in money or in service for the loss of or damage to those property rights. Marriages between free persons and indentured servants were similarly criminalized, with the former subject to similar pecuniary and nonpecuniary penalties. Illicit sexual unions resulting in the pregnancy of a servant incurred fines or extension of labor services.⁶⁴ Lazarus-Black points out that in Antigua, where one out of five whites was a servant in 1720, a "fair number of the colonists, therefore, could not marry unless they could obtain permission from their employers, buy out their contracts, or pay heavy fines."⁶⁵	73
Once the terms of the contract were fulfilled, the (gender-specific) rights of the servant as a freeborn Englishman or woman, for example, were restored (and often amplified by small grants of land). Indentured service was characterized by a combination of medieval concepts of relative property in persons, freedom of contract (of single persons) and conditions of transportation and colonialism. Under the latter conditions the individually contracted servants to some extent shared with the slaves the fate of deracinated isolates, albeit temporarily and within a more welcoming racial and cultural landscape. It is therefore not surprising that in Thomas Thistlewood's thirty-six-year log of eighteenth-century Jamaican plantation life we find, scattered among the daily compendia of slave offenses, occasional references to white servants running away and even to white servants staging uprisings alongside enslaved blacks.⁶⁶	74
Another, and related, shared condition of these two categories of deracinated isolates (as a purely legal condition) was the lack or minimalist nature of statutory gender differentiation with regard to roles, rights, and responsibilities. For example, an Antiguan law originally enacted in 1698 imposed equal penalties on the parties to an illegitimate impregnation of a fellow servant by another: "If any servant shall get another with Childe, they shall each of them serve twelve months, or pay six pounds Money to the Master or Mistress of the woman servant.... "⁶⁷ The language in the rest of this law, covering marriage prohibitions and penalties, is likewise startlingly gender-neutral. Penalties imposed on free persons incurring, through marriage, loss of or damage to property rights in a servant's labor had no regard to the gender of the servant (and therefore of the defendant).⁶⁸ The unusually high level of female-headed households among whites, despite the smaller numbers of women, might also be attributed to certain shared features in the condition of deracinated isolates.⁶⁹	75
The discursive suppression of gender differentiation and the gender-neutral juridical treatment of all parties as atomized and standard units of labor—except in the case of biological reproduction—found its highest expression in the pre-amelioration slave codes. Indeed, one of the main "concessions" of amelioration was the explicit recognition of gender-role difference in the form of various maternal protections and rewards and encouragement of intact heterosexual conjugal families. Gaspar makes a similar point when he says in reference to the late eighteenth-century amelioration initiative in the Leeward Islands, "[t]he subject of natural increase of the slave population naturally raised questions about the treatment of slave women, who, for the first time in the history of the Leeward Islands, emerged in the laws related to slaves with an identity separate from slave men."⁷⁰ The 1820s legislation proposals were even more preoccupied with the process of gender differentiation. One of the proposals, meant to protect the modesty and privacy of women, and against which the planters vigorously protested, was a ban on the flogging of women. The planters objected that such a ban would only increase the insubordination of the female slaves, who, according to the Grenadian legislators, were "the worst subjects upon an Estate," and, according to the Barbadians, "evince[d], at all times, a greater disregard to the authority of their owners than the male slaves."⁷¹ The Grenadians promised, however, that "when flogging [became] necessary, every care should be taken to avoid the indecent exposure of the Person."	76
The kind of marriage that white servants were free to contract once they fulfilled the terms of their indenture and from which slaves were permanently excluded was, of course, premised on a monogamous conjugal community constituted through a sexual division of labor, property, and attendant mutual rights and responsibilities. As noted earlier, Euro-Christian marriage did not confer equilateral rights on spousal partners but gave men superior rights over women and the family patrimony. In marriage, adult women were inducted as dependants of roughly same-generation men, thereby losing their "rights of person." By English law, "the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of her husband: under whose wing, protection, and cover, she performs everything.... "⁷² In keeping with this, the medieval peasant wife has been described as "the subordinate partner in a cotenancy where the conjugal property has been placed under the guardianship and control of her husband."⁷³ Marriage was part of an institutional nexus by which adult men came into social, political, and juridical independence, property ownership, and patriarchal power, proportionate to their standing in the society. It established lineage and filiation, settled the devolution of property, and instituted a form of household government over dependants—women, children, and servants—that was homologous with the wider polity, "organized according to the same fundamental principles and along similar lines."⁷⁴ Marriage was both an inner-sanctum purveyor of patriarchy and, for better or for worse, the institutional medium of class reproduction (including reproduction of labor power and peasant property, ensuring continued surplus production).	77
So, intimately bound up with the withholding of both civil and religious marital rights from the enslaved was the desire to avoid having to endow black male heads—perceived through patriarchal lenses as the chief potential rivals of ruling class men—with an independent and communal base of authority and property, that might, moreover, mediate, limit, and generally interfere with exploitative planter-class access to their women and children. The slaves were seen as vastly unfit for and undeserving of an institution that turned all classes of women in England into respectable Mistresses (and some into genteel drawing-room hostesses) and men into proper household patriarchs and responsible citizens and trustees of the nation.	78
Later on, the emancipationist missionaries had an opposite concern—how to convince the ex-slaves that the obligations of freedom required a regrouping into proper male-headed families. Unlike Stephen who saw no incompatibility between marriage and slavery, the missionaries saw marriage as an indispensable condition of freedom, and of its proper enjoyment and execution. In their leadership or facilitation of the "free village movement," which established independent settlements of ex-slaves in the post-emancipation period, the missionaries urged that church, family, and school (the old planter class's bogeymen) form the cornerstone of the new era and an exorcising bulwark against the old. Marriage at last "restored" men to their proper and rightful places as heads of the family, the community, and ultimately the race and nation under the tutelage of the British Empire. In this they drew not only upon the biblical injunction on wives to obey their husbands, but also on longstanding British common law traditions that saw marriage as coterminous with adult male status, economic independence (through farm property, artisanal skills, or self-disposing labor), and political freedom and/or subjecthood. Moreover, in their mentoring of the ex-slaves the missionaries emphasized to them the equation between freedom and having a wife at home.⁷⁵ Being a full-time wife and mother was seen as a prerogative of male freedom and evidence of accession to a "better class" of producer. It marked the distinction between the "protected" woman whose labor belonged to her husband and family (and God); and the "unprotected" woman whose labor still belonged directly to the estate owners and employers. During this period it was deemed, well beyond the purview of West Indian reality, that "only 'barbaric men' made their women work."⁷⁶	79

Slave Marriage as Guarantor of Systemic Reproduction and Stability?
Next, Stephen makes a case for the political, economic, and social expediency of slave marriage in relation to the long-term security of the system. Here, he is on more solid and well-traveled practical political ground. His first remarks about the benefits of marriage seamlessly blend pragmatic and moral concerns. He taps into a line of thinking long resonant in certain translocal circles of the time that the enduring failure of West Indian slaves to reproduce and "increase the species" was directly related to the absence of the institution of marriage, or its "moral" equivalent, among them. These circles were indeed deeply divided as to the ultimate cause of this absence. Some blamed the plantocratic state and society for their withholding of this basic human right as well as for their own opportunistically cultivated licentiousness (of which the slaves were hapless victims). Others blamed the alleged absence of faithful monogamy among the slaves on the natural licentiousness and moral incapacity of a savage or backward race.	80
Stephen is characteristically equivocal on the question. According to him, "nothing can be more destructive of the peace and harmony of society, nothing more injurious to the increase in population, nothing more preventive of civilization and moral improvement, nothing in short, can tend more to enervate the body, to enfeeble the powers of the mind, and render a man less fit for all the duties of life, (luxury and drunkenness alone excepted,) than that promiscuous and licentious intercourse, which always takes place between the sexes where marriage is discountenanced or by any other means obstructed" (Stephen to Cameron, 219). For support, he quotes a letter published in 1808, address

"A Civil Inconvenience"? The Vexed Question of Slave Marriage in the British West Indies

CECILIA A. GREEN

Understanding the Context of the Debate Discursively

The Dilemma of Rev. John Stephen: On the Question of Slave Marriage

No Marriage or a Certain Kind of Marriage? Religious Implications

No "Civil Inconvenience"? The Civil Implications

Slave Marriage as Guarantor of Systemic Reproduction and Stability?