Chapter 1.0. The Law of Slavery, Introduction

To expand on the evidence for the emergence of race-based slave law that we covered in Module 7, ch. 2, this module begins with an overview of the development of American slave law by Peter Hoffer, from his book Law and Society in Colonial America, pp. 121-26. As his explanation suggests, it was only in the later 1600s that slavery itself had begun to create the standard American racial categories based on color.

This discussion thus provides context for understanding the systems of slave law based on color, or “black codes,” that developed across the American South over the eighteenth century. The slave codes reveal the assumption that slavery applied almost exclusively to Africans and African-Americans, regardless of language or religion. In 1705 Virginia passed the first broader slave code, and other colonies soon followed its example. The South Carolina Slave Code of 1740 (below, ch. 1.1.) provides a typical, and influential, example.

The most striking American exception from English law was known as chattel slavery, that is, standard slavery, in which the slave was the “chattel,” or personal property, of the owner, and could be bought and sold, as opposed to other forms of forced labor. Slavery was common in African, Asian, and Mediterranean so­cieties but had no foothold in English law. The labor shortage in some of the colonies was chronic, however, and colonial economies depended upon agricultural productivity. The natural increase of farm families provided cheap labor in New England. The middle colonies were ware­houses of immigrant population, filled with young men and women from Scotland, Ireland, and Germany. Although southern tobacco and rice planters pleaded for indentured servants and eagerly put to work those who came, life in Maryland, the coastal areas of Virginia, and, later in the century, the Carolina settlements was never hospitable to the indentured servants. Only a few of those who survived the hardships of their servitude and the “agues and fevers” of the Chesapeake became competitors of the large planters; most moved west and south seeking a new start.

A crisis in agricultural production on the large southern plantations thus loomed by the 1680s. Tobacco prices were falling and the cost of labor for tobacco, a labor-intensive crop, had become a critical element in the continued profitability of southern staple-crop agriculture. The planters tried to enslave the Native Americans, but the experiment failed. They would later import more and more “transported” convict laborers and live in fear of crime, though in fact very few convicts of all those transported to the Chesapeake were ever prosecuted for committing felonies or misdemeanors.

Overwhelmingly, planters turned to the West Indian solution: mas­sive importation of Africans. African-Americans could be pitted against newly arrived Africans, and Guineans against captives taken from Angola. Originally regarded as indentured servants, Africans were progressively debased by their masters’ law. Africans became servants for life, then slaves. The Dutch and later the English made fortunes shipping captives from West Africa and the West Indies to Virginia and the Carolinas. The trade particularly appealed to capital-starved New England merchants. Soon slave ships from Boston and Newport, Rhode Island, were plying the “middle passage” between the west coast of Africa and the colonies.

Borrowing from the laws of Barbados and Jamaica, English West In­dian sugar islands on which the average life span of African slaves was less than two years, the burgesses of Virginia gradually but inexorably elaborated a system of chattel slavery that had no precedent in English law. These “black codes” made color the badge of slavery. Slaves were property to be bought and sold, given away and inherited.

Many elements of the new law of slavery emerged in the late 1600s, in a piecemeal fashion. In 1662 the Virginia House of Burgesses made the condition of mulatto children dependent on the status of the mother, diverging from the patrilineal descent decreed by English law. Slave masters henceforth could claim as slaves the offspring of their illicit unions with female slaves. In 1667 the burgesses reminded masters that baptism of slaves did not elevate them from slavery. In 1669 the assembly prospectively exculpated masters who killed a slave in the course of “due correction.” In 1680 the legislature made it a felony for slaves to carry a weapon, leave the plan­tation without a pass, offer resistance against any free person, or lurk about, the last an open-ended offense capable of infinite extension, pun­ishment for all of which was thirty lashes on the back “well laid on.” Later criminal statutes elaborated this law, effectually denying Africans and African-Americans the basic rights of any white inhabitant of the English colonies–jury trial by peers when accused of a serious crime, compulsory process against accusers, the right to counsel, and the right to address the court in their own behalf.

Whites who maimed or killed slaves could not always avert punish­ment by claiming that they had been insulted or that the slave had mis­behaved. When, in August 1743, the justices of the peace in Richmond County brought overseer William Lee into court to answer for killing Will, a slave, with two hundred lashes with a cat-a’ -nine-tails and a cowskin whip, Lee answered that he had merely been correcting a re­bellious bondsman. Lee averred that Will was “very stubborn” and correction was necessary. The justices of the peace thought otherwise; Lee was bound over to stand trial at Williamsburg for manslaughter. Lee had exceeded the bounds and was called to account, but had Will beaten William Lee to death, the trial would have been swift and the punishment hanging and dismemberment, sure. Two months later in North Carolina Matthew Hardy beat his slave Lucy and then tied her to a ladder and burned her to death; he was discharged without pun­ishment. In North Carolina killing a slave did not become a felony un­til 1774.

The law of slavery spoke to the master as well as to the slave. As Winthrop Jordan has written, the master was “required to punish his runaways, prevent assemblages of slaves, enforce the curfews, sit on the special courts and ride the patrols,” at best a burden in time and expense for very busy men, at worst an invitation to brutality. Those free persons who challenged the black codes were ostracized or criminally punished, for too often to suit the planters white servants found common interests with slaves. Humane masters themselves soft­ened the rigors of slavery, even freeing their slaves, though colonial policy frowned on manumission and slave codes for a time forbade it.

All over the South chattel slavery spread, and with it a concept of bondage wholly without precedent in English law and exceeding in severity Roman, Dutch, French, and Spanish law, as well as the laws of Islam and the customs of many African tribes. Chattel slavery well fit an emerging transatlantic commodities market. The great southern planters would become one of the wealthiest groups of agriculturalists in the world.

Few slaves came to the hinterlands of western New York, Pennsyl­vania, and New Jersey, but slaves were brought to the port cities of the North; New York City, Philadelphia, Newport, and Boston had visible slave populations. By the middle of the eighteenth century slaves con­stituted nearly 20 percent of the male work force in New York City and Philadelphia. New Englanders bought few slaves, in large measure be­cause New Englanders did not have the capital to purchase slaves, in part because the land and the growing season did not return invest­ments in chattel bondsmen and women. Wherever slavery spread, however, there followed some variant of the black codes.

The Slave Conspiracy of 1741 in New York City graphically demon­strated slavery’s corrupting effect on law. In the 1720s and 1730s New York City had been the site of a series of minor crime waves involving slaves, free blacks, and whites. In April 1741 eight fires set within five days seriously frightened New York City’s inhabitants. Suspicious city officials were informed that the fires were part of a slave uprising set in motion at an alehouse by the docks. A white alehouse keeper, John Hughson, was a suspected burglar himself, and at his tavern gathered free blacks and slaves. Rumors became accusations, then grand jury indictments. Trials quickly followed, at the end of which thirteen blacks were burned at the stake for treason, sixteen slaves were hanged along with four whites for arson, and more than seventy blacks were banished from the colony. Along with the slaves, Roman Catholics were persecuted. They too were “others,” defined by negation as dangerous de­viants on the edge of proper society and always suspected of evil designs against His Majesty’s Protestant colonies.

Justice Daniel Horsmanden, who sentenced many of the convicts, regarded the slaves as poor wretches but aimed much of his fire at the colonial assembly for not passing a stringent black code. He insisted that blacks–free or slave–who lived among whites always had to be watched. New Yorkers’ fear of arson was well grounded, but the dis­memberment of slaves for treason is a clue that something more was at stake. There was no ban in the city against slaves congregating in groups of three or more, nor was there a requirement that slaves abroad at night have passes from their masters. Such a system would have been difficult to enforce in a densely packed, commercial community. Slaves in New York City could not be watched and controlled as they could be on the plantation. The show trial of the slaves in 1741 worked as a substitute for more stringent slave law. The trials were designed to reassert the masters’ control over the slaves.

Even where slavery flourished a handful of bondsmen and women gained their freedom through petitions to the courts. Free persons (called “next friends”) brought these suits to help slaves held in bond­age after they were to be freed by their masters’ wills or bequests. Some lawyers and judges tried to protect slaves and promote freedom. George Wythe and Thomas Jefferson in Virginia, for example, argued a series of cases in forma pauperis (without payment) for mulattoes (i.e., those that were considered to be half white and half black) trying to free themselves from masters. In Howell v. Netherland (1770) Jefferson even lectured the Virginia General Court on the barbarity of assuming that the offspring of a woman set free at the age of thirty-five should have to remain a slave until he or she too was thirty-five. He lost the case, however. The court construed the applicable statute to require every mulatto to remain in bondage until that age.

Law not only created slavery; it could mitigate the “peculiar institu­tion” as well. On the eve of the Revolution a strong tide of abolitionist sentiment was sweeping the northern cities, in part inspired by the continuing efforts of the Quakers, in part motivated by the reverse of the labor shortage that had, a hundred years before, induced Virginia planters to adopt chattel slavery. In the aftermath of the French and Indian War there was not enough work for free laborers in New York City, Philadelphia, Boston, and their satellite towns. Slaves competed with free artisans, shipbuilders, construction workers, cartmen, and other “mechanics” for day labor. In the North slavery began to die an eco­nomic death similar to that later forecast, incorrectly, for slavery in the South with the crash of tobacco prices after the Revolutionary War.