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Labor, Race, and Slavery

Race gradually joined gender as a defining social category within the colonial law of personal status. The colonists had to secure sufficient labor in order to forge a viable economy capable of sustaining permanent settlement. They relied extensively on Elizabethan labor policy, but they produced a law of labor that varied significantly from English practices, especially in its recognition of slavery.

Because of a scarcity of workers, the colonies evolved two major schemes of labor. The first was indentured servitude (so-called because the servant signed a document called an indenture). This system organized labor, financed immigration, provided training (there were apprenticeship indentures, as in England) for the young, and offered a sort of welfare system for those too poor to care for themselves but capable of work. They became the personal property of their masters for a specified period of time, usually four to seven years. Their freedom during this period was sharply curtailed: they could not enter into a marriage contract, make business agreements, or engage in trade. Indentured servants did not give up all of their legal rights. Brutal masters were hauled into court for beating, starving, and sexually abusing their servants. Doubtless most such offenses, given the cowed state of servants, went unreported and unpunished.

The liabilities of indentured servitude were temporary, not permanent, and courts

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in all of the colonies rigorously enforced these labor agreements, freeing servants whose masters attempted to keep them beyond the term of their service. A Maryland servant who had been duped into signing a fifteen-year contract, successfully petitioned the governor and council for relief on the basis that it was "contrary to the laws of God and man that a Christian subject should be made a slave." 20 Nor did the condition of servitude apply to the progeny of the servants.

John Rolfe of Virginia brought the first blacks ("twenty Negars") to the American mainland in 1619. By 1641 blacks numbered only 250, and as late as 1680 there were only about 3000 in Virginia and fewer than 7000 in all the mainland colonies. Thereafter, the number of black slaves grew rapidly, and so too did the laws governing their status. The laws affecting blacks were gradually gathered into compilations called slave codes. The colonies settled in the late seventeenth and the eighteenth centuries borrowed heavily from earlier colonists. The Georgia Code of 1755 incorporated wholesale a ready-made body of law from the South Carolina Code of 1690.

On the eve of the American Revolution every colony legally sanctioned slavery, but some of the earliest provisions concerning slavery aimed to abolish or limit it. Rhode Island, Georgia, New Jersey, New York, and Massachusetts all passed legislation designed to curtail the peculiar institution. The trustees of Georgia, for example, agreed to exclude slavery for a decade after the founding of the colony out of a fear of racial upheaval. These and other concerns eventually yielded to powerful economic pressures. When South Carolina rice planters began to encroach on Georgia's lands, the Georgia proprietors decided to accept slavery lest their residents lose an opportunity to capture a part of the vibrant rice market.



Racial hatred, fear of social chaos, and economic necessity animated the laws governing slavery. The English held powerful assumptions about the cultural inferiority and sexual promiscuity of blacks that stirred a racially based paranoia. This sense of dread combined with a shift in agricultural patterns toward the staple crops of tobacco and rice, as well as declining mortality rates, made investments in slaves rewarding. In the Chesapeake and southern colonies, the planters accumulated large tracts of land that made possible the economics of scale on which slave labor depended.

The main features of slave law appeared in the slave codes. They defined slavery as a lifetime condition, distinguishing slaves from indentured servants. With the brief exception of Maryland, slave status was made inheritable through the mother. The codes were racially specific, because only blacks qualified for slavery. Thus, while white indentured servitude quietly disappeared (some blacks and Indians had also been servants), black slavery rushed forward to save the English colonists from the dilemma of having to enslave their own race. The law also deemed the slave to be an interchangeable commodity that could be bought and sold. The southern colonies, where the trade in slaves was most brisk, fumbled for almost half a century until finally concluding that they were "chattels personal" rather than real property.

The mother country knew no category of permanent slavery. The colonists concocted slave law in disregard of English authority. Virginia in 1661 formally adopted the whole of English law except where "a difference of condition" made it inapplicable. 21 The presence of blacks and the possibilities of the tobacco culture constituted such a difference, and the exceptions in the law had profound consequences for society. The racial animus that made slavery possible was only strengthened by the presence of ever greater numbers of black slaves. Legal degradation fueled social

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degradation, and under such circumstances the rights of blacks lost most of their substantive meaning. It was not necessary to extend the rights of Englishmen to Africans, because Africans were a "brutish sort of people." And because they were brutish, it was "at least convenient" to enslave them. 22

Reconciling the rule of law with human slavery occupied Americans from the beginning of this peculiar institution. Colonists attempted, as would later generations, to preserve legal legitimacy by placing form over substance. Regular quarter sessions and justice of the peace courts proved too slow for the kind of expedited justice that masters wanted when their slaves were accused of criminal acts. Special slave-trial courts, composed of two to three justices and several local freeholders, permitted masters to defend their slaves, to bring charges sometimes in writing, and to call witnesses. In Virginia and New York, the system "was often harsh, but it was uniform and not arbitrary. And it was rapid." 23

The emerging law of slavery bound whites as well as blacks. While colonial society was largely self-policing, the presence of large numbers of black slaves in the Chesapeake region and further south imposed on whites the irksome liability of mounting slave patrols. South Carolina's patrol acts of 1737 and 1740, for example, subjected white males to enlistment for terms of twelve months without pay. Patrolers had to contribute not only their time (usually at night, at that), but also weapons and mounts. Since opulent planters were few in number, the task fell most fully on small planters and nonslaveholders.

There was nothing inevitable about slavery. It was a product of human choice, and colonial law legitimated rather than created it. Virginia offers a compelling example. Before 1660 in Virginia there were both free and slave blacks, and the status of the latter apparently equaled that of white indentured servants. In one case brought in 1646 the sale of a slave from one master to another was made to depend on the slave's consent. In 1649 William Watts, a white man, and Mary, a black servant, were required to do penance for fornication like any other couple--by standing at Elizabeth River, Virginia with the customary white sheet and white wand. The rise of tobacco prices after 1660 and then the development of the rice culture in South Carolina and Georgia in the eighteenth century obliterated any possibility of racial harmony. In these colonies settlers from Barbados, where slavery had long existed as a customary practice outside the regular administration of English law, honed a hard legal edge on the peculiar institution. Colonial Americans bequeathed not only a socially bankrupt institution but a body of law to support it that would prove divisive (even disastrous) for centuries to come.

 


Date: 2015-01-29; view: 912


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