Faculty of Arts Department of English
and American Studies English Language and Literature
The Legal Status of African Americans in Virginia and South Carolina from the Beginning of 17th Century to the Mid-18th Century
Bachelor’s Diploma Thesis
Supervisor: doc. PhDr. Tomáš Pospíšil, Dr.
I declare that I have worked on this thesis independently,
using only the primary and secondary sources listed in the bibliography.
I would like to thank the supervisor of my thesis doc. PhDr. Tomáš Pospíšil, Dr. for his guidance, support and patience which contributed a great deal to the completion of the thesis.
Table of Contents
“The Fundamental Constitutions of Carolina :March 1, 1669”. The Avalon Project at Yale Law School. 21 April 2008 . 44
“Universal Declaration of Human Rights”. Know Your Rights. 21 April 2008. 44
Traces of the stereotypical image showing the United States of America as a country of freedom, wealth and happiness, and as a guardian of democracy and peace in the world, could be found in the constitutional and political documents of the United States. Even the ideas of the very first European settlers pictured America as a “city upon a hill.” However, this image is no longer valid. Furthermore, it was not valid in the 17th century too.
When the settlement of North America began, it was not unusual to degrade some people into an inferior position—often considering them to be just a piece of property. This treatment, known in Europe from the ancient times, was brought by the colonists to the North America.
By the force of political, economic, and social circumstances, a new form of slavery was created. Thousands of black people were taken from their homes and enslaved. Their lives depended solely on the will of their owner. The oppression developed into a form of chattel slavery based on race that changed the status as well as the everyday life of African Americans. Along with cruel behavior of individual slave owners went the tough laws that were continually depriving blacks of their humanity. Especially the Southern states passed a great number of slave laws which affected the everyday life of black workers. The more dependent on slave labor the whites were, the stricter treatment they applied on the blacks. It was almost impossible to get through the boundary between free men and slaves.
Legal regulations often follow the needs of real life: they react to current events, and try to solve pressing problems in society. This implies that there is a certain gap between the emergence of a problem and the legal reaction to it. At first, social and economic factors enforce a change and then, after it has been proven that the change is really necessary, a legal document is issued. This being so in American colonies, the institution of chattel slavery came into existence because of many factors and the legal recognition was just an official reflection of the life. Consequently, the development in individual states was in many ways similar and different at the same time. Although these factors varied from state to state, they led to a quite similar result. In fact, these factors influenced the spread of formation of chattel slavery as an institution and also the following development and content of slave codes.
South Carolina and Virginia were slaveholding states. On the one hand, slavery in Virginia developed gradually throughout the 17th century. Blacks were not slaves from the beginning and the legislative effort played a significant role in shaping the legal status of blacks. On the other hand, South Carolina was familiar with the institution of slavery and, according to an unwritten customary law, African Americans were treated as things.
Slavery in these two states developed in a different way and each state had to deal with different issues and social problems. Nevertheless, their legislation was in many aspects similar and led to the equally hard conditions that black people had to face. The aim of the thesis is to examine and compare, especially from the legal point of view, the formation of chattel slavery in Virginia and South Carolina. To achieve this goal a method based mainly on comparing statutes regulating similar areas in the two states was chosen. The comparison is accompanied by an analysis of the role which social and economical factors played in the enactment of the statutes.
Roots of Slavery and the legal status of a person nowadays
To understand the legal status of African Americans in the 17th and the 18th centuries, it is necessary to explain the approach towards the status of a person throughout history and also to define what the legal status of a person means and what rights and freedoms a person has in modern society.
Slavery appeared in known history even in the earliest periods. People owned slaves in ancient times as well as in the Middle Ages. Thousands of years before Jesus was born, slave labor had created the Seven Wonders of the Ancient World. Even the Bible mentions the existence of slavery, especially The Second Book of Moses that deals with slavery in Egypt.
What has been said above suggests that there is a long tradition of keeping slaves; however, slavery in ancient times or in the Middle Ages has never been as discussed a topic as slavery in America. Why? The reason is that Americans transformed the original form of slavery into a different institution. The enslaved people were usually taken from enemy nations during wars or colonization. Those people represented aliens and therefore did not fit into the established society, thus, the only known way of dealing with them was slavery. It is important to note that their status was not fixed forever. After accepting the social rules, earning money or converting to the true faith, they were able to regain their freedom. This system forced the enemy to accept the culture and to assimilate into the more powerful nation.
The English, French, and Spanish settlers brought this understanding with them to North America. However, they modified it to suit their needs, and consequently created a specific variety of slavery that had not existed before. That is quite strange because chattel slavery was being formed during the “age of reason” – the Enlightenment, when issues like liberty came forward. Rousseau’s works The Social Contract and The Discourse on Inequalitywere among the sources of inspiration for Jefferson and his Declaration of Independence (Hooker). For example in The Discourse on Inequality, Rousseau in response to the contemporary theories of government (for example to Hobbes and his famous quote “homo homini lupus”) advocates liberty which he considers to be one of the most important values of humankind.
I shall not stay here to inquire whether, as liberty is the noblest faculty of man, it is not degrading our very nature, reducing ourselves to the level of the brutes which are mere slaves of instinct, and even an affront the Author of our being, to renounce without reservation most precious of all His gifts, and to bow to the necessity of committing all the crimes He has forbidden, merely to gratify a mad or a cruel master; or if this sublime craftsman ought not to be less angered at seeing His workmanship entirely destroyed than thus dishonoured. (Rousseau, The Discourse on Inequality)
Rousseau ridicules the fear of liberty and the necessity to be controlled by “a cruel master.” In brief, he touches the idea of the right of resistance, which took its real form in the War of Independence. Nevertheless, even the basic rights were at the same time denied to thousands of black slaves.
It took centuries for all human beings to be recognized as persons with guaranteed rights and freedoms before the law. Nowadays, the United States of America have ratified many international human rights conventions which ban any act of discrimination. The United States has passed its Bill of Rights, joined United Nations and ratified the Universal Declaration of Human Rights.
The basic definitions of the status of a person, as it is understood these days, are to be found in international documents which were written to secure liberty and humanity. The first and most important international document is the Universal Declaration of Human Rights issued by the United Nations in 1945. The declaration states that “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood” (UNDHR). It also does not differentiate between people on account of race, color or religion.
Furthermore, according to the Universal Declaration of Human Rights, a person has right to live, to legal protection of his personality—of the body as well as of the reputation and private sphere—to marry and found a family, to choose a job, to have some leisure time, to maintain one’s culture or to be recognized as a person before the law. Among the basic freedoms, according to UDHR, belong the freedom of speech, of movement and residence, of thought, of conscience, of religion and of peaceful assembly. In fact, almost all these rights and freedoms were violated in American colonies.
Enslaved African Americans were reduced from people into things. They were subjected to purchases, they had to obey their owners’ commands, their families ware torn in pieces by the flourishing trade, they were denied to have the status of full human beings.
What is now respected as a standard that nobody in democratic countries would even think about was a few centuries ago a dream that thousands of black people in America used to dream every night.
The status of African Americans when they were first brought to North America and the individual approach of the states to the transformation
The institution of slavery as it was known at the beginning of the 17th century in its traditional form (described above) was brought to the North America from Europe. There were always some differentiating criteria which determined who was to become a slave. Black people in America were determined to be slaves by the color of their skin that could not be changed and thus African Americans did not have a chance to conform to the white society.
However, American Negro slavery in its distinctive form did not come into existence all at once. It happened gradually and the social, economic, and geographical factors had a great influence. For example, the origin of the colonists and their previous experience with slavery, the proximity to the Caribbean Islands, such as Barbados, where the transformation had already taken place, was very significant. Thanks to these factors, the pace of the shift to slavery based on race differed in individual states.
Virginia and South Carolina are almost neighboring states; however, their approach to the status of black servants was very different right from the beginning.
The development of social attitudes towards Africans brought to America took quite a long time. It started by a period of relatively equal treatment, similar to the treatment of the lowest class of white servants. Later, blacks were seen more and more often as inferior, but by accepting Christianity and adopting the proper (meaning that of a white Christian) way of life blacks could still attain quite a good social status. However, at the end of the 17th century, neither their ability to adapt to the social environment, nor their faith prevented them from becoming slaves.
The lowest class of the early American society was formed by poor people who came to North America seeking a new life in the new country. For the possibility to set up their own farm, the poorest ones often had to sign a contract of servitude. By signing it they bound themselves to work for a certain period of time in exchange for a piece of land. These so called indentured servants received after the expiry of their servitude a piece of land and support from their former master and could live independently (Barker). At first, this principle was applied generally to each servant, without regard to whether he was black or white.
According to Africans in America, Antonio the Negro was one of the first black servants in Virginia. He was brought to Virginia in 1621 and listed as a servant. After a few years, he became free, got married, had children and owned land as any other white servant in the colony. Berlin mentions that Antonio, after being freed, accepted the new name, Anthony Johnson, and was so well off that he could purchase a slave, John Casar. Antonio’s neighbors claimed his slave, but he won the lawsuit (Africans in America). Therefore, beyond any doubt, he had a wide range of rights: to marry, to own property or to sue. That put him into the position of a recognized member of the society. He attained it mainly by assimilating himself into the popular culture, precisely as any slave could in previous times. Berlin concludes that “Freedom was measured by the degree of communal integration, not by ability to secure individual autonomy” (Berlin 33).
At the same time, the oppression of blacks was slowly beginning to appear. A court decision from 1640 applied a different treatment on blacks and whites (Africans in America). By the decision concerning three runaway servants, the court punished two of them that were white by a couple of additional years of servitude, but John Punch, a black man, had to serve for the time of his natural life.
The Africans in America website mentions decisions proving a lower status of blacks that resembled real slavery rather than servitude, for example the John Graweere Case (1641) that concerned a free father who petitioned for the grant of freedom for his child. John Graweere had his child with a woman who was a slave and therefore, probably because of a custom, the child was also taken to be a slave. Nevertheless, Graweere was successful with his claim and the child was made free. This case proves that in 1641 there already existed a custom of inheriting the status of the mother in Virginia.
However, the situation was not so bad because Blacks had a considerable amount of rights: they could petition for legal protection or gain their freedom using judicial power, clearly against the will of their ”owners,” which is clearly visible in the Philip Cowen Case (1664) and the Elizabeth Key Case (also presented on Africansin America). Philip Cowen was a black servant whose owner died and in his will ordered his heir to release Philip Cowen after eight years of servitude, but the heir was reluctant to do so and tried to prolong Cowen’s servitude as much as possible. Finally, Cowen had to seek legal protection and was freed by a court decision.
The situation of Elizabeth Key was similar. She was to serve for nine years, but because of the fact that she was transferred a couple of times to different owners, it happened that each new master prolonged her servitude. Unfortunately, she had to serve for 19 years and did obtain freedom only after a petition to a court; however, the decision was not the one that freed her forever. It was overturned by a higher court and the case finally appeared before the General Assembly whose order freed her. Philip Cowen and Elizabeth Key were able to protect their rights just as white indentured servants did. On the one hand, they were abused and the practices of their masters tended to enslave them for life. On the other hand, there was a way out of it; there was a remedy for the mistreatment.
Other inequalities between blacks and whites were also created by legislation. ACT X passed by General Assembly in January 1639/40 gave fewer rights to black people “ALL persons except negroes to be provided with arms and ammunition or be fined at pleasure of the Governor and Council” (Virtual Jamestown, ACT X).
This Act concerning bearing arms was one of the earliest statutes that were issued. The reason why blacks were not to be provided with arms could be seen in the fear of the new alien element that appeared within the white society. The black color was perceived as a mark of the devil and, therefore, it was not advisable to trust the black people. The fear of otherness that had enslaved people many centuries ago was fueled by Christian symbolism of good and evil—of the light and the dark. Consequently, the suspicion towards blacks doubled and the social background for the shift towards racial slavery could “successfully” continue.
Only four years later it was stated that a black person belonged to the category of things under taxation: “And because there shall be no scruple or evasion who are and who are not tithable, It is resolved by this Grand Assembly, That all negro men and women, from the age of 16 to 60 shall be adjudged tithable” (Virtual Jamestown, February 1644/5-ACT VIII). Later on, an exception was made for the blacks born in America and for those born to free parents (Virtual Jamestown, March 1657/8-ACT XLVI. What Persons are Tithable). On the one hand, that is evidence that there had not existed the strict race division that would deem all the blacks to be slaves before 1705, because an African American born in Virginia was not treated as a tithable thing. But on the other, black people started to be subsumed under the category of things, not persons.
Let us divide the society into three groups: free men, servants, and servants for life—slaves. The free men owned land and used the work of the other two groups. But a servant after the expiry of his years of servitude was to be freed and to obtain land, money or another support to set up a farm and family. It must have been quite costly. Moreover, in the second half of the 17th century there was a lack of free land to grant (Takaki 7). Summing this up, it was much easier to own slaves who served their entire life without any claim on anything.
Takaki in his book A Different Mirror also concentrates on another issue that was significant for the shift towards slavery—on the resistance of black and white servants. The crucial thing is that the servants ran away or rose against their master together, whites as well as blacks, together being more dangerous. Whites were not satisfied with the reality as they found it in North America. Because they worked and shared the conditions with blacks, whites spread these ideas among the black population. Realizing this fact, a specific solution came into the minds of the landowners: “By importing and buying more slaves, they would decrease the proportion of white indentured servants” (Takaki 8).
So the change of the legal status of African Americans started to shape. As mentioned above, there already existed a division according to race, although it could not be described as a generally applied rule. The first step towards the mass scale degradation was taken in Virginia in 1662 when a statute was issued stating that children would inherit their mother’s status (Virtual Jamestown), making, thus, slavery a hereditary issue, not a matter of integration or religion. Another step was taken by ACT III from 1667 which enacted that “the conferring of baptisme doth not alter the condition of the person as to his bondage or ffreedome ” (Virtual Jamestown, ACT III). In brief, the way towards freedom was disappearing. At first, it was religion that made difference between slaves and free people, but after 1667 the color of skin prevailed. Takaki sums it up:
To them (Virginians), religion and race mattered greatly. Initially, religion served to identify different racial groups. The English colonists viewed themselves as Christians and Africans as heathens. But this line was shortly ruptured by the conversion of Africans to Christianity…….(after 1667) The distinction was no longer between Christianity and heathenism or freedom and slavery, but between white and black. (Takaki 5)
Not only was the status of a slave fixed on the mother, but their rights were further restricted. In September 1663, ACT XVIII, prohibiting servants to go abroad without a license, was issued and proclaimed it unlawful for a slave or a servant to move away from the plantation without the permission of his owner. For securing this each local administration had the power to pass its own bylaws (Virtual Jamestown).
The shift may be further illustrated by the example of Anthony Johnson, the former slave. A court decision from 1670 ordered the confiscation of his land, because he was black:
By virtue of a writt granted to me from [names listed here, which are illegible] John Stringer Escheator for the countys of Northhampton and Accomack to enquire what lands Anthonio Johnson late of Accomack County either in his life tyme. . . a jury of free. . . in the said Accomack County to enquire. . . doth declare that the said Anthony Johnson lately deceased in his life tyme was seized of fifty acres of land now in the possession of Rich. Johnson in the County of Accomack aforesaid and further that the said Anthony Johnson was a negro and by consequence an alien and for that cause the said land doth escheat to this . . . . (Court Document Regarding Anthony Johnson, Africans in America)
Another important issue is the inconsistencies of defining a black person by law. While some of the older pieces of legislation treated a slave rather as a personal property, later a slave is declared to be a real estate. For example, ACT I about the casual killing of slaves from 1669 deals with slaves as with things by stating that a correction of a slave leading to his death is not to be regarded as a felony (Virtual Jamestown), because the master has a right to destroy his own property. This right to destroy the property represents the part of ownership that relates more to personal property than to real estate that could be sometimes almost impossible to destroy. You can pull down a house, but what about a field? It makes a problem. So if the slaves were to be real property it would not go so naturally to pass ACT I.
On the contrary, in an Act issued in October 1705 declared that ”all negro, mulatto, and Indian slaves, in all courts of judicature, and other places, within this dominion, shall be held, taken, and adjudged, to be real estate” ( CHAP. XXII, Virtual Jamestown). Nevertheless, there also existed an exception for merchants: the slaves that they imported to the country remained their personal property until they sold them to a Virginian. Moreover, the act also considered slaves to be chattels in case of inheritance or executions. However, in case of purchase of a slave it was equal to the purchase of land, accompanied by listing in a registrar (which is typical for the land transfers). The Virginia Assembly, thus, created something in between—a special category of slaves whose status in some aspects resembled the chattel property, but officially blacks were proclaimed to be real estate.
Slavery in Virginia forms a perfect example of gradual development of the institution of slavery. It started by indentured servitude and more or less equal condition with whites of the same status and finished by a status of a slave based on race that was hereditary and could not be avoided by integration into the society, e.g. by converting to Christianity. The shift lasted nearly a hundred years while many single statutes were issued, each slowly depriving Blacks of part of their rights. Virginians had not as much experience with chattel slavery and, therefore, their approach to slavery had to form itself through this lengthy process full of contrasts and contradictions.
The formation of slavery in South Carolina was very much influenced by the experience from British colonies, for example from Barbados, an island in east Caribbean. South Carolina’s legislation took its basis from Barbadian slave codes. Sirmans points out that “…immigrants to South Carolina from the West Indies brought with them the slave code of those islands especially that of Barbados, and South Carolina copied its slave laws from those of Barbados” (Sirmans 462). Barbadians, according to Sirmans, built their system of slavery more on customs than on legal statutes. The system probably operated on this unofficial basis for about 40 years, since in 1630 Barbadians already inscribed blacks the hereditary status of slaves and the enactment came in the late 1670s. Furthermore, Barbadians as early as in 1672 degraded blacks to chattel property (Sirmans 463).
The transformation from indentured servitude in South Carolina therefore did not take as much time as in Virginia and the inequality and discrimination on racial basis appeared comparatively early. Slavery was simply a part of life in South Carolina. In The Fundamental Constitution of Carolina, the authors said: ”Every freeman of Carolina, shall have absolute power and authority over his negro slaves, of what opinion or religion soever” (Fundamental Constitution of Carolina, 1669)
These borrowed standards led to terrible consequences. Negroes and white servants did not have similar opportunities to set up their independent life. While white servants were not automatically considered as serving for life, blacks were. Moreover, Berlin notes that religious matters were not of a significant importance in South Carolina. Blacks were simply not able to attain their freedom by converting to Christianity, even in the early years. In 1690 first statute chiefly devoted to the regulation of slavery was passed (Sirmans 465). According to it, slaves were legally defined as freehold estate, only in case of using slaves to pay debts they were treated as chattel property. Besides, their life was strictly supervised:
Slaves needed written permission to leave their master’s residences; slave owners were required to make regular searches of slave quarters foe weapons; and slaves who ran away or struck their masters faced severe penalties, which were whipping, branding, slitting the nose, and emasculation. (Sirmans 465)
The strict treatment was applied also because South Carolina slaves needed better managing. There was a constant Spanish threat. The competition between the British and the Spanish crowns in the New World had its impact on slave policy. It was more likely for a slave to achieve his or her freedom in Spanish Florida and these runaways were dangerous for the obedience on South Carolina’s plantations. Not only did the slaves try to escape, but Spanish raiders used to attack plantations and steal slaves. In 1686 one such raid occurred and as Berlin says, about a dozen of slaves was stolen.
The government of South Carolina demanded their return, along with those who ran daily into Spanish towns, but Spanish officials peremptorily refused. Instead, put the fugitives to work for wages…. And allowed them to marry….providing runaways with all the accoutrements of freedom except its legal title. (Berlin 44)
The promises of the Spanish crown did not give slaves many rights, although, as South Carolina government complained, many slaves were lured by it and risked the danger of being caught and severely punished. The reason was probably in the lack of those basic things that were offered in Florida. Even though the 17th-century legislation consisted prevailingly of customs, it may be inferred that slaves lived in constant dependency on their masters without the possibility to exercise their free will, their marriages were restricted and they had no right to own or gain property; unlike in Virginia where Anthony Johnson acquired a piece of land, got married and raised children as any other former white servant.
Furthermore, according to Sirmans, towards the end of the century, the condition of slaves worsened so much that they had almost no protection against their masters. Killing of blacks was no longer regarded as a crime of murder but as a lesser crime. Meanwhile, if the slave was killed while being corrected it was not criminalized at all. Berlin mentions that even if the slave was willfully murdered, the court could sentence the murderer to a maximum of 3 months in prison and a fine of £50 which should be paid to the owner as compensation (Berlin 73). Similar rules later appeared in other states, such as Virginia. This early appearance proves that the period of relative freedom in South Carolina was quite short.
In Brief, under the great influence of the Barbadian regulation of slavery, Blacks in South Carolina did not have the opportunity to gain freedom by accepting social rules of the white society. They were automatically treated as inferior with regard to the previous experience of the colonists. The oppression of Blacks was even strengthened by the need of effective control of slaves caused by the constant Spanish danger.
The status of a slave – Slave codes regulations
During the 18th century the transformation of African American legal status into that of slavery was finished and worked into details. The social circumstances forced governments to unify various customs and single acts into large and more comprehensible statutes that are called slave codes. Such a slave code regulated as many aspects of life as possible. Their main aim was to preserve blacks in their poor condition, to prevent them from gaining skills that would disprove their inferiority. Moreover the fear of slave rebellions got a strong echo in the legislation, especially in case of South Carolina. Virginia dealt with the issue of insurrections in a special act devoted solely to the offences committed by blacks, because its first slave code was issued quite early and did not pay appropriate attention to the issues of criminal law. In fact, each code reflected special needs of an individual slave state, having, thus, something in common, but containing also some special provision pertaining on particular issues.
Virginia slave code
The legal status of African Americans was being slowly changed by numbers of legislations that served as guidelines for the whites in order to unify the treatment. This unifying effort led to the enactment of Act Concerning Servants and Slaves, ACT XXII, in 1705 (Russel). This slave code set the basic rules that were applied in the state. It defined the condition of a black person, the restrictions, the treatment of a slave etc. Special attention was devoted to the racial separation of blacks and whites. It was not just a ban of intermarriages, but also parents of illegitimate children were punished. The act itself might be divided into two parts, the first dealing with white servants and the second with colored servants whose status was much worse. In spite of the fact that the expression “servant” is sometimes used for both white as well as colored the distinction created by this act is so striking that the term “slave” would more appropriately describe their condition; the expression “slave” appears only in the discriminating provisions. It is clearly visible that the goal was to separate blacks from the rest of the society and strengthen the feeling of their inferiority.
Section IV is of the key importance because it embodies the impenetrable racial boundary that chose race to be the criterion for defining the condition of a person. In fact any colored person was presumed to be a slave unless he or she would be able to prove the contrary. Furthermore, the way out of slavery by adopting Christian religion was banned forever. The following sections were specifying the possibilities for certain subgroups to relieve the burden of slavery from themselves. These subgroups were people who had been Christians and freemen before they were imported to Virginia. It might have happened that such a free person was caught by slave traders and sold as a slave to North America. These people had the possibility to pay themselves out of slavery. Such a person also could seek the protection of a court, although it was probably of little avail because his or her plead not to be a slave was of no importance, unacceptable as a proof. Nevertheless, for the non free and non Christians there was no way out of slavery. They could neither buy themselves out, nor prove their freedom in front of the court.
The rest of the free blacks who remained were deprived of their property, since no colored person could buy or own a servant. Especially they couldn’t have a white servant. The Act simply stated that ”And if any negro, mulatto……… shall, notwithstanding, purchase any Christian white servant, the said servant shall, ipso facto, become free and acquit from any service then due, and shall be so held, deemed, and taken.” (Russel, Section XI)
The second point of interest is formed by the provisions creating a strict boundary between white and colored people. Section XVI contains a general sanction for breaching the act itself, the punishment, thus, pertains to all cases except those that have its own sanction stated. For example a person who freed his or her slaves unless they were free before their arrival to America, was punished by ”thirty-nine lashes, well laid on, upon the bare back of such offender, at the common whipping-post of the county” (Russel, Section XVI). Nevertheless there were also special sanctions for offences concerning interracial intercourse. The interesting fact was that if a black female servant had mulatto child she was to be punished, not the father. Although, for a marriage with a black person whites, of both sexes, were put into prison for six months and the said marriage was not recognized by law. Also the priest who married such a couple did not escape; he had to pay a fine in form of ten thousand pounds of tobacco for each illegal marriage (Russel, Sections XVIII-XX). These laws were supposed to support the racial slavery and create an impenetrable wall between blacks and whites. It also should deter whites that had some compassion or positive feeling towards blacks.
The third group of provisions set out the rules for governing slaves. It included provisions against runaways, regulations of slave correction and of compensations for a killed slave. Slaves were obliged to obey the master and could not abandon the plantation on their own. They were bound to a certain place and when they wanted to move elsewhere it was only legal with a written permission issued by the owner. The Act introduced a system of powers and obligations that were to ensure safety in the country. The fines were imposed on those whites who permitted slaves belonging to other person to stay more than four hours on their estate; depriving, thus, fugitive slaves of possibility to find shelter easily. Furthermore, any white person was to be rewarded for taking up runaways.
…for the taking up of every servant, or slave, if ten miles, or above, from the house or quarter where such servant, or slave was kept, there shall be allowed by the public, as a reward to the taker-up, two hundred pounds of tobacco; and if above five miles, and under ten, one hundred pounds of tobacco: Which said several rewards of two hundred, and one hundred pounds of tobacco, shall also be paid in the county where such taker-up shall reside… (Russel, Act Concerning Servants and Slaves, Section XIII.)
The return of a fugitive slave was done by justices of the peace and constables who delivered the said slave to the owner, meanwhile the slave could be punished by appropriate number of lashes, up to thirty – nine (Russel, Section XXV). Whipping was to be ordered by the justice of the peace and the amount depended solely on his discretion. Occasionally, slaves were executed or killed while running away. Because of the fact that owners were in this way deprived of property, they should have received something in return. Masters could submit a petition to the court and after the value of the slave was proven, they received compensation from public money (Russel, Section XXXIX).
Another provision pertaining to runaways proclaimed it to be illegal for a slave to carry arms (Russel, Section XXXV). The key problem laid in powers that were given to anyone white to catch such a slave and deliver him to the local constable where the slave received twenty lashes without any legal procedure (Russel, Section XXV). The constable did not need to prove the guilt of the slave, nor did he need to keep a record of it. Slaves were simply whipped and sent home. Very interesting is the fact that some masters whose slaves were found with arms were liable for the damage caused by their slaves.
And also, if any damage shall be hereafter committed by any slave living at a quarter where there is no Christian overseer, the master or owner of such slave shall be liable to action for the trespass and damage, as if the same had been done by him or herself. (Russel, Act Concerning Servants and Slaves, Section XXXV)
Slaves, therefore, did not have the capacity to be liable for such offences (from the legal point of view). It has been similar to a damage caused by runaway horse when the owner had to pay damages to compensate the loss on somebody else’s property. The punishment imposed on the property was solely a private matter of the owner. As Section XXIV shows, the owners had unlimited range of ways that they used for correction.
And if any slave resist his master, or owner, or other person, by his or her order, correcting such slave, and shall happen to be killed in such correction, it shall not be accounted felony; but the master, owner, and every such other person so giving correction, shall be free and acquit of all punishment and accusation for the same, as if such incident had never happened. (Russel, Act Concerning Servants and Slaves, Section XXIV)
Murderers of slaves, thus, could escape justice. Although Section XXIV regulated correction and its results, the provision was to be easily abused because it gave the owners power over the lives of their slaves.
The Act also dealt with servants who were to serve limited period of time and then obtained freedom. The rights of servants were also restricted, but in comparison with slaves those restrictions were milder. On one hand, provisions such as Section XXIV did not pertain to servants. Similarly, the regulations about guns or apprehension of runaways contained just the expression “slave”, not “servant”. On the other hand, servants could not be sold while being ill; they should have received proper treatment, enough food and clothing which they could enforce in front of court – they had the capacity to sue; they should not have been whipped without an order from the justice of the peace; nor they should have been whipped naked.
And if any, notwithstanding this act, shall presume to whip a christian white servant naked, without such order, the person so offending, shall forfeit and pay for the same, forty shillings sterling, to the party injured: To be recovered, with costs, upon petition, without the formal process of an action, as in and by this act is provided for servants complaints to be heard; provided complaint be made within six monts after such whipping. (Russel, Act Concerning Servants and Slaves, Section VII)
In conclusion, Act Concerning Servants and Slaves elaborated on the concept of a slave as a piece of property. Blacks were utterly under the power of their master who had the right to determine destiny of his possessions. Freedom of movement was denied to them and the right to live also depended on the will of the master. Not only did this Act reduce black people into property, it also drove a striking distinction between black slaves and white servants. Consequently, it legalized a new form of slavery – slavery based on race.
South Carolina slave code
Unlike in Virginia, the legal status of slaves in South Carolina was nothing new. The treatment of slaves was governed by customs and there seemed to be no need for any detailed regulation. Although, the statute from 1690 proclaiming slaves to be chattel property proved to be no longer sufficient. The actual situation and customs enforced a complete shift to chattel bondage. Sirmans also points out that slaves were included among other property in inventories of deceased people where only personal property was to be listed. From the necessity for more precise definition stems a new legislation from 1696 that stated who was considered to be slave.
All Negroes, Mollatoes, and Indians which at any time heretofore have been bought and sold or now are taken to be hereafter Shall be Bought and Sold are hereby made and declared they and their children slaves to all intents and purposes. (Sirmans 465)
Nevertheless, there still was no real slave code. The pressing need for better regulation of slavery arose forty years later. The enactment of comprehensive legal document was enforced by social circumstances, especially by the rebellion that broke out in 1739.
By 1710 blacks began to outnumber white population in South Carolina (Africans in America) and the white elite was looking for an effective way of government of those slaves. Unfortunately, violence and fear were chosen. Moreover Spaniards on Florida issued a proclamation stating that slaves who would flee to the Spanish settlement St. Augustine would be treated as well as whites. This proclamation fueled the desire of blacks to escape along with the white vigilance and strictness. As a result a Security Act, that permitted whites to carry guns even on Sundays to the church, was prepared to be issued in 1739. According to server Africans in America so called Stono rebellion began on 9 September 1739 just before the enactment of the Security Act (Africans in America).
A band of slaves march down the road, carrying banners that proclaim "Liberty!". They shout out the same word. Led by an Angolan named Jemmy, the men and women continue to walk south, recruiting more slaves along the way. By the time they stop to rest for the night, their numbers will have approached one hundred. (Stono Rebellion, Africans in America)
These slaves burned down about seven houses and killed all the white inhabitants. In total, there were 25 whites murdered (Africans in America).
Stono rebellion helped whites to realize the immense power of their slaves who should be put under a diligent supervision. Consequently, South Carolina lawmakers were forced to act. Margaret Washington observed
Stono was sort of the beginning of the development of large-scale slavery in South Carolina and the concept that the black population had to be utterly controlled. And the legislation that came out of Stono, the Negro Act, took away whatever liberties the Africans had. And even those liberties that they didn't have, which the planters allowed them anyway, even though it was breaking the law, all of those things were rescinded. (Africans in America)
The above described act was issued in May 1740 under the heading: An Act for the Better Ordering and Governing Negroes and Other Slaves in this Province (Law Library). This statute truly deserves the label “slave code”. The first precise legal definition of a slave was created and meant the end of the application of customary law. In this act slaves were included under the heading chattel property.
Be it enacted, that all negroes, Indians (free Indians in amity with this government, and negroes, mulatos and mestizos who are now free excepted) mulatos or mestizos who now are or shall hereafter be in this Province … taken, reputed and adjudged in law to be chattels personal in the hands of their owners and possessors and their executors, administrators and assigns to all intents, constructions and purposes whatsoever. (South Carolina Slave Code, Law Library)
This new slave code defined the status of African Americans in terms of personal estate. In fact, by choosing the Barbadian approach to slavery South Carolina set a basis for this distinctive form of chattel slavery in the United States.
As in case of Blacks in Virginia, freedom of movement of slaves in South Carolina was considerably restricted. Blacks were bound with the land they worked and lived on. It was impossible to move out, to visit somebody or simply to go into a town. Blacks could move only if they were accompanied by a white person or if they carried a special permitting letter on them (Law Library, Section V). Moreover, this restriction could be readily enforced by any white person who could freely question a sole Black who was obliged to prove that he had the permission. If he failed to do so, such a white person had the power to use force and to apprehend him and under specific circumstances even to kill him under Section V “…and if such slave (who had not the permission and was caught) shall assault and strike such white person (who apprehended the black one), such slave may be lawfully killed” (Law Library). Although the restrictions of movement were very similar in both states, all whites from South Carolina had immense powers connected with the apprehension of blacks. In Virginia, on the contrary, the white inhabitants had to be motivated by a reward to catch a fugitive. This was not necessary in South Carolina, because people were probably used to catching slaves who ran away to Spanish colonies. They rather concentrated on the extension of powers to make the control of slaves more effective and to prevent blacks from fleeing to Florida.
The Blacks that had at least some means had had a special possibility to eliminate this restriction of their freedom of movement by an agreement with the slave owner, as also follows from the Act. In other words they should pay for the possibility to go and work somewhere else than on their home plantation and thus rise some money for themselves. But it did not absolve them from the Section V, after the act was passed, these blacks also had to have a document with themselves every time they left the land they were belonging to. If the owner let them work somewhere else on the agreement not only the slave was endangered by the possibility of being caught, but also the owner was punished
Be it enacted, that no owner, master or mistress of any slave, after the passing of this act, shall permit or suffer any of his, her or their slaves to go and work out of their respective houses or families, without a ticket in writing under pain of forfeiting the sum of current money, for every such offence. (Law Library, Section XXXIII)
In this respect their condition worsened and the same measures were applied on all blacks. It stems from the necessity for absolute control over the slave mobility. If there were a single exception of the basic principle described in Section V, the rule would lose its effectiveness and it would have offered slaves some possibilities to run away.
Very similar was a restriction based on the Section XXXVI which was rather a limitation of the free time activities than of the freedom of movement itself in the narrow sense of the word and was created to back up Section V. Slaves according to the code did not have to work on Sundays and other holidays, therefore they had also some space for their own leisure. But according to the Section XXXVI, mentioned before, they were limited in the gatherings and social contacts, because they could maintain contact only within the piece of land they were living on. It also prohibited slaves to maintain some aspects of their culture brought from Africa, because playing drums, horns and similar instruments was considered to be a dangerous tool which could be abused for announcing the beginning of revolts. However, the enforcement was not so strict. Even though the right to enforce this law was also given to any white person, they were not entitled to use such severe means to correct such misbehavior “Be it enacted, that it shall be lawful for all masters, overseers and other persons whomsoever, to apprehend and take up any negro or other slave…..and the said negro or other slave or slaves correct by a moderate whipping” (Law Library, Section XXXVI).
The two sections accompanied by the enforcement represented the response to the Spanish threat along with the immense danger of slave revolts that should have been discovered before breaking up. If slaves had no possibility to gather, they could not make a plot. In the eyes of white people, drums were perceived as a part of military tradition, therefore they banned the usage of drums and horns to limit the possibility of marking the moment of the first stroke of a revolt, because slaves were distributed over the area staying on their plantations and couldn’t be summoned so easily. Clearly, the Act was designed to enable to whites to find out the prospective rebel or fugitive and to deter blacks from any attempt to escape from the bondage.
Another way how to prevent blacks from rioting was to keep them ignorant of their condition. Therefore the Act presumes the only possible status of a black as a tool performing manual labor. Section XLIV forbade slaves to do any intellectual work. First, it denied them the possibility to learn how to write. Second, it prohibited them to be employed by any writing. Furthermore, the masters willing to give their slaves some access to education could not do so.
Be it enacted, that all and every person and persons whatsoever, who shall hereafter teach, or cause any slave or slaves to be taught to write, or shall use or employ any slave as a scribe in any manner of writing whatsoever, hereafter taught to write; every such person and persons shall, for every such offence, forfeit the sum of £100 current money. (Law Library, Section XLIV)1 The main purpose of this provision was to eliminate the impact of liberal thoughts on the minds of blacks who could become dissatisfied with their condition even more. In brief, if slaves knew nothing else than the day to day labor, they did not wish to change their routine.
Although the Act primarily focused on the stricter limitation and better governing of slaves, it was also necessary to give slaves a motivation to stay with their masters voluntarily. This was done by setting up a certain standard of treatment that should ensure that the conditions on plantations were bearable. The act unified the local customs and gave slaves some rights and protection.
Firstly, slaves were to work for a limited period of time. They had free Sundays and other holidays and also the working hours during the week were limited to certain extend according to the season: “….not more than 15 hours in 24 hours, from the 25th day of March to the 25th day of September, or more than 14 hours in 24 hours, from the 25th day of September to the 25th day of March…”(Law Library, Section XLIV). The daily work occupied majority of slaves’ time, but officially no extra labor during the night or so could be demanded on blacks (Law Library, Section XLIV). In practice, this section was to be easily violated, because the punishment for white offenders was rather symbolic and the extra labor could gain them more money then they had to pay as a fine.
Secondly, slaves were to receive sufficient clothing, covering and food (Law Library, Section XXXVIII). They could also complain to the local justice to get relief. Nevertheless, the complaint could be done only via third white person, the charge could be disproved just by the owner’s plead and if the master was eventually found guilty the punishment was a mild one. Even from the text itself, it is clearly visible that it was very unlikely for slave owners to be found guilty:
….and if the said justice shall find the said complaint to be true, or that such person will not exculpate or clear himself from the charge, by his or her own oath, which such person shall be at liberty to do in all cases where positive proof is not given of the offence, such justice shall and may make such orders upon the same for the relief of such slave or slaves, as he in his discretion shall think fit, and shall and may let and impose a fine or penalty on any person who shall offend in the premises, in any sum not exceeding £20 current money, for each offence. (Law Library, Section XXXVIII)
The lawmaker gave an extensive space for the discretion of the local justice as well as for the accused owner to prove his innocence that it was hardly imaginable that the fine would have ever been imposed.
The Act for the Better Ordering and Governing Negroes and Other Slaves in this Province also dealt with criminal law and thus deepened the fear of the punishments for disobedience among the black population. The provisions followed the incidents that happened during Stono Rebellion. It paid attention to the act of arson, theft of another slave or killing (Section XVI). If these things were committed by a slave, it was classified as a felony and such a black criminal was in compliance with the Section XVI condemned to suffer a capital punishment. The same punishment was for homicide of a white person and inciting other slaves to run away.
Very interesting was the distinction driven between blacks and whites in case of killing a man of the other color. In case a white offender committed slave slaughter, the act distinguished between murder and “killing in heath of passion” in terms of punishment.
…if any person or persons whosoever, shall willfully murder his own slave, or the slave of another person, every such person shall upon conviction thereof, forfeit and pay the sum of £700 current money…..And if any person shall on a sudden heat of passion, or by undue correction, kill his own slave or the slave of any person, he shall forfeit the sum of £350 current money… (Law Library, Section XXVII)
No similar difference in intention could be traced in Section XVII which simply imposes capital punishment on any slave that killed any person (white or colored). The only way to exculpate somehow was that it happened in defense of the master or by an accident. Not only was there a significant misbalance between the punishments, but also slaves could only commit a murder.
The provisions concerning criminal law were particularly important, because according to them killing of a slave did not represent such a danger to the society. The punishment in form of a fine had the character of compensation to the injured party, the owner of the dead slave. On the contrary killing of a white person was punished by death. This difference reflected the status of blacks as chattels.
If any black person was accused of committing capital offence he or she had the right to have a form of a trial and to be heard by the judges (Section IX). These crimes were tried by a bench consisting of two justices in peace and three representatives of local freeholders, who shall hear the accusations which shall be brought against such slave, and his or her defense, and shall proceed to the examination of witnesses, and other evidence, and finally hear and determine the matter brought before them, in the most summary and expeditious manner… (Law Library, Section IX)
Furthermore, a testimony of a black person in comparison with the testimony of a white had almost no value, the right to be heard could not help the accused very much. However, it was there and at least meant that the alleged black offender could not be so easily overlooked.
To conclude aforesaid, the new slave code fixed the status of a slave in terms of the chattel property, slaves could be sold, hired or mortgaged freely. Blacks were also more restricted than before and more bound to their owners. Those rights given to the slaves were more declaratory ones than real ones, because the enforcement was rather controversial; if the slave owner was a clever cruel person, it was he who profited from the legislation. However, the main purpose of the legislation - to stabilize the situation and to prevent the revolts, could have been probably achieved.
Virginian reaction on the threat of insurrections
While Virginia passed its slave code at the beginning of the 18 century, they could not predict the slave revolts and therefore did not pay as much attention to the prevention of uprisings as it was done in the South Carolina’s slave code. Virginia slave code focused on provisions against runaways, but it did mention scarcely anything about criminal matters. The reason might have been seen in the lack of actual threat of insurrections and in the fact that there was not such a threat for Virginia slave owners as it was in South Carolina, in the form of Spanish promises to fugitives. Nevertheless, after Stono and other rebellions it was clear that the running away was not the only thing that might have happened and therefore white Virginians had to protect themselves as well. It was done via passing special acts to deal with this new danger.
For the enforcement of law in the time of insurrections Act XXXIX was issued in 1748 that was directed to military officers and gave them the authority to raise armed forces from the colony as fast as possible in case of any insurrection occurred. If the lower officers did not obey orders at once they had to pay considerable fines that should ensure their readiness to react and quickly suppress the revolt (Geography of Slavery).
In 1748 Act XXXVIII was issued that concentrated on the punishment of capital crimes committed by slaves. The Act was directed not only to the punishment for “ordinary” crimes, but also to the punishment of conspirators and revolting slaves (Geography of Slavery). It dealt with offences connected to the insurrections as well as with procedural law that set up basic principles of trials. Virginia chose a different approach than South Carolina. The existing restrictions of movement were preserved and provisions concerning poisoning, plotting against and threatening whites were added.
Firstly, Virginia employed a general guideline concerning conspiring and did not concentrated on the individual aspects that might have enabled to plan any insurrection
….if any negroe, or other slaves, shall at any time consult, advise, or conspire the murder of any person, or persons whatsoever, every such consulting, plotting, or conspiring, shall be adjudged and deemed felony, and the slave or slaves convicted thereof, in manner herein after directed, shall suffer death, and be utterly excluded all benefit of clergy. (Section II, Geography of slavery)
On the contrary South Carolina tried to eliminate the space for slaves to gather or unify in order to make a plot. However under the general rule, concerning plotting and conspiring, could have been subsumed a wide range of activities and therefore it could have been easily abused. Whites were thus able to put a considerable pressure on blacks.
Secondly, Sections III, IV and V were dealing with the issue of poisoning. Household slaves, who usually took care of the master and his children, had direct access to the food they ate and helped them when they were ill. If such a household slave had certain knowledge of natural medicine which could easily happen while they should learn how to recover from the whipping and diseases. This knowledge was frequently used for the benefit of the master, but it was also seen by whites to be so dangerous activity that they chose the way of absolute ban. Slaves venturing to prepare some kind of medicine were to suffer the most severe punishment
…and it will be difficult to detect such pernicious and dangerous practices, if they should be permitted to exhibit any sort of medicine, Be it therefore further enacted, by the authority aforesaid, That if any negroe, or other slave, shall prepare, exhibit, or administer any medicine whatsoever, he, or she so offending, shall be adjudged guilty of felony, and suffer death without benefit of clergy. (Section III)
Nevertheless there was a possibility of avoiding the death penalty. If the court found out that the medicine was prepared without a single trace of ill intent the accused slave was allowed to plead the benefit of clergy (Section VI). In practice, the said slave was tried by ecclesiastical courts and thus obtained a milder sentence. Moreover an exception was granted to those slaves who were ordered by their masters to make medicines (Section V).
Thirdly, black people almost could not oppose a white person. The Section XX makes it an offence
…if any negroe, mulattoe, or Indian, bond or free, shall at any time, lift his, or her hand, in opposition to any christian, not being a negroe, mulattoe, or Indian, he, or she so offending, shall for every such offence, proved by the oath of the party, before a justice of peace, of the county where such offence shall be committed, receive thirty lashes, on his, or her bare back, well laid on, by order of such justice. (Section XX, Geography of Slavery)
This Section contained term “lift his hand in opposition” that could be quite difficult to explain. It might have been directed on assaults, but taking into consideration the extensive interpretation of the term it may have covered also an act which was in fact a defense. Therefore, Section XX is another ambiguous provision that created space for the oppression of blacks.
Large part of the act was devoted to the procedural law. Similarly as in South Carolina, each black accused of committing crime which was punishable by death was to be heard in front of court. However, the regulation of court proceedings went into greater details and gave more chances for the defense, for example blacks could testify, the guilt should had been proven beyond reasonable doubt and there was also the possibility to obtain the benefit of clergy.
In Virginia as in most countries, black testimony had almost no value. Nevertheless it was so just in civil cases. In criminal cases in which a black was accused of a capital crime slaves were permitted as witnesses. Not to make it too advantageous for black offenders the witnesses were cruelly punished for false testimony
….to have given a false testimony, every such offender shall, without further trial, be ordered by the said court to have one ear nailed to the pillory, and there to stand for the space of one hour, and then the said ear to be cut off, and thereafter the other ear nailed in like manner, and cut off at the expiration of one other hour, and moreover, to receive thirty nine lashes on his, or her bare back, well laid on, at the public whipping post… (Section IX, Geography of Slavery)
It might have probably deterred blacks to go and testify at all. But the cited Section IX pertained only to non Christians. The importance of religion was key factor for the credibility. Even though a black was a free man, his testimony had the same value as that of a slave. The differentiating factor was Christianity, which might have also stood for the degree of assimilation into the white society. Not only could the black Christians give evidence in front of criminal court, but also in a civil procedure, although solely in the disputes among blacks.
Section VII contained the basic criminal law principle “in dubio pro reo” that comes from Romans and is used nowadays
Provided always, That if at such trial the court be divided in opinion, whether the accused be guilty, or not guilty, in that case, he, she, or they, shall be acquitted. Provided also, That when judgment of death shall be passed upon any such offender, there shall be ten days, at least, between the time of passing judgment, and the day of execution, except in cases of conspiracy, insurrection, or rebellion. (Section VII, Geography of Slavery)
The guilt of the black person had to be proved beyond reasonable doubt. In this respect the very same rule that was applied on whites was employed also in proceedings with blacks. To compare this with South Carolina slave code, the standard of proving was left aside and rather the speed of the trial was stressed there. The Section IX of the Act for the Better Ordering and Governing Negroes and Other Slaves contains words such as “in the most summary and expeditious manner” that indicated the way of examination of witnesses. On the contrary, Section VII of the Virginian Act XXXVIII not only assigned a key value to the evidence, but also it gave the convict another ten days before his execution. Those ten days could prevent the speedy judgments. Only in case of insurrections these rules weren’t applied and the exemplary punishment was preferred as it was done in South Carolina legislation.
The last thing to explain in procedural law is the possibility to plead the benefit of clergy. By pleading the benefit of clergy blacks could escape capital punishment for offences that were otherwise punishable by death. Nevertheless there were some cases when the offender couldn’t be allowed to plead the benefit of clergy. These exceptions were: manslaughter, burglary (if the stolen goods were worth more then twenty shillings), plotting and conspiring, and preparing medicines with ill intent. This benefit could also be obtained just once. The punishment had rather the character of social exclusion and stigmatization then of retribution.
…when any negroe, mulattoe, or Indian whatsoever, shall be convicted of any offence within the benefit of clergy, judgment of death shall not be given against him, or her, upon such conviction, but he, or she, shall be burnt in the hand, by the goaler in open court, and suffer such other corporal punishment as the court shall think fit to inflict. (Section VIII, Geography of Slavery)
In conclusion, Virginia was not under such pressure as South Carolina in dealing with criminal matters and therefore, Virginians took more care in determining the basic rules of criminal procedure. On one hand, they did not need to use speed trials and exemplary executions and thus gave the accused people better chance to defend themselves and be finally acquitted. They also expressed the principle that in criminal procedure the guilt should be proven beyond reasonable doubt and applied it on black slaves. In this respect the status of a black in front of a criminal court resembled more the status of a person than that of a thing. On the other hand, Virginians were as afraid of insurrections as white people in South Carolina. Therefore, they passed strict rules to prevent all possible misbehavior that may have led to a conspiracy. Moreover they used general guideline that encompassed also the types of behavior that the whites had not yet been able to imagine. Nevertheless, in some aspects the provisions of both countries were pretty the same, such as in case of the limitation of movement and gatherings.
The formation of the chattel bondage in Virginia offers a great opportunity for understanding of the transformation of the legal status of African Americans that took place at the end of 17thth century. Especially, the social and economic pressures made the landowners move from the work of white indentured servants to the slave labor. The social environment in which the indentured servants were forced to live in along with the fear of the unknown and different country created conditions for the development of slavery based on race in Virginia. The legal regulation of the status of black people was of great influence because it delimitated the boundaries between black and white people, between slaves and free people. One of the earliest delimitations of the status of black people in North American colonies appeared in Virginia as early as in the first half of the 17th century. These statutes were slowly dragging black people of their rights. The first slave code was issued in 1705—it is thirty-five years before South Carolina issued its code. The slave code covered as many areas of slave life as possible. The Act also reflected the necessity to distinguish between white servants and black slaves. This division was created to place white servants into a better condition and it enabled the abuse of blacks. In fact, blacks were no longer living a similar life to the white servants, they were separated and deemed to be inferior, they were bound to the land and to their master and they had no chance to escape from it in a legal way—even the conversion to Christian faith could not help them to achieve freedom.
South Carolina was an example of a totally different approach towards the status of black people. The Barbadian tradition of slavery set an example that South Carolina’s colonists simply followed. Their approach was based on customs and known standards of behavior. There was almost no need to enact them into the form of laws, because the position of black people as slaves was widely accepted and respected. The Barbadian slave code was a model that was transplanted into the environment of South Carolina. It may seem that South Carolinians were quite behind Virginians, but it is just a matter of the legislative activity. The customary law served well enough until 1739.
A very significant moment for both, Virginia and South Carolina, was the Stono Rebellion, 1739, that showed the consequences which the oppression of human beings could have. At first, it forced South Carolina to enact a comprehensive code that was to restrict all the freedoms that black people had had or that their masters had given to them. South Carolina’s slave code punished not only slaves, but also the benevolent masters. It also gave slaves some rights, for example their working hours were limited which gave them some time to rest or to improve their living, but in fact these were not effectively enforced and thus had little weight. South Carolina also had to face a danger from Spanish Florida which lured black people to run away. Therefore, special attention was paid to prevent slaves from running away and revolting.
The Virginians had to issue a special code dealing with insurrections and running away, because in 1705 they were not so terribly aware of these dangers (the first significant insurrection broke out in New York in 1712, [Africans in America]). In the Act XXXVIII the influence of the Church on Virginian society is quite visible. The religion, unlike in South Carolina, was of particular importance even in the early years, when the conversion could have save a black person from slavery. Notwithstanding, it was still influential in 18th century because the accused slaves could have pled the benefit of clergy which eventually could have saved their lives.
In brief, the following factors were of particular influence: the religion, the Barbadian legislation and the customary law, the proximity of Spanish Florida, and the fear of slave rebellions. They marked the development of the legal status of African Americans in Virginia and in South Carolina. However, those different approaches led in both states to the same result—to chattel slavery.
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Berlin, Ira. Generations of Captivity: a History of African-American Slaves. Boston: Belknap Press of Harvard University Press, 2003.
Hooker, Richard. “The European Enlightenment: Jean Jacques Rousseau.” World Civilizations. 21 April 2008.
Russel, Thomas D. “Virginia Statutes on Servants and Slaves.” University of Denver.21 April 2008 .
Sirmans, Eugene M. The Legal Status of the Slave in South Carolina, 1670-1740. The Journal of Southern History, Vol. 28, No. 4 (1962): 462-73. JSTOR 21 April 2008.
“Selected Virginia Statutes Relating to Slavery.” Virtual Jamestown. 21 April 2008 .
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1 Just to compare: if the owner let a black man or woman work overtime, the master was obliged to pay only from £5 up to £20 of current money, sec. XLIV.