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Virginia Led the Way In Legal Oppression
By A. Leon Higginbotham Jr.
May 21, 1978
A HOMELAND of Thomas Jefferson, James Madison, George Washington and Patrick Henry. Virginia justifiably claims that from the earliest years it singularly provided significant leadership for all the colonies. In many ways, relatively, it was a model of agricultural and economic success as one of the first colonies. It played a major role in precipitating the American Revolution and in shaping the destiny of the new nation after 1776.
Yet, tragically, Virginia was also a leader in the gradual debasement of blacks through its ultimate institutionalization of slavery. It pioneered a legal process that assured blacks a uniquely degraded status - one in which the cruelties of slavery and pervasive racial injustice were guaranteed by its laws. Just as they emulated other aspects of Virginia's policies, many colonies would also followed Virginia's leadership in slavery law.
About the last of August, there came to Virginia a Dutchman of Warre that sold us twenty Negers.
John Rolfe, secretary and recorder of the Virginia colony, made the above entry toward the end of August 1619. It survives as the earliest known record dating the arrival of blacks at an American colony. These first "Negers," who arrived in Jamestown a year before the Pilgrims landed at Plymouth Rock, had not volunteered for the voyage. They had been brought to America unwillingly, captives of Dutchmen who had apparently seized them for a Spanish ship to sell them to the labor-short colonists.
In 1619, there was not as yet a statutory process to especially fix the legal standings of blacks. These first blacks were not exposed to the systematic degradation to which later blacks would be subjected. Yet they were not free. Where did they stand? After centuries of investigation and discussion, scholars are still unable to agree.
There is sufficient evidence to consider at least the possibility that these first black Jamestown arrivals, as well as many of those blacks who followed them in the next few decades, were treated by the early Jamestown colonists more or less as additions to the already existing social class into which whites had often been pressed - that of indentured servant. Some scholars have argued that for at least half a century the status of blacks in America remained incompletely defined - socially somewhere at the bottom of the white servant class perhaps, but nowhere near chattel slaves.
In 1641, the colonial court decided on one of the most fascinating cases of this era. In re Graweere was a pivotal case in that it highlighted the ambiguities of the black man's position in Virginia during the early years. While under the law he was not the complete equal of the white man, nevertheless he had not been fully stripped of all basic human rights. John Graweere, a "negro servant unto William Evans," petitioned the court for permission to purchase the freedom of his young child from a Lieutenant Sheppard, the owner of the child's mother, in order that the child "should be made a Christian and be brought up in the fear of God and in the knowledge of religion taught and exercised by the church of England." The court ruled in favor of Graweere's petition and ordered:
that the child shall be free from the said Evans or his assigns and to be and remain at the disposing and education of the said Graweere and the child's godfather - who undertaketh to see it brought up in the Christian religion as aforesaid.
Graweere illustrates the judicial system's early flexibility and its approval of masters who designed a labor system that gave even black servants or slaves some rights and privileges and their masters some rights to manumit. Yet the same legal process that sanctioned the right of Graweere's master to allow his slave some degree of economic autonomy also sanctioned the right of other masters to impose perpetual servitude on blacks by will or contract. To be sure, a will or a contract was only an expression of the maker's desire and intent, and not a judicial or legislative pronouncement. yet the presence and presumed validity of these agreements is significant for they reveal that, prior to any statutory authorization, blacks were being "singled out for special treatment which suggests a general debasement of Negroes as a group." For instance, in a 1646 contract, Francis Potts sold a black woman and child to Stephen Carlton, "to the use of him forever." Another deed records William Whittington's sale of a girl merely 10 years old; looking to the future he noted that she was sold along with any issue (children) she might produce for her and her children's "lifetime and their successors forever."
In 1640, the Virginia Court demonstrated that it would not be reluctant to subject blacks who were not already enslaved to lifetime servitude. In Re Negro John Punch, three runaway servants, two white and one black (John Punch), were captured in Maryland and each sentenced to be whipped; but the judicial parity stopped with the whipping. The court then went on to impose different sentences for the same "crime":
one called Victor, a dutchman, the other a Scotchman called James Gregory, shall first serve out their times with their master according to their Indentures, and one whole year apiece after the time of their service is Expired . . . and after that service . . . to serve the colony for three whole years apiece, and that the third being a negro called John Punch shall serve his said master or his assigns for the time of his natural Life here or elsewhere.
Thus, although he committed the same crime as the Dutchman and the Scotsman, John Punch, a black man, was sentenced to lifetime slavery. For the white servants, an additional four years of service was deemed sufficient punishment.
In Re Warwick, a cease decided by the court in 1669, the court's entire opinion was its one-sentence conclusion:
Hannah Warwick's case extenuated because she was overseen by a negro overseer.
The clear inference to be drawn from the decision is that the society was more interested in making sure that blacks did not exercise authority over whites, and that white servants knew this, than in prosecuting the infractions of Hannah Warwick. Thus, the court intimated, by extension, that whites, although wrong, could refuse to submit to the authority of blacks, even when blacks were performing as agents of the common master. If we err in the inference that Hannah Warwick was white, the case nevertheless exemplifies a debasement of blacks. For even if Hannah Warwick had been black, the court's view presumed that blacks were so inferior that the black overseer could not legally command the compliance even of another black.
The decision warned white masters that they should be reluctant to entrust to blacks any position of power, and further communicated to white servants that the court would exonerate whites (or possibly blacks) who had committed wrongs while under the supervision of blacks. Thus, Warwick subscribes judicially to the view that the function of blacks in Virginia was to be ordered and never to order others.
Through the decisions of the colonial courts in Virginia during the first 50 years, the message became increasingly clear: the court's intent to promulgate legal doctrines was predicated on its assumption of the social standard that blacks were particularly inferior. By keeping its decisions consistent with that assumption, it made the legal sanctioning of slavery possible if not probable.
IT WAS NOT UNTIL 1659, 40 years after the arrival of the first blacks in Virginia, that a direct reference to blacks as slaves appeared in Virginia legislation. A 1659 statute imposed reduced import duties on merchants bringing slaves into the colony:
Act XVI. Dutch and all strangers of Christian nations are allowed free trade if they give bond and pay impost of ten shillings per hogshead laid upon all tobacco exported to any foreign dominions; always provided that if Dutch or other foreigners shall import any Negro slaves they, the said Dutch or other foreigners, shall for the tobacco really produced by the said Negroes, pay only the impost of two shillings per hogshead, the like being paid by our own nation.
The purpose of this statute was to encourage the international slave trade by providing financial incentives to the "Dutch and all strangers of Christian nations" participating in the slave trade. But of greater significance historically is the fact that this statute clearly reflects legislative recognition of the increasing value slave labor had acquired in colonial Virginia.
By 1660, it appears, the composition of the labor force in colonial Virginia - previously made up of white and blacks in various degrees of servitude - began in include in increasing numbers another category of laborers, blacks in lifetime bondage. The eventual crossover to an almost total slave labor force would not be complete, it seems, until a century later. The statutes of the next few years, therefore, while reflecting recognition, if not direct sanctioning, of perpetual servitude for some black laborers, concern themselves not with the minority of black slaves but with what were the special problems during the period of the transition - when white indentured servants, black servants and totally enslaved blacks worked side by side. One of the problems was apparently white-black alliances for the purposes of escape.
In 1660, a statute dealt with one of the early attempts of the legislature to put a stop to such attempts.
Act XXII. It is enacted that in case any English servant shall run away in company with any Negroes who are incapable of making satisfaction by addition of time that the English so running away shall serve for the time of the Negroes' absence as they are to do for their own by a former act.
The reference to "Negroes who are incapable of making satisfaction by addition of time" is an implicit acknowledgment of negro lifetime servitude, which some scholars have interpreted further to be an actual expression of legal recognition of Negro slavery.
THE MOST MAJOR slave codes were dated 1680-1682. They not only synthesized all the piecemeal legislative deprivations of the previous 20 years but introduced others incorporating some of the harshest customs and traditions that had evolved to control the colony's indentured servants. At the same time, the codes were emphatic in denying slaves any of the privileges or rights that had accrued to white indentured servants in this same period.
Despite some limitations on their rights, white servants were never the victims of any legislative plan to deprive them of such basic options as the right to sue one's masters for ill-treatment or for one's freedom, and white servants were never precluded from owning property. Nor does the argument that masters feared slave revolts, which of course could destroy the colony, fully explain why the legislature denied basic rights to blacks, mulattoes, and Indians while granting some of those privileges to white indentured servants.
An argument can just as easily be made that the white indentured servant or freedman precluded from the decision-making processes of the government and subjected to harsher treatment was probably as dangerous as the slave. Certainly, the totality of deprivations cannot be explained by any assumption that blacks were more necessarily prone to violence. There is no evidence to substantiate this. And whatever the relative threats posed by each group, the fact is that nonwhites alone were legally deprived of all basic human rights. Only against nonwhites did colonial society feel it could use anything and everything - the legal structure, the militia, even armed private citizens - to keep human beings in a submissive state.
With each succeeding decade, the Virginia legislators, expressing a mixture of fear, greed and prejudice, simply reduced the privileges and rights of blacks. They rationalized their actions on the ground of security, without religious or moral qualms whatsoever. They no doubt convinced themselves that blacks were so inferior that their subhuman status deserved no recognition of human rights. And just as often, they probably made no effort at all to find a rationale; they simply dehumanized those who were black because of the color of their skins and because blacks were largely powerless to prevent it.
It may be no more than the accident of black skin that precluded the empathy of white Virginians. The black looked enough different from the white Virginian to spare the white any guilt over his legal cannibalism. The white Virginian, enriching himself by depriving blacks of rights, was further spared by the convenient differences in skin color and hair texture from having the thought cross his mind: "There but for the grace of God go I."
The 1680 statute would become the model of repression throughout the South for the next 180 years. The following provisions are illustrative of its codification of prejudice and the degree to which the statute attempted to make sure that blacks would be recognized as legally inferior:
Act X. Whereas the frequent meetings of considerable numbers of Negro slaves under pretense of feasts and burials is judged of dangerous consequence [be it] enacted that no Negro or slave may carry arms, such as any club, staff, gun, sword or other weapon, nor go from his owner's plantation without a certificate and then only on necessary occasions; the punishment twenty lashes on the bare back, well lain on. And further, if any Negro lift up his hand against any Christian he shall receive thirty lashes, and if he absent himself or lie out from his master's service and resist lawful apprehension, he may be killed and this law shall be published every six months.
If blacks could not leave the owner's plantation without a certificate, their mobility was destroyed; if blacks could not carry arms, the potential to resist was reduced. And, if blacks could be whipped for lifting up a hand against any Christian - regardless of the provocation - then the dehumanization process was complete because blacks were legally precluded from responding in a manner thought normal for whites or most other human beings.
DATA INDICATE that almost from the time blacks arrived in Virginia there were interracial sexual relations between Indians, blacks and whites.
In a struggling colony where the population was largely composed of Europe's undesirables and where women were scarce, it is unclear whether illegitimacy, per se, was so great a stigma. However, the colonial assembly thought sexual relations between whites and blacks to be special problems requiring a special penalty:
Act XII. Children got by an Englishman upon a Negro woman shall be bond or free according to the condition of the mother, and if any Christian shall commit fornication with a Negro man or woman, he shall pay double the fines of a former act.
This statute, upon first reading, does not clearly reveal the built-in bias and preferences of its drafters. "Englishmen" as used here is probably a synonym for whites generally or at least white Englishmen. The fact that interracial fornication caused a double fine corroborates the thesis that an interracial sexual act was considered to be far more immoral or deviant than fornication by persons of the same race.
The statute also expressed more than mere social taboos or religious precepts. Implicit in the statute were the economic preferences and advantages to whites who sought to extend servitude and slavery. Prior to the passage of this statute, it had been an open question as to whether the normal doctrine of English law would be applicable - that the status of a child would be dependent upon the status of the child's father.
Because (at least in part) of the scarcity of white women, there was probably more sexual contact between Englishmen and black women than between white women and black men. It was, therefore, significant from an economic standpoint whether a child derived its status from its mother or its father. Once it was established that the black woman's child took the mother's status, the master class gained a crucial economic advantage - its labor force reproduced itself. If the legislature had followed the English legal doctrine that the status of the child was determined by the status of the father, the thousands of blacks or mulattoes whose fathers were white would have been free. The subsequent 1691 statute (Act XVI) was far more comprehensive. By the language of its preamble, it was designed to prevent "that abominable mixture and spurious issue . . . by Negroes, mulattoes and Indians intermarrying with English or other white women" and provided that:
whatsoever English or other white man or woman, bond or free, shall intermarry with a Negro, mulatto, or Indian man or woman, bond or free, he shall within three months be banished from this dominion forever.
And it is further enacted, that if any English woman being free shall have a bastard child be a Negro she shall pay fifteen pounds to the church wardens, and in default of such payment, she shall be taken into possession by the church wardens and disposed of for five years and the amount she brings shall be paid one-third to their majesties for the support of the government, one-third to the parish where the offense is committed and the other third to the informer. The child shall be bound out by the church wardens until he is 30 years of age. In case the English woman that shall have a bastard is a servant she shall be sold by the church wardens (after her time is expired) for five years, and the child serve as aforesaid.
Several racial disparities were written into this statute. After 1691, the white man or woman was to be penalized if he or she legitimized the relationship with a black person by marriage; in that event, they would be banished from the colony forever. Yet, apparently, the white man could remain in the colony if he merely carried on a meretricious relationship with a black woman. The possibility of pregnancy significantly lessened the white woman's chances of maintaining a clandestine relationship with a black man. Yet, the statute did not penalize a white man for having sexual relations with his slave and it was not a crime for a black woman to have a bastard child by a white man. Both acts became a crime only when a white English woman had a black man's child out of wedlock.
EVEN BEFORE 1700, the Virginia legislature had begun to attack the normal human emotions of blacks by attempting to deprive slaves of any hope of eventual emancipation. It did this by temporarily and conveniently reversing its philosophy and legislating that one right, at least, of the property holder was not inviolable - the right to give up his interest in his property. Legislation of 1699, in fact, had made manumission impossible in some instances: previously the master's right to determine the nature and length of servitude imposed on his slaves had not been challenged.
By 1691, there was an absolute prohibition against freeing a black or mulatto without also providing for transportation of "the negro out of the country within six months after such setting free." Free blacks were viewed as undesirable elements in the population, a clear indication that racist attitudes had hardened. The implication of such a statute is obvious - blacks had only one function in Virginia society and that was to labor perpetually for the benefit of their owners.
Later provisions further limited the master's right to manumit his slaves. Manumission became possible only upon approval of the governor and council as a reward for public service, which included, by definition, revealing a slave conspiracy. Slaves were punished when their masters ignored such statutory mandates. The legislature authorized the seizure and re-enslavement of blacks, mulattoes, and Indians who had been improperly freed.
NOT ONLY DID the Virginia council fail to enact legislation to protect slaves, the council enacted no legislation at all extending to slaves any of the rights granted to servants. In fact, as far as slaves were concerned, the 1705 statute increased their master's control over their lives. For example, Chapter 34 provided that a master who killed his slave in an attempt to correct the slave would not be held to have committed a felony.
Virginia's 1705 statute exemplifies the "maturation" of the Virginians' legislative process and their views of blacks as nonhuman beings. They seemed to view blacks as if they were fungible products - just like trees, tobacco or other disposable commodities. They seemed horrified over the fact that some slaves would become "incorrigible," without ever pausing to question why.
Did the legislature in 1705 think that blacks might also have an innate desire for freedom - just as their white masters sought it? Was it the lust by blacks for freedom which made them incorrigible? The language of statutes so often masks the human suffering which is imposed by statutory fiat. The statute permitted the court to sanction punishment for the purpose of "terrifying other blacks" - terrifying them so that they would not become incorrigible so that they would not dare to seek freedom.
Thus the judicial system, which historically is cited as a refuge of justice for the weak and dispossessed, was utilized by colonial Virginia to sanction brutalizing blacks rather than to protect them. One obligation did remain for the court. The legislature recognized at least one type of value inherent in each slave. It provided that:
for every slave killed, in pursuance of this act, or put to death by law, the master or owner of such slave shall be paid by the public.
Thus, by their statute of 1705 the legislature most carefully protected the economic values of the master and disregarded the human value of a slave's life.
