As mentioned previously, in the winter of 1619-1620 John Rolfe wrote a letter to Edwin Sandys, the Secretary for the Virginia colony. In the letter he mentioned that in August 1619 a Dutch ship had brought twenty "Negroes" to Virginia. The colony bought the "Negroes." The captain of the ship was named Jope, and the pilot was an Englishmen named Marmaduke. The ship seems to have come from the West Indies (Caribbean). The "Negroes" had Spanish names, such as Antony and Isabella and Pedro. Antony and Isabella became the parents of William Tucker (they worked on the Tucker plantation) in 1621 or 1622, and the child was christened in the Church of England in Virginia. It is interesting that the "Negroes" did not have African names, and that William was baptized as a Christian. These circumstances suggest that the Dutch had somehow gotten the "Negroes" from the Spanish. It is not clear whether they came from Africa or had been born in the Caribbean or lived there for some time. It also is unknown if they spoke Spanish (in which case they must have lived there long enough to have learned it).

Also, during the 1620s a "black" indentured servant named Antonio arrived in Virginia, and may be the black man later known as Anthony Johnson. This Anthony Johnson gained his freedom, and land, and imported English indentured servants and received headrights of 50 acres per person for them. He also imported Gesorroro, and a black servant named John Casor. Thus, at least some "black" people in Virginia were becoming free.

And in New Amsterdam in the 1640s the 11 African men were given their freedom, and land. The Africans were held in servitude for 18 years, which is longer than European indentured servants in America normally were held. But when the Africans petitioned for their freedom, it was granted. Thus, it seems that the Africans were not treated EXACTLY THE SAME as Europeans, but were not immediately treated as slaves for life. Instead, there was an intermediate, in-between state: not exactly the same, but not yet a slave for life.

However, in Virginia, in 1640, evidence shows that some black people began to serve for life. The evidence comes from sentencing records, from the county courts, for people who ran away from their employers.

RUNAWAY CASES OF 1640

In the summer of 1640 several cases came before the Virginia General Court, that involved runaway servants who had been recaptured.

The first case, dated July 9, 1640, involved three servants who ran away together from their master, Hugh Gwynn. They ran away to Maryland and were apprehended. The document says that "Whereas Hugh Gwynn hath by order from this Board brought back from Maryland three servants formerly run away from the said Gwynn, the court doth therefore order that the said three servants shall receive the punishment of whipping and to have thirty stripes apiece.

Victor, a Dutchman, was sentenced to serve out the remainder of his time of indenturement with his master, and then one additional year to the master. After that he must serve the colony for three years (a total of four additional years).

James Gregory, a Scotsman, was also sentenced to serve out the remainder of his time of indenturement with his master, and then one additional year to the master. After that he must serve the colony for three years (a total of four additional years).

John Punch was a Negro. His sentence was that he "shall serve his said master or his assigns for the time of his natural life here or elsewhere."

Question: Theoretically, what might John Punch have done that was different from or more than what Victor and James had done, which would account for why the former two servants got four more years and John got "life"?

Is any of this other possible, additional behavior mentioned in the court record? Why not?

If there is not a shred of evidence to prove that John punch did anything different from what Victor and James did, how can we account for the difference in the length of their sentences?*

John Punch is, to date, the first African or Afro-American person in the colonial United States who is documented and recorded to have served as a slave for life. This is the beginning of the practice of slavery (life servitude) for persons of African ancestry in the United States (colonial antecedents to the US). There was not yet in Virginia a law on slavery. The enactment of a law in the 1660s only "legitimized," after the fact, what the English people in Virginia had already been DOING for twenty years.

From July 22, 1640, the Virginia court heard a case involving seven men who attempted to run away, supposedly to New Amsterdam (Dutch plantation, later called New York). Six of the men were the servants of William Pierce. The seventh man was Emanuel, a "Negro," who belonged to a Mr. Reginalds. They had plotted to run away on Saturday, July 18^th.

The six European servants were named Andrew Noxe, Richard Hill, Richard Cookeson, John Williams, Christopher Miller and Peter Wilcocke. The "Negro" was named Emanuel. They took corn powder and shot (gunpowder or shells) and guns, and took a skiff (boat) down the Elizabeth River before they were caught.

Chris Miller, a Dutchman, was called the prince agent (ring leader). He was sentenced to be whipped and receive thirty stripes, and to be burnt on the cheek with the letter R for runaway. And he would work with a shackle on his leg for a year. After his term of indenturement with his master was completed, he would have to work for the colony for seven more years.

Peter Wilcocke was sentenced to receive thirty stripes and be burnt on the cheek with the letter R, and after his term of service to his master was completed he would have to serve the colony as a servant for three years.

Richard Cookeson, after his term of indenturement was completed, would have to serve the colony as a servant for two and a half years.

Richard Hill was not given any additional time, "upon his good behavior until the next offense).

Andrew Noxe was sentenced to be whipped thirty times, but was not given nay additional time.

John Williams, a Dutchman, was sentenced to serve the colony as a servant for seven years (after the completion of his time of indenturement to his current master).

In general, notice that the Dutchmen receive harsher sentences. Also, the English records indicate when someone is NOT English, since they assumed that ordinarily everyone in England or its colonies is English. Being English is, to them, normal. One would not need to comment on English ethnicity, only if one were NOT English.

Emanuel, the Negro, was sentenced to be whipped thirty times, and the letter R to be burned onto his cheek, and he would have to work "in shackle" for (at least) one year. It is possible that Emanuel was not given any more time because it was not possible to give him any more time. Maybe he was already serving for life.

It is clear, however, in this case, that the Dutch and "Negroes" received harsher penalties than the English (whipped, branded with letter R, work in shackles).

By 1639, in the British colony of Barbados (in Caribbean), Africans were being held as slaves for life. From the 1640s and 1650s, other documents survive in Virginia and Maryland that show (prove) that black people were being treated as slaves for life. Most of these documents are in the form of deeds (wills) and bills of sale. For example, in 1646 Francis Pott sold a Negro woman and boy to Stephen Charlton, "to the use of him forever." In Maryland, 1649, a woman deeded two Negro men and a woman "and all their issue both male and female." (in other words, slavery is hereditary). In 1647 the executors of an estate in York County, VA disposed of 8 Negroes to Captain John Chisman, "to have, hold, possess…forever." And in VA in 1652 William Whittington sold to John Pott "one Negro girl named Jowan, aged about ten years, and with her issue and produce during her life or during their life time , and their successors forever." Thus, in theory, slavery was hereditary and perpetual.

Virginians were buying and selling and willing enslaved persons in the 1640s and 1650s, EVEN BEFORE the colonial legislature even passed a law making life servitude legal! The practice PRECEDED the adoption of a law in Virginia. (Mass had adopted a law authorizing slavery in 1641, Connecticut in 1650). In Virginia, the adoption of a law authorizing slavery merely legalized, AFTER THE FACT, what people had been doing for twenty years! The law lagged behind reality, and was merely "catching up" with it.
 
 

THE ELIZABETH KEY CASE OF 1655-56

ELIZABETH KEY WAS BORN ABOUT 1630. SHE WAS THE ILLEGITIMATE DAUGHTER OF A WHITE MAN NAMED THOMAS KEY, AND AN UNNAMED BLACK WOMAN, PRESUMABLY A SLAVE.

AT AGE 6, IN 1636, HER FATHER BOUND HER TO HUMPHREY HIGGINSON AS A SERVANT FOR 9 YEARS. THE CONTRACT SPECIFIED 9 YEARS (1636-1645). AT THE END OF THAT TIME, ELIZABETH WOULD BE 15 YEARS OLD.

SOMETIME BETWEEN 1636 AND 1655, NO ONE KNOWS EXACTLY HOW OR WHEN, SHE WAS PASSED TO JOHN MOTTROM. HE DIED IN 1655, AND SHE REMAINED HIS SERVANT UNTIL HIS DEATH.

THE EXECUTORS OF THE MOTTROM ESTATE WANTED TO SELL ELIZABETH TO SOMEONE ELSE AND GET THE MONEY FROM THE SALE. THEY REGARDED ELIZABETH AS AN ASSET TO BE LIQUIDATED. AT THIS POINT, 25 YEAR OLD ELIZABETH PROTESTED, AND SOUGHT THE ASSISTANCE OF A WHITE MAN WHO WAS A LAWYER. HIS NAME WAS WILLIAM GREENSTED, AND HE SUED ON HER BEHALF.

GREENSTED ADVANCED THREE ARGUMENTS.

1 HE SAID THAT IN ENGLISH CUSTOM AND TRADITION AND THE COMMON LAW, FOR HUNDREDS OF YEARS, A CHILD INHERITS THE CONDITION OR STATUS OF ITS FATHER. SINCE ELIZABETH’S FATHER WAS FREE, SHE TOO SHOULD BE FREE.

2. ELIZABETH HAD BEEN BAPTIZED AS A CHRISTIAN. GREENSTED ARGUED THAT A CHRISTIAN COULD NOT HOLD A FELLOW CHRISTIAN AS A SLAVE FOR LIFE, NO MATTER WHAT THE PERSON’S COLOR. SINCE SHE WAS BAPTIZED, SHE SHOULD NOT BE SUBJECTED TO BEING A SLAVE. AND IN HER PARTICULAR CASE, SHE WAS HALF WHITE.

3.HE ARGUED THAT ELIZABETH HAD ORIGINALLY BEEN BOUND AS A SERVANT ONLY FOR 9 YEARS (1636-1645), AND THAT TIME PERIOD HAD LONG SINCE EXPIRED. SHE HAD BEEN IN SERVITUDE FOR 19 YEARS.

THE CASE ROSE THROUGH THE COURTS IN VIRGINIA. FIRST, A JURY IN NORTHUMBERLAND COUNTY RULED IN HER FAVOR. IT SAID THAT SHE SHOULD BE SET FREE.

IN AMERICA, WHEN WE DON’T GET OUR WAY, WE SUE. AND WHEN WE LOSE, WE APPEAL. THE EXECUTORS OF THE MOTTROM ESTATE APPEALED THE VERDICT TO A HIGHER COURT, THE GENERAL COURT OF THE COLONY OF VIRGINIA AS A WHOLE. THE GENERAL COURT RULED THAT ELIZABETH WAS A SLAVE.

AS A LAST RESORT, GREENSTED FILED A PETITION WITH THE COLONIAL LEGISLATURE, ASKING IT TO SET HER FREE. THE LEGISLATURE WAS CALLED THE GENERAL ASSEMBLY, WITH TWO SEATS FOR EACH COUNTY. THE GENERAL ASSEMBLY ORDERED A NEW TRIAL.

AT THIS POINT, NOT WISHING TO GO THROUGH THE WHOLE PROCESS ALL OVER AGAIN, (AND PAY COURT COSTS AGAIN) THE MOTTROM ESTATE DROPPED ITS APPEAL, AND AGREED TO ACCEPT THE ORIGINAL JURY VERDICT.

IN 1656 ELIZABETH OBTAINED HER FREEDOM. THEN GREENSTED MARRIED HER. IF HE HAD NOT BEEN ROMANTICALLY INTERESTED IN HER, HE MIGHT NOT HAVE FOUGHT FOR HER FREEDOM. SHE WAS FORTUNATE.

THE ELIZABETH KEY CASE SYMBOLIZES SEVERAL THINGS.

FIRST, IN THE 1650S, THE ENGLISH STILL HAD SOME DOUBTS ABOUT THE STATUS OF BIRACIAL CHILDREN, ESPECIALLY WHERE THE MOTHER WAS A SLAVE AND THE FATHER WAS A WHITE MAN.

SECOND, AS LATE AS THE 1650S AND 1660S, THE ENGLISH WERE NOT CERTAIN THAT A BLACK PERSON WHO HAD BEEN BAPTIZED AS A CHRISTIAN OUGHT TO BE HELD AS A SLAVE. THEY HAD SOME PANGS OF CONSCIENCE ABOUT THIS.

IF THE INSTITUTION OF SLAVERY WAS TO BE CONSOLIDATED IN ENGLISH AMERICA, THESE QUESTIONS HAD TO BE SETTLED BY LAW. NO LONGER COULD IT BE LEFT UP TO THE DISCRETION OF PRIVATE INDIVIDUALS TO DECIDE FOR THEMSELVES. THE PLANTERS WANTED A FIRM RULE ON THIS SUBJECT.

THE INTERESTS OF THE PLANTER CLASS REQUIRED THAT QUESTIONS SUCH AS THESE BE RESOLVED AND PUT TO REST ONCE AND FOR ALL. THAT IS WHAT LAW IS FOR. IN THE 1660S, THE PLANTERS TURNED TO LAW, BY WHICH WE MEAN LEGISLATION OR STATUTE, TO RESOLVE THE QUESTIONS.

The planters needed as many bodies as they could get. They were desperate for labor. It was not in their economic interest to allow the biracial (mulatto or mixed race) children of white fathers and slave women to escape from slavery. It was in their economic interest to define these children as not white, and not free. If they had possessed enough laborers, it might not have hurt their economic interests to allow the biracial children to escape from slavery. But this was a luxury that many slavemastesr evidently thought they could not afford.

Meanwhile, English and other European indentured servants were running away with Africans and Afro-Americans. In the winter of 1660-61 the Virginia assembly enacted Act XXII. Essentially it was designed to deter the European servants from running away with Africans. The law provided that the European servant would serve for the amount of time he was away, AND the length of time that the "Negro" was away. The text of the law says "That in case any English servant shall run away in company with any Negroes who are incapable of making satisfaction by addition of time, be it enacted that the English running away in company with them shall serve for the time of the said Negroes' absence, as they are to do for their own [time away] by a former act."

The fateful phrase "Negroes who are incapable of making satisfaction by addition of time" means, in plain English, persons who are already serving for life. If he or she is already serving for life, it is not possible to punish hem by adding any MORE time to their period of servitude. This is the first Virginia statute to formally, explicitly acknowledge the existence of a class of Negro people who are serving for life. The intent of the law was to discourage the "English" from running away with "Negroes" by requiring the English servants to serve not only for the time that they themselves were away, but the time that the Negro slaves were away TOO.

But this law did not work well enough. So the next year, 1661-62, the Assembly passed Act CII (102). It DOUBLED the penalty. If the English servant ran away and was absent for six months, he would have to serve TWICE or DOUBLE the length of time he was absent (= one year). If absent one year, penalty = two years, etc). But in addition, the English servant would ALSO have to serve TWICE the time the "Negro" slave was absent TOO. In effect, it was a quadrupling of the penalty (twice the time the English servant is absent plus twice the time the Negro slave is absent). And if the slave was permanently "lost" or died while he ran away, the "Christian" servants who had run away with him would be fined four thousand five hundred (4500) pounds of tobacco OR four years service for each "Negro" so lost or dead. The fine would be apportioned over the Christian servants who ran away with the lost or dead "Negro" slave.

The point was to make the European servants "think twice" about running away with the slaves, and divide the white workers from the black workers.

In 1662 the Virginia Assembly adopted Act XII (of that year). It was an attempt to make sure that no more Elizabeth Keys escaped from the coffin of servitude. The law said "Whereas some doubts have arisen whether children got by any Englishman upon a Negro woman should be slave or free, be it therefore enacted and declared by this grand assembly that all children born in this country [colony of Virginia] shall be held bond or free only according to the condition of the mother. And that if any Christian [white person] shall commit fornication with a Negro man or woman, he or she so offending shall pay double the fine imposed by the former act."

Thus, the biracial children of white fathers and black slave women would be slaves. By the same logic, the children of a free Afro-American man and a slave woman would be slaves too (and "belong" to the mother's master). Again, the English defined the biracial children of slave mothers as black, and as slaves, rather than as part white (light skinned black people rather than dark or tan white people).

There had also been petitions by slaves asserting that they should be set free because they had accepted Christianity and been baptized as Christians. Initially the Europeans said that the African was enslaved because he was a heathen or pagan with a defective religion. This explanation might be a persuasive excuse for an African sold into slavery from Africa. But if the Afro-American slave had been born in America, and became a Christian, and had been baptized, how could one say that he was a slave because he was a heathen? He WAS NOT a heathen. He had not been born in West or Central Africa. He was a Christian. How was his religion (as an individual) any longer defective? We must distinguish between the reason given for buying Africans as slaves, and the reason for continuing to hold someone as a slave after he or she has converted. And why does one CONTINUE to hold as a slave a person born in America, who has embraced Christianity? "Heathenism" is not really a convincing excuse for holding Afro-Americans born in America. Therefore the English moved to shut off this baptism loophole, this escape route from slavery, too.

In 1667 the Virginia Assembly passed Act III. It said, "Whereas some doubts have risen whether children that are slaves by birth, and by the charity and piety of their owners made partakers of the blessed sacrament of baptism, should by virtue of their baptism be made free; It is enacted and declared by this grand assembly…that the conferring of baptism doth not alter the condition of the person as to his bondage or freedom"

The churches wanted this law, because if masters were afraid that baptism and conversion would entitle their slaves to freedom then the masters would have every reason NOT to permit the religious education and conversion of their slaves. If baptism does not entitle one to freedom, then the master does not stand to lose anything by permitting it. However this law also reflects a transition FROM the assertion that Africans and Afro-Americans deserved to be slaves because they were heathens (not Christians) TO the assertion that it was not a defective religion that justified slavery but rather the African's defective COLOR, and his inborn inferiority that justified his continued enslavement EVEN AFTER he had converted to Christianity and been baptized.

At almost precisely the same time the colony of Maryland also adopted colonial laws on slavery. In 1664 Maryland adopted a law that said "all Negroes and other slaves already within the Province, and all Negroes and other slaves to be hereafter imported into the Province shall serve durante vita [for life]. And all children born of any Negro or other slave shall be slaves as their fathers were for the term of their lives.

And forasmuch as diverse freeborn English women…to the disgrace of our nation, do intermarry with Negro slaves…whatsoever freeborn woman shall intermarry with any slave from and after the last day of this present Assembly shall serve the master of such slave [husband] during the life of her husband. And that all issue [children] of such freeborn women so married [henceforth] shall be slaves as their fathers were.

And be it further enacted that all issue of English or other freeborn women ALREADY married to Negroes [before the adoption of this law] shall serve the masters of their parents till they be thirty years of age and no longer.

The Maryland law did not YET forbid interracial marriage with slave men. But from this point forward, if a white woman married a slave man she would have to serve her husband's master for as long as she was married to her husband and he was alive. And her children would be slaves. This was a horrible price to pay for marrying a black slave man--and therefore it deterred people from doing it.

But the white women who had already married black slave men would suffer a penalty too. Their children would pay for the "offense" of the parents. The children would be servants until age 30.

The position of the handful of free Afro-Americans was also restricted. In 1670 Virginia adopted Act V. It noted that it had been questioned whether Indians or Negroes who had been manumitted (set free) could purchase Christian servants. The law said that "No Negro or Indian, though baptized and enjoying their own freedom, shall be capable of any such purchase of Christians, but are yet not [not yet] debarred from buying any of their own nation." (comment: anti-Anthony Johnson law)

In plain English, the text assumes that Europeans (except for some Jews) are Christians. Thus, where the text says Christian, today we would say "white." However free Negroes and Indians are not yet prohibited from purchasing Indians or Negroes as servants or slaves. Note also, it does not say that Indians and Negroes are not debarred from purchasing servants of their own FAITH (religion). It says of their own nation, as in ethnic group or "race." Christians were assumed to be of a different "nation" or race. The distinction in this law is based on color/race, not just religion.

Act X of Virginia, 1680, said that it shall be unlawful for any Negro or other [Indian] slave to carry or arm himself with any club, staff, gun, sword or other weapon of defense or offense, nor to go or depart from his master's ground without a certificate from his master, mistress or overseer. And if any Negro or other slave shall presume to lift up his hand in opposition against any Christian, shall for every such offense…receive thirty lashes on his bare back well laid on. And if any Negro or other slave shall absent himself from his master's service and lie hid and lurking in obscure places…and shall resist any person or persons that shall by any lawful authority be employed to apprehend and take said Negro, that then in case of such resistance, it shall be lawful for such person or persons to kill the said Negro….

This law, in effect, made it as crime for the African or Afro-American slave to even attempt to defend herself from being hit or whipped. Self defense was criminalized. For a black person to defend herself, or to hit back when attacked, was a "crime."

Act XVI of Virginia 1691 repeats much the same provision, saying that if slaves runaway and resist capture it shall be lawful to kill and destroy such Negroes, mulattoes and other slave or slaves by gun or any other ways whatsoever. The law adds, however, that in the case where the runaway slave has been destroyed, the owners are to be compensated four thousand pounds of tobacco by the public.

This act possesses a logic similar to the Act for the Casual Killing of Slaves, from Virginia 1669. It stated "if any slave resist his master…and by the extremity of the correction should chance to die, his death shall not be accounted felony, but the master (or that other person appointed by the master to punish him) shall be acquitted from molestation, since it cannot be presumed that prepensed malice (which alone makes murder [a] felony) should induce any man to destroy his own estate. (Morgan, p. 312).

Question: In the law, then, what protection is there for the life of an enslaved African or Afro-American? **

Commentary: It should be clear that these laws were passed by the elite, rich, white landowners. These laws were not passed by the white indentured servants or the small farmers. These laws are instruments of domination and oppression and class rule. They were passed "by the white man, for the white man. It was HIS law, designed to serve HIS interests: to be more precise, the laws were passed by the rich planter elite (aristocracy), FOR the rich planter elite. The law was simply a TOOL of their class rule. The planters in the South were the ruling class in the South.

FURTHER LAWS AGAINST INTER-RACIAL LIAISONS

Despite these laws, interracial liaisons continued, and so in 1691 Virginia again attempted to penalize them. An omnibus law (Act XVI) said that "for the prevention of that abominable mixture and spurious issue…by Negroes, mulattoes and Indians intermarrying with English, or other white women, and by their unlawful accompanying with one another, be it enacted that for the time to come [from this point forward], whatsoever English or other white man or woman, being FREE, shall intermarry with a Negro, mulatto or Indian man or woman, bond or free, shall within three months after such marriage be banished and removed from this dominion forever…

And be it further enacted that if any English woman being free shall have a bastard child by any Negro or mulatto, she pay the sum of fifteen pounds sterling, within one month after such bastard child shall be born, to the [Anglican] church wardens of the parish where she shall be delivered of such child, and in default of such payment she shall be taken into the possession of the said church wardens and disposed of for five years [must be contracted out as a servant] and the said fine of fifteen pounds, or whatever the woman shall be disposed of for, shall be paid, one third part to their majesties and toward the support of the government…the other third part to the parish…and the other third part to the informer.

And such bastard child be bound out as a servant by the said church wardens until he or she shall attain the age of thirty years,

And in case the English woman that shall have such bastard child be a servant, she shall be sold by the church wardens (after her time is expired that she ought by law to serve her master) for five years, and the money be divided as before appointed, and the child to serve as aforesaid [to age 30].

However these laws did not stop interracial sex, even between white women and black men. The counties in colonial Virginia kept records on instances of women bearing children out-of-wedlock. A few examples will suffice. In Westmoreland County, from 1690 to 1698, 14 white women were punished for having 19 illegitimate children (some were repeat offenders: they became pregnant out-of-wedlock more than once). Four of the 19 were mulatto. In Norfolk County, from 1690 to 1698, 13 white women were punished for having 13 illegitimate children. Three of the children were mulatto. In Lancaster County, from 1702 to 1712, 26 white women were punished for having 32 children out-of-wedlock. Nine of the 32 were mulatto. (Morgan, p. 336.)

Shortly after the ineffective law of 1691, in 1705 (Morgan p. 335) Virginia made interracial marriage illegal, and imposed a fine of 10 pounds sterling and six months in jail. Furthermore, any minister who performed an interracial marriage would be fined ten thousand pounds of tobacco.

Of course, after this, no minister in Virginia in his right mind was going to perform an interracial marriage.

WOMEN AS PROPERTY

We need to recall that historically, perhaps since pre-historic times, men have tended to view women as property. Men feel that the women of their ethnic group "belong" to the men of that ethnic group. So Irish women "belong" to Irish men, English women "belong" to English men, Yoruba women "belong" to Yoruba men. Traditionally fathers exercise authority over their children, and especially their daughters. And when suitors (husbands to be) give gifts to the father of the bride, it might seem as if the man is "buying" from the father the rights that he possessed over the daughter, so the man has "bought" the woman from her father. European men felt that European women "belonged" to them, and had no right to give themselves away to non-European men. The African and Afro-American women, however, were seen as "property" of the master, not the "property" that "belonged" to African men. "Master" supposedly has the "right" to utilize his property in order to gratify his lust and his sexual desires because the slave woman was "his" and "belonged" to him. The ideology of slavery held that anything that the slave "owned" "belonged" to his master. So the slave man's woman "belongs" to master, too. Or the slave man's daughters... Obviously all of this is just  a lot of excuses and rationalization, but it was part of the state of mind of slaveholders.

There is also the issue of consent. Historically, men did not feel that women had the right to consent. And European men seem to have felt that European women had no right to consent to sexual relations with non-European men. Therefore, even if she "consents" to sex with an African or Afro-American man, it is NOT really consent because she has no right to consent to interracial sex in the first place. In contrast, the African or Afro-American woman is a social "lesser" or subordinate, and therefore she has no right to refuse the advances of the superior European man.

Under slavery, there was no such crime as the rape of a slave woman. Rape is defined as sex with a person against that person's will. The slave woman has no right to refuse. She is legally incapable of possessing a will contrary to that of her master. Sex with her cannot be against her will because legally she has no right to a will of her own. A slave woman could not charge anyone with rape. There was no law against intercourse with a slave woman. The most that could happen would be that if a man other than the master had sex with a slave woman, the master could charge the man with "trespass" and allege that his slave property had been damaged. In other words, the master could charge that someone had trespassed upon and damged his PROPERTY. The woman had no right to allege a violation upon her person as a human being. One trespasses on property. There are a very few cases of white men being charged with trespass against a slave woman. I know of no convictions on such charges.

EMERGENCE OF EXPLICIT SENSE OF WHITENESS

Comment: The law of 1691 is very interesting because it is just about the first time that the colonial law in Virginia uses the term WHITE. The previous laws said "English," or "Christian' or "freeborn." The stated terms identified persons by ethnicity (English, Scots, Irish, Dutch) and religion (the English assumed that all Europeans were Christians, except for the European Jews). Thus, in the mind of the English, Christian = European. But by the 1690s the various European (Christian) ethnicities are compressed or merged together into a shorthand: white. By white they meant European Christians (and perhaps European Jews). This reflects a shift in emphasis FROM ethnicity and religion TO color or race. Increasingly, Europeans and Euro-Americans identified as "white" (race), and placed less focus on ethnicity. Unfortunately, in time, Euro-Americans also came to think that American = white, and Afro-Americans were a class of guest workers. They were not real Americans, they were simply guests who were allowed to be here, but the country did not really BELONG to them the same way that it belonged to Euro-Americans. It was as if Euro-Americans were the OWNERS, and Afro-Americans and later "immigrants" (Irish, Italians, Germans, Swedes, Poles, Puerto Ricans, etc) were guests.

SLAVE CODE OF 1705

In 1705 the various laws on slavery that had been passed one by one, in a piecemeal fashion, were brought together into a comprehensive package, called a slave code (the Virginia Slave Code of 1705). Under the comprehensive Virginia slave code of 1705, slaves lost the right to possess even personal property. They could not sue or testify against any white person. And as of 1705, it was written into the law that all black people are presumed to be slaves unless they can prove that they had been free in England or another colony. Proof of freedom would mean "freedom papers," which certified that one's master had given one freedom (manumission) or a birth certificate indicating that one was freeborn. (If no papers, and no proof, on you, potentially SOL: don't leave home without it). Slaves were defined as chattel, or portable real estate or personal property.

VIRGINIA AS BLUE PRINT

In time ALL of the Southern colonies (after 1776, states) would have a slave code. In general, they were modeled after the Virginia Slave Code. Thus, in general, Virginia served as the model or prototype, the blueprint, for the South as a whole. South Carolina drew inspiration from the British colony of Barbados, as well.

NY and NJ adopted laws establishing slavery in 1664; SC 1682; RI and PA 1700; NC 1715; GA 1750 (Bennett, Before the Mayflower, p. 444).

And by 1707-1708, there is recorded a judgment of the Lancaster County Court in Virginia giving Robert Carter permission to cut off the toes of two allegedly incorrigible runaway slaves, Bambarra Harry and Dinah (Morgan, American Slavery, American Freedom, p. 313).

One by one the loopholes (free father, baptism) were closed, and all of the escape hatches from slavery closed. Each law was like another nail being driven into a coffin.

South Carolina adopted a slave code in 1712. It specified that for the first offense of running away, a slave was to be whipped. For the second offense, he was to be branded with the letter R. For the third offense he was to lose an ear. For the fourth offense, he was to be castrated. It was not unknown for female offenders to be punished by having their breasts branded or slashed or mutilated.

EXAMPLES OF REAL PEOPLE

MARY AND SARAH MADDEN

There are also examples of how these laws applied to the lives of real people. An indigent Irish immigrant named Mary Madden gave birth to an obviously biracial mulatto child in 1758. The identity of the black father is not known. Mary could not pay the fine. For this interracial fornication she had to serve as an indentured servant for five years, and her child, Sarah, had to serve as a servant until age 30. Her family, the Madden family, became a biracial or colored family in Virginia. They were free, but caught in between the black world of slaves and the free world of whites, and di not really fit in either "world."

In those days, society DID punish children for the "sins" and mistakes and misdeeds of their parents. The sins of the father were passed on to the children.

HESTER TATE

Hester was a white servant woman in Virginia. Her employer, or "master," was James Westcomb. She fell in love with a black slave man, named James Tate. His master was Patrick Spence. The respective masters seem to have permitted the marriage, as Hester, as an indentured servant, had no RIGHT to marry. They were married in 1667 (almost forty years prior to the law of 1705 banning interracial mariage). In this particular case Westcomb and Spence worked out an arrangement, and three of the children became apprentices to Spence (until age 30), and one child was apprenticed as a servant to Westcomb (Morgan, p. 334).

SUSIE PHIPPS

However the idea that African "blood" (ancestry) makes one black for generations lasted for centuries. The case of Susie Phipps of Louisiana illustrates this. Susie was born about 1934. Until 1970, the state courts in Louisiana held to the old colonial view that "any traceable amount of Colored ancestry" made one black, or "nonwhite." In 1970 Louisiana adopted a new law, intended as a liberal reform. It specified that anyone born from that time (1970) forward would be considered nonwhite if they had more than one-thirty second "Negro blood." This would mean that one had a great great great grandparent who was black. However the law was not retroactive, and did not apply to anyone born before 1970 (Mrs. Phipps was born about 1934). Then, in 1983 Louisiana changed the law again, to say that from that date forward the county officials should record the racial designation, on the birth certificate, as given by the parents. (Remember that states issue birth certificates, through the counties). Ms. Phipps asserted in a lawsuit in 1982 that she had always considered herself white, even though she had a great great great great grandmother who was a black slave back in the 1700s. The state required that a person trying to challenge their racial classification had to show a preponderance of evidence. The state argued that as a child Susie attended a black school, and sat in the section of the church reserved for blacks. It could be countered that this merely proves what her parents considered her to be as a child (Colored), not who she felt that she was. (Who other people say that we are is ASCRIBED identity: who WE say that we are is AVOWED identity).

Susie married a wealthy white crawfish merchant. In 1977 she needed a passport to travel overseas and needed her birth certificate. She says it was at that point, for the first time, that she learned that her birth certificate said that she was Colored. * She later sued to be allowed to have the certificate changed to say white.

Despite her lawsuit, the Louisiana courts ruled against her, and the US Supreme Court refused to intervene to make the state courts change their ruling. The "one drop rule" has classified her as nonwhite, for life, even after five generations. In fact, it was not until 1967 that the US Supreme Court struck down the laws in sixteen states that banned interracial marriage.

The Susie Phipps case also illustrates how the American idea of race is a little fuzzy. It really combines TWO different ideas: phenotype and genotype.

Phenotype refers to visible physical characteristics, such as skin color, texture of the hair, eye color, shape of the nose and lips, body shape, etc.

Genotype refers to genetic make-up, "blood" or ancestry.

The American idea of race is based mostly on color, and assumes that phenotype and genotype are the same. In other words, that a person of a given ancestry is a certain color. But this is not always true. A person can have African ancestry ( a black great grandparent for instance), but through racial mixing they are light enough "to pass as white." Thus, physically, or color-wise, or phenotypically, they LOOK white. But their genotype is partly black (African). Thus, there are people who look white but have black ancestry, and there are people who look black but have European ancestry.

SLAVES BECOME A "BETTER BUY"

In the 1620s, 30s, 40s, it cost about 6 pounds sterling to pay for the cost of travel across the ocean for an indentured servant, plus another four pounds sterling for clothing and food. So the cost was in the neighborhood of 10-12 pounds sterling. The servant served for perhaps seven years. On the other hand, in the early decades, there was a 50-50 chance that anyone who came to Virginia would be dead within five years. The mortality was staggering. Early Virginia was a death trap (because the colony began down in the swamps, where the water became brackish and contaminated with amoebas in the summer: venturing into the interior placed one at greater risk of being ambushed by the Indians). If one bought three indentured servants in succession, at a cost of ten pounds sterling per servant, with each serving seven years, one would have spent thirty pounds sterling for twenty-one years of work. (Or if they are serving four years each, thirty pounds sterling for only twelve years of work!)

A slave might cost twenty or more pounds sterling (twice as much as an indentured servant). But a slave would last FOR LIFE (which, by the 1680s and 1690s, might be 20 years from the time of arrival in Virginia). And if she were female, one would get the children who were born, and since the system was hereditary, their children, in perpetuity. By the 1690s the Virginians weighed thirty pounds sterling for three indentured servants for twenty one years against twenty pounds sterling for a slave for life. Slaves cost more, but you kept them longer.

An investment in slaves for life was a "better" business decision. It made more "business sense." Apart from racial prejudice, it was a matter of profit, and economics. The long term benefits were attractive. And by the 1690s the English lower classes were well aware of how horrible Virginia was. They could go to Phila or New York or Boston and work as an indentured servant and learn to be a carpenter or cooper. Why go to Virginia, with these kinds of alternatives available? And after 1688 Britain restricted out-migration. Indentured servitude was less and less of an option for Virginia, and less attractive even if available.

The planter brought in an indentured servant, taught him how to grow tobacco, and then as soon as he was properly trained, after 4-7 years, he went free. And then the plantation owner had to start all over again with new indentured servants. And then they went free. They constantly had to be replaced (the problem of turnover, which is chaotic). But a slave stayed for life, and you could invest in one woman and if she had five kids you would have six slaves for the price of one. The use of African and Afro-American slaves offered a PERMANENT labor force that stayed forever. This gave stability.

It bears repeating: the English tried using their own people first in Virginia, Maryland and the West Indies. Indentured servitude did not work well because of the problem of constant turnover, the need to replace the workers. And the workers in Virginia revolted (Bacon's Rebellion, 1676) and frequently ran away.

It was hard to find a runaway white indentured servant among hundreds and thousands of white people. But a black person who ran away in a mostly white country stood out like a sore thumb.

Without economic need (greed and profit) there would have been no slavery in Amrica. If the Europeans had simply disliked Africans they would have left them in Africa. But racial prejudice against the African also gave Euro-Americans a convenient excuse to do what was profitable--to use Africans as slaves for life. And they could do it WITHOUT FEELING GUILTY about it because they told themselves that Africans were animals, subhuman. Pyschologically, racial prejudice made it possible for Europeans to do things to Africans that they could not bring themselves to do to fellow Europeans. The Europeans came to regard white as human. To be human was to be white. If one was not white, one was not (or less than) human. It would be cruel to enslave a human being for life (and they felt bad or guilty about enslaving a fellow white human, who looked like them, especially a Christian, for life) . But Europeans and Euro-Americans, in the furtherance of economic convenience, invented the fiction (and told themselves the lie) that the African was not human. Therefore it was "okay" to enslave him.

And furthermore, in Africa they are "cannibals and savages," and we are doing him a favor by letting him be a slave for us, because in Africa he would have been eaten. And they practice human sacrifice in Africa, so we are helping him by letting him be a slave for us because in Africa he would have been sacrificed. And in Africa they are heathens (except in Ethiopia), and we are helping him by letting him be our slave because we are bringing him to Christ and saving his soul. These rationalizations allowed Euro-Americans to lie to themselves, and in their minds it reduced or calmed their anxiety; and absolved them from guilt. In other words it diminished or assuaged or allayed or moderated or took away their feelings of GUILT. Prejudice absorbs the guilt, and grants a license to mistreat others.

Economic    + prejudice    + good resistance    = enslavement of Africans
Need                                    to disease                (superior slaves?)

Not just one cause but a combination of causes
 

EDMUND MORGAN, AMERICAN SLAVERY, AMERICAN FREEDOM

We might add that by 1700, Virginia was moving toward a society in which white and black were not just colors, but statuses. To be white "meant" a certain place or position in the social hierarchy. White meant someone who was free or eligible to become free. It meant someone who was exempt from slavery (life servitude). Black "meant" slave, or someone who was presumed to be a slave unless he or she could prove otherwise (freedom papers). To be free and black was an anomaly. It didn’t "fit".

Further, freedom took its meaning from slavery. To be free was to not be a slave. It was freedom FROM slavery or life servitude. And all whites, no matter what their differences in income, were "equal" in that they were NOT SLAVES.

Furthermore, Edmund Morgan suggests that the white planter elite no longer needed to brutalize and super-exploit the white indentured servants because they had someone else to exploit INSTEAD--the black slaves. The white-on-white brutality and exploitation of indentured servitude was the stepping stone that took America toward the white-on-black brutality and exploitation of chattel slavery. BECAUSE the blacks were slaves, the indentured servants and the yeomen could be free from exploitation. Slavery took the white lower classes in Virginia OFF THE HOOK, by placing someone else ON THE HOOK IN THEIR PLACE. The white lower class was free from the terrible exploitation of the elite BECAUSE the blacks were slaves INSTEAD. Somebody "has to be" on the bottom. Putting blacks on the bottom allowed the white lower classes to come off the bottom and ascend the rungs of the ladder. In this way, slavery for blacks is what made possible freedom (from servitude) for whites (in the South). According to Morgan, white freedom rested on the foundation of black slavery.

Morgan argues that Virginia became the model for the rest of the South. The slave codes of the other Southern colonies resemble the prototype of Virginia. Virginia is like the blueprint. Indeed, at the end of his book, Morgan asks if America is not really just Virginia "writ large?" As we will see, North Carolina follows in the steps of Virginia, except that it became even more extreme.

THE SOUTHERN CONTRADICTION

But there is a great contradiction in all of this. If the English (and British Americans) had been able to make the South work, economically, using white indentured labor, they would have done so. They tried that first. IT DIDN'T WORK. Plantations are almost impossible without unfree labor. The Southern plantation system did not work well without slaves. If the planters had been limited to white labor, they would have been forced to abandon the plantations and have widespread ownership of land with lots of white small yeomen farmers. But this would not have allowed the planter elite to reap mega profits. The contradiction is that the white elite could not reap profits from plantations without slaves. But white people had originally envisioned America as a pure white country. Somewhere in their hearts the Founders wanted a pure white country. But a pure white country was not super profitable. In order to reap mega profits, they needed black slaves. But then many white Americans, historically, resented the presence of blacks. (White and middling (not rich), versus rich and not pure).

In other words, "we couldn't make it without you, but we hate you for being here. We need (or needed) you, but we hate needing you." From the KKK and the Aryan Nations and the Neo-Nazis one hears "We hate how you spoiled our dream of a pure white country." Thus, until 1964, historically, many white Americans felt ambivalent about the African (black) presence. From the Afro-American side of the fence, what one sometimes feels is the lament "Some people blame us for being here, but we never asked to come here in the first place, and the only reason we are here now is because somebody's ancestors brought our ancestors here in chains, against their will--and now we are blamed for being here." And of course the reply is, "Well, if you (or someone's ancestors) didn’t want us here they shouldn't have forced our ancestors to have come here in the first place." But we can't reverse 400 years of history.

We are all here now, and we will all have to learn how to get along, and make the best of it.

Virginia becomes the "Southern way" until 1865 (end of the Civil War).