African American Heritage & Ethnography African Nation Founders: Historic Contexts—Laws that Bound

Laws that Bound

All of the colonies developed laws to establish and maintain dominance over African members of society. This held true for Africans who came to the New World as free agents, servants or as slaves. The bodies of law that evolved, known variously as “Slave Codes,” “Black Codes,” and “Code Noir,” aimed to limit African social, economic and political autonomy as well as to control the growth of a free African population. Yet, whenever possible, Africans used the laws to their own advantage, so that by the end of the colonial period there existed a small but politically active core of free Africans and African progeny among the nation’s founders.

Initially, North American colonies were not slave societies in the strictest sense. African servants and slaves arriving in the 16th and 17th centuries had opportunities to become free, some legal rights and considerable control over their day to day lives. The economic, environmental and social conditions in a colony and the nationality and class makeup of the European settlers all influenced the kinds of laws passed and the degree to which they were enforced. Legislation along with evolving social customs focused on protection of property rights, decreasing the costs of acquiring and maintaining a labor supply, increasing economic profits and maintaining political control of a colony. For example, in order to protect property and increase the size of the slave population, almost all colonies developed laws and/or social custom that defined the slaveholder as owner of children born to enslaved women. Fear of social and political alliances between European indentured servants and Africans led to the passage of laws designed to decrease sexual liaisons or legally binding sexual relationships between Africans and Europeans, either free or bound. Anti-miscegenation laws like these continued in Virginia well into the 20th century (Austin 1987).

Over time, the rights of Africans were sharply reduced in some colonies while in others they were extended. In the South, where labor intensive crops such as rice, tobacco and indigo supported the economy, through a series of ever more restrictive slave codes and prevention of even private manumission, slaveholders slowly consolidated their control over the unpaid African labor force. In the middle and northern colonies, for various other economic reasons and sometimes on religious grounds, enslavement had less viability. There slave codes slowly became less restrictive and gradually enslaved Africans were emancipated. The same ideas about the natural rights of man that gave rise to the American Revolution nourished a fledgling anti-slavery movement that resulted in gradual emancipation laws, laws that decreased restrictions on private manumissions and abolished slavery.

Law in Spanish America

Spanish law and custom based on 13th century Castilian slave codes, acknowledged enslaved Africans as human beings with a moral and juridical personality. From the 16th through the 18th century, African slaves were protected by legal, religious and social traditions based on these codes that defined the slaves’ rights and obligations, including avenues for achieving free status. Africans recognized the Spaniards need for their services and made full use of Spanish law to live relatively self-determined lives and gain their freedom, particularly thorough military service.

Spanish Africans enslaved by the had rights to fair treatment, to receive a share of their earnings, and to buy freedom. Their children did not necessarily become slaves. They had a right to personal security, and legal mechanisms existed through which they might escape from a cruel master. A “slave” could legally own and transfer property. They could initiate lawsuits, a provision that evolved into a right of self-purchase. Their acknowledgement of a slave’s humanity, legal rights and a liberal manumission-policy made it possible for the development of a substantially sized population of free Africans in Florida and the southwest by the 18th century. On the other hand, race-based prejudicial social attitudes promoted a society of groupings based on color known as the Castas system in colonial Spanish society. Castas identified people by the variations of their racial background or more precisely the amount of African blood an individual inherited from intermarriage.

Castas System

The 16th century Spanish colonial population was made up of three basic groups; the indigenous Indians, European-born Spaniards or their American born descendants called criollos, and the Africans. By the late 17th century, after nearly two hundred years of Spanish law that permitted and in a sense encouraged manumission, there was a considerably sized free African population and many free African communities throughout the Spanish colonies. There was also considerable intermarriage between the three groups.

The Spanish worldview, which included the notion of purity associated with race and religion, may have been the result of their recent emergence from a 900-year Moorish occupation of the Iberian Peninsula. The reassertion of Christianity in Spain and Portugal was still in progress as the Spanish embarked on the conquest of the New World and as late as 1609–1614 the Spanish expelled 250,000 unconverted Moslems earlier references Muslims from Spain. Throughout this period, a person's identity as a Cristiano viejo (old Christian) guaranteed social position. Any hint of Jewish or Moorish blood limited a person's access to high ranking positions (Cope 1994:6–7).

In New Spain, Castas developed as an elaborate hierarchical classification based on ethnicity, race and class and was used by the Spaniards to maintain their social and political control. “Pureblooded” Spaniards held the top position in their constructed social and racial hierarchy, and Africans were considered most inferior. Members of the mixed classes fit into the hierarchy depending on the quantity of “tainted” blood found in their genealogy. Casta paintings <> depicted the different racial categories to which people were assigned. The paintings used picture content and explicit written descriptions to identify a particular Casta classification and the customary dress and occupation with which it was associated (Diggs 1953:403–407; Wolf 1982:131–157; Landers 1995:17–41). Learn more about Castas and Spanish America.

Spanish legislation encouraged African to marry African, placed obstacles to marriage between African and Indian, restricted Zambos or Lobos from dressing like Spaniards, or going to school (Diggs 1953:403–407; Landers 1995:17–41). Castas were also used to create divisions between Africans and Indians to counter their formation of alliances against the Spanish colonials. Yet by the 17th century, the development of “palenques,” villages of self-liberated “Zambos,” in Esmeraldas near Quito, Ecuador and other locations throughout Spanish America, attested to the presence and power of such alliances. By 1599 black people were clearly in charge of what was called “La República de Zambos” or “Zambo Republic”. Zambo refers to people of color who are descendants of Indians and Africans. In that year a group of Zambo chieftains, said to represent 100,000 or more Zambo people of Esmeraldas, trekked to Quito to declare loyalty to Spain. An oil painting of these chiefs from the emerald land of the Zambo Republic is portrayed by the “Indian artist” Adrián Sánchez Galgue [sic]; it is reportedly the earliest signed and dated painting from South America (1995 Minority rights).

Los Mulatos de Esmeraldes.

The three men depicted in the painting are identified in the painting itself as Don Francisco (de) Arobe and (according to one source) his two sons. They wear abundant gold jewelry, much of which is typical of the Indians of the region. Their clothing is obviously European, and they carry spears. Each man is given the honorific title Don, a sign of respect in the Latin-Hispanic world (Forbes 1993:164).

Law in the Southern Colonies

Seventeenth century Virginia laws defining occupational boundaries between indentured servitude and enslavement were flexible. Africans were as likely to be indentured (contracted as a servant to work for a set amount of time) as they were to be enslaved. The work of indentured servants, English or African, was much the same as the work of those enslaved. Social relationships between indentured servants and slaves were also fluid during this period. Gradually, the English passed laws transforming the work and social relationships between African and English subjects from indentured servitude to race-based slavery. However, 17th century Africans, like other colonial people, could and did seek justice in courts.

Over the century, Virginians passed laws that steadily eroded the freedoms of Africans or as they called them “Negroes.” For example, this 1639 statute created a legal distinction between white and black men:

“ALL persons except Negroes [are] to be provided with arms and ammunition or be fined at pleasure of the Governor and Council. (1639/40 Laws of Virginia: Act X)”

The first (legal) mention of slavery in Virginia occurs in 1640 when the court sentenced one “Negro” to lifetime servitude. The same court case demonstrates how the English use law enforcement to drive a wedge between African and English social relationships. Three servants working for a Virginia farmer ran away to Maryland. Two were white; one was black. They were captured in Maryland and returned to Jamestown, where the court sentenced all three to thirty lashes and additional servitude, John Punch, the black man was ordered to “serve his said master or his assigns for the time of his natural Life here or elsewhere.”

Court interpretation of the law was variable. Less than one month after John Punch was sentenced to a lifetime of servitude, Emanuel another African, who also ran away with white men, received a less severe penalty than the whites even though he stole the “skiff” in which they escaped.

In 1641, Massachusetts had the dubious distinction of being the first colony to recognize slavery as a legal institution. Over time British law and laws of other European colonists, became more or less stringent in direct relationship to two factors:

Other laws were passed to drive a wedge between white indentured servants and Africans, such as the 1660 law that punished indentured servants running away with a Negro, if caught the indentured servant would have to serve out the Negro’s time of servitude:

“BEE it 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, Bee it enacted that the English so running away in company with them shall serve for the time of the said negroes absence as they are to do for their owne by a former act (1661/2 Laws of Virginia ACT CII.).”

Laws infringing on “Negro” freedom in relation to increasing growth of “Negro” population in colonial Virginia 1625–1775

Law Date “Negro” Population
1639 All except “Negroes” armed 1625 23
1662: Child born to slave mother is a slave 1648 300
1670 The Negroes or Indians to buy christian servants 1671 2,000
1680 An Act for preventing Negroes Insurrections 1680 3,000
Slave Codes of 1705 1700 16,390
  1720 26,559
  1730 30,000
  1740 60,000
  1740 60,000
  1775 210,000

As the population of Africans and their descendants increased in numbers laws increasingly constrained their independence.

(Hening: 1823)

Every slave-holding colony developed an extensive body of law beginning in the 1660s inclusive of slave codes and related court decisions. It is important to note that free African experienced constraints of their freedom by law and social custom. Even those states that emancipated Africans and abolished slavery had laws restricting many of the rights of free African citizens.

In 1662, Virginia court ruled that a child born to an enslaved mother was also enslaved. The following year a Maryland law made lifelong servitude mandatory for Negroes to prevent them from taking advantage of legal precedents established in England which granted freedom under certain conditions, such as conversion to Christianity. Other colonies would follow Maryland’s example.

The transformation of Negro servant to Negro slave that had begun in the early 17th century was completed with the Virginia General Assembly passage of the Slave Codes of 1705 that removed any uncertainty and would seal the fate of Africans and their progeny for generations to come:

“All servants imported and brought into the Country…who were not Christians in their native Country…shall be accounted and be slaves. All Negro, mulatto and Indian slaves within this dominion…shall be held to be real estate. If any slave resist his master…correcting such slave, and shall happen to be killed in such correction…the master shall be free of all punishment…as if such accident never happened (1705 Laws of Virginia: Chapter XLIX).”

Other colonies passed similar slave codes. All slave codes made slavery a permanent condition, inherited through the mother, and defined slaves as property. Since the status of the offspring followed that of the mother, the child of a free father and a slave mother was a slave. Slaves, being property, could not own property or be a party to a contract. Given that marriage is a form of a contract, no slave marriage had any legal standing. In all of the slave codes the color line was firmly drawn, and any amount of Negro blood established the race of a person, whether enslaved or “free”, as Negro.

As the years passed, many of the legal rights first generation Africans may have had were lost. As slaves, in court their testimony was inadmissible in any litigation involving whites; even if attacked, they could not strike a white person.

The institution of chattel slavery in America was based on the underlying premise that slaves were property, not persons, and that the law must protect not only the property but also the property owner from the danger of violence. Following the Stono Rebellion in 1769, slave codes in South Carolina and other southern colonies became even more restrictive. There were numerous restrictions to enforce social control: slaves could not be away from their owner’s premises without permission; they could not assemble unless a white person was present; they could not own firearms; they could not be taught to read or write, or transmit or possess “inflammatory” literature.

There were also punishments and social customs used to enforce the complete, at least the hoped for complete, submission of Africans to involuntary servitude. Punishments included whipping, branding, and imprisonment but rarely death since death would mean loss of property to the slaveholder. Death was only a punishment for Negro acts of extreme violence toward white people or rebellion.

For the 17th century slave in Virginia, disputes with a master could be brought before a court for judgment. With the slave codes of 1705, this no longer was the case. A slave owner who sought to break the most rebellious of slaves could now do so, knowing any punishment he inflicted, including death, would not result in even the slightest reprimand (1705 Laws of Virginia).

All codes also had sections regulating free blacks, who although free, were still subject to controls on their movements and employment.

In 1750, Georgia was the last British North American colony to legalize slavery.

Laws in Middle Colonies

African servitude in New Netherlands was somewhat different than in British colonies.
In 1644, the Dutch West Indies Company granted “conditional freedom” to the enslaved on condition that they make an annual fixed payment of farm produce. The children of the “conditionally freed” people, born and unborn, remained the property of the Company. Most of the families received grants to lands they had been farming before becoming “free.”

Though not comprehensive, Dutch records do note that there were Africans who had never been enslaved who were living on the “free Negro” lots which today are located on land between Astor Place and Prince Street in New York.

In 1665, the Dutch surrendered New Netherlands to the British. For most European settlers, little changed in what became New York. For Africans, both enslaved and freed, British occupation meant severe change. Under the British, Africans lost half or full freedom they experienced under Dutch rule. Gone were the legal and social rights they could claim as Dutch subjects when no master could whip an enslaved African without the permission of the Dutch Common Council. This and other rules changed under the British.

Middle Colonies.

The Dutch and Swedish also settled in the Delaware Valley in areas that became New Jersey, Pennsylvania and Delaware under British rule. African enslavement was already present in Pennsylvania when William Penn received his charter to the province in 1681. The Society of Friends, or Quakers, who began to arrive in the early 1680s, including Penn himself, owned enslaved Africans. Like other colonies, Pennsylvania enacted “Black Codes.” For example, “slaves” were not allowed to meet in groups of more than four; they were not permitted to travel more than ten miles from their “master’s” residence without his permission; they could not marry Europeans; they were not to be tried by juries; and could not buy liquor.

Slavery never was prominent in Pennsylvania. In 1700, when the colony’s population was approximately 30,000, there were only about 1,000 enslaved African present. Fifty years later when slavery was at its peak in the colony, enslaved Africans numbered only 6,000, only 5 per cent of a total of 120,000 residents. In comparison, during the same time period, the number enslaved in New Jersey was greater than in Pennsylvania, and New York had twice as many Africans enslaved as Pennsylvania. These colonies differed greatly from Virginia and South Carolina. Virginia’s enslaved population constituted half the population and in South Carolina they outnumbered Europeans. New York was the largest slave holding state in the north. The New York slave codes were so numerous they are now seen as a major cause of the 1712 slave revolt.

Laws in New England

At the outbreak of the Revolution, Connecticut’s enslaved population was the largest in New England and heavily concentrated in New London, New Haven, and Fairfield. According to McManus, the greater the number of African in a state, the more reluctant lawmakers were to move against slavery (1973:169–70).

Connecticut ended the importation of Africans in 1774. Yet after the Revolution the voices of Connecticut slaves were still petitioning for abolition of slavery. Emancipation bills were rejected by the Connecticut legislature in 1777, 1779 and 1780. In 1784, a gradual emancipation bill finally passed but even that held “Negro” and mulatto children in bondage until age 25. A subsequent act reduced the age to 21 which was the age that apprenticeships usually ended. Connecticut still had 54 enslaved people in the 1840 census. Eight years later slavery was abolished.

Vermont abolished slavery in the first state Constitution of 1777. In Massachusetts, enslaved African and their progeny carried their fight for freedom into the courts invoking a revolutionary ideology to argue that slavery violated the rights of humanity. The courts did what the lawmakers would not. Any number of slave owners turned freedom suits into manumission by legal default.

After the free people of Massachusetts ratified a constitution with a bill of rights that declared “all men are born free and equal, and have … the right of enjoying and defending their lives and liberty, an enslaved man named Quork Walker took this owner to court to claim that right. The Chief Justice’s charge to the jury left no doubt about the future of slavery in Massachusetts. “The idea of slavery,” he ruled, “is inconsistent with our own conduct and constitution.” His suit led the way for judicial emancipation in the state. Through a combination of manumission and judicial emancipation, slavery slowly died in Massachusetts. By 1790 there were no people enslaved in Massachusetts (McManus 1973; 164–166).

New England Colonies.

Slavery in New Hampshire succumbed to a similar process. Prince Whipple, and enslaved militant African whose owner was a Continental Army officer, shamed his master into freeing him by pointing out the hypocrisy of maintaining slavery during a war for liberty.

During the War, in 1779, Whipple and eighteen other African petitioned the legislature for “Negro” Emancipation. However it was not until 1783 before abolition came in New Hampshire in the state constitution (McManus 1973:166–167).

Probably the largest contingent of the enslaved gaining freedom before Emancipation in 1863 occurred during and after the Revolutionary War. The Revolutionary War set off a widespread anti-slavery movement in the north. Rhode Island, whose economy was heavily dependent on the slave trade although rapid progress was made in the final year of the war the legislature passed a compromise measure that provided for gradual emancipation without disturbing the overseas slave trade.

Laws in French Louisiana

In 18th century French Louisiana, the less stringent enforcement of Code Noir law resulted from what Gwendolyn Midlo Hall describes as a brutal, dangerous, unhealthy frontier environment that needed Africans for survival. Africans were needed as soldiers and workers not only because of poor Indian -French relationships, but also because of the limited occupational skills and physical limitations of the French settlers.

Many of the early Louisiana settlers, who were mostly men, depended upon the help of Native Americans, for survival. That help often came as a result of their intermarriage with Indian women. The French encroachment on Indian lands led to the deterioration of Indian-French alliances and intermittent hostilities with Indians which frequently broke out throughout the colony.

Aside from a few officers and shareholders in the Company of the Indies, Louisiana was colonized by French deportees, sent to the colonies for criminal, seditious and incorrigible conduct. They were mostly men whose usefulness in establishing a colony was questionable. They had little or no knowledge of agriculture and the host of other skills needed to tame the frontier. Mortality rates from malaria and yellow fever, flood and famine were high among the colonists. The Africans, also mostly men, who came to Louisiana were a labor force with expertise in agriculture, black-smithing, copper working, leatherworking, and hunting. Many had physical resistance to malaria and yellow fever and some were skilled medical doctors for these and other tropical maladies. They also possessed a strong sense of justice and were not afraid to demand their rights within the framework of slavery. French enforcement of the Code Noir reflected their need for the Africans and the willingness of the Africans to demand justice or to resist. The section on Cultural Heritage discusses the resistance strategies used by colonial Africans in the Americas.