BLACKS BEFORE THE LAW IN COLONIAL MARYLAND
Chapter III
FREEDOM OR BONDAGE -- THE LEGISLATIVE RECORD
Although Maryland colonists practiced Negro slavery as early as the 1640's, they did not give it legislative sanction until 1664. There were several reasons why the first slave law should have come at that particular time. Perhaps the most important factor was the rapidly rising number of Africans in the colony. In 1640, the black population had been a mere twenty individuals in a non-Indian population of about 600. In 1660, the number of blacks had risen to 760 out of 8,500. Thus, during those two decades, the ratio of blacks to whites had narrowed from one in thirty to one in ten. The African-American were a more visible element in society than they had formerly been. Furthermore, by the 1660's, Maryland was firmly committed to a tobacco staple economy that demanded an abundance of cheap labor. After the first serious tobacco depression, the result of the Navigation Act of 1660, economic conditions in the colony favored those investors with considerable capital who could command large labor forces. The incorporation in 1662 of the Royal Africian Company seemed to assure a ready supply of Africian slaves.[ 1 ] Finally, the passage of time had brought about a new element in the native population: the offspring of mixed parentage. What was their status to be?
The specific issue that prompted the 1664 law, however, was the problem of baptized blacks who claimed their freedom. The Lower House of the Assembly outlined the problem for the Upper House:
Itt is desired by the lower house that the upper house would be pleased to drawe up an Act obliging negroes to serve durante vita they thinking itt very necessary for the prevencion of the damage [that] Masters of such Slaves may susteyn by such Slaves pretending to be Christened And soe pleade the lawe of England[.][ 2 ]
The Lower House clearly recognized black slavery as a prior practice and implied that race distinction should be the sole criterion for its continuance. It also recognized that such a policy would be in direct conflict with English law, [ 3 ] but justified it on the grounds that a valuable source of labor was at stake.
The law as finally adopted had four provisions which may be summarized as follows:
2. All children born of any black or other slave were to be "Slaves as their Fathers."
3. To discourage "dives freeborne English women" who, "forgettfull of their free Condicion and to the disgrace of our Nation", married slaves, thus inconveniencing courts and masters with legal debates over the status of the offspring, any free woman so marrying after the act's passage was to serve her husband's master during her husband's lifetime.
4. To further discourage such marriages, the children of matches contracted after the act's passage were to be "Slaves as their fathers were." The children of such marriages contracted before the act's passage were to serve their parents' masters until they reached the age of thirty-one.[ 4 ]
Herbert Moller observed that such laws reflected not only repugnance toward sexual liaison between the two races, but a sexual double standard as well by excluding white males and black females.[ 6 ] In view of the scarcity of black women in Maryland at this time, the exclusion of liasons between white males and black females may be accounted for on that basis. The earliest slave sex ratio figures are those computed by Kenneth Davies from delivery records of the Royal African Company between the years 1673-1711. Davies concluded that of the 60,000 live deliveries made to the Western Hemisphere during that period, fifty-one percent were men, thirty-five percent were women, and thirteen percent were children.[ 7 ] These figures suggest a preponderance of male slaves during a period considerably later than 1664. More recent work by Russell Menard has shown convincingly that on Maryland's lower Western Shore, black males far outnumbered black females until well into the eighteenth century.[ 8 ] But, we have also seen evidence in the early tax laws and inventories that at least some black women were present in Maryland before 1664.
While the 1664 law was important in giving legal definition to racial slavery, it was evidently inadequate to deal with the particular problem at which it was aimed, keeping Christian blacks as slaves. In 1671, the Assembly had to forge a new act using more explicit language. While the earlier law only implied that Christianity could not enfranchise a black, the 1671 law was less equivocal. Observing that many planters were reluctant to see to the religious instruction of their slaves for fear of losing them upon their baptism and lamenting the reluctance of many to import new slaves for the same reason, the Assembly declared that baptism could in no way effect a black slave's status.[ 9 ] The immediate purpose for this law was to attract more slave labor to Maryland by assuring merchants and masters that religious scruples would not interfete with the marketing and exploitation of a valuable source of labor. The new law reaffirmed the precept laid down in the 1664 law that slavery was decided above all upon the distinction of race.[ 10 ]
But, the 1671 law reflected an ambivalent attitude toward the African-Americans. While its main purpose was to perpetuate black slavery, which implied the chattel status of the enslaved, the language of the law suggested the paradoxical assumption that blacks were people who possessed souls meriting salvation:
Whereass Severall of the good people of this Province . . . . have to the great displeasure of Almighty God and the prejudice of the Soules of those poore people [i.e., their slaves] Neglected to instruct them in the Christian faithe . . . .
In 1678, the Lords of Trade, apparently disturbed at the Assembly's departure from English law in allowing enslavement of Christians, called upon Charles Calvert, Lord Baltimore, to account for the law. Baltimore tried to defend it in humanitarian terms. He said that the opinion had been spreading throughout "many parts of America" that baptizing a slave was tantamount to freeing them. Conveniently ignoring the law's title, "An Act for the Encouraging the Importacion of Negroes and Slaves into this Province," Baltimore claimed its sole purpose was to "encourage the Baptizing" of slaves. He made an awkward attempt to cite English legal precedent to further bolster his argument by comparing this law to an old English law allowing the baptism of villians without their "Manumission or Infranchising." He added that the act had a positive effect because many masters allowed their slaves to be baptized after its passage.[ 11 ] The Lords of Trade did not press the matter and the Assembly reaffirmed the law in 1692.[ 12 ]
The colonial Assembly passed no laws explicitly defining slaves as chattel property. Perhaps their ambivalence (cited above) over the humanity of blacks gave Marylanders pause in this regard. Or perhaps they feared such a law would be disallowed. Nevertheless the wording of a 1681 law pertaining to the settlement of orphans' estates presumed that slaves were chattels. For purposes here, the law stated that no slaves in such estates were to be sold by the court-appointed executors to satisfy estate debts as long as other goods were available for sale. Furthermore, if no creditors made claims that would necessitate sale of the slaves within one year of the death of the owner, then the slaves were to be divided between the surviving relatives and be beyond the pale of creditors. Finally, the guardians of orphaned children in such cases could use the slaves to their own benefit until the children were of age whereupon the slaves reverted to the children. But, the guardians had to return whatever the full substance or value of the slaves was at the time of the intestate's death. The purpose of the law was to prevent dissipation of an estate's most valuable property.[ 13 ]
Certainly by the end of the seventeenth century, slaves and the slave trade were quite valuable to the colony. In 1679, a male slave sold for 8,000 pounds of tobacco[ 14 ] or, at the official value of ld. per pound of tobacco,[ 15 ] roughly £33 sterling. Two years later, a slave boy brought 4,000 pounds of tobacco, [ 16 ] or, at the 1683 rate of 3/5 a penny per pound of tobacco,[ 17 ] roughly £10 sterling. In the same year, the Provincial Court ordered a £60 sterling debt paid for a black man.[ 18 ] The following year, a slave woman sold for 6,000 pounds of tobacco,[ 19 ] or roughly £15 sterling at the 1683 rate. In 1690, with the black population in Maryland in excess of 2,000[ 20 ] and the value of a slave averaging about £30 sterling, the colony had an investment of roughly £60,000 sterling in black labor. During the next decade, the slave population increased by at least a third[ 21 ] and the Assembly enacted an impost upon imported white servants and slaves to help defray soaring public expenses during King William's War. The rates of the duties reflect the most likely sources of revenue and testify to the value of the slave trade to Maryland in the final decade of the seventeenth century. In 1695, the duty for slaves was set at 10 s. per head and for white servants at on 2 ? s. per head.[ 22 ] A year later, the Assembly double the rate for slaves, but left the rate for whites the same.[ 23 ]
Throughout the last quarter of the seventeenth century, the Assembly continually redefined various aspects of the Negro slave's status. In 1681, it passed a new durante vita law which superseded the one of 1664. The first two provisions of the new law were virtually the same as the first two provisions of the earlier law. Africans were to serve for life and pass their condition to their offspring via paternal descent. But, the provisions bearing upon mixed marriages and children of mixed parentage were altered significantly. Beside the "disgrace" of mixed marriages mentioned int he 1664 law, the 1681 law lamented the connivance of masters who exploited the terms of the earlier law and forced freeborn female indentured servants to marry slaves:
. . . for as much a[s] diverse Freeborne English or Whitewoman sometimes by the instigation Procurement of Conievance of theire Masters Mistres or dames, and always to the Satisfaction of theire Lascivious and Lustfull desires, and to the disgrace not only of the English butt allso of many other Christian Nations, do Intermarry with Negroes and Slaves. . . .[ 24 ]
The reason masters forced such marriages was, no doubt, to get more service from white women and to procure more slaves, perhaps in compensation for the scarcity of black females. To end such abuses, the law imposed a fine of 10,000 pounds of tobacco upon any master whom a court of law found guilty of forcing a mixed marriage and a similar fine upon any official solemnizing such a match. Furthermore, any woman so forced was to be freed and any children resulting from the marriage were to be exempt from the paternal descent clause. The husband evidently remained a slave and the marriage, albeit not one of choice, remained intact. The law officially repealed the 1664 law, but did not declare it null and void.[ 25 ]
The most striking feature of the 1681 law is that it applied only to black male/white female marriages contracted under duress. Presumably, marriages contracted voluntarily were in no way subject to it. Furthermore, by repealing the 1664 law and specifically exempting the children of forced marriages, this law implied the freedom of all newborn mulattoes. The only penalties meted out by the law fell upon masters and officials responsible for forced marriages, not upon the women or their children. On the face of it, this law appears to reflect a curious amelioration of the attitudes that underlaid the 1664 law. However, closer scrutiny reveals this was not the case.
The impetus behind the new law was not a desire on the part of the Assembly to rectify previous abuses, but the pressure of Charles Calvert, Lord Baltimore, on behalf of a former female indentured servant of his, Eleanor Butler. Baltimore had returned to Maryland from England in 1681 bringing Eleanor Butler, or Irish Nell, with him. She went to live in the household of Major William Boarman. Before August of 1681, she married a slave on the Boarman estate and Baltimore immediately set about repealing the 1664 law for her benefit. Eleanor remained technically a slave, though she was permitted considerable personal liberty. She married at a time when thw 1664 law was in effect and the 1681 law did not declare the earlier one null and void. It is certain, however, that her children, all born after the 1681 law, did not go free, since her children's descendants were still petitioning for their freedom a century later.[ 25 ]
The failure of Irish Nell's children to benefit from the 1681 law, as Baltimore evidently intended, suggests that the law was not enforced. There is additional evidence to support such an assertion. The law was on the books for eleven years when, in 1692, it was superseded (see below). Throughout that eleven-year period, there is no extant record of any master or official convicted of the crime of forcing a mixed marriage. Furthermore, it appears that the county courts continued operating under the 1664 law. The two surviving promulgations of the provincial laws in county judicial records both list the 1664 law as current during the eleven years that the 1681 law was technically in force.[ 26 ] Finally, in view of the foregoing, it is significant that the Assembly repealed Lord Baltimore's law in 1692, just after Baltimore lost political control of Maryland. Evidently, Marylanders regarded his special law too inamicable to their own interests and disregarded it.
The 1692 durante vita law was both a compromise between and a refinement of the 1664 and 1681 laws. As before, slaves and their children were to serve for life. But, the Assembly broadened and revised the miscegenation provisions. The revised provisions may be summarized as follows:
2. If the woman was a servant, she was to serve out her remaining time, with additions for time lost due to pregnancies, and then she was to become a servant to the parish for seven years, provided the match was not forced upon her by her master.
3. Children of mixed marriages were to be servants of the parish for twenty-one years.
4. If the miscegenating couple was not married, the woman was to suffer the seven-year penalty, the child was to serve for twenty-one years, but, the husband, if free, was only to serve for seven years instead of life.
5. The same penalties befalling a white woman as detailed above were to apply to any white man begetting any black woman with child.
6. Any master forcing a marriage was to forfeit 10,000 pounds of tobacco.[ 27 ]
Until the middle of the 1690's, the major focus of slave legislation was to establish in law the status deemed proper by white masters for their black slaves. Emphasis weighed heavily upon the distinction of race as the basis for the dehumanized condition accorded slaves. But, the racism implicit in these laws merely reflected the terms in which the white population had already been thinking. Thus, a law of 1678 said nothing specifically about the condition of African Americans, but implied much. Entitled "An Act for Keepeing a Register of Birthes Marriages and Burialls in each Respective County," it directed county clerks to maintain such vital records on residents of their counties. But, the law explictly excluded Negroes, mulattoes, and Indians from the statistics. By implication, it said that Negroes, mulattoes, and Indians were not worthy of inclusion in white man's records. It referred to all blacks, free and slave, suggesting that an African's condition as a free person did not make him or her any more worthy of white man's exhalted position than their servile brothers. The distinction was race, not condition of servitude. A similar law was passed in 1695 and repealed in 1696.[ 29 ]
Aside from the problem of putting slaves in a demeaned social position was the problem of keeping them there. Resistance to the white man's order could not be tolerated. While repressive police laws would be more typical of eighteenth-century legislation, the roots of strict social control went down in the seventeenth century, initially in laws regarding runaway servants. The Assembly enacted numerous laws throughout the century to punish runaway servants and people who aided them. Generally, a runaway servant was to restore ten days' service for each day lost. Freemen who aided their flight were subject to monetary fines. Slaves had to be singled out for special treatment since they were incapable of restoring lost time with additional service. Thus, the 1663 law mentioned above (Chapter II) provided that white servants in the company of slave runaways were to restore the slaves' lost time.[ 30 ]
A runaway law of 1692 added a significant aspect to the treatment of servants and, particularly, of slaves:
And whereas some Masters Mistresses and Overseers void of humane pitty and Christian Commisseration have barbaroulsly dismembered and Cauterized their Slaves not only to the Scandall of Christianity, but by such Cruelties keep them from Embracing the same Be it enacted . . . That if any Master Mistress or overseer . . . shall after this Act dismember or Cauterize any such Slave, it shall be lawful for the Justices of the County Court upon proof thereof to manumitt and set free [any] such slave . .
Furthermore, a master denying his servants or slaves sufficient livelihood was to be fined for the first two offenses and, for the third, his servant or slave was to go free.[ 31 ] This was the only law in seventeenth-century Maryland that provided legal machinery for manumission of slaves. Moreover, it was the only law that in any way restricted a master in his treatment of his slaves. Significantly, Virginia had passed a law in 1669 permitting masters to inflict any punishment upon refractory slaves up to and including accidental death.[ 32 ]
The humane treatment clause of the 1692 law was prompted by a specific act of cruelty to a mulatto servant which had come to the Assembly's attention. They added an ex post facto clause to make the law applicable to that incident:
And whereas Thomas Courtney of Saint Maries County hath lately most barbarously dismembered and cutt off both the Ears of a certain Mollattoe girl . . . being a Servant according to a Law of this Province for one and thirty years Be it therefore Further Enacted That the said Mollatoe Girl . . . be hereby Manumitted and sett free from her said Master as a recompence for the Injury so of him received . . .
As we shall see, this law notwithstanding, humane treatment of slaves was not always observed. The first Maryland law dealing specifically with the personal freedom of slaves to move about passed the Assembly in 1695. Entitled "An Act restraining the frequent Assembly of Negroes," it expressed concern over the gathering of slaves on the Sabbath and other holidays thus availing themselves of the opportunity to barter away purloined goods, to conspire for freedom, and even to plot insurrection. To alleviate the problem, the law required that:
. . . no negro slave whatesoever shall presume at any time to travell to any place of meeting or resort to wander about from Plantation to Plantation under pretext of visiting.
Furthermore, it authorized any person discovering slaves in breach of the law to inflict corporal punishment short of dismemberment. If, however, the slave resisted, the discoverer could shoot him to death. Masters were to issue written passes to any slave who traveled abroad on legitimate business or be fined two hundred pounds of tobacco.
The 1695 law was evidently not effective. Three years after its first enactment, Governor Francis Nicholson commented to the Board of Trade that masters still permitted their slaves, as well as their Irish servants, to wander about. He also expressed fear that such practices invited catastrophic consequences:
If next year, or within two or three years, the like number of inhabitants should die [from a severe epidemic sweeping the colony] and as many Irish and negroes be imported (especially the first, who are most if not all papists) it may be of dangerous consequence to Maryland, and also to Virginia, which I hear, is in the same circumstances. They might make great disturbances if not a rebellion, because these are very open countries and they may have easy communication with one another near the falls of the Potomac. And in each province they might do it the easier since it is the common practice for them on Saturday nights and Sundays, and on two or three days at Christmas, Easter and Whitsuntide, to go and see one another even at thirty or forty miles distance. I have several times, both here and in Virginia, met negroes both single or six and seven together in the night time. Most of the negroes speak English and most people have them for domestic servants; the better sort may have six or seven in these circumstances, and there may be not above one English. They send the negro men about boys about the country where they have business and negroes commonly wait on them to all public places, so that the negroes then learn all the public and private roads of the country and circumstances. The Irish servants have more privileges, and I don't know but they may confederate with the negroes; and in the summer they may keep out in the woods about frontiers, which are very thinly inhabited, but are overrun by a great many people's stocks of cattle and hogs, which would supply them with victuals. There are also many swamps in those parts which they might fortify; and it would be very difficult and dangerous to force them out. If such things should happen, even the subduing of them would be a great charge and loss to the country in general and to their masters in particular. I have put the Delegates in mind of these things and shall do so again, in order to obtain a law to prevent negroes and servants from rambling abroad.[ 33 ]
Nicholson's testimony indicates that black servants still had a considerable degree of latitude allowed them in their personal movements. But, it also indicated growing concern over the possible adverse consequences of continuing such practices. As we shall see, there is evidence of increased slave rebelliousness and outlawry during the 1690's.
But the end of the seventeenth century, Maryland had laid the foundations of blacks chattel slavery and had taken the first steps toward stringent social control of the enslaved. In 1699, during Nicholson's administration, the colony codified its servant and slave laws into a single, comprehensive code.[ 34 ] This new law restated the earlier provisions concerned with runaways and otherwise criminal servants. Its section on slavery was essentially a reassertion of the 1692 law, but with two changes. Mulatto children were to serve for thirty-one years instead of twenty-one, and free blacks fathering mulatto children had their punishment reduced from life servitude to seven years. The 1672 law remained intact.[ 35 ]
By 1700, the legal definition of slavery in Maryland was significantly different from slaverythe abstract concept of a century earlier. While life servitude and inheritence of status were still central characteristics of slavery, realities in the New World had altered other essential features. Whereas slavery had been equated with such nonracial conditions as captivity and heathenism, it was now based solely upon the distinction of race. Furthermore, it was now permissible to enslave Christians. The extent of racial distinction could vary from case to case and was diminished if white blood in an African's veins washed his color lighter. But laws create only paper institutions. The relationship between the legal definition and legal fact depend upon the courts which interpreted and enforced the laws and attempted to deal with situations overlooked by the legislators.
The emphasis in slave legislation changed markedly from this point on. Whereas the seventeenth century laws focused on fixing the precise status of blacks--that is putting them in the lowest caste--the laws of the eighteenth century aimed more at keeping them there through increasingly repressive measures. Stringent rules limited the freedom of blacks to move about and own property. Other laws deprived blacks of certain trial rights and provided for harsher punishment of black offenders. Still other measures limited blacks' opportunities to mix with whites and even with other blacks. Manumission, once so freely practiced, became closely regulated. And all the while, as their numbers increased and the colony became more dependent upon black labor, taxation upon this valuable but troublesome property increased.
Menard postulated that, by 1730, the black population in Maryland had reached demographic equilibrium. The sex ration among blacks was nearly equal. The black population was self-perpetuating through natural increase. And a fair number of blacks had the advantage of being native-born. They spoke English as a first language, were immune to white man's diseases, and knew the Maryland countryside as home. Their numbers grew rapidly: 4,500 blacks to 30,500 whites in 1705 (a ration of 1:68); 8,000 blacks to 35,000 whites in 1710 (1:4.4); and by 1755 46,000 blacks to 108,000 whites (1:2.3). throughout the period the trend in slave ownership tended toward greater numbers owned by proportionately fewer whites. Thus blacks would seem to have had greater opportunities for settled family lives and more diverse occupational opportunities. Why then, Menard wondered, was there a tendency toward harsher laws and attitudes towards blacks?[ 36 ] The answer is simply that an ever-growing and increasingly acculturated caste found more sophisticated means to resist.
White Marylanders continued to be vexed by runaway and outlying slaves, as Governor Nicholson had been. In 17000 the Provincial Council took measures to recover fugitive servants and slaves from several Indian tribes. In 1722 the Council struck a treaty with the Shawnese promising gifts in return for fugitive slaves, but further discussion on the matter in the Council over the next few years indicates that the problem was unsolved.[ 37 ] In 1725, the Assembly enacted a law to deal with the matter. The text of the law reveals some interesting facts. It says that many slaves were running away to the "Backwoods," which it roughly defined as that part of Maryland north of the Monocacy River and northwest of the Conestoga road connecting the Monocacy with the Susquehanna River. The Shawnese openly welcomed the black fugitives (so the law stated) and word was spreading among other slaves who were "daily making Attempts to go the same Way." The white legislators seem to have preceived an extensive and sophisticated network of resistence. The network extended from the settled plantations of the sourth and east to the Indian towns of the north and west. Its operatives were both Indian and African.
To undo the network, the law of 1725 established a £5 current money bounty on any slave recovered from the frontier and allocated money and manpower to pay the bounties. It allowed the sale of recovered slaves whose masters failed to reclaim them in order to cover the expense of retrieving and holding the fugitives. Slaves so recovered were summarily to have one ear cut off for the first offense. For the second offense, they were to have the other ear cut off and have the letter "R" branded on the chin. Underaged blacks and recently imported blacks were exempted from the corporal punishment.[ 38 ]
The Council, sitting as the Upper House, complained to the Lower House the following year that "the late Law for taking up negroes is not Comprehensive enough to prevent their Escape." Futhermore, the Council complained, imported convict servants were joining in the freedom flood. The councillors urged the delegated "to Consider of some further means to prevent the aforesaid Evills." The delegates were less excited. They reassured their colleagues saying, "we are in hopes that by the next Sessions of Assembly we shall better see the Effects of the Act."[ 39 ] Apparently the Lower House's confidence was sound for no more was said on the matter until the early 1740's when the Council arranged treaties with several Indian chiefs for the return of runaway servants and slaves.[ 40 ]
Runaway slaves were vexatious to their white masters because they posed a threat to social order by raiding from the frontier and because their absence deprived masters of valuable labor. Incarceration of slaves accused of crime also deprived masters of valuable labor. In 1712 a special legislative "Committee of Aggrievances" noted that slaves awaiting trial for capital and corporal crimes could languish as long as six months in jail awaiting the next session of the Provincial Court. This was espensive both to masters deprived of labor and to the public treasury which had to support the prisoners. To expedite matters the committee suggested that blacks be tried in county courts. The committee's recommendation is a significant milestone in the deprivation of civil rights for blacks. What was true of black slaves languishing in jail must also have been true of white servants. The committee did not recommend that whites be tried on matters capital or corporal in the county courts, only blacks. The committee also bemoaned the freedom many whites gave their slaves to roam about "to the Terror of the good People of this Province."[ 41 ]
The next year the same committee went further with its recommendations and suggested that slaves suspected of petty theft be tried summarily by one or two county justices. Their justification was to save all the expense incurred by holding slaves for jury trials.[ 42 ] The process of racial discrimination shown here was subtle. The committee did not say, "Blacks are inferior. Let's deprive them of jury trials." It said, "We have to cut expenses somehow. Jury trials cost money, especially when we give such trials to slaves. Slaves are inferior, let's save some money by not giving them jury trials." The recommendation did not extend to free blacks. But all slaves were black and most blacks were slaves. The implications, therefore, were far-reaching.
A few years later the old question of what to do about white women who married slaves came up for discussion again (The law of 1692, reaffirmed in 1699, required that they were to become servants for seven years.) Some legislators wanted to revert to the practice of making them slaves for as long as their husbands lived. There was no further discussion of this matter.[ 43 ] But another matter brought up did result in some instructive discussion.
The Council/Upper House, which generally took a harder line than the Lower House on racial issues, noted that Virginia levied a stiff fine on anyone who freed a slave and required the freed slave to leave the colony. In 1715, while the two houses were hashing out a major new piece of servant and slave legislation, the Upper House wished to include in the bill a requirement that manumitters of slaves be fined £12 (the same fine to be levied against the estate of masters who manumitted slaves by terms of a will) and that manumitted slaves be slaves "to the Use of the Free Schools." The Lower House responded saying that it would be "hard to restrain any master or Overseer to sett free any well deserving negro or molatto Slave, for probity in such Persons is by means discouraaged, no master or Owner being at Liberty Otherwise to recompence the good Actions of a well deserving Slave." Thus the Lower House felt that manumission should be offered as a positive incentive to slaves. The delegates did agree with the gentlemen of the Upper House on two other matters. Negroes or mulattoes who harbored fugitive slaves should be fined double what whites were fined, and ministers who solemnized interracial marriages should be fined.[ 44 ]
The law that emerged from the 1715 session was the most comprehensive servant and slave law yet enacted in Maryland. There were 26 provisions in it and the order in which they appeared suggests that uppermost in the legislators' minds was not the question of status, but the question of control. The provisions may be summarized as follows:
2. Any servant (slaves not specified) in violation of the above provision would make up ten days for every one day missed.
3. Any person harboring "any such Servant or Slave" (first mention of slaves) was to be fined 500 pounds of tobacco for every night or 24 hour period.
4. Any free black or mulatto harboring a runaway was to be fined double and be subjected to servitude if he or she could not pay.
5. Any person traveling outside his or her county without a pass from their home county justices was subject to seizue as a runaway servant.
6. Any person who capatured an itinerant was to receive 200 pounds of tobacco either from the itinerant's master or, if the itinerant was free, from the actual culprit.
7. Any person who seized a runaway servant or slave could use the fugitive as he or she saw fit until the next county court session.
8. Freed servants were to be given certain items of clothing and tools.
9. Any person who bartered with a servant or slave was subject to a fine of 2000 pounds tobacco.
10. Any person receiving goods valued in excess of 1000 pounds tobacco from a servant or slave had to restore the full value to the rightful owner or receive 30 lashes.
11.-14. Pertained to terms of service for white servants.
15. Any person bringing runaways back from neighboring colonies could receive 400 pounds tobacco or 40 s.
16. Masters were limited to ten lashes when correcting servants (slaves not specified) and were enjoined from otherwise mistreating them.
17. All African-Americans would be slaves "dureing their naturall lives."
18. Baptism of blacks would not be grounds for freedom.
19. Ministers, pastors, or magistrates who solemnized marriages between blacks or mulattoes and whites were to be fined 5000 pounds tobacco.
20. White women bearing children by black or mulatto men were to become servants for seven years. Servant women so offending were to restore time lost due to pregnancy and child rearing and become servants for seven years after their present term expired. Free blacks fathering bastards by white women were to become servants for seven years. The children of "such Unnatural and Inordinate Copulations" were to be servants for 31 years. White men fathering children by black women (free or slave) would suffer the same penalties as white women. (All features of this provision were carried forward from previous laws. Because this provision failed to take into account free mulatto women who bore bastards by "Negroes and other slaves" and free black women who bore bastards by whites, it was ammended in 1728 to include them in the seven year extra service penalty.)
21. Pertained to white servants women who bore bastards by white men.
22.-23. Pertained to courts hearing complaints of servants (slaves not specified).
24. No "Negroe or other Slave" was permitted to carry a gun or other offensive weapon off his master's land without a license signed by his master.
25. Servants (not slaves) who stole goods valued at less than 1000 pounds tobacco were liable for restoring four-fold the items' value in added service plus whipping and pillorying.
26. Any person, blacks and mulattoes excepted, taken up without a pass could be held no longer than six months. If the person could prove his or her free condition before then, he or she was to be discharged upon satisfying their jailing fees.[ 45 ]
2. They could, however, give evidence in cases against other blacks, mulattoes, or Indians provided other evidence was insufficient and the punishment did not extend to life or limb.
3. At the time of conviction for a captial offense, a slave was to be impartially valued and his or her owner was to be compensated 75 per cent upon the slave's execution, paid out of the public treasury. This provision was necessary, the law said, because masters often concealed felonious slaves to protect their own investment.
4. Any free black or mulatto marrying a white was to become a slave for life, except mulattoes born of white women, who were to become servants for seven years. Whites so marrying were to become servants for seven years.
5. Any black, Indian, or mulatto slave suspected of theft could be tried summarily by any Provincial or county justice and, upon presentation of sufficient proof, be punished with up to forty lashes.[ 46 ]
Summary punishment of blacks preceeded the law of 1717 by quite some time. There are at least three examples of county justices summarily punishing blacks with up to 39 lashes for theft between 1700 and the law's enactment. However there are also examples of whites being summarily punished with lesser whippings and added service time for such things as swearing in court and running away from masters. In 1721 the Prince Georges justices ordered a white servant summarily to suffer 20 lashes for hitting his mistress in the head.[ 48 ] There are many examples of blacks being summarily punished after the act's passage. All of these examples indicate that the county courts, as a matter of course, dealt with lower class offenders expeditiously, regardless of race, without too much regard for legal rights. The legislature, however, saw fit only to condone the summary punishment of blacks.
In 1723 the Assembly took very strong measures to restrain the personal liberty of blacks and to further reduce any rights to due process and property they may have had. The law of 1723 also marks the origin of slave patrols in Maryland. The preamble decried the "evil Consequences" of "Negro and other Slaves" congregating on the Sabbath and other holidays and of their owning livestock. Seven provisions followed:
2. The constables were empowered to raise posses for aid. Whites and blacks were subject to serve in the posses. Whites refusing were to be fined 100 pounds tobacco, blacks up to 30 lashes. (It is interesting to speculate that the legislators may have intended some psychological advantage over blacks by compelling them to participate in bringing in their fugitive fellows.)
3. Any tumultuous black who struck a white in the course of suppression of any such meetings was to have an ear cropped upon testimony sworn before a justice.
4. Any plantation owner who discovered illegal gatherings of blacks on his property was empowered to order them dispersed and to administer up to 39 lashes on anyone refusing to obey. Any white person who encouraged such gatherings was subject to a 1000 pounds tobacco fine.
5. Masters permitting slaves to own livestock were to be fined 500 pounds tobacco. The contraband livestock was to be confiscated and its value divided between the province and the informer.
6. Runaway and outlying blacks could be shot to death upon refusal to surrender. (Later laws specifically indemnified whites from prosecution in such cases.)
7. The respective county sheriffs were to see that the text of this law was publicly read.[ 49 ]
On 1723's heels a year later came another harsh law, "An ACT for the more effectual Punishing of Negroes and other Slaves; and for taking away the Benefit of Clergy from certain Offenders." The language of its preamble is significant. It cited "several Petit-Treasons, and cruel and horid Murders" committed by blacks in the recent past and warned that the similar incidents were likely to occur because blacks "have no Sense of Shame, or Apprehension of future Rewards or Punishments." Furthermore the usual manner "prescribed by the Laws of England" for executing offenders were "not sufficient to deter a People from committing the greatest Cruelties." Therefore more notorious executions were in order. The law provided as follows:
2. Because of recent problems with certain persons (not just blacks) breaking into "Shops, Store-houses, or Ware-houses, not contiguous to, or used with any Mansion-house" and stealing, the law provided that any such offender, upon due conviction, could be sentenced to death without benefit of clergy.[ 50 ]
In 1712, Negro Hanniball successfully pleaded benefit of clergy before the Provincial justices in a case where his white woman accomplice was found not guilty. In 1718 the Provincial Court condemned Negro Mingo for burgarly and compensated his master three fourths of Mingo's value. A year later the court took the same action in the case of Negro Sambo. In 1721 athe Provincial justices condemned Mulatto Daniel, identified as a slave, but failed to mention compensation. Two years later, they condemned Negro Bristo and compensated his master as law provided. Hanniball and Bristo were specifically charged with breaking into dwellings. In the other three cases, the indictments do not make clear that the buildings entered were dwellings or associated with dwellings. Presumably there were in view of the death sentences.[ 51 ]
In other cases blacks who were charged with breaking into structures were spared death for one reason or another. In 1721 a Provincial Court jury found Negroes Adam and Nann guilty of theft but not of housebreaking to affect the theft. The court gave them two hours in the pillory and 39 lashes each. Two years later, when a jury failed to convict Negro Plutoe of housebreaking, the Provincial Court nevertheless ordered the defendent to be whipped (number of strokes not specified). Negro Pompey was found not guilty of housebreaking in 1723 and was discharged.[ 52 ]
In a final and perhaps most significant burgarly case that same year, three black slave women, Pegg, Anne, and Doll, were convicted of breaking into a storehouse and stealing a long list of small goods. But, the jury noted with the verdict, because the storehouse was not contiguous to any dwelling and because no one was in it at the time of the crime, the jury was not certain that the offense constituted burgarly. The Provincial Court decided that the offense was not burglary and ordered each defendent to be burned with a "T" on the left thumb.[ 53 ]
About the same time (1720), a white man named Philip Long, a cooper, was condemned to death for burglarizing a house.[ 54 ]
There was one instance of a black murdering a white during the period prior to the law of 1724's enactment. In 1723 Negro Hannah was condemned upon confession for clubbing a white man to death. The Provincial Court added a grisly spectacle to her execution. Once dead, her body was to be "hanged up in Chains on the . . . Gallows there to remain Untill she be Rotten." Such practice would shortly become commonplace. This is the first documented instance where it was done. Hannah was valued and her master compensated.[ 55 ]
These cases are sited here because they provide a backdrop for the law of 1724 which provided death without benefit of clergy for whites and blacks who broke into store houses not associated with dwellings and for dismemberment of slaves executed for murdering whites. There must have been other cases of slaves murdering masters which did not go to trial. This period is a watershed for Maryland criminal justice. Slaves and convict servants would suffer Draconic punishment for "petit treasons" in Maryland from here on out. The new trend correlates with the rise of slave and convict labor in Maryland.
The escalation of represive measures against refractory slaves continued. In 1736 a law supplementary to those of 1723 and 1724 was proposed. It passed the following year. It declared existing laws "for the Punishment of Slaves" to be "Insufficient to Prevent their Committing very great Crimes," and added that more speedy means needed to be found for bringing slaves to justice. Its provisions came right to the point.
2. Any slave attempting to burn any storehouse noncontiguose to a dwelling would suffer death without benefit of clergy.
3. Any slave arrested on suspicion of the above was to be held for trial by either the Provincial Court on Assize or the county court where the offense occurred, whichever should come first. (This provision is very important because it gave county courts the power to try blacks--but not whites--for capital offenses.) This provision also permitted blacks to testify against other blacks in such cases.
4. Any slave giving false testimony in such cases was, upon conviction, to have one ear cut off and 39 lashes administered on the day of conviction and to have the other ear cut off and 39 more lashed the following day.
5. Slaves condemned to death were to be valued and their masters compensated the full sum (up from three fourths).
6. Slaves apprehended while rambling, running away, or harassing whites were subject to whipping, ear cropping, or branding, or anything else the justices might see fit.
7. Slaves killed in the course of apprehension would be valued and their masters fully compensated.
8. Any person enticing a slave to flight was to repay the slave's full value to the master or suffer a year's imprisonment upon conviction. If the enticer was a servant, he was to render extra service to cover the slave's full value.
9. The sheriff of each county was to read the act publicly once a year.
Storehouse burglary, much of it committed by slaves and convict servants, remained so rampant that the Assembly denied benefit of clergy to anyone convicted of that crime the same year by terms of another law which also made boat stealing (in certain cases) and Negro stealing capital offenses. Negro stealing included not only kidnapping but also the mere enticing of a slave to abandon his or her master's service. Of course, the law specified, any slave condemned for these offenses would be valued and his or her master compensated.[ 56 ]
By the fourth decade of the eighteenth century, Maryland had completed fashioning the essential features of her colonial slave code. While more laws were forthcoming before the end of the colonial period, they mostly reenacted previous provisions or added small details to the substantially completed codes. In 1747, for example, a law was passed to suppress the sale of liquor to blacks and to suppress the tumultuous meetings of Quakers. A 1748 law took note of the practice of certain "crafty and ill-disposed Persons" who entertained initnerant slaves for less than twenty-four hours at a time to avoid the fine imposed by provision (3) of the law of 1715 (which provided for a 500 pounds tobacco fine for each 24 hour period or overnight). The same law also decried the practice of slave abettors who enticed slaves "secretly to make away with and embezel the Goods of their Masters or Owners." To rectify these problems, the law subjected persons to a fine of 100 pounds tobacco or 39 lashes for each hour they entertained itinerant slaves. Slaves who harbored other slaves could be summarily whipped.[ 57 ]
The Assembly enacted the last major colonial slave law in 1751. All of its provisions are familiar:
2. Slaves who conspired or acted to burn any storehoouses were to suffer the same.
3. Slaves committing such offenses were to be held until the next Provincial Assizes or county court session, whichever came first.
4. Slaves giving false testimony in cases against other slaves were to have both ears cropped and receive 78 lashes over two days.
5. Slaves condemned to death were to be valued and their masters compensated fully.
6. Itinerant slaves were subject to summary whipping, ear cropping, and branding on the cheek with a letter "R" upon complaint by a master, overseer, or injured party sworn before any justice.
7. Any person killing a fugitive slave who refused to surrender was immune to prosecution. The slave's master was to be compensated fully.
8. Anyone who caused a slave to leave his or her master's service was subject to repay the master in full or suffer a year in prison or, if he or she was a servant, four years service to the slave's master upon conviction by a jury in the county were the offense occurred.[ 58 ]
Of scant comfort to Maryland blacks were two laws that favored them somewhat. One prohibited unscrupulous masters from freeing aged or infirm slaves who were incapable of caring for themselves unless the masters maintained the slaves at their own expense following manumission. The same law also made manumission by will unlawful (the date is 1752, right at the time of the Gibb slaves' freedom suit, see below Chapter ). Masters could free only able-bodied slaves under 50 years of age and had to do so by swearing out a deed of manumission before a justice. Such a deed, however, in a black's possession, was sufficient proof in law of his or her status as a free person. This bill was continued in 1755, but a similar bill proposed in 1768 failed to pass. A final law, passed in 1766, directed the counties to pay "all legal Fees" arising from the prosecution of "any Negro or other Slave." This latter law anticipated by 200 years the notion that indigent persons were intitled to defense at public expense. It may also indicate the declining fortunes of slaves who were no longer permitted to own livestock by terms of the law of 1723 and thus were no longer able to afford counsel. Slaves as a valuable property were increasingly taxed throughout the period.[ 60 ]
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By the end of the colonial period in Maryland, the law of slavery had established the presumption that all blacks and mulattoes not born of white women were slaves for life. Their condition descended to their children and baptism into the Christian faith was not grounds for freedom. Sexual intercourse across the color line, whether within wedlock or without, was subject to penalties of servitude for all white man and women, all black men and all free black women. Slave women were exempt from any such penalties, probably because any children they had would be valuable slaves. The children of all other cases of miscegenation were to be servants for 31 years. This no doubt was intended as a deterrent to such liasons and may also reflect the ruling class' desire to get as much servant labor as possible. But it was also a blatant example of visiting punishment for parents' sins upon innocent children.
Throughout the colonial period, the civil and personal rights of slaves (and by implication all blacks) slowly erroded. The freedon to move about and consort with other blacks, and even with whites, was proscribed. Blacks were subject to, and whites permitted to administer, summary punishments for certain acts of resistance or recalcitrance including whipping, branding, ear cropping, and death. Slaves could not own livestock, a proscription that must have adversely affected their standard of living. No black, slave or free, could give evidence against any white, and false testimony against another black could bring whipping and ear cropping. Blacks convicted of certain crimes could suffer not only death, but dismemberment. County courts, which were not competent in law to try whites on capital offenses, could try blacks (though still by jury and according to due process). And manumission, the only means by which most black Marylanders could hope to escape from bondage, was closely regulated.
An article by William M. Wiecek,[ 61 ] which discusses the slave statutes of all the thirteen colonies, permits a comparison of Maryland's slave code to those elsewhere in British North America. Wiecek found that in all of the mainland colonies the basic laws of slavery merely sanctioned existing practice, as we have seen was true in Maryland. No colony passed specific legislation stating that there would be slavery, only that blacks would be slaves, as Maryland did in 1664. Stressing that lawmaking is and was a fluid process and that categorization of laws can lead to a false notion of consistency, Wiecek divides slave law into seven categories:
2. Those that specified what rights slaves might have had (rare).
3. Laws providing for the policing of slaves.
4. Laws specifying special crimes that slaves could be guilty of and whites, by implication, not.
5. Statutes that restricted whites in how they could deal with slaves.
6. Those that regulated or limited manumission.
7. Laws restricting free blacks.
All of the colonies' slave codes had four essential features in common: slavery was defined in terms of lifelong service; status descended through the mother; blackness was equated with slavery; and slaves were legally regarded as chattels personal. Maternal descent of status represented a departure from English common law, which had provided that descent of villainage would be paternal. The switch was due to several factors; the prospect of slave mothers raising free children was problematic; the stigma placed upon miscengenation; and the desire for more slaves. The equation of blackness with slavery put the burden of proof to the contrary on free blacks.
The mainland colonies recognized early the necessity of permitting the enslavement of black Christians. A 1705 Virginia law sheds much light upon the rationale behing the application of this principle. It drew a distinction between blacks who had been Christianized before coming to America and those blacks baptized after importation. The former were spared enslavement, the latter not. We will see evidence that this precept operated in Maryland though it was not set down in law (see below, Chapter ).
South Carolina tried to make slaves real property in 1696, in accordance with the common law practice regarding villainage. But, by 1750, all the colonies had come to regard slaves as chattels. Maryland never enacted this concept into law but did, as we have seen, passed laws which assumed it to be so.
The only major right granted to slaves was the right to petition for their freedom in the courts. South Carolina (1740) and Georgia (1755) set this right down in statute. Though Maryland never made a law in this regard, its courts did routinely admit such petitions and, more often than not, granted them (see below, Chapter ).
Several colonies had laws admonishing masters to treat their slaves civilly and to provide them adequate food, clothing, and shelter. Maryland passed such a law once, in the 1690's, and nothing more was said on the matter. Georgia and South Carolina made the unnecessary killing of slaves subject to fines and death, though the killing of slaves in the course of suppressing resistence or as an accidental outcome of correction was permissible. Maryland never made the unnecessary killing of a slave an offense. It did condone Negro killing in the course of slave control.
As in Maryland, it was general practice on the mainland to proscribe the owning of livestock by slaves; likewise bartering and trading with whites. The island colonies, in contrast, encouraged slave economy.
A few southern colonies enacted laws prohibiting the teaching of reading and writing to blacks as well as office holding. Colonial Maryland had no such laws, but it is unlikely that such laws were even necessary there.
Like Maryland, most colonies prohibited blacks from carrying arms. But, in colonies where blacks were so populous as not to be overlooked as sources of manpower in time of war, the lawmakers were not as quick as Maryland's to prohibit military service by blacks. Virginia permitted blacks to be enlisted for non-combatant roles such as musicians and laborers. In 1704, when South Carolina was vulnerable to Spanish attack, militia regiments were permitted to enlist blacks. Masters were to be paid for the service of their slaves and compensated for those killed in service. Wounded slaves were freed. In 1755 (French and Indian War) Georgia permitted its provincial regiments to enlist slaves up to one third total authorized strength provided masters approved of their slaves being so enlisted. Again, masters were to be compensated for their slaves' service. Slaves performing meritorious service were freed. Maryland never moved in this direction probably because necessity never compelled it.
Blacks were universally proscribed from testifying against whites. (Wiecek erroneously says Maryland was an exception to this rule.) They could, as in Maryland, give evidence against other blacks.
Maryland's laws on the policing of slaves was generally consistent with thouse of other colonies. Like Maryland, the other slave colonies required the entire community, white and black, slave and free, slaveholding and non-slaveholding, to mobilize for the purpose of maintaining order. The laws establishing that principle stigmatized blacks as savage and ungovernable. Maryland's penalties for slaves who resisted were not as severe as some. South Carolina, for example, allowed not only whipping, branding, ear cropping, and death, but also permitted severing of the Achilles tendon and castration. Virginia, like Maryland, permitted the shooting of outlying blacks but, unlike Maryland, also permitted the summary dismemberment and castration of outlying blacks who resisted capture. Masters whose slaves were killed in the course of capture were always compensated.
Southern whites lived in constant fear of slave rebellion. Maryland was not alone in closely restricting the freedom of blacks to move about and congregate with other blacks. All colonies permitted summary punishment of offenders and many, though not Maryland, required their militiamen to be armed at all times in case of slave insurrection and revelries.
As in Maryland, the slave codes of other colonies recognized that slaves, though classed as property, were also possessed of personality and were therefore capable of committing crimes. To expedite the trying of blacks for capital offenses, other colonies also permitted local courts to hear such cases even though those same courts were not competent in law to try whites for capital crimes. Nevertheless slaves so tried were assured by statute in South Carolina and Georgia of trial by jury. As we shall see, Maryland routinely tried such cases by jury as well (see below, Chapter ).
To deal with crimes regarded as uniquely slave crimes, other colonies, like Maryland, adopted the English common law concept of petty treason and put murder and attempted murder of whites, rape of white women, arson, theft, aiding or encouraging runaways, and killing of livestock in this category. Maryland did not specify the killing of livestock in its list of petty treasons. Trials in these cases were not required. Some colonies, though Maryland was not among them, allowed special boards of inquiry composed of two or three justices of the peace and seven freeholders to try petty treasons and decide punishment. All these offenses could be punishable by death. Virginia and North Carolina also permitted castration in such cases. New York and North Carolina permitted death by burning.
Most slaveholding colonies were vexed by whites who aided blacks in flight then extorted cheap labor from them. Many including Maryland, provided that such crimes could be punishable by death without benefit of clergy.
Maryland's problem of unscrupulous masters who manumitted aged and infirm slaves was shared elsewhere. Most colonies had to outlaw the practice.
In all, Maryland's slave code was more similar to than different from those of other colonies. Statutes are, however, only prescriptions for how society should behave. They represent the desire on the part of an elite class to regulate the behavior of and impose its own value system upon the rest of society. To assess the extent to whict the statutory prescriptions were enforced, we must turn to case law.
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