Slavery and Slave Codes

American Eras

Slavery and Slave Codes

Sources

European Law. English common law did not describe slavery, though it did describe varieties of relations between superiors and inferiors, for example, masters and servants and parents and children. There were, therefore, no specific English legal precedents for slavery in the colonies. Yet slavery did develop in the 1600s, spreading to all the English colonies. The number of slaves grew rapidly in colonies such as Virginia, Maryland, and South Carolina. But a social system like slavery needed legal support in order to survive. Because Spain and Portugal had incorporated Roman law into their legal systems, those countries and their colonies could easily borrow from the ancient statutes to govern the Latin American slavery of the 1600s.

Development. Britain did not use Roman jurisprudence, and the common law’s silence on the subject meant that the English colonies would develop their own law of slavery. Slavery developed in the Chesapeake colonies of Virginia and Maryland first as a socioeconomic practice and only afterward as a legal institution. The earliest Africans in Virginia were probably indentured servants—workers who labored for a set number of years. Gradually during the 1600s it became accepted that whites could be indentured servants but that blacks could be slaves or permanent servants, a status that would pass on to their children.

Virginia. After the mid 1600s slavery came to be sanctioned by statutes passed by the various legislatures. The first of these slave codes was enacted in Barbados in 1661; the most complete was adopted in South Carolina in 1740. Virginia’s assembly passed several such laws. A 1662 statute made the child of a slave woman a slave, even if the father were free. A 1669 law declared that if a slave died while resisting his master, the master could not be charged with a felony; this was based on the assumption that no master would deliberately choose to kill his own slave, and therefore that the death must be presumed to have been unintended. And a 1680 law inflicted twenty lashes on any “negro or other slave” who chose to carry a weapon or to “depart from his master’s ground without a certificate from his master, mistress or overseer.”

South Carolina. The slave code of 1740 in South Carolina was passed after the infamous Stono Rebellion, an uprising that resulted in far more black deaths than white ones. The most comprehensive of the colonial codes, it greatly influenced the slave codes in the South from 1776 to 1861. It stipulated that negroes, mulattos (mixed white and black background), Indians, and mestizos (mixed Indian and white parentage) were to be assumed to be slaves “unless the contrary can be made to appear.” Slaves could travel only with written permission of their masters and were subject to the death penalty for homicide or for attempting “to raise an insurrection.” They could suffer death for lesser crimes as well, such as maliciously destroying “any stack of rice, corn or other grain” or setting fire to “any tar kiln, barrels of pitch, tar, turpentine or rosin.” If accused of such a crime, the slave was entitled to a trial before two justices, but they benefited from fewer legal protections than did whites.

The Spanish. Spain transplanted its laws of slavery to its American provinces. The Spanish codes, since they grew out of Roman precedents, were not based on race, while English colonial statutes were decidedly racist. While slavery throughout the Americas was racist for its enslavement of non-Caucasians, English slave owners wrote this racism into the law itself.

Sources

Kermit Hall, William Wiecek, and Paul Finkelman, American Legal History: Cases and Materials (New York: Oxford University Press, 1991);

Alan Watson, Slave Law in the Americas (Athens: University of Georgia Press, 1989).

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