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Custom and law: The status of enslaved Africans in seventeenth-century Barbados

2016; Frank Cass & Co.; Volume: 37; Issue: 2 Linguagem: Inglês

10.1080/0144039x.2015.1123436

1743-9523

Jerome S. Handler,

Caribbean history, culture, and politics

ABSTRACTThe island of Barbados provides an ideal case study to explore the beginnings of slavery and definitions of slave status in England's early American colonies. Africans and Europeans confronted each other earlier and on a larger scale in Barbados than in any other English colony. By tracing the development of slavery from the colony's settlement in 1627 this article argues that the legitimization or legalization of African slavery and the status of slaves were established in custom long before any slave laws were passed. Focus is on slave status as a point of analysis, implicitly defined by three major features: chattel property, lifetime (or permanent) servitude, and inheritance of slave condition from an enslaved mother. In examining the evidence for these features, the article contends they were part of the culture of the Euro-Atlantic world and English worldview by the time the island was settled. None of the features was ever defined in any law; rather, they were implicit in any Barbados law that mentioned slaves. AcknowledgementsI am particularly grateful to Kent Olson, Director of Reference and Research Services, University of Virginia School of Law for his invaluable help in locating sources and to James Sweet for his encouragement and substantive contributions to a much earlier draft. Lynsey Bates gave valuable research and editorial assistance. Katharine Gerbner, Mark Hauser, Barbara Heath, and Gregory O'Malley read various drafts and offered many helpful suggestions. Christopher Tomlins, David Eltis, and Philip Morgan also gave advice while Kathryn Lebert bravely copy-edited the final draft.Disclosure statementNo potential conflict of interest was reported by the author.Notes on contributorJerome S. Handler is Senior Scholar at the Virginia Foundation for the Humanities, 145 Ednam Drive, Charlottesville, VA 22903, USA.Notes1. Description of these events is largely based on first-hand accounts given about three decades after the landing took place. Although several accounts agree that some Africans arrived with the first colonizing party, their number is not certain. The ship's boatswain, reported 'tenn negroes taken in a prize' while the ship's carpenter gave '2 or 3 blacks'. John Smith had learned from two early settlers that there had been 'seven or eight Negroes'. Materials on the first landing and early settlement of Barbados are derived from a variety of documents relating to conflicting claims to the proprietorship of the island. Henry Powell's Examination, 25 February 1657. MS. G. 4. 15, 157–61. Trinity College, Dublin; The first plantation of Barbados, in Breviat of the Evidence given into the Committee of the House of Commons by the Petitioners against the Earl of Carlisle's patent [1647]. MS. G. 4. 15, 80–4, ibid.; The Humble Petition of Capt. Henry Powell to the Right Honourable Daniel Searle, n.d. [ca. 1652], Rawlinson MS. C94, Bodleian Library, Oxford (published in V.T. Harlow, ed., Colonising Expeditions to the West Indies and Guiana [London: Hakluyt Society, 1924], pp. 36–8); 'An Abstract of some principal passages concerning Sir William Curteen [sic], his heirs and their claim in and to the Island of Barbados, taken by John Darell from Captain Henry Powell, John Powell and others', June 1660, PRO 30/24/49, no 2b, The National Archives, London [TNA]; John Smith, The True Travels, Adventures, and Observations (London, 1630), pp. 55–6.2. Henry Winthrop, Letter to Emmanuel Downing, 22 August 1627; ibid., Letter to John Winthrop, 15 October 1627. Winthrop Papers (vol. 1, 1645–9: 356–7, 361–2), Massachusetts Historical Society, Boston.3. 'A True State of the Case between the Heires and Assignes of Sir William Courteen, Deceased, and the Late Earl of Carlisle', 1644, MSS. 2395, fol. 602, British Library [BL]; John Darrell, 'Abstract of Some Principal Passages Concerning Sir William Courteen's Heirs and their claim in and to the Island of Barbados', 1660, PRO 30/24/49, no. 2b, TNA.4. In surveying the literature, in addition to more general works on slavery, I have focused on works that address the beginnings and early development of African slavery in England's Caribbean and North American colonies. The sample of this literature extends considerably beyond the items cited in this article. Barbados is often mentioned or discussed in such works and modern historians who focus on seventeenth-century Barbados invariably mention slavery or discuss it at length. However, none of these writers specifically address, or only very marginally consider, the issue of slave status and its development.5. Figures compiled from: 'True State of the Case'; Jonathan Atkins, 'An Account of His Majesty's Island of Barbadoes and the Government Thereof', 1676, CO 1/36, no. 20,TNA ; Peter Colleton, Letter to Council for Trade and Plantations, 28 May 1673, in Calendar of State Papers Colonial, America and West Indies, vol. 7, 1669–1674, ed. W. Noel Sainsbury (London: HMSO, 1889) p. 495; 'Some Observations on the Island of Barbadoes', CO 1/21, no. 170, TNA; Planters of Barbados, 'Petition to the Crown', 1655, Additional MSS. 11411, fol. 9b, BL; John Scott, 'The Description of Barbados', 1668, Sloane MSS. 3662, fols. 54–62, BL. As in virtually all New World slave societies the actual number of slaves is unknown for specific years in the earliest periods. Barbados is no exception and the reliability of figures is often problematic.6. James Stephen, The Slavery of the British West India Colonies (London, 1824), 14.7. Thomas D. Morris, Southern Slavery and the Law, 1619–1860 (Chapel Hill: The University of North Carolina Press, 1996), 425–6; Arnold Sio, 'Interpretation of Slavery: The Slave Status in the Americas', Comparative Studies in Society and History 7 (1965): 289–308; M. I. Finley, ed., Slavery in Classical Antiquity (New York: Barnes & Noble, 1968), 307; K.R. Bradley, 'On the Roman Slave Supply and Slavebreeding', in Classical Slavery, ed. M.I. Finley (London: Frank Cass, 1987), 1.8. Michael Guasco, Slaves and Englishmen: Human Bondage in the Early Modern Atlantic World (Philadelphia: University of Pennsylvania Press, 2014), 287n14; David Eltis, The Rise of African Slavery in the Americas (Cambridge: Cambridge University Press, 2000), 73. Essentially the same point was made by Carl Degler in an early critique of Oscar and Mary Handlin's contention that the 'legal institution' of slavery in England's colonies, particularly in the Chesapeake, only started with written laws ('Slavery and the Genesis of American Race Prejudice', Comparative Studies in Society and History 2 (1959): 60; Handlins, 'Origins of the Southern Labor System', William & Mary Quarterly 7 [1950]: 199–222).9. William M. Wiecek, 'The Statutory Law of Slavery and Race in the Thirteen Mainland Colonies of British America', William and Mary Quarterly 34 (1977): 262–4.10. Winthrop D. Jordan, White over Black, American Attitudes Toward the Negro, 1550–1812 (Chapel Hill: The University of North Carolina Press, 1968), 57, 61.11. Guasco, Slaves and Englishmen, 92, 172, passim; cf. Degler, 'Slavery'; Robin Blackburn, The Making of New World Slavery: From the Baroque to the Modern, 1492–1800 (London: Verso, 1997), 42–93; Edward Rugemer, 'The Development of Mastery and Race in Comprehensive Slave Codes of the Greater Caribbean during the Seventeenth Century', William & Mary Quarterly 70 (2013): 432.12. Although Jordan (White over Black, 3–43) discusses the negative cultural and physical characteristics Englishmen attributed to Africans, Thompson's critique is justifiable, viz. Jordan seems to have put too little emphasis on the prejudices in existence by 1600 in England and other European societies against Africans. In fact, he did not pay sufficient attention to European works on the subject between 1450 and 1600. Alvin O. Thompson, 'Race and Colour Prejudices and the Origin of the Trans-Atlantic Slave Trade', Caribbean Studies 16 (1976–77): 29–59.13. James Sweet, 'Spanish and Portuguese Influences on British Slaving 1480–1619', (Unpublished MS, 2013), held privately by the author; cf. Jordan, White over Black, 56–63; Degler, 'Slavery'.14. April Lee Hatfield, 'A "Very Wary People in Their Bargaining" or "Very Good Marchandise": English Traders' Views of Free and Enslaved Africans, 1550–1650', Slavery & Abolition 25 (2004): 3, 12–13; cf. Guasco, Slaves and Englishmen, 80–120; John C. Coombs, 'Beyond the "Origins Debate": Rethinking the Rise of Virginia Slavery', in Early Modern Virginia: Reconsidering the Old Dominion, ed. Douglas Bradburn and John C. Coombs (Charlottesville: University of Virginia Press, 2011), 239–78; Blackburn, New World Slavery, passim.15. Robert Burns, Las Siete Partidas, vol. 4, 'Family, Commerce, and the Sea' (Philadelphia: University of Pennsylvania Press, 2001), 977–86; Sally Hadden, 'Slave Codes', Oxford Bibliographies, Atlantic History www.oxfordbibliographies.com (accessed March 3, 2014).16. For possible reasons, see Hatfield, Atlantic Virginia, 285n102; Alan Watson, Slave Law in the Americas (Athens: The University of Georgia Press, 1989), xii; and particularly Elsa Goveia, 'The West Indian Slave Laws of the 18th Century', Chapters in Caribbean History 2 (Barbados: Caribbean Universities Press, 1970), 12, 21, 25, 35.17. Morris, Southern Slavery, 42.18. Christopher Tomlins, Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580–1865 (New York: Cambridge University Press, 2010), 418–9; Bradley Nicholson, 'Legal Borrowing and the Origins of Slave Law in the British Colonies', The American Journal of Legal History 38 (1994): 42.19. Gary A. Puckrein, Little England: Plantation Society and Anglo-Barbadian Politics, 1627–1700 (New York: New York University Press, 1984), 7; cf. Larry Gragg, Englishmen Transplanted: The English Colonization of Barbados (Oxford: Oxford University Press, 2003).20. Slaves were occasionally baptized in seventeenth-century Barbados, the first baptism occurring in 1651, but baptism and claiming to be a Christian would not ipso facto free a slave; this also applied to slaves who claimed baptism in Africa. In fact, throughout the period of slavery, no Barbados law made manumission possible for baptized slaves, nor was it accepted in custom. Unless under exceptional circumstances such as reward from the legislature, only owners could manumit their slaves, an extension of their property rights. Jerome S. Handler, The Unappropriated People, Freedmen in the Slave Society of Barbados (Baltimore: The Johns Hopkins University Press, 1974), 30–47; Katharine Gerbner, 'Christian Slavery: Protestant Missions and Slave Conversion in the Atlantic World, 1660–1760' (PhD dissertation, Harvard University, 2013), 1–36.21. Richard Dunn, Sugar and Slaves: The Rise of the Planter Class in the English West Indies, 1624–1713 (Chapel Hill: University of North Carolina Press, 1972), 227; Tomlins, Freedom Bound, 429.22. The Barbados Department of Archives, Bridgetown [BDA] contains many examples in various deeds and wills (e.g., RB 3/1, fols. 55–6, 61; RB 3/3, fols. 122, 443): also Jennifer Morgan, Laboring Women: Reproduction and Gender in New World Slavery (Philadelphia: University of Pennsylvania Press, 2004).23. Hardinge S. G. Halsbury, The Laws of England, vol. 1 (London: Butterworth & Co., 1907), 365; William Blackstone, Commentaries on the Laws of England, Book 2 (Oxford: Clarendon Press, 1766), 389–90; Morris, Southern Slavery, 389–90.24. Thomas Clarkson, Thoughts on the Necessity of Improving the Condition of the Slaves in the British Colonies, 3rd ed. (London, 1823), 8. Tomlins has made a similar argument apparently without being aware of Clarkson's statement (Freedom Bound, 456–7, 456n174). Scholars writing about slavery in the early English colonies occasionally mention this matrilineal rule, but they rarely address its possible origin. A recent exception is William Merkel whose article only came to my attention after a late draft of the present article had been completed and I had already reached a similar conclusion. William G. Merkel, 'A Founding Father on Trial: Jefferson's Rights Talk and the Problem of Slavery During the Revolutionary Period', Rutgers Law Review 64 (2012): 595, 615.25. Richard Saller, 'Slavery and the Roman Family', in Classical Slavery, ed. M.I. Finley (London: Frank Cass, 1987), 71–2; Watson, Slave Law, 50, 62, 121.26. Taunya Lovell Banks, 'Dangerous Woman: Elizabeth Key's Freedom Suit – Subjecthood and Racialized Identity in Seventeenth Century Colonial Virginia', Akron Law Review 41 (2008): 799, 815–16; Theodore F. T. Plucknett, A Concise History of the Common Law, 2nd ed. (Rochester, NY: Lawyers Co-operative Publishing Co., 1936), 297–300; Thomas Wood, A New Institute of the Imperial or Civil Law (London, 1704), 31; Blackstone, Commentaries, 459.27. Two laws enacted in the late 1640s or early 1650s penalized male servants who impregnated female servants and the latter for having become pregnant; in addition, male and female servants were prohibited from marrying without the permission of their masters or mistresses. These stipulations were considerably expanded in two clauses of the 1661 'Act for the good governing of servants'. Slaves are not mentioned in either of these laws and Beckles errs in his interpretation. He also cites Dunn, but Dunn only refers to Antigua, not Barbados, and Hatfield relying on both sources erroneously writes that in 1640, the Barbados Assembly outlawed 'interracial sex between white men and black women'. John Jennnings, Acts and Statutes of the Island of Barbados (London, 1654), 18–9, 33; Richard Hall, Acts, Passed in the Island of Barbados (London, 1764), 36–7. Hilary McD. Beckles, Natural Rebels: A Social History of Enslaved Black Women in Barbados (London: Zed Books, 1989), 8; Dunn, Sugar and Slaves, 228; April Lee Hatfield, Atlantic Virginia: Intercolonial Relations in the Seventeenth Century (Philadelphia: University of Pennsylvania Press, 2004), 160.28. William W. Hening, The Statutes at Large; Being a Collection of all the Laws of Virginia from the First Session of the Legislature in the Year 1619, vol. 2 (Richmond: Samuel Pleasants, 1810), 170. See also Warren Billings, 'The Law of Servants and Slaves in Seventeenth-Century Virginia', The Virginia Magazine of History and Biography 99 (1991): 45–62; Tomlins, Freedom Bound, 455–9; Morgan, Laboring Women, 93–4.29. Code Noir, http://chnm.gmu.edu/revolution/d/335 (accessed April 7, 2015). See particularly article XIII.30. 'Minutes of the Barbados Council, 1654–1658', PRO 31/17/43 [1654–1656], 31/17/44 [1656–1658], TNA; cf. Morgan, Laboring Women, 79–85.31. Tomlins, Freedom Bound, 455–9, 455n171; Morris, Southern Slavery, 43. Barbados never had such a law, but Beckles has claimed, without providing evidence, that 'the slave codes of Barbados consistently held that all children at birth took the status of their mothers' (Natural Rebels, 133). April Hatfield implies that the 1662 Virginia law was adopted from the Barbados slave code, while Jenny Shaw asserts just the opposite; neither author provides any supportive evidence (Atlantic Virginia, 157; Jenny Shaw, Everyday Life in the Early English Caribbean: Irish, Africans, and the Construction of Difference [Athens: University of Georgia Press, 2013], 65). In an unusual variation on the rule of transmission, a 1664 Maryland law declared if a 'free born' white woman had a child by a slave man, the child was considered enslaved. The law was amended several times and in 1715 specification of parentage was omitted and the law merely stated that the children of slaves were slaves (Tomlins, Freedom Bound, 458–9; Morgan, Laboring Women, 72; cf. Degler, 'Slavery', 61).32. Watson, Slave Law, 64; cf. Tomlins, Freedom Bound, passim; Morris, Southern Slavery, passim.33. N. Darnell Davis, Cavaliers & Roundheads of Barbados 1650–1652 (Georgetown, British Guiana: Argosy Press, 1887); Vincent T. Harlow, A History of Barbados (Oxford: The Clarendon Press, 1926; repr., New York: Negro Universities Press, 1969), 3–13; Dunn, Sugar and Slaves, 49–51; Puckrein, Little England.34. F. G. Spurdle, Early West Indian Government (Palmerston, New Zealand: published by author, 1963); P. F. Campbell, Some Early Barbadian History (Barbados: Caribbean Graphics, 1993), 57–81; Hume Wrong, Government of the West Indies (1923; repr., New York: Negro Universities Press, 1969).35. Although authored anonymously, the book was written by William Duke, clerk of the Barbados Assembly from 1735 to 1765, when he died. The Memoirs, according to Duke, were 'extracted from ancient records, papers and accounts' that had been in the possession of 'some of the first settlers'. William Duke, Some Memoirs of the First Settlement of the Island of Barbados (London, 1741); E.M. Shilstone, 'The Lucas Manuscript Volumes in the Barbados Public Library', Journal of the Barbados Museum and Historical Society [JBMHS] 10 (1943): 16; Jerome S. Handler, A Guide to Source Materials for the Study of Barbados History, 1627–1834 (Carbondale: Southern Illinois University Press, 1971), 30.36. For example, Robert Schomburgk, The History of Barbados (London: Longman, Brown, Green and Longmans, 1848), 265–6; Jordan, White Over Black, 64; Carl and Roberta Bridenbaugh, No Peace Beyond the Line: The English in the Caribbean 1624–1690 (New York: Oxford University Press, 1972), 32; Dunn, Sugar and Slaves, 228; Beckles, History, 18; Betty Wood, The Origins of American Slavery: Freedom and Bondage in the English Colonies (New York: Hill and Wang, 1997), 40; Rugemer, 'Mastery and Race', 433.37. For example, Handler, Guide; ibid., Supplement to a Guide to Source Materials for the Study of Barbados History, 1627–1834 (Providence: Brown University, The John Carter Brown Library, 1991).38. Quoted in E.M. Shilstone, 'The Ancestry of Dr. Nathan Lucas', JBMHS 8 (1941): 107–17. For details on Lucas's life, the earliest records of the Barbados Council, and the Lucas transcriptions themselves, see ibid., 'Ancestry'; ibid., 'Lucas Manuscript Volumes'; Michael J. Chandler, A Guide to Records in Barbados (Oxford: Basil Blackwell, 1965); Handler, Guide, 123, 150–1. In discussing the 1636 resolution in this article, Shilstone's published transcription of Lucas's transcription is used.39. There is suggestive evidence that the Indians were enslaved because they objected to the harsh treatment they received from the Earl of Carlisle's representatives and their identification, through Powell, with Courteen. Jerome S. Handler, 'The Amerindian Slave Population of Barbados in the Seventeenth and Early Eighteenth Centuries', Caribbean Studies 8 (1969): 38–64; also, see references, note 1.40. Richard Ligon, A True & Exact History of the Island of Barbadoes (London, 1657), 43; Henry Whistler, 'A Journal of a Voardge [sic] from Stokes Bay', 1655, Sloane MSS. 3926, BL; 'A briefe Description of the Ilande of Barbados' [ca. 1651], quoted in V.T. Harlow, ed., Colonising Expeditions to the West Indies and Guiana (London: Hakluyt Society, 1924), 42–8; Will of John Sawyer, 25 July 1643, RB 3/1, fol. 61, BDA.41. Hall, Acts, 459–68.42. This assumption persisted to the very end of the slave period. It caused particular hardships for manumitted slaves and freeborn persons of African ancestry, regardless of how modestly their physical features reflected this ancestry. A telling example of this interchangeability of terms is that throughout his classic work, Richard Ligon uses the word 'slave' and 'Negro' synonymously. Handler, Unappropriated People, 59–65; Ligon, History.43. Duke, Memoirs, 28.44. Jennings, Acts and Statutes; Hall, Acts, 459–68. I interpret the historical record quite differently than Rugemer who, focusing on laws, maintains 'a racialized slavery' was not formalized in Barbados until 1661 when these laws became the earliest in England's colonies 'to create clear distinctions between the status of "Christian servants" and that of "Negro slaves"' ('Mastery and Race', 431, 433). My interpretation is not only that these legal distinctions occurred in earlier laws (i.e. were formalized), but also were well established in custom before any laws were enacted.45. For example, Hilary Beckles, History of Barbados (Cambridge: Cambridge University Press, 1990), 86–8.46. In England, this phrase referred to traditions or customary usages that had existed for so long that they had the validity or power of law. It seems to have been mainly applied in disputes concerning lease agreements between landowners and farming tenants. J.H. Balfour Browne, The Law of Usages and Customs (London, 1875), passim; William Woodfall, The Law of Landlord and Tenant (London, 1814), passim; James Bird, The Laws Respecting Landlords, Tenants, and Lodgers (London, 1802), 44, 85.However, in early Barbados, Virginia, and Maryland, the 'custom of the country' applied only to indentured servants who had not paid for their passages and arrived without contracts. Planters paid the costs of passage on arrival and the terms and conditions of service were covered by the 'custom of the country'. The 'custom' was initially unwritten and varied by colony; over time, also varying by colony, other features were added and were incorporated into statutory law. Tomlins, Freedom Bound, 32n28; David W. Galenson, White Servitude in Colonial America (New York: Cambridge University Press, 1981), 190, 249n23.In Barbados, the phrase is occasionally found in manuscript deeds in the 1640s, 1650s, and 1660s, without being defined, but its earliest published appearance was in the 1661 servant act, again not defined, in reference to servants who had arrived without contracts. Not until 1699 did Barbados law define Custom of the Country by specifying the amounts and types of food and clothing each servant should receive (Hall, Acts, 35–6, 41,157).47. Marcellus Rivers and Oxenbridge Foyle, England's Slavery: Or Barbados Merchandize (London, 1659); Henry Pitman, A Relation of the Great Sufferings and Strange Adventures of Henry Pitman, Chyrurgion to the Late Duke of Monmouth (London: Andrew Sowle, 1689).48. 'An Act for the Better Ordering and Governing of Negroes', 27 September 1661. CO 30/2, 16–26, TNA. I modernize the spelling and punctuation and say 'first known with a text' because in August 1644 the legislature passed 'An Act Concerning Negroes', but this law is known by title only (Hall, Acts, 460, Act 22). It was later repealed, probably in the early 1650s or, perhaps, by the 1661 law itself. 'An Act for the good governing of servants, and ordaining the rights between masters and servants', was also passed on the same day, but it was published (Hall, Acts, 35–42). I view these two laws, not primarily in racial terms, but rather as reflecting different issues of social control for two subordinate laboring populations with different legal statuses. Both populations were considered potentially dangerous to the social order, but the enslaved were considered more so at this period and this is reflected in the 1661 law itself. Of its 23 clauses, not one defines the status of the slave. Virtually the entire act treats the control of slaves and their policing, and well over half of the clauses deal with fugitives/runaways.49. The law has only one so-called protective clause dealing with the food rations of arrested runaways while jailed.50. Hall, Acts, 93–4, 105; Claire Priest, 'Creating an American Property Law: Alienability and its Limits in American History', Harvard Law Review 120 (2006): 417, 420.51. George Fox, Gospel Family-Order, Being a Short Discourse Concerning the Ordering of Families (London, 1676), 16; Handler, Unappropriated People, 29–59; ibid. and John Pohlmann, 'Slave Manumissions and Freedmen in Seventeenth-Century Barbados', William and Mary Quarterly 41 (1984): 390–408.52. Eugene Sirmans, 'The Legal Status of the Slave in South Carolina', The Journal of Southern History 28 (1962): 443, 463.53. Stephen, Slavery, 24–5.