Chapter I
Dissertation Prospectus
In the past four decades, the historical profession has developed a special interest in ethnic minority groups and their place in United States history. The profession has devoted the largest share of this special interest to the African-Americans. It has done so for two reasons. First, since African-Americans comprise the largest minority group in American society, sheer numbers recommend them for historical inquiry. Second, and probably more important, the turmoil caused by bitter race relations in modern America has prompted historians to search for the historical sources of race antipathy. On this latter point, authorities agree that slavery, with all its implications, is at the root of the problem. So important do modern historians consider slavery that Edmund S. Morgan called it the "central paradox" in American history. [ 1 ]
The historical literature on American slavery leans heavily toward the nineteenth century, particularly the ante-bellum South. Kenneth Stampp's Peculiar Institution (1956) and Stanley Elkins' Slavery (1959), two of the most influential interpretations of slavery written in the mid-twentieth century were confined to the pre-Civil War South. Likewise, many of the more recent revisionist studies, such as George P. Rawick's From Sunup to Sundown (1972) and John Blassingame's The Slave Community (1972), concentrate on southern slavery before the Civil War. It is understandable that historians are drawn to the nineteenth century when writing about slavery because of the abundance of source material available to them. Plantation records, private letter and diaries, slave narratives, and recorded oral accounts given by ex-slaves in the early twentieth century make possible a remarkably complete picture of the peculiar institution in its last several decades. When historians deal with the pre-Revoluntionary period, however, they find the picture more obscure due to the lack of such sources.
The only extensive body of documentary evidence for slavery and race relations in the colonial period is statutory and case law. The importance of statutory law was recognized in the mid-nineteenth century with the publication of John Codman Hurd's Law of Freedom and Bondage in the United States (1858). Early students of slavery in America, such as J. C. Ballagh in his History of Slavery in Virginia (1902), used slave statutes as the basis of their discussions. The pivotal importance of statutes has continued into the second half if the twentieth century for example Winthrop Jordan's White over Black (1968). Lately, however, with more colonial court records available in published form, historians have become more aware of case law's value in discovering more about the origins of slavery in colonies where English common law traditions were strong.
Several post 1970 studies of seventeenth and eighteenth century slavery highlight the significance of case law. Warren M. Billings used two early slave freedom suits in Virginia to suggest that the process of dehumanization of blacks that Winthrop Jordan called an "unthinking decision" in White over Black may have, in fact, been a very deliberate and thoughtful decision. Billings closes his short study by urging historians to take more notice of seventeenth century slave law suits.[ 2 ] C. Ashley Ellefson traced several decades of litigation involving one hapless free black in colonial Maryland to show the sorts of problems that could befall free blacks in a colonial planting society. [ 3 ]
Although slavery was not economically important as a source of labor in early Massachusetts, slavery did exist there. Historians who have looked at court litigaion involving blacks in the Bay Colony have reaped ample rewards for their efforts. Lawrence W. Towner analysed data from servant and slave court petitions to illustrate the various types of master-servant conflict that were possible under legal codes that permitted indentured servitude and chattel slavery. [ 4 ] Robert C. Twombly and Robert H. Moore delved deeply into court cases to show that slave statutes themselves convey a false image of race relations in colonial Massachusetts society. While the laws of Massachuetts offer ample evidence of institutional race prejudice, Twombly and Moore demonstrate that in court litigations blacks received treatment on a par with whites. The two authors argue that this paradox shows that, while race prejudice existed in colonial Massachusetts, it did not overcome a loftier regard for due process. They credited this loftier regard for justice to qualities inherent in the Puritan personality, qualities which were, therefore, by implication, absent in the personalities of non-Puritan colonists elsewhere in English America. [ 5 ] Two more articles, one by Fr. William O'Brien, the other by Arthur Zilversmit, debate the significance of Quok Walkter's 1783 freedom suite in ending slavery in Massachusetts. [ 6 ]
As sources for the study of colonial slavery and race relations, statutory and case law, of course, reflect the masters' points of view toward slavery and, therefore, must be used with the utmost discretion. Since there is so little else in the way of documentary sources for the subject, however, statutory and case law must be used. The real problem is to use them to their fullest potential. Law can be both a prescription for social behavior and a description of behavior already established. George Haskins, in discussing law in colonial society, saw it "both as an anchor to accepted tradition and also a vehicle for change." [ 7 ]
I propose to write a disseration on the condition of African-Americans, free and slave, in colonial Maryland as it is reflected in statutory and case law. I wrote my master's thesis on the blacks and the law in seventeenth century Maryland and am confident that my major findings warrant an extension of the project to include all of the colonial period. By the end of the seventeenth century, slavery was a well defined legal and social institution in Maryland. Certain basic trends in the nature of race relations were clearly discernable by then. How far these trends continued into the eighteenth century and what changes may have occurred would be appropriate questions to ask. For example, by the end of the seventeenth century, statutory law in Maryland had clearly established the presumption that all blacks were slaves. Yet, the Provincial Court recognized exceptions in cases where blacks could prove immunity to lifelong servitude on the basis of indenture. I would like to determine if this trend continued into the eighteenth century or if there was a significant change. Also, while statutory law did not recognize the existence of free blacks in the seventeenth century, there were free blacks in Maryland, many of whom give all appearances of having been fully-established members of the planting society. Did free blacks continue on an equal social basis with whites in the eighteenth century or was there perhaps a decline in status for them? I also found that seventeenth century blacks received the same dispensation of justice in Catholic and Anglican Maryland that Twombly amd Moore feel was so unique to Puritan Massachusetts. Preliminary research into the dissertation indicates that, while certain statutes sanctioned the denial of due process to African-Americans in the eighteenth century, the courts continued to treat them equal to whites, although there is some indication that blacks may have been prosecuted for crime out of proportion to their numbers. Finally, by the end of the seventeenth century, with the slave population growing faster than the white, I detected compelling evidence of the beginning of more repressive public policies toward the personal freedoms of blacks and a concurrent trend among slaves toward rebelliousness. Preliminary research indicates that these trends continued in the eighteenth century and climaxed in a wave of slave conspiracy hysteria in the early 1740's. All of these points warrant further investigation.
Most historians accept the thesis that tendencies toward race separateness and the presumed inferiority of blacks date from the beginning of the colonial period. Therefore, other basic questions to be asked in the proposed dissertation will test these assumptions against evidence drawn from statutory and case law. First, how did white Marylanders seek to define the Negro's status in law, and why did they choose certain legal definitions over other possible ones? Second, how did the courts interpret the laws when specific cases came before them, and for one reason or another, made no provision? The answers to these questions promise to help us understand better than we do the legal mechanisms of race relations in early America.
The proposed dissertation will also be a study in institutional evolution. If Englishmen transplanted to North America indeed had scant legal precedents for slavery, as most authorities believe, then they had to devise a legal code for slavery that may have been totally unique to English law. On the other hand, these New World Englishmen may have used some common law features and infused them with a deceptive dose of New World expediency. The latter possibility raises new questions. Can traces of English common law be found in colonial Maryland slave law? Is there evidence of departures from the common law? How workable did the new slave laws prove when subjected to litigation? Did the courts have to depart from law and decide cases on the basis of a rough equity? Did court decisions build up a body of precedent useful in deciding later cases? In short, how did an American legal institution develop in response to a new set of circumstances?
There are four previous studies that attempt to deal with slavery and free blacks in colonial Maryland in some depth. None of them is adequate. Jeffrey R. Brackett's The Negro in Maryland: A Study of the Institution of Slavery (1889) [ 8 ] and James Martin Wright's The Free Negro in Maryland 1634-1860 (1921) [ 9 ] are old and outdated. Since their publication, much new source material has come to light. Jonathan Alpert's more recent article "The Origins of Slavery in the United States -- The Maryland Precedent" (1970) [ 10 ] covers the period 1634-1715 and is limited in source material to published records. Raphael Cassimere's dissertation "The Origins and Early Development of Slavery in Maryland, 1633 to 1715" (1971) [ 11 ] is also limited to published sources and is otherwise superficial. Both of the latter works ignore half of the Maryland Provincial Court records and nearly all of the county court records for the periods they cover. The bulk of this primary material exists only in manuscript. It is this heretofore unused manuscript material that will provide the basis for the original research for my dissertation.
The primary sources I propose to use in the dissertation can be itemized in summary form. All of the proceedings and enactments of the Governor and Council are published in the Archives of Maryland. Proceedings and judgments of the Provincial Court are published through 1684 in the Archives and exist after that in seventy-one manuscript libers at the Maryland State Archives in Annapolis. County court records, with only a few exceptions, exist only in manuscript at the State Archives. These records vary in completeness from one county to another. Some of the counties have virtually complete runs for the entire colonial period, some have fragmentary runs, some have none at all. Taken together, however, the county court records are abundant and total 370 manuscript libers. The Maryland Court of Chancery records, which number eight volumes for the colonial period, contain cases involving African-Americans and will also be used. Other records that do not specifically relate to statutory or case law may nevertheless be important. In such cases, these records will be used selectively for supplemental material. For example, if a case should turn up in the Provincial Court records involving a slave's petitioning for his freedom on the basis of the terms of a will probated twenty years earlier, it would seem appropriate to find that will if it still exists. The larger share of the primary material for this dissertation has never been tapped for a study of slavery and race relations in colonial Maryland. My familiarity with the seventeenth century portion of it and my sampling of the eighteenth century portion give me confidence that it will provide the basis for a significant study.
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