BLACKS BEFORE THE LAW IN COLONIAL MARYLAND


Chapter II

ORIGINS
 

The first decades of Maryland's history were the most crucial years in the development of white-black relations in the proprietary colony. During those thirty years, Englishmen in Maryland enslaved blacks without benefit of specific legislative control or restraint. When slave laws were finally forthcoming, they merely sanctioned existing custom and went only a little way in the direction of prescribing future practice.

No institution springs full grown. It must undergo conception and subtle development. English colonial slavery was no exception. Its precise origins are obscure. Oscar Handlin argued that Jacobean Englishmen had no familiarity with slavery as a legal concept until English colonists in America concocted one sometime in the 1660's. [  1  ] Winthrop Jordan argued to the contrary by demonstrating that seventeenth-century Englishmen did have a precise understanding of slavery as a legal and religious concept even though they had no practical experience with it. [  2  ] Since it is this concept that provided the intellectual framework for black enslavement in the Chesapeake colonies, it is appropriate to begin with a review of it.

The chief characteristic of a slave, to a Jacobean Englishman, was the slave's total loss of liberty and the right to property. So demeaned was his condition, that he lived it for life and passed it on to his offspring. As early as 1590, the English ecclesiastical lawyer, Henry Swinburne, applied this rather explicit definition to the term "slave":

Of all men which be destitute of liberty or freedom, the slave is in greatest subjection; for a slave is that person which is in servitude or bondage to another, even against nature. [  3  ] Neither hath hee any thing of his owne, but whatsover he possesseth, all is his Lords: . . . even his children also are infected with the Leoprosie of [their] fathers bondage[.] [  4  ]
Swinburne went on to differentiate between the slave and his closest English counterpart, the villain:
A villaine howsoever he may seeme like unto a slave, yet his bondage is not so great . . . for whatsoeve[r] a bond-slave doth possess, he doth also possess it for his Lord. [  5  ]
Thus, unlike a slave, the villain could possess property.

Central to what distinguished a slave from other classes of servants in the mind of Jacobean Englishmen was the slave's non-Christian status. The Reverend Henry Smith, the great preacher at St. Clement Danes, admonished his congregations:

He which counteth his servant a slave is in an error: for there is [a] difference between beleeving servants, and infidell servants: the infidels were made slaves to the Jewes, be cause God hated them, and would humble them. . . . [  6  ]
God's hatred for the infidels resulted, in part, from the disobedience of Noah's son, Cham. Noah's punishment for Cham was to curse his descendants with perpetual bondage. [  7  ] Common belief among Jacobean Englishmen held that black Africans were the sons of Cham and accordingly were to be slaves: "and wee see to this day, that the Moores, Chams posteritie, are sold like slaves yet." [  8  ]

Not only was slavery equated with blackness, but, unlike white servitude, it was also equated with wartime captivity. Paul Baynes, the scholarly Puritan divine, commenting on the differences between servants and slaves, noted:

Now servants are either more slavish, or else more free and liberal: the first are such whose bodies are perpetually put under the power of the master, as Blackmores with us; of which kind, servants are made sometime forcibly, as in captivity. [  9  ]
The Reverend John Weems, a noted Anglican divine, also discussed this class of bondsmen calling them "servi belli," explaining further that "[They] are taken slaves in the wars." [  10  ]

Furthermore, there is evidence that English colonists coming to Maryland brought this concept of slavery with them. The propagandist George Alsop, writing from Maryland in 1659, supposedly to his father, remarked:

The Servants of the province [Maryland], which are stigmatiz'd for Slaves by the clappermouth jaws of the vulgar in England, live more like Freemen. [  11  ]
Whether Maryland servants were, in fact, nearly as well situated as Alsop implied does not matter here. What is important is the obvious assumption that servants were not as low in status as slaves, an assumption to which Alsop knew his readers would understand.

Cecil Calvery, Second Lord Baltimore, understood the implications of slavery in terms of the slave's loss of liberty and his religious status when he remarked to Governor William Stone in 1648 during the Puritan troubles:

By woefull experience, it hath bene found in divers nations that noe one thing hath soe certainly betrayed the People into true Slavery indeede, as the Deceitfull Suggestions of Subtile Matchiavilians pretending Religion, and an extraordinary care of Peoples liberty, and still possessing them with feares and Jellousies of Slavery thereby to alienate their affections from the present Government For as the Common way to Atheisme is by a pretended reformation in matters of Religion Soe in the Direct Roade to Bondage is usually found in specious pretences of Preservation of Liberty. . . . [  12  ]
From the foregoing, it is reasonable to conclude that Englishmen in the early seventeenth century understood the following about slavery. Of all men, the slave was the individual least possessed of personal liberty. He was a bondsman utterly subjected for life to the will of his master and passed his condition to his children. It is important to note, however, that there was no implication that the slave was divested of personality, or that he was himself a chattel possession. This leaves open the possibility that he was, in fact, bound to the estate and , thus, bound to whomever might be master of the estate at any given time, a condition not unlike villainage as described by Sir Edard Coke. [  13  ] Other characteristics associated with slavery included the infidelity of the enslaved along with a concurrent prohibition against enslaving Christians and the implication that slaves were captives of war. Furthermore, there was the assumption that black people were divinely decreed to be slaves.

This abstract concept of slavery differed in two respects from the chattel slavery which developed on the North American continent. First, in North America, the slave was, indeed, to be a chattel possession bound not to the land, but to a specific master. Secondly, after the enactment of special laws which would declare baptism insufficient grounds for manumission, the North American slave needed not be an infidel.

The earliest Maryland settlement under the Baltimore Charter got underway in 1634, fifteen years after the first blacks arrived in Virginia and seven years prior to the earliest recorded example of black slavery in the Old Dominion. [  14  ] The first men of African descent to come to Maryland under the Baltimore Charter arrived with the first Englishmen. Andrew White, the Jesuit missionary, brought with him amulatto named Matthias Sousa and later imported another mulatto called Francisco. The brothers Edward and Frederick Wintour, two gentlemen in the first Baltimaore group, brought with them "black John Price." [  15  ] It is difficult to say precisely what status these three men had upon landing in Maryland. Their names appear in lists among other names evidently of indentured English servants imported by the gentlemen of the first Baltimore party. Presumably, the two mulattoes and the Negro were indentured servants as well, since only the distinction of color marked them separate from the others in the record.

While Matthias Sousa, Francisco, and black John Price were probably not slaves, the term "slave" was in use in Maryland during their time. Two bills using the word came before the Provincial Assembly in March, 1638/39. The origins of these bills are unclear and the Assembly seems not to have enacted them. Nevertheless, their wording is significant. The first was an attempt to assure that "all Inhabitants of this Province being Christians (Slaves excepted[)] Shall have and enjoy all such rights immunities priviledges and free customs" as enjoyed by all English subjects. The other bill was to protect white servants who had no contracts from enduring unduly long periods of service. Using language similar to the first bill, it stated that "all persons being Christians (Slaves excepted) of the age of eighteen years or above" who had no serving papers would serve for four years. [  16  ]

The language of these two bills refers to slaves as a class of people who did not merit the freedoms and liberties of free men and who did not merit protection from unduly long periods of service. Both of these characteristics were consistent with the comteporary English understanding of what a slave was. But the bill's language is unclear as to what effect the slave's religious condition had, if any. The solution to this problem depends on how the key phrases translate into modern English. There are two possibilities for each phrase. They are as follows:
 
 

Original
 
Possible Modern English Meanings
bill (a) "all Inhabitants . . .being Christians (Slaves excepted[)] Shall have and enjoy. . . ." (1) "all inhabitants . . . are Christians (except slaves) and, therefore, they (the) Christians) shall have and enjoy. . . ."
(2) "all inhabitants . . . who are Christians (except Christian slaves) shall have and enjoy. . . ."
   
bill (b) "all persons being Christians (Slaves excepted). . . ." (1) "all persons are Christians (except slaves, who are not). . . ."
    (2) "all persons who are Christians (except Christian slaves). . . ."

Several historians have assumed that modern English alternatives (1) above apply. [  17  ] If that is the case, then the denial of liberties and denial of protection from long service was based on the slave's non-Christian status. If, however, as Jonathan Alpert more recently suggested, [  18  ] alternatives (2) apply, then the bills imply that whoever proposed them was willing to enslave Christians. That would have been a significant departure from the English concept of slavery and may explain the bill's failure to pass.

While the Assembly did not enact slavery into law until 1664, it passed various other laws prior to that time which not only bespoke a sense of race separateness, but also assumed that black slavery did exist in fact. A 1648 law prohibited the ownership or use of guns by "pagans." [  19  ] Presumably, this included non-Christian slaves. In 1661, the intent behind the 1638/39 servant bill finally passed the Assembly. But, the 1661 law specifically provided "that this Acte . . . shall not Give . . . any Benefitt to any Slaver whatsoever." [  20  ] In 1663, a law designed to provide masters with restitution for time lost by runaway slaves (who served for life anyway and, thus, could not restore runaway time with additional service) passeed the Assembly. This law provided that "English Servants that Runn away in company of Negroes or other Slaves," should serve out the slaves' lost time. [  21  ] The phrase "Negroes or other Slaves." marks this as the first Maryland law to imply an equation between blacks and slaves.

Maryland tax policy from the 1650's through the end of the century offers not only compelling evidence as to the early existence of black slavery, but also offer some insight to what it was like. A tax law of 1654 enumberated those Maryland inhabitants who were subject to the poll tax. It specified all white adult free men, all white adult servant men, and all adult Negro and Indian servants, irrespective of their sex. The rationale behind poll taxes was to raise public revenue by levies upon all members of society who were economically productive. [  22  ] In Maryland, that meant all those who went to the fields to perform manual labor. The implication of the law is that, by 1654, Negro and Indian female servants were expected to do manual field labor which was considered unbecoming to a white woman. The racist aspect of this law is further substantiated by John Hammond's contemporary observation that servant women in Maryland and Virginia "are not (as is reported) put into the ground to worke," unless they are "nasty, beastly," and not fit for domestic chores. [  23  ] Thus, by the 1650's, African-American women in Maryland were regarded as nasty and beastly and mostly suited to field labor. [  24  ]

So far, we have seen evidence that indicates only circumstantially that black slavery existed prior to 1664. But, there is evidence of specific cases of black slavery during the same period. The earliest such evidence for Maryland is a contract for a land sale of March, 1642/43. Leonard Calvert, governor and brother of the Lord Proprietor, agreed to convey three estates to John Skinner, a mariner, for which partial payment was to be either "fourteene negro men-slaves, and three women slaves, of between 15. and 26. years old able and sound in body and limbs . . ." or 24,000 pounds of tobacco. [  25  ] There is no record that Skinner ever did deliver the fourteen blacks, but, a year later, Richard Bennett acknowledge the partial payment of a £50 sterling debt owned him by Captain Thomas Cornwallis for two blacks. It is possible that the blacks mentioned in the two foregoing transactions were not servants for life, although Calvert's use of the word "slave" and Bennett's high price of £25 sterling for each of the last two individuals suggest they were. [  26  ]

The earliest unequivocal reference to lifetime service for African-Americans appears in the terms of a jointure contracted in anticipation of the marriage of Cuthbert Fenwick and Jane Moryson, August, 1649. Fenwick bound over to his fiancée several chattels, among which were three black people "and all their issue both male and female . . ." and three other blacks whose offspring were not so mentioned. [  27  ] The latter three people were evidently servants and not slaves.

Other persuasive evidence of black life servitude prior to the 1664 law exists in estate inventories. The inventory of the estate belonging to Jane Fenwick (the former Jane Moryson mentioned above) listed the following in March, 1660/61 (values in pounds tobacco):  [  [  28  ]  ]

 
Two men one boy one maide servant
6000
Two maid servants
3000
One negro man A Woeman and A Boy
7000
The obvious disparity in values for the whites and blacks suggests that the blacks had longer terms of service, presumably lifelong terms. This pattern is consistent in other inventories during the same period. A list of servants belonging to ex-Governor William Stone contains the names of thirteen English servants, each with his or her term of unfinished service (ranging from three months to ten years) carefully entered after their names. Sandwiched in among them, however, are "Philip Negro" and "Margarett Negro" with no terms of remaining service specified. [  29  ] Another inventory listed the following (values in pounds tobacco):  [  [  30  ]  ]
 
One Negro man and his wife att 
5500
One old Negro man
2000
One Negro Girl att
1800
One Man servant having Eight months to serve 
700
Two woeman servant (one [lame?])
2400
There are additional examples of higher valuations for African-Americans throughout this period. [  31  ]

Clearly, Marylanders practiced black slavery before provincial law specifically sanctioned it. It is difficult to describe the precise process by which black enslavement occurred, although it is possible to theorize on the basis of what little evidence is available. Alpert observed that the basic legal difference between English servants and black servants during the early period was the former's benefit of contract limiting their time of service. [  32  ] As we have seen, the law of 1661 limiting servants' time extended protection to those white servants without contracts, but excluded slaves. Most black servants, those imported directly from abroad, had no contracts and did not receive benefit of the law. Given the ever-growing need for labor in a staple-crop economy, it would seem likely that certain unscrupulous masters simply took advantage of their servants, indentures or none, and tried to continue their servitude as long as possible. There is evidence to support such a hypothetical trend.

In 1653, John Babtist, "a moore of Barbary," petitioned the Provincial Court for his freedom on the grounds that his original master, Simon Overzee, had not sold Babtist "for his lyfe time," as him present master intended to hold him. Although the plantiff could produce no written indenture, he did have a number of witnesses to the sale who testified on his behalf. The court decided in Babtist's favor, although it ordered him to serve another two years to bring his total time of service to seven years. [  33  ] The court clearly disapproved of the master's attempt to hold his servant indefinitely in view of clear evidence that Babtist was only a term servant.

In 1661, John Nicholls, a white man, complained to the Provincial Court that, if his daughter were not let from her apprenticeship to Thomas Cornwallis, she would become a "slave." A jury found the indenture of apprenticeship fraudulent, and the court ordered the girl free. [  34  ] The court evidently agreed that Cornwallis was unfairly exploiting the girl's servitude. In a similar case later the same year, Richard Mackane, a white indentured servant, petitioned for his freedom on the grounds that his unduly long indenture of fifteen years was "contrary to the laws of God and man," because, he asserted, its implication was "that a Christian Subject should be made a Slave." He claimed to be twenty-one years old and to have already served six and one-half years. The court's ruling was similar to its decision in the Babtist case. It declared Mackane to be nineteen years old and subject to only two more years of service. [  35  ]

In the Nicholls and Mackane cases, the Provincial Court invalidated exploitive indentures. In both cases, the petitioners expressed the fear of becoming slaves, perhaps a plight they had observed befalling African-Americans and Indians. In the Babtist case, the court prevented a master from unfairly demanding lifelong service from a black who lacked an indenture, but whose original service had not been that of a slave. Obviously, however, there were many other African-Americans at the same time who did not benefit from judical intercession to halt their enslavement. Babtist, judging from his name and origin, may not have been imported directly from the coast of Africa or from the West Indies and, in fact, may have been baptized. If this was so, then he had a cultural advantage over most Africans who came into Maryland directly via the slave trade.

Although the period before 1664 is the most critical to an understanding the origins of black chattel slavery in Maryland, it is also the least well documented. Nevertheless, certain observations can be made. Englishmen came to Maryland having no institutional experience with slavery, but possessed a theoretical concept of it. Once they were firmly established, they faced an ever-growing need for labor. To help satisfy that need, they found it to their advantage to deny the rights of Christian servants to the small numbers of non-Christian Africans available to them. This they did without legislative guidance and probably without any preconceived course of action firmly in mind.


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