Law and the Making of Slavery in Colonial Virginia
Welch, Wesley, Ethnic Studies Review
Some authorities from the antebellum period to the present have located the source of the American law of slavery in continental civil law codes and hence in Roman slave law. They have been unable or unwilling to connect the brutal system of institutionalized racial slavery that emerged in Virginia and elsewhere in the American slave kingdom with what they have perceived as an open, freedom-favoring Anglo-American legal system and have thus sought an explanation of its legal underpinnings in other jurisdictical standards. Both the absence of chattel slavery in English law and the common law's claimed bias in favor of liberty have often been cited as reasons why it is impossible that English law could be the source of such an abomination.^1
The slave law that developed in seventeenth century Virginia fits squarely within the broad English legal tradition, however. The common law represents only one aspect of that tradition, which also includes equity, ecclesiastical courts, and, most important in this context, the less formal conciliar law used to govern areas on the edge of England, such as Wales, the Marches, and Ireland. Upon study of the early decisions of the Virginia Council sitting as a judicial court, it becomes apparent that the swift, summary justice of these outlying councils was a clear and direct antecedent of the system of justice that sanctioned racial slavery in Virginia. Once the early Virginia Council had helped impose slavery, the maturing legal system could then use the common law as a tool to regulate it.
Slavery and the Law in Virginia before 1670
Prior to the 1660s the Virginia legal system oscillated between tacit recognition of the relative equality of Blacks and an avowed declaration of their inferiority. The earliest law of slavery in Virginia served to cut off routes of escape to freedom for a people already enslaved through custom. This law developed in an atmosphere of unconstrained legal authority and in response to compelling economic and cultural circumstances. Its legal underpinnings were firmly rooted in English legal and political traditions. There was no legal declaration that Africans were to be slaves, but rather a series of cases, followed by legislation, that dealt with the practical problems arising from the custom of holding Africans as slaves.^2 The effect of these laws and decisions was to make it increasingly difficult for Blacks to be anything but slaves. The paths of escape from this condition were gradually narrowed until choked off nearly altogether.
This early Virginian slave law came about to clear up ambiguities in customary practice. Custom and law recognized the existence of property interests in people. Black labor was treated differently from its white counterpart almost from its beginning in Virginia. The legal basis of white service was contract. Ordinarily white laborers had indentures that specified that their labor would be the property of their master for a particular period of time. Most Africans, however, having arrived as involuntary immigrants, were not parties to any contract limiting their term of service nor were their services regulated by the law. Moreover statutory provisions that limited the terms of service for white laborers who arrived in Virginia without indentures were not used to similarly protect Africans, who could thus be held for life.^3 The customary practice of holding black servants for a term of life began the legal process of converting people, who possessed both rights and duties, into chattel property. Not all Africans who entered Virginia in the early 1600s were held for life. Some enjoyed a measure of freedom. Some were treated as indentured servants and released when their term was over. More gained their freedom through manumission.^4 The case of Anthony Johnson, a free Black who claimed headrights for Africans he imported himself, illustrates the lack of uniformity in the status of Blacks in the early decades of their presence. …