Black Codes and Slave Codes, Colonial

By: Paul Finkelman

Source:

 Encyclopedia of African American History, 1619-1895: From the Colonial Period to the Age of Frederick Douglass

Black Codes and Slave Codes, Colonial

In the colonial and early national periods most slave jurisdictions developed elaborate systems of law for the regulation of blacks. These were generally known as slave codes, although they usually applied to free blacks as well. After independence a new genre of law, known as “black codes,” developed in a number of free states. These laws were designed to limit the growth of the state's free black population and to control the black population in those states. Ohio, which became a state in 1803, was the first to develop these laws. Indiana (1816) and Illinois (1819) adopted similar statutes.

Southern Slave Codes

In the seventeenth century the colonies regulated slaves in a rather haphazard and piecemeal way. The British settlers in North America had little or no experience with slavery in their home country, and thus slavery as an institution developed gradually. The legal system supported this development, but laws generally were passed to deal with one or two specific problems rather than to develop comprehensive regulations affecting slaves or free blacks. Thus, in the seventeenth century Virginia passed numerous individual laws to regulate the status of the blacks and to control slaves.

A 1661 statute provided that if whites and slaves ran away together, the whites, if captured, would serve extra time to make up for the lost time of the slaves, since no extra time could be added to a slave's term of service. A 1662 act held that the children of black women would serve according to the status of the mother. A 1667 act made clear that baptism would not lead to freedom. An act of 1669 declared that no one could be prosecuted for the “casuall killing of slaves” if slaves died during punishment. The law reasoned that no master would purposefully kill his slave “since it cannot be presumed that prepense malice … should induce any man to destroy his own estate.” The Virginia legislature passed various acts to facilitate the capture of runaway slaves and to prevent slave insurrections. Starting in the 1690s the legislature passed a number of laws to prevent interracial marriage. An act of 1705 prohibited slaves or free blacks from testifying against whites.

Later in 1705 Virginia passed its first slave code, “An Act Concerning Servants and Slaves.” The act dealt with indentured servants and slaves, although most of the provisions in the law were directed at indentured servants, who were mostly white. Nevertheless, the sections dealing with slavery were significant for the development of the institution. The law defined who a slave was and prohibited blacks from owning white servants. It did not prohibit interracial marriage, probably because the colonial legislature felt that it did not have the authority to regulate a religious sacrament, but the law provided fines and jail terms for those performing such marriages and for whites and blacks who married each other.

The law required servants—slave and free, black and white—to have passes if they left their masters' land. While punishing all servant women who had children out of wedlock, the law had greater penalties for white women who had children with blacks. It codified earlier statutes on the killing of slaves, the status of the children of black women, and the effect of baptism on slaves. The law prohibited slaves from owning weapons in most circumstances and set out the rules for when a slave might lawfully be killed by public authorities. While it was riddled with references to race, the law dealt primarily with status and did not, in general, seem to be concerned with race per se, but rather with people who held the status of “slave.” It presumed that some blacks would be free and that many whites would be servants. One key provision focused on race: the law prohibited blacks, slave or free, from testifying against whites in court cases. This legal disability would be a hallmark of racial codes for the next 160 years. The law also made it a crime, punishable by thirty lashes, for a free black to “lift his or her hand, in opposition against any christian, not being negro, mulatto, or Indian.”

In 1723 Virginia adopted its first law to be directed only at slaves and blacks. The law was designed to suppress insurrections and “for the better government of Negros, Mulattoes, and Indians, bond or free.” It provided savage punishments for slaves, including dismemberment, cutting off of ears, and severe whippings. The law prohibited slaves and free blacks from meeting or gathering together except with the permission of a master and then only for certain purposes, such as attending church. Slaves found off a plantation without a pass were to be whipped. The law prohibited slaves from owning weapons, except as part of the defense of the frontier, but did allow some free blacks to own them, provided they were registered with local authorities. The law prohibited private manumission except for “meritorious service,” and it prohibited free blacks from voting.

South Carolina's slave code of 1712 was barbaric and inhumane, even by the standards of the early eighteenth century. Punishments for running away included whipping, cutting off of ears, castration, branding on the cheek, and hamstringing. This and subsequent codes were designed to keep a dangerous population under control. The fear of slaves was doubtless enhanced by their race and African origin, and the slaves of South Carolina were dangerous. The state's inhuman system of bondage, oppression, and punishment made slaves especially rebellious and helped lead to the bloody Stono Rebellion of 1739.

In 1740 South Carolina passed a similar law, “An Act for the Better Ordering [of] Negroes and other Slaves in this Province,” which was designed to provide comprehensive regulation of slaves and free blacks. Fearful of slave rebellions, in the wake of the Stono Rebellion, the new law banned slaves from the “using and keeping of drums, horns, or other loud instruments, which may call together or give sine [sic] or notice to one another of their wicked designs and purposes.” Fearful that overly cruel punishment could also lead to rebellions, the law prohibited the willful murder and manslaughter of a slave, although the only punishments were relatively minor fines. Even smaller fines were to be meted out for any person who “shall wilfully cut out the tongue, put out the eye, castrate or cruelly scald, burn, or deprive any slave of any limb or member.” This list of punishments reveals the barbaric nature of punishment at the time as much as it suggests the legislature's desire to change behavior. The law allowed punishments by “whipping or beating with a horsewhip, cow-skin, switch or small stick, or by putting irons on, or confining or imprisoning” a slave. The law also prohibited teaching any slave to read or write or allowing those already literate “to be employed in writing.”

Other colonies regulated slaves and blacks in similar ways. Maryland's comprehensive slave code of 1715 noted that “many People have neglected to Baptize their Negroes, or suffer them to be Baptized, on a vain apprehension that Negroes by receiving the Sacrament of Baptism are manumitted and set Free.” To address this concern, the code assured masters that “No Negroe or Negroes by receiving the Holy Sacrament of Baptism is hereby manumitted or set free, nor hath any Right or Title to Freedom or Manumission, more than he or they had before, any Law, Usage or Custom to the Contrary notwithstanding.” The law provided penalties for both parents of a mixed-race child and fined anyone performing a mixed-race marriage. In 1717 the colony made it a felony to perform such marriages. That same year the Maryland legislature determined that “it may be of very Dangerous Consequences to admit and allow as Evidences” the testimony of any black, slave or free.

After the American Revolution southern states continued to remove some of the harsher aspects of punishment from their codes. In 1791, for example, North Carolina made murder of a slave a crime. At the same time, the southern states increasingly tied slaves and free blacks together in their regulations. In 1782 Virginia liberalized its manumission laws, but in 1806 the state began to require that recently emancipated blacks leave the state. The Virginia slave code, like that of other states, reflected an increasing hostility toward free blacks. In the 1820s South Carolina prohibited free blacks from entering the state, and other southern states did the same thing in the 1830s. Southern states also increasingly limited the rights of free blacks, especially in the wake of two failed slave rebellions, the Gabriel conspiracy in Virginia in 1800 and the Denmark Vesey conspiracy, discovered in 1822 in South Carolina. The latter was particularly frightening to whites because Vesey was a free black.

Northern Regulation of Blacks

The northern colonies also regulated free blacks along with slaves. In 1703–1704 Rhode Island prohibited free blacks and slaves from being out after 9 P.M. without a lawful excuse. Offenders were to be whipped “at ye Publick whipping post in s[ai]d. Town not Exceeding fifteen stripes upon their Naked back.” Although known for its humane statutes, in 1697 Pennsylvania passed legislation to create special penalties regarding rape; blacks could be sentenced to death for raping whites and face castration for attempted rape. Whites who committed similar offenses would be fined, whipped, or imprisoned for a year for a first offense and for life for a second offense.

In 1700 and again in 1706 Pennsylvania adopted similar statutes to regulate the trial and punishment of blacks. Both laws dealt with the “manner of trial and punishment of negroes committing murder, manslaughter, buggery, burglary, rapes, attempts of rapes, and other high and heinous enormities and capital offenses.” Both laws also provided a death sentence for any black convicted of “rape or ravishment” of a white woman and for murder, buggery, or burglary. Rape, buggery, and burglary were not capital offenses for whites in Pennsylvania. Indeed, the disparity of punishment is striking. While a black man would be executed for raping a white woman, a white man would be whipped with thirty-one lashes and sentenced to seven years at hard labor. A second offense resulted in castration and branding with the letter R. For the lesser offenses blacks were punished by castration, whipping, branding, and deportation. All of these punishments were more severe for blacks, slave or free, than for whites who committed the same crimes. Both the 1700 and 1706 acts also prohibited blacks from carrying guns and other weapons and from congregating in groups larger than four.

Colonial Massachusetts also presumed that blacks were a dangerous class and tried to regulate them accordingly. In 1693 the colony provided special penalties for people who purchased goods or provisions that “appear … to have been stol'n” from “any Indian servant, or negro or mulatto servant, or slave.” Indians and blacks caught selling such goods were to be “whipped openly, not exceeding twenty lashes.” No similar laws or penalties seem to have been used to control white servants.

In 1703 the fear of black crime continued to haunt Massachusetts. A law directed at “Disorders in the Night” began with this telling preamble: “Whereas great disorders, insolencies and burglaries are oftimes raised and committed in the night time by Indian, negro and molattos servants and slaves.” Clearly, colonial government saw race, not status, as the danger. There were far more white servants than nonwhite servants in Massachusetts at this time, but they were not singled out for special legislation. The act placed a 9 P.M. curfew on all nonwhite servants and slaves and allowed for the summary arrest and committal of any found off the premises of their masters who were unable to “give a good and satisfactory account of their business.” Because authorities in Massachusetts assumed that all blacks were either slaves or servants, this law created a presumption of illegal behavior for any black found on the streets after 9 P.M.

Other northern colonies adopted similar laws. New York prohibited black testimony, while New Jersey and Pennsylvania lumped free blacks together with slaves in regulating “runaways.” Connecticut had a curfew for free blacks. Rhode Island allowed free blacks to be bound out as indentured servants “for keeping disorderly taverns,” while Pennsylvania and Delaware bound out the children of poor blacks. In Pennsylvania and Delaware, which was more northern than southern at this time, a free black adult could be bound into servitude for “loiter[ing] or mispend[ind] his or her Time.” The crime of loitering did not carry such a stiff penalty if the perpetrator was white.

During and after the Revolution the northern states either ended slavery outright, as did Massachusetts in its 1780 constitution, or took steps to end the institution through gradual abolition acts, as in Pennsylvania (1780) and New York (1799). In these states the need to regulate blacks gradually diminished. Some states, including Massachusetts, New York, and Pennsylvania, gave free blacks equal political rights. Pennsylvania's gradual abolition act eliminated all distinctions in criminal law between whites and blacks, including slaves, but did not allow slaves to testify against free people. The statute stated:

"That the offences and crimes of Negroes and Mulattoes, as well slaves and servants as freemen, shall be enquired of, adjudged, corrected and punished, in like manner as the offences and crimes of the other inhabitants of this state are and shall be enquired of, adjudged, corrected and punished, and not otherwise, except that a slave shall not be admitted to bear witness against a freeman."

Most of the other northern states gave free blacks full legal protections as well, including allowing them to testify against whites.

At the time of the Revolution free blacks could vote on the same terms as whites in all of the northern states except Connecticut and Rhode Island. However, the rise of Jeffersonian and Jacksonian democracy undermined these rights. By the time of the War of 1812, New Jersey had stripped blacks of the franchise. In 1821 the New York Constitutional Convention gave universal suffrage to white men by eliminating property requirements for voting. The leaders of the convention, who would soon emerge as the core of the state's Jacksonian movement, wanted to take the vote away from all blacks. Federalists in the state, especially the famed jurist James Kent, resisted this move, and in a compromise the state agreed to allow blacks to vote only if they owned property, as in the past. In the 1830s the Jacksonians in Pennsylvania granted full suffrage to whites while completely disenfranchising blacks. By the 1830s blacks in New England and the mid-Atlantic states were almost entirely free from bondage and from most formal racial regulations, but they lacked equal political rights, except in Maine, Massachusetts, Vermont, and New Hampshire.

Midwestern Black Codes

The most significant innovation in racial regulation came in the Midwest in the first two decades of the nineteenth century. The territories and states of the lower Midwest began with a presumptive ban on slavery stemming from the Northwest Ordinance of 1787, article 6 of which declared:

"There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted: provided always, that any person escaping into the same, from whom labour or service is lawfully claimed in any one of the original states, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her labour or service as aforesaid."

The ordinance did not contain any direction on how it was to be implemented. At the time of its passage there were hundreds of slaves in what later became the states of Indiana and Illinois. Furthermore, many migrants from Virginia and Kentucky, some of them slave owners, were anxious to move into the region.

When it became a state in 1803, Ohio had few blacks and virtually no slaves. The state's constitution prohibited slavery and denied free blacks the right to vote. In 1804 and again in 1807 the legislature passed the first of a number of statutes known as “black laws,” which provided an elaborate registration system for blacks entering the state. Blacks coming into Ohio had to provide proof of their freedom, register with local officials, and find two sureties who would sign bonds for five hundred dollars to guarantee that they would not become a burden on the state. These laws banned blacks from testifying in court against whites and denied them access to any sort of public assistance. When the legislature began to create a statewide system of public education in the 1830s, blacks found themselves excluded from these tax-supported schools.

Despite the registration laws, the black population of Ohio grew dramatically in this period. There were 337 blacks in Ohio in 1800, 1,899 in 1810, 4,723 in 1820, and 9,568 in 1830. Most blacks entering the state did not actually register under these laws, and there is no record of any court's ever forcing a black to leave the state for failing to register. While they were denied access to public schools, Ohio blacks were able to create their own schools and other institutions. Unlike the situation under the slave codes and black codes of the South, African Americans in Ohio were free to own property, enter a profession, and travel and move about without a pass system. By the 1850s there was at least one black attorney in Ohio, John Mercer Langston, and although his fellow African Americans were denied the franchise, his white neighbors would elect him to public office. The greatest threat to blacks from the state came from their inability to testify against whites and the fear that the registration laws might be enforced against them. Ohio repealed most of its black laws in 1849, although blacks were denied suffrage and the right to serve on juries until after the Civil War.

Indiana and Illinois developed laws similar to those in Ohio, and they allowed for long-term indenture of blacks brought into those territories. This created a system of quasi slavery in both places. Indiana effectively eliminated this system after statehood, in 1816, and by 1830 there were no blacks held in bondage in the state. Illinois, on the other hand, maintained bondage until the 1840s. As in Ohio, the registration laws in Indiana and Illinois were not very effective at slowing the growth of the black population. Both as territories and states, Indiana and Illinois remained beacons for free blacks and fugitive slaves. The Indiana black population grew from about 400 in 1800 (including over 250 slaves) to 1,230 by 1820 and 3,329 by 1830. Illinois had similar laws and regulations, and they were equally ineffective. In 1820 Illinois had 457 free blacks; by 1830 this population exceeded 1,600. These states maintained their black codes until the Civil War, strengthening them in the 1850s and during the war.

Despite the black codes, free blacks and fugitive slaves came to the lower Midwest in the first three decades of the nineteenth century because the region provided greater freedom and opportunity than did the Slave South. The upper Midwest never adopted such restrictions.

See also Baptism; Crime and Punishment; Denmark Vesey Conspiracy; Discrimination; Emancipation, Gradual; Free African Americans to 1828; Fugitive Slaves; Gabriel Conspiracy; Indentured Servitude; Jackson, Andrew, and African Americans; Jefferson, Thomas, on African Americans and Slavery; Laws and Legislation; Literacy; Marriage, Mixed; Political Participation; Resistance; Riots and Rebellions; Slavery: Lower South; Slavery: Mid-Atlantic; Slavery: Northeast; Slavery: Upper South; Stono Rebellion; Violence against African Americans; and Voting Rights.

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