Published online by Cambridge University Press: 25 June 2015
South Carolina was a staggeringly weak polity from its founding in 1670 until the 1730s. Nevertheless, in that time, and while facing significant opposition from powerful indigenous neighbors, the colony constructed a robust plantation system that boasted the highest slave-to-freeman ratio in mainland North America. Taking this fact as a point of departure, I examine the early management of unfree labor in South Carolina as an exemplary moment of settler-colonial state formation. Departing from the treatment of state formation as a process of centralizing “legitimate violence,” I investigate how the colonial state, and in particular the Commons House of Assembly, asserted an exclusive claim to authority by monopolizing the question of legitimacy itself. In managing unfree laborers, the colonial state extended its authority over supposedly private relations between master and slave and increasingly recast slavery in racial terms. This recasting of racial slavery rested, I argue, on a distinction, pervasive throughout English North America, which divided the world into spheres of savagery and civility. Beneath the racial reordering of colonial life, the institution of slavery was rooted in the same ideological distinction by which the colonial state's claims to authority were justified, with the putative “savagery” of the slave or of the Indian being counterpoised to the supposed civility of English settlers. This article contributes to the literatures on Atlantic slavery and American colonial history, and invites comparison with accounts of state formation and settler colonialism beyond Anglo-America.
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14 I borrow Foucault, Michel's definition of the “juridical subject” as “the possessor, among other rights, of the right to exist.” Discipline & Punish: The Birth of the Prison, Sheridan, Alan, trans. (New York: Vintage, 1977), 13Google Scholar.
16 In restricting itself to the slave's status before the law, the term “civic death” avoids the problem of Orlando Patterson's influential notion of “social death,” which risks obscuring the autonomous social lives slaves fashioned within the plantation system. Slavery and Social Death: A Comparative Study (Cambridge: Harvard University Press, 1982), 38–51Google Scholar; Brown, Vincent, “Social Death and Political Life in the Study of Slavery,” American Historical Review 114 (2009): 1231–49Google Scholar. For accounts of the cultural lives of slaves in colonial America, see Morgan, Slave Counterpoint; Olwell, Masters; Thornton, Africa and Africans, 152–271; Wood, Black Majority.
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18 Although the colonists acknowledged that they were subject to the sovereignty of the Lords Proprietors, and later of the Crown, they frequently ignored their supposedly sovereign commands. Nevertheless, they continued to envision themselves as loyal British subjects, aping the fashions of “English” society, actively seeking royal government in 1719, and frequently invoking the king's sovereignty. PROSC, 7: 271–99; Olwell, Masters, 1–6, 38–42.
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25 Inconsistent understandings of the terms “slave” and “servant” led the Proprietors to clarify that headrights for each imported servant also applied to slaves. Shaftesbury Papers, 164; Tomlins, Christopher L., Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580–1865 (Cambridge: Cambridge University Press, 2010), 432–33Google Scholar; Handlin, Oscar and Handlin, Mary F., “Origins of the Southern Labor System,” William and Mary Quarterly, 3d ser., 7 (1950): 199–222, 203–8Google Scholar; Wood, Black Majority, 14–16.
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28 PROSC, 3: 81–83.
29 “Fundamental Constitutions of Carolina,” §101; Sirmans “Legal Status,” 463–64.
31 Armitage, “John Locke,” 609.
32 Locke, Two Treatises, II §§24, 180.
33 Slavery was not heritable for Locke, and his theory prohibited the enslavement of noncombatants; ibid., II §§182–83.
37 Locke, Two Treatises, II §§155, 202. For ambiguity in Locke's use of these terms individually, see ibid., §§87, 89, 125–26, 152.
38 Ibid., II §202. Although differing over what would render a use of force “authoritative,” Locke's model of force-power-authority is similar to Weber's distinction among “power” (Macht), “domination” or “authority” (Herrschaft), which he took to be a special case of “power,” and “legitimacy.” Economy and Society, 1: 53, 212–16, 2: 941–42, 946. Locke's notion of “power” is also akin to Foucault's “sovereign power,” not least in relations of slavery, where for Foucault the appropriation of bodies was too violent to be a form of disciplinary power. Discipline & Punish, 137.
39 On the roots of ideology in material life, see Marx, Karl and Engels, Frederick, The German Ideology (New York: International Publishers, 1947)Google Scholar, esp. 1–43. I borrow my understanding of moral community from Durkheim, Emile, The Elementary Forms of Religious Life, Fields, Karen E., trans. (New York: Free Press, 1995), 209–11Google Scholar. Colonists were not the only people to form authoritative moral communities in colonial America. As Natalie Zemon Davis has shown, slaves also fashioned autonomous and morally authoritative communities exemplified by mechanisms of self-policing on plantations. “Judges, Masters, Diviners: Slaves' Experience of Criminal Justice in Colonial Suriname,” Law and History Review 29 (2011): 925–84Google Scholar.
40 On the patriarchal (and later paternalistic) character of colonial American slavery, see Brown, Kathleen M., Good Wives, Nasty Wenches, & Anxious Patriarchs: Gender, Race and Power in Colonial Virginia (Chapel Hill: University of North Carolina Press, 1996), 319–66Google Scholar; Morgan, Slave Counterpoint, 261–300.
41 Locke, Two Treatises, II §§71, 86, 172 (quoted), 174. Patriarchy, as Kathleen Brown notes, remained a highly contested form of authority in early America. Good Wives, 4–5, passim.
42 “Fundamental Constitutions of Carolina,” §98.
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44 Between a quarter and a third of the colony's earliest inhabitants were of African descent, all or most of whom were unfree laborers. Wood, Black Majority, 20–25.
45 Ramsey, William, “‘All and Singular the Slaves': A Demographic Profile of Indian Slavery in Colonial South Carolina,” in Greene, Jack P., Brana-Shute, Rosemary, and Sparks, Randy J., eds., Money Trade and Power: The Evolution of South Carolina's Plantation Society (Columbia: University of South Carolina Press, 2001), 166–86Google Scholar; Smith, Abbot E., Colonists in Bondage: White Servitude and Convict Labor in America, 1607–1776 (Chapel Hill: University of North Carolina, 1947), 57, 331–32Google Scholar; Gallay, Alan, The Indian Slave Trade: The Rise of the English Empire in the American South, 1670–1717 (London: Yale University Press, 2002), 48–50Google Scholar. Early prohibitions on Indian enslavement were ignored and later superseded by a licensed trade in Indian slaves. Shaftesbury Papers, 367; PROSC, 2: 59–60.
46 Wood, Black Majority, 35–62. For a critique of the claim that settlers turned to African slaves because of their skill in rice cultivation, see Eltis, David, Morgan, Philip, and Richardson, David, “Agency and Diaspora in Atlantic History: Reassessing the African Contribution to Rice Cultivation in the Americas,” American Historical Review 112 (2007): 1329–58CrossRefGoogle Scholar. On the shift away from white servant labor in Anglo-America, see Eltis, African Slavery, 45–54.
47 Hadden, Slave Patrols, 8–9; Little, Thomas J., “The South Carolina Slave Laws Reconsidered, 1670–1700,” South Carolina Historical Magazine 94, 2 (1993): 86–101Google Scholar, 97; Rugemer, Edward B., “The Development of Mastery and Race in the Comprehensive Slave Codes of the Greater Caribbean during the Seventeenth Century,” William and Mary Quarterly, 3d ser., 70 (2013): 429–58Google Scholar, 452–53; Sirmans “Legal Status,” 464–65. Bradley Nicholson argues that colonial slave codes borrowed features of English laws against vagabondage. “Legal Borrowing and the Origins of Slave Law in the British Colonies,” American Journal of Legal History 38 (1994): 38–54Google Scholar.
48 SSC, 7: 343–44. This act was disallowed by the Lords Proprietors only to be reenacted by the Commons House in 1693 and 1695. Ibid., 2: 78, 96; Little, “Slave Laws,” 97 n33, 99 n43.
49 Sirmans “Legal Status,” 465; Wood, Black Majority, 51–52 n63.
50 Quoted in Sirmans, “Legal Status,” 466. See also Roper, L. H., “The 1701 ‘Act for the better ordering of Slaves’: Reconsidering the History of Slavery in Proprietary South Carolina,” William and Mary Quarterly, 3d ser., 64 (2007), 395–418Google Scholar, 408 (hereafter “1701 Act”); SSC, 7: 352, 371, 385.
51 Tomlins, Freedom Bound, 439–40 n122; Sirmans, “Legal Status,” 466.
53 Watson, Alan sees this public law dimension as peculiar to English colonial slavery. Slave Law in the Americas (Athens: University of Georgia Press, 1989), 66Google Scholar.
54 Cf. Sirmans, “Legal Status,” 471.
55 SSC, 7: 347; 1701 Act, 414–15; CH, 1702: 99–101.
56 Blackburn, New World Slavery, 317; Breen, Puritans and Adventurers, 136–39; Little, “Slave Laws,” 89–90, 95; Morgan, American Slavery, 250–70.
57 SSC, 7: 345–46.
60 In a further extension of state power over the plantation, after 1722 state-appointed constables and slave patrols took over the master's prior responsibility for searching “negro [slave] houses” for weapons. SSC, 7: 372–73.
62 CH, 1697: 20. Reverend Francis LeJau expressed horror at witnessing severe punishments meted out to slaves. FKlingberg, rank, ed., The Carolina Chronicle of Francis LeJau (Berkeley: University of California Press, 1956)Google Scholar, 55, 108, 116, 130.
63 CH, 1697: 20; 1734–1735: 82–83; 1701 Act, 410–11; SSC, 7: 359–60.
64 1701 Act, 408, 415; SSC, 3: 459–60, 7: 352–54.
65 Davis, Slavery and Progress, 12.
66 Jordan, White over Black, 588; Higginbotham, Matter of Color, 7–8; Tomlins, Freedom Bound, 417 n59. Watson argues that the close association between legal institutions and rules and the “ethos” of a society is peculiar to English colonial slavery. Slave Law, xii, 64–65.
67 PROSC, 5: 203–4.
68 SSC, 7: 343–47; Jordan, White over Black, 95; Rugemer, “Mastery and Race,” 450, 452.
69 Degler, “Slavery”; Jordan, White over Black, 583–85; Morgan, American Slavery, 315.
70 Brubaker, Rogers and Cooper, Frederick, “Beyond ‘Identity’,” Theory and Society 29 (2000): 1–47Google Scholar 5. Historians of race and gender in colonial America are especially attuned to the intersecting histories of race, class, gender, and ethnicity. Brown, Good Wives, 4, 109–16; Morgan, Jennifer L., Laboring Women: Reproduction and Gender in New World Slavery (Philadelphia: University of Pennsylvania Press, 2004), 5–6Google Scholar. On intersectionality, see Crenshaw, Kimberle, “Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color,” Stanford Law Review 43 (1991): 1241–99Google Scholar; Collins, Patricia Hill, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment (London: Routledge, 2000)Google Scholar.
71 Morgan, Laboring Women, 12–49; Jordan, White over Black, 3–43.
72 PROSC, 8: 66–67. There were approximately twelve thousand slaves in the colony in 1720, with a white population of between 5,220 and 6,400. Ibid., 7: 233–34, 265; 9: 23.
73 SSC, 3: 14–20; Jervey, Theo D., “The White Indentured Servants of South Carolina,” South Carolina Historical and Genealogical Magazine 12 (1911): 163–71Google Scholar, 167; Ramsey, “All and Singular,” 173–80; Smith, Colonists in Bondage, 331. Upward of fifty-one thousand Indians were enslaved in the Carolina trade before the Yamasee War, most being exported to other English colonies. In the 1720s, South Carolina imposed an import duty on Indian slaves between two and five times the duty applied to African slaves. Gallay, Indian Slave Trade, 294–99, 338–39; PROSC, 15: 92; 18: 19.
75 SSC, 2: 671; 3: 77. Although colonists did not subdivide the category of “slaves” by ancestry or “race” in census reports after 1708, “better ordering” statutes did use terms like “mulatto,” “mustee,” or “mustizo” to refer to slaves whose ancestors included some combination of Europeans, Africans, and Native Americans. Ibid., 7: 371.
76 For a similar interpretation, see Ramsey, “All and Singular,” 172. This conflation of phenotype and material or status location was a pervasive feature of colonial societies. Fanon, Frantz, The Wretched of the Earth, Philcox, Richard, trans. (New York: Grove Press, 2004), 5Google Scholar.
77 For the language of “unthinking decision,” see Jordan, White over Black, 44–98.
78 Ramsey, “All and Singular,” 166–67; Higginbotham, Matter of Color, 169.
79 SSC, 2: 647; Blackburn, New World Slavery, 316–17; Jervey, “Indentured Servants,” 166.
80 SSC, 3: 17.
81 Ibid., 3: 20. An unmarried woman who had a child in South Carolina could be condemned to four years of servitude if she refused to name the child's father and was unable to pay a fine. Trott, Nicholas, The Laws of the Province of South-Carolina, 2 vols. (Charles-Town, 1736), 1: 97–98Google Scholar. Similar laws in Virginia were disproportionately applied to white servant women, revealing the gendered as well as the racial components of this legislation. Brown, Good Wives, 187–211, esp. 199–200; Goetz, Rebecca A., The Baptism of Early Virginia: How Christianity Created Race (Baltimore: Johns Hopkins University Press, 2012), 61–85Google Scholar.
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84 Ibid., 69–106; Brown, Good Wives, 128–35. Sexual relations between whites and free Indians may have been excluded from this act because of their importance to the Indian trade. Moore, Alexander, ed., Nairne's Muskhogean Journals: The 1708 Expedition to the Mississippi River (Jackson: University Press of Mississippi, 1988), 60–61Google Scholar.
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86 Even Irish rebels served out “penal contracts” in the colonies. Blackburn, New World Slavery, 317.
88 Ibid., 8–9. That slaves who were alleged to have broken the law were subject to trials in special slave courts suggests that some minimum of legal rights was afforded to slaves. For example, the 1740 “better ordering” statute put the point clearly, noting, “Natural justice forbids that any person, of whatever condition soever, should be condemned unheard.” Nevertheless, this was hardly akin to a freeman's justice, with matters brought before the slave courts being “determine[d] … in the most summary and expeditious manner.” SSC, 7: 400–1, 400. For a study of the functioning of slave courts in colonial North Carolina, which were modeled on those of South Carolina, see: Watson, Alan D., “North Carolina Slave Courts, 1715–1785,” North Carolina Historical Review, 60 (1983): 24–36Google Scholar, esp. 26.
89 Ibid., 28–29. Before 1735, certain restrictions were placed on how the court might interpret the evidence of slaves. While the evidence of a single slave could be used to convict a fellow slave of a petty crime where the court found that evidence convincing, a slave could only be convicted of a capital crime by their own confession, by “the oath of christian evidence,” or “by the plain and positive evidence of two negroes or slaves, so circumstantiated as that there shall not be sufficient reason to doubt the truth thereof.” SSC, 7: 356–57; cf. ibid., 7: 389.
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92 SSC, 7: 384, 396. Restrictions on manumission marked an obvious intrusion into the master-slave relationship by constraining the master's capacity to extinguish his claim to property over the slave. Higginbotham, Matter of Color, 47.
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95 The Commons House excluded non-white free men from the franchise in 1716, an act that was confirmed by the Crown in 1721. SSC, 2: 688, 691; 3: 3–4, 50–55, 135–40. For an account of the attenuation of free black women's rights relative to white women in Virginia, see Brown, Good Wives, 120–28.
96 On the coincidence of the rise of Atlantic slavery and of conceptions of self-ownership among Europeans, see Eltis, African Slavery, 18–24, 55–56, 80. In accounts of sixteenth-century Africa, Europeans depicted “Negroes” (as opposed to “Moors”) as lacking the capacity for self-ownership. Bartels, Emily C., “Imperialist Beginnings: Richard Hakluyt and the Construction of Africa,” Criticism 34 (1992): 517–38Google Scholar, 530.
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98 SSC, 7: 352 (my emphasis). This preamble was modified in 1735 to describe slaves as “generally of a barbarous and savage nature.” Reflecting the racial order's entrenchment, the 1740 slave code replaced the preamble with the declaration that “negroes, Indians, mulattoes and mustizoes,” were “absolute slaves” who were to be reduced to “due subjection and obedience” by the law. Ibid., 7: 385, 397.
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103 Davis, Slavery and Progress, 23–32.
104 Blackburn, New World Slavery, 38–39, 42–44, 49–50. In the mid-sixteenth century, the Spanish theologian Francisco de Vitoria argued that any Christian soldiers captured in a just war against another Christian state would be “captives, but not slaves.” What marked the difference, he suggested, was that “they [Christians] are able to appear in a court of justice and do other things of that sort, which nevertheless could not be permitted if they were slaves. The acts of a [Christian] captive are valid, and a Christian could not sell him at all.” We can already discern the outlines of juridical subjecthood here, albeit restricted to the Christian rather than the civilized person. de Vitoria, Francisco, “De Jure Gentium et Naturali,” Macken, Francis Crane, trans., in Scott, James Brown, The Spanish Origin of International Law: Francisco De Vitoria and His Law of Nations (Oxford: Clarendon Press, 1934), cxiii–cxivGoogle Scholar.
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109 Klingberg, LeJau, 50, 52–55, 60, 86, 97, 102, 121, 136; Goetz, Baptism, 98–110; Olwell, Masters, 126–29.
110 Some slave-owners saw limited slave baptisms as a means of controlling their slaves. Ibid., 116–26; Parent, Foul Means, 249–64.
111 Eltis, African Slavery, 84.
112 Ibid., 49–54, 114–92; Davis, Slavery and Progress, 63–82; Snyder, Slavery in Indian Country, 4–8, 47–50; Thornton, Africa and Africans, 72–125.
113 Eltis, African Slavery, 224, 66–70, 79–80.
114 See, for example, ibid., 234–42.
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116 Blackburn, New World Slavery, 230; Davis, Slavery and Progress, 100–1; Eltis, African Slavery, 239–41.
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133 Eltis, African Slavery, 148–49; Thornton, Africa and Africans, 43–71; Blackburn, New World Slavery, 81.
135 Curtin, Philip D., ed., Africa Remembered: Narratives by West Africans from the Era of the Slave Trade (Madison: University of Wisconsin Press, 1967), 17–59Google Scholar, quote at 42.
136 In spite of the connection of commercialism and juridical subjecthood, slaves were often commercial innovators in the colonies. Some Carolina slave-owners reduced the cost of maintaining their slaves by allowing them to work for themselves. These slaves occasionally acquired property in livestock or became traders in the Charles Town market, much to the chagrin of colonists who complained of slaves driving up the prices. PROSC, 17: 304; SSC, 2: v, 22–23, 7: 368, 382–83, 393, 408–10; Olwell, Masters, 141–80; Wood, Black Majority, 62, 138–39, 207–17.
137 Cf. Eltis, African Slavery, 114.
138 SSC, 2: 153–56; 3: 272; 7: 367, 370; PROSC, 14: 177.
139 1701 Act, 416; SSC, 3: 272; 7: 68; CH, 1725: 73–74; Henry, Police Control, 18–21. Solidarity among slaves usually led masters to reject the use of slaves as overseers. Blackburn, New World Slavery, 344–50; Morgan, Slave Counterpoint, 218–25.
140 Morgan, American Slavery, 338–89. Anthony Parent highlights persistent class conflict in eighteenth-century Virginia. Foul Means, 173–94.
141 On the aspiration to slave ownership, see Olwell, Masters, 44–45. Despite these difficulties, there were fewer non-slaveholding whites in South Carolina than in Virginia. Morgan, Slave Counterpoint, 17.
142 Klingberg, Appraisal, 58–60.
143 Sirmans, Colonial South Carolina, 59–60, 145, 226–29.
145 On the paper money crisis, see ibid., 144–77; Richard M. Jellison, “Paper Currency in Colonial South Carolina: A Reappraisal,” South Carolina Historical Magazine 62 (1961): 134–47.
146 Merrell, James H., The Indians' New World: Catawbas and Their Neighbors from European Contact through the Era of Removal (London: Norton, 1991), 136Google Scholar.
147 PROSC, 14: 58–60, 71–74; 15: 135–36; 16: 199–201; CH, 1734–1735: 64, 139.
148 Blackburn, New World Slavery, 311.
149 “Lords Proprietors to the Governor and Council,” 5 June 1692, Colonial Office Series, United Kingdom National Archives (Kew), CO5/286, 195; CH, 1693: 27; Gallay, Indian Slave Trade, 94; Henry, Police Control, 28–36.
150 SSC, 2: 180–81, 299; 3: 120–21. It is unclear how largely illiterate Indian populations assessed the authenticity of tickets. They may have been assisted by Englishmen who accompanied some Indian patrols, or they may have been familiar with colonial seals from treaty documents. For an early colonial passport, see “Passport Issued by Governor Merchant of Albemarle County, Carolina to John Hastings,” 18 Aug. 1690, Sloane Series, British Library (London), Sloane 2717, 28. On Indian illiteracy, see Nichols, Patricia Causey, Voices of Our Ancestors: Language Contact in Early South Carolina (Columbia: University of South Carolina Press, 2009), 85–86Google Scholar.
151 CH, 1734–1735: 233.
152 PROSC, 5: 204. Following the Yamasee War, the militia dispensed with enslaved militiamen and merged with the slave patrol to become the primary force for policing unfree labor within the colony. Hadden, Slave Patrols, 21; Wood, Black Majority, 127–28, 274–76.
153 SSC, 7: 347–51; Chicken, George, “Journal … to the Cherokee … 1715–16,” in Cheves, Langdon, ed., Yearbook of the City of Charleston (Charleston: Walker, Erono, & Cogswell, 1894), 323Google Scholar.
155 Chicken, George, “Journal to the Cherokees, 1725,” in Mereness, Newtown, ed., Travels in the American Colonies (New York: Macmillan, 1916), 159Google Scholar.
156 Chicken, “Journal 1715–16,” 344.
157 “Journal of John Barnwell,” Virginia Magazine of History and Biography 6 (1898): 42–55, 44–45, 47, 52–54.
159 PROSC, 13: 61–70; CH, 1734–1735: 235.
160 PROSC, 13: 129.
162 SSC, 2: 180–81, 299; 3: 120–21, and see also 2: 23.