Crime and Punishment in American History - Lawrence M. Friedman [34]
Slavery and Political Justice
Criminal justice had at least one job in the colonies with no counterpart whatsoever in England: controlling slaves. Every colony also had a mass of indentured servants. In the northern colonies these servants far outnumbered slaves.
An indentured servant was, in some ways, a kind of temporary slave. It was a crime for a servant to run away from his or her master. There were also a fair number of slaves in the northern colonies; but already, by the eighteenth century, slavery was the “peculiar institution” of the South. In parts of that region, black slaves came to outnumber free whites, and by a considerable margin. Slaves were condemned to a lifetime of servitude; mothers handed down the condition to their children in the womb.
In the South, slavery was a prime concern of criminal justice. Masters and overseers had the basic job of controlling the slaves and policing slave society. They punished petty offenses quickly and summarily, on the plantation and in their homes. Slaves might therefore actually be underrepresented in the regular courts; this was certainly true in Richmond, Virginia, in the mid-eighteenth century.108
The whip was the main tangible symbol of social control; masters, mistresses, and overseers used it quite liberally. William Byrd of Westover, Virginia, recorded the following in a dry, matter-of-fact tone in his diary: on November 30, 1709, Eugene, a house hand, “was whipped for pissing in bed.” On December 3, Eugene repeated this offense, “for which I made him drink a pint of piss.” On December 16, “Eugene was whipped for doing nothing yesterday.” Three years later, on December 18, 1712, “I found Eugene asleep instead of being at work, for which I beat him severely.”109
The slave had no defense, of course, against the whip; and punishment on the plantation could be brutal, even murderous. A Virginia law of 1669, on the “casuall killing of slaves” (casual means “accidental” here), recognized the right to punish “refractory servants,” and, by implication, severely. If a slave resisted his master and was “corrected,” and “by the extremity of the correction should chance to die,” this was not murder or any other felony, since “it cannot be presumed” that the master really meant to kill and thus “destroy his owne estate.”k Technically, killing a slave could be murder, if it was done maliciously. In Virginia, two men were executed in 1739 for whipping a slave to death; but this was highly unusual. When Andrew Burns, an overseer, killed a slave through whipping in Virginia in 1729, he was sentenced to death; but the governor pardoned him, because “the taking away the life of this man will, in all probability stir up the Negro’s to a contempt of their Masters and Overseers.” 111 And that, after all, was a cardinal legal and social principal.
The control of slaves was only one example of political justice in the period. In a larger sense, much of the religious regulation had a political bent or basis. The issue was godliness, to be sure; but beyond this was a more practical question: Who would run the colonies? Religious orthodoxy was the basis on which the authorities claimed the right to rule. There were high-level wrangles and disputes and theological debates and political debates. But there was also a low-level, nearly invisible struggle, a stuggle that also goes on in communities far less autocratic and paternalistic: on the one side, leaders trying to put down or control deviants, troublemakers, questioners of authority; on the other side, men and women trying to assert their individuality, or simply unable, for one reason or another, to behave the way society wants them to. Richard Gaskins, studying eighteenth-century Connecticut, found instances of bad behavior in and around church that were really expressions of religious dissent. In one case, a sabbath-breaker, dressed “in an indecent and