16. Freedom seekers and the law in England’s American and Caribbean colonies

The earliest surviving runaway advertisement to be printed in England’s colonies was published as a broadside in Boston in 1697 (Figure 35). It was an ephemeral item and if other such notices were printed they have not survived. This broadside included descriptions to help identify the twenty-two-year-old freedom seeker, indicating that he spoke English well, was ‘a well-set Fellow’, and was wearing ‘a new black Hat, a new light coloured cloth Coat with pewter Buttons, lin’d with yellow, canvas Breeches buttoned at the Knees with pewter buttons, yarn Stockings Tarred, Leather Heel’d Shoes’. As such it was similar to the runaway advertisements that had been appearing in London newspapers for almost half a century, but not in colonies without newspapers and – in the Caribbean and Chesapeake colonies – without printing presses. It was not until the early eighteenth century that the first newspapers appeared in the colonies, complete with the colonies’ first runaway slave advertisements.

Figure 35. William Tilly, ‘Advertisement. Ran Away the 13th of this Instant June …’ (Boston, 1697). Original held by Boston Public Library, reproduced by Readex in Early American Imprints, series 1. Image reproduced by permission of NewsBank.

Freedom-seeking enslaved people were, however, ubiquitous in the colonies. If freedom seekers challenged the authority of enslavers in late seventeenth-century London, enslaved people who attempted to escape represented a far greater threat to planters in the North American and Caribbean colonies. During the seventeenth century Londoners made use of newspaper advertisements in constructing the idea of the runaway slave and the practice of broadcasting information designed to secure freedom seekers, while English colonists responded to runaways in a more forceful and comprehensive manner by creating new laws and practices that were unprecedented in English law. Freedom-seeking bound labourers threatened the entire colonial enterprise, for the mid-seventeenth-century development of staple crop economies had rendered the plantation colonies almost wholly dependent on bound labour forces. In 1664 the Council of Foreign Plantations in London prefaced a series of recommendations with the observation: ‘It being universally agreed that people art the foundation and Improvement of all Plantations and that peopl. art increased principally by Sending of Servants thither, It is necessary that a Settled course be taken for the furnishing them with servants.’¹ The Barbados planter Richard Ligon was well aware that, while sugar was the most valuable crop sent from the colonies back to England, the leading ‘Commodities these Ships bring to the Island; are, Servants and Slaves’.² Securing the labour first of indentured servants and then of enslaved Africans and indigenous Americans was essential to colonial success.

At first it was impoverished White Britons who laboured on early Chesapeake and Caribbean plantations. The unhealthy environment and gender imbalance meant that for a century or longer mortality rates were substantially higher than birth rates, necessitating a constant influx of new workers. The high costs involved in obtaining these workers meant that the year-long terms of service common for agricultural and urban servants in England were replaced by far longer terms of four to seven years for indentured White servants from the British Isles. During the seventeenth century perhaps 90,000 servants travelled from the British Isles to the Chesapeake colonies of Virginia and Maryland, and as many as 75,000 to England’s Caribbean colonies. Some travelled voluntarily, desperate for a new start after completing their term of service, while others were vagrants, convicts and prisoners of war from England, Scotland and Ireland who were transported to the colonies and whose labour was sold without their consent. However, as more servants survived their terms of service, a declining number were able to acquire good land and a viable foothold in the colonies, leading to social unrest and even armed conflict, most famously in Bacon’s Rebellion of 1676–7 in Virginia. From the 1650s onwards the declining cost and increased availability of enslaved African labourers led planters to shift from bound White servants to enslaved Africans who would not be freed. This began on a large scale in Barbados, then spread to Jamaica and to the southern mainland colonies. By the end of the seventeenth century racial slavery was ubiquitous throughout England’s New World colonies.³

Indentured servants and then enslaved Africans and indigenous Americans routinely resisted their subordination. Men, women and children defied those who commanded them by feigning sickness, temporarily absenting themselves, working slowly, engaging in sabotage, escaping and even plotting and occasionally engaging in violent rebellion. This routine resistance was dramatically different in both scale and nature from any that had occurred among servants in husbandry and domestic servants in medieval and early modern England. The need to find gainful employment and to save for marriage and the creation of their own households encouraged many English youths to voluntarily contract for a year at a time, often changing employers at the end of that term – a useful safety valve for any labourers unhappy with their employer. The self-interest of these labourers, along with occasional laws and the actions of local courts, generally proved sufficient to control most members of England’s vast servant population.⁴ But in the colonies the existence of a qualitatively different subordinate population of long-term involuntary indentured servants, and then permanently enslaved people, required new systems and practices for regulation and control of a large, potentially rebellious workforce that enjoyed fewer and then eventually none of the rights and expectations of servants in England.

Furthermore, as neither parliament nor the English courts addressed the issue of colonial bound servants, and most especially enslaved people who challenged their subordination, it was left to colonial legislatures and courts and to the private actions of enslavers to create a system for controlling plantation labourers. Colonial legislative assemblies were able to develop these systems with little imperial oversight and beyond the pale of English common law, not least because many of these laws and codes were developed and honed during a period of minimal imperial oversight. Between the 1620s and the 1660s England’s government was engulfed by the political and military strife of the Personal Rule of Charles I, the English Civil War and the ensuing Wars of the Three Kingdoms, the execution of the monarch, the revolutionary Protectorate of Oliver Cromwell and the Restoration of Charles II.⁵

The regulation and policing of bound labourers in England’s frontier colonial societies developed in a piecemeal fashion during the seventeenth century. Individual enslavers regulated their own workers and punished those who resisted, including those who attempted to escape. Over time, courts and legislative assemblies began to institute policies and practices that suited their environment and labour force and the needs of wealthy landowners, slowly constructing a corpus of law and practice within each colony. The details of these first tentative steps have not survived for some of the colonies, especially Barbados. The early seventeenth-century records are better for the northern mainland colonies, although during the seventeenth century these laws were primarily focused on regulating the White servants who dominated the region’s bound labour force.

The earliest surviving colonial legislation dealing with freedom-seeking White servants and enslaved Black people was passed in the northern colonies, but the most significant legal innovations were in the plantation colonies to the south on the mainland and in the Caribbean colonies that were dependent on large numbers of bound or enslaved workers.⁶ This process began in the Chesapeake colonies of Virginia and Maryland, where the attempts of labourers to escape threatened the ability of Chesapeake planters to successfully oversee the planting, cultivation, harvesting and processing of a tobacco crop that could quickly and easily spoil.⁷ All of the earliest legislation in the Chesapeake colonies dealing with runaways was focused on bound White servants from the British Isles, who at that time dominated the workforce. The Maryland Assembly moved first, legislating against any servants who ‘depart away Secretly from his or her Master or dame’, as well as those who knowingly aided and abetted such runaways. A year later the Virginia Assembly acted against those who encouraged or employed runaway servants, prefacing their action with the observation that ‘complaints are at every quarter court exhibited against divers persons who entertain and enter into covenants with runaway servants’.⁸ In Virginia the penalties were greater for a second attempted escape, and such ‘incorrigible rogues’ were to ‘be branded in the cheek with the letter R’.⁹ In 1658 Virginia’s earlier statutes were consolidated into a single law entitled ‘Against Runnaway Servants’, while in April 1662 Maryland passed a comprehensive ‘Acte touching Runawayes’, designed to address the ‘great prejudices, Losses and Damages’ sustained by planters ‘by reason of their Servants running Away or absenting themselves’.¹⁰

Virginia and Maryland were essentially frontier colonies with no major urban centres and with a limited transportation and communication infrastructure, an underdeveloped policing system and only occasional court sessions. Consequently, policing the bound workforce and pursuing runaways presented a logistical challenge to planters and the rudimentary legal system. With this in mind, the Virginia Assembly built on English precedents by mandating a formalized system of ‘huie[sic] and cries after runaway servants’. Once endorsed by the governor or a member of the Governor’s Council, these handwritten documents detailing runaways were distributed to local commissioners, who then required heads of household to attest that they had no knowledge of the runaways.¹¹ These were probably the first runaway advertisements produced in the mainland American colonies, although, not surprisingly, none have survived. It was by no means easy to tell who was a legitimately bound servant, who was a freeman and who was a runaway. In an attempt to ease identification of repeat runaways, a law in 1659 entitled ‘How to Know a Runnaway Servant’ mandated that enslavers crop the hair of all recaptured runaways ‘close above the ears, whereby they may be with more ease discovered and apprehended’ should they again attempt to escape.¹² Other laws were designed to mobilize the entire free White community against runaways, and a law simply entitled ‘Against Runawayes’ sought to enlist all free White men by promising anyone who caught a runaway a reward of 1,000 pounds of tobacco: this was to be paid by the legal owner of a runaway, who in turn would be reimbursed by the enforced additional service of the runaway. In the eyes of Virginia’s legislators, the escape of bound labourers was an offence against not just individual enslavers but also the entire community, and all free men were required to police the bound workforce and would be rewarded for this work.¹³

Entire laws designed to prevent escape and to punish runaways and those who assisted or harboured them represented both a departure from and a revealing addition to broader English laws addressing servants. Emanating from a labour-poor colonial environment, these legal innovations demonstrate the absolute dependence of planters on their bound workforce. But it was in their attention to freedom-seeking enslaved runaways that colonial assemblies proved most innovative. In 1672 the Virginia Assembly passed ‘An act for the apprehension and suppression of runaways, negros and slaves’, the first such law to focus more on escaped enslaved Africans than on White servants from the British Isles. For the first time freedom-seeking enslaved people were identified as being ‘in rebellion’, and not only White settlers but also ‘neighbouring Indians’ were ‘Required and enjoyned’ to apprehend runaways. Just four years before the outbreak of violence on the Virginia frontier that ignited Bacon’s Rebellion, members of the assembly had been clearly concerned about the ‘many mischiefs of dangerous consequence’ that might occur should these freedom-seeking rebels escape to the Virginia frontier. The law absolved from criminal responsibility any person killing an escaped enslaved person who resisted recapture, while promising financial restitution to the person who claimed ownership of the runaway. Clearly and definitively, enslaved people were to be treated as property, and their attempts at resistance by escape were defined as rebellion.¹⁴

It was not until 1705 that Virginia’s legislation relating to indentured servants and enslaved people was consolidated into a single comprehensive law, and the prevention of and punishment for escape was a central theme of ‘An act concerning Servants and Slaves’. By this time the Chesapeake colonies of Virginia and Maryland contained approximately 20,000 enslaved Africans and a little over 3,000 White servants, and thus most of this comprehensive law was focused on the enslaved.¹⁵ Ten years later Maryland followed suit with ‘An ACT relating to Servants and Slaves’.¹⁶ The violence towards enslaved freedom seekers permitted and indeed mandated by Chesapeake laws stood in stark contrast to English laws delineating the relationship between masters and any of their servants who absconded.

But it was in the Caribbean that large-scale plantation agriculture had first appeared with very large populations of enslaved people. Consequently, it was in those colonies where innovative legal and social mechanisms for the subordination of bound workforces and the prevention and punishment of escape were first created, and eventually spread to South Carolina on the mainland, whence it informed laws throughout the lower South. Large-scale plantation slavery developed initially in Barbados, where a clear differentiation between enslaved people and bound White servants was already appearing by the mid seventeenth century. In mainland North America racial slavery advanced fastest in the Chesapeake colonies of Virginia and Maryland, a region in which an estimated 16,151 enslaved Africans in total arrived during the seventeenth century. During the same period the small island of Barbados received approximately 236,724 enslaved Africans, a huge forced migration unparalleled in seventeenth-century England’s colonies.¹⁷ During the seventeenth century almost 84 per cent of the estimated total of enslaved Africans brought to all of England’s Caribbean and North American colonies were landed in Barbados, Jamaica and South Carolina. In these plantation societies, enslavers and their legislative assemblies developed and honed the laws of slavery and their mechanisms for the prevention and punishment of rebellion and escape out of necessity, for it was here that escape and rebellion represented the greatest threat.

As in the mainland colonies, plantation agriculture in Barbados began with bound White servants from the British Isles, but within a generation these workers were being replaced by enslaved labourers. Relations between planters and their servants were defined less by English law than by the localized and developing ‘custom of the country’, which illuminated both planters’ attitudes to their servants and the harsh working conditions and low life expectancy of these men and women. During the crucial period between the 1630s and the early 1660s, with English authorities overwhelmed by the strife of the mid seventeenth century, the Barbadian planter elite were able to fashion labour and agriculture as they saw fit. Few of the earliest laws and policies constructed by Barbados planters survive: one of the earliest is an ‘Act to restrain the wandering of Servants and Negro’s’, a 1653 measure directed less against escape than against ‘the wandring of Servants and Slaves, on Sundayes, Saturdayes in the afternoon, and other days wherein the said Servants, or Slaves do not work’. This law required servants and enslaved people to carry a ‘Ticket’ created by enslavers and overseers permitting absence from the plantation, and mandating punishment of those caught without such permission.¹⁸

In the 1653 law the penalties were identical for White servants and enslaved Africans, with this one law covering runaways from both groups. However, well in advance of enslavers on the North American mainland, Barbados planters soon recognized and sought to address what they saw as fundamental differences between the two groups of bound labourers, and a separate law passed a year earlier was focused exclusively on ‘Run-away Negroes’, the first English colonial law directed specifically at enslaved African runaways. Clearly, freedom seekers were a significant problem, as both the penalties for harbouring them and the rewards for reporting them were higher than those for White bound servants.¹⁹

These laws, all passed during the 1650s, marked the years in which sugar production exploded in Barbados and enslaved workers began outnumbering the dwindling number of bound White servants. The transition was swift. In 1643, with relatively few Africans on the island and most planters still growing tobacco, cotton or indigo, James Holdip had twenty-nine bound White labourers working his 200-acre plantation. Three years later Sir Anthony Ashley Cooper’s similarly sized plantation was worked by twenty-one bound Whites and nine enslaved Africans. But by 1654 Robert Hooper’s 200 acres were worked by thirty-five White servants and sixty-six enslaved people, and by 1656 George Martin had no White servants and sixty enslaved people at work on his 259 acres.²⁰

During the two decades of the English Civil War and the Cromwellian Protectorate, Barbados planters spent approximately £1 million purchasing Africans, a vast sum indicative of the profits to be made from sugar. The status of these enslaved labourers was defined by ‘An ACT declaring the Negro-slaves of this Island to be Real Estates’, a law that began with the observation that ‘a very considerable part of the wealth of this Island consists in our Negro-slaves, without whose labor we should be utterly unable to manage our Plantations’.²¹ Building on that fundamental legal foundation, the Barbados Assembly then passed the transformative law entitled ‘An act for the better ordering and governing of Negroes’.²² No known copy of the 1661 Barbados Slave Code survives, but a slightly revised 1667 version that has survived appears to have differed little from the original. Most of the laws passed by the Barbados Assembly at this time were relatively short, often consisting of no more than about 200 words of text designed to adapt English law and precedents to the local situation.²³ Far longer were the laws designed to deal with bound White servants (4,814 words of text), but longest of all was this new Slave Code (4,968 words). The unique nature and significance of bound White and enslaved Black labour as they existed and functioned in Barbados necessitated significant legal innovation and the creation of entire legal codes rather than short and simple laws. Indeed, the introductory paragraph of the Barbados Slave Code noted that English law contained ‘no tract to guide us where to walk nor any Rule set us how to Governe such Slaves’, and then set out the reasons why a long and detailed legal code was required to ‘renew and revive’ useful elements of existing laws while creating significant legal innovations.²⁴

By 1661, when the first Barbados Slave Code went into effect, there were almost certainly more enslaved Africans and indigenous Americans on Barbados than White labourers, and the enslaved may have already outnumbered the island’s entire White population. By 1675 an estimated 58,000 enslaved Africans had been brought to Barbados, supplemented by an unknown number of enslaved indigenous Americans from as far away as New England. In 1680 the first reliable census revealed that 38,352 enslaved people massively outnumbered a rapidly dwindling population of only 2,193 White servants and 3,311 planters and heads of household.²⁵

One of the most striking things about the Barbados Slave Code is that more than one third of the 1667 revision of the 1661 original, some 1,762 words, was focused on the dangers posed by freedom seekers and how best to deal with them.²⁶ Much of this new law revolved around a series of measures designed to prevent, proscribe and punish illegal absence and escape. The substance of the law actually began with a first clause focused on enslaved people who were absent from plantations without permission, and White men were enjoined to apprehend and whip any person found absent from home without a ticket.²⁷ The fourth and the sixth to tenth clauses dealt explicitly with ‘Runaway or fugitive Negro[s]’. The fourth was addressed to White people who were harbouring or holding enslaved people, giving them six days from the publication of the Slave Code to return the runaways to their legal owners or face a fine, up to thirty lashes or a seven-year period of servitude. The sixth required Whites to take into custody ‘any Runaway Negro’ and surrender the freedom seeker to the authorities within forty-eight hours, and the seventh clause specified the rewards to be paid for such action. The eighth clause required owners to pay the authorities and set fees for the recovery of enslaved runaways who had been incarcerated at the public expense, while the ninth provided for compensation to be paid to the owners of enslaved people who died while in public custody.²⁸

The tenth clause went into greater detail about processes, specifying that those who handed fugitives over to the authorities needed to submit their own names and addresses as well as information about ‘where hee apprehended such fugitive Negro’, and that the treasurer or other officials were

required to take and enter in a Book the intent that all Owners of such Negroes may come to the right knowledge and understanding when their Negroes were apprehended and by whom and whether they might be wrongfully taken up or not, and that the keeper of the Prison at the delivery of any Negro do take a Receipt of the person to whom delivered and therein incert the mark or description of the Negro delivered, any usage or Custome to the Contrary heretofore had in any wise notwithstanding.²⁹

Barbados lawmakers clearly saw the value in creating a system of public recording of as much information as possible about freedom seekers, including physical descriptions and information about where, when and by whom they were apprehended. But at this time the distribution of such information was not easy: Barbados had no printing press or newspaper and these records were all handwritten.

The twelfth clause of the 1667 Slave Code continued the discussion on freedom seekers, this time focusing on long-term escapees who had remained at liberty for more than one year. Significant rewards were offered to any who apprehended such long-term runaways, including other enslaved people who would enjoy both a cash reward and ‘a Badge of a Red cross on his right Arm whereby he might be known and cherished by all good people for his good service to the Country’.³⁰ The thirteenth clause then dealt with those who ‘attempted to steal away Negroes by spurious pretences of promising them freedom in another Country’, recognizing that the escape of the enslaved might be triggered by White people who ‘tempt or persuade any Negro to leave their Master or Mistress’ service to whom they are Slaves’.³¹

The seventeenth to twenty-first clauses addressed enslaved people who rebelled through armed uprising or by individual escape. Individuals who undertook either form of resistance were considered by lawmakers to be ‘out in rebellion’, and the punishment for rebellion could be ‘death or other pain as their Crimes shall deserve’.³² The subsequent clauses focusing on runaways were far longer than the paragraph on rebellion, for, while slave uprisings posed the greatest threat to the White population, running away was a far more common and a costly problem.³³

The first of its kind in England’s New World colonies, the comprehensive Barbados Slave Code of 1661 was amended several times before a significant redrafting in 1688 that remained in use with only occasional modifications for more than a century.³⁴ The 1688 code was almost 10 per cent longer than the 1661 original, but there were few substantive differences. What had changed most was the tone, for by this time racial slavery was well established and institutionalized in Barbados, and planters and their legislative assembly were far more confident in their articulation of what was required for the successful operation of a system of racial slavery.

Barbados is a relatively small island of under 200 square miles with no mountains, and by the late seventeenth century the island’s remaining forested areas were rapidly dwindling. The island’s size meant that neither plantations nor the enslaved population would grow beyond a certain level and, as all land that was fit for cultivation had been settled, there were few places where rebels and runaways might hide. Jamaica, captured from the Spanish in 1655, was an altogether different proposition. An island of more than 4,200 square miles, Jamaica is a great deal larger than Barbados, and the island’s heavily forested mountainous heart would prove a tempting destination for freedom seekers and a secure base for the Maroon communities they formed there. A decade later, in 1663, Charles II awarded territory south of the Chesapeake colonies to the lords proprietors of the Carolinas, and this land grant covered an area that was as much as 500 times larger than Barbados. Like Jamaica, this region featured heavily forested and initially inaccessible interior areas. First Jamaica and later South Carolina would develop plantation complexes and enslaved populations far larger than those of Barbados. It was not just the large size of a potentially rebellious enslaved population that frightened White planters in these colonies, but also the mountains, forests and unsettled frontier regions of these new colonies, which could provide refuge for runaways and bases for rebels. In both colonies but especially in Jamaica, the existence of Maroon communities of escaped enslaved people constituted a major threat to the survival and the success of planters.³⁵

In 1684 Jamaica developed a Slave Code modelled on the Barbados code. Six years later South Carolina’s Slave Code was in turn based on the new Jamaican law. Thus the legal systems of these three key English plantation slave systems had much in common. The process began early, and the governor of Jamaica in 1664, Thomas Modyford, a recent arrival from Barbados, signed into law a slave code that was an almost word-for-word copy of the Barbados code.³⁶ Jamaica’s 1684 Slave Code echoed the Barbados code’s provisions relating to runaways, amending them only slightly to suit the local situation. For example, Jamaica’s larger size led the island’s assembly to limit the mileage fees that the captors could charge enslavers for returning their runaways.³⁷

But, as Jamaica and South Carolina grew into far larger slave societies than Barbados, their assemblies went beyond Barbadian precedents. Jamaica’s revised Slave Code of 1696 began with an acknowledgement that the rebellion of runaways who joined large and dangerous Maroon communities ‘hath proved the ruin and destruction’ of many Whites, and the newly revised code was aimed against their ‘bloody and inhuman Practices’. Savage violence against runaways was sanctioned by Jamaican lawmakers who offered a reward of £5 to any White man and 40 shillings and a badge of honour to any enslaved person who ‘shall kill or take any rebellious Slave or Slaves’.³⁸ Whites and those who served them were not just exempted from punishment for murdering freedom seekers, but were now lauded and rewarded for their actions. Local White officials were empowered to raise hunting parties to locate the ‘Haunt, Residence, or hiding Place of any Runaway Slaves’, and the law required the owners of any runaways captured to pay 40 shillings for anyone captured alive and 20 shillings ‘for every Slave killed’. Whites who harboured or concealed runaways faced a very large fine of £100, a sum that was possibly more than the cost of an enslaved person. A number of the law’s provisions dealt with the owners of small boats and the captains of larger vessels, recognizing that, unlike Barbados, Jamaica was relatively close to other islands and attracted more mercantile and naval vessels, making escape by sea more likely.³⁹

The South Carolina Assembly first addressed freedom seekers in ‘An Act Inhibiting the Trading with Servants or Slaves’ (1686), which ended with a provision addressing White indentured servants who absconded, before declaring it illegal for ‘any negroe or negroes, or other slave, upon any pretence whatsoever, to travel or go abroad, from his or their masters or mistresses house … without a note’. Any White person who took into custody an enslaved person absent from their home without proper authorization was empowered ‘to chastise and correct’ the freedom seeker before returning them.⁴⁰ Then, in 1690 the South Carolina Assembly passed its own ‘Act for the Better Ordering of Slaves’, a Slave Code modelled on Jamaica’s. Although this law replicated a good deal of the earlier Barbados and Jamaica statutes, there were some differences, including the recognition that runaways – and the enslaved population at large – included both ‘negro or Indian’ people. Freedom seekers who resisted recapture were ordered by the assembly to be ‘severely whipped’, to have their noses slit and their faces branded and potentially even to suffer ‘death, or any other punishment’.⁴¹ In an attempt to ensure that recaptured runaways could be identified and returned, the law required local officials who held runaways in custody to ‘give an account in writing’ to each meeting of the assembly ‘of what negroes he hath in prison, with their marks and names, and the time they have been in his custody, and as near as he can learn, how long each hath been from his respective owners’.⁴²

By the end of the seventeenth century, England’s New World colonies had created the entirely new legal category of the runaway slave. Where London masters had made racial slavery real and present in the English capital, using newspapers and networks of those engaged in trade and empire to pursue and capture freedom-seeking enslaved runaways, escaping slavery became a crime in the plantation colonies, and the violent intimidation and punishment of the enslaved who risked escape was legitimated. The very bodies of the enslaved were treated both by enslavers and by colonial authorities as property. While the elopement of enslaved Black and free White servants in England was an annoying inconvenience for masters, the escape of the enslaved in the colonies represented a potentially calamitous theft of one of plantation society’s most valuable forms of property. Thus colonial laws and social practices had evolved quickly to safeguard planters against the loss of their property in bound labourers and to punish any who sought to escape and those who might harbour them.