U.S. Founding Law: Black Lives Don’t Matter

In 1705, the slave-owning politicians who made up the colonial legislature of Virginia passed a law that legalized the murder of Black people and criminalized Black resistance that remained in place through 1776.
  • Daniel Werst | 
  • November 9, 2020
"Inspection and Sale of a Negro," engraving from the book Antislavery (1961) by Dwight Lowell Dumond. Library of Congress, Washington, D.C.

Slavery in the United States was shaped first by brutal force and second by law. Large landowners were hungry for subjugated labor, and African slaves played an increasingly central role in the accumulation of wealth. Slavery was structured by legal actions. This started with court cases in the mid-1600s like that which sentenced John Punch, a Black laborer, to servitude for life after he escaped with two white indentured servants. And it continued until the Fugitive Slave Act and the Supreme Court decision against Dred Scott in the 1850s.

A law made by the colonial legislature of Virginia in 1705 set down the definitive rules of U.S. slavery. The New York Times’s 1619 Project refers to the year the first Angolan captives were bought by the leaders of Jamestown. Virginia passed a string of murderous laws enforcing slavery during the second half of the 1600s. The 1705 code compiled all such laws into one document about the treatment of slaves and indentured servants.

Reading this act corrects a myth we are taught in school — that the parliamentary assemblies of the 13 colonies slowly evolved a stable embryonic democracy before the founding of the United States, even if only white males with property could vote. The 1705 law shows that the colonial assemblies were elite bodies that sat on top of huge social conflicts and ordered brutal repression, especially against Black and indigenous people. The 1705 code also shows how law is not predominantly a matter of justice, reason, or democratic debate but a system of force tied to systems of exploitation. It is a field of struggle in which the ruling class often wage a one sided war against the oppressed. In particular, the Virginia law reveals how courts and sheriffs, even before the creation of modern urban police corps, existed largely to enforce slavery.

Virginia was colonized beginning from the James River with three wars against the Powhatan Native Americans. By 1676, when Bacon’s Rebellion shook the colony, it had expanded to the Potomac River. Development of the colony and cooperation between small white farmers and the aristocratic plantation owners rested on rapid westward expansion by attacking and expelling numerous Native tribes.

The 1705 “Act concerning Servants and Slaves” — codifying forms of violence, control of movement, and discrimination between Black and white laborers — came at a turning point. From 1660 to 1700, the Royal African Company pioneered the massive British transportation of slaves across the Atlantic. One out of five of the Africans transported by the RAC were murdered by the brutal treatment. In 1698, Parliament ended the Company’s monopoly. Other British merchants moved into slave trading and forced transport of Africans to the British colonies exploded.

Virginia transformed from a colony that used slavery to a slave colony. By one estimate, there were only a few hundred Africans there in 1650. In 1680, there were 3,000, and by 1700, there were over 16,000 African people in the colony. Landholders shifted heavily to using slave labor on their tobacco plantations. The Black population of Virginia grew more than tenfold in the next 75 years and was over 200,000 at independence. A chart from SlaveVoyages.org shows how the forced transport of Africans to the U.S. occurred primarily between 1700 and 1775, with a surge in 1807 before Congress banned it. The shipping of slaves was sharply reduced in the 1740s because the Stono slave rebellion frightened the slave owners of South Carolina into cutting importation.

What Did the 1705 Slave Code Say?

Poor whites arriving in the colony were made unpaid servants for five years, while Africans were enslaved. Slave owners were promised that slaves could not gain freedom by converting to Christianity and that children of slaves would also be slaves.

Masters of white indentured servants were ordered to provide them decent food, clothing, and housing, and not to whip them on their own authority. None of this applied to Africans.

Buying or selling any item with slaves or servants was punishable by a month in jail. Those who could not pay a cash fine would also receive 39 lashes at the county court’s whipping post. White women who had children with Black men were to be fined or, if they were too poor to pay, be sold as servants by the Anglican Church for five years. The Church would enslave these children until they reached the age of 31.

A reward was promised to anyone who turned in runaway slaves or servants. Local “justices of the peace” or “constables” were to jail and return runaway slaves. Each official was to “commit the said runaway to the next constable, and [order] so many lashes as [he thinks] fit, not exceeding … 39; and then to be conveyed from constable to constable, until the said runaway shall be carried home, or to the country jail.” Slaves were banned from traveling without written permits.

A key section declared it legal for a master or overseer to murder a slave but a crime for any Black (or Native) person to ever use force for any reason against any white person. “If any slave resist his master … correcting such slave, and shall happen to be killed in such correction, it shall not be accounted felony; but the master, owner, and every such other person so giving correction, shall be free and acquit of all punishment and accusation for the same, as if such incident had never happened. And also, if any negro, mulatto, or Indian, bond or free, shall at any time, lift his or her hand, in opposition against any [white Christian] he or she so offending shall … receive on his or her bare back, thirty lashes, well laid on.”

The law authorized unlimited force against slaves who escaped. Justices of the peace were to declare them fugitives, with an announcement issued “at the door of every church.” Sheriffs were to capture them with whatever armed group they felt necessary. The legislature said, “it shall be lawful for any person … to kill and destroy such slaves by such ways and means as he, she, or they shall think fit, without accusation or impeachment of any crime.” If captured, masters and courts could “order such punishment to the said slave, either by dismembring, or any other way, not touching his life, as they in their discretion shall think fit, for the reclaiming any such incorrigible slave, and terrifying others from the like practices.” The legislature promised to reimburse slave owners for “every slave killed, in pursuance of this act.”

Slavery, Law, and Parliamentary Democracy

Legislative bodies serve the classes that create and dominate them. Bourgeois elections do not change who wields power. The Virginia law, written by a legislature where many of the Founding Fathers are often described as having trained themselves in “democracy,” is strikingly similar to the French Code Noir, enacted by Louis XIV, that governed slavery in Haiti and later Louisiana.

“Equality before the law” is difficult to trace as a real practice in American jurisprudence. The custom of ordering either fines that some defendants can pay or harsh punishment by whipping or imprisonment, and the immense discretion given to judges — always from the upper classes — to impose a penalty as mild or severe as they personally see fit is easy to follow from 1700 to the present.

These systems have never been and cannot be reformed to be non-racist or democratic. American racial capitalism has always officially or unofficially sanctioned special punitive violence. Many of the rules of slavery are difficult to imagine today. Yet courts continuously rule that cop murders of Black people such as Breonna Taylor in Louisville and Walter Wallace Jr. in Philadelphia were not criminal acts — this very much echoes the Virginia legislature’s announcement that it would treat the murder of a slave by an overseer “as if such incident had never happened.” The American police, courts, and prison system all have to be thrown into the garbage can of history.

The slave code was not abolished after 1776. Washington, Jefferson, and Madison, three of the most important “Founding Fathers,” were born in Virginia 30 to 50 years after the law was passed. It was in force on their respective plantations of Mount Vernon, Monticello, and Montpelier. The House of Burgesses, the elected lower house in Virginia’s colonial legislature, became the lower house of the state legislature. Virginia continued to restrict voting rights among white men to only those possessing a minimum amount of property until 1851.

Romantic descriptions of the founding of the United States are designed to spread patriotism that maintains both racism and capitalism. The 1705 slave law demonstrates how a heavily limited “democracy” can serve the exploiting class to organize broader support for itself even while carrying out brutal oppression. Law can sanctify the crimes of the ruling class, while a managed parliamentarism can help to divide, disorganize, and pacify the population. The use of force is mixed with persuasion in sophisticated ways to maintain the status quo.

Virginian James Madison was the most important author of the U.S. constitution, with its “checks and balances” like the bicameral legislature, a strong President separate from Congress, a Senate disconnected from the population, and the Electoral College (alongside the original Three-fifths Compromise that effectively allowed slave owners to vote in the name of their slaves). The Senate, as a legislative upper house, was a non-monarchist adaptation not only of the British House of Lords but also of Virginia’s colonial Governor’s Council.

The United States as an entity has always been predicated on anti-Black racism. U.S. “democracy” insists that the rich speak in the name of “the people” while keeping the working class and oppressed silent, confused, and disorganized. The masses of white Americans have always been asked to give either active or passive approval to the systematic oppression of Black Americans, and this has always been central to preempting the potential for revolutionary politics in this country. By better understanding the nexus between racism and managed parliamentarism in colonial Virginia, we can better understand the mixture of false promises and unpunished racist police violence that characterize capitalist politics in the era of the Trump-Biden election, economic crisis, and the pandemic. Both wings of the ruling class  are pushing through a poverty-based “reopening” without meaningful health and safety precautions in the midst of a deadly pandemic that has hit Black and Latino people many times worse than whites.

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Daniel Werst

Daniel Werst

Daniel is a teacher, former carpenter, and long-term socialist living in Indianapolis.

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