Race and Police: The Origin of Our Peculiar Institutions 9781978834521

Citation preview

Race and Police

Critical Issues in Crime and Society Raymond J. Michalowski and Luis A. Fernandez, Series Editors Critical Issues in Crime and Society is oriented ­toward critical analy­sis of con­temporary prob­lems in crime and justice. The series is open to a broad range of topics including specific types of crime, wrongful be­hav­ior by eco­nom­ically or po­liti­cally power­ful actors, controversies over justice system practices, and issues related to the intersection of identity, crime, and justice. It is committed to offering thoughtful works that ­w ill be accessible to scholars and professional criminologists, general readers, and students. For a list of titles in the series, see the last page of the book.

Race and Police The Orig in of Our Peculiar Institution s

B e n B ruc ato

Rutg e r s Unive r sity P re s s New Brunswick, Camden, and Newark, New Jersey London and Oxford

​ utgers University Press is a department of Rutgers, The State University of New R Jersey, one of the leading public research universities in the nation. By publishing worldwide, it furthers the University’s mission of dedication to excellence in teaching, scholarship, research, and clinical care. Library of Congress Cataloging-­i n-­P ublication Data Names: Brucato, Ben, author. Title: Race and police : the origin of our peculiar institutions / Ben Brucato. Description: New Brunswick : Rutgers University Press, [2023] | Includes bibliographical references and index. Identifiers: LCCN 2023004700 | ISBN 9781978834484 (paperback) | ISBN 9781978834491 (hardcover) | ISBN 9781978834507 (epub) | ISBN 9781978834521 (pdf ) Subjects: LCSH: Police—United States—History. | Racism in criminal justice administration—United States—History. | Racism in law enforcement— United States—History. | Black people—Civil rights—United States—History. | Black people—Legal status, laws, etc.—United States—History. Classification: LCC HV8135 .B78 2023 | DDC 363.20973—dc23/eng/20230207 LC record available at https://lccn.loc.gov/2023004700 A British Cataloging-­in-­P ublication rec­ord for this book is available from the British Library. Copyright © 2023 by Ben Brucato All rights reserved No part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, or by any information storage and retrieval system, without written permission from the publisher. Please contact Rutgers University Press, 106 Somerset Street, New Brunswick, NJ 08901. The only exception to this prohibition is “fair use” as defined by U.S. copyright law. References to internet websites (URLs) w ­ ere accurate at the time of writing. Neither the author nor Rutgers University Press is responsible for URLs that may have expired or changed since the manuscript was prepared. The paper used in this publication meets the requirements of the American National Standard for Information Sciences—­Permanence of Paper for Printed Library Materials, ANSI Z39.48-1992. rutgersuniversitypress​.­org

Conte nt s

Preface Introduction

vii 1

C r i t ic a l Th e ory of R ac e Pa r t I a n d Pol ic e

27

1

The Peculiar Institution of Police

29

2

The Peculiar Institution of Race

54

Pa r t I I Th e Pol ic e L aw of S l av e ry

73

3

The Genesis of Race in Colonial V ­ irginia

77

4

The First Black Slave Society

96

5

Acquiring a Slave Society

116

B l ac k I n su r r e c t ion a n d Wh i t e C ou n t e r i n su rge nc y i n Pa r t I I I C ol on i a l A m e r ­i­c a

131

6

A “Patroll” to Suppress Domestic Dangers

133

7

Policing the Chesapeake

154

8

Enemies of Their Own House­holds

171



Conclusion: Peculiar Institutions

192

v

vi

Contents

Acknowl­edgments Notes Note on the Cover Art Index

209 211 249 251

Pre fac e

The year 2019 marked the 400th  anniversary of the arrival of the first enslaved Africans in the E ­ nglish mainland colonies. A year l­ater, in response to the widely publicized murder of George Floyd, streets swelled with protests against police vio­lence. From the multicultural melting pot of New York City to small, mostly white, rural towns in southwest Indiana, ­people spoke out against police, who killed Floyd—­like hundreds of o ­ thers—­a fter racially profiling him u ­ nder the guise of enforcing a commonplace, minor infraction. This movement called not just for police accountability, but for defunding police. Moreover, it targeted monuments to leaders of the Confederacy and t­hose who profited from slavery. For ­those invested in mining the history of slavery for its relevance to race relations ­today, and for ­those resisting police vio­lence, the connections among ­these issues may seem obvious. Protesters responding to the police murder of George Floyd seemed to clearly understand the relevance of the history of slavery to the policing of Blacks in the United States t­ oday. Should they want to consult the contributions of critical theory and criminal justice studies to find a scientific analy­sis of ­these connections, they would be at a loss, especially if they expect to locate a sustained attention to slavery, race, and police in a single source. Beyond making the intellectual point that race and police w ­ ere created in tandem to resolve the same ­political economic crises, this book is intended to be part of this conversation, to inspire further thinking and action to transform society away from enduring racial domination and state vio­lence, t­ oward a f­ uture beyond the abolition of the white race and the police. When I teach about the history of police, I consistently begin our survey by holding up one of the most widely used textbooks on policing in the United States: The Police in Amer­i­ca, by Samuel Walker and Charles M. Katz, first published in 1981 and currently in its ninth edition. I turn to a chapter of the book titled “The History of the American Police” and read the first sentence from a section headed “The First Modern American Police”: “Modern police forces w ­ ere established in the United States in the 1830s and 1840s.”1 The authors point to professional, uniformed police in municipal police departments in Boston and New York as typical of ­t hese ­organizations. vii

viii

Preface

Explaining that I am selecting a section from a facing page, in a section headed “Law Enforcement in Colonial Amer­i­ca,” I then read: “The slave patrol was a distinctly American form of law enforcement. . . . ​The slave patrols, in fact, ­were the first modern police forces in the United States. The Charleston, South Carolina, slave patrol had about a hundred officers in 1837 and was far larger than any northern city police force at that time.”2 The point, which the reader has likely already figured out, is to show that on facing pages in an authoritative source, the history of U.S. police is told in a way that invites confusion. Perhaps as perplexing is that in a section on the colonial era, the authors include a date that is half a ­century ­after the colonial era ended and 133 years ­a fter the founding of this par­t ic­u ­lar patrol in 1704. The Police in Amer­i­ca is among the two-­thirds of policing textbooks that have any mention at all of slave patrols, all of which provide scant coverage. 3 That only one paragraph in a thirty-­five-­page chapter on U.S. police history mentions slave patrols would hardly give pause to most in the field of criminal justice. K. B. Turner and colleagues noted in an article in the Journal of Criminal Justice Education that introductory criminal justice and police ­textbooks lack comprehensive attention to the importance of slavery in the founding and development of criminal justice in the United States. An e­ arlier edition of The Police in Amer­i­ca is included in their analy­sis of thirty-­three textbooks published since 2000. They cite an e­ arlier article from the same journal by Samuel Walker and Molly Brown, which spoke to the neglect of racial and ethnic minorities in introductory criminal justice textbooks.4 If that is not ironic enough, consider that Walker and Turner have coauthored research on race and policing. Though Walker served as a professor of criminology and criminal justice, and much of his research fits best in t­hose fields, he earned his degree in history, and most of his published monographs are on the history of American criminal justice institutions. In his 1980 book ­Popular Justice: A History of American Criminal Justice, he provides greater detail and similarly claims that slave patrols w ­ ere precursors to the police.5 In the introduction to Aaron Fichtelberg’s 2020 textbook, Criminal [In]Justice: A Critical Introduction, he claims the book “­w ill discuss the racial ele­ments of criminal justice throughout” and that he “­w ill make the case that the racial inequalities we see in the criminal justice system are historically connected to slavery.” 6 Chapter  5, titled “The History of Policing,” produces confusions similar to ­those found in the Walker and Katz textbook, opening as follows: “In this chapter, we w ­ ill follow the history of American policing from its origins in ­England up to the pre­sent day.” 7 Then, five pages ­later, Fichtelberg writes “Many early police o ­ rganizations ­were created specifically to monitor and oppress both ­f ree and enslaved blacks. . . . ​A significant portion of early policing in the South consisted in slave patrols.” 8 To Fichtelberg’s credit, he returns to the slave patrols for their lasting influence

Preface

ix

on policing. L ­ ater in the book, he remarks that “the toxic relationship between the police and the African American community has a history stretching back to the fugitive slave patrols of the early 19th ­century, if not e­ arlier.”9 Despite recognizing the e­ arlier existence and persisting influence of slave patrols, the compound naming of “ fugitive slave patrols” lends to the flawed view that ­these police ­were chiefly focused on slave-­catching. Walker and Fichtelberg are rare examples of scholars in criminology and criminal justice who pay much attention at all to the role slave patrols play in the origins of U.S. police. Slave patrols, once footnotes at most, are included briefly in the main text; yet one can search at length and rarely find where the patrols form the basis for any meaningful analy­sis of police. Instead, the patrols are relegated to adjuncts in the history of police, their presence treated as an early experiment or serving as a resolution to prob­ lems l­imited to slavery in the antebellum South. Instead of serving as a basis for theorization of U.S. police, perfunctory references to slave patrols often seem to be included to deflect criticism over past inattentiveness to race. They are mentioned, but are not meaningfully connected to the developments of police in the United States. The Orthodox Hi story of Pol i c e An orthodox history of police is institutionalized, not just in criminology and criminal justice studies, but just about anywhere police history appears. This history has its own origin story: In the beginning, Sir Robert Peel created police. The orthodox version of the history of United States police begins in 1829 when Sir Robert Peel founded the London Metropolitan Police ­Service (MPS), which functioned as a model for police in northern cities, beginning with Boston in 1838. This history is as mythical as it is orthodox, demonstrating both colloquial connotations of “myth”: ritually recited without reflection or investigation and riddled with fantastical inaccuracies. As Markus Dirk Dubber notes, “Americans w ­ ere policing long before they imported the concept of policing from overseas in the late eigh­teenth ­century.”10 Indeed, they ­were ­doing the practical work of policing and clarifying the police mandate well before the ­European concept informed the state’s articulation of its power on the other side of the Atlantic, and even before formal slave patrols w ­ ere created. Large, well-­f unded, and fully institutionalized police already existed in colonial Amer­i­ca for over a ­century before the small, dysfunctional Boston Police Department was founded with its force of just thirty-­two men.11 A police mandate originated in Carolina and ­Virginia in the late seventeenth ­century, with the first ­organizations tasked solely with fulfilling that mandate being founded l­ater, in 1704 and 1727, respectively. Conventionally referred to as “slave patrols,” t­ hese police ­were influenced by efforts of the E ­ nglish to police slave populations on their

x

Preface

island colonies in the West Indies, most notably in Barbados. In their own time, they w ­ ere called neither “police” nor “slave patrols,” and slave-­catching was but a minor part of their role.12 ­W hether deliberate or not, the convention of naming ­these police forces as “slave patrols”—­and almost never as “police”—­ contributes to the confusion in understanding their place in the history of police. This convention leads to the mistaken treatment of slave patrols and the watch as engaged in two distinct activities. One historian writes that the Charleston Town Watch H ­ ouse “was the headquarters of the night watch,” who w ­ ere responsible for “the constant surveillance that was required to police the colony’s slave population.”13 The Watch H ­ ouse was a temporary jail for Blacks apprehended by patrollers, and just outside was “a public pillory where slaves convicted of petty crimes ­were brought to suffer the whippings, brandings, or ear-­croppings to which they had been sentenced.”14 In neglecting the colonial history of police, the orthodox history presumes the direction of influence comes from the m ­ other country to its colony, and thus avoids accounting for the ways that influences between colonial and ­English police went both ways. Mike Brogden finds that the first British police w ­ ere founded not in the seat of its empire, but in its colonies, where concerns over rebellion overrode the establishment of social order. Reminding the reader that “the history of E ­ ngland is also the history of our colonies,” Brogden explains: “­There is no inexorable law that made the British style and organisation of policework (as conventionally portrayed) the norm from which to assess critically the functions of the professional police in Western socie­ties. An appreciation of the imperial context permits a fresh appraisal. More sense can be made of the police public order role in pre­sent society by inserting the material omitted from most police histories—­the centrality of colonial conquest and of imperial legitimation to institutional development in Victorian ­England.”15 The founding ­f ather of modern ­English police, Sir Robert Peel, had his start as an under-­secretary in the War and Colonies Office, which prepared him “in the management of alien, poverty stricken, and rebellious populations” when he took on policing colonial Ireland, roughly a ­decade prior to his founding of the London Metropolitan Police S­ ervice.16 His police in Ireland w ­ ere influenced by an ­earlier system in Dublin, founded in 1785. Monkkonen explains that administering a hostile nation of unwilling subjects who ­were frequently engaged in peasant rebellions was difficult and challenging, since “by the time Peel came to Ireland, the be­h av­ior of the Irish resembled that of ghettoized p­ eople anywhere.”17 In 1786 London, the Committee for the Relief of the Black Poor was founded to respond to challenges presented when Black Loyalists began settling in London during and ­after the American Revolution. The Committee provided them with economic relief, but their main concern was enabling

Preface

xi

their resettlement in Sierra Leone.18 In the late eigh­teenth c­ entury, immigration laws w ­ ere considered to limit entry of Blacks, and vagrancy laws w ­ ere used as grounds for deportation.19 In 1787, the Public Advertiser reported: “The Mayor [of London] has given o ­ rders to the City Marshals, the Marshalmen, and Constables, to take up all the blacks they find begging about the streets, and to bring them before him; or some other magistrate, that they may be sent home, or to the new colony which is g­ oing to be established in Africa.” 20 The arrival of Blacks increased a­fter the international slave trade was banned in 1807 and slavery itself abolished throughout the empire in 1833. The Vagrancy Act of 1824, of course, was not solely or even chiefly concerned with the regulation of poor Blacks; however, reports by the Society for the Suppression of Mendicity suggest this population may have received the most disproportionate attention.21 This is suggestive that “good order” was inextricably racialized in ­England as well, and that this also played some role in the founding of police t­here. Recognizing this requires no imposition of the pre­ sent on the past, as observers in the nineteenth c­ entury recognized it. In 1850 the editor of the Reynolds’s Weekly Newspaper observed that “ ‘peelers’ have been placed as superintendents over the dif­fer­ent ranks; their savage tyranny to the cabmen exceeds belief, and had they a whip in their hands, E ­ nglish policemen would in all re­spects greatly resemble negro slave-­drivers.”22 Eric Monkkonen’s landmark study of urban police in the United States from 1860 to 1920 remains one of the highly regarded sources on the orthodox history of police. In it he assumes a functionalist posture that rejects class control, urban riots, and crime rates as reasons for the advent of municipal policing in the North. Monkkonen attributes the origins of police to a “new kind of city government and new kinds of social control for physically large and diverse populations.”23 It takes ­little license to read his account of the unease over “diverse populations” as depicting concerns about the social insecurity that resulted from the growing presence in northern cities of non-­ whites who w ­ ere perceived to harbor a tendency t­oward rebellion and vio­ lence. Among this group, ­f ree Blacks competed for jobs against newly arrived immigrants from Ireland and Southern E ­ urope, sparking ongoing conflicts that frequently erupted in mass vio­lence. The functionalist tradition, alive in Monkkonen’s analy­sis, finds in diversity the likely breakdown in traditional forms of social control commonly found in smaller, homogeneous communities, which can only be replaced in a modern society by the state’s formal organs of social control. Some of his explanations can be redeemed if the reference to “diverse populations” is treated as a proxy for the class conflicts and riots that w ­ ere becoming as racialized in the North as they had been in the South, yet consisting of a more complex ethnic and racial composition. The orthodox history of U.S. police follows a periodization established by George L. Kelling and Mark H. Moore. 24 The first period, which they

xii

Preface

call the ­political era, began in 1840 and extended to the end of the nineteenth ­century. The reform era ran from 1930 to 1970 and was followed by the community era, from 1970 onward. From its purported origins in 1840, and for the remainder of the nineteenth ­century, police ­were involved, primarily through foot patrols, in social control through crime prevention and order maintenance, but also ­were engaged in riot control. They provided ­services to citizens, such as ­r unning soup lines, providing temporary housing for newly arrived immigrants, and finding work for them, both in the police departments and in other vocations. 25 Police in the ­political era ­were beholden to local politicians and “officers often w ­ ere recruited from the same ethnic stock as the dominant ­political groups.”26 Local politicians and reformers, most of them ­English and Dutch, required officers to “enforce unpop­u ­lar laws foisted on immigrant ethnic neighborhoods.”27 Kelling and Moore recognize that close affiliation between politicians and police not only meant widespread corruption, but also targeting minority ethnic and racial groups with regular vio­lence. Crucially, Kelling and Moore established their three eras on the basis of the “­organizational strategy” and the structuring of police agencies. Chapter 1 of this book shows that this narrow conceptualization of police provides l­ittle upon which to theorize the institution. To do so would be akin to developing a theory of health care by only attending to the o ­ rganizational structure of hospitals and doctors’ offices. Such a focus can provide only so much theoretical purchase. It is through a genealogy of the police mandate, the driving force ­behind ­those structures and strategies, that we can best understand the nature of police in the United States. In the interstices between Kelling and Moore’s p­ olitical and reform eras, Raymond Fosdick completed two studies: ­European Police Systems and American Police Systems. The latter, published in 1920, opens by noting any American with knowledge of ­European police would strug­g le to find anything comparable in U.S. police. The comparison, Fosdick opined, “furnishes slight basis for pride,” as police work in the United States is generally recognized “as perhaps the most pronounced failure in all our unhappy municipal history.” 28 More than seventy years prior to Kelling and Moore’s work on the so-­c alled ­political era, Fosdick admonished t­hose who would “charge it up generally to ‘politics’ ” and “accept the phenomenon without analy­sis.”29 Fosdick sees the ­political influence on police as an obvious observation, but instead concludes that “to believe that the unfavorable comparison between ­European and American police systems is chargeable solely to politics or to the personnel of our forces is to overlook certain fundamental divergencies in national conditions, customs, and psy­chol­ogy.”30 Most notable is that “the population of American cities is heterogeneous to an extent almost without

Preface

xiii

parallel.”31 Compared with the 211,000 foreign-­born in London and 170,000 in Paris, in the first ­decades of the twentieth ­century, New York had nearly 2 million immigrants, and about 75 ­percent of them did not speak ­English. For ­those who ­were born in the United States, hundreds of thousands of them ­were first-­generation Americans. Fosdick notes that immigrants made up the majority of the populations in nineteen of the fifty largest cities, writing “the native white population of native parents amounts to less than one-­ fifth the total population of New York and less than one-­fourth the total population of Chicago, Boston, Cleveland, Detroit and Milwaukee, while in cities like Fall River, Mas­sa­chu­setts, it constitutes ­little more than 10%.”32 When Detroit founded their first metropolitan police department in 1865 ­a fter a draft riot, an attempted lynching, and a spate of race riots destabilized the local economy, nearly half the city’s population was foreign-­ born. 33 ­Because Fosdick wrote that “the contrast can be emphasized in terms not only of race but of color,” we are cautioned against the presentism that would mistakenly lead us to believe that in the early twentieth ­century, all ­those with white skin and ­European ancestors ­were considered white. 34 Fosdick explains, “the consequences of this mixture of race and color are far reaching, particularly in their effect on such functions as policing.” 35 A ­century ­later, class control theories of police still underestimate this centrality of the color line in U.S. police. Quite simply, while the work of the MPS and U.S. police may share class control ele­ments, police in the United States is dif­fer­ent ­because of the ways the color line is fundamental to class control. If we erroneously apply con­temporary racial categories to the past, we are bound to neglect the ways policing—­even in communities almost entirely made up of ­people with ­European ancestry—­was engaged in social control through race management well into the twentieth ­century. In American police systems, Poles, ­Russians, Italians, Germans, and Lithuanians are occasionally discussed separately from whites. As Khalil Gibran Muhammad makes clear, the exclusion of some foreign-­born E ­ uropeans from the category “white” during the early ­decades of the twentieth ­century also appeared alongside comparisons between ­these groups and Blacks, which in a short time served to provide E ­ uropean immigrants with a pathway to redemption and assimilation into white citizenship.36 When we properly account for the extent to which many ethnic and immigrant groups ­were restricted from entry into the white race and the ways police ­were engaged in shoring up the bound ­a ries of that race, we can see even in the early orthodox history a necessity to center race in our analy­sis. One prob­lem with this orthodox history is that the MPS influences ­were in fact weak, experimental, and short-­lived. Quite simply, the orthodox

xiv

Preface

history is factually inaccurate. Very l­ittle about t­ hese agencies was ever stable, and throughout the nineteenth c­ entury U.S. police was “inefficient and po­l iti­cally factional.”37 In the early eigh­teenth ­century, South Carolina slave patrols went through ­little more than two ­decades of experimentation before fi­nally stabilizing. Their structure remained durable for well over a c­ entury, and it was directly influential upon the formation of police ­organizations throughout the South. Another prob­lem with the orthodox history is that it works in ­service of poor theorization of police. The origin story that begins with the MPS is maintained with competing causal explanations, such as rising crime rates, public disorder, mob vio­lence, or a combination thereof, which depict the creation and maturation of a police as a natu­r al and practical development. 38 ­Because this origin story is institutionalized, ­these diverging explanations cause l­ ittle trou­ble to t­ hose who theorize and critique police t­ oday. Once the myths are shattered, however, theories built on them lose their moorings. The orthodox history’s origin story tells us l­ittle about the role of police in creating and maintaining a specific kind of social order. Police seemingly appear within a preexisting order, fulfilling a functional imperative for solving one or several disturbances of that order. Just as Mark Neocleous soundly refuted this idea in an Anglo-­European context, the pre­sent volume ­w ill do the same for the colonial context, explaining that the police mandate was first articulated in the earliest slave codes, before African chattel slavery was even the primary source of ­labor in the South, and that the police mandate created the very first U.S. police in the form of slave patrols. Before having a force dedicated to fulf illing the police mandate, the militias in all the colonies w ­ ere charged with that responsibility. White citizens ­were expected to aid or face costly punishment. The South was far ahead of the North in making the transition to a dedicated police force, but in both contexts, when the militia’s par­t ic­u ­lar remit and physical presence was too remote to ensure the security of the internal racial order, all whites w ­ ere summoned to aid. Only ­later ­were ­these responsibilities handed over to newly created organizations, which nearly always took their personnel and ­organizational structure from the militias. A favorable result of the orthodox history is that it highlights a break from quasi-­police institutions like the constabulary. At best, this orthodox history is told as a story of class control, where police ­were created to manage the dangerous classes. In this version, unlike the constabulary, modern police w ­ ere autonomous from the judiciary and founded to respond to the exigencies of cities with increasingly large, dense, and diverse populations of workers competing over jobs and occupations. They w ­ ere police ­because they fulfilled a preventive function, whereas the constabulary ­were officers of the

Preface

xv

court who responded post facto. At worst, ­these histories eschew causal explanation entirely, instead providing celebratory stories lauding police as a mark of social pro­g ress, an arm of the state that purportedly restored order to cities whose security was threatened by per­sis­tent disorder. Th e Police L aw of S lave ry and the Slave Pat rol s As is established in chapter  1, the orthodox history of police is overly preoccupied with o ­ rganizational analy­sis of so-­called modern police agen39 cies. To accommodate the unique character of policing in the United States, attention is instead shifted to the origins of a police mandate that gave rise to vari­ous mobilizations of the state and the white citizenry. Through attention to slave laws, the use of the militia to police “domestic enemies,” and the creation and activities of the slave patrols, we see how prob­lems relating to order and security ­were defined in racial terms and how the solutions w ­ ere defined in terms of routine, proactive policing by white citizens, both in their private capacities and in fulfilling their public duties in the militia and slave patrols. The earliest slave codes defined slavery and race relative to one another. Slave codes regulated the trade in, and owner­ship of, slaves, but also the coercive control of the slaves themselves. Just as impor­tant as who could— or could not—be legally enslaved, was who would—or would not—be legally compelled to engage in the coercive control of Blacks.40 In dif­fer­ent places and times, slave law compelled private citizens, the militia, and newly created slave patrols to fulfill the police mandate—­usually concurrently in this order as racialized chattel slavery was more deeply institutionalized. In practice, the distinction between ­these three bodies was often more abstract than ­actual. As is the case with all law, slave codes do not reflect reliable practices. ­These laws set formal standards and reflected the worldviews of the planters who composed the colonial assemblies and wrote their laws. As Thomas J. ­Little observes, “their expectations, fears, and anx­i­eties are closely woven together in the statutes.” Slave laws w ­ ere not consistently enforced, but they are nonetheless a “historical fingerprint impressed upon the colonial landscape by the white ruling class.” 41 Despite the prevalence of the orthodox history of police, histories of the slave patrols are not always ignored or relegated to the margins. The most thorough secondary historical sources that address slave patrols take one of  two approaches. The first, typified by Sally Hadden’s magisterial text, Slave Patrols: Law and Vio­lence in ­Virginia and the Carolinas, treats southern slave patrols as separate institutions from so-­called modern police in the North.42 Hadden deliberately avoids making connections to other forms that policing

xvi

Preface

took in the United States. Her book has gathered worthy attention not only ­because it is a masterwork in American history, but also b­ ecause it is the only book-­length study of the slave patrols published in this ­century, joining one other major work, which was published in 1914. This ­earlier work, H. M. Henry’s The Police Control of the Slave in South Carolina, was written as a dissertation at Vanderbilt University, and served as a major source for Hadden’s book. Hadden established that the slave patrols w ­ ere no mere ad hoc solution by government to capture bonded workers who fled their masters. They w ­ ere the first institution of the state that brought together whites from all stations to work on a common cause: the suppression of Black rebellion. Both works focus on the structure and activities of late eighteenth-­and early nineteenth-­century patrols, moving quickly past their origins, which is the sole focus of this book. Recent work that attempts to integrate the slave patrols into the historical arc of U.S. police frequently references a 1988 article in American Journal of Police by Philip L. Reichel. His is a second approach taken in the history of slave patrols.43 Borrowing the concept from Lundman, Reichel describes slave patrols as a “transitional police type” that served as a “bridge” between the informal, ad hoc duties performed by constables, day and night watches, on the one side, with “modern types” on the other. With the exception of the slave patrols—­who in their practical work also fulfilled some of ­t hese responsibilities—­responses to property and violent crimes w ­ ere performed by watchmen, which also included reporting fires, managing runaway animals, helping in f­amily emergencies, and lighting lamps to illuminate public areas a­ fter dark.44 If the watchmen witnessed a crime taking place, they did l­ittle more than raise a general alarm—­a hue and cry—­a nd then assisted private citizens who ­were expected to respond. Their numbers w ­ ere few and their methods informal. The watch performed no detective work and the constabulary could be aroused to serve warrants a­ fter private citizens brought evidence of a crime before a magistrate. This separation of the watch, the slave patrols, and police obscures that in certain settings ­t hese are often mostly abstract, analytical distinctions. The o ­ rganization that policed and surveilled the slave population in Charlestown, enforcing a pass system and curfew laws that applied only to slaves, was referred to by slaves as the “pattyrollers,” but was formally named the Town Watch.45 Reichman relies on Lundman’s typology of police, where “informal police” are characterized “by community members sharing responsibility for maintaining order.” 46 However, Reichel explains t­hese types are “typical of socie­ties with ­little division of ­labor and a g­ reat deal of homogeneity.” 47 Socie­ties with varying population sizes and degrees of complexity ­going back centuries have distributed the same tasks assigned to the night watches of the American colonies. Policing in the colonies began with

Preface

xvii

“community members sharing responsibility for maintaining order.” 48 This remained a core feature of policing for centuries in the United States, well beyond the creation of the “modern type” in northern cities. Further, well before their founding, ­there was already considerable heterogeneity and highly divided ­l abor. ­Because Reichel places slave patrols in the intermediary “transitional” position between informal and formal police, he affirms a typology that is not appropriate in this national context. Reichel’s research was guided by a specific question that ­limited his findings from the outset. He asked ­whether slave patrols ­were “precursors” to “modern policing,” and so treated them as something other than modern police. Similarly, historians ­were once accustomed to asking ­whether the plantation system was a “precursor” to “modern capitalism.” Du Bois established at the turn of the twentieth ­century that the plantation was the first and most impor­tant component of the early cap­i­tal­ist system, and that the slaves who worked on ­those plantations ­were ideal examples of proletarians. Similarly, rather than a separate institution preceding modern police, the slave patrols ­were modern police. My interest in placing history and critical theory of police in conversation with criminal justice and police studies is what drove me to teach in ­these areas in the first place: for all the fundamental deficiencies and prob­ lems with t­hese disciplines—­not ­limited to their complicity in providing legitimacy and direction for an institution that remains fundamental to racial oppression in the United States—­this is where nearly all scholarly inquiry about police has remained for over a c­entury.49 Once circumscribed to a conservative discipline where the bulk of institutional resources are invested in police professionalization, it was all but certain that critical theory of police would remain undeveloped and that the scant attention to police history would consider l­ ittle more than its development as a civil trade.50 Recent trends in research on so-­called mass incarceration has created room in the discipline for critical studies of corrections, and attention to racialized police killings through the successes of the Black Lives ­Matter movement has created demand for critical study of police. This opens opportunities to marshal resources of the discipline while also challenging its conciliatory status quo. Recent critical theory of police has appropriately placed the institution at the center of class formation. No theorist has been more impor­tant in ­these developments than Mark Neocleous. His critical theory of police power builds on his ­earlier work on the administration of civil society and his subsequent research on the history of the police concept in France and ­England. On both accounts, his pioneering and influential work requires amendments in order to accommodate the central role played by race in U.S. police. This book applies methods similar to Neocleous’s, by mining the institutional history of police, the origin and development of ideas about social order and

xviii

Preface

security, and their deployment in class formation. As in Neocleous’s work on police, the approach employed ­here does not often involve original historical research. Instead, through using some primary texts and a reading of revisionist histories of the colonial and antebellum eras, this book builds a new critical theory of police that is appropriate to the unique national contours of the United States. Though Joel Olson was po­liti­cally involved for d­ ecades in community ­organizing against police vio­lence, his theoretical work rarely touched on the topic. Nonetheless, his work—­and that of his primary interlocutor, W.E.B. Du Bois—is felicitous for the subject at hand. Thus, the use of Olson’s p­ olitical theory of race is more one of application, whereas the treatment of Neocleous’s critical theory of police power is more one of adaptation and amendment, making necessary adjustments so that the power of his incredibly useful theory can go furthest in analyzing U.S. police. The result of this synthesis is a new abolitionist theory of U.S. police. The abolitionist aspect of this theory has four influences. First, it builds on an analy­sis of racial oppression fostered by the abolitionist movement of the late eigh­teenth and early nineteenth centuries. Second, it acknowledges the influence of historians like Noel Ignatiev, Theodore W. Allen, and David Roediger, whose work informed a p­ olitical and intellectual movement that took the name “new abolitionist,” was associated with the journal Race Traitor, and called for the abolition of the white race. Third, though rejecting approaches to police based in an analy­sis of the so-­called carceral society, where the primary purpose of police is too often treated as ­little more than to fill prisons, it takes some inspiration from the intellectual and ­political movements to abolish prisons. Fi­nally, it draws from and is in conversation with a new radical movement to abolish police. ­A fter the killing of George Floyd Jr. at the hands of Minneapolis Police Officer Derek Chauvin, the police abolition movement earned unpre­ce­dented public attention through a wave of protest and direct action around the globe. McDowell and Fernandez argue that “a practice of radical abolition offers the most enduring lesson and greatest promise for ­people organizing to eliminate policing in the pre­ ­ sent moment . . . ​ this promise stands on: (1) aiming directly at the police as an institution; (2) dismantling the racial-­capitalist order; (3) adopting uncompromising positions that resist liberal attempts at co-­optation, incorporation, and/or reconciliation; and (4) creating alternative demo­cratic spaces that directly challenge the legitimacy of the police.”51 An abolitionist theory of police holds the assumption—­substantiated by critics of racial capitalism—­t hat the cap­i­t al­ist economy of the United States has always depended on a racial social order. It also defines police as state-­ certified vio­lence used for the purpose of reproducing that order. Part I

Preface

xix

provides the theoretical bases for and implications of ­these positions, and the remaining chapters provide a historical grounding for them. The chapters in this volume employ the use of long quotes, particularly from primary sources and historians whose language is revealing of the analytic purchase they provide. In both cases, spelling and capitalization are kept as in the original, without notation of archaic or misspelled words, and without modernizing or converting to American ­English conventions. I capitalize “Black” when referring to ­people of African descent, but do not correct or call attention to authors’ who opted other­w ise. U ­ nless specified in a par­t ic­u ­lar context, my use of “citizen” and “citizenship” do not pertain to contemporaneous ­legal definitions, but rather to general inclusion in the polity. This book provides no significant analy­sis of the role played by gender. The sources I rely on provide ­little to build on during the par­t ic­u ­lar period covered, and gender in the early colonial era is beyond the scope of my expertise. I accept this limitation and hope this oversight can be corrected by more capable theorists who can join in conversation. Where “police” references the police concept or the police institution, I use it in its singular form. Readers accustomed to verbs that agree with “police” as a plural subject or to seeing “policing” used are likely to find the phrasing awkward. I invite the reader in such moments to take t­hese as opportunities to acknowledge the significance of this shift in language.

Race and Police

Introduction

In ­England’s Atlantic colonies during the late seventeenth ­century, the institutions of race and police ­were created together and defined one another. Race determined who could and could not be owned as property and who could and could not be a citizen. A color line divided slave and citizen in a society that had never before had po­l iti­cally or culturally meaningful categories that contained all members of ­those with one color of skin and excluded ­others. Just as citizenship was being defined along ­these racial lines, all citizens ­were legally conscripted and socially expected to engage in the work of policing all ­those who could be legally enslaved. Our peculiar institutions—­slavery, race, and police—­share the same origins and ­were developed to accommodate the same crises of production and insecurity. Faced with a l­abor shortage and declining commodity values in the late seventeenth ­century, the colonies increasingly relied on slave ­labor to secure their f­uture. In d­ oing so, they exponentially increased the importation of enslaved Africans, creating a population of social enemies of growing size and proportion, whose very presence provoked constant fears of insurrection. In operation, ­these peculiar institutions remained fundamental to class formation for centuries. The development of a critical theory of U.S. police that can fully accommodate this history and its enduring significance is challenged by a paucity of research on the earliest history of police. Developing this theory is troubled by broad a­cceptance of an orthodox history riddled with errors and mythologies. To correct t­hese errors in ­service of a critical theory of police power, this book provides an account of the formation of the police mandate and the early activities to fulfill this mandate in four E ­ nglish colonies. ­Virginia was the first permanent colony on the mainland where a slave society developed. Barbados followed shortly b­ ehind, and directly influenced the ­political economy and law of South Carolina, the first mainland colony with a dedicated police force. New York, the only slave society in the North, developed slave laws, fears of insurrection, and methods of controlling slaves that mirrored ­t hose of ­Virginia. Together, ­t hese four colonies demonstrate that in the latter half of the seventeenth ­century, economic 1

2

Introduction

necessity drove the colonists to adopt a system of chattel slavery and a method for controlling slaves that would come to define the peculiar forms taken by race and police in the United States. While historiography on colonial police is ­limited, we are fortunate to have a wealth of resources on the early history of slavery and race. With their aid, this book offers a critique of and amendment to extant critical theories of police power through a reading of slave law, materialist histories of slavery, and the history of slave patrols, with the goal of placing them in conversations with each other that have not yet been fully explored. This is a conversation  structured around an analy­sis of an assemblage of primary documents and secondary historiography that elucidate the early history of racialized chattel slavery. ­These sources provide a wealth of information about the origin of the police mandate in British colonial Amer­i­ca, allowing us to fill in gaps in the history of U.S. police and thus develop a critical theory appropriate to a fuller picture. Properly accounting for the origins of police in the United States requires more than tacking on the history of slave patrols to the widely accepted history of the founding of police. A history up to the task of informing a critical theory of police appropriate to the United States needs more than the s­imple addition of information; instead, it demands an explic­itly materialist method that attends to the role of police in class formation and class conflict. Walter Benjamin’s comparison of historicism and “materialistic historiography” helps distinguish the method for which the pre­sent inquiry calls. The former uses an additive method that “musters a mass of data,” is satisfied “with establishing a causal connection between vari­ous moments in history,” and lacks a “theoretical armature.”1 Materialistic historiography, rather, “is based on a constructive princi­ple” and is written by t­ hose who see it as their “task to brush history against the grain.”2 Benjamin’s characterization of historicism as the product of “empathy with the victor” that “invariably benefits the rulers”3 certainly describes the main current of the orthodox history of police. A materialist account requires a ­wholesale rejection of the orthodox history and should, as in any materialistic historiography, be attuned to “the tradition of the oppressed” that “teaches us that the ‘state of emergency’ in which we live is not the exception but the rule.” 4 Such an approach would be bound to reject the assumption that race has always existed or that it already existed prior to the settlement of the colonies. Not only is this assumption factually inaccurate, as archaeologist Katherine Howlett Hayes shows, “our misconceptions of racial histories are not simply products of con­temporary attitudes; such misconceptions ­were also deliberately fostered in the past, by colonial authorities, settlers, and government agencies.”5 An enduring racial order—­ and a police that produced and upholds it—­that continued beyond the abolition of slavery is grounded in a permanent state of emergency originally

Introduction

3

produced by “that old fear of insurrection,” which James Truslow Adams describes as being “replaced by the new fear of the now uncontrolled negro” ­after their emancipation.6 The history of police is also a history of class formation. The slave patrols ­were necessary both to the formation of the U.S. proletariat and to the creation of a peculiar conception of race that fragmented the working class along the color line. That fragmentation has been remarkably successful at diminishing class antagonism, all too often turning members of the working class with E ­ uropean ancestry against ­those with African heritage. Race and police are the peculiar institutions that together have always maintained the temporally specific nature of class divisions in the United States. Through a materialistic understanding of ­these origins, t­ hose who are committed to ending class society ­w ill be better armed. An account of history that learns from the traditions of the oppressed, Benjamin claims, ­w ill allow us to “clearly realize that it is our task to bring about a real state of emergency.” 7 Th e Use of Hi story for C riti cal Th e ory We need a heterodox history of the origins of police, and not merely to correct for inaccuracies. The goal is not to satisfy a positivistic demand to set the rec­ord straight for its own sake. The reason we need a retelling of the history of police can be established through an understanding of the use of history. Benjamin’s “materialistic historiography” is a turn of phrase, adapting the term historical materialism, which Friedrich Engels explains as a “view of the course of history which seeks the ultimate cause and the ­g reat moving power of all impor­t ant historic events in the economic development of society, in the changes in the modes of production and exchange, in the consequent division of society into distinct classes, and in the strug­g les of ­t hese classes against one another.” 8 Historical materialism places class strug­g le as the engine of history, which Marx and Engels contrasted with a version of Hegelian idealism that sees history as driven by successive ideas. Engels explained that by materialist he means to emphasize that “the ultimately determining ele­ment in history is the production and reproduction of real life.” 9 As George Plekhanov insisted, we should explain “the activity of social man by his needs and by the means and methods of satisfying them, prevailing at a given time.”10 Materialistic historiography is the writing of history with production and reproduction not merely as central concerns but as its center of gravity. Materialistic historiography not only presumes class strug­g le; it is written from the standpoint of the subordinated class. Historicism tends to shore up orthodox histories ­because it empathizes with the victors and rulers.11 A materialist account of history avoids orthodoxy b­ ecause it is alert to the ideological work of normalizing class relations. A heterodox history of

4

Introduction

the origins of our peculiar institutions—­white citizenship, Black slavery, and police—­should instead seek to demystify class relations, showing the ways ­these institutions formed the basis for, and guarded against, the revolutionary potential of class conflict in colonial Amer­i­ca. ­These peculiar institutions did not preexist the ­English colonization of North Amer­i­ca, and neither ­were they preordained. C.L.R. James warned that “If you do historical and economic analy­sis without being aware of . . . ​ the dominant significance of the strug­g le of classes based on that economic analy­sis, you end by looking upon and painting the ­actual state of events as inevitable.”12 Though not inevitable, crises of production and the conflict of classes in the early colonies defined prob­lems and narrowed the range of solutions available to the nascent cap­i­tal­ist class. In his The Eigh­teenth Brumaire of Louis Bonaparte, Karl Marx cautions that even though history is a product of ­human activity, it is not made ­u nder chosen circumstances, but rather “­under circumstances directly encountered, given and transmitted from the past.”13 History can show us both that social structures are durable and constraining and also that ­others have found ways around and through ­those structures. Michel Foucault explained the role of history to the critical theorist is in showing that what exists now has not always been. T ­ hings that seem natu­r al or a product of necessity can be shown to have emerged from a “network of contingencies.”14 Crucially, “since ­these ­things have been made, they can be unmade, as long as we know how it was that they w ­ ere made.”15 Where the historicist sees history as a mass of stories piled up at our feet begging for redemption, the materialistic historiographer finds tales of strug­g le against and, occasionally, victory over past rulers and the o ­ rders they maintained.16 ­Those ­t hings that ­were once seen as necessary ­were dismantled, and historiography can play a role in thinking through how we might proceed to change the world. At the same time, desires to find in the past a blueprint for the f­ uture are bound to result in the perversion of the past and to fail the f­uture. Friedrich Nietz­sche provides a warning about the use of what he called “monumental history.” Such an approach to history is often taken by t­hose who fight against ­g reat odds and search history for “models, teachers, and comforters” when they cannot be found among their contemporaries.17 ­These stories may be inspiring and might soothe ­those doubts over ­whether any success in their strug­g le is even pos­si­ble.18 ­Others have overcome such ­g reat odds. But monumental history cannot provide opportunities for imitation, as “it w ­ ill always have to deal in approximations and generalities, in making what is dissimilar look similar; it w ­ ill always have to diminish the differences of motives and instigations.”19 While history cannot always tell us how to change the world, it does provide us with evidence that we can change the world.

Introduction

5

Some historical materialists have sought to turn history into a science not unlike the natu­ral sciences. They neglect Marx’s cautionary note that “­there is no royal road to science, and only t­hose who do not dread the fatiguing climb of its steep paths have a chance of gaining its luminous summits.”20 Materialism does not provide a map of the terrain. The greatest Marxist scholars of race have taken this to heart. Oliver C ­ romwell Cox writes that “at best, Marxian hypotheses are ‘servants, not masters.’ ” He said of his own study what could be said of this one: “If . . . ​parts of this study seem Marxian, it is not ­because we have taken the ideas of this justly famous writer as gospel, but b­ ecause we have not discovered any other that could explain the facts so consistently.”21 C.L.R. James finds the same approach in the work of W.E.B. Du Bois, who “­d idn’t bring the Marxist conclusions to apply to the material” but instead “used the material and saw that only the Marxist analy­sis could fit.”22 Critical theory’s use of history may owe as much to Friedrich Nietz­ sche’s critical method as it does to Marx’s historical materialism. Nietz­sche despised the writing of history for its own sake. History should stand not in the ­service of pure knowledge, but of life.23 History is not a science, but rather is a tool. The point of overlap between historical materialism and Nietz­sche’s critical method is found in the princi­ple that underlies Marx’s famous eleventh thesis: understand the world in order to change it. For Nietz­sche, history belongs to ­those who are suffering and in need of emancipation. 24 He writes that “only he who is oppressed by a pre­sent need, and who wants to throw off this burden at any cost, has need of critical history, that is to say a history that judges and condemns.”25 For Nietz­sche, history allows us to understand the pre­sent and “to desire the ­f uture more vehemently.”26 Critical history can “fire [our] courage to go on living and . . . ​hope that what [we] want ­w ill still happen.”27 A Critical The ory of O ur Peculiar I n stituti on s In British colonial Amer­i­ca, race and police ­were founded out of the same crises of production and security, they took on forms not yet seen, and they remained peculiar. Part I of this book provides a critical theory of police power appropriate to this context, one that is grounded in the genesis of ­these peculiar institutions. If we want to know what race is, and if we want to avoid ahistorical abstractions, we are led to ask: How did race originate and develop, ­u nder what influences, and for what purposes? The question “What is police?” becomes “What has police done and on the basis of what mandates?” The initial fulfillment of the police mandate was handled in an ad hoc manner, in most colonies for d­ ecades, yet it was nonetheless a crucial component in the fabrication of social order. One eruption fundamental to

6

Introduction

t­hese pro­cesses happened in 1680 ­Virginia, when the legislature instituted a pass system that was imposed on all Blacks and enforced by all whites—­nearly half a c­ entury before the colony founded its first dedicated police o ­ rganizations. When they w ­ ere eventually founded, they inherited a mandate that had already been formed and had already been issued to all white citizens—­the very same population that was l­ater required to serve as police. Race is a ­political, not a biological phenomenon. Social structures sharing the label race have appeared with incredible diversity in dif­fer­ent national contexts throughout the modern age. Most share a common tendency to categorize populations on the basis of phenotypes that somewhat reliably identify the geo­g raph­i­cal origins of group members’ ancestors. Like the form of slavery that produced race, in the United States race has taken on a peculiar formation. Unlike most socie­ties where race has been an enduring feature of the social order, in the United States race is defined in relation to the color line. The color line is s­ haped by a binary legacy, which Oliver C ­ romwell Cox termed “bipartite race relations,” where dark skin color and the princi­ ple of hypodescent—­represented by the so-­called “one-­d rop rule”—­a re fundamental to defining a subordinate race of Blacks.28 On the other side of the  color line, a cross-­class alliance among ­those with light skin defines the dominant race of whites. This alliance has ensured that with considerable reliability whites ­w ill act on the basis of racial solidarity, even against their class interests. In the United States, all other racial logics have been short-­ lived and transitory, with some groups who w ­ ere once classified as nonwhite now recognized as white, earning their membership through demonstrations of racial solidarity across class divisions. A primary site for the p­ erformance of this solidarity is police. The white race is characterized by a form of citizenship enjoyed by its members, which emphasizes liberty and forges affiliation with the state. One of the strongest indicators of this affiliation has been the relationship of white citizens and police. The police power is exercised through direct participation in state-­sanctioned vio­lence—in and out of uniform, with and without employment in a police agency—­for the purpose of securing the racial order and the rule of capital. When not directly fulfilling the mandate, white citizens reproduce it through defining Blacks as threats to security and demanding or endorsing the use of state vio­lence against ­these anticitizens. Contrary to the colloquial understanding of police as “law enforcement” or “crime-­fighters,” Egon Bittner successfully argues that police, in general, is not defined by the executive power to enforce law, but is rather defined by its agents having the authority to use vio­lence against citizens and noncitizens within the state’s territory. Pop­u ­lar­i zed by Bittner and variously adapted, the definition of police by virtue of its capacity to use force

Introduction

7

has become the “standard theory” in police studies.29 Carl Klockars maintains that “no police anywhere has ever existed, nor is it pos­si­ble to conceive of a genuine police ever existing, that does not claim a right to compel other ­people forcibly to do something. If it did not claim such a right, it would not be a police.”30 While police cannot be defined by the executive power to enforce law, it is imbued with a more fundamental quality of executive power: prerogative, or the discretion to use its coercive capacity in lieu of, beyond, or contrary to law. The prerogative power of the executive is characteristic of modern sovereignty, where state power may be wielded when law is absent or unclear, when it does not provide sufficient direction, or even when law may be an impediment to fulfilling the state’s mandate.31 The obsession over “security” in con­ temporary liberal democracies and their governments’ willingness to grant unchecked authority to military and police in its name is grounded in the early history of the modern state, explored further in chapter 1. Recognizing that states do not share common ends, Max Weber concluded that a universal definition of state must be means-­oriented. He found that the defining feature shared by all states is the successful claim on the mono­poly of vio­lence within their territories. 32 What cap­i­t al­ist states share in common is an end. Their mandate is to diminish antagonism between the classes and to produce and maintain a social order that facilitates capital accumulation. Mark Neocleous explains that “police as an institution has been central to the historically massive operation on the part of the state to consolidate the social power of capital and the wage form: the police mandate was to fabricate an order of wage l­abour and administer the class of poverty thereafter.”33 This universal character of cap­i­tal­ist states, however, ­w ill only take us so far in understanding the defining features and roles of police in the United States. The task of defining police is neither to find the universal qualities of police nor to highlight the common features of policing in cap­i­t al­ist socie­ ties. In The Fabrication of Social Order, Neocleous achieves ­t hose tasks, albeit through a decidedly Eurocentric approach. H ­ ere the goal is to uncover the peculiar nature of U.S. police. The specific pro­cesses of primitive accumulation in British colonial Amer­i­ca gave rise to a peculiar racial order. With more careful attention to the role of state power in fabricating and maintaining that order, we ­w ill see that along with slavery, race, and citizenship, a peculiar police institution emerged. The reference to slavery as it was practiced in the southern states as peculiar has inspired related uses of the phrase “peculiar institution.” Caution is always warranted in using slavery to make analogies. Particularly relevant to the subject at hand is use of the phrase that makes a historical—­not just an

8

Introduction

analogical—­connection to slavery. Some commentators use “peculiar institution” to emphasize the distinctive quality of institutions that facilitate persisting racial domination, and specifically that which is represented by the color line. Loïc Wacquant discusses slavery as but one among a lineage of four peculiar institutions. Slavery, along with the Jim Crow system, the urban ghetto, and what he calls “the novel ­organizational compound formed by the vestiges of the ghetto and the expanding carceral system” form a “lineage of institutions which, at each epoch, have carried out the work of race making by drawing and enforcing the peculiar ‘color line.’ ”34 T ­ hese institutions have analogous features, or—to use Wacquant’s terminology—­they have a “structural homology,” in that they all perform “the task of defining, confining, and controlling African Americans in the United States.”35 The fulfillment of ­these goals is found in the fabrication of a hyperexploited group. By referencing ­these homologous qualities, Wacquant is not merely making an analogy, as in “the ghetto is like slavery.” T ­ hese institutions w ­ ere designed to serve the common purpose of extracting l­abor and fabricating social division within the working class along racial lines, but each was adapted to accommodate continued racial domination despite fundamental social, ­political, and ­legal changes. ­Because ­these institutions share a common lineage, slavery and the ghetto reveal more than a common purpose. The ghetto has embedded within it the ge­ne­tic material of slavery—it is its offspring. David Garland refers to the death penalty in the United States, which has been abolished in all other Western nations and in roughly half of the states, as a peculiar institution. 36 Garland writes that a “peculiar aspect of the American death penalty is that it continues to operate in a racialized manner, disproportionately targeting black offenders whose victims ­were white,” and that it seems “connected to the South’s ‘peculiar institution’ of slavery and its legacy of racial vio­lence,” such as lynching. 37 Again, the reference to a legacy suggests that the death penalty is not just like slavery. Slavery is the p­ redecessor of the death penalty. Likewise, for Dorothy Roberts the death penalty can be traced to the harsh punishment of African slaves, followed by state-­sanctioned lynchings ­after their emancipation. 38 She maintains that capital punishment is one component of a criminal justice system—­a long with so-­called mass incarceration and police terror—­ that “has always functioned, in coordination with other institutions and social policy, to subordinate black p­ eople.”39 Police is part of this legacy, which began with slavery and has run through successive stages for the purposes of upholding a peculiar form of racial domination, and which has remained central to the function of capital in the United States.40 This book considers police in this same light. Police in Britain’s New World colonies originated with slavery and has been entangled with this

Introduction

9

lineage of institutions. Just as police in all cap­i­tal­ist socie­ties has been fundamental to class formation, owing to its specific history, in the United States police has always been fundamental to racial formation, fulfilling a mandate to define, confine, and control Blacks and ensure the security of racial capital. Black slavery, white citizenship, and police are peculiar institutions with shared origins and are defined in large part by their relationship to one another. Policing in the colonies was founded in the state’s concern with security and its determination that Blacks ­were a primary threat to it. The police mandate provided not just a directive to mobilize citizens and colonial resources to entice or compel them, but also was a coherent aspiration for a social order to come, an identification of what and who would threaten that order, and a set of instructions for how order is to be produced and by whom. The articulation and initial fulfillment of the police mandate preceded the formation of dedicated o ­ rganizations. It was not ­u ntil 1727 that the V ­ irginia Commonwealth passed a law establishing an ­organization dedicated to policing slaves, a delay eased by the ­earlier extension of the police capacity to all white citizens. Even when the V ­ irginia patrols w ­ ere first established, their authorization to use vio­lence as punishment was further constrained by the letter of the law than it was for individual citizens. For most of the eigh­ teenth ­century in ­Virginia, much of the concern with the capture of runaway slaves was resolved by private slave-­catchers who made a living collecting fees for returning escapees. Similarly, the ­actual work of policing Blacks to prevent slave rebellion, to assault maroon communities, and to catch escaped slaves established pre­ ce­dent for policing, whereby white citizens enacted practices that converted their fears of Blacks into the use of state-­authorized vio­lence. The racial order and the security thereof was manufactured, defended, and reproduced by authorizing all citizens to police the color line, with the understanding that this was a crucial part of what made them white. Instituting V ­ irginia’s first slave passes, the 1680 act prohibited “any negroe or other slave” to “depart from of his masters ground without a certificate from his master, mistress, or overseer.” 41 While the slave pass functioned to distinguish among Blacks who ­were permitted to travel and where, the slave’s skin color could identify which p­ eople should be given the primary attention for enforcement, that is, who could be required to produce a certificate to justify their movement. All Blacks not immediately ­u nder the control of white o ­ wners or overseers ­were suspects. The passes helped sort them out. This attention to skin color established a pattern that became central to police practice for centuries to come. In the 1680s Black slavery had not yet surpassed indentured servitude in scale, but over the course of the prior four ­decades, the ­Virginia General

10

Introduction

Assembly established unique punishments for Blacks. With the slave codes, a dif­fer­ent move was made by sanctioning the use of vio­lence by all white citizens against any Black person deemed a threat—­a nd granting to each white citizen the right to make that determination. What is characteristic of state power is not just the capacity for vio­lence, but also the ability to sanction the use of vio­lence. Weber acknowledges the a­ ctual use of vio­lence is not confined to agents of the state. Instead, “the right to use physical force is ascribed to other institutions or to individuals only to the extent to which the state permits it.” 42 The 1680 law extended the right of any white citizen to monitor the movement of Blacks and to take the life of any slave who “­shall absent himself from his masters ­service and lye hid and lurking in obscure places, committing injuries to the inhabitants, and ­shall resist any person or persons.” In the event that an escapee resisted capture, the act made it “lawful for such person or persons to kill the said negroe.” 43 This was not the first law that determined that citizenship conferred the police power, even before a formal police o ­ rganization existed. ­Earlier, in 1669, V ­ irginia passed An Act about the Casual Killing of Slaves, which states that “if any slave resist his master (or o ­ thers by his masters order correcting him) and by the extremity of the correction should chance to die, that his death ­shall not be considered a felony.” 44 The pre­ce­dent established in slave codes certified white citizens in the use of any coercive force necessary to perform the work of slave-­catching. A 1691 law renewed and further specified the ability of whites to kill any Blacks who resisted capture. Th e Search for O ri g i ns Understanding what race is and what police is requires the recourse to history, specifically attending to what happened in the period when race was not and police was not that led to their creation. What happened to create the shift from a society before race to a society with race? What happened to cause the transition from a society without police to a police state? Such an a­ ngle of approach ­toward the course of their real development helps avoid the reification that occurs when we abstract con­temporary concepts away from their material foundations and transport them to the past. Few subjects in U.S. history loom as large as slavery. The entire economic and physical infrastructure of early American settlements came to depend on the l­abor of enslaved Africans. The slave trade and the plantation system together served as the foundations for centuries of racial domination that persist to this day. ­Because race is such an enduring feature in the United States, many reasonably imagine that it has always been h ­ ere. But race is not a necessary outcome of the evolution of the h ­ uman species and civilization, and it was not a m ­ atter of g­ reat significance among t­hose who founded the first E ­ nglish colonies in the so-­called New World. Race was created through

Introduction

11

their specific pro­cesses of colonization and the creation of a kind of slave society unique to the United States. Race was made, and it can be unmade— so long as we know how it was made. Locating the origins of Amer­i­ca’s peculiar institution of racialized chattel slavery has remained a perennial concern for historians. A prodigious proj­ect in public history, the 1619 Proj­ect that first appeared in the New York Times, marked the 400-­year anniversary of the first arrival of enslaved Africans in British colonial Amer­i­ca.45 ­These twenty Africans found themselves among a few hundred ­English settlers in Jamestown, ­Virginia, the first permanent ­English settlement in North Amer­i­ca. This was the same year when the colonists established a legislature, the H ­ ouse of Burgesses, replacing what was essentially a military dictatorship. The year 1619 is certainly significant, a key moment in the development of Amer­i­ca’s peculiar institutions. According to 1619 Proj­ect lead contributor, Nikole Hannah-­Jones, the arrival in August of that year of a Dutch ship carry­ing “20 and odd Negroes” marks “the beginning of American slavery.” 46 Michael Guasco warns against ­those who would make such a leap, arguing that “when we make the m ­ istake of fixing this place in time as inherently or inevitably E ­ nglish, we prepare the ground for the assumption that the United States already existed in embryonic fashion.” 47 A system of chattel slavery and an institution of race to sort out who could be enslaved and who could not did not exist before and did not suddenly appear with the arrival of the first bonded Africans. They took generations to create. Origins need not be fixed to a specific place and time. Origination is a ­process. On the other hand, b­ ecause history is made in eruptions, we are compelled to chronicle ­these critical moments. To paraphrase V. I. Lenin: There are ­ ­ decades where nothing happens; and ­ t here are weeks when ­decades happen. Similarly, C.L.R. James said, “­there are par­t ic­u ­lar periods in a ­political situation . . . ​where it is balanced on a razor’s edge.” 48 The search for origins takes us to the points in time before ­these eruptions to uncover the chain of events that gave rise to them. Of course, as Marx observed, we cannot avoid taking “a course directly opposite to their real development,” precisely ­because all historical reflection begins ­after the fact, “and therefore with the results of the p­ rocess of development ready to hand.” 49 When the enslaved Africans arrived in August 1619, it is certain that no one in Jamestown knew we would one day assign such significance to that event. When M ­ aryland lawmakers legalized slavery in 1639 and ­Virginia l­ater followed suit, they could not have known the few Black slaves pre­sent in the colony would be the first of tens of thousands. Anthony Johnson, one of the very few Black servants in Jamestown, could never have known that he would one day own a Black slave who in 1655 would be the subject of a court ruling that established one of the first l­egal pre­ce­dents for

12

Introduction

a system of lifetime servitude, a system that would eventually enslave millions of Blacks over the course of more than two centuries. When South Carolina founded the first slave patrols in 1704, they thought they ­were creating a temporary solution, not the first dedicated police ­organization that would soon serve as a model for many o ­ thers. Assigning too much value to singular events is perhaps less dangerous than using terms or concepts that took ­decades or centuries to crystallize and apply them to the early contributions to their development. Consider two common ways that historians impose the pre­sent on the past. Peter Parish has noted that pre­sent notions of freedom and servitude provide ­little help for understanding how they w ­ ere seen in the seventeenth-­century E ­ nglish colonies.50 Many are rightly wary of talk of “wage slavery,” as the phrase suggests that working for a wage and chattel slavery are similarly oppressive and dehumanizing. On the other hand, slave law stipulated guarantees that slaves be fed and ­housed, while many waged workers ­were starving vagabonds.51 ­English indentured servants and African slaves may have occupied dif­fer­ent stations in mid-­seventeenth-­century ­Virginia, but both ­were so distant from the position of the planters who could brutalize ­either group with impunity. Planters often w ­ ere brutal to their servants, sexually abused their maidservants, and provided inadequate shelter and provisions. Eric Williams argues that white servants “had no such good fortune” to be “spared the lash so liberally bestowed upon their Negro comrades.”52 Especially in the first ­decades of settlement, indentured servants w ­ ere likely to die before their four-­or five-­year terms w ­ ere completed. Another imposition of the pre­sent on the past is found when assuming that in the eigh­teenth ­century all ­Europeans fell into the racial category “white.” While it may be appropriate t­oday, white-­skinned ­people from vari­ous nationalities and ethnic categories at dif­fer­ent times ­were unequivocally outside the category “white,” from the eigh­teenth ­century all the way through the early twentieth. During the seventeenth ­century, the category did not yet exist. The ­political pro­cesses and antagonisms that led to the creation and redefinition of this category are of utmost importance, not just for understanding race, but also the connection between race and police. Socie­ties with Slaves and Slave Socie­ties ­There is no time when some members of our species ­were not bound, forced to l­abor for ­others. Slavery has been a feature common to primitive and civilized socie­ties alike. As Orlando Patterson notes, “­there is no group of p­ eople whose ancestors w ­ ere not at one time slaves or slaveholders.”53 Many could claim both. During the colonial era, it would have been an error to use “peculiar” to suggest that the mere existence of slavery was unusual.

Introduction

13

Since the ­fourteenth c­ entury, non-­European and non-­Christian slaves made up a growing proportion of bonded laborers throughout E ­ urope. During the medieval era, while slavery slowly waned in northern E ­ urope, it remained a crucial component of economic production along the Mediterranean. The Spanish and Portuguese purchased and took Africans as captives, who they stole away to the Iberian Peninsula where they joined captive Muslims and slaves from the Black Sea and Balkan regions. In the c­ entury that followed Christopher Columbus’s landfall in Guanahani (now the Bahamas), Spain rapidly conquered Meso-­A merica and the C ­ aribbean. They established trade in slaves with Africa, first using enslaved African ­labor in Spain and then in the so-­called New World. Portugal began an even more rapidly growing trade in enslaved Africans. R ­ ussians, Slavs, Greeks, Muslims, and sub-­Saharan Africans ­were held as slaves in Italy. From a global perspective, however, slave ­owners and slaves ­were most often from the same racial or ethnic group during this period.54 Even late into the eigh­teenth ­century, nearly e­ very society recently or contemporaneously was a society with slaves or a slave society. A society with slaves is one where slavery is practiced but is “marginal to the central productive pro­cesses,” where it is “ just one form of ­labor among many.”55 In socie­ties with slaves, the master–­slave relationship is not “the social exemplar,” but is rather one among other forms of domination upon which the economy depends. In such socie­t ies, slaveholdings ­were small and “the line between slave and f­ree could be remarkably fluid, with manumission often pos­si­ble and sometimes encouraged.”56 The cruelty that slaveholders used against their h ­ uman property was not necessary for stability in such a society. Vio­lence was occasioned ­because any resultant reduction in productivity was tolerable since “their slaves w ­ ere extraneous to their main business.”57 Seventeenth-­century ­England was unusual for being neither a society with slaves nor a slave society. It had abolished all forms of slavery, except for the temporarily bound l­abor of prisoners and debtors. The first slaves in the ­English colonies in Amer­i­ca fell into one of ­those categories. The Dutch, Portuguese, and Spanish established an active trade in African slaves during the sixteenth ­century, but, as Lerone Bennett Jr. explains, “the ­English ­were late starters in this sinister drama.”58 Having abolished any remnants of perpetual h ­ uman bondage in the ­mother country during the sixteenth ­century, ­English colonists had l­ittle familiarity with law that would treat bonded workers as chattel, and E ­ nglish common law prohibited such practices. In the first d­ ecade of the eigh­teenth c­ entury, twice as many African slaves w ­ ere imported into the Chesapeake Bay than in the entire seventeenth ­century.59 Initially, as Bennett stressed, “the colonists needed l­abor. They ­were unconcerned at that point about its color or national origin.” 60 It

14

Introduction

took ­decades before lifetime chattel slavery was established in law or in common practice, though the latter preceded the former. During the first ­decades of occupation, the E ­ nglish colonies w ­ ere not even socie­t ies with slaves. Even in the earliest years, the majority of the settlers w ­ ere indentured servants, “who sold themselves or ­were sold by ­others to the colonies or individual planters for a stipulated number of years (usually four to seven) in order to pay the cost of their passage.” 61 Some servants ­were known as “redemptioners,” who paid for passage across the Atlantic with a period of bound ­labor. As Guasco notes, at first the colonists lacked “a rudimentary infrastructure for employing and managing bound African slaves,” and “in raw economic and demographic terms, the institution of slavery and the presence of African ­peoples ­were equally unimpressive and bordering on insignificant.” 62 It is easy to overstate the economic impact of slave production in the seventeenth ­century, ­because all production in any of the ­English colonies was on par with that of a small county in E ­ ngland. As Eltis finds, “all the E ­ nglish Atlantic colonies together prob­ably produced less than 5 ­percent of the m ­ other country’s national income in 1700.” 63 This was the environment when, in 1619, the first African servants arrived in the first permanent E ­ nglish colony in North Amer­i­ca. Twenty African servants arrived in the Chesapeake Bay aboard a Dutch ship and ­were traded for provisions. Like most of the ­European settlers before them, they came aboard merchant ships and w ­ ere sold by the captains or agents of the captains. Their purchasers would expect them to serve for a duration before being freed. Like other servants, they ­were purchased with public monies, became servants of the state, and w ­ ere assigned to colonial officials or private planters who ­were closely connected with the administration of the colony.64 Fast-­forward two centuries and the British colonies in Amer­i­ca ­were not just socie­ties with slaves, but slave socie­ties. Famously defined by Moses Finley, “genuine slave socie­ties” are ­those where “slavery was very solidly the base of their socioeconomic structures.” 65 By this time, slavery was the most impor­t ant ­political economic institution in colonial Amer­i­ca. All their institutions ­were “linked with, influenced by, or relied on the institution of slavery.” 66 A slave society, as Frank Tannenbaum explains, is one where slaves and slavery “changed the form of the state, the nature of property, the system of law, the ­organization of ­labor, the role of the church as well as its character, the notions of justice, ethics, ideas of right and wrong.” 67 Before slavery was abolished in the 1860s, 4 million enslaved Blacks lived in the American South. Each conservatively valued at $500, the value of the slave population amounted to $2 billion. By comparison, the assessed value of all railroads and industrial facilities would be less.68 But from the perspective of the early seventeenth ­century, this could not have been anticipated. It is more likely that

Introduction

15

settlers in Jamestown would foresee the crown abandoning the colony entirely, particularly a­ fter their population was more than halved by wars with indigenes, disease, and famine. The Early Transatlantic Slave Trade The first slaves of African descent in New Spain did not come directly from Africa but by way of Spain in 1501. King Ferdinand of Spain launched the transatlantic slave trade when in 1510 he authorized the shipment of fifty African slaves to Santo Domingo. Portugal was first to supply Spanish settlements with an enslaved l­abor force for their Atlantic colonies, especially ­a fter Spain began abolishing indigenous slavery in 1512, a ­process that took ­decades to complete, finalized by King Philip III in 1600. In 1513, Juan Ponce de Leon was the first E ­ uropean to step foot on what is now Florida, and in 1528, an African slave was the first to arrive on ­those shores—­a nd the first in North Amer­i­ca. Beginning in 1518 with the importation of 4,000 African slaves, Spain brought thousands of captive Africans to New Spain each year. By the m ­ iddle of the sixteenth c­ entury, Spain and Portugal w ­ ere far along in the colonial settlement of the Amer­i­cas, and they ­were joined by  the Dutch in establishing a lucrative transatlantic slave trade. In 1580, Portugal and Spain ­were united u ­ nder one crown, Philip II of Spain. In the following two d­ ecades, they would transport about as many Africans to the  New World as they had prior to their unification. Between the turn of the c­ entury and 1640, Spain and Portugal left Africa with well over half a million captives. The Dutch entered the slave trade in 1592, and in 1596 for the first time they brought eighty-­three captive Africans to the New World.69 Before 1636, the Netherlands brought only 3,520 slaves. In the ­century that followed, that number was multiplied nearly tenfold. With the exception of the sixty-­six slaves brought by France in 1571, and ­under a thousand in each two-­year span of 1643–1644 and 1646–1647, the nation merely dabbled in the trade prior to 1670, by which point Spain was barely involved. From then ­until the end of the eigh­teenth ­century, Spain brought less than half of 1 ­percent of the more than 7.7 million Africans brought to the New World. It was well into the nineteenth c­ entury before Spain re­entered the trade with any significant volume. ­E ngland was well b­ ehind Spain, Portugal, and Holland in its entry into the African slave trade, transatlantic commerce, and the colonization of the so-­c alled New World. William Hawkins was the f irst representative of ­England to arrive in West Africa, in Sierra Leone, in 1532. His son, John Hawkins, was the first En­g lishman to sell African slaves to the Spanish thirty years l­ater. By comparison to Spain and Portugal, John Hawkins’s initial speculation was negligible. Beginning by hijacking a Portuguese

16

Introduction

slave ship and selling its h ­ uman cargo in Santo Domingo in 1562, Hawkins’s expedition was profitable enough that Queen Elizabeth I invested in two other voyages, in 1564 and 1567, when he accumulated h ­ uman slaves both through trade in Africa and again by hijacking Portuguese slave vessels. It would be easy to exaggerate the extent of the E ­ nglish traffic in slaves during this ­century. ­England led more than one hundred expeditions to the ­Caribbean between 1562 and 1603, but only four ­were intended to profit from the slave trade.70 During the latter half of the sixteenth ­century, Queen Elizabeth I de­cided to be a late entrant to the colonization of the so-­called New World. Challenging the Spanish Empire’s dominance of the Atlantic, relations devolved into the Anglo-­Spanish War in 1585. That year, Sir Walter Raleigh established ­England’s first, though short-­lived, colony on Roanoke Island, in what is now North Carolina. For nearly two d­ ecades, just before E ­ ngland occupied Powhatan territory in 1607, the kingdoms remained at war. In the first ­decades of British colonization of the mainland, settlers had access to a surplus of ­English ­labor and lacked direct access to enslaved African ­labor, which “produced that most portentous and distinctive f­actor of ­English colonialism: of all the E ­ uropean colonizing powers in the Amer­i­cas, only ­England used ­European workers as basic plantation workers.” 71 By the ­m iddle of the seventeenth ­century, ­England’s colonies relied on the regular traffic in indentured servants and convicts from ­England and prisoners of war from Ireland. By the 1680s, when less than 7 ­percent of the population of V ­ irginia was Black, one in six w ­ ere white indentured servants.72 Prior to the seventeenth ­century, the transatlantic slave trade accounted for just over 2 ­percent of all Africans brought to the Amer­i­cas before the practice was fully abolished in the m ­ iddle of the eigh­teenth ­century. ­England’s trade in and across the Atlantic expanded ­a fter its initial and ongoing successes in the Anglo-­Spanish War of 1585–1604. Still, it was not u ­ ntil 1642 that E ­ ngland left Africa with more than a thousand slaves during a given year. By then the ­English ­were responsible for leaving the continent with a total of 3,393 enslaved Africans and the Dutch with nearly 12,000, while Spain had embarked with 582,287 and Portugal with 240,664. By 1654, ­England just surpassed the Dutch, and by the end of the ­century ­English slave ships had embarked with double the total enslaved h ­ uman cargo as had the Dutch. By 1866, more than 12.5 million had been taken from Africa. The transatlantic trade in African slaves nonetheless remained a minor source of the more than 4 million enslaved Blacks in the American South before the Civil War. The system of chattel slavery that developed in Britain’s mainland colonies and that exploded a­ fter the American Revolution was peculiar in terms of how that l­abor was supplied. Slaves imported to each of Jamaica, Cuba,

Introduction

17

and Haiti w ­ ere more numerous than t­hose brought into the territory that is now part of the United States, which imported less than half of 1 ­percent of all enslaved Africans.73 Despite receiving a paltry share of imports, as Peter Parish notes, “By 1825 the Southern states of the United States had the largest slave population of any country in the New World, amounting to well over one-­third of the total. . . . ​It is one more of the paradoxes of Southern slavery that the smallest importer of slaves into the Amer­i­cas should by the nineteenth ­century have the largest slave population.” 74 Britain’s colonial slave codes defined the c­ hildren of enslaved African ­women as h ­ uman property belonging to their enslavers. T ­ hese same laws codified the princi­ple of hypodescent, a novelty in the British colonies, where any proportion of African ancestry could allow the possibility of being fungible property and provided certainty that one was excluded from citizenship. Together, t­ hese two aspects of slave law created a peculiar mode of primitive accumulation, where enslaved w ­ omen w ­ ere bound to produce new enslaved workers through coerced sexual reproduction. This is a main reason why, unlike in Latin Amer­i­ca and the ­Caribbean, slaves in the South had an equal sex ratio. On average, an enslaved w ­ oman in the South would have twice as many ­children as ­t hose in the West Indies. Early Modern ­English Ideas about Slavery and Race In the sixteenth and seventeenth centuries, it was noteworthy if a society had an economy in which slavery was not a major f­actor. At this time, ­England was such a society. By the turn of the sixteenth c­ entury, E ­ ngland was already transitioning away from the practice. By the end of the Tudor era, a wave of manumissions and reforms freed the few hundred remaining slaves and all but eradicated the last remaining form of slavery, villeinage. In 1574 the few remaining villeins ­were freed. In this era, ­English attitudes became so hostile to slavery that when enslaved ­people of any nationality ­were brought to E ­ ngland, they would be freed as soon as they entered the country.75 When E ­ ngland fi­n ally ventured into the colonization of the so-­ called New World, their recent experience was with abolishing slavery at home, as opposed to the Spanish conquistadors, who “brought to the New World an economic and social heritage in which slavery and serfdom w ­ ere constituent ele­ments.” 76 The E ­ nglish ­were fashioning a national identity touting the liberty of its ­people—­defined in part by freedom from ­human bondage. During the eleventh and twelfth centuries, Scotland repeatedly invaded northern E ­ ngland and took many E ­ nglish as slaves back with them.77 The E ­ nglish also had experience with slavery during the sixteenth and seventeenth centuries, but most of it was by way of the enslavement of its own ­people. Guasco remarks that “­English seafarers rightly recognized that neither their whiteness nor

18

Introduction

their religion protected them from h ­ uman bondage in the Amer­i­cas and therefore worried a ­g reat deal about the likely possibility that they could be captured and enslaved should bad luck befall them on their sojourns.” 78 As Alan Gallay points out, in 1650 ­there ­were more E ­ nglish ­people enslaved in Africa than ­there ­were Africans enslaved in all of ­England’s colonies combined.79 For all of the hostility to servitude among the ­English, they made notable exceptions. In the first half of the seventeenth ­century, ­English slaveholders demonstrated a willingness to use bonded ­Europeans in their Atlantic colonies. In 1640, enslavers in Barbados held more French men in slavery than ­there w ­ ere Blacks enslaved in ­Virginia.80 In ­England, penal slavery and the vagrancy legislation that filled E ­ ngland’s jails showed that Tudor authorities w ­ ere prepared to compel the dangerous classes to work. Guasco concludes that even though “Tudor elites might rhetorically eschew the arbitrary nature of slavery as perpetual and inheritable, nothing about slavery was deemed unreasonable if individuals brought it upon themselves, if the practice served a social purpose, or if it was directed ­toward stabilizing and preserving, paradoxically, the idea of freedom in E ­ ngland.”81 For most of the sixteenth ­century, ­England lacked any concerted efforts at establishing a global empire, nor was it involved in the trade of African slaves. They w ­ ere nonetheless developing their own impressions about Africans in the so-­called New World, garnered from the stories of smugglers and pirates.82 Their attitudes t­oward Africans w ­ ere neither callous nor benevolent. As Guasco concludes, “the observations of the handful of En­g lishmen who lived among f­ree and enslaved Africans in the New World suggest . . . ​ ­there was an array of ­English experiences with, and presumably attitudes ­toward, both African ­peoples and the institution of slavery.”83 At this time, the ­English had no concept of race, and they harbored no special chauvinism ­toward Africans. Indeed, they would not have even thought of the many nations of Africans as African any more than they would have seen themselves as ­Europeans. It was only during this time that ­people in ­England began fashioning an identity of their own as ­English. Writers ­were just beginning to use “­Europe,” references to “­Europeans” ­were scant, and it would be nearly 200 years before a E ­ uropean identity was widespread.84 Over a c­ entury passed before ­English settlers would start to think of themselves as “white.” While the ideological and ­political developments that fabricated the color line drew from a history of ethnic and national chauvinism, this precursor could not have existed if ­Europeans saw themselves as sharing the same racial category.85 The E ­ nglish could not have defined themselves as biologically superior to Africans, b­ ecause they did not yet possess a language to do so. The E ­ nglish would have no more means to identify themselves with the Spanish than with

Introduction

19

Africans. A ­ fter all, an obsession over biological constitution did not yet exist in ­England. Race was a product of Enlightenment science and seventeenth-­ century religious revivals.86 Many generations would pass before phenotypically defined ideas about race began to take hold in ­European socie­t ies. Before then, some ­English commentators ­were certain that if Africans had a child in ­England, it would certainly be white, since their skin color, they thought, was only a product of climate. Founding F ­ ather Benjamin Rush believed the dark skin of Africans was the result of a hereditary skin disease. When the ­English first began exploiting African slaves in significant numbers around the turn of the eigh­teenth ­century, they had practical reasons to differentiate among Africans. Slave masters relied on unique skill sets that w ­ ere par­tic­u ­lar to specific ethnic groups. In South Carolina, rice planters sought skilled ­labor from rice-­producing regions like Senegambia. Roediger observes that “­cattle production, fishing, basketry, and maritime work all also came to be associated with specific African ­peoples.”87 In the early d­ ecades of the slave society, colonists could distinguish among vari­ous African nations and tribes on the basis of size, color, cultural, and other characteristics.88 As Peter H. Wood observes, “most white colonists would have marveled at the ignorance of their descendants, who asserted blindly that all Africans looked the same.”89 This material basis for differentiation among Africans worked against homogenizing populations spanning an entire continent. It also worked in ­favor of controlling slave populations on large plantations, where o ­ wners intentionally sought ethnic diversity among their slaves to minimize communication and camaraderie. The ­English did not define themselves as biologically superior to Africans. They did, however, see themselves as ethically superior to the Spanish. They expressed revulsion at hearing stories of the barbarous vio­lence and cruelty the Spanish meted out upon their African bondmen and the indigenous inhabitants of the lands they conquered. In the 1590s, in response to Girolamo Benzoni’s La Historia del Mondo Nuovo, a clergyman from Kent and ­future bishop of London, John King, lamented “the poore Nigrite their slave,” who, “­a fter his toile the ­whole daie under­gone, in steed of his meale at nighte, if he came short in any parcell of his taske enjoyned, they stripte off all his cloathing, bounde him hande and foote, tied him crosse to a post, [and then] beate him with wyre and whipcord, til his body distilled with gore bloud, they powred e­ither molten pitch or scalding oile into his sores to supple them, washed him with pepper and salte, and so left him upon a boarde till he might recover himselfe againe.” 90 In 1661 Edmund Hickeringill, a chaplain and pamphleteer in ­England, wrote “God w ­ ill have an accompt of the Innocent Blood of so many Millions of Indians, so barbarously Butchered by the Spaniards, and of the wrong and Injustice that hath been done unto them.”91 T ­ hese asseverations ­were intended to impugn the Spanish more than

20

Introduction

to lament for their victims.92 The ­English did express sympathy for indigenous and African p­ eoples in the Spanish Amer­i­cas, but as Guasco finds, “that was more likely to be a product of their hatred for the Spanish than it was for any real fondness they might possess for non-­European ­peoples.”93 B ­ ecause ­England and Spain w ­ ere in a decades-­long dispute that saw frequent trade and military conflicts, “the assertion that the Spanish ­were the real savages in the Amer­i­cas was low-­hanging fruit for ­English propagandists.”94 Ivan Hannaford finds ideas resembling notions of race in transformations of Hebrew genealogy provided by sixteenth-­century Hermetists and Cabalists. Their work allowed for humankind to be divided by type and, according to Hannaford, “made it pos­si­ble to contemplate, but not yet to realize, a world comprised of races.”95 The Cabalists asserted that individuals could be categorized on the basis of their eyes, nostrils, and skin. Paracelsus likewise emphasized anatomical difference, as did Vesalius, who made the crucial addition of attention to blood. Spain was the first E ­ uropean society to develop anything that resembled a biological theory of race, when in the ­fourteenth ­century it enacted blood-­purity laws to prevent economic and ­political equality between Spanish Catholics and the half million ethnic Jews in the country who converted to Catholicism to culturally assimilate and with hopes of gaining standing. Mosse explains ­these conversos may have been the first to be racially persecuted in ­Europe, but Spanish blood-­purity laws faded into the sixteenth ­century and do not serve as a ­v iable pre­ce­dent for the way race developed in ­Europe or the Amer­i­cas.96 Just as blood-­purity laws w ­ ere fading from use, theologians in the sixteenth c­ entury convinced the Portuguese to regard all Christians as equals, regardless of phenotype or heredity. In 1562 and 1572, ­these beliefs ­were codified in law.97 Though Portuguese colonists in the New World frequently disregarded t­hese laws and the princi­ples that undergirded them, they nonetheless intermarried with ­people of indigenous American and African descent and appointed them to positions in the clergy. That ­these varying ideas existed is trivial, however, as they had no consequential influence on the economic policies of ­English colonists a ­century ­later. They never established a broad consensus. T ­ here is no continuity or causal link between ­these ideas and the racialization of slavery, an economic and ­legal p­ rocess, discussed in the following three chapters. It was the practice of racial slavery that established a practical basis for the racial ideas that only ­later followed in the eigh­teenth ­century, largely an outgrowth of proslavery ideology which sought to dissuade whites from developing a favorable position ­toward nascent abolitionist views. Providing a variety of quasi-­racial ideas, pre­sent across centuries, nations, religions, and languages, does not permit us to assume this assortment served as the basis for race. ­There are

Introduction

21

insufficient grounds to assert causal connections between t­ hese ideas and the policies that birthed race as an institution. We could only make such claims by reading history backwards, portraying coincidence as necessity. The Orig i ns of R ac e i n the Pol i c e Law of Slave ry Finding the origins of race in slavery means we must begin before the colonies w ­ ere slave socie­ties.98 Part II of the book explores the creation of socie­t ies with slaves and slave socie­t ies in ­Virginia, Barbados, and New York, and through this p­ rocess provides a definition for race and formulating the police mandate. In the p­ rocess of defining slavery, the E ­ nglish established systems of slavery predicated on racial categories that became fundamental to the social order, where Black chattel slavery, white citizenship, and police ­were mutually reinforced and originated together. Court rulings and legislation passed by the ­Virginia General Assembly in the seventeenth ­century, discussed in chapter 3, reveal how the state entered into the administration of slavery and transitioned to also regulate slaves. Race was created po­liti­cally, identifying whites as self-­possessed and Blacks as chattel that could be owned, traded, and destroyed by sovereign white citizens. Conversely, despite their numbers and proportion of the population being small, ­after several slave rebellions and a spate of rumors of conspiracies, Blacks w ­ ere cast as latent insurgents, threats to both citizens and the state. A shortage of ­English l­abor, early conceptions of the E ­ nglish as lovers of liberty, and an entrenched transatlantic slave trade—­r ather than coherent racial ideas and identities—­fueled early adoption of African slavery in ­Virginia. Before constructing an economy built on a foundation of racialized chattel slavery, the ­English saw themselves as being exempt from ­human bondage.99 Colonists w ­ ere not to be slaves, and they ­were not to own them. During the first c­ entury of settlement in the Amer­i­cas, the ­English did not yet see themselves as white, nor did they have a concept of race remotely comparable to that of ­t oday. They also did not see slavery as something to which only Africans w ­ ere relegated. The E ­ nglish borrowed the term “Negro” from the Spanish and Portuguese, who first used the word in the sixteenth ­century “to describe in a nonpejorative way the black ­peoples of West Africa.” As Ivan Hannaford notes, “It was not ­u ntil the eigh­teenth ­century that [‘Negro’] was used to imply some kind of physical or m ­ ental inferiority, or as a standard m ­ easurement of beauty and ugliness.”100 Eric Williams helped us to see more clearly that the ­English created a system of racialized chattel slavery ­because African ­labor “was cheapest and best,” and that racism and white supremacy ­were “only the ­later rationalizations to justify [this] s­ imple economic fact.”101

22

Introduction

In the seventeenth ­century, ­Virginia’s settlers lacked any sense of safety. Lerone Bennett Jr. describes the early ­decades of the colony as a time when the settlers w ­ ere racked by fear, inclined “to see an e­nemy or a potential ­enemy ­behind ­every bush and in ­every shadow.”102 Slaves ­were internal enemies, and maroon communities, mostly made up of fugitive Black slaves, ­were among the external enemies that inspired the greatest concerns for the settlers. Among its first slave codes, in 1680 ­Virginia passed An Act for Preventing Negroes Insurrections. ­A fter occasional experiments with arming slaves to defend against Spanish and Native assaults, the 1680 act prohibited slaves from possessing weapons. The 1691 Act for Suppressing Outlying Slaves referenced the maroons at the outset, when reporting “many times negroes, mulattoes, and other slaves unlawfully absent themselves from their masters and mistresses ­service, and lie hid and lurk in obscure places.”103 In the early period of colonization, the only ­English colony more productive than ­Virginia was in Barbados. Its profitability was due to the more rapid transition in ­labor power from Irish servants to African slaves, a change driven by economic necessity. Sugar produced in the West Indies was a most profitable cash crop, but it required the availability of cheap ­labor. Chapter 4 provides a brief history of the creation of ­England’s first Black slave society in Barbados. As early as 1644, Barbadian law used “Negro” and “slave” interchangeably. In 1661 Barbados was the first ­English colony to pass a comprehensive slave code in a law that identified slavery as essential to the economy and Blacks as a danger to the security of the colony, to be secured against by the proactive mobilization of the entire white population to police them. Subsequent slave codes ­were developed to modify and expand the provisions of the 1661 law. Both the economic structure of the plantation economy and the slave codes went on to serve as prototypes for southern colonies on the mainland, beginning with the migration of Barbadian planters to Carolina. Unlike V ­ irginia and Barbados, in New York, E ­ ngland acquired a fully formed slave society built by the Dutch. Also unlike V ­ irginia and Barbados, New York never relied on E ­ uropean servants as a primary source of l­abor. Chapter 5 provides a brief history of slave law ­under Dutch rule and ­under ­English rule in the seventeenth c­ entury, showing that the early experience of the Dutch in the slave trade established an identification between African origin and slave status that served as a basis for an early conception of race, one ­adopted and developed in ­English colonial law. Despite the common presumption that racial slavery was an invention of the South, we find that in New York, racial slavery was institutionalized just as early as in the West Indies and the Chesapeake region. Where New York differed was not in the crystallized linkage of race and slavery, but in the lack of clarity and power of white identity, a consequence of the social and economic structure of the colony.

Introduction

23

White Pol i c e and B lac k I n surg e nts While the focus of part II is on the ­political and l­egal pro­cesses that built a racial order where chattel slavery became the core of its economy, part III looks at how the initial fulfillment of the police mandate was directed t­ oward counterinsurgency and contributed to ideas about good order and the practices of social control. From the first moments when policing was in the minds of the E ­ nglish colonists, their primary concern was with enslaved Africans. Blacks provoked fears in white citizens who consolidated their citizenship through the practical work of policing. T ­ hese laws preexisted the formation of durable, specialized ­organizations tasked with their fulfillment, and extended a general remit for their enforcement to all white citizens. Three crises led to the transformation of this mandate into the first dedicated police o ­ rganizations. The first was the economic crisis of underproduction and a l­abor shortage that led to a commitment to rapidly increasing the importation of enslaved Africans. The second was the crisis of control, founded in the practical prob­lems of an increasing slave population and the economic necessity of their mobility. The third was the crisis of security evinced in the mounting fears of insurrection, just at the moment when conflicts with indigenes and Spain stressed the capacities of the militia to secure the colonies. Though the common image of slave patrols inspires thoughts of slave-­ catchers chasing escaped slaves in order to return them to their masters, this was only a secondary concern of ­these police. Through the expressed demands on police and their routine operation, the primary mandate of the slave patrols was to prevent insurrection. In defining ­these mandates, specificity was given to the connection between white citizens and the state, and between white citizens and Black anticitizens. The color line was forged not only through racialized slavery, but through the policing by populations racialized as white of populations racialized as Black. Blacks ­were threats to the security of the state and the economy. Whites ­were tasked with defending the security of the state and the economy. For the many whites who did not own slaves but ­were nonetheless required to police them, the essentially antagonistic activity of policing severed class solidarity and bolstered racial hostilities. Whites w ­ ere bound together through the securitization of the racial order. Perhaps the only activity all whites routinely participated in together was the enforcement of an evolving slave pass system. A precursor to passports, the slave pass was more than a method used for the purposes of identification and the control of movement. It was also used for the regulation of markets, ensuring that access to markets by Blacks was only permitted for the purposes of enriching white plantation o ­ wners. The slave pass was a

24

Introduction

central technology in the policing of Blacks in the South, designed to control their movements in order to prevent ­organization of rebellion and to limit opportunities for slaves to engage in economic activity beyond producing value for their ­owners to exploit. Suppressing rebellion, disrupting gatherings, and controlling movement within and beyond plantations ­were ordinary activities of slave patrols. White citizenship, police, and security ­were wedded, but so too was Blackness, anticitizenship, and insecurity, as was made clear by the counter-­insurrectionary police mandate and the general function of slave patrols. B ­ ecause even the lowliest white citizen was involved in the work of police, it gave practical dimension to the identification of Blacks as anticitizens. Chapter 6 looks at the proactive policing performed by the first slave patrols in South Carolina and at how involvement in that work produced meaning for white citizenship and affiliation between whites and the state. When V ­ irginia was initially founded, it was a society without slaves, but Carolina was a slave society at the outset. Though Jamestown was established d­ ecades before Charles Town, South Carolina had a more numerous and dense population of slaves by the end of the seventeenth ­century. The first Carolina slave code, the Act for the Better Ordering of Slaves, was enacted in 1691. The law made it a requirement for all white citizens to capture slaves and return them to the plantation of their master. As Sally Hadden observes, this “mandated duty effectively turned the entire white population into a community police force.”104 Rather than paying citizens to police, they had a sort of negative wage, whereby failure to perform their duties resulted in a large fine of forty shillings. A ­ fter a 1696 revision to the law, all whites ­were required to apprehend Blacks, inspect passes, and whip ­those who did not possess one. This revision “protected any white person inspecting a ticket by declaring that if a slave resisted, he could be beaten, maimed, assaulted, or even killed if he resisted or took flight.”105 By 1704, South Carolina established the first official police to regulate slaves. All white citizens w ­ ere required to participate. As chapter 7 shows, ­Virginia lagged ­behind South Carolina in importing enslaved Africans and expanding the exploitation of slave ­labor in plantation production. Likewise, the colony was slower in developing slave patrols. The Carolinians brought with them from Barbados a system of slave law that defined race. ­Decades before ­Virginia had a slave patrol, white citizens ­were already enforcing the slave codes of the colony. It is of crucial importance that the police mandate was issued before the notions of white and Black races ­were fully inculcated. When patrols ­were founded in 1727, they ­were composed of all colonists of one group, and their attention was drawn to all t­hose of another. Policing gave white citizenship a practical dimension. The work of the patrols, Christian Parenti finds, “helped construct

Introduction

25

the meaning of ‘whiteness’ as violently anti-­black.” 106 In addition to this repressive dimension, t­ here was a profoundly productive aspect to this work. As Hadden explains, “serving in the patrols gave white men more than the chance to brutalize bondsmen in their community—­service meant camaraderie and social interaction with other whites.”107 ­Virginia was policing non-­whites for generations before founding their first dedicated police force. Chapter 8 details similar practices in New York, thereby exploring colonial policing beyond the slave patrols and beyond the South. If we see slave patrols as an institution of the rural South, as they are usually portrayed, we would neglect their presence in southern cities and would be disinclined to acknowledge eighteenth-­century intersections of race and police in the North. In New York we see ­political pro­cesses similar to ­those in the South, where lawmakers effectively defined the contours of a binary racial schema and a related distribution of sovereignty to white citizens. As in ­Virginia and South Carolina, ­these pro­cesses w ­ ere set in motion in response to slave r­ esistance and for the purposes of fabricating a racialized working class. During the first half of the eigh­teenth c­ entury, colonists in New York faced the looming threat of slave insurrections. Unlike South Carolina, where the slave population was larger than that of the E ­ nglish, but like V ­ irginia where settlers ­were far more numerous, New York assigned the police function to the militia and white citizens. The latter, however, proved unreliable ­because whiteness was less reliable than in the South. Though New Yorkers could be counted on to attribute a latent insurgent quality to all Blacks, they could not be counted on to cohere around a racial identity to control them. Along with the unique economic and geographic features of the city, a lack of daily racial solidarity among whites contributed to two momentous slave rebellions that took the lives of dozens of whites and laid waste to large sections of Manhattan. Describing the antebellum South, George Rawick writes that “while white p­ eople often did not feel the presence of the state, black p­ eople always did. It was pre­sent in the form of the patrollers, the local sheriffs, the operations of the Fugitive Slave Law, and potentially in ­every white person who might actually defend the laws that preserve slavery.”108 This “difference of experience with the state” provided a key definition of citizenship and slavery in the United States, and in turn an enduring relationship between whites and Blacks. Rawick asserts that “almost from the beginning American Indians and blacks ­were permanently excluded from the social contract.”109 This book explains the significance of that “almost,” showing how and when this structure of the social contract took its form. It further shows how the ­political economy of the ­English colonies in the Atlantic required this form to resolve its endemic crises and to thereby produce and maintain security.

26

Introduction

Nearly three centuries ­a fter the latest period considered in this volume, we inherit institutions of race and police that carry forward the legacy of slavery. In the words of Anthony Farley, “the color line still ­belts the world.”110 The presence of the state is still felt differently on the two sides of the color line. On one side, it is more likely to be felt with the daily, ambient presence of police cruisers, at the end of the nightstick, from the prongs of a Taser, with the bullet that lodges in a Black body. It is not on a plantation, but in the ghetto or the side of a highway. T ­ hose on the other side of the color line reproduce the public mandate for police, repeating their calls for law and order and their (only sometimes) racially coded fears of urban crime and disorder. Some of them carry their guns while conducting their neighborhood watch, ­others while chasing a single Black ­mother from a grocery store a­ fter she stole diapers and baby formula. The cap­i­t al­ist state has new ­political economic crises, but race and police remain at their core. If we know more about the origins of race and police, about how the connections between capitalism, race, and police w ­ ere fostered, we w ­ ill know more about how interdependent they are, about how an attack on one, particularly in moments of crisis, ­w ill be an attack on the ­others. ­Because of the inseparability of ­these institutions, ­there is no police without racism, no racism without police, and no capitalism without e­ ither. If we know more about the origins of ­these institutions, ­w ill also know that when one is threatened, it ­w ill mobilize the ­others to liquidate the threat. Capitalism is in crisis, and so it is no won­der that a color-­blind society that elected a Black president a d­ ecade ­later threw aside its dog whistles and plunged into an openly, violently racist culture war. It should come as no surprise that the same whites who are wielding the discourse of replacement theory are attacking the teaching of slavery and critical race theory in schools, and have lawn signs and bumper stickers declaring their unwavering support of police. None of this would be happening if the rule of capital and the racial order w ­ ere secure.

Pa r t O n e

Critical Theory of Race and Police Confusion about the role of the militia, slave patrols, and white citizenship in the development of U.S. police is bound to arise when definitions of police are narrowly conceived, lacking in specificity, or missing entirely. Before uncovering and analyzing the origins of race and police, we should be clear about what is meant by ­t hese terms, taking up the questions of what race is and what police is. If the intention is to define what an institution is, the critical theorist can turn to history to look at how the institution arose and why. What was the institution’s mandate? ­Because the intention ­here is to provide a history and critical analy­sis of the creation and maturation of ­these institutions, we are best suited to take a constructivist approach to their conceptualization, one that develops concepts grounded in their historical context, rather than beginning with and applying abstract categories. The theory developed in part I results from a synthesis of critical theories of race and police discussed in chapters 1 and 2, and from the historical study in parts II and III. Developing this theory required recursively applying it back upon the historical material to further analyze and explain it. Nonetheless, the central claims in part I could be qualified and applied to other periods. In British colonial Amer­i­ca, the development and maturation of a system of chattel slavery depended upon the creation of a police and of racial categories that protected and defined that very system of production. Black slavery, white citizenship, and police ­were created together and defined one another. At vari­ous points in our history, when t­ hese institutions encountered crises, they refashioned and reinforced one another. ­These dynamics have been at work from the end of the periods discussed in this book u ­ ntil ­today, and they w ­ ill continue ­until race and police are no longer institutions that serve as foundations for the social order of racial capitalism. The tradition of critical theory begins with Karl Marx’s critique of ­political economy, and its purview is defined by Marx’s eleventh thesis on Feuerbach: the aim is not merely to interpret and understand the workings 27

28

C r i t i c a l Th e o r y o f R a c e   a n d P o l i c e

of capital, but to develop a praxis that has potential to disrupt and surpass it. A critical theory of race and police must serve the same task. The cap­i­t al­ist mode of production was founded in a world economy built by slavery, and ­today the core of the cap­i­tal­ist world system is secured through the racial division of the working class, a security provided by police. The abolition of the rule of capital ­w ill entail the abolition of race and police, and so a critical theory of race and police must be abolitionist. The theory of race and police established in this book is abolitionist in four ways. First, it is informed by the nineteenth-­century tradition of abolitionism, both in terms of its rejection of racial slavery and in terms of its ­f anaticism. ­Here ­fanaticism is used as defined by Joel Olson, as the extraordinary mobilization of the refusal to compromise.1 Stanley Elkins criticized U.S. American abolitionists in Slavery: A Prob­lem in American Institutional and Intellectual Life b­ ecause they w ­ ere unwilling to compromise. 2 British abolitionists, he argued, ­were more effective ­because they ­were pragmatic. Though his assessment of the abolitionists as in­effec­t ive is too ridicu­lous to entertain, his identification of the character of U.S. abolitionists by virtue of this contrast, however flawed it may be, is accurate and cannot be overstated. Indeed, U.S. American abolitionists ­were zealots. Second, this theory is influenced by historians of race Noel Ignatiev, Theodore W. Allen, and David Roediger, and Joel Olson’s ­political theory of race. Their work informed a p­ olitical and intellectual movement that was partly associated with the journal Race Traitor and briefly took the name “new abolitionist” on the grounds that it was also informed by the nineteenth-­century abolitionists and b­ ecause it called for the abolition of the white race. Third, though the theory of the police state rejects approaches to police based in an analy­sis of the so-­called carceral society, this theory takes some inspiration from the intellectual and p­ olitical movements to abolish prisons. Fi­n ally, it draws from and is in conversation with a new radical movement to abolish police. This is a movement that is uncompromising in its demands to abolish the institution as a component in the revolutionary strug­g le against the rule of capital and the racial order. 3 A ­future beyond capital is a ­future beyond race and police.

C hap te r 1

The Peculiar Institution of Police

A critical theory of police cannot rely on colloquial understandings of the institution or on conventional approaches in criminal justice studies. Most common are what Carl Klockars calls “norm-­derived definitions of police,” founded in “beliefs about what police should do or are supposed to be.”1 ­T hese definitions, he argues, tell us much about the values of their authors and very ­little about police. Answering the question “What is police?” w ­ ill require carefully rejecting some accepted answers and building up a new definition. With some help from police studies, critical theorists of police, historians, and theorists of race, a more ser­v iceable definition can be built. Research on police has been mostly ­limited to criminology and criminal justice ever since they ­were institutionalized as academic disciplines. In 2000 Mark Neocleous wrote that theory of police was once well developed ­b ecause it was central to theorizing state power, but had since been consigned to criminology, where it had become “conservative, catholic, and reduced to study of law enforcement as a civil trade.”2 This claim remains relevant more than two d­ ecades ­later. 3 Though the interactions of race and law enforcement outcomes are perennial considerations in criminology and criminal justice research, the fields have produced ­little theorization of race and police, critical or other­w ise.4 The recourse to police history ­w ill help l­ittle more. As Sidney Harring notes, police history has remained part of criminology and criminal justice studies, rather than history, and often centers “on our late twentieth-­century ‘crime prob­lem’ simply read backwards one hundred years or more.” As a consequence, police history is narrow, lacks substantial intellectual content, and fails to “put criminal justice in a reasonable perspective in relationship to other disciplines or other social phenomena.”5 With the exception of the “nostalgic image of nineteenth-­century American police, few criminologists have examined the police as a historical phenomenon,” and in the ­decades since Harring’s observation, historical research has been largely abandoned by criminology and criminal justice.6 29

30

C r i t i c a l Th e o r y o f R a c e   a n d P o l i c e

As with most social science, especially in the United States, preferences for empirical research in criminology and criminal justice have left theorizing police to the humanities. Neocleous, a Marxist ­philosopher, has developed an invaluable critical theory of police power.7 He criticizes the facile history of British police that begins with the London Metropolitan Police ­Service and its purported mission to fight crime. He instead finds the origin of police in the emergence and very structure of the modern state, in ideas about good order that ­were conceived during the collapse of feudalism. Rather than controlling a working class that preexisted it, police was fundamental to its formation. The police role in class formation has repressive and productive dimensions. Early in the history of police, the “immobilizing activities” of “police sought to render disorderly ele­ments harmless,” while the “mobilizing activities . . . ​sought to fashion ­t hese ele­ments into a mobile and active workforce.”8 Police w ­ ere central to ongoing pro­cesses of primitive accumulation, creating a working class out of newly masterless men who w ­ ere among ­those first forced to sell their l­abor to survive.9 By way of example, Neocleous explains that vagrancy laws ­were used to legitimate policing of “the class of poverty,” illustrating one way that state vio­lence was intimately involved in the formation and control of the industrial proletariat. H ­ ere he draws on Marx, who explains the working class was created through primitive accumulation, namely “by the forcible expropriation of the ­people from the soil,” who w ­ ere then “turned en masse into beggars, robbers, vagabonds.” The state responded with “a bloody legislation against vagabondage,” where law “treated them as ‘voluntary’ criminals.”10 Marx quotes King James I, responsible for the first permanent British settlement in what became the United States, who decreed: Any one wandering about and begging is declared a rogue and a vagabond. Justices of the peace in petty sessions are authorised to have them publicly whipped and for the first offence to imprison them for 6 months, for the second for 2 years. Whilst in prison they are to be whipped as much and as often as the justices of the peace think fit . . . ​Incorrigible and dangerous rogues are to be branded with an R on the left shoulder and set to hard ­labour, and if they are caught begging again, to be executed without mercy.11 Neocleous’s critical theory of police power was first developed in articles collected and expanded upon in The Fabrication of Social Order. ­W hether discussing social p­ hilosophers or court cases, legislative acts or economic ­m atters, the text remains almost entirely situated in Western ­Europe. Policing in the United States is barely mentioned, the slave patrols are entirely absent, and the relationship of race and policing is only mentioned in passing



The Peculiar Institution of Police

31

when explaining racial prejudice in the use of police discretion in the con­ temporary United States and in a footnote on the West Indian working class in 1950s Britain.12 In developing his theory of state, Neocleous remains grounded in a nineteenth-­century ­English context, explaining the role of the state in the creation of the E ­ nglish working class. He provides the caveat that the par­t ic­u ­lar national contours of ­these pro­cesses are certain to shape any appropriate analy­sis, and thus the theory may require modification for other contexts. When the discourse of police first appeared in the United States, in 1779, Neocleous remarks, “it did so with its old ­European notions intact,” but then “a more l­imited vision of security” won out, one “which privileged law over politics,” an approach that “appeared to turn law into a form of sovereign power.”13 This sent the development of the police idea on a dif­fer­ ent path from that of ­European nations. As Markus Dirk Dubber explains, the police concept developed in the United States before importing E ­ uropean conceptions of police in the late eigh­teenth ­century. The ruling elite in colonial Amer­i­ca combined long-­ standing governmental techniques from ­English law with uniquely American innovations and adaptations, not the least of which came from the regulation of slaves. As such, Neocleous’s critical theory of police cannot be imported to the United States by merely overlaying a racial analy­sis. D ­ oing so is bound to result in the error made in an ­earlier Marxist critique of police, The Iron Fist and the Velvet Glove. Sandra Bass rightly criticizes its authors ­because they “subsume the issue of race ­u nder that of class, arguing that police brutality against racial minorities reflects the broader goal of cap­ i­t al ­i st repression of the working class.”14 Instead, core components of the theory require amendment. Of additional importance and influence for explaining what police is are the critiques of con­temporary police practices provided by activist-­scholars like Angela J. Davis, Derecka Purnell, Beth Richie, Andrea Ritchie, and Kristian Williams.15 Some of ­these scholars note the enduring impact of slave patrols on con­temporary police, but ­because their work is not intended to provide a thorough history or theory of this role, it is no fault that both are sparse. Activist-­scholars are also not immune to the influence of mainstream criminal justice studies and the orthodox history it perpetuates. Kristian Williams’s history of U.S. police in Our Enemies in Blue reads like a critical, abolitionist rewriting of the history in the Walker and Katz textbook discussed in the preface, acknowledging the existence of slave patrols, but ­doing ­little more than tacking it on as an autonomous addendum to the orthodox history, and relying on a definition of police l­imited to the functions and activities of police ­organizations. The goal ­here is not to criticize their work; rather, it is to provide new tools to further the critique of police.

32

C r i t i c a l Th e o r y o f R a c e   a n d P o l i c e

Notwithstanding Neocleous’s criticism of criminology, and though they neglected the e­ arlier history of slave patrols and w ­ ere not expressly critical of police, some of the central figures in police studies have developed concepts that can be appropriated in s­ervice of a critical history of police. Egon Bittner and Peter K. Manning are respected figures in mainstream police studies, and their primary intellectual endeavors w ­ ere not to critique police per se. Bittner’s police-­use-­of-­force paradigm and his demand-­side theory are both influential in the theory of police provided below. Likewise, a modified version of Manning’s concept of the police mandate is core to this analy­sis. Before placing their theories in conversation with Neocleous’s critical theory of police power, we should set aside another common approach that defines police on the basis of idealized functions of police o ­ rganizations. ­Because police studies, a subfield of criminal justice, is composed primarily of empirical research on the localized practices of police officers, it  tends to permit a more practical variation on norm-­based definitions. Instead of widely held beliefs about what police o ­ ught to be, police studies tend to define police on the basis of idealized practices of police officers and ­organizations. In ­B ehind the Shield, “policeman turned sociologist” Arthur Neiderhoffer defines police on the basis of the official functions of police ­organizations: protection of life and property, preservation of the peace, prevention of crime, detection and arrest of violators of law, enforcement of laws and ordinances, and safeguarding the rights of individuals.16 This facile definition is borrowed from none other than J. Edgar Hoover, but variants are ubiquitous in police studies. Those who traffic in the orthodox history define so-­ ­ called modern police on the basis of the functions of police ­organizations and the practices of police officers in nineteenth-­century northern cities. Richard Lundman defines police by full-­t ime ­service, continuity in office, continuity in procedure, and control by central governmental authority. Similarly, Selden Bacon claims police is defined by a citywide jurisdiction, twenty-­four-­hour responsibility, a single ­organization being held responsible for the majority of formal law enforcement, personnel paid a salary, employees being solely responsible for police duties, and by general as opposed to narrowly defined functions. Police abolitionist Kristian Williams defines police by modifying Bacon’s criteria: single ­organization, citywide jurisdiction and centralization, continuity in office and procedure, a specialized function, twenty-­four-­ hour ­service, salaried personnel, and a preventive orientation.17 Raymond Fosdick and Erik Monkkonen aimed for simpler definitions drawn from what they each saw as the qualities unique to nineteenth-­century urban police ­organizations which set them apart from the ­earlier constabulary and watch systems. Fosdick claimed that municipal police was created by the consolidation of “unor­g a­n ized day policemen” and ward watchmen ­u nder a



The Peculiar Institution of Police

33

single commander.18 Monkkonen simply differentiates modern police by the issuance of a common uniform to officers.19 All of ­these approaches accept that urbanization and industrialization ­were causative f­ actors in the development of so-­called modern police to replace “informal” police, a category to which slave patrols are assumed to belong. As Reichel has effectively shown, most of the traits attributed solely to police in industrializing cities w ­ ere exhibited in rural environments and in predominantly agricultural economies.20 Moreover, ­these studies begin by presuming a clear break in the history of police and then endeavor to find what differs between police in the two periods, without providing a rationale for the separation. Reichel’s solution to integrating slave patrols in the arc of police history is to accept the definition of the watch system as an informal, proto-­police institution, naming slave patrols as a “transitional form” between the watch and so-­called modern police.21 As with the above, this approach shares a common ­acceptance that a definition of police is l­imited to the functions of police ­organizations. In one section of The Fabrication of Social Order, Neocleous asserts, “the best way to understand police is as an activity rather than an institution, a function rather than an entity.”22 Elsewhere, he explains that police actions “are coordinated with agencies of policing situated throughout the state,” and references this “expansive set of institutions through which policing takes place.”23 This latter use of “institution” suggests that the former is in its more colloquial sense, where “­organization” could be readily substituted. Treating police as an institution in the technical sense, we are able to retain the function of police without being confined to t­ hose of municipal police ­organizations and their idealized activities. As a technical term used by social scientists, “institutions” are cultural and structural objects that produce systems, enable o ­ rganizations, and script p­ erformances through self-­activating social pro­cesses and stable designs.24 By crystallizing conceptions of prob­lems and their appropriate solutions, institutions do the work of connecting conceptions and activities, where the solutions become taken for granted through reliable communication and p­ erformances.25 When police is institutionalized, its mandate requires no constant reference and discussion, as it is automatically activated through routine ­performances and its logic infuses the discourse of and about police. Institutions emerge or develop through isomorphism, or through mimetic pro­cesses where imitation occurs, especially when o ­ rganizational technologies are poorly understood or experimental.26 The modeled ­organization provides means to naturalize the definitions of prob­lems and solutions, especially by providing “a ­convenient source of practices that the borrowing ­organization may use.”27 When in seventeenth-­century ­Virginia and Carolina the state identified Black insurrection as a prob­lem—­indeed as an existential threat—it also

34

C r i t i c a l Th e o r y o f R a c e   a n d P o l i c e

provided police as the solution. Initially the police function preceded the police ­organization, which was first performed by the militia. Where and when the militia was deemed the wrong solution, a specialized and dedicated police was created by splitting the militia into two separate o ­ rganizations, thereby creating slave patrols to fulfill a narrower mandate. The militia and the patrol ­were both staffed through conscription, and the new patrol structure was modeled a­ fter the militia’s. When the patrol failed, instead of abandoning the model, the state de­cided to expand and develop it. Its commitment to the patrol was crystallized, and so it was naturalized as the appropriate solution to the prob­lem created by Black insurgents. This was a preventive police that actively sought out insurrection plots, maroon settlements, and weapons caches to maintain the security of the colonies. In the ­later chapters, we see a similar pattern in the North. Just ­a fter the Carolina patrol was established, but before V ­ irginia created one, in 1712 New York used its militia to respond to Black insurrection. It would take over a ­century before the militia was deemed inappropriate in fulfilling the police mandate, but then it was the very same prob­lem—­r acial antagonism that threatened to fracture the social order—­which prompted the formation of a new police ­organization, one with a structure similar to the militia. While the New York City police ­were not directly modeled ­a fter the South Carolina patrols, the approach in defining prob­lems and solutions was no less isomorphic than the influences of the London Metropolitan Police S­ ervice. Violent confrontation between (mostly propertied) whites and (mostly propertyless) non-­whites threatened the security of the economy and the state, the watch systems and the militia could not direct and contain the antagonism, and the state determined it needed a dedicated police ­organization to reestablish and maintain order. If this had only happened in one northern city, it could reasonably be dismissed as coincidence, but racial disturbances in Boston, Philadelphia, Newark, Baltimore, Chicago, Detroit, and elsewhere immediately preceded demands for the formation of police. ­ These police ­organizations ­were at the very least similar in structure to the militia, and sometimes ­were created by splitting the militia into two ­organizations. Like the patrols in the South, t­ hese ­were preventive police. More police man-­hours ­were dedicated to cracking down on the public-­order offenses of the racialized working class, but controlling such petty crimes was incidental to the broader police mandate, which originated in fears of insurrection. Th e Capacity to U se Forc e The prolific and influential police scholar David H. Bayley provides a definition of police that is often employed in criminal justice studies. His is a list of functions similar to t­hose above that define police on the basis of the functions



The Peculiar Institution of Police

35

of police ­organizations. It includes public auspices, specialized functions, professionalism, authorization to use force, and nonmilitary character.28 Unlike t­hose above, his definition includes “the application of physical force within a community” as “the defining task” of policing.29 Bayley uses “police” to refer to “­people authorized by a group to regulate interpersonal relations within the group through the application of physical force,” and explains “the unique competence of police is the use of physical force, real or threatened, to affect be­hav­ ior.”30 H ­ ere he draws directly from Egon Bittner’s definition of policing that has become paradigmatic in criminal justice studies. A chapter in Bittner’s 1970 monograph, The Functions of the Police in Modern Society, has profoundly ­shaped the conceptualization of police.31 Revealed in a chapter title, “The Capacity to Use Force as the Core of the Police Role,” his definition of police is cited early in hundreds of academic articles reporting on empirical research on police. Bittner explains that “police procedure is defined by the feature that it may not be opposed in its course, and that force can be used if it is opposed. This is what the existence of the police makes available to society.”32 This definition is echoed by Carl Klockars when he writes that “no police anywhere has ever existed, nor is it pos­si­ble to conceive of a genuine police ever existing, that does not claim a right to compel other ­people forcibly to do something. If it did not claim such a right, it would not be a police.”33 Similarly, Jerome Skolnick notes, “the police exercise a practical mono­poly on the l­egal use of force in our society.”34 Though “the vio­ lence of the police is often latent or withheld,” explains Micol Siegel, “it is functional precisely b­ ecause it is suspended.”35 The capacity to use force is “essentially unrestricted,” with only a few specific limitations against vio­lence used for no other purpose than the malice or personal gain of the officer who uses it. Vio­lence is not ­limited to that required to affect an arrest, and so the ability to make arrests “is incidental to their authority to use force.”36 Looking to “the ­actual expectations and demands made of police” by officials and influential citizens, “the a­ ctual allocation of police manpower and other resources,” and the variety of expected police activities, Bittner concludes that “police are nothing ­else than a mechanism for the distribution of situationally justified force in society.”37 This aspect of Bittner’s definition of police is pre­sent in Peter K. Manning’s: police are “­those agencies that stand ready to employ force upon the citizenry on the basis of situationally determined exigencies.”38 Bittner elaborates: “police intervention means above all making use of the capacity and authority to overpower r­esistance to an attempted solution in the native habitat of the prob­lem.”39 This is clear to police officers, to the citizens who call on them, and to t­hose who are held u ­ nder suspicion by police. Bittner reminds us, “­every conceivable police intervention proj­ects the message that force may

36

C r i t i c a l Th e o r y o f R a c e   a n d P o l i c e

be, and may have to be, used to achieve a desired objective.” 40 The vio­lence of police, Seigel adds, “often need not be made manifest, b­ ecause ­people fear it and grant it legitimacy, in direct extension of the legitimacy they grant to state vio­lence, broadly—­and indeed, granting legitimacy to police is one of the most impor­tant ways ­people legitimize the state itself.” 41 The nearly total authorization for the use of force at the discretion of the individual officer means that in nearly all situations pre-­authorization from a supervisor or a magistrate is not needed to use force or make an arrest. Neocleous rightly finds that the transition to warrantless arrest marks a sea change in police. Before this transition, the constabulary ­were mere officers of the court who served warrants to bring suspects before a magistrate. The court would then decide ­whether to prosecute. This meant that “arrest was originally the culmination of the criminal investigation rather than the start of it.” 42 The first slave codes in the seventeenth ­century granted this power to all whites to police all Blacks. They could stop any Black person, ­free or slave, u ­ nder any pretense, arrest them on any suspicion, and kill such person for any ­resistance. The state assured citizens of their impunity in all of the above, and in almost all cases would compensate the slave ­owner for the loss of property. The first patrols w ­ ere only slightly more ­l imited in this capacity. Unlike the patrols, the practices of the watch system and constabulary w ­ ere far more l­imited in the coercive control of whites, and neither exhibited full police capacities. Their mandate was not expressly the prevention of crime and disorder, but to initiate response post facto. While Bittner’s means-­based definition of police is regularly referenced, often neglected is his explanation of “how the police ‘found themselves’ in this unenviable position.” 43 His answer brings Bittner very close to another aspect of Neocleous’s theory of police power. Bittner claims the police capacity is founded in “the sustained aspiration to install peace as a stable condition of everyday life.” 44 This is, essentially, the invocation of security. Neocleous insists that to speak of the police is to speak of the state, and vice versa. Following Max Weber’s means-­based definition of the state as that which successfully claims a mono­poly on coercive force begs the question of ends. Why does the state make such a claim? Neocleous’s answer is security. The Police M andate Peter  K. Manning’s concept of the police mandate is central to police studies and is built on the broader concept of the professional mandate, which involves “a series of tasks and associated attitudes and values that set apart a specialized occupational group from all ­others,” and may “include a claim to the right to define the proper conduct of ­others ­toward m ­ atters concerned with the work.” 45 Manning’s definition of police ties together the capacity to



The Peculiar Institution of Police

37

use force with his conception of the mandate in a way that is particularly conducive to an institutional analy­sis. He writes that police is an “instrument of public policy” that works through “the application of force to everyday affairs” and reflects “the interests of ­those who control and define situations requiring the application of authority,” 46 as opposed to “the striving for justice, or equal treatment ­under the law.” 47 This conception of police invites questions over which interests are reflected in the mandate and whose definitions of prob­ lems and solutions w ­ ill control the application of authority. Jerome Skolnick recognizes this when he rejects an understanding of police “as an immutable conception or form of o ­ rganization,” instead recommending it be thought of “as an idea and a structure s­ haped by time, by social conditions, and above all by the interests and values of ­those who exercise or have access to ­political power.” 48 The police mandate is defined po­liti­cally. H ­ ere the relevant interests are found in “the patterns of influence upon decision making that are endemic in segmented class socie­ties.” 49 Manning recognizes “­there is ­little question that public policy is everywhere ­shaped by economic elites and disproportionately reflects their p­ olitical and social interests.”50 According to Jean-­ Paul Brodeur, Bittner’s police-­use-­of-­force paradigm raises the question: “must all definitions of police through their use of force be based on demand?”51 Responding to Bittner’s “demand-­side theory,” Brodeur writes, “such a question cannot be answered outside a normative framework that spells out what values are to be respected by the police.”52 More appropriate than answering “which values?” is “whose values?” Bittner acknowledges that this normative framework belongs to and emanates from the power­ful. Brodeur complicates this further, noting, “­there would seem to be two kinds of demands for coercive policing: the state demand, which accounts for the birth of the police as an institution, and the public demand, which accounts for day-­to-­d ay mobilization of individual police intervention.”53 Hardly a Marxist himself, in addressing “the birth of the police as an institution,” Bittner nonetheless echoes Marx in writing that “the police ­were created as a mechanism for coping with the so-­called dangerous classes” and “thus to contain the internal ­enemy.”54 He further elucidates the state demand by quoting Allan Silver, who claims the objective of police is “the penetration and continual presence of central ­political authority through daily life.”55 ­These claims are remarkably similar to Neocleous’s theories of ­political administration and police, where police is the institution of the state intended to penetrate civil society in order to administer it and thereby produce and maintain order. He remarks that social order “is hardly threatened u ­ nless ­there is a force which appears to possess the potential of undermining it, and as bourgeois social relations began to stamp themselves across the face of society the major threat appeared to be the labouring poor.”56

38

C r i t i c a l Th e o r y o f R a c e   a n d P o l i c e

The phenomenon of “calling the cops” is invoked by Bittner as an idiom for public demand and demonstrates the phenomenon in several vignettes illustrating how the capacity to use force defines police. Even though calling the cops is “more frequent in some segments of society than in o ­ thers,” Bittner claims “­there are very few ­people who do not or would not resort to it ­under suitable circumstances.”57 Bittner clearly recognizes that U.S. society is stratified by class and race, and so his use of the “calling the cops” idiom is hardly intended to suggest that all members of the public have influence on police activity. He adds: “It is exceedingly rare that policemen make decisions that have a direct and lasting effect on the circumstances of existence of members of the ­m iddle and upper classes. This segment of society experiences police presence mainly in the form of traffic control and similar low level s­ervice. But for the rest of the community—­the poor, the powerless, the ghetto, the slum dwellers, the devious, the deviant, and the criminals—­the policeman is a figure of awesome power and importance. What he does or fails to do literally shapes their destiny on a day to day basis.”58 Given that space in residential areas is segregated by class and race, does “the demand for policing the predatory ele­ments among the poor and the powerless originate mainly from t­hese very segments of the population?” Brodeur replies: “This line of reasoning is problematic in several ways. First, it implies that the poor are si­mul­ta­neously the trigger of selective enforcement and its victim. Second, it overlooks that p­ eople calling for the police make a critical difference between forcibly ending a crisis (stopping a husband from beating his wife) and following up on the coercive implications of the crisis (arresting and charging the husband). According to my own research, many demands focus on the short-­term provisional resolution of the conflict, while rejecting its long-­term judicial consequences as enforced by the police.”59 This distinction highlights the regular function of the police intervention, where, in Bittner’s words, officers call upon their “capacity and authority to overpower r­ esistance to an attempted solution in the native habitat of the prob­lem.” 60 Police are called to respond to all sorts of situations that “require remedies that are non-­negotiably coercible.” The ability to supply this remedy is “what the existence of the police makes available to society.” 61 ­People call the cops ­because the state has monopolized the application of coercible remedies. For Bittner, in most situations neither citizens nor police prefer for t­hese remedies to end in arrest, and on t­hese grounds dismisses definitions of police as law enforcers or crime fighters. Police are prob­lem solvers who rely on the broad recognition that they may use force to solve prob­lems, an authorization seldom used but always at their disposal. They are called upon to resolve all sorts of prob­lems that have l­ ittle or nothing to do with criminal codes, and for Bittner that is simply “­because more appropriate methods of h ­ andling prob­lems have not been developed.” 62



The Peculiar Institution of Police

39

Perhaps this is the case in fulfilling the public mandate, for t­ hose who “call the cops.” For Bittner, the existence of police provides the possibility of resolving situational crises, but it is the state mandate that gives police its reason for existence. At the level of establishing police priorities (e.g., the geographic distribution of police personnel for targeted enforcement), the public demand and state demand do not act autonomously. The state acts as a mediator between the public and the police, filtering out whose demands and which demands ­w ill influence the police mandate. As Bittner recognizes, “the more serious aspects of police work . . . ​center around the lives of ­people whose voice is ­either not heard or does not count on the forum of public opinion.” 63 Individual calls for s­ervice may receive a police response, regardless of the socioeconomic status of the caller, but status certainly impacts w ­ hether one can influence police priorities more broadly. Though Manning does not define police on the basis of the enforcement of law, he recognizes that “the police are directly related to a ­political system that develops and defines the law,” which he claims is “a product of interpretations of what is right and proper from the perspective of dif­fer­ent po­liti­cally power­ful segments within the community.” 64 Th e O rig i ns of the Pol i c e Mandate The police mandate tells us about the content of, to borrow Bittner’s phrase, “the sustained aspiration” that mobilizes the institution, about the kinds of ­t hings police ­w ill define as prob­lems, and how it ­w ill pursue solutions. It is a useful concept for understanding the institution at a given time, but it is especially helpful when looking at its origins. The police mandate can illuminate how the police “found themselves” existing in the first place. Neocleous invokes the concept of mandate in explaining the emergence of police in E ­ ngland. He dismisses “the general assumption in police studies” that police emerged in 1829 in the form of the Metropolitan Police with a narrow mandate to prevent crime.65 The police mandate preceded and directed the creation of dedicated agencies and was first fulfilled by a variety of government agencies and officials. Even ­ a fter police ­ organizations ­ were founded—­indeed ­u ntil this day—­police is not fully contained within them. Neocleous finds that early policing “took the form of a range of institutions concerned with far more than crime.” 66 The original police mandate did not draw its power from law, “but from the state and its attempt to fabricate social order.” 67 Once instituted, “early police o ­ rders made it quite clear which groups w ­ ere to be the targets of such powers, focusing police attention on the working class.” 68 Neocleous defines police on the basis of its mandate, writing “policing has been central not just to the repression of the working class and the reproduction

40

C r i t i c a l Th e o r y o f R a c e   a n d P o l i c e

of order, but to the fabrication of order.” 69 Police are not mere “upholders of the status quo” or “reproducers of order.” With the collapse of feudalism, the state emerged with “the original proj­ect of mastering the masterless.” This quickly “turned into the proj­ect of constituting the previously masterless as subject to a new master—­capital—­consolidating the power of private property.”70 Both police and social policy worked against the nascent working class “to shape this very group in the first place as part of the coordinated attempt by the state to fashion the market and thus consolidate the fabrication of a truly bourgeois order.”71 Police, then, was fundamental not just to ongoing class formation, but to the initial creation of a working class, and “the police mandate was to fabricate an order of wage l­abour and administer the class of poverty.” 72 The police mandate in the E ­ nglish colonies originated in the latter ­decades of the seventeenth ­century. As in ­England, the police mandate preceded the creation of the first dedicated police ­organizations. Likewise, the mandate was centered on the creation of a new social order and was designed to create a new working class. On the other hand, the sustained aspirations that mobilized the resources of the state and citizens alike had peculiar ­content. Not only did they enable each other, but as Sven Beckert and Seth Rockman observe, slavery “was facilitated, regulated, and policed by states, which in turn grew some of their strength from the wages of slavery.” 73 Order and disorder w ­ ere defined in ways that w ­ ere specific to the economic, p­ olitical, and social conditions of the colonies. The demand for l­abor and the crises of underproduction ­were also unique to the settler colonies and their nascent plantation economy. For t­hose in an increasing proportion of the working class, they w ­ ere mastered not only by capital; they w ­ ere forcibly converted into capital who w ­ ere mastered by their o­ wners. ­There is no more literal an action by the state to fabricate a working class than to create a ­legal system to convert workers into property. The state also fashioned the new slave economy. It established law that regulated the trade in slaves. Enslaved workers ­were transported and sold by ­England’s Royal African Com­pany. The state directly owned a sizable proportion of the bonded workers in the colonies. By the end of the seventeenth ­century, the state was directly involved in the administration not only of the slave trade, but of the slaves themselves. One of the first efforts to police enslaved workers created a pass system to regulate  their movement. Slave passes ­were not designed to prevent movement, but rather to ensure that slaves could travel to the market with commodities without taking any of them—or the profit derived from them—­for themselves. The conception of order at the core of the police mandate was also peculiar to the economy of the colonies.74 Even as enslaved African workers remained a small minority of the total population and among bonded workers, the colonial administrators and plantation cap­i­t al­ists saw that their condition of permanent bondage created a latent tendency ­toward insurrection,



The Peculiar Institution of Police

41

one that activated frequently enough to instill a pervasive fear. Disorder ­here meant insecurity, a threat to the very existence of the colony and its inhabitants. In time the cap­i­tal­ists ­were remarkably successful at convincing other whites to identify the security of the state with their personal security, and so to see Blacks as a threat to their livelihood and lives. Before ­there was even a dedicated police o ­ rganization, white citizens tended t­oward what Robert Reiner calls “police fetishism,” which assumes that “police are a functional prerequisite for social order so that without a police force chaos would ensue.” 75 Order, then, meant the suppression of rebellion by the state and white citizens acting in concert. This collaboration would become the site of the first police. The Police State Neocleous claims that “any theory of police must involve a theory of state power; conversely, any theory of state power must necessarily consist of a theory of police. To try to discuss police without discussing state power is like trying to discuss the economy without mentioning capital.” 76 He likewise claims that “one can only ­really make sense of state power by thinking about the ways in which this power is used to police civil society.” 77 In The Origins of the ­Family, Private Property, and the State, Friedrich Engels shows that “the state arose from the need to keep class antagonisms in check, but also arose in the thick of the fight between the classes.” The “eco­nom­ ically dominant class” became “the po­liti­cally dominant class” through harnessing the power of the state, “and so acquired new means of holding down and exploiting the oppressed class.” 78 In class society, the state mediates the public demand, granting influence on the basis of capital and ultimately mandating that “the police dispense vio­lence on behalf of the bourgeois class.” 79 On this basis, Sidney Harring asserts that “the police institution must be conceptualized as having been fundamentally bourgeois and anti-­working class from its inception.”80 Though his is a Marxist theory of state, Neocleous also accepts the general Weberian princi­ple that states are defined by their means. Max Weber conceptualized the state as “a ­human community that (successfully) claims the mono­poly of the legitimate use of physical force within a given territory.” 81 Applying Weber’s definition of state to a conception of police leads to one like that of Carl Klockars, who defines police as “institutions or individuals given the general right to use coercive force by the state within the state’s domestic territory.”82 This is why it is in the state demand where the police mandate and the capacity to use force are aligned. Neocleous argues that this mandate “is useless u ­ nless combined with the potential use of coercion and it is the police institution that has inherited part of the mono­poly of the means of vio­lence possessed by the state.”83

42

C r i t i c a l Th e o r y o f R a c e   a n d P o l i c e

Weber explains that all states share common means— ­a mono­poly on vio­lence—­but not common ends. Though he accepts Weber’s basic definition of state, Neocleous’s goal for a theory of state is not to provide one that would apply to all states in all times. In Administering Civil Society, he posits a Marxist theory of the state that is intended as a “weak theory.” By this he means it offers theoretical guidelines and orientations, rather than demanding that overly determined causal mechanisms “explain all the institutional and operational features of a state in a given conjuncture.”84 His theory of the state asserts a sharp separation of state and civil society, with p­ olitical administration functioning as a mediating form between them. For his critical theory of police power, he imports the concept of ­political administration and assigns the mediating role between state and civil society to police. H ­ ere he is invested in explaining the ends of the state via the means of police. Specifically, police provides the articulation of state vio­lence in the creation of social order, and in a modern E ­ uropean context, this order is industrial capitalism. ­Because his is a “weak theory,” we can adapt Neocleous’s insights for other contexts without committing to the total theory. This, of course, means leaving gaps that must be filled. In British colonial Amer­i­ca, slavery was at the core of the new plantation capitalism. Beckert and Rockman write that though capitalism and slavery ­were global phenomena, “their histories also unfolded within par­t ic­u ­lar national spaces and w ­ ere s­ haped by 85 specific distributions of social power and politics therein.” This lends new meaning to Neocleous’s claim that policing “is the most direct way in which the power of the state manifests itself to its subjects, the way in which the state constitutes and ‘secures’ civil society po­liti­cally.”86 Before police and chattel slavery w ­ ere primary institutions in the colonies, the state and cap­i­ tal­ists worked in concert to devise a system of slavery that was racialized, a system of coercive control that the state sanctioned and administered, and a mandate that differently racialized the population that would do the policing from the population that would be policed. The rest of this section is intended to make the case that British colonial Amer­i­ca and the antebellum United States should be considered a police state. It is beyond the purview of the pre­sent text to provide evidence that the same should be said of the United States beyond this period, including ­today. If readers are led to such conclusions, they share them with the author. Such a conclusion leads us to see that the state is concerned with maintaining security with police as its primary instrument. If it is not yet apparent to the reader, this conclusion conflicts with a ­popular notion that this is a so-­called “carceral state” that is concerned with punishment, with prison as its primary instrument. The comparison is provided h ­ ere not to “make room” for a theory of the police state by rejecting the trope of the carceral state. Rather, the comparison places the pre­sent definition of police—­and so the police state—in sharper relief.



The Peculiar Institution of Police

43

Common among con­temporary critics of police in academia and among activists is a tendency to begin any attention to police by focusing on prisons, theories of punishment, and critiques of the carceral state, and to then depict the police role as a mere adjunct to prisons, that is, rounding up poor ­people—­d isproportionately Blacks—to fill jail cells. When police vio­lence is accommodated within this perspective, it is incidental to making arrests or is treated as merely punitive on its own. In this regard, it repeats the same error of mainstream criminal justice studies, defining police as ­little more than gatekeepers to the rest of the criminal justice system. A recent review article in Social Science Review refers to police as “the front end of the carceral state.”87 In August 2019, the Vera Institute of Justice published a report titled “Gatekeepters: The Role of Police in Ending Mass Incarceration,” in which the discussion of “mass enforcement” and “punitive enforcement” centered almost exclusively on arrests, jail admissions, and prosecution, particularly for low-­level crimes. An approach that can only theorize police on the basis of its minor role in the repressive function of incarceration is bound to perpetuate factually inaccurate and theoretically impoverished ideas about police. Consider the gatekeeper ­metaphor, which defines police by virtue of its position at the entrance to the rest of the criminal justice system. H ­ ere arrest is the key step between initial police involvement and criminal prosecution. Yet only a tiny fraction of police activity results in an arrest, a minority of arrests result in criminal charges, fewer yet are prosecuted, and the majority of prosecutions do not end with prison sentences. In most cases officers and administrators alike prefer to respond to crime without recourse to the law and without making arrests.88 Policing is defined by discretion, and even in clear-­cut cases of violations of criminal law, that discretion is most often used to not make arrests. This does not mean that police are not concerned with punishment per se. Though we could not claim it definitively, it is reasonable to presume that police use the infliction of pain and suffering on more p­ eople than they arrest. Particularly when dealing with negatively racialized p­ eople, police use force to establish dominance by punishing them in advance for anticipated disrespect or disobedience, prior to any opportunity for them to show deference.89 When deployed strategically, this approach normalizes racialized police vio­lence, in part through repeated public demonstrations of the pro­cesses of the subordination of non-­whites, and becomes a crucial component of the subject formation of negatively racialized populations.90 The police contribution to criminal prosecution is hardly a major defining feature of the institution. Much of the rest of the criminal justice system kicks in a­ fter the decision to prosecute, and from then forward, the share of police activity that is devoted to it diminishes even further. Missing are the countless police engagements each year that do not result in arrest

44

C r i t i c a l Th e o r y o f R a c e   a n d P o l i c e

but are necessary to the productive function of police in the fabrication of social order. Such an approach is also unsatisfactory ­because it defines police only by virtue of the relationship of uniformed officers to the law, courts, and prisons. The focus on the “low policing” performed by uniformed officers means neglecting the “high police” functions performed by other officials and the private agents the state permits to aid in policing—­again, without arrest as their primary instrument. The Rule of Police Despite the colloquial, norm-­derived understandings of police as crime fighters, the suppression of crime is incidental to the police mandate to produce order. Most police work is performed without recourse to law, and when it does invoke criminal law, it most often is not in relation to harmful acts but rather to breaches of an undefined condition of order.91 Neocleous explains, “rather than search for par­t ic­u ­lar infringements of par­t ic­u ­lar laws, the police use law as part of the general mandate of order maintenance.”92 The frequent identification of police and law enforcement misstates both the ­actual role of police in the criminal justice system—­where prosecutors are better identified as law enforcers—­and the relationship between law and police. Manning argues that “the relationship between the law and the police” is that “the law serves as a mystification device or canopy to cover selectively, legitimate, and rationalize police conduct. It does not prospectively guide police action, nor does it provide the principal constraint upon police practices.”93 The ability of individual police to use discretion is as fundamental to the police role as the right to use coercive force. This ability “allows the exercise of power with law standing at arm’s length.”94 When the law is invoked, “ ‘discretion’ in practice involves discrimination in the form of selective law-­enforcement and order maintenance.” 95 George L. Kelling’s and Mark H. Moore’s periodization for the orthodox history of U.S. police highlights a break from the “­political era” to the “reform era” in 1930.96 Characteristic of the shift, they claim, is the transition to an apo­liti­cal role of police. This assumption that police is an apo­liti­ cal institution is central not only to the orthodox history, but also to the mainstream of criminal justice studies. Wilbur Miller’s comparative history of the New York Police Department and the London Metropolitan Police ­Service shows unequivocally that ­because the production and maintenance of order is the bedrock of the police mandate, policing is inherently ­political. At the most basic level is the fact that the determination of whose order it is and the way it ­w ill be upheld are essentially ­political issues. Miller concludes that ­because ­t hese are socie­t ies with “intense class conflict, one man’s law and order could be another man’s oppression.” 97



The Peculiar Institution of Police

45

Discretion is exercised throughout the institution in ways that are unavoidably ­political. As Jerome Skolnick explains, frontline uniformed officers constantly “interpret the l­egal order and make low-­v isibility decisions allowing the exercise of considerable discretion that is not subject to the review of higher authorities.” 98 From issuing citations for disorderly conduct to enforcing gang injunctions, police discretion not only affects the decision to enforce a law or not, to make an arrest or not, and to forward charges to a prosecutor or not, but also can render judgment on ­whether or not order has been breached.99 The “higher authorities” include police administrators, who wield their command over the spatial distribution of officers within their jurisdictions and exercise their discretion in interpreting crime maps and in defining “hot spots.” Neocleous explains the princi­ple of the rule of law is “one of the essential justifications of the liberal demo­cratic state.” The foundation in legality “implies both obedience to the laws on the part of citizens and to limits imposed on state power. It insists that the citizen is protected from the institutions of the state by having t­ hese controlled by law. In par­t ic­u ­lar, the rule of law is said to constrain and inhibit the discretionary powers of agents of the executive. Thus power is exercised within the constraints of law.”100 Police discretion would seem to be at odds with the rule of law. Police officers themselves regularly report that ­were the consistency embedded in the concept of the rule of law to be imposed on their work, it would render it impossible.101 This tension introduces prob­lems for liberals, who consider the rule of law as necessary for the legitimacy of the state. If the rule of law must be upheld in order for a state to be legitimate, and if police must exercise discretion in the regular course of its activity, then a state would be forced to decide between having legitimacy or having a police. In the absolutist period that preceded the modern state, the police concept suggested a “universal force with unlimited powers to pursue the common happiness.”102 With the emergence of the state and the liberal ideology intended to legitimate it, the ruling ideas conceived of order through law. Law was treated as i­ndependent of and beyond the state, an autonomous device with a life of its own.103 This “­legal fetishism” leads to the claim that “if ­t here is something wrong with the system of law, then, the prob­lem lies in its administration, personnel or simply the passing of bad laws, and not with Law itself.”104 Portraying the rule of law this way abstracts the concept from its origins in the modern state, the class society the state secures, and the oppression it facilitates. Rather than treating police as antithetical to the rule of law, the police concept was transformed such that police was viewed as a l­ imited force with clearly specified powers focused on providing internal security and the

46

C r i t i c a l Th e o r y o f R a c e   a n d P o l i c e

prevention of crime.105 Once the police concept was transformed, the opposition of the rule of law and police power was negated. As Neocleous explains, “having painted an ideological gloss on the tyranny of capital and having ignored the gradual assumption of increasing powers of domination of capital over ­labour, liberalism transformed the police idea by restricting it to ‘law and order’ in the narrowest sense—­t he prevention of crime and disorder via the enforcement of law by a professional body of public officials forming a single institution with a clearly defined and ­limited role and subject to the rule of law.”106 ­Today ­legal fetishism leads liberals to see the central prob­lem in reforming police as making it more consistent with the rule of law.107 Such are the ideological maneuvers necessary to preserve both police and the foundations of liberal thought. If law has a life of its own, pure and beyond the taint of h ­ uman corruption, any violations of the princi­ple are caused by the error or evil of individuals. When police transgresses the rule of law, it is law that ­w ill set ­things right again, since the ­legal procedures of the liberal-­ democratic state incorporate civil rights that ­w ill correct against specific violations by individual police officers. Far from opposing a police state on princi­ple, liberal ideology provides both its rationale and its justification in the face of mounting concern over routine police vio­lence. Prerogative Power and Sovereignty As Neocleous reminds us, “the fact that discretion is so integral to the exercise of police power tells us something impor­tant about the police and its relation to state power, for discretion is a key feature of state power generally.”108 At the heart of state power is the prerogative of the sovereign. Police is imbued with this most fundamental quality of state power. Prerogative references the discretion to use the state’s coercive capacity in lieu of, beyond, or contrary to law. The prerogative power of the executive is characteristic of modern sovereignty, where state power may be wielded when law is absent or unclear, when it does not provide sufficient direction, or even when law may be an impediment to fulfilling the state’s mandate.109 Prerogative power was theorized as such in the seventeenth c­ entury by John Locke in his Essay Concerning the True Original, Extent, and End of Civil Government, commonly referred to as the Second Treatise of Government. Locke defines prerogative as the power “to act according to discretion, for the publick good, without the prescription of the law, and sometimes even against it.”110 Neocleous explains that Locke’s contribution to liberal p­ olitical philosophy with the concept of prerogative was to make it function as an alternative concept to sovereignty—­w ithout all its absolutist baggage—­and to make prerogative “a liberal synonym for reason of state.”111 Reason of state is a guiding princi­ple for state action that places the maintenance of the state before all



The Peculiar Institution of Police

47

e­ lse. This is “the definitive aspect of state power,” which makes security “the overriding ­political interest, the princi­ple above all other princi­ples.”112 For Locke, security was a precondition for liberty, and the security of the state came prior to the security of the citizenry. Liberalism not only comes sequentially a­ fter absolutism in the history of p­ olitical thought; the possibility of a liberal society comes ­after the condition of absolutist rule. Locke profoundly influenced the treatment of security as a precondition for liberty in liberal ­political philosophy. Adam Smith maintained that the administration of justice first depends on security, and that “the liberty of ­every individual” is in part founded on “the sense which he has of his own security.”113 Jeremy Bentham claimed that “­political liberty is another branch of security” and that “a clear idea of liberty ­w ill lead us to regard it as a branch of security.”114 J.  S. Mill argued that security releases citizens from their “cares and anx­i­eties of a state of imperfect protection.”115 Locke’s impact on ­political thought was evident in the founding of the United States of Amer­i­ca. Long a­ fter his death in 1704, Locke’s thoughts on executive power helped create Article II of the Constitution. Alexander Hamilton effectively lobbied for a strong executive leading up to and during the Constitutional Convention. Writing in The Federalist No. 70 of March 15, 1788, u ­ nder the title “The Executive Department Further Considered,” Hamilton insisted that “Energy in the Executive is . . . ​essential . . . ​to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.”116 By the end of the eigh­teenth ­century, “liberty was subsumed ­under security,” ­after which constitutional republics in the West established, extended, and professionalized “a ­whole range of ‘security institutions,’ ” including police.117 Locke is doubly relevant, b­ ecause far e­ arlier his influence on the politics, economy, and ideology of colonial Amer­i­ca was extensive. He was an adviser to colonial administrators and an investor in the colonies. He served as secretary to the Council on Trade and Foreign Plantations from 1673 to 1674. From 1671 to 1677, Locke maintained a profitable investment in the slave-­trading Royal African Com­pany.118 He was one of the authors of the 1669 Fundamental Constitutions of Carolina and was intimately involved in its 1682 revisions, which gave the slave ­owner “absolute power and authority over his negro slaves.”119 In chapter 4 of the Second Treatise, titled “Of Slavery,” Locke made a crucial distinction between slavery and the servitude of debtors, criminals, and captives of war. Proper slavery, Locke writes, is when the slave is sold “­under an Absolute, Arbitrary, Despotical Power,” where the master had “an Arbitrary Power over his Life” and so could “have power to kill him, at any time,” and where manumission was not obligated.120 It is widely accepted that Locke’s p­ olitical philosophy of liberty was among the most influential ideas for the ­Founders. B ­ ecause Locke was able  to harmonize his thoughts on slavery with his administration of the

48

C r i t i c a l Th e o r y o f R a c e   a n d P o l i c e

colonies and the constitution of Carolina, we should credit Locke also for helping the ­Founders harmonize their liberalism with their white supremacy and owner­ship of slaves. ­T hese slave ­owners could strive to maintain a ­limited state, sanctify private property, and retain the absolute, arbitrary, despotical power upon which a slave society depends. For all the controversy over executive power and worries about its excesses, the ­Founders ultimately compromised on a strong executive and divided spheres of government that could prevent the rabble from wielding the power of the state in their own interests. Though it would seem that a l­imited state and prerogative power produce an implacable tension, the resolution is found in the structures of capital and the racial order. This resolution is seen most plainly in police. If it is law that formally extends the state’s authorization to use its coercive power, that law nonetheless cannot be binding on its use. Routine police practices require acting in lieu of, beyond, and contrary to the law. As Peter Manning observes, police can exceed their authorization, “but the direction of the excess is patterned by the interests of the community reflected in the law and defined by p­ olitical elites.”121 As Carl Schmitt claims, “the essence of the state’s sovereignty” must be defined “not as the mono­poly to coerce or to rule, but as the mono­poly to decide.”122 Police power is an articulation of the sovereignty of the modern state, not only b­ ecause it dispenses vio­lence, and not just b­ ecause that vio­ lence is against the state’s citizens and subjects, but most crucially ­because it requires a nearly unqualified ability to decide. The only qualification is that this power is wielded in the interest of the state—­a nd in a cap­i­t al­ist society, the interest of the state coincides with the interests of the cap­i­t al ­ist class. Reason of state is the princi­ple that both undergirds the executive’s prerogative power and provides direction for the use of discretion. This is why Neocleous finds that “the ultimate truth of the police is that it deals in and dispenses vio­lence in protection of the interests of the state.”123 The executive’s decision to exceed positive law is the exception. Schmitt notes this quality defines sovereignty, explaining “sovereign is he who decides on the exception.”124 This exception is created upon the use of prerogative power, acting outside of or in contravention of law. As Schmitt puts it, “the exception reveals most dearly the essence of the state’s authority. The decision parts h ­ ere from the l­egal norm, and (to formulate it paradoxically) authority proves that to produce law it need not be based on law.”125 The state of exception, in the strict sense, uses “state” as in “condition,” naming the condition when positive law is contravened by the executive, which then acts outside the prescriptions and circumscriptions of law. By describing the state of exception as permanent, Walter Benjamin echoes Schmitt. If the exception is “the essence of the state’s authority,” then “state” takes on a double



The Peculiar Institution of Police

49

meaning that explains that where t­here is state power, the condition of the exception is permanent. When the prerogative power of the executive is wielded, it has the full force of law, and so the use of discretion means coalescing the divided spheres of the bourgeois state. Thus discretion makes ­whole the sovereignty that the fantasies of divided powers and checks and balances cover over. This is yet another way that police reveals the face of sovereignty. As Neocleous describes it, “far from sitting uncomfortably in both judicial and executive spheres, the police institution straddles the boundary between ­these spheres naturally, operating most comfortably in the ‘open border’ between the spheres of state power and giving the police an aura of ­i ndependence which no other institution of the state appears to have.”126 Steve Martinot describes police as a law unto themselves, adding the legislative sphere to the pre­sent discussion. He explains that “in any police situation, all the authority of the law can be brought to bear on a targeted individual through the person of the cop and the cop’s self-­involvement in that situation.”127 ­Here we see police officers are, to borrow a phrase from Micol Siegel, “the human-­scale expression of the state.”128 Guillermina Seri similarly writes, “­every police agent embodies a minute replica of the state.”129 Police officers have the ­legal and practical ability to command obedience to their ­orders, so “the police directive constitutes a cop’s ability to make law in the moment.”130 Their ­orders are de facto ­legal standards that “assume the weight of law.” ­Those who are subjected to police power are therefore “subjected to two systems of law, the legislated law and the law the police can make arbitrarily in the form of directives.”131 For t­hose who are policed, the “law” in rule of law is the law of police, and so the rule of law is the rule of police. In sum, police embodies the sovereignty of the modern state in four ways. First, the discretion that is fundamental to police practice reveals the prerogative power to decide. That decision is most obvious when an officer uses vio­lence without any need for prior authorization. Second, that authority is directed by reason of state. The coercive power of police can be wielded only in the interest of the security of the state, which ultimately means the protection of markets and pro­cesses by which capital is accumulated, particularly the exploitation of ­labor power. A third way is that the vio­lence of police is used against citizens and subjects of the state. Classically conceived, sovereignty is typified by the king when he decides w ­ hether to cause one of his subjects to live or die. In modern states, the three facets of the king’s rule—­m aking law, enforcing law, and issuing rulings to punish offenders—is thought to be divided into the legislative, executive, and judicial spheres. This brings us to the final way that police embody sovereignty: they can issue commands that have the force of law, can then enforce

50

C r i t i c a l Th e o r y o f R a c e   a n d P o l i c e

that law, and can decide to punish infractions, namely through the infliction of pain or by causing death. To describe a police officer as a sovereign may seem at once obvious and hyperbolic. The rule of police seems both essential to the security of the state and a violation of antiauthoritarian tendencies well known as a per­sis­ tent trait among U.S. citizens. One way that the white democracy reconciled the authoritarianism entrenched in the rule of police was by distributing this sovereignty to its white citizens. “­Every Citizen Is a Policeman” Not only are the sovereign powers of the state divided into separate executive, legislative, and judicial spheres; sovereignty is also—­partially and with qualification—­d istributed among the citizenry. This defining feature of the white democracy was far more extensive before the twentieth c­ entury, ­a fter which the state both increased the extent of its administration of civil society and l­imited the scope of p­ opular sovereignty. During the periods addressed ­here, however, white citizens exercised an exceptional form of sovereignty in administering slavery, slaves, and f­ ree Blacks. In order to use Neocleous’s critical theory of police power in the U.S. context, the relationship between the state and civil society requires reconceptualization. Weber’s theory of state need not be dismissed, as he acknowledges the a­ ctual use of vio­lence is not contained among the state’s agents. Instead, “the right to use physical force is ascribed to other institutions or to individuals only to the extent to which the state permits it.”132 Micol Siegel recognizes as much in adapting Neocleous’s theory of police for a con­ temporary U.S. context. Her observation that citizens can and do act as “vio­lence workers” is even more applicable in explaining the involvement of white citizens in policing Blacks during the colonial and antebellum eras. Siegel’s conception of police as “vio­lence workers” can move beyond the sharp separation of the state and civil society pre­sent in Neocleous’s work, ­because “it effectively conveys the full panoply of ­people whose work rests on a promise of vio­lence, thereby displacing some of the weight of the assumption that policing is only or even primarily a state proj­ect or that the  state is a watertight container or boundary for ‘the police.’ ”133 Police officers are not the only “­people whose work is undergirded by the premise and the promise of vio­lence.”134 This is why Siegel explains “the essence of police work extends” to include all “channels for vio­lence condoned by the state.” Vio­lence workers include private police and security forces and also citizens who use coercion with the authorization of the state to produce and defend social order. Siegel cites the racial terror of the Ku Klux Klan and lynching as exemplars. Though t­ hese examples emerged a­ fter the periods covered in the pre­sent text, they relied entirely on the formation of



The Peculiar Institution of Police

51

white citizens as p­ opular police and as such ­were adaptations to secure the racial order ­a fter the abolition of slavery. U.S. police historian Frank Richard Prassel observes that historically, ­whether we turn to custom or law, we find that line between police officers and citizens is “somewhat vague and relative.” Ultimately, he claims, “­every citizen is a policeman.”135 That the police power was distributed among citizens was observed e­ arlier by Alexis de Tocqueville in Democracy in Amer­i­ca. He found during his research in the early nineteenth-­century United States: The criminal police of the United States cannot be compared to that of France . . . ​in no country does crime more rarely elude punishment. The reason is, that ­every one conceives himself to be interested in furnishing evidence of the act committed, and in stopping the delinquent. . . . ​ In E ­ urope a criminal is an unhappy being who is struggling for his life against the ministers of justice, whiles the population is merely a spectator of the conflict; in Amer­i­ca he is looked upon as an e­ nemy of the ­human race, and the w ­ hole of mankind is against him.136 Neocleous finds in the early E ­ uropean police an expanded role that included sanitation and fighting fires. De Tocqueville notes that in the United States, however, this par­tic­u ­lar role, like law enforcement, was also conferred to citizens, writing, “In Amer­i­ca ­there is no police for the prevention of fires, and such accidents are more frequent than in ­Europe; but in general they are more speedily extinguished, ­because the surrounding population is prompt in lending assistance.”137 Colonial New York’s “bucket brigades,” discussed in chapter 8, are representative. Despite the usual assumption that salaried personnel are a requirement for a police, “avocational police” have always been a core feature of police in the United States.138 In some times and situations, avocational policing was obligatory.139 The slave patrols ­were initially such an instance. Patrollers ­were drafted for such work. With few exceptions, volunteer police ­organizations and ad hoc policing by citizens has been legally sanctioned to fulfill police functions.140 In one of the most thorough histories of avocational police, Martin Alan Greenberg finds that many con­temporary police practices “are grounded in the vari­ous colonial systems of law enforcement, which w ­ ere mostly voluntary.”141 It was during the colonial period that “the idea that every­ one held police responsibility was generally accepted.”142 Policing f­ree Blacks and slaves began as a compulsory but unpaid responsibility of citizenship; transformed into an experimental, minimally remunerated, and still compulsory duty; and fi­nally was solidified as a profession in ­organizations that endured, some for well over a c­ entury. “The transformation of the colonists’ approach to slave control,” Greenberg explains, “became inevitable as a consequence of economic development: increased productivity, greater investment, capital

52

C r i t i c a l Th e o r y o f R a c e   a n d P o l i c e

accumulation, technological improvements, and corresponding changes in the division of l­abor.”143 If policing is defined by “permanent o ­ rganizations established for the purpose of maintaining order,” we cannot exclude the patrols from police history or place them in a category of their own, and certainly not on the grounds that they earned minimal or no salary, ­because ­these qualities are basic to U.S. police, from its inception ­until ­today. Greenberg compares the slave patrols with the “thousands of volunteer citizen spies” in the American Protective League, a force of a quarter million volunteers in 600 U.S. cities, deployed from 1917 to 1919 “for the purpose of identifying draft evaders and suspected anarchists” on the grounds that they ­were created by government, relied on citizen participation, and they ­were expressly engaged in abusing the rights of citizens.144 The ad hoc nature of early policing meant that communities relied on their citizens to volunteer or serve ­a fter being commissioned, initially without pay. Even as criminal codes began to proliferate and legislation further specified the roles of the criminal justice institutions, the prerogative of individuals filling t­ hose roles was defining of them. Particularly when ­t hose roles w ­ ere fulfilled by propertyless whites, elites complained of a lack of diligence. Magistrates in some towns ­were strict, while ­others ­were lax. General attitudes that distrusted governmental power and centralization facilitated the continuation of the ad hoc administration of law well beyond attempts by the legislature to formalize it. A consequence of this extension of discretion meant that racial administration could be infused through the system of laws and the practices of police even when they ­were not explic­ itly directed to be. For centuries producing and maintaining order relied not only on avocational police, but more specifically on vigilantes. Between 1767 and 1900, at least 326 and as many as 500 vigilante o ­ rganizations w ­ ere active.145 ­T hese ­were hardly “informal police,” given their size, duration, and level of ­organization. Vigilante groups claimed over a hundred members, on average. Some short-­lived groups had as few as a dozen members, while ­others ­were massive ­organizations, such as the San Francisco Vigilance Committee, with its membership of 6,000 to 8,000.146 Furthermore, “most vigilante ­organizations had a constitution or a set of by-­l aws to which members swore allegiance,” and ­t hose they captured typically received a formal trial held by the ­organization.147 In such cases, the vigilantes w ­ ere themselves the jury, and the 326 o ­ rganizations in the historical rec­ord executed 729 p­ eople.148 Most ­organizations ­were dominated by elites but composed by a majority of middle-­class men. Klockars notes that the written law did not condone vigilante activity, and so would not fit narrow definitions of police. They did, however, receive open support from officials in government, from local



The Peculiar Institution of Police

53

to federal, and had broad public support. Partly on ­t hese grounds, Klockars expects a more expansive understanding of police and of law: look to “how the state and its agents administer the written law in practice,” rather than “read what is written on the statute books.”149 Conclusion The orthodox history of police encourages the neglect of slave patrols or treating them as something other than police, precisely b­ ecause it has selected the starting point as 1829 with the London Metropolitan Police ­Service. Anything prior to that year must not be police and is at most a precursor. This stems from a narrow definition of police put forward by t­hose who are or ­were engaged in the civil trade or whose work primarily results in the professionalization of would-be police officers. This definition, and the incomplete history it is based on, ­w ill not serve a critical theory of U.S. police. Police is the state’s primary institution through which its power is  deployed within its territory and against its subjects. The police role is granted through a mandate issued by the state and the cap­i­tal­ist class, and this role is exemplified through its capacity to decide on the use of vio­lence for the purpose of fabricating and reproducing the social order and without recourse to the law. By drawing together and synthesizing the disparate intellectual traditions inspired by Neocleous and, in the next chapter, Du Bois, we have the basis for a theory of race and police that is appropriate to understanding the police role in the United States. With modification, Neocleous’s critical theory of police power provides crucial tools to analyze class and race formation in this context. Du Bois’s analy­sis of race in the antebellum and Reconstruction eras has informed an invaluable historiography of race, particularly that focused on the invention of the white race. Taking analytical cues from Du Bois can allow us to look at an ­earlier, formative period to find the ways that the invention of race and police was not merely happening in parallel, but in tandem.

C hap te r 2

The Peculiar Institution of Race

Considering that our species has existed for 300,000 years, race is one of our very recent inventions. It was not u ­ ntil the seventeenth ­century, Ivan Hannaford establishes, “that the idea of race was fully conceptualized and became deeply embedded in our understandings and explanations of the world.”1 Ours is a purely modern and Western concept, a product of the p­ olitical economy of capitalism. Developing uniquely in specific national contexts, the evolution of capitalism in the United States—­a nation birthed as a settler colony with no indigenous history of feudalism, with one of the earliest cap­i­tal­ist economies, and fueled by bonded l­abor from the outset—­has produced a peculiar form of race. As in the Spanish and Portuguese colonies, some British colonies in the ­Caribbean developed gradations of race. This is partly b­ ecause they ­were plantation colonies not originally intended for settlement. The few En­g lishmen who remained on the islands had c­hildren with African ­women, usually resulting from concubinage. The ­children w ­ ere subjected to a developing racial schema with a hierarchy based on the proportion of ­English and African ancestries. Where race is a key component of the social order, ­t here are usually multiple, stratified races. Currently in the United States, w ­ hether in census standards or in colloquial understanding, t­here are several recognized races. Despite this, race relations in the United States have always been defined relative to the color line, where white and not-­white are divided and where Blacks have defined the not-­white pole.2 At vari­ous points in the history of the United States, ethnic groups defined as not-­ white traversed the color line—in the case of Persians and Arabs, in both directions. Blacks and indigenes are the only groups that have for all purposes been permanently circumscribed to the not-­white category, as they are the only groups subject to racial assignment on the basis of hypodescent, that is, any ancestry from the subordinate group w ­ ill result in a person being assigned to that group. British colonial Amer­i­ca established race relations that Oliver C ­ romwell Cox characterizes as distinguished by “colored enslavement in which a small aristocracy of whites exploits large quantities of natu­ral resources, mainly 54



The Peculiar Institution of Race

55

agricultural, with forced colored l­abor, raised or purchased like capital in a  slave market.”3 During this “slavery situation,” the way was paved for a “bipartite situation,” defined by “large proportions of both colored and white persons seeking to live in the same area, with whites insisting that the society is a ‘white man’s country.’ ” 4 A rigid color line developed, serving as a basis for the “one-­d rop rule” as a ­legal and cultural standard. While the law sometimes addressed “mulattoes” in name, the term was appended to “Negro,” as in “Negro slaves and mullattoes” mentioned in several ­Virginia slave codes, beginning in 1666. As Winthrop Jordan notes, “in all ­English continental colonies mulattoes ­were lumped with Negroes in the slave codes and in statutes governing the conduct of f­ ree Negroes: the law was clear that mulattoes and Negroes ­were not to be distinguished for dif­fer­ent treatment.”5 Contrast this with some ­English colonies in the ­Caribbean where it was improper to work mulattoes in the fields, and so their value as slaves was significantly lower. This, of course, did not preclude them from forced ­labor as ­house servants or concubines in the West Indies. Theodore Allen provides another useful heuristic for more clearly defining situations where race is fundamental to social hierarchies. In comparing national oppression and racial oppression, the distinguishing ­factor is the group that enforces the system of domination.6 With national oppression, the conquering power administers its rule by assimilating members of the elite group from among the subject population. In the case of racial oppression, the ruling class relies on the support of the laboring classes of the oppressor nation. In the late seventeenth ­century, chattel slavery established an economic practice u ­ nder practical imperatives that l­ater took on a distinctly ideological cast s­haped by white supremacy, where only whites w ­ ere fit to rule and non-­whites ­were relegated to servility, in what David Roediger refers to as the herrenvolk republic of the antebellum period.7 Cox’s situations of race relations and Allen’s explanation of racial oppression are useful in comparing dif­fer­ent racial hierarchies, but what exactly is meant by race itself ? What is distinctly racial about t­hese hierarchies? The term “race” is variously defined in terms of biological essence, identity, ethnicity, or some combination of ­t hese. Race has been described as a universal phenomenon, as a neutral category, and as a fiction.8 None of ­t hese capture what race is. Race is not biological. The evidence is clear “that racial groups are not genet­ically discrete, reliably ­measured, or scientifically meaningful.” 9 Even if it w ­ ere biological, the ­English colonists would have lacked an understanding of biology sufficient to connect it with race. In their own time, they debated ­whether black skin was a result of a disease that could be cured by relocating to cooler climates or a curse caused several millennia before when Noah was drunk and his son, Ham, saw him naked. ­There certainly

56

C r i t i c a l Th e o r y o f R a c e   a n d P o l i c e

was no consensus that race was hereditary, and understanding of ge­ne­tic inheritance was not developed ­until ­after slavery was abolished. It would take ­until the early twentieth ­century for genes to be recognized by biologists.10 Cox rejects ethnicity as the basis for race, ­because race is determined on the basis of physical features that transcend the bound­a ries of ethnic groups. Race is dependent upon “physical distinguishability” of a sizable group. ­T hose features are heritable, to be sure, but a feature like a common skin tone among a large enough group is insufficient to define race. As Pierre van den Berghe observes, “some visibility has to be pre­sent for differences to be defined in racial terms, but that visibility is sometimes quite low.”11 He provides Jews in early twentieth-­century Germany and France as examples where visibility was unreliable, but where anti-­Semitism was nonetheless an example of racism and not ethnocentrism. The same could be said of the Irish in the United States during the first half of the nineteenth ­century.12 Van den Berghe considers as a necessary ingredient for race to exist “the presence in sufficient numbers of two or more groups that look dif­fer­ent enough so that at least some of their members can be easily classifiable.”13 This condition is necessary but insufficient, precisely ­because race is not a universal phenomenon. As Frank Snowden  Jr. established, “the argument that color prejudice is an inevitable consequence of numbers finds l­ ittle support in the experience of the ancient world.”14 In his Before Color Prejudice, Snowden deftly shows that the ancient world did not make color the focus of irrational sentiments or the basis for uncritical evaluation. The ancients did accept the institution of slavery as a fact of life; they made ethnocentric judgments of other socie­ t ies; they had narcissistic canons of physical beauty; the Egyptians distinguished between themselves, “the ­people,” and outsiders; and the Greeks called foreign cultures barbarian. Yet nothing comparable to the virulent color prejudice of modern times existed in the ancient world . . . ​the ancients did not fall into the error of biological racism; black skin was not a sign of inferiority.15 The recognition of difference and a mobilization of difference to posit one’s own group as ideal is not the substance of race, and it is not necessarily the “germ of anti-­black bias.”16 Labeling or representing p­ eople as members of a distinct group alone does l­ittle to create a hierarchy, which would require established structures to give social and p­ olitical significance to such categories.17 As Cox explains, race is not ethnocentrism, which is an attitude that establishes group solidarity. Nor is race defined by social intolerance, which is resentment t­oward groups that do not conform to dominant beliefs and practices. Race is not defined by “racism,” which is an ideology that seeks to rationalize extant race relations.18 Racism, of which white



The Peculiar Institution of Race

57

supremacy is one specific form, comes ­a fter race is already made a social fact. T ­ hese attitudes and beliefs would mean l­ittle if the groups in question had substantive equality. As Karl Marx concludes, “it is not the consciousness of men that determines their existence, but their social existence that determines their consciousness.”19 It was the demand to accumulate capital that led to a slave society in the British colonies, not white supremacy. 20 Racism developed l­ater, when an ideological justification was called upon to legitimize an already institutionalized system of slavery. 21 Race as an idea and a p­ olitical institution has a historical pedigree. 22 Hannaford demonstrates that for the dominant cultures of E ­ urope the seventeenth and eigh­teenth centuries ­were a time of “transition in thought from a historical situation in which ­peoples lacked the disposition to divide the world into racial or ethnic groupings to one in which ­t here is a disposition to divide every­thing in that way, even to the extent of inferring it when it is obviously missing as an ­organizing idea.”23 In the southern colonies, race was fabricated through the p­ rocess of building a system of chattel slavery and a form of citizenship that together w ­ ere defined by color.24 White skin became associated with citizenship and black skin with slavery. Joel Olson explains that one did not receive the rights of citizenship b­ ecause one was white, “but rather the reverse: one was white b­ ecause one possessed such rights.”25 As Cedric Robinson reminds us, it was through the colonization of Africa and the transatlantic slave trade that the West defined “the Negro,” in­ven­ted whiteness, and created a system to police the bound­a ries between t­ hese categories.26 ­Because of the global reach of the slave system and the persisting use of race to “[enshrine] the inequalities that capitalism requires,” to speak of capitalism is to speak of racial capitalism.27 Cap­i­t al­ist modernity was constituted through a slave economy, not just in the American South, but for the entire cap­i­t al ­ist world system.28 For Du Bois, “colonialism and racism are structuring ele­ments of historical capitalism,” and “the ­process of accumulation based on the coerced ­labor of workers of color and the extraction of resources from the colonies is not just a moment of primitive accumulation but is constitutive of racial and historical capitalism. Slavery and the plantation economy ­were the historical base upon which the industrial economy of the nineteenth ­century was built.”29 Du Bois recognizes that “Karl Marx emphasized the importance of slavery as the foundation of the cap­i­t al ­i st order.”30 In The Poverty of Philosophy, Marx acknowledges that the l­abor of enslaved Africans in the Amer­i­cas made a necessary contribution to global cap­i­t al­ist domination, writing that “slavery is an economic category like any other. . . . ​Direct slavery is just as much the pivot of bourgeois industry as machinery, credits, ­etc. Without slavery you have no cotton; without cotton you have no modern industry. It

58

C r i t i c a l Th e o r y o f R a c e   a n d P o l i c e

is slavery that gave the colonies their value; it is the colonies that created world trade, and it is world trade that is the precondition of large-­scale industry. Thus slavery is an economic category of the greatest importance.”31 In time, the slave trade established a network including plantation o ­ wners, shipbuilders, and merchants, allowing them to accumulate capital that was then used to establish banks and industry in E ­ urope, in turn further expanding global capitalism. 32 Slaveholders in the southern colonies developed sophisticated management and accounting techniques that predate ­ those used in the North and in E ­ urope.33 The ­English Industrial Revolution was financed by slavery. Without the wealth generated by slave ­labor, Britain and, ­after its i­ndependence, the United States could not have risen to prominence as global economic and military powers. Race being a product of historical phenomena does not make it a mere fiction. It is a consequence of specific material arrangements for production, originating in colonialism and slavery, and developing across multiple crises to maintain a racial order that facilitates the security and accumulation of capital. B ­ ecause it is fundamental to class formation, race is hardly neutral. It is birthed from and imbued with power. Politics makes physically distinctive qualities consequential. Olson explains that race is “a set of relations within a network of power that ­organizes p­ eople into par­tic­u ­lar groups and/or roles for the purpose of governing the polity.”34 It is also a product of and influence on “the collective and participatory engagement of citizens in the determination of the affairs of the community.”35 When in Dusk of Dawn Du Bois attempted to elucidate a concept of race through historical and autobiographical exploration, he came to conclude that “perhaps it is wrong to speak of it at all as ‘a concept’ rather than as a group of contradictory forces, facts and tendencies.”36 His reference to contradictory forces is suggestive of Marx’s approach to dialectics, and so Du Bois’s treatment of race is as a relation that emerges from the strug­g les endemic to the p­ olitical economy of American society. Contradictory forces are not merely ­those strug­g les of opposing classes that cause the development of history; additionally, they point to the critical junctures that may spell the ultimate demise of the cap­i­tal­ist economy. Race is not only central to class strug­g le; it is also the fracture in the existing order that could burst it wide open. Perhaps the deepest contradiction in U.S. capitalism is found in the figure of the white worker. Du Bois explains in Black Reconstruction that race has the function of dividing the working class along a color line, granting to white workers a “psychological and public wage,” while Black workers ­were “compelled almost continuously to submit to vari­ous badges of inferiority.”37 A term in wide circulation ­today, “privilege,” is used to explain the advantages that come with membership in the white race. A privilege, however, is a right that is guaranteed. A wage must be earned. What makes a worker



The Peculiar Institution of Race

59

white is not merely the public and psychological advantages, but that ­those are actively earned through a cross-­class alliance. Olson makes a crucial distinction in understanding how race functions in the United States, explaining that “the cross-­class alliance does not make all whites members of one class and all not-­whites members of another. . . . ​The origins of white domination lie in a cross-­class alliance, not class itself.”38 Race is a contradictory force in part ­because, though the economic position of white workers places them among the working class, they form a consciousness on the basis of race, one that often has the practical outcome of impeding their development of a proletarian consciousness. Writing in the 1930s, Du Bois explains: The theory of laboring class unity rests upon the assumption that laborers, despite their internal jealousies, ­w ill unite b­ ecause of their opposition to exploitation by the cap­i­tal­ists. According to this, even a­ fter a part of the poor white laboring class became identified with the planters, and eventually displaced them, their interests would be diametrically opposed to ­those of the mass of white ­labor, and of course to ­those of the black laborers. This would throw white and black l­abor into one class, and precipitate a united fight for higher wages and better working conditions. Most persons do not realize how far this failed to work in the South, and it failed to work b­ ecause the theory of race was supplemented by a carefully planned and slowly evolved method, which drove such a wedge between white and black workers that t­ here prob­ably are not ­today in the world two groups of workers with practically identical interests who hate and fear each other so deeply and per­sis­tently and who are kept so far apart that neither sees anything of common interest.39 Race could mark a site of working-­class ­resistance that could overturn the rule of capital, but thus far it has been the glue that holds it together. Capitalism has always depended on a group of workers held below all ­others. From the outset, that group has been defined by race and gender. For the early cap­i­tal­ist world system, slavery served as a linchpin. In the United States, it established the point where class formation and race formation overlapped. Loïc Wacquant shows that slavery was a race-­m aking institution, meaning that it did not ­process a racial division that preexisted slavery. Instead, it created new racial categories, including within the working class. This was true not just for the white worker, but for the Black worker as well. While Oliver ­Cromwell Cox maintains that “the slave was a worker whose ­labor was exploited in production for profit in a cap­i­tal­ist market,” Du Bois goes even further.40 Du Bois describes the Black worker during slavery as the epitome of the proletariat. He insisted, “we must remember the black worker was the ultimate exploited; that he formed the mass of l­abor which had neither

60

C r i t i c a l Th e o r y o f R a c e   a n d P o l i c e

wish nor power to escape from the l­abor status, in order to directly exploit other laborers, or indirectly, by alliance with capital, to share in their exploitation.” 41 Of course, slavery is not the only ­thing that defines race or Blackness, but it established an economic position of Blacks at the bottom of the working class where they have remained as their primary economic role shifted from permanent slaves to the last-­h ired-­and-­fi rst-­fi red members of the reserve army and fi­nally to ­those most likely to be permanent members of the surplus population of the United States.42 In the colonies, Wacquant argues, race was “a direct outcome of the momentous collision between slavery and democracy as modes of o ­ rganization of social life ­after bondage had been established as the major form of l­abour conscription and control.” 43 Once institutionalized, the racial divide allowed ­later forms of race-­making and class formation—­like Jim Crow and the Black ghetto—to inherit the “demarcations and disparities of group power” and to reinscribe that divide “at ­every epoch in a distinctive constellation of material and symbolic forms.” 44 Beginning with slavery and carry­ing through successive stages, ­these forms “consistently racialized the arbitrary boundary setting African-­A mericans apart from all ­others in the United States by actively denying its cultural origin in history.” 45 Marx asserted in “On the Jewish Question” that workers are f­ ree in two ways: they are f­ ree to sell their l­ abor but also f­ ree of the means of production. This is ironic in the context of Amer­i­ca where, as Marx knew well, all but a fraction of Blacks w ­ ere not f­ree to sell their l­abor; they ­were bound to work ­u ntil death without earning a wage. L ­ abor was racialized from the outset. ­Because white workers could sell their ­labor, whiteness served as a form of property, as self-­ownership.46 Self-­possession was made all the more significant with the presence of slavery. The dispossession of Black slaves ensured they would be subjected to a mode of social death where they w ­ ere insiders who do not belong and cannot participate in the community, deprived of citizenship and made incapable of fulfilling the most basic socioeconomic norms.47 While vagabonds and criminals may have found themselves in a momentary condition of social death, chattel slaves w ­ ere condemned to a social death that was permanent. Through racializing citizenship, race established a unique relationship between whites and the state. Whites ­were created through this relationship. Olson concludes, “the very structure of American citizenship is white, to the point where, for most of American history, to be a citizen was to be white and vice versa.” 48 Especially in the antebellum era, this was a herrenvolk republic, or what Olson calls a white democracy, where it was a democracy for whites and tyranny for all o ­ thers. Racial domination is a product of U.S. democracy, not an aberration from or a threat to it. Slavery and Jim Crow laws are not “unfortunate episodes in violation of the egalitarian ethos of the



The Peculiar Institution of Race

61

demo­cratic tradition,” but are instead “perfectly compatible with American democracy.” 49 Likewise, slavery defined the relationship between Blacks and the state. Zoe Samudzi and William  C. Anderson claim that this relationship with the state is what makes a person Black, writing, “We are Black b­ ecause we are oppressed by the state; we are oppressed by the state ­because we are Black.”50 This is a form of oppression that began at what Anthony Paul Farley calls “the zero hour of exploitation,” the “moment in which we w ­ ere constituted as a race,” when Blacks w ­ ere first captured, enslaved, and made fungible property.51 Blacks ­were not just denied citizenship, but ­were cast as anticitizens who consolidated and threatened the social compact.52 When Blacks w ­ ere legally defined as chattel and real estate, they w ­ ere nonetheless also classified as domestic enemies. In all slave socie­ties, slaves are “legally and ideologically assimilated to the status of the internal criminal.”53 The enslaved experienced the consequences of what Orland Patterson calls an “intrusive mode of representing social death,” whereby “the slave was ritually incorporated as the permanent e­ nemy on the inside—­the ‘domestic e­ nemy.’ ”54 This is the crucial link between slavery and social order, where in British colonial Amer­i­ca Blacks ­were criminalized from the outset. Michel Foucault observes that in eighteenth-­century ­Europe, the control of crime and disorder was adjusted to notions of social hostility, where “the criminal is the social ­enemy,” defined as “someone who wages war on society,” and where “it is impor­tant for society that its enemies be brought ­under control and do not multiply.”55 A similar logic was at work in late seventeenth-­century colonial Amer­i­ca, where Black slaves ­were insurgents, both literally and figuratively, and order was conceived of as precarious, always at risk of insurrection, in a permanent state of exception. Whiteness, Gerald Horne explains, is “the forging of bonds between and among E ­ uropean settlers across class, gender, ethnic, and religious lines,” and was created as “a concrete response to the real dangers faced by all of ­these mi­g rants in the face of often violent rebellions from enslaved Africans and their indigenous comrades.”56 Whites fulfilled their duties as citizens by actively engaging in the suppression of ­these threats. Through this p­ rocess, white citizenship and Black anticitizenship came to define not only how race would function for centuries, but also how the state would conceive of and attempt to produce a condition of economic and ­political security through the policing of Blacks. Slave ry and A m e ri can Racial E xc e p ti onal i sm If American slavery was a peculiar institution, then the form of race that originated and developed along with it certainly was. For most of the

62

C r i t i c a l Th e o r y o f R a c e   a n d P o l i c e

seventeenth ­century, race was not yet a ­factor in the social ­organization of the colonies. As Joel Olson explains, “race was not something that was already ­there, ready to be picked up by colonial elites and used to divide the masses against themselves.”57 When we look at the colonial period, we have to be careful to avoid what Gerald Horne characterizes as “the analytical debility of simply implanting ­today’s often unsophisticated understanding of ‘whiteness’ on a period defined by sharp clashes between and among E ­ uropean colonial powers and settlers alike.”58 Neither the settlers nor t­ hose they enslaved would have been inclined to categorize ­people into three distinct racial groups on the basis of their white, black, and red skin. The first settlers w ­ ere E ­ nglish and Christian, but they w ­ ere not white.59 It would take several generations before “white” would be used in such a way in common and ­legal parlance. For that ­matter, the ­English did not think of themselves as ­European. The nascent intellectual tendency ­toward ­European unity and identity was just beginning to gain traction among elites in the sixteenth c­ entury. At the beginning of the eigh­teenth ­century, “­Europe” was just beginning to replace “Christendom.” 60 The first slaves did not see themselves as Africans; they w ­ ere from the Kongo or Ndongo kingdoms. The first indigenous populations encountered by the colonizers ­were not seen as natives to a continent as much as members of a chiefdom ruled by Powhatan. Color was recognized, but it was more a curiosity than a m ­ atter that informed the social order.61 With only a few marginal exceptions, p­ eople from ­Europe did not yet think in terms of race, and certainly not such that they would categorize all ­people who shared a skin color or continent of origin into a single group. As Lerone Bennett Jr. observed, during the first d­ ecades of the seventeenth ­century, “white masters proved to be remarkably color blind when the claims of color contradicted their fundamental economic interests.” 62 Initially, slaves from ­European, African, and North American nations ­were exploited. The slave trade developed not ­because “Indians and Negroes ­were red and black,” supported by “an abstract, natu­r al, immemorial feeling of mutual antipathy between groups, but rather a practical exploitative relationship with its socioattitudinal facilitation,” writes Oliver C ­ romwell Cox. “The slave trade was simply a way of recruiting l­abor for the purpose of exploiting the ­g reat natu­r al resources of Amer­i­ca.” 63 For all the concerns about miscegenation that troubled settlers at the end of the seventeenth ­century, in the early years of the colonies, it was not unusual for a white master to force white w ­ omen servants to marry Black 64 male servants. White masters on occasion placed Africans in positions of authority over white servants. Of the first group of Africans in Jamestown, at least one went on to become a planter who owned slaves, both Black and white. During the first ­century of occupation, workers from ­Europe and Africa labored together on plantations, clearing land and building civil infrastructure.



The Peculiar Institution of Race

63

­ fter the day’s work, they socialized and consorted with one another. They A bonded in friendship, love, and r­esistance. An infamous example of such a rebellion is Bacon’s Rebellion, where in 1676, E ­ uropean and Black indentured servants and landless freemen destroyed the capital of Jamestown before ultimately being defeated. It was not race, but the nature of production that provided the motive force in the early evolution of slavery.65 Disease, climate, and the physical demands of l­abor claimed the lives of thousands of E ­ nglish settlers, particularly workers. Two-­thirds of ­English indentured servants died from overwork and disease during the first year of settlement. Initially, buying a slave for life was far costlier than purchasing an indenture. When premature death was the most likely outcome for ­English servants, the term-­limited contract was preferable.66 With a high demand for plantation commodities and a willingness to expand the settled territory, the high mortality rate was a barrier to economic growth. By the latter d­ ecades of the seventeenth ­century, opportunities for work in ­England improved and knowledge of harsh conditions in the colonies spread, so workers w ­ ere less inclined to make the trip across the Atlantic. The colonists ­were facing a crisis of underproduction. Even though the classism of colonial administrators and planters was sufficient to permit the often brutal exploitation of ­European servants, a nascent ­English identity that touted the virtues of liberty also encouraged ­English elites to seek other sources of l­abor. Though hard ­labor and the environment proved disabling or deadly for most ­English servants, African servants ­were exceptionally resilient. Not a single African died in the first three years a­ fter their arrival.67 By comparison, Africans also possessed greater skill in the par­t ic­u ­lar agricultural work of growing and pro­cessing tobacco, indigo, and rice. ­Because of the institutionalization of the transatlantic slave trade by the Spanish, Portuguese, and Dutch, the enslavement of African ­people was already normalized—­even if the ­English frequently spoke of the cruelty and brutality of the slave trade.68 ­Because the slave trade was already established, the E ­ nglish colonists had an easier route to follow in the transition from indentured servitude to chattel slavery. Rather than converting servants into slaves, they instead bought ­people who ­were already enslaved.69 ­These ­factors together contributed to the transition from the use of ­European indentured servants as a primary source of l­abor to the lifetime servitude of African workers, well before a coherent racial ideology took hold in the colonies. Another early source of l­abor was found through the enslavement of indigenous p­ eoples. As with enslaved Africans, colonial administrators learned that enslaved indigenous workers w ­ ere more resilient than ­English servants. In seventeenth-­century New ­England, enslaved indigenes outnumbered Africans. In southern New ­England, the ­English and their Native allies launched

64

C r i t i c a l Th e o r y o f R a c e   a n d P o l i c e

the Pequot War of 1636 to 1638 so they could take captives for forced ­labor.70 By the end of King Philip’s War in 1676, 2,000 indigenes ­were captured and enslaved. In the South enslaved natives w ­ ere used more as a commodity for trade than as a major source of ­labor power. The formal policy of the Proprietors of Carolina stated that “no Indian upon any occasion or pretense whatsoever is to be made a Slave, or without his own consent be carried out of Carolina.” The colonists worked around the policy, claiming that any Natives they held as slaves w ­ ere enemies of their indigenous allies, who initially took them as captives in war.71 Beyond official policy, ­because the exploitation of indigenous slaves strained ­political relationships with vari­ous original nations, and ­because their familiarity with the region eased rebellion and flight, the Carolinians exported most enslaved indigenes to Barbados. Even if the economic contribution of l­abor power from indigenous slavery was minor by comparison, the effects of the practice ­were far-­reaching. It completely destabilized several indigenous polities, and in New E ­ ngland it provided a l­egal framework that eased the institutionalization of slavery, generally.72 According to Bennett, it was only “when the economic interests of Colonial masters changed” that the e­ arlier color-­blindness gave way, and “their eyesight improved considerably.” 73 As Ira Berlin concludes, “slave socie­t ies—­ far more than socie­ties with slaves—­n aturalized and rationalized the existing order through use of racial ideologies.” 74 So long as slavery remained one source of l­abor among many and slave populations remained small, and so long as the only challenge to the institution came from that small population itself, the ­English settlers ­were rarely called upon to justify the practice of lifetime ­human bondage. In addition to the economic f­actors that drove the evolution of slavery, the transition to a race-­based system of chattel slavery had a p­ olitical dimension. Elites observed the close social relationships among E ­ uropean and African bondmen, alongside the increasing frequency and intensity of rebellion by workers from all national origins. Colonial administrators used skin color to drive a wedge between whites and Blacks, as a strategic response to suppress rebellion.75 W.E.B. Du Bois maintains that the failure of working-­class whites and Blacks to come together as a single class based on their shared exploitation and economic position was a result of “a carefully planned and slowly evolved method, which drove such a wedge between the white and black workers.” 76 As a component in this plan, the first slave codes w ­ ere drawn up in the last two d­ ecades of the seventeenth ­century in response to a surge in rebellion. The racialization of slavery was “the solution to the threat of servile insurrection and the prob­ lem of how to efficiently and peacefully get the workers—­slave and f­ ree—to work.” 77 Proslavery ideology emerged many ­decades ­later and only gained traction a ­century ­a fter the first slave codes ­were passed. The spread of the contagion of liberty leading up to the American Revolution and debates



The Peculiar Institution of Race

65

over slavery during the Constitutional Convention presented some of the first real challenges to supporters of slavery, who w ­ ere called upon to justify the practice to their ruling-­class peers. Traditions of ethnic identity with roots in feudal society eased the diffusion of racial ideas. The E ­ uropean peasantry became proletarians through ­organized dispossession, the violent enclosures of the commons, and resettlement in the new industrial cities. Before ­European nations set out to colonize Africa and the Amer­i­cas, they colonized E ­ urope. The ethnic and religious chauvinism that fueled this p­ rocess had proto-­racial aspects, as peasants faced systems of forced ­labor ­organized around ethnically based hierarchies.78 The enclosure of the commons typified pro­cesses of primitive accumulation, Karl Marx’s concept that refers to “the vio­lence of transformative pro­cesses that extract p­ eople and t­ hings from previously sustaining social relations and insert them into the capital-­relation that makes accumulation pos­si­ble.” 79 In Das Kapital, he explains that “primitive accumulation plays in ­Political Economy about the same part as original sin in theology.”80 A classic example that Marx provides is with reference to the “bloody legislation” that criminalized vagabondage, violently forcing newly masterless peasants into poorly paid and dangerous waged work. Marx also saw primitive accumulation in action in the American South, as the land was privatized and l­abor was extracted by vio­lence.81 No m ­ atter the aristocratic affectations of the planters and their dependence on slavery, Du Bois saw in the early southern economy one of the earliest cap­i­tal­ist economies and group of proletarians, and portrayed the slaves as proletarians par excellence.82 Robert Orwell observes that in eighteenth-­century South Carolina, slaves ­were permitted to sell their own ­labor on the city waterfront, which “inculcated among urban slaves an understanding that their ­labor or even their time was something they owned of themselves.”83 Marx used the concept of primitive accumulation to refer to the economic necessities that emerged in the transition from feudalism to capitalism, which suggests that it is appropriate to describe a precapitalist stage in history. It need not be relegated to explaining the past. Jodi Melamed explains that “capital can only be capital when it is accumulating, and it can only accumulate by producing and moving through relations of severe ­inequality among h ­ uman groups.”84 Primitive accumulation is an ongoing ­process that pulls forward and perpetuates relations established in the transition from feudalism and remains fundamental to the workings of capital.85 For Du Bois, slavery inaugurated and perpetuated “the American cap­i­t al­ist system ­because the essential function of the antebellum Southern economy was accumulation.”86 Race partitions dif­fer­ent forms of humanity as separate and distinct so they may be once again interconnected by reducing collective life to the relations that sustain capital.87 In the United States, that partition is what Du

66

C r i t i c a l Th e o r y o f R a c e   a n d P o l i c e

Bois called “the color line.” The ­process of defining slavery by race, and vice versa, took ­decades, but one of the earliest ­legal articulations of the identification was made by the upper ­house of the M ­ aryland Proprietary Assembly in a 1664 law, An Act Concerning Negroes & Other Slaues, which declared “all Negroes or other slaues already within the Prouince And all Negroes and other slaues to bee hereafter imported into the Prouince ­shall serue Durante Vita And all ­Children born of any Negro or other slaue ­shall be Slaues as their ffathers w ­ ere for the terme of their liues.”88 Once slavery was defined by race, skin color indelibly marked slaves, whose bondage was “a life sentence and a hereditary one.”89 What Loïc Wacquant refers to as “Amer­i­ca’s racial exceptionalism” has two unique features. First, “the United States is the only nation in the world to define as ‘black’ all persons with any recognized African ancestry, creating a rigid black/white division between two mutually exclusive communities.”90 For centuries a binary system served as a model for how race would function as a white/not-­ white division.91 Wacquant also observes that Blacks are the only social group in the United States “that cannot merge into white society,” b­ ecause the so-­called “one-­d rop rule”—­whereby “the offspring of any mixed ­couple are automatically assigned to the inferior category”—­applies solely to ­people with any African ancestry.92 The Bipartite R ac e Re lati ons That Police Bui lt Neocleous concludes that “the state fashions civil society, in par­tic­u ­lar by helping to make the working class.” 93 In the United States, race has always been central to working-­class formation and crucial to class control.94 A critical theory of U.S. police cannot survive a race-­blind approach, nor an approach that provides a class analy­sis that merely tacks on race ­a fter the fact. Rather, it must center an analy­sis of racial capitalism and account for the role police has played in constructing race itself, as well as in racialized class formation and class control. Class formation is embedded within and inseparable from historical pro­cesses of racialization. Marx writes in Das Kapital, volume 3, that the relationship between dominant and subordinate classes is founded in the specific economic form that facilitates the extraction of unpaid surplus l­abor from workers. The economic form “grows directly out of production itself and, in turn, reacts upon it as a determining ele­ment.” 95 This relationship of rulers and ruled “reveals the innermost secret, the hidden basis of the entire social structure.” 96 Friedrich Engels observes that this relation relates to state power, ­because “the production of the immediate material means of subsistence and consequently the degree of economic development attained by a given ­people . . . ​form the foundation upon which the state institutions . . . ​h ave



The Peculiar Institution of Race

67

been evolved, and in the light of which they must, therefore, be explained, instead of vice versa, as had hitherto been the case.” 97 An economy founded in racial slavery was the basis for p­ olitical institutions and social structures infused by race. The state investment in police, Neocleous argues, is to master the market and impose work, and so “the constitutive power of the state can be understood as the policing of civil society by the state.” 98 ­T hese purposes took on a unique hue in a slave society with a police whose primary objective was to ensure continued extraction of ­labor power from bonded workers and to protect markets against the ­resistance of the enslaved, w ­ hether in explosive moments of insurrection or in daily acts of theft. Through the definition of citizenship, the state granted self-­possession to whites on the basis of race, rendered Black workers as property, and placed the former in charge of policing the latter, using any extent of vio­lence they deemed necessary and with impunity assured by the state, both in law and in practice. Police is the institution sanctioned by the state to use coercive vio­lence. Its purpose is articulated by the state through a mandate to fabricate a specific kind of social order, namely one that is most conducive to capital accumulation through the extraction of l­abor power using w ­ hatever pro­cesses are favored at the time by the cap­i­tal­ist class. A core component in the administration of capital accumulation, indeed to the very security of the cap­i­tal­ist economy, is maintaining the control of workers, the reserve army, and surplus populations. Police is an activity rooted in the state conception of proper order and is made active through the ­organized mobilization of state vio­lence for the purpose of fabricating that order and maintaining it thereafter, chiefly through class formation and regulation, taking raw l­abor power and imposing work, and administering the class of poverty produced by systematized exploitation. If we accept a definition of police that includes “individuals given the general right to use coercive force by the state,” then we are left with the task of explaining the remit issued by the state to all white citizens to police all Blacks.99 Through policing, the state makes “creatures of its own devising.”100 The state made the white citizen and the Black anticitizen. As Du Bois writes in The Souls of Black Folk, the “police system was arranged to deal with blacks alone, and tacitly assumed that ­every white man was ipso facto a member of the police.”101 Police was not a mere mediator between state and civil society, but rather was a means by which sovereignty was shared between the state and white citizens in order to si­mul­ta­neously exclude Blacks from civil society and nonetheless regulate their presence and l­abor within it. Police and civil society overlapped. Police do not merely respond to already racialized populations. The police are an essential tool of the state in containing class strug­g le, in part through making racial distinctions material, racializing populations through

68

C r i t i c a l Th e o r y o f R a c e   a n d P o l i c e

targeted surveillance, repression, and vio­lence.102 Blacks ­were totally excluded from citizenship and all whites ­were enrolled in policing. This persisted through the nineteenth ­century ­u ntil Blacks ­were made citizens and a two-­ tiered form of citizenship emerged. But also through the course of the nineteenth ­century, as a settler colony transformed into the core of a world cap­i­tal­ist system, the state became better defined, and its administrative power grew. Just as being policed was fundamental to the initial racial formation of Blacks, being the police was definitive of whiteness. Despite their inattention to police, Theodore W. Allen, Noel Ignatiev, David Roediger, and Joel Olson are crucial to the pre­sent study. Their work helps in reinterpreting Mark Neocleous’s critical theory of police power by replacing the E ­ uropean history at its foundation. It is surprising that t­ hese historians and theorists of race barely mention police, ­because they are all deeply influenced by W.E.B. Du Bois, and particularly his “public and psychological wage” concept. This phrase appears in a paragraph in Black Reconstruction that specifically mentions that constitutive of white workers is that “the police ­were drawn from their ranks.”103 Given that historians of race endeavor to help us “to recognize racial distinction as the obscured mode of institution of society that has been retained across changes in formal racial categories and degrees of inclusion,” Nikhil Singh points to the efficacy of looking to the “long arc of criminalizing blackness” and the policing thereof.104 Addressing the “public and psychological wages” paid to loyal white workers, Du Bois observes a host of advantages they enjoyed: They ­were given public deference and titles of courtesy ­because they ­were white. They w ­ ere admitted freely with all classes of white ­people to public functions, public parks, and the best schools. The police w ­ ere drawn from their ranks, and the courts, dependent upon their votes, treated them with such leniency as to encourage lawlessness. Their vote selected public officials, and while this had small effect upon the economic situation, it had ­g reat effect upon their personal treatment and the deference shown them. White school­houses w ­ ere the best in the community, and conspicuously placed, and they cost anywhere from twice to ten times as much per-­capita as the colored schools. The newspapers specialized on news that flattered the poor whites.105 For the pre­sent inquiry, it is worth underscoring that “the police ­were drawn from their ranks” and that “white men became a law unto themselves,” allowing for ­t hese qualities of the public and psychological wage to inform our conceptualization the white race and police. Elsewhere in Black Reconstruction, Du Bois writes:



The Peculiar Institution of Race

69

The system of slavery demanded a special police force and such a force was made pos­si­ble and unusually effective by the presence of the poor whites. This explains the difference between the slave revolts in the West Indies, and the lack of effective revolt in the Southern United States. In the West Indies, the power over the slave was held by the whites and carried out by them and such Negroes as they could trust. In the South, on the other hand, the ­g reat planters formed proportionately quite as small a class but they had singularly enough at their command some five million poor whites; that is, ­there ­were actually more white ­people to police the slaves than ­t here ­were slaves. Considering the economic rivalry of the black and white worker in the North, it would have seemed natu­r al that the poor white would have refused to police the slaves. But two considerations led him in the opposite direction. First of all, it gave him work and some authority as overseer, slave driver, and member of the patrol system. But above and beyond this, it fed his vanity b­ ecause it associated him with the masters.106 Consider Du Bois’s claims in light of two laws passed in late seventeenth-­ century Carolina. A 1686 law permitted any white citizen to apprehend, chastise, and send home any slaves found off their plantations without written authorization. The Act for the Better Ordering of Slaves, enacted by the legislature in 1691, required all white citizens to capture and return escaped slaves. As Sally Hadden observes, this “mandated duty effectively turned the entire white population into a community police force.”107 Rather than just paying citizens to police, they ­were also fined for failing to perform this duty. By 1696 the law required all whites to apprehend Blacks and to whip ­those who did not possess a pass. This new law “protected any white person inspecting a ticket by declaring that if a slave resisted, he could be beaten, maimed, assaulted, or even killed if he resisted or took flight.”108 South Carolina established the first official police to regulate slaves in 1704. At this point, the idea of a white and Black race was yet to be broadly accepted. B ­ ecause the patrols w ­ ere composed of all white colonists, and their attention was drawn to all Blacks, the slave patrols ­were fundamental to the creation of race as an institution. Lerone Bennett Jr. so brilliantly captured the role of whites in reproducing the bipartite race relations represented in the color line idiom that it deserves being quoted directly at length. He explains that individuals act as both group-­individuals and institutions-­individuals. On one hand, “individuals improvise themselves into group-­individuals and participate in the oppression of black p­ eople by supporting or taking part in the praxis of the  pressure groups that have a vested interest in black subordination.” 109

70

C r i t i c a l Th e o r y o f R a c e   a n d P o l i c e

On the other, “individuals acting as institutions-­individuals participate in the p­ rocess of exploitation by manipulating the levers of objectively racist institutions.”110 Once constituted as such: the fabric of the system is woven out of millions of individual acts of oppression and indirect institutional exploitation. And since the system would crumble if it w ­ ere not continually reinvented by the acts of individuals, the system protects itself by continually producing and reproducing colonizers. This, however, does not absolve the colonizer of responsibility for maintaining the system. For although they w ­ ere born into the system with a certain skin-­uniform that committed them from birth, and although they live and breathe in the ambiance of racist institutions, it is still up to them to give meaning to themselves and the system by deciding how they are g­ oing to live their life within a system which makes them illegitimately privileged persons and oppressors, no m ­ atter what they do or say.111 The work of the patrols, Christian Parenti finds, “helped construct the meaning of ‘whiteness’ as violently anti-­black.”112 In addition to this repressive dimension, ­there was a profoundly productive aspect to this work. Policing made being white more than an idea; it became a practice. As Hadden explains, “serving in the patrols gave white men more than the chance to brutalize bondsmen in their community—­ service meant camaraderie and social interaction with other whites.”113 The policing of Blacks by whites was a critical location for the founding of the cross-­class alliance, which in turn has remained a most basic form of the public demand for police. ­T hose who accept Erick Monkkonen’s argument that modern police are defined by being issued uniforms, we should include the “skin-­ u niform” that was issued in the first slave laws that defined slavery by Blackness and police by whiteness. The law allowed for t­ hose with means to hire someone as a substitute. A consequence was that race was given a significance above class in the formation of the identity and consciousness of white workers. As Philip Reichel notes, “one result of the ‘patroller for hire’ p­ rocess was patrols consisted of boys or idle men whose primary ambition, other than making some easy money, seemed the harassment of slaves.”114 ­A fter slavery was abolished, some young men in Tennessee continued this harassment of freedmen, ritualizing the practice in their club, the first ­organization of the Ku Klux Klan.115 Steve Martinot explains that it is “the normativity of seeing ­others as non-­white” that “constitutes their very consciousness of being white.”116 He explains the antecedent to this is slave law, which established the policing of Blacks and the state’s authorization for slave ­owners to brutalize, rape, and murder their ­human property. As this race relation was normalized, the



The Peculiar Institution of Race

71

­ ere core association of whites with police was too, and so both relations w to white identity. Consequently, the consciousness of whites prevents them from recognizing that the police operate by noticing non-­whites, and the criminalization of Blacks is naturalized.117 Race is dependent upon visual distinguishability between or among groups. As Martinot explains, race “is based on a dominant group noticing a vis­i­ble characteristic to which a prior negative valuation has been given, and through which the dominant group superiorises itself by inferiorising ­those it notices. While it grounds itself in generalisations of the other, that generalisation is in­ven­ted for the purposes of racialisation, and is thus both gratuitous and arbitrary.”118 Martinot explains that vio­lence is inherent to racialization ­because “the identity of the dominant group is dependent upon the inferiorisation of the subjugated group, requiring that inferiorisation to be continually renewed in order for self-­identification of the dominant group to retain its value.”119 By this he means that “renewal” is enacted not only through speech, but through state-­sanctioned violent coercion. This vio­lence then becomes central to white identity. Martinot explains that, “in effect, subjugated ­people reside at the core of the dominant identity, yet must be continually evicted from it in order for that identity to preserve itself. Exclusion as a form of inclusion, separation as a form of identification, vio­lence as a form of social stasis, the gratuitous as a form of necessity, are what characterise the foundations of race, and reveal race to be a system of social relations rather than an inherent character of ­people.”120 ­Because the state maintains a mono­poly on vio­lence and grants this remit to police, the activity of policing grants a violently anti-­Black dimension to white identity that is practical. The normalization of the frequency and intensity of state vio­lence against Blacks, and the naturalization of definitions of crime and the means of preventing it, form the basis for a white racial identity that reinforces a very specific kind of police fetishism, where the suppression of Blacks is seen as a functional prerequisite for social order such that without a police force chaos would ensue.121 The cross-­class alliance means that whites in all classes w ­ ill identify with the bourgeois order of the white democracy, and so align their own interests with the reason of state. Said differently, being white means seeing the extant social order as a precondition for one’s liberty, even one’s very existence, and seeing Blacks as a threat to that order, and therefore one’s existence. This grants the state—­a nd so police—­a public mandate to police Black bodies, communities, and spaces. In Policing Black Bodies, sociologists Angela  J. Hattery and Earl Smith provide a definition of policing with race at its center. They explain policing as both “the literal use of police force to control the be­h av­ior of Black ­people” and “the control, regulation, and surveilling of Black bodies: how

72

C r i t i c a l Th e o r y o f R a c e   a n d P o l i c e

Black p­ eople are allowed to ‘be,’ where Black p­ eople are allowed to go and when, and what choices Black p­ eople are allowed to make.”122 This ele­ment of their definition is relevant to the pre­sent inquiry, as is their observation that “Black bodies are policed in a variety of ways that do not involve ­either law enforcement or the criminal justice system.”123 Their general point shows an enduring relationship between police and Blacks observed by Gunnar Myrdal in his 1944 An American Dilemma: The Negro Prob­lem and Modern Democracy. Police are “the personification of white authority in the Negro community.” The individual officer “stands not only for civic order as defined in formal laws and regulations, but also for ‘white supremacy’ and the ­whole set of social customs associated with this concept.”124 Recognizing the distribution of sovereignty discussed above, Myrdal observes that “a sort of delegated police power over Negroes is assumed to belong to other white persons.” This is not incidental but “a sort of taken-­for-­g ranted conspiracy” for all white p­ eople to use intimidation and vio­lence to keep all Blacks “in their place.”125 Together the public demand of white citizens on police to reinforce the racial order and the “indulgence of private white persons in taking the law into their own hands” means that “the boundary line between public functionaries and private citizens is thus blurred.”126 The error in defining police by the issuance of uniforms, citywide jurisdiction, or round-­the-­clock ­service is only bested by defining race on the basis of biology, ethnicity, or identity. Race is the ­political ascription of ­people into hierarchically ordered categories on the basis of some visibly discernible features for the purpose of mystifying the bases of class antagonism and facilitating capital accumulation, particularly through the hyperexploitation of the subordinate groups and the cross-­class loyalties of the working class in the dominant racial group. Police is crucial to the historical formation of the color line, for its continued maintenance, and for its reconfiguration in times of crisis. In British colonial Amer­i­ca, this relationship was reciprocal, ­because the practical deployment of police reified race: to be white was to be the police, and to be Black was to be policed.

P a r t Tw o

The Police Law of Slavery1 Any search for origins entails finding a point in time when the m ­ atter in question did not yet exist and locating the pro­cesses by which it came into existence. Before building an economy on a foundation of racialized chattel slavery, the ­English saw themselves as being exempt from ­human bondage. Only convicts and debtors ­were exceptions from the prohibition on servitude. They did not yet see themselves as white, nor did they have a concept of race. They also did not see slavery as something to which only Africans ­were relegated. ­England came late to colonize the so-­called New World and was well ­behind Spain and Portugal in trading enslaved Africans. When the ­English first established settlements in North Amer­i­ca, they held no slaves, they had barely dabbled in the trade of slaves to the Spanish, and their home country was unusual in that it was not a society where slavery was prevalent. In ­Virginia, ­M aryland, and Barbados, ­England created a slave society from scratch. In Carolina, a slave society was imported from Barbados. In New York, E ­ ngland acquired a slave society built by the Dutch. In each, local peculiarities of economy and geography ­shaped the system of slavery, the early structure of race, and methods for maintaining control over bonded workers. When E ­ ngland founded V ­ irginia in 1607, it was the only kingdom settling the so-­called New World that was not establishing colonies intended to exploit slave ­labor. By the last ­decades of the ­century, as ­Virginia increased its imports of enslaved Africans to offset a shortage of servants coming from ­England, a new settlement to the south, Carolina, imported a slave society from Barbados. Farther north, ­England ended a protracted conflict with the Dutch by acquiring an already-­formed society with slaves on Manhattan Island. In each of ­t hese three colonies, ­England developed economic engines fueled by the l­abor power of the enslaved. Each colony showed that despite differences in their spatial, social, and ­political landscapes, the enslaved population was feared for its latent insurgent power, a power that was infrequently though spectacularly actualized, thus transforming ­those fears into a clear mandate that gave shape to new institutions. One institution, police, was created in tandem with another, race, with each defining one another. 73

74

Th e P o l i c e L a w o f S l av e r y

­ irginia’s gradual introduction of racial slavery and relatively small slave V population saw the slow introduction of slave law and ad hoc methods of policing. South Carolina, on the other hand, copied comprehensive slave laws from Barbados before importing enslaved Blacks by the tens of thousands, and developed a dedicated police force when the colony was still fledgling. Law does not have a direct and unmediated influence on policing and broader practices of social control. It does, however, reflect the priorities, values, and worldviews of ­those who influence, write, and pass legislation and other policies. This part of the book looks at the ways that slavery was defined in law and practice. It provides a look at crises of production that drove the colonies to rely on African slave l­ abor and how the colonists come to define Africans as a threat to security. In attempting to resolve a crisis of underproduction, the colonists produced a crisis of security. By looking at ­Virginia, ­M aryland, Barbados, Carolina, New Netherland, and New York, we see how dif­fer­ent colonies confronted ­these crises in slave law, eventually providing definition to the police mandate. Local ­factors in each ­colony, a confluence of their own specific social, cultural, economic, and p­ olitical conditions, ­shaped the possibilities for race to resolve the crisis of security. Each of the three chapters in this part addresses ­these local conditions, but nonetheless establish that slavery, race, and the police mandate originated together. Chapter 3 depicts early V ­ irginia, showing that the trade in slaves, the use of slave l­abor, and the presence of Africans began in fits and starts. Nearly a c­ entury passed between initial settlement and when slave ­l abor was fundamental to the colonial economy. The few Africans who ­were in the colonies during the first half of the seventeenth ­century did not arrive certain to be dispossessed of their very bodies for the rest of their lives. That dispossession was a result of a series of economic transitions and the l­egal and p­ olitical actions that facilitated them. Race was not initially the basis for chattel slavery—it became that basis in the same moment that slavery became the basis for race. The white race and the Black (or “Negro”) race ­were created through the transition to an economy that relied on chattel slavery and the police power that maintained security within the colony. In chapter 4, we see a similar p­ rocess happening more rapidly in Barbados, as a consequence of the transition to a sugar plantation economy that relied on a large quantity of strong, resilient workers. The profit potential of sugar production led to a deep investment in enslaved ­labor, which paid handsomely, both for the crown and the nascent cap­i­t al­ist class. Barbados is especially relevant to the pre­sent inquiry ­because its economic and ­legal structure was imported to Carolina, which was home to the first dedicated police ­organization. T ­ here the West Indian model adapted to unique conditions of



The Police Law of Slavery

75

plantation production of dif­fer­ent cash crops on the mainland. Carolina’s developments in turn influenced the structure of production and policing throughout the South. The origins of race and slavery look dif­fer­ent in New York ­because ­England essentially inherited a slave society built by the Dutch, rather than building one from scratch. As we see in chapter 5, by the time the E ­ nglish crown ruled over Manhattan, a system of racial slavery was already in place. Despite considerable economic and geographic differences, slave law and the police mandate in New York resembled that of ­Virginia by the end of the seventeenth ­century.

C hap te r 3

The Genesis of Race in Colonial ­Virginia

­Virginia was initially founded in 1607 with a mandate to spread Chris­tian­ity through expansive settlement and to experiment in the lucrative plantation economy the Spanish and Portuguese had already established in the Atlantic. The colony transformed over the course of the seventeenth ­century, with its population and economy growing in fits and starts. At the turn of the ­century, it was only beginning to be clear to its 58,560 residents that chattel slavery could be the foundation of the colony’s economy. It was less clear at the time that ­England’s colonies in the Atlantic would be a significant economic engine for the kingdom, much less the hub of a global economy. ­A fter all, at the time, ­Virginia produced less than 2 ­percent of ­England’s income, roughly equivalent to a small ­English county.1 Throughout the Atlantic colonies, slavery became inseparable from new ideas and policies that constructed race as an institution. It was in the ­English colony of V ­ irginia that a peculiar binary racial system first emerged and crystallized. Most of the structures that would lend p­ olitical significance to race w ­ ere nonetheless instantiated when slavery was an insignificant economic ­factor and when the African population was a demographic triviality. The initial work of fabricating the color line was mostly concerned with issues of economic and ­political security. Plantation production birthed a new cap­i­tal­ist economy and race became fundamental to class formation. As that very economy was fully dependent upon bonded laborers who w ­ ere prone to ­resistance and rebellion, race became a crucial ingredient for social stability. In 1585 Sir Walter Raleigh established ­England’s first mainland colony, on Roanoke Island on the Outer Banks of North Carolina. This short-­lived settlement was the sole presence of the ­English on the mainland ­u ntil 1607, when the first permanent settlement was established on the Chesapeake Bay, in Jamestown, ­Virginia. Jamestown was founded the year following the ­L ondon Com­pany’s First Charter of V ­ irginia. Even by 1619 t­here was still 77

78

Th e P o l i c e L a w o f S l av e r y

not any p­ olitical basis by which to refer to this as the ­Virginia colony, rather than the occupied territory of Tsenacommacah, home to the Powhatan ­people. It was not ­u ntil 1646 that the settlers entered a formal agreement with the Powhatans, but according to King James I, the land was “not now actually possessed by any Christian Prince or ­People,” so the land was ­there for the taking.2 Establishing and institutionalizing E ­ ngland’s slave trade and the plantation system took ­decades of ­political maneuvering, in part ­because at the outset ­there was no specific plan for their development. For King James I, the settlement in the Roanoke valley was intended to spread Chris­ tian­ity. Also clear in the First Charter of 1606 is that slavery was initially illegal. King James I decreed that “all and e­ very the persons” who inhabit the colonies, including all c­ hildren born in the colonies “­shall have and enjoy all liberties, franchises and immunities within any of our other dominions, to all intents and purposes as if they had been abiding and born within the realm of E ­ ngland.”3 The revised charter of 1609 reiterated the point. The first settlers of Jamestown entered indentures with the ­Virginia Com­pany, trading years of ­labor in exchange for shares in the colony’s profits. During the first years of colonization, to attract more settlers, the com­ pany changed the terms of the offer, granting land in return for ­labor. Indentured ­service was built on a feudal tradition of apprenticeship and a reform to that tradition from the Tudor era. In 1563, Parliament passed the Statute of Artificers, which imposed a national system of apprenticeship for the skilled trades.4 Apprentices and servants w ­ ere contractually bound to their masters by a “covenant merely personal” deed. The worker was responsible for fulfilling a term of s­ervice in exchange for training and maintenance. At the end of that term, the apprentice or servant was given a written release to serve as l­egal proof of fulfilling the terms of the indenture. Indentures represented not only a means of acquiring skills, but the only opportunity for class ascension. In the so-­called New World, the added reward of property all but ensured it. Theodore Allen best characterized the colonial regime of the first two ­decades as an “open military dictatorship.”5 The 1609 charter of the ­Virginia Com­pany called for the installation of a military governor, Sir Thomas Dale, to rule the fledgling colony. Shortly ­after his arrival in 1610 and ­until the summer of 1619, a set of o ­ rders published ­under the title Lawes Divine, Morall, and Martiall, &c. provided the ­legal and ­political structure of the settlement. ­These ­orders reveal the state’s earliest articulation of its intentions and investments in social order, including the readiness to mobilize state vio­lence to produce and maintain it. They also established that the militia, ­under the command of colonial administrators, would be certified in the use of coercive vio­lence against citizens, a pre­ce­dent that would extend well beyond the life span of the ­orders themselves. ­These laws required all settlers to attend church twice ­every



The Genesis of Race in Colonial ­Virginia

79

Sunday, and they ­were whipped for failing to do so. A third violation was punished by death. Settlers who swore or spoke disrespectfully against clergymen and officials of the V ­ irginia Com­pany w ­ ere to be punished by having n ­ eedles driven through their tongues. Capital punishment was a permissible punishment for blasphemy, public criticism of the com­pany, sodomy, swearing false oaths, and “bearing false witness,” in addition to theft and murder. T ­ hese strict laws not only regulated cleanliness, moral be­hav­ior, and religious practices; core components of the o ­ rders structured the administration of the economy. Laws regulated the collection of debts and trade with ship captains and indigenes, prohibited the unnecessary killing of livestock, compelled tradespeople to work, and required all men capable of bearing arms to muster for militia ­service. One could be killed for trading with or stealing from indigenes or sailors without permission. The o ­ rders ­were supplemented by further commands issued by Dale, showing a deep penetration of the state into everyday life, governing every­ thing from personal conduct and cleanliness to the destruction of livestock and farm equipment. The regime thus had a quality of ad hoc rule comparable to the earliest use of state policy in ­Europe, which Neocleous describes as the first stage of police.6 Where E ­ ngland and the colonies especially differed was that the former was concerned with the transition from feudalism, chiefly the breakdown of the rule of the estates and traditional social control. The colonies ­were building a new order entirely. The move was rapid, from initial colonization to the construction of a local cap­i­tal­ist economy that would soon serve as the linchpin for a global cap­i­t al­ist system. In less than two ­decades, this military dictatorship underwent a transition into a nascent modern democracy, created through elite opposition to the crown’s regulation of trade, ultimately establishing a state power that would facilitate private capital accumulation. When Sir George Yeardley arrived in Jamestown in April 1619, the Lawes Divine, Morall and Martiall, &c. ­were abandoned, and the General Assembly, Colony Council, and General Court w ­ ere founded. This transition was driven by the bourgeoisie, who resented the colonial administration of commerce and restrictions on the planting of tobacco, and the acquiescence of the crown.7 Regardless of this move away from a military dictatorship, militia leaders, most of them former mercenaries who had fought wars in Ireland and the Netherlands, w ­ ere nonetheless tasked with “the maintenance of social control in the interest of the tobacco bourgeoisie.”8 The colonial elite was created through land titles and headrights issued to investors in ­Virginia stock. For ­every £12½ share, planter cap­i­tal­ists received ­free title to one hundred acres of land.9 When sufficient ­labor to work the land was provided, the title was doubled. The headright system granted fifty acres of land for ­every laborer they financed who embarked from ­England—­even if that laborer died en route or during

80

Th e P o l i c e L a w o f S l av e r y

the term of indenture. Once the land was surveyed and determined to be “sufficiently peopled,” the headright grant was doubled. The concentration of land owner­ship would increase by the end of the ­century, but already in 1626, 20  ­percent of the land patents ­were for 200 acres or more, together equaling half of all patented acreage.10 In a 1610 census, ­t here ­were only 350 settlers in ­Virginia.11 The ­Virginia population increased at a rate of 525  ­ percent from 1620 to 1630, and 318 ­percent the following ­decade. This growth was in spite of a staggering death rate. Of the 600 colonists pre­sent at the beginning of 1619, b­ ecause of wars with the indigenes, mass starvation, and disease, half ­were dead by March  1625.12 On March  22, 1622, one-­third of the total population of ­English colonists died during a b­ attle with indigenes from the Powhatan Confederacy.13 The likelihood of death did not stall the colonization effort. As Theodore Allen explains, “the E ­ nglish promoters of colonization . . . ​ scrupled not at a 25 ­percent death rate if a 25 ­percent profit could be made in the ­process.”14 Profit alone was not the sole driver of colonial expansion. The crown saw it as a means both to relieve the instability produced by surplus population in E ­ ngland and to promote E ­ nglish power during a time of considerable growth for the Spanish, Portuguese, and Dutch empires.15 As Bennett notes, “white servitude, black servitude, ‘representative democracy,’ and bride purchase ­were inaugurated in Amer­i­ca at roughly the same time.”16 In 1619 Jamestown “installed the new ­House of Burgesses, shipped its first big load of tobacco to ­England, formalized a new system of white servitude, inaugurated a new system of private property, and welcomed a shipload of brides, who w ­ ere promptly purchased at the ­going rate 17 of 120 pounds of tobacco each.” The 1620 census for Jamestown included twenty Africans, brought to V ­ irginia in 1619. This was not their intended destination. It was by chance—or rather, the mismanagement of resources by the captain of the pirate vessel that transported them—­that they found their way into Jamestown. Short on food and ­water, ­a fter stopping in Point Comfort on the outskirts of the V ­ irginia settlement, the governor traded provisions in exchange for the twenty enslaved Africans onboard the ship.18 The first ­free Africans in the American colonies ­were slaves who completed their terms, and some of them became slave ­owners themselves. It is hard to draw strong inferences from this, b­ ecause Blacks did not arrive in notable numbers for d­ ecades. In 1624, the Black population had barely changed, while slightly more than half of the 873 men ­were white bondmen, and forty-­six of the 222 w ­ omen w ­ ere servants.19 Half a c­ entury a­ fter the arrival of the first Africans, ­t here ­were still only 2,000 Blacks and more than 33,300 E ­ uropeans in V ­ irginia. At that time, together they accounted for roughly one-­t hird of the population of the ­English colonies on the mainland, a proportion that would steadily decline u ­ ntil beyond the American



The Genesis of Race in Colonial ­Virginia

81

Revolution. Blacks w ­ ere a small minority of the total V ­ irginia population for most of the seventeenth ­century. In 1620, they accounted for just 5 ­percent, ­a fter which the proportion dropped. The Black population did not exceed that share for another fifty years, and V ­ irginia never had a Black majority. ­Decades passed between the initial arrival of Africans and the creation of a l­egal basis for chattel slavery. While lifetime servitude existed in the first half of the seventeenth ­century, it was rarely by design. Though the common period of indenture was four years, most servants may well have been slaves for life, ­because they died before the end of their terms of indenture. The cost to purchase a slave was far greater than the cost of a servant, which is a main reason why servitude persisted even ­a fter the early experiments with slavery.20 From the time the colonists arrived and for several ­decades, ­there was no consensus about race, and certainly not one that was grounded in skin color, uniting all whites, Blacks, and indigenous p­ eople into separate, mutually exclusive, homogeneous groups. The first bonded workers, African and ­European alike, w ­ ere slaves for a term. What slavery was and could become was deeply informed by the imagination, aspirations, and fears of colonists. During the seventeenth c­ entury, ideas held by E ­ ngland’s colonial administrators and settlers about slavery and slaves came from their knowledge of distant ­English plantation colonies, from the status of Blacks in the Iberian social order, and from Spain’s colonies in the Atlantic, where “slavery was both commonplace and not especially controversial.”21 In 1670 a young ­English colony in the C ­ aribbean, Barbados, was roughly 60  ­percent Black, while ­Virginia was at 6  ­percent. In Spain and Portugal, “sub-­Saharan Africans ­were neither the most despised group within the Iberian social order—­that place was generally reserved for e­ ither Jews or Moriscos—­nor w ­ ere they necessarily always held in bondage,” as “it was not difficult for slaves to become ex-­slaves through manumission or self-­purchase.”22 In Spanish Amer­i­ca, ­free Africans w ­ ere plentiful, especially in urban centers and port cities. Nonetheless, when they looked to the extant Portuguese and Spanish colonies in the Atlantic, the E ­ nglish saw an already-­institutionalized slave trade and system of slave l­abor that used Africans almost exclusively. Being of African origin did not guarantee one was a slave in New Spain, but being a slave almost certainly ensured one was from Africa or descended from Africans. Slavery in the so-­called New World was racialized before the ­English even had a concept of race. Many among the E ­ nglish abhorred the treatment of African slaves by the Spanish, but it was not long before some showed they w ­ ere open to participating in the trade and enslavement of Africans. For the working class in the early ­decades of ­Virginia, the notion that Blacks w ­ ere inferior to whites would have lacked a rationale. For almost a

82

Th e P o l i c e L a w o f S l av e r y

c­entury a­fter the founding of Jamestown, Africans and E ­ uropeans lived, 23 loved, and rebelled together. As Peter Parish observes, “early Chesapeake society did not impose a rigid system of racial discrimination” and t­ here was “more informal social contact between whites and blacks, at least at the lower end of the social scale, than in most l­ater periods of American history.”24 Any notions of Black inferiority would have lacked a practical referent in the world, especially during the 1620s. At that time, t­here w ­ ere five formally recognized classes in the colonies. Gentlemen and freemen comprised the bourgeoisie, and small i­ndependent farmers and artisans the petit bourgeoisie. The working class was divided by “tenants-­a s-­h alves,” hired servants, and apprentices, but by 1622, the distinctions among them w ­ ere practically erased a­ fter conflicts with indigenous ­peoples, disease, and famine plunged them all into a precarious existence. Throughout the ­century, ­f ree Blacks owned property, including land and servants, and in courts they could bring suit, testify, and serve on juries. 25 Limitations on ­t hese abilities ­were irregular and likewise had the occasion to impact ­Europeans with lower status. The Creation of Rac e i n Slave L aw Despite regular consorting among Blacks and whites, and the small share of the population made up by the former, the law was already noting racial difference as early as 1624, when the testimony of John Phillip was recorded with the descriptor “a negro Christened in E ­ ngland 12 yeers since.” Higginbotham asserts that “in a jurisdiction where black did not carry the stigma of inferiority, Phillip’s race and religion would not be material to the determination of ­whether his testimony was admissible in court b­ ecause the blemish of his race would not need to be washed clean by the grace of his Christian religion.”26 On the other hand, the nationality, ethnicity, and religion of anyone other than E ­ nglish Christians was routinely noted in courts and in law. Higginbotham concedes that recognizing Phillip as “a Negro Christened” merely marked his “otherness.” Six years ­later, an ­English settler named Hugh Davis was tried and punished by whipping for miscegenation ­a fter sleeping with a Black ­woman. The court said “he defiled his body by lying with a negro,” which Higgenbotham argues was b­ ecause the w ­ oman Davis had sex with was Black.27 While the court’s acknowl­edgment of miscegenation is deserving of attention, the courts nonetheless used similar terms to castigate anyone who had sex outside of marriage. What is especially noteworthy in this case is that the court specified that he be whipped “before the assembly of negroes & ­others.” The effect of such cases, Higgenbotham claims, was to “convince the white colonists, regardless of their social or economic status, that they are superior to the black colonists. In that way, white servants, who may in



The Genesis of Race in Colonial ­Virginia

83

real­ity have more in common with black servants, ­w ill identify with propertied whites, with whom they may have l­ittle in common other than race.”28 It is precisely ­because Blacks ­were not already universally seen as inferior by whites that they needed this convincing. Race was not yet made, and so ­these juridical activities ­were some of the earliest components used in fabricating race.29 Two laws passed in 1639 made ­Maryland the first of the ­English mainland colonies to recognize slavery as a ­matter of law.30 An Act for the Liberties of the P ­ eople guaranteed all Christian inhabitants the same rights as the ­English—­“Slaves excepted.”31 Slaves ­were also excluded from An Act Limiting the Time of Servants. At the time, t­here w ­ ere very few Blacks in the province. E ­ uropeans w ­ ere never held for life in M ­ aryland, so t­hese exclusions mostly affected enslaved indigenes, also few in number in the province. Nonetheless, ­Virginia’s Chesapeake neighbors had established a pre­ce­dent that would eventually transform the ­political economy of E ­ ngland’s mainland colonies. In what Anthony S. Parent Jr. considers “the first instance of race as a delimiter in V ­ irginia law,” a law passed by the General Assembly in 1640 required that masters supply guns and ammunition to members of the h ­ ouse­hold, including servants, with the crucial caveat “excepting negros.”32 Black landholders retained the common-­law right to bear arms, but this “harbinger of changing attitudes” was a first reflection in law of planters’ fears of Black bonded workers, despite their accounting for about 1 ­percent of the V ­ irginia population at the time. 33 In 1640, ­there ­were fewer than 600 Blacks in all of the mainland colonies, part of a total population of 26,634. Roughly 150 of them ­were in ­Virginia. That year a ­legal basis for lifetime servitude was initiated when the ­Virginia court established a pre­ce­dent for using it as punishment for runaway servants. The ­English, like many socie­ties the world over, had a long tradition of using slavery as a form of punishment. This case from July  9 involves three servants who fled. The court ordered “the said three servants ­shall receive the punishment of whipping and to have thirty stripes apiece.”34 The ruling listed the nationalities of each of them: “one called Victor, a Dutchman, the other a Scotchman called James Gregory,” and “the third being a negro named John Punch.” The court ruled that the first two “­shall first serve out their times with their master according to their Indentures, and one w ­ hole year apiece a­ fter the time of their s­ ervice is Expired,” and that “­a fter that ­service to their said master is Expired to serve the colony for three ­whole years apiece.” John Punch, on the other hand, “­shall serve his said master or his assigns for the time of his natu­ral Life h ­ ere or elsewhere.” What is unique about this case was not the use of slavery as a form of punishment, but rather the duration of the term relative to the severity of the

84

Th e P o l i c e L a w o f S l av e r y

offense and that the length of the term was determined on the basis of national origin. Though slavery was not entirely absent before, this ruling ultimately served as the first l­egal basis for racialized slavery. Coates argues that “John Punch’s name should go down in history as being the first official slave in the E ­ nglish colonies.”35 The pre­ce­dent was not absolute, for on July  22 of the same year the court ruled on the complaint of Captain William Pierce. In this instance, “six of his servants and a negro of Mr Reginolds . . . ​plotted to run away unto the Dutch plantation from their said masters,” absconded with “the skiff of the said Capt Wm Pierce their master, and corn powder and shot and guns,” and then “sailed down in the said skiff to Elizabeth river where they ­were taken and brought back again.”36 The punishments w ­ ere harsh, in part ­because the Board de­cided it “a dangerous p[re]cident for the ­f uture time (if unpunished).” Christopher Miller and John Williams w ­ ere both noted for their being Dutch, and the latter for being “a Chirugeon” (surgeon). Miller received the harshest punishment for being “a prince agent in the business.” The court ruled that he “should receive the punishment of whipping and to have thirty stripes, and to be burnt in the cheek with the letter R and to work with a shakle on his legg for one w ­ hole year, and longer if said master ­shall see cause and ­a fter his full time of ­service is Expired with his said master to serve the colony for seven ­whole years.” Williams received a punishment of seven years of ­service to the colony beyond the period of his indenture with Pierce. Peter Wilcocke was whipped, burned on the cheek, and held for three additional years by the colony. “Emanuel the Negro” was whipped, branded on the cheek, and assigned to “work in shakle one year or more as his master ­shall see cause.” Richard Cookson was given an additional two and a half years in bondage with the colony. Andrew Noxe was whipped and Richard Hill was released without punishment. Clearly in this case, only weeks a­ fter that of John Punch, the punishment was not assigned as much by race as on the basis of the role they played in their escape. The prob­lem of runaway servants and slaves was addressed for ­decades in the General Assembly. In 1643, it addressed the prob­lem of “divers loytering runnaways in the collony who very often absent themselves from their masters s­ervice,” and in many cases resulting in “the losse of their year’s ­labour before they be had.”37 The Assembly enacted a law whereby servants would be punished for the first offense with an extension on their indenture equal to twice the time they w ­ ere absent, “And in some cases more if the comissioners for the place appointed ­shall find it requisite and ­convenient.”38 ­A fter a second offense, runaways w ­ ere to be “branded in the cheek with the letter R. and passe ­u nder the statute of incorrigible rogues.”39 This latter stipulation shows a peculiar interest of the state in administering



The Genesis of Race in Colonial ­Virginia

85

work, similarly classifying vagabonds and runaway servants, where included among their crimes was nonparticipation in producing value for the ruling class. Fi­n ally, if the runaways furnished weapons to indigenes, they ­were punished by death. By the ­m iddle of the ­century, slavery was becoming more common, but it lacked any l­egal foundations. Colonial law on the m ­ atter was not yet established through court rulings or legislation, and ­English common law had abolished slavery d­ ecades e­ arlier. Perhaps the most impor­tant pre­ce­dent in legalizing chattel slavery was established in a 1655 ruling involving Anthony Johnson and his Black servant John Casor. Anthony Johnson was an indentured servant of African descent, brought to ­Virginia and whose term began in 1621. Johnson was freed sometime before the early 1640s, as it was during this time that he acquired an indenture for Casor. In 1651, Johnson was granted 250 acres for his five indentured servants ­u nder the headright system. Four of them ­were ­Europeans, and the fifth was Black—­a nd Johnson’s son. In 1653, Casor claimed he was being held captive by Johnson for seven years past the period of his indenture. A neighboring planter, Robert Parker, aided his release by buying a contract on Casor. Johnson sued Parker, and in 1655 an appeals court determined that Johnson owned Casor, that “Robert Parker most unjustly keepeth the said Negro from Anthony Johnson his master,” and ultimately that Casor “returne unto the ­service of his said master Anthony Johnson.” 40 It is perhaps the darkest irony that a crucial ­legal basis for racialized chattel slavery came from a case brought by a Black slave ­owner. Johnson and his heirs may have been the wealthiest Blacks in seventeenth-­ century V ­ irginia. John Johnson imported eleven enslaved Africans in 1652, for which he was awarded 550 acres. Two years l­ ater Richard Johnson received one hundred acres for importing two enslaved Africans.41 In the 1656 case of Elizabeth Key, we see that the ­English conceit that nationality and religion o ­ ught to ensure the protection of their liberty could overrule African heritage and color. Key was the d­ aughter of an African slave w ­ oman and ­House of Burgesses member Thomas Key. Around the time of Thomas Key’s death in 1636, Elizabeth was indentured to her godfather, Humphrey Higginson, a member of the Council of State, who then sold her contract to a North­u mberland County justice of the peace, John Mottrom I. Upon Mottrom’s death in 1655, Elizabeth Key sued the executors of his estate for her freedom. The appeal reached the General Assembly, which freed Key on the grounds that her f­ather was ­English and that she was baptized, which both provided assurance that one could not be held as a slave beyond a term of years.42 By 1660, the total colonial population was 75,058, and 3.5 ­percent, or 2,920, ­were of African descent. The following year the General Assembly

86

Th e P o l i c e L a w o f S l av e r y

attempted to drive a racial wedge between ­European indentured servants and Black slaves. As the above cases of John Punch and “Emanuel the Negro” exemplify, it was common for bondmen of all complexions to run away together, just as they did most t­hings together. B ­ ecause the punishment for ­r unning away was the assignment of additional time of indenture, Black slaves ­were unable to fulfill such a punishment. With the “­English ­running away with negroes” act of 1661, the Assembly de­cided that “in case any E ­ nglish servant ­shall run away in com­pany with any negroes who are incapable of makeing satisfaction by addition of time,” that “the ­English so ­r unning away in com­pany with them ­shall serve for the time of the said negroes absence,” in addition to their own time of absence. Effectively, white runaways received a double punishment for fleeing with a Black slave.43 In the province to their north, M ­ aryland’s Assembly passed a similar law in 1663, titled An Act Concerning ­English Servants That Runn Away in Com­pany of Negroes or Other Slaves. To regulate movement and prevent the flight of runaways, ­Virginia borrowed a pass system from Tudor ­England’s vagrancy laws, first created in an act from 1663 that mandated that “all masters of Families be enjoyned and take especiall care that their servants doe not depart from their ­houses on Sundayes or any other dayes without perticular lycense from them.” 44 Likewise in 1663, legislation deemed the informal, private tradition of “hue and cry” was insufficient to the task of preventing and capturing runaway servants, declaring it would become “the charge of the country.” 45 In 1662 the V ­ irginia General Assembly clarified “doubts” about w ­ hether “­children got by any En­g lishman upon a negro ­woman should be slave or ­f ree” by enacting a law “that all c­ hildren borne in this country shal be held bond or f­ree only according to the condition of the ­mother.”  46 In d­ oing so the Assembly reversed the role of parentage in established ­English common law and effectively established a pre­ce­dent that would become law throughout the other colonies. Additionally, the law doubled the punishment for “ffornication,” declaring “if any christian s­ hall committ ffornication with a negro man or ­woman, hee or shee soe offending ­shall pay double the ffines imposed by the former act.” 47 This law would have nullified one of Elizabeth Key’s claims to freedom had it been passed only a few years ­earlier. In 1664 the ­M aryland Assembly passed a similar, more thorough law, An Act Concerning Negroes & Other Slaves, which stated that “all ­Children born of any Negro or other slave ­shall be Slaves as their ffathers w ­ ere for the terme of their lives.” 48 The ­M aryland law, however, went even further and “conclusively established Negro slavery.” 49 It stated that “all Negroes or other slaves already within the Province and all Negroes and other slaves to bee hereafter imported into the Province ­shall serve Durante Vita”—­for life. This component of the law “was enacted prob­ably ­because the original



The Genesis of Race in Colonial ­Virginia

87

basis for life ­service, contractual or non-­contractual was ­u nder question,” and essentially “legalized the de facto slavery which had been recognized in ­M aryland at least since 1639.”50 In the first half of the seventeenth ­century, “the reduction to life servitude of the Negro,” Jonathan Alpert claims, was “an unconscious ­factor.”51 The Spanish and Portuguese had already normalized Black slavery in the Atlantic. The law protected Christians from enslavement, but since Africans ­were not Christian, the only law that applied was contract law. E ­ nglish trading partners in Africa presumed the p­ eople they sold into slavery would be slaves for life, and the status of slave depended upon the initial terms of sale and importation. Black workers who arrived without having already entered into an indenture w ­ ere presumed to be slaves, and b­ ecause Africans did not speak E ­ nglish, they w ­ ere unable to enter into contracts.52 Altogether, ­those who came directly from Africa—­which included nearly all Blacks in the province—­were almost certain to be enslaved for life. A prob­lem was presented when Blacks integrated into colonial life, especially with ­those who converted to Chris­t ian­ity. Prior l­egal protections against slavery w ­ ere losing intelligibility. A new ­legal justification for retaining current slaves and permitting new imports from other colonies was needed. By the end of the 1660s, ­there w ­ ere 2,000 Blacks in ­Virginia, most of them in bondage. The ad hoc laws created through legislation and court rulings w ­ ere already drawing a color line between servants and slaves. ­Because ­these laws referred to the E ­ nglish and other E ­ uropeans as “Christians” and Blacks as “Negroes,” it created “doubts” over “­whether ­children that are slaves by birth, and by the charity and piety of their ­owners made pertakers of the blessed sacrament of baptisme, should be vertue of their baptisme be made ffree.”53 The law had yet to make clear w ­ hether conversion to Chris­ tian­ity would make a Black slave f­ree. In 1667 the General Assembly passed “An act declaring that baptisme of slaves doth not exempt them from bondage” to resolve the m ­ atter, by ensuring that Black slaves would remain in bondage, but also encouraging “the propagation of chris­tian­ity by permitting ­children, though slaves, or t­hose of greater growth if capable to be admitted to that sacrament.”54 A similar law, titled An Act for the Encourageing the Importation of Negroes and Slaves into This Province, was passed by the ­M aryland Assembly in 1671, which stated: “where any Negro or Negroes Slave or Slaves being in Servitude or bondage is are or ­shall become Christian or Christians and . . . ​Receive the Holy Sacrament of Babtizme before or ­a fter his her or their Importation into this Province the same is not nor ­shall or ­ought the same be . . . ​t aken to be or amount unto a manumission or freeing Inlarging or discharging any such . . . ​Negroes Slave or Slaves . . . ​or their Issue . . . ​

88

Th e P o l i c e L a w o f S l av e r y

from . . . ​their Servitude.”55 As Alpert notes, the passage of this law is particularly relevant ­because “­there ­were no cases prior to 1671 [in ­Maryland] in which Negroes ­were freed b­ ecause they had become Christian.”56 Preve nting N e g roe s I n surre c ti on s Despite l­egal efforts to differentiate temporary servitude from chattel slavery on the basis of color, one event in par­tic­u ­lar demonstrated that a racial divide had not yet reliably divided workers to suppress interracial rebellion. Over the course of the seventeenth ­century, small planters, some of them former servants, could not compete against established planters. This division among white planters fueled interracial alliances between small planters and servants, who found a common ­enemy in the large planters and the colonial administrators who favored them. In the 1670s, the governor granted all remaining desirable farmland to planters in his inner circle. Young planters and recently freed servants unsuccessfully demanded the governor force the removal of nearby indigenous populations in order to steal land for their use. E ­ uropeans and Blacks battled side by side for months and ultimately burned down the Jamestown colonial capital. Remembered as Bacon’s Rebellion b­ecause it was initially led by the wealthy planter Nathaniel Bacon, it received financial backing and support from other elites. At the outset, this was hardly a proletarian insurrection. Even though it was funded by elites and initially driven by their concerns, the interracial quality of this rebellion alone threatened a ruling class whose stability depended on a working class weakened by divisions of national origin and color. Moreover, the thrust of the rebellion quickly escaped control by the elites. Despite the aspirations of freemen—­Black and white alike—to be landholders and to own their own servants, they found more common interests with servants and slaves. The latter saw opportunities to rebel with their own interests in mind. The class dynamics among the rebels ­were hardly clear-­cut, but the division between the two sides of the antagonism was. This was what class conflict looked like prior to race being fundamental to the social order. The response of the elites was also clear, as they reacted by more neatly defining the color line, not just in how the state would regulate slavery, but more specifically how it would regulate slaves. During the 1670s, few revolts threatened to reach the scale of Bacon’s Rebellion. Though the Black population remained small, the increase in frequency of rebellions and in the volume of rumors about plots motivated planters and administrators to prioritize their suppression. The first move by the state was to define Black slaves as a threat to security and to certify the use of suppressive vio­lence. In 1680 the General Assembly passed An Act for Preventing Negroes Insurrections, citing the “dangerous consequence” of “the frequent meeting of considerable numbers of negroe slaves u ­ nder pretence of feasts and burialls.”57 In



The Genesis of Race in Colonial ­Virginia

89

this piece of legislation we can find one of the earliest instances of law identifying a latent insurgent tendency among slaves. It would hardly be the last time the state equated Blackness and insurgency. In order to prevent the possibility of insurrection plots, the Assembly sought to prevent gatherings of servants and slaves. Borrowing from a 1663 law regulating servant traffic, the act established a pass system that forbade slaves “to goe or depart from of his masters ground without a certificate from his master, mistris or overseer,” and insisted that “such permission not to be granted but upon perticuler and necessary occasions.” The pass system was to apply to all slaves and to be enforced by all citizens. More directly addressing the threat of rebellion, the law forbade “any negroe or other slave to carry or arme himselfe with any club, staffe, gunn, sword or any other weapon of defence or offence, nor to goe or depart from of his masters ground without a certificate from his master, mistris or overseer, and such permission not to be granted but upon perticuler and necessary occasions.”58 The punishment for e­ither infraction, travel without a pass or possession of a weapon, would be fulfilled by the constable with “twenty lashes on his bare back well layd on, and soe sent home to his said master, mistris or overseer.”59 It further specified thirty lashes of the whip when “any negroe or other slave [who] s­hall presume to lift up his hand in opposition against any christian.” 60 This act extends the right of whites to take the life of “any negroe or other slave [who] ­shall absent himself from his masters ­service and lye hid and lurking in obscure places, comitting injuries to the inhabitants, and s­ hall resist any person or persons that shal by any lawfull authority by imployed to apprehend and take the said negroe, that then in case of such r­ esistance, it shal be lawfull for such person or persons to kill the said negroe or slave soe lying out and resisting.” 61 The timing of the passage of this law tells us that the colonists had a conception of an order that was damaged by rebellion. The act was intended to prevent further “dangerous consequence” through the proactive work of regulating the activity and movement of Blacks. It extended to white citizens the state’s authority in the discretionary use of vio­lence to maintain order. Though the act did not found a special agency, it is an articulation of a police mandate and is directed t­ oward a specific group to fulfill it. The sanction for citizens to use vio­lence at their discretion reiterated a law already ­adopted over a ­decade ­earlier. The ­Virginia General Assembly extended the sovereign right to kill to white citizens when in 1669 they passed An Act about the Casual Killing of Slaves, which states: WHEREAS the only law in force for the punishment of refractory servants resisting their master, mistris or overseer cannot be inflicted upon negroes, nor the obstinacy of many of them by other then violent meanes

90

Th e P o l i c e L a w o f S l av e r y

supprest, Be it enacted and declared by this ­g rand assembly, if any slave resist his master (or other by his masters order correcting him) and by the extremity of the correction should chance to die, that his death ­shall not be accompted ffelony, but the master (or that other person appointed by the master to punish him) be acquit from molestation, since it cannot be presumed that prepensed malice (which alone makes murther ffelony) should induce any man to destroy his owne estate.62 This 1669 law allows for the killing of Blacks who resist being punished, not only ­those who have been captured ­a fter r­ unning away. This legalization of the killing of enslaved Blacks would become crucial in rendering enslaved Black bodies as chattel. Chattel is property that conveys to the ­owner all of its productive output—­including its reproductive product—­ until it is transferred. Moreover, chattel is a form of property that can be destroyed, w ­ hether or not the destruction is for productive purposes. The farmer not only owns the cow, and not just its milk, but also its calves. The  farmer can kill the cow, both to convert its body into beef, but also if the cow is diseased, or for any other reason.63 The law was also pivotal for how the state distributed its sovereignty to private individuals for the purpose of maintaining security against Black slaves. This ­earlier law is also notable for using “slaves” and “negroes” as synonyms, despite the census of 1670 the following year showing only 2,000 ­people classified as the latter.64 In 1687 and 1688, rumors from Westmorland County of conspiracies by “outying slaves” to launch assaults on plantations stoked settlers’ anx­i­eties about slave rebellions. The West­moreland slave plot of 1687 is generally remembered as the first slave rebellion that did not involve any white participants. In April  1691 the General Assembly passed An Act for Suppressing Outlying Slaves to address the “negroes, mulattoes, and other slaves” who “unlawfully absent themselves from their masters and mistresses s­ ervice, and lie hid and lurk in obscure places killing hoggs and committing other injuries to the inhabitants of this dominion.” 65 The act granted any person the right to capture “any negroes, mulattoes or other slaves or slaves lying out,” and extended to them the right to kill. In the event that they “­shall resist, runaway, or refuse to deliver and surrender him or themselves to any person or persons,” then “it s­ hall and may be lawfull for such person and persons to kill and distroy such negroes, mulattoes, and other slave or slaves by gunn or any otherwaise whatsoever.” 66 The 1691 law made clear that the concern with t­hose “lying out” was not only about recently escaped slaves. Rather, the General Assembly was focused on all Blacks who ­were i­ndependent, ­whether by escape or manumission. Up to this point, slave ­owners had mostly unchecked discretion over when and u ­ nder what conditions they would emancipate a servant. This



The Genesis of Race in Colonial ­Virginia

91

law explains that ­because “­g reat incon­ve­n iences may happen to this country by the setting of negroes and mulattoes f­ree,” provision would be made so that “no negro or mulatto be . . . ​set ­free by any person or persons whatsoever, ­u nless such person or persons, their heires, executors or administrators pay for the transportation of such negro or negroes out of the countrey within six moneths a­ fter such setting them ­f ree.” 67 No longer was the primary concern about runaways focused on lost ­labor. Though the law made repeated mention of the killing of livestock, this proved a minor concern next to an increasingly pervasive fear of insurrection. The reference to “outlying slaves” invited connection to the communities of maroons in outlying areas that ­were growing in size and in connections to plantation slaves. When the ­English first invaded the region ­decades e­ arlier, the swamp was largely uninhabited, but over time it became a haven for victims of colonial expansion.68 Initially inhabited by Nanesemond, Tuscarora, and other indigenes, they w ­ ere increasingly joined by fugitive slaves and the occasional escaped ­European servants.69 Though it was not u ­ ntil a few d­ ecades into the eigh­teenth c­ entury that ­people of African descent made up the majority of the inhabitants of the ­Great Dismal Swamp and other maroon communities, the presence of escaped slaves was well known to the colonists. As Bacon’s Rebellion made clear, freemen lacked sufficient opportunity to join the elite in reaping rewards from colonial expansion, and flight to maroon communities offered opportunities not just for self-­sufficiency, but also for self-­determination. The E ­ nglish ­were well acquainted with the readiness of the maroons’ counter­parts in modern-­d ay Mexico, Central Amer­i­ca, and the C ­ aribbean to join with ­others in assaults on their enemies, the Spanish. Some of the earliest ­English victories over the Spanish ­were won with their aid. In the 1570s, the Cimarrons in modern-­d ay Panama aided Sir Francis Drake in his defeat of the Spanish.70 As word spread of slave revolts in the West Indies, often launched or aided by maroon communities, colonists received confirmation of their fears that wherever the E ­ nglish held Blacks in bondage ­t here was a threat of insurrection. The 1691 law is especially notable for being the first law naming a “white” race.71 For all of the seventeenth ­century, settlers ­were clear on what they meant when referring to a “Negro,” but for most of the ­century, the colonists referred to ­ Europeans as “Christians,” frequently differentiating  among them by nationality. Fi­nally in the 1690s, “white” started to creep into the settler vernacular. The act specified that any “­English or other white man or ­woman being f­ ree ­shall intermarry with a negroe, mulatto, or Indian man or w ­ oman bond or ­free ­shall within three months ­after such marriage be banished and removed from this dominion forever, and that the  justices of each respective countie within this dominion make it their

92

Th e P o l i c e L a w o f S l av e r y

perticular care, that this act be put in effectuall execution.” 72 The law further determined that should “any E ­ nglish ­woman being f­ree s­hall have a bastard child by any negro or mulatto,” she was to “pay the sume of fifteen pounds sterling, within one moneth a­ fter such bastard child be born, to the Church wardens of the parish where she s­hall be delivered of such child.” 73 That prevention of insurrection and miscegenation was dealt with in the same piece of legislation is evidence of how much race-­m aking and regulation of slavery ­were intertwined. Race Manag e m e nt i n the Transition to Chat te l Slave ry The ­legal developments in V ­ irginia to this point provided pre­ce­dent, but it was local economic ­factors that provoked the use of ­these laws as the foundation of a system of slavery that would fuel the growth of an entire global economy. Demographic changes from 1670 through the turn of the c­ entury provide one way of seeing a growing colony dealing with simultaneous crises of production and crises of security. Initially the V ­ irginia Com­pany anticipated that ­English workers would fulfill their ­labor needs. Well into the eigh­ teenth ­century, indentured servants provided the bulk of l­abor power in the colonies. The staple crop, tobacco, did not require the extent of slave ­labor that was needed to profitably produce rice and cotton in abundance. Between 1619 and 1680, 4,736 Africans arrived via the transatlantic slave trade in the Chesapeake region, most of them transported by the Royal African Com­ pany. By comparison, between 1654 and 1686, 4,924 ­English indentured servants embarked from just one ­English city, Bristol, to ­Virginia.74 In 1670, the total population of E ­ nglish colonial Amer­i­ca was 111,935, with 35,309 residing in V ­ irginia. Only 6 ­percent of the V ­ irginia population was Black. The colony’s population increased by 23.5  ­ percent over the next d­ecade, but the racial makeup changed l­ittle. In 1680, 3,000 Blacks w ­ ere reported on the ­Virginia census. As Peter Parish observes, “the ­decades on e­ ither side of 1700 mark a crucial turning point between the first long phase of slow and uncertain evolution during the seventeenth ­century and the firm consolidation and rapid expansion of slavery in the eigh­teenth ­century.” 75 Between 1670 and 1700, 9,850 enslaved Africans disembarked in the Chesapeake region, roughly four times the number of all t­hose who arrived before. In 1690, the V ­ irginia census shows that of the 53,046 p­ eople, 18 ­percent, or 9,345 of them, w ­ ere Black. Despite merely dabbling in the use of African slaves for most of the seventeenth ­century, the E ­ nglish proved to be remarkably interested in exploiting the l­abor of Africans for the duration of their natu­ral lives. Before establishing their own colonies in the Atlantic, the E ­ nglish ­were critical of the abuse of African slaves by the Spanish, but as Guasco notes, “Beyond offering the



The Genesis of Race in Colonial ­Virginia

93

occasional barb about Spanish cruelty ­toward slaves in general, the E ­ nglish 76 actually found much to emulate.” The colonists built their “society with slaves” in ways that that show some isomorphic influence from the Atlantic colonies of the Spanish and Portuguese. Eric Williams argues, however, that “the transportation of white servants established a pre­ce­dent for the transportation of Negro slaves. The practice developed and tolerated in the kidnapping of whites laid the foundation for the kidnapping of Negroes.” 77 By the final ­decades of the seventeenth ­century, planters strug­g led to find requisite l­abor, as they competed with colonies north of V ­ irginia and ­M aryland for E ­ nglish servants, the ­English birthrate declined, and working conditions in ­England improved. From 1690 to 1700, the white population of ­Virginia saw negative population growth. By shortening terms of indenture for ­E nglish servants, ­V irginia’s elite hoped to entice more of them. A side effect of this decision was that the contrast between white and Black servitude sharpened just as the Black population was increasing.78 During the last three d­ ecades of the seventeenth ­century, the Black population of ­Virginia increased by 820 ­percent. At the turn of the c­ entury, the proportion of the Black population was five times what it was in 1670. The expansion of indentured servitude was far more than a solution to a l­ abor prob­lem, though it certainly fulfilled that function for a number of d­ ecades. The benefits of white skin w ­ ere not bestowed by an elite who identified with or cared about white workers. It was, however, a method of expanding the colonies and their productive capacity by turning former white servants into small planters. Rebellions throughout the colonies troubled administrators. Despite being a small portion of the population, V ­ irginia lawmakers in the 1680s made Blacks the scapegoats for social disorders wrought by a spate of interracial worker rebellions. As more African slaves ­were entering the colonies, the intended expansion of indentured servitude was to fulfill the function of rebalancing the racial demographics in the colonies. Recent slave revolts in Black-­m ajority colonies in the West Indies taught colonial administrators that a Black majority was a threat to security, so they committed to an ongoing effort to manage the racial demographics of the working class in ­Virginia, effectively renewing the colony’s commitment to indentured servitude as the primary source of ­labor power. Planters and colonial administrators on the mainland feared assault from variously allied forces, including the Spanish, French, indigenes, and their own bondmen. They had experience to know that ­European servants and Black slaves would unite in rebellion, that indigenes and maroons would assault plantations, and that Black slaves would fight for their freedom from the Spanish.79 The transition from production centered on E ­ uropean indentured servitude to African chattel slavery was rapid, though with fits and starts. The

94

Th e P o l i c e L a w o f S l av e r y

momentum was building in the last ­decades of the seventeenth ­century, but was occasionally stalled. The state was concerned with the control of the slave population, both in terms of managing its size and the physical bodies of Blacks, as a ­m atter of security. The sheer number of African slaves was a threat to be managed, ­because the control of their activities might escape containment should their numbers increase ahead of the state’s capacity to control them. When the control of Black slaves proved a challenge, administrators attempted to slow the increase in dependence on their ­labor, and to renew the commitment to white indentured servitude. As Roediger notes, “by 1698 colonial authorities began for economic and security reasons to pursue white indentured l­abor again, seeking to ‘­people the country’ and to patrol the plantations against slave ­resistance.”80 Administrators aimed to expand the use of ­English indentured servants, to lessen the length of indenture, and to emphasize the benefits at the end of their terms. They sought to increase the advantages and the size of the white population to outpace the growing population of Black slaves. By elevating the status of whites in the lower stations and increasing the dependence on the ­labor of bonded Black workers, elites effectively reduced tensions among whites.81 Population management had taken on a distinctly racial quality. Roediger observes that “for masters, slavers, overseers, and traders, the activities of race-­making and of managing constantly overlapped. Managing a colony through fluctuating preferences for white indentured ­labor or for African slaves . . . ​and assembling the ‘proper assortment’ of slaves to accomplish given productive tasks, made ‘race management’ an enduring feature of American life ­after 1700—­a workaday real­ity created and re­created over time.”82 Administrators w ­ ere keener to control the racial mix of the population than the planters. The demand for enslaved African workers was insatiable. By 1709  in V ­ irginia, South Carolina, and M ­ aryland, Africans held for a lifetime of servitude outnumbered ­Europeans held for a term. By 1710, 30 ­percent of the V ­ irginia population was Black. This transition was accelerated when the Royal African Com­pany lost its monopolistic grip on the slave trade and privateers moved in to seize on this lucrative traffic in h ­ uman capital.83 State management of the economy was given over to the market. In the 1710s, the only t­hing that stood in the way of the steady increase of tobacco exports to ­England was military conflict with France.84 ­Until the last d­ ecades of the seventeenth ­century, Blacks remained a small minority of the population in ­Virginia. Over the course of half a ­century, the actions of the legislature, the courts, and cap­i­tal­ists in ­Virginia influenced the way administrators in ­England and the mainland colonies would build an institution that would soon transform the world. The First ­Virginia Charter, which pronounced that settlers would enjoy all the liberties of ­E nglish citizens, effectively made slavery illegal before the colony had a



The Genesis of Race in Colonial ­Virginia

95

population. By the 1640s, the state not only permitted slavery of many kinds—­including chattel slavery—­but it also was invested in administering private slavery and its direct slave holdings. The state was intimately involved in regulating the trade in slaves and providing a l­egal framework for the strategic use of unfree l­abor in agriculture, infrastructure, and industry. By 1680, however, the legislature articulated a police mandate that moved the colony beyond regulating slavery to administering the slaves themselves. Before they built their own slave society, ­Virginia’s colonial administrators w ­ ere unfamiliar with the practical necessities of managing a large slave population. Like other ­English colonies, they looked to Barbados, a larger and more productive E ­ nglish colony where enslaved Africans w ­ ere plentiful by the ­m iddle of the seventeenth ­century, for ­legal and administrative models. The separation by 2,000 miles was not the primary barrier to such an influence, and neither was the laggard l­egal development on the  distant island. Slavery and the status of Blacks in the early ­decades of the British colonies developed ­u nder differing local social and economic conditions.85 ­Legal direction from the crown was inconsistent, with some colonies adopting ­English common law and ­others demonstrating exceptional l­egal pluralism. As Christian Burset argues, “the extent to which each colony received ­English law depended on a p­ olitical decision about what kind of colony policymakers wanted to create.”86 The demographics of the colony, the mandates from proprietors, and the products and productive apparatus led administrators in the Chesapeake colonies down a longer road to a slave society. V ­ irginia lawmakers moved with “cautious, purposeful deliberation” to legalize lifelong slavery, quite opposite from the West Indian colonists.87 As we see in the following chapter, Barbados developed faster than ­Virginia ­because its commodity production was more efficient and profitable and ­because it was quicker to exploit the ­l abor of enslaved Africans, who ­were easy to access by the thousands. It was also a plantation colony devised for the sole purpose of production, whereas the mainland colonies w ­ ere additionally designed for expansion and settlement of the E ­ nglish kingdom.

C hap te r 4

The First Black Slave Society

Two years ­ after settling Jamestown, an expedition from the V ­ irginia Com­pany accidentally wrecked in Bermuda. Then in 1612, it extended its charter to the archipelago, founding ­England’s first colony in the ­Caribbean, named St. George’s. ­These early settlements ­were tiny experiments by comparison with Spain’s Atlantic empire, which by this time had over a quarter million of its native-­born population living in settlements in New Spain. ­England’s most successful endeavor was in Barbados, which soon became a prototype for its West Indian colonies. ­Earlier, Portugal had invaded Barbados en route to Brazil in the first half of the sixteenth ­century, laying claim to the island u ­ ntil 1620. By the time the Portuguese arrived, Spanish slave raiders had already captured, murdered, and scattered the small indigenous population to neighboring islands, leaving the island nearly unpopulated. Five years ­after Portugal abandoned Barbados, an ­English vessel landed and ­England claimed it as its possession. In 1627, a merchant com­pany from London, William Courteen and Associates, initiated colonization.1 Henry Powell captained the William and John, with more than forty men, capturing a small number of Africans from another ship while en route to Barbados, arriving in February 1627. 2 By 1629, the com­pany spent £10,000 establishing the infrastructure for export-­oriented commodity production.3 Bonded workers from E ­ ngland, Ireland, France, and Africa performed the l­abor. For the first five years, tobacco was their main product. B ­ ecause of its low quality relative to V ­ irginia’s and falling prices in London due to overproduction, Barbadian planters transitioned to cotton and indigo production. By 1637, more land was used for ­these crops, and exports surpassed tobacco.4 From 1641 to 1642, cotton and indigo prices plummeted in London.5 The next year marked the first phase of experimentation in sugar cultivation, also relying on bonded ­labor.6 Spain and Portugal had already dominated the sugar trade, and Barbadian planters counted on ­these competitors and military adversaries for tutelage in growing and pro­cessing sugar. Given their ­limited successes with tobacco, cotton, and indigo, the immaturity of the E ­ nglish colonies, and a market crowded by competitors, t­here 96



The First Black Slave Society

97

was ­little reason to predict that Barbados would soon dominate the sugar trade and serve as a prototype for the rest of the British West Indies. A handful of pioneering sugar planters like James Drax and James Holdip propelled the industry, which would remain concentrated in the hands of a few ­owners of large plantations. By the end of the 1670s, the large sugar plantations ­were responsible for most of Barbados’s exports. This “sugar revolution” was fueled by 90 ­percent of the island’s l­abor force, while 80 ­percent of the arable land was committed to growing the crop. About 90 ­percent of the export earnings of the Barbados colony came from sugar. The extensive use of ­English servants in Barbados led to an effort in ­England to abolish so-­called “white slavery.” It was not the bondage of white-­ skinned p­ eople, generally, that offended the sentiments of proponents, but rather the offense to a nascent ­English identity grounded in part in beliefs that all citizens w ­ ere entitled to protections against slavery.7 Around the same time, the E ­ nglish grew increasingly leery of enslaving their colonial subjects shipped from Ireland, as their tendency t­oward rebellion threatened not only security on the island, but also the coalescence of a novel racial identity grounded in skin color. Despite their reservations, the dependence on Irish servants persisted, and efforts to limit their capacity for rebellion increased. By the end of the 1650s, Irish servants had to carry a pass while away from their place of employment, and Irish freemen and ­women had to carry proof of housing and employment.8 The decreasing reliance on white servants could not have happened without the creation of a racialized population deemed fit for enslavement. In 1630 Black slaves w ­ ere an “insignificant minority,” with less than thirty servants for ­every slave.9 In 1636 the ­English governor of Barbados, Henry Hawley, along with the colonial council, passed a joint resolution that declared all Blacks and indigenous servants would be held as slaves for the duration of their lives, provided they had not entered into a term of indenture prior to arriving in the colony.10 The enslavers did not require such a law to create a system of slavery, as one already existed in the region. As Jerome Handler explains, early slave laws in Barbados “did not create slavery, but rather they codified and sometimes clarified a status that already existed in custom.”11 Anglo-­Barbadian ideas about slavery “­were derived from an Iberian ideology of African enslavement that was widespread in the Euro-­Atlantic world,” and so “slavery was connected to phenotypic characteristics (‘race’) from its very beginning on the island.”12 In 1640 Barbados had nearly as many ­English settlers as all of ­Virginia, ­M aryland, and New ­England combined, as well as 800 African slaves, twice the total on the mainland. The proportion of settlers to slaves shifted to parity as the colony expanded. The colony’s successes in maintaining security and growing its economy hinged on an increasing reliance on enslaved

98

Th e P o l i c e L a w o f S l av e r y

African workers. Indeed, if it w ­ ere not for slave l­abor, Barbados may not have produced enough wealth for the crown to continue its investments in the island.13 In the late 1640s, Barbados became the first E ­ nglish colony in the Amer­i­cas to employ Black slave ­labor on a large scale.14 The ratio of Blacks to whites shifted rapidly. Between 1645 and 1665, the Black population doubled and the white servant population shrank.15 By the mid-1660s, the population of the colony is estimated at 46,000, of whom about 25,000 ­were slaves and 5,500 ­were servants.16 In comparison, t­here ­were 2,000 Blacks in V ­ irginia in 1670, and it was not ­u ntil 1720 that ­Virginia had a slave population to match the Barbados of 1666. Land and slaves ­were hoarded by large planters. In 1679–1680, only 7 ­percent of all property holders owned 53 ­percent of the land and 54 ­percent of the slaves.17 ­Those slaves produced 88 ­percent of all exports and made Barbados the richest colony in E ­ nglish 18 Amer ­i­ca. By the 1680s slaves made up 95 ­percent of the l­abor force.19 By the end of the ­century, the annual imports of African slaves had increased from roughly 2,000 to 3,000.20 As in other E ­ nglish colonies, the transition to Black slavery started in manual occupations, but eventually happened in the skilled trades. From 1650 to 1670, the shift to Black slavery mainly occurred in unskilled field work and other manual l­abor.21 In the 1670s, Black slaves replaced servants in skilled plantation roles and became the majority of the population on the island. Nowhere ­else in ­English colonial Amer­i­ca ­were Blacks a majority, nor “­were Africans considered elsewhere the primary sustainable source of ­labour in the creation of imperial wealth.”22 By the 1690s, the remaining white servants w ­ ere mostly employed as overseers. As late as 1676, skilled crafts ­were explic­itly off limits to Blacks, but by the last ­decade of the c­ entury, enslaved Blacks monopolized carpentry, masonry, sugar boiling, and bricklaying.23 The growth of slavery in Barbados and the ­English dominance of the sugar market ­were in a feedback loop. Two triangle trades emerged around the trafficking of sugar and African slaves. In one, “finished goods w ­ ere sold to Africa, African slaves to the Amer­i­c as, and American tropical commodities (especially sugar) to the ­mother country and her importing neighbors.”24 In the other, New ­England exported rum to Africa, “whence slaves to the West Indies, whence molasses back to New ­England (with which to make rum).”25 The entire structure of ­t hese networks required a large-­scale trade in enslaved ­humans and cheap sugar, which could only be produced competitively with slave ­labor. Sugar and slavery together created the first industrial cap­i­t al­ist form of commodity production. Though cane is grown in the field and consumed as a food item, its production as a mass commodity requires highly divided ­labor and technical mastery. As Sidney Mintz observes,



The First Black Slave Society

99

“ just as factory and field are wedded in sugar making, brute field ­labor and skilled artisanal knowledge are both necessary.” 26 The production of sugar alone does not encompass the full extent to which sugar and slavery facilitated the development of a cap­i­tal­ist mode of production. By the mid-­nineteenth ­century, the triangle trades effectively undermined the dominance of mercantilism, and sugar literally fueled the ­English industrial working class, thereby becoming “the first mass-­produced exotic necessity of a proletarian working class.”27 In 1731, the wealth held in Barbados was estimated at £5.5 million, with roughly £2 million held in land and a nearly equivalent amount attributed to the value of the 65,000 Africans held in bondage.28 ­These slaves ­were responsible for making Barbados the most productive E ­ nglish colony, both in terms of the total value of exports and in terms of export value per capita. Comparing the production of the ­English colonies is troubled by location-­specific episodic disruptions of production, like caterpillar infestations of 1663 and 1664, and wars with the Dutch and the French in 1690 and 1691.29 Notwithstanding, in the mid-1660s, V ­ irginia had about three-­ quarters the population of Barbados, but only produced roughly half the value of exports from Barbados. 30 As we see elsewhere in the E ­ nglish colonies, once slavery was a fundamental component of the economy, the threat of insurrection became a focal concern of the state and its citizens. Rebellion was not exclusive to enslaved Blacks, but the threat of slave revolts influenced the foundation of the Barbadian state. Almost immediately ­after African servants w ­ ere declared slaves for life in 1636, the planters sought “to create an elaborate military system buttressed by ­legal provisions,” which ­were eventually consolidated into a comprehensive slave code in 1661.31 “The core consideration upon which the entire social formation was based,” observes Hilary McD. Beckles, was “importing, exploiting, managing and suppressing the majority African population.” The l­egal system and p­ olitical administration ­were “­shaped by and infused with the needs of the slave economy.”32 De fe nding agai nst “Muti nye s or Re b e ll i on” Before colonizing the so-­called New World, the ­English ­were aware that where ­there is slavery, t­here is a ubiquitous threat of rebellion. The E ­ nglish had recent experiences with being enslaved by Scots, so-­called Moors, and Turks, which served as a foil against their early ideas about liberty. Already moving ­toward a modern, secular view that rejected providence as a determinant of a person’s life, the ­English could only permit the offense of servitude as a temporary penalty. They saw the desire to be f­ree as natu­ral and slavery

100

Th e P o l i c e L a w o f S l av e r y

as the greatest offense to liberty, which could only be earned through heinous misdeeds, rarely applied, and nonetheless regrettable. Further, the revolt against enslavement was a natu­ral impulse that should be anticipated. Prior to settling their own colonies in the Atlantic, E ­ nglish expeditions in New Spain confirmed their expectations of rebellion among the enslaved applied as well to Africans, as the crown’s privateers gained military advantage over the Spanish by partnering with rebel slaves and cimarrones. The cimarrones ­were residents in durable communities, originally founded and peopled by former slaves who escaped their Spanish masters, which persisted for generations. Writing in 1572, Sir Francis Drake described them in passing as “a black P ­ eople, which about eighty years past, fled from the Spaniards their Masters, by reason of their cruelty, and are since growns to a Nation, u ­ nder two Kings of their own; the one inhabiteth to the West, th’ other to the East.”33 Succeeding Drake in the crown’s economic and military endeavors in the Atlantic was Richard Hakluyt, who originally sought to establish colonies in South Amer­i­ca and the C ­ aribbean, with cimarrones and “condemned ­English men and ­women” as the primary settlers. The crown rejected the plan, but it set in motion the first attempts of the E ­ nglish to ­settle the New World, when in 1585 Sir Walter Raleigh had established the Roanoke Colony. ­T hese leaders of ­English ventures in the Atlantic had direct experiences with Africans and their descendants that confirmed the latter had the capacity to break the bonds of slavery, build their own communities, and do b­ attle with conquerors, settlers, and enslavers. The Barbadian planters soon recognized the threat that runaway slaves posed, particularly once they found cover in the woods and caves. In 1657 Richard Ligon, a plantation o ­ wner and enslaver in Barbados who invested in the sugar boom to rebuild his capital a­fter losing his fortune in the ­English Civil War, wrote that “the runaway Negres” would often hide in caves that “are very frequent on the Island,” “living upon pillage for many months together,” and would only be found with the aid of “Liam Hounds” to guide their pursuers. 34 The planters and colonial administrators knew the outskirts of the settlements afforded ­these maroons opportunities to plot insurrections. In 1655 the Barbados Council acknowledged ­t hese “Negroes out in rebellion” w ­ ere responsible for “several murders and enormities.”35 Two years ­later, upon receiving a complaint “that divers rebellious and run away Negroes lie lurking in woods and secret places . . . ​committing many vio­lences and attempting to assassinate p­ eople to their g­ reat terror,” the legislature requested that the governor “issue commissions for a general hunting of . . . ​t he ­g reat number of Negroes that are out in rebellion committing murders, robberies, and divers other mischiefs.”36 As the island’s population increased and the settlement expanded, opportunities to find such cover became scant. Nonetheless, the threat of rebellion was ubiquitous and the



The First Black Slave Society

101

colonists ­were frequently alerted to insurrection plots, on occasion too late to stop them. As Jerome Handler argues, the swallowing up of the hinterlands by settlers and planters and the rising threat of rebellion w ­ ere causally related. Once t­here ­were few places left to hide, revolt was a more promising option for r­ esistance than flight. 37 Before Africans w ­ ere numerous enough to pre­sent a significant threat, ­European servants had already demonstrated the risk faced by the ruling elite when relying on extensive exploitation of bonded workers. The primary l­abor source in the first d­ ecades of E ­ nglish colonization of Barbados was supplied by E ­ uropean servants, with ­E nglish subjects from Ireland initially preferred. Especially a­ fter they planned revolts in 1633–1634, Irish servants ­were “defined as non-­members of the white community,” ­were “believed to be as dangerous as the Africans,” and “­were targeted for military surveillance and policed as pos­si­ble traitors.”38 Thousands of servants in Barbados w ­ ere, a­ fter all, p­ olitical prisoners sent from Ireland on o ­ rders from Oliver ­Cromwell. Ligon insisted that slaves ­were “kept and preserv’d with greater care than the servants, who . . . ​h ave the worser lives, for they are put to very hard l­abour, ill lodging, and their dyet very slight.”39 In other passages, Ligon gives reason for us to believe he exaggerated t­hese differences, but this ill treatment, Ligon surmised, was the source of rebellion, as “some cruel Masters . . . ​provoke their Servants,” who ­were prone to “ joyn together to revenge themselves upon them.” 40 Shortly a­ fter arriving on the island in 1647, Ligon witnessed a narrowly thwarted insurrection. He explained that the servants’ sufferings being grown to a ­g reat height, and their daily complainings to one another (of the intolerable burdens they ­labour’d ­u nder) being spread throughout the Island; at the last, some amongst them, whose spirits ­were not able to endure such slavery, resolved to break through it, or dye in the act; and so conspired with some ­others of their acquaintance, whose sufferings ­were equal, if not above theirs; and their spirits no way inferiour, resolved to draw as many of the discontented party into this plot, as possibly they could; and ­those of this perswasion, ­were the greatest numbers of Servants in the Island. So that a day was appointed to fall upon their Masters, and cut all their throats, and by that means, to make themselves only freemen, but Masters of the Island.41 The plot was ­stopped when one servant informed on the rest, and ­eighteen servants central to the conspiracy ­were executed. Enslavers already feared their E ­ uropean servants, and the threat of insurrection increased along with the number of African slaves they imported.42 The threat was not merely through the increasing number of bonded workers.

102

Th e P o l i c e L a w o f S l av e r y

Servants and slaves showed a propensity to rebel together. Handler explains that “The proximity of indentured servants and slaves, the similarity of the harsh treatment both groups experienced, and their shared mistrust and animosity ­toward their masters prob­ably resulted in a mutual influencing of the forms of ­resistance that both groups took. The hostility of Irish servants ­toward their masters was also manifest in the apparent involvement of some in ­later slave plots or alleged plots, as well as being reflected in vari­ous precautions that planters took against the possibility of revolt, both by servants and slaves.” 43 ­Those precautions w ­ ere built into the very structures of their dwellings. Ligon reports that “their h ­ ouses . . . ​a re built in manner of Fortifications, and have Lines, Bulwarks, and Bastions to defend themselves, in case  ­there should be any uproar or commotion in the Island, e­ ither by the Christian servants, or Negro slaves.” 44 Drinking w ­ ater also served as an easily accessed weapon “whilst they are besieged,” which they could “throw down upon the naked bodies of the Negroes, scalding hot; which is as good a defence against their underminings, as any other weapons.” 45 “Eternal vigilance and vio­lence reprisals,” as Beckles puts it, w ­ ere applied to both white servants and Black slaves who rebelled and pursued freedom.46 Over the course of the latter half of the seventeenth ­century, Barbados gradually abandoned white servitude in f­avor of Black slavery. As this shift took place, discussions of the threat of rebellion worked alongside changes in slave law and demographics to racialize Blacks and to ascribe an insurrectionary tendency to them. Black rebellion was considered in two lights. First, b­ ecause slaves w ­ ere expected to do nothing but work, rebels w ­ ere derelict in their duty to their ­owners, and thus a threat to the efficiency and profitability of their enterprises. At the same time, rebellion was a very real threat to the security of the colony and the stability of its economy, not merely promising capital losses, but potentially risking the destruction of ­English colonial rule. While servants and slaves alike ­were controlled and corrected with brutal vio­lence, the latter knew ­there was no end in sight except through rebellion. Their enslavers had nothing to offer to them in exchange for their obedience. They had no contracts, no anticipated dates of release, and knew that their progeny would be resigned to lives no better than theirs. The Bette r O rde ri ng and G ove rning of Neg roe s “A commercial law of slavery,” Nicholson observes, “was not so crucial or immediately necessary as the police law.” 47 Slave law became as preoccupied with the prevention of “mutinyes or rebellion” as it was with regulating the trade in and treatment of ­human property. Their enslavers devised an elaborate system of slave law that first and foremost prescribed “an early



The First Black Slave Society

103

warning system against slave revolt.” 48 The Barbados ­House of Assembly began passing laws in 1641, 204 of them in its first two d­ ecades. Most of this early legislation is now only known by title, with other content lost to history. The titles, however, reveal eight addressed “servants,” one “servants and slaves,” two “servants and Negroes,” and seven only “Negroes.” It is reasonable to assume that other laws addressed bonded l­abor in some re­spects. Ahead of V ­ irginia by twenty-­five years, Barbadian lawmakers ­were using “Negro” and “slave” interchangeably as early as 1644. As Jerome Handler finds, “colonial authorities assumed that persons identified as ‘Negro,’ including ­those of mixed racial ancestry, w ­ ere enslaved.” 49 Hilary Beckles explains the rationale and outcome of this legislation: “Laws ­were formulated, armies established and prisons built in order to brutalize Africans into social submission. Extreme vio­lence against Africans was justified by enslavers as a self-­defence mechanism. Atrocities w ­ ere considered inevitable and ­were endemic. As wealth generation spiraled to new heights, the degradation of Africans reached an unpre­ce­dented social low.”50 This complex of justification and police strategy was consolidated in a single comprehensive slave code passed in 1661. In September of that year the Assembly convened ­under the chairmanship of Humphrey Walrond, at the time a major enslaver and acting governor of Barbados, passing the most impor­t ant slave code in the ­English colonies, An Act for the Better Ordering and Governing of Negros. The act itself reveals a belief on the part of its authors that ­English legislation and common law provided insufficient guidance in how to regulate the conduct of enslaved ­people, claiming t­here is “no tract to guide us where to walk nor any rule sett us how to govern such slaves.” Nicholson comments that “­t here was no time for a common law of slavery to develop, at least as far as policing the slaves,” and so the legislature “was forced to act to create a law of slavery.”51 The law codified a social order where the master’s role was to direct and punish slaves, whose only role was to follow ­orders. Richard S. Dunn explains the 1661 law “legitimized a state of war between blacks and whites,” and it “sanctioned rigid segregation, and institutionalized an early warning system against slave revolt.”52 Throughout the text the lawmakers provide a clear view of their conception of order and what it meant for them to govern ­those they enslaved, who ­were deemed “a dangerous kinde of ­people.” This law, Dunn explains, “was in large part a policing m ­ easure, designed to control the restive black population.”53 Sally Hadden posits that “the failures of privately paid slave-­catchers in the 1650s may have influenced the 1661 slave code,” which “shifted the job of slave control firmly onto the shoulders of all whites.”54 Fundamental to this policing ­measure was the constant regulation and surveillance of Blacks, the extension of sovereignty to white citizens, and the suspension of standard l­egal procedures. Dunn observes that t­ hese laws “disciplined

104

Th e P o l i c e L a w o f S l av e r y

and regimented the masters as well as the slaves” and “required each slave ­owner to act as a policemen, to suppress in humanitarian instincts, and to deal with his Negroes lash in hand.”55 Overseers w ­ ere expected to keep enslaved workers busy at work all days except Sundays. On Sundays, they ­were required to stay on the plantation of their enslavers or other­w ise possess a ticket authorizing their absence. The law directed any white person who discovered a Black person without such a ticket to administer a “moderate whipping.” Blacks could not possess weapons or “hold any counsill or conspiracy for raiseing Mutinyes or rebellion in the Island.” Overseers ­were expected to engage in routine surveillance of slave dwellings to break up meetings and search for weapons. Slave o ­ wners ­were authorized to use deadly force, ­whether to capture fugitives, disperse gatherings, or respond to insubordination. As Dunn puts it, the Assembly considered “rebellion or conspiracy against the white ruling order” as “the most heinous Negro crime.”56 The act justified the imposition of martial law in response to such crimes b­ ecause, “being brutish slaves,” they “deserve not for the basenesse of their condition to be tryed by the legall tryall of twelve Men of their appeares or neighborhood which truely neither can be rightly done as the Subjects of ­England.” In the event of a rumored insurrection plot or outbreak of rebellion, militia leaders ­were “to meet in counsill and proceede by Marshall Lawe against the Actors Contrivers raisers freementers and Consealers of such Mutiny or rebellion and them punish by death or other paine as their crimes s­hall deserve.” As Nicholson observes, “martial law princi­ples w ­ ere thus an impor­t ant model for the law of slavery.”57 For the island’s ruling elite, the threat of rebellion was ubiquitous, and therefore they expected vigilant, proactive policing by the militia. At first, prominent planters led militia regiments composed of all white males of able body, who “held greatest responsibility for policing the Barbadian slave community.”58 By the ­m iddle of the c­ entury, ­there w ­ ere four times as many Blacks as whites, which led planters to arm ­European indentured servants. The ­English and Scottish servants ­were keen to oblige, but the planters w ­ ere reluctant to arm the Irish. In time the militia formed “an increasingly power­ ful alliance” with the imperial troops and navy to keep slaves in line.59 The primary purpose for the presence of the imperial military forces was to fend off foreign invaders. The ongoing presence of the militia, on the other hand, was to serve as a preventive form of policing. Sally Hadden shows that “­whether at assemblies, markets, funerals, or festivals, the militia patrol was pre­sent.” 60 Along with the pass system, the strict regulation of trade sought to exert control over slaves when they ­were not actively at work. In 1682, in an attempt to discourage slaves from stealing from their masters, whites ­were forbidden from trading with Blacks.



The First Black Slave Society

105

In 1657 Richard Ligon wrote: “It has been accounted a strange t­hing, that the Negroes, being more than double the numbers of the Christians that are t­here, and they accounted a bloody ­people, where they think they have power or advantages; and the more bloody, by how much they are more fearful than ­others: that ­these should not commit some horrid massacre upon the Christians, thereby to enfranchise themselves, and become Masters of the Island.” 61 Effective policing in the seventeenth ­century, as Beckles explains, “placed the enslaved in a self-­perceived position of military weakness.62” Ligon describes Blacks as being “held in such awe and slavery, as they are fearful to appear in any daring act; and seeing the mustering of our men, and hearing their Gun-­shot, (than which nothing is more terrible to them) their spirits are subjugated to so low a condition, as they dare not look up to any bold attempts.” 63 We also see that in addition to the “low police” of the patrols, the “high police” of the state’s administration of the slave trade also contributed to the weakening of slave r­esistance. Ligon wrote of a particularly useful strategy “which stops all designs” of slave rebellion, “They are fetch’d from several parts of Africa, who speak several languages, and by that means, one of them understands not another: For some of them are fetch’d from Guinny and Binny, some from Cutchew, some from Angola, and some from the River of Gambia.” 64 Despite early successes, the continued effectiveness of patrols was in doubt, as t­ hose who ­were expected to serve dwindled, and just as the population of enslaved Africans exploded. In 1645 ­t here ­were 18,300 “whites fit to bear arms” and 5,680 Blacks, while in 1667 t­ here ­were 8,300 and 82,023, respectively.65 In 1666, William Willoughby, the commissioner for plantations, new member of the H ­ ouse of Lords, and soon to be governor of Barbados, wrote to King Charles II that the exodus of poor whites had made the military state of Barbados vulnerable to attack by rival empires and to the “insurrection of slaves.” 66 In 1675 a conspiracy to take advantage of the opportunity presented when troops temporarily left Barbados to neighboring ­English colonies was barely thwarted.67 Governor of Barbados Jonathan Atkins wrote to the Lords of Trade that successful prevention of the insurrection “interrupted all other public affairs.” 68 In 1686 the lieutenant governor ordered “the Patrolls to r­ide more frequently and diligently” to break up all gatherings of Blacks.69 A joint plot between enslaved Blacks and Irish servants was narrowly thwarted by aggressive policing. In 1688 the Assembly passed a new, comprehensive slave code, An Act for the Governing of Negroes, to replace the 1661 law. The new act begins by justifying slavery on the basis of necessity: “the Plantations and Estates of this Island cannot be fully managed, and brought to Use, without the

106

Th e P o l i c e L a w o f S l av e r y

­ abour and S­ ervice of a g­ reat Number of Negroes and other slaves.” 70 The L law also exemplifies an early development of Anglo-­A merican racial ideology, referring to the “Barbarous, Wild, and Savage Natures” of so-­called “Negroes,” and citing the “Disorder, Rapines and Inhumanities to which they are naturally prone and inclined.” 71 The new law further specified the terms of the pass system and required all white men to detain and whip all Blacks traveling without such papers. Failure to participate in the enforcement of the pass laws resulted in steep fines. Beckles comments that “in this sense, the entire white community functioned ­u nder law as a collective police force.” 72 Killing a “Negro or other Slave” was lawful, u ­ nless the killing was a result of “Wantonness, or only of Bloody-­m indedness, or Cruel Intention.” 73 ­Those who did so had to pay a fine, but only if they had the means, since “any poor small Free-­holder or other Person . . . ​­shall not be accountable for it.” 74 From this point ­u ntil 1803, it was lawful for a white person to kill an African slave.75 On the other hand, vio­lence on the part of “any Negro or Slave whatsoever” against “any Christian, by Striking or the like,” was punished harshly.76 If a Black person assaulted a white person a second time, he was to be “severely whipped, his Nose slit, and be burned in some part of his Face with a hot Iron.” 77 The 1688 slave code addressed marronage at length, prescribing police methods to root out “divers Negroes and other Slaves” who “have been long since run away into Woods and other Fastnesses of this Island, ­doing continually much Mischief.” 78 Upon “Notice of the Residency or Hiding-­place of any Run-­away Negroes, or other Fugitive Slaves,” magistrates, constables, and militia captains w ­ ere “to raise and arm any number of Men, not exceeding Twenty, to apprehend and take them, e­ ither alive or dead.” 79 The law authorized enticing remuneration for participants. They ­were paid fifty shillings for each maroon killed. ­Were they able to return them to their masters, they w ­ ere paid fifty shillings for t­ hose who had been absent for more than six months and five pounds for ­those who ran away more than a year prior. Between 1696 and 1702, 2,000 ­English soldiers arrived in Barbados for the exclusive purpose of aiding the militia in policing slaves. From the time of their arrival through the remainder of the eigh­teenth c­ entury, ­t here was but one reported rebellion.80 At this point, Beckles asserts, the “Barbados enslavers comprised the most heavi­ly armed and overtly militarized community in colonial Amer­i­ca. They had established not only the most sophisticated ­legal system in the world to deal with African insubordination but had also built the most advanced military complex for civil domination hitherto created in a colony. ­T hese military ­measures meant that the plantation system was developed as a war zone.”81 The fulfillment of the police



The First Black Slave Society

107

mandate by military means in the earliest incarnations of the modern state, capitalism, and police helps establish the utility of conceptualizing ­these forms as comprising a police state. The 1682 prohibitions on trade ­were not complete in practice. A robust market for produce and livestock continued, where enslaved Blacks sold the surpluses from their small gardens. In 1694 efforts to completely remove the Blacks from the urban economy w ­ ere made in the Assembly. They ultimately failed ­because other assemblymen ­were concerned that passage would further intensify conflict with the enslaved.82 In 1708 renewed attempts to completely end huckstering in both the planter-­controlled and i­ndependent markets linked huckstering and criminality in the letter of the law, codifying long-­held presumptions by planters and lawmakers. Few exceptions ­were made, but when Blacks ­were permitted to sell goods at the market, they ­were to wear shackles on their necks or legs. This law was amended and strengthened in 1733 and 1749. Between 1702 and 1816, ­there w ­ ere no recorded conspiracies or rebellions, an effect of the intensive policing of Blacks on the island. During this time, rebellion took the form of marronage. Its effects ­were felt in aggregate, as flight was largely an individualized act of r­ esistance.83 As the ­century came to a close, colonial administrators w ­ ere concerned that planters ­were taking this condition for granted. By the 1790s, administrators complained that planters w ­ ere not cruel enough to their enslaved workers to keep them sufficiently docile. Open rebellion was no longer their concern. Rather, they saw their increased private economic activity in the markets, collective bargaining for more and better food and clothing, and time spent away from the plantations as evidence of lax control. In an 1805 report to London, Barbados Governor Seaforth commented “that nothing can be more mild and humane than the general conduct of Masters in this island is ­towards the slaves.”84 In addressing the Barbados legislature and planter class, however, he conveyed impatience with their complacency in the face of “disorder.”85 They responded by allocating funds to build a new prison and increasing the policing of petty offenses and unauthorized time spent off plantations. In 1715 Blacks outnumbered whites 2.4 to 1. A ­century ­later, the ratio had doubled.86 While the mainland rarely saw such proportions, in Jamaica it was 11:1 and in Antigua, 18:1. By this point, ­there ­were 581 inhabitants per square mile in Barbados, compared with seventy-­five in Jamaica. Hilary Beckles opines, “the high proportion of whites as well as the greater population density in Barbados contributed to more effective monitoring and military suppression of the enslaved population.”87 ­These differences did not stand in the way of Barbados serving as a model for other E ­ nglish colonies in the West Indies.

108

Th e P o l i c e L a w o f S l av e r y

“Both a Base and a P rototy pe” 8 8 As with growing and pro­cessing sugarcane, the Spanish and Portuguese came before ­England in policing their slaves. As Sally Hadden remarks, “Barbadian colonists did not invent a slave code or patrollers in a vacuum. They modeled their slavery legislation upon New World laws introduced by Spanish and Portuguese colonists, who had the longest and most extensive experience in recapturing slave runaways in the region.” 89 The first slave-­catchers in the Atlantic could be found in the Spanish plantation colonies. In the 1530s the Spanish hermandad, a volunteer militia, was charged with capturing fugitive slaves in Hispaniola. Within a d­ ecade, specialized slave patrols ­were founded elsewhere in the ­Caribbean and South Amer­i­c a. The ­E nglish in Barbados ­were aware of ­these Spanish and Portuguese methods and took a few cues from them. ­There w ­ ere crucial divergences, however. The Spanish and Portuguese patrols focused almost entirely on capturing fugitives, whereas the ­English ­were chiefly concerned with preventing insurrection and breaking up maroon communities. Initially the ­English preferred private “jumpers” to hunt escaped indentured servants, and came increasingly to rely on the militia as enslaved Africans replaced them. ­English influences on policing and the police law of slavery ­were more power­ful than t­hose from their New World counter­parts. The slave pass system, the branding of runaways, the mustering of posses and militias to respond to runaways and r­esistance, and the return of runaways by transferring them from one constable to the next, each paid a fee, all w ­ ere borrowed from early experiments with the regulation of vagabondage in Tudor ­England.90 During the same era, however, slavery had been abolished in E ­ ngland, and so, as Eltis finds, the enslavement of Africans happened in the context of a “cultural rejection of the idea of enslaving one’s own kind.” 91 The belief among the E ­ nglish that even the lowliest E ­ nglish subject should not be enslaved led them to search for alternatives. As the 1688 slave code made clear, the reliance on African slaves was a m ­ atter of necessity for the economy the colonists built. By that time, they had already established a racialized slave society. In the first years of colonization, Barbados lawmakers established a separate system of laws for Blacks and whites, slaves and servants. As Beckles explains, “freedom was ‘for whites only’ and slavery was attached to African identity.” 92 The lowliest white person was socially and legally privileged above all non-­whites. ­These ­legal determinations developed alongside a racial ideology that in turn provided a rationale for the laws. “Black skin was associated directly with slave status and social inferiority,” and a unique constitution was attributed to Blacks, who ­were believed to harbor a host of



The First Black Slave Society

109

nonhuman and evil qualities.93 Race developed ­earlier in Barbados than elsewhere in the ­ English colonies. The white supremacy that was yet unnamed but nonetheless fundamental to slave law in Barbados took nearly a ­century to root itself in the common sense of whites on the mainland. Even as a slave society was emerging in Barbados, t­here was no consensus among the E ­ nglish as to their views of Africans, and certainly no consistency in their colonial ­legal artifice. Beckles makes this clear when discussing the ideological core of Barbadian slave law through comparison with Rhode Island, where in 1652 legislators “sought to define the society as a place of coexistence of ‘black mankind’ and ‘white mankind’ ” in a law that stated that though “­t here is a common course practiced among En­g lishmen to buy negers, to that end they have them for s­ervice or slaves ‘forever,’ for the preventing of such practices among us, let it be ordered that no black mankind, or white being forced by covenant bond, or other­w ise, to serve any man or his assigns longer than ten years.” 94 In Barbados, planters w ­ ere warned against wanton cruelty t­ oward their slaves ­because regular abuse could encourage rebellion. In the Spanish colonies, their slave laws, the Siete Patridas, provided more elaborate provisions establishing rights for the enslaved and responsibilities for their ­owners. Spanish colonizers granted their slaves “some freedoms, access to ­f amily and religious life, and rights to own and trade property.” 95 In Barbados, “they could be bought, sold, mortgaged, rented, leased, murdered, raped, beaten, imprisoned and dismembered—­a ll within the l­egal property rights of the owner-­i nvestor.” 96 It was this image of slavery, not its Iberian form, that became the blueprint for slavery in colonial Amer­i­ca. As Beckles notes, “African slavery was not thought of as the dominant moral, ­political, economic and cultural basis of [Spanish colonial] society.” 97 Most of their patrols ­were composed of indigenous ­people, ­free Blacks, enslaved Africans, or some combination thereof, usually supervised by a few ­European colonists. Given the race relations that emerged in Anglo-­ American colonies, it might seem strange that colonists elsewhere would entrust non-­whites to police other non-­whites. In New Spain and Brazil, a tiered racial caste system was forming that functioned rather differently from the binary race relations found in Anglo-­A merica. This allowed non-­ whites to be relied upon for the management and regulation of non-­whites in lower tiers of the social strata. Further, b­ ecause conceptions of race w ­ ere in their infancy, the idea of “policing their own” would not have had any special significance for the ­Europeans, the Africans, or the indigenes. Early in Jamaica, i­ndependent maroon communities would occasionally help the planters track down runaway slaves.98 As we see in chapter 6, Carolinians relied on indigenous slave hunters and allied indigenous nations for support during insurrections. With the benefit of hindsight, we can see that in

110

Th e P o l i c e L a w o f S l av e r y

Anglo-­A merica, ­these ­were unusual exceptions to the rule, where the ­English expected that only whites would engage in the policing of slaves. While the E ­ nglish traded in the same products and h ­ umans as their rivals in the Atlantic, they had developed a unique plantation colony in Barbados that would come to serve as a prototype for their colonies in Amer­i­ca. By the ­m iddle of the seventeenth ­century, Barbados was “the most fully cap­i­t al ­ist society of the Atlantic world.” 99 Though the E ­ nglish sugar plantations ­were initially modeled ­a fter t­ hose in Spanish and Portuguese colonies, the latter could not compete with production per capita. The Barbados sugar production model changed the techniques of their initial tutors and patterned the development of ­English West Indian agriculture for the next 300  years.100 In addition to improving upon techniques in the cultivation and pro­cessing of sugar, the Barbadians optimized production through the more effective exploitation of l­abor. Barbados was unmatched anywhere in the world at any time prior to the nineteenth c­ entury in terms of “output per slave.”101 “Slavery, Barbados style,” as Beckles describes it, “became a celebrated global brand as an E ­ nglish invention.”102 The slave codes of Barbados ­were primarily concerned with preventing and punishing individual and collective acts of militant r­ esistance, and so the adoption of ­these laws elsewhere influenced the ways slave rebellion was viewed and how the state would engage in proactive policing to prevent it. As we saw in Ligon’s report from 1657, the routine vio­lence meted out on the bodies of the enslaved had the effect of minimizing r­ esistance. A combination of novel experiments in policing with age-­old brutal enslavement made the Barbadian planters “the creators and innovators of modernity’s most socially violent and eco­nom­ically valuable socioeconomic order.”103 Barbadian slave law “proved to be remarkably durable” and, as Richard Dunn finds, “continued in force with only minor modification for 150 years.”104 Simon Newman observes that Barbados set the standard for “the creation of an entirely new system of bound ­labor,” which “informed the development of racial slavery on Jamaica and other ­Caribbean islands, as well as in South Carolina and then the Deep South of mainland British North Amer­ i­ca.”105 Shortly ­a fter becoming governor of Jamaica in June 1664, Sir Thomas Modyford returned with a copy of the Barbados slave code that was passed into law three years prior.106 Upon the first meeting of the legislature a­ fter his arrival in Jamaica, they “enacted the Barbadian 1661 slave code virtually ­wholesale, superseding the act that the Jamaica Assembly had devised e­ arlier that year.”107 The 1688 revised code became law in Antigua in 1697, and in 1730 Bermuda explic­itly altered their codes to coincide with t­ hose in Barbados. Barbados influenced slave laws of the mainland E ­ nglish colonies by way of South Carolina, whose 1696 comprehensive code was copied directly from Barbados, which in turn influenced Georgia’s in 1755. Everywhere the



The First Black Slave Society

111

­ nglish succeeded in seventeenth-­century colonial Amer­i­ca, they did so, in E the words of Jack Greene, by “creating a new Barbados,” copying its administrative and management techniques, and borrowing from its system of laws.108 Creating a N ew Bar bado s on the M ai nland In 1663 Charles II granted a charter for a southernmost colony on the mainland to the Lords Proprietors. The corporation of the Barbados Adventurers initially attempted to ­settle Carolina, but conflicts with the Proprietors led them to abandon the pursuit and return to Barbados. Between 1665 and 1666, the Proprietors ­were able to establish a colony of 800 ­English inhabitants, but the proj­ect failed within a year. Between 1669 and 1670, the Proprietors established a fledgling colony with ­English settlers in Albemarle Point. Hinshelwood claims that initially t­here was “an under­lying ambivalence about the objectives of the colony and the place of slavery within it.”109 As early as 1663, Thomas Modyford and Peter Colleton, “impowered by the Lorde Proprietors to treat in their half,” promised the first settlers in the Province of Carolina a parcel of land.110 For “­every Negro-­Man or Slave brought thither to ­settle within the first year,” their parcel was increased by twenty acres.111 A ­ fter the first year, they would be granted an additional ten acres for “all Men-­Negro’s, or slaves.”112 The acreage was halved for “­every Woman-­Negro or slave.”113 ­A fter John Colleton successfully convinced the Proprietors to draw settlers from Barbados, the population in Albemarle was soon swamped by Barbadian immigrants—­along with their slaves. The 1669 Fundamental Constitutions of Carolina encouraged the use of Black slavery by granting masters “absolute Power and Authority over his Negro slaves, of what opinion or Religion soever.”114 The priority given to African slave ­labor was not so much driven by the preferences of economic planners as it was a concession to encourage mi­g rants from Barbados. Once the Proprietors ensured wealthy planters that the colony would re­spect their property claims over the bodies of their enslaved Africans, large plantations owned by Barbadian elites multiplied.115 Unlike V ­ irginia, Carolina was founded by wealthy planters and slave traders, who brought with them the experience gained from administering a mature slave economy and a related system of laws. Aside from the familiarity with exploiting slave ­labor, b­ ecause ­European servants working the fields w ­ ere susceptible to malaria and other diseases, the climate and lust for profits combined to further encourage the adoption of the same system of slavery. This was the first E ­ nglish colony founded on a reliance on slave l­abor. The colony was renamed Charles Town and soon a­ fter relocated its population of 1,000 settlers and 200 Black slaves to Oyster Point in 1680, where

112

Th e P o l i c e L a w o f S l av e r y

planters established large tobacco and rice farms in present-­d ay Charleston. By this point Barbadians, referred to as the Goose Creek men, dominated the colonial government and continued to hold to the belief that strict military management was a prerequisite for maximizing production and profits in their burgeoning slave society.116 The Goose Creek men resisted outside influence on their laws.117 ­Virginia and Barbados imported ­legal customs and common law, but they applied them in new ways. Bradley Nicholson calls this “innovative borrowing.”118 Beckles describes South Carolina as “a Barbados transplant in ­every re­spect.”119 ­There lawmakers instead engaged in “code borrowing” by directly copying and transferring from other established law. Southern colonies established in the eigh­teenth ­century then followed Carolina’s lead. The Goose Creek men regularly clashed with Governor Colleton and the Proprietors. Though the governor tried repeatedly to outlaw the enslavement of indigenes, the laws w ­ ere easy to skirt with a legislature controlled by slave traders.120 In 1682 the Proprietors campaigned to revise the Fundamental Constitutions so they could exert greater control over the politics and economy of the colony. One of the more consequential reforms declared that only Anglicans would be taxed, and instead non-­A nglican congregations could tax their own members directly.121 This aided the Proprietors’ campaign to recruit religious dissenters from E ­ ngland to s­ettle in Carolina and offset the power of the Goose Creek men. Hundreds of the richest Presbyterians and Baptists migrated from E ­ ngland and Scotland between 1682 and 1685. This diminished the influence of the settlers from Barbados, but in turn resulted in renewed and ongoing civil unrest. Mob vio­lence and destruction ­were commonplace, as was talk of insurrection. T ­ hese rumors, however, ­were not considered in the same light as the insurgent vio­lence of the slaves and so did not result in the same harsh punishment of alleged conspirators. The factious relations ­were quieted when a short-­term armed conflict with the Spanish began in 1686. The tenuous peace did not last for long. In 1690 the Goose Creek men petitioned for the removal of Colleton as governor and for Seth Sothell to replace him. Colleton responded by dissolving the legislative assembly, declaring martial law, and calling out the militia. His desperate attempt to hold on to power was thwarted when the militia was outnumbered by supporters of the Goose Creek men. Sothell assumed the governorship without open bloodshed and Colleton was effectively banished.122 The following year, the Proprietors ousted Sothell, dismissed all the Goose Creek men from the council, installed Philip Ludwell as governor, and suspended the Fundamental Constitutions. For the first time in Carolina, the structure of government was made to resemble the other mainland colonies; however, this did not stop the enduring influence of Barbadian law.



The First Black Slave Society

113

On February 7, 1691, the legislature passed a comprehensive slave code modeled on the Barbadian slave laws from 1661, 1676, 1682, and 1688. They called it an Act for the Better Ordering of Slaves. With less than a tenth the population of ­Virginia and a third that of New York, this new colony passed the first comprehensive slave law, which created a ­legal structure for a racialized system of chattel slavery that would be replicated throughout the South. The Carolina slave codes, Thomas L ­ ittle notes, “­were the most draconian on the ­English mainland.”123 Though law never has a direct, unmediated influence on social practices, and the letter of the law is never followed precisely and consistently, laws do reflect the perspectives and priorities of ­those who influence, write, and pass them. ­Little argues that the statutes reflect the felt necessities, expectations, fears, and anx­i­eties of the large planters and slave ­owners who sat in the assembly and wrote the laws. As such, “the South Carolina slave laws represent an historical fingerprint impressed upon the colonial landscape by the white ruling class.”124 The 1691 act did the work of clarifying and consolidating a host of laws imported from Barbados and passed in ­earlier years. It was a comprehensive plan for administering a system of slavery that would aid the large planters to accumulate capital. The slave code sought to manufacture an order founded in the p­ opular and military regulation of the enslaved, an order defined as ­counter to the ­imagined and real threats of slave insurrection. Slavery was racialized at the outset in Carolina, and the color line continued to define bonded ­labor in the colony. In 1712 a Carolina planter named James Freeman explained the ­English ­were not enslaved, that only that ­those who “are desirous to Transport themselves thither, and are not of Ability to pay their own Passage over, they are generally oblig’d, by Indentures, before their Departure hence, to serve in that Country, as Servants or Apprentices do h ­ ere, for the Term of Four Years, to commence from the Time of their Arrival, and no longer.”125 ­A fter completing their indentures, Freeman adds, they are “then at Liberty to follow what lawful Business they please to undertake to their own Advantage and Satisfaction.” Not only w ­ ere indentured servants freed, but they ­were able to “request to the proper Officer” to have land assign’d him from the Lords Proprietors as an Encouragement to ­People to resort thithter, only payng a small Yearly Rent, and then, if he is an industrious labouring Man, he may be credited by the Town’s merchants, or Shop-­keepers, for necessary Implements for his pre­sent Use, and likewise with his Neighbours for a ­l ittle Stock to begin withal, and then by his Care and Industry in few Years, especially if his Hogs thrive well, h ­ e’ll be able to enlarge his Stock of c­ attle, and purchase more Land, and also, by Degrees, purchase Slaves to work with him in his Plantation.126

114

Th e P o l i c e L a w o f S l av e r y

Freeman contrasted the servant and the slave, explaining slaves ­were distinguished on the basis of a lifetime of enslavement and what Orlando Patterson calls their “natal alienation.” Freeman describes the distinction: ­ hose we call Slaves, are a sort of Black ­People, ­here commonly call’d T Blackmoor’s, some few kept h ­ ere in ­England, by Gentry, for their ­Pleasure, but are t­ here bought by the Inhabitants, from the Merchants Trading to Guinea, and other Places, where they are first brought from; but their proper Names are Negroes. . . . ​W hen ­these ­People are thus bought, their Masters, or ­Owners, have then as good a Right and Title to them, during their Lives, as a Man has ­here to a ­Horse or Ox, ­a fter he has bought them. . . . ​T hey are call’d Slaves, not b­ ecause their L ­ abour is more Slavish or Servile than Servants ­L abour is h ­ ere, nor often times so hard to perform as the L ­ abour requir’d from Servants in this Country, but ’tis, ­because they are never Free-­Men, or W ­ omen, during their Life, nor their ­Children ­a fter them, who are u ­ nder the same Circumstances of Servitude as their Parents are, during their Lives also.127 What began in a 1662 law applying to only a thousand ­people in a colony with a population over 75,000 had within fifty years applied to 25,000 enslaved Blacks. The practice of enslaving only members of one race established a material basis for an ideology that wedded self-­possession to white citizenship and self-­d ispossession to African origin. A most fundamental property relation was conceived by the principal ­philosopher of property, John Locke, who wrote that “­every man has a property in his own person: this no body has any right to but himself.”128 For Locke, “the ­labour of his body, and the work of his hands” are also the property of each person. ­Because Locke was also a colonial administrator who helped to author Carolina’s original Fundamental Constitutions and a 1682 revision to clarify that the slave ­owner was to have “absolute power and authority over his negro slaves,” his role is particularly revealing for how property and liberty ­were conceived in the practices of the colonial state and its citizens.129 The denial to the slave of the “property in his own person” would place the slave among the “inferior creatures” who lack it, dehumanizing them in practice before the colonists had a coherent racial ideology that conceptualized Blacks as subhuman. In 1740 the South Carolina Assembly codified the practice of racial slavery, declaring that all “negroes” and “mulattoes” currently in the province and all t­hose who would arrive afterward “are hereby to be and remain for ever hereafter absolute slaves.”130 This designation applied also to “all their issue and offspring born or to be born,” determined by “the condition of the ­mother,” no m ­ atter how remote the relation, and no m ­ atter how many paternal ancestors ­were white men who raped their maternal ancestors.131 Further,



The First Black Slave Society

115

the law determined they “­shall be deemed, sold, taken, reputed and adjudged in law to be chattels personal in the hands of their o ­ wners and possessors.”132 If a Black person felt unjustly enslaved, the law declared, “the burden of the proof ­shall lay upon the plaintiff,” and the presumption would always be that “­every negro” is “a slave, ­u nless the contrary can be made appear.”133 In 1856, jurist George M. Stroud opined that the ­legal princi­ples in this law, taken together, likely have “no pre­ce­dent in any other civilized country.”134 The peculiarity of ­these princi­ples was not ­limited to South Carolina, however, as similar components can be found in slave laws passed ­later in ­Virginia, North Carolina, Georgia, Mississippi, Louisiana, and Florida. ­These laws provide substantiation for Newman’s claim that Barbados “informed the development of racial slavery” in South Carolina—­a nd other mainland colonies through South Carolina’s influence—­a nd Green’s observation that ­England copied the administrative techniques and system of laws by “creating a new Barbados” on the mainland.135 The police law of slavery birthed in Barbados was fecund on the mainland.

C hap te r 5

Acquiring a Slave Society

When E ­ ngland seized control of the Dutch province of New Netherland in 1664, as much as one-­quarter of the population of what was renamed New York was Black and enslaved. New York was a port town unlike its northern neighbor, Boston. L ­ abor imperatives caused a unique pattern of widespread slave owner­ship.1 At the beginning of the eigh­teenth ­century, more than 40 ­percent of ­house­holders in New York City owned at least one slave, compared with 6.6 ­percent in Philadelphia and 2 ­percent in Boston.2 This chapter builds on and responds to Thelma W ­ ills Foote’s work explicating the pro­cesses of racial formation in colonial New York. In the first section, we see that before E ­ ngland took control of the colony, the link between Black skin and slavery was already codified in law and institutionalized in practice by the Dutch. No E ­ nglish colony had yet made such a ­legal identification. The second section of the chapter discusses how race transformed ­u nder ­English rule. An anomaly in the North, the extensive distribution of slaves among the settlers of New York resembled Charleston, South Carolina. 3 Especially ­a fter the ­English accelerated the importation of enslaved workers, the threat of insurrection was pervasive, which the colonists attempted to manage through slave laws that historian Foote describes as being “as restrictive as the black codes in the colonial South and, for that ­m atter, any slave society.” 4 Unlike Carolina, however, the colonial proj­ect in New York was characterized by social and national heterogeneity. Though whites ­were tasked with policing Blacks, differences of religion and national origin stymied the continuous efforts by the cap­i­t al­ist class to build a cross-­class alliance among whites. The color line was effective in determining who could be enslaved, but it did not reliably predict unity on the other side of that line. Bui lding a Slave Soc i ety i n New Amste rdam The Dutch West India Com­pany, founded in 1621, was a “quasi-­m ilitary trading mono­poly,” “charged with the task of implementing Holland’s plan of 116



Acquiring a Slave Society

117

colonial expansion.”5 Among other endeavors, the com­pany spent its first two years maneuvering to establish New Netherland in present-­d ay New York. Legend has it that it “purchased” Manhattan for the  equivalent of sixty guilders from a Canarse chieftain, comparable to the value of three hogs.6 New Amsterdam was founded at the tip of Manhattan Island, initially to serve as a foothold to control a trade network, mostly in pelts, castoreum, and wampum, already established with the indigenes on Long Island and farther up the Hudson River. Once established, it was to serve as an entrepôt, especially ­ a fter 1637, when the Dutch assumed control of Elmina, a key trading depot on the Gold Coast of Africa. U ­ nder the Dutch, the colony remained l­ittle more than “a farrago of petty artisans, merchants, soldiers, and corporate officials scrambling for status in a frontier milieu.” 7 The first settlers, comprised of thirty families sponsored by the com­ pany, arrived in 1624. In less than a ­decade, four of five of the patroonships failed. Some families relocated to other settlements, but most returned to ­Europe. In 1630, 300 colonists remained in New Netherland, with nearly all in New Amsterdam. Eight years ­later, the population of the port town grew to 400, while the population of the youn­ger colony of Boston exceeded 1,000 within years of its founding.8 The Dutch West India Com­pany strug­ gled to attract settlers despite the promise they would be exempt from taxation for their first ten years of residence and the assurance they could s­ettle at ­w ill, so long as they did not encroach on “Indian land.” 9 The com­pany pledged their protection “against all foreign and domestic wars and powers,” and to apprehend any fugitive servants and slaves. “To populate the colony,” Ira Berlin notes, the com­pany “scraped the Atlantic basin for settlers, accepting German Lutherans, French Huguenots, and Sephartic Jews,” laying the foundation for a multicultural urban colony at the outset.10 The 1629 charter committed the com­pany “to supply the colonists with as many Blacks as they con­ve­n iently can.11” This reference to “Blacks,” taken to mean “enslaved Africans,” is likely the earliest identification of skin color and enslavement in the laws of any colony on the mainland. It would be another forty years before ­Virginia’s General Assembly would enact laws with such an equivalence. Even Barbadian law did not use “Negro” and “slave” interchangeably ­u ntil 1644. Between the turn of the ­century and 1627, ­England did not transport any slaves across the Atlantic, while the Netherlands embarked with 1,829 enslaved Africans. Over the next d­ ecade, ­England dabbled in the transatlantic trade in just two years, while the Dutch embarked with another 3,348 slaves. Between 1639 and the year the E ­ nglish first identified “Negroes” and “slaves” in law, they embarked with another 2,671 enslaved Africans, while the Netherlands embarked with nearly 15,000. By that point, the ­English slave trade was taking off,

118

Th e P o l i c e L a w o f S l av e r y

and afterward the Dutch seldom trafficked in more slaves than E ­ ngland in a given year. Imports of E ­ uropean servant ­labor and enslaved Africans w ­ ere structured by economic ­m atters beyond any individual colony. Wars between colonizing nations blocked slave trade routes, l­abor markets created opportunities for the working class one day and incentives to sign indentures the next, and a willingness of the m ­ other countries to ensnare debtors or convicts in servitude all factored. In E ­ ngland’s plantation colonies, captives taken in the colonial conquest of Ireland added to the l­abor force of indentured E ­ nglish debtors and convicts. The Dutch, however, did not have such a reserve army at their disposal. The economy in Holland was thriving, and Dutch settlers found opportunities to shift from agricultural work to the trades, exacerbating the need to import slave ­labor.12 In addition to exploiting the transatlantic slave trade e­ arlier, the Dutch resorted to deliberately importing bonded workers of African origin to resolve their ­labor shortages before ­England’s colonies. Slavery was “an economic expedient,” David Kobrin explains, ­adopted “as a way to solve an economic prob­lem.”13 The com­pany first brought enslaved Africans to the colony in 1626, beginning with eleven owned by the com­pany, which used them to build Fort Amsterdam, roads, and other infrastructure, in addition to working them in small farms and clearing timber for agriculture and export.14 By the end of the ­century, Black slaves worked as artisans, skilled laborers, dockworkers, and domestic servants. During the first half of the seventeenth ­century, the slave trade was unreliable, and merchants in New Amsterdam ­were more inclined to export slaves for profit than to import them to exploit their ­ l abor. Ira Berlin explains that “slaves landed in the northern colonies singly, in twos and threes, or by the score, but rarely by the boatload.”15 ­These slaves “arrived in the North chained and manacled, but not ­u nder the horrific circumstances that accompanied the ‘tight packing’ of the M ­ iddle Passage, the nightmarish journey between Africa and the New World.”16 Though the slave trade in New Amsterdam was haphazard, the nascent cap­i­tal­ist class was often able to fulfill their ­l abor needs with bonded ­l abor, predominantly performed by ­those of African origin, most of them enslaved for life. ­Because population growth was slow overall, in the 1640s the proportion of slaves to the total population of New York peaked at 30 ­percent, which it never again equaled.17 In 1648 trade opened between New Netherland and Angola, but slaves ­were to be the only cargo returning from Africa.18 In the 1650s the Portuguese took control of Brazil from Holland, and the Dutch West India Com­pany shifted its slave trade to New Amsterdam to develop the colony into a major slave port.19 The growth of the enslaved population kept pace



Acquiring a Slave Society

119

with ­free whites, such that by 1660, t­here ­were more slaves in the colony than any other urban setting in North Amer­i­ca.20 ­Because few E ­ uropean bondspersons landed in the Dutch colony, as Leslie Harris notes, “African ancestry became increasingly impor­tant in defining the bound segment of the working class,” thereby exacerbating differences between African and ­European workers.21 ­Because the early settlers ­were traders without intentions of permanent residence in the colony, most slaves w ­ ere owned by the com­pany and hired out. Moreover, the colony was distinctly urban, with cramped residential conditions that encouraged slaveholders to permit their slaves to live nearby on their own and to hire out their time. 22 This had the effect of increasing the ­independence of slaves and of working against residential segregation. 23 Even rural slaves lived and worked with whites. This “ ­jumble of workers, ­f ree and slave, black and white,” as Berlin explains, “militated against isolation” and the “provincial outlook” more common on the plantations of the South.24 Preventive police responsibilities w ­ ere tasked to the militia. A ­ fter 1640, all male inhabitants ­were required by law to serve in the militia and to acquire a gun, keep it in good repair, and report when summoned to respond to threats posed by “enemies or traitors.”25 Failure to report for militia duties immediately upon being alerted resulted in a fine of fifty guilders. A law passed five years ­later created a position for an elected “Scoute,” who was given a preventive police mandate and granted “as large and ample power as is vsuallie giuen to the scoutes of any village in Holland, for the suppression or preuention of any disorders that may t­here arise.”26 The following year, constables ­were tasked with responding to “any Malefactor . . . ​ that s­hall go about to disturbe the Publique Peace and tranquility.” 27 New Amsterdam law made clear that the sheriff was l­ittle more than an officer of the court. One 1660 law specified that a sheriff could not make an arrest without a warrant ­u nless a crime was committed in his presence.28 With a shortage of ­labor, a priority for preventive policing was the prob­lem of fugitives. Runaway servants ­were punished with double time. 29 Anyone who assisted fugitive servants or slaves was to be fined fifty guilders. 30 Criminals who could not pay fines ­were held in default and, a­ fter a law passed in 1642, ­were sentenced to “work three months with the Negroes in chains.”31 The militia was also directed to prevent “all countenance, lodging, asylum and maintenance” of runaways, vagabonds, and pirates. 32 All subjects of New Netherland ­were forbidden “to hold any conversation” with such parties, “much less harbor, conceal or hide them, or to accommodate or provide them with any necessaries . . . ​on pain of the confiscation of all his goods, and of being declared an ­enemy of the State and banished out of the country.”33 Furthermore, all subjects ­were “ordered and charged promptly

120

Th e P o l i c e L a w o f S l av e r y

and without any gainsay” to “immediately pursue, attack and capture, if pos­si­ble, such Pirates and Vagabonds.”34 Using a carrot and stick approach, ­because failure to perform this police duty was the same as abetting, fulfillment meant they would gain “the sum of One hundred dollars for e­ very Pirate or Vagabond who w ­ ill be delivered into the hands of the Director General and Council or their Fiscal.”35 When M ­ aryland and V ­ irginia ­were barely socie­ties with slaves, New Netherland was fast becoming a slave society, developing a mercantile economy that relied on slave ­labor, but nonetheless strengthening the ­legal and practical freedoms of the enslaved. The close-­ quartered living and the hiring-­out system helped afford the enslaved the ability to be more deeply incorporated into the mainstream life of the colony and to enjoy many rights of citizens. 36 Enslaved Blacks had access to the courts, and some attempted to sue for their freedom. F ­ ree Blacks had a l­egal right to own property, a right that was restricted ­a fter control of the colony was transferred to ­England. A small farming community, mostly made up of ­free Blacks, was established on the outskirts of New Amsterdam. They sold produce in the public market, and some farmers ­were prosperous enough to employ white men and ­women. 37 Enslaved agricultural workers in the rural areas sold produce from their own gardens in urban markets, and while in the city they frequently visited friends and relatives.38 ­Free and enslaved Blacks socialized with whites, especially sailors, at parties, taverns, and cockfights.39 They committed crimes together, and whites helped enslaved Blacks sell property stolen from their masters.40 The color line determined who could be owned for life, but it did not reliably result in a social divide between Blacks and whites. Though slavery and African origin corresponded, some New York slaves gained a peculiar status as “half-­slaves,” whereby they lived in­de­pen­ dently and saw some financial gain from their ­labor. In 1644 the director and Council of New Netherland emancipated eleven “Negroes” who “served the Com­pany” for e­ighteen or nineteen years, along with their wives. The act placed them “on the same footing as other ­Free p­ eople” to earn their livelihood “by Agriculture, on the land shewn and granted to  them” by the com­pany.41 Their manumission was conditional, as they ­were “bound to pay for the freedom they receive.” The law specified that each man pay annually “as long as he lives . . . ​thirty skepels of Maize, or Wheat, Pease or Beans, and one Fat hog, valued at twenty guilders.” In the event that they failed to pay their “yearly tribute,” they would forfeit their freedom and “return back into the said Com­pany’s slavery.” 42 The act contained an additional condition: “that their c­ hildren at pre­sent born or yet to be born, ­shall be bound and obligated to serve the Honble West Indian Com­pany as Slaves.” 43 As Berlin finds, “half-­freedom was calculated to



Acquiring a Slave Society

121

benefit slaveowners, not slaves, by spurring youthful slaves to greater exertion and relieving o ­ wners of a responsibility to support the aged or infirm.” 44 ­These “half-­slaves” became fluent in Dutch, a­ dopted Dutch surnames, and joined the Dutch Reformed Church.45 Most l­ater had c­ hildren who ­were born ­free and purchased the freedom of their enslaved ­children. Before ­England assumed control of the colony, the com­pany granted unconditional freedom to the half-­slaves, who at the time numbered about seventy-­five.46 Slaves ­were charged with executing white criminals, and ­free and enslaved Blacks ­were integrated into the defense of the colony as members of the militia.47 They waged war against indigenes alongside Dutch colonizers. During a protracted war against the Wappinger and Lenape in the 1640s, slaves fought armed with hatchets and pikes alongside the Dutch u ­ nder Director-­ General Willem Kieft.48 Despite their aid and recurring massacres of indigenes by the hundreds, New Amsterdam was devastated by the conflict and faced potential collapse. Two d­ ecades l­ater, still devastated by ongoing conflict with indigenes and hampered by slow economic growth, the Dutch did not attempt to muster a defense against an ­English incursion led by Richard Nicolls in August of 1664. The population of the colony was only around 1,500, 375 of whom ­were Black, seventy-­five of them ­f ree.49 Though the settler population was predominantly from Holland, about one-­fi fth w ­ ere from elsewhere. E ­ ngland assumed control of the fledgling urban settlement, taking on the unique task of not just ruling over a foreign settler population, but one that was also multicultural, peopled by ­those with varying national origins, languages, and religions, and just as Charles II assumed the throne, promising to install an Anglican government to rule over a unified kingdom.50 Assuming Cont rol In 1664 ­England assumed possession of a colony populated by foreign settlers and a proportion of slaves that exceeded that of the Chesapeake. The First Grant of the Duke of York devoted much of its focus to bringing this population ­u nder control by putting forward a system of laws, enrolling the settler population in their enforcement, and installing a militia, constabulary, and sheriffs. The First Grant decreed that “all Persons of what quality soever are obliged in duty & Conscience in their proportions to be Aiding and Assisting” in the observance of the colony’s laws.51 This princi­ple of ­popular solidarity with the state was reiterated in laws passed by the colonial assembly in 1720 and 1724.52 All freeholders ­were obliged to serve in the militia and to “Keep C ­ onvenient armes and ammunition in Their h ­ ouses.”53 Failure to show up for a watch shift resulted in a three-­shilling fine.54 In times of war, servants w ­ ere required to fight with the militia, but “if any Servant upon pretence of goeing to the warrs against the Enimy doe runne

122

Th e P o l i c e L a w o f S l av e r y

away from his Masters s­ervice he s­hall if taken be Greviously punished att the direction of the Governour and Councell.”55 The seventeenth-­century approach to policing in the northern colonies was not unlike policing in the ­mother country leading up to and during this period. Militia watches and constables w ­ ere generally charged with the maintenance of order and responding to threats to security. The watch was a rotating responsibility of all subjects that involved being alert for any active threats to safety and security, be it fire or external attacks on the settlement. Typically, constables and sheriffs functioned as officers of the courts, bringing citizens before magistrates who would adjudicate disputes or assign penalties for reported criminal violations. In the seventeenth ­century, such punishment was most often a form of corporal punishment rather than incarceration.56 Constables ­were to defer to justices of the peace, even for raising the “hue and cry”—or summoning citizens to aid in response to some observed or reported threat or crime. The First Grant specified that “where no Justice of the Peace is near, ­Every Constable s­ hall have full power, to make Sign and put forth pursuites or Hue and Cryes ­a fter Murtherers Man Slayers Theves Robbers Burglurers and other Capitall Offenders.”57 All citizens of New York ­were required to “Assist any Constable in the Execution of his Office,” and should they fail to respond to the hue and cry, “They ­shall pay for neglect thereof ten Shillings.”58 Should one “wilfully or Contemptuously refuse or neglect to assist any Constable,” the fine was forty shillings.59 Sheriffs ­were more constrained in their discretion, particularly in making arrests without warrants, which should be taken as a limit on the extent to which colonial sheriffs served as precursors to police. Even with a warrant in hand, a sheriff was l­imited in his authority. In 1684 the colonial assembly passed a law stating that “no Sherriff or other officer” could execute warrants on Sundays or religious or royal holidays, nor against someone traveling to or from “any publique fair or Markett w’ch ­ shall be  60 Established for ye Publique good of this Province.” Failure to abide by the law would qualify as false imprisonment, the executor of the warrant would be responsible for any damages, and the writ or warrant could be nullified. In the northern colonies, the constabulary was variably charged with responding to reports of vice, the priority for which changed with the times. As a result of this obligation, constables ­were involved in regulating the everyday lives of settlers. In New York they w ­ ere directed to “Apprehend without warrant such as are overtaken with Drink, Swearing, Sabbath breaking, Vagrant persons or night walkers provided they be taken in the manner, ­either by the Sight of the Constable or by pre­sent information from ­others.” 61 Constables ­were “strictly required frequently to Admonish the Inhabitants of Instructing their ­Children and Servants in ­m atters of Religion, and the Lawes of the Country.” 62 In the event that “any ­Children or Servants” over



Acquiring a Slave Society

123

the age of sixteen “become rude Stubborne or unruly refusing to hearken to the voice of their Parents or Masters,” t­ hese officials could “call before them Such an Offender, and to Inflict such Corporall punishment . . . ​not exceeding ten Stripes.” 63 As a factory city with a diverse population and a mercantile economy, situated amid disparate indigenous nations, and with privateers and rival colonial powers on the seas, the police power in New York was not much more coherent than its social context. The police mandate was broad and amorphous, and its execution was experimental in nature, borrowing structure from ­English traditions. As with the southern colonies, the state relied on its subjects to produce security, and race played a crucial role in the efforts of the ruling class to enroll the inhabitants. Compared with the South, the ­English ruling class on both sides of the Atlantic had a more complicated task in fabricating racial categories and identities for New York inhabitants. Intraracial Antagonism in Colonial New York As the British Empire expanded, its ruling class was scattered, and elites born in its colonial possessions multiplied. This alone led ­English colonial administrators to attempt to transform and expand ­English identity. With the acquisition of New York, Foote argues, “practicing the art of colonial governance involved the extension of ­English rights to the mainly foreign-­born Protestant settler population, the incorporation of ­ these ­ peoples into the ­political community of loyal ­English subjects, and the transplantation of legitimating institutions of E ­ nglish culture for the cultivation of ­English civilities in the settlers.” 64 Effectively, this entailed “a movement from defining En­g lishness as primarily consisting of the external trait of having been born on the soil of ­England to positing certain internal traits of innate racial disposition as the essence of En­g lishness. Crucial to this shift was the myth of the Anglo-­Saxon race, which legitimated the incorporation of Germanic ­peoples, including colonial Netherlanders, German speakers from the Rhineland, and even French Protestants, into the ­English nation.” 65 What Foote refers to as the “racial my­t hol­ogy” of the colonizers encouraged the practice of settler endogamy by promoting the belief that the city’s settler population of British mi­g rants, German immigrants, and long-­e stablished colonial Netherlanders w ­ ere descendants of the same ancient Germanic stock and naturally coalesced ­because of primordial affinities. Well suited to cultivating a shared sense of communal belonging among the settlers who colonized Manhattan Island, the myth of the Anglo-­Saxon race traced the origin of the ­English ­people to ancient Germanic tribes and therefore established a consanguineous bond between En­g lishmen and the branches of Germanic

124

Th e P o l i c e L a w o f S l av e r y

p­ eople in E ­ urope—­for example, the inhabitants of the Rhineland and the Netherlands.66 Foote refers to the efforts to revise the conception of E ­ nglish national identity as “the reterritorialization of En­g lishness.” 67 This was a conception that no longer relied on birth in ­England as the criterion for ­English subjecthood. Instead, En­g lishness relied on “a set of unique, internalized traits” that could “define membership in the national community.68” At the turn of the ­century, the ruling class was torn between their efforts to Anglicize and to Anglicanize the colony.69 Anglicizing the colony entailed bringing ­people of dif­fer­ent nationalities and religious faiths together ­u nder ­English identity, which depended on a policy of official religious tolerance. Anglicanizing the colony meant converting Lutherans, Calvanists, and ­those of other denominations to the Anglican Church. By connecting ­English identity to a more open conception of Chris­tian­ity, the ruling class created another stumbling block: what of enslaved p­ eople of African descent who converted to Chris­tian­ity? As French Calvinists and Dutch Lutherans ­were welcomed as E ­ nglish subjects, enslaved Blacks baptized in the official Church of E ­ ngland remained in bondage. Initially u ­ nder Dutch rule, New Netherlanders welcomed religious conversion of the Blacks they enslaved. This was part of their broader efforts to assimilate Blacks into Dutch life to satisfy economic needs. In a port town facilitating transatlantic trade, an enslaved polyglot was indispensable. But ­these acculturated Blacks also learned how to navigate the courts and trade networks to their advantage, and sometimes to the disadvantage of their masters and other settlers. The increase in the slave population had an inverse relationship to baptisms. From 1639 through 1665, the Dutch Reformed Church baptized one to three Black c­ hildren each year. Only one Black person was baptized in the Dutch church between 1656 and 1664.70 When E ­ ngland assumed control of the colony, the First Grant of the Duke of York declared that “no Christian ­shall be kept in Bondslavery, villenage or Captivity.” 71 At the outset, the E ­ nglish had l­ittle interest in baptizing their slaves in New York. As ­England expanded efforts to Anglicanize its colonies, sending missionaries to convert their inhabitants, Blacks w ­ ere increasingly partaking in the rite of baptism. Following suit with laws passed in the southern colonies, in 1674 lawmakers clarified that nothing in the law would “set at liberty any Negro or Indian Slave, who ­shall have turned Christian ­a fter they had been bought by a person.” 72 To correct the “Groundless opinion that hath spread itself ” in the colony that baptizing slaves would be cause for them to “become ­f ree and o ­ ught to be sett at Liberty,” the Assembly passed An Act to Incourage the Baptizing of Negro, Indian and Mulatto Slaves in October  1706.73 The law determined that



Acquiring a Slave Society

125

baptism would have no effect on a slave’s status and confirmed that “all and ­every Negro, Indian Mulatto and Mestee Bastard Child & C ­ hildren who is, are, and shalbe born of any Negro, Indian, Mulatto or Mestee, ­shall follow ye State and Condition of the ­Mother & be esteemed reputed taken & adjudged a Slave & Slaves to all intents and purposes whatsoever.” 74 The rights of colonial subjects and the exemption from slavery granted to E ­ uropean settlers by the colonial administrators w ­ ere not offered out of a special recognition of their humanity, nor was it a consequence of the ruling class adhering to the racial mythologies they manufactured. The extension of subjecthood to the inhabitants of colonial New York was a bargain for their loyalty to the state. Subjecthood was to function as “a bond of racial solidarity between the colonial rulers and the majority settler population,” a bond that the ruling class hoped would overrule the differences of national origin, language, and religion and thereby minimize the antagonisms between rich and poor, E ­ nglish and Dutch, Anglican and Calvinist.75 “Even impoverished white indentured servants held a firm claim to the rights of British subjecthood,” and once released from their terms of ­service they could join the rest of the white population in acquiring land, establishing h ­ ouse­holds, and becoming “prosperous merchants, s­hopkeepers, artisans, or farmers who held black Africans in lifelong, heritable bondage.” 76 To be white was to be enrolled in the proj­ect of producing a prosperous nation, a proj­ect that necessarily entailed a large pool of enslaved workers and the suppression of any r­ esistance to their servitude. The Precarity of Race ­English rule lasted less than a ­decade before Dutch military forces, with the aid and assent of the colonial Netherlanders, recaptured New York in 1673. The restored Dutch colonial government maintained control of Manhattan Island for over a year before it reverted to E ­ ngland once again at the 77 conclusion of the third Anglo-­Dutch War. Though ­English rule was restored, the factious politics of the colony w ­ ere renewed. L ­ egal distinctions between Dutch and E ­ nglish settlers remained in law u ­ ntil 1683, and by the end of the d­ ecade, the multifaceted antagonisms of the colony had cohered into two camps.78 In October  1689, ­u nder the leadership of the Dutch Calvinist Jacob Leisler, rebel settlers seized Fort James at the tip of Manhattan Island. Leisler’s supporters jailed officials loyal to James II and declared martial law. The rebels held control ­u ntil March 1691, when Leisler surrendered a­ fter a series of minor skirmishes with E ­ nglish military forces ­u nder the command of ­Colonel Henry Sloughter. Two months ­later, Leisler was hanged and beheaded for treason. As Foote notes, the rebellion “exposed the volatility of a settler population that was riven by confessional, linguistic, natal, and

126

Th e P o l i c e L a w o f S l av e r y

social antagonisms.” 79 Furthermore, “fallout from Leisler’s Rebellion polarized New York City’s p­ olitical life for more than a ­decade ­a fter Leisler’s execution.”80 The ­English colonizers discovered the color line was not reliable in securing unity among E ­ uropean settlers in New York. It is easy to overstate the significance of the reterritorialization of En­g lishness in a colony where ethnic divisions remained entrenched through most of the eigh­teenth ­century. This ideological proj­ect was more a theological curiosity than it was a ruling idea that cemented its place in the consciousness of common ­people. Foote acknowledges that “the solidarities of racial whiteness proved to be an imperfect solvent for the antagonisms that divided the city’s diverse and factious settler population.” 81 Further, she notes that “a shared faith in the basic doctrines of Protestantism, along with a common E ­ nglish language, p­ olitical status, and Germanic ancestry, proved to be insufficient to unite colonial New York City’s settler population.”82 Indeed, “in the long run the proj­ect of colony building and the task of colonial governance severely tested idealized, essentialist notions of En­ g lishness and primordial racial affinity.”83 Rather than forming the basis of a durable and reliable race consciousness, “­English culture asserted itself gradually and, at first, in the l­imited sphere of state affairs.”84 Dutch, German, French, and Jewish settlers in New York followed E ­ nglish law in order to earn “the rights and privileges of British subjecthood,” but other­w ise retained their culture. The ruling elite found it difficult to gain the alliance of “the city’s diverse and factious settler population,” but as Foote notes, “a shared interest in the violent subjugation of blacks, enslaved and ­f ree, became the glue that cemented a po­liti­cally efficacious though precarious solidarity.” In this way, she argues, “colonial New York City resembled colonial V ­ irginia, where black slavery and antiblack racism became a ­political solution to the threat that the intermediate stratum of restive settlers posed to that southern colony’s ruling elite.”85 ­Because membership in a white race was not an aspiration for settlers, the ruling class needed a complementary ideology to foster a cross-­class alliance. If the positive program of building racial membership among antagonistic f­ actions with ­European heritage was unreliable, turning t­hose antagonisms ­toward Blacks would offer an alternative. When white racial identity failed as a proj­ ect, “antiblack racism became a vital disciplinary mechanism, a means of governing the whites as well as the blacks.”86 Adapting Slavery to ­English Rule With the transition to ­English rule, ­little changed for the ­labor market. Colonial officials did not prioritize importing ­free workers or indentured servants, but did encourage slave traders. The few E ­ uropean settlers who did come to the colony, now renamed New York, established smaller farms



Acquiring a Slave Society

127

and businesses.87 The departure of the Dutch West India Com­pany meant the largest holder of slaves was gone, resulting in an even broader dispersal of small slave holdings among the white population.88 Foote argues that lawmakers “constructed a biracial social order in which the ­legal institution of racial slavery and the disciplinary mechanism of antiblack racism separated, as far as pos­si­ble, the black population from the white population.”89 They took advantage of the racial differences between Africans and ­Europeans that the Dutch had already established through the practice of enslaving Africans and a system of slave law to legitimate that practice.90 On one side of the color line, “the social death of perpetual bondage became the sole inheritance of most black Africans and their descendants.”91 By including all “white Anglo-­Saxon Protestant settlers and their descendants,” regardless of natality, religion, or social status, “colonial New York City’s governing elite minimized cultural differences and subordinated social antagonisms within the city’s settler community.”92 The bipartite race relations established through slavery ­were made simpler a­ fter 1679, when the provincial assembly determined that “native inhabitants” could not be enslaved.93 The Dutch had extended rights to Blacks that the ­English w ­ ere unwilling to preserve. The 1664 Articles of Capitulation w ­ ere designed to pacify colonial Netherlanders and bring them into the fold, but E ­ nglish law quickly undermined the ­limited rights ­free and enslaved Blacks had ­u nder Dutch rule. While lowly whites maintained the rights of ­English subjects, ­free Blacks, including landowners, saw their privileges stripped away by the new colonial power.94 The new slave laws ­were influenced by the same harsh economic considerations the ­English followed in Barbados. The connection to the sugar islands was direct. New York exported foodstuffs to the E ­ nglish West Indies and returned with slaves. The Duke of York ruled the newly acquired colony. He was also the director and primary financial beneficiary of the Royal African Com­pany, which monopolized the E ­ nglish slave trade. ­A fter the mono­poly ended in 1698, merchants in the city retained “almost as strong a stake in the economic success of the sugar islands as the planters themselves—­a nd that success depended on slave l­abor at both ends.” 95 Prob­lem identification and preventive police solutions in the New York slave laws “followed the pattern introduced in Barbados and copied in the South.”96 In the early 1680s, the Common Council passed a series of laws attempting to limit interactions among slaves, and among slaves with whites and f­ ree Blacks.97 Slaves could not leave their master’s ­house without permission or gather in groups of four or more.98 Whites and f­ree blacks could not legally entertain slaves in their homes or engage in trade with them. A 1684 law declared that “no servant or slave e­ ither Male or Female s­hall e­ ither Give Sell or Truck any Comodity Whatsoever during ye Time of their ­service u ­ nder ye penalty of such Corporall punishm’t.”99 As Harris notes,

128

Th e P o l i c e L a w o f S l av e r y

“lawmakers sought to prevent slaves from stealing items from their masters and o ­ thers and selling them.”100 The same law stipulated that “if any person whatsoever ­shall buy or Receive from or Truck with any servant or slave,” they ­were required to compensate the ­owner of the property and to “fforfeit for e­ very such offence ye summ of ffive Pounds Currant money.”101 The same 1684 law that restricted interactions and trade with slaves stipulated a police response to fugitives: “If any servant or slave s­hall Run away from their Master or Dame ­every Justice of Peace within this Province is hereby Authorized and Impowered to grant Hue and Cry . . . ​a ll Constables and Inferior officers are hereby strictly required and Commanded authorized & Impowered to presse Men ­horses Boates or Pinnaces to pursue such persons by sea or Land and to make Diligent Hue and Cry as by the Law is required.”102 ­A fter 1692 the law forbade slaves to make loud noises, to be in the streets on Sundays, or to patronize taverns, upon punishment of twenty lashes.103 In 1708 the law stipulated that “­every Negro, Indian or other Slaves: That ­shall be found gillty” of “Drunkenness, Cursing or Swearing” or “talke Impudently to any Christian” was to “Suffer So many Stripes at some publick place as the Justice of the Peace in such place where such offence is Committed ­Shall think fit: not exceeding forty.”104 The punishment for the same offense committed by a white person was a fine of three shillings.105 Whites ­were fined forty shillings for selling “Strong Liquors” to “any Negro, or Indian Slave” ­after the passage of a 1709 law.106 As rights withered, making slavery more restrictive ­u nder ­English rule than ­u nder the Dutch, the enslaved responded through individual defiance. As Harris describes, “slaves stole more cash, clothing, and food from masters’ h ­ ouse­holds and ran away more frequently than they had ­u nder the Dutch. In defiance of the laws, slaves continued to gather in groups and ­a fter curfew, sometimes with the aid of lower-­class whites who turned their homes into illegal taverns for slaves.”107 To respond to the rebellious innovations of the enslaved, the colonial assembly enacted harsher restrictions and punishments for slaves and any who would convene with or aid them. Even as early at 1679, settlers who harbored fugitives ­were issued the hefty fine of twenty-­five pounds for the offense. In the early eigh­teenth ­century, lawmakers began to note the frequent ­resistance of slaves in the preambles to new laws. A comprehensive slave code passed in 1702 responded to slaves “Confederating together in ­r unning away, or other ill practices.” This law reduced the number of slaves who could gather together. It was no longer “lawful for above three Slaves to meet together att any other time, nor att any other place, than when it s­ hall happen they meet in some senile Imploym’t for their Master’s or Mistress’s proffitt, and by their Master or Mistress consent, upon penalty of being



Acquiring a Slave Society

129

whipt upon the naked back, at discretion of any Justice of the peace, not exceeding fforty Lashes.”108 In the event that “any slave presume to assault or strike any ffree-­m an or w ­ oman professing Chris­t ian­ity,” the slave could be committed to prison for up to fourteen days and “such other Corporal punishm’t (not extending to life or limb).”109 The use of imprisonment as a punishment of slaves was unusual in the colonies. The same slave code clarifies that “slaves are the property of Christians, and cannot without g­ reat loss or detriment to their Masters or Mistresses, be subjected in all cases criminal, to the strict Rules of the Laws of E ­ ngland.” Instead of imprisonment, slave o ­ wners ­were to pay damages to injured parties, and “the slave s­hall receive Corporal Punishment . . . ​a nd immediately thereafter be permitted to attend his or her Master or Mistress s­ ervice.”110 The 1702 slave code effectively negated the ­little access to the courts that remained ­a fter the assumption of ­English rule. The law stated that “no slave s­ hall be allowed good evidence in any m ­ atter, Cause or ­t hing whatsoever, excepting in Cases of Plotting or Confederacy amongst themselves, ­either to run away, kill or destroy their Master or Mistress, or burning of ­houses, or barnes or barracks of Corn, or the killing of their Master’s or Mistress’s C ­ attle and that against one another, in w’ch Case the Evidence of one slave s­ hall be allowed good against another slave.”111 A law passed six years ­later opened with an acknowl­edgment of slave ­resistance, this time with specificity. The 1708 Act for Preventing the Conspiracy of Slaves was written in response to “the Execrable and Barberous Murder comitted on the Person and f­amily of William Hallet Junr late of New Town in Queens County.”112 The punishment for slaves who “­shall Murder or other­w ise Kill u ­ nless by Misadventure or in Execution of Justice or Conspire or attempt the Death of his her or their Master or Mistress or any other of her Majesties Leige ­People not being Negroes Mulattos or Slaves within this Colony” was to “suffer the paines of Death in such manner and with such Circumstances as the aggrevation and Enormity of their Crime.”113 Slave law increasingly revealed the concerns of a growing slave population and the concomitant fear of insurrection. By the early eigh­teenth ­century, the “social equilibrium in New York City and the adjacent hinterland was predicated on the suppression of the entire black population, enslaved and ­f ree.”114 Bringing this population ­under control was ­going to require a united front of white settlers, but the fabrication of this solidarity was continually frustrated. As we see in chapter 8, this left colonial New York open to two of the most destructive slave rebellions in the colonial era.

Pa r t Th r e e

Black Insurrection and White Counterinsurgency in Colonial Amer­i­ca This part establishes how policing took shape in two southern slave socie­ ties and one northern slave society. Just as in E ­ urope, the police concept emerged out of the material necessities involving the fabrication of a working class, compelling ­labor, and regulating the bodies of a nascent working class. Throughout the British mainland colonies, slaves ­were policed by the militia and white citizens well before dedicated patrols w ­ ere established. During the eigh­teenth ­century, a deciding f­actor in the formation of slave patrols was the total slave population, its size relative to that of the ­English, and the concentration of the Black population in the towns and cities. The colonies with smaller slave populations did not create dedicated police to control them during the eigh­teenth ­century. They nonetheless passed similar slave codes and similarly directed their militia and white citizens to enforce them. In ­doing so, they articulated a police mandate, directed that mandate to defined groups to fulfill it, and used a system of rewards and punishments in attempts to ensure that they did. As part II demonstrates, before dedicated police o ­ rganizations ­were established, a persisting fear of insurrection was basic to the worldview of the settlers, which in turn gave rise to the police mandate. The police law of slavery entailed both the state management of slavery and the management of slaves. It meant controlling populations, in terms of regulating their bodies, administering—­sometimes increasing, ­others decreasing—­their importation, and facilitating their geo­g raph­i­cal distribution. Together, fulfillment of the law required converting Africans into fungible property, the authorization of whites to kill the enslaved to back up the demand for obeisance and in the interests of security, and the management of the racial mix of the colony’s population. 131

132  B l a c k I n s u r r e c t i o n a n d Wh i t e C o u n t e r i n s u r g e n c y During the late seventeenth ­century, South Carolina passed slave laws like ­those in ­Virginia; however, most settlers ­were Barbadian immigrants who already had developed laws like ­these ­decades e­ arlier. In Barbados, they had already experimented with vari­ous models of policing before settling on a system they re-­created in South Carolina. Eventually, that system would go on to influence police throughout the mainland South. Carolina founded the first slave patrols in 1704, only thirty-­four years ­after the first Barbadians arrived, whereas ­Virginia took 120 years to establish theirs. Despite having a population that was a tenth the size of ­Virginia’s, South Carolina had slave patrols twenty-­three years e­ arlier. Regardless of how fast it became coherent and developed, the police mandate originated in each of the colonies b­ ecause of the practical necessity to limit and put down slave rebellions. Part II addresses the origin of race and the police mandate in slave law, showing how local contours of the crises of underproduction and security, and the broader economic and geographic conditions of the colonies, ­shaped their construction. The legislative activity of the colonies in the late seventeenth ­century reveals both ad hoc and coordinated efforts to regulate slavery and slaves in response to perceptions of risk. In part III, we see ­those perceptions become real­ity, both in the form of slave rebellion and in the form of the practical activity of policing the colonies. ­T hese three chapters look at how threats of insurrection ­were actualized and how colonial officials directed the police power to confront ­these threats. ­Here the police mandate is translated into the practice of principal duties performed by slave patrols, the militia, and white citizens. In this look at the Chesapeake, South Carolina, and New York, we have an opportunity to track the achievements and failures of police in fulfilling its mandate. Each colony showed in time that the colonists’ fears of insurrection ­were infrequently—­though spectacularly—­actualized. In V ­ irginia and South Carolina, the police power wielded by the slave patrols was not always sufficient to contain the restive population of enslaved Blacks, particularly for the latter, where whites ­were vastly outnumbered. Even as the slave patrols matured and strengthened, their forces in combination could not prevent devastating uprisings. In the Chesapeake, methods of policing Blacks differed in several crucial ways from the model introduced by South Carolina. Though South Carolina’s patrols eventually served as a model for slave patrols that ­were founded even into the nineteenth ­century, the Anglo-­A merican slave socie­ties founded in the seventeenth ­century exhibited the same pluralism in their police methods as they did in their ­legal and ­political structures. In chapter 8 we see that for New York, the police power failed not ­because of a lack of ­organization on the part of the state so much as a consequence of the failure of whiteness to cohere the interests and activities of whites against the insurgent drive of racialized slaves. Where race was weak and underdeveloped, so too was the police power.

C hap te r 6

A “Patroll” to Suppress Domestic Dangers

“Barbadian code was the premier slave law code in the ­ nglish colonies,” Bradley Nicholson writes. Its impact on the mainland E came by way of Carolina.1 ­England’s first slave society had a profound effect on the mainland colonies through the importation of its ­legal and police mechanisms for controlling a majority slave population in a new and southernmost colony. Carolina originated as a slave society with a plantation economy, and quickly developed a police o ­ rganization to create and maintain a peculiar vision of the social order. ­There they founded the first slave patrols in 1704, thirty-­four years ­after the first Barbadians arrived. The speed of the development of Carolina’s economy and police apparatus was by virtue of it being modeled ­a fter Barbados by Barbadian immigrants, who ­were reasonably concerned about the much higher proportion of slaves among their population. When they founded Charles Town in Carolina, the Barbadian immigrants already feared slaves and had already gone through periods of experimentation with the policing of enslaved workers and in capturing fugitives. Ongoing trade between Carolina and Barbados permitted the communication of news and the sharing of ideas. Once on the mainland, Barbadian immigrants learned about outbreaks of rebellion in the West Indies. Aside from the regular plots and occasional uprisings in Barbados and the spate of revolts in Jamaica between 1673 and 1694, they learned of the 1687 rebellion in Antigua.2 This news troubled them as they proposed and passed laws to model their system of slavery and their policing of slaves using their experience in Barbados. More troubling was that the ratio of white freemen to Black slaves was beginning to resemble the West Indies, breaking sharply from the other mainland colonies. The first slaves in Carolina came from Barbados, but increasingly slaves w ­ ere arriving directly from Africa, not having already been subjected to the constant and brutal policing instituted years ­earlier on the island. As Peter Parish explains, they had a “more obviously ‘alien’ character” that inspired a move t­oward “a much more explicit 133

134  B l a c k I n s u r r e c t i o n a n d Wh i t e C o u n t e r i n s u r g e n c y and formal system of racial discrimination and a legally defined system of chattel slavery.”3 It was not merely the police law of slavery that was borrowed, but the more fundamental conception of order that the law crystallized and the methods of maintaining order that the state instituted by way of police forces.4 As in ­Virginia in the seventeenth ­century, Barbados and Carolina enrolled their entire white populations in the control of enslaved Blacks. Beginning in 1661  in Barbados and 1691  in Carolina, whites w ­ ere legally required to regulate the movement, huckstering, and other activities of the Black population, attempting to prevent their ­labor from being used for anything other than the production of surplus value for their masters and subjecting them to intensive surveillance, harassment, and state-­sanctioned vio­lence. Once the eigh­teenth c­entury was underway, both colonies had mastered the policing of slavery, which in turn created a model that was copied throughout the South. In Carolina we see the profound Barbadian influence on the creation and early functions of the first slave patrols. The fear of insurrection was not merely grounded in prior experiences or prejudices of the settlers, but also in an extant risk of being overwhelmed by spontaneous and planned acts of rebellion. Unlike V ­ irginia, Carolina was predominantly populated by enslaved ­people who regularly demonstrated the “domestic danger” faced by the planters and administrators. Both the articulation of similar fears and the creation of slave patrols modeled ­after South Carolina’s spread through the colonies in the following d­ ecades. The extension of sovereignty to white citizens and the use of slave patrols remained the foundation of social order throughout the colonial and antebellum periods. In the founding, early development, and growth of the slave patrols, we see the ge­ne­t ic and homological relationship between the militia and police. The theoretical purchase of this observation is that in British colonial Amer­i­ca, the police mandate and the activity of policing functioned with and without the presence of dedicated police o ­ rganizations, and so theorization of the origin of police need not be exclusively concerned with the latter. Nonetheless, the slave patrols themselves show the earliest example of modern police in our history, one that was regularly tried, tested, and adapted, and which ­shaped an enduring mandate that influenced policing throughout the colonies. The Bette r O rde ri ng of Slave s Carolina established a militia in 1671, with compulsory s­ ervice for e­ very man between sixteen and sixty years.5 Sally Hadden observes that this militia formed the basis for “the beginning of urban slave patrols.” 6 In addition to militia companies, the Carolinians employed a night watch o ­ rganized by 7 a constable and composed of a rotating group of six citizens. Though they



A “Patroll” to Suppress Domestic Dangers

135

­ ere expected to remain vigilant in discovering and breaking up secretive w slave gatherings, the watch was also tasked with being alert to any sign of disorder or threat to security. By 1673 the militia was engaged in coordinated action to hunt down fugitive slaves. As Hadden remarks, “from the ­owners’ perspective, a more systematic method of capture and prevention of flight in the first place was absolutely essential if the rapidly increasing slave population was to be controlled.”8 Slave hunters could only respond ­a fter the fact. The colony needed to prevent rebellion and flight. It needed a police. That a police mandate was voiced in a colony with but a few hundred settlers and a few dozen slaves—­a nd just a few years beyond initial settlement—­tells us about how mature the mandate was in the minds of the ­founders of Carolina when they arrived. The colony grew faster through the populations of ­European servants and enslaved Africans than by f­ree settlers. Servants and slaves engaged in ongoing social and economic exchange, increasing concerns over interracial rebellions like that experienced by Virginians in 1676. In 1683 the Assembly passed the Act Inhibiting the Trading between Servants and Slaves. The planters who campaigned for the law not only wanted to prevent interchange between lowly whites and Black slaves; they additionally intended to reassert the autonomy of the Barbadian planters, whose power was threatened as servants fulfilled the terms of their indentures and became small planters. A law passed in 1687 similarly tried to inhibit trade and interaction between small planers, servants, and slaves, but added new restrictions on the ­free movement of slaves. The law stated that “it ­shall not be lawful for any negroe or negroes, or other slave, upon any pretence whatsoever, to travel or goe abroad, from his or their master or mistresses ­house in the night time, between the sunsetting and the sunrising, or in the day time, without a note from his or their master or mistresse or overseer.” 9 This act, which shares its name with the 1683 law, granted authority to “any person or persons to apprehend or take” all ­t hose found in violation so they may “chastise or correct” them.10 With heightened fears of insurrection a­ fter a yearlong rebellion in Jamaica saw twenty-­five whites killed, the passage of this law was initiated when news from Barbados reached Carolina that Irish servants and African slaves w ­ ere plotting a revolt on the island.11 In November of 1685, citing worries about “hostile invasions and attempts by sea or land, which the neighbouring Spaniard or other ­enemy may make,” the Parliament in Charles Town ordered the construction of watch ­houses on Sullivand’s Island, at the mouth of the Ashley River, and at Port Royal.12 Months ­later their fears ­were confirmed, but the actions of the soldiers provide crucial insight about the real cause for the expansion of militia forces and posts. The law was expressly and exclusively focused on external threats, calling for the militia to meet their attackers. Believing

136  B l a c k I n s u r r e c t i o n a n d Wh i t e C o u n t e r i n s u r g e n c y their enslaved internal enemies ­were the greater threat, when they suspected an attack by Spaniards or indigenes, t­hese forces instead assembled in the towns to protect w ­ omen and ­children, anticipating that rebel slaves would seize on the opportunity provided by their absence to attack t­hese other­ wise defenseless targets. Slaves made up roughly one-­third of the population prior to 1690, but in the remote areas held by the larger planters the slave population was likely the majority.13 The white population had increased by 140 ­percent over the prior d­ ecade, but the Black population grew by 650  ­percent. In this burgeoning slave society, as Elsa Goveia puts it, “it had to be made clear that the slave was property and subject to police regulations.”14 Believing that “without police regulations the system of slavery could not have been maintained,” the Parliament met in 1691 to pass An Act for the Better Ordering of Slaves, modeled ­a fter the 1661 Barbados slave code and containing all the amendments made to it in 1676, 1682, and 1688.15 This slave code was not ­concerned with defining the terms of servitude or regulating the trade in h ­ umans. Rather, as L ­ ittle describes, the lawmakers “­were primarily concerned with police regulations” and believed that “without police regulations the system of slavery could not have been maintained.”16 The act dealt with the insufficiency of ad hoc methods in h ­ andling runaways and rebellion. No longer a voluntary and optional right, as the 1687 Act Inhibiting Trading defined it, this law made it a “required duty” for all whites to regulate the movement and other activity of Blacks.17 In addition to issuing a general mandate to the entire white population to engage in the work of policing slaves, the militia was given “new slave control duties, modeled upon the Barbados experience.”18 Militia com­pany captains ­were to “raise a ­convenient party of men” to respond to reports of runaways or rebel plots.19 Hadden asserts that “­t hese groups could be considered the first mainland patrols,” even if they w ­ ere rarely used and their duties w ­ ere more 20 ­limited than the patrols founded fourteen years l­ater. By 1695 ­there ­were about 2,000 slaves in Carolina. The colony’s elites required new economic regulations and police ­measures to control the largest proportion of slaves of any colony on the mainland.21 The following year lawmakers “took a more comprehensive approach to slave regulation” and established “a more coercive system of private enforcement.”22 In a striking example of code borrowing, lawmakers wrote a new comprehensive slave code containing three-­quarters of the 1688 Barbados slave code and its entire preamble. 23 Though all whites already had the duty to police slaves, the law assigned special responsibilities—­and punishments for failing to fulfill them—to the town watch, constables, and absentee ­owners. When whites fulfilled their duty to stop and question Blacks, they w ­ ere permitted



A “Patroll” to Suppress Domestic Dangers

137

to use any degree of force necessary in response to ­resistance or flight and ­were protected against prosecution should they maim or kill a slave. In the 1696 Act for Setting a Watch in Charles Town, and for Preventing of Fires, the Assembly assigned proactive policing duties to constables and the citizens they enrolled in the duties of the town watch. The rationale for the law is plainly stated: “negroes frequently absent themselves from their masters or ­owners ­houses, caballing, pilfiring, stealing and playing the rogue, at unseasonable hours of the night.”24 From this point forward, the law had directed a regularly o ­ rganized body of citizens, u ­ nder the command of a public official, to engage in the proactive enforcement of slave passes. Despite ­these legislative efforts, a 1699 report of the Lords Commissioners for Trade and Plantations noted the weakness of the militia relative to the size of the growing slave population.25 The prob­lem was compounded when threats of a Spanish invasion led the Carolinians to arm and train their slaves. The need for the militia to remain near the coast to defend against Spanish attacks left the plantations undefended—­just as slaves ­were armed and thought to be planning insurrections. As Hadden explains, “the colony needed two military forces: a militia to repel foreign enemies, and a patrol to leave ­behind as a deterrent against slave revolts.” 26 To fulfill this need, in 1704 ten members u ­ nder each militia captain ­were exempted from duty and directed to form the first slave patrols on the mainland. Patrols against Domestic Enemies In 1700 the population of South Carolina was estimated at 5,700, and by 1708 Blacks outnumbered the British settlers. 27 No other mainland colony had nearly such a proportion of ­humans held in bondage for the duration of their lives. The Proprietors and General Assembly passed An Act to ­Settle a Patroll in 1704, with a preamble stating in no uncertain terms that the founding of the slave patrols was primarily motivated by a need to prevent insurrection: “Whereas on the sight or advice of an ­enemy it ­w ill be necessary for the safety and defence of the inhabitants of this Collony to draw together to the sea coast, or other such place as the Generall s­hall direct, all the forces thereof; to prevent such insurrections and mischiefs as from the ­g reat number of slaves we have reason to suspect may happen when the greater part of the inhabitants are draw together.” 28 The patrols ­were to be the official enforcers of the 1691 Act for the Better Ordering of Slaves, except their work would be proactive, seeking out Blacks to inspect their passes and administering punishments in accordance with the e­ arlier comprehensive slave code. Ongoing staffing, payments, and penalties for members of the patrol would be governed by the law regulating the militia, An Act for the Better Settleing and Regulateing of the

138  B l a c k I n s u r r e c t i o n a n d Wh i t e C o u n t e r i n s u r g e n c y Militia and Appointing Look-­Outs. The law directed the general of the militia to nominate and “commissionate” at least one captain from each militia com­pany and to give them the “power to enlist ­under their respective commands ten men of e­ very com­pany.”29 Upon their se­lection, they w ­ ere discharged from their militia duties and assigned to slave patrols. Each patrol member was required to “provide for himselfe and allwayes keep a good ­horse, a case of pistolls and a carbine, or other gunn, a sword, a cartouch box, with at least twelve cartridges in it, u ­ nder the penalty of tenn shillings.”30 Failure to attend a patrol would result in the same fine “for ­every neglect of appearance”—­except “in time of allarm” the penalty was raised to ten pounds. 31 Since at least 1685, a constable or other official was required to maintain a census of all citizens and assign each of them a shift in the town watch. By 1696 the watch had already been enforcing slave pass laws, adding to their duties of keeping an eye out for strangers, fires, and loose goats. The advent of the slave patrols considerably expanded watch duties and activities. For routine night patrols, a captain or lieutenant of the watch was to muster citizens to participate and fine ­those who failed to participate, borrowing the specifics from the Act for the Better Regulateing the Watch in Charlestown, passed by the Assembly in 1703. The Assembly anticipated citizens would be reluctant to reliably participate in night r­ides and delivered the burden of overcoming their hesitation to the watch officers. If they w ­ ere remiss in levying fines on citizens for “non-­appearance” for slave patrol duty, the officers w ­ ere fined forty shillings.32 B ­ ecause citizens ­were essentially conscripted into the slave patrols, their members included wealthy planters and former indentured servants, who together hunted escaped slaves, assaulted rogue maroon communities, enforced slave passes, broke up meetings of Blacks, and ransacked their homes. Patrol duty was a cross-­class alliance in action. In her landmark history, Slave Patrols, Sally Hadden outlines the “three principal duties” of the patrols as searching slave quarters, dispersing gatherings of slaves, and “safeguard[ing] areas around plantations and within towns by riding or walking along the roads.”33 When searching slave residences, the patrollers w ­ ere primarily looking for weapons of revolt, educational materials like paper and books, and unauthorized occupants. 34 The patrols frequently visited and maintained thorough surveillance on plantations thought to be at higher risk of harboring troublesome slaves. They focused their efforts “on plantations where t­here ­were few, if any, whites,” b­ ecause “the greatest concern to slave ­owners was the idea that slaves might be unsupervised at any time.”35 The patrols w ­ ere expected “to control and define acceptable spaces for black congregation . . . ​by forcibly keeping slaves on plantations and out of par­tic­u ­lar places such as taverns or markets.”36 Ryan Quintana remarks that in this way “slave patrols and state regulations turned



A “Patroll” to Suppress Domestic Dangers

139

all slaves—in their homes and in their daily travels—­into suspected criminals.”37 The slave patrols had established “beats,” initiating a police practice that has persisted since.38 Ultimately, as Quintana explains, the patrols ­were tasked with walking a precarious line between “protecting planters’ property rights over the bodies of the enslaved and encouraging economic expansion, and at the same time ­were responsible for maintaining a sense of communal calm, particularly given the overwhelming number of slaves who resided and labored in the coastal plain.”39 All three of the principal duties involved patrollers in inspecting slave passes, taking on a responsibility that was other­w ise performed by all whites. From the first comprehensive slave codes, the state was invested in directing and regulating the mobility of slaves, rather than absolutely restricting it. The slave patrols allowed for the state to directly accommodate slave movement within the limits accepted by the colonial elites. Quintana observes that the slave patrols supplied a model for “a system that appeared to respond to white fears by limiting enslaved movement, while si­mul­ta­neously ensuring that the mobility that lay at the heart of the plantation enterprise went unrestricted.” 40 Once the patrols ­were active, the state recognized both the need for the slave passes but also a necessity to perfect them. The passes needed to provide patrols with the ability “to discern the imperceptible differences between slaves that ­were runaways and slaves that w ­ ere simply not on 41 the plantation.”  The mobility of enslaved Black workers was a functional imperative for the economy. The state used the passes to establish “a planter’s liability for an enslaved person’s actions while outside of the plantation bound­aries,” while also acknowledging “the planter’s abstract claims of property owner­ship over enslaved persons’ bodies.” 42 Quintana explains the passes ­were “written extensions of planter power” that “transformed slaves into abstracted, embodied extensions of their o ­ wners’ desires.” 43 As the pass system was revised, the passes became a police technology that united slave patrols and all whites, who shared in a common activity and thereby fulfilled a principal responsibility the state placed on all its citizens, ­whether they ­were operating in their private capacities or while conscripted into performing official state business. ­Because the slave passes ­were principally a productive tool to further exploit the l­abor of the enslaved, to procure value from their mobility in public space, enforcement was a crucial ­performance in maximizing the extraction of value from enslaved bodies beyond the confines of the private property of the plantation. ­Popular participation in the policing of Blacks enrolled citizens in defining the most fundamental property relation: that of self-­possession. John Locke, the premier ­philosopher of property, colonial administrator, and coauthor of Carolina’s Fundamental Constitutions, wrote that “­every man has a property in his own person” and that “no body has any right to but himself.” 44 Furthermore,

140  B l a c k I n s u r r e c t i o n a n d Wh i t e C o u n t e r i n s u r g e n c y “the l­abour of his body, and the work of his hands” are the property of each person. Slave masters took this property from ­those they enslaved, and the state transferred its role in defending the property relation to all whites, forging a peculiar bond between state and citizen whereby they shared the sovereign power over life. Patrollers w ­ ere permitted to administer whippings on the spot as punishment if Blacks did not have passes or ­were considered in violation of the terms of their passes. Perceived ­resistance or flight was sufficient cause for dozens of lashes of the whip on their bare backs. If a fleeing or resistant slave died at their hands, patrollers ­were compensated as though they had returned a fugitive in good health, and the ­owner was paid out of the state’s coffers to replace the slave. With the Spanish presence increasing in their colony in present-­d ay Florida, and the slave patrols active in the daily government of slaves, Carolinians armed their more trusted slaves for defense of the colony. In a June 1710 pamphlet about the geography of South Carolina, Thomas Nairne describes the “Military Strength and Discipline” of the colony in part owing to “a considerable Number of active, able, Negro Slaves” and “the Indians with whom we are in Friendship.” 45 While this document was more public relations than objective rec­ord, as it was aimed to entice potential E ­ nglish settlers, it nonetheless captures a moment when Carolinians felt their domestic enemies w ­ ere u ­ nder control enough to be entrusted with weapons and that their external enemies became their primary concern. It would not be long, however, before the slaves w ­ ere disarmed and the patrols given renewed ­orders to search their quarters for weapons. In 1712 an updated Act for the Better Ordering and Governing of Negroes and Slaves was passed. In one of the earliest expressions of racial thinking in mainland colonial law, clearly influenced by the Barbadians, the preamble reads: “the said negroes and other slaves brought unto the p­ eople of this Province . . . ​a re of barbarous, wild, savage natures, and such as renders them, wholly unqualified to be governed by the laws, customs, and practices of this Province; but that it is absolutely necessary, that such other constitutions, laws and o ­ rders, should in this Province be made and enacted, for the good regulating and ordering of them, as may restrain the disorders, rapines and inhumanity, to which they are naturally prone and inclined.” 46 On the mainland, lawmakers had not yet been so concerned with rationalizing their police ­measures on the basis of the “natures” of so-­called “negroes,” so when the discourse of barbarity and savagery was linked with African origin in law, it deserves special attention. The law defined Blacks and indigenes sold as slaves to be enslaved for life and for all their c­ hildren to be held as slaves. For ­these slaves, the law established a comprehensive ­legal code with methods of policing, judgment, and punishment specific to



A “Patroll” to Suppress Domestic Dangers

141

them, rationalized ­because of their “natures,” and to address crimes ranging from petty theft to assault on another slave, up to insurrection. That same year Carolina was divided into North and South Carolina. By 1720, South Carolina’s population had increased to 17,000, and 70 ­percent ­were Black, a proportion that remained steady for nearly forty-­five years. North Carolina was more populous, with more than 21,000 settlers in 1720, but only 3,000 ­were Black. For this reason, more than any other, North Carolina delayed establishing a slave patrol ­u ntil 1753, with the larger white population and militia able to control a small slave population widely distributed across the colony. In the settlements ­later included in North Carolina, lawmakers did not pass slave codes ­u ntil 1699, when the legislature enticed all white men to engage in capturing fugitive servants and slaves by offering a reward.47 Owing to the extensive use of white servants and the small slave population, early ad hoc policing in North Carolina was not exclusively focused on Blacks. A 1715 North Carolina law introduced a pass system and copied sections of South Carolina’s comprehensive slave codes passed in 1696 and 1712. The inspection of passes by North Carolina patrols “grew out of an e­ arlier comprehensive attempt to restrict the movement of ‘questionable’ ele­ments of society.” 48 ­A fter a slave insurrection in 1720, South Carolina’s patrols ­were reor­g a­ nized and slaves ­were disarmed and expelled from the militia. With concerns about slave revolts increasing, in 1721 the South Carolina patrol law was changed to merge the patrol and the militia, “with no distinction remaining between them.” 49 The next year, to prevent Blacks from conveying “intelligences from one part of the country to another” as part of “their secret plots and contrivances for insurrections and rebellions,” any ­horses owned by slaves ­were confiscated and sold by the justices of the peace.50 The racial mix of the settlers and the institutionalization of a system of racial chattel slavery was yet to completely divide the colony by the color line. Philip D. Morgan notes an event that would soon be inconceivable, when in 1723 two planters in York County claimed expenses related to the capture of a fugitive white servant by their Black slaves. 51 The appearance of some French settlers in Carolina raised regular suspicions that they w ­ ere sent as spies from Paris. Gerald Horne claims their arrival exemplified why the racial category “white” was yet to be reliable. 52 Both the racial mix and the incomplete division by race drove ­political efforts in the 1720s to resolve one with the other. In 1725, slaveholders with ten or more enslaved Africans w ­ ere required to hire one white servant to aid in the management of slaves, and traders w ­ ere encouraged to increase the importation of white servants.53 The next year, the Assembly debated a bill to encourage the

142  B l a c k I n s u r r e c t i o n a n d Wh i t e C o u n t e r i n s u r g e n c y hiring of poor ­Europeans on plantations to offset the proportion of Black slaves.54 The 1730s brought renewed fears of Spanish incursions and Black insurrections. Though African slaves produced greater profits, they presented the double threat of plotting their own insurrections and fighting for Spain to earn their freedom in Spanish Florida.55 The colonial administrators tried to ease the importation of Africans, but again failed in their attempts to find enough poor E ­ uropeans to take their place. T ­ hese efforts to limit rebellion through population management could not compete with the lust for profits to be gained by further exploitation of enslaved workers. Once Charles Town slave traders like Joseph Wragg ­were ultimately able to break the slave trade mono­poly of the crown’s Royal African Com­pany, the industry was taken over by privateers and pirates who escaped close regulation for over a ­century and a half, thereby limiting the ability of colonial administrators to racially manage the importation of bonded workers to the colony. During the 1730s the police mandate expanded to include order maintenance among the w ­ hole population, not just slaves. Especially in the city, patrols absorbed responsibilities of the watch, such as preventing the spread of and fighting fires. This is partly ­because, as we see in chapters 4 and 8, arson was a common tactic of slave ­resistance. The patrols monitored tippling ­houses that whites and Blacks frequented together. Slave patrols kept the homes and businesses of f­ree Blacks and whites u ­ nder close surveillance, particularly when they suspected that residents had formed ties with slaves through illicit trading.56 This work patterned patrol strategies, Hadden observes, ­because it was “easier to keep the suspicious ­f ree person ­u nder surveillance, through stationary patrolling, instead of attempting to monitor ­every slave in the neighborhood who might be contemplating rendezvous.”57 This tactic extended to other general policing activities, such as monitoring store­houses and fields to prevent theft.58 While about the towns, the patrols also enforced vagrancy laws. Together, ­ these general order maintenance activities show that “city patrollers attempted to control several dangerous threats si­mul­t a­neously.”59 Even though wealthy planters could afford to hire a replacement to serve in their stead, they remained involved in the patrols in part b­ ecause they “monitored not only slaves, but the shadowy underworld inhabited by poor whites.” 60 ­Under the influence of the elites, and certainly with their direct participation, the slave patrols offered the opportunity to engage in class control efforts. From 1734 to 1737, the legislature experimented with paying patrollers. Before this, their pay was similar to the constabulary, who ­were paid for each warrant served. In the first ­decades of the slave patrols, patrollers ­were only paid for each fugitive returned. With regular pay and a general order maintenance mandate, the slave patrols exhibited the basic traits police



A “Patroll” to Suppress Domestic Dangers

143

scholars use to identify police ­organizations—­roughly a ­century before the London Metropolitan Police S­ ervice and the Boston Police Department ­were founded. A ­ fter 1737, however, South Carolina lawmakers and planters resisted attempts to pay patrollers a salary, preferring to incentivize an active patrol with performance-­based remuneration. Just as the slave patrol’s mandate was expanding, the legislature was generalizing the original patrol duties. In 1735 the Assembly gave the patrol powers to officers of the court. ­Every justice of the peace could then require their constables “or other persons whatsoever” to “enter into any places where cabals of negroes are suspected, and to have the same power as any patrol, and search for guns, pistols, swords, cutlasses, and other offensive weapons, in negro ­houses or other suspected places; and the said weapons in the custody or keeping of any negro or other slave to take away, and the same detain to his own use.” 61 The law also clarified the requirement for high-­ranking officials in the militia, “on given notice” of “any runaway or other slaves,” to gather “a ­convenient party of men as a patroll, with equal privileges and power of a patroll, and with them to pursue and apprehend the said slaves, alive or dead.” 62 Negro Law in the Shadow of the Stono Rebellion ­A fter the patrols ­were in operation for a ­couple of ­decades, complacency about the urgency for increased patrols settled in for long periods.63 The slave patrols w ­ ere e­ ither actually effective at suppressing rebellion or the planters believed they ­were. What was once a per­sis­tent, open anxiety about the inevitability of conspiracies being hatched was displaced by a normal sense of invincibility. Regardless of the extent to which the patrols can be credited for it, the absence of o ­ rganized revolt led the planters—­a nd the patrols themselves—to drop their guard. Their confidence was occasionally shaken when rumored or ­actual slave revolts inspired renewed attention to regulating and enhancing patrol efforts. As Sally Hadden observes, in ­these moments of fear, “almost ­every aspect of regular slave patrols was altered. Their membership, pay, duties, and procedures changed to c­ ounter the increased threat that bondsmen presented.” 64 In 1737 Governor Thomas Broughton feared a Spanish invasion, but as Hadden notes, “securing whites from their own slaves took top priority.” 65 He responded by doubling the size of the slave patrols and called on Cherokee allies to prevent an uprising should the Spanish attack and the slaves seize upon the opportunity. Though open rebellion was rare, the best efforts of lawmakers and slave patrols could not entirely quell all conspiracies and the few attempts at insurrection. In Barbados, the planters attempted to suppress slave rebellion

144  B l a c k I n s u r r e c t i o n a n d Wh i t e C o u n t e r i n s u r g e n c y by mixing Africans from dif­fer­ent ethnic groups and national origins, at the very least by making communication difficult among groups who lacked a common language. Just as the color line divided the colonial population by race, differences among enslaved Africans w ­ ere overcome through the development of a common language, culture, and traditions.66 Seeing it firsthand in 1740, an Anglican commissary to South Carolina, Alexander Garden, described Blacks as “a Nation within a Nation.” 67 This unity offered ­organization and mutual aid in times of quiet suffering and in times of revolt. In 1739 the Stono Rebellion saw a force of dozens of slaves assault six plantations en route to freedom in Spanish Florida. The rebellion began with twenty enslaved Angolans, who killed slave o ­ wners and their families and raided their homes for weapons before burning them. They spared at least one slave o ­ wner, Mr. Wallace, b­ ecause as a con­temporary account describes, they “said they would not hurt him, for he was a good Man and kind to his Slaves.” 68 One slave ­owner, Mr. ­Rose, was saved by one of his slaves, who hid him away and attempted to pacify the insurgents. The rebellion grew in size along with the casualties, as one Carolinian recounted the following month: Several Negroes joined them, they calling out Liberty, marched on with Colours displayed, and two Drums beating, pursuing all the white ­people they met with, and killing Man ­Woman and Child when they could come up to them. . . . ​They increased ­every minute by new Negroes coming to them, so that they ­were above Sixty, some say a hundred, on which they halted in a field, and set to dancing, Singing and beating Drums, to draw more Negroes to them, thinking they w ­ ere now victorious over the w ­ hole Province, having marched ten miles & burnt all before them without Opposition, but the Militia being raised, the Planters with g­ reat briskness pursued them and when they came up, dismounting; charged them on foot. The Negroes w ­ ere soon routed, though they behaved boldly several being killed on the Spot, many ran back to their Plantations thinking they had not been missed, but they w ­ ere taken and Shot. . . . ​About 30 escaped from the fight, of which ten marched about 30 miles Southward, and being overtaken by the Planters on ­horse­back, fought stoutly for some time and ­were all killed on the Spot. The rest are yet untaken. In the ­whole action about 40 Negroes and 20 whites ­were killed.69 The legislature was quick to respond with new slave regulations and patrol laws written in “the shadow of the Stono Rebellion.” 70 A new Act for the Better Ordering and Governing of Negroes and Other Slaves in This Province opens by recognizing that slavery was essential to the colonial economy and that the system of slavery required that the enslaved “be



A “Patroll” to Suppress Domestic Dangers

145

kept in due subjection and obedience.” 71 One of the most comprehensive slave laws of any of the British colonies, the act has fifty-­eight sections, and was renewed in 1743 with four additional sections, and twenty-­one more in 1751. The law ordered capital punishment for “­every such slave and slaves, and his and their accomplices, aiders and abettors” if they “­shall raise or attempt to raise an insurrection in this Province, or s­ hall endeavor to delude or entice any slave to run away and leave this Province.” 72 The act renewed the state’s grant to “­every ‘white person’ a police power over any slave encountered off their master’s plantation.” 73 Quintana notes that ­because upholding the slave code was the responsibility of all white Carolinians, “the spacial governance of black Carolinians tethered together citizen and state.” 74 It commanded slaves to submit to questioning by any white person, and if they resisted, “it ­shall be lawful for any such white person to pursue, apprehend, and moderately correct such slave; and if any such slave ­shall assault and strike such white person, such slave may be lawfully killed.” 75 At the same time, this slave law sought to limit wanton cruelty, overwork, and killing of slaves on the grounds that it encourages rebellion. One section reads: if any person s­ hall, on a sudden heat or passion, or by undue correction, kill his own slave, or the slave of any other person, he s­hall forfeit the sum of three hundred and fifty pounds, current money. And in case any person or persons ­shall wilfully cut out the tongue, put out the eye, castrate, or cruelly scald, burn, or deprive any slave of any limb or member, or s­hall inflict any other cruel punishment, other than by whipping or beating with a horse-­whip, cow-­skin, e­ very such person s­hall, for ­every such offence, forfeit the sum of one hundred pounds, current money.76 This section of the law was rarely applied, and the accounts of slaves and o ­ thers testify to the frequent cruelties that transgressed it. It was both a pretense of civility and an instruction to not inspire a repeat of the Stono uprising. Similarly, the act specified more than any prior law the criteria for determining overwork, improper provisioning and feeding of slaves, cautioning enslavers against working their bonded laborers for more than fifteen hours in the summer and fourteen in the fall.77 While slaves w ­ ere to be clothed sufficiently to protect them against injury and illness, they ­were not permitted to “wear clothes much above the condition of slaves, for the procuring whereof they use sinister and evil methods.” 78 The act further restricted slave movement, requiring they travel with a white person or with a pass with specific details about the destination and duration of the travel. In order to prevent slaves from forging passes, the law outlawed the teaching of literacy, with a heavy penalty of a hundred

146  B l a c k I n s u r r e c t i o n a n d Wh i t e C o u n t e r i n s u r g e n c y pounds.79 Slaves w ­ ere not allowed to own boats or h ­ orses, nor to rent or 80 other­w ise procure housing or other real estate. In effect, the law retroactively declared martial law during the Stono Rebellion, declaring all responses to the uprising to have been a m ­ atter of necessity and thereby extending prerogative power to the entire white citizenry. Section 56 of the law reads: several negroes did lately rise in rebellion, and did commit many barbarous murders at Stono and other parts adjacent thereto; and whereas, in suppressing the said rebels, several of them ­were killed and ­others taken alive and executed; and as the exigence and danger the inhabitants at that time ­were in and exposed to, would not admit of the formality of a ­legal trial of such rebellious negroes, but for their own security, the said inhabitants ­were obliged to put such negroes to immediate death; to prevent, therefore, any person or persons being questioned for any ­matter or ­thing done in the suppression or execution of the said rebellious negroes, as also any litigious suit, action or prosecution that may be brought, sued or prosecuted or commenced against such person or persons for or concerning the same; Be it enacted by the authority aforesaid, That all and e­ very act, ­matter and ­thing, had, done, committed and executed, in and about the suppressing and putting all and e­ very the said negro and negroes to death, is and are hereby declared lawful, to all intents and purposes whatsoever, as fully and amply as if such rebellious negroes had under­gone a formal trial and condemnation, notwithstanding any want of form or omission ­whatever in the trial of such negroes; and any law, usage or custom to the contrary thereof in any wise notwithstanding.81 The 1740 act named and criminalized specific tactics of the Stono insurgents, prescribing “death as a felon” in the event that a slave “­shall wilfully and maliciously burn or destroy any stack of rice, corn or other grain, . . . ​ any tar kiln, barrels of pitch, tar, turpentine or rosin, or any other the goods or commodities of the growth, produce or manufacture of this Province; or ­shall feloniously steal, take or carry away any slave, being the property of another, with intent to carry such slave out of this Province; or s­hall wilfully and maliciously poison, or administer any poison to any person, freeman, w ­ oman, servant or slave.”82 Despite the Assembly’s insistence that “some crimes and offences of an enormous nature . . . ​committed by slaves . . . ​could not fall within the provisions of the laws of E ­ ngland,” the slave law shows some “innovative borrowing” from the Black Act, enacted by Parliament in 1723, which targeted vagabonds and imposed death sentences for petty offenses like “poaching rabbits, stealing fish, cutting down trees, or burning a haystack.” Orwell remarks that though “the draconian provisions of the Negro Act ­were rooted



A “Patroll” to Suppress Domestic Dangers

147

in the rice fields of South Carolina, its seed came from the criminal law of early modern E ­ ngland.”83 Nicholson finds that “the E ­ nglish prob­lem of regulating unemployed laborers and vagabonds was closely analogous to the regulation of servants, and l­ater slaves in the colonies.” 84 The government of “­every man and w ­ oman of the lower classes” meant that they “had master to look a­ fter him or her and prevent any wayward be­h av­ior. Men and ­women not directly supervised ­were hence a threat to order. Thus, it is no surprise that the same solutions to public order appear in the colonies that appeared in E ­ ngland.”85 What distinguishes colonial slave law from E ­ nglish laws like the Black Act, however, is that it was passed not merely to ensure that bonded workers remained productive and u ­ nder the control of an elite, but that the “good government” of slaves was primarily concerned with preventing rebellion. Alongside the slave act, the assembly passed on the same day An Act for the Better Establishing and Regulating Patrols. Its preamble clarified better than ever that the colonial administrators’ chief concern with the regulation of slaves was the prevention of insurrection, reading: “many late horrible and barbarous massacres have been actually committed, and many more designed, on the white inhabitants of this Province, by negro slaves, who are generally prone to such cruel practices, which makes it highly necessary that constant patrols should be established and kept in the several militia districts of this Province, for the better preventing any ­f uture insurrections or cabals of the said slaves.”86 With this law, patrols ­were more plainly defined and regulated, with a general structure that would remain in place u ­ ntil the Civil War. Before the passage of the law, the South Carolina patrols ­were drawn from the militia in accordance with the laws regulating them.87 The new law established a draft and protocol for substitution, districts of jurisdiction, and patrol beats to disperse the patrols. Contrary to the presumption that slave patrols w ­ ere tasked with traversing open rural spaces and backwoods areas, the patrol act directed them to major arteries of travel.88 A con­temporary account in London’s Gentleman’s Magazine assigns blame for the Stono Rebellion to the Spanish, who ­were accused of inspiring the insurrection to destabilize Britain’s hold on South Carolina and Georgia. The unknown author writes that “­there was a Proclamation published at Augustine, in which the King of Spain promised Protection and Freedom to all Negroes Slaves that would resort thither.”89 Spain was accused of sending men into Charles Town to inspire flight and revolt. Even as late as 1822, the blame was laid on Spain. Slave o ­ wner and anti-­abolitionist Edwin C. Holland wrote that year that the rebellion was “fomented by the Spaniards in St. Augustine, who clandestinely gave protection to all the fugitive slaves from this colony, and by sending their Priests as commissaries among our Negroes,

148  B l a c k I n s u r r e c t i o n a n d Wh i t e C o u n t e r i n s u r g e n c y created among them such wild and visionary ideas of liberty and freedom, as fi­nally plunged them into open rebellion.”90 Evidently, Governor Broughton’s worries from two years e­ arlier ­were well founded. “As citizens of weak colonies,” Hadden remarks, “white Virginians and Carolinians had good reason to fear the assistance foreign aggressors might offer their slaves.”91 On the other hand, as a “nation within a nation,” Blacks forged ties with allies, at vari­ous points fighting alongside indigenes, the French, and the Spanish, and l­ater with E ­ ngland against the Patriots, and still ­later with the North against the South. They had their own interests in mind, and so ­these alliances ­were not consistent or grounded in loyalty. Their readiness to realign their interests and fight made them a greatly feared group. In the 1730s, “Africans had become the most stalwart component of the militia in Florida,” and it was rumored that the Spanish paid them well for the scalps of E ­ nglish Carolinians.92 The responses to the threat of insurrection ­were larger than the direct policing of slaves. They s­ haped the structure of Britain’s mainland colonies. From the outset in 1733, slavery was banned in Georgia to serve as a “ ‘white’ wall of impenetrability blocking the militant thrusts from Spanish Florida” and “forming a catchment basin to ensnare fleeing Africans from Charleston.” 93 Efforts ­were expanded to import poor ­Europeans, treating Georgia “as a refuge for fleeing Protestants—­from France and eastern ­Europe particularly.” Gerald Horne finds that t­hese initiatives “also served to enhance the developing and potent category that was ‘whiteness.’ ” 94 Within years, however, when the profit potential of African slavery overruled the fears of security, slavery was legalized in Georgia. B ­ ecause the colony was built upon plantation agriculture, the result of the expansion of slavery was that poor E ­ uropeans and recent Catholic arrivals became surplus ­labor. Georgia responded by passing legislation to tax the slave trade and to use the funds raised to provide aid to poor whites. In 1757 Georgia founded a slave patrol modeled a­ fter South Carolina’s. By 1760 the South Carolina population approached 100,000, with the slave population growing apace, accounting for nearly two-­thirds. T ­ here ­were no ­organized uprisings between 1740 and 1766, but the feeling of being vastly outnumbered exacerbated anx­i­eties about insurrection. On December  17, 1765, Lieutenant Governor William Bull reported to the Charleston Board of Trade: 8000 [Africans] have been imported this Year, being nearly equal to three Years Importation. ­W hether this sudden Addition to a number already beyond a prudent proportion w ­ ill be productive of unhappy consequences, cannot be certainly foreseen, but I have a few days ago reced Information that some attempts of Insurrection to be made during



A “Patroll” to Suppress Domestic Dangers

149

t­hese Holydays, at which Time slaves are allowed some days of festivity & exemption from l­abour. I s­ hall therefore take proper m ­ easures to prevent the execution of such Designs by giving necessary directions to the Militia & Patrols to be alert for their Duty on that season which I hope ­w ill e­ ither discourage or suppress their attempt.95 Even the combined forces of the patrol, the militia, and the support of the white population generally w ­ ere insufficient to the task. Sally Hadden finds that “A few random acts of vio­lence by slaves within a single, contained community could prob­ably be suppressed by more slave patrols. But even with additional men and greater vigilance, patrols alone ­were thought to be an inadequate response to a large-­scale insurrection. Typically, if the rebellion was (or was believed to be) a large one, s­enior militia officers would be alerted and w ­ hole militia units could be called up for ­service.” 96 When Blacks escaped their enslavement and successfully fled the towns, they often ran away to the swamps and forests. For many of them, they ­were familiar with the hinterlands b­ ecause they worked in them. They “knew where they could retrieve supplies, where boatmen lingered, and the places least likely to come ­u nder the watchful eyes of planters and patrols.”97 By the ­m iddle of the eigh­teenth ­century, ­these formerly enslaved p­ eople had formed durable maroon communities, which added to the settlers’ fears of Black insurrection. In the months a­ fter the Stono Rebellion, “it became clear that some of the escaped rebels had become maroons, or perhaps returned to being maroons.” 98 More than three years ­after the rebellion, the South Carolina Gazette reported that “one of the Ringleaders of the last Negro Insurrection . . . ​was lately seized in Cotaw Swamp.”99 The economic incentive in the form of payment for returning runaways was not always sufficient to drive patrollers into the hinterlands and swamps. In 1751 lawmakers mandated that “any commander of a patrol, or any commission officer of the militia” who receives “information that any fugitive or runaway slaves that have been out thirty days, or longer,” he “­shall be obliged . . . ​a nd required, with all c­ onvenient speed, to summon a party of the men u ­ nder his or their command . . . ​to go in search of, and to take or disperse, such fugitive or runaway slaves.”100 Failure on the part of the commander or officer resulted in a steep fine of ten pounds, and t­hose who failed to aid when summoned ­were fined five pounds. The law reiterated the prior authorization of discretion in the use of lethal vio­lence, stating that “if such fugitives or runaways ­shall refuse to stand or submit to be taken, it s­ hall and may be lawful for such party to fire upon them.”101 The law likewise reiterated the ­popular sovereignty of white citizens, reading that “it s­hall and may be lawful to and for any white person . . . ​to apprehend . . . ​a ny notorious fugitive slave that ­shall have been runaway for the space of twelve months, or upward. And in case

150  B l a c k I n s u r r e c t i o n a n d Wh i t e C o u n t e r i n s u r g e n c y such fugitive slave cannot be runaway, other­w ise taken, it ­shall be lawful for any such white person . . . ​to kill such notorious runaway.”102 More than a ­decade l­ater, the maroon communities had increased in number and size, particularly to the south, and rebellions w ­ ere suspected to be the result of coordination between plantation slaves and maroons. Writing on December 25, 1765, to Samuel Wyley, a trader who the lieutenant governor relied on as an ambassador to the Catawba, Bull reported that the plot he had discovered two weeks prior involved not only many enslaved Africans on the plantations, but also maroons in Colleton County. He requested additional men and the employ of Catawba Indians to assault the maroon communities along the Edisto River. He wrote: “To prevent as far as pos­si­ble any attempts of the like nature for the ­future it is Judged very necessary to hunt out the Recesses where the runaway negroes harbour as they are the sources from whence such an Evil is most likely to spring, and to effect which no method affords so prob­ably a prospect of success as by employing a party of the Catawba Indians to go upon that s­ervice.”103 Five days l­ater Bull wrote Wyley to explain the patrols had discovered further alliances between the plantation slaves and the maroons, this time in the swamps of St. Paul’s and St. Bartholemew’s Parish, in the swamps near ­Horse’s Shoe and near Spoons Savannah. On January  14, 1766, Bull reported to the South Carolina Commons ­House of Assembly that the militia and slave patrols “effectually disappointed all hopes which might have encouraged the Negroes to such an undertaking” and had “secured our Quiet and tranquility for the pre­sent.”104 During the thwarted plot, well over a hundred slaves fled the plantations. They had indeed joined up with maroons in Colleton County, where members of the militia, slave patrols, and the Catawba assaulted the community and seized 107 escaped slaves. Bull ­later remarked, “the vigorous execution of our Militia & Patrol Laws for 14 Days before and a­ fter Christmas Day . . . ​d isconcerted their Schemes.”105 ­There is debate among historians about the veracity of concerns regarding the ubiquitous threat of insurrection, and about their potential for successful assaults on planters. The debate is a reflection of disagreements among administrators at the time. In this par­t ic­u ­lar incident, Bull reported that “examinations” of the captured runaways revealed firm plans for more than mass exodus. He implored ­t hose doubtful of the threat of insurrection to heed his warnings, writing in his report to the ­House of Assembly: Gentlemen, I cannot leave this subject without observing to you that altho’ the late wicked Machinations are now happily disappointed, and seem to be at an end. It is the part of wise men, and w ­ ill therefore



A “Patroll” to Suppress Domestic Dangers

151

be your care, not to suffer a pre­sent appearance of tranquility to lull you into a dangerous neglect of ­those means upon which only u ­ nder God, our safety and internal security is established, and to be preserved. The Cause of our Danger is Domestic and interwoven with almost all the Employment of our lives, and so ­ought to be our attention to the Remedy.106 This glimpse into a mere few weeks in South Carolina reveals that well a­ fter the patrols ­were instituted, planters and colonial administrators ­were cognizant about and fearful of demographic disparities, as enslaved Africans vastly outnumbered them. Their fears of insurrection w ­ ere likely exaggerated by this disparity. T ­ hese fears w ­ ere nonetheless confirmed by ­actual attempts at insurrection and confirmation of alliances between maroon communities and slaves that extended beyond trade in pilfered commodities to include plans for freeing slaves and assaulting plantations. T ­ hese capacities ­were seen as a primary source of insecurity for the colonies, which the slave patrols w ­ ere designed to prevent. Th e Fir st Pol i c e O ­ rgani zati on s Slave patrollers performed work that looked similar to overseers, the town watch, constables, slave-­catchers, and private citizens seeking rewards for capturing and returning escaped slaves. Not only did they differ from ­these groups, but they w ­ ere created out of a recognition that the o ­ thers ­were not designed to produce security against an internal ­enemy, nor ­were they ever able to do so. As Sally Hadden argues, “If the hue and cry system had effectively controlled slaves, constables and sheriffs would never have been supplemented with a new institution targeted specifically at slaves. Similarly, if the militia had been capable of ­h andling two dif­fer­ent tasks at the same time, that is, rebuffing both the internal and the external dangers, patrols might never have appeared.107 Slave patrol duties “ranged more widely than constables,” and, Hadden shows, slave patrols had “unique distinguishing qualities,” specifically setting them apart on the basis of “the official appointment that authorized slave patrollers to act on the community’s behalf.”108 Their action necessitated extensive discretion in their use of state-­sanctioned vio­lence. Members of slave patrols ­were indemnified by the law and protected by the courts when patrollers killed Blacks. As Hadden puts it, lawmakers ensured that patrollers w ­ ere permitted to brutalize Blacks “with the l­egal imprimatur of Southern society.”109 With few exceptions, the slave patrols ­were military in origin. Not only did slave patrols pick up the work of the militias; in most colonies, militia

152  B l a c k I n s u r r e c t i o n a n d Wh i t e C o u n t e r i n s u r g e n c y leaders ­were selected to administer the patrols, militia members ­were culled to staff them, and militia laws ­either influenced or stood in entirely for patrol regulations. Most aspects of the patrols ­were altered “when settlements w ­ ere threatened by war or invasion by an external e­ nemy; during ­t hese times, slave patrols became more active, and ­owners expected greater efforts by patrollers to preserve the white community’s safety.”110 The patrols ­were preventive in focus, producing security against the per­sis­tent threat imposed by an internal e­ nemy. The slave patrols not only regulated bodies. Administering the pass system also involved the monitoring and regulation of sanctioned and illicit markets. Both w ­ ere crucial components in capital accumulation and the creation of secure markets u ­ nder the aegis of the state. Regulating the movement and congregation of Blacks was the priority, but the “pass laws that patrollers spent hours enforcing developed out of concerns about numerous seemingly untrustworthy groups, not just slaves.”111 The slave patrols w ­ ere urban institutions at the outset. Residents of the rural areas complained that they w ­ ere being sent miles away to patrol the cities, leaving their towns without protection. As in Barbados, mainland cities employed more slaves in the skilled trades and in domestic work. A function of their jobs required greater mobility than ­those confined to plantations, and they w ­ ere already more proximate to whites. Enslavers and colonial officials recognized the threat of slaves who had a greater sense of freedom in the presence of a concentrated population of whites. The focus of police on the cities of Barbados was replicated by the slave patrols in Charles Town. Their urban origins and the citizens’ reliance on slave patrols in cities directly influenced “the creation of full-­t ime, paid police forces in the South—if not before the Civil War, then shortly a­ fter its conclusion.”112 The dedicated patrol ­organizations first formed in 1704, which we ­today call slave patrols, ­were the first police. They had unique and expansive authority unlike other parties charged with regulating the conduct of citizens and slaves. Slave patrols ­were fundamentally preventive in their orientation. In their mandate and their practices, the patrols straddled the urban–­r ural divide. Like con­temporary police, patrollers ­were compensated and identifiable by citizens and the enslaved. The slave patrols w ­ ere a military institution and w ­ ere staffed through conscription. The slave passes the patrols enforced w ­ ere not designed to prevent mobility but to regulate and administer movement and markets. The creation of this o ­ rganization at the early stages of the development of the cap­i­tal­ist economy shows the police role in the creation of a working class. The system of chattel slavery forcibly converted the enslaved into capital who w ­ ere mastered by their o ­ wners and by the state via police. Slave codes did not provide laws to enforce as much



A “Patroll” to Suppress Domestic Dangers

153

as they gave shape to the general police mandate, which was chiefly defined as counterinsurgency. Though entitled to administer punishments, the goal of the patrols was to maintain the security of the colony by containing a domestic e­ nemy thought to threaten its very existence. To that end, patrollers w ­ ere not only authorized by the state to use vio­lence, but ­were granted the prerogative power to act with extraordinary discretion.

C hap te r 7

Policing the Chesapeake

When the first permanent mainland colony in British colonial Amer­i­ca made the pivot from administering slavery to regulating slaves, it did so ­because Blacks ­were defined as threats to security, in the same way that the Powhatan and the Spanish ­were threats. In the last ­decades of the seventeenth ­century, colonial officials in V ­ irginia created a body of law that crystallized the image of Blacks as ­enemy insurgents. By the first ­decades of the eigh­teenth ­century, the colony depended on them as the primary source of l­abor. Though their lives w ­ ere made fungible and their bodies made killable, unlike the Powhatan and the Spanish, they ­were not an ­enemy to be eliminated or repelled by military force, but rather required containment and control by the state’s police power. Colonial administrators managed Black populations, both in terms of their physical bodies and in terms of their demographics. This early form of race management by the state was concerned with the overall number of f­ree and enslaved Blacks, the proportion of Black slaves to white indentured servants, and the proportion of Blacks to whites, overall. Officials in V ­ irginia and London had greater control over demographics when the crown’s Royal African Com­ pany held a mono­poly on the import of new slaves. By the turn of the eigh­ teenth ­century, the market took over, and so the profit motive—­r ather than raison d’état—­ d ictated population numbers and proportions. Managing ­these proportions was of l­ittle use when the statuses of indentured servants and slaves ­were comparable. Then, ­English origin proved to be an unreliable determinant of loyalty to the state. Bondmen of all colors fled plantations together, and white and Black workers joined together in rebellion. Interracial unity was short-­lived, as the distinctions between indentured servants and chattel slaves became sharper in the eigh­teenth ­century. ­These differences w ­ ere especially pointed ­a fter white skin was a guarantee for servants that they could not be owned as property for life; that they would be properly clothed, fed, and ­housed; and that they could depend on the courts to ­h andle their disputes, including ­t hose with their masters. During the seventeenth ­century, the laws passed by ­Virginia’s General Assembly and rulings of the General Court revealed the ad hoc nature of 154



Policing the Chesapeake

155

the state’s administration of bonded ­labor. The lack of detailed policy and systematic regulation belied the state’s continued interest in administering slavery. Lawmakers espoused ideas of social order in racial terms, found Blacks to be a threat to social order, and used that threat as cause for state-­ authorized vio­lence to maintain that order. Winthrop Jordan writes that by the turn of the ­century, “racial slavery and the necessary police powers had been written into law.”1 ­Virginia’s first comprehensive slave code, passed in 1705 and titled An Act Concerning Servants and Slaves, cohered ­earlier piecemeal, ad hoc legislation that defined slavery racially, made Blacks killable, and granted the police power to all whites.2 In it the General Assembly specified a wide range of regulations on unfree l­abor. The law unified ­earlier efforts by the legislature to define and divide the white and Black races, creating a basis for a form of citizenship that both produced and was defined by race. The very same legislative acts that transformed forced ­labor into a race-­based system of chattel slavery also declared that whites could not be owned as property and that the ­children of enslaved Black w ­ omen would be fungible. White servants ­were to be cared for and had recourse when they w ­ ere ill treated, while Black slaves ­were killable, and their masters ­were to be compensated by the state when security was advanced through the death of their h ­ uman property. This slave code retains some of the conflation of skin color, national origin, and religion that was pre­sent in ­earlier laws passed by the General Assembly. However, it is this 1705 law, taken as a w ­ hole, where skin color is clearly superordinate. The code declared “all servants imported and brought into this country, by sea or land, who ­were not christians in their native country, (except Turks and Moors in amity with her majesty, and ­others that can make due proof of their being ­free in ­England, or any other christian country, before they w ­ ere shipped, in order to transportation hither) s­ hall be accounted and be slaves, and such be ­here bought and sold notwithstanding a conversion to chris­t ian­ity afterward.”3 Although the law addresses servants as individuals, denoting their being Christians before embarking and their conversion thereafter, the reference to Christian countries shows that national origin was the deciding f­ actor. One who originates from a non-­Christian country would forever be marked by their origin and be classified as a slave. In addition to defining who would be a slave, the law also defined conditions ­u nder which one could not be a slave. The two pieces together reveal a distinctly race-­based system of chattel slavery. One section declared “no negros, mulattos, or Indians, although christians, or Jews, Moors, Mahometans, or other infidels, ­shall, at any time, purchase any christian servant, nor any other, except of their own complexion, or such as are declared slaves by this act.” 4 The law was retroactive, effectively manumitting the few whites who may have been held as servants by Blacks, stating that

156  B l a c k I n s u r r e c t i o n a n d Wh i t e C o u n t e r i n s u r g e n c y if any negro, mulatto, or Indian, Jew, Moor, Mahometan, or other infidel, or such as are declared slaves by this act, s­hall, notwithstanding, purchase any christian white servant, the said servant s­ hall, ipso facto, become ­free and acquit from any ­service then due, and ­shall be so held, deemed, and taken: And if any person, having such christian servant, ­shall intermarry with any such negro, mulatto, or Indian, Jew, Moor, Mahometan, or other infidel, ­every christian white servant of ­every such person so intermarrying, s­hall, ipso facto, become f­ree and acquit from any s­ ervice then due to such master or mistress so intermarrying, as aforesaid.5 The 1705 slave code renewed the authority of whites to kill Blacks. As in a 1669 law, the killing is justified by ­resistance to “correction,” not just resisting capture ­a fter taking flight. The 1705 law treats the killing of a slave as a nonevent: “if any slave resist his master, or o ­ wner, or other person, by his or her order, correcting such slave, and ­shall happen to be killed in such correction, it ­shall not be accounted felony; but the master, ­owner, and e­ very such other person so giving correction, ­shall be ­f ree and acquit of all punishment and accusation for the same, as if such incident had never happened.” 6 In this same section, the state goes beyond extending a remit to use lethal vio­lence for the purpose of establishing order, mandating that “if any negro, mulatto, or Indian, bond or ­free, ­shall at any time, lift his or her hand, in opposition against any christian, not being negro, mulatto, or Indian, he or she so offending s­hall, for e­ very such offence, proved by the oath of the party, receive on his or her bare back, thirty lashes, well laid on.” 7 ­Here we see that the citizen who has been granted the state’s authorization to use vio­lence is also granted the state’s mono­poly on vio­lence. Blacks could be assaulted with impunity, while even the pretense of vio­lence by Blacks would be severely punished. Should a slave be killed by a correction or punishment, the code indemnified the killer and established terms by which slave ­owners would be compensated by the state. The code outlines standards for terms of indenture and some rights of servants, including the right to appeal to the courts if they feel their rights are infringed upon. Section VII requires masters and o ­ wners of servants to “provide for their servants, ­wholesome and competent diet, clothing, and lodging,” and forbids “immoderate correction,” including a prohibition against whipping “a christian white servant naked, without an order from a justice of the peace.”8 Considered alongside the extensive remit for anyone to “correct” and apprehend slaves so severely that it might cause their death, this act defines differences that extend well beyond the l­imited terms of servants and the lifetime servitude of slaves. As Winthrop Jordan finds, “in the last quarter of the seventeenth ­century the trend was to treat Negroes more like



Policing the Chesapeake

157

property and less like men, to send them to the fields at youn­ger ages, to deny them automatic existence as inherent members of the community, to tighten the bonds on their personal and civil freedom, and correspondingly to loosen the traditional restraints on the master’s freedom to deal with his ­human property as he saw fit.” 9 In vari­ous periods of conflict with the Spanish, servants and slaves ­were armed to fight among the militia. Though the 1705 act was not the first policy that had the result of disarming Blacks, read alongside the provisions discussed above, we see the extent of efforts to distribute and limit the distribution of sovereignty beyond the state. The law forbade slaves to “go armed with gun, sword, club, staff, or other weapon.”10 As with prior, less comprehensive slave codes, the 1705 law reiterated a loosely defined passport requirement. No slave was permitted to “go from off the plantation and seat of land where such slave ­shall be appointed to live, without a certificate of leave in writing, for so d­ oing, from his or her master, mistress, or overseer.”11 The code allowed for detention by anyone of someone suspected of being a slave and without possession of a pass. The person who detained the suspected slave was to “deliver such slave to the next constable or head-­borough.”12 The constable was “enjoined and required, without further order or warrant, to give such slave twenty lashes on his or her bare back, well laid on, and so send him or her home. ”13 Elsewhere the law addressed how official organs of the state could mobilize its vio­lence to regulate Blacks, and particularly with reference, again, to “outlying slaves.” This time we see specific mention of the maroons, where the code addresses the “many times, slaves run away and lie out, hid or lurking in swamps, woods, and other obscure places, killing hogs, and committing other injuries to the inhabitants of this her majesty’s colony and dominion.”14 This is the first time a V ­ irginia slave law established a detailed ­process for dealing with such “outlying slaves,” including “impowering the sheriff of the said county, to take such power with him, as he ­shall think fit and necessary, for the effectual apprehending such out-­lying slave or slaves, and go in search of them.”15 Beyond addressing methods of apprehension, the code grants authority to the sheriff and county court to punish any of ­those caught, “­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.”16 In addition to explic­itly assigning a role to sheriffs and constables in the regulation of slaves, the act specifies rewards for ­those who capture runaway servants or slaves or who bring before the court ­those who “take up” runaways. Together t­ hese provide two of the key features of patrol acts that l­ater established slave patrols: the assignment of the task to specific officials of the state and terms of compensation for regulating slaves. As the prior chapter

158  B l a c k I n s u r r e c t i o n a n d Wh i t e C o u n t e r i n s u r g e n c y shows, despite being a youn­ger colony by more than half a c­ entury and with a total population about 10  ­percent the size of V ­ irginia’s, by 1705 South Carolina had already advanced beyond ­Virginia’s ad hoc methods for policing slaves. Having migrated from Barbados, where slave populations ­were a majority, the Carolinians had extensive experience with large slave rebellions. In 1704, they already had a designated slave patrol and the experience of experimenting with dif­fer­ent methods of remuneration for patrollers. As with the 1691 Act for Suppressing Outlying Slaves, the 1705 law forbids miscegenation and interracial marriage. One section of the code makes provision “for a further prevention of that abominable mixture and spurious issue, which hereafter may increase in this her majesty’s colony and dominion, as well by E ­ nglish, and other white men and ­women intermarrying with negroes or mulattos, as by their unlawful coition with them.”17 In such cases, “whatsoever ­English, or other white man or ­woman, being ­free, ­shall intermarry with a negro or mulatto man or ­woman, bond or f­ree, ­shall, by judgment of the county court, be committed to prison, and t­here remain, during the space of six months, without bail or mainprize; and s­ hall forfeit and pay ten pounds current money of V ­ irginia, to the use of the parish, as aforesaid.”18 To prevent interracial marriage, the law also extends prohibitions to officiants, stating that “no minister of the church of ­England, or other minister, or person whatsoever, within this colony and dominion, ­shall hereafter wittingly presume to marry a white man with a negro or mulatto ­woman; or to marry a white w ­ oman with a negro or mulatto man.”19 Th e Bette r Gove rnm e nt of Neg ro s The 1710 and 1720 ­Virginia census counts reveal a colony expanding, with 78,281 and 87,757 ­people, respectively. Both report the proportion of the Black population holding steady at 30 ­percent. Though the frequency, size, and destructiveness of rebellions ­were but a glimmer of what was to come, ­these ­decades saw regular small rebellions and a spate of rumors of conspiracies. ­Eighteen years ­a fter ­Virginia’s first comprehensive slave code, the General Assembly passed another, this time more explic­itly and extensively addressing “conspiracies and insurrections.” The security of the colonies and the social order w ­ ere defined in terms that cast Blacks as threats. The title of the 1723 law reveals as much: An Act Directing the Trial of Slaves, Committing Capital Crimes; and For the More Effectual Punishing Conspiracies and Insurrections of Them; and For the Better Government of Negros, Mulattos, and Indians, Bond or ­Free.20 Key ­here is the very last word, as the management of non-­whites was not restricted to t­hose who ­were enslaved. The General Assembly declared prior slave codes w ­ ere “found insufficient to restrain their tumultuous and unlawful meetings, or to punish



Policing the Chesapeake

159

the secret plots and conspiracies carried on amongst them,” and passed a series of provisions “for detecting and punishing all such dangerous combinations for the f­uture.”21 The twenty-­five sections of the act address preventing and limiting the size of meetings of “negros, or other slaves,” as well as banning the possession of weapons. This law provides greater detail than past slave codes as regards enforcement and punishment, including punishments for bearing false witness with regard to conspiracies, and for anyone who conspires with or provides quarter for runaway and rebel slaves. The first section provides the preventive orientation of nearly all of ­those that follow. Enforcement was directed to avert meetings of Blacks in order to thwart rebellions at the planning stage. It declares “that if any number of negros, or other slaves, exceeding five, ­shall at any time hereafter consult, advise, or conspire, to rebel or make insurrection, or ­shall plot or conspire the murder of any person or persons whatsoever, e­ very such consulting, plotting, or conspiring, ­shall be adjudged and deemed felony; and the slave or slaves convicted thereof, in manner herein ­a fter directed, ­shall suffer death, and be utterly excluded the benefit of clergy, and of all laws made concerning the same.”22 The mere attendance at a meeting was punishable. The Assembly decreed that “­every negro, mulatto, or indian slave, who ­shall come or assem­ble to such unlawful meetings” be punished for each offense by whipping on the bare back with “any number of lashes, not exceeding thirty-­n ine.”23 Another section renews the priority for a pass system. T ­ hose found “upon the plantation of any person or persons whatsoever, without the leave or consent, in writing, of his or her master, o ­ wner, or overseer, and without the consent and approbation of the ­owner or overseer of such plantation, it ­shall and may be lawful to and for the master, ­owner, or overseer of any such plantation or quarter, to correct and give such slave or slaves ten lashes, well laid on, on his or her bare back, for ­every such offence.”24 As with previous laws passed by the General Assembly, the state was content to extend both executive and judicial authorities to private citizens when it came to the regulation of slavery and the conduct of non-­whites. If “the common methods of punishment” prove insufficient ­because a slave is “notoriously guilty of g­ oing abroad in the night, or r­ unning away, and lying out, and cannot be reclaimed from such disorderly courses,” the Assembly permitted the court of the county “to order and direct ­every such slave to be punished, by dismembring, or any other way, not touching life, as the said county court s­ hall think fit.”25 ­T hese brutal responses w ­ ere likely to claim the lives of ­those being punished, so the Assembly saw fit to provide guidance on the ­m atter. They de­cided that “if any slave ­shall happen to die by means of such dismembring, by order of the county court, or for or by reason of any stroke or blow given, during his or her correction; . . . ​no

160  B l a c k I n s u r r e c t i o n a n d Wh i t e C o u n t e r i n s u r g e n c y person concerned in such dismembring correction, or accidental hom­i­cide, ­shall undergo any prosecution or punishment for the same.” 26 The only exception was made when “upon examination before the county court” they determined “that such slave was killed wilfully, maliciously, or designedly.”27 Even so, the responsible parties would not be indicted for murder. Though the willful and malicious killing would warrant such a charge, the highest charge that could be applied in such an event was manslaughter. The law assigned responsibility to “­every master, o ­ wner, or overseer of any plantation” to disallow “meetings of negros, or other slaves . . . ​on any pretence whatsoever.”28 T ­ hose who “knowingly or willingly, permit any such meetings, or suffer more than five negros or slaves, other than the negros or slaves belonging to his, her, or their plantations or quarters, to be and remain upon any plantation or quarter, at any one time, s­hall forfeit and pay the sum of five shillings, or fifty pounds of tobacco, for each negro or slave, over and above such number, that ­shall at any time hereafter so unlawfully meet or assem­ble, on his, her, or their plantation, to the informer.” 29 Mandating that slave o ­ wners and d­ rivers share in the punishment for allowing meetings was an unsurprising move, as colonists felt their peers’ laggard attention to the regulation of slaves was partly to blame for the increase in uprisings. So too was concern that the paltry law enforcement ­organizations ­were often remiss in their duties, for another section of the act declared that e­ very sheriff, under-­sheriff, or constable, who, upon his or their own knowledge, or upon information thereof to him or them made, of any such unlawful meetings, as aforesaid, ­shall fail forthwith to endeavour to suppress and disperse the same, and to carry the offenders before some justice of the peace, in order for the said offenders to receive due punishment, the sheriff, for ­every offence by him committed, ­shall forfeit and pay the sum of fifty shillings, or five hundred pounds of tobacco: Both which several fines, of fifty shillings, or five hundred pounds of tobacco, herein before-­mentioned, ­shall be to the informer; and may be recovered, with costs, in any court or courts of rec­ord within this colony and dominion, by action of debt, bill, plaint or information, wherein no essoin, protection, or wager of law, s­ hall be allowed, or any more than one imparlance. And the u ­ nder sheriff, or constable, failing to perform his or their duty herein, for e­ very offence by him or them committed. 30 As with the E ­ nglish ­Running Away with Negroes law passed in 1661, the Assembly sought to isolate Blacks from sympathetic whites, declaring that if any white person, f­ree negro, mulatto, or Indian, s­hall at any time hereafter be found in com­pany with any such slaves, at any such unlawful



Policing the Chesapeake

161

meetings, as aforesaid, or harbor or entertain any negro, or other slave whatsoever, without the consent of their ­owners, he, she, or  they, so offending, upon being thereof lawfully convicted, s­hall forfeit and pay the sum of fifteen shillings, or one hundred and fifty pounds of tobacco, to the informer: To be recovered, with costs, before any justice of the peace; and upon failure to make pre­sent paiment, ­shall have and receive, on his, her, or their bare backs, for ­every such offence, twenty lashes, well laid on.31 The punishment of inattentive law enforcers and the payment of fines to informers w ­ ere hardly new approaches to regulating police activities. As with other supposed crimes, this incentive to report them certainly contributed to the inflation of the extent of ­actual conspiracies. That the targets of punishment ­were already dehumanized through the pro­cesses of converting them to chattel was sure to have made informers more likely to report the slightest of infractions. ­Informants came in all colors, and the colonial elite ­were quick to listen. They w ­ ere also quick to brutally punish t­ hose who came forward with unreliable information. The Assembly attributed a supposed tendency ­toward the deceit of “Negros, Mulattos, or Indians” to their “not being christians.”32 ­T hose among them who gave false testimony regarding capital crimes w ­ ere “to have one ear nailed to the pillory, and t­here to stand for the space of one hour, and then the said ear to be cut off; and thereafter, the other ear nailed in like manner, and cut off, at the expiration of one other hour; and moreover, to order ­every such offender thirty-­n ine lashes, well laid on, on his or her bare back, at the common whipping-­post.”33 Another provision in the law sought to prevent the possession of “any gun, powder, shot, or any club, or other weapon whatsoever” by any “negro, mulatto, or Indian whatsoever.”34 This section of the code demanded any weapons be “forfeited to the seisor and informer,” which remained a common method of compensating private individuals—­ and eventually slave patrollers—­for their vigilance in disarming non-­whites. ­Those non-­whites found in possession of weapons ­were to be whipped up to thirty-­n ine times. Exceptions ­were made for “­every ­free negro, mullatto, or indian, being a house-­keeper, or listed in the militia,” who ­were permitted to own one gun.35 One par ­t ic­u ­l ar section of the law disenfranchised non-­whites, which produced controversy even among some whites. Section XXIII of the act declared that “no ­f ree negro, mullatto, or indian whatsoever, s­ hall hereafter have any vote at the election of burgesses, or any other election whatsoever.”36 The following year Richard West, ­legal counsel to the Board of Trade, questioned the denial of the right to vote to ­free blacks, writing to the governor that he “cannot see why one Freeman should be used worse

162  B l a c k I n s u r r e c t i o n a n d Wh i t e C o u n t e r i n s u r g e n c y than another meerly upon account of his complexion.”37 He admitted “for my own part I am perswaded that it cannot be just by a generall Law without any allegation of Crime or other demerit whatsoever to strip all ­free persons of a black Complexion (Some of whom may perhaps be of Considerable substance) from t­hose Rights which are so justly valuable to e­ very Freeman.”38 No response came, and none was requested u ­ ntil 1735, when the board’s secretary, Alured Popple, asked for an explanation from Lieutenant Governor William Gooch. In his response, Gooch recounted the General Assembly’s rationale for the 1723 act, writing: just before the Meeting of that Assembly, ­there had been a Conspiracy discovered amongst the Negros to Cutt off the E ­ nglish, wherein the Free-­Negros & Mulattos ­were much Suspected to have been Concerned, (which w ­ ill forever be the Case) and tho’ t­here could be no ­legal Proof, so as to Convict them, yet such was the Insolence of the Free-­Negros at that time, that the next Assembly thought it necessary, not only to make the Meetings of Slaves very Penal, but to fix a perpetual Brand upon Free-­Negros & Mulattos by excluding them from that g­ reat Priviledge of a Freeman, well knowing they always did, and ever w ­ ill, adhere to and favour the Slaves. 39 ­Because of such “insolence,” Gooch agreed with the Assembly that “a distinction o ­ ught to be made between their offspring and the Descendants of an En­g lishman, with whom they never ­were to be Accounted Equal.” 40 He acknowledged this determination might seem severe to ­those “unacquainted with the Nature of Negros, and the Pride of a manumitted Slave.” A freeman, Gooch surmised, mistakenly “looks on himself imediately on his Acquiring his freedom to be as good a Man as the best of his Neighbours.” This supposed conceit was pronounced among ­those “descended of a white ­Father or M ­ other.” H ­ ere the lieutenant governor reveals that the cross-­class alliance does not move in both directions. Most mulattoes, he wrote, “are the Bastards of some of the worst of our imported Servants and Convicts.” Not only did he find disenfranchisement would discourage “that kind of Copulation.” It would also serve to “preserve a decent Distinction between them and their Betters.” His final rationale for denying the right to vote to freemen also gives us some insight into why West’s letter did not receive a response for eleven years: “­A fter all the number of ­Free Negros & Mulattos entitled to the Priviledge of voting at Elections is so inconsiderable that ’tis scarce worth while to take any Notice of them in this Par ­t ic­u ­lar.” Bradley  J. Nicholson aptly names the 1705 and 1723 laws “the police law of slavery.” 41 Through t­hese slave codes, ­Virginia’s General Assembly established a ­legal basis for racialized chattel slavery and the under­lying



Policing the Chesapeake

163

logic that would fuel policing in the eigh­teenth ­century. The police mandate took form before an ­organization dedicated to its fulfillment was established. V ­ irginia founded their first slave patrols four years a­ fter the 1723 law. With the benefit of hindsight, we can say that the development of a police ­organization lagged b­ ecause of the relatively small proportion of the population that was enslaved and the wide distribution of that population across space. At the time, colonial officials ­were satisfied that white citizens with the occasional aid of justices of the peace, constables, and the militia, could fulfill the police mandate. Policing Marginal Groups in Colonial ­Virginia As we saw in chapter 3, during the seventeenth ­century, ­Virginia lawmakers slowly developed ­legal and economic structures to accommodate a system of chattel slavery that would serve as the primary source of l­abor in the eigh­teenth ­century. Unlike Carolina, ­t here is no direct link to Barbados in colonial ­Virginia law.42 On the other hand, the settler elites ­were well aware of the practices of slaveholders in Barbados and the Spanish ­Caribbean, as they corresponded and traded with them and followed news from the West Indies.43 Barbados and V ­ irginia w ­ ere E ­ ngland’s largest and most profitable colonies in the Amer­i­cas, but their demographics, industries, and ­political structures differed substantially. Virginians’ connections with the Dutch w ­ ere well developed, as more than half the Africans enslaved in the Chesapeake before 1675 came from Dutch traders who marketed them to tobacco planters. ­T hose who profited most from intercolonial trade with the Dutch owned more than a quarter of the slaves in ­Virginia. ­These relations ­shaped the development of slavery in ­Virginia ­u ntil the eigh­teenth ­century, a­ fter which V ­ irginia was mostly influenced by the internal p­ olitical economy of the colony.44 The South Carolina slave pass laws ­were essentially imported from Barbados and focused almost entirely on Blacks traveling within the province in order to prevent gatherings and pilfering. The V ­ irginia pass system initially applied to indigenes and colonists leaving ­Virginia.45 The prob­lem of fleeing debtors and servants was of greater concern for the preservation of social order. ­European servants provided the bulk of bonded ­labor, as t­ here ­were only 150 Blacks in V ­ irginia in 1640, and t­ here w ­ ere fewer than a thousand ­a fter another two ­decades. Initial efforts at policing “targeted members of several marginal groups,” not as in South Carolina, where policing targeted Blacks specifically.46 To that effect, “­a fter 1642, travelers had to obtain a pass from the governor before they could depart, in order to prevent indentured servants or debtors from fleeing their obligations on the fastest outbound ship.” 47 Ship captains ­were prohibited from leaving port with travelers u ­ nless they had passes signed by the governor. To accommodate

164  B l a c k I n s u r r e c t i o n a n d Wh i t e C o u n t e r i n s u r g e n c y trade between natives and settlers, beginning in 1656, indigenes ­were issued passes to allow them to come and go without molestation.48 Unlike South Carolina, the militia was not involved in slave-­catching in the seventeenth ­century.49 This suggests the extent to which Virginians initially thought of the flight of their servants and slaves as a financial loss, as opposed to a threat to safety and security. Planters relied on citizens and constables to capture runaways, offering a small payment in tobacco for their return. In the ­m iddle of the ­century, requests for civilian voluntarism and moderate rewards for ­ those who captured fugitives ­ were not successful. Constables ­were likewise difficult to motivate. In 1669, the legislature “mandated a remarkable compensation system” that paid anyone who apprehended a servant without a pass a thousand pounds of tobacco.50 The reward proved too generous, and a­fter complaints of colonists nabbing slaves near their plantations to fraudulently claim the reward, the law was repealed. A pass system was not reintroduced ­u ntil 1680 in the Act for Preventing Negroes Insurrection. When the concern regarding runaways was with lost work, capture was the focus, and it was performed by private slave catchers or entrusted to constables to administer their capture. It was when the concern shifted to insurrection that at first the sheriff was to muster volunteers, and then the same task was passed to the militia. In 1682 the General Assembly used a carrot-­a nd-­stick approach, paying a reward to whites who caught fugitives and mandating punishment for any who refused to assist in their capture. Like South Carolina, as soon as ­there was a significant slave population in Virginia, fears of insurrection became ubiquitous. In 1705 lawmakers ­ responded with the passage of the first comprehensive slave code, fashioning a pass system to regulate the activities of the enslaved and granting the police power to white citizens. Despite the extension of the police mandate to whites, they ­were rarely vigilant in enforcing the new slave laws, worrying some planters and officials. C ­ olonel Spottswood, lieutenant governor of ­Virginia, wrote to the Lords Commissioners for Trade and Plantations in 1712 that “the Insurrections of our own Negros, and the Invasions of the Indians, are no less to be dreaded, while the ­People are so stupidly averse to the only means they have left to protect themselves against e­ ither of ­these Events.”51 In 1721 another lieutenant governor, Hugh Drydale, unsuccessfully urged “the next Assembly to make more severe laws for keeping their slaves in greater subjection.”52 Two years l­ater, he proposed that the ­House of Burgesses strengthen the militia against what he saw as inevitable “fatal Consequences.”53 Rather than buttress the militia, they assigned police duties to officers of the court and passed stricter laws against conspiracy, meetings of bondmen, and harboring fugitives.



Policing the Chesapeake

165

This legislative effort failed in practice. In 1727 the General Assembly passed a law directing the militia to police slaves, effectively founding ­Virginia’s first slave patrol more than two ­decades ­behind South Carolina. ­Because the slave population remained spread out, lawmakers ­were mainly concerned about “the unlawful concourse of negros, during the Christmas, Easter, and Whitsuntide holidays.”54 Militia commanders w ­ ere empowered to call upon as many white men as they thought necessary to break up any group of Blacks congregating while work was s­topped for the holidays. Anyone found at such meetings could be taken to a constable, who could administer corporal punishment, since the patrols ­were not yet granted the authority to punish Blacks on the spot. In response to rumors circulating among Blacks in 1729 that King George had emancipated the slaves and that their masters ­were holding them against his decree, several insurrection plots ­were made and groups of slaves fled to the mountains to establish maroon communities. The patrols ­were called in before the plans could play out, and leaders ­were rounded up and severely punished as examples. Patrols ­were ordered out on night ­r ides several nights a week. Witnessing the patrols uncovering and putting a stop to multiple rebellion plots motivated the legislature to reenact the 1727 patrol act in 1731, 1732, 1735, and 1738.55 The 1738 law expanded the power of militia commanders to require all whites to go to church armed with weapons, to inspect the residences of all Blacks, and to enter any place where Blacks and “disorderly persons” w ­ ere assembled.56 The revision also exempted patrollers from militia duties and all tax obligations. To this the legislature added in 1754 a provision to allow the district to compensate patrollers for time served—­rather than for each fugitive returned—­a nd required patrol captains to submit regular reports of police activities to the court. The optional regular payment and other incentives offered to patrollers in ­Virginia exceeded the benefits offered to ­t hose in South Carolina, who only regularly paid patrollers for a short time. With the 1754 revision, the V ­ irginia’s slave patrol system was fully formed, and it remained mostly unchanged u ­ ntil the Civil War.57 In 1776, Richmond County spent one-­third of its b­ udget paying its nineteen full-­ time patrollers. Even through the Civil War, the police w ­ ere the largest item in the county’s b­ udget. By comparison, in 1860, when Richmond had a so-­ called “modern police,” its department had only eight officers, and within a few years the department was disbanded. It was not reestablished u ­ ntil 1870. Sally Hadden provides three reasons why ­Virginia’s patrols ­were founded over a ­century ­a fter the colony was created. In 1680 slaves made up just over 7 ­percent of the total population of ­Virginia, and at the turn of the ­century, when 43 ­percent of the South Carolina population was enslaved, ­Virginia’s

166  B l a c k I n s u r r e c t i o n a n d Wh i t e C o u n t e r i n s u r g e n c y population was 72 ­percent white. A ­decade before founding their slave patrols, ­there ­were roughly 60,000 whites to inspect slave passes and other­w ise fulfill the police mandate, when t­here w ­ ere about 5,000 in South Carolina to control nearly 12,000 slaves. In addition to the proportion of slaves being smaller, they ­were also dispersed across the countryside.58 Fi­nally, South Carolina had cities, while ­Virginia did not—­a point that underscores the fact that not only ­were slave patrols “urban” at the outset, but their being in cities was a causal ­factor in their creation. Where ­There ­Were White Men, ­There ­Were Police Founded in 1632, ­Maryland was even slower than ­Virginia to develop a slave economy, but it was well ahead in establishing pre­ce­dent for the legalization of slavery. Beginning in 1639, servants held without a contract ­were permitted to be bound in­def­in itely, a remarkable ­legal priority given that ­there ­were ­little more than 500 total settlers. Legislation dealing with runaway servants was passed beginning in 1641, and t­hese laws served as “pre­ce­ dent for ­later slave control.”59 At that time, t­here w ­ ere but a c­ ouple of dozen Black slaves in ­Maryland. Over the course of the 1650s, the Black slave population increased from about 300 to just over 750, and slavery existed alongside limited-­term servitude. Between 1661 and 1664, a wave of legislation created a coherent system of racial slavery. With An Act Concerning Negroes & Other Slaves, passed in 1664, the Assembly determined that Black slaves would be held for life and all c­ hildren fathered by a slave would be likewise enslaved. Basing status on paternity corresponds with E ­ nglish common law but deviates from slave laws passed in other ­English colonies, which instead used a m ­ other’s status to determine ­whether a child would be enslaved. Aside from defining the terms of slavery, the 1660s saw legislation that clarified the police mandate and assigned the responsibility for its fulfillment. In 1661 An Acte for the Appoyntment of Certaine Officers was passed in order to ensure that the “hue and Crye be duely raysed & pursued against Murtherers Theeves and other fellons and fugitive Servants.” 60 Watchmen, ­others assigned with public duties, and private citizens w ­ ere instructed to raise an alarm upon noticing an unauthorized absence, and all able-­bodied white men ­were expected to assist. The policing of Blacks was made proactive with the development of a pass system in 1662, instigated by the Assembly’s law, titled An Acte Touching Runawayes, which stated that noe Servant ­shall Travayle aboue two Myles from his or her Masters . . . ​ howse without a pass Certifficatt or wryting from u ­ nder such their Masters . . . ​hand . . . ​a ll Inhabitants whatsoeuer of this Province by vertue of this Acte . . . ​a re impowred to Examine all Strangers and other suspicious psons e­ ither Servants or Freemen, that s­hall not shew sufficient



Policing the Chesapeake

167

Pass or Certificatt, or not knowne by Integrity or Comon fame to carry such persons before the next Justice of the peace further to examine them, and dispose as according to Lawe he s­ hall thinke fitt.61 By the end of the ­decade, ­there ­were nearly 1,200 Blacks in ­M aryland, requiring diligence on the part of the 12,000 whites to enforce the pass system. In 1695, with the Black population approaching 3,000, the Assembly passed An Act Restraining the Frequent Assembleing of Negroes within This Province, which addressed “the evil consequences attending the continual concourse of Negroes on Sabboth & holy days meeting in ­g reat numbers.” The law confronted the threat of rebellion and sought to prevent “conspireing & proposeing waies & means for the gaining of their liberty & freedom which must inevitably end in Insurrection to suppress which would occasion much bloodshed if not impossible ever to be effected, for the prevention of all which mischiefs & inconveniencies for the ­future.” 62 It did this by mandating that “no negro slave whatsoever s­hall presume at any time to travell to any place of meeting or resort or wander about from Plantation to Plantation.” The law gave absolute discretion to white citizens to detain any Blacks and to punish slaves as they saw fit, stating that “­every negro so travelling or wandering ­shall receive such corporall punishment as the person or persons finding such negro slave or slaves transgressing as afforesaid against the true intent & meaning of this act s­hall think fitt to impose, not extending to life or member or otherwaies disableing such negro from performing s­ ervice.” 63 Twenty years ­later, the Assembly reaffirmed the 1664 law determining all slaves would be held for life. It also disarmed all Blacks, slave and f­ree alike. T ­ hose found with weapons w ­ ere “to be carried before a justice of the peace, and be whipped.” T ­ hose who apprehended armed Blacks w ­ ere instructed to take and keep the weapons for themselves. A 1715 law was designed “for the better discovery of runaways” and expanded a 1704 pass law that applied to “any Person or Persons whatsoever within this Province, travelling out of the County where he, she or they ­shall reside or live.” 64 ­A fter 1715 ­those without a pass w ­ ere to be brought before a magistrate and fined. The law sought “for better encouragement of all persons to seize and take up such runaways.” T ­ hose who captured runaways w ­ ere to “receive two hundred pounds of Tobacco, to be paid by the ­O wner of such Runaway Servant Negro or slave, so Apprehended and taken up.” 65 Further, the law aimed to encourage “our neighboring Indians to Seize Apprehend or take up any Runaway Servants or Slaves, and bring them before a Magistrate.” 66 ­Those who did w ­ ere to “have a Matchcoat paid him or them, or the Value thereof.”

168  B l a c k I n s u r r e c t i o n a n d Wh i t e C o u n t e r i n s u r g e n c y In 1639 the General Assembly declared the lieutenant general would appoint constables and the chief justice would appoint a sheriff to “execute or cause or oversee the execution of all Writts and warrants to him directed” and “for the execution of all corporall corection shame or other punishment to be inflicted on the Body or pson of any one.” 67 ­Service was seen as a responsibility of all citizens and was assigned on rotation. ­T hose in ­these positions would be guided “by the law or Custome of E ­ ngland” and “­Shall in all ­things have the like power and authority.” 68 Constables throughout the colonies, as in E ­ ngland, collected tithes, supervised elections, inspected regulations governing t­hings like the storage of firewood, and w ­ ere other­ wise for all intents and purposes officers of the court. The constabulary was not professionalized u ­ ntil the nineteenth ­century, which happened slowly and with ­resistance.69 Typically, close attention to the normal duties of constables allowed for them to serve as an effective comparison against slave patrols, inviting us to see that the latter are more appropriately positioned in the evolution of policing, informing the activities that police engaged in from the origins of the institution ­u ntil ­today. In ­M aryland, however, the duties of constables eventually included policing slaves and supervising the citizens that they assembled on an ad hoc basis to police slaves. With about 13,000 Black slaves in ­Maryland, the Assembly passed a new slave law in 1723 that required all justices of the county courts to appoint their constables “to suppress the Assembling and tumultuous Meeting of Negroes and other Slaves.” 70 The constables w ­ ere “obliged to repair once a Month to all suspected places” in their districts with the intention to find “any Negroes or other Slaves, besides the Negroes or other Slaves belonging to the ­Owner of such place, not having a License ­u nder their ­Owner or Overseer’s Hand.” In such cases, the law required the constables “to whip ­every such Negro on the bare Back, at his Discretion, not exceeding Thirty-­ nine Stripes.” The constable was entitled to enroll “as many Persons as may be necessary to repair with him to such Places.” The law required “all White Persons (being F ­ ree) that s­hall be pre­sent” to “aid and assist such Constable, on Pain of forfeiting One Hundred Pounds of Tobacco.” 71 The law encouraged whites to report ­those who ­were derelict in their duty by paying ­informants fifty of the one hundred pounds of tobacco. Likewise, all Blacks and slaves ­were to “aid and assist the Constable in putting this Act in Execution, on pain of being Whipped each of them with Thirty-­Nine Stripes on the bare Back.” Sally Hadden finds ­there is “no evidence . . . ​to suggest that ­free blacks ever served in slave patrols in ­Virginia or in the Carolinas.” 72 As we see in M ­ aryland’s 1723 law, the colony mandated that Blacks participate in ad hoc policing. The 1723 law shows further peculiarities about the methods ­M aryland used to police Blacks. Rather than simply relying on the militia or splitting



Policing the Chesapeake

169

the militia into a dedicated slave patrol, M ­ aryland assigned officers of the court to form posses as needed. The ­M aryland slave codes gave the courts a central role in policing slaves. Rather than grant to constables the discretion to immediately issue punishments, they ­were to first bring Blacks before a justice of the peace so that he would impose the punishment. In addition to whipping runaways, justices of the peace would “cause of the Negro’s or other Slave’s Ears . . . ​to be cropt” if “at any Time that any Negro or other Slave s­hall Strike any White Person.” 73 The law did allow ­those recruited by and ­u nder the authority of the constable and in pursuit of runaways “to shoot, kill, and destroy such negro or negroes or other slave” if the fugitives “­shall refuse to surrender themselves, making ­resistance against such persons as pursue to apprehend and take them up.” Planters who “at any time discover any strange negro or other slaves upon any of their plantations” ­were ordered to warn them “to be gone home to their masters.” They ­were also given the sanction “to correct such negro by whipping, not exceeding thirty-­n ine lashes” if they refused or delayed leaving. In 1751 over 43,000 Blacks w ­ ere enslaved in M ­ aryland, and the Assembly enacted a supplement to the 1723 law, which mandated death in the event that “any slave or slaves s­hall at any time consult, advise, conspire or attempt to raise any insurrection.” 74 ­Those who “murder or poison any person or persons whatsoever,” “commit a rape upon any white ­woman, or . . . ​burn any ­house or ­houses” w ­ ere likewise guilty of a capital offense.75 To t­hese crimes, the Assembly added the death sentence for attempting to burn “any goods, merchandises, tobacco, Indian corn, or other grain or fodder.” The law further “indemnified from any prosecution” ­those who killed slaves who refused to surrender or other­w ise resisted “any officer or other person.” 76 Conclusion In V ­ irginia and M ­ aryland, white citizenship, Black slavery, and the police mandate w ­ ere created together and informed one another. While chapter 4 provided a look at the origin of ­t hese institutions in the police law of slavery, ­here we saw them put into motion. ­T hese institutions w ­ ere peculiar and new. They ­were also unreliable, though not nearly as tenuous as in New York, as the next chapter shows. For t­hese reasons, they could have been abandoned, becoming ­little more than a historical curiosity. Adam Malka opens the first chapter of his history of policing in Baltimore, The Men of Mobtown, with a laconic observation: “Before t­here ­were policemen and penitentiaries, ­there ­were white men.” 77 As we have seen with colonial ­Virginia and M ­ aryland, the moment ­there ­were white men, ­there ­were police. Picking up the history of policing in ­M aryland with the incorporation of Baltimore in 1796, Malka’s history of police in the city should be seen as a story of the continued development of institutions detailed

170  B l a c k I n s u r r e c t i o n a n d Wh i t e C o u n t e r i n s u r g e n c y in this chapter. ­Popular policing, which was designed to control slaves and produce security against the threat of Black insurrection, continued through the eigh­teenth ­century and onward. Malka observes that in the early nineteenth ­century, white male citizens of Baltimore w ­ ere largely responsible for policing the city, only supplemented by a few officials. “Even if state-­sanctioned officers controlled some aspects of criminal justice,” Malka notes, “white men’s ­popular policing was official policing too.” 78 Policing “was above all a practice by which white men affirmed their p­ olitical inclusion.” 79 This likewise describes the colonies of the Chesapeake region in the ­century leading up to the earliest period surveyed in Malka’s text. Before the slave patrols w ­ ere founded in V ­ irginia, and before the constabulary was assigned the duty to police slaves in ­Maryland, white citizens ­were the police of the colony. They remained so afterward. Malka’s work suggests this pattern was maintained beyond the period considered in the pre­sent volume, showing that an enduring link between whiteness and police that originated in the late seventeenth ­century persisted beyond the colonial era.

C hap te r 8

Enemies of Their Own House­holds

In colonial New York, efforts to control enslaved Blacks ­ ere comparable to ­those of the South.1 Regardless of ­whether specifically w designated slave patrols existed, the militia was used throughout the ­English colonies to maintain control over enslaved populations. “­Every American colony except Pennsylvania o ­ rganized a militia system during the seventeenth ­ century,” police historian Martin Alan Greenberg notes, which “generally consisted of all ­free adult white males.” 2 White ­English subjects possessed racially exclusive privileges, including assurances that they could not be enslaved, that their white ­children would not be enslaved by default, and that they could not be killed by any white person for ­simple acts of disobedience. ­These rights came with responsibilities, including compulsory militia duties, which gave lowly whites an opportunity to demonstrate their allegiance. Militia s­ervice enrolled poor whites in the colonial proj­ect, which effectively meant participation in the production of security, fostering white racial solidarity, and thereby diminishing the class antagonisms that w ­ ere characteristic of the era. Early in the development of the militia, the institution moved “away from the provision of external defense,” responding to “the need to provide internal protection for Amer­i­ca’s center of commerce.”3 This was especially the case in seaport cities like New York, with their crowded, mobile populations. The “changing role of the militia,” Greenberg finds, meant that they w ­ ere “directly connected with the provision of police ­ services.” 4 Like their southern counter­parts, New York’s laws identified Black p­ eople as threats to security and assigned responsibility for regulating them to all whites, w ­ hether through their compulsory ­service in the militia or through legally mandated duties to proactively stop suspicious Blacks and to join posses when summoned. Unlike their southern counter­parts, however, New York never developed dedicated slave patrols to take on this role, despite their fears of insurrection being realized in rebellions that ­were costly in lives and property. Police historians generally invite confusion by speaking of “the watch” as a distinct o ­ rganization separate from the militia. In most colonies, the duties of the town watch ­were ­organized and performed by the militia. In 171

172  B l a c k I n s u r r e c t i o n a n d Wh i t e C o u n t e r i n s u r g e n c y towns with slave patrols, they worked in parallel with the militia. Where dedicated slave patrol o ­ rganizations ­were absent, the militias ­were no less charged with the principal preventive police duties that ­were elsewhere assigned to the patrols, including breaking up gatherings where slaves ­were pre­sent, searching slave quarters for weapons, and patrolling workplaces and markets where slaves labored. Where prevention failed, the militia responded to revolts. Thus, the distinction between “watch” and “militia” is not substantive in the history of the evolution of police in the E ­ nglish colonies. It was the militia that responded to the Stono Rebellion in South Carolina in 1739 and to the slave revolts in New York City in 1712 and 1741. This chapter examines the roles played by race and police power in the context of ­these New York slave rebellions. The purpose is not to simply recount the details of the rebellions and the prosecutions of implicated parties, as t­ here are many available accounts, many cited h ­ ere. Aside from providing such information, however, ­those studies can illuminate how race functioned—­a nd did not function—to produce social order, and how the police law of slavery mobilized—­a nd did not mobilize—­white citizens to defend that order. In New York City during the first half of the eigh­teenth ­century, a weak police power and the precarity of race in New York collided to make uprisings destructive, both materially to property and lives, and to the settlers’ conceptions of security. Cultural impediments to white solidarity and economic and social f­actors that fostered class solidarity made the city particularly vulnerable to rebellion. Whites ­were not reliably united in a common cause of any sort, the cross-­class alliance was fragile, and interracial socialization, crime, and conspiracy ­were common, all of which contributed to the fomenting and destructiveness of two of the most momentous slave rebellions in the pre-­Revolutionary period. S lave Law and R ac e R e lati on s at the Turn of the C ­ e ntury The Royal African Com­pany’s strategy of selling enslaved Africans in large quantity at fixed prices was suited to plantation production, but initially failed in New York. From 1664 to 1737, the com­pany only managed to sell 2,031 slaves in Manhattan.5 Though slaves w ­ ere not entering the colony by the boatload, nevertheless, a steady if ­limited stream of enslaved Black workers entered the colony. In the first d­ ecade of the seventeenth ­century, the Black population increased nearly 25 ­percent, compared to less than 12 ­percent for whites. Though already cemented in practice, in 1706 the colonial legislature passed a law declaring that “Negroes only s­hall be slaves,” codifying racial slavery.6 A series of harsh slave laws followed, particularly ­a fter a Black slave killed his master and his f­amily in 1708.



Enemies of Their Own House­holds

173

The next ­decade, the population surged to nearly 37,000, with the Black population more than doubling, while the white population increased by a comparably lower 65 ­percent. Such significant growth in slaveholdings would have seemed alarming from the perspective of New Yorkers. By comparison, the growth of the slave populations in the Carolinas in ­these ­decades was far greater, with the number of slaves tripling from 1710 to 1720. Even more worrisome for South Carolinians was that the colony had less than half of New York’s population, but 70 ­percent ­were enslaved. In the following d­ ecade, the slave population increased in the m ­ iddle colonies and the South; however, it only outpaced that of whites in North Carolina, where the rate of population growth of enslaved Africans surged well ahead of that of whites for most of the ­century. This pattern speaks more to the economic successes of E ­ ngland’s mainland colonies, generally, where the total population increased each ­decade by roughly 30 to 45 ­percent. That success depended entirely on the ­labor power of enslaved Blacks and the more effective exploitation of their l­abor by the nascent cap­i­tal­ist class. Urban slavery expanded in the port cities like New York City, and so too did the pattern of owner­ship. Nearly e­ very member of the ruling class held slaves, and slaveholdings ­were common among “the middling sort as well.” 7 Though ­people of African descent made up around 20 ­percent of the total population, they accounted for 30 ­percent of the city’s workers.8 Slaves provided ­labor in nearly ­every trade in the city, which prompted some white workers to ­organize against Blacks, attempting to create racially exclusive access to skilled professions. Colonial officials played on the antagonisms among workers, particularly through what Thelma W ­ ills Foote calls “reterritorializing En­g lishness,” which entailed “minimizing the articulated antagonisms of linguistic, confessional, natal, and social differences among the settlers while, at the same time, forging a shared sense of belonging to the ­English nation from the real and imaginary affinities between colonial Netherlanders, German-­speaking immigrants, French Protestants, and British mi­g rants.”9 Leveling the cultural differences among the European-­descended settlers, Foote acknowledges, was “the most difficult task confronting the ­English rulers.”10 The ships, docks, and taverns of this factory port “­were places where E ­ nglish, Irish, African, Native American, and West Indian persons could meet and explore their common interests.”11 As much as the colony relied on the enslaved, Linebaugh and Rediker observe that “the growth of the cities, and especially of their maritime sector, depended upon a mass of desperate but necessarily creative proletarians being forced to work for wages in order to keep body and soul together.”12 ­These workers w ­ ere usually single, itinerant workers without an attachment to a church, and so had few social influences restraining them from

174  B l a c k I n s u r r e c t i o n a n d Wh i t e C o u n t e r i n s u r g e n c y illicit economic activity to improve their condition.13 Though working-­ class whites ­were keen to play on their l­egal and social advantages relative to their enslaved counter­parts, they w ­ ere just as inclined to socialize—­and engage in subversive and illegal activities—­w ith them. As Ira Berlin notes, “members of the lower ­orders found their fraternization profitable.”14 ­There was ­little the authorities could do “to circumvent the flow of subversive experience, for a port city was hard to police.”15 Several waterfront dram shops anchored a black market in stolen goods. Tavern keepers encouraged interracial gangs of thieves by operating as pawnbrokers. The cooperative work in the port, ­whether for their employers or against them, “created dangerously insurrectionary connections,”16 which w ­ ere realized in “periodic upheavals that peeled away the patina concealing interracial plebian activities.”17 ­These relationships also led to momentous events that inspired fears among the ruling class that lasted ­decades. New York authorities eventually blamed tavern o ­ wners for the insurrections in 1712 and 1741, on the ground that they “not only confederated with black men and ­women but ­were also ‘the first movers and seducers of the slaves.’ ”18 Re sponse to the G ­ reat A mbuscade of 1712 The governor and Com­pany of Adventurers of London Trading to Guynney and Binney established Fort Cormantin on the Gold Coast of Africa beginning in 1638, ­a fter a turncoat from the Dutch West India Com­ pany negotiated exclusive trading rights with the chief of the Fanti state. When the Royal Africa Com­pany was founded, it took owner­ship of the fort, but held it for all of four years before the Dutch captured it in 1665, renaming it Fort Amsterdam. The ­English name for the fort is nonetheless lodged in the history of slavery for providing the origin for the name Coromantee, given to enslaved Akan-­speaking ­people, who “trained the men in their communities in the conduct of guerrilla warfare.”19 Once sold into slavery, so-­called Coromantees became renowned for their hard work and for applying their military training in slave revolts in Jamaica, St.  John’s, Antigua, Guyana, Barbados, and New York City. The first major slave revolt involving Coromantees in New York City was hatched during the night of March 25, 1712, when a group of slaves met in response to recent physical abuses at the hands of their masters. Taking a blood oath of solidarity, they pledged to meet in an orchard near the center of the city and proceed to burn down the city and, in the words of Governor Robert Hunter, “to destroy as many of the inhabitants as they could.” 20 Arson was a preferred tactic of slave rebels throughout the Amer­i­cas, and was especially effective in cities like New York, filled with closely built, wood-­f ramed structures. 21 Barns ­were filled with dry hay and ware­houses with alcohol and gunpowder.22



Enemies of Their Own House­holds

175

­ fter midnight on April  6, as many as fifty Black men and ­women, A including many Akan-­speaking slaves, gathered, armed with guns, blades, and hatchets. A man enslaved by Peter Vantilborough set fire to a shed and joined the group where they remained concealed and ready to ambush whites who came to put out the flames. The famous bucket brigades, founded in 1731, w ­ ere not yet o ­ rganized, but the fire was soon the least of their concerns. Jill Lepore describes the mayhem that ensued: “Adrian Hoghlandt’s slave Robin stabbed him in the back. Nicholas Roo­se­velt’s slave Tom shot Andries Beekman in the chest. Peter the Porter, owned by Andries Marschalk, killed young Joris Marshalk with a dagger blow to his breast. Before the butchery ended, nine whites had been killed and six more wounded.” 23 Unlike the Stono Rebellion in South Carolina, where other enslaved Blacks joined the ranks of the rebels who plotted the uprising, none came to join this uprising. 24 Governor Hunter explained that “the noise of the guns gave the alarm” and “upon the first notice, which was very soon ­after the mischief was begun, I order’d a detachment from the fort ­u nder a proper officer to march against them.” 25 The rebels fled, but ­because many of them ­were recent arrivals to the city, fleeing to the woods provided the only option of escape.26 The following morning Hunter ordered sentries from the New York and West Chester militias to sweep the island. According to Hunter, “we found all that put the design in execution, six of ­these having first laid violent hands upon themselves.”27 Lepore notes that New York residents ­were convinced that the militia was all that prevented the city from being “reduced to ashes, and the greatest part of the inhabitants murdered.” 28 In the course of the investigation into the conspiracy, as many as seventy Blacks ­were arrested.29 ­Eighteen of the accused ­were tried and sentenced to death by the end of May.30 The remaining cases w ­ ere heard by the Supreme Court beginning in June. In total, forty-­three w ­ ere tried before a jury.31 By June 23, Governor Hunter reported to the Lords Commissioners for Trade and Plantations that twenty-­seven ­were condemned, six by their own hand, and  “one being a w ­ oman with child, h ­ere execution by that means suspended.”32 Twenty of ­those convicted ­were hanged and three ­were burned at the stake.33 The court convicted Nicholas Roo­se­velt’s slave Tom in the killing of Andies Beekman, for which he was burned over a slow fire.34 Hunter added that o ­ thers ­were “handed, one broke on the wheel, and one hung alive in chains in the town, so that ­there has been the most exemplary punishment inflicted that could be possibly thought of.”35 Hunter complained in his report about the excessive punishment, both in terms of the number of ­those killed and the brutality of the executions. In the West Indies, “where their laws against their slaves are most severe,” Hunter emphasized that “in case of a conspiracy in which many are engaged a few only are executed for an example.”36

176  B l a c k I n s u r r e c t i o n a n d Wh i t e C o u n t e r i n s u r g e n c y Hunter, ­after all, blamed the harsh treatment of slaves by their masters and by the colony’s laws for the uprising. The rebels, he wrote, “had resolved to revenge themselves, for some hard usage they apprehended to have received from their masters.”37 Leslie Harris points out that the “slaves’ lack of privileges was not the only spark to rebellion,” as some who “considered themselves unfairly enslaved also participated in the revolt.”38 Hunter reported to the Lords Commissioners, writing One Husea belonging to Mrs.  Wenham, and one John belonging Mr.  Vantilbourgh and convicted, ­these two are prisoners taken in a Spanish prize this war and brought into this Port by a Privateer, about six or seven years agoe and by reason of their colour which is swarthy, they w ­ ere said to be slaves and as such w ­ ere sold, among many o ­ thers of the same colour and country, t­hese two I have likewise reprieved till Her Majesties ­pleasure be signified. Soon ­a fter my arrival in this government I received petitions from several of ­these Spanish Indians as they are called ­here, representing to me that they ­were f­ree men subjects to the King of Spain, but sold ­here as slaves, I secretly pittyed their condition but haveing no other evidence of w t they asserted then their own words, I had it not in my power to releive them. 39 For ­t hese “Spanish Negroes” rebellion was a means of exacting revenge and gaining their freedom.40 The Coromantees likewise considered themselves “unfairly enslaved,” not b­ ecause of the fact of their enslavement alone, but b­ ecause the form of slavery practiced in the colony was out of step with the form of slavery common in their native communities. Looking at the events from within their own context, in a world where slavery was nearly ubiquitous, where many of the enslaved ­were accustomed to living in socie­ties with slaves prior to being stolen away from Africa, Harris notes that it was not slavery, per se, that the rebels resisted, but the mode of chattel slavery practiced by the ­English. They did not expect freedom, but they did have “dif­fer­ent expectations of slavery than did the British,” b­ ecause “slavery in Africa entailed more rights and privileges than accorded to slaves in British North Amer­i­ca.” 41 Harris elaborates: In the Akan-­A sante society from which ­these slaves came, slaves or their ­children could eventually be absorbed into the community as equals. Masters rewarded faithful slaves with the opportunity to inherit land and to work for themselves. Not ­every slave experienced such privileges, but the possibility of such rewards eased the condition of slavery t­here. ­Under slavery in British New York City, only a very few of the more acculturated slaves would have been eligible for any privileges. And for



Enemies of Their Own House­holds

177

slaves generally, acculturated or not, t­ here ­were fewer privileges in New York than in Africa. New York’s slaves had l­ittle hope of escaping slavery or of being incorporated into the community as equals.42 The Coromantees had before their eyes a similar model of slavery in the system of indentured servitude, where E ­ uropeans worked for a period of years before being freed, thereby receiving all the rights of f­ree ­English subjects and often acquiring property. Harris notes that as life expectancy improved for ­European indentured servants, and so more survived their indentures, prior similarities between white and Black bonded workers diminished. White servants w ­ ere no longer likely to be worked to an early death. Their bondage was temporary, while it was permanent for Blacks. For slaves, “the New York colony legally could not be a place of opportunity or upward mobility.” 43 Not only did Hunter complain to the Lords Commissioners of the overzealous punishment of alleged conspirators. Months ­later, when the Assembly passed An Act for Preventing Suppressing and Punishing the Conspiracy and Insurrection of Negroes and Other Slaves, despite being “mitigated in its severities” by the Governor’s Council’s amendments, Hunter admitted “your Lordships w ­ ill still think” the law “too severe, but a­ fter the late barbarous attempt of some of their slaves nothing less could please the ­people.” 44 The law was comprehensive and mirrored the slave codes of ­England’s southern and West Indian colonies. The text of the act contains expressions of the Assembly’s rationale for such a severe law, referencing the “daily increase” of “the Number of Slaves in the Cities of New York and Albany, and also within the several Countys, Towns and Mannors within this Province,” and “that they have been found oftentimes guilty of confederating together, in ­r unning away, or other ill practices.” 45 The law forbade all trade with the enslaved, and required that “No person or persons whatsoever Do hereby imploy, harbour, conceal, or entertain other Men’s Slaves at their ­House, Out­house or Plantation without the Consent of their Master or Mistress ­either signify’d to them verbally or by Certificate in Writing.” 46 The act noted that “­there are many Negroes, Indians or Mallattos, who have been formerly manumitted and made ­free within this Colony by their Masters or o ­ wners, and it is found by Experience, that they entertain, harbour, support and encourage Negro, Indian, and Mallatto Slaves, to the ­g reat detriment of the Masters of such Slaves, and of other Her Majesty’s liege Subjects within the said Colony.” 47 For infringement of the law, their punishment was to be double that of a white person d­ oing the same. Deprived of the right to meet in private, the enslaved ­were likewise prevented from meeting in public. The act made it unlawful “for above Three Slaves to meet together at any other Time nor at any other

178  B l a c k I n s u r r e c t i o n a n d Wh i t e C o u n t e r i n s u r g e n c y place than when it s­hall happen they meet in some servile Employment for their Masters or Mistresses profit, or by their Masters or Mistresses Consent, upon penalty of being whipt upon the naked back, at the Discretion of any Justice of the Peace, not exceeding forty lashes.” 48 Possession of “any Gun or Pistol” would result in “being whipt . . . ​not exceeding twenty lashes on the bare back for ­every such Offence.” 49 Should slaves “presume to assault or strike any Freeman or ­Woman, professing Chris­ tian­ity,” they would face any “corporal punishment (not extending life or limb)” to be determined by the court.50 Should they “murder or other­w ise kill, ­unless by misadventure or in Execution of Justice, or conspire or attempt the Death of any of Her Majesty’s liege ­people, not being Slaves, or  ­shall committ or attempt any rape on any of the said Subjects, or ­shall willfully burn any dwelling-­house, barn, stable, out-­house, stakes of Corn or Hay, or ­shall willfully mutilate, mayhem or dismember any of the said Subjects, not being Slaves as aforesaid, or ­shall willfully murder any Negro, Indian or Mallatto Slave within this Colony, and s­ hall thereof be convicted,” they ­were to “suffer the pains of Death in such manner and with such circumstances as the aggravation or enormity of their Crimes.”51 The law extended rights to slave ­owners to punish slaves at their discretion, “not extending Life or Member,” but severely restricted their ability to f­ ree any of their slaves. Claiming “the f­ree Negroes of this Colony are an Idle slothfull ­people and prove very often a charge on the place where they are,” the Assembly determined that “any Master or Mistress, manumitting and setting at Liberty any Negro, Indian or Malatto Slave, ­shall enter into sufficient Security unto her Majesty her heirs and Successors with two Sureties not less than the Sum of Two hundred pounds, to pay Yearly and ­every Year to such Negro Indian or Mallatto Slave during their Lives the Sum of Twenty Pounds lawfull money of this Colony.”52 Jill Lepore comments that “such a sizable financial penalty made manumissions effectively impossible.”53 The act ensured that the few who managed to be freed could not “enjoy, hold or possess any ­Houses, Lands, Tenements or Hereditaments within this Colony, but the same s­hall Escheat to Her Majesty Her Heirs and Successors,” meaning that any property willed to a freedman would be seized by the state.54 To the Assembly’s use of law “against the broad possibility of slave insurrection,” Lepore contrasts the city’s Common Council, which “was more concerned with everyday opportunities for conspiring.”55 In February 1713, the Council forbade “slaves above the Age of fourteen years from ­going in the Streets of this City ­a fter night without A Lanthorn or A lighted Candle” and granted the mayor, recorder, and any alderman to commit ­t hose who infringed upon this law to jail u ­ ntil the slave’s ­owner paid a fine of eight shillings to “the Person or persons that ­shall Apprehend any such



Enemies of Their Own House­holds

179

Negro or Indian slaves.”56 Implied in this law is the extension of the police power to all whites to enforce it. Weeks ­later, the Council passed a more restrictive law to prevent slaves above the Age of fourteen Years . . . ​to be or Appear in any of the Streets of this City on the south side of the Fresh ­water in the Night time above an hour a­ fter sun sett, And that if any such Negro or Indian slave or slaves as Aforesaid S­ hall be found in any of the Streets of this City within the Stockadoes or Fortifications or in any Other place on the south side of the fresh w ­ ater in the Night time above one hours ­a fter sun sett without A Lanthorn and lighted Candle in itt as Aforesaid so as the light thereof may be plainly seen.57 This time, the Common Council was more direct in issuing the police mandate to whites, declaring that “it ­Shall and may be lawfull for any of her Majesties Subjects within the said City to Apprehend such slave or slaves,” to “Carry him her or them before the Mayor or Recorder of any one of the Aldermen of the said City,” who w ­ ere authorized “to Committ such slave 58 or slaves to the Common Gaol.” ­T here they ­were to remain ­u ntil their ­owners “pay to the person or persons who Apprehended and Convicted such slave or slaves the sum of Eight Shillings Current Money of New York for his or their pains and trou­ble.”59 Each slave, “before he or they be discharged ­shall be whipped at the publick whipping post forty lashes save one if desired by the master or ­O wner of such slave or slaves.” 60 Lepore remarks that the Council “passed all ­these laws, of course, ­because slaves did walk through the city at night, even without lanterns or candle,” and moreover b­ ecause “New Yorkers had good cause to worry about slave revolts.” 61 ­These laws, she comments, serve as “a brutal testament to the difficulty of enslaving h ­ uman beings, especially in cities. New York’s slave codes ­were almost entirely concerned with curtailing the ability of enslaved ­people to move at w ­ ill, and to gather, for fear that they might decide, especially when drunk, that slavery was not to be borne and one way to end it would be to burn the city down.” 62 During the early eigh­teenth ­century, colonists ­were prone to paranoid fascination with conspiracy. “Nearly every­one, and enlightened, reasonable ­people most of all, spotted plotters lurking ­behind nearly ­every shadow, and arsonists in the flicker of almost ­every flame.” 63 In addition to persisting slave unrest and infrequent uprisings, ­there ­were the occasional rebellions by settlers “who challenged or usurped the authority of royally appointed governors,” as with Bacon’s Rebellion in 1675 ­Virginia and Leisler’s Rebellion in 1690 New York City.64 “In an empire acquired by conquest and built by slaves,” Lepore concludes, “­English colonists in the New World had the unnerving and unrelenting

180  B l a c k I n s u r r e c t i o n a n d Wh i t e C o u n t e r i n s u r g e n c y impression that they w ­ ere being watched, and despised, always, and that plots ­were forever being hatched against them, plots of arson and murder and revolution. Worse even than this consuming fear was the suspicion, only rarely voiced, that the plotters might have right on their side.” 65 One of ­t hese rare voices was Governor Robert Hunter. As he had reported to the Lords Commissioners years ­earlier, in 1715 he again remarked that lawmakers w ­ ere being hasty in regulating slaves. The limitations on manumission ­were particularly troubling to him, not b­ ecause he was apol­o­getic over slavery, but simply b­ ecause he felt other officials w ­ ere inviting further rebellion. By “cutting off all hopes from t­hose slaves who by a faithful and dilligent discharge of their duty, may at last look for the reward of a manumission,” the law ensured this hopelessness would “make ’em not only careless servants, but excite ’em to insurrections more bloody than any they have yet attempted, seeing that by that Act death is made more eligible than life, for the longer they live the longer they are slaves.” 66 Gerald Horne comments that the 1712 rebellion delivered a message to the colonists “that it did not require an African majority . . . ​for this dark-­skinned population to wreak havoc” and that “delivering more African ­labor designed to propel the mainland economy, also had delivered perils in a broad swath of territory.” 67 Governor Hunter certainly received this message. Expanding Citi z e nshi p and S lave ry Thelma ­Wills Foote finds that ­England’s colonial proj­ect in New York hinged on their efforts to “reterritorialize En­g lishness,” which “involved the extension of ­English rights to the mainly foreign-­born Protestant settler population, the incorporation of ­t hese ­peoples into the ­political community of loyal ­English subjects, and the transplantation of legitimating institutions of ­E nglish culture for the cultivation of E ­ nglish civilities in the settlers.”  6 8 A most significant ­legal adaptation occurred in 1715, when lawmakers declared that “all and e­ very Such person or persons of what Forreign Nations Soever they be, Professing Chris­t ian­ity, and that now are actuall Inhabitants within this Province, and have taken or Subscribed or that s­hall take or Subscribe to the Oath of Alliegiance, are and ­Shall be hereby Naturalized, and in all Re­spects be accounted and esteemed as his Majesties Naturall Born Subiects, and ­shall have and enjoy all Such Privileges, ffreedoms and Immunities within this Province, as other his Majesties Subjects do, have and enjoy.” 69 The act was retroactive, applying to deceased former inhabitants. It was not, crucially, “to be construed to discharge or Set at Liberty any Servant, Bondman or Slave.” 70 The first ­decades of the eigh­teenth ­century marked a time when indentured servitude was effectively replaced by chattel slavery. From 1715 to 1717, four hundred enslaved East Africans disembarked in New York, ­a fter



Enemies of Their Own House­holds

181

the East India Com­pany opened its trade to private slave traffickers.71 By 1720, New York’s population was just shy of 37,000, 5,740 of them Black. At this time t­here ­were 12,499 Blacks in M ­ aryland and 26,550 in V ­ irginia. New Jersey was New York’s closest northern rival, with a population of 2,385 Blacks that year. Over the course of the 1720s and 1730s, the Royal African Com­pany was responsible for the importation of 70 ­percent of the more than 200 slaves brought to New York. This share came directly from the West Indies, “as payment from West Indian merchants for provisions they had purchased from New York merchants.” 72 By the end of the 1730s, trade was increasing in the port, demanding a further need for unskilled ­labor, just as wars in E ­ urope disrupted immigration. Merchants who could no longer accept “a handful of slaves on consignment” now needed them by the shipload, “transforming the trade-­in-­persons from an incidental adjunct of the ongoing system of exchange to a systematic enterprise in and of itself.” 73 As a result, between 1732 and 1754, over one-­third of immigrants who arrived in New York ­were slaves.74 The laws passed in the wake of the 1712 uprising magnified the differences between white indentured servants and Black slaves, especially laws that discouraged the manumission of Blacks. As Harris notes, “­these laws tied distinctions between black and white workers even more strongly to slavery and freedom, ­dependency and self-­sufficiency. Slave masters saw ­these racial and status distinctions as a means to keep control over their slaves and thus encouraged the growing division between white and black workers. White workers saw such distinctions as preserving their own access to wage work and to land, at the expense of slaves and ­free blacks.” 75 Though the increased importation of slaves was prompted by a need for unskilled ­labor, it did not stall the drift of Black workers into the skilled trades. White skilled workers complained of “the pernicious custom of breeding slaves to trades whereby the honest and industrious tradesmen [are] reduced to poverty for want of employ.” 76 In rural areas, Ira Berlin observes “the new reliance on slavery did not create plantations nor inaugurate a system of gang ­labor. Slave workers in the agricultural North remained jacks-­of-­a ll-­t rades, engaging in all aspects of the northern agricultural regimen. They continued to ­labor in small groups in which indentured servants and wage workers, black and white, had a substantial presence. Their importance grew from the force of numbers, not from a change in kind—at least for slave men.” 77 In the cities, the demographics of the slave population changed. Black men ­were favored, demonstrating that production was moving away from a domestic mode and ­toward a commercial mode.78 As trade increased, capital was becoming more concentrated. In the 1730s, the wealthiest 10 ­percent of New Yorkers included on the tax rolls

182  B l a c k I n s u r r e c t i o n a n d Wh i t e C o u n t e r i n s u r g e n c y owned 39 ­percent of taxable property, and the bottom 30 ­percent of taxpayers owned 7 ­percent. Lepore emphasizes that “­these figures ­don’t count ­house­holds too poor to be included on the tax rolls, nor do they include slaves, who owned less than nothing.” 79 The city’s growth in t­ hese ­decades was remarkable relative to its own history, but “compared to London, New York was no city at all.”80 London had a population of 840,000 and over 100,000 ­houses, whereas New York had only 10,000 ­people living in 1,500 homes. To New York’s population of 2,000 Blacks, London had 15,000, yet accounting for only a fraction of the total population.81 By this point, “New Yorkers thought themselves engulfed in a rising tide of crime and disorder,” and that “foreigners and Negroes ­were responsible.”82 Crime rec­ords indicate that nearly two-­t hirds of crimes committed by slaves ­were against their holders.83 Whites ­were less concerned with individual criminal acts than they w ­ ere with slave revolt, and this is reflected in the colony’s legislative priorities. In 1730 Governor John Montgomerie felt the courts w ­ ere over­burdened by an ad hoc approach to anti-­conspiracy law that produced both redundancy and confusion. He “recommended that all such acts be repealed and replaced with a simpler law, on the grounds that it would be better if magistrates had ‘a plain rule to walk by.’ ”84 A 1730 comprehensive slave code, named An Act for the More Effectual Preventing and Punishing the Conspiracy and Insurrection of Negro and Other Slaves, repealed slave laws from 1702, 1708, 1712, and 1717 and compiled the harshest versions of prior piecemeal laws into one. The law extended the discretion to slave o ­ wners to penalize ­those they enslaved as they saw fit, “up to life and limb.”85 In the event that “any Slave ­Shall presume to Assault or Strike any Christian or Jew,” the law granted authority to any two justices of the peace “to Committ Such Slave or Slaves to Prison not Exceeding fourteen days for one fact and to inflict Such other Corporal Punishment not Extending to Life or Limb.”86 The first article claimed “Many Mischiefs have been Occasioned by the too ­g reat Liberty allowed to Negro and other Slaves,” and forbade all “trade or Traffick with any Slave or Slaves” without their master’s permission.87 Lieutenant Governor Clark argued that trade with slaves promoted “an habit of idleness, that may in time prove ruinous to the ­whole Province if not prevented.”88 The act further specified that “All Contracts and Bargains made with any Slave or Slaves s­hall be utterly void.”89 No one was permitted to “sell any rum or other strong Liquor to any Negro Indian or Mulato Slave or Slaves or s­ hall buy or take in pawn from them any wares Merchandises apparrel Tools Instruments or any Kind of goods w ­ hatever.” 90 ­These components of the slave code ­were remarkably prophetic of the conspiracy that was allegedly hatched a ­decade ­later in a waterfront tavern owned by John Hughson.



Enemies of Their Own House­holds

183

The following year, New York passed A Law for the Better Preventing of Fire, allocating funds to purchase two fire engines, and a law to found a bucket brigade. The law required “anyone who owned a h ­ ouse with one or two chimneys . . . ​to hang a three-­g allon leather bucket just by the front door, labeled with the ­owner’s name; h ­ ouses with three or more chimneys needed two buckets, bakeries three, breweries six. When a fire alarm was sounded, t­ hese buckets ­were to be thrown into the street, to be picked up by the fastest runners and carried to the scene of the fire, where two lines ­were formed: one to pass full buckets from a pump, or the river, to the fire, and one to pass the empty buckets back.” 91 The threat of fire extended well beyond that posed by slave conspiracies, but New York inhabitants lived with the memory of 1712 and the occasional rumors of plots that left them racked with fear. The use of buckets in New York invites a ­bitter comparison with Barbados, where buckets of boiling ­water w ­ ere always at the ready to “throw down upon the naked bodies of the Negroes, scalding hot” as “a defence against their underminings.” 92 The bucket brigades played a crucial role in maintaining the safety of New York’s inhabitants, but they would be stressed beyond their limit a ­decade a­ fter their founding, when a wave of eleven fires in the spring of 1741, believed to be the work of slaves and their white coconspirators, monopolized the consciousness of e­ very inhabitant for months. “A C onfe de rac y of Late nt E nemie s Among st U s” Beginning on March 18, 1741, and extending for more than two weeks, nearly a dozen fires in New York ­were attributed by colonial officials to be the work of slave rebels and white coconspirators.93 The events shook the city to its core. It was obvious to all inhabitants that the state was incapable of preventing acts of ­organized slave r­esistance. Perhaps just as troubling, particularly for the ruling elite, was that it was equally evident that race was failing to provide a reliable wedge to drive apart the working class. From 1741 ­u ntil ­today, ­there has been no consensus about the conspiracy alleged to have caused this spate of fires. Enough contemporaries in New York w ­ ere unconvinced ­t here was a plot that Justice Daniel Horsmanden, charged with investigating the events, was frequently exasperated over the indifference among the city’s inhabitants. Some historians ­today remain skeptical about the evidence. Establishing ­whether t­ here was a plot hatched at John Hughson’s tavern, or accounting for the burning of Fort George on March 18, detailing the c­ auses of the four fires on April 6, and the several between them, are not of primary concern.94 Other scholars have done the work of uncovering the particulars and have told some magnificent stories about ­t hese momentous events.95 Instead, this section is intended to address

184  B l a c k I n s u r r e c t i o n a n d Wh i t e C o u n t e r i n s u r g e n c y the ­causes of rebellion in 1741, the ­factors that would have made the alleged conspiracy pos­si­ble, and the ­political work performed by the prosecution of the accused conspirators. More specifically, it ­w ill show that a conspiracy was made pos­si­ble ­because white identity failed to work as it was intended to by the colonial officials who w ­ ere invested in reterritorializing En­g lishness. Further, it w ­ ill additionally demonstrate that the prosecution was used to condemn whites who would associate with Blacks and to build white solidarity as a fundamental requirement for social security. At the core of the events of 1741 are what Ira Berlin refers to as the “interracial plebian activities” that per­sis­tently frustrated the ruling class in port cities like New York.96 Prior to the fires, the undersheriff and several constables w ­ ere investigating a February 28 theft of merchant Robert Hogg’s goods. They suspected the work of a criminal gang involving John Gwin, a slave also known as Caesar and owned by a baker named John Vaarck, and Prince, owned by a merchant named John Auboyneau.97 The search led them to Mary Burton, an Irish “Spinster, aged about sixteen years,” a servant to John Hughson, who worked at his tavern.98 Hughson was a poor and illiterate cobbler by trade, but opened a tavern when he moved to the city. Among the reviled waterfront dram ­houses, Hughson’s was most maligned ­because it catered to Black and Irish workers, and was home to Peggy Kerry, who Horsmanden described as “a person of infamous character, a notorious prostitute, and also of the worst sort, a prostitute to negroes.” 99 She was Caesar’s lover, and ­later “bore his child, whose color was a ­m atter of considerable gossip and debate around town. Some said the baby was white; o ­ thers insisted that it was black.”100 Caesar was apprehended on March  1 and Prince on March 2. Eventually, as Horsmanden put it, the investigation of the robbery “paved the way to the discovery of the conspiracy.”101 Such a statement required the benefit of hindsight, as the first of the fires had not yet been lit. That would come on March 18, when, a slave named Quack, or as Linebaugh and Rediker describe him, “a revolutionary arsonist,” started a fire at the governor’s mansion, situated within the main military installation for the city, Fort George.102 At first, the fire merely smoldered through the night u ­ ntil winds picked up the next morning, helping the fire spread to the chapel, army barracks, and the general secretary’s office. Rain fell, putting a stop to the spread of a fire that threatened to engulf the entire city, but “the damage had been done: the very heart of royal authority in this impor­t ant Atlantic port now lay hollow and smoldering in ashes.”103 Beginning exactly one week ­later, small fires stirred fears of a brewing insurrection. The first was at Captain Peter Warren’s h ­ ouse, which many initially assumed was a result of a chimney fire and where ­little damage was done. On April 1, a hay fire in Winant Van Zant’s ware­house, situated near the docks on the East River, failed to spread far enough to damage the



Enemies of Their Own House­holds

185

structure or the stores within it. This fire was attributed to a man smoking a pipe on the haystacks stored ­t here.104 The flames did not spread far enough to damage the structure or its stores. Mr.  Quick’s stable was damaged by fire on April 4, the same day smoldering coals ­were found in the slave quarters at Ben Thomas’s ­house.105 The next day someone likewise discovered burning coals at the bottom of a haystack next to Joseph Murray’s stable. Again, “the embers w ­ ere extinguished before the fire caught.”106 Quack was reported in the streets that day, shouting “fire, fire, scorch, scorch, A ­LITTLE, damn it, BY-­A ND-­BY.” 107 Horsmanden, already convinced of a conspiracy, took his words to mean “the fires which we had seen already, ­were nothing to what we should have by-­a nd-by, for that then we should have all the city in flames, and he would rejoice it.”108 Horsmanden was not alone in his suspicions. Colonists already believed “slaves ­were always on the verge of fomenting a rebellion,” a suspicion supported by the memories of 1712 and the “regular stories of disaffected slaves behaving in ways that suggested they might be trying to rise up against their masters.”109 T ­ hese fears mingled with other awareness of risk. Even without the threat of arson, “fears about the dangers of fire ­were already heightened for purely natu­ral reasons,” namely “bitterly cold days” that “tend to produce two ­factors that contribute to fires in wooden structures: incredibly dry air . . . ​a nd p­ eople huddled inside—­often too closely—­a round highly stoked fires and candle light.”110 Furthermore, the inhabitants keenly felt their insecurity exacerbated by war with Spain, which left the city short of 600 members of the militia who had gone overseas to fight.111 ­These smaller fires could have been easily dismissed as coincidence once heads cooled, but on April 6 four separate arsons, with one resulting from a slave caught in the act, bookended the weeks presumed to be overtaken by the machinations of insurgent slaves. The first fire caught near the fort, at a ­house owned by Mr. Thomas, and then a second at a ­house owned by Mrs. Hilton, next to the home of slave trader Captain Jacob Sarly. Sarly’s slave Juan de la Silva was blamed for the latter of ­these. As Lepore opines, de la Silva was “a man with a very good motive,” for he “had been seized by an ­English privateer, John Lush, during an attack on a Spanish ship on which de la Silva served as crew.”112 Against his protestations that he was a ­f ree subject of Spain, the dark-­skinned “Spanish Negro” was taken to New York and sold into slavery. Sarly himself posited that the so-­called “Spanish Negroes” vowed “to ruin the city” ­u nless they ­were taken home to their own country. The response by the settlers: “Take up the Spanish Negroes!” The “bucket brigadiers turned into vigilantes and hunted down de la Silva and four other ‘Spanish Negroes’ ” who ­were also “captured by Lush in the fall of 1740.”113 While the five ­were interrogated at City Hall, a cloud of smoke was seen through the win­dows. When firemen arrived, they saw

186  B l a c k I n s u r r e c t i o n a n d Wh i t e C o u n t e r i n s u r g e n c y Cuffee, a slave owned by Adolph Philipse, take flight. Bucket brigadiers alerted the townsfolk and “a mob ‘of upwards of a Thousand Men’ ” seized Cuffee and carted him to jail.114 The full investigation into the conspiracy launched on April 11, with an award for ­informants offered by the Council. On April  21, the first ­g rand jury was impaneled. The following day, Mary Burton was called as a witness but declined to show in court u ­ ntil a warrant was issued. Then when on the stand, she refused to answer questions. When threatened with imprisonment, Burton talked, and at length. Based on her testimony, Horsmanden was convinced of a “a most horrid conspiracy” to “burn this city, and to destroy the white ­people,” hatched over multiple meetings at Hughson’s tavern, with “negroes and white p­ eople pre­sent.”115 Over the course of his investigation, Horsmanden’s anger and resolve over this latter claim strengthened. His journal recounting the investigation and ­t rials refers in its very title to the Conspiracy Formed by Some White ­P eople, in Conjunction with Negro and other Slaves, for Burning the City of New-­York in Amer­i­ca, and Murdering the Inhabitants. Horsmanden’s reports to colonial officials and his journal of the proceedings serve as the official rec­ord of the events of the alleged conspiracy. Historians are reasonably skeptical of his version of the affair. Given Horsmanden’s social position, deeply embedded as he was in the colony’s government, his account could have written itself, as it described developments that fulfilled the worst fears of the ruling class as though they ­were prophecy.116 Even if the plot was “crafted and employed by the conspirators themselves,” it nonetheless “matched the conspiracy script familiar to the community as a ­whole.”117 Eric Plaag argues that even across the divides of race and class, “the most impor­ tant influence was the weight of collective memory. Put simply, many of the New Yorkers involved in the 1741 event had been through all of this before.”118 With the 1741 conspiracy, ­there was a “returning cast of players from the 1712 event.” Three ­owners of enslaved conspirators in 1741 also owned slaves accused in 1712. Several members of the g­ rand jury in the 1741 t­rials owned slaves executed or deported ­after being accused in the 1712 rebellion.119 ­These facts taken together allow us to see why the magistrates ­were inclined to regard Mary Burton’s testimony as credible and why the g­ rand jurors w ­ ere apt to entertain Horsmanden’s zealous prosecution. Following Burton’s revelations, “a vast dragnet caught almost two hundred p­ eople, black and white, many of whom would be investigated and tried over the next several months.”120 As Linebaugh and Rediker describe, “the ‘cell’ that plotted and carried out the attacks” consisted of enslaved Blacks from vari­ous nationalities in Africa, including Coromantee soldiers; Irish workers, referred to by the ­English settlers as “Saint Patrick’s vermin”;



Enemies of Their Own House­holds

187

Spanish American sailors; and ­f ree Blacks.121 The Irish, who ­were similar to their Black confederates in that they “demonstrated a penchant for secret socie­ties and conspiracy,” accounted for as many as thirty-­five involved in the plot.122 The ruling class ­were continually troubled by the frequency with which white sailors and soldiers fraternized with ­f ree and enslaved Blacks. In addition to violating the racial bound­a ries officials ­were attempting to draw in law and culture, t­hese proletarians w ­ ere wont to reject the premise of private property. “At Hughson’s tavern,” Linebaugh and Rediker find, “the rebels practiced a ­simple communism. ­Those who had no money ­were entertained ‘at f­ree cost’; they ‘could have victuals and drink for nothing.’ ” This was “a world turned upside down, a place where Africans and Irish ­were kings, as they would be in the larger society ­a fter the uprising.”123 The proceedings ­were used by Horsmanden as an opportunity to drive a wedge between the races and to chastise whites who would cross the color line. He was incensed “that any white ­people should become so abandoned as to confederate with slaves in such an execrable and detestable purpose.”124 Not only had whites confederated in this “scheme of villainy,” Horsmanden believed whites like Hughson “­were the first movers and seducers of the slaves.”125 ­These traitors to their kind ­were to Horsmanden “the most flagitious, degenerated and abandoned, and scum and dregs of the white ­people, and o ­ thers of the worse hearts, if pos­si­ble ­because of abler heads, who entitled themselves to be ten times more the ­children of Belial, than the negroes themselves.”126 Horsmanden prosecuted the ­earlier burglary first, believing that witnesses would reveal crucial details about the larger plot. By May 8, Caesar and Prince ­were found guilty of burglary, condemned to death, and ­were hanged on May  11. According to Horsmanden, it was wise “to execute them for the robbery, and not wait for the bringing them to a trial for the conspiracy, though the proof against them was strong and clear concerning their guilt as to that also.”127 He hoped making an example of Caesar and Prince would induce other conspirators to come forward in hopes of a more lenient punishment and to “unfold this mystery of iniquity.”128 To encourage the full effect of this example, Caesar was gibbeted in public view. The day ­a fter they ­were hanged, the t­rials for ­those charged with arson and conspiracy began. The “earnest” example of Caesar and Prince loosened some lips. Torture opened more. Even for ­those who avoided physical torment in the short term, Black suspects had reason to believe that cooperation might result in lighter punishments. Richard Bond notes that “as the ­trials progressed” and more “chose to plead guilty and provide prosecutors with the names of other conspirators,” ­there was a stronger and negative correlation

188  B l a c k I n s u r r e c t i o n a n d Wh i t e C o u n t e r i n s u r g e n c y between the number of Blacks who cooperated and the number of executions.129 One reason that historians are skeptical of Horsmanden’s account of the conspiracy is that it relied on coerced confessions and deceptions on both sides. For this reason, ­there is a tendency to perceive “the testimony provided by blacks” not so much as “recountings of the a­ ctual events,” but rather “as a series of stories that men and ­women constructed from their daily experiences.” Bond adds that ­these experiences “may or may not have included the planning and execution of a conspiracy.”130 Among the first convicted w ­ ere Quack and Cuffee. During their trial, Horsmanden was contemptuous. ­A fter their conviction was determined, he said before the court: You both now stand convicted of one of the most horrid and detestable pieces of villainy, that ever satan instilled into the heart of ­human creatures to put in practice; ye, and the rest of your colour, though you are called slaves in this country; yet you are all far, very far, from the condition of other slaves in other countries; nay, your lot is superior to that of thousands of white p­ eople. You are furnished with all the necessaries of life, meat, drink, and clothing, without care, in a much better manner than you could provide for yourselves, ­were you at liberty; as the miserable condition of many ­f ree ­people h ­ ere of your complexion might abundantly convince you. What then could prompt you to undertake so vile, so wicket, so monstrous, so execrable and hellish a scheme, as to murder and destroy your own masters and benefactors? Nay, to destroy root and branch, all the white ­people of this place, and to lay the ­whole town to ashes.131 Such a speech would be a commonplace among proslavery and white supremacist ideologues a c­ entury ­later, but Horsmanden was trailblazing in the terrain of racial doctrine. Quack and Cuffee w ­ ere burned at the stake on May 30. On July 1, it was revealed that one accused slave named ­Will was rallying other slaves to confess, saying “he understood t­hese affairs very well,” and that ­unless they confessed and cooperated by naming ­others they “would ­either be hanged or burnt.” The editor of Horsmanden’s journal reports that “­Will was reputed to have taken part in the 1736 uprising in Antigua, where he supposedly informed on eighty-­eight of his fellow-­conspirators.”132 This snitch was burned at the stake on July 4, calling out more names as the flames licked his body. By June 12, John Hughson, his wife, and Peggy Kerry w ­ ere hanged. Just over a month ­a fter Caesar was gibbeted, his body still rotting in the sun, Hughson was strung up beside him. Lepore recounts the public response to the gruesome aftermath, as their bodies



Enemies of Their Own House­holds

189

fermented and dripped, long since found by birds, beetles, flies, and worms, pecking, sapping, gnawing. By the end of June a rumor had spread that the two corpses had changed, had exchanged color: Hughson had turned black and Caesar white. Curious New Yorkers flocked to find out. T ­ hose who could bear the smell discovered, on rowing or wading out to the island, that Hughson’s “Face, Neck, Hands and Feet, w ­ ere of a deep shining Black, rather blacker than the Negro placed by him.” Not only his skin but his hair and nose and even his lips had changed: “the Hair of Hughson’s Beard and Neck (his Head could not be seen, for he had a Cap on) was curling like the Wool of a Negro’s Beard and Head; and the Features of his Face w ­ ere of the Symmetry of a Negro Beauty; the Nose broad and flat, the Nostrils open and extended, the Mouth wide, Lips full and thick.” Caesar, at his side, a man who before his death “was one of the darkest Hue of his Kind,” had “turned whitish,” “bleach’d” by the sun.133 Peter Charles Hoffer wrote of the public nature of the executions, where mobs turned them “into a kind of entertainment, a gory circus whose attractiveness increased when the slaves w ­ ere dispatched in the most grisly fashion and then left to decay on the ropes or in chains.” He comments, “the only comparable event that comes to mind is the Southern lynching party common in the early twentieth ­century.”134 In a letter to the Lords of Trade, dated June 20, 1741, Lieutenant Governor George Clarke reported on the investigation and ­t rials, writing “how many Conspirators t­ here we do not yet know” and that “­every day produces new discoveries and I apprehend that in the town, if the truth w ­ ere known, ­t here are not many innocent Negromen, and it is thought that some Negroes of the Country are accomplices and w ­ ere to act their part t­ here.”135 By this point, Horsmanden was convinced that beyond being “a Negro plot to kill all the whites in town,” it may have been part of “a much broader Roman Catholic plot to destroy New York and thus allow for a Spanish (or possibly French) invasion of the city.”136 Being a priest alone was a capital offense in New York, but for his alleged role in the conspiracy, on August 4 the priest John Ury was sentenced to hang. He met his fate on August 29, the last day of executions connected with the conspiracy of 1741. By this point, nearly 200 had been arrested, at least thirty Blacks and four whites ­were executed, and seventy Blacks and four whites ­ were banished. Mary Burton was rewarded enough to buy her freedom with change to spare. A S candal of Com p le xi on Though the 1741 conspiracy is often referred to as a slave rebellion like the 1712 ambuscade, Linebaugh and Rediker more aptly describe it as a plot

190  B l a c k I n s u r r e c t i o n a n d Wh i t e C o u n t e r i n s u r g e n c y hatched “by a motley proletariat to incite an urban insurrection,” which “grew out of the work of the waterfront, the ­organized cooperation of many kinds of workers, whose Atlantic experiences became the building blocks of the conspiracy.”137 They note that for t­ hose who gathered in the conviviality and s­imple communism enjoyed at Hughson’s tavern, “ ‘white p­ eople’ ­were, in code or ­cant, the rich, the p­ eople with money, not simply the ones with a par­tic­u ­lar phenotype of skin color.”138 Hughson advised the slaves to “burn the ­houses of them that have the most money.”139 Another said Cuffee complained “a ­great many ­people had too much money and other had too ­l ittle.”140 Peggy Kerry once said their goal was “to murder e­ very one that had Money.”141 The ruling class responded with “the promotion of a white identity designed to cut across and unite a variety of ethnicities,” and demonized whites who associated with Blacks, describing Hughson as “the scandal of his complexion.”142 Thelma W ­ ills Foote concludes that the E ­ nglish continued to strug­gle with reterritorializing their national identity to unite E ­ uropeans ­under one race. Even “as late as 1760, an E ­ nglish visitor reported that the city’s settler population was comprised of so many ‘dif­fer­ent nations, dif­fer­ent languages and dif­fer­ent religions’ . . . ​it is impossible to give them any precise or determinate character.”143 Horsmanden certainly recognized the prob­lem of the interracial rabble that maintained a consciousness of their position as an exploited class and rejected the race consciousness of reterritorialized En­g lishness. If whites would not unite as whites, perhaps they could join together more reliably as anti-­Black. His solution, above all, was to reassert a racialized police mandate. A new round of slave codes would not be sufficient to prevent the next intrigue. ­A fter all, as Lepore observes, “what was supposed to have happened at John Hughson’s tavern,” when “dozens of slaves walking to the outskirts of town, on a Sunday night, to drink rum punch served by whites,” had “­v iolated just about ­every law on the books.”144 Horsmanden cautioned “the p­ eople in general” and “­every one that has negroes” to “keep a very watchful eye over them, and not to indulge them with too g­ reat liberties, which we find they make use of to the worst purposes, caballing and confederating together in mischief, in ­g reat numbers, when they may.”145 The colony as a w ­ hole must, he insisted, “be warned to keep themselves upon a strict guard against ­these enemies of their own ­house­hold, since we know what they are capable of.”146 Likewise, the following year, in a warning to the City Council and magistrates, Lieutenant G ­ overnor George Clarke cautioned that “as you value the peace and safety of this city and province, and your own preservation . . . ​, you are hereby strictly charged and required to see the laws against negroes duly and punctually executed.”147



Enemies of Their Own House­holds

191

In addition to better police regulation of slaves, the threat of rebellion called for more effective administration of slavery. Linebaugh and Rediker find that New York merchants came to realize “they had imported aboard their ships not just the scarred, beaten bodies of West Indian slaves but within ­t hose another bloody body of ideas and practices of insurrection.”148 The ruling class restructured the slave trade. Ira Berlin reports that “before 1741, 70 ­percent of the slaves arriving in New York originated in the C ­ aribbean and other mainland colonies, and only 30 ­percent came directly from Africa. ­A fter that date, the proportions ­were reversed.”149 The city had just shifted from primarily exploiting slave l­abor in a domestic mode to a commercial mode. ­Doing so brought too many “troublesome males.” Davis points out that the prosecutions in the conspiracy t­ rials “alone cut the city’s population of adult male slaves by about one-­seventh, in executing thirty and shipping off seventy-­one ­others.”150 This offered an opportunity to shift back to prioritizing slave l­abor in domestic work. In the second quarter of the eigh­teenth ­century, the seeds of white supremacy ­were sown in the North by Horsmanden as they ­were in the South by Lieutenant Governor William Bull. Also apparent was an emerging crisis of liberty and glimpses of the abolitionist movement to come, which would together set in motion a proslavery movement in response, developing white supremacy into a major ideological force. But all ­t hese tendencies ­were in their infancy, a­ fter chattel slavery was institutionalized, ­a fter northern cities and southern plantations ­were slave socie­ties, and a­ fter both had articulated clear police mandates that ­were thoroughly racialized in response to the innovative and insurgent ­resistance of enslaved Blacks.

​Conclusion P e c u l i a r I n s t i t u t ion s This conclusion recapitulates the contours of the three peculiar institutions of British colonial Amer­i­ca: Black chattel slavery, the police mandate, and white citizenship. In ­doing so it underscores the political-­ economic and functional imperatives that drove dif­fer­ent colonies to develop the same institutions despite diverse influences from the cast of characters, geography, and local economies, and despite a lack of coordination of—­and occasionally impediments to—­these institutions from the ­mother country. This chapter delves further into ideas raised in part I that could only be elaborated upon a­ fter disclosing the historical details in parts II and III, particularly in terms of how fulfilling—or attempting to fulfill—­the counterinsurgent police mandate provided whites with an opportunity to build alliances across the class divide, and thereby make the color line practical and intractable. The ­performance of the police duties explored in part III allows us to now see a novel form of distributed sovereignty that was linked to race. As such, rather than building a ­political regime where the state and civil society ­were mutually exclusive, the police law of slavery and the fulfillment of the police mandate did not build a bridge between them as much as they made distinctions between t­hese two spheres more abstract than a­ ctual. The implications this has for a critical theory, signaled early in the book, are not only clear but consequential, particularly if we think of critical theory as a component of a transformative praxis. Before ending with a note on the implications for praxis, this chapter briefly discusses some historical developments of race and police that are beyond the scope of this book. T ­ hese gestures are in s­ ervice of the claim that the critical theory developed through an account of the origins of police, informed by the histories surveyed in parts II and III, can guide an analy­sis of the evolution of race and police into the pre­sent day. Drawing th e Color L i ne In the sixteenth c­ entury, Spain and Portugal dominated the so-­called New World. The Netherlands, France, and even Sweden ­were more invested in the Atlantic than ­England. During the seventeenth ­century and the first 192



Peculiar Institutions

193

­ ngland went half of the eigh­teenth, the period considered in this book, E from being a secondary E ­ uropean power and a dabbler in the Atlantic to become the premier world power, dominating the transatlantic trade in material and ­human commodities. The wealth produced through the exploitation of enslaved l­abor in the production of sugar and tobacco was not the only f­actor in its ascension, but it was a most crucial component. Without the primitive accumulation of ­human capital through enslaving Africans, the ­E nglish would not have been able to produce ­these crops competitively. Slavery was a functional necessity. In Britain’s mainland colonies, officials and the nascent cap­i­tal­ist class faced a crisis of underproduction, the resolution of which produced another crisis, that of security. Faced with a shortage of necessities, much less the commodities that would ensure their enrichment, and faced with a shortage of working p­ eople of their own nationality, the ruling class turned to the use of slave ­labor. Given that E ­ nglish culture had come to tout the virtues of liberty, that the laws of ­England forbade the holding of slaves, and that the colonial charters specified that the laws of E ­ ngland would be the basis of law in its colonies, it would seem that the exploitation of slaves would come with hesitation. Almost immediately, however, colonial officials dabbled in the sordid affair. Soon they aided the acquisition of slaves by private planters and merchants. By the end of the c­ entury, they w ­ ere building slave socie­t ies. In the following c­ entury, half of the Africans forced into slavery in the Amer­i­cas ­were carried in British slave ships. On the basis of economic and l­egal experiments in the m ­ iddle half of the seventeenth ­century, in the last d­ ecades three peculiar institutions w ­ ere created in tandem. E ­ ngland’s mainland colonies began practicing a novel form of chattel slavery, out of which two mutually exclusive racial categories w ­ ere created. To one, which they called “Negro,” w ­ ere relegated all ­those of African descent, who on that basis w ­ ere capable of being converted to fungible property, whose ­children would then be enslaved by default, and who would be killable with impunity for even considering disobedience. Since ­those in this group ­were increasingly seen as disobedient by nature, the condition that might protect them from being murdered with impunity was a mere pretense. This was the basis for the creation of the Black slave society. To the other category, at least nominally, belonged all whites, who by the eigh­ teenth ­century ­were guaranteed protection against enslavement. Subjects of rival colonial powers who resided in E ­ ngland’s colonies w ­ ere naturalized and granted the rights of ­English subjecthood. In exchange for ­these rights, they had the obligation of aiding in the enforcement of the colonial laws and the fabrication of security through militia and police s­ervice. This was the basis for the creation of white citizenship and police.

194

C onc lu si on

Th e Police L aw of S lave ry Despite protracted wars with the Spanish, French, and Dutch, and though indigenes initially ­were able to beleaguer entire colonies, the unavoidable presence of internal enemies that multiplied annually was—­b oth through increased importation of the enslaved and through their natal alienation, which converted their ­children into chattel—­the primary source of insecurity for the colonists. As slave populations swelled, the colonists’ fears of insurrection ­were well founded, and so fulfilling their desire for control was essential. This initiated a dialectical strug­ g le between control and ­resistance—­less abstractly, between police and Blacks. The laws that created a system of slavery and the practical necessities of governing a growing population of slaves effectively introduced race and policing to the mainland. Slaves w ­ ere feared, not b­ ecause they ­were Black, but b­ ecause they ­were enslaved. The E ­ nglish ­were developing ideas about liberty that w ­ ere grounded in fundamental h ­ uman dignity, and they believed any enslaved person is compelled by nature to seek freedom. Controlling enslaved Africans, as they saw it, was a prerequisite of their enslavement. This necessity was all the more relevant in ­English settler colonies on the mainland when compared with plantation colonies like Barbados, where settlers expected to cohabitate with thousands of enslaved Blacks and to develop a permanent colony for settlement. All the mainland colonies expressly assigned the police function to the militia and granted police power to white citizens. Where slave populations ­were smaller, the state ­either remained satisfied with that arrangement, as was the case in the northernmost colonies, or delayed the development of slave patrols for ­decades, as in the South. In South Carolina, where the first slave patrols w ­ ere founded in 1704, the police mandate was issued to all whites eight years ­earlier. A 1696 law expanded the pass system and required all whites to apprehend and whip any suspected slave without a pass. As Sally Hadden remarks, “the shift from voluntary effort to mandated duty effectively turned the entire white population into a community police force.”1 Each colony had its unique practical demands, and their lawmakers created law from a confluence of local and external influence. The slave codes provided ­legal direction and recourse for the militia, slave patrols, and white citizens obligated to act in­de­pen­dently as police. Policing helped make the color line practical. The police mandate enrolled all whites in policing the day-­to-­d ay ­labor and movement of Blacks and in the regulation of other economic activities in which they engaged, be it selling their masters’ wares or their own, both legally and illegally, in the markets, or buying liquor in the taverns that would serve them. More impor­tant was that this mandate mobilized whites to walk beats, inspect passes, search residences, break up



Peculiar Institutions

195

gatherings, and terrorize Blacks both day and night. When called upon, they searched for fugitives and assaulted communities of escaped slaves who “lie hid and lurk in obscure places.” All ­those with the appearance of African ancestry ­were subject to police, as ­were they subjected to the law established in the slave codes that explic­itly lumped ­those with partial African ancestry together with ­those with exclusively African parentage. Winthrop Jordan makes the issue plain, writing that “all the ­European colonists in the Amer­i­cas faced the prob­lem of racially mixed offspring,” but only the E ­ nglish developed a rigid color line with “no  system of ranking” Blacks with mixed ancestry.2 “In the Portuguese and Spanish colonies,” he notes, “­there rapidly developed a social hierarchy structured according to degrees of intermixture of Negro and E ­ uropean blood, replete with a complicated battery of terminology to facilitate definition.”3 In the slave codes, Jordan finds that visibility is the key ­factor. “Anyone whose appearance discernibly connected him with the Negro was held to be such.” 4 Without mentioning the policing of Blacks specifically, Jordan concludes that “the line was thus drawn with regard to practicalities rather than logic. Daily practice supplied logic enough.”5 Nothing made this more practical than the policing of Blacks by slave patrols. The importance of visibility cannot be overstated. As Jordan makes clear, “the existence of a rigid barrier between whites and t­hose of Negro blood necessarily required a means by which the barrier could on occasion be passed. Some accommodation had to be made for t­ hose persons with so ­l ittle Negro blood that they appeared to be white, for one simply could not go around calling apparently white persons Negroes. Once the stain was washed out visibly it was useless as a means of identification.” 6 ­Here we see a racial schema that is not rooted in biology or genealogy, but one that is based on vis­i­ble ­presentation alone. The proportion of African to E ­ uropean ancestry was irrelevant. All that mattered was appearance. To appear Black was to be subject to a set of laws and to a peculiar police mandate specific to Blacks. Profiling is fundamental to police work, more so than is the enforcement of law. Profiling is also “the very inverse of law enforcement,” ­because with the latter “a crime is discovered, and the police then look for a suspect,” while “profiling means that a ‘suspect’ is discovered, and the police then look for a crime that person might have possibly committed.” 7 This is part of the general order mandate at the core of the police concept, broadly speaking. Profiling always “focuses on ­people themselves through a ­process of visual generalisation,” but in the policing of slavery was inaugurated a racializing ­process unique to the colonies. Steve Martinot notes that profiling “functions through visual perceptions in the moment of a difference of appearance,” and so “it can only rely on a difference from what is not profiled.” 8

196

C onc lu si on

This observation is all the more significant for a time when all whites—­a nd only whites—­were the police and all Blacks w ­ ere suspect. The presence of f­ree Blacks caught the attention of lawmakers in fashioning the police mandate. In New York and elsewhere, ­free Blacks ­were restricted in their associations with enslaved Blacks. In South Carolina and elsewhere, enslaved Blacks w ­ ere ­limited in the clothing they could legally own and wear to help differentiate them from ­free Blacks. A comprehensive slave code passed in 1740 by the South Carolina Assembly, responding to “slaves in this province” wearing “clothes much above the condition of slaves, for the procuring whereof, they use sinister and evil methods.”9 Enslaved Blacks ­were forbidden “to have or wear any sort of apparel whatsoever, finer, other, or of greater value than negro cloth, duffils, kerseys, oznabrigs, blue linen, check linen or coarse garlix or callicoes, checked cottons, or Scots plaids.”10 Th e Fir st Pol i c e O ­ rgani zati on s The first police o ­ rganizations in the Carolinas, V ­ irginia, and ­M aryland differed from one another in impor­tant re­spects and took influence from efforts in other colonies to control slaves—­even if ­t hose efforts failed. Hadden argues that the structure of the slave patrols in North Carolina and ­Virginia “was affected by forces that seem to have been less intense in South Carolina.”11 The smaller proportion of slaves was offset in part by a larger proportion of indentured servants and debtors. The need to regulate ­these groups “­shaped the thinking of ­Virginia and North Carolina lawmakers when it came to restricting slave movement.”12 What is clear is that when prevention of insurrection was added to the task of capturing runaways, ­Virginia and North Carolina moved to found dedicated patrols. In 1741, North Carolina lawmakers rewrote their entire slave code in response to the Stono Rebellion in South Carolina. It established a lucrative reward system that encouraged private slave catchers to continue even ­a fter the creation of the slave patrols over a d­ ecade ­later. In 1753, a­ fter an attempted insurrection, the General Assembly created a slave patrol that differed from both ­Virginia and South Carolina in that the county court appointed patrollers to enter slave residences in search of weapons. As in ­Virginia, they ­were exempted from militia duty and tax collection.13 Also, like their neighbors to the north, “the slow introduction of bondsmen into North Carolina delayed even longer that colony’s creation of slave control laws.”14 U ­ ntil 1779, the North Carolina patrols “constituted a ­limited form of patrol at most.”15 Unlike V ­ irginia’s and South Carolina’s patrols, they could not apprehend slaves nor search residences of whites in pursuit of fugitives.16 By that year, the Assembly mandated that patrollers receive regular pay and that they be exempt from jury duty, road work duty, militia musters, and most taxes.17



Peculiar Institutions

197

­ hese differences also owe to the very experimental nature of the earliT est slave patrols. Laws regulating the patrols and the diligence of entire patrol regiments changed frequently. Experimentation continued ­u ntil ­after the Revolution, when the patrols w ­ ere institutionalized and given an expanding  role in the antebellum period. Ultimately, the experiments that succeeded in earning broad support occurred in South Carolina, where enslaved Blacks outnumbered whites. ­A fter the war for ­independence, the United States established territories and states in the South and the West. Though with notable exceptions, the South Carolina slave patrol, particularly as it was structured by the 1740 patrol law, served as their model. In the early eigh­teenth ­century, police methods ­were not divided by North and South, but rather ­were distinguished by the proportion of slave populations. Where slaves w ­ ere more populous, as in South Carolina, colonies moved quickly to develop dedicated police ­organizations. Elsewhere, the colonies directed the police mandate to the militia and the white citizenry. The militia and the slave patrol often operated in parallel. As Peter Wood observes, what the militia’s “watch did for Charlestown, the patrol system did for the rest of the colony.”18 Typically, patrol duty provided exemption from militia responsibilities. Some colonies considered ­these parallel activities to be redundant and merged them. The merger of the patrol and militia in 1721 Charlestown “served to make the entire militia system available for the surveillance of slaves, and in this re­spect it marks an impor­tant step in the shift of white priorities away from the prob­lems of external danger to questions of internal security.”19 From that point ­u ntil the end of slavery, “the local control of slaves in South Carolina rested with military authorities.”20 This period also marks “a transformation of the militia ‘from a vital defensive agency to one whose principal duty was the police supervision of slaves.’ ”21 The police mandate was formed in New York in response to the same kinds of p­ olitical crises and upheavals, the same threats of insurrection and successful rebellions as we saw in the South. The mandate was directed to and fulfilled by the militia and white citizens, and ­because the slave population remained small in New York, they continued to fulfill the mandate well into the nineteenth ­century. When the New York Police Department was first formed in 1845, it was the result of a fusion of the police mandate to suppress racial unrest and control a racialized working class with the duties previously assigned to the watch system. ­Because the slave patrols ­were the first ­organizations dedicated exclusively to fulfilling the police mandate, unlike the militia that had military duties beyond their police role, they properly stand as the first police ­organizations. To claim that slave patrols are the origins of police is not to say that a­fter 1704 representatives of South Carolina slave patrols traveled

198

C onc lu si on

throughout the North and South to urban cities and rural towns to teach local governments how to assem­ble a police and to train the personnel they hired. It is not to say that slave patrols everywhere remained intact without any major changes through the Civil War and beyond, incrementally adapting to spreading urbanization. Rather, to claim that slave patrols are the origins of police in the United States is to argue that the state was so profoundly informed by the practice of policing Blacks during slavery that it provided a core logic of policing that would be a component in the ge­ne­tic material for centuries of policing in this country. It is also to assert that ­these police wedded state power and race, such that internal security would be defined in racial terms, and that the internal ­enemy, as an object of state vio­ lence, would be racialized through the p­ rocess of being defined and regulated. It explains not only the enduring racial dynamics of policing, and not only the role of the state in maintaining the color line for centuries, but also the uncommon degree of vio­lence used by police in the United States. This vio­lence is equaled only in countries where a real or perceived threat of civil war is constantly calling on its raison d’état, to regularly exercise prerogative power through its many petty sovereigns, in order to preserve the security of the state itself, a security generally perceived to be the precondition for liberty among ­those granted full citizenship. To say that slave patrols are the origins of police is to say that from their creation and institutionalization, the slave patrols provided a core logic of police, one that defines a subset of the population—­those on one side of the color line—as anticitizens, existential threats to the social order. In response, the state must constantly ­organize suppressive vio­lence against them. Whereas t­ hose on the other side of the color line—­white citizens—­when not using uniformed police as proxies, may regularly and directly use vio­lence against non-­whites with relative impunity, an impunity that signals a sanction by the state for them to function as petty sovereigns, provided the vio­lence they wield has the result of preserving the racial order and the rule of capital. Wh ite Citiz e nshi p The ­Virginia General Assembly echoed an e­ arlier M ­ aryland law in a comprehensive slave code enacted in 1705, which defined non-­white servants as chattel slaves and prohibited non-­whites from owning white servants. Upon passage of this law, all white servants in the employ of non-­whites ­were emancipated. In this moment slavery was racialized, but it also established the practical basis for a form of racial power that would spread from the economic to the p­ olitical realm. Just as whites would not be eco­nom­ ically subordinated to non-­whites, they would also not be ruled by—or rule with—­non-­whites. It would still be ­decades before this standard served as a basis for a white supremacist ideology, but white supremacy was the



Peculiar Institutions

199

de facto princi­ple upon which citizenship was established. As Joel Olson explains, citizenship came to be defined by “the power­f ul negative relationship between citizenship and slavery: one is a citizen b­ ecause one is not a slave.”22 Citizenship was not merely citizenship: it was white citizenship. The entire social order was built around Black slavery and white citizenship, the two forms that defined the peculiar institution of race. As Olson asserts, “citizenship was defined against slavery. Blackness and slavery w ­ ere associated. Black and white ­were diametrically opposed. All that is left is to complete the square: to be a citizen was also to be white. This is not an empirical observation of who had the vote at the time. Whiteness was not a biological status but a p­ olitical color that distinguished the f­ree from the unfree, the equal from the inferior, the citizen from the slave.” 23 The United States is what Olson calls a “white democracy, a polity ruled in the interests of a white citizenry and characterized by simultaneous relations of equality and privilege: equality among whites, who are privileged in relation to t­hose who are not white.”24 Citizenship seals the connection between democracy and racial oppression.25 White citizens ­were defined by their equality among all white ­people, including the rich, and their superiority to all Black p­ eople—­even the rich.26 This form of equality was not a guarantee of success or power, but instead established a threshold below which they could not fall. The tension between equality among whites, on the one hand, and i­ nequality between whites and non-­whites, on the other, generates a conflict that “has marked ­every stage of the history of American democracy.”27 Judith Shklar explains that citizenship in the United States has two defining features.28 The first is the franchise. The ­process of racially defining citizenship was long. The first half of the eigh­teenth c­ entury was occupied with the disenfranchisement of Blacks. As Lerone Bennett Jr. observes, “it was not ­u ntil 1723, in fact, that blacks ­were denied the right to vote in ­Virginia,” and “blacks also voted in North Carolina u ­ ntil 1715, in South Carolina u ­ ntil 1701, and in Georgia u ­ ntil 1754.”29 In addition to voting, Blacks held public office. A ­century ­later, extending the full franchise to whites was on the agenda, specifically by eliminating the requirement that whites own property in order to vote. While slavery was abolished throughout ­Europe, the United States stood alone in expanding Black slavery, but also in extending universal suffrage to all white male citizens. The other feature Shklar identifies as definitive of citizenship is the ability to freely sell one’s own l­abor. By the eigh­teenth ­century and u ­ ntil the passage of the Thirteenth Amendment in 1865, more than 90 ­percent of all Blacks in the United States ­were owned as property ­u ntil their deaths, and their ­children ­were born into a lifetime of slavery. They w ­ ere deprived of self-­ownership. When race decides ­whether or not one can sell one’s own

200

C onc lu si on

l­abor, then citizenship is racialized. This is another way that white citizenship was defined against slavery. In addition to the franchise and self-­ownership, Olson explains that the cross-­class alliance is a peculiar and definitive aspect of white citizenship. In the United States, race not only bifurcates the working class between whites and non-­whites. It extends racial solidarity from working-­class whites to the ruling class. Olson explains that “the cross-­class alliance is the class foundation of the white democracy.”30 The capability of being recognized as white does not make one a member of one class, and the denial of this recognition does not make one a member of another class of non-­whites. Race, Olson explains, is not just “class with a tint of color.”31 It is the ­performance of the cross-­class alliance that has been fundamental to the class formation of white workers. It has maintained stability for the wage system by ensuring ­political interests would be united by racial category rather than by economic class.32 Through this alliance of working-­class whites with the cap­i­tal­ists, white identity was forged and solidified, and white workers attained a unique relationship with the state. The security of the cap­i­tal­ist class has depended for centuries on white workers acting against their class interests and instead on the basis of their racial interests. In exchange for the advantages of citizenship, white workers maintain an economic order that exploits them. The Cross-­Class Alliance in Policing One of the greatest successes of race as a mechanism for class control is found in the suppression of working-­class unity and strug­g le in the United States. Slavery would not have survived “without the tacit or explicit c­ onsent of the white majority.”33 It could not have thrived without the professional and voluntary participation of all whites in police. Conversely, police could not have existed without white citizenship, a relation in which the state shares sovereignty with civil society by actively policing its bound­a ries to the exclusion of non-­whites. Police both established a basis for and defined responsibilities of white citizenship. That police was directed to fabricate and administer racial domination was not incidental to the institution; it was fundamental to its mandate. The work of the patrollers involved detaining and questioning whites, and entering their homes for warrantless searches. All whites w ­ ere required to serve on the patrols, and they w ­ ere fined for nonper­for­mance. Whites of all classes submitted to the state both when conscripted to serve on the patrols—in most cases without any regular pay—­and to welcome armed men into their homes.34 That submission was a crucial component of earning the wages of whiteness. While the slave patrols ­were one of several ­organizations that fulfilled the police mandate, and while individual white citizens ­were required to in­de­ pen­dently perform police duties, their members “had unique distinguishing



Peculiar Institutions

201

qualities.”35 As Hadden describes them, “in terms of status, pay, and community expectations, slave patrols ­were not overseers, constables, slave catchers, or purely private citizen hunting rewards”—or avoiding penalties.36 Slave patrollers w ­ ere officially appointed and operated with a direct sanction by the state. They w ­ ere indemnified and protected by the laws that established them. Their duties ­were both specific and ranged widely, and their existence in cities “eventually led to the creation of full-­time, paid police forces in the South—if not before the Civil War, then shortly a­ fter.”37 The slave patrols policed the Black population, but they also policed Blackness, and in so d­ oing, they “helped construct the meaning of ‘whiteness’ as violently anti-­black.”38 In addition to this repressive dimension, s­ervice in the form of policing “meant camaraderie and social interaction with other whites.”39 Hadden emphasizes that “in a status-­conscious society like the South, position frequently determined the range of permissible activities one engaged in. When considering what slave patrollers actually did in the course of their nocturnal activities, it is essential to remember that many communities selected their patrols from the full spectrum of the white social hierarchy.” 40 Police was perhaps the only activity that would for hours place lowly whites in the com­pany of the largest holders of property and slaves. As chapter  8 shows, the cross-­class alliance was not reliable in New York. “White solidarity could never be assumed in eighteenth-­century ­Virginia or South Carolina,” where t­ here was also “a surprising level of cooperation between lower-­class whites and blacks.” 41 Working-­class whites “traded forbidden liquor and stolen farm goods” with slaves, and some operated “illicit meeting ­houses” where insurrections ­were discussed.42 The slave patrols attended to t­ hese flagitious activities, effectively “pitting slave patrols against poor whites in their efforts to control slave movement and be­hav­iors.” 43 As the c­ entury progressed, Morgan notes, “the trend was in the opposite direction. Proximity of estate induced some plain white folk to throw in their lot with slaves, but more often it spurred most to put as much distance as pos­si­ ble between themselves and bondpeople. The eigh­teenth ­century was a crucible in which the deep and increasingly reciprocal contempt felt between lower-­class whites and blacks was forged. That contempt had not emerged in fully polished form by 1800, but the essentials ­were in place.” 44 The ruling class “held out inducements to lower-­class whites in order that they might support and police” the social order of the slave socie­ties.45 Thousands of claims w ­ ere made by working-­class whites to be paid for returning fugitive slaves. It was through the policing of Blacks that Morgan argues “the ruling class had recruited plain white folk to support its interests.” 46 Through this work, “whites gradually moved ­toward a sense of communal solidarity and purpose through their debasement of blacks.” 47

202

C onc lu si on

The gentry had two competing complaints about the policing performed by working-­class whites: they ­either shirked their patrol duties entirely or ­were exceedingly cruel in their violent restraint and punishment. “The reluctance of plain white folk to share in the policing of the slave system does not prove that they ­were sympathetic ­toward blacks,” but, as Morgan puts it, “it does indicate that white solidarity could not be automatically assumed, even as the gap between the races widened.” 48 The fees paid to patrollers and the esteem that could be found in debasing Blacks was not always enough to ensure reliable police s­ervice by poor and indentured whites. Planters and officials often complained of their dereliction, and they relied on fines as punishment for t­hose who w ­ ere remiss in fulfilling their obligations. In 1775, a commander of a South Carolina regiment, Joseph Glover, confirmed that the slave patrols had “stagnated” ­because working-­class whites w ­ ere lax in their participation and the gentry too often paid o ­ thers to serve in their stead.49 Distributed Sovereignty When the legislature effectively codified an internal population as social enemies, deprived them of citizenship, and granted all citizens power over their lives, they distributed a form of sovereignty that is far more power­ful than all the pretensions of “the ­w ill of the ­people” exercised through the franchise. This provided a model of sovereignty that would profoundly influence the formation of the state that emerged to replace the colonial administration of the settlements. H ­ ere is sovereignty in the classic sense: the ability to exercise discretion in taking the life of another. That sovereignty is given only one condition: the person whose life is taken must be on the darker side of the color line. The only concern over the legality in the killing of a slave was the property interest of the master. The slave’s status as chattel made the killing of a slave not unlike the killing of livestock, or the destruction of physical property. The only issues up for consideration by the judiciary—or in­de­pen­dently among the relevant parties—­was ­whether the slave’s o ­ wner would be compensated for the loss of their property, w ­ hether the state would be responsible for that compensation, and w ­ hether the killer would be remunerated for their ­service or fined for destruction of property. The killer was unlikely to receive such a fine—he may have been more likely to be fined for failing to take a slave’s life if it was interpreted as shirking the mandated police duty. Isaac Ariail Reed contrasts the distributed sovereignty of a republic to the sovereignty of a king. On the one hand, in the empire of the king, “­there is a tendency to see the far-­flung edge of the empire . . . ​a s blurred, as a land of vague impressions and improvisations, distant from the sacred center.”50 On the other hand, “members of the republic become notoriously



Peculiar Institutions

203

obsessive about its edges, about who is in—­a nd who is out—of the ­people’s game.”51 ­These edges are “the site of intensive vio­lence,” and, in the case of the United States, “the use of racial criteria to judge and violently enforce who is inside and who is outside the republic is deep and extensive.”52 A result of this distribution of sovereignty is that race functions not only to create an alliance of the white working class with the ruling class; it also results in a blurring of the boundary between state and civil society. Th e Deve lop m e nt of Rac e and Pol i c e This book tells the story of the co-­origination of Black chattel slavery, colonial police, and white citizenship by addressing their origins in the period from the initial settlement of the ­English colonies through the 1740s. ­Because this book ends not long ­after ­these institutions crystallized, it is necessary to acknowledge that they could have faltered afterward. This was a view of the earliest stage of institutions that in fact did carry on, and across centuries. Together they locked race, capitalism, and police in a relationship that persists and has adapted across ­every major crisis in the history of the United States. The stories of their development, the transformation of ­t hose institution through periods of crisis and renewal, can be pieced together from stories already told by o ­ thers, using an approach modeled h ­ ere, to further theorize race and police.53 Open questions remain for historians and theorists to answer about how ­these institutions changed over time.54 In conclusion, I offer a brief comment on some ­later developments of ­these institutions. David Roediger, Loïc Wacquant, and Steve Martinot have already worked through some of the issues that would be required in answering some of the questions pertaining to the developments of race and policing beyond this period. Roediger discusses three successive modes through which policing created and re-­created the cross-­class alliance of whites through the nineteenth ­century: first is “the antebellum practice of paying poor whites to patrol at night to police the slave system,” next was “the w ­ artime practice of the rich paying for substitutes to serve in their place,” and fi­n ally came “the Klan’s night r­ ides.”55 Roediger contends that racist mob vio­lence that marked the first half of the ­century patterned the formalized vio­lence of the Klan in the latter d­ ecades. The introduction to this book pre­sents Loïc Wacquant’s idea that slavery is one of four peculiar institutions, along with the Jim Crow system, the urban ghetto, and “the novel o ­ rganizational compound formed by the vestiges of the ghetto and the expanding carceral system,” which together form a “lineage of institutions” that “have carried out the work of race making by drawing and enforcing the peculiar ‘color line.’ ”56 ­These institutions have a “structural homology,” in that they all perform “the task of defining,

204

C onc lu si on

confining, and controlling African Americans in the United States.”57 They ­were created to intensify the extraction of l­abor, to fabricate social division within the working class along racial lines, with a discrete hyperexploited group determined by skin color within it. The forms taken by each of the four institutions result from accommodating fundamental social, p­ olitical, and l­egal changes while ensuring continued racial domination. Martinot addresses “the ­process of reconstructing whiteness” in responding to the abolitionist movement, to “the effects and meanings of Reconstruction governments in the south,” and to “what the civil rights movements had gained.”58 He notes that ­there is “a similar pattern” that is “discernible in all three instances.” The pattern emerged in response to the mobilization of negatively racialized p­ eople rising up in r­esistance or rebellion, particularly ­a fter they achieved some gains. Then ­those movements w ­ ere “blocked, obstructed, and eventually decimated by white supremacy and white nationalism” through violent suppression, legislative acts, and intensification of policing.59 The growth of the abolitionist movement, the abolition of slavery in northern states, the contagion of liberty leading up to and beyond the Revolutionary War, a nascent white supremacist ideology, and other ­factors profoundly s­haped race and police in the second half of the seventeenth ­century and the first half of the eigh­teenth, such that detailing their effects would warrant an investigation as extensive as the pre­sent volume.60 It was not ­u ntil slavery was threatened by ­people with cultural and ­political influence that elaborate justifications developed, drawing from new ideas about the natu­r al sciences. The shift from seeing slaves as a threat to security as a consequence of their liberty being stolen to seeing Blacks as a threat ­because of their nature is a product of the Age of Revolution, responses to abolitionism, and a mature and expanded system of slave production. In 1740 ­t here ­were just over 900,000 ­people in all of the mainland colonies, and about 134,000 of them ­were Black. North Carolina did not have slave patrols u ­ ntil 1753, when they had about half as many slaves as in South Carolina but a significantly larger total population. They enslaved only about one-­fi fth as many as ­Virginia. Georgia was four years ­behind North Carolina in forming their slave patrols, but only had a few thousand slaves. Leading up to the Revolutionary War, when the mainland colonial population reached 2.5 million, V ­ irginia had nearly a quarter of the total population and almost half of the slaves in the mainland colonies. In 1770, ­t here ­were one-­tenth as many Blacks in bondage as ­there w ­ ere when slavery ended. The westward expansion of the slaveocracy was l­ ater still. The state government of Tennessee was ­organized in 1796 and ­adopted North Carolina’s 1741 slave code with minimal alterations, which it maintained ­u ntil 1857. Tennessee’s legislature passed its first patrol law in 1806.61 The Territory of



Peculiar Institutions

205

Mississippi, incorporated in 1798, formed slave patrols in 1811. Missouri followed in 1823. Slavery in the United States persisted in the South for d­ ecades ­a fter its abolition was well underway in E ­ urope and the colonies of its nations. As laws ending the slave trade and the use of slave l­abor ­were passed elsewhere, the United States exploited ever more Black slaves. The plantation system was the bedrock of a new global economy, and so it had many defenders among the cap­i­tal­ist class—­even ­those who wrung their hands over the evils of the peculiar institution. Just as crucial to its longevity and expansion was a white working class that attempted to earn greater economic and social standing at the expense of Black freedmen and slaves.62 Especially a­fter states in the North abolished slavery, white citizens ­were enrolled in the fulfillment of fugitive slave laws, ensuring that the police obligations of citizenship w ­ ere maintained even when slavery was not. Northern cities founded their so-­called modern professional police forces ­after slavery was abolished in the states in which they ­were incorporated, ­a fter tens of thousands of former or escaped slaved migrated from the South, and ­after waves of immigrants from subordinated ethnic groups flocked to them. ­These transformations saw ethnic conflict, race riots, anti-­abolitionist riots, and, ­l ater, anti-­d raft riots in their wake. It was only ­a fter ­t hese transitions that policymakers insisted that the past methods of policing, which relied on the militia and constabulary, w ­ ere insufficient to the task. In the ­m iddle of the nineteenth ­century, police in the northern states was reactive, experimental, and poorly ­organized. ­T hose traits spread to the South ­a fter unification.63 By the end of the nineteenth c­ entury, a common, control-­oriented bureaucratic style of policing had been established, and throughout the ­u nion it became more narrowly defined.64 Though the police mandate transitioned, profoundly influenced by the reconfiguration of the racial order a­ fter slavery was abolished, it maintained a preventive approach already exemplified by the southern slave patrols. During the Civil War, slaves crippled the southern economy through a general strike and, once freed, engaged in the military conflict with their own interests in mind. Slave patrols w ­ ere tasked with combating Black antagonists and attempting to slow their flight from forced ­labor. Their failure with regard to the latter spelled the certain defeat of the South. In the South a­ fter the Civil War, slave patrols ­were not abolished, nor did their mandate change, as the threat of insurrection loomed larger than ever, particularly when Blacks w ­ ere arming themselves and forming into militias. Nonetheless, ­a fter the passage of the Reconstruction Amendments, slavery no longer existed, and so the patrols ­were no longer charged with duties par­tic­u ­lar to regulating slave populations. Their attention nonetheless

206

C onc lu si on

remained almost exclusively on Blacks. The slave codes w ­ ere rewritten as Black codes. The slave passes ­were replaced by work papers. Blacks ­were forced into dangerous, low-­paying work or into peonage to avoid being policed as vagabonds. As the patrols proved insufficient, cities and towns that did not have police forces before the war, such as Atlanta, Augusta, Nashville, Memphis, and Richmond, established professional, uniformed police during Reconstruction. The Ku Klux Klan and vigilante ­organizations, however, claimed many more members than ­people employed as police officers, and they ­were the primary source of coercive social control in the South. While they lacked official state sanction, they possessed de facto impunity. W.E.B. Du Bois remarked that at the turn of the twentieth ­century, the 15 million descendants of slaves formed “a separate group ­because of ­legal enslavement and emancipation into caste conditions . . . ​, an inner group and not an integral part of the American nation.” 65 With regard to their oppression and denial of civil rights, Du Bois recognized the lack of justice in the courts, but emphasized the greater indignities and vio­lence resultant from being “subject to peculiar and galling sorts of injustice in daily life.” 66 He noted thousands w ­ ere lynched without trial, and many more faced continuous mob vio­lence and “ judicial lynching.” The enforcement of Jim Crow laws fell as much on the shoulders of the bus driver and the attendant at the diner c­ ounter as it did on professional police. Lynching in the South and race riots elsewhere w ­ ere a basic part of the production and reproduction of the racial order. The distributed sovereignty inaugurated in the last ­decades of the seventeenth ­century remained a crucial aspect of social control in the first d­ ecades of the twentieth. More than a c­ entury l­ater, we see the same distributed sovereignty acted upon to maintain the racial order in the murder of Trayvon Martin by George Zimmerman, or the slaughter of Ahmaud Arbery by Travis and Gregory McMichael and William “Roddie” Bryan. Beyond explaining how Trayvon Martin and Ahmaud Arbery fit into a historical pattern of racial oppression, what does this all mean for us ­today? Critical theory is defined best with reference to Karl Marx’s famous eleventh thesis. Critical theory forms a praxis, a merger of theory and practice. It is practicable. Its goal is not understanding, but a knowledge that could inform tactics and strategies for action. A theory is not critical ­u nless it forms an impetus to change the object of its analy­sis. The point is to change the world. In the beginning of this book, I argued that more than telling us how to change the world, history can provide us with evidence that we can change the world. The abolitionists helped to precipitate a war that destroyed a slave society and liquidated the planter class. The general strike of enslaved workers effectively ended that war and ushered in a period of radical Reconstruction



Peculiar Institutions

207

that had the potential to overturn the rule of capital, but the counterrevolution of white supremacy succeeded. We can change the world. The con­temporary abolitionist movement aspires not only to abolish police. Like the abolitionist movement of the late eigh­teenth and early nineteenth centuries, it is a movement that aims beyond the narrower question at the center of its proj­ect. Their ­political proj­ect was “the overthrow of a slavery-­based polity,” and the movement was “at the vanguard of antislavery.” 67 Karl Marx saw this movement not only as the vanguard of antislavery but the vanguard of the proletariat, writing in 1860 that the strug­g le to abolish slavery in the United States was “the most momentous ­thing happening in the world ­today.” The abolitionists saw that slavery was a component in a larger system of racial oppression, also criticizing “the criminalization of blackness and the use of capital punishment and force by the state.” 68 Manisha Sinha notes they also “recognized that the oppression of slaves was linked to other wrongs in their world,” and “used the vehicle of antislavery to criticize the demo­cratic pretensions of Western socie­t ies.” 69 The abolitionist approach of ­today “includes strug­g les to dismantle structures of oppression through uncompromising politics, alongside an effort to build new ways to respond to harm, new meanings of justice, and new modes of demo­cratic living.” 70 Radical police abolitionists, McDowell and Fernandez argue, “seek to dismantle not only criminal justice institutions, but also the racial order and the rule of capital.” 71 C.L.R. James said, “­there are par­t ic­u ­lar periods in a ­political situation . . . ​ where it is balanced on a razor’s edge.” 72 For James, the value of history, or more specifically historical materialism, is for the purpose of knowing when we are in the midst of such moments so that we may seize on them. Policing is facing a crisis created by a broad-­based movement that has placed abolition in the p­ opular discourse. A ­ fter having explored the origins of police, recognizing how, from its infancy, it was inextricable from the racial order and the rule of capital, we should see that by pulling at the threads of police, the current movement to abolish police holds the potential to unravel racial capitalism. As Ruth Wilson Gilmore writes, though this is “a nation conceived in the vio­lence of indigenous extermination and chattel slavery, one might think that the governmental agents charged with ‘defense’ and ‘internal pacification’ would have nothing to worry about. But they do have ­things to worry about” as “their opponents work around the clock to abolish policing, prisons, the military, and capitalism.” 73 We are on a razor’s edge. As has been the case in past moments of crisis, the cross-­class alliance of whiteness is a greater impediment to the success of the working class in overturning the rule of capital than the agents of the state who defend it. The role the police of slavery played in fabricating and maintaining the

208

C onc lu si on

dominance of the cap­i­t al­i st class certainly involved ruthless state-­sanctioned vio­lence. But more than coercive force and brutality, it was the role played by the everyday activity of policing that worked to sever class solidarity, foment racial antagonism, and thereby pacify the working class. A radical, multiracial abolitionist movement has the potential of weakening the cross-­ class alliance and manifesting changes as profound t­oday as its historical counter­parts ­were two centuries ago.

Ac k nowl­e dgm e nt s

This book is dedicated to Joel Olson. Other than Karl Marx, no theorist has had a larger impact on the questions I ask in this book, how I endeavored to answer them, and how I analyzed ­t hose answers. As anyone who knew him would tell you, Joel relished a good debate, and we had many. I am certain that he was correct in nearly e­ very disagreement we had. I often wish that he was still around to prove me wrong and set me straight. This book would be better if I could bend his ear. More impor­t ant was his friendship. I am so glad to have known him, to have spent time together with him and Audrey, and to watch their ­children grow up. All books are collective works, and it would be impossible for me to give due credit to all ­those who contributed to the thinking, creative energy, and personal support required to produce this one. I am thankful to Noel Ignatiev for our friendship and discussions of the central arguments in this book. Mark Neocleous’s contribution to critical theory of police and his support as interlocutor ­were crucial in developing the theory of police constructed through this text. Rob Poe read, commented on, and helped to polish the copy of the entire manuscript. Ray Michalowski and Mike King also read the full manuscript and offered necessary feedback. I am grateful to Luis Fernandez for his collaboration, encouragement, and aid. I greatly appreciate the extensive feedback offered by two anonymous peer reviewers. Over many years, the friendship and intellectual stimulation of David Murakami-­Wood and Gretchen Gano have helped to renew my inspiration to continue my research. I deeply appreciate the dedication and aid of my mentors, Langdon Winner, Ned Wood­house, and Nancy D. Campbell. Many of the ideas in this book came to mind through my discussion and agitation with activists that reach back for d­ ecades. T ­ hose involved with the Anarchist Black Cross Federation, Anti-­R acist Action, Bring the Ruckus, Phoenix Copwatch, Occupy Albany, and the Troy Community Alliance against Police Vio­lence ­were crucial to my p­ olitical and intellectual development. Making ­music with Max Popeil, Josh Coletto, Kieran Robbins, Josh Turner, ­Will Savage, Jacob Brady, John Sheldon, Jon Mills, Gandhi Gracia, 209

210

Acknowl­edgments

Justin Went­worth, Steve Niemitz, Arno Noack, Felix Caban, and Cheyanne Gracia has been crucial in renewing my creative energies over the past years, and I cannot thank them enough for it. This is a work of unpaid ­labor. As a contingent faculty member, none of my ­labor spent on research or writing received a wage. Beyond that is the unpaid l­abor that helped support me as I produced it. This book would not exist without Carla Costa’s emotional and physical ­labor. She is a true partner in every­thing, both an anchor and a compass, and an unwavering believer in this book. She read multiple drafts of parts of the book, and helped to clarify, refine, and o ­ rganize my thinking. No words could capture how thankful I am for all she does for me. Most impor­t ant of all, I am thankful to my d­ aughter, Juniper. She is all the motivation I need to keep fighting for a better world. Portions of the preface, chapter 3, and chapter 6 w ­ ere originally published in the article “Policing Race and Racing Police,” in Social Justice 47 nos. 3/4 (2020): 115–136.

Note s

P re face A portion of this preface was originally published in the article “Policing Race and Racing Police,” in Social Justice 47, nos. 3/4 (2020): 115–136. 1. Samuel Walker and Charles M. Katz, The Police in Amer­i­ca, 9th ed. (New York: McGraw Hill, 2011), 33. 2. Walker and Katz, The Police in Amer­i­ca, 32. 3. K.  B. Turner, David Giacopassi, and Margaret Vandiver, “Ignoring the Past: Coverage of Slavery and Slave Patrols in Criminal Justice Texts,” Journal of Criminal Justice Education 17, no. 1 (2006): 181–195. 4. Samuel Walker and Molly Brown, “A Pale Reflection of Real­ity: The Neglect of Racial and Ethnic Minorities in Introductory Criminal Justice Textbooks,” Journal of Criminal Justice Education 6, no. 1 (1995): 61–83. 5. Samuel Walker, ­Popular Justice: A History of American Criminal Justice (New York: Oxford University Press, 1980). 6. Aaron Fichtelberg, Criminal [In]Justice: A Critical Introduction (Los Angeles: Sage Publications, 2020), xxvi. 7. Fichtelberg, Criminal [In]Justice, 114. 8. Fichtelberg, Criminal [In]Justice, 119. 9. Fichtelberg, Criminal [In]Justice, 177. 10. Markus Dirk Dubber, The Police Power: Patriarchy and the Foundations of American Government (New York: Columbia University Press, 2005), xiii. 11. Wilbur  R. Miller, Cops and Bobbies: Police Authority in New York and London, 1830–1870 (Chicago: University of Chicago Press, 1977), x. 12. According to Mark Neocleous, “from roughly the time of the revolution Americans had a range of alternative options regarding the best polity open to them; it is at this moment that the language of police entered American ­political discourse.” Specifically, in 1779, early in Thomas Jefferson’s term as governor of ­Virginia, he proposed the position of Chair in Law and Police at the College of William and Mary. See Mark Neocleous, The Fabrication of Social Order: A Critical Theory of Police Power (London: Pluto Press, 2000), 31. 13. Robert Orwell, Masters, Slaves, and Subjects: The Culture of Power in the South Carolina Low Country, 1740–1790 (Ithaca, NY: Cornell University Press), 19. 14. Orwell, Masters, Slaves, and Subjects. 15. Mike Brogden, “The Emergence of the Police: The Colonial Dimension,” British Journal of Criminology 27, no. 1 (1987): 4–14. 16. Eric  H. Monkkonen, Police in Urban Amer­i­ca: 1860–1920 (Cambridge: Cambridge University Press, 1981), 37. 17. Monkkonen, Police in Urban Amer­i­ca. 18. Nigel File and Chris Power, eds., Black Settlers in Britain 1555–1958 (London: Heinemann Educational Books, 1981), 28, 31.

211

212

Notes to Pages xi–xvii

19. File and Power, Black Settlers in Britain, 27. 20. File and Power, Black Settlers in Britain, 35. 21. File and Power, Black Settlers in Britain, 49–52. 22. Reynolds’s Weekly Newspaper, October 6, 1850, 5. Thanks to Tyler Wall for this reference. 23. Monkkonen, Police in Urban Amer­ic­ a, 64. 24. Mark  H. Moore and George  L. Kelling, “ ‘To Serve and Protect’: Learning from Police History,” Public Interest 7 (1983), 49–65; George  L. Kelling and Mark H. Moore, “The Evolving Strategy of Policing,” Perspectives on Policing 4 (November  1988). Kelling was trained in social work, worked as a childcare counselor and a probation officer, and was an architect with James Q. Wilson of broken win­dows policing. See Sam Roberts, “George L. Kelling, a F ­ ather of ‘Broken Win­dows’ Policing, is Dead at 83,” New York Times, May  15, 2019, https://­w ww​.­nytimes​.­com​/­2 019​/­05​/­15​/­obituaries​/­g eorge​-­kelling​-­dead​.­html. Moore is a public administration scholar and a leading critic of service-­oriented public management, advocating the very value-­based management styles that contributed to the 2008 financial crisis. 25. Moore and Kelling, “The Evolving Strategy of Policing,” 3. 26. Moore and Kelling, “The Evolving Strategy of Policing.” 27. Moore and Kelling, “The Evolving Strategy of Policing,” 4. 28. Raymond Fosdick, American Police Systems (New York: C ­ entury, 1920), 3. 29. Fosdick, American Police Systems, 4. 30. Fosdick, American Police Systems. 31. Fosdick, American Police Systems. 32. Fosdick, American Police Systems, 6. 33. J.  C. Schneider, Detroit and the Prob­lem of Order, 1830–1880: A Geography of Crime, Riot, and Policing (Lincoln: University of Nebraska Press, 1980), 77–83. 34. Fosdick, American Police Systems, 7. 35. Fosdick, American Police Systems. 36. Khalil Gibran Muhammad, The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban Amer­i­ca (Cambridge, MA: Harvard University Press, 2010), 6–7. 37. Monkkonen, Police in Urban Amer­ic­ a, 63. 38. Richard J. Lundman, Police and Policing: An Introduction (New York: Holt, Rinehart, and Winston, 1980); Monkkonen, Police in Urban Amer­ic­ a. 39. “The police law of slavery” is a novel phrasing borrowed from Bradley J. Nicholson. See “­Legal Borrowing and the Origins of Slave Law in the British Colonies,” American Journal of L ­ egal History 38, no. 1 (1994): 38–54. 40. A comparative study of the ­English colonies on the mainland with the Spanish colonies would show that ­England was unique in nearly always using whites exclusively for slave control and in developing a binary approach to race. 41. Thomas J. ­Little, “The South Carolina Slave Laws Reconsidered, 1670–1700,” South Carolina Historical Magazine 94, no. 2 (1993): 101. 42. Sally Hadden, Slave Patrols: Law and Vio­lence in V ­ irginia and the Carolinas (Cambridge, MA: Harvard University Press, 2000). 43. Philip L. Reichel, “Southern Slave Patrols as a Transitional Police Type,” American Journal of Police 7 (1988): 51–77. 44. Moore and Kelling, “The Evolving Strategy of Policing,” 51. 45. Orwell, Masters, Slaves, and Subjects, 19. 46. Reichel, “Southern Slave Patrols,” 52. 47. Reichel, “Southern Slave Patrols.” 48. Reichel, “Southern Slave Patrols.”



Notes to Pages xvii–4

213

49. Some recent studies by historians are exceptions to this tendency, perhaps signaling a welcome shift in police history. Adam Malka, The Men of Mobtown: Policing Baltimore in the Age of Slavery and Emancipation (Chapel Hill: University of North Carolina Press, 2018); Sam Mitrani, The Rise of the Chicago Police Department: Class and Conflict, 1850–1894 (Urbana: University of Illinois Press, 2013); Simon Balto, Occupied Territory: Policing Black Chicago from Red Summer to Black Power (Chapel Hill: University of North Carolina Press, 2019). 50. Christopher D. O’Connor and Phillip C. Shon, “Civilising the Police: Reconceptualising the Role of the State in Theories of American Policing,” Global Crime 20, no. 1 (2019): 51. See also Neocleous, The Fabrication of Social Order, ix. 51. Meghan  G. McDowell and Luis  A. Fernandez, “ ‘Disband, Disempower, and Disarm’: Amplifying the Theory and Practice of Police Abolition,” Critical Criminology 26 (2018): 388.

I ntroduction 1. Walter Benjamin, Illuminations: Essays and Reflections, edited by Hannah Arendt (New York: Schocken Books, 2007), 263, 262. 2. Benjamin, Illuminations, 262, 257. 3. Benjamin, Illuminations, 256. 4. Benjamin, Illuminations, 257. 5. Katherine Howlett Hayes, Slavery before Race: ­Europeans, Africans, and Indians at Long Island’s Sylvester Manor Plantation, 1651–1884 (New York: New York University Press, 2013), 40. 6. James Truslow Adams, Amer­i­c a’s Tragedy (New York: Charles Scribner’s Sons, 1934), 393. An early use of the phrase “that old fear of insurrection” is found in Harriet Beecher Stowe’s Dred: A Tale of the G ­ reat Dismal Swamp, vol. 2 (Leipzig: Bernhard Tauchnitz, 1856), 261. 7. Benjamin, Illuminations, 257. 8. Friedrich Engels, Socialism: Utopian and Scientific (Chicago: Charles  H. Kerr, 1908), 23. 9. Friedrich Engels, “Letters on Historical Materialism,” in The Marx-­Engels Reader, 2nd ed., edited by Robert C. Tucker (New York: W. W. Norton, 1978), 760. It is crucial to avoid finding in the phrase “the ultimately determining ele­ ment” a sort of teleology, b­ ecause the class strug­g le is dialectical, not linear. 10. George Plekhanov, The Materialist Conception of History (New York: International Publishers, 1940), 20. 11. Plekhanov, The Materialist Conception of History, 256. 12. C.L.R. James, You ­Don’t Play with Revolution: The Montreal Lectures of C.L.R. James, edited by David Austin (Oakland: AK Press, 2009), 122. 13. Karl Marx, The Eigh­teenth Brumaire of Louis Bonaparte (New York: International Publishers, 1963), 15. 14. Michel Foucault, “Critical Theory/Intellectual History,” in Politics, Philosophy, Culture: Interviews and Other Writings, 1977–1984, edited by Lawrence D. Kritzman (New York: Routledge, 1988), 37. 15. Foucault, “Critical Theory/Intellectual History.” 16. The “angel of history” in Walter Benjamin’s “­Theses on the Philosophy of History” is an allegory exploring a tendency to treat history as ­little more than a collection of the stories of ­those the historicist feels compelled to redeem. He writes of the Angelus Novus that “His eyes are staring, his mouth is open, his wings are spread. This is how one pictures the angel of history. His face is turned toward the past. Where we perceive a chain of events, he sees one single ­

214

Notes to Pages 4–10

catastrophe which keeps piling wreckage upon wreckage and hurls it in front of his feet. The angel would like to stay, awaken the dead, and make ­whole what has been smashed.” See Benjamin, Illuminations, 257. 17. Friedrich Nietz ­sche, Untimely Meditations, translated by R. J. Hollingdale (New York: Cambridge University Press, 1997), 67. 18. Nietz ­sche, Untimely Meditations, 69. 19. Nietz ­sche, Untimely Meditations, 70. 20. Karl Marx, Capital, vol. 1 (New York: Penguin Books, 1976), 104. 21. Oliver ­Cromwell Cox, Caste, Class, and Race (New York: Monthly Review Press, 1959), xi. 22. Quoted in Jose Itzigsohn and Karida Brown, The Sociology of W.E.B. Du Bois: Racialized Modernity and the Global Color Line (New York: New York University Press, 2020), 65. 23. Nietz ­sche, Untimely Meditations, 65. 24. Nietz ­sche, Untimely Meditations, 67. 25. Nietz ­sche, Untimely Meditations, 72. 26. Nietz ­sche, Untimely Meditations, 65. 27. Nietz ­sche, Untimely Meditations. 28. Cox, Caste, Class and Race; F. James Davis, Who Is Black? One’s Nation Definition (University Park: Pennsylvania State University Press, 1992), 4–5. 29. Egon Bittner, The Functions of the Police in Modern Society (Rockville, MD: National Institute of ­Mental Health, Center for Studies of Crime and Delinquency, 1970). Jean-­Paul Brodeur considers Bittner’s “Police Use of Force Paradigm” the “standard theory” in police studies. See Jean-­Paul Brodeur, The Policing Web (New York: Oxford University Press, 2010). 30. Carl  B. Klockars, The Idea of Police (Beverley Hills: Sage Publications, 1985), 9–10. 31. Mark Neocleous, “Security, Liberty and the Myth of Balance: T ­ owards a ­Critique of Security Politics,” Con­temporary ­Political Theory 6, no.  2 (2007): 131–149. 32. Max Weber, “Politics as a Vocation,” in Max Weber: Essays in Sociology, edited by H. Gerth and C.  W. Mills (New York: Oxford University Press, 1946), 77–128. 33. Mark Neocleous, The Fabrication of Social Order: A Critical Theory of Police Power (London: Pluto Press, 2000), 21. 34. Loïc Wacquant, “Deadly Symbiosis: When Ghetto and Prison Meet and Mesh,” Punishment & Society 3, no. 1 (2001): 98–99. 35. Wacquant, “Deadly Symbiosis.” 36. David Garland, Peculiar Institution: Amer­i­ca’s Death Penalty in an Age of Abolition (Cambridge, MA: Belknap Press, 2010). 37. Garland, Peculiar Institution, 12–13. 38. Dorothy E. Roberts, “Constructing a Criminal Justice System ­Free of Racial Bias: An Abolitionist Framework,” Columbia ­ Human Rights Law Review 39 (2007): 273. 39. Roberts, “Constructing a Criminal Justice System,” 262. 40. Ben Brucato, “The Fabrication of the Color Line in a White Democracy: From Slave Catchers to Petty Sovereigns,” Theoria 61 (2014): 30–54. 41. The Statutes at Large: Being a Collection of All Laws of ­V irginia, from the First Session of the Legislature, in the Year 1619, edited by William Waller Hening (New York: R. & W. & G. Bartow, 1823), 481–482. 42. Weber, “Politics as a Vocation,” 78. 43. The Statues at Large, 481–482. 44. The Statutes at Large, 86–88.



Notes to Pages 11–15

215

45. New York Times Magazine, August 18, 2019. 46. According to Nikole Hannah-­Jones, “Our founding ideals of liberty and equality ­were false when they ­were written. Black Americans fought to make them true. Without this strug­g le Amer­i­ca would have no democracy at all.” New York Times Magazine, August 18, 2019, 16. 47. Michael Guasco, “The Fallacy of 1619: Rethinking the History of Africans in Early Amer ­i­ca,” Black Perspectives, September  4, 2017, https://­w ww​.­a aihs​.­org​ /­t he​-­f allacy​-­of​-­1619​-­rethinking​-­t he​-­h istory​-­of​-­a fricans​-­i n​-­early​-­a merica​/­. 48. James, You ­D on’t Play with Revolution, 129. 49. Marx, Capital, vol. 1, 168. 50. Peter  J. Parish, Slavery: History and Historians (New York: Harper and Row, 1989), 13. 51. An observation made by many, from John C. Calhoun to W.E.B. Du Bois. 52. Eric Williams, Capitalism and Slavery (Chapel Hill: University of North Carolina Press, 1944), 17. 53. Orlando Patterson, Slavery and Social Death: A Comparative Study (Cambridge, MA: Harvard University Press, 1982), vii. 54. Sherrill  D. Wilson, New York City’s African Slaveowners: A Social and Material Culture History (New York: Garland Publishing, 1994), 14. The discussion of slavery from a global perspective, however, requires a very loose conceptualization of slavery, owner­ship, and property. See Wilson, New York City’s African Slaveowners, 13–16. 55. Ira Berlin, Many Thousands Gone: The First Two Centuries of Slavery in North Amer­i­c a (Cambridge, MA: Belknap Press, 1998), 8. 56. Berlin, Many Thousands Gone. 57. Berlin, Many Thousands Gone. 58. Lerone Bennett Jr., The Shaping of Black Amer­i­ca: The Strug­gles and Triumphs of African-­Americans, 1619 to the 1990s (New York: Penguin Books, 1993), 7. 59. Parish, Slavery, 14. 60. Bennett, The Shaping of Black Amer­i­ca, 9. 61. Bennett, The Shaping of Black Amer­i­ca, 10. Theodore W. Allen refers to indentured servants as chattel slaves on the grounds that their contract could be sold without their consent. Technically true, this nonetheless obscures the more general understanding of chattel slaves as being h ­ uman property owned for life. For female chattel slaves, their bondage also entailed that their c­ hildren would also be born into a lifetime of servitude. See Theodore W. Allen, The Invention of the White Race: The Origins of Racial Oppression in Anglo Amer­i­ca, vol. 2 (New York: Verso, 1997). 62. Michael Guasco, Slaves and En­glishmen: ­Human Bondage in the Early Modern Atlantic World (Philadelphia: University of Pennsylvania Press, 2016), 8–9. 63. David Eltis, “The Total Product of Barbados, 1664–1701,” Journal of Economic History 55, no. 2 (1995): 336. 64. Bennett, The Shaping of Black Amer­i­ca, 11. 65. Patterson, Slavery and Social Death, vii. 66. Rodney D. Coates, “Law and the Cultural Production of Race and Racialized Systems of Oppression: Early American Court Cases,” American Behavioral Science 47, no. 3 (2003): 331. 67. Frank Tannenbaum, Slave and Citizen: The Negro in the Amer­i­cas (New York: Alfred A. Knopf, 1947), 117. 68. Tannenbaum, Slave and Citizen. 69. All counts of slave trafficking in this section of the book are from David Eltis, “A Brief Overview of the Trans-­Atlantic Slave Trade,” Slave Voyages: The Trans-­ Atlantic Slave Trade Database, https://­w ww​.­s lavevoyages​.­org ​/­voyage​/­about.

216

Notes to Pages 16–24

70. Guasco. Slaves and En­glishmen, 87. 71. Allen, The Invention of the White Race, vol. 2, 12. 72. Williams, Capitalism and Slavery, 10. 73. Parish, Slavery, 12. 74. Parish, Slavery. 75. Guasco, Slaves and En­glishmen. 76. Eric Williams, From Columbus to Castro: The History of the ­Caribbean (New York: Vintage Books, 1984), 30. 77. Williams, From Columbus to Castro, 47. 78. Williams, From Columbus to Castro, 86. 79. Alan Gallay, “Indian Slavery in the Amer­i­cas,” The Gilder Lehrman Institute of American History, n.d., http://­ap​.­g ilderlehrman​.­org​/­essay​/­indian​-­slavery​-­americas. 80. Hilary  M. Beckles, The First Black Slave Society: Britain’s “Barbarity Time” in Barbados, 1636–1876 (Kingston: University of the West Indies Press, 2016), 31. 81. Guasco, Slaves and En­glishmen, 39. 82. Guasco, Slaves and En­glishmen, 86. 83. Guasco, Slaves and En­glishmen, 96. 84. Heikki Mikkeli, ­Europe as an Idea and an Identity (New York: St. Martin’s Press, 1998). 85. Cedric Robinson refers to intra-­European ethnocentrism as “racialism,” signifying a dif­fer­ent conception of race from the one used in this text. See Cedric J. Robinson, Black Marxism: The Making of the Black Radical Tradition (Chapel Hill: University of North Carolina Press, 1983). 86. George L. Mosse, ­Toward the Final Solution: A History of E ­ uropean Racism (Madison: University of Wisconsin Press, 1978). 87. David R. Roediger, How Race Survived U.S. History: From Settlement and Slavery to the Obama Phenomenon (New York: Verso, 2008), 22. 88. Daniel  C. Littlefield, Rice and Slaves: Ethnicity and the Slave Trade in Colonial South Carolina (Urbana: University of Illinois Press, 1991). 89. Peter H. Wood, Black Majority: Negroes in Colonial South Carolina from 1670 through the Stono Rebellion (New York: W. W. Norton, 1996), 179. 90. In Guasco, Slaves and En­glishmen, 83. 91. Guasco, Slaves and En­glishmen, 176. 92. Guasco, Slaves and En­glishmen, 83. 93. Guasco, Slaves and En­glishmen, 119. 94. Guasco, Slaves and En­glishmen, 176. 95. Ivan Hannaford, Race: The History of an Idea in the West (Baltimore: Johns Hopkins University Press, 1996), 146. 96. Mosse, ­Toward the Final Solution, xxix. 97. H. G. Koenigsberger, George L. Mosse, and G. Q. Bowler, ­Europe in the Sixteenth ­Century, 2nd ed. (London: Routledge, 1989), 257. 98. This section heading borrows a novel phrasing from Bradley  J. Nicholson, “­L egal Borrowing and the Origins of Slave Law in the British Colonies,” American Journal of L ­ egal History 38, no. 1 (1994): 38–54. 99. This is, of course, with the exception of convicts and debtors, a millennia-­old tradition that remains with most of the world t­ oday. 100. Hannaford, Race, 210. 101. Williams, Capitalism and Slavery, 20. 102. Bennett, The Shaping of Black Amer­i­ca, 9. 103. The Statutes at Large, 86–88. 104. Sally Hadden, Slave Patrols: Law and Vio­lence in V ­ irginia and the Carolinas (Cambridge, MA: Harvard University Press, 2001), 17.



Notes to Pages 24–29

217

105. Hadden, Slave Patrols, 18. 106. Christian Parenti, “Policing the Color Line,” The Nation, September 13, 2001, https://­w ww​.­t henation​.­com​/­a rticle​/­a rchive​/­policing​-­color​-­l ine​/­. 107. Hadden, Slave Patrols, 72. 108. G. Rawick, From Sundown to Sunup: The Making of the Black Community (Westport, CT: Greenwood, 1972), 151. 109. Rawick, From Sundown to Sunup, 150. 110. Anthony Paul Farley, “­Toward a General Theory of Antiblackness,” in Antiblackness, edited by Moon-­K ie Jung and João H. Costa Vargas (Durham, NC: Duke University Press, 2021), 102.

Part I 1. Joel Olson, American Zealot, unpublished manuscript. 2. Stanley M. Elkins, Slavery: A Prob­lem in American Institutional and Intellectual Life (Chicago: University of Chicago Press, 1976). 3. Meghan  G. McDowell and Luis  A. Fernandez, “ ‘Disband, Disempower, and Disarm’: Amplifying the Theory and Practice of Police Abolition,” Critical Criminology 26 (2018): 388.

Chap te r 1   The Pec uli ar Institution of Pol i c e 1. Carl B. Klockars, The Idea of Police (Beverly Hills: Sage Publications, 1985), 8. 2. Mark Neocleous, The Fabrication of Social Order: A Critical Theory of Police Power (London: Pluto Press, 2000), ix. 3. ­There are recent exceptions to Neocleous’s critique within ­these disciplines that are critical and theoretically rich. Impor­tant in developing critical theory of con­temporary policing in the United States are Tyler Wall, David Correia, Travis Linneman, Brendan McQuade, Ana Muniz, Luis Fernandez, and Meghan McDowell. Though light on theoretical content, Alex Vitale’s The End of Police provides a power­ful critique of con­temporary U.S. police practice. Alex Vitale, The End of Police (New York: Verso, 2019). This work tends to shift the tendency of critical criminologists to focus on law, crime, and prisons, and instead centers on police, and adds to a minor lit­er­a­ture in critical criminology that applies instrumentalist Marxist theory of law to police. By instrumentalist, I refer to the common perspective in critical criminology that sees the state, law, and its criminal justice institutions as instruments of the cap­i­t al­ist class, with Richard Quinney being one ­founder of this perspective. Such approaches can be found in: Institute for the Study of ­L abor and Economic Crisis, Iron Fist and the Velvet Glove: An Analy­sis of U.S. Police (San Francisco: Synthesis Publications, 1975); Randall G. Sheldon, Controlling the Dangerous Classes: A Critical Introduction to the History of Criminal Justice (Boston: Allyn and Bacon, 2001). 4. While light on theory, some work on the margins of criminology focuses on the enduring use of police to control Blacks in the United States: Sandra Bass, “Policing Race, Policing Space,” Social Justice 28, no.  1 (2001): 156–176; Ellis Cashmore and Eugene McLaughlin, eds., Out of Control: Policing Black ­People (London: Routledge, 1991), in which the majority of chapters focus on ­G reat Britain; W. Martin Dulaney, Black Police in Amer­i­ca (Bloomington: Indiana University Press, 1996); Robert  F. Wintersmith, Police and the Black Community (Lexington, MA: Lexington Books, 1974). The “racial threat” lit­er­ a­ture is extensive but claims l­ittle more than that where one finds a high percentage Black population, one is likely to find more policing, e.g., in the form of

218

Notes to Pages 29–33

disproportionate arrests and/or a high police–­population ratio. While illuminating for a more robust theory of race and police, this lit­er­a­t ure does more to show how l­imited the scope of theory is in ­t hese fields. 5. Sidney Harring, Policing Class Society, 2nd  ed. (Chicago: Haymarket Books, 2017). 6. Christopher D. O’Connor and Phillip C. Shon, “Civilising the Police: Reconceptualising the Role of the State in Theories of American Policing,” Global Crime 20, no. 1 (2019): 51. Some recent studies by historians are exceptions to this tendency, perhaps signaling a welcome shift in police history. Adam Malka, The Men of Mobtown: Policing Baltimore in the Age of Slavery and Emancipation (Chapel Hill: University of North Carolina Press, 2018); Sam Mitrani, The Rise of the Chicago Police Department: Class and Conflict, 1850–1894 (Urbana: University of Illinois Press, 2013); Simon Balto, Occupied Territory: Policing Black Chicago from Red Summer to Black Power (Chapel Hill: University of North Carolina Press, 2019). 7. Neocleous, The Fabrication of Social Order. See also Mark Neocleous, Administering Civil Society: ­Toward a Theory of State Power (London: St.  Martin’s Press, 1996); Mark Neocleous, War Power, Police Power (Edinburgh: Edinburgh University Press, 2014). 8. Neocleous, The Fabrication of Social Order, 17. 9. Neocleous, Administering Civil Society. 10. Karl Marx, Capital, vol. 1 (New York: Penguin Classics, 1976), 896. 11. In Marx, Capital, vol. 1, 898–899. 12. Neocleous, The Fabrication of Social Order, 101, 143. 13. Neocleous, The Fabrication of Social Order, 31. 14. Bass, “Policing Race, Policing Space,” 158. 15. See Jordan  T. Camp and Christina Heatherton, Policing The Planet: Why the Policing Crisis Led to Black Lives ­Matter (New York: Verso, 2016); Angela  J. Davis, Policing The Black Man (New York: Pantheon, 2017); Derecka Purnell, Becoming Abolitionists: Police, Power, and the Pursuit of Freedom (New York: As­tra Publishing, 2021); Beth Richie, Arrested Justice: Black ­ Women, Vio­ lence, and Amer ­i­c a’s Prison Nation (New York: New York University Press, 2012); Andrea Ritchie, Invisible No More: Police Vio­lence against Black W ­ omen and W ­ omen of Color (Boston: Beacon Press, 2017); Kristian Williams, Our Enemies in Blue: Police and Power in Amer ­i­c a, 3rd ed. (Oakland: AK Press, 2015). 16. Arthur Niederhoffer, ­B ehind the Shield: The Police in Urban Society (Garden City, NY: Anchor Books, 1967), 11. 17. Williams, Our Enemies in Blue, 53. 18. Raymond Fosdick, American Police Systems (New York: C ­ entury Com­pany, 1920) 67. 19. Eric H. Monkkonen, Police in Urban Amer­i­ca, 1860–1920 (Cambridge: Cambridge University Press, 1981), 53. 20. Philip L. Reichel, “The Misplaced Emphasis on Urbanization in Police Development,” Policing and Society 3, no. 1 (1992): 1–12. 21. Philip L. Reichel, “Southern Slave Patrols as a Transitional Police Type,” American Journal of Police 7 (1988): 51–77. 22. Neocleous, The Fabrication of Social Order, 5, emphasis original. 23. Neocleous, The Fabrication of Social Order, xi. 24. Ronald L. Jepperson, “Institutions, Institutional Effects, and Institutionalism,” in The New Institutionalism in O ­ rganizational Analy­sis, edited by Walter Powell and Paul DiMaggio (Chicago: University of Chicago Press, 1991), 145. 25. Peter  L. Berger and Thomas Luckmann, The Social Construction of Real­ity: A Treatise in the Sociology of Knowledge (Garden City, NY: Anchor Books, 1966);



Notes to Pages 33–37

219

Paul DiMaggio and Walter Powell, “The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in ­O rganizational Fields,” American ­S ociological Review 48, no. 2 (1983): 147–160; Ben Brucato, “From Accountability Policy to Surveillance Practices in Higher Education,” in The Surveillance-­ Industrial Complex: A ­Political Economy of Surveillance, edited by Kirstie Ball and Laureen Snider (New York: Routledge, 2013), 158–174. 26. DiMaggio and Powell, “The Iron Cage Revisited,” 151. 27. DiMaggio and Powell, “The Iron Cage Revisited.” 28. David H. Bayley, “The Development of Modern Policing,” in Policing Perspectives: An Anthology, edited by Larry  K. Gaines and Gary  W. Corderner (Los Angeles: Roxbury Publishing, 1998), 67–69, 75. 29. Bayley, “The Development of Modern Policing,” 67. 30. David H. Bayley, Patterns of Policing (New Brunswick, NJ: Rutgers University Press, 1990), 7. 31. Egon Bittner, The Functions of the Police in Modern Society: A Review of Background ­Factors, Current Practices, and Pos­si­ble Role Models (Chevy Chase, MD: National Institute of ­Mental Health, 1970). 32. Bittner, The Functions of the Police in Modern Society, 41. 33. Klockars, The Idea of Police, 9–10. This phrasing is remarkably similar to Max Weber’s in discussing the state: “If no social institutions existed which knew the use of vio­lence, then the concept of ‘state’ would be eliminated.” H.  H. Gerth and C. Wright Mills, eds., From Max Weber: Essays in Sociology (New York: Oxford University Press, 1946), 78. 34. Jerome H. Skolnick, “Changing Conceptions of the Police,” in The Civil Police: A Symposium, edited by William Benton (Chicago: Encyclopedia Britannica, 1972), 56. 35. Micol Siegel, Vio­lence Work: State Power and the Limits of Police (Durham, NC: Duke University Press, 2018), 9. 36. Bittner, The Functions of Police, 38. 37. Bittner, The Functions of Police, 39. I return to the question of citizen demand ­later in the chapter. 38. Peter K. Manning, Police Work: The Social ­O rganization of Policing (Cambridge, MA: MIT Press, 1977), 40. 39. Manning, Police Work, 40. 40. Manning, Police Work. 41. Siegel, Vio­lence Work, 9. 42. Neocleous, The Fabrication of Social Order, 96. 43. Bittner, The Functions of Police, 45. 44. Bittner, The Functions of Police. 45. Peter K. Manning, “The Police: Mandate, Strategies, and Appearances,” in The Police and Society: Touchstone Readings, 4th ed., edited by Victor E. Kappeler and Brian P. Schaefer (Long Grove, IL: Waveland Press, 2017), 98. 46. Manning, “The Police,” 101–102. 47. Manning, “The Police,” 110. 48. Skolnick, “Changing Conceptions of the Police,” 41. 49. Manning, Police Work, 101–102. 50. Manning, Police Work, 102. 51. Jean-­Paul Brodeur, The Policing Web (New York: Oxford University Press, 2010), 118. 52. Brodeur, The Policing Web, 118. 53. Brodeur, The Policing Web. 54. Quoted in Brodeur, The Policing Web, 118. 55. Bittner, The Functions of the Police, 51.

220

Notes to Pages 37–43

56. Neocleous, The Fabrication of Social Order, 16. 57. Bittner, The Functions of the Police, 39. 58. Bittner, The Functions of the Police, 74. 59. Brodeur, The Policing Web, 119. 60. Bittner, The Functions of the Police, 40. 61. Bittner, The Functions of the Police, 41. 62. Bittner, The Functions of the Police, 42. 63. Bittner, The Functions of the Police, 74. 64. Manning, “The Police,” 110. 65. Neocleous, The Fabrication of Social Order, 64. Neocleous does not appear to be influenced directly by Manning in any way. T ­ here are differences between their conceptions of mandate, but t­hese are not immediately relevant to the subject at hand. 66. Neocleous, The Fabrication of Social Order, x. 67. Neocleous, The Fabrication of Social Order, 117. 68. Neocleous, The Fabrication of Social Order, 100. 69. Neocleous, The Fabrication of Social Order, xii. 70. Neocleous, The Fabrication of Social Order, 65. 71. Neocleous, The Fabrication of Social Order, 65. 72. Neocleous, The Fabrication of Social Order, xii. 73. Sven Beckert and Seth Rockman, Slavery’s Capitalism: A New History of American Economic Development (Philadelphia: University of Pennsylvania Press, 2016), 12. 74. See Mike Brogden, “The Emergence of the Police: The Colonial Dimension,” British Journal of Criminology 27, no.  1 (1987): 4–14. Brogden argues that the colonial origins of British police depict the suppression of rebellion as the core of the police mandate, and that this carried over into E ­ ngland. 75. Robert Reiner, The Politics of the Police, 4th ed. (New York: Oxford University Press, 2010), 3. 76. Neocleous, The Fabrication of Social Order, xi. 77. Neocleous, The Fabrication of Social Order. The observation that police must be defined with reference to the state is in line with the basic conception of police in Marxist criminology. Raymond Michalowski defines policing as “the use of state power by delegated authorities for the purposes of law enforcement and the maintenance of order.” See Raymond J. Michalowski, Order, Law, and Crime: An Introduction to Criminology (New York: McGraw-­H ill, 1985), 170. 78. Friedrich Engels, The Origins of the F ­ amily, Private Property, and the State (New York: Penguin Classics, 2010), 210. 79. Engels, The Origins of the ­Family. 80. Sidney  L. Harring, “Policing a Class Society: The Expansion of the Urban Police in the Late Nineteenth and Early Twentieth Centuries,” in Crime and Capitalism: Readings in Marxist Criminology, expanded and updated ed., edited by David F. Greenberg (Philadelphia: T ­ emple University Press, 1993), 551. 81. Max Weber, “Politics as a Vocation,” in Max Weber: Essays in Sociology, edited by H. Gerth and C. W. Mills (New York: Oxford University Press, 1946), 78, emphasis original. 82. Klockars, The Idea of Police, 12. 83. Neocleous, The Fabrication of Social Order, 118. 84. Bob Jessop, in Neocleous, Administering Civil Society, xxi. 85. Beckert and Rockman, Slavery’s Capitalism, 12. 86. Neocleous, The Fabrication of Social Order, 117. 87. Reuben Jonathan Miller, Lester Jackson Kern, and Ayanna Williams, “The Front End of the Carceral State: Police Stops, Court Fines, and the Racialization of Due ­Process,” Social Science Review 92, no. 2 (2018): 290–303.



Notes to Pages 43–46

221

88. This section makes clear that police is not defined by law, law enforcement, or crime-­fi ghting, and so addressing police only through law is bound to produce a ­limited—­even an incorrect—­u nderstanding of police. In critical race theory, ­because its institutional history has remained more focused on law, the scant attention provided to police tends to define it relative to the law and by law enforcement. In the first d­ ecades of critical race theory, police was not on the radar. Consider Richard Delgado’s and Jean Stefancic’s exhaustive annotated bibliography of the first d­ ecades in the field, where the word “police” appears only once. See Richard Delgado and Jean Stefancic, “Critical Race Theory: An Annotated Bibliography,” ­V irginia Law Review 79, no. 2 (1993): 461–516. Fourteen years l­ater, the same authors reported that “although Critical Race Theory has provided many useful insights, it has largely left crime and criminal justice unexplored.” While critical race theory may not provide much in the way of a theory of police, the field is responsible for making clearer, more than any other, the interpenetration of race and the administration of law. Richard Delgado and Jean Stefancic, “Critical Race Theory and Criminal Justice,” Humanity & Society 31, nos. 2–3 (2007): 133. 89. I credit my student Edniaris Miranda Ayala for clarifying my thinking on this ­m atter. 90. See Trevor George Gardner, “Police Vio­lence and the African American Procedural Habitus,” Boston University Law Review 100 (2020): 849–893. Gardner argues that the expectation that Blacks be exceptionally deferent becomes internalized among Blacks. This encourages the overpolicing of Blacks, ­because the p­ erformance of excessive deference lowers the cost of race-­based stops, thereby incentivizing them. 91. Manning, Police Work, 106–107. 92. Neocleous, The Fabrication of Social Order, 103. 93. Manning, Police Work, 101. 94. Neocleous, The Fabrication of Social Order, 103. 95. Neocleous, The Fabrication of Social Order, 100. 96. Mark  H. Moore and George  L. Kelling, “ ‘To Serve and Protect’: Learning from Police History,” Public Interest 7 (1983): 49–65; George  L. Kelling and Mark H. Moore, “The Evolving Strategy of Policing,” Perspectives on Policing 4 (November  1988). Kelling was trained in social work, worked as a childcare counselor and a probation officer, and was an architect with James Q. Wilson of broken win­dows policing. See Sam Roberts, “George L. Kelling, a ­Father of ‘Broken Win­dows’ Policing, Is Dead at 83,” New York Times, May 15, 2019, https://­ www​.­nytimes​.­com​/­2 019​/­05​/­15​/­obituaries​/­g eorge​-­kelling​-­dead​.­html. Moore is a public administration scholar and a leading critic of service-­oriented public management, advocating the very value-­based management styles that contributed to the 2008 financial crisis. 97. Wilbur  R. Miller, Cops and Bobbies (Columbus: Ohio State University Press, 1977), 13. 98. Skolnick, “Changing Conceptions of the Police,” 456. 99. Manning, Police Work, 106–107. 100. Neocleous, The Fabrication of Social Order, 95. 101. Neocleous, The Fabrication of Social Order, 97. 102. Neocleous, The Fabrication of Social Order, 32. 103. Neocleous, The Fabrication of Social Order, 108. 104. Neocleous, The Fabrication of Social Order, 109. 105. Neocleous, The Fabrication of Social Order, 32. 106. Neocleous, The Fabrication of Social Order, 41. 107. Neocleous, The Fabrication of Social Order, 109.

222

Notes to Pages 46–51

108. Neocleous, The Fabrication of Social Order, 99. 109. Mark Neocleous, “Security, Liberty and the Myth of Balance: ­Towards a Critique of Security Politics,” Con­temporary ­Political Theory 6, no.  2 (2007): 131–149. 110. John Locke, Two Treatises of Government, edited by Peter Laslett (New York: Cambridge University Press, 1988), 375. 111. Mark Neocleous, Critique of Security (Montreal: McGill-­Q ueen’s University Press), 19. 112. Neocleous, Critique of Security, 18. 113. Quoted in Neocleous, “Security, Liberty and the Myth of Balance,” 140. 114. Neocleous, “Security, Liberty and the Myth of Balance,” 141. 115. Neocleous, “Security, Liberty and the Myth of Balance,” 142. 116. Alexander Hamilton, “The Federalist, 70,” in Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, edited by Lawrence Goldman (New York: Oxford University Press, 2008), 344. 117. Neocleous, Critique of Security, 26. 118. Brad Hinshelwood, “The Carolinian Context of John Locke’s Theory of Slavery,” ­Political Theory 41, no. 4 (2013): 577. 119. Hinshelwood, “The Carolinian Context,” 576. This was ­later struck but then reintroduced in the 1698 edition, which Locke did not have a hand in writing. 120. Locke, Two Treatises of Government, 284–285. 121. Manning, Police Work, 102. 122. Carl Schmitt, ­Political Theology, translated by George Schwab (Cambridge, MA: MIT Press, 1985), 13. 123. Neocleous, The Fabrication of Social Order, 118. 124. Schmitt, ­Political Theology, 5. 125. Schmitt, ­Political Theology, 13. 126. Neocleous, The Fabrication of Social Order, 106. 127. Steve Martinot, “The Militarisation of Police,” Social Identities 9, no. 2 (2003): 211. 128. Micol Siegel, Vio­lence Work: State Power and the Limits of Police (Durham, NC: Duke University Press, 2018), 9. 129. Guillermina Seri, “ ‘All the P ­ eople Necessary W ­ ill Die to Achieve Security,’ ” in Anti-­S ecurity, edited by Mark Neocleous and George Rigakos (Ottawa: Red Quill Books, 2011), 250. 130. Martinot, “The Militarisation of Police,” 211. 131. Martinot, “The Militarisation of Police.” 132. Weber, “Politics as a Vocation,” 78. 133. Siegel, Vio­lence Work, 12. 134. Siegel, Vio­lence Work, 12. 135. Frank Richard Prassel, The Western Police Officer: A Legacy of Law and Order (Norman: University of Oklahoma Press, 1972), 126. 136. Alexis de Tocqueville, Democracy in Amer ­i­c a, vol. 1, translated by Henry Reeve (New York: J. & H. G. Langley, 1841), 98. Given that Neocleous finds the origins of the police concept also in France, de Tocqueville’s observation ­here alone serves as reason to reform Neocleous’s theories. 137. De Tocqueville, Democracy in Amer ­i­c a, vol. 1, 488. 138. Martin Alan Greenberg, Citizens Defending Amer­i­ca: From Colonial Times to the Age of Terrorism (Pittsburgh: University of Pittsburgh Press, 2005). 139. Klockars, The Idea of Police, 11. 140. Greenberg, Citizens Defending Amer­i­c a, xviii–­x ix. 141. Greenberg, Citizens Defending Amer­i­c a, 38. 142. Greenberg, Citizens Defending Amer­i­c a, 30.



143. 144. 145. 146. 147. 148. 149.

Notes to Pages 52–55

223

Greenberg, Citizens Defending Amer­i­c a, 36–37. Greenberg, Citizens Defending Amer­i­c a, 6 Klockars, The Idea of Police, 30. Klockars, The Idea of Police. Klockars, The Idea of Police, 30–31. Klockars, The Idea of Police, 31. Klockars, The Idea of Police, 32.

Chap te r 2   The Pec uli ar Institution of R ace 1. Ivan Hannaford, Race: The History of an Idea in the West (Baltimore: Johns Hopkins University Press, 1996), 7. 2. For an elaboration on the benefits of a bipolar analy­sis, see Joel Olson, The Abolition of White Democracy (Minneapolis: University of Minnesota Press, 2006), 25–30. 3. Oliver ­Cromwell Cox, Caste, Class, and Race (New York: Monthly Review Press, 1959), 353. 4. Cox, Caste, Class, and Race. The objection that Native Americans should be centered in the analy­sis of race is reasonable, but the reason why they are not in this specific instance can highlight the attributes in the definition of race built ­here. Indigenes are clearly best opposed to settlers in analy­sis of colonialism as fundamentally antagonistic. The relationship between British occupiers and the Native inhabitants was defined chiefly along a Christian–­heathen dichotomy. Culture—­ i ncluding religion, ethnicity, nationality, language—­ a nd national sovereignty established the E ­ nglish orientation to indigenes. Whereas the Spanish and Portuguese tended to forcibly assimilate ­t hose they conquered into a common economy and polity with the occupiers, the E ­ nglish relationship with indigenes was that of separate nations, with the settlers initially and for some time showing l­ittle interest in assimilating natives. Oliver C ­ romwell Cox describes race relations as one of frequent interface between groups that live among one another. As Audrey Smedley points out, ­English settlers in North Amer­i­ca generally kept the indigenes they lived among and conquered at considerable geo­graph­i­c al and social distance, and their antagonistic disposition ­toward the indigenes is best characterized as E ­ nglish ethnic chauvinism. Smedley explains that the colonization of Ireland prefigured the attitudes of the ­English ­toward the indigenes, an attitude that “came close to being racial.” See Audrey Smedley, “ ‘Race’ and the Construction of ­Human Identity,” American Anthropologist 100, no.  3 (1998): 694. If ­t hese attitudes are close to being racial, they borrow racial qualities from elsewhere, i.e., from relations that are racial. Thus, the latter appropriately define race where the former cannot. The ways that race l­ater informed the treatment of indigenous ­people is another ­m atter entirely. 5. Winthrop Jordan, “American Chiaroscuro: The Status and Definition of Mulattoes in the British Colonies,” William and Mary Quarterly 19, no. 2 (1962): 184–185. 6. Theodore W. Allen, The Invention of the White Race, vol. 1: Racial Oppression and Social Control (New York: Verso, 1994), 35–51, 110–114. The description of a system of national oppression and labeling of the “tri-­partite social order” of the West Indies (112) is an in­ter­e st­ing comparison against Oliver ­Cromwell Cox’s systems of race relations. Allen’s separation of national and racial oppression is effectively elaborated in his discussion of the experience of Blacks who immigrated to the United States from the West Indies, who transitioned from a system of national oppression to one of racial oppression. See also Noel Ignatiev, How the Irish Became White (New York: Routledge, 1995), 35.

224

Notes to Pages 55–57

7. David Roediger, The Wages of Whiteness (New York: Verso, 1991), 172. On the ­m atter of chattel slavery being driven by economic imperatives, see Eric Williams, Capitalism and Slavery (Chapel Hill: University of North Carolina Press, 1944), 3–29. 8. Each of ­t hese is elaborated and rejected by Joel Olson in The Abolition of White Democracy (Minneapolis: University of Minnesota Press, 2004), 3–9. 9. Audrey Smedley and Brian D. Smedley, “Race as Biology Is Fiction, Racism as a Social Prob­lem Is Real: Anthropological and Historical Perspectives on the Social Construction of Race,” American Psychologist 60, no. 1 (2005): 16. 10. Evelyn Fox Keller, The ­Century of the Gene (Cambridge, MA: Harvard University Press, 2002). 11. Pierre  L. van den Berghe, Race and Racism: A Comparative Perspective (New York: Wiley, 1967), 24. 12. See Ignatiev, How the Irish Became White; Allen, The Invention of the White Race, vol. 1. 13. Van den Berghe, Race and Racism, 13. 14. Frank M. Snowden Jr., Before Color Prejudice: The Ancient View of Blacks (Cambridge, MA: Harvard University Press, 1983) 67. 15. Snowden, Before Color Prejudice, 63. 16. Snowden, Before Color Prejudice. 17. Katherine Howlett Hayes, Slavery before Race: ­Europeans, Africans, and Indians at Long Island’s Sylvester Manor Plantation, 1651–1884 (New York: New York University Press, 2013), 7. 18. Cox, Caste, Class, and Race, 321. 19. Karl Marx, 1859 Preface to A Contribution to the Critique of ­Political Economy, in Collected Works, 1857–1861, vol. 29 (London: Lawrence & Wishart, 1987), 263. 20. Karen E. Fields and Barbara J. Fields, Racecraft: The Soul of I­ nequality in American Life, (New York: Verso, 2014), 117. 21. Williams, Capitalism and Slavery, 1944. 22. Hannaford, Race, 8. 23. Hannaford, Race, 9. 24. Olson, The Abolition of White Democracy, 43. Though Blacks w ­ ere defined by their being enslaved, this hardly means that all Blacks w ­ ere slaves. That citizenship was racialized as white does not mean that all whites received all of the privileges of citizenship, nor that all Blacks ­were deprived of all such privileges. As Sherrill D. Wilson concisely states: “While ­free Africans ­were collectively granted only what Ira Berlin calls ‘quasi-­free’ status, they ­were indeed ­free to pursue some of the ventures and privileges open to whites in American society. ­T hese ‘privileges’ included, in some places, the freedom of p­ eople of color to vote (males), run businesses, schools, create churches and other voluntary associations and o ­rganizations. In colonies and early states f­ree Africans w ­ ere allowed to participate in the business of owning ‘­human property.’ ” See Sherrill D. Wilson, New York City’s African Slaveowners: A Social and Material Culture History (New York: Garland Publishing, 1994), x. 25. Olson, The Abolition of White Democracy, 45. 26. Cedric  J. Robinson, Black Marxism: The Making of the Black Radical Tradition (Chapel Hill: University of North Carolina Press, 1983), 4. 27. Jodi Melamed, “Racial Capitalism,” Critical Ethnic Studies 1, no. 1 (2015): 76–85. 28. Sven Beckert and Seth Rockman, eds., Slavery’s Capitalism (Philadelphia: University of Pennsylvania Press, 2016), 10. 29. Jose Itzigsohn and Karida L. Brown, The Sociology of W.E.B. Du Bois: Racialized Modernity and the Global Color Line (New York: New York University Press,



Notes to Pages 57–61

225

2020), 66. This quote is intended to recognize that colonialism made a crucial contribution to the development and maturation of capitalism, even though, admittedly, a limitation of this book is that it has l­ ittle to say about colonialism, per se. 30. W.E.B. Du Bois, “The Trade in Men,” in Black Folk, Then and Now: An Essay in the History and Sociology of the Negro Race (New York: Oxford University Press, 2007), 99. 31. Karl Marx, The Poverty of Philosophy (London: Martin Lawrence ­Limited, n.d.), 94. 32. Williams, Capitalism and Slavery. 33. Caitlin Rosenthal, Accounting for Slavery: Masters and Management (Cambridge, MA: Harvard University Press, 2018). 34. Olson, The Abolition of White Democracy, xii. 35. Olson, The Abolition of White Democracy. 36. W.E.B. Du Bois, Dusk of Dawn (New York: Oxford University Press, 2007), 67. 37. W.E.B. Du Bois, Black Reconstruction in Amer­i­ca (New York: Oxford University Press, 2007), 573. 38. Olson, The Abolition of White Democracy, 17. 39. Du Bois, Black Reconstruction, 573. 40. Cox, Caste, Class, and Race, xxxii. 41. Du Bois, Black Reconstruction, 11. 42. See Loïc Wacquant, “Deadly Symbiosis: When Ghetto and Prison Meet and Mesh,” Punishment and Society 3, no. 1 (2001): 95–134; Loïc Wacquant, “From Slavery to Mass Incarceration: Rethinking the ‘Race Question’ in the US,” New Left Review 13 (2002): 41–60. While the pre­sent approach to race-­m aking builds on Wacquant’s work, it does not introduce two of his errors: his characterization of U.S. race relations as a caste system, and his characterization of the early colonial economy as precapitalist. For an elaborate rejection of the caste argument, see Cox, Caste, Class and Race. The argument against the notion that the plantation economy was precapitalist, see Beckert and Rockman, Slavery’s Capitalism. 43. Wacquant, “Deadly Symbiosis,” 54. 44. Wacquant, “Deadly Symbiosis.” 45. Wacquant, “Deadly Symbiosis.” 46. The idea of whiteness as property has been discussed by Cheryl Harris, George Lipsitz, and Saidiya Harman. See Cheryl Harris, “Whiteness as Property,” Harvard Law Review 106, no. 8 (1993): 1707–1791; George Lipsitz, The Possessive Investment in Whiteness (Philadelphia: ­Temple University Press, 1998); and Saidiya Hartman, Scenes of Subjection (New York: Oxford University Press, 1997), especially pp. 115–123. 47. Orlando Patterson calls this “the extrusive mode” of social death. See Slavery and Social Death (Cambridge, MA: Harvard University Press, 1982), 41. 48. Olson, The Abolition of White Democracy, xv. 49. Olson, The Abolition of White Democracy, xv. 50. Zoe Samudzi and Willam C. Anderson, As Black as ­R esistance: Finding the Conditions for Liberation (Oakland: AK Press, 2018), 9. 51. Anthony Paul Farley, “­Toward a General Theory of Anti-­Blackness,” in Anti-­ Blackness, edited by Moon-­K ie Jung and João H. Costa Vargas (Durham, NC: Duke University Press, 2021), 83. 52. Olson, The Abolition of White Democracy, 43; Roediger, The Wages of Whiteness, 57. 53. Patterson, Slavery and Social Death, 42. 54. Patterson, Slavery and Social Death, 39. 55. Michel Foucault, The Punitive Society: Lectures at the College de France, 1972–1973, translated by Graham Burchell (New York: Palgrave MacMillan, 2015), 33.

226

Notes to Pages 61–65

56. Gerald Horne, The Counter-­R evolution of 1776: Slave ­R esistance and the Origins of the United States of Amer­i­c a (New York: New York University Press, 2014), 31. 57. Olson, The Abolition of White Democracy, 37–38. 58. Horne, The Counter-­R evolution of 1776, 77. 59. Lerone Bennett Jr., The Shaping of Black Amer­i­ca (New York: Penguin Books, 1993), 17. 60. Heikki Mikkeli, ­Europe as an Idea and an Identity (London: Palgrave MacMillan, 1998), 39–40. 61. Michael Guasco, Slaves and En­glishmen: ­Human Bondage in the Early Modern Atlantic World (Philadelphia: University of Pennsylvania Press, 2014). 62. Bennett, The Shaping of Black Amer­i­ca, 19. 63. Cox, Caste, Class, and Race, 332. 64. Cox, Caste, Class, and Race. 65. Ira Berlin, Many Thousands Gone: The First Two Centuries of Slavery in North Amer­i­c a (Cambridge, MA: Harvard University Press, 1998), 10. 66. Edmund S. Morgan, American Slavery, American Freedom: The Ordeal of Colonial ­V irginia (New York: W. W. Norton, 1975). 67. Bennett, The Shaping of Black Amer­i­ca, 11. 68. Guasco, Slaves and En­glishmen. 69. Morgan, American Slavery, 565. 70. Margaret Ellen Newell, Brethren by Nature: New E ­ ngland Indians, Colonists, and the Origins of American Slavery (Ithaca, NY: Cornell University Press, 2015). 71. Alan Gallay, The Indian Slave Trade: The Rise of the E ­ nglish Empire in the American South, 1670–1717 (New Haven, CT: Yale University Press, 2002). 72. Newell, Brethren by Nature. 73. Bennett, The Shaping of Black Amer­i­ca, 19. 74. Berlin, Many Thousands Gone, 99. 75. Allen, The Invention of the White Race. 76. Du Bois, Black Reconstruction, 573. 77. Olson, The Abolition of White Democracy, 37. 78. Robinson, Black Marxism. Robinson refers to intra-­European ethnocentrism as “racialism,” signifying a dif­fer­ent conception of race from the one used in this text. 79. Melamed, “Racial Capitalism,” 80. 80. Karl Marx, Capital, vol. 1 (London: Penguin Books, 1976), 873. 81. From 1852 to nearly 1861, Marx wrote for the New-­York Daily Tribune, where he frequently wrote about slavery and abolition in the United States. In addition to his journalistic writing, during t­ hese years Marx’s correspondence regularly addressed slavery and the strug­g le for its abolition. In a January 11, 1860, letter to Engels, Marx wrote, “In my view, the most momentous ­t hing happening in the world t­oday is the slave movement.” See Andrew Zimmerman, ed., The Civil War in the United States: Karl Marx and Friedrich Engels (New York: International Publishers, 1961), 17. 82. Du Bois, Black Reconstruction. See also Olson, The Abolition of White Democracy, 11–12. 83. Robert Orwell, Masters, Slaves, and Subjects: The Culture of Power in the South Carolina Low Country, 1740–1790 (Ithaca, NY: Cornell University Press, 1998), 166. 84. Melamed, “Racial Capitalism,” 77. 85. See Sylvia Federici, Caliban and the Witch (Brooklyn: Autonomedia, 1998); Robinson, Black Marxism. 86. Olson, The Abolition of White Democracy, 11. 87. Melamed, “Racial Capitalism.”



Notes to Pages 66–70

227

88. Archives of ­Maryland, Legislative Rec­ords: Proceedings, Acts and Public Documents of the General Assembly, vol. 1, 533. Available at Archives of ­M aryland Online, https://­m sa​.­m aryland​.­gov​/­megafile​/­m sa​/­speccol​/­sc2900​/­sc2908​/­html​/­legislative​ .­html. 89. Peter  J. Parish, Slavery: History and Historians (New York: Harper and Row, 1989), 23. 90. Wacquant, “Deadly Symbiosis,” 122. 91. For an extended accounting of the binary quality of race in the United States, see Olson, The Abolition of White Democracy, 19–30. 92. Wacquant, “Deadly Symbiosis,” 22. 93. Mark Neocleous, The Fabrication of Social Order (London: Pluto Press, 2000), xiii. 94. Michael Goldfield, The Color of Politics: Race and the Mainsprings of American Politics (New York: New Press, 1997); Allen, The Invention of the White Race. 95. Marx, Capital, vol. 3, in Collected Works, vol. 37 (London: Lawrence and Wishart, 1998), 778. 96. Marx, Capital, vol. 3. 97. Friedrich Engels, in Collected Works, vol. 24 (London: Lawrence and Wishart, 1989), 467–468. 98. Neocleous, The Fabrication of Social Order, xiii. 99. Carl B. Klockars, The Idea of Police (Beverly Hills: Sage Publications, 1985), 12. 100. Mark Neocleous, Imagining the State (Maidenhead, UK: Open University Press, 2003), 91. 101. W.E.B. Du Bois, The Souls of Black Folk (New York: Oxford University Press, 2007), 121. 102. With influences from Open Marxism similar to Neocleous’s, Todd Gordon provides an analy­sis of con­temporary Canadian police that parallels the one provided h ­ ere. In Canada, settler colonialism and race have worked to create a population within the state’s territory that is nonetheless denied citizenship. Todd Gordon, Cops, Crime, and Capitalism: The Law-­and-­Order Agenda in Canada (Halifax: Fernwood Publishing, 2006), 30–50. 103. Du Bois, Black Reconstruction, 573. Nikhil Singh similarly notes, “given its broad significance, it is surprising that the concept of police has not been more central within scholarly discussions of whiteness and its history.” See Nikhil Pal Singh, “The Whiteness of Police,” American Quarterly 66, no. 4 (2014): 1097. I am indebted to Noel Ignatiev for sharpening my analy­sis in this book. Over years we returned to his position that Allen established that the reason police ­were not needed in colonial Amer­i­ca was that they had white p­ eople. On this we had no disagreement, except that I argue police and white ­people ­were in fact synonymous. So, instead, the colonies needed police, so they made white p­ eople. 104. Singh, “The Whiteness of Police,” 1098. 105. Singh, “The Whiteness of Police,” 573–574. 106. Du Bois, Black Reconstruction, 8. 107. Sally Hadden, Slave Patrols: Law and Vio­lence in V ­ irginia and the Carolinas (Cambridge, MA: Harvard University Press, 2001), 17. 108. Hadden, Slave Patrols, 18. 109. Bennett, The Shaping of Black Amer­i­ca, 224. 110. Bennett, The Shaping of Black Amer­i­ca. 111. Bennett, The Shaping of Black Amer­i­ca, 224–225. 112. Christian Parenti, “Policing the Color Line,” The Nation, September 13, 2001, https://­w ww​.­t henation​.­com​/­a rticle​/­a rchive​/­policing​-­color​-­l ine​/­. 113. Hadden, Slave Patrols, 72. 114. Philip L. Reichel, “The Misplaced Emphasis on Urbanization in Police Development,” Policing and Society 3, no. 1 (1992): 4.

228

Notes to Pages 70–80

115. Hadden, Slave Patrols, 207. 116. Steve Martinot, “The Militarisation of Police,” Social Identities 9, no. 2 (2003): 215. 117. Martinot, “The Militarisation of Police.” 118. Martinot, “The Militarisation of Police,” 213. 119. Martinot, “The Militarisation of Police.” 120. Martinot, “The Militarisation of Police.” 121. This is an updating of Robert Reiner’s “police fetishism.” See Robert Reiner, The Politics of the Police, 4th ed. (New York: Oxford University Press, 2010), 3. 122. Angela  J. Hattery and Earl Smith, Policing Black Bodies: How Black Lives Are Surveilled and How to Work for Change (Lanham, MD: Rowman & Littlefield, 2017), 8. 123. Hattery and Smith, Policing Black Bodies, 8–9. Hattery and Smith extend this variety too broadly for pre­sent purposes, by including ­things like “defining what hair styles are ‘acceptable’ ” and the negative public responses to Colin Kaepernick for his refusing to stand during the playing of the National Anthem, thus making policing ­l ittle more than a synonym for social control. A narrower version of their definition is partial but ser­v iceable, and is supported by the history discussed in the chapters that follow. 124. Gunnar Myrdal, An American Dilemma: The Negro Prob­lem and Modern Democracy (New York: Harper and B ­ rothers, 1944), 535. 125. Myrdal, An American Dilemma, 536. 126. Myrdal, An American Dilemma.

Part II 1. The title of this part borrows a novel phrasing from Bradley  J. Nicholson, “­L egal Borrowing and the Origins of Slave Law in the British Colonies,” American Journal of L ­ egal History 38, no. 1 (1994): 38–54.

Chap te r 3   Th e Ge ne sis of R ac e i n Coloni al ­Vi rg i ni a 1. David Eltis, “The Total Product of Barbados, 1664–1701,” Journal of Economic History 55, no. 2 (1995): 321–338, 336. 2. William Waller Hening, ed., The Statutes at Large; Being a Collection of All the Laws of ­V irginia from the First Session of the Legislature, in the Year 1619, vol. 1 (New York: R. & W. & G. Bartow, 1823), 57–58. 3. Hening, The Statutes at Large, vol. 1, 64. 4. Warren M. Billings, “The Law of Servants and Slaves in Seventeenth-­Century ­Virginia,” ­V irginia Magazine of History and Biography 99 (1991): 46. 5. Theodore W. Allen, The Invention of the White Race, vol. 2 (New York: Verso, 1997), 75. 6. See Mark Neocleous, The Fabrication of Social Order (London: Pluto Press, 2000), particularly chapter 1. 7. Allen, The Invention of the White Race, vol. 2, 75. 8. Allen, The Invention of the White Race, vol. 2. 9. Allen, The Invention of the White Race, vol. 2, 78. 10. Allen, The Invention of the White Race, vol. 2, 79. 11. All population figures in this chapter, except where noted, are from the U.S. Census, Bicentennial Edition: Historical Statistics of the United States, Colonial Times to 1970, chapter Z, “Colonial and Pre-­Federal Statistics.”



Notes to Pages 80–85

229

12. Allen, The Invention of the White Race, vol. 2, 76. 13. Allen, The Invention of the White Race, vol. 2, 84–85. 14. Allen, The Invention of the White Race, vol. 2, 85. 15. Brad Hinshelwood, “The Carolinian Context of John Locke’s Theory of Slavery,” ­Political Theory 41, no. 4 (2013): 578. 16. Hinshelwood, “The Carolinian Context,” 8. 17. Hinshelwood, “The Carolinian Context.” 18. Michael Guasco, Slaves and En­glishmen: ­Human Bondage in the Early Modern Atlantic World (Philadelphia: University of Pennsylvania Press, 2016), 1. 19. Herbert Moller, “Sex Composition and Correlated Culture Patterns of Colonial Amer ­i­ca,” William and Mary Quarterly 2, no. 2 (1945): 114. 20. Peter  J. Parish, Slavery: History and Historians (New York: Harper and Row, 1989), 13. 21. Guasco, Slaves and En­glishmen, 91. 22. Guasco, Slaves and En­glishmen, 94. 23. David R. Roediger, How Race Survived U.S. History: From Settlement and Slavery to the Obama Phenomenon (New York: Verso, 2008), 4. 24. Parish, Slavery, 13. 25. Parish, Slavery. 26. A. Leon Higginbotham Jr., Shades of Freedom: Racial Politics and Presumptions of the American ­L egal ­P rocess (New York: Oxford University Press, 1996), 20. 27. Higginbotham, Shades of Freedom, 20–21. 28. Higginbotham, Shades of Freedom, 25. 29. This explanation differs from Higgenbotham’s, as he emphasizes that “to be whipped in front of blacks would have been especially humiliating, ­because he would have been debased in front of individuals who ­were his ­legal inferiors” (Higginbotham, Shades of Freedom, 26). In this account, Higginbotham imposes race, an institution that did not yet exist, on the past. Elsewhere, in discussing a 1641 case, Higginbotham refers to “the system of non-­indentured black servants” (Higginbotham  Jr., Shades of Freedom, 24). As we have already seen above, t­ here was not yet such a system. 30. Jonathan L. Alpert, “The Origin of Slavery in the United States—­T he ­M aryland Pre­ce­dent,” American Journal of L ­ egal History 14, no. 3 (1970): 189–221. 31. Alpert, “The Origin of Slavery in the United States,” 190. 32. Anthony S. Parent Jr., Foul Means: The Formation of a Slave Society in V ­ irginia, 1660–1740 (Chapel Hill: University of North Carolina Press, 2003), 108–109. 33. Parent, Foul Means, 109. 34. H. R. McIlwane, ed., Minutes of the Council and General Court of Colonial ­V irginia 1622–1632, 1670–1676 (Richmond: Library of ­Virginia, 1924), 467. 35. Rodney D. Coates, “Law and the Cultural Production of Race and Racialized Systems of Oppression: Early American Court Cases,” American Behavioral Science 47, no. 3 (2003): 333. 36. McIlwane, Minutes, 467. 37. Hening, The Statutes at Large, vol. 1, 254–255. 38. Hening, The Statutes at Large, vol. 1. 39. Hening, The Statutes at Large, vol. 1. 40. Northampton County Order Book 1655–1668, in Warren M. Billings, ed., The Old Dominion in the Seventeenth C ­ entury: A Documentary History of V ­ irginia, 1606–1689 (Chapel Hill: University of North Carolina Press, 1975), 180–181. 41. Sherrill  D. Wilson, New York City’s African Slaveowners: A Social and Material Culture History (New York: Garland Publishing, 1994), 3. 42. Billings, “The Law of Servants and Slaves in Seventeenth-­Century ­Virginia,” 56.

230

Notes to Pages 86–94

43. William Waller Hening, ed., The Statutes at Large; Being a Collection of All the Laws of V ­ irginia from the First Session of the Legislature, in the Year 1619, vol. 2 (New York: R. & W. & G. Bartow, 1823), 26. 44. Bradley J. Nicholson, “­L egal Borrowing and the Origins of Slave Law in the British Colonies,” The Journal of L ­ egal History 38, no. 1 (1994): 42–43. 45. Nicholson, “­L egal Borrowing and the Origins of Slave Law,” 44. 46. Hening, The Statutes at Large, vol. 2, 170. 47. Hening, The Statutes at Large, vol. 2. 48. In Alpert, “The Origins of Slavery,” 195. 49. Alpert, “The Origins of Slavery,” 194–195. 50. Alpert, “The Origins of Slavery,” 195. 51. Alpert, “The Origins of Slavery,” 194. 52. Alpert, “The Origins of Slavery,” 192. 53. Hening, The Statutes at Large, vol. 2, 260. 54. Hening, The Statutes at Large, vol. 2. 55. In Alpert, “The Origins of Slavery,” 196. 56. Alpert, “The Origins of Slavery,” 196. 57. Hening, The Statutes at Large, vol. 2, 481–482. 58. Hening, The Statutes at Large, vol. 2. 59. Hening, The Statutes at Large, vol. 2. 60. Hening, The Statutes at Large, vol. 2. 61. Hening, The Statutes at Large, vol. 2. The ­people granted this authorization may not have been understood as white at the time, but the practical effect of the law was that it applied as such. 62. Hening, The Statutes at Large, vol. 2, 270. 63. Early on, when starvation was rampant, the colonial administrators did place some limits on the destruction of livestock. 64. Already, laws enacted in Barbados between 1644 and 1661 had treated “negro” and “slave” as interchangeable terms, with no exception for mulattoes or ­others with mixed ancestry. See Jerome S. Handler, “Custom and Law: The Status of Enslaved Africans in Seventeenth-­Century Barbados,” Slavery & Abolition 37 (2016): 233–255. 65. Hening, The Statutes at Large, vol. 2, 86–88. 66. Hening, The Statutes at Large, vol. 2. 67. Hening, The Statutes at Large, vol. 2. 68. Daniel O. Sayers, “Diasporan Exiles in the G ­ reat Dismal Swamp, 1630–1860,” Transforming Anthropology 14, no. 1 (2006): 12. 69. Sayers, “Diasporan Exiles in the G ­ reat Dismal Swamp.” 70. Guasco, Slaves and En­glishmen. 71. Roediger, How Race Survived U.S. History, 28. 72. Hening, The Statutes at Large, vol. 2, 86–88. 73. Hening, The Statutes at Large, vol. 2. 74. Moller, “Sex Composition and Correlated Culture Patterns of Colonial Amer­ i­ca,” 118. 75. Parish, Slavery, 11. 76. Guasco, Slaves and En­glishmen, 225. 77. Eric Williams, From Columbus to Castro: The History of the ­Caribbean (New York: Vintage Books, 1984), 103–104. 78. Parish, Slavery, 14. 79. Gerald Horne, The Counter-­R evolution of 1776: Slave ­R esistance and the Origin of the United States of Amer­i­c a (New York: New York University Press, 2014), 31. 80. Roedier, How Race Survived U.S. History, 5. 81. Parish, Slavery, 14.



Notes to Pages 94–98

231

82. Parish, Slavery, 23. 83. Horne, The Counter-­R evolution of 1776, 11–12. 84. J. Chetwynd, P. Doeminique, M. Bladen, and E. Ashe, “Sept. 8, 1721. State of the British Plantations in Amer­i­ca,” in Documents Relative to the Colonial History of  the State of New York, vol. 5, edited by Edmund  B. O’Callaghan (Albany: Weed, Parsons and Com­pany, 1855), 591–630. 85. T.  R. Davis noted nearly a ­century ago that “the status of the Negro in the early period, like slavery itself, was purely a local development. . . . ​T he motives which determined the growth of white servitude and Negro slavery are peculiar to the social and economic conditions of the colony of V ­ irginia and its neighbors, whose inhabitants w ­ ere primarily imported settlers and laborers.” T. R. Davis, “Negro Servitude in the United States: Servitude Distinguished from Slavery,” Journal of Negro History 8, no. 3 (1923): 253. 86. Christian R. Burset, “Why ­D idn’t the Common Law Follow the Flag?” ­V irginia Law Review 105, no. 3 (2019): 483. 87. Billings, “The Law of Servants and Slaves in Seventeenth-­Century ­Virginia,” 56.

Chap te r 4   The Fi r st B lac k Slave Society This chapter title borrows from the title of Hilary McD. Beckles’s book, The First Black Slave Society: Britain’s “Barbarity Time” in Barbados, 1636–1876 (Kingston: University of the West Indies Press, 2016). 1. Hilary McD. Beckles and Andrew Downes, “The Economics of Transition to the Black ­L abor System in Barbados, 1630–1680,” Journal of Interdisciplinary History 18, no. 2 (1987): 225–247. 2. Jerome  S. Handler, “Custom and Law: The Status of Enslaved Africans in Seventeenth- ­Century Barbados,” Slavery & Abolition 37, no. 2 (2016): 233–255. 3. Beckles and Downs, “The Economics of Transition.” 4. Beckles and Downs, “The Economics of Transition.” 5. Beckles and Downs, “The Economics of Transition.” 6. Beckles and Downs, “The Economics of Transition,” 227. 7. Beckles, The First Black Slave Society, 38–39; see also Michael Guasco, Slaves and En­glishmen: ­Human Bondage in the Early Modern Atlantic World (Philadelphia: University of Pennsylvania Press, 2016). 8. Beckles, The First Black Slave Society, 48. 9. Beckles and Downes, “The Economics of Transition,” 227. 10. Anthony S. Parent Jr., Foul Means: The Formation of a Slave Society in V ­ irginia, 1660–1740 (Chapel Hill: University of North Carolina Press 2003), 108. 11. Handler, “Custom and Law,” 16. 12. Handler, “Custom and Law,” 16. 13. David Eltis, “The Total Product of Barbados, 1664–1701,” Journal of Economic History 55, no. 2 (1995): 336–337. 14. Beckles and Downes, “The Economics of Transition,” 228. 15. Beckles and Downes, “The Economics of Transition,” 227. 16. Eltis, “Total Product of Barbados,” 324. 17. Richard S. Dunn, Sugar and Slaves: The Rise of the Planter Class in the ­E nglish West Indies, 1624–1713 (Chapel Hill: University of North Carolina Press, 1972), 96. 18. Eltis, “The Total Product of Barbados,” 326; Dunn, Sugar and Slaves, 1972. 19. Beckles and Downes, “The Economics of Transition,” 227–228. 20. Jerome S. Handler and Frederick W. Lange, Plantation Slavery in Barbados: An Archaeological and Historical Investigation (Cambridge, MA: Harvard University Press, 1978), 21–22.

232

Notes to Pages 98–105

21. Beckles and Downs, “The Economics of Transition,” 227. 22. Beckles, The First Black Slave Society, 3. 23. Beckles and Downs, “The Economics of Transition,” 227. 24. Sidney Mintz, Sweetness and Power: The Place of Sugar in Modern History (New York: Viking, 1985), 43. 25. Mintz, Sweetness and Power. 26. Mintz, Sweetness and Power, 47. 27. Mintz, Sweetness and Power, 46. 28. Richard B. Sheridan, Sugar and Slavery: An Economic History of the British West Indies, 1623–1775 (Baltimore: Johns Hopkins University Press, 1973), 144. 29. Eltis, “Total Product of Barbados,” 324. 30. Eltis, “Total Product of Barbados,” 334. 31. Beckles, The First Black Slave Society, 23. 32. Beckles, The First Black Slave Society, 3. 33. Sir Francis Drake, Sir Francis Drake Revived: Calling upon This Dull and Effeminate Age, to Follow His Noble Steps for Gold and Silver (n.p., 1653), 7. 34. Richard Ligon, A True & Exact History of the Island of Barbadoes (London: Leg and Star, 1673), 98, 105. 35. In Jerome S. Handler, “Slave Revolts and Conspiracies in Seventeenth-­Century Barbados,” New West Indian Guide 56, no. 1/2 (1982): 9. 36. Handler, “Slave Revolts and Conspiracies.” 37. Handler, “Slave Revolts and Conspiracies,” 10. 38. Beckles, The First Black Slave Society, 43. 39. Ligon, A True & Exact History, 43. 40. Ligon, A True & Exact History, 45. 41. Ligon, A True & Exact History, 45–46. 42. Beckles, The First Black Slave Society, 3. 43. Handler, “Slave Revolts,” 7. 44. Ligon, A True & Exact History, 29. 45. Ligon, A True & Exact History, 29. 46. Beckles, The First Black Slave Society, 3. 47. Bradley J. Nicholson, “­L egal Borrowing and the Origins of Slave Law in the British Colonies,” American Journal of L ­ egal History 38, no. 1 (1994): 41, 51. 48. Dunn, Sugar and Slaves, 240. 49. Handler, “Custom and Law,” 12. 50. Beckles, The First Black Slave Society, 3. 51. Nicholson, “­L egal Borrowing,” 51. 52. Dunn, Sugar and Slaves, 240. 53. Dunn, Sugar and Slaves, emphasis added. 54. Sally Hadden, Slave Patrols: Law and Vio­lence in V ­ irginia and the Carolinas (Cambridge, MA: Harvard University Press, 2001), 11. 55. Dunn, Sugar and Slaves, 245–246. 56. Dunn, Sugar and Slaves, 240. 57. Nicholson, “­L egal Borrowing,” 46. 58. Hadden, Slave Patrols, 13. 59. Hadden, Slave Patrols, 12–13. 60. Hadden, Slave Patrols, 13. 61. Ligon, A True & Exact History, 46. As in ­Virginia, we see “Christian” as the identifier of preference for the colonists, only ­later to be replaced reliably by “white.” 62. Beckles, The First Black Slave Society, 161. 63. Ligon, A True & Exact History, 46. 64. Ligon, A True & Exact History.



Notes to Pages 105–111

233

65. Eric Williams, Capitalism and Slavery (Chapel Hill: University of North Carolina Press, 1944), 23. 66. Handler, “Slave Revolts and Conspiracies,” 13. 67. Beckles, The First Black Slave Society, 25. 68. In Handler, “Slave Revolts and Conspiracies,” 13. 69. In Hadden, Slave Patrols, 13. 70. The Laws of Barbadoes, 137, https://­pryan2​.­k ingsfaculty​.­c a​/­pryan​/­a ssets​/­F ile​ /­B arbados%20Slave%20Code%201688%20(repealed%20the%201661%20code)​ .­pdf. 71. The Laws of Barbadoes. 72. In Hadden, Slave Patrols, 12. 73. The Laws of Barbadoes, 144. 74. The Laws of Barbadoes. 75. Beckles, The First Black Slave Society, 22. 76. The Laws of Barbadoes, 139. 77. The Laws of Barbadoes. 78. The Laws of Barbadoes, 143. 79. The Laws of Barbadoes. 80. Hadden, Slave Patrols, 14. 81. Beckles, The First Black Slave Society, 23–24. 82. Beckles, The First Black Slave Society, 133. 83. Beckles, The First Black Slave Society, 153–154. 84. In Beckles, The First Black Slave Society, 156. 85. Beckles, The First Black Slave Society, 156. 86. Beckles, The First Black Slave Society, 157. 87. Beckles, The First Black Slave Society, 159. 88. Attributed to Jack Greene, in Beckles, The First Black Slave Society, 4. 89. Hadden, Slave Patrols, 10. 90. Nicholson, “­L egal Borrowing,” 42. 91. Eltis, “Total Product of Barbados,” 4. 92. Beckles, The First Black Slave Society, 3. 93. Beckles, The First Black Slave Society, 26. 94. In Beckles, The First Black Slave Society, 21. 95. Beckles, The First Black Slave Society, 19. 96. Beckles, The First Black Slave Society, 4. 97. Beckles, The First Black Slave Society, 19. 98. Dunn, Sugar and Slaves, 242. 99. A more qualified claim is attributed to Marcel van der Linden, in Sven Beckert and Seth Rockman, eds., Slavery’s Capitalism (Philadelphia: University of Pennsylvania Press, 2016), 9. 100. Beckles and Downes, “The Economics of Transition,” 226. 101. Attributed to Moses Finley, in Beckles, The First Black Slave Society, 4. 102. Beckles, The First Black Slave Society, 4. 103. Beckles, The First Black Slave Society, 4. 104. Dunn, Sugar and Slaves, 245. 105. Simon P. Newman, A New World of ­L abor: The Development of Plantation Slavery in the British Atlantic (Philadelphia: University of Pennsylvania Press, 2013), 1. 106. Dunn, Sugar and Slaves, 243. 107. Nicholson, “­L egal Borrowing,” 52. 108. Attributed to Jack Greene, in Beckles, The First Black Slave Society, 61. 109. Brad Hinshelwood, “The Carolinian Context of John Locke’s Theory of Slavery,” ­Political Theory 41, no. 4 (2013): 578.

234

Notes to Pages 111–117

110. In Alexander  S. Salley  Jr., ed., Narratives of Early Carolina, 1650–1708 (New York: Charles Scribner’s Sons, 1911), 57. 111. Salley, Narratives of Early Carolina, 60. 112. Salley, Narratives of Early Carolina. 113. Salley, Narratives of Early Carolina. 114. In Thomas J. ­Little, “The South Carolina Slave Laws Reconsidered, 1670–1700,” South Carolina Historical Magazine 94, no. 2 (1993): 87. 115. Hinshelwood, “The Carolinian Context,” 577. 116. Beckles, The First Black Slave Society, 73. 117. ­Little, “Slave Laws Reconsidered,” 90. 118. Nicholson, “­L egal Borrowing,” 41. 119. Beckles, The First Black Slave Society, 70. 120. M. Eugene Sirmans, “Politics in Colonial South Carolina: The Failure of Proprietary Reform, 1682–1694,” William and Mary Quarterly 23, no. 1 (1966): 36. 121. Sirmans, “Politics in Colonial South Carolina,” 35. 122. Sirmans, “Politics in Colonial South Carolina,” 47–51. 123. ­Little, “Slave Laws Reconsidered,” 86–101. 124. ­Little, “Slave Laws Reconsidered,” 101. 125. In Thomas Nairne and John Norris, Selling a New World: Two Colonial South Carolina Promotional Pamphlets, edited by Jack P. Green (Columbia: University of South Carolina Press, 1989), 88–89. Freeman’s remarks ­were a contribution to a promotional tract to entice potential settlers in E ­ ngland, and his depiction of the status of servants in Carolina should be considered with this in mind. 126. Nairne and Norris, Selling a New World, 106. 127. Nairne and Norris, Selling a New World, 86–87. 128. John Locke, Two Treatises of Government, edited by Peter Laslett (New York: Cambridge University Press, 1988), 111. 129. Hinshelwood, “The Carolinian Context,” 576. This was ­later struck but then reintroduced in the 1698 edition, which Locke did not have a hand in writing. 130. Joseph Brevard, ed., An Alphabetical Digest of the Public Statute Law of South Carolina, vol. 2 (Charleston: John Hoff, 1814), 230. 131. Brevard, An Alphabetical Digest. This observation was made by George  M. Stroud in 1854. See George M. Stroud, Stroud’s Slave Laws: A Sketch of the Laws Relating to Slavery in the Several States of the United States of Amer­i­ca (Baltimore: Black Classic Press, 2005), 17. 132. Brevard, An Alphabetical Digest. 133. Brevard, An Alphabetical Digest. 134. Stroud, Stroud’s Slave Laws, 18. 135. Newman, A New World of L ­ abor, 1.

Chap te r 5   Acquiring a S lave Society 1. Thelma ­Wills Foote, Black and White Manhattan: The History of Racial Formation in Colonial New York City (New York: Oxford University Press, 2004), 15. 2. Foote, Black and White Manhattan, 12–13. 3. Foote, Black and White Manhattan, 13. 4. Foote, Black and White Manhattan, 12. 5. Foote, Black and White Manhattan, 7. 6. For an extended discussion of this legend, see Peter Francis, “The Beads That Did ‘Not’ Buy Manhattan Island,” New York History 78, no. 4 (1997): 411–428. My comparison is based on a law discussed ­later in this chapter, which specified “one Fat hog, valued at twenty guilders” as partial payment of an annual fee required of “half-­f ree” slaves for their “half-­f reedom.”



Notes to Pages 117–121

235

7. Ira Berlin, Many Thousands Gone: The First Two Centuries of Slavery in North Amer­i­c a (Cambridge, MA: Belknap Press, 1998), 50. 8. Leslie M. Harris, In the Shadow of Slavery: African Americans in New York City, 1626–1863 (Chicago: University of Chicago Press, 2003), 14. 9. E. B. O’Callaghan, ed., The Laws and Ordinances of New Netherland, 1638–1674 (Albany: Weed, Parsons, and Com­pany, 1868), 7–9. 10. Berlin, Many Thousands Gone, 50. 11. O’Callaghan, The Laws and Ordinances of New Netherland, 10. 12. Berlin, Many Thousands Gone, 51. 13. David Kobrin, The Black Minority in Early New York (Albany: Office of State History, 1971), 18. 14. Harris, In the Shadow of Slavery, 14. 15. Berlin, Many Thousands Gone, 49. 16. Berlin, Many Thousands Gone, 49. 17. Berlin, Many Thousands Gone, 178. 18. O’Callaghan, The Laws and Ordinances of New Netherland, 81. 19. Harris, In the Shadow of Slavery, 15. 20. Harris, In the Shadow of Slavery, 21. 21. Harris, In the Shadow of Slavery, 16. 22. Harris, In the Shadow of Slavery, 58. 23. Harris, In the Shadow of Slavery, 59. 24. Harris, In the Shadow of Slavery, 57. 25. O’Callaghan, The Laws and Ordinances of New Netherland, 23. 26. O’Callaghan, The Laws and Ordinances of New Netherland, 55–56. 27. O’Callaghan, The Laws and Ordinances of New Netherland, 50. 28. O’Callaghan, The Laws and Ordinances of New Netherland, 375. 29. O’Callaghan, The Laws and Ordinances of New Netherland, 24. 30. O’Callaghan, The Laws and Ordinances of New Netherland, 32. 31. O’Callaghan, The Laws and Ordinances of New Netherland, 33. 32. O’Callaghan, The Laws and Ordinances of New Netherland, 155–156. 33. O’Callaghan, The Laws and Ordinances of New Netherland, 156. 34. O’Callaghan, The Laws and Ordinances of New Netherland, 157. 35. O’Callaghan, The Laws and Ordinances of New Netherland. 36. Berlin, Many Thousands Gone, 54. 37. Berlin, Many Thousands Gone, 52–53. 38. Berlin, Many Thousands Gone, 57. 39. Berlin, Many Thousands Gone, 59–60. 40. Harris, In the Shadow of Slavery, 37. 41. O’Callaghan, The Laws and Ordinances of New Netherland, 36. 42. O’Callaghan, The Laws and Ordinances of New Netherland, 36–37. 43. O’Callaghan, The Laws and Ordinances of New Netherland, 37. 44. Berlin, Many Thousands Gone, 52. 45. Berlin, Many Thousands Gone, 51. 46. Harris, In the Shadow of Slavery, 26. 47. Harris, In the Shadow of Slavery, 20. 48. Harris, In the Shadow of Slavery. 49. Harris, In the Shadow of Slavery, 21. 50. Foote, Black and White Manhattan, 94. 51. The Colonial Laws of New York from the Year 1664 to the Revolution, vol. 1 (Albany: James B. Lyon, State Printer, 1894), 49. 52. The Colonial Laws of New York from the Year 1664 to the Revolution, vol. 2 (Albany: James B. Lyon, State Printer, 1894), 84–85, 187. 53. The Colonial Laws of New York, vol. 2, 161.

236

Notes to Pages 121–128

54. The Colonial Laws of New York, vol. 2, 235 55. The Colonial Laws of New York, vol. 2, 161–162. 56. Evelyn L Parks, “From Constabulary to Police Society: Implications for Social Control,” Catalyst 5 (1970): 76–97. 57. The Colonial Laws of New York, vol. 1, 29. 58. The Colonial Laws of New York, vol. 1. 59. The Colonial Laws of New York, vol. 1. 60. The Colonial Laws of New York, vol. 1, 159. 61. The Colonial Laws of New York, vol. 1, 29. 62. The Colonial Laws of New York, vol. 1, 26. 63. The Colonial Laws of New York, vol. 1. 64. Foote, Black and White Manhattan, 91. 65. Foote, Black and White Manhattan, 92. 66. Foote, Black and White Manhattan, 109. 67. Foote, Black and White Manhattan, 111. 68. Foote, Black and White Manhattan. 69. Foote, Black and White Manhattan, 117. 70. Harris, In the Shadow of Slavery, 17. 71. The Colonial Laws of New York, vol. 1, 18. 72. In Jill Lepore, New York Burning: Liberty, Slavery, and Conspiracy in Eighteenth-­ Century Manhattan (New York: Vintage Books, 2005), 183. 73. The Colonial Laws of New York, vol. 1, 597. 74. The Colonial Laws of New York, vol. 1, 598. 75. Foote, Black and White Manhattan, 10. 76. Foote, Black and White Manhattan, 11. 77. Foote, Black and White Manhattan, 94. 78. Foote, Black and White Manhattan, 100. 79. Foote, Black and White Manhattan, 104. 80. Foote, Black and White Manhattan, 105. 81. Foote, Black and White Manhattan, 10. 82. Foote, Black and White Manhattan, 123. 83. Foote, Black and White Manhattan, 111. 84. Foote, Black and White Manhattan, 112. 85. Foote, Black and White Manhattan, 11. 86. Foote, Black and White Manhattan. 87. Harris, In the Shadow of Slavery, 27. 88. Harris, In the Shadow of Slavery, 30. 89. Foote, Black and White Manhattan, 11. 90. Harris, In the Shadow of Slavery, 18. 91. Foote, Black and White Manhattan, 11. 92. Foote, Black and White Manhattan, 12. 93. A few enslaved Native Americans from beyond the bounds of the colony ­were imported and could remain in bondage. See Harris, In the Shadow of Slavery, 28. 94. Foote, Black and White Manhattan, 11. 95. Peter Charles Hoffer, The ­G reat New York Conspiracy of 1741: Slavery, Crime, and Colonial Law (Lawrence: University Press of Kansas, 2003), 30. 96. Hoffer, The ­G reat New York Conspiracy of 1741, 30. 97. Harris, In the Shadow of Slavery, 33. 98. Harris, In the Shadow of Slavery. 99. The Colonial Laws of New York, vol. 1, 157. 100. Harris, In the Shadow of Slavery, 33. 101. The Colonial Laws of New York, vol. 1, 157. 102. The Colonial Laws of New York, vol. 1, 158.



103. 104. 105. 106. 107. 108. 109. 110. 111. 112. 113. 114.

Notes to Pages 128–137

237

Harris, In the Shadow of Slavery, 33. The Colonial Laws of New York, vol. 1, 618. The Colonial Laws of New York, vol. 1, 617. The Colonial Laws of New York, vol. 1, 666. Harris, In the Shadow of Slavery, 37. The Colonial Laws of New York, vol. 1, 520. The Colonial Laws of New York, vol. 1, 520. The Colonial Laws of New York, vol. 1, 521. The Colonial Laws of New York, vol. 1. The Colonial Laws of New York, vol. 1, 631. The Colonial Laws of New York, vol. 1. Foote, Black and White Manhattan, 10.

Chap te r 6   A “ Patroll” to Suppre ss Dom e sti c Dang e r s 1. Bradley J. Nicholson, “­L egal Borrowing and the Origins of Slave Law in the British Colonies,” American Journal of L ­ egal History 38, no. 1 (1994): 41. 2. Thomas J. ­Little, “The South Carolina Slave Laws Reconsidered, 1670–1700,” South Carolina Historical Magazine 94, no. 2 (1993): 90. 3. Peter  J. Parish, Slavery: History and Historians (New York: Harper and Row, 1989), 14. 4. The phrase “police law of slavery” is borrowed from Nicholson, “­Legal Borrowing.” 5. Sally Hadden, Slave Patrols: Law and Vio­lence in V ­ irginia and the Carolinas (Cambridge, MA: Harvard University Press, 2001), 16. 6. Hadden, Slave Patrols. 7. Hadden, Slave Patrols, 17. 8. Hadden, Slave Patrols. 9. Thomas Cooper, ed., The Statutes at Large of South Carolina, vol. 2 (Columbia: A. S. Johnson, 1837), 23. 10. Cooper, The Statutes at Large, vol. 2, 23. 11. ­Little, “The South Carolina Slave Laws,” 95. 12. Cooper, The Statutes at Large, vol. 2, 10. 13. ­Little, “The South Carolina Slave Laws,” 89. 14. Elsa Goveia, “The West Indian Slave Laws of the Eigh­teenth ­Century,” Revista de Ciencias Sociales 1 (1960): 82. 15. ­Little, “The South Carolina Slave Laws,” 97. 16. ­Little, “The South Carolina Slave Laws.” 17. Hadden, Slave Patrols, 17–18. 18. Hadden, Slave Patrols, 18. 19. David J. McCord, ed., The Statutes at Large of South Carolina, vol. 7 (Columbia: A. S. Johnson, 1840) 346. 20. Hadden, Slave Patrols, 18. 21. ­Little, “The South Carolina Slave Laws,” 100. 22. Hadden, Slave Patrols, 18. 23. Hadden, Slave Patrols. For a discussion of “code borrowing,” see chapter 4. Also see Nicholson, “­L egal Barrowing.” 24. Cooper, The Statutes at Large, vol. 2, 8. 25. Hadden, Slave Patrols, 19. 26. Hadden, Slave Patrols, 19–20. 27. The section heading borrows from William Bull’s letter to the Earl of Hillsborough, dated November 30, 1770, wherein he writes: “The defense of the province as far as our own power can avail, is provided for by our militia against foreign and Patrols against domestic enemies.” Quoted in Hadden, Slave Patrols, 43.

238

Notes to Pages 137–144

28. Cooper, The Statutes at Large, vol. 2, 254. 29. Cooper, The Statutes at Large, vol. 2. 30. Cooper, The Statutes at Large, vol. 2. 31. Cooper, The Statutes at Large, vol. 2. 32. Cooper, The Statutes at Large, vol. 2, 255. 33. Hadden, Slave Patrols, 109. 34. Hadden, Slave Patrols, 106. 35. Hadden, Slave Patrols, 108. 36. Ryan  A. Quintana, Making a Slave State: ­Political Development in Early South Carolina (Chapel Hill: University of North Carolina Press, 2018), 110. 37. Quintana, Making a Slave State, 111. 38. Hadden, Slave Patrols, 109. 39. Quintana, Making a Slave State, 105. 40. Quintana, Making a Slave State, 92. 41. Quintana, Making a Slave State, 105. 42. Quintana, Making a Slave State, 112. 43. Quintana, Making a Slave State. 44. John Locke, Two Treatises of Government, edited by Peter Laslett (New York: Cambridge University Press, 1988), 111. 45. Thomas Nairne, “A Letter from South Carolina,” in Selling a New World: Two Colonial South Carolina Promotional Pamphlets, edited by Jack P. Greene (Columbia: University of South Carolina Press, 1989), 52. 46. McCord, The Statutes at Large, vol. 7, 352. 47. Hadden, Slave Patrols, 34. 48. Hadden, Slave Patrols. 49. Hadden, Slave Patrols, 21. 50. McCord, The Statutes at Large, vol. 7, 382. 51. Philip  D. Morgan, Slave Counterpoint: Black Culture in the Eighteenth-­Century Chesapeake and Lowcountry (Chapel Hill: University of North Carolina Press, 1998), 312. 52. Gerald Horne, The Counter-­R evolution of 1776: Slave ­R esistance and the Origins of the United States of Amer­i­ca (New York: New York University Press, 2014), 75–76. 53. Horne, The Counter-­R evolution of 1776, 73–74. 54. Horne, The Counter-­R evolution of 1776, 75–76. 55. Horne, The Counter-­R evolution of 1776. 56. Hadden, Slave Patrols, 123. 57. Hadden, Slave Patrols. 58. Hadden, Slave Patrols. 59. Hadden, Slave Patrols, 114. 60. Hadden, Slave Patrols, 104. 61. McCord, The Statutes at Large, vol. 7, 386. 62. McCord, The Statutes at Large, vol. 7, 392. 63. The section heading borrows from Quintana, Making a Slave State, 110. Hadden, Slave Patrols, 140. 64. Hadden, Slave Patrols, 139. 65. Hadden, Slave Patrols, 152–153. 66. Robert Orwell, Masters, Slaves, and Subjects: The Culture of Power in the South Carolina Low County, 1740–1790 (Ithaca, NY: Cornell University Press, 1998), 8. 67. In Orwell, Masters, Slaves, and Subjects, 8. 68. In M. M. Smith, ed., Stono: Documenting and Interpreting a Southern Slave Revolt (Columbia: University of South Carolina Press, 2005), 14. 69. Smith, Stono, 14–15. 70. Quintana, Making a Slave State, 110.



Notes to Pages 145–155

239

71. McCord, The Statutes at Large, vol. 7, 397. 72. McCord, The Statutes at Large, vol. 7, 402. 73. Orwell, Masters, Slaves, and Subjects, 68. 74. Quintana, Making a Slave State, 110. 75. McCord, The Statutes at Large, vol. 7, 399. 76. McCord, The Statutes at Large, vol. 7, 411. 77. McCord, The Statutes at Large, vol. 7, 413. 78. McCord, The Statutes at Large, vol. 7, 412. 79. McCord, The Statutes at Large, vol. 7, 413. 80. McCord, The Statutes at Large, vol. 7, 409, 413. 81. McCord, The Statutes at Large, vol. 7, 416–417. 82. McCord, The Statutes at Large, vol. 7, 402. 83. Orwell, Masters, Slaves, and Subjects, 67. 84. Nicholson, “­L egal Borrowing,” 42. 85. Nicholson, “­L egal Borrowing.” 86. Thomas Cooper, ed., The Statutes at Large of South Carolina, vol. 3 (Columbia: A. S. Johnson, 1838), 568. 87. Hadden, Slave Patrols, 73. 88. Quintana, Making a Slave State, 111. 89. In Smith, Stono, 13. 90. Edwin C. Holland, A Refutation of the Calumnies Circulated against the Southern and Western States (Charleston: A. E. Miller, 1822), 69–70. 91. Hadden, Slave Patrols, 139. 92. Horne, The Counter-­R evolution of 1776, 73. 93. Horne, The Counter-­R evolution of 1776, 92. 94. Horne, The Counter-­R evolution of 1776, 93. 95. Timothy James Lockley, ed., Maroon Communities in South Carolina: A Documentary Rec­ord, (Columbia: University of South Carolina Press, 2009), 13. 96. Hadden, Slave Patrols, 144. 97. Quintana, Making a Slave State, 105. 98. Lockley, Maroon Communities in South Carolina, 13. 99. Lockley, Maroon Communities in South Carolina. 100. McCord, The Statutes at Large, vol. 7, 420–421. 101. McCord, The Statutes at Large, vol. 7. 102. McCord, The Statutes at Large, vol. 7. 103. In Lockley, Maroon Communities in South Carolina, 23. 104. Lockley, Maroon Communities in South Carolina, 24. 105. In Hadden, Slave Patrols, 141. 106. Lockley, Maroon Communities in South Carolina, 24–25. 107. Lockley, Maroon Communities in South Carolina, 40. 108. Lockley, Maroon Communities in South Carolina, 103. 109. Lockley, Maroon Communities in South Carolina. 110. Lockley, Maroon Communities in South Carolina, 139. 111. Lockley, Maroon Communities in South Carolina, 40. 112. Lockley, Maroon Communities in South Carolina.

Chap te r 7   Poli c i ng the Che sapeake 1. Winthrop Jordan, White over Black: American Attitudes ­toward the Negro, 1550–1812, 2nd ed. (Chapel Hill: University of North Carolina Press, 1968), 82. 2. William Waller Hening, ed., The Statutes at Large; Being a Collection of All the Laws of ­Virginia from the First Session of the Legislature, in the Year 1619, vol. 3 (Philadelphia: R. & W. & G. Bartow, 1823), 447–463.

240

Notes to Pages 155–163

3. Hening, The Statutes at Large, vol. 3, 448–449. 4. Hening, The Statutes at Large, vol. 3, 449–450. 5. Hening, The Statutes at Large, vol. 3, 450. 6. Hening, The Statutes at Large, vol. 3, 459. 7. Hening, The Statutes at Large, vol. 3. 8. Hening, The Statutes at Large, vol. 3, 448. 9. Jordan, White over Black, 82. 10. Hening, The Statutes at Large, vol. 3, 59. 11. Hening, The Statutes at Large, vol. 3. 12. Hening, The Statutes at Large, vol. 3. 13. Hening, The Statutes at Large, vol. 3. 14. Hening, The Statutes at Large, vol. 3, 460. 15. Hening, The Statutes at Large, vol. 3. 16. Hening, The Statutes at Large, vol. 3, 461. 17. Hening, The Statutes at Large, vol. 3, 453. 18. Hening, The Statutes at Large, vol. 3, 454. 19. Hening, The Statutes at Large, vol. 3 20. William Waller Hening, ed., The Statutes at Large; Being a Collection of All the Laws of ­V irginia from the First Session of the Legislature, in the Year 1619, vol. 4 (Richmond: R. & W. & G. Bartow, 1823), 126–134. 21. Hening, The Statutes at Large, vol. 4, 126. 22. Hening, The Statutes at Large, vol. 4. 23. Hening, The Statutes at Large, vol. 4, 129. 24. Hening, The Statutes at Large, vol. 4, 130. 25. Hening, The Statutes at Large, vol. 4, 132. 26. Hening, The Statutes at Large, vol. 4, 132–133. 27. Hening, The Statutes at Large, vol. 4, 133. 28. Hening, The Statutes at Large, vol. 4, 128. 29. Hening, The Statutes at Large, vol. 4. 30. Hening, The Statutes at Large, vol. 4, 130. 31. Hening, The Statutes at Large, vol. 4, 129. 32. Hening, The Statutes at Large, vol. 4, 127. 33. Hening, The Statutes at Large, vol. 4. 34. Hening, The Statutes at Large, vol. 4, 131. 35. Hening, The Statutes at Large, vol. 4. 36. Hening, The Statutes at Large, vol. 4, 133–134. 37. In Emory G. Evans, “A Question of Complexion: Documents Concerning the Negro and the Franchise in Eighteenth-­Century ­Virginia,” ­V irginia Magazine of History and Biography 71, no. 4 (1963): 413. 38. Evans, “A Question of Complexion.” 39. Evans, “A Question of Complexion.” 40. Evans, “A Question of Complexion,” 414. 41. Bradley J. Nicholson, “­L egal Borrowing and the Origins of Slave Law in the British Colonies,” American Journal of L ­ egal History 38, no. 1 (1994): 38–54. 42. Nicholson, “­L egal Borrowing,” 53. 43. April Lee Hatfield, Atlantic V ­ irginia: Intercolonial Relations in the Seventeenth ­Century (Philadelphia: University of Pennsylvania Press, 2004), 137–139. 44. Hatfield, Atlantic ­V irginia. 45. Sally Hadden, Slave Patrols: Law and Vio­lence in V ­ irginia and the Carolinas (Cambridge, MA: Harvard University Press, 2001), 27. 46. Hadden, Slave Patrols, 33. 47. Hadden, Slave Patrols, 27.



Notes to Pages 164–171

241

48. Hadden, Slave Patrols. 49. Hadden, Slave Patrols, 29. 50. Hadden, Slave Patrols, 26. 51. In Hadden, Slave Patrols, 140. 52. Hadden, Slave Patrols, 29. 53. Hadden, Slave Patrols. 54. Hadden, Slave Patrols, 30. 55. Hadden, Slave Patrols, 30–31. 56. Hadden, Slave Patrols, 31. 57. Hadden, Slave Patrols. 58. Hadden, Slave Patrols, 24. 59. Jonathan L. Alpert, “The Origin of Slavery in the United States—­T he M ­ aryland Pre­ce­dent,” American Journal of L ­ egal History 14, no. 3 (1970): 212. 60. In Alpert, “The Origin of Slavery,” 213. 61. William H. Browne, ed., Archives of M ­ aryland: Proceedings and Acts of the General Assembly of ­ Maryland, January  1637/8–­ S eptember  1664 (Baltimore: ­ M aryland Historical Society, 1883), 451–452. 62. In Alpert, “The Origin of Slavery,” 218. 63. Alpert, “The Origin of Slavery.” 64. William H. Browne, ed., Archives of M ­ aryland: Proceedings and Acts of the General Assembly of ­Maryland, September, 1704–­April, 1706 (Baltimore: ­M aryland Historical Society, 1906), 255. 65. William H. Browne, ed., Archives of M ­ aryland: Proceedings and Acts of the General Assembly of M ­ aryland, April, 1715–­August, 1716 (Baltimore: M ­ aryland Historical Society, 1910), 285. 66. Browne, Archives of M ­ aryland, April, 1715–­August, 1716. 67. Browne, Archives of M ­ aryland, January 1637/8–­S eptember 1664, 54–55. 68. Browne, Archives of M ­ aryland, January 1637/8–­S eptember 1664. 69. Evelyn  L. Parks, “From Constabulary to Police Society,” Catalyst 5 (1970): 76–97. 70. Clayton  C. Hall, ed., Archives of M ­ aryland: Proceedings and Acts of the General Assembly of ­Maryland, October 1720–­O ctober 1723 (Baltimore: ­M aryland Historical Society, 1914), 731. 71. Hall, Archives of M ­ aryland, October 1720–­O ctober 1723, 732. 72. Hadden, Slave Patrols, 103. 73. Hall, Archives of M ­ aryland, October 1720–­O ctober, 1723, 732. 74. Virgil Maxcy, ed., The Laws of ­Maryland with the Charter, the Bill of Rights, the Constitution of the State, and Its Alterations, vol. 1 (Baltimore: Philip H. Nicklin, 1811), 236. 75. Maxcy, The Laws of M ­ aryland, vol. 1. 76. Maxcy, The Laws of M ­ aryland, vol. 1, 238. 77. Adam Malka, The Men of Mobtown: Policing Baltimore in the Age of Slavery and Emancipation (Chapel Hill: University of North Carolina Press, 2018), 19. 78. Malka, The Men of Mobtown. 79. Malka, The Men of Mobtown.

Chap te r 8   E nemi e s of Thei r Own House­h ol d s 1. Martin Alan Greenberg, Citizens Defending Amer­i­ca: From Colonial Times to the Age of Terrorism (Pittsburgh: University of Pittsburgh Press, 2005), 27–28. 2. Greenberg, Citizens Defending Amer­i­c a, 22. 3. Greenberg, Citizens Defending Amer­i­c a.

242

Notes to Pages 171–177

4. Greenberg, Citizens Defending Amer­i­c a. 5. Leslie M. Harris, In the Shadow of Slavery: African Americans in New York City, 1626–1863 (Chicago: University of Chicago Press, 2003), 28. 6. In Harris, In the Shadow of Slavery, 28. 7. Ira Berlin, Many Thousands Gone: The First Two Centuries of Slavery in North Amer­i­c a (Cambridge: Belknap Press, 1998), 179. 8. Peter Linebaugh and Marcus Rediker, The Many-­Headed Hydra: Sailors, Slaves, Commoners, and the Hidden History of the Revolutionary Atlantic (Boston: Beacon Press, 2000), 179. 9. Thelma W ­ ills Foote, Black and White Manhattan: The History of Racial Formation in Colonial New York City (New York: Oxford University Press, 2004), 91. 10. Foote, Black and White Manhattan. 11. Linebaugh and Rediker, The Many-­Headed Hydra, 181. 12. Linebaugh and Rediker, The Many-­Headed Hydra. 13. Peter Charles Hoffer, The ­G reat New York Conspiracy of 1741: Slavery, Crime, and Colonial Law (Lawrence: University Press of Kansas, 2003), 52. 14. Berlin, Many Thousands Gone, 59. 15. Linebaugh and Rediker, The Many-­Headed Hydra, 181. 16. Linebaugh and Rediker, The Many-­Headed Hydra, 206. 17. Berlin, Many Thousands Gone, 6. 18. Berlin, Many Thousands Gone. 19. Harris, In the Shadow of Slavery, 38. 20. In E. B. O’Callaghan, ed., Documents Relative to the Colonial History of the State of New York, vol. 5 (Albany: Weed, Parsons and Com­pany, 1855), 341. 21. Harris, In the Shadow of Slavery, 37. 22. Hoffer, The ­G reat New York Conspiracy, 49. 23. Jill Lepore, New York Burning: Liberty, Slavery, and Conspiracy in Eighteenth-­ Century Manhattan (New York: Vintage Books, 2005), 3. 24. Harris, In the Shadow of Slavery, 37. 25. In O’Callaghan, Documents, vol. 5, 341. 26. Harris, In the Shadow of Slavery, 37. 27. In O’Callaghan, Documents, vol. 5, 341. 28. Lepore, New York Burning, 53. 29. Harris, In the Shadow of Slavery, 38. 30. Lepore, New York Burning, 82. 31. Lepore, New York Burning, 58. 32. In O’Callaghan, Documents, vol. 5, 341. 33. Lepore, New York Burning, 58. 34. Lepore, New York Burning, 60. 35. In O’Callaghan, Documents, vol. 5, 341. 36. O’Callaghan, Documents, vol. 5, 342. 37. O’Callaghan, Documents, vol. 5, 341. 38. Harris, In the Shadow of Slavery, 38. 39. In O’Callaghan, Documents, vol. 5, 342. 40. Harris, In the Shadow of Slavery, 38. 41. Harris, In the Shadow of Slavery. 42. Harris, In the Shadow of Slavery. 43. Harris, In the Shadow of Slavery, 34. 44. In O’Callaghan, Documents, vol. 5, 356. 45. The Colonial Laws of New York, vol. 1 (Albany: James  B. Lyon, State Printer, 1894), 762. 46. The Colonial Laws of New York, vol. 1, 762–763. 47. The Colonial Laws of New York, vol. 1, 764.



Notes to Pages 178–182

243

48. The Colonial Laws of New York, vol. 1, 762. 49. The Colonial Laws of New York, vol. 1, 766–767. 50. The Colonial Laws of New York, vol. 1, 762. 51. The Colonial Laws of New York, vol. 1, 765. 52. The Colonial Laws of New York, vol. 1. 53. Lepore, New York Burning, 58. 54. The Colonial Laws of New York, vol. 1, 764. 55. Lepore, New York Burning, 57. 56. Minutes of the Common Council of the City of New York, 1675–1776, vol. 3 (New York: Dodd, Mead and Com­pany, 1905), 28. 57. Minutes of the Common Council, vol. 3, 30–31. 58. Minutes of the Common Council, vol. 3. 59. Minutes of the Common Council, vol. 3, 31. 60. Minutes of the Common Council, vol. 3. 61. Lepore, New York Burning, 154, 57. 62. Lepore, New York Burning, 57. 63. Lepore, New York Burning, 51. 64. Lepore, New York Burning. 65. Lepore, New York Burning. 66. The Colonial Laws of New York, vol. 2 (Albany: James  B. Lyon, State Printer, 1894), 461. 67. Gerald Horne, The Counter-­R evolution of 1776: Slave ­R esistance and the Origins of the United States of Amer­i­c a (New York: New York University Press, 2014), 63. 68. Foote, Black and White Manhattan, 91. 69. The Colonial Laws of New York, vol. 1, p. 859. 70. The Colonial Laws of New York, vol. 1, 860. 71. Harris, In the Shadow of Slavery, 29. 72. Harris, In the Shadow of Slavery. Harris reports the same counts for New York, New Jersey, ­M aryland, and ­Virginia, which match the figures in the colonial census. She names this population as “slaves,” but it is likely that ­these figures included ­free Blacks as well, which ­were but a small fraction of the Black population. 73. Berlin, Many Thousands Gone, 182. 74. Berlin, Many Thousands Gone, 179. 75. Harris, In the Shadow of Slavery, 34. 76. In Berlin, Many Thousands Gone, 180. 77. Berlin, Many Thousands Gone, 181–182. 78. Thomas  J. Davis, “­ T hese Enemies of Their Own House­ hold: Slaves in 18th ­Century New York,” in A Beautiful and Fruitful Place: Selected Rensselaerswijck Seminar Papers, edited by Nancy Anne McClure Zeller (Albany: New Netherland Publishing, 1991), 175. 79. Lepore, New York Burning, 22. 80. Lepore, New York Burning. 81. Lepore, New York Burning. 82. James F. Richardson, The New York Police: Colonial Times to 1901 (New York: Oxford University Press, 1970), 4. 83. Davis, “­T hese Enemies of Their Own House­hold,” 175. 84. Lepore, New York Burning, 57. 85. The Colonial Laws of New York, vol. 2, 680. 86. The Colonial Laws of New York, vol. 2, 681. 87. The Colonial Laws of New York, vol. 2, 679. 88. Quoted in Linebaugh and Rediker, The Many-­Headed Hydra, 182. 89. The Colonial Laws of New York, vol. 2, 679.

244

Notes to Pages 182–188

90. The Colonial Laws of New York, vol. 2. 91. Lepore, New York Burning, 42. 92. Richard Ligon, A True and Exact History of the Island of Barbadoes (London: Leg and Star, 1673), 29. 93. This section heading is taken from a phrase appearing in an official rec­ord, dated April 11, 1741, from Daniel Horsmanden’s Journal of the Proceedings, published in 1744. 94. It is likely that only two or three of the fires on March 18 and April 6 w ­ ere intentionally set as acts of rebellion, the l­ater ones possibly inspired as much by the paranoid fears and investigation as anything e­ lse. 95. ­These works are cited throughout this chapter. Particularly useful are Lepore, New York Burning; Foote, Black and White Manhattan; chapter  6  in Linebaugh and Rediker, The Many-­Headed Hydra; and chapter  1  in Leslie Harris, In the Shadow of Slavery. 96. Berlin, Many Thousand Gone, 6. 97. Daniel Horsmanden, The New York Conspiracy T ­ rials of 1741, edited by Serena R. Zabin (Boston: Bedford/St. Martin’s, 2004), 47–50. 98. Horsmanden, The New York Conspiracy T ­ rials, 51–52. 99. Horsmanden, The New York Conspiracy T ­ rials, 49. 100. Linebaugh and Rediker, The Many-­Headed Hydra, 174. 101. Horsmanden, The New York Conspiracy T ­ rials, 47. 102. Linebaugh and Rediker, The Many-­Headed Hydra, 174–175. 103. Linebaugh and Rediker, The Many-­Headed Hydra. 104. Horsmanden, The New York Conspiracy T ­ rials, 56. 105. Horsmanden, The New York Conspiracy T ­ rials. 106. Horsmanden, The New York Conspiracy T ­ rials. 107. Horsmanden, The New York Conspiracy T ­ rials. 108. Horsmanden, The New York Conspiracy T ­ rials, 59. 109. Eric  W. Plaag, “New York’s 1741 Slave Conspiracy in a Climate of Fear and Anxiety,” New York History 84, no. 3 (2003): 282. 110. Plaag, “New York’s 1741 Slave Conspiracy.” 111. Linebaugh and Rediker, The Many-­Headed Hydra, 203. 112. Lepore, New York Burning, 49. 113. Lepore, New York Burning. 114. Lepore, New York Burning, 50. 115. Horsmanden, The New York Conspiracy T ­ rials, 82–83. 116. Plaag, “New York’s 1741 Slave Conspiracy,” 298. 117. Plaag, “New York’s 1741 Slave Conspiracy.” 118. Plaag, “New York’s 1741 Slave Conspiracy,” 292. 119. Plaag, “New York’s 1741 Slave Conspiracy,” 295. 120. Linebaugh and Rediker, The Many-­Headed Hydra, 175. 121. Linebaugh and Rediker, The Many-­Headed Hydra, 184–190. 122. Linebaugh and Rediker, The Many-­Headed Hydra, 186. 123. Linebaugh and Rediker, The Many-­Headed Hydra, 175–176. 124. Horsmanden, The New York Conspiracy T ­ rials, 68. 125. Horsmanden, The New York Conspiracy T ­ rials. Not to discount the rebellious agency of the enslaved, as Horsmanden did, but tavern ­owners ­were known for exploiting slaves, enlisting them in ­organized crime for their own gain. 126. Horsmanden, The New York Conspiracy T ­ rials, 81. 127. Horsmanden, The New York Conspiracy T ­ rials, 74. 128. Horsmanden, The New York Conspiracy T ­ rials. 129. Richard E. Bond, “Shaping a Conspiracy: Black Testimony in the 1741 New York Plot,” Early American Studies 5, no. 1 (2007): 70.



Notes to Pages 188–199

245

130. 131. 132. 133. 134. 135. 136. 137. 138. 139. 140. 141. 142. 143. 144. 145. 146. 147.

Bond, “Shaping a Conspiracy.” Horsmanden, The New York Conspiracy T ­ rials, 85. Serena R. Zabin, in Horsmanden, The New York Conspiracy T ­ rials, 129. Lepore, New York Burning, 170–171. Hoffer, The ­G reat New York Conspiracy, 163. In Horsmanden, The New York Conspiracy T ­ rials of 1741, 169. Plaag, “New York’s 1741 Slave Conspiracy,” 280. Linebaugh and Rediker, The Many-­Headed Hydra, 179. Linebaugh and Rediker, The Many-­Headed Hydra, 208. Serena R. Zabin, in Horsmanden, The New York Conspiracy T ­ rials of 1741, 10. Horsmanden, The New York Conspiracy T ­ rials. See also Lepore, New York Burning, 22. Lepore, New York Burning, 22. Linebaugh and Rediker, The Many-­Headed Hydra, 208–209. Foote, Black and White Manhattan, 92. Lepore, New York Burning, 59. Horsmanden, The New York Conspiracy T ­ rials, 45. Horsmanden, The New York Conspiracy T ­ rials. In Daniel Horsmanden, The New-­York Conspiracy, or a History of the Negro Plot (New York: Southwick & Pelsue, 1810), 328. 148. Linebaugh and Rediker, The Many-­Headed Hydra, 208. 149. Berlin, Many Thousand Gone, 183. 150. Davis, “­T hese Enemies of Their Own House­hold,” 175.

C onclusion 1. Sally Hadden, Slave Patrols: Law and Vio­lence in V ­ irginia and the Carolinas (Cambridge, MA: Harvard University Press, 2001), 18. 2. Winthrop Jordan, White over Black: American Attitudes t­oward the Negro, 1550–1812 (Baltimore: Penguin Books, 1968), 167. 3. Jordan, White over Black, 167. 4. Jordan, White over Black, 169. 5. Jordan, White over Black, 169. 6. Jordan, White over Black, 171. 7. Steve Martinot, “The Militarisation of Police,” Social Identities 9, no. 2 (2003): 207. 8. Martinot, “The Militarisation of Police.” 9. Joseph Brevard, ed., An Alphabetical Digest of the Public Statute Law of South Carolina, vol. 2 (Charleston: John Hoff, 1814), 242. 10. Brevard, ed., An Alphabetical Digest. 11. Hadden, Slave Patrols, 25. 12. Hadden, Slave Patrols. 13. Hadden, Slave Patrols, 36. 14. Hadden, Slave Patrols, 24. 15. Hadden, Slave Patrols, 37. 16. Hadden, Slave Patrols. 17. Hadden, Slave Patrols. 18. Peter  H. Wood, Black Majority: Negroes in Colonial South Carolina from 1670 through the Stono Rebellion (New York: W. W. Norton, 1974), 274. 19. Wood, Black Majority. 20. Wood, Black Majority. 21. Wood, Black Majority. 22. Joel Olson, The Abolition of White Democracy (Minneapolis: University of Minnesota Press, 2006), 43.

246

Notes to Pages 199–204

23. Olson, The Abolition of White Democracy. 24. Olson, The Abolition of White Democracy, xv. 25. Olson, The Abolition of White Democracy, xx. 26. Olson, The Abolition of White Democracy, 14. 27. Olson, The Abolition of White Democracy, 43. 28. Judith N. Shklar, American Citizenship: The Quest for Inclusion (Cambridge, MA: Harvard University Press, 1991). See also Olson, The Abolition of White Democracy, 40–44, 78–79. 29. Lerone Bennett Jr., The Shaping of Black Amer­i­ca (New York: Penguin Books, 1993), 27. 30. Olson, The Abolition of White Democracy, 16. 31. Olson, The Abolition of White Democracy, 17. 32. Olson, The Abolition of White Democracy, 68. 33. Olson, The Abolition of White Democracy, xv. 34. Hadden, Slave Patrols, 40. 35. Hadden, Slave Patrols, 103. 36. Hadden, Slave Patrols. The addition of penalties h ­ ere corrects a crucial omission, to which Hadden would not likely object. 37. Hadden, Slave Patrols. 38. Christian Parenti, “Policing the Color Line,” The Nation, September 13, 2001, https://­w ww​.­t henation​.­com​/­a rticle​/­a rchive​/­policing​-­color​-­l ine​/­. 39. Hadden, Slave Patrols, 72. 40. Hadden, Slave Patrols, 103. 41. Philip D. Morgan, Slave Counterpoint: Black Culture in the Eighteenth-­Century Chesapeake & Lowcountry (Chapel Hill: University of North Carolina Press, 1998), 310. 42. Hadden, Slave Patrols, 104. 43. Hadden, Slave Patrols, 109. 44. Morgan, Slave Counterpoint, 310. 45. Morgan, Slave Counterpoint. 46. Morgan, Slave Counterpoint, 310. 47. Morgan, Slave Counterpoint, 315–316. 48. Morgan, Slave Counterpoint, 307. 49. Morgan, Slave Counterpoint. 50. Isaac Ariail Reed, “Anthony Wayne, Distributed Sovereignty, and the Bodies of the Republic: From the Early Modern to the Con­temporary USA, Part 1,” Public Seminar, April  10, 2017, https://­publicseminar​.­org​/­2 017​/­0 4​/­d istributed​ -­sovereignty​-­a nd​-­t he​-­bodies​-­of​-­t he​-­republic​/­. 51. Reed, “Anthony Wayne, Distributed Sovereignty.” 52. Reed, “Anthony Wayne, Distributed Sovereignty.” 53. This is a proj­ect that I started years ago, ­w ill continue to develop, and welcome ­others to join as a conversation. 54. Skeptics who question continuity in the relationships among ­t hese institutions, or the extent to which the police of slavery continues to inform policing beyond this period may be inclined to document what led to the end or weakening of ­t hese relationships. 55. David Roediger, Seizing Freedom: Slave Emancipation and Liberty for All (New York: Verso, 2014), 175. 56. Loïc Wacquant, “Deadly Symbiosis: When Ghetto and Prison Meet and Mesh,” Punishment & Society 3, no. 1 (2001): 98–99. 57. Wacquant, “Deadly Symbiosis.” 58. Steve Martinot, “Probing the Epidemic of Police Murders,” Socialism and Democracy 27, no. 1 (2013): 74. 59. Martinot, “Probing the Epidemic of Police Murders,” 75.



Notes to Pages 204–207

247

60. I originally intended for this book to conclude ­a fter the Civil War, but abolitionism, proslavery, and white supremacist ideologies alone—­not to mention the abolition of slavery in the North, the enforcement of the fugitive slave laws, and the founding of so-­called modern police in the North—­d isallowed sufficient focus on the significance of this period of origination. 61. H. M. Henry, “The Slave Laws of Tennessee,” Tennessee Historial Magazine 2, no. 3 (1916): 80. 62. See W.E.B. Du Bois, Black Reconstruction in Amer­i­ca (New York: Oxford University Press, 2007), 13–24. 63. Eric  H. Monkkonen, Police in Urban Amer­i­ca, 1860–1920 (Cambridge: Cambridge University Press, 1981), 63–64. 64. Monkkonen, Police in Urban Amer­i­ca, 64. 65. W.E.B. Du Bois, “The Prob­lem of the Twentieth C ­ entury Is the Prob­lem of the Color Line,” in W.E.B. Du Bois on Sociology and the Black Community, edited by D. Green and E. Driver (Chicago: University of Chicago Press, 1995), 282. 66. Du Bois, “The Prob­lem of the Twentieth ­Century.” 67. Minisha Sinha, The Slave’s Cause: A History of Abolition (New Haven, CT: Yale University Press, 2016), 4. 68. Sinha, The Slave’s Cause, 3. 69. Sinha, The Slave’s Cause, 3. 70. Meghan  G. McDowell and Luis  A. Fernandez, “ ‘Disband, Disempower, and Disarm’: Amplifying the Theory and Practice of Police Abolition,” Critical Criminology 26 (2018): 377. 71. McDowell and Fernandez, “ ‘Disband, Disempower, and Disarm.’ ” 72. C.L.R. James, You ­D on’t Play with Revolution: The Montreal Lectures of C.L.R. James, edited by David Austin (Oakland: AK Press, 2009), 129. 73. Ruth Wilson Gilmore, Abolition Geography: Essays ­toward Liberation (New York: Verso, 2022), 192.

Note on th e C ove r Art

The illustration on the cover was sketched by Frederic B. Schell and originally appeared in a Louisiana newspaper in 1863. The caption read, “The plantation police or home-­g uard examining Negro passes on the levee road below New Orleans.” The inspection of slave passes constituted the original police activity, beginning in V ­ irginia and South Carolina during the late-­ seventeenth ­century.

249

Inde x

Benjamin, Walter: angel of history, abolition: movement for slavery, 28, 213n16; materialistic historiography, 191; of police, xviii, 28, 207–208; of 2–3; state of emergency, 3, 48–49 slavery, 51, 204–205, 247n60 Allen, Theodore W., 78, 80; indentured Bennett, Lerone, Jr., 69–70, 80, 199; servants as chattel, 215n61; national anx­i­eties among settlers, 22; colorand racial oppression, 55, 223n6 blindness in colonial Amer­i­ca, 62, 64; anticitizens: Blacks as, 23–24, 61, 67, ­English involvement in slave trade, 13 198 Berghe, Pierre van den: physical Arbery, Ahmaud, 206 distinguishability of race, 56 Berlin, Ira, 64, 117, 118, 119, 120, 174, Bacon’s Rebellion, 63, 88, 91, 179 181, 184, 191 Bittner, Egon: capacity to use force as Barbados: as cap­i­t al­ist, 110; compared core of police role, 6, 32, 34–39, with V ­ irginia, 163; customary use of slavery before legalization in, 97; 214n29; demand-­side theory of development of racism ahead of police, 37–39; police created to cope mainland in, 108–109; early transiwith the dangerous classes, 37; police tions in commodity production in, role in pacification, 36; rejecting 96; Iberian influence on race in, 97, police as crime fighters, 6 108; influence on Georgia, 110; Black codes, 116, 206 influence on New York, 127; Black Lives ­M atter, xvii influence on South Carolina, 110–113, Blacks: anticitizens, 23–24, 61, 67, 198; 163; influence on slave law in British as chattel, 21, 22; as landholders, 83; West Indies, 110; Irish servants to as latent insurgents, 21, 23, 25, 73, carry passes in, 97; militia policing 88, 89, 154, 158, 171; as a nation in, 104; most profitable colony, within a nation, 144; presumptive 163; population of, 97–98, 107; slave status for, 87, 115; reporting population management in, 105; as other nonwhites, 161; as slave ­owners, prototype, 110–115; separate system 85; as threats to security, 6 of laws determined by race in, 108; Boston Police: first police, vii, ix slavery racialized at the outset in, Brodeur, Jean-­Paul, 37–38 97; “white slavery” in, 97, 101; all Brogden, Mike: influence of colonies whites tasked with controlling slaves on British police, x; suppression of in, 103 rebellion as core mandate, 220n74 Beckles, Hilary, 99, 102–112 broken win­dows policing, 212n24

251

252

Index

physical distinguishability of race, 56; racism and ethnocentrism, 56; utility of Marxist analy­sis, 5 crisis: of security, 23, 74, 193; of Caesar (slave of John Vaark), 184, 187, underproduction, 23, 63, 74, 193 critical race theory, 26, 221n88 188 capitalism: early development of, xvii, cross-­class alliance, 6, 59, 70–72, 116, 54, 65, 77, 98–99, 110, 113, 152, 173, 126, 162, 200–202, 207–208; fragility 193; linked with race and police, 26, of, 172; patrol duty and, 138; policing 203; plantation production, contribuand, 200–202, 203 tion to the origins of, 77; racial, xviii, Cuffee (slave of Adolph Philipse), 186, 9, 27–28, 48, 57–60, 66, 72, 207; state 188, 190 and, 7, 26, 41–42, 49, 67, 152. See also state, the Du Bois, W.E.B., 206; “ judicial lynching,” 206; a Marxist analyst, 5, cap­i­t al­ist class, 4, 40, 41, 48, 53, 74, 79, 94, 118, 173, 193; security of, 200. 58; plantation system as cap­i­t al­ist, See also cross-­class alliance xvii; police, 67, 69; psychological and public wage, 58, 68; race divided carceral state, xviii, 28, 42–43 working class, 59, 64; slavery constiCarolina: conception of order borrowed tuted racial capitalism, 57, 65; slaves from Barbados, 134; copying Barbaas proletarian, 59–60, 65 dian slave codes, 73–74, 113, 136; Dunn, Richard, 103, 104, 110 division into North and South, 141; efforts to limit Barbadian influence Emanuel the Negro, 84, 86 on, 112; entire white population to Engels, Friedrich: historical materialpolice Blacks in, 134; importing a ism, 3; origin of the state, 41, 66–67 slave society to, 73; ­legal incentives for Barbadian mi­g rants to, 111; ­English ethnocentrism: t­ oward Afrioriginated as a slave society, 133; cans, 18–19; t­ oward Spanish, 19–20, population of, 133, 136, 137; trade 63, 92–93 with Barbados, 133. See also North En­g lishness, 123–124, 126, 173, 180, Carolina; South Carolina 184, 190. See also liberty: E ­ nglish Casor, John, 85 identity and constabulary: blamed for underenforce- ­English slaves, 99 ment of slave codes, 160; broad responsibilities of, 168; distinct from Farley, Anthony Paul, 26, 61 police, xiv, 32, 36, 122, 168, 201; fears of insurrection: as cause for proactive policing by, 121–122, 134, creation of police, 23, 34, 134; 137, 138; regulation of slaves in extension of police power to whites out of, 135; provoked by importation ­M aryland, 168, 170; regulation of of slaves, 164 slaves in ­Virginia, 89, 157, 164 Fernandez, Luis, 207 Coromantees, 174, 176, 177; dif­fer­ent Floyd, George, vii, xviii experiences with slavery in Africa, 176 Foote, Thelma W ­ ills, 116, 125, 126, Cox, Oliver ­Cromwell, 59, 62, 223n4; 127; En­g lishness, 123–124, 173, 180, bipartite race relations, 6, 54–55, 66; 190; racial my­t hol­ogy, 123 bucket brigades, 51, 175, 183, 185 Bull, William, 148, 150, 191, 237n27 Burton, Mary, 183, 186, 189

Index

Fort Cormantin, 174 Fosdick, Raymond, xii–­x iii, 32–33 Foucault, Michel: criminal as social ­enemy, 61; role of history, 4 ­f ree Blacks, 81–82; could not gather with slaves, 127; did not serve on slave patrols, 168; disenfranchisement of, 161–162; eliminating rights of, 127; police mandate and, 196 fugitive slave laws, 247n60; white citizen enforcement of, 205 Georgia: slave patrols founded in, 148; slavery outlawed in, 148 Gilmore, Ruth Wilson, 207 Gooch, William: defending disenfranchisement of ­f ree Blacks, 162; expressions of racism, 162 Greenberg, Martin Alan, 51–52, 171 Greene, Jack, 111 Guasco, Michael, 13, 14, 17–18, 20, 92–93 Hadden, Sally, 24–25, 69, 70, 103, 104, 108, 134, 135, 136, 137, 138, 142, 143, 148, 149, 151, 165, 168, 194, 196, 201; patrolling and camaraderie among whites, 70; slave control tasked to whites, 103; slave patrols as distinct from modern police, xv; three principal duties of patrols, 138; unique distinguishing qualities of slave patrols, 151. See also slave patrols: principal duties of Hannaford, Ivan, 20, 21, 54, 57 Hannah-­Jones, Nikole, 11, 215n46 Harring, Sidney, 29; police fundamentally anti-­working class, 41 Harris, Leslie, 119, 127–128, 176–177, 181 Hayes, Katherine Howlett, 2 Higginbotham, A. Leon, Jr., 82, 229n29 historical materialism, 3–5

253

Horne, Gerald, 180; creation of whiteness, 61–62, 141, 148 Horsmanden, Daniel, 183–191; expressions of racism, 187, 188 hue and cry, 86, 122, 128, 166; insufficient to police slaves, 151 Hughson, John, 182, 183, 184, 188, 190 Hunter, Robert, 174, 175, 176, 177, 180; complaints of excessive punishments for 1712 rebellion, 175; complaints about harsh slave codes, 177, 180 hypodescent. See one-­d rop rule Ignatiev, Noel, 28, 68, 227n103 indentured ­service, 78, 80. See also servants James, C.L.R., 4, 11, 207 Johnson, Anthony, 11, 85 Jordan, Winthrop, 155, 156, 195 Kerry, Peggy, 184, 188, 190 Key, Elizabeth, 85 Klockars, Carl: definition of police, 7, 29, 35, 41; state and police, 53; vigilantes, 52–53 Ku Klux Klan, 50, 70, 206 Leisler’s Rebellion, 125–126, 179 Lenin, V.I., 11 Lepore, Jill, 175, 178, 179, 182, 185, 188, 190 liberty: contagion of, 64, 204; defined against slavery, 99–100; ­English identity and, 17–18, 21, 63, 97, 99, 108, 193–194; prosperity and, 114; security as precondition for, 71, 198. See also En­g lishness Ligon, Richard, 100–102, 105, 110 Linebaugh, Peter, 173, 184, 186, 187, 189, 191 ­Little, Thomas, 113

254

Index

Locke, John: author of Fundamental Constitutions of Carolina, 47, 114, 139, 222n119, 234n129; involvement in slave trade, 47–48; prerogative power, 46–47; reconciled liberty and slavery, 48, 114, 139; self-­possession, 114, 139–140; slavery, 47 London Metropolitan Police ­Service: influence in United States, ix, xiii, 34, 53; maintaining order as a core mandate of, 44; role in origins as crime fighters, 30, 39

enemies, xv; slaves as priority for, 135–136, 171, 197; slave patrols drawn from, 147, 152; strengthened to prevent insurrection, 164–165; use against civilians, 78–79; weakness of, 137 miscegenation, 32, 33, 62, 82, 86, 92, 158 Monkkonen, Eric: modern police defined by uniforms, 32–33, 70; origins of police, x, xi Muhammad, Khalil Gibran, xiii Myrdal, Gunnar, 72

Malka, Adam, 169–170 Manning, Peter K., 32, 35–37, 39, 48; police mandate, 32; relationship of law and police, 44 maroons, 22, 90–91, 93, 100, 106–107, 108, 109, 149–151, 157, 165; assaulted by patrols, 9, 34, 138; as slave-­catchers, 109 Martin, Trayvon, 206 Martinot, Steve, 49, 70–71, 195, 203, 204 Marx, Karl, 11, 66, 207; eleventh thesis, 27, 206; historical materialism, 3–5; “On the Jewish Question,” 60; primitive accumulation, 30, 65; slavery abolitionist movement, 207, 226n81; slavery as foundation of capitalism, 57; social existence determines consciousness, 57–58 ­M aryland, policing slaves in, 167–170 McDowell, Meghan, 207 Michalowski, Raymond, 220n77 militia: Blacks serving in, 121, 157; capturing runaway slaves, 106, 108, 135, 143; compulsory ­service in, 79, 104, 121, 193; as first mainland slave patrols, 136; first police mandate fulfilled by, 25, 34, 119, 122, 141, 165, 171–172, 194, 197; insufficient to police slaves, 149, 157; merged with slave patrols, 141; overpowered by rebels, 112; policing domestic

Nairne, Thomas, 140 natal alienation, 86, 114, 140, 194 Native Americans: and race, 223n4 Neocleous, Mark, 66, 68; ad hoc policing, 79; contribution to critical theory of police, xvii, 30; critique of criminology, 29; Eurocentricity, 31; expansive functions of police, 51; fabrication of order, xiv, 39–40; inattentiveness to race, 30–31; police and state, 7, 36, 37, 41–42, 48, 67; police as an institution, 33; police concept in Amer­i­ca, 211n12; police mandate, 220n65; police role in pacification, 36; police straddle judicial and executive spheres, 49; prerogative power, 46; role of law in policing, 44–46; separation of state and civil society, 42, 50; vagrancy laws, 30; warrantless arrests, 36 New Amsterdam. See New York Newman, Simon, 110 New York: acquiring a slave society, 73, 116; assimilating Blacks into Dutch life, 124; Barbadian influence in, 127; crime in, 182; cross-­class alliance difficult to establish in, 116; dispersal of slave holdings in, 127; Dutch incentives for slavery in, 117; Dutch reliance on slavery for ­labor in, 118; fears of slave revolts in, 179; half-­s laves, 120–121; hiring out slaves

Index

in, 119–120; imprisonment of slaves in, 129; interracial proximity and socialization in, 119, 120, 181; lack of coherence of police mandate in, 123; population of, 116, 118–119, 172–173, 181, 182, 191; slavery more restrictive ­u nder ­English rule in, 128; social heterogeneity in, 125–126; transition from servitude to slavery in, 180–181; use of slaves in militia in, 121; widespread slave owner­ship in, 116 New York Police Department, 44; as the first police, vii; founding of, 197 Nicholson, Bradley, 102, 103, 133; code borrowing, 112; innovative borrowing, 112, 146–147; martial law princi­ples a model for police, 104; “police law of slavery,” 162, 212n39 Nietzsche, Friedrich: on history, 4–5 North Carolina: population, 141. See also Carolina Olson, Joel: cross-­class alliance, 59; ­f anaticism, 28; origins of race, 62; ­political theory of race, xviii, 58; white citizenship, 57, 60, 199–200; white democracy, 199–200. See also cross-­class alliance one-­d rop rule, 6, 17, 54, 66 origination, 11, 21, 26, 39–41, 73–75, 132, 134, 169, 197–198, 203 orthodox history of police, ix–xv, 1–3, 31–32, 44, 53 passes: issued to indigenes, 163–164; required of citizens to leave colony, 163; required of ship captains to embark, 163. See also slave passes Patterson, Orlando, 12, 61, 114, 225n47 Peel, Sir Robert, ix–­x peonage, 206 Phillip, John, 82 planters: conflict between small and large, 88, 135; confronting l­abor shortage, 93; cruelty to slaves, 109

255

police: avocational police, 51–52; consolidating sovereignty, 49; as crime fighters, 6–7, 30, 221n88; discretion of, 36, 43–52, 157; as gatekeepers to prisons, 43; homological relationship with militia, 134; as an institution, 33; profiling and, 195–196; role in class formation, xvii, 3, 9, 30, 40, 53, 62, 152; role in primitive accumulation, 30; role in race formation, 9, 43, 53, 67–68; securitization and, 36; strength dependent on race, 132 police fetishism, 41, 71 police mandate, 32–41; as defining police, 5; enrolled all whites in policing, 6, 194; expanded to w ­ hole population, 136, 142, 163; fulfilled by militia, 34, 197; as preventive, 119, 127, 205; state demand and conceptions of order/disorder, 40; wedding state and civil society, 192 police state, 10, 28, 41–44, 46, 107 policing: cross-­class alliance demonstrated through, 170, 192; developed racial solidarity, 6, 171; all marginal groups subjected to, 163; nonwhites policing other nonwhites, 109–110; as proactive/preventive, xiv, 32, 34, 89, 119, 166; racializing whites as anti-­Black, 24–25; required duty for whites, 24, 51, 69, 120, 136, 171, 194; severed class solidarity, 23, 208; without dedicated o ­ rganizations, 6, 9, 25, 39, 41, 131, 134, 172 ­popular sovereignty. See sovereignty: distributed praxis, 206 prerogative power, 7, 46–50, 198; extended to citizens, 52, 89–90, 146, 149, 153, 167, 202. See also police: discretion of Prince (slave of John Auboyneau), 187 Punch, John, 83, 86

256

Index

Quack (slave of John Roo­se­velt), 184, 188 Quintana, Ryan, 138–139, 145 race: absence of consensus about in early colonial era, 21, 55–56, 81–83; class formation and, 1, 58–60, 66–68, 77, 123, 200; contribution of chattel slavery in creating, 57, 60, 74; contribution of slave trade in creating, 57, 61–66; as determinant of differential punishments, 86, 177; determined citizenship, 1; determined who could be enslaved, 1, 59; divided the working class, 58–59, 200; ethnicity and, 56; gradations of in Spanish and Portuguese colonies, 54; influence of Enlightenment science on ideas about, 19; mechanism of class control, 200; physical distinguishability and, 56, 71, 97, 195; a ­political phenomenon, 6; precarity of, 125–126; proto-­r acial ideas, 20; unreliable in New York, 183–184; unique in United States, 6, 54, 61–66, 109, 195. See also capitalism: racial racism: anti-­Black, 56, 126, 127; in Barbados, 109; created a­ fter race, 21, 56–57, 63–65, 114; distinct from ethnocentrism, 56; early example of in Carolina, 140; as an eighteenth-­ century advent, 21; influence of proslavery ideology on, 19, 20; informed by practice of racial slavery, 114; in prosecution of 1741 insurrectionists, 188; used in defense of disenfranchisement of Blacks, 162 raison d’etat. See reason of state Rawick, George, 25 reason of state, 46–47, 48–49, 71, 154, 198 Rediker, Markus, 173, 184, 186, 187, 189, 191 Reed, Isaac Ariail, 202

Rhode Island, restrictions on slavery in, 109 Roberts, Dorothy, 8 Robinson, Cedric, 57; conflating ethnocentrism and racialism, 216n85, 226n78 Roediger, David, 19, 94, 203; herrenvolk republic, 55 rule of law, 45–46, 49 Schell, Fredric B., 249 Schmitt, Carl, 48–49 security, 7, 9, 23–25, 36, 41, 42, 46–47, 49, 172; as precondition for liberty, 198. See also crisis: of security Seri, Guillermina, 49 servants: arming of, 104; class ascension ­a fter indenture, 78, 135; Coromantee slaves compared with, 177; death before end of indenture, 12, 63, 81, 177; dif­fer­ent l­egal status from slaves, 181; exchange between slaves and, 135; former servants as slave ­owners, 85, 113; increased importation of to offset slave population, 93–94; primary source of l­abor, 9, 14, 92; punishment of runaways, 83, 84; rights as subjects, 125; on slave patrols, 138 servitude as punishment, 99 sheriffs: blamed for underenforcement of slave codes, 160; distinct from police, 122; l­egal constraints on discretion of, 122; regulation of slaves, 157 Shklar, Judith, citizenship, 199–200 Siegel, Micol, 35–36, 49; police as “vio­lence workers,” 50 Silva, Juan de la, 185 Singh, Nikhil, 68, 227n103 Sinha, Manisha, 207 slave codes: disenfranchising all Blacks, 161–162; economic influence on, 127, 135, 136; effect of Christian conversion and baptism on slave status,

Index

85–86, 87–88, 124–125, 155; expression of police mandate in, 24, 69, 89, 103, 143, 149, 153, 163, 166, 179, 194; fines for assisting fugitives, 119, 157, 159; forbidding slaves from owning boats, 146; forbidding slaves from owning ­horses, 141; forbidding slaves from owning real estate, 146, 178; granting to whites the right to kill Blacks, 10, 24, 36, 47, 69, 106, 129, 136–137, 145, 146, 149, 155, 156, 167, 169, 179; incentives to report conspiracies, 161; informed by vagrancy laws of E ­ ngland, 86, 146–147; manumitting whites owned by Blacks, 155; maternal status as determinant of natal alienation, 86, 114, 125; mentions of revolts in, 22, 88, 100, 113, 128, 129, 137, 141, 144–145, 147, 158, 159, 164, 167, 169, 177, 182; natal alienation, 86, 92, 114, 140, 166, 194; “negro” and “slave” interchangeable in, 22, 90, 103, 117, 230n64; outlawing literacy, 145–146; paternal status as determinant of natal alienation, 166; as “the police law of slavery,” 162, 194, 212n39; preventing and punishing r­ esistance, 104, 106, 110, 112, 129, 145, 147, 158–159, 169, 182; preventing sale of liquor, 128, 182, 201; punishment for whites who gather or trade with slaves, 127, 128, 160–161, 177; racial thinking expressed in, 140; regulation of slave participation in economy, 104, 107, 127, 135, 177, 182; regulation of slave trade, xv, 40; responsibility of ­owners, 145, 160; restricting gatherings, 89, 104, 127, 177, 179; restricting manumission, 91, 120, 178, 180, 181; revealing fears of ruling elites, xv, 129, 137; subjecting ­f ree Blacks to policing, 127, 158; used to disarm Blacks, 89, 104, 140, 141, 143, 157, 159, 161, 165, 167, 178; used to divide

257

working class, 155, 160. See also slave passes; slavery: racialization of slave passes: compensation for inspection of, 164, 167; for facilitating and controlling movement, 9, 23–24, 40, 89, 135, 139, 145, 152; first introduced in V ­ irginia, 6, 9, 89; to limit market access, 23, 104, 152; as police technology, 23–24, 139; to prevent insurrection, 164; replaced by work papers ­a fter abolition of slavery, 206; sheriff and constables to inspect, 164; use in M ­ aryland, 166; use in North Carolina, 141; whites required to inspect, 6, 24, 69, 106, 159, 164, 167, 194 slave patrols: assaulting maroon communities, 108, 138, 149–150; benefits to members of, 138, 165, 195; Carolina’s founded, 12, 69, 132, 133, 137, 152, 158, 194; continued influence on police by, 198; cross-­ class alliance and, 138, 200; discretion of, 151, 153; distinct from police, xv; drawn from all classes, 138, 142; enforcing vagrancy laws, 142; to ensure all slaves enriched their ­owners, 134, 139, 147; experiments with compensation for, 142, 165; first police, viii, 41, 134, 152, 196, 197; formation determined by size and proportion of slave population, 131; ­f ree Blacks did not participate in, 168; to fulfill a counter-­insurgent police mandate, 24, 131–132, 137, 147, 151; Georgia’s founded, 148; governed by militia regulations, 137; insurrection caused reorgnization of, 141, 147; mandated duty in, 34, 138, 152; merged with militia, 141, 197; military in origin, 137, 151–152; monitoring taverns and tippling ­houses, 138, 142; policing entire population, 142, 143, 152, 195; as “precursors” to police, viii, xvii, 53;

258

Index

slave patrols (cont.) as primarily urban, 25, 134, 152, 166; principal duties of, 24, 135, 138, 139; as proactive police, 34, 137, 152, 172, 205; punishment for nonser­v ice in, 138; regular pay for, 142–143, 165, 196; regulating trade and markets, 142, 152; searching homes and businesses, 138, 140, 142, 144, 152, 172, 200; as slave-­catchers, ix, 23; South Carolina’s as a model, 148, 197; as “transitional police type,” xvi, 33; turned Blacks into suspected criminals, 138–139; V ­ irginia’s founded, 9, 24, 163, 165, 170; ­Virginia’s stabilized, 165; whites to report o ­ thers for dereliction, 168 slave revolts: as indicator of Blacks as threat to security, 93; arson as tactic in, 174; cruelty of o ­ wners blamed for, 109; New York (1712), 172, 174–175, 180, 185, 186, 189; New York (1741), 172, 183–184, 186, 189–191; punished more harshly than other revolts, 112; as result of enslavement, 100; state unable to prevent, 183; Stono Rebellion, 143–147, 149, 172, 175, 196; thwarted by slave patrols, 165; in West Indies, 69, 91, 93, 133, 174; West­moreland slave plot (1687), 90 slavery: abolition of in E ­ ngland, 13, 17, 85, 108; ­causes of transition to racial chattel slavery, 1, 21, 63–64, 92–95, 98–99; enslaved indigenous p­ eoples, 15, 20, 63–64, 83, 112, 140; a functional necessity, 22, 105, 108, 193; illegally introduced in colonies, 78, 94–95; influence on conceptualization of liberty, 114; influence on racist ideologies, 114; legalization in ­M aryland (1639), 11, 66, 83, 86–88, 166; as a “peculiar institution,” 7, 11–13, 61–62; pro-­s lavery ideology, 64; racialization of, 22, 64, 81, 83–88, 90–92, 113, 134, 155, 162,

166, 172; role in creating race, 57–60, 64; role in creating capitalism, 57–58; Spanish racialization of, 81; urban, 173 slaves: arming of, 22, 137, 140, 157; confiscation of h ­ orses owned by, 141; primary source of l­abor, 154, 163; a social e­ nemy to be contained, 154; use of Indigenes to capture runaways, 167 slave socie­t ies, 12–15, 21–22, 61, 64, 73, 191, 193. See also socie­t ies with slaves slave trade: breaking of Royal Africa Com­pany mono­poly by privateers, 94, 142, 154. See also transatlantic slave trade Smedley, Audrey, 223n4 Snowden, Frank Jr., absence of color prejudice in antiquity, 56 socie­t ies with slaves, 12–14, 64, 93. See also slave socie­t ies South Carolina: Barbadian influence on, 163; doubled size of slave patrols when Spanish invasion feared, 143; influence of its slave patrols in South, 132; population management in, 142, 144; population of, 141, 148, 157 sovereignty, 48–50; distributed, 50, 134, 140, 149, 191, 200, 202–203, 206 state, the: civil society and, 50, 66; demand on police, 37; Marxist theory of, 41–42; mono­poly on vio­lence, 38, 71, 156; origins of, 40, 41; police and, 36; police as human-­scale expression of, 49; relationship with determined by race, 25–26; rule of law legitimizes, 45; sovereignty and, 48, 50. See also police state; Weber, Max: theory of state Stroud, George M., 115 Tocqueville, Alexis de, 51 transatlantic slave trade, 15–17, 63, 92, 117, 118, 193; triangle trades, 98–99. See also slave trade Ury, John, 189

Index

259

vigilante ­organizations, 52, 206 whiteness: constituted by seeing o ­ thers villeinage, 17 as non-­white, 70; defined by policing ­Virginia: arrival of first slaves, 11, 14, Blacks, 61, 68; as enrollment in producing prosperity, 125; naturaliza80; capture of runaways in, 164; compared with Barbados, 163; tion of E ­ uropeans, 180; policing as contribution to E ­ ngland’s income, 77; earning, 200; as a “skin uniform,” 70; as property, 60, 225n46; as violently early years as military dictatorship, 78–79; first comprehensive slave code anti-­Black, 24–25, 70–71, 126, 201. in, 155; first permanent ­English See also En­g lishness settlement, 77; five formally-­ white race: abolition of, 28; aligned with the state, 6; characterized by recognized classes in, 82; headright citizenship, 6, 198–200 system in, 79, 85; land distribution in, whites: conscripted into police, 1; 79–80; laws recognizing racial created with police, 169–170; granted distinctions in, 82, 83; most profitable police power, 9, 10, 23, 25, 50, 67, colony, 163; population management in, 94, 154; population of, 16, 80–81, 89, 103, 134, 149, 164, 170, 194; l­egal 85, 92–93, 158, 164, 165–166; reasons racialization of, 91; as petty soverfor late development of patrols, eigns, 198; protected against enslave165–166; transition to chattel slavery, ment, 193; relationship with the state, 92–93; transition to democracy, 79 200; as self-­possessed, 21, 114, 125, 154; workers o ­ rganizing against Wacquant, Loïc, 66; four peculiar Blacks, 173 institutions, 8, 203–204; slavery a white supremacy, 198–199, 204, 247n60 Williams, Eric: physical punishment of race-­m aking institution, 59–60 servants, 12; racism a rationalization Weber, Max, theory of state, 7, 10, 36, 41–42, 50, 219n33 to justify slavery ­a fter the fact, 21; West, Richard, opposing disenfrantrafficking of white servants as chisement of ­f ree Blacks, 161 pre­ce­dent for slave trade, 93 white: replacing Christian to refer to Williams, Kristian, 31–32 working class, police role in racializing ­European settlers, 232n61; first the, 25 mention in law, 91

About th e Auth or

Ben Brucato is an interdisciplinary theorist of race and police and a lecturer in the Department of Sociology at the University of Mas­sa­chu­setts–­A mherst.

Available titles in the Critical Issues in Crime and Society series: Laura S. Abrams and Ben Anderson-­Nathe, Compassionate Confinement: A Year in the Life of Unit C Laura S. Abrams and Diane J. Terry, Everyday Desistance: The Transition to Adulthood among Formerly Incarcerated Youth Tammy L. Anderson, ed., Neither Villain nor Victim: Empowerment and Agency among ­Women Substance Abusers Miriam Boeri, ­Women on Ice: Methamphetamine Use among Suburban ­Women Christian L. Bolden, Out of the Red: My Life of Gangs, Prison, and Redemption Scott A. Bonn, Mass Deception: Moral Panic and the U.S. War on Iraq Mary Bosworth and Jeanne Flavin, eds., Race, Gender, and Punishment: From Colonialism to the War on Terror Henry H. Brownstein, Timothy M. Mulcahy, and Johannes Huessy, The Methamphetamine Industry in Amer­i­ca: Transnational Cartels and Local Entrepreneurs Ben Brucato, Race and Police: The Origin of Our Peculiar Institutions Loretta Capeheart and Dragan Milovanovic, Social Justice: Theories, Issues, and Movements, revised and expanded edition Kim Cook, Shattered Justice: Crime Victims’ Experiences with Wrong ful Convictions and Exonerations Alexandra Cox, Trapped in a Vice: The Consequences of Confinement for Young P ­ eople Anna Curtis, Dangerous Masculinity: Fatherhood, Race, and Security inside Amer­i­c a’s Prisons Hilary Cuthrell, Luke Muentner, and Julie Poehlmann, When Are You Coming Home? How Young ­Children Cope When Parents Go to Jail Walter S. DeKeseredy and Martin D. Schwartz, Dangerous Exits: Escaping Abusive Relationships in Rural Amer­i­ca Patricia E. Erickson and Steven K. Erickson, Crime, Punishment, and ­Mental Illness: Law and the Behavioral Sciences in Conflict Jamie J. Fader, Falling Back: Incarceration and Transitions to Adulthood among Urban Youth Luis A. Fernandez, Policing Dissent: Social Control and the Anti-­G lobalization Movement Angela J. Hattery and Earl Smith, Way Down in the Hole: Race, Intimacy, and the Reproduction of Racial Ideologies in Solitary Confinement Mike King, When Riot Cops Are Not Enough: The Policing and Repression of Occupy Oakland Ronald C. Kramer, Carbon Criminals, Climate Crimes Timothy R. Lauger, Real Gangstas: Legitimacy, Reputation, and Vio­lence in the Intergang Environment Margaret Leigey, The Forgotten Men: Serving a Life without Parole Sentence Andrea Leverentz, The Ex-­P risoner’s Dilemma: How W ­ omen Negotiate Competing Narratives of Reentry and Desistance Ethan Czuy Levine, Rape by the Numbers: Producing and Contesting Scientific Knowledge about Sexual Vio­lence Clara S. Lewis, Tough on Hate? The Cultural Politics of Hate Crimes

Michael J. Lynch, Big Prisons, Big Dreams: Crime and the Failure of Amer­i­c a’s Penal System Liam Martin, The Social Logic of Recidivism: Cultural Capital from Prisons to the Streets Allison McKim, Addicted to Rehab: Race, Gender, and Drugs in the Era of Mass Incarceration Raymond J. Michalowski and Ronald C. Kramer, eds., State-­Corporate Crime: Wrongdoing at the Intersection of Business and Government Susan L. Miller, Victims as Offenders: The Paradox of ­Women’s Vio­lence in Relationships Torin Monahan, Surveillance in the Time of Insecurity Torin Monahan and Rodolfo D. Torres, eds., Schools ­under Surveillance: Cultures of Control in Public Education Ana Muñiz, Police, Power, and the Production of Racial Bound­aries Marianne O. Nielsen and Linda M. Robyn, Colonialism Is Crime Leslie Paik, Discretionary Justice: Looking Inside a Juvenile Drug Court Yasser Arafat Payne, Brooklynn Hitchens, and Darryl L. Chambers, Murder Town, USA: Hom­i­cide, Structural Vio­lence, and Activism Anthony M. Platt, The Child Savers: The Invention of Delinquency, 40th anniversary edition, with an introduction and critical commentaries compiled by Miroslava Chávez-­G arcía Lois Presser, Why We Harm Joshua M. Price, Prison and Social Death Heidi Reynolds- ­Stenson, Cultures of ­R esistance: Collective Action and Rationality in the Anti-­Terror Age Diana Rickard, Sex Offenders, Stigma, and Social Control Jeffrey Ian Ross, ed., The Globalization of Supermax Prisons Dawn L. Rothe and Christopher W. Mullins, eds., State Crime, Current Perspectives Jodi Schorb, Reading Prisoners: Lit­e r­a­ture, Literacy, and the Transformation of American Punishment, 1700–1845 Corinne Schwarz, Policing Victimhood: ­Human Trafficking, Frontline Work, and the Carceral State Susan F. Sharp, Hidden Victims: The Effects of the Death Penalty on Families of the Accused Susan F. Sharp, Mean Lives, Mean Laws: Oklahoma’s W ­ omen Prisoners Robert H. Tillman and Michael L. Indergaard, Pump and Dump: The Rancid Rules of the New Economy Mariana Valverde, Law and Order: Images, Meanings, Myths Michael Welch, Crimes of Power and States of Impunity: The U.S. Response to Terror Michael Welch, Scapegoats of September 11th: Hate Crimes and State Crimes in the War on Terror Saundra D. Westervelt and Kimberly J. Cook, Life a­ fter Death Row: Exonerees’ Search for Community and Identity