+Other Processes of Enslavement+
It sometimes happened that the Indians sold to the whites, for a
specified number of years, members of their own tribe as a punishment
for some grievous offense.[676] Families sold some of their own members
into temporary servitude to obtain money or other necessities,[677] or
an individual Indian offered himself or his children as security for
loans, and, on failure to meet the obligations, became the slaves of
the creditors.[678] Occasionally an outcast or disgraced Indian, having
lost his position in the family or the tribe, sold himself into slavery
to the whites in order to escape punishment at the hands of his own
people and to secure future protection for himself.
The treachery of the whites in refusing to give up the Indians at the
expiration of the specified term of service, and the selling of them
out of the country, caused considerable disturbance among the Indians
in several colonies. In 1660, a company of English from Massachusetts
settled on Old Town Creek at its junction with Cape Fear River in
the present North Carolina. The settlement was short lived, lasting
something less than three years. One reason why the settlers left was
the hostile attitude of neighboring Indians who believed that the white
men had shipped off as slaves some of the Indian children who had been
entrusted to their care, under the pretext of sending them north to
be educated.[679] Though the charge has never been substantiated, it
seems probable that it was not without cause. The lax state of morals
among the early settlers would permit the kidnapping of Indians to be
practiced by this little settlement as well as elsewhere. But whether
the settlers were guilty or not on this particular occasion, the
incident throws a certain light on the custom of the times through the
fear which the Indians showed of such treatment.[680] Evidently the
practice continued in North Carolina, for one of the grievances of the
Tuscarora Indians at the breaking out of the Tuscarora War was that
their children who had been bound out for a limited time in English
families, were, contrary to the spirit of the agreement, transported to
other plantations and sold as slaves.[681]
Virginia was always comparatively lenient in her treatment of the
Indians. Accordingly, its early legislation dealt with the matter of
unjustly forcing Indians into slavery. In 1655, provision was made that
Indian children could become indentured servants only by consent of
their parents and for specified terms agreed upon, and such children
were to be educated in the Christian religion.[682] The following
year, 1656, it was provided that Indian children brought into the
colony as hostages should be assigned to masters by choice of their
parents, but should not be made slaves.[683] Again, in 1658, it was
decreed that any Indian children disposed of by their parents to a
white man for “education and instruction in the Christian religion”,
or for any other purpose, were not to be turned over to any other
person upon any pretext whatever, and any such child was to be free
at the age of twenty-five.[684] The fact that the legislation on the
subject was repeated at such short intervals affords evidence of the
continuance of the custom which it was intended to abolish. A letter
of Governor Spotswood to Lord Dartmouth, March 11, 1711, regarding
the Indian college, tells of his attempt to persuade Indians to allow
their children to attend the college by remitting their annual tribute
of skins, and declares that “they were a little shy of yielding to his
proposal, and urged the breach of a former contract made long ago by
this government, when instead of their children receiving the promised
education, they were transported, as they say, to other countries and
sold as slaves”.[685]
Massachusetts sought to control the custom of the Indians in
apprenticing themselves and their children to the whites and the
consequent abuse of the practice, by enacting, in 1700, a law requiring
the consent of two or more justices of the peace to such a proceeding,
so as to make sure that the terms of the agreement were reasonable. The
justices of the regular courts were empowered to hear the complaint of
an Indian with regard to any indenture or apprenticeship, and to settle
the matter.[686] Similar acts were passed in 1718[687] and 1725.[688]
The latter act provided a heavy fine for taking any children beyond the
seas without due legal sanction, and further decreed that any indenture
then existing of an adult Indian should be good for no longer than one
year from the date of the passage of the law, except by legal approval
as specified in the law. In 1763, another act, to continue as law for
three years, was passed, forbidding any Marshpee Indian to bind out his
or her child or children to any English person whatsoever by indenture
or any other way, in satisfaction of or as security for a debt, without
the consent of the major part of the overseers, and declaring that
every indenture or any instrument whatever, or oral agreement whereby
such child or children should be bound out contrary to the true intent
and meaning of the act, should be adjudged null and void.[689]
Rhode Island, also, for the same purpose of preventing the conversion
of apprenticeship into actual slavery, passed an act, June 15, 1730,
requiring the assent of two justices to any bond of apprenticeship to
which the Indians were parties.[690] If the Indian captives disposed
of for periods of years by Rhode Island at the close of King Philip’s
War are to be considered as involuntary indentured servants, then
such abuses as the law of 1730 were intended to remedy existed with
reference to those captives. By the terms of their disposal they were
to be free after a temporary period of service. But the colonists
sometimes continued to hold them in servitude after the specified term
had expired. Furthermore, though no provision for such action was made
by the colonial government, the masters of these servants held as
slaves the children born of these Indians while in servitude.[691]
Conditions in New York in the eighteenth century serve to illustrate
the same point. In July, 1715, Colonel Heathcote wrote home to
Secretary Townsend: “The Indians complain that their children, who
were many of them bound out for a limited time to be taught and
instructed by the Christians, were, contrary to the intent of their
agreement, transferred to other plantations and sold for slaves, and
I don’t know but there may be some truth in what they allege”.[692]
The authorities were aware of the danger caused by the colonists’
action, and in 1750 Governor Clinton ordered all Indian children held
as pledges or slaves, to be returned to their families.[693] Johnson,
the Indian commissioner, was much pleased with the governor’s action
and January 22, 1750, wrote him: “I am very glad that your excellency
has given orders to have the Indian children returned, who are kept
by the traders as pawns or pledges as they call it, but rather stolen
from them (as the parents came at the appointed time to redeem them,
but they sent them away before hand), and as they were children of
our Friends and Allies, and if they are not returned next Spring,
it will confirm what the French told the Six Nations (viz.): that we
looked upon them as slaves or negroes, which affair gave me a great
deal of trouble at that time to reconcile”. Evidently the holders were
disinclined to obey the governor’s order, for Johnson cited in his
letter two cases where such return had not been made, and from which
he feared disturbance.[694] To what extent the governor’s decree was
effective would be hard to state. There certainly were Indian slaves
in the colony after its publication. “A list of the Negro, Indian and
Mulatto Slaves within the district whereof Benjamin Smith is Captain at
Hempstead in Queens County taken the first day of April, 1755,” shows
that Indian slaves were being used on Long Island at that date,[695]
and it seems not unlikely that some of them might have been obtained by
abuse of indenture.
Another process of enslaving Indians was that which had to do with the
infliction of punishment for offenses against law and order. The custom
of sentencing Indians to enslavement at home, or to transportation
and enslavement abroad, for such offenses was general throughout the
colonies. Such a sentence came about in one of two ways: either the
colonial legislature enacted a law which imposed enslavement as the
punishment for a given offense; or a colonial court acting on its own
initiative used it to that end.
In South Carolina, even after the wholesale deportation of captive
and kidnapped Indians for slaves had practically ceased, natives were
sometimes sentenced to slavery by the assembly as punishment for crime
of which the accused was convicted or suspected. Such an instance
occurred, May 29, 1725, when it was “Ordered that Colonel Alexander
Parris, Public Receiver, do forthwith sell the Indian now in jail for
the supposed murder of a white man to the northward of the province,
in order that he may be transferred to Bermuda, Jamaica or Barbadoes,
or some other of the West India Islands.”[696] Again on May 31, 1732,
“His Excellency having asked the advice of the Council in relation to
an Indian delivered up by her own nation, now in jail of this town, on
suspicion of having murdered an Indian trader; it is resolved, that
as it could not be fully proved that she was the person that murdered
the said Indian trader, but strong presumptions appearing ordered that
Colonel Parris cause her to be transported and sold, for the use of
the Publick.”[697] A similar instance occurred in Massachusetts in
1666 when the general court sentenced a Pequot to slavery for life as
punishment for the murder of a white colonist by the Indians.[698]
In Virginia, as a measure of protection to property rights upon a
complaint of damages committed by Indians, the assembly voted in
1660 that the plaintiff in the case be given the right, provided
satisfaction were not made, to sell as many Indians out of the country
as the court might prescribe.[699] Another act of similar character
was passed in 1722 after the treaty of Albany, when the assembly voted
that no Virginia Indian should cross the Potomac River, and that none
of the Five Nations or their allies should go beyond that boundary. Any
offenders were to be punished by death, or be transported and sold as
slaves.[700] In Massachusetts, also, the question of runaway slaves who
sought refuge among the Indians, led the general court, June 2, 1641,
to pass an order by which it was declared to be the mind of the court
“that if the Indians send not back our runaways, then, by commission
of the governor and any three of the magistrates, to send and take so
many as to satisfy for the want of them and for the charge of sending
for them”.[701] The order, like that of the Virginia legislature, meant
that any master might be authorized to right himself upon the Indians
for wrong done him by them.
Not only the higher courts, but the lower courts as well, were
accustomed to make use of this form of punishment. In 1678, the
court of Sandwich, Plymouth, directed that three Indians convicted
of breaking open a house and stealing therefrom, should be perpetual
slaves, and empowered the owner of the house and stolen property to
“make sale of them in New England or elsewhere, as his lawful slaves,
for the term of their lives.”[702]
Their love of strong drink not infrequently led the Indians into
temporary servitude, and served as a means by which the colonists, if
so minded, could force them into that condition. On one occasion Boston
was building a fort on an island in the harbor. Wages were high and
economy was desirable. The general court, therefore, ordered that for
drunkenness the Indians should not be whipped, but sent to this island
to work for ten days. The Indians protested and preferred whipping as
punishment, but their complaint received no attention.[703]
On March 8, 1683, the Plymouth general court decreed that a certain
Indian should serve as a slave for a specified time because of a
judgment against him.[704] At a council held in Boston, also, June 14,
1686, upon notification of the keeper of the prison that a sentence
of transportation of an Indian had not been carried into effect, the
treasurer was ordered to sell the Indian for a period not exceeding
seven years in satisfaction of the judgment against him.[705] The
Massachusetts council records of January 18, 1695, tell of an Indian
accused of “corresponding with and adhering to the Indian enemy” who
was transported and sold for the offense.[706] A similar instance
occurred in 1696, when an Indian was condemned “to be transported
beyond the seas as a dangerous person and sold”.[707] On December
1, 1705, the Massachusetts deputies sent in a bill providing that
fornication or marriage of white men with negroes or Indians should
be punished by selling the colored offenders out of the colony as
slaves. Through the intercession of Samuel Sewall, the Indians were
dropped from the bill which was then passed as applying to blacks and
mulattoes.[708] The records mention other instances in 1713[709] and
1776[710] when Indians were sold as punishment for crime, the latter
case being one of theft. An incident occurred in 1721 when the sentence
of an Indian imprisoned in Boston was changed from imprisonment to
a term of servitude.[711] Another Indian, in 1727, was sold for a
term of years to a resident of the colony to serve a sentence for
debt.[712] In 1739, on petition of the sheriff of Barnstaple county,
the Massachusetts general court impowered the justices of that county
to sell an Indian prisoner convicted of manslaughter and sentenced to
imprisonment “to any of his majesty’s good subjects for a term not
exceeding ten years, for the most he will fetch”, in order to get money
to pay the cost of prosecuting the prisoner and the charges of his
imprisonment.[713]
The Indians of Rhode Island gave much trouble by stealing the goods
and cattle of the colonists. To prevent it, a law was passed, 1659, to
the effect that, if the damage exceeded twenty shillings, the convict
might be sold as a slave to any English plantation abroad unless he
made restitution.[714] Instances are not lacking in which the law of
1659 was put into effect. On one occasion (between 1671 and 1685) an
Indian convicted of breaking into a house and of beating and wounding
a servant, was sentenced to pay a fine, or, if payment were not made
in three months, to be sold as a slave in Barbadoes.[715] In 1676, the
general court provided that all Indians who should come upon any island
in the bay, must have written permission so to do from the committee
appointed to dispose of Indians, without which they would be liable to
be sold into servitude.[716]
The first code of Connecticut laws, 1650, followed the Massachusetts
Body of Liberties in authorizing enslavement as a mode of
punishment.[717] In 1650, certain Indians who failed to make
satisfaction for injuries were ordered to be seized and delivered to
the injured party, “either to serve or to be shipped out ... as the
case will justly bear”.[718] In 1660, the general court was empowered
by the United Colonies to send a company of men to obtain satisfaction
from the Narraganset for certain depredations upon the settlers. Four
of the guilty Indians were to be demanded and sent to Barbadoes to be
sold as slaves.[719]
Not only did the New England colonies take separately such legislative
action regarding the enslavement of Indians, but Plymouth,
Massachusetts, Connecticut, and New Haven acting together as the New
England Confederation, took similar action. Alleged trespassing of
Indians upon English territory, and the fear of a Narraganset war,
led the United Colonies, in 1646, to pass an order authorizing, upon
complaint of trespass by Indians, the seizure of any of them who should
“entertain, protect or rescue the offender”. “And because it will be
chargeable keeping Indians in prison, and if they should escape, they
are like to prove more insolent and dangerous after, that upon such
seizure, the delinquent or satisfaction be demanded of the sagamore
or plantation of Indians guilty or accessory as before, and if it be
denied, that the magistrates of the jurisdiction deliver up the Indians
seized to the party or parties indamaged, either to serve or to be
shipped out in exchange for negroes as the case will justly bear.”
The commissioners agreed that this measure, though just, was severe,
and that it might lead to the Indians seizing the English in return;
but they could see no better means of preserving the peace of the
colony. As a measure of fairness, therefore, they decreed that before
any seizure of Indians was made, a copy of the declaration should be
published and given to the particular sagamore. Copies were accordingly
given to four leading sachems.[720]
A further process of enslavement was connected with questions of birth.
By the recognized common law of nations, the civil law, and the Jewish
law, the children of a slave mother became at birth the property of
the mother’s owner. Nobody thought of the children of slaves being
free. Yet, to make certainty doubly sure, the colonial laws from time
to time considered the matter and declared the common law a part of
colonial legislation.[721] South Carolina, for example, by an act of
1712,[722] repeated in 1722,[723] and 1735,[724] declared that, with
the exception of certain individuals freed by the government, “all
negroes, mulattoes, mustizoes, or Indians which at any time heretofore
have been sold, or now are held or taken to be, or hereafter shall be
bought and sold as slaves, are hereby declared slaves; and they and
their children, are hereby made and declared slaves to all intents and
purposes.” Another act of 1740, though worded differently, decreed a
similar condition for the children of negro, mulatto, mustee and Indian
slave mothers.[725] In 1705, Virginia similarly declared all children
bond or free according to the condition of their mothers;[726] and,
in 1723, decreed that children of female mulattoes or Indians obliged
by law to serve till the age of thirty or thirty-one should serve the
master or mistress of such mulatto or Indian until they should attain
the same age as that up to which the mother was obliged by law to
serve.[727]
A Maryland act of 1663 differs from the acts just mentioned by stating
that “all children born of any negro or other slave, shall be slaves
as their fathers were for the term of their lives.” Another section
of this same act provides that “whatsoever freeborn woman shall
intermarry with any slave, from and after the last day of the present
assembly, shall serve the master of such slave during the life of her
husband; and that all the issue of such free-born woman, so married,
shall be slaves as their fathers were.”[728] Though the law was of
brief duration, persons born of the union between slaves and free
white women, and the descendants of such persons, were held in slavery
down to 1791, when the highest court of the state decided that for
want of proof concerning the white woman who originally married a
slave, her descendants were not slaves, and could not be legally held
as such.[729] A later Maryland act, June 2, 1692, provided that all
children born or thereafter to be born of slaves within the province
were to be slaves for the term of their natural lives.[730] Nothing is
said in the act of children one of whose parents was free. The act was
repealed in 1715.[731] New York, on its own part, in 1706, decreed that
any negro, Indian, mulatto or mustee child should follow the condition
of the mother and be esteemed a slave “to all intents and purposes
whatsoever.”[732] Frequent incidental mention, also, is found in the
documents of the time and in newspaper advertisements to slaves “born
in the house”.[733]
Certain judicial decisions rendered in the trial of cases in federal
and state courts, finally, offer clear indication as to the legality of
holding in slavery the children of Indian slave mothers.[734] Of these
decisions the one rendered by the Virginia court of appeals in 1831 is
particularly instructive. In part it runs as follows: “I cannot for a
moment doubt the propriety of the former decisions of this court, and
of the instructions under consideration, that proof that a party is
descended in the female line from an Indian woman, and especially a
native American, without anything more is _prima facie_ proof of his
right to freedom liable to be repelled by proof that his race has been
immemorially held in slavery; which may be in turn rebutted by the
consideration of the ignorance and helpless condition of persons in
that situation, aided by other circumstances, such as that many such
were bound by law to a service equivalent, in all respects, to a state
of temporary slavery, until they attained the age of thirty-one years;
and in many cases (according to circumstances existing in almost every
case) for an uncertain term beyond that age.”[735]