1 See, for example, Hindus, Michael S., Prison and Plantation: Crime, Justice and Author. ity in Massachusetts and South Carolina, 1767–1878 (1980) (“Hindus, Prison and Plantation”); Edward L. Avers, Vengeance and Justice: Crime and Punishment in the Nineteenth-Century American South (New York: Oxford University Press, 1984); Daniel J. Flanigan, “Criminal Procedure in Slave Trials in the Antebellum South,” 40 J. So. Hist. 537 (1974); A. E. Keir Nash, “Reason of Slavery: Understanding the Judicial Role in the Peculiar Institution,” 32 Vand. L. Rev. (1979).Google Scholar

2 There is a large literature on the origins of slavery; see, for example, Winthrop D. Jordan, White over W: American Attitudes toward the Negro, 1550–1812 (Chapel Hill: University of North Carolina Press, 1968).Google Scholar

3 Laws Va. 1662, Act XII.Google Scholar

4 . To be sure, laws in slave colonies and slave states made it a crime for a slave-owner to act cruelly, or to kill his slaves, or any slaves; and there are cases in which slave-owners were punished for such crimes. But masters and mistresses had an undoubted right to punish slaves; and if, as a Virginia statute of 1669 put it, “any slave resist his master … and by the extremity of the correction should chance to die … his death shall not be accompted ffelony.” Laws Va. 1669, Act I. Thus, although any act of a slave in striking or resisting a master was an enormously serious crime, a master was in fact encouraged to whip and punish slaves; and killing a slave was a crime only under extreme circumstances. The caselaw in South Carolina, for example, suggests “that only the most atrocious or public murders [of slaves], frequently committed by men of low standing, resulted in conviction.” Hindus, Prison and Plantation 134.Google Scholar

5 See, for example, Douglas Greenberg, Crime and Law Enforcement in the Colony of New York, 1691–1776 at 74 (Ithaca, N.Y.: Cornell University Press, 1974): “The principle of punishment deterrent infused eighteenth-century thought on the subject of crime. But that principle was even more powerful when applied to … black slaves who, it seemed, could 90 severely threaten the society.” So, for example, if a slave violated Sabbath regulations, it was more serious than if others did so: the act was “heavy with overtones of rebellion and pagan savagery. Acts of violence, whether directly threatening to masters or not, suggested just what slaves might be willing to do to satisfy their longing for freedom.”Google Scholar

6 Spindel, Donna, Crime and Society in North Carolina, 1663–1776 at 54, 55 (Baton Rouge: Louisiana State University Press, 1989) (“Spindel, Crime”).Google Scholar

7 Id. at 88, 90.Google Scholar

8 . Whether to recognize these nuances, and respond to them legally, is of course another, more complex, and more controversial issue. In most cases women who resort to violence in response to violence “have faced difficulties justifying their conduct under conventional legal principles.” Deborah Rhode, Justice and Gender 241 (Cambridge, Mass.: Harvard University Press, 1989); Chris Littleton, “Women's Experience and the Problem of Transition: Perspectives on Male Battering of Women,” 1989 Univ. Chi Legal Forum 23.Google Scholar

9 Ayers, Edward L., Vengeance and Justice: Crime and Punishment in the 19th-Century American South 125–26 (New York: Oxford University Press, 1984).Google Scholar

10 Id. at 130.Google Scholar

11 . The slave's “obedience is the consequence … of uncontrolled authority over the body. … The power of the master must be absolute, to render the submission of the slave perfect.” Ruffin, J., in the well-known case of State v. Mann, 13 N.C. (2 Dev.) 263 (1829).Google Scholar

12 Spindel, Crime 89. On colonial infanticide in general, see Peter C. Hoffer & N. E. H. Hull, Murdering Mothers: Infanticide in England and New England, 1558–1803 (New York: New York University Press, 1981). Examples can be found in most colonies, for example, Elizabeth Greene of Maryland, sentenced to death in 1664. She was unmarried; but, “being bigg with Childe … was delivered of a certaine living man Child which said living man Childe She … did throw into the fire.” Proceedings of the Provincial Court of Maryland, 1663–1666 (49 Archives of Maryland 231, Baltimore, 1932).Google Scholar

13 Hull, N. E. H., Female Felons: Women and Serious Crime in Colonial Massachusetts 47 (Urbana: University of Illinois Press, 1987).Google Scholar

14 The classic study of indentured servitude is Morris, Richard B., Government and Labor in Early America (New York: Columbia University Press, 1946); see also Abbott E. Smith, Colonists in Bondage: White Servitude and Convict Labor in America, 1607–1776 (Williamsburg, Va.: University of North Carolina Press, 1947).Google Scholar

15 Dunn, Richard S., for example, in Sugar and Slaws: the Rise of the Planter Class in the English West Indies, 1624–1713 at 226–29 (New York: W.W. Norton, 1972), argues that the West Indies planters “immediately categorized the Negroes and Indians who worked for them as heathen brutes and very quickly treated them as chattels,” id at 227; and perhaps the same was true for the mainland settlements.Google Scholar

16 See, on this subject, David Rothman, The Discovery of the Asylum: Social order and Disorder in the New Republic (Boston: Little Brown, 1971); Adam J. Hirsch, “From Pillory to Penitentiary: The Rise of Penal Incarceration in Early Massachusetts,” Mich. L Rev. 1179 (1982).Google Scholar

17 Cobb, Thomas R. R., An Inquiry into the Law of Negro Slavery in the United States of America 266 (1858; reprint edition, New York: Negro Universities Press, 1968). Thus, as Cobb states, “death and whipping, being the only available punishments, it becomes necessary, in forming a slave code, to throw all offences under the one or the other.”Google Scholar

18 Hindus, prison and Plantation 100 (cited in note 1). South Carolina continued to use the whip, on offenders of both races, until the Civil War; but there were those who objected to whipping for whites because “it was the characteristic punishment for slaves,” and “shamed whites … in the eyes of blacks.” Id at 101. Nonetheless, whipping persisted.Google Scholar

19 I will forgo quoting from Cobb's depressing account of this subject, except for one example: to add to all their other deficiencies, blacks, “in their native wilds,” and despite “a most productive soil,” have “recourse to the ‘most revolting food, as frogs, lizards, serpents, spiders, the larvae of insects …’” Id. at 39.Google Scholar

20 Quoted in Drew Gilpin Faust, James Henry Hammond and the Old South: A Design for Mastery 85 (Baton Rouge: Louisiana State University Press, 1982). Hammond's slaves repeatedly stole such items as hogs and wine; and runaways were frequent (though never successful). But this insubordination, according to Faust, was “a tool of negotiation, a means of extracting concessions from the master to reduce the extent of his claims over black bodies and souls.” Id. at 94.Google Scholar

21 . Hindus, , Prison and Plantation 147. The workhouse “also served as a jail for slaves and free blacks arrested by the city guard or police and as a holding tank for slaves awaiting sale.”Id.Google Scholar

22 See, for example, Novak, Daniel A., The Wheel of Servitude: Black Forced Labor After Slavery (Lexington: University Press of Kentucky, 1978).Google Scholar

23 On this subject, see Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice and Civil Rights, 1866–1876 (Dobbs Ferry, N.Y.: Oceana Publications, 1985), esp. chs. 7–9; United States v. Cruikshank, Fed. Cas. No. 14897 (C.C. La., 1874); Civil Rights Cases, 109 U.S. 3 (1883); Eric Foner, Reconstruction, America's Unfinished Revolution, 1863–1877 (New York: Harper & Row, 1988).Google Scholar