Race & The American Legal Process: The Colonial Period
Book Author: A. Leon Higgonbotham, Jr.
Dr. RL Booker's Ratings
WRITING STYLE: 4.5/5
DID IT MOVE ME?: 5/5
(Rating: 5 highest & 1 lowest)
"There is a [connection] between the brutal centuries of colonial slavery and the racial polarization and anxieties today. The poisonous legacy of legalized oppression based upon the matter of color can never be adequately purged from our society if we act as if slave laws had never existed."
The Honorable A. Leon Higginbotham, Jr., who served as a federal judge for 30 years took the time to write a brilliant piece of American history that most often goes unnoticed throughout our American public and private school system. This book, In the Matter of Color, was written over a 10-year time period in an effort to find out how race was intentionally used during the colonial period (1600-1800) to chart the path of Americans for the next 7 to 8 generations to come. Through his lens as a federal judge and as a Black man, he took the time to document how the entire legal apparatus was used by those with the power to establish a solid legal tradition for the absolute enslavement of Blacks. Judge Higginbotham stated that "the vacillation of the courts, state legislatures, and even honest public servants in trying to decide whether Blacks were people, and if so, whether they were a species apart from White humans, the difference justifying separate and different treatment." He incorporates more than 1,350 sources from acts, laws, procedures, books, documentaries, and personal accounts of individuals free and enslaved to make his case.
Judge Higginbotham's research was on six of the thirteen colonies. He only focused on six colonies because he believed that, "these six are fair examples of the whole spectrum." The colonies that he researched and wrote about in detail were: Virginia, Massachusetts, New York, South Carolina, Georgia, and Pennsylvania. Many researchers have debated whether enslaved Africans who arrived in North America between 1619 and 1660 were chattel slaves or had more of a status of an indentured servant. To understand this more, Helen Catterall conducted a 1926 analysis of cases adjudicating the rights and nonrights of people during the colonial period and an order of social precedence was apparent. This social order was as follows:
White indentured servants
White servants without indentures (of whom there were two classes, those who came voluntarily and those who came involuntarily)
Christian Black Servants
As Judge Higginbotham wrote about the six colonies there were many themes that emerged throughout the colonies and there were also some differences that I noted as well. Black enslaved peoples without a doubt were considered to be at the very bottom of the social order in the colonies. Things that many of us today consider as a right were outlawed for Blacks during the colonial period. Everything from being able to gather with other Blacks to marrying whoever they chose to marry was prohibited by law. Much like the system of institutional racism that we see today, there was a system in place to make sure that one slave or one plantation owner could not dismantle it.
In Virginia, in 1691 there was an absolute prohibition against freeing enslaved Black peoples. Any plantation owner who freed an enslaved person had to provide transportation for the "negro out of the country within six months after such setting free." Any owner who violated this law was subject to a fine of ten pounds of sterling silver to the church wardens. So this meant that only, "masters with sufficient capital could pay the transportation costs. The poorer planter was forced to continue as a slaver even if he desired to do otherwise."
Pennsylvania and New York also held enslaved Black bodies just as the southern states did. To be clear, the system of slavery in New York and Pennsylvania was very bad for those who had to endure the slavery. The thing that sets these two states apart from the other colonies was the fact that the courts had many debates and rulings that led to the freeing of thousands of enslaved Black bodies decades before the 13th amendment. This was in large part due to White abolitionists like the Quakers. For example, in New York, the first slave-born Black poet to be published in 1760 was Jupiter Hammond. His piece, "An Address to the Negroes of the State of New York" was his last known work where he exhorted slaves to become Christians and rely on the Lord to secure their freedom.
That liberty is a great thing we may know from our own feelings, and we may likewise judge so from the conduct of the white people in the late war. How much money has been spent, and how many lives have been lost to defend their liberty! I must say that I have hoped that God would open their eyes, when they were so much engaged for liberty, to think of the state of the poor blacks, and to pity us. He has done it in some measure, and has raised us up many friends...But this, my dear brethren, is by no means the greatest thing we have to be concerned about. Getting our liberty in this world is nothing to our having the liberty of the children of God...What is forty, fifty, or sixty years, when compared to eternity?
As a Black Christian, Hammonds' poem resonates with me today. I understand it because even in 2021 there are many Black folks that I know personally who continue to hope that God will open the eyes of those in the dominant culture to give us full and equal citizenship. But, even if that does not happen, they, like James Hammond continue to hold on to the hope that, "getting liberty in this world is nothing to our having the liberty of the children of God." Unfortunately, it seems as if we are living a very similar reality as James Hammond almost 300 years later. This leads me to the question that many people of all races are asking today, 'do Black lives really matter'?
Like the founding documents that our legislative system still clings to today, the colonial period consisted of ideals that were aspirational but were very rarely utilized in practice. In the Matter of Color is a 43-year-old piece of awesome literature that exemplifies why in 2021 we are seeing an uprising of Black, Indigenous, Latinx, Asian, and White folk join together to stand against the system that has long oppressed and marginalized people of all races, gender identities, ages, and sexual orientations. While there are many people who do not fully understand how things that happened centuries ago still affect generations of people today, we should listen to and try to understand the words of the major author of the 14th and 15th amendments, Charles Sumner in 1870,
the antislavery society may now die in peace. Slavery is ended...I do not think the work finished as long as the word "white" constrains the courts in naturalization, or if it rules public conveyances, or if it bars the doors of houses bound by law to receive people for food and lodging, or if it is inscribed on our common schools...or until our nation enforces the same rights everywhere throughout the land according to the promises of the Declaration of Independence without any check or hindrance from the old proslavery pretension of State Rights.
Sumner foresaw what is often referred to as a White response to the freeing of enslaved Black bodies and the call for full and equal citizenship. This response has not only continued to rear its ugly head after slavery, or after Jim Crow segregation, or after the civil rights movement, or after Black progress in the 70s and 80s, or after the rise of hip hop culture, or even after the election of the first Black president of the United States.
I would highly recommend this book to anyone who wants to learn about the role that our government played in creating laws and policies that exacerbated and normalized a caste system based on the matter of color. A. Leon Higgonbotham Jr. does an amazing job detailing to us how we got to where we are today. As we continue to live in one of the most polarized times in American history where people are denying reality and actively working to roll back civil rights and voting rights, the words from A. Leon Higginontham Jr. couldn't be more relevant in that, "there is a [connection] between the brutal centuries of colonial slavery and the racial polarization and anxieties today. The poisonous legacy of legalized oppression based upon the matter of color can never be adequately purged from our society if we act as if slave laws had never existed."
Notable Quotes about Slavery in the Colonies
1st case determining that Whites are superior to all races in 1640
"The court heard the case of Robert Sweat, a white colonist charged with having impregnated an unnamed black woman. The court ordered Sweat "to do public penance for his offense ... getting [the] negroe woman with child" and "the said negro woman ... be whipt at the whipping post". The circumstances surrounding the cases of Davis and Sweat are unknown, but the decisions make it quite clear that "negroes" were regarded as separate and inferior."
White Indentured Servants Incentives To Not Help Enslaved Blacks in 1705
"This statute described for the first time this « good and laudable custom » as such: that freed indentured servants « be supplied with:
10 bushels of corn
30 shillings (or the like value in goods)
1 musket worth at least 20 shillings"
Becoming A Christian Does Not Equate To Freedom in 1690
"No slave shall be free by becoming a Christian."
Fine for killing an enslaved person (South Carolina in 1600s-1700s)
"The reward for killing a runaway slave was far less than the fine for teaching him to write...they preferred to keep slaves as ignorant as possible and they feared that educating them could ultimately become a risk for violence from slaves."
One's color becomes an indicator to intentionally separate in 1700
"Slavery had evolved into a racially identifiable institution. Blacks were imported into the colony as perpetual chattel slaves; Indians were captured and made perpetual slaves. Color itself began to indicate a separate, and lower, social class."
Native Americans treated worse than White and Blacks in 1640
In the early case of Re Hope, the Indian, the court had ordered Hope to be severely whipped for running away and other misdemeanor...within forty years the Massachusetts general court chose to treat Indians more harshly.
New York would not have survived without slaves in 1600s
"It is doubtful whether New Netherland (New York) would have survived without slaves"
Becoming A Christian Does Not Equate To Freedom in 1674
"No negro slave who becomes a Christian after he had been bought shall be set at liberty."
The first Georgia law passed to provide direct oversight of Blacks, Police in 1755
"The Regulating Militia Act gave commissioned officers in the militia special powers to enlist militia members to disperse, suppress, kill, destroy, apprehend, take, or subdue...any company of slaves, who shall be met together, or who shall be lurking in any suspected places, where they may do mischief or shall be absent from the service of their owners."
One of the harshest slave codes in America in 1700s
"Georgia's imposition of a slave code ultimately became as harsh as any found elsewhere in America."
Treatment of Enslaved Blacks in Pennsylvania in 1700s
"The legal treatment of free Blacks in colonial Pennsylvania appears to have been as restrive and discriminatory as in any other colony"
Black Children are Not Free, 1725 statue
"The standard legal doctrine in other colonies had always been that the children of free Negroes were free, but Pennsylvania provided that all children of free Negroes or mulattoes or any Black children not be free until at least twenty-one."
Higginbotham Jr., A. (1978) In the matter of color. Oxford, Oxford University Press.