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The Master's Mercy: Slave Prosecutions and Punishments in York County, Virginia, 1700 to 1780
by Anne Willis
At
the courthouse in Yorktown, Virginia, on May 28, 1763, Cuffy, a black male slave
of the Reverend James Fox of Gloucester County, was tried for attempted murder
by poisoning of ten members of the Walter Lenox family of Williamsburg.1
Governor Francis Fauquier issued a commission of oyer and terminer to York County, and six gentleman justices-John Norton, William Allen, Robert Shield, John Prentis, Robert Smith, and Anthony Robinson-took their places on the high bench beneath the royal coat-of-arms to conduct Cuffy's trial.
Cuffy himself was brought in shackles from the county jail to the courthouse in Yorktown and led to the bar by the sheriff. Benjamin Waller, "Attorney for our Lord the King in this county," and court clerk Thomas Everard took their places in the courtroom. Virginia law defined Cuffy as the chattel property of Reverend Fox. Benjamin Waller described Cuffy as "a person of wicked mind and disposition" and charged him with "wickedly and maliciously intending to murder and destroy the s[ai]d Walter Lenox and his family."2 Testimony from several witnesses was heard by the justices during the trial. Although none of the victims died, the justices nevertheless found Cuffy guilty. He was hanged on June 17, 1763. The General Assembly compensated Fox for Cuffy's value of £60.
The court proceedings in Cuffy's trial demonstrate the legal, moral, and social contradictions inherent in Virginia's slave society. Persons of African descent, such as Cuffy or one of his ancestors before him, had been removed forcibly from his own culture, captured by other Africans who sold or traded him to European slave traders, and transported to Virginia, there to be sold into slavery. In Virginia Cuffy was an outsider, "natally alienated" from the society that now held him in slavery for life.3
The law of slavery in Virginia encoded the contradiction that enslaved people were both chattel property to be bought, sold, and ordered around at the same time they were held to be persons responsible for any criminal behavior in which they might engage. The Virginia slave code took away Cuffy's independence and empowered his owner, Reverend James Fox, to force Cuffy to obey his will. But it was Cuffy-not Fox-who was held responsible by the court for the poisoning mentioned above.
Due process in Virginia for Cuffy (and all slaves) was conditioned by his legal status as an enslaved "outsider" in the colony. For example, in 1692 colonial legislators established county oyer and terminer courts as the venue for trials of enslaved men and women accused of capital crimes (defined as punishable by death or "loss of member"). Free people accused of high crimes in colonial Virginia were taken to Williamsburg for trial in the General Court, often many days' travel away from the defendants' friends and family. The new law changing the locus of slave trials stood to have two desirable effects, at least from slave owners' perspective: speedy trial and deterrence in the accused slaves' home area. The "more speedy prosecution of slaves committing Capital Crimes" was "absolutely necessarie" to make other slaves "affrighted to commit the like crimes and offenses."
This same 1692 statute empowered county sheriffs to hold accused slaves in county jails "well laden with irons." The sheriff then notified the governor who issued a commission of oyer and terminer to the justices of the peace in the county where the crime had taken place. A minimum of four county justices was required to conduct the trial of a slave. Unlike free people in Virginia, enslaved persons were denied trial by jury.4 In 1705 the members of the General Assembly legislated that the master of an executed slave be compensated for the value of that slave.
Between 1704 and 1780 York County's justices of the peace presided over a total of 115 oyer and terminer trials of 154 slaves. The great majority of the crimes in question involved breaking and entering and burglary of personal property. The absence recorded testimony in slaves' own words makes it impossible to determine just what motivated individual slaves to commit these crimes, but the items allegedly stolen provide some hints. These included subsistence for individual slaves, their families, or friends (foodstuffs, money, and some clothing); pleasure (rum and wine); economic advantage through illegal or underground markets (spirits, linens, textiles, fine pieces of clothing, and luxury goods).
White
people in York County after 1730, particularly in Williamsburg and Yorktown,
were subject to a significant increase in property crimes committed by slaves-breaking
and entering and burglary. As might be expected, the property crime rate increased
significantly from 1750 to 1775 as Williamsburg's population doubled. Slaves
had relatively easy access to valuable goods concentrated in the town and the
large number of slaves living in close proximity in Williamsburg provided ready
opportunity for "redistribution" of stolen items.
In York County prosecutions of slaves for property crimes, adjusted for the growth of the slave population in the county, grew substantially during the 1700 to 1780 period. From 1700 to 1729 the rate per 1,000 adults was 0.12, but the rate increased to 2.42 between 1750 and 1780. Interestingly, after about 1740 slaves in York County slaves were less likely than before to take violent action, such as poisoning, rape, murder, arson, or insurrection, against their owners. In fact the rate of conviction in York County court for violent crimes fell from 8 percent for the 1700 to 1729 period to 3.5 percent between 1750 and 1780, the very period when there was a dramatic increase in prosecutions and convictions of slave felons for theft.5
Slaves in York County did not usually use violence to challenge slaveholder authority. From the perspective of white victims of violent slave crime, only one white person died at the hands of a slave in York County over the course of the eighteenth century.6 All in all, over the course of the eighteenth century, slaves in York County did not often commit violent crimes, but when they did, it was more likely to have occurred before 1750. Of the 38 accused slave felons tried in the period from 1704 to 1750, 10.5 percent were tried for crimes of violence, two for arson (convictions), and one for the murder of a fellow slave (conviction). During the next thirty years, 1750 to 1780, only 5.2 percent of accused slave felons were tried for committing violent crimes out of 116 slaves charged: two rapes (one conviction and one acquittal), one poisoning and murder (conviction), one case of arson (conviction), one case of mutilation (reduced to a misdemeanor), and the above-mentioned murder of a white person that was reduced to manslaughter. The one charge of suspected slave rebellion and insurrection in York County (1753) resulted in an acquittal.7 For the whole period from 1700 to 1780, there were only six slaves convicted for violent crimes in York County. In one of those, the victim was a slave and in another the court invited a review and recommended a pardon by the governor and Council.
The great majority of accused slave felons were male; only 8 percent of the 154 slaves arrested and tried between 1704 and 1780 were women. Females made up 38 percent of all slaves prosecuted before 1735, but from 1735 until 1780 only 5 percent of accused slave felons tried were women. In spite of the fact that the rate of crime in the county accelerated after 1740, only five female slaves were accused of committing a felony and brought to trial between the years of 1743 and 1780. Four of the five women were prosecuted for theft, and four were accused of committing the crime with a male slave. Of the five female slaves brought to trial during those years, 40 percent were acquitted and discharged while 33 percent of all accused male slave felons were acquitted.
This significant difference in the prosecution rate from 1743 to 1780, of male and female slaves tried, suggests that powerful cultural influences were exerted on female slaves, perhaps stemming from their African heritage as well as their family and community connections in Virginia. Before 1730 family formation was more difficult for slaves in the colonial Chesapeake because male slaves outnumbered females and most slaves lived on isolated farms and plantations. Women were not as likely to be tied to families and children which may explain the higher proportion of women who were indicted for felonies in the early years of the eighteenth century.
After 1730, however, conditions favorable to family formation improved. Black women, in their child bearing years, were having children on the average of every two to two- and one-half years; consequently many slave women were often pregnant or nursing their infants and caring for young children. Moreover, family units provided masters a potent weapon for controlling slave women-the threat of selling children away from their mothers if the women got into trouble.8 Slave women, then, might have been far less willing to take the risk of committing a felony than male slaves who were often unable to live with their families. In addition, male slaves often had more freedom of movement than females. Work assignments in the fields were very similar for both men and women, but male slaves who were carters or skilled craftsmen often were able to move about unchallenged.
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Slaves knew where valuable objects were to be found in the households of the wealthy or in the storehouses of merchants in Williamsburg and Yorktown. Those living in urban areas would have had much greater access to the goods of other households and businesses. In an urban area, with a higher concentration of slaves, it would have been easier to commit crimes co-operatively and gain assistance for the commission of crimes from others. Dwelling houses, mansion houses, and outbuildings with their valuable and marketable goods were places where most slave crimes were committed. Shops, houses, storehouses, warehouses, and mills were also vulnerable. Only one alleged crime was committed on board a ship even though Yorktown was a busy slave and commercial port in the first half of the eighteenth century.
Of the 115 slaves prosecuted by the justices in York County from 1700 to 1780, slaves who acted alone were the most numerous: 72 percent were committed by a single slave, 22 percent by two slaves, and 6 percent by three or more slaves. The percentage of slaves accused of committing crimes together increased and then peaked in the 1740s and 1750s. Before 1740 there were only two crimes committed by two slaves acting together, but from 1740 to 1770 there were 32 crimes committed by two or more slaves accused of working together. Slave accomplices usually did not belong to the same master.
Of those 32 crimes prosecuted that were allegedly committed by two or more slaves, 30 were theft, one was arson, and one was a suspected slave rebellion and insurrection. Burglaries ranged from the theft of hogs, turkeys, and sheep to theft of expensive clothing and textiles. Many of the stolen goods probably were not used by the slaves who took them, but found their way into an underground marketing network. After 1750 more slaves joined forces to burgle masters' warehouses, mills, and stores. Preventing the criminal activity of a single slave was difficult enough, but preventing organized crime planned and executed by two or more slaves was daunting, and slaves undoubtedly knew that. Slaves who banded together were able to develop networks that provided support and far more resources for criminal activity-directly challenging the masters' control of their own property. Crimes that were committed by more than one person also involved more planning and coordination to execute, and thus served to strengthen bonds among the perpetrators.
Slaves were safer and more mobile at night when they were not under the direct supervision of the master or overseer and when the towns were wrapped in darkness. Fifty-three cases in the York County records documented the time of day when the crimes were committed-all of them took place at night. The law of 1732 that extended benefit of clergy (a form of exemption from capital punishment) to slaves stated that any Negro, Indian, or mulatto condemned to hang for breaking and entering a house at night was not eligible to "pray his clergy."9
During the first half of the eighteenth century, eight slaves were sentenced to be executed by York County oyer and terminer courts. Three of these slaves were convicted of violent crimes (rape, murder, arson, etc.) and five were convicted of breaking and entering and burglary. For the thirty year period from 1750 to 1780,10 however, of the 36 slaves sentenced to hang, only five were convicted of violent crimes, the other 31 of breaking and entering and burglary. When these figures are adjusted for the growth of the slave population in York County, violent crime accounted for three-fifths of the executions between 1700 and 1740, but only one-sixth of the executions between 1750 and 1780.
Governor Francis Fauquier helped alter the pattern of justice for convicted
slave felons long established by the York County justices of the peace. In his
instructions as royal governor of Virginia from King George II, Fauquier was
directed to
". . . get a Law passed (if not already done) for the restraining of any
inhuman Severity, which by ill Masters or Overseers may be used towards their
Christian Servants and their Slaves; and that Provision be made therein, that
the willful killing of Indians and Negroes may be punished with Death. And that
a fit Penalty be imposed for the maiming of them."
Governor Fauquier approved legislation in 1765 that modified the punishments for convicted slave felons by outlawing dismemberment and liberalizing the slave law to allow slaves convicted of manslaughter to escape execution by pleading benefit of clergy. Legislation was not forthcoming from the General Assembly, however, that would have curbed masters' "inhuman Severity" or "the willfull killing of Indians and Negroes" by imposing the death penalty for these crimes. The law of 1669 protecting masters and overseers from prosecution if they caused the death of a slave during a disciplinary action remained in effect.
During
Fauquier's tenure as governor (1758-1768), eighteen slaves were sentenced to
hang for theft crimes by the York County oyer and terminer courts. Fauquier
may have turned to granting pardons to reduce the number of slave executions
ordered by the county justices. Fauquier pardoned a total of eight of the eighteen
condemned slaves. He may have acted for humanitarian reasons, but he may also
have taken other facts of the cases into account. Significantly, with a single
exception, the slaves Fauquier pardoned had acted alone. The governor may also
have taken a look at the value of the goods stolen. For example, the ten slaves
executed for theft crimes during his ten years in office took items ranging
in value from seven shillings to £113. None of the eight felons pardoned
by Fauquier took goods valued at more than about £7.
Despite acute anxiety among white Virginians about the possibility of slave revolts during the revolutionary period, not a single white person in Virginia died in a slave rebellion during those unsettled times. In addition between 1700 and 1780 there was not a single conviction of a slave for instigating a slave rebellion or insurrection in York County. This fact is especially significant because the county included over half of the city of Williamsburg-the colonial center for much of the revolutionary activity. It was also home to a large and strong African American community and where property crimes had increased dramatically since the 1750s.
The absence of a single conviction of a slave for suspected insurrection or rebellion in York County from 1700 to 1780 suggests that slaves were not attempting to overthrow their masters. It is especially significant because York County embraced two important urban areas where it was more likely for group actions among slaves to be planned and executed.
Thomas Cox, a free white man from Charles Parish, was examined by the York County Court on July 17, 1775 on "Suspicion of endeavoring to raise a Conspiracy and Insurrection among the Slaves in this County." After Cox pleaded not guilty to the charge, witnesses were examined, and the court decided that he was not guilty of the felony, but guilty of a "misdemeanor lending to a breach of the Peace." He was ordered to serve one year in prison or give security for one year's good behavior and to "keep the Peace towards all his Majesty's Leige People for one Year."
Thomas Cox's arrest occurred shortly after Governor Dunmore had seized the gunpowder from the Public Magazine in Williamsburg on April 20, 1775, creating great public fear of slave insurrection and rebellion in Virginia communities. Ironically, the threat in July of 1775 came not from a slave, but a free white man.
On the auction block in Williamsburg or Yorktown the enslaved person stood powerless and isolated, identified as property by the masters and purchasing agents. In county courts of oyer and terminer, however, the accused slaves (and Virginia law) forced the justices to regard them as human beings. In the act of charging a slave with a felony, the court acknowledged the free will of the slave in the commission of that crime. To many modern observers of the institution of slavery, the ritual of slave trials in the Virginia colony brings into clear focus the contradiction inherent in a society where the legal code defined slaves as chattel property without rights but also held these same slaves legally responsible for their behavior as human beings. Terrible, indeed, was the "conflict, fear, and accommodation" characteristic of slave societies.
Did York County slaves consciously or unconsciously commit crimes against their
masters and their masters' property to gain some control over their masters?
Did the ritual of court proceedings offer an opportunity to challenge the system
to some slaves? Was this not a way to assert themselves, challenging their masters
and the whole experience of being a slave, as Orlando Patterson would argue,
that "permanent, violent domination of natally alienated and generally
dishonored persons?"
1 The poisonings took place on the York County side of Williamsburg.
2 York County
Court Records Project, York County Court Order Book (The Colonial Williamsburg
Foundation, Williamsburg, Va.), JO (3) 504-05.
3 See Orlando
Patterson, Slavery and Social Death; A Comparative Study (Cambridge, Massachusetts,
1982), pp. 35-76.
4 Hening, ed., The Statutes at Large, vol. 3, pp. 402-403.
5 By contrast, based on Woody Holton's research, masters in other areas of Virginia feared insurrection, especially in 1775.
6 Even in this one case, the charge was reduced to manslaughter with a plea for mercy for the condemned slave.
7 In April 1753 Harry, a slave owned by John Goodwin Junior of York County, and Tom, slave of Peter Goodwin of York County, faced the charge that "with force and arms . . . [they] feloniously did consult, advise, and conspire to rebel and make an insurrection and did also plot and conspire the murder of divers of His Majesty's good and faithful subjects in the parish and county." The justices decided that Harry and Tom were not guilty. York County Judgments and Orders (2), 204-205, April 4, 1753.
8 It is interesting to note that about one-tenth of all runaways in Virginia and Maryland before the Revolution were women-the vast majority were men.
9 There were times, however, when slaves were granted benefit of clergy even when the charges read against them exceeded the limits placed upon accused slave felons by the law of 1732.
10 Does not include trials during the six years between 1754 and 1759 because the court records are missing.
This article was originally published in the Winter
1999–2000 issue of the Colonial Williamsburg Interpreter.
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