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"It will be far harder to dismiss the deeply resonant and persistent demand for reparations in the wake of this remarkable collection of interdisciplinary research and historical documentation. This monumental work is ideal for teaching how history and policy intersect."--David Roediger, Kendrick C. Babcock Professor of History, University of Illinois at Urbana-Champaign

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Redress for Historical Injustices in the United States

Duke University Press

Chapter One

DAVID LYONS

Introduction

This essay concerns the creation of racial hierarchy in the United States, its perpetuation, and its persisting consequences. The "racial junctures" are brief periods of U.S. history in which decisions were made that profoundly affected racial stratification.

When Africans first came to the colonies, they did not enter chattel slavery, for there was no such system; it was created by colonial legislatures. After the War for Independence, the slave system was protected by the new Constitution. After the Civil War, slavery was abolished, but the federal government permitted the reestablishment of racial subjugation.

Racial stratification in the United States was not inevitable, at least in any sense that negates moral responsibility. Alternatives were recognized by those who made the relevant decisions. Satisfactory alternatives would have been difficult to achieve, but that is another matter. Consider a recent case. By the time of the 1942 Wannsee Conference, the Nazi leadership had decided to exterminate Jews, Roma, and others. Alternatives were not seriously considered, but they were understood well enough by the conference participants. The Holocaust was not inevitable, at least in any sense that negates moral responsibility.

It is arguable that a fourth racial juncture occurred in the last third of the twentieth century, when America faced its most promising opportunity to eliminate the legacy of slavery and Jim Crow but left the racial hierarchy substantially undisturbed.

The Creation of Chattel Slavery

In 1619, "20 and odd Negroes" were bought from a Dutch ship in Jamestown. This suggests that the Africans were chattels-that they could be bought and sold, were destined for perpetual servitude, and that their children would suffer the same fate. The Virginia colonists had just learned how to survive and perhaps even prosper-by cultivating tobacco as a cash crop for export. That required laborers. Virginia planters initially relied on European indentured servants, who worked for a period of years in return for their passage to America. But the conditions of servitude were typically harsh and the mortality rate was high enough to discourage some potential servants who had a choice in the matter. Inducements were increased, and the costs of importing servants from Britain rose considerably.

When Britain became a major participant in the slave trade, in the last third of the seventeenth century, the purchase of an African slave began to seem economically more attractive to Virginia planters than the price of a temporary servant. Planters began to substitute slave for indentured labor. The same applies to Maryland, where tobacco could likewise be cultivated profitably. Before long, the Carolinas, where conditions favored rice and indigo plantations, likewise imported substantial numbers of African slaves.

But the reference to "slaves" is misleading. We know from case reports as late as the 1670s that some Africans worked as indentured servants and could use colonial courts to enforce their contracts and to secure compensation for service beyond the contractual period. That would not have been possible if the Africans had been chattel slaves.

Unlike Spain and Portugal, Britain had no laws regulating slavery. But the colonists had the power to enact such laws, for the British colonies began as private ventures chartered by the Crown. As royal domains, they were not subject to parliamentary control until the middle of the eighteenth century. They were free to create their own laws, subject only to a Crown veto. And neither the Crown nor, later, Parliament was motivated to interfere with slavery in the colonies, whose economies engaged the British in very profitable activities, including the slave trade itself.

The records of Virginia legislation imply even more clearly that the legal framework of chattel slavery did not exist for most of the colony's first few decades but was constructed during the last third of the seventeenth century. Here are some of the principal measures:

1. The Virginia legislature began the process with its 1662 enactment "that all children borne in this country shalbe held bond or free only according to the condition of the mother." This represents a deliberate departure from the common law. It had been decided that servitude for Africans would be inheritable.

2. As a result of prior contact with Europeans, some Africans had been baptized, and Christian doctrine made them ineligible for enslavement. There was uncertainty among the Protestant churches as to whether the baptism of someone who was already a slave had the same effect. That helps to explain a Virginia enactment of 1667 "that the conferring of baptisme doth not alter the condition of the person as to his bondage or freedome." This permitted both the continued enslavement of someone after baptism and the enslavement of Africans who became Christians before they arrived in America.

3. For masters, discipline of Africans who were held in servitude without indentures presented a problem. The extension of servitude was a punishment available against indentured servants but not against those who served for life. The Virginia legislature addressed the issue in a 1668 enactment by permitting the most severe corporal punishments for those whose servitude could not be extended: "If any slave resists his master ... and by the extremity of the correction should chance to die, ... his death shall not be accompted ffelony, but the master ... 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." This gave masters maximum control over those held in lifetime bondage and adds another constituent of chattel slavery.

4. In 1682, the Virginia legislature addressed the racial dimension of chattel slavery in America by declaring "that all servants ... imported into this country ... whether Negroes, Moores, Mollattoes or Indians, who and whose parentage and native country are not christian at the time of their first purchase of such servant by some christian ... shall be ... slaves to all intents and purposes, any law, usage or custome to the contrary notwithstanding." Lifetime, inheritable slavery was for people of color, and only them. The Virginia legislature was creating a racially differentiated, two-tier labor system.

Colonial records indicate that, prior to this legislation, economic and social stratification had not been tightly color-coded. Marriages with European Americans were not uncommon. Some African servants, including slaves, secured their own freedom, became independent farmers, and joined communities of free African Americans or were recognized as members of racially mixed communities.

Most of the early African immigrants came from the west coast of Africa, where for a century and a half there had been considerable contact with Europeans, and many had been in other European colonies prior to Virginia. They differed from most who came during the height of the slave trade to North America, who came mainly from the African interior and were unfamiliar with...