Constructing a Discourse of Indigenous Slavery, Freedom and Sovereignty in Anglo-Virginia, 1600–1750

Abstract

Constructing a Discourse of Indigenous Slavery, Freedom and Sovereignty in Anglo-Virginia, 1600–1750 Kristofer Ray (bio) In 1772 twelve enslaved plaintiffs brought suit in the Virginia General Court for "actions of trespass, assault and battery . . . against persons who held them in slavery, to try their titles to freedom."1 Robin v. Hardaway, as the case is known, was intellectually akin to the more famous Somerset v. Steuart, which was tried at approximately the same moment in London's Court of King's Bench.2 Certainly they both reflected the nascent abolitionist zeitgeist emerging in the British Atlantic. Even so, a major distinction separates them: whereas James Somerset was an African who was captured, sent to North America, and sold to an owner who subsequently took him to London, the twelve Robin plaintiffs had lived in Virginia their entire lives. They traced their lineage through "Indian women brought into this country by traders between 1682 and 1748 . . . and by them sold as slaves under an act of Assembly made in 1682."3 And if Somerset's condition in London forced Lord Mansfield to upend established understandings of the empire's relationship to slavery, the genealogical facts underlying Robin encouraged the Virginia court to confront the historic role of Indigenous people in the American South. Most practically, the court needed to address whether the colonial legislature had ever repealed the 1682 enslavement act. If it had, the court was confronted with the need to determine whether it also overturned hereditary slavery for Indians.4 Lurking beneath both of those issues was a question at the philosophical core of colonial Virginia's slave society: was it just to force bondage upon Native southerners at all? In arguing on behalf of the twelve plaintiffs, attorney Thomson Mason directly addressed that crucial question. He insisted that no English [End Page 19] law between 1585 and 1772 precluded Indians' inherent right to liberty.5 He interwove statutory history with just war philosophy and the "natural condition" of his clients to insist that slavery degraded their status as members of distinct polities. He conceded that the 1682 statute had provided the positive law necessary for holding inherently free people in bondage, but insisted the law was extremely problematic. It had grown out of unjust circumstances, had immediately come under challenge, and was definitively overturned by 1705. Because the plaintiffs descended from naturally free women, then, Mason declared they deserved manumission. Mason crafted his arguments first and foremost to secure his clients' freedom, and, as opposing defense attorneys observed, they were untenable from any historical perspective. Without question, his arguments were inspired by the radical ideas then floating through much of British North America. Yet at the same time they reflected a discourse of slavery, liberty, and Indigenous sovereignty that had evolved over the previous two centuries. This discourse was rooted in Roman tradition, expounded upon by early modern philosophers such as Bartolomé de Las Casas and Hugo Grotius, and intertwined with seventeenth-century Virginia labor statutes.6 For historians it is crucial because it illuminates how early modern Anglo-Virginians placed Indigenous people at the core of the southern experience. This article explores the evolution of a white discourse of Indigenous slavery and freedom, focusing particularly upon seventeenth-century philosophy, law, and Anglo-Indian negotiation. It examines ideas about and reactions to, rather than events in, Indian country. It contends that early modern Virginians centered Indigenous people in their conceptions of law, economy, and culture. By limiting their focus to a racial binary of black and white, modern scholars have created a southern narrative that its early modern inhabitants would not have understood. _______ Virginia's earliest Indian labor statutes grew out of a potent blend of economic interest, local complexity, and just war theory. Rooted in Roman tradition, they more directly emerged out of late-sixteenth-century English boosters' efforts to establish what historian Michael Oberg has described as "dominion and civility" over indigenous populations.7 The idea: as part of claiming North America for their crown, Englishmen would confer their notions of religion, property, society, gender, and [End Page 20] culture upon Indians.8 The process would benefit both the invaders and the invaded...