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Civilizing The Colonial Subject Servitude Slavery by alicejenny


									“Civilizing” the Colonial Subject: Servitude, Slavery, and State Formation in Colonial South

                                     Daragh Grant
                                    Ph.D. Candidate
                                  University of Chicago

                                Political Theory Workshop
                                  University of Chicago
                                      17 October 2011

                    Please do not cite or circulate without permission
                                                                                       Daragh Grant | 1


Though South Carolina’s colonists may have found it easy to identify the ‘disorderly’ aspects of

indigenous life in America, they found it considerably more difficult to construct the orderly,

civilized society they imagined as the antithesis of barbarism.1 Proprietary South Carolina was far

from being the well-settled government that the Lords Proprietors envisaged in their Fundamental

Constitutions of 1669.2 From the outset, the proprietors faced considerable opposition to their designs

for the colony from the colonists themselves, who frequently ignored the colony’s temporary laws.3

The earliest legislative records of the colony include a host of statutes designed to correct for

indiscipline and malfeasance on the part of the settlers, including charges of illegal enslavement of

Indians, piracy, and desertion by indentured servants.4 As late as the second decade of the eighteenth

century, the Anglican missionary Francis Le Jau called for a “Reformation of Manners” of the

settlers. Highlighting the need for these settlers to “pray and Edify and exhort one another as we

have opportunity,” he worried that “The Evil cannot be stop’t for want of Authority to repress it”.5

The process of colonial state formation was, therefore, as much an issue of creating sustainable

institutions of rule and reproducing relations of governance over the colonists, as it was a process of

repelling the forces of “barbarism” in order to fashion a space of “civilization.” I argue that these

processes were wholly interdependent—to define a space of civilization set off against a space of

barbarism, that is, settler colonists first had to produce (and reproduce) what they saw as the

conditions of civilized society.

        In this paper, I examine the appearance of the state in colonial South Carolina through a

focus on the development of institutions to police and manage the colony’s unfree labor force.

These institutions offer an exemplary case of the assertion of public authority over a host of

relationships, many of which were initially considered to be private relations of ownership divorced

from the sphere of public law. I examine how efforts to control and police Carolina’s labor force
                                                                                         Daragh Grant | 2

entailed, simultaneously, the decentralization of the power of enforcement of Carolina’s labor laws,

and a centralization of authority over the classification and appropriate management of labor. By

authority, I mean to suggest that act which confers legal validity on the actions of others. As Giorgio

Agamben has noted, whether in private or public law, “auctoritas [authority] is the property of the

auctor who intervenes … in order to confer legal validity on the act of a subject who cannot

independently bring a legally valid act into being” (Agamben 2005, 76). Drawing on the Roman legal

tradition, Agamben argues that just as the authority of the father, in the sphere of private law, made

valid the marriage of the son, so too did the authority of the Roman Senate confer “legitimacy” on

the force employed by the magistrate in his execution of that law (76-9). In contrast to the canonical

accounts of state formation in Europe, the case of South Carolina suggests that the state became

apparent less through the centralized accumulation of power, than through the extension of

relations of authority and obligation over a population. That is to say, the state emerged in South

Carolina not through the monopolization of “legitimate” force, as in Max Weber’s canonical

formulation, but rather through the assertion of a monopoly over the question of legitimacy itself.

The state was endowed as the sole auctor, the lone actor capable of conferring legal validity on the

actions of citizens, subjects, and agents of the state. It is this claim to a monopoly over the question

of legitimacy itself, I argue, that stands as the peculiar power associated with the modern state.

          Taking the security of the colony and its inhabitants as its raison d’être, the colonial

government enacted laws designed to deal with the threats posed by unfree laborers. This body of

law was elaborated through a double movement—the vesting in the state of the power to make the

enslavement and enserfment of people legally valid and to authorize a host of brutal punishments to

preserve this population in its servitude, and simultaneously the devolution of the legal power to

enforce these laws to agents of the state, to the freemen of the colony, and even to the Indian tribes

that lived within and beyond the colonial frontier. Though the burden of legislation that regulated
                                                                                          Daragh Grant | 3

labor in Carolina fell most heavily on formally unfree laborers, this legislation also placed

considerable legal obligations on the landed elite of slave-owners and on the freemen of the colony.

Free and unfree colonists were bound by these laws, obligated on pain of punishment to follow their

decrees, to enforce their restrictions and, crucially in the case of freemen, to recognize the limits

these laws placed on their power over unfree laborers. I argue that this monopolization of authority,

and the forms of policing and social control it entailed, rested on the same discursive foundation as

the idea of the colonial “frontier,” which I discuss in an earlier chapter—namely, on the distinction

between civilized spaces of law and a savage world of barbarism beyond the law. Within the space of

the colony, however, the savage/civilized binary took a slightly different form. Used as a justification

for the introduction of parallel legal regimes applied to different populations, this discourse was

reshaped and rearticulated through a host of categorical divisions that worked to separate the

community of unfree labor into antagonistic cohorts. This discourse also worked to foster a division

between those colonized by their subjugated inclusion within the space of the colony, and those

colonized by their exclusion from that colonial space. Just as the division between an interior space of

law and civilization and an exterior space of savagery and barbarism worked to exclude the majority

of the indigenous population from colonial life, so too was it employed to shore up a distinction

within the colony between those who were already “civilized” and those who were to be civilized by

the law.

           Finally, I conclude with a discussion of the explicitly spatial dimension of colonial policing.

Although the primary target of the colonial legislation discussed in this paper was unfree labor, I

examine how the extension of the institution of policing over space necessitated the policing and

regulation of the entire colonial population, whether free or unfree, and irrespective of economic

class. Moreover, in focusing on the explicitly spatial aspects of colonial legislation, I show how the
                                                                                        Daragh Grant | 4

space of “civilization” that was defined in opposition to a barbarous exterior depended on the

preservation of a distinction between “inside” and “outside” for its very stability.

The demographics of unfree labor in colonial South Carolina

From the first settlement of Carolina, the colonial law contained a distinction between types of

unfree labor. The Lords Proprietors differentiated between two classes of unfree laborer—African

slaves and “leet-men”.6 The attention to each of these categories in the Fundamental Constitutions

suggests that whilst the proprietors anticipated the use of slaves in the colony, they envisaged this as

a minor part of the colonial workforce, with most labor being provided by enserfed “leet-men”

employed in a neo-feudal variant of the lordly manor.7 However, the critical role played by settlers

from Barbados in the 1670 settlement of Carolina, coupled with the unwillingness of English settlers

to part with the relative freedom they had become accustomed to under the English

Commonwealth, led to the replacement of the neo-feudal vision of the proprietors with a system of

large-scale plantation agriculture (Hughson 1894b, 472-3; Sirmans 1962, 463-4; Tomlins 2010, 432-

3).8 This Barbadian agricultural model depended heavily on African slave labor. Whilst this model

was central to the shaping of Carolinian agriculture, its influence was neither determinate nor

complete. Settlers from the West Indies also employed a significant number of indentured white

Europeans, a category of labor they also imported to Carolina (198-9; Smith 1961, 3, 21).9 It wasn’t

until the final years of the seventeenth century that the plantation-owners of South Carolina began

to express a clear preference for African slave labor. This was a result both of the difficulty in

attracting high quality laborers as indentured servants, and of a preference for the specific

knowledge, experience, and skills that Africans brought to the cultivation of rice, the new staple crop

of South Carolinian agriculture.10 Nevertheless, the distinctions between enslaved Africans and

indentured Europeans continued to be an important feature of the South Carolinian economic

                                                                                          Daragh Grant | 5

        The changing shape and composition of South Carolina’s laboring classes in favor of African

and West Indian slaves toward the end of the seventeenth century intensified a long-running

concern with policing the labor force and preserving colonial order against perceived domestic

threats. This concern was readily evident in the newfound practice of monitoring colonial

demographics. The first colonial “census,” reported by Governor Nathaniel Johnson in 1708,

coincided with the emergence of a non-white majority in the colony (Clowse 1971, 251-2; Little

1993, 89; Wood 2003, 224-5). This census divided the colony’s inhabitants into eleven categories:

freemen; free women; white servant men; white servant women; white free children; Negro men

slaves; Negro women slaves; Indian men slaves; Indian women slaves; Negro children slaves; and

Indian children slaves.11 The tendency in the literature when examining this census has been to focus

only on the figures for “white” and “black” inhabitants in the colony, and to combine the colony’s

European inhabitants, whether free or indentured, into a single demographic category (Clowse 1971,

251-2; Little 1993, 89). However, it is noteworthy that in 1708 the colonial government did not give

primacy to epidermal distinctions. Instead, in dividing the population of South Carolina along

epidermal lines, gender lines, and according to their status as free or unfree persons, the colonists

betrayed the relative instability at this point of the emergent notion of “white” identity. A posited

opposition between “white” colonists and their “black” and “red” neighbors, and the attendant

claim of European colonists to moral supremacy, eventually formed the foundation of claims to a

“white” identity capable of absorbing European settlers of diverse religious, linguistic, and

geographic origins.12 However, tracing that process of evolution depends on explaining how specific

cleavages between different segments of the colonial population came to be salient in the first place.

It is only by recognizing the tenuousness of these divisions in the earliest days of the colony that it is

possible to account for their eventual appearance as part of the horizon of the taken-for-granted of

colonial society.13
                                                                                          Daragh Grant | 6

        A second set of censuses produced a decade later, between 1715 and 1720, already indicate

the solidification of demographic categories based on epidermal distinction. Though the main focus

of the census of 1715 was on enumerating the size and strength of the surrounding Indian

communities, it was followed up by two reports estimating the number of inhabitants of the

province itself.14 These reports, one produced by the Commons House and another by the South

Carolinian agents in London, John Barnwell and Joseph Boone, both estimated the number of

“white” inhabitants in the province to be about 9,000, of whom only 2,000 were men of fighting age

(between 16 and 60). Of the three census reports between 1715 and 1720, only Barnwell and

Boone’s gives an estimate of the number of black inhabitants in the province, estimating it at 12,000.

Barnwell and Boone note that the increase in the size of the black population relative to that of the

colony’s white inhabitants was “to the great indangering of the Province”.15 As the colony was

recovering from the devastating effects of the Yamasee War, the domestic threat posed by enslaved

African labor was constantly kept in focus—the colonial order, that is, had to be preserved against

threats from both inside and outside.

        It is noteworthy that none of these later reports mention the number of white indentured

servants or of Indian slaves, reflecting the crystallization of an intra-colonial cleavage defined

primarily by epidermal, rather than, say, gender or legal-status distinctions. It seems unlikely that this

was solely a result of a significant decline in the use of indentured white and Indian slave labor. The

legislative record offers some evidence that the number of white servants in Carolina was actually

increasing through this period. In 1717, for example, the colonial government felt it necessary to

pass “An Act for the Better Governing and Regulating White Servants,” the preamble to which

described the “late [arrival] in this Province [of] great numbers of white servants, which for want of

sufficient rules to order, direct and govern them, have proved of bad consequence to their masters,

owners and overseers”.16 Although the act of 1717 makes clear the perceived need to bring newly
                                                                                        Daragh Grant | 7

arrived white servants to order, the relative lack of concern with their numbers, when compared to

African slaves, suggests that there was little concern by this point of a conspiracy between blacks

and whites, or of a generalized revolt by unfree laborers.17 In fact, despite evidence of collusion

between unfree whites and African slaves in other colonies in the late seventeenth century, the

government of South Carolina justified the importation of more white servants by stressing their

utility as a bulwark against the threat of black slave insurrection (Jervery 1911, 165).18 Similarly, it

seems unlikely that the 1,400 Indian slaves recorded in 1708 would have disappeared from the

province a mere decade later. More likely is that following the precipitous decline in the number of

newly enslaved Native Americans following the Yamasee War of 1715-1717, concern with threats

posed by this demographic category dissipated, or alternatively that the colonists simply came to

assimilate enslaved Indians into the category of “negro slave” for the purpose of demographic

calculations.19 Either way, it is clear that by 1720 the demographic categories of concern to the

colonial state were those of “whites,” “blacks,” (with its various synonyms or close associates

“negro,” “mulatto,” etc.) and “neighboring Indians” (i.e., those external to the colony). By 1729,

reports of colonial demographics focused exclusively on the first two categories, as the government

sought to manage a population that contained at least two black slaves for every one white person.20

       Troubled by this growing demographic imbalance, first between free and unfree inhabitants

of the colony, and later between “whites” and “blacks,” successive colonial governments sought to

manage the risks posed by a subjugated workforce that was formally unfree and growing as a

proportion of the colony’s population. Constitutional and statutory instruments designed to regulate

the labor force in South Carolina addressed two related questions: the legal status of the servant or

slave before the law, and the means by which the servant and the slave could (or could not) be

policed, controlled, and punished. In the earliest years of the colony, this took the form of a

progressive identification of the state as the arbiter in the relationship between master and slave. The
                                                                                        Daragh Grant | 8

colonial assembly asserted itself as the body competent to give legal validity to and withdraw legal

validity from the actions of the master and of the slave. Understood as the repository of public law,

the state was already seen as having the power to govern the interactions of a freeman or of his slave

with the rest of colonial society. In this instance, however, the authority of the state was extended to

cover interactions within the formerly private relationship of master and slave. Much as the state

already stood as the guarantor of legal contracts between indentures and their masters, so it was now

asserted as the competent authority to judge the legality of the relationship between a master and a

slave, and to recognize (or not) the “legitimacy” of the day-to-day workings of the institution of

slavery. Whilst some colonists did express concerns about the inhumane treatment of slaves by their

masters, the close relationship between the timing of slave legislation and rumors of insurrections in

other colonies suggests that this assertion of state power over the historically private relation

between master and slave is best understood in the context of fears that such insurrections would

spread to South Carolina (Little 1993, 89-90).21 This is further supported by evidence that the

colonial government was particularly concerned that the failure to punish slaves for minor

infractions would lead to lax control over unfree laborers (Roper 2007, 402). However, the limits

placed on masters’ treatment of their slaves, and specifically the prohibition on “cruel” treatment,

also suggests that the government was concerned that overly harsh punishments could pose a

significant threat to the stability of colonial labor relations. The master then, as much as the slave,

was to be restrained by the law in the name of public order.22

John Locke, slavery, and the definition of unfree labor

In orienting itself toward threats that were explicitly understood to be “domestic,” the colonial

government invoked and instantiated a bounded space of social order and simultaneously traced the

limits of that order. A close reading of the legal ordinances proposed for dealing with the issue of

unfree labor can shed light on the way in which state power was elaborated in South Carolina, but it
                                                                                         Daragh Grant | 9

is also critical to understanding how the boundary between “inside” and “outside,” between the

realm of the “civilized” and that of the “savage,” was traced in the project of settler colonialism.

        The first mention of the legal status of the slave in the law of South Carolina came in the

Fundamental Constitutions of 1669.23 An early draft of the constitutions afforded a slave-owner

“absolute Authority over his Negroe slaves, of what opinion or Religion soever.” John Locke, the

then Secretary to the Lord Proprietors, added an important marginal edit to this article.24 In the

published copy of 1669 and all subsequent iterations of the constitution, slave-owners were afforded

an augmented control over their slaves with the more expansive right of “absolute power and

Authority”.25 Locke’s alteration of the text is usually read against his own justification of slavery in

the Second Treatise of Civil Government (Armitage 2004; Farr 2008; Tomlins 2010). In that later work,

Locke identified the justification for slavery at the intersection of just war theory and Natural Law:26

        [H]aving, by his fault, forfeited his own Life, by some Act that deserves Death; he, to whom
        he has forfeited it, may (when he has him in his Power) delay to take it, and make use of him
        to his own Service, and he does him no injury by it. For, whenever he finds the hardship of
        his Slavery out-weigh the value of his Life, ‘tis in his Power, by resisting the Will of his
        Master, to draw on himself the Death he desires.27
             This is the perfect condition of Slavery, which is nothing else but the State of War
        continued, between a lawful Conquerour, and a Captive. For, if once Compact enter
        between them, and make an agreement for a limited Power on the one side, and Obedience
        on the other, the State of War and Slavery ceases, as long as the Compact endures. For, as
        has been said, no Man can, by agreement, pass over to another that which he hath not in
        himself, a Power over his own Life.28
The just war aspects of Locke’s theory of slavery are elaborated in later chapters, and specifically

when he says:

        But there is another sort of Servants, which by a peculiar Name we call Slaves, who being
        Captives taken in a just War, are by the Right of Nature subjected to the Absolute Dominion
        and Arbitrary Power of their Masters;”29
        “He that Conquers in an unjust War, can thereby have no Title to the Subjection and
        Obedience of the Conquered;”30 and
        “The power a Conquerour gets over those he overcomes in a Just War, is perfectly
        Despotical: he has an absolute power over the Lives of those, who by putting themselves in
        a State of War, have forfeited them; but he has not thereby a Right and Title to their
                                                                                        Daragh Grant | 10

In the Second Treatise, therefore, the slave was subject to the sovereign will of the master, in much the

same way that the slave in Carolina was subjected to the “absolute power and Authority” of the

master in his edited provision of the Fundamental Constitutions.32

        Although considerable attention has been paid to the inclusion of the words “power and”

into the draft of the Fundamental Constitutions, and the putative revival of the Roman legal notion of

paterfamilias entailed in it, almost no attention has been paid to the meaning of the original notion of

“absolute Authority,” or to the perceived need to augment this “authority” with “power.” That this

distinction between “power” and “authority” was, in Locke’s lifetime, a relatively novel distinction in

English political philosophy, makes this lacuna all the more surprising. Richard Tuck has shown that

this power/authority binary was an innovation (or rediscovery) of the English Civil War (Tuck

1974). Though both terms were in common usage prior to the seventeenth century, English political

philosophers largely treated them “as complete synonyms” (44).33 In discussing Locke’s work, Tuck

points to the distinction he draws between “power” and “force,” arguing that for Locke “power”

was synonymous with the concept his contemporaries termed “authority,” or the power of the law

(potestas). Conversely, Locke used the term “force” to connote material capability (potentia), or what

the wider community of English political philosophers (confusingly) termed “power” (57).34

However, despite Tuck’s argument that Locke’s power/force binary maps on to that of

potestas/potentia, and in the seventeenth century (and since) to the emergent authority/power binary, a

perusal of the textual evidence Tuck himself relies upon suggests that Locke is using “authority” as a

third term to represent a concept irreducible to either side of the power/authority binary identified

by Tuck. This concept of “authority” is not a synonym for “power” (potestas) as distinct from

“force” (potentia), but appears to refer instead to that which transforms “force” into “power” (i.e.,

that which infuses power with the force of law) and which, conversely, can suspend “power” by

stripping the Magistrate of his “legitimacy”—rendering him “without Authority”. It is this sense of
                                                                                        Daragh Grant | 11

“authority”—as auctoritas—that Locke invokes, and that I argue is critical to understanding the

emergence of the modern state.35

        Examining some of Locke’s later political writings such as his Letter Concerning Toleration

(1689) and the Second Treatise (1690), this three-fold distinction between power, force, and authority

is clearly in view. In the Letter Concerning Toleration, for example, he depicts the relationship between

power, force, and authority as follows:

        The Commonwealth seems to me to be a Society of Men constituted only for the procuring,
        preserving, and advancing of their own Civil Interests. … It is the Duty of the Civil
        Magistrate, by the impartial Execution of equal Laws , to secure unto all the People in
        general, and to every one of his Subjects in particular, the just Possession of these things
        belonging to this Life. If any one presume to violate the Laws of Publick Justice and Equity,
        established for the Preservation of those things, his Presumptiomn is to be check’d by the
        fear of Punishment. … [T]he Magistrate [is] armed with the Force and Strength of all his
        Subjects,36 in order to the punishment of those that violate any other Man’s Rights. …[T]he
        whole Jurisdiction of the Magistrate reaches only to these Civil Concernments; and … all
        Civil Power,37 Right and Dominion, is bounded and confined to the only care of promoting
        these things. … Because the Care of Souls is not committed unto the Civil Magistrate, any
        more than to other Men. It is not committed unto him, I say, by God; because it appears not
        that God has ever given any such Authority38 to one Man over another.39; and
        If the Law indeed be concerning things that lie not within the Verge of the Magistrate’s
        Authority;40 (as for Example, that the People, or any Party amongst them, should be
        compell’d to embrace a strange Religion, and join in the Worship and Ceremonies of another
        Church,) men are not in these cases obliged by that Law, against their Consciences. For the
        Political Society is instituted for no other end but only to secure every mans Possession of
        the things of this life. The care of each mans Soul, and of the things of Heaven, which
        neither does belong to the Commonwealth, nor can be subjected to it, is left entirely to every
        mans self.41
Locke offers a similar distinction in the Second Treatise:

        Political Power … I take to be a Right of making Laws with Penalties of Death, and
        consequently all less Penalties, for the Regulating and preserving of Property, and of
        employing the force of the Community, in the Execution of such Laws, and in the defence
        of the Common-wealth from Foreign Injury, and all this only for the Publick Good.42; and
        Where-ever Law ends, Tyranny begins, if the Law be transgressed to another’s harm. And
        whosoever in Authority exceeds the Power given him by the Law, and make use of the
        Force he has under his Command, to compass that upon the Subject, which the Law allows
        not, ceases in that to be a Magistrate, and acting without Authority, may be opposed, as any
        other Man, who by force invades the Right of another.43
                                                                                        Daragh Grant | 12

The John Locke of the late seventeenth century, therefore, employed the term “power” to refer to

power that is authorized in the application of the law (potestas). In distinction to “power,” Locke uses

the term “force” to refer to raw material capability, which is a function of might (potentia). In Locke’s

theory of political power, authority (auctoritas) is invested in a dual standard of Natural Law and

popular consent. In arguing that “the Law of Nature stands as an Eternal Rule to all Men, Legislators

as well as others,” Locke was, in Tuck’s words, “putting forward a very strong claim that a

magistrate’s authority depended on the moral rightness of his actions” (Tuck 1974, 57).44 However,

for Locke, following the “Law of Nature” was not itself sufficient to confer authority, which instead

demanded the consent of society. As Tuck puts it, the “Legislative Power could only be erected by

the consent of the society, and the society could only consent to a just Legislative” (57).

        This detour through Locke’s theory of political power is important for understanding the

meaning attached to the grant of “absolute power and authority” to a South Carolinian slave master

over his slaves. Specifically, it is critical to understanding the extent to which the position of the

slave-owner was augmented in 1669. The slave-owner was no longer merely given the power to

legitimate a slave’s actions before the law as the person sui iuris whose intervention is capable of

providing legal competence to the actions of the slave.45 Instead, he or she was afforded the absolute

power over the life and death of the captive laborer. Put another way, the slave was deprived of any

legal status in his or her own right and, more pressingly, was subject to the sovereign power of the

master understood here as a fusion, at the limit, of legal power (potestas) and force (potentia). As the

possessor of absolute power and authority over his slaves, the master was in a position to authorize

his own use of force over them.46

        Much as Locke’s theory of political power is instructive, however, the full implications of

this revision of the Fundamental Constitutions can only be understood by situating the power of the

master over the slave outside the theory of political power. As paterfamilias, that is, the slave-owner’s
                                                                                       Daragh Grant | 13

relationship to his slave was understood (at least by slave owners and colonists) as a matter of

private, rather than public law—a question of private property (dominium). For the South Carolinian

government, slavery was not political. Rather, it was a “despotical power,” which Locke elsewhere

described as “the effect only of Forfeiture, which the Aggressor makes of his own Life, when he

puts himself into the state of War with another”.47 In another sense, more in keeping with the

notion of the paterfamilias, the despotical claim of “absolute power and authority” over one’s slave

appears as an extreme case of paternal power.48 Revealingly, Locke’s only use of this turn of phrase

in his Two Treatises of Government comes in the chapter “Of Paternal Power” in the Second Treatise,

where he speaks of the “Absolute Power and Authority of the Fatherhood”.49 That Locke

recognizes significant limits on the power of the parent over its child when compared to the power

of a master over his slave is certainly instructive. However, what is especially noteworthy is the

manner in which he traces, in the Second Treatise, the distinction between the public and the private in

respect of these relationships—between the reach of public law and that of private law. This, I

would argue, is precisely the implication of the augmentation of the power of the slave-owner over

his slaves in the Fundamental Constitutions:

        But these two Powers, Political and Paternal, are so perfectly distinct and separate; are built
        upon so different Foundations, and given to so different Ends, that every Subject that is a
        Father, has as much a Parental Power over his Children, as the Prince has over his; And
        every Prince that has Parents owes them as much filial Duty and Obedience as the meanest
        of his Subjects do to theirs; and can therefore contain not any part or degree of that kind of
        Dominion, which a Prince, or Magistrate has over his Subject.50
At least initially, then, slaves in South Carolina existed within the dominium of the master and his

treatment and governance of them was a matter of private rather than public law. As the Fundamental

Constitutions put it, the slave existed in the “civil dominion his master has over him”.51 In short, the

legal power of the magistrate (potestas) or of the Sovereign (imperium) did not touch the relation

between a master and his slave.
                                                                                        Daragh Grant | 14

        As the colonists began to assert themselves both in opposition to the Lords Proprietors and

as a government over colonial space, the despotical power of the master over his slave, like many

other provisions of the Fundamental Constitutions, was supplanted by legislation produced in the

colonial assembly. This assertion of state authority over the master-slave relationship was founded

on three particular changes that were intimately bound-up with the formation of state institutions in

South Carolina. First, the identification of slaves, and of laborers more broadly, as targets of policing

involved the transformation of the relationship of master and slave from a private one, located

outside of the sphere of public law, to a matter of public concern. Second, the status of the slave

was, albeit tenuously, given a statutory foundation, becoming a matter of positive law. Third, and

finally, the law became the site of distinction between different classes of labor (slave and servant),

utilizing a mechanism that identified the divisions among laboring classes primarily by the color of a

laborer’s skin.

        In the most radical of these changes, the colonial government sought to transform the state

into the mediator of the relationship between master and slave, and crucially into the regulator of

that relationship in the name of public order. An act of 1687 prohibiting the trading of goods with

slaves or servants, for example, identified the Grand Council or a panel of two Justices of the Peace

as the appropriate authority to judge the guilt of, and assess the penalty for, slaves or servants caught

trading goods belonging to their masters.52 Similarly, a succession of Acts for the “better ordering”

of slaves passed in the colony from 1691 onwards established a special court for the trial of slaves

for major offenses, which was presided over by two justices of the peace and three freeholders.53 In

contrast to the terms of the Fundamental Constitutions, which identified the master as the sole authority

for determining the acceptable limits of his slaves’ behavior—for deciding the guilt or innocence of

his slave—and for deciding on and executing the appropriate punishment, these legislative changes

took each of these roles under the jurisdiction of the state.
                                                                                         Daragh Grant | 15

        Although the slave-owner retained responsibility for punishing minor offenses, the state had

added two constraints on his power. First, the master was required to punish slaves guilty of minor

offenses, even where the victim of those offenses was the master himself, with any failure to do so

incurring a fine of 40 shillings. The master, that is, became an agent of the state—the bearer of the

legal power (potestas) of a magistrate with respect to his slaves, which he was strictly obliged to apply.

His relationship to the slave was no longer the purely private relation of ownership (dominium), but

was saturated with a public obligation to ensure the orderliness of one’s slaves.54 This requirement

was further extended to the population of white freemen as a whole. Slavery statutes frequently

required freemen of the colony to challenge slaves encountered outside of a plantation to produce a

letter or “ticket” of permission from their master.55 Similarly, in the slave statute of 1701, the

government asserted the authority to impress free whites into slave patrols. Town constables were

given the legal power to fine any white man refusing to serve (Roper 2007, 403).56

        The second constraint placed on a master’s power over his slaves limited the force he could

use to discipline his slaves to those punishments sanctioned by the law. The master could punish a

slave only to the extent allowed by the law, and any use of force in excess of that allowed by law was

prohibited. For example, under the terms of the act of 1691 any person (including the slave-owner)

who killed a slave “out of wilfulness, wantoness, or bloody mindedness” was to be imprisoned and

forced to pay fifty pounds to the owner of the slave.57 Given that slave-owners were empowered to

punish a slave for running away, resisting confinement, or refusing to work, up to the maximum

penalty of death (under specific circumstances), this limitation on the power of the master afforded

little comfort or protection to slaves.58 Nevertheless, it exemplified a shift in the foundation of the

institution of slavery, and the assertion of state power over the previously private relationship.

        The second change through which the state insinuated itself into the relation between master

and slave concerned the very definition of slavery as an institution. Although the history of slavery
                                                                                         Daragh Grant | 16

in mainland America is most closely associated with the notion of “chattel slavery,” whereby slaves

were treated as the personal property of their owner to be freely alienated at their owner’s discretion,

the earliest definition of slavery in South Carolina treated slaves as “freehold property” or “real

estate” (Sirmans 1962, 465; Tomlins 2010, 438; Wood 2003, 240-1 n.59). As freehold, slaves were

attached to specific landed estates, and could not be separated from these estates.59 Much like serfs

or leet-men, freehold slaves were bound to serve their master, but were not treated as personal

belongings of the slave-owner (465). This legal definition of slaves as freehold was short-lived,

however. Despite two reenactments (1693 and 1695) of the disallowed slave statute of 1691 which

preserved the freehold definition of slavery for five years, a new definition of slavery was introduced

in 1696:

        All Negroes, Mollatoes, and Indians which at any time heretofore have been bought and
        Sold or now are and taken to be or hereafter Shall be Bought and Sold are hereby made and
        declared they and their Children Slaves to all Intents and purposes.60
In reducing the definition of slavery to the very fact of an individual being purchased or sold, and in

leaving the precise definition of this institution unspecified, the legal definition of the slave became a

matter of custom—slaves, that is, were “Slaves to all Intents and purposes”. According to the statute

of 1696, a slave was a person who was known to be a slave, with the specific understanding of this

term being derived from the existing practice of slavery.61 All evidence suggests that the customary

practice at this point was to treat slaves as chattels—personal possessions of the master to be

disposed of as he wished (466-8).62 The slave ordinance of 1696, therefore, replaced the previous

statutory definition of the slave as freehold tied to the land, by offering a statutory foundation to the

prevailing practice (contrary to that law) of treating slaves as chattels. Some historians have focused

on the shift in the definition of slaves from freeholds to chattels as a means of tracing the emergence

of the institution of chattel slavery in the history of South Carolina. I am more interested, however,
                                                                                        Daragh Grant | 17

in stressing how this transformation in the legal foundation of the institution of slavery took for

granted the role of the state in mediating the relationship between master and slave.63

        These legal definitions of the slave served two explicitly political purposes. Most obviously,

they served to make law, and therefore the state, the arbiter of the condition of slavery. Though

Eugene Sirmans is right to note that every slave ordinance between 1696 and 1740 identified custom

as the authority for determining the definition of the slave, he over-reaches in implying that 1740

was the first time since the disallowed act of 1691 that slavery in South Carolina rested on a legal

foundation, rather than a purely customary one (Sirmans 1962, 471).64 The hallmark of the

relationship between master and slave throughout this period was that it was defined in law and,

therefore, that it depended on the state, as the repository of authority, to recognize the rights of the

master over the slave and the limits of those rights. Whilst early colonial slavery statutes (after 1695)

did not explicitly enumerate the definition of slavery, they placed the authority of custom over this

question on a statutory foundation. The law, in short, identified custom as the authority for

determining the status of the slave as property, but it did so as a matter of positive rather than of

customary law.65 The state was inserted into the heart of the relationship between master and slave,

taking responsibility for limiting the freedom and entitlements of labor and for policing the activities

of laborers and masters alike.

        The definition of the slave as a matter of positive law also worked to subjugate the slave not

only to the slave-owner, but also to the state. This is particularly evident in the case of indigenous

Americans who were captured in slaving raids led by the settlers and their Indian allies. Unlike

members of Indian communities living beyond the colonial boundaries whose exclusion was partly

constitutive of the colonial legal order, enslaved Indians were wholly integrated into the legal order

of colonial South Carolina.66 Their very status as slaves depended, first and foremost, on the

recognition of their subjection to the law—a law which defined them as unfree property. Slaves,
                                                                                               Daragh Grant | 18

both African and Amerindian, joined women and indentured Europeans as subjects of colonial law

who were expected to live according to that law but were deprived of the civic entitlements of male


        The third and final aspect of colonial South Carolina’s definition of unfree labor follows

closely from the political subjection of the slave to the colonial legal order, focusing on the division

of classes of unfree labor in line with the binary of savagery and civilization that I discussed in an

earlier chapter. Though it makes little sense in early eighteenth century South Carolina to describe

the classification of the population as “racial”—that descriptor being more properly a product of the

development of scientific discourses of race in the nineteenth century—this period is nevertheless

replete with examples of the categorization of populations, of the enforcement of separation

between such population categories, and of day-to-day conceptual slippages, all of which were

critical to the later phenomenon of racialization.67 By treating invocations of epidermal difference as

one moment in the process of racialization, rather than as a reflection of the already existing fact of racial

(rather than epidermal) differentiation, I seek to focus on the ways in which ideas of race and racial

difference came to be taken-for-granted in colonial South Carolina. After all, the theoretical

foundation used to justify the institution of slavery was not one of racial difference per se, but rather

of the right of civilized Englishmen to enslave Africans and Native Americans deemed to exist in a

state of barbarism. The slave statute of 1712, for example, justified the existence of special

ordinances for slaves with the following preamble:68

        [T]he plantations and estates of this Province cannot be well and sufficiently managed and
        brought into use, without the labor and service of negroes and other slaves; and forasmuch
        as the said negroes and other slaves brought unto the people of this Province for that
        purpose, are of barbarous, wild, savage natures, and such as renders them wholly unqualified to be
        governed by the laws, customs, and practices of this Province ; but that it is absolutely necessary, that
        such other constitutions, laws and orders, should in this Province be made and enacted, for
        the good regulating and ordering of them, as may restrain the disorders, rapines and inhumanity, to
        which they are naturally prone and inclined; and may also tend to the safety and security of the
        people of this Province and their estates.69
                                                                                         Daragh Grant | 19

Much like Rev. Samuel Thomas’s claim that only through enslavement could Indians be brought to

civilization, this preamble justified the harsh measures of slavery legislation by the perceived need to

tame wildness and barbarism—to integrate those living beyond the colonial order through the

application of the civilizing power of the law. Harsh laws and punishments were to be used to

restrain those brought in from outside the law, suppressing their “natural” inclination for “disorders,

rapines, and inhumanity.” Much like the civilizing missions of John Archdale, John Lawson, Francis

Le Jau, and Thomas Nairne, the institution of slavery was envisaged as a means of civilizing Africans

and Indians from their wild condition beyond the law.70 However, contrary to these other versions

of the civilizing mission, the idea of civilization through enslavement had no telos. It did not

envisage a moment when the newly civilized slave was released from bondage.71 Instead, the slave

was to be civilized from a condition of barbarism, in return for which he or she was to be rendered

the perpetual subject of both the law and of their master.72

        In these three moves—the arrogation of the role of arbiter between master and slave, the

redefinition of the slave in law, and the justification of slavery in the terms of the binary between

savagery and civilization—the colonial state was asserted and established as the locus of authority

over South Carolinian labor relations. However, this assertion of authority did not, of itself, ensure

that the state was able to exercise effective legal power (potestas) over laborers and masters. Nor did it

guarantee the establishing of public order, any more than the claims of the Lords Proprietors or of

the Crown to authority over, say, distinguishing privateers (who possessed Letters of Marque) from

pirates (who did not) was able to enforce a prohibition on piracy along the distant shores of

America. Understanding the establishment of such effective power requires paying attention to the

specific methods of policing through which the state sought to order colonial society, and it is to this

topic that I now turn.
                                                                                      Daragh Grant | 20

The policing and division of unfree labor

The foundation of the institution of slavery in South Carolina on the binary between civilization and

savagery led to significant divergence in the treatment of classes of unfree labor. Although this

divergence was most frequently expressed in an idiom of epidermal difference, the statutes

governing unfree labor suggest that this epidermal shorthand was not simply articulated as a

justification for slavery, but rather was itself predicated on an understanding of the institution of

slavery as a means by which the savage could be civilized. A man was not a slave because he was a

“Negro” or an “Indian.” Rather, it was a consequence of the savage environment in which he

supposedly lived that the “Negro” or “Indian” was deemed eligible for life as a slave. The contingent

development of and relationship between specific institutional forms, such as that of slavery on the

one hand, and of specific state classifications (“Negro,” “Indian,” “Mulatto,” “Irish,” etc.) on the

other, ought not be lost in the identification of their eventual over-determination. Explaining the

difference between the treatment of classes of unfree labor in South Carolina depends both on

understanding the discursive and material practices of slavery and servitude, and also on tracing the

ways in which the categorization of these classes of labor produced and were in turn fashioned by

different regimes of policing and control. That is, it depends on tracing the manner in which the

relationship between the specific institutional forms of slavery and servitude and particular

epidermal categorizations employed by the state came to appear to be over-determined in practice.

       Three aspects of the South Carolinian policing of unfree labor, all of which are linked to the

tracing of a colonial boundary between savagery and civilization, are particularly helpful in shedding

light on this relationship. The first, and earliest form of categorization and division between classes

of unfree labor drew a distinction between white servants and “negroes … or other slave[s]”. In the

earliest legislation governing unfree labor—an act preventing people from trading with slaves or

servants without their masters’ permission—a distinction was drawn in the form of the punishment
                                                                                         Daragh Grant | 21

faced by unfree laborers found in breach of the act.73 Although both slaves and servants could be

corporeally punished, servants faced the additional punishment of having one year added to their

indenture in the event that they were found in breach of the statute.74 It is trivial to note that this

difference was based on the fact that indentured servants, unlike slaves, were usually bound for a

fixed term, and therefore they could have their term of servitude extended in this way.75 However,

this distinction itself rested on the different legal foundations of the institutions of indentured

servitude and slavery. Specifically, the institution of indentured servitude was predicated on the

notion that free Christians, already civilized and subject to a body of law, were able to freely contract

themselves into bondage. In contrast, the institution of slavery was based on the idea that slaves

were brought under a body of law through conquest, with no guarantee of rights and protections

under that law. Slavery, that is, was a state between life and death; a condition of existence the only

(legal) content of which was the holding in abeyance of the slave’s “just” execution. The indentured

servant, unlike the slave, was entitled to specific contractual protections both as the party to a legally

recognized contract and as a subject whose lack of freedom was contingent on the continued

recognition, by the state, of the legality of the contract of indenture.76 Indentured servants were, for

example, sui iuris, recognized as legally competent to challenge the terms of their servitude or bring

civil or criminal suit against their master or other persons in the colony. Moreover, as a matter of law

their evidence was not given any less weight than that of their master (Smith 1947, 235, 241-2).77

African and Indian slaves, on the other hand, were afforded no such protections and, as

presumptively uncivilized persons, were not considered morally competent to offer evidence in

court (Henry 1914, 8-15).78 This prohibition extended to the case where formally free African or

Indian persons were forced to defend themselves against a white person’s claim to have a right of

ownership over them. In such cases, the alleged slave was required to enlist the aid of a white man—

their “next friend”—to bring suit on his or her behalf (15).
                                                                                        Daragh Grant | 22

        That this legal disability attached equally to free and enslaved Africans reflects the pervasive

conceptual slippage that existed both in the slavery statutes and more generally between the term

“slave” and the term “negro.” To be a slave came to be associated with being black, just as having

black skin came to be associated with a justification of the institution of slavery and with notions of

the suitability of black people for populating that institution.79 This conceptual conflation was clearly

evident in the slavery statute of 1722, which required slave-owners to furnish any freed slaves with

the financial means to leave South Carolina. If the erstwhile slave failed to leave the province within

twelve months of receiving their freedom, they would “lose the benefit of such manumission, and

continue to be a slave”.80 In short, the concept of a free black person in South Carolina was deemed

a contradiction in terms—to be black was to be unfree, just as it was coming to be the case that to

be unfree was to be black.

        The arrangements for policing unfree labor in the colony reinforced these distinctions

between classes of unfree labor. The deepening of the cleavage between white indentured servants

and enslaved Africans was produced, in part, by the anxiety of white settlers about the risks of

revolt, especially in the context of the emergence of a black majority in South Carolina. Although

white freemen were aware that unfree whites were as likely to flee their servitude as were unfree

blacks, the colonial government considered indentured white labor to be a safer proposition (Jervey

1911, 165). In fact, the colonists passed a number of statutes seeking to encourage the importation

of white indentured servants in order to maintain a minimum ratio between whites and blacks, as

well as seeking to limit the number of black slaves imported to the colony through the levying of

significant duties on imported slaves.81 The notion that white servants would provide a buffer

against black insurrection was predicated on the idea of a natural affinity between white laborers and

their white masters—in essence, a denial of the relevance of class in the colonial context. However,

far from being achieved through a denial of class and an expression of white unity, the cleavage
                                                                                     Daragh Grant | 23

between unfree whites and blacks was effected through the instantiation of managerial hierarchies

within the laboring class that were marked primarily by epidermal differences (Henry 1914, 18-21).82

Specifically, in requiring plantation owners to maintain a minimum ratio of white people to black

slaves in their workforce, and in insisting that one of the white men employed on every plantation

be either the “master or manager” of that plantation, the colonial government created a division

between “black laborers” and “white overseers” that was marked both materially by the color of

their skin and discursively through the association of blackness with barbarism, incivility, and

treachery, and of whiteness with lawfulness, civilization, and power.83

       A second line of colonial cleavage resulted from South Carolina’s dependence on its Indian

neighbors for assistance in policing the labor force. The mechanism for policing colonial labor,

whether black, white, or Indian, depended heavily on the assistance of those Indian populations

living among the settlements and on the colonial frontier. In the early years of the colony the Lords

Proprietors encouraged the colonists to maintain good relations with their neighboring Indians, who

would “be of great use to [th]e Inhabitants of our province for the fetching in againe of such negroe

slaves as shall run away from their masters”.84 This policing of runaways by local Indians also

extended to indentured white servants. Indians were the primary agents for policing unfree labor

beyond the immediate confines of the colonial settlements, mirroring the role of slave patrols within

the colony (Gallay 2002, 94; Henry 1911, 28-36). Although Indians were not given the same freedom

to use force against runaways as white men were, they nevertheless were given the legal power to

“beat, maime or assault any [Runaway],” and to kill them if necessary, as long as they were

accompanied by a white person at the time.85 Whether white, black, or Indian, those fleeing the

colony were made, by law, subject to the power of neighboring Indians, who became agents of the

colonial regime.
                                                                                       Daragh Grant | 24

        This use of neighboring Indians to police the colony’s own inhabitants was accompanied by

reciprocal use of unfree labor to defend the colony against the threat of attack from neighboring

Indians and from French and Spanish forces. Although difficult to fathom given the frequent

concern expressed about the possibility of slave insurrections, the colonial government of South

Carolina armed slaves considered “trusty” to defend the colony against enemy incursions. During

Queen Anne’s War a number of laws were enacted to bring slaves into the colonial militia. Initially a

commission of freeholders, and later the militia captains, were required to identify suitable slaves and

to ensure that they were trained and readied for the colony’s defense.86 The willingness of slaves to

serve in the militia can be explained, in part, by the fact that they were promised their freedom in

return for killing or capturing an enemy in any actual invasion, as well as by the more obvious threat

that they themselves were at risk of falling victim to enemy invaders. However, the capacity for

solidarity between members of the colony—white and black—against invading Indians was also

likely influenced by the role played by Indians on the frontier in the policing of unfree labor in the


        The colonial government further sought to preserve a separation between local Indians and

slaves by making it illegal for African or Indian slaves (or “free negroes”) to be employed in the

Indian trade.88 The Commissioner for Indian Affairs, Col. George Chicken, explained the risks of

employing slaves in the Indian Trade, arguing: “The Slav[e]s that are now come up talk good English

as well as the Cherokee Language and I am Afraid too often tell falcities to the Indians which they

are very apt to believe, they being so much among the English”.89 Chicken’s anxiety not only

reinforces the fact that colonial officials were cognizant of the mutual interest of slaves and Indians

in opposing the colonial state, but also points to their concerns about tentativeness of the cleavage

between slaves and Indians. This posed a particularly grave threat as those slaves who were trained

in English techniques of defense and who had acquired technological skills among the English were
                                                                                      Daragh Grant | 25

in a position to share their skills with Indians, enabling them to better defend themselves against

English attacks (Gallay 2002, 348). During the Tuscarora War, for example, the South Carolinian

forces led by John Barnwell found themselves face to face with considerable and unexpected Indian

fortifications. Barnwell described the fort of the Tuscarora leader, K. Hancock, with some


        I imeadiately viewd the Fort with a prospective glass and found it strong as well by situation
        on the river’s bank as Workmanship, having a large Earthen Trench thrown up against the
        puncheons with 2 teer of port holes; the lower teer they could stop at pleasure with plugs, &
        large limbs of trees lay confusedly about it to make the approach intricate, and all about
        much with large reeds & canse to run into people’s legs. The Earthern work was so high that
        it signified nothing to burn the puncheons, & it had 4 round Bastions or Flankers. (Barnwell
        1898b, 44-5).
Barnwell was eventually forced to conclude a peace with the Tuscarora, finding his forces ill-

equipped to take the fort (52-4).90 On investigation, he discovered that a runaway slave called Harry,

who had been sold out of Carolina to Virginia, had “taught [the Tuscarora] to fortify thus” (45). The

depth of cooperation between the Tuscarora and runaway slaves from the surrounding colonies can

also be seen in the fact that the besieged Indians were harboring 24 runaway black slaves, whom

Barnwell demanded be handed over as part of any peace agreement (47). The Yamasee Indians

sought to achieve similar cooperation with African slaves during their war with the colony. Despite

the recruitment of some slaves into the colonial militia, the Yamasee assisted others in fleeing to the

Spanish colony of St. Augustine during the war.91 The possibility of cooperation between slaves and

Indians indicates both the relative weakness of cleavages separating the unfree laborers of Carolina

from the surrounding Indians, and the incompleteness of the colonial government’s control the

subaltern classes of the colony.

        Despite these instances of resistance against the colonial government that brought blacks

and Indians into coalition against the forces of settler colonialism, in the history of colonial South

Carolina these events were remarkable more for their rarity than for their frequency. The
                                                                                           Daragh Grant | 26

constellation of incentives generated by the colonial government in their categorization of

subjugated populations (whether indentured whites, enslaved blacks, subject Indians, free Indians, or

enemy Indians) and in their efforts to divide these populations, were largely successful. This was not,

however, simply a result of the colonial government’s manipulation of these subjugated populations.

It was also a consequence of decisions made by members of these subjugated populations. As agents

in the complex social world of colonial South Carolina, members of these groups sought to secure a

position of advantage with respect to other subjugated groups. Indian tribes, for example, sought to

exploit the need of the still weak English settlement for assistance at the expense of enslaved

Africans and Indians, and of indentured whites. African slaves sought their freedom by defending

the colony against its Indian neighbors that frequently contributed to their bondage, and white

indentured servants sought to secure a status for themselves in the colony by becoming the

enforcers of the day-to-day drudgery of chattel slavery. The controlling hand of a “sovereign”

colonial government did not direct these choices. Rather, the appearance of the colonial government

as sovereign was, in part, a product of decisions made by colonizer and colonized alike.

Policing labor and policing space: the enclosure of the colonial interior

The South Carolinian state that appeared during this period existed not only as a relationship

between people, but also as a claim over space. Throughout the period studied in this chapter, one

of the central tenets of the regulation of unfree labor was the restriction of free movement through

the colonies by slaves (Roper 2007, 401). In 1687, the colonial government instituted a system of

“ticketing,” whereby all slaves leaving their masters’ plantations were required to carry papers written

by their master or overseer as proof of permission for their movements.92 Although this system of

ticketing was initially only applied to slaves, in 1701 the colonial assembly passed an act that

extended it over the entire population of the colony—whether white or black, rich or poor, free or

unfree. This statute required any person leaving the colony to register their name with the Secretary
                                                                                        Daragh Grant | 27

of the province in return for which they would receive a “Tickett” permitting them to travel outside

the bounds of the colony. Any person failing to do so was “hereby deemed and decreed [a]

Runnaway”.93 Once again, the task of checking these tickets and of returning runaways fell, in part,

to Carolina’s Indian neighbors who were to receive as payment “all the armes and ammunition that

shall be taken in the possession of the person or persons so apprehended” along with any further

reward deemed appropriate by the Governor, up to a maximum of twenty shillings value per Indian.

Although this extension of the ticketing law to the entire population of the colony was most likely

designed to apply the same powers of policing slaves to the province’s indentured servants, this act

empowered local Indians to stop and demand papers from any freeman of the colony who left the

settlements. In effect, it entailed a spatial bounding of state power—a territorialization of the

colonial state.

        The issuing of tickets was not only an articulation of the state’s claim to legal power over its

subjects, it was also a claim to the boundedness of political space in the colonial world. For example,

it was only when individuals crossed notional spatial boundaries—“the northward of Sante River or

… the southward of Savana River”—that the people beyond those boundaries (i.e., Indians or those

white men among the Indians) could challenge them for their ticket and return them to the

judgment of the colony.94 After 1701, the citizen of the colony had, in this one (admittedly narrow

sense), the same relationship to the colonial state as the slave had to the master. Just like the slave

who moved beyond the limits of his master’s plantation, the privileged, free, white man who sought

to travel beyond the colony required the written permission of an agent of the state.

        This institution of the “ticket” depended not only on the actions of the colonial state and its

citizens, but especially on the recognition of surrounding colonial and indigenous communities of

the state’s right to police space and population. Referring, in 1724, to the arrival in South Carolina of

a French man from Moville, the colony’s agent in London, Francis Younge, wrote:
                                                                                          Daragh Grant | 28

        he brought no Pass from the [French] Governor or any other Person Authorized. [Governor]
        Nicholson kept him under Confinement until he cou’d be informed of the truth of his
        coming away it being usual for such as come thro that Country from any of the French or
        Spanish Settlements to have Passes, the want of which gave the Governor Just Reason to
        Suspect he came … on some … ill design.95
Despite the occasional hostility between the French, Spanish, and English colonies and the frequent

concern expressed by both the colonists and the imperial authorities about the threat posed to South

Carolina by their European neighbors, these governments nevertheless developed institutionalized

forms of cooperation and reciprocal recognition. South Carolina recognized the right of French

colonial states in America to control the movements of their populations, just as the French

recognized the need to issue their subjects with documentation when they crossed the notional

boundary into the territory of South Carolina. Although these colonies frequently differed over the

precise boundary lines that separated them, they nevertheless accepted the basic premise that the

European colonial state was authorized to enclose space in the New World, to claim it as its own,

and to police all those living within it.96

        My point here is not that the notion of a territorialized state emerged first in the colonial

world. On the contrary, the institution of the “passport” had already appeared in Europe prior to

the founding of Carolina.97 Instead, I mean to note that the process of state formation entailed not

only an extension of the claim to authority over people, but also over space. Although colonial states

continued to disagree on the precise limits of their authority, especially where it was claimed over

indigenous populations, these limits came to be understood in terms of the capacity of colonial state

institutions to effectively enforce their decisions across space. In this new understanding,

authority—that curious power to designate legitimacy—was hollowed-out (or revealed as hollow),

and came to be presented as a function of the very thing it sought to manage: power.98 The reach of

a state’s capacity for force (potentia), was taken as to mark the limit of its authority. Untethering itself

from any universal or transcendent claim to right, whether presented in the language if the ius gentium
                                                                                         Daragh Grant | 29

or of a Christian mission, the South Carolinian state made claims to legal power not primarily on the

basis of any process of authorization, but on the basis of its capacity to project force over space.
                                                                                               Daragh Grant | 30


1Although the proprietary colony of Carolina was not formally divided into the colonies of North and South
Carolina until 1711, the two territories were governed separately from the first settlement of the province.
When I refer to “South Carolina, I am referring to “that part of the Province of Carolina South and West of
Cape Feare.”
2 The first draft of the Fundamental Constitutions was made up of 81 articles and was dated 31 July 1669 (21 July
1669 [O.S.]). This draft was superseded by a second draft of 120 articles dated 11 March 1670 (1 March 1669
[O.S.]) Three more drafts were produced between 1670 and 1698: a draft of 120 articles on 22 January 1682
(12 January 1681 [O.S.]); a draft of 121 articles on 27 August 1682 (17 August 1682 [O.S.]); and a final draft
of 41 articles on 21 April 1698 [11 April 1698 [O.S.]). Although the Fundamental Constitutions were never
adopted by the freemen of the colony, the Proprietors never formally abandoned them, and they remained
nominally in force until the revolution against proprietary rule of 1719 (McDonald ed. 1899, 149-50). That
said, the Lords Proprietors did “[lay] aside” the Fundamental Constitutions in 1693, agreeing to rule the
Province “by the full power granted to us by our s[ai]d Letters patent” (“Letter of the Lords Proprietors of
Carolina,” 12 April 1693, SC Microfilm, reel 1, v.3, 81-3.
3 The Fundamental Constitutions were designed to be implemented in a society with a very specific social
structure, based around a hereditary nobility predominantly responsible for making laws and governing the
colony. The Lords Proprietors drafted a series of “instructions” and “temporary laws” by which the colony
was to be governed until such time as this social structure was in place (“Carolina Instructions,” 1 May 1671,
SP 322-3. See also: Armitage 2004, 607-10; Hsueh 2010, 55-7, 65-9; Locke [1669] 1997b; Sirmans 1966, 11,
38). The proprietors faced significant opposition in the colony from a powerful faction of Barbadian settlers,
the “Goose Creek Men,” who viewed the proprietors’ agents as lacking in colonial experience and unfit for
governance (Sirmans 1966, 27). This faction opposed the Lords Proprietors’ attempts to alter the terms of the
Fundamental Constitutions. The proprietors had hoped that a more favorable form of government would attract
more European settlers to the colony, diluting the hold of the Goose Creek Men over the colonial
government. This conflict ultimately led to the disavowal of the constitutions as the foundation of
government in favor of the Charter of 1665 (Little 1993, 92-3, 96-9; Sirmans 1966, 35-53. See also: “Address
of Seth Sothel [1690],” reproduced in Rivers 1836, 418-30). This tradition of factionalism persisted in the
colony into the eighteenth century, in the form of a conflict between (Anglican) Tories and (Dissenter) Whigs
(Gallay 2002, 224-6). The Anglican Goose Creek men went as far as excluding Dissenters from the Commons
House through the Church Act of 1704, which tethered the right to sit in the colonial assembly to the
receiving of communion according to the orders of the Church of England (226; Sirmans 1966, 87-8).
Though upheld by the proprietors, this Act was finally disallowed by Queen Anne after a furious lobbying
and pamphleting campaign on both sides of the Atlantic (JCHASC, March 1706, 13:6-9,14-18; Archdale
[1707] 1911, 303-4; Ash [1706] 1911; Defoe [1705] 1911. See also: Anon, “Pamphlet opposing an Act by the
Commons House of Assembly that would require all those sitting in the Commons House to have taken the
Sacrament of the Lord's Supper in the past 12 months according to the rites of the Church of England
[1704],” BL, Additional Manuscript 61647 ff. 89-92). Although the constitutions were never fully
implemented, they performed, as Vicki Hsueh has noted, a crucial propaganda function in enticing colonists
to Carolina with the promise of generous land grants and political liberties (Hsueh 2010, 63, 65-6).
4 The official record of colonial laws lists the first two statutes passed by the Parliament in 1682 as an “Act
for the observation of the Lord’s Day,” and an “Act for the suppression of Idle, Drunken, and Swearing
Persons, inhabiting within this province” (SC Statutes 2:v.). William Rivers identifies, between October and
December 1671, a series of statutes passed for the managing of disagreements between settlers, for the
regulation of servants, for licensing the selling of alcohol, and for ensuring the repayment of debts to the
Lords Proprietors (Rivers 1856, 107; JGCSC 1:10-17). A series of acts was also passed in June 1672 for the
more uniform building of Charles Town, the punishment of those attempting to leave the province without
permission, and the selling of arms to the Indians (110; JGCSC 1:33). The correspondence of the Lords
                                                                                                Daragh Grant | 31

Proprietors also includes frequent complaints about the activities of the settlers. For example, the proprietors
objected to the practice of enslavement of the Indians by settlers, demanding that the Governor and Grand
Council prevent such actions (“Temporary Laws to be added to the former,” December 1671, SP 367; “Lords
Proprietors to Governor Joseph West,” 5 May 1685, UKNA, CO5/288 p.60; “Instructions to Governor
Joseph Morton,” 10 May 1692, UKNA, CO5/286, 186). For a survey of the province’s support for pirates,
see: Hughson 1894a. The records of the Grand Council in the early years of the colony made frequent
reference to the desertions of servants (JGCSC 1:14, 22, 25, 33, 47-9, 54-6, 63-4; Sirmans 1966, 21-2; Wood
2003, 227).
5 “Le Jau to the Secretary,” 10 July 1711, Le Jau p.94. He went on to criticize those settlers who failed to
attend church and who “live worse than heathens” (“Le Jau to the Secretary,” 4 July 1714, Le Jau p.143).
6 Initially, as Christopher Tomlins has noted, the Lords Proprietors only envisaged an institution of servitude
in the colony. However, the influence of the potential Barbadian settlers, not least the proprietor John
Colleton and his son Peter Colleton, led to the introduction of the category of “slave.” Tomlins notes that
there was no mention of slaves or slavery in the original terms of settlement drafted by the Lords Proprietors
in 1663, which offered land grants to settlers for themselves and for each servant transported to the colony
(Tomlins 2010, 432; “Declaration to encourage settlement in Carolina and setting forth the terms of
settlement,” 25 August 1663, CRNC 1:43-6; “Declaration to encourage settlement in Carolina by inhabitants
of Barbados,” n.d. 1663, Ibid. 1:57-9). However, by 1665, in the aptly titled “Concessions and agreement”
offered to some of the Barbadian settlers, the proprietors included a grant of fifty acres for every slave over
fourteen years of age brought to Clarendon County, forty acres for those brought to Albemarle County, and
seventy-five acres for those brought to the proposed settlement at Cape Romania (“Concessions and
agreement between the Lords Proprietors of Carolina and William Yeamans et al.,” 7 January 1665, Ibid.
1:86-8; c.f. Tomlins 2010, 433).
7  Although the Lords Proprietors had made provisions for the treatment of slaves in the Fundamental
Constitutions, the greater attention paid to leet-men in these constitutions suggests that the proprietors did not
envisage an economy predominated by slave laborers. Seven of the first twenty-six articles of the Fundamental
Constitutions concern the status of leet-men in the colony (§ 16, 19, 22-6). In contrast, only two articles (§ 107,
110) refer to the status of slaves, one of which extends to them the rights of religious toleration and the other
of which refers to the power of their master over them (Locke [1669] 1997b, 165-6, 180). The power a Lord
had over his leet-men differed from the power of a master over his slaves. In the former case the Lord had
jurisdiction over his leet-men with the power to try them for civil or criminal cases in the Court-leet of his
manor, with the leet-man having no right of appeal from the Court-leet. However, this power was tempered
by reciprocal obligations of Lords to their leet-men, such as providing them with the use of ten acres of land
for their lifetime on the occasion of their marriage, and the prohibition on the alienation of leet-men or leet-
women from the land (§ 19, 22, 26; Hughson 1894b, 475-80). In contrast, slaves were held under the full
power and authority of the master, who bore no reciprocal obligations beyond the negative requirement that
he not impede their religious worship (§ 107, 110). There were, however, also similarities between these two
categories. For example, although the constitutions make no mention of the heritability of the condition of
slavery, which was the practice in the colony, the child of a leet-man, like that of a slave, was automatically of
the same class as its parent (166 §23; Gallay 2002, 46). Leet-men were also alienable, though only in the
instance in which the signory, barony, or manor to which the leet-man or leet-woman belonged was sold (165
§19). Similarly, the original legal status of the slave in Carolina was that of “real estate” or freehold property,
whereby the slave was tied to the land and only alienable along with an estate. It was only with the later
innovation of chattel slavery that slaves became freely alienable (Sirmans 1962, 465).
8It is estimated that West Indian settlers made up over half of the original European settlers at Charles Town
(Greene 1987, 197-9).
9These Europeans were never held as slaves. That is to say, their bondage was usually temporary and never
heritable. Paradoxically, the temporary nature of a master’s investment in European indentured labor often
                                                                                             Daragh Grant | 32

meant that these servants were treated more harshly than were the more valuable slaves (Williams [1944]
1994, 16).
10 On the preference for African or West Indian slaves over indentured Europeans, see: “Edmund White to
Joseph Morton,” 29 February 1688, in Dunlop (ed.) 1929, 2-3. Peter Wood has argued that this preference
was linked to the particular expertise that African slaves were able to bring to the cultivation of rice, which
became the staple crop of choice in South Carolina in the early years of the eighteenth century (Wood 2003,
224, 233-6). Wood argues that African laborers, far from being “unskilled,” brought the skill of rice
production with them to the Americas (234). He notes that in contrast to Europeans and Native Americans,
“Negroes from the West Coast of Africa were widely familiar with rice planting,” and that this was well
known to European slavers who were provisioned with rice by West Africans. For example, “[t]he
northernmost English factory on the coast [of Africa], James Fort in the Gambia River, was in a region where
rice was grown in paddies along the riverbanks. In the Congo-Angola region, which was the southernmost
area of call for English slavers, a white explorer once noted rice to be so plentiful that it brought almost no
price” (235). Wood offers further evidence for the claim that South Carolinian rice-production was based on
knowledge acquired from African slaves, arguing: “In summer, when Carolina blacks moved through the rice
fields in a row, hoeing in unison to work songs, the pattern of cultivation was not one imposed by European
owners but rather one retained from West African forebears. And in October when the threshed grain was
‘fanned’ in the wind, the wide, flat winnowing baskets were made by black hands after an African design”
(236). It should also be noted, however, that the growth in the size of the African slave population in South
Carolina, and the relative decline in the number of Native American slaves through this period was also
linked to changing relations between the English and local Indians following the Yamasee War in the second
decade of the eighteenth century (Gallay 2002, 338-9). Difficulties attracting European servants also
contributed to the eventual dependence on African labor. Tomlins has noted that “both wartime
interruptions and general stagnation of supply increasingly cut into European servant migration in the later
seventeenth century,” influencing the turn to African slave labor (Tomlins 2010, 431). Although Charles
Town had early been a destination of choice for indentured servants, by 1708 there were only 120 white
servants in the colony (Smith 1947, 57, 331-2; “A Report of the Governor and Council,” 17 September 1708,
in Merrens 1977, 32).
11The breakdown of the census of 1708 was as follows: The total number of freemen, free women and white
free children was 3,960, only 1,360 of whom were men; This compared to 4,100 black slaves, 1,800 of whom
were men; 1,400 Native American slaves, 600 of whom were men; and only 120 white servants, half of whom
were men (“A Report of the Governor and Council,” 17 September 1708, in Merrens 1977, 32). This first
census also points to recent demographic shifts, as it compares the population of 1708 with that of 1703,
suggesting that demographic record keeping had been ongoing in the colony for some time. In 1703, the
colony had 3,600 free whites, of whom 1,460 were men. The colony had 3,000 African slaves, of whom half
were men, and only 350 Indian slaves, only 100 of whom were men. There were also 200 indentured white
servants in the colony in 1703 (32, 37 fn.1). Thomas Nairne, in a promotional pamphlet authored in 1710,
offered a very different picture of the demographics of South Carolina. Only providing proportions of the
overall population of the colony, in which Nairne included a figure for “Indian subjects,” Nairne’s figures
suggest that the “Negro slave” population was already almost twice that of the colony’s white inhabitants,
22% of the colony as opposed to only 12% for whites with the remaining 66% being account for by Indians
(Nairne [1710] 1989, 59).
12 By 1708 there was already a long history of differentiation between “whites” and non-whites in colonial
legislation. Contrary to Alan Gallay’s claim that the census of 1708 was “one of the first documents in the
colony to use the term [‘white’],” statutes as early as 1691 frequently employ the term “white” when drawing
distinctions between the punishments and privileges available to “white servants” and “negro slaves” (“An
Act for the better ordering of Slaves,” [1691, incorrectly dated 1690], SC Statutes 7:343-7; “An Act for
Destroying Beasts of Prey, and for Appoynting Magistrates for the Hearing and Determining of all Causes
and Controversies between White Men and Indian, and Indian and Indian [1696],” Ibid. 2:108-10; c.f. Gallay
                                                                                                Daragh Grant | 33

2002, 200). Moreover, although the term “white” is not used in the text itself, an Act of 1687 prohibiting
trading with slaves and servants, which is itself based on an earlier act of 1683, sets out different punishments
for (white) indentured servants and “negro or other slaves,” suggesting the existing practice of distinguishing
white and non-white laborers (SC Statutes 2:22-3; Little 1993, 94). Similarly, the Fundamental Constitutions draw
a distinction between the treatment of “Negro slaves” and (white) “leet-men” (Locke [1669] 1997b, 166 § 22,
180 § 110). My point, nevertheless, is that whilst the idiom of epidermal difference had a long history in the
colony by 1708, it had yet to become the master-cleavage of colonial life. On the erroneous dating of the
statute of 1691, see: Little 1993, 97 fn.33, 99 fn.43; Roper 2007 395-7 fn.1.
13 I differ from Tomlins, therefore, who argues that slavery in Carolina was racialized from the start. Citing
the provision of the Fundamental Constitutions whereby masters were guaranteed control over Christian
“Negro” slaves, Tomlins argues that the “prudential concerns of early modernity that Christians not hold
Christians in slavery held no sway in the face of racial differentiation” (Tomlins 2010, 434-5). As I go on to
outline, to conflate epidermal differentiation (of which this is surely a case) with racial differentiation, is to
ignore the processes through which ideas of race and racial difference came to emerge and to be taken-for-
granted in the first place. That is, it is to ignore the processes by which the color of one’s skin came to be
seen as a marker of an essential difference that could, in turn, be used to justify differential treatment. Put
another way, the Christian Negro slave was not yet a slave because he was a “Negro,” but as I go on to show
in more detail, because he was brought into the colony from beyond the law.
14 The focus, in 1720, on reporting the number of Indians neighboring the colony is understandable following
the outbreak of the Yamasee War in 1715. It was in that year that John Barnwell had prepared the census of
Indian communities, making corrections to earlier data collected by those living among the Indians, in
particular by Price Hughes and two Indian Commissioners, John Wright and Thomas Nairne (Gallay 2002,
203). Gov. Nathanial Johnson’s census of 1708 had included a report on the number of Indian men of
fighting age in most Indian communities on the colonial frontier excluding the “Settlement Indians” who
were neither recorded in the figures for neighboring Indians, nor in the population of the settlement itself,
though they clearly lived within the English settlement (“A Report of the Governor and Council,” 17
September 1708, in Merrens 1977, 34-6). However, Barnwell’s census of 1715, which was used as the basis of
a report by Gov. Robert Johnson to the Board of Trade in 1720, contained significantly more detail, including
information on the total number of men, women, boys, and girls living in each Indian community (“A
Governor Answers a Questionnaire [from the Board of Trade],” 12 January 1720, in Merrens 1977, 58-61).
Both of these reports on the Indian population were clearly motivated by a concern with the military threat
these communities posed or with the military assistance they could offer to South Carolina. This concern was,
in turn, related to British imperial anxieties about the continued Spanish presence in Florida and the growing
French influence among the Indians on the Southern frontier (Ibid., 59, 62-4; “A Report of the Governor
and Council,” 17 September 1708, in Merrens 1977, 36).
15“Commons House of South Carolina to the Board of Trade,” 19 January 1720, SC Microfilm, reel 2, v.7;
“John Barnwell and Joseph Boone to the Board of Trade—Queries relating to Carolina,” August 1720, SC
Microfilm, reel 2, v.8, query nos.11-13. There is some confusion over the number of white persons in the
colony in 1720. In contrast to the figure of 9,000 stated in the reports of Barnwell and Boone and of the
Commons House, Governor Robert Johnson’s report of 1720 suggests a figure for the white inhabitants of
Carolina of only 6,400, of whom 1,600 are listed as fighting men. This (considerably) lower figure is offered
some support by a report of 1721 that lists the number of tax payers in the colony as 1,305, and the slave
population at 11,828 (“A Governor Answers a Questionnaire [from the Board of Trade],” 12 January 1720, in
Merrens 1977, 57; “Report of Governor Moore,” 21 March 1721, SC Microfilm, reel 2, v.9, p.23). If these
lower figures for the white population are correct, then the ratio of white inhabitants to slaves may have
reached one to two as early as 1720.
16“An Act for the Better Governing and Regulating White Servants,” 1717, SC Statutes 3:14-20. Despite the
fact that legislation was passed to ‘better govern and regulate’ this population of white servants, no evidence
remains to indicate that the government collected statistics on the number of unfree white laborers in the
                                                                                              Daragh Grant | 34

province after Gov. Nathaniel Johnson’s census of 1708. As Abbot Smith notes, the small number of white
indentured servants in 1708 makes clear “why the laws of 1712 and 1716 to encourage the importation of
white servants became necessary.” He also notes that the “number of references to individual shipments of
servants to Carolina is large enough to indicate that a considerable number went there, despite the scantiness
of statistics” (Smith 1947, 331. See also: Jervey 1911, 167). Thomas Nairne also makes reference to the small
number of white servants in the colony (Nairne [1710] 1989, 59).
17  Most of the provisions in this act were aimed at standardizing the terms of contracts of indenture,
impeding runaways, and minimizing conflict between masters and servants. Two noteworthy provisions
concerned the relations between white servants and slaves or “free negroes.” The first decreed that any white
servant found fleeing the colony in the company of a slave “shall upon conviction thereof … be deemed a
felon, and the punishment of a felon [i.e., usually a death sentence] be inflicted on him accordingly” (“An Act
for the Better Governing and Regulating White Servants,” 1717, SC Statutes 3:17). The second provision
applied to the relations between white and black persons in the colony, and decreed that any white woman
who became pregnant by a black man (whether free or enslaved) or any white man who made a black woman
(again whether free or enslaved) pregnant, would be bound to servitude for a period of seven years if free,
and would have a term of seven years added to their indenture if already a servant. Any “free negro” who
made a white woman pregnant, or who was made pregnant by a white man would also be bound to servitude
for seven years. The statute also required that “the issues or children of such unnatural and inordinate
copulation shall be servants until they arrive at the age of the male twenty one years, and the females eighteen
years” (20).
18 It is clear that the colonial government was aware of the risks of alliance between white and black labor. As
Thomas Little notes, the legislation to prohibit trading with slaves and servants of 1687 was passed soon after
news reached South Carolina of a conspiracy in Barbados between Irish servants and African slaves (Little
1993, 95). The relative lack of concern among South Carolinians about threats posed by white servants to the
prevailing social order may have been linked to their earlier prohibition on supposedly seditious whites—such
as “criminals” and “native Irish”—in an act of 1716 (Jervey 1911, 166; “An Act to encourage the importation
of white Servants into this Province,” 1716, SC Statutes 2:642). For a discussion of the influence of news of
slave revolts in Barbados and Jamaica on the framing of slave legislation in colonial South Carolina, see:
Greene 1987, 201, 207; Little 1993, 90, 95.
19There is some evidence for the conflation of the figures for Indian and African slaves into a single category
in the fact that the estimated number of slaves of 11,828 in Gov. Moore’s report of 1721 is strikingly similar
to the estimated number of “blacks” of 12,000 offered by Barnwell and Boone a year earlier (“John Barnwell
and Joseph Boone to the Board of Trade—Queries relating to Carolina,” August 1720, SC Microfilm, reel 2,
v.8, query nos.11-13; “Report of Governor Moore,” 21 March 1721, Ibid., reel 2, v.9, p.23). On the decline of
the Indian slave trade following the Yamasee War see: Gallay 2002, 338, 422 n.102.
20“George Burrington to the Board of Trade,” 28 July 1729, SC Microfilm, reel 3, v.13, pp.373-4. This report
was less comprehensive than the censuses of 1708-1720, and was oriented toward the collection of taxes.
21 Expressions of humanitarian or Christian concern about the treatment of slaves were frequent in the
writings of the S.P.G. missionaries in South Carolina (“Samuel Thomas to Rev. Dr. Woodward,” 29 January
1702, in Thomas 1903a, 226; “Mr. Samuel Thomas’s Remonstrance in justification of himself,” c. May-June
1706, in Thomas 1904, 43-4, 47; “Le Jau to the Secretary,” 22 March 1709, Le Jau p.54-5; 20 February 1712,
Ibid. p.108; 19 August 1712, Ibid. p.121; 23 February 1713, Ibid. p.130; “The Instructions of the Clergy of
South Carolina given to Mr. Johnston on his coming away for England Enlarged and Explained by the said
Mr Johnston,” March 1712, Johnston p.123-4. For expressions of concern about slave insurrections, see:
Sirmans 1962, 469; “Le Jau to the Secretary,” 30 August 1712, Le Jau p.123; 22 January 1714 pp.136-7;
“Board of Trade to the Privy Council.” 30 August 1720, SC Microfilm, reel 2, v.8; “Memorial from South
Carolina General Assembly to the King,” 9 April 1734, Ibid., reel 4, v.16, pp.398-9.
                                                                                                Daragh Grant | 35

22Tomlins rightly notes that it wasn’t until the South Carolinian slave statute of 1740 that slave-owners were
“restrained from exercising too great rigour and cruelty over [their slaves]” (Tomlins 2010, 448-9; “Act for
the Better Ordering and Governing Negroes and other Slaves in this Province,” 1740, SC Statutes 7:397).
However, although earlier statutes had offered little protection to slaves who were deemed to be in
dereliction of their duty and subject to the master’s punishment, these statutes had, as Tomlins also notes,
included injunctions against wanton murder of slaves (438).
23 John Locke’s role in the authorship of the Fundamental Constitutions is a somewhat vexed question. In his
introduction to the constitutions, Mark Goldie has noted that it is unlikely that Locke was the sole author of
the constitutions, though he clearly had a significant hand in their development (Locke 1997a, 160-1).
24 David Armitage argues that Locke made this edit in his own hand (Armitage 2004, 609). James Farr has
contested this claim, arguing that the ampersand in the hand-written revision is inconsistent with other
samples of Locke’s handwriting (Farr 2008, 518 n.26). Farr does concede, however, that Locke “was
presumably present when [the revision] was [made], raising no objection to it, as he did to the prospects of an
established church” (499). Even if not in Locke’s hand, then, we can assume that he saw no problem with this
augmented power of the master over his slaves.
25 Locke [1669] 1997b, 180 § 110. Locke likely made this change in response to his correspondence with the
proprietor John Colleton and his son Peter Colleton who had considerable experience of slave ownership
from their plantations in Barbados (Armitage 2004, 609; Sirmans 1962, 463-4). Tomlins notes that the slavery
provisions of the Fundamental Constitutions gave Carolina slaveholders “the same absolute power over their
slaves that Barbados had established in its 1661 ‘Better Ordering’ statute” (Tomlins 2010, 433).
26Tomlins has noted that there was little new in Locke’s theory of slavery presented in the Two Treatises: “the
account of slavery as a human institution founded on capture in just wars [was] long since developed in the
historical-empirical accounts of the sixteenth- and early seventeenth-century law of nations writers … –
notably Vitoria, Gentili, and Grotius” (Tomlins 2010, 434-5 n.104).
27Peter Laslett notes that Locke appears to contradict himself here, as he has earlier in the passage made clear
that “a Man, not having the Power of his own Life, cannot, by Compact, or his own Consent, enslave himself to
any one, not put himself under the Absolute, Arbitrary Power of another, to take away his Life, when he
pleases. No body can give more Power than he has himself; and he that cannot take away his own Life,
cannot give another power over it” (Locke [1690] 1988, II § 23), and yet here he appears to suggest a man
gave freely give up his life (Locke [1690] 1988, p.284 fn. to § 23).
28   Locke [1690] 1988, II § 23-4
29   Locke [1690] 1988, II § 85
30   Locke [1690] 1988, II § 176
31   Locke [1690] 1988, II § 180
32 There is one notable distinction, however, between the right of the master over his slaves in the Fundamental
Constitutions when compared with the Second Treatise—namely, in the latter text, the power of the master over
the slave is sometimes described not only as absolute, but as arbitrary. Locke discusses the distinction
between arbitrary and absolute power elsewhere in the Second Treatise, noting that where absolute power is
limited by a pre-defined purpose for which that power may be used, arbitrary power has no such limitations
(Locke [1690] 1988, II § 139). In claiming, as I do here, that the absolute power granted to the master over
the slave renders this a purely private relationship, I am not denying that the colonial state reserves the right
to police the actions of the slave, just as it maintains a right to police the actions of the master. Rather, I am
claiming that the colonial state makes no claim to police the relationship between master and slave. Within a
constituted legal order, that is, the master cannot have arbitrary power and authority over his slaves, because
he is not entitled, for example, to command them to violate the laws of the state or the laws of nature. His
power and authority are bounded, that is, by the proper relation of master and slave, and their required
                                                                                                 Daragh Grant | 36

submission to the constituted legal order within which they live. For a fuller discussion of Locke’s theory of
slavery, see: Farr 2008, 496-500.
33Tuck does acknowledge, however, that a distinction between authority (“a certaine reverende impression in
the mynde of Subjects … touchings the Princes vertue”) and power (“without which no Prince can ether
defende his owne; or take from others”) was drawn by some Englishmen working in the tradition of
“Italianate prudential maxims” in the sixteenth century, but notes that this was rare and was a largely
manuscript-based circulation of ideas (Tuck 1974, 44).
34Antonio Negri has noted that the terminological confusion between two sorts of power that is evident
here, and that forms the subject of Tuck’s investigation, is marked in many languages—“potestas and potentia in
Latin, pouvoir and puissance in French, potere and potenze in Italian, Macht and Vermögen in German (which [he
marks as] power and strength…).” Negri argues, following Marx, that in English this distinction is best rendered
as that between “political power” (potestas), which is the constituted power of the law, and “political
movement” (potentia), which is the constituent power of radical democracy (Negri 1999, 32-3).
35 Giorgio Agamben, following Carl Schmitt and Hannah Arendt, offers a more detailed discussion of this
relationship (Agamben 2005, Arendt [1961] 1993, Schmitt 2008a). Turning to the historic power of the
Roman senate, auctoritas, he identifies this as a force that “suspends potestas where it took place and reactivates
it where it was no longer in force.” This “power that grants legitimacy” is the foundation of the law, but is
never “formally in force as law” (Agamben 2005, 78-9).
36 In contrast to William Popple’s original translation of 1689 (as presented by James Tully), J. W. Gough’s
translation of the Epistola de Tolerantia presents this phrase as: “the magistrate is armed with force [vi], namely,
with all the strength [robere] of his subjects” (Locke [1689] 1968, 66-7). Elisha Coles’s dictionary, produced
some time before his death around 1680, defined “vi” from “vis” as: “Strength, Power, Force, Violence,
Constraint, … Virtue” (Coles 1707, 872). This same dictionary defined “robere” from “Roboreus” meaning “of
an Oak [tree],” with the specific connotation being “strength” or “fortification” (915). Both of these
connotations are very close to the sense of force or might that I have been referring to as “potentia”
throughout. Locke himself appears not to have used the term “potentia” in his Epistola de Tolerantia. Cole’s
dictionary defines the term “potentia” as “Power, Authority, Credit” (871).
 “civis potestatis” (Locke [1689] 1968, 66). Coles’s dictionary defined “potestas, atis” as “Power, Authority,

Opportunity & also a Magistrate” (Coles 1707, 872).
38“auctoritatem”—which is a form of “authoritas” [sic.] (Locke [1689] 1968, 66, 84). Coles’s dictionary defined
“Authoritas” as: “Authority, Preeminence, the opinion or sentence of a Judge, the first Author of a Report, an
Authentick proof or Testimony,” which (at least in the first three meanings, and especially the third) coveys
the notion of that declaration which makes an act legal or what I term auctoritas (Coles 1707, 480).
39   Locke [1689] 1983, 26
40Here Tully, following Popple, renders as “Authority” the latin term “privinciam” which is a form of the word
“provincia” (Locke [1689] 1968, 126, 128). In the seventeenth century, this term was understood as “Province,
a Countrey governed by a Deputy or Lieutenant.” However, “provinciam” was understood less in terms of its
geographic connotation, than as a “commission” such as in the examples: Obtinere provinciam (“to get to be
chosen into a deputyship”); Deponere provinciam (“to lay down ones Commission”); or Dare alicui provinciam (“to
put one in commission”). This is in keeping with the concept of authority (auctoriats) as the power to confer
legal force on the actions of an individual (Coles 1707, 889).
41   Locke [1689] 1983, 48
42   Locke [1690] 1988, II § 3
43   Locke [1690] 1988, II § 202
44   Locke [1690] 1988, II § 135
                                                                                                 Daragh Grant | 37

45   For the concept of sui iuris, see: Agamben 2005, 76.
46 Of course, one could argue that the revision to the Fundamental Constitutions of 1669 was simply a by-
product of the still emergent distinction in English political philosophy between power and authority, as
discussed by Tuck. By that logic the initial draft would have granted the slave-owner “absolute [potestas]” over
his slaves, reserving the authority to determine the limits of that authorized power elsewhere. The addition of
“and power,” therefore, could be understood in one of two ways. It would have served either to give the
same limit power of life and death (“absolute [potentia] and [potestas]”) to master over his slaves, effectively
obliterating a role for external authority as auctoritas to pass judgment on the relationship, or it would have
marked a simple pleonasm in an environment of conceptual confusion whereby both the terms “power” and
“authority” were understood to connote legal power (potestas). It seems reasonable to rule out this latter
possibility on the grounds that as early as 1667, in his An Essay on Toleration, Locke already appears to employ
a well-developed distinction between “authority,” as that which renders coercive force legitimate, and
“power,” as that concept representing authorized force:
           though there were no other person besides myself in the world, [purely speculative opinions] cannot
           by any means either disturb the state or inconvenience my neighbour, and so come not within the
           magistrate’s cognizance. Besides, no man can give another man power … over that over which he
           has no power himself. … For the magistrate is but umpire between man and man; he ca right me
           against my neighbour, but cannot defend me against my God; whatever evil I suffer by obeying him
           in other things, he can make me amends in this world, but if he force me to a wrong religion, he can
           make me no reparation in the other world. To which let me add that, even in things of this world
           over which the magistrate hath an authority, he never does, and it would be injustice if he should, any
           further than it concerns the good of the public, enjoin men the care of their private civil
           concernments, or force them to a prosecution of their own private interests, but only protects them
           from being invaded and injured in them by others” (Locke [1667] 1997c, 137-8).
One would do well to remember, as Goldie does, that this essay—a shift toward Locke’s later position in his
A Letter Concerning Toleration—was the first fruit of his engagement with Anthony Ashley-Cooper (later the
Earl of Shaftesbury), the only man likely to have had a greater influence over the drafting of the Fundamental
Constitutions than Locke himself (Locke 1997a, 134).
47   Locke [1690] 1988, II § 172
48 Locke himself implies as much in his discussion of the limited power of the paterfamilias over the members
of his family, in contrast to his unlimited power over his slaves (Locke [1690] 1988, II § 86). For Locke, the
notion of the “legislative power of life and death” extended only to a man’s slaves, and not to his wife and
descendants as in the original Roman legal notion of paterfamilias (II § 86; Armitage 2004, 619). The power of
a parent over its children “arises from that Duty which is incumbent on them, to take care of their Off-
spring, during the imperfect state of Childhood. To inform the Mind, and govern the Actions of their yet
ignorant Nonage, till Reason shall take its place, and ease them of that Trouble” (II § 58). The master owed
no such duties to the slave, and consequently faced no limitations on his power. It should be noted, however,
that even in the earlier Roman legal sense, this power of life and death over one’s wife and children (vitae
necisque potestas) was a rare legal notion. As Richard Saller has noted, “‘the power of life and death’ … is a legal
expression of the outside limit encompassing the whole patria potestas, rather than some sociological reality”
(Saller 1999, 185). Moreover, in the realm of slave ownership, Saller makes clear that far from the usage
adopted by Locke and the Carolinians, the original notion of paterfamilias connoted “kindness toward slaves
rather than severity toward children” (192). Moreover, although the killing of a slave during the course of a
punishment (whipping, for example) was not deemed criminal homicide, even Roman law recognized the
distinction between this and the intentional murder of a slave through the application of necessarily lethal force
(Saller 1996, 117). Understood as a “pure concept,” therefore, vitae necisque potestas was “a legal formula
expressing the most extreme, limiting case, but one that could be successfully used only in concert with the
                                                                                               Daragh Grant | 38

state and only in extremely rare circumstances”—usually where the patria itself was put at risk by a member of
the familia (117).
49   Locke [1690] 1988, II § 53
50   Locke [1690] 1988, II § 71
51   Locke [1669] 1997b, 179-80 § 107
52“Act for inhibiting of trading with slaves or servants,” 1687, SC Statutes 2:22-3. This act likely resembled an
act passed in 1683 for the same purpose of which no written record remains (Little 1993, 94; SC Statutes 2:v).
53 The first mention of this special court is in “An Act for the better ordering of Slaves,” [1691], SC Statutes
7:345-6. The Lords Proprietors disallowed this act later the same year, along with all other legislation passed
by the government of the rogue Proprietor and Governor Seth Sothel (Wood 2003, 232). Despite this
disallowance, the act of 1691 was renewed on two occasions in 1693 and 1695 (“An Act for the Better
Ordering of Slaves,” 1693, SC Statutes 2:78; “An Act to Revive the several Acts within mentioned,” 1695,
Ibid. 2:96; Little 1993, 99 fn.43; Roper 2007, 395-7 fn.1). This act was finally replaced by a new act in 1696.
This later act retained the procedure for trying slaves (Sirmans 1962, 466 fn.13). For a text similar to that of
the act of 1696, see: “An Act for the better ordering of Slaves,” 1701, in Roper 2007, 408-18. These acts were
all heavily influenced by the Barbados Slave statute of 1661 (Tomlins 2010, 437-42; c.f. Little 1993, 97;
Sirmans 1962, 466).
54 “An Act for the better ordering and governing of Negroes and Slaves,” 1712, SC Statutes 7:358. The
punishments for particular crimes were enumerated in statutes, and slave-owners were required, on pain of
fines, to carry out the enumerated punishment. For example, runaways faced an escalating scale of
punishments depending on the number of times they had run away before. This scale proceeded from public
whipping, to branding, the amputation of an ear, “gelding,” and finally death. Owners were to be
compensated from the public treasury in the event that one of their slaves died, which was presumably not
uncommon given the fact that the statute made particular reference to this possibility when discussing the
requirement to “gelt” runaway male slaves (359-60). Although some authors mention that the harshest
elements of these statutory punishments were often not enforced, the journal of Rev. Francis Le Jau makes
frequent mention of harsh punishment between 1706 and 1717 (Klingberg 1941, 109 fn.22; Little 1993, 86;
Sirmans 1962, 469; “Le Jau to the Secretary,” 22 March 1709, Le Jau p.55; 20 Feb 1712 p.108; 30 August 1712
p.112; 23 February 1713 p.130; “Le Jau to Henry Compton, Bishop of London,” 27 May 1712, Le Jau p.116).
55“An Act for the better ordering of Slaves,” 1701, in Roper 2007, 408; “An Act for the better ordering and
governing of Negroes and Slaves,” 1712, SC Statutes 7:352-3.
56“An Act for the better ordering of Slaves,” 1701, in Roper 2007, 415. See also: “An Act for the better
ordering and governing of Negroes and Slaves,” 1712, SC Statutes 7:354.
57“An act for the better ordering of Slaves,” [1691], SC Statutes 7:346-7. By 1712, the penalty for killing one’s
own slave had been reduced to a fine of 50 pounds, with a jail term only applying to the case where a white
servant was responsible for killing a slave—“An Act for the better ordering and governing of Negroes and
Slaves,” 1712, Ibid. 7:363. In 1730 the Board of Trade instructed Governor Robert Johnson to pass a law to
punish any master or overseer for “any Inhuman Severity … used towards their Christian Servantes & their
Slaves.” The penalty of death was to be imposed for any “wilful killing of Indians & Negroes” with
appropriate pentalties also called for in the event of servants or slaves being maimed (“Board of Trade to the
King: Re. Gov Johnson’s Instructions,” 10 June 1730, SC Microfilm, reel 4, v.14, p.186 § 68). It appears,
however, that this provision was never enacted. Instead, the penalty for such acts of wilful murder was merely
increased to £700 (“An Act for the better Ordering and Governing Negroes and other Slaves in this
Province,” 1740, SC Statutes 7: 410-11).
58As Tomlins notes, it wasn’t until the revised slave statute of 1740 that the colonial government made
explicit the protection of slaves from their masters’ “exercising too great rigour and cruelty over them”
                                                                                                   Daragh Grant | 39

(Tomlins 2010, 448. See also: “An Act for the better Ordering and Governing Negroes and other Slaves in
this Province,” 1740, SC Statutes 7: 397).
59An exception was made for the “payment of debts” where slaves “shall be deemed and taken as all other
goods and chattels, and when other goods and chattels are not sufficient to satisfy the said debts, then so
many slaves as are necessary, as well proportionately out of the slaves assigned for dowry, as those that
belong to the heirs and executors, shall be sold for payment of debt; and all negroes and slaves shall be
accounted as freehold in all other cases whatsoever, and descend accordingly” (“An act for the better
ordering of Slaves,” [1691], SC Statutes 7:343-4).
60Quoted in Sirmans 1962, 466. For a later reiterations of this definition, see: “An Act for the better ordering
of Slaves,” 1701, in Roper 2007, 408; “An Act for the better ordering and governing of Negroes and Slaves,”
1712, SC Statutes 7:352.
61 Tomlins traces the language of “to all intents and purposes” to sixteenth-century legal practice and
discourse, with its first appearance in Henry VIII’s An Acte for the Establishment of the Kynges Succession of 1534.
Tomlins notes that although “the phrase has come to signify ‘as far as practicable,’ … its original signification
in statutory construction is far more universal, meaning coverage of any and every eventuality, a signification
reinforced by the frequent addition of an accompanying phrase, immediately following (precise wording
varies) ‘any licence dispensacion or any other acte or actes goinge afore or insuying the same or to the
contrary thereof in any wyse not withstondying’ [language taken from the Acte for the Establishment of the Kynges
Succession of 1534]” (Tomlins 2010, 439-40 n.122).
62 For example, the pamphleteer John Norris described the status of slaves in South Carolina, thus: “When
these people are thus bought, their Masters, or Owners, have then as good a Right and Title to them, during
their Lives, as a Man has here to a Horse or Ox, after he has bought them. … and they are call’d Slaves, not
because their Labour is more Slavish or Servile than Servants Labour is here, nor often times so hard to
perform as the Labour requir’d from Servants in this Country, but ‘tis because they are never Free-Men, or
Women, during their Life, nor their Children after them” (Norris [1712] 1989, 87). This view of the
customary institution of slavery was confirmed by the colony’s acting Governor, Arthur Middleton, in 1725,
who declared that slaves: “have been and are always deemed as goods and Chattels of their Masters” (Quoted
in Sirmans 1962, 467).
63 One should not lose sight of the fact, however, that the stakes of this distinction for slaves themselves were
slight. As Thomas Little notes, whether counted as “freehold” or “chattel” the treatment or entitlements of
slaves were little different. The main concern for slave-owners continued to be the definition of slaves as
property, subject to rights of exclusive ownership, control, and policing (Little 1993, 97).
64 Because the act of 1691 was re-enacted in 1693 and 1695, the explicit statutory definition of slaves as
freehold property remained on the books in South Carolina until the passage of the 1696 law.
65 In his argument before the Exchequer Chamber in Calvin’s case, Bacon noted that the formalization of
“natural” relations in positive law does not mean that this positive law then becomes the foundation for those
relations, which, for Bacon at least, remain grounded in natural law (Bacon [1641] 1859b, 646-7). One could
argue, therefore, that in enshrining the authority of custom for defining a slave in the positive law, the
Carolina legislature was not subverting custom or making the state the arbiter of its application. However, the
fact that a prior statutory definition of slavery existed which was being replaced by the customary practice of
slavery that violated that definition, the claim to a natural or long-standing customary definition of the slave loses
66Although there were Indian slaves in South Carolina, most of the slaves captured in these slaving raids were
exported from Carolina to other colonies on the American mainland and in the West Indies (Gallay 2002).
67For example, although some early English settlers in the Americas talked of the Indians as “red” or
“brown,” this was not a racial categorization as we understand it today. George Percy, an early Virginia settler,
                                                                                                Daragh Grant | 40

described the bodies of Indians as “all painted red, to keepe away the biting of Muscetos,” whereas his
compatriot John Smith, described the Indians as “of a colour browne when they are of any age, but they are
borne white” (Percy [1606-07] 1910, lviii; Smith [1612] 1910, 65). For a discussion of the concept of “race,”
see: Balibar and Wallerstein 1991. On the roots of a phenotypical conceptualization of race in the seventeenth
century, see: Allen 1994; Groebner 2007. For a discussion of the relationship and similarity between regimes
of epidermal difference (or color prejudice) and later forms of scientific racism, see: Stoler 1995.
68Although the act of 1712 was the first of the Carolina slavery statutes to include this justificatory preamble
(which was borrowed from the Barbadian slave statute of 1688), the earlier Carolina statutes had been
borrowed from the Barbadian statute of 1661, which had included a similar justificatory preamble (which the
Carolina statutes did not reproduce) that described Africans as “an heathenish brutish and uncertain
dangerous kinde of people” (Tomlins 2010, 441-2, 451).
69“An Act for the better ordering and governing of Negroes and Slaves,” 1712, SC Statutes 7:352 [emphasis
added]. Eugene Sirmans erroneously suggested that this preamble was also present in the statute of 1696
(Tomlins 2010, 439 n.121. See also: Sirmans 1962, 466).
70See: Archdale [1707] 1911; Lawson [1709] 1967; “Le Jau to the Secretary,” 1 February 1710, Klingberg (ed.)
1956, 68-9; also 13 June 1710, 80; Nairne [1708] 1988b.
71 In fact, the slave statutes explicitly ruled out this possibility, rejecting the idea that slaves, once
Christianized, would be freed from their condition of slavery (Ibid. 7:364. See also: “An act for the better
ordering of Slaves,” [1691], Ibid. 7:343). This was also the position adopted in the Fundamental Constitutions
(Locke [1669] 1997b, 179-80 § 107). For a discussion of the understanding that one could not be converted to
Christianity without first being civilized, see: Canny 1973, 585.
72 Tomlins has noted that before 1740, all slavery statutes in South Carolina were couched in a language of
exceptionalism and of the need for exceptional measures to manage slave laborers. In the act of 1740,
however, “slavery is taken for granted and the colony’s law of slavery is confidently assimilated to the
colony’s law as such, no longer exceptional, a sequestration, but instead just one more legal categorization of
a form of social action” (Tomlins 2010, 448, 450-1). Tomlins attributes this shift to a densely procedural
approach to the management of the slave population, and the protections for slaves that it offered, to the
wish of colonial lawmakers to “underline that here were men versed in the rule of law and obedient to the
dictates of natural justice, men of virtue and humanity, civilized men” (451 [emphasis added]). Tomlins may well
be correct in pointing to the desire of colonial legislators to demonstrate the congruence of their slavery
legislation with English law, for which these demonstrations were necessary (450-1). However, the argument
presented in this paper suggests that for all their turns to exceptional powers, earlier South Carolina statutes
were not considered to index a lack of civilization on the part of the colonists. On the contrary, it was their
claim to civilization, in distinction to the supposed barbarism of African and Amerindian men and women
living beyond the reach of colonial law, that was articulated as the justification for the institution of slavery.
73“Act for inhibiting of trading with slaves or servants,” 1687, SC Statutes 2:22-3. This act, which was almost
exclusively concerned with the regulation of European indentured servants, only mentioned slaves in passing
reflecting the prevailing reliance of the colony on indentured servants in the 1680s (Sirmans 1962, 464).
74   Ibid. 2:22-3.
75 Although most indentured servants were contracted to serve a fixed term, there are examples of some
indentures that extend to the natural life of the servant. Moreover, although the norm was generally that
whites tended to be indentured, and non-whites tended to be enslaved, there are some examples of
indentured Indians (Wood 2003, 233; 241 n.69, 70).
76 The contract of unfree servitude took three forms. First, servants could be “indentured,” whereby they
were bound to a contract of service for a fixed term before leaving Europe. In return, they received transport
to America and a plot of land on completion of their contract. Second, “redemptioners,” were those men and
                                                                                             Daragh Grant | 41

women who received their transportation to America from a ship’s captain and who, if they had not repaid
the captain for the passage within a set period of time, could be seized and sold to the highest bidder for a
fixed term contract. Third, convicts were often shipped to the colonies by their home government to serve
for a specified period of time, or were pardoned on the understanding that they would transport themselves
to the colonies. Europeans, therefore, were generally engaged in service either because they sought to escape
the oppressive economic or political conditions of their home countries, or forcibly because their home
countries sought to escape the problem of housing them (Williams [1944] 1994, 10-11; Smith 1947, 3-25; 89-
109; Smith 1961, 38-40).
77Unlike redemptioners or other indentures, transported convicts were sometimes disqualified from offering
evidence on the same terms as freemen (Smith 1947, 235).
78 One critical exception to this was that slaves and “free negroes” were permitted to give evidence against
themselves, in the form of a confession, and against other slaves accused of crimes (“An Act for the better
ordering and governing of Negroes and Slaves,” 1712, SC Statutes 7:352-65). H. M. Henry notes that although
“no specific law prevented the introduction of negro evidence against a white person, … his legal disability as
a witness was regarded as an axiom of law and common sense,” based on the perceived “lack of moral
responsibility [of slaves and free negroes]” (Henry 1914, 15).
79I am reminded here of Frantz Fanon’s insight in his diagnosis of the pathologies of nineteenth and
twentieth century settler colonialism, when he remarks: “In the colonies the economic infrastructure is also a
superstructure. The cause is effect: You are rich because you are white, you are white because you are rich”
(Fanon 2004, 5).
80   “An Act for the Better Ordering and Governing of Negroes and Other Slaves,” 1722, SC Statutes 7:384.
81 See, for example: “An Act for the Encouragement of the Importation of White Servants,” SC Statutes
2:153-6; “An Additional Act to an Act entitled ‘An Act for the better ordering and governing Negroes and all
other Slaves’,” 1714, Ibid. 7:367; “A Further Additional Act to an Act entitled ‘An Act for the better ordering
and governing Negroes and all other Slaves;’ and to ‘An Additional Act to an Act entitled An Act for the
better ordering and governing Negroes and all other Slaves’,” 1717, Ibid. 7:370; “An Act for the better
securing this Province from Negro Insurrections, and for encouraging of poor people by employing them in
Plantations,” 1726, Ibid. 3:272. This argument was repeated explicitly in 1730, when Governor Robert
Johnson was instructed to recommend the passage of an act by the colonial assembly to encourage the
importation of “white servants.” This was deemed important to defend against the threat of “an Insurrection
of [th]e Negroes” and the more generalized threat posed to a colony that lacked a reliable population to
defend it against its neighboring enemies (“Board of Trade to the King: Re. Gov Johnson’s Instructions,” 10
June 1730, SC Microfilm, reel 4, v.14, p.177 § 46).
82 Thomas Nairne, for example, makes reference to the frequency with which white servants were employed
as overseers of African slaves (Nairne [1710] 1989, 62).
83“An Act for the better governing of Slaves,” 1701 in Roper 2007, 416; “An Act for the better securing this
Province from Negro Insurrections, and for encouraging of poor people by employing them in Plantations,”
1726, SC Statutes 3:272.
84   “Lords Proprietors of Carolina to [the Governor and Council],” 5 June 1692, UKNA CO5/286 p.195.
85   “An Act for the Prevention of Runnaways Diserting this Government,” 1701, SC Statutes 2:181
86 An Act for raising and enlisting such Slaves as shall be thought serviceable to this Province in time of
alarms,” 1704, SC Statutes 7:347-9; “An Act for enlisting such trusty Slaves as shall be thought serviceable to
this Province in time of alarms,” 1708, Ibid. 7:349-51; “A Report of the Governor and Council,” 17
September 1708, in Merrens 1977, 32. See also: Chicken [1715] 1896, 323.
                                                                                                Daragh Grant | 42

87 In order for a slave to receive his freedom, a white man had to give evidence that he had indeed killed or
captured an enemy of the province. In the event that a slave was maimed, killed, or received his freedom, his
master received financial compensation from the public purse (“An Act for enlisting such trusty Slaves as
shall be thought serviceable to this Province in time of alarms,” 1708, SC Statutes 7:350; Nairne [1710] 1989,
52). The practice of having black slaves serve in the colonial militia continued after Queen Anne’s War ended,
with slaves fighting side-by-side with whites and Indians in defense of the colony during the Yamasee War. It
is worth noting that the Yamasee were among those Indian neighbors of the colony who had previously been
employed to hunt down and return runaway slaves attempting to flee to the relative safety of the Spanish
colony of St Augustine (“Lords Proprietors to Governor James Colleton,” 18 October 1690, SC Microfilm, reel
1, v.2, 292-3; Oatis 2004, 37, 107). For an account of the role of slaves in defense of the colony during this
conflict, see: “Le Jau to the Secretary,” 14 May 1715, Le Jau pp.155-6.
88“An Act for the Better Regulation of the Indian Trade and for Appointing a Commissioner for that
purpose,” 1731, SC Statutes 3:332. See also: Chicken [1725] 1916, 159.
89 Chicken [1725] 1916, 139. Chicken’s concern in this regard was almost certainly influenced by his
experience when trying to secure the Cherokee to the colony’s interest during the Yamasee War. In his
journal from this mission in 1715, Chicken notes that though the Cherokee were initially eager to come to
confirm their peace with the English, one their journey to Charles Town they met “2 Rogues of negroes run
away from [th]e English … come & told them a parcell of Lies which hindred their coming down” (Chicken
[1715] 1896, 344). This concern, however, also extended to Indians slaves. In 1700, the Governor and
Council complained of “Two Indians, Slaves to two of [th]e Inhabitants of this Colony, [who] proposed to a
Small nation of Indians living near them & within [th]e body of this Settlem[en]t to make warr upon us telling
them there was a great many Nations of Indians had already Agreed & Confederated to make warr upon &
Cutt off all [th]e white men.” Indicative of the symbiotic relationship between the Settlement Indians,
discussed elsewhere, and the government of South Carolina, “This Nation of Indians Imediately discovered
[th]e [plot] to a Planter” (“Governor and Council to the Lords Propriators,” 1 October 1700, SC Commissions
and Instructions, 143-4).
90In the organization of the second expedition against the Tuscarora in 1712, Barnwell again made clear his
admiration for Hancock’s fortifications before the Commons House, arguing that “our Indians will never of
themselves attempt the taking of any Fort without they are led by a considerable number of white men”
(Quoted in: Barnwell 1908, 29).
91“Report of Arthur Middleton,” 13 June 1728, SC Microfilm, reel 3, v.13. There is also some indication that
Yamasee cooperation in the capture of slaves for the colony during earlier periods had been intermittent. The
records of the Grand Council from 1692, for example, indicate that the Yamasee had allowed an Indian slave
belonging to a colonist, Daniell Huger, to live amongst them—a practice which the colony demanded that
they desist (JGCSC v.2, 31; Oatis 2004, 37, 173).
92 The first mention of a system of “ticketing” was in an “Act for inhibiting of trading with slaves or
servants,” 1687, SC Statutes 2:23. It was also included in the slave statute of 1691, whereby any person who
found a slave travelling without a ticket from their master was legally required, on pain of a 40 shilling fine, to
apprehend the slave as a runaway and administer a “moderate whipping” as punishment (“An Act for the
better ordering of Slaves,” [1691], Ibid. 7:343). The ticketing was also a feature of the slave acts of 1701, 1712,
and 1722 (“An Act for the better ordering of Slaves,” 1701, in Roper 2007, 408, 415-16; “An Act for the
better ordering and governing of Negroes and Slaves,” 1712, SC Statutes 7:352-3; “An Act for the better
ordering and governing of Negroes and other Slaves,” 1722, Ibid. 7:371).
93   “An Act for the Prevention of Runnaways Diserting this Government,” 1701, SC Statutes 2:180-1.
94   Ibid. 2:180-1
95   “Francis Younge to the Board of Trade,” 30 April 1724, SC Microfilm reel 3, v.11 [emphasis added].
                                                                                                Daragh Grant | 43

96 Toward the end of the period under study here, the colony of South Carolina engaged in a series of
negotiations to settle its boundaries with local communities—the Spanish at St. Augustine, and with the
colonies of Georgia and North Carolina. See, for example: “Arthur Middleton to Francis Nicholson,” 10
September 1725, SC Microfilm reel 3, v.11; “Robert Johnson, Francis Younge, and Samuel Wragg to the Board
of Trade,” 28 May 1728, Ibid. reel 3, v.13, 51-4; “Board of Trade to the Privy Council,” 22 December 1731,
Ibid. reel 4, v.15, 76-7; “Gov. Robert Johnson to Gov. Burrington of North Carolina,” 22 Feb 1733, Ibid. reel
4, v.16, 8-10; “Indenture between Carteret and the Georgia Trustees,” 28 February 1733, Ibid. reel 7, v.22,
366-71; “Mr. Shelton’s account of the bounds and settlement of Carolina & the Bahama Islands,” 21 May
1728, UKNA CO5, v.360 c.22.
97 France, for example, enacted a passport law in 1623 (Groebner 2007, 227-8). The Virginia colony issued
“pasportes” from the first settlement of the colony in 1606 (Wingfield [n.d.] 1910, lxxvii). As early as 1690,
the colony of North Carolina (also under proprietary rule) issued passports to white men to indicate their
freedom to move in and out of the colony, and to indicate that they were not burdened by a contract of
indenture (“Passport issued by Chris[toph]er Merchant [Gov.?] of Albemarle County, Carolina to John
Hastings,” 18 August 1690, BL, Sloane series v.2717, f.28).
98 I am drawing here on Hannah Arendt’s claim that “authority has vanished from the modern world”
(Arendt [1961] 1993, 91). Following Bonnie Honig, and given the interdependent relationship Arendt
establishes between power (potestas) and authority (auctoritas), I take her meaning to be that a particular type of
authority emanating from the legitimating force of history and religion, rather than authority as such, has
disappeared from the world since the middle ages (Honig 1991, 101-2). However, I differ with Arendt over
the claim that the performative utterance—the “We hold”—of the American Declaration of Independence can
be understood as “founding a completely new body politic without violence … [that] escaped the European
development of the nation-state” (Arendt [1961] 1993, 140; [1963] 2006, 192-3). It strikes me that Arendt’s
point is plausible only if one ignores that this very performative utterance that brought into being the
community of Americans that it also described, simultaneously worked to exclude those deemed ineligible for
the protections of the Declaration. This history of exclusion grew out of considerable violence that went far
beyond what she terms the “criminal and beastly” deeds of those “single men” who “rushed out of society
into the wilderness [and] left the range of enforceable law” ([1963] 2006, 83). Whilst Arendt asserts that the
actions of these individual men cannot be taken as a reflection “upon the political behaviour of organized
groups,” I argue that this is precisely how they must be understood (83). The very act Arendt celebrates for
its ingenuity and non-violence, I argue, bears all the marks of violent exclusion. This was not merely the
assertion and creation of a new body politic apart from the ancien régimes of the Old World, but a body politic
built on the exclusion of the colonial Other. This was a “We-the-People” that fashioned itself in explicit
opposition to a “They-the-Other” beyond the colonial frontier.

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