American Slave Branding: Insidious Identification and Depraved Punishment

• Publication year: 2020
• Author: By Lani L. Biafore, Esq.

AMERICAN SLAVE BRANDING: INSIDIOUS IDENTIFICATION AND DEPRAVED PUNISHMENT

By Lani L. Biafore, Esq.^*

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Introduction

The 1845 lithograph by Nathaniel Currier, supra, entitled Branding Slaves on the Coast of Africa Previous to Embarkation depicts a "kneeling, frightened African prisoner being branded on the back by a hot iron held by a slaver."² While many injustices inherit in American slavery have been argued, discussed, and written, the concept of slave branding is often mentioned in brief sentences regarding the myriad of punishments inflicted on a slave during the slavery period in the United States.

The Eighth Amendment, ratified in 1791, stated: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. It technically and legally prevented the branding of slaves as it prohibited "cruel and unusual punishments inflicted."³ The branding of African and African-American slaves during the Antebellum period was widespread in the slave states and was performed either for identification purposes for ownership and placement, or as a punishment and the indicia of punishment.⁴ For purposes of this article branding is defined as the searing of flesh by a hot iron or hot poker. Further, branding is distinguished from stigmata, tattooing, tribal scarification, and ritual scarification.

The placement of brands on the human body differed by millennia, country, company, and slave owner. Thus, by the middle of the 1800s, prior to the Civil War, branding as a mechanism of punishment and mutilation was still utilized by slavers. It was also an instrument of control used for identification, to prevent escape, and facilitate relocation. "Brands were material components that controlled and guaranteed the perpetuation of the slave system."⁵

A Brief History of Slavery

Slavery as a human made institution has existed since time immemorial.⁶ "To be a slave is to be owned and controlled by another person,"⁷ and therefore a slave is not a free person in control of his or her destiny. Ancient civilizations had slaves and many accounts survived that documented the behaviors of the enslaved and the slave owners.⁸ "The ancient Greeks, the Romans, Incas, and Aztecs"⁹ all had forms of institutionalized slavery and slaves to work the fields, maintain households, build cities, and wage war. Slavery "was central to the societies of ancient Greece and Rome"¹⁰ and it aided the expansion of the empires. The Ancient Roman version of slavery did not discriminate based upon race but encompassed conquered peoples who inevitably may earn freedom, as the Ancient Roman system of slavery enabled manumission.¹¹ European, Native American, and African slavery enabled slaves to have some modicum of rights and enabled paths to freedom. Specifically, "Spain had enacted a series of laws granting slaves certain rights relating to marriage, the holding of property, and access to freedom."¹² And, slaves eventually assimilated into Portuguese speaking Brazil and the Spanish speaking countries in South America.¹³

The Spanish and Portuguese required huge labor forces for sugar and coffee plantations in the New World. Colonial powers often forced the newly conquered native populations into working on the plantations, but the grueling working conditions coupled with new diseases from Europe decimated the native population and emaciated the work force. Desperate for a new source of free labor, Iberian traders looked to trading contacts in West Africa. Slaves from Africa were ideal for working in the New World as many had farming experience, most were immune to diseases from Europe, and all were deemed inferior beings, thereby negating any religious opposition to slavery. Utilizing the transatlantic slave trade initiated by the Portuguese in the in 1400s, the English began to import slaves from West Africa into the West Indies and the Virginia colony in the 1600s.¹⁴ The slave trade in the New World was part of a triangulated trading system whereby goods, money, and slaves traded from Africa to the West Indies to the American Colonies.

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Slavery in the United States began in colonial times by Chesapeake planters who needed more labor for the infant tobacco industry.¹⁵ By the 1700s most colonies had slaves working on farms, in households, and on large plantations. Slavery in the United States and the New World differed from past types of slavery in that is was a systematic, whole scale, contrived practice that rendered human beings as chattel or property based solely upon race.¹⁶ Africans epitomized slavery because the color of skin determined a person's race. The slavery that previously existed in Europe and Africa was based on social or class distinction. The new system conveniently and easily determined who was enslaved and who was not: anyone of African decent was deemed a slave.

In legal terms, chattel is an article of property, other than real estate or land.¹⁷ Precisely, chattel is a personal object or personal possession. "A chattel slave is an enslaved person who is owned for ever and whose children and children's children are automatically enslaved. Chattel slaves are individuals treated as complete property, to be bought and sold. Chattel slavery was supported and made legal by European governments and monarchs."¹⁸ Chattel slavery was the style of slavery that developed in European colonies beginning in the 1400s and was imported to the United States and diffused to into the slave states.¹⁹

The year 1808 was the benchmark date that abolished the international slave trade. This was adopted by Britain and the United States. However, the domestic slave trade in the United States flourished and by the early 1800s, most slaves in the United States were native born. Slave codes ensured that slaves had no rights and were regarded as property in perpetuity. The children and grandchildren of the enslaved reinforced slavery and remained slaves: there was no door to freedom.

In 1865, The Thirteenth Amendment to the United States Constitution was ratified, effectively ending slavery and its associated practices. "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."²⁰

The Mark of Ownership

Webster's Dictionary defines a brand as a "mark made by burning with a hot iron, as upon a criminal, or upon a cask; a stigma; any note of infamy."²¹ The legal definition of a trademark is "a distinctive mark, motto, device, or emblem, which a manufacturer stamps, prints, or otherwise affixes to the goods he produces, so that they may be identified in the market, and their origin be vouched for."²² As part of the British Empire, the American colonists understood the English system of ownership and the use of trademarks to promote and preserve the ownership of personal property.²³ Slaves owners in the colonies used brands as a form of identifying and locating chattel slaves. However, this was not a new or novel practice, but one rooted in human history.

"Branding as a mechanism for distinguishing human property began in 2000-1800 B.C. with Babylonian slaves."²⁴ The earliest known documentation regarding the usage of brands and slave branding comes from the Ancient World. "Like tattooing, the branding of humans had more than one function, though the predominant one was penal. This use is found very early. The law code of Hammurabi refers to a slave-mark, which is understood to be a brand, and a brand was used in the Neo-Babylonian period. There is abundant evidence from Pharaonic Egypt."²⁵ Additionally, Ancient Romans branded slaves to determine the owner or household where the slave belonged.

The Portuguese slave traders used brands on slaves to mark property as belonging to the King of Portugal or a specific individual or owner.²⁶ Later, during the transatlantic slave trade from West Africa, European nations had unique brands to mark chattel or property going to colonies in the West Indies, Brazil, Cuba, and the United States.²⁷ The Spanish specifically branded slaves heading to Cuba to signify that slaves were nothing more than another commodity.

[S]laves landed at Sao Tome were branded with a cross on the right arm in the early sixteenth century; but, later, this design was changed to a 'G,' the marca de Guine. Slaves exported from Luanda were often branded not once but twice, for they had to receive the mark of the Luso-Brazilian merchants who owned them as well as the royal arms—on the right breast—to signify their relation to the Crown. Sometimes, baptism led to the further branding of a cross over the royal design. Slaves of the Royal Africa Company were marked, with a burning iron upon the right breast, 'DY,' duke of York, after the chairman of the company. In the late eighteenth century, a 'G' would indicate that the slave concerned had been marked by the Compa&ntílde;ia Gaditana, the Cádiz company concerned to import slaves into Havana in the late 1760s.²⁸

In the early 1800s...