Recent reading: on brands and sumptuary codes

Inspired by Kali Murray’s great comments at this past week’s Race
and IP conference, some notes from recent reading:

Virginia DeJohn Anderson, Creatures of Empire: How Domestic
Animals Transformed Early America

Relevant to TM and sumptuary laws (addressed in Barton Beebe’s excellent work), Anderson recounts how in
some places Native people were barred from marking their own livestock, but
punished if they killed a marked animal. In other places/times, both Indians
and colonists were required to use their own brands to identify animals, but
who got away with violating the rules was unsurprisingly racialized.

Relevant quotes (footnotes omitted):

In the Chesapeake, as in England,
livestock owners could protect their rights to mobile property by marking their
animals. A few seventeenth-century planters branded cattle on the horn, but
most colonists preferred to clip animals’ ears. Virtually every family had its
own earmark, involving some combination of slits, holes, half-circles, forks,
“fleur-de-lis,” or cropping. They registered their marks at the county court,
where the information was recorded to help in identifying strays. Colonists
regarded earmarks as a form of personal property to be handed down through the
generations. In 1658 when Thomas Gerard neglected to register his earmark and
William Evans then used it himself, an angry Gerard took the case to Maryland’s
Provincial Court. Gerard protested that his mark was “of a long standing,
although not heretofore recorded” and had been “injuriously taken” from him.
Since Evans had not yet used it, Gerard argued, the earmark ought to be
restored to its rightful, if negligent, owner. Far from finding this a
frivolous proceeding, Maryland’s governor not only heard the case but, in an
unusual move, polled the councillors for their individual opinions. Four of the
five officials sided with Evans, noting his compliance with the law. The
governor, however, found merit in Gerard’s emotional plea and asked Evans to
relinquish his claim. Evans did so, and a chastened Gerard promptly recorded
the mark in his own name….

The Bay Colony legislature tried to
minimize contention with a 1634 measure stipulating that trespassing swine
would be dealt with according to the rules of the town in which the animals had
been found, but this did not help aggrieved parties discover where the beasts
actually belonged. Thus in 1647 the General Court required owners to paint a
symbol with pitch on the flanks of livestock designating the town where they
lived. Just as earmarks labeled livestock as private property, these town
marks, or in some cases brands, identified them as animal members of a
community. Yet town marks also symbolized the attenuated control of each
community over its animals’ whereabouts….

Natick’s herds had grown
sufficiently numerous by 1670 that its inhabitants [“praying Indians”] petitioned
the Massachusetts General Court to assign them a town brand to distinguish
their animals from those belonging to neighboring settlements. Although some
form of the initial letter of a town’s name customarily served as a brand mark
for English communities, magistrates designated a bow and arrow for Natick—an
ambiguous symbol at best, suggesting that no amount of acculturation would
fully erase from English minds the sense that Indians remained fundamentally
different from colonists….

Indians knew that colonists
identified their animals by earmarks; whether native owners would be allowed to
do the same remained an open question for several decades. A story that
probably originated in Virginia and later circulated in England suggested that
by the 1650s earmarks had at least become a topic of conversation between
Indians and colonists. Informed by irate Englishmen that his followers had been
stealing hogs, a sachem reportedly countered that colonists had been just as
busy killing the Indians’ deer. The English reminded him that earmarks
identified the hogs as private property but deer displayed no comparable sign
of ownership. “Tis true indeed, none of my deer are marked,” the Indian coolly
replied, “and by that [you] may know them to be mine: and when you meet with
any that are marked, you may do with them what you please; for they are none of
mine.” Possibly apocryphal, the anecdote nevertheless fairly represented Indian
wit and addressed a topic of current interest to both parties….

Once Chesapeake-area Indians owned
swine, the virtues of marking them became self-evident. Unmarked hogs offered
tempting targets for colonial thieves, who needed only to clip the ears of such
creatures to claim them as their own. Given the propensity of colonists to
steal livestock from one another, this was no idle threat. Earmarks also
distinguished Indian hogs from feral swine. Native owners could have marked
their beasts at any time, but these marks would not provide genuine protection
until colonial authorities recognized them as legitimate symbols of private
property. Virginia’s legislature did not make such a concession until 1674
when, in a measure aimed at curbing Indian theft of English animals, it ordered
county courts to designate “a perticuler marke” for inhabitants of each native
town to use on their swine. Assigning a mark to towns instead of individuals
may have indicated that Indians regarded swine as common property, or simply
that the burgesses failed to make distinctions among native owners. Whether
earmarks actually enabled Indians to defend their animal property is unclear.

Oddly enough, when faced with the
same circumstances, New England magistrates adopted precisely the opposite
tactic. Although there is evidence to suggest that some Indians in Rhode Island
took the initiative to begin marking their swine, one by one New England legislatures
moved to prohibit the practice. Between 1666 and 1672, Rhode Island, Plymouth,
and Massachusetts all ordered that “noe Indian shall give any eare marke to his
swine upon the penalty of the forfeiture of such swine.” Indian hogs brought to
market had to have uncut ears; native sellers of pork likewise had to produce
intact ears to prove ownership. The ostensible reason for this policy was to
prevent Indians from profiting from stolen English swine, but its more obvious
effects were to complicate Indians’ market activity and to render Indian
animals vulnerable to unscrupulous colonists who merely had to mark the
creatures’ uncut ears and claim possession. There was also no way for Indians
to distinguish their swine from feral beasts that, if less numerous in New
England than in the Chesapeake, still roamed the woods and were regarded by
colonists as fair game. If Christian Indians in Natick, allowed to have a town
brand for their animals, were exempted from the earmark prohibition in
recognition of their efforts at acculturation, they would have been the
exception that proved the rule. New England magistrates otherwise denied
Indians use of the acknowledged symbol of legitimate ownership, as if it ought
to signify their progress toward civility rather than their hogs’ status as
private property.

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