Slavery and Law in North America

By: Paul Finkelman

Source:

 Africana: The Encyclopedia of the African and African American Experience, Second Edition

Slavery and Law in North America

Relationship between criminal, civil, and constitutional law and the development, maintenance, and defense of the institution of North American slavery.

Slavery was unknown in the British Isles when the first English colonists arrived in North America in the late 1500s. Moreover, the very idea of slavery was contrary to English law. Thus, although slavery could be found throughout the Spanish and Portuguese settlements of the Americas, the English did not adopt the institution immediately.

Early Slavery in Virginia

In the early years of the English colonies, the landowning and elite English colonists in Virginia, Maryland, and elsewhere relied on indentured servants, who contracted their services for a limited term of years, for their labor supply. In 1619 the first Africans arrived in Virginia aboard a Dutch ship. The Virginia colonists treated these Africans as indentured servants, and some eventually gained their freedom. Throughout the 1620s the legal system in Virginia seems not to have discriminated against blacks. For example, a record from 1624 notes that “John Phillip, A Negro” was allowed to testify in a lawsuit involving two whites, a right that would later be rescinded for blacks.

By 1640, however, the legal system had begun to single out Africans for distinctly different treatment. In that year a Virginia court sentenced a black indentured servant named John Punch to “serve his said master or his assigns for the time of his natural Life here or elsewhere.” No white indentured servant in Virginia ever received such a sentence. At about this time court records and wills indicate that other blacks were being treated as slaves.

The legal system was not uniformly hostile to blacks in the seventeenth century. For example, as late as 1672 a Virginia court freed Edward Mozingo, ruling that he had been brought to the colony as an indentured servant, had served his full term of years, and was entitled to his freedom. A year later the court ruled in favor of a freedom claim by “Andrew Moore, A Servant Negro.”

However, Mozingo and Moore were the exceptions to the growing support for slavery by the Virginia courts and legislature. In 1659 and 1660 the Virginia legislature recognized the existence of slaves in the colony by providing an import tax for “foreigners [who] shall import negro slaves.” Two years later the legislature provided that if white servants ran away with slaves, the whites would have to serve extra time to make up for the time that the slaves were absent because the slaves could not have any more time added to their service. This law had the practical effect of separating white indentured servants (who still made up the majority of agricultural workers in the English colonies) from black slaves. White workers, who frequently ran away, could no longer afford to share their plans or their hopes of liberty with their black coworkers. This was the beginning of a conscious attempt by the leaders of Virginia and other colonies to drive a wedge between black and white workers.

In 1662 the Virginia legislature passed its most important early statute on slavery. This act declared that “all children born in this country shall be held bond or free only according to the condition of the mother.” This legal rule, known as partus sequitur ventrem (the offspring follows the mother), was based on Roman law and was a complete reversal of existing English common law. In England the status of a child, even an illegitimate child, was based on the status of the father. But under this rule children in Virginia would follow the status of the mother. Every other English colony in North America eventually adopted this rule.

This law had two practical results. First, it meant that the children of black women throughout the American South would usually be slaves, even if their fathers were free. Second, this law facilitated sexual relations between male owners and female slaves. At this time in the colonies, fathers of children born outside of marriage were frequently prosecuted, both to bring public shame on them and to ensure their support for their children. However, this law took away any fear of such prosecution for sex with slaves. Any children born of such a relationship would be slaves, owned by the owner of the slave mother. The state would have no interest in investigating who the father was, because the master would happily pay for the costs of raising another slave. Thus this law encouraged the sexual exploitation of slave women.

In 1669 the Virginia legislature declared that masters or overseers would not be criminally liable if a slave died while being punished. In 1680 the legislature further declared that any white could kill a slave believed to be a fugitive. The same law provided the severe penalty of 30 lashes for any slave who “shall presume to lift up his hand in opposition” to any white. A 1691 law directed sheriffs to “kill and destroy” slaves hiding out in the woods and further guaranteed that the colony would recompense a master for the value of the dead slave. This law put the military force and the economic power of the colony behind the emerging institution of slavery.

By 1700 slavery was an integral and significant part of the Virginia economy. White indentured servants still outnumbered slaves, but indentured servitude was clearly being eclipsed by slavery. In 1705 Virginia enacted its first comprehensive statute on slavery, “An Act Concerning Servants and Slaves.” Combining many earlier acts, the law required that slaves be taxed as property and registered by their owners, explained when runaways or rebellious slaves “may be killed,” and described what other punishments might be inflicted on slaves. The law made clear that blacks were a pariah race whose members could not marry whites or associate with them. The law equated blacks with slaves, although in fact hundreds of blacks in the colony were free.

In the South and in the North

By 1750 all of the Southern colonies and most of the Northern ones had adopted slave codes similar to those of Virginia. In the process they managed to create an entirely new area of law, unknown in England, to support slavery in the colonies. While colonial legislatures tinkered with these codes, they remained basically the same until the American Revolution (1775–1783).

Slavery was particularly important in the Southern colonies because they relied on large-scale agriculture, although Rhode Island, New York, New Jersey, and Pennsylvania all had significant numbers of slaves as well. The laws of all the colonies were similar. Slaves had virtually no legal rights. They could be executed in most places for numerous crimes that were not capital offenses for whites. Their testimony was restricted in legal cases and could not be used for or against whites. Trials of slaves were usually by special courts. They could not own property, could not possess guns or dogs, could not move about without the consent of their owner, and could not be legally married. Throughout the South, killing a slave was not murder; it was usually considered simply a destruction of property. It was not considered a crime to kill a slave who was resisting white authority, rebelling, or even, in some circumstances, running away. In Virginia, the colony with the largest slave population, and elsewhere in the South, it was even illegal for a master to manumit (voluntarily free) a slave.

Slavery and the Revolution

Slavery was legal in all of the thirteen colonies that revolted against Great Britain in the American Revolution. It was also legal in Canada, where, with the exception of Upper Canada (present-day Ontario), it remained legal until Britain abolished slavery throughout its remaining colonies in 1834. Thereafter Canada generally served as a safe haven for runaway slaves from the United States, who fled by means of the Underground Railroad.

The American Revolution, however, undermined the basis of slavery through the articulation of the principle “all men are created equal” in the Declaration of Independence. During and after the war Northern patriots took seriously this new ideology and took steps to end slavery. Massachusetts (1780) and New Hampshire (1784), ended slavery outright in their new state constitutions. Vermont had abolished slavery in its 1777 constitution, which was officially recognized when it became the fourteenth state in 1791. Pennsylvania (1780), Connecticut (1784), Rhode Island (1784), New York (1799), and New Jersey (1804) adopted “gradual emancipation statutes,” which provided that the children of all slave women would be born free (although subject to indentured service until adulthood), and that no new slaves could be brought in from other states. Upper Canada adopted a similar law in 1793. New York accelerated this process by ending all slavery on July 4, 1827. By the 1840s Pennsylvania and Connecticut had also eliminated the last vestiges of slavery.

The Revolution also had some effect on slavery in the South. For example, in 1791 North Carolina made it a capital offense to murder a slave. The preamble to this statute, which was later declared unenforceable for technical reasons, acknowledged the ideological changes brought about by the Revolution. In 1782 Virginia allowed for the voluntary manumission of slaves by masters. As a result, the free black population of the state grew from about 2,000 to about 30,000 between 1782 and 1806, when Virginia modified the law by requiring newly freed slaves to leave the state. Other Southern states eased restrictions on voluntary manumission. However, none of the Southern states considered actually ending slavery. On the contrary, most Southerners assumed that one of the benefits of the Revolution was the new states' increased right to pass laws that strengthened slavery within their territory.

Slavery and the Constitutional Convention

From the first day of substantive debate at the Constitutional Convention in 1787 until the final signing of the finished Constitution, slavery was a central issue. On the first day of debate the issue of slavery nearly derailed the convention as the delegates considered a proposal to have representation based on population. The discussion had hardly begun when the question of counting or not counting slaves for purposes of representation led to bitter debate. Despite this controversy, the finished Constitution protected slavery in a variety of ways.

The three-fifths clause (Article I, Section 2, Paragraph 3) provided for counting three-fifths of all “other Persons”—slaves—for purposes of representation in Congress, although such people of course could not vote. At the end of the convention Elbridge Gerry of Massachusetts refused to sign the Constitution, at least in part because the three-fifths clause gave the South increased representation and political power because of its slaves.

The slave trade clause (Article I, Section 9, Paragraph 1) prohibited Congress from banning the “Migration or Importation of such Persons as any of the States now existing shall think proper to admit” before the year 1808. Awkwardly phrased and designed to confuse readers, this clause prevented Congress from ending the African slave trade before 1808 but did not require Congress to ban the trade after that date. The clause was a significant exception to the general power granted to Congress to regulate all commerce.

The Electoral College clause (Article II, Section 1, Paragraph 2) provided for the indirect election of the president through an electoral college based on congressional representation. This provision incorporated the three-fifths clause into the Electoral College, giving whites in slave states a disproportionate influence in the election of the president. In 1800 the electoral votes based on slaves provided the margin of victory for the slaveholding candidate, Thomas Jefferson, over John Adams, who had never owned a slave.

The fugitive slave clause (Article IV, Section 2, Paragraph 3) prohibited the states from emancipating a “Person held to Service or Labour in one State … and escaping into another”—a fugitive slave—and required that runaways be returned to their owners if claimed. Oddly, no Northerners commented on this clause during the debates over ratification. By the 1830s, however, it had emerged as the most controversial clause connected to slavery.

Finally, the structure for changing the Constitution provided enormous protection for slavery. Ratification of constitutional amendments required the approval of three-fourths of all the states, so a small minority of the states could block any constitutional change. Only the Northern victory in the American Civil War (1861–1865) finally allowed for the voting bloc of slave states to be overturned. As a condition for the states of the Confederacy to be readmitted into the Union, they were required to approve the Thirteenth Amendment (1865), which abolished slavery.

Southerners left the Constitutional Convention pleased with the result. South Carolina delegate General Charles Cotesworth Pinckney told his state's house of representatives, “We have a security that the general government can never emancipate [the slaves], for no such authority is granted.” “In short,” Pinckney bragged, “considering all circumstances, we have made the best terms for the security of this species of property it was in our power to make.”

Slave Law in the Nineteenth Century

By the early 1800s the Southern states began to move further away from ideas of liberty and equality when it came to slaves. The law of the South after this period usually strengthened slavery as an institution and supported the interests of the master class.

One way of strengthening slavery was to make it less harsh. This would make slave rebellions less likely and undercut abolitionist critiques of the institution. Thus, for example, in the 1820s South Carolina prohibited branding, dismemberment, castration, and other barbaric forms of punishment that had been legal in the colonial period. Similarly, by 1860 all Southern states recognized that no one, not even a master, could murder a slave in cold blood. In State v. Hoover (1839) the North Carolina Supreme Court upheld the death sentence for a master who tortured his slave to death. Shortly before the Civil War a few Southern states made rape of a slave a crime, although no white was ever prosecuted for such a crime.

Along the same lines, Southern states provided some due process protections for slaves accused of crimes. Courts throughout the South overturned convictions of slaves who were denied a lawyer, coerced into giving confessions, improperly prohibited from calling witnesses, or incorrectly charged. In Dick v. Mississippi (1856), for example, the Mississippi court reversed the conviction of a slave for raping a white woman because the indictment described the defendant as “a negro man slave” when in fact “the prisoner was a mulatto slave.”

These procedural victories, however, helped few slaves charged with crimes. Most slaves accused of criminal offenses were given quick trials and harsh punishments. Slaves were at all times made subordinate to whites, and the Southern legislatures and courts readily accepted and supported this idea. A few Southern courts held that a slave could resist a white in order to save his or her life, but this was the only exception to the general rule that masters must be obeyed at all times. In State v. Mann (1829), the most famous case involving the criminal law of slavery, Chief Judge Thomas Ruffin of the North Carolina Supreme Court reversed the conviction of a man who had shot and wounded a rented slave. Ruffin declared, “The slave, to remain a slave, must be made sensible, that there is no appeal from his master; that his power is in no instance usurped, but is conferred by the laws of man at least, if not by the law of God.”

Although restrictions on manumission had been eased in the Southern states during the Revolutionary War period, by 1860 almost all of the states that would join the Confederacy either prohibited manumission or made it extremely difficult. Most slave states made it a crime to teach a slave to read. It was a crime in most of the South to circulate literature critical of slavery, and in the 1850s Harriet Beecher Stowe's antislavery bestseller Uncle Tom's Cabin was banned throughout most of the region. Slaves could often not even organize their own worship services without whites being present. Many of these restrictive laws were also applied to the more than a quarter of a million free blacks who lived in the South by 1860. Free blacks from the North or other countries who entered Southern states as merchant seamen were routinely incarcerated while their ships were docked. By 1860 most of the slave South was a closed society in which neither whites nor blacks were allowed to question the value of slavery.

By 1830 slavery had completely disappeared in most of the North, and although a few aging slaves could be found in Pennsylvania, New Jersey, Connecticut, and Illinois, the system itself was dead. In the three decades before the Civil War Northerners passed laws to protect their free black neighbors from kidnapping. Gradually, although grudgingly, Northern whites also offered free blacks some social, political, and economic rights. Blacks could vote in all the New England states except Connecticut, and in New York free blacks who owned property could vote. In the 1850s, blacks held elective or appointive office in Ohio, Massachusetts, and Rhode Island.

Most Northern states passed personal liberty laws designed to frustrate, where possible, attempts by Southerners to reclaim fugitive slaves. Northern states also moved to free the slaves taken into their states by visiting masters. In Somerset v. Stewart (1772) the Court of Kings Bench in London had ruled that if a master brought a slave to England, the slave instantly became free. This ruling was part of the common law of the colonies at the time of the Revolution. Despite this precedent, most Northern states at first allowed masters to retain ownership of slaves brought into their states for a short time. However, starting with Commonwealth v. Aves (1836) in Massachusetts, the free states began to free slaves the moment they were brought into the North. Before the 1830s about half the slave states recognized the freedom of slaves who had lived in the North, but by 1860 most refused to uphold freedom gained in free states. In Mitchell v. Wells (1859) Mississippi even rejected the freedom of a slave whose owner had brought her to Ohio and voluntarily manumitted her there.

Slavery and National Law

After the adoption of the Constitution, Congress and the Supreme Court generally supported slavery. In 1793 Congress passed the first fugitive slave law to help masters recover runaway slaves. An amendment to that law, known as the Fugitive Slave Law of 1850, provided federal help to masters and harsh penalties for anyone interfering with the return of runaway slaves. Throughout the period, the Supreme Court interpreted such laws to benefit masters.

In 1808 Congress banned the importation of slaves. This was not necessarily an antislavery measure, however, as many slave owners in Virginia and Maryland favored such a ban because it would increase the value of their slaves. And Congress and the executive branch effectively did not enforce the ban until the Civil War. Meanwhile, in The Antelope (1825) and other cases, the Supreme Court upheld the legality of the international slave trade. In United States v. Amistad (1841) the Supreme Court ordered that African slaves who had taken control of their Spanish slave ship and landed on American shores should be set free, but only because they had been illegally imported to Cuba in the first place. Had they been legally held as slaves in Cuba, the Court was prepared to return them to their owners.

In the Northwest Ordinance (1787) Congress banned slavery in the Northwest Territory (the present-day states of Ohio, Indiana, Illinois, Michigan, Wisconsin, and eastern Minnesota). Congress never implemented this part of the law, however, and in Illinois some blacks were held as slaves, or indentured servants for life, until the 1840s. In the Missouri Compromise (1820) Congress banned slavery in the territories north and west of the southern boundary of Missouri. In the Compromise of 1850 Congress modified the ban further to allow slavery in most of the territories ceded to the United States after the Mexican War. And in the Kansas-Nebraska Act (1854) Congress opened up most of the West to slavery.

In Dred Scott v. Sandford (1857) the Supreme Court ruled that all bans on slavery in the territories were unconstitutional because Southerners had a constitutional right to take their slaves into any federal territories. The Court also ruled that blacks had no legal rights under the Constitution and that they could never be citizens of the United States. The Dred Scott decision led to an extraordinary backlash in the North. Abraham Lincoln's sharp critique of the decision helped propel him to the Republican nomination for president in 1860.

The nation effectively overruled Dred Scott during and after the Civil War. During the war Congress banned slavery in the territories and in the District of Columbia and, with the enlistment of black troops starting in 1862, acknowledged that African Americans could indeed be part of the United States citizenry. Lincoln's Emancipation Proclamation (1863) declared an end to slavery in all Confederate territory not then under the control of the Union Army, although this could not be enforced while the Confederacy still controlled those areas. The final reversal of Dred Scott came with the adoption of the Thirteenth Amendment, which ended slavery everywhere in the United States, and the Fourteenth Amendment (1868), which declared that all people born in the United States were citizens of the nation and of the state in which they lived.

See also Abolitionism in the United States; Amistad Mutiny; Antelope Case; Criminal Justice System and African Americans; Free Blacks in the United States; Fugitive Slave Laws; Fugitive Slaves; Slave Laws in Colonial Spanish America; Slave Religion; Slavery in the United States; Slavery in Latin America and the Caribbean; Transatlantic Slave Trade.

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