Slavery, Law Of

By: Paul Finkelman

Source:

 The Oxford Companion to American Law

Slavery, Law Of

Slavery flourished in most of the New World before 1600, but the British colonists were slow to adopt it, in part because slavery was unknown in seventeenth-century Britain and no legal structure was in place to protect this peculiar form of property. Initially, the landowning and elite English colonists relied on indentured servants for labor. The British treated the first Africans, who arrived on a Dutch ship in 1619, as indentured servants; some of the Africans gained their freedom, and there is no evidence of overt discrimination against blacks.

By the 1630s the legal system was singling out Africans for distinctly different treatment. In 1640 a Virginia court sentenced a black indentured servant who had run away to “serve his said master or his assigns for the time of his natural Life here or elsewhere.” No white runaway indentured servant in Virginia ever received such a sentence. By the 1650s court records regularly referred to “slaves.” Further, a 1662 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 English law; it was adopted throughout British America. The rule meant that the children of enslaved black women would be slaves, even if their fathers were free. It facilitated the sexual exploitation of female slaves, because any illegitimate children became slaves owned by the mother’s master.

In 1705 Virginia enacted its first comprehensive statute on slavery. The law provided for the taxing and registration of slaves, explained when runaways or rebellious slaves “may be killed” and listed other punishments that might be inflicted on slaves. The law equated blacks with slaves, although the colony contained hundreds of free blacks. By 1750 all the Southern colonies, and most of the Northern ones, had adopted similar slave codes. In the process they created an entirely new area of law, unknown in England, to support slavery.

Under these early codes, slaves had virtually no legal rights. In most areas they could be executed for crimes that were not capital offenses for whites. Their testimony was restricted in legal cases and could not be used either for or against whites. Trials of slaves were usually by special courts. Slaves could not own property, move about without the consent of their owners, or legally marry. Throughout the South, the killing of a slave was not murder. Killing a slave who was resisting white authority, rebelling, or even, in some circumstances, running away was not a crime. By the end of the colonial period slaves were considered chattels, or movable property. Throughout the colonial South a master could not manumit (voluntarily free) a slave. By 1775 slavery was legal in all thirteen colonies.

The Declaration of Independence undermined the basis of slavery by articulating the principle that “all men are created equal.” During and after the Revolutionary war, northern patriots took this new ideology seriously and took steps to end slavery. Pennsylvania (1780), Connecticut (1784), Rhode Island (1784), New York (1799), and New Jersey (1804) adopted gradual emancipation statutes. While no existing slaves gained freedom as a result, these laws set the stage for an end to bondage by providing that the children of all slave women would be born free, subject to indenture until adulthood. Massachusetts (1780), New Hampshire (1784), and the fourteenth state, Vermont (1791), ended slavery outright in their new state constitutions.

The Revolution also affected slavery in the South. For example, in 1791 North Carolina made it a capital offense to murder a slave; the preamble to this statute acknowledged the changes brought about by the Revolution. In 1782 Virginia allowed for the voluntary manumission of slaves by masters, although in 1806 it modified the law by requiring newly freed slaves to leave the state. Other Southern states eased restrictions on voluntary manumission. Virginia and Maryland also prohibited the importation of slaves. However, none of the Southern states considered ending slavery or taking steps to find a long-term solution to the problem of human bondage.

The Southern delegates to the Constitutional Convention reflected the region’s commitment to slavery, fighting throughout the convention, with great success, to protect slavery. The final document counted slaves for apportioning representatives and electoral college votes; protected the African slave trade for at least twenty years; guaranteed that masters could recover their fugitive slaves; prohibited an indirect tax on slavery by banning export taxes; and guaranteed that the national government would suppress insurrections, including those led by slaves.

Finally, the entire constitutional structure protected against national emancipation. Constitutional amendments required approval by three-fourths of the states for ratification, giving the slave states a perpetual power to block an amendment ending slavery.

Southern Slave Law in the Nineteenth Century.

After the Revolutionary period, the law in the South strengthened slavery as an institution. Ironically, one way of strengthening slavery was to make it less harsh, because this would make slave rebellions less likely and undercut abolitionists’ critiques of the institution. Thus, 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 anyone, even a master, who killed a slave in cold blood could be charged with murder. 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 there is no instance of a white man being prosecuted for such a crime.

Along the same lines, Southern states provided due process protections for slaves accused of crimes. Courts throughout the South overturned convictions of slaves who were denied a lawyer, were coerced into confessing a crime, were improperly prohibited from calling witnesses, or were incorrectly charged. Such procedural victories helped few slaves charged with crimes. Most slaves accused of criminal offenses were given quick trials and harsh punishments.

Slaves were at all times to be made subordinate to whites, and the southern legislatures and courts readily accepted this idea. As North Carolina’s Chief Justice Thomas Ruffin declared in State v. Mann (1829): “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.”

By 1860 almost all the states that would join the Confederacy had either prohibited manumission or made it extremely difficult. Most slave states made it a crime to teach a slave to read. In most of the South, circulating antislavery literature was a crime and, in the 1850s, the national best-seller Uncle Tom’s Cabin was banned. Slaves could organize their own worship services only if whites were present. Many of these restrictive laws were also applied to free blacks in the South—more than a quarter of a million by 1860.

Northern Law.

By 1830 slavery had disappeared in much of the North, although a few aging slaves could be found in Pennsylvania, New Jersey, Connecticut, and Illinois. In the three decades before the Civil War, northerners passed laws to protect their free black neighbors from kidnapping and gradually, although grudgingly, offered them some social, political, and economic rights.

Most Northern states passed personal liberty laws, designed to frustrate, where possible, attempts by southerners to reclaim fugitive slaves. Before Prigg v. Pennsylvania (1842) outlawed the practice, these laws granted jury trials to alleged fugitives. After 1842 northern states simply withdrew their support and refused to aid slave catchers.

Northern states also freed slaves taken into their states by visiting masters. In England in 1772, in Somerset v. Stewart the Court of Kings Bench in London ruled that if a master brought a slave into the country, the slave became instantly free. This ruling was part of the common law of the colonies at the time of the Revolution. In Commonwealth v. Aves (1836), the Supreme Judicial Court of Massachusetts held that slaves became free the moment they were brought into the North. But Southern states began to arrest free blacks who entered their jurisdictions. Before the 1830s about half the slave states did recognize the freedom of slaves who had lived in the North, but by 1860 only a few Southern states did so.

Slavery and National Law.

After 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. The Fugitive Slave Law of 1850 provided federal help to masters and harsh penalties for anyone interfering with the return of runaway slaves.

In 1808 Congress banned the importation of slaves. This was not necessarily an antislavery act, however. Many slave owners in Virginia and Maryland favored such a ban because it would increase the value of their slaves. Not until the Civil War did Congress and the executive branch effectively enforce the ban. Meanwhile, in The Antelope (1825) the Supreme Court upheld the legality of the international slave trade. In United States v. Amistad (1841) the Court ordered a group of slaves taken from Africa to be set free, but only because they had been illegally imported to Cuba in the first place.

In the Northwest Ordinance (1787) Congress banned slavery in the Northwest Territory. In the Missouri Compromise (1820) it banned slavery in all the western territories north and west of the southern boundary of Missouri. Congress modified this ban in the Compromise of 1850 to allow slavery in most of the territories ceded to the United States after the Mexican–American War. In the Kansas–Nebraska Act (1854) Congress repealed most of the ban on slavery in the west. This led to a mini-civil war in Kansas, in which Congress and the administrations of Presidents Franklin Pierce and James Buchanan consistently sided with slave owners.

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. Dred Scott was followed by 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 eleven slave states that seceded in 1860–61 did so to protect slavery from a national government controlled by Lincoln. As Confederate Vice President Alexander Stephens noted, slavery was “the cornerstone” of the Confederacy. The Confederate states maintained slavery almost exactly as it had been before the war, while the Confederate government violated accepted rules of international law by enslaving, or murdering, black U.S. soldiers captured in battle.

The nation effectively overruled Dred Scott during and after the Civil War. During the war, Congress banned slavery in the territories, abolished slavery 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 nation’s citizenry. Lincoln’s Emancipation Proclamation (1863) ended slavery everywhere in the Confederacy that U.S. troops entered. The final reversal of Dred Scott came with the adoption of the Thirteenth Amendment (1865), ending slavery everywhere in the United States, and the Fourteenth Amendment (1868), declaring that all people born in the United States were citizens of the nation and of the state in which they lived.See also Civil Rights and Civil Liberties; Race and Ethnicity; Segregation

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