Slavery and the justice system

SIGNIFICANCE: Slavery defined the legal treatment of African Americans for two and one-half centuries. The crusade against slavery gave rise to modern concepts of citizenship and civil rights.

The first African laborers in the English colonies of North America arrived in Virginia in 1619. By the 1770s, slaves made up one-fifth of the population of the English colonies. At this time, slave labor was used in every colony, including those in the North. Only in the South, however, did slavery dominate economic life. Slaves were used primarily to grow staple crops such as tobacco and rice for exportation to Europe and the Caribbean.

Slavery and the Territories

As Americans moved westward, the issue of whether slavery should expand into the new territories became increasingly important. Americans realized that new western states would determine the balance of political power between North and South. Congress initially divided the new territories between North and South. In the Northwest Ordinance (1787), Congress banned slavery in the lands north of the Ohio River while implicitly accepting slavery south of the Ohio. In regard to the Louisiana Purchase, the Missouri Compromise of 1820 banned slavery north of the line 36° 30′ latitude while allowing slavery to exist south of the line. 

The Missouri Compromise resolved the issue of slavery in the territories until the Mexican-American War of 1846–1848 added new western lands to the United States. Subsequently, four positions emerged regarding the issue. Many northerners favored the Wilmot Proviso, a proposal to ban slavery in the territories. Other Americans favored popular sovereignty, which would allow the people of the territories to decide the issue for themselves. Some Americans favored extending the Missouri Compromise line to the Pacific coast. Many southerners believed the federal government should protect slavery in the territories. 

In the 1850s, the popular sovereignty approach gained ascendancy. The Compromise of 1850 applied popular sovereignty to California, New Mexico, and Utah. The Kansas-Nebraska Act (1854) repealed the old Missouri Compromise boundary and enacted popular sovereignty for the Louisiana Purchase. The Kansas-Nebraska Act created such great controversy that the existing political alignment was shattered. Opponents of the act created a new antislavery political party, the Republican Party, while supporters of the act reconstructed the Democratic Party as a proslavery party. 

Disagreements regarding slavery-related issues and sectional competition for political power led ultimately to the outbreak of the Civil War in 1861. During the war, northern military officials increasingly believed that freeing the South’s slaves would severely injure the Confederacy. President Abraham Lincoln issued the Emancipation Proclamation in 1863, proclaiming that the Union Army would henceforth liberate the Confederacy’s slaves. In 1865, the Thirteenth Amendment to the US Constitution freed all remaining slaves belonging to American citizens. 

Slavery and the US Constitution

Slavery significantly influenced the writing of the US Constitution. The Constitutional Convention of 1787 nearly broke up because of disagreements regarding sectional issues. Ultimately the sectional impasse was resolved with the Compromise of 1787. Direct taxes and representation in the House of Representatives were to be apportioned according to the three-fifths rule: All free people and three-fifths of the slaves were to be counted in determining a state’s tax burden and congressional representation. Congress could prohibit the importation of slaves into the United States after the lapse of twenty years. States were prohibited from freeing fugitive slaves, and slaveholders were given the right to cross state boundaries to recapture fugitives. Congress was prevented from taxing exports so that slavery would not be injured by excessive taxes on the products of slave labor. Finally, to ensure that the compromise would not be abrogated, the clauses regarding the international slave trade and the three-fifths rule were declared by the Constitution to be unamendable.

As the Civil War approached, Americans debated the significance of these actions. What was the relationship between the US Constitution and slavery? Before 1860, most Americans believed that the Constitution did not establish a federal right to own slaves. Slavery was thought to exist as a result of state laws, and the federal government was thought to have few constitutional powers regarding slavery. Northerners and southerners disagreed regarding the practical application of this idea. Southerners believed the federal government was increasingly intruding into matters related to slavery. They called for an end to federal interference with slavery. Northerners argued that the federal government had been indirectly providing protection to slavery for years. They called for the withdrawal of this protection. 

In the 1840s and 1850s, militants on both sides developed new constitutional theories regarding slavery. Some southerners claimed that there was a federal right to own slaves, established in the fugitive slave clause and the privileges and immunities clause of the US Constitution. The federal government, they said, must protect the right of citizens to own slaves in the territories. Some southern extremists argued that the federal right to own slaves was so comprehensive that even northern states could not outlaw slavery within their own boundaries. Ironically, the branch of the abolitionist movement led by William Lloyd Garrison agreed with this argument, claiming that the Constitution protected slavery and arguing that northern states should abandon this corrupt document by withdrawing from the Union. 

Another branch of the abolitionist movement, led by Gerrit Smith and William Goodell, argued to the contrary that the Constitution was best read as an antislavery document. They claimed that citizenship was based on residence in the United States and that slaves therefore were citizens. The privileges and immunities clause of the Constitution, they claimed, prevented both the states and the federal government from giving unequal treatment to citizens. The due process clause of the Fifth Amendment prevented citizens from losing their liberty without due process of law. Slavery violated these principles, and judges therefore ought to declare slavery unconstitutional. While this interpretation of the Constitution seemed extreme and utopian at the time, after the Civil War, the abolitionists’ constitutional ideas were incorporated into the Fourteenth Amendment. 

Fugitive Slave Laws

One of the most significant controversies regarding slavery involved fugitive slave laws. In 1793, Congress adopted legislation to enforce the fugitive slave clause of the US Constitution. The Fugitive Slave Act of 1793 allowed slaveholders to obtain warrants from either state or federal courts for the rendition of fugitive slaves. In the 1820s and 1830s, several states passed personal liberty laws to prevent state officials from assisting in the recapture process. In Prigg v. Pennsylvania (1842), the US Supreme Court upheld the constitutionality of personal liberty laws by ruling that the enforcement of fugitive slave laws rested entirely in the hands of the federal government. 

Without the assistance of state officials, slaveholders found that it was difficult to recapture their slaves. Southerners clamored for federal assistance. Congress responded by passing a new Fugitive Slave Act as a part of the Compromise of 1850. A new group of federal officials was created for the sole purpose of assisting slaveholders recapture slaves. State officials were forbidden to resist the rendition of fugitives. Even ordinary citizens could be compelled to serve in posses for the purpose of capturing fugitives. To prevent African Americans who were seized as fugitives from challenging their seizure, their legal rights, including the right of habeas corpus, were abolished. 

The Fugitive Slave Act of 1850 was met with strong opposition in the North. Hundreds of fugitives, and even some free African Americans, migrated to Canada to avoid seizure under the new law. Many northern communities formed vigilance committees to assist fugitives, and in a few cases northern mobs tried to rescue fugitives from the hands of government officials. 

One rescue in 1854 led to a conflict between Wisconsin and the federal government. This case is notable because Wisconsin, a northern state, used states’ rights arguments to challenge federal authority, a ploy normally used by southerners to defend slavery. Sherman M. Booth, an abolitionist, was arrested by federal marshals for participating in the rescue of a fugitive slave. The Wisconsin State Supreme Court twice issued writs of habeas corpus to free Booth from federal imprisonment and declared the federal Fugitive Slave Act to be unconstitutional. The US Supreme Court in Ableman v. Booth (1859) reasserted the primacy of federal over state law and the right of the federal government to enforce its own laws through its own courts. The Wisconsin court accepted this decision, now believing that it did not help the antislavery cause to promote the idea of states’ rights and nullification of federal law. 

Legal Treatment of Slaves

African laborers occupied an ambiguous status in the American colonies before 1660 because English law did not recognize the status of slavery. Some Africans were held as slaves; others were held as indentured servants, persons whose term of labor expired after several years. Indentured servants enjoyed certain additional legal protections since, unlike slaves, their physical bodies were not owned by their masters. After 1660, Virginia and Maryland constructed elaborate slave codes to establish the legal status of slavery. For the next two centuries, the vast majority of African Americans were slaves. 

In making and enforcing slave codes, Americans recognized slaves as both people and property. As property, slaves generally had few legal rights as independent beings. Slaves could not own property, enter into contracts, sue or be sued, or marry legally. Slaves had no freedom of movement. Masters could sell their slaves without restriction, and there was no legal protection for slave families against forced separation through sale. The status of slave children was inherited from their mothers, a departure from the traditional common-law doctrine that children inherited the status of their fathers. 

In some ways, the masters’ property rights in slaves were limited by compelling public interest. Most southern states made it difficult for masters to free their slaves on the theory that free African Americans were a nuisance to society. Most southern states also tried to prevent slaves from becoming a threat to society. State laws often required slaves to carry passes when traveling away from their masters’ homes. Laws in several states prohibited slaves from living alone without the supervision of whites. In all but two states, it was illegal for anyone to teach slaves to read or write. Some states banned the use of alcohol and firearms by slaves; others outlawed trading and gambling by slaves. Although these laws were primarily a burden to the slave population, they also restricted the manner in which masters could manage and use their property. 

Southern law codes occasionally recognized slaves as people as well as property. By the mid-nineteenth century, most states provided slaves with a minimal degree of protection against physical assaults by whites, although these laws were generally poorly enforced. All states outlawed the murder and harsh treatment of slaves. Although masters were occasionally put on trial for murder of their slaves, evidence suggests that most homicidal masters either received light sentences or were not punished. Laws protecting slaves against other forms of inhumane treatment (such as excessive beatings or starvation diets) were almost never enforced. In practice, masters could beat or starve their slaves with impunity. Battery of slaves by strangers was illegal and was often punished by southern courts. Rape of slaves by whites, however, was not illegal. Masters had the full legal right to rape their own slaves, although masters could charge other whites with criminal trespass for an act of rape without the master’s permission. 

Under the law, African Americans were assumed to be slaves unless they could prove otherwise, meaning that free African Americans were forced always to carry legal documents certifying their freedom. Many actions, including the use of alcohol and firearms, were illegal for slaves but not for whites. Penalties for crimes were generally more severe for slaves than for whites. For slaves, capital crimes—those for which death was the penalty—included not only murder but also manslaughter, rape, arson, insurrection, and robbery. Even attempted murders, insurrections, and rapes were subject to the death penalty. 

Despite the harshness of the law, actual executions of slaves were rare because even slave criminals were valuable property. State laws generally required governments to pay compensation to the masters of executed slaves. The fact that the labor of slaves was valuable meant that, in all states except Louisiana, imprisonment was rarely used as punishment for slave criminals. Instead, most penalties involved physical punishments such as whipping, branding, or ear-cropping, punishments which were rarely used against whites after the early nineteenth century. While southern courts did not give African Americans and whites equal treatment, the courts made some effort to be fair to slaves, probably because of the influence of wealthy slaveholders with an economic interest in the acquittal of their property. The proportion of slaves among those people accused of crime was about equal to the proportion of slaves in the population. Slaves appear to have been convicted at nearly the same rate as whites. Southern law codes also reflected the slaveholders’ interests. Many states required that slaves have access to counsel and protected them against self-incrimination and double jeopardy. Slaves, however, could not testify in court against whites, meaning that it was nearly impossible to prosecute crimes against slaves when African Americans were the only available witnesses. 

Jim Crow Laws: Slavery by a Different Name

In January 1863, President Abraham Lincoln signed the Emancipation Proclamation. This decree ended slavery in the areas of the Confederacy not under the control of the Union army. While many detractors pointed out that the Emancipation Proclamation did not free a single slave, the document was extremely significant in that it made the abolishment of slavery a central war aim of the United States. Early in the war, many citizens of the United States, including Lincoln, asserted that the objective of the country in going to war with the Confederacy was only to preserve the Union. The Emancipation Proclamation also hastened the end of the war as slaves, essential to the Southern economy for labor while its male members were engaged in fighting, began to escape en masse to Union forces.

The successful conclusion of the Civil War saw the swift passage of three amendments designed to terminate slavery in the United States forever and to establish voting rights for African Americans. These were termed the “Reconstruction Amendments.” The Thirteenth Amendment (1865) outlawed slavery, the Fourteenth Amendment (1868) established citizenship for former slaves, and the Fifteenth Amendment (1870) established the right of American citizens to vote regardless of race or color. Despite the promise of equal citizenship by the Reconstruction Amendments, new Southern governments worked to circumvent and reverse their impact. New legislation, termed “Jim Crow Laws” were enacted to maintain the previous environment of African American servitude in the absence of slavery. These laws were enacted to discourage, prevent, or terrorize African Americans from exercising their newly won right to vote. The impact of these laws was restrictive to the extent that they can be described as simply a new form of slavery.

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