Slavery and Race

American Eras

Slavery and Race

Sources

Peculiar Institution. The most significant federal slavery cases in the years after 1815 grew out of the deepening problem that some jurisdictions permitted slavery while others did not. Congress had prohibited American participation in the international slave trade as of 1 January 1808. All of the states north of the Mason-Dixon Line had abolished slavery since the Revolution, although the plans of gradual emancipation adopted in New York and New Jersey left some African Americans in bondage. The Northwest Ordinance had excluded slavery from the territories north of the Ohio River (now beginning to enter the Union as states), but the institution had taken root in the Southwest, and a conflict was

looming over the status of slavery in the Louisiana Purchase territory. Lord Mansfield’s seminal decision in Somerset’s Case (1772) provided the basic legal framework for addressing conflicts between jurisdictions that barred slavery and the increasingly peculiar jurisdictions that permitted it. Freeing a slave who had been brought to England, Mansfield had observed that the institution was “so odious, that nothing can be sufficed to support it, but positive law.” This presumption of freedom would remain central to American legal analysis of slavery issues, entering into politics in the Free Soil argument that the Constitution barred slavery from federal territories under the principle that “freedom is national; slavery is local.” The courts would ultimately be unable to resolve the politically volatile conflict between free and slave jurisdictions, but slavery cases did help to clarify the authority of natural law as a source of judicial rules.

International Slave Trade. American opposition to the Atlantic slave trade intensified after the War of 1812. Prodded by Secretary of State John Quincy Adams, Congress took action in 1818 and 1820 to enforce the prohibition of American participation in the trade. The result was increased conflict with Spain, Portugal, and the Latin American countries that continued to engage in the importation of slaves. In The Antelope (1825) the Supreme Court had to decide the fate of more than 250 African slaves taken by privateers from Spanish, Portuguese, and American vessels and loaded onto a Spanish ship that had been captured by the privateers, then seized by an American revenue cutter and brought into the port of Savannah. The governments of Spain, Portugal, and the United States all filed claims for the slaves; the Adams administration of course intended to free the captives pursuant to American law prohibiting the slave trade. In the similar case of La Jeune Eugénie (1822) Joseph Story had ruled as a circuit judge that American courts interpreting international law should not recognize claims by slaveholding nations because the institution violated natural law, an argument that William Wirt repeated before the Supreme Court (aided by Francis Scott Key, an active supporter of the antislavery American Colonization Society in the years since he composed “The Star-Spangled Banner”). In the lower court Justice William Johnson of South Carolina had given no weight to natural law and had ordered the division of the slaves of The Antelope among Spain, Portugal, and the United States. Chief Justice Marshall’s opinion for the Supreme Court in The Antelope sought to compromise between Story and Johnson. On the facts of the case Marshall favored the American claim to most of the slaves (who were freed and transported to Liberia) and acknowledged that slavery was “contrary to the law of nature.” But more important, he held that the slave trade was enforceable under the law of nations because it “remained lawful to those whose governments have not forbidden it.” Marshall’s approach not only left forty slaves to be awarded to Spain and ultimately sold into slavery in Florida, it eliminated the role of natural law as a basis for legal rules. His law of nations was based on national acts and established practices, not on abstract moral principles.

Mutinies. Two other international incidents drew attention to slavery as a violation of natural law but failed to change the judicial principles adopted in The Antelope, In The Amistad (1841) the Supreme Court, considered the case of African slaves who had mutinied on a Spanish ship bound for Cuba. After killing the captain the slaves ordered the surviving crew to set course for Africa. The Cuban purchasers complied during the day but steered toward the United States by night, hoping to reach the slaveholding South. After the ship wound up in Long Island Sound, the Cubans sought to recover the slaves. Former president John Quincy Adams helped to represent the Africans before the Supreme Court, which in an opinion by Story found that no evidence had been presented that the Africans were slaves. The Creole incident of 1842 similarly involved a slave mutiny, this time on an American ship diverted to the Bahamas, where the slaves were freed by British law. After Daniel Webster, secretary of state in the proslavery administration of John Tyler, demanded compensation for the lost property, antislavery Congressman Joshua Giddings submitted a resolution calling for application of the Somerset principle that the mutineers ceased to be slaves when they reached free soil. The incident resulted in no litigation, but the controversy over Giddings’s Creole resolutions contributed to the end of the gag rule that had banned the introduction of antislavery initiatives in the House of Representatives.

Fugitive Slaves. More explosive than the international cases were conflicts over slaves who escaped to the free states. Representing alleged runaway Matilda Lawrence in Ohio in 1837, abolitionists James G. Birney and Salmon P. Chase argued that the Fugitive Slave Act of 1793 was unconstitutional, in part because it failed to provide adequate procedural protections for African Americans. The Ohio court upheld the act, as would the Supreme Court would a decade later in Jones v. Van Zandt (1847), and Matilda Lawrence was sent down the river for sale in New Orleans. But the widely publicized case contributed to a growing resistance to the Fugitive Slave Law. Several northern states had already passed “personal liberty laws,” providing for jury trials and the writ of habeas corpus for fugitive slaves. The Supreme Court assessed the validity of these laws in Prigg v. Pennsylvania (1842). The seven different opinions filed by the justices made it difficult to find common threads beyond an endorsement of the constitutionality of the Fugitive Slave Act of 1793. The most frequently cited opinion, by Story, concluded that states could not enact laws to determine the methods for enforcing federal legislation, thereby invalidating the Pennsylvania personal liberty law at issue. Story attempted to make the ruling an antislavery victory by reasoning further that states could bar sheriffs, judges, and other officials from aiding in the enforcement of federal law. The main consequence of the confusion left by Prigg, however, was a southern desire for a stronger law that ultimately led to the Fugitive Slave Act of 1850.

A COVENANT WITH DEATH

Alluding to Isaiah 28:15, abolitionist William Lloyd Garrison declared in January 1843 that “the compact which exists between the North and the South [i.e. the Constitution] is ’a covenant with death and an agreement with hell’—involving both parties in atrocious criminality—and should be immediately annualled.” Garrison and his allies Wendell Phillips and Maria Weston Chapman explained their reading of the Constitution in a statement of the American AntiSlavery Society in 1844:

The American Constitution is the exponent of the national compact. We affirm that it is an instrument which no man can innocently bind himself to support, because its anti-republican and anti-Christian requirements are explicit and peremptory;—at least, so explicit that, in regard to all the clauses pertaining to slavery, they have been uniformly understood and enforced in the same way by all the courts and by all the people; and so peremptory that no individual interpretation or authority can set them aside with impunity. It is not a ball of clay, to be moulded into any shape that party contrivance or caprice may choose it to assume…. It means precisely what those who framed and adopted it meant —NOTHING MORE, NOTHING LESS, as a matter of bargain and compromise. Even if it can be construed to mean something else, without violence to its language, such construction is not to be tolerated against the wishes of either party. No just or honest use of it can be made, in opposition to the plain intention of its framers, except to declare the contract at an end, and to refuse to serve under it.

Source: Wendell Phillips Garrison, William Lloyd Garrison, 1805–1879, four volumes (Boston: Houghton, Mifflin, 1894), III; pp. 88, 107.

Resistance. The attempt of a Virginia slave owner to retrieve George Latimer from Boston in 1843, the most important fugitive slave controversy before midcentury, helped to turn some opponents of slavery from legal strategies to civil disobedience. Protests against the slave owner’s claim dominated the 1843 session of the Massachusetts legislature, culminating in the passage of a personal liberty law along the lines suggested by Story in Prigg v. Pennsylvania. Although Chief Justice Shaw rejected abolitionist appeals for the release of Latimer, the legal expenses mounted to the point that the slaveholder eventually agreed to sell his rights to the Latimer Defense Committee, which immediately freed the fugitive. The incident prompted William Lloyd Garrison and his followers to adopt a more radical course: they now denounced the Constitution as “a covenant with death” and called for the breakup of the Union. While Garrisonian abolitionists continued to profess non-violence, a convention of African Americans meeting in Rochester, New York, resolved that the Latimer case called for forcible resistance to the fugitive slave law.

Race in the North. Paralleling the intensified attack on slavery was increased controversy over the civil rights of African Americans in the North. In two major cases the courts did little to advance racial equality. Pennsylvania chief justice John Bannister Gibson, one of the leading members of the American bench, ruled in Hobbs v. Fogg (1837) that African Americans could not vote in Pennsylvania because a black person was not a “freeman” within the meaning of the state constitution. Acknowledging that the decision reflected his own racial bias, Gibson cited no precedent or other legal authority in support of this judicial disfranchisement. Revision of the state constitutional convention soon ratified his decision, however, by expressly limiting suffrage to whites. Similarly, the distinguished Massachusetts judge Lemuel Shaw upheld the racial segregation of Boston public schools in Roberts v. City of Boston (1849). In an argument that anticipated by more than a century the rationale of Brown v. Board of Education (1954), Charles Sumner had argued that segregation intrinsically violated the guarantee of equality under the state constitution and imposed a psychological burden on schoolchildren. Shaw concluded instead that the legislature was authorized to determine the meaning of equality. Following the sharp escalation of the sectional conflict in the next few years, Massachusetts enacted a statute that prohibited racial segregation in schools.

Southern Law of Slavery. As a fundamental social and economic institution, slavery posed a constant stream of legal problems to southern state courts. What judicial process was required for slaves charged with criminal offenses? Were masters liable for accidental damage caused by their slaves, as an employer was liable for the negligence of an employee? Did the law afford slaves any protection whatsoever from abuse? Could a slaveholder’s will bequeath unborn children? The conflict between slaves-as-people and slaves-as-property was inescapable—even the enforcement of a pure property concept, like the foreclosure of a mortgage in slaves, could have intensely human consequences in the breakup of a family sold not voluntarily, but by a court or sheriff to satisfy the master’s debts. Southern courts and legislatures elaborated the law governing slavery, but even then the formal law was not always an accurate guide to the way things really worked. For example, with the enactment of new laws in Georgia, South Carolina, North Carolina, and Alabama between 1816 and 1821, almost all southern states provided for punishment for the murder of a slave. In practice, however, few homicides of slaves were prosecuted. Those that were ended in acquittals or (in the most repellent cases) verdicts of manslaughter, which carried a much lighter penalty. The artificiality of the law of slavery was a reflection of the ways in which white Southerners struggled to reconcile the contradictions of the peculiar institution.

THE POWER OF MASTERS OVER SLAVES

When John Mann shot a rented slave in the back for running away to avoid a beating, he was convicted of battery, In State v. Mann, 2 Dev. (13 N.C.) 229 (1829), the North Carolina Supreme Court reversed the conviction; Thomas Ruffin’s opinion for the court held that “the slave, to remain a slave, must be made sensible, that there is no appeal from his master,” and revealed the brutal reality of slavery:

[A]rguments drawn from the well established principles which confer and restrain the authority of the parent over the child, the tutor over the pupil, the master over the apprentice, have been pressed on us. The Court does not recognize their application. There is no likeness between the cases. They are in opposition to each other, and there is an impassable gulf between them. The. difference is that which exists between freedom and slavery—and a greater cannot be imagined…. [The slave’s] obedience is the consequence only of uncontrolled authority over the body. There is nothing else which can operate to produce the effect. The power of the master must be absolute, to render the submission of the slave perfect. I most freely confess my sense of the harshness of this proposition. I feel it as deeply as any man can. And as a principle of moral right, every person in his retirement must repudiate it. But in the actual condition of things, it must be so.—There is no remedy.

Sources

Harold M. Hyman, and William M. Wiecek, Equal Justice Under Law: Constitutional Development, 1835–1875 (New York: Harper & Row, 1982);

Thomas D. Morris, Southern Slavery and the Law, 1619–1860 (Chapel Hill: University of North Carolina Press, 1996);

John T. Noonan, The Antelope: The Ordeal of the Recaptured Africans in the Administrations of James Monroe and John Quincy Adams (Berkeley: University of California Press, 1977).

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