Slavery was not recognized in English common law, but by the mid-eighteenth century, systems of slave law had been established through legislation and adjudication in each of Britain's North American colonies. Slave laws varied in each colony, but everywhere they supported slaveholders' property interests and the racial basis of slave society by denying the legal personality of the slave in civil cases and providing minimal protection for the humanity and due process rights not only of slaves but also free blacks.
In response to the great political, cultural, social, and ideological upheavals of the time, the law of slavery evolved throughout the late eighteenth and early nineteenth centuries. The most important changes were in criminal law, manumission, the regulation of free blacks, and the determination of racial identity. Despite the Revolutionary rhetoric of liberty and equality, changes to the law did nothing to undermine slavery in the southern states, and even in the North, where gradual abolition commenced in the 1780s, the law continued to deprive free blacks of basic civil rights.
When slaves charged with felonies against person and property appeared before legal authorities, they were treated very differently from whites by a justice system that was swift, severe, and paid scant regard to legal due process. In Virginia, slaves were not entitled to trial by jury like whites, but instead were examined, judged, and sentenced by a panel of justices of the peace in what were termed courts of oyer and terminer. There were few checks on the magistrates' discretionary decision-making power and no provision for verdicts to be appealed to a higher court. Yet during the colonial period, similar trial systems in which slaves were tried by magistrates and freeholders were established in other colonies, including South Carolina, North Carolina, Georgia, Louisiana, and Pennsylvania.
Virginia retained its oyer and terminer system until 1865, and South Carolina and Louisiana did not abolish their slave courts until the late antebellum era. However, in other states, particularly in the North and the Border South, there was a trend toward greater formalism in slave trials after the Revolution. Pennsylvania abolished special courts for slaves in 1780, and in the following decades Delaware, North Carolina, Tennessee, and Kentucky also provided for slaves charged with felonies to be tried by a jury and in the same courts as whites. Other states did not go so far in providing equal trial procedures for black and white felony defendants. Trial by jury was extended to slaves in Georgia in 1811; however, in contrast to white defendants who were tried in superior courts, slave trials took place in inferior courts until the 1850s. Meanwhile, a variation of the oyer and terminer system was established in Mississippi in the 1820s. In practice, the absence of common law due process in slave trials resulted in higher conviction rates for slaves than whites, although when slaves were tried in regular courts the proceedings were marked by a surprising degree of fairness, and appellate courts in particular often protected slaves' procedural rights.
The movement toward greater due process in slave trials was accompanied by changes in slave punishments. Although whipping and hanging remained commonplace, more extreme forms of physical punishment such as branding, maiming, castration, and burning at the stake gradually disappeared from the statute books in the early national period.
When slaves committed minor criminal offenses, they were usually punished informally and summarily by their owners, overseers, or slave patrols that policed slave conduct off the plantation. The functions of the patrols included searching for runaways and tracking stolen goods, and often they were empowered to enter both black and white properties without a warrant and to inflict summary punishment on slaves and free blacks. In southern cities, where many slaves lived and worked with a substantial degree of autonomy, the patrols were gradually replaced by municipal police forces in the nineteenth century. The specific content of municipal slave codes varied, but commonly urban slaves were prohibited from hiring themselves out, gathering together in groups, and moving about the city at night without a permit from their owner or employer. By the 1820s many cities held daily court sessions to ensure the rapid examination and punishment of slaves who flouted the municipal codes, but enforcement remained sporadic and did little to restrict slave autonomy. The public regulation of slaves also placed restrictions on whites who were required to serve on patrols and prohibited from selling liquor to slaves, aiding slave runaways, and marrying and engaging in sexual relationships with blacks, although this last prohibition was rarely enforced.
criminalizing the murder of a slave
In the colonial period, slaves had little legal protection from white violence, particularly when perpetrated by their owners. In Virginia and South Carolina, statutes protected slaveholders from prosecution for killing a slave through excessive punishment, and in the latter colony slave murder was not a capital offense when perpetrated by any free person. In other southern colonies the law regulating slave murder was uncertain or unclear. In practice, few slaveholders were ever prosecuted for slave homicide, although on rare occasions in mid-eighteenth-century Virginia, whites were executed for murdering another person's slave. In addition, slaveholders could sue for damages for nonfatal assaults perpetrated against their slaves.
From the late 1780s there was a gradual shift toward greater protection of slaves from white violence. In 1788 Virginia upgraded the killing of a slave during punishment from manslaughter to murder and most other southern states followed suit through legislation, constitutional provisions, or judge-made law by the early 1820s. However, in most states slaveholders remained exempt from prosecution if they killed a slave who had committed an act of resistance or insurrection, and it was rather nonslaveholding whites who were the primary target of the new legislation. Not only were nonslaveholders more often convicted for murdering slaves by the 1820s than they had been in the colonial era, they were also subject to criminal prosecution for nonfatal attacks on slaves. Rather than concern for slaves' humanity, therefore, these legal developments reflected the rising value of slave property and the growing threat to their slaves' life and labor that slaveholders perceived from nonslaveholding whites. Laws protecting slaves from murder or other harms, however, were limited by the fact that no slave or free black could ever testify against a white in the South.
The law placed few restrictions on the master-slave relationship, but the right of private manumission was limited by legislation. In early-eighteenth-century Virginia and North Carolina, manumission could only occur as a reward for public service and had to be approved by the governor and council. Similarly, South Carolina only permitted manumission as a reward for slaves who killed or captured an enemy "in time of alarms," and from 1722 slave-holders were required to provide means for freed slaves to leave the colony within twelve months of receiving their freedom. In 1735 the time allowed for departure from the colony was reduced to six months, and any former slave who returned within seven years could be reenslaved. Restrictions were also placed on manumission in some northern colonies. In Pennsylvania, for example, as in Virginia and Delaware, slaveholders had to post a bond for the good conduct of former slaves and to ensure that those who were unable or unwilling to work would not become a burden on the public purse. In Massachusetts, however, all blacks had the right to sue for their freedom.
After the Revolution, manumission laws were relaxed across the South. In Virginia, slaves under age forty-five could be granted their freedom by will or deed from 1782, and a similar policy was enacted in Delaware in 1787 and Maryland in 1790. However, as humanitarian and ideological concern with issues relating to African American liberty waned in the early nineteenth century, and as fear of the free black population increased at the same time, there was a renewed clampdown on manumission. In Virginia, for example, slaves freed after 1806 had to leave the state within twelve months on pain of reenslavement.
emancipation in the north
Laws were never passed specifically to establish slavery in the American colonies, but in the early national era the northern states used legal and constitutional means to bring about slavery's abolition. Vermont ended slavery by constitutional amendment in 1777, while in Massachusetts and New Hampshire, abolition proceeded gradually through judicial rulings and individual acts of manumission. In the mid-Atlantic states, legislation provided for the gradual abolition of slavery. In 1780 Pennsylvania passed an act for its gradual abolition, according to which all slaves born after 1 November 1780 would be freed on reaching the age of twenty-eight. Gradual emancipation laws were also introduced in Connecticut and Rhode Island in 1784, but in New York, where slavery was a more integral part of the economy, a similar law was not passed until 1799. The New York law stated that children born to slave parents had to serve their mother's owner until age twenty-five if female and twenty-eight if male. Children born under these conditions had to complete their period of service even after New York finally abolished slavery in 1827. The final northern state to legislate for gradual emancipation was New Jersey in 1804.
laws regulating free blacks
In the colonial period, free blacks held an ambiguous legal status. In many cases they were treated as slaves, but at times they were entitled to the rights of white citizens, including in some colonies trial by jury and the right to vote. In the southern states, where slavery was most entrenched, the growth of the free black population after the Revolution led to even greater restrictions on free blacks' legal rights, civil liberties, and freedom of movement. By the 1790s, only in North Carolina and Tennessee were free blacks permitted to vote and hold public office, while free black felony convicts were subject to similar corporal punishments as slaves in all states except Virginia and Maryland, where they were imprisoned alongside whites in the penitentiary. Throughout the South, free blacks were required to register at the local courthouse and carry papers attesting to their liberty. Legislation also prohibited free blacks from entering the states of Virginia and South Carolina, and in many states free blacks could be sold into servitude for offenses including defaulting on their taxes, vagrancy, and harboring a runaway slave.
Another threat to free blacks' liberty was South Carolina's Negro Seaman's Act. Passed in 1822 in response to Denmark Vesey's rebellion, the act required free black seamen on board ships entering South Carolina's ports to be imprisoned until their vessel departed. If the ship's captain refused to pay the costs of imprisonment or to remove a seaman from the state, the seaman could be sold into slavery. Under pressure from Britain and the northern states, the provision for enslavement was replaced within a year with a requirement that black sailors leave the state, but this policy was reversed in 1835 and similar legislation regarding black seamen was enacted in other Deep South states in the 1830s and 1840s.
In the northern colonies, too, the legal rights of free blacks were less than those of whites. In Pennsylvania, free blacks were tried in the same special courts as slaves, could be sold into slavery for marrying a white person, and were subject to corporal punishment for a wider range of criminal offenses than whites. In addition, free black children born after 1726 could be bound out for service until age twenty-one for women and twenty-four for men. With the introduction of emancipation legislation in Pennsylvania in 1780, free African American defendants were accorded the same trial rights as whites, but they continued to be denied other legal privileges, including the right to vote. Free blacks' rights were more extensive in New England, where the black population was smaller and abolition was enacted more swiftly after the Revolution than in other northern states. In Massachusetts, for example, the Declaration of Rights (1780) made all men eligible to vote and hold elective office irrespective of race.
Although race was central to the law of slavery in all of the American colonies, there was little agreement on how race as a legal concept should be determined. In Virginia the law was vague and changed over time. In the colonial era, a person with one-eighth African ancestry was defined as a mulatto, a category legally indistinct from black. Subsequently, the degree of "black blood" that signified mulatto status was raised to one-quarter, implicitly expanding the definition of whiteness. Statutes defining race in terms of fractions of black blood were enacted in all southern states except Delaware, Georgia, and South Carolina, but nowhere was it made clear what evidence was required to prove an individual's racial identity. In practice, therefore, determining who was black and who was white was never a simple task, and although courts never failed to assign an individual to a particular racial category, the process by which they did so was often inconclusive and revealed the fallacy of a simple division between black and white on which the law of slavery was based. Since the laws on slavery and race overlapped imperfectly, and with slave status determined by the mother, a person could—at certain times and places—be both slave and white. As with all aspects of the law of slavery as they functioned in practice, therefore, the determination of race at the local level articulated tensions between slaveholders' interests and the law of slavery that were not evident in the law as it stood on the statute books.
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Gross, Ariela J. "Litigating Whiteness: Trials of Racial Determination in the Nineteenth-Century South." Yale Law Journal 108 (1998): 109–188.
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Schwarz, Philip J. Twice Condemned: Slaves and the Criminal Laws of Virginia, 1705–1865. Baton Rouge: Louisiana State University Press, 1988.
Waldrep, Christopher. Roots of Disorder: Race and Criminal Justice in the American South, 1817–1880. Urbana: University of Illinois Press, 1998.