Exclusion Laws

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Exclusion Laws

The institution of slavery in America was governed by laws designed to regulate and define the rights of the oppressed. Slave laws often stemmed from the sentiments of the slave owners, who developed an inherent fear of emancipation and its consequent negative social and economic effects on society. Likewise, slave owners sought to have a means for judicial control of their slaves, which firmly supported their position in the "Master Class." Tailored to the slaves alone, slave laws did not necessarily pertain to others outside of their situation. Ultimately, slave owners needed slave laws to prevent servile insurrection or other forms of resistance. Hence, as slavery matured from its colonial genesis, so too did the exclusion laws that shaped it as an institution.

As one historian notes, "slavery was legal in all of the thirteen colonies when the American Revolution began." Intrinsically linked to the foundation of America, slavery was legally protected by the constitution (the word slavery is not mentioned by word, instead using circumlocutory terms such as "other persons" or "such persons"). The framers of the constitution permitted slavery on the federal level and delegated the responsibility of creating and imposing more specific laws to the individual states. It was in the houses of state congresses and in the state supreme courts where most slave laws were enacted, which consequently created a conflict between those states that supported slavery as an institution and those who prohibited it.

Proslavery states viewed slavery as a social, political, and economic institution that had to be preserved and protected. The clash between humanitarian and economic interests drove many lawmakers to question their modes of thought when attempting to form the foundation of a stable, reliable framework for producing legal doctrines. Slaves were considered property, not people, forcing many lawmakers to protect the property rights of the slave owners, instead of advocating the humanitarian interests of the slave. To illustrate, Act 38 of the 1705 Virginia Slave Code noted that for every slave put to death by the state for "incorrigible behavior, the state would, in pursuance of this act, or put to death by law, the master or owner of such slave shall be paid by the public."

In many states, newly imposed slave laws were taken from other legal areas or from isolated cases that could be used in the universal context. For example, in 1791 a free black man named John was kidnapped from his home in Pennsylvania and taken into Virginia where he was sold into slavery. Yet, John was a fugitive slave who absconded to Pennsylvania to become free. Although he was the property of Virginia slave owners, he reached free soil and could not be extradited. The ensuing legal battle over John created enough conflict between Pennsylvania and Virginia that President George Washington called upon Congress to create federal laws relating to fugitive slaves. This case served as the cornerstone of the Fugitive Slave Act of 1793.

As well, early slave laws "borrowed" their verbiage from other colonial societies, then modifying them to suit the interests of the slave owners. As historian David Gaspar noted, "slave societies pieced together their slave laws by drawing selectively upon the English precedent or principles of the law." South Carolina, for example, based its original slave codes on those of the island of Barbados, but slightly changed them to satisfy the conditions of the local planters. The first slave laws in South Carolina were enacted in 1690, when an assembly consisting of former Barbadians legally defined slaves as "freehold property," a term commonly used in the Caribbean to describe slaves terminally confined to a particular piece of land. Other slave codes were passed by South Carolina legislators, who in 1696 agreed that the state needed slave laws because their blacks had "barbarous, wild, and savage natures."

While most areas of the South based their slave codes on the British, Louisiana based its codes from a combination of the French Code Noir and the Spanish Las Siete Partidas (as was their colonial legacy). The result was the Black Code of 1806, which set about "prescribing the rules and conduct to be observed with respect to Negroes and other Slaves" in Louisiana. It prohibited slaves from such acts as carrying weapons, selling plantation goods, being on the open road without a permission slip, obtaining liquor, going on horseback, and holding property. Legal doctrines similar to the Louisiana Black Code were enacted in all slaveholding states, greatly limiting the freedom of the slaves to exercise free will. Intriguingly, Section 10 of the 1806 Black Code states that "slaves shall always be reputed and considered real estates, shall be, as such, subject to be mortgaged, according to the rules prescribed by law, and they shall be seized and fold as the real estate." The concept of slaves being property served to dehumanize them, making them more of a slave owner's possession than an individual person.

Because they were considered property, several states deemed that slaves could not legally marry, nor have legitimate families in the eyes of the law. As one judge stated, "A necessary consequence of slavery is the absence of the marriage relation. No slave can commit bigamy, because the law knows no more of the marriage of slaves than of the marriage of brutes. A slave may, indeed, be formally married, but so far as legal rights and obligations are concerned, it is an idle ceremony." Masters especially forbid marriage between a slave and a free black. One ex-slave noted that, "When I asked my master's consent to our marriage, he refused to give it, and swore that he would cut my throat from ear to ear before I should marry a free nigger." While it was outside the bounds of jurisprudence for slaves to marry in many states, it was often welcomed by planters on their own plantations, who sought to expand the size of the slave population.

Another law that was strictly enforced on slaves was their right to an education. A Virginia code of 1819 stated "that all meetings or assemblages of slaves, or free negroes or mulattoes mixing and associating with such slaves at any meeting house or houses, in the night; or at any SCHOOL or SCHOOLS for teaching them READING or WRITING, either in the day or night, under whatsoever pretext, shall be deemed and considered an UNLAWFUL ASSEMBLY." Other states had similar laws. In North Carolina in 1831, a person who gave a slave a book could be punished by "thirty nine lashes or imprisonment if the person a free negro; but if a white then a fine of $200." Masters believed that reading empowered slaves to fight against slavery, which was validated in the words of one ex-slave who stated "But the more I read, the more I fought against slavery."

Further, in all Southern states except Louisiana, slaves could not take legal action against their masters. Historian William Goodell noted in 1853 that "A slave cannot be a party before a judicial tribunal, in any species of action against his master, no matter how atrocious may have been the injury which he has received from him." In 1836 ex-slave Moses Roper noted that, after witnessing the murder of a slave, the "case was brought to trial; my then master, Mr. Gooch, was on the jury. The evidence of the two white men was taken, and [the defendant] was adjudged to pay the value of the slave he had destroyed." Since no slaves could testify, the white planters offered the only evidence. Further, Roper states that "I could report a multitude of cases in which slaves have been murdered and no account has been taken of them."

A major exclusion law that agonized slaves was their restrictions on holding any property or having any possessions. Since slaves were slaveholder property, they could not possess anything of their own. Indeed, their possessions were the possessions of the master, including children. As a Virginia lawmaker once stated, "the owner of land has a reasonable right to its annual produce, the owner of brood mares to their products, and the owner of female slaves to their increase." Ex-slave Solomon Northup witnessed the break up of a slave family on the auction block, an act that was completely legal. Northup notes that the slave mother "kept on begging and beseeching them, most piteously, not to separate the three. Over and over again, she told him how she loved her boy." Unfortunately, the slave buyer did not have enough money for the family and only bought the child.

The numerous laws that regulated slavery dehumanized their subjects, rendering them only slightly better than chattel property. As slavery changed over its many years in America, a parallel shift occurred in its legal regulation. The laws defined the slaves, consequently prolonging the institution of slavery by limiting the freedoms a slave could have and restricting their rights to a minimum.

BIBLIOGRAPHY

Blassingame, John W., ed. Slave Testimony: Two Centuries of Letters, Speeches, Interviews, and Autobiographies. Baton Rouge: Louisiana State University Press, 1977.

Fehrenbacher, Don E. Slavery, Law, and Politics: The Dred Scott Case in Historical Perspective. New York, Oxford University Press, 1981.

Finkelman, Paul. "The Kidnapping of John Davis and the Adoption of the Fugitive Slave Law of 1793." The Journal of Southern History, vol. 56, no. 3 (Aug., 1990).

Finkelman, Paul. Slavery and the Founders: Race and Liberty in the Age of Jefferson, 2nd ed. New York: M.E. Sharp, Inc., 2001.

Goodell, William. The American Slave Code. New York: Arno Press, 1969.

Hening, William Walter. The Statutes at Large; Being a Collection of all the Laws of Virginia, from the First Session of the Legislature in the Year 1619. New York: R & W & G. Bartow, 1823.

Osofsky, Gilbert, ed. Puttin on Ole Massa: The Slave Narratives of Henry Bibb, William Wells Brown and Solomon Northup. New York: Harper & Row, 1969.

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Tomlins, Christopher, and Bruce H. Mann, eds. The Many Legalities of Early America. Chapel Hill: University of North Carolina Press, 2001.

Tushnet, Mark V. The American Law of Slavery 1810–1860: Considerations of Humanity and Interests. Princeton, NJ: Princeton University Press, 1981.

Wiethoff, William E. A Peculiar Humanism: The Judicial Advocacy of Slavery in High Courts of the Old South, 1820–1850. Athens: University of Georgia Press, 1996.

                                     Matthew Mitchell