The American Constitution does not mention slavery until 1865, with the adoption of the Thirteenth Amendment, which abolished the institution. Yet the Constitution, written in 1787, is riddled with provisions tied to slavery which protected it without naming it. The goal of this chapter is relatively modest: to examine how the US Constitution and the Supreme Court ‘understood’ what slavery was and how the Court defined it. I begin by exploring how seventeenth-century Englishmen in colonial Virginia developed a legal system to accommodate and perpetuate slavery within a common law regime that was essentially hostile to human bondage. The colonial lawmakers had to develop rules to balance the tension between treating Africans and others as persons held to labor and as property owned by other people. This colonial background sets the stage for understanding how the framers at the Constitutional Convention in 1787 protected slavery in law. Next, I examine how the US Supreme Court came to define slavery through its jurisprudence. A constant theme of this discussion is how the legal system balanced the dual status of slaves as ‘people’ and as ‘property’.
The Spanish and the Portuguese, who first settled the New World, had well developed slave cultures at the time of the first voyage of Columbus in 1492. Not surprisingly they brought concepts of slavery with them and quickly established the institution.1 Ironically, the first trans-Atlantic slave trade went from west to east, when Christopher Columbus sent 500 Carib Indians to Spain in 1495.2 Spaniards already held Turks, Arabs, Africans, and others as slaves, and would initially enslave Indians in the New World. When the Indians died off in large numbers due to disease, overwork, and brutality, the Spanish brought Africans into their new colonies.
In addition to experience with slaveholding, the Spanish and Portuguese legal culture, based on Roman law, allowed for the quick creation of not only slaveholding, but of a system of slavery.3 Roman law defined slavery as ‘an institution of the law of nations by which … a person is subjected to the dominion of another’.4 According to Justinian, ‘the principal distinction in the law of persons is that all men are either free or slaves—there is no third, intermediate, category in Roman law’.5
At the beginning of the sixteenth century, slavery as an institution did not exist in France,6 and there was a long tradition of emancipating slaves who entered the country.7 But, at the same time, there had always been some slaves in France and France’s legal culture provided some institutional support for slavery. France did not wholly adopt Roman law, but French lawyers and judges regularly turned to Roman law. France’s code-based system of law also meant that legal change could be quickly accomplished. Concepts of slavery in Roman and Canon law meant that the legal principles on which slavery was based were not entirely foreign to France. Thus it was possible for French settlers to establish slavery in the early seventeenth-century Caribbean, and for the government in Paris to regulate slavery in the colonies with the introduction of the Code Noir in 1685. Indeed, the Code Noir was created at the behest of the King, which illustrates how easily France accepted slavery as a legal concept.8 In 1716 French legislation explicitly allowed masters to bring slaves to France, under some limited circumstances, even as it also provided for the freedom of slaves brought to the metropolis contrary to the law.9 These laws illustrate how smoothly France, a nation which prided itself on not having slaves, adapted to slavery. Its Roman, Civil, and Canon law traditions made these legal developments possible.10 Other Continental powers—the Dutch, Swedes, and Danes—were likewise able to draw on Roman law traditions to establish slavery in their New World colonies, even though there was no slavery in the metropolis.
Unlike other New World settlers, the English had neither a law of slavery nor a tradition of slavery. The English, who arrived in Jamestown in 1607, came from a place where the legal institution of slavery was a relic of the past.11 Moreover, when the English came to Virginia they saw themselves as potential liberators of the Indians and slaves, who were under the domination of the Spanish.12 Thus slavery, as a system of property ownership or labor exploitation, was truly foreign to England. The English had nothing in their legal structure that recognized slavery or property in human beings. Eventually England would make huge profits from the African trade and its sugar colonies; members of the royal family would be among the first to invest their private money in the Royal Africa Company, thus profiting from the slave trade to the Americas. But in England slavery was never legal. Neither the monarchy nor Parliament would ever attempt to authorize the writing of a slave code for the colonies, as Louis XIV had with the Code Noir of 1685. Parliament would never pass a law, as France did in 1716, to specifically allow masters to bring slaves to the metropolis. However, the British courts did recognize the status of slaves in the colonies and use common law and commercial law concepts to enforce sales contracts or marine insurance policies involving the buying, selling, and shipment of African slaves. But at no time would Parliament, the Crown, or the courts ever create laws or precedents to allow slavery in the metropolis or to govern slavery in the colonies. Slavery in the British Empire would be governed by local laws, haphazardly passed by colonial legislatures or developed by colonial courts responding to specific events and cases. This would lead to a complicated legal structure for slavery in the colonies and later in an independent United States of America.
In 1619, in what would later become part of the United States, Dutch traders sold about twenty Africans to Virginia authorities. At the time this was England’s only New World colony. Virginia was the first British mainland colony to establish slavery, and the rules developed there eventually spread to the other mainland colonies. Virginia would become the largest British colony and the most important of the thirteen that would eventually come to form the United States. From the seventeenth century until the United States Civil War, Virginia continued to maintain the largest slave population on the North American continent.
The first Africans in Virginia were treated as indentured servants, held for a term of years, and then eligible for freedom. ‘Antonio a Negro’ came to Virginia in 1621, and was listed as a servant. He later became free, changed his name to Anthony Johnson, and ultimately accumulated land, held whites as indentured servants, and would later own a black slave.13 The earliest legal records of Virginia illustrate a confusing process. Some Africans were held in lifetime servitude; others were free. In 1640, John Punch was famously sentenced to a lifetime servitude for running away while the same year, less famously, another African received no additional service for running away.14 By contrast, no European was ever sentenced to lifetime servitude for running away. Punch’s case indicates that by 1640 the leaders of Virginia viewed Africans as ‘enslaveable’, and were gradually and inconsistently imposing that status upon them. This process was slow, until the legislature began to codify slavery and give masters security in their ownership of slaves. A decision a year after John Punch was sentenced to lifetime servitude illustrates the haphazard nature of slavery at this time. In 1641, the general court allowed John Graweere ‘a negro servant unto William Evans to purchase the freedom of his son who was born to a black woman belonging to Lieut. Robert Sheppard’, another planter. Whether Graweere was a slave or an indentured servant is unclear, as is the status of the woman who bore his child. But the status of the child was unambiguous. After Graweere ‘did for his said child purchase its freedom’ the court ordered that ‘the child shall be free’.15
The uncertain status of Africans in early Virginia continued into the 1670s. Thus, in 1672, the Virginia General Court determined that ‘Edward Mozingo, a Negro man, had been and was an apprentice by Indenture’ had served out his indenture, and thus the Court ordered ‘the said Edw: Mozingo be and Remayne free to all Intents and purposes’.16 A year later, the Court ruled that ‘Andrew Moore A Servant Negro’ had served out his indenture and would henceforth ‘bee free from his said master’, and that his master had to give him freedom dues of ‘Corne and clothes According to the Custom of the Country and four hundred Pounds’ of tobacco.17 These, and other scattered court records, illustrate that the status of Africans was uncertain in early British Virginia. The rules were unclear and there was no certain definition of who was a slave.
In the 1640s—before slavery had emerged as an institution in Virginia—the colonial legislature, the House of Burgesses, tackled complex questions of servitude and status. The House of Burgesses was elected by the landowners and dominated by the emerging planter class. Their legislation reflected their class interest in controlling the colony’s laborers, white and black. From the 1640s through the 1680s, the Burgesses struggled to secure their growing investment in Africans, but at no time was the legislature able to create a certain and clear definition of slaves.
The Militia Act of 1639–40, recognized the colony’s growing African population, but did not treat them as slaves. This Act required that all white males, including servants, be provided with arms for militia service. However, the law exempted ‘negroes’ from this mandatory rule.18 The law did not preclude arming blacks to help defend against Indian attacks, but simply did not require it. This law may have reflected the fear of arming Africans, who were in Virginia against their will, and presumptively hostile to those who controlled their labor. Three years later the Burgesses adopted legislation to treat African females as tithables, just as European and African men were treated. Tithes were taxes levied on people—not property—who contributed to the economy. European women had not been tithables because the law presumed they worked inside the home and were not producing wealth. This law by contrast assumed that African women worked in the fields, alongside men of various races, and thus were tithables. This may have been an example of race discrimination, but more likely it was simply recognition that African females were usually used as agricultural workers, just as men were, and should be taxed accordingly.19 This analysis is supported by subsequent legislation, twenty years later, taxing white women servants at the same rate as male servants and black female servants, if their ‘common imployment is working in the crop’.20 Significantly, the law taxing African women as well as African men did not see Africans as ‘property’, but rather as members of the community, just like white men of all classes, including both Burgesses and indentured servants.
A 1657 statute regulating runaways also illustrates the lack of any formal recognition of slavery before the 1660s.21 This law punished runaway servants, who were overwhelmingly European at this time, by extending their service and branding them. However, these statutes did not provide any particular rule for slaves. In the same legislative session the Burgesses regularized the length of service for servants ‘brought into this collonie without indentures or covenants to testifie their agreements’. The law provided that anyone under sixteen years of age would serve until age twenty-one, and anyone sixteen and older would serve for just four years.22 This would have applied to almost all Africans brought into the colony, as well as many Europeans. The Burgesses clearly did not anticipate that they would soon be treating Africans as lifetime slaves, rather than short-term servants.
In 1659–60, a Virginia law recognized slavery for the first time, although without defining it. The law provided ‘That if the said Dutch or other forreigners shall import any negro slaves, They the said Dutch or others shall, for the tobacco really produced by the sale of the said negro, pay only the impost of two shillings per hogshead, the like being paid by our owne nation’.23 By this time slaves were seen as commodities being imported into the colony. This was the first clear statement that Africans in new British colonies were considered ‘things’ or property, rather than persons.
But of course, Africans were persons, many of whom resisted their New World bondage. Most commonly they ran away. This created a new problem. The standard punishment for runaway servants, as set out in the 1657 statute mentioned above, was whipping (and sometimes branding) followed by additional time of service beyond their indenture. But a slave could never have additional service added to his bondage; thus, in 1661, the Burgesses passed its first police regulation of slaves, dealing with the problems of European indentured servants escaping with slaves. To discourage such interracial challenges to the regime, the law provided that Europeans would have to serve extra time for any slaves who ran away with them. The new law declared:
in case any English servant shall run away in company of any negroes who are incapable of making satisfaction by addition of a time, it is enacted that the English soe running away in the company with them shall at the time of service to their owne masters expired, serve the masters of the said negroes for their absence soe long as they should have done by this act if they had not beene slaves, every christian in company serving his proportion; and if the negroes be lost or dye in such time of their being run away, the christian servants in company with them shall by proportion among them, either pay [four] thousand five hundred pounds of tobacco and caske or [four] yeares service for every negroe soe lost or dead.24
This law not only provided compensation for masters whose slaves ran away with whites, but also drove a wedge between African slaves and European servants.25 The colonial legislators hoped this law would discourage interracial cooperation and lead it fewer escapes.26
The law helped divide European servants and African slaves, strengthened planter power, and more firmly attached the chains of lifetime bondage to Africans in the emerging system of slavery. The law also unambiguously acknowledged and affirmed that some ‘negroes’ in Virginia were ‘incapable of making satisfaction by addition of time’ because they were slaves. But, despite this explicit acknowledgement of slavery in the colony, the law did not help define who could be a slave. In fact, the language of the statute confused the issue.
The law initially referred to any ‘English servant’ who might escape with ‘any negroes’ who were incapable of having time added to their servitude. This language implied that some Africans had this status, but that others did not have such a status. All Africans in the colony were clearly not slaves. While being a ‘negro’ was clearly a marker of being a slave, all ‘negroes’ were not slaves. The use of the term ‘English’ was also unclear, since at the time there were white indentured servants who were Irish, Scottish, Dutch, and probably other nationalities as well.27 But the legislation surely applied to them. Further confusion comes from the use of the term ‘christian’, providing that if a slave ran away with other servants ‘every christian in company’ would serve extra time for the loss of the slave’s time. This may have implied that Christians could not be slaves, and thus conversion might emancipate a slave. Or it may have implied that the non-Christian status of Africans justified their enslavement. It would take a few years for the Burgesses to clarify this.28
Before the Burgesses could deal with how religion helped define slavery, the Virginia legislators faced a more pressing problem: how to classify the offspring of white men and African women. Under English common law a child, even one born out of wedlock, followed the status of the father. If this rule applied in the children of slaves, then the mixed-race children of slave women would be born as free people. This would lead to the situation of slave mothers raising their free-born children, while also creating a class of free mixed-race people. The leadership in Virginia was troubled by both of these possibilities. In addition, since these slave women would not have been legally married to the fathers of their children, their mixed-race children would have been legally bastards. Under existing law, the Overseers of the Poor were obligated to help raise and educate all illegitimate children. Furthermore, authorities were obligated to track down the fathers of all bastard children, to make sure they supported them. Applying these rules to the mixed-race children of slave women would lead to huge social problems, as masters—and leaders of the community—might be prosecuted for illicit (and sometimes adulterous) sex with their own slaves.
On the other hand, if the colony abandoned the common law, and instead adopted the Roman law rule of partus sequitur ventrem, these problems would disappear. This was the legal rule applied to livestock and other domestic animals: that the offspring of a domestic animal belonged to the owner of the female who gave birth.29 Treating slave women as property and reducing their status to that of domestic animals resolved some tough legal issues, and at the same time had the added virtue—if the word applies here—of benefiting white men, who could now freely prey on slave women without fear of legal consequences. Any children resulting from such encounters would be slaves, belonging to the owner of the mother. Thus, the local authorities do not need to institute bastardy proceedings against the father because society would not be required to maintain or support the illegitimate child. Maintenance would be the responsibility of the owner of the mother, who would benefit from the birth of a new slave. When subsequent statutes prohibited blacks from testifying against whites, the entire issue was taken out of the legal culture—there could never be bastardy proceedings or any rape prosecutions involving slave women because they could never be a complaining witness. There would only be more slaves, albeit mulatto slaves.
In a society with a huge gender imbalance, with far more men than women, this law was a great benefit to white men. Thus, in 1662 the white men in the House of Burgesses wrote a statute with far reaching implications: ‘WHEREAS some doubts have arrisen whether children got by Englishmen upon a negro women should be slave or ffree [sic], Be it therefore enacted … that all children borne in this country shall be held bond or free only according to the condition of the mother …’.30 This law left slave women vulnerable to all white men, because the law simply would not take notice of sexual activity that resulted in mixed-race children of slave women. Masters had free sexual access to their slaves without legal sanction. Non-slaveowners could, in theory, face a trespass suit from a master of a slave woman for having sex with her, but no such lawsuits appear to have been filed. This law helped define slaves, by denying a slave woman the right to control her body or have any control over her children. (Slave fathers similarly had no control over their children.) The law also led to a particularly disgraceful aspect of American slavery which would continue until final abolition: masters would be the owners of their own children fathered with slave women and would treat them as property, to be bought, sold, used as collateral, and gifted. This law reduced the children of all slave women to property and, perversely, led generations of white southern men to treat their own children as property.31
Five years after dealing with the status of the children of slave mothers, the Burgesses returned to the issue of slavery and religion. From the first arrival of Africans, Virginians had been troubled by the interrelationship of religion, race, ethnicity, and status. Early statutes often made a distinction between Africans or Negroes and ‘christians’. One early justification for enslavement was that Africans were not Christians. But, at the same time, another justification for the African slave trade was that it brought Christianity to Africans. Tied to this was a belief, among some Europeans, that it was wrong to enslave fellow Christians, and that conversion should lead to emancipation. Some slaves apparently gained their freedom through conversion. However, in 1667 the Burgesses devised a solution to this dilemma with the following statute:
WHEREAS some doubts have arisin whether children that are slaves by birth, and by the charity and piety of their owners made pertakers of the blessed sacrament of baptisme, should by virtue of their baptisme be made ffree; It is enacted … that the conferring of baptisme doth not alter the condition of the person as to his bondage or ffreedome; that diverse masters, ffreed from this doubt, may more carefully endeavour the propagation of christianity by permitting … slaves … to be admitted to that sacrament.32
Unlike the legislation on the status of the children of slave women, this law recognized the fundamental humanity of slaves, acknowledging they had souls which required attention. However, in the long term, conversion would help fasten the chains of bondage onto slaves, as generations of ministers taught slaves that obedience to their masters was the equivalent of obedience to God, and that the key to heaven began with proper deference to their earthly status. After the American Revolution (1775–83) southern ministers would also defend slavery on the grounds that it was sanctioned by the Bible.33
In two subsequent statutes the Burgesses turned once more to religion, using it to explicitly justify slavery and to help define who might be enslaved. An act of 1670 declared that ‘all servants not being christians imported into this country by shipping shalbe [sic] slaves for their lives’. However, those who came by land would serve to age thirty if they came as ‘boyes or girles’ and for twelve years if they came as adults.34 Presumably, Native Americans came to Virginia by land, while Africans would come by sea. But, the mode of transportation was hardly a key to social status, especially as slavery became rooted in the neighboring colonies of Maryland and then South Carolina, thus opening the possibility that Africans would enter Virginia by land. A 1682 law clarified these issues. Once again relying on religion and nativity to define slavery, the Burgesses declared that ‘all servants … whether Negroes, Moors, Mollattoes or Indians, who and whose parentage and native country are not Christian at the time of their first purchase of such servant by some Christian … to be slaves’.35 Henceforth, any non-European who came from a non-Christian land, whether by land or sea, was to be a slave. But, under this law blacks coming from other New World colonies—even if born in those colonies—might be considered slaves because their ‘parentage’ or ancestry would also have been African and thus non-Christian. Subsequent conversion, as set out in the law of 1667, would not change this. The law applied to mixed-race people (‘Mollattoes’ in the statute), even though half their parentage presumably came from white people who were from Christian countries. But this inconsistency did not apparently trouble the Virginia lawmakers.
The 1670 law, combined with the rule that the children of slave mothers were slaves from birth, created a definable attribution to slavery. Any African brought to Virginia was presumptively a slave, even if baptized, because that person would have come from a non-Christian country. That would also apply to blacks born in Christian colonies in the New World because their ‘parentage’ was African. Whether the law treated them as people or property—or a mixture of both—was unsettled, but their status as slaves was now clear.
A final aspect of the definition of slavery and the status of slaves as people or property concerned slave resistance, rebellions, and punishment. An act of 1669 provided that a master would not be prosecuted if a slave died from punishment. The statute articulated an economic rationale: ‘it cannot be presumed that prepensed malice … should induce any man to destroy his own estate’.36 This rationale was of course faulty, since we know that some slave masters killed slaves for pleasure, out of anger, or when drunk.37 More importantly, the act ignored the possibility that a master’s callous and reckless disregard for the life of a slave could be punished by a charge other than premeditated murder. This statute treated the slave as property—a commodity—and not a person. British common law protected the life of all persons, but under this law the life of a slave was not protected from the whims or anger of the master.
A law of 1680 further limited common law protections for the person of a slave. ‘An act for preventing Negro Insurrections’ made it legal to kill any slaves who escaped from their masters and ‘lye hid and lurking in obscure places’.38 A decade later the legislature authorized local justices of the peace to order sheriffs to ‘kill and destroy … by gunn or any otherwise whatsoever’ any ‘negroes, mulattoes, and other slaves unlawfully absent[ing] themselves from their masters and mistresses service’ who ‘lie hid and lurk in obscure places’.39 These laws effectively reduced slaves to the legal status of wild beasts, to be ‘destroy[ed]’ by public authorities without any trial or hearing. Slaves were property, except when they might ‘lie hid and lurk’ and then they were reduced to the legal status of wild creatures. With these two statutes Virginia had adopted one of the central aspects of the Roman law of slavery—that it was not a criminal act to kill a slave.40
The statutes of the 1660s were the closest colonial Virginians ever came to actually defining slavery. However, the definition was limited and incomplete. Africans sold by the Dutch were slaves, unless they came into Virginia as indentured servants. The children of slave women would be slaves. Slaves who converted to Christianity remained slaves. Blacks (or their descendants) imported from Africa and other non-Christian places were slaves. These laws set the standard that the other British mainland colonies would follow. South Carolina’s founding document simply declared that ‘Every freeman of Carolina, shall have absolute power and authority over his negro slaves, of what opinion or religion soever’.41