The Rise, Persistence, and Slow Decline of Legal Slavery, Stanley L. Engerman

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The Rise, Persistence, and Slow Decline of Legal Slavery

Stanley L. Engerman

As a very long-standing and complex institution, the problems in agreeing on an acceptable definition of slavery remain quite difficult. Some focus on a legal definition of slavery, which defines the rights of individuals, others on the actualities of behavior, whether permitted by law or else the outcome of power relations within society. In an 1820s attempt to define slavery in the British West Indies, James Stephen, the major abolitionist in the Colonial Office, pointed to numerous problems due to different political, economic, and other factors, which meant that slavery differed in many regards in different societies. There were many different aspects of human relations that can be regarded as slavery, slave-like, or analogous to basic constraints on free labor.¹ Generally, Stephen argued, the concept of slavery meant that ‘negroes were property’; they ‘were not regarded as rational or sentient beings capable of rights, but as chattels, the civil character of which was absorbed in the dominion of the owner’. The nature of a slave included (1) ‘to serve the master for life’; (2) ‘the master has power to compel that service by corporal punishment’; (3) it was perpetual as ‘a slave could be sold into, and perpetually retained in slavery’; (4) a slave had no rights against owners or against any other man; (5) a slave could be whipped ‘at the discretion of the master, his delegates, or the deputy of his delegate’; and (6) ‘the same state should attach on their offspring’.

The English jurist William Blackstone, after pointing out that slavery did not then exist in England, stated that slavery meant ‘an absolute and unlimited power is given to the master over the life and fortune of the slave’.² A more concise definition made by Thomas R.R. Cobb, the major legal scholar of the antebellum US South, in 1858, was that ‘Absolute or Pure Slavery is the condition of that individual, over whose life, liberty, and property another has the unlimited control’. In short, Cobb claimed that ‘so utterly opposite is the position of the slave from that of the freeman in respect to this right that we could not better define his condition, than to say it is the reverse of that of the freeman’.³

All scholars who have discussed slavery in a particular society know that if one tries to be specific about the laws of slavery they are ‘corrected’ by the claim that, as Robert Steinfeld and others have argued, there is a spectrum of coercions and that slavery is merely one end of this spectrum of control and coercion. However, on the other hand, if one begins by claiming the concept of a spectrum of coercions, it is often argued that the unique harshness of legal slavery in certain conditions (such as the American South) are being ignored. Since slavery can include a number of different aspects, it may be debated how many of these must be present to be considered as a basis for considering the existence of slavery or perhaps only any one single component might be the basis for defining the condition as slavery.

Clearly terms such as ‘slave-like’ suggest a range of evils, which can be ranked in terms of their harshness. However, there may be a specific threshold that provides the case for public action as being slavery. It is important to consider that there may be limited resources available for the fight for human betterment and, at times, some choices must be made about which of the many existing evils to attack. The use of the term slavery is believed to have important implications, since not all evils to be corrected need be considered slavery. Also, there are some forms of behavior considered to be due to slavery which are the product of what might be considered voluntary decisions, given the existing economic and political constraints, particularly the level of food availability. There may be changes in behavior in times of war, famine, and economic collapse, which influence the public’s attitude towards enslavement, whether temporary or permanent.

In this essay I want to discuss certain issues related to the defining of slavery in the past and present, to see what have been considered the major basis of defining slavery.

A. The Voices of Slaves⁴

There are many discussions of the nature of US slavery in the antebellum ex-slave autobiographies and in the Works Progress Administration interviews with ex-slaves in the 1930s. No doubt the generally negative responses to enslavement are not surprising, with frequent mentions of the costs imposed by sales of family members (being bought and sold like oxen or horses), frequent whippings, poor food, unpaid labor, and lack of education. However, there were periodic claims of adequate food, of good masters, discussions of the benefits of slavery, at least in contrast to the conditions of the 1930s, and also claims that food, clothing, and shelter were adequate, but still freedom was to be preferred. Nevertheless the important point is that the slaveowners had legal and social rights to enforce control over slaves, and these legal rights are what made the system oppressive.

As Norman Yetman, one of the major scholars of the 1930’s slave narratives, points out, regarding the over 2000 interviews of ex-slaves from 1936 to 1938 ‘the treatment these individuals received ran the gamut from the most harsh, impersonal and exploitative to the extremely indulgent, intimate and benevolent’.⁵ He notes that the Works Progress Administration (WPA) interviews provide a different focus than do the slave autobiographies published in antebellum years.⁶ These included a disproportionate number of runaway and freed slaves and their attacks on enslavement often became the basis of abolitionist writing. Even in the WPA narratives there was no shortage of complaints about whippings and sales, but there were also claims by slaves that they had enough to eat and that they ‘had a good master, who never whipped them’. Nevertheless, most commented that they would have preferred to be free, not enslaved. Few, no matter how concerned with the treatment under slavery, and whether its evils were due to the individual master or to the basic nature of the system, provided any precise definition of the slave condition. This, however, is not surprising given their interests.

As do many scholars of US slavery, I believe it is useful to turn to the ex-slave, Frederick Douglass, for some understanding of what slavery meant. Douglass was not, of course, a representative slave, but rather an immensely authoritative and intelligent voice, who had experienced several different forms of southern slavery and had thought deeply about the issues both when enslaved and when free.⁷ There are several interesting discussions by Frederick Douglass on what it meant to be a slave. After a trip to Ireland, Douglass was asked if, because of the famine, the Irish could be regarded as slaves. Douglass acknowledged that while the Irish were in tough conditions, he claimed that because they had the liberty to emigrate, were free to talk to and write to whomever they wanted, ‘and co-operate for the attainment of his rights and the redress of his wrongs’, they were thus not to be fully compared to slaves in the US South who lacked any of these freedoms of action.⁸ Elsewhere, in one of his autobiographies, Douglass commented that even if food and material treatment were adequate, it was the loss of freedom of action that was the primary evil of enslavement.⁹

A similar point about the loss of freedom relative to material benefits was made even earlier. English Civil War discussions concerned the limits on behavior and mobility implied by slavery, in contrast with favorable material treatment.¹⁰ Similarly, when the financial conditions were quite different than what is usually regarded as slavery, in a case involving baseball’s control over players in the 1950s, it was claimed by the judges that the fact that player salaries were high relative to average salaries, it still was the case that the contractual terms resembled the situation in the antebellum South, which limited free choice.¹¹ Choice and freedom of action were regarded the major considerations for considering enslavement irrespective of material treatment.

Unlike other slaves, Douglass did define slavery and its consequences for the enslaved in more detail. In December 1850, he argued:

First of all, I will state, as well as I can, the legal and social relation of master and slave. A master is one (to speak in the vocabulary of the Southern States) who claims and exercises a right of property in the person of a fellow man. This he does with the force of the law and the sanction of Southern religion. The law gives the master absolute power over the slave. He may work him, flog him, hire him out, sell him, and in certain contingencies, kill him, with perfect impunity. The slave is a human being, divested of all rights—reduced to the level of a brute—a mere ‘chattel’ in the eye of the law—placed beyond the circle of human brotherhood—cut off from his kind—his name, which the ‘recording angel’ may have enrolled in heaven, among the blest, is impiously inserted in a master’s ledger