3.2.3 Old South (1787-1831): Slave Law in the Old South




 

1800

1820

% of total population

Free Black

Slave

Free Black

Slave

Delaware

13%

10%

18%

6%

Maryland

6%

31%

10%

26%

Virginia

3%

39%

3%

40%

North Carolina

1%

28%

2%

32%



Slave law:  The quiet rebellion of Chancellor Wythe and Judge Tucker

Pleasants v. Pleasants – Virginia, 1800 (6 Va. 319); Hudgins v. Wright – Virginia, 1806 (11 Va. 134)

  • George Wythe and St. George Tucker stood out among Virginia’s great early judges for their reluctance to use the law to shore up slavery.  Wythe and Thomas Jefferson authored the state’s 1782 law permitting manumission of slaves and in Pleasants, Wythe not only upheld the contested will of a Quaker freeing his slaves but held that under the will’s provision, the slaves must be awarded reparations in the form of back pay for their service.  On appeal, Tucker and his colleagues on the Virginia supreme court firmly rejected Wythe’s theory of reparations, holding that slaves have no right to compensation of any sort. 
  • Throughout the South, slaves of mixed race regularly brought “freedom suits,” often claiming that their mother had been white (which under the laws of most slave states would make them free).  In Hudgins Wythe held, contrary to the law of every other slave state, that in the burden was on the owner to prove slave status, not upon the slave to prove a right to freedom.  Virginia’s supreme court again Wythe’s attempt to create a presumption in favor of freedom. 
  • Tucker was more a conservative judge than Wythe but he was one of the earliest Southern jurists to speak out for gradual emancipation.  In his edition of Blackstone’s Commentaries on the Common Law, which became one of the most popular American legal treaties, Tucker argued for gradual emancipation:  future generations of slaves should be indentured as children so that their masters could recoup their economic value, but then should be given their freedom at adulthood.  
  • Like many Southern liberals of his generation, Tucker was willing to accept emancipation only if it was accompanied by efforts to remove blacks altogether from slave society:  freed slaves should be encouraged to emigrate and if they did not, their economic and civil rights should be limited in order to put more pressure on them to leave.  Tucker’s proposal never gained traction in Virginia, but it provided a model that was closely followed in Maryland and Delaware as those states phased out slavery.  Tucker also predicted that if southern blacks remained despite such efforts, eventually an “obliteration of prejudices” and full “incorporation” would incur – a vision which, two centuries later, is coming to pass.
“We must … endeavour to find some middle course, between the tyrannical and iniquitous policy which holds so many human creatures in a state of grievous bondage, and that which would turn loose a numerous, starving, and enraged banditti, upon the innocent descendants of their former oppressors. … Though I am opposed to the banishment of the negroes, I wish not to encourage their future residence among us.  By denying them the most valuable privileges which civil government affords, I wish to render it their inclination and their interest to seek those privileges in some other climate. … Their personal rights, and their property, though limited, would, whilst they remain among us, be under the protection of the laws; and their condition not a all inferior to that of the labouring poor in most other countries.  Under such an arrangement we might reasonably hope, that time would either remove from us a race of men, whom we wish not to incorporate with us, or obliterate those prejudices, which now form an obstacle to such incorporation.”  -St. George Tucker, Blackstone’s Commentaries:  With Notes … (1803)


Slave law:  Balancing interest against humanity

Commonwealth v. Turner – Virginia, 1827 (5 Rand. 678); State v. Mann – North Carolina, 1829 (13 N.C. 263)

  • Slave states were ambivalent as to whether masters should have unlimited rights to punish their slaves or should be held criminally liable for abusive treatment.  Were slaves merely property (in which case no restrictions should be imposed)?  Fully human (in which case they should have full protection under criminal law)?  Or somewhere in between?  Southern judges struggled to reconcile “interest” concerns – the need to preserve an economy and society based on slaves – with considerations of humanity.  Turner and Mann reflect this struggle.
  • In Turner, Virginia’s supreme court noted that the legislature had prohibited masters from murdering their slaves but it refused to extend the law so as to protect slaves from non-lethal punishment.  The majority deplored abuse and excessive punishment of slaves but concluded that any penalties should be left to the legislature.  Justice William Brockenbrough, who dissented, argued that slaves should be given greater protection as a matter of both humanity and economic interest.  Slaves who were given no protection were less likely to work hard and more likely to rebel. 
  • In Mann, arguably the most famous slave law case of all, Justice Thomas Ruffin went beyond the Tucker majority and held that courts could not put any limit on a master’s right to punish slaves, even to the point of death.  Ruffin’s opinion is famous because of the stark terms in which he addressed the conflict between interest and humanity.  Interest must prevail completely, he said, in order to preserve slave society.  Slaves must bear the physical burden of oppression and Southern whites must bear the moral burden of oppression that Southern social and economic imperatives exacted.   


 

Delaware

Maryland

Virginia

North Carolina

1787-1810

1787:  Foreign, domestic slave trade outlawed; free blacks not allowed to vote

1789: blacks given right to jury trial

 

 

 

1810:  Emancipation law:  slave children must be indentured but would be freed at age 25 (males), 21 (females)

 



1796:  Vagrancy law:  free unemployed blacks could be hired out for 6 months

1802:  Free blacks not allowed to vote 

1805:  Free blacks prohibited from selling their own products without certificate of good character

1806:  Free blacks prohibited from entering state; blacks forbidden to have guns or dogs without license

1810:  Black fugitives presumed to be slaves, not free

1788:  Masters’ killing of slaves criminalized

 

 

 

 

 

 

 

 

 1806:  Newly-emancipated slaves required to leave state

 

1790:  Ban on slave importation ended

1810-1831

 

 

 

 

 

1826:  Slaves must have pass in order to travel

 

 

 

1817:  Sale of slaves to other states prohibited

1812:  Masters moving into state may bring slaves, with limitations on number of female slaves

 

1822:  Vagrancy law:  free blacks who defaulted on tax payments could be hired out to pay taxes

 

 

 

 

 

 

1830:  Teaching blacks to read or write prohibited

Sheet music celebrating Frederick Douglass's escape from slavery on Maryland's Eastern Shore (1845) - courtesy Wikimedia Commons
Slave prison, Alexandria, Virginia - courtesy U.S. National Archives and Wikimedia Commons



 



















“If he was merely property, and nothing else, he might be destroyed by his master.  But … [t]he slave was not only a thing, but a person, and this well-known distinction would extend its protection to the slave as a person, except so far as the application of it conflicted with the enjoyment of the slave as a thing.  Upon this ground, was his life protected: on this ground, I apprehend, his person was protected from all unnecessary, cruel, and inhuman punishments.  I see no incompatibility between this degree of protection, and the full enjoyment of the right of property … [W]hilst kindness and humane treatment are calculated to render them contented and happy, is there no danger that oppression and tyranny, against which there is no redress, may drive them to despair?” – Justice William Brockenbrough (dissenting), in Turner

 The end [of slavery] is the profit of the master, his security and the public safety; the subject, one doomed in his own person, and his posterity, to live without knowledge, and without the capacity to make any thing his own … such services can only be expected from one who has no will of his own; who surrenders his will in implicit obedience to that of another.  … 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 … [A]s a principle of moral right, every person in his retirement must repudiate it.  But in the actual condition of things, it must be so.” – Justice Thomas Ruffin, in Mann

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