THE SLAVE: PERSON OR PROPERTY?
The American colonies declared independence from the British Empire in 1776, while Thomas Jefferson famously penned that every man has an unalienable right to liberty, there were almost 500,000 people in the colonies who were still slaves.
In the eighteenth century, Atlantic commerce consisted primarily of slaves, crops produced by slaves, and goods destined for slave societies. The economy was primarily driven by slaves. The slave trade became a regularised business in which European merchants, African traders, and American planters engaged in complex bargaining over human lives, all wit the expectation of securing a profits.
The Constitution of the United States set out a bold experiment in governance, power was to be checked and balanced, the people would elect their own representatives and certain unalienable rights were to be protected. However, this documentary beacon of liberty also contained provisions to embed the institution of slavery into the fabric of American society. The federal structure of the United States left residual powers of legislation with the states, allowing many anti-slavery states to draft their own legislations protecting the personal liberty of their black citizenry. The Supreme Court tried to resolve this tension through its landmark judgements. This paper will seek to analyse the American Constitution, state and federal acts and United States Supreme Court case law to analyse the nature of a slave in post-independence America. Was he merely property of his master or also a person with rights? This paper will limit its scope of analysis to the period following American Independence to the break of the Civil War, roughly from the late 1780’s to 1860.
THE CONSTITUTION
The structure of government was not the only source of contention at the Constitutional Convention that was set up to draft a Constitution for the newly declared United States in 1787. As Madison recorded, “the institution of slavery and its implications” divided the delegates. Briefly stating, the Southern states wanted to protect the institution of slavery as their economy was heavily dependant on it, while the Northern states wanted to abolish slavery to keep in line with the principles of liberty and equality espoused in the Declaration of Independence and the Revolutionary War of 1783. The Northern states also wanted to treat the slaves as property to impose higher taxes on the South, while the South fought to allow slaves to be counted in determining the number of representatives from each state to the federal House of Representatives. A compromise was reached on how to treat slaves: Article I Section 2 valued the slave at 3/5 of a free person to determine the strength of representation; Article I Section 9 prohibited Congress from banning the slave trade for twenty years; Article IV Section 2 imposed a duty on the states to return any runway slaves to their rightful masters . Thus, in the Constitution itself, we see the slaves being treated as persons and property; a person who would be partially valued to determine representation and property that could be freely traded for and that could not escape. It is interesting to note however, that the words “slave” and “slavery” do not appear in the Constitution, a concession to the sensibilities of delegates who feared they would “contaminate the glorious fabric of American liberty.”
The compromise over slavery in the Constitution was for the sake of national unity, Governeur Morris, a delegate from Pennsylvania to the Constitutional Convention, declared he was being forced to decide between offending the southern states or doing injustice to “human nature.”
The treatment of slaves as property was instrumental to the survival of the institution. The Constitution drew heavily from the principles of John Locke, who in his Second Treatise on Government, wrote that in a state of nature all men were equal and entitled to life, liberty, and property. The goal of government was to protect these rights. The right to property was seen as instrumental part of liberty. Government could not take away a citizen’s property without his consent. The Constitution gave the federal government no power to interfere with slavery in the states.
FUGITIVE SLAVE & PERSONAL LIBERTY
Anti-slavery states in the North found interesting ways around the conundrum of stating all men were born equal and the protection of private property (slaves). Beginning with the Pennsylvania Gradual Abolition Act of 1780 (before the Constitution), these acts held that the children born to slaves would not be treated as slaves. The Pennsylvania act was the fist in the Western world to abolish slavery. This act would inspire similar statues across the Northern anti-slavery states. By not decreeing anything about present slaves, the acts did not infringe upon the right to property of slave-owners, however as children of slaves were not treated as slaves, slavery would eventually die out in these states.
To combat the problem of slaves running away from the South to the North, Congress passed the Fugitive Slave Act in 1973. This act set up an institutional framework for the duty imposed on the states in the Constitution to return runaway slaves to their rightful owners. This Act clearly dealt treated slaves as property to be returned to their owners. The Northern response to the Act was to pass personal liberty laws, guaranteeing habeas corpus, jury trial and other procedural safeguards to recaptured slaves. The tension over slavery was now being fought over the nature of the slave; was he property that could not be taken or a person to whom personal liberty laws would apply to?
THE SUPREME COURT WEIGHS IN
The act and the personal liberty laws were challenged in the case of Prigg v Pennsylvania , where the Supreme Court passed a judgement that was dramatically pro-slavery, essentially creating a common law right for masters to hunt down fugitive slaves, whoever they might be, and return them to the slave states, without due process or a warrant from a court. The Court held that the states could not create new laws to impede the return of fugitive slaves and that the Constitution provided a common law right of recaption (right to self-help), which allowed masters or slave catchers to seize runaway slaves anywhere without any official warrant. The Court also refuses to give fugitive slaves the right to due process or trial, rights given to persons under the Constitution, but rather just a summary judgement to determine whether the seized person was the one described by the claimant. The Court in essence was refusing to recognise slaves as person but only as lost property.
The Northern states responded to this judgement by passing new personal liberty laws that didn’t challenge or alter the nature of a runaway slave as property, but rather made it illegal for state officials to enforce the law, effectively preventing Southern owners from recovering their property. The Southern dominated Congress (due to the 3/5th clause of the Constitution giving the Slave states more political power than the number of their free persons warranted) passed a new Fugitive Slave Act in 1950. This act set up a federal controlled infrastructure that circumvented the States efforts to prevent it’s officers from enforcing the law. The new Act also created an incentive for judges to determine that a captured person was the slave sought, by paying them double the compensation for determining in favour of the master. Frederick Douglas, a prominent black abolitionist proclaimed in his famous speech, What to the Slave Is the Fourth of July?, that “the right of the hunter to his prey stands superior to the right to marriage, and to all rights in this republic, the rights of God included! For black men there are neither law, justice, humanity, nor religion.” The dramatically pro-slavery stance of the Court in Prigg and the Fugitive Slave Act would serve to heighten the tension between the Northern and Southern states over the issue of slavery. The heightened tension played a role in the Supreme Court’s decision in Dred Scott v Sandford, another pro-slavery decision.
Dred Scott was a landmark case where a slave declared himself to be free once his owner took him to a state where slavery was forbidden. Chief Justice Taney made several declaration in the opinion of the court that were taken as offensive by abolitionists and blacks. He ruled that blacks could never be citizens of the United States, as “they were not intended to be included under the word of ‘citizen’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secure to citizens of the United States.” He also stated that the “Right to property in a slave is distinctly and expressly fair end in the Constitution” as citizens were allowed to traffic in slaves like any other property and the government was expressly obliged to “protect it [right to property] if the slaves escapes from his owner.” The Fifth Amendment also secured a citizen from deprivation of property without due process of law. Most pertinent to the discussion in this paper, Taney wrote “No word can be found in the Constitution which gives Congress a greater power over slave property or which entitles property of that kind no less protection than property of any other description.” The Supreme Court of the United States had manifestly declared that slaves were to be treated as any other kind of property and that rights available to person and citizens under federal and state laws did not apply to them.
TOWARDS A DISASTROUS END
The response to the Dred Scott was calamitous. Across the North, support for the abolitionist movement grew, eventually leading to Lincoln being elected President, which directly led to secession of the South and Civil War. The Supreme Court, in an effort to impose a judicial solution on a political problem had set the stage for the country to be split apart rather than brought together.
The treatment of slaves as property as opposed to persons determined by factors outside the realm of morality. The South wanted slaves as property to protect their interest in the property as slave labour was instrumental to the Southern plantation economy. The North for all its moral posturing of equality, could afford to do so as their economy was not dependant on slave labour but rather on industry. The compromise made the North at the time of drafting the Constitution was one that prioritised unity of the nation, as the Southern states threatened to leave if slavery was not protected. The decisions of the Supreme Court post adoption of the Constitution and until the Civil War were those that sought to impose the compromise in favour of national unity over morality. The Court felt bound by the sentiment of the Constitution. It was only after a bloody and devastating civil war that the Constitution was amended to reflect African-Americans as free peoples with all rights entitled to citizens rather than as mere property.