Slavery and Civil Liberties

Slavery clearly violated the civil liberties of those held in bondage. (See the entry on ‘‘Slavery’’ in this volume.) It also had a profound impact on the civil liberties of free blacks and whites. Indeed, much of the development of civil liberties in the period before the Civil War can be attributed to slavery.

Slavery affected the understanding of due process in criminal and civil cases; the meaning of freedom of speech, press, and assembly; and the application of the Bill of Rights to the federal territories. It also led, in Dred Scott v. Sandford (1857), to the first articulation of substantive due process by the Supreme Court and one of the Court’s first rulings on the meaning of the ‘‘takings clause’’ of the Fifth Amendment.

The fugitive slave clause of Article IV, Sec. 2 of the Constitution, allowed masters to recover runaway slaves found in other states and prohibited those states from emancipating any slaves who escaped into their jurisdiction. This clause set the stage for various conflicts between the free states and the slave states and also between the free states and the federal government. In 1793, Congress passed a law to enforce this clause. The 1793 law did not require a jury trial or any normal due process procedures for the return of fugitive slaves. Fearful that free blacks might be falsely claimed as fugitives and taken South, in the 1820s and 1830s most of the northern states passed ‘‘personal liberty laws’’ that gave alleged fugitive slaves more due process rights. Through these laws the free states attempted to give free blacks, and fugitive slaves, access to jury trials, the writ of habeas corpus, and other due process protections. In Prigg v. Pennsylvania (1842), the U.S. Supreme Court struck down all these laws, arguing that the states could not pass any legislation that would supplement the federal law or interfere with its enforcement. In 1850, Congress passed a new law, which specifically prohibited jury trials or the use of the writ of habeas corpus to interfere in the rendition of fugitive slaves. The alleged slave was allowed to have an attorney, but only if he could afford one or one stepped forward to offer his services. The law did not require the court to appoint counsel, and no judges or federal commissioners hearing cases under the law ever did appoint a lawyer for an alleged fugitive slave. Federal commissioners tried to hold their hearings in secret, early in the morning, and finish them quickly, before anyone could find out that a fugitive slave case was in progress. Although not exactly a secret court, there was no attempt to make a fugitive slave case part of an open court. Furthermore, in what was perhaps the most outrageous denial of fundamental rights, alleged slaves were not allowed to testify on their behalf at the hearing to determine whether they were free or runaway slaves. Equally outrageous, from the perspective of opponents of slavery, was a differential fee schedule in cases involving runaway slaves. If a federal judge or federal commissioner determined the person before him was not a fugitive slave, he would get a five dollar fee. But, if he decided in favor of the person claiming the slave—that is if he decided that the person before him was a fugitive slave—he would get a ten dollar fee. The explanation of this fee schedule made sense—if the judge or commissioner found in favor of the alleged slave, he only had to release him SLAVERY 1484 from custody, but if he found in favor of the claimant, he would have to fill out a great deal of paperwork. But however reasonable this was, the law looked like a blatant attempt to bribe judges and commissioners to help southerners catch slaves or enslave free blacks. This went against the very nature of liberty, as set out in Section 40 of Magna Carta, ‘‘To no one will we sell, to no one will we refuse or delay, right or justice.’’ Whites who interfered with the return of fugitive slaves were subject to heavy fines and jail terms. The Supreme Court and the lower federal courts almost always sided with southern masters and against the interests of free blacks, alleged fugitive slaves, or whites who helped them. Both fugitive slave laws and the courts that enforced them trampled on the civil liberties of blacks and often of the liberties of whites who helped them.

Slavery affected free speech in a variety of ways. In the South it led to extraordinary self-censorship. In 1819, for example, a prosecutor in Maryland brought charges again Rev. Jacob Gruber, a Methodist minister, because he gave a sermon that implied that slave holding was sinful and that it was cruel to sell people at auctions like cattle. Rev. Gruber was acquitted, but the very fact that he was prosecuted suggests the precarious nature of civil liberties in the South. In Virginia, a number of ministers and other religiously motivated men would be prosecuted for similar offenses, although few were ultimately convicted. In 1854, Margaret Douglass, a white women, spent a month in jail in Norfolk for teaching free black children to read the Bible. In 1861, Rabbi David Einhorn fled Baltimore in the middle of the night, threatened by mobs that would no longer tolerate his opposition to slavery. He moved to Philadelphia where he became the chief rabbi at Congregation Kenesseth Israel, which was known as the Abolitionist Synagogue.

By the eve of the Civil War it was impossible for whites to debate slavery, because anything that might resemble antislavery literature was banned. Some white northerners were arrested and tried for the mere possession of antislavery literature. In the 1850s, the greatest bestseller of the age, Uncle Tom’s Cabin, could be read in the North and Great Britain while translations in German, French, Spanish, and other languages made it available almost everywhere in the world. But, in the slave south the book was banned, and possession of it could lead to arrest or a mob attack. In the late 1850s, a native of North Carolina, Hinton Rowan Helper, published The Impending Crisis of the South: How to Meet It (1857), a detailed discussion of the dangers of slavery to the white, nonslaveholding class. He argued that slavery and the South’s dependence on cotton as harmful to the majority of southern whites, who did not in fact own slaves. Helper was forced to leave the state of his birth and soon afterwards his brother left as well. In 1860, the North Carolina Supreme Court upheld the conviction, and one-year jail sentence, of Rev. Daniel Worth, also a native of North Carolina, who had circulated Helper’s book. Free speech was simply not available to southern whites if they dared to challenge slavery. The southern states also tried to get the free states to ban antislavery speech. In 1831, Georgia offered a $5,000 reward for the arrest of William Lloyd Garrison, the editor of The Liberator, the nation’s most radical antislavery paper. In the mid-1830s, Alabama asked the governor of New York to extradite R. G. Williams, of the American Anti-Slavery Society, for helping to distribute The Emancipator in that state. Because Williams had never actually set foot in Alabama, the governor of New York refused to arrest him and send him to Alabama for trial. The First Amendment did not apply to the states at this time, so there was no issue of censorship that could have been taken to the federal courts. However, most state constitutions protected basic rights of freedom of expression. In the South, however, these rights simply did not exist for people wishing to debate slavery. In Charleston, South Carolina, mobs attacked the U.S. post office, indiscriminately burning bags of mail from the North, because members of these mobs feared that the mail contained antislavery literature. Postmaster General Amos Kendall refused to condone attacks on the mail and declared that abolitionist propaganda was not technically illegal, but he also declared that any local postmaster who refused to deliver abolitionist mail would be ‘‘justified’’ in doing so and would not be sanctioned. In Charleston and elsewhere, local postmasters in fact refused to deliver mail from the North without inspecting or allowing locally appointed vigilance committees to do so. This kind of censorship went to the heart of civil liberties, by prohibiting the circulation of literature that challenged social institutions. The South’s growing police-state mentality also affected the North. In New York, the local postmaster refused to allow antislavery material to be sent South, even though this violated the postal laws. Postmaster General Kendall saw no reason to reverse this policy. In 1850, Arkansas made it a crime to ‘‘maintain that owners have not the right of property in their slaves,’’ and in 1859, a South Carolina law provided a one-year jail term for merely receiving antislavery material in the mail. The self-censorship of the South also affected southern universities. Lieber was effectively forced out of the University of South Carolina because he was not sufficiently proslavery, although at no time did he openly challenge the central institution of his adopted state. In 1856, the president of the University of North Carolina proudly noted that in the previous two decades no students had ever debated the issue of slavery. In 1860, Rev. John G. Fee, the founder of Berea College, fled Kentucky because his opposition to slavery made it unsafe for him to live there. That same year the Rev. Leonidas Polk established the University of the South, in Sewanee, Tennessee, as a place where higher education would teach the value of slavery.

The First Amendment and the rest of the Bill of Rights did apply to the District of Columbia, but here too slavery trumped civil liberties. In 1836, authorities in Washington, D.C., prosecuted Dr. Rueben Crandall, a Quaker from Connecticut, because he was found to possess some antislavery pamphlets. The prosecutor who brought this case was Francis Scott Key, who was the author of the Star Spangled Banner, which later became the national anthem. Key lost the case because he could not actually prove that Dr. Crandall had circulated these pamphlets and claimed they were packed into his luggage without his knowledge. By the 1840s, Abolitionists had established their right of freedom of the press in the nation’s capital, where a leading antislavery paper, The National Era. was published. In 1851–1852, this paper published Harriet Beecher Stowe’s great antislavery novel, Uncle Tom’s Cabin, in serial installments.

The First Amendment also suffered in Congress because of slavery. That Amendment protects the right to ‘‘petition the Government for a redress of grievances.’’ However, in the 1790s, southern Congressmen successfully prevented the reception of petitions from free blacks. In the 1830s, Abolitionists began to send hundreds of petitions to Congress asking the national legislature to pass various laws to restrict slavery. The House of Representatives instead adopted a ‘‘gag rule,’’ which prevented these petitions from even being read on the floor of Congress. Congressman John Quincy Adams, who had been elected to the House of Representatives after serving as president, considered the gag rule to be an unconstitutional denial of the right to petition. For nearly a decade, from 1836 until 1844, Adams and a handful of antislavery Congressmen fought the gag rule. Finally in 1844, northern Democrats, who had previously supported the southern wing of their party on this issue, joined northern Whigs to repeal the gag. The debate over the gag rule helped create a climate of civil liberties in the North, as people in that region came to see slavery as a threat to the liberty of free whites, as well as blacks.

Slavery also threatened freedom of expression in the North. In the 1830s, mobs attacked Abolitionists throughout the North when they spoke out against slavery. These mobs were often motivated by racist hatred of blacks, but members of the mobs also feared that antislavery would lead to instability. Northern conservatives understood that verbal and literary assaults on slavery would undermine national harmony and the Union. In Philadelphia a mob burned a building used by the antislavery movement for meetings. In Boston, a mob placed a noose around the neck of the abolitionist editor, William Lloyd Garrison, threatening to hang him. Abolitionist speakers, like Garrison, Wendell Phillips, and Frederick Douglass, were often assaulted in the late 1830s and early 1840s when they tried to give speeches attacking slavery. Mobs in Cincinnati destroyed the printing press of the Philanthropist in 1836, but the two editors, James G. Birney and Gamaliel Bailey, escaped without serious injury.

In Alton, Illinois, Elijah P. Lovejoy was not so fortunate. Lovejoy was the editor of the St. Louis Observer, a religious paper. In 1836, Lovejoy condemned the Lynching of a free black man in St. Louis and attacked a local judge for his failure to vigorously pursue the leaders of the lynch mob. This sort of freedom of expression was not acceptable in the slaveholding city, and a mob attacked his press. Up to this time Lovejoy had not taken a stand on slavery, and even in this incident, he condemned Lynching, not slaveholding. But whites in St. Louis saw little distinction between Lovejoy and an abolitionist, and he was forced the leave the city. He moved across the river, to Alton, Illinois, where he planned to publish the Alton Observer. However, even before his printing press was unloaded, a mob, made up mostly of men from St. Louis, attacked the crated press and threw it into the River. Lovejoy ordered a second press and at the same time announced had become an opponent of slavery. A mob destroyed this press as well. When a mob attacked the building where he had his third press, Lovejoy defended his property. While trying to put out a fire on his roof, which had been started by the mob, someone in the mob shot and killed Lovejoy. Lovejoy became the antislavery movement’s first martyr. His death underscored the threat to the liberty of whites that came from slavery.

The U.S. Supreme Court heard few cases involving civil liberties or the Bill of Rights before the Civil War. In Prigg v. Pennsylvania (1842), as already noted, the Court held that persons seized as fugitive slaves were not entitled to a trial with traditional due process guarantees. In Jones v. Van Zandt (1847), the Court upheld a civil suit for the value of a slave who was never recovered after Van Zandt, an Ohio farmer, gave the runaway a ride in his wagon. The Court rejected Van Zandt’s argument that in Ohio all persons were presumed to be free and thus he could have had no notice that the person he gave a ride to was in fact a runaway slave.

The Court’s most important pronouncement on the Bill of Rights and slavery came in Dred Scott v. Sandford. The main issue in Dred Scott was the constitutionality of the ban on slavery in the federal territories west of Missouri. Taney’s strongest argument for overturning that ban was his assertion that freeing slaves violated the Fifth Amendment. Taney argued that Congress could not deny people living in the territories their fundamental rights guaranteed in the Bill of Rights. He noted: ‘‘For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances.’’ Similarly, he asserted that Congress could not ‘‘deny to the people . . . the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.’’ He then turned to the Fifth Amendment, noting:

These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.

Taney continued to make this point in his opinion, writing: ‘‘So, too, it will hardly be contended that Congress could by law quarter a soldier in a house in a Territory without the consent of the owner, in time of peace; nor in time of war, but in a manner prescribed by law. Nor could they by law forfeit the property of a citizen in a Territory who was convicted of treason, for a longer period than the life of the person convicted; nor take private property for public use without just compensation.’’

Taney also asserted that ‘‘the right of property in a slave is distinctly and expressly affirmed in the Constitution.’’ Thus, if slave property were protected by the Constitution—as it surely was—then taking that property without due process or compensation would violate the Fifth Amendment. Thus, Taney noted: ‘‘And if the Constitution recognizes the right of property of the master in a slave, and makes no distinction between that description of property and other property owned by a citizen, no tribunal, acting under the authority of the United States, whether it be legislative, executive, or judicial, has a right to draw such a distinction, or deny to it the benefit of the provisions and guarantees which have been provided for the protection of private property against the encroachments of the Government.’’

This argument was the first time the Supreme Court has ever determined that a law violated the Bill of Rights. Taney was intent on protecting the liberty of the master to continue to own his slave property in any federal territory, arguing that a law that took property away without any judicial hearing or compensation could not be ‘‘dignified with the name of due process of law.’’ This was the same analysis that the Supreme Court would use, nearly a century later, to incorporate the Bill of Rights to the states. Members of the new Republican Party reacted to Dred Scott with shock and dismay. Lincoln’s vigorous and articulate attack on the opinion helped make him a national figure that led to his nomination for president three years later. After the Civil War, the Republicans wrote and ratified the Fourteenth Amendment, which effectively reversed Dred Scott. Part of that amendment prohibited the states from denying any person ‘‘life, liberty, or property without due process of law.’’ The Supreme Court would ultimately use this clause to expand the Bill of Rights— and fundamental civil liberties—to the states. In this way, theories of law that Taney helped create to protect slavery later became the engine for expanding civil liberties throughout the nation.

PAUL FINKELMAN

References and Further Reading

• Curtis, Michael. Free Speech: ‘‘The People’s Darling Privilege’’: Struggles for Freedom of Expression in American History. Durham: Duke University Press, 2000.
• Eaton, Clement. The Freedom of Thought Struggle in the Old South. New York: Harper and Row, 1964.
• Finkelman, Paul. Dred Scott v. Sandford: A Brief History with Documents. Boston: Bedford Books, 1995.
• Nye, Russell. Fettered Freedom: Civil Liberties and the Slavery Controversy. East Lansing: Michigan State University Press, 1964.