Slavery

Slavery was clearly the most obvious violation of civil liberties in American history. The system denied slaves all civil liberties. With the exception of the right not to be murdered or mutilated (by 1830 both were crimes under the laws of the southern states), slaves had no legal rights. They could not sue or be sued, they could not testify in court against a white or in many places even against a free black. They could own nothing and were instead the subject of ownership. They were property and could be bought and sold, or given away. They could not legally marry and had no control over their children or their family’s destiny. Spouses could be separated by sale or removal, and the children of slaves could also be sold away from parents from their children. Some states prohibited separating very young children from their mothers by public sale, but mothers could be sold without their children, and masters often separated toddlers from their parents. Slaves developed their own religious traditions, but masters and state governments suppressed slave religious expression whenever they thought it was necessary or useful to do so. Similarly, masters imposed religion on their slaves, often as a device to control them. Slaves had no free speech rights, and in most southern states it was illegal to teach them to read. Far from having a right of assembly, southern laws prohibited gatherings of slaves or free blacks; and in some states even services in all-black churches had to be observed by a white. Slaves in the end were denied their liberty without due process of law. This was even true in jurisdictions that were entirely under the control of Congress, such as Washington, D.C., and various federal territories. Although the Bill of Rights presumably prohibited Congress from passing any law to deprive anyone of his or her liberty without due process of law, this provision of the Constitution simply did not apply to slaves.

Although legally considered property, slaves were treated as persons when charged with crimes. Ironically, when charged with a crime slaves were often given trials that were reasonably fair, with some due process protections. Southern courts sometimes overturned the convictions of slaves on the basis of Coerced Confessions or the lack of effective counsel. These rules may have had the effect of giving some slave defendants due process, but the main purposes of such rules were to protect the integrity of the court system itself, preserve white supremacy, and prevent the needless destruction of the valuable property interest that masters had in their slaves. Slaves had to have lawyers defend them, for example, because otherwise the trial would have been offensive to the notions of how courts should operate, or worse yet, slaves would have had to act as their own attorneys, which would have undermined notions of race and status in the slave south.

Slaves had no expectation that their bodies would be free from physical punishment. Masters were free to whip and beat slaves as the wished, to incarcerate them and chain them up or tie them down. Violence was inherent in the system of slavery. A few masters were punished for murdering their slaves. John Hoover was executed in North Carolina after the state supreme court upheld his conviction for murdering a slave by torturing her, forcing her to work virtually naked outdoors in the winter, and savagely beating her. But Hoover’s murder conviction and execution was highly unusual. Most slaves suffered punishments that did not kill them, and they could expect no intervention from the legal system. As Chief Justice Ruffin of North Carolina noted in State v. Mann (1829),

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 anything his own, and to toil that another may reap the fruits. What moral considerations shall be addressed to such a being, to convince him what, it is impossible but that the most stupid must feel and know can never be true-that he is thus to labour upon a principle of natural duty, or for the sake of his own personal happiness, 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. Such obedience is the consequence only

of uncontrolled authority over the body. There is nothing else which can operate to produce the effect. 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, I feel it as deeply as any man can. And as a principle of moral right, every person in his retirement must repudiate it. But in the actual condition of things, it must be so. There is no remedy. This discipline belongs to the state of slavery. They cannot be disunited, without abrogating at once the rights of the master, and absolving the slave from his subjection. It constitutes the curse of slavery to both the bond and free portions of our population. But it is inherent in the relation of master and slave.

More succinctly, Chief Justice Roger B. Taney of the U.S. Supreme Court declared in Dred Scott v. Sandford (1857), under the U.S. Constitution blacks were ‘‘a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.’’ Thus, it was permissible to treat them as slaves, with no rights at all.

Thus, slavery fits into the history of civil liberties as the most egregious example of the denial of such liberties in our national history. The fact that slavery existed, and was protected by the U.S. Constitution, illustrates the way in which civil liberties were limited and constricted at the nation’s founding.

PAUL FINKELMAN

References and Further Reading

• Finkelman, Paul. Slavery and the Founders: Race and Liberty in the Age of Jefferson. 2nd ed. Armonk, NY: M.E. Sharpe, 2001.
• Morris, Thomas D. Southern Slavery and the Law, 1619–1860. Chapel Hill: University of North Carolina Press, 1996.
• Tushnet, Mark. Slave Law in the American South: State v. Mann in History and Literature. Lawrence, KS: University of Kansas Press, 2003.