Penal Servitude
Forced Prison Labor Is a Form of Slavery
An excerpt from Beyond Prisons by Laura Magnani and Harmon Wray
"Art From Jail" Artwork by Jos Sances Serigraph, Edition 120, 8 color, 22" x 30"
"If we look at the chain gangs, jails, and other penal institutions in the country and the state, we arrive at one of two conclusions. Either education and wealth are two of the strongest fortifications against the commission of crime, or there is a different measure of justice for the rich and the poor, white and black, the educated and the unlettered." -- Raleigh (North Carolina) News and Observer, December 27, 1930
Prisons have always reflected the relationship between wealth and power in a country. In the United States today, prisons still clearly reflect the racism and greed that have shaped the national identity.
The use of prisoner labor for corporate or public-sector profit results in prison labor conditions similar to those reported to exist in China. The United States government has regularly and properly condemned the Chinese government's practices. Prison labor programs, and the privatization of prison systems and programs, encourage prison authorities and the state to maximize the number of people in prison rather than focus on public safety. They further shift prison policies away from constructive programs that actually prepare a prisoner psychologically and practically for his or her return to the community.
The forced labor of prisoners has been a crucial factor in the development of prison policy and in the stabilization of the American economy from the very beginning of the U.S. prison system. From the start of the penitentiary movement, the idea that decreasing idleness through productive labor and quiet reflection upon one's crime in the privacy of one's cell was the best way to reform the prisoner, and the practice of leasing prison laborers to private bidders, became the legal and cultural platform upon which the U.S. prison industry was built.
The United States has frequently relied upon a secondary labor force that is in bondage. Forced labor has always existed alongside of, and been recruited from the ranks of, free labor. In times of economic crisis (most notably the Reconstruction period after the Civil War; the period directly following the collapse of the stock market in 1929; and the current period, as we see great underemployment of minimum-wage and low-skilled workers), the prison population has swelled and prisoners have been put to work. These upsurges in the prison population historically have not been followed by a proportional abatement in the number of those imprisoned when the economic crisis has subsided.
Before the abolition of slavery, there were few prisons and penitentiaries in the United States. All large penitentiaries were in northern states. Southern states had smaller prisons, populated almost entirely by white people, since slave owners conducted their own punishment of their slaves. The rapid expansion of state prison systems in the late 19th century had the effect of maintaining the power, racial, and economic relationships that existed under slavery.
When slavery was abolished, the Slave Codes, which had regulated the behavior of slaves and all those of African descent, were rewritten as the Black Codes. The Black Codes had been used in northern states as early as 1790 to criminalize previously legal activities for African Americans and to regulate the activities of free people of African descent. Black men were arrested for "vagrancy" or "breaking curfew." In the South, after the Civil War, former slaves were sentenced to prison and then leased out by the prison to work for local plantation owners.
In the southern states, with the protection of the Thirteenth Amendment, the convict lease system expanded beyond the old slave plantations to include coal mining, railroad building, and other businesses rising in the "New South." In the 1880s, a fledgling labor movement took on the former slave states' exploitation of black and poor white prisoner labor and its effects of disemploying free labor and driving free-world wages down. After decades of political, sometimes violent, struggle, the convict lease system died out in most of the South by the early 20th century.
Just as sharecropping and tenant farming replaced slave labor, the convict lease system was replaced by a combination of chain gangs of prisoners (often under county jurisdictions), working on roads and other public works, and state prison industries run by the governments. Since organized labor had successfully pushed through laws prohibiting states from marketing prison-made merchandise on the open market, many prisoners were put to work manufacturing products to be used only in and by state government -- for example, office furniture, license plates, road signs, and work clothes and uniforms for prisoners and state workers. Others were employed in various farming, maintenance, food service, and laundry service work for the prisons themselves.
In 1979, the U.S. government repealed the interstate transport law that had forbidden interstate transport of prisoner-made goods. The Department of Justice implemented a national work program throughout the federal prison system. There, prisoners theoretically work for minimum wage, of which 80 percent is withheld for room, board, survivor compensation, medical fees, and educational costs.
In the 1970s and 1980s, the economy saw increased mobility of U.S. corporations and the growth of transnational corporations. Seeking greater profit, manufacturers continued their century-long pattern of first going to the southern states, where labor was unorganized. Later, many plants and jobs were moved to poorer nations, as companies continued to seek to maximize profits at the expense of labor.
The flight of factories from manufacturing centers has left entire cities economically unstable. The ensuing poverty and economic vulnerability has resulted in dramatic increases in criminal activity, usually drug crimes and crimes against property, in urban communities. Some jobs are now returning to the United States -- but to the prisons, which contract with private industry, instead of to the urban centers. Industrial programs in prisons subsidize private industry by providing free factory space, subsidies for the tooling of the factory, security, electricity, and guaranteed cheap labor.
Thirty states now allow some type of legalized contracting of prison labor to private firms. Thus, prison labor has become an alternative to moving offshore for many corporations. Workers unemployed because of job flight -- and their children -- are now working these jobs in prison. Upon release, they will go home to the same poor and jobless communities, and they will be as vulnerable to crime as they were before they went to prison.
Involuntary penal servitude
"What we have is a billion-dollar manufacturing industry that legally utilizes slave labor, has little overhead, is unregulated by state and federal workplace safety or labor laws, provides no health insurance or benefits and no sick pay for its employees, includes hazardous materials in the construction of its products, forces customers to buy its products under penalty of law, and prohibits its workers from organizing."-- Karyl Kicenski, "The Corporate Prison: The Production of Crime and the Sale of Discipline," 2002
Today, all forms of convict labor have returned in one form or another. Minimum-wage laws usually do not cover prisoners. They do not receive workers' compensation if they are injured while working. Prison laborers are not protected by the Fair Labor Standards Act, nor the Occupational Safety and Health Act.
Prison laborers are not permitted to meet among themselves to try to improve their working conditions. Average minimum wages for state prison labor in this country are $0.93 a day for nonindustry work; average maximum wages are $4.73 a day. The wages are much lower than public- or private-sector minimum wages because the vast majority of prisoners work in institutional prison jobs, not in jobs with private industry.
Private-industry state prison jobs pay anywhere from $0.23 to $7.00 an hour, but the "take-home" portion of prison pay is only about 20 percent of that amount. This is equivalent to the cost of maquiladora labor in the factories across the border in Mexico, which pay extremely low wages and have notoriously poor working conditions. Due to severe restrictions on the rights of prison labor, it is not surprising that some industries are turning to the use of prison labor as an alternative to moving offshore.
Politicians and policymakers like to promote prison labor programs as job training, but products fabricated by prisoners are products not being produced by free workers. Thus, labor skills mastered in prison do not necessarily translate into jobs upon release. Private industries, for their part, use prison laborers to drive wages and benefits down and to wield power over their external work force.
While prison officials use prison labor as a management tool, prisoners use it as their only legal way to earn any revenue. Statistics on the hiring of former prisoners do not exist, but very few former prisoners report being hired as a result of their prison work experience. In principle, a fair and voluntary work program, paying meaningful wages for meaningful work, with reasonable opportunities to unionize, gain promotions and raises, and learn job skills marketable on the outside upon release, would serve both prisoners and society.
But under the present penal regime, prison-industry programs are about exploiting vulnerable people's labor for wealthy executives' and shareholders' profit, not about job training.
Slavery and the 13th Amendment
The Thirteenth Amendment to the U.S. Constitution reads: "Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."
We oppose slavery of all kinds - including the use of prisoner labor for profit -- while supporting the creation of substantial job-training programs. The AFSC National Board calls for revision of this amendment so this exception clause is deleted and the Thirteenth Amendment prohibits all slavery and involuntary servitude within the United States.
Work may be seen by some as a legitimate sanction -- a way for people to "give back" if they have caused harm. However, permitting slavery as an exception to the Thirteenth Amendment makes the prison system the direct heir to the chattel system. The fact that the United States incarcerates people of color at an alarmingly higher rate than whites makes this heritage all too clear.
Beyond PrisonsA New Interfaith Paradigm for Our Failed Prison System
by Laura Magnani & Harmon Wray
Published 2006 by Fortress Press208 pages Price $13.00Phone: 1-800-328-4648www.fortresspress.org
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Friday, May 25, 2007
Early America Review » Winter 96
Securing the Leg Irons: Restriction of Legal Rights for Slaves in Virginia and Maryland, 1625 - 1791
Slavery In Early America's Colonies:Seeds of Servitude Rooted in The Civil Law of Rome
by Charles P.M. Outwin
Introduction
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First devised during the late seventeenth and early eighteenth centuries, the laws and justice system governing the institution of Negro slavery in the British North American colonies of Virginia and Maryland constituted but one element in a complex matrix of coercive instruments designed for suppression of legal humanity in slaves. Other more "spontaneously" oppressive cultural devices, such as distortion of religious doctrine or implementation of arbitrary ethical values, stand (because of their typical logical vagueness) in marked contrast to the law, which requires definitive legal status for social entities that are to be governed by established rules and norms of social conduct.
The road to legal definition of slavery was not smooth. The English "common law," which formed the basis for all Anglo-British and Anglo-American legal practice in the seventeenth and early eighteenth centuries, was a system that sought to establish liability through precedent of what had been held liable in previous instances, distinguishing between entities that were capable of guilt and those that were not.1 These entities are either possessed of legal existence as persons with rights, or they are things created, possessed, and disposed of by legal persons, actual or fictional. In other words, it was at least in major part an issue of the assignment of the right of choice, of a right to exercise free-will. It was this problem in definition of legal status that appears to have been at the heart of law and legalities regarding Negro slaves in Anglo-British colonial America; the job was not easy, and full of fatal logical pitfalls.
A slave auction in which black families were often broken up when sold to slave buyers. Copyright Chicago Historical Society
If there was any change of status regarding humans held in servile bondage in the laws of England, Virginia and Maryland during the colonial period, 1625 - 1789, then such development ought to be evident from examination of court records. Not only that, but it should also be fairly simple to trace precedent leading up to the establishment of "the peculiar institution," especially by means of the analysis of documentation evincing the denial of the slaves' personal legal sovereignty in such liberties as the power to make contract. Finally, some indication ought to emerge of the dynamic synthesis attempted by Southern jurists between rigid Roman Corpus Jvris Civilis and mutable common law practice.
During the period of nearly two centuries between 1605 and 1789, Englishmen living in America increasingly came to rely on Roman civil code for the legal support of slavery. Even so, having realized this, it is also very important to understand that this was not by any means the entire philosophical basis of the slavery imposed on Africans by Europeans. Indeed, legality was only a very small portion of the overall socioeconomic justification for slavery, relying as it did on a complicated system of beliefs that is not within the scope of this paper to address.
Rather, dispositions from Maryland and and Virginia, as presented in Helen Honor Tunnicliff Catterall's Judicial Cases concerning American Slavery and the Negro (1926 & 1936) are examined and compared for some indication of developments concerning the legal status of Negro slaves in those Anglo-British colonies. Remarkably, no biographical notes about Mrs. Catterall could be found, except her dates (1870 - 1933) and the fact that she was married to a now obscure professor of English, Ralph Charles Henry Catterall ( d. 1916). Few works referenced her study reference could be found to critiques of her work or resource to it in bibliographies attending other studies of American slavery.
Very considerable space is devoted to the creation of an historical Roman, medieval European and English context for the succeeding discussion of the judicial cases in Virginia and Maryland collected by Catterall. The majority of court records she exhibits for the seventeenth and eighteenth centuries in those colonies are lawsuit and probate. There is a serious hiatus in Maryland's official legal documents between 1771 and 1783. That colony also had manifestly far fewer slaves than Virginia. Nevertheless, Maryland has been chosen for comparison with Virginia both because of the age of its records concerning slavery and for its proximity to the other colony, with which (at first, at least) it was at some philosophical and legal variance, including the issue of slave status.
The Roman, Medieval European and English Legal Background
Some scholars might find it objectionable to refer to Roman precedent in the development of Anglo-American slave law during the early colonial period because of an assumed irrelevance of ancient issues to modern situations. In fact, English and Anglo-colonial magistrates had received educations steeped in neoclassical humanism. The seventeenth and eighteenth centuries could arguably be said to be the height of the Renaissance, when Latin and Greek learning penetrated to far corners of general education. Thus thoroughly educated in the thought processes of Republican and early imperial Romans, many American legal scholars learned entire speeches from Marcvs Tvllivs Cicero by heart and had whole blocks of il Corpvs Jvris Civilis committed to memory in the original language. Orators sought to emulate Roman rhetoric, legislators struggled to develop statutes worthy of Roman law and judges aspired to the clarity of Roman jurisprudence.
Certainly there are peculiar similarities between Roman and American practices concerning slavery. Even the same term was applied, in translation, to male slaves of all ages: "pver," in Latin, "boy," in English.2 Slaves were classified in the Roman legal code as "res," that is, "movable property," a concept a little too conveniently close to the English legal concept of "chattel." This it held in common with other ancient slave systems, from pharonic Egypt through Mesopotamia to India and China.3
Thus, the jurists of both Rome and Dixie felt comfortable in describing the legal condition of slaves, following the example of such jurists as Florentinvs and Vlpian,4 as one of "dual status." This was completely consistent with the Roman legal concepts of dvplex interpretatio, "double interpretation," and in vtramqve partem, "argument from both sides of a question."5 This accepted duality in Roman legal practice is best illustrated by the essential contrast between ivs natvrale and ivs gentivm. Roman civil code, even in its most important revisions by Justinian I (527 - 565 A.D.) and Leo VI (886-912 A.D.) "the Sage" of the Macedonian Dynasty, remained ultimately pagan in that it dealt with what was understood to be immutable physical conditions, devoid of salvation by grace or divine charity, except as described below. Liability was established by means of authoritative, even omniscient pantocrator ("pantocrator" or "all-ruler") declaration ... the law itself was thus divine. Roman reasoning stemmed from the assumption that ivs natvrale, the law of nature, was the source of all justice. Under ivs natvrale, according to the jurist Florentivs (c. 150 AD), "est hominem homini insidiari nefas esse," which is to say, "it is a grave wrong for one human being to encompass the life of another."6 All physical or mortal conditions, therefore, including those of humans, were immutable because they had been so ordained by nature, except in the wondrously omnipotent act of manv missio,7 the "stretching forth of the hand" by a remarkably powerful individual, such as (in theory) an aristocratic master or the emperor. Power had everything to do with the gesture of manumission. Later, Christian charity was attached to it, but was still secondary to the indulgence in a feeling of sovereign potency for those who exercised manumission. Slavery was tolerated, not merely because of ivs gentivm, which was held to be entirely separate from ivs natvrale ... "everybody else is doing it," even though it was clear that slavery was somehow wrong, but because manumission was an important artifact in Roman religiocultural doctrine. It was, then, the body of Roman civil law, especially the Corpvs Jvris Civilis Jvstiniani, to which the courts of colonial Virginia and Maryland were to directly refer for precedential support in the establishment of slavery.8 Even the notion of slavery as a "peculiar institution" translates with ease into Latin, as pecvlivm institvtio, and would not have been incomprehensible to Roman jurists of the middle and late empire.9
Plantation slavery and urban slavery existed in Rome, although the latter attained a more advanced and long lasting state there than in North America. American slaves had social functions similar to those of Rome, even extending to the assignment of positions in skilled craftsmanship, concubinage and domestic management. Like Christianity in America or Confucianism in China, Roman-style Stoicism as practiced by such adherents as Seneca10 sought to exert a humane influence on some aspects, sometimes, of the day-to-day administration of the institution, but none succeeded in ameliorating the basic inhumanity of slavery.
On the other hand, American slaves never achieved exalted status as governmental bureaucrats, corporate stewards or legal functionaries ... but this may be attributable to the fact that, by comparison, American slavery as an institution did not last anywhere near as long as that of Rome or the Byzantine empire that inherited and perpetuated it to the very end in 1453 A.D., only thirty nine years before Cristobal Colombo sailed on his first voyage to the New World. Neither did Dixie ever achieve as liberal a level of manumission and social transformation for freedmen as Rome did, in spite of any racial considerations. Roman slavery as an established, viable institution was already more than six hundred years old by the time the empire first came to be. American slavery, in comparison to that practice in the Mediterranean region or China, never attained the social development whereby slaves were incorporated into every sector of society. The civilization of the American South up until 1860, though gracious, remained primarily agrarian and rustic, in spite of the existence of such comparitively modest urban centers as New Orleans, Richmond and Charleston ... and had a long way to go before emulating the impact of imperial China or Rome.
Slavery in the early Middle Ages of north-western Europe (coexisting with the legally somewhat less onerous serfdom) was more similar to the agrarian form familiar in the United States, but in England and France the practice faded away between c. 1100 and c.1350. Throughout the period, slaves on the European mainland remained legal Things, in conformity with the remnants of Roman civil code, and as demonstrated in the Spanish Code de Tortosa (1272). They were also believed under the influence of Christianity, to be possessed of a salvageable soul which could only theoretically attain human status through conversion.11 Thus, although native slavery virtually disappeared after the depredations of the Black Death, Christian Iberians began again to keep unconverted Moors and Africans as slaves at the close of the fifteenth century. 12 The northern Spanish and Portugese of Barcelona and Lisboa, along with the Italian Genoese and Venitians had come into contact with the laws and customs of revered Constantinople via the Mediterranean trade routes, and tried to emulate her style. When Byzantium at last fell to Muhammed II and his Ottoman Turks, her philosophers and legates fled not only to Venice, Florence, Milan, Paris, Rome and Palermo, but to Barcelona, Madrid and Seville as well. Much of the devolping laws for the newly powerful principalities of Aragon and Castille depended upon the wisdom and guidance of expatriate Byzantine jurists. Soon, the newly united Spain would bring its version of Roman civil code, including that regarding slaves, to America.
Even so, slavery was not an open-and-shut case in late medieval Europe. Earlier, Thomas Aquinas (c. 1256) offered arguments that, because it was not present in man's original sinless state, that slavery could not be in the soul's best interest. Though slavery, in other words, ran contrary to free will in his estimation, Aquinas subscribed to the prevailing cosmology of a hierarchically ordered universe and social order, and acquiesced to the Canon Law acceptance of slavery, mitigated only by conversion and baptism. In England, the friend of Henry VIII's youth, Sir Thomas More (1516), incorporated an acceptance of slavery into his Utopia, although he believed himself to be describing a perfect English society.
The basic contradiction between the twin bodies of Roman natural and national legal theory was intensified by their contact with English common law. This system (by contrast to Roman concepts of rigid stasis) originated in primitive Anglo-Saxon Germanic tradition that understood all reality to be in a state of never-ending flux, thus producing a changeable physical and social order. One need only examine such early Anglo-Saxon literature as The Wanderer (c.800 AD) or The Ruin (c. 600) to appreciate the truth of this statement. Such a condition made the English common law system amenable not only to constant in promptv revision, but also to the Christian doctrines of free-will and charity. It is only logical that the clash between Roman code and the common law over slavery in the American setting should therefore produce intense debate over three centuries regarding the a relative weakness of some sort of "dual status" before the law for Negro slaves.
Jurisdiction over slaves had been left by ancient Roman judges by and large in the hands of the slave owners. This arrangement would have suited most post medieval Anglo-Americans in the southern colonies and states well, ... had it not been for the fact that Roman and British practices differed strikingly in their formulations. Whereas Roman law was generally conceived as rigidly authoritarian code, British law usually followed the ancient Germanic practice of relying on an accumulation of malleable precedent. Thus, British law (in its primitive form at least, regardless of the ancient Romano-Germanic concept of "servi" or servant-obligation) was subject to constant revision, and, as a consequence, so was definition of legal status. Roman civil code evinced no such flexibility.
Thus, an abyss yawned between legal theory and common practice. Marc Bloch (c.1944) has written that
Economic conditions precluded the exploitation of excessively large demesnes without the help of hired hands or workers maintained in the lord's household.13
How were these manpower needs, then, to be met? This was a situation which remained unresolved during the seventeenth and eighteenth centuries in British North America.
In 1569, it was resolved by in a court of common law that "England was too pure an Air for Slaves to breath in." 14 This highly ambiguous statement cuts right to the core of the dilemma facing Anglo-British law concerning slaves: does it mean that slavery is not to be tolerated among the English, or is it implied that slaves are not worthy of the same air free English people breath? Perhaps it was understood by some people to be both things at the same time. That conclusion nonetheless is of no assistance at all to a jurisprudence, which requires clear definitions.
Exactly this sort of contention over definition of slave legal status continued in precolonial English and Anglo-American courts over the succeeding centuries. In the case of Butts vs. Penny (1600), it was found that "there could be no Property in the Person of a Man ... but by Compact or Conquest,"15 a concept with clear connections to the Corpvs Jvris Civilis . But in the very next breath, the same court hastily added "that Negroes being usually bought and sold among Merchants, so Merchandise ... there might be property in them ...." 16 This will appear to be sheer hypocrisy to some observers. In fact it is completely in careful keeping with precedent oriented common law judgment which, when legal antecedent was lacking, looked to other sources for indications of social norm. In America, Roman code would prove to be such a source.
Many "well-bred" Southern gentlemen by the time of the late seventeenth through the nineteenth centuries, particularly those destined to be upper level judges, magistrates and legislators, were habituated by their education to Roman models and thought as well as to the works of Aquinas and More. This was simply part of the standard curriculum for the children of the elite for that age, passed down from the likes of those late medieval scholars. They must have known that the central article of Roman law regarding slaves was that they were inferior by nature. 17 They also knew that Roman masters had the right to punish slaves at will, no matter how important that slave might be socially. In theory, a solid cosmological wall separated Rome's slaves and citizens, wherein freedom was confined only to free men, as confirmed by the Senate in AD. 56, an act of which American legislators appear to have been aware. To set a slave free reflected upon the freedom of all Roman citizens, for the liberty of freedman must be defended by all in order to ensure the freedom of all. Thus, setting a slave free was a tremendous responsibility as well as a powerful prerogative ... risky indeed, but one Romans were prepared to take. Southern Anglo-Americans eventually and evidently would not be so ready. It took a while for Roman civil code to begin to effect the common law's dealings with slaves.
Another English court, 18 drawing on local practice, in 1682 found precedent supporting the property status of slaves in a judgment handed down in British India, but nevertheless found them by common law usage to be special cases, and handed them over to an administrator who was to see to their Christian conversion, and subsequent enfranchisement. Only toward the turn of the eighteenth century did attitudes toward slaves, especially in the West Indies, begin to harden on official account of their supposed reprobate heathenism. Legislators reinforced this judgment with long accepted biblical concepts, such as that of the God-punished OEebed or slave, condemned forever to servitude because of disbelief. Perhaps more realistically, strictures upon the slaves had been tightened simply because of their increased economic value as sugar plantation workers. The logical noose had begun to tighten on the neck of Anglo-American law.
The question of definable humanity in the slave continued to plagued the courts. Though his Negroes were impersonally "salable," an owner was not allowed arbitrarily to kill one "as he could an ox." 19 Indeed, in 1706 it was determined that "the common law takes no notice of negroes (sic) for being different from other men. By common law no man can have property in another, except in special instances ...."20 The opinion handed down by Sir Philip Yorke, Attorney-General of the realm at the end of 1729, stated that
a slave, by coming from the West Indies, either with or without his master, to Great Britain or Ireland, doth not become free; and that his master's property or right in him is not thereby determined or varied; and baptism doth not bestow freedom on him, nor make any alteration in his temporal condition in these kingdoms.21
This was an unfortunate decision, because by then American and British legal practice had already begun to diverge along the lines of economic expediency, supported by resort to Roman civil code. American courts in the South were to look more and more to Roman law concerning propertied interest for antecedents.
The common law, then, had become victim of its own flexibility, because in the search for legal precedent in dealing with slavery, jurists and legislators in the American colonies, as we shall see, ventured into the nightmare labyrinth of Byzantine-Roman legal code. The framers of the United States Constitution, many of them well versed in both English and classical Roman law, would leave open legal questions about federal regulation of slavery, thus fettering by reservation (if one may be permitted to use Hobbes' terminology) the development of effective federal policy toward slavery, and thus a uniform equality for all citizens. Legislation modeled on that of Rome was enacted mostly at the provincial level. In ignoring the discrepancy between love of liberty and the mercantile exploitation of human bondage, they were only emulating their philosophical and jurisprudent predecessors. The generation of Anglo-Americans born in the 1840's would pay the greatest price in blood for this hesitancy.
When, just prior to the Civil War, one of the foremost American jurists of the time, Thomas Reade Root Cobb of Georgia, inquired into the nature of legal status for slaves, he found himself forced to be an apologist for, even to dissimulate somewhat regarding what was still an unsettled dilemma. Cobb was a Southerner in favor of slavery, but at the same time a scholar concerned with intellectual honesty. In his evident discomfort, he resorted not unsurprisingly to the example of the Ancient world both for justification and for evidence of the advancement of slavery in the United States over what he termed the "absolute" slavery of Rome and Greece. In his significant study, An Inquiry into the Law of Negro Slavery in the United States of America (1858), Cobb argued that the Roman slave was not merely a res or chattel, but lacked all recognition as a person. While this was true for the condition of a person while still a Roman slave, Cobb ignores the fact that manumission was common in the extreme, and that recent freedmen were frequently assimilated to society at a very rapid pace. Furthermore, the Georgian jurist stoutly maintains that the African-American slave occupied "a double character of person and property," 22 very much as though this duality were evenly balanced. As the court cases reviewed in the sections following reveal, this was certainly not the case. Cobb also rather glibly observed that "the Colonies having adopted the common law, and Negro slavery having no existence in Great Britain, there could be necessarily no provision of that law in reference to it, and consequently the power of the master until limited by legislation was absolute." 23 Thus he appears both briefly and succinctly to dispose of the power of precedent in common law, its possible extension to the slaves, and the legitimacy of British decisions as any sort of precedent in American courts, even though certain rulings outlawing slavery in England predate the American rebellion and revolution. Finally, in Chapter VI, "Of Personal Liberty," Cobb states flatly that
the right of personal liberty in the slave is utterly inconsistent with the idea of slavery, and whenever the slave acquires this right, his condition is ipso facto changed .... So long as two races of men live together, the one as masters and the others as dependents and slaves, to a certain extent, all of the superior race shall exercise a controlling power over the inferior. 24
This was to be done (again, significantly, resorting to Roman code) via verberibvs flagellis, aliisqve pnis 25 ... that is, by means of beatings, whippings or any other similar form of violent and mutilative punishment or humiliation. Sociologically speaking, this then illustrates clearly that the South had become a society that was been compelled to resort to the use of coercive force because of the ultimate failure of law to support or enforce subservient behavior in slaves. The power of states rests on the threat and use of force "to maintain order and provide for the common good."26 On the one hand, seventeenth century English society employed more or less subtle and efficient forms of discrimination and bias designed to support the status quo ; on the other hand, it must be admitted that what legal restrictions there were upon the lower classes could be circumvented, and were not intended to subjugate, but to arbitrate between conflicting interests and protect English society as a whole against outside foes.27 If so, slaves might be set free if they were perceived as more valuable to the commonwealth in liberty than in bondage. This was not to be the case in the Anglo-American South.
Before one rushes to condemn Cobb for hypocrisy and perversion of the law, there is another factor to consider: the honorable Georgian jurist's formulation of a "dual status" for slaves is completely consistent with Roman legal concepts, then accepted as precedent in courts of common law. Further, a clear connection between the English and Roman systems existed in the concept of property, of "chattel" on the one hand and res on the other. Further, common law often considered labor and the laborer to be property.28 This was reinforced by the Common law's expressed need to distinguish between things capable of guilt and not capable of guilt.29 Because in common law liability was established by what had been judged liable before, due to the changeability of human condition, Southern jurists found it comparatively easy to synthesize from this mishmash of flexible common law definition and Roman authority used in place of precedent a supposedly, legally sound "dual status" for slaves.
The arrangement proved weak because, for many Christian Americans not versed in Roman jurisprudence, neither slavery not dual-status reflected divine intention. Religious and biblical supports for slavery were deemed narrow and thin, and Southern clerics were often perceived as having had to twist the scriptures in order to get the intended effects of subjugation required by the slave owners who paid their wages. Further legitimation for the system still being needed, force was used by Southern slave owners to make up for these legal and dogmatic weaknesses. The pretense of power latent in a state's legal authority, noted before, was forced to become manifest in the whip and branding iron, borrowed, not surprisingly, from Rome. This became obvious to many as secession and war approached, not only in the North but in Europe as well ... but not, by and large, in Dixie.
None of this is meant to imply that slavery in the British North American colonies or the new United States did not have unique characteristics, making it noticeably different from systems of compulsory servitude that went before. Even so, there were not only similarities but intentional evocations between Roman slavery in particular and that of North America. American jurists fell heir to legal concepts from Roman jurisprudence by way of the judgments handed down during the fifteenth and sixteenth centuries in the Byzantine, Latin and Islamic periphery of Europe: Byzantium and its Latin Empire, the Ottoman Balkans and Kievian Russia.30 Thus, it may be argued that there is a continuity of cosmology from the ancient Mediterranean world to the plantations of Dixie, wherein slaves were held to be slaves forever, utterly unable to perform that most critical act of freemen in common law, the making of free-will commitments, such as marriage or contracts. Slaves they would remained, born, bred and buried ... or might they not? Soon the fires of moral contentiousness over the dubious legitimacy of these laws would begin to smolder.
One last problem appears worth mentioning, but only through comparison of the long-term records of both England and the American colonies: an apparent relative lack in the latter of legally trained personnel. In England a separate specialized Court of Laws Merchant had existed since the mid-fourteenth century; solicitors and attorneys abounded in London and other provincial capitols who already specialized. Not so, transparently, in the American colonies. All briefs, at first, were heard by the same courts, staffed by people who too often had a rather rudimentary notion even of common law or legalistic spelling. In the proprietorships, it was a relatively straight forward matter of presenting one's case to the attention of the Grantee. In Virginia on the other hand, where independent government structures developed fairly early because of the failure of the Virginia Company and from imperial neglect, additional courts, often in some way appellate, were established in order to deal with contested decisions and stubborn cases. All mercantile briefs for a long time were heard by the same justices who decided murders and probate, and who had perhaps a better notion of what to do with the makers of mayhem and with sullen heirs than with rarefied definitions of humanity and legal status. Thus overwhelmed, it would be no wonder that some poorly trained judges might defer decision if possible, or rely on common social usage, than to risk error by dabbling in matters beyond their understanding. Thus, the establishment of disastrous precedent concerning trade in human flesh may have inadvertently been aided by the desire to avoid legal error.
Cases in Virginia, 1625 - 1789
A court held in Jamestown on 19 September, 1625 very carefully handled an enthralled Negro brought to its attention as an indentured servant.31 Those very early English colonists were acutely aware that they themselves had signed on as servants to the Virginia Company, which still existed in that year and to which they had a continuing contractual obligation. Certainly pro forma, as well as in favorem libertatis, they wished to impress the directors of the company with their ability to be civilized and just in a distant and presumably savage land. It was probably also the only and last time for hundreds of years that the Anglo-Americans of Virginia treated a recently arrived African as anything approaching a legal equal. They had, after all, come to America in the naked if rather naive hope of gain, and too many were determined to get away with whatever exploitation they could devise.
In fact, the first twenty "Negar" slaves had arrived from the West Indies in a Dutch vessel and were sold to the governor and a merchant in Jamestown in late August of 1619, as reported by John Rolfe to John Smith back in London.32 By 1625, ten slaves were listed in the first census of Jamestown. The first public slave auction of 23 individuals, disgracefully, was held in Jamestown square itself in 1638. What were to become the parameters and properties of the "peculiar institution" were defined in the Virginia General Assembly from about 1640 onwards. Negro indenture, then, appears to have been no more than a legal fiction of brief duration in Virginia. Black freedmen would live in a legal limbo until the general emancipation in 1864, unable to stand witness in their own defense against the testimony of any Euro-American. The General Court dispositions that appear after 1640 seem to support this contention. Barbados was the first British possession to enact restrictive legislation governing slaves in 1644, and other colonial administrations, especially Virginia and Maryland, quickly adopted similar rules modeled on it. Whipping and branding, borrowed from Roman practice via the Iberian-American colonies, appeared early and with vicious audacity. One Virginian slave, named Emanuel, was convicted of trying to escape in July, 1640, and was condemned to thirty stripes, with the letter "R" for "runaway" branded on his cheek and "work in a shackle one year or more as his master shall see cause."33 Shades of Rome! This was most certainly not a contractually obligated indentured servant, however oppressed but consistent with English common law, that could expect release from his contract after a time. Rather, this was an abject slave, subject to the court's definition of him as mercantable and movable "property," as chattel or res, and to his master's virtual whim. Indeed, the general assembly of Virginia in 1662 passed an act which directly and consciously invoked Justinian code: partvs seqvitvr ventram, whereby a child born of a slave mother was also held to be a slave, regardless of its father's legal status.34 A few years later, the population of Africans in bondage in Virginia reached about 2,000, and another statute (1667) established compulsory life servitude, de addictio according to Roman code, for Negroes ... slavery had become an official institution.35
But that same issue of personage versus bondage had not been silenced. While in 1671, a "negroe weoman" was included in a delivery of crops, as though she were part of a cargo of produce,36 the very next year an African named Edward Mozingo successfully sued the man to whom he had been indentured for twenty eight years, being declared " free to all Intents and Purposes."37 These cases, and others like them, seem to indicate that in the late seventeenth century, it was becoming customary under Anglo-Virginian common law to treat Africans according to the status they appeared to be possessed of when they came under the court's jurisdiction. Was that one brought in as a slave? Then it was only a piece of property, having no legal status in and of itself. Did this one come under contract to the colony? Then this person was potentially free, because of his or her power to make contract. Yet common practice and legislation was, as has been seen, already beginning to erode the freedman's rights. The court opinions began to express well concealed confusion. In April, 1674, a court concluded that
upon the Petition of Capt. John West ... Concerning A negro woman called black mary purchased by the said Administrators from Coll. John Vassall, It is ordered that the Said negroe woman returne to her service, And it is ordered that the Administrators ... with the first opportunity take Care to write to Coll. Vassall to know whether the said negroe woman was a Slave or free, and if Appeare she was noe slave when bought, then they to pay her for her Service what this Court shall Adjudge.38
Obviously, the judge for this case, in his uncertainty about what status to accord Mary, put the burden of proof on the men claiming ownership of her to show whether or not she was indeed "property." Careful examination of the wording of the judgment, however, reveals that the court was already biased (in keeping with Roman precedent in ivs gentivm, perhaps) toward the interests of the "owners;" it was upon Colonel Vassall's word alone that Mary's incipient liberty or endless enthrallment depended.
The next thirty-odd years, according to the cases cited in Catterall's study, witnessed a further astriction of legal opinion regarding slave status. In the view of Judge John Holloway in probate court of 29 March, 1718, a "Mulatto Girl Sue" and her children were treated as heritable property in which the executors had right of ownership " because it must immediately vest in somebody."39 There was never any question at all that it might vest in Sue herself ... she was purely property, because of "Virginia Law 1705,"40 and therefore without rights.
Though the matter appears to have deteriorated over the next fifty years, the issue of slave status still would not die. The cases of Gwinn v. Bugg (1769) and Howell v. Netherland (1770) had complicated judgments concerning the termination of indenture. Both involved misogyny and the confusion of legal status for the off-spring, with which legislative action in 1691, 1705, 1723, and 1753 had not dealt effectively. In both instances, the court ruled in favor of the plaintiffs suing for their freedom, though with evident reluctance and a desire that the legislature should resolve the matter of nati natorvm et qvi nascentvr ab illis, whereby the status of the grandchildren of misogynous unions could be determined with certainty.41 Otherwise, any slave was " distinguished as lands, the slave being worth as much as the ground he cultivates. For this reason our laws have put them on a footing with lands ...."42 There is a psychological symbolization expressed here as well as a legal opinion: the slave was no longer even upright like other human beings, but at one with "every creeping thing that creepeth upon the earth," to quote Genesis, 1: 26, in the Standard Authorized or "King James" Version.
When a certain Charles Moorman died in 1778, he started a series of litigations that would apparently go on for nine years: in his will, he sought to free his slaves. It was argued that the "laws of the land will not admit of such freedom,"43 and it took a special act of the commonwealth's general assembly in 1787 to carry out "the benevolent intentions of the said Charles Moorman," making them immediately free, as if born so; and their increase were also to be free. All under twenty-one and eighteen were to be free when they attained those ages, and the increase of those free at a future period were to be free with the parents ... This was ... pursued by a majority of the Court.44
What happened, to bring about what appears to be this legal anomaly, in a system that increasingly denied Negroes any humanity at all? Perhaps it was simply because of the fact that the gesture came from the commonwealth's legislature, to which the lower courts looked for guidance. Possibly, the law makers also wanted to signal solidarity with the libertarian ideals of the recently ended war of rebellion. In any case, the courts quickly returned to their accustomed modvs operandi.
Cases in Maryland, 1642 - 1784
On Munday 19th Sept. 1664 ... came a member from the lower howse that the upper howse would pleased to drawe up an Act obligeing negros to serve durante vita they thinking itt very necessary for the prevencion of the dammage Masters of such Slaves may susteyne by such Slaves pretending to be Christened And soe pleade the lawe of England.45
Before the day was out, the desired act was drawn up, amended and passed by both houses. Its language carefully avoided mention of the possible enfranchisement of slaves through conversion, but came down very hard on indentured Anglo-British women who wanted to marry African slaves: their children would not become free when her indenture was over, but would be slaves for life, in partvs seqvitvr ventram, "as their fathers were."46 This was only a couple of years after Virginia passed similar legislation. Yet for a very long time, Maryland court language was very careful to avoid the use of the word, "slave," even though a majority of the cases appear to be lawsuits involving the transfer of Negro servants and a great deal of tobacco as part of the awards. The legal establishment of slavery would take somewhat longer in Maryland than in Virginia, perhaps due to the mitigating influence of the Calverts, the Roman Catholic proprietors of Maryland, headed by their Lord Baltimore.
Although that law binding the slave children of indentured women was repealed by Lord Baltimore himself in 1681, to accommodate one of his family's favorite servant woman, "Irish Nell," her descendants, William and Mary Butler, were in 1770 defined as slaves. Nothing they could do by lawsuit appeared to be able to overcome the doctrine borrowed from Roman civil code that by then had come to prevail in most other slave-holding areas. Petitioners to the Provincial Court were more successful in the 1780's and 90's, but only if they could prove without stretching the rules of evidence too much that a fairly recent grandparent had been a free-born Europeans. Emancipation was a little more liberal in Maryland than in Virginia, in that light skinned slaves often had only to offer proof "by hearsay" that some ancestor had been free, and that slaves could be liberated "by intention" in their owner's wills, even though certain qualifications had not been met. Nevertheless, it was the effort of some legislators to distance their province from the provisions of the original charter granted to Sir George Calvert, that colonial law and custom should "be agreeable to the rights and customs of England."47 Slavery never became institutionalized in England as it did in Maryland or Virginia, where what amounted to a slave code in the rigid Roman style was to grow up that often conflicted with the spirit of precedence in common law.
Indian slavery seems to have occupied most of the attention of the courts in Maryland's first decades, much more so and later than Virginia, although Negro slaves were about as well. Very early, all "servants" appear to have been classed with livestock, if the abundance of lawsuits and bonds are to be believed. The function of the courts seems to have been a much more forthright exercise in common law. Perhaps this is because Maryland was a poorer province than Virginia, or because most early courts were presided over by one of the Calverts.
An appalling case of the killing of a defiant slave via verberibvs flagellis, aliisqve pnis in 1658, described in some detail in the record of testimony,48 attracted an official inquiry and fine by the colony's proprietors. The point made was that the slave had been treated with excessive brutality by his master, and that the court found this reprehensible. Certainly, Africans in Maryland, slave or free, were held responsible for murder, and likewise (as in England and Virginia) a European could not kill an African without penalty.49 But did such decisions establish legal status for slaves? The record up until the year 1665, as set down by Catterall, is not at all clear.
A significant enactment in October of that year by proclamation of Philip Calvert established "that noe person ... shall trade barter, commerce or game, wth (sic) any servant, except hyred servants, within this Province, without Lycence first had ... from [ their ] master."50 This is the first clear indication in these records that slaves were denied the right to make contract, and thus lacked one of the primary attributes of freedman status.
Edward English, a Negro slave, exhibited his petition for freedom to the Baltimore County Court in May, 1681.51 His case represents an interesting reinforcement of what has been revealed before in this study: his translation from slave to freedman depended upon the establishment of a contract he had made with a man who inherited him. The language of the disposition is very careful and specific. Whereas in Virginia, English's capacity to make contract in the first place would probably have been denied, and the case dismissed, the Baltimore court, surprisingly, responded by classifying English an "Orphan," and freeing him! This, however, was in keeping with the spirit of common law, clearly showing how human freedom in Maryland at least, in those days, could be dependent on an act of personal sovereignty, such as the making of a legal commitment.
In the 1680's, the courts became less squeamish about employing the word, "slave," regarding Negro bondsmen. This occurred in connection with the commission of heinous crimes, where the punishment became life servitude as slave. It also seems to have been coincident with a more forthright treatment and appraisal of African slaves as chattels. Ann Smith, "a Spinster," was condemned to death in December of 1696 for the murder of a Negro boy ... but was reprieved.52 The next year, what seems to be an African-European couple and their "mulatto" child were sold and fought over, without any regard for their possible legal rights.53 Thus, as the century turned, any rights Negroes had under the relatively liberal administration of the Calverts in the seventeenth century drained away into the abyss of economic expediency. Even the names of individual slaves, noted previously as a matter of course, begin to vanish from the dispositions.
The rate of incidence in crime punishable by death among the slaves also began to rise, according to Catterall's collection. Whereas most cases before the courts previous to 1700 had been lawsuits, the next ninety years saw a definite increase in the number of slaves condemned to death. Death sentences for African bondsmen increased almost four-fold from the 1740's through the 1760's, from 7 instances to 26, a rise of nearly 371%. During the same period, there were no death warrants issued for slaves only 33.3% of the time: for five years in the 1740's, three in the '50's and two in the '60's. The decade average rose from below .7 warrants issued at the end of the 1730's to almost three by 1770. Sixteen out of thirty years saw two or more slaves executed for their crimes. This represents far more cases in Catterall's Judicial Cases for Maryland than those of masters condemned in any way for harming their slaves.
One is tempted to wonder if the increase in slave crime was in response to the loss of what little legal status they had enjoyed before, and the insensitivity with which they were traded. There was, in fact, a statute enacted in 1752 that denied the validity of manumissions executed in the master's last illness, but otherwise there is no indication of the truth of such speculation in Catteral's work.
By a remarkable decision in 1760 concerning a Guinea native named "Captain Gray," the court opined his complaint groundless, that he could not be a slave because he was a freeman stolen from the African coast.54 Even though his status there may have been classified as free, nevertheless because of a theft he committed on board the slave ship as he was delivering others into bondage, he was not redeemed by his employer in Guinea. This reinforced the precedent of slavery-as-punishment established earlier in the century in Maryland. It was also a further erosion of legal status, in that it accepted uncritically as precedent the supposed common practice of Guinea chieftains, in ivs gentivm one supposes, of selling thieves into slavery.
Seven years later, a key opinion was handed down wherein the estates of two mulatto brothers were declared escheatable because they were considered bastards, even though their parents had been married and they themselves had attained freedom. Even so, the judge assumed that the parents had been slaves, and, falling back again on Roman civil code as so many Virginia jurists had already, declared that since slaves were incapable of contracting marriage, that their offspring thus "had no civil capacities to take by purchase, or take or transmit by descent, whilst in their original state of slavery."55 Not only had slave rights been eliminated, but freedmen's rights of contract and ownership were now to be in jeopardy.
One surprise remained in the century. Mary, a slave living in 1791, petitioned the courts for her freedom, and won. The victory for her must have been particularly sweet, for as the daughter of William and Mary Butler (page 17) she was thus the direct descendent of Irish Nell. She, whose parents had been forced back into enthrallment in 1770, finally achieved the status that Lord Baltimore had wanted for all of Nell's posterity.56 Most other slaves, by the turn of the nineteenth century, were not to be so fortunate; only two others were granted their freedom by the courts before 1800.
Summary
The landmark judgment in the case of Somerset v. Stewart in England, decided by Lord Mansfield in June of 1772, declared:
the state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only by positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory: It's so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from a decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.57
Thus slavery could not exist in England, regardless of socioeconomic implications, and the final push for statutory abolition began, culminating a half century later an the empire-wide ban. But in America, by 1789, this decision appears to have had little effect, in spite of the expressed delight of anti-slavery Quakers. The statutory legal structure built up over the past century and a half effectively restricted the liberating benefits of common law to Euro-Americans exclusively. The Negro slaves had by 1790 reached their full definition as dehumanized marketable commodities. A lawsuit in that year, in Virginia, apparently was brought for satisfaction in the transfer of a group of "11 negroes belonging to Benjamin Pynes ... i (sic ) saw them when down the country, and offered him 330 pounds for the whole."58 This sounds more like a trade in dry goods or agricultural products than in human lives, and there is no reason to believe that the participants in this transaction saw it as anything but a simple and straight-forward, absolutely amoral business deal.
The slave in the new United States of America was now legally indeed and irredeemably a Thing, not a person. Testimony from only one Caucasian witness was needed to convict a slave, who was not able to act in his or her own defense. English common law, as practiced in America, had been made to accommodate incompatible Roman civil code as precedent. The expedient and convenient Roman concept of "res" had (in spite of Cobb's legal objection to the contrary) been accepted completely in socioeconomic common practice, in ivs gentivm, and the courts supported the institution.
In thus eliminating the slave's right to exercise free-will, and replacing it with a "dual status," Southern jurists said, in effect, "slave, your body and its capacity to labor, de addictio and in partvs seqvitvr ventram, do not belong to you. Yet we are forced because of various circumstances, especially in favorem libertatis et de spiritvm inhærens natvrale, to recognize that you are apparently possessed of free-will that you are capable of using. Should you choose to seize control of this body for your own purpose in the commission of a crime (such as stealing that body from its owner by attempting escape, or by using it to kill another body) you will be held responsible for that crime. Correction will be brought about via verberibvs flagellis, aliisqve p nis, to the extent that in some instances the body may be executed, that the ill-choosing free-will may be removed from the presentation of threat to ordered society." Hypocritical, erroneous or just plain unwieldy this logic may be, but it is hoped that this study has given an indication of the long process by which such reasoning developed and was supported in the slave holding provinces of British North America.
The institution of slavery in the United States of America appears to have been continuous with that of ancient Rome, by way initially of the Byzantine Empire which passed its practice and laws concerning slavery on to the Iberian nations before its demise in 1451. Through enslavement of American aborigines de conquisitvs and Guineans de contractvs after a fashion, the practice was spread to other Europeans who wanted to profit from the lucrative trade to the monstrous operations in Iberian America. The institution spread laterally and rather slowly to the east coast of North America, where it came in contact and conflict with English common law. To support the spread by socioeconomic infiltration of slavery, American jurists quite logically appealed to the civil law of Rome when they found precedent lacking in common law, even though legal scholars back in England came to a different conclusion.
By 1800, anyone living in the southern United States with a high concentration of epidermic melanin was assumed a slave, unless by more or less difficult documentation that person could prove conclusively otherwise. The continuing uncertainty of the common law demanded the exposure of such proof. But even though slaves suffered horribly, it was the logical noose on the Anglo-American law's neck that tightened the hardest. Eventually, a subconscious recognition of the unworkable nature of "dual status" prompted extreme paranoid defensiveness in some southern Anglo-Americans. This disease would not be relieved soon, and then, only by the coincidence of gory cultural self-mutilation inflicted by civil war, some of whose helotist seeds were planted ages before northern Europeans ever reaped such noisome fruits on North American shores.
Notes
[full references are given in the bibliography]
1. Holmes, 21 - 222. Ariès, 613. Davis, 324. ibid., 835. Jolowicz, 2 - 46. Justinian, 2: I, 1, 37. ibid., 2: I, 1, 48. Watson, 9 - 149. Kirschenbaum, 31 - 8810. Davis, 32.11. ibid., 10312. Brackett, 5113. Bloch, quoted in Dockès, 14214. HTC, I, 915. Davis, 3116. ibid.17. Ariès, 5918. Davis, 3119. ibid., 1120. ibid.21. ibid., 1222. Cobb, quoted in Rose, 19823. ibid., 20024. ibid., 20525. ibid.26. Zanden, 221 - 22227. ibid., 222 - 328. Nelson, 5029. Holmes, 21-230. Davis, 3131. HTC, I, 7632. Robinson, 1333. HTC, I, 7734. Greene, 12635. Whitfield, 336. HTC, I, 7937. ibid.38. ibid., 8039. HTC, I, 8140. ibid.41. ibid., 89-9042. ibid., 9343. ibid.44. ibid., 93 - 445. HTC, IV, 146. ibid., 247. Brackett, 2648. HTC, IV, 11-1249. ibid., 1950. ibid., 2051. ibid., 2752. ibid., 3153. ibid., 3254. ibid., 41-255. ibid., 4756. ibid., 49 - 5057. HTC, I, 1558. ibid.,95
Bibliography
Primary Sources
Catterall, Helen Honor Tunnicliff. Judicial Cases Concerning American Slavery and the Negro, vol. I, Cases from the Courts of England, Virginia, West Virginia, and Kentucky, and vol. IV, Cases from the Courts of New England, the Middle States, and the District of Columbia. Washington, D. C. : Carnegie Institution of Washington, 1926 & 1936. [ abr. in NOTES as "HTC, I" and "HTC, IV".]
Cobb, Thomas R. R. An Inquiry into the Law of Negro Slavery in the United States of America. Philadelphia : T. & J. W. Johnson & Co, 1858. Excerpted in Rose (see below).
Justinian I, "The Great" (483 - 565 AD). The Digest of Justinian. Latin text edited by Theodor Mominsen and Paul Krueger; English translation edited by Alan Watson.v. I. Baltimore: Johns Hopkins University Press, 1985.
Reinsch, Paul Samuel. "English common law in the American colonies." Ph.D. dissertation, University of Wisconsin, 1889. NY : Da Capo Press, 1970.
Secondary Sources
Ariès, Phillipe and Georges Duby. A History of Private Life, vol. I, From Pagan Rome to Byzantium. Edited by Paul Veyne, translated by Arthur Goldhammer. Cambridge, MA : Belknap Press of the Harvard University Press, 1987.
Berger, Peter L. Sociology : a biographical approach. NY : Basic Books, Inc., 1972.
Bloch, Marc Leopold Benjamin. Feudal Society (La Societe Feodale. La formation des liens de dependance. Les classes et la gouvernment des hommes). Chicago : University of Chicago Press, 1961.
Brackett, Jefferey Richardson. The Negro in Maryland : a study of the institution of slavery. Freeport, NY : Books for Libraries Press, 1969.
Bridenbaugh, Carl. Jamestown. New York, NY : Oxford University Press, 1989.
Chase, Harold W., editor. The Guide to American Law : Everyone's Legal Encyclopedia. St. Paul, MN : West Publishing Co., 1983
Davis, David Brion. The Problem of Slavery in Western Culture. Ithaca, NY : Cornell University Press, 1966.
Dockès, Pierre. Medieval Slavery and Liberation (La liberation medievale). Chicago : University of Chicago Press, 1982.
Finley, Moses I. Ancient Slavery and Modern Ideology. NY : Penguin Books, 1983.
Greene, Lorenzo Johnston. The Negro in Colonial New England. NY: Athaneum Press, 1971.
Hofstadter, Richard. America at 1750 : A Social Portrait . New York, NY: Vintage Books / Random House, 1973.
Holmes, Oliver Wendel. The Common Law. Boston : Little, Brown and Co., 1938.
Jolowicz, Herbert Felix. Roman Foundations of Modern Law. Oxford : Clarendon Press, 1957.
Kirschenbaum, Aaron. Sons, Slaves and Freedmen in Roman Commerce. Washington, DC : Catholic University of America Press, 1987.
McColley, Robert. Slavery and Jeffersonian Virginia. Urbana : University of Illinois Press, 1964.
Mullin, Gerald W. Flight and Rebellion : slave resistance in eighteenth-century Virginia. NY : Oxford University Press, 1972.
Nelson, William Edward. Americanization of the Common Law : the impact of legal change on Massachusetts society, 1760 - 1830. Cambridge, MA : Harvard Unioversity Press, 1975.
Ostrogorsky, George. History of the Byzantine State (1940). Tranlated from the German by Joan Hussey, with a forward by Peter Charanis. New Brunswick, NJ : Rutgers University Press, 1957.
Robinson, Donald L. Slavery and the Structure of American Politics, 1765 - 1820. NY: Harcourt, Brace Jovanovich, 1971.
Rose, Willie Lee Nichols. A Documentary History of Slavery in North America. NY: Oxford University Press, 1976.
Watson, Alan. Roman Slave Law. Baltimore : Johns Hopkins University Press, 1987.
Whitefield, Theodore Marshall. Slavery Agitation in Virginia, 1829 - 1832. NY : Negro Universities Press, 1930.
James vander Zanden. Sociology : the Core. NY : McGraw - Hill., 1986.
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Securing the Leg Irons: Restriction of Legal Rights for Slaves in Virginia and Maryland, 1625 - 1791
Slavery In Early America's Colonies:Seeds of Servitude Rooted in The Civil Law of Rome
by Charles P.M. Outwin
Introduction
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First devised during the late seventeenth and early eighteenth centuries, the laws and justice system governing the institution of Negro slavery in the British North American colonies of Virginia and Maryland constituted but one element in a complex matrix of coercive instruments designed for suppression of legal humanity in slaves. Other more "spontaneously" oppressive cultural devices, such as distortion of religious doctrine or implementation of arbitrary ethical values, stand (because of their typical logical vagueness) in marked contrast to the law, which requires definitive legal status for social entities that are to be governed by established rules and norms of social conduct.
The road to legal definition of slavery was not smooth. The English "common law," which formed the basis for all Anglo-British and Anglo-American legal practice in the seventeenth and early eighteenth centuries, was a system that sought to establish liability through precedent of what had been held liable in previous instances, distinguishing between entities that were capable of guilt and those that were not.1 These entities are either possessed of legal existence as persons with rights, or they are things created, possessed, and disposed of by legal persons, actual or fictional. In other words, it was at least in major part an issue of the assignment of the right of choice, of a right to exercise free-will. It was this problem in definition of legal status that appears to have been at the heart of law and legalities regarding Negro slaves in Anglo-British colonial America; the job was not easy, and full of fatal logical pitfalls.
A slave auction in which black families were often broken up when sold to slave buyers. Copyright Chicago Historical Society
If there was any change of status regarding humans held in servile bondage in the laws of England, Virginia and Maryland during the colonial period, 1625 - 1789, then such development ought to be evident from examination of court records. Not only that, but it should also be fairly simple to trace precedent leading up to the establishment of "the peculiar institution," especially by means of the analysis of documentation evincing the denial of the slaves' personal legal sovereignty in such liberties as the power to make contract. Finally, some indication ought to emerge of the dynamic synthesis attempted by Southern jurists between rigid Roman Corpus Jvris Civilis and mutable common law practice.
During the period of nearly two centuries between 1605 and 1789, Englishmen living in America increasingly came to rely on Roman civil code for the legal support of slavery. Even so, having realized this, it is also very important to understand that this was not by any means the entire philosophical basis of the slavery imposed on Africans by Europeans. Indeed, legality was only a very small portion of the overall socioeconomic justification for slavery, relying as it did on a complicated system of beliefs that is not within the scope of this paper to address.
Rather, dispositions from Maryland and and Virginia, as presented in Helen Honor Tunnicliff Catterall's Judicial Cases concerning American Slavery and the Negro (1926 & 1936) are examined and compared for some indication of developments concerning the legal status of Negro slaves in those Anglo-British colonies. Remarkably, no biographical notes about Mrs. Catterall could be found, except her dates (1870 - 1933) and the fact that she was married to a now obscure professor of English, Ralph Charles Henry Catterall ( d. 1916). Few works referenced her study reference could be found to critiques of her work or resource to it in bibliographies attending other studies of American slavery.
Very considerable space is devoted to the creation of an historical Roman, medieval European and English context for the succeeding discussion of the judicial cases in Virginia and Maryland collected by Catterall. The majority of court records she exhibits for the seventeenth and eighteenth centuries in those colonies are lawsuit and probate. There is a serious hiatus in Maryland's official legal documents between 1771 and 1783. That colony also had manifestly far fewer slaves than Virginia. Nevertheless, Maryland has been chosen for comparison with Virginia both because of the age of its records concerning slavery and for its proximity to the other colony, with which (at first, at least) it was at some philosophical and legal variance, including the issue of slave status.
The Roman, Medieval European and English Legal Background
Some scholars might find it objectionable to refer to Roman precedent in the development of Anglo-American slave law during the early colonial period because of an assumed irrelevance of ancient issues to modern situations. In fact, English and Anglo-colonial magistrates had received educations steeped in neoclassical humanism. The seventeenth and eighteenth centuries could arguably be said to be the height of the Renaissance, when Latin and Greek learning penetrated to far corners of general education. Thus thoroughly educated in the thought processes of Republican and early imperial Romans, many American legal scholars learned entire speeches from Marcvs Tvllivs Cicero by heart and had whole blocks of il Corpvs Jvris Civilis committed to memory in the original language. Orators sought to emulate Roman rhetoric, legislators struggled to develop statutes worthy of Roman law and judges aspired to the clarity of Roman jurisprudence.
Certainly there are peculiar similarities between Roman and American practices concerning slavery. Even the same term was applied, in translation, to male slaves of all ages: "pver," in Latin, "boy," in English.2 Slaves were classified in the Roman legal code as "res," that is, "movable property," a concept a little too conveniently close to the English legal concept of "chattel." This it held in common with other ancient slave systems, from pharonic Egypt through Mesopotamia to India and China.3
Thus, the jurists of both Rome and Dixie felt comfortable in describing the legal condition of slaves, following the example of such jurists as Florentinvs and Vlpian,4 as one of "dual status." This was completely consistent with the Roman legal concepts of dvplex interpretatio, "double interpretation," and in vtramqve partem, "argument from both sides of a question."5 This accepted duality in Roman legal practice is best illustrated by the essential contrast between ivs natvrale and ivs gentivm. Roman civil code, even in its most important revisions by Justinian I (527 - 565 A.D.) and Leo VI (886-912 A.D.) "the Sage" of the Macedonian Dynasty, remained ultimately pagan in that it dealt with what was understood to be immutable physical conditions, devoid of salvation by grace or divine charity, except as described below. Liability was established by means of authoritative, even omniscient pantocrator ("pantocrator" or "all-ruler") declaration ... the law itself was thus divine. Roman reasoning stemmed from the assumption that ivs natvrale, the law of nature, was the source of all justice. Under ivs natvrale, according to the jurist Florentivs (c. 150 AD), "est hominem homini insidiari nefas esse," which is to say, "it is a grave wrong for one human being to encompass the life of another."6 All physical or mortal conditions, therefore, including those of humans, were immutable because they had been so ordained by nature, except in the wondrously omnipotent act of manv missio,7 the "stretching forth of the hand" by a remarkably powerful individual, such as (in theory) an aristocratic master or the emperor. Power had everything to do with the gesture of manumission. Later, Christian charity was attached to it, but was still secondary to the indulgence in a feeling of sovereign potency for those who exercised manumission. Slavery was tolerated, not merely because of ivs gentivm, which was held to be entirely separate from ivs natvrale ... "everybody else is doing it," even though it was clear that slavery was somehow wrong, but because manumission was an important artifact in Roman religiocultural doctrine. It was, then, the body of Roman civil law, especially the Corpvs Jvris Civilis Jvstiniani, to which the courts of colonial Virginia and Maryland were to directly refer for precedential support in the establishment of slavery.8 Even the notion of slavery as a "peculiar institution" translates with ease into Latin, as pecvlivm institvtio, and would not have been incomprehensible to Roman jurists of the middle and late empire.9
Plantation slavery and urban slavery existed in Rome, although the latter attained a more advanced and long lasting state there than in North America. American slaves had social functions similar to those of Rome, even extending to the assignment of positions in skilled craftsmanship, concubinage and domestic management. Like Christianity in America or Confucianism in China, Roman-style Stoicism as practiced by such adherents as Seneca10 sought to exert a humane influence on some aspects, sometimes, of the day-to-day administration of the institution, but none succeeded in ameliorating the basic inhumanity of slavery.
On the other hand, American slaves never achieved exalted status as governmental bureaucrats, corporate stewards or legal functionaries ... but this may be attributable to the fact that, by comparison, American slavery as an institution did not last anywhere near as long as that of Rome or the Byzantine empire that inherited and perpetuated it to the very end in 1453 A.D., only thirty nine years before Cristobal Colombo sailed on his first voyage to the New World. Neither did Dixie ever achieve as liberal a level of manumission and social transformation for freedmen as Rome did, in spite of any racial considerations. Roman slavery as an established, viable institution was already more than six hundred years old by the time the empire first came to be. American slavery, in comparison to that practice in the Mediterranean region or China, never attained the social development whereby slaves were incorporated into every sector of society. The civilization of the American South up until 1860, though gracious, remained primarily agrarian and rustic, in spite of the existence of such comparitively modest urban centers as New Orleans, Richmond and Charleston ... and had a long way to go before emulating the impact of imperial China or Rome.
Slavery in the early Middle Ages of north-western Europe (coexisting with the legally somewhat less onerous serfdom) was more similar to the agrarian form familiar in the United States, but in England and France the practice faded away between c. 1100 and c.1350. Throughout the period, slaves on the European mainland remained legal Things, in conformity with the remnants of Roman civil code, and as demonstrated in the Spanish Code de Tortosa (1272). They were also believed under the influence of Christianity, to be possessed of a salvageable soul which could only theoretically attain human status through conversion.11 Thus, although native slavery virtually disappeared after the depredations of the Black Death, Christian Iberians began again to keep unconverted Moors and Africans as slaves at the close of the fifteenth century. 12 The northern Spanish and Portugese of Barcelona and Lisboa, along with the Italian Genoese and Venitians had come into contact with the laws and customs of revered Constantinople via the Mediterranean trade routes, and tried to emulate her style. When Byzantium at last fell to Muhammed II and his Ottoman Turks, her philosophers and legates fled not only to Venice, Florence, Milan, Paris, Rome and Palermo, but to Barcelona, Madrid and Seville as well. Much of the devolping laws for the newly powerful principalities of Aragon and Castille depended upon the wisdom and guidance of expatriate Byzantine jurists. Soon, the newly united Spain would bring its version of Roman civil code, including that regarding slaves, to America.
Even so, slavery was not an open-and-shut case in late medieval Europe. Earlier, Thomas Aquinas (c. 1256) offered arguments that, because it was not present in man's original sinless state, that slavery could not be in the soul's best interest. Though slavery, in other words, ran contrary to free will in his estimation, Aquinas subscribed to the prevailing cosmology of a hierarchically ordered universe and social order, and acquiesced to the Canon Law acceptance of slavery, mitigated only by conversion and baptism. In England, the friend of Henry VIII's youth, Sir Thomas More (1516), incorporated an acceptance of slavery into his Utopia, although he believed himself to be describing a perfect English society.
The basic contradiction between the twin bodies of Roman natural and national legal theory was intensified by their contact with English common law. This system (by contrast to Roman concepts of rigid stasis) originated in primitive Anglo-Saxon Germanic tradition that understood all reality to be in a state of never-ending flux, thus producing a changeable physical and social order. One need only examine such early Anglo-Saxon literature as The Wanderer (c.800 AD) or The Ruin (c. 600) to appreciate the truth of this statement. Such a condition made the English common law system amenable not only to constant in promptv revision, but also to the Christian doctrines of free-will and charity. It is only logical that the clash between Roman code and the common law over slavery in the American setting should therefore produce intense debate over three centuries regarding the a relative weakness of some sort of "dual status" before the law for Negro slaves.
Jurisdiction over slaves had been left by ancient Roman judges by and large in the hands of the slave owners. This arrangement would have suited most post medieval Anglo-Americans in the southern colonies and states well, ... had it not been for the fact that Roman and British practices differed strikingly in their formulations. Whereas Roman law was generally conceived as rigidly authoritarian code, British law usually followed the ancient Germanic practice of relying on an accumulation of malleable precedent. Thus, British law (in its primitive form at least, regardless of the ancient Romano-Germanic concept of "servi" or servant-obligation) was subject to constant revision, and, as a consequence, so was definition of legal status. Roman civil code evinced no such flexibility.
Thus, an abyss yawned between legal theory and common practice. Marc Bloch (c.1944) has written that
Economic conditions precluded the exploitation of excessively large demesnes without the help of hired hands or workers maintained in the lord's household.13
How were these manpower needs, then, to be met? This was a situation which remained unresolved during the seventeenth and eighteenth centuries in British North America.
In 1569, it was resolved by in a court of common law that "England was too pure an Air for Slaves to breath in." 14 This highly ambiguous statement cuts right to the core of the dilemma facing Anglo-British law concerning slaves: does it mean that slavery is not to be tolerated among the English, or is it implied that slaves are not worthy of the same air free English people breath? Perhaps it was understood by some people to be both things at the same time. That conclusion nonetheless is of no assistance at all to a jurisprudence, which requires clear definitions.
Exactly this sort of contention over definition of slave legal status continued in precolonial English and Anglo-American courts over the succeeding centuries. In the case of Butts vs. Penny (1600), it was found that "there could be no Property in the Person of a Man ... but by Compact or Conquest,"15 a concept with clear connections to the Corpvs Jvris Civilis . But in the very next breath, the same court hastily added "that Negroes being usually bought and sold among Merchants, so Merchandise ... there might be property in them ...." 16 This will appear to be sheer hypocrisy to some observers. In fact it is completely in careful keeping with precedent oriented common law judgment which, when legal antecedent was lacking, looked to other sources for indications of social norm. In America, Roman code would prove to be such a source.
Many "well-bred" Southern gentlemen by the time of the late seventeenth through the nineteenth centuries, particularly those destined to be upper level judges, magistrates and legislators, were habituated by their education to Roman models and thought as well as to the works of Aquinas and More. This was simply part of the standard curriculum for the children of the elite for that age, passed down from the likes of those late medieval scholars. They must have known that the central article of Roman law regarding slaves was that they were inferior by nature. 17 They also knew that Roman masters had the right to punish slaves at will, no matter how important that slave might be socially. In theory, a solid cosmological wall separated Rome's slaves and citizens, wherein freedom was confined only to free men, as confirmed by the Senate in AD. 56, an act of which American legislators appear to have been aware. To set a slave free reflected upon the freedom of all Roman citizens, for the liberty of freedman must be defended by all in order to ensure the freedom of all. Thus, setting a slave free was a tremendous responsibility as well as a powerful prerogative ... risky indeed, but one Romans were prepared to take. Southern Anglo-Americans eventually and evidently would not be so ready. It took a while for Roman civil code to begin to effect the common law's dealings with slaves.
Another English court, 18 drawing on local practice, in 1682 found precedent supporting the property status of slaves in a judgment handed down in British India, but nevertheless found them by common law usage to be special cases, and handed them over to an administrator who was to see to their Christian conversion, and subsequent enfranchisement. Only toward the turn of the eighteenth century did attitudes toward slaves, especially in the West Indies, begin to harden on official account of their supposed reprobate heathenism. Legislators reinforced this judgment with long accepted biblical concepts, such as that of the God-punished OEebed or slave, condemned forever to servitude because of disbelief. Perhaps more realistically, strictures upon the slaves had been tightened simply because of their increased economic value as sugar plantation workers. The logical noose had begun to tighten on the neck of Anglo-American law.
The question of definable humanity in the slave continued to plagued the courts. Though his Negroes were impersonally "salable," an owner was not allowed arbitrarily to kill one "as he could an ox." 19 Indeed, in 1706 it was determined that "the common law takes no notice of negroes (sic) for being different from other men. By common law no man can have property in another, except in special instances ...."20 The opinion handed down by Sir Philip Yorke, Attorney-General of the realm at the end of 1729, stated that
a slave, by coming from the West Indies, either with or without his master, to Great Britain or Ireland, doth not become free; and that his master's property or right in him is not thereby determined or varied; and baptism doth not bestow freedom on him, nor make any alteration in his temporal condition in these kingdoms.21
This was an unfortunate decision, because by then American and British legal practice had already begun to diverge along the lines of economic expediency, supported by resort to Roman civil code. American courts in the South were to look more and more to Roman law concerning propertied interest for antecedents.
The common law, then, had become victim of its own flexibility, because in the search for legal precedent in dealing with slavery, jurists and legislators in the American colonies, as we shall see, ventured into the nightmare labyrinth of Byzantine-Roman legal code. The framers of the United States Constitution, many of them well versed in both English and classical Roman law, would leave open legal questions about federal regulation of slavery, thus fettering by reservation (if one may be permitted to use Hobbes' terminology) the development of effective federal policy toward slavery, and thus a uniform equality for all citizens. Legislation modeled on that of Rome was enacted mostly at the provincial level. In ignoring the discrepancy between love of liberty and the mercantile exploitation of human bondage, they were only emulating their philosophical and jurisprudent predecessors. The generation of Anglo-Americans born in the 1840's would pay the greatest price in blood for this hesitancy.
When, just prior to the Civil War, one of the foremost American jurists of the time, Thomas Reade Root Cobb of Georgia, inquired into the nature of legal status for slaves, he found himself forced to be an apologist for, even to dissimulate somewhat regarding what was still an unsettled dilemma. Cobb was a Southerner in favor of slavery, but at the same time a scholar concerned with intellectual honesty. In his evident discomfort, he resorted not unsurprisingly to the example of the Ancient world both for justification and for evidence of the advancement of slavery in the United States over what he termed the "absolute" slavery of Rome and Greece. In his significant study, An Inquiry into the Law of Negro Slavery in the United States of America (1858), Cobb argued that the Roman slave was not merely a res or chattel, but lacked all recognition as a person. While this was true for the condition of a person while still a Roman slave, Cobb ignores the fact that manumission was common in the extreme, and that recent freedmen were frequently assimilated to society at a very rapid pace. Furthermore, the Georgian jurist stoutly maintains that the African-American slave occupied "a double character of person and property," 22 very much as though this duality were evenly balanced. As the court cases reviewed in the sections following reveal, this was certainly not the case. Cobb also rather glibly observed that "the Colonies having adopted the common law, and Negro slavery having no existence in Great Britain, there could be necessarily no provision of that law in reference to it, and consequently the power of the master until limited by legislation was absolute." 23 Thus he appears both briefly and succinctly to dispose of the power of precedent in common law, its possible extension to the slaves, and the legitimacy of British decisions as any sort of precedent in American courts, even though certain rulings outlawing slavery in England predate the American rebellion and revolution. Finally, in Chapter VI, "Of Personal Liberty," Cobb states flatly that
the right of personal liberty in the slave is utterly inconsistent with the idea of slavery, and whenever the slave acquires this right, his condition is ipso facto changed .... So long as two races of men live together, the one as masters and the others as dependents and slaves, to a certain extent, all of the superior race shall exercise a controlling power over the inferior. 24
This was to be done (again, significantly, resorting to Roman code) via verberibvs flagellis, aliisqve pnis 25 ... that is, by means of beatings, whippings or any other similar form of violent and mutilative punishment or humiliation. Sociologically speaking, this then illustrates clearly that the South had become a society that was been compelled to resort to the use of coercive force because of the ultimate failure of law to support or enforce subservient behavior in slaves. The power of states rests on the threat and use of force "to maintain order and provide for the common good."26 On the one hand, seventeenth century English society employed more or less subtle and efficient forms of discrimination and bias designed to support the status quo ; on the other hand, it must be admitted that what legal restrictions there were upon the lower classes could be circumvented, and were not intended to subjugate, but to arbitrate between conflicting interests and protect English society as a whole against outside foes.27 If so, slaves might be set free if they were perceived as more valuable to the commonwealth in liberty than in bondage. This was not to be the case in the Anglo-American South.
Before one rushes to condemn Cobb for hypocrisy and perversion of the law, there is another factor to consider: the honorable Georgian jurist's formulation of a "dual status" for slaves is completely consistent with Roman legal concepts, then accepted as precedent in courts of common law. Further, a clear connection between the English and Roman systems existed in the concept of property, of "chattel" on the one hand and res on the other. Further, common law often considered labor and the laborer to be property.28 This was reinforced by the Common law's expressed need to distinguish between things capable of guilt and not capable of guilt.29 Because in common law liability was established by what had been judged liable before, due to the changeability of human condition, Southern jurists found it comparatively easy to synthesize from this mishmash of flexible common law definition and Roman authority used in place of precedent a supposedly, legally sound "dual status" for slaves.
The arrangement proved weak because, for many Christian Americans not versed in Roman jurisprudence, neither slavery not dual-status reflected divine intention. Religious and biblical supports for slavery were deemed narrow and thin, and Southern clerics were often perceived as having had to twist the scriptures in order to get the intended effects of subjugation required by the slave owners who paid their wages. Further legitimation for the system still being needed, force was used by Southern slave owners to make up for these legal and dogmatic weaknesses. The pretense of power latent in a state's legal authority, noted before, was forced to become manifest in the whip and branding iron, borrowed, not surprisingly, from Rome. This became obvious to many as secession and war approached, not only in the North but in Europe as well ... but not, by and large, in Dixie.
None of this is meant to imply that slavery in the British North American colonies or the new United States did not have unique characteristics, making it noticeably different from systems of compulsory servitude that went before. Even so, there were not only similarities but intentional evocations between Roman slavery in particular and that of North America. American jurists fell heir to legal concepts from Roman jurisprudence by way of the judgments handed down during the fifteenth and sixteenth centuries in the Byzantine, Latin and Islamic periphery of Europe: Byzantium and its Latin Empire, the Ottoman Balkans and Kievian Russia.30 Thus, it may be argued that there is a continuity of cosmology from the ancient Mediterranean world to the plantations of Dixie, wherein slaves were held to be slaves forever, utterly unable to perform that most critical act of freemen in common law, the making of free-will commitments, such as marriage or contracts. Slaves they would remained, born, bred and buried ... or might they not? Soon the fires of moral contentiousness over the dubious legitimacy of these laws would begin to smolder.
One last problem appears worth mentioning, but only through comparison of the long-term records of both England and the American colonies: an apparent relative lack in the latter of legally trained personnel. In England a separate specialized Court of Laws Merchant had existed since the mid-fourteenth century; solicitors and attorneys abounded in London and other provincial capitols who already specialized. Not so, transparently, in the American colonies. All briefs, at first, were heard by the same courts, staffed by people who too often had a rather rudimentary notion even of common law or legalistic spelling. In the proprietorships, it was a relatively straight forward matter of presenting one's case to the attention of the Grantee. In Virginia on the other hand, where independent government structures developed fairly early because of the failure of the Virginia Company and from imperial neglect, additional courts, often in some way appellate, were established in order to deal with contested decisions and stubborn cases. All mercantile briefs for a long time were heard by the same justices who decided murders and probate, and who had perhaps a better notion of what to do with the makers of mayhem and with sullen heirs than with rarefied definitions of humanity and legal status. Thus overwhelmed, it would be no wonder that some poorly trained judges might defer decision if possible, or rely on common social usage, than to risk error by dabbling in matters beyond their understanding. Thus, the establishment of disastrous precedent concerning trade in human flesh may have inadvertently been aided by the desire to avoid legal error.
Cases in Virginia, 1625 - 1789
A court held in Jamestown on 19 September, 1625 very carefully handled an enthralled Negro brought to its attention as an indentured servant.31 Those very early English colonists were acutely aware that they themselves had signed on as servants to the Virginia Company, which still existed in that year and to which they had a continuing contractual obligation. Certainly pro forma, as well as in favorem libertatis, they wished to impress the directors of the company with their ability to be civilized and just in a distant and presumably savage land. It was probably also the only and last time for hundreds of years that the Anglo-Americans of Virginia treated a recently arrived African as anything approaching a legal equal. They had, after all, come to America in the naked if rather naive hope of gain, and too many were determined to get away with whatever exploitation they could devise.
In fact, the first twenty "Negar" slaves had arrived from the West Indies in a Dutch vessel and were sold to the governor and a merchant in Jamestown in late August of 1619, as reported by John Rolfe to John Smith back in London.32 By 1625, ten slaves were listed in the first census of Jamestown. The first public slave auction of 23 individuals, disgracefully, was held in Jamestown square itself in 1638. What were to become the parameters and properties of the "peculiar institution" were defined in the Virginia General Assembly from about 1640 onwards. Negro indenture, then, appears to have been no more than a legal fiction of brief duration in Virginia. Black freedmen would live in a legal limbo until the general emancipation in 1864, unable to stand witness in their own defense against the testimony of any Euro-American. The General Court dispositions that appear after 1640 seem to support this contention. Barbados was the first British possession to enact restrictive legislation governing slaves in 1644, and other colonial administrations, especially Virginia and Maryland, quickly adopted similar rules modeled on it. Whipping and branding, borrowed from Roman practice via the Iberian-American colonies, appeared early and with vicious audacity. One Virginian slave, named Emanuel, was convicted of trying to escape in July, 1640, and was condemned to thirty stripes, with the letter "R" for "runaway" branded on his cheek and "work in a shackle one year or more as his master shall see cause."33 Shades of Rome! This was most certainly not a contractually obligated indentured servant, however oppressed but consistent with English common law, that could expect release from his contract after a time. Rather, this was an abject slave, subject to the court's definition of him as mercantable and movable "property," as chattel or res, and to his master's virtual whim. Indeed, the general assembly of Virginia in 1662 passed an act which directly and consciously invoked Justinian code: partvs seqvitvr ventram, whereby a child born of a slave mother was also held to be a slave, regardless of its father's legal status.34 A few years later, the population of Africans in bondage in Virginia reached about 2,000, and another statute (1667) established compulsory life servitude, de addictio according to Roman code, for Negroes ... slavery had become an official institution.35
But that same issue of personage versus bondage had not been silenced. While in 1671, a "negroe weoman" was included in a delivery of crops, as though she were part of a cargo of produce,36 the very next year an African named Edward Mozingo successfully sued the man to whom he had been indentured for twenty eight years, being declared " free to all Intents and Purposes."37 These cases, and others like them, seem to indicate that in the late seventeenth century, it was becoming customary under Anglo-Virginian common law to treat Africans according to the status they appeared to be possessed of when they came under the court's jurisdiction. Was that one brought in as a slave? Then it was only a piece of property, having no legal status in and of itself. Did this one come under contract to the colony? Then this person was potentially free, because of his or her power to make contract. Yet common practice and legislation was, as has been seen, already beginning to erode the freedman's rights. The court opinions began to express well concealed confusion. In April, 1674, a court concluded that
upon the Petition of Capt. John West ... Concerning A negro woman called black mary purchased by the said Administrators from Coll. John Vassall, It is ordered that the Said negroe woman returne to her service, And it is ordered that the Administrators ... with the first opportunity take Care to write to Coll. Vassall to know whether the said negroe woman was a Slave or free, and if Appeare she was noe slave when bought, then they to pay her for her Service what this Court shall Adjudge.38
Obviously, the judge for this case, in his uncertainty about what status to accord Mary, put the burden of proof on the men claiming ownership of her to show whether or not she was indeed "property." Careful examination of the wording of the judgment, however, reveals that the court was already biased (in keeping with Roman precedent in ivs gentivm, perhaps) toward the interests of the "owners;" it was upon Colonel Vassall's word alone that Mary's incipient liberty or endless enthrallment depended.
The next thirty-odd years, according to the cases cited in Catterall's study, witnessed a further astriction of legal opinion regarding slave status. In the view of Judge John Holloway in probate court of 29 March, 1718, a "Mulatto Girl Sue" and her children were treated as heritable property in which the executors had right of ownership " because it must immediately vest in somebody."39 There was never any question at all that it might vest in Sue herself ... she was purely property, because of "Virginia Law 1705,"40 and therefore without rights.
Though the matter appears to have deteriorated over the next fifty years, the issue of slave status still would not die. The cases of Gwinn v. Bugg (1769) and Howell v. Netherland (1770) had complicated judgments concerning the termination of indenture. Both involved misogyny and the confusion of legal status for the off-spring, with which legislative action in 1691, 1705, 1723, and 1753 had not dealt effectively. In both instances, the court ruled in favor of the plaintiffs suing for their freedom, though with evident reluctance and a desire that the legislature should resolve the matter of nati natorvm et qvi nascentvr ab illis, whereby the status of the grandchildren of misogynous unions could be determined with certainty.41 Otherwise, any slave was " distinguished as lands, the slave being worth as much as the ground he cultivates. For this reason our laws have put them on a footing with lands ...."42 There is a psychological symbolization expressed here as well as a legal opinion: the slave was no longer even upright like other human beings, but at one with "every creeping thing that creepeth upon the earth," to quote Genesis, 1: 26, in the Standard Authorized or "King James" Version.
When a certain Charles Moorman died in 1778, he started a series of litigations that would apparently go on for nine years: in his will, he sought to free his slaves. It was argued that the "laws of the land will not admit of such freedom,"43 and it took a special act of the commonwealth's general assembly in 1787 to carry out "the benevolent intentions of the said Charles Moorman," making them immediately free, as if born so; and their increase were also to be free. All under twenty-one and eighteen were to be free when they attained those ages, and the increase of those free at a future period were to be free with the parents ... This was ... pursued by a majority of the Court.44
What happened, to bring about what appears to be this legal anomaly, in a system that increasingly denied Negroes any humanity at all? Perhaps it was simply because of the fact that the gesture came from the commonwealth's legislature, to which the lower courts looked for guidance. Possibly, the law makers also wanted to signal solidarity with the libertarian ideals of the recently ended war of rebellion. In any case, the courts quickly returned to their accustomed modvs operandi.
Cases in Maryland, 1642 - 1784
On Munday 19th Sept. 1664 ... came a member from the lower howse that the upper howse would pleased to drawe up an Act obligeing negros to serve durante vita they thinking itt very necessary for the prevencion of the dammage Masters of such Slaves may susteyne by such Slaves pretending to be Christened And soe pleade the lawe of England.45
Before the day was out, the desired act was drawn up, amended and passed by both houses. Its language carefully avoided mention of the possible enfranchisement of slaves through conversion, but came down very hard on indentured Anglo-British women who wanted to marry African slaves: their children would not become free when her indenture was over, but would be slaves for life, in partvs seqvitvr ventram, "as their fathers were."46 This was only a couple of years after Virginia passed similar legislation. Yet for a very long time, Maryland court language was very careful to avoid the use of the word, "slave," even though a majority of the cases appear to be lawsuits involving the transfer of Negro servants and a great deal of tobacco as part of the awards. The legal establishment of slavery would take somewhat longer in Maryland than in Virginia, perhaps due to the mitigating influence of the Calverts, the Roman Catholic proprietors of Maryland, headed by their Lord Baltimore.
Although that law binding the slave children of indentured women was repealed by Lord Baltimore himself in 1681, to accommodate one of his family's favorite servant woman, "Irish Nell," her descendants, William and Mary Butler, were in 1770 defined as slaves. Nothing they could do by lawsuit appeared to be able to overcome the doctrine borrowed from Roman civil code that by then had come to prevail in most other slave-holding areas. Petitioners to the Provincial Court were more successful in the 1780's and 90's, but only if they could prove without stretching the rules of evidence too much that a fairly recent grandparent had been a free-born Europeans. Emancipation was a little more liberal in Maryland than in Virginia, in that light skinned slaves often had only to offer proof "by hearsay" that some ancestor had been free, and that slaves could be liberated "by intention" in their owner's wills, even though certain qualifications had not been met. Nevertheless, it was the effort of some legislators to distance their province from the provisions of the original charter granted to Sir George Calvert, that colonial law and custom should "be agreeable to the rights and customs of England."47 Slavery never became institutionalized in England as it did in Maryland or Virginia, where what amounted to a slave code in the rigid Roman style was to grow up that often conflicted with the spirit of precedence in common law.
Indian slavery seems to have occupied most of the attention of the courts in Maryland's first decades, much more so and later than Virginia, although Negro slaves were about as well. Very early, all "servants" appear to have been classed with livestock, if the abundance of lawsuits and bonds are to be believed. The function of the courts seems to have been a much more forthright exercise in common law. Perhaps this is because Maryland was a poorer province than Virginia, or because most early courts were presided over by one of the Calverts.
An appalling case of the killing of a defiant slave via verberibvs flagellis, aliisqve pnis in 1658, described in some detail in the record of testimony,48 attracted an official inquiry and fine by the colony's proprietors. The point made was that the slave had been treated with excessive brutality by his master, and that the court found this reprehensible. Certainly, Africans in Maryland, slave or free, were held responsible for murder, and likewise (as in England and Virginia) a European could not kill an African without penalty.49 But did such decisions establish legal status for slaves? The record up until the year 1665, as set down by Catterall, is not at all clear.
A significant enactment in October of that year by proclamation of Philip Calvert established "that noe person ... shall trade barter, commerce or game, wth (sic) any servant, except hyred servants, within this Province, without Lycence first had ... from [ their ] master."50 This is the first clear indication in these records that slaves were denied the right to make contract, and thus lacked one of the primary attributes of freedman status.
Edward English, a Negro slave, exhibited his petition for freedom to the Baltimore County Court in May, 1681.51 His case represents an interesting reinforcement of what has been revealed before in this study: his translation from slave to freedman depended upon the establishment of a contract he had made with a man who inherited him. The language of the disposition is very careful and specific. Whereas in Virginia, English's capacity to make contract in the first place would probably have been denied, and the case dismissed, the Baltimore court, surprisingly, responded by classifying English an "Orphan," and freeing him! This, however, was in keeping with the spirit of common law, clearly showing how human freedom in Maryland at least, in those days, could be dependent on an act of personal sovereignty, such as the making of a legal commitment.
In the 1680's, the courts became less squeamish about employing the word, "slave," regarding Negro bondsmen. This occurred in connection with the commission of heinous crimes, where the punishment became life servitude as slave. It also seems to have been coincident with a more forthright treatment and appraisal of African slaves as chattels. Ann Smith, "a Spinster," was condemned to death in December of 1696 for the murder of a Negro boy ... but was reprieved.52 The next year, what seems to be an African-European couple and their "mulatto" child were sold and fought over, without any regard for their possible legal rights.53 Thus, as the century turned, any rights Negroes had under the relatively liberal administration of the Calverts in the seventeenth century drained away into the abyss of economic expediency. Even the names of individual slaves, noted previously as a matter of course, begin to vanish from the dispositions.
The rate of incidence in crime punishable by death among the slaves also began to rise, according to Catterall's collection. Whereas most cases before the courts previous to 1700 had been lawsuits, the next ninety years saw a definite increase in the number of slaves condemned to death. Death sentences for African bondsmen increased almost four-fold from the 1740's through the 1760's, from 7 instances to 26, a rise of nearly 371%. During the same period, there were no death warrants issued for slaves only 33.3% of the time: for five years in the 1740's, three in the '50's and two in the '60's. The decade average rose from below .7 warrants issued at the end of the 1730's to almost three by 1770. Sixteen out of thirty years saw two or more slaves executed for their crimes. This represents far more cases in Catterall's Judicial Cases for Maryland than those of masters condemned in any way for harming their slaves.
One is tempted to wonder if the increase in slave crime was in response to the loss of what little legal status they had enjoyed before, and the insensitivity with which they were traded. There was, in fact, a statute enacted in 1752 that denied the validity of manumissions executed in the master's last illness, but otherwise there is no indication of the truth of such speculation in Catteral's work.
By a remarkable decision in 1760 concerning a Guinea native named "Captain Gray," the court opined his complaint groundless, that he could not be a slave because he was a freeman stolen from the African coast.54 Even though his status there may have been classified as free, nevertheless because of a theft he committed on board the slave ship as he was delivering others into bondage, he was not redeemed by his employer in Guinea. This reinforced the precedent of slavery-as-punishment established earlier in the century in Maryland. It was also a further erosion of legal status, in that it accepted uncritically as precedent the supposed common practice of Guinea chieftains, in ivs gentivm one supposes, of selling thieves into slavery.
Seven years later, a key opinion was handed down wherein the estates of two mulatto brothers were declared escheatable because they were considered bastards, even though their parents had been married and they themselves had attained freedom. Even so, the judge assumed that the parents had been slaves, and, falling back again on Roman civil code as so many Virginia jurists had already, declared that since slaves were incapable of contracting marriage, that their offspring thus "had no civil capacities to take by purchase, or take or transmit by descent, whilst in their original state of slavery."55 Not only had slave rights been eliminated, but freedmen's rights of contract and ownership were now to be in jeopardy.
One surprise remained in the century. Mary, a slave living in 1791, petitioned the courts for her freedom, and won. The victory for her must have been particularly sweet, for as the daughter of William and Mary Butler (page 17) she was thus the direct descendent of Irish Nell. She, whose parents had been forced back into enthrallment in 1770, finally achieved the status that Lord Baltimore had wanted for all of Nell's posterity.56 Most other slaves, by the turn of the nineteenth century, were not to be so fortunate; only two others were granted their freedom by the courts before 1800.
Summary
The landmark judgment in the case of Somerset v. Stewart in England, decided by Lord Mansfield in June of 1772, declared:
the state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only by positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory: It's so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from a decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.57
Thus slavery could not exist in England, regardless of socioeconomic implications, and the final push for statutory abolition began, culminating a half century later an the empire-wide ban. But in America, by 1789, this decision appears to have had little effect, in spite of the expressed delight of anti-slavery Quakers. The statutory legal structure built up over the past century and a half effectively restricted the liberating benefits of common law to Euro-Americans exclusively. The Negro slaves had by 1790 reached their full definition as dehumanized marketable commodities. A lawsuit in that year, in Virginia, apparently was brought for satisfaction in the transfer of a group of "11 negroes belonging to Benjamin Pynes ... i (sic ) saw them when down the country, and offered him 330 pounds for the whole."58 This sounds more like a trade in dry goods or agricultural products than in human lives, and there is no reason to believe that the participants in this transaction saw it as anything but a simple and straight-forward, absolutely amoral business deal.
The slave in the new United States of America was now legally indeed and irredeemably a Thing, not a person. Testimony from only one Caucasian witness was needed to convict a slave, who was not able to act in his or her own defense. English common law, as practiced in America, had been made to accommodate incompatible Roman civil code as precedent. The expedient and convenient Roman concept of "res" had (in spite of Cobb's legal objection to the contrary) been accepted completely in socioeconomic common practice, in ivs gentivm, and the courts supported the institution.
In thus eliminating the slave's right to exercise free-will, and replacing it with a "dual status," Southern jurists said, in effect, "slave, your body and its capacity to labor, de addictio and in partvs seqvitvr ventram, do not belong to you. Yet we are forced because of various circumstances, especially in favorem libertatis et de spiritvm inhærens natvrale, to recognize that you are apparently possessed of free-will that you are capable of using. Should you choose to seize control of this body for your own purpose in the commission of a crime (such as stealing that body from its owner by attempting escape, or by using it to kill another body) you will be held responsible for that crime. Correction will be brought about via verberibvs flagellis, aliisqve p nis, to the extent that in some instances the body may be executed, that the ill-choosing free-will may be removed from the presentation of threat to ordered society." Hypocritical, erroneous or just plain unwieldy this logic may be, but it is hoped that this study has given an indication of the long process by which such reasoning developed and was supported in the slave holding provinces of British North America.
The institution of slavery in the United States of America appears to have been continuous with that of ancient Rome, by way initially of the Byzantine Empire which passed its practice and laws concerning slavery on to the Iberian nations before its demise in 1451. Through enslavement of American aborigines de conquisitvs and Guineans de contractvs after a fashion, the practice was spread to other Europeans who wanted to profit from the lucrative trade to the monstrous operations in Iberian America. The institution spread laterally and rather slowly to the east coast of North America, where it came in contact and conflict with English common law. To support the spread by socioeconomic infiltration of slavery, American jurists quite logically appealed to the civil law of Rome when they found precedent lacking in common law, even though legal scholars back in England came to a different conclusion.
By 1800, anyone living in the southern United States with a high concentration of epidermic melanin was assumed a slave, unless by more or less difficult documentation that person could prove conclusively otherwise. The continuing uncertainty of the common law demanded the exposure of such proof. But even though slaves suffered horribly, it was the logical noose on the Anglo-American law's neck that tightened the hardest. Eventually, a subconscious recognition of the unworkable nature of "dual status" prompted extreme paranoid defensiveness in some southern Anglo-Americans. This disease would not be relieved soon, and then, only by the coincidence of gory cultural self-mutilation inflicted by civil war, some of whose helotist seeds were planted ages before northern Europeans ever reaped such noisome fruits on North American shores.
Notes
[full references are given in the bibliography]
1. Holmes, 21 - 222. Ariès, 613. Davis, 324. ibid., 835. Jolowicz, 2 - 46. Justinian, 2: I, 1, 37. ibid., 2: I, 1, 48. Watson, 9 - 149. Kirschenbaum, 31 - 8810. Davis, 32.11. ibid., 10312. Brackett, 5113. Bloch, quoted in Dockès, 14214. HTC, I, 915. Davis, 3116. ibid.17. Ariès, 5918. Davis, 3119. ibid., 1120. ibid.21. ibid., 1222. Cobb, quoted in Rose, 19823. ibid., 20024. ibid., 20525. ibid.26. Zanden, 221 - 22227. ibid., 222 - 328. Nelson, 5029. Holmes, 21-230. Davis, 3131. HTC, I, 7632. Robinson, 1333. HTC, I, 7734. Greene, 12635. Whitfield, 336. HTC, I, 7937. ibid.38. ibid., 8039. HTC, I, 8140. ibid.41. ibid., 89-9042. ibid., 9343. ibid.44. ibid., 93 - 445. HTC, IV, 146. ibid., 247. Brackett, 2648. HTC, IV, 11-1249. ibid., 1950. ibid., 2051. ibid., 2752. ibid., 3153. ibid., 3254. ibid., 41-255. ibid., 4756. ibid., 49 - 5057. HTC, I, 1558. ibid.,95
Bibliography
Primary Sources
Catterall, Helen Honor Tunnicliff. Judicial Cases Concerning American Slavery and the Negro, vol. I, Cases from the Courts of England, Virginia, West Virginia, and Kentucky, and vol. IV, Cases from the Courts of New England, the Middle States, and the District of Columbia. Washington, D. C. : Carnegie Institution of Washington, 1926 & 1936. [ abr. in NOTES as "HTC, I" and "HTC, IV".]
Cobb, Thomas R. R. An Inquiry into the Law of Negro Slavery in the United States of America. Philadelphia : T. & J. W. Johnson & Co, 1858. Excerpted in Rose (see below).
Justinian I, "The Great" (483 - 565 AD). The Digest of Justinian. Latin text edited by Theodor Mominsen and Paul Krueger; English translation edited by Alan Watson.v. I. Baltimore: Johns Hopkins University Press, 1985.
Reinsch, Paul Samuel. "English common law in the American colonies." Ph.D. dissertation, University of Wisconsin, 1889. NY : Da Capo Press, 1970.
Secondary Sources
Ariès, Phillipe and Georges Duby. A History of Private Life, vol. I, From Pagan Rome to Byzantium. Edited by Paul Veyne, translated by Arthur Goldhammer. Cambridge, MA : Belknap Press of the Harvard University Press, 1987.
Berger, Peter L. Sociology : a biographical approach. NY : Basic Books, Inc., 1972.
Bloch, Marc Leopold Benjamin. Feudal Society (La Societe Feodale. La formation des liens de dependance. Les classes et la gouvernment des hommes). Chicago : University of Chicago Press, 1961.
Brackett, Jefferey Richardson. The Negro in Maryland : a study of the institution of slavery. Freeport, NY : Books for Libraries Press, 1969.
Bridenbaugh, Carl. Jamestown. New York, NY : Oxford University Press, 1989.
Chase, Harold W., editor. The Guide to American Law : Everyone's Legal Encyclopedia. St. Paul, MN : West Publishing Co., 1983
Davis, David Brion. The Problem of Slavery in Western Culture. Ithaca, NY : Cornell University Press, 1966.
Dockès, Pierre. Medieval Slavery and Liberation (La liberation medievale). Chicago : University of Chicago Press, 1982.
Finley, Moses I. Ancient Slavery and Modern Ideology. NY : Penguin Books, 1983.
Greene, Lorenzo Johnston. The Negro in Colonial New England. NY: Athaneum Press, 1971.
Hofstadter, Richard. America at 1750 : A Social Portrait . New York, NY: Vintage Books / Random House, 1973.
Holmes, Oliver Wendel. The Common Law. Boston : Little, Brown and Co., 1938.
Jolowicz, Herbert Felix. Roman Foundations of Modern Law. Oxford : Clarendon Press, 1957.
Kirschenbaum, Aaron. Sons, Slaves and Freedmen in Roman Commerce. Washington, DC : Catholic University of America Press, 1987.
McColley, Robert. Slavery and Jeffersonian Virginia. Urbana : University of Illinois Press, 1964.
Mullin, Gerald W. Flight and Rebellion : slave resistance in eighteenth-century Virginia. NY : Oxford University Press, 1972.
Nelson, William Edward. Americanization of the Common Law : the impact of legal change on Massachusetts society, 1760 - 1830. Cambridge, MA : Harvard Unioversity Press, 1975.
Ostrogorsky, George. History of the Byzantine State (1940). Tranlated from the German by Joan Hussey, with a forward by Peter Charanis. New Brunswick, NJ : Rutgers University Press, 1957.
Robinson, Donald L. Slavery and the Structure of American Politics, 1765 - 1820. NY: Harcourt, Brace Jovanovich, 1971.
Rose, Willie Lee Nichols. A Documentary History of Slavery in North America. NY: Oxford University Press, 1976.
Watson, Alan. Roman Slave Law. Baltimore : Johns Hopkins University Press, 1987.
Whitefield, Theodore Marshall. Slavery Agitation in Virginia, 1829 - 1832. NY : Negro Universities Press, 1930.
James vander Zanden. Sociology : the Core. NY : McGraw - Hill., 1986.
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Thursday, May 24, 2007
Prison Slavery by Rev. Murphy Davis
The Journal of the Southern Regional Council, 1978-2003
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Go to Article List for Southern Changes. Volume 22, Number 3, 2001
Prison SlaveryBy Rev. Murphy Davis
Vol. 22, No. 3, 2000 pp. 21-24
Our friend Thony is locked up for a sentence of 481 years in an infamous Southern plantation-style prison. He spends his days with a swing blade cutting grass on the edge of ditches over the 20,000-acre prison. For his labor he is paid two cents per hour. One penny per hour is banked until his parole consideration (2070); the other is his to spend at the prison store.
Mary Louise sews blue stripes down the pants legs of prison uniforms at the garment factory near the women's prison. For her eight hours a day she is paid nothing. She begs stamps from friends to write to her children.
Charles stands, day after day, in front of a machine, watching it stamp out license plates. The work is monotonous, and he is paid nothing for it The prison tells him he is building "work skills." But since license plates are only made in prison industries, he is not being prepared for any work in the outside market.
Frank sits on death row. Day in, day out, he is, for all practical purposes, idle. Television, exercise, writing letters, and playing checkers pass the time. Frank, though young, strong, and energetic, is not allowed to work. He has spent the past ten years of his life unable to do anything of use to anyone.
Thony, Mary Louise, Charles, and Frank, like more than two million men, women, and children in the United States, cannot control their own labor. They are slaves.
Slavery is, of course, not a fashionable word in the early days of the twenty-first century. We assume ourselves to be rid of it. But an often-overlooked fact of U.S. political life and history is that the Thirteenth Amendment to the Constitution did not abolish slavery in this country. It simply narrowed the practice. The amendment reads "Neither slavery nor involuntary servitude except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction" (emphasis mine). Prisoners are, by mandate of the United States Constitution, slaves.
In the 1970s, the terminology of the prison system started to change. We began to have "Correctional Institutions," -Diagnostic and Classification Centers," "Youth Development Centers," etc. Wardens became "Superintendents;" guards became "Correctional Officers;" prisoners became "inmates." Solitary confinement, or the "hole," became the "Adjustment Center?' The language of scientific penology attempts to mask harsh reality.
Some of the tough talk of recent years has abandoned the "new" penology and reverted to the chain gang approach. But whatever words we use for the system or its captives, prisoners are people from whom most rights of citizenship have been taken. They have no right to control where they are, with whom, or how they spend their time in forced labor or forced idleness. Whether we say they are given over to the prison system to be "corrected," "rehabilitated," or "incapacitated," the fact remains that they are in the system to accomplish one goal: punishment.
Why? And for whom? Can we be satisfied to live with the commonly held assumption that people are in prison solely because they have done bad things? If this assumption were true then why would there be such wide variation in incarceration rates around the world and even within the United States? The United States goes back and forth with Russia for the distinction of being the world's number one jailer. That is to say that the U.S. depends more than any ether government in the world-on caging people as a response to our problems. In recent decades, we have closed mental hospitals, addiction services, and community programs for the retarded and the disabled, not to mention support services for families, children, and the elderly. Prisons and jails have become the one-stop solution for all our problems. There are, in many states, more mentally ill people in county jails and state prisons than in hospitals. Most expressions of 'deviance" have been criminalized and the criminal control system is supposed to take care of it all.
Prisons have not always been such major institutions in the United States. Georgia's penal history is representative of most Southern states: The first state prison was opened in Milledgeville (then the state capital) in 1817. The prison was based on the "Auburn plan" which assumed that hard work would simultaneously punish and reform. The average number of prisoners remained around two-hundred--all white. Black people, of course, were slaves and were dealt with inside the system of private ownership.
This development in Georgia roughly coincided with the opening of state prisons in other states. Thomas Jefferson took from Italian philosopher Cesare Beccaria the notion of confined convict slavery and designed a prison for Virginia that opened to receive prisoners in 1800. Centuries earlier, governments had learned that the punishment of slavery could be used to the benefit of the state. Galley slavery of ancient Greece and Rome was used again in France and Spain during the fourteenth and fifteenth
Page 22centuries.
In the nineteenth century, slavery as punishment was tailored to the needs of the American system. The benefits of this form of punishment to general social control were frankly admitted. A prison report in 1820 stressed that convict submission was 'demanded not so much for the smooth functioning of the prison but for the sake of the convict himself, who shall learn to submit willingly to the fate of the lower classes."
As the system of American prison slavery was honed, the controversy raged over the practice of chattel slavery. At the close of the Civil War, the controversy focused on the wording of the Constitutional Amendment to legally abolish slavery. Led by Massachusetts Senator Charles Sumner, those who argued for the complete abolition of slavery in the United States lost their struggle. The Thirteenth Amendment as it was passed, and as it stands, forbids slavery "except as a punishment for crime." This was a major victory for the white political forces of the old Confederacy, bitter over the loss of their captive labor force. Rather than legally abolishing slavery, the amendment changed the system to permit the state, not private citizens, to be slave owners.
After the Civil War, Southern planters thought themselves lost without their slaves. The one legal form of slavery still available to them was imprisonment Some states passed "Black Codes." Georgia and other states passed vagrancy laws, and similar statutes and ordinances as a way to lock up black people who were seen not to be in their "proper" place.
In 1868 Georgia established by law the convict lease system modeled after the Massachusetts system begun in 1798. Convicts could be leased to counties or county contractors for use on public works. In 1874 the Georgia law was altered to permit leasing convicts to private individuals and companies. By 1877, Georgia had 1.100 prisoners-994 (90 percent) of them were black.
In 1878, former Confederate Colonel Robert Alston. serving as state representative from DeKalb County, visited convict work camps all over the state. As head of the Committee on the Penitentiary he wrote a scathing report: "The lease system at best is a bad one, and seems to have been forced upon the State by an inability to provide for the great increase in the number of criminals growing out of the changed relations of labor. To turn the prisoners over to private parties, who have no interest in them except that which is prompted by avarice, is to subject them to treatment which is as various as the characters of those in charge and in many cases amount to nothing less than capital punishment with slow torture added." Alston encouraged leading citizens to withdraw from the companies leasing convicts. Before long, a man who
Page 23leased convicts murdered Colonel Alston.
As difficult as it must have been in the harsh days of, the post-Reconstruction era,, the black community found various ways to protest the lease system. One of their methods was an annual memorial service and "decoration of the grave" for Alston as the first white person to "condemn and denounce the workings of the abominable, blasphemous and vile penitentiary lease system, under which so many of our race are doomed to horror, agony, and pollution."
In 1908 the Georgia Prison Commission reported that, in the penitentiary and chain gangs combined, there were 4,290 Negro males, 209 Negro women, 461 white males, and six white women. In that same year a committee report to the legislature on corruption and cruelty in the lease system led the legislature to abolish the lease. After that, chain gangs worked on public works rather than for private individuals and companies. But abuses continued. One infamous warden used to send black trustees with a pitchfork to make the hogs squeal so that the townsfolk would not hear the human screams as the warden beat a prisoner with hosepipe. Submission to the "fate of the lower classes" seems to have continued as an agenda in the prisons.
In 1957, forty-one prisoners at the Buford Rock Quarry broke their own legs with their sledgehammers to protest harsh working and living conditions. When the investigations promised by prison officials never took place, a second and then a third group of prisoners broke their own legs. As recently as 1979, a number of prisoners at the Wayne County "Correctional Institution" cut their own Achilles tendons in protest of harsh and demeaning working conditions.
I will never forget my first visit to the Georgia State Prison at Reidsville in the spring of 1978. We drove onto the prison "reservation" and there, as far as I could see, were groups of men (mostly black) bent over working in the fields. Over them sat a uniformed white man on horseback with a rifle across his lap. I was utterly amazed; nothing in my formal education had prepared me to see this contemporary picture of slavery. Indeed, the privilege inherent in my formal education had contributed to my inability to see.
I did not realize then that slavery still existed as a legal institution in the United States. Most American citizens probably do not But as the Committee to Abolish Prison Slavery has said: "In any form, slavery dehumanizes, cripples, and destroys anyone who willingly, or unwillingly, partakes in its practice." Prisons and prison slavery are crucial institutions in this country for controlling labor in the interest of the powerful few and to the benefit of all people of privilege.
It is beyond dispute that imprisonment rates have always gone straight up and down with rates of unemployment among the poor and especially people of color. But this has changed. Today, unemployment is at its lowest rate in recorded history, and crime rates have dropped dramatically, but still the imprisonment rate has continued to grow. What now drives the criminal control system is it crime and punishment but the drive to feed the vast Prison Industrial Complex which has been created to seek growing profits from prison labor. Within this monstrous system, creating even more political and social obfuscation, the phenomenon of privatization of prisons has now made marketable commodities of even prisoners themselves. To feed corporate profits, our legislative bodies have steadily passed harsher laws and longer mandatory sentences while the courts have dutifully imposed the draconian laws and turned a blind eye to selective enforcement and prosecution. The portrayal of "crime" by the corporate media feeds the process. Since prisons on local, state, and federal levels have become multi-billion dollar industries, an increasing number of individuals and institutions are dependent on their continued existence.
Prison slavery infects all of us, whether we make ourselves aware of its use or not. Prisons are off the beaten path for most people. Middle and upper class people have very little reason to know anything of prisons or prisoners except when it becomes a local issue. Just a few years ago, communities could be quickly whipped into a frenzy to keep a new prison from being built "in our neighborhood." But with the frequently decimated economic base of small towns and rural areas and the increased "marketing" of prisons as an economic boon to small communities, many of these counties and municipalities now hire professionals to lobby the legislature and Departments of Corrections, begging them to put the next new prison in their area.
This marriage made in hell of racial polarization and discrimination with corporate greed has formed the bottom line of the Prison Industrial Complex and its devastating consequences.
The damage done to the human family by this unchecked pattern is inestimable. When a breadwinner is taken to prison her/his children often become wards of the state-by foster care or welfare. More often than not, prisoners are assigned to prisons far from family and community ties, so that relationships are usually at least damaged and sometimes completely broken. Because prisoners earn nothing, or nearly nothing; for their labor, there is no possibility of helping to support their own families or making reparations where appropriate. Millions of men and women and children are being "disappeared" from their communities, losing their families, their access to education and decent employment, and even the right to
Page 24vote when they are released. The situation becomes more complex by the day as we allow the prison industrial complex to be woven into our social, political, and economic fabric.
Pretending to be untouched by systems of degradation and dehumanization can only be a self-defeating game. Perhaps we had to come to this point to begin to face the futility and self-destructiveness of our corporate behavior. Perhaps it took this level of abuse of the system to make us stop and see that our basic document-namely the Thirteenth Amendment to the Constitution-is wrong as long as it allows penal slavery to replace chattel slavery.
It is time for a movement to take up the unfulfilled agenda of the nineteenth Century Abolitionists. The slaveholders who fought to maintain penal slavery in the Constitution understood that the criminal control system would be a lynchpin in the political economy of the post-Reconstruction South. It was later a basic underpinning of the Jim Crow system. In our day, the system of police, prisons, and courts are basic to any consideration of racial justice. We will not honestly confront race in our society until we take it on. Prison slavery must and will someday be abolished. Until then we will not even begin to take an honest look at how we might move toward fair labor practices, a living wage, and the ongoing task of dismantling the racism that infects our common life. It is the least we can do to be about the task of seeking human dignity and liberation for all of God's children.
Rev. Murphy Davis is a partner at the Open Door Community, an Atlanta community of Christians who minister with the homeless and prisoners. Davis is coordinator of the Southern Prison Ministry.
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Go to Article List for Southern Changes. Volume 22, Number 3, 2001
Prison SlaveryBy Rev. Murphy Davis
Vol. 22, No. 3, 2000 pp. 21-24
Our friend Thony is locked up for a sentence of 481 years in an infamous Southern plantation-style prison. He spends his days with a swing blade cutting grass on the edge of ditches over the 20,000-acre prison. For his labor he is paid two cents per hour. One penny per hour is banked until his parole consideration (2070); the other is his to spend at the prison store.
Mary Louise sews blue stripes down the pants legs of prison uniforms at the garment factory near the women's prison. For her eight hours a day she is paid nothing. She begs stamps from friends to write to her children.
Charles stands, day after day, in front of a machine, watching it stamp out license plates. The work is monotonous, and he is paid nothing for it The prison tells him he is building "work skills." But since license plates are only made in prison industries, he is not being prepared for any work in the outside market.
Frank sits on death row. Day in, day out, he is, for all practical purposes, idle. Television, exercise, writing letters, and playing checkers pass the time. Frank, though young, strong, and energetic, is not allowed to work. He has spent the past ten years of his life unable to do anything of use to anyone.
Thony, Mary Louise, Charles, and Frank, like more than two million men, women, and children in the United States, cannot control their own labor. They are slaves.
Slavery is, of course, not a fashionable word in the early days of the twenty-first century. We assume ourselves to be rid of it. But an often-overlooked fact of U.S. political life and history is that the Thirteenth Amendment to the Constitution did not abolish slavery in this country. It simply narrowed the practice. The amendment reads "Neither slavery nor involuntary servitude except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction" (emphasis mine). Prisoners are, by mandate of the United States Constitution, slaves.
In the 1970s, the terminology of the prison system started to change. We began to have "Correctional Institutions," -Diagnostic and Classification Centers," "Youth Development Centers," etc. Wardens became "Superintendents;" guards became "Correctional Officers;" prisoners became "inmates." Solitary confinement, or the "hole," became the "Adjustment Center?' The language of scientific penology attempts to mask harsh reality.
Some of the tough talk of recent years has abandoned the "new" penology and reverted to the chain gang approach. But whatever words we use for the system or its captives, prisoners are people from whom most rights of citizenship have been taken. They have no right to control where they are, with whom, or how they spend their time in forced labor or forced idleness. Whether we say they are given over to the prison system to be "corrected," "rehabilitated," or "incapacitated," the fact remains that they are in the system to accomplish one goal: punishment.
Why? And for whom? Can we be satisfied to live with the commonly held assumption that people are in prison solely because they have done bad things? If this assumption were true then why would there be such wide variation in incarceration rates around the world and even within the United States? The United States goes back and forth with Russia for the distinction of being the world's number one jailer. That is to say that the U.S. depends more than any ether government in the world-on caging people as a response to our problems. In recent decades, we have closed mental hospitals, addiction services, and community programs for the retarded and the disabled, not to mention support services for families, children, and the elderly. Prisons and jails have become the one-stop solution for all our problems. There are, in many states, more mentally ill people in county jails and state prisons than in hospitals. Most expressions of 'deviance" have been criminalized and the criminal control system is supposed to take care of it all.
Prisons have not always been such major institutions in the United States. Georgia's penal history is representative of most Southern states: The first state prison was opened in Milledgeville (then the state capital) in 1817. The prison was based on the "Auburn plan" which assumed that hard work would simultaneously punish and reform. The average number of prisoners remained around two-hundred--all white. Black people, of course, were slaves and were dealt with inside the system of private ownership.
This development in Georgia roughly coincided with the opening of state prisons in other states. Thomas Jefferson took from Italian philosopher Cesare Beccaria the notion of confined convict slavery and designed a prison for Virginia that opened to receive prisoners in 1800. Centuries earlier, governments had learned that the punishment of slavery could be used to the benefit of the state. Galley slavery of ancient Greece and Rome was used again in France and Spain during the fourteenth and fifteenth
Page 22centuries.
In the nineteenth century, slavery as punishment was tailored to the needs of the American system. The benefits of this form of punishment to general social control were frankly admitted. A prison report in 1820 stressed that convict submission was 'demanded not so much for the smooth functioning of the prison but for the sake of the convict himself, who shall learn to submit willingly to the fate of the lower classes."
As the system of American prison slavery was honed, the controversy raged over the practice of chattel slavery. At the close of the Civil War, the controversy focused on the wording of the Constitutional Amendment to legally abolish slavery. Led by Massachusetts Senator Charles Sumner, those who argued for the complete abolition of slavery in the United States lost their struggle. The Thirteenth Amendment as it was passed, and as it stands, forbids slavery "except as a punishment for crime." This was a major victory for the white political forces of the old Confederacy, bitter over the loss of their captive labor force. Rather than legally abolishing slavery, the amendment changed the system to permit the state, not private citizens, to be slave owners.
After the Civil War, Southern planters thought themselves lost without their slaves. The one legal form of slavery still available to them was imprisonment Some states passed "Black Codes." Georgia and other states passed vagrancy laws, and similar statutes and ordinances as a way to lock up black people who were seen not to be in their "proper" place.
In 1868 Georgia established by law the convict lease system modeled after the Massachusetts system begun in 1798. Convicts could be leased to counties or county contractors for use on public works. In 1874 the Georgia law was altered to permit leasing convicts to private individuals and companies. By 1877, Georgia had 1.100 prisoners-994 (90 percent) of them were black.
In 1878, former Confederate Colonel Robert Alston. serving as state representative from DeKalb County, visited convict work camps all over the state. As head of the Committee on the Penitentiary he wrote a scathing report: "The lease system at best is a bad one, and seems to have been forced upon the State by an inability to provide for the great increase in the number of criminals growing out of the changed relations of labor. To turn the prisoners over to private parties, who have no interest in them except that which is prompted by avarice, is to subject them to treatment which is as various as the characters of those in charge and in many cases amount to nothing less than capital punishment with slow torture added." Alston encouraged leading citizens to withdraw from the companies leasing convicts. Before long, a man who
Page 23leased convicts murdered Colonel Alston.
As difficult as it must have been in the harsh days of, the post-Reconstruction era,, the black community found various ways to protest the lease system. One of their methods was an annual memorial service and "decoration of the grave" for Alston as the first white person to "condemn and denounce the workings of the abominable, blasphemous and vile penitentiary lease system, under which so many of our race are doomed to horror, agony, and pollution."
In 1908 the Georgia Prison Commission reported that, in the penitentiary and chain gangs combined, there were 4,290 Negro males, 209 Negro women, 461 white males, and six white women. In that same year a committee report to the legislature on corruption and cruelty in the lease system led the legislature to abolish the lease. After that, chain gangs worked on public works rather than for private individuals and companies. But abuses continued. One infamous warden used to send black trustees with a pitchfork to make the hogs squeal so that the townsfolk would not hear the human screams as the warden beat a prisoner with hosepipe. Submission to the "fate of the lower classes" seems to have continued as an agenda in the prisons.
In 1957, forty-one prisoners at the Buford Rock Quarry broke their own legs with their sledgehammers to protest harsh working and living conditions. When the investigations promised by prison officials never took place, a second and then a third group of prisoners broke their own legs. As recently as 1979, a number of prisoners at the Wayne County "Correctional Institution" cut their own Achilles tendons in protest of harsh and demeaning working conditions.
I will never forget my first visit to the Georgia State Prison at Reidsville in the spring of 1978. We drove onto the prison "reservation" and there, as far as I could see, were groups of men (mostly black) bent over working in the fields. Over them sat a uniformed white man on horseback with a rifle across his lap. I was utterly amazed; nothing in my formal education had prepared me to see this contemporary picture of slavery. Indeed, the privilege inherent in my formal education had contributed to my inability to see.
I did not realize then that slavery still existed as a legal institution in the United States. Most American citizens probably do not But as the Committee to Abolish Prison Slavery has said: "In any form, slavery dehumanizes, cripples, and destroys anyone who willingly, or unwillingly, partakes in its practice." Prisons and prison slavery are crucial institutions in this country for controlling labor in the interest of the powerful few and to the benefit of all people of privilege.
It is beyond dispute that imprisonment rates have always gone straight up and down with rates of unemployment among the poor and especially people of color. But this has changed. Today, unemployment is at its lowest rate in recorded history, and crime rates have dropped dramatically, but still the imprisonment rate has continued to grow. What now drives the criminal control system is it crime and punishment but the drive to feed the vast Prison Industrial Complex which has been created to seek growing profits from prison labor. Within this monstrous system, creating even more political and social obfuscation, the phenomenon of privatization of prisons has now made marketable commodities of even prisoners themselves. To feed corporate profits, our legislative bodies have steadily passed harsher laws and longer mandatory sentences while the courts have dutifully imposed the draconian laws and turned a blind eye to selective enforcement and prosecution. The portrayal of "crime" by the corporate media feeds the process. Since prisons on local, state, and federal levels have become multi-billion dollar industries, an increasing number of individuals and institutions are dependent on their continued existence.
Prison slavery infects all of us, whether we make ourselves aware of its use or not. Prisons are off the beaten path for most people. Middle and upper class people have very little reason to know anything of prisons or prisoners except when it becomes a local issue. Just a few years ago, communities could be quickly whipped into a frenzy to keep a new prison from being built "in our neighborhood." But with the frequently decimated economic base of small towns and rural areas and the increased "marketing" of prisons as an economic boon to small communities, many of these counties and municipalities now hire professionals to lobby the legislature and Departments of Corrections, begging them to put the next new prison in their area.
This marriage made in hell of racial polarization and discrimination with corporate greed has formed the bottom line of the Prison Industrial Complex and its devastating consequences.
The damage done to the human family by this unchecked pattern is inestimable. When a breadwinner is taken to prison her/his children often become wards of the state-by foster care or welfare. More often than not, prisoners are assigned to prisons far from family and community ties, so that relationships are usually at least damaged and sometimes completely broken. Because prisoners earn nothing, or nearly nothing; for their labor, there is no possibility of helping to support their own families or making reparations where appropriate. Millions of men and women and children are being "disappeared" from their communities, losing their families, their access to education and decent employment, and even the right to
Page 24vote when they are released. The situation becomes more complex by the day as we allow the prison industrial complex to be woven into our social, political, and economic fabric.
Pretending to be untouched by systems of degradation and dehumanization can only be a self-defeating game. Perhaps we had to come to this point to begin to face the futility and self-destructiveness of our corporate behavior. Perhaps it took this level of abuse of the system to make us stop and see that our basic document-namely the Thirteenth Amendment to the Constitution-is wrong as long as it allows penal slavery to replace chattel slavery.
It is time for a movement to take up the unfulfilled agenda of the nineteenth Century Abolitionists. The slaveholders who fought to maintain penal slavery in the Constitution understood that the criminal control system would be a lynchpin in the political economy of the post-Reconstruction South. It was later a basic underpinning of the Jim Crow system. In our day, the system of police, prisons, and courts are basic to any consideration of racial justice. We will not honestly confront race in our society until we take it on. Prison slavery must and will someday be abolished. Until then we will not even begin to take an honest look at how we might move toward fair labor practices, a living wage, and the ongoing task of dismantling the racism that infects our common life. It is the least we can do to be about the task of seeking human dignity and liberation for all of God's children.
Rev. Murphy Davis is a partner at the Open Door Community, an Atlanta community of Christians who minister with the homeless and prisoners. Davis is coordinator of the Southern Prison Ministry.
Go to Article List for Southern Changes. Volume 22, Number 3, 2001
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Cells for Sale
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Vol. 22, No. 3, 2001 pp. 16-20
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Criminalization of Women
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Sunday, May 13, 2007
Research on Prison Slaves
There, in history, and here in today's reality we see the continued and well established pattern(s) of medical, chemical, biological, and other experiments applied to - coerced and/or forced upon slaves, by well established old recognized and old unrecognized institutions of slavery as chattel and "slavery...as a punishment". Those individuals, and companies who have and who continue to profit from experimentation on slaves continue to do so, so that when reparations litigation rebounds with abolition inspired radical reconstruction(s) they, their companies, and their prodigy will have the most to repay. LW
Prison Research Debate: Sharav v Gostin
Point/CounterpointShould prisoners be permitted to participate in medical research trials?From Proto - Massachusetts General Hospital magazine [Link]
POINT:If one respects the tenets of science and of human rights, the answer is clear, says Vera Hassner Sharav, founder of the Alliance for Human Research Protection (AHRP), which advocates responsible and ethical medical research practices. In 1973 the journalist Jessica Mitford famously summarized why prisoners were the preferred medical research subjects in the United States. They were “cheaper than chimpanzees,” she wrote in The Atlantic Monthly, quoting a physician involved in prison research. More than three decades later, inmates are not only less expensive than chimps, they have fewer government protections. Annual reports submitted to Congress document the number and disposition of every chimp (and dog and hamster) used in research trials. But no federal law requires anyone to keep track of the number of humans used—or harmed—in clinical trials. In fact, the only protection prisoners have against being subjected to experimental abuse hangs on the thread of a single federal regulation, Subpart C of the Common Rule, and that regulation governs just federally funded research. The recent Institute of Medicine recommendations to the Department of Health and Human Services, which commissioned the study on research involving prisoners through its Office for Human Research Protections, aim to strengthen federal oversight of human research. Yet the report, “Ethical Considerations for Research Involving Prisoners,” fails to fathom a fundamental truth: No matter what safeguards are put in place, the incarcerated can never freely give voluntary, informed consent because the fear of retaliation from prison officials precludes them from saying no to experiments. The history of U.S. prison research confirms abuse, not benefit. Prisoners were exposed to cancer-causing and radioactive chemicals at Holmesburg Prison in Pennsylvania between 1951 and 1974. Juvenile inmates at Stockton Prison in California were subjected to psychotropic drug tests in 1997 despite regulatory prohibitions. A federal investigation in 2000 documented gross violations in prison research conducted by the University of Texas at Galveston. Inmates should be off-limits except for noninvasive research aimed at improving prison conditions, such as finding ways to prevent staph infections. The push for prison experiments is motivated by business priorities. The biotech and pharmaceutical industries are addressing the shortage of volunteers by dipping into a deep pool of captive subjects with limited rights, housed in inherently coercive environments. Prisoner research is about exploitation, profit and expediency, not about the benefit of prisoners. What’s more, when the subjects are inmates, a study’s scientific conclusions are highly suspect. Although it’s hard to know how often lockdowns occur—according to a California study, one facility underwent 391 in a year—just a few can seriously disrupt a trial. During a lockdown, prisoners are denied access to their medicines, including lifesaving ones. So whatever results are eventually reported are little more than junk science.
COUNTERPOINT:The vulnerable status of prisoners should not be compounded by systematically excluding them from the benefits of science, says Lawrence O. Gostin, professor of law and public health at Georgetown University Law Center and chairman of the Institute of Medicine committee that issued “Ethical Considerations for Research Involving Prisoners.” Unquestionably, there’s something wrong with how research is conducted in prisons. But if we can correct the problems, then such research will yield a world of good. Sound research can profoundly improve the welfare of inmates. For example, if prisoners are enrolled in studies of such diseases as HIV/AIDS, hepatitis C and tuberculosis—which afflict prisoners in disproportionately high numbers—they could benefit from any finding or treatment discovered. Of course, research should never be conducted on captive populations simply to advance the greater good. Researchers should be required to demonstrate how prisoners themselves would benefit from a proposed experiment. It’s true that current regulations have brought about an untenable state of affairs: No one has a complete picture of what’s being studied, by whom (whether private or federal agencies) and upon whom. Thus federal oversight needs to be strengthened in significant ways. Gaping regulatory loopholes must be closed and more safeguards established (such as ensuring the privacy of patient information). Prisoners must be uniformly protected, regardless of the source of research funding. The recent report by the Institute of Medicine would create a national system of oversight and a public database to track studies. The institute’s report also recommended that prisoners not be allowed to participate in Phase I and II studies when safety has not been established. Furthermore, at least half of the research subjects in any clinical trial should be non-prisoners so that inmates are not singled out for research that the general public won’t volunteer for. It’s true that a significant percentage of trial subjects aren’t protected by regulatory restrictions, but that can be remedied in two ways: Congress could mandate uniform guidelines that would govern all research that enrolls prisoners, an the definition of prisoner could be expanded to include people on probation and parole. In addition, institutional revie boards should be assisted by independent prison research advocates, who would work on-site to quickly detect and report problems—and ensure that subjects have not been coerced. The issue of voluntary consent and the question of whether prisoners can truly exercise independent choice are fundamentally important. Research proposals that cannot ensure this protection should not be approved. Finally, the argument that trial protocols cannot be followed in a prison environment subject to lockdowns and other disruptions is disingenuous. Research is never perfect, regardless of the setting. Protocols get disrupted in ordinary trials. It is both harder and easier to conduct science in prison: harder because there are lockdowns, but easier because subjects generally aren’t lost to follow-up. For all these reasons, I’m confident that research conducted in prisons can be both scientifically and ethically sound. I don’t deny the threat of exploitation, but with rigorous legal oversight and consistently applied standards of protection, we can banish it.EarlierLaterMain Page
Labels: Prisoners, Research consent
Posted by Vera Hassner Sharav 5/12/2007 11:39:00 AM Permalink
Comments on "Prison Research Debate: Sharav v Gostin"
Anonymous said ... (5/13/2007 05:48:00 AM) :
In the old days, prisoners who survived risky or extremely intrusive experiments, or experiments that served no purpose other than to expand the stock of medical knowledge, were given their freedom, even if they faced the death penalty.Perhaps Gostin would acknowledge that reviving this tradition may be a via media between his "three monkey" approach and a total ban.
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