Prison Slavery

Tuesday, June 19, 2007

220 Years of Convict/Prison Slavery in America, the Northwest Ordinance of 1787

Immediate Press Release/Public Service Announcement

July 13, 1787 to July 13, 2007

220 Years of Convict/Prison Slavery in America, the Northwest Ordinance of 1787

Contents:

p. 1 Northwest Ordinance of 1787
p. 2&3 Prison Slave Territory Expansion
p. 3,4 & 5 Thirteenth Amendment 1865
p. 6, 7 & 8 United Nations Petition to Abolish “slavery…as a punishment for crime…”
p. 9 – 16 Notes:

Committee to Abolish Prison Slavery
Email: prisonslavery@yahoo.com
http://prisonslaveryebook.blogspt.com

1.

Northwest Ordinance 1787

July 13, 2007 marks the 220th Year Anniversary of the Northwest (Territory) Ordinance of 1787, and gives focus to Article 6 as the legislative start of “slavery…in the punishment of crimes” in America (1).

On the 13th of July, 1787, the Congress of the old Confederation, sitting in New York passed "an Ordinance for the Government of the Territory Northwest of the River Ohio," which has passed into history as the "Ordinance of 1787.

“The banning of “chattel” slavery in the territory had the effect of establishing the Ohio River as the boundary between free and slave territory in the region between the Appalachian Mountains and the Mississippi River. This division…between free and slave…states was the basis of a critical political question in American politics in the 19th century until the Civil War.” (From Wikipedia, the free encyclopedia)

“The Territory embraced what is now the States of Ohio, Indiana, Illinois, Michigan, and Wisconsin.” Over the next 72 years (1787 to 1859) its provisions were “applied to all the Territories of the United States lying north of latitude 36 degree 40', which now comprises the States of Iowa, Minnesota, Nebraska, Oregon. August 7, 1789, the Constitution of the United States having then been adopted, Congress, among its earliest acts, passed the binding force of the Ordinance of 1787, and adapted its provisions to the Federal Constitution. (2)”

Article 6:
- There shall be neither slavery nor involuntary servitude in the said territory, (3)

- OTHERWISE THAN IN THE PUNISHMENT OF CRIMES WHEREOF THE PARTY SHALL
HAVE BEEN DULY CONVICTED: (emphasis added)

- Provided always: That any person escaping into the same, from whom labor or service is lawfully
claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to
the person claiming his or her labor or service as aforesaid. (4)

Article 6, exposes the peculiar institution of slavery’s “infinite capacity for propagation”. It is a classic example of “how” chattel slavery was successfully compromised, blocked, halted, struggled against, and prohibited North of the Ohio River and East of the Mississippi River while simultaneously providing for the expansion of “slavery…in the punishment of crime(s)”. Chattel slavery was blocked; the fugitive slave act has a question of compromise, convict/prison slavery was legislatively born, and convict slave holding territory rapidly expanded throughout the five new states of this territory, and beyond.

2.

Prison Slave Territory Expansion

Article 6 legislatively prohibited and blocked chattel slavery in the Northwest Territory while simultaneously enshrining slavery to punish crime(s) whereof the party shall have been duly convicted. Article 6 serves as one classic example, within the history of slavery, where chattel slavery was legislatively blocked and prohibited, while the multi-state expansion of “slavery…as a punishment for crime” began.

Before the Civil War in America (1787 to 1861), convict/prison slave territory expanded across a minimum of eleven (11) new states with their various new state constitutional provisos, including: (5)

1. Ohio 1802,Article 8, Section 2:
There shall be neither slavery nor involuntary servitude in this state, OTHERWISE THAN FOR THE PUNISHMENT OF CRIMES, WHEREOF THE PARTY SHALL HAVE BEEN DULY CONVICTED.

2. Indiana 1816/1851, Article 1, Section 37:
There shall be neither slavery nor involuntary servitude within the State, OTHERWISE THAN FOR THE PUNISHMENT OF CRIMES, WHEREOF THE PARTY SHALL HAVE BEEN DULY CONVICTED.

3. Missouri 1818/1819
And provided, also, that the further introduction of slavery or involuntary servitude be prohibited, EXCEPT FOR THE PUNISHMENT OF CRIMES, WHEREOF THE PARTY SHALL HAVE BEEN DULY CONVICTED;

4. Illinois 1818 Article 4, Section 1
Neither slavery nor involuntary servitude shall hereafter be introduced into this State, OTHERWISE THAN FOR THE PUNISHMENT OF CRIMES, WHEREOF THE PARTY SHALL HAVE BEEN DULY CONVICTED…”

5. Michigan 1837/1850 Article 18, Section 11
Neither slavery nor involuntary servitude, UNLESS FOR THE PUNISHMENT OF CRIME, shall ever be tolerated in this State.

6. Iowa 1846 Article 1, Section 23
Neither slavery nor involuntary servitude, UNLESS FOR THE PUNISHMENT OF CRIMES, shall ever be tolerated in this State.

7.Wisconsin 1848 Article 1, Declaration of Rights Sec. 2.
There shall be neither slavery, nor involuntary servitude in this state, OTHERWISE THAN FOR THE PUNISHMENT OF CRIME, WHEREOF THE PARTY SHALL HAVE BEEN DULY CONVICTED.

3.

8. California 1849, Article 1, Section 18
Neither slavery nor involuntary servitude, UNLESS FOR THE PUNISHMENT OF CRIMES, shall ever be tolerated in this State.

9. Oregon 1857, Article 1, Section 35
There shall be neither slavery nor involuntary servitude in the State, OTHERWISE THAN AS A PUNISHMENT FOR CRIME, WHEREOF THE PARTY SHALL HAVE BEEN DULY CONVICTED.

10. Minnesota 1857-8, Article 1, Section 2
There shall be neither slavery nor involuntary servitude in the State OTHERWISE THAN IN THE PUNISHMENT OF CRIME, WHEREOF THE PARTY SHALL HAVE BEEN DULY CONVICTED.

11. Kansas 1859 Bill of Rights, Section 6
Slavery prohibited. There shall be no slavery in this State; and no involuntary servitude, EXCEPT FOR THE PUNISHMENT OF CRIME, WHEREOF THE PARTY SHALL HAVE BEEN DULY CONVICTED.

This convict/prison slavery proviso, Article 6 of the Northwest Territory Ordinance of 1787, was enshrined into legislative and material reality; and convict/prison slavery expanded across new states with OTHERWISE, UNLESS AND EXCEPT provisos.

Thirteenth Amendment 1865
Thirteenth Amendment to the United States Constitution (12/18/1865):

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.

Approximately three years before Lincoln was elected president, before the Civil War to abolish all slavery in America, and before proposed wording for the 13th Amendment was being introduced in Congress; before these monumental historic events, eleven new states had already enshrined convict/prison slavery provisos within their various State Constitutions.

Charles Sumner, Abolitionist Senator from Massachusetts, and outspoken chairman on the Senate Select Committee on Slavery and the Treatment of Freedmen submitted a joint resolution (S.B. 24) to the Senate to amend the Constitution on February 8, 1864: (6)

“Everywhere within the limits of the United States, and of each state or Territory thereof, all persons are equal before the law, so that no person can hold another as a slave”.6 (note: see footnotes on page 14)

4.

Not only would the passage of Sumner’s proposal have ended all slavery, it would have secured equality for all persons before the law. Its emancipating consequences would have been far-reaching for all people, regardless of race, sex, or previous condition of servitude.

Senator Henderson, from Missouri, had also proposed a joint resolution (S.B. 16) almost one month earlier, on January 11, 1864, for an amendment to abolish slavery.7

Slavery or involuntary servitude, EXCEPT AS A PUNISHMENT
FOR CRIME, shall not exist in the United States.8

An avowed slaveholder,9 Senator Henderson’s resolution was modeled on the convict/prison slavery proviso of the constitution with which Missouri entered the Union. Derived from the slavery proviso of the Northwest Ordinance, both the Missouri proviso and Henderson’s proposed Amendment preserved America’s slaveholding heritage.

Sumner stated, “(My) objection to it (the proposition of the committee) is, further, …it seems to me the language is not happy…I understand that it starts with the idea of reproducing the Jeffersonian ordinance. I doubt the expediency of reproducing that ordinance. It performed an excellent work in its day, but there are words in it which are entirely inapplicable to our time. That ordinance I will read. It is as follows:

There shall be neither slavery nor involuntary servitude in the said Territory
OTHERWISE THAN IN THE PUNISHMENT OF CRIMES WHEREOF THE PARTY
SHALL HAVE BEEN DULY CONVICTED.

This ordinance, in precisely these words, was reproduced at a later day, in the very important act by which Missouri was admitted into the Union, containing the well-known prohibition which afterwards caused such debate.

There are words here, I have said, which are entirely inapplicable to our time. They are the limitation, “OTHERWISE THAN IN THE PUNISHMENT OF CRIMES WHEREOF THE PARTY SHALL HAVE BEEN DULY CONVICTED.” Now, unless I err, there is an implication from those words that men may be enslaved as a punishment of crimes whereof they shall have been duly convicted. There was a reason, I have said, for that at the time, for I understand that it was the habit in certain parts of the country to convict persons or to doom them as slaves for life as a punishment for crime, and it was not proposed to prohibit this habit. But slavery in our day is something distinct, perfectly well known, requiring no words of distinction outside of itself. Why, therefore, add “nor involuntary servitude otherwise than in the punishment of crimes whereof the party shall have been duly convicted?” To my mind they absolutely introduce a doubt.15

Sumner denied any distinction between slavery and involuntary servitude, saying that the essential nature of slavery was by his time clear and recognizable and that the ordinance confused matters by implying that a difference did exist, creating a doubt of their meaning.
5.
On January 31, 1865, the House passed the Thirteenth Amendment with the required two-thirds majority – 119 yeas to 56 nays and 8 abstaining. It was then signed by President Lincoln and submitted to the various states for ratification. On December 6, 1865 25 states returned their ratifications (7), and on December 18, 1865, the Secretary of State certified that the Thirteenth Amendment had become part of the Constitution.

The Senate’s refusal to act on Sumner’s appeal to delete the EXCEPTION for slavery from the final document would victimize and enslave poor citizens and newly emancipated freedmen for more than 142 years, and for 220 years with the Northwest Ordinance of 1787. All slavery was not abolished. Chattel slavery was prohibited, prison slave territory expanded to all states, and to “any place subject to their jurisdiction”.

Today, the massive expansion of “slavery…as a punishment” represents a conservatively estimated 14 to 33 million caged and chained prison slaves internationally, with over 2.4 to 7.6 million men, women, and children in the USA at this very hour, not including the prison/war slaves of Iraq, Afghanistan, Guantanamo, Abu Ghraib, Baghdad, Palestine, Hutto, etal. The abolition of convict/prison slavery in America will advance and accelerate the abolition of all old and modern forms and institutions of international slavery.

6. PETITION -
UNITED NATIONS PETITION TO ABOLISH “SLAVERY…AS A PUNISHMENT FOR CRIME… WITHIN THE UNITED STATES, OR ANY PLACE SUBJECT TO THEIR JURISDICTION”. I hereby sign this United Nations Petition to Abolition Prison Slavery in support of changing the Thirteenth Amendment of the United States Constitution so as to remove the offensive exception for “slavery…as a punishment for crime…in the United States, or any place subject to their jurisdiction”; with the return of citizenship, labor and human rights for all. Thirteenth Amendment of the United States Constitution (1865) “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”. So as to read:
Neither slavery nor involuntary servitude shall exist within the United States, or any place subject to their jurisdiction. ________________________________________________________________________________
1.Print Name _____________________ Street Address, email _____________________________ Phone#_________
Signature___________________ City________________________State_______________Zip___________________
2. Print Name _____________________StreetAddress,email________________________________Phone#__________
Signature___________________ City________________________State_______________Zip___________________
3. Print Name ___________________ Street Address, email __________________________________ Phone#_______
Signature___________________ City________________________State_______________Zip___________________
4. Print Name_____________________ Street Address, email _____________________________ Phone#__________
Signature___________________ City________________________State_______________Zip___________________
5. Print Name__________________ Street Address, email ________________________________ Phone#__________
Signature___________________ City________________________State_______________Zip___________________
6. Print Name ___________________ Street Address, email __________________________________ Phone#_______
Signature___________________ City________________________State_______________Zip___________________
7. Print Name _____________________ Street Address, email _____________________________ Phone#__________
Signature___________________ City________________________State_______________Zip___________________
8. Print Name__________________ Street Address, email ________________________________ Phone#__________
Signature___________________ City________________________State_______________Zip___________________
9. Print Name ___________________ Street Address, email __________________________________ Phone#_______
Signature___________________ City________________________State_______________Zip___________________
10. Print Name _____________________ Street Address, email _____________________________ Phone#_________
Signature___________________ City________________________State_______________Zip_______________

7.
The three United Nations Universal Declaration of Human Rights authorities used for this petition include: Article 4: “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms”. Article 5: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. Article 23: Everyone has the right to form and to join trade unions for the protection of his interests.
The Petition to Abolish Prison Slavery is a joint Congressional/United Nations petition to remove the EXCEPTION for slavery found within the Thirteenth Amendment of the United States Constitution specifically within the United States; and within any country, prison, jail, or torture chamber “any place subject to their jurisdiction”.
Three sections of the United Nations Universal Declaration of Human Rights have been chosen to provide international authority for this petition.
Today, the massive expansion of “slavery…as a punishment” represents a conservatively estimated 14 to 33 million caged and chained prison slaves internationally, with over 2.4 to 7.6 million men, women, and children in the USA at this very hour, not including the prison/war slaves of Iraq, Afghanistan, Guantanamo, Abu Ghraib, Baghdad, Palestine, Hutto, etal.
As with the postbellum Black Codes, today lower offenses are raised to felony status while private prison construction companies, private prison corrections corporations, related prison expansionists and maintenance outsourcing similar to the old convict lease system is now making trillions of dollars world wide. This is to be expected because slavery has always been profitable. Without “profit”, slavery would cease to exist.

8.

In this work to abolish “slavery…as a punishment”, we further seek to encourage and give momentum to the abolition of both economic slavery, and slavery as the spoils of war. CAPS ultimate goal is to gain Universal Emancipation from all slavery. “To do less than this at the present moment, when slavery is still menacing, would be an abandonment of duty”.

This newly revised CAPS Petition to Abolish Prison Slavery will be submitted to the United Nations, to the United States Congress, to the various States, to appropriate International Courts, and to supportative representatives of the various nations.

We seek to give encouragement to readers of this document within the pits of hell or in the halls of Congress. Where ever you might be at this moment, we encourage, challenge and/or provoke your further study, analysis, debate, litigation, grassroots organizing, petitioning and lobbying for the abolition of slavery as a punishment for crime, slavery as a spoils of war, and slavery as an economic class status. Towards Abolition of all slavery.

Respectfully Submitted,
by Committee to Abolish Prison Slavery (CAPS)
Coordinator, Lee Wood
email:prisonslavery@yahoo.com www.books.google.com/books?vid=ISBN0910007004

Abolish Prison Slavery, Fascism, War, and Poverty
Abolish Torture, the Death Penalty, Prison Construction, exploited labor, exploited tax payers and return all citizenship, labor, human and economic rights.
Free Mumia, Peltier, and all political and economic prisoners.

9

NOTES:
Jeffersonian Ordinance p. 9
Slavery Abolition by several States p. 9
Possible Compromise p. 9
AAP p. 9
New Prison Slavery State Constitution Amendments & Provisos p.10
Thirteenth Amendment Debates – Congressional Globe p. 10, 11, 12, 13
States Ratifying the Thirteenth Amendment p. 12
Petition p. 13

10.

(1) Thirty three months earlier, “on the 1st of March, 1784, a committee consisting of Mr. (Thomas) Jefferson of Virginia, Mr. Chase of Maryland, and Mr. Howell of Rhode Island, reported an ordinance (referred to as the Jeffersonian Ordinance) for the temporary government of the territory…that any of the States may be admitted into the Union when their number of free inhabitants is as many as any one of the least numerous of the thirteen original States… It proposed, also, five "articles of compact." The fifth article was as follows:
"That after the year 1800 of the Christian era, THERE SHALL BE NEITHER SLAVERY NOR INVOLUNTARY SERVITUDE IN ANY OF THE SAID STATES, OTHERWISE THAN IN THE PUNISHMENT OF CRIMES, WHEREOF THE PARTY SHALL HAVE BEEN DULY CONVICTED TO HAVE BEEN PERSONALLY GUILTY."
(2)(African American Perspectives: Pamphlets from the Daniel A.P. Murray Collection, 1818-1907)
(3) The slaves enumerated (40,370) in the Northern States were held, subject to the varied provisions under which the several States had abolished slavery, or provided for its ultimate extinction. The time and mode of abolition adopted by the several States was as follows:
-Vermont, 1777; framed constitution fourteen years before she became a member of the Federal Union, whereof the “first” article abolished slavery.
-Pennsylvania, 1780; all persons born in the State after March 1 to be free at the age of twenty-eight.
-Massachusetts, 1780; absolute prohibition.
-New Hampshire, 1783; absolute prohibition.
-Rhode Island, 1784; all born in the State after March, 1784, to be free.
-Connecticut, 1784; gradual abolition.
-New York, 1799; gradual emancipation; in 1817, a further act decreed that there should be no slavery in the State after July 4, 1827.
-New Jersey, 1804; gradual emancipation.
(4) A possible compromise could have existed between Northern anti-slavery and Southern pro-slavery legislators so as to give Southern slave owner class the fugitive slave act allowing recapture of runaway slaves within this Territory; and by prohibiting the growing of tobacco and indigo north of the Ohio and Mississippi Rivers so as not to compete with slave states. These potential concessions to antebellum slave holding forces could have been in exchange for both the no chattel slavery statement, and for the institutionalization of “slavery…in the punishment of crimes”. Chattel slavery was blocked; prison slavery was born, and convict/prison slave holding territory rapidly expanded.
“Evolution of the Ordinance of 1787: With an Account of the Earlier Plans for the Government”, Jay Amos Barrett, 9 June, 1891, US4616.11A, pp. 79-80
(5) New Prison Slave State Constitutional Amendments and Provisos: (Prison Slavery, pgs 207 – 221)
(6) Congressional Globe
Nearly one month after Henderson submitted his resolution and only two days after Sumner submitted his, the Senate Committee on the Judiciary announced acceptance of Henderson’s resolution as the basis for the Thirteenth Amendment. In this report to the Senate, Senator Trumbull briefed the Senate on the proposed amendment:

11.
I will state that the amendment, as recommended by the Committee on the Judiciary, provides for submitting to Legislatures of the several States a proposition to amend the Constitution of the United States so that neither slavery nor involuntary servitude, EXCEPT AS A PUNISHMENT FOR CRIME, WHEREOF A PARTY SHALL HAVE BEEN DULY CONVICTED, shall exist within the United States, or any place subject to their jurisdiction; and also that Congress shall have power to enforce this article by proper legislation. I desire to give notice to the Senate that I shall at an early day, call for the consideration of this resolution.10 (note: these footnotes are on page 13)

On April 8, 1864, Senator Charles Sumner made his final appeal to the Senate to change the wording of the ominous amendment and asked that his proposed joint resolution be accepted as a substitute:

Beyond my general desire to see an act of universal emancipation that shall at once and forever settle this great question, so that it may no longer be the occasion of strife between us, there are two other ideas which are ever present to my mind as a practical legislator: first, to strike at slavery wherever I can hit it; and secondly, to clean the statute-book of all existing supports of slavery, so that it may find nothing there to which it may cling for life. To do less than this at the present moment, when slavery is still menacing, would be an abandonment of duty. 11

So long as a single slave continues anywhere beneath the flag of the Republic I am unwilling to rest. Too well I know the vitality of slavery with its infinite capacity of propagation, and how little slavery it takes to make a slave State with all the cruel pretensions of slavery…12

Sumner then criticized the proposed amendments’ resemblance to Article 6 of the Northwest (Territory) Ordinance of 1787:

There shall be neither slavery nor involuntary servitude in the said territory, OTHERWISE THAN IN THE PUNISHMENT OF CRIMES WHEREOF
THE PARTY SHALL HAVE BEEN DULY CONVICTED…

Let me say frankly that I should prefer a form of expression different from that which has the sanction of the committee. They have selected what was intended for the old Jeffersonian Ordinance (of 1787), sacred in our history, although, let me add, they have not imitated it closely. But I must be
pardoned if I venture to doubt the expediency of perpetuating in the Constitution language which, if it have any signification, seems to imply “slavery or involuntary servitude” may be provided “for the
punishment of crime.” There was a reason for that language when it was first employed, but that reason no longer exists. If my desires could prevail, I would put aside the ordinance on this occasion, and find
another form. I know nothing better than these words:

All persons are equal before the law so that no person can hold another as a slave; and
the Congress shall have power to make all laws necessary and proper to carry this decision
into effect everywhere within the United States and the jurisdiction thereof.13

12.
…Enough has been said to explain the origin of the words which are now proposed (French Declaration of Rights, 1787). It will be for the Senate to determine if it will adopt them.
Should the Senate not incline to this form, there is still another I would suggest, as follows:

Slavery shall not exist anywhere within the United States or the jurisdiction thereof; and that the Congress shall have power to make all laws necessary and proper to carry this prohibition into effect.14

The Congressional Globe’s report on the Senate debates of April 8, 1864:

MR. SUMNER. Now, Mr. President, the state of the question is this, the Senator from Missouri (Mr. Henderson) offered a proposition in this form:

Art. 1. Slavery or involuntary servitude, EXCEPT AS A PUNISHMENT
FOR CRIME, shall not exist in the United States…

I make this comment on the proposition which we have before us, that of the Senator from Missouri, in order to explain why I should be against that in the form in which it stands; I am free to say that in some respects I think it better than the article proposed by the committee. It is as follows:

Slavery or involuntary servitude, EXCEPT AS A PUNISHMENT
FOR CRIME, shall not exist in the United States.

It is simpler than the proposition of the committee…

(My) objection to it (the proposition of the committee) is, further, …it seems to me the language is not happy…I understand that it starts with the idea of reproducing the Jeffersonian ordinance. I doubt the expediency of reproducing that ordinance. It performed an excellent work in its day, but there are words in it which are entirely inapplicable to our time. That ordinance I will read. It is as follows:

There shall be neither slavery nor involuntary servitude in the said Territory OTHERWISE THAN IN THE PUNISHMENT OF CRIMES WHEREOF THE PARTY SHALL HAVE BEEN DULY CONVICTED.

This ordinance, in precisely these words, was reproduced at a later day, in the very important act by which Missouri was admitted into the Union, containing the well-known prohibition which afterwards caused such debate.

There are words here, I have said, which are entirely inapplicable to our time. They are the limitation, “OTHERWISE THAN IN THE PUNISHMENT OF CRIMES WHEREOF THE PARTY SHALL HAVE BEEN DULY CONVICTED.” Now, unless I err, there is an implication from those words that men may be enslaved as a punishment of crimes whereof they shall have been duly convicted. There was a reason, I have said, for that at the time, for I understand that it was the habit in certain parts of the country to
13.
convict persons or to doom them as slaves for life as a punishment for crime, and it was not proposed to prohibit this habit. But slavery in our day is something distinct, perfectly well known, requiring no words of distinction outside of itself. Why, therefore, add “nor involuntary servitude otherwise than in the
punishment of crimes whereof the party shall have been duly convicted?” To my mind they absolutely introduce a doubt.15

Sumner denied any distinction between slavery and involuntary servitude, saying that the essential nature of slavery was by his time clear and recognizable and that the ordinance confused matters by implying that a difference did exist, creating a doubt of their meaning. His concern was well founded because, in 1857, before the Civil War, Iowa made use of the doubt. In an attempt to disguise in its practice of slavery, Iowa changed its constitution to prohibit slavery and permit involuntary servitude as a punishment for crime.

Sumner further argued that:
In placing a new and important text into our Constitution, it seems to me we cannot be too careful in the language we adopt. We should consider well that the language we adopt here in this Chamber today will in all probability be adopted in the other House, and it must be adopted, also, by three fourths of the Legislatures of the States. Once having passed this body, it is substantially beyond correction. Therefore, it seems to me, we have every motive, the strongest inducement in the world, to make that language as perfect as possible.16

Sumner also understood that the real meaning of the proposed Thirteenth Amendment would be camouflaged by it‘s awkward grammar; that the prison slavery proviso of the Thirteenth Amendment as ratified has gone substantially unchallenged and unrecognized, even by constitutional lawyers, for more than a century testifies to Sumner’s foresight:

I say, therefore, that I object to the Jeffersonian ordinance even if it were presented here in its original text. But now I am brought to the point that the proposition of the committee is not the Jeffersonian ordinance, except in its bad features. In other respects, it discards the language of the Jeffersonian ordinance and also its collocation of words. The language of the committee is as follows:

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.

The Senate will observe what to my ear is a discord, the introduction of those two “shalls” so near together, but that is not of great importance.
MR. DOOLITTLE. They are both in the Jeffersonian ordinance.

MR. SUMNER. But they are further apart, and the whole effect is entirely different. As I have said already, the language of the ordinance is entirely different. As I have said already, the language of the ordinance is, “There shall be.” Mark the beginning as compared with that of the committee. The committee say, “Neither slavery nor involuntary servitude,” &c. The ordinance says, “There shall be” – the word of prohibition coming first, at the outset –

14.
“neither slavery nor involuntary servitude in the said Territory otherwise than in the punishment of crimes whereof the party shall have been duly convicted”; whereas the committee say,

“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.”17

At this point, Sumner urged that if the Senate intended slavery to stand as a punishment for crime, they should state so clearly or remove the proviso entirely. The Senate did neither:

If Senators desire the Jeffersonian ordinance, I say let us take it in its original form as it appears in that ordinance, and was subsequently reproduced in the Missouri statute; do not let us take it in this modified form, which, while pretending to be the Jeffersonian ordinance, is not the Jeffersonian ordinance except in that feature which I think, if Senators apply their minds to it, they will see is clearly objectionable. I refer to the words, “EXCEPT AS A PUNISHMENT FOR CRIMES, WHEREOF THE PARTY SHALL HAVE BEEN DULY CONVICTED.” I have already said that for myself I should prefer the form which I have sent to the Chair, and on which the question is now to be taken; but I offer it as a suggestion, and if Senators do not incline to it, I have no desire to press it.
--------------------------------------------------------
CONGRESSIONAL Globe, vol.2, p.1313.
Ibid., p. 197.
Ibid., p. 521.
Ames, pp. 214-215.
Congressional Globe, vol. 2, p. 1313.
Ibid, p. 1461, Henderson concludes a long argument in the slavery debates with:
“There are but two sides to the question. The one is Union without slavery; and another is the immediate and unconditional acknowledgement of the southern confederacy… For the expression of this sentiment I may be called a fanatic…it results not from any sudden abhorrence of slavery, for I have been in its midst all my life. It does not spring from hatred of slaveholders, for, whether in honor or shame, I am a slaveholder today.
Ibid, vol. 1, p. 553.
Ames, pp. 215-216.
Congressional Globe, vol. 2, p. 1482.
Ibid
Ibid, p. 1483.
Ibid, pp. 1487-1488.
Ibid, p. 1488
Ibid.
Ibid.

15.

(7)
(From Wikipedia, the free encyclopedia)
Illinois (February 1, 1865)
Rhode Island (February 2, 1865)
Michigan (February 3, 1865)
Maryland (February 3, 1865)
New York (February 3,1865)
Pennsylvania (February 3, 1865)
West Virginia (February 3, 1865)
Missouri (February 6, 1865)
Maine (February 7, 1865)
Kansas (February 7, 1865)
Massachusetts (February 7, 1865)
Virginia (February 9, 1865)
Ohio (February 10, 1865)
Indiana (February 13, 1865)
Nevada (February 16, 1865)
Louisiana (February 17, 1865)
Minnesota (February 23, 1865)
Wisconsin (February 24, 1865)
Vermont (March 8, 1865)
Tennessee (April 7, 1865)
Arkansas (April 14, 1865)
Connecticut (May 4, 1865)
New Hampshire (July 1, 1865)
South Carolina (November 13, 1865)
Alabama (December 2, 1865)
Ratification was completed on December 6, 1865. The amendment was subsequently ratified by the following states:
1. Oregon (December 8, 1865)
2. California (December 19, 1865
3. Florida (December 26, 1865, reaffirmed on June 9, 1869)
4. 4. Iowa (January 15, 1866)
5. 5. Jersey (January 23,1866 after having rejected it on March 16, 1865)
6. Texas (February 18, 1870)
7. Delaware (February12, 1901, after having rejected it on February 8, 1865)
8. Kentucky (March 18, 1976, after having rejected it on February 24, 1865)
9. Mississippi (March 16, 1995, after having rejected it on December 5, 1865)
END

Saturday, June 9, 2007

THE ROLE OF CORRECTIONAL INSTITUTIONS

THE ROLE OF CORRECTIONAL INSTITUTIONS"Not only criminal behavior but also punishment is disruptive to community harmony" (Lord Croughton)
The rationale behind the use of correctional facilities is separation, specifically, physical separation of the offender from society. This separation rationale or containment doctrine (uncharitably called "warehousing" by critics and charitably called the protection of society and betterment of the offender by advocates) assumes that the conduct of certain crimes is so serious and the chance of repetition so great that the judge, acting for the good of society, must physically separate the offender from any motive or opportunity to harm the public again. Separation or containment is sometimes referred to as incapacitation, although the correct term is incarceration. The difference is that incapacitation aims at making it permanently impossible to re-offend, while incarceration aims at making it impossible only for a short while, with a hope that re-offending will not occur upon release. If you banish somebody from their homeland forever, or if you castrate a rapist, that is incapacitation. If you send somebody away for awhile, and pay careful attention to where you send them, for how long, and whether or not they improved, that is incarceration. Given these examples, a sentence of life without parole would be incapacitation, as would the death penalty, and as would most eye-for-eye retribution. Incarceration is an inseparable combination of deterrence and rehabilitation. Incarceration without paying much attention to the "where," "how long" and "whether improved" is simply called punishment or penalty, and in the sociology of punishment, involves the study of "why" penal sanctions exist, or in philosophy, the study of the "why" or rationale behind punishment. Incarceration with attention to the "where," "how long" and "whether improved" is called penology (short for the 19th Century phrase "penitentiary science") or the science of corrections (a 20th Century social engineering term for the ability to be technically proficient at the processing of incarcerated offenders). The difference is that penology mainly looks at what needs to go on inside a prison to keep it functioning, and correctional science mainly looks at the effectiveness and efficiency of the whole correctional apparatus or the correctional subsystem component of criminal justice.
The central purpose of a correctional subsystem in criminal justice is to carry out the criminal sentence imposed by the court subsystem (Clear & Cole 2000). In this purpose, a correctional subsystem assists with maintaining the integrity of the law and the ability of law to protect society. In a larger sense, the existence of a correctional apparatus helps society to enforce its behavioral norms, since the mere existence of a prison system reinforces the belief that there is a place where people can be put who exceed our tolerance for criminal behavior. In this sense, prisons serve to protect society, help define the limits of behavior, and help everyone know and understand what is permissible and what is not permissible. Almost all contemporary correctional systems claim the twin goals of public protection and fair punishment. Public protection (or public safety) is maintained by having a well-regulated set of procedures, facilities, and philosophies that are consistent with what court officials want and what society needs. Fair punishment is accomplished by applying some "corrective" yet still "punitive" action to convicted offenders that most often takes the form of humane security, custody, and control along a range of program opportunities all administered in a just and equitable manner within the least restrictive environment consistent with public safety.
FOUCAULT ON INCARCERATION & THE HISTORY OF WORKHOUSES
Incarceration, or the use of correctional facilities, arose in the history of Western civilization out of a distaste for transportation (the banishment of offender to far-away lands like Australia) and a distaste for corporal punishment (which was eventually banned). If Foucault's (1995) historical account can be believed, Western civilization moved away from a reliance on physical torture because torture no longer served the interests of maintaining sovereign power and the all-encompassing "carceral" state. Prisons are a "natural" phenomena in a global system of sovereign nation-states because the ultimate purpose is to either make all of society one big prison or to either cherish "liberty" to the point where "deprivation of liberty" becomes the punishment par excellence. At least that is the thesis of Discipline and Punish, admittedly a complex piece of philosophical work about corrections. Another subthesis is that societies progressively moved from torture of the body to torture of the mind, again a controversial point in Foucault's philosophy.
What most historians agree with in Foucault's version of history is the fact that as many European societies "transported" plague and leprosy victims to the colonies, the emptied hospitals and other facilities were converted to the confinement of new clientele -- the insane and the criminal. The significance of the many plagues that made up the worldwide "Black Death" which wiped out nearly 40% of the world's population from 1347-1352 (lasting up to 1429 in some parts of the world and up to the 19th Century in other parts) cannot be overestimated. If you remember the children's song "Ring Around the Rosies... We All Fall Down," then you are remembering a song about the Black Death years. What is more notable is that as people kept moving and migrating in a futile attempt to "flee" the Black Death, governments created WORKHOUSES, or prisons for the poor, which kept beggars, vagrants, pickpockets, and welfare cheats off the streets. The workhouses were officially created in 1834 by what were called "Poor laws" and workhouses came to exist in every county either as a direct descendant of the county jail or the model thereof. Workhouses existed for the "undeserving poor" as opposed to almshouses which existed for the "deserving poor." Workhouses became the model of prison discipline, set the stage for the expected behaviors of "masters" or correctional officers, and eventually deteriorated into orphanages, jails, and aged juvenile prisons. Almshouses became the model for social work institutions. Asylums for the mentally ill crossed both sides, with some becoming prisons and others becoming social work institutions.
TRANSPORTATION AND PENAL SERVITUDE
In earlier times, larger prisons certainly existed as holding pens (usually nothing more than underground dungeons) for far worse punishments (torture, spectacle, or being fed to the lions in the arena). However, as Kittrie, Zenoff & Eng (2002) argue, incarceration as the "ideal" punishment (second in severity to the death penalty) came into favor only after the practices of transportation and penal slavery (servitude) died out. Prior to 1850, most countries relied on transportation to send serious offenders to far-away colonies. After 1850 (and to some extent before), governments started experimenting with a variety of transportation known as PENAL SERVITUDE. Penal servitude involved being "sold into slavery" for a period of years either as a sailor in the Navy, at a galley port for the Navy, as a soldier in the Army, as a fighter in a mercenary force, as a worker for a businessman, or as a worker for a plantation owner. Penal servitude became quite popular in Spanish-speaking parts of the world, and some experts regard early modern Spain (circa 1688-1748) as the birthplace of the modern, above-ground prisons in the form of Spanish forts (presidios) and central prisons which handled the overflow of implacable prisoners assigned to penal servitude. All presidios had prisons, consisting of 8x10 foot stone cells with iron bars, and they were primarily used as part of Spanish conquest (along with missions and pueblos) for housing foreigners and Indians. The model of a prison "cell" widely in use today can be traced to the presidio cells. You can see from the following table why penal servitude became so popular because it was seen a more lenient than transportation.
Transportation
Penal Servitude
7 years or less
4 years or less
7-10 years
4-6 years
10-15 years
6-8 years
15 years or more
8-14 years
life
life
The relationship between slavery and corrections is a story that needs to be elaborated on. Unfortunately, there are few books on the subject that are "classics" such as Hughes (1987) work on transportation. There is also the matter of some controversy over the 13th Amendment, which reads as follows:
THE THIRTEENTH AMENDMENT
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 to their jurisdiction.
This Amendment is usually interpreted to mean that slavery and peonage (forced servitude for owing debts) are abolished, but nothing prohibits compulsory work (for a private master in a jail) if a breach of contract or offensive behavior is "duly convicted" as a crime. Compulsory conscription into the armed services has been widely used by many states under this Amendment, but there are less than clear-cut cases of when the Amendment might apply, such as whether participating in an illegal union strike against an employer would qualify.
THE UNIQUELY AMERICAN TWIST ON CORRECTIONS
The United States imparted an unique religious twist to correctional institutions, and that twist consisted of the idea that prisons should be harsh, painful places, but not so harsh and painful that the offender cannot have the opportunity to reflect over what they did and mend their ways. This idea is a combination of Enlightenment humanitarianism and 19th century Utilitarianism. It is, at once, both idealistic and practical. Some of the basic principles to enact such an idea include the rule against "fraternization," impersonality of dress, regimented meals and counts, marching in mass movement lines, and an expectation that each inmate will "do their own time." Architecture and routine are designed to convey the impression that restraint is the primary purpose and treatment a casual afterthought. These features make up the basic PENITENTIARY model.
It wasn't long before Americans realized that adding more programs, farms, shops, classes, and recreation resulted in better control of prisoners and to some extent eased tensions within a penitentiary. Hence, the REFORMATORY movement was started, and newer prisons were built, some of which were called medium-security prisons with fences instead of walls, and minimum-security prisons without the need for armed guard towers. Special correctional facilities also sprouted up, for women, for youth, for reception and diagnosis, for prerelease purposes, for medical and psychiatric treatment, etc. A basic problem in such correctional facilities is the lack of funds to evaluate the effectiveness of programs. Corrections has a tendency to adopt new programs in a faddish, impulsive manner, and everything that passes for "new" has probably been tried somewhere, someplace before.
SO, WHAT ARE PRISONS FOR, ANYWAY?
Separation, obedience, and labor appear to be the "Holy Trinity" which guides the rationale for the whole of corrections (Kittrie, Zenoff & Eng 2002). Prisoners could be expected to be treated "differently" from other citizens (morally deranged or defective, perhaps), would obey all orders without question, and would work diligently at their assignments or reflection upon their misdeeds. Of these three, obedience without question appears to take precedence, and for this, correctional facilities adopted the quasi-military model of organization. Nothing else seems to produce a preserved isolation, unquestioning obedience, and regimented efficiency better than a military model. Above all, prisons are supposed to be places of order, a shining example that the outside world can look into and see what good things happen when the right principles of organization are put into place. Unfortunately, we often don't think of prisons that way today. Perhaps it's the MILITARY MODEL. Some reformers have thought so, and suggested a replacement FACTORY MODEL. However, most prison administrators are uncomfortable with suggestions for change at this basic a level.
Fox (1972) has described corrections as having multiple and conflicting goals. From time to time, we hear debates over what is the "primary" goal of corrections -- to contain, to control, to punish, to restrain, to rehabilitate, to reintegrate, etc. Yet, one primary task remains essential -- prisons exist to retain CONTROL as a basic part of their organizational purpose, and control extends to any opportunities for treatment and betterment. The roots of this primacy run deep, as does public resentment, fear, and fashionableness which seem to drive a need to forget about prisons and deprecate those inside of them. To study corrections is nothing less than the study of factors that interconnect the psyche of mankind with the will to overcome inertia in society. Evading the study of prisons or failing to recognize their important place in society is something we cannot afford to do.
INTERNET RESOURCESGardens of the Law: The Role of Prisons in Capitalist Society History of the Workhouses Jurisprudence of the 13th Amendment's Slavery & Involuntary Servitude Clause (pdf)Penal Servitude in Early Modern Spain Reentry & Reintegration - What is Corrections' Role? (pdf)What Role Can the Private Sector Play in Corrections?Wikipedia Encyclopedia Article on What a Prison is
PRINTED RESOURCESClear, T. & Cole, G. (2000). American Corrections, 5e. Belmont, CA: Wadsworth.del Carmen, A. (2004). Corrections, 2e. Cincinnati: Atomic Dog.Foucault, M. (1995). Discipline and Punish: The Birth of the Prison. NY: Vintage Books.Fox, V. (1972). Introduction to Corrections. Englewood Cliffs, NJ: Prentice Hall.Garland, D. (1990). Punishment and Modern Society. Chicago: Univ. of Chicago Press.Hirsch, A. (1992). The Rise of the Penitentiary: Prisons and Punishment in Early America. New Haven, CT: Yale Univ. Press.Hughes, R. (1987). The Fatal Shore: A History of the Transportation of Convicts to Australia, 1787-1868. NY: Collins.Kittrie, N., Zenoff, E., & Eng, V. (2002). Sentencing, Sanctions, and Corrections. NY: Foundation Press.Reichel, P. (2001). Corrections: Philosophies, Practices, and Procedures, 2e. Boston: Allyn & Bacon.Schmalleger, F. & Smykla, J. (2005). Corrections in the 21st Century. Boston: McGraw Hill.Silverman I. & Vega, M. (2000). Corrections: A Comprehensive View. Minneapolis: West. Tewksbury, R. (1997). Introduction to Corrections. Boston: McGraw Hill.
Last Updated: 08/26/04Syllabus for JUS 294 MegaLinks in Criminal Justice

THE ROLE OF CORRECTIONAL INSTITUTIONS

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
STREET SPIRIT1515 Webster St,#303Oakland, CA 94612Phone: (510) 238-8080, ext. 303
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Penal Servitude

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 inhÃ¦rens 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
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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.
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