Slavery and the Law

The History of the Legal Systems and Cases That Enabled Slavery in the United States

De: Charles River Editors

Narrado por: Jim D. Johnston

Duración: 2 h y 40 m

Resumen del Editor

One of the great ironies of the Enlightenment was that various societies produced the notion of the inalienable rights of man, bequeathed by God, alongside the long-established and deeply entrenched institution of slavery. The ideological bedrock of the French Revolution was the Declaration of the Rights of Man and of the Citizen, and the American Revolution produced the Declaration of Independence. The self-evident truth of both of these was simply that mankind was endowed by God with certain inalienable rights, the most important of which were freedom and equality. Yet, in both cases, slavery was accommodated. The conflict existed, on the one hand, in the recognition of basic human rights, and on the other, in guarantees of property rights.

Ultimately, while the institution of slavery existed, the principle of protecting individual property rights prevailed, alongside a necessary acknowledgment that slaves were property first and sentient human beings second. It also required a great deal of careful drafting and verbal contortions to construct the Constitution for the young republic that supported those principles of freedom and equality while at the same time facilitating the perpetuation of the “peculiar institution”.

It was not until 1865, with the adoption of the 13th Amendment, the instrument that abolished slavery, that any overt mention of slavery found its way into the Constitution. Before that, direct reference was always carefully avoided, although, at the same time, unmistakably alluded to. The document is filled with provisions specific to slavery, protecting and codifying it on a federal level, without anywhere making direct or overt mention of it.

By 1788, when the Constitution of the United States was formally adopted, slavery had been a fact of life in the colonies for 169 years, since the first recorded arrival of Black Africans in Virginia in 1619. At that time, around the institution, had evolved a system of laws that were derived in the main from English common law. The irony here is that the regime of English common law was at its root hostile to the principle of human bondage, had no tradition of slavery to call upon, and was desirous on the whole to avoid making any overt judgment or pronouncement on the matter. It, therefore, fell to colonial lawmakers to resolve that essential contradiction between treating Africans as either people, property, or both. This tension remained in play throughout the era of slavery in English-speaking America until the matter was finally resolved by the outcome of the American Civil War.

The Compromise of 1850 was authored by the legendary Whig politician Henry Clay. In addition to admitting California to the Union as a free state to balance with Texas, it allowed Utah and New Mexico to decide the issue of slavery on the basis of what became known as “popular sovereignty”, which meant the settlers could vote on whether their state should be a free state or slave state. Though a Whig proposed popular sovereignty in 1850, popular sovereignty as an idea would come to be championed by and associated with Democratic Illinois Senator Stephen Douglas. The Compromise also abolished the slave trade–though not the existence of slavery itself–in Washington, DC. The Whigs commended the Compromise, thinking it was a moderate, pragmatic proposal that did not decidedly extend the existence of slavery and put slow and steady limits on it. Furthermore, it made the preservation of the Union the top priority.

As fate would have it, the refusal of Northern states to strictly apply the new fugitive slave law would be explicitly cited in several of the Southern states’ articles of secession in late 1860 and early 1861. In that regard, the Fugitive Slave Act ended up being one of the main tipping points that finally split the nation in two.

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