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Redress for Historical Injustices in the United States

Duke University Press

Chapter One

DAVID LYONS

Introduction

This essay concerns the creation of racial hierarchy in the United States, its perpetuation, and its persisting consequences. The "racial junctures" are brief periods of U.S. history in which decisions were made that profoundly affected racial stratification.

When Africans first came to the colonies, they did not enter chattel slavery, for there was no such system; it was created by colonial legislatures. After the War for Independence, the slave system was protected by the new Constitution. After the Civil War, slavery was abolished, but the federal government permitted the reestablishment of racial subjugation.

Racial stratification in the United States was not inevitable, at least in any sense that negates moral responsibility. Alternatives were recognized by those who made the relevant decisions. Satisfactory alternatives would have been difficult to achieve, but that is another matter. Consider a recent case. By the time of the 1942 Wannsee Conference, the Nazi leadership had decided to exterminate Jews, Roma, and others. Alternatives were not seriously considered, but they were understood well enough by the conference participants. The Holocaust was not inevitable, at least in any sense that negates moral responsibility.

It is arguable that a fourth racial juncture occurred in the last third of the twentieth century, when America faced its most promising opportunity to eliminate the legacy of slavery and Jim Crow but left the racial hierarchy substantially undisturbed.

The Creation of Chattel Slavery

In 1619, "20 and odd Negroes" were bought from a Dutch ship in Jamestown. This suggests that the Africans were chattels-that they could be bought and sold, were destined for perpetual servitude, and that their children would suffer the same fate. The Virginia colonists had just learned how to survive and perhaps even prosper-by cultivating tobacco as a cash crop for export. That required laborers. Virginia planters initially relied on European indentured servants, who worked for a period of years in return for their passage to America. But the conditions of servitude were typically harsh and the mortality rate was high enough to discourage some potential servants who had a choice in the matter. Inducements were increased, and the costs of importing servants from Britain rose considerably.

When Britain became a major participant in the slave trade, in the last third of the seventeenth century, the purchase of an African slave began to seem economically more attractive to Virginia planters than the price of a temporary servant. Planters began to substitute slave for indentured labor. The same applies to Maryland, where tobacco could likewise be cultivated profitably. Before long, the Carolinas, where conditions favored rice and indigo plantations, likewise imported substantial numbers of African slaves.

But the reference to "slaves" is misleading. We know from case reports as late as the 1670s that some Africans worked as indentured servants and could use colonial courts to enforce their contracts and to secure compensation for service beyond the contractual period. That would not have been possible if the Africans had been chattel slaves.

Unlike Spain and Portugal, Britain had no laws regulating slavery. But the colonists had the power to enact such laws, for the British colonies began as private ventures chartered by the Crown. As royal domains, they were not subject to parliamentary control until the middle of the eighteenth century. They were free to create their own laws, subject only to a Crown veto. And neither the Crown nor, later, Parliament was motivated to interfere with slavery in the colonies, whose economies engaged the British in very profitable activities, including the slave trade itself.

The records of Virginia legislation imply even more clearly that the legal framework of chattel slavery did not exist for most of the colony's first few decades but was constructed during the last third of the seventeenth century. Here are some of the principal measures:

1. The Virginia legislature began the process with its 1662 enactment "that all children borne in this country shalbe held bond or free only according to the condition of the mother." This represents a deliberate departure from the common law. It had been decided that servitude for Africans would be inheritable.

2. As a result of prior contact with Europeans, some Africans had been baptized, and Christian doctrine made them ineligible for enslavement. There was uncertainty among the Protestant churches as to whether the baptism of someone who was already a slave had the same effect. That helps to explain a Virginia enactment of 1667 "that the conferring of baptisme doth not alter the condition of the person as to his bondage or freedome." This permitted both the continued enslavement of someone after baptism and the enslavement of Africans who became Christians before they arrived in America.

3. For masters, discipline of Africans who were held in servitude without indentures presented a problem. The extension of servitude was a punishment available against indentured servants but not against those who served for life. The Virginia legislature addressed the issue in a 1668 enactment by permitting the most severe corporal punishments for those whose servitude could not be extended: "If any slave resists his master ... and by the extremity of the correction should chance to die, ... his death shall not be accompted ffelony, but the master ... be acquit from molestation, since it cannot be presumed that prepensed malice (which alone makes murther ffelony) should induce any man to destroy his owne estate." This gave masters maximum control over those held in lifetime bondage and adds another constituent of chattel slavery.

4. In 1682, the Virginia legislature addressed the racial dimension of chattel slavery in America by declaring "that all servants ... imported into this country ... whether Negroes, Moores, Mollattoes or Indians, who and whose parentage and native country are not christian at the time of their first purchase of such servant by some christian ... shall be ... slaves to all intents and purposes, any law, usage or custome to the contrary notwithstanding." Lifetime, inheritable slavery was for people of color, and only them. The Virginia legislature was creating a racially differentiated, two-tier labor system.

Colonial records indicate that, prior to this legislation, economic and social stratification had not been tightly color-coded. Marriages with European Americans were not uncommon. Some African servants, including slaves, secured their own freedom, became independent farmers, and joined communities of free African Americans or were recognized as members of racially mixed communities.

Most of the early African immigrants came from the west coast of Africa, where for a century and a half there had been considerable contact with Europeans, and many had been in other European colonies prior to Virginia. They differed from most who came during the height of the slave trade to North America, who came mainly from the African interior and were unfamiliar with Europeans, their language, or their culture. Many of the early arrivals knew the ways of Europeans, and many had already been converted to Christianity.

There has been some dispute among historians concerning cause-and-effect relations between chattel slavery and white racist attitudes. My point here is that, despite notions of white superiority among some portion of the European American population, it was initially neither assumed nor ordained that people of color should become a rigidly subjugated caste. Those who shaped the direction of the colony decided to color-code the social system. I want now to suggest a factor that may have encouraged that decision.

In seventeenth-century Virginia, servants from Europe and Africa cooperated in many settings. They worked together, shared living conditions and grievances, and ran away from bondage together. In 1676, they joined together in Bacon's Rebellion. Many landless whites and blacks hoped to gain land by dispossessing Native Americans. Bacon promised freedom to black slaves, who were especially affected by developments in public policy. Colonial legislation was dampening their hopes for freedom and reducing their conditions generally. The rebels opposed the governing elite, who already possessed considerable land and wanted peaceful relations with the neighboring Indians. The rebels forced the governor to flee Jamestown, which they burned to the ground. British troops crossed the Atlantic to put down the rebellion, which faltered when Bacon fell ill and died.

Bacon's Rebellion was not the first uprising against the colonial elite, but it was undoubtedly the most threatening rebellion prior to the 1770s. The experience may well have contributed to the determination of those who shaped colonial policies to drive a wedge between whites and blacks. By forcing servants of color to the bottom of a race-based social system, they accorded relative privilege, dignity, and opportunity to those with white skins. In 1682, shortly after Bacon's Rebellion, as we have seen, the Virginia legislature consigned people of color to slavery.

5. To cement the system and decrease effective opposition to the colonial elite, it was deemed necessary to do more. In 1691, the Virginia legislature banned interracial marriages and procreation. This measure was not universally approved by the white community and was opposed by some of its propertied members. The same enactment sanctioned the killing of runaway slaves, restricted severely the freeing of slaves, and required that freed slaves be transported out of the colony at the owner's expense. Blacks were to occupy the bottom caste, identified with slavery.

These efforts achieved some measure of success. In subsequent years, as European Americans were acculturated in a system that consigned African Americans to the bottom and penalized fraternization, they were encouraged to believe that the social hierarchy had a valid foundation.

In sum, the system of chattel slavery that developed in Virginia was not inevitable. For several decades, social mobility was possible even for African servants, who might acquire economic independence and respected social status. Faced with this prospect and that of a unified laboring class, the ruling elite imposed a racial caste system.

The Legal Entrenchment of Slavery

Until it was abolished by ratification of the Thirteenth Amendment in 1865, slavery was not expressly mentioned in the Constitution. But several provisions were understood by the framers and later by state and federal officials to refer to slavery. Following are the clearest examples.

The three-fifths clause provided that representation in Congress "shall be apportioned among the several States ... according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons." Indentured servants were expressly included in the category of "free persons" and Native Americans were excluded from the apportionment, so that only those in lifelong, hereditary slavery occupied the category "other persons." While suffrage was denied slaves, their numbers contributed to slave owners' influence within the federal government-not only in Congress but also in the executive branch (as the electoral college reflected congressional representation) and the federal judiciary (selected by the president).

The slave trade provisions prevented Congress for twenty years from banning "the migration or importation of such persons as any of the States now existing shall think proper to admit" and exempted this provision from amendment for the same period.

The fugitive slave clause provided for the return of "person[s] held to service or labour" to those "to whom such service or labour may be due"; it was understood to concern runaway slaves. After a fugitive slave act was enacted in 1793, persons accused of trying to escape from slavery or of aiding them were prosecuted in the courts.

The constitutional accommodation of chattel slavery seems to clash with the doctrine of universal human rights that a decade earlier was invoked to justify the colonial rebellion. The contradiction had frequently been noted, especially by friends of the American rebels when the latter complained of being reduced to "slaves" by Crown or Parliament.

In his Dred Scott opinion, Chief Justice Roger Taney denied there was any contradiction. According to Taney, the founders never dreamed of including people of African descent within the body politic. Africans "had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect." Furthermore, "This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute."

Taney was mistaken. At the very time chattel slavery was being established, in the late seventeenth century, objections to it were being publicly expressed in America. In the eighteenth century, antislavery sentiment was disseminated in print and from the pulpits of various denominations, South as well as North. When the Constitutional Convention was meeting, three northern states had already abolished slavery, three more had enacted gradual emancipation statutes, and three others would follow, as would three of the states that would soon be carved out of the Northwest Territory. This helps to explain why some delegates to the convention from slave states expressed a fear of attacks upon slavery and demanded that slavery be protected.

The Constitution helped to solve that problem. Slavery could be protected by excluding its regulation from the list of enumerated federal powers and ensuring that no power directly implied such an authority. That was done.

The Lower South (Georgia and the Carolinas) had lost many slaves during the war and wanted the slave trade protected. It was worried not only about antislavery agitation but also about Virginia and Maryland, which had a surplus of slaves and opposed their importation. The demand for tobacco had declined, and Chesapeake planters could profit from the internal slave trade if the Constitution protected slavery but permitted the banning of traffic in slaves from abroad. Merely omitting regulation of the slave trade from the list of federal powers would not solve this problem, because northern states wanted the federal government to regulate external commerce, which could include the slave trade. As a compromise, northern delegates accepted the slave trade provision as well as a ban on the taxation of exports (such as the slave states' cash crops).

But no such compromise was involved in the other constitutional accommodations made to slavery. Consider the three-fifths clause. The slave states did not make it a condition for union in the way that delegates from South Carolina insisted upon protections for slavery and the slave trade. Furthermore, the idea of counting slaves for purposes of representation lacked any precedents in Confederation practice or in the slave states themselves, and the three-fifths formula lacked any rationale. The North agreed to it without seeking concessions in return.

The fugitive slave clause was even more readily accepted. It was proposed at the end of the Convention and was subjected to neither bargaining nor debate. Northern delegates would have appreciated that it would rankle both antislavery interests and those who feared federal encroachment upon state autonomy. It, too, was a gift to the South.

(Continues...)

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