The Codification of Fear: The Law During Slavery

(Part III in Series “The History of Black Rights in America”)

In the last article I discussed how the law created American chattel slavery and perpetuated a slave based caste system. In this next section we now turn to the laws during slavery. Specifically, I want to examine two legal documents: The Negro Act of South Carolina and the Dred Scott ruling. I chose these documents because of what they offered substantively and chronologically they serve as bookends to the laws during slavery. The Negro Act arose in 1739 during the earlier portion of slavery and the Dred Scott ruling was decided in 1857, only a few years prior to the civil war and the end of slavery.

As we examine these documents, we will again detect similar themes we saw in Part II of this series. The laws further dehumanized slaves and we see the irony of how whites used the law to repress the freedom of slaves, while espousing notions of freedom in their fight against Britain. In other words, the law was a sword and shield protecting whites while striking blacks. This was certainly the case in the Negro Act.

The Negro Act of South Carolina

The Negro Act of South Carolina, or South Carolina’s Slave Code of 1739 was enacted in response to the Stono Rebellion of 1739. The Stono Rebellion, sometimes called Cato’s Conspiracy or Cato’s Rebellion, was a slave rebellion that began in South Carolina while it was still a British Colony. Led by an Angolan slave named Jemmy, a group of twenty slaves organized on the banks of the Stono River. They were headed towards Spanish Florida because the Spanish promised freedom and land to British slaves that escaped. In the end it was the largest slave rebellion in the British colony with over sixty people killed, including white overseers and many of the rebels.

As you can imagine, the rebellion struck fear in the hearts of the white colonists. In addition to suppressing the rebellion, they looked to the laws to assuage these fears; the Negro Act was birthed as a result. The law reasserted previous laws that were not strictly enforced, as well as enacted new laws. For instance, again we see the theme that blacks can be killed without trial and without punishment to the killer (see §56). Slaves could not own weapons (see §23); they could not gather or travel in large numbers unless there was a white person present (see §43, 46) and they could not defend themselves against whites (see §24). In other words, slaves were restricted in their movement, in their right to assemble and their ability to protect themselves against other whites.

The Negro Act not only enacted the above laws that would prevent further rebellion, it also promulgated laws that were meant to ensure the perpetual bondage of slaves. One prime example of this effort was the law that made teaching slaves how to read and write illegal (see §45). Essentially, the law mandated the ignorance of slaves; because an ignorant slave is an easily subjugated slave. In addition to restricting the education of slaves, the law restricted the ability of slaves to participate in the economy. Slaves could not own boats or canoes, nor could they barter with whites (see §§30, 31, 34). The laws were so exacting in their paranoia that they even dictated the way slaves dressed. Section 40 states, “whereas, many of the slaves in this Province wear clothes much above the condition of slaves…no owner or proprietor of any Negro slave, or other slave…shall permit or suffer such Negro or other slave, to have or wear any sort of apparel whatsoever, finer, other, or greater value than Negro cloth, duffels, kerseys, osnabrigs, blue linen, check linen or coarse garlix, or calicoes, checked cottons, or Scotch plaids…” (§40).

Again, I could spend a dissertation unpacking these laws, and how they relate to the current state of black rights. However, the important take away from the Negro Act is that it is an example of how the laws functioned as a codification of white fear. Moreover, this codification of fear resulted in the oppression of blacks. Therefore, we must keep this important aspect of the law in mind: it was as much an oppressor of slaves as the white slave master and overseer.

Dred Scott v. Sanford[1]

Fast-forward over 100 years and we see the codification of white fear again, but this time in the form of a court case. This infamous U.S. Supreme Court case has a somewhat convoluted set of facts, but the gist of it is that Dred Scott and his wife Harriet were born slaves, but spent a considerable amount of time in free states. Under the Missouri Compromise, slavery was not permitted in free states. Masters risked forfeiting the right to possess their slaves by bringing their slaves into free states for an extended period. When the Scotts returned to slave states, they did not sue for their freedom immediately, although they could have. Instead, only after their master died and the Scotts could not buy their freedom did they sue for freedom. Their lawyer argued that the Scotts’ master forfeited the right to have them as slaves.

While the idea of slaves suing for their freedom may seem extraordinary, it actually was not an anomaly. In Missouri there were over 300 cases of slaves suing for their freedom, and many of them were successful. [2] Therefore, what the Scotts attempted to do was not as unusual as one may have thought. What was remarkable about this case, however, was that it was appealed all the way to the US Supreme Court. And with one sweeping ruling, the Supreme Court was able to undermine the previous protections given to blacks.

In Dred Scott v. Sanford, Chief Justice Taney went out of his way to espouse his feelings about slaves and blacks. His most egregious words were his declaration that “the black man has no rights which the white man is bound to respect.” Taney thought his decision would quail the slavery debate once and for all, but it only ignited anti-slavery advocates and helped usher in the civil war. Interestingly enough Dred Scott has never been officially overruled. Moreover, despite all the laws that have come after this case, Taney’s declaration on black rights remains the de facto truth.

The significance of Dred Scott is that it underscores the important role courts play in the repression or safeguarding of black rights. The court can decide to read the laws in a way that provides more or less protection.  As interpreters of laws, they can change the meaning and impact of laws, or overrule them altogether. Dred Scott serves as an instance where the court chose not only to remove protections from black, but also used it as an occasion to dehumanize blacks. This case also highlights how unstable black rights have been in this country. A single Supreme Court case was able to remove what little rights black had. With the stroke of a pen, the court declared that we had no rights to be respected.

In truth, rights so precariously held are no rights at all, but illusions. What we have been fighting to protect has never been real, but illusory. As we move to the next parts of this series, the illusory nature of our rights will become more prominent. My hope is that not only will it further enlightened you, but serve as a wakeup call for formulating better methods of protection.

--Until Next Time--

Palooke

[1] 60 US 393 (1857).

[2] Lea Vandervelde does a great job of discussing these cases in Redemption Songs: Suing for Freedom Before Dred Scott. I encourage you to read it. You can purchase the book here https://global.oup.com/academic/product/redemption-songs-9780199927296?cc=us&lang=en&