Slavery, Legal Aspects of

Slavery's evolution from an accepted worldwide practice to its present status as an international crime, took place over the course of only a century and a half—from about the beginning of the nineteenth century to the middle of the twentieth century. Slavery has existed since ancient times, dating back to at least the times of the Old Testament. The practice was deeply engrained in ancient Rome, Greece, and the cultures of the ancient near east. The Bible contains numerous references to the practice of slavery, and Roman law had elaborate statutes and precedents for the regulation of slaves. Well before the Europeans went to the New World, there was an elaborate slave trade between the Baltic and Mediterranean regions, and slavery was legal almost everywhere in medieval and early modern Europe. Throughout the Islamic world, slavery was a fixture of society. Long before Europeans went to Africa or the New World, Arab traders were crossing the Sahara to bring slaves from south of the desert for sale in the Arab world. Some of these African slaves eventually ended up in Sardinia, Sicily, and southern Europe.

Direct European involvement in the African slave trade to Europe began in 1434, when the Portuguese began transporting Africans to Portugal for labor. The practice was institutionalized in Europe by the sixteenth century. For the next two centuries, slavery and slave-trading in Africa were not only permitted by Western governments, but were actively protected and encouraged as a lucrative branch of international commerce. During the seventeenth and eighteenth centuries, slavery was considered legal under the law of nations if not the laws of nature. In 1772, in the case of Somerset v. Stewart, Lord Mansfield of the King's Bench stated that in England

[t]he state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only 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.

But this attitude did not hold true for the American colonies. Nor was it the dominant philosophy in the many European nations, including Holland, Spain, France, and Portugal, that inherited a Roman legal tradition that included slavery.

Slave Laws in the New World

At the beginning of the American Revolution slavery was legal everywhere in the New World, and every Old World country involved in colonization accepted the legitimacy of the practice. England and France had some case law, such as Somerset, that undermined slavery in the home country, but neither of them found anything wrong with permitting slavery to continue in their colonies, nor did they interfere with the African slave trade.

During the Revolution, all of the new American states banned the African slave trade, basing their decision, in part, on economic necessity. After the war, the states continued the ban for a combination of reasons, including economics, prudence (the fear of newly imported Africans), and humanitarian concerns. Between 1780 and 1804, all the New England states, as well as Pennsylvania, New York, and New Jersey, either ended slavery outright, or passed gradual emancipation acts. With gradual emancipation, the children of all slave mothers would be born free, and thus it was expected that slavery would literally die out.

The result of these laws was that, in one section of the nation, slavery was either completely illegal, or legal only for a small and diminishing class of existing slaves. The U.S. Constitution nevertheless continued to recognized slavery in a variety of ways, and it remained an ongoing practice in much of the new nation. Until the Civil War, the Supreme Court consistently protected the rights of slave masters to their property. Although some northern state courts held that slavery was contrary to natural law and state law, at no time in this period did the American federal courts find that slavery was illegal under either domestic law or international law.

Banning the Slave Trade

In 1807 and 1808 the governments of Great Britain and the United States banned the African slave trade and declared all who continued to practice it to be pirates. This piracy, however, was limited to those who violated British and American law by attempting to sell their slaves in U.S. or American markets. If the slaves were destined for countries where the practice was legal, both U.S. and British courts upheld its legality. Thus, for example, in the famous 1841 case of The Amistad, the U.S. Supreme Court freed a group of Africans who had been illegally imported to Cuba, because their importation violated international treaties and agreements. However, had the slaves on The Amistad been legally held as slaves in Cuba, the U.S. Supreme Court would have been prepared to return them to Cuba.

Illustrative of this is the case of The Antelope (1825), which involved a Spanish ship seized by pirates and eventually taken into a U.S. port by the American Navy. Chief Justice John Marshall ordered that some of the slaves on that unlucky ship be returned to the Spanish government, because their slave status was legally recognized under Spanish law. Others on board the ship, however, were deemed to be free, because they had been illegally taken from Africa. The court ordered that lots be drawn to determine which of the 280 Africans on the ship would be considered slaves, and which would become free. In reaching this result, Chief Justice Marshall noted that the African slave trade was "contrary to the law of nature" but that it was "consistent with the law of nations" and "cannot in itself be piracy." This analysis led Marshall to uphold the right of foreigners to engage in the slave trade, if their own nations allowed them to do so. Marshall wrote: "It if be neither repugnant to the law of nations, nor piracy, it is almost superfluous to say in this Court, that the right of bringing in for adjudication in time of peace, even where the vessel belongs to a nation which has prohibited the trade, cannot exist."

Indeed, throughout the first half of the nineteenth century, Anglo-American judges and diplomats resisted finding that slavery and the slave trade were against the laws of nations or international law. Meanwhile, most of the nations of Western Europe banned the trade for their nationals and in their colonies, and prohibited their ships to engage in the trade. In 1792, Denmark declared that the slave trade would be illegal as of 1803. The United States and Great Britain followed suit in 1807, as did France in 1815. Britain freed all slaves within its jurisdiction in 1833. At the same time, many of the European peace treaties contained statements condemning the slave trade as repugnant to the principles of justice and humanity, and called upon each other for its eradication. In 1815 the Declaration at the Congress of Vienna declared:

The commerce, known by the name of Slave Trade (Traite des Nègres d'Afrique) has been considered, by just and enlightened men in all ages, as repugnant to the principles of humanity and universal morality; . . . [so that] . . . at length the public voice, in all civilized countries, calls aloud for its prompt suppression . . . [and] several European Governments have virtually come to the resolution of putting a stop to it.

However, none of these treaties contained concrete measures for stopping the slave trade. Nations did not consider the transport of slaves on the high seas a violation of the law of nations that justified encroaching upon another nation's sovereignty. Under the doctrine of state sovereignty, a nation had the right to adhere to its own laws within its own borders and on ships flying its flag. Thus, nations did not have the right to stop and search another nation's vessels on the high seas. The one recognized exception to this rule was for acts committed on the high seas that were condemned as acts of piracy and thus outlawed by the law of nations. In those cases, every nation had the right to punish certain offenses committed onboard ships, regardless of the flag under which the offending ship sailed. By declaring that slavery was not a crime against the law of nations, the offense did not meet the criteria for this exception, however.

As late as 1928, James Brierly, the British publicist, wrote that it was a rule of law of the sea, as established by nineteenth century slave trading cases, that the jurisdiction of each nation was limited to its own ships and nationals. Although he recognized the exceptions of "hot pursuit" and piracy, slavery and slave trading were still not included in either exception. However, in the early nineteenth century, Britain entered into a series of bilateral agreements with Portugal, France, the Netherlands, Spain, Brazil, Haiti, Uruguay, Venezuela, Ecuador, Bolivia, Chile, the Persian Gulf states, Mexico, Texas, and Sweden. According to these agreements, the signatories declared the slave trade to be an act of piracy and thus granted each other the right to search or visit ships flying the other's flag, if those ships were suspected of transporting slaves.

In 1841 Austria, Great Britain, Prussia, Russia, and France signed the Treaty for the Suppression of the African Slave Trade, commonly known as the Treaty of London. This was the first multilateral treaty to proclaim the trade in slaves an act of piracy. It provided that each party had the power to stop merchant ships flying the others' flags in prescribed zones, but was weakened by the fact that France never ratified it. In 1862, after the outbreak of the U.S. Civil War, the United States and Great Britain signed a new Treaty for Suppression of African Slave Trade, commonly known as the Treaty of Washington. This was the first time the United States granted another nation the right to board and search any of its ships if they were suspected of engaging in the slave trade, albeit such searches could be undertaken only in a narrowly prescribed zone. The treaty provided for the special courts made up of equal numbers of individuals from each nation, with one established in Sierra Leone, one at the Cape of Good Hope, and one in New York. However, these courts only functioned until 1870, when they were replaced by the more traditional trial process carried out by the nation to whom the captured ship belonged.

By the end of the nineteenth century, the market for African slaves in the United States and Europe was nonexistent, but continued to flourish in Africa and the Middle East. Toward the end of the century, many European nations sought to not only prevent the importation of slaves into their own countries, but into other nations as well. The General Act of the Conference at Berlin Respecting the Congo, February 26, 1885, was the first multilateral trade agreement to address this traffic. The act provided that the entire Congo Basin, that region of Africa from the Atlantic to the Indian Ocean, would be an area of free trade without import duties. It also provided that, within this region, "trading in slaves is forbidden in conformity with the principles of international law as recognized by the signatory powers," but contained no enforcement provisions.

In 1889 representatives from seventeen countries met at a conference in Brussels with the goal of finally putting an end to the slave trade and the crimes it engendered. The comprehensive General Act for the Repression of the African Slave Trade, July 2, 1890, commonly known as the Brussels Act, contained several articles obligating the parties to undertake economic, legislative, and military measures towards the eradication of slavery in Africa. It provided for the establishment of military stations in the interior of Africa to prevent the capture of slaves, to provide for the interception of caravans, and to organize expeditions. It also contained a comprehensive system to eradicate the slave trade at sea. The act applied to a maritime zone that included the Red Sea and the Indian Ocean, where most of the slave trading was taking place. There were rules concerning the use of signatories' flags by "native" vessels, the embarkation of African passengers, and stopping and examining ships believed to be engaged in the slave trade. The officer in command could stop any ship under 500 tons that was operating within the prescribed zone. He could board the ship and examine the list of passengers and crew. However, cargo could be searched only on those ships flying the flag of a signatory to the treaty. If the investigating officer believed that the ship was engaged in the slave trade, he had the right to bring it to the nearest port of the nation whose flag the ship was flying. The act outlined rules for the trial of the seized ship. This act was still in force at the outbreak of World War I.

Efforts to Eliminate Slavery

At the end of World War I, a new convention was achieved between nations with the goal of revising earlier treaties and newly addressing the elimination of slavery. This formal title of this new agreement was the Convention Revising the General Act of Berlin of February 26, 1885, and the General Act and Declaration of Brussels, July 2, 1890. It is more familiarly known as the St. Germain-en-Laye Convention, and it was signed on September 10, 1919, by Belgium, Great Britain, France, Italy, Japan, Portugal, and the United States. It was subsequently ratified by all the other signatories to the Treaty of Versailles as well. The general purpose of the convention was to restore the previous system of free trade within a prescribed zone in Africa, as well as the Indian Ocean and Red Sea regions. With regard to slavery and slave trading, the parties merely agreed to "endeavor to secure the complete suppression of slavery in all its forms, and of the slave trade by land and sea." The right to stop and search vessels on the high seas, a feature of both the older treaties, no longer existed.

Following World War I, slavery was one of the first issues addressed by the League of Nations. In 1924, it established a Temporary Slavery Commission charged with studying the existence of slavery throughout the world. The commission reported that the status of slavery was recognized in Abyssinia (Ethiopia), Tibet, Nepal, and most "Mohammedan States," including Afghanistan, the Hedjaz, and other Arab nations. It reported that slave trading was openly practiced in the Arabian Peninsula, and that most of the slaves were originally from African territories. The study led the League to adopt the Slavery Convention of September 25, 1926, which was immediately signed by twenty-five League of Nations members. The convention entered into force on March 9, 1927, but remained open for signature until April of that year, by which time eleven more members had signed.

The Slavery Convention was the first time international legislation sought the abolition of slavery and the slave trade. It defined slavery as the "status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised." The slave trade was defined to include all acts involved in the capture, acquisition, or disposal of a person with the intent to reduce him or her to slavery; all acts involved in the acquisition slaves with a view to selling or exchanging them; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged and, in general, every act of trade or transport in slaves. Due to disagreements over whether forced labor was analogous to slavery, the provisions regarding the two institutions were treated separately. Article 5b of the convention stated, "compulsory or forced labor may only be exacted for public purposes," and sought to prevent forced labor from "developing into conditions analogous to slavery."

The signatories agreed to prevent and suppress the slave trade, and to work progressively towards the complete abolition of slavery within their jurisdictions. The word "progressively" was inserted because many nations were concerned about the hardships and social upheavals that would be created if all slaves were suddenly liberated. The convention did not outlaw slave trading as an act of piracy. Instead, it provided that each nation would take appropriate measures to prevent the embarkation, disembarkation, and transport of slaves within their territorial waters and upon vessels flying their respective flags. Its signatories also agreed to promulgate a convention providing for rights to stop and search vessels suspected of slave trading outside of their territorial waters, as provided in the Convention on Supervision of International Trade in Arms and Ammunition and in Implements of War of June 17, 1925. However, such an agreement was never promulgated. The only enforcement provisions in the convention were that each signatory would forward to the League of Nations the laws and regulations they enacted pursuant to the convention, and that each nation had the right to bring any dispute regarding implementation of the convention to the Permanent Court of International Justice.

As of 1937, only twenty-nine nations had ratified the Slavery Convention and were therefore affirmatively bound by its terms. The United Nations adopted the convention in 1953, and adopted a Supplementary Convention on the Abolition of Slavery, The Slave Trade, and Institutions and Practices Similar to Slavery in 1956. The Supplementary Convention, which remains in force, applies the Slavery Convention to debt bondage, serfdom, the sale of women, and child labor practices.

Slavery and Human Rights

Freedom from enslavement did not become a fundamental human right solely as a result of states ratifying and acceding to the Slavery Convention. The convention is not framed in terms of preserving a fundamental right. Instead, it outlines the duties of nations to eradicate slavery and the slave trade without declaring that every human being has the right to be free from enslavement. In fact, the signatories to the Convention did not even agree to completely eradicate slavery; they only agreed to "progressively work for its abolition." However, the League of Nations did establish first a temporary and later a permanent Advisory Committee of Experts on Slavery, which was authorized to receive, organize, and publish information furnished by the signatories to the convention, and to make recommendations regarding the eradication of slavery in particular nations. The committee was formed to study possible means of eradicating slavery and to examine the feasibility for the League of Nations to provide financial assistance to nations needing help in solving their slavery problems. It was specifically not intended to deal with forced labor. Its proceedings were confidential, and it could communicate its findings only through governments. It could not communicate directly with non-governmental persons or organizations. By 1937 the committee reported that the League of Nations had been largely successful in eliminating the traffic in slaves by encouraging members to outlaw slavery within territories under their control. However, it found it more difficult to convince independent members and nonmembers to follow suit. At the out-break of World War II, slavery continued to be practiced in some form in Liberia, Ethiopia, and parts of the Middle East.

In the early twenty-first century, the world continues to grapple with slavery and abuses resembling slavery. In the United States, sexual and labor exploitation are often considered forms of slavery and are outlawed. Nevertheless, tens of thousands of people are held against their will in the United States. Slavery is not a crime in some European Nations. However, trafficking in human begins as defined by the European Union law is firmly established as a crime and a violation of human rights. Moreover, every general international human rights instrument proclaims the right of every person to be free from slavery and slavelike practices: the Universal Declaration of Human Rights (art. 4), the International Covenant on Civil and Political Rights (art. 8), the European Convention on Human Rights (art. 4), the American Convention on Human Rights (art. 6) and the African Charter on Human and Peoples' Rights (art. 5). Most recently, the Rome Statute of the International Criminal Court included slavery as a crime against humanity (art. 7) and when committed during war time, declared it to be a war crime (art. 8).

SEE ALSO African Americans; Rosewood; Slavery, Historical

BIBLIOGRAPHY

DuBois, W. E. B. (1898). The Suppression of the African Slave Trade to the United States, 1638–1870. Cambridge, Mass.: Harvard University Press.

Finkelman, Paul (2001). Slavery and the Founders: Race and Liberty in the Age of Jefferson, 2nd edition. Armonk, N.Y.: M.E. Sharpe.

Miers, Suzanne (2003). Slavery in the Twentieth Century: The Evolution of a Global Problem. Walnut Creek, Calif.: AltaMira Press.

Morris, Thomas D. (1996). Southern Slavery and the Law, 1619–1860. Chapel Hill: University of North Carolina Press.

Noonan, John T., Jr. (1977). The Antelope: The Ordeal of the Recaptured Africans in the Administrations of James Monroe and John Quincy Adams. Berkeley: University of California Press.

Redman, Renee C. (1994). "The League of Nations and the Right to be Free from Enslavement: The First Human Right to be Recognized as Customary International Law." Chicago-Kent Law Review 70:759–802.

Watson, Alan (1989). Slave Law in the Americas. Athens: University of Georgia Press.

Renee C. Redman
Paul Finkelman