Slavery and Civil Liberties

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SLAVERY AND CIVIL LIBERTIES

In 1796 st. george tucker, of Virginia, the law professor and judge, wrote A Dissertation on Slavery. Tucker noted that Americans had fought a revolution for liberty, swearing to "live free or die." At the same time, he said, "we were imposing upon our fellow men, who differ in complexion from us, a slavery, ten thousand times more cruel than the utmost extremity of those grievances and oppressions, of which we complained." Tucker lamented that a people who had declared "That all men are by nature equally free and independent " had "in defiance of so sacred a truth" tolerated slavery. In the years that followed, it became clear that slavery would also threaten civil liberties of white citizens, in the North as well as the South.

Slavery, Tucker said, totally abolished the slave's right to liberty and property. After a "melancholy review" of brutal slave laws, Tucker concluded that the right to personal security had "at times been wholly annihilated or reduced to a shadow."

Slave codes typically denied slaves most basic rights: Slaves were required to obey their masters and to submit to whipping for actual or imagined infractions. They could not own property; travel without a pass; bear arms without special permission; assemble in groups of more than five; preach except under the supervision of their masters; or be taught to read. Husbands and wives and parents and children might be separated by sale. State laws often punished slaves much more harshly than whites for the same offense. Blacks, slave or free, were not permitted to testify in cases where whites were a party. Of course, some masters allowed slaves greater freedom than the letter of the law provided, including having limited property and even being taught to read.

Southern laws denied slaves all but the most basic protection of the law. Murder of a slave and (by the late antebellum period) torture were prohibited; but since slaves could not testify against whites, these protections were often unenforceable. In 1829 in State v. Mann, a woman held as a slave had committed "some small offense" for which the man who had rented her for a year "had attempted to chastise her." When the woman fled and refused to stop, he shot her. The North Carolina Supreme Court said that the renter enjoyed the rights of the master, and announced "we cannot allow the right of the master to be brought into discussion in the Courts of Justice. The slave, to remain a slave, must be made sensible, that there is no appeal from his master.…"

Basic constitutional protections of liberty and equality did not extend to slaves. For example, Virginia's highest court held that the guarantees of the state's Bill of Rights did not protect them.

The Fugitive Slave Act of 1850 denied blacks claimed as slaves a right to testify or to a trial by jury before being delivered to a state where their color gave rise to a legal presumption that they were slaves. Opponents of slavery unsuccessfully invoked the right to a civil jury trial under the seventh amendment and other rights of due process under the federal bill of rights.

Nor were denials of basic rights limited to slaves. In dred scott v. sandford (1857), Chief Justice roger b. taney said that all blacks, free as well as slave, including those who were recognized as citizens by Northern states, were entitled to no rights or privileges under the federal Constitution. They had, as far as the Constitution was concerned, no rights a white man was bound to respect.

Many states and territories denied free blacks basic rights. For example, the Oregon territory denied them the right to testify in cases in which a white man was a party; to own property; or to enter the state. john a. bingham was an antislavery congressman from Ohio who later drafted the basic guarantees in section 1 of the fourteenth amendment. Bingham insisted that free blacks were American citizens and that the ban on their testimony where whites were parties to the litigation denied these citizens of the United States the national privilege not to be deprived of life, liberty, or property without due process of law.

Some abolitionists went further and insisted that the very institution of slavery, even in the states where it existed, violated the federal Bill of Rights—by denying people their liberty without due process of law. Since no legal process justified the denial of liberty to the slave and their descendants, slaves had, the argument insisted, been denied liberty without due process. While this view was not widely shared as to slaves in the Southern states, the republican party platforms of 1856 and 1860 did announce that slavery in the territories violated the due process clause of the Fifth Amendment.

The denials of civil liberties discussed so far affected slaves and free blacks. But slavery had a more pervasive effect on liberty. In defense of slavery the South became a closed society in which discussion of one of the basic political and human rights issues of the day was forbidden.

With the rise of abolitionism in the 1830s, the Southern slave–owning elite began to demand that liberty in the North and South be restricted in order to protect the institution of slavery. Southern states demanded that abolition speech and press be silenced and abolition associations be prohibited.

The U.S. house of representatives passed a gag rule prohibiting reading or discussing antislavery petitions in Congress. Southern states passed laws making it criminal to publish items tending to cause slaves or free blacks to become discontent, a category that included most criticism of slavery. The Kansas Territory passed similar laws. What was not accomplished by law was enforced by mobs. As abolitionist evangelists attempted to convert Northern states to abolition in the mid-1830s, and after abolitionists sent their pamphlets to the Southern elite, Southerners exploded. A group of men seized sacks of mail from the Charleston post office and burned abolitionist publications. Southern slave holders and their allies demanded action against abolitionists, and many Northerners responded affirmatively.

Federal postmasters refused to mail abolitionist publications destined for the South. Northern mobs broke up abolition meetings and destroyed abolition presses. Elite Northerners, including prominent political leaders and "men of property and standing," cheered, justified, and often led the mobs. But these attacks on the freedom of speech produced a backlash in the North.

By 1856 the newly formed Republican Party opposed expansion of slavery into new federal territories. Its slogan was "free speech, free soil, free territory, free men and Fremont." But the Southern quarantine against antislavery expression meant Republican candidates for President were unable to campaign in most of the South. The Constitution apparently provided no protection. In 1833, in barron v. city of baltimore, the Supreme Court had ruled that the guarantees of the federal Bill of Rights did not bind the states. In 1860 the North Carolina Supreme Court upheld the conviction of a minister for circulating an antislavery book used as a campaign document by Republicans in the North.

In response to suppression of antislavery speech in the South and attempts to suppress it in the North, many Americans including leading Republicans began to insist that freedom of the press, free speech, and religious liberty were basic rights or privileges belonging to all individuals throughout the nation and which the states should obey.

This ideal contributed to the ratification of the Fourteenth Amendment in 1868. The amendment provided that all persons born in the nation and subject to its jurisdiction were citizens and that no state could abridge the privileges or immunities of citizens of the United States or deny to any person equal protection of the laws or due process. Many read it as guaranteeing basic national liberties to all Americans against state denial and as a direct response to the suppression of civil liberty in the interest of slavery in the thirty years before the civil war. But in the 1873 slaughterhouse cases the Supreme Court emptied the privileges or immunities clause of any significant meaning. And for many years the Court continued to hold guarantees of the federal Bill of Rights inapplicable to the states. Only in 1925 did the Court suggest that freedom of speech was protected against state denial by the incorporation doctrine.

The legacy of slavery lingered long after the passage of the reconstruction amendments. Americans of African descent were segregated in their housing, educated in segregated schools starved of funds, and in much of the South denied the voting rights they had been guaranteed by the fifteenth amendment. During the civil rights revolution of the 1960s the nation began to protect Americans of African descent from segregation and from denial of their right to vote. The nation also protected them in their first amendment and Fourteenth Amendment right to protest. By this time the Court had held most of the guarantees of the federal Bill of Rights applicable to the states.

The institution of slavery denied basic rights to slaves and to free American citizens. The struggle to abolish slavery produced constitutional guarantees of liberty that promised protection for basic liberties to all Americans.

Michael Kent Curtis
(2000)

Bibliography

Barnes, Gilbert H. 1933 The Antislavery Impulse, 1830–1844. New York: D. Appleton-Century Co.

Curtis, Michael Kent 1993 The 1859 Crisis Over Hinton Helper's Book. The Impending Crisis: Free Speech, Slavery, and Some Light on the Meaning of the First Section of the Fourteenth Amendment. Chicago-Kent Law Review 68: 1113–1177.

——1995 The Curious History of Attempts to Suppress Anti-Slavery Speech, Press, and Petition in 1835–37. Northwestern University Law Review 89:785–870.

——1997 The 1835 Killing of Elijah Lovejoy by an Anti-Abolition Mob: Free Speech, Mobs, Republican Government, and the Privileges of American Citizens. UCLA Law Review 44:1109–1184.

Dickerson, Donna L. 1990 The Course of Tolerance: Freedom of Press in Nineteenth-Century America. New York: Greenwood Press.

Eaton, Clement 1964 The Freedom-of-Thought Struggle in the Old South. New York: Harper & Row.

Miller, William Lee 1996 Arguing About Slavery: The Great Battle in the United States Congress. New York: Knopf.

Richards, Leonard L. 1970 Gentlemen of Property and Standing: Anti-Abolition Mobs in Jacksonian America. New York: Oxford University Press.

Encyclopedia of the American Constitution