The Problem of Slavery in Christian America: An Ethical-Judicial History of American Slavery and Racism

by Joel McDurmon

Few citizens liked the abolitionists in their day; even fewer would openly associate with them (yes, even in the North). Yet in hindsight, virtually no one today would confess the abolitionists were wrong about American slavery, even if we disagree with the unorthodox theological beliefs and associations of many of them.

It is my goal to provide Christians and conservatives with a view of how bad it really was, and why, in an effort to stimulate the level of empathy for the black cause that will lead to getting something righteous done about it.

In this book, when I use “racism,” “racist,” or derivative terms, I mean what the conservative black economist Thomas Sowell called the legitimate use of it: “a term of moral denunciation of racially discriminatory behavior.”

Part II backs up and tells the history of the churches and religious doctrines involved—and unfortunately, there is much to tell. The description also, however, designates the need for objective standards by which we critique the facts of our history and our attitudes to each other, especially when these are not pretty. The prophets—of which I am not—would have called this type of historical exercise a covenant lawsuit: judging one’s history and institutions according to the law of God, to love our neighbors as ourselves.

Had the American colonists held fast to the basic standards established in both biblical and British Common Law, the institutions of slavery they later developed would never have come to pass.4 But commerce was to triumph over principle. The colonists would seek out legal devices to circumvent the law of freedom and create a legal class of slaves that heretofore had not existed under British law.

For planters, slavery was preferable to indentured servitude because the latter created a host of freemen now looking to become planters themselves. This competition not only threated the economic livelihood of the established planters, but eventually erupted in a type of class warfare between the establishment and poor whites. Creating a class of lifetime slaves eliminated this problem. Despite the ever-present fear of slave uprisings, the slaves eventually proved less of a danger than the freed white servants.6 The planters, then, just needed some clear justification for permanently enslaving the labor.

In 1659–60, the House of Burgesses—something like our Congress, but elected only by land owners—enacted a law that recognized “negro slaves” for the first time. It provided tax breaks to foreign cargo ships only if they first delivered such slaves when they arrived at Virginian ports. Such ships, mainly Dutch, received a reduction in tariffs on tobacco to the much lower rate of Britain’s own. This subsidy for slaves probably marks the turning point at which permanently enslaved labor (a larger up-front expense, after all) became more profitable than indentures.

The master not only received the benefit of lifetime service, but lifetime enjoyment of the profits from the additional land. This practice further had a compounding effect. With every additional plot of land, the owner now had greater collateral to purchase more slaves. Planters quickly increased the practice of buying slaves on credit rather than cash.11

Dividing Blacks and Whites In 1661, the Virginia Burgesses began using law to drive a social wedge between black slaves and white indentured servants. The increasing importation of slaves ensured, naturally, also an increasing number who would run away. Many of these partnered with white servants in the endeavor. The Act stated that any white caught in the company of a runaway black slave would be punished by serving additional time for that slave’s master to compensate for the slave’s lost time. If the slave had escaped or died, the white indentured servant would be liable for 4,500 pounds of tobacco

The first arose in 1662, when the growing population of black slaves was suddenly accompanied by a growing number of mixed-race children. Under Common Law, the status of a child followed that of the father. Thus, the child of a free white male (whether the planter himself, a son, or a nearby freed white servant) and a black female slave would be free. The potential for a growing free “mixed”13 class troubled the Virginian elite in more than one way: slave mothers would be raising free children who would be considered as socially outcast as blacks, and yet as economically troublesome as the freed white indentures. Even more problematic, as such children would obviously be born out of wedlock, they would legally be considered bastards. This created two more problems. First, by law, illegitimate children were a burden to the State. Second, it opened the fathers of these children to probing investigation and possible prosecution:

From the planters’ perspective, they could eradicate every single aspect of these problems with one simple legal maneuver: jump from English Common Law to Roman Civil Law concepts. While such a leap was absolutely forbidden on English soil, the Crown’s ships and colonies were a different matter. The ships fell under Admiralty Law (a Roman derivative), and colonial soil was left ambiguous. This ambiguity left room for one of the prime turns of tyranny in the story of American slavery and racism: the imposition of the legal doctrine of partus sequitur ventrem, meaning, in this context, “the offspring follows the womb.” Whereas before, the status of the child would follow the father, it would now follow the mother. This move broke precedent in more than one way. Not only did it impose a Roman law standard in what should have been a Common Law land, it was also a law that was originally written and imposed upon livestock. If you are looking for origins of the idea that American slavery was “chattel” slavery—ownership of individuals as opposed to a mere labor right—you can certainly see it in this foundational Virginian statute that bereft black slaves of Common Law rights of persons and imposed upon them the actual legal standard of chattel. Worse, the law entailed that some masters would be owners of their own sons merely because of the ethnicity of the mother. Rather than acknowledge their own son as a son, the master would enslave them and own them. Thus, racism had trumped...

In the 1669 law, the Assembly made allowance for “the casuall killing of slaves.” The state would acquit any master, or anyone acting on behalf of a master, if “any slave resist” and “by the extremity of the correction should chance to die.” The law codified the presumption that no master would purposefully destroy his own property, and thus no such “casuall killing” could involve malice aforethought. As later developments will make clearer, however, such malice did indeed exist in many cases, especially in cases of regularly resisting or “incorrigible” slaves. Such a law simply created the moral hazard of a legal path to murder for whites over blacks. A master, fed up with a particular slave, could purposefully “correct” a slave to such extremity that he by “chance” died, and there would simply be no recourse for such actions. This would be especially true later when the courts would solidify the rule that blacks could not testify against whites in a court of law. At that point, a master could literally beat a slave to death in front of an entire body of other slaves and get away with it.26

Virginia passed a law in 1691 penalizing any white women who would give birth to “a bastard child by a Negro.” She would be fined 15 pounds (about two and a half year’s wages for a free farm laborer) and sold into indentured servitude for five years. The government split the revenue from the fine three ways among itself, the local church parish, and the informer—heavily incentivizing nosiness and invasion of privacy. The child would be held as an indenture until 30 years old.27 Under the same statute, any white male or female actually marrying a black, mixed, or Indian, bond or free, would “within three months be banished from this dominion forever.” Yet, this statute added nothing in regard to white men’s relations with black women without marriage, or for black women who bore mixed babies.

While we should not diminish any cultural stigma, particularly from the church’s perspective, upon fornication in general, the laws clearly intended to protect against miscegenation in the free population rather than guarding sexual mores in general. White males still had tremendous license, and black females were still especially vulnerable.

The same 1691 statute included the first prohibition against increasing the number of free blacks in the colony. If any master manumitted a black or “mulatto” slave, the law now required him at his own cost to deport that newly freed slave out of the colony. This decree had two major implications: first, it created a financial incentive to maintain all blacks as slaves. Only masters with significant capital could afford to free any of their slaves, and even these would now be discouraged from doing so. Poorer planters who owned a few slaves would have little if any choice. Second, it revealed overt racism: “[B]lacks had only one function in Virginian society and that was to labor perpetually for the benefit of their owners.” Otherwise, “Free blacks were viewed as undesirable elements in the population.”30

In fact, all of the supply to southern colonies arrived on ships originating from Europe, Britain, the Caribbean, or the northern colonies. So, while American slavery is so often viewed as a southern problem ended by northern agitation and eventually aggression, this is hardly the case. Many northern elites got filthy rich delivering Africans to the South. Not only did this occur, but the forces behind it grew as powerful as they did rich, later cooperating in Congress with the southern colonies to keep slavery and the slave trade legal as long as possible. Even after Congress outlawed the trade in 1808, some of these traders operated illicitly to keep the deliveries coming.

In 1645, Edward Downing wrote his brother-in-law, Governor Winthrop, expressing the desire for a “juste warre” with the Pequot so he could trade captive Indians for black slaves on the transatlantic market. His comments show the outlook of the elite at least, if not others as well: “The colony will never thrive . . . until we get . . . a stock of slaves sufficient to doe all our business.”

While a 1646 law in Massachusetts taxed black slaves as persons under the standard poll tax, this did not last. Later revisions in 1692, 1696, and 1698 taxed them as personal property, betraying a legal shift in that colony that tracked Virginia’s when she had moved from white indentured servants to black slaves.

“Between the transatlantic slave trade and the West Indian provisioning trade, it is hard to imagine any eighteenth century Rhode Islander whose livelihood was not entangled, directly or indirectly, with slavery.”

Their greater tolerance for disease, harsh work and climate, and pain allegedly “arose from their barbarism and savagery, which Europeans constantly likened to that of animals.” Therefore, racism and biology became “mutually reinforcing,” albeit according to a double standard: where blacks excelled in strength, endurance, and health, whites attributed it to a closer kinship with animals than humans. Where blacks suffered more greatly, however, it confirmed their inherent deficiency, filthiness, laziness, neglect of their children, etc.

Even such terrifying messages, however, do not stick with systematically oppressed people who have no lower to fall and nothing to lose. The impulse to fight for freedom always rises again at some point.

The code prohibited free blacks from owning slaves or servants of any but their own color. Thus, the rare instances of free blacks owning white indentures, sometimes highlighted by modern Southern apologists, among others, as if it had been a widespread reality, was ended fairly early by statute in this state.

The very next section says that if any slave was seen with any perceived weapon (including a walking staff), or was merely off his plantation without a certificate of leave from his master, then any individual could arrest that slave and deliver him or her to a constable.

Seems related to the texas abortion method

After 1723, blacks could no longer be freed in Virginia for any reason, except in rare cases “for some meritorious services.” They removed the provision for doing so if the owner provided for deportation. Now, church wardens were empowered to apprehend any unlawfully freed slave, sell him back into the slavery, and keep the money for the church.

so that slaves may finally learn their place in society, the 1735 code forbid them to wear any clothing “above the condition of slaves,” confining them to “negro cloth, duffelds, coarse kearsies, osnabrigs, blue linnen, checked linen or coarse garlix or calicoes, checked cottons or scotch plaids, not exceeding ten shillings per yard for the said checked cottons, scotch plaids, garlix or calico.” One historian comments that “the requirement that he always wear the most inferior clothing—‘negro cloth’—ensured that he never have an appearance giving him even miniscule status.”

any white person who saw a slave wearing forbidden clothing was empowered to seize the clothing on the spot for their own possession and use.

a 1754 Act aimed at readdressing the problem of stealing slaves reinforced the penalties. This gave probably the most overt definition of slaves as property in the period, and is worthwhile to close this section: WHEREAS, by the laws of this Province, negroes and other slaves are deemed to be chattels personal, and are, in every respect, as much the property of their owners, as any other goods or chattels are; . . .37

New York’s progressive code changes responded not only to crises but to a steady increase in slave numbers in general as well. By 1703, blacks totaled about 11 percent of the population. In 1711, the authorities established a slave market on Wall Street. By 1723, slaves reached 15 percent of the population. By 1732, the city imposed a stiff duty on slaves imported directly from Africa, preferring instead the already “seasoned” slaves from the Caribbean.39 In addition to increased numbers of slaves and code changes in other northern colonies, New England continued to lead the transatlantic trade in supplying the North American colonies with slaves throughout the century.

The gradual emancipation efforts in these northern states were so compromised and feeble that they freed fewer slaves than were voluntarily manumitted in southern states like Virginia and Maryland during the same decades. Worse, northerners during the graduation period often availed themselves of the window of opportunity to sell their slaves to the South rather than assume a financial loss by freeing them. By one modern reckoning, New Yorkers sold possibly twice as many slaves to the South than they emancipated. Another broadens the scope: “[I]t is probable that, to a substantial degree, the decline of slavery in the North was due not to emancipation but to the actions of northern slaveholders who were cashing in on capital gains by selling their chattel in southern markets.”38

Virginia Assembly forbade any literature that allegedly promoted insurrection or rebellion among slaves. Should a white violate this law, they could be fined up to $1,000. A black would be whipped on the first offense, and executed on a second.

Overt violation of freedom of speech

Further, any consultation or advisement from “any free person” that the state deemed would “induce, entice or excite” slaves to rebel could bring that person under a law that wielded the death penalty. In all practicality, these rules meant that the State either forbade or highly discouraged most public speech against the institution of slavery already in 1819, but certainly after 1832.41

The same act held postmasters responsible for discovering abolitionist or antislavery literature in the mail and to deliver it to a justice of the peace, whom it required to launch an inquiry into the person receiving it, and to burn the material in his presence. Anyone caught subscribing to such literature could suffer fines and imprisonment.

Calhoun gave a famous speech on the floor of the Senate, in 1837, in which he defended the perpetual enslavement of blacks as not only a necessary evil, but a “positive good.”

“A large portion of the Northern States believed slavery to be a sin [already in 1833], and would consider it as an obligation of conscience to abolish it if they should feel themselves in any degree responsible for its continuance.” The sons of this “fanatical portion of society” will grow up “to hate the people and institutions of nearly one-half of this Union, with a hatred more deadly than one hostile nation ever entertained towards another.” Indeed, “Abolition and the Union cannot co-exist.” Why not? Because, “The peculiar institution of the South” was “that, on the maintenance of which the very existence of the slaveholding South depends.” He continued in this vein: “We of the South will not, cannot surrender our institutions. To maintain the existing relations between the two races, inhabiting that section of the Union, is indispensable to the peace and happiness of both.”

He had just said neither race could have peace or happiness unless the existing system was maintained. In this system, “Never before has the black race of Central Africa, from the dawn of history to the present day, attained a condition so civilized and so improved.” Their population growth in America alone “is conclusive proof of the general happiness of the race.” Not just relative to his own history, but to all other systems of labor, for “in few countries so much is left to the share of the laborer, and so little extracted from him, or where there is more kind attention paid to him in sickness or infirmities of age.” This system was so superior to all other relations between capital and labor that, if just given enough time, it will prove itself: [T]he political condition of the slaveholding States has been so much more stable and quiet than that of the North. . . . I venture nothing in predicting that the experience of the next generation will fully test how vastly more favorable our condition of society is to that of other sections for free and stable institutions, provided we are not disturbed by the interference of others. . . . This was not a man looking for the end of slavery in twenty or even fifty years. This was a man—representing a large section of the nation, and the majority view in the South—that

Thus the Supreme Court of the United States concluded that the Constitution, and thus all federal law, could not acknowledge blacks as U.S. citizens, but merely as “articles of property.” Thus, Dred Scott “established the legal rule that all African-Americans were presumptively slaves and had no rights under the Constitution. . . . Slaves under federal law were never people. They were property without a voice in a courtroom and without rights.”26 At one point in his opinion, Taney applied the well-worn fact that the southern states would never have agreed to Union if it had meant to give citizenship and rights to the slaves. Furthermore, we should all be wary of such a doctrine, because if blacks had citizenship under the Constitution, they would have immunity from the “police regulations” used to hold them in bondage: It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished. . . . Moreover, citizenship would mean that blacks would get to exercise all the rights enumerated in the Bill of Rights: [I]t would give them the full liberty of speech in public and in private upon all subjects upon...

Following Calhoun’s lead, Hammond argued that slavery proved a positive good not only for ruling whites but for the Africans themselves: We do not think that whites should be slaves either by law or necessity. Our slaves are black, of another and inferior race. The status in which we have placed them is an elevation. They are elevated from the condition in which God first created them, by being made our slaves. None of that race on the whole face of the globe can be compared with the slaves of the South. They are happy, content, unaspiring, and utterly incapable, from the intellectual weakness, ever to give us any trouble by their aspirations.

This was a congressonl speech

Second, even if we accept the common misconception that slavery abruptly ended in the North with its emancipation efforts (it did not, as we saw in the last chapter), the North actually led the way in developing a plethora of segregation laws, paving the way for the South to follow as soon as Reconstruction began. This means that while the North may have gotten rid of slavery, it still suffered from the racism that the southerners used to justify the institution. When reminded of this, northern leaders would be hard pressed to give a good answer.

This, the Supreme Court decided, was the law and reality of the American people and the law of the land known as the Constitution: that being black meant you were “an article of property.”42 Most importantly, Taney’s decision not only rang true, historically, on his point, but it revealed that the North, too, had been willing, knowing, and complicit in the peculiar institution from the beginning, and had written that same attitude organically into their Constitution.43

In the Midwest, still “a stronghold of white supremacy,” political leaders immediately saw the potential for black recruits to fill up their state’s quota and thus spare whites from a draft, or fighting at all for that matter. Iowa Senator James Grimes was quite open about it, telling the Dubuque Times he “would see a negro shot down in battle rather than the son of a Dubuquer.” The sentiment shows how openly one could favor emancipation while remaining just as ardently racist, and the problem would survive well beyond the War.2

In an 1833 case, for example, a group of free blacks assembled for a party after carefully applying, paying for, and receiving the required permit. Despite the compliance, after the party had well ensued, around 11 p.m., a group of Key’s constables surrounded the building with “guns, pistols, and clubs,” closed in, and proceeded to rob their victims of all their money and watches. Around the same time, a constable attempted to nab a free black woman while crossing a bridge. In her attempt to flee—likely from being sold into slavery—she ended up over the bridge and in the Potomac and drowned. The matter would likely have passed in silence, as many did, had not William Lloyd Garrison’s early compatriot Benjamin Lundy used their paper to expose it and call for federal action, implicating Key’s administration: “There is neither mercy nor justice for colored people in this district.” Instead of denouncing the police corruptions, Key blasted the abolitionist papers who dared criticize them.

In 1836, he prosecuted the young doctor Reuben Crandall for possessing copies of The Liberator and The Anti-Slavery Reporter in his luggage. While eventually acquitted by a jury, Key kept Crandall in jail for several months up to that point. During the stay, he contracted a fatal case of tuberculosis. The trial drew national attention, and Key used the platform to advance his racism: “Are you willing, gentlemen, to abandon your country; to permit it to be taken from you, and occupied by the Abolitionist, according to whose taste it is to associate and amalgamate with the Negro?”

“[I]n Baltimore, after 1839, a [free] black arrested as a vagrant might be sold for a period of one year.”12 Free blacks in the North, however, faced some of the same restrictions imposed on even black slaves in the South. Ohio refused free blacks the right to serve on juries as well as the right to testify against a white. Worse, the Ohio legislature in 1839 denied black and mulatto residents any “constitutional right to present their petitions to the General Assembly for any purpose whatsoever.” The Assembly declared that any such petition it did receive would be a condescension of grace on the Assembly’s part, and expressed or implied no constitutional right of the petitioners.

The modern historian Leonard Curry certainly does not exaggerate when he concludes, [N]ot one sentient black in antebellum America could escape the knowledge that he lived in a white land under a white government that administered white law for the benefit of a white population, and in the eyes of all these he was a being inferior to all but the most base and degraded of the whites, and that no amount of conformity to white mores and customs or acceptance of white values could change that reality.18 This reality did more than illustrate northern hypocrisy. It served as a ready justification for the immediate post-war changes in southern laws—from “slave codes” to “black codes”—and Jim Crow laws well beyond.

Leon Litwack summarizes the big picture well: Racial segregation or exclusion thus haunted the northern Negro in his attempt to use public conveyances, to attend schools, or to sit in theaters, churches, and lecture halls. But even the more subtle forms of twentieth-century racial discrimination had their antecedents in the ante bellum North: residential restrictions, exclusion from resorts and certain restaurants, confinement to menial employments, and restricted cemeteries. The justification for such discrimination in the North differed little from that used to defend slavery in the South: Negroes, it was held, constituted a depraved and inferior race which must be kept in its proper place in a white man’s society.

The laws concerning vagrancy, also, were full of discriminations and in many cases assured to the white magistrates wide discretion in stamping blacks as vagrants, and assigning them to the highest bidder to work out fines. Mississippi, Louisiana, and South Carolina furnished the most notorious features of this legislation. In Mississippi the freedmen could not own land, nor could they even rent it save in incorporated towns. A local ordinance in Louisiana required every negro to be in the regular service of “some white person, or former owner, who shall be held responsible for the conduct of said negro.” South Carolina forbade persons of color to engage in any trade or business other than husbandry and farm or domestic service, except under a license requiring a substantial annual fee; and in the code concerning master and servants embodied many rules that strongly suggested those formerly in force as to master and slave. To a distrustful northern mind such legislation could very easily take the form of a systematic attempt to relegate the freedmen to a subjection only less complete than that from which the war had set them free.22

Likewise, any black presuming to “intrude himself” into a church service or public conveyance segregated for whites only could suffer the same punishment. The state found a convenient ruse of equality here, though, by providing the same punishment for any white who would likewise intrude into a segregated black space—the obvious reality being that, in an anti-black, racist society, such segregation was exactly what whites wanted, while blacks counted it exclusion.25

Southerners used apprenticeship laws in multiple states to bind thousands of black minors in a new version of indentured servitude without consent.

Texas and Louisiana both tried to stop black women from becoming permanent homemakers of their own homes by stipulating that all labor contracts with blacks “shall embrace the labor of all the members of the family able to work”—a feature that forced the women and children alike back into the fields.27

just one statistical glimpse will reveal the extent of the problem: in the single year of 1865–1866, Texas courts indicted around 500 white men for murdering blacks; but not one was convicted.