Research Exercise: The Rights of Slaves

Recently I came across the following claim in a comments section following an article on blacks and the Confederacy.

Slaves had rights — very, very limited ones, to be sure, but rights nonetheless, some bestowed by law, some by custom. It varied by state, but their rights included support in sickness and old age when they could not work (forerunner to Medicare and Medicaid?); the right to lighter work for women, especially during pregnancy; the right to limited religious instruction; the right to marry; even the right to give testimony, in certain circumstances.

Well, folks, have at it.  How true are the claims made in the paragraph?

ADDITION: From the same source …

If you can’t document your claim with reliable source material from that era, becomes an anecdote and an opinion.

Note the source did not document her own claims in her comment.  Nor do I see documentation for this claim:

About 25% of the slave population was literate because their work required them to read and write (slave foremen of plantations had to be able to read state agricultural directives and complete reports on crop yield, etc.; slave builders had to be able to read blueprints, and so forth).

30 thoughts on “Research Exercise: The Rights of Slaves

  1. Ray O'Hara June 15, 2011 / 4:17 am

    A classic example of theory meeting reality and theory being decisively defeated.

    but it does highlight how little we know or discuss slave society and culture.

    there was clearly some sort of inter-plantation communication among slaves. there was the underground railroad. , how did word of that spread?. They also knew about the War and a little of its purpose and of Lincoln.

    In all the histories we learn that the war was about slavery, but all the histories then focus strictly on the Whites. the slaves are little more than background scenery appearing only as refugees for the Union to deal with but even then the narrative is still about how the Whites dealt with the problem.

    • Andy Hall June 15, 2011 / 8:38 am

      Ray, you might want to look at Andrew Ward’s The Slaves’ War, which does make a good effort at addressing some of these questions. It’s a choppy read, in part because he relies heavily on the slave narratives collected by the WPA, which are themselves generally short and lacking much detail, but he also organizes the material chronologically, which helps show how the conflict unfolded from that perspective.

    • Mike Musick June 15, 2011 / 9:23 am

      Ray: Regarding how slaves communicated with one another, see the pathbreaking article “Rebellious Talk and Conspiratorial Plots: The Making of a Slave Insurrection in Civil War Natchez,” by Justin Behrend in “The Journal of Southern History,” Vol. LXXVII, February 2011, Number 1, pp. 17-52. Behrend uses Southern Claims Commission records created shortly after the war to document interactions between enslaved persons. This represents the fruits of incredibly tedious research, and that perhaps explains why this source has not (to my knowledge) been exploited before.

      • ray o'hara June 15, 2011 / 12:33 pm

        Mike and Andy, thanks, I’ll check them out.

  2. Andy Hall June 15, 2011 / 6:39 am

    Most of that is custom, not right. Furthermore, many of those claims that do have a basis in the law, are not established in the constitutions of those states (much less the U.S. Constitution) and further established by case law, and so cannot really be considered “rights” as we understand them today.

    Here is the entire section of the Texas State Constitution, adopted in 1861 upon Texas joining the Confederacy, involving slaves:

    SEC. 1. The Legislature shall have no power to pass laws for the emancipation of slaves.

    SEC. 2. No citizen, or other person residing in this State, shall have power by deed, or will, to take effect in this State, or out of it, in any manner whatsoever, directly or indirectly, to emancipate his slave or slaves.

    SEC. 3. The Legislature shall have no power to pass any law to prevent immigrants to this State, from bringing with them such persons of the negro race as are deemed slaves by the laws of any of the Confederate States of America; provided, that slaves who have committed any felony may be excluded from this State.

    SEC. 4. In the prosecution of slaves for crimes of a higher grade than petit larceny, the Legislature shall have no power to deprive them of a trial by jury, except in cases arising under the laws concerning insurrection of slaves.

    SEC. 5. Any person who shall maliciously dismember, or deprive a slave of life, shall suffer such punishment as would be inflicted in case the like offence had been committed upon a free white person, and on the like proof; except when such slave has committed, or attempted to commit, a rape on a white female, or in case of insurrection of such slave.

    SEC. 6. The Legislature shall have power to pass laws which will oblige the owners of slaves to treat them with humanity.

    Not a whole lot of “rights” enunciated there; the only actual protections there are against outright murder and dismemberment, and even those are allowed in some particular circumstances. In fact, the 1861 Texas Constitution differed from the 1845 Constitution, adopted upon joining the U.S., in that this version absolutely bars emancipation or manumission, either by the legislature or bu individual slaveholders.

    So yeah, whoever wrote that is either deeply ignorant or deeply mendacious. Or both.

    • Marc Ferguson June 15, 2011 / 10:07 am

      Andy,
      As you probably know, Steven Hahn discusses, in _A Nation Under Our Feet_, the long process slaves engaged in to carve out some spaces of freedom for themselves, and while they themselves probably viewed these as hard-won rights, they were never “rights” in the sense of being viewed as rights by whites or the law.

  3. Lyle Smith June 15, 2011 / 9:32 am

    Andy,

    I tend to think the commenter above is trying to articulate what was promulgated in the Texas State Constitution and elsewhere. Those certainly are limited legal rights, but legal rights nonetheless. The Medicare/Medicaid comment I think is hyperbole that suggests what is said in Section 6.

    Custom in the absence of law is arguably the law (IS the law if enforced). This kind of argument is popular today among many international law scholars who promote the idea of international customary law in the absence of treaty law or an international legal code.

    I’m with you that slaves didn’t have very many rights and what rights they had really were up to their masters and the other white people that touched their lives… but it is true that they had some legal rights. Of course those rights were nothing like that of even a white woman in antebellum America.

    • Brooks D. Simpson June 15, 2011 / 9:47 am

      Well, we are looking at an 1861 document from one state and interpreting it rather generously. After all, when we look at emancipation, we see that the freedpeople often sought to have slave marriages that they recognized certified in ceremonies; that would tell me that masters did not recognize these marriages as a matter of “right,” but, when they did so, as offering an advantage to them (namely, less likely for a male to attempt to escape and thus abandon wife and children). What the original poster claims are “rights” shows a fundamental misunderstanding of the concept of “rights.” For example: would you overwork a pregnant slave woman given that you had a property interest in healthy offspring? That’s not a “right.” It’s not a “right” if it’s up to the master as to whether it is a right. It’s a practice determined by opportunity and interest.

      I mean, come on, let’s get serious. Did a slave woman have a right to her own body? Protection from rape? The ability to prevent her children from being sold as a right? Do we have cases of elderly slaves suing in court because they thought they were overworked? Did women sue because they did not get lighter work?

      Nor do I go along with the notion of “custom.” It comes back to the interest of the master. Rights are something people possess, not that masters of slaves permit.

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  4. Brooks D. Simpson June 15, 2011 / 9:59 am

    Of course, it could be worse. Take this comment from another contributor to the comments section responding to the same article:

    The confederate flag HONORS BLACK MEN who fought in this war!!!!! This is the highest honor a person can receive, but most Blacks don’t know the true meaning behind this flag.

    I was blind to the truth until until I read a peace of this flag and the Black men, who WON THE WAR FOR THE CONFEDERATES.

    Hard to know where to start with this one.

  5. Lyle Smith June 15, 2011 / 10:03 am

    Of course, of course… arguably there were so few rights that there were no rights. Effectively that is overwhelmingly the case… but because of what customs there were (I’m not very knowledgeable about this but the Texas law suggests there were some such customs practiced before 1861) and what is written in that Texas constitution, it cannot be absolutely said that there were no rights. That’s all I’m saying.

    What about masters being punished by the State for harming their slaves? Did this ever happen?

    • Brooks D. Simpson June 15, 2011 / 10:10 am

      If we go into the “ever” happen, someone will bring up a case, and then we’ll get an equally misleading impression. That’s like saying no blacks fought for the CSA. I’m sure some did, but I doubt their motives were so easily understood, and we know of people who act contrary to what we assume should be their best self-interest.

      However, it was not unusual to see someone punished for harming someone else’s slave on the grounds that it damaged property.

      Not too long ago there was a lot of work being done on the law of slavery, namely, criminal and civil cases involving slaves and legislation that wrestled with the dual legal identity of slaves as people and property. Moreover, I see the Texas 1861 movement as part of the “reform slavery” movement that really took off after the publication of Uncle Tom’s Cabin. White southerners believed that if they acted to remove the causes that led to an indictment of slavery, abolitionists would find it more difficult to attack it. By the way, someone who advocated just such a response was William T. Sherman when he was in Louisiana prior to the war.

      • Lyle Smith June 15, 2011 / 10:26 am

        “However, it was not unusual to see someone punished for harming someone else’s slave on the grounds that it damaged property.”

        This is a good point: they were just chattel property after all. So not exactly the legal status of an actual human being. What “rights” they did have came to them because they were property.

        William T. Sherman is probably my favorite Civil War personality. He was a smart guy.

    • Andy Hall June 15, 2011 / 10:43 am

      What about masters being punished by the State for harming their slaves? Did this ever happen?

      I’ll defer to others with more specific knowledge, but in Texas it would have been a rare occurrence. There was one fairly egregious case in 1852, in Waller County (NW of Houston) where a slave named John, transporting a load to Houston, took down part of a fence to clear a path for his wagon, which had become bogged in the mud. A plantation overseer discovered this the following morning, and demanded that the slave submit to a whipping on the spot. The slave refused, and things escalated from there, The plantation’s owner, Jared Kirby (1820-65), showed up with a weapon, whereupon John abandoned his wagon and made a run for it. Kirby and his overseer took off after the man, who was never seen or heard from again, though one witness reported hearing a gunshot. John’s owner successfully sued Kirby and his overseer for the loss of John, but that was a civil lawsuit for monetary damages — not for what was presumably done to John. This case is mentioned in Campbell’s Empire for Slavery.

      Full disclosure: A collateral relative of mine, a Confederate staff officer during the war, later married Jared Kirby’s daughter, Lucille.

  6. Chuck Brown June 15, 2011 / 10:09 am

    There’s nowhere you can “start with this one.” I understood the comical first paragraph. The second is bewildering. I don’t know how you can “read a [piece] of this flag,” let alone a “peace of this flag.” The author must be referring to alternate Civil War history when he writes that African American men “WON THE WAR FOR THE CONFEDERATES.” Yikes.

  7. TF Smith June 15, 2011 / 10:16 am

    Lyle – The “Celia” case in Missouri in the 1850s is very well-documented and provides an excellent case study of what legal protections there were for the enslaved in a border state (as opposed to the Deep South); Melton McLaurin’s “Celia, A Slave” has been around for quite a while.

    In addition to “The Slaves’ War” some good recent monographs include “Closer to Freedom” by Stephanie Camp; “Down by the Riverside” by Charles Joyner; and “Terror in the Hart of Freedom” by Hannah Rosen, which focuses on Reconstruction, but speaks to the war years as well.

    Actually, slavery studies is a very large field, with a lot of excellent work, in recent years; the fact that it has not percolated into the standard civil war narratives focused on battles and leaders is a real issue, but part of what drives the conflict over memory.

    Best,

    • Brooks D. Simpson June 15, 2011 / 10:20 am

      McLaurin’s Celia addresses quite directly the issue of a slave woman’s rights, including protection from rape. It strikes me that it is important to recall that this was a Missouri case: we forget that Dred Scott got some traction for his case because it was originally a Missouri case.

      • TF Smith June 15, 2011 / 12:02 pm

        That is a good point; something that I have had to explain to foreign visitors over the years who are not familiar with American federalism is that we have 51 legal codes (not counting things like the UCMJ). To someone from a country whose legal system is based on (say) the Code Napoleon that is someting of an adjustment.

        States’ rights – to do what? and to whom? – is a question always worth raising around these issues.

        Best,

  8. Margaret Blough June 15, 2011 / 11:24 am

    One of the most comprehensive and readable works on the subject is Thomas D. Morris’s “Southern Slavery and the Law 1619-1860” from UNC Press. 1996. It’s even available on Kindlle. One section is particularly illuminating is about the debate on the rights of third party whites to inflict violence on slaves who were off the plantation where they lived & who failed to show proper deference to whites. The debate didn’t involve IF such rights existed. The debate was on which whites, under what circumstances & the nature & extent of violence that was acceptable.

  9. Mark June 15, 2011 / 11:34 am

    Wow, thought provoking post. Makes a person think…but I think I wouldn’t risk being a slave for a day, regardless of what “rights” they supposedly had. Cool blog:)

  10. Charles Lovejoy June 15, 2011 / 2:44 pm

    I always ask ‘rights’ as compared to what? I also keep in mind, the mid 19th century was a very limited rights world for many. Women’s rights , Children’s rights, Workers rights, Native American rights, ect ect. as we think of them today did not exist . Realistically slaves had less rights than all the other groups of that time period. So what ever rights they were perceived to have had was only a token gesture with no real meaning. Slaves were at the mercy of their owners.

  11. Steve Witmer June 15, 2011 / 7:43 pm

    The “right to lighter work for women, especially during pregnancy” probably had a lot more to do with economics than any tender-heartedness or recognition of real rights. A female of child-bearing years, and especially one that was pregnant, was an investment, and smart businessmen don’t do something that can damage an investment, like overwork the person carrying a tidy little profit in her abdomen.

  12. Bob Huddleston June 15, 2011 / 9:00 pm

    Paul FInkelman has written extensively on slave law; see especially his _Toward a Usable Past: Liberty under State Constitutions_ and _An Imperfect Union: Slavery, Federalism and Comity_.
    Also take a look at Solomon Northrup, _Twelve Years a Slave_. the best is the LSU Press version where the editors tracked down Northrup’s claims. He was born free in NY, but was kidnapped and sold South to a Louisiana Plantation and aAfter 12 years.he was rescued. A chilling account, originally published in 1853.
    Keep in mind that, since a slave –or a free black — could not testify in court, anything done by a white to a black had to be witnessed by a sympathetic white.

  13. Margaret D. Blough June 15, 2011 / 11:19 pm

    Bob-Have you read the Morris book? Really fascinating. Of course, the ultimate is the antebellum legal tome, “An Inquiry Into the Law of Negro Slavery in the United States of America” by Thomas R.R. Cobb (yes, the future Confederate general who died at Fredericksburg & brother of Howell). I’m still slogging my way through Cobb’s “history” of slavery throughout the ages, which in its twists & turns is uncomfortably reminiscent of a book to be written in the 1920s by an Austrian who later ran Germany. T.R.R. Cobb intended this to be the standard legal reference work for slavery from the Southern perspective. This was not to be. The book was published in 1858. Seven years later, slavery (and T.R.R. Cobb himself) was no more.

  14. David Rhoads June 16, 2011 / 5:54 am

    The claim about 25% of slaves being literate strikes me as dubious. Slave codes in most slave states expressly prohibited teaching slaves to read (North Carolina 1830, Alabama 1833, Georgia 1848, etc.) and did not grant exemptions based on the type of work a slave may have been required to perform (foreman, builder, etc.). Moreover how could the literacy rate of slaves possibly be quantified at this remove?

    As to the notion of slaves’ “rights”, the 1857 Dred Scott decision established as Federal Law that any person of African descent, regardless of free or slave status, was not a citizen of the United States under the Constitution and was therefore not possessed of any of the rights established for citizens by that document. The state constitutions of the slave states were no more generous in granting rights to slaves. Certain nominal protections were granted to slaves in the various slave codes, but these existed more to secure the property rights of the slave owners than to secure the well-being of the slaves.

  15. JMRudy June 16, 2011 / 7:29 am

    I think a part of the problem here might be a popular conflation of the nature of slavery in the early century to that in the mid-century. I can see some of the OP’s claims as reminiscent of the nature of slavery in some parts of the upper south before Nat Turner’s rebellion. Virginia recognized it was this very ‘freedom’ that led to Nat organizing his rebellion. That quickly put the kibosh on most marginal ‘freedom’ for slaves. I’d more likely phrase it ‘leniency’, anyways, and not ‘freedom’. Freedom is owning your own life. Leniency is still being at the whim of a master.

  16. Bob Pollock June 16, 2011 / 7:54 am

    There is, of course, Taney’s infamous declaration in Dred Scott: “They 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…”

    Regarding pregnant slaves, in Bruce Levine’s “Half Slave, Half Free,” he decribes the practice of digging a hole in the ground so that a pregnant slave could lay down to be whipped. I don’t have the book in front of me, or I would provide the page number, but that image stuck in my mind.

    I would also recommend Kenneth Stampp’s “The Peculiar Institution.”

    The tone of the comment reminds me of the age old argument that southern slaves were better off than those poor immigrant factory workers in the North; all part of the clash of free labor vs. slave labor ideology. Lincoln said: “We know, Southern men declare that their slaves are better off than hired laborers amongst us. How little they know, whereof they speak! There is no permanent class of hired laborers amongst us … Free labor has the inspiration of hope; pure slavery has no hope.”

  17. Ken Noe June 16, 2011 / 10:26 am

    Twenty years ago, Janet Cornelius estimated that about 10 percent of the slave population was literate. We’ll never know for sure, of course, since so many slaves had to hide literacy. But if there’s a more extensive study of the topic than her book, I’ve missed it.

  18. Thaddeus Romansky June 29, 2011 / 6:16 am

    What the OP calls “rights” had more to do with the accommodation and obligation masters and slaves created within the institution. Whatever autonomous space enslaved people could create for themselves came because owners recognized accepting it made economic and political sense on the plantation. Coercion and violence only went so far in creating a productive economic entity. Slaves’ daily resistance and “silent sabotage” were critical to forcing owners to sometimes choose the carrot, not the lash. Also slaves had much more control of their lives when the sun was set and they were in the quarters. But these are hardly rights as so many have already said. All the points I’ve made all had meaning within the institution because ultimately enslaved people were legally property. These themes are much discussed as many know in classics like Eugene Genovese’s *Roll, Jordan, Roll*, John Blassingame’s *The Slave Community* and George Rawick’s *From Sundown to Sunup.*

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