2.7 Slavery and American Law: Slave Codes and Landmark Cases

Slave codes were laws that defined chattel slavery, in which a person is owned as property for life and their children inherit that status. The codes made slavery race-based and restricted enslaved people's movement, gatherings, access to weapons and even what fabrics they could wear. Every enslaving society in the Americas had them, including the French Code Noir and the Spanish Código Negro.

Louisiana's Code Noir (1724) had rules much like South Carolina's, with more emphasis on Catholic instruction. It recognized marriages between enslaved people but banned relationships across racial lines.

By reserving freedom and opportunity for white people and denying them to Black people, these laws hardened the color line, the boundary that separated people by race.

After the Stono Rebellion of 1739 (2.11), South Carolina rewrote its slave code. The 1740 code presumed all Black people, and Native people who had not submitted to the colony, to be enslaved and treated them as nonsubjects with no protections. It barred enslaved people from meeting in groups, drumming, rebelling, running away and leaving the colony, and it fined anyone who taught an enslaved person to write. (A later South Carolina law, in 1834, banned teaching reading too.) An enslaved person who struck back at a white attacker, even in self-defense, could be put to death.

The lesson: slave codes grew stricter as enslaved people resisted.

The Constitution (1787) protected slavery without using the word. Article I, Section 2 counted 'three fifths of all other Persons' for representation, which gave slaveholding states extra seats in Congress. Article IV, Section 2, the fugitive slave clause, required that a person 'held to Service or Labour' who escaped to another state be returned. The delegates chose to avoid the words 'slave' and 'slavery'. 'Slavery' first appears in the Thirteenth Amendment, which abolished it.

Free states also limited Black freedom. Some barred free Black people from moving in. Ohio barred Black testimony against white people in court, and New York put a property requirement on Black voters only. Most Northern states kept Black men from voting. By 1860, Black men could vote on the same terms as white men only in five New England states. After the Civil War, Wisconsin, Iowa and Minnesota opened voting to Black men, and Congress required it in the former Confederate states in 1867, but many Northern states held out until the Fifteenth Amendment (1870) barred racial voting bans everywhere.

Dred Scott, an enslaved man, sued for his freedom because his enslaver had taken him to live in a free state and a free territory. In 1857 the Supreme Court ruled against him. Chief Justice Roger B. Taney wrote that Black people, enslaved or free, were not and could never be US citizens, and that they had been regarded as 'so far inferior, that they had no rights which the white man was bound to respect'. The ruling also said Congress couldn't ban slavery in the territories.

The decision showed how laws and court cases worked together to deny Black people citizenship. The Reconstruction Amendments later overturned it (3.1).