Race in 19th Century America
By James W. Durney
Article IV Section 2 of the Constitution provides for individuals held to service or labor contracts. “No Person held to Service or Labor in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labor, but shall be delivered up on Claim of the Party to whom such Service or Labor may be due”. The statement protects the property rights of people holding a person bound to their service establishing a national right to that service. As written, this provided for indentured servants, apprentices and slaves, the groups “held to Service or Labor”. These groups were an important part of America’s labor force.
Indentured servitude was a long-term extension of the old English one-year hire for agricultural labor. Terms ranged from one to 17 years, children serving the longest indentures, a typical contract being 4 or 5 years. The difference between indentured servants and slaves, on a day-to-day basis, is hard to define. During that time, the worker’s labor, if not the worker’s person, is a commodity to sell trade or inherit at the discretion of his owner. Pregnancy extends the life of the contract. Upon expiration of service or payment of a specified sum, the contract is complete. This form of labor, popular in New England and the Mid-Atlantic area largely disappearing by the 1790s.
Apprentices contracted to an artisan provide labor in return for training. Parents of boys in their early teens sign these contracts. A term of service varied but until the boy became 21 was common. This form of labor is nationwide and persisted until factories replace skilled craftsmen.
Slaves had no legal length of service for themselves or their children. They represent a distinct class of people with few rights and few prospects of freedom. American slavery is race based. Africans or people of African descent can be slaves everyone else is an indentured servant, apprentice or citizens. Under the “one drop of blood” convention, people who look white are Negro and can be slaves. Slavery while most popular in the South, Mid-Atlantic States and New York, is nationwide.
Persons held to service form a society of Negros, poor whites and young men on the fringe of American life. Runaways are common. The papers are full of notices and the authorities keep busy. How these people are treated is less a matter of law then of good business practice and social pressure. Apprentices, as they acquire skills, generally get the best treatment and they move out of the fringe society into mainstream American life. About this time, America moves toward a society based on race. America divides into Negros and Whites. Negros quickly split along slave and free and again into Blacks and Mulattos. Mulattos, persons of white and black parentage, legally divide on the mother’s race. Those with white mothers have more legal rights than those with black ones. A general rule is the child is slave or free depending on the mother’s status.
New York starts gradual emancipation is 1797. Slaves born after July 1799 served as indentured servants until 25 for males and 28 for females. In 1800, about two-thirds of New York’s Negro population is enslaved. In 1827, it becomes illegal for a New Yorker to sell these indenture contracts to states where the person would remain a slave.
In 1804, New Jersey starts gradual emancipation with females born after July becoming free upon reaching 21 years of age, and males upon reaching 25. New Jersey slave owners have the option to sell slaves to states allowed slave holding until an 1818 law forbids “the exportation of slaves or servants of color.” In 1830, of the 3,568 Northern Negros who remained slaves, more than two-thirds are in New Jersey. The institution is rapidly declining in the 1830s, but not until 1846 is slavery permanently abolished. At the start of the Civil War, New Jersey citizens owned 18 “apprentices for life” (the federal census listed them as “slaves”) — legally slaves by any name.
Pennsylvanian Quakers had doubts about the propriety of owning a person, fearing it as a luxury and would mark them as worldly. An additional fear is Africans could be a bad influence on their families. Mennonites expressed concerns about slavery starting in the 1600s. In 1758, the Philadelphia Yearly Meeting of the Society of Friends makes buying or selling slaves a bar to leadership in Quaker meetings. In spite of the Quaker and Mennonite influence, slaves exist in rural Pennsylvania into the 1840s. A New Jersey law forbids selling slave contracts to Pennsylvania as part of New Jersey’s emancipation.
The Massachusetts Legislature in 1777 tabled a proposal for gradual emancipation. The 1778 draft of the state’s constitution recognized slavery while banning free Negros from voting. This constitution fails at the polls for reasons other than slavery. The 1780 state constitution contained a bill of rights that declares, “All men are born free and equal, and have … the right of enjoying and defending their lives and liberty.” Providing the basis to abolish slavery in Massachusetts, this is clearly not the intent of the Legislature. Popular sentiment and the courts were pro-abolition, however. A 1783 judicial decision, interpreting the wording of the 1780 constitution ends slavery in Massachusetts.
The Connecticut Legislature rejects emancipation bills in 1777, 1779, and 1780. In 1774, they halt the importation of slaves as their increase “is injurious to the poor and inconvenient”. In 1784, a bill for gradual emancipation as part of a general statute codifying race relations passes. The law provides Negro and mulatto children born after March become free at age 25, later reduced to 21. Connecticut abolished slavery entirely in 1848. The 1800 census counted 951 Connecticut slaves; the number diminished thereafter to 25 in 1830, but then inexplicably rose to 54 in the 1840 census.
The massive immigration of the 1840s and 1850s solve the North’s labor problem, gives them a huge population advantage and control of the House of Representatives. A little over 27 million white people lives in America alongside just under 4 million slaves. About 9 million of the white population lives in states that allowed slavery. At best, the South, counting representation for slaves, can only muster about 12 million people while the North can muster 15 million with few problems.
Westward expansion produces more problems than slave states. Most of the nation is content to leave the slave states alone, as long as they do not have to see the realities of slavery. Northern workers view slaves as a cheap alternate source of labor that depresses wages and limit job openings. The majority of Northerners are both free labor and anti-Negro, a combination that creates a series of intellectual gymnastics in the abolitionist’s movement. America is a White Christian nation that is not ready to share the benefits of freedom with everyone.
Catholics, while recognized as Christians, suffer from a suspicion that they owe allegiance to the Pope in Rome not to America. The majority of Catholics are Irish, the main under class in the Northern states. Many of them are recent immigrates, coming during the Irish Potato Famine of 1845 to 1852. They were poor tenant farmers, who lost everything during the famine. Uneducated, hungry and desperately poor they fill the slums of New York, Boston and Philadelphia working as serving girls and day laborers. The Irish vote early, often and Democrat. They are the foundation of the political machines emerging in major Northern cities. Some Irish-Americans have been here since the early 1800s, brought by jobs digging the Erie Canal and building railroads. This group is well established and middle class. However, the majority of the Irish cannot break the cycle of poverty and remain trapped in big city slums. While accepted as “white”, most Americans hate and fear the Irish. Papers portray “Paddy” as a dangerous drunken brute looking to for a chance to steal.
Americans see the Germans as “white” and above the Irish on the social ladder. Often referred to as “The Dutch” or “The Damn Dutch”, their Protestant majority helps gain acceptance. The failed revolution of 1848 stimulated emigration to America. In about next ten years over a million people leave Germany to settle in the United States. Some are the intellectual leaders of the rebellion. Most are common people, who lost confidence in their country. Real economic problems couple with constant political turmoil and fear of worse to come drove Germans to America. Many Germans are educated and bring money with them. They buy businesses, farms or work as professionals. Those with less education and money move into the Old Northwest acquiring public land for farms. However, Germans are figures of fun in the theater and the butt of jokes. Americans see Germans as clannish, slow, cheap and overly fond of beer and music. The German vote is becoming more important especially in the West. In some areas, they are the majority of the population and in many can swing an election. Liberal in outlook and anti-slavery, Germans are an important part of the new Republican Party.
Not even given the bottom rung on the social ladder is the free Negro. These people live in a world with little legal protection often living under laws designed to prevent them from staying in an area. In most states, a free Negro male cannot testify in court against a white person, serve on a jury or vote. Many states prevent them from working in specified occupations, buying property or even staying beyond a specified time.
New Jersey, like other northern states, replaced outright slavery with stricter controls of free Negros. In 1807, a state law limits the franchise to “free, white male” citizens disenfranchising Negro voters.
In 1776, seven out of the 13 Colonies enforced laws against interracial marriage. Abolishing slavery had little impact on the enforcement of these laws. Pennsylvania repealed its law in 1780, together with some of the other restrictions placed on free Negros. Massachusetts waited until 1843, doing so after abolitionists protested against it. All the new slave states and Free states including Illinois, Iowa, Kansas, Main, Michigan and California enact such laws.
Article 13 of Indiana’s 1851 Constitution stated, “No Negro or Mulatto shall come into, or settle in, the State, after the adoption of this Constitution.” The 1848 Constitution of Illinois led to one of the harshest Black Code systems in the nation until after the Civil War. The Illinois Black Code of 1853 extended a complete prohibition against Negro immigration into the state. The codes have an impact, the 1860 Census list free Negros living in Illinois as less than 1% of the population and about 1% of Indiana’s population. The states of Maryland and Pennsylvania have the largest number of free Negros in the North, with about 3% of the population in Maryland and 2% of the population in Pennsylvania. Massachusetts has a free Negro population of 9,000 out of 1,230,000. New York’s free Negro population is 49,000 out of 3,880,000. Many Northern states have almost no free Negro population: Kansas has fewer than 700, Iowa has just over 1,000 and Minnesota has about 200.
The abolitionist’s community is not immune to racism. In fact, they mirror America’s views on race. Being abolitionist will not translate into being ready to accept free Negros into society. John Brown is unique in the abolitionist’s community. He is the only white person that sees Negros as social equals and truly treats them as such, even living in the free black farming community of North Elba in upstate New York.
A major problem for abolitionist is what to do with the freed slaves. Democrats playing on the fears of the Irish and other unskilled white workers hurl accusations that Republicans will establish a mixed race America. Republicans go to great lengths to counter this trying to establish the idea that they do not want to change the existing social order.
An early answer is the America Colonization Society dedicated to the removal of Negros from America. Founded in 1816, the society plans to resettle free Negros in Africa or South America, linking resettlement to abolition. Starting in 1821, thousands of Negros moved to Liberia from America under the Society’s program. Over 20 years, the colony continued to grow and establish economic stability. The Society closely controlled the development of Liberia until its declaration of independence in 1847. Henry Clay is an important member and society president for 16 years. Abraham Lincoln is a proponent of colonization but forced to drop the idea as President. He becomes convinced that the Negro population will not willingly leave America. In the Twentieth Century, Marcus Gravey would lead a back to Africa movement that fails for much the same reasons. In the 1960s, Stokely Carmichael moves to Africa as an example to others.
The Negros refusal to accept relocation coupled with the overt racism of the day causes a complex debate over the division of rights and the allocation of these rights by race. Opposition to slavery came to mean each person has “natural rights” that are not dependent on race. These include the ability to be secure in their person, keep what they earn and basic protection under the law. Lincoln’s “root hog or die”, is an expression of this idea. Negros should not be property as this is a violation of their natural rights. They are entitled to work, keep their wages and protection under the law.
Political Rights are tricky. These rights include the vote, ability to hold public office, serve in the military, testify in court and serve on a jury. Slaves count toward representation in Congress as 3/5 of a person and are the only property that can be charged with a crime or testify in court. Given the racial feelings and status of Negros, this leads to some tricky law.
- A slave or free Negro cannot give evidence under any circumstances against “any Christian white person”.
- A slave is not a competent witness for a free mulatto upon a public prosecution.
- A slave is not a competent witness against a free black person, in a capital case.
- A free Negro is a competent witness against free Negros.
- Lacking other sufficient evidence in a case against any slaves or free Negro, slaves or the same type of persons at the discretion the court can testify unless the sentence could be death.
- It is possible to try a slave for murder and execute them.
- Slaves that set fire to a dwelling, any goods or merchandises shall suffer death as a felon.
- Slave condemned to death, are valued by the court to pay the owner from public money as compensation for the loss of property.
- The Justice of the Peace handles misdemeanors, stealing and other minor offenses by slaves. There is no formal trial and evidence is what the Justice allows. Many states set punishment as whipping and limited the number of lashes to no more than 40.
- A simple assault and battery on a slave is not an indictable offence for a white person.
- The Law indemnifies any officer, or other person, who kills a runaway slave while trying capturing them from any prosecution for such killing. Again, owners get compensation for their loss from public monies. Often the interpretation of this law covers any person killing a “resisting” slave.
Legally those responsible for slaves cannot “deny and not provide sufficient meat, drink, lodging and clothing, or shall unreasonably burden them beyond their strength with labor, or debar them of their necessary rest and sleep, or excessively beat and abuse them”. The laws do not provide for more than a fine even when the person is guilty of multiple offenses. The law is very clear on freeing slaves, owners must show the slave will be self-supporting and is not elderly or disabled.
A Free Negro has almost no political rights anywhere in the nation. With few exceptions, they cannot testify in court against Whites, serve on a jury or hold public office. Barred from most professions, with few exceptions, males cannot vote. Most of the Southern States keep a close watch on Free Negros and have laws designed to control them. The North and West, excludes them from public life to the extent that they often live in their own communities. Northern States with large Negro population are slowly granting political rights. South Carolina jails Free black seamen while their ship is in port. The captain of the ship pays the cost of the confinement. If he fails to pay, the captain is imprisoned and the seaman sold as a slave. The Federal court overturns this law in 1823 but it indicates the feelings of the times.
Along the border between slave and Free states, there is a quasi war. Kidnapping free Negros taking them into a slave state and selling them into slavery is a profitable business. Philadelphia is home for many of these gangs, who work the waterfront looking for seamen. The gangs use drink and women to lure seamen to an isolated location to kidnap them. Posing as businesses needing apprentices, gangs often target children ten to twelve years old. In some cases, they kidnap long-term residents by attacking their farm. In slave states abolitionist aid runaway slaves and may encourage them to runaway. Slave catchers operating in Free states face harassment, charges of kidnapping and murder.
Almost no one contends that Negros have social rights. Social rights would mean that the races are equal socially and eligible to marry. Keep in mind that the Irish do not have full social rights and many question if the Germans should have them. The Democrats charge Republicans with planning to give social rights to Negros. A charge the Republicans are at pains to deny and work to prove the Democrats wrong. This is a potent political weapon for the Democrats. They make effective use of it with poor whites in eastern cities and in areas with a large population of people from Slave states.
Negros are the most visible non-white group but not the only one. Indians make up a small portion of the general population. America considers Indians to be what we now call “Resident Aliens”. They are citizens of their tribe not of the United States. The majority of Indians in the East have been “resettled” west of the Mississippi River making them invisible to civilized Americans. Florida, Texas and Minnesota are the only states with a sizable Indian population and a current history of Indian wars. Texas is fighting a constant war with the Comanche and Kiowa in the western part of the state. Florida fought three Indian wars from 1814 to 1858. After the third war, the native population was scattered and hiding in remote areas. In 1862, the Sioux in Minnesota attack white settlements adjacent to their reservation. This war lasts about six weeks and results in over 300 Sioux sentenced to death for murder and rape. Lincoln’s intervention limits executions to less than 50 and he loses the state in the 1864 election. Most of the Sioux flee to the Dakotas or to Canada.
In 1860, the majority of White America agreed on a number of points:
- The Federal Government has no power to outlaw slavery.
- States where slavery exists have to become a free state by their own actions.
- Slavery is something Negroes accept and they might be better as slaves.
The disagreement is over the spread of slavery into the West. Most Northerners want slavery restricted to the states where it exists. Laws in the northern states regulate bringing slaves into the state, how long a slave can remain in the state and what happens if these laws are broken. Capturing and returning runaway slaves causes riots in the Northern states. Southerners traveling in the North with their slaves creates social problems and can cause legal problems. If they cannot bring their slaves along Southerners feel they are denied entry into the West. They fear a Federal Government, dominated by Free States will make slavery illegal. Neither side can comprise nor will change their mindset.
By 1870, slavery was illegal nationwide, Negros have natural rights and the men have political rights.
Very few questions that the Irish are “white”.
The Germans have gained social acceptance and power in the Republican Party.
The 13th Amendment gives Negros their natural rights. The 14th Amendment, 1870, gives Negro males political rights.
This is not an easy process nor is it a quick one. Initially, Lincoln’s Administration insisted the war was to preserve the Union of States not to end slavery. The “War Democrats” and the public support this stance. During the first 16 months, it becomes clear that this position is impossible to maintain and could prolong the war. Lincoln’s Emancipation Proclamation, while not ending slavery, extends natural rights to slaves in most of the slave states.
1862 saw a decrease in northern white males willing to enlist. Many states are still trying to meet the 1861 quotas in 1862. To meet their quota, Massachusetts enrolls two regiments, 54th & 55th, of black males. Since the 1860 census counted less than 10,000 Negros in the state, these men come from every northern state. Massachusetts’ action presented the government with a real problem. If they refuse the regiments, the states will fill quotas with Negro regiments whenever they cannot find enough white males. The government cannot know how the courts or the public will react to this action. Would it shame white males into enlisting or would it keep them from enlisting? Without a great deal of enthusiasm, they accept the regiments and create the United States Colored Troops. While the two Massachusetts’ regiments keep their numerical and state designation, other regiment will have USCT in place of the state’s name. Over the course of the war, 178,000 to 200,000 thousand Negro males served in the North’s Army. These men slave or free, come from all states.
A Negro’s status is an open question at the end of the war. In Maryland, Delaware, Kentucky and Missouri slavery is legal and active. In the areas of Tennessee controlled by the Federals on January 1, 1863, slavery is legal. Andrew Johnson secured that concession from Lincoln in an attempt to build loyalty to Washington. This means it is possible slavery is legal in all areas of the former Confederacy under control by the Federal Government when the Emancipation Proclamation went in effect. Tennessee is the precedent and it will be up to the courts to decide this question. During the war, the army would not return or help owner’s recover runaway slaves. Slaves can enlist with their owner’s permission receiving emancipation when the war ends. The government will not allow veterans or their families to be enslaved. The legal definition of “family” will be decided by the courts.
Political rights for Negroes are a hotly debated topic in the closing days of Lincoln’s administration. They agree immediately granting political rights to all male Negros is unwise. Negro males that served in the USCT will receive political rights, in recognition of their service. Generally, the extension of political rights will occur over time as the Freemen became ready for these responsibilities. States will be able to elect representatives when 10% of the 1860 voters take a Loyalty Oath.
A number of incidents upset this plan. First and foremost, Lincoln’s death leaves a power vacuum in Washington. While Andrew Johnson holds the title, he lacks the power of the Presidency. Second, Lincoln had not worked with Congress on Reconstruction. He had created no master plan that was acceptable to all factions within his party. The first post war Southern Congressional Delegation contains many important ex-confederate officials. Alexander M. Stephens, Vice President of the Confederate States of America, is a Senator. Many delegations contain members who were officials in the Confederate Government, Officers in the Confederate armies or ardent secessionists. The Northern public sees this as a second rebellion. Republican’s, with huge majorities in Washington, take steps to keep these elected officials from taking their seats. Fear, wanting to retain power coupled with a goodly amount of hate work together to disenfranchise the majority of White voters in the South. A Republican coalition of Freemen, residents from the North and white Loyalist come to power in the southern states. These governments draw support from the Army and the Freedman’s Bureau. The Radical Republicans build a compliant Southern Congressional delegation committed to and supporting their agenda. This is the heart of Reconstruction. The disenfranchised white southerners counterattacked using a combination of political action, intimidation and violence. In state after state, they regained political power ending all Reconstruction Governments by 1877.
We tend to say the reason Reconstruction fails is white southern resistance.
However, the North has many reasons for withdrawing support from the Reconstruction Governments in the South. They no longer wish to support and maintain the standing army necessary for to maintain Reconstruction. As fears of a second rebellion and war fad, the urgency of supporting Reconstruction fads. While southerners feel they have no option but to fight on to victory, the majority of Northerners can lose without any real pain or injury. Reconstruction is a top down process imposed by Washington; Reconciliation is a bottom up process among whites. Reconciliation is more important and trumps Reconstruction. The unspoken reason Reconstruction fails is the North’s attitudes toward Negros did not change all that much during and after the war.