New Worlds: Slave Rights (and Lack Thereof)

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It may seem incongruous to talk about what rights a person could have when they were being held as chattel. But in keeping with the variation in how slavery has operated in different times and places, there’s likewise range in what a slave’s life was like — including the possibility of certain rights (or lack thereof). Of course, what the law says and how people actually behave are not necessarily the same thing . . .

Let’s start with one basic, horrifying question: if you were a slave, could someone just up and kill you?

In many cases the ugly answer to this question is “no, because that would be an offense against the property of your owner.” The law treats it as equivalent to killing his horse or burning his house down. Your owner, meanwhile, might be free to destroy his own property if he pleases. But it’s also possible for a slave-holding society to recognize a basic right to life for enslaved people — Roman law forbade intentional murder by masters, though good luck proving intent — or, unfortunately, to go the other way. Sparta had a yearly tradition of essentially declaring war on their own state slaves, sending young men out to brutalize, rape, and kill helots so as to keep the rest of their massive subjugated population too frightened to rebel. (Which didn’t even work.)

Death is far from the only punishment a slave can suffer, though, and there are many options for non-lethal brutality, with few options for avoiding it. Enslavement means your master owns your body and can do what he likes with it, whether that be flogging, maiming, rape, or anything else. Roman law decreed that if a man was murdered, any slaves of his under the same roof should be executed — thus discouraging them from standing aside and letting the murderer go to work (much less committing the murder personally). But first they should be interrogated . . . and Roman law also held that slave testimony in any situation had to be extracted by torture, because it was taken for granted that otherwise they would lie.

Counterbalancing this a little bit is the possibility that the law may also allow for redress. If your master’s cruelty exceeded even the cruel norms of slavery as an institution, you might be able to appeal to a higher power, whether that be secular (a local ruler) or sacred (a nearby church or temple). This could prompt an investigation into your master’s behavior, and if it was found to be truly intolerable — bearing in mind what horrors are classed as “tolerable” in the first place — then you might gain some mercy. In most cases, however, mercy would take the form of you being sold to a new, hopefully kinder owner, not being freed or getting any kind of compensation.

Another occasional counterbalance comes in the form of paid work. In monetized societies, slaves might be allowed to work at or even run businesses that earned them money. Mind you, it usually wasn’t much money; the bulk of your income would usually go to your master, with only a pittance staying in your own pocket. Even a pittance, though, meant that you might be able to buy yourself a few luxuries to make life more tolerable . . . or even, with enough scrimping and saving, buy freedom for yourself or for someone you love. But that gets to the question of emancipation and how people could escape slavery, which is a subject for a future essay.

Let’s loop back around to that part where your master owns your body, and what that means for sexual relations. Rape is horrifyingly commonplace in slave-holding societies, certainly for women, and sometimes for men as well. (If male homosexuality is permitted, there’s no reason not to rape the men, and if it’s not, male slaves are a far safer outlet for such illicit desires than freemen. Who will believe them if they tell?) I don’t know what percentage of the African-American population in the U.S. can trace their white ancestry back to a rapist, but it’s a higher number than any of us really want to contemplate. In some cases the relationship may have been borderline consensual; Sally Hemings began having sex with Thomas Jefferson when they lived in France, where she was legally a free, paid servant (as slavery was illegal in France at the time). But given that he’d owned her since infancy and she lost her free status when they returned to the U.S., we can’t ignore the coercive underlayer of that entire relationship.

As for relationships between slaves, of course those were common as well. But does the law recognize slave marriages as valid? The variability here is high, and religion may well come into play. The marriage might be legally binding if it jumps through the right legal hoops (e.g. obtaining a license) or if it’s carried out under the oversight of the right faith (which is often backed by the law anyway), but getting those things might require your master’s permission and support. Marriages conducted according to the traditions of your own people are more likely to be ignored. Which means, in turn, that such a marriage will provide no rights to the parties involved — like the right not to be separated if your master decides to sell one of you.

These questions get even thornier when you consider the children of slaves. Are they born free, or automatically enslaved? The basis of slavery (i.e. war capture, criminal punishment, etc.) may affect the answer to this question, since even a society that considers it reasonable to enslave someone for a crime may balk at visiting the same fate on their innocent progeny. Sometimes it depends on who their parents are, with the easiest route pegging the child’s status to the mother’s — that being far easier to determine than paternity. A slave woman raped by her master thus produces more slaves for his household, while a freewoman who gets pregnant by a male slave gives birth to a free son or daughter. When the children are enslaved, owners can and will sell them elsewhere, or use the threat of sale to keep the parents in line. Any time you read something that talks about how much a slave-owning culture valued family, put a footnote on that which reads, “unless the family was that of a slave.”

And that’s the merciless bottom line running beneath all these notes. Even a slave in a relatively good situation, allowed to raise a family and run their own business, is allowed to do these things. They never have the full rights of a free person, because if they did, they would not be enslaved. The nice things in their life might be revoked by their owner at any time, and even if the law says some of those things are supposed to be protected, odds are low that anyone will care very much. Because in the end, a slave-owning culture does not see its chattel as equal to the free members of society. No amount of dressing the situation up in nicer clothing can hide that fact.

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3 thoughts on “New Worlds: Slave Rights (and Lack Thereof)”

  1. There are so many classifications of enslaved people. In colonial French Louisiana, for instance, the plantation labor force was classified as real property, not chattel property, i.e. French estate law governed slavery as much as all else. The French legal code remained in place, not to be replaced, even now in many areas, by the English Blackstone commentaries and further US revisions and developments after the Purchase.

    This is significant to the study of the US institution of slavery, as cultural and social and geographical comprehension, since unlike elsewhere post the sale of the territory to the young US Republic, the enslaved population could not be alienated from the land* where they were incarcerated, i.e. sold off as separate from the estate’s land. So family ties, as well as direct cultural transmissions, including African tradition, remained relatively intact in a way that one doesn’t see in other slaveocracy states — though there are other, smaller, pockets such as on the Sea Islands, that are significant in these areas as well.

    This legal French heritage seems to have played a large role Louisiana’s smallest out-population of African Americans out of the Cotton Kingdom during the Great Migration of Jim Crow. Even now, generational families, whether Black or White, tend to remain on the ground in the Louisiana where they were born. That changed, was forced to, after Katrina, for the first time. Yet, even now, Black family members tend to remain, rather than go elsewhere, and many of those who built lives elsewhere after Katrina, either do return, or wish to.

    * Leading to the popular but deeply mistaken declaration that the institution of slavery in the southern United States was feudalism by another name. It was not.

    1. Marie Brennan

      Oh, interesting — that does makes it akin to serfdom in some ways, though no, not exactly the same.

  2. The big problem with the children of slaves being free is that — who was on the hook to support them, then?

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