2.7 - Slavery and American Law: Slave Codes and Landmark Cases
How the Constitution Handled Slavery Without Saying the Word
Here's something that surprises a lot of people: the original U.S. Constitution refers to slavery in both Article I and Article IV, but it deliberately avoids using the actual words "slave" or "slavery." Interestingly, the word "slave" did appear in an early draft of the Constitution, but it was removed before the final version. Those words wouldn't actually appear in the Constitution until the Thirteenth Amendment, the amendment that abolished slavery altogether. So the institution was baked into the country's founding legal document from the very beginning, just without being named outright.
Slave Codes: Defining and Enforcing Bondage
Slave codes were the laws that formally defined chattel slavery in America, establishing it as a race-based, inheritable, lifelong condition. These codes went well beyond just defining who could be enslaved, they also placed heavy restrictions on daily life, limiting enslaved people's movement, their ability to gather in groups, their access to weapons, and even what kind of fabric they were allowed to wear. This wasn't unique to the American South either, similar legal frameworks showed up across the enslaving societies of the Americas, including the Code Noir in French colonies and the Código Negro in Spanish colonies.
These laws did more than control individual behavior, they actively hardened the color line (the social and legal division between white and Black people) running through American society. Opportunities for upward mobility and protection from enslavement were reserved specifically for white people because of their race, while Black people were systematically denied those same opportunities on the exact same racial basis.
This kind of restriction wasn't limited to enslaved people either. Free states also passed laws specifically to block free African Americans from advancing. Some free states barred free Black people from even entering the state at all. Others passed narrower restrictions, for example, New York prevented free Black men from voting, while Ohio barred Black people from testifying against white people in court. Even where legal rights technically existed, they were often stripped away in practice. Before the Fifteenth Amendment was ratified in 1870, few states outside New England had actually extended voting rights to Black men (Wisconsin, Iowa, and Minnesota were among them), and by 1860, Black men could vote in just five of the six New England states, Maine, Vermont, Massachusetts, Rhode Island, and New Hampshire.
Slave Codes as a Response to Resistance
Slave codes weren't static, they evolved directly in response to enslaved people fighting back. South Carolina's 1740 slave code is a clear example: it was written specifically in reaction to the Stono Rebellion of 1739, an uprising by enslaved people the year before. The 1740 code went further than earlier laws, classifying all Black people, along with Indigenous communities that refused to submit to colonial authority, as nonsubjects who were presumed to be enslaved by default.
The restrictions in this code were severe and specific. It prohibited enslaved people from gathering together, drumming, learning to write (the law fined anyone who taught an enslaved person to write, part of a long effort to keep enslaved people from literacy), rebelling, running away, or even moving to other colonial territories. Perhaps most chillingly, it condemned to death any enslaved person who tried to defend themselves against an attack from a white person, meaning the law offered no right to self-defense at all.
Dred Scott and the Denial of Citizenship
Legal codes like these worked hand in hand with court rulings to systematically deny African Americans any real citizenship rights or protections. The most infamous example is Dred Scott's freedom suit in 1857. Dred Scott sued for his freedom, but the Supreme Court ruled against him, deciding that African Americans, whether enslaved or free, were not citizens of the United States and could never become citizens. This ruling stood as the law of the land until it was ultimately overturned by the Reconstruction Amendments, the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution.
Dred Scott was an enslaved man whose enslaver, an army surgeon named John Emerson, took him to live for years in Illinois, a free state, and in the Wisconsin Territory, where the Missouri Compromise had banned slavery. Back in Missouri, Scott and his wife, Harriet Scott, sued for their freedom in 1846, arguing that living on free soil had made them free. The case reached the Supreme Court, and in 1857 Chief Justice Roger B. Taney wrote that Black people had been regarded as so inferior that they "had no rights which the white man was bound to respect." The Court ruled 7 to 2 that Scott was not a citizen and so could not even sue in federal court, and it also ruled that Congress had no power to ban slavery in the territories, which struck down the Missouri Compromise. The decision outraged abolitionists and pushed the country closer to civil war.
Required Sources
Articles 1 to 10 from the Louisiana Slave Code (Code Noir, or Black Code), 1724
Louisiana's Code Noir was issued in 1724, when Louisiana was a French colony, and it was based on France's earlier Code Noir of 1685 for its Caribbean colonies. Articles 1 to 10 deal mostly with religion and family. They ordered Jews expelled from the colony, required enslavers to have enslaved people baptized and taught the Catholic faith, banned every other religion, made Sundays and Catholic holy days days of rest, and banned marriage between white and Black people. They allowed enslaved people to marry, but only with their enslavers' consent (and enslavers could not force them to marry), and they declared that a child followed the status of the mother, so a child born to an enslaved mother was enslaved, the same principle as partus sequitur ventrem (see 2.8). Compared with South Carolina's code, the Code Noir shows the same goal of racial and social control, with a heavier emphasis on Catholic instruction and on regulating enslaved people's family life.
Black Code of Louisiana I. Decrees the expulsion of Jews from the colony. II. Makes it imperative on masters to impart religious instruction to their slaves. III. Permits the exercise of the Roman Catholic creed only. Every other mode of worship is prohibited. IV. Negroes placed under the direction or supervision of any other person than a Catholic, are liable to confiscation. V. Sundays and holidays are to be strictly observed. All negroes found at work on these days are to be confiscated.
VI. We forbid our white subjects, of both sexes, to marry with the blacks, under the penalty of being fined and subjected to some other arbitrary punishment. We forbid all curates, priests, or missionaries of our secular or regular clergy, and even our chaplains in our navy to sanction such marriages. We also forbid all our white subjects, and even the manumitted or free-born blacks, to live in a state of concubinage with blacks. Should there be any issue from this kind of intercourse, it is our will that the person so offending, and the master of the slave, should pay each a fine of three hundred livres. Should said issue be the result of the concubinage of the master with his slave, said master shall not only pay the fine, but be deprived of the slave and of the children, who shall be adjudged to the hospital of the locality, and said slaves shall be forever incapable of being set free. But should this illicit intercourse have existed between a free black and his slave, when said free black had no legitimate wife, and should said black marry said slave according to the forms prescribed by the church, said slave shall be thereby set free, and the children shall also become free and legitimate; and in such a case, there shall be no application of the penalties mentioned in the present article.
VII. The ceremonies and forms prescribed by the ordinance of Blois, and by the edict of 1639, for marriages, shall be observed both with regard to free persons and to slaves. But the consent of the father and mother of the slave is not necessary; that of the master shall be the only one required.
VIII. We forbid all curates to proceed to effect marriages between slaves without proof of the consent of their masters; and we also forbid all masters to force their slaves into any marriage against their will.
IX. Children, issued from the marriage of slaves, shall follow the condition of their parents, and shall belong to the master of the wife and not of the husband, if the husband and wife have different masters.
X. If the husband be a slave, and the wife a free woman, it is our will that their children, of whatever sex they may be, shall share the condition of their mother, and be as free as she, notwithstanding the servitude of their father; and if the father be free and the mother a slave, the children shall all be slaves.
King Louis XV of France, Black Code of Louisiana (Code Noir), Articles I to X (1724), English translation from B. F. French, Historical Collections of Louisiana, Part III (1851), pp. 89 to 90. Source: Internet Archive (scan of the 1851 edition), the same translation BlackPast posts
Excerpts from the South Carolina Slave Code, 1740
South Carolina passed this law, known as the Negro Act of 1740, the year after the Stono Rebellion (see 2.11). It presumed that every Black person was enslaved unless they could prove otherwise, let any white person stop and question an enslaved person found off a plantation without written permission, banned enslaved people from gathering, keeping drums or horns, and being taught to write, and set harsh punishments, including death, for rebellion and for striking a white person. Reading its rules directly makes the link between rebellion and legal crackdown easy to see: many of the restrictions target tactics the Stono rebels used, like gathering in groups, signaling with drums, and traveling toward freedom.
I. [...] That all negroes and Indians, (free Indians in amity with this government, and negroes, mulattoes and mustizoes, who are now free, excepted,) [...] and all their issue and offspring, born or to be born, shall be, and they are hereby declared to be, and remain forever hereafter, absolute slaves, and shall follow the condition of the mother [...]
XXXVI. [...] all due care be taken to restrain the wanderings and meetings of negroes and other slaves [...] and their [...] using or keeping of drums, horns, or other loud instruments, which may call together or give sign or notice to one another of their wicked designs and purposes [...]
XLV. [...] every person and persons whatsoever, who shall hereafter teach, or cause any slave or slaves to be taught, to write [...] shall, for every such offence, forfeit the sum of one hundred pounds current money.
South Carolina General Assembly, An Act for the Better Ordering and Governing Negroes and Other Slaves in this Province (1740), sections I, XXXVI, and XLV, printed in The Statutes at Large of South Carolina, vol. 7 (1840), pp. 397, 410, and 413. Source: Internet Archive (University of South Carolina law library copy)
Article I, Section 2 and Article IV, Section 2 of the United States Constitution, 1787
Article I, Section 2 contains the Three-Fifths Clause: when counting a state's population to decide its number of seats in the House of Representatives (and its share of direct taxes), "three fifths of all other Persons" were added to the count of free people. "All other Persons" meant enslaved people, so slaveholding states gained extra power in Congress and in presidential elections based on people who had no political rights at all. Article IV, Section 2 contains the Fugitive Slave Clause: a "Person held to Service or Labour" in one state who escaped to another could not be freed by that state's laws and had to be "delivered up" to the person claiming them. This clause became the basis for the Fugitive Slave Acts of 1793 and 1850 (see 2.20). Neither clause uses the word "slave," which shows how the framers protected slavery in the nation's founding document while avoiding naming it, a choice that lasted until the Thirteenth Amendment.
Article I, Section 2 (third clause) Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. [...]
Article IV, Section 2 (third clause) No Person held to Service or Labour 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 Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
Constitutional Convention, Constitution of the United States, Article I, Section 2, Clause 3 and Article IV, Section 2, Clause 3 (1787). Source: National Archives, "The Constitution of the United States: A Transcription"
Excerpts from Dred Scott's Plea and Chief Justice Roger B. Taney's Opinion in Dred Scott v. Sandford, 1857
Scott's plea is his own request to the courts for freedom. It argued that because his enslaver had taken him to live in places where slavery was illegal, he was legally free. Taney's 1857 opinion for the Supreme Court rejected that claim entirely. Taney argued that when the Constitution was written, Black people were "considered as a subordinate and inferior class of beings" and were not part of "the people" the Constitution meant to include, so no Black person, enslaved or free, could be a U.S. citizen. Reading the two side by side shows how a court ruling worked together with slave codes to deny citizenship to all African Americans, and why it took the Reconstruction Amendments, not just a later court case, to overturn it.
Dred Scott, a man of color, respectfully states to your honor, that he is claimed as a slave by one Irene Emerson [...] That the said Dr. John Emerson [...] took petitioner with him to Rock Island in the State of Illinois [...] believing that under this state of fact, that he is entitled to his freedom he prays your honor to allow him to sue said Irene Emerson in said Court, in order to establish his right to freedom
Dred Scott, Petition to the St. Louis Circuit Court (1846). Source: National Park Service, Gateway Arch National Park, "Dred Scott Petition Transcript" (checked against the Race and Slavery Petitions Project, University of North Carolina at Greensboro)
[...] We think they are not, and that they are not included, and were not intended to be included, under the word 'citizens' in the Constitution [...] On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.
Chief Justice Roger B. Taney, Opinion of the Court, Dred Scott v. Sandford, 60 U.S. 393 (1857). Source: Legal Information Institute, Cornell Law School