Legalizing Race: State Building at the Intersections of Slavery, Race, and Law in the Long Eighteenth Century

Thursday, April 2, 2020, 11:00 AM - 12:30 PM

Type: Paper Session

Tags: Legal and Constitutional; Race; Slavery


This panel examines the myriad of ways in which state building occurred in tandem with the consolidation and fortification of the institution of slavery in eighteenth century America. Through a close examination of the Constitution, a case study of a Pennsylvanian borderland plantation, and an exploration into segregated judicial structures known as slave courts, our projects interrogate the various tactics used by individuals in power to define the state through the treatment of both enslaved and free black people. Furthermore, we interrogate the extent to which the evolution of legal understanding among Americans cannot be separated from understandings of race and slavery during this period.

This panel, as a whole, analyzes the complex ways in which legal and racial inequalities intermingled with the institution of slavery often at both colonial and state levels. We examine Taney’s decision in Dred Scott, the complex ways space and race intersected under slavery, and the compensation payments paid to owners of executed slaves to trace how law, slavery, and centralized authority interacted in the long eighteenth century to produce the infamous highly racialized and capitalistic institution of the nineteenth-century. Ultimately, the complex relationships between law, slavery, race, and the state reverberated in the national sphere and shaped concepts of equality and inequality in the new republic. Moving away from focusing solely on the usual dichotomy of freedom and enslavement, the panel seeks to understand why race and slavery became increasingly entrenched by the late eighteenth century at the same time that the nascent United States came into being, and the individual states, as well as the nation as a whole, attempted to consolidate state power. Through audience discussion, short paper presentations, as well as discussion led by Professor Christopher Tomlins, our panel collectively questions the role slavery played in centralizing authority, what made a state (or colonial power) in the eighteenth century, and argues for the importance of close reading for understanding the relationships among enslaved peoples, slaveowners, and law-making powers.

Papers Presented

On the Edge of Freedom: A Case Study of Slavery, Space, and Race along the Pennsylvania Border

In 1787, less than a decade after Pennsylvania passed the Act for the Gradual Abolition of Slavery, Alexander Ewing appeared in Lancaster County Court for harboring within the state for longer than six months an unregistered slave named Robert. Although Ewing resided in Little Britain Top, a small town in Lancaster County, he claimed he forced Robert, along with Quash, Wallaw, and the rest of his slaves to live on property he owned in neighboring Maryland. However, this particular piece of land straddled the boundary line between Pennsylvania, now a “free-state” and Maryland, a “slave state.” A close reading of the witness testimonies in this case reveals a distinct relationship between the institution of slavery and notions of state formation in the late eighteenth-century. By using the lawsuit against Ewing as a case study, my paper explores how slavery, race, and space converged along the Pennsylvania-Maryland border, reinforcing increasingly institutionalized understandings of state identity. I investigate the changing ways this particular cast of individuals understood these concepts following the 1780 act; and, consequently, how these perceptions reiterated geopolitical notions of the state in an individual’s daily life. As a result, I argue the complex relationship between race, slavery, and space in relation to the creation of Pennsylvania’s legal identity as a place where freedom is accessible even before the Fugitive Slave Laws of 1793 and 1850.

Presented By
Amanda P. McGee, University of Arkansas

Was Taney Right: Slavery, the Constitution, and the Creation of U.S. Citizenship

During the Constitutional Convention, the drafters of the Constitution created a new status for the inhabitants of the United States of America: citizenship. The deployment of “citizen” to describe membership within the body politic of America was an apparent holdover from the Articles of Confederation, which mentions the status once. While the Constitution mentions citizenship a number of times, it fails to include a definition of the status or who is considered a citizen. To this day, the status lacks an official legal definition. This paper puts forth that while the Constitution does not explicitly define citizenship, it is possible to come to certain conclusions about it. I examine the text of the Constitution, the legal and constitutional history of slavery preceding the convention, and broader cultural understandings about race, slavery, and freedom, to come to a conclusion about what citizenship was. By looking at the intersections of law, politics, and culture, I conclude that it was commonly understood, even if not vocalized, that black Americans would never be considered citizens. In other words, I take seriously Chief Justice Roger Taney’s opinion in Dred Scott v. Sandford where his racists ramblings of black inferiority and the Founding Fathers has largely been written off as illegitimate. Instead, I ask what would the creation of the U.S. state through the Constitution, and the development of citizenship, look like if we take Taney at his word? What if Taney was right?

Presented By
Derek Litvak, University of Maryland, College Park

Compensating Whiteness: Slave Courts in Colonial British North America

Slave courts were separate judicial structures created to regulate free and enslaved Africans in the sixteenth and early seventeenth centuries. They existed in every British colony outside of those in New England. The courts had the absolute jurisdiction to try, convict, and execute and were manned by two to three justices of the peace and a group of elite planters varying in number from three to six. There was never a jury of enslaved Africans and no right of appeal. Once an enslaved person was convicted, court magistrates examined and evaluated her or him, estimating a price against the going rate for an enslaved man in the Atlantic market. Authorities drew the money for compensation from a fund created through taxes and fines paid by poor whites for trading with, sleeping with, or entertaining enslaved persons. Using newly discovered records, my paper examines the functioning of two slave courts, in Pennsylvania and Maryland, during the eighteenth century and the compensation payments paid to owners of executed slaves. I argue these courts became a crucial component of white, elite hegemony by allowing slave owners to utilize state power as a form of discipline and appear self-effacing and judicious while preserving their property claims. My hypothesis is that slave courts became a fundamental component in the constitution of a “Black” race by creating disparities in conviction rates, enslaved-specific punishments, and funneling Africans out of the primary judicial structures within the colonies.

Presented By
Geneva Smith, Princeton University

Session Participants

Chair and Commentator: Christopher L. Tomlins, University of California, Berkeley
Christopher Tomlins joined the Berkeley Law faculty in 2014. Trained as a historian at The Johns Hopkins University, his teaching career began in 1980 at La Trobe University, Melbourne, where he was successively Lecturer, Senior Lecturer, and University Reader in Legal Studies. In 1992 Tomlins joined the research faculty of the American Bar Foundation, Chicago, where he remained until 2009, when he became Chancellor’s Professor of Law at the University of California, Irvine. Tomlins’ primary affiliation at Berkeley Law is to the Jurisprudence and Social Policy (Ph.D.) program, in which he teaches courses on the history and law of slavery, and on legal history. He also teaches in the undergraduate Legal Studies Program.

Tomlins is currently engaged in research on the Nat Turner Slave Rebellion, which occurred in 1831 in Virginia. He is also pursuing research on the history of contemporary legal thought, and on the materialist jurisprudence detectable in the work of the literary critic Walter Benjamin. His books include Freedom Bound: Law, Labor and Civic Identity in Colonizing English America, 1580-1865(2010); Law, Labor and Ideology in the Early American Republic (1993); and The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880-1960 (1985). He is also editor, with Michael Grossberg, of The Cambridge History of Law in America, 3 volumes (2008); with Bruce H. Mann, of The Many Legalities of Early America (2000); with Andrew J. King, of Labor Law in America: Historical and Critical Essays (1992); and with Ian W. Duncanson, of Law and History in Australia (1983). He is sole editor of The Supreme Court of the United States: The Pursuit of Justice (2005). Other publications include some 200 chapters, articles, editorial essays, reviews, and working papers. Tomlins has been the editor of the Law and History Review (1995-2004), and Law and Social Inquiry (2005-09). Currently he is academic editor of two Cambridge University Press book series: Cambridge Historical Studies in American Law and Society, and (with Michael Grossberg) New Histories of American Law.

Tomlins’ scholarly work has been awarded the Surrency prize of the American Society for Legal History, the Littleton-Griswold prize of the American Historical Association, the John Phillip Reid prize of the American Society for Legal History, the James Willard Hurst prize of the Law and Society Association (twice), and the Bancroft Prize of the Trustees of Columbia University. He has been the recipient of fellowships and distinguished visitorships from The Johns Hopkins University; the University of Wisconsin, Madison; the Harry S. Truman Library Institute; The Charles Warren Center for the Study of American History, Harvard University; the Commonwealth Center for the Study of American Culture, and the Institute of Bill of Rights Law, both at the College of William & Mary in Virginia; the University of Sydney; the University of Technology Sydney; Tel Aviv University; The Institute for Advanced Studies, Hebrew University, Jerusalem; the University of Haifa; and the University of London (Queen Mary).

Presenter: Derek Litvak, University of Maryland, College Park
Derek Litvak studies the intersection of constitutional history, race, slavery, and freedom from the late-18th through the mid-19th Century. His research looks at how the status of “citizen” came into being in the United States, and its relationship with free and enslaved black Americans. Litvak’s dissertation looks at several arenas where contestation over the status of black Americans took place, including court rooms, legislative chambers, newspapers, and petitions. Litvak hopes to contribute to a growing volume of black citizenship studies by exiting the realm of local studies and painting a picture of national debates which would define black status, and citizenship, from the late-18th Century to the coming of the Civil War.

Litvak received his B.A. in history from Virginia Tech in 2016, where he mostly studied issues of federalism in the American Revolution. Upon graduating, he immediately jumped into a Ph.D. program at the University of Maryland - College Park.

Presenter: Amanda P. McGee, University of Arkansas
Amanda McGee works on fugitivity, slavery, and race in colonial and revolutionary America. Her current research examines the movements of fugitive enslaved peoples across state borders and the influence of their movements on colonial understandings of state formation, including aspects of social cartography and geopolitical boundaries. Engaging with concepts of gradual emancipation, legal aspects of slavery, race, and spatial theory, McGee investigates the ways in which fugitivity and borderland studies converge prior to the Fugitive Slave Acts of 1793 and 1850. Thereby exploring a distinct relationship between social and racial ideology, slavery, and increasingly institutionalized understandings of state boundaries during the late revolutionary period. As a result, McGee hopes to contribute to historical discussions about how early Americans thought about themselves and border lines in very deliberate and definitive, racialized ways.

McGee received a Bachelor of Arts in History from the University of Central Arkansas in 2012. After which she enrolled in the University of Arkansas in 2015 where she received a Master of Arts in History in June, 2017. Her master’s thesis, “Products of Circumstance: Eighteenth Century Runaway Indentured Servant Advertisements in a Changing Atlantic World,” examined the similarities and differences between runaway indentured servant advertisements published in eighteenth century Britain and colonial America. McGee is currently working towards a doctorate in History from the University of Arkansas as well as a graduate certificate in Africa and African American Studies.

Presenter: Geneva Smith, Princeton University
Geneva Smith works on slavery, race, and the law in the early modern and colonial Atlantic World. Her dissertation examines slave courts, or courts that tried exclusively enslaved persons, in North America and the Caribbean during the seventeenth and eighteenth centuries. She argues these segregated judicial structures were a fundamental component in the formation of a “Black” race, fostering legal understanding among both enslavers and Africans as well as the development of capitalist slavery regimes among the British colonies. In so doing, she emphasizes the way English common law, legal understanding, and legal practice evolved in a racialized manner, re-situating enslaved persons as crucial to the development of legal institutions during the eighteenth century.

Prior to coming to Princeton, Smith received her Bachelor of Arts from Columbia University in 2014 where she double-majored in Anthropology and History. Her undergraduate thesis examined illicit liaisons between white women and black men as well as the freedom suits of their children in colonial Virginia and Maryland. After graduation, Smith worked at the New-York Historical Society where she helped produce curricula for New York State students and teachers. She then moved to the curatorial team, where she helped open the new Center for Women’s History in March 2017, as well as creating her own exhibition on Beauty Culture in 19th and 20th century New York.

Since coming to Princeton, Geneva Smith has worked on the Princeton and Slavery Project, coordinated the Colonial Americas Workshop, and participated in the Max-Planck Institute for European Legal History Summer Academy. In October 2018, Smith was awarded the William Nelson Cromwell Early Career Fellowship. When she is not submerged in the history of colonial North America, she also tries to develop her interests in critical race theory, women’s and gender history, and African American history more broadly.