Perhaps no other racial or ethnic group in history has had its human identity and social history so constructed and determined by legislation, judicial pronouncement, and assessments of criminality and punishment than Africans in America. The early operation of American law was aimed at protecting the human trafficking and enslavement of people of African descent. The United States also broadly criminalized a number of acts that aided African Americans, up to and including educating them. Moreover, the massive legal machinery of the United States worked nearly incessantly from the ratification of the Constitution until the middle of the 20th century, with a brief interruption during and after the Civil War, to curtail African American access to civil society, civil rights, and the protections of the law, while imprisoning and otherwise punishing African Americans who resisted.

The middle- and late-20th-century civil rights movements helped alter the legal environment for African Americans and others but also eventually increased the numbers of African Americans represented within the broader political process, including the law. Although late-20th- and early-21st-century American law and criminal justice can be said to have been tremendously altered from previous periods, scholars, activists, jurists, legislators, and the general public still decry remaining inequities in criminal prosecutions, civil judgments, jury selection, policing, constitutional protections, sentencing and incarceration rates, and state and federal legislation.

 By the time the first African slaves landed in 1619 in the British colonial territory, slavery in the Americas was already well established in Spanish colonies, including Florida. Yet these captives, like many others, black and white, entered into bondage under the established system of indentured servitude. This system contractually bound people in labor to others for a fixed period of time, was not race linked, was governed by British law, and dated in the British system at least back to the 13th century. However, by the 17^th century, wealthy plantation owners desired a more steady and dependable workforce, and chattel slavery emerged in Virginia as an American signature institution. In 1654, John Casor, an African born in Africa, ran away from his master Anthony Johnson (also African) when Johnson failed to release him at the end of his contract indenture. The Northampton County, Virginia, courts ruled against Casor, determining that he had contracted into life slavery. This case marked a historic turn in that it allowed other Christians to be enslaved.

Also, Casor was not considered an English citizen and therefore had no protection under English common law. Other cases were more favorably adjudicated when Africans could prove they were British subjects. After a number of cases like that of Elizabeth Key, who proved her British citizenship through her white father, Virginia introduced the link to slavery through the mother. The 1662 law derived from civil law the doctrine of partus sequitur ventrem, the condition of a child would derive from that of the mother, regardless of mixed race and particularly the race of the father. This legal construct provided the foundation for perpetuating generational and race-linked chattel slavery and empowering white men to engage in the wholesale sexual exploitation of black women for economic and private purposes. In both cases, centuries of literature and scholarship have been devoted to calculating the immensity of the cataclysm. In 1676, Bacon’s Rebellion erupted, and a large number of indentured servants, both black and white, joined the rebellion. One of the causes of the rebellion was the desire of certain colonists to see Native Americans driven out beyond the frontier. When the ruling class in Virginia refused to take a hard line against the Native Americans, a substantial number of frontiersmen, indentured servants, and other aggrieved Virginians revolted. It is reasonable to imagine that the dangers of the

indentured servants and slaves revolting alarmed Virginia’s gentry and prompted tighter control of servant classes. In 1705, Virginia instituted slave codes that further solidified slavery as a race-based institution. These codes indicated that all servants brought to Virginia who were African, mulatto, or Native American were considered slaves or personal property. They could be held in permanent bondage, punished for infractions, and used in commercial trade. Moreover, they could travel away from plantations only with permission and had no legal standing in the courts. These codes became the model for the rest of the developing American slaveholding colonies. By the time of the American Revolution, the slave population was substantial enough to be a military asset, and as rowdy colonists  ecame rebels, the alarmed British offered liberty to any slaves of American revolutionaries who would join royal forces. General George Washington, allegedly after a long visit from African American poet Phillis Wheatley, changed his mind to accept blacks into the Continental army with the promise of freedom for service. At the close of the Revolutionary War, the retreating British resettled tens of thousands of African Americans in their remaining territories. However, American blacks fared much worse. Many blacks were returned to slavery, and with the advent of large-scale cotton production and with substantive legal support, chattel slavery expanded.

The U.S. Constitution emerged with the Three- Fifths Compromise intact, which counted slaves as three-fifths of a person for the purpose of determining legislative apportionment. This created an inflated political influence  f southern states that persisted until the Civil War. The Constitution also established a timetable for ending the lawful importation of slaves. Notably, Article 4, Section 2 of the Constitution separately provided that those held as slaves in one state could not be freed in other states but had to be returned to lawful slaveholders. However, this section of the Constitution did not provide an enforcement mechanism. The Fugitive Slave Act of 1793 gave slaveholders a functioning mechanism for recovering slaves.

The act criminalized assistance to escaped slaves and other fugitives. It also imposed a $500 fine for aiding an escaped slave and authorized agents and attorneys of the slaveholder to seize alleged slaves and petition the courts for removal to the home state. This act gave birth to the bustling industry of slave catching, and manhunters roamed the young nation, seizing fugitive blacks and reportedly dragging many free men and women into slavery. The case of Solomon Northup, an educated New York free man who was enticed to travel with men who drugged him and sold him into slavery in Louisiana, is very instructive. His attempt to sue the men who abducted him is a celebrated New York case. The 19th century saw substantial legal activity affecting African Americans, almost entirely related to the conflict over slavery. Scholarly, legal, and literary works all indicate that the slave system reached maximum development in the 19^th century, as did the mechanisms for legally managing the system. The Fugitive Slave Act was in full force, and on plantations, slaveholders had full authority to punish, imprison, and in most cases kill slaves. In South Carolina, aiding an escaped slave carried the death penalty. The Supreme Court case of Prigg v.

Pennsylvania (1842) affirmed the supremacy of the act over state laws. Prigg had attempted to seize Margaret Morgan, a Maryland slave who had never been emancipated, and ran afoul of 1788 and 1826 Pennsylvania laws that protected escaped slaves and regulated the action of slave catchers. Although Prigg upheld the Fugitive Slave Act, it gave states a loophole through which they could leave enforcement of the act to federal officials. However, such small victories were largely overshadowed by the strengthened Fugitive Slave Act of 1850 and legal decisions like Dred Scott v. Sandford (1857), which rejected African American claims to relief in the courts and affirmed their role as property that could not be seized without due process. African Americans and white abolitionists were forced to resort to direct action to resist slave catchers, resulting in regular attempts to free blacks ensnared by the fugitive slave apparatus. In the 1851 “Jerry Rescue,” William “Jerry” Henry was arrested in Syracuse, New York, under the Fugitive Slave Act. Word of the arrest under the unpopular act spread to the Liberty Party convention, and hundreds of abolitionists converged on the city jail and released Henry. Joshua Glover, a slave from Missouri was similarly sprung from jail, after being arrested in Racine, Wisconsin.

Glover escaped to Canada via the Underground Railroad, which grew in participants and strength with the outrage over the 1850 act. The failed Thomas Sims (1851) and Anthony Burns (1854) and the successful Shadrack Minkins rescue in 1851 were among many celebrated cases that illustrate the divisiveness of the Fugitive Slave Act. The era of controversy produced a hardening of positions in the north and the south. Within the slave system proper, the regulation of slaves reached an unprecedented level of brutality. A notorious North Carolina Supreme Court case, State v. Mann  1830), which held that slaveholders could not be prosecuted for assaults on slaves, illustrated the logic of slavery perfectly: “[T]he power of the master must be absolute to render the submission of the slave perfect.” With a free hand to control slaves as property, punishment was regular and varied and was carried out by slaveholders and their agents. The most celebrated tool of punishment was the whip, but accounts of escaped and freed slaves indicated a variety of methods to control slaves. Heavy cudgels, sticks of wood, switches and whips, iron collars and chains, yokes, suspension by limbs, hanging, tarring and feathering, commitment to stocks, burning, amputation, branding, castration, rape, starvation, separation from children and other family, sale to more brutal owners, and firearms were all reportedly in use. Solomon Northup, Harriet Jacobs, William Wells Brown, Frederick Douglass, and others recorded these methods of punishment, in addition to the sexual exploitation suffered by slave women. Rape was a regular part of slavery, both as a matter of private lusts and as a cynical economic  move. Reproduction via rape increased the property holdings of male slaveholders, even as it produced disruptions in family relationships. Solomon Northup reports being asked to carry out the murder of a slave by a slaveholder’s jealous wife. In addition, a brisk trade in attractive women—mulatto, quadroon, octoroon—bustled in some southern cities like New Orleans, and many women were kept by men of means. Far more women were simply savaged by men, with no legal protections to rely upon. Slave marriages and lines of descent were also largely ignored at law in southern states. Legal status in other areas was limited as well.

Slaves for certain and even free blacks in most cases could not give evidence against white men, and contract protections were nonexistent in most cases in law or practice. In Virginia, Kentucky, Arkansas, and Louisiana, slaves existed as real estate for a time, but they were ultimately recognized as chattel and could be bought, sold, or leased, as well as inherited, used as collateral, or otherwise disposed of as property. They could legally be policed by slave patrols, which enforced pass requirements for blacks in transit anywhere outside the immediate control of a slaveholder. They also hunted and returned fugitive slaves with the protection of the law, and in some cases, laws compelled citizens to assist patrols. The legal fiction of reducing a human to property did conflict with the fact of will and volition and other elements of humanity that could not conveniently be denied. Slaves could not be held responsible for their acts if they did not have free will, yet almost universally, state codes held that slaves could be punished by masters and at law for offenses. In Ford v. Ford (1846), Tennessee Supreme Court justice Nathan Green famously observed while ruling in favor of a slave’s freedom via a will that “a slave is not in the condition of a horse or an ox.” Similar concessions to conditional humanity were usually not so beneficial to slaves. The Georgia slave codes (1848) made insurrection or conspiracy, rape or attempted rape on a free white woman, murder of a free white person or free person of color, and poisoning of a human punishable by death when committed by a slave or a free person of color. Other offenses were punishable by death at the discretion of the court, including striking or maiming a free white person, burglary, and arson. Notably, slaves could be totally excused if the violence against a white person was at the command of a slaveholder or overseer or other person in charge of the slave. In that case, the white owner was held responsible.

Additional complications arose from the general legal principle that slaves could not testify against whites. Evidentiary problems also arose when slave testimony was excluded in total because slaves could not testify as even the witnesses to crimes committed by other slaves, provided that slave defendant actually made it to trial alive. Holding a slave as fit to be sworn also presented a problem because a slave had to be presumed to have the conviction, understanding, and belief in the Christian  od. By the 19th century, slaves could testify for the purposes of convicting other slaves, although evidence rarely came solely from slaves. Alleged free confessions of slaves were always admitted into evidence. Criminal brutality against slaves presented a particularly difficult problem. In the 18th century, some colonies and states prosecuted slaveholders for excess brutality. The 1713–14 case of Frances Wilson, who allegedly beat to death one of her husband’s slaves, caused a stir in Virginia. The long case included a ruling that a slave was at once the property of a master and the king’s subject. The British Crown could bring to trial anyone who destroyed the life of a subject. However, the prevailing mood was that the public was unwilling to deal with killings or heavy abuses of slaves by

white colonists or state citizens. Statutes existed in many states, including South Carolina and Louisiana, that barred punishments such as removing limbs or burning or removing tongues and eyes but left even deadly whipping largely untouched. But in State v. Maner (1834), a South Carolina court ruled that criminal assault and battery could not be committed at law against a slave. Driving many public and political decisions on punishment were fears of rebellion and resistance. Many states made unauthorized gatherings, leaving the plantation without permission, and a variety of infractions seen as insubordination or insolence grounds for punishment. This often included attending religious services or attempting to attain education. In addition, many states made educating slaves a serious offense. The threat of rebellion was not an imagined danger. More than 250 slave revolts of varying success occurred during the period of American slavery. Stono’s Rebellion, Prosser’s Rebellion, and Nat Turner’s Rebellion are some of the more famous. John Brown’s raid on Harper’s Ferry, intended to inspire a slave revolt, stands on its own as a precursor to the Civil War.