Remaking Custom: Law and Identity in the Early American Republic

4. The Question of Slavery in the New Republic

4 The Question of Slavery in the New Republic Zephaniah Swift once boasted that Americans lived in a country where the “constitution of government, the system of law, and the administration of justice” secured “to every member of the community the highest political felicity.” They had created a union of ideal republican polities founded on the principles of liberty and equality for all. Unfortunately, according to Swift, America also owned the distinction of being “the origin and theatre of the most extensive slavery known in any country.”1 As Americans strove to set themselves apart from England by showing off their superior republican governments and laws, slavery was a stigma they could not overcome. In the backs of their minds, and increasingly on the tips of their tongues, the question became, if American government and law represented a tremendous improvement over English government and law, how could they explain their republic’s preservation of such an oppressive institution as slavery? The American Revolution was about freedom and the preservation of natural rights, but it was also about protection of property. Few Americans were willing to take notions of freedom to the extreme of relinquishing property, regardless of whether that property was in things or persons. Some Americans began the Revolution with noble intentions of somehow erasing slavery from their new republic, but they soon realized the cost of such a move. They then turned to rationalizations that enslavement in America was really a better existence for blacks than that which they would have had in Africa.2 Even in the Northern states, typically considered “free” states, slavery existed into the nineteenth century, and even when emancipation came, in many places it was a gradual process that took decades to 114 | Remaking Custom complete.3 As they struggled to rid themselves of this most unrepublican institution, Americans faced growing criticism. One of their critics was Sir William Blackstone, who in his Commentaries unequivocally denounced the institution of slavery as “repugnant to reason” and contrary to “the principles of natural law.”4 Blackstone’s condemnation of slavery stung, particularly because Americans knew that it was not just one Englishman’s sentiments but rather that the opinion spread throughout England and into much of the outside world. Critics singled out the United States as a crucial site of this unjust practice, but slavery represented a state of disgrace that many Americans did not feel they should have to bear alone. They believed that they were merely the heirs of an institution that had existed in many forms and in many places, including the ancient republics and, perhaps, even in England itself. As they dealt with the legal workings of slavery in their lectures and writings , American legists felt compelled to condemn its existence. At the same time they tried to justify its presence in America. Legal scholars were among the first to wrestle with the moral and historical questions about the nature and evolution of American slavery. They used Blackstone’s words to help them accomplish this complicated and often contradictory set of tasks. The Commentaries served as a resource for historical background on the institution of slavery and for the common-law origins and practices of slave law. Just as important, Blackstone’s harsh words against slavery served to frame American legists’ own condemnations of the institution. His criticisms also stood for the outside forces that, at least in the first few decades after the Revolution, unified Northern and Southern Americans in a defense of their most unrepublican institution. I Just as any good lawyer would, American legists began their defense of slavery by searching for valid precedent. As they established their new governments after Independence, Americans looked to the ancient Greek and Roman republics for much of their inspiration, so it now seemed logical to look to these role models again to locate the roots of their form of slavery. To establish their institution’s origins and to assure their students and readers that their immediate ancestors, the European settlers in the Americas, had not invented such an objectionable institution, they drew parallels between American and ancient republican slavery practices. Swift accused Rome and Greece, “so long erroneaously celebrated as the most The Question of Slavery in the New Republic | 115 excellent models of a free government,” of unjustly subjecting the majority of the people under their governance to “the severity of domestic slavery.” He grounded ancient slavery’s...