Friday, April 20, 2018

Slavery to Reparations

Emancipation of Slaves in the State of New York

 

Craig A. Landy, "When Men Amongst Us, Shall Cease to Be : Emancipation of Slaves in the State of New York", 12 Judicial Notice 42 (2017).

 

In honor of the 150%^&th anniversary of the Emancipation Proclamation, President Barack Obama called upon all Americans to observe January 1, 2013 with appropriate ceremonies and activities to celebrate the proclamation and the timeless principles it upheld. Over the years, however, celebration of the Emancipation Proclamation has eclipsed another important milestone along the path to freedom:

the final abolition of slavery in New York. The Final Emancipation Act in New York--March 31, 1817, when the New York State legislature voted to end two centuries of slavery within its borders--is well worth recalling on its bicentennial.

craiglandySlavery existed in New York State from colonial times through the founding of the modern state. According to the 1790 U.S. Census, the state had 21,193 slaves, which ranked it first in number of slaves reported from the Northern states. Approximately 14% of New York families owned slaves, only slightly less than in Kentucky. In 1799, a gradual abolition law was passed in New York which decreed that children born after July 4, 1799 to enslaved mothers would be born free, but were required to serve their mothers' masters, without compensation, until they reached the age of twenty-five (if female) or twenty-eight (if male).

After passage of the 1799 law, the number of slaves in the state steadily declined at each census, until 10,088 enslaved persons were reported in 1820. The marked decline over nearly two and one-half decades from the passage of the abolition law was due to several factors. For instance, with the end of slavery in New York on the horizon, many bound to their masters seized the initiative and negotiated with their owners for their liberty before the legally required date. Further, slave importations into New York were illegal and no New Yorkers were born into slavery since July 4, 1799. In addition, some historians have hypothesized that many slaves were smuggled out of the state to the West Indies or Southern states, but quantifying the number of illegal sales has proven challenging. Because the gradual abolition law applied only to those born after 1799, slavery continued for those enslaved born before July 4, 1799. It became clear to African-Americans, slave and free, and their *44 allies, the New York abolitionists, that slavery might continue to exist in New York until the late nineteenth century unless the legislature intervened.

New York's leading antislavery society at the turn of the nineteenth century was the New York Manumission Society, whose founders included Alexander Hamilton and John Jay and whose primary objectives were the manumission of slaves, the protection of freed former slaves and the education of black children of all classes in the African Free Schools in New York City. While antislavery activists saw gradual emancipation as a step in the right direction, only minor changes in state's slave laws were made during the first decade of the 1800's. A final campaign for total abolition was still needed.

In 1811, the Manumission Society petitioned the New York legislature for an end to slavery. Governor Tompkins, a longtime member of the Society, called in his 1812 annual message to that body for the "gradual and ultimate extermination amongst us, of slavery, that reproach of a free people."

Leaders of the African-American community in New York City used the anniversary of the 1808 abolition of the slave trade in America to focus on the remaining struggle to end slavery. In one gathering at the African Methodist Episcopal Church on January 1, 1813, black abolitionist George Lawrence implored the Almighty to destroy slavery, with words equally intended for the legislature, proclaiming:

O! wilt thou crush that power that still holds thousands of our brethren in bondage, and let the sea of thy wisdom wash its very dust from off the face of the earth; let LIBERTY unfurl her banners, FREEDOM and JUSTICE reign triumphant in the world, universally.

*45 Despite these efforts, the legislature was hesitant to adopt total abolition and instead debated greater regulation of slavery in the state and the liberalization of the gradual abolition law. One bill proposed in 1814 would have released from service all those born after May 1, 1814 at twenty-one, instead of twenty-five or twenty-eight. Even that amendment fell victim to opposition in the Senate. The committee that killed the measure observed:

[T]he bill contains principles which are too great an innovation on private rights, and too doubtful on the ground of public policy, to be acted upon without mature deliberation; they are of opinion that this bill has been sent to the Senate too late in the session to be acted upon ...

A close observer of the Senate would have noted that the select committee which authored the report ultimately adopted by the Senate consisted of Senators Lucas Elmendorf, Henry Yates, Jr. and Martin Van Buren, all from slaveholding families.

The reformers were no more successful during the subsequent two legislative sessions. The assembly passed a modified gradual abolition law in 1815 and a revised slave bill in 1816, only to meet stiff resistance in the upper chamber. Upon receiving the assembly's 1816 bill, the Senate ensured inaction by referring it to another unsympathetic select committee led by Senator Elmendorf, where the bill died when the session closed.

In late 1816, the New York antislavery forces made one final push for universal emancipation. During that fall, a group of past presidents of the New-York Manumission Society lobbied the governor and legislature *46 to enact total abolition of slavery in New York State. Their efforts were later recounted before the national convention of abolitionists:

In the course of the last Autumn, several members who, from age and bodily infirmity, had been long excused from the active duties of the [Manumission] society, renewed their attendance, and urged to another effort, for the consummation of a leading object of their thirty years labour in the cause of humanity. Their countenance and wishes strengthened the sentiment already awakened in the society. An appeal to the citizens of the state, on the subject of final emancipation, was resolved on.

Samuel L. Mitchell, one of the past presidents of the Manumission Society, exhorted Governor Tompkins to lead the effort to end slavery in New York as a fitting and "dignified act" for the governor to "close h[is] political career as chief magistrate of this State," before Tompkins' assumption of the office of vice-president of the United States.

By early January 1817, New York City's two Federalist-leaning newspapers published a direct appeal by Cadwallader D. Colden, president of the Manumission Society, urging the public to support "the final abolition of slavery in this state," and calling on the state legislature to "fix a period when men amongst us, shall cease to be slaves."4 In his address, Colden summarized the history of Manumission Society's efforts to abolish slavery in New York and presented the humanitarian grounds for a law freeing all enslaved born before July 4, 1799, using the florid language of the early nineteenth century:

It is for these unfortunates, above the age of seventeen, (and their number is not very large) most of whom have brothers and sisters, or children, or grand-children, that are free; on whom the law now sheds no cheering ray of hope, and to whom time promises nothing in reversion, that we appeal to the philanthropy of the public and the justice of the legislature--of a public, whose various works of beneficence, have thrown into the shade, the charities of all former periods--and of a legislature, intended by that public, to be as well the almoners of its bounty, as the guardian of its right.

* * *

This great work is not impracticable. It is not, as it might be in some sister states, hazardous. It is due to the consequence and self-respect of the state. It is demanded as an atonement for long injustice. Its mode, conditions, and the reputation of its accomplishment, we will cheerfully leave to the legislature; satisfied for ourselves, if the measure shall succeed, with the knowledge, that we have out-lived those hard and unchristian laws, which permitted no beam of hope to light upon the heads of an unfortunate race, except that which issued from beyond the grave.

A delegation from the Manumission Society was appointed to deliver a copy of the address to the state legislature and to lobby for passage of a total abolition bill.6 On January 20, 1817, a copy of Colden's address was formally introduced to the state assembly by Joseph Smith, an assemblyman from New York City and member of the Manumission Society since 1813.7

The Albany Advertiser, the Federalist voice in upstate New York, rallied behind the Manumission Society's legislative initiative, appealing on religious grounds for support of complete abolition:

The attention of the Christian world is so strongly excited on this subject [slavery], that we cannot in this country but be in some measure affected by it. We are a Christian nation, we boast of our freedom - nay, we claim that we alone are free - and, yet, for the miserable consideration of a few years personal service, we suffer a foul blot to remain upon our character, both as Christians, and as freemen.

On January 28, 1817, shortly before his departure to assume the office of vice-president of the United States, Governor Tompkins sent a special message to the legislature, which was read aloud in the assembly, calling on it to determine:

 Whether the dictates of humanity, the reputation of the state, and a just sense of gratitude to the Almighty for the many favors he has conferred on us as a nation, do not demand that the reproach of slavery be expunged from our statute book.

*47 In his message, Tompkins downplayed the economic impact of full emancipation, pointing out that most persons of color born before July 4, 1799 "will have become of very little value to their owners," but total abolition would still be "consistent with the humanity and justice of a free and prosperous people." He recommended setting a date "not more remote than the fourth day of July 1827 on which slavery shall cease within this state."

On the following day, a memorial was submitted by the Religious Society of Friends (known as the Quakers) to the New York legislature seeking a law proclaiming "the extinction of slavery in this state."1 On that same day, the governor's message was delivered to the Senate and both the message and the Friends' memorial were referred to a joint Senate/assembly committee.2 Across the state, newspapers representing a broad political spectrum enthusiastically endorsed the governor's recommendation. The Albany Argus, the upstate voice of the Martin Van Buren faction of the Republican Party, called on the legislature to enact a law for "the entire abolition of slavery in this state," declaring:

Such a measure has long been devoutly desired by the Patriots and philanthropists of our country, and its accomplishment will wipe out one of the greatest stains upon our character as freemen.

The Albany Register, the leading Albany outlet for those in the Republican Party who followed DeWitt Clinton, carried a letter signed by "Humanity," exhorting the legislature to adopt the governor's recommendation:

"The period which his Excellency has set for the total abolition of slavery is so far distant, that it will be no infringement upon private rights to pass the law as recommended."

However, ten days after the governor's address, it appeared that the legislature would allow another year to pass without ending slavery. The joint committee instead presented revisions to the existing slave code which would "accelerate the effect of that wise system of gradual emancipation." The joint committee then submitted a bill calling for a general revision of the state's slave laws to mirror the bills passed by the assembly in prior sessions, which the Senate had successfully avoided.5 The bill comprehensively reaffirmed and consolidated the existing state slave code, by shortening the length of uncompensated service for those affected by the 1799 statute; detailing the protocols for the manumission of slaves; and freeing slaves imported into and exported out of the state, with limited exceptions. However, and as promised by Thomas S. Lester, the assemblyman from Suffolk County (a large slaveholding county) when he introduced the joint committee's bill, it did not fix a date for general emancipation.

The abolitionists were not yet ready to abandon the fight. On March 12h, Assemblyman Joseph Smith introduced an amendment freeing all enslaved persons born before July 4, 1799, as of July 4, 1827. The rider read:

And be it further enacted, That every negro, mulatto or mustee, within this state, born before the fourth day of July, one thousand seven hundred and ninety-nine, shall, from and after the fourth day of July, one thousand eight hundred and twenty-seven, be free; but if such negro, mulatto or mustee, at the time above specified, be above the age of fifty-five years, he or she shall be provided for, as is provided for in and by the seventh section of this act.

The amendment was approved by the assembly by a vote of 62 to 237 and that house approved the amended bill by an even wider margin on March 17h.8 When the senate considered the assembly bill, it added a further amendment relieving former masters of their obligation to support aged slaves emancipated by the legislation and then passed the whole bill by an overwhelming majority.9 The assembly agreed to the Senate's amendment and the total abolition bill became law on March 31, 1817.

The road to freedom in New York was a long and collective effort, to be sure, but by taking that final step and ending legal slavery within its borders, "New York had become the first state to pass a law for the total abolition of slavery."1 On Emancipation Day--July 4, 1827--the number of enslaved men and women born before July 4, 1799 who were freed was as many as 4,680, or 11.5% of the approximately 40,000 persons of color then living in New York State.

In the past few decades, historians have reported perplexingly different estimates of the number of enslaved men and women freed on July 4, 1827 - anywhere from 3,000 to 12,000.3 However, it was widely believed at the time of emancipation among the New York African-American community that the number freed exceeded 10,000. Reverend Nathaniel Paul, the abolitionist pastor of the Albany African Baptist Church, put the number at 10,0884 and Freedom's Journal, the first African-American edited and published a newspaper in the United States, reported 12,000 to 15,000 freed.

Even if the higher estimates of the number freed were somewhat inflated, they served to fuel the joyous public festivities that took place when Emancipation Day finally arrived. On both July 4h and 5h, jubilee celebrations, including parades, public dinners, and religious gatherings, took place in African-American communities throughout New York City and beyond, marking the end of a shameful period in New York's history.

Praise of Tompkins' initiative went so far as to predict that "his memory will be embalmed in the bosom of every human being who ... duly appreciates the equal rights of man for the efficient part he took in behalf of the crushed slave."7 Tompkins was honored by the black community when the Brooklyn African Tompkins Association, a mutual relief society dedicated to public charity founded in 1845, was named for him twenty years after his death.8 While historians have criticized Tompkins' overall record on racial equality and lack of leadership on national slavery issues,9 he has largely been remembered--down to the present--for initiating the total abolition law.

With the passage of the 1817 act, news of the coming end of slavery spread throughout New York. Isabella, an enslaved woman owned by John Dumont in Ulster County, was keenly aware of the law and its path to freedom when, like many, she bartered with Dumont for her early freedom to take effect in 1826 - one year before the emancipation law required. When Dumont reneged, Isabella escaped to freedom with her infant daughter and, after a time, began her antislavery activism under the name Sojourner Truth.

In Griffin v. Potter, the 1817 emancipation law was challenged by a slave owner as unconstitutional on the grounds that it was an uncompensated forfeiture by the state of vested rights. Chief Justice John Savage of the New York State Supreme Court upheld the validity of the act with strong language:

It is contended that the statute assuming to devest a vested right is unauthorized, and void pro tanto. It is a fundamental principle of our government that all men are born free and equal; that is, entitled by nature to equal freedom and equal rights ... The power of the Legislature over this subject is sufficiently ample to justify any act which can come in question in this case. When our government was first instituted, one portion of the population was in bondage to the other. Slavery existed by virtue of the laws which were in force previous to our political existence as a State. It could be justified only by necessity. It was at war with our principles; and ... the Legislature was of opinion that there was no necessity for its continuance

No sooner had slavery been abolished in New York than the political rights of persons of color came under bigoted attack, and a battle raged over the meaning of freedom beyond slavery's end. The New York Constitutional Convention of 1821, called to extend suffrage universally throughout the state, paradoxically extended the vote to all white men regardless of property ownership, while effectively disenfranchising the state's African-American male citizens, including those newly freed, by requiring black men to own $250 freehold property to vote. Factionalized state politics triumphed over the principles of equal rights as Van Buren and his Bucktail Republican colleagues set out to thwart any political advantage their rivals, the Federalists, might reap by universal emancipation among African-Americans who had in the past voted with the Federalist Party.

With the adoption of the $250 freehold voting restriction for African-American men, New York had racialized suffrage standards. Major drives for equal suffrage were undertaken over the ensuing decades by both the black community and abolitionists, but those efforts fell sadly short. The franchise would not be granted to black men in New York until federal intervention with passage of the Fifteenth Amendment of the U.S. Constitution in 1870.

The bicentennial of New York's Final Emancipation Act is well worth remembering as an important chapter in the discourse of slavery and freedom in New York and the long road to be taken in pursuit of a just society. As it turned out, the struggle for equal voting rights in early New York served as a prequel to unjust voter identification laws and other obstacles African-Americans and others continue to suffer in some states. As Faulkner reminded us, "[t]he past is never dead. It's not even past."

The Trans-Atlantic Slave Trade: a Forgotten Crime Against Humanity

 Patricia M. Muhammad

excerpted from: Patricia M. Muhammad, The Trans-Atlantic Slave Trade: a Forgotten Crime Against Humanity as Defined by International Law, 19 American University International Law Review 883-947, 915-947 (2004) (329 Footnotes Omitted)

The Trans-Atlantic Slave trade was a lucrative international institution from which many nation-states benefited economically. As a result of its oppressive nature, it also caused notorious death and destitution. It was not until the twentieth century that the international community began its worldwide effort to define what acts constituted crimes against humanity and seek to prohibit such acts.

Upon reviewing the decisions made in the aforementioned cases, one can trace the evolution of international law. Generally, two sources of international law include a nation-state ratifying an agreement or treaty, and the international community accepting a general practice of law deemed international custom. At times, the cases recognized laws issued primarily for municipal application. While the United Nations has made efforts to achieve uniformity in adjudicating international crimes, the obstacle of applying anti-slavery statutes with homogeny to the international community still remains.

A. International Conventions and Statutes

1. The Slavery Convention of 1926

Generally, the Slavery Convention of 1926 states which acts comprise slavery and slave trading in Africans. Based on the intent of the signatories, the Slavery Convention was premised upon the Brussels Act, which intended to terminate the slave trading of Africans. The Slavery Convention represented the first international convention of its kind to focus on slavery and the African slave trade.

2. The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery

Consequently, the United Nations executed the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, which became effective April 1957. The signatories to this Convention acknowledged that slave trading and slavery failed to be eradicated throughout the international community and thus implemented additional guidelines regarding this inhumane institution.

3. The Rome Treaty Statute of the International Criminal Court

In 1998, the United Nations General Assembly adopted Resolution F, which endorsed the Rome Statute of the International Criminal Court. The Rome Statute entered into force effectively July 1, 2002. Under Article 7, this statute bestows the responsibility of preparing proposals for a provision of aggression, including defining the elements of crimes against humanity.

B. Analysis

1. The Slavery Convention of 1926

The Convention specifically defines slavery as follows:

For the purpose of the present Convention, the following definitions are agreed upon:

(1) Slavery is the status or condition of a person over whom any or all of the powers attaching the right of ownership are exercised.

(2) The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade transport of slaves.

Many of the European governments, along with private merchants, explorers, and African monarchs satisfied the first prong of the definition of slavery by branding the Africans to ensure that others were aware to whom the slaves belonged. Additionally, slave masters and explorers possessing documents purporting ownership of Africans, legally sanctioned by the international community, was another form of one attributing one's right to own Africans, which also satisfied the first condition of slavery as defined by the Convention. These documents included registration documents, contracts, as well as last will and testaments of slave owners, which frequently transferred ownership of slaves to succeeding generations.

The second prong specifies all of the actions constituting the slave trade, beginning with the acquisition and capture of slaves. Thus, the kidnapping or authorization of the kidnapping of slaves from Africa by the Portuguese, European nations and merchants satisfied the element of "capture." Intent represented another aspect required to satisfy the elements of slave trade. This element was fulfilled from the first act of kidnapping or purchase to the resale in the lands across the Atlantic Ocean, it required that those who acquired the Africans do so for the purposes of reducing them to slavery.

Thus, every transaction reducing the African to a slave, destroying his freedom, obliterating family ties, which encompassed the Trans-Atlantic slave trade constituted slavery and slave-trading. These acts perpetrated by slavers included the involuntary capture and transport of Africans, any form of restriction that prevented Africans from freely moving about or living his or her daily life, the fastening of chains and shackles about the Africans' bodies, the shipment of the African captives involuntarily across the Atlantic Ocean, the display for sale on various lands, the branding, the purchase, the lashings from the bullwhip, and dismemberment and lynching of Africans by the slaver to instill fear in the other Africans. Likewise, every contract and treaty signed in the barter of African slaves, issuance of licenses, imposition of taxes and governmental lending of loans to private citizens to continue the exploitation of the slave trade demonstrates the intent of the parties to transport and trade African slaves. These acts definitively satisfy the element of slave traders selling people and fulfilling the definition of slavery and slave trading as defined by the Slavery Convention of 1926.

2. The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery

Sections II and III of the Supplementary Convention on the Abolition of Slavery, the Slave trade and Institutions and Practices Similar to Slavery also addresses the institution of the slave trade and slavery. In defining the slave trade, Section II, Article 3 states:

The act of conveying or attempting to convey slaves from one country to another by whatever means of transport, or of being accessory thereto shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to very severe penalties.

According to documented history, many European merchants and slavers captured and thereafter transported Africans by means of sailing to other countries in the Trans-Atlantic slave trade. Article 3 of the Slavery Convention holds these merchants and slavers criminally liable. The Article further states that one who acts as an accessory is a criminal under this Convention. The criminal intent in this context would most likely be the kidnapping, transport and barter in African slaves, deemed an unlawful offense by the Slavery Convention. Several nation-states purposely aided slave merchants and citizens by granting loans, and funding companies' slaving expeditions, as well as negotiating with African monarchs in order to acquire more Africans. In doing so, these governments supported slavery and all transactions involved in the slave trade, thereby satisfying the intent element. By issuing regulatory licenses, these nation-states not only officially sanctioned acts of the Trans-Atlantic slave trade, but also made great profits from the enterprise.

The Slavery Convention applies both to those directly involved in the acts of capturing, transporting, and selling slaves as well as accomplices to those acts. The crowns of these monarchs and their subordinate governmental entities were not physically present when slave traders captured and transported the slaves. Yet each time a monarch granted loans to laymen and merchants, and contracted agreements with other monarchs to continue the slave trade, they financially contributed to and aided in this crime. Thus, these nation-states are accessories to this crime against humanity and are liable under the Supplemental Slavery Convention. Consequently, the managerial participants--the slavers, overseers, raiders and merchants--along with some members of the international community are also accessories, and are therefore guilty of perpetrating a crime against humanity.

Under Section III, Article 5, the "act of mutilating, branding or otherwise marking a slave or a person of servile status in order to indicate his status, or as a punishment, or for any other reason, or of being accessory thereto, shall be a criminal offence. . ." Throughout the Trans-Atlantic slave trade, participants branded Africans in order to illustrate their ownership of the captives. Thus, all slavers, slave-owners, monarchs and other participants who actually branded or supplied such materials with the knowledge that such materials would be used as tools for branding are criminally liable under Article 5.

Article 6 of the Convention is, to some extent, repetitive, stating:

The act of enslaving another person or of inducing another person o give himself or a person dependent upon him into slavery, or of attempting these acts, or being accessory thereto, or being a party to conspiracy to accomplish any such acts, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to punishment.

Like Article 5, Article 6 emphasizes that all acts causing another human being to be reduced to slavery are criminal offenses, including but not limited to trickery.

One may argue that, similar to evolving case law, the trend in international custom or usage would universally bind nation-states to the Slavery Conventions regardless of whether these entities officially ratified them. However, the Supplemental Slavery Convention only applies to those State Parties who signed or ratified it.

Because it was adopted years after most international slavery's abolishment, it is difficult, but not impossible, to use the Supplemental Slavery Convention as a standard of liability for past acts. To overcome this difficulty, one may argue that the 1926 Convention focuses on present or possible future breaches of its terms. Specifically, under the Convention, the Contracting Parties vow to "prevent and suppress the slave trade" and "to bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms." Further, the Convention is silent as to retroactively penalizing involvement in the slave trade. Thus, it is possible that the International Criminal Tribunal will interpret the silence of the Slavery Convention of 1926 such that past acts could be adjudicated retroactively.

Both the 1926 Slavery Convention and the 1956 Supplemental Slavery Convention state that the "Convention will come into operation for each State on the date of the deposit of its ratification or of its accession." One may validly argue that once a nation-state ratifies the Slavery Convention, it has availed itself to the standards and legal implications outlined in the convention. This argument is reasonable, especially given the likelihood of international opposition to, and the United States' express prohibition of, ex post facto laws. Conversely, it can be argued that the present ratification merely subjects a state to the Slavery Convention's jurisdiction, at which point, a state can then be held for past violations of the Convention.

Another concern is that the status of governments and monarchs during the centuries of the Trans-Atlantic slave trade changed over time. One instance is that Portugal was under Spanish control until it gained independence in 1668. Therefore, to charge Spain as one government regime for the fifteenth and sixteenth centuries would be legally incorrect, although practically simple.

Despite these concerns, the standard put forth by the Slavery Convention is still applicable, because no other international law was in effect to measure what constituted a crime against humanity at that time. Additionally, since the Slavery Convention specifically mentions the Trans-Atlantic slave trade in its purpose for existence, it is an exacting measure that holds the slave trade and subsequent slavery as a crime against humanity.

The Slavery Convention holds the governments who signed and ratified it accountable for the implementation of justice and elimination of the slave trade and slavery. Therefore, the Convention is consistent with the author's argument that the governmental entities should be held liable for their intricate, legal entanglement in the Trans-Atlantic slave trade.

3. The Rome Statute of the International Criminal Court

Article 7 of the Rome Statute categorizes acts that constitute crimes against humanity, several of which are applicable to the acts committed by the perpetrators of the Trans-Atlantic slave trade. Generally, the acts of the slave trade fall under the Rome Statute's definition of a "crime against humanity." The Trans-Atlantic slave trade was a systematic attack against the African population. It flourished into an organized, financial institution, and was encouraged, financed, and otherwise participated in by various nation-states, seeking to enslave Africans.

More specifically, the acts constituting the slave trade directly violate several provisions of the Rome Statute. The African slaves were enslaved primarily by their European counterparts, in violation of Article 7(1)(c). Like the Slavery Convention, the Rome Statute highlights the exercise of ownership rights in the definition of enslavement. The slavers raiding, possession of ownership documents, and branding of captured Africans manifest these participants' exercise of ownership towards Africans. Regardless if the procedure to capture these human beings was ensured by kidnapping or purchase, the result was the enslavement of millions of Africans.

As a result of the kidnapping and sale of Africans from varying ethnic groupings and cultural distinctions, many were forcibly deported to the Western lands in continuance of the Trans-Atlantic slave trade, another act prohibited by the Rome Statute. Further, the African slaves were forcibly imprisoned at forts on the coasts of Africa. Their shackled bodies, forced stowage aboard ships, and sale to other merchants and slave-masters in the Western lands constitutes imprisonment and a severe deprivation of physical liberty.

One may argue that these acts, while in violation of the Rome Statute, were lawful because they did not violate the international law of the time, which had no universal standard. Because many nation-states contracted, participated in, encouraged, and profited from the Trans-Atlantic slave trade, one may even argue that international custom, if not international law, permitted the deportation of millions of Africans at the time. If the Slavery Convention is deemed applicable to the past acts of the Trans-Atlantic slave trade, however, perhaps the definitions and standards of the Rome Statue should serve as guidelines for adjudging those crimes.

Also applicable is the crime against humanity known as torture, defined by the Rome Statute as "the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions." Such routine sufferings endured by African slaves were the lashings of the bullwhip, the burden of heavy chains, shackles and other imprisoning iron devices, branding of flesh, lynching by rope or other material and physical dismemberment or amputation. All of these acts were imposed by those in authority or "ownership" of slaves with the intent to cause severe physical pain and suffering, and as a result of continuous impending harm, great fear amongst the Africans. Rape and other sexual assaults occurred aboard ships during the Trans-Atlantic sojourn, and after arrival and settlement in the West. Other unusual punishments, like setting slaves on fire so they burn to death or physically lashing pregnant slave women, would undoubtedly satisfy the condition of other inhumane acts which caused great suffering or serious injury to one's physical or mental health.

In contrast with the Slavery Conventions, the inherent anomaly of the Rome Statute is that it specifically cannot be applied retroactively, although it provides an excellent standard, thus far, for defining crimes against humanity. Therefore, the Rome Statute of 1998 apparently would not apply to the Trans-Atlantic slave trade, as a crime against humanity, which occurred over several centuries. However, the Statute also states that crimes within the jurisdiction of the International Criminal Court, as defined by the Rome Statute, are not subject to any statute of limitations.

At first glance, this article conflicts with Article 11 of the Rome Statute because the statute is not to be applied retroactively, yet the crimes are not subject to any statute of limitations. The likely interpretation is that since the passage of the Rome Statute as of July 1, 2002, any crimes accruing after this date, yet to be adjudicated, will not be subject to any statute of limitations. This is due to the nature of the statute, in which jurisdiction can only be gained after a nation has ratified and submitted to the Rome Statute. Additionally, most slave merchants, ship captains, laymen and governments of the international community who participated in the Trans-Atlantic slave trade are not physically present for the Rome Statute to be imposed upon them.

However, the Rome Statute, as distinguished from the Slavery Conventions, only applies to natural persons and not to governments. This is yet another difficulty in using the Rome Statute as a measure of the Trans-Atlantic slave trade as a crime against humanity; almost all of these individuals are deceased although many of the governmental entities still exist. These limitations prevent the prosecution of the Trans-Atlantic slave trade under the Rome Statute by the International Criminal Court, but nevertheless do not necessarily limit the possible adjudication of the institution of the slave trade under the Slavery Conventions. Despite the existence of obstacles in officially and universally adjudicating the Trans-Atlantic slave trade as a crime against humanity, the standards of International Criminal Tribunals rectify these hurdles because of their ability to apply retroactively. One example is the United Nations' establishment of International Criminal Tribunal for the Former Yugoslavia. This tribunal was established in 1993 as a response to the crimes against humanity that were perpetrated against citizens in this region during the early 1990's. This tribunal applies retroactively to perpetrators of these crimes, but the tribunal is similar to the Rome Statute because it also only affects natural persons.

Another example of an International Criminal Tribunal is the International Criminal Tribunal for Rwanda, which was established by the Security Council of the United Nations. This tribunal has jurisdiction over certain violations of international humanitarian law committed during 1994. Thus, this tribunal also has retroactive jurisdiction, but is also similar to the Rome Statute and the International Criminal Tribunal for the Former Yugoslavia because it only applies to natural persons.

Based on the legal principles set forth in the International Criminal Tribunals, the Rome Statute, and the Slavery Conventions, the international community may acknowledge the Trans-Atlantic Slave trade as a crime against humanity. More specifically, under the Slavery Conventions the governments and monarchs involved may be held accountable for their involvement in the Trans-Atlantic Slave trade. This legal objective can be realistically achieved by using the previously mentioned International Criminal Tribunals as prototypes for developing an International Criminal Tribunal on the Trans-Atlantic slave trade and slavery.

CONCLUSION

Despite lingering arguments disputing the applicability of these Conventions and Statute as the appropriate mechanisms to decree the Trans-Atlantic slave trade as a crime against humanity, these agreements show that the principles involved are generally recognized under international law as crimes against humanity. The Trans-Atlantic slave trade comprised of a series of transactions in which individuals and governments of the international community benefited from the sale of other humans' lives. The development of this inhumane enterprise evolved over the years to maintain the participants' greed and wealth.

Many individuals entered into contracts allowing slave expeditions and the use of ships to circulate human cargo. Several nation-states rigorously supported the enterprise with financial contributions and legal sanctions through lawfully-binding treaties and other contractual agreements. Millions of African lives were subjected to forced labor, displacement, rape, brutal treatment and general torture by those who purchased and sold them. The Slavery Conventions clearly defines slavery; while the Rome Statute includes general enslavement as a crime against humanity. Further, the Rome Statute delineates additional acts that constitute crimes against humanity that were also implemented during the course of the Trans-Atlantic slave trade. The whole of the slave trade demoted African existence to that of an inanimate object, subjugated to the whims, desires, and control of mostly European individuals and monarchs. Ironically, crimes against humanity intrinsically refer to natural human beings of the earth and imply a significant objection to the maltreatment of human beings by others. Yet, the participants of the trade did not perceive Africans as humans; they were commodities to be kidnapped, used, tortured and executed as deemed by the perpetrators of these crimes.

Therefore it is necessary to hold the international community accountable for this great crime against humanity. It has been said:

SLAVERY: Africans and African Descendants share a common history shaped by the slave trade, slavery, conquest, colonization and apartheid, all of which constitute crimes against humanity, and a common experience of anti-Black racism. We acknowledge that people of African descent live all over the world, although in many instances they have been renamed, suppressed and marginalized. On every continent African and African Descendants continue to suffer from racism . . . We affirm that the Trans-Atlantic Slave Trade and the enslavement of Africans and African Descendants was a crime against humanity and a unique tragedy in the history of humanity, and that its roots and bases were economic, institutional, systemic and transnational in dimension . . .

There are some who have recognized the brutal nature of the Trans-Atlantic slave trade. From its inception, throughout its flourishing years and to its known end, this enterprise has killed and effected millions of Africans' and African descendants' lives. This essay demonstrates that when considering the historical reality of the Trans-Atlantic slave trade and analyzing the international norms for classification of crimes against humanity, the slave trade was definitively a crime against humanity.

The Trans-Atlantic slave trade is one of the greatest horrors in the annals of world history, yet it has never been adjudicated. There has been no compensation to the victims or their progeny, and for the most part there have been no apologies from the participants, nor from their successors who sit in the same seat of governments that sanctioned this institution. The faces of those who suffered because of the economic greed of slave traders are yet to be remembered in such a forgotten crime against humanity. This crime, even in the presence of modern treaties, statutes, and international recognition, has yet to bring those entities to account for their participation in the Trans-Atlantic slave trade.

[a1]. J.D., 2000, University of Baltimore School of Law, B.S.; 1996, Morgan State University.

Fugitive Slave Act of 1793

Fugitive Slave Act of 1793

 

Respecting fugitives from justice,  and persons escaping from the service of their masters. February 12, 1793 The Fugitive Slave Act of 1793 Statutes at Large, Chap. VII, p. 302, February 12, 1793 Chapter VIIC An Act respecting fugitives from justice, and persons escaping from the service of their masters.

Section 1.  Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever the executive authority of any state in the Union, or of either of the territories northwest or south of the river Ohio, shall demand any person as a fugitive from justice, of the executive authority of any such state or territory to which such person shall have fled, and shall moreover produce the copy of an indictment found, or an affidavit made before a magistrate of any state or territory as aforesaid, charging the person so demanded, with having committed treason, felony or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged fled,  it shall be the duty of the executive authority of the state or territory to which such person shall have fled, to cause him or her to be arrested and secured, and notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear:  But if no such agent shall appear within six months from the time of the arrest, the prisoner may be discharged.  And all costs or expenses incurred in the apprehending, securing, and transmitting such fugitive to the state or territory making such demand, shall be paid by such state or territory.

Sec. 2.  And be itfurther enacted, That any agent, appointed as aforesaid, who shall receive the fugitive into his custody, shall be empowered to transport him or her to the state or territory from which he or she shall have fled.  And if any person or persons shall by force set at liberty, or rescue the fugitive from such agent while transporting, as aforesaid, the person or persons so offending shall, on conviction, be fined not exceeding five hundred dollars, and be imprisoned not exceeding one year.

Sec. 3.  And it be also enacted, That when a person held to labour in any of the United States, or in either of the territories on the northwest or south of the river Ohio, under the laws thereof, shall escape into any other of the said states or territory, the person to whom such labour or service may be due, his agent or attorney, is hereby empowered to seize or arrest such fugitive from labour, (b) and to take him or her before any judge of the circuit or district courts of the United States, residing or being within the state, or being any magistrate of a county, city or town corporate, wherein such seizure or arrest shall be made, and upon proof to the satisfaction of such judge or magistrate, either by oral testimony or affidavit taken before and certified by a magistrate of any such state or territory, that the person so seized or arrested, doth, under the laws of the state or territory from which he or she fled, owe service or labour to the person claiming him or her, it shall be the duty of such judge or magistrate to give a certificate thereof to such claimant, his agent or attorney, which shall be sufficient warrant for removing the said fugitive from labour, to the state or territory from which he or she fled. Sec. 4.And it be further enacted, That any person who shall knowingly and willingly obstruct or hinder such claimant, his agent or attorney in so seizing or arresting such fugitive from labour, or shall rescue such fugitive from such claimant, his agent or attorney when so arrested pursuant to the authority herein given or declared; or shall harbor or conceal such person after notice that he or she was a fugitive from labour, as aforesaid, shall for either of the said offences, forfeit and pay the sum of five hundred dollars.  Which penalty may be recovered by and for the benefit of such claimant, by the action of debt, in any court proper to try the same; saving moreover to the person claiming such labour or service, his right of action for or on account of the said injuries or either of them.

 

Approved, February 12, 1793

Fugitive Slave Law - 1850

 

Fugitive Slave Act(1850)


(Approved, September 18, 1850.)


And be it further enacted, That the Circuit Courts of the United States shall from time to time enlarge the number of the commissioners, with a view to afford reasonable facilities to reclaim fugitives from labor, and to the prompt discharge of the duties imposed by this act.

SEC. 4. And be it further enacted, That the commissioners above named shall have concurrent jurisdiction with the judges of the Circuit and District Courts of the United States, in their respective circuits and districts within the several States, and the judges of the Superior Courts of the Territories, severally and collectively, in term-time and vacation; shall grant certificates to such claimants, upon satisfactory proof being made, with authority to take and remove such fugitives from service or labor, under the restrictions herein contained, to the State or Territory from which such persons may have escaped or fled.

SEC. 7.And be it further enacted, That any person who shall knowingly and willingly obstruct, hinder, or prevent such claimant, his agent or attorney, or any person or persons lawfully assisting him, her, or them, from arresting such a fugitive from service or labor, either with or without process as aforesaid, or shall rescue, or attempt to rescue, such fugitive from service or labor, from the custody of such claimant, his or her agent or attorney, or other person or persons lawfully assisting as aforesaid, when so arrested, pursuant to the authority herein given and declared; or shall aid, abet, or assist such person so owing service or labor as aforesaid, directly or indirectly, to escape from such claimant, his agent or attorney, or other person or pergons legally authorized as aforesaid; or shall harbor or conceal such fugitive, so as to prevent the discovery and arrest of such person, after notice or knowledge of the fact that such person was a fugitive from service or labor as aforesaid, shall, for either of said offences, be subject to a fine not exceeding one thousand dollars, and imprisonment not exceeding six months, by indictment and conviction before the District Court of the United States for the district in which such offence may have been committed, or before the proper court of criminal jurisdiction, if committed within any one of the organized Territories of the United States;

...and shall moreover forfeit and pay, by way of civil damages to the party injured by such illegal conduct, the sum of one thousand dollars for each fugitive so lost as aforesaid, to be recovered by action of debt, in any of the District or Territorial Courts aforesaid, within whose jurisdiction the said offence may have been committed.

SEC. 9.And be it further enacted, That, upon affidavit made by the claimant of such fugitive, his agent or attorney, after such certificate has been issued, that he has reason to apprehend that such fugitive will be rescued by force from his or their possession before he can be taken beyond the limits of the State in which the arrest is made, it shall be the duty of the officer making the arrest to retain such fugitive in his custody, and to remove him to the State whence he fled, and there to deliver him to said claimant, his agent, or attorney. And to this end, the officer aforesaid is hereby authorized and required to employ so many persons as he may deem necessary to overcome such force, and to retain them in his service so long as circumstances may require. The said officer and his assistants, while so employed, to receive the same compensation, and to be allowed the same expenses, as are now allowed by law for transportation of criminals, to be certified by the judge of the district within which the arrest is made, and paid out of the treasury of the United States.


Taken from: Barnett Hollander. Slavery in America: Its Legal History. London: Bowes and Bowes, 1962: 39-41. 

Subcategories

Transatlantic Slave Trade
Article Count:
1
Slavery
Article Count:
26
Laws related to Slavery
Article Count:
10
Articles related to Slavery
Article Count:
16
Civil War and Reconstruction
Article Count:
10
13th Amendment
Article Count:
5
Legal Apartheid (Jim Crow)
Article Count:
7
Civil Rights Era
Article Count:
3
Racial reentrenchment
Article Count:
7
Reparations
Article Count:
34

The site is available without logging in. However, if you want to post a comment you must login. Your email address will only be use to provide updates on race, racism and the law.

 patreonblack02