Armies sometimes crush liberty, but they cannot conquer ideas.
Jabez L. M. Curry (Lieutenant colonel, CSA, 1861-1865)
From the African continent to the shores of America, the people coercively enslaved were victims of government action, inaction, or a combination of the two. Whether the government is led by a tribal chieftain or a so-called representative government, all governments are political organizations with the power to enforce its will on its subjects/victims, resorting to violence if necessary.
Without the participation/support of governments in the slavery supply chain and its domestication, the spontaneous order[1] within the framework of the principles of 1776 would have eventually resolved the matter throughout these United States. This is not meant to imply that the resolution of the slavery issue would have been pretty, but it would have been resolved.
The claim that it was due to government action that slavery was settled is inaccurate. Consider the 13th Amendment. It states that “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Continue reading and I’ll debunk that myth.
Just as a government has the power to prop up slavery, it has the power to undermine it. This happened in the Northern States. De jure slavery was incrementally repealed, succumbing to persistent arguments regarding its incompatibility with the principles of 1776 and the impracticality of the peculiar institution. If slavery is defined by someone owning the products of an individual’s labor, then an argument could be made that de jure slavery was replaced by a form of de facto slavery, such as being plundered by the government to involuntarily pay one’s taxes. Whether slavery is by law or by fact government is involved in a substantial manner. And when it comes to taxes, government has total control. Being forced to pay taxes is a form of de facto slavery. The argument that taxes are the result of a democratic process based upon the consent of the governed is tantamount to saying that the governed consented to their enslavement. To the extent that government has a “legal” claim to the products of your labor, to the same extent you are a slave.
There is medieval precedence for this form of slavery known as villeinage. During feudal times a villein was an unfree peasant enslaved to his lord. Prior to slavery being codified in the American colonies and States, English law did not recognize black slavery. When a black slave entered England, he became a villain. “One may be a villein in England but not a slave.”[2] Nevertheless, whether a villein in England or a slave in the colonies neither was a free man with total control over his labor and the products produced from that labor.
In 1776 the feudal social arrangements were familiar to the American revolutionaries, e.g., king, nobles, knights, peasants and serfs. When the Declaration of Independence exclaimed that all men are created equal with the inalienable rights of life, liberty, and the pursuit of happiness, it was a rejection of the feudal social arrangement. That rejection included the dispensing with the King’s allodial title to all the land in his kingdom, which means that every parcel of land was ultimately held at the pleasure of the king. The king was sovereign and everyone else was subject to his authority, including the nobility and the parliament.
The king’s claim to allodial property rights rested upon his claim of being the sovereign, the supreme authority over his realm. In America the individual is sovereign, so to speak, because his “Creator” endowed him with the “unalienable rights of life, liberty, and property.” Just as the king claimed a “Divine right to be sovereign” in early America the individual made the same claim, he was free by Divine Right because he was “endowed by his Creator” with those rights.
In his 1792 essay “On Property” James Madison stated what was obvious to his contemporaries, that “man is said to have a right to his property, he may be equally said to have a property in his rights.” In other words, man was made to be free.
In the 1772 Somerset case, Lord Mansfield stated: “The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasions, and time itself from whence it was created, is erased from memory. It is so odious, that nothing can be suffered to support it, but positive law.”[3]
In an 1825 case, Chief Justice Marshall echoed Mansfield’s sentiments in a case involving the slave trade: “In examining claims of this momentous importance — claims in which the sacred rights of liberty and of property come in conflict with each other — this Court must not yield to feelings which might seduce it from the path of duty, and must obey the mandate of the law.”[4] Replace “yield to feelings” with “yield to the “self-evident truths of 1776” reveals the “feelings” the Chief Justice rejected.
To avoid digressing into a detailed analysis of slavery, suffice it to conclude that slavery by law or fact is still slavery. One may be more horrendous than the other, based upon a variety of factors. Nevertheless, if one follows the thread of slavery to its source, one will find the economic interests of masters and government either working for or against those interests. Which side the government takes, i.e., where best to apply its monopoly of force and violence, hinges first and foremost on the interests of government officials. It is important to keep in mind that Lord Mansfield, Chief Justice Marshall, or any judge, Confederate included, are government officials. They perfunctorily adjudicate the legal disputes, including equity courts of justice. It is only when they appeal to higher law, e.g., Divine or Natural law, that they place positive in its proper orbit of human affairs. The self-evident Truths of the Declaration are based upon higher law, not man-made positive law.
Higher law notwithstanding, let’s reconsider slavery under the rubric of positive law. In the 1825 Antelope case Chief Justice Marshall notes that there is a conflict between “the sacred rights of liberty and property”. He failed to acknowledge, or did not understand, Madison’s observation that the right to liberty is a higher law property right. The Chief Justice did free the captured slaves, but only because the pirates did not produce a title proving that they were the “real proprietors”. Had they produced the proof of ownership, the slaves would have stayed in the possession of their oppressors. But the fact is, and the Chief Justice must have known this, if an individual’s property right is allodial, i.e., independent of any superior, any claim to that property by another without the informed consent of the individual is fraud in execution of the property transfer. In other words, it is illegal and null and void. Moreover, a sales receipt, e.g., noting the payment for a slave, is not a title to a slave’s liberty. Possession of a slave, even long-term, and a sales receipt for the purchase of a slave are referred to as colors of title, neither constitutes a valid title. For example, without a valid title there is not solid evidence of ownership in real estate. This is especially true when the claimed property is foundational to human beings. And yes, slaves were considered to be human beings, as evidenced by the fact that in capital felony cases slaves had the same rights as a white man.[5]
Moreover, a so-called slave owner would be unable to obtain title insurance for his right to own the slave unless there was documentation that the slave himself contractually sold his liberty. That contract would be the title. Having an allodial property right to his liberty, only the individual could sell his property right in his liberty. If his liberty was stolen via violence, force, or fraud, the transfer would be illegal. This is particularly true for the children of slaves, who also had allodial property rights to their liberty.
So why didn’t the slaves and/or their advocates legally challenge the theft of their property rights to their liberty in the courts of public opinion or the courts of law prior to 1861? Probably for the same reason that most don’t legally challenge the theft of their property rights by the IRS via the unconstitutional federal income tax. Governments have a monopoly on the use of force and violence and to paraphrase Samuel Adams 1776 comment, we hope that our “chains set lightly upon us”.
I submit that we increasingly hope in vain, because the tragic result of the War (1861-1865) is the loss of decentralized government. With that loss our new masters can see and control us, but we can’t see and control them. As our masters ratchet the chains tighter and tighter, new masters may subsequently lighten them a bit. But the fact of the matter is that we are still wearing chains, the 13th Amendment notwithstanding.
The Yankees ended a form of slavery but the Rebels would have ended the centralization of political power that enslaves us today.
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[1] Friedrich Hayek explained that the “spontaneous order” is when human actions uninhibited by government results in a social order most consistent with freedom and justice.
[2] Smith v. Brown and Cooper (1701).
[3] SOMERSET’S CASE 98 Eng. Rep. 499 (K.B., 1772)
[4] The Antelope, 23 U.S. 66 (1825)
[5] For example, see CATO, A SLAVE, PLAINTIFF IN ERROR, vs. THE STATE, Supreme Court of Florida, 9 Fla. 163; 1860 Fla. This was the rule, not the exception throughout the Confederacy.
Dr. DeRosa’s forthcoming book, The Confederacy: A Guide for the Perplexed, is scheduled to be published this Spring 2024.
“When the Declaration of Independence exclaimed that all men are created equal with the inalienable rights of life, liberty, and the pursuit of happiness, it was a rejection of the feudal social arrangement. That rejection included the dispensing with the King’s allodial title to all the land in his kingdom…..”
Regrettably, that ‘rejection’ was in fact only a transfer of the allodial land title from the king to the new colonial governments, not to the actual resident owners. That is why property deeds even today are fee simple, not allodial and why people who hold the deeds to property they have fully paid for from the prior owner must nevertheless still pay annual ‘rent’ (i.e. tribute) in the form of property taxes to the self-proclaimed sovereign owner of the land, the State. They might not claim to be kings, but the feudal social arrangement remains unchanged.
Regrettably, that ‘rejection’ was in fact only a transfer of the allodial land title from the king to the new colonial governments, not to the actual resident owners.
I believe (my opinion) the corruption came via the 1787 Convention and not through the Declarations of 1776.
Why can we not dissolve this government and institute a new one?
“The natural progress of things is for liberty to yield, and government to gain ground.”
—Thomas Jefferson Letter to Edward Carrington, Paris (27 May 1788)
Because any new one would inevitably begin to transform into another bad one. The lesson needs to be finally learned; rulership is wrong.
How would we do that? Government at all levels holds all the power including to kill people.
Blacks were brought to the malarial zone of the New World because most of the Asians who lived in the New World fell victim to disease…the disease most responsible was malaria…which is still responsible for killing more humans per year than any other insect-vectored disease.
There was no malaria north of the Mason Dixon line…therefore there were plenty of White indentured servants to fleece as poor by the droves from the British Isles were coming for various reasons except committing crimes…the criminals were sent South. West African blacks were suitable as slaves in the malarial zone because of sickle cell…many of them had developed resistance to the disease…ironic…sickle cell being the only reason blacks could out-survive Whites and Asians in the malarial zones of the New World.
Yankees like to pretend they were virtuous…actually, they were much worse, because blacks in the north could not vote despite being less than 2 percent of the population…in the South, blacks were up to 50 percent in some States…and free blacks could not vote, as they could not in the north…but free blacks could move anywhere in the South…whereas they were not allowed to move OUT OF THE SOUTH…by many of these kindly, virtuous, pure White northern States.
A very insightful article, to be sure. Reading it, however, I was wondering about the relation of this issue to the “proposition nation” thesis that we Abbeville types are much set against. It seems that what DeRosa is saying sails very close to that understanding of the republic. I would be interested in anyone’s views on that matter.
I thought the author’s drift was more toward attenuating the individual citizen’s responsibility for slavery, thereby placing the blame on the state, the holder of the monopoly on the use of force. He is asserting that, per Madison’s dictum that men “have a property in their rights”, and since these rights were granted by their Creator, mere positive law could not grant title to another human being, since that person did not sign away his God-given rights. But, as with the income tax, no one was willing to challenge slavery via this avenue, due to fear of government’s, North and South, retribution. I don’t see this as touching the definition of citizenship, propositional or otherwise.
In any case, this was, for me, an entirely new way of looking at slavery, and I would like to read more of Professor De Rosa.