Juvenile Instructor » Responses: Rich Answers Ricks on Utah Servitude/Slavery
 


Responses: Rich Answers Ricks on Utah Servitude/Slavery

By: Guest - June 01, 2012

Christopher Rich’s response to Nate Ricks’ review of “The True Policy for Utah: Servitude; Slavery; and ‘An Act in Relation to Service,'” Utah Historical Quarterly, vol. 80, no. 1 (Winter 2012): 54-74.

I was very happy to learn of this forum for discussing LDS History, and jumped at Nate’s invitation to have lunch and discuss the history of servitude in Utah. I found his master’s thesis to be invaluable when I first began to research this area, and thoroughly enjoyed speaking with him about this nuanced and highly interesting topic.

At this point, I should make a confession. I love history. I love LDS history. For this reason I studied history as an undergraduate and have continued to do so ever since. But for better or for worse, I have been professionally trained as an attorney. And as an attorney, I have been taught a simple rule: when interpreting a law, one must first look to the statute. If a court is interpreting a law, the court will always look first to the plain meaning of the text. Thus, when interpreting a statute, what a legislature subjectively meant to say, or what private individuals later perceive the legislature to have meant, is far less important than the actual words that the legislature put to paper. When I originally became interested in Utah’s history of servitude, I read many interesting treatises by a variety of talented historians. Yet I was shocked to see that not one of these had really wrestled with the text of “An Act in Relation to Service.” Nevertheless, each of these historians had come to a legal conclusion: that the act created a system of chattel slavery in Utah.

With Nate, I agree that this was a highly complex law and the Saints created it for a variety of complex reasons. Some of these had to do with theology, some with the Jacksonian worldview with which most early LDS leaders had been raised, and some with the pressures of contemporary American politics. I must also admit that many of the statute’s most important sections are not as clearly written as one would hope. For this reason, I spent hours parsing each word and clause, then going back and reading the law as a whole. I then expanded to the marginal notes included with the published text, other contemporary statutes and court decisions, the statements of interested parties such as Brigham Young and Orson Hyde, and many excellent secondary sources of both law and history. When it was over, I determined that while the law certainly created a system of involuntary servitude and gradual emancipation for previously bonded African-Americans, it did not create a system of chattel slavery, nor did the Utah Legislature intend it to do so.

People are certainly free to disagree with my conclusions. Nevertheless, I believe that valid criticism of my position must be grounded in the text of the statute. Now, as I have stated, this text is at times unclear. Furthermore, no contemporary court ever interpreted the law, save for the incomplete probate court decision in the case of Dan which I mention in my article. Thus, I believe that it is legitimate to look to contemporary statements about the law (in addition to court decisions and statutes from other states and territories) in order to fully understand it and its impact. Nevertheless, one must be careful to not let subjective impressions of the law by private individuals override the text of the statute. That is to say, when interpreting “An Act in Relation to Service,” (and thereby determining if slavery was legal in Utah) one must start with an objective reading of the text and then move outward rather than the other way around. Certainly, variance between the text and people’s later interpretation of the statute can provide valuable insights into servitude in Utah. Indeed, I think that any such variance is an incredibly important topic of study if we are to understand the entire picture of African servitude in the Territory. Still, it must be remembered that what people perceived about the law and what the law actually said are in fact two different issues, and it is the text of the law which is paramount.

Nate has brought up many interesting points in his review of my article. I appreciate his suggestion that I look to the Territorial library to find possible sources for the law. I readily acknowledge that that the connection I have created between “An Act in Relation to Service” and other contemporary Northern laws is circumstantial rather than direct. While a review of books in the Territorial library would only create more circumstantial evidence, the more evidence the merrier.

Nate has also brought up a number of questions about how the law was perceived and implemented. These can be placed in three categories; 1. What legislators meant the law to accomplish, 2. How the law was actually put into practice, and 3. How individuals perceived the law afterwards. For instance, it is indisputable that many individuals in Utah continued to refer to African servants as slaves, including the servants themselves! I must confess that this fact has troubled me, although I did not have the space to fully address it in my article. However, I do not believe that it is impossible to harmonize these statements with the text and purpose of the law as I have interpreted it.

As I stated above, if one is trying to determine the legality of chattel slavery in Utah, the text of the law must take precedence. Of course, from a historian’s standpoint, the subjective intent of the legislators is also a vital question, and is to a certain extent entwined with an objective interpretation of the law considering its sometimes vague wording. For this reason I tried to explore both issues in conjunction in my article. Nevertheless, there is certainly more to learn although documents about the drafting of the law have so far proved elusive. I also highly encourage further research into each of the above categories in order to give a broader picture of African servitude in the Great Basin. At this point, rather than definitively answer the questions posed by Nate, I would like to list several considerations which I believe are important for anyone attempting to investigate these questions and harmonize them with the text of “An Act in Relation to Service.”

1. In the law, words have objective meaning while everyday language is often subjective. In my article, I have given the term “slave” a distinct legal definition as it was understood at the time: an individual who is owned as a piece of personal property or a chattel, and whose status is hereditary. This does not mean that everyday people used this term in such a precise manner. Indeed, the difference between a “slave” and an “involuntary servant,” although real, was highly nuanced, and was perhaps not readily apparent to the average person. For example, as I point out in the article, Brigham Young was confused about the legal status of African servants in New York, and some Mormons may have been similarly confused about the status of African servants in Utah. Further, “involuntary servitude” was certainly “slave-like” when compared to the freedom enjoyed by the average citizen. Indeed, any form of employment outside of “free labor” (such as indentured servitude) may appear “slave-like” even though it is not actually slavery as previously defined. Even today, people will often refer to a particularly onerous employment situation as slavery when they actually mean that it is “slave-like.” Thus, the Saints, many of whom detested slavery anyway, may have continued to refer to African servants as slaves in order to make a point. Or, they may have continued to use a short and familiar term in order to describe a similar though legally distinct status.

2. The expansion of African slavery in the Territories was THE main source of national conflict from the end of the Mexican War through the 1850s and resulted in the Civil War. Beginning with the Compromise of 1850, the Territories had enjoyed the ability to make decisions in regard to slavery for themselves thanks to the Popular Sovereignty ideology of Lewis Cass and Stephen Douglas. Yet this did not end the struggle and in some ways intensified it.

As I argue in my article, the Mormons were keenly aware of this ongoing rift between the North and South and understood that taking a firm position in regard to slavery either way could materially affect their drive for statehood. “An Act in Relation to Service” created a system that tried to bridge the gap. In it, African Americans slaves did not continue as legal chattels, but neither were they immediately freed. At the same time, people in Utah (particularly those in leadership positions) had an incentive to keep the status of bonded African-Americans somewhat obscure in order to play upon biases back East and gain support for statehood from both sides. Consequently, it is entirely possible that the language used to describe African servants in the aftermath of the law’s passage was part of a deliberate political calculation. However, in 1857, the situation became even more complex.

Early that year, the Supreme Court handed down the infamous Dread Scott decision. Among other things, the decision ostensibly forced all U.S. Territories to legally recognize the institution of slavery within their borders. Two years later, this was compounded by attempts by Congress to create a federal slave code. It is currently unknown how the Saints reacted to these seismic shifts in national policy. For instance, in New Mexico Territory, the legislature created an explicit slave code in 1859 despite the fact that there were fewer than 20 African slaves in the Territory. It seems likely that this was meant to avoid greater oversight from  Congress in the form of a national slave code. In contrast, the Utah Legislature made no changes to “An Act in Relation to Service.”

But that same year in a famous exchange, the newspaperman Horace Greeley asked Brigham Young if there were slaves in Utah, and Young replied that there were. Greeley then asked an interesting question. He asked Young if the laws of the Territory recognized the institution of slavery. This may have been in recognition of the fact that there were small numbers of African slaves in many places where slavery was illegal, such as Oregon Territory. To this, Young cryptically replied “Those laws are printed – you can read them for yourself. If slaves are brought here by their owners in the states, we do not favor their escape from the service of their owners.” But when asked if Utah would be a slave state or a free state, Young clearly stated that Utah would be a free state when admitted to the Union.1

I do not have time in this response to fully explore these statements. In fact, I am considering writing an article on the subject. Yet certainly this interview reveals the knife edge upon which Young and the Latter-day Saints walked in regard to slavery, particularly after Dred Scott and the evisceration of Popular Sovereignty. It is possible that this exchange reveals a fundamental change in Utah’s policy towards slavery in the wake of Dread Scott. But considering the skill with which Young dodged the question of slavery’s legality, it may not. Indeed, Young’s statement that the Mormons did not favor the escape of slaves could refer to a system of involuntary servitude as well as slavery, or may just have been a way of saying that Utah would comply with the Fugitive Slave Law. In either case, considering the enormous change in both local and national circumstances from 1852 until 1859, it should not be used to interpret “An Act in Relation to Service” as originally written. All uses of the word “slave” after 1852 to describe servitude in Utah should likewise be subjected to such contextual scrutiny.

3. People do not always follow the law the way that it has been written. Nevertheless, this does not change the content of the law nor its meaning. It simply means that people do not observe the law. It is therefore entirely possible that individuals continued to keep African slaves in a state of slavery once they reached Utah despite the requirements of the law. This would not be at all unusual and occurred in many other places throughout the United States.

4. Each legislator has his own reasons for supporting a piece of legislation, and even in Territorial Utah under the leadership of Brigham Young, there was such a thing as compromise.

Again, I appreciate this opportunity and forum for discussion.

Christopher Rich

________

1 Horace Greeley, An Overland Journey, from New York to San Francisco, in the Summer of 1859, 1860, pp. 211-12.



21 Comments

  1. Excellent. Thanks for participating here, Christopher, and for taking the time to respond to Nate. Your initial article and the subsequent conversation between you two is really helpful in making sense of this.

    Comment by Christopher — June 1, 2012 @ 8:20 am

  2. Still, it must be remembered that what people perceived about the law and what the law actually said are in fact two different issues, and it is the text of the law which is paramount.

    I think that this along with some of your other discussion about legal terms is very helpful in better understanding what you are doing with your article.

    Comment by J. Stapley — June 1, 2012 @ 8:38 am

  3. A wonderful and informative exchange. Thanks, all.

    Comment by Ben P — June 1, 2012 @ 9:42 am

  4. Brigham Young is pretty blunt about what he thought about slavery. He thought is was ordained of God, but not economically feasible. Here’s the Brigham Young – Horace Greely passage from just before the one quoted:

    H.G. — What is the position of your Church with respect to Slavery?

    B.Y. — We consider it of Divine institution, and not to be abolished until the curse pronounced on Ham shall have been removed from his descendants.

    Brigham Young then says that Utah would be a free state because slavery would be “useless and unprofitable.”.

    Comment by small star — June 1, 2012 @ 11:13 am

  5. I am loving the “Response” series, and found this one in particular to be very helpful. Thanks for such an honest and open interchange of ideas.

    I am wondering about the statement that the Dred Scott decision eviscerated popular sovereignty. It would seem that it actually upheld the rights of the individual states to regulate slavery, and eliminated federal involvement in the practice. So a question comes to mind. Could the Utah territorial legislature have actually passed a law banning slavery outright after 1857?

    Comment by kevinf — June 1, 2012 @ 12:58 pm

  6. small star, taken as a whole, I don’t think BY can be read as clear cut as that. He is also documented stating that slavery is a negative.

    Comment by J. Stapley — June 1, 2012 @ 1:19 pm

  7. small star,
    I agree with J. Stapley that Brigham Young’s feelings on slavery are not so clear cut. For instance, at the time that “An Act in Relation to Service” was passed in 1852, Young clearly stated that to make a human being into a piece of property was “not consistent or compatible with the true principles of government.” Young’s statements always require an examination of the context in which they were given, and it should not be forgotten that his statements (particularly to a man like Greeley) were often politically motivated. However, it seems likely that although Young approved of keeping African-Americans in some kind of servitude, he did not approve of chattel slavery, particularly as it was practiced in the American South.

    Comment by Christopher Rich — June 1, 2012 @ 3:48 pm

  8. kevinf,
    The Dred Scott decision produced a mass of confusion. For years afterwards, Stephen Douglas, perhaps the greatest proponent of Popular Sovereignty, tried to argue that the principle remained intact despite the decision. However, Chief Justice Taney basically stated that Congress did not have the power to ban slavery in a Territory, and therefore it could not give such power to a Territorial government. This seemed to be a blow to the very foundation of Popular Sovereignty. It is important to remember that U.S. Territories were essentially treated as colonies and were under the dominion of the federal government in a way that contemporary states were not. So, in answer to your question, I would say that Utah could not have banned slavery after 1857, and any previous ban would have been void. However, there was much disagreement at the time and there may be counter-arguments even today.

    Comment by Christopher Rich — June 1, 2012 @ 4:01 pm

  9. Thanks, Christopher. I always knew that there were huge restrictions on the power of territorial governments, but wasn’t clear about the implications for slavery imposed by the Scott decision.

    I have also heard it implied that popular sovereignty was also used as justification by some to not interfere in mob actions against the church in Missouri and Illinois, the implication being that if the people were in the majority opposed to the church or other groups, what right did the government have to interfere?

    I often feel the best thing about Jacksonian America in the antebellum era is that it ended. Paradoxical times in the American Republic, for sure.

    Comment by kevinf — June 1, 2012 @ 4:12 pm

  10. kevinf,
    That is exactly right. I have a great interest in popular sovereignty and am currently writing an article about how this theory affected the Saints in Utah. Popular sovereignty is of course the basis of republican government as it holds that the people are sovereign and not some king. However, during the Jacksonian period and really until the 20th century, “the people” meant the majority, and minority groups had little power to withstand the majority. It is also important to realize how much power the federal government has amassed since the mid-19th century. In the Jacksonian period, the federal government would have had almost no power to interfere in state government. However, the territories were very different as they were federal creations.

    Comment by Christopher Rich — June 1, 2012 @ 4:27 pm

  11. Kansas was admitted to the union as a free state in 1861, so it appears that it would have been legal for Utah to change its mind about slavery. Just to be clear, the Compromise of 1850 admitted California to the union as a free territory, and Utah and New Mexico as territories that could choose for themselves whether to be free or slave-holding. Utah passed a slave code in 1852; New Mexico passed a slave code in 1859.

    Comment by small star — June 1, 2012 @ 5:22 pm

  12. “…jumped at Nate’s invitation to have lunch and discuss the history of servitude in Utah”

    Did you talk to the minimum wage food service people who made your lunch? They could tell you a thing or two about chattel slavery in Utah.

    Comment by Bradley — June 1, 2012 @ 11:08 pm

  13. small star,
    To be clear, Kansas was admitted as a free state after it adopted a state constitution prohibiting slavery. There was never a question as to whether a state could ban slavery, only a federal territory. That is why, for instance, Brigham Young stated that Utah would be admitted as a free state to the Union. He was essentially saying that Utah would adopt a constitution prohibiting slavery once this was authorized by Congress.

    Comment by Christopher Rich — June 1, 2012 @ 11:54 pm

  14. Bradley, stay on topic or take your politics elsewhere.

    Comment by Christopher — June 2, 2012 @ 7:30 am

  15. Looking back at the posts, I should clarify that even after Dred Scott, Popular Sovereignty continued in the sense that the citizens of the western territories (Utah, New Mexico, Kansas, Nebraska, etc.) could prohibit slavery when Congress allowed them to write a state constitution. But until these territories were admitted into the Union as states, the Dred Scott decision stood for the principle that they could not create affirmative laws that abolished slavery.

    Comment by Christopher Rich — June 2, 2012 @ 9:26 am

  16. Many of my questions have already been raised, and some have been answered, in the responses. I will try and keep this as brief as possible.

    First, a general response to the original paper: Bravo! Valuable contribution to the literature on the topic. Very impressive.

    Second, my exposure to slavery in Utah Territory has been from a genealogical standpoint, and that affected my original response to the paper. Those concerns were discussed very nicely in Ricks’ critique and your response and Margaret Young’s comment, so I don’t need to repeat any of that. I also wondered if the language or structure of the statute came from existing state statutes and Ricks raised the question and pointed to the Bernhisel library.

    Third, although there may have been more awareness of the distinctions in the 1850s, I imagine most people would not know or care about the differences between involuntary servitude and slavery. (Operating under the principle that if it looks like a duck, walks like a duck, and sounds like a duck, it’s probably a duck.) Calling what might technically be involuntary servitude “slavery” would not necessarily mean the person has an agenda. (Yes, I realize the statute draws the distinction, the census did not seem to. See the next point.)

    Fourth, two federal census slave schedules were created in 1860, one in Davis County listing 10 slaves, one in Salt Lake County listing 19 slaves. (You mention this on page 61.) (There may be additional people who were under some form of servitude for at least part of the time covered by the 1852 statute and perhaps up to or past 1860 but appeared in the lists of free inhabitants in 1860.) Why would slave schedules have been created if there was technically no slavery? Was it due to the Dred Scott Decision? Or a lack of federal government recognition for distinctions between the various forms of chattel slavery and involuntary servitude? Or some other reason?

    Fifth, one of the major points I understood from your paper was that the legislature was trying to balance several different goals, the major one being to keep slavery/involuntary servitude out of the newspaper and out of the courts so as not to offend either the Northern or Southern states, and the statute mostly succeeded in keeping the topic out of the newspapers and kept it out of the courts except for one case. (Is that a fair reading?)

    Sixth, I also understood that everyone pretty much ignored the law except for former Quaker Edwin Woolley, and in that case the law was unfortunately used to protect the interest of the slaveholder, in violation of the provisions of the statute. As far as I know from the literature and lack of other court records, the statute was never used to protect the interests of any slaves or former slaves. However, could the provisions of the statute explain why Brigham Young did not agree to the sale of Green Flake when the Flake family proposed selling him in 1854? Brigham Young would have known that under the provisions of the statute, Green Flake would have had to give his consent in a probate court; previous correspondence between William Crosby and Brigham Young state very plainly that he would not have consented.

    Seventh, I’ve assumed from your name that you are descended from C. C. Rich. As I’ve looked at family histories written by descendants of slave owners, I’ve noticed that most descendants either don’t know about the slave-holding, convey a vague sense of shame about it, have little context to interpret their ancestors’ situations, or tell a rosy story about what happened. (The slave owners were always benevolent and the slaves were always devoted and doting family retainers.) If you are a descendant of C. C. Rich, has your family history influenced your interest in or views on the subject?

    Eighth, thanks for the note (pp 64-65) about the difficulty of discussing black slavery without considering Indian slavery at the same time. I will try to keep that in mind.

    Ninth, before reading this article, I would have written (and probably have), “Utah was a slave territory,” since slavery was practiced in some form or another without interference from the government and as in the case of Dan, with the support of the government. What language would you recommend to someone writing about the subject?

    Comment by Amy T — June 5, 2012 @ 5:28 pm

  17. Amy T,
    Great questions. Let me try and answer them to the best of my ability.

    1. The Census. I wish I could say that I am an expert on the census, but I am not. However, what I can say is that the national censuses greatly oversimplify the slavery question in the United States. Let’s take New Jersey as an example. The New Jersey Legislature outlawed slavery in 1846, although it legally changed all individuals then in a state of slavery to “perpetual apprentices.” So, New Jersey did essentially what I argue Utah Territory did about 6 years later. Nevertheless, in the 1850 census, New Jersey is listed as having over 230 slaves in the state. In the 1860 census, this number is reduced to only 18. However, a note indicates that “colored apprentices” had been listed as slaves.

    This situation was perhaps even more complicated in Illinois, a state which I believe the Utah Legislature emulated in creating a system of involuntary servitude rather than slavery. Slavery had never been legal in Illinois as a result of the Northwest Ordinance. Yet Illinois allowed slave owners to bring slaves over the border as long as their status was changed to indentured servant and their children were eventually freed. Nevertheless, in the 1840 census well over 300 slaves are listed as living in Illinois.
    My imperfect conclusion is that the census did not make a distinction between actual slaves and African servants under various forms of involuntary servitude. As I look at the censuses, they generally only list 3 types of individuals: white, free colored, and slaves. In the particular case of Utah, the 1850 census occurred before “An Act in Relation to Service” was passed, and the 1860 census took place after the Dred Scott Decision. These chronological accidents may have complicated the issue. However, it seems likely the even if this were not the case, African servants under an indenture contract would still have been listed as slaves. This very brief overview should make clear that so-called “slaves” existed in many places where slavery was illegal. It also underscores the necessity of comparative studies rather than viewing Utah Territory in isolation.

    2. I agree with your reading of my article. I believe that the Utah Legislature wished to keep the whole slavery issue out of the spotlight. In the end, they believed that it could only hurt them and their chances for statehood.

    3. I cannot say for certain that most people ignored “An Act in Relation to Service” after it was passed. In fact, Brigham Young made direct mention of it in his speech to the Territorial Legislature the following year. It is accurate to say that so far as I know, the case of Dan in 1856 was the only time that the law was brought to court. Even though the statute was eventually used to keep Dan with his master, it should be mentioned the Edwin Woolley (and Brigham Young) seemed to be worried that Dan’s rights under the law were being violated, and that is why the case was brought to court in the first place. Indeed, they seemed to believe that in the end the law would defend Dan from arbitrary use by his master. Although I must admit that I do not know the particulars of the Green Flake incident that you mention, I think that you have made a reasonable conclusion.

    4. I am actually not descended from Charles C. Rich. I am descended among others from the John Taylor family (his sister Agnes was married to my ancestor John Rich), Heber C. Kimball, and Edwin D. Woolley whom I mention in the article. I will say that I was proud of Edwin’s actions in the case of Dan. Yet I did not know about this story until I had already begun my research. Rather, I was interested by what I believe was a general misreading of the law, and a gross oversimplification of a highly nuanced topic. Today, we (rightly) think of slavery as an absolute moral wrong, and therefore desire to provide simple, clear cut labels for historical figures which charge that they were either for slavery (very broadly defined) or completely against it. In reality the situation was far more complicated

    5. Was Utah a “slave territory?” I believe the simple answer to this question is no, although there are perhaps no simple answers to this question. To a very large degree, this entire topic is plagued by an imprecise use of language. First of all, what would you define as a “slave territory” or a “free territory?” For instance, in Oregon Territory, slavery was illegal, yet there is documented evidence of slaves living in Oregon without government interference. Did that make Oregon a slave territory? Nebraska Territory did not vote to abolish slavery until 1861, and in the 1860 census there were at least 15 slaves in the territory. So from 1854 until 1861, was Nebraska a slave territory or free territory? New Mexico finally passed an explicit slave code in 1859 when there were less than 20 African slaves in the Territory. But from 1850 until 1859, was it a free territory? As I mentioned in my answer to #1 above, this situation was just as complicated in the states. Was New Jersey a “free state” or a “slave state?” What about Illinois?

    These questions are compounded by an even more basic one. How do you define slavery? I have proposed a legal definition in my article based on how it was understood at the time. Legally speaking, a slave was a chattel, a piece of property, whose status would pass on to his or her children. Thus, if an individual was not legally a chattel, and if his or her status did not pass on to his children, then that individual was not a slave. I am sure that to many, my argument appears overly legalistic and they subscribe to the “walks like a duck, talks like a duck” theory that you mention above. I absolutely agree that this has a kind of common-sense appeal. Yet such a definition does not take into account the very real differences between servitude and chattel slavery; differences which were recognized in court on numerous occasions. Indeed, the 13th Amendment to the Constitution specifically recognizes a distinction between slavery and involuntary servitude. To say that such a system was “slave-like” is undeniable, but to say that it was a form of slavery simply begs the question.

    In the end, it seems clear that most people in Utah Territory were against chattel slavery, and probably would have voted for a free constitution as early as 1849 if they had been included in the state of California. “An Act in Relation to Service” did not create a system of chattel slavery although it did create a system of involuntary servitude similar to that of Illinois. It is possible that the Dred Scott decision and other changes in national policy altered the way in which people in Utah looked at African slavery. But as late as 1859, Brigham Young still stated that Utah would be a free state when admitted to the Union. Thus, if a two word label must be given, I would call Utah a “free territory.” But it would be more accurate to say something along the lines of “Similar to the state of Illinois, Utah did not legalize chattel slavery although it did create a modified system of indentured servitude and gradual emancipation for former slaves. Although this system was still slave-like in some respects, and many contemporaries continued to refer to such servants as slaves, it was an affirmative step away from chattel slavery as it was practiced in the American South and towards eventual emancipation.”

    I hope that is helpful.

    Comment by Christopher Rich — June 6, 2012 @ 9:51 pm

  18. What a striking conclusion! The information in these two posts and comments has been valuable. Many thanks to Christopher Rich and Nate Ricks and JI for the additional discussion.

    Comment by Amy T — June 7, 2012 @ 10:19 am

  19. I haven’t had a chance to read the underlying article, but I’m having a difficult time seeing even a hint of a difference between “slavery” and “involuntary servitude”–at least in the lives of the current slaves.

    What difference would it make to the slave if he were told that he wasn’t in bondage, not a slave, but simply in “involuntary servitude”? Or if he were told that his miserable condition was not heritable, that his children would be free, but that he was in bondage to another, owing his labor and most important ceding his freedom to that other person for the remainder of his life?

    Or, “eventual emancipation.” In the long run he’ll be free–or, as John Maynard Keynes would have said, dead.

    Finally, I don’t know if it’s just a typo, or if Christopher meant to substitute “indentured” for “involuntary” in his penultimate sentence. There were no “indentures” stating the terms upon which the “involuntary servant” was being held or the value to be given to him in exchange for his labor. The most common type of such indentures back then provided either for apprenticeship, where the apprentice was bound to labor for the master for a term of years, but in exchange received room and board and training in the craft, or where a person was bound to provide service for a term of years in exchange for goods or services given to him, such as the cost of migration to America. But in both types, the indentures were entered into voluntarily–often by the adult guardian (parent) in the case of apprenticeships–but again, and most important, voluntarily.

    I would be surprised–no, shocked–to hear of evidence that any slave entered into slavery voluntarily, or that any slave agreed to “involuntary servitude” voluntarily. As to the latter–how could he? By its terms the relationship is involuntary.

    Comment by Mark B. — June 7, 2012 @ 2:37 pm

  20. Mark B,
    I deal with many of the paradoxes that you mention in my article which is available online at the Utah Historical Quarterly website. However, here is a brief rundown of my thesis.

    Many Northern states did not abolish slavery all at once, but instead relied upon systems of gradual emancipation which moved from slavery to modified forms of indentured servitude to freedom over two generations. Following this model, Illinois (where slavery had never been legal) allowed slave owners to bring their slaves into the state as long as the slaves signed indenture contracts (which had no upper limits to their terms of service). Tbe children of these servants would then be free after another period of years. This type of system was viewed as “involuntary servitude” by courts in Illinois, but it was also held to be legally distinct from chattel slavery.
    I argue that the Utah Legislature essentially recreated this system when it passed “An Act in Relation to Service.” It allowed slave owners to enter into indenture contracts with their slaves when they entered Utah in order to maintain their service, but it also specified that their children would be free after a period of service.

    I will give two examples of how this form of servitude was different from slavery. A slave was a chattel, and had no say as to whether or not he or she would be sold and to whom. You may know that that an indentured servant could also be sold from one master to another, even though an indentured servant was not considered a chattel. Technically it was their labor contract that was sold, not the servant himself. In any case, the Utah statute specified that an African servant could not be sold without that servant’s express consent as given to a probate judge in the absence of his master or mistress. The statute also specified that African servants must receive reasonable compensation for their service.

    Comment by Christopher Rich — June 7, 2012 @ 6:33 pm

  21. Thanks for those explanations, Christopher. As I mentioned, I haven’t had time to read your article carefully, and probably should have done that before diving in.

    Even in modern professional sports one hears of a player being “sold” from one team to another–and we all know it’s the contract that’s being sold, not the actual player.

    I wonder about the indentures signed by the slaves entering Illinois–or Utah. Was the “servant” free to refuse to sign? Was he given the same protection from the probate judge as in the case of a prospective sale? I’ll go look for answers to those and other questions before I respond again.

    Comment by Mark B. — June 7, 2012 @ 9:52 pm