# Pre-13th Amendment. Could a free black person be enslaved? **URL:** \ **Category:** Factual Questions\ **Created:** [January 14, 2013, 2:10pm UTC](https://boards.straightdope.com/t/pre-13th-amendment-could-a-free-black-person-be-enslaved/647167 "2013-01-14T14:10:45Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [January 14, 2013, 2:10pm UTC](https://boards.straightdope.com/t/pre-13th-amendment-could-a-free-black-person-be-enslaved/647167/1 "2013-01-14T14:10:45Z")
In the tread on the Dred Scott decesion a few months back, one point made was that in his end-around the real issues Chief Justice Taney ignored the fact that if Dred Scott were in fact freed by entering Illinois (free-soil state) that he was in effect kidnapped and enslaved upon moving back to Missouri. Instead Taney came up with a bizarre common-law slavery in that while in Illinois Scott and Emerson continued the slave/master relationship. We also add to this that while no Black person, slave or free, could be a US citizen (according to Taney while everyone agree this was a huge stretch) and that state citizenship was left up to individual sovereign states and that since the 14th Amendment was not created yet even citizens in a state could have different rights. So the question is at any time and within any state, was it ever legal to kidnap a free Black person and force them into slavery legally? ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [January 14, 2013, 2:23pm UTC](https://boards.straightdope.com/t/pre-13th-amendment-could-a-free-black-person-be-enslaved/647167/2 "2013-01-14T14:23:40Z")
The real question then is, with importing slaves banned (IIRC) how did they make slaves (other than the the old-fashioned way)? What was the “legal” process to make someone a slave? COuld you or your guardian “indenture” yourself for life? Or were there basically 2 classes of “people”? I vaguely recall reading about slaves being created by criminal sentence - i.e. Irish sent to the New World as slaves - but it seemed vague on whether this was a traditional-life-and-children, life, or a term situation. Of course, such slaves were not as useful on the plantation where slaves were needed, so eventually the slave differential became a racial one. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 14, 2013, 2:30pm UTC](https://boards.straightdope.com/t/pre-13th-amendment-could-a-free-black-person-be-enslaved/647167/3 "2013-01-14T14:30:43Z")
The question in the OP is really, really good. I presume enslavement of freed blacks was barred by state law, but I can’t find anything to back that up. > [@](#): > > The real question then is, with importing slaves banned (IIRC) how did they make slaves (other than the the old-fashioned way)? What was the “legal” process to make someone a slave? COuld you or your guardian “indenture” yourself for life? Or were there basically 2 classes of “people”? Congress was prohibited from banning the importation of slaves until 1808 (Art. I, §9), by which time there were something like 4 million slaves already in the US. After that, slaves were “made” either the “old fashioned way” or smuggled. W.E.B. DuBois estimated that something like 300,000 slaves were smuggled into the US between 1808 and 1860. ---
**Author:** ![Freddy\_the\_Pig](https://avatars.discourse-cdn.com/v4/letter/f/a587f6/32.png) [@Freddy\_the\_Pig](https://boards.straightdope.com/u/Freddy_the_Pig)\ **Post date:** [January 14, 2013, 3:01pm UTC](https://boards.straightdope.com/t/pre-13th-amendment-could-a-free-black-person-be-enslaved/647167/4 "2013-01-14T15:01:20Z")
> [@Saint\_Cad](#): > > So the question is at any time and within any state, was it ever legal to kidnap a free Black person and force them into slavery legally? No, absolutely not, never at any time in any state. Private individuals could not legally kidnap people into slavery. There were circumstances under which free black people could be enslaved _by the state_, as punishment for crime or failure to follow regulations, and then be sold at auction. But private individuals could not do this, any more than a private person can put another person in jail. Note that _extralegal_ kidnapping was not unknown–you could kidnap a free person and claim they were a runaway or fugitive. But, the fact that it happened doesn’t make it legal. The only legal ways to acquire a slave were (a) importation, during times and places where this was allowed; (b) purchase of an already enslaved person; or (c) having one of your female slaves give birth. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [January 14, 2013, 3:25pm UTC](https://boards.straightdope.com/t/pre-13th-amendment-could-a-free-black-person-be-enslaved/647167/5 "2013-01-14T15:25:44Z")
> [@Freddy\_the\_Pig](#): > > No, absolutely not, never at any time in any state. Private individuals could not legally kidnap people into slavery. Why not? It’s not tha I believe you but certainly Blacks (even freemen) were not given the same legal protection as Whites and I find it hard to believe that in some states where Blacks were not considered people that any law barring kidnapping or enslavement starting out “No person …” would apply to any Black person. Were there laws that explicitly prevented kidnapping of Blacks? ---
**Author:** ![Freddy\_the\_Pig](https://avatars.discourse-cdn.com/v4/letter/f/a587f6/32.png) [@Freddy\_the\_Pig](https://boards.straightdope.com/u/Freddy_the_Pig)\ **Post date:** [January 14, 2013, 4:45pm UTC](https://boards.straightdope.com/t/pre-13th-amendment-could-a-free-black-person-be-enslaved/647167/6 "2013-01-14T16:45:09Z")
General laws against murder, robbery, and kidnapping were sufficient. The [census of 1860](http://www.bowdoin.edu/~prael/lesson/tables.htm) found approximately 250,000 “free persons of color” living in the 15 slave states. These people could not have existed if they could have been kidnapped into slavery by anybody, with impunity. The form of a petition for freedom, in fact, was an averment that the defendant had “made an assault upon” or imprisoned the possibly free African American plaintiff. See [here](http://books.google.com/books?id=3HUDVbRUu4UC&pg=PA205&lpg=PA205&dq=%22Scott+v.+Emerson%22+petition&source=bl&ots=EBORGaIhoF&sig=OP0OeHvVtAi94Z5tCDOOeP37_3c&hl=en&sa=X&ei=LCz0UKudOaWO2QW3q4DwDQ&sqi=2&ved=0CFMQ6AEwBg#v=onepage&q=%22Scott%20v.%20Emerson%22%20petition&f=false%5B/url) for a quotation from Dred and Harriet Scott’s petitions: > [@](#): > > Accordingly _pro forma_ charges of trespass for false imprisonment were filed, that Mrs. Emerson had “made an assault” upon them and that she had “imprisoned” them “without any reasonable or probable cause whatsoever”. Each charge also contained a statement that Mrs. Emerson was still holding the slave in servitude without a legal right to do so. The Scotts, of course, ended up losing their suit, when Missouri decided (for political reasons) to stop enforcing the pro-freedom laws of Illinois within its borders. But hundreds of other suits in every Southern state were successful, and the mere form of the petition indicates that kidnapping of free persons was illegal. It goes without saying that free black people were severely discriminated against, just as they were in the later Jim Crow era. Among other penalties, they could not testify in court. But, the fact that they lacked _many_ rights does not mean that they did not have _any_. Free black people could not legally be murdered, or robbed, or kidnapped into slavery. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [January 14, 2013, 5:01pm UTC](https://boards.straightdope.com/t/pre-13th-amendment-could-a-free-black-person-be-enslaved/647167/7 "2013-01-14T17:01:27Z")
Were any free people lacking rights, or simply did not have the government enforcing their rights? ---
**Author:** ![robert\_columbia](https://avatars.discourse-cdn.com/v4/letter/r/e79b87/32.png) [@robert\_columbia](https://boards.straightdope.com/u/robert_columbia)\ **Post date:** [January 14, 2013, 5:31pm UTC](https://boards.straightdope.com/t/pre-13th-amendment-could-a-free-black-person-be-enslaved/647167/8 "2013-01-14T17:31:43Z")
[Previous](http://boards.straightdope.com/sdmb/showthread.php?t=663536) thread on selling yourself into slavery in the antebellum US. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [January 14, 2013, 6:56pm UTC](https://boards.straightdope.com/t/pre-13th-amendment-could-a-free-black-person-be-enslaved/647167/9 "2013-01-14T18:56:09Z")
But Freddy you raise the exact same case that caused the question. Taney ignored the question as to whether or not Scott was free in Illinois. If Scott was free in Illinois then in fact he was “assaulted” and “imprisoned”. Taney basically said that they acted as if they were master/slave in Illinois and upon moving back to Missouri what happened in Illinois didn’t matter. While this certainly implies that a slaveowner could take their slaves into a free-soil state and not lose their slaves, Taney went to a lot of work to explicitly NOT say that. Why? It also left open whether or not the slave needs to seek freedom in a free state to be freed. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 14, 2013, 7:00pm UTC](https://boards.straightdope.com/t/pre-13th-amendment-could-a-free-black-person-be-enslaved/647167/10 "2013-01-14T19:00:38Z")
> [@Saint\_Cad](#): > > While this certainly implies that a slaveowner could take their slaves into a free-soil state and not lose their slaves, Taney went to a lot of work to explicitly NOT say that. Why? Because (like a lot of decisions of early Supreme Courts) the Dred Scott decision was primarily a political one, not a legal one. ---
**Author:** ![solosam](https://avatars.discourse-cdn.com/v4/letter/s/9d8465/32.png) [@solosam](https://boards.straightdope.com/u/solosam)\ **Post date:** [January 14, 2013, 8:04pm UTC](https://boards.straightdope.com/t/pre-13th-amendment-could-a-free-black-person-be-enslaved/647167/11 "2013-01-14T20:04:18Z")
My understanding was that blacks were routinely captured and enslaved. This is a large part of the reason the blacks who fled south shacked up with the Seminoles… for protection from raiders who wanted to re-enslave them. Even people who were born in Spanish territory and therefore free men could be enslaved in these raids. As above, whether this was legal was an entirely different matter. ---
**Author:** ![Skald\_the\_Rhymer](https://avatars.discourse-cdn.com/v4/letter/s/ecccb3/32.png) [@Skald\_the\_Rhymer](https://boards.straightdope.com/u/Skald_the_Rhymer)\ **Post date:** [January 14, 2013, 8:20pm UTC](https://boards.straightdope.com/t/pre-13th-amendment-could-a-free-black-person-be-enslaved/647167/12 "2013-01-14T20:20:19Z")
> [@TriPolar](#): > > Were any free people lacking rights, or simply did not have the government enforcing their rights? Unless you have a private island no one else knows about, a private army no one dares fight, or are from Krypton, I don’t see much difference between “not having rights” and “living under a government that does not protect your rights.” ---
**Author:** ![robert\_columbia](https://avatars.discourse-cdn.com/v4/letter/r/e79b87/32.png) [@robert\_columbia](https://boards.straightdope.com/u/robert_columbia)\ **Post date:** [January 15, 2013, 1:31am UTC](https://boards.straightdope.com/t/pre-13th-amendment-could-a-free-black-person-be-enslaved/647167/13 "2013-01-15T01:31:14Z")
And it’s clearly the case that slaves imported from Africa were, in fact, _kidnapped_ from Africa, at least in a practical or moral sense if not a fully legal one. Did a court or statute ever state at what point in the process the victim was “legally enslaved”? E.g. they were considered free people in Africa until such time as they were loaded onto a slave ship, after which they legally become slaves. This implies that a slave that could convince a court that the proper “enslavement” procedure was not followed might have a claim to freedom on due process grounds. Was there anything specific in law (as opposed to politics or culture) that specified that this process of legally turning someone into a slave could not happen on US (or the 13 colonies) soil? What about other countries? Could a free black person living in Nova Scotia in 1801 be “legally enslaved” per US law by US slavers engaged in raids against the Nova Scotia coast and he became as much a slave as one taken from west Africa? If not, how was Nova Scotia legally different from Africa? ---
**Author:** ![Shmendrik](https://avatars.discourse-cdn.com/v4/letter/s/ee7513/32.png) [@Shmendrik](https://boards.straightdope.com/u/Shmendrik)\ **Post date:** [January 15, 2013, 1:35am UTC](https://boards.straightdope.com/t/pre-13th-amendment-could-a-free-black-person-be-enslaved/647167/14 "2013-01-15T01:35:03Z")
> [@robert\_columbia](#): > > And it’s clearly the case that slaves imported from Africa were, in fact, _kidnapped_ from Africa, at least in a practical or moral sense if not a fully legal one. In a practical sense, weren’t slaves purchased in Africa after already being enslaved by someone else? ---
**Author:** ![robert\_columbia](https://avatars.discourse-cdn.com/v4/letter/r/e79b87/32.png) [@robert\_columbia](https://boards.straightdope.com/u/robert_columbia)\ **Post date:** [January 15, 2013, 1:40am UTC](https://boards.straightdope.com/t/pre-13th-amendment-could-a-free-black-person-be-enslaved/647167/15 "2013-01-15T01:40:27Z")
> [@robert\_columbia](#): > > And it’s clearly the case that slaves imported from Africa were, in fact, _kidnapped_ from Africa, at least in a practical or moral sense if not a fully legal one. Did a court or statute ever state at what point in the process the victim was “legally enslaved”? … For example, I think there is a legally discernible moment when a wannabe soldier legally becomes subject to the UCMJ. This could affect the jurisdiction of a military court or the applicability of a military offense to a recruit who committed an unacceptable act before their paperwork has all gone through and they have taken the oath of enlistment. I remember that there was a draft resistor case where it was found that the resistor’s noncompliance with the order to step forward to take the oath of enlistment meant in a legal sense that he was never actually a true servicemember (and thus not prosecutable under the UCMJ or whatever was in force then), but only under regular civilian law or something like that. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [January 15, 2013, 1:54am UTC](https://boards.straightdope.com/t/pre-13th-amendment-could-a-free-black-person-be-enslaved/647167/16 "2013-01-15T01:54:12Z")
> [@Skald\_the\_Rhymer](#): > > Unless you have a private island no one else knows about, a private army no one dares fight, or are from Krypton, I don’t see much difference between “not having rights” and “living under a government that does not protect your rights.” The issue came up in the thread. I was under the impression that all free people had the same constitutional rights, but certainly all were not able to enjoy them. To those people there would be no effective difference as you say. I merely asked to clarify what the law actually was. ---
**Author:** ![Lord\_Feldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lord_feldon/32/341_2.png) [@Lord\_Feldon](https://boards.straightdope.com/u/Lord_Feldon)\ **Post date:** [January 15, 2013, 1:54am UTC](https://boards.straightdope.com/t/pre-13th-amendment-could-a-free-black-person-be-enslaved/647167/17 "2013-01-15T01:54:38Z")
The [Fugitive Slave Act of 1850](http://www.ohiohistorycentral.org/entry.php?rec=1483) was used to enslave some free black people. “Legal” might be stretching it, but the system seems to have been so completely rigged that I’m not sure it really was illegal or unintended: > [@](#): > > The Fugitive Slave Law clearly favored the slave owners. Anyone caught hiding or assisting runaway slaves faced stiff penalties. United States marshals had to actively seek runaway slaves and return them to their rightful owners. If a marshal refused, the federal government would fine the officer one thousand dollars. African Americans could not present evidence to a federal commissioner appointed to hear a case and determine an African American’s status as a slave or free person. The slave owner was responsible for paying the commissioner. If the commissioner ruled in favor of the white man, the commissioner received ten dollars. If he ruled against the slaveholder, the commissioner earned only five dollars. ---
**Author:** ![Leo\_Bloom](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/leo_bloom/32/10377_2.png) [@Leo\_Bloom](https://boards.straightdope.com/u/Leo_Bloom)\ **Post date:** [January 15, 2013, 4:45am UTC](https://boards.straightdope.com/t/pre-13th-amendment-could-a-free-black-person-be-enslaved/647167/18 "2013-01-15T04:45:30Z")
> [@robert\_columbia](#): > > For example, I think there is a legally discernible moment when a wannabe soldier legally becomes subject to the UCMJ. This could affect the jurisdiction of a military court or the applicability of a military offense to a recruit who committed an unacceptable act before their paperwork has all gone through and they have taken the oath of enlistment. I remember that there was a draft resistor case where it was found that the resistor’s noncompliance with the order to step forward to take the oath of enlistment meant in a legal sense that he was never actually a true servicemember (and thus not prosecutable under the UCMJ or whatever was in force then), but only under regular civilian law or something like that. Nitpick: resister Someone might come along for a pun. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 15, 2013, 2:36pm UTC](https://boards.straightdope.com/t/pre-13th-amendment-could-a-free-black-person-be-enslaved/647167/19 "2013-01-15T14:36:57Z")
> [@Shmendrik](#): > > In a practical sense, weren’t slaves purchased in Africa after already being enslaved by someone else? It depends on how you define “enslaved”. People who captured slaves for export typically sent them directly to the slave markets, because they’d never fetch as good a price after already having worked for years. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [January 15, 2013, 3:14pm UTC](https://boards.straightdope.com/t/pre-13th-amendment-could-a-free-black-person-be-enslaved/647167/20 "2013-01-15T15:14:15Z")
I can think of one situation where a free black person could be legally enslaved. Some states had laws limiting the manumission of slaves: it was narrowly allowed but restricted. Any slave who was freed by his or her owner had to leave the state within a set period of time (in Virginia, for example, it was one year but I believe in some states it was as short a period as thirty days). If the former slave was still in the state when that period ended, he or she could be re-enslaved.