Equality, Concept of

Unequal Before the Law

In slaveholding states, the code that simply bore the state name was in fact only applicable to whites; a separate code, the slave code, was applicable to blacks. The slave code governed, among other things, the punishment of slaves accused of “wrongs.” According to both these legal codes and the courts’ interpretations of them, slave owners were legally free to punish their slaves for any offense without intervention from the judiciary. This meant that punishment of blacks was generally inflicted on the body and that a conviction, or any legal process, was not necessary as a precursor to punishment. On the rare occasions when blacks were tried for their offenses, generally slaves whose alleged offenses bore upon the larger (white) community and free blacks, they were often subject to separate legal codes. These codes mandated different punishments for the same offenses and blacks were subject to some punishments that whites were not. In Virginia, it was typical for slaves who ran away to be sentenced to castration or hobbling, while no such crime existed for whites. Likewise, there was no crime for which whites could be sentenced to either of these punishments. Moreover, prescribed punishments for many crimes were lighter for whites than for blacks. Virginia decreed imprisonment for whites but death for blacks convicted of a variety of felonies, ranging from buying or receiving a stolen horse to rape. Blacks were tried in separate courts without juries, comprised of county justices and often slave-owning assessors.

While state laws mandating unequal treatment of slaves, free blacks, and whites proliferated, it was the infamous Dred Scott decision of 1857 that provided federal sanction for these laws. After failing to purchase the freedom of his family and himself, Scott sued his master, John Emerson, for his freedom in 1846, claiming that his and his wife Harriet's presence and residence in free territories and their daughter's birth on a steamboat between free and slave territories should be all that was required for emancipation. The Supreme Court found against Scott and argued, among other things, that black people were racially ineligible for citizenship. Chief Justice Roger Taney wrote the majority decision, declaring most infamously that “The negro has no rights which the white man is bound to respect.” From the Dred Scott[Page 551]decision in 1857 until at least the enactments of the Thirteenth, Fourteenth, and Fifteenth Amendments, state and federal laws not only permitted but also required unequal treatment before the law, in criminal and other realms.

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