Posted on

How Did Slavery Ever Become A Legal Institution?

In the beginning, and for several decades afterward, slavery was not primarily a governmental institution, neither in Europe, nor the United States.

Initially, the enslavement of Africans was almost all done privately.

There were, to be sure, a handful of governmental charters, but in the early days, the preponderating number of slaves were traded by private entrepreneurs who exchanged rum, spices, and other items to tribal chiefs for Africans whom these same tribal chiefs had already enslaved. In essence, they were relocated.

Make no mistake, however: the European traders were indeed responsible for perpetuating that barbaric institution; but they were not the people responsible for “enslaving the tribe that had lost a war or the man who had fallen into debt or the child sold by the family,” as historian Roger McGrath put it. That blame goes directly to the tribal African chiefs.

In fact, for a very long time slavery was not recognized as a legal institution in the colonies of this country. Thus, the first Africans weren’t, strictly speaking, slaves but rather indentured servants.

The fact of it becoming a legalized institution in the United States was actually brought about by a black man named Anthony Johnson, himself an erstwhile slave back in Africa, and then an indentured servant in the American colonies. After his indentured servitude had expired, Mr. Johnson was granted land in Virginia, where he subsequently acquired several indentured servants of his own – among them, one John Castor, an African who had been sold to him while already in the American colonies.

It was these same men, John Castor and Anthony Johnson, both black, who were initially responsible for the institution of slavery becoming recognized legally in this country.

When John Castor’s years of indentured servitude were finished, he was not immediately granted his freedom. And so he sued for it, as well he should have, as you and I would have too.

But Anthony Johnson, his owner, fought back, alleging in court that John Castor had never entered into what they called a “contract of indenture” but had been bought in toto as a slave in Africa. In a landmark decision, in 1654, the high court of the colony of Virginia found in Anthony Johnson’s favor, pronouncing that “John Castor was a servant for life.”

Chilling words, which no human should ever have to hear.

This was a monumental and precedent-setting case, later cited to weariness by the Southern colonies, so that slavery was soon officially institutionalized.

The fact that two black men are in large part the authors of American slavery is a piece of American history well worth teaching, no matter how postmodern the curriculum.

It is also a fact that black Americans held slaves all throughout the Civil War.

“In 1860, some 3,000 blacks owned nearly 20,000 black slaves. In South Carolina alone, more than 10,000 blacks were owned by black slaveholders. Born a slave in 1790, William Ellison owned 63 slaves by 1860, making him one of Charleston’s leading slaveholders. In the 1850 census for Charleston City, the port of Charleston, there were 68 black men and 123 black women who owned slaves. In Louisiana’s St. Landry Parish, according to the 1860 census, black planter Auguste Donatto owned 70 slaves and farmed 500 acres of cotton fields” (“Slavery’s Inconvenient Facts,” Chronicles, November 2001).

In terms of total population, white or black, the majority of people of either color did not own slaves in the south. In fact, “75 percent of Southerners neither owned slaves themselves nor were members of families who did” (Ibid).

Posted on

Do Animals Possess Rights?

A reader writes:

Dear Ray: I recently read a synopsis of a book about the question of animal rights, and I’m curious to know your take. Do animals possess rights? If so, where do these rights reside?

Thanks,

Pig Bodine

Dear Pig Bodine: Rights are a formal codification of human freedom.

Rights, as Herbert Spencer said, are “politico-ethical precepts” that define and delimit human freedom in large groups.

This last thing is emphasized because rights would not be necessary if you lived alone, or even if you lived in a small and insular society. Rights derive from three things: human individuation, human society, and the power of choice, which gives rise to moral agency.

Rights are discoveries, not inventions. One proof of this is found in the fact that the only alternative to acting by right is acting by permission. Whose permission? Answering that question is where you’ll first begin to glimpse the true nature of rights. Indeed, rights are not only not invented: they are an outgrowth of a crucial human need: morality.

Those who would deny rights consistently must, in order to remain consistent, espouse amoralism. Amoralism means no good and no bad. Amoralism does not mean a different standard of good and bad. It means that there is no such thing as good or bad. In the same way, and for the same reason, that you can’t describe a lizard’s behavior as right or wrong because the lizard is amoral, so it is, according to the amoralist, with human beings. Chronic lying, rape, genocide, coprophilia — these, to the amoralist, are all neither bad nor good; they just are. Conversely, self-control, courage, honesty, happiness — these also are neither good nor bad; they just are. To an amoralist, all human actions are exactly equal because from her or his viewpoint morality simply does not exist: morality is an arbitrary human invention without any referent in reality.

Amoralism is the end result of denying the existence of rights.

If humans do not exist by right, humans exist by permission. Whose permission? Whoever holds control. Force therefore becomes the standard.

Rights have been under siege since the moment they were first brought into the light, and yet they’ve remained remarkably resilient. The reason rights have remained resilient is that in some sense they are self-evident: we each own ourselves.

No freedom and no justice can exist if rights don’t exist — or, in other words, if rights are invented. Indeed, one of the definitions that Oxford gives for rights is the following: “A justifiable claim, on legal or moral grounds, to have or obtain something, or to act in a certain way.” Another definition that Oxford gives is this: “Righteousness, truth, or justice; esp. the cause of truth or justice.”

The very word rights in this context has its origins in ancient Roman law and is related to the Roman word jus. According to historian J. Stuart Jackson, “jus is wider than that of positive law laid down by authority, and denotes an order morally binding on the members of the community.” In the Roman sense of the word, “right” meant “what is just.” The Roman juris Ulpian considered a person’s right “that which is due him [or her] given his [or her] status as a human being.” (Cambridge Ancient History: The Primitive Institutions of Rome, H. Stuart Jackson.)

Rights entitle holders to certain freedoms — specifically, the freedom to move and act in a certain way. Notice that phrase “freedom to act.” It is a crucial distinction because rights do not assure you of anything except the freedom to try.

But what is the stuff of rights? Of what are they made?

To begin with, rights are not primaries. They are precipitated by something. This means that rights derive from something more fundamental. And that something is a thing which is very specific within the human condition: the faculty of choice.

Choice is a prerequisite of morality: there can be no good or bad if there is no freedom to choose a certain course of action. Rights, in turn, are an elaboration upon morality — specifically, morality within a societal framework. That is the link between ethics and politics, which rights supply us with. It is for this reason that rights have been described by Herbert Spencer as “politico-ethical precepts.”

Rights, then, are ultimately grounded in the human capacity of choice — which is to say, free will — because human action is not automatic; and so, therefore, human survival is not automatic but entails choice. As Samual Adams expressed it:

Among the natural rights … are these: First a right to life, secondly to liberty, thirdly to property; together with the right to defend them in the best manner they can…. Rights are evident branches of, rather than deductions from, the duty of self-preservation, commonly called the first law of nature.

Rights are necessary for the full exercise of morality, because coercion is the opposite of choice. Some humans may flourish best under coercion, and some humans may even prefer coercion to freedom, but that’s not the point. In any case, it is no argument against rights. The point here is that if you believe humans possess moral agency, you believe, perforce, that rights are inherently part of each (healthy) human: without rights, we would not each have the authority in which to choose moral (or immoral) action. And if you don’t believe that humans possess moral agency, then you don’t believe that humans possess the faculty of choice, in which case you don’t believe that humans can think, but live and act amorally.

Individuation is the crux of rights.

What individuation refers to is the fact that we each have the potential to decide (or not) whether to engage the brain. As the philosophical psychologist Rollo May said:

When we analyze will with all the tools that modern psychology brings us, we shall find ourselves pushed back to the level of attention or inattention as the seat of will.” (Emphases added). “The effort which goes into the exercise of will is really effort of attention; the strain in willing is the effort to keep the consciousness clear, i.e. the strain of keeping attention focused (Rollo May, Love and Will, 1969).

That is the fundamental act of will — or, if you prefer, the fundamental choice — that determines individuation. It is an act of will which the individual alone can perform, and which the individual alone is responsible for. It is the locus of human sovereignty. (It is also, incidentally, the reason a fetus does not possess rights, but the woman carrying the fetus does: she is individuated; the fetus is not.)

The stuff of rights, then, is the faculty of choice, which gives rise to right and wrong courses of action. But choice comes first. Without choice, there is no morality, and thus there are no rights.

I’m sometimes asked: where do rights reside? Do they dwell as ghosts inside us? The answer is, no, they do not dwell as ghosts inside us. Rights are principles. They reside within the human condition — specifically, the human brain, which operates by means of reason, the activation of which is chosen: it must be willed by each individual. If human action were not chosen but automatic, as it is with the beasts of our animal kingdom, then there would be no such thing as rights, because our actions would be automatic. We would live as those beasts — neither moral nor immoral, but amoral. But human action is chosen. And that is what necessitates the freedom to choose.

The evolution of the human brain is the thing that created rights. How so? Because this evolution created a rational animal called a human being — which is to say, it created the freedom of the will. In slightly more religious terms than I’m comfortable with, Dante Alighieri (1265-1321) otherwise put it well:

The greatest gift that God in His bounty made in creation, and the most conformable to His goodness, and that which He prizes the most, was the freedom of will, with which the creatures with intelligence, they all and they alone, were and are endowed (“Paradiso,” Canto V, lines 19-24).

Animals do not possess rights because animals are not moral agents — i.e. they are not rational agents. Animals act by genetic predilection or genetic proclivity. The action of animals is not chosen in the full sense of the word. For this reason, the action of animals is amoral.

The grizzly that mauls the innocent child is not evil. The man who mauls the innocent child is.

So it is here the question inevitably arises that if animals do not possess rights, neither, therefore, do babies — or, at least, those babies who only have a few months to live — and nor, for the same reason, do severely brain-damaged people, who are unable to exercise a rational faculty. This flimsy peg (the so-called “argument from marginal cases”) is the postmodern peg that animal rights activists are now hanging their entire case upon.

The first thing to be said about it is that it’s a non sequitur.

The second thing to be said is that severely brain-damaged people do not possess actual rights, for the very reason that we outlined above: they are not able to think and reason. The unalienable right to life, liberty, and property hinges upon the capacity to think, which implies choice, and also upon one’s knowledge. In the same way that healthy children develop the moral faculty gradually, over a span of years, (healthy) children develop rights gradually as they mature into independent beings. Brain-damaged humans who cannot exercise the power of rationality — which is to say, morality — cannot, obviously, exercise their rights, because those rights reside in the very thing these people lack. Thus she (or he) does not possess actual rights. The protection of these people is something granted them for being a part of the human species (and, of course, the chance of medical breakthroughs).

In any case, the attempt to grant animals rights on the basis of so-called marginal human cases does not follow. In fact, it is to negate the very term rights by assuming that marginal cases are the norm and therefore the standard. To grant, for instance, an animal “the right to be left alone” (as it’s often phrased these days) means, among many other things, that there can be no such thing as meat-eating (even under dire conditions), but more than that: there can be no such thing as the domestication of animals, and no such thing as pet ownership: obviously, rights preclude any sort of humans-eating-or-owning-other-humans. If, moreover, it were proven that plants also feel pain and also possess sentience, as many people believe, then plants too possess the “right to be left alone,” and human beings starve because we possess moral agency, while the rest of the animal (and plant) kingdom does not starve, because they are held to no such standards — for the very reason that humans are held to such standards: the rational mind.

(If you think plant rights is a far-fetched idea, don’t read this.)

What this positions amounts to is a stupendous contradiction: animals have the right to be left alone, even though they don’t possess the very thing that necessitates rights: moral agency and the power of reason. And because they don’t possess this, they are incapable of respecting the rights of other animals (including humans); and yet their “rights” must still be respected — by humans alone, because we alone possess the very thing that gives rise to rights. This is a grave and dangerous misunderstanding of the word rights — most specifically of the human need that gives rise to rights, which need is not, incidentally, marginal case at all. If this philosophy were adopted, it would obliterate the idea of rights entirely. To say nothing of the vast legal apparatus that would be required in order to codify, systematize, and institute every animal’s “right to be left alone,” as well as the absurd spectacle of humans presuming to speak for the “wronged” animals, which does have historical precedent, and which, in fact, someone once made a movie about.

There would also, of course, be the not insignificant necessity of human punishment meted out (by humans), for that wronged beast, which beast, however, does not survive by reason but must have justice (i.e.the respect for rights) delivered unto it, even though that beast has absolutely no conception of justice, and never will. This is wrong, all wrong. The distinguishing characteristic of rights is compossibility. Thus there is a very simple, and entirely foolproof, method for determining if something is a right or not: Your rights, my rights, every person’s rights, stop where another’s begin. If you follow that maxim, you’ll never confuse the issue.