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The Terms “Black” And “Negro” In U.S.

Law Are Equal To

“Slave” and “Criminal”
Abraham Lincoln Represented a Moorish plaintiff from Portugal in William Dungey v. Joseph
Spencer. Lincoln Successfully argued:
“My client is not a Negro, though it is a crime to be a Negro–no crime to be born with a black
skin. But my client is not a Negro. His skin may not be as white as ours, but I say he is not a
Negro, though he may be a Moore.” “Mr. Lincoln,” interrupted Judge Davis, scarcely able to
restrain a smile, “you mean a Moor, not Moore.” “Well, your Honor, Moor, not C.H. Moore,”
replied Mr. Lincoln, with a sweep of his long arm toward the table where Moore and I sat. “I say
my client may be a Moor, but he is not a Negro.”
In its most general sense, the term “badge of slavery” therefore refers to indicators, physical or
otherwise, of African Americans’ slave or subordinate status. As Professor George Rutherglen
has pointed out, the phrase “badge of slavery” was used metaphorically as far back as the
Roman Empire to refer to “evidence of political subjugation. See George Rutherglen, The
Badges and Incidents of Slavery and the Power of Congress to Enforce the Thirteenth
Amendment, in The Promises Of Liberty: The History And Contemporary Relevance Of The
Thirteenth Amendment 163, 166 & n.23 (Alexander Tsesis ed., 2010) (citing P. Cornelius Tacitus,
The Annals And The Histories bk. XV, at 31 (1952)) (recounting incident where a victorious
general was asked to treat a conquered king so that he “might not have to endure any badge of
slavery”); see also id. at n.19 (citing use of phrase during English Civil War).
This is not the first time that Moors rejected the Negro/Black Badge, much earlier in 1790. On
January 20, 1790, a petition was presented to the South Carolina House of Representatives
from a group of four individuals who were subjects of the Moroccan emperor and residents of
the state. They desired that if they happened to commit any fault amenable to be brought to
justice, that as subjects to a prince allied with the United States through the Moroccan–
American Treaty of Friendship, they would be tried as citizens instead of under the Negro Act of
1740. The Free Moors, Francis, Daniel, Hammond and Samuel petitioned on behalf of
themselves and their wives Fatima, Flora, Sarah and Clarinda.[1]
They explained how some years ago while fighting in defense of their country, they and their
wives were captured and made prisoners of war by an African king. After this a certain Captain
Clark had them delivered to him, promising they would be redeemed by the Moroccan
ambassador residing in England, and returned to their country. Instead, he transported them to
South Carolina, and sold them for slaves. Since then, “by the greatest industry,” they purchased
freedom from their respective masters. They requested that as free born subjects of a Prince in
alliance with the U.S., that they should not be considered subject to a state law (then in force)
known as the negro law. If they be found guilty of any crime or misdemeanor, they would
receive a fair trial by lawful jury. The matter was referred to a committee consisting of Justice
John Faucheraud Grimké, General Charles Cotesworth Pinckney and Edward Rutledge.
Edward Rutledge reported from the committee on the petition on the same day and the House
agreed to the report, which read as follows Vizt: “They have Considered the same and are of
opinion that no Law of this State can in its Construction or Operation apply to them, and that
persons who were Subjects of the Emperor of Morocco being Free in this State are not triable
by the Law for the better Ordering and Governing of Negroes and other Slaves.” Because the
report was not forwarded to the state Senate for concurrence, it did not have the force of law
but served as an advisory opinion offering the sense of the House. The report was later
published in the Charleston City Gazette and the Charleston State Gazette of South Carolina.
Click Here to read the Sundry Free Moors Act o 1790.
Dr. Arica Coleman, an assistant professor at the University of Delaware who is of Rappahannock
and African American descent, discussed how the term negro might actually be referring to an
American Indian. According to her latest book, That the Blood Stay Pure, the term’s origins can
be traced to medieval Italy where it was a classification of a skin color, not race. Additionally,
Europeans often referred to indigenous populations of their communities as negroes. In the
Portuguese colony of Brazil, Indians were called negros da terra meaning negroes of the land.
Coleman pointed out during the conference that the early Virginia legislature identified Moors
and negroes separately. See
6 Shocking Facts About Slavery, Natives and African Americans
In New Jersey, we have learned from hard experience that although skin color is “public” in a
sense, the state must nevertheless assert a compelling governmental interest before using
preconceived notions about the implications of skin color to justify police conduct. The New
Jersey State Constitution: A Reference GuideBy Robert F. Williams. “The public as a whole has a
significant interest in ensuring equal protection of the laws and protection of First Amendment
liberties.” Jones v. Caruso, 569 F.3d 258, 278 (6th Cir. 2009).
The phrase badge of slavery: acquired a more specific range of meanings in American discourse
referred to the skin color of African Americans. In some states and some courts, dark skin was
presumptively a “mark or sign” of slave status. See MORRIS, supra note 49, at 21. State v.
Whitaker, 3 Del. 549, 550 (1840); see also State v. Rash, 6 Del. 271, 274 (Del. Ct. Gen. Sess.
1867) (“As slavery was exclusively confined to the black or colored race, color became the
badge or sign of servitude . . . .”).
As a consequence, some legal restrictions that applied to slaves, like the bar on testimony in
any case involving a white person, also applied to free blacks because they also wore the badge
of slavery. Gerrit Smith, Editorial, THE LIBERATOR, March 7, 1835, at 39.
There should be little question that the historical assumption that “black means criminal”
continues to hold sway today. See, e.g. ARMOUR, supra note 65, at 2.
Additionally, race based criminal suspicion, legally enforced through the Slave Codes, and was
used to keep blacks in fear and in their “place” during slavery. HIGGINBOTHAM, IN THE MATTER
OF, supra note 35, at 8.
Criminality of the Negro was a central concept in numerous public-discourses. “Americans as a
mass,” a 1915 editorial in The Crisis astutely observed,“regard . . . Negroes as criminals.
National Association for the Advancement of Colored People, “Editorial: Mohr,” The Crisis: A
Record of the Darker Races 11 (1916): 244.
White news papers tended to portray black Americans as especially lawless and the almost
ubiquitous mention of (black) race in crime stories“tend[ed] to stamp the entire Negro group as
criminals Chicago Commission on Race Relations. The Negro in Chicago: A Study of Race
Relations and a Race Riot (Chicago, IL: University of Chicago Press, 1922), 525
Even efforts to legislatively combat lynch violence were accompanied by rhetorical
constructions of black criminality. As the 1921, 1922 debate in the House of Representatives
over a federal anti-lynching bill demonstrates, attempts to outlaw lynching were met with
decrees from elected officials that such legislation would “encourage rape. Barbara Holden-
Smith, “Lynching, Federalism, and the Intersection of Race andGender in the Progressive Era,”
Yale Journal of Law and Feminism 8 (1996): 56.
For a discussion of this dynamic modern society, see Patricia J. Williams Meditations on
Masculinity, in Constructing Masculinity 238, 242 (Maurice Berger et al. eds `1995) (describing
the function of the connection between race and crime and stating that this connection results
in [a]ny black criminal becom[ing] all black men, and the fear of all black men becom[ing] the
rallying point for controlling all black people”).
One in four black men born since the late 1970s has spent time in prison. Ex-offenders are
excluded from a wide variety of jobs, running the gamut from septic-tank cleaner to barber to
real-estate agent, depending on the state. And in the limited job pool that ex-offenders can
swim in, blacks and whites are not equal. For her research, Pager pulled together four testers to
pose as men looking for low-wage work. One white man and one black man would pose as job
seekers without a criminal record, and another black man and white man would pose as job
seekers with a criminal record. The negative credential of prison impaired the employment
efforts of both the black man and the white man, but it impaired those of the black man more.
Startlingly, the effect was not limited to the black man with a criminal record. The black man
without a criminal record fared worse than the white man with one. “High levels of
incarceration cast a shadow of criminality over all black men, implicating even those (in the
majority) who have remained crime free,” Pager writes. Effectively, the job market in America
regards black men who have never been criminals as though they were.
The Black Family in the Age of Mass Incarceration
“the crime-stained blackness of the negro” It is impossible to conceive of the Gray Wastes
without first conceiving of a large swath of its inhabitants as both more than criminal and less
than human. These inhabitants, black people, are the preeminent outlaws of the American
imagination. Black criminality is literally written into the American Constitution—the Fugitive
Slave Clause, in Article IV of that document, declared that any “Person held to Service or
Labour” who escaped from one state to another could be “delivered up on Claim of the Party to
whom such Service or Labour may be due.” From America’s very founding, the pursuit of the
right to labor, and the right to live free of whipping and of the sale of one’s children, were
verboten for blacks.
The Black Family in the Age of Mass Incarceration
The crime of absconding was thought to be linked to other criminal inclinations among blacks.
Pro-slavery intellectuals sought to defend the system as “commanded by God” and “approved
by Christ.” In 1860, The New York Herald offered up a dispatch on the doings of runaway slaves
residing in Canada. “The criminal calendars would be bare of a prosecution but for the negro
prisoners,” the report claimed. Deprived of slavery’s blessings, blacks quickly devolved into
criminal deviants who plied their trade with “a savage ferocity peculiar to the vicious negro.”
Blacks, the report stated, were preternaturally inclined to rape: “When the lust comes over
them they are worse than the wild beast of the forest.” Nearly a century and a half before the
infamy of Willie Horton, a portrait emerged of blacks as highly prone to criminality, and
generally beyond the scope of rehabilitation. In this fashion, black villainy justified white
oppression—which was seen not as oppression but as “the corner-stone of our republican
The Black Family in the Age of Mass Incarceration
To fortify the “republican edifice,” acts considered legal when committed by whites were
judged criminal when committed by blacks. In 1850, a Missouri man named Robert Newsom
purchased a girl named Celia, who was about 14 years old. For the next five years, he
repeatedly raped her. Celia birthed at least one child by Newsom. When she became pregnant
again, she begged Newsom to “quit forcing her while she was sick.” He refused, and one day in
June of 1855 informed Celia that he “was coming to her cabin that night.” When Newsom
arrived and attempted to rape Celia again, she grabbed a stick “about as large as the upper part
of a Windsor chair” and beat Newsom to death.
The Black Family in the Age of Mass Incarceration
judge rejected Celia’s self-defense claim, and she was found guilty of murder and sentenced to
death. While she was in jail, she gave birth to the child, who arrived stillborn. Not long after,
Celia was hanged. Celia’s status—black, enslaved, female—transformed an act of self-defense
into an act of villainy. Randall Kennedy, a law professor at Harvard, writes that “many
jurisdictions made slaves into ‘criminals’ by prohibiting them from pursuing a wide range of
activities that whites were typically free to pursue.” Among these activities were: learning to
read, leaving their masters’ property without a proper pass, engaging in “unbecoming” conduct
in the presence of a white female, assembling to worship outside the supervisory presence of a
white person, neglecting to step out of the way when a white person approached on a
walkway, smoking in public, walking with a cane, making loud noises, or defending themselves
from assaults. Antebellum Virginia had 73 crimes that could garner the death penalty for slaves
and only one for whites. See The Black Family in the Age of Mass Incarceration
The end of enslavement posed an existential crisis for white supremacy, because an open labor
market meant blacks competing with whites for jobs and resources, and—most frightening—
black men competing for the attention of white women. Postbellum Alabama solved this
problem by manufacturing criminals. Blacks who could not find work were labeled vagrants and
sent to jail, where they were leased as labor to the very people who had once enslaved them.
Vagrancy laws were nominally color-blind but, Kennedy writes, “applied principally, if not
exclusively, against Negroes.” Some vagrancy laws were repealed during Reconstruction, but as
late as the Great Depression, cash-strapped authorities in Miami were found rounding up black
“vagrants” and impressing them into sanitation work. See The Black Family in the Age of Mass
The courts have legitimated the common perception of blacks as criminals. Police may use race
as a factor when developing probable cause. Additionally, police and immigration officials often
target individuals of a specific race with policies such as street sweeps, gang profiles and border
stops. Such practices “erase the identities of . . . people as individual human beings and instead
defines them, on the basis of their race, as potential criminals.”21 Such policies are at their core
essentialist because they are impossible to implement without relying on prevalent
stereotypes. See The Constructed Identities of Asian and African Americans: A Story of Two
Races and the Criminal Justice System Sheila A. Bedi∗
Over the last 100 years, litigated cases have overwhelmingly revealed an implicit view of blacks
as inferior, reaffirmed by the limitations imposed, or the tokenism used, to influence the jury
selection process involving black jurors. Over the last 135 years the U.S. Supreme Court has
used its elevated place to legally define the black race as the explicit “other.” “Negroes” were
seen by the Court as “property” (Scott v. Sanford, 1857) or as an “emancipated” race (Strauder
v. West Virginia 1880). They have been called the “inferior race,” as opposed to a “superior
race” (Strauder V. West Virginia, 1880). Their “black color” has been seen as their distinctive
mark of humanity (Ex parte Virginia, 1880; Carter v. Texas, 1900.) They have been named “a
citizen of African race” (Neal v. Delaware, 1881; Bush v. Kentucky, 1883) and of African
“descent” (Woody v. Brush, 1891). They have been looked on as people apart, truly another
race. Equally, the U.S. Supreme Court has defined Mexican-American as “strangers”- “a
separate class, distinct from whites” as a group, “those persons of Mexican descent,” and “a
person with a Mexican or Latin American name” (Hernandez v. Texas, 1954; Casteneda v.
Partida, 1977). The legal edicts offered by the Court have contended that race is the basis of
property (owners v. slaves), of power (inferiority v. superiority), and of ethno-social attributes,
as when the place of origin of ones forbears or their surnames designate another “race.” Race
thereby becomes a way of casting black and Hispanics as outsiders-outside the bounds of rights
to the nation’s bounty (Barrera, 1969; Bonacich, 1972, 1973, 1980; Feagin, 1984). – The U.S.
Supreme Court, the Constitutional Background of Jury Selection, and Racial Representation
With the outbreak of war, thousands of blacks made their way to freedom during the
Revolution. Enslaved persons during these years found their freedom through military service,
petitions for freedom and by those revolutionist who fully embodied the ideal that “every man
is created equal” and manumitted their slaves. At the end of the war over 5,000 enslaved
Africans had fought with the Continental Army and joined the new America as free men, vastly
increasing the number of free black people in the newly formed states. See
Heather Andrea Williams, American Slavery: A Very Short Introduction, Oxford University Press,
The presence of free blacks altered the prevailing racial categories. Previously the color of one’s
skin was associated with slavery, black indicating enslaved and white indicating free. After the
Revolution when tens of thousands of African Americans gained their freedom, either by
volunteering or manumission, racial enslavement appeared inconsistent. Free blacks appeared
to subvert the logic of racially based enslavement Gillmer, Jason, Suing for Freedom: Interracial
Sex, Slave Law, and Racial Identity in the Post-Revolutionary and Antebellum South (January 1,
2004). North Carolina Law Review, Vol. 82, No. 2, January 2004. Available at SSRN:
Similarly, in State v. Soto, a superior court judge in Gloucester County, New Jersey, granted the
defendant’s motion to suppress evidence seized after being stopped on the New Jersey
Turnpike. The court held that the seventeen minority defendants who were African-Americans,
the majority of whom were males, established a case of selective enforcement based on race.
In Soto, the defense conducted a study to determine if law enforcement officers were engaged
in racial profiling. The study revealed that an adult black male was present in 88% of the cases
where the gender of all occupants could be determined and that where gender and age could
be determined, a black male 30 or younger was present in 63 of the cases. Other examples of
racial profiling include an incident involving the Maryland State Police, which settled a lawsuit
following the discovery of an internal memo that encouraged state troopers to target African-
American males driving east on I-68. The profile of the Maryland State Police suggested that
being black plus male and driving on I-68 equaled criminal activity. See Racial Profiling of
African-American Males: Stopped, Searched, andStripped of Constitutional Protection
In the 1660s the price of tobacco declined and the farmers got problems. Only those who had
capital enough to engage in large-scale production could continue to make a profit. Rumors of
poor working conditions reached England, and contributed to keep free, white workers back in
their homeland. In order to provide enough manpower, the colonial legislature passed a law
allowing slavery. King Charles II granted a royal charter in order to establish a company that was
to transport African slaves to North America. See Slavery in the British colonies in North
In any case, another association gradually arose in North America and that was between ‘negro’
and ‘slave’. Early legislation commonly referred to ‘negro and other slaves’ or to ‘negro,
mulatto, and Indian slaves’. Over the years ‘negro’ and ‘black’ both became synonymous with
enslavement. In 1702 an observer wrote that the wealth of Virginia consisted in ‘slaves or
Negroes’. But 1806 Virginia judges ruled that a person who was of a white appearance was to
be presumed free but ‘in the case of a person visibly appearing to be of the slave race, it is
incumbent upon him to make out his freedom.’ In 1819 South Carolina judges stated flatly: ‘The
word “Negroes” has a fixed meaning (slaves). See Africans and Native Americans: The
Language of Race and the Evolution of Red … By Jack D. Forbes
Britain relied on slavery and slave-produced products for whatever wealth it got from British
America and was heavily involved in slavery as the leading trafficker of slaves across the
Atlantic from the mid-17th century until the abolition of the slave trade in 1807. British ships
carried millions of slaves to the Americas, where they changed the demographic makeup of
European-controlled settlements markedly. Slavery was also a highly significant social
institution. It led to the growth of a planter class––the most important and long-lasting elite in
British American and American history. It also was important in developing pernicious ideas of
race that were used by planters to justify their dominion over enslaved people. And, most
importantly, it brought Africans to America. They brought with them their African culture,
which was transformed by exposure to other cultural practices and became a distinctive part of
the British American experience. Finally, slavery was an institution that relied at bottom on
coercion and violence. The application of such coercion met with considerable resistance from
those to whom violence was done. Slavery in British America Trevor Burnard LAST MODIFIED:
29 MAY 2015
Slavery explicitly was a Racial Institution. In every state but Delaware, blacks were presumed at
law to be slaves; proving one was legally white constituted a defense to slavery. The badges and
incidents of slavery the Thirteenth Amendment opposes will overwhelming manifest in racial
forms. The amendment does not prohibit, and even invites, analyses of racial harm. See
The Case for United States Reparations to African Americans by Adrienne D. Davis
In Gibbons, the Chief Justice of New Jersey charged the jury, that the colour of this man was
sufficient evidence that he was a slave.” In upholding the jury’s verdict, the New Jersey Court of
Errors and Appeals also affirmed that the law presumes every man that is black to be a slave.”
The head-notes to the official report of the case confirmed that “In New Jersey, all blacks were
presumed to be slaves until they could prove otherwise. According to the Henry Holt
Encyclopedia of Word and Phrase Origins the word “blacklist” originated with a list England’s
King Charles II made of fifty-eight judges and court officers who sentenced his father, Charles I,
to death in 1649. When Charles II was restored to the throne in 1660, thirteen of these
regicides were put to death and twenty-five sentenced to life imprisonment, while others
escaped. A blacklist (or black list) is a list or register of entities or people who, for one reason or
another, are being denied a particular privilege, service, mobility, access or recognition. As a
verb, to blacklist can mean to deny someone work in a particular field, or to ostracize a person
from a certain social circle.
This figurative sense derived from the literal meaning of A badge as a sign deliberately worn to
indicate position or status. From certain external features, an individuals social position could
be inferred. Thus, in an argument before the Supreme Court in 1843, a lawyer for a slave
seeking freedom through a conditional manumission offered the following observation about
American slavery: Colour in a slave holding state is a badge of slavery. It is not so where slavery
does not exist. Williams v. Ash, 42 U.S. 1, 8 (1843) 2 Being black was evidence of being a slave.
According to one nineteenth century history of English law, the phrase refers to those badges
of slavery which are imposed upon a conquered people. Owen Flint off, The Rise and Progress
of the Laws of England and Wales 139 (1840).
Another instance of something becoming retrospectively black begins in antiquity with the
Greek workd nekromanteia which means divination by the dead. However, by the thirteenth
century it was corrupted to nigromantia, black divination’ (James 1981:23). I would suggest that
it is the historical fact of the crusades that encourages this slippage to take place. This gave rise
to the contemporary phrases ‘black art’ and ‘black magic’.
Another instance of something becoming retrospectively black begins in antiquity with the
Greek workd nekromanteia which means divination by the dead. However, by the thirteenth
century it was corrupted to nigromantia, black divination’ (James 1981:23). I would suggest that
it is the historical fact of the crusades that encourages this slippage to take place. This gave rise
to the contemporary phrases ‘black art’ and ‘black magic’.
Another instance occurs with the son of Edward III, who lived in the fourteenth century. He was
not called the Black Prince until the sixteenth century by Grafton in 1569 (OED: 251) as a way of
signifying his malignancy. And by the seventeenth century the phrase Black Prince had become
even more evil by becoming another name for the Devil. In tracing the pictorial representation
of the devil in west European art, James found that the devil was not regularly coloured black
until the Fourteenth century. By the 1880s it had gained a more sinister meaning,that of ‘a
captive negro or Polynesian on board a slave or pirate ship….hence Blackbirder, man or vessel
engaged in slave traffic. ‘Blackamoor was initially used without ‘depreciatory force (OED), it
meant literally black Moor. But by 1663 it had become a synonym for devil. The citation in the
OED is ‘He’ is dead long since and gone to the blackmores below’. In the seventeenth century it
comes to mean ‘vagabond, loafing, or criminal class of a community, and by the eighteenth
century it has increased its forcefulness to mean ‘One of the idle criminal class, a rough; hence,
a low worthless character addicted to or ready for crime, an poen scoundrel ( A term of utmost
opprobrium)…..pertaining to the dregs of the community; of low, worthless character; brutally
vicours or scurrilous’ (OED).
See Race, Colour and the Processes of Racialization: New Perspectives from Group … By Farhad
The Negro in the New World By Sir Harry Hamilton Johnston states: “When the Portuguese
discovers, urged on by Prince Henry of Portugal, had rounded Cape Bojador, and after reaching
Rio d’Ouro in 1435……” In this Footnotes it says “This is the reason why blackamoor in English,
Morioan in Dutch, Morian in Germa, Moro in Spanish, Portuguese, and Italian and Moriaud in
French were early names for Negroes. “Negro”, a Spanish word, did not come into common use
in England till the nineteenth century. See Why Do Blacks Ignore that Black and Negro Are
Synonymous with Slave