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