New Jersey: The last slave state
The devil is in the details, and the real Jersey Devil is the art of the loophole
Today, I’m going to say bad things about New Jersey, or rather, the state government of New Jersey. Buckle in, it’s a wild ride. Today, I’m going to talk about slavery, fine print, and loopholes. The lesson is a simple one: Reform done right requires close attention to the details.
New Jersey’s gradual emancipation law wasn’t as effective as Pennsylvania’s, to the point that New Jersey ended up becoming one of the last three states with slavery in the United States.
The beginning of the end of slavery
Slavery has been around for a long time in a variety of different forms. The two main sources of slaves in the United States were the international slave trade and the legal doctrine of partus sequitur ventrem. Anyone born to a slave mother was born as a slave.
Slavery by birth began in Virginia in 1662, and the first example of lifetime enslavement was imposed as a criminal punishment in Virginia in 1640. The intercontinental slave trade had been in continuous operation since at least the days of ancient Rome.1
The international slave trade faced some restrictions in the United States beginning with the Revolutionary War. Arguably, the first state to ban slavery was Pennsylvania in 1780.2 Pennsylvania’s gradual emancipation law did not immediately free slaves. Instead, it targeted the ways that Pennsylvania’s slave population could increase: The importation of slaves from elsewhere, the birth of new slaves. The law contained four major elements:
Children born to enslaved mothers would not be slaves, but instead temporarily indentured, explicitly tying their rights to the existing legal framework used for white indentured servants.3
Slaves could not be imported into Pennsylvania.
It created a central registry of all slaves in Pennsylvania.
It eliminated the use of slavery as a punishment.
Enforcement of the law was vigorous, and the burden of proof was placed on slave owners. If a slave owner failed to register their slave or failed to provide the required annual update to the registry, the slave was freed. If a non-Pennsylvanian brought a slave into the state for more than six months, that slave was freed.
While Philadelphia was the temporary capital of the United States, this law was used to liberate slaves belonging to the first Attorney General of the United States, Edmund Randolph of Virginia. In response to this incident, President George Washington rotated his household staff every six months, sending slaves out of Pennsylvania regularly.
Ten years after the passage of Pennsylvania’s law, about 60% of the state’s African-American population was free. By 1800, 95% of the state’s African-American population was free, with fewer than a thousand still enslaved.
Gradual emancipation in New Jersey
Connecticut followed suit in 1784 and New York in 1799. In 1804, New Jersey became the last state to pass a gradual emancipation law. New Jersey’s law said the following:
Children born in New Jersey to enslaved mothers would not be slaves, but instead temporarily indentured in a newly-constructed legal status.4
Those children would have to be registered with the county clerk.
If you are wondering what this means about children born to New Jersey slaves outside of New Jersey, this is a good question. The details of indentured status also mattered: New Jersey courts ruled that the indentured children of slaves could be sold, and New Jersey slave owners sold them to slave owners in southern states on a regular basis. Very few African-Americans were freed under this law; most were sold instead.
The fact that New Jersey did not create and maintain a central statewide registry of slaves with its emancipation law also caused problems. Without the same high burden of proof required to prove legal slave ownership, some free African-Americans in New Jersey were kidnapped and forced into slavery after 1804. County records were not always kept correctly and honestly.
In order to try to limit the abuse of loopholes, New Jersey ended up placing restrictions on the export of slaves from New Jersey in 1818, although sales continued. In 1830, New Jersey’s slave population still numbered in the thousands. In 1846, with a slave population still numbering in the hundreds, an embarrassed New Jersey state legislature passed a new law.
The 1846 law declared that slavery no longer existed in New Jersey and was immediately abolished. However, each of the hundreds of slaves “freed” by this act would be “bound to service to his or her present owner” indefinitely. This was immediate abolition in name only; in truth, it was simply an updated version of gradual emancipation.
The high rate at which New Jersey’s African-Americans were sold to the South during the 1804-1846 period instead of being liberated is visible on a demographic level. From 1800 to 1850, the African-American population of New Jersey increased at an average annual rate of 0.7%. In a similar period of 50 years starting shortly after the beginning of gradual emancipation (1790-1840), the African-American population of Pennsylvania increased by an average annual rate of 3%.
The 1860 election
Many people have said that Abraham Lincoln only won the popular vote in states which had already abolished slavery. This is true. However, Lincoln won a majority of New Jersey’s electoral votes, and New Jersey had not actually abolished slavery yet. How can these three facts be reconciled?
The anti-Lincoln fusion ticket in New Jersey earned 52% of the vote in New Jersey. However, due to organizational failures by anti-Lincoln opponents, only three of the seven fusion anti-Lincoln electors were on all of the fusion ballots across New Jersey. Stephen Douglas received three electoral votes; however, with four designated “fusion” electors and five additional “straight Douglas” electors in competition, Lincoln was able to secure the other four of New Jersey’s electoral votes.5
While Lincoln did not win the presidential election as a whole via spoiler effects, as I discuss in my book, the spoiler effect was how he won electors in New Jersey. This happened in spite of the use of a fusion ticket, which was designed to eliminate spoiler effects.
The 13th Amendment
The 13th Amendment did not free slaves in most of the former Confederacy states, because slaves in those states had already been freed by the terms of the Emancipation Proclamation. All of the states that were under Union military control when the Emancipation Proclamation went into effect banned slavery before the 13th Amendment went into effect.
From a pragmatic perspective, the 13th Amendment freed slaves in only three states: Kentucky, Delaware, and New Jersey. New Jersey recorded sixteen6 “lifetime apprentices” freed by the 13th Amendment. These were also three of the four states which rejected the 13th Amendment during the ratification process; one can only imagine that New Jersey’s remaining slave owners were well-connected.
Slavery itself is old enough that we don’t know how old it is, so this is mostly of a statement about the size of the Romans’ trade network.
The two arguable points: Vermont banned slavery in its first constitution, but hadn’t joined the United States at that point. Massachusetts abolished slavery in one shot rather than engaging in gradual emancipation, starting later but finishing earlier.
This means that eight Douglas electors were in contention for seven seats. The “straight Douglas” dissidents not only broke from the fusion ticket, but also didn’t quite manage to coordinate with each other on which four additional “straight Douglas” electors to print on ballots.
Some sources say eighteen.