Tucked between an early wrongful death statute titled “Negligence” and an article governing “Notaries Public,” sits Article 66 of the Maryland Code of 1860. Titled “Negroes,” Article 66 lays out the laws governing black life in the state of Maryland on the eve of the American Civil War across approximately 20 pages.
It is an example of one American state’s most fully formed corpus of law on the Black body. It is also an example of the American legal tradition of sanctioning and incentivizing the killing of black men by white citizens and law enforcement, a legacy reverberating in the recent murders of Ahmaud Arbery and George Floyd.
At the core of Article 66 is the impossibility of Black personhood, and this impossibility is achieved, in large part, by establishing a system of White control over the Black body. The article begins with the pronouncement that “Negroes have been held in slavery” in Maryland from its earliest settlement, and that “every owner of such negro is entitled to his service and labor for the life of such negro.” (Article 66, sec. 1).
This makes clear that there is no distinction between slave and Black person (“negro”), and that the power of Whites over Black bodies is perpetual. Later in the document (sec. 42), Article 66 prohibits the freeing of slaves by deed or last will and testament, meaning slaves could not be freed upon the death of their owner. This helped preserve the legal identity of the slave as property rather than person.
It is clear from Article 66 that this legal identity imposed on the Black body was enforced by conscripting White citizens into its enforcement. For example, section 47 required “All
sheriffs and constables,” who then would have been White, to arrest any free Black person in the State from outside of Maryland, who were not allowed to enter the state (sec. 44).
But Article 66 also extended that same power to “all other [White] persons” who were also “authorized to arrest any such free negro” (sec. 47). White persons were not only authorized to arrest any free Black person from outside the state, they were entitled to half the $500 fine (in 1860) in the instance they arrested a free Black person for illegally entering Maryland a second time (sec. 44).
Thus, White persons were not only endowed with absolute authority over the bodies of “free” Black persons from outside Maryland, they were economically incentivized to exercise that authority and make White power over the Black body real. This economic incentivizing of the exercise of White power over the Black body is found throughout Article 66. (E.g., sec. 9, 46, 67-68, 70, 73).
Article 66 also encouraged White violence (read: use of force) against Black persons. For example, sec. 72 of Article 66 prohibited free Blacks from owning dogs without a permit, and the permit had to be renewed annually. The same section also authorizes “any person [to] kill any dog kept contrary to this section.”
In other words, any White person, upon the expiration of a Black person’s dog permit, had the legal right to kill that dog solely on that account. This is nothing other than the
codification of an act of wanton cruelty against Black persons and families.
The greatest incitement to violence, however, rests in sections 3-11. Section 3 states that, “Any person may arrest any runaway negro, and carry him before a judge or justice.” Further, anyone attempting to do so was granted immunity for any use of force employed in the attempt:
“If any runaway slave shall resist the person who attempts to arrest him, and such slave happens to be slain for refusing to surrender himself, such killing shall be deemed
justifiable; and any slave so killed shall be paid for by the State.” (sec. 11).
No other provision of Article 66 better contextualizes the rage currently being felt over the deaths of Black men at the hands of the State and their agents, many often White. How often has “resisting arrest” been used as a justification to murder a Black person? Here is its provenance in American law.
How often have we heard that the killing of a human being was justifiable because she resisted arrest? Here is its provenance in American law. And how often have we watched the state pay out a civil settlement to the family of slain innocents while their police officer murderers bear no consequence for the killing? Here is its provenance in American law.
It is important to remember, however, that as much as Article 66 is a catalog of White power and cruelty, it is also a catalog of the ways Black life continued despite White attempts to control the Black body.
They show that Black persons, despite the threat to their safety, continued to live their lives, working on ships they were not allowed to be on (sec. 13, 67-68), hiring themselves out to work when they had no legal contracting rights, they kept pets and participated in American gun culture (sec. 72-73), opened businesses (sec. 74-75), negotiated labor contracts (sec. 82), founded and administered churches (sec. 58), held secret political organizing meetings (sec. 61), and published and distributed abolitionist and other literature (sec. 66).
Though hardly an exhaustive picture of Black life on the eve of the American Civil War, Article 66 is thus additionally a reminder that the simple act of living has always also been an act of political and legal resistance for Black Americans.
That is still a reality today, and the legal provenance of this terrible fact lies in statutes like Article 66 of the Maryland Code of 1860, whose promise of absolute White power over Black bodies still echoes in the minds of White Georgians who think they have the right to confront and kill a young Black man jogging down their street, or in the minds of police officers who think it OK to asphyxiate a human being for over eight minutes on the ground that he was “resisting arrest.”
Black life continues to be a mode of resistance to power which agents of the state, and even White citizens, may fatally confront. This must cease; and it is high past time that Black life should also have to operate as inherent resistance.
We would do well to evaluate the way our legal and other history continues to impose this awful reality on us, and do even better to act to curtail the application of state power to human life in general.
— ROBERTO E. ALEJANDRO
The writer is a civil rights lawyer, religion scholar and the author of “The Crucifixion and Resurrection of Freddie Gray” (Lexington/Fortress Academic).