Was Brigham Young wrong about the priesthood/temple ban? I’ll ask Dr Paul Reeve & Christopher Rich, and we’ll discuss the showdown between Orson Pratt and Brigham Young over whether blacks are guilty of the Curse of Cain and Curse of Ham. Check out our conversation…
Don’t miss our other conversations with Paul Reeve! https://gospeltangents.com/people/paul-reeve/
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Understanding Curse of Cain
GT: Okay. Well, let’s dive into the 1852 legislative session when An Act in Relation to Service was passed. [There was] a big debate between Orson Pratt and Brigham Young over whether this should be passed. And it’s also where Brigham Young articulates a race-based ban for priesthood. So, I know we’ve talked about this before, Paul, but remind people that didn’t see our first interview from eight years ago, what’s the debate between Orson and Brigham?
Paul: Well, so they’re debating this Act in Relation to Service and Orson Pratt is once again, if it’s not free, it’s slavery. He’s calling it this abominable slavery. He proposes that the bill be rejected outright and gives a really strident anti-slavery speech. But theologically, there’s a mixture of religion and politics in this legislative session. And Brigham Young has created, and will create in a couple of his speeches, a cursed racial identity for people of Black African descent. He will suggest that they are cursed descendants of Cain. Cain killed his brother Abel, Brigham Young says, and because he kills Abel, all of Abel’s descendants, who he presumes to be white people, will need to receive the priesthood before any of Cain’s descendants can be allowed to receive the priesthood, and he presumes them to be people of Black African descent.
GT: Were they going to die out at sometime?
Paul: Well, right. But those are the terms that he creates. Right?
GT: I mean, it’s a strange thing to say, you know? I mean, we’re going back to Adam and Eve, basically. These kids are going to have descendants forever, Black and white, right? So how are all the white people going to get the priesthood before the Black people do?
Paul: Right. And did that finally happen in June of 1978?
GT: So there’s no more descendants of Cain anymore?
Paul: Well, Brigham Young is borrowing from the broader Judeo-Christian tradition, this story, this notion that black skin comes from the Curse of Cain. It’s the mark that God places upon Cain and therefore his descendants. That predates the founding of The Church of Jesus Christ of Latter-day Saints by several hundred years. Then it gets mixed with the curse of Ham/Canaan, which is later, also in the Book of Genesis. Noah is found naked and drunk in his tent. Ham supposedly makes fun of him, and then the, the curse is, servant of servants you will be to Ham’s son Canaan. Right? Servant of servants you will be to other of Noah’s children. And that is overtly stretched and used to justify enslavement of people of Black African descent because the standard interpretation is that descendants of Cain, Ham, Canaan are people of Black African descent. Brigham Young comes into Mormonism with that idea. In 1852, he then gives it theological weight in his faith. Right? So he says that’s justification for barring people of Black African descent from priesthood ordination.
Paul: So he is defining people of Black African descent as inherently guilty, and Orson Pratt will describe them as innocent. Shall we take the innocent African? So, you have two theological visions of who people of Black African descent are. And in 1856, Orson Pratt will also reject Brigham Young’s notion that they are descendants of Cain. He says we have no proof that Africans are descendants of Cain. It’s the only justification Brigham Young ever gives for the racial restriction, and Orson Pratt rejects it outright. So that is the nature of the debate. Orson Pratt is defining them as inherently innocent, and Brigham Young is defining them as guilty. It’s a violation of the Second Article of Faith that Joseph Smith establishes that human beings will be punished for their own sins, not for Adam’s transgression. And yet, Brigham Young holds the supposed descendants of Cain accountable for a murder in which they take no part. And Orson Pratt does not buy that. He argues against multi-generational curses. God may have, in fact, administered curses in the Old Testament. That’s fine. That’s specific to that given time and place. It has nothing to do with what’s happening in 1852 Utah territory. We have no commandment from God to do this. He’s speaking of slavery. Right? And we have no commandment from God to do this. He argues against any notion of a revelation, and he finds it abhorrent that Utah would even, or his fellow lawmakers would consider sanctioning what he considers to be slavery in Utah territory.
GT: Okay. because one of the things I remember, I had an episode titled Becoming a Fanboy of Orson Pratt because I was so impressed. When we talked about this before, he not only advocated banning slavery in Utah, which service/slavery, he was equating the two.
Paul: Right.
GT: But he also advocated for Black voting rights, which just blew my mind.
Paul: Yes.
GT: And so I think he should definitely be lauded for those two stances. But I have to say, after reading your book, I was disappointed to find out that he supported a priesthood ban. So, can you talk about that?
Paul: Yeah. He does.
GT: That was a surprise because I was like, how can you be so anti-slavery, but still accept a priesthood ban on Blacks?
Paul: Right. So in 1853, so a year later, he is publishing, a Latter-day Saint newspaper in New York called The Seer. And in that, he posits an alternate explanation to justify a racial priesthood restriction. He never buys Brigham Young’s justification, because of the reasons that we just articulated. It’s a violation of agency in the Second Article of Faith. Agency must have been at play. And he’ll borrow Book of Abraham language and suggest that perhaps people of Black African descent exercised agency poorly in the premortal realm. And therefore, they are barred from the priesthood in the mortal realm. He uses more circumspect language than Brigham Young does. “If.” He uses very cautious language, if-then language. Right? And “perhaps.” Those are the words that he’s using.
GT: So he’s not saying this definitely happened, but it might have happened.
Paul: He’s suggestive. And remember, Brigham Young is very adamant. Right? Black people are cursed descendants of Cain, he says. I know they are. Right? And I firmly believe that’s in response to a speech that Orson Pratt gave on the 4th of February. Tragically, that speech is not captured. But I think he’s responding to Orson Pratt. Right? Brigham Young is responding to Orson Pratt. We know he’s responding to Orson Pratt’s proposal that Black men be allowed to vote. That’s evident in Brigham Young’s 5th of February speech. But in any case, Brigham Young is very adamant in terms of his position on defining Black people theologically, and Orson Pratt, when he publishes that article in The Seer in 1853, is much more circumspect. And, interestingly, LaJean looked through all of her transcripts. I looked through all Orson Pratt known speeches in the Journal of Discourses. Did he ever return to that position? 1853 is the only time we ever find him in any way trying to substantiate the racial priesthood restriction. We find no evidence of him ever returning to it, no evidence of him ever going back to this explanation of poor choices in the premortal realm. He never defends it again.
GT: So, it’s a one-off.
Paul: It’s a one-off for Orson Pratt, at least as far as we can tell. Will there be some future speech that comes to light? I don’t know. None in the Journal of Discourses, none in any of LaJean’s transcribed speeches ever have Orson Pratt returning to this. I don’t know why he does in 1853, but really, what we have then are the two competing explanations for a racial priesthood restriction that develop out of this debate between Orson Pratt and Brigham Young. And those two competing explanations continue to exist all the way to the 20th century.
GT: Okay.
Paul: Even into the 21st century, I still hear those notions sometimes shared amongst Latter-day Saints. And so, they established the terms of the rationales that justify a racial priesthood restriction.
GT: Okay. So, so the two explanations are curse of Cain/Ham. That’s one. That’s the Brigham Young explanation.
Paul: Correct.
GT: And then the other explanation is they must have done something before they were born.
Paul: Correct.
GT: And so that’s why they’re born Black.
Paul: Yeah.
GT: And so even though Pratt only mentioned this one-time, other people latched on to it. I think John Taylor did. Is that right?
Paul: Well, so it develops across the course of the 19th century. The first person to articulate it, not in relationship to a priesthood restriction, is 1845 Orson Hyde. He says it just in relationship to where does Black skin come from? They must have made poor choices, been less valiant in the war in heaven, or the premortal realm. Right? So, less valiant or evil, or, in some sort of way, agency is at play. They made poor choices in the premortal realm, or in the pre-existence. But Orson Pratt will link that to priesthood. And then you have B.H. Roberts later in the 19th century. You have John Widtsoe in the 20th century who will actually grapple with the two competing explanations. He doesn’t find any substantial rationale for Brigham Young’s explanation. So he says agency has got to be at play. You have Joseph F. Smith at the turn of the 20th century, who will say that’s an idea that circulates. But it’s just an idea of men. It’s not supported. Or is it Joseph Fielding Smith? I think he comes back to it. It’s Joseph Fielding Smith. He comes back to it later in the 20th century and he makes a transition from they are less valiant, or he makes another distinction.
GT: Fence-sitters.
Paul: Fence-sitters. That’s it. Like, either fence-sitters or less valiant. Right? So it continues to have explanatory power well into the 20th century amongst Latter-day Saints as a justification for the racial restriction, even though Orson Pratt, like I said, never returns to it.
Did Brigham Make a Mistake?
GT: So, I know especially with Wilford Woodruff and Official Declaration 1, a prophet won’t lead the Church astray. Is it okay for modern Latter-day Saints to look back at Brigham Young? Because it seems like he’s the first one to say, in 1852, in this territorial legislative session, Blacks are cursed as to the priesthood. Is it okay to say Brigham made a mistake?
Paul: Well, I mean…
GT: You’re going to have to speak for yourself, right? Not the whole Church.
Paul: I don’t go around giving people permission. I’m perfectly okay saying that.
GT: Okay.
Paul: I only speak for myself.
GT: Okay.
Paul: Yes. I mean, that’s one of the lasting legacies of this legislative session. Right? That’s one of the points that we make. Congress outlaws slavery and involuntary servitude in US territories in 1862. So we’ve got a 10-year timespan, in theory, that the Act in Relation to Service could have been enforced. And we complicate that also because we can’t find a firm end in practice. But the priesthood restriction that is first publicly articulated in the legislative session drags on for 130 years roughly.
GT: Right.
Paul: So, yes, Brigham Young is articulating a theological identity for people of Black African descent that is wrong. And the First Presidency and the Quorum of the Twelve Apostles disavow it in 2013 in “Race and the Priesthood” essay. So, yes, I think it’s okay, perfectly okay to say, yes, that’s wrong. And Orson Pratt was correct. Right? Hopefully, it goes without saying in 2024 that people of Black African descent are not cursed descendants of Cain.
GT: Okay.
Paul: Orson Pratt said that in 1856.
GT: Okay.
Paul: So Orson Pratt was correct. There is no evidence. There is no proof is what he said. And he’s absolutely correct.
GT: Okay. But as far as premortal life, Orson Pratt was wrong.
Paul: Right. Right. Right. Those explanations have been disavowed, absolutely, yeah.
GT: Chris, can you weigh in on that topic?
Christopher: I will from a strictly historical standpoint. Just as we were talking about servitude and slavery, this also seems to grow out of debates that Brigham Young was experiencing when he was a young man in New York. New York was a gradual emancipation state. They determined that slavery was wrong, that African Americans should be freed over time. But the question became both how should they be freed? Immediate abolition doesn’t really come out until the 1830s. So, it’s gradual over time. The idea being that, coming out of enslavement, African Americans need to be educated. It will take time to fully integrate them into society. And the same is true with voting rights, for example. So in 1821, there’s a constitutional convention in New York where they’re debating whether or not African Americans should have voting rights. And a lot of the arguments during those debates are they are not ready. They’re not prepared. We need to give them time in order to learn how to be good citizens. And so there are these Republican debates about the ability of now free African Americans to participate in democratic government. And these seem to be the arguments that Brigham Young is latching onto. And he gives them a theological basis with his interpretation of the Curse of Cain, et cetera. Up until that time, people have been using the Curse of Cain, as Paul was saying, to justify slavery. Brigham Young reinterprets it to be about hierarchy both within secular government and within church government. That seems to be what he’s doing is he’s taking these arguments that were ongoing from the time that he was young, I mean, through the 15th Amendment, about the place of African Americans in society. And then, starting in 1852, he describes it in this theological manner. So we’re seeing, just like the debates on servitude and slavery, we’re seeing ongoing debates about the place of African Americans in the United States ongoing in the Utah legislature, but with this theological twist to them.
GT: Okay.
Paul: And, interestingly, that 5th of February speech…
GT: 1852.
Paul: 1852, he’s saying, in response to Orson Pratt proposing that Black men be allowed to vote in Utah territory, he’s saying we just as well give mules the right to vote as Negroes and Indians. He expands that beyond Native Americans and African Americans in terms of people he thinks are not prepared and capable of voting: Pacific Islanders, people from Asia, Mexicans. He includes all of those as people who should not be allowed to vote in Utah territory. They don’t have the sensibility enough to do so. But only people of Black African descent is he excluding from the priesthood. And so, in talking about those other groups who are gathering to Utah territory, he makes a comparison to jackasses. Right? They don’t have enough sensibility to vote as jackasses. They’re okay for the priesthood, however.
GT: Oh, really?
Paul: Only people of Black African descent are barred from the priesthood. All of those groups should not be allowed to vote, only white people should be allowed to vote, or Euro-Americans should be allowed to vote. But he’s only barring people of Black African descent from the priesthood.
GT: That’s a strange rationale, I’ve got to say.
Did Utah Legalize Slavery in 1852?
GT: Can we talk a little bit about—so 1852. Is it fair to say that Utah legalized slavery in 1852? Because that’s what I’ve heard. Would you say that’s a fair statement?
Christopher: No. At the very least, it’s complicated. From the perspective of the legislators, they would say no. From the perspective of Brigham Young and the majority of the legislators, they would say we have legalized servitude. And they would have argued this is, in many ways, different from chattel slavery and was intended to be so. And from a purely legal standpoint, that argument has weight from the perspective of 1852. Now, Orson Pratt disagreed.
GT: And I bet all the slaves disagreed, too.
Christopher: Well, and that was my next point. From the perspective of those people who were actually enslaved, while we do find at least one instance, and probably more, where the law was used to defend African Americans, where it did make a difference, for most enslaved African Americans, on a day-to-day basis, they probably would have experienced service much the same as they had experienced slavery in the past. So, it is a question of perspective. And that’s one of the things that we try and point out in the book is that it depends upon your point of view. We felt it was important to try and be objective and tell the story from as many points of view as we possibly could. And so ultimately, if you’re asking from the perspective of the legislature, they would have said no.
GT: Okay. It’s a step above slavery, essentially.
Christopher: Yeah, and as we’re arguing, that this is ultimately a form of gradual emancipation, that this is a step towards freedom. And Brigham Young actually insists on language in the law that said—within the statute, the relationship between a servant and a master is referred to as a contract. It’s referred to contractually for both African Americans and for European immigrants. In the original version of the law, if the contract was broken, if a master abused his servant in some way, and that contract was broken, the law said that the servant should go to a new master. Brigham Young says, no. If this contract is broken, they should be free “same as white folks.” So, he views this law, in his own mind, as a way of moving African Americans towards freedom while they remain in the state of servitude, which, probably, he would have likened to apprenticeship, which was something that he had personally experienced. We will admit. There are real differences between those things, particularly in the length of service. But that’s probably how he viewed this relationship.
GT: Hmm.
Paul: And so, in terms of the point that Chris is making in terms of perspective. Right? There’s a chapter in the book called Implications. Right? And how does this play out in the lives of those who are enslaved? And from the perspective of the enslavers? So Southern enslavers don’t seem to be satisfied. Right? They think some of their rights have been eroded by this law. Right? And they are asserting their ability to hold their enslaved people in Utah territory, when they register them, they will use the language of, “for life.” Right? So we’re acknowledging that someone who arrives in Utah territory enslaved could very well die enslaved according to the law that is passed but granted some rights that elevate them above the condition of mere property. So your question is a loaded question. It just all depends. Are we talking about chattel slavery? Right? Then we are saying that it doesn’t equate to chattel slavery that is enforced in the South. It also is not freedom. And from the perspective of those who are enslaved, we make the point in, in the book that they don’t wake up. We don’t believe that they wake up the day after this law is passed and say, “Oh, my life is so much better now that I have been legally defined as a servant than it was yesterday.” We have one quote from a formerly enslaved person, Alex Bankhead, who says, our condition in Utah territory wasn’t much different than in the South in terms of their labor. Right? That’s what’s missing are written pieces of evidence from the perspective of those who are enslaved.
GT: Because they were illiterate.
Paul: Right. Aa lot of them who are arriving from the South [were illiterate,] yeah. Absolutely. So there are few pieces of evidence from their perspective, but we try to understand the bill from their perspective. And we share a couple of examples. One example is Tom, who is brought to Utah territory by his enslaver Hayden Wells Church. He arrives in the fall of 1852, the same year that this law is passed. Did he grant his consent? Is his enslaver aware of this law that’s even been passed. Right? And is there any indication over his 10-year lifespan in Utah territory that this law comes into force in any way in his life? And we found no indication that there was. We don’t find him being registered as a servant as required by the law in any way that his enslaver ran afoul of the law, and so it provides protection for Tom. And he dies in Utah territory just a few months before Congress would outlaw slavery in Utah territory. So those 10 years when this law is enforced, we don’t find it, providing anything necessarily for him. Had his enslaver run afoul of the law, then it could have provided some protection to him. He ends up being transferred to his bishop, Abraham Smoot, and yet he’s relying upon Congress, not his Latter-day Saint bishop, to free him. Right? But Chris tells the story of another enslaved man, who the law does have an impact on. Right? So we try to understand how it will play out in practice and fully acknowledge, from the perspective of those who are brought to Utah territory enslaved, they can die enslaved in the territory, and really, likely, little difference in their lives, if they’re even aware of the law at all. Right? We don’t have any evidence of anyone going in and educating them, hey, this law’s been passed, and it’s granting you some rights. And if your enslaver tries to sell you to someone else, you can actually use your consent to reject that to a probate judge. Right? Or if your enslaver tries to take you out of the territory against your will, you have rights that will protect your ability to remain in the territory. Right?
GT: They didn’t have those workplace laws where they have to be posted on the wall.
Paul: Right. Right. Right. So we fully acknowledge all of those stipulations. Right? From the perspective of the law, not equal to chattel slavery, but from the perspective of the enslaved, not much difference.
GT: Yeah, that’s terrible. So I know another thing, In your book you had mentioned not only An Act in Relation to Service, but there was another act in relation to Indigenous peoples.
Paul: So it’s An Act for the Further Relief of Indian Slaves and Prisoners.
GT: Okay. And because I know you were saying you have to look at both of these laws to look at how unfree labor functioned in Utah territory.
Paul: Right.
GT: Is there anything that we need to add about that other act, for prisoners and that sort of thing?
Paul: Yeah, well, I, I think we should just simply stipulate that there is a 20-year limit that you can indenture a Native American in Utah territory. So there’s no limit. You could hold an African American for life. Right? And like I said, we found a few registrations where the enslavers are following the law and registering their enslaved people. And they will assert their ability to hold them for life. But there’s a 20-year time limit on Native American indentures. And those indentures also use the language of apprenticeship. So they’re supposed to be apprenticed to a master who teaches them some vocation, some skill so that when, up to 20 years, that’s the longest you can hold them. One of the indentures we found was for 10 years. Right? When that’s over, they’re supposed to come out of their indentured servitude with a skillset that should allow them to enter into and function in society and be a contributing member of society. That’s the ideal behind it. Right? We, we explore a spectrum of situations for Native American indentured children that we can find. Right? And it varies from person to person. Brian Cannon, we rely upon some of his stats. He’s tried to trace a hundred or so of these across time. And so we rely upon some of his stats to say what happens in a variety of situations and then drop the reader into several scenarios. It varies from person to person.
GT: Was this typically for young children? I mean, we talked about the three-year-old little Indian girl. So the idea was, I get a three-year-old. Indenture, can limit it to 20 years. I’ve got to release her at age 23, essentially, and she’s got to have some sort a skill. But you wouldn’t get an older, I mean, because the other thought is, well, you have European immigrants that are coming, and they’re probably, I mean, they, I don’t know how old they were, probably 20 or 30 years old. Could they hold them for 20 more years as well?
Paul: No. Only until their debt is paid off. And the European migrants are included in the Act in Relation to Service.
GT: Okay.
Paul: They’re not included in An Act for the Further Relief of Indian Slaves and Prisoners. So the 20-year limit applies to Native Americans.
GT: Only.
Paul: Only, yeah.
GT: And so, do we know how long a European immigrant would take to pay off the debt?
Christopher: There are a lot of things, as we have studied this, that are very ambiguous, both in An Act in Relation to Service and the Indian indenture bill and perhaps most particularly in terms of European immigrants. The law stated that they could be held in a form of servitude until the debt was repaid. But it was not very clear. There was no maximum term that was associated with it. Basically, under the law, they would have to make that determination with a judge. So, in traditional indentured servitude, you normally were capped at four to seven years of servitude when the immigrant came to America. We have not actually found evidence that they were actually held in this form of servitude. It seems possible. It seems, at least for the Perpetual Emigrating Fund, that they would perform work on the public works in order to try and pay down the debt. So, we know that that happened in some cases. We don’t know if they were actually held in indentured servitude as the law stated that they could be. So, it’s possible that the legislature created this law and that it was never utilized in that way. We just don’t know for sure.
GT: Okay.
Paul: We don’t, we didn’t find any evidence of these European immigrants, , registering before a probate judge like
GT: You found none?
Paul: For Europeans, right. This is the holy grail of this book. Right? There is a probate register of servants, a book that is described in the registrations we did find. And the registrations that we found for African American enslaved people. It would say “as entered into probate register of servants,” indicating that there’s a book where these registrations are being kept. The LDS Church History Library doesn’t have it. The State Archives do not have it. The county archives do not have it. No one knows what happened to this. It’s mentioned in the registrations. We would love to see it. Does it include the Native [Americans]?
GT: If you can find it, anybody, [Paul would love to see it.]
Paul: Does it include the Native American registrations? We presume that it does. Right? Like this is the book where all of these registrations are entered. Presumably, it could include European immigrants if that, in fact, is taking place. But we didn’t find any of the probate registrations like we found for some African Americans.
GT: Okay. Very good.
Dred Scott Decision & Emancipation
GT: So, as we look at this, it sounds like 1852 was a big year as far as Act in Relation to Service, as well as the, I keep saying “prisoners and Indians” act, whatever it’s called.
Paul: Native American indenture bill is the shorthand language we use in the book, yeah.
GT: Thank you. And then there was a Constitutional Convention in 1856. And then of course, it’s not the Emancipation Proclamation. It’s a different law. Is there anything? Because I want to dive into that next, but is there anything in between 1852-1862 legislatively or legally that is important?
Christopher: Well, what’s interesting to see, or not see, is how the Latter-day Saints respond to the Dred Scott decision.
GT: Oh, yes. Tell us what that is, because it’s one of those things everybody’s heard of the Dred Scott decision. But I’m fuzzy. I don’t know what it’s really about.
Christopher: So, there’s, basically what has happened is an enslaved African American man has been taken by his master and lived for a certain period of time in a free state. He argues that, as a result of that, he should be freed. And ultimately, this case makes its way to the Supreme Court. And there’s a lot of things that come out of it about the ability of African Americans to be citizens of the United States, for example. It’s one of those decisions that they always teach in law schools, one of the 10 worst decisions ever made by the Supreme Court. But, for the purposes of our book, one of the most important things it says is that neither a territorial legislature, nor even the US Congress, can bar slavery in a US territory prior to a territory becoming a state. And what that does, in the big picture, is the Missouri Compromise in 1820 says that in the Louisiana Purchase, you can’t have slavery north of 36 degrees 30, which was then the southern border of Missouri. So it was basically saying this huge amount of territory cannot have slavery, whereas the land south of it can be open to slavery. This starts to look strange in the Compromise of 1850, which makes Utah territory where they use popular sovereignty.
GT: Which is above…
Christopher: Which is above this line. So people seem to be okay with that. It really causes problems in the 1854 Kansas-Nebraska Act, which essentially repeals the Missouri Compromise line. Then, in the Dred Scott decision, the Chief Justice says that the Missouri Compromise was unconstitutional to begin with.
GT: Oh, this is another case where they repealed their own Constitutional [decision.][1]
Christopher: So, the question is, well, how does that work in Utah? They have already passed An Act in Relation to Service, which, as we have argued, did not legalize chattel slavery. Well, the Supreme Court is essentially saying through the Dred Scott decision, you have to recognize chattel slavery. Now, there’s a lot of argument about this. Senator Stephen Douglas creates something called the Freeport Doctrine, which says if you don’t create laws to protect slavery, you’re essentially keeping slavery out of your territory. We have no evidence that anything happens in Utah territory after the Dred Scott decision.
GT: And that’s in 1850?
Christopher: That’s in 1857.
GT: ‘57. Okay.
Christopher: So now, partly, the Utah War is coming. The Latter-day Saints have other things to worry about. We do know that they know about the Dred Scott decision. It was put into the Deseret News, for example. But no evidence that that changes the way that Latter-day Saints deal with slavery and servitude. They still continue to go forward with An Act in Relation to Service.
GT: But that was before 1850.
Christopher: That was in 1852.
GT: Okay.
Christopher: That they enacted the law.
GT: So they just continued the law as if nothing happened.
Christopher: They just keep going with that as if nothing had changed. Brigham Young says, on several occasions, Utah will be a free state when it enters the union. So, it looks as if, for the most part, they just ignore the Dred Scott decision and continue to go forward using An Act in Relation to Service. So essentially, it seems that the basic rule that Brigham Young is laying down: Servitude, good; slavery, bad. And he’s not always clear. Some of his statements are ambiguous in that regard, and we have a couple in here where he seems to be supportive of slavery in some statements. But in other statements, he’s very much against slavery. And he makes a bright-line distinction between servitude and slavery and says the one is acceptable, the other is not. So beyond that, those are the main things that happened in that time period.
GT: Okay. So ‘52, ‘56, ‘57 with the Dred Scott decision, 1862, Paul, tell us what happened. And I keep wanting to say the Emancipation Proclamation. I know that’s not it.
Paul: Yeah.
GT: What did they call the law that freed slaves in the federal territories?
Paul: I think it’s An Act in Relation to Freedom
GT: oh really?
Paul: If I remember right, but your listeners can read the book and find out for sure.
Paul: I believe that’s it. So remember, the Republican Party’s first presidential platform in 1856.
GT: Oh, yes. We have to talk about that.
Paul: Yeah, the Republican Party says, when it runs its first presidential candidate. Right? We have the right and imperative duty to prohibit in the territories the twin relics of barbarism, slavery and polygamy. I have that memorized. I teach Utah history. Right? That’s their founding plank.
GT: Right.
Paul: The Republicans believe that they have the power, the right, to prohibit in the territories. No one’s talking about slavery in the states where it exists. Remember that’s a states’ rights issue. That’s part of politics in the 1850s United States. Right? But the Republicans say territories are different, and obviously they are. Right? They’re controlled by federal power. And therefore, we can prohibit in the territories slavery and polygamy. When do politicians ever keep their word? They did it in 1862. Within weeks of each other, they pass a law prohibiting slavery in the territories and polygamy in the territories. So, your listeners are probably familiar with the fact that the first anti-polygamy bill is passed in 1862.
GT: The Edmunds Act.
Paul: No, the Morrill Act.
GT: Oh, the Morrill Act. Sorry. Edmunds is later.
Paul: Morrill Act, yes. Yeah, Edmunds is later. 1862, within weeks Abraham Lincoln also signs into law this Act in Relation to Freedom that will criminalize slavery and involuntary servitude in all US territories, not in the states. It’s not the Emancipation Proclamation, it’s not the 13th Amendment. Most people aren’t familiar that there’s something that precedes that, that the Republicans actually kept their 1856 pledge and passed this law prohibiting slavery and involuntary servitude in the territories. So that would have applied to Utah. Bernhisel, who is Utah’s territorial delegate, is aware of this law. And he writes a letter to Brigham Young telling him, hey, this law is passed, and it’s just waiting the signature of Abraham Lincoln. And Lincoln signs it, I believe, June 20th, if I remember right, 1862.
GT: Oh. Well, that’s really close to June 19th.
Paul: It is. Right. So that would have been the legal end to [slavery in Utah.]
GT: So, was it immediate? Because I thought it waited until January before it was enacted.
Paul: No.
GT: It was immediate?
Paul: No, that’s the Emancipation Proclamation.
GT: Okay. That’s why I was confused.
Paul: Emancipation Proclamation is passed in September, and then it goes into effect January 1st, but only in states that are in rebellion against the Union.
GT: 1865, right?
Paul: No, 1863.
GT: Three, okay.
Paul: 1863. The 13th Amendment is 1865.
GT: Okay.
Paul: Yeah. So, this one only applies to the territories.
GT: Okay.
Paul: And it would have gone into effect immediately. So, Bernhisel makes Brigham Young aware. It’s just awaiting the president’s signature. The president does sign it. And then in July, the Deseret News publishes notice that the president has signed this law.
GT: But I noticed you said it was buried on page four with little fanfare.
Paul: Page four, tucked into a column just simply called “From Washington.” Right? No banner headlines. No, “Yay! Slavery has been abolished in Utah territory.” It’s just in the middle of a column, just one sentence. The president has signed this law that bars slavery in the territories. Right. So is anyone making the enslavers aware?
GT: Right.
Paul: Has anyone told the enslaved? And do they even think that this applies to the law that they’ve passed? Those are all open questions.
GT: Oh, you’re talking about the Act in Relation to Service.
Paul: The Act in Relation to Service. Do they think that it even applies? Because if they’re like Brigham Young, he’s saying this is not involuntary servitude, and this is not chattel slavery.
GT: Oh, because they’ve “consented.”
Paul: Right. Right. Those are open questions. Right? Those are all open questions. So legally, 1862 would have been the end of slavery in Utah territory. In practice?
GT: Did anybody know?
Paul: Did they know? Right? Were enslaved people freed in 1862? Did they have to wait until the 13th Amendment in 1865? The Emancipation Proclamation wouldn’t have applied to them. So, did they have to wait until the 13th Amendment in 1865? Those are all open questions. We don’t find any enslaved people telling us when they found out about it. Alex Bankhead, once again, says, yeah, when we found out, we celebrated that we were free. Right? He doesn’t recall a timeline, doesn’t recall a date, anything like that. He just says enslaved people were thrilled when we found out we were freed. So we don’t know if enslavers were aware. Were the enslaved aware? How did this play out in practice? And that’s the open question. So the concluding chapter is called Utah’s Juneteenth. And we have a firm date for its legal end, but in practice it’s left open to question.
GT: I mean, do you have any sense? We know that the notice was buried in page four. Who knows who wrote it? Was the act you just said, or the Emancipation Proclamation probably was promoted a lot more? Do you have a sense for those other two acts, if they had more publicity in Utah?
Paul: I don’t know about the Emancipation Proclamation, but remember, that only applied to states in rebellion, and Utah wasn’t in rebellion, and it was a territory.
GT: Okay.
Paul: So you’d have to go to the 13th Amendment, 1865.
GT: Okay.
Paul: Yeah. And I don’t know how those were announced in Utah newspapers.
Christopher: We do know that, by 1866, An Act in Relation to Service no longer appears in territorial laws.
GT: Okay.
Paul: Did it appear up until then?
Christopher: It did. So there was a compilation of laws, and they put it together every five years or so. I can’t remember the exact interval in between it.
GT: Okay.
Christopher: But they did a new compilation of territorial laws in 1866. An Act in Relation to Service does not appear in there. So, as Paul was saying, there is a lot of open questions about how they viewed this congressional statute. They may have interpreted it to mean it didn’t actually apply to An Act in Relation to Service. This was, in addition to the slavery and servitude question, there were major arguments in legislatures and in courthouses about what constituted voluntary servitude versus involuntary servitude. And that actually continues well past the Civil War. There’s a lot of disagreement about what is the nature of consent? And it’s very easy for us now to look back and say, how could an enslaved person possibly consent? That makes a lot of sense to us. At the time, this was a major question. What is required to make consent real? Can you ever take away somebody’s ability to consent? And a lot of people essentially answered no. As long as somebody is not insane, they can make a free choice, even if they’re enslaved.
GT: Even if they’re three years old.
Christopher: Well, even at the time, they didn’t necessarily think a minor could consent. But anyway. , but that remained a serious question. So sometime, presumably, between 1862 and 1866, somebody made the determination something applies to An Act in Relation to Service, and surprisingly, we can’t find anywhere where the legislature debates the question, where they repeal it or anything else. It just, it’s no longer there.
GT: Just disappears.
Paul: But interestingly, so in that 1866 compilation, the Act for the Further Relief of Indian Slaves and Prisoners is still there.
GT: Oh.
Paul: So, they didn’t think that the involuntary servitude applied to that Native American indenture bill because it’s still in the books.
GT: Okay. So Native Americans can still be indentured.
Paul: Right. Well, right. Again, open questions in terms of how long that lasts. It disappears by the 1876 compilation. So, a decade later, it’s no longer included.
GT: And these are published every five years, you think?
Paul: I can’t recall precisely.
GT: Roughly?
Paul: Yeah.
GT: Okay.
Paul: But we know that other scholars have documented at least 400, roughly 400, Native American children in Latter-day Saint homes. So that even if that law disappears, it’s still taking place just according to custom. Right?
GT: Okay.
Paul: And that’s up through the turn of the 20th century.
GT: Oh, wow.
Paul: Yeah. So, it disappears from the legal compilation by 1876, but it’s still in the 1866 compilation.
GT: So, we really don’t know, boots on the ground, how slaves or even indentured servants knew about this between 1862 and 1866, right?
Paul: Right. Correct. Yeah. That’s the open question. That’s the point we make in the last chapter is in practice, how did they find out? And we don’t know. We’ve found no evidence to determine one way or the other. Legally they would’ve been freed in 1862. At the earliest, yeah.
GT: Okay. If they knew about it. If they knew about it. I don’t know that people were running around telling them. Not like Paul Revere or anything.
Paul: Right. Right. And remember, that’s why we have Juneteenth. Right? It’s Galveston, Texas, a couple of months after the end of the Civil War, before they find out. Right? June 19th, they find enslaved people. But it takes federal troops, and then the arrival of the Freedmen’s Bureau to actually enforce it, right?
GT: This is in 1865. Right? Or 1866?
Paul: Yeah, 1865.
GT: Right. Because the war ends in April?
Paul: April. And it’s not until June that word arrives in Texas, right? Galveston, Texas, June 19th.So that becomes Juneteenth for when they find out about their freedom. So that’s a couple of months after the war. And then it also takes people on the ground, federal troops on the ground, as well as the Freedmen’s Bureau that comes in to actually help them achieve the freedom that they have been granted. Right? What are your economic opportunities? Some of them end up working back on their plantations, because what are their other options. right? And their former enslavers are promising them compensation, but some of them later say I wasn’t paid anything. Right? They’re doing extra work to earn money on their side, so they can get enough money to go elsewhere, right? So
GT: “40 acres and a mule.” Right?[2]
Paul: Some of them end up working as sharecroppers back on the same plantation that they worked before. Right? So there are a variety of ways that they’re kept close. And then the Black Codes start being written to keep them close to their former plantations. So, it’s an open question for Utah territory in terms of just how do they know and when do they know?
Christopher: These questions also play out in places like New Mexico. So in New Mexico, they had legalized something called peonage, which is a form of debt servitude, which you could, somebody goes into debt, and then you can hold them in service until they ultimately pay off the debt. In practice, it’s almost impossible to pay off that debt. So it ends up being a form of perpetual servitude. There are arguments there for years about whether this is a form of voluntary servitude or involuntary servitude. And it’s not until 1867 Congress steps in and finally says, we don’t care whether it’s voluntary or not. And they passed an anti-peonage bill that, that illegalizes forms of involuntary and voluntary servitude. And so we tend to think of these things in easy categories.
GT: Yeah.
Christopher: Slavery exists. Now it doesn’t exist. And in fact, it’s very complicated and very nuanced.
GT: That’s what historians always say. {chuckles}
Christopher: But it’s true. And that’s one of the things we try to do with the book is just to show how complicated it really is. We like easy answers. That’s fine.
GT: Historians don’t.
Christopher: I don’t think this has easy answers in it. Yeah, it’s messy.
Paul: So that’s one of the takeaways, right? It’s messy, and it’s difficult to ferret out over time what it meant in the minds of the legislators and how it played out in practice for the Native American and African American enslaved.
GT: Yeah. Yeah.
Paul: And we try to answer both of those questions and openly acknowledge we do so imperfectly.
[1] I was thinking of the 2022 Dobbs v. Jackson case which overturned the legalization of the 1973 Roe V Wade decision that legalized abortion in the United States.
[2] This was not for the slaves. Forty acres and a mule refers to a key part of Special Field Orders, No. 15 (series 1865), a wartime order proclaimed by Union General William Tecumseh Sherman on January 16, 1865, during the American Civil War, to allot land to some freed families, in plots of land no larger than 40 acres. Sherman later ordered the army to lend mules for the agrarian reform effort. For more information, see https://en.wikipedia.org/wiki/Forty_acres_and_a_mule.
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