Presumably, they must have possessed the status of Eved Kena'ani. The Mishnah Berurah (OC 304:26) cites the Maharshdam and the Mahari ben Lev (mentioned in my reply to Menachem Weimann) that where the law is that one may not buy an Eved, they do not have the status of an Eved. However, the Mishnah Berurah then cites other Poskim who disagree and maintain that even nowadays there is a status of Eved Kena'ani. According to this, in the southern states at that time, they certainly would have been considered Avadim.

I will try, bs'd, in a further reply to outline the Halachah concerning the status of their descendants. Here I will discuss the status of the descendants of the slaves that belonged to Jews before the Civil War.

1) The Mishnah in Kidushin (69a) is very important to our discussion. Rebbi Tarfon states that there is a way that Mamzerim can prevent their blemish from being passed to their descendants. If the Mamzer marries a Shifchah Kena'anis, the child of that union have the status of an Eved. The child is not a Mamzer because the child is not Jewish; the Mishnah (Kidushin 66b) states that if a Jewish man and a Shifchah Kena'anis have a child, the child's status follows that of the mother (namely, the child is not Jewish, and the child is an Eved). If the child of this union is then set free, he becomes a kosher Jew. In other words, the Mamzer-aspect of his father disappears because the mother is not a Mamzer, and the Shifchah-aspect of his father disappears once the child is set free.

2) Accordingly, there is a way to purify Mamzerim (or at least subsequent generations). Therefore, if a Mamzer in the United States before the Civil War would have thought of this idea of how to make his descendants kosher, he could have married a Shifchah and then set the child free, and the child would then have been a kosher Jew. (I do not know if anyone actually did this.)

3) Alternatively, if the southern master would have decided to set an Eved free and immerse him in the Mikveh (see Yevamos 47b-48a), the Eved would have become a full Jew. This is assuming that he had been owned by a Torah-observant master, in which case he does not need to accept the Mitzvos upon himself when he is set free because he already accepted the Mitzvos when he became an Eved Kena'ani.

I have so far dealt with only some of the possible scenarios, and no doubt there are other possibilities as well.

Kol Tuv,

Dovid Bloom

Sam, thank you for your interesting and very important comments.

1) I think a point more basic than if the descendants require a Get Shichrur is whether it is possible that some of these Avadim became Jewish in the first place. I found that the Atzmos Yosef (1540-1602, Salonika) on Kidushin 69a discusses the Mishnah there that says that if a Mamzer marries a Shifchah, this purifies his offspring. He writes that the Shifchah whom the Chachamim permitted the Mamzer to marry is a Shifchah who accepted upon herself the Mitzvos of the Torah because otherwise she would be considered a total Nochri. She would be required to immerse in the Mikvah for this purpose. The Atzmos Yosef writes that only one in a thousand thinks of immersing his Shifchah in the Mikvah with the intention of making her a Jewish Eved.

2) So my question is: Is it possible that there were families in the southern states who required their Avadim to keep Shabbos and Kosher?

3) If there were, then we may note that Shmuel maintains (Gitin 38a) that if one relinqishes possession of one's Eved, he goes free and does not require a Get Shichrur. It is true that the Halachah does not follow Shmuel, but after several generations it is possible that in certain cases a Get Shichrur might not be required. This would need further research.

(By the way, I saw a very interesting essay in the Journal of Halachah and Contemporary Society (Fall 1994) about "The Mamzer and the Shifchah," by Rabbi David Katz of Baltimore.)

4) I have a Chidush which might help us solve the problem of the Get Shichrur. Let us assume that there may have been some Avadim who belonged to observant families in America before the Civil War; they immersed in the Mikvah and became genuine observant, Avadim Kena'anim.

The Shulchan Aruch (Yoreh Deah 267:64) rules according to Ravina in Gitin 40a that if someone is Mafkir his Eved he goes free but needs a Get Shichrur. If he died before giving the Get Shichrur his heirs must write the Get Shichrur.

So when the Emancipation Proclamation was issued, this was equivalent to Hefker, because no one was able any longer to own an Eved. However, the Get Shichrur is still needed because the idea of the Get Shichrur is to release the prohibition that still applies on the Eved from marrying a Jewess even though there is no longer any financial claim on him. The problem is, what is the Din of this Eved if no one issued him a Get Shichrur?

5) Now we look at the Rosh (Gitin 4:29) who writes (according to one answer) that the requirement for a Get Shichrur is only mid'Rabanan. Mid'Oraisa, the death of the master releases any prohibiton on the Eved marrying a Jewess but not everyone is aware of this fact and they may gossip that he is still an Eved, so the Rabanan instituted the writing of a Get Shichrur.

6) The next stage of this argument utilizes a very different area of Halachah. What is the Din if someone died on Erev Pesach before he had time to do Bedikas Chametz? Are his heirs obligated to check and destroy the Chametz? The Chok Yakov (in Shulchan Aruch Orach Chaim 435:2) cites Ameimar in Gitin 40a who says that a person does not bequeath a prohibition to his sons. Even though the Halachah does not follow Ameimar, the Rosh writes that this is only mid'Rabanan. It seems that the Chok Yakov is prepared to include this Sevara in a Heter to relieve the heirs from the obligation to check for the Chametz and to rely on Bitul Chametz, which is sufficient mid'Oraisa.

7) Perhaps we may also use this line of reasoning in the case of a descendant of an Eved, whose heirs might have died over a 100 years ago and for whom it is no longer possible to find anyone who can write a Get Shichrur. Since the latter requirement might only be mid'Rabanan, it can be argued that there may be room to be lenient in this case of great need. The reason that the Rosh gave (that people will gossip that he is still an Eved) might not apply 150 years later when nobody knows that he was ever an Eved.

Kol Tuv,

Dovid Bloom

Now I will respond to the question about whether anyone apart from the master can give a Get Shichrur.

1) This question is discussed by Tosfos to Gitin 40b, DH v'Kasav, in the name of Rabeinu Shmuel.

The Gemara (end of 40a) relates the episode about the Eved owned by two partners, and one partner set free his half of the Eved. The other partner decided to give his half to his minor son. Rav Papa ruled that we appoint an "Apotropos," a trustee, who will write a Get Shichrur "Al Shmei," "in his name." Rabeinu Shmuel explains that this means that a Get Shichrur was written in the name of the Apotropos. Generally speaking, an Apotropos may not free an Eved, but in this case, since the partner behaved incorrectly by giving his half to his under-age son, the Beis Din declares that the Eved is Hefker and gives him to the Apotropos, in order that he can set him free.

2) It appears that the Rambam (Hilchos Avadim 7:8) learns the Sugya the same way as Rabeinu Shmuel (see Aruch ha'Shulchan Yoreh Deah 267:93). He writes that the Beis Din appoints an Apotropos for the minor and the Apotropos writes a Get Shichrur. The Ra'avad writes that the Rambam "has made a great mistake, because how can the Apotropos write a Get Shichrur, since he is not the master?!"

However, the Rambam learns like Rabeinu Shmuel, that even though usually an Apotropus may not free an Eved, in this case the Chachamim allowed this practice.

3) Accordingly, if we ever should hear of a case of an Eved of a Jewish family before the Civil War who owned their Eved in a Torah way, so that the Eved observed the Mitzvos that a woman is obligated to observe (and whose children would have the same status as he, if he married a Jewess after the Emancipation Proclamation but before he received a Get Shichrur), then we may suggest that there would be a precedent from the opinion of the Rambam that Beis Din can appoint somebody, other than the master, who has the power to write a Get Shichrur.

4) When an Eved Kena'ani goes free, he becomes a full Jew, but he must immerse in the Mikvah (see Shulchan Aruch Yoreh Deah 267:7). Therefore, after the emancipation, the Eved Kena'ani would become Jewish but he would require a Get Shichrur to allow him to marry a Jewess.

Kol Tuv,

Dovid Bloom