The introduction serves as a brief historiographical essay that situates Morris’s text alongside other prominent texts and authors in the field. Morris uses the introduction to familiarize readers with, among other things, the differences between common law and courts of equity, the differences between civil and criminal law, and other relevant information such as the fact that statutes in England and America are mostly products of the nineteenth century. Morris believes that slavery reinforced English racism in that the English were predisposed to view Africans as inferior and so used the law to categorize racial difference and justify slave property. Morris suggests that experts can skip most of his introduction probably because the introduction is, as I have suggested, a piece about historiography rather than a history in itself.
Sources: Racial and Legal
Chapter One: The Function of Race in Southern Slave Law
Popular science maintained that blacks were inferior, and this understanding was reflected in law. Indians were not enslaved as often or in the same numbers as blacks. The presumptions and definitions of “slave” had to do with blackness; therefore, the legal status of mulattoes was often in flux. Law had to define people by race and then determine their free or slave status afterwards. Several Southern states adopted laws allowing free blacks to sell themselves as slaves.
Chapter Two: The Sources of Southern Slave Law
Some Southern slave law derived from Roman law; some derived from English common law. The origins of Southern slave law are traceable to at least Virginia. The degree to which Virginia followed or revised the common law is debatable. In early Virginia, many blacks were treated as indentured servants, not slaves. Not until the mid-seventeenth century did blacks become routinely associated with slavery. There is little evidence to suggest that Virginians had a sophisticated understanding of ancient Roman or other European legal traditions. A child’s status as free or slave followed the mother under the judicial principle of partus sequitur ventrem. The traditional common law rule was that the child’s status followed the father. Some appellate courts tried to link their opinions to the precedents of civil law or the Roman law on slavery. Some judges analogized slavery to English villenage. The roots of slavery in Hebraic tradition and Biblical literature had an enormous influence among nineteenth-century Southern whites.
Slaves as Property
Chapter Three: Slaves as Property—Chattels Personal or Realty, and Did It Matter?
The law of property largely came to regulate slave existence in the nineteenth century, when the distinction between real and personal property began to break down. The slave as chattel was a legal fiction that defined the status of the owner more than it did the status of the slave because a slave had no legal interest. In eighteenth-century Virginia, slaves were defined as realty in order to secure constant labor forces for Southern commercial plantations. Kentuckians followed the lead of Virginians and adopted laws defining slaves as chattel. Arkansas vacillated in its various treatments of slaves as realty, changing the law multiple times. Louisiana, on the other hand, based slave law in part on Spanish law and in part on the French code noir, which, borrowing from Roman law, distinguished between moveable and immoveable property. Southern judges compared slaves to land or property in case opinions.
Chapter Four: Slavery and the Law of Successions
By the late eighteenth and early nineteenth-century, property became more alienable. At common law, property succeeded by descent or by will. A variety of schema existed for intestate succession (upon one’s death, a division of property not provided for by will). Slave families could be partitioned when these schema were carried out. By the eighteenth-century, people could bequeath their property more or less to whoever they wanted. By the eighteenth-century, moreover, it was no longer the rule that slaves could not be remainders in chattel. A remainder in slave property was increasingly a valid executory interest. Some slaves were left in trusts. Rules about bequeathing women slaves complicated legal practices because some slave women were pregnant or else could become pregnant. Some slave owners acted as if they could bequeath unborn children. Under the principle of dower, widows were entitled to one-third of the husband’s real property—sometimes but not usually including slaves—as a life estate. Division of slaves as personal property differed from time to time and place to place. Slaves could be used to satisfy debts, even after an owner’s death. Many slave owners did account for their slaves’ humanity by providing for them in wills, although rarely by freeing them upon the owners’ deaths.
Chapter Five: Contract Law in the Sale and Mortgaging of Slaves
As property and units of exchange, slaves were subject to contract law. Contract law did not fully emerge as a body of law during the seventeenth- and eighteenth-centuries. Not until the nineteenth-century did contract law fully develop. A precursor to contract law was the writ of assumpsit, which held people accountable if they did not perform their obligations. Damages were remedies at law whereas specific performance and the like were remedies in equity. Warranty laws developed whereby sellers warranted the quality of goods in slaves. A seller, for instance, might warrant, or vouch for, a slave’s “soundness.” Warranty laws were new exceptions to the traditional rule of caveat emptor. Southern courts often resorted to specific performance when dealing with slaves, although generally courts are loath to grant specific performance as a contract remedy. This fact flies in the face of the idea that courts will grant specific performance only when the goods exchanged are unique. That is because courts usually treated slaves as all alike. Trover allowed complainants to recover damages rather than specific property whereas detinue allowed complainants to recover specific property, but these remedies often seemed inadequate in the context of slave contracts. Slaves could be used in mortgage contracts. When this happened the slave functioned as either a legal estate or a lien. Slaves were often sold in conditional sales whereby the seller retained the right to repurchase the slaves. Determining fair market value for slaves was tricky, and recordings of slave sales were required by statute. Creditors did not necessarily enjoy taking possession of slaves for collection purposes because that entailed a new set of legal and accounting responsibilities. In some cases a mortgagee could hold the children of mortgaged slaves as a security.
Chapter Six: The Slave Hireling Contract and the Law
Five to fifteen percent of the slave population was hired out by contract in the nineteenth century, but the practice had not always been common or widespread. Master-servant law regulated the relations between employees and free workers, but it did not govern slave hires. The law of bailments served as an analogy for slave hires. In a bailment, property is transferred to the temporary custody or control of another. Some courts treated the hirer as having rights and duties over the slave while the slave had no such rights or duties over the master; other courts treated rights and duties as whatever was spelled out contractually. Sometimes owners were held liable for terms implied in the contract, such as the implied duty to control a slave. Slave hireling contracts were subject to strict liability. People were often held liable for negligent injuries against slaves. The fellow servant rule came about in the 1840s. It protected employers from vicarious liability and the negligence of employees. Agency law was rooted in master-servant law. Southern jurists did not apply the fellow servant rule to hired slaves.
Slaves as Persons
Chapter Seven: Southern Law and the Homicides of Slaves
A pressing issue for Americans was how much force society allowed masters or third-parties to use against slaves. Early English law framed American laws regarding slave homicide. Records about colonial statutes are too sparse to draw sweeping conclusions from, although they do suggest that slave homicides were treated separately from other homicides. Sometimes people killed slaves without suffering legal consequences, but often they faced trial. Even masters faced trial. After the Revolution, Americans moved to secure more legal protections to prevent and deter slave murder. Appellate cases often established that the master’s authority over the slave’s body was not absolute. These cases brought about questions about how much force was too much to violate slaves’ bodily integrity or rights. At the local level, there may have been more cases of homicide brought against whites.
Chapter Eight: Law and the Abuse of Slaves
Punishment was essential to defining relations between masters and slaves. It was meant to degrade and undermine slaves, although its exercise was limited by law and social conventions. There were many statutes in the colonial South that restrained the violence of masters. Most jurisdictions punished masters for cruelty or inhumanity. Evidence was problematic because slaves were not allowed to testify. Some slave owners were found guilty of slave abuse at common law. In some states, slaves were allowed certain civil “rights” even if slaves could not enforce or litigate about those rights without the help of whites. Masters were required to provide food and clothing for slaves. Some laws provided remedies, both civil and criminal, for third-party abuses of slaves. Because of the vagueness and sparseness of court records, we do not know how routine civil actions for slave abuse really were. Courts and statutes enabled masters to recover for abuse of their slaves.
Chapter Nine: Jurisdiction and Process in the Trials of Slaves
Community consensus or opinion shaped the judicial process just as formal rules did. The procedural law remains ambiguous, and formality seemed to increase as time passed. Magistrates could rule on basic punishments for slaves. By the nineteenth century, the magistrate position had become more formal because it oversaw more than minor criminal offenses of or against slaves. In the mid-eighteenth century, people pointed out that the magistrate position undermined the institution of juries or trial by peers, which were seen as weapons against an oppressive state. Grand juries, also perceived as weapons against an oppressive state, were sometimes used in slave trials as well. Criminal proceedings were mostly local affairs, but in time procedural rules developed allowing for transfers of venue. The right of appeal was perhaps the most important procedural right available to slaves.
Chapter Ten: Slaves and the Rules of Evidence in Criminal Trials
Slaves generally could not testify against whites. Slave testimony, if allowed, had to be accompanied by two witnesses. Slaves also had to take oaths before they testified. In many states, such as Virginia, slaves could not testify in capital cases. By the nineteenth-century, slave testimony could convict or acquit other slaves, and punishment was meted out for perjury. Most criminal trials in the South did not hinge on slave testimony. Confessions were almost always admissible, although the voluntariness of slave confessions was always questionable. Slaves maintained a quasi-legal order among themselves in the slave quarters. “Legal traditions, religious values, the imperatives of social subordination, racism, and even property interests could determine whether a person would be admitted as a witness in a criminal case, and they could determine the way evidence was weighed if it was received. But this was contingent” (246). Fear of slave revolt brought about the admissibility of slave testimony increasingly in the years leading up to the Civil War.
Chapter Eleven: Masters and the Criminal Offenses of Their Slaves
Criminal law could function to affirm the authority of masters over slaves. Masters could prosecute slaves under criminal law, or they could be held criminally liable for the conduct of their slaves. The market value of a convicted slave diminished. Masters could testify on behalf of slaves. Masters had to make restitution for the criminal offenses of their slaves. No matter the legal restrictions and obligations of masters or slaves, masters could not completely control their slaves.
Chapter Twelve: Obedience and the Outsider
Slaves were considered “outsiders.” As such, slaves had no rights and therefore, theoretically at least, no duties. But masters typically held that they had a duty and a calling to govern subordinates and inferiors, and that subordinates and inferiors had a duty to obey masters. Treason was a difficult concept to apply to slaves in part because slaves were outsiders. Nevertheless, slaves who resisted violently were occasionally prosecuted for treason. White planters adopted from the British some laws regarding treason, rebellion, and insurrection, but mostly they reacted violently against threats and perceived threats to the social order. There were many nineteenth-century insurrection cases. Concepts of treason and murder did not necessarily follow common law maxims. Most slaves never had their cases reach the appellate level. There are many compelling stories about master-slave relationships that resulted in the murder of the master. Ultimate alienation, or making one an “outsider,” was a way to deal with slave resistance. Making one an outlaw stripped him of his rights. Slaves occupied a lowly position in society and were never completely insiders or outsiders.
Chapter Thirteen: Slaves’ Violence against Third Parties
Slaves had duties of care to all whites, not just masters. One issue that arose during cases involving the death of whites was the issue of provocation, which could mitigate punishment. Most Southern courts did not recognize provocation as something that could reduce punishments for the black killing of a white body. An offense that does not appear in colonial records is assault with intent to kill. This offense arose in statute—when committed by a slave against a white person—in the early nineteenth-century. Intent to kill was, like actual killing, treated as a capital crime. States dealt with assault in different ways. Some states even dealt with the crime of insolence, which was a form of nonviolent resistance. Violence among slaves was handled differently by courts in different times and places.
Chapter Fourteen: Slaves, Sexual Violence, and the Law
Black male bodies were treated as scientific subjects that were hypersexual. Sometimes interracial sex issues reached the courts; sometimes, too, rape litigation centered on race. The definition of “rape” evolved over time. Every Southern state dealt with rapes by slaves, but only if the victim was a white female. On rare occasions slaves were indicted for raping slave women. Black women were not as protected under the law as were white women, with some exceptions in early Virginia. Just a few states adopted age-specific rape statutes. Some slaves, suspected of attacking white women, never received a trial. A difficult issue was the admissibility of evidence regarding prosecuting women’s character. Rape charges were usually brought by lower class women, whose virtue was suspect. Sometimes the testimony of lower-class women was not enough to convict slaves. We lack substantial material about trials of black men for the rape of white women, but we can say that male slaves stood to lose much during the trials—they faced execution—and also that evidentiary rules were lax during these trials. Rape trials in the South implicated what later scholars would call the “rape myth” or “rape fantasy” whereby white males glorified the white female body, the site of Southern supremacy.
Chapter Fifteen: Property Crimes and the Law
Petty stealing was not a legal problem between slaves and masters, but slaves stole more than just food from masters. Most slave crimes against property were considered larceny. Hog stealing was frequent. Burglary at common law was the breaking and entering of a dwelling, at night, with the intent to commit a felony therein. Burglary was a capital offense that did not necessarily have a high conviction rate. Prosecution for fire gradually became prosecution for arson. Statutory changes regarding property crimes had to do with the growth of capitalism more than with adherence to the common law.
Chapter Sixteen: Police Regulations
One goal of slave codes was to control labor production in the South. This goal led to patrolling and hence to police regulations. Laws came to govern the way people could use their property, since such usage was not unlimited. These laws also addressed limits on ways in which masters used slaves. Pass laws, for instance, both regulated plantation life and allowed slaves a temporary and minimal freedom. Laws required masters to keep slaves on plantations that met or exceeded certain population minimums. Some owners allowed slaves to hire themselves out. The runaway slave threatened the idea of slave as property. Crimes related to running away were aiding or enticing slaves to run away. Other offenses included unlawful assembly and reading or writing. Slaves owned some property, but legislators put restraints on many forms of slave property. Law even addressed trading with slaves. Generally, police regulations ensured that slaves remained without property and dependent upon white masters.
Chapter Seventeen: Wrongs of Slaves and the Civil Liability of Masters
Slave owners could not always control slaves. One legal issue that often arose is whether and how a master could be held liable for the wrongful actions of his slave. Only one case analogized slaves to cattle. Instead, courts upheld the master-servant analogy. Master-servant law generally regulated masters’ liability for slave actions; no further punishment was allowed beyond that punishment which appeared in master-servant law. Masters, then, often compensated wronged parties on their own terms. Masters generally did not pay damages for slaves not acting under the masters’ control. Class relationships often played a part in judicial determinations about liability for slave wrongs. Gradually, in tort law, theories of responsibility sprung up.
Chapter Eighteen: Emancipation: Conceptions, Restraints, and Practice
Manumission was like a conveyance but not a conveyance. It was the renunciation of a property right, but it required state approval. Many problems arose when masters tried to transfer slaves by legacy or trust. Eventually, Southern states would override masters’ decisions to manumit slaves. That is because these states considered manumission to be a threat to the public interest. Slaves did have a right to purchase their freedom under contract. Election cases were those cases implicated when slaves had to choose between freedom and continued enslavement. Creditors could obtain rights in slaves just as if they (the creditors) were holding a lien on slaves as property. States provided manumission policies explaining how slave manumission could be done lawfully. Manumission was rare in the colonial world. There was not much manumission by deed as compared to manumission by will. During the antebellum years, comity between the states broke down.
Chapter Nineteen: Quasi and In futuro Emancipation
Manumission in futuro began in the nineteenth-century. It meant that slaves could not enjoy immediate freedom, which would come, as the Latin wording suggests, in the future. It raised issues particularly about women—whether women were slaves, for instance, rather than indentured servants. Because manumission was the discontinuation of a property right, mothers and their “increase” became common wordings in the law. Some states tried to resolve manumission problems by enacting statutes to determine a person’s status as free or slave. Some court judges were tasked with coming up with defining elements of slavery. This led to the idea that a slave mother’s issue took the status of the mother. Profound issues of slave law were implicated by voluntary enslavement laws and quasi-emancipation cases.