Ideology and Imagery in the Law of Slavery - Symposium on the Law of Slavery: Theories of Democracy and the Law of Slavery

Chicago-Kent Law Review Volume 68 Issue 3 Symposium on the Law of Slavery: Comparative Law and Slavery Article 4 June 1993 Ideology and Imagery in the Law of Slavery Symposium on the Law of Slavery: Theories of Democracy and the Law of Slavery William W. Fisher III Follow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreview Part of the Law Commons Recommended Citation William W. Fisher III, Ideology and Imagery in the Law of Slavery - Symposium on the Law of Slavery: Theories of Democracy and the Law of Slavery, 68 Chi.-Kent L. Rev. 1051 (1992). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol68/iss3/4 This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact . IDEOLOGY AND IMAGERY IN THE LAW OF SLAVERY* WILLIAM W. FISHER III** I. INTRODUCTION In important respects, the rules used by the Southern colonies and states to administer the system of chattel slavery were consistent and coherent. For example, by the early eighteenth century, all jurisdictions had adopted the principles that a person's status as free or slave is determined by the status of his or her mother 1 and that only persons with at least some nonwhite blood can be slaves. 2 The law governing homicide of slaves by whites was also approximately the same throughout the region: during the colonial period, killers of slaves received only modest sanctions (typically a fine or short prison term, combined with an obligation to compensate the owner of the victim); between 1790 and 1820, the penalties were increased substantially (although executions remained rare, and many substantive and procedural rules were available to killers of slaves that were not available to killers of whites or free blacks); and during the remainder of the antebellum period, the law was relatively stable in all states. 3 During the colonial period, slaves everywhere were subject to severe criminal penalties for a wide variety of offenses; by the Civil War, the relevant rules had been softened a good deal, but remained harsher than those applicable to whites. 4 When dealing with sales of Copyright 1993. Please do not quote or reproduce without permission. * Professor of Law, Harvard University. This Essay was prepared while I was a Fellow at the Center for Advanced Study in the Behavioral Sciences. I am grateful for financial support provided by the Andrew W. Mellon Foundation. Drafts of the Paper were presented to the Stanford Law School Faculty Workshop and the Stanford Legal History Group; the reactions of the audiences at those sessions provoked significant modifications of the argument. The suggestions of Elizabeth Clark, Paul Finkelman, Robert Gordon, Joann Lisberger, Barry O'Connell, and Dorothy Ross also much improved the Paper. 1. See Wilbert Moore, Slave Law and the Social Structure, 26 J. NEGRO HIsT. 171, 185-87 (1941). This rule represented a repudiation of the doctrine that governed the English law of villenage. 2. For discussions of the modest differences between the colonies and states concerning how racial status is to be determined and how much "black blood" is essential to expose a person to enslavement (and other legal disabilities), see William W. Wiecek, The StatutoryLaw of Slavery and Race in the Thirteen Mainland Colonies of British America, 34 WM. & MARY Q. 258 (1977); Paul Finkelman, The Crime of Color, TUL. L. REV. (forthcoming 1993). 3. See ANDREW FEDE, PEOPLE WITHOUT RIGHTS: AN INTERPRETATION OF THE FUNDAMENTALS OF THE LAW OF SLAVERY IN THE U.S. SOUTH 62-97 (1992); ALAN WATSON, SLAVE LAW IN THE AMERICAS 74-75 (1989). 4. See, e.g., A. LEON HIGGINBOTHAM, JR., IN THE MATTER OF COLOR: RACE AND THE AMERICAN LEGAL PROCESS: THE COLONIAL PERIOD (1978); PHILIP J. SCHWARZ, TWICE CON- CHICAGO-KENT LAW REVIEW [Vol. 68:1051 slaves, courts throughout the South eschewed the doctrine of caveat emptor that was coming to dominate commercial law in the North; 5 if a purchaser could show that a slave was defective (for example, ill, insane, or prone to running away) at the time of sale, he could secure rescission of the transaction. 6 Finally, in all jurisdictions slaves were deprived of many civil rights and liberties: they could not make contracts or other legally binding choices, 7 sue or be sued,8 acquire property, 9 legally marry,' 0 or (with rare exceptions) testify against whites." In several other respects, however, the law of slavery was inconsistent or incoherent. Many issues were handled differently in the various states. For example, in Virginia and South Carolina, slaves prosecuted for serious crimes received few of the procedural protections available to white defendants; 12 in Louisiana, Georgia, Delaware, and Maryland, slave defendants were given more protections but not as many as DEMNED: SLAVES AND THE CRIMINAL LAWS OF VIRGINIA, 1705-1865 (1988); KENNETH STAMPP, THE PECULIAR INSTITUTION 206-16 (1956). 5. See MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1760-1860, at 180 (1977). 6. See Andrew Fede, Legal Protection for Slave Buyers in the U.S. South: A Caveat Concerning Caveat Emptor, 31 AM. J. LEGAL HIsT. 322 (1987); Judith Schafer, "Guaranteed Against the Vices and Maladies Prescribed by Law:" Consumer Protection, the Law of Slave Sales, and the Supreme Court in Antebellum Louisiana, 31 AM. J. LEGAL HIST. 306 (1987). For discussion of minor differences among the states concerning the kinds of defects that would justify rescission, see Ariella Gross, "Pandora's Box": Breach of "Moral Qualities" Warranty in Slave Law in the Deep South, 1793-1866, at 6-10 (1992) (unpublished manuscript, on file with author). 7. See, e.g., Creswell's Ex'r. v. Walker, 37 Ala. 229, 234-35 (1861); A. Leon Higginbotham & Barbara Kopytoff, Property First, Humanity Second: The Recognition of the Slave's Human Nature in Virginia Civil Law, 50 OHIO ST. L.J. 511, 525-28 (1989). 8. The one significant exception to this principle was that, in every state, slaves were permitted (usually through "next friends") to petition for freedom on the ground that they had been wrongfully enslaved. See, e.g., Act of 1740, § 1, S.C. Public Laws 163-64 (An Act for the Better Ordering and Governing Negroes and Other Slaves in this Province); Act of June 18, 1822, § 76, 1882 Miss. Laws 179, 198-99 (An Act to reduce into one, the several acts, concerning Slaves, Free Negroes, and Mulattoes). 9. See, e.g., Higginbotham & Kopytoff, supra note 7, at 528-33; William E. Wiethoff, The Logic and Rhetoric of Slavery in Early Louisiana Civil Law Reports, 12 LEGAL STUD. F. 441, 448 (1988). By contrast, although slaves in Rome technically could not own property, they frequently were permitted to earn money and thereby accumulate a fund, called peculium-and even to use the fu (...truncated)