Free to Enslave: The Foundations of Colonial American Slave Law

Yale Journal of Law & the Humanities Volume 5 Issue 2 Yale Journal of Law & the Humanities Article 7 January 1993 Free to Enslave: The Foundations of Colonial American Slave Law Jonathan A. Bush Follow this and additional works at: https://digitalcommons.law.yale.edu/yjlh Part of the History Commons, and the Law Commons Recommended Citation Jonathan A. Bush, Free to Enslave: The Foundations of Colonial American Slave Law, 5 Yale J.L. & Human. (1993). Available at: https://digitalcommons.law.yale.edu/yjlh/vol5/iss2/7 This Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale Journal of Law & the Humanities by an authorized editor of Yale Law School Legal Scholarship Repository. For more information, please contact . Bush: Free to Enslave Free to Enslave: The Foundations of Colonial American Slave Law Jonathan A. Bush* Only a few decades ago, it was possible to write accounts of the culture or economy of the antebellum South which barely mentioned slavery or omitted "the peculiar institution" altogether. Today, slavery and race are rightly seen as central questions for the entirety of Southern-indeed American-history. Much of the scholarly attention to slavery has focused on the law. Historians have quarried legal records, including cases, statutes, probate inventories, and records of debtors' sales, for a wide range of social and economic history research projects. But scholars also have examined late eighteenth- and nineteenth-century slave law, Northern as well as Southern, for the legal reasoning and intellectual underpinnings of slavery. How did the common law permit, explain, and classify this uniquely problematic form of property? And how did mandarin appellate judges, so often the heroes of legal scholarship, apply their professional skills and moral sensibilities to cases involving slaves? The interpretive efforts have yielded diverse and often brilliant views, but the scholarship shares the assumption that the law was an important social institution buttressing slavery and that the precise configurations of slave jurisprudence therefore matter.1 This article approaches slave law with the contrary premise that, in the critical first century of English colonial slavery, the common law had very little of importance to say about slaves, and it seeks to explore the * This paper had its origin in a talk delivered to the Critical Legal Studies Conference, Cambridge, Mass., April 10-12, 1992. I thank my fellow panelists, Orlando Patterson and Mark Tushnet, and the members of the audience for their valuable criticisms. I also thank J.H. Baker, Guyora Binder, Peter Coffman, Paul Finkelman, Mark Floersheimer, Eric Foner, Susan Kent, Lisa Lang, Charles A. Miller, Robert C. Stacey, Robert J. Steinfeld, Alan Tonelson, and Alan Watson. Thanks also to the referees of the Yale Journal of Law & the Humanities. 1. Some leading interpretations are advanced and assessed in ROBERT M. COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS (1975); PAUL FINKELMAN, AN IMPERFECT UNION: SLAVERY, FREEDOM, AND COMITY (1981); ELIZABETH FoX-GENOVESE AND EUGENE D. GENOVESE, FRUITS OF MERCHANT CAPITAL 337-87 (1983); MARK TUSHNET, THE AMERICAN LAW OF SLAVERY, 1810-1860 (1981); A.E. Keir Nash, Reason of Slavery: Understanding the Judicial Role in the PeculiarInstitution, 32 VAND. L. REV. 7 (1979). The burgeoning monograph literature is illustrated by the essays in 31 AM. J. L. HIST. 269, 306, 322, 359 (1987) (articles by Paul Finkelman, Judith K. Schafer, Andrew Fede, and Robert J. Cottrol) and LAW, THE CONSTITUTION, AND SLAVERY (Paul Finkelmari ed., 1989). Published by Yale Law School Legal Scholarship Repository, 1993 1 Yale Journal of Law & the Humanities, Vol. 5, Iss. 2 [1993], Art. 7 Yale Journal of Law & the Humanities [Vol. 5: 417 significance of that unexpected silence. Unlike many other slave societies, colonial America never developed a systematic law of slavery. Early American slave law was largely reactive and, in particular, played little role when the choice was made in the seventeenth century to turn to slavery. Rather than focusing on what substantive law of slavery existed, this paper instead explores how emigrants from the densely legalistic culture of the English common law erected slavery without direct legal authority. It asks how they and their descendants, unlike colonists elsewhere in the New World, maintained slavery without the sanction of a thorough slave law. If accurate, this claim that common law was irrelevant describes a seemingly paradoxical state of affairs. "English society was intensely 'law-minded', obsessed with legal considerations, legal rights, and legal remedies." 2 Early seventeenth-century Englishmen regarded law and litigation as a principal means of dispute resolution, and the volume of litigation in royal courts continued to grow. 3 Litigants sought more than speedy resolution; they seem to have viewed the law as an important means of social interaction. In the words of one leading historian, litigation "had everything that war can offer save the delights of shedding blood. It gave shape and purpose to many otherwise empty lives ... [and] remained the most popular of indoor sports . . . ." The swaggering, quarrelsome frontier entrepreneurs who clawed their way to the top of colonial Southern and Caribbean society shared these values, and they too were "law-minded," using local courts and law to consolidate property and position.5 And of course slaves and indentured servants were valuable investments for planters, capable of yielding enormous profits though raising unusual legal issues. For these practical reasons, we might expect a slave law to develop not long after the inception of slavery as an institution. Part I of this paper develops the paradox of a colonial slavery without 2. E.W. IVES, THE COMMON LAWYERS OF PRE-REFORMATION ENGLAND. THOMAS KEBELL: A CASE STUDY 7 (1983). 3. The newest figures are contained in C.W. BROOKS, PETTYFOGGERS AND VIPERS OF THE COMMONWEALTH: THE "LOWER BRANCH" OF THE LEGAL PROFESSION IN EARLY MODERN ENGLAND 48-57, 75-79 (1986). The level of litigation is also assessed in 2 J.H. BAKER, THE REPORTS OF SIR JOHN SPELMAN 51-62 (94 Selden Soc. 1978); MARJORIE BLATCHER, THE COURT OF KING'S BENCH 1450-1550: A STUDY IN SELF-HELP 17-20, 138-39, 170-71 (1978); IvEs, supra note 2, at 7-9, 204-05, 207, 216; S.F.C. MILSOM, HISTORICAL FOUNDATIONS OF THE COMMON LAW 65-67 (2d ed. 1981); LAWRENCE STONE, THE CRISIS OF THE ARISTOCRACY, 1558-1641, at 240 (1965); Thomas G. Barnes, Star Chamber Litigants and their Counsel, 1596-1641, in LEGAL RECORDS AND THE HISTORIAN 7 (J.H. Baker ed. 1978). 4. STONE, supra note 3, at 242. 5. EDMUND S. MORGAN, AMERICAN SLAVERY, AMERICAN FREEDOM: THE ORDEAL OF COLONIAL VIRGINIA 124-27, 148 (1975); Bernard Bailyn, Politicsand Social Structure in Virginia, in SEVENTEENTH-CENTURY AMERICA 90, (...truncated)