Southern Slavery and the Law, 1619-1860

By Thomas D. Morris | Go to book overview

2
The Sources of Southern Slave Law

Villeinage . . . as it existed in England, reflects but little
light on our subject.
State v. Boon ( North Carolina, 1801)

"The civil law," George Stroud wrote in 1827 in his influential abolitionist attack on Southern law, ". . . is generally referred to in the slaveholding states, as containing the true principles of the institution."1 He summarized the essential principles, using John Taylor Elements of the Civil Law, a work first published in 1754/5.2 What followed was a grim portrait of the complete dehumanization of human beings as slaves. Before the collapse of the Roman Empire, Stroud admitted, "several important changes had been introduced favourable to the slaves." He outlined some of these, such as the notion that the killing of a slave was punishable and the rule added by Hadrian that "cruel treatment towards slaves" was prohibited.3 Stroud's conclusion was that it would "be found, upon a close comparison, that the condition of the slave, in our slave-holding states . . . is but little-- if in any respect--better than was that of the Roman slave under the civil law."4 He did not indicate whether he had in mind ancient slavery before or after amelioration.

Some twentieth-century scholars have made similar comparisons. Arnold Sio concluded that Roman and American slave laws were very close.5 Similarity is important, but it does not necessarily signify influence. It can mean that certain generalizations about social relationships will hold true without regard to different historical experiences.6 The existence of such generalizations, however, does not indicate that one slave society has been a direct influence on another.7

Were the principles of Southern slave law derived from legal systems other than that of England? Some Southern jurists before the Civil War made the same connection between ancient slavery and Southern law as did the abolitionists.8 On the other hand, Henry St. George Tucker, a nineteenth-century Virginia jurist and son of St. George Tucker, disagreed: "What was more natural than a tacit acquiescence by every individual in the authority of the laws to which they had always been accustomed.""We can scarcely presume," he concluded, "that any but enthu

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