Southern Slavery and the Law, 1619-1860

By Thomas D. Morris | Go to book overview

9
Jurisdiction and Process in the Trials of Slaves

The worst system which could be devised. JOHN BELTON O'NEALL, Negro Law of South Carolina ( 1848)

"Trial of slaves upon criminal accusations," wrote Stroud, "is in most of the slave states different from that which is observed in respect to free white persons; and the difference is injurious to the slave and inconsistent with the rights of humanity."1Stroud's condemnation rested on the idea that process matters. Before they were punished by public authorities slaves would be judged, and the processes followed in judging them tell us a great deal about slave law. Process guides and constrains judging, and judging itself is a complex jurisprudential problem. Law in the Western legal tradition, outside its application to slaves, has often been analyzed in terms of styles of judging. Patrick Atiyah and Robert Summers, for instance, compared the styles of judging of English and American judges. They found that the former had "throughout history shown anxiety lest the effect of legal prohibitions should be weakened by equitable modifications designed to show mercy or compassion (or even justice) to those who have committed prohibited acts." English judges, they concluded, tended to a much "greater use of formal rules" than did American judges, who saw a legal rule not as a clear and formal command, but as a guide at most. American judges were more likely to go outside a formal rule to examine substantive considerations of justice. Much earlier, Weber had identified two characteristics of lawmaking: a "formal rationality" in which "only unambiguous general characteristics of the facts are taken into account" and what he called "Khadi-justice," which followed not rules of "formal rationality" but widely held ethical, social, or religious values embedded in a "substantively rational law."2 These, of course, are analytic models, but they can help us frame some questions about the nature of the trials of slaves. Did the judging of slaves tend toward formal rationality or toward an open reliance on widely held community values about race and about the subordination of those in bondage? The latter view is more congenial and is in accord with the judgment of

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