Southern Slavery and the Law, 1619-1860

By Thomas D. Morris | Go to book overview
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Southerners failed to agree among themselves on a formal definition of slavery, the institution that defined their social order. They were not alone--conceptual ambiguity has been as universal as the institution. "The Roman law of slavery," Buckland observed, "was developed by a series of practical lawyers who were not great philosophers, and . . . it seems unwise to base it [a definition of slavery] on a highly abstract conception which they would hardly have understood and with which they certainly never worked." C. Duncan Rice followed this cautious approach in his general history of the rise and fall of black slavery in the modern world: he declined to "formally define the characteristics of slavery." Nonetheless, many scholars have defined slavery in terms of ownership or property. Finley, who represented it in terms of powerlessness, indicated that to that end the notion of "chattelhood" was central. Patterson, on the other hand, claimed that it was misleading to suggest that one of the "constituent" elements of slavery is the "notion of property," because there are property claims in numerous human relationships that do not amount to slavery. The anthropologist Claude Mellissoux agreed. He pointed out that the "weakness of the legalistic approach is that it considers alienability as a characteristic specific to slaves," when it is not. Moreover, "efficient slave management implies a greater or lesser recognition of the slave's capacities as Homo sapiens, and thus a constant shift towards notions of obedience and duty which renders the slave indistinguishable, in strictly legal terms, from other categories of dependents."1

This last point was echoed during the 1850s by the Reverend C. F. Sturgis, author of the "Melville Letters", who wrote from Alabama that

black people expect, and, by a kind of conventional usage, almost demand, a number of little rights and privileges, which, although like the "common law," not referable to any positive enactments, are, like it, also of very binding influence. . . . One of the most effectual modes of inducing servants to perform their duties with cheerfulness, is to recognize all those little points; not, perhaps, as matters of right, but as concessions cheerfully made from the feeling of good will that exists between master and servant.2

Hegel, on the other hand, claimed that "a slave can have no duties; only a free man has them." It was a nice summary from a legal philosopher, but Southern judges and lawmakers did not agree. According to Buckland, however, the practical Roman lawyers did to a point: "over a wide range of law," he wrote, "the slave was not only rightless, he was also dutiless."3 This is not to say that the slave never possessed duties, or that once duties were imposed and legally enforced the person was no


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Southern Slavery and the Law, 1619-1860


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