Slaves as Property--Chattels Personal or Realty, and Did It Matter?
The slave is to be regarded as a thing . . . GEORGE STROUD, Sketch of the Laws ( 1827)
After the Civil War judges often referred to the "badges and incidents of slavery" when confronted with claims of denial of equal protection of the law. Stroud, in 1827, wrote that the "cardinal principle of slavery--that the slave is to be regarded as a thing,--is an article of property,--a chattel personal,--obtains as undoubted law in all of these states."1 An influential scholarly formulation has been that of Finley: the "idea of property is juristically the key--hence the term 'chattel slave.'"2 Others have been skeptical of the effort to define slavery in terms of property rights in humans. Orlando Patterson, for instance, believes that it leads to confusion because there are numerous human relationships that involve property claims in others that fall short of slavery. At most we should remember, as Finley did, that slaves were a "subcategory of human proprietary objects."3 There is nothing wrong with this caveat, but it does not relieve us of the problem of unraveling what it meant to claim property rights in humans in a slave society.
What did it mean to claim a property right in a "thing" in the Anglo-American legal world? "A legal right," Oliver Wendell Holmes Jr. observed, "is nothing but a permission to exercise certain natural powers, and upon certain conditions to obtain protection, restitution, or compensation by the aid of public force." Within mature legal systems the liberal conception of ownership includes the "right (liberty) of using as one wishes, the right to exclude others, the power of alienating and an immunity from expropriation." These are the "cardinal features of the institution" of ownership.4
Could they extend to human beings? Abolitionists denied that there could be property rights in humans,5 whereas proslavery writers scoffed at such a claim. Fitzhugh, for one, responded: "We think we can dispose of this objection to domestic slavery in a very few words. Man is a social and gregarious animal, and all such animals hold property in each other."6 But exactly what was it that was