Contract Law in the Sale and Mortgaging of Slaves
Sold, transferred, or pawned as goods, or personal estate,
for goods they were.
WILLIAM GOODELL, American Slave Code ( 1853)
A frightening "incident" of bondage was that slaves were "at all times liable to be sold absolutely."1 They also could be used as collateral, or their labor might be transferred in a hire contract. The danger increased by the turn into the nineteenth century with the spread of liberal capitalism. Debt and the allocation of market risks were crucial elements in the emergence of capitalism. The central legal concept was "contract."
A contract is a promise that the law will enforce. "Contracts and promises are essentially risk-allocation devises" and came with an "advanced level of economic development." But not all promises were enforceable. "Consideration" was a crucial doctrine. The notion was that "the promisee must give something in exchange for the promise that is either a detriment to himself or a benefit to the promisor."2
These ideas evolved. During much of the seventeenth and eighteenth centuries there was no body of law known as "contract law," and there were many unsettled questions. For instance, because it was not always clear what had been promised, would the law ever assume certain things that had not been mentioned in the bargain? An old paternalistic notion, uncongenial to the full laissez-faire freedom of contract doctrine of the nineteenth century, was that "a sound price implies a sound commodity." The emerging idea was caught in John Joseph Powell's comment in his late-eighteenth-century treatise on contracts: "it is the consent of parties alone, that fixes the just price of any thing. . . . Therefore a man is obliged in conscience to perform a contract which he has entered into, although it is a hard one."3
One crucial earlier development had been the creation of the common law writ of assumpsit,4 which was used to hold people accountable for the nonperformance of assumed obligations. While the "contract" was emerging, various forms of