The Slave Hireling Contract and the Law
No hirer of a Negro understands himself . . .
bound to deliver him at all events.
Harris v. Nicholas ( Virginia, 1817)
Estimates of the number of slave hires during the nineteenth century vary from 5 to 15 percent of the total annual slave population. Hiring obviously "was not a minor or inconsequential feature of slavery." There is no evidence of widespread slave hiring in colonial America, however. The percentages were on the rise in the last years before the Civil War as ownership of slaves became increasingly difficult for nonslaveholders with the sharp rise in slave prices. Roger Shugg suggested that many nonslaveholders could not even hire slaves during that period. This point was affirmed by John Shlotterbeck, who noted that "hiring extra hands at harvest was expensive and often impossible." Still, hiring persisted. As Kenneth Stampp put it, "small farmers who could not afford to buy slaves were well represented in the 'hiring-day' crowds." Slave hires, as Robert Fogel and Stanley Engerman argued, put to rest the notion that "the ownership of men was incompatible with the shifting labor requirements of capitalist society."1 But there was an important difference between slave hires and the "commodification" of free labor by its sale in a market, and it was reflected in the law that applied to the two different exchanges. Even though the reduction of free labor to a commodity to be sold in a market reduced the position of the free worker, it was not to the same level as the slave. Master-servant law governed the relationship between employers and free workers. A slave hire was more like the rental of a thing and was not governed by master-servant law.
Prior to the 1830s Southern judges searched for possible common analogies that would cover the legal issues in cases of slave hires. From the 1830s forward nearly all Southern courts treated them as a species of the law of bailment, a category of