Law and the Abuse of Slaves
They don't all cruellize slaves.
LYDIA MARIA CHILD, Fact & Fiction ( 1846)
"Wrapt in its own congenial, midnight darkness,"1 the plantation was the place most masters and slaves struggled to define their relationship, although less as the Civil War approached and more slaves were hired out to railroads and factories.2 Punishment was central to that relationship. There was a coherent purpose in punishment: it was one procedure used to "degrade and undermine" the humanity of the slave and "so distinguish him from human beings who are not property."3 At the same time, there were limits on the amount or type of violence that society would accept. In addition to the potential social and religious limits on violence, there were the limits of the legal order. But as Daniel Flanigan notes: "it was in the protection of blacks from crime rather than the treatment of black offenders that the criminal law of slavery failed most miserably."4 One difficulty was to provide some legal definition of such terms as "inhumanity" or "cruel treatment" or "cruel punishment." To limit the power of slaveowners was always difficult, and it was not at all irrational to treat the violence they used against their slaves as if it were outside the legal order, as a noncrime. Vicious such a policy choice would be, but it would be logical. At the same time, it would be logical to try to place some limits on the cruel treatment of slaves precisely because cruelty threatened the delicate balance in the reciprocal obligations.5 Another way to express this is through Jean Paul Sartre's notion that obedience, even if obtained by constraint and force, could be used as an argument to support legitimacy.6 If slaves would be more obedient with decent treatment than with brutality, it would make sense to affirm the legitimacy of the system by an amelioration of the condition of the slaves by restraining the power of masters. If not, amelioration would be more dangerous than it was worth.
The actual degree to which the legal system restrained the power of masters and protected slaves from abuse has been a matter of dispute. Rose suggested that by the third decade of the nineteenth century the state had intervened to reduce the suffering that had marked the colonial period. She contended that it is ahistorical to overlook the "evolutionary nature of all institutions" and argue that "there