Wrongs of Slaves and the Civil Liability of Masters
As if the injury was effected by the natural elements of air, or fire.
Cawthorn v. Deas ( Alabama, 1835)
Despite the efforts of slaveowners to control slaves, there were many occasions when they could not do so. A significant legal question, then, became when, and on what principles, masters were held liable in civil actions for the intentional or unintentional injuries inflicted on others by their slaves. A first glance at the case law can easily leave one confused. Judge Harry I. Thornton, for example, concluded for the Alabama Supreme Court in Cawthorn v. Deas ( 1835) that for many victims of slave wrongs "it is, as if the injury was effected by the natural elements of air, or fire." There would be no compensation. Six years later the Louisiana Supreme Court, in Gaillardet v. Demaries ( 1841), argued that a master's liability was "one of the burthens of this species of property; it is absolute and exists whether the slave is supposed to be acting under their authority or not."1 What lay beneath the apparent muddle, of course, was choice of policy.
Guido Calabresi has shown that the whole question of allocating the burdens of accidents is a matter of choice, and "what we choose, whether intentionally or by default, will reflect the economic and moral goals of our society." Interpretation of the emergence of torts as a distinct legal category has been raised to a high level by the work of Horwitz and G. Edward White, among others. Horwitz argued that in the United States tort law underwent a revolutionary transformation during the first few decades of the nineteenth century. The most important development was the destruction of the notion of strict liability, which had stood in the way of the development of the idea of carelessness as a central element in negligence actions. It was also necessary to break the concept of negligence away from its contractual foundations. This development was pronounced in Pennsylvania, Massachusetts, and New York, and was associated with the rise of industrialization--in fact, it preceded it and was one of the conditions that aided its rise. The end result was