Emancipation: Conceptions, Restraints, and Practice
The State has nothing to fear from emancipation,
regulated as . . . law directs it to be.
JOHN BELTON O'NEALL, Negro Law of South Carolina ( 1848)
Manumission is not a simple concept. Buckland long ago noted that it was like a conveyance, but it was not a conveyance. It was not the transfer to the slave of what the master "possessed," dominion--it was the release from dominion. Two scholars have used the anthropological idea of the gift to explain manumission. But the gift itself is not a simple concept. Gift exchanges in premarket societies involved a redistribution of goods at the same time that they created a variety of obligations, even though it appeared that the gifts were given freely. Manumission, Patterson argued, was the gift of social life "ideologically interpreted as a repayment for faithful service." It was, David Brion Davis agreed, the "negation of an already negated social life" and required "continuing gratitude and obligations to the master and his successors."1
In English common law, however, a "gift" was gratuituous. There is force to the Patterson-Davis view if we look at the practice among some Southern slaveowners and not at the law, or if we focus on the Roman law of slavery and those slave systems built on civil law foundations, like Louisiana's. One obligation in these was obsequium. In Louisiana if a freedman was "ungrateful" to a master who had freed him out of goodwill, "the master may, on that account, reduce him again to slavery, by complaining against him, and proving . . . [it] in court." The idea of ongoing obligations in the South did not exist outside a civil law state. As Coke remarked of the common law, "if a villein be manumised, albeit he become ungratefull to the lord in the highest degree, yet the manumission remaines good: and herein the common law differeth from the civill law."2
Finally, it bears emphasis that in the South manumission often did not create a civis, which occurred in Roman law. One illustration is the conclusion reached by Lumpkin in Bryan v. Walton ( 1853):