Southern Slavery and the Law, 1619-1860

By Thomas D. Morris | Go to book overview

19
Quasi and In futuro Emancipations

There is no middle ground . . . between freedom and slavery.

Sidney v. White ( Alabama, 1848)

In Cannibals All Fitzhugh observed that "great as the difficulty is to determine what is Liberty, to ascertain and agree on what constitutes Slavery is still greater."1 Southern manumission meant liberty even when the act of granting freedom was framed in terms of Anglo-American property law: liberty was a "legacy" beyond all price. But manumission also introduced questions about the meaning of slavery. There was no doubt, of course, that slavery was involuntary, as well as unfree-- at least until the voluntary enslavement laws of the 1850s. In addition to involuntariness, were there particular disabilities and incapacities that Southern judges and lawmakers considered essential to any definition of slavery? To a large extent that turned on the question of "control" and "compulsion." Apart from "police regulations," how much control a master had or must exercise for a slave to be a slave in Southern thought was an issue primarily in the nineteenth century, when a free labor ideology had also emerged as a clear contrast.2 This was an issue especially in a number of cases involving testamentary dispositions of slaves. Sometimes it was because the attempt to emancipate occurred in states in which it was difficult, if not unlawful, to free a slave in-state. This raised the so-called quasiemancipation problem. And sometimes the question came up because an owner chose not to grant immediate freedom, but freedom in futuro. Manumission in futuro began in the late eighteenth century, and one of the wrenching questions related to the status of the female slave, which in turn involved the status of children she had before she became free. Another concern was less personal--was manumission in futuro a "perpetuity," a continuation of property claims in opposition to the claims of a commercial market and free alienation?


Quasi-Emancipation

An early illustration of the first issue occurred in The Trustees of the Quaker Society of Contentnea v. William Dickenson ( North Carolina, 1827). This case involved both the capacity of Quakers to take property in slaves and the concept of "quasi-

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