Southern Slavery and the Law, 1619-1860 by Thomas D. Morris.  Chapel Hill, NC: University of North Carolina Press, 1996. 575 pp. $49.95 Cloth. ISBN 0-078-2238-8.

Reviewed by Keith E. Whittington, Department of Politics, Princeton University.
 

The law of American slavery provides a fascinating lens for examining various aspects of early American society and government. The law of slavery is an intrinsically interesting angle on the practice of slavery itself. The legal context of slavery provides insights into the power and authority of slaveholders, the class and racial structure of Southern society, and the relationship between the slaves themselves and the world beyond their masters’ households. The law of slavery also shows the stresses of a legal system in extremis. The Romans had an extensive legal structure supporting their slave system, but in a more modern context writers such as Thomas Hobbes contended that slavery was above all an unstable relationship built on distrust and power.

To what degree was slavery simply an extreme form of law’s normal role of maintaining social order, and to what degree was slavery fundamentally at odds with inherited legal categories and concerns? Did law serve as a regulative system of principles and constraints in the context of slavery, or were judges simply another instrument of force at the disposal of slaveholders? Thomas Morris has provided a nearly comprehensive and definitive account of how the law of slavery worked and the ways in which the legal system and the slave system interacted. In doing so, he has provided fascinating evidence of the ways in which the legal system struggled to accommodate the needs of slavery, even as slavery introduced a variety of confusions into the inherited body of law.

Morris’s work is divided into four parts. The first develops some general considerations on the sources and function of law in the Southern system of slavery. The second section examines the extent to which slaves were regarded legally as a form of property, and the manner in which property law was altered to accommodate the particularities of human slavery. This is a crucial section for Morris, who argues that the degree to which slaves were legally conceptualized as property is critical to an understanding of how slaves fit into the legal system and yet has been underanalyzed by scholars.

The third section addresses how slaves were legally dealt with as human beings rather than as property. Occupying nearly half the text, this is the longest section and deals largely with how slaves were dealt with in the context of the criminal justice system and at trial. The final section examines the legal problems raised by manumission—or, as was often the case, efforts at manumission. Morris’s analysis is based largely on appellate court records drawn from across the South, from the colonial period through the Civil War, though he also examines a number of more basic legal documents, including trial court records, wills, and statutes, as well as legal commentaries, diaries and the like. In sum, this is a monumental effort to provide a comprehensive look at the law of slavery as a whole. Overall, Morris is hugely successful, though the work does suffer somewhat from the sheer mass of data.

A number of explanations have been offered to explain the development of the law of slavery in the American South. Many have emphasized race as the key concern. Anglo-American understandings of slavery depended on a deep racism that denied the moral personality of the slave. The law helped justify the reduction of some people to slaves, while also elaborating the implications of that dehumanization. At the same time, the law was centrally concerned with maintaining a racial social order based on white supremacy. Others have emphasized the degree to which the law exists as an autonomous institution responding to the professional concerns and intellectual problems of lawyers. Still others have struggled with the relationship between slavery and capitalism, finding the law of slavery to be less influenced by racial concerns than by a rampant possessive individualism and the needs of the marketplace.

These multiple explanations have led some, such as Mark Tushnet, to argue that the American South had embraced a basic legal contradiction. The assumptions of bourgeois law were fundamentally incompatible with the logic of slavery. Morris similarly chooses to avoid singular explanations for the development of the law of slavery, but he sees the result as one of legal confusion rather than as one of legal contradiction. Southern lawyers and judges continued to muddle along, responding to a changing set of economic, intellectual and social needs, with no sign of an impending systemic crisis when slavery was brought to an end by external force. The law of slavery did not have a unifying logic, but neither was it incoherent. The "law of slavery" is better characterized as the "laws" of slavery, which varied substantially from place to place and from time to time, though always deeply pragmatic in its development.

Morris provides a fascinating account of the numerous legal problems that arose relating to slavery. Many of those problems seem largely unrelated to the social and racial aspects of slavery, and Morris clearly benefits from his emphasis on the relationship between slavery and property law. Slavery raised surprising complexities for a system of property rules largely inherited from the British common law. Southern courts struggled with such questions as whether slaves were best regarded as a form of real or personal property, given that slaves were mobile like personal property but extremely valuable in an economic context in which most personal property was not. Very different legal rules applied depending on the non-obvious answer, and this difficulty foreshadowed later developments as the value of property other than land increased with the growth of the commercial economy. In dealing with slaves in the context of inheritances and mortgages, Southern judges often demonstrated a greater concern with maintaining family interests in a republican community than with respecting individual property interests in a liberal marketplace.

Somewhat differently, the human personality of slaves raised potential problems for traditional rules that assumed the interchangeability of property. Judges sometimes questioned the appropriateness of reducing individual slaves to an anonymous cash value in light of the personal character of individual slaves and the alleged bonds of affection between master and slave. The treatment of slaves as property illustrates the diverse influences of legal reasoning, economic functionalism, and ideological commitments.

Although Morris hopes to emphasize the property dimension of the law of slavery, he fully recognizes that slaves did not simply present a problem of property. Slaves also raised legal problems as individuals and as a social class. The need to maintain not only the racial hierarchy, but also the class hierarchy of the antebellum South required substantial interference with the property rights of individual slaveholders. Manumission in particular was severely restricted throughout the South, though laws and practice varied significantly over time and across jurisdictions.

Emancipation shifted the former slaves from property to people, and this was very much a matter of public policy and not of individual right. Southern judges and legislators frequently frustrated the efforts of individual slaveowners to free their slaves, and increasingly imposed duties on slaveholders to exercise control over their slaves. Slaveholders were understood to owe a duty to their slaves of protection and care, but more importantly they owed a duty to society to control the activities of those under their formal authority.

These elements of the law as part of a racial social order, however, must be laid beside the incorporation of slaves into the criminal justice system. Although often subject to harsh treatment, and always subject to serious legal liabilities, slaves were nonetheless accorded some rights and protections within the context of criminal trials. Although the criminal justice system sometimes served to reinforce the existing social structure, as in rape cases, it could also provide a forum for acquitting slaves accused of crimes. Morris paints a complex portrait of the law treating slaves as people, whether in reinforcing the authority of slaveholders, in adhering to legal procedures even in the case of slaves, or in assuring the maintenance of the Southern caste system.

Despite its many virtues, the book does suffer from some minor flaws. The second section on property is burdened by a mass of arcane legal terminology. For those not already familiar with the technicalities of property law, this section can often be bewildering. More generally, Morris’s offering is encyclopedic in scope and structure. The book makes a minimal effort to provide a larger narrative arc or analytical structure to pull these various pieces together. Although there are some implicit images of systems in transition, these elements are not made particularly explicit or extensively developed. A systematic consideration of the differences between the colonial system and the late antebellum period, or between the Piedmont and the Black Belt, would have been appreciated.

Despite these quibbles, this book is a significant achievement and will undoubtedly stand as one of the most significant works on Southern slave law. This book will be essential for those interested in law, race and slavery, and will be of great interest to those more generally interested in the interaction of law and society.