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Tuesday, July 5, 2011


The first Africans came to North America in 1619, but it was several generations before there were significant numbers of them in the colonial workforce. It seems natural to refer to that first group of twenty, and all who followed, as slaves, and they most certainly were unfree. But it would be half a century or more before the term "slave" acquired the full sense that we associate with the word. The earliest records of the colonies reveal a considerable confusion and uncertainty about the status of the African forced laborers, as compared with that of their unfree White fellow workers. The problem -- if I can put it that way -- was that the traditions of the English Common Law had no concept of chattel slavery. [We have already encountered this fact in our discussion of the ideological interpretation of Mansfield Park.] Bondage had a long and well-established history, but the Common Law lacked the useful idea of a human being as a piece of property, having no legal rights or standing in a court, and subject to being bought and sold like a horse or a plow or perhaps -- a touchy matter this -- like a piece of land. From the arrival of the twenty Africans to the final, bloody termination of chattel slavery in 1865, the lawyers and the courts first of the Colonies and then of the States struggled with this conundrum.

I want to spend some time discussing this rather specialized topic-- the legal status of "slave" --because as we shall see, a good deal turns on it in our critique of the doctrines of American exceptionalism and the notion that America was founded as the embodiment of the Idea of Liberty. Those interested in pursuing this topic further might consult either of two books: In the Matter of Color, by the distinguished jurist Leon Higgenbotham, and Southern Slavery and the Law by Thomas Morris. The latter book is an especially rich source for detailed information about the many, many legal problems surrounding the institution of slavery.

The English colonists brought with them their traditions of Common Law, and insofar as possible, sought to apply its teachings and precedents in the resolution of disputes in the Colonies. Among the many problems posed by the Common Law was the well established rule that the legal status of the child follows that of the father. In England, a son sired by a well-born father on a scullery maid was still well-born, for all that he might have to forego his claim to a share of the paternal estate. But once chattel slavery began to develop in the New World, it occurred to the masters that they would be turning their backs on valuable property if they were to allow their bastard sons and daughters to claim the status of freemen and women. Like all legal subjects, it would seem, this matter is almost unmanageably complicated, but eventually the principle came to be established that the children of a slave mother were the property of her owner, regardless of whom the father was [including the owner himself.] In the Latin of the law courts, the rule came to be partus sequitur ventrum [the issue follows the womb].

A second question of very great importance to wealthy slave owners was what sort of property slaves were understood to be in the law: chattels personal or chattels real. If slaves were chattels personal, like furniture, clothing, and carriages, then they were eligible to be sold off first to satisfy debts when an estate was being settled, and this could work a very great hardship on the widow, who might find herself to have inherited fertile land with no slaves to work it. But in the Common Law, it was well established that real property -- land -- was to be the last part of an estate to be sold to clear the debts of an estate. So despite the conceptual anomaly involved, the courts of some Colonies ruled that slaves were to be classified, for purposes of inheritance, as real property. I trust I do not have to keep repeating that in these arcane debates, the needs, desires, or interests of the slaves were not pertinent.

The central incoherence of slavery, of course, was the fact that it treated human beings as livestock, furniture, or land. The moral problems thus posed did not concern the slave owners overly, but there were legal as well as theological issues that required attention. The theological issues were raised by the seeming obsession of the slave owners with converting their slaves to Christianity. There was no question of converting their horses or sheep, of course, but when it came to their slaves, the owners just could not resist the temptation to bring them to Jesus. Ministers were hired to preach the message of the Gospels, with due care taken to emphasize those passages that counseled prayerful submission. Colossians 3:22 was a favorite: "Servants obey in all things [your] masters according to the flesh; not with eyeservice, as menpleasers; but in singleness of heart, fearing God." But the slaves, most of whom did in fact receive the Word and take it to their hearts, found quite a few passages in the Old and New Testaments that spoke in rather dangerous ways to their unquenchable thirst for freedom.

The legal problems arising out of the treatment of slaves as objects were endless, and throughout the entire two hundred and thirty-six year history of American slavery, never did get satisfactorily resolved. One of the trickiest questions was the status of the slaves in a court of law. They had no rights, of course, so there could not be a legal cause of action by a slave against either another slave or, it goes without saying, a White man. But since the slaves, laws or no laws, were actually sentient, rational people, they saw things, heard things, and knew things that could be pertinent to a legal deliberation. Suppose, for example, that one White man hired a team of horses belonging to another White man, for the purpose of doing some plowing. And suppose further that the team of horses were returned damaged in some way. The slave who was given the job of driving the team in the fields might be the only witness in a position to say whether the borrower had abused the lender's property. If the lender sued the borrower for damages to his team, could the slave be called to testify in court? On the one hand, why not, if indeed he was in a position to say what he saw? But on the other hand, surely a slave could not be sworn in and put on oath and called to testify any more than a horse or a chair could.

Even after the establishment of the United States of America in 1789, there was no Federal law of slavery. The thirteen States, formerly Colonies, regulated that institution, and almost everything else that was dealt with in courts, by a combination of Common Law traditions and positive [i.e., enacted] state laws. These issues remained a matter of great variation and contention until the institution of slavery itself was ended by the 13th Amendment to the Constitution, ratified in 1865.

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