One by one, the things I predicted are coming to pass, which shows not that I am prescient but simply that I am paying attention. Aside from giving bits of money to candidates and larger bits to food programs for those in hard times there is really not much to do but wait for things to play out as they will. So it is, that this morning as I was taking my daily walk I found myself telling an imaginary audience various interesting things about slavery that I learned during my years as a professor of Afro-American studies.
Years ago, I read a fascinating book whose title is Southern Slavery and the Law by Thomas Morris. Morris notes that with the exception of several southern colonies, the colonists brought with them the English common law and they found that it posed a number of curious problems when applied to the institution of slavery. The first problem, of course, was that the English common law had no category of slavery and therefore its traditions had to be distorted and contorted to create a place for slavery. Here are several of the less well-known problems that the colonial legal scholars struggled with.
First of all, the question arose whether slaves were chattels real or chattels movable. Chattels real meant land (hence our term real estate). Chattels movable as the term suggests meant tables or chairs or coaches or the family silver or – in the famous case of Shakespeare – the second best bed. By long tradition, the law dictated that chattels real be the last possessions to be sold off. Now one would think that slaves would fall into the category of chattels movable since they clearly are not land but this posed a practical problem with which the legal experts had to wrestle. If a landowner died and left an estate, say to his oldest son, the law required that the outstanding debts be paid from the estate before it pass to the heir. But land without slaves was virtually useless to a southern plantation owner so the law was contorted to classify slaves as chattels real, thus ensuring that they would be the very last possessions sold off in the settling of debts.
Another problem posed by the traditions of the English common law was that in that tradition the legal status of the child followed that of the father. Thus, the bastard son of a nobleman and a serving girl was an aristocrat for all that he could not inherit since he had been born out of wedlock. But slaves were extremely valuable property and the child of a slave woman was a possession worth a good deal of money to the slave owner so, in one colony after another (there was of course no overarching system of laws for all of the colonies, and even after the establishment of the Republic it was a long time before federal laws governing such matters were enacted) the law was changed so that the status of the child followed that of the mother. In the 19th century, especially after the termination of the slave trade, a healthy adult male slave brought at auction a great deal more than a free laborer could earn in a year. The rule that came to be applied stated that the issue follows the womb, or since these were of course proper legal scholars and did all their dirty business in Latin, partus sequitur ventrem. Thus it was that a slave owner could rape his way into a considerable increase in his fortune.
Well, this is the sort of thing I think about as I walk. It is better than counting the number of steps. One sad footnote to all of this. I was so entranced by Morris's book that I argued successfully for having it added to the list of 50 major works that every first year doctoral student in our Afro-American Studies PhD program had to read and write a paper on. But the students hated the book so much that after one year it was removed from the list. You can't win them all.