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 mastersÆ 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 lawÆs 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.
MorrisÆs 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 manumissionùor, as was often the case, efforts at
manumission. MorrisÆs 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, MorrisÆs 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.
