Southern Slavery and the Law

Southern Slavery and the Law, 1619-1860. By Thomas D. Morris. Chapel Hill, NC: The University of North Carolina Press, 1996.

In a general sense historians are familiar with slavery as an institution codified in Southern law. Thomas D. Morris, Professor Emeritus of History at Portland State University, seeks to more fully define slavery’s relation to the law in Southern Slavery and the Law, 1619-1860. Morris’ work is organized topically into four major sections: Sources: Racial and Legal, Slaves as Property, Slaves as Persons, and Manumission. Among his most important contributions is his observation that the legal framework for Southern slavery grew not out of Hebraic or Roman law (despite Southerners’ rhetorical claims) but out of the English common law. Consequently, the legal reasoning behind the institution remained both malleable and uncertain.

Perhaps the fundamental contradiction of American slavery was the conflicting statuses of the slave as person and the slave as chattel property. Morris makes clear that Southern law fundamentally reduced enslaved persons to property, yet the recognized fact that they were also moral agents or “thinking property” thoroughly complicated jurisprudence, making for a “messy and often complex” legal system (13). For instance, when it came to masters’ liability for damages done by their slaves, courts generally only ruled against the master if the damages occurred while slaves were under his direct orders or supervision but not if slaves were acting in their own capacity.

One element of Southern slavery readers can trace through Morris’ work is historical change in the relative harshness or leniency of the system and slave society toward slaves. Morris argues that in the late eighteenth century, the stabilization of slave sex ratios and families, “enlightenment humanism, liberal capitalism, and evangelicalism” made blacks seem “more human” to whites, and the theoretical result was that jurisprudence placed more restrictions on the treatment of slaves (170-71). Nevertheless, Morris leaves no doubt that “many proposed reforms, even those that arguably extended legal rights to slaves at the expense of their masters’ power, were designed to affirm, validate, and uphold the system of human bondage…” (438). Of course, Southern laws also cracked down on the doings and movement of slaves in the decades before the Civil War as proslavery militancy strengthened and events like Nat Turner’s Rebellion deepened fears of slave violence.

Morris’ Southern Slavery and the Law, 1619-1860 represents a substantial achievement, not the least because of the amazing breadth of his research. Though Morris apologizes for the relative scarcity of colonial sources for slave law, he manages to adequately address this period as well as the better documented decades after the Revolution. Despite the theoretical nature of his project, the inherent hypocrisy and inhumanity of the system remains glaringly apparent throughout the text. Morris for instance contrasts the intense preoccupation with the prospect of sexual offenses against white women with the limited laws regarding the rape of slave women by slave men or nonmasters (much less by their own masters), a pattern Morris rightfully calls “a mockery for black women” (321).

However, it must be said that this work is not the easiest for historians to use. Although Morris is a historian himself, this legal history reads very much like a dense legal tome. At least in this volume, he does not provide the same concise introductions and conclusions to chapters other writers offer which make it easier to glean useful information from their work. Significantly, Morris speaks often to the historiography of Southern slavery, addressing the contributions and arguments of such notables as Stampp, Elkins, Genovese and Fox-Genovese, and Fogel and Engerman. Unfortunately, he does not often weigh in on the debates he discusses.

The most useful addition Morris could have made would be charts or timelines illustrating significant developments in laws among slave states, such as laws prohibiting the manumission of slaves or teaching them to read. As is, distilling Morris’ findings represents a challenging prospect and limits accessibility to historians, especially in the interests of teaching. Nevertheless, the book’s topical organization makes it useful as a reference work for specific issues of slave law, and its breadth makes it a critical work for committed scholars of the Old South.

Jonathan Steplyk

Southern Slavery and the Law, 1619-1860. By Thomas D. Morris. Chapel Hill : University of North Carolina Press, 1996.

In his work, Southern Slavery and the Law, legal historian Thomas Morris explains the relationship between the slave system and the legal system present in the South before the Civil War. According to Morris, the Southern slavery system evolved with the Southern legal culture based upon the complexities of race, class relationships, the needs of capitalism, and internal dynamics in legal thought (8). Morris emphasizes the influence of English common law, property law, and negative notions of ‘blackness’ on the establishment of most Southern slave legal systems. Because of differences in state-to-state interpretation of the treatment or definition of slaves, Morris claims no legal definition of slavery ever developed in the South. Despite this lack of definition, Morris argues that Southern slavery primarily existed as an, “Institution of African Service” (440).

In his analysis of the possible impacts upon the Southern slave system, Morris provides a rather succinct description of the various ideologies surrounding slave systems throughout world history. Morris discusses the ideas of slavery put forth by philosophers, such as Kant, Hegel, and Aristotle. Additionally, Morris documents the qualities of the Roman and Hebraic legal systems. Although these theories did not provide a foundation for the Southern legal system, the ideas presented opportunity for the establishment of race, or color, based slavery. Aristotle’s theory of ‘natural slaves’ aided the Southern idea of slavery based on the natural ‘inferiority’ of African-Americans (17). Hebraic laws supplied proslavery apologists a justification for obedience of slaves (56). While the various ideas and theories contributed to a color-based slavery system, according to Morris, the English common law system provided the foundation for the American South’s slave legal system.

Contrary to claims of Roman influences, Morris determines that mainly English influences set the precedent for most of the South’s idea of a slave and legal system. Morris argues that early settlers based their thinking upon English common law and not in terms of ancient Roman slave law or European civil law (41). The English held negative notions of ‘blackness,’ and these unfavorable ideas predisposed the English to view Africans as inferior. Morris maintains that racism preexisted slavery, and slavery merely reinforced the racist perceptions (10). Nevertheless, basing the fitness for slavery upon color led to a number of contradictions in legal policy implementation.

According to Morris, the complicated Southern legal system resulted in the lack of a legal definition of slavery, or even, the words, ‘negro’ and ‘mulatto.’ Southerners deemed Africans as slaves, but repeatedly, the legal system lacked the ability to determine whether individuals held qualities to include them in the African group. Often, judges used observations of color as prima facie evidence of African-American status (24). But, inconsistencies existed within the legal doctrine as to what defined a ‘mulatto’ or ‘negro’ (13). Morris states that judges applied ideas found in common law rather than statutory law. Because of the complicated legal system and inconsistencies within legal doctrine, Morris rejects the idea of a law of black slavery (3).

Morris accounts for the importance of the idea of the slave as property. Morris believes that the concept of English property law was the central ‘incident’ in slavery (80). Throughout the work, Morris addresses the problems with thinking of humanity as property (2). According to Morris, slavery affected not only blacks but male and female whites and free blacks through their interracial sexual relationships, especially when a child resulted (3). Morris explains that miscegenation and manumission created further problems for drawing racial lines in the Southern slave legal system (19).

Since the work looks at the legalistic element of the Southern slavery system, Morris often utilized complex legal terminology and Latin phrases to explain the relationship. Morris attempts to clearly explain and define the terms present in his work. Despite this effort, the work remains rather difficult to understand for readers without any type of legal background. But, besides the relative linguistic complexities, the work is well-laid out and well-researched. Morris provides the reader with a legal history of the Southern slave legal system prior to the Civil War. Morris establishes the influence of the English common law and racial ideas on the Southern legal and slave systems. The Southern slave legal system affected not only the enslaved blacks but the entire Southern culture and way of life.