Free to Enslave: The Foundations of Colonial American Slave Law

Abstract

Only a few decades ago, it was possible to write accounts of the culture or economy of the antebellum South which barely mentioned slavery or omitted "the peculiar institution" altogether. Today, slavery and race are rightly seen as central questions for the entirety of Southern-indeed American-history. Much of the scholarly attention to slavery has focused on the law. Historians have quarried legal records, including cases, statutes, probate inventories, and records of debtors' sales, for a wide range of social and economic history research projects. But scholars also have examined late eighteenth- and nineteenth-century slave law, Northern as well as Southern, for the legal reasoning and intellectual underpinnings of slavery. How did the common law permit, explain, and classify this uniquely problematic form of property? And how did mandarin appellate judges, so often the heroes of legal scholarship, apply their professional skills and moral sensibilities to cases involving slaves? The interpretive efforts have yielded diverse and often brilliant views, but the scholarship shares the assumption that the law was an important social institution buttressing slavery and that the precise configurations of slave jurisprudence therefore matter. This article approaches slave law with the contrary premise that, in the critical first century of English colonial slavery, the common law had very little of importance to say about slaves, and it seeks to explore the significance of that unexpected silence. Unlike many other slave societies, colonial America never developed a systematic law of slavery. Early American slave law was largely reactive and, in particular, played little role when the choice was made in the seventeenth century to turn to slavery. Rather than focusing on what substantive law of slavery existed, this paper instead explores how emigrants from the densely legalistic culture of the English common law erected slavery without direct legal authority. It asks how they and their descendants, unlike colonists elsewhere in the New World, maintained slavery without the sanction of a thorough slave law. If accurate, this claim that common law was irrelevant describes a seemingly paradoxical state of affairs. "English society was intensely 'law-minded', obsessed with legal considerations, legal rights, and legal remedies." Early seventeenth-century Englishmen regarded law and litigation as a principal means of dispute resolution, and the volume of litigation in royal courts continued to grow. Litigants sought more than speedy resolution; they seem to have viewed the law as an important means of social interaction. In the words of one leading historian, litigation "had everything that war can offer save the delights of shedding blood. It gave shape and purpose to many otherwise empty lives ... [and] remained the most popular of indoor sports . . . ." The swaggering, quarrelsome frontier entrepreneurs who clawed their way to the top of colonial Southern and Caribbean society shared these values, and they too were "law-minded," using local courts and law to consolidate property and position. And of course slaves and indentured servants were valuable investments for planters, capable of yielding enormous profits though raising unusual legal issues. For these practical reasons, we might expect a slave law to develop not long after the inception of slavery as an institution.