1. State v. Jones, 1 Miss. (Walk.) 83, 83-85 (1820).

2. George v. State, 37 Miss. 316 (1859).

3. Stanley Elkins, Slavery 37-80 (1959), hereinafter Elkins, Slavery.

4. Id., at 71. Elkins recognized that particular institutional interests, not always coincident with the material self-interest of the institution or of those within it, are involved. Compare Marvin Harris, Patterns of Race in the Americas 17-18 (1964). As Genovese has noted, “Materialism and Idealism in the History of Negro Slavery in the Americas,” 1 J. Soc. Hist. 371 (1968), Harris' argument differs from Elkins' only in that Harris “offers us three collective forms of economic man;” though the underlying determinism is the same, the difference is important in showing Elkins' relative sophistication.

5. For a similar criticism of Elkins, see Eugene Genovese, “Rebelliousness and Docility in the Negro Slave,” 13 Civil War Hist. 293, 891, 395 (1967). I must emphasize that I am concerned here with the validity of Elkins' model, not with the accuracy of his use of it. In fact, recent studies of Cuba and Brazil indicate that Elkins' interpretation is not consistent with the facts. See, e.g., Franklin Knight, Slave Society in Cuba in the Nineteenth Century (1970); Stanley Stein, Vassouras: A Brazilian Coffee Country (1850-1900) (1957).

6. See Frank Tannenbaum, Slave and Citizen 62, 103 (1946). At times, his exposition slipped somewhat, id., at 48-52, but in a way that showed his determination to treat intellectual work as autonomous from other institutions. Tannenbaum, “The Balance of Power in Society,” 61 Pol. Sci. Q. 481 (1946), clearly shows that Tannenbaum was concerned with the impact of autonomous institutions, with their own internal demands, on what happens in society. This essay was published shortly after the publication of an early version of Slave and Citizen. Tannenbaum, “The Destiny of the Negro in the Western Hemisphere,” 61 Pol. Sci. Q. 1 (1946). (I am grateful to Professor Genovese for directing me to these essays.)

7. Slavery in the New World (Foner & Genovese eds. 1969) collects the most important articles generated by the work of Tannenbaum and Elkins. See also Genovese, The World the Slaveholders Made 3-115 (1969); The Debate Over Slavery: Stanley Elkins and the Critics (Lane ed. 1971).

8. William Goodell, The American Slave Code in Theory and Practice 51 (1853) hereinafter Goodell, Slave Code. Cf. id., at 36, 239, 245, 248.

9. Cf. text at note 44, infra.

10. See Goodell, Slave Code, at 24, 29-30; Hill v. Mitchell, 5 Ark. 608 (1844); Gullett v. Lamberton, 6 Ark. 109 (1845); Bob v. Powers, 19 Ark. 424 (1858).

11. This is one construction of the argument of Max Weber on Law in Economy and Society (Rheinstein ed. 1954).

12. La. Civ. Code, § 461 (1853, first enacted 1808). See also id., §§ 3256, 3314-34.

13. Monday v. Wilson, 4 La. 338, 341 (1832). See also Hyams v. Smith, 6 La. Ann. 362, 363 (1851) (“Slaves, although generally immovable by destination of law, are movable by their nature and are held in law to be so”); Penny v. Weston, 4 Rob. 165 (La. 1843); Michel v. Dolliole, 1 La. Ann. 459 (1846); Girard v. New Orleans, 2 La. Ann. 897 (1847). Sometimes slaves were held to be immovable. See Harper v. Destrehan, 2 Mart. N.S. 389 (1824); Cox v. Myers, 4 La. Ann. 144 (1849).

14. Cawthorn v. Deas, 2 Port. 276 (Ala. 1835).

15. For some other examples of a related phenomenon, see, e.g., David Cavers, The Choice-of-Law Process 59-87 (1965) (conflict of laws); Robert Bork, “The Rule of Reason and the Per Se Concept: Price Fixing and Market Division,” 74 Yale L.J. 775 (1965) (antitrust); O.W. Holmes, The Common Law 89-95 (Howe ed. 1963) (torts); Note, “Civil Disabilities and the First Amendment,” 78 Yale L.J. 842, 851 n.39 (1969) (constitutional law).

16. (1946).

17. The phrase “moral personality,” and similar terms, can be found in id., at vii-viii, 42, 97-98, 100, 104.

18. See David Brion Davis, “Slavery,” in The Comparative Approach to American History 121 (Woodward ed. 1968); Davis, The Problem of Slavery in Western Culture 60, 62 (1965).

19. Clearly, the reconciliation occurs in other areas of intellectual work, and the particular resolution discussed in this essay can be fully understood only in relation to the many other ways in which the tension was resolved. But no such full-scale intellectual history of the South exists, though it is badly needed. The narrow focus of this essay probably distorts the general framework of Southern thought. I hope, however, that the essay will illuminate some aspects of Southern thought and, further, that it will show some of the complexities involved in the larger and more interesting study.

20. Much of the prior misconception of Anglo-American slave law derives from the failure of Tannenbaum or Elkins to offer a clear definition of moral personality. I will follow the use that seems to come closest to Tannenbaum's idea: social arrangements recognize a being's moral personality when participants use words like “obligation” or “duty,” terms appropriate to ethical discourse, with respect to him. In the United Sates, treating the slave as having moral personality generally amounted to acknowledging that he was rational. In Spanish America, where the Christian heritage was stronger and Englightenment influence weaker, moral personality meant, essentially, that the slave had a soul. See Appendix infra.

21. See Charles S. Sydnor, Slavery in Mississippi (1933); Orville W. Taylor, Negro Slavery in Arkansas (1958). For Louisiana, see Joe G. Taylor, Negro Slavery in Louisiana (1963).

22. The material presented in this article does not, however, go far enough to permit me to claim this as one of my conclusions.

23. Though the modes correspond roughly to the accepted difference between the common law and the civil law, the identification is misleading. In Mississippi, for example, a common law jurisdiction, a shift from analogical to categorical reasoning occurred. See text at notes 11-20, infra. It is better to see the modes, as Llewellyn did, as competing legal “traditions” rooted in the way lawyers argue.

24. This article skirts the problem of identifying separate legal cultures, by focusing on particular jurisdictions. There seem to be differences among the jurisdictions, so that easy reference to a common law or a civil law tradition, or to an Anglo-American legal tradition, seems unjustified at this time. Examining other jurisdictions and other areas of the law would help in identifying the cultures.

25. Goodell, Slave Code, at 17.

26. Id., at 107-08. Compare Smith v. State, 9 Ala. 990 (1846) (since law does not recognize slave marriages, “wife” of slave may testify against husband) and State v. Samuel, 19 N.C. 170 (1836) with William v. State, 33 Ga. Supp. 85 (1864) (by statute, rules of evidence in trials of slaves are the same as those in trials of whites, and contubernal relation is recognized in criminal trials where it is important to advancement of justice; testimony of slave's wife should not be admitted against him).

27. See, e.g., John W. Blassingame, The Slave Community: Plantation Life in the Antebellum South 77-82, 90-91 (1972); Robert W. Fogel & Stanley Engerman, Time on the Cross, I, 126-44 (1974); Eugene D. Genovese, Roll, Jordan, Roll 450-58 (1974).

28. Goodell, Slave Code, at 108. This point is made explicit in connection with religious rights. Id., at 251-52.

29. See Genovese, Roll, Jordan, Roll, at 471-72 (summarizing psychological impact of uncertainty on sexual attachments between slaves).

30. These writers shared my concern for the rules and ways of arguing embodied particularly in reported cases. In addition, the cases are, of course, sources for particular incidents illustrating what actually happened to slaves in the South. I hope that I provide enough factual detail to convey some flavor of this, but it is not my primary concern, nor was it Goodell's or Stroud's. Instead, I focus on rules and arguments.

31. George Stroud, A Sketch of the Laws Relating to Slavery v (2d ed. 1856), hereinafter Stroud, Slavery Laws. I believe, from textual indications, that Stroud reprinted the first edition with no revisions in the body of the text, but adding some footnotes. See e.g., Slavery Laws at 70 n.

32. For example, nearly every Southern state had laws limiting the master's treatment of his slaves, to avoid abuse. Abolitionists dealt with these protective statutes in several ways. First, they said, the laws were obviously unenforceable. Slaves themselves were, in general, the only witnesses who could establish that some protective law had been violated, but slaves could not testify against their masters, or indeed against any white person. See, e.g., id., at 13-14; Goodell, Slave Code, at 157-59. See also Elkins, Slavery, at 56-57 (1959). Second, since slaves could not sue, enforcement of the law depended on the willingness of some outsider to come forward to bear the costs of litigation. The only people with resources adequate to the chore were slaveholders, and they could not be expected to engage in what amounted to an assault on the right of another master to treat his slaves as he wished. See, e.g., Stroud, Slavery Laws, at 19-20. Third, putting aside the law, there was other evidence of mistreatment of slaves. Thus, the protective laws had no effect on what masters actually did. See, e.g., Goodell, Slave Code, at 141-48. Finally, as Goodell put it, “Slaves are better protected as property than they are as sentient beings.” Id., at 201. See also Elkins, Slavery, at 58-59.

There are difficulties with these points that the abolitionists apparently did not realize. Stroud cited a case in which a master was penalized for not supplying his slaves with adequate food or clothing. Stroud, Slavery Laws, at 18, citing State v. Bowen, 3 Strob. 574 (S.C. 1848). An overseer provided the evidence supporting the charge. Before we could dismiss the protective laws as unenforceable for want of testimony, we would have to know how often whites saw maltreatment, either as overseers, neighbors, or bystanders. Similarly, we might infer from the fact that these laws did not provide for the reimbursement of the costs of litigation, not that the laws were designed as shams, but that the legislators were confident that the social conscience of most slaveholders would lead them to defend slaves mistreated by other masters. And, of course, the protection of the masters' property interest in slaves surely benefited the human interests of the slaves.

33. Two additional points about prior uses of case law should be noted. First, while I have focused on the abolitionist polemicists, whose errors might be forgiven because of their noble purposes, Stanley Elkins, who purported to set the argument on a new course, Slavery, at 24, made nearly every mistake in the four pages that he devoted to “matters of police and discipline” that Goodell had made a hundred years before. For example, both Goodell and Elkins quoted extensively from Judge Ruffin's opinion for the North Carolina Supreme Court in State v. Mann, discussed text at note 120, infra. See Goodell, Slave Code, at 169-74; Elkins, Slavery, at 57. The opinion was shot through with distinctions between the moral and legal constraints on masters, and concluded with a reference to the legislature's power to enact a law making cruel treatment of slaves an offense, but Ruffin's appeal to policy clearly announced his commitment, and that of his court, to a harsh legal regime. Ruffin apparently had second thoughts, for ten years later he upheld a master's conviction for murdering his own slave, State v. Hoover, 20 N.C. (4 Dev. & Bat.) 500 (1839). Neither Goodell nor Elkins referred to the later views of Judge Ruffin, nor to the possibility he held out of legislative modification of the result in State v. Mann. Even putting such things aside, we still have no reason to think that the views of the North Carolina Supreme Court in 1829 were typical of Southern law as a whole, and, indeed, there were a fair number of cases, contemporaneous with State v. Mann, holding precisely the opposite and explicitly conflating the moral and legal constraints on masters.

Second, previous writers have selectively and inaccurately cited the cases. My favorite example of this comes from Goodell. In discussing the legal restraints on masters, he cited four cases from South Carolina. His source was Jacob Wheeler, Practical Treatise on the Law of Slavery (1837), a simple compilation of cases. Goodell accurately reproduced a statement that no common law offense of assault and battery against a slave existed because the peace of the state was not broken thereby, Goodell, Slave Code, at 168, quoting State v. Maner, 2 Hill 453 (S.C. 1834). He then stated that this rule was applied in “the case that next follows,” State v. Mann. Id., at 169. The only problem is that the case that “next follows” in Wheeler's book was a further quotation from the South Carolina cases holding that, while the common law did not recognize an offense in assault on a slave, “yet by the act of 1821, an assault with an intent to murder a slave is indictable,” Wheeler, supra, at 244, quoting State v. Maner, 2 Hill 453 (S.C. 1834). The distinction between common law and statutory offenses is important, but the cases hardly establish what Goodell thought they did, a total failure of Southern law to protect slaves from assaults. See also Elkins, Slavery, at 57.

Goodell's inability to understand the more arcane aspects of standard legal propositions led him into more subtle errors. He sharply attacked as a sham a North Carolina statute defining as murder the malicious killing of a slave, in part because it excluded deaths resulting from moderate correction. This, he thought, indicated that moderate correction was so severe that it might take away the life of a slave. Goodell, Slave Code, at 180-82; see also Elkins, Slavery, at 58. I would have thought that the exclusion was designed to eliminate liability for killing the thin-skulled or hemophiliac victim beloved of law professors, the victim who would succumb to correction that would only discipline, but not kill, the general run of slaves. Cf. Wayne LaFave & Austin Scott, Criminal Law 392-93 (1972).

34. See also Genovese, Roll Jordan Roll, at 48: the “positive value [of the slave codes] lay not in the probability of scrupulous enforcement but in the standards of decency they laid down in a world inhabited, like most worlds, by men who strove to be considered decent.”

35. Genovese, supra, note 7, at 119.

36. I examined every case mentioned in Helen Catterall, Judicial Cases Concerning American Slavery and the Negro (1926-32) in which a legal rule concerning slavery appeared to be at issue. Many of the cases there were included solely because the report of the facts indicated that a slave had been owned by one of the parties, even though the case did not involve the law of slavery. These were eliminated by a preliminary screening. Many of the cases that survived did not, in fact, involve the law of slavery in any interesting way, which I discovered only after reading the cases. I examined cases from Virginia, North Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and Arkansas. In addition, I examined the laws of those states, insofar as they were easily available at the law libraries of Yale University, the University of Wisconsin, and the Law Library at the Wisconsin State Capital. This did not result in a comprehensive treatment of statutory developments, so that statutory law is not a major focus of this article. Finally, I have been told that Catterall does not include every case on slavery. However, for the period between 1810 and 1860, there is no reason to believe that she omitted anything of importance. Other sources relating to legal matters can, of course, be employed with great effect. James Johnson, Race Relations in Virginia and Miscegenation in the South 1776-2860 (1970), for example, uses petitions to the legislature for permission to manumit slaves to demonstrate how widespread miscegenation was and to show what kinds of personal relations frequently developed between master and slave.

37. For examples of opinions rather clearly directed Northward, see Anthony v. State, 9 Ga. 264, 268 (1851) (statute giving slaves and free persons of color same rights in capital cases as white person shows “the humanity of our laws” and refutes “the slanderous imputations of the ignorant, the fanatical, or the wilfully base”); Jim v. State, 15 Ga. 535, 541 (1854) (“The legal principles which we shall deem it necessary to assert … may shock those who are prejudiced against the institution of slavery—who are unmindful of the causes and the means which influenced, and the men who established that institution in our country—who are blind to the difficulties in dealing with the subject on the part of those whose interests are involved in it, and their right to deal with it for themselves, according to their consciences, and in view of the solemn responsibilities under which they rest to their Maker”); Sanders v. Ward, 25 Ga. 109 (1858) (certain cases decided before “the fell demon—abolitionism—had … reared its monster head”); Barclay v. Sewell, 12 La. Ann. 262 (1857) (“present policy is hostile to indiscriminate manumission” in consequence of “injudicious and impertinent assaults from without upon an institution thoroughly interwoven with our interior lives”).

Cf. Vance v. Crawford, 4 Ga. 445, 459 (1848) (“… while we concede that the condition of our slaves is humble, still it is infinitely better than it would have been but for this very system of bondage, better than the lower orders of Europe, and better far than it would be, if they were emancipated here, ‘destroying others, by themselves destroyed‘”); Neal v. Farmer, 9 Ga. 555, 582 (1851); Peter v. Hargrave, 46 Va. (5 Gratt.) 12, 19 (1848):

A rule giving mesne profits to slaves, after a recovery of freedom, would operate harshly and often ruinously in regard to the master. The arrangements, management and expenditures of slave owners are, in a great measure, essentially different from those of persons who employ free labour in their occupations and service. The latter are, for the most part, in the habit of engaging individuals, from time to time, as the occasion may seem to require, and of dismissing them when found unsuitable or unnecessary; and are in no wise bound to provide gratuitously for their wants and comforts, or the maintenance of their families. The owner of slaves, on the contrary, is usually condemned to a constant, permanent and anxious burthen of care and expenditure. It seldom happens that more than a small proportion of them are capable of productive labour; while provision must be made for the food, clothing and shelter of all; for the helplessness of infancy, the decrepitude of age, the infirmities of disease; to say nothing of the heedlessness, slothfulness and waste natural to persons in their condition. Hence it is that the scantiness of net profit from slave labour has become proverbial, and that nothing is more common than an actual loss, or a benefit merely in the slow increase of capital from propagation.

These citations are significant in light of the frequent use in Southern propaganda of the comparison between slave and free labor. See, e.g., George Fitzhugh, Cannibals All! 15-20 (Woodward ed. 1960); William Grayson, The Hireling and the Slave (1856). Excerpts from the latter can be found in Slavery Defended: The Views of the Old South 57-68 (McKitrick ed. 1963).

38. In light of the general understanding that Southern society underwent a marked reactionary change after 1831, cf. Genovese, Roll, Jordan, Roll at 50, 399-400 (1974), it is important to get this point clear. The cases do assert the moral value of slavery more vigorously after 1831, though similar assertions were made in gentler tones prior to that time. But the lines of development were apparent before 1831, and one can see the shadowy outlines of what later was made explicit even in the earlier cases. Cf. id., at 52.

39. Commonwealth v. Turner, 26 Va. (5 Rand.) 678 (1827); State v. Mann, 13 N.C. 263 (1829).

40. Neal v. Farmer, 9 Ga. 555 (1851).

41. Morgan v. Rhodes, 1 Stew. 70 (Ala. 1827); State v. Flanigin, 5 Ala. 477 (1843); State v. Jones, 5 Ala. 666 (1843). Flanigin and Jones were prosecutions under statutes that the court held were simply declarative of the common law.

42. Souther v. Commonwealth, 48 Va. (7 Gratt.) 673 (1851); State v. Reed, 9 N.C. 454 (1823); State v. Hoover, 20 N.C. 500 (1839).

43. Cf. State v. Hale, 9 N.C. 582 (1823) (stranger may be indicted for common law offence of battery committed on a slave).

44. The court adverted to a legislative decision that slaves could commit crimes, but that decision does not compel the conclusion that slaves are reasonable creatures whose killing amounts to murder. A court might have read the legislative decision only to establish the necessity for disciplining slaves and protecting society, a necessity that could then be used as Judge Ruffin used it, to show the impropriety of judicial inquiry into the treatment of slaves.

45. Miss. Rev. Code, ch. 54, 73 (1824). See also Thomas Cobb, An Inquiry Into the Law of Negro Slavery in the United States of America 88-90 (1858).

46. Minor v. State, 36 Miss. 630 (1859).

47. Jones is cited only in the middle of a quotation from Cobb.

48. Mitchell v. Wells, 37 Miss. 235 (1859).

49. George v. State, 37 Miss. 316 (1859). Some erosion occurred in the course of deciding a confusing set of cases on the distinction between implied and express malice, where express malice was an essential element of the statutory crime. See Act of Jan. 28, 1829 (assault with intent to kill). See also Anthony v. State, 21 Miss. (13 Sm. & M.) 263 (1850) (express malice not alleged; conviction reversed); Ike v. State, 23 Miss. 525 (1852) (express malice alleged but not an element of offense of assaulting overseer in resisting chastisement); Jesse v. State, 28 Miss. 100 (1854) (malice an element of common law crime but not alleged; conviction reversed); Sarah v. State, 28 Miss. 267 (1854) (express malice not alleged; conviction for preparing poison with intent to kill reversed).

50. George v. State, 37 Miss. 316 (1859). The argument was drawn from Cobb, supra, note 45, at 83-84.

51. George v. State, 37 Miss. 316, 320 (1859). In Cobb, supra, note 45, the passage, quoting from Neal v. Farmer, 9 Ga. 555, 579 (1851), reads: “Experience has proved what theory would have demonstrated, that masters and slaves cannot be governed by the same laws. So different in position, in rights, in duties, they cannot be the subjects of a common system of laws.”

52. See Note, “Swift v. Tyson Exhumed,” 79 Yale L.J. 284, 297-98 (1969).

53. Wesley v. State, 37 Miss. 327, 347-48 (1859).

54. Acts 102, ch. 62 (1860).

55. The rule that a complainant could not sue for damages resulting from the defendant's felonious acts unless he had pursued the criminal action to conviction or acquittal was a relic of the time when all criminal actions were prosecuted by private parties. The rule meant that the private parties could not settle their claims without satisfying “the justice of the country,” Middleton v. Holmes, 3 Port. 424 (Ala. 1836).

56. Neal v. Farmer, 9 Ga. 555, 582 (1851).

57. See, e.g., State v. Abbott, 1 Ga. (1 R. Charlton) 244 (Super. Ct. Ga. 1822) (denial of bail to master affirmed); Bailey v. State, 20 Ga 742 (1856) (voluntary manslaughter); Bailey v. State, 26 Ga. 579 (1858) (murder; rejects plea of autrefois acquit from prior reversal of conviction for voluntary manslaughter reversed on appeal). Cf. Jordan v. State, 22 Ga. 545 (1957) (overseer convicted of voluntary manslaughter, with court regretting that it cannot do more than affirm in this case of clear murder); Camp v. State, 25 Ga. 689 (1858).

58. William v. State, 18 Ga. 356 (1855).

59. Castleberry v. Kelly, 26 Ga. 606 (1858).

60. See, e.g., Hill v. State, 28 Ga. 604 (1859) (general principles on variance between indictment and proof relied on in case involving slave convicted as principal in murder). Cf. Baker v. State, 15 Ga. 498 (1854).

61. Commonwealth v. Turner, 26 Va. (5 Rand.) 678 (1827). The court had avoided the question in Commonwealth v. Booth, 4 Va. (2 Va. Cas.) 394 (1824), involving beatings by a person who had hired a slave. The court held that a variance between indictment and proof was fatal; because the indictment did not state that the defendant had hired the slave, the gravamen of the offense charged was beating without a right to inflict blows, whereas the gravamen of the offense proved was an excessive beating.

62. Commonwealth v. Turner, 26 Va. (5 Rand.) 678, 679, 686 (1827).

63. See Note, supra, note 52, at 286-87.

64. See also Commonwealth v. Turner, 26 Va. (5 Rand.) 678, 686 (1827) (“It is greatly to be deplored that an offense so odious and revolting as this, should exist to the reproach of humanity. Whether it may be wiser to correct it by legislative enactments, or leave it to the tribunal of public opinion, which will not fail to award the offenders its deep and solemn reprobation, is a question of great delicacy and doubt. This Court has little hesitation in saying that the power of correction does not belong to it ….”). The dissenting judge thought that history provided a firm basis for the indictment, so that judicial creation of crimes was not the issue, and that nothing “injurious to the peace of society” would result from affirming the conviction; after all, he noted, juries were composed of slave owners, and without legal redress for cruelty, slaves might revolt. Id. at 690.

65. Souther v. Commonwealth, 48 Va. (7 Gratt.) 673, 680 (1851).

66. See, e.g., State v. Jowers, 33 N.C. 555 (1850); Note, supra, note 52.

67. State v. Reed, 9 N.C. 454, 458 (1823). Cf. Murphy v. Clark, 9 Miss. (1 Sm. & M.) 221, 223 (1843); Kelly v. State, 11 Miss. (3 Sm. & M.) 518,525-26 (1844).

68. State v. Hale, 9 N.C. 582 (1823).

69. W. LaFave & A. Scott, supra note 33, at 608 (1973).

70. State v. Weaver, 3 N.C. 54 (1798).

71. State v. Boon, 1 N.C. 246 (1801).

72. State v. Reed, 9 N.C. 454 (1823). The court relied on a minor change in the wording of the relevant statute when in was reenacted in 1817.

73. State v. Hoover, 20 N.C. 500 (1829). Cf. State v. Robbins, 48 N.C. 249 (1855).

74. State v. Hale, 9 N.C. 582 (1823).

75. Id., at 583.

76. Id., at 584.

77. State v. Mann, 13 N.C. 263, 265-67 (1829). In Alabama, a master could be indicted for mayhem on a slave, committed while the slave was retreating; in the case at bar, the force used was inappropriate to the slaved offense. Eskridge v. State, 25 Ala. 30 (1854).

78. See text at notes 80-82, infra.

79. State v. Tackett, 8 N.C. 210, 217 (1820).

80. State v. Will, 18 N.C. 121, 165 (1834).

81. Id., at 172.

82. State v. Jarrott, 23 N.C. 76, 82, 86 (1840). Cf. State v. John, 30 N.C. 330 (1848) (slave killed another slave who had been having an affair with assailant's wife; court said that it might have mitigated offense had assailant discovered them in flagrante delicto); State v. Caesar, 31 N.C. 391 (1849) (Ruffin, C.J., dissenting: since slaves are ordinarily subservient, it shows malice when they strike back). The court never applied rules to free persons of color different from those applied to slaves, see State v. Jowers, 33 N.C. 555 (1850), but it hinted that in some cases different rules might be appropriate, State v. Davis, 52 N.C. 52 (1859). But cf. State v. Fuentes, 5 La. Ann. 427 (1850).

See also State v. Abram, 10 Ala. 928 (1847) (slave's conviction for mutilating a white person's ear by biting off a small part, while defending himself against assault by white, reversed; “Slave though he be and as such bound to obedience, and forbidden to resist those having lawful authority over him, he is nevertheless a human being”).

83. See, e.g., Ned v. State, 7 Port. 187 (Ala. 1838) (explicitly declining to decide whether different rules on double jeopardy apply in slave cases); Ex parte Vincent, 26 Ala. 145 (1855); Bob v. State, 29 Ala. 20 (1856) (applying general principles to decide that involuntary manslaughter cannot be proved under indictment charging slave with murder; in addition, overruling Bob v. State but without adverting to questions of slavery).

84. 31 Ala. 323 (1858).

85. Professor Genovese has shown that twelve-year-olds were generally regarded as children, and that masters did not requre of them what was required of older slaves. Genovese, Roll, Jordan, Roll, at 502-03 (1974). Godfrey suggests that the legal system had not adapted to this fact, and still treated slave children under ordinary common law rules. See, e.g., LaFave & Scott, supra note 33, at 351-52.

86. Convictions of slaves for crimes were often reversed on grounds not denying that they were persons. See, e.g., Sullivant v. State, 8 Ark. 400 (1848) (attempted rape); Charles v. State, 11 Ark. 389 (1850); (rape, reversed on evidence that slave simply touched woman); Pleasant v. State, 13 Ark. 360 (1853), 15 Ark. 624 (1855) (rape); Bone v. State, 18 Ark. 109 (1856) (assault).

87. Henry v. Armstrong, 15 Ark. 162, 166 (1854).

88. Sarah v. State, 18 Ark. 114, 117 (1856). The fact of the master's orders might lead a court to mitigate the penalty, but it did not absolve the slave of responsibility. Id. In this case the court analogized slaves and servants but refused to do so in another, McConnell v. Hardeman, 15 Ark. 151 (1854), holding masters not liable for the unauthorized trespasses of their slaves. See also Graham v. Roark, 23 Ark. 19 (1861).

89. See text at notes 134-137, infra.

90. Bone v. State, 18 Ark. 109, 111 (1856).

91. La. Digest (1928), Black Code—Crimes, § 1, See also id., §§ 17,18 (slave's duty to obey master qualified when ordered to commit a crime).

92. State v. Moore, 8 Rob. 518, 521 (La. 1843) “Slaves were considered as persons enjoying all the rights and privileges of citizens, of which they had not been deprived by express legislation.” Id., at 522.

93. State v. Dick, 4 La. Ann. 182 (1849).

94. See, e.g., State v. Gilbert, 2 La. Ann. 244 (1847) (confession made while being beaten inadmissible); State v. Isaac, 3 La. Ann. 359 (1848) (master interrupted confession; incomplete statement inadmissible); State v. Nelson, 3 La. Ann. 497 (1848) (overseer ordered slave to confess by saying, “It will be better for him to confess,” but fact that slave was held in stocks at the time is irrelevant). Cf. State v. George, 15 La. Ann. 145 (1860) (confession to private individual who arrested slave is inadmissible). For further discussion of slave confessions, see text at notes 159-164, infra.

95. State v. Jonas, 6 La. Ann. 695, 698-99 (1851). See also State v. Adeline, 11 La. Ann. 736 (1856); State v. Kitty, 12 La. Ann. 805 (1857). Cf. Gregory v. Baugh, 29 Va. (2 Leigh) 665 (1831) (“our judges (from the purest motives, I am sure) did, in favorem libertas, sometimes relax, rather too much, the rules of law, and particularly the law of evidence. Of this, the court in later times, has been so sensible, that it has felt the propriety of gradually returning to the legal standard, and of treating these precisely like any other questions of property”; dissenting opinion).

96. State v. Kentuck, 8 La. Ann. 308 (1853).

97. See, e.g., State v. Jerry, 3 La. Ann. 576 (1848); State v. Jackson, 6 La. Ann. 593 (1851); State v. Lethe, 9 La. Ann. 182 (1854); State v. Bob, 11 La. Ann. 192 (1856); State v. Oscar, 13 La. Ann. 297 (1858). See also State v. Bill, 15 La. Ann. 114 (1860), overruling State v. George, 8 Rob. 535 (1844) (juror who says he will insist on death penalty if slave convicted cannot be discharged for cause).

98. Laura v. State, 26 Miss. 174, 177 (1853). See also Peter v. State, 4 Miss. (3 How.) 433 (1839) (conviction reversed because prosecutor's name not on indictment). Compare State v. Peter, 14 La. Ann. 521 (1859) (judge who participated at former trial as judge and juror can preside again).

99. But see State v. Henderson, 13 La. Ann. 489 (1858), for an expression of the Louisiana court's concern that procedural rules on taking appeals might affect both slaves and free men. See also State v. King, 12 La. Ann. 593, 595 (1857) (“We regret to be obliged to set the prisoner at liberty, but it is far wiser and safer for society, and the rights of the citizen, to allow him to be liberated, than to violate a great principle in the interpretation of statutes”; slave's conviction for stabbing white man reversed).

100. See generally George Dargo, Jefferson's Louisiana (1975).

101. The Louisiana Supreme Court did not have jurisdiction over criminal appeals until 1846. La. Const., art. IV, § 2 (1812); La. Const., tit. IV, art. 63 (1845). For attempts before 1845 to appeal criminal cases, see State v. Judge of Commercial Court, 15 La. 192 (1840); State v. Williams, 7 Rob. 252 (La. 1844) (including a long discussion of appeals in criminal cases).

102. Again it is important to emphasize that I am here concerned with ideology, not behavior. A pattern of brutal behavior does not itself show that slaveowners believed that slaves lacked moral personality. People often act in ways contrary to their beliefs and values, just as they often say things that they do not believe. If slaveowners did in fact systematically beat their slaves beyond what was needed to command them, the cases would only show the inevitable hypocrisy of ideology. See text at note 35 supra.

103. Oliver v. State, 39 Miss. 526, 540 (1860).

104. See also Gibson v. Andrews, 4 Ala. 66 (1842) (master “is under both a moral and legal obligation to supply [slave's] necessary wants,” doctor can therefore recover from master for providing medical care while master absent); Mitchell v. Tallapoosa County, 30 Ala. 130 (1857) (doctor must recover from master's estate, not from county, for providing care to slave jailed for master's murder); Hendricks v. Phillips, 3 La. Ann. 618 (1848) (Civil Code § 173, saying that master may correct slave “though not with unusual rigor, nor so as to maim or mutilate him, or to expose him to the danger of loss of life, or to cause his death,” said to be “dictated by considerations of humanity, and restricts the authority of the master”).

105. Gorman v. Campbell, 14 Ga. 137, 143 (1853). See also Collier v. Lyons, 18 Ga. 648 (1855); Spencer v. Pilcher, 35 Va. (8 Leigh) 565, 584 (1837) (“Humanity to the slave requires this, and the security of the rights of property imposes other restrictions on the bailee, for the sake of the owner”).

106. Collins v. Hutchins, 21 Ga. 270 (1857).

107. Heathcock v. Pennington, 33 N.C. 640 (1850); Couch v. Jones, 49 N.C. 402 (1857). Cf. George v. Smith, 51 N.C. 273 (1859).

108. Cf. Seay v. Marks, 23 Ala. 532 (1853); Green v. Allen, 44 N.C. 228 (1853) (explaining recent change in statute by reference to increasing use of hired slaves in mines, railroads, etc.); Alston v. Balls, 12 Ark. 664 (1852).

109. See, e.g., George v. Elliot, 12 Va. (2 Henn. & Munf.) 5 (1806); Ragland v. Parish Cross, 4 N.C. 121 (1815); Outlaw v. Cook, Minor 257 (Ala. 1824); Perry v. Hewlett, 5 Port. 318 (Ala. 1837); Berry v. Diamond, 19 Ark. 262 (1857). The hirer was not, however, liable for the value of the slave, unless, of course, he caused the slave's death. One case suggests that jury nullification of the rule requiring the hirer to pay the full rental amount sometimes occurred. Brooks v. Smith, 21 Ga. 261 (1857) (verdict for owner in amount of one-sixth of rental amount, for slave who ran away after two months of oneyear term of hire).

110. See Outlaw v. Cook, Minor 257, 258 (Ala. 1824) (“As applicable to contracts for the hire of slaves, [the settled rules] appear to be supported by sound considerations of humanity and policy”).

111. Lennard v. Boynton, 11 Ga. 109 (1852).

112. Curry v. Gaulden, 17 Ga. 72 (1855). Cf. Thompson v. Young, 30 Miss. 17 (1855) (in recapturing runaway, pursuer may not kill in absence of danger to himself).

113. See, e.g., Tallahassee R.R. v. Macon, 8 Fla. 299 (1859) (“spirit of enlightened humanity'*); Latimer v. Alexander, 14 Ga. 259 (1853); Dabney v. Taliaferro, 25 Va. (4 Rand.) 256 (1826). Cf. Copeland v. Parker, 25 N.C. 513 (1843); Meeker v. Childress, Minor 109 (Ala. 1823); Hogan v. Carr, 6 Ala. 471 (1844); Nelson v. Bondurant, 26 Ala. 341 (1855); Walker v. Smith, 28 Ala. 569 (1856); Wilkinson v. Moseley, 30 Ala. 562 (1857); Governor v. Pearce, 31 Ala. 465 (1858); Watkins v. Bailey, 21 Ark. 274 (1860).

114. Rand v. Oxford, 34 Ala. 474 (1859).

115. I am endebted to David E. Kendall for this observation. For further examples, see Kiper v. Nuttall, 1 Rob. 46 (La. 1841) (duty to provide medical treatment as a condition for rescinding sale on ground that slave had pre-existing illness derived from “the course and duties prescribed by humanity”; purchaser's duty is such “as might be expected from a prudent father of a family”); Bayon v. Prevot, 4 Mart. 58 (La. 1815) (it would violate “the plainest dictates of humanity” to require person who recaptured runaway slave to confine him closely when, because of dysentery, slave could not safely be so confined).

116. Cf. Albert Lord, The Singer of Tales (1960).

117. As before, text at note 99 supra, I treat Louisiana law as a mature system of law even in the early years of the century.

118. Jourdan v. Patton, 5 Mart. 615, 617 (La. 1818). Cf. Tonnelier v. Maurin, 2 Mart. 206 (La. 1812).

119. Vail v. Bird, 6 La. Ann. 223, 224 (1851).

120. Ingram v. Mitchell, 30 Ga. 547 (1860). Contra, Doughty v. Owen, 24 Miss. 404 (1852) (“Any other rule would place the criminal code as to slaves completely at the mercy of their masters, and society could only be protected against the enormities of this class of our population in those cases in which the private interest of their masters would not be prejudiced by consenting that the law might be administered, and its penalties inflicted on the guilty”).

121. But cf. State v. Leigh, 20 N.C. 126 (1838) (master who is also magistrate cannot be prosecuted for dereliction of public duty for refusing to issue warrant for arrest of one of his slaves who had killed another of his slaves; “[p]assing by the interest of the owner, their relation imposes on him the obligation of the slave's defense …. Prosecution and defense are so incompatible that the two duties cannot be incumbent on the same person”).

122. Lingo v. Milerr & Hill, 23 Ga. 187, 190 (1857).

123. Miss Rev. Code, ch. 37, art. 20 (1948). See also La. Rev. Stat. 57 (1845) (master may receive up to two-thirds of slave's assessed value; repeals earlier statutes, e.g., La. Digest, Black Code—Crimes, § 12, requiring compensation of full value up to $500, which may be a judgment that no slave executed for crime could possibly be worth more than $500).

124. State v. Jim, 48 N.C. 348 (1956) (question of whether master's pecuniary interest disqualifies him as witness on behalf of his slave would not arise where master compensated for execution); Flora v. State, 4 Port. 111 (Ala. 1836) (compensation “promote[s] public justice, by making it compatible with private interest”). See also Genovese, Roll, Jordan, Roll, at 632-33 (1974).

125. Cf. Atchison v. Potter, 14 Miss. (6 Sm. & M.) 120 (1846) (statute making master liable for costs of prosecuting slave is designed to make immediate controller of slave watchful and thereby to prevent consequences arising from slave's “ignorance of moral obligation”). See also State v. Hyman, 46 N.C. 59 (1853) (master's permission for slaves to buy liquor at any time during year is no defense to prosecution of selling liquor to slaves without master's permission; since liquor leads to vice, crime, insubordination, and weakness, slaves “should be guarded well, both as moral agents and as objects of property”).

126. Flora v. State, 4 Port. 111 (Ala. 1836); State v. John, 2 Ala. 127 (1841).

127. Cf. Dan Dobbs, Remedies 884-85 (1973).

128. Allen v. Freeland, 24 Va. (3 Rand.) 170 (1825).

129. Earlier the Virginia court had recognized that equity would not order that slave families be separated under a will requiring an equal division of the estate. Fitzhugh v. Foote, 7 Va. (3 Call) 13, 17 (1801) (“… an equal division of slaves, in number or value, is not always possible, and sometimes improper, when it cannot be exactly done without separating infant children from their mothers, which humanity forbids, and will not be countenanced in a Court of Equity”). See also La. Digest (1828), Black Code, § 9 (considerations of humanity forbid sale of children under ten years of age away from their mothers). Nonetheless, the child's interest was to be protected even if it required a separate sale. Kellar v. Fink, 3 La. Ann. 17 (1848). Cf. Montan v. Whitley, 12 La. Ann. 175 (1857).

130. Allen v Freeland, 24 Va. (3 Rand.), at 173.

131. Id., at 176.

132. Id., at 178-79.

133. Bowyer v. Creigh, 24 Va. (3 Rand.) 25 (1825) (general discussion of equity, followed by statement that “[i]t must be obvious to every one, that various causes may exist, to give slaves a value in the eye of the master, which no estimated damages could reach. The slave may have been raised by him, and may possess moral qualities, which, to his master, render him invaluable. He may have saved the life of the master or some one of the family, and thus have gained with them a value above money and above price”); Almond v. Almond, 25 Va. (4 Rand.) 662 (1826) (wife entitled to alimony, but not to specific woman slave, on separation from husband where it is unsafe for her to return to him).

134. Randolph v. Randolph, 27 Va. (6 Rand.) 194, 201-02 (1828). The passage includes the following as well: “The master has not only his pecuniary interest to consult, and his own affections and predilections to gratify … but, he owes a duty to the slave, as well as the slave does to the master, and which he ought to perform …”

135. Harrison v. Sims, 27 Va. (Rand.) 506, 507 (1828). See also Summers v. Bean, 54 Va. (13 Gratt.) 404 (1856).

136. It could of course be disproved by the opposing party, but given the owner's special knowledge and the irrationality of feelings, it can be assumed that this would rarely happen.

137. McRea v. Walker, 5 Miss. (4 How.) 455, 456 (1840). See also Williams v. Howard, 7 N.C. 74 (1819). Cf. Sanders v. Sanders, 20 Ark. 610 (1859).

138. Sevier v. Ross, Fr. Ch. Rep. 519 (Miss. 1843).

139. Murphy v. Clark, 9 Miss. (1 Sm. & M.) 221 (1843).

140. Bertrand v. Arcueil, 4 La. Ann. 430 (1849).

141. Moore v. Dudley, 2 Stew. 170 (Ala. 1829).

142. Baker v. Rowan, 2 Stew. & P. 361 (Ala. 1832).

143. Hardeman v. Sims, 3 Ala. 747, 749 (1842).

144. See generally Leonard W. Levy, The Law of the Commonwealth and Chief Justice Shaw 166-82 (1957). Cf. Williams v. Taylor, 4 Port. 234 (Ala. 1836) (employer not strictly liable for injuries to hired slave, but is liable for ordinary neglect; applies assumption of risk theories).

145. But cf. Walker v. Boiling, 22 Ala. 294 (1853) (avoids ruling on fellow-servant rule by finding direct negligence in employing grossly negligent engineer); Cook & Scott v. Parham, 24 Ala. 21 (1853) (evenly divided on fellow-servant rule, but agreed on direct negligence in failing to employ competent officers).

146. Forsyth v. Perry, 5 Fla. 337, 344-45 (1853).

147. Scudder v. Woodbridge, 1 Ga. 195, 200 (1846). The court also alluded to the fact that many of the fellow-employees of hired slaves were free persons of color, who might well be judgment proof. See also Howes v. Steamer Red Chief, 15 La. Ann. 321 (1860).

148. Ponton v. Wilmington & W.R.R., 51 N.C. 245 (1858). This was the first case in North Carolina applying the fellow-servant rule to any employees, slave or free.

149. The same principles were applied to wills allowing slaves to choose their new masters. See, e.g., Harrison v. Everett, 58 N.C. 163 (1859). One reason that some slaves might decide against foreign emancipation was that they would have to abandon their friends and neighbors. Indeed, Leary v. Nash, 56 N.C. 356 (1857), held that a female slave, given the election of freedom, would have to leave behind her children born between the making of the will and the testator's death, because, until he died, the will was revocable and had no effect. This, however, was quickly changed by statute. N.C. Rev. Code, ch. 119, § 27 (1858). Cf. Catin v. D'Orgenoy, 8 Mart. 218 (La. 1820).

150. See, e.g., Elder v. Elder, 31 Va. (4 Leigh) 252 (1833); Cox v. Williams, 39 N.C. 15 (1845) (since American Colonization Society's charter permits transportation only of slaves who consent to go on to Liberia, slaves given to Society must be asked if they desire to leave); Leech v. Cooley, 14 Miss. (6 Sm. & M.) 93 (1846) (refuses to distinguish “liberate and send elsewhere” from “send elsewhere and liberate”); Wade v. American Colonization Society, 15 Miss. (7 Sm. & M.) 663 (1846). Cf. Nicholas v. Burruss, 31 Va. (4 Leigh) 289 (1833) (Tucker, J., presents own view that slave must assent to emancipation).

151. The earliest case invalidating a will allowing slaves to choose between freedom and slavery appears to be Carroll v. Brumby, 13 Ala. 102 (1848), which decided the question without much discussion.

152. Bailey v. Poindexter, 55 Va. (14 Gratt.) 132, 197-98 (1858). See also Williamson v. Coalter, 55 Va. 14 Gratt.) 394 (1858) invalidating will freeing slaves unconditionally, because of provision in will saying that any slave who stays in Virginia may choose own master) ; Creswell v. Walker, 37 Ala. 229 (1861).

153. Bailey v. Poindexter, 55 Va. (14 Gratt), at 202. See also Girod v. Lewis, 6 Mart, O.S. 559 (La. 1819).

154. See, e.g., Cleland v. Waters, 19 Ga. 35, 41 (1855) (“True, slaves are property—chattels if you please; still they are rational and intelligent beings. … In the absence of all legal restraint, and upon a point affecting the owner and his slaves only, and where no considerations of public policy intervene, we do not see the paramount necessity of establishing a doctrine so stringent”); Harrison v. Everett, 58 N.C. 163 (1859) (“humane” to permit slaves to choose new masters); Reeves v. Long, 58 N.C. 355 (1860) (no qualified slavery in permitting slave to choose new master; to hold otherwise “would be to exclude from the system of slavery every indulgence in its management, or at least, so to hedge it about, in this respect, as to make it stiff and harsh, and thus impart to it an aspect it does not now possess”).

155. Redding v. Findley, 57 N.C. 216, 218-19 (1858). See also Alvany v. Powell, 54 N.C. 35 (1853) (slaves may take property in state prior to departure pursuant to a will emancipating them).

156. Cleland v. Waters, 19 G. 35 (1855).

157. Drane v. Beall, 21 Ga. 21 (1857).

158. Curry v. Curry, 30 Ga. 253, 260 (1860). The court also said, “Should such a bequest be sanctioned by this Court as a legal disposition of these slaves, there would be no end to which the system would be carried,” id., at 259, and cited cases invalidating wills authorizing the choice of foreign emancipation.

159. On a related issue, slaves' dying declarations were treated as being as solemn as any other such testimony. The Mississippi court said, “The simple, elementary truths of Christianity, the immortality of the soul, and a future accountability, are generally received and believed by this portion of our population. From the pulpit, many, perhaps all who attain maturity, hear these doctrines announced and enforced, and embrace them as articles of faith.” Lewis v. State, 17 Miss. (9 Sm. & M.) 115-120 (1847).

160. The court called it a “basic principle of criminal jurisprudence,” Jordan v. State, 32 Miss. 382 (1856). It was sensitive, too, to the pressures a white man could exert without using force on a slave. See, e.g., Dick v. State, 30 Miss. 593 (1856). Cf. Jordan v. State, 32 Miss. 382 (1856) (threats used); Simon v. State, 37 Miss. 288 (1858) (“you had better tell the whole truth” is threat); Brister v. State, 26 Ala. 107 (1855) (improper to admit confession given as answer to questions assuming guilt); Dinah v. State, 39 Ala. 359 (1864) (confession inadmissible when given as answer to questioner asking why she was in jail; acknowledges fear of punishment for changing story). At the same time, however, the courts required some particular inducement to confess, and would not infer such an inducement from a climate of fear. See Peter v. State, 4 Miss. (3 How.) 433 (1839) (lynch mob surrounding jail; conviction reversed on technical ground); Frank v. State, 39 Miss. 705 (1861) (slave heard another being whipped); Mose v. State, 36 Ala. 211 (1860) (confession admissible because taint dissipated). For another instance where a technical defect invalidated a conviction, see Laura v. State, 26 Miss. 174 (1853). See also Stephen v. State, 11 Ga. 225 (1852); State v. Gilbert, 2 La. Ann. 244 (1847); State v. Nelson, 3 La. Ann. 497 (1848).

161. See, e.g., Seaborn v. State, 20 Ala. 15, 17-18 (1852) (“The facts that they were slaves, and ignorant, and to some extent unacquainted with the consequences which may attend the making of such admissions, go not to the admissibility of the evidence, but should be weighed by the jury in connection with the admissions in ascertaining the weight to be given them”); Simon v. State, 5 Fla. 285, 298 (1853) (holds inadmissable confession given to mayor in office surrounded by large crowd, which mayor said was sure of defendant's guilt; “the fact that the accused is a slave, and the confession to, and at the instance of his master, are circumstances entitled to the most grave consideration; the ease with which this class of our population can be intimidated, and the almost absolute control which the owner does involuntary [sic] exercise over the will of the slave, would induce the Courts at all times to receive their confessions with the utmost caution and distrust”).

162. Peter v. State, 12 Miss. (4 Sm. & M.) 31, 38 (1844). See also State v. George, 50 N.C. 233 (1858); Bob v. State, 32 Ala. 560 (1858). Cf. State v. Clarissa, 11 Ala. 57, 61-62 (1847) (“[slaves'] condition in the scale of society, throws a certain degree of discredit over any confession of guilt they may make, and renders it unsafe if not improper, to act upon such evidence alone”).

163. Sam v. State, 33 Miss. 347, 351-52 (1857). The court acknowledged that the master-slave relation might impair the credibility of the confessions, but argued that slaves rarely confessed except to masters. If these confessions were inadmissible, slaves would be punished summarily and outside the legal system, “which should operate, both in its protection and in its punishment, upon them, as well as upon the white man.” Ibid. See also Smith v. Commonwealth, 51 Va. (10 Gratt.) 734 (1853). In Alabama, the rule was that confessions to masters were to be examined with caution, since the relation of “ownership and dominion on the part of the master, and subjection and dependence on the part of the slave … may be supposed to exert an influence over the mind of the slave, with respect to such admissions, when considered in connection with the declarations made by the master, which might not attach to declarations made by strangers or persons having no connection with the slave in any way. The slave naturally looks to his master for protection: he is accustomed to throw himself on his leniency and mercy, and, it may be, by honest confessions of his guilt, to mitigate the chastisement which may await him as the punishment for his misconduct.” Wyatt v. State, 25 Ala. 9, 12 (1854). One North Carolina judge would have excluded all confessions to masters because a slave, in confessing, spoke “with a view to propritiate his master. His confessions are made, not from a love of truth, not from a sense of duty, not to speak a falsehood, but to please his master.” State v. Charity, 13 N.C. 543, 548 (1830) (Henderson, J.).

164. State v. Hannah, 10 La. Ann. 131, 132 (1859).

165. Isham v. State, 7 Miss. (6 How.) 35, 41-32 (1841). See also Cobb, supra, note 45, at 271-72. The Louisiana court said, “Slaves are prosecuted as persons, and they ought not to be deprived of the testimony of their owners, because the verdict may injury them in a pecuniary way.” State v. Peter, 14 La. Ann. 521, 529 (1859). See also Spence v. State, 17 Ala. 192 (1850); Austin v. State, 14 Ark. 555 (1854).

166. State v. Charity, 13 N.C. 543 (1830).

167. State v. Jim, 48 N.C. 348, 351 (1856). The court emphasized the inconsistency between prosecuting a slave as a person and excluding testimony on the ground that the slave was property.

168. Jim v. State, 15 Ga. 535 (1854).

169. Bob v. State, 32 Ala. 560 (1858).

170. Cf. David Little, Religion, Order, and Law: A Study in Pre-Revolutionary England 21-22 (1969).

171. See Roscoe Pound, The Formative Era of American Law 4, 30n. 2 (1938) (Ruffin one “of the ten judges who must be ranked first in American judicial history”).

172. See Cobb, supra, note 45, at 254; Jackson v. Bob (1861); Gary v. Stevenson, 19 Ark. 580 (1858). But see State v. Alford, 22 Ark. 386 (1860) (presumption does not apply to criminal cases when race determines either the crime or the punishment). Cf. Thurman v. State, 18 Ala. 276 (1850) (child of white mother by mulatto father is not a mulatto and so cannot be convicted of crime of mulatto raping white woman).

173. Hunter v. Shaffer, Dudley 224 (Super. Ct. Ga. 1830).

174. Nichols v. Bell, 46 N.C. 32, 34-35 (1853).

175. Adelle v. Beauregard, 1 Mart. 183 (La. 1810); State v. Cecil, 2 Mart. 208 (La. 1812). After these cases, possession of freedom rather than color seemed to give rise to the presumption. Compare Pilie v. Lalande, 7 Mart., N.S. 648 (La. 1829) with Forsyth v. Nash, 4 Mart. 385 (La. 1816) and Hawkins v. Vanwickle, 6 Mart., N.S. 418 (La. 1828). But this was not the evolution of a rule independent of color. See Miller v. Belmonti, 11 Rob. 339 (La. 1845); State v. Powell, 6 La. Ann. 449 (1851). Rather, it seems to have been a change in emphasis on the various factors suggesting that a presumption should be invoked.

176. The following is a compilation of Louisiana statutes and cases dealing with free blacks. It gives an indication of the range of regulation, perhaps wider in Louisiana, with its large free colored population than elsewhere. Free persons of color had to carry a certificate of their status when they carried arms. La. Digest (1828), Black Code, § 21. They could not insult whites “nor presume to conceive themselves equal to the white.” Id. § 40. See State v. Fuentes, 5 La. Ann. 427 (1850). Their right to emigrate was closely regulated. La. Digest of Penal Law 115-16 (1841) (Act of 1830); La. Rev. Stat. 287-89 (1852) (Act of 1842); La. Acts 70 (1859). Neither slaves nor free persons of color could immigrate if they had committed a serious crime. La. Digest (1828), Slaves, Act of 1817. Free persons of color could, however, testify against whites. State v. Levy, 5 La. Ann. 64 (1850). Members of both groups could be executed for arson, poisoning, and rape. La. Rev. Stat. 50 (1856). Marriage across racial lines was prohibited. La. Civil Code, § 45. (This was a civil disability; no laws made intermarriage criminal. Cf. id. sec. 182. See also Dupre v. Boulard's Exec'r, 10 La. Ann. 411 (1855).) To enforce the ban on intermarriage, illegitimate mulatto children could prove their descent only from a Negro father. La. Civil Code, § 226 (1853). See also Robinett v. Verdun's Vendees, 14 La. 542 (1840) (fact of white father can be proved against colored children). (The Civil Code imposed special requirements on the acknowledgement of colored children. See Thomassin v. Raphael's Exec'r, 11 La. 128 (1837); Compton v. Prescott, 12 Rob. 56 (1845). Cf. Turner v. Smith, 12 La. Ann. 417 (1857) (acknowledgement by white man of his children by his slave is null).) Some corporations were open only to whites. See Boisdere v. Citizens' Bank, 9 La. 506 (1836) (such a limitation cannot destroy rights already vested in free persons of color); African Methodist Episcopal Church v. New Orleans, 15 La. Ann. 441 (1860) (free persons of color cannot form incorporated churches).

177. State v. Harrison, 11 La. Ann. 722 (1856). See also State v. King, 12 La. Ann. 593 (1857). Compare State v. Henry, 15 La. Ann. 297 (1860) (act “relative to crimes committed by slaves” is not unconstitutional). See also State v. Philpot, Dudley 46, 50-52 (Super. Ct. Ga. 1831) (it would be “absurd” to deny habeas corpus to free blacks “for then the benefit of this salutary writ would be made to depend upon the particular complexion of the individual, and not upon his political or social relations… . The law has never ceased to consider slaves, though thus subject to the government and service of a master, as human beings, subject to its protection, and bound to obey its requirements… . [T]hough slaves have no political rights, nor rights of property, they have many personal rights, and are very far from being considered mere things, brutes, and [sic] beasts of burden… . [F] ree persons of color, though they lack civil rights ”enjoy in the fullest extent personal liberty“). Contra, Field v. Walker, 17 Ala. 80 (1849). Cf. Union Bank v. Benham, 23 Ala. 143 (1853).

178. But see Daniel v. Guy, 19 Ark. 121, 23 Ark. 50 (1861), sub. nom. Daniel v. Roper, 24 Ark. 131 (1863). These cases illustrate the occasional factual problems in establishing a person's race.

179. Pendleton v. State, 6 Ark. 509, 512 (1846).

180. Henry v. Armstrong, 15 Ark. 162, 168-69 (1854).

181. Pleasant v. State, 15 Ark. 624 (1855).

182. Cf. Leiper v. Hoffman, 26 Miss. 615 (1853); Tannis v. Doe, 21 Ala. 449 (1852).

183.Ewell v. Tidwell, 20 Ark. 136, 143-44 (1859). See also Heirn v. Bridault, 37 Miss. 209 (1859). Cf. Hunter v. Shaffer, Dudley 224 (Super. Ct. Ga. 1830).

184. Bryan v. Walton, 14 Ga. 185, 198, 205-06 (1853).

185. Cooper v. Mayor of Savannah, 4 Ga. 68 (1848) (failure to pay tax on free blacks moving to city can be penalized only by fine, not by imprisonment); Scranton v. Demere, 6 Ga. 92 (1849).

186. See, e.g., State v. Lane, 30 N.C. 256 (1848) (“Degraded as are these individuals, as a class, by their social position, it is certain, that among them are many, worthy of all confidence”). Cf. State v. Boyce, 32 N.C. 536, 540-41 (1849) (permitting slaves to have holiday dance does not constitute keeping a disorderly house; “It would really be a source of regret, if, contrary to common custom, it were to be denied to slaves, in the intervals between their toils, to indulge in mirthful pasttimes… . One cannot well regard with severity the rude pranks of a laboring race, relaxing itself in frolic”).

187. See, e.g., State v. Jacobs, 47 N.C. 52, 55 (1854) (personal service of notice to free black to leave city is required; “the legislature never intended to act so oppressively towards a race to whom stern necessity has compelled it, in other respects, to deny so many of the privileges of freemen”). Cf. Davenport v. Commonwealth, 28 Va. (1 Leigh) 588 (1829) (knowledge that victim is free is unnecessary to establish offense of “stealing” a free person of color).

188. Luke v. Florida, 5 Fla. 185, 195 (1853).

189. See, e.g.,Adams v. Bass, 18 Ga. 130 (1855); Sanders v. Ward, 25 Ga. 109 (1858); Walker v. Walker, 25 Ga. 420 (1858). Courts did seize on alternative grounds to invalidate wills of this sort. See, e.g., Adams v. Bass, supra (refusing to apply cy pres to will directing emancipation in Northern states where free blacks could not live); American Colonization Society v. Gartrell, 23 Ga. 448 (1857) (Society's charter, limiting it to transportation of free blacks, bars it from taking bequest of slaves); Lusk v. Lewis, 32 Miss. 297 (1856) (same); Myers v. Williams, 58 N.C. 362 (1860) (will for future emancipation void because particular terms of will create perpetuity). But cf. Walker v. Walker, supra (although American Colonization Society cannot act as trustee for slaves transported to Liberia, Chancellor should appoint trustee who will carry out testator's wishes).

190. See, e.g., Charles v. Hunnicutt, 9 Va. (5 Call) 311 (1804); Myrick v. Vineburgh, 30 Ga. 161 (1860); Vance v. Crawford, 4 Ga. 445 (1848); Jordan v. Bradley, Dudley 170 (Super. Ct. Ga. 1830); Cameron v. Commissioners of Raleigh, 36 N.C. 436 (1841); Ross v. Vertner, 6 Miss. (5 How.) 305 (1840); Atwood v. Beck, 21 Ala. 590 (1852); Pool v. Pool, 35 Ala. 12 (1859). Cf. Prater v. Darby, 24 Ala. 496 (1854), overruling Trotter v. Blocker, 6 Port. 269 (Ala. 1838); Thompson v. Newlin, 41 N.C. 380 (1849). Contra, Miss. Code, ch. 37, art. 17, Sec. 11 (enacted Feb. 26, 1842) (1848), applied, Mahorner v. Hooe, 17 Miss. (9 Sm. & M.) 247 (1848) (will made in Virginia, where foreign emancipation legal, ineffective as to slaves in Mississippi). See also N.C. Acts, ch. 37 (1860) (emancipation by will prohibited).

191. Bryan v. Dennis, 4 Fla. 445 (1852).

192. See, e.g., Thornton v. Chisolm, 20 Ga. 338 (1856); Bivins v. Crawford, 26 Ga. 225 (1858); Francois v. Lobrano, 10 Rob. 450 (La. 1845). But see Anderson v. Anderson, 38 Va. (11 Leigh) 616 (1841); Abercrombie v. Abercrombie, 27 Ala. 489 (1855). Acts more limited than promises of freedom did not, it was thought, establish a qualified state of slavery. See, e.g., Washington v. Emery, 37 N.C. 32 (1858); Harden v. Mangham, 18 Ga. 563 (1855).

193. See, e.g., Myers v. Williams, 58 N.C. 362 (1860); Vance v. Crawford, 4 Ga. 445, 459 (1848) (“the impropriety of tolerating domestic manumission, which cannot fail greatly to corrupt the other slaves of the country, and to render them dissatisfied with their condition of servitude—leading in the end to insubordination and insurrection”); Stanley v. Nelson, 28 Ala. 514, 518 (1856) (statutes barring slaves from going at large were “to prevent the demoralization and corruption of slaves, resulting from a withdrawal of discipline and restraint from them, and to prevent the pernicious effect upon the slave community of the anomalous condition of servitude without a master's control”); Anderson v. Anderson, 38 Va. (11 Leigh) 616, 624 (1841) (Brooke, J., dissenting: “The rights of the master must be controlled, the moral influence that subjects the slave to the master disregarded, and a spirit of hostility engendered while they continue to be slaves, calculated to diminish their value as slaves: the property of the master is to be invaded in a manner subversive of the institution of slavery, and likely to have an influence on those who are slaves for life; and the next step may be to interfere with the master in their cases also, if the humanity of the court is appealed to”). Cf. Roger v. Marlow, R. Charlton 542, 548 (Super. Ct. Ga. 1837) (increase in number of free bleaks prohibited because they “ravag[e] the morals, and corrupt … the feelings of our slaves. Experience had taught our legislators, that such a class, lazy, mischievous and corrupt, without any master to urge them to exertion, and scarcely any motive to make it, was extremely dangerous to our naturally indolent slaves”); Thomas v. Palmer, 54 N.C. 249 (1854) (while free blacks “seldom prosper so well as to become objects of envy,” slaves protected by masters but given control over own time do cause envy). See also Genovese, Roll, Jordan, Roll, at 51, 412 (1974).

194. See, e.g., Vance v. Crawford, 4 Ga. 445, 459 (1848) (“To set up a model empire for the world, God in His wisdom planted on this virgin soil, the best blood of the human family. To allow it to be contaminated, is to be recreant to the weighty and solemn trust committed to our hands. Republican institutions cannot exist in Mexico, or the commingled races of South America”); American Colonization Society v. Gartrell, 23 Ga. 448, 464 (1857) (Liberia is filled with “a few thousand thriftless, lazy semi-savages, dying of famine, because they will not work! To inculcate care and industry upon the descendants of Ham, is to preach to the idle winds”).

195. See generally Genovese, supra note 7.

196. See, e.g., Stroud at v, 12-13; Goodell, Slave Code, at xi-xii (letter from William Jay to Goodell), 394-96, 403.

197. Nash, “The Texas Supreme Court and Trial Rights of Blacks, 1845-1860,” 58 J. Am. Hist. 622, 624 (1971); Nash, “Negro Rights, Unionism, and Greatness on the South Carolina Court of Appeals: The Extraordinary Chief Justice John Belton O'Neall,” 21 S. Car. L. Rev. 141, 143 (1969). See also Nash, “Fairness and Formalism in the Trials of Blacks in the State Supreme Courts of the Old South,” 56 Va. L. Rev. 64 (1970); Nash, “A More Equitable Past? Southern Supreme Courts and the Protection of the Antebellum Negro,” 48 N. Car. L. Rev. 197 (1969); Senese, “The Free Negro and the South Carolina Courts,” 68 S. Car. Hist. Mag. 140 (1967); Clavice, “Aspects of the North Carolina Slave Code,” 39 N. Car. Hist. Rev. 148 (1962). See also Flanigan, “Criminal Procedure in Slave Trials in the Antebellum South,” 40 J. South. Hist. 537 (1974). Flanigan too uses the liberal-conservative dimension, simply relocating Southern law from the liberal end, as Nash suggested, to a point much closer to the conservative end. For what it is worth, were I required to use those categories, I would agree with Flanigan.

198. See also Genovese, Roll, Jordan, Roll, at 49-70 (1974).

199. Recently, Professor William Nelson has tried to provide new analytic categories from the perspective of legal history: Nelson, “The Impact of the Antislavery Movement Upon Styles of Judicial Reasoning in Nineteenth Century America,” 87 Haw. L. Rev. 513 (1974). His categories are instrumentalism and formalism. The primary difficulty with using those categories in the area discussed in this article are two. First, a fair number of cases cannot easily be identified as using one or the other style. Cf. State v. Philpot, Dudley 46, 53 (Ga. 1831) (“Here [questions of expedience] can have no place; the only question being whether such is the law, not whether it is expedient or politic that it should be so. It should never be forgotten, however, by any, that there can be no true and sound policy which is opposed to strict and impartial justice; and that both individual and general happiness and security are best attained by a prompt and cheerful obedience to just and humane laws”); Peter v. Hargrave, 46 Va. (5 Gratt.) 12 (1848) (the best extended illustration of the difficulties); Maranthe v. Hunter, 11 La. Ann. 734 (1856). Second, though Professor Nelson noted a change in style from the antebellum period, in which instrumentalism prevailed, to the post-war period, in which formalism prevailed, something that looks very much like formalism can be seen in antebellum Southern opinions. See, e.g., Harris v. Maury, 30 Ala. 679 (1857); Dargan v. Mayor of Mobile, 31 Ala. 469 (1858); Commonwealth v. Turner, 26 Va. (5 Rand.) 678 (1827) (quoted supra TAN 28); Anderson v. Anderson, 38 Va. (11 Leigh) 161 (1841) (majority completely ignored dissenter's instrumental argument). See also Scheiber, “Instrumentalism and Property Rights: A Reconsideration of American ‘Styles of Judicial Reasoning’ in the 19th Century,” 1975 Wisc. L. Rev. 1 (arguing that instrumentalism persisted after Civil War).

Finally, in light of Professor Nelson's argument that the change he discerned was rooted in the marriage of antislavery jurisprudence to a preoccupation with legal science, op. cit., at 519, 560, his use of evidence from the South approaches the bizarre. He quoted Southern courts twice, id., at 544, apparently unaware of the anomaly of attributing ideas “associated with the antislavery movement,” id., at 553, to a Louisiana court in 1882 and a Mississippi court in 1898. I can conceive of an argument from the era's Weltanschauung that would explain the anomaly, but Professor Nelson did not give it. Instead, he relied essentially on simple biographical data: postwar formalism is explained by the antislavery jurisprudence of judges who had been advocates of antislavery policies before the war. Id., at 551-53. This really will not do to explain the behavior of Mississippi judges.

200. Cf. William E. Nelson, Americanization of the Common Law 28-29 (1975); Commonwealth v. Sullivan, 146 Mass. 142 (1888).

201. Cf. Samuel D. Warren & Louis D. Brandeis, “The Right to Privacy,” 4 Harv. L. Rev. 193 (1890).

202. Max Weber on Law in Economy and Society 63 (Rheinstein ed. 1954). See also id., at 349-56.

203. Frederick Pollock & F.W. Maitland, The History of English Law, II, 630 (2d ed. 1898).

204. Id., at 582

205. See, e.g., Kiper v. Nuttall, 1 Rob. 46, 47 (La. 1841).

206. Thus, the mere existence of widely-available law reports enhances the tendency toward formal rationality. But cf. Nelson, supra, note 199, at 516-18.

207. See, e.g., Weber, supra, note 202, at 198-223, 275-78.

208. On the replacement of a legal aristocracy of merit by an elected judiciary, see Perry Miller, The Life of the Mind in America, Book II (1965). On unregulated entry to the practice of law, and the consequent fragmentation of the bar, see Willard Hurst, The Growth of American Law: The Law-Makers 250-52, 277 (1950); Daniel H. Calhoun, Professional Lives in America (1965). On the development of academic law, see Hurst, supra, at 259; Gerald Dunne, Justice Joseph Story and The Rise of the Supreme Court 310-15 (1970).

A-1. First, statutes are less focused on conflicting values than are cases, thus complicating the task of inferring the choices among values which law-men made. Second, the Partidas are an expression of the values of a society which had little experience with a slave system as a central aspect of the society. These difficulties can be discounted to some degree. The Partidas show that the learned men and priests who drafted them did have some particular focused problems in mind. How else can one explain Las Siete Partidas, Partida 7, title 15, law 29 (Scott trans. 1930) [hereafter cited as Partidas, partida number/title number/law number; e.g., Partidas, 7/15/29]:

Where a slave who is a painter is killed, although during the same year in which he lost his life he may have lost a thumb of his right hand through disease or accident, the party compelled to make reparation must, nevertheless, pay for him just as if his thumb had been sound at the time he was killed.

We also decree that where a person has two slaves who sing well together and some person kills one of them; he shall not only be bound to make reparation for the dead slave, but he shall also pay as much as it shall be decided that the other has depreciated in value on account of the one who was killed.

What we have mentioned above in the cases aforesaid applies to all others similar to them; so that the party who causes an injury to any other property of this kind, is not only bound to make reparation for that which was depreciated in value or killed, but also for the loss sustained by the master resulting from the property being killed.

See also Partidas 5/14/45, 7/15/30. Some provisions included statements of justification. See, e.g., Partidas 3/5/4, 3/29/3 3/30/16, 3/31/22, 5/5/46. While the Partidas may show the undeveloped law of an immature slave system, they hint at the general mode of reasoning which that system used. It cannot be certain whether contrasts with Southern law should be attributed to the immaturity of Spanish law or of Spanish slavery. But the American cases seem to show the law of a developed slave society in two forms, rudimentary, for example in Mississippi, and mature, in Louisiana. This should make the contrasts suggestive of what can fairly be attributed to factors internal to the law. Finally, emphasis on differing styles of reasoning should indicate that the key differences among systems of slave law lie in those styles and not in the specific rules of law.

A-2. Some commercial provisions deal with slaves as agents of their master. See, e.g., Partidas, 3/2/9, 5/5/60.

A-3. See, e.g., Partidas, 5/13/37, 5/14/38, 5/14/45, 6/3/24, 6/3/25, 6/9/6, 5/5/45, 1/11/1, 1/14/7.

A-4. Partidas, 7/1/3. Slaves could not accuse anyone of crime. Partidas, 7/1/10. A master should not prosecute his slave but should punish the slave himself. Partidas, 3/2/8. See also Partidas, 4/21/6 (master “should not” kill slave, except for intercourse with master's wife or daughter). Slaves were incompetent in criminal cases, Partidas, 3/16/12, and were subject to special rules about torture, Partidas, 7/30/6.

A-5. Partidas, 4/4/preface.

A-6. Partidas, 4/22/preface.

A-7. See Partidas, 4/22/1-4/22/6, 5/13/37, 5/14/38-5/14/45.

A-8. Partidas, 4/16/5. See also Partidas, 4/22/9 (emancipated slave who shows ingratitude toward former master may be re-enslaved).

A-9. Partidas, 3/16/13. See also Partidas, 7/30/6 (limitations on use of torture to elicit evidence against master).

A-10. Partidas, 5/5/46.

A-11. Partidas, 3/29/3. See also Partidas, 3/30/16. This hierarchy did distinguish sharply between men, even slaves, and animals. The children of a female slave belonged to the owner, not to the usufructuary.

There is the following reason for this, namely: though all the increase of flocks and herds ought to belong to the parties to whom the usufruct of the same is granted, nevertheless, with regard to the child of a slave this is not true, because, according to nature, the fruits of all property were given and granted for the service of man, and therefore it would be neither proper nor right, that he, for whose service the increase of all other property was established, should be included in the usufruct of another party.

A-12. See Partidas, 4/22/8. See also Partidas, 4/21/4 (wicked Christians who aid Moors can be enslaved), 4/21/3 (children of priests are slaves of Church).

A-13. Some provisions regulated other aspects of the coordination of the slave's status with other statutes. See, e.g., Partidas, 1/6/18 ordination of slaves), 4/22/4 (slave freed when put in brothel).

A-14. Partidas, 4/21/1-4/21/6. See also Partidas 5/11/6 (contracts cannot be made between father and son or master and slave).

A-15. Partidas, 3/11/7.

A-16. Partidas, 6/1/16.

A-17. Partidas, 7/14/22.