The Business Law of Slavery, Slaveholders, and Nonslaveholders

The law of slavery had implications for matters other than race relations. Slavery also figured significantly in the development of the common law and in the conduct of business relations in the South. Slaves were in many ways the South's most important commodity and antebellum southern business law took account of that reality. Tens of thousands of cases crowded the dockets of southern trial and appellate courts involving slaves as subjects in some business arrangement. They were the center of disputes over the warranty of fitness given by sellers to buyers, and as property they were regularly mortgaged, hired, stolen, bartered, wagered, seized for debt, and fought over in succession and divorce contests. Matters of tort, contract, and consumer protection involving slaves were everyday facts of legal life in the region.

The law of slavery also had implications for nonslaveholding whites. Slave patrols, for example, were typically composed of nonslaveholders whose duty it was to guard the slave system against runaways and arrest slaves suspected of violating the law. The patrols exercised extraordinary authority in the rural and lightly populated southern states that had no official police forces. The patrol's power often caused consternation among masters. The patrol offered the nonwealthy whites the opportunity to destroy and abuse the property of their social superiors. Slaveholders repeatedly went to the courts with charges that patrollers had invaded their plantations and whipped their slaves excessively. But masters "looked upon the patrol as an essential police system, and none ever seriously suggested abolishing it." ²⁰

But it was in business dealings that the interests of slaveholders and nonslaveholders were most fully joined. In tort law, for example, the English common law held masters absolutely liable for the negligence of their servants. Slaves were not servants; they were chattels under the absolute legal dominion of the master. The social and the legal position of the slave "simply was not the social and legal position of the English servant." ²¹ The tension created by the slave's personality in the criminal law matched

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the anomaly of a slave being held liable for accidents by any provision in the law of torts. The question arose: who would pay for slave accidents? Obviously, slaves could not.

Emerging concepts of nineteenth-century tort law freed employers of responsibility for accidents involving their employees through the fellow-servant rule, contributory negligence, and assumption of risk. Southern courts, like their northern counterparts, applied these doctrines to white workers, and the South Carolina Supreme Court was the first to invoke the fellow-servant rule. The extension of these principles to slaves would have posed questions about the scope of the master's control, a matter on which the slave system was not interested in compromising.

Yet compromise it did. The way in which southern courts treated the matter of masters' liability for slave wrongs depended on whether jurists worked within a system defined by statutes, the civil law, or the common law. In Louisiana, for example, appellate judges applied the civil law standard of absolute liability. The Louisiana Supreme Court held that ownership of slaves carried as one of its "burthens" responsibility for the actions of slaves owned by the master, although the law also provided the means by which masters could limit their damages. ²²

In the common law jurisdictions, the problem was more acute and the solutions to it depended on the extent of nonslaveholder power. As with procedural fairness in slave criminal proceedings, the scope of masters' liability was greatest where nonslaveholders were politically strongest. While southern appellate judges paid close attention to developments in tort law in the North, they were nearly unanimous in declaring that slaves could never be elevated to the status of "fellow servants." Courts generally allocated the costs of industrialization in the South by siding with the masters and placing the burden of accidents on the industries that hired the slaves.

White nonslaveholders had a direct interest in receiving compensation for slave wrongs. The legislatures of Arkansas and Missouri, for example, made masters civilly liable for a specified series of trespasses. The Tennessee legislature provided that masters would be liable for injuries that resulted from certain stipulated offenses, but that the damages could not exceed the value of the slave. The notion that masters could and should control their slaves was particularly strong. Judge Nathan Green, for example, urged the Tennessee legislature to impose by statute a broad rule of liability on masters for the actions of their slaves, observing that such a law "would be fair and equal among the slaveholders themselves; and, in relation to a large majority of the people of the state, who do not own slaves, it is imperiously required." ²³

The law ironically accommodated the South's system of social deference to the "indwelling" character of slavery by legally imposing extralegal solutions. For example, an Arkansas statute provided that "in all [torts], and offences less than felony" committed by a slave, the master could "compound with the injured person and punish his own slave, without the intervention of any legal trial or proceeding; but if he refuse to compound, the slave may be tried and punished, and the damage recovered by suit against the master." ²⁴

Southern judges also protected the slave-buying public from attempts by slave dealers, auctioneers, and individuals who were seeking to unload a diseased, disabled, or refractory slave. In Louisiana the Civil Code regulated the sale of slaves in much the same way as the sale of any other commodity. During the antebellum period, the state's supreme court heard more than twelve hundred appeals involving slavery and

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the most numerous of these concerned provisions of the state's code regulating the sale of slaves defective in mind or body. The Louisiana Supreme Court strictly followed the letter of the code, which favored slave buyers over sellers. In common law jurisdictions protection for slave buyers was equally strong. The best example was South Carolina, the state with the highest percentage of slave population and a history of intensive slave buying from the colonial days to the Civil War. While the doctrine of caveat emptor had strong support in the North, it was explicitly rejected in matters involving slaves by the South Carolina courts. In effect, judges in South Carolina held, beginning with Timrod v. Schoolbred ( 1793), that sellers gave all buyers who paid a sound price an implied warranty as to the fitness of the slave. Once again, where slavery was strongest was where the protection for slave buyers was greatest. In the upper South, the South Carolina approach was not adopted, although judges and legislators were still solicitous of slave buyers and far more skeptical of the doctrine of caveat emptor than were northern judges and legislators. More generally, the favorable stance to the buyer of most southern lawmakers shows that they had little trouble treating slaves like ordinary articles in commerce.

Date: 2015-01-29; view: 893