The Bondsman's Burden: An Economic Analysis of the Common Law of Southern Slavery

by Jenny Bourne Wahl

• ISBN13: 9780521521383
• ISBN10: 0521521386
• Format: Paperback
• Copyright: 2002-08-22
• Publisher: Cambridge University Press

Summary

Were slaves property or human beings under the law? In crafting answers to this question, Southern judges designed efficient laws that protected property rights and helped slavery remain economically viable. But, by preserving property rights, they sheltered the persons embodied by that property - the slaves themselves. Slave law therefore had unintended consequences: it generated rules that judges could apply to free persons, precedents that became the foundation for laws designed to protect ordinary Americans. The Bondsman's Burden provides a rigorous and compelling economic analysis of the common law of Southern slavery, inspecting thousands of legal disputes heard in Southern antebellum courts, disputes involving servants, employees, accident victims, animals, and other chattel property, as well as slaves. The common law, although it supported the institution of slavery, did not favor every individual slave owner who brought a grievance to court.

Table of Contents

Acknowledgments	xi
American Slavery and the Path of the Law	1	(26)
The Economic Analysis of Slave Law	2	(7)
Enforcing Contracts: One's Word Is One's Bond	4	(1)
Assigning Liability in Contract and Tort Cases: Courts Take a More Active Role	5	(3)
Slave-Master Relations: Legal Rules Tended to Reduce Social Costs	8	(1)
Slave Law: How and Why It Differed	9	(10)
A Comparison of Contemporaneous Slave and Nonslave Law	9	(3)
The Nineteenth Century: Changes in Society Called Forth Changes in Law	12	(3)
Using Economics to Help Explain the Divergence Between Slave Law and Nonslave Law	15	(2)
Slave Law as an Important Influence upon Other Areas of Law	17	(2)
A Note on Methodology	19	(5)
Conclusion	24	(3)
The Law of Sales: Slaves, Animals, and Commodities	27	(22)
Historical Context and the Law of Slave Sales	27	(2)
Cases in which People Made Express Agreements	29	(5)
Warranties	29	(4)
Price Discounts and Locality Restrictions	33	(1)
Cases in which People Lacked Express Agreements	34	(10)
Buyers and Sellers Unaware of Defects in Sold Slaves	34	(2)
Sellers' Representations	36	(4)
Sellers' Disclosure of Flaws and Buyers' Knowledge of Defects	40	(2)
Special Hazards: Suicide, Insanity, and Emancipation	42	(2)
Sales of Slaves by Those Other Than Owners: The Importance of Being Human	44	(3)
Ties Between Slave Mothers and Their Children: Should Economics or Humanity Prevail?	44	(1)
Ties Between Slaves and Masters: The Use of Equitable Remedies	45	(2)
Conclusion	47	(2)
The Law of Hiring and Employment: Slaves, Animals, and Free Persons	49	(29)
The Uniqueness of Slave-Hiring Law: An Overview	50	(2)
Court Enforcement of Employment Contracts	52	(6)
Special Covenants Between Employers and Slaveowners	53	(1)
Duties and Job Location	53	(4)
Postbellum Livestock Cases: Mirrors of Slave Cases	57	(1)
Court-Assigned Liability in Employment Cases	58	(18)
Standards of Care for Employers	59	(8)
The Fellow-Servant Defense	67	(2)
Assumption-of-Risk and Contributory-Negligence Defenses	69	(7)
Conclusion	76	(2)
The Law Regarding Common Carriers: Slaves, Animals, Commodities, and Free Persons	78	(23)
A Brief Comparison of Laws Governing Common Carriers	79	(1)
The Law Governing Damages to Goods and Persons Traveling Aboard Common Carriers	80	(5)
Responsibilities of Common Carriers for Transported Slaves	80	(2)
Responsibilities of Common Carriers to Shippers of Commodities and to Free Passengers	82	(3)
The Law of Train Accidents	85	(8)
Slave and Livestock Cases: Duties of Plaintiff and Defendant	85	(5)
Free Accident Victims: Little Recourse Against Common-Carrier Defendants	90	(3)
The Law Governing Slave Escapes from Common Carriers	93	(6)
Courts Respected Contractual Arrangements in Slave-Transport Cases	94	(1)
A Negligence Standard Before Midcentury	94	(3)
Toward a Strict Liability Standard in Later Years	97	(2)
Conclusion	99	(2)
The Law Regarding Governments, Government Officials, Slave Patrollers, and Overseers: Protecting Private Property versus Keeping Public Peace	101	(19)
Cases Involving Governmental Defendants	102	(9)
Sovereign Immunity versus Personal Liability of Public Officials	102	(1)
Cases Against Government Itself	103	(4)
Cases Against Government Officials	107	(4)
Establishment and Duties of Slave Patrols	111	(3)
The Responsibilities of Overseers	114	(4)
Conclusion	118	(2)
The Legal Rights and Responsibilities of Strangers Toward Slaves, Animals, and Free Persons	120	(22)
General Legal Rules Governing Strangers	121	(11)
General Standards of Care	121	(1)
Protection of Property Other Than Slaves	122	(4)
Assaults by Strangers	126	(6)
Kidnapping of Slaves, Servants, and Free Blacks and Recovery of Fugitive Slaves: Legal Rules	132	(4)
Kidnapping Cases	132	(3)
Fugitive Slave Cases	135	(1)
Undermining the Slaveowner's Authority and Endangering the Community: Legal Penalties	136	(3)
Law Concerning the Treatment of Slaves that Benefited Their Owners	139	(2)
Conclusion	141	(1)
Treatment of One's Slaves, Servants, Animals, and Relatives: Legal Boundaries and the Problem of Social Cost	142	(32)
Explaining the Differences in Laws	143	(4)
Anticruelty Laws	147	(10)
Law Surrounding the Treatment of One's Servants, Apprentices, and Employees	147	(1)
Abuse of One's Slaves and Animals: Legal Limits	148	(3)
Protection Laws for Family Members: Lagging Behind Other Protection Laws	151	(6)
Kindness Toward One's Slaves: What Was Legally Acceptable?	157	(8)
Lawful Benevolence: Rules to Reinforce the Bonds of Slavery	157	(3)
Restrictions on Manumission: Considering External Costs	160	(3)
Other Restrictions	163	(2)
Respondeat Superior: When Did the Master Answer for His Subordinates?	165	(7)
Conclusion	172	(2)
The South's Law of Slavery: Reflecting the Felt Necessities of the Time	174	(5)
Notes	179	(84)
Index	263