Thomas D. Morris.
Southern Slavery and the Law, 1619-1860.
Chapel Hill: University of North Carolina Press, 1996. x + 561 pp. Notes,
bibliography, and index. $49.95 (cloth), ISBN 0-8078-2238-8 .
Lewie Reece , Bowling Green State University.
Scholars of Southern slavery have long debated the degree
to which slavery was a legal institution. Yet over the years the
historiography on the subject has undergone a subtle shift. In Charles
Sydnor's groundbreaking article, "The Southerner and the Laws," Journal
of Southern History 4 (1938), the focus was on the degree to which law
controlled Southern society and life. In the 1950s and 1960s, the issue
underlying historical works on the law of slavery changed from whether or
not law was important to slavery to the way in which law served as a
mechanism of racial control. Few could deny that racial control was at the
heart of the "peculiar institution," and much that we now know about
slavery comes from our investigation of the way in which law subordinated
African American slaves. Yet by the late 1970s the emphasis changed once
more, from noting the obvious degree of control to detailed studies that
examined the operation of the criminal justice system in the South. The
two best studies, those of Michael Hindus in Prison and Plantation
(1980)and Edward Ayers in Vengeance and Justice (1984), each told
us a bit more about the way the system worked. Yet only in the past ten
years or so have legal historians taken the next step forward to examine
not only racial control, but also the way in which the law of slavery
worked. Thomas Morris's Southern Slavery and the Law represents the
most recent, and perhaps the most definitive, effort to recapture the way
in which law and slavery co-existed.
Morris tells the story of Southern slavery in four distinct
parts. The first section of approximately sixty pages discusses the nature
of racial slavery in the South and the philosophical problem this posed
for the legal system. The second section of a hundred pages is an animated
dialogue on the connection between slavery and property rights, property
law, and contract law. The third section comprises two hundred pages in
which Morris strives to describe how slaves were treated by the legal
system in the matter of rules of evidence, jurisdiction, and due process.
The third part of Morris's tome abounds with lengthy discussions of
criminal trials of slaves, the question of rape as it worked out in racial
and sexual relations, municipal codes, and how owners could be held
civilly liable for the wrongs of slavery. The final section examines
emancipation, and makes clear that owners' ability to divest themselves of
slaves was not a property right that Southern courts sought to protect.
What then does Morris say about the nature of the Southern
legal system? Morris suggests that, on the one hand, the legal system was
clearly working for the benefit of slaveholders, and often twisting legal
principles to do so. Yet the sort of control that Southern courts offered
was filled with ambiguity, a cross-tug between the interest of
slaveholders, public policy of Southern legislatures, and the problem of
law itself. For example, just what did "moderate correction" of slaves
mean in a literal sense? Here, deprived of clear guidance from Southern
legislators, courts tended to give a broad interpretation of the power to
correct to Southern slaveholders. Conversely, for all of the absolute
power and control of slaveholders, they could not divest or "manumit"
their property without approval of the court. And Southern courts, as
Morris makes clear, were signally unwilling to manumit, regardless of what
owners wanted to do with their property.
The ambiguity operating among various cross-pressures
becomes even more clear when one is searching for a Southern "doctrine" as
it was applied to slaves. Every Southern state had a different legal
system, a different sort of judge sitting, and the rules that they were
willing to apply differed greatly. While one can see broad trends cast
across jurisdictions, one cannot help but be impressed with the degree of
Perhaps most interesting is Morris's lengthy discussion of
the tension that existed between the market and the plantation. Clearly, a
plantation was a financial business, dedicated to the pursuit of profit.
But the difficulty that some courts had in including slaves as an item to
be sold for creditors suggests that the pursuit of profit was not
absolute. Yet what truly stands out is the way in which the whole subject
of slaves' volition, their very humanity, could be played with from issue
to issue. Southern courts manifestly refused over and over again to apply
the fellow servant rule in slave hiring, and imposed liability on those
hiring them out. Slaves were held to have enough sense of right and wrong,
however, to be accused and found guilty in cases of theft, murder, and
An interesting question remains about what happened to
slaves when they made their way into court. Certainly a legal system that
would not hear their testimony when it accused a white person could hardly
be considered race-neutral. Slaves, Morris makes clear, came into courts
as the ultimate outsiders, as people who were pawns in a system controlled
by others. Nevertheless, he also seems to suggest that when slaves
presented themselves, the legal system made efforts to provide a certain
procedural fairness. Yet this fairness was limited by the nature of the
legal system itself.
One cannot fail to be impressed by the amount of research
that Morris contributes to the present scholarly debate. His endnotes
comprise a full seventy-five pages, and he has made a vigorous effort to
include as much local court material as was available. Nevertheless, his
frequent use of appellate decisions makes one wary about whether he is
giving a true sense of the way in which the system worked on a local
level. Morris also fails to give a strong sense of the way in which
slavery and law may have been different throughout the South. One wishes
that he had explained how decisions in Piedmont areas were different from
those in the Black Belt. Moreover, greater effort should have been made to
describe how law was created in the South, and the ways in which Southern
people molded the law of slavery in Southern legislatures.
Yet, though one wishes that Morris had given consideration
to those questions, what he has done is quite remarkable. For those
interested in the connections among law, race, and slavery this book will
be required reading.
Library of Congress
Call Number: KF482 .M67 1996
* Slavery--Law and legislation--Southern
* Slavery--Southern States--History
Citation: Lewie Reece . "Review of Thomas D. Morris,
Southern Slavery and the Law, 1619-1860," H-Law, H-Net Reviews, October,
“Despite its minor
shortcomings, this encyclopedic work belongs in the library of any scholar
of southern slavery or American legal history. Not only does it provide
abundant information about American slave law; it also provokes thought
about the function of social change in forming the law and, conversely,
the role of law in shaping society.”
Jenny B. Wahl, review of
Southern Slavery and the Law, 1619-1860, by Thomas D. Morris,
The Journal of American History 83 (December 1996): 1001.