Homicide Justified: The Legality of Killing Slaves in the United States and the Atlantic World by Andrew T. Fede (review)

In Federalist PapersNumber 54 (1788), Publius adopts the voice of "one of our Southern brethren" to explain the logic of article 1, section 2, of the U.S. Constitution—the notorious three-fifths clause. As a result of forced labor, commodification, physical restraint, and coercion, Publius acknowledges, "the slave may appear to be degraded from the human rank, and classed with those irrational animals which fall under the legal denomination of property." "In being protected," Publius continues, "in his life and in his limbs, against the violence of all others, even the master of his labor and his liberty," as in his or her own criminal culpability, "the slave is no less evidently regarded by the law as a member of the society."

Slavery studies, for the most part, has been preoccupied with the first component of the slave's "mixed character" ( Federalist54). After all, it is the property status of the enslaved that arguably distinguishes this form of servitude from other sorts of unfreedom. Recently, heightened awareness of racial profiling, mass incarceration, and police brutality has directed attention to the criminalization of race and the racialization of crime as the enduring legacy of U.S. slavery. Outside of scattered accounts in local, state, and regional histories of slavery, however, little has been said of the status of enslaved people as officially recognized victims of violent crime. As Joan (now Colin) Dayan has trenchantly observed of the slave's "retractable personhood," "the dead slave gets the protection of positive law, but at great cost" (Dayan, "Legal Slaves and Civil Bodies," in Russ Castronovo and Dan D. Elson, eds., Materializing Democracy: Toward a Revitalized Cultural Politics[Durham, N.C., 2002], 80, 66).

Dayan, of course, alludes to the prohibitive cost of such retroactive, formal redress to the enslaved victim. But as Andrew T. Fede demonstrates, meaningful legal protection of enslaved lives would have extracted too great a cost from the slave system to be feasible. His comprehensive survey of "the comparative law of slave killing" briefly considers ancient Rome, medieval Europe, and the British Caribbean before settling into a comparative analysis of slave homicide in colonial and then state jurisdictions throughout what would become the United States (p. 1). Here, as in other aspects of American slave law, variation across time and place was the norm. Still, from colonial Pennsylvania to Civil War–era Texas, one fact remained constant: slave owners were hardly ever legally punished for their role in the violent deaths of their slaves. Some were prosecuted, fewer were convicted, and fewer still expiated their crimes by capital punishment or even lengthy prison sentences. Fines, short-term incarceration, pardons, and community-assisted escapes were far more frequent. Significantly, the story changes considerably when the white killer was not of the slave-owning class. Although still rare, these prosecutions revealed the class divisions among white people in slaveholding communities. More to the point, the differential liability of owners and other white slave-killers gives the lie to Federalist54's tidy division of slaves' mixed character into property under civil law and persons under criminal law, for it was to protect the value of slave property as much as to preserve social order that nonslaveholding white people were held responsible for the deaths of enslaved people. In this way, Homicide Justified: The Legality of Killing Slaves in the United States and the Atlantic World,Fede's third book, confirms the arguments of his first book, People Without Rights: An Interpretation of the Fundamentals of the Law of Slavery in the U.S. South(New York, 1992). Drawing on original research as well as an impressive array of secondary sources, Fede here offers a granular view of the legislation and litigation pertaining to slave homicide but little synthetic analysis. Nevertheless, Fede's comprehensive overview...