- The Bondsman’s Burden: An Economic Analysis of the Common Law of Southern Slavery
Wahl’s fine book makes three important contributions to the study of the legal system within which southern slavery was organized. First, she provides a comprehensive survey of common-law cases, including the relationship between slave cases and those involving free workers, family members, and livestock. Second, she sets out an interpretive scheme within which the cases may be analyzed, particularly the controversial tension between slaves as property and slaves as members of humanity. Finally, she proposes that the incorporation of slaves into the common law of property rights produced important precedents for the subsequent, post-Civil War evolution of labor litigation that had a remarkably modernizing impact on, for example, cases involving corporate liability for employee injuries. All three contributions are laid out in a book of remarkable grace and clarity. The prose style is efficient and spare, and the accompanying notes in the back of the book are appropriately amplifying and, compared to the text, luxurious. [End Page 341]
The foundation for Wahl’s study is an exhaustive data bank of 10,989 common-law cases involving one or more aspects of the slave system. Well over 50 percent of these cases involved the transfer of slaves between owners, either through cash sale or other means, such as bequests; 20 percent raised issues concerning the relative rights of blacks, both slave and free, in criminal cases and southern antebellum society in general. One analytically crucial area, the hiring of slaves, comprises only 6 percent of the total; a large residual category makes up the remainder. Although cases decided prior to 1800 and after 1865 appear in this collection, the large majority of the decisions were handed down between 1830 and 1860. The geographical breadth is impressive: At least 100 cases from Delaware, the District of Columbia, Kentucky, Maryland, and Missouri, as well as all the former states of the Confederacy excepting Florida, are included (although Virginia seems underrepresented, given its importance both to the southern law and the political economy of plantation slavery).
Wahl also summarizes dozens of other cases involving free-labor contracts, injury liability, and family relations as foils for her primary analysis. In general, she sees the slave system through the lens of the courts, not the plantations, because slaves as independent litigants had no more standing under the law than did livestock. For that reason, most exploitation of blacks upon the antebellum plantation lies beyond the scope of this study.
The interpretive framework is organized around a concept of efficiency in the utilization of property, particularly the efficient assignment of responsibility for risk and disincentives for misrepresenting the quality of goods (for example, in this context, the age, skills, and health of slave labor). This approach works well when the contesting interests of owners and other private parties (such as renting employers) are examined. The state courts, in slave cases, appear to have incorporated many of the principles that Wahl posits, and these principles, in turn, are of substantial value in categorizing and critically evaluating individual decisions. In particular, the framework allows a close examination of the differences between the cases involving slaves, as sentient beings, and livestock. This examination permits Wahl to demarcate more precisely the tension between slaves as property and slaves as humanity under a general profit-maximizing economic regime (whether we call such a regime capitalist or not). Her conclusion is that this tension was manageable and that the courts were well along in the process of incorporating slavery into a modern form of property rights by the time the Civil War erupted.
Wahl’s implicit view is that slavery as a form of labor organization is static; the courts gradually perfected a legal order for a relatively unchanging system. In order to explain cases in which the courts clearly transgressed on property rights, she postulates a collective “social interest” that compelled judges, as guardians of the social order underpinning [End Page 342] slavery...