LAW AND LIBERTY; SLAVERY AND POSITIVE LAW

I. INTRODUCTION: The Great Anomaly--think about our discussions and your readings for the past three weeks: all about freedom, due process, popular sovereignty, a society of law not men--where does slavery fit into this picture of legal development: slaves assuredly are not free; nor do they have the same access to due process and voice (popular sovereingty) as free people; and they are subject more to the will of men (their masters and mistresses) than they are guarded by the law--also think of last week and the law as the instrumental servant of the economy, unleashing the creative energies of capitalists (businesspeople) who through their own free will, volition, and voluntary consent enter the marketplace to make uncoerced bargains and contracts that promote economic growth and communal well-being--the realities of a slave economy in the larger economic landscape.

1. The Lesser Compromises: remind class of the 3/5 clause; the fugitive slave clause; and the slave trade clause--the anomaly of the Continental Congress outlawing slavery in the Northwest Territory, and the Constitutional convention unable to reach consensus on the framework for a new government until slavery is acknowledged and legitimated--slavery in society, the economy, and the white mind at the founding of the new nation.

2. Slavery: A National Institution--final emancipation not achieved in New York and Pennsylvania, for example, until the second and third decades of the 19th century--the persistence of the slave heritage: franchise denial and closure of public accomodations and even legal residence in many northern states--think of the Boston school segregation case in your documents book (1849); Massachusetts a state that enfranchises blacks and confers citizenship on them, yeet think of the meaning and significance of Judge Lemuel Shaw's ruling: "all persons without distinction of age or sex, birth or color, origin or condition, are equal before the law....But, when this great principle comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion, that men and women are legally clothed with the same civil and political powers, and that children and adults are legally entitled to have the same functions and be subject to the same treatment; but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law, for their maintenance and security."

1. Common Law and Slavery: the Somerset Decision (1852)

2. Slave Codes and their Provisions: From loose to tight; from paternalistic to cruel; even to the denial master's rights to educate slaves, emancipate them, bequeath wealth in any form to them.

3. A Chattel Property with Personality and Volition: the paradoxes or contradictions that this creates at the law--noone would consider filing charges against a cow, a pig, a mule, a plow, a hoe--yet slaves are charged with misdemenors and felonies, and subject to different penalties and rules than free white people; masters/owners are not indicted and tried for abusing their livestock or personal property, yet they are legally culpable for abusing chattel slaves within the terms established by the slave codes and common law principles as applied to slaves by Soutghern judges.

4.. The Paradox of Due Process: think of the cases cited in Hall and excerpted in your documents book and try to make sense of how Southern judges deal with slaves as defendants or accused parties--the governing assumption as to why masters will treat their slaves with consideration and not abuse them--yet how to treat a master who abuses a slave: what happens if the law punishes the commonplace abuser; a challenge to the institution of slavery which depends upon complete subjection of the slave to the will of the master--the case of State V. Mann (1829) and Judge Thomas Ruffin: to dilute the power of the master is so subversive of the institution that Ruffin finds for a defendant who has shot a slave that he rented, and allows the owner no legal restitution: a leading common law judge bred to the concept of how due process must protect life, limb, and property--yet rules that "The Power of the master must be absolute, to render the submission of the slave perfect....We cannot allow the right of the master to be brought into discussion in the Courts of Justice."--Or think of the master who murders his slave in the most cruel and inhumane manner imaginable (even Clarence Thomas would have to call it constitutionally indicted cruel and inhuman punishment) and the penalty meted out by the court--or consider the Mississippi case, Mitchell v. Wells (1859) in your documents book, and the court denying a slaveowner the right to confer a bequest upon his own daughter, whom he had emancipated in Ohio, because the law in Mississippi intends "to protect, preserve, and perpetuate the institution of slavery...and to prevent emancipation generally of Mississippi slaves." Or where that court places the slave "in the order of nature...[occupying] an intermediate state between the irrational animal and the white man."

1. Traditional Master-Servant Law and Absolute Liability

2. Leased Slaves and Lines of Responsibility

3. Who Pays? A question of power--where large slaveowners dominant, leasees compensate owners and slave torts do not result in damages--where free whites dominate, courts often find masters liable for slave acts.

V. Conclusion: A Constitutional/Legal Crisis--explain how and why the anomaly of slavery creates the crisis.