The Concept of Property and Ownership in the Antebellum American South: Slaves, Slaveholders, Theft, Conflict and the Law

By John Wood
Interstate - Journal of International Affairs
2015, Vol. 2014/2015 No. 1 | pg. 1/3 |

The role of personal property in our lives is one that to a very great extent we take for granted. We, in a crowded country such as the UK, all clearly understand that some things are ‘ours’, some things ‘others’ and some things ‘public’, most people in Western society have a fully developed conception of ownership and property from an early age. For slaves, condemned by law to be treated as property due to being the descendants of black Africans imported in the pre-revolutionary period,1 and their white masters, as those who owned other human beings as property for agricultural and domestic labour, this conception of ownership must have been more complex. For the master, was ownership of the slave the same to him as the ownership of livestock to a farmer today, or did the rational status of the slave make it something else? For the slave, did his or her status as chattel property change his or her conceptions of ownership? Following current trends in historiography, can, for the slave, the act of claiming ownership or property be seen as a customary matter evolved over time between him and the master, or was it an act of rebellion? The evidence suggests that both these ideas were true at the same time.

This project seeks to explore the concept of property for slaves and slaveholders in the antebellum period (1783-1860), through a comparison of the legal, customary and normative concepts of ownership of these groups to synthesise what property and ownership actually meant for the people of the region in this period. Property can be defined in the physical sense, but also has a metaphysical component. In this essay, some of the conflicting conceptions of property and ownership for the various groups of the Old South can be seen, and they are very different to our own.

In the first section, the study of philosophy of property and ownership as relating to slavery and the South will be explored to try and find a ‘platonic ideal’ of property rights and law in the South. In the second section, the perception of the slaves towards property will be investigated using, primarily, the testimonies of the Federal Writers Project, a part of the Roosevelt Administration’s efforts to provide government sponsored work to ameliorate the Depression. The third section investigates the thoughts of the slaveholder class on ownership, most particularly through the ample source material provided by slaveholder’s diaries and the edited collection Advice Among Masters, as they are in some ways the link between the radically different conceptions of property of the legal and customary spheres.

The Concept of Property in Philosophy and Under Law in the South

The philosophical justification of the ideas of ownership and property within the Constitution and laws of the United States relies to a great extent on the works of the philosopher John Locke. It was in the formulation of the Constitution of the United States by Thomas Jefferson that ideas, proposed in Locke’s Two Treaties of Government, were first tested, and from this the basis of the conception of property and ownership in the United States emerge. James Huston characterises the importance of the concept of property at the time of the Revolution as ‘at times appearing to be a monomania.’2 As an overview of Locke’s idea of the role of property and ownership, he suggests in the Second Treatise that things that exist ‘in the state of nature’ (for our purpose the undeveloped land of the continental US) become property through the work put into them and so the value added to them. This can either take the form of our personal labours3 or through the value we place upon items through investing our money in them.4

It is in the common protection of this property, according to Locke, that a society forms a government, and when that government no longer protects property those who are under it have the right and duty to overthrow and replace it with one that will.5 Liberty and property were thus linked in the nascent political class of the United States from the outset.6 For an examination of this idea in the wider context of 19th century American history, the ideas both of how Lockean property rights impacted US expansionism and its attitude towards other races, both Walter La Feber’s The American Age, Volume one, and Michael Hunt’s Ideology and US Foreign Policy are excellent starting points.

The founding fathers, particularly Jefferson and Alexander Hamilton, were some of the first to consider the philosophical implication of slavery and property within the new nation, and also suffer discomfort with the results. They could not reconcile the legitimacy of slave ownership with Locke’s theory of ownership. Samuel Adams, the cousin of the second president and revolutionary polemicist sums up the ambiguity well:

Men therefore, in society having property, they have such a right to the goods, which by the law of the community are theirs, that no body [sic] hath the right to take any part of their substance from them without their consent.7

Patrick Henry also commented on the relation of property rights with regard to slavery:

‘What is the inference when you enumerate the rights which you are to enjoy? That those not enumerated are relinquished? … To talk of it as a thing subsequent, not as one of your inalienable rights, is leaving it up to the casual opinion of the Congress… [to] … liberate every one of your slaves, if they please: and this may be done by men with no common interest with you… …The majority of the congress is in the north and the Slaves to the South. In this situation I see great jeopardy’.8

In this it can be seen that from the beginning it was understood that there was a tension between the theory of ownership and the custom that made the law. Locke had posed that by his own labour a man was made, and the customs of society could not take what was his except by his consent. Slaves were not considered their own property, and they certainly had not been given, or could be given, the right to decide their status.9 The law they had, rather than their ideal conception, was that descended though English common law, and blended through the individual states legal systems.10 The de facto definition was a circular one; property was an object of personal possession that the law protected, yet possession was secured by the right to property.11 It was Samuel Adams’ ‘society’ rather than Lockean ‘natural right’ which governed the concept of property.

Jefferson was intellectually an abolitionist; his Notes on the State of Virginia speak for emancipation.12 But it would seem that over time his view on the ownership of slaves, especially after becoming President, became one of grudging acceptance.13,14 He believed that since slavery - though morally wrong was a legacy of English rule,15 the greater evil was the ‘tyranny of the majority’ over the rights of the slaveholding minority in the South,16 thus rationalising the status quo and placing societal norms once again at the centre of the debate over ownership of human beings. Hamilton also had a deep concern as to the nature of slavery as valid property; in The Farmer Refuted,17 using the Bible and the Declaration of Independence as his keystones for an argument that the principle of liberty and ‘natural law’ were ‘a gift of the beneficent creator to the whole human race… conformable to the constitution of man’.18 From this we can infer that Hamilton placed human rights above those of property rights in cases where they conflict, as the first conception of rights was universal, the second derived from society.19 Or to phrase it another way, Lockean protection of the self as a property right was meaningless if it could not be universalised.

This was where the debate on the nature of slaves as property rested until the 1850s. At this time, the differing application of the Lockean nature of property was once again taken up as a point of issue in the pro-slavery versus abolitionist debate. At this point the philosophical nature of slave ownership was refined, and given its clearest philosophical form by the former professor of Law at the University of South Carolina, Francis Lieber, in 1857:

‘Properly speaking… the slave himself is not property but his labour is. Property involves the idea of a free disposal over the thing owned… we possess no such right over the slave and have never claimed it. We own the labour of the slave and this cannot be done without keeping the person performing the labour, thus owned, in bondage’.20

From this perspective the slave as property had a duty of labour and obedience to his master, as the master is the protector of the slave and provides him with a comfortable subsistence. Thus a Hobbesian approach is used to bypass the perennial problem of Locke’s idea of the self as property, and this also is the explicit formulation of the southern paternalist paradigm.21

The role of the law in slavery was in some ways as rarefied as the concept of property within the philosophical sphere. Slaveholding elites did not pass slave codes to control their own slaves, whom; of course, they already held power over and could practice the ideal methods to keep in line. Instead, slaveholding elites passed laws to ensure compliance on their neighbour’s slaves, the dangerous alien faces of the next plantation. The various slave codes of the States which emerged through the colonial period provided that the rights of the slave under the law did not extend to ownership or inheritance of any property,22 save that which was given by their master to them:

‘Our slaves can do nothing in their own right ; can hold no property ; can neither buy, sell, barter, or dispose of any thing[sic], without express permission from the master or overseer ; so that every thing [sic] that they can possess or do is, in legal contemplation, on the authority of the master’.23 (Virginia, Civil Code Article 1405).

Or that of the Louisiana Civil Code (article 135):

A slave is in absolute bondage; he has no civil right, and can hold no property, except at the will and pleasure of his master; and his master is his guardian and protector; and all his rights and acquisitions and services are in the hands of his master. A slave is a rational being, endowed with volition and understanding like the rest of mankind, and whatever he lawfully acquires, and gains possession of, by finding, or otherwise, is the acquirement and possession of the master.24

An elaborative example of this can be seen in a judgement when the State of Louisiana judged that any property found by the slave (in this case a small sum of money), but not known to the master, which was then taken from the slave by a third (free, white) party counted as theft from that slave’s master.25

When taken to its extreme, this situation of denial of any the extremity of a slave’s lack of property under the law seems radically different from any modern perceptions. Under the Louisiana Civil Code a slave was not considered to ‘possess their own blood’, the reasoning being that should one of their relatives (through the matrilineal line as this precluded the legal notion of fatherhood) ever be free and then accumulate any goods or wealth; then there was the possibility should they die intestate, that the slave could become the rightful heir.26 From this, we can draw a key point of this legal position on slavery. If a slave is not in possession of their ‘blood’, as the code puts it, then it becomes very hard to claim that there is any recognition of the slave as a social being. Thus under civil law the slave becomes an atomised being of labour, any family is regarded only as a matter of pedigree.

The great issues for the legislators working in the South were how to reconcile the fact that the slave, although capable of adding value to property, should not own it, and for the slave owners to reconcile the legal framework with the everyday normative and customary situations they faced. It would seem that under the law the nature of the slave as property was actually contextual, as in certain, usually negative, conditions the slave would transcend their role as property and once again be seen as a person.27 For the slave the Lockean concept of labour became one defined by its negation. A slave could not own a horse, but by his labour he could steal one. If the slave was caught he would be tried as a person rather than property (should they not be subjected to summary justice). The seemingly monolithic prohibitions on the slaves’ rights break down at this point. Within the sphere of civil law the slave is property, without possession of legal volition or reason, whilst for the criminal sphere the slave is a person, though his rights and responsibilities are subsumed to those of the master. This dual nature can be seen in relation to our question through the case of The Parish of St. Landry v. George (a slave). In this case of 1831, George had been found guilty of taking various small items from several local whites, but in punishment he was to be given ’39 lashes, and well given’, as well as wearing an ‘iron collar of 5lbs weight, with three prongs put around the neck,’ for one year. The master in addition to this personal culpability of the slave had to pay reparations and damages, as well as court costs.28

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