Ariela Gross


Jurists in the antebellum American South considered slaves to have the "double character of person and property" under the law, which generally meant that slaves were persons when accused of a crime, and property the rest of the time. Indeed, when slave buyers felt their newly acquired human property to be "defective" physically or morally, they sued the sellers for breach of warranty - just as they would over a defective horse or piece of machinery. Similarly, slave owners sued hirers, overseers, and other white men who beat or neglected their slaves for damage to their property. Yet in these mundane civil disputes, the parties in the courtroom brought into question, and gave legal meaning to, the "character" as well as the resistant behavior of enslaved people who persisted in acting as people.

Of course, horses could run away or be recalcitrant without being human, leading one historian to suggest that slaves influenced the law merely in the way that horses influenced the law. Indeed, some legal historians have denied the existence of any "person/property" tension in the law of slavery at all, arguing that slaves were simply property with human qualities. From this perspective, any contradictions in slavery law can be explained by slaveholders' efforts to shape the law instrumentally to serve their own economic interests. Yet to argue that there were tensions in the law is not to suggest that the law did not bolster the slave economy, nor is it to suggest that the typical Southern slaveholder or jurist suffered great angst over treating people as things. Rather, I will argue that slaves themselves influenced the law far more than things or horses ever could. In civil disputes such as warranty suits, slaves forced the law to consider their character, challenging slaveholders' self-conception as masters and statesmen. In other words, these cases mattered to white Southerners because their self-understandings as white masters depended on their relationships to black slaves; putting black character on trial called white character into question as well.