Abstract
Excerpted from: Thomas D. Russell, Articles Sell Best Singly: the Disruption of Slave Families at Court Sales, 1996 Utah Law Review 1161 (1996) (253 Footnotes) (Full Document)
Slave auctions and the breakup of slave families that resulted from these sales were focal points of abolitionist criticism of slavery in the United States. Historians of slavery have examined slave family disruptions intensively, with special attention to the role of slave sales in breaking up families. Scholars have tended to focus on commercial sales of slaves, and although they have taken notice of court-ordered or court-supervised sales of slaves, they have usually not devoted sustained attention to these court sales. Recently, as the legal history of slavery has grown as a field, legal historians of slavery have begun to direct more attention to the role of courts in conducting slave sales, and some legal historians have also drawn attention to the breakup of slave families during court sales.
In this Article, I focus on the role of courts and law in the disruption of slave families. I demonstrate that the incidence of slave family disruption at court sales was very high and that court sales disrupted markedly more slave families than noncourt or commercial sales.
In Part I, I show that a majority of the South Carolina slaves sold at court sales were offered for sale individually. I also explain *1163 that the general rule in other states was that slaves be offered for sale singly at court sales. Individual sale was not an exceptional measure that took place only under extended circumstances. The general practice was not of humane family preservation occasionally overcome by economic demands. The empirical pattern of South Carolina court sales matched other states' judicial legislative directive.
In Part II, I compare the risk of family separation at court sales with the risk at commercial sales. I conclude that the risk of family disruption may have been nearly three times greater at court sales than at commercial sales. In Part III, I present evidence that the destruction of slave families at court sales released more capital than if families remained intact. That is, individual sale protected those who held property interests in slaves at the expense of the slaves' filial ties. Finally, in Part IV, I combine the instrumental analysis of the preceding three sections with an analysis of the ideological function that law served in constituting justifications for family disruptions at court sales. I argue that legal institutions facilitated the disruption of slave families not just by conducting sales but also by masking human agency in the destruction of families. Law helped to naturalize family disruption by presenting family breakups as necessary. I show that the agents and rules of law worked together with the economic motives and racist ideology of Southerners to make the disruption of slave family life both efficient and easy.
With regard to slave sales, my findings with regard to court sales largely coincide with the findings of important new scholarship regarding noncourt aspects of the domestic slave trade in the United States. In a fine recent work that I discuss at length below, Michael Tadman has demonstrated conclusively the extensive, willing involvement of Southern slaveholders in the domestic slave trade. He has focused especially on the commercial, interregional trade, which took place between the Upper South and some seaboard states to the Deep South. Tadman has calculated the extent of the interregional slave trade and documented the frequent slave family disruptions that took place as a consequence of the trade. I revise Tadman's conclusions regarding the importance of court sales in disrupting slave families. Tadman concluded that the extent of disruption was relatively low at court sales. I reach the opposite conclusion and show that disruption was the norm at court sales. I couple this conclusion with my finding that court sales of slaves were more extensive than historians have previously imagined and argue that court sales disrupted more slave families than commercial sales.
My conclusions regarding the results of court involvement in the sale of slaves offer fresh insight into the relationship between the Southern legal system and slavery. In a series of articles written in the 1970s, Keir Nash concluded that “considerable fairness,” “relative fairness,” or “solicitude” characterized the treatment of slaves by appellate court justices. I have shown in previous work dealing exclusively with South Carolina that courts conducted one-half of all slave sales. My findings regarding the disruption of slave families at sales that court officials conducted or supervised demonstrate that Nash's conclusions should not be extended to either the courts or the legal system as a whole. “Solicitude” certainly does not characterize the pattern of family disruption at court sales. Furthermore, even within the realm of appellate courts, my evidence shows that appellate justices insisted that slaves be sold in a manner that maximized the risk of family disruption. Thus, Nash's findings of solicitude and fairness must be confined to the narrow categories of cases that he examined: white assaults on and murders of slaves and free blacks and manumissions.
Looking outside of legal history to the general context of the history of slavery and the South, my findings in this Article with regard to court sales contradict the argument that paternalism characterized antebellum slavery. Eugene Genovese has made this argument for a number of years, and Mark Tushnet has applied Genovese's argument to the specific context of the legal history of slavery. With regard to paternalism, Herbert G. Gutman noted in his 1976 book, The Black Family in Slavery and Freedom, that
Genovese's insistence that “many slaveowners went to impressive lengths to keep slave families together,” that “the more paternalistic masters betrayed evidence of considerable emotional strain” when faced with sale, and that “an impressive number of slaveowners took losses they could ill afford to keep families together” [was not a substitute] for sustained analysis of how local and interregional sale, involuntary migration with an owner, gift-transfer, and estate division affected the immediate slave family and enlarged slave kin group.
Michael Tadman has since completed his analysis of local and interregional sales as well as owner migrations, focusing largely, though not exclusively, on noncourt sales. Tadman has concluded that Genovese “very seriously underestimated the scale of family separations generally.” More strongly, Tadman argues that “the pervasiveness of slave and of family separations suggests the theory of a ‘delicate web of paternalism’ is inappropriate.” Tadman emphasizes that slaves could not have participated in the reciprocal relationship of paternalism that Genovese believes characterized antebellum slavery. Tadman explains that “[t]he family was at the very heart of slave culture … so that, it seems, family separations formed a vital yardstick by which to judge masters and, indeed, to reckon with the whole relation between slave and slaveholder.” Rather than being tied together in a “delicate fabric of implicit reciprocal duties,” Tadman argues that “[b]lack and white values relating to the slave family kept masters and slaves largely in separate, segregated worlds.”
I add law to this picture and provide the evidence that Gutman suggested was needed concerning execution and other court sales. I view law as neither peripheral nor marginal to the operation of slavery as an economic or social system. As well, I regard law as an expression--albeit not a simple one--of Southern values. Evidence of the extent of separations at court sales bolsters Tadman's argument that Genovese underestimated the extent of family separations. More generally, the extent of court-sale family disruption undermines Genovese and Tushnet's view that paternalism characterized antebellum slavery. The operation of the Southern legal system at court sales clearly expressed Southern disregard for slave families. To be sure, this disregard was not monolithic, and Southern discourse commonly contained expressions of solicitude for slaves and their families. However, just as Tadman has found the practice of slave selling at odds with Southern discursive practices, I conclude that the law in action spoke louder than words when it came to the preservation of slave families.
I. Individual Sale of Slaves by Courts
Antebellum courts routinely sold a great many slaves. Courts conducted one-half of all slave sales in South Carolina, for example. Courts were probably involved in similarly high proportions of sales in the other slave states. There were three principal types of court sales: sheriffs', probate, and equity-court sales. The most frequent circumstances that led to these sales were debt and/or death. Sheriffs' sales accounted for forty-five percent of all South Carolina court sales of slaves; probate for forty percent; and equity court sales for the remaining fifteen percent.
A very large fraction of the slaves whom courts sold were offered for sale individually rather than as part of family or other groups. Sale books indicate that fifty-two percent of the slaves sold at court sales were sold individually. That is, slaves who were sold one-by-one comprised just over one-half of all the slaves whom South Carolina sheriffs, probate officials, and masters in chancery--to whom I will collectively refer to as law's agents--auctioned on the courthouse steps. Nearly sixty percent of the slaves sold individually were males. The entries in the sale books contain very little information regarding individual slaves--usually just names, sales prices, and the buyers' names. However, one can safely assume that many of the males selected for individual sale were in their teens and twenties: “prime” males in the trade jargon. Thus, individually auctioned slave men--all of them sons, some husbands, and some fathers-- comprised twenty-nine percent of all the slaves whom courts sold.
My empirical findings regarding the incidence of individual slave sales in South Carolina coincide with conclusions of James W. McGettigan regarding probate sales in Boone County, Missouri. McGettigan gathered data for 1078 slave sales; most were sales of decedents' estates, although McGettigan does not offer an exact figure. McGettigan found a very high proportion of individual sales, including those of children. Thirty percent of the slave sales that McGettigan examined were single sales of children younger than fifteen years old. McGettigan does not report the total fraction of all slaves who were sold individually, but the very high proportion of sales of individual children suggests that the inclusion of slaves older than fifteen would push the percentage of individual sales near or above fifty percent. The Boone County data that McGettigan collected show that in Missouri, as in South Carolina, the pattern at court sales was for a great proportion of slaves to be offered individually for sale.
Not surprisingly, given this high rate of individual sales, McGettigan found that “[s]lave sales to settle estates frequently resulted in the separation of an entire slave family within the county.” He provides a series of examples of divisions that resulted from probate sales. In 1849, probate officials divided and sold the property of the estate of Joseph Fountain. The court's agents allotted a thirty-seven-year-old slave named Lucinda and her seventeen-year-old son to Fountain's widow; six different buyers purchased Lucinda's six other children, who ranged in age from one to eleven. Such family disruptions were the norm rather than the exception at the Boone County probate sales that McGettigan examined. “[M]ore often than not,” McGettigan observed, “slave families within the county were separated by sales and estate divisions since they became the property of different buyers or heirs.”
My findings regarding slave sales diverge most sharply from Tadman's with regard to the incidence of individual sale at court sales. Tadman emphasizes the sale of slaves in groups--family and otherwise--at court sales. For example, he has argued that slave traders purchased few of their slaves at court sales, because “[t]raders preferred to buy slaves singly (rather than buying the families and mixed age groups often offered at judicial sales).” Tadman believes that one of the reasons that traders bought relatively few of their slaves at court sales is that there were few individual sales of slaves at court sales. “The mixed lots available at judicial sales … were not well suited to the traders' purposes,” he argues. Tadman does not mention and seems unaware that appellate courts expressed a general rule favoring individual sale of slaves at court sales. As well, when he discusses McGettigan's conclusions concerning Boone County sales, Tadman misses an opportunity to observe that the empirical pattern at court sales was very oriented toward individual sales. He demonstrates that the commercial, interregional slave trade very systematically disrupted slave families, but he contrasts the interregional trade with local sales, that is, transactions in which the seller sold to a buyer who remained with the slave in the local area following the sale. Tadman estimates that sixty percent of local sales were court sales. He notes that local sales “were in general not so systematically oriented toward separation as was the interregional trade.” I believe instead that court sales were very systematically oriented toward the disruption of slave families. In this way, court sales resembled the interregional trade, although, as Tadman points out, the results of separation following a local sale need not spell the absolute destruction of filial relationships as, for example, a husband and wife whom different local buyers purchased might still have some chance to see each other.
Individual sale obviously raised the risk that a slave would be separated from family. Given the spareness of the court-sale records, the incidence of individual sale is one of the few variables that I can draw from the sources in order to compare court sales with commercial sales. However, for at least three reasons, incidence of individual sale is an imperfect indicator of actual family separations. First, because a buyer could accumulate a family's fragments through separate purchases of individuals, the incidence of individual sale overrepresents separations. Individual sale always posed the risk of separation, even though no separation actually resulted. The incidence of individual sale was an expression through law of the willingness to disrupt families.
Second, the incidence of individual sale would overrepresent separations-- both actual and possible--in those cases in which slaves had been previously sold away from family or had no living relatives. In such circumstances, subsequent individual sales would not represent family separations, although these sales were separations from familiar faces and friends. Third, the incidence of individual sale also underrepresents family breakup, since division of families into small groups would also disrupt families even if there were no individual sales. Two other variables that I can draw from the court data--the size of groups sold and the incidence of sales of mothers with children or husbands with wives and, sometimes, their children--help to correct this underrepresentation.
How or why sheriffs, probate officials, masters in chancery, executors, and administrators--to whom I will refer collectively as either law's agents, agents of the courts, or officials--decided to sell some slaves individually and others in groups is not explicit in the sale records. As I will discuss below, law's agents were subject to a legal duty to maximize sale proceeds. In addition, the judges who supervised these sales and the persons who shared in the proceeds of these sales believed that selling slaves individually maximized the proceeds from sales. The fiduciary duty to sell for the highest possible price thus translated into a duty to sell slaves individually. From this general rule, there were some departures, which I will also discuss below.
Although courts were systematically oriented toward individual sale, not every court sale of a slave was an individual sale. South Carolina officials sold some slaves in groups in order to preserve what I term family fragments-- an aptly infelicitous term. Women with children but without the children's fathers amounted to 24.3% of all the slaves sold at court sales. These fatherless mother-child groups comprised a slim majority (50.5%) of all those sold in groups. The average size of these family fragments was 3.1, with a median group size of three, that is, a mother and about two children, presumably the youngest. In all, varying constellations of family fragments comprised 32.7% of all the slaves sold. So, just over one-half of the slaves were sold as individuals and just under one-third as family fragments; the remaining slaves--15.5% of the total--were sold in groups or gangs. The court-sale records offer no clues regarding the relationship of slaves within these groups, and some of these slaves probably did share family ties.
Although law's agents did keep family fragments together in South Carolina, no law prevented them from selling each slave individually. Indeed, as I have mentioned, the legal preference was for individual sale. Slave family relationships enjoyed no statutory protection at sales in South Carolina. Laws protecting any type of slave family relationship existed in only three states--Alabama, Georgia, and Louisiana. In these three states, statutes protected a limited type of relationship, that of mothers to very young children. The extent to which the statutes in these states actually prevented family separations is unclear, in part because there are no empirical studies and also because two of the statutes explicitly allowed exceptions to the no-separation rule.
Louisiana passed the earliest no-separate-sale legislation. An 1806 statute prohibited sales of children under the age of ten apart from their mothers. However, the statute may not have applied when slaves were seized for debt or to sales associated with the division of a decedent's estate. Decades later, Alabama and Georgia passed statutes that limited the separation of young children from their mothers at court sales, though not at commercial sales. Like the Louisiana statute, the Alabama and Georgia statutes did not protect the relationship of slave fathers to their children nor did they protect family relationships when the children were older than ten. The Alabama Code provided that officials who sought to seize and sell the assets of a slaveholding debtor must include slave mothers along with children under ten years old. The rule was absolute for children under five years old, but there was an exception for slave children between five and ten years old if one of the parties to the legal action produced an affidavit showing that “he believes his interest will be materially prejudiced, by selling the slaves together.” The Alabama Code also provided that “[i]n all sales of slaves under any decree, or order of the chancery or probate court, or under any deed of trust, or power of sale in a mortgage, the slaves must be offered, and, if practicable, sold in families.” However, as with the provision regarding children between five and ten years old, this directive that slaves be sold in families allowed exceptions when an interested party provided the requisite affidavit to the court official in charge of the sale.
Similarly, the Georgia law of 1854 directed that probate sales should not separate children “not exceeding five years of age” from their mothers, but the statute allowed for an exception when “such division cannot in any wise be effected without such separation.” In his 1858 treatise The Law of Negro Slavery, Thomas R.R. Cobb, who was a Georgian, lauded this Georgia law as a model for other states. He also suggested statutory reform that would protect slave marriages at court sales. As he made the suggestion, he minimized the incidence of such disruptions. Cobb wrote that “[t]he unnecessary and wanton separation of persons standing in the relation of husband and wife, though it may rarely, if ever, occur in actual practice, is an event which, if possible, should be guarded against by the law.” But before proceeding to his suggestion for reform, he offered a counterargument in support of the separations of husbands and wives. Against the idea that law might guard against separation, he wrote:
And yet, on the other hand, to fasten upon a master of a female slave, a vicious, corrupting negro, sowing discord, and dissatisfaction among all his slaves; or else a thief, or a cut-throat, and to provide no relief against such a nuisance, would be to make the holding of slaves a curse to the master.
With this assertion, Cobb implied that family separations might have taken place because the slave husband was vicious, insufficiently servile, or a criminal--in other words, that the separated wife and her master were better off without her husband, who deserved his separate fate. Even so, Cobb suggested that “[i]t would be well for the law, at least, to provide against such separations of families by the officers of the law, in cases of sales made by authority of the Courts, such as sheriffs' and administrators' sales.”
Cobb's observation regarding the infrequency of the disruption of slave marriages was a myth in support of the institution of slavery. In the same year that Thomas Cobb published his slavery treatise, another Cobb--Howell Cobb, the compiler of the state's official statutes--offered a more accurate view of the protection that slave families enjoyed at court sales when he testified at a Georgia equity trial regarding the practice of slave selling at court sales. At issue was the manner in which the Houston County sheriff had sold thirty-two slaves in 1828. Howell Cobb testified because he had witnessed the sale, not because he possessed some larger authority by virtue of having published the state's statutes. On appeal to the Georgia Supreme Court, Judge Henry L. Benning summarized Howell Cobb's testimony by stating that Cobb's “attention was called to the sale because the manner of the sale was unusual, and the negroes were not put up in the usual way, but all in a lump.” Judge Benning further explained Cobb's testimony by stating that “[i]t is not usual to put up negroes in families at Sheriff's sales.”
Howell Cobb's testimony set the Georgia law protecting the relationship of young slave children to their mothers in a more accurate context than the myth that Thomas Cobb proffered. The Georgia statute, the similar laws of Alabama and Louisiana, and also the statute that Thomas Cobb proposed in order to protect slave marriages were not redundant legal protection of filial relationships that Southerners would otherwise disturb only rarely or never at all. Preservation of families was not the usual practice at court sales. Instead, the usual practice was the opposite: the disruption of families. The few statutes that prohibited the sale of young children apart from their mothers are evidence not of the general protection that slave families enjoyed at court sales, but are instead evidence of the generally destructive legal force that slave families experienced at court sales.
In his 1993 book, American Slavery, Peter Kolchin mistakenly asserts that “[t]hroughout the South, public sentiment reinforced legislation to discourage the separate sale of very young children.” Insofar as he suggests that legislation existed throughout the South to prohibit or discourage the sale of young children apart from their mothers, Kolchin is wrong. At commercial sales, only the Louisiana statute specifically protected the relationship of young children to their mothers. Regarding the separate noncourt sale of young children in the other fourteen slave states, there was no legislation for public sentiment--if it existed--to reinforce. The statutes of Alabama and Georgia, not enacted until the 1850s, applied to court sales, not to commercial sales. And, as noted above, the Alabama and Georgia statutes allowed exceptions to the general prohibition. Kolchin is therefore wrong about the prevalence of statutes that protected young children. The statutes of Alabama, Georgia, and Louisiana represented a general pattern only to the extent that they revealed the general lack of protection for slave families.
Kolchin also misleadingly suggests that there was strong public sentiment in the South discouraging the separation of young children from families. Of course one cannot poll antebellum Southerners to ascertain public sentiment in the same way that one can determine how many states had laws regarding the separation of family members. Southern discourse did include paternalistic discussion regarding slaveholders' protection of slave families. However, there was dissonance between the discourse and the practice, just as Thomas Cobb's pious writing regarding the infrequency of the disruption of slave marriages conflicted with Howell Cobb's observation regarding the conduct of sheriffs' sales.
Tadman has presented substantial information regarding the separate sale of children and the attitudes of Southern slaveholders with regard to slave sales. Tadman has shown that antebellum slaveholders were less reluctant to sell their slaves than they professed and that too many subsequent historians have uncritically accepted the antebellum Southern discourse regarding reluctance to sell slaves. Tadman has demonstrated that slaveholders were willing, even enthusiastic, participants in the slave trade. With regard to the interregional slave trade, his principal focus, Tadman has shown that the frequency of separate sale increased with the child's age. He has determined “that probably some 2 percent of the trade was made up of children aged 0-7 years, forcibly separated from parents, 7 percent by separations of 8-11-year-olds, and 14 percent by 12-14-year-olds who were sold away from parents.” Twenty-three percent of the interregional trade consisted of children fourteen-years-old or younger. Depending upon where one draws the age line for “very young,” these data may suggest support for Kolchin's assertion regarding public sentiment. However, Tadman has also concluded that the reason for the relatively low percentage of sales of the youngest children was not “sentiment” but rather that these children's “level of independence and work output did not yet justify” their separate sale or purchase. In all, Tadman has shown that “the tendency was overwhelmingly toward breaking up families for speculative profit.” He explains that “[e]conomic self-interest combined with profound racism to make this practice possible.” This racism included a view of blacks as intellectually and emotionally incapable of sustaining lasting family ties. A less misleading way to restate Kolchin's assertion regarding public sentiment and the separation of young children, then, would be to say that the relatively low demand for the separate sale of the very youngest children reflected the correspondingly low demand among buyers for such young slaves.
Notwithstanding the limited formal protection of mother-child relationships in the statutes of three of the fifteen slave states, and contrary to the suggestion that public sentiment favored family integrity, the legal preference and practice at court sales throughout most of the South were for individual sale of slaves. Forty years ago, Kenneth Stampp concluded that “[i]n ‘execution sales,’ except for mothers and small children, family ties were ignored whenever it was beneficial to the debtor.” Stampp's observation was true for not just execution or sheriffs' sales, but for all court sales. However, the disruption was more pervasive than Stampp suggested. The limitation on family disruptions that Stampp mentioned-- “whenever it was beneficial to the debtor”--almost always applied. Those who conducted court sales regarded separate sale of slaves as generally beneficial to the debtor. At court sales, the usual practice was to sell slaves singly. As Edward W. Phifer noted in his 1962 study of Burke County, North Carolina, “Auction sales at the courthouse door … were unaffected by sentimental considerations.” Family preservation was not the norm, disruption was. Individual sale was not in any way an exceptional practice.
In 1830, Judge (later Chief Justice) Thomas Ruffin of the North Carolina Supreme Court offered instruction regarding the preference for individual sale. Judge Ruffin, who was one of the United States's most important legal minds in the first half of the nineteenth century and who wrote a number of influential opinions regarding slavery, wrote in Cannon v. Jenkins that “[t]he Court does not favor sales by executors in large masses.” But Judge Ruffin's view was stronger than merely not favoring group sales of slaves: He instructed that “[m]ost commonly the articles sell best, singly; and therefore they ought, in general, to be so offered.” In Cannon, the “articles” in question were four slave brothers, the oldest of whom may have been eight, with the youngest being twin four-year-olds. The administrator of the decedent's estate had sold the four boys together--“in a lump” was the phrase that Judge Ruffin, like Howell Cobb, used--and the beneficiaries of the estate argued that had the boys been sold individually, the total sales price would have been higher.
Judge Ruffin upheld the sale, because the price was sufficiently high, but he took time to make clear that he disapproved of the administrator's decision to sell the boys as a group. He noted that “it is the duty of the executor to get the most he can” and acknowledged, with evident racism, that “[i]t would certainly have been harsh to separate these four boys, and sever ties which bind even slaves together.” But, Judge Ruffin explained with his next sentence, “it must be done, if the executor discovers that the interest of the estate requires it; for he is not to indulge his charities at the expense of others.” The interests of the beneficiaries of the sale were clearly superior to the preservation of slave family ties in Judge Ruffin's starkly frank view. Although he wrote that “the Court would not punish him for acting on the common sympathies of our nature, unless in so doing he hath plainly injured those, with whose interest he stands charged,” his didactic message was that executors, administrators, sheriffs, and others who sold slaves at court sales should divide families before sale. Judge Ruffin understood that “[s]ometimes, indeed, as much, or more, can be had, when the property is disposed of in one, than in more parcels, as in the instance of a family of slaves, when the children are of tender years.” But Judge Ruffin warned that “he, who conducts such a sale, does it at his peril, and must answer for the true value, where the price has been materially affected by the mode of sale.” The safest course for someone who conducted a court sale of slaves, therefore, was to break up slave families and sell singly.
Judge Ruffin thus made clear in 1830 that the default mode for court sales of slaves in North Carolina was to be individual sale. Enforcement of this rule would be according to the usual common-law method of assessing personal liability against the seller who departed from the general rule. For example, when a New York or Massachusetts sheriff botched a sale--not a slave sale, obviously--the sheriff would be personally liable for the amount that should have been restored. As Judge Ruffin indicated, a seller who sold slaves in one “parcel” did so “at his peril” and, if the proceeds were less than what could have been gotten through individual sale, then the seller “must answer for the true value.” This was the form of Cannon v. Jenkins. The plaintiffs were the legatees of William Cannon, who would have received the additional proceeds had the four slave boys been sold separately. Charles Jenkins conducted the sale, and the legatees of Cannon sued not Jenkins, but his estate, for he, too, was dead. Were he liable in life for the reduced amount of the sales proceeds, then his estate would remain liable to those who should have enjoyed the proceeds. By assessing personal liability against administrators, executors, sheriffs, masters in chancery, probate officials, and any others who conducted judicial sales, judges and chancellors enforced the rules regarding how such sales should be conducted.
The rule that slaves should be sold singly was the same in Kentucky, as the justices of the court of appeals agreed in their 1811 opinion in Lawrence v. Speed. In his opinion for the court, Chief Justice Boyle observed that “it cannot be denied to be in general true that it is the duty of the sheriff to sell separately property which is divisible in its nature, and that he would be responsible for any injury done by a violation of his duty in this respect.” According to “its nature,” slave property was divisible, and the issue that the justices faced in Lawrence was whether the Mercer County sheriff should have separated a slave woman, Ruth, from her son, David, who was between two and three years old. The sheriff had levied on four slaves who were part of a decedent's estate; whether the four--Joseph, Milly, Ruth, and David--were a family, the opinion does not divulge. The Chief Justice recounted that “Joseph and Milly were first severally sold,” with Joseph being sold for $115.50 and Milly for $293.00. After the sale of Joseph and Milly, $250 to $300 of the debt remained unsatisfied, and the sheriff chose to offer Ruth along with her son David. He sold the pair for $400, which satisfied the debt and returned some cash to the decedent's estate. The plaintiff's complaint was that after selling Joseph and Milly, the sheriff might have satisfied the balance of the debt by selling either Ruth or her son, but that he need not have sold the two of them. Although the plaintiffs sought to have the sale declared void and wanted to recover the slaves themselves, Chief Justice Boyle emphasized in his opinion that their remedy would be limited to the recovery of money from the sheriff himself.
The Kentucky Court of Appeals upheld the manner in which the sheriff sold the slaves, but Chief Justice Boyle also suggested that if the sale of the mother alone would have satisfied the debt, then the sheriff should have sold her apart from her son. Like Judge Ruffin, Chief Justice Boyle seemed to applaud the sheriff's humanity in preserving the relationship of Ruth and David when he wrote that “[t]he mother and child were indeed physically divisible, but morally they were not so.” But the chief justice also implied what Judge Ruffin had made explicit: if there were certain evidence that the separate sale of Ruth would have satisfied the balance of the debt, then the sheriff's deviation from the norm of separate sale would not have been justified. Lacking that evidence, though, Chief Justice Boyle and his colleagues refused to penalize the sheriff for selling the young boy with his mother. Of course the exact reasons for the justices' decision may have differed from what Chief Justice Boyle explained in his opinion. For example, the justices may have sought to protect young slave children from separate sale, or they may have wanted to protect a fellow agent of the courts from personal liability.
In 1849, the Kentucky Court of Appeals justices issued an opinion in which they clearly stated the positive duty of those who conducted court sales to sell slaves singly. In Lee v. Fellowes & Co., the justices considered an intricate transaction in which the creditors of a firm sought to undo a sheriff's sale of some land and three slaves whom the sheriff sold together as a group. At the time of the sale, the land and slaves were subject to a mortgage, which complicated things. In his opinion, Judge Graham referred to an 1828 Kentucky statute, which directed that property under execution that was subject to a mortgage should be “sold by execution … in the same manner as such property might have been sold if no such incumbrance had existed.” Judge Graham explained that “[i]f sold absolutely, and not subject to the mortgage, it would not be controverted, that the land, and each slave, should have been separately sold, and a sale in gross, in each case, would be set aside.” Whether or not there was a mortgage, Judge Graham expected that the sheriff would offer and sell the slaves separately. He noted that “[a] sale in gross would be often detrimental to the best interests of the debtor and creditor, and ought not to be countenanced, independently of the statute.” So, even in the absence of the statute of 1828, the Kentucky justices would have mirrored Judge Ruffin's argument that because separate sale of slaves would yield the highest prices, that was how sheriffs and others should conduct court sales.
Few commented on the frequency of slave family disruption at court sales. One exception was Thomas Cobb, who, as noted above, denied the frequency of such disruptions. Another was South Carolina appellate court justice John Belton O'Neall. With regard to the disruption of slave families at court sales, Justice O'Neall proposed thoroughgoing--really radical--reform in order to protect slave family ties in his controversial 1848 pamphlet The Negro Law of South Carolina. Justice O'Neall's digest was supposed to have been a compilation of South Carolina law concerning slavery, but he also included criticisms of existing law and suggestions for reform, which earned him sharp disapproval from the members of the South Carolina Legislature's Committee on the Judiciary. Justice O'Neall complained of the easy alienability of slaves and noted that “[i]n consequence of the slight character which they bear in legal estimation, as compared with real estate, (which has itself, in our State, become of too easy disposition), slaves are subjected to continual change.” He explained that this change occurred because“they are sold and given by their masters without writing; they are sold by administrators and executors, and by the sheriff, (and may even be sold by constables).” As a judge, Justice O'Neall had first-hand experience with the prevalence and results of court sales of slaves. “This continual change of the relations of master and slave, with the consequent rending of family ties among them, has induced me to think,” he explained, “that if by law, they were annexed to the freeholds of their owners, and when sold for partition among distributees, tenants in common, joint tenants and coparceners, they should be sold with the freehold and not otherwise--it might be a wise and wholesome change of the law.”
Unlike Thomas Cobb, Justice O'Neall acknowledged that court sales frequently led to the disruption of slave families. Instead of simply proposing that legislatures preserve filial ties directly by prohibiting court officials from separating family members, as Cobb had suggested, Justice O'Neall suggested a more fundamental change in the nature of South Carolina's slave society: serfdom. Annexing the slaves to the land would preserve slave families and also establish the nexus of specific families to particular land as the basis of agricultural production. Along with this suggestion, Justice O'Neall also offered his hope that “[a] debtor's lands and slaves, instead of being sold, might be sequestered until, like vivum vadium, they would pay all his debts in execution, by the annual profits.” Barring that possibility, Justice O'Neall suggested that a judge or chancellor “might be empowered to order the sale of the plantation and slaves together or separately; the slaves to be sold in families.” Justice O'Neall's suggestion implicitly acknowledged that South Carolina's judges and chancellors lacked the power to order or approve sales in gross, and so his suggestion amounted to a call for the inversion of the default rule of separate sale at court sales.
With regard to this default rule, and more importantly, with regard to the general relationship of law and economy in Southern society, Justice O'Neall was out of step. In his monumental study Southern Slavery and the Law, Thomas Morris has shown that in defining slaves as property “the general trend was toward assuring an early alienability in the market.” The capitalist economy of the slave South was too dynamic for Justice O'Neall, and his call to subordinate the economic interests of whites to the family interests of slaves, along with his other reform suggestions, met with a hostile response. Morris notes that Southern “political economists, such as Louisa McCord and J.D.B. De Bow, leading proponents of a laissez-faire market, expressly rejected the idea that slaves should be attached to the soil or be exempt from sale for payment of debts.”
Although the agents of law who conducted court sales retained the final power to decide whether to sell individually, the default rule of individual sale and the threat of personal liability certainly guided their decisions. Sheriffs knew that they would be personally liable if creditors entitled to sales proceeds could show that the sheriffs' decisions to keep members of a family together resulted in a smaller distribution of money to the creditors. In deciding how to offer slaves for sale, sheriffs may have considered the requests of creditors, debtors, other litigants, and any others who may have been entitled to the proceeds. Sheriffs may have relied on their own sense of humanity and may have also responded to the entreaties of the slaves themselves. However, because the legal duty of sheriffs and other agents of the courts who conducted sales was to maximize the return to those who would share the sale's proceeds, and because, as Judge Ruffin suggested and as I will confirm in Part III below, individual sale of slaves likely would generate higher sales returns, the officials' understanding of their legal obligation impelled them to choose individual sale. Ultimately, though, each agent of law had to decide how to sell. As noted above, South Carolina court officials appear to have sold slaves in the manner that North Carolina's Judge Ruffin directed his state's officials to sell. The sale records indicate that for a majority of the slaves whom they sold, the agents of law chose individual sale.
II. Family Disruption at Commercial and Court Sales
In the preceding section, I presented empirical evidence that individual sales predominated at South Carolina court sales. The South Carolina evidence was similar to data drawn from a group of Missouri slave sales that were mostly probate sales. I also demonstrated that this empirical evidence was consistent with the judicial preference for individual sale at court sales in North Carolina and Kentucky. The South Carolina and Missouri evidence was also consistent with Georgian Howell Cobb's observation that the sale of slaves in families was not the usual practice at sheriffs' sales. Although the legislatures of Alabama, Georgia, and Louisiana protected the relationship between very young children and their mothers--as long as a nonslave with a property interest did not object--the general rule and practice appears to have been the opposite: that slaves should be sold singly rather than as parts of family groups. Judges enforced the practice of single sale by holding those who conducted the sales personally liable if their sales of slaves in groups yielded less money than individual sales would have. For seven of the fifteen slave states--Alabama, Georgia, Kentucky, Louisiana, Missouri, North Carolina, and South Carolina--there is evidence of varying sorts that at court sales the preference was for individual sales of slaves. This is perhaps enough evidence to support the generalization that individual sale was the default rule for court sales of slaves in the antebellum South.
In this Part, I compare court sales of slaves with commercial sales. Specifically, I focus on the risk of family separations. I make a rough comparison of this risk at the two types of sales using as a variable the incidence of individual sale. After comparing the risk of family separations, I will, in Part III, compare the sales proceeds at these two types of sales.
By itself, the insistence of appellate justices that slaves be sold singly at court sales is some evidence that the frequency of individual sale at court sales was greater than at noncourt sales. The existence of such a rule implies, of course, that fewer slaves would be sold individually if no such rule existed. That in turn suggests that the default social or economic selling practice--that is, the manner in which slaves would be sold absent such a rule--included a smaller fraction of individually sold slaves. At best, though, this inferential evidence regarding the relative incidence of individual sales as between court and commercial sales is merely suggestive.
The most obvious sources of data to which one might turn for a less inferential conclusion regarding comparative rates of individual sale at commercial and court sales are bills of sale. These documents are well-known to historians of slavery, particularly economic historians. However, there are enough difficulties with the use of bills of sale that I believe they merit something of a technical discussion in the text of this Article. I would like to suggest that historians should use bills of sale very cautiously.
Bills of sale were documents that a buyer of property--any property, not just slaves--might choose to file with the state after purchase. Although a bill of sale might be recorded for any type of property, in South Carolina, nearly all (96.5%) of the bills filed with the state were for slave sales. The most important reason for a buyer to file a bill of sale was to provide certain evidence of title. A certain record of title benefited a buyer if a question ever arose regarding the ownership of property. In this way, bills of sale were like the systems that states and counties today use to record real estate or automobile sales. The bills-of-sale records were also significant to creditors. Slaves formed the basis of many Southern credit transactions, and a smart creditor would want to be sure that the debtor held recorded title to the slaves against whom the creditor would levy if the debtor defaulted.
One problem with using bills of sale as representations of commercial sale is that the bills include transactions that are not commercial sales. These noncommercial slave transactions included among the bills are of two types. First, the bills include court sales. I excluded those bills of sale that indicated that the seller was acting as an agent of the courts. These court-sale bills amounted to fifteen percent of the total number of bills, which represented twenty-three percent of all the slaves sold. The second group of transactions among the bills that were not exclusively commercial sales were transfers to or by trustees, usually trustees for married women. Many of these transactions were marriage settlements. In all, just over ten percent of all the slave bills of sale were transfers by trustees, with most being trustees for married women. The exclusion of court sales and transfers by trustees leaves seventy-one percent of the total number of slave bills of sale, which included fifty-nine percent or 2642 of the 4492 slaves among the bills that I examined.
I suspect that the noncourt bills of sale are largely for the category of sales that Tadman identifies as local, noncourt sales. Tadman divides slave sales into three types. The first type is interregional sales, which, as noted above, were Tadman's principal interest in Speculators and Slaves. The other broad category of sales that Tadman considers is local sales, divided into two types, court and noncourt sales. In terms of the numbers of such sales, Tadman regards court sales as the most frequent, followed by interregional sales, with local, noncourt sales being the smallest category. For all slave sales, I estimate that court sales comprised fifty percent; local, commercial sales sixteen percent; and interregional sales thirty-four percent. Because an interregional buyer of a South Carolina slave would have almost no incentive and little opportunity to file a bill of sale in the exporting state, the noncourt bills of sale are probably mostly for local, noncourt sales. As most court sales were also local, that is, not interregional sales, this group is most directly comparable to court sales.
Regarding separate sale, I draw my conclusions regarding commercial sale from the subset of bills that were not court sales. As noted above, a majority (fifty-two percent) of slaves sold at South Carolina's court sales experienced individual sale. The bills of sale indicate that at local, commercial sales nineteen percent of slaves were sold individually. Therefore, the risk of family separation due to individual sale appears to have been between two and three times higher at court sales than at commercial sales.
One additional problem concerning the use of bills of sale as representations of commercial sales merits consideration. For court sales, my empirical conclusions are based upon the sale records of the agents of law who actually conducted the sales. These records are the primary records of such sales, that is, the sellers made these records at the time of sale. In this way, the official sale books of the legal officials are analogous to ledgers or account books in which a commercial merchant might record sales. Unlike the officials' sale books, the bills of sale are not the primary records of sales. The bills of sale are instead secondary recordings of completed transactions. For this Article, the principal difficulty that the secondary nature of the bills poses is whether the number of slaves listed on an individual bill of sale reflected the number of slaves sold as part of any one transaction. For example, 495 of the 802 commercial bills that I examined were for individual slaves. Did the recording of bills reflect the conduct of sales? That is, were the bills that listed individual slaves all from sales of individuals, or did some buyers file an individual bill for each slave purchased as part of a group? Another possibility is that when a buyer bargained for and purchased a number of slaves individually, from the same seller, the buyer might file one bill of sale that included all of the slaves. The latter possibility--grouping individually purchased slaves onto one bill of sale--seems more likely than the former, as filing an individual bill for each slave purchased would not offer a buyer any greater security and would only heighten the costs and inconvenience of filing.
The bills themselves do not yield an answer to this query, although comparison with data drawn from the court-sale records provides some clues. Fourteen percent of the bills were for probate sales. The size of the groups included in the bills of sale for probate sales was substantially larger than the average size recorded in primary records of probate sales. For probate sales that were among the bills-of-sale records, the average number of slaves recorded on each bill of sale was 6.5; among the bills that were not for individual sales, the average group size was 9.5. These averages are much larger than the figures derived directly from the probate-sale records: a mean of 1.5 slaves per sale, with 3.4 slaves being the average group size. This greater average size of groups in the bills suggests that probate-sale buyers aggregated individuals or small groups of slaves into larger groups before filing bills of sale--perhaps in order to reduce transaction costs--and/or that buyers of larger groups felt greater need for the security that filing a bill of sale provided.
If the behavior of buyers at noncourt sales were similar to that of probate-sale buyers, then the bills of sale for commercial sales would skew from individual sales toward larger groups. However, since in commercial sales an official record of the sale did not already exist, buyers at these sales had more inducement to file bills of sale than did buyers at court sales. This means that for commercial sales, the bills of sale are probably more representative of the sales transactions themselves than are the bills for court sales. Just how much more representative the bills of commercial sales are one can only guess. There are no extant records with which to resolve this question, so I presume that this nineteen percent incidence of bills of sale with individual slaves reflects corresponding sale percentages. Thus, my use of these data in this way is not conservative with regard to my argument that the incidence of individual sale was higher at court sales than at commercial sales.
The court-sale data approach the patterns of family disruption that Tadman identified for interregional sales. As noted above, when comparing local commercial sales with interregional sales, Tadman has concluded that the local sales “were in general not so systematically oriented toward separation as was the interregional trade.” With regard to the comparison between local commercial sales and court sales, Tadman appears to be mistaken. His evidence is convincing, however, with regard to the comparison between local commercial sales and interregional sales. Tadman has estimated that about one-quarter of the slaves that interregional traders purchased were young slaves between the ages of eight and fourteen who were purchased and resold singly. He has also estimated that family fragments--mothers with children and husbands and wives, with or without children--comprised only about twenty-two percent of the slaves sold interregionally. Although Tadman does not specifically report the figures for individual sale in the interregional trade, this rate is likely as high or higher than at court sales. Thus, in terms of the risk of family disruptions, court sales--the largest overall category of sales--exceeded local commercial sales, but they, in turn, may have been eclipsed by interregional sales.
Court sales of slaves, then, included an incidence of individual sale that was between two and three times higher than for the commercial sales included among the bills of sale. This differential suggests a higher risk of family separation at court sales than at local, commercial sales. Unfortunately, the rather skeletal quality of the bills-of-sale data, not to mention the contested character of the figures for separation risk at commercial sales, makes impossible the derivation of a precise figure for this differential, but it is clear that law's agents conducted one-half of all slave sales and did so in a manner that magnified the risk of family separations.
III. Sales Proceeds of Commercial and Court Sales
The separation of family members at court sales took place for an instrumental reason: to generate greater sales proceeds. As Judge Ruffin emphasized in Cannon v. Jenkins, the duty of those who conducted court sales was to sell for the highest prices they could obtain, and, as Judge Ruffin put it, “Most commonly the articles sell best, singly.” A higher price was the goal of individual sale, and one of the results of individual sale was of course a greater incidence of family separation. There is no evidence that family separations were a conscious goal of those who conducted the sales. However, historians of racism have shown that one element of antebellum Southern racism was the belief that family ties mattered little to slaves. Thomas Cobb, for example, had little regard for the ability of slaves to maintain family ties; his proposal to protect slave marriages from disruption at court sales probably had more to do with abolitionist pressure than his own humanitarian sentiments. In his slave law treatise, Cobb wrote that “[f]idelity to the marriage relation they do not understand and do not expect, neither in their native country nor in a state of bondage.” He had a similarly dim view of slaves' parenting skills. He observed that “unless the child in some way interferes with the comfort or wishes of the parent, the negro has no disposition to control his waywardness or his vices.” Tadman has demonstrated that although slaveholders occasionally professed reluctance to separate families and claimed that they avoided doing so, their actions and ideology worked to the opposite result. He has estimated that the extent of family “separations was such that one out of every five marriages of Upper South slaves would have been prematurely terminated by the [interregional] trade; if other interventions by masters are added the proportion rises to about one in three.” Regarding children, Tadman concludes that “the [interregional] trade would have separated about one in three of the exporting region's slave children (under fourteen years) from their parents.” Tadman estimates that “local sales and other actions by masters would have raised this proportion to about one in two.”
In Part IV of this Article, I will consider how the law worked to insulate court sales from critical scrutiny by making the results seem necessary and unavoidable. But before getting to that matter, I will, in this Part, test the proposition that individual sales generated higher prices than group sales. Then I will compare the proceeds of court sales with commercial sales proceeds.
Like Judge Ruffin and the Kentucky justices who directed court agents to sell slaves singly, some South Carolinians also believed that sellers would realize greater proceeds by selling slaves individually. In 1824, Nathaniel Coggeshall wrote from Darlington District to his wife, who was in Colchester, Connecticut. Coggeshall's long and confusing letter described his financial difficulties. He was both a creditor and a debtor, and as his own creditors pushed him for money, so he prodded his own debtors, but without great success. Coggeshall explained to his wife that he could realize $400 from the sale of some slaves in the town of Marlborough. Coggeshall noted that he “could get that sum for them and not seperate [sic] the Husband from the Wife and Children”; but Coggeshall also indicated that “if I would seperate [sic] them I could get more.” Just why he would get more if he separated the married couple or how much more he would receive, Coggeshall did not explain. But his letter clearly indicated that he understood that individual sale would increase the amount he would receive from the sale.
Two decades later, James Henry Hammond, of Richland District, South Carolina, also understood that the separation of slave family members would yield higher sale prices. Hammond was a fiery and disturbed politician who represented the Palmetto state in the House of Representatives during the 1830s, was governor during the 1840s, and was a United States senator until he resigned his seat following Lincoln's election. In 1846 or 1847, Hammond wrote to a neighbor from whom Hammond hoped to purchase a gang of fifty-nine slaves. Hammond offered $15,000 and explained to his neighbor, “I rated them at about 10 per cent under the negro trader's prices and at 10 per cent less than they would bring I think if sold separately as the trader sells.” Regarding separation, he hastened to add that “this of course you would not think of doing nor would anyone who was not a monster--or a negro trader.” Tadman cautions against taking too seriously Hammond's expression of solicitude for slave families. Hammond's “association of traders with monsters,” Tadman argues, “was no more than an attempt at blackmail for the purpose of gaining a price advantage.” Blackmail is too strong a word, but Tadman has demonstrated that Hammond, despite his protestations about monstrous traders, willingly participated in numerous separations of slave families. Tadman is therefore right to suggest that Hammond was not entirely trustworthy. Hammond, then, offers another example of Southern discourse at odds with practice. He sought to purchase the slaves for a lower price by offering his neighbor the assurance that he would respect family ties if he became the purchaser. He hoped to persuade his neighbor that the solicitude he would show the slaves if he purchased them would make up for the discounted sales price. Whether or not Hammond was lying about his intentions, he and his neighbor, like Coggeshall, understood that separate sale would yield higher prices.
Empirical data regarding slave sale prices that I have drawn from court-sale records in South Carolina support Judge Ruffin's, Chief Justice Boyle's, Coggeshall's, and Hammond's expectations that individual sale of slaves would yield higher prices. Figure 1 presents price data for court sales. This graph presents data for the sale of 1681 slaves between 1823 and 1861 at sheriffs', equity court, and probate sales in four different South Carolina districts, as counties were then called. This figure illustrates an important difference between individual and group sales at court sales. The graph very clearly depicts the difference between average sale prices for slaves sold individually and slaves sold as part of groups. The upper curve, with data points represented by filled triangles, depicts the average annual sale price for slaves sold individually. The lower curve, with filled squares as the data points, presents the average sale price for each slave sold as part of a group of two or more slaves. For each year, the average sale price for individuals is higher than the average price for slaves sold in groups. The curves are distinct, with no overlap between them. Both curves display a general upward trend during the antebellum period. Over the thirty-eight years the graph depicts, the average price for each slave sold as part of a group was 57.8% of the average price for slaves sold individually. That is, when buyers bought slaves in groups, on average they paid 42.2% less for each slave than the average price paid for a slave sold individually.
Figure 1 TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE
Exactly why the average price per slave for those slaves sold in groups was lower than the average price for slaves sold individually is not a simple question to answer. There are some obvious explanations, though. To the extent that the difference in price represents rational behavior by sellers, the slaves sold individually must have possessed traits that made them more valuable to the buyers. That is, the slaves sold were worth more because they were, for example, younger (but not too young), healthier, injury free, skilled, and obedient. As well, nearly two-thirds of those sold as part of a group were family fragments, most often a mother with young children. The young children must have kept the average prices of those sold in groups lower than individual prices. If sold individually, the sale price of these young children would be less than the price of older slaves, and so their presence also helps to account for the lower average price per slave of those sold in groups. Taken together, these factors push the two price curves of Figure 1 closer together. But these factors cannot push the curves all the way together unless the antebellum belief that separate sale of slaves yielded more money was in error. That is, unless the economic impetus behind the requirement of separate sale was mistaken, there must remain some distance between the individual and group sales curves, even after correcting for the different qualities of the slaves sold.
After examining bills-of-sale data for the sales of mothers and their children in New Orleans, economist Laurence Kotlikoff concluded that the average prices of slaves sold as part of a group were lower than individual sale prices. The New Orleans bills-of-sale data were sufficiently rich to allow regression analysis for a variety of factors that may have affected slave prices, and Kotlikoff specifically determined that the prices of mothers sold with children were lower than the aggregate prices of mothers and children sold separately. That is, the separate sale of children apart from their mothers yielded more money than selling the family members together as part of a group. Kotlikoff assumed that lower transaction costs of the group sale resulted in the difference in prices. Although the individual sale prices for a mother and her children might have been higher when they were sold separately, he assumed that the costs of conducting a series of sales rather than just one sale offset the higher prices. The implication is that with individual sale of family members in New Orleans, sellers would not realize greater proceeds as compared with group sale of those same individuals.
There is another way to view Kotlikoff's finding. His analysis demonstrates that buyers were willing to pay more for slave mothers sold individually and to pay more for slave children sold separately from their mothers. Although Kotlikoff attributes the price differential to unspecified transaction costs, the differential may instead be direct evidence of the buyers' preference for slaves without family ties. Put differently, the destruction of a slave mother's family tie to her children made her seem more valuable to a buyer. Like fitness, good temperament, skill, and warranty, the absence of family ties pushed the sale price of slaves upward.
Of course, separate sale could not have made all slaves more valuable. In Lawrence v. Speed, the 1811 case in which plaintiffs contested the sale of the slave mother Ruth together with her two-or three-year-old son David, Kentucky's Chief Justice Boyle explained that “[i]f the child had been sold separately from its mother, it is pretty certain its value would have been greatly diminished …. [I]f the mother had been first sold, it is not improbable that her value might have been lessened in the estimation of purchasers.” Chief Justice Boyle implied that Ruth and David together might have fetched a higher price than they would have separately. This, in today's jargon, is a “human capital” argument. The basic insight is that happier slaves would work more effectively, and that slaves not torn from their families would be happier. The Kentucky chief justice did not actually conclude that their sale together had benefited the estate; he simply refused to overturn the sheriff's decision to sell Ruth and David together in the absence of stronger proof that their separate sale prices would have been higher. The possibility that the slaves' combined sale price might have been higher was a result at odds with Chief Justice Boyle's general view that slaves sold singly yielded higher prices.The solicitude that Chief Justice Boyle showed for very young slave children, like the protection that Alabama's, Georgia's, and Louisiana's statutes sometimes offered to young children, may thus have been consistent with the interests of those who enjoyed the proceeds of sales. The seemingly humane gesture was cost free. Conversely, for older slave children and their mothers, for slave fathers, and for related adults, the protection of slave family ties would have come at a cost to everyone who shared in the sales proceeds.
Because sellers of slaves could achieve higher returns from the sale of slave families by breaking filial ties, higher incidence of individual sale meant greater sales proceeds. Judge Ruffin understood that except for some exceptional cases, individual sale yielded more money at court sales, and this would have been true for any seller of slaves--whether an agent of the courts or a commercial trader. Commercial slave sellers also knew this. In 1835, Ethan Allen Andrews visited Franklin & Armfield, the Alexandria, Virginia slave trading firm that, according to historian Frederic Bancroft, sent “1,000 to 1,200 slaves a year to the Southwest” and operated the “most flourishing slave-pen in the United States.” Armfield's assistant gave Andrews a tour of the slave-pens, where slaves awaited their sale. When Andrews inquired about the separation of slave families, the assistant “assured [Andrews] that they were at great pains to prevent such separation in all cases, in which it was practicable, and to obtain, if possible, whole families.” The assistant described to Andrews a transaction in which Franklin & Armfield “had purchased, from one estate, more than fifty, in order to prevent the separation of family connections; and in selling them, they had been equally scrupulous to have them continue together.” “In this case, however,” Andrews reported, “they had sacrificed not less than one or two thousand dollars, which they might have obtained by separating them, as they would have sold much better in smaller lots.” That is, the firm expected that separate sale would have yielded more money. Tadman, in discussing a conversation Andrews had with Armfield, suggests that the firm exaggerated the extent of the firm's devotion to slave family integrity in order to impress Andrews, although Tadman does note that “[m]aking a major exception for the trader's separation of siblings, there is probably a large measure of truth in what Andrews was told.” Whatever the veracity of the firm's assurances about the preservation of slave families, they did accurately convey to Andrews that the preservation of family ties reduced sales prices and cost the firm money. Put differently, Franklin & Armfield kept prices on the lower curve of Figure 1 by selling slaves in groups.
Nonetheless, Franklin & Armfield forewent greater sales proceeds not because of their dedication to slave families, but because the disruption of slave families would have hurt their firm's reputation. To his surprise, Bancroft found records of slave shipments suggesting that Franklin & Armfield did keep a considerable number of families together, and Bancroft concluded that “these [slave-sale shipment] manifests give unexpected evidence of a substantial basis for the good name that this firm possessed.” Bancroft noted that
[t]heir business was strictly legal, and to establish it firmly and make it highly remunerative, as they had done, they realized that they must conduct it on a plane that would appeal to the farmers and planters from whom they wished to buy, as well as to those whom they desired to sell.
As Tadman put it, the traders understood that “in order to be respectable one should not appear to be too willing to separate families.” So, Franklin & Armfield exchanged the value that they might have realized through greater sales proceeds for greater goodwill with the slaveholders from whom they bought and with the buyers to whom they sold. Their strategy was successful; Armfield alone profited nearly $500,000 in 1834, the year before Andrews visited.
Franklin & Armfield and their traders, like Judge Ruffin in North Carolina, Hammond and Coggeshall in South Carolina, and Chief Justice Boyle in Kentucky, understood that they sacrificed higher sale prices when they preserved family ties. Franklin & Armfield's traders made this sacrifice in order to enhance the goodwill that sellers and buyers of slaves felt toward the firm. Either the dictates of humanity or the desire to appear humane influenced Franklin & Armfield to keep intact some of the slave families that were not disrupted by commercial sale. Even so, Tadman has shown that the extent of slave family disruption was very high in the interregional slave trade, in which Franklin & Armfield were key players. Despite the protestations of respectable Southerners like Franklin & Armfield, the strictures of humanity or pressures toward respectability that kept some parts of families together were weak, though not nonexistent, at some commercial slave sales, particularly at local sales.
At court sales of slaves, the pressures of humanity and respectability were nearly nonexistent. Unlike Franklin & Armfield, the agents of law who conducted court sales operated according to a general rule that they should break, rather than preserve, slave family relationships. Agents of law maximized return by sundering family ties and by selling a majority of slaves singly. Fiduciary duty drove out all considerations other than the maximization of price. Law cleared the path for the economic motives that sentimental or reputational concerns sometimes blocked. The higher proportion of single sales--which was up to three times greater than at commercial sales--coupled with the higher prices available for individual slaves meant that the overall yields at court sales would exceed the comparable return at noncourt, local sales. Court officials, then, not only conducted a majority of slave sales, but also conducted sales in a way that maximized the destruction of slave families. Court sales were devastatingly efficient mechanisms for the liquidation of capital investment in slaves.
IV. Masking Human Agency in Court-Sale Separations
Individual sale predominated as both the rule and the practice at court sales of slaves. By selling more slaves singly than at commercial sales, the agents of law who conducted court sales generated greater returns than commercial sale of the slaves would have. Even as law's agents directed that individual sale be the rule at court sales and even as law's agents made individual sale the practice at court sales, law also assisted in erasing traces of human agency in the disruption of slave families. Law came to serve as a scapegoat--in the Old Testament sense--that made family separations seem both necessary and unavoidable.
In A Key to Uncle Tom's Cabin, Harriet Beecher Stowe included an 1852 letter from Daniel R. Goodloe, in which Goodloe noted and criticized law's role in hiding the human activity behind family disruption at court sales. Stowe's Key was a compendium of evidence that she published to support the verisimilitude of the fictional account of slavery that she offered in Uncle Tom's Cabin. Goodloe was an abolitionist editor and publisher from North Carolina, and in his letter he addressed whether Stowe's novel was a true account of slavery. In his commentary, Goodloe emphasized the disruption of slave families. He noted that “[i]nvidious as the duty may be, I cannot withhold my testimony to the fact that families of slaves are often separated.” He explained that “I have often heard the practice of separating husband and wife, parent and child, defended, apologized for, palliated in a thousand ways, but have never heard it denied.”
Goodloe, who was himself a lawyer--though not a successful one addressed the role of law in these disruptions of slave families. He explained that “[t]he law itself not unfrequently performs the most cruel separations of families, almost without the intervention of individual agency;” this happens, he continued, “in the case of persons who die insolvent, or who become so during lifetime.” Goodloe explained that at these court sales,
[t]he estate, real and personal, must be disposed of at auction to the highest bidder, and the executor, administrator, sheriff, trustee, or other person whose duty it is to dispose of the property, although he may possess the most humane intentions in the world, cannot prevent the final severance of the most endearing ties of kindred.
Goodloe commented more directly on the frequency of these court-supervised disruptions of slave family life. “Pecuniary embarrassment is a most fruitful source of misfortune to the slave as well as the master; and instances of family ties broken from this cause are of daily occurrence,” he explained. Goodloe criticized the laws that allowed such disruptions. He complained that “here is a law common to all the slave-holding states, which upholds and gives countenance to the wrongdoer, while its blackest terrors are reserved for those who would interpose to protect the innocent.” Goodloe raised the issue of Southern discourse regarding family separations and pointed out that “[s]tatesmen of elevated and honorable characters, from a vague notion of state necessity, have defended this law in the abstract, while they would, without hesitation, condemn every instance of its application as unjust.” Goodloe understood that while the law's agents may have had the duty to separate slaves, the existence of that duty was in no way necessary, and he expressed hope that Southerners were beginning to see the inhumanity of family disruptions at court sales. “In one respect I am glad to see it publicly denied that the families of slaves are separated,” he noted, “for while it argues a disreputable want of candor, it at the same time evinces a commendable sense of shame, and induces the hope that the public opinion at the South will not much longer tolerate this most odious, though not essential, part of the system of slavery.”
In his 1860 book, Social Relations in Our Southern States, Alabamian Daniel R. Hundley described a scene in which the duties of law served to justify the separation of slave families in spite of community objection. Hundley's book, which is well-known to historians, identified eight types of Southerners: Southern Gentlemen, the Middle Classes, Southern Yankees, Cotton Snobs, Southern Yeomen, Southern Bullies, Poor White Trash, and the Negro Slaves. Of Southern Yankees, Hundley commented that “[l]ike his Northern brother, the Southern Yankee is deterred by no obstacle whatever from his tireless pursuit of riches.” Hundley further asserted that “the most utterly detestable of all Southern Yankees is the Negro Trader.” The Negro Trader, argued Hundley, was “preëminent in villainy and a greedy love of filthy lucre.”
In Speculators and Slaves, Tadman refers to Hundley's book as “[p]erhaps the classic in the antebellum genre of trader stereotyping.” By characterizing the slave trader as reviled in Southern society, Hundley helped to sustain the myth that Southern slaveholders were reluctant to sell their slaves, a myth that Tadman has destroyed. Tadman observes that the slave trader played an important role in Hundley's defense of slavery. Tadman explains that for Hundley, the trader “turned from being an ideological embarrassment into being the lynch-pin [sic] of slavery's defense--the quintessential scapegoat, devoid of all honor in the South, and toward whom almost any awkward question could rhetorically be turned.” The Scottish traveler James Stirling made the same point in his 1857 book Letters from the Slave States. He observed that “[t]his trade is a sore subject with the defenders of slavery…. They fain would make a scape-goat of the ‘Trader,’ and load all the iniquities of the system on his unlucky back.”
After six pages of scorching prose regarding the Negro Trader, Hundley turned to the commission merchants of Southern cities. Their legitimate business, he said, was “to sell sugar, cotton, tobacco, etc., for the planters of the interior.” Hundley wrote that these merchants “are bold as the boldest in denouncing the common, vulgar, ignorant Negro Trader,” but they “do yet privily advance the funds necessary to enable the latter to carry on his business, and usually take the lion's share of the profits.”
Hundley then offered a perfect example of how, at court sales, the seemingly imperative demands of law could defy community strictures and break up slave families. Hundley's narrative raised the themes that Goodloe described in his letter: separation, shame, community disapproval and acquiescence, and law's palliating influence. He described the Southern commission merchant's attitude toward participation in the sales of slaves. Hundley indicated that the merchants “would as soon be considered guilty of highway robbery as of participating in the vulgar traffic of buying and selling slaves.” He also said, however, that “[s]till they do not scruple to sell a man from his wife, provided they can do so on any plausible pretext, and have reason to believe that they will at the same time make a few pennies more by such heartlessness.” Hundley's commission merchants behaved like James Henry Hammond, who, Tadman has shown, referred to traders who broke up families as monsters though Hammond did so himself.
As an example of the commission merchant's lack of scruples in selling slaves, Hundley discussed one merchant's activity after being appointed as the administrator of a decedent's estate that included a large number of slaves. Just as South Carolina sheriffs took fees in the form of sales commissions, Hundley noted that the administrator took a share of the estate sale proceeds in the form of commissions. At the time, administrators and executors of estates in Alabama could take commissions of up to two and one-half percent on all the money that they received and the same percentage on all they paid out, although probate judges had the power to limit them to a smaller commission. As with commercial sales, then, the higher the sale prices, the more the merchant would receive in commissions. Hundley reported that at the estate sale of slaves, the merchant-administrator directed “the auctioneer to offer the youngest married couples in separate lots, thinking the humanity of the purchasers would lead them to give higher prices for the husband, having previously bought the wife, or for the wife, having previously bought the husband.” The merchant-administrator's tactics were the opposite of Hammond's, who had tried to save himself money by assuring his neighbor that he would keep slave families intact. The merchant hoped to gain a greater commission on the sales by selling the husband and wife singly.
According to Hundley, the crowd viewing the estate sale disapproved of the separation of husbands and wives. Personally, he also strongly disapproved, commenting in his diary that “[i]n order to force them to bring as much money as possible, the cold blooded villain deliberately sold man and wife, parents and children, in separate lots. In view of such outrages,” Hundley fumed, “I do not wonder at the people of the North who are anti-slavery.” In his book, Hundley reported that when the administrator's actions “became known to the crowd, a cry of shame! rose from the lips of many.” He implied that members of the community would not ordinarily tolerate such a separation, writing that “the disgust of every person was so great and so apparent” that the merchant was forced to explain his motives. The merchant turned to the disembodied dictates of law to support his separation of the married couple. “[T]he bloated rich man,” Hundley observed, “was fain at last to get up and publicly state, that he had been influenced to pursue the course he did, from an honorable regard for the interest of the heirs!” So, the administrator shielded himself from criticism by pointing to his fiduciary duties to the heirs, which impelled him to suffer communal displeasure by breaking a marriage bond that under other circumstances-- commercial sale, for example--might remain unbroken even through sale. As a consequence of these legal imperatives, he chose to break the marriage bond in order to release greater capital, to be distributed among the heirs, along with, incidentally, a share to himself as a commission. Of the administrator, Hundley harrumphed, “Wonderfully conscientious fellow, wasn't he?”
For the administrator, then, law served as a scapegoat for the family separations that resulted from the sale that he conducted. Hundley's wonderfully conscientious Southern Yankee commission merchant-administrator relied upon the obligations that law imposed upon him to justify the separate sale of slave husbands and wives. The administrator's duty, of course, was the same duty that lay in the hands of sheriffs, probate officials, equity commissioners, and any other agent of the courts who conducted court sales. Hundley's administrator leaned upon the law to justify separations that he might not otherwise have been able to accomplish in front of the community. Hundley saw through the administrator's declamation and believed that the administrator selfishly invoked legal principles in order to boost his own commissions. Though his actions contravened the desires of the gathered community, the administrator exclaimed that he had no choice. In the separation of slaves from members of their family, the administrator claimed to be merely an agent of law who exercised no personal agency at all. As Goodloe put it, the separation took place “almost without the intervention of individual agency.”
Law served more especially as a scapegoat for the members of the community who gathered to view the sale and stood by as the administrator disrupted families. While the administrator might have faced personal liability if he preserved marriages and the heirs could show that as a consequence sales proceeds were lower, the spectators faced no such risk. They could grumble about the result and cry shame, but ultimately, the administrator's excuse also gave them a way to view the outcome as necessary and unavoidable. Like the administrator, members of the community could deny their own agency in the disruption of slave families by scapegoating law. Even as they participated in the bidding and purchased individual slaves, Southerners could reassure themselves that they had acted honorably, according to the dictates of law and in keeping with the interests of the heirs who would share the proceeds of the sale.
Although Hundley intended his story of the administrator's disruption of slave families as a criticism of a particular type of Southerner--Southern Yankees-- the story also offers a broader vision of how Southerners used law to carry the burden of results that they might otherwise have admitted were pernicious. However, as law carried this burden, those who gathered to watch the sale and those who bid upon and purchased the slaves separated from their families did not have to contemplate their own sins. The original scapegoat--of Leviticus-- is the goat that at God's direction is sent into the wilderness carrying “all the iniquities of the children of Israel, and all their transgressions in all their sins.” In explaining the scapegoat to Moses, God never suggests that the scapegoat ritual is to be a free ride for the sinners. Rather, He requires the children of Israel to practice ritual and sacrifice together, which present an opportunity for reflection, and results in the cleansing of their sins. Similarly, at court sales law served as a scapegoat and efficiently offered cleansing, but law allowed this cleansing without the burden of reflection.
Judges, bidders, buyers, and those who shared the proceeds of sales viewed the disruption of slave families as a necessary consequence of court sales. Family separations were necessary because fiduciary duty required that the seller achieve the highest possible price. Nevertheless, a few persons did notice the extent of family disruptions at court sales and suggest reform. Goodloe pointed out that separations and the laws that allowed them were not necessary. Justice O'Neall's suggestions for statutory reform that would preserve slave families through court sales, along with Thomas Cobb's related proposal, were reminders that the incidents of slavery were mutable because slavery was a creation of positive law. In a republic, laws that bring about pernicious results were subject to change as much then as they are now, and the mere existence of such laws or of other abstract legal duties was an insufficient excuse to account for the inhumane destruction of slaves' families under cover of law.
V. Conclusion
Court sales of slaves were a material--that is, not merely ideological-- manifestation of James Henry Hammond's “mudsill” theory of Southern society. While representing South Carolina in the United States Senate in 1858, Hammond delivered his “Cotton is King” speech. In this speech, Hammond developed the metaphor of slaves as the “mudsill” of South Carolina and Southern society. Hammond attributed the stability of Southern social order to the establishment of slaves as a mudsill. Just as a house must rest upon a sill or ledge in contact with the earth, the edifice of Southern society rested upon the presence of slaves, “a class to do the mean duties, to perform the drudgery of life.”
Historians have analyzed the ideological contours of Hammond's mudsill society. In an essay entitled Masters and Mudsills, George M. Fredrickson, a historian of American racism, focuses on Hammond's mudsill idea. Fredrickson explains that Hammond's theory “stressed dominance rather than paternalism and radical race difference more than the human ties that might develop between masters and slaves.” Fredrickson uses Hammond's theory to criticize Genovese; Fredrickson sees domination and difference where Genovese finds paternalism and reciprocal relationships.
Hammond's mudsill theory operated not only ideologically but also materially, as court sales extracted capital from Hammond's mudsills. Tadman argued that economic self-interest combined with racism yielded disruption of slave families and higher profit for slaveholders, but he has omitted law from this formula. Law supported and justified the results that flowed from economic and racist motives. Whatever the extent of the solicitude that A.E. Keir Nash was able to find in some appellate opinions, on the courthouse steps, court agents conducted sales of slaves in a manner that disregarded filial ties and disrupted substantially more families than local, commercial sales. At commercial sales, profit and commercial goodwill were the seller's goals, but at court sales, reaching the highest price was the sole legitimate aspiration the seller could have. By breaking greater numbers of filial bonds than at commercial sales, court sales yielded greater returns than commercial sales. As South Carolina society's mudsills, slave families released capital on the courthouse steps that satisfied creditors and others entitled to the proceeds from their sale.
Visiting Professor of Law, Jurisprudence and Social Policy Program, University of California, Berkeley School of Law (Boalt Hall) (Spring 1996); Visiting Professor of Law, University of California, Hastings College of the Law (1995-96); Assistant Professor of Law and History, The University of Texas at Austin. B.A., 1983, Northwestern University; M.A., 1986, J.D., 1989, Ph.D., 1993, Stanford University.
