2 - The Law of Sales: Slaves, Animals, and Commodities

Summary

In the village of Sharpsburg, Maryland, scarcely a mile from the site of the 1862 Union victory that served as catalyst for the Emancipation Proclamation, rests a small stone. It is unremarkable save for its inscription: “From 1800 to 1865 This Stone Was Used as a Slave Auction Block. It has been a famous landmark at this original location for over 150 years. ” As these words testify, slave sales were commonplace in the antebellum – and even Civil War – South. Like all commercial transactions, slave sales spawned litigation. Indeed, disputes surrounding the sales of slaves constitute one-sixth of all appellate slave cases. Judges drew on general legal principles, including those concerning the sale of animals, to settle such disputes. Yet the humanness of the property sold – and its value to the Southern economy – complicated the determination of liability and the types of remedies used by judges, as well as the terms of the sale contracts themselves.

In what follows, I first hypothesize as to why the law of slave sales differed from that of other commodities, particularly livestock. I then apply economic analysis to three sets of cases: those in which specific covenants such as warranties gave rise to the dispute; those in which judges determined liability based on parties' representations and knowledge rather than on express stipulations; and those in which people other than owners had sold the slaves. I find that slave sales law developed in a way that minimized the cost and uncertainty of trafficking in human flesh and, thus, strengthened the institution of slavery. I also suggest that, in some cases, divergent legal rules reflected disparate market characteristics.