For that some should rule and others be ruled is a thing not only necessary, but expedient; from the hour of their birth, some are marked out for subjection, others for rule. . . . Where then there is such a difference as that between soul and body, or between men and animals (as in the case of those whose business is to use their body, and who can do nothing better), the lower sort are by nature slaves, and it is better for them as for all inferiors that they should be under the rule of a master. For he who can be, and therefore is, another's and he who participates in rational principle enough to apprehend, but not to have, such a principle, is a slave by nature.
Id., at Bk. I, Part V.
It was a simple matter, thousands of years later, to extract from these passages of Aristotle a philosophical and rational basis for both the natural enslavement of Black Africans, and sometimes Indians.
In her study of the religious and philosophical justifications for Black African slavery in the New World, Juliana Beatriz Almeida de Souza described a typical argument drawn from Aristotle. Looking at the work of the 16th century cleric Alonso de Sandoval, she noted that
Sandoval also believed that, as Aristotle noted, the ignorant and lacking in intelligence should due to reason, serve the wise and discrete, so that the latter could govern them and teach them how to live in a virtuous way. This idea when applied to blacks made slavery an effective means for the knowledge of the true faith and an improvement in their living conditions. For who could be “ so blind” as not to realise “ the mercy” of God towards the “ ignorant through slavery”. For Sandoval this blindness consisted in not perceiving that through slavery blacks were led “ to the power of Christian lords” who would give them “ the light of the Gospel, baptising them and keeping them in the Faith” and achieving “ the salvation of their souls”. And if they were free? Would they not “ lose miserably”?
Juliana Beatriz Almeida de Souza, Las Casas, Alonso de Sandoval and the Defense of Black Slavery, 2 TOPOI - Revista de História [on line] (Eoin O’Neill, trans.), available at http://socialsciences.scielo.org/pdf/s_topoi/v2nse/scs_a04.pdf (citing Alonso de Sandoval, De instauranda æthiopum salute. Madrid: Por Alonso de Paredes, 1647. Preface.) Thus, philosophy, when applied through the application of scientific knowledge available at the time, could serve as a rational basis for Black African slavery. And indeed, people drew on both Aristotle and Augustine for the proposition that with respect to uncivilized people, like Black Africans, slavery was ultimately beneficial—a means of bringing them to civilization. See Peter Garnsey, Ideas of Slavery From Aristotle to Augustine 41-43 (Cambridge, UK: Cambridge University Press, 1996).It is clear to see how this idea—focusing on individuals, could also form the basis of an international system that posited a hierarchy of states, with the most civilized states empowered to “enslave” for their own good and proper education, those states less deemed civilized. African colonization, the subjection of the indigenous populations of the Americas, and the colonial projects elsewhere could seek justification in these theories.
De Souza also noted the way in which Sandoval found Scriptural justification. This justification implicated morals but also deepened the notion that slavery was a positive estate for those who were so needy—so dependent on superior peoples.
In the Scriptures Sandoval found an argument to link the black slavery in an unredeemable form to the Word of God, “eternal truth, to reprehend ingratitude, natural evil and the worst customs of the people of Israel, it will raised your feelings and your sins”, comparing them to the “sons of Ethiopia”, then the greatest condemnation used when displeased with someone: Are you not as the Children of the Ethiopians to me, oh children of Israel? (Am 9, 7). Sandoval says that in the ‘divine words’ the words “black and Ethiopian are used often as synonyms of sinner and evil”.
Id. (“Christianisation inscribed in the social fabric and in the bodies of the individuals the basic rules of colonial Christian society. Alongside the conquest of souls, a conquest of bodies took place with a public dimension involving participation in ethics, education, traditions, customs and Christian values107. In the case of blacks their Christianisation would correspond to an adjustment of their social place inscribed by slavery.” Id., at 27).
Many of these ideas, translated from out of its Spanish and Catholic context, made their way to the United States as well. See David Brion Davis, Inhuman Bondage: The Rise and Fall of Slavery in the New World 48-76 (New York: Oxford University Press, 2006). They were reflected in English criticisms as well. See, e.g., John Stuart Mill, The Subjection of Women (1869) in John Stuart Mill, Essays on Equality, Law and Education (Indianapolis, IN: Liberty Fund). In a well known passage Mill argued:
There was a time when the division of mankind into two classes, a small one of masters and a numerous one of slaves, appeared, even to the most cultivated minds, to be a natural, and the only natural, condition of the human race. No less an intellect, and one which contributed no less to the progress of human thought, than Aristotle, held this opinion without doubt or misgiving. . . . But why need I go back to Aristotle? Did not the slaveowners of the Southern United States maintain the same doctrine, with all the fanaticism with which men cling to the theories that justify their passions and legitimate their personal interests? Did they not call heaven and earth to witness that the dominion of the white man over the black is natural, that the black race is by nature incapable of freedom, and marked out for slavery? some even going so far as to say that the freedom of manual labourers is an unnatural order of things anywhere.
Id. And, indeed, it would have been unusual for the master class to believe, as Aristotle suggested, that “where the relation of master and slave between them is natural they are friends and have a common interest, but where it rests merely on law and force the reverse is true.” Aristotle, Politics, Bk I., Part VI. And what could be more natural that the slavery of Black Africans.
It was with this in mind that I read Vernon Valentine Palmer, The Customs of Slavery: The War Without Arms, 48 THE AMERICAN JOURNAL OF LEGAL HISTORY 177 (2006). Looking at the formal and customary law of slavery in Louisiana during the French, Spanish and American administration of the territory, Palmer paints a picture of a group of people who, though formally enslaved, was able to play a decisive role, at least at the margins, in the elaboration of their condition and the development of rules for their emancipation. He shows how, over several centuries in the territory, there was a “continuous dialectical interaction between slave legislation and slave customary law.” Id., at 178. More importantly, he shows how slaves themselves were important actors in the creation, elaboration and vindication of customary slave law, especially when it served their interests. He “suggests that slaves were conscious participants in the creation in the creation and used their awareness of the law to advance their own interests.” Id., at 181. Slaves were particularly protective of the laws of manumission, especially during the period of Spanish control, when manumission was easier to obtain. Palmer notes that three hundred cartas de libertad were issued during ten years of Spanish administration (17769-1779), many times the number issued under French rule. Id., at 186 & n. 35.
Particularly interesting was the description of the ways in which planters, slaves and municipal authorities would sometimes collude to enforce custom over statute. This was particularly the case where it inured to their respective economic interests to do so. Palmer recounts, for example, the food market at Congo Square in New Orleans. There, slaves brought and sold foodstuffs they produced themselves and sold for their own account—the proceeds of which might eventually buy them their freedom. But the Code Noir forbade this activity in Louisiana. Yet slave produce sales were essential to keep New Orleans fed, slave owners were spared the costs of maintaining their slaves by the amounts the slaves used for that purpose and slaves could use the money for their manumission. In such a situation, “the solution was for the authorities simply to do nothing and to say nothing, and ‘assume’ that the slave vendors were selling goods for their masters, and with permission.” Id., at 192 & n. 66 (quoting JERAH JOHNSON, CONGO SQUARE IN NEW ORLEANS 13 (Wilson Publications 1995).
The experience with self-employment on the Sabbath shows that owners and slaves successfully turned the meaning of several provisions of the Code Noir inside out. They not only managed to reverse the rule that forbade work of any kind on Sundays, but owners circumvented the injunction which forbade them from discharging their own duty to provide rations and foodstuffs by giving slaves another day off (other than Sunday) to work for their own account.
Id., at 202. And thus an oddity that Palmer nicely theorizes: “In this way slaves sought a sphere of autonomy within the totalitarian structure imposed upon them. The customs are strivings for some idle ground. They were a kind of retrocession of rights to legally ‘rightless’ individuals.” Id., at 210. He provides a window on the manner in which the master slave relationship was always being negotiated within the confines of a violent struggle between master and slave, on the one hand and owner and the state on the other. Id., citing Orlando Patterson, Slavery and Social Death: A Comparative Study 207 (Cambridge: Harvard University Press, 1982) and Ira Berlin, Many Thousand Gone: The First Two Centuries of Slavery in North America 2 (Cambridge: Harvard University Press 1998).
For Palmer, the lesson is clear—the evolution of the customary law of slave master relations “fits with Lon Fuller’s theory of the origins of legal and moral duties.” Id., at 211. Even within the confines of the master slave relationship their was a measure of reciprocity, of bartering, rather than merely of the application of brute force. Id., at 211-212. But that required the development of a sophisticated legal consciousness among slaves. Slaves had to know and understand their rights—and have some power to seek their enforcement. In what may be the most significant portion of the article, Palmer explores the extent of the legal consciousness of slaves in Louisiana. Id., at 213-218. Palmer gives several examples of the legal sophistication of slaves and the courage they showed in seeking to vindicate their customary rights, even in the face of conflicting statutory provisions. Indeed, especially with respect to the rules regarding manumission, the “speed with which Louisiana slaves grasped the details of even obscure slave laws is also remarkable.” Id., at 217. Palmer leaves the mechanics of slave knowledge unexplored, though he suggests at least some of the informal channels through which knowledge might have been conveyed. “Perhaps the first informants were within the battalion of free black militia men who came with O’Reilly from Cuba.” Id., at 218. In any case, by 1803, almost 1,500 slaves had had their freedom purchased. Id.
For me, the implications are as clear—the notions of black African inferiority was a knowing construct even at the time of its creation in colonial America. Black African slaves could not have been natural slaves even within the regimes of colonial slavery that sought to construct them as such. It is not clear, then, who the academics, moralists, and other theorists of the day were trying to fool by an elaboration of a theory of natural slavery. Perhaps it was enough that a formal theory was constructed, even one without any basis in the realities of the day. Certainly de Souza and Palmer make clear that there was a substantial and conscious disjunction between reality and the academic, moral and legal theories developed to serve as a cover for the elaboration of slave codes grounded in an even more loosely constructed racial hierarchy.
And perhaps that is the real moral. Reality matters less than the ability to cover over it with something plausible. Formally coherent fantasy can have a far greater and long lasting legal effect than the reality that it seeks to cover. Generations of people may look, and understand the disjunction, and not recognize the disjunction for what it is. The only thing that appears natural in the construction of legal orders of human social and political systems, seems to be the ability to construct legal fictions with formidable effect.