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.