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.