Each of these four lapidary papers scratches a stylus across fixed categories and settled understandings: embedding the legal history of the Americas in the African history of crime and punishment; uncovering the intellectual history of the metropole in the social history of the colonies; using the restless contingency of biography to trouble the most durable of historiographical boundaries, that between slavery and freedom. Taken together, they dismantle and then suggestively refit the history of slavery and law in the time of revolution and emancipation.

Natalie Zemon Davis's article suggests that the legal history of New World slavery has its roots as much in Africa as in Europe.Footnote ¹ In Africa criminals were often enslaved; the slave trade depended in part upon African justice for its supply. Those sold to European traders carried with them onto the slave ships ideas about justice and what we might anachronistically term “criminal procedure,” Davis suggests. And, focusing on colonial Suriname, Davis outlines the overlapping and competing practices by which enslaved people, maroons, slaveholders, and colonial officials pursued “justice,” sought truth, and kept social order.

Davis begins with the fragmented, incomplete, but nevertheless consequential ways in which African practices of justice-making crossed the Atlantic. By beginning with the African presence among enslaved people in the Americas, Davis dissolves the tautology by which all those actions that slaveholders found perplexing, irritating, or threatening are labeled “resistance to slavery”: by which the reactions of the slaveholders are read backwards as the sole motivations of the enslaved. Davis instead reveals an ethical world among the enslaved with principles and practices orthogonal to slaveholding and European justice. Social norms among the enslaved – proscriptions against lies, insults, theft, and adultery – Davis suggests, were often enforced within the confines of the enslaved community: guilt was divined rather than decided, judgments made by a tribunal or headman rather than a slaveholder or a colonial court.

Davis highlights the contrast between (African and enslaved) ordeals, designed to produce a divination of guilt or innocence, and (European and imperial) torture, intended to establish guilt or innocence by producing a confession. In the first case, the superficial bodily signs of violence were treated as a register of a larger, metaphysical sort of truth-telling: justice was summoned by a force outside the body of the accused. In the second, individual tortured slaves were supposed to be the sole repositories of their own pasts, secrets that had to be tortured out of them. In this contrast, Davis captures both the gulf of difference that separated the ideas that many enslaved people had about the relationship between body, pain, and truth from those of their owners, but also the shared grammar through which they made sense of one another across that gulf. In Davis's paper we can see slaveholding violence and judicial torture as practices that marked the frontier—jagged, perpendicular, and permeable, though it was—between enslaved African and imperial European notions of justice and right.

Violent crimes and violent punishments were impossible to hide from overseers and slaveholders; the murder of one slave by another, for example, or of a white person by a slave, propelled suspected perpetrators into the realm of slaveholding “justice.” Among slaveholders, impunity (whether in fact or simply as a useful fiction) was thought to be necessary to the maintenance of labor discipline and social order among the enslaved. “Although no owner should ever arrogate the power over life and death,” declared the Court of Policy and Criminal Justice in 1762, “it is nonetheless of the utmost importance that slaves should continue to believe that their masters continue to possess that power.” Slaveholding and colonial torture, Davis suggests, can be seen here as (in part) an index of enslaved resistance: as a recognition that enslaved people often would not do what white people wanted them to do except under threat of violent sanction, a theme to which we will return.

Malick Ghachem's engrossing article suggests the process by which enslaved notions of justice and right were worked into the heart of the legal history of European empires.Footnote ² The article focuses on the story of a Haitian slaveholder, Nicolas Lejeune, who was brought to trial by the French colonial authorities for torturing and murdering two of his slaves in 1788. At stake in the prosecution was the question of whether the law of slavery was a feature of colonial or class rule: whether Haitian slaveholders were subject to French imperial rule, or whether slavery represented a form of class “sovereignty beyond law.” The familiar contradictions between the interests of individual slaveholders and the interests of slaveholders as a class represented through “the state,” and between the limitless authority of mastery and the limitations of law are reframed in light of the intellectual history of Atlantic antislavery. As much as the dilemmas of colonial rule, Gachem emphasizes the “prudential,” “pragmatic,” and “strategic” aspects of both French colonial justice and the history of Atlantic antislavery and Enlightenment thought more generally. “Strategic ethics,” according to Gachem, represented an essentially instrumental orientation to the critique of slavery, and one primarily concerned with maintaining the stability or efficacy of slavery rather than asserting its injustice. As the colony's governor put it, the trial of Lejeune provided a “unique opportunity to arrest, by means of a single example, the course of so many cruelties.” The case would be, the governor hoped, an object lesson for slaveholders on the eve of the Haitian Revolution.

Historians are often taught to avoid phrases such as “on the eve of the Haitian Revolution,” phrases that trip lightly off the tongue but carry with them a germ of prolepsis – the error of reading subsequent results backward into the description of earlier events. But what is interesting about Ghachem's article is that almost all of the slaveholders and lawmakers involved seem to have believed that they were living on the eve of the Haitian Revolution. As one of Lejeune's neighbors wrote in trying to discourage the prosecutors from their task, “already the plantations adjacent to Lejeune's are murmuring, and it is possible this event will become the signal of a general revolt.” Or, in the words of Lejeune's father, explaining that the conviction of a single slaveholder might spur a “revolution in the spirit of these men” and that isolated revolts would grow into a general rebellion: “my cause in this case becomes the cause of every colonist.” Psychopathic behavior among slaveholders, the father suggested, was not sociopathic: quite the contrary, it was the substance of colonial sociality. As interesting to think about as Lejeune the elder's formulation of the dialectics of slaveholding impunity and slaveholding class formation – or was he speaking of white racial formation or really of the cause of “every colonist?” – is the way the shadow of slave revolt hung over the legal reasoning of the colonial commonwealth and, ultimately, the strategic ethics of antislavery more generally.

Ghachem situates his article in the era of “Macandalisme” – a widespread fear among slaveholders that their slaves were poisoning them and conspiring in the mountains to attack plantations in the island's northern quarter. The invisibility of the central elements of Macandalisme seems interesting to me in connection with the question of slaveholding anxiety. Even in a legal world where proof was hard to come by in the absence of confession, these were particularly hard crimes to prove: it was not always easy to distinguish those killed by poison from those killed by disease; and, more to the point in relation to slaveholding anxiety, nor was it easy to distinguish those killed by disease from those killed by poison. In a time of terror, every unexplained death could take on the aspect of “Macandalisme.” Situating the administration of colonial justice in a history of enslaved conspiracy and slaveholding fear points to the (often-forgotten) history of the ways in which enslaved people's military action – even in those anticipatory prerevolutionary years – shaped the history of Atlantic antislavery. Slaveholders' daily experience with resistant slaves convinced them that the opposite of slavery was not “freedom,” but war. They imagined their lives were pitched on the edge of what Gachem terms “incipient anarchy.” Put this way, we can see that the strategic strand of Atlantic antislavery emerged not (simply) out of the fears of slaveholders, but out of the resistance of their slaves.

This brings us to the story of the intrepid Adélaïde: the refugee from the war in Haiti at the center of Rebecca J. Scott's article.Footnote ³ Freed by decree in 1793, Adélaïde, along with thousands of others, traveled first to Cuba in 1798, and then to New Orleans in 1809. These shipboard crossings, these “ruptures in legality” as Scott terms them, allowed some people aboard those boats to make slaves of other people. Of the several thousand free citizens of France who had departed the island of Saint-Domingue in 1798, 3,266 arrived in New Orleans in 1809 as slaves. How, Scott asks, could such a thing have happened?

In Scott's telling, Adélaïde's story is, in the first instance, a story about efforts of jurists in Cuba and Louisiana to treat the Haitian Revolution as a non-event in the history of freedom. Even as they confronted thousands of refugees in their ports and fortified their polities against the fearful contagion of French slaves, slaveholders and lawmakers in Cuba and Louisiana refused to recognize the Haitian general emancipation of 1793–1794. Indeed, the judge who eventually (and, Scott argues, redundantly) freed Adélaïde in 1819 constructed his ruling in terms narrow enough to suggest that of all of the Haitians who had made their way to Louisiana in the years after 1793, the Revolution had freed only Adélaïde, and only because it had allowed her to live as if free long enough for any property claim on her person to expire.

At the center of the article is the question of the vexed and permeable boundary between slavery and freedom. In the aftermath of the general emancipation in Haiti, many of those who had been freed nevertheless toiled in conditions that were similar to those that had prevailed when they were enslaved. If slavery might be thought of as a bundle of practical rights daily exercised by one person over another, some of those rights – the right of one person forcibly to command the labor or deference of another, for example – continued to obtain even at the moment that slaves in Haiti became citizens. As they traveled, Scott suggests, people in these gray areas were re-sorted into black and white: slave and free. Scott's focus on the moment at which these margins were defined as legal lines, and on the ways that racialized “property-ness” was given legal shape, suggests that emancipation and re-enslavement might have occurred several times (and taken different shapes, practically and legally) in the case of any given individual. This oscillation seems to me to highlight (at least) three important themes in the legal history of slavery. 1) The way that individual histories shape the legal trajectories from citizen to servant to slave: the social biography of human property-making. 2) The enduring complexity of the category of “slavery,” and of the resulting perplexity of legal efforts to end forced labor, which has taken a variety of social shapes. 3) The long dialectical interchange between the conditions of “slavery” and “freedom:” the way in which the possibility of practical re-enslavement haunts the history of emancipation.

Scott's absorbing article works out the relation between violence, law, and slavery over several scales: from the transnational scale of travel between jurisdictions to the scale of courtrooms and legal precedents all the way down to the intimate, and, Scott suggests, largely determinate scale at which one person asserted a right to enslave another, directly and violently. In making her case, Scott draws our attention to the circularity of the definition of a slave in The Louisiana Digest of 1808: “a slave is one who is in the power of a master.” The law of slavery in this form, one might argue, was a formalization, a euphemization, of violent conquest; of war.

I use the word “war” for several reasons. First, because Scott's story is set in the midst of a war: the Haitian Revolution that both provided the opening through which slaves were made citizens, and catalyzed the fears of the slaveholders in Cuba and Louisiana – the fears of race war – which shaped their response to the refugees in their midst. But, even more, because Scott's account of these passages through legal space suggests new ways of thinking about the history of slavery on a very broad scale.

“Possession is nine-tenths of the law,” the old saying goes, and there is no doubt that the tautologics of property and property holding might be found in many places outside the history of slavery. And it might even be that at the historical origins of the stories of those other sorts of property – at the moment of what Marx called “primitive accumulation” and at many moments afterwards—we might find property constituted in violence and then papered in law. But in the case of slavery, that violence had a particular shape, it was the violence of the property holder against the property itself, “a distinction among persons,” including one established by force, according to the apparent logic of the law of Louisiana.

Scott's conceptual reworking of the idea of the state of war into the heart of the legal codification of slavery seems fascinating and important. Historians once made a strict separation between African slavery, in which slaves were captives of war, from Atlantic slavery, in which slaves were commodities. Whereas many have come to accept the notion that there was commercial slavery in Africa, Scott's reworking of the dialectic of violence and commodification brings the question of war to the center of the discussion of slavery in the Americas. It calls upon us to see slaveholder violence not as emblematic of slavery, but as constitutive of it, and to connect the historiographical discussion of slavery and warfare in Africa to our consideration of the forms that slavery took in the Americas; to think about the legal history of slavery as an aspect of the transformation of war through politics, of force into order.

The relationship between the legal history of slavery and the (violent) constitution of slavery through territorial control is made plain in Martha S. Jones' article about the – what to call them? The perplexity is part of the beauty of Jones' article – the practically enslaved, perhaps legally free people controlled by the widow, Madame Volunbrun.Footnote ⁴ Arriving in New York under circumstances similar to those under which Adélaïde had arrived in New Orleans, the one-time slaves in the Volunbrun household were at the center of a legal dispute that Jones characterizes as a struggle over which boundaries (legal and otherwise) mattered in the post-revolutionary proto-national Atlantic world. Were they, according to the 1793 Emancipation in Saint-Domingue, freed people who were being unjustly held; or were they, according to the laws of the state of New York, enslaved people awaiting the operation of the state's (very) gradual emancipation laws? The lives of the Afro-Haitians held by Madame Volunbrun traced a palimpsest geography: of the African Diaspora, which bound them to the “French Negroes,” who ultimately tried to liberate them by force; of the Enlightenment antislavery activism of the New York Manumission Society; of the laws of the state of New York that defined them as property as long as their owner did not try to move them out of state with the intention of selling them; of the slaveholding capitalism that continually threatened to suck them out from under the supervision of any superintending authority in order to sell them in the slave markets of the lower South.

Jones argues that precedence among these competing definitions of the boundaries of law, property, and humanity was not so much adjudicated by a lawmaking state as productive of the notion of a lawgiving state. Although there was a court case filed in support of Madame Volunbrun's erstwhile slaves, Jones argues that the case was actually fought out in the city's newspapers, and ultimately on the streets. It was, finally, the failure of the attempt to forcibly liberate them and the success of Madame Volunbrun's effort to smuggle them out of state that decided the Afro-Haitians' fate. The laws of the state of New York were not so much dispositive in the Volunbrun case as they were produced in its wake. The struggle (and others like it) over slavery, property, and emancipation, Jones suggests, gave credence to the notion that there was a sovereign entity called the “State of New York” that legally controlled the territory it claimed. The sovereign spaces of the Atlantic World were made palpable and believable in the struggle between slavery and freedom, between one-time slaves and their one-time owners, between Enlightenment principles and capitalist property, between the (stigmatized, denied, and erased) history of Haiti and the (emergent, imperial, and official) history of the United States of America.

In sum, these four terrific articles drill deeply into the legal history of slavery: they search out moments in which slavery was tugged into legal shape, and in which law was disfigured around the practical claims made by the powerful upon those they made slaves. They point the way forward to new and exciting, if dauntingly empirical, vistas in the historiography of the law of slavery.