The Perquimans event was the spark to one of the greatest legal debates in North Carolina’s history as Quakers directly challenged the state supported institution of slavery and conceptions of property through the use of trusts as a technology of law in conjunction with the exercise of their religious liberty. That is, they used the trust as a way for members of the local Meeting to hold slaves for the "benefit" of the Meeting and thus comply with the requirements of the North Carolina law that slaves have owners. Yet, the trustees, apparently following the wishes of the Meeting, allowed the slaves they "owned" substantial freedom, which in essence circumvented the North Carolina statute’s requirement that the slaves have owners. The Quakers’ challenges to the institution of slavery went beyond their defiance of acts passed by the General Assembly, which specifically contemplated the "Quaker issue." The debate over Quaker slaves held in trusts would largely unfold in the North Carolina courts. The legal theories the Quakers advanced challenged the common law and divided members of the State’s highest court on questions of morality. The Quakers use of trusts and natural law principles to accomplish a moral objective run’s counter to Morton Horwitz’s instrumental conception of law, and proposes an alternative theory, namely that those in power were more motivated by their fears or concern for security and stability.
This paper traces the debate over the legality of Quaker manumission efforts in North Carolina through an examination of three major cases presented before the North Carolina Supreme Court between 1827 and 1851. It combines research in the Quaker archives with an examination of the trial records and the record in the Supreme Court, as well as the published opinions. Thus, this paper moves beyond the previous work that has either looked only at the Quaker records and not the legal records or the North Carolina Supreme Court’s published opinions without telling the full story of the record below. A central question for this paper is how dissenters turned to the neutral technology of law to achieve a result that was at least partially at odds with the established policy of the state? That raises subsidiary questions about the ways that one renowned North Carolina lawyer, William Gaston, sought to defend his use of the innovative strategy and how North Carolina jurists responded to this challenge to state policy. This paper, thus, lies at the intersection of a series of questions about religious freedom, legal innovation, policy, and stare decisis.
Tuesday, August 19, 2014
Thompson on NC Quakers and Manumission
Posted by Dan Ernst
Jessica Lee Thompson, a recent graduate of UNC Chapel Hill School of Law, has posted “Toward Freedom for All”: North Carolina Quaker Legal Theory on the Trust for Manumissions. Here is the abstract: