We seldom think of black slavery as a penal institution. Yet throughout history enslavement has been used as a form of punishment while some penal systems have acquired many of the characteristics of chattel slavery. Punishment served as a legal pretext for selling African slaves to European traders—punishment, to be sure, for trumped-up crimes or for being defeated in supposedly “just” wars. From the fifteenth century onward, European apologists for the slave trade appealed self-righteously to the standards of African justice, arguing that purchasers had no reason to question the local judicial procedures that had condemned certain persons to a lifetime of servitude. Even apart from questions of personal guilt, the dominant tradition of classical and Christian jurisprudence defined slavery as an unfortunate but necessary penalty for original sin. Early abolitionists concentrated their fire on this penal aspect of New World slavery. They questioned the fairness and reliability of African justice, insisted on the innocence of African slaves, and challenged attempts to invoke original sin or the Biblical curse of Canaan as excuses for an arbitrary deprivation of liberty.
From the very outset, however, European apologists had also argued that the Atlantic slave trade performed an essentially therapeutic service by rescuing Africans from an environment of cannibalistic savagery and exposing them to the benefits of wholesome discipline and Christian civilization. Nineteenth-century southerners expanded on this theme, portraying slavery—or “warranteeism,” as Henry Hughes called it—as a benevolent system that served the best interests of blacks as well as whites. Far from being punitive, they said, the institution ensured the surveillance and custodial care of a backward race while gradually rehabilitating and civilizing its members for a more responsible role in human society. Abolitionists, on the other hand, insisted that such rehabilitation was impossible within the institutional walls of a slave system—that “it is liberty alone,” in Gladstone’s later words, “that fits men for liberty.” What both sides shared was an ostensible commitment to benevolence and reform that obscured parallels between slavery and supposedly legitimate forms of punishment.
This homage to redemption and denial of punitive motives pervades David Rothman’s pioneering book, The Discovery of the Asylum, published in 1971, and its sequel, Conscience and Convenience, just published. Although Rothman never discusses American slavery and Reconstruction, it is hardly coincidental that Anglo-American asylums and penitentiaries emerged from the same Quaker-evangelical milieu that gave rise to abolitionism; or that in 1834 the newly reformed British Parliament not only transformed West Indian slaves into “apprentices” but enacted a New Poor Law which required British paupers to be incarcerated in workhouses where the regimentation, surveillance, and separation of families would surpass the “social control” of the most notorious West Indian plantations.
Since Rothman is understandably concerned with the major periods of institutional innovation—the “Jacksonian” period from the 1820s to the 1850s and the “Progressive” period from the 1880s to the Second World War—he has left to other scholars the challenge of relating the failures of slave emancipation …