The Spirit of the Laws and the Cherokee’s Black Slaves
In 1748, Montesquieu devoted a chapter of The Spirit of the Laws to the enslavement of Black people and chose a rather unusual approach: he took the slaveholders’ side.
Or at least pretended to.
“If I had to defend our right to enslave Black people,” he wrote, these would be my reasons.
The first was almost bureaucratic. Europeans had exterminated the peoples of America and therefore had to import people from Africa to cultivate land left without labourers. The phrase “had to” is magnificent: having eliminated one population, there was really no choice but to enslave another.
Then Montesquieu reached the essential reason: without slave labour, sugar would cost too much.
The rest of the chapter essentially makes that sentence presentable.
Since it is difficult to found a Christian civilisation on saving money at dessert, one must demonstrate that plantation workers are not quite human like everyone else. Montesquieu moves through skin colour, nose shape and Africans’ supposed inability to distinguish gold’s value from glass necklaces, reaching the most terrible question: could God have placed a soul—and a good soul at that—in an entirely Black body?
The question, of course, is not Montesquieu’s. It is the European slaveholder’s voice, allowed to speak long enough to become unbearable.
The progression is perfect. First establish that sugar must remain cheap. Then find, in the enslaved person’s body, a reason it is right to pay so little as to pay nothing at all. Finally, ask God to ratify the price list.
Montesquieu then reverses the reasoning. If we admitted that Black people were truly human, he observes, we might begin to suspect that we ourselves were not Christians.
The question of the soul suddenly changes its addressee.
The chapter offers another argument for slavery. If Africans’ treatment were really so unjust, could Europe’s sovereigns, capable of concluding every kind of treaty, truly have failed to conclude even one on their behalf?
The argument remains in excellent health: if it were really that serious, somebody would already have intervened.
Without needing to say so, Montesquieu shows that slavery relied on more than violence. It needed an economy, a theory of humanity, an accommodating religion and, above all, a legal order that made all this perfectly normal.
I suspect few people know that the Cherokee also owned Black slaves.
Nor were they alone: so did other peoples Americans called the “Five Civilized Tribes”—the Choctaw, Chickasaw, Creek and Seminole.
The adjective was meant as praise. These peoples had adopted commercial agriculture, Christianity, private property, Western dress, constitutional government and social structures considered closer to those of white Americans.
In several cases, slaveholding was among the signs of this supposed civilisation.
The Cherokee practised slavery not merely as a social custom. They had a constitution, legislature, courts, sheriffs and laws governing it. In 1861, they expressly recognised ownership of “Black slaves” among the rights protected by their legal order.
Other rules regulated their movements, prohibited weapon possession, barred teaching them to read and punished those helping them escape.
Enslaved people worked in cotton and maize fields, livestock farming, mills, ironworks, saltworks, inns and ferries. They could be bought, sold, inherited, hired out or used to satisfy a debt.
Property law simply had an object somewhat more talkative than the others.
The Cherokee Constitution of 1827 arose, however, in a very different context from the southern US states. Georgia claimed Cherokee land and denied that they constituted a genuine political community. The Cherokee responded by building a capital, adopting a written language, publishing a bilingual newspaper, organising courts and adopting a constitution modelled on the US Constitution.
It was an attempt to survive. If Americans insisted they faced a people without institutions, the Cherokee would display institutions difficult to ignore.
It did not work. Their lands were confiscated anyway, and the population was deported west along what became known as the Trail of Tears, taking their slaves with them.
But that constitution, ineffective against US power, had very concrete effects within the Nation.
Eleven of its twelve signatories were slaveholders.
The constitution therefore defended Cherokee sovereignty while protecting the ruling class’s wealth. It claimed a people’s right not to be governed by Americans while granting some members of that people the right to control every aspect of others’ lives.
There is no need to hunt for a contradiction. Constitutions often proclaim liberty after deciding who may claim it.
This is where law performs its most interesting work.
A slave does not exist in nature. A person does. Law establishes that this person may be sold, inherited, hired out, pledged as security or transferred with an estate’s other assets.
Law does not encounter the slave. It constructs the slave.
To do so, it must decide who may become one, whether the condition passes to children, what powers the owner holds, what movement is permitted, who must capture fugitives and what punishment their helpers deserve.
Contracts, succession rules, registers, judges, sheriffs and militias are required. Slavery is not the product of law’s absence but of its particularly meticulous application.
The enslaved person’s status is also remarkably versatile. A thing when being sold, a person again when being punished. Lacking sufficient will to conclude a contract, yet possessing enough to commit a crime.
Legal personality is supplied as required.
Liberia’s history seems designed to complicate the picture further.
The republic was founded in the nineteenth century through the settlement in Africa of free Black Americans and formerly enslaved people. It was meant to offer somewhere to build a society free from US racism.
The newcomers brought English, Protestant churches, clothing, houses, social manners and an American-style constitution. They also brought the conviction that theirs was a more advanced civilisation than that of the peoples already living there.
Americo-Liberians were a small minority but ruled for over a century. Indigenous populations remained long excluded from effective citizenship and were subjected to forced labour, compulsory recruitment, personal dependency and domestic servitude.
Liberia did not reproduce American plantations’ hereditary slavery exactly. But it retained much of its language: some people brought civilisation; others needed to be administered, educated and put to work.
In the 1920s, allegations of forced recruitment for plantations, including those on Fernando Pó, prompted an international inquiry. It revealed a system in which officials, local chiefs and private interests cooperated with considerable efficiency.
Formerly enslaved Americans had founded a free republic and organised new forms of servitude within it.
This seems paradoxical only if we assume that those subjected to a system necessarily wish to abolish it. Sometimes they merely want a different position within it.
The Cherokee tried to resist the United States by adopting its constitutional form and part of its economic structure. Americo-Liberians tried to escape American society by carrying its institutions, hierarchies and standards of respectability to Africa.
In both cases, liberty was constructed alongside a new distinction between those entitled to it fully and those who would have to wait.
The subject is no longer merely slavery. It is status: how law takes particular characteristics and turns them into legal positions.
Every legal order must classify. It distinguishes citizen and foreign national, adult and minor, free person and prisoner, legally capable and incapable, refugee and economic migrant, EU citizen and third-country national.
Categories are indispensable. Precisely for that reason, they deserve careful scrutiny.
They do not all describe reality in the same way. “Citizen” is an entirely legal condition. “Muslim” or “homosexual” describe characteristics law does not create, but may ignore, protect, reward or persecute. “Foreign national without lawful residence” describes a relationship between a person and administrative rules; “illegal” tends instead to turn that relationship into a definition of the whole person.
Something important happens in that transition: a condition someone is in begins to look like what someone is.
These categories are not equivalent to slavery. That would be historically and legally absurd. But status retains a recognisable structure: select a difference, name it, attach rights, prohibitions and presumptions to that name, and eventually the result appears natural.
We then stop seeing the architecture. We see only the people positioned inside it.
Montesquieu described the whole process in a few lines.
First, sugar had to be kept from becoming too expensive. Then skin colour, nose shape and God’s intentions could be discussed.
As so often, the order of the arguments was the most honest part.
Paolo Fortina · Originally published on LinkedIn on 30 July 2026. Read the original
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