Anthony C. Infanti, "The Human Toll: Taxation and Slavery in Colonial America" (NYU Press, 2025)
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Hello and welcome to another episode on the New Books Network. I'm one of your hosts, Dr. Miranda Melcher, and I'm very intrigued today by the book that we're going to be discussing, published by NYU Press in 2025, titled The Human Toll, Taxation and Slavery in Colonial America.

The book was written by Anthony Infante, who is with me today, to help us understand how the American colonies used tax law to do a whole bunch of things to uphold the institution of slavery, dehumanizing enslaved persons in terms of how they were taxed, how this was built into systems of control, systems of property and legislatures in a whole bunch of different ways. So as much as this might

sound, maybe, probably not given my introduction just now, like a dry legal thing. Actually, as I think the book and our discussion is going to show, it might look in the archives like a dry legal thing, but with some very, very important implications that are definitely worth discussing. So Tony, thank you so much for joining me on the podcast. Thank you so much for having me.

Could you please start us off by introducing yourself a little bit and tell us why you decided to write this book? Sure. So I'm a law professor at the University of Pittsburgh, and I

I teach tax. I write in the area of tax. Typically, the type of work that I do relates to comparative tax law and what we call critical tax theory. So basically focusing on how the tax system impacts traditionally subordinated groups. So basically along lines of race, gender, sexual orientation, things like that.

And so that's what I usually do. And I write a lot in the area of actually sexual orientation and tax law. But one of my colleagues here at the University of Pittsburgh is a 13th Amendment scholar. And a few years ago, we were talking in the hallway and he said to me, he said, you know, I

I keep doing this research and I see these references to how they use the tax systems in the colonial period to compensate slaveholders for executed enslaved people. Have you ever heard of that? And I looked at him, I said, no, I have never heard of that. That's kind of news to me. I said, but that sounds really interesting.

interesting. I said, I don't have time to look at it right now because actually right then I was finishing up a different book. And so I was finishing up the book. I said, can you please send me those references that you found? So that way I can hang on to them. And as soon as I'm done with this,

I want to take a look into that and see what I can find. And so he did. He sent me the references that he found. I, as soon as I was actually, as soon as I was done with that other book, I started looking and it opened up my eyes completely. I don't usually do work in the historical area. I mean, there's some history to all the tech stuff that we do, but nothing like this. And so it was,

eye-opening not just for the subject matter but also for the type of research that I was doing so that sent me along a path of several years of doing this research and writing this book. I love it when projects come out of something someone mentions and you're like wait hang on a second I need to look into that so I'm so pleased that this book started from that place.

And honestly, even more intrigued then with that introduction to understand why you decided kind of where and when to start the book. So you start the book focusing on South Carolina from the sort of 1670s to the 1730s. And given that

as you've just explained, like, it's not like before this book, you were a scholar of South Carolina in that time period. So why did you choose this place and time to start? Yeah, well, it just happened. I mean, there's kind of a coincidence here. So when I started doing the research, because of the references that I was sent, it was about South Carolina. And so I'd started doing the research first about South Carolina. And that was just

amazing, because South Carolina was the only majority Black colony in the colonial period in mainland America. So of the 13 colonies that later became the United States, it's the only one that was majority Black. And because of that, they were constantly kind of in fear that the Black majority would rise up against them. So they're thinking about ways to control, subjugate the Black

enslaved folks in South Carolina at that point. And so when I started looking, South Carolina used tax in so many different ways, and it was just so fascinating. And so that's where I started the research and then continued going on. But as I was constructing the book,

I realized there was so much to say about South Carolina that South Carolina actually takes up half the book because it was just kind of the apotheosis of using tax in the service of evil back then. And so it was a really nice example of all the different ways and served as a great counterpoint as I then went and looked at the Northern colonies, the middle colonies and the other Southern colonies and

to see how they differed. Because a lot of my past work hasn't been historical, but it's a lot about law and society and how tax law reflects society. And so that's kind of the lens that I look at lots of things through, including this. So seeing how tax law reflected things differently in that early period. I started with that because once I finished my research, it was pretty

clear that, you know, that colonial period in South Carolina fairly neatly broke down into three parts.

With that first part being characterized by a lot of experimentation, they were kind of trying to find their way in figuring out how to kind of use Pax Law to support, promote, and entrench slavery. And then as time went on, you saw things kind of solidify. They finally gravitate towards that approach that they want to take going forward, and then they just refine it through the rest. So that's why I started

where I did. All right, that's definitely helpful to understand. And always really interesting when one sort of discovers that of like, oh, wait a second, something distinct is happening here. And it's in fact, those three stages that I'd love for you to tell us a bit more about. This first one around experimentation certainly seems like they tried a lot of things to you

tax law to create and sustain slavery as a system. So what were some of the things that they tried and why were they even experimenting with tax law as a mechanism in the first place? Well, to take your first question first, there were really three different ways that South Carolina used the tax system to support, promote, and entrench

slavery during the colonial period. One was pretty natural in what you would probably expect if you're a tax person, which is that they mark enslaved people as property using tax law. Because you think about, okay, they have to tax, they need to raise money to run the colony. And if they're taxing property, they were treating enslaved people as property at that time. So it would be pretty natural for them to be treated as property.

And that did occur and they used both annual property taxes and import taxes to mark enslaved people as property. But they did some other things that were very, very interesting. One was kind of circling back to that question that this all started with about using the tax system to compensate slaveholders for executed enslaved persons. And in that early period, they're really kind of plagued

playing around with things is what it turns out. Because in the very beginning, they established the slaveholder compensation schemes very, very early on in the history of the colony because they realized that they needed to basically purchase the cooperation of slaveholders. Because if you think about it, they're creating these really, really draconian slave codes that

oftentimes impose the death penalty as punishment. You know, it's typically either some form of corporal punishment or the death penalty, whether it's the death penalty right away or kind of as escalating punishment. And for slaveholders, and many of the legislators back then were also slaveholders, the legislators, you know, realized, okay, well,

the slaveholders are not going to be willing to cooperate with the administration of the slave codes if what we're going to be doing is destroying their property. We're destroying their revenue-generating property, these enslaved people that they profit from through their forced labor. And so they knew they needed to provide them compensation to get that kind of buy-in because otherwise the fear was and the reality was that they would either continue

conceal the crimes that enslaved people committed so that way they wouldn't be brought to justice, quote unquote, at all, or they would just ship them off the colony and sell them to somebody else outside so that they would rid themselves of the problem, but they would at least hopefully recoup some money, hopefully not make a loss or even make a profit on the sale.

And so, you know, they early on realized that they need to do this. But then, of course, having a compensation scheme doesn't really do anything unless you have money to pay for it, which is where the taxes come from. And then the taxes, you know, kind of send messages about what's going on, just as they do nowadays and how we construct our tax system, decide what, who and how we tax. And so in the very beginning, they just paid for this compensation out of general revenues.

So whatever was in the treasury, that's what they would use to pay. But then as time went by, you know, they, you know, started complaining, you know, that it was costly. So then, you know, they,

kind of impose this as a tax on local slaveholders. So they switched to a scheme where they're saying, okay, when an enslaved person gets executed, the local slaveholders in that area are the only ones that are going to pay the tax to fund the compensation for the other slaveholder. And that really sends a very different message than using general revenues because that's basically forcing slaveholders to internalize this cost.

It's basically treating them, they're the only taxpayers, and, you know, they're having to bear the burden of this tax, which should, you know, simultaneously cause them, you know, to hopefully take steps to, you know, tamp down on the level of crime that's being committed by their enslaved persons because, you know,

With less crime, there's less of these special taxes on them. And also to, you know, kind of have peer pressure on their, you know, neighbors to do the same things. Because if they all, you know, cooperate together, they can eliminate the tax. In essence, it's really in their hands. So it's creating, you know, some...

kind of influence on slaveholder behavior. And then they switch later on to kind of moving it to kind of a broader level, like a regional level, and including, you know, not just slaveholders, but property holders. And then eventually, alongside of that, they start running it through the annual property tax. So you see them kind of playing around with the mechanisms for how they

do this because of everything that was going on at that time period. So there was a lot of experimentation in that before they kind of settled on the approach that they really wanted to take. And then, you know, of course, they're also experimenting in using tax law

to kind of influence the racial balance of the colony. Because as I mentioned before, South Carolina was the only majority Black colony in the colonial period. And it became majority Black very early on. As you mentioned earlier, South Carolina was settled in like 1670. By 1708, it was already majority Black. So very, very early on. So they're always worried about trying to kind of counterbalance the

kind of importation of enslaved Blacks with the importation of white servants. And so sometimes they would do that with import taxes by making them very heavy, especially at times when they were really concerned about what was going on. So in the later 1710s, they were really worried about the growth of the

enslaved population in South Carolina. So they hiked up the import taxes very high. They didn't completely shut off the importation of enslaved Blacks, but they brought it down

significantly to basically just like a trickle. And they did the same thing again in the early 1740s after the Stono Rebellion that happened in 1739. And again, in the latter part of the 1760s. So each time, you know, bringing the tax up to basically prohibitive levels and almost completely drying up the importation of enslaved persons. So they're using tax in that way when they're really worried, they can use tax as a mechanism to kind of turn the spigot

of importation of enslaved persons on and off.

They also, you know, started using tax holidays. So in the property taxes, they would have tax holidays for newly arrived people. And they also eventually, you know, they said, okay, we're getting all this revenue from, you know, this tax on the importation of enslaved Blacks. And we'd like to, you know, counterbalance that by attracting whites to settle here. And so they started dedicating the import tax revenue that they got to

from the importation of enslaved Blacks to pay cash or in-kind bounties to newly arrived whites. So that way they could encourage them to come and help them to settle into a colony. So they're doing lots of different things here. And your second question was about why tax law? Why are they doing this? And part of what the book is about is to show that tax is

not special. In kind of the tax academic area, there's lots of debate about tax exceptionalism and is tax different as an area of law from other areas of the law. And

what I'm trying to show here is that tax is not different. It's used just like so many other areas of the law from criminal law to property law, family law, all different areas of law are kind of participating in kind of creating this slave society in South Carolina and tax law is right there. It's part of it. It's right in the trenches. So it's not special or different. But then even aside from that tax laws always exist.

been and always has been a powerful lever to do things because, well, first off, it involves money. It's, you know, it's sending messages, but it's not just, you know, kind of messages as rhetoric. It's messages that are usually backed up with money. And it involves the government's ability to both take money from people forcibly. I mean, they can force them to part with their money and to redistribute that money and give it to other people. So

So, you know, they're able to kind of use the tax system, you know, as this mechanism of redistribution, which is something that we still do nowadays. And as a way of dangling carrots and sticks in front of people to encourage behavior or discourage behavior, which is, again, the exact same thing we do nowadays. Yeah.

Yeah, no, the familiarity of these mechanisms definitely speaks to kind of how the experimentation led to things that they discovered were so durable. But speaking to your point around

It's embedded tax law in kind of all these other things, right, around politics, around money. What else can we understand about how slavery and race were thought about in South Carolina during this period when we look at tax law? I mean, as you said, you know, the people writing the laws are often also some of the people who are owning other humans. Like they're debating these things. We have their speeches. So what else can we understand about the sort of society side of things when we look at these tax laws?

Yeah, I mean, the way that I view tax is that tax is like a mirror of society. Through the choices that we make about what we tax, who we tax, how we tax, we send messages about who's valued by society, who's validated by society, and about those who are oppressed or marginalized by society. And that's a lot of what my past work has been.

about and the choices that were made in using tax law to support and promote slavery in South Carolina, particularly the gravitation toward using broadly applicable taxes like the annual property tax to redistribute slaveholders' economic losses, demonstrated just how central slavery was to life in colonial South Carolina. That was something that became abundantly clear as I looked at the other colonies.

But because tax law acts as kind of a mirror of society, it also here opens a window onto South Carolina's slave society. It reveals the mindset of legislators, some but not all of whom were slaveholders. And you could see really interesting things about how they would sometimes really push

you to very literal interpretations of the law, to slaveholders' compensation claims, deny the claim, say, no, no, you're not entitled because the law says this, and we've denied you compensation in this situation. But at the same time, they will sometimes act equitably and decide, well, even though compensation technically is not due under the law, in this circumstance, we think

We should provide compensation. And, you know, one of the most interesting ones was after the Stoner Rebellion. So Stoner Rebellion, you know, enslaved Blacks are, you know, rising up against the white slaveholders. You know, there's some people being killed. They kill a lot of enslaved folks at that point.

The legislature completely denies any kind of compensation for the executed enslaved Blacks, like none of those. It's really odd because it's a time when there's a lot of killing of enslaved Blacks, but you're not seeing it reflected in

the tax laws, because you could actually back then, the way that it would work, I should probably mention that, the way that it would work at that point in South Carolina, once they gravitated to using the annual property tax to do this, was that they would basically put out a call and say, okay, all the public creditors, you know, everyone who's owed money by the colony. And so that included the slaveholders who had compensation claims, but also, you know, folks who worked in the military, the people who rented the

you know, chambers for the legislature, you know, all these folks that are doing things for the colony. They, you know, call and say, okay, bring your claims. We're going to vet the claims and then we'll pay the claims.

And so they would get all these claims, review them, vet them. And then once they've got this compiled list of all the claims for the past year that are owed, they would then craft the tax law and they would raise exactly enough money to pay those claims. And then they would, as part of the legislation, authorize the treasurer to pay those claims and raise the money from the colonists through the taxation.

but would not authorize any that money to be spent on anything other than the approved claims. And they would attach the approved claim, a list of the approved claims to the tax legislation. So you'd see right in the tax legislation who was being paid what. And so, you know, at that point you'd, you'd see, okay, all of these different people getting compensated and,

You know, early on, you'd have to really go into the legislative history to tease out who was being compensated for what. Usually later on, they start spelling it out a lot more clearly right on the face of the legislation. But at that time, after the Stoner Rebellion, you're looking at the schedule is what it's called. It's attached to the tax legislation. You're seeing no slaveholder compensation payments, even though there were a bunch of enslaved people who were executed.

But there was a payment that they had in there to compensate a slaveholder for an enslaved person that they freed. The legislature decided to free this enslaved person, not the slaveholder, the legislature, because that enslaved person had helped to put down the rebellion.

So they were, you know, kind of fighting not on the side of the enslaved Blacks, but on the side of the slaveholders. I'm trying to put down the rebellion. And the legislature decided that they wanted to encourage that kind of behavior, although not too much, because there were others that did the same thing that did not get freed. They got gifts from the legislature, but did not get their freedom. This one enslaved person got their freedom. And so then they valued the enslaved person and decided,

you know, pay this slaveholder compensation for that enslaved person who was freed.

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What was interesting is that that, of course, was not authorized under law. Under the law, they had a cap on the amount of compensation that could be paid to any slaveholder. It's 200 pounds. They paid that slaveholder 1,000 pounds for this enslaved person. So a highly inflated, I mean, a really big value is what you're seeing at that point, probably influenced slavery.

by the fact that they're seeing this enslaved person as, you know, positive. You know, they're doing something that they believe in, that they think is correct, and that they want to encourage other people to do. So they're giving this enormous sum to the slaveholder so that they'll get their cooperation in freeing this enslaved person. So you're seeing that, you know, kind of mindset of the legislators and what they're doing and how

how they're channeling what's going on in society at that point. And you also see the mindset of the slaveholders themselves and the importance that they put on being given compensation in order to cooperate with the administration of the slave codes. And there were some people who would seek compensation under circumstances that really weren't covered by the law. Didn't happen too, too often, you see, but it happens at times.

Others were super persistent in making their claims. I mean, there was one person who submitted the same claim like three times before it was finally approved because he was trying to get around a prohibition against compensating slaveholders whose enslaved persons had committed murder. And he was making it. And they sometimes make really, really legalistic arguments, which was fascinating to see as a lawyer. It's fascinating to see them making these really legalistic arguments because the

Statute said no compensation for enslaved persons who commit murder.

But that enslaved person was convicted of homicide, not of murder. And so the slaveholder thought that they should receive compensation. And so they keep pressing and pressing. The legislature kind of makes its own. At one point, the legislature does its own investigation, says, no, we think it was murder because it was a couple of enslaved persons who tied up an overseer and whipped the overseer to death.

And they felt that was murder. And so they weren't going to give compensation. But then it came back again. And he said, well, you know, actually under the slave code, it's the court that gets to decide, the ad hoc slave court that gets to decide what the person's guilty of. The legislature shouldn't be second guessing them. And so the legislature finally says, OK, we looked into it. And yes, we'll go along with what the court said. So you're seeing, you know, the slaveholders and how they're

kind of pushing things. And you also see how despite the way the compensation schemes look, which, you know, they're treating people

enslaved people as property that needs to be compensated for. And they're treating them, in essence, as fungible commodities, if you think about it, because they're basically saying, well, yes, you have this enslaved person whose labor you're profiting from. If I take that person from you and execute them, then if I give you money, that should be fine. You can just go get another enslaved person with the money that I paid you and you'll be okay. But there were places

plenty of slaveholders who would actually try to fight it. They didn't want compensation. They would go and petition for clemency or a pardon from the governor because they didn't want compensation. There was one really interesting instance where a person who's a slaveholder, who's enslaved person had been convicted for participation in an escape plot, petitioned the governor for clemency. And when they petitioned the governor for clemency,

petition actually talks in a way that really acknowledges the humanity of the enslaved person, basically arguing that, well, yeah, the enslaved person tried to escape, but really you can't hold that against them because every human being just naturally wants liberty. They want freedom. And so you can't really hold this against the enslaved person. So they're acknowledging the humanity of the enslaved person. But then at the same time, the argument for

clemency is that this slaveholder was incapacitated. And so the slaveholders families support, like basically their sole support was the forced labor of this enslaved person who was a trained painter and glazier. So not just, you know, a fungible laborer, but somebody who had specialized training and they, they didn't want to see that person with specialized training be executed because they couldn't just replace them with money. Um,

And so, you know, it's really interesting to see, you know, that, you know, perspective of the slaveholders and how they're thinking about things as well. And then kind of rounding it out. So you're seeing the legislators, you're seeing the slaveholders, you're also seeing indirectly the enslaved persons. You know, there was one situation where you can see just how richly

Risky life was just existing as an enslaved person. There was one enslaved person in South Carolina who was just walking a short distance from the plantation where they worked.

And the, you know, you could still see the plantation there and they were killed. Um, they were killed by a party that was out looking for escapees. Um, and so just basically being, you know, black outside of the plantation on their own, you know, put them at risk of being perceived to be an escapee who was then basically at the mercy of, you know, the folks that were looking and could be killed. Um,

And so that's talking about some of the riskiness of life. You can also see how really oppressive life could be as an enslaved person. And there was one case where

one enslaved person murdered another enslaved person. That's really kind of interesting. And the two of them had apparently conspired to escape, but had had a falling out. And they're having an argument and another enslaved person who lived at the plantation where the murder victim was living, heard cries of murder, but that enslaved person was quote unquote, a cripple. That's what it said in the record.

records for the clemency, that that person was a cripple and could not go out himself to check and see what was going on. So he woke up his sister and asked her to go and check. And she, and this is, you know, fascinating, it's giving a window onto what life was like because she had fallen asleep in her clothes, they said, because she had been working so late in the fields. Yeah.

She was just exhausted when she came back and fell asleep. So she went out, she confronts the person who had killed the other enslaved person. And after finding the body and confronting him, he took off. But what's really even more interesting in this story is that the clemency petition doesn't, in that case, come from the slaveholder.

It comes from the ad hoc slave court because they were split in their verdict. Some of them thought that the person should be acquitted. Others thought enough, thought that he should be convicted and hanged. And so the ad hoc slave court makes a petition to the governor asking for clemency. And they explained to the governor in the petition that this enslaved person was actually born to free parents in Havana, Cuba.

And had been a free man who worked at sea before being sold into slavery in South Carolina and they don't explain why or how he got sold into slavery in South Carolina. But nonetheless, even with all of that kind of context that the governor is given no mercy like no mercy at all. And that person gets killed.

hang and then the compensation gets paid. So, you know, tax law here is, you know, really opening up this window. And in South Carolina, it's a really, I think, important way to open the window because as I've mentioned a couple of times, they just had ad hoc slave courts back then. It would be two justices of peace and a few free holders, basically slave holders, property owners nearby who would act as basically judge and jury and court

You know, these things would happen very quickly. There's basically no records that are left from them. So it's not like you can go through court records and look for all of these instances.

But you can use the tax legislation to go back and try to identify folks, which is a lot of what I try to do in that South Carolina section of the book is, you know, kind of excavate that history, try to find names of enslaved people who were executed, try to find the circumstances, you know, surrounding what was happening, you know, doing that kind of excavation.

And clearly it's possible because of just how closely intertwined these tax laws are with the slave codes, which really answers the question I asked you earlier of like, why focus on South Carolina, right? This is why. What happens then when we go to, for example, the New England colonies? Do we also see such a close interaction between the slave codes and the tax legislation? No, not as much. And it's probably to be expected because if you come at things from

You know, the perspective of tax law acting as a mirror of society and, you know, giving us a picture of what this society is like.

or at least how the people were creating the legislation, view their own society and how they'd like to see it viewed. The New England colonies had far fewer enslaved people than South Carolina did, like far, far fewer. They all had enslaved people in the New England colonies, but just not nearly as many. So their slave codes were not nearly as draconian as South Carolina's. Don't

Don't get me wrong. They were draconian. I mean, like they would still, you know, punish people, you know, do things, but they didn't resort to capital punishment in the slave code itself. Not to say that enslaved people were not executed because they were, but they were, you know, subject to the same capital punishment laws that whites were in New England. So, you know, looking at it that way, you know, there's nothing unique about the enslaved folks when it comes to capital punishment that would

And necessitate creating a slaveholder compensation scheme. So there just wasn't any in the New England colony. So you don't see that kind of a tie that you see in South Carolina. So it's really showing you how kind of the centrality of slavery to the society is influencing the ties between tax law and slavery. Right.

Not to say the tax law wasn't related to slavery at all in the New England colonies, because it was. It was just related in different ways. Because as I mentioned, in South Carolina, we see it happening with marking the enslaved people as property, funding these slaveholder compensation schemes, and then also through the import taxation, trying to control the racial balance of the colony. Now, the New England colonies didn't have that slaveholder compensation scheme aspect of things.

But they did have to grapple with how to treat enslaved people for tax purposes. Because, you know, South Carolina had this property tax. That was what it relied on mainly to raise revenue. The core of the property tax was a tax on enslaved people and land. They would also tax other things as well. But the New England colonies had what they called taxes on poles and estates.

So poll tax is the same thing as a head tax or a capitation tax. It's like a per person tax. So for each person, you pay the same amount of money. And property taxes or estate taxes are a kind of property tax. So they taxed people and they taxed property. And so they had to make a choice. Okay, how are we going to treat these enslaved people? They're people, but we classify them as property. In other areas of the law, how are they going to be treated for tax purposes?

And in all the New England colonies, it seems early on enslaved people were treated as people. They were subject to poll tax.

they didn't pay poll tax. The slaveholder would pay the poll tax. So it was kind of like a surrogate property tax in that respect. But nominally, at least, they were treated as people. But in Rhode Island, New Hampshire, Massachusetts, as time went by and they start cobbling together their slave codes, and they had basically piecemeal slave codes. Around the same time they're cobbling together these piecemeal slave codes and

they shift from treating enslaved people as people subject to poll tax and start listing them among the kinds of property that are subject to the tax on estates. So you see that kind of shift in how they're thinking as they're relying more on enslaved people. Connecticut was interesting because Connecticut, there's no record of them ever having shifted enslaved people from the poll tax to the tax on estates.

But, I mean, the interesting kind of quandary is why? You know, like, why didn't they? And there's really no answer that I could find. There was no real explanation. It's, you know, is it just, you know, did they make it?

actual decision to do that? Or was it just inertia that they had been subject to poll tax? And, you know, the poll tax, as I mentioned, acted pretty much like a surrogate property tax because it's not like the enslaved people were ever paying the tax themselves. They didn't have money typically. So, I mean, they're not going to be paying the tax themselves. Their slaveholder is the one that's paying the tax. So it's acting as kind of like a surrogate property tax on the

wealth generating labor power that the slaveholder quote unquote owns so i mean you've seen that kind of a connection well and the comparison is interesting to kind of show how much this was up to the individual states right and how also none of this was sort of inevitable well of course they ended up doing this it's like well actually if they all had legislatures and they all ended up doing kind of somewhat different things then none of these things were really inevitable as options and

If we expand this out further then, what do we see in places like New York or Delaware?

Yeah. So there you see, you know, you're going farther south now. I mean, you're going to the middle colonies. You're seeing more enslaved people than you see in New England. And in fact, I mean, typically the way people talk about it is like, you know, as you go south, you see, you know, more and more enslaved people in the colonies. The one exception was New York had more enslaved people than the other middle colonies, even though it was north of New Jersey and Delaware and Pennsylvania. Yeah.

So you see, you know, more enslaved people and so more concern about control and subjugation. So they have slave codes, all the New England, I'm sorry, all the middle colonies have slave codes and use capital punishment. So they create slaveholder compensation schemes and

Not exactly like the one in South Carolina. That's the thing. There's some variation among the different places about how they construct them, what they'll cover, all of those kinds of things. And they come at different times, which is really interesting. Like Pennsylvania's came a little bit on the late side. But you see petitions, there's actually found petitions where people are complaining like, okay,

We want, you know, can you give us this because, you know, you don't have a compensation scheme like other colonies do. And so they eventually, you know, create a compensation scheme there. But then they have to, again, think about how are they going to fund this compensation scheme. And you see a very different approach from the approach that you see in South Carolina. South Carolina, they're using the property tax.

kind of the generally applicable attacks across the colony. So they're spreading this across everybody because, you know, at a certain point they saw this as providing a public benefit. And South Carolina, I just want to say, they're usually pretty upfront in the pre, they often have long preambles to their legislation back then, and they were not hiding the ball in any respect, right?

They would be very open and honest about what they were trying to do and why they were trying to do it. So there's not really a need to kind of guess or read between the lines because it was just plainly stated. And so they would say, you know, we see this as a public benefit. And so they're spreading the cost broadly across everybody, slaveholders, non-slaveholders.

The middle colonies, you see a very, very different approach. In New York, it starts out with just the local slaveholders are the ones that are going to be paying the tax to fund compensation. They eventually later on move to still a regional scheme, like a county-level scheme, but opening it up to not just slaveholders, but also property holders. In New Jersey, also just local slaveholders. That's it.

Pennsylvania is interesting because it takes a different path.

Pennsylvania chooses to, you know, not use some kind of a special tax like this, but to dedicate that revenue from import taxes on enslaved Blacks to funding compensation schemes, the compensation scheme. So they're, you know, again, kind of cabining it, not seeing it as providing kind of a public benefit, but instead of just spreading it among the slaveholders, they're in essence also including the slave traders as well, who make the slaveholding possible, right?

In Delaware, you're getting closer to the South now. You're seeing a little bit more of a sense of public benefit. Delaware didn't impose taxes kind of across the colony. It's only three counties. Each county would impose taxes. And for the stuff that was considered to be of general benefit, it would be included in the county level tax. And that's where the tax for the slaveholder compensation was. And it was in that county level tax. So not spread across the colony, but kind of at the broadest level that

they were generally using at that time. So, you know, kind of a very different approach, not seeing it as kind of a broad public benefit that would require everyone to share the burden, but seeing it as something that's really benefiting the slaveholders mostly, except Delaware.

Okay, so again, more variation, which is really interesting. I have to admit, though, when I got to this next section of the book, I was kind of expecting there not to be as much variation when we talk about the southern colonies besides South Carolina, because obviously, many of the sort of incentives and concerns in terms of population in terms of how plantation economies work, I would imagine would be kind of quite similar between, I don't know, Georgia and South Carolina.

Georgia and South Carolina. But the answer is not quite that simple, is it? How much variation do we see? Yeah, you see some variation. You see, I mean, like the way that I see that Southern colonies is like kind of spheres of influence, because you mentioned South Carolina and Georgia. South Carolina and Georgia I see as kind of like one sphere, like South Carolina has a sphere of influence that includes

Georgia. And then you have Maryland, Virginia, North Carolina, with Virginia being the center of that sphere of influence. And they take really different approaches. When it comes to slaveholder compensation, they all pretty quickly gravitate to the kind of approach that you see in South Carolina. Not necessarily the same exact way of paying for it, but

the approach of saying this is a broad public benefit and should be shared using you know

a tax mechanism that kind of hits everybody rather than just hitting certain groups of people. So in, you know, Maryland, in, you know, North Carolina, in Virginia, they're using their poll tax to fund the slaveholder compensation schemes. And then you have Georgia, which is using the property tax because it has a system that's broadly similar to South Carolina's in how they tax

tax people. And so you're seeing them, you know, kind of on the same, kind of both on the same page in terms of how they see this and how they're going to fund it and what kind of message they're sending. So, you know, kind of the Southern colonies kind of as a group,

are taking a very different approach from the middle colonies or the northern colonies in you know dealing with this um but when it comes to kind of marking enslaved people as property you're seeing also kind of differences um because they have different kinds of taxes um so you know

You have Virginia, Maryland, North Carolina, all pretty much using poll taxes instead of property taxes. So, you know, you talk about the tax on polls and estates in the north, in the New England colonies, you know, in Maryland, you know, Virginia and North Carolina, they just had a poll tax.

Now, Virginia, it was amazing just to see. I mean, I think people complain about taxes a lot nowadays. They complained a lot about taxes. They were constantly bemoaning the quote-unquote grievous poll tax burden. They didn't really like the poll taxes. They actually liked tapping into the tax on importing enslaved people because they felt that was a more painless means of raising revenue.

But Maryland was really interesting because there's actual statements where they're saying, we think the poll tax is the greatest tax. It's the fairest way for us to, you know,

distribute the cost of funding, you know, all of these public goods that we share, because in, you know, Maryland, almost all of our wealth is in enslaved people and indentured servants. And so the more enslaved people and the more indentured servants somebody has, the more poll tax they're going to pay. So they really saw it as like an effective surrogate property tax on slaveholders.

And so, you know, that's really kind of fascinating to see that and how that works. Where North Carolina was a little different because North Carolina is kind of in a little bit of a liminal space because it's kind of between Virginia and South Carolina. And, you know,

Virginia and Maryland, you know, they have the tobacco plantations, which are set up very differently from kind of the rice plantations in South Carolina and how they're kind of structured. And North Carolina is kind of split in between like the part of North Carolina that's bordering South Carolina is more like South Carolina, more like the region.

rice plantations, heavy concentrations of enslaved people. The part that's closer to Virginia is more of the Virginia tobacco plantation economy. And then the western part of North Carolina did not have that many enslaved people. And so you also see some tensions there. Later in the colonial period, there are some people complaining that they should, in

enact a property tax in North Carolina because the poll tax might work as a good surrogate property tax in the eastern part of the state where there's a lot of enslaved people between the part that's kind of like South Carolina and the part that's like Virginia. But in the western part, where there were plenty of wealthy people, their wealth was not in enslaved people. It was in other things. And so the people were complaining, you want to have a fair distribution of revenue, but

Let's, you know, actually adopt a property tax instead of using the poll tax as a surrogate property tax. So always kind of marking enslaved people as property, but it's just fascinating to see the kind of the different ways that they did it.

Yeah, there's so many different ways that these things are intertwined. And yet, despite the variations, they're all intertwined, right? The tax code is being used in all of these cases, just in different ways, which is really interesting. So thank you for mapping out for us some of the variation. Obviously, the book has way more detail, but that gives us a sense of what we're talking about here.

In these debates then and discussions around kind of what legislatures should do, you've mentioned a few times now sort of some amount of debate within white society around kind of, oh, well, it wouldn't be fair to do it this way or we should move over to this way. Was there any like

Is there resistance to these intertwining of the slave code and tax laws in a way that we might recognize today as being like, hey, maybe we shouldn't be embedding enslavement of other humans into our society? Or does that not show up in these records? No, it does show up somewhat.

You know, so there's one instance in Massachusetts, like early on, right around the time period when it's basically the time period when they're shifting from treating enslaved people as people subject to poll tax and moving them into being property subject to the tax on estates.

And there was somebody who was a member of the Governor's Council and later was the Chief Justice of the Superior Court of Judicature. And he has a diary, this very famous diary. And in the diary is an entry about how he actually tried to stop them from, you know, including enslaved people with property. It was unsuccessful, but, you know, he was resisting. And he's recording in his diary how he was resisting.

I mean, so you're seeing that happening in especially, you know, Pennsylvania, New Jersey, but also to a certain extent in Maryland and even in Rhode Island. Quaker influence as well. I mean, in Pennsylvania in particular, there's a lot of debate about how early on were, you know, were the Quakers involved.

opposing slavery and taking action to oppose slavery. You see some petitions and things like that, but clearly when you get towards the end of the colonial period, it becomes a much bigger thing.

They're, you know, pushing to, you know, kind of especially end the slave trade. And you see that happening through the tax system, which is fascinating. You know, instead of just, you know, camping down on the slave trade by enacting a direct prohibition, which some places did, like some of the New England colonies did that.

You see other places using taxes like Pennsylvania used what was in essence a prohibitive tax. So did New Jersey. They raised their taxes up high enough that it would basically dry up the kind of supply of enslaved people. And Pennsylvania was interesting because the Quakers were pushing and there's a famous Quaker who has...

I found, you know, he has letters that talk about this and stuff where he's kind of disappointed that they're using, you know, the tax code because he liked to see them just enact a direct prohibition, but he's talking about them using the tax code to basically kind of sound out England, you know, that they're enacting a tax that was in essence a prohibition and you, they'd be able to tell by how, you know, the crown reacted to whether they could then maybe go back and say, Hey, we'd like to have just a flat out direct prohibition. Um,

The crown doesn't really cooperate. They just let the law become law without, you know, doing anything. But so you're seeing, you know, that kind of happening, that kind of resistance there. So, yeah, I mean, you see it. It's just not...

I mean, it's harder to find because it's not like nowadays with all sorts of people writing on blogs and on the internet or even letters to the editor in the newspaper. I mean, you're not seeing as much of that, but you're able to see some, yes. Interesting. Always interesting to see kind of what's in the archive and what isn't. So thank you for illuminating that aspect for us.

This is, of course, a book that is, as we've been discussing, pretty heavily embedded. The subtitle says it, right? This is about colonial America. This is not about necessarily where we're at right this second. Our tax laws are doing different things these days. But you do discuss in the book implications of this history for some of our political debates today, for example, around reparations. So maybe we could talk about that as our last discussion topic on the book.

Yes. I mean, I'm coming at this not as a historian, but as a lawyer. And so looking back at legal history, you know, it makes always as a lawyer, you're always thinking about, well, how does this relate to what's happening now? How might this inform what's going on now? And especially with the movement for reparations, you know, I felt that it had kind of a lot to say about what, you know,

how we should be thinking about reparations in ways that, you know, I haven't really seen a lot in the literature because I did do a bunch of reading about reparations in conjunction with doing the book. And, you know, there's not enough, I think, consideration to the kinds of things that you see, you know, these colonial legislators doing, like paying attention to tax design, like where's the money coming from that we're going to be using to, you know, fund reparations.

in the colonial context, slaveholder compensation, but nowadays to fund reparations. How do we do that? Or even having any sensitivity to tax having a role. I mean, there's been some places in the U.S. that have taken some steps to create reparation schemes. I mean, Evanston, Illinois created a reparation scheme that's kind of focused on housing and the housing discrimination that had happened there.

But as a tax lawyer, I'm reading about this reparation scheme there, and some of it makes very little sense to me. I mean, in the beginning, they chose to just do housing vouchers that were time-limited, even though people were asking for monetary compensation because they were claiming that if they ran it as a housing voucher that they could then use to get services or other things, that that would avoid them being taxed on it, which...

quite honestly, is totally not true. That's not how federal income tax works. The basic notions of federal income tax is that the form of a transaction does not matter. What matters is the substance. If in substance you're getting income, it doesn't matter that you run it through three people. You got income. So, I mean, they're doing things that really seem to make no sense from a tax perspective. But then even where they're getting the money from is

says things about what's going on. So they're trying to create a scheme to kind of atone for the discrimination that's happened in the past.

But in the beginning, the scheme is funded in Evanston through a new cannabis tax. So this was right after cannabis was legalized in Illinois. They were expecting to have several dispensaries in the town that they could then use the money from to fund this. Turns out they didn't get nearly as many dispensaries as they expected. You know, they didn't have the money to fund this the way that they thought. And so they ended up having a debate about finding other sources of revenue and finding

What's fascinating about this is, okay, they chose the cannabis tax as the source of funding because they were wanting to, in part, recognize the fact that they had over-policed in the Black community in Evanston, you know, marijuana. And so that was why they chose that, which you can kind of understand at a certain level. But then if you're trying to atone for discrimination that the entire community perpetrated,

Why would you just use this tax that's hitting only a segment of the population to fund that? And then when they go to look for additional sources of revenue, some people suggested, well, what about ARPA funds? So ARPA was the American Rescue Plan Act during COVID. So government money to help with COVID recovery. Why not tap that? And they said, no, no, no, that will basically, you know,

sap all of our, you know, ARPA money that's left and that could have detrimental effects in the community. Oh no. Instead we have this new brand new tax on the transfer of real estate that's worth more than $1.5 million. So basically like a mansion tax. And so we'll use that instead. So again, but you think about what kind of message that sends. Okay. Only a segment of the community. Now we're specifically really saying we don't want to actually have to

sacrifice anything to pay for this because we're not sacrificing anything in terms of using the ARPA funds. We're also not sacrificing any revenue in the sense that this is a brand new tax. So it's not like it was already dedicated to some other use and now you have to shift it over here. It's new money. And so they're seeing, you know, it's, it's,

You know, the idea that money is fungible is something that I've heard people say in response to thinking about this. It's like money is not fungible. You know, tax has an expressive function. It's kind of telling you who should bear the burden of these shared costs of society. And especially when you're creating reparation schemes, it's important to think about that question. Who are we asking to pay for this? Who should be asked to pay for this?

And then kind of even beyond that, you know, we started out this conversation and talked to me about the early, you know, history of South Carolina and just how much experimentation they did and how much the colonial legislatures basically opened up their tax imaginations, trying to think about all the different ways they could construct something. That really sharply contrasts with the

Yeah.

And the Supreme Court's interpretations of that, and they typically have looked to affirmative action cases to do that, especially after the affirmative action case a couple of years ago involving Harvard. The Supreme Court, as it's shifted farther and farther to the right, has really doubled down on a colorblind view of the Constitution, which really ties the hands of reparations proponents in constructing reparation schemes.

And so, you know, I try to juxtapose that with everything you're seeing in this book. You know, that back then when they're constructing things,

slavery. They're constructing, you know, building the foundation of this institution that is, you know, kind of generating these calls for reparations at the end of the day. And it's all flowing from slavery, from the Jim Crow that followed slavery, the discrimination that's continuing after that. It's all got its root in slavery. You know, back when they're creating this, they're building the foundations for it. They're able to unleash their tax imaginations and do all sorts of things.

Where now, when you're trying to make reparations for all of the harm that's been done, they're tying people's hands. And so getting people to start thinking kind of longer term about, well, might it not make sense to, say, take a page from the conservative movement in their efforts to overturn Roe v. Wade and start kind of working to reshape what our Supreme Court looks like?

reshape the Supreme Court to ensure that it's stocked with people who kind of view the Reconstruction Amendments through the lens of Reconstruction, that this is supposed to be helping Blacks. It's supposed to be helping the formerly enslaved folks. And that, I think, is something that the book kind of speaks to directly nowadays. Yeah.

Yeah, definitely makes what could be seen as a purely historical topic very directly relevant. And clearly something as well that you are quite passionate about. So is this something you're going to continue to work on? Or have you, I don't know, come across something seemingly unrelated that now you're going to write a book about the way that this project started? What's next for you? Well, I'm actually working on another book now. And this one is

kind of stems somewhat from the research that I've been doing because the, you know, started with that question. And as I was thinking about what I was going to write, initially I was thinking about like looking at tax and evil kind of more broadly. So not just slavery, but other things as well. But then, you know, talking with my editor, we decided, okay, let's just have a book just about tax and slavery, which,

Worked very well. And there was plenty, plenty to say about that. But one of the other things that had been on my radar screen back then of, you know, things that I could also look at in this kind of tax and evil vein was the use of tax law to exclude Chinese immigrants from the United States, Canada, New Zealand and Australia.

in the latter part of the 1800s, early 1900s. So another historical project, but just a little later on than what I was doing before. So I'm enmeshed in that. Like I've finished all the, pretty much finished all the Canadian part of the research. I'm going to make one last trip to British Columbia in August to kind of

really completely wrap it up. And now I'm kind of enmeshed in the Australian part of things. Um, and then we'll be moving forward. And, and that one has been, again, another fascinating project, seeing all of the different ways, um, that tax law was used to basically oppress Chinese immigrants. Um,

Oh, definitely some interesting archives there, I'm sure. So best of luck with that project. And while you are working on it, of course, listeners can read the book we've been discussing titled The Human Toll, Taxation and Slavery in Colonial America, published by NYU Press in 2025. Tony, thank you so much for joining me on the podcast. Oh, thank you again for having me. I really appreciate it.

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