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Slavery's Legalism: Lawyers and the Commercial Routine of Slavery

Published online by Cambridge University Press:  23 May 2019

Justin Simard
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Extract

Eugenius Aristides Nisbet played a critical role in Georgia's secession from the United States. Elected as a delegate to Georgia's 1861 secession convention, Nisbet introduced a resolution in favor of severing ties with the Union, and he led the committee that drafted his state's secession ordinance. Nisbet was a trained lawyer who had served on the Georgia Supreme Court, and his legal training shaped the way that he viewed secession. He believed that the Constitution did not give states the right to dissolve the Union; instead, this power rested solely in the people, and he framed the resolution and ordinance accordingly. Thanks in part to Nisbet, it was the “people of the State of Georgia” who “repealed, rescinded and abrogated” their ratification of the Constitution in 1788.

Type
Original Article
Information
Law and History Review , Volume 37 , Issue 2 , May 2019 , pp. 571 - 603
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Copyright © the American Society for Legal History, Inc. 2019 

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References

1. After the resolution passed 166–130, Nisbet and seventeen other delegates drafted the Ordinance. Journal of the Public and Secret Proceedings of the Convention of the People of Georgia (Milledgeville, GA: Boughton, Nisbet & Barnes, 1861), 15, 35–39. See also Wooster, Ralph A., The Secession Conventions of the South (Princeton, NJ: Princeton University Press, 1962), 91Google Scholar. For more on the politics surrounding the Georgia secession convention see Freehling, William W., Secessionists Triumphant: 1854–1861 (New York: Oxford University Press, 1990), 450–51Google Scholar.

2. See, for example, Foner, Eric, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the Civil War (Oxford: Oxford University Press, 1995)Google Scholar; Finkelman, Paul, An Imperfect Union: Slavery, Federalism, and Comity (Chapel Hill: University of North Carolina Press, 1981)Google Scholar; Reid, John Philip, “Lessons of Lumpkin: A Review of Recent Literature on Law, Comity, and the Impending Crisis,” William and Mary Law Review 23 (1982): 580–81Google Scholar; Fehrenbacher, Don E., The Dred Scott Case: Its Significance in American Law and Politics (New York: Oxford University Press, 1978)Google Scholar; Finkelman, Paul, ed., Articles on American Slavery: Vol. 6, Fugitive Slaves (New York: Garland Publishing, 1989)Google Scholar; Lubet, Steven, Fugitive Justice: Runaways, Rescuers, and Slavery on Trial (Cambridge, MA: Belknap Press, 2010)Google Scholar; Tomlins, Christopher, Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580–1865 (Cambridge: Cambridge University Press, 2010), 509–69CrossRefGoogle Scholar; Fisher, William W. III, “Ideology and Imagery in the Law of Slavery,” Chicago Kent Law Review 68 (1992): 1051–83Google Scholar; Morris, Thomas D., Southern Slavery and the Law, 1619–1860 (Chapel Hill: University of North Carolina Press, 1996)Google Scholar; and Tushnet, Mark V., The American Law of Slavery, 1810–1860 (Princeton, NJ: Princeton University Press, 1981)Google Scholar.

3. See Lubet, Fugitive Justice; and Finkelman, Paul, Slavery in the Courtroom: An Annotated Bibliography of American Cases (Washington, DC: Library of Congress, 1985), 12–13Google Scholar.

4. Reid, “Lessons of Lumpkin,” 580–81; Tushnet, American Law of Slavery, 18–20; and Brophy, Alfred L., University, Court, and Slave: Pro–Slavery Thought in Southern Colleges and Courts and the Coming of the Civil War (New York: Oxford University Press, 2016), 212–74CrossRefGoogle Scholar.

5. Schweber, Howard H., The Creation of American Common Law, 1850–1860 (Cambridge: Cambridge University Press 2004), 6CrossRefGoogle Scholar. Those judges who did favor development “gained little headway.” Huebner, Timothy S., The Southern Judicial Tradition: State Judges and Sectional Distinctiveness, 1790–1890 (Athens, GA: University of Georgia Press, 1999), 5Google Scholar.

6. Finkelman, Imperfect Union, 126–235; and Reid, “Lessons of Lumpkin,” 580–81.

7. Fehrenbacher, Dred Scott; and Finkelman, Imperfect Union, 236–84.

8. Lubet, Fugitive Justice, 267–73, 294, 314, 325–26; and Finkelman, Imperfect Union, 183.

9. See Tushnet, American Law of Slavery, 229–32; Brandon, Mark E., Free in the World: American Slavery and Constitutional Failure (Princeton, NJ: Princeton University Press, 1998), 167–99Google Scholar; and Brophy, University, xix, 275–95.

10. From this perspective, it was not until after the Civil War that Southern jurists caught up with the legal reformers in the North in developing an American common law.  See Schweber, Creation of American Common Law, 1–13.

11. For background on Nisbet's connections to slavery, see E.A. Nisbet, Diary, October 31, 1869, David M. Rubenstein, Rare Book & Manuscript Library, Durham, North Carolina (hereafter DRML); 1840 United States Census; E.A. Nisbet, Diary, January 11, 1855, DRML; 1860 United States Census, Slave Schedule Bibb County; and E.A. Nisbet, Diary, November 28, 1869, DRML. Nisbet's original diary is not in his paper collection at the DRML. The following excerpts are from a handwritten copy.

12. Students may have supplemented these practical exercises with instruction from judges and attendance at lectures. Brand, Paul, “Legal Education Before the Inns of Court,” in Teaching and Transmission of Law in England 1150–1900, ed. Bush, Jonathan A. and Wijffels, Alain (New York: Hambledon Press, 1999), 51–84Google Scholar, 62–68.

13. Clerks complained that lawyers rarely offered direct instruction and that when they did, their lessons were often lackluster. Consumed by their monotonous work of copying documents, apprentices often had little time to read, and they were expected to learn from a limited number of notoriously difficult treatises. McKirdy, Charles R., “The Lawyer as Apprentice: Legal Education in Eighteenth Century Massachusetts,” Journal of Legal Education 28 (1976): 127–28Google Scholar; Hamlin, Paul M., Legal Education in Colonial New York (New York: New York University Law Quarterly Review, 1939), 42, 130–33Google Scholar; Dargo, George, Law in the New Republic: Private Law and the Public Estate (New York: Knopf, 1983), 51Google Scholar; Langbein, John, “Blackstone, Litchfield, and Yale: The Founding of the Yale Law School in History of the Yale Law School,” in History of the Yale Law School: The Tercentennial Lectures, ed. Kronman, Anthony T. (New Haven, CT: Yale University Press, 2004), 24Google Scholar. Despite these limitations, apprenticeship was the dominant form of legal education until the twentieth century. See Kalman, Laura, “Professing Law: Elite Law School Professors in the Twentieth Century” in Looking Back at Law's Century, ed. Sarat, Austin, Garth, Bryant, and Kagan, Robert A. (Ithaca, NY: Cornell University Press, 2002), 340–42Google Scholar. Stevens, Robert, Law School: Legal Education in America from the 1850s to the 1980s (Chapel Hill: University of North Carolina Press, 1983), 95–96Google Scholar. For the failure of school-based education, see Klafter, Craig Evan, “The Influence of Vocational Law Schools on the Origins of American Legal Thought, 1779–1829,” American Journal of Legal History 37 (1993): 322CrossRefGoogle Scholar. Ewald, William III, “James Wilson and the Drafting of the Constitution,” Pennsylvania Journal of Constitutional Law 10 (2008): 914Google Scholar; Klafter, Craig Evan, Reason over Precedents: Origins of American Legal Thought (Westport, CT: Greenwood Press, 1993), 10Google Scholar.

14. The school's graduates made up nearly 5% of the lawyers in the United States. Rough estimates suggest that there were between 22,000 and 24,000 lawyers in the United States in 1850. Friedman, Lawrence, A History of American Law, 3rd ed. (New York: Simon and Schuster, 2005), 483Google Scholar; Stevens, Law School, 22. Between 1794 and 1833, approximately 1,000 lawyers attended Litchfield. Even though some of these Litchfield alumni had died or left legal practice by the 1850s, they still made up a significant portion of the bar. My calculations (comparing contemporary law schools over a similar period of time) suggest that Litchfield accounted for the same proportion of the legal profession as the combined graduates of Yale, Harvard, Stanford, the University of Chicago, and the University of Pennsylvania do today.

15. Elmore, Anna D., “Introduction,” in Martin, William Dickinson, Journal: A Journey from South Carolina in the Year 1809, ed. Elmore, Anna D. (Charlotte, NC: Heritage House, 1959)Google Scholar, ii, vii, 10, 41, 42.

16. Freehling, William W., The Road to Disunion: Secessionists at Bay, 1776–1854 (New York: Oxford University Press, 1990), 136Google Scholar. The reopening of the overseas slave trade was enabled by the constitutional provision that prevented Congress from barring the slave trade until 1807. South Carolina reopened the trade between 1803 and 1807; ibid., 136.

17. Bidwell, Percy Wells, “Rural Economy in New England at the Beginning of the Nineteenth Century,” Transactions of the Connecticut Academy of Arts and Sciences 20 (1916): 270–71Google Scholar; and Martin, Journal, 27. Historical Statistics of the United States: Millennial Edition Online: Table Bb1–98; E.A. Nisbet, Diary, November 28, 1869, DRML. As Al Brophy has pointed out, Southern support for slavery was less uniform in the early nineteenth century than it would be later. Brophy, University, 50.

18. Gould, a former Litchfield student, began teaching alongside Reeve in 1798. In 1820, he took over management of the school, and he continued to teach after Reeve died. Siegel, Andrew M., “‘To Learn and Make Respectable Hereafter’: The Litchfield Law School in Cultural Context,” New York University Law Review 73 (1998): 2003Google Scholar.

19. Blackstone, Sir William, Commentaries on the Laws of England: In Four Books with an Analysis of the Work, vol. 1, ed. Lee, Thomas (London: S. Sweet, 1829)Google Scholar (originally published without an editor in 1765 by Clarendon Press in Oxford), 423. Blackstone argued that slavery could be grounded in neither the law of war nor the law of contract: not in the law of war because there was no right to slaughter and, therefore, no right to enslave as an alternative; not in the law of contract, because a slave received no consideration for bargaining away his freedom. Reeve's views on slavery are discussed in Pearson, Ellen Holmes, Remaking Custom: Law and Identity in the Early American Republic (Charlottesville: University of Virginia Press, 2011)Google Scholar. Reeve's opposition to slavery was not just academic. Before he began teaching apprentices, he worked alongside fellow attorney Theodore Sedgwick to win the freedom of a man and woman in Massachusetts by arguing that slavery was illegal under the equal rights provision of the recently ratified 1780 Massachusetts Constitution. The case, Bett v. Ashley, took place in 1781. The jury concluded that the couple “[were] not and [had not been] at the time of the purchase of the original writ the legal Negro servants of their former master” and awarded them “thirty shillings lawful silver Money, Damages, and the Costs of this suit Paned at five pound fourteen shillings and four pence like Money.” Jury Verdict, Bett v. Ashley (1781). The defendant appealed, but after the Massachusetts Supreme Judicial Court declined to hear another case attacking slavery on similar grounds, he confessed judgment. For more on the case, see Zilversmit, Arthur, “Quok Walker, Mumbet, and the Abolition of Slavery in Massachusetts,” William and Mary Quarterly 25 (1968): 614–24CrossRefGoogle Scholar. Reeve's co-counsel, Theodore Sedgwick, would later represent Massachusetts in Congress and serve on the Massachusetts Supreme Judicial Court. Welch, Richard E., Theodore Sedgwick, Federalist: A Political Portrait (Middletown, CT: Wesleyan University Press, 1965)Google Scholar.

20. Lord Mansfield reached the same conclusion in Somerset v. Stewart, 98 ER 499 (1772).

21. See Pearson, Remaking Custom, 119–21. James Gould also criticized slavery because it violated the right of contract.

22. The Litchfield Law School did not convey degrees, and there is no official list of students who attended its entire set of lectures. For the sake of simplicity, I will refer to students who attended Litchfield as “graduates.” Most Southern graduates returned to the South after their educations; a small number of Northern students also established careers in the South. Custer, Lawrence B., “The Litchfield Law School: Educating Southern Lawyers in Connecticut,” Georgia Journal of Southern Legal History 2 (1993): 202–3Google Scholar.

23. According to Calhoun, slavery was “a positive good,” and its regulation outside of Congress's jurisdiction. See Calhoun, John C., “Speech on the Reception of Abolition Petitions,” February 6, 1837 in Speeches of John C. Calhoun: Delivered in the Congress of the United States from 1811 to the Present Time (New York: Harper & Brothers, 1843), 222–26Google Scholar.

24. John C. Calhoun to Tapping Reeve, February 10, 1810, Tapping Reeve Collection, Helga J. Ingram Memorial Research Library, Litchfield Historical Society, Litchfield, CT (hereafter LHS); John Y. Mason to Edmunds Mason, January 28, 1818, reprinted in Williams, Francis Leigh, “The Heritage and Preparation of a Statesman, John Young Mason, 1799–1859,” Virginia Magazine of History and Biography 75 (1967): 322Google Scholar; and Nicholas Ware et al. to W. Sanford et al., May 4, 1822, LHS.

25. Custer, “Litchfield Law School,” 195–96; see “Sketch of the Life of E.A. Nisbet,” Macon Weekly Telegraph, April 4, 1871, 6; and Boonshoft, Mark, “The Litchfield Network: Education, Social Capital, and the Rise and Fall of a Political Dynasty, 1784–1833,” Journal of the Early Republic 34 (2014): 570CrossRefGoogle Scholar.

26. Litchfield's students from outside the South held a range of views on the subject. Some, such as Roger Sherman Baldwin who attended Litchfield in 1812, worked against the institution. Baldwin, a future senator and governor of Connecticut, defended the African captives who had rebelled on the Spanish ship La Amistad, eventually winning his clients’ freedom after arguing alongside former president John Quincy Adams at the United States Supreme Court in 1841. United States v. Libellants and Claimants of the Schooner Amistad, 40 U.S. 518 (1841). Others such as Marcus Morton who attended Litchfield in 1806 and would become the governor of Massachusetts, had a complicated relationship with the politics of slavery. He was characterized by political opponents both as an abolitionist and a defender of the institution but fell somewhere in between. See Earle, Jonathan H., Jacksonian Antislavery and the Politics of Free Soil, 1824–185 (Chapel Hill: University of North Carolina Press, 2004), 113–14Google Scholar; and Earle, Jonathan, “Marcus Morton and the Dilemma of Jacksonian Antislavery in Massachusetts, 1817–1849,” Massachusetts Review 4 (2002): 61–88Google Scholar.

27. Samuel Cheever's two volumes of notes from 1812, for example, contain less than two and a half pages of notes related to the fundamental law of slavery. Samuel Cheever, Notes on Lectures of Reeve and Gould (1812), http://nrs.harvard.edu/urn-3:HLS.Libr:8253506 and http://nrs.harvard.edu/urn-3:HLS.Libr:8254042 (accessed April 30, 2019). In contrast, Reeve and Gould lectured extensively on bills of exchange, promissory notes, usury, notice and demand (for overdue payment), and action of account (used to recover money). They also taught students how to navigate the rules of exchange related to personal property and real estate. Students recorded these lessons under headings such as mortgages, real property, alienation by deed, ejectment (used to evict a tenant), disseisin (used to recover land), and real actions (used for suits related to property). See Asa Bacon, Student Notebooks, 1794, LHS; Ebenezer Baldwin, Student Notebooks, 1810, LHS; William S. Andrews, Lectures Upon the Various Branches of Law by Reeves and Gould at the Law School in Litchfield, Conn, 1812–1813, vol. 2, Harvard Law School Library, Cambridge, MA (hereafter HLS); Notes of Reeve's Lectures on Various Legal Subjects in the Litchfield Law School, 1808, vol. 2, HLS; Nash Lonson; Lectures on Various Legal Subjects Delivered in the Litchfield Law School, 1803, vol. 1, HLS; Henry Holton Fuller, Lectures of Tapping Reeve, Litchfield Law School, 1812–13, vol. 1, HLS; and Caleb Stark, Lectures of James Gould, Litchfield Law School, 1824–25. vol. 3, HLS.

28. Andrew Siegel and Angela Fernandez have both argued that Reeve's school was strongly influenced by Federalist political ideals and point out some areas in which Reeve's lessons reflected his political aims rather than well-established precedent. Fernandez provides a particularly compelling example of this in her analysis of Reeve's treatment of the rights of married women. See Siegal, “‘To Learn and Make Respectable Hereafter,’” 1978–2028; Angela Fernandez, “Spreading the Word: From the Litchfield Law School to the Harvard Case Method” (JSD diss., Yale Law School, 2007); and Fernandez, Angela, “Tapping Reeve, Coverture and America's First Legal Treatise,” in Law Books in Action: Essays on the Anglo-American Legal Treatise, ed. Fernandez, Angela and Dubber, Markus D. (Portland, OR: Hart Publishing, 2012)Google Scholar. Both Siegal and Fernandez also acknowledge, however, the technical legal content of much of the Litchfield curriculum. The technical focus of the lectures at Litchfield is particularly evident when they are contrasted with other law school lectures at the time.

29. Despite strikingly different approaches, Morton Horwitz, William Nelson, Bruce Mann, Dan Hulsebosch, and Laura Edwards have all written of the dynamic relationship between lawyers and commerce. See Morton J. Horwitz, The Transformation of American Law, 1780–1860; Nelson, William E., Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830 (Cambridge, MA: Harvard University Press, 1975)Google Scholar; Mann, Bruce, Neighbors and Strangers: Law and Community in Early Connecticut (Chapel Hill: University of North Carolina, 1987)Google Scholar, especially 6 for his discussion of the frequency of debt-related litigation; Hulsebosch, Daniel J., Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830 (Chapel Hill: University of North Carolina Press, 2005)Google Scholar; and Edwards, Laura, The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill: University of North Carolina Press, 2009)Google Scholar.

30. Wilson offered a statement of this position in the introduction to his law lectures. Law, he explained, was “something higher than a mere instrument of private gain,” and a complete legal education demanded that students master both “metaphysical” and “historical knowledge,” “pry into the secret recesses of the human heart, and become well acquainted with the whole moral world, that they discover the abstract reason of all laws.” Wilson, James, “Lectures on Law” in Collected Works of James Wilson, vol. 1, ed. Hall, Kermit L. and Hall, Mark David (Indianapolis, IN: Liberty Fund, 2007), 457–58Google Scholar. Kent, similarly spoke of the “singular” obligation” Americans had “to place the Study of the law at least on a level with the pursuits of Classical Learning” as a means of “preserv[ing] [the] Fruits of … Independence.” James Kent, “An Introductory Lecture to a Course of Law Lectures” (1794) in American Political Writings During the Founding Era, vol. 1, ed. Charles S. Hyneman and Donald S. Lutz (Indianapolis, IN: Liberty Fund, 1983), 937–38, 949. Wythe also wrote of the importance of legal education in “form[ing] such characters as may be fit to succeed those which have been ornamental and useful in the national councils of America.” George Wythe to John Adams, December 5, 1783, quoted in Alonzo Thomas Dill, George Wythe: Teacher of Liberty (Williamsburg, VA: Virginia Independence Bicentennial Commission, 1979), 2.

31. Wythe, Wilson, and Kent's schools had brief, regionalized runs of success, but none lasted as long or trained nearly as many students as Reeve and Gould. George Wythe and his successor, St. George Tucker, educated fewer than 100 students in 23 years. Klafter, “Influence of Vocational Law Schools,” 322. Wilson and Kent trained even fewer students. Kent's enrollment decreased from forty-three in his first year to merely two in his second. He resigned his chair in the spring of 1797, 4 years after he had begun. Klafter, Reason over Precedents, 10. Wilson discontinued his lectures after finishing only half of his initial course. Ewald, “James Wilson,” 914. On the power of a legal career to create wealth, see Friedman, History of American Law, 227–28; Chroust, Anton, “Dilemma of the American Lawyer in the Post-Revolutionary Era,” Notre Dame Law Review 35 (1959): 48–50Google Scholar; Main, Jackson Turner, The Social Structure of Revolutionary America (Princeton, NJ: Princeton University Press), 190–92Google Scholar; Martin, Journal, 4; and John Lloyd Stephens to Benjamin Stephens, quoted in von Hagen, Victor W., “Introduction,” in Stephens, John Lloyd, Incidents of Travel in Egypt, Arabia Petraea, and the Holy Land, ed. von Hagen, Victor W. (Norman: Oklahoma University Press, 1970), xivGoogle Scholar.

32. See Unknown, Student Notes, LHS, citing sources in margins; George Gould, Student Notes, LHS. Bryson, W. Hamilton, “The History of Legal Publishing in Virginia,” University of Richmond Law Review 14 (1979): 161Google Scholar, 176; Hunter, Thomas, “The Institutionalization of Legal Education in North Carolina, 1790–1920,” in The History of Legal Education in the United States, vol. 1, ed. Sheppard, Steve (Hackensack, NJ: Salem Press, 1999), 408Google Scholar; Hoeflich, Michael H., Legal Publishing in Antebellum America (New York: Cambridge University Press, 2010), 179CrossRefGoogle Scholar; Surrency, Erwin C., A History of American Law Publishing (New York: Oceana Publications, 1990), 29Google Scholar; and Hulsebosch, Daniel J., “Empire of Law: Chancellor Kent and the Revolution in Books in the Early Republic,” Alabama Law Review 60 (2003): 377–78Google Scholar. Apprentice reading lists also contained recommendations for philosophical and historical texts, but such texts do not seem to have hindered the transmission of a technical legal culture.

33. Reeve published The Law of Baron and Femme in 1816 and Gould published A Treatise on the Principles of Pleading in Civil Actions in 1832. Reeve, Tapping, The Law of Baron and Femme (New Haven, CT: Oliver Steele, 1816)Google Scholar; and Gould, James, A Treatise on the Principles of Pleading in Civil Actions (Boston: Lilly and Wait, 1832)Google Scholar.

34. See Story, Joseph, Commentaries on the Law of Bailments with Illustrations from the Civil and the Foreign Law (Cambridge, MA: Hilliard and Brown, 1832)Google Scholar, §214, §216.

35. For more on the national focus of legal texts in America, see Hulsebosch, “Empire of Law,” 387; Surrency, History of American Law Publishing, 30; and Hoeflich, Legal Publishing, 177–78.

36. Reeve, Law of Baron and Femme, i. As Angela Fernandez has pointed out, Reeve was criticized for failing to accurately depict the state of the common law. Such criticisms demonstrate the practical expectations of the readers of American treatises. See Fernandez, “Tapping Reeve,” 69.

37. Hoeflich, Legal Publishing, 34.

38. See LaCroix, Alison L., “Federalists, Federalism, and Federal Jurisdiction,” Law and History Review 30 (2012): 237–43CrossRefGoogle Scholar; Edwards, People and Their Peace, 251–55; and Huebner, Southern Judicial Tradition, 5–8. Although the content of professional legal culture is not the primary focus of her book, Laura Edwards provides convincing evidence of its spread in the South and of Tapping Reeve's role in its production. See ibid., 220–55.

39. Faust, Drew Gilipin, “Introduction,” in The Ideology of Slavery: Proslavery Thought in the Antebellum South, 1830–1860, ed. Gilpin, Drew Faust (Baton Rouge: Louisiana State Press, 1981), ixGoogle Scholar, 9–10. Freehling, Road to Disunion, 164, 524; and Carey, Anthony Gene, Parties, Slavery, and the Union in Antebellum Georgia (Athens: University of Georgia Press, 2012), 15Google Scholar.

40. Huebner, Southern Judicial Tradition, 5, 81–87; Schweber, Creation, 2, 226–40, 260; and Brophy, University, xix.

41. Nash, A.E. Keir, “Fairness and Formalism in the Trials of Blacks in the State Supreme Courts of the Old South,” Virginia Law Review 56 (1970): 77CrossRefGoogle Scholar; Jennision, Watson W., Cultivating Race: The Expansion of Slavery in Georgia, 1750–1860 (Lexington: University of Kentucky Press, 2012), 289–90CrossRefGoogle Scholar; and Hunt, James L., “Law, Business, and Politics: Liability for Accidents in Georgia, 1846–1880,” Georgia Historical Quarterly 84 (2000): 265–66Google Scholar. Lumpkin encouraged the development of a diversified Southern economy and promoted a paternalistic conception of slavery, which he believed “had both divine origins and biblical justifications.” Huebner, Southern Judicial Tradition, 88, 86, 96, 97. See also Brophy's analysis of Lumpkin. Brophy, University, 212–26.

42. Sorted into the categories that modern lawyers use, they most commonly involved real property, estate planning, commercial law, finance and banking, corporate governance, and family law.

43. Judicial issues with obvious political valence have received significant interest from commentators. See, for example, Horwitz, Transformation; and Karsten, Peter, Heart vs Head: Judge-Made Law in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1997)Google Scholar.

44. Fielder, Bros. & Co. v. Collier, 13 Ga. 496 (1853).

45. Brown v. Upton, 12 Ga. 505 (1853).

46. McCay v. Devers, 9 Ga. 184 (1850).

47. See, for example, Johnson v. Hall, 5 Ga. 384 (1848); Central Bank of Georgia v. Whitfield, 1 Ga. 593 (1846); Brown v. Chaney, 1 Ga. 410 (1846); and Mahaffey v. Petty, 1 Ga. 261 (1846).

48. Fielder, Bros. & Co. v. Collier, 499,

49. McCay v. Devers, 184–85.

50. Johnson v. Hall, 389.

51. Brown v. Upton, 507.

52. Fielder, Bros. & Co. v. Collier, 13 Ga. 496 (1853).

53. Even historians such as Thomas Morris who draw attention to the legalism of Southern judges focus on the laws directly related to slavery rather than to the broader system of Southern (and national) law. See, for example, Morris, Southern Slavery, 424–28. For examples of the run-of-the-mill cases seen by the Georgia Supreme Court, see N. Owsley & Son v. Woolhopter, 14 Ga. 124 (1853) (cotton debt); Elkins v. State, 13 Ga. 435 (1853) (liquor licensing); Dougherty v. W. Bank of Ga. 13 Ga. 287 (1853) (proper procedure for redeeming bank notes); Wyche v. Winship, 13 Ga. 208 (1853) (question of parol evidence in note redemption); Stamper v. Griffin, 12 Ga. 450 (1853) (evidentiary questions related to land sale); Crawford v. State, 12 Ga. 142 (1852) (jury instructions in homicide); Prothro v. Orr, 12 Ga. 36 (1852) (debt and statutory drafting); Gilbert v. Hardwick 11 Ga. 599 (1852) (will administration); Murphy v. Justices of Inferior Court, 11 Ga. 331 (1852) (evidentiary question related to duties of official in sale of runaway slave); Guerry v. Durham, 11 Ga. 9 (1852) (estate dispute involving equity procedures); Hotchkiss v. Newton, 10 Ga. 560 (1851) (contract case over castings hinging on evidentiary issues); Beall v. Blake, 10 Ga. 449 (1851) (evidentiary and equity issues in will case); Rolfe v. Rolfe, 10 Ga. 143 (1851) (evidence in debt dispute); Faircloth v. Freeman, 10 Ga. 249 (1851) (duty of sheriff); Davis v. Lowman, 9 Ga. 504 (1851) (evidentiary and procedural issues in inheritance case); Mobley v. Mobley, 9 Ga. 247 (1851) (jurisdiction); Wellborn v. Williams, 9 Ga. 86 (1850) (land sale and vendor's lien); Grant v. McLester, 8 Ga. 553 (1850) (dispute over notes paid to assume clerkship); Hardwick v. Hook, 8 Ga. 354 (1850) (procedural and evidentiary issues in case involving judgment to be paid in slaves); Settle v. Alison, 8 Ga. 201 (1850) (evidentiary issues related to selling of slave); Baldwin v. Lessner, 8 Ga. 71 (1850) (procedural issues related agreement for use of mill); Bird v. Adams, 7 Ga. 505 (1849) (statute of limitations for note); Stroud v. Mays, 7 Ga. 269 (1849) (dispute over power of jury in case related to sale of slave who died); Williams v. Turner, 7 Ga. 348 (1849) (competition between ferries involving evidentiary issues); Dougherty v. Bethune, 7 Ga. 90 (1849) (estoppel in case related to railroad bank notes); Brewer v. Brewer, 6 Ga. 587 (1849) (paying of court costs); Wilcoxson v. Myrick, 6 Ga. 410 (1849) (execution for seizure of slave); Perry v. Higgs, 6 Ga. 43 (1849) (court procedure); Frederick v. City of Augusta, 5 Ga. 561 (1848) (tax of municipal corporation); Doe v. Lancaster, 5 Ga. 39 (1848) (land titles and ejectment); Hall v. Page, 4 Ga. 428 (1848) (trover, garnishment); Barron v. Chipman, 4 Ga. 200 (1848) (sheriff's duties related to seizing slaves); Smith v. Thompson, 3 Ga. 23 (1847) (proper service of writs); Cairns v. Iverson, 3 Ga. 132 (1847) (cross suits in inheritance dispute); Carter v. Buchanan, 2 Ga. 337 (1847) (trover, procedure for multiple actions); Guerry v. Perryman, 2 Ga. 63 (1847) (procedure involving multiple suits); Brown v. Chaney, 1 Ga. 410 (1846) (promissory note procedure and evidence); and Hardee v. Stovall, Simmons & Co. (1846) (procedural dispute between creditors).

54. Lawrence Friedman has also argued that the social aims of judges may not have affected their decision making as much as other historians have claimed. See Friedman, Lawrence M., “Losing One's Head: Judges and the Law in Nineteenth-Century American Legal History,” Law & Social Inquiry 24 (1999): 253–79CrossRefGoogle Scholar. He does not, however, see legal culture and legal tradition as significant forces in legal decision making. Ibid., 263, 277.  Laura Edwards has noticed the links between Northern and Southern judge and lawyers, but she focuses on the language of rights rather than of legalism. Edwards, People and Their Peace.

55. See, for example, Jordan v. Thornton, 7 Ga. 517, 517 (1849) (holding that children were absolute owners of slaves deeded to their mother in trust).

56. See Hopkins v. Burch, 3 Ga. 222, 222 (1847) (proper procedure for a constable levy “lands and negroes” from Act of 1811).

57. See Adams v. Mizell, 11 Ga. 106, 108 (1852).

58. The courts cited these cases both before and after the Civil War. See Sears v. Cottrell, 5 Mich. 251, 259 (1858), Warren v. Commonwealth, 37 Pa. 45, 51 (1861), and Reckner v. Warner, 22 Ohio St. 275, 278 (1872), citing Flint River Steamboat Co. v. Foster, 5 Ga. 194 (1848); see also People v. Vasquez, 49 Cal. 560, 561 (1875), citing Berry v. State, 10 Ga. 511 (1851), a case stemming from larceny by a slave; Emerson v. Atwater, 7 Mich. 12, 15 (1859), citing Miller v. Cotton, 5 Ga. 341 (1848), a case disputing inheritance of slaves; and Howland v. Conway, 12 F. Cas. 730, 732 (S.D.N.Y. 1848), citing Bryan v. Walton, 14 Ga. 185 (1853), a case related to the appointment of a guardian for a free person of color.

59. Neal v. Farmer, 9 Ga. 555, 559 (1851) (citing Adams v. Barrett, 5 Ga. Rep. 404 [1848]).

60. The case has been misinterpreted. See, for example, Weinberg, Louise, “Methodological Interventions and the Slavery Cases; Or, Night–Thoughts of a Legal Realist,” Maryland Law Review 56 (1997): 1316Google Scholar n.77; and “What We Talk about When We Talk about Persons: The Language of Legal Fiction,” Harvard Law Review 114 (2011): 1748 and n.11. Section twelve of the 1798 Georgia Constitution mandated that people who killed slaves be punished as if the slave were “a free white person.” The law contained two exceptions—one for slave “insurrection,” and another for “accident[al]” death as a result of “moderate correction”—but neither applied in Neal. See Ga. Const. of 1798 art. IV., § 12. The Constitution's clause was put into effect by a bill passed by the Georgia legislature in 1799. An Act to Carry into Effect the 12th Section of the 4th Article of the Constitution, 1 Cobb's Digest 982 (1852). Punishment for murder was hanging without clergy, and for manslaughter it was branding. Ibid.

61. Determining which acts were deemed to be common law crimes required the analysis of English case law, which applied the designation to actions from smuggling sheep to homicide. Blackstone, Commentaries, vol. 4, 152, 176.

62. Neal v. Farmer, 560. Nisbet drew attention to the difficulty of the legal questions at issue and noted that he and the other justices were “pleased to record [their] sense of the value of the discussion which this cause has elicited at the hands of the counsel.” Ibid., 560.

63. Ibid.

64. Ibid. Nisbet made this point by citing Blackstone, Commentaries, vol. 2, 92–93; Temple, William, An Introduction to the History of England (London: Richard Simpson, 1695), 59Google Scholar; and Turner, Sharon, History of the Anglo-Saxons, vol. 3, 3rd ed. (London: Longman, Hurst, Rees, Orme, and Brown, 1820)Google Scholar.

65. Neal v. Farmer, 566.

66. Ibid.

67. Ibid., 579.

68. Ibid., 573.

69. Ibid., 580.

70. Commonwealth v. Aves, 35 Mass. 193 (1836); and Sim's Case, 61 Mass. 285 (1851).

71. Neal v. Farmer, 581–82. Nisbet's criticism derived from the courts’ use of the term “customary law.” Nisbet surmised that it meant “the usages of the State where slavery exists, springing up under the slave trade, and sanctioned by the Law of Nations.” Ibid. This is a plausible interpretation of the court's conclusion that rules could be established by “tacit acquiescence.” 35 Mass. 212.

72. For more on the use of opinions to communicate with a Northern audience, see Reid, “Lessons of Lumpkin,” 580–81, 624.

73. See, for example, Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (New Haven, CT: Yale University Press, 1978); and Fisher, “Ideology and Imagery,” 1080–82.

74. See Morris, Southern Slavery, 52–55, for a discussion of these cases.

75. Nash goes as far as to argue that Southern courts exhibited “fairness and integrity” in their cases involving black defendants. Nash, “Fairness and Formalism,” 99.

76. See, for example, Berry v. State, 10 Ga. 511 (1851), which lawyers have cited 287 times, including as recently as 2015. The portion of the case most frequently cited relates to whether newly discovered evidence should lead to a new trial. The case also involved the matter of whether a “negro” could testify. Berry v. State, 521. Other cases frequently cited include Nunn v. State, 1 Kelly 243 (Ga. 1846) (right to bear arms); Mitchum v. State, 11 Ga. 615 (1852) (evidentiary questions and permissible topics for closing argument); Roberts v. State, 3 Ga. 310 (1847) (accountability for criminal acts); Flint River Steamboat Co. v. Foster, 5 Ga. 194 (1848) (requirements for jury trial); Potts v. House, 6 Ga. 324 (1849) (evidence); Wright v. Hicks 12 Ga. 155 (presumption of parentage); Hightower v. Thornton, 8 Ga. 486 (1850) (equitable power of creditors to corporation); and Miller v. Cotten, 5 Ga. 341 (1848) (wills). For more on the contemporary citation of slave cases, see Justin Simard, “Citing Slavery,” Stanford Law Review 72 (forthcoming).

77. For example, Paul Finkelman has found that, at least before 1840, courts seemed to rely on legal technicality and to enforce slave law in ways that contradicted their sectional interest. Judges analyzed slave transit cases, for example, in terms of the technical field of conflict of laws, and judges in free states granted slave owners permission to travel without having their slaves seized. See Finkelman, Imperfect Union, 13, 46, 181; see also Cover, Justice Accused, 199, noting that judges “seemed very reluctant to resort to, and thus legitimate, substantial doctrinal innovations that might have made certain cases less a choice between law and morality and more a choice between alternative legal formulations”; and Brophy, University, 197–211, discussing Thomas Ruffin, who he finds to be representative of judges in the Antebellum Era because he “revered precedent” and “separated law from morality.” This separation can also be found in Chief Justice John Marshall's opinions when confronting politically charged issues. See, for example, Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823); and The Antelope, 23 U.S. (10 Wheat.) 66 (1825).

78. See Friedman, History of American Law, 589.  But also see Bakken, Gordon Morris, Practicing Law in Frontier California (Lincoln, NE: University of Nebraska Press, 1991)Google Scholar; Pease, William H. and Pease, Jane H., James Louis Petigru: Southern Conservative, Southern Dissenter (Athens: University of Georgia Press, 1995), 95–115Google Scholar; Russell, Thomas D., “The Antebellum Courthouse as Creditors' Domain: Trial-Court Activity in South Carolina and the Concomitance of Lending and Litigation,” American Journal of Legal History 40 (1996): 331–64CrossRefGoogle Scholar; Moretta, John Anthony, William Pitt Ballinger: Texas Lawyer, Southern Statesman, 1825–1888 (Austin: Texas State Historical Association, 2000), 63–110Google Scholar; and Hadden, Sally E., “DeSaussure and Ford: A Charleston Law Firm of the 1790s,” in Transformations in American Legal History: Essays in Honor of Professor Morton J. Horwitz, ed. Hamilton, David W. and Brophy, Alfred L. (Cambridge, MA: Harvard Law School, 2009)Google Scholar.

79. James A. Nisbet attended the Litchfield Law School and was admitted to the bar in 1833. He worked for Nisbet and Nisbet after working for Poe and Nisbet. Later the firm was renamed “Nisbets, Cobb & Jackson.” See Southern Historical Association, Memoirs of Georgia: Containing Historical Accounts of the State's Civil, Military Industrial and Professional Interests, and Personal Sketches of Many of Its People, vol. 1 (Atlanta, GA: Southern Historical Association, 1895): 576–78. For more on James T. Nisbet, see Knight, Lucian Lamar, Georgia's Landmarks, Memorials, and Legends, vol. 2 (Atlanta, GA: Byrd Printing Company, 1914), 388Google Scholar.

80. See, for example, William Bullock to E.A. and J.A. Nisbet, January 28, 1853, DRML (discussing “sale of negroes” in Drayton, GA); and H. Green to E.A. and J.A. Nisbet, Feb. 17, 1859, DRML (discussing repossession of “a negro woman named Ann and her children” to satisfy a debt).

81. See A.G. Gibson to E.A. Nisbet, September 9, 1857, DRML (Barnesville, GA); A.C. Wyly & Co. to E.A. and J.A. Nisbet, May 3, 1860 (Atlanta, GA); and Ulna S. Lawton to E.A. Nisbet, June 20, 1854 (Lawtonville, SC).

82. For information on the power of New York businessmen in the nineteenth century, see Beckert, Sven, The Monied Metropolis: New York City and the Consolidation of the American Bourgeoisie, 1850–1886 (Cambridge: Cambridge University Press, 2003)Google Scholar. Nisbet's records also contain correspondence with clients in other Northern hubs of commerce such as Baltimore and Philadelphia. See, for example, E.H. Stabler & Co. to E.A. and J.A. Nisbet, January 6, 1860, DRML (Baltimore, MD); Prince I. Patton & Co. to J.C. Plant, January 10, 1854, DRML (debt on behalf of a company based in Philadelphia); and William Goodrich & Co. to E.A. and J.A. Nisbet, January 9, 1855, DRML (request from Philadelphia to collect a debt of $156.65); and L. Haywood to E.A. and J.A. Nisbet, January 31, 1860 (request related to question for Boston-based chair company).

83. Firth, Pond, & Co. to E.A. and J.A. Nisbet, September 15, 1856, DRML (music company); Prince I. Patton & Co. to J.C. Plant, January 10, 1854  (“Hat and Cap Manufacturers”); B. Douglas & Co. to E.A. and J.A. Nisbet, October 10th, 1857, DRML, redeeming note on behalf of Edward Block & Co., see F.G. Duffield, “The Merchants’ Cards and Tokens of Baltimore,” The Numismatist 20 (1907): 65, 68 n.13, discussing importing business; J.S. Martin to E.A. and J.A. Nisbet, December 31 1860, DRML (“butter and cheese” merchants requesting redemption of note for $441.70); and Bradley Brothers to Nisbet and Nisbet, November 15, 1860, DRML (“Importers of Brandies”). Bradley Brothers apparently did a “large and apparently prosperous business … principally with the merchants of the Southern States, and on a credit”; see Allen, George P., A History and Genealogical Record of the Alling-Allens of New Haven, Conn., The Descendants of Roger Alling, First, and John Alling, Sen., From 1639 to the Present Time (New Haven, CT: Press of the Price, Lee, & Akins Co., 1899), 187Google Scholar. See also Allen McLean & Bulkley to E.A. and J.A. Nisbet, Sepember 9, 1859, DRML (“Importers & Jobbers”).

84. Freehling, Road to Disunion, 27. As Daniel Lord Smail has noted in a much earlier period, goods such as these could serve as “sources of dignity” and vital “markers of identity.” Smail, Daniel Lord, Legal Plunder: Households and Debt Collection in Late Medieval Europe (Cambridge, MA: Harvard University Press, 2016), 3–4CrossRefGoogle Scholar.

85. See Levy, Jonathan, Freaks of Fortune: The Emerging World of Capitalism and Risk in America (Cambridge, MA: Harvard University Press, 2012), 1–6CrossRefGoogle Scholar, 39–44.

86. For a discussion of the importance of credit to the Southern economy see Beckert, Sven, Empire of Cotton: A Global History (New York: Vintage, 2014), 219–24Google Scholar; and Woodman, Harold D., King Cotton and His Retainers: Financing and Marketing the Cotton Crop of the South, 1800–1925 (Lexington: University of Kentucky Press, 1968), 30–42Google Scholar, 132–38.

87. See Howe, Daniel Walker, What Hath God Wrought: The Transformation of America, 1815–1848 (Oxford: Oxford University Press, 2007), 211–42Google Scholar, 563–69, 690–98; Woodman, King Cotton, 273–74.

88. B. Douglas & Co. to E.A. Nisbet & J.A. Nisbet, October 10, 1857, DRML.

89. Ibid.

90. See, for example, W.M. Goodrich & Co. to E.A. and J.A. Nisbet, January 9, 1855, DRML, writing from Philadelphia on behalf of Russel & Scott for collection of a note worth $156; Jabez D. Pratt to E.A. and J.A. Nisbet, February 9, 1859, DRML, writing from Baltimore on behalf of Egerton, Dougherty, Woods, & Co., operators of a steam-powered sugar refinery for collection of a note worth $446.43; Baltimore Board of Trade, Statistics of the Trade and Commerce of Baltimore for the Year Ending December 31, 1857 (Baltimore: James Young, 1858), 34; Robertson, Hudson, & Pulliam to E.A. & J.A. Nisbet, December 25, 1857, DRML, documenting request of New York dry goods merchants; and Wilson, H., comp., Trow's New York City Directory for the Year Ending May 1, 1857 (New York: John F. Trow, 1857), 699Google Scholar.

91. See D. Devlin & Co. to E.A. and J.A. Nisbet, October 19, 1858, DRML.

92. Jabez D. Pratt to E.A. and J.A. Nisbet, February 9, 1859, DRML.

93. See Ward, Jackson, & Jones to E.A. and J.A. Nisbet, October 14, 1859, DRML, writing on behalf of their clients, the Planter's Bank of Savanah, Georgia.

94. For the history of R.G. Dun & Co., see “D&B,” in International Directory of Company Histories, vol. 121, ed. Derek Jacques and Paula Kepos (Detroit, MI: St. James Press, 2011); see also Sandage, Scott, Born Losers: A History of Failure in America (Cambridge, MA: Harvard University Press, 2005)CrossRefGoogle Scholar. The New York Times published a letter from Dun, Boyd, & Co. to its subscribers, in which the firm tried to reassure Northern investors in Southern markets: “The tenor of the advices which reach us from all points South warrants us in saying that no one need doubt the honorable intentions of the Southern merchant, and that his indebtedness will be faithfully discharged as promptly as events permit. There will be delay in settlement, but this delay will not arise from any premeditated cause or present desire to postpone payment. The reclamations on cotton last Spring and at present have had their influence in producing a stringent money market.” “The Political Crisis and Commerce: Failures of 1860 Compared with 1857—from the Office of the Mercantile Agency of Dun, Boyd & Co.,” New York Times, January 3, 1861, 3.

95. See, for example, Dun, Boyd & Co. to E.A. and J.A. Nisbet, December 30. 1859, DRML; and Dun, Boyd, & Co. to E.A. and J.A. Nisbet, July 10, 1860. His work for Dun, Boyd, & Co. resumed after the war. See E.A. Nisbet, Ledger, 1865–1870, DRML.

96. See John Merryman to James T. Nisbet, April 29, 1855, DRML, noting meeting in the “Spring of 1853;” Letter to E.A. and J.A. Nisbet, March 27, 1860, DRML, introducing secretary of Humboldt Insurance in Newark, NJ; and John S. Martin to E.A. Nisbet, December 31, 1860, sending note for collection worth $441.70 and noting that he was referred by a fellow New Yorker. See Hopkins, Allen, & Co. to E.A. & J.T. Nisbet, April 24, 1856, DRML, writing that they had “received your circular and [were] honored with a prominent place among your references in this city.”

97. For detailed analysis of debt collections practices in court, see Russell, “Antebellum Courthouse,” 331–64.

98. See Advertisement for Nisbets & Jackson, Attorneys at Law, November 1, 1872, DRML. 217.

99. Nisbet's papers and books from the 1850s to the 1870s demonstrate numerous examples of out-of-court negotiation. Clients frequently preferred settlement and expressed their willingness to compromise, or at least delegated the decision on whether to settle to Nisbet. Only rarely did cases land in federal or state court. Suit actually seemed to be, as Nisbet put it in an advertisement, “the last alternative.” See, for example, G.W. Robert to E.A. Nisbet, July 27, 1855, DRML discussing settlement; Copy of E.A. and J.A. Nisbet to B.A. Fahnstock, Hull & Co. October 24, 1859, DRML, reporting on settlement negotiations; Allen, McLean, & Bulkley to E.A. and J.A. Nisbet, September 9, 1859, DRML, noting “willingness to accept … settlement”; Agency People Bank to E.A. & J.A. Nisbet, March 18, 1858, DRML, instructing Nisbet to give debtor “as much time as [he could] without inconvenience or risk”; John Priestel, Jr. to E.A. Nisbet and Junius Wingfield, July 26, 1848, DRML, discussing prospects of settlement; and John S. Martin to E.A. and J.A. Nisbet, Dec. 31, 1860, encouraging firm to “use [its] best judgment” in redeeming note.”

100. See Seth Rockman, “The Future of Civil War Era Studies: Slavery and Capitalism,” Journal of the Civil War Era 2 (2012), http://journalofthecivilwarera.org/forum-the-future-of-civil-war-era-studies/the-future-of-civil-war-era-studies-slavery-and-capitalism/ (accessed April 30, 2019); Rosenthal, Caitlin, Accounting for Slavery: Masters and Management (Cambridge, MA: Harvard University Press, 2018)CrossRefGoogle Scholar; Marrs, Aaron, Railroads in the Old South: Pursuing Progress in a Slave Society (Baltimore, MD: John Hopkins University Press, 2009), 12Google Scholar; Majewski, John, Modernizing a Slave Economy: The Economic Vision of the Confederate Nation (Chapel Hill: University of North Carolina Press, 2014)Google Scholar; Edwards, People and Their Peace, 78–79; Kilbourne, Richard Holcombe Jr., Debt, Investment, Slaves: Credit Relations in East Feliciana Parish, Louisiana, 1825–1885 (Tuscaloosa: University of Alabama Press, 1995)Google Scholar; and Martin, Bonnie, “Slavery's Invisible Engine: Mortgaging Human Property,” The Journal of Southern History 76 (2010): 817–66Google Scholar. Beckert, Empire of Cotton, xvi–xviii. Although these questions have generated significant attention recently, they have deep roots; see Eric Eustace Williams, Capitalism and Slavery (Chapel Hill: University of North Carolina Press, 1994 [originally published in 1944]); and North, Douglass C., The Economic Growth of the United States, 1790–1860 (Englewood Cliffs, NJ: Prentice–Hall, 1961), 101–21Google Scholar.

101. Harris, J. William, “Preface,” in Southern Society and its Transformations, 1790–1860, ed. Delfino, Susanna, Gillespie, Michele, and Kyriakoudes, Louis M. (Columbia: University of Mississippi Press, 2011), 1–8Google Scholar; Wright, Robert E., “Corporate Entrepreneurship in the Antebellum South,” in Southern Society and its Transformations, 1790–1860, ed. Delfino, Susanna, Gillespie, Michele, and Kyriakoudes, Louis M. (Columbia, MS: University of Mississippi Press, 2011), 197–216Google Scholar: 208.

102. E.A. Nisbet, Diary, November 28, 1869, annotated by Junius W. Nisbet, DRML July 7, 1927.

103. Soltow, Lee, Men and Wealth in the United States, 1850–1870 (New Haven, CT: Yale University Press, 1975), 65Google Scholar.

104. Ibid. He had returned to “the exciting strife of the Bar,” only because his family needed the money. E.A. Nisbet, Diary, February 7, 1870, DRML; and E.A. Nisbet, Diary, December 10, 1853, DRML.

105. See, for example, E.A. Nisbet, Diary, December 29, 1853, DRML, in which Nisbet discusses his pride in applying a difficult legal doctrine. He enjoyed such cases so much that he did not even mind losing them. E.A. Nisbet, Diary, March 10, 1854.

106. Robinson, William M., Justice in Grey; A History of the Judicial System of the Confederate States of America (Cambridge, MA: Harvard University Press, 1941), 83Google Scholar, 140.

107. Warner, Ezra J. and Yearns, W. Buck, A Biographical Register of the Confederate Congress (Baton Rouge: Louisiana State University Press, 1975), 148Google Scholar; and Bass, James Horace, “The Georgia Gubernatorial Elections of 1861 and 1863,” The Georgia Historical Quarterly 17 (1933): 176–77Google Scholar.

108. R.G. Dun & Co. to E.A. and J.A. Nisbet, August 28, 1865, DRML. Other lawyers also quickly resumed correspondence. See Bloomfield, Max, American Lawyers in a Changing Society, 1776–1876 (Cambridge, MA: Harvard University Press), 298–301Google Scholar.

109. Henry Hews & Co. to E.A. and J.A. Nisbet, December 20, 1865, DRML; Letter to E.A. and J.A. Nisbet, October 30, 1865, DRML; R.G. Dun & Co. to E.A. and J.A. Nisbet, October 20, 1865, DRML, writing on behalf of John F. Raithbone; and Letter to E.A. and J.A. Nisbet, January 29, 1866, DRML. Nisbet's firm was also dealing with the consequences of war for his clients. See, for example, Andrew J. Hansell to E.A. Nisbet, July 5, 1866, DRML, discussing use of Confederate currency.

110. E.A. Nisbet, Diary, November 28, 1869, DRML.

111. E.A. Nisbet, Diary, December 15, 1869, DRML.

112. E.A. Nisbet, Diary, May 3, 1870, DRML.

113. See E.A. Nisbet, Diary, November 28, 1869, DRML, discussing loss of “the greater part of” his estate during the war. According to his relatives, Nisbet's property was valued at $25,000 at his death. See E.A. Nisbet, Diary, November 28, 1869, annotated by Junius W. Nisbet, DRML.

114. See Joshua L. Rosenbloom and Gregory W. Stutes, “Reexamining the Distribution of Wealth in 1870,” Working Paper 11482 (National Bureau of Economic Research, 2005), http://www.nber.org/papers/w11482.pdf (accessed April 30, 2019).

115. Horwitz, Transformation; and Karsten, Heart vs Head.

116. E.A. Nisbet, Diary, October 8, 1870, DRML.

117. Ibid.