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Toward a Solution of the Slave Law Dilemma: a Critique of Tushnet's ‘The American Law of Slavery’

Published online by Cambridge University Press:  28 October 2011

Andrew Fede
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Extract

Despite the recent rebirth of scholarly interest in the law of slavery, Kenneth Stampp's The Peculiar Institution contains the best twentieth century overview of the internal law of slavery in the antebellum South. Nevertheless, Stampp's interpretation leaves unresolved the ‘dilemma’ that he argues also puzzled slave masters, legislators, and magistrates: How the law could recognize slaves both as ‘property’ and as ‘persons.’ To Stampp, the ‘dual character of the slave’ was an irreconcilable contradiction:

…there was no way to resolve the contradiction implicit in the very term ‘human property.’ Both legislators and judges frequently appeared erratic in dealing with bondsmen as both things and persons.

Although Stampp states that, ‘the slave's status as property was incompatible with his status as a person,’ he concludes that ‘throughout the antebellum South…legally, the slave was less a person than a thing.’

Type
Review Essay
Information
Law and History Review , Volume 2 , Issue 2 , Fall 1984 , pp. 301 - 320
Copyright
Copyright © the American Society for Legal History, Inc. 1984

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References

1. Recent books concerning slave law, other than the volume under analysis, include: Finkelman, Paul, An Imperfect Union: Slavery, Federalism, and Comity (Chapel Hill, 1981Google Scholar) (Hereinafter cited as Imperfect Union); Hindus, Michael S., Prison and Plantation: Crime, Justice, and Authority in Massachusetts and South Carolina, 1767-1878 (Chapel Hill, 1980Google Scholar) (Hereinafter cited as Hindus); Higginbotham, A. Leon, In the Matter of Color: Race and the American Legal Process: The Colonial Period (New York, 1978Google Scholar) (Hereinafter cited as Higginbotham); Fehrenbacher, Don Edward, The Dred Scott Case: Its Significance in American Law and Politics (New York, 1978)Google Scholar; Wiecek, William, The Sources of Antislavery Constitutionalism in America, 1760-1848 (Ithaca, 1977)Google Scholar; and Cover, Robert M., Justice Accused: Antislavery and the Judicial Process (New Haven, 1975)Google Scholar. Major articles published since 1968 include: A. Fede, ‘Legitimized Violent Slave Abuse in the American South, 1619-1865: A Case Study of Law and Social Change in Six Southern States,’ American Journal of Legal History. (Forthcoming) (Hereinafter cited as Fede); Flanigan, D.J., ‘Criminal Procedure in Slave Trials in the Antebellum South,’ 40 Journal of Southern History 537 (1974CrossRefGoogle Scholar) (Hereinafter cited as Flanigan); Howington, A., ‘’Not in the Condition of a Horse or an Ox:’ Ford v. Ford, The Law of Testamentary Manumission, and the Tennessee Court's Recognition of Slave Humanity,’ 34 Tennessee Historical Quarterly 249 (1975Google Scholar) (Hereinafter cited as Howington); Langum, D.J., ‘The Role of Intellect and Fortuity in Legal Change: An Incident from the Law of Slavery,’ 28 American Journal of Legal History 1 (1984CrossRefGoogle Scholar) (Hereinafter cited as Langum); Morris, T.D., ‘’As if the Injury was Effected by the Natural Elements of Air or Fire’: Slave Wrongs and the Liability of Masters,’ 16 Law & Society Review 567 (1982Google Scholar); Nash, A.E.K., ‘Reason of Slavery: Understanding the Judicial Role in the Peculiar Institution,’ 32 Vanderbilt Law Review 7 (1979Google Scholar) (Hereinafter cited as ‘Reason of Slavery’); Nash, A.E.K., ‘Fairness and Formalism in the Trials of Blacks in the State Supreme Courts of the Old South,’ 56 Virginia Law Review 64 (1970Google Scholar) (Hereinafter cited as ‘Fairness’); Nash, A.E.K., ‘A More Equitable Past? Southern Supreme Courts and the Protection of Antebellum Negro Rights,’ 48 North Carolina Law Review 197 (1970)Google Scholar (Hereinafter cited as ‘Equitable Past?’); Nash, A.E.K., ‘Negro Rights, Unionism and Greatness on the South Carolina Court of Appeals: The Extraordinary Chief Justice John Belton O'Neall,’ 21 South Carolina Law Review 141 (1969Google Scholar) (Hereinafter cited as ‘Negro Rights’); Nash, A.E.K., ‘The Texas Supreme Court and Trial Rights of Blacks, 1845-1860,’ 58 Journal of American History 622 (1971CrossRefGoogle Scholar) (Hereinafter cited as ‘Trial Rights’); Tushnet, M.V., ‘The American Law of Slavery 1810-1860: A Study in the Persistence of Legal Autonomy,’ 10 Law & Society Review 119 (1975CrossRefGoogle Scholar) (Hereinafter cited as Tushnet-1975).

2. See, Stampp, Kenneth M., The Peculiar Institution (New York, 1956) 192–236Google Scholar (Hereinafter cited as Stampp). The writings of the nineteenth century anti-slavery writers, however, remain the most valuable materials on slave law. See Stroud, George M., A Sketch of the Laws Relating to Slavery (New York, reprinted ed. 1968Google Scholar) (1856); Goodell, William, The American Slave Code (New York, reprinted ed. 1968Google Scholar) (1853) (Hereinafter cited as Goodell); Stowe, Harriet B., The Key to Uncle Tom's Cabin (Boston, 1853Google Scholar) (Hereinafter cited as Stowe); see also, Catterall, Helen H., Judicial Cases Concerning American Slavery and the Negro (New York, reprinted ed. 1968Google Scholar) (1926); Hurd, John C., The Law of Freedom and Bondage in the United States (New York, reprinted ed. 1968Google Scholar) (1862) (Hereinafter cited as Hurd). For the pro-slavery view, see Cobb, Thomas R.R., An Inquiry Into the Law of Negro Slavery in the United States of America (New York, reprint ed. 1968Google Scholar) (1858), and Wheeler, Jacob D., A Practical Treatise on the Law of Slavery (New York, reprinted ed. 1968Google Scholar) (1837) (Hereinafter cited as Wheeler).

3. See Stampp, supra note 2 at 192-193.

4. Ibid. at 193 (emphasis in original).

5. Ibid.

6. Ibid., see also, Goodell, supra note 2 at 201.

7. See Higginbotham, supra note 1 at 7. See also, Kiely, T.F., ‘The Hollow Words: An Experiment in Legal Historical Method As Applied to the Institution of Slavery,’ 25 De Paul Law Review 842, 842–859 (1976)Google Scholar.

8. See, ‘Equitable Past?’, supra note 1 at 201-202.

9. Genovese, Eugene D., Roll, Jordan, Roll: The World the Slaves Made (New York, 1974) 28Google Scholar (Hereinafter cited as Roll, Jordan, Roll).

10. Patterson, Orlando, Slavery and Social Death: A Comparative Study (Cambridge, 1982) 22Google Scholar (Hereinafter cited as Patterson).

11. Tushnet, Mark V.. The American Law of Slavery 1810-1860: Considerations of Humanity and Interest (Princeton, 1981Google Scholar) (Hereinafter cited as Tushnet).

12. Most of the reviews of Tushnet's book are quite negative. See Finkelman, P., ‘The Peculiar Laws of the Peculiar Institution,’ 10 Reviews in American History 358 (1982CrossRefGoogle Scholar) (Hereinafter cited as Finkelman); Hall, K.L., Book Review, 87 American Historical Review 855 (1982CrossRefGoogle Scholar) (Hereinafter cited as Hall); Hyman, H.M., Book Review, 21 Journal of American History 158 (1982)CrossRefGoogle Scholar; Manfra, J., Book Review, 27 American Journal of Legal History 388 (1983CrossRefGoogle Scholar) (Hereinafter cited as Manfra); Osgood, R., Book Review, 67 Cornell Law Review 428 (1982Google Scholar) (Hereinafter cited as Osgood); Watson, A., ‘Slave Law: History and Ideology,’ 91 Yale Law Journal 1034 (1982CrossRefGoogle Scholar) (Hereinafter cited as Watson); and W.M. Wiecek, Book Review, 1981 American Bar Foundation Research Journal 274 (Hereinafter cited as Wiecek). But see, Genovese, E.D., ‘Slavery in the Legal History of the South and the Nation,’ 59 Texas Law Review 969, 980–998 (1981Google Scholar), and Taylor, Q., Book Review, 42 Journal of Economic History 715 (1982CrossRefGoogle Scholar). See generally, Nash, A.E.K., ‘In re Radical Interpretations of American Law: The Relation of Law and History,’ 82 Michigan Law Review 274 (1983CrossRefGoogle Scholar) (Hereinafter cited as ‘Radical Interpretations’).

13. See Tushnet supra note 11 at 11-43.

14. Tushnet provides the technical legal detail absent from Professor Genovese's writings. Compare Roll, Jordan, Roll, supra note 9 at 25-70.

15. For further development of Tushnet's definition of ‘relative legal autonomy’ and the ideological functions of legal doctrine, see Tushnet, M.V., ‘A Marxist Analysis of American Law,’ Marxist Perspectives 96 (1978Google Scholar) (Hereinafter cited as ‘Marxist Analysis’), and ‘Perspectives on the Development of American Law: A Critical Review of Friedman's ‘A History of American Law,’ 1977 Wisconsin Law Review 81Google Scholar (Hereinafter cited as ‘Critical Review’).

16. Compare Ibid. at 81-84, with Tushnet, supra note 11 at 27-30.

17. See Ibid. Tushnet emphasizes the ‘autonomous’ nature of legal change in his 1975 article, and states that the course of legal change in the antebellum law of slavery was caused by the ‘autonomous’ transition in the styles of reasoning in slave law cases; from reasoning by ‘analogy’ with non-slave law, to ‘categorical’ reasoning in slave cases without reference to non-slave law. See Tushnet-1975, supra note 1 at 121-123. He states that this process is an example of Weber's formal rationality. See Ibid. at 175 -176. See also. Roll, Jordan, Roll, supra note 9 at 25-27.

In his 1981 interpretation, Tushnet still holds to the notion that styles of judicial reasoning determine the results judges reach in individual legal disputes. See Tushnet, supra note 11 at 28-30, 73. But, in addition, he overlays this brand of legal autonomy with a complex Marxist analysis of the law of slavery. See Ibid. at 31. See also, ‘Radical Interpretations,’ supra note 12.

18. See Tushnet, supra note 11 at 30-37.

19. See generally, e.g., Fromm, Erich, ed. Marx's Concept of Man (New York, 1961) 8–18Google Scholar.

20. See Tushnet, supra note 11 at 6-7, 32-33.

21. Tushnet argues that the South was a ‘slave’ society that was based upon the ‘total’ (material) relations between masters and slaves, which vested masters with the right to dominate all aspects of their slave's lives. He contrasts this with northern ‘bourgeois’ society, which was based upon the ‘partial’ relationship between capitalist employers and their employees, according to which the worker was reduced to a commodity or unit of monetary value in the eyes of his capitalist oppressor. See Ibid. But see Manfra, supra note 12 at 389 and Finkelman, supra note 12 at 362 criticizing the historical validity of this analysis of the bourgeois/slave contradiction, as well as Tushnet's failure to adequately define his terminology.

22. See Tushnet, supra note 11 at 32-33. See also, Roll, Jordan, Roll, supra note 9 at 26.

23. See Tushnet, supra note 11 at 6-7.

24. These contradictions appear, in different forms, throughout the book. See Ibid. at 58, 89, 90, and 216-217.

25. See Ibid. at 45-50.

26. 51 N.C. (6 Jones) 245 (1848).

27. Slave owners hired their slaves out to individuals—hirerers—who purchased the use of the slave's labor for a fixed fee and time period. See Roll, Jordan, Roll, supra note 9 at 390-392; Stampp, supra note 2 at 67-72, 414-415.

28. For the origin of this rule see Friedman, Lawrence M., A History of American Law (New York, 1973) 262–264Google Scholar; see also, Horwitz, Morton J., The Transformation of American Law, 1780-1860 (Cambridge, 1977) 202–210Google Scholar. Tushnet notes that not all Southern courts adopted this rule. See Tushnet, supra note 11 at 183-188.

29. See Ibid. at 45-50, see also, Tushnet's discussion of Jourdan v. Patton, 5 Mart. O.S. 615 (La. 1818), Ibid. at 66 70.

30. 13 N.C. 229 (1 Dev. 263) (1829).

31. See Tushnet, supra note 11 at 54-65.

32. A reviewer questions Tushnet's fundamental assumptions about judicial ability and the distinctions between analytically ‘good’ and ‘bad’ judges, suggesting a less ‘narrow view of judicial ability’ that acknowledges ‘mistaken logic’ could, more often than not, be ‘purposeful ambiguity.’ See Hall, see supra note 12 at 855; see also, Finkelman, supra note 12 at 361.

33. See, e.g., Tushnet, supra note 11 at 50-54 for a discussion of the defects Tushnet finds in the jurisprudence of Judge Joseph Lumpkin. See also, Ibid. at 1-5.

34. See Ibid. at 37.

35. See Ibid. at 8. 37-42.

36. See Ibid. at 40.

37. See Ibid. Thus, Tushnet contrasts the categorization, aided by statutory law, of the Mississippi courts. Ibid. at 72-90, with the common law analogical approach of the North Carolina courts. See Ibid. at 90-154.

38. See Ibid. at 40, see also. Ibid. at 90-156, where Tushnet discusses the North Carolina criminal law.

39. See Ibid. at 40.

40. See Ibid. at 90-108, and 72-75.

41. Ibid. at 104. See also, Tushnet's discussion of the cases that ordered specific performance of slaves, by reference to concerns for slave ‘humanity.’ Ibid. at 158-169.

42. This contradiction is apparently based upon the concept of slave master paternalism developed by Eugene Genovese. See, e.g., Roll, Jordan, Roll, supra note 9 at 3-7, 30.

43. See Tushnet, supra note 11 at 183-188.

44. See Ibid. at 208-216.

45. See Ibid. at 215.

46. See Ibid. at 208-216. See also Ibid. at 218-228.

47. Ibid. at 217.

48. Ibid.

49. Therefore, he states:

In this way the social contradictions of Southern society were embedded in slave law, which embraced two distinct and inconsistent sets of ideas. This internal contradiction supplied an opportunity and posed a dilemma. Because two structures were available, any judge could choose to work within that structure which conduced to the result he desired to reach, for reasons external to the law. That is how marginal differences in attachment to slavery were expressed. But at the same time, a judge who selected one structure for one case had several problems. He had to close his eyes to the existence of another equally coherent structure that would have yielded a different result. In addition, he had to face up to the consequences of the choice for later cases: either be bound within one structure by the prior choice or be open to the charge of inconsistency. Neither course was an easy one.

Ibid. at 217-218.

50. See Ibid. at 230.

51. Professor Tushnet does, in his conclusion, sketch his view of a ‘rationalized law of slavery’ that might have emerged had not the Civil War intervened. Tushnet asserts that the bourgeois notion of property would have changed, so that property:

… would no longer be defined as the expression of individual will, subject to regulation only for the most pressing social goals. Instead, property, at first only in slaves but eventually in everything, would be defined as the delegation by society as a whole of certain limited authority to ‘owners,’ who would be charged with exercising that authority only in socially prescribed ways.

Ibid. at 231.

A reviewer asks, with appropriately apparent disbelief, ‘Are we to understand that slavery provided an opportunity for reforms of truly profound dimensions? Apparently so.’ Manfra, supra note 12 at 389.

52. See also, Finkelman, supra note 12, who states that Tushnet's analysis presents ‘a subtle twentieth century version’ of the arguments of the nineteenth century pro-slavery writers who argued that capitalism was so bad to the workers that slaves were better off than their free counterparts in the North. See Ibid. at 362.

53. See Tushnet, supra note 11 at 54-65.

54. See Roll, Jordan, Roll, supra note 9 at 32.

55. See Ibid. at 35.

56. See Ibid. at 36.

57. See Ibid. at 41-49.

58. See, e.g., Scott, Book Review, Challenge 65, 66-67 (May-June 1975) (Hereinafter cited as Scott).

59. See Tushnet, supra note 11 at 62.

60. For a detailed discussion of the legal context and significance of the Mann holdings, see Fede, supra note 1 at n. 226-283.

61. Cf., George Orwell, 1984 (1949).

62. Reviewers criticize Tushnet's writing style, see Finkelman, supra note 12 at 358, his use and analysis of particular cases as evidence; see Ibid. at 359-360; Watson, supra note 12, the ahistorical and undefined nature of the bourgeois/slave contradiction; see Finkelman, supra note 12 at 359, Osgood, supra note 12 at 432-433; Wiecek, supra note 12 at 280-282; Manfra, supra note 12 at 389, and his generally non-chronological and alocal approach to history. See Osgood, supra note 12 at 433-434; Manfra, supra note 12 at 389.

This article, however, confronts Tushnet's analysis upon the fundamental level he himself employs in an interesting critique of Lawrence Friedman's A History of American Law. (An inquiry into our assumptions about the relationship between legal change and social, political, and economic change.) See ‘Critical Review,’ supra note 15. In that essay, Tushnet rejects Professor Friedman's view that specific legal results are the product of society and the economy, and, instead, emphasizes the autonomy of law as well as the role of legal ideology in American history. Although Tushnet recognizes that law is not ‘always autonomous and responsive exclusively to the rationalistic urges of treatise-writers or appellate judges,’ he, nevertheless, states that socio-economic forces only influence large scale legal change, and not specific cases. See Ibid. at 83-84, see also, generally, ‘Marxist Analysis,’ supra note 15.

63. See, e.g., Langum, supra note 1 and Tushnet, supra note 11 at 169-182 for discussions of Judge Lumpkin's pro-master and anti-hirerer views. See, generally, Reid, J.P., ‘Lessons of Lumpkin: A Review of Recent Literature on Law. Comity, and the Impending Crisis,’ 23 William & Mary Law Review 571 (1982Google Scholar); Stephenson, M.W. & Stephenson, D.G., ‘‘To Protect and Defend’: Joseph Henry Lumpkin, The Supreme Court of Georgia, and Slavery,’ 25 Emory Law Journal 579 (1976Google Scholar).

64. See, generally, Starobin, Robert S.. Industrial Slavery in the Old South (New York, 1970) 128–137Google Scholar.

65. See text and notes at notes 96-98 infra, see also, Imperfect Union, supra note 1 at 287-295, citing, Mitchell v. Wells, 37 Miss. 235 (1859)Google Scholar.

66. The ‘law box’ concept is cited by Robert Gordon, who states:

Inside the box is ‘the law,’ whatever appears autonomous about the legal order—courts, equitable maxims, motions for summary judgment; outside lies ‘society,’ the wide realm of the non-legal, the political, economic, religous, social….

Gordon, R., ‘J. Williard Hurst and the Common Law Tradition in American Historiography,’ 10 Law and Society Review 9, 10 (1975Google Scholar) (Hereinafter cited as Gordon).

67. Tushnet's law box analysis can also be criticized because he fails to refer to pre-nineteenth century law, and thus interprets the antebellum law without reference to its historical context. He also ignores relevant statutory material, and therefore inadequately relates appellate case law to its legislative context.

68. I, therefore, accept Professor Nash's invitation for a ‘Non-Marxist’ but ‘radical’ alternative theory of slave law, but can herein only present a suggestive outline, although I do not thereby endorse Nash's terminology. See ‘Radical Interpretations,’ supra note 12 at 274-276.

69. This discussion avoids the debate concerning whether the first blacks brought to the Southern colonies were slaves, or whether and how slavery evolved in seventeenth century Virginia and Maryland. This is, however, an issue of importance concerning the relationship between law and social change. See Jordan, Winthrop D., White Over Black: American Attitudes Toward the Negro, 1550-1812 (Baltimore, 1968) 44-98, 599–600Google Scholar (Hereinafter cited as Jordan); see also, Higginbotham, supra note 1 at 20-60, Stampp, supra note 2 at 21-27.

70. See, generally, Jordan, supra note 69 at 48-52; see also, Scott, supra note 58 at 66-67.

The law of slavery, and the philosophy that underlay that law, was the direct antithesis of the common law which white southerners, like other Americans, inherited from England…. Two mutually contradictory systems of law existed side by side in the antebellum South: the common law and the law of slavery.

Professor Scott's interpretation, therefore, is based upon a rejection of the theory of Marxist writers, such as Genovese and Tushnet, who assert that concepts of individual rights are merely products of capitalism, and therefore not fundamental components of the common law tradition that predated the bourgeois era. See, generally, ‘Marxist Analysis,’ supra note 15 at 102-103.

71. See, generally, e.g., Patterson, supra note 10 at 1-5, 17-34; Stampp, supra note 2 at 141-191.

72. See, e.g., State v. Mann, 13 N.C. 229, 231 (1 Dev. 263, 266) (1829)Google Scholar; Commonwealth v. Turner, 26 Va. 560 (5 Rand. 678) (1827)Google Scholar

73. See Ibid. See also, Patterson, supra note 10 at 4.

74. Stowe, supra note 2 at 233.

75. See, e.g., Stampp, supra note 2 at 197-198; Wheeler, supra note 2 at 190-200; Tushnet, supra note 11 at 12-18.

76. See Stampp, supra note 2 at 201; 2 Hurd, supra note 2 at 152-153, citing the Alabama Code of 1852. See also, Higginbotham, supra note 1 at 20-26, 169-170, 194 and Jordan, supra note 69 at 71-82 for discussions of the development of this legal doctrine in the early slave codes of Virginia and South Carolina.

77. See, generally, Patterson, supra note 10 at 20.

78. Stampp, supra note 2 at 201. Compare, Patterson, supra note 10 at 21-27.

79. See Fede, supra note 1 at n. 142-187, 226-329.

80. See Ibid. at n. 93- 141, 188-225.

81. See Ex parte Boylston, 33 S.C.L. 20 (2 Strob. 41, 42) (1847)Google Scholar.

82. See Stampp, supra note 2 at 208-210. See also, Scott, John Anthony, Hard Trials on My Way: Slavery and the Struggle Against It, 1800-1860 (New York, 1974) 122–124Google Scholar.

83. See Stampp, supra note 2 at 206-216; Hindus, supra note 1 at 129-161. But, see ‘Reason of Slavery,’ supra note 1 at 36-70. See also, Tushnet, supra note 11 at 108-121, and Fede, supra note 1 at note 184 discussing the different standards of mitigation that the courts applied when slaves were accused of killing whites.

84. See ‘Equitable Past?’, supra note 1; ‘Negro Rights,’ supra note 1 at 170 172; ‘Trial Rights,’ supra note 1 at 622-627; Fede, supra note 1.

85. See Tushnet, supra note 11 at 121-139; Flanigan, supra note 1; ‘Trial Rights,’ supra at 628-629; ‘Fairness,’ supra note 1; ‘Negro Rights,’ supra note 1 at 166 170.

86. See ‘Reason of Slavery,’ supra note 1 at 98-184; Howington, supra note 1; ‘Trial Rights,’ supra at 629-637; ‘Negro Rights,’ supra note 1 at 154 166, 172-177. See also, Tushnet, supra note 1 at 188-228.

87. Finkelman, supra note 12 at 363.

88. Sec, generally. Fede, supra note 1 at n. 82-92.

89. See Ibid. at n. 28-53.

90. See Ibid. at n. 54-81.

91. See Ibid. at n. 93-141, 188-225.

92. See Ibid. at n. 215-225, see also. Ibid. at n. 54-75.

93. See Ibid. at n. 1-15, contra; ‘Trial Rights,’ supra note 1 at 622-627; ‘Equitable Past?’, supra note 1; ‘Negro Rights,’ supra note 1 at 170-172.

94. See Fede, supra note 1 at n. 142-187.

95. See Ibid. at n. 226-329.

96. See Tushnet, supra note 11 at 188-228; ‘Reason of Slavery,’ supra note 1 at 98-184; Genovese, supra note 9 at 51-52; Stampp, supra note 2 at 232 236.

97. See, generally, Genovese, supra note 9 at 51; Stampp, supra note 2 at 232, 214-216. Cf., Imperfect Union, supra note 1 (discussing the decline of comity in the South regarding claims to freedom by slaves based upon Northern law).

98. See Tushnet, supra note 11 at 188-228, ‘Reason of Slavery,’ supra note 1 at 98 184.

99. Contra, ‘Reason of Slavery,’ supra note 1; ‘Trial Rights,’ supra note 1 at 629 637; ‘Negro Rights,’ supra note 1 at 154-166, 172-177; see also, ‘Radical Interpretations,’ supra note 12 at 296-314.

100. See Flanigan, supra note 1; ‘Trial Rights,’ supra note 1; ‘Fairness,’ supra note 1; ‘Negro Rights,’ supra note 1 at 166 170.

101. Compare, Hindus, supra note 1 at 131 132, Flanigan, supra at 564; Higginbotham, supra note 1 at 179-186, 257-258, with Ibid. at 57, 185, 254, 257.

102. See, e.g., Tushnet, supra note 1 at 222, ‘Fairness,’ supra note 1 at 82; ‘Negro Rights,’ supra note 1 at 170. For example. Professor Nash argues that the antebellum Southern appellate courts protected black trial rights better than the post-reconstruction Southern courts. See, e.g., ‘Fairness,’ supra note 1 at 64 65. Assuming for the sake of argument that this is in fact true, could not one distinction be the removal from the judicial equation of the master's pecuniary interest in slave trials?

103. See Tushnet, supra note 1 at 135-137.

104. Ibid. at 136 citing, State v. Jim, 48 N.C. (3 Jones) 348 (1856Google Scholar) (emphasis in original).

105. Compare, e.g., Hindus, supra note 1 at 129-131; Flanigan, supra note 1; with, ‘Fairness,’ supra note 1; ‘Trial Rights,’ supra note 1 at 628 629.

106. See One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 88 S. Ct. 1246. 14 L. Ed. 2d 170 (1965)Google Scholar.

107. See Tushnet, supra note 11 at 9.

108. See Wiecek, supra note 12 at 276.

109. For example. Professor Tushnet excludes the case law of South Carolina and Tennessee from his ‘restatement,’ and a reviewer correctly concludes, ‘Tushnet captures theoretical coherence through a serve homogenization of geographical, chronological and judicial variables.’ Hall, supra note 12 at 856.

110. See supra note 2. The twentieth century materials cited in that note, and note 1, also deserve serious consideration.

111. I find this to be a laudable characteristic of the Abolitionists’ work, but Tushnet does not agree. See Tushnet, supra note 11 at 16.

112. See Stowe, supra note 2 at 177-188, 193-198, see also, Hindus, supra note 1.

113. See, e.g., Hurst, J.W., ‘Old and New Dimensions of Research in United States Legal History,’ 23 American Journal of Legal History 1 (1979)CrossRefGoogle Scholar; Gordon, supra note 66.

114. See, e.g., Horwitz, supra note 28.

115. See Higginbotham, supra note 1 at 11.

116. See Ibid. at 13.

117. 60 U.S. (19 How.) 393 (1856).

118. Ibid. at 407; see also, Stowe, supra note 2 at 132.