Race and the Law of Personal Status

Some of the best writing in the history of nineteenth-century legal culture has involved race relations. Thomas Jefferson Notes on the State of Virginia, edited by William Peden ( 1955), remains a valuable source. Persons and Masks of the Law ( 1976), by John T. Noonan Jr., assesses the moral conflicts generated by a commitment to the rule of law in the name of racially based slavery. A similar tack was taken by Robert M. Cover, Justice Accused: Antislavery and the Judicial Process ( 1975). Cover emphasized that the peculiar institution was permitted to continue because the best judicial minds of the nineteenth century simply refused to acknowledge in action that it was a moral evil. A good general study of slavery with close attention to its "legal" character is Kenneth M. Stampp, The Peculiar Institution: Slavery in the Ante-bellum South ( 1956). It can be usefully supplemented by Mark V. Tushnet, The American Law of Slavery ( 1981). Tushnet's Marxist interpretation of the legal framework of slavery, while intriguing, is also insensitive to the historian's most important concern: change over time.

The study of the American law of slavery has become increasingly rich, both in its treatment of slaves and fugitives. Some of the most provocative work has been undertaken by Thomas D. Morris, who has published a series of articles that extend our understanding of slave law into matters of tort, contract, and credit. See, for example, "'As If the Injury Was Effected by the Natural Elements of Air, or Fire,': Slave Wrongs and the Liability of Masters," Law and Society Review 16 ( 1981- 1982). Paul Finkelman, Judith Schaffer, and Andrew Fede have also done much to expose the ways in which the business law of slavery became a distinctive feature of the

-370-

South's legal culture. Their efforts are contained in a special issue of The American Journal of Legal History 31 ( 1987). Fugitive slaves have also received increasing attention, so much so that the historian John Reid has concluded that one of the few areas of American legal history where we have a comprehensive body of understanding has to do with fugitive slavery. See, in particular, his essay, "The Lessons of Lumpkin," The William & Mary Law Review 23 ( 1982). Paul Finkelman has contributed significantly to this important new body of scholarship, and his An Imperfect Union: Slavery, Federalism, and Comity ( 1981) is especially valuable, although his counterfactual arguments remain controversial. The great work on the law of fugitive slavery and its relationship to the politically destructive tensions that divided North and South is Don E. Fehrenbacher , The Dred Scott Case in American Law and Politics ( 1978). Fehrenbacher blends themes of public and private law while displaying great sensitivity to the personal and political dynamics on the Supreme Court.

The antislavery and proslavery positions, both of which figured in the legal definition of slavery, and hence, the personal status of slaves, have been the subject of intense scrutiny. The varied constitutional assumptions and political goals underlying the efforts of the abolitionists have been cogently dissected by William M. Wiecek, The Sources of Antislavery Constitutionalism in America, 1760-1848 ( 1977). Wiecek has also shown that the American law of slavery and the legal debate about abolitionism were different from their English counterparts. See Wiecek, "Slavery and Abolition before the United States Supreme Court, 1820-1860," The Journal of American History 65 ( 1978). The entire debate about the legal character of slavery (was it harsh? mild? in between?) is covered in A. E. Keir Nash, "Reason of Slavery: Understanding the Judicial Role in the Peculiar Institution," Vanderbilt Law Review 32 ( 1979). A particularly valuable case study of the abolitionists' response to the law and slavery is Howard Jones , Mutiny on the Amistad: The Saga of a Slave Revolt and Its Impact on American Abolition, Law, and Diplomacy ( 1987).

Less attention has been devoted to the legal status of the free black and other racial minorities, notably native Americans and Chinese. Leon Litwack North of Slavery: The Negro in the Free States, 1790-1860 ( 1961) remains an invaluable source for legal historians. Hyman and Wiecek, Equal Justice under Law, contains a useful discussion of the status of native Americans, free blacks, and the Chinese, and it provides an especially good discussion of the way in which changes wrought by the Fourteenth Amendment had potentially enormous consequences (most of which were not realized until the twentieth century) for all three groups. Donald G. Nieman's To Set the Law in Motion: The Freedmen's Bureau and the Legal Rights of Blacks, 1865-1868 ( 1976) is valuable for the treatment accorded newly freed blacks in the South. Robert J. Kaczorowski , The Politics of Judicial Interpretation: The Federal Courts, Department of Justice and Civil Rights 1866-1876 ( 1985), explains the important role of the federal bench and the Department of Justice in the collapse of black rights in the postbellum South. C. Van Woodward's classic, The Strange Career of Jim Crow, 2nd Rev. Ed. ( 1966), remains useful for its analysis of the origins of legal segregation in the South, but it should be supplemented by J. Morgan Kousser , The Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One Party South ( 1974). Also valuable as a case study is Charles Lofgren, The Plessy Case: A Legal-Historical Interpretation ( 1987). William Cohen, "Negro Involuntary Servitude in the South, 1865-1940: A Preliminary Analysis," The Journal of Southern History 42 ( 1976), provides an excellent account of the legal measures that kept most Southern freedmen in a status of quasi peonage.

The legal history of the Chinese in America is only now being written, but John Wunder has made an important start. See, for example, "The Chinese and the Courts in the Pacific Northwest: Justice Denied," Pacific Historical Review 52 ( 1983); and "Chinese in Trouble: Criminal Law and Race on the Trans-Mississippi West Frontier," The Western Historical Quarterly 17 ( 1986).

-371-

Date: 2015-01-29; view: 847