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Review: Huebner on Wahl, _The Bondsman's Burden_

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  • David Herr
    This book may be of interest to some alabamahistory subscribers...hope all of you have a great Labor Day weekend...aj wright ... H-NET BOOK REVIEW Published by
    Message 1 of 1 , Dec 31, 1969
      This book may be of interest to some alabamahistory subscribers...hope all
      of you have a great Labor Day weekend...aj wright

      ----------------------------Original message----------------------------


      H-NET BOOK REVIEW
      Published by H-SHEAR@... (August, 1999)

      Jenny Bourne Wahl. _The Bondsman's Burden: An Economic Analysis of the
      Common Law of Southern Slavery_. Cambridge History Studies in American
      Law and Society. Cambridge: Cambridge University Press, 1998. xii + 277
      pp. Tables, notes, and index. $49.95 (cloth), ISBN 0-521-59238-0.

      Reviewed for H-SHEAR by Timothy S. Huebner <Huebner@...>,
      Department of History, Rhodes College

      For many years, scholars outside the fields of history and law have taken
      a keen interest in the law of slavery in the American South. A. E. Keir
      Nash, a political scientist, published a series of important articles on
      the topic in law reviews during the 1970s, in which he examined the extent
      to which concepts of "fairness" and "formalism" informed southern judicial
      decision making in slave cases.[1] Three years ago, William Wiethoff, a
      professor of speech communication, wrote an account of the law of slavery
      that focused on southern judges as "humanists and advocates" in the
      classical tradition, whose courtroom oratory both reflected judicial
      experiences and influenced popular audiences.[2] Jenny Bourne Wahl, an
      economist at St. Olaf College, brings yet another theoretical perspective
      to the topic in her examination of the economics of the common law of
      slavery. Utilizing a data set that includes all of the published southern
      appellate cases that involved slaves (nearly 11,000 cases), Wahl concludes
      that southern courts produced "economically efficient rules that served as
      structural support for the southern way of life" (p. 1).

      Wahl's understanding of "efficient" legal decision making derives from the
      economic theories of Robert Cooter and Daniel Rubinfield, who define
      efficiency as existing when "costs of dispute resolution are minimized,
      legal liabilities go to parties who can bear them at least cost, and legal
      entitlements go to those who value them most" (p. 2). In contrast to many
      historians who have examined slave law, Wahl is concerned with what
      appellate slavery cases reveal neither about the ideology of judges nor
      about the lives or slaves. Rather, she focuses on how legal outcomes and
      incentives influenced the operation of slavery in the context of the
      marketplace. Wahl looks at how legal rules affected slaveowners, as
      buyers, sellers, investors, hirers--as businessmen. In short, by
      examining the "efficiency" of slave law, Wahl investigates whether legal
      decisions fostered the smooth operation of slavery, allowed the
      institution to coexist alongside economic development, and maintained
      social peace. The answers to all these questions, according to Wahl, are
      "yes."

      To make her point, Wahl compares judicial decisions in slave cases to
      developments in other areas of antebellum law. Wahl shows, for example,
      how the law of slave sales followed a different path of development than
      did the law governing the sale of most commodities. While antebellum law
      in general subscribed to the principle of _caveat emptor_, the law of
      slave sales placed much greater responsibility on sellers to guarantee
      their products. Unlike employers of free persons, who could lower the
      wages of or discharge unsatisfactory employees, slaveowners had little
      recourse when duped by sellers. An unsatisfied buyer might have tried to
      hoodwink another unsuspecting purchaser, but the overall result of such
      transactions would have been lower overall prices and a stagnant slave
      market. The great value of slaves and the likelihood of litigation
      regarding slave sales, according to Wahl, caused judges to formulate
      strict rules governing such transactions. They created implied warranties
      (except when flaws were obvious to buyers), required sellers to disclose
      the "defects" in their slaves, and gave incentives for sellers to
      establish explicit warranties. In this respect, Wahl concludes, slave
      buyers received much more protection under law than purchasers of
      livestock.

      In cases involving common carriers, moreover, Wahl finds that courts
      offered a substantial degree of protection to slaveowners when trains,
      boats, and stagecoaches caused injury to bondspersons. With the rapid
      expansion of railroads, trains especially proved dangerous, and numerous
      cases arose involving railroad companies and injury to slaves, livestock,
      and free persons. According to Wahl, southern courts made carriers
      responsible for nearly all injuries to livestock, many injuries to slaves,
      some injuries to free passengers, and almost none to other free persons.
      Livestock, lacking the mental capacity to escape danger, received the most
      legal protection, while free persons received the least. Courts held
      common carriers liable in many cases involving slaves, valuable
      commodities who possessed the intelligence to attempt avoiding injury.
      Still, courts hesitated to hold common carriers liable when slaves used
      them to escape to freedom. "As a result," Wahl argues, "the judiciary
      helped conserve slave property values as well as protect the expansion of
      public transportation" (p. 100). Again, judges formulated efficient
      legal rules that carefully balanced social costs and benefits.

      Wahl provides a fresh theoretical perspective on the law of slavery, and
      her work will no doubt prove most useful to historians of slavery and the
      southern economy. At times, however, Wahl pushes her argument about
      efficiency a bit too far and confuses legal protection of slaveholders
      with legal protection of slaves. She makes bold claims in the
      introduction that slaves benefitted from the judiciary's concern with
      promoting the smooth operation of the system. "In a sense," she writes,
      "the apologists for slavery were right: Slaves fared better than free
      persons in some circumstances because someone powerful had a stake in
      their well-being" (p. 25). But in the above examples--cases involving
      sales and common carriers--slaveowners rather than slaves reaped the most
      from judicial decisions. Her claim that courts protected slaves proves
      most accurate with regard to slave-hiring cases and criminal cases
      involving excessive cruelty, and on the latter issue she provides much
      evidence that challenges Michael Hindus and others who have argued that
      courts virtually never protected blacks in criminal trials.[3] In the end,
      however, whatever beneficence slaves gained at the hands of judges did not
      undermine or harm in any way the perpetuation of the institution. Quite
      to the contrary, Wahl contends, the common law helped undergird slavery by
      "efficiently accommodat[ing] the needs of a slave-holding society" (p.
      176).

      Wahl's most innovative finding, a sub-theme of the book, is that the law
      of slavery provided a series of precedents that courts ultimately applied
      to commercial, employment, and accident cases. While most historians have
      examined slave law in order to find out more about life in the Old South,
      Wahl demonstrates that the law of slavery actually had a long-term impact
      on the evolution of legal doctrine. Cases involving hired slaves, for
      example, served as precedent to reform twentieth century employment law by
      making employers more responsible for accidents in the workplace.
      Similarly, courts relied upon slave law precedents in subsequent cases
      involving common carriers, which established the foundation for modern
      personal injury law.

      In short, Wahl brings new insights to the study of slave law. Her three
      tables documenting the numbers, dates, and types of cases heard in
      southern state courts will prove useful to any scholar interested in the
      law of slavery, and her comprehensive approach makes this work stand out
      from other studies of slave law that confine themselves to particular
      topics, times, and places. Still, historians of slavery and the American
      South will find much with which to take issue here. Wahl is uninterested
      in portraying slaves as agents, only as commodities that the litigants and
      judges acted upon; southern ideology and culture--religion, honor,
      paternalism--make almost no appearances in this book; the impact that
      individual judges had on formulating slave law receives scant treatment;
      and economic interest, not surprisingly, plays the starring role as the
      driving force behind legal decision making.

      Historians who read Wahl's book may wonder whether the author is even
      asking the right questions; for that reason, historians should take a
      look. Like others outside of the historical and legal profession who have
      examined the law of slavery, Wahl offers a fresh perspective on an
      important topic.


      Notes

      [1]. See, for example, A. E. Keir Nash, "Fairness and Formalism in the
      Trials of blacks in the State Supreme Courts of the Old South," _Virginia
      Law Review_, 56 (1970), 64-100; idem, "Reason of Slavery: Understanding
      the Judicial Role in the Peculiar Institution," _Vanderbilt Law Review_,
      32 (1979), 7-218.

      [2]. William E. Wiethoff, _A Peculiar Humanism: The Judicial Advocacy of
      Slavery in High Courts of the Old South, 1820-1850_ (Athens: University
      of Georgia Press, 1996).

      [3]. Michael Hindus, "Black Justice under White Law: Criminal Prosecution
      of Blacks in Antebellum South Carolina," in Eric H. Monkkonen, ed.,
      _Crime and Justice in American History: Courts and Criminal Procedure_
      (Westport, Conn.: Meckler, 1991); Andrew Fede, _People Without Rights:
      An Interpretation of the Fundamentals of the Law of Slavery in the U.S.
      South_ (New York: Garland, 1992).

      Copyright (c) 1999 by H-Net, all rights reserved. This work
      may be copied for non-profit educational use if proper credit
      is given to the author and the list. For other permission,
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      ___________________________________
      David Herr
      University of Illinois Department of History
      309 Gregory Hall; 810 S. Wright St.
      Urbana, Il 61801

      d-herr@...
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