Double Character: Slavery and Mastery in the Antebellum Southern Courtroom 9781400823840

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DOUBLE CHARACTER

UBLE CHARACTER SLAVERY AND MASTERY IN THE ANTEBELLUM SOUTHERN COURTROOM

ArielaJ. Gross P R I N C E T O N U N I V E R S I T Y P R E S S • P R I N C E T O N AND O X F O R D

COPYRIGHT © 2000 BY PRINCETON UNIVERSITY PRESS PUBLISHED BY PRINCETON UNIVERSITY PRESS, 41 WILLIAM STREET, PRINCETON, NEW JERSEY 08540 IN THE UNITED KINGDOM: PRINCETON UNIVERSITY PRESS, 3 MARKET PLACE, WOODSTOCK, OXFORDSHIRE OX20 1SY ALL RIGHTS RESERVED

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DATA

GROSS, ARIELA JULIE. DOUBLE CHARACTER: SLAVERY AND MASTERY IN THE ANTEBELLUM SOUTHERN COURTROOM / ARIELA J. GROSS. P. CM. INCLUDES BIBLIOGRAPHICAL REFERENCES AND INDEX. ISBN 0-691-05957-8 1. SLAVES—LEGAL STATUS, LAWS, ETC.—SOUTHERN STATES—HISTORY— 19TH CENTURY. 2. SLAVERY^LAW AND LEGISLATION—SOUTHERN STATESHISTORY—19TH CENTURY. 3. COURTS—SOUTHERN STATES—HISTORY— 19TH CENTURY. I. TITLE. KF482.G76 2000

342.75'087—dc21

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THIS BOOK HAS BEEN COMPOSED IN SABON BOOK MODIFIED TYPEFACE THE PAPER USED IN THIS PUBLICATION MEETS THE MINIMUM REQUIREMENTS OF ANSI/NISO Z39.48-1992 (R1997) PERMANENCE

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CONTENTS

ix

ACKNOWLEDGMENTS

Introduction

3

ONE Court and Market

22

TWO Honor and Dishonor THREE Slaves' Character

72

FOUR Masters' Character FIVE Body and Mind Epilogue

47

98 122

153

Appendix Note on Sources and Methods NOTES

167

BIBLIOGRAPHY INDEX

251

231

159

ACKNOWLEDGMENTS

I

HAVE incurred many debts, both intellectual and personal, in the preparation of this book. A number of wonderful teachers in graduate and law school at Stanford University helped me in the first years of this project. I offer my deepest thanks to George Fredrickson, who directed my dissertation, for his encouragement, his insights, and his example. Rarely is a brilliant scholar and thinker such a humane teacher and thoroughly decent human being. Robert Gordon's wit, erudition, generosity, and critical sensibility have made him an invaluable mentor, reader, and adviser. Janet Halley's probing questions and keen perceptions helped me to clarify muddy thinking at every stage in this process. Jack Rakove read the dissertation with a sharp critical eye. Al Camarillo, Estelle Freedman, Tom Grey, Mark Kelman, Deborah Rhode, Kathleen Sullivan, and Bob Weisberg were challenging and inspiring teachers. For unfailing good fellowship and rare intellectual and personal support, as well as for their readings of countless drafts, I thank Karen DunnHaley, Leslie Harris, Wendy Lynch, Renee Romano, Wendy Wall, and Alice Yang-Murray. Several eminent scholars gave me crucial advice and encouragement at an early stage in the project and continued to be supportive throughout: Carl Degler, Terry Fisher, Winthrop Jordan, and Patricia Williams. I also owe thanks to a number of generous colleagues who have shared ideas, read chapters in draft, or helped me with research: Scott Altman, Michelle Aronowitz, Sharon Block, David Cruz, Pete Daniel, Ron Davis, Mary Dudziak, Harry Elam, Paul Finkelman, Catherine Fisk, Ron Garet, Howard Gillman, Tom Green, Tom Grey, Sam Gross, Dirk Hartog, Walter Johnson, Tony Kaye, Andrew Kull, Tom Lyon, Chris Morris, Nell Painter, Jeannie Rhee, Tom Russell, Elyn Saks, Clyde Spillenger, Steven Stowe, Chris Waldrep, and colleagues who participated in faculty workshops at USC Law School, Yale Law School, and Princeton University. Laura Edwards, Leslie Harris, Hilary Schor, and Nomi Stolzenberg read and commented insightfully on the entire manuscript. I would also like to thank Peter Bardaglio, Kathleen Brown, Jonathan Bush, Gwendolyn Hall, Rachel Moran, the late Armstead Robinson, and Mark Tushnet, whose comments on presentations at several conferences provoked me to think harder about my project. Kenneth Greenberg and an anonymous reviewer for Princeton University Press read the manuscript and offered many cogent and helpful criticisms. Brigitta van Rheinberg and Lauren Lepow of Princeton University Press also deserve thanks for their advice and editing.

X

ACKNOWLEDGMENTS

During the research for this book, I had a second home in Natchez, Mississippi. My greatest debt is to Mimi and Ron Miller, the powerhouses who run the Historic Natchez Foundation. Besides being a fount of knowledge about Natchez and Southern history in general, they make the phrase "Southern hospitality" a living, breathing reality. Mike Willey generously photographed documents for me, and entertained my daughter at the same time. Thanks also to Ethel Banta, Alma Carpenter, Ron Davis, and Joyce Broussard-Hogan. Dallas Clement, Gwen Hall, John Hammond Moore, and Mike Wall shared their homes with me during my research trips, and Peter Caron, Gwen Hall, and Tony Kaye shared data and leads in the archives. Archivists have gone out of their way to help me locate the things I needed. I am especially grateful to Marie Windell at the University of New Orleans, Ann Webster at the Mississippi Department of Archives and History, Norwood Kerr at the Alabama Department of Archives and History, and Carolyn Hamby at the South Carolina Department of Archives and History, all of whom were generous with their time and advice on tracking down hard-to-find cases. I would like to thank the following institutions for research funds and financial support: the American Historical Association, for the LittletonGriswold Research Grant; the Center for Research on Legal Institutions at Stanford Law School, and the Stanford Humanities Center for research fellowships; and the University of Southern California Law School and the Zumberge Research and Innovation Fund of the University of Southern California for generous financial support. The tuition and stipend provided by the Foreign Language Area Studies Fellowship of the Department of Education and the University Fellowship of Stanford History Department made my graduate studies possible. The Stanford Humanities Center gave me something that allowed me to begin the writing of this study in the midst of law school: a room of my own. The University of Southern California Law School has given me every kind of assistance necessary to complete this project. I would like to thank in particular Dean Scott Bice and Associate Dean Scott Altman for their unfailing encouragement, generous research leaves, and accommodation of every request. Michelle Jones provided excellent secretarial services, and David Alverson, Jason Hamm, and Laura Premi contributed crucial research assistance. Thanks also to Eric Siemens for brilliant jacket design work. An earlier version of chapter 3 was published under the title "Pandora's Box: Slave Character on Trial in the Antebellum Deep South" in Yale journal of Law and the Humanities 7 (1995): 267-317; another incarnation of it appears in Slavery and the Law, ed. Paul Finkelman (Madison, Wis.: Madison House, 1997). A version of chapter 4 appeared in Cardozo Law Review 18 (1996): 263-99, under the title " 'Like Master, Like

ACKNOWLEDGMENTS

xi

Man': Constructing Whiteness in the Commercial Law of Slavery, 18001861." My thanks to the editors for permissions to reprint. I owe a special thanks to my mother, Shulamith Gross, who furthered this project in two important ways that go far beyond the typical maternal support. In the winter of 1995, she accompanied me to the Deep South for two weeks to care for her seven-week-old granddaughter while I worked in the archives. The following summer, she spent nearly a month working with the data I collected from Adams County, running statistical tests to explain the outcomes in the cases I studied. David Gross, Sheva Gross, and my late grandfather, Bertram Gross, lent me support and encouragement. Raphaela and Sophia Gross Goldman, both of whom were born during the course of writing, gave me a reason to hurry up and finish. Finally, Jon Goldman made this book possible through his unfailing good humor, coparenting, critical reading, and difficult questions. In more ways than I can say, I am so lucky.

DOUBLE CHARACTER

INTRODUCTION

T

HOMAS READE COBB, the young reporter for the Georgia Supreme Court, managed to complete only one volume of his projected two-volume treatise on the law of slavery before he met an untimely death in the Confederate Army. In the preface to that volume, he explained that slaves in the American South had the "double character" of person and property under the law; therefore, the first part of his work would be devoted to slaves "as persons," and the second to slaves "as property."1 Modern historians have also made use of this dichotomy as an organizing principle. The leading work on the history of Southern slavery and law is divided into sections on "slaves as property" and "slaves as persons" as well, roughly corresponding to a split between civil and criminal law.2 By implication, slaves under Southern law had the character of persons in criminal cases and that of property all the rest of the time.3 But there are other ways to understand the "doubleness" of slaves' character than in terms of a fissure in Southern law. By looking at the moment when slaves were most property-like to white Southerners—at the moment of sale or hire—this study will explore the paradoxes that arose from slaves' double identity as human subjects and the objects of property relations at one and the same time. In a variety of civil disputes, courts attempted to treat slaves as they treated horses or machines. When slave buyers felt their newly acquired human property to be "defective" physically or morally, they sued the seller for breach of warranty—just as they would over a horse or a piece of machinery. Similarly, slave owners sued hirers, overseers, and other white men for damage to their slave property when they beat or neglected slaves, and slaveholders disputed over possession of slaves as they would over other chattel. Yet in these mundane civil cases, the parties in the courtroom brought into question, and gave legal meaning to, the "character" as well as the resistant behavior of enslaved people who persisted in acting as people. I do not mean to suggest a naive belief that Southern judges, or other white participants in the courtroom, suffered moral qualms at treating people as things, nor even that contests over character meant a recognition of slaves' personhood in its moral dimensions, but rather that the very logic and structure of disputes about property claims pushed forward and made white Southerners confront the character of slaves in challenging ways. Of course, horses too could run away or be recalcitrant, leading one historian to suggest that slaves influenced the law merely the way horses influence the law.4 Some legal historians have explained all contradictions

4

INTRODUCTION

in slavery law by slaveholders' efforts to shape the law instrumentally to serve their own economic interests, or by the tendency of the common law to approach economic efficiency.5 Yet in civil disputes such as warranty suits, slaves themselves both directly and indirectly influenced the law far more than horses ever could, for two reasons. First, putting slave character on trial allowed slaves' moral agency to intrude into the courtroom, which raised difficulties for legal transactions dealing with slaves in the same manner as other forms of property. "Double character" suggests deceit, trickery, the presentation of a false face. Deceit was one of the few tools available to slaves in the effort to manipulate their worlds and their fates, and many of these legal disputes were shaped by whites' fear of slaves' trickery. Second, these disputes, by forcing "the law" to consider slaves' character, also challenged slaveholders' self-conception as honorable masters. Thus "double character" took on another dimension in trials involving slaves: the double character of masters and slaves. These cases mattered to white Southerners because their self-understandings as white masters depended on their relationships to black slaves; putting black character on trial called white character into question as well. Southern culture also had a "double character." On the one hand, the plantation South was a world governed by conceptions of honor. White men of the Deep South understood their own place in society and that of others according to their ability to participate in an honor culture. They prized their reputation as honorable men, and they vowed to defend their honor against all slights. Yet, simultaneously, increasing numbers of men, and some women, participated in a vigorous commercial market, whose values seem at first glance contradictory to those of the honor culture. Despite their apparent incompatibility, both commercial and honorific practices and values were sustained and knitted together by slavery, the central institution of the Deep South. Indeed, slaves themselves saw commerce and the honor culture as inextricably linked, with the marketplace providing the arena for many of the rituals of white honor and black dishonor that most deeply defined slavery. Going to the core of what slavery meant to them, upon freedom, many sang, Tain't no mo' sellin' today, Tain't no mo' hirin' today, Tain't no pullin' off shirts today, It's stomp down freedom today.6 In celebrating the end of the demeaning practices of the market, newly freed slaves suggested that the essence of slavery's dishonor was making people into objects of commerce. This study travels into the courtrooms of Deep Southern counties, where disputes over the bodies, minds, and character of enslaved people implicated both commerce and honor.

INTRODUCTION

5

Most historians who have written about the "private" law of slavery— disputes involving slaves as property—have focused on the opinions of appellate courts and have discussed the relationship between legal doctrine and the Southern economy, rather than local trials and local culture.7 These studies have called attention to the dilemmas antebellum Southern high court judges faced in applying legal rulesfirstdeveloped by Northern and English courts to cases involving slaves.8 Local trials, however, reveal another sense of the "double character" of the law: the conjunction of rules handed down by high courts with legal understandings developed by ordinary people. Rules of evidence and the language of legal argument shaped local disputes, but so did community norms. The stories of trials involving slaves could be read as the triumph of custom over law, in which social practices overwhelmed formal legal rules. Yet such a view depends on an overly narrow definition of "law." The litigation of commercial disputes involving slaves also demonstrates that law as it is actually experienced is created by a variety of lawmakers: not only by judges and legislators, but by the litigants, witnesses, and jurors in the courtroom.' Trials also illuminate the double character of white Southerners' racial ideology. At the day-to-day working level, slave masters had no choice but to deal with slaves as people in some respects; to acknowledge that they had preferences, volition, personality, relationships, families— whether or not their masters chose to override all of these by force.10 Thus in witnesses' testimony as in private slave lists, descriptions of slaves went far beyond the simple "Sambo" and "Nat Turner" stereotypes; while they may not have recognized the full range of human personality, they did include comments on slaves' intelligence, playfulness, and pride. On the other hand, the second quarter of the nineteenth century saw the development of a highly articulated, stylized racial ideology used in the defense of slavery as a positive good. As legal historians have shown, appellate opinions were part of this highly articulate, outward-looking proslavery defense; judges knew that abolitionists in the North scoured the published reports to find damning evidence of the inhumanity of slavery.11 It was quite possible for these two discourses of racial ideology to coexist: a white slaveholder could believe on one level that all black people were children; at the same time in his daily life he could expect his slave blacksmith to complete very skilled work, and he could get angry when the work was not completed. What is remarkable about trials of civil disputes is that they represent the moment of confrontation between these two discourses. These disputes arose from ordinary incidents in daily life, where white people were dealing with a fuller dimension of their slaves' personalities. In the courtroom, however, they came up against the highly stylized discourse of the color line. Trials, then, were an important arena

6

INTRODUCTION

for the discovery of the double character of both racial ideology and law in the antebellum South. This study attempts to draw on the insights and methods of several disciplinary approaches to legal history. Like traditional intellectual historians of legal thought, I am centrally concerned with questions of ideology and, in particular, with the relationship between law and racial ideology. I have also followed the lead of critical legal historians who have focused attention on the constitutive role of law in culture.12 From social history and law-and-society studies, I inherited a commitment to archival research and quantitative analysis of trial-level data. In addition to readings of all the available local trial records of cases appealed to the state supreme courts of the Deep South, this study is based on a very large sample of unappealed trials from Adams County, Mississippi.13 These cases, as well as all the participants for whom I was able to locate information in manuscript census records, personal tax rolls, and land deed records, formed two large databases for analysis. Finally, legal anthropology taught me to approach the courtroom as an arena in which ordinary people experienced and shaped legal meanings, and to view law as "one of the great cultural formations of human life."14 Diaries, letters, travelers' accounts, newspapers, ex-slave narratives, and other documents allowed me to open a window on the trial as an important cultural event in people's daily lives. The five states surveyed constitute the region known today as the "Deep South," or the "Black Belt." These states were united by the culture and economy of the cotton plantation. They held the largest slave populations by the second quarter of the nineteenth century; the Deep Southern states were the greatest slave importers in the domestic trade. By focusing on the states with large numbers of slaves and slave buyers, as well as large plantations, not only do we find vigorous litigation over slave sales, but we observe a relatively coherent planter culture and ideology. At the same time, these states encompass both the "Old South" of South Carolina, and the newer areas of the Southwest, such as Mississippi. The trials were widely distributed: from thirty-four counties in Georgia, thirty in Alabama, twenty-five in South Carolina, and eighteen in Mississippi, approximately mirroring the distribution of slaveholding. The study also includes both common law regimes and the civil law system of Louisiana. Of the five states, Louisiana had by far the most litigation on these subjects at the Supreme Court level; 237 out of 503 cases came from Louisiana. Because of Louisiana's codified consumer protections for slave buyers, warranty litigation was extremely common and generated many of the examples in this study.15 However, despite Louisiana's unusual Roman law heritage and its Civil Code, its cases ex-

INTRODUCTION

7

hibit struggles over the character of slaves and masters remarkably similar to those in common law states.16 Cases appealed to high courts were more representative of the typical trial than one might imagine today. All five state supreme courts were required to hear every appeal that came before them, unlike today, when only a small fraction of appeals are accepted for a hearing. There were no intermediate courts of appeal to filter cases out. A comparison of the five-state sample with the Adams County sample of unappealed cases revealed no important differences; appealed suits did not even involve larger amounts of money, nor were the appellants who took cases to a higher court themselves wealthier than other plaintiffs.17 Furthermore, a small sample from two rural South Carolina counties suggests that Adams County was not an unrepresentative county despite its significant population of wealthy planters.18

This study opens in Adams County, Mississippi, on St. Catherine's Road into Natchez, which ran past the slave market to the courthouse. Using Adams County as an example, but drawing on research from throughout the Deep South, chapter 1 describes "Court Week," the local and legal culture of circuit courts, and the slave economy in which lawsuits originated. Then, entering the courtroom itself, it follows a typical trial from beginning to end, with a discussion of juries, witnesses, and litigants, based on quantitative data from Adams County. The chapter closes with a discussion of the silent subjects of trials, the slaves themselves, their awareness of the role of law in their lives, and their ability to influence its outcomes. Chapter 2 argues that we can best understand civil disputes over slaves by viewing them within the context of a culture of honor. The chapter explores the relationship among honor, commerce, and law in Southern society. An in-depth discussion of one case from Adams County reveals the way legal disputes became affairs of honor between white men, and vice versa. Then the chapter turns to the dishonoring of slaves in litigation: both the treatment of their bodies and the disrespect of their words through the ban on slave testimony. Another case study from Adams County demonstrates the dishonor of slaves and free blacks through the erasure of their stories from the legal and historical record. The chapter concludes by discussing the difficulties courts faced in silencing slaves completely, and the ways that slaves' agency intruded into the courtroom, throwing their masters' honor into question, when slaves' words were repeated in the courtroom.

8

INTRODUCTION

Chapters 3 and 4 examine the portrayal of slaves' and masters' character in the courtroom. Civil disputes brought forth many of the racial theories that characterized Southern culture, and helped to define which images of black men and women would prevail in the legal arena. Parties came into the courtroom telling various stories about slaves' character, but the courtroom process favored certain stories over others. For example, when the slave at issue was a woman, the range of acceptable stories narrowed dramatically. By privileging particular slave personae for both men and women, the law established racial meanings, not only through specific stereotypes of black people, but by painting a picture of black moral character development that differed from Southern white accounts of white moral character development. Chapter 3 considers how legal actors sought to erase slaves' moral agency from their explanations of slaves' behavior. But, despite these efforts, witnesses continued to report on slaves who thought and acted for themselves, even deceiving whites. Chapter 4 explores the ramifications for masters and mastery of litigating slave character. Because the most common theories of black character emphasized its mutability and dependence on the influence of white men, these cases inevitably shone a spotlight on the character of white "masters"—including owners, hirers, and other supervisors of slaves. Furthermore, tort cases set judicial standards for the care of slaves by parties other than the slave owner. These disputes took on significance in a culture imbued with notions of honor that depended on white gentlemen's mastery of social inferiors. Commercial trials became an arena for proving mastery and honor, as well as denying the market basis for those values. Chapter 5 extends the argument about slaves' and masters' character to the most routine conflicts involving slaves, those that concerned illness— whether a slave was "sound in body and mind" at the time of sale or hire. Despite the mundane nature of these cases, they, too, put white and black character on trial. Buyers, sellers, and hirers read slaves' bodies for signs of character; at the same time, their own characters were judged on the basis of their ability to read slaves' bodies. Doctors established themselves as intermediaries between master and sLve, and between "the law" and both master and slave, by asserting their expertise in all matters concerning slaves' bodies. Historians have chronicled the role of physicians in creating Southern discourses of biological racism; in the courtroom, medical and legal discourses merged to brand slaves as racially distinct, "other," and inferior to whites. Yet efforts to "medicalize" the character traits of slaves, and to assert professional control over their bodies, were not wholly successful. For doctors, in their diagnosis and treatment of slaves, and hence in their testimony about diagnosis and treatment, relied on slaves' own words and actions. Thus warranty suits over sick slaves

INTRODUCTION

9

forced courts to consider slaves' own constructions of their conditions, and allowed slaves to influence the process by "feigning" illness. The book concludes with a brief discussion of post-Civil War legal proceedings of two sorts. Commercial disputes involving slaves continued to be litigated and appealed throughout the 1860s and 1870s, some of them with novel legal arguments invoking emancipation as grounds for the cancellation of debts owed by slave purchasers. Despite the efforts of Republicans in state constitutional conventions to relieve debts based on "slave consideration," most courts declared that commerce demanded these cases be decided on exactly the same terms they had been in the decades before. In a very different legal forum, ex-slaves speaking before the Southern Claims Commission and the U.S. Court of Claims used their first opportunity to have their voices heard in legal testimony to cast aspersions on the loyalty claims of their former masters.

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