Annotated Bibliography

Review Reviewed Work(s): The American Law of Slavery, 1810-1860: Considerations of Humanity and Interest by Mark V. Tushnet Review by: Kermit L. Hall Source: The American Historical Review, Vol. 87, No. 3 (Jun., 1982), pp. 855-856 Published by: Oxford University Press on behalf of the American Historical Association Stable URL: https://www.jstor.org/stable/1864319 Accessed: 02-03-2019 18:35 UTC

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United States 855

of pursuing this broad-gauged research project, Curry decided there was sufficient material for a half-century "synthesis" of the experiences of free blacks in these cities, and indeed in the present volume he offers a vast array of data (some trivial or undeveloped) on subjects like black urban welfare, education, religion, and associational activities.

Curry has written first-rate chapters on compara- tive black occupational and residential patterns based on exhaustive examinations of manuscript census and city directory sources in such a clear and cogent manner that nonquantitative historians will find them especially useful. He vividly shows that nearly all "slave area" cities offered free black males greater opportunity to enter artisan trades, a situa- tion he explains by the fact that traditionally, since so many slaves in the South were skilled workers, the presence of free black artisans seemed less threatening to whites than it did in the North. Moreover, these Southern free black artisans pro- vided apprenticeships to the future generation of black males, thus enabling them to enter trades. Curry's chapter on antebellum black residential patterns is similarly outstanding, and nowhere has this reviewer seen a better discussion of exactly what is known and unknown about this complex subject. Curry points out that, although "recognized black districts" existed in all these cities (generally with higher racial concentration in Northern centers than in Southern ones), yet it was the proximity to white neighbors in the antebellum city that was so different from the black experience in the twenti- eth-century city.

Unfortunately, for all its merits, the book ignores topics like black families and households, black leadership and ideology, and the relationship of blacks to the class of wealthy whites. Many topics that are included such as black participation in politics are treated statistically and not very deeply. In Boston where blacks had considerable political opportunity, Curry identifies a black voting bloc that appeared as early as 1800. He notes that in the 1845 election 357 black Bostonians cast ballots but presents nothing about the degree to which this political activism operated either to gain tangible favors or to ameliorate racial discrimination. Like- wise the chapter on associational activities is thin. For example, the author has credited the African Society for Mutual Relief with "inordinate influ- ence" in black Manhattan but does not show how this influence was manifested. He mentions other organizations such as the New York Association for the Political Elevation and Improvement of People of Color, but there is no discussion about how they functioned.

The volume, in spite of its virtues, has an encyclo- pedic and somewhat superficial quality. First and foremost, an in-depth study of the black experience

in one city is a major task, and it is simply impossible for one person to do adequate research on fifteen. In addition, the limited nature of both the quantita- tive and more traditional kinds of black sources for the antebellum period poses serious obstacles for historians, a fact amply demonstrated by at least three studies, published and unpublished, of blacks in Boston before the Civil War. In any event, several discrete, competent studies of individual cities are imperative before historians can turn to the task of making an adequate synthesis.

Nevertheless, Curry's book contains a great deal of useful data for future scholarship.

ELLIOTT RUDWICK

Kent State University

MARK V. TUSHNET. TheAmenrican Law of Slavery, 1810- 1860: Considerations of Humanity and Interest. Prince-

ton: Princeton University Press. 1981. Pp. viii, 262. Cloth $20.00, paper $9.50.

This study breaks important new theoretical ground in the increasingly rich analysis of the American law of slavery. Mark V. Tushnet probes the opinions of antebellum Southern state appelate court judges in order to explain the unresolved legal tension be- tween the slave as human being and as property. Tushnet suggests that the master class struggled to reap the rewards of a bourgeois economy without falling prey to its radical individualism. Southern appellate judges, he concludes, most frequently wrote for internal consumption rather than to rebut the arguments of Northern abolitionists, and they did so with the goal of developing a "categorical approach" to slave law as the best means of "recon- ciling the demands of humanity and interest" (p. 10).

Tushnet contributes significantly to the existing literature by using Marxist theoretical constructs to argue that Southern appellatejudges never resolved the contradiction between sentiment and interest. When confronted with the mixture of slave and market relations in criminal, contract, tort, and manumission cases, these judges authored opinions that fell short of a categorical approach to slave law. He offers a variety of explanations for this failure: the common law system forced judges to labor under the weight of precedent and to fear the implications of slave case decisions for free whites; and the history of slavery was sufficiently brief and the judges' racist predilections sufficiently strong to preclude the development of a coherent body of slave law. But the most important reason was the level of judicial talent-the judges were "merely ordinary thinkers" (p. 7). These jurists, Tushnet concludes, usually lacked the intellectual capacity to

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856 Reviews of Books

manipulate legal categories in ways that would allow a decisive break with bourgeois practices.

Tushnet captures theoretical coherence through a severe homogenization of geographical, chrono- logical, and judicial variables. Of the 191 cases he cites, fully 85 percent are drawn from five jurisdic- tions-Alabama, Georgia, Louisiana, Mississippi, and North Carolina. While insisting that his purpose was to write a "sort of 'Restatement of the Law of Slavery,' " and that the cases he draws on were to be "illustrative and not typical," he does, by the nature of his argument, suggest that, local variants aside, these were representative cases. But representative of what, and in what time period and of what judges? There are, for example, no border state cases (save one from Delaware). Tushnet says that he read all of the cases contained in Helen Caterall's Judicial Cases Concerning American Slavery and the Negro but that he decided to disregard the decisions of the courts of Tennessee and South Carolina because of "the volume of the material" (p. 233). The preponderance of the cases are drawn from the period 1851 to 1861; fully 58 percent come from these years and fully 78 percent from the period 1841 to 1861.

Homogenization produces its most serious casual- ty in the treatment of the judiciary and the judicial process. Analytical prowess is not an exclusive com- ponent of judicial ability; judges often row to their objectives with muffled oars. This narrow view of judicial ability begs the question of the nature of judicial decision making and trivializes judicial mo- tive. Tushnet, for example, may have mistaken lapsed logic (either through commission or omis- sion) for purposeful ambiguity. The author measures the ability of these judges by what they should have done to categorize the law of slavery, a goal that he does not demonstrate they shared.

Because of its narrow conception of judicial abili- ty, its concentration on judicial opinions, and its homogenization of geography and chronology, The Amercan Law of Slavery warrants attention more as an evocation of historical theory than as an arresting exposition of the law of slavery. It is, nonetheless, a vital contribution to the literature.

KERMIT L. HALL

University of Florida

FRED BATEMAN and THOMAS WEISS. A Deplorable Scar- city: The Failure of Industrialization in the Slave Econo- my. Chapel Hill: University of North Carolina Press. 1981. Pp. xiii, 237. $19.00.

"In the economic histories of the South," write Fred Bateman and Thomas Weiss, "manufacturing has occupied the lowest position of all. In the scant literature on the subject, the most frequently cited characteristic of antebellum southern manufac-

turing is its alleged backwardness" (p. 4). Their book, A Deplorable Scarcity, does little to refute this picture of antebellum Southern manufacturing; however, in the process of exploring this backward- ness, Bateman and Weiss provide us with a much firmer base on which to judge the performance of Southern manufacturing.

This book is the product of more than a decade of quantitative research. Whether or not one agrees with the interpretations put forward, any researcher must be impressed with the statistical evidence that Bateman and Weiss have assembled. They have developed a new data source through the construc- tion of two samples drawn from the census manu- scripts of manufactures for each of the census years 1850, 1860, and 1870. The samples and discussions of the methods in which the data was used to empirically test specific issues, are discussed in the appendixes.

Bateman and Weiss's basic quantitative finding is that antebellum Southern manufacturing was profit- able. "The average for all southern manufacturing," they conclude, "was 28 percent in 1860, and 25 percent in 1850" (p. 106). This conclusion seems quite convincing. It raises another question, howev- er, which Bateman and Weiss try to answer: Why did Southern planters not invest in these profitable ventures?

Recent studies of the antebellum South have tended to stress the region's large comparative advantage in cotton agriculture as the reason for the South's negligible attention to manufacturing. The problem with comparative advantage, according to the authors, is that manufacturing was more profit- able than slave agriculture. What to make of this? Having considered several other explanations, Bateman and Weiss reject comparative advantage in favor of another, equally familiar, theme: "The answer appears to lie with the planter class, specifi- cally in its members' attitude toward risk" (p. 160). Southern industry, in other words, did not grow because of a lack of entrepreneurial ability.

The observation that firms that were actually doing business were "profitable" does not mean that most (or even many) Southerners would have been better off investing their capital in slaves and fac- tories rather than in slaves and cotton land. While high returns imply that opportunities for invest- ment in industry existed, it may have been the case that returns in Southern manufacturing were high precisely because the industrial sector was so small. Bateman and Weiss insist that the Southern market could have sustained expansion. Yet their evidence suggests that Southern firms were small, and typi- cally oriented toward a local market. Even a modest expansion of manufacturing might have caused the observed high returns to fall dramatically.

This points up a major difficulty with Bateman and Weiss's argument. "Our work," they admit,

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