Law and Race Commons^™

“Like Master, Like Man”: Constructing Whiteness In The Commercial Law Of Slavery, 1800-1861, Ariela J. Gross

Cardozo Law Review

In 1836, Leonard Wideman bought a slave named Charles from Jonathan Johnson, paying in part with a $100 note. Not long after, Johnson sued Wideman in the Circuit Court of Abbeville, South Carolina for failing to pay his note. In defense, Wideman argued that he should not have to pay Charles's price because Johnson had fraudulently represented Charles to be sober, honest, and humble, when, in fact, he was insubordinate, vicious, a drunkard, and a runaway. The trial turned not only on Charles's character, but also on the character of his masters: Johnson, Wideman, and others who had previously owned …

Roman Slave Law: An Anglo-American Perspective, Alan Watson

Cardozo Law Review

The most influential secular system of law in the West has been Roman private law. This is true even of its slave law, which was received not only in states of Europe where slavery survived, but also in European colonies in America, whether those of Spain, Portugal, France, or the Dutch West India Company. Though slavery had died out in France and the Dutch Republic, when slavery appeared in the colonies, recourse was had above all to Roman law.

The First Slave (And Why He Matters), Jonathan A. Bush

Cardozo Law Review

This Article has two purposes. The narrower, straight historical purpose is to explore in further detail the status of blacks in the earliest years of Britain's colonies in the New World. The second, more legal aim is to explore what is, for many of us, still the hardest question in American legal history: namely, to understand the route by which slavery came to be legal in the early seventeenth century, in a culture that had long rejected unfree status and that seemed to retain that view.

Hegel’S Slaves, Blackstone’S Objects, And Hohfeld’S Ghosts: A Comment On Thomas Russell’S Imagery Of Slave Auctions, Jeanne L. Schroeder

Cardozo Law Review

Thomas Russell's wonderful paper A New Image of the Slave Auction is an example of how the best empirical work can result in conclusions that are so obviously "right" that they risk being mistaken as obvious. His paper serves as an important warning against a recurring problem in legal, as well as other scholarship: Picture thinking-in the sense of an unconscious (and as a result, unquestioning and uncritical) acceptance of familiar, traditional, comfortable imagery-so often blinds us.

“Under The Present Mode Of Trial, Improper Verdicts Are Very Often Given”: Criminal Procedure In The Trials Of Slaves In Antebellum Louisiana, Judith Kelleher Schafer

Cardozo Law Review

When Louisiana became an American possession in 1803, a primary concern of the new territorial government and its inhabitants was what kind of law would be most appropriate to provide stability and maintain order in a heterogeneous population composed of free persons of French, Spanish, and American ancestry, those of African origin, free and slave, American Indians, and various combinations of these cultures and races.

Estranged Fruit: The Reconstruction Amendments, Moral Slavery, And The Rearticulation Of Lesbian And Gay Identity, E. Nathaniel Gates

Cardozo Law Review

David A.J. Richards has composed a thoughtful and suggestive narrative that centers on the excavation of the antislavery constitutionalism forged by a small, but arguably influential, group of antebellum abolitionist feminists. Central to his narrative, and to the constitutional theses of the abolitionist feminists, is the concept of "moral slavery" which, on Richards' account, constitutes a crucial element of the hermeneutic background essential to a proper interpretation of the Reconstruction Amendments. According to Professor Richards, an understanding of the figure of the abolitionist feminist as a "multiple exile and outcast" who in opposing "moral slavery" played a vital role in …

New Histories Of The Private Law Of Slavery, Mark Tushnet

Cardozo Law Review

The new scholarship on the private law of slavery, exemplified by the articles in this Symposium, differs from earlier scholarship in its focus on the law in lower courts, as in Ariela Gross's article, and on the law in action, as in Thomas Russell's. The prior generation of scholarship, including my own, focused almost exclusively on appellate decisions and commentary by pro and antislavery lawyers. The new scholarship resembles its predecessor, however, in using legal materials to explore aspects of the ideology of slavery. For example, Gross develops a highly nuanced account of the image of the good master from …

Gender In The Law Of Slavery In The Antebellum United States, Andrew T. Fede

Cardozo Law Review

In her thought-provoking paper Finding Sojourner's Truth: Race, Gender, and the Institution of Property, Cheryl I. Harris explores the connections between slavery, race, and gender in the law of the antebellum United States. Harris acknowledges that slaves alone were defined as property at law, and, therefore,*the legal status of slaves differed from free white women and free black women. She also acknowledges that "white women" were allowed property rights on "male-defined terms" but asserts, nevertheless, that free women could be considered as a form of property.

Finding Sojourner’S Truth: Race, Gender, And The Institution Of Property, Cheryl I. Harris

Cardozo Law Review

This Article begins with the signature speech of Sojourner Truth, one of a handful of Black women of the nineteenth century who became an important figure in the abolitionist movement, a national figure in her own time, and an icon of both historical and contemporary feminism. As the emblematic Black woman of her time and as a Black woman that both suffered under and transcended slavery, Sojourner Truth was and is a critically situated subject through which to examine the crosscutting constructions of race and gender forged under slavery.

Property, Parenthood, And Peonage: Reflections On The Return To Status Quo Antebellum, Margaret A. Burnham

Cardozo Law Review

Cheryl Harris demonstrates how intertwining racial and gender boundaries, whose shadows are long, longstanding, and ominous, were initially constructed around the legal principle of human chattel as personal property. She insightfully argues that slavery inextricably linked the concepts of race and property in the American legal imagination; that property originates from rules that are "racially coded" and determined. Cheryl Harris's contribution to this Symposium is a continuation of her project of illuminating how law ratifies and implements a racialized conception of property. This comment considers the application of Professor Harris's argument, that property, in the context of race-based slavery, is …

Comment On Hans Baade’S The Gens De Couleur Of Louisiana: Comparative Slave Law In Microcosm, Morris S. Arnold

Cardozo Law Review

Hans Baade invented colonial Louisiana legal history. Before he started doing research in the eighteenth-century records in New Orleans and elsewhere, virtually no serious historical work involving the judicial and notarial archives of colonial Louisiana had ever been done. Professor Baade also undertook years ago to trace the various French and Spanish statutory enactments that bore on Louisiana legal history, and this proved to be a virtually impenetrable mare's nest. Before Professor Baade began his work, most of what had been written about Louisiana's colonial legal past was both amateurish and antiquated. It should therefore come as no surprise that …

The Gens De Couleur Of Louisiana: Comparative Slave Law In Microcosm, Hans W. Baade

Cardozo Law Review

That slavery can be nothing but bad is a universally accepted proposition; it has therefore been contrary to international law for quite some time. Yet there remains the following debate: were there systems of slavery in the past that were "better" than others-better, that is, for the slaves? It is worth recalling that according to the only surviving account of the history of Roman law written in antiquity, Gnaeus Flavius, the son of a freedman, utilized his position as the High Priest's scribe to make public the original register of the forms of action which had hitherto been kept secret. …

Comment On The First Slave (And Why He Matters) By Jonathan Bush, Peter Kolchin

Cardozo Law Review

In his Article The First Slave (And Why He Matters), Professor Jonathan Bush returns to a persistent question in the history of the colonial Chesapeake: the status of blacks in the seventeenth century. He frames this question, however, in a new way. Rather than seeking to determine whether or not blacks were slaves before the codification of slave law-a largely unanswerable question that revolves, at least in part, around what one means by "slaves"-he asks, how could the English have imposed slavery on blacks in America when slavery was non-existent in England and under English law? In response, he …

“Doubly Condemned”: Adjustments To The Crime And Punishment Regime In The Late Slavery Period In The British Caribbean Colonies, Anthony De V. Phillips

Cardozo Law Review

Several good reasons must have led Michael Craton to choose the title for his very useful work, Searching for the Invisible Man: Slaves and Plantation Life in Jamaica. In the area of slavery and criminal sanctions, however, there is great difficulty with the idea of the "invisibility" of black people. Blacks were, in fact, "evervisible." Indeed, in view of their numbers and ubiquity, the slaves were at the forefront of the minds and concerns of all white people. This was especially true for the dominant political elite who made the laws and controlled the system of the administration of …

Outlawing Outcasts: Comparative Perspectives On The Differing Functions Of The Criminal Law Of Slavery In The Americas, Robert J. Cottrol

Cardozo Law Review

This is a commentary on some issues raised by Anthony De V. Phillips's "Doubly Condemned": Adjustments to the Crime and Punishment Regime in the Late Slavery Period in the British Caribbean Colonies and Judith K. Schafer's "Under the Present Mode of Trial, Improper Verdicts are Very Often Given": Criminal Procedure Trials of Slaves in Antebellum Louisiana, both of which appear in this volume. Both discussions highlight the role of criminal law, procedure, and punishment in helping to sustain systems of African and Afro-American chattel slavery in New World societies. They provide interesting contrasts between civil and common law approaches to …

Condemned By Substance And Process: A Comment On “Doubly Condemned”: Adjustments To The Crime And Punishment Regime In The Late Slavery Period In The British Caribbean Colonies And “Under The Present Mode Of Trial, Improper Verdicts Are Very Often Given”: Criminal Procedure In The Trials Of Slaves In Antebellum Louisiana, Raymond T. Diamond

Cardozo Law Review

The substance of modem criminal law and the procedures through which that law is enforced are a subject of current debate. On the one hand, some call into question the use of criminal sanctions as a means of enforcing schemes of regulation meant to guarantee public welfare. By the same token, violent crime and crime that is otherwise malum in se has caused increasing levels of fear and concomitant calls for more vigorous enforcement of the criminal law. As a result, the rights that protect the accused from intrusions by a potentially tyrannical state and from arbitrary decision making by …

Abolitionist Feminism, Moral Slavery, And The Constitution: “On The Same Platform Of Human Rights”, David A.J. Richards

Cardozo Law Review

The analogy between race and gender plays an increasingly important role in the interpretation of the Equal Protection Clause of the Fourteenth Amendment. However, interpretive arguments about the analogy make little or no reference to the abolitionist historical background of the Reconstruction Amendments in general and the Fourteenth Amendment in particular. This might make some sense if the only legitimate interpretive appeal to history were Raoul Berger's version of originalism, namely, the specific denoted things (including persons and practices) to which the relevant drafters and ratifiers of the pertinent constitutional text would or would not have applied the language in …

Opening Address, Stanley N. Katz

Cardozo Law Review

I am more moved by this occasion than any of you other than Owen Fiss can imagine, for it takes me back to my first days teaching law at the University of Chicago in the fall of 1971. It was then and there that I began two of the most important friendships of my life with Harry Kalven and Owen Fiss. We agreed to begin a series of seminars on the law of slavery, which in the end carried on for three years.

Comment On Guyora Binder, “The Slavery Of Emancipation”, Michael Les Benedict

Cardozo Law Review

When I first received Professor Binder's highly theoretical, speculative, and thought-provoking paper, I wondered whether I was the right person to comment upon it. Professor Binder has a philosophical turn of mind; he is at home in the world of Hegel. I am disoriented in territory more exotic than that of Locke. In the history department of the Ohio State University, I teach the course that introduces our graduate students to the philosophy of history. However, I have always considered that a cosmic practical jokeon my students more than me-cooked up by the shades of Hegel, Collingwood, and Croce.

The Ten Precepts Of American Slavery Jurisprudence: Chief Justice Roger Taney's Defense And Justice Thurgood Marshall's Condemnation Of The Precept Of Black Inferiority, A. Leon Higginbotham Jr.

Cardozo Law Review

Approximately twenty-five years ago, a group of thoughtful scholars, under the tutelage of Stanley Katz and Owen Fiss, met at the University of Chicago to discuss slavery law. Stanley Katz has previously noted that the conference generated extraordinary academic inquiries, as well as many books and articles. In this Article, I will describe briefly the intellectual journey I have traveled which was, in no small part, shaped by the conference and the interrelationships I have had since then, with so many scholars, as we have tried to get better insights into the interrelated issues of bondage, freedom, and the Constitution.

The Origins Of The Law Of Slavery In British North America, William M. Wiecek

Cardozo Law Review

In American experience, slavery originally appeared as a response to economic need. Subsequently, racism emerged as a justification for slavery, required as a response to the inherent contradictions of slavery. First there was slavery, then racism, then a fatal fusion of the two.

Can A Lawyer Ever Do Right?, Owen M. Fiss

Cardozo Law Review

Jacques Maury and Maurice Gargon were good people, but not good enough. They resisted the harshness of the racial laws of Vichy France but not as fully as they should have. Falling victim to the proclivity of all lawyers, they became ensnared within the technical trappings of the law. They helped individual clients who suffered under the Vichy laws, but are faulted by Richard Weisberg for failing to challenge those laws at a foundational level. Professor Weisberg described the result as grotesque.

Legal Ethics And Fugitive Slaves: The Anthony Burns Case, Judge Loring, And Abolitionist Attorneys, Paul Finkelman

Cardozo Law Review

Judges and lawyers seek to enforce and uphold the "law" while also proclaiming an interest in an abstraction we call "justice." As we know, there is often a tension between the two. Consequently, serving the law often means not serving justice. Similarly, often a tension exists between a lawyer's duty both to seek a legal remedy to a problem and to act in the best interests of a client. Activist lawyers can have an agenda that is at odds with members of the class they claim to serve. These two problems are complicated by a third. Lawyers and judges have …

Ethics Under Slavery’S Constitution: Edward Loring And William Wetmore Story, Ruth Wedgwood

Cardozo Law Review

We can greatly admire Paul Finkelman's paper on the rendition of Anthony Burns in 1854 and the problematic role played by Judge Edward Loring in returning Burns to Southern bondage. Professor Finkelman draws thoughtfully from original source materials of this famous case in the harnessing of political feeling against slavery, including the diary of Richard Henry Dana, the papers of Senator Charles Sumner, and the records of Harvard College.

Allocating Honor And Acting Honorably: Some Reflections Provoked By The Cardozo Conference On Slavery, Sanford Levinson

Cardozo Law Review

I begin by focusing on some of the comments by Stanley Katz and others about Judge Thomas Ruffin, the famous author of the egregious North Carolina opinion, State v. Mann, and its endorsement, at least as a legal matter, of a master's absolute power over the slave. Can one have, as apparently Harriet Beecher Stowe did, "deep respect for the man" Ruffin even as one despises the system that he served? Would we, for example, wish to honor him by placing his portrait in American law schools as a presumed inspiration to further generations of law students as to …

The Moral Economy Of The Purchase Of Freedom: Ethical Lessons From The Slave Narratives, Lea Vandervelde

Cardozo Law Review

In his contribution to this symposium, Richard Weisberg tells us a subtle story of what he calls "twin hermeneutics." I will use one of these-"the hermeneutic of acceptance"-to launch my own discussion on the subject of ethical dilemmas. By this term, "the hermeneutic of acceptance," Weisberg means the gradual acceptance by French lawyers of the scheme of racial exclusion newly created by Vichy laws. He traces the digression in legal arguments made by French lawyers during the four years of Vichy rule. French lawyers loaned their prestige to these new laws by means which placed their legal arguments on a …

The Unlikely Hero Of Dred Scott: Benjamin Robbins Curtis And The Constitutional Law Of Slavery, Earl M. Maltz

Cardozo Law Review

The standard account portrays Dred Scott v. Sandford as a story of villains and heroes. The villains are the members of the majority, led by Chief Justice Roger Brooke Taney, who concluded that descendants of slaves could never become citizens of the Union and that Congress could not outlaw slavery in the territories. The heroes, on the other hand, are the two dissenters, John McLean and Benjamin Robbins Curtis, who rejected these conclusions and determined that Scott should be deemed a free man. McLean's opinion, however, was not tightly reasoned and was rather clearly designed to advance his presidential ambitions; …

Comment On Earl Maltz, Kenneth M. Stampp

Cardozo Law Review

Professor Earl Maltz has written an excellent brief account of Benjamin R. Curtis's judicial record as it relates to slavery, including his dissenting argument in the famous Dred Scott case. He found Curtis to be a perfect example of mid-nineteenth century Northern conservative Whigs-the "Cotton Whigs," as their antislavery critics called them. They disliked slavery, but, in equal measure, they disliked those who agitated against it. Both Southern proslavery extremists and Northern abolitionists appalled them, for both groups endangered the Union. Conservative Whig President Millard Fillmore would not have appointed Curtis to the Supreme Court if he had shared the …

"The Compromising Expedient": Justifying A Proslavery Constitution, James Oakes

Cardozo Law Review

Why was the Constitution so proslavery?

The answer cannot be that proslavery ideologues dominated the process by which the Constitution was drafted and ratified. A historian could count on the fingers of two hands all of the zealous partisans of slavery (and of abolition) who were known in the late 1780s. They occupied the extremes of a debate over a Constitution that in the end neither extreme produced. The men responsible were the men in the middle-those who considered themselves progressives but who compromised with proslavery extremists for the sake of ratification, and thereby secured a Constitution that resisted much …

The Slavery Of Emancipation, Guyora Binder

Cardozo Law Review

The Thirteenth Amendment of the U.S. Constitution commands that "neither slavery nor involuntary servitude shall exist." What has been the effect of this command?

It will serve my present purpose to offer the following toosimple answer to this complex question: the Thirteenth Amendment secured little more than the manumission of slaves already practically freed by the friction of war. It guaranteed, in Confederate General Robert Richardson's now well-known phrase, "nothing but freedom."

Supposing this answer to be true, a further question presents itself: Did the Thirteenth Amendment's effect fulfill its command? Did universal manumission abolish slavery?

A full answer to …