1 On the revolutionary implications of running away, see also Fields 1982, 164.Google Scholar

2 See also Oakes 1990, which retains the language of ultimate contradiction between slavery and “liberal capitalism” while mapping constant interchange.Google Scholar

3 For a contrasting view about the relation of slavery and race that underlies much of the following see Fields 1990.Google Scholar

4 This problem is posed strikingly in Tushnet 1981, 140-55, and taken up in greater detail in Hodes (forthcoming).Google Scholar

5 On sex, slaveholding, white patriarchy, and race see K. Brown 1996. For the antebellum period see Bardaglio 1995.Google Scholar

6 For a previous formulation see Tushnet 1981, 140-55.Google Scholar

7 These presumptions did not always bear a relation to what happened in Southern courtrooms. Morris notes the decision of Virginia judge St. George Tucker in Hudgins v. Wrights (1806) in which racist physiognomy was substituted for reliance on Virginia's statutory one-fourth rule—belief in the objective visibility of race bypassed the legislature's blood-parsing presumptions (p. 26). Tucker's bloviation in the face of an existing presumption raises a problem to which we will return: the relation of the law as written in statute and decided on appeal to the local life of both law and ideology in the slaveholding South.Google Scholar

8 Morris's observation that the enslavement of individuals of African descent antedated the rigidification of a “color line” (p. 41) seems to me to argue against his own earlier assertion that slavery was the product rather than the producer of racialized “blackness” (p. 10). See Fields 1990.Google Scholar

9 Louisiana and Texas were civil law states. For a treatment of civil-law slavery that is equal in scope and depth to Southern Slavery and the Law see Schafer 1994.Google Scholar

10 The view of an essential contradiction is partially shared by Oakes (1990), though Oakes is primarily concerned with criminal law and the broader premises of “liberalism.”.Google Scholar

11 The usage of “republicanism” follows Morris's own, which focuses on the importance of preserving settled property from the market.Google Scholar

12 Morris attributes some of this seeming ideological promiscuity to eddies within the Southern economy: when judges recognized slaves' individual failings in a warranty case or slaveholders' stated affections in a damage case, he argues, they worked in a tradition of legal paternalism more appropriate to the eldest among the slave states than the “bumptious” commercial states of the expanding Southwest (pp. 104, 120). There is a Tushnet-like conjugation here: Old South vs. Emerging South; Paternalism vs. Liberalism; Humanity vs. Interest; and Warranty vs. Caveat Emptor. But in Morris's argument, these contrasts emerged from the incomplete commercial evolution of parts of the slave South—the evidence of Horwitz's transition rather than Tushnet's contradiction. Liberal capitalism, Morris concludes, “had made deep inroads” into the commercial law of slavery.Google Scholar

13 For the slave market see Johnson 1995. For the daily discipline of slavery see Oakes 1990, 139-52.Google Scholar

14 For a critique of overstrict relation of ideology to economy see Hall 1988.Google Scholar

15 “Can you go to the market, daily, and buy one like him, as you might a bale of goods, or a flock of sheep? No. They are not to be found daily in the market. Perhaps you might be able to buy one of the same sex, age, color, height and weight, but they much differ in Moral qualities of honesty, fidelity, obedience, and industry; in intellectual qualities of intelligence and ignorance; in physical qualities of strength and weakness, health and disease, in acquired qualities, derived from instruction, in dexterity performing labor you wish to assign to him…. When one goes into the market to purchase a slave, or a number of them, his selection is determined by the best evidence he can obtain in reference to these qualities. And why should he not have them in specie?” (quoted in Morris, p. 116). Chancellor Johnson's paean to legal paternalism takes the form of a slave buyer's guide, a tour of the slave pen where slaves are lined out by sex and size around the walls; the visible differences in age, size, and complexion; the questions to determine moral qualities and intelligence; the bodily inspections for health and tests of dexterity; the process of choosing the one, “him,” from among the many. It is precisely the complexity of buying a slave (read: the slave market) that demands a decree of specific performance (read: a recognition of the human singularity of a slave), and precisely the arena of money value, of infinite comparability, that best illustrates the value of human singularity. (And it is precisely “him,” an imagined male slave, who is best-suited to illustrate the paternalist attachment of slaveholder to slave without indelicately alluding to the other sorts of attachments available for sale in the slave market—imagine Chancellor Johnson writing “can you buy one like her …”) Six years earlier in Sorter v. Gordon (1835) Chancellor Harper of South Carolina had reserved an exception to decrees of specific performance: if the “purchaser contracted for the slaves as merchandise to sell again” (quoted in Morris, p. 115). Taken together, the South Carolina decisions outlined the artificial separation of “slavery” from the “market” that has been taken up to one degree or another by most scholars who have worked on the topic. “The market” was represented by those who went there to sell, “Slavery” by those who went there to buy: on the one side was commerce, commodification, and deceit, on the other paternalism, humanity, and credulity. To see this as anything other than proslavery ideology, Michael Tadman has shown in Speculators and Slaves (1989), is to mistake the nature and complexity of the system that spawned it. On the antinomies and interrelations of “paternalism” and the slave market see Johnson 1995, esp. 122-28.Google Scholar

16 See, for instance, the decision of the Delaware Supreme Court in Smith v. Milman (1839), which involved the disposition of children born to a woman willed to a life tenant but destined ultimately to return to the estate's remainder. In that case the court argued that ensuring good treatment of the young slaves required that their permanent possession vested in those who held only life estates in their mother. That was, Morris notes, “humanity stood on its head,”“humanity” that underwrote the life tenant's legal (if not necessarily eventual) separation of enslaved children from their mothers.Google Scholar

17 “The presumption that a white woman yielded … to the embraces of a [N]egro, without force … would not be great.”Pleasant v. Arkansas (1855), quoted in Morris, p. 303. Morris points out that not all such liaisons, nor even all accusations of rape, ended in the quick and violent execution of the slave involved, a point also made by Hodes (forthcoming). Morris also notes that the social status of the white woman involved figured prominently in the disposition of these cases. For more on the social matrices that defined the boundary of consent see Block 1995, chap. 4.Google Scholar

18 The use of slave testimony against other slaves, Morris argues, emerged out of the use of such testimony in cases of insurrection (pp. 237–38).Google Scholar

19 For the case for contradiction see, for example, Genovese 1974a or Oakes 1990.Google Scholar

20 Pointing out one peculiarity of local “justice,” Morris notes that North Carolina had more slaves brought to trial for arson than most other Southern states, that a large number of those brought to trial were acquitted, and that the cases disproportionately originated in New Hanover County. An earlier state-level comparison of the frequency and tendency of slave law cases was made by Nash (1979).Google Scholar

21 On the dialectics of manumission and slavery see Patterson 1982, where it is argued that the promise of eventual freedom is one of the most effective disciplinary features of slavery. On free black people see Berlin 1976; M. Johnson and Roark 1984; Fields 1985, 63–89.Google Scholar

22 For a careful accounting of the structures that mediated the “humanitarian sensibility” in the 19th-century North see Clark 1995.Google Scholar

23 The anguished cries that punctuate some legal histories (not Morris's)—“how could Judge Ruffin say x when only six years earlier he had maintained y?!”—suggest to me a longing for philosophical coherence that is almost metaphysical in its willingness to ignore both space and time, strategy, and change. On inconsistency and change in intellectual history see Skinner 1969.Google Scholar

24 To understand the place of everyday life and local history in the writing of legal history, it is useful to think of world-historical processes as being like the beasts in Arnold Schwartzenegger's Predator: always there, shadowing the actors' every move, they are material only in the moment of confrontation. If you have not seen Predator, see Bourdieu 1977; de Certeau 1984; and Scott 1985, 1990.Google Scholar

25 For such stories see, for example, Campbell v. Bote, No. 1436, 5 La. Ann. 106 (1850); Pilié v. Ferriere, No. 1724, 7 Mart, (n.s.) 648 (La. 1829); Morrison v. White, No. 442, 16 La. Ann. 100 (1861) (Supreme Court of Louisiana Collection, Earl K. Long Library, University of New Orleans, hereafter UNO) and, generally, Johnson 1995; Gross 1995, 1996. For law made out of stories see Friedman 1989; Brooks and Gewirtz 1996.Google Scholar

26 See, for example, W. Brown 1847; Bibb 1849; Northup 1968; Jacobs 1861. See also Blassingame 1977; Drew 1846.Google Scholar

27 For the importance of property and property-based expectations to personal identity see Radin 1982.Google Scholar

28 It should be noted that Genovese, who is often faulted for ignoring slaves' “agency,” makes the point that the law of slavery was shaped around the actions of slaves. Genovese, however, reduces the effect of those actions to the encoding of a philosophically contradictory recognition of slaves' “humanity” in the law of slavery. Because this recognition occurred in confines suggesting to him that slaves had to appeal to their owners for justice, Genovese views it as fundamentally unthreatening—evidence of agency without autonomy. The rest of this essay is devoted to the very different conclusion about the stability of Southern slavery to which I have been led by the idea that the law governing the slaveholders was being shaped around the actions of the enslaved.Google Scholar

29 On the need for daily “verification” of ideologies in practice see Fields 1982, 153.Google Scholar

30 For the various ways of reading scars see Johnson 1995, 169-70, 261-63. For the type of story I am suggesting originated in Southern slave quarters and emerged in Southern courtrooms see Lemos v. Daubert, No. 4198, Rob. 224 (La. 1844); testimony of Dr. Allarsi, Pilié v. Ferriere, No. 1724, 7 Mart, (n.s.) 648 (La. 1829); testimony of Mary Ann Poyfarre and Celeste, Walker v. Cucullu, No. 326, 18 La. Ann. 246 (1866); testimony of Jean Landier and State v. Walker, a criminal case that emerged from the accusation of brutality made in the civil trial and included in the docket record of that case (UNO).Google Scholar

31 Kock v. Slater, No. 1748, 5 La. Ann. 734 (1850), questions to F. W. Pike (UNO).Google Scholar

32 Gross shows that such testimony was often contested on the grounds of its origin but was generally allowed.Google Scholar

33 Nixon v. Boavman and Bushy, No. 3485, 11 La. Ann. 750 (1856), testimony of Joseph Beard (UNO).Google Scholar

34 See, for example, Paul Finkelman's thoughtful review of Schwarz: “Schwarz's evidence suggests that much slave violence was motivated by personal responses to particular events or individuals, and not, as Schwarz argues, by a kind of unarticulated goal to destroy slavery” (1989, 401). See also Genovese 1974a, 597-98. Genovese's argument that slavery was characterized by the “hegemony” of master over slave, by the successful shifting of the terrain of conflict to regions that did not call into question the existence of slavery—the law, day-to-day resistance, personal conflict, and so on—remains the most influential statement of this position. My thinking on resistance and hegemony owes much to Scott 1985 and 1990 and to the arguments about the revolutionary significance of running away in the era of the Civil War made by Fields (1982, 164) and Oakes (1990, 155–94).Google Scholar

35 The issue is rethought with attention to differences among those who eventually became “black” in Berlin 1996 and in Brown 1996. For the antebellum period see Frederick-son 1971 and Oakes 1982.Google Scholar

36 Genovese 1974b; Fields 1982; Hahn 1983, esp. 15–133; Watson 1985; Freehling 1990, 39–58; Oakes 1990, 80–136; McCurry 1995, 92–129.Google Scholar

37 On gender and performance see Butler 1990, 79–149.Google Scholar

38 “Runaway” and “run away” is from Gross 1995, 288. Miller v. Belmonti, No. 5623, 11 Rob. 339 (1845);Miller v. Miller, Nos. 1024 and 114, 4 La. Ann. 354 (1849);Eukdie v. Long and Mabry, No. 3237, 9 La. Ann. 9 (1854);Morrison v. White, No. 442, 16 La. Ann. 100 (1861);Euphémie, f.w.c. v. Maran and jourdan, unreported Louisiana Supreme Court case No. 6741 (1865) (UNO). The presence of so much testimony about behavior in the cases is doubly important because Louisiana was a state in which the legal standard for race was based upon blood quantum rather than appearance or reputation.Google Scholar

39 For class-based differences over the law of slavery see Wyatt-Brown 1982; Gross 1996, 217-21.Google Scholar

40 In this formulation the vitriolic racism, sexualized political violence, and class-denying white supremacy of the postbellum South stand as the triumph of whiteness over slavery— of race over class—as the ordering principle of the Southern political economy.Google Scholar