Law and Society—North and South

Law andSocietyNorth andSouth ~hchael Stephen Hindus. Prison and Plantation: Crime, Justice,andAuthority in Massachusetts and SouthCarolina,1767-1878.Chapel Hill: University ofNorth Carolina Press, 1980.285 + xxviiipp. Paul Finkelman. An lmpe,fect Union: Slave,y fode,alism, arzdComity. Chapel Hill: University ofNorth CarolinaPress, 1981.378 +xii pp. Jean V.Matthews These two new works in the University of North Carolina's "Studies in Legal History" series are both excellent examples of the way in which legal history isincreasinglybreaking away from a narrow professional focus to an awarenessthat legal developments must be seen as part of social and political history. The law evolves partly from its own logic and the dynamics of its own intellectual processes as well as from the compulsions of its professional organization.But it is not hermetically sealed from influences from the rest ofsocietyand must in some degree be molded by the intellectual currents, politicalproblems and class conflicts and power of that society. It is the interface-the ways in which society shapes the law and the effects which legaldevelopments in turn have upon society-which is of interest to the generalhistorian. Yet this is a very difficult kind of history to write, since it requires enough expertise to understand the internal, technical determinants oflegaldecisions and changes, without being so enmeshed in the disciplinary ethosthat one can discern only a continuous Whig evolution toward ever increasingrationality and enlightenment. Both these authors seem to move with assurance through legal matters whilefirmly maintaining a general historical perspective. Michael Hindus is apracticing attorney as well as an historian, and Paul Finkelman conceived hisbook from his experience in a seminar on slavery and law taught jointly byan historian and two lawyers at the University of Chicago Law School. Canadian Review of American Studies, Volume 13, Number 3, Winter 1982 334 Jean V.Matthews Both books would be suitable for advanced undergraduate coursesin American history, introducing students to the importance of being aware of law as part of the total culture of society. They show how important legal developments and disputes at the state and local level can be for an under· standing of American society, as well as the extent to which law itselfis shaped by social and political currents. Both are also important entriesin that perennial debate: "How different-really-were the North and theSouth in the years before the Civil War?" Michael Hindus' answer is: considerably! He is concerned with criminal justice, which makes this book of interest to the growing number ofhistorians dealing with crime and deviance of all kinds. He deals with the structureof formal authority, patterns of crime, methods of dealing with criminalsand attempts at legal and penal reform in Massachusetts and South Carolinaas integrated elements of a system of criminal justice which can be understood only in the context of the social structure of each state. By studying this system comparatively in these two archetypical Northern and Southern states, he can show the extent to which two American societies, both heirs to the English common law tradition, could develop different attitudes toward and methods of dealing with crime and punishment as functions of their different social and economic structures. Given the different economic and social circumstances in each state, together with different ruling class expectations of popular behavior, itisnot surprising that the pattern of crime shows striking divergences. In a statistical survey of crimes prosecuted, Hindus shows that in Massachusetts crimes against morality dominated in the colonial period and continued to doso in the nineteenth century, although liquor-related offenses replaced sexual ones as the largest single category. Crimes against property increased inthe nineteenth century to almost one-third of all prosecutions. In South Carolina the crime rate was consistently higher, but the distribution was quite different. Well over half the prosecutions were for various crimes of violence, mainly assault, asagainst under 18%for Massachusetts. Furthermore, in the southern state the initiative for the prosecution for assault came from the offended party and the cases were quite often settled out of court before comingto trial. In Massachusetts, on the other hand, the most common form of prose· cution, for drunkenness, was brought by public authorities. In the one case the law was being used as...