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APPROACHES TO THE STUDY OF THE LAW OFSLAVERY Mark Tushnet Historians interested in slavery have found the law of slavery a fertile ground for developing insights into the operation of slave society as a whole. The materials of the law come in various forms, however, and can be used for differing purposes. In this article, I suggest that legal materials used by historians of slavery fall broadly into two categories and that differences between the types of material relied on have led to unnecessary disputes about the meaning and significance of the law of slavery. Further, when we pay attention to the type of material, we can develop a view of the law of slavery that treats it as a relatively integrated although internally contradictory unity. The broad categories of legal materials can be best described through a full discussion, but a preliminary attempt would distinguish between materials that openly reveal the facts of day-to-day social relations in the slave system, and materials that reveal the articulated methods by which slave law dealt with the society's problems.1 The first category includes the statements of facts given by appellate courts in the course of decision, and, in more recent studies such as Michael Hindus' statistics about the rate of so-called criminal activity by slaves and about the nature of the master class' responses to that activity. The second category consists of the statements of reasons given by appellate courts in deciding cases and statements relating to proposed legislation and constitutional amendments made by other lawmakers.2 Historians have tended to use materials in each category in different ways. * An earlier version of this article was read atthe Annual Meeting of the Organization of American Historians, New York, April 12-15, 1978. 1 In distinguishing between facts and articulations, I do not mean to imply that the articulations used by the master class arenot "facts relating to social relations." They surely are. The distinction made in the text is only a preliminary to a more extended discussion. 2 Enacted statutes fall somewhere between the two categories, though closer to the second because it is possible to infer from the structure of the statutes and their interrelations how the legislature implicitly thought about master-slave relations. For an example, see Mark Tushnet, "The American Law of Slavery, 1810-1860: A Study in the Persistence of Legal Autonomy," Law and Society Review, X (Fall, 1975), 119, 156-57 (dealing with system of partial compensation for owners of slaves executed for crime). Because the materials of state legislative deliberations are generally rather sparse, most of the material in the second broad category is appellate decisions. Civil War History, Vol. XXV, No. 4 Copyright ® 1979 by The Kent State University Press 0009-8078/79/2504-0003 $00.50/0 329 330CIVIL WAR HISTORY Helen Catterall provides the best example of a historian concerned solely with legal materials as they reveal facts of day-to-day life. The principle of selection she used in compiling "cases concerning American slavery" was simple: include all cases where a slave is mentioned in the statement of facts. For example, a random selection from the volume containing Mississippi cases discloses ten cases on two pages. Three criminal cases and one commercial case illustrate the court's approach to questions of substantive slave law. The remaining six cases do not involve the law of slavery at all. Rather, they illustrate such things as the informal market for selling slaves, the existence of slave-stealing, prices of slaves, and the occasional inability of a seller to comply with his promises involving slaves because the slaves could run away.3 Thus, on these two pages, under half the cases Catterall selected involved the law of slavery, and yet most of the cases shed some light on slave society generally. Of course, Catterall did not intend her compilation to be a work of synthesis, but the principle that legal materials can illuminate slave society by revealing typical instances of behavior, the "human drama" of slavery as Kenneth Stampp puts it, is widely used.4 Throughout The Peculiar Institution, for example, Professor Stampp intersperses examples taken from Catterall of master-slave...


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