| Book Review | The American Historical Review, 104.4

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| Book Review | The American Historical Review, 104.4 | The History Cooperative

Book Review

Canada and the United States

Jenny Bourne Wahl. The Bondsman's Burden: An Economic Analysis of the Common Law of Southern Slavery. (Cambridge Historical Studies in American Law and Society.) New York: Cambridge University Press. 1998. Pp. xii, 277. $49.95.

Charting a new route across familiar terrain, Jenny Bourne Wahl employs economic and legal theory to argue that southern jurists stamped a mark of economic efficiency on the common law of slavery. Taking her cue from scholars of the law, she maintains that "legal disputes are resolved efficiently when costs of dispute resolution are minimized, legal liabilities go to parties who can bear them at least cost, and legal entitlements go to those who value them most" (p. 2). By virtue of its focus "primarily on outcomes and incentives rather than on the underlying motives of judges" (p. 3), this definition has merit. But its twin assumption, "that the costs of legal rules to those affected most—the slaves—simply did not matter," displays a level of callousness that she concedes appears "heartless," even "noxious" (pp. 3, 9). 1

Wahl's case for economic efficiency rests upon approximately 11,000 appellate cases involving slave law heard in the southern states between 1787 and 1875; the bulk of these originated in the antebellum period and half in the four states of North Carolina, South Carolina, Alabama, and Louisiana. Wahl develops her thesis around the themes that preoccupied the litigants: disputes originating from the sale, transfer, and hire of slaves and from losses slaveholders sustained at the hands of common carriers, government officials, and other third parties. She finds remarkable uniformity in the rulings across space and time, from the Carolinas to Louisiana and from early in the nineteenth century through the Civil War. Not surprisingly, given her neoclassical theoretical orientation, she observes that the rulings "steered people toward the marketplace" (p. 7). . . .

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