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Book Review
| Mark V. Tushnet, Slave Law in the American South: State v. Mann in History and Literature, Lawrence: University Press of Kansas, 2003. Pp. 150. $29.95 cloth (ISBN 0-7006-1270-X); $12.95 paper (ISBN 0-7006-1271-8).
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| State v. Mann has long deserved the kind of sustained treatment that a book can best provide. The 1830 opinion by Judge Thomas Ruffin of North Carolina's Supreme Court is best known for its frank recognition of the harsh requirements of slavery. The brief opinion sets out the paradoxical logic of slavery—that the free will of the slave necessitates an effort to extinguish it. The opinion seems to condemn slavery (or at least the doctrine of complete dominion) morally as it defends it legally. Notable for its candor, the opinion nevertheless demands a kind of silence from both slaves and courts. The language of this particular defense of slavery was used by Harriet Beecher Stowe in an effort to arouse anti-slavery sentiments. |
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A hirer of the slave Lydia had shot her after she started to run from him as he punished her. He was indicted and convicted of assault and battery on the grounds that his behavior was "cruel and unwarrantable, and disproportionate." Judge Ruffin's opinion for the court reversed John Mann's conviction, determining that the criminal law must remain silent on the matter of a master (or hirer's) treatment of a slave. Slavery demanded the master's complete dominion over the body of the slave. The institution could endure neither the reality nor the perception of a legal appeal from such absolute power. |
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Ruffin begins the opinion (one of his first as justice) with a lamentation and soon moves to the imperious language of duty. It is terrible when such cases come forward, pitting the sentiments of man against the requirements of law—the duties of the judge. But it would be "criminal" to avoid the duties the law imposes. Aware of the harshness of the result, Ruffin observes toward the end of the opinion that statutory protections, the self-interest of owners, the familiarity of slaves and owners raised together, and community norms might reduce the occasions when courts were called on to answer such questions. |
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Tushnet divides this work into six chapters, in addition to an introduction and a bibliographical essay. He opens with a chapter on slavery and the law, touching on relevant legal contrasts. Among them are Lord Mansfield's view that slavery was inconsistent with the common law and the American South's rejection of that view, the promise of the Declaration as compared to the accommodation of the Constitution, the gulf between law and practice, the criminal law's treatment of "strangers" versus owners in their respective relations with slaves, and the race-specific provocation rules in antebellum North Carolina homicide cases. Ensuing chapters are devoted to the opinion itself—including its development through two prior drafts, previous scholarly treatments of the case, and lenses through which it might be viewed—from abolitionist writer Theodore Dwight Weld's analysis of self interest and passion through Robert Cover's "moral-formal dilemma" to more recent analyses, and the economic and political setting of the case along with an analysis of Ruffin's jurisprudence and character as they might help explain the opinion and its high rhetoric. Final chapters cover Harriet Beecher Stowe's second anti-slavery novel, Dred: A Tale of the Great Dismal Swamp—a novel in which she incorporates the Mann opinion—and scholarly reaction to the novel. |
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The virtues of Slave Law in the American South are considerable. Perhaps the most signal of these is Tushnet's decision to analyze rather than moralize, to assess Mann and Ruffin in their own contexts, insofar as this is possible. The result is a very helpful treatment of Ruffin's opinion as an exercise in character construction. Then there is Tushnet's epistemic modesty. About the case's precipitating events, there is likely little we can know, he says. Similarly, he is willing to lay out ambiguous—but suggestive—evidence, as he does on the issues of the severity of Mann's assault on Lydia, whether Chowan County juries were especially sympathetic to claims of abuse of slaves, what family might have owned Lydia, and what might have been the circumstances of her hirer, John Mann. Tushnet presents such evidence as pointing to possibilities and nothing more. He thus fairly presents facts that support contrary interpretations. |
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It is easy to dismiss, in a manner Tushnet refuses to, Ruffin's references to informal social norms (and statutes) as cynical efforts to cloak the harshness of the law's silence in the face of owners' abuses of slaves. One result of this refusal is an insightful analysis of the role of non-legal institutions in the social practice of slavery. Tushnet sees one of Mann's functions as institutional allocation. Ruffin feared the consequences of allowing the common law to address the (non-homicidal) depredations owners might wreak on slaves, but he was hopeful that non-legal institutions and norms might allow communities to control masters. |
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Tushnet profitably deploys the scholarship of others, expressing reasoned reservations about a number of scholarly claims—some quite specific, such as the severity of Mann's assault, and others more general, such as economic analysis of masters' liability for their conduct toward their slaves. Tushnet is less interested in simply recounting the work of others than in interacting with it in an effort to uncover richer meanings. |
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Ruffin's argument is pragmatic and utilitarian but invokes certitude, necessity, and duty. Tushnet's analysis of that argument is wide-ranging and contextual, illuminating the complexities of a troubling opinion and its author. Along the way, we come to better understand the roles of the common law, statutes, and non-legal institutions in slavery's practice. |
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| Arthur G. LeFrancois
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| Oklahoma City University School of Law |
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