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Excerpted from: Ariela J. Gross, “Like Master, like Man”: Constructing Whiteness in the Commercial Law of Slavery, 1800-1861, 18 Cardozo Law Review 263 (November 1996) (194 Footnotes) (Full Document)

ArielaJGrossIn 1836, Leonard Wideman bought a slave named Charles from Jonathan Johnson, paying in part with a $100 note. Not long after, Johnson sued Wideman in the Circuit Court of Abbeville, South Carolina for failing to pay his note. In defense, Wideman argued that he should not have to pay Charles's price because Johnson had fraudulently represented Charles to be sober, honest, and humble, when, in fact, he was insubordinate, vicious, a drunkard, and a runaway. The trial turned not only on Charles's character, but also on the character of his masters: Johnson, Wideman, and others who had previously owned Charles. Johnson argued that Wideman himself was responsible for Charles's character and the circuit judge agreed. The judge's instructions to the jury warned that Charles's so-called vices “were easy of correction by prudent masters, and it was only with the imprudent that they were allowed to injure the slave. Like master like man [is] . . . too often the case, in drunkenness, impudence, and idleness.”

When Southern slave buyers believed their newly acquired human property to be “defective,” physically or morally, they sued the seller for breach of warranty--just as they would over a horse or a machine. Similarly, slave owners sued hirers, overseers, and others for property damage when these people beat or neglected the owners' slaves. In these disputes over slaves as property, enslaved people nevertheless influenced the law in ways a horse or machine never could, because these cases challenged slaveholders' self-conception as masters and as statesmen. The philosophy of “like master, like man” meant that every time a slave's character came into question, his master's character went on trial as well.

Warranty trials, like Johnson v. Wideman, put mastery on trial when the litigants and witnesses portrayed slave character as a function of treatment or management by masters. Other private law cases, such as tort cases involving neglect or cruelty, offered parties and judges an opportunity to articulate standards of management even more directly, as juries decided whether a slave had been properly treated. In nineteenth-century law, witnesses could give character evidence by reporting on “the estimate attached to the individual by the community.” In jurisprudence, explained Francis Wharton, “character is . . . convertible with 'reputation,”’ provided that the witness could report on local, recent reputation. A trial could become the forum for a man's neighbors to discuss not only his local reputation for slave treatment, but all aspects of his plantation management: selling and trading, employing overseers, growing crops, and even breeding slaves.

Historical appraisals of the antebellum Southern slaveholder have been dominated in the last decades by the question of “paternalism.” In Eugene Genovese's view, both slaveholders and slaves were committed to a paternalistic system, defined as a set of “mutual obligations--duties, responsibilities, and ultimately even rights,” which allowed slaveholders to govern as a pre-bourgeois ruling class. In the opposing view, Southern slaveholders were profit-maximizing capitalists, whose words and actions can be analyzed as extensions of their economic interests. To some extent, it is useful to think about the image of the white master that emerges from “private law” trials in terms of paternalism--the phrase most often used as a standard for a good master was like “the prudent father of a family.”

Yet witnesses and judges at trial conjured a good master more complicated than merely “the prudent father of a family”; he was a statesmanlike disciplinarian and a smart manager of a plantation--which meant being a shrewd businessman. This image of mastery suggests the importance of both honor and profit-making to the white man of the plantation South, and the extent to which both slavery and the law helped to construct “whiteness” in terms of honor and profit.

Furthermore, while paternalist rhetoric was useful to help build up a master's image, it only entered the legal doctrine at the point where the master's own behavior was not at issue--when a hirer, overseer, or agent had charge of the slave. We need to move beyond the paternalism question to understand how the law worked to establish what it meant to be a master and, therefore, what it meant to be a white man in Southern plantation society.

Of course, no single ideal of mastery emerges from trials involving slaves as property. The legal “standard” of mastery set out by judges in these cases did not always match the admiring or disparaging comments witnesses made about particular masters. Just as judges tried to narrow the possible interpretations of slave character and behavior, judges emphasized different strands of Southern ideology about slave management and mastery than did those who came to testify in Southern courts.

In order to better understand the relationship between law and ideology, it is important to look beyond the published reports of appellate opinions, aimed at few and read by few. If we define “the law” broadly as one of the “great cultural formations of human life,” then the trial courtroom becomes an arena in which people create meaning. Buyers, sellers, hirers, owners, and overseers all told different stories about why slaves behaved as they did, all of which reflected on masters' character. In the courtroom, the parties drew on stories about mastery that were at large in antebellum Southern culture, but “the law” also helped to shape those stories. Furthermore, enslaved people, who were allowed no voice in the courtroom, nevertheless helped to create the law because their resistant acts forced these conflicts to the surface.

This Article is based on research in the trial records of the five states of the Deep South, or what was known in the antebellum era as the “Black Belt”: Georgia, South Carolina, Alabama, Mississippi, and Louisiana. These states were joined by the culture and economy of the cotton plantation; they were the greatest slaveholding and slave-importing states in the antebellum period. Thus, this Article's conclusions cannot necessarily be extrapolated to the South as a whole; they apply to the plantation Deep South.

In preparation for this Article, I read 503 published state supreme court reports of civil disputes involving slaves in the Deep Southern states from 1800 to 1870, all of the available trial records of those cases in four states (115 records), and all of the cases dealing directly with slave character in Louisiana (70 cases). In order to insure the representativeness of the appealed cases, I surveyed extensively the unappealed cases in Adams County, Mississippi. For the 1850s, I looked at every cause of action in the Adams Circuit Court. For the years 1798 to 1850, I looked at one out of three drawers in which the records were housed for a total of 10,317 out of 30,000 causes. I found 177 trials involving slaves (the vast majority of the 10,317 were uncontested debt actions). This in-depth county study assured me that the cases which made it to the supreme court level were not atypical.

[. . .]

Just as “private law” disputes over slaves helped to create the meaning of blackness through the stories parties told about black character, they also helped to establish the cultural meaning of whiteness. To be a white man in Southern culture involved a set of meanings about honor and mastery, which were contested by litigants and witnesses in trials over the warranty and hire of slaves. If these cases turned only on the question of whether a man was a good paternalist, only the most devout Christian would have cared. But because the statesmanlike master represented the proper way to live up to the honorable “Code of Conduct” of Southern gentlemen, disciplinary style and plantation management became arenas of conflict. The volume of literature on Southern planters' shelves devoted to plantation and slave management suggests the importance of these conflicts to the culture as a whole.

The cases also show the symbiosis of definitions of black and white character. It comes as no surprise to the good Hegelian that blacks and whites should each have been defined in terms of the other. Wherever the argument appeared that black character depended on management by a white man, then that white man's character depended on showing the other sources of black character.

Yet, just as with slave character, the definitions and the arguments were not monolithic. Witnesses and litigants used descriptions of good and bad masters to gain advantage in disputes between buyers and sellers, hirers and owners. Judges, however, reserved paternalist language for the project of making hirers into substitute masters for a term. Likewise, while parties in the courtroom painted a picture of the good master as reasonable, detached, and humanitarian to the extent that it made good business sense, judges emphasized the aspect of Southern ideology that called for masters to govern their domains according to a system, preferably with a code of laws and a “domestic tribunal.” Finally, despite paternalist rhetoric against cruelty, the only cruelty that led to liability, as a rule, was that committed by those other than masters or hirers, in a manner that violated ideals of statesmanlike mastery, or that committed against a pregnant woman.

Northern abolitionists always said that the worst thing about slavery was how it depraved white men's character. Slaveholders defending slavery tried in various ways to disprove this accusation and even to show that white character was improved through governing. By the last several decades before the Civil War, most Southern slaveholders were keenly aware of the relationship between their role as masters and their character. The courtroom was one arena in which slaveholders and other white Southerners worked out their hopes and fears for themselves and their future.

Ariela J. Gross, Assistant Professor, University of Southern California Law School.

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