1) ---the hegemonic function of the law---

Genovese exposes how race and racism were codified in ante-bellum slave law, and how racism dizzyingly echoed back and forth between law and the popular culture. The ideology crafted by the planter class evolved into a set of hegemonic structures (law, family culture, religious institutions) which reinforced the belief in black and slave inferiority.

"The law acts hegemonically to assure people that their particular consciences can be subordinated—indeed, morally must be subordinated—to the collective judgment of society. It may compel conformity by granting each individual his right of private judgment, but it must deny him the right to take action based on that judgment when in conflict with the general will. Those who would act on their own judgment as against the collective judgment embodied in the law find themselves pressed from the moral question implicit in any particular law to the moral question of obedience to constituted authority. It appears mere egotism and antisocial behavior to attempt to go outside the law unless one is prepared to attack the entire legal system and therefore the consensual framework of the body politic."

The section from which this is taken is actually called "The Hegemonic Function of the Law." Genovese's point in this part of his analysis is to establish how ambiguous and dangerous a world the Old South was for slaves, because there were two systems of law set in place: the legal architecture of the state and the rules and customs of plantation law. "The southern legal system increasingly came to accept an implicit duality: a recognition of the rights of the state over individuals, slave or free, and a recognition of the rights of the slaveholders over their slaves." All well and good from a planter's perspective, except that slaves continually expressed their own humanity, which led to a dilemma: when should the state intervene to exercise its power over individuals and when should it let masters exercise their power over their property... and what if the actions taken in this dual system of laws came into conflict? In other words, what if the state said a slave should be treated in one manner but the slaveholder wished to treat their slave in another? (This ambiguity carried with it the tremendous irony that in the Old South, planters were the state—they comprised the vast majority of elected officials.) Here's what Genovese argued about this dilemma

"Confronted with these painful and contradictory necessities, the slaveholders chose to keep their options open. They erected a legal system the implications of which should have embarrassed them and sometimes did; and then they tried to hold it as a reserve. They repeatedly had to violate their own laws without feeling themselves lawbreakers."

Rereading that today, I am struck by the inversion of the law's function in the contemporary South. In the slave South, the law was established to place restrictions on the actions of individuals, including white masters, but they circumvented or stood outside the reach of the law. White planters made the laws and used them when convenient; they refused to subject themselves to the same laws.

In Florida and other "stand your ground," right wing states, the law now functions to facilitate, not restrict action. These laws no longer curtail the excesses of individual judgment by setting them against the general will—individual judgment and the general will are no longer distinguishable. That is one terrifying result of the Zimmerman case. The hypocrisy in the slave South was that whites operated in violation of the law whenever they chose with impunity. The hypocrisy now is that the aegis of the laws protects whites as they commit horrific acts without much evidence that it protects blacks.


2) ---Thomas D. Morris, Southern Slavery and the Law---

chapter 8: Law and the Abuse of Slaves

Punishment was essential to defining relations between masters and slaves.  It was meant to degrade and undermine slaves, although its exercise was limited by law and social conventions.  There were many statutes in the colonial South that restrained the violence of masters.  Most jurisdictions punished masters for cruelty or inhumanity.  Evidence was problematic because slaves were not allowed to testify.  Some slave owners were found guilty of slave abuse at common law.  In some states, slaves were allowed certain civil “rights” even if slaves could not enforce or litigate about those rights without the help of whites.  Masters were required to provide food and clothing for slaves.  Some laws provided remedies, both civil and criminal, for third-party abuses of slaves.  Because of the vagueness and sparseness of court records, we do not know how routine civil actions for slave abuse really were.  Courts and statutes enabled masters to recover for abuse of their slaves.

chapter 12: Obedience and the Outsider

Slaves were considered “outsiders.”  As such, slaves had no rights and therefore, theoretically at least, no duties.  But masters typically held that they had a duty and a calling to govern subordinates and inferiors, and that subordinates and inferiors had a duty to obey masters.  Treason was a difficult concept to apply to slaves in part because slaves were outsiders.  Nevertheless, slaves who resisted violently were occasionally prosecuted for treason.  White planters adopted from the British some laws regarding treason, rebellion, and insurrection, but mostly they reacted violently against threats and perceived threats to the social order.  There were many nineteenth-century insurrection cases.  Concepts of treason and murder did not necessarily follow common law maxims.  Most slaves never had their cases reach the appellate level.  There are many compelling stories about master-slave relationships that resulted in the murder of the master.  Ultimate alienation, or making one an “outsider,” was a way to deal with slave resistance.  Making one an outlaw stripped him of his rights.  Slaves occupied a lowly position in society and were never completely insiders or outsiders.



3) ---State vs Negro Will---

State v. Negro Will, a celebrated 1834 North Carolina Supreme Court decision standing for the general proposition that if a slave in self-defense, under circumstances strongly calculated to excite passions of terror and resentment, kills his overseer or master, the homicide is not murder but manslaughter. Justice William Gaston wrote the opinion for a unanimous court.

On 22 Jan. 1834 Negro Will, a slave of James S. Battle of Edgecombe County, engaged in an altercation with Battle's slave foreman, Allen, regarding the possession of a hoe. As a result of the dispute, Will broke the hoe and then went to a nearby cotton mill to work. On learning of Will's conduct, Battle's white overseer, Baxter, seized his loaded gun, mounted his horse, and ordered Allen to follow with a cowhide whip. Accosted by Baxter, Will attempted to run away, whereupon Baxter emptied the gun into his back. The wounded fugitive continued to flee but was intercepted by Baxter. In the ensuing struggle, Will delivered a fatal knife wound to Baxter's arm. The Edgecombe County Superior Court found Will guilty of murder in the first degree and sentenced him to die.

After investigating the matter, Battle became convinced that Will had acted in self-defense under extreme provocation. Determined to see that Will received justice, the slave owner engaged two leading members of the bar, Bartholomew F. Moore and George Washington Mordecai, to represent him; to Moore, Battle paid the extraordinary fee of $1,000. Moore and Mordecai took Will's appeal to the state supreme court, where they were opposed by Attorney General J. R. Daniel.

In his brief and oral argument before the supreme court, Moore demanded that the law display a humane attitude toward Will. He maintained that Chief Justice Thomas Ruffin's 1829 decision in State v. John Mann, in which Ruffin had written that "the power of the master must be absolute in order to render the submission of the slave perfect," was abhorrent and at variance with prior case law. Although it disagreed with Moore on this point, the court unanimously reversed Will's conviction.

Writing for himself, Ruffin, and Justice Joseph J. Daniel, Justice Gaston reasoned that, had the homicide been committed by free man upon free man, it could have been no more than manslaughter; if between master and apprentice, the deed could have been attributed to "a brief fury" that did not leave the mind capable of the sort of calm, rational thought required for murder. In forceful language, he continued: "If the passions of the slave be excited into unlawful violence by the inhumanity of a master . . . is it a conclusion of law that such passion must spring from diabolical malice?"

Gaston's opinion was lauded by moderate antislavery forces throughout the country; passages were quoted in prominent newspapers and law journals. In silent tribute, abolitionist commentators ignored the decision, presumably because it had scant potential for propaganda. Beginning in the 1890s, historians praised Will's "humanity;" the case supposedly did much to abate the harshness of prior law, such as Ruffin's opinion in Mann.

4) ---formal assumptions of the judiciary---