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The Southern Judicial Tradition: State Judges And Sectional Distinctiveness, 1790-1890.

The Southern Judicial Tradition: State Judges And Sectional Distinctiveness, 17901890, by Timothy S. Heubner. Athens: University of Georgia Press, 1999. xiii, 263 pp. $45.00 cloth.

THIS BOOK IS ABOUT THE CONTRIBUTION SIX PROMINENT judges made to the development of Southern law and society during America's first century. The judges are Spencer Roane of Virginia, John Catron of Tennessee, Joseph Henry Lumpkin of Georgia, John Hemphill of Texas, Thomas Ruffin of North Carolina, and George W. Stone of Alabama. The book's focus is upon each judge's service on the highest court of his state, though in Catron's case, the author also considers that Justice's tenure on the U.S. Supreme Court.

Heubner uses the professional lives of these six men to explore important themes in Southern history. Broadly, he considers the contribution lawyers and courts made to the development of a distinctive Southern consciousness and whether this sectional identity reflected legal rules and institutions which were peculiar to the region. Employing skillfully the technique of collective biography, Heubner probes insightfully the region's law concerning homicide, economic growth, federalism, and race. Historians generally have argued that Southern law in these fields embodied distinctive cultural values and interests. Locating the six leading judges firmly within the society and politics of their states enables Heubner through comparisons and contrasts to test the validity of established historical conclusions. He makes a good case that in certain instances these conclusions should be revised.

Over the century following the Constitution's ratification a strong professional legal culture emerged in the United States. As the French commentator Alexis de Tocqueville observed, American lawyers and courts possessed greater power and influence than their counterparts elsewhere in the world. Ultimately, the legal profession's unique standing drew its authority from the unusual institutional independence federal and state judiciaries possessed under their respective constitutions. Thus, just as Chief Justice John Marshall fought successfully for the independence of the federal court system and the U.S. Supreme Court, state judges such as Roane, Catron, Lumpkin, Hemphill, Ruffin, and Stone generally won similar struggles to establish state trial and appellate court systems on equal constitutional footing with the legislative and the executive. Roane, of course, engaged in and eventually lost a protracted clash with Marshall over the supremacy of the U.S. Supreme Court. Less well known, however, was Roane's triumph within his home state which insured the supremacy of the final appellate tribunal he led as Chief Justice. In Georgia, North Carolina, Texas, Tennessee, and Alabama judicial independence and the corresponding authority of the legal profession also prevailed. Even so, Heubner shows, the course of this important institutional development in the South paralleled closely the experience of judges and the legal profession throughout the rest of the nation.

The tension between a shared national professional culture and a distinctive Southern consciousness shaped judicial decision-making. Among the six judges the formal commitment to English precedent varied. Concerning especially the law of homicide, each of the judges except Roane (who apparently handed down no significant decision in the field) consistently applied the English rule--which placed on the defendant a heavy burden of proof--to favor conviction in murder cases. Heubner's findings on the important point are contrary to the accepted historical interpretation which contends that Southern appellate judges sustained a culture of violence that was regionally distinctive. Ironically, during the antebellum years each of the five judges shared with most of their Northern and Western counterparts a strict regard for the English rule; after the Civil War, however, Alabama's Chief Justice Stone (who alone of the six lived on into the postbellum era) struggled in professional isolation to maintain the old doctrine, while the rest of the nation's judges, North and South, displayed a new respect for the rights of at least white, propertied defendants.

Even so, where law involved economic development all six Southern judges, like most of their colleagues across the nation, creatively rejected English precedent and generally favored the market opportunity of small enterprises. In this respect, Hemphill's pioneering work establishing the Texas homestead exemption law, giving bankrupt debtors new broad protections against creditors, was significant. Indeed, sooner or later most if not all states adopted some version of the law. Yet as Heubner shows, the law's origination in Texas was due primarily to the state's unusual Spanish-Mexican civil law, rather than a distinctively Southern, heritage. Similarly, Catron's many decisions on behalf of squatter property claims against speculators or nonresident land owners in Tennessee denied well-established English precedent; but on the level of general policy he was following doctrines developed by such leading Northern jurists as Joseph Story. Finally, in their decisions regarding the legal status and powers of corporations, Southern judges pretty much followed the same approach as judges outside the South.

Thus Heubner finds the principal source of a distinctive Southern legal tradition in the institution of slavery. Lumpkin and Ruffin authored decisions defending in classic terms the institution as morally, socially, and politically good for both masters and slaves. While Hemphill and Catron granted masters a greater right to emancipate their slaves than did the four other judges, all six defended the preservation of the institution as essential to maintaining Southern civilization. Lumpkin, who in his youth at Princeton and during travels abroad had expressed agreement with the views of Northern Evangelical Protestants favoring abolition, became throughout the rest of his life an articulate proponent of a Christian justification for slavery. But even Catron, the only one of the six judges whose Jacksonian Democratic opposition to Nullification kept him loyal to the Union in the Civil War, embraced the basic faith that what made the South not only special, but culturally superior, was the humane relationship most Southern masters believed they shared with their slaves. Not only masters but apparently most non-slave holding Southerners as well expressed similar beliefs, despite the practical outcome of innumerable court decisions and laws which ultimately enforced the dominance of market and racist values denying any real personhood to all blacks, slave or free. Heubner shows correctly that by the late nineteenth century there was little significant difference between the racial attitudes of Southerners such as Stone and most other Americans. Still, the linkages existing between race and the positive defense of slavery sustained through the formal sanction of the law within a distinctive Southern judicial tradition, did much to bind the South's past to not just its own but the nation's future.

This book is a fine contribution to the study of American history and institutions. The University of Georgia Press has done an excellent job of publication.

TONY A. FREYER University of Alabama
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Title Annotation:Review
Publication:The Mississippi Quarterly
Article Type:Book Review
Date:Mar 22, 2000
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