Eugenius Aristides Nisbet played a critical role in Georgia's secession from the United States. Elected as a delegate to Georgia's 1861 secession convention, Nisbet introduced a resolution in favor of severing ties with the Union, and he led the committee that drafted his state's secession ordinance. Nisbet was a trained lawyer who had served on the Georgia Supreme Court, and his legal training shaped the way that he viewed secession. He believed that the Constitution did not give states the right to dissolve the Union; instead, this power rested solely in the people, and he framed the resolution and ordinance accordingly. Thanks in part to Nisbet, it was the “people of the State of Georgia” who “repealed, rescinded and abrogated” their ratification of the Constitution in 1788.Footnote 1
By helping to give legal imprimatur to Georgia's secession, Nisbet provided a capstone to decades of legally manifested sectional tensions. In the nineteenth century, Northern courts helped diffuse and support free-labor ideology and Southern courts helped secure the slave system.Footnote 2 Northern abolitionists furthered their cause through suits in state court, not only by freeing slaves but also by taking advantage of the courtroom as a publicity tool.Footnote 3 Southern slaveholders asked their state courts to enforce and extend the law of slavery, and Southern judges obliged by slowing emancipation, securing slaveholders’ interests against attacks from the North, and using their opinions to address Northern audiences.Footnote 4 Whereas Morton Horwitz and others have found that Northern judges favored “active and powerful” commercial actors, Southern appellate courts appear to have resisted legal and economic change, in favor of supporting the “the hierarchical order of slavery.”Footnote 5 Judges interpreted and enforced fugitive slave laws and the fugitive slave clause of the Constitution, freed slaves traveling in the North, refused to recognize slave emancipations in other states, and prohibited slave owners from freeing their slaves.Footnote 6 Federal courts also weighed in, developing a jurisprudence friendly to slaveholders, which ultimately resulted in the Supreme Court's 1857 decision in Dred Scott v. Sandford.Footnote 7 These legal confrontations, historians maintain, led to tremendous divergence of law in the North and South and an increasing reliance on arguments grounded in “higher law” rather than on statutes or the Constitution.Footnote 8 Nisbet's secession ordinance, based in powers held by the “people of the state of Georgia” rather than in constitutional provisions provides a case in point. In this story, the law derived its greatest significance from the role it played in splitting North and South.Footnote 9 In a choice between slavery and legal nationalism, slavery appears to have won out until after the Civil War.Footnote 10
This article challenges that familiar story or at least it argues that the story obscures a vital aspect of American legal history. Alongside the law and politics of sectionalism, another force quietly sustained intersectional cooperation. It too could be found in the career of a lawyer like Nisbet. Despite seemingly intractable differences with Northern lawyers, he and other elite Southern lawyers professed and demonstrated commitment to a vision of legal practice and decision making that they shared with their Northern colleagues. This vision was rooted, not in commitments to slavery, free labor, or economic development but rather first, in legalism, and second, in commercial legal practice. Lawyers demonstrated their commitment to legalism by adhering to their profession's technical rules and customs, which they learned from cases and treatises and from their professional community. Lawyers agreed on the form and mode of legal argumentation—it needed to be precise, accurate, and backed up by learned citation—even when they disagreed substantively. For them, these forms and practices had inherent value. Although a legalistic perspective encouraged lawyers to invest significance in the most abstruse legal issues, much of the work of an elite nineteenth-century lawyer revolved around more routine commercial and financial matters. This focus on commercial routine also linked the national legal community. Lawyers capitalized on the flexibility and portability of their legal forms to support clients engaged in commercial activity from finance to slave agriculture.
A legalistic culture and the commercial work to which it was frequently applied linked lawyers across sectional boundaries. It appeared in out-of-court debt collection, before trial judges, and in appellate court decisions, even those that explicitly affirmed slavery. Partially insulated from many of the political and economic conflicts of the Antebellum era, it allowed Southern lawyers to serve as intermediaries between North and South. Northern merchants and manufacturers sold their goods on credit to Southern merchants, giving plantation owners the opportunity to live a luxurious life on the backs of their slaves, and Southern lawyers collected when Southerners failed to pay their bills. More generally, lawyers supported a commercial environment structured by law, setting ground rules and smoothing out complications. A legal and financial infrastructure staffed by lawyers thus facilitated Northern investment in the South before the Civil War. Whereas prominent but rare proslavery jurisprudence acted as a divisive force in Antebellum Southern legal practice, mundane but common commercial legal actions strengthened legal and financial ties with the North. Working across jurisdictions, lawyers cemented and effectuated the work of treatise writers and legislators. They supported slavery in subtle but important ways.
The career of E.A. Nisbet illustrates the profession's role as commercial facilitator as well as the heated legal politics that eventually (if temporarily) destroyed commercial ties and lawyerly interchange. The simultaneous pull of each pole existed in many forms, even in the life and work of a single lawyer. Nisbet was born in Georgia in 1803, studied at the Litchfield Law School in northwestern Connecticut, and then returned home, where he worked as a lawyer and judge until he retired in 1870. Throughout his life, Nisbet strongly supported slavery. He grew up in a slave-owning family, married the daughter of a plantation owner, and owned slaves himself. After the Civil War, he remembered slavery fondly and argued that all Southerners—including slaves—were better off before the “rapacity and injustice of the Radical Party” had turned his society on its head. Yet despite his role in secession and his allegiance to the Lost Cause, during his legal education, service as a judge on the Georgia Supreme Court, and work as a private lawyer, Nisbet ascribed to a legal culture that he shared with Northern lawyers. This article follows Nisbet's legal career from its beginning at the Litchfield Law School where his teachers instilled the value of legalism, to his time on the Georgia Supreme Court where he demonstrated his commitment to professional legal argumentation, and to its end when, as a private lawyer, Nisbet and his partners applied their legal tools to commercial debt cases. Nisbet's career reveals the powers and limitations of the legal culture to which he ascribed.Footnote 11
Education
In the early nineteenth century, when Nisbet went to law school, nearly every lawyer in the English common law world learned by apprenticing. The tradition, which dated back to the twelfth century, required would-be lawyers to prepare for practice by working alongside experienced attorneys, reading treatises, and observing court proceedings.Footnote 12 Although loathed by most clerks, the apprenticeship form of legal education faced little competition. By the time Nisbet decided to pursue law in 1823, America's brief experiments with school-based legal education had mostly failed.Footnote 13 Most lawyers continued to learn from the same treatises, but they did so while working alongside practicing lawyers. Nisbet, however, elected to attend the Litchfield Law School, which educated roughly 1,000 American lawyers in northwestern Connecticut from 1784 to 1833.Footnote 14 There, he and other Southern lawyers learned to become members of the legalistic culture that would link them to their Northern colleagues.
Litchfield seems an unlikely place for a Southerner to study the law. Connecticut was far from the South, especially in the early nineteenth century. Yet Nisbet and students like South Carolinian William Dickinson Martin braved difficult trips to make it to the school. In 1809, Martin's journey took 26 days. Before he arrived, he had crossed a broken bridge on a horseback trip to Richmond, Virginia; sold his horse at a cut-rate price; taken a stage coach from Richmond to Paulus Hook, New Jersey; traveled by boat to New York; traveled by another boat to New Haven; and finally ridden a stage coach 36 miles to Litchfield. Martin, however, was not the first South Carolinian to make the trip. More than a dozen others had attended Litchfield before him, including John C. Calhoun, who wrote Martin a letter of introduction to the school's founder, Tapping Reeve.Footnote 15
Connecticut was not only separated from the South by hundreds of miles but also by a drastically different way of life. Martin, Nisbet, and other Southerners left behind their plantation homes and an economy built on slavery for Connecticut, a state in which gradual emancipation had begun in 1784, and where men worked as small farmers or artisan manufacturers. Martin noted in his journal that he encountered white servants for the first time on his trip to Litchfield. There had been little need for white servants in South Carolina. When Martin left for Connecticut, his state had just been forced by Congress to end its 4 year experiment in reopening the overseas slave trade, during which 40,000 more Africans had been enslaved and brought to its shores to fill the demands of cotton planters.Footnote 16 In 1810, enslaved people made up nearly half of the state's population. Nisbet's Georgia home was little different. When Nisbet traveled to Litchfield, more than 40% of his state's population was enslaved. Nisbet himself had grown up surrounded by African Americans owned by his family, and he held an idyllic vision of Southern slave society. His father's slaves, he recalled, “were part and parcel of the family.” Nisbet claimed that he had “loved them all” and believed that “they were happy and faithful and attached.” Nisbet, like Martin before him, had not come to Litchfield to challenge an economic institution to which he was personally, financially, and ideologically devoted but rather to learn to practice law in a Southern slave society to which he would return.Footnote 17
Once in Connecticut, Martin, Nisbet, and other Southern students steeped in slavery learned from two teachers, Tapping Reeve and James Gould, who opposed it.Footnote 18 Like the English jurist William Blackstone, Reeve found slavery “repugnant to reason … and the principles of natural law.”Footnote 19 Because slavery did not exist in the common law, Reeve argued it could only be established through positive law. A government, in other words, had to ratify the institution with legislation.Footnote 20 Applying this standard, Reeve believed that Connecticut had never officially established slavery. The state regulated it like other vices, but never gave it the approbation of the law. Gould, in his lectures, agreed that slavery contravened both common and natural law but, unlike Reeve, maintained that Connecticut's laws regulating slavery, even those that limited the rights of slaveholders, embodied tacit approval of slavery in Connecticut law.Footnote 21
Despite Connecticut's distance and its teachers’ opposition to slavery, Southerners including Nisbet and Martin embraced the Litchfield Law School. Of the 836 students for whom hometown data exist, 225 were from Southern slave states. That 30% of Litchfield's students came from the South reflects the prominence and success of its early Southern graduates and the cross-sectional legalistic culture that allowed lawyers educated in the North to build careers in the South.Footnote 22 Southern students lauded the school and its proprietors. Even John C. Calhoun, who spent many of his years in public life defending, justifying, and working to expand slavery, remembered his time at Litchfield fondly.Footnote 23 In 1810, he wrote to Reeve to recommend a student for admission to Litchfield and to “express his gratitude” for the “many advantages” he had received from Reeve's teaching. John Y. Mason, a proslavery Virginian who had attended Litchfield in 1817, referred to Reeve's lectures as “masterly productions,” and noted the “decided advantage” that Litchfield held over any apprenticeship. In 1822, when Reeve turned 70 and reached the mandatory retirement age for Connecticut judges, a group of his students organized a collection to help support their former teacher, noting “the important services which he has rendered to us individually, as well as to his country, by the promotion of legal science.” Six of the ten men on the organizing committee lived in the South.Footnote 24
Appreciation for a Litchfield education extended beyond nostalgic alumni; Georgians valued the school's reputation so highly that the legislature passed a special act in 1823 to allow Nisbet to join the bar before he turned 21. Litchfield's graduates benefited from a comprehensive introduction to the treatises and cases that apprentices toiled through on their own. This curriculum especially appealed to students in places with fewer established lawyers. Litchfield provided the elite legal education that local lawyers could not. It offered access not only to a national legal network but also to an alumni network with members active in politics and the law.Footnote 25
The ability of Litchfield to attract Southern students and to launch them into successful legal careers in the South illustrates the relatively low importance that both students and faculty placed on the law of slavery as a subject of study and the value that they saw in less controversial legal subjects.Footnote 26 Neither of Litchfield's teachers devoted much attention to slavery in his lectures. A typical student's notebook, composed of more than 1,000 pages of material, included less than 3 pages on the fundamental law of slavery. Instead, Reeve and Gould educated their students extensively on more mundane (and practical) legal subjects. Their lessons included lectures on the technical skills of a private lawyer, the rules of pleading, writs of error, bills of exceptions, evidence, chancery, apprentices, agents, sheriffs, and executors. Slavery merited an entry or two in the index to a student's notebook. Debt collection, in contrast, received significant coverage.Footnote 27 Like the treatises on which they based their lectures, Reeve and Gould's discussions of pleading and substantive law were narrow and technically focused.Footnote 28 Reeve and Gould's lack of attention to the law of slavery may have reflected their reluctance to broach a politically charged subject, but it also indicates that they did not understand opposition to slavery as essential to the profession. Even Reeve, who had argued in his own legal practice that slavery violated the Connecticut Constitution, believed that positive law could legalize a practice he resented.
In place of a moral core, Litchfield offered a technical one. This legalistic perspective classified slavery's problems as political, rather than legal. As long as a simple act of the legislature could authorize slaveholding, slavery did not present interesting or important legal issues. From the perspective of a working lawyer, the law on this question was settled. A difficult question of law, even one involving a seemingly mundane subject such as the law of debt, demanded more explication. This lawyerly view of the legal system, characterized the Litchfield curriculum. Reeve and Gould focused on the private legal rules that would prepare their students to practice in a legal world in which most lawyers earned a living handling commercial issues.Footnote 29
This choice of focus distinguished Reeve and Gould from other early law professors. At William and Mary, the College of Philadelphia, and Columbia, legal luminaries George Wythe, James Wilson, and James Kent conceptualized legal education broadly, offering curricula laced with political theory and philosophy that were intended to position their students to play crucial roles in a young republic.Footnote 30 But such curricula did not tap into the practice-oriented legal culture that attracted students to Litchfield, and they educated far fewer students. Like Nisbet, most would-be lawyers sought a legal education to prepare them for legal practice, one of the few career paths available in the Early Republic that offered the potential of improving one's station in life. As one Southern student put it, he traveled to Litchfield because he knew its education could earn him “an honorable standing in the profession.” Northerners too were drawn to a legal education that focused on the technical rules of law. Such an education seemed the best way to make a “living by it.”Footnote 31
Although Litchfield provides a particularly powerful and (influential) example of the transmission of the norms that bound together the American legal profession, its legalistic focus does not appear to have been unique. The “practice-centered” education of apprentices focused on the technical workings of the judicial system. When apprentices had time to read, they relied on many of the source cited in Litchfield's lectures. References to English texts such as William Blackstone's Commentaries, the writings of Lord Coke, and William Hawkins’ Pleas of the Crown found in Litchfield student notebooks also appeared on the reading lists of apprentices. In the early nineteenth century, such English legal texts made up the bulk of early American legal literature.Footnote 32
These English texts devoted passing, if any, attention to the fundamental law of slavery; instead, like the lectures Reeve and Gould derived from them, they concentrated on private legal issues. During the nineteenth century, a growing body of United States legal texts, including those written by Reeve and Gould, exhibited the same tendency.Footnote 33 Justice Story's Commentaries on the Law of Bailments (1832), which covers law governing the transfer of certain types of property, was typical. In that work Story analyzed cases across jurisdictions, and he treated the law of slavery only incidentally, discussing bailments cases involving enslaved people alongside those involving things such as boats.Footnote 34 For a lawyer schooled in legalism, the category of bailment was more important than that of slavery. The focus by legal writers on widely applicable formal legal rules was encouraged by the relatively small American bar. An author hoping to sell more than a few copies of his work needed to aim for a national audience.Footnote 35 As the preface to Reeve's treatise put it, his goal was “to render the book … equally valuable to all parts of the country.”Footnote 36 Treating slave law like any other form of law made financial sense.Footnote 37
The national focus of American legal literature (and education at Litchfield) helped emphasize the legalistic and technical aspects of American legal culture. In the early nineteenth century, federal courts still held relatively limited jurisdictional power; only in 1816 did the Supreme Court assert its authority to review state court decisions on federal law, and expansions of federal jurisdictional power still faced significant opposition. Law differed, sometimes substantially, from state to state, as did bar admission standards. Moreover, communal rules continued to govern many legal proceedings. In the South, local judges sometimes ignored legal norms in favor of informal standards that credited the opinions of those formally excluded from the justice system. Nevertheless, students and lawyers embraced a nationally focused, technical legal education, believing that it prepared them for legal practice. A lawyer reading a commentary or treatise aimed across jurisdictions could not be sure the arguments he read would stand up in his local court, but he would be steeped in the forms and modes of technical legal argumentation that he shared with other members of the bar.Footnote 38
Georgia Supreme Court
Nisbet's work on the Georgia Supreme Court, on which he served from 1846 to 1853, illustrates the reach of a legalistic culture. The Georgia Supreme Court is a surprising place to find strong legal links to the North. By the 1830s, white Georgians were increasingly voicing proslavery sentiments in response to abolitionist challenges from the North, which threatened the racial underpinnings of political system that had recently expanded the vote to include poor white men. Although the state was home to a significant number of unionists, its voters’ devotion to slavery and plantation agriculture was clear. Unionists and secessionists premised their disagreements on who best could preserve the institution, and even unionists at the Georgia Convention of 1850 threatened secession under certain circumstances. By the mid-nineteenth century, the cotton economy was again booming, generating even stronger support for slavery from a state with the most slaves and slaveholders in the lower South. For white Georgians, the “laws of nature and of God … sanctioned and recommended slavery.”Footnote 39
Historians have found such sentiments reflected in the jurisprudence of Southern appellate courts. They have observed politicization and divergence from Northern courts, both to secure slavery and to shape doctrinal rules suited to a slave society. Unlike like their Northern counterparts, many Southern judges appeared to have attempted to slow the growth of industrialization, fearing that it would disrupt the Southern plantation economy. Howard Schweber has documented Southern jurists’ reluctance to embrace the movement toward modern negligence doctrine that eased the way for economic innovation in the North. Even the few judges intent on boosting economic development did so as a means to strengthen the Southern slave economy. Southern judges thus appear to have demonstrated a commitment to “[s]ectional politics” and slavery that deeply shaped their jurisprudence. In short, Southern jurists “implemented the pro-slavery ideas circulating in southern culture.” Not until the 1870s, according to these scholars, did Southern and Northern jurisprudence converge.Footnote 40
Scholarship on the Georgia court, labeled by one scholar as “the most conservative antebellum court,” tends to confirm the view of a judiciary intent on defending slavery. Watson W. Jennison, for example, places Nisbet's fellow judge Joseph Henry Lumpkin at the “vanguard of the southern movement promoting proslavery ideology in the legal realm” and labels him the “architect of the state's slave regime.” Timothy Huebner likewise finds that Lumpkin's “preoccupation with social improvement and the creation of an ideal society” based on slavery “often overshadowed his devotion to legal niceties.” Other scholars emphasize the efforts of the Georgia Court to ensure that legal issues generated by railroads did not disturb the Southern social order. In short, the court's jurisprudence appeared to have demonstrated a “sectional perspective,” in which slavery was the key issue.Footnote 41
Although this perspective is clearly present in many of the courts’ decisions, so too is a commitment to legalism: to the forms of legal argumentation that Nisbet and other lawyers had learned as young lawyers. In his time on the court, Nisbet and the other two justices—Lumpkin and Hiram Warner—authored 1,163 opinions. More than 1,000 of these cases involved civil disputes.Footnote 42 Few cases called for the court to settle legal issues that garnered widespread attention from the public or offered clear opportunities for judges to intervene in ongoing political disputes.Footnote 43 Eighty percent of the court's cases did not explicitly involve enslaved people. The cases instead mostly dealt with the legal rules governing suits and economic transaction in Georgia: Were account books sufficient evidence in a contract dispute?Footnote 44 Were declarations admissible in a case over a disputed land sale?Footnote 45 Had a litigant failed to follow proper procedures when he did not post security before appealing a suit for breach of contract related to the construction for a mill dam?Footnote 46 Had a creditor followed the proper procedure when he foreclosed against a debtor?Footnote 47
The issues in these cases seemed even more removed from their social and economic context when translated into legal language: “[S]hall the plaintiffs be compelled to go behind the books thus verified by the clerks who kept them, and resort to each of the sub-agents who participated in the transaction and sale of this produce?”Footnote 48 “Is a defendant who is sued, individually, upon a contract which he himself has made with the plaintiff, entitled to appeal from a verdict rendered against him, without giving security, by proving that the contract on which the action was brought, was made for the benefit of the estate, which he represented as executor, and that he was authorized, by the will of his testator, to make such contracts?”Footnote 49 “[Is] a Justice of the Peace, in [Georgia] … a collecting officer … ?”Footnote 50 Were “[t]he admissions of the claimant … good against his title, in favor of the plaintiff in execution, but not in favor of it, in his own behalf.”Footnote 51 In these cases, prosaic legal issues, rather than the social relations of slavery, took center stage. Judges and lawyers understood these cases as presenting technical legal questions that demanded technical legal answers. Such an approach helped screen out the messy, socially grounded disputes that underlay the disputes. Accomplished lawyers could disagree about the proper outcomes in such cases, but they agreed that such disputes were fundamentally about the law.
These decisions helped shape Georgia's law, and formed the backdrop for economic transactions. If, for example, the Supreme Court had upheld the trial court's refusal to admit a creditor's account books as proof of transactions, large-scale businesses using modern accounting techniques would have encountered difficulty establishing legal claims.Footnote 52 More generally, by clarifying rules governing the actions of executors, creditors, and justices of the peace, the court increased the predictability of economic and legal transactions in a slave society. These cases, however, generally lacked the broad political intrigue, clear economic stakes, or direct connection to slavery that attracts the attention of historians.Footnote 53 Nisbet and his fellow judges were not intentionally expanding the rights of slaveholders or explicitly shaping doctrine to accommodate a slave society; rather they were using the rules and language of the common law and early statutory law that they shared with Northerners to resolve questions presented to them by Southern litigants.Footnote 54
Even the roughly 20% of cases that directly involved slavery typically hinged on legal issues in fields other than the law of slavery. For a lawyer such as Nisbet, the question of whether children had been properly granted slaves in a will was a matter of the law of estates.Footnote 55 The question of whether or not a constable followed the proper procedure when he seized slaves to satisfy a debt in foreclosure was a question of debt and commercial relations.Footnote 56 The question of whether the continued possession of borrowed slaves was a “conversion” of property rooted in a rightful owner was a question vested in the fundamental law of property.Footnote 57 Cases such as these relied on the same kind of legal reasoning and dealt with the same legal categories—laws governing executors, contracts, constables, or conversions—that Northern lawyers used in cases about nonhuman property. The approach was similar enough for Northern lawyers and judges to cite the Georgia Supreme Court, even in the 1850s and 1860s. In just one example, judges in Michigan, Pennsylvania, and Ohio, relied on the reasoning of a Georgia case, which outlined the power of the state legislature, even though the reasoning had been applied to a law regulating, among other things, the work of slaves on steamboats.Footnote 58 In the contentious buildup to the Civil War, legal language could be applied not only in divisive but also in unifying ways.
Nisbet's commitment to this uniform approach was so strong that it also appeared in cases in which he and the court assumed explicitly proslavery positions; it can be found, for example, in Neal v. Farmer, an 1851 case brought by Nancy Farmer, in which she sought damages from another slaveholder whose slave had killed her slave. The jury found for Farmer and awarded her $825 as compensation. The defendant challenged the verdict because in Georgia, a plaintiff could not sue for damages in cases that would have been common law felonies, “until the offender [had been] prosecuted to a conviction or acquittal.”Footnote 59 He argued that because his slave had not been prosecuted, Farmer had no right to bring the suit. By the time the case reached the Georgia Supreme Court, it presented the question of whether the killing of a slave qualified as a common law crime. The question was not, as some commentators have written, whether murdering a slave was a crime. Except for two notorious exceptions, it clearly was.Footnote 60 Instead, the case raised the issue of whether the murder was a common law crime; that is, whether there was sufficient precedent in case law for it to qualify as a crime even without Georgia's explicit law on the subject.Footnote 61
For Nisbet, the issue before the court was “of great interest and gravity.”Footnote 62 Neal's argument required him to show that slavery had existed in England before the American Revolution, and, therefore, that the common law against murder applied to slaves in Georgia.Footnote 63 He argued that the existence of villeins, a class of servants who, according to Blackstone, “belong[ed] both they and their children … to the lord of the soil” provided a British precedent for chattel slavery.Footnote 64 In an opinion laced with learned citations, Nisbet and the court disagreed. Nisbet stressed that “the Law of Villenage had gone into disuse in England one hundred and fifteen years before the settlement of Georgia,” and was therefore “no part of the Common Law in 1732.”Footnote 65 Moreover, according to Nisbet, “the unconditional [‘pure’] slavery of the African race, as it exists in Georgia,” differed greatly from ancient villeinage.Footnote 66 In other words, he came to the same conclusion that his Litchfield teachers, Reeve and Gould had: slavery was foreign to the common law. Nisbet made an argument whose building blocks even lawyers with abolitionist sentiments would have to acknowledge.
Nisbet went on to make statements in support of slavery, but in nonbinding dicta. The benefits of the common law, Nisbet wrote, could not apply to both master and slave: “two races of men living together, one in the character of masters and the other in the character of slaves, cannot be governed by the same laws.”Footnote 67 Applying the common law to slaves inevitably would lead to an expansion of rights, and the abolition of slavery. Nisbet felt compelled to frame even these remarks in legal terms. He elaborated on the argument, made by Reeve and others, that slavery required the ratification of positive law; that is that it needed to be officially legalized by lawmakers. According to Nisbet, every time a court in the North enforced a contract for the sale of a slave it implicitly ratified the institution.Footnote 68 Slavery in Georgia, he argued, had been positively ratified by the British Trustees of the Colony in 1751. A slave owner's possession derived from “the original captor,” and Georgia law and the Federal Constitution “confirmed” rather than initiated possession.Footnote 69 In support of these statements, Nisbet cited a pair of cases from the “Courts of Massachusetts.”Footnote 70 Nisbet criticized what he considered to be a confusing use of legal terminology in those opinions, but he agreed with their analysis: explicit statutory law was not needed to ratify slavery.Footnote 71
Despite Nisbet's ideologically charged conclusions in Neal, his opinion relied on legal language and structures respected by Northern and Southern lawyers alike. That Nisbet's reasoning shared so much in common with the reasoning of his Litchfield teachers, and that he cited Northern opinions as authorities, illustrates the strength and persistence of the legal ties that linked North and South, even in the middle of the nineteenth century. Nisbet's use of legal language not only allowed him to communicate with a Northern audience, it also affirmed his ties to that audience.Footnote 72 For historians who sometimes see legal reasoning as window dressing for decisions driven by proslavery sentiment, this common language lacks significance.Footnote 73 Although support for slavery clearly influenced decision making, historians who overemphasize its influence understate the devotion to legalism that opinions such as Neal represent as well. Northern lawyers could have disagreed with the outcome or legal reasoning in Neal, as did Neal's lawyer, who failed to win the suit on behalf of his client, and so did other Southern judges who came to opposite conclusions about the place of slavery in the common law.Footnote 74 They would have likely agreed, however, on how such decisions ought to be justified. At the same time that Nisbet was attacking the arguments honed by Northern lawyers, he was also affirming his ties to them.
Understanding cases in this way does not justify Nisbet's decisions morally, nor should it lead us to ignore the ideological commitments of the Georgia Supreme Court. But such case law illustrates the way that a lawyerly approach mattered to Southern lawyers, even in politically charged cases. This is not to say that the opinions were neutral, but rather to show that a coherent shared legal cultured allowed for disagreement at the margins.Footnote 75 Perhaps the best evidence of the role that formalism played in the court's decisions is that decisions made by Nisbet and his fellow justices, including some that explicitly involved enslaved people, continued to be cited after emancipation and even as recently as 2015.Footnote 76
Other Southern judges shared Nisbet's legalism. Even scholars who focus on the divisiveness of legal debates over the law of slavery have observed that judges and litigants often relied on legal rules in the slave cases they study.Footnote 77 To a lawyer such as Nisbet, such rules were not merely window dressing. Nisbet and his fellow judges were building a legal framework that they saw as rational, refutable, predictable, and even elegant. Slave law's position as part of this culture did not lessen its power; it increased it. By allowing slavery to function within an established legal framework, Nisbet and other judges affirmed ties to the North and integrated their slave economy into a national legal and financial system.
Commercial Practice
These ties appear only abstractly in appellate cases; they appear more clearly outside of the courts, in Nisbet's day-to-day work as a lawyer. Although this routine work relied on the common law foundations established by formal legal rules, it looked very different. Papers from Nisbet's legal practice offer a rare window into the normally hidden world of the Southern commercial lawyer.Footnote 78 Surviving materials include extensive correspondence with clients, a diary that occasionally recounts his work, account books from his postwar practice, and other materials accumulated during his career as a lawyer. These incomplete sources cannot provide a comprehensive account of Nisbet's legal work, but their insight into the commercial routine of his practice illustrates the important role that Nisbet and other lawyers like him steeped in American legal culture played in facilitating commercial exchange between the North and South.
Nisbet approached his legal work with energy and alacrity. He developed a solo practice, then a partnership with his brother-in-law, Junius Wingfield, and later, a partnership with his brother, James A. Nisbet, and son, James T. Nisbet.Footnote 79 Finally, he established a firm (“Nisbets and Jackson”) with his brother, son, and a third lawyer, James Jackson, which continued after Nisbet's retirement in 1870. Nisbet and his partners worked for their neighbors, particularly wealthy planters, whom they assisted with transactions, wills, and estate management.Footnote 80 They appear to have devoted the bulk of their practice, however, to assisting creditors from outside the county. Nisbet's network of clients extended throughout the South, to other parts of Georgia, South Carolina, and Maryland.Footnote 81 Most surviving correspondence, however, came from creditors who lived in the North, especially in New York, the heart of finance in American commerce.Footnote 82
These clients usually contacted Nisbet because they sought repayment of outstanding loans from debtors in Georgia. For the most part, the loans grew from business transactions in which merchants sold goods to Southern purchasers on credit. Debt was the flip side of Southern material culture. Nisbet worked on behalf of purveyors of musical instruments, hats and caps, “importers of wine, liquors and foreign produce,” dealers in “butter, cheese, &c.,” “Jobbers in Wooden & Willow Ware, Brooms, Brushes, Cordage, Twine, Mats, and French & German Baskets,” “Importers of Brandies, wines and Havana segars, Dealers in fine groceries, and tobacco,” and “Importers & Jobbers of Dry Goods.”Footnote 83 These products allowed plantation owners to project their wealth and power and distinguish themselves from their neighbors; they helped transform “provincial American strivers” into “English country gentlemen.”Footnote 84
As Nisbet's diverse set of clients illustrates, the merchandise and debts that helped sustain Southern plantation culture traveled across sectional boundaries. Just as in other sectors of the nineteenth-century American economy, the risk created by far-flung transactions was mediated by law and lawyers.Footnote 85 Northerners came to Nisbet because they depended on Southern markets and because the national economy depended on debt to function. Scarcity of cash and the Southern agricultural economies’ cyclical nature meant that most Northern businesses sold on credit.Footnote 86 Even in the second half of the nineteenth century, distance hindered collection. In a market full of impersonal and far-flung transactions, businesses encountered trouble tracking down debtors; even when they found them, they could not rely on personal pressure as a means to enforce payment. Moreover, many of the technologies that later helped to speed up communication and regulate the financial markets—credit reporting agencies, national banks, the railroad, and the telegraph—were still developing.Footnote 87 Especially given the unpredictable nature of the market, the work of collection ensured that this debt-fueled economy functioned. And the work of collection was often the work of lawyers.
Letter from B. Douglas Co. to E.A. Nisbet & J.A. Nisbet, October 10, 1857, DRML.
Because the debt collection process was so vital to a functioning economy, creditors printed forms that they used to request the collection of notes. A letter from B. Douglas & Co., reprinted in figure one, is illustrative. The printed portion of the letter contains standard note-collection boilerplate, requesting Nisbet to acknowledge receipt of the letter, “give[] [his] opinion of the prospects for [the note's] speedy collection” and to “collect as speedily as possible.”Footnote 88 The handwritten portion offers more detail, explaining the parties involved “J.H. and J. King,” the debtors, and “Edward Block & Co.,” the creditors, and noting the willingness of the creditors to “settle for a reasonable percentage.”Footnote 89 Other forms like this came from Philadelphia, Baltimore, and elsewhere along with numerous handwritten requests.Footnote 90 The relatively small sums at stake confirm the prevalence of debt collection and the material culture it supported. In 1858, for example, Nisbet received a letter from D. Devlin & Co., New York merchants specializing in selling clothing to men and boys, asking him to redeem a note for just $30.Footnote 91 A standardized legal approach made it possible for creditors to collect across borders, even for small amounts.
Often, the creditor wrote directly, but other customers came to Nisbet from lawyers who were part of the financial infrastructure that generated benefits for slave owners. Attorneys would contact Nisbet, requesting the collection of loans on behalf of their clients, and they not only coordinated the work but also the payment.Footnote 92 Nisbet sent the money he recovered to a lawyer, who would then pass it on to his client.Footnote 93 Work also flowed from collection agencies. Nisbet developed a strong relationship with the New York based Mercantile Agency of Dun, Boyd, & Co. Famous for their later work as credit reporters under the name Dun & Bradstreet, the agency also redeemed debts, and was deeply embroiled in Southern markets.Footnote 94 Nisbet worked regularly for them, collecting, notes held against Georgia residents for New Yorkers.Footnote 95 Referrals from agencies and other lawyers linked creditors with reliable lawyers in distant locations.
Lawyers like Nisbet actively cultivated ties to Northern creditors and their agents, advertising their ability to use not just law but also a meticulous out-of-court approach to debt collection to track down money in the South.Footnote 96 As their correspondence with Nisbet indicates, Northern merchants relied on their lawyers to navigate both the legal rules and the nonlegal obstacles that made debt collection difficult.Footnote 97 Lawyers understood how notes worked and how to redeem them in court, but they also lived in close proximity to debtors and could pressure, bargain, and threaten, something that merchants found difficult to accomplish from a distance.Footnote 98 Lawyers’ standardized approach to debt collection allowed them to work effectively, even with clients hundreds of miles away. Although the legal rules related to debt redemption remained an important backdrop to the work that Nisbet and other Southern lawyers undertook, much of Nisbet's debt collection work took place outside the courts.Footnote 99 Training and practice in legalism had prepared Nisbet to approach the problem of debt collection methodically and made him reliable enough for hundreds of clients to trust him to pursue debtors and make settlements, even away from the watchful eye of a judge. Lawyers like Nisbet thus extended the shadow of the law, handling cases that could have overwhelmed the courts.
Just as his work on the Georgia court had helped tie Georgia to Northern lawyers, Nisbet's commercial practice, premised on the ties of a national legal culture, had a clear place within the context of a national economy reliant on slave production. Recent scholarly work on the history of Southern capitalism has highlighted the importance of the Southern economy to the development of American commerce. We now know that slaveholders pioneered accounting methods, that Southerners “[strove] for technological advancement,” that the Southern economy shared financial links with national and international markets and that it helped to develop these markets, that enslaved people served as loan collateral and were even securitized, that slave-grown commodities were key to the Northern economy, and that the slaveholder demand for products encouraged Northern industrial activity.Footnote 100 In short, plantation owners were among the most successful businessmen in America and the South was “easily one of the richest and most developed regions of the world.”Footnote 101
Slave owners or merchants on the receiving end of a visit from Nisbet may not have appreciated his collection efforts, but without the presence of Nisbet and lawyers like him, Northern firms would have been much less likely to risk lending money to Southerners who desired Northern goods. By facilitating collection, lawyers encouraged Northern businessmen to sell their goods in Southern markets and helped to provide the fruits of Northern manufacturing and importation to Southern slaveholders. Routine commercial collection helped make slaveholding pay even as contentious cases threatening to undermine the institution—and the economic framework that supported it—gained traction in court.
A practice focused primarily on work for businessmen outside the state earned Nisbet a lot of money. According to his relatives, he accumulated a fortune of $100,000 before the Civil War.Footnote 102 This sum put Nisbet in the upper echelon of Southern elites. An average Southern estate in 1860 was worth just $3,978, and an average Northern estate was worth only $2,040.Footnote 103 Although Nisbet's debt collection practice made him wealthy, he viewed this work as a relatively unimportant aspect of his professional life.Footnote 104 The cases in private practice that interested him tended to be those that involved abstruse doctrinal questions, rather than the collection work that occupied a significant portion of his time as a lawyer.Footnote 105 Nor did Nisbet indicate that he saw any connection between his collection work and the maintenance and development of the South's slave society or the American economy. Legalism may have prepared Nisbet to become a successful debt collector, but its focus on difficult questions of law blinded him to the significance of such straightforward work.
War and Reunion
As Nisbet continued his debt collection practice, sectional tensions heightened. Nisbet, however, never hid his proslavery views from Northern clients. He worked closely with Northern merchants in the 1850s and 1860s, even as secession became more likely and as Nisbet grew to support it. Nisbet's ties with the North may have encouraged his early Unionist leanings, but they did not prevent him from vigorously supporting secession when he joined the cause. During the war, Nisbet's correspondence with Northern clients stopped, and his legal practice slowed dramatically. He and other Southern lawyers, however, continued to practice using the same forms and addressing many of the same legal issues as before the war.Footnote 106 Nisbet also took time away from his law office to sell bonds to fund the Confederate government and to run—unsuccessfully—for governor of Georgia.Footnote 107
Despite his support for secession and the Confederate government, Nisbet had little difficulty rekindling ties with Northern clients after the war ended. In August 1865, only three months after the Confederacy surrendered, Nisbet's legal correspondence with Northerners resumed: the collection department of the Office of the Mercantile Agency of Philadelphia wrote, asking about the status of two cases.Footnote 108 Other letters followed: from the Bankers and Government Loan Agents in New York offering to serve as agents, from another New Yorker with an attempt to settle a case, from still others looking to collect money, and from Washington, D.C., following up on a sale of land.Footnote 109 Nisbet's surviving account books were soon filled with the long-distance debt work that characterized his earlier practice. The Civil War did little to change the demand for the legal facilitation of interstate commerce.
Nisbet, who had lost much of his estate during the war, resumed his practice reluctantly.Footnote 110 He was afraid that reckless decisions by newly appointed Republican judges would threaten the legal order that he had helped build.Footnote 111 But the money was still good, and his skepticism turned to pleasant surprise when he began winning cases. He even found the “Radical” circuit judge he argued before in the Federal District Court to be “fair, unpretending and respectable as to ability.”Footnote 112 As it had for most of his professional life, a devotion to legalism offered a lucrative way for Nisbet to overcome political differences. As long as judges and lawyers met the standards of professionalism—as long as they followed legal rules and continued to speak a familiar legal language—a unified American legal culture would continue to function, even without a moral core. As for Nisbet, he rebuilt his practice and left his heirs nearly $25,000.Footnote 113 The sum dwarfed the estate of the average Georgian, who, according to the 1870 census, held only $831 of real and personal property.Footnote 114
Understanding the place of Nisbet's work within the context of a legalistic profession devoted to commercial routine contextualizes the divisive and instrumental law of slavery and economic development on which many scholars focus. Historians as diverse as Morton Horwitz and Peter Karsten are not wrong to give attention to the doctrine-shifting, politically charged cases found in nineteenth-century jurisprudence.Footnote 115 Their scholarship has helped to explain the motivation and effects of legal decision making. Yet these cases were decided amidst many others whose political stakes were much less clear, and whose decisions were often couched in a legalistic language intelligible to lawyers across the country. For every judicial opinion about a runaway slave or slave hiring, judges considered dozens of routine commercial cases, and for every one of those, lawyers collected hundreds of debts. The maintenance of slavery depended on the slave codes and fugitive slave laws that have garnered the most attention from historians, it is true. And there is no doubt that doctrinal shifts helped pave the way for commercial exchange. The day-to-day work of Southern lawyers, however, is a key but long overlooked element of such maintenance and exchange. This work helped keep business moving, even if its practitioners’ legalism prevented them from seeing its significance.
Near the end of his life, when Nisbet described his profession's development, he spoke proudly of the professional bar that he and his colleagues had built. Lawyers, he believed, came to success through “hard work, diligent study, persistent energy” and “integrity.”Footnote 116 They had developed an “esprit du corps of kindliness as well as of pride & honor” and made the legal profession “the most honorable … amongst men.”Footnote 117 Northern lawyers, even those whom Nisbet might have termed members of the Radical Party, would have agreed. Legalism and the embrace of routine commercial practice allowed them to work together and to agree on a conception of the profession's value and its service of right and justice, isolated from its social and economic effects.
