Thomas Roderick Dew and Harriet Beecher
Legal Historians and Social Change
Delivered at Legal History Section Panel, January 8, 1999
Much of our discussion is about legal historians as supporters (or maybe even catalysts for social change)-and certainly historical studies are primary vehicles for those advocating change. But it hasn't always been so. Before the Civil War, legal-historical arguments were often the domain of those who opposed change. And so I'd like to look at the other side of advocacy-and suggest a few ways that legal history has been harnessed to prevent change. I'd like to give two examples regarding legal historians and social change (or their opposition to it), and I'll use the time period I know best, the South in the years leading up to Civil War.
My first example is how legal historians stop legal change (and the lessons we can draw from that)-it comes from Thomas Roderick Dew, who was probably the most important proslavery writer in the 1830s until the Civil War; my second example is how we learn about social change (or why it didn't take place) and what lessons we might learn from that failure. Here I want to mine Harriet Beecher Stowe's obscure 1856 novel, Dred, which is about a judge who opposes slavery in private, yet issues a proslavery opinion.
I. Legal historians as opponents of social change
Thomas Roderick Dew, president of William and Mary and the author of the leading proslavery tract wrote a 600 page Digest of the Laws, Customs, and Morals of Ancient and Modern Nations. His book, essentially a legal history of Western Civilization (originally delivered as lectures to his history class) was dedicated to showing that whatever is, is right. It had extended arguments about the role of protection for property in purchasing English (and later American) freedom, and the importance of legal control in advancing society. Thus, he distinguished the English and American Revolutions from the French. Some of his arguments, I take it, we now think are correct-the role of property is one. Dew's stories justified his ideology that slaves had the amount of freedom they're entitled to. He judged reforms by short-term practicality-and pointed to fear of slave rebellion, a real fear in the wake of Hayti, to ward off abolition plans. That was the truth, as antebellum Southerners understood it, though it certainly is not objective. A very powerful argument for those who seek to conserve, for it shows that here is no reasonable alternative.
Chancellor William Harper of South Carolina praised him: "President Dew has shown that slavery is the principal cause of civilization. Perhaps nothing is can be more evident than that it is the sole cause." Harper styled himself as a legal historian, too; he looked back to the "great republics of antiquity," which "teach us that slavery is compatible with the freedom, stability, and long duration of civil government, with denseness of population, great power, and the highest of civilization." Harper summed up the importance of slavery to Southern society in the final sentence of his hundred page treatise: "Very different indeed is the course of those whose precipitate and ignorant zeal would overturn the fundamental institutions of society, uproar its peace and endanger its security, in pursuit of a distant and shadowy good, of which they themselves have formed no definite conception--whose atrocious philosophy would sacrifice a generation--and more than one generation--for any hypothesis."
We now go back and review Dew's arguments as incorrect-but it's an important reminder that throughout most history, academics have been the defenders, not even expositors of the system. The facts composing our histories and Dew's are the same, but we analyze them differently. Or, as Thomas Clark explained to Union College's phi beta kappa society: "just as the world with all its glorious prospects exists as really in the blackest midnight as it does in the clearest noonday; but we see it according to the condition of the atmosphere." Our perspective has changed now.
Academics have harnessed their position at the podium-as jurists and ministers have harnessed their position from the bench and pulpit-to oppose change. Before the Progressive era (and even through much of it), academics were defenders of the status quo-pro-eugenics, racist, anti-labor. Dew's arguments were part of the conservative defense of American society so prominent in the academy, until relatively recently.
I take it that some of the things legal historians can contribute-a sense of why the law is the way it is; what were the alternative visions that were foreclosed and why were they foreclosed-appear when we look at Dew. Dew's writings won't help understand Congress' powers under section 5 of the Fourteenth Amendment, but they might contribute to our understanding of legal culture and to a system-wide critique of legal doctrine, lawyers, and judges, and modes of legal reasoning-to understanding how, as Dew phrased it, the "whole system" of culture fits together. "Errors that slumber peacefully through one age, may be instantly detected in the next," said an antebellum orator, "because they are looked at from other points of observation." (I. N. TARBOX, AN ADDRESS ON THE ORIGIN, PROGRESS & PRESENT CONDITION OF PHILOSOPHY 4 (Utica, 1843).) And Dew awakens us to those errors of accepting the academic's rationalizations for why change is impossible, a particularly powerful argument in a time when the public actually cared what academics had to say.
Dew's legal history was by no means critical, as Robert Gordon uses the term-he sought no disruption in the status quo-he was the firmest defender of slavery. (Gordon, Critical Histories, STANFORD L. REV. (1996)). He was a "settler" of the law, to borrow a phrase from Eben Moglen. While Professor Gordon may agree with Emerson about the role of the scholar (in Gordon's case the legal historian) is to convince us that "nothing stable is secure," there was a disturbing connection of legal argument with much historical scholarship, justifying and rationalizing. The academy, Emerson told us, held great power to break out of accepted prejudices:
"Here, a new set of distinctions, a new order of
ideas, prevail. Here, we set a bound to the respectability of the law and the church. The
bigot must cease to be a bigot to-day. Into our charmed circle, power cannot enter; and
the sturdiest defender of existing institutions feels the terrific inflammability of this
air which condenses hear in every corner that may restore to the element the fabrics of
the ages." (Emerson, The Method of Nature)
But much more frequently, scholars promoted the continuance of precedents.
One concrete lesson from Dew, is about the inherently conservative nature of legal thought. One of Dew's contemporaries, Professor Henry St. George Tucker of the University of Virginia told law students in 1841, that lawyers are "bred to a love of order; a devotion to settled forms and the supremacy of the law is one of their distinguishing characteristics. The ascertainment of fixed and definite rules of property and principles of Jurisprudence is their hourly occupation." (Henry St. George Tucker, AN INTRODUCTORY LECTURE GIVEN TO THE LAW CLASS AT THE UNIVERSITY OF VIRGINIA 7-8 (Charlottesville, VA, 1841)). Through their training lawyers learned to oppose radicalism. Young lawyers "grope among the rubbish of the year books of four centuries ago, for the precious treasure of the law." From that experience, "we cannot fail to trace the antagonizing principle, to the eternal love of change." (Id. at 8.)
Particularly in the wake of the Fugitive Slave Act of 1850, there were calls for following the law-New York lawyer Daniel Lord celebrated with the Yale phi beta kappa society the role of lawyers (and some ministers) in encouraging the community to follow the law. Lawyers and ministers, Lord said, "are alike conservative in all their feelings and habits; are equally the natural opponents of delusion, disorder, insubordination, and misrule, the friends of law, government, and morals. On them jointly and inseparably society depends, and ever must greatly depend for the establishment, protection, and defense, of its internal principles, its social order and its national advancement." (DANIEL LORD, ON THE EXTRA-PROFESSIONAL INFLUENCE OF THE PULPIT AND THE BAR (New York, 1851)).
The shift from Enlightenment to conservative ideas in the South, from the Declaration of Independence to Civil War, which Dew's writings facilitated, (he lent intellectual credibility in a time when people looked to history for confirmations (if not independent lessons)) was marked by debate in the Virginia Constitutional Convention of 1829-30, where there was debate over property qualifications for voting. "Notwithstanding the lights of our own revolution, and those reflected by the lamp of history, we are now to disregard all, and to pursue a path as yet untrodden, either by prudence or success. . . . [Gentlemen] will be guided by experience, rather than follow the lights of the French Revolution. Lights that shone for a time upon the path of despotism. . . . " The debates, moreover, convey the importance of what is practical in governing what is moral. "The only question that a wise Statesman should ask, is, whether the measure proposed, is best calculated to operate as they really are; and not, whether the measure conforms to certain rules of theoretical perfection, and would be best adapted to a people such as he would have them to be."
Some members of the Convention recognized the extent to which political theory had drifted from the time of Jefferson. Phillip Dodderidge was the boldest defender of Revolutionary era principles:
"In the whole progress of this debate, the name of
Thomas Jefferson, the great Apostle of liberty, has never once been invoked . . . . Then,
the authority of the sage of Monticello would have stood against the world . . . . Then,
was Burke regarded as the enemy of human rights and the firmest defender of aristocracy
and monarchy--but now Burke, Filmer, and Hobbes, judging from their arguments, have become
the textbooks of our statesmen."
Debates of the Virginia State Convention 411 (Richmond, 1832).
II. Legal historians as explainers why there is no change and of alternative visions
Now, having suggested a few lessons of Dew's conservative legal history: it impeded change (and now teaches us about the deep structures of legal thought and the legal profession), I'd like to tell you about Harriet Beecher Stowe, a contemporary of Dew, who explained why there was no change. Her interpretation of how Southern judges reasoned appeared in her 1856 novel, Dred. There she sets up a fictional judge, based on that actual Justice Thomas Ruffin of North Carolina, then asks why Ruffin was merely an expositor and not a reformer of the law?
The judge issues a proslavery decision that absolves a man who abused a slave in his custody from liability for abusing her. And yet . . . yet he understands the "struggle" between the "man and the magistrate." He issues the decision for several reasons: duty to law, belief that some system is better than anarchy; and his inability to make piecemeal reform, for without support in the community, no reform was possible. Moreover, he was not "gifted with the talents of a reformer." I take it has was not gifted with those talents because he thought in legal terms, which recognized only cold, logical thought, not individual humanity.
Despite such grand statements by William and Mary Professor Nathan Beverly Tucker that "he who writes a nations books need not care who makes their laws," the power of narrative was limited. It could only remake so much the nation's responses to the slave law. When the judge tells his son, who has been unable to persuade his uncle (a leading Presbyterian minister in North Carolina)to take action against slavery, that there are others, but they are without hope, Stowe captures the depression, the feelings of futility, that enveloped abolitionists.
The novel, I think, provides an answer of a contemporary observer on why reform did not take place and of the boundary between humane sentiments and law. All of that evidence is useful for understanding the relation of the lawyer and the citizen to judges, laws, and institutions. It illuminates why we had the law we did-and why we are going to continue to have the law we do. Stowe shows herself a subtle interpreter of legal thought and society, which itself helps shatter the received wisdom about women and legal thought before the Civil War.
Legal historians contribute in a direct way by telling us why we have the legal system we do-they may, then, destabilize the reverence for the past (and present) and led us to think that there may be a new future. Emerson captured their spirit that the world could be remade, from scratch, when he told the Dartmouth phi beta kappa society: "Do not believe the past, I give you the universe, a virgin today." Similarly, Thoreau wrote about the Fugitive Slave Act, that we should not abide by precedents:
"It has come to this, that the friends of liberty, the friends of the slave, have shuddered when they have understood that his fate was left to the legal tribunals of the country to be decided. Free men have no faith that justice will be awarded in such a case; the judge may decide this way or that; it is a kind of accident, at best. It is evidence that his is not a competent authority in so important a case." (Slavery in Massachusetts).
And once we understand how legal institutions arose and are perpetuated, we understand more about how to alter those pervasive modes of thought. "The true scholar grudges," Emerson said, "every opportunity of action past by, as a loss of power."