Humanity, Utility, and Logic

in Southern Legal Thought:

Harriet Beecher Stowe's View in

Dred: A Tale of the Great Dismal Swamp


A judge cannot but lament, when such cases as the present are brought into judgment. . . . The struggle, too, in the judge's own breast, between the feelings of the man and the duty of the magistrate, is a severe one, presenting strong temptations to put aside such questions, if it be possible. [I]t is criminal in a court to avoid any responsibility which the laws impose. [T]he court is compelled to express an opinion upon the extent of the dominion of the master over the slave in North Carolina.

Justice Thomas Ruffin, State v. Mann, 13 N.C. (2 Dev.) 263 (1829)

No one can read [State v. Mann], so fine and clear in expression, so dignified and solemn in its results, without feeling at once deep respect for the man and horror for the system.

Harriet Beecher Stowe, A Key to Uncle Tom's Cabin 78 (Boston, 1853)

I had hoped that North Carolina's laws were capable of being so administered as to protect the defenseless. This illusion is destroyed. I see but too clearly now the purpose and object of the law. I cannot, therefore, as a Christian man, remain in the practice of law in a slave state.

Edward Clayton, in 1 Harriet Beecher Stowe, Dred: A Tale of the Great Dismal Swamp 448 (Boston, 1856)

 In 1856 Harriet Beecher Stowe published her second antislavery novel, Dred: A Tale of the Great Dismal Swamp. Appearing four years after her stunningly successful Uncle Tom's Cabin, the novel provides a "sympathizing heart" for "all those who now struggle for all that is noble in our laws and institutions." Like Uncle Tom's Cabin and A Key to Uncle Tom's Cabin, a collection of laws, judicial cases, and vignettes Stowe published in 1853 to provide factual support for her novel, Dred dwelt on the harshness of slavery, focusing on the ways that Southern laws released the passions of slave owners from control and thus licensed the horrors of slavery. An important part of the novel involves a young abolitionist lawyer, who files suit against a man who abused a slave, and the legal decision issued by the lawyer's father, a judge on the North Carolina Supreme Court, which freed the abuser from liability. Stowe explores important issues at the intersection of humanity and law, including the role of a judge in mediating between law and "justice," the role of antislavery lawyers in the Southern legal system, and the role of utilitarian thinking in supporting the law of slavery.

This essay mines Stowe's novel for three purposes. First, it seeks to recover the sophisticated jurisprudential ideas that were circulating in popular culture. Second, it seeks to illuminate how Stowe believed that Southern lawyers and judges reasoned. As a contemporary observer, Stowe has the power to illustrate proslavery legal thought in ways that we cannot now replicate. Her perceptions and critique can point us towards understandings of proslavery thought that twentieth-century scholars, who are not steeped in the same conflict, may not see. Along with depicting Stowe's interpretation of Southern legal thought, the essay categorizes the various ideas that Stowe's actors articulate--legal logic, utilitarianism, and humanity. In that way, I attempt to discern Stowe's understanding of why reform of the law had not taken place and her prospects for the end of slavery. Finally, the essay compares Stowe's depiction of the reasoning processes of Southern legal thinkers to the process that they actually undertook.

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There is a rich literature regarding the roles and interplay of morality, formalism, instrumentalism, and utilitarianism in American jurisprudence. Beginning with the earliest American legal writings, those concerned with law have addressed such fundamental issues as the proper response for judges faced with cases in which the law conflicts with their moral vision of a "just" outcome. In his 1975 book, Justice Accused, Professor Robert Cover reconstructed the legal and intellectual worlds that antislavery judges inhabited in the forty years leading up to the Civil War. Cover found that those judges faced an excruciating conflict, which he labeled the "moral-formal dilemma," between following the positive commands of the United States Constitution and Congress to support slavery and their own moral command, often informed by their religious backgrounds, that slavery violated natural law and the dictates of humanity. Their responses took several forms. Some resigned from the bench; others "elevate[d] the formal stakes"--they advanced justifications based on the threat to society that an antislavery decision posed; others retreated to formalism in their opinions, arguing that their duty to law required that they return fugitive slaves whatever the dictates of humanity, or simply ascribed moral responsibility for their decisions elsewhere.

Many scholars have also wondered whether a judge should issue an opinion dictated by a formalist approach to law? Conversely, should a judge reject legal doctrine and instead issue a decision based on a utilitarian calculus of maximizing wealth or social harmony? Both positions have adherents in contemporary debate and have analogs in American history.

Those questions have also captured the American literary imagination. Several of the great literary works of the nineteenth century, such as Herman Melville's Billy Budd and James Fenimore Cooper's The Pioneers, addressed the dichotomy between "law" and "justice." Both Melville and Cooper addressed the complicated moral issue of whether judges should render decisions that are at odds with their understanding of a "just" outcome. Beneath the nineteenth century's renaissance of major literary figures flowed a host of now-obscure writers who addressed similar issues. William Dunlop's play André broached the almost sacrosanct question whether it was proper for General Washington to order the execution of British Major André for bribing Benedict Arnold. One of André's friends, Colonel Bland, pleaded with Washington to no avail, to spare André from the "iron law of war" because André possessed "every virtue of humanity" and because he was acting "only according to duty." Royall Tyler, a justice on the Vermont Supreme Court and sometime professor of law at the University of Vermont, examined the moral choices made by King Solomon as a judge in his play The Judgment of Solomon. Southern lawyer John Pendleton Kennedy's 1832 book Swallow Barn likewise examined the abstruse science of the law and how its vagaries led to uncertain results. In many cases the literary discussions echoed debates over the boundaries between "law" and "justice" and formalism and utilitarianism appearing in public debate, especially in the period from 1820 through the Civil War when abolitionists debated with proslavery legal thinkers the role that law should play in the institution of slavery.

Stowe subtly treated important aspects of those issues in Dred. However, despite the extensive writings on slave law as well as the renaissance of interest in Stowe in the last three decades, Dred remains understudied. Stowe's novel uncovers the conflict between humane treatment of slaves and the law that enveloped Southern judges and lawyers. Stowe recognized just how constrained judges thought themselves to be by their judicial role--and how unlikely it was that one could expect them to remove their judicial masks while on the bench. At the same time, other actors in the slave system, such as legislators, judges, and lawyers, had little interest--because of their own utilitarian calculations--in restricting slavery. Dred thus represents an abolitionist's answer to the question: how did judges and lawyers act within the slave system.

Part I sketches the story of Dred and Part II introduces the controversy antebellum judges felt between humanity toward the slave and the dictates of law and the Constitution. It begins by discussing the abolitionists' critique of the duties imposed by law, then shifts to Justice Thomas Ruffin of the North Carolina Supreme Court, whom Stowe used as a model for the judge in Dred. Stowe asked why Ruffin, who recognized the conflict between humanity and law, failed to reform the law. She attributed Ruffin's failure to his attachment to his adherence to cold, legal logic. It shifts to the views of other judges and of abolitionists regarding the duties imposed by law. Part III examines the problems of the abolitionist lawyer faced with a proslavery law. To further examine those problems, Part IV discusses three foils Stowe set up in the novel: a proslavery legislator, jurist, and lawyer. The utilitarian focus of the legislator, jurist, and lawyer demonstrated that neither utilitarianism nor formalism offered an adequate answer to problem of the unjust slave law. The final Part examines Stowe's lessons for our understanding of the role of law in antebellum culture.

I. Dred: The Story

Where Stowe's first antislavery novel, Uncle Tom's Cabin, focuses on the "horrors suffered by the slave," Dred focuses on "the moral degradation, the bad feeling, the state of calm and of civil conflict, the poverty and misery of the master." Dred centers on inhabitants of two North Carolina plantations, Canema and Magnolia Grove. The major characters are Nina Gordon, a beautiful though whimsical young woman, heiress of Canema; her brother, Tom Gordon, the harsh, demagogic proslavery politician; their half-brother, Harry, who is the son of their father, Colonel Gordon, and one of the slaves on Canema; Nina's lover, the young lawyer Edward Clayton, owner of Magnolia Grove; and Edward's father, the Chief Justice of North Carolina, Judge Clayton. Surprisingly, the figure for which the novel is named, Dred, occupies only a peripheral role during much of the novel. Dred, a fugitive slave, lives in the Dismal Swamp, where he aids runaway slaves.

Two court cases provide vehicles for exploration of the issues of law and humanity. The first arises when Nina hires out Milly, a slave, to a neighbor, Mr. Baker, for desperately needed cash. When Baker, in a drunken rage, tries to punish a slave boy for a small offense, Milly intervenes. Baker hits Milly, then shoots her when she tries to escape the punishment. When Nina hears of the atrocity, she asks Edward to sue Baker. Edward gladly takes the case and succeeds at trial, winning a jury verdict. He looses on appeal, in an opinion delivered by his father, Judge Clayton, which is modeled on North Carolina Supreme Court Justice Thomas Ruffin's 1829 opinion in State v. Mann. Edward then resigns from the practice of law, and Nina dies of cholera.

Harry's sister, Cora, also falls victim to the law. Cora was taken to Louisiana by Colonel Gordon's sister, Mrs. Stewart; there Cora married Mrs. Stewart's son, George, who emancipated her. When George died, Cora inherited his plantation. But Mr. Jekyl, a lawyer from New Orleans, sues to oust Cora from her inheritance and return her to slavery.

Edward and his sister, Anne, try to establish a school on Magnolia Grove to educate their slaves. Their neighbors attempt to dissuade them, however; a mob attacks and partially burns the plantation. Only the intervention of Edward's friend, the pragmatic lawyer-politician Frank Russell, who opposes slavery in private but supports it in public, stops the destruction. Edward and Anne Clayton soon leave North Carolina for Canada.

II. The Conflicts of the Antebellum Judge

"This is one of those cases which a Court will always regret being brought into judgment--One in which principles of policy urge the Judge to a decision in discord with the feelings of the man." Thomas Ruffin, Draft of Opinion in State v. Mann, 1829

"There is but one sole regret; and that is that such a man, with such a mind, should have been merely an expositor and not a reformer of the law." Harriet Beecher Stowe, A Key to Uncle Tom's Cabin 79 (1853)

"My father, why could you not have been a reformer of the system?" Edward Clayton, in 1 Dred: A Tale of the Great Dismal Swamp, 450 (1856)

A. Justice Thomas Ruffin and State v. Mann:

The Conflict Identified


Stowe first addressed the conflict between humanity and law that motivated her examination of Judge Clayton in A Key to Uncle Tom's Cabin. She used Justice Thomas Ruffin's opinion in State v. Mann as a central part of her discussion of the law of slavery in the Key. The case arose from the prosecuted of John Mann for assaulting Lydia, a slave whose services he had hired for one year. Mann hit Lydia when she committed a small offense, and she ran away. Mann "called upon her to stop;" when she did not, he shot her. A jury convicted him of battery, but Ruffin overturned the conviction.

1. Justice Ruffin's Opinion in State v. Mann

Justice Ruffin captured the attention of abolitionists with his extraordinary opinion in Mann, because he released the possessor of a slave from all legal control for harm to her, despite his recognition of the inhumanity of his decision. Ruffin began by lamenting "the struggle . . . in the Judge's own breast between the feelings of the man, and the duty of the magistrate." The opinion presents a mixture of rationales that together release Mann from liability for abusing a slave who was under his control. The issue, just as in Milly's case, was whether the hirer and possessor of a slave could be indicted for the abuse of her.

The opinion employed utilitarian and instrumentalist rationales, as well as ones based on community standards. Ruffin began by observing that no owner had ever been held liable for abuse of a slave. Immediately, Ruffin places responsibility for the decision on others. Ruffin had to follow the community's rule of non-liability, for even if he though differently, "we could not set our notions in array against the judgment of everybody else, and say that this or that authority, may safely be lopped off." He then distinguished the restrictions placed upon parents in correcting children and on masters correcting apprentices. In those cases, the children and apprentices were being taught how to act, but there needed to be limits on the corrections. In cases involving slaves, however, "the end is the profit of the master, his security and public safety; the subject, one doomed in his own person, and his posterity, to live without knowledge, and without the capacity to make any thing his own, and to toil that another may reap the fruits." Such language demonstrates a keen awareness of the harshness of slavery. Ruffin follows a larger goal than his own feelings of morality, however.

Slaves, he knew, will almost certainly perceive their situation as unjust. "What moral considerations," Ruffin asked rhetorically, "would be addressed to such a being, to convince him what, it is impossible but that the most stupid must feel and know can never be true"? To expect a slave "thus to labour upon a principle of natural duty, or for the sake of his own personal happiness," was unrealistic. Here Ruffin adopted a rule because he recognized that slaves would not accept their position in Southern society unless they were compelled to by force. "[S]uch services can only be expected from one who has no will of his own; who surrenders his will in implicit obedience to that of another." Such obedience only arises when the master has "uncontrolled authority over the body." Ruffin's candid statement was extraordinary for its honesty and for its understanding that slaves would not abide by the Southerners' moral philosophy, which taught that slaves should be content with their low place in Southern society. While Southerners might tell themselves that liberty is denied only when people ask for more freedom than they are entitled to, Ruffin understood that slaves would disagree. His understanding led him to articulate rules that subjected slaves to extraordinary control, for the good of Southern society.

Ruffin's question also indicates that he recognized the artificial nature of slavery: that however necessary it might be to society, slavery needed the support of elaborate human institutions, such as law. Even as Southerners increasingly defended slavery as a natural outgrowth of--and necessary to--human society, they also emphasized the need for humans to construct their intellectual and social environment. William and Mary College President Thomas Roderick Dew explained in his Digest of the Laws, Customs, and Manners of Ancient and Modern Nations the necessity of cultivating a respect for institutions and precedent. He contrasted the English and French Revolutions as a way of illustrating the dangers posed by failure to respect the institutions and ideas of the previous generation. In the English Revolution:

[t]he statutes, jurisprudence, traditions, customs, &c., of the realm, were constantly invoked by both parties as the only legitimate judges of the strife. Coke and Selden would have been wholly out of place in the French revolution; they were indispensable to the English. From the dusty records of the Tower, their indefatigable labors drew forth those precedents and authorities that gave the popular party the ascendancy in the argument. . . . Even at the moment when they were clearly transcending all the limits of the ancient constitution, you find them still indulging in the belief that they are justified by the past. Instead of appealing to the fundamental principles of government, they clung still to the laws, customs, and traditions of Old England.

Dew first came to national attentnion with his Review of Debates in the Legislature, a pamphlet evaluating the Virginia legislature's debate over a gradual abolition plan, which became one of the leading proslavery tracts. Gone from the debate over slavery were appeals to inferences based on Locke's state of nature so common in the Revolutionary generation. They were replaced by proslavery writers like Dew with appeals to careful attention to "practical consequences": the "utter destruction" that often follows "the too ardent and confident pursuit of imaginary good." Dew, like Southerners generally, rejected arguments based on Enlightenment ideas of nature in favor of a cultivated, human-created environment, which emphasized the role that institutions played in advancing beyond nature. From literature to fine art to political philosophy, antebellum Southerners showed their admiration for the way that human progress in America had improved upon nature. Moral philosophers in particular celebrated what one might call the constructed conscience--the use of reason, moral instruction, and revelation to arrive at a correct, moral decision. Moreover, they understood that national characteristics were shaped by religious, govermental, and educational institutions--the "whole system" of culture. One needed only to study human history to uncover the evils lurking within Enlightenment ideas of universal equality. Ruffin's position that he must construct a law to teach slaves their proper position in Southern society, which they would otherwise reject, appears as part of the dominant Southern philosophy that emphasized the control of nature through law.

Ruffin followed a rule laid down by the community--which gained further strength because it was dictated by the needs of the community. That led to Ruffin's confession of his "sense of harshness of the proposition." Even though he felt the harshness "as deeply as any man can," and even though he believed "as a principle of moral right, every person in his retirement must repudiate it," Ruffin upheld the master's "uncontrolled authority over the body." For no other rule could "operate to produce" submission of slaves to masters. Ruffin's action was part of the separation between moral and legal duties, which moral philosophers frequently discussed at the time. He echoed an important strain of thought that sought to divide requirements imposed by law from those imposed by morals. The opinion was, moreover, part of the belief that antebellum judges were constrained by duty to uphold the society that surrounded them. It was also the fruit of the utilitarian calculus that governed some American judges.

Ruffin shifted the responsibility for the opinion to political necessity, for the discipline over slaves that Ruffin found so personally revolting "belongs to the state of slavery." That discipline and slavery could not "be disunited, without abrogating at one the rights of the master, and absolving the slave from his subjection. It constitutes the curse of slavery to both the bond and free portions of our population. But it is inherent in the relation of master and slave." Such a justification was a useful strategy for judges who rested authority for their decisions in the sentiment of the larger community.

He then further contrasted the instrumental approach, which justified legal rules based on the necessity to the community, with reasoning based on conscience. "That there may be particular instances of cruelty and brutality where the laws might properly interfere, is most probable." But Ruffin would not even begin such reasoning. In an abstract sense, one could ask about the master's right to discipline the slave. But "we cannot look at the matter in that light." Ruffin rejected such abstract reasoning. He cast himself as a realist, who looks to the situation as it is, not in abstract terms. Grand notions of justice could not be permitted to interfere with deciding cases. Ruffin decided based on what was possible; his decision was driven by a consequentalist understanding of the implications of his decision. The strength of the rule that Ruffin announced--its binding force--came from the need to preserve slave society. That need--the imperative duty the law imposed on Justice Ruffin--forced him to release an abuser from any possibility of liability. The reliance upon utilitarian calculus--what rule will best promote Southern society--appears explicitly in the first sentence of the first extant draft of Mann, where Ruffin acknowledged that "principles of policy urge the Judge to a decision in discord with the feelings of the man."

Close to the end of the opinion, Ruffin explained that four trends were combining to improve the situation of the slave. First, some statutes are protecting slaves; second, the private interest of owners encourages them to treat slaves well; third, the humane sentiments of masters, "seated in the hearts of those who have been born and bred together," and, finally, "the frowns and deep execrations of the community upon the barbarian who is guilty of excessive and brutal cruelty to his unprotected slave." None of those trends occured within the courtroom; all the hope that Ruffin found came from outside it. Indeed, he reaffirmed the need to restrain his own human sentiments. The improvement of the slaves' condition would result, he thought, more from the changes in the community than from "any rash expositions of abstract truths by a judiciary tainted with a false and fanatical philanthropy, seeking to redress an acknowledged evil by means still more wicked and appalling than even that evil."

The centrality of the utilitarian and instrumentalist impulses appeared again in the conclusion. Ruffin felt that as long as slavery exists it is the "imperative duty of the judges to recognize the full dominion of the owner over the slave," unless absolved of that duty by statute. "This we do upon the ground that this dominion is essential to the value of slaves as property, to the security of the master, and the public tranquility." In short, the rule is commanded because it "most effectually secur[es] the general protection and comfort of the slaves themselves."

One of the other leading reasoning styles opposing instrumentalism is formalism. Judicial formalism is frequently defined as a following of precedent, accompanied by statements regarding the importance of logic, to the exclusion of utilitarian or instrumental goals. Some other Ruffin opinions explicitly follow the legal rules laid down by previous generations without looking to "policy." Indeed, as was characteristic of many judges of his generation, Ruffin had a veneration for precedent. In Mann, however, Ruffin felt unconstrained by precedent--there were no North Carolina cases that had decided the issue Mann presented. There was, however, a close adherence to "logical" inferences from established facts. The opinion, thus, represents the triumph of a proslavery instrumentalism, a cold calculation of the benefits from the rule Ruffin adopted and the costs involved in choosing another path.

2. Harriet Beecher Stowe's Opinion of State v. Mann

Stowe took Ruffin up on his invitation to see the "struggle, too, in the judge's own breast, between the feelings of the man and the duty of the magistrate." She detected "the conflict between the feelings of the humane judge and the logical necessity of a strict interpreter of slave-law." (Key 77) Such separation between the judge's sentiment and his legal opinion puzzled Stowe, for she had written Uncle Tom's Cabin with the optimistic belief that she could harness sentimentality to make her readers feel passion and, therefore, undertake radical reform of the law. She explained in the final chapter of Uncle Tom's Cabin that her desire to awaken heated passions led to the novel:

[W]hen [the author] heard . . . Christian and humane people actually recommending the remanding escaped fugitives into slavery, as a duty binding on good citizens--when she heard, on all hands, from kind, compassionate and estimable people, in the free states of the North, deliberations and discussions as to what Christian duty could be on this head, she could only think, These men and Christians cannot know what slavery is.

There was substantial reason for Stowe to believe that she might effectively play on her readers' sympathies. Scottish common sense philosophy, the dominant moral philosophy in Stowe's America, posited that humans had an innate moral sense. Stowe, like many other sentimental novelists of her period, hoped to harness sympathies to effect radical change. But in 1853, when Stowe was writing A Key to Uncle Tom's Cabin, it seemed to her that the changes she sought were not to be and that puzzled her. She asked the question, why?

It was an inhumane coolness, represented by the legal mentality, that led Americans to accept slavery. Stowe contrasted the cold, logical, and strictly legal approach of Anglo-Saxon judges and lawyers with the "white heat of enthusiasm" that ministers, such as her father Lyman Beecher, generated. A reviewer of Uncle Tom's Cabin recognized the conflict between religious beliefs and law. A master would protest "against slavery during the innocent part of life when his soul belongs to God alone." But later, "when society takes him, the law chases away God, and interest deposes conscience." The battle between cold law and hot evangelical religion continued in Dred. Stowe wrote "Even in the soil of the cool Saxon heart the Bible has thrown out its roots with an all-pervading energy, so that the whole framework of society may be said to rest on soil held together by its fibers." [1,264] To maintain slavery, harshness was necessary. Stowe depicted the need for harsh control of slaves through law with vivid imagery:

In the perpetual reaction of that awful force of human passion and human will, which necessarily meets the compressive power of slavery,--in that seething, boiling tide, never wholly repressed, which rolls its volcanic stream underneath the whole frame-work of society so constituted, ready to find vent at the least rent or fissure or unguarded aperture,--there is a constant necessity which urges to severity of law and inflexibility of execution. (Key 71)

Unfortunately, cold law was winning and not just with Ruffin. In the abolitionists' minds, Ruffin's opinion was representative of Southern judges. Stowe accepted Ruffin's assessment that his decision was required by the law. "Men of honor, men of humanity, men of kindest and gentlest feelings, are obliged to interpret these severe laws with inflexible severity." (Key 71) Stowe examined the dilemma between humanity and law in several other chapters of the Key to Uncle Tom's Cabin, using examples from other cases. Her examinations led her to criticize the cold, logical reasoning of the southern judges generally: "It is often and evidently not because judges are inhuman or partial but because they are logical and truthful that they announce from the bench in the calmest manner, decisions which one would think might make the earth shudder and the sun turn pale." (Key 82) In discussing a South Carolina trial for murder of a slave, Stowe quoted extensively from the Charleston Courier, for example. The paper applauded the jurors for putting aside the public feelings, which favored the slave; the threshold of "court of justice" provided the accused master "refuge and safety." "No profane clamors entered there; but legal investigation was had of facts." (Key 98)

Stowe looked to a South Carolina case from the early nineteenth century in her chapter, "The Good Old Times," to demonstrate that there had once been a lesser contrast "between the judge's high and indignant sense of justice, and the shameful impotence and imbecility of the laws under which he acted." (Key 99) In that case, Judge Wilds sentenced a slave owner, John Slater, to a fine of £700 for beheading his slave. In sentencing Slater, Wilds confessed "I never felt more forcibly the want of power to make respected the laws of my country, whose minister I am. . . .You have held the law in one hand, and brandished your bloody axe in the other, impiously contending that the one gave a license to the unrestrained use of the other." (Key 99) She concluded by comparing the American judges to Lord Jeffries, who presided over the infamous Bloody Assizes. The American judges were, for the most part, "honorable and humane men, who have wrested from their natural course, the most humane feelings, to fulfil the mandates of a cruel law. . . . In the case of the American decisions, every form has been maintained. Revolting to humanity as these decisions appear, they are strictly logical and legal." (Key 106)

Stowe's understanding of Ruffin may have increased when she read his letter of resignation from the North Carolina Supreme Court, written in November 1852. He wrote that "I have administered the law as I understand it, and to the ends of suppressing crime and wrong, and upholding virtue, truth and right; aiming to give confidence to honest men, and to confirm in all good citizens love for our country, and a pure trust in her law and magistrates." (Key 79) Such statements seem to have heightened Stowe's belief that Ruffin inappropriately separated his sentiments from his legal decisions.

Even when slaveholders felt passion, however, they failed to act on those feelings. Stowe saw men like Ruffin who were aware of the inhumanity of slave law, but "if they are going to preserve the THING, they have no recourse but to make the laws, and to execute them faithfully after they are made." (Key 71) They recognized that if slavery were to survive, the laws must be severely enforced:

Like Judge Ruffin, men of honor, men of humanity, men of kindest and gentlest feelings, are obliged to interpret these severe laws with inflexible severity. In the perpetual reaction of that awful force of human passion and human will, which necessarily meets the compressive power of slavery,--in that seething, boiling tide, never wholly repressed, which rolls its volcanic stream underneath the whole frame-work of society so constituted, ready to find vent at the least rent or fissure or unguarded aperture,--there is a constant necessity which urges to severity of law and inflexibility of execution. (Key 71)

Stowe came to admire Ruffin's legal reasoning; she thought that "one cannot but admire the unflinching calmness with which a man, evidently possessed of honorable feelings, walks through the most extreme and terrible results and conclusions, in obedience to the laws of legal truth." (Key 77) She believed that none could "read this decision, so firm and so clear in expression, so dignified and solemn in its earnestness, and so dreadful in its results, without feeling at once respect for the man and horror for the system. The man, judging him from the short specimen . . . has one of that high order of mind which looks straight through all verbosity and sophistry to the heart of every subject which it encounters." (Key 78-79)

There was some hope that Ruffin, once he recognized the humanity of the slaves, might modify the law. "So abhorrent is the slave-code to every feeling of humanity that just as soon as there is any hesitancy in the community about perpetuating the institution of slavery, judges begin to listen to the voice of their honorable nature, and by favorable interpretations to soften its necessary severities." (Key 71) But Ruffin did not listen to the voice in drafting his opinion; instead, he applied cold logic to the issue. It was the cold logic that led to so many perverse conclusions:

Every act of humanity of every individual owner is an illogical result from the legal definition; and the reason why the slave-code of America is more atrocious than any ever before exhibited under the sun, is that the Anglo-Saxon race are a more coldly and strictly logical race, and have an unflinching courage to meet the consequences of every premise which they lay down, and to work out an accursed principle, with mathematical accuracy, to its most accursed result. The decisions of American law-books show nothing so much as this severe, unflinching accuracy of logic. (Key 82)

It was Ruffin's coldly logical approach, reliance on precedent, and simple, direct language that won him praise from his contemporaries. In a eulogy delivered before the North Carolina Agricultural Society in 1870, Judge William Graham reported that Ruffin was "accustomed tenaciously to adhere to precedents upon the theory, that the wisdom of a succession of learned Judges, concurred in or tolerated by the Legislature from age to age, is superior to that of any one man, and that certainty in the rules of law is of more importance than their abstract justice."

Stowe concluded her discussion of the law of slavery with a statement that illuminates her fascination with Ruffin's ability to separate his legal mind from his feelings: "There is but one sole regret; and that is that such a man, with such a mind, should have been merely an expositor and not a reformer of the law." (Key 79)

B. Judge Clayton: The Judicial Mask Removed

Judge Clayton, constructed "according to artistic fit," reveals why Ruffin was merely an expositor and not a reformer of the law. [1, xiv] Ruffin appears in a light not possible while he was communicating solely through judicial opinions--through the eyes of an abolitionist explaining to her readers her understanding of Ruffin. Stowe created a character who shows abolitionists' beliefs about how jurists in slave states behaved and how they wrestled with the tensions between the feelings of humanity and the commands of law.

1. Judge Clayton: Portrait of the Mind and Spirit

Judge Clayton, in appearance as well as action, represents the abolitionists' image of a cold, calculating judge. The first hint of his character comes when Stowe introduces the Clayton family. The judge's appearance bespoke "a logical severity of thought." There was much to fear in him; there was "little to hope from any outburst of his emotional nature." [1, 26] His stern, rigidly logical attitudes were apparent in his strictly impartial approach towards domestic life. He never hesitated "to speak the truth nor to acknowledge an error." [1, 26] In Stowe's view, emotion drove one to do justice; coldness suggested a dangerous level of abstraction that did not allow for individual justice. Yet, there might be room for hope; deep beneath Judge Clayton's external coldness was "a severely repressed nature, of the most fiery and passionate vehemence." [1, 26]

Stowe peers behind Judge Clayton's mask and listens to a conversation he has with his wife. He observes that it is "extremely painful" to have to deliver the decision to overturn the jury verdict in favor of his son's client. It is "the doctrine that I feel myself forced to announce" that disturbs him. [1, 439] In response to questioning by his wife whether he must make that decision, the judge responds: "Yes, I must . . . A Judge can only perceive and declare. What I see, I must speak, though it go against all my feelings and all my sense of right." [1, 438] Judge Clayton agrees with his wife's statement that the decision will cause "the most monstrous injustice." But he tells her that "I sit in my seat, not to make laws, nor to alter them, but simply to declare what they are. However bad the principle declared, it is not so bad as the proclamation of a falsehood would be. I have sworn truly to declare the laws, and I must keep my oath." [1, 440] Then Harry, Nina Gordon, and Edward Clayton assemble in the courtroom to hear the Chief Justice stand and announce in "a clear, deliberate voice" the opinion of the court. He delivers the opinion, which he privately acknowledges causes him considerable pain, with his usual coolness. The opinion was taken directly from State v. Mann; Stowe omitted only the statement of facts and a paragraph that announced that treatment of slaves was improving, citing changes in statutes and community sentiments. That omission further suggests the hopelessness of reform of slavery. Shortly afterwards, Edward resigns from the practice of law.

2. The Culture of the Antebellum Judge:

Jurisprudence of the Majority and Formalism


Judge Clayton represented what Stowe and other abolitionists had come to despise: an unflinching support of law over humanity. The ideology that judges must uphold an abstract conception of the "law" and the Constitution had taken strong hold in the antebellum culture of the judges. Justice Joseph Story, who had delivered a proslavery opinion in Prigg v. Pennsylvania, striking down a Pennsylvania statute conferring due process protections on alleged fugitive slaves before they were returned to Southern owners, explained his decision to a friend: "I shall never hesitate to do my duty as a Judge, under the Constitution and laws of the United States, be the consequences what they may. . . . You know full well that I have ever been opposed to slavery. But I take my standard of duty as a Judge from the Constitution." Some may now question Story's commitment to the antislavery cause, and, therefore, doubt his sincerity when he claims to be acting under compulsion. But Story and many other judges acted--and articulated their understanding of their role--as if the scope of their decisions were constrained by consensus interpretations of the law and Constitution.

Some judges presented practical--what we might call instrumentalist--reasons for upholding proslavery law. Judge Nelson, charged a grand jury in October 1851 in the Northern District of New York about the dangers of the rescue of fugitive slaves from a federal officer, who was returning the fugitive to slavery. Nelson warned that the actions were not simply aimed at defeating a federal law. The issues involved the continuation of the Union. "New York may thus redeem herself from the odium of suffering the constitution and laws of the Union to be trampled under foot, and f rom a just responsibility to the other members of the confederacy. If [the people of the Northern states] abide by the constitution--the whole and every part of it--all will be well. If they expect the Union to be saved, and to enjoy the blessings flowing from it, short of this, they will find themselves mistaken when it is too late." In 1858, Judge Conkling, also in the Northern District of New York, bound over for trial several defendants accused of aiding the escape of a fugitive from a Syracuse, New York, magistrate. Conkling thought that the defendants suffered from either "gross delusion or of wanton contempt of law and social order." Conkling thought that the defendants' means were unlikely to end slavery. "If we have nothing better than lawless violence to rely upon for their removal, they will never cease. It is to advancing civilization alone that we can look for their gradual extinction. Wise men understand this, and shape their course accordingly. Bigots and fanatics are too blind to see it, or too impatient to heed it; and in their headlong zeal to redress particular wrongs, real or fancied, regardless of all other consequences, they commit other wrongs more aggravated and intolerable."

Story elaborated further in Prigg v. Pennsylvania the duties of the judge. In order to interpret the scope of the Constitution's fugitive slave clause, Story examined the clause in light of northern states' enactments. To arrive at the conclusion that the act was self-executing, he asked whether a northern state could "dole out its own remedial justice, or withhold it at its pleasure and according to its own views of policy and expediency." Based on the structure of the Constitution and the likely effects of various interpretations given the Constitution, Story reasoned, "consequences like these show that the nature and objects of the provision imperiously require, that, to make it effectual, it should be construed to be exclusive of state authority."

Proslavery commentators also argued for the preservation of law over humanity towards individual slaves. Nehemiah Adams' 1854 response to Uncle Tom's Cabin, The Slavery Question, criticized antislavery lawyers for their failure to follow law:

[A] lawyer is supposed to discriminate between what is specially benevolent and the obligations which we owe to the social compact: from him we expect to learn that an unlawful way of seeking a supposed good is fraught with a destructive principle, before which every thing may be laid waste. That compassion for a fugitive slave which leads one to abrogate the constitution of society is not benevolent, nor does it secure respect for any but radicals--a class of men, in all ages of the world, who have uniformly failed to secure the confidence of mankind.

University of Virginia law professor Henry St. George Tucker, delivering a speech to the entering class of law students in September 1841, elaborated on the idea of lawyers as a bulwark against radicalism. 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." 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."

University of Virginia professor Albert Bledsoe's 1856 treatise, Liberty and Slavery, criticized abolitionists like Senator William Seward of New York and Senator Charles Sumner of Massachusetts for allowing individual conscience to trump the duty to follow the Constitution. The morals of abolitionists, thought Bledsoe, paid too much attention to slaves and insufficient attention to "the obligation of an oath" to uphold the Constitution. Bledsoe believed that abolitionists had to abide by the interpretation of the Constitution made by the Supreme Court. Otherwise, "law and order would be at an end; a chaos of conflicting elements would prevail, and every man would do that which seemed right in his own eyes. The only escape from such anarchy is a just and loyal confidence in the judicial tribunals of the land--is a subjection of the intense egotism of the individual to the will of the nation, as expressed in the Constitution and expounded by the constitutional authorities." And ministers often preached of the duty of following law over sentiment. Presbyterian minister Boardman told his congregation that "the obligation of contracts is not made contingent upon men's feelings." In Northern colleges as well, lecturers explained the importance of following law. In 1851, for example, William Greene told Brown's Phi Beta Kappa chapter that if consience were the judge of whether one should follow the law, government would end. "For in dispensing with the principle of obedience, no matter with what apology, when the power of government has given the rule, it must take away the only means by which government can be preserved."

The writers of legal treatises further elaborated the duties that judges owed to established law. George Sharswood, author of the first treatise devoted exclusively to professional ethics and a law professor at the University of Pennsylvania, wrote in 1853 that "the great fundamental principle for judge and counsellor ought to be, THAT AUTHORITY IS SACRED." Sharswood went on to quote Horace Binney's funeral oration for Chief Justice Tilghman of Pennsylvania to show the respect with which a great jurist held precedent and how Tilghman separated his own moral view from the law:

There is not a line from his pen that trifles with the sacred deposit in his$hands by claiming to fashion it according to a private opinion of what it ought to be. Judicial legislation he abhorred, I should rather say, dreaded, as an implication of his conscience. His first inquiry in every case was of the oracles of the law for their response; and when he obtained it, notwithstanding his clear perception of the justice of the cause, and his intense desire to reach it, if it was not the justice of the law, he dared not to administer it. . . . [He] left it to our annual legislature to correct such defects in the system as time either created or exposed; and better foundation in the law can no man lay.

Justice Joseph Story explained in his Commentaries on the Constitution the basis for construing the Constitution according to the fair scope of its terms. One should not enlarge the government's powers simply because a constitutional restriction is "inconvenient, impolitic, or even mischievous." Such an interpretation would be "a departure from the true import" and would establish a "new constitution." Judges who undertook to decide based on policy rather than law, would be "usurping the functions of a legislator, and deserting those of an expounder of the law." Story explained in the Commentaries that the constitution should be "the same yesterday, to-day, and for ever." Story quoted Chief Justice Marshall's opinion in Osborne v. Bank of the United States to show that judges are narrowly constrained in the scope of their duties:

Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the courts to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge.

The belief that judges--and other political actors, such as legislators--must conform to a consensus understanding of the Constitution pervaded public debate over slavery. The ethical standards of judges, discussed frequently in writings on judging, correlated closely with attitudes expressed in more public fora, such as the United States Senate. In his March 7, 1850, speech supporting the Compromise of 1850, which included the Fugitive Slave Bill, Daniel Webster urged his fellow senators to support the Compromise because of their constitutional duty. "Every member of every Northern legislature is bound by oath, like every other officer in the country, to support the Constitution of the United States; and the article of the Constitution which says to these States that they shall deliver up fugitives from service is as binding in honor and conscience as any other article. . . . [T]he North has been too careless of what I think the Constitution peremptorily and emphatically enjoins upon her as a duty."

3. Antislavery Legal Minds:

The Variety of Responses to Slave Law


While judges and lawyers who supported slavery emphasized duty and law, antislavery lawyers developed several responses. Some, such as Lysander Spooner, believed that the Constitution ought to be interpreted as an antislavery document and criticized judges who did not make such an interpretation. Spooner's 1845 book, The Unconstitutionality of Slavery, argued that judges were under no obligation to enforce positive laws that were inconsistent with natural law. Spooner advised judges to decide according to their own moral vision, even if that vision was inconsistent with the Constitution.

At the same time that abolitionists like Spooner were criticizing Northern antislavery judges, they criticized Southern judges for adherence to law. William Goodell's The American Slave Code in Theory and Practice, published the year after Uncle Tom's Cabin, detailed in more than four hundred pages how the slave laws released masters from liability for injuries done to their slaves. Goodell, who resigned from the practice of law to devout himself to antislavery activism, argued that slavery was inconsistent with fundamental morality and was, therefore, not law. "Is there the wise legislator, civilian, or jurist," Goodell asked, "who does not see and condemn, the Slave Code, the opprobrium of legislation, the disgrace of jurisprudence, the subversion of equity, the promotion of lawlessness, the element of social insecurity, and the seeds of every crime which legislation and jurisprudence should suppress and restrain?"

Others abolitionists such as Wendell Phillips drew attention to the proslavery nature of the Constitution. From the premise that the Constitution was a proslavery compact, Phillips argued that abolitionists ought to remove themselves from the government. Phillips so effectively showed the proslavery nature of the Constitution in The Constitution a Proslavery Compact that Alabama politician John A. Campbell, soon to be a Justice on the United States Supreme Court and later Attorney General of the Confederacy, wrote to Senator John C. Calhoun of South Carolina, that "we might circulate [it] to great advantage excluding a few paragraphs." In two later works, Can Abolitionists Vote or Take Office Under the United States Constitution and A Review of Lysander Spooner's Unconstitutionality of Slavery, Phillips articulated the imperative duty imposed by law on jurists. Jurists cannot, he suggested, decide cases according to their own moral visions, but must follow the law. Because Phillips thought that justice could be achieved only "over the Constitution, trampling it under foot; not under it, trying to evade its meaning," he sought a radical solution: abolitionist judges should resign from the bench and lawyers should resign from the bar rather than administer unjust laws under the proslavery Constitution. Phillips himself pursued that path. Phillips used appeals to humanity to recast the duty imposed by law into a prescription for the radical reform of disunion.

4. Behind the Mask of Judge Clayton:

Judicial Ethics


Within Judge Clayton, judicial duty prevailed over the "feelings of the man." [1, 442] Two days after the decision and Edward's dramatic resignation from the practice of law, Judge Clayton spoke with his son. Judge Clayton accepted Edward's explanation for resignation from the practice of law. "Every man must act up to his sense of duty," the judge acknowledged. [1, 450] Judge Clayton explained that he undertook the acts he believed were necessary from his station. He expressed his reason for supporting the law: it provides security to North Carolina society. "I have often myself pondered the question with reference to my own duties. My course is a sufficient evidence that I have not come to the same result. Human law is, at best, but an approximation, a reflection of many of the ills of our nature. Imperfect as it is, it is, on the whole, a blessing. The worst system is better than anarchy." [1, 450] Stowe identified Judge Clayton with the antebellum moral philosophers who emphasized the need for order in society and the superiority of order over anarchy, as well as the legal thinkers who emphasized duty to the law.

Edward then asks the same question that Stowe asked about Judge Ruffin in the Key to Uncle Tom's Cabin: "[M]y father, why could you not have been a reformer of the system?" [1, 450] The answer makes Clayton appear as a realist. He argued that until there is a conviction in society that slavery is a moral evil, there can be no reform. The lack of moral condemnation of slavery, Judge Clayton thought, was the fault of the church. "The decisions and testimonies of the great religious assemblies in the land, in my youth, were frequent. They have grown every year less and less decided; and now the morality of the thing is openly defended in our pulpits, to my great disgust. I see no way but that the institution will be left to work itself out to its final result, which will, in the end, be ruinous to our country." [1, 450-51]

Stowe maps in wonderful detail why the judges could not break out of their utilitarian, legal reasoning. Judge Clayton could not because of his abstract duty to the law, symbolized by his oath to protect the Constitution, and because of his belief that society was actually better off with the decision he rendered than by doing individual justice to individual slaves, and, as Judge Clayton explains later, because no piecemeal reforms would work. [2, 16-17] Moreover, Judge Clayton believed he was not "gifted with the talents of a reformer." [1, 451] He was not gifted with those talents because he thought in legal terms, which recognized only analytical reasoning, not humanity.

The fictional Clayton tracks closely the historical Ruffin in statements made from the bench, although one can never know how Ruffin felt in private. Stowe has rendered a relatively accurate portrait, one guesses, of how at least some Southern judges thought. Stowe demonstrates herself in both Dred and A Key to Uncle Tom's Cabin to be a perceptive commentator on legal thought.

Judge Clayton--and Stowe also--saw little hope for reform from within. The saga of Milly provided a means for Stowe to answer her own question as to why America had failed to extract itself from slavery. Judge Clayton's final statement emphasized the importance of following the dictates of morality, whether it was expedient or not. "We live here but a few years. It is of more consequence that we should do right than that we should enjoy ourselves." [1, 451]

III. Edward Clayton:

The Dilemma of the Abolitionist Lawyer

The position of the lawyer representing the oppressed client is usually less fraught with moral problems than the position of the judge charged with enforcing an odious law. Nevertheless, some lawyers feel the need to remove themselves from participation in a legal system that treats their clients unjustly. The dilemma Edward Clayton, recently admitted to the North Carolina bar, faced when his father overturned the jury verdict in favor of his client presents an opportunity for Stowe to explore the relations between lawyers and humanity.

Stowe used Edward to explore the role that concern for humanity plays in lawyers' advocacy. "Reading the theory is always magnificent and grand," Edward thought. "'Law hath her seat in the bosom of God; her voice is the harmony of the world.'" But in discussion with a friend, lawyer Frank Russell, Edward worried about practice. "Does not an advocate commit himself to one-sided views of his subject and habitually ignore all the truth on the other side?" [1, 16] Russell recognized that Edward's conscience would prevent him from entering politics. "It's what I call a crotchety conscience--always in the way of your doing anything like anybody else," Russell said. [1, 16] The influence of Edward's conscience on his legal training was particularly evident when Stowe contrasted him with his father. Edward "was ideal to an excess; ideality colored every faculty of his mind, and swayed all his reasonings, as an unseen magnet will swerve the needle. Ideality pervaded his consciousness, urging him always to rise above the commonly received and so-called practical in morals." While Edward relished the "the theory of the law," he failed in the application of legal principles. Edward's father was "obliged constantly to point out deficiencies in reasonings, founded more on a keen appreciation of what things ought to be, than on a practical regard to what they are." [1, 27] Because of the differences in conscience, Edward and Judge Clayton "could never move in the same orbit." [1, 27]

Nevertheless, Edward completed his legal education. His first case was the suit against Milly's abuser, which he undertook with "great energy and enthusiasm." [1, 371] Here was a case that corresponded with his conscience. He said:

It is a debt which we owe to the character of our state, and to the purity of our institutions, to prove the efficacy of the law in behalf of that class of our population whose helplessness places them more particularly under our protection. [1, 372]

The case became a spectacle in the county seat where it was tried. In conversation, lawyers around the courthouse raised the question of whether law or humanity would prevail in the case. There were strong arguments on both sides. "Clayton has mounted his war-horse, and is coming upon us now, like leviathan from the rushes," said Edward's friend Frank Russell.

After explaining the problems that most cases presented to Edward's conscience, Russell turned to the other side of the equation: "[H]e is sure to get the case, though I'm not clear that the law is on his side, by any means. . . . In fact, I'm pretty clear it isn't." [1, 374] The law was not on Clayton's side because Baker "hasn't really exceeded his legal limits." Nevertheless, Clayton still had a good chance of success. He would make a good speech that played on the$jurors' sentiments, Russell thought: "[B]ecause you see, it really was quite an outrage; and the woman is a presentable creature. And then, there's the humane dodge; that can be taken, beside all the chivalry part of defending the helpless." [1, 374] Passion alone might propel the case with the jurors, who did not think in strictly legal terms. Clayton had the power to mystify--to contort the law to his moral vision. Russell said, "When a powerful fellow mystifies himself, so that he really gets himself thoroughly on to his own side, there's nobody he can't mystify. . . . I shall believe him while I hear him talk; so will you; so will all the rest of us." [1, 376]

The case proceeded as predicted. Edward established the limits that ought to be placed on absolute power in his speech to the jury:

The good of the subject is understood to be the foundation of the right; but when chastisement is inflicted without just cause, and in a manner so inconsiderate and brutal as to endanger the safety and well-being of the subject, the great foundation principle of the law is violated. The act becomes perfectly lawless, and as incapable of legal defense as it is abhorrent to every sentiment of humanity and justice. [1, 378]

Clayton touched the sentiments of the jurors and they returned a verdict in his favor. However, the spectators realized that when the case was appealed to the Supreme Court, where law rather than passions ruled, there might be a different result. They were right.

After his father finished reading his opinion, Edward stood and asked to address the court:

I hope it will not be considered a disrespect or impertinence for me to say that the law of slavery and the nature of that institution have for the first time been made known to me to-day in their true character. I had before flattered myself with the hope that it might be considered a guardian institution, by which a stronger race might assume the care and instruction of the weaker one; and I had hoped that its laws were capable of being so administered as to protect the defenseless. This illusion is destroyed . . . . I see but too clearly now the purpose and object of the law. I cannot, therefore, as a Christian man, remain in the practice of law in a slave state. I therefore relinquish the profession into which I have just been inducted and retire forever from the bar of my native state. [1, 370]

Edward provided an answer to Stowe's question about the proper role of lawyers in Southern states. They must remove themselves from the practice of law.

Salmon Chase provides an instructive counterpoise to Edward, and his views suggest how abolitionist lawyers might respond to law. Chase, who was a prominent abolitionist lawyer in Ohio before his election as Governor and United States Senator, argued the case of Peter Van Zandt, a former slaveholder, who was charged with violating the Fugitive Slave Act of 1793 for transporting several fugitives, just as Senator Byrd had transported Eliza and her child Harry in Uncle Tom's Cabin. When Chase left the courtroom after arguing the case, an Ohio judge remarked, "[T]here goes a young man who has ruined himself today." Chase appealed to the Supreme Court, which "utterly ignoring argument and justice," as Stowe phrased it, decided the case against him. After the Civil War, Chase was appointed to the United States Supreme Court, which Stowe considered "one of those rare dramatic instances in which courage and justice sometimes bring a reward even in this life." For Edward, however, there was no reward in the legal profession.

Judge Clayton's discussion with Edward regarding his decision to leave the practice of law reveals the limited options available to a Southern abolitionist lawyer. When told by Edward that he resigned based on "the deepest and most deliberate convictions of my conscience," the judge approved of the decision, because Edward "could not do otherwise." The judge then asked whether Edward could continue to be a slaveholder and Edward told him that he was retaining ownership only "as a means of protecting my slaves from the cruelties of the law and of securing the opportunity to educate and elevate them." [1, 449] Even this might bring Edward into conflict with the law, however. "If there is any reasonable prospect of having the law altered, I must endeavor to do that," Edward responded. The judge probed further by asking what if there were no way to repeal the law without uprooting the institution. Here the judge may be seeking an answer to his own doubts about how to respond to slavery, as much as questioning his son. Edward's answer is unsatisfactory to the judge, however. Edward seeks individual justice for the slave, whatever the consequences to Southern society: "I say repeal the law if it do uproot the institution." [1, 449] That approach, so characteristic of abolitionists, found disfavor among proslavery politicians, who often emphasized a utilitarian balancing of benefits and harm in deciding political issues.

Edward's discussion with his friend Frank Russell further contrasts Edward's abolitionist ideas with those of more moderate antislavery lawyers. Russell agreed with Edward that slavery was wrong, but thought there was little he could do to end it. "You see," Frank explained, "our party can't take up that kind of thing. It would be just setting up a fort from which our enemies could fire on us at their leisure." Frank, nevertheless, hoped that someday he might do something to reform slavery. [2, 102]

IV. The Utilitarian Calculus of Proslavery Politicians, Judges and Lawyers

The antislavery Edward Clayton and Frank Russell have complements in Dred. Opposing them are the proslavery Judge Oliver, Representative Knapp, and lawyer Mr. Jekyl. Stowe uses those complements to show how proslavery politicians, judges, and lawyers reasoned.

A. The Proslavery Lawyer: Mr. Jekyl

Stowe examines the utilitarian views of proslavery lawyers through Mr. Jekyl. Jekyl is a lawyer from New Orleans who comes to announce to Tom and Nina Gordon that they have inherited an estate from their aunt. Mr. Jekyl, who had performed legal work for Colonel Gordon, tells a complicated story to Tom and Nina. Colonel Gordon's sister, Mrs. Stewart, inherited an estate from her husband. Their son, George, in turn, inherited from her. George married a "handsome Quadroon girl," Cora, who was Harry's sister, and took her to Ohio, where he executed a deed of emancipation. [1, 72-73] When George died, Cora inherited the plantation. [2, 67] Then an overseer who had been dismissed by Cora for his abusive treatment of the slaves told her story to Mr. Jekyl. He found that the emancipation deed was ineffective in Mississippi and, therefore, that Tom and Nina were the heirs to the estate. The havoc wreaked by Jekyl's interference was great. Cora took the children and ran away to Cincinnati, but they were recaptured. She then murdered her children, so that they might escape slavery. [1, 426-27; 2, 67] Without Jekyl's intermeddling, it is likely that no one would ever have discovered that Cora and her children were slaves.

Jekyl's callousness illustrated the proslavery legal mentality. Stowe allowed him to speak on more general issues of law and theology and to show the connection of law to theology and of the centrality of utilitarian calculus to both. Jekyl spent his leisure time reading theology, particularly that focused on the nature of true virtue. "This, he had fixed in his mind, consisted in a love of the greatest good." He believed that "right consisted in creating the greatest amount of happiness; and every creature has rights to be happy in proportion to his capacity of enjoyment or being." Jekyl demonstrated that one who was immersed in formal law and theology long enough could no longer see humanity; the cold, rigid reasoning of law and Presbyterian doctrine overcame his feelings. His mind had been "petrified into such a steady stream of the consideration of the greatest general good, that he was wholly inaccessible to any emotion of particular humanity." [1, 210]

B. The Proslavery Judge and Politician:

Judge Oliver and Representative Knapp


Edward tries to stay on at Magnolia Grove even after resigning from practice, but his decision to leave is hastened by two visits to his plantation. The first comes from several distinguished proslavery neighbors, including Judge Oliver and Mr. Knapp, a North Carolina representative to Congress.

Judge Oliver explains that Edward is violating the law by teaching slaves how to read. When Edward protests that he thought the laws were "a relic of barbarous ages, which the practical Christianity of our times will treat as a dead letter," both the politician and the judge provide a utilitarian rationale to support the slave law. [2, 181] Representative Knapp explains that Edward is mistaken to believe the laws will not be enforced. "Sir, they are founded in the very nature of our institutions. They are indispensable to the preservation of our property and the safety of our families." [2, 181-82] Judge Oliver reminds Clayton that "there must be some individual rights which we resign for the public good." [2, 185] Clayton acknowledges his duty under state law, but finds "equally binding" his "responsibilities for the moral and religious improvement of those under my care." [2, 187]

The visit to Edward's plantation sets up an instructive contrast between proslavery politicians and judges, as represented by Knapp and Oliver, and antislavery lawyers, as represented by Edward Clayton. The Claytons, father and son, are alike in one respect. Neither one cares about the consequences of his act; instead they follow, formalistically, another goal. Judge Clayton seeks legal formalism; his son, religious formalism. The proslavery politicians and judges, however, care only about consequences. They balance their perception of the good of society against fairness to individual slaves. Representative Knapp, a man who has the power to change the law and who is not bound by the formalism that binds jurists, refuses to change the law because that would destroy his society. Judge Oliver, who is acting in a private capacity when he visits Edward and who is not then bound by judicial formalism, likewise employs a balancing of the interests of Southern society against those of Edward's slaves.

Dred posits a hierarchy of rationales. It is a hierarchy of how much one is bound by formalism. At the low end are three proslavery Southerners speaking in private: Jekyl the lawyer and Knapp the politician, neither of whom is bound by formalism, then Oliver the judge, who is bound by formalism only on the bench. All three advance utilitarian reasons for supporting slavery. Next in the hierarchy is Judge Clayton, who is bound by formalism and uses it to support slavery from the bench, while secretly opposing slavery. Together they expose the difficulty of reforming slavery through the legislature or the courts.

Stowe's parade of legal thinkers, from Jekyl, through Knapp and Oliver, to Judge Clayton details the unbreakable chords holding slavery to law. Neither formalism nor utilitarianism offers a solution. There are problems inherent in legal formalism: Judge Clayton's harsh decision is the result. There are also problems with Representative Knapp's utilitarian calculus: holding slaves in bondage for the preservation of Southern society is the result.

A second visit to Edward's plantation comes from a mob inspired by Knapp and Oliver. As Edward's friend Frank Russell explains: "[T]he fact is that our Republic in these States, is like that of Venice: it's not a democracy, but an oligarchy, and the mob is its standing army. . . . The rabble are their hands." [2, 188] The mob burns the school where Anne taught the slaves to read. [2, 188] Edward and his sister realize that removal from the state is the only practicable and legal course, so they move to Canada. Not only could Edward not remain as a practicing lawyer in North Carolina; he could not, as a dedicated abolitionist, remain in North Carolina at all.

V. Connections

With Dred Stowe introduces her readers to important issues in jurisprudence, terrain usually written about as if it were reserved only for men at that time. Dred helps Stowe's readers understand the legal and the moral choices facing actors in the Southern legal system in the 1850s, as well as the constraints that law places on reform efforts. Stowe sought to understand why the brilliant Justice Thomas Ruffin, who sensed the inhumanity of slave law, nevertheless applied it like "elegant surgical instruments" to "dissec[t] a living human heart." (Key 155) Her answer provides a window into a complex world of legal logic, humanity, and utilitarian thinking that encompassed antebellum lawyers, judges, politicians, and antislavery advocates. One could not expect judges to depart from law, even for the most compelling reasons. The power of the constellation of ideas about the sanctity of property, the importance of slavery to the southern community, and the duty to law blocked the alternative jurisprudence of sentiment that Stowe sought. Or, as one might say today, the power of narrative was limited.

Dred offers insights from the vantage of an abolitionist, not a Southern jurist. Therefore, its most direct testimony is about Stowe's ideas regarding reform. Her three antislavery books, Uncle Tom's Cabin, A Key to Uncle Tom's Cabin, and Dred: A Tale of the Great Dismal Swamp, together constituted an abolitionist interpretation of Southern legal institutions. The trilogy present Stowe's vision of her jurisprudence of sentiment, which she had come to realize was unpersuasive with a majority of Americans. But Dred also has implications for understanding how Southern judges decided cases, particularly the interplay of formalism and utilitarianism as modes of judicial reasoning in the late antebellum era. Robert Cover suggested in Justice Accused that antislavery judges responded to cases conflicting with their sentiments in three ways: by elevating the formal stakes by discussing the implications of their decisions, by retreating to a formal upholding of the law, and by ascribing responsibility elsewhere. They did that as a way of reducing their own moral anxiety over issuing proslavery decisions. Stowe, surely a perceptive interpreter of Southern thought, presented a similar interpretation of legal thought to Cover.

Stowe provides a similar but subtley different interpretation of the antislavery Judge Clayton. Where Cover distinguishes utilitarian and formalist responses to proslavery law, Stowe sees them as part of the same legal logic. Occasionally judges broke from their legal tradition. "Like a spring outgushing in the desert, some noble man . . . from the fullness of his own better nature, throws out a legal decision, generously inconsistent with every principle and precedent of slave jurisprudence, and we bless God for it." (Key 72) But such judges were few. "All we wish is that there were more of them, for then should we hope that the day of redemption was drawing nigh." (Key 72) Those decisions, the product of the judges' "voice of their more honorable nature," did "not comment themselves to the professional admiration of legal gentlemen." (Key 71) Those humane judges were not, Stowe recognized, following legal tradition. They were taking what Cover called an ameliorist path, that did not have the respect of more traditional responses. With the abolitionst lawyer Edward, we see how the abolitionist legal mind might operate--how he focused on law as an instrument for justice and how that vision clashed with the cold judicial response. We also see Stowe's despair with the legal system; it is the same despair that abolitionist lawyers felt.

Judges, according to Dred, were constrained by a trio of related principles: their own sense of duty to law, their need to support the society against anarchy, and their perceived inability to make piecemeal reform. The judges' rhetorical response to the inhumanity of slave law was, according to abolitionists, part of a much larger legal ethos that impeded reform. A sense of duty, so common and powerful in the antebellum legal culture of which the judges were a part, exerted greater force on judges than did their antislavery feelings. Clayton coldly followed out to their logical conclusions the consequences of the choices he had to make to chose the one that was law and then he upheld that law, no matter what the consequences to individual slaves.

Judge Clayton's legal response to Milly's case specified the boundary between the domain of the heart and the domain of the cold legal mind. Antebellum Americans recognized that fiction held the power to sway minds; William and Mary professor Nathan Beverly Tucker stated that "in this reading age . . . he who writes a people's books, need not care who makes their laws." But Stowe held out no hope in Dred for reform through the courts, the legislature, or the churches; her pessimistic ending may be a result of her realization that the magical powers of sentimental literature were limited, as the cold Southern reaction to Uncle Tom's Cabin demonstrated.

Dred demonstrates that for a variety of reasons, ranging from the inability of judges to change the law, to the futility of individual action, to the outright opposition of legislators because of their desire to promote the interests of the "community," slavery was unlikely to end. Stowe's treatment suggests why reform was unlikely, as it details Southern legal thought. Stowe captures the principles motivating proslavery legal thought; in the process, she confirms the close connection between law and culture as she contributes to the rich literature on morality, humanity, and utility in America.

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It is a credit to Stowe's realization of the inability of Americans to resolve their dilemma over law and slavery that on February 19, 1861, as the nation lurched towards Civil War, a North Carolinian delivered a speech in the House of Representatives threatening disunion. The congressman, in language reminiscent of Mann in its call for order, reminded his audience that "the Southern people are conservative, not iconoclastic. They cherish the Constitution, and they had no desire to break up the Government, or to change our existing institutions." He was disturbed by calls for Southern states to follow the "laws of the country," for Northerners had not abided by the laws. "Sir," he asked, "who can tolerate abolition lectures on obedience to the laws?" The congressman explained the Southern states' outrage over Lincoln's election. He read from Lysander Spooner's The Unconstitutionality of Slavery to show that "the fanaticism of antislavery zealots has involved the country in the troubles now precipitating its destruction."

The namesake and distant cousin of the man whose judicial opinion calling for a cold response to slavery was a rallying point for abolitionist sentiments stood in Congress to remind Americans of the consequences of failure to abide by the law, much as Judge Clayton had warned his son. "All that has been done by the South has been a mere demand of our rights. We ask nothing more. Duty to ourselves and to posterity imperatively demands of us that we should accept of nothing less," warned Thomas Ruffin. 

to criticize Ruffin for his statement that "the power of the master must be absolute to render the submission of the slave perfect." (Key 71)  

One might depict the reasoning styles and stances on slavery of legal thinkers in Dred like this:

Antislavery Proslavery Formalist Utilitarian
Judge Clayton Judge Oliver Edward Clayton Mr. Jekyl
Frank Russell Rep. Knapp    

Stowe's question, how should judges act when faced with humanitarian rationales, continues to be asked today by those exploring the duties of lawyers, judges, and citizens towards the law.

The trajectory of Edward's career may show how Stowe wanted to abolitionists faced with a proslavery law to react. Edward makes the attempt, as Stowe herself had earlier in life, to correct the sin of slavery through example. In Uncle Tom's Cabin, Stowe had told her readers to "feel right" and "pray"; such actions set an example for others to follow and might influence the direction of political thought and action. By 1856, however, Edward's efforts were as unavailing as Stowe's. The courts, which should have provided justice, coldly denied all claims for humane treatment of slaves. Her answer was that the religious and legal institutions needed reform;

See also (detailing shifting legal rules regarding slavery to keep pace with judges' views of society).

She grouped utilitarian and formalist rationales together under the heading legal logic.

 It was, as lawyer Jekyl argued in Dred, that no one existed in a state of nature--everyone must participate as part of the society, which meant that there had to be subordination of rights to the majority. [Robinson Crusoe]

Lexis search for policy. There were many conflicting obligations, but one leading issue is the role of consequences and utility in deciding the outcome of cases.

Judges also invoked the phrase "duty" to explain the restraints on their latitude in deciding cases. See, e.g., United States v. Rogers, 45 U.S. 567, 571 (1846) ("It is our duty to expound and execute the law as we find it, and we think it too firmly and clearly established to admit of dispute, that the Indian tribes residing within the territorial limits of the United States are subject to their authority . . . ."); Commercial Bank of Rodney v. Mississippi, 12 Miss. (4 Smedes & Marshall) 439, 491 (1845) ("Duty prompts us, when discovered, to follow withsoever it may lead."). But the imperious duty imposed by law upon judges might incorporate utilitarian or instrumental calculations. See, e.g., Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 624-25 (1842) (Story) ("Consequences like these show that the nature and object of the provision imperiously require, that, to make it effectual, it should be construed to be exclusive of state authority."); Wright v. Weatherly, 15 Tenn. (7 Yer.) 367, 380 (1835) ("Such a provision would be fair and equal among the slaveholders themselves; and in relation to a large majority of the people of the state, who do not own slaves, it is imperiously required."). Imperious duty was a phrase invoked to justify a result once the proper result was determined through either instrumental, utilitarian, or formalist means. The distinction between formalism and instrumentalism paralleled the division between common sense and utilitarianism in moral philosophy.

The word duty also appeared--sometimes in conjunction with a variant of imperious--to describe the obligations of judges to follow the law. See, e.g., Commercial Bank of Rodney v. Mississippi, 12 Miss (4 Smedes & Marshall) 439, 491 (1845) ("Duty prompts us, when discovered, to follow withsoever it may lead.").

The most eternal of nature's laws is this, that out of death she brings life.

Herman Melville, Pierre, or The Ambiguities (1852)

Have we the vanity to flatter ourselves that we can annihilate it at a blow?

Thomas R. Dew, Abolition of Negro Slavery (1832)

"When were men in power ready for reform?" Thompson, Debates on Virginia Constitutional Convention, 427.

Stowe tried to link law and morality in Uncle Tom's Cabin by urging reform of the law to bring it into harmony with morality, or, as Ralph Waldo Emerson wrote, "Law cannot make men free; it is men who must make law free."

One important lesson of the lectures was that Americans should follow the gradually evovling law. Phi Beta Kappa lectures and other For similar statements regarding the importance of following law, as opposed to conscience, see

Law Humanity



The role of moral philosophy in legal thought more generally has been understudied. Hoeflich. Sometimes it required a formal result. as in reasoning that certain things are just wrong.

The failure of Uncle Tom's Cabin to end slavery and her understanding of the limitations of sentiment.

Moreover, Dred helps readers understand the growth of formalism in judicial opinions in the years leading up to Civil War. It explores the role of feelings of humanity, formal law, and utilitarian calculations in shaping the Southern response to slavery.

She explains why judges, even while recognizing the inhumanity of slavery fail to reform it and thereby explores the limitations of sentiment in reform. Emotion-based abolition sentiment may be seen as an important factor encouraging the move toward formalism.

Abolitionist lawyers, even abolitionists in general, had to remove themselves from slave society if they wanted to live up to their duties. In that way Stowe contributed to Americans' answer to the question of whether "the system of slavery, as set forth in the American slave code, [is] right?" [1, xiv]; perhaps Dred, which sold more than 100,000 copies, contributed to the sentiment of reformers in the last years leading up to Civil War.

It thus fills out our understanding of how Southern jurists and lawyers reasoned and the relationship of that thought to their culture.

See generally Alfred L. Brophy, The Emergence of the Grand Style in Southern Legal Thought (unpublished manuscript) (assessing sources of law for--and styles of reasoning of--antebellum Southern judges).

Perhaps Judge Clayton is Daniel Webster, whose 1850 speech in favor of the Fugitive Slave Act sacrificed his private antislavery opinion to save the Union. Also, 1830 reply to Hayne is anti-utilitarian (do not say that you want to calculate the value of the Union).

Where Cover catalogs the ways that antislavery judges responded to proslavery law--the retreat to a formalism and the advancement of utilitarian rationales--Stowe depicts those rationales operating within the same person. Utilitarian and formalist elements both work within the same person.

For Stowe, the institution of law, like institutionalized religion, impeded reform; the response to Stowe's call for a domestic, humane, sentimental response to slavery in Uncle Tom's Cabin, was a cold response from both courts and churches. Stowe explained to her readers the reasons why that reform could not take place within the boundaries of established institutions. In the process, she catalogs legal thought.

I have also been the beneficiary of an extra-ordinary group of friends and teachers, who have commented on earlier (many) drafts. They are Bernard Bailyn, Mary Sarah Bilder, Eva Gasser, Daniel Hulsebosch, Bruce Kuklick, Eben Moglen, John O'Keefe, and (especially) Arthur LeFrancois. The Woodrow Wilson Foundation's Mellon Fellowship in the Humanities provided financial support for this essay.

When I presented on those occassions

March 14, 1998 (10:58pm)

Humanity, Utility, and Logic in Southern Legal Thought:

Harriet Beecher Stowe's View in Dred: A Tale of the Great Dismal Swamp

 Alfred L. Brophy*

 Comes now the affiant, Harriet Beecher Stowe, to explain why Justice Thomas Ruffin was merely an expositor and not a reformer of slave law in State v. Mann:

The Cast of Characters

Edward Clayton, Mr. Jekyl,

Abolitionist Lawyer Proslavery Lawyer

Judge Clayton,

North Carolina Supreme Court

Nina Gordon, Tom Gordon,

Abolitionist, Plantation Owner Plantation Owner

Milly, Abused Slave Mr. Baker, Abuser

Frank Russell, Representative Knapp,

Antislavery Lawyer & Politician Proslavery Politician

Judge Oliver,

Proslavery Judge

* Associate Professor, Oklahoma City University, School of Law and Ph.D. candidate (History of American Civilization), Harvard University.

I presented earlier versions of this essay at the Harvard University Colloquium on New Directions in the History of American Civilization in December 1996, and the American Society for Legal History in October 1997. I would like to thank Alan Heimert and Morton J. Horwitz, who commented on it in December 1996, and William W. Fisher and Stephen Siegel, who commented on it in October 1997.

This essay has also been the beneficiary of an extraordinary group of teachers and colleagues. They are Bernard Bailyn, Mary Sarah Bilder, James W. Ely, Daniel Hulsebosch, Bruce Kuklick, Arthur LeFrancois, Eben Moglen, and John O'Keefe. The Woodrow Wilson Foundation's Mellon Fellowship in the Humanities and OCU's Robert S. Kerr Faculty Research Fund provided financial support.