"A revolution which seeks to abolish law, must end necessarily in despotism":
Louisa McCord and Antebellum Southern Legal Thought
Book Review Essay
Richard Loundsbury, ed., Louisa McCord: Political and Social Essays, University of Virginia Press, 1995. $55.00.
In the 1850s, as Americans debated slavery, Southern women produced novels describing plantation life in idyllic terms and obliquely responding to the abolitionists' critique of slave law.(1) One Southern women, Louisa McCord, responded with essays explicitly discussing proslavery law, as well as economic and political thought. Writing in the Southern Quarterly Review, one of the leading Southern periodicals of the time, McCord questioned the results that would flow from the reforms of the law that Harriet Beecher Stowe sought in her novel Uncle Tom's Cabin:
Make your law to interfere with the God-established system of slavery, which our Southern states are beautifully developing to perfection, daily improving the condition of the slave, daily waking more and more the master to his high and responsible position; make your laws, we say, to pervert this God-directed course, and the world has yet to see the horrors which might ensue from it.(2)
The exchange was part of the intellectual world of antebellum Southern women who debated law and legal and political theory, terrain usually written about as if it were reserved only for men at that time.(3) Richard Loundsbury's fine collection of all known works by Louisa McCord will contribute significantly to expanding knowledge about the role of law and legal ideas in the South before the Civil War and should also serve as a means of re-examining the role of writings by non-lawyers in understanding how they viewed law and how those views in turn shape our understanding of their world. It is an important publishing event.
I. Louisa McCord and the Intellectual World of Antebellum South Carolina
Louisa Cheves was born into an affluent South Carolina family in 1811. Her father, Langdon Cheves, who served as director of the Second Bank of the United States, provided an atmosphere that discussed political and social thought, business and religion. Much of her early childhood was spent in Philadelphia, the home of the Second Bank of the United States. In 1829, as debate over slavery was increasing, the family returned to South Carolina. Living there throughout the 1830s, Louisa adopted and contributed to the social thought of the surroundings.(4)
When Louisa married David S. McCord in 1840, she went from a household of business to one of law. Her husband was a leader of the premature South Carolina secession movement in the 1830s, editor for the South Carolina Telegraph, and reporter for the South Carolina Supreme Court. His essays in literary journals examined the effect of law on human society. In a review of Francis Lieber's Manual of Political Ethics, David McCord referred to South Carolina's abolition of primogeniture in 1791. The law, for example, he thought, affected South Carolina attitudes towards property. "It is well known that laws and government not only change the character of a people, but even their moral and domestic feelings, habits and opinions."(5) The law for him contained an important instructive character. For, since 1791, no one had chosen to leave their entire estate to their eldest son.(6)
In his review essay of Francis Lieber's two volumes on Political Ethics, McCord examines the scientific principles that Lieber developed. Showing a fluency with such writers as Locke and Hume as well as his contemporaries like Lord Brougham and William Whewell,(7) McCord's laudatory essay discusses the grand principles of politics--whether the United States is a pure democracy or a Republic, the effect of laws on morals and the importance of virtue to a democracy. From those general principles he concluded--in typical South Carolina fashion--that the "great and cardinal ethical principle in politics . . . of all Americans, should be, to avoid all acts which would weaken, and do every thing that can strengthen this security of rights of the minority from the dangerous and encroaching power of the majority."(8)
Because governments' actions serve as models for their citizens, McCord believed that governments must act according to a set of principles that taught the citizens virtue and respect for minority rights.(9) That was best accomplished when governments acted to uphold their "first and greatest object": protection. He has mostly protection of property in mind there. Public opinion, which had come to exercise strong discipline over governments, insured personal liberty; the "field for tyranny and oppression is now mainly confined to the interests of property."(10) Lieber's writings fit perfectly with McCord's views. The right of property meant nothing less than justice:
Security to property, then, is that which is mostly to be desired from the hand of power, whether vested in one or a majority. "We see, then," says Dr. Lieber, "that protection, in its wide and true meaning not in its narrow sense, signifies nothing more than a prevention of the State, and this protection is but another word for justice, in its broad adaptation, the obtaining and granting of that which every one demands of right, and as a moral individual ought to demand--his due: that is protection of life, limb, labor, property, which includes the owning of things and the acquiring of things."(11)
Many of the themes emphasized in Louisa McCord's essays appear in David's as well, such as the argument that governments must leave their citizens free to become involved in industry, for, as Lieber wrote, private associations "are conscious that they depend upon themselves alone" and thus have "a vigor, keenness and detailed industry, which cannot be expected of the action of the State, if applied to industry."(12) David McCord's essay on the "Navigation Laws" explored the importance of free trade in further depth. Once again he used a book that he adored as a vehicle for exploring his subject. In this case, it was John Ricardo's The Anatomy of the Navigation Laws.(13) The essay opposed the navigation laws, which enabled the ship owners "to enrich themselves at the expense of the community," as the corn laws had "advanc[ed] the interest of the great land-holders at the cost of all others."(14) McCord, in his celebration of free trade, surveyed the history of English navigation laws that required English goods to be shipped on English ships or imposed high tariffs. McCord's fluency with modern economic theory of free trade may have come through his wife. Whatever way the arrows of influence pointed, whether from Louisa to David or not, both husband and wife were writing and presumably discussing fundamental issues in political, economic, and social thought. Their thoughts are important in recovering a context for, and an understanding of, the role that they envisioned for law in regulating society, in promoting the economy, and in ensuring the preservation of their culture.
II. Louisa McCord and a Fuller Conception of Legal History
Twentieth century legal scholars are continually rediscovering the connections of law to larger social thought. But when legal historians ask why was the law the way it was, they often fail to ask the participants what they themselves thought about law. And they particularly fail to ask what non-lawyers thought. We know a (relatively) great deal about legal doctrine in the nineteenth century. There are excellent studies of important aspects of contract, tort, property, and labor law;(15) some explain the development of a particular area in light of surrounding social influences. We know far too little about ideas concerning law in the general public--about the role that law can, does, and should play in promoting economic development and in bringing stability to society.(16) Without a better understanding of those ideas, it will be impossible to trace how those ideas correlate with and influence--or are influenced by--the words spoken and written by judges. In turn, without those understandings, it is difficult to gauge the place of law in the overall life of a people or about how those ideas influence and condition a people's actions. One needs to see the entire picture, the role of legal, political, economic, religious, and social ideas to understand the relative importance of each in contributing to a particular result.(17) For, as Emerson wrote about reform movements, the "movements in reality are all parts of the same movement. There is a perfect chain--see it, or see it not,-- of reforms emerging from the surrounding darkness, each cherishing some part of the general idea, and all must be seen in order to do justice to any one."(18)
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Antebellum American thought about law as one part of a "whole system."(19) In public lectures audiences frequently heard about the ways that the American mind influenced legal development. United States Supreme Court Justice Joseph Story, for example, praised the progress of the law in his 1826 Phi Beta Kappa oration, which sought to "trace out some of the circumstances of our age, which connect themselves closely with the cause of science and letters."(20)
Story traced that progress throughout the sciences and professions, including law.(21) Some lecturers, such as Massachusetts Senator Charles Sumner, saw in the progression the working out of divine providence.(22) The power of prayer to remake the world was a theme of abolitionists like Sumner and Harriet Beecher Stowe. "In the light of Science and of religion, Humanity is an organism, complex, but still one,--throbbing with one life, animated by one soul, every part sympathizing with every other part, and the whole advancing in one indefinite career of Progress."(23)
Those ideas appeared particularly frequently in antebellum college lectures. The lectures, such as Story's, identified the connections between institutions, such as churches and schools, and the law. They were part of the conceptualization of why American was different from Europe. They saw the power of schools, for instance, "to exert so mighty an influence in molding the character, forming the institutions, and shaping the destinies of a thousand millions, yet to be born, between the Atlantic and Pacific."(24) The gradual changes taking place in society were part of the changes in institutions, as Francis Gray told Brown University students in 1842:
A mighty revolution has long been going on throughout the whole of civilized Europe, not a revolution in the forms of government alone, but in the whole structure of society. Slow, indeed, and fluctuating in its progress, but so important in its object and results, that all the merely political revolutions, which have shaken that quarter of the world for centuries, changing dynasties and establishing or subverting thrones and empires, are, in comparison with it, but as the dust of the balance.(25)
The lectures surveyed progress over the millennia to point out connections between broad movements in society and legal institutions.(26) Edward Everett's 1824 Phi Beta Kappa oration at Harvard College, one of the most influential antebellum college lectures and an important precursor to Emerson's 1837 American Scholar, listed the factors that combined to generate a nation's character. Important among those factors were institutions:
It belongs to the philosophy of history, to investigate these causes; and, if possible, to point our the circumstances, which, as furnishing the motives, and giving the direction, to intellectual effort in different nations, have had a chief agency in making them what they were, or are. Where it is done judiciously, it is in the highest degree curious, thus to trace physical or political facts into moral and intellectual consequences, and great historical results; and to show, how climate, geographical position, local topography, institutions, single events, and the influence of the characters of individuals, have fixed the pursuits and decided the destiny of nations.(27)
Similarly, William Kent's 1841 lecture at Union College remarked on the gradual changes in society and the role of law in those changes, for "the changes of our jurisprudence are, probably, to be gradual, and the alterations of our society slowly and gently effected."(28) Kent saw the interaction of many factors leading to gradual change, which he described with metaphors to nature:
Neither in the natural nor in the moral world, is it the system of God to work by single and isolated acts, but by minute, never-ceasing, and, oftentimes, invisible influences, producing consequences, attained by insensible gradations, though vast and astonishing in their final results. . . . [I]t is by the invisible dew, the gentle rain, the gradually tempered breeze, and the mildly increasing sun-beam, that the seasons, insensibly melting into each other, turn the desolation of winter into the verdure and harvests of summer. It was not by the field of Runnimede, the conflict of Marston-Moor, the battle of Bunker-Hill, or the siege of Yorktown, that the English or American character, or even national rights, were formed and molded. They were the work of preceding ages, of the pervading influence of Christianity--of increasing education--of progressive science--of advancing art--and of causes, minute, innumerable and imperceptible as the labours of the insects in the southern seas, whence rise the coral reefs, and the foundations of islands and continents.(29)
Given the recognition by antebellum Americans of the importance of the interaction of legal institutions with other elements of society in the formation of national character, those historical actors seem to invite modern audiences to contemplate the connections of formal law to larger societal movements. Some of the best recent writing on legal history has accepted that invitation.(30) Constitutional histories increasingly recognize that constitutional law develops within the vectors of institutions and ideas.(31) The people inhabiting those institutions and thinking those ideas--such as Louisa McCord--can then be made the subjects of intensive, scientific investigation. Such investigations promise to yield insights into the development of legal thought.
One of the most striking features of American legal thought in the years before the Civil War is the number of times that lawyers explicitly recognized how much law and society are intertwined. Chancellor James Kent, one of the most perceptive commentators on law in antebellum America, for example, recognized the centrality of surrounding custom, of human desires and reason on the law. Kent believed the common law represented the culmination of centuries of progress of ideas of the community. "A great proportion of the rules and maxims which constitute the immense code of the common law, grew into use by gradual adoption, and received, from time to time, the sanction of the courts of justice."(32) The common law then adapted to the needs of American society. When one considered "the influence of manners upon law, and the force of opinion, which is silently and almost insensibly controlling the course of business and the practice of the courts, it is impossible that the fabric of our jurisprudence should not exhibit deep traces of the progress of society, as well as the footsteps of time."(33)
Hugh S. Legaré, who served as Attorney General of the United States in the 1840s, celebrated the common law because of its connections to reason. The common law, he wrote in an essay in 1831 opposing a general codification of the laws, "is said to be reason and the perfection of reason: that is to say, it is the application of common sense, disciplined and directed by certain established principles, to the affairs of men."(34) Legaré contrasted in elegant terms the process by which the common law grew and statutes were interpreted. "[N]o written law ever approaches to perfection, either in respect of theoretical beauty, or practical fitness, until it has been reduced to the form of unwritten or common law--until the refractory and indefinable matter of the original statute, if we may so express it, has been melted down and molded into a more convenient shape, by the plastic hands of the commentator or the judge."(35) In an earlier essay on Kent's Commentaries, Legaré found that civil and juridical institutions are "in a great degree, the work of man, and may be molded, and have been molded into endless varieties of form, to suit his occasions or his caprices."(36) In America precedents were few, especially in property law and "a vast field opened up opened up for speculation and reasoning." That open field required an ability on the part of judges and lawyers to cultivate a knowledge of American customs, just as legislators did. The lawyer who "was at a loss [whenever] 'the file accorded no precedent' would often find himself as much embarrassed in an American court of justice, as in our deliberative assemblies."(37) Americans self-consciously separated themselves from English law and sought a uniquely American law, which would reflect and help to shape American values.(38) The matrix of cultural values included ideas about law; those ideas permeated legal thought, so that ideas developed in the culture became part of formal (judge-made) law.(39)
By its nature, the common law was intertwined with society. The common law required judges to ask the question "what does human experience prove to be the wisest rule which can be adopted?"(40) To answer that question, judges had to take on functions "bear[ing] a very close analogy to the law-making power." The "exigencies of society" and the "ever varying forms into which the transactions of business are thrown" compelled judges to conduct ever more experiments. Those experiments, using experience, observation, and a wide induction of facts, "contribut[e] to modify and to attenuate to a wonderful extent the rules which have been made and the principles which have already been adjudged," wrote Fredrick Grimke, a South Carolina lawyer who emigrated to Ohio, where he founded the University of Cincinnati Law School, in 1847 in his Treatise on Free Institutions. As American society progressed, so did the common law, which explained why cases of "first impression" were as numerous in Grimke's time as when John Marshall and James Kent ascended to the bench in the early years of the nineteenth century.(41)
Supreme Court Justice Joseph Story thought that the law's adaptation was a sign of America's freedom. In contrast to despotic governments, where law "slumbers on in a heavy and drowsy sleep," changing only at the behest of a despotic sovereign, in America Story traced regular progress, "a graduation adaptation of [laws] to the increasing wants of society."(42) Even some of the antebellum literature celebrated the common law's adaptability. In Swallow Barn lawyer and novelist John Pendelton Kennedy created the lawyer Frank Meriweather, who, by warmth of character, appealed to the jurors and judges in the local courts. He was able to work within the common law pleading system.(43)
Judges and politicians understood the connections between popular thought and legal rules. Judges frequently wrote about the need to base legal rules on ethics.(44) They distinguished enlightened America law from the barbaric feudalism of Europe and tried to decide cases in keeping with American, not English rules.(45) Even when they refused to turn moral duties into legal duties, judges showed their concern for the ideas of moralists.(46) Public sentiment, moreover, served as a guide and influence for courts and as a governor of legislatures.(47) Outside of the formal legal circles, there was vigorous debate about the role that law played in reform, about the desirability of legal reform, and the place of law in regulating--or not regulating--American society. That debate had an important and real impact on what happened in the legislatures and in the appellate courts. Looking at the antebellum South, for instance, one may ask how important statute and case law were in shaping the institution of slavery? Or, if one is bold enough, how did Southerners' ideas about law affect the development of the secession movement? The question perplexes even the most perceptive interpreters of the Civil War.(48)
There are fewer essays, however, that explore how the law was perceived by those other than judges. Yet, to understand what the law was, one needs an understanding of the context in which the law was made. It is only when one looks at the role of law as one part of a society's entire outlook, or at the role of law as part of an individual's ideology that one can accurately gauge the significance of legal thought. Without an understanding of the relative significance of legal thought to larger thought, there is insufficient perspective on the importance of law in the life of the mind. That perspective is essential to full understanding of the role of legal thought in the development of America.(49)
That is precisely what McCord's writings allow. She was not a lawyer, but she thought about legal issues. Her writings span the horizon from introspective poetry to drama to political and legal essays on such issues as the role of women in American society, the law of slavery, slavery as an institution, and social organization. One can reconstruct out of her essays some sense of the interaction of law with her ideology and of the importance she assigned to legal institutions in maintaining Southern society.(50)
McCord's writings are vital to recovering the milieu of southern slave law. Her biting essay on Uncle Tom's Cabin and her essays on political thought more generally unveil a world of ideas that is usually hidden. One looks almost in vain for references to McCord in legal literature, for example, even though she wrote widely on law and she was concerned with the role of law in a large sense, the place of law in the entire economy and society.(51) McCord can help us to break free of the notion left to us by the late nineteenth century that legal history is confined to the common law tradition, to move away from writing of the history of the law as though all that existed was judge-made law and the only people who were important to the story were judges and lawyers. For she reminds us that the ideas of the judges and lawyers derived from their surroundings.(52) Much of the legal history that has been written has looked at the development of doctrine. However, there is an entire world of ideas that has been lost by failure to look outside the reporters. In an essay review of a pamphlet that reprinted the Supreme Court's decision in the Passenger Cases, for instance, the Southern Quarterly Review remarked on the relative obscurity of Supreme Court decisions. Had it not been for the Senate's appropriation of money for the pamphlet, which ordered 10,000 copies, the opinion "would have fallen into the hands of only a few judges and lawyers."(53) Those opinions, as the Senate recognized, represented important statements about the Constitution and constitutional theory, which needed to be circulated so that they might redirect public opinion.(54)
McCord's essays are important in recovering the ideas that intermingled with formal law. They illuminate the popular ideologies that served to configure the matrix of judges' ideologies. The influences on antebellum judges included precedent and reason, which included elements of moral and political philosophy, ideas about the lessons that economics and history teach, as well as the judges' religious beliefs.(55) McCord's extensive writings serve as a window into late antebellum Southern thought. One can reconstruct that thought--the ideas drawn from diverse sources in moral and political philosophy, in Southerners' understanding of historical development and contemporary economic theory--from the essays appearing the leading Southern literary magazines and from their fictional literature, speeches on the floor of Congress, and newspaper editorials. A prime virtue of McCord's essays are the opportunity they provide to view the way such ideas cohere and interact inside one person's mind.(56) For abolitionists, we have extraordinary studies of the role that women played in developing the ideas,(57) imagery,(58) and political organizations(59) so fundamental in undermining the bedrock supporting slavery. The remainder of this essay suggests a few ways that McCord's writings related to, responded to, and affected the debate.(60)
III. McCord's Writings and Law
McCord's contemporary Ralph Waldo Emerson wrote in his essays on Nature of the wondrous beauty of stars. Even if they appeared only for one night in a millennium, Emerson predicated that their beauty would be remembered for generations.(61) McCord's writings lack the beauty of such evanescent stars, but they are reminiscent of Emerson's stars that appear only briefly in an otherwise empty night. She draws back the curtain and allows those seeking to peek into the world of the antebellum plantation mistress a fleeting glance. Here, in a volume carefully and finely assembled by the editor, with extensive notes providing biographical and bibliographical data on each of the people referenced in her essays and identifying many of her obscure literary allusions, and handsomely produced by the University of Virginia Press, one can visit with Louisa McCord--slaveholder, political theorist, legal commentator, . . . woman--and understand a bit more of her world and the role of law in it.
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McCord's proslavery thought may be summarized in a paragraph. Freedom is greatest when people occupied the position for which they are best suited, thus ensuring a stable, peaceful community. Because of scriptural, ethnographic, and historical evidence, it appears that blacks are best suited to slavery, not freedom. Consequently, slavery is the best system for ensuring the stability and ultimate preservation of Southern society. Despite some abhorrent behavior by a few masters, slavery is best left to regulation by each master's sentiments, not according to modes prescribed by law. An appealingly simplistic world view and one which served her and her readers well as they formulated constitutional principles. That was the philosophy that nurtured her ideas about law.
Each of those strands relates to McCord's ideas about law. Those ideas encompassed the belief that law should only ensure a basic fairness in market transactions, not to achieve reform of existing social arrangements. Along with that, McCord argued that law should not be held responsible for hardships suffered by people under it, nor that law should be blamed for the moral failings of individuals. Given law's limited purposes, it was absolved of responsibility. Indeed, it would inappropriate to implicate law for mistreatment of slaves, because care of slaves was within the sphere of sentiment, not law. Moreover, she distinguished sharply between the spheres of sentiment and reason. She criticized reformers who sought to alleviate immediate evils, without taking account of what McCord considered were the more remote consequences of their reforms. Together those ideas constituted the intertwined ideas about political theory and law of Louisa McCord.
A. Role of Law in Maintaining "Justice" and Reform
Louisa McCord establishes one of the fundamental tenets of much of her thought and demonstrates the centrality of law to it in the first few pages of her first published political essay, "Justice and Fraternity," which appeared in the Southern Quarterly Review in 1849. That tenet was that political economists, like herself, "ask from the law universal justice not anything more." The enemy in her world, were the socialists, who believed that the "social order exists entirely in law."(62) McCord established a debate, then, around the role that law should play in promoting reform movements, in which one might take the resolution to be: that the law ought to establish only a way of enforcing basic expectations of contract and property rights. She spent the next six years, until declining health hindered her writing, actively engaging in public debate about the slavery, women's rights, and the science of economy, striving for stability against reformers and harnessing law as the primary vehicle for achieving that stability.
McCord amplified the distinction between those she called socialists and political economists. "'Since,' say they, 'society exists in the law, and you ask from the law only justice, you thus exclude fraternity from the law and consequently from society.'"(63) The question became, what is the role that the law plays in constructing society? One's answer dictated the appropriate scope of the government role in regulating human conduct. Socialists believed that there can exist "in society nothing that is not pre-ordered and arranged by legislation."(64) The "imputations of coldness, harshness, which have been showered upon the science and professors of political economy arose from the political economists' desire that law only establish a basic justice."(65)
Law was necessarily central to McCord's defense of the political economists. Those who attacked political economy and southern slave society as well envisioned an extremely powerful role for law in setting the boundaries of human action. When Joseph Priestly wrote his four volume history of Christianity in 1804, he focused much of his attention on the laws and their effect on humane actions. "The theory of the progress of law is a fine subject of speculation for a philosopher and metaphysician, demonstrating how men's actions enlarge and grow refined, in proportion to the improvements of society."(66) Or, as he was often paraphrased, "Men may be better that their laws, but seldom are."(67) Many in America's Revolutionary generation believed with Priestley in the power of law to mold, constrict, and add shape to beliefs and, further, to remake the world.(68)
1. Constructive Power of the Law
Many of McCord's contemporaries commented on the constructive power of the law. The English reformer Matthew Arnold used European decedent law as a gauge to "show us how far each society wishes the inequality" of wealth "to continue."(69) The English law, which allowed entails and settlements, "is sure, in an old European country like ours, to maintain inequality." To abate inequality in land ownership required interference with the freedom of bequest, probably a limitation of the amount of land that could be given to any one person or at least a requirement that each child be given a share of a parent's estate.(70) But even more than observers like Matthew Arnold, an entire generation of American Reformers believed in the power of institutions, including law, to reshape national character. The concept that law constructed values was widespread.(71) Others saw its utility in bringing about a more perfect America.
2. The Ambiguous Relationships Between Reform Movements and Law
Reformers and their opponents staked out several distinct positions regarding the role of law. Among some reformers the law offered the promise of acting as the vehicle for delivering reform itself. Reformers sought to harness law to impose their will on others. Law might dictate to families how to behave, protect workers, protect young women from prostitution, or preserve the community from unscrupulous physicians. Reformers saw, as Emerson wrote, a nearly limitless horizon. "The conscience of the Age demonstrates itself in [the] effect to raise the life of men by putting it in harmony with this idea of the Beautiful and the Just."(72) Others, like Timothy Walker, were more cautious:
Reform, then, is the watchword of the hour. And now what signifies this far-resounding word? Literally, to remake, reconstruct, recreate. But it does not necessarily signify to improve, to make better, to exalt. When we have pulled one thing down, and put another in its place, we have certainly achieved a reform; but whether it shall prove a benefit or an injury, a blessing or a curse, is problematical. So that a reformer, however benevolent his designs, is not necessarily a benefactor, but may, by possibility, be the greatest of malefactors.(73)
From England came startling reports of reform, such as the Corn Law and Chartism.(74)
Within the reform movements, however, there was a vast difference of opinion about the utility of law. In one of her earliest published essays, Harriet Beecher Stowe explored the dichotomy between love and law.(75) There was a sense among many religiously inspired reformers that abolition of law was necessary for a reign of harmony to begin.(76) Thus, while some harnessed institutions to achieve their goals, others showed a distinct suspicion of institutions. The attack of those reformers on law was related to the larger suspicion of institutions pervading American society in the early years of the nineteenth century. Stanley Elkins, one of the most influential (as well as most controversial) historians of slavery has pointed out that abolitionists viewed institutions (and in this case law should be considered as an institution) suspiciously.(77)
Antebellum writers were keenly attuned to their surroundings. Law was only one of the institutions that surrounded them and governed their lives. Law itself can be the source of evil. Margaret Fuller characterized the thought of James Fourier, the theorist of utopian communities: "As the institutions, so the men!"(78) The reform movement "educat[ed] the age to a clearer consciousness of what man needs, what man can be." From such education, "better life must ensue."(79)
The division over the role of institutions in reform affected abolitionists deeply. They divided over the appropriate role of institutions, such as the Constitution and the courts, in eradicating slavery. Many abolitionists, 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 natural law prevails over positive law and that judges are under no obligation to enforce positive laws. Spooner advised judges to decide according to their own moral vision, even if that vision was inconsistent with the Constitution.(80)
At the same time that abolitionists like Spooner were criticizing Northern antislavery judges for adherence to law, they criticized Southern judges. 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 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?"(81)
3. The Conservative Response to the Reformers' Critique of Law
At a meta-level, McCord and the reformers' visions clashed over the role of the state in American life. Conservatives, like McCord, saw law as a stabilizer of society. The theme of law as a protective, stabilizing force appeared frequently in antebellum writing.(82) University of Virginia professor Albert T. Bledsoe wrote in his essay Liberty and Slavery on the importance of law in establishing society. Contrary to Locke, Bledsoe thought, law is not necessarily a restraint on natural liberty. The "law which forbids mischief is a restraint not upon the natural liberty, but upon the natural tyranny, of man."(83) Liberty, in Bledsoe's world, derived from "the bonds of civil society." It was society, as established and supported by law, that restrained tyranny and oppression.(84) Thus, "[h]e who would spurn the restraints of law . . . is not a friend of liberty."(85) Such ideas pervaded American culture. Even the moderate Encyclopaedia Americana reported that "We cannot speak of liberty in [the rudest state of human existence], because liberty, truly so called, implies the protection of each man's rights by the laws of an organized society, the main object of political institutions being to secure individual liberty, by affording equal protection to all."(86) Conservatives also held a faith in ordinary institutions over grand moral absolutes.(87)
The reformers, those people who had the optimistic belief that the world could be made over through reform, were, thus, opposed by powerful forces. The broad outline of their opponents was sketched in Great Britain by Adam Smith and John Ricardo and in France by Fredrick Bastiat, who captured McCord's attention in particular. Her first article consists largely of a translation of his essay, Justice and Fraternity.(88) McCord began her response with the contention that society is more comprehensive than law.(89) Law might force one to be just, "but vainly would it force him to be generous."(90) Or, as Chancellor William Harper of South Carolina stated, "It is little that legal decisions can do to enforce humanity . . . this must depend on public opinion."(91) Many thought that law should not be used to enforce standards of humanity. In discussing New York state's poor law, Samuel Young told the Union College Phi Beta Kappa Society that "the law supercedes the exercise of those sympathies, which were designed by the Creator to soften, subdue and ameliorate the human heart."(92) Young thought that "female benevolence" "always outruns the lingering and heartless formalities of the law."(93)
The lengthy translations of Bastiat had immediate application to America. The masses, "thoughtless of future consequences," might very well rise to Proudhon's call that "property is robbery."(94) The potential loss was nothing short of the destruction of society. "What can follow, but, on one side, that most crushing of all tyrannies, the tyranny of dominant and bigot opinion, which tramples out even the right of thought, or, on the other, the wildest license, most lawless anarchy, sweeping in its whirlwind progress every vestige of civilization, every footmark of man's better life--the life of reason and improving mind."(95)
The dangers McCord feared in America were just as real as in France, perhaps even greater. Even in conservative South Carolina a pamphlet was circulating to "rouse the poorer classes against the rich."(96) The pamphlet may have been the spark that flared into McCord's essay; the expressed motive was to promote free trade and oppose the "leveling system of socialism," which "gives no equality but that which is found in general ruin. It is a system of anarchy . . . ."(97) McCord's first essay thus concluded with a call for constitutional privileges. It was a wide-ranging effort to oppose reform; a wonderfully bright window into the connection one Southerner saw between law, economy, and society.
McCord's subsequent essays extended her imagery and ideas and the connection between those ideas and the law. Always, however, the conservative theme of suspicion of reform and reverence for stability appeared, with strong refrains of the importance of private property and the centrality of slavery to the functioning of society. In her next essay, "The Right to Labor," she again employs political economy, "one of society's closest guards--a kind of shepherd's dogs, as it were, of the flock" to oppose the "hydra of communism."(98) The odds against her position were great, she believed. Reformers' dreams were "not the clearest. The fashion of our age is cant, a whining pretension to goodness."(99) Others held similar interpretations of the age. Emerson said of conservatism that:
It affirms because it holds. Its fingers clutch the fact, and it will not open its eyes to see a better fact. The castle which conservatism is set to defend is the actual state of things, good and bad. The project of innovation is the best possible state of things. Of course conservatism always has the worst of the argument, is always apologizing, pleading a necessity, pleading that to change would be to deteriorate: it must saddle itself with the mountainous load of the violence and vice of society, must deny the possibility of good, deny ideas, . . . Conservatism is more candid to behold another's worth; reform more disposed to maintain and increase its own.(100)
It was in her essays on slavery and race, however, that McCord most fully developed her comprehensive world view, joining her belief in the importance of stability through law with opposition to reform through legal change. Slavery was the subject where her ideas held their greatest importance and where the potential for change had the greatest likelihood of succeeding. Some utopian communities might be started, labor and women's rights parties might attract limited attention. But abolitionism held the greatest threat.
B. The Defense of Slavery: Connections to the Law
McCord defended slavery from a variety of angles, including religion, history, and ethnography. Strands of thought, coming together from each of those angles, connected to and became intertwined with other elements of conservative economic, social, religious and pseudo-scientific thought; they became intertwined with legal thought. Each strand reinforced the other, creating a rope of ideas, in which law occupied an important place. She wrote at a furious pace, publishing seven essays from April 1851 to July 1853 and three more before 1856.
The first, "Diversity of the Races: Its Bearing Upon Negro Slavery," appeared in the Southern Quarterly Review ostensibly as a review of several works on the origin of the human race.(101) The then-dominant theory, advanced by Harvard Professor Louis Agassiz and Philadelphia physician Samuel George Morton, was that blacks and whites had distinct origins. The question held important power within proslavery circles. For, as McCord boasted, "man's improvement must advance in accordance with, not in opposition to, Almighty order."(102) Indeed, the separate origin theory when combined with historical "evidence" of the barbarism of African societies, supported well the proslavery position that blacks were best suited for their position as slaves. It was a powerful support, grabbed by proslavery writers in their rush to justify the institution in light of religion and nature. As Agassiz wrote and McCord emphasized, "It seems to us to be mock philanthropy and mock philosophy to assume that all the races have the same abilities, enjoy the same powers, and show the same natural dispositions, and that in consequence of this equality that are entitled to the same position in human society."(103) No one, McCord thought, could deny nature. "The madman or the driveling idiot--what law can make free agents of them?"(104) McCord summarized the implications of the scientists' findings: "The white man, made for liberty . . . rebels at what 'the submissive, obsequious, imitative negro' finds, perhaps, his happiest existence."(105) As usual, McCord juxtaposes her sober South Carolinians against reformers. Her essay, like many others appearing the antebellum South, was an important part of creating the mileau that supported slavery and conservatism against reform. It represents that ideas that became such an important part of the Southern ethos.(106)
2. Head versus Heart in the Slavery Debate(107)
Having established the position of blacks as dictated by nature, McCord returned to the political economy of slavery in her next essay, "Negro and White Slavery--Where Do They Differ?"(108) She opens the essay with a quotation from the Westminster Review, distinguishing the two types of philanthropists: the feelers and the thinkers. The terms used to describe the two groups themselves evidenced the Review's disdain for the former. The feelers (also derrogatively referred to as the "impulsive") might relieve immediate evils, but they "too often leave an increasing crop . . . springing up in their footsteps."(109) It was the "systematic" thinkers, who seemingly patiently sought to alleviate remote causes that McCord and the Review admired.(110)
The essay is a review of Charles Kingsley's Alton Locke, which is often credited with promoting the Charter movement in Great Britain, a worker's movement that sought reforms such as abolition of the property qualification for voting. Alton Locke provided a perfect vehicle for McCord to explore the distinction between feelers and thinkers. Kingsley, through a fictional portrayal of the worker, Alton Locke, explored English life and Locke's searching after an understanding of why workers' lives were so miserable. McCord returns to the defense of laissez faire principles, attacking reformers who, "because God Almighty has not seen fit to make this world suited to their ideas of right and wrong, they would revolutionize it to some devil's rule."(111)
McCord characterized her opponents as those "well meaning folks who seek to revolutionize the world to some devil's rule on some work of leave, specially confided to them, the heaven inspired" and those as "mixed up of mad men and fanatics, [who] care not what devil's brood may be let loose upon the world, provided the 'higher law' be exalted, and reason and common sense [be] forced back before their visionary schemes."(112) The "impracticable spirit of reform" has set the world "agog after some unfound and unknown system of improvement, which its seekers seem to imagine is to prove, as it were, some great strengthening plaister, to be clapped upon all weak places in our sick and sorry world . . . . "(113)
McCord illustrated several themes. First, the superiority of slavery to free labor based on the security offered slaves. Degrading scenes of free workers living in filthy slums, McCord thought, were avoided in the South because of masters' duties to protect their slaves. Second, abolition of slavery would lead to similar, even worse results in America. "What devil-born propensity can it be, which would drag our inoffensive negro down to this?"(114) She spelled out the conclusion for the reader, although it should have been clear that freeing slaves would not improve their situation: "Five thousand years of captivity, slavery, barbarism prove him incapable of civilization. Could any imaginable circumstances crush down, for that space of time, into such perfect stagnation, any people capable of improvement?"(115)
The struggle she described, between heart and head, was central to American thought in the antebellum era. Abraham Lincoln explained the distinction in his 1838 Lyceum Speech. "Passion has helped us; but can do so no more." The role of the heart should be limited. Instead, "Reason, cold, calculating unimpassioned reason, must furnish all the materials for our future support and defense."(116) Law occupied a central position as the parties, the reformers and their opponents, staked out their positions and attacked each other. Perhaps the most important part of McCord's attack on reformers--certainly the most illuminating for the legal historian--is her division into thinkers and feelers, and the characterization of feelers as those who, in their desire to reform, will "set the world on fire."(117) The reformers "play[ed] with sheathed lightnings, careless at what moment these may burst from their confinement to light the funeral pile of all that is good and great upon this earth."(118) A successful characterization like that could effectively halt reform. It was a powerful argument to support the status quo and one that lawyers and jurists often effectively advanced.(119)
3. Uncle Tom's Cabin and the Nature of Slave Law
The most explicit discussions of law appeared in her review of Uncle Tom's Cabin, itself heavily concerned with law, in the Southern Quarterly Review in July 1853(120) and in an essay entitled "Charity which does not begin at Home" in April 1853 in the Southern Literary Messenger.(121) McCord began by criticizing Uncle Tom' s Cabin for misportraying the treatment of slaves. However, the grounds of debate soon shifted to law. The debate revolved around the question whether, as the British journal the Westminster Review wrote regarding Uncle Tom's Cabin, that the "darkest part of it is possible within the law," and that "the slave-code authorizes these very enormities." The question resolved, in McCord's mind, to whether the evils would actually occur.(122) Her response, typical of Southern proslavery writers, was that the law was not what defined a master's obligations; instead, one must look to custom, to honor and to the patriarchal relationship of master and slave that defined how slaves were treated.
As in her discussion of Alton Locke and political economists, there was the question whether law should be held responsible for the atrocities committed under it: whether Southerners should be held responsible for "what is possible within the law."(123) McCord changed the venue to a British slum and asked a variant of the question the Westminster Review had asked of Southern society, should English society by held responsible for the sufferings the law permitted? Human nature, not law, McCord believed, was to blame for the inequities that Stowe described. Stowe might be able to find some instances of mistreatment, McCord acknowledged, but "[i]f the lowest vices of the lowest men, are to be culled out with care, and piled upon each other, to form a monster disgusting to humanity, let the creator of so unnatural a conception give to his Frankenstein the name as well as the character of the monsters of fable."(124)
One hotly-contested scene involved the failure of St. Claire, a kind owner, to emancipate Uncle Tom; St. Claire died suddenly, after telling Tom that he would free him but before taking the steps necessary to free him. Now the utility of McCord's emphasis on honor became apparent. She asked why St. Claire had failed to free Tom?(125) The inference was that St. Claire was not the kind gentleman Stowe depicted, but a greedy man who continued to profit from slavery while condemning it. She separated, along with other Southern legal thinkers, legal duties from the sphere of sentiment. The distinction marked a fundamental divide in American thought between those who wanted to use law to reform society and those who sought to preserve society unchanged, or to reform only through individual moral appeals.
The clash between McCord and Stowe over the role of law in American society offers a vivid window into their sophisticated legal ideas. Where McCord argued that laws should not be held responsible for the consequences that flow from them--a popular position among proslavery writers(126)--Stowe placed blame on those who failed to act against slavery. At the end of the novel, she addressed the readers directly in sentimental terms. She encouraged them to "feel right" and "pray."(127) Those actions, she told them, will start the process of making the world right. Her final comment, however, was an admonition that if readers--particularly Southerners--do not take action to effect "repentance, justice and mercy," the Union will be dissolved and the nation will suffer. "[F]or not surer is the eternal law by which the millstone sinks in the ocean, than that stronger law by which injustice and cruelty shall bring on nations the wrath of the Almighty God!"(128) In her nonfiction book A Key to Uncle Tom's Cabin and her 1856 antislavery novel, Dred: A Tale of the Great Dismal Swamp, Stowe addressed in more detail the alternative jurisprudence of the heart that she envisioned: it was a jurisprudence based on sentimental feelings for the slave, rather than the coldly logical rules advocated by McCord.(129)
McCord conceded that the masters' benign sentiments did not always dominate slavery. Instead, desire for financial gain affected slavery. In places where masters tried to exploit property for immediate gain, such as the border states, slavery was harsh. In those areas, humanity and interest clashed. Law making, as advocated by Stowe, however, was not McCord's answer. She viewed laws as a means of disrupting humanity.(130)
McCord's world was one of fear of change and she especially opposed the use of law to effect that change. The natural order was divinely sanctioned. Problems "there are, and disorders numberless, in the great world-system of machinery, which Omniscience has not seen fit to make perfect."(131) The property interest of the slave owners checks them from treating slaves poorly, for example. So harmoniously had nature arranged itself, that "even the vices of man are so arranged by an Omniscient providence, that they are frequently found to balance one another, and even were the slave-owner the devil [Stowe] imagines, his malignity must be checked by his avarice."(132) That was the tip, a tiny fragment, of debate about the role of law in antebellum society that is often overlooked.
McCord also showed her facility in dealing with such traditional legal materials as statutes when she engages an article from the North British Review. She disagreed with the characterization of the slave law as harsh. Besides showing that the article inaccurately reported Louisiana law, she argued that South Carolina laws frequently protected slaves, including the requirement that "masters shall have their Christian slaves buried in consecrated grounds."(133) The discussion of statutes occupied a central place in McCord's essay. Here she argued that slave law protected the slaves, that masters were restricted in the power they had over slaves. Support came from South Carolina Justice John Belton O'Neall's Negro Law of South Carolina.(134) The law served an even more important role--that of protecting society against barbarism. "Every institution of civilized society requires to be maintained and defended by law, maintained and defended against lawless barbarism and brutal force."(135) The law itself protected freedom, for the "nation which rebels against oppressive laws combats not for the abolition, but for the better regulating of law. A revolution which seeks to abolish law, must end necessarily in despotism."(136)
4. The Utility of Law in Limiting Reform: The Application of McCord's Ideas
There was a clash of visions on the purpose of the law, and McCord's side was winning in the legislatures, where representatives urged a utilitarian calculus of benefits and harms, as they contrasted the practical with the ideal,(137) in the courtrooms, where judges disavowed the power to change the law or to it interpret in light of their internal moral compass,(138)
among the treatise writers, who popularized the separation of law from sentiment,(139) and in the classrooms.(140) Law was considered as a way of limiting reform, for it was a conservative profession. "Patience is the badge" of the legal profession Samuel Knapp told the Dartmouth Phi Beta Kappa Society in 1824.(141) When Henry St. George Tucker addressed the law students at the University of Virginia in 1841, he emphasized the importance of law to regulating society:
When we reflect for a moment, that Law is the great bond or cement of society, that without it, the social fabric would tumble in ruins about our heads, and man would return once more to the condition of savage, or the yet more horrible condition of bloodshed and revolution, we are taught at once to appreciate the duly vast importance of this powerful machine. . . . In the hands of princes it is an iron rule; in those of a mob, it is a bloody and capricious tyrant; in a republic, we are taught to expect in it a benign and malignant benefactor, protector and friend!(142)
Lawyers stabilize society, Tucker thought. "Fickleness, and inconstancy, perpetual revolutions, civil commotion . . . all find a check in the calm, reflecting, judicious, well trained tempers of an able band of counselors . . . ."(143) Many other orators emphasized the moderating influences of law and lawyers. Philadelphia lawyer James C. Biddle told the University of Pennsylvania's Philomathean Society in 1832 that "true freedom can only prevail where the people acknowledge and bow to the supremacy of the law."(144) In an age that loved moderation,(145) and saw education as a way of achieving a stable society, law served an important role.(146)
Once an initial fairness had been established, there was no need for further leveling. In areas from corporations' vested rights, to the maintenance of rights to land taken from native Americans, lawyers argued that once a position had been established, once a right had been created, neither legislatures nor courts should disturb those rights.(147) James Fenimore Cooper summarized those sentiments about the inherent justness of property law in the Redskins, the final volume of his trilogy on the anti-rent movement in New York state. "There is not a single just ground of complaint in the particular cases; but, admitting that there were false principles of social life embodied in the relation of landlord and tenant, as it exists among us, it would be a far greater evil to attempt a reform under such a combination, than to endure the original wrong."(148)
McCord represents the ideas circulating in the public about the importance of maintaining basic fairness through law, but not using law to achieve a complete leveling. While an assault was being made by reformers to employ law across a broad spectrum--most notably abolitionist--McCord and others more within the mainstream of legal culture opposed the movement. McCord's essays are an important debate about the fundamental role of law in American society, which have been largely overlooked by legal historians. Indeed, that represents such a fundamental question that legal historians tend to ignore it, as too encompassing. Gone is the perception of justice as the absence of law, which James Fenimore Cooper envisioned in his Leather stocking Tales.(149) The tension between law and justice, between reason and heart so prevalent in antebellum fictional literature does not bother her. Justice is done in McCord's mind when the law ensures stability, enforcing basic commercial expectations. McCord represents the laissez faire head, a position that triumphed magnificently in the antebellum era.(150) McCord's essays show her fundamental values--the maintenance of law. It was onto that bedrock foundation that Southern jurists constructed the framework of the institution of slavery.
IV. The Utility of Louisa McCord's Essays
McCord's essays are important for several reasons. They are representative of other Southern views and can be used as a test of what you can determine about connections between popular thought and legal thought. At the level of correlation, McCord's essays demonstrate close connections between her ideas and those expressed by members of the judiciary and legislators. At a higher level of connection, there remains the question, what direction were the arrows that indicate the influence of ideas pointing?
When we understand the Southern perspective that McCord's writings represent, we can then understand why they acted the way that they did. We can understand their world as they saw it, see their thinking and their beliefs about how society is organized, and what improves and what injures it. All of that is directed at realizing why Southerners acted the way they did. McCord's ideas were part of the division between the cold, legal mentality and the warm, religiously inspired heart. As Herman Melville wrote in Pierre, "In the old courts of justice the dull head demands oaths and holy writ proofs; but in the warm hall of the heart one single, untestified memory's spark shall suffice to enkindle such a blaze of evidence, that all the corners of conviction are as suddenly lighted up as a midnight city by a burning building, which on every side whirls its reddened brands."(151)
McCord's themes, then, include laissez faire, favoring reason over sentiment, law as a means of ensuring basic justice and not reform, and reliance upon nature as a way of ordering, which legislatures should not try to upset. Jurists, lawyers, and legislators wielded each of those themes in opinions as they attempted to maintain stability in the face of increasing challenges in the years leading up to the Civil War.
The absurd efforts of reformers provided a frequent refrain in many of McCord's essays. In one she tells the story of a young astronomer who used his telescope to show a young lady the moon. While she was viewing the moon, he commented off-handily that he had once seen a washerwoman through the telescope. "The wonder-loving young lady understood this remark to refer to the moon; and forthwith behold in circulation a perfectly well-authenticated story of washerwomen in the moon and for aught we know to the contrary, the world might have been soon agog for the improvement of the condition of these ladies, and some philanthropic society would have imagined a method for sending them the last invention in washing-kettles, if unfortunately the learned professor had not spoiled the wonder by revealing the truth."(152) That story, mocking as it is of the humane spirit, captures an essential element of McCord's thought.
But those elements, that emphasis on stability, is characteristic of an entire generation of Southern thinkers. McCord's writings may be used to see their interplay. The writings of Albert Bledsoe, Thomas Roderick Dew, John C. Calhoun, Thornton Stringfellow, Nathan Beverly Tucker, Thomas R.R. Cobb, or any of dozens of other men might also serve that purpose.(153) McCord offers another advantage. She opens a window into the political and legal thought of Southern women.
Other women carried proslavery ideas into popular culture through fictional literature. Writers like Mary Eastman, Caroline Hentz and Marie J. McIntosh imported sophisticated ideas about political and legal thought into their proslavery novels.(154) McCord's writings, which are more overtly political and legal than the other prominent women writers of the pre-Civil War South, testify to the ubiquity and importance of ideas about political and legal thought and point to the fluency with which those ideas circulated in the antebellum South. Together with Harriet Beecher Stowe's trilogy on slave law--Uncle Tom's Cabin, A Key to Uncle Tom's Cabin, and Dred: A Tale of the Great Dismal Swamp--they wonderfully illuminate a world of legal thought that has been hidden for more than a century. As we look deeper at the sources that constitute the evidence of culture, we see the grand ideas that constitute a people's thoughts. And as we reconstruct the role of legal thinking in proslavery movement, it appears that law was a central ground of contention, suggesting that legal culture stretched deep into the minds of antebellum thinkers. The fictional literature, literary magazines, newspapers, and sermons frequently addressed issues in legal and political ideology.(155) One looking to fully understand the complex interplay of legal doctrine with larger cultural phenomena needs works like the Political and Social Essays of Louisa McCord. As constitutional historians develop an integrated history that details that ways that ideas migrated from popular culture into court decisions, works like McCord's will be extremely useful.
Even the visual art of the era often reveals the concern of women with political ideas. Paintings of the United States Senate in the antebellum era, for example, include women as spectators.(156) Works like McCord's add dimension to those paintings and demonstrate that women actively participated in political and legal culture. They cast light on the shadowy figures inhabiting the Senate gallery and remind us of the importance of those figures in formulating and adopting the ideas wielded by the members of Congress and judges as the Civil War approached.(157) If ones plans to seriously challenge the canon of male-dominated lawyers and jurists that legal historians have constructed, it is imperative to include not only abolitionist, sentimental writers like Harriet Beecher Stowe, but also women like Louisa McCord, whose legal philosophy was important in supporting and advancing proslavery law.(158) One needs such perspective to see beyond Justice Story's 1821 statement that "Our jurisprudence is young and flexible, but it has withal a masculine character, which be refined and exalted by the study of the best models of antiquity."(159)
Emerson said everything that is popular deserves study, for it characterizes the people.(160) McCord's writings combine elements of "the Laws, Divinity, Natural Science, . . . Trade, [and] Letters" that promise to tell us their insights, "if we have the wit and love to search [them] out."(161) McCord's ideas deserve study not just because they were popular--which they certainly were--but for what they tell us about how an entire people conceived and categorized their world and the role of the institution of the law in it.
"A revolution which seeks to abolish law, must end necessarily in despotism":
Louisa McCord and Antebellum Southern Legal Thought
Book Review Essay
Richard Loundsbury, ed., Louisa McCord: Political and Social Essays, University of Virginia Press, 1996. $55.00
Alfred L. Brophy*
Oklahoma City University School of Law
2501 N. Blackwelder Ave.
Oklahoma City, OK 73106
* Associate Professor of Law, Oklahoma City University, and Ph.D. candidate (History of American Civilization) Harvard University. A.B., University of Pennsylvania; J.D., Columbia University; A.M., Harvard University.
I would like to thank Mary S. Bilder, Lisa Cardyn, Eva Gasser, and Sarah Wilson for comments on this essay. The Woodrow Wilson Foundation's Mellon Fellowship in the Humanities and OCU's Robert S. Kerr Faculty Research Fund provided financial support.
The division between head and heart paralleled a division between Democratic and Whig political thought. Whigs believed that debt laws must be enforced; Democrats were apt to look beyond the debt itself and ask whether the debt had been incurred fairly. See Kohl, supra note 82, at 169-71 (discussing bond repudiation in Mississippi); Calvin Colton, Political Abolition, Junius Tracts 79 (New York, 1844); Ogden v. Saunders, 25 U.S. (12 Wheaton) 213, 309 (1827) (Thompson, dissenting) ("There can be no natural right growing out of the relation of debtor and creditor, that will give the latter an unlimited claim upon the property of the former. It is a matter entirely for the regulation of civil society; nor is there any fundamental principle of justice, growing out of such relations, that calls upon government to enforce the payment of debts to the uttermost farthing which the debtor may possess.").
all of those sources operating
Beneath the grand style:
Judges often tried to separate discussions of policy from those of law and addressed the policy to the legislature. Justice __ of Ohio struggled with the definition of fixtures, which determined whether expensive manufacturing equipment was liable to foreclosure with a real property mortgage. He opposed argument of counsel that "the common law rule as to fixtures has been somewhat changed by the progress of society and the advancement in the application of machinery to the purposes of manufactures, so as to create a different criterion of a dixture in a manufactory or a mill, from that which applies to articles attached to the realty under other circumstances." "The reasoning of Ch. J. Gibson might be legitimate in legislation, but it is not appropriate in judicial proceedings." 1 Ohio St. 511, 538 (1853).
As we recover antebellum Americans' understandings of the multivariate correlations of legal institutions to culture, we can better appreciate how their actions correlated with
key word searches:
rigor, abstraction/practical; progress/institution/society; enlightened; utility; reasons /s cease; sentiment; sound/policy; entirely consistent; classed into  cases
In some slave states it seems as if there was very little that the benevolent owner could do which should permanently benefit his slave, unless he should seek to alter the laws. Here it is that the highest obligation of the Southern Christian lies. Key at 115.
The codification movement illustrates the varying approaches to law well. Although we lack an adequate history of the codification movement, the broad outlines have been reconstructed.(162) The codification movement, for instance, drew supporters from those who sought to use law to place the power of making laws in the hands of the people, rather than judges. Other, conservative lawyers supported limited codification for entirely different reasons, because it promised to lead to more coherent laws. Some traditions of anti-legalism attacked law broadly; others harnessed it for reform.(163)
There are a substantial number of property treatises that suggest continuity from colonial practices. See, e.g., Benjamin L. Oliver, Practical Conveyancing: A Selection of Forms of General Utility, with Notes Interspersed (Cummingins & Hilliard, Boston, 1816); Asa Aikens, Practical Forms; with Notes and References Explanatory of the Law Governing the Cases to which they are Applicable (S. Ide, Windsor, VT, 1823); Harry Toulmin, The American Attorney's Pocket Book: Being a Collection from the Best Authorities of Approved Precedents in Conveyancing (Mathew Carey, Philadelphia, 1806). ; Nathan Beverly Tucker, George Balcomb (New York, 1836) (discussing attempt to retrieve inheritance of Virginia plantation through Missouri courts)
That anti-institutional bias was shared by such diverse groups as evangelical abolitionists and Transcendentalists.
The most self-conscious attempts to interpret the Civil War in light of surrounding legal issues have been advanced by Arthur Bestor. See Arthur Bestor, The Civil War Considered as A Constitutional Crisis, 69 Am. Hist. Rev. 327-52 (1964); Arthur Bestor, State Sovereignty and Slavery: A Reinterpretation of Proslavery Constitutional Doctrine, 54 J. Ill. Hist. Soc'y 117 (1961). See also Phillip S. Paulden, The American Civil War Considered as a Crisis in Law and Order, 77 Am. Hist. Rev. 1027 (1972). Others,
See, e.g., Progress and the Limits of Social Improvement, 38 N. Am. Rev. 502 (1834).
Other studies examine women's political ideology in the context of women's opposition to traditionally male discourse, such as women's emphasis on sentiment. See Catherine Davidson, Revolution and the Word: The Rise of the Novel in America (1986).
Occasionally judges worried that decisions cost courts moral authority. See 6 Ohio St. 342 (1856).
Even when lawyers wrote about the vagaries of doctrine they often related it to larger cultural and intellectual movements. James Walker, a South Carolina lawyer who took pride in his knowledge of Roman law, urged others to learn it as well because he thought it important to the development of their abilities as lawyers. In a treatise examining the Roman law origins of English (and therefore American) real property law, Walker explained the need to understand the reasons why rules emerged, to understand their social and legal context. "[T]he best preparation, by the bench and the bar, for the correct application of a rule, is an accurate knowledge of its true grounds; 'for then are we said to know the law, when we apprehend the reason of the law.'"(164) Walker hoped that such studies would produce better lawyers, for too often the "the English and American lawyer was a mere thing of precedent, and . . . when new questions arose he was utterly useless as a guide."(165)
Contemporaries, moreover, recognized that women often partook in the debate. Charles Ingersoll's Discourse on the Influence of America on the Mind, one of the most important orations of the antebellum era celebrated the participation of both men and women in American intellectual life, which democracy made possible. "The legislature, the court house, and the church, are thronged with auditors of both sexes, attracted by that talent which was the intense study and great power of the ancient orators." Charles Ingersoll, A Discourse on the Influence of America on the Mind 34 (Philadelphia, 1823). See also Samuel R. Knapp, An Oration Pronounced Before the Society of Phi Beta Kappa at Dartmouth College 25-26 (Boston, 1824) (http://www.okcu.edu/Knapp2.htm) ("The sun of science, which in earlier days only illuminated the visions of seer and sage, now beams effulgently on the female mind, and lights the buyant and youthful steps of the rising generation of females . . . .").
There are obvious links between McCord's laissez faire and her resistance to reform, however. Human sentiments, as well as the market, McCord seemed to say, should be left free from governmental regulation. McCord defined justice as the "right of each must have for its limit the precisely similar right of all others."(166) Anything beyond that was injustice in her mind; to command such inequalities, as by commanding generous treatment of workers, compounded the injustice.(167) The problem to be feared was legislation that protected labor. "Can a people enjoy either moral rest, or physical prosperity, who, at the say of a legislator, may, at any hour, be called to assume such a stamp of benevolence as his whim of the moment dictates?"(168)
Elizabeth Fox-Genovese, The Fettered Mind: Time, Place, and the Literary Imagination of the Old South, 74 Georgia Hist. Q. 622-50 (1990); Amy Thompson McCandless, Concepts of Patriarchy in the Popular Novels of Antebellum Southern Women, 2 Studies in Popular Culture 1-15 (1987)
To understand the law of slavery aright, we must understand its philosophy. To understand its philosophy we must not be ignorant of its history.
Thomas R.R. Cobb, An Inquiry into the Law of Negro Slavery(169)
1. See, e.g., Mary H. Eastman, Aunt Phillis' Cabin (Philadelphia, 1853); Caroline Lee Hentz, The Planter's Northern Bride (Philadelphia, 1854); Augusta Jane Evans, Beulah (Elizabeth Fox-Genovese, ed., 1992) (New York, 1859). See generally Elizabeth Moss, Domestic Novelists in the Old South (1992).
2. Louisa S. McCord, Uncle Tom's Cabin, 7 Southern Quarterly Rev. 81 (1853), reprinted in Louisa S. McCord: Political and Social Essays 245, 271 (Richard C. Loundsbury, ed., 1996).
3. Many of the most important secondary works on antebellum legal history never mention women when discussing the formulators of legal ideas, despite wonderful writings on women's role in political movements, particularly abolitionism, temperance, and women's rights. See, e.g., Perry Miller, The Life of the Mind in America from the Revolution to the Civil War 198 (1965) (mentioning women as spectators in the Supreme Court gallery during the argument of the Girard College case, Vidal v. Philadelphia, 43 U.S. (2 How.) 127 (1844)); The Abolitionist Sisterhood: Women's Political Culture in Antebellum America (Jean Fagan Yellin & John C. Van Horne, eds., 1994). A few works do examine the specifically legal ideas of women, particularly the interaction of women's ideas about law with other legal cultures. See generally Elizabeth B. Clark, "The Sacred Rights of the Weak": Pain, Sympathy, and the Culture of Individual Rights in Antebellum America, 82 J. Am. Hist. 463-93 (1995); works cited infra note 16.
4. On McCord, see Elizabeth Fox-Genovese, Within the Plantation Household: Black and White Women of the Antebellum South 242-89 (1983).
5. David S. McCord, Lieber's Political Ethics, 24 Southern Literary Q. 464 (1847).
6. The abolition of primogeniture merely eliminated the default rule, that in the absence of a will, a decedent's entire estate descends to the eldest son. See 2 St. George Tucker, Blackstone's Commentaries 44 n.1, 109 (Philadelphia, 1803); Stanley Katz, Republicanism and the Law of Inheritance in the American Revolutionary Era, 76 Mich. L. Rev. 1, 12-15 (1977). See also James Fenimore Cooper, The Redskins 7-9 (New York, 1849) (describing feudal estates in New York).
7. See Lord Henry Brougham, Political Philosophy (C. Knight, London, 1843-44); William Whewell, Elements of Morality (J. W. Parker, London, 1845).
8. McCord, Lieber's Political Ethics, supra note 5, at 477.
9. McCord, Lieber's Political Ethics, supra note 5, at 477. The educative function of government was keenly perceived by many Southern observers. See, e.g., Thomas R. Dew, On The Influence of the Federative Republican System of Government upon Literature and the Development of Character, 2 S. Lit. Messenger 261-82 (1836), reprinted in All Clever Men, Who Make Their Way: Critical Discourse in the Old South 125-76 (Michael O'Brien, ed., 1982). The role of law in educating as well as controlling citizens was discussed extensively during the debates over the Fugitive Slave Act of 1850, as was the converse role of the community in shaping and supporting the law. See, e.g., Senator Rhett, Cong. Globe, 31st Cong., 2nd Sess., 317 (February 24, 1851) ("A law to have its practical effect must move in harmony with the opinions and feelings of the community where it is to operate."); Senator Berrien, Cong. Globe, 31st Cong., 2nd Sess., 314 (Feb. 24, 1851) ("[T]he object of that [President's] proclamation . . . is to enjoin upon the ministerial officers of the Government, and upon citizens generally, their obligations to aid in the execution and enforcement of this law. . . . It is its moral influence in the community which I think is principally to be relied upon, and which imparts to it its chief importance and value. It will exert this influence, unless fanaticism has extinguished the feeling of patriotism."); Senator Winthrop, Cong. Globe, 31st Cong., 1st Sess., 1588 (August 19, 1850) ("[A]ll laws depend for their
execution and efficiency, in no small degree, upon the opinion of the community that they are just and reasonable laws; and that if this law should go forth to the people of any of the free States with an idea that it is arbitrary, oppressive, and regardless of the great principles of justice, it would be much less likely to be faithfully executed than if it was more in conformity with the public sentiment of those States.").
10. McCord, Lieber's Political Ethics, supra note 5, at 477.
12. Id. at 478 (quoting Lieber).
13. John Lewis Ricardo, The Anatomy of the Navigation Laws (C. Gilpen, London, 1847).
14. David S. McCord, The Anatomy of the Navigation Laws, 32 Southern Quarterly Rev. 416, 416 (1850).
15. See, e.g., Morton J. Horwitz, The Transformation of American Law, 1780-1860; Gary T. Schwartz, The Character of Early American Tort Law, 36 U.C.L.A. L. Rev. 641 (1989); William W. Fisher, The Law of the Land: An Intellectual History of Property Law, 1760-1860 (Ph.D. Dissertation, Harvard, 1990);
Christopher Tomlins, Law, Labor and Ideology in the Early American Republic (1993).
16. Some recent studies are changing this quickly. See Lea Vander Velde & Sandhya Subramanian, Mrs. Dred Scott, 106 Yale L. J. 1033 (1997); Sarah Baranger Gordon, "Our National Hearthstone": Anti-Polygamy Fiction and the Sentimental Campaign Against Moral Diversity in Antebellum America, 8 Yale J L & Hum 295 (1996); Jane Larson, "Women understand so little, they call my good nature 'deceit'": A Feminist Rethinking of Seduction, 93 Colum. L. Rev. 374-472 (1993); Cheryl L. Harris, Finding Sojourner's Truth: Race, Gender and the Institution of Property, 18 Cardozo L. Rev. 309 (1996); Don E. Fehrenbacher, Constitutions and Constitutionalism in the Slaveholding South (1989).
17. See, e.g., William W. Fisher, Ideology, Religion and the Constitutional Protection of Private Property, 1760-1860, 39 Emory L. J. 65-134 (1990) (tracing constitutional ideas about property through religious, economic, and political fabric of American culture).
18. Ralph Waldo Emerson, Lecture on the Times, in 1 Emerson's Works, 249, 257-58 (1878).
19. Cf. Thomas R. Dew, Digest of the Laws, Customs, Manners, and Institutions of the Ancient and Modern Nations 103 (Philadelphia, 1852)
20. Joseph Story, Science and Letters in Our Day (Massachusetts, 1826), in Representative Phi Beta Kappa Orations 37, 41 (Clark S. Northup, ed., 1927).
21. Id. at 48-49.
22. Charles Sumner, The Law of Human Progress (New York, 1848), reprinted in Representative Phi Beta Kappa Orations 73, 80 (Clark S. Northup, ed., 1927).
23. Id. at 95; Harriet Beecher Stowe, Uncle Tom's Cabin 515 (Library of America, 1982) (urging readers to "feel right" and "pray").
24. Heman Humphrey, A Discourse Delivered Before the Connecticut Alpha of .B.K. 19 (New Haven, 1839).
25. Francis C. Gray, Oration Before the Phi Beta Kappa Society of Brown University . . . on Commencement Day, September 7, 1842 6 (Providence, 1842).
26. The optimism of antebellum college lecturers appeared in their explanations of America's progress. They told their audiences that was largely due to America's legal and religious institutions. Samuel Knapp, for instance, contrasted Rome with America for a Dartmouth audience in 1824. In Rome:
[p]ower, acting upon and controlling ignorance, was the only security they had. The great mass of the people were kept ignorant of the motives of their rulers. . . . A skillful monarch could make all the provinces he governed subservient to this wishes, and yet use them as a check upon another--but sometimes the game was badly played, and his power passed away in some political spasm. It is not so with our republic. If our data be correct, the inferences also will be just. Another age will not pass away before many of our anticipations will be realized. The literary, scientific, charitable, and religious institutions of our country will grow and expand as the population increases. The streams of knowledge as they flow on through future ages, like our great rivers, as they pass to the ocean, will become wider and deeper, and more navigable to the myriads who will float on the tide.
Samuel R. Knapp, An Oration Pronounced Before the Society of Phi Beta Kappa at Dartmouth College 13 (Boston, 1824) (http://www.okcu.edu/law/Knapp2.htm). Religious institutions, likewise, took on their character from their surroundings. "As rivers (in the well-known simile of Bacon) take their hue and taste from the soil through which they flow, so the Church of every sect, unalterable though it profess to be, is inevitably modified by the institutions and civil circumstances of the country in which it is established." William Kent, An Address Pronounced Before the Phi Beta Kappa Society of Union College 25 (New York, 1841) (http://www.okcu.edu/law/Brophy_Kent2.htm).
27. Edward Everett, The Circumstances Favorable to Literary Improvement in America: An Oration, Pronounced at Cambridge, Before the Society of Phi Beta Kappa, in Edward Everett, Importance of Practical Education and Useful Knowledge 7, 8-9 (New York, 1856).
28. Kent, supra note 26, at 18-19.
29. Kent, supra note 26, at 18-19.
30. See, e.g., G. Edward White, The Marshall Court and Cultural Change, 1815-1835, 11-156 (1988); Mary Sarah Bilder, The Struggle Over Immigration: Indentures Servants, Slaves, and Articles of Commerce, 61 Missouri L. Rev. 743-824 (1996); Stephen Siegel, Joel Bishop's Orthodoxy, 13 Law & Hist. Rev. 215-260 (1995); Kathryn Preyer, 7 L & H. Rev. (1989).
31. See, e.g., Christine A. Desan, The Constitutional Commitment to Legislative Adjudication in the Early American Tradition, 111 Harv. L. Rev. 1381, 1387-89 (1998). Professor Desan recovers legislative adjudication, which she identifies as one of the "innovations that reorganized thought and practice." Id. at 1392. See also Margaret Raymond , Rejecting Totalitarianism: Translating the Guarantees of Constitutional Criminal Procedure, 76 N. Carolina L. Rev. 1193-1263 (1998) (linking post-War constitutional thought to anti-totalitarian rhetoric in popular culture).
32. 1 James Kent, Kent's Commentaries on American Law 439 (O. Halsted, New York, 1826).
33. Id. at 446.
34. Hugh S. Legaré, Codification, 3 S. Rev. 391, 402 (1831).
35. Id. at 404.
36. Hugh S. Legaré, Kent's Commentaries, 2 S. Rev. 72, 74 (1829).
37. Id. at 75-76.
38. That is not to say that everyone agreed on the relative weight of precedent and American institutions. Justice Story emphasized the continuity with sophisticated English commercial law, while Charles Ingersoll thought that American law was simpler and more manageable than the English common law. Compare Joseph Story, Address Delivered Before the Members of the Suffolk Bar (Boston, 1822) with Charles Ingersoll, A Discourse on the Influence of America on the Mind (Philadelphia, 1823), reprinted in American Philosophic Addresses, 1700-1900 20-59 (Joseph Blau, ed., 1945). The contrast between Story and Ingersoll presaged, according to Perry Miller, claims of nationalists "exalting the American genius for 'simplicity' over the inherent depravity of English and 'feudal' complexity." See Miller, Legal Mind, supra note 3, at 77-78 (contrasting Story and Ingersoll). More recently, David Brion Davis has juxtaposed Story and Henry Dwight Sedgwick. See David Brion Davis, Antebellum American Culture 150-55 (1979); [Henry Dwight Sedgwick], Anniversary Discourse Delivered before the Historical Society . . ., 19 N. Am. Rev. 417- (1824). Sedgwick and Ingersoll shared a common approach to--and desire for simplicity in--American law.
39. One prime example of the connections between political and legal ideas appears in constitutional doctrine regarding slavery in the territories. Compare, for instance, John C. Calhoun, Cong. Globe, 25th Cong., 2d Sess., app. 55, 58-59 (1837) (resolutions regarding slavery in the territories) and Robert M.T. Hunter, Cong. Globe, 31st Cong., 1st Sess., app. 375, 379 (March 25, 1850) (whatever is recognized as property by individual states must be protected in the territories) with In re Perkins, 2 Calf. 424 (1852) (applying the ideas expressed in the resolutions to determine the right of slave owner to slaves brought into California) See also Alfred L. Brophy, Note, Let Us Go Back and Stand Upon the Constitution: Federal-State Relations in Scott v. Sandford, 90 Colum. L. Rev. 192-225 (1990) (exploring the origins of Taney Court's federalism in popular thought and the implications of that jurisprudence). The arrows indicating directions of influence pointed both ways.
40. Fredrick Grimke, The Nature and Tendency of Free Institutions 449-53 (1847) (John William Ward, ed., 1968).
41. Id. at 458.
42. See Joseph Story, A Discourse on the Past History, Present State, and Future Prospects of the Law (1835), reprinted in James McClellen, Joseph Story and the American Constitution 325, 325 (1972).
43. See John Pendelton Kennedy, Swallow Barn: Or, a Sojourn in the Old Dominion (revised ed., 1853). It is unclear how much property law actually changed. Did it actually adapt to the American surroundings, as St. George Tucker and James Kent thought? See St. George Tucker, Blackstone's Commentaries, supra note 6, at 44 n.1, 109 (explaining changes from English property law); 4 Kent, Commentaries on American Law, supra note 32, at 273 (same); Joseph Story, An Address . . . Before the Members of the Suffolk Bar . . . On the 4th of September 1821 18 (Boston, 1829) ("As to the structure of land titles, there is a considerable diversity in the states, and in several of them a great departure from the simplicity and certainty of those derived under the common law."); Hugh S. Legaré, Kent's Commentaries, 2 Southern Rev. 72, 75 (1829) ("The forms of conveyancing were materially alerted and simplified, as were those, also, of judicial proceedings."). As Robert W. Gordon observed fifteen years ago, we know almost nothing about the nature of property law in the local courts, about how reforms of property law affected the practice of law. Robert W. Gordon, Book Review, 42 Vand. Law Rev. 431, 442 (1983) (reviewing Charles Cook, The Codification Movement (1980)). Or, as one might say, about what happened "beneath the grand style." Cf. David S. Reynolds, Beneath the American Renaissance (1988) (examining connections between literature of the American Renaissance and popular literature). The fictional literature, at least, frequently discussed the complexities of real property law. See, e.g., Kennedy, Swallow Barn, supra, at 145-51 (discussing case concerning rights of adjacent land owners to a mill). That may lead one to question whether property law actually changed as much as some suggested. Justice Story, at least, acknowledged many continuities in land law. See Story, An Address . . . Before the Members of the Suffolk Bar, supra, at 11 ("The common law forms of conveyance are in general use, and the statute of Uses being recognized as a part of the common or statute law of the states, the English doctrine on these subjects are generally adopted.").
44. Luther v. Borden, 48 U.S. 1, 52 (1849) (Woodbury, dissenting) ("The disputed rights beneath constitutions already made are to be governed by precedents, but sound legal principles, by positive legislation, clear contracts, moral duties, and fixed rules; they are per se questions of law, and are well suited to the education and habits of the bench."). Equity in particular looked to moral duties. United States v. Price, 50 U.S. 83, 100 (1850) (McLean, dissenting) ("[T]he moral duty on the representative of the deceased is still imperative, and is more to be weighed and enforced in chancery than elsewhere, that being the tribunal peculiarly designed to relieve against much of the strictness and technicality prevailing elsewhere.").
45. Feudal rules were often considered obsolete, because they were "in no small degree influenced by considerations which have long since ceased to exist." Junior's Lessee v. Lynn, 43 U.S. 43, 55 (1844). See also Webb v. Den, 58 U.S. 576, 579 (1855) ("But this technical distinction is founded on feudal reasons with respect to livery of seisin, which have no application where the release is to the equitable owner in fee."); Shorter v.
Smith, 9 Ga. 517, 532 (1851) (Lumpkin, J.) (arguing against enforcement of rule that originated in feudalism). Thus, in opposing partible inheritance, counsel argued that "in a country increasing in population, and freed from the influence of those principles in the law of inheritance of England, which had their origin in feudal times, rules of such difficult application are impolitic and oppressive." Gardner v. Collins, 27 U.S. 58, 70 (1829). Counsel opposed the Rule in Shelley's case because it "is founded on feudal reasons having no existence in this country." Moore v. Brooke, 53 Va. 531, 532 (1853). When evaluating a rule's application in the United States, jurists cautioned that they needed to "recollect, too, the policy of the times in which" it originated. Blight's Lessee v. Rochester, 20 U.S. 535, 547 (1822) (Marshall). In opposing the validity of a restraint against marriage, one Virginia jurist felt that "however it may be in England, . . . such restriction here is contrary to the genius of our instituting to the spirit of our government and to the policy of our laws, and as such is utterly nugatory and should be held for naught." Maddox v. Maddox's Admin., 52 Va. 418, 422 (1854). Or, as Senator Cass argued in debate over the Fugitive Slave Act of 1850,
A great deal of this unjust operation is owing to our great system of laws--. . . a system unworthy of the age and unfit for the country. Its panegyrists call it the perfection of human sense; for my part, I believe a great of it is the perfection of human nonsense, originating in the darkest period of the human intellect, and in a state of society, under a form of government, and amid feudal times, of all which it is the relic, and, instead of promoting the great objects of free and equal and speedy justice, it too often ends in ruinous injustice.
Remarks of Senator Cass, Cong. Globe, 31st Cong., 1st Sess., 313 (February 24, 1851). See also Speech of Mr. Nisbet, Cong. Globe, 27th Cong., 1st Sess., 473, 473 (Aug. 11, 1841) ("We revolt at the tyranny of Government; we recoil with utter loathing from recitals of inquisitorial oppression or of feudal despotism; we have unfurled our own free banner to the careering winds; we have built our own Government upon the eternal foundations of equity and right. . . ."). Nevertheless, some parts of feudal law were so well-entrenched that they "have become landmarks of property, and cannot therefore be disturbed." Anderson v. Bock, 56 U.S. 323, 328 (1854).
Counsel in Charles River Bridge Co. v. Warren River Bridge Co. argued against broad construction of a charter, claiming that such a doctrine was a vestige of "feudal rights", which "are well known to have originated in the very spirit of cupidity." They "increased the mass of wealth in the feudal lords, at the expense of the public." He concluded that "many of the feudal institutions which still have acknowledged force in England, have been repudiated here; and I cannot think there is much wisdom in attempting to engraft any of them upon our institutions, beyond what they have been distinctly recognized to be the law of the land." 36 U.S. 420, 513 (1836). Supreme Court Justice McLean referred to the enlightened, commercial society in deciding that a contract calling for delivery at the earliest possible date required performance on Sunday:
It would certainly present a strange anomaly, if this country, in the nineteenth century, should be found re-establishing the superstitious observances of the dark ages with increased rigor, which both priest and sovereign in the seventeenth have been compelled to abolish as nuisances.
Richardson v. Gooddard, 64 U.S. 28, 417 (1859).
When importing precedents from England it remained "the high and imperative duty of [the] court to conform its judicial decisions, . . . to the nature of our government and free institutions." King v. Becker, 15 Ohio 559, 561 (1846) (avoiding application of Shelley's Rule to devise of life estate in grantee, remainder to heirs of grantee, and, thus, protecting property from creditors of grantor).
But many English rules simply were inconsistent with American practice. See Seargent v. Steinberger, 2 Ohio 305, 206 (1826) ("[E]states in joint tenancy do not exist in Ohio. The reasons which gave rise to this description of estate in England, never existed with us. The jus accrescendi is not founded in principles of natural justice, nor in any reasons of policy applicable to our society or institutions."). The Supreme Court explained why livery of seissen was inapplicable. "It would be idle to compel an heir or purchaser, to find his way through pathless deserts, into lands still overrun by the aborigines, in order to 'break a twig', or 'turn a sod', or 'read a deed', before he could acquire a legal freehold. It may be safely asserted, that had a similar state of things existed in England when the conqueror introduced this tenure; the necessity of actual seissen . . . would never have found its way across the channel." Davis v. Mason, 26 U.S. 503, 506-07 (1828).
46. See, e.g., The Rapid, 12 U.S. 155, 163 (1814) (Johnson) ("[I]t is the unenvied province of this Court to be directed by the head, and not the heart. In deciding upon principles that must define the rights and duties of the citizen and direct the future decisions of justice, no latitude is left for the exercise of feeling."). Justice Campbell interpreted the United States' respect for property rights in the territories as the result of "a definite purpose declared to . . . to plant in the heart of every community the same sentiments of grateful reverence for wisdom, forecast, and magnanimous statesmanship of those who framed the institutions for these new States . . . ." Cooper v. Roberts, 59 U.S. 173, 178 (1856). And sometimes those moral duties were converted into legal ones. See Johnson v. Bentley, 16 Ohio 97, 98 (1847) (permitting suit on bills issued by an unauthorized banking company). But more often lawyers carefully separated moral from legal duties. See, e.g., 2 Kent, Commentaries on American Law, supra note 32, at 484 ("The writers of the moral law hold it to be the duty of the seller to disclose the defects which are within his knowledge. But the common law is not quite so strict.").
47. Thurlow v. Massachusetts [License Cases], 46 U.S. (5 How.) 504, 521-22 (1847) (argument of counsel for the state) (public sentiments against sale of alcohol used to construe Constitution); Dartmouth College, 17 U.S. 647 (1819) ("If every man finds in his own bosom strong evidence of the universality of this sentiment, there can be but little reason to imagine, that the framers of the constitution were strangers to it."); Levy v. Wallis, 4 U.S. 167 (Dec. 1799 Term) ("[T]his departure from the English rule arose from the sentiments of humanity, and the peculiar necessities of the country"). Sentiment and law might coincide and when they did, the case for a rule was strengthened. See Bank of Augusta v. Earle, 38 U.S. 519, 567 (1838) (arguments of counsel) ("And why now, when existing systems and established opinions, when both the law and public sentiment have concurred in what has been found practically so safe and so useful; why now, and why here seek to introduce new and portentous doctrine."). But sentiment could not override the Constitution. Fletcher v. Peck 10 U.S. (6 Cranch) 87, 138 (1810) ("[I]t is not to be disguised that the framers of the constitution viewed, with some apprehension, the violent acts which might grow out of the feelings of the moment; and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed."). See also id. at 133 ("If the legislature be its own judge in its own case, it would seem equitable that its decision should be regulated by those rules which would have regulated the decision of a judicial tribunal. The question was, in its nature, a question of title, and the tribunal which decided it was either acting in the character of a court of justice, and performing a duty usually assigned to a court, or it was exerting a mere act of power in which it was controlled by its own will.").
Thus, in evaluating rules, courts asked whether they were consistent with "progress" and the "civilized world." See, e.g., Leitensdorfer v. Webb, 61 U.S. 176, 177 (Dec. Term , 1857) (Daniel, J.) ("The modern usage of nations, which has become law, would be violated, and that sense of justice and right which is acknowledged and felt by the whole civilized world would be outraged, if private property should be generally confiscated and private rights annulled."). There were limits to the progress of the law, however. The law should never, conservative thinkers argued, try to advance beyond what the people it governed were able to accept, or disastrous consequences, such as the French Revolution, might result. See generally Dew, supra note 19, at 579-82. Instead, progress should be gradual, college lecturers told their audiences. See, e.g., Kent, supra note 26, at 14 ("[W]e shall see, and now see, a ceaseless progress in the principles of Democracy and equality--slow, from the cautiousness of our national character, and from the predominance of the agricultural interests and class--a class essentially and stubbornly republican, but then, e converso, not prone to change, with much of the vis inertiĉ, and segregated from the wild enthusiasm and heated passions which crowded cities engender."); id. at 26 ("The idea, which I wish to enunciate, is simply this--that, as in political matters, I see the slow progress of true principles, though appearances are sometimes adverse, so in religion I believe in the certain advances of Gospel truth and influence, not the less because it will be accompanied by greater charity."); Timothy Walker, The Reform Spirit of the Day, An Oration Before the Phi Beta Kappa Society of Harvard University 36-37 (1850) ("[T]he great want of our age is Moderation. The lesson we should draw, from the survey we have taken, is neither to be obstinately conservative, nor rashly progressive."); id. at 8 ("There is such a thing as true reform--and as I apprehend it, it is gradual improvement; not sudden change. The first, adapts itself to circumstances; and by seeming to submit to them, really controls them; and thus is aided by them, in a natural and certain growth."); Job Durfee, The Influence of Scientific Discovery and Invention on Social and Political Process (1847), reprinted in American Philosophic Addresses, 1700-1900 383, 414 (Joseph Blau, ed., 1945) ("Change indeed must come, but then let it come by force of the necessary law of progress. So shall the present still ever build and improve on a patrimony formed by the deeds of heroic virtue, and the labors of exalted intellect.").
48. Some, like Donald Fehrenbacher and William Freehling, have placed constitutional thought at the center of their discussions of the coming of war. Fehrenbacher, for instance, interprets the ideas as serving a configuring role. They shaped the possible courses of Southern action. See Fehrenbacher, Constitutions and Constitutionalism in the Slaveholding South, supra note 16; Don E. Fehrenbacher, The Dred Scott Case (1978). Freehling interprets the constitutional ideas as an outgrowth of the economic and social crisis of the South and, thus, employs the ideas to understand the direction of Southern action, as a map to the intellectual terrain. See William W. Freehling, Prelude to Civil War, 1816-1836 (1965).
49. Willard Hurst is the most eloquent advocate for this position. See, e.g., Willard Hurst, Legal Elements in United States History, in Law in American History 3-92 (Donald Fleming & Bernard Bailyn, eds., 1974). Recent examples of such integration include Clark, "The Sacred Rights of the Weak", supra note 3; Gordon, "Our National Hearthstone", supra note 16; Melissa J. Ganz, Wicked Women and Veiled Ladies: Gendered Narratives of the McFarland-Richardson Tragedy, 9 Yale J. L. & Feminism 255-303 (1997) (exploring ways that trial shaped content of narrative). Such essays depict the interaction of law with larger culture and suggest elements of the culture that are filtered out as the issues are processed through legislative and judicial settings. See generally Riva Siegel, Home as Work: The First Woman's Rights Claims Concerning Wives' Household Labor, 1850-1880, 103 Yale L. J. 1073 (1994) (exploring ideas about compensation for women's house work in computing marital assets, which were filtered out by the legislatures).
50. The historical profession seems to be moving in the direction of such integrated histories. See generally William W. Freehling, The Reintegration of American History: Slavery and the Civil War 253, 262 (1994).
51. A Lexis search revealed only two citations of McCord in law journals. See Elizabeth Fox-Genovese, Women's Rights, Affirmative Action, and the Myth of Individualism, 54 George Washington L. Rev. 338, 347 (1989); Thomas Russell, Articles Sell Best Singly: The Disruption of Slave Families at Court Sales, 1996 Utah L. Rev. 1161, 1184. One cite came from Elizabeth Fox-Genovese, whose work has placed McCord at the center of our knowledge about plantation culture and Southern political-economic thought. See Elizabeth Fox-Genovese, Within the Plantation Household, supra note 4; Eugene Genovese and Elizabeth Fox-Genovese, Slavery, Economic Development, and the Law: The Dilemma of the Southern Political Economists, 41 Wash. & Lee L. Rev. 1, 27-28 (1984) (discussing McCord's thought); Eugene Genovese, Critical Legal Studies as Radical Political World View, 3 Yale J. L. & Hum.. 131, 138 (1993) (quoting McCord).
52. See Robert W. Gordon, J. Willard Hurst and the Common Law Tradition in American Legal Historiography, 10 Law & Society Rev. 9, 25 (1975). There have, of course, been notable exceptions in the writing of American legal history. Professor Gordon dates the origins of American legal history, which on reveals the connections of law to society, to the 1870s. As far back as the beginning of the nineteenth century, however, a number of works of legal history interpreted the law in light of its surrounding social circumstances. Writers as different as liberal Unitarian Joseph Priestley and proslavery William and Mary College President Thomas R. Dew wrote volumes of legal history in which the connections of law to society were of central concern. See 2 Joseph Priestley, Lectures on History and General Policy 197 (Northumberland, PA, 1803) ("Many things in the present state of the law are unintelligible without the knowledge of the history and progress of it."); Dew, Ancient and Modern Nations, supra note 19. Like McCord, Stowe keenly perceived the interplay of legal and religious institutions with political thought. See generally Harriet Beecher Stowe, A Key to Uncle Tom's Cabin parts II, IV (John P. Hewett, Boston, 1853) (examining legal and religious institutions as they support slavery). She thought that "the only means of understanding precisely what a civil institution is are an examination of the laws which regulate it." Id. at 120.
It is not surprising, however, that the elusive connections between common law and popular culture are lost. Even in that time, a lawyer denigrated his opposition's argument, which rested upon an interpretation of "those, who did not from their education or their situation know what the law was," by classifying it as "street law". He concluded that such interpretation should have no weight in a court's deliberations. Gardner v. Collins, 27 U.S. 58, 72 (1829). Some commentators, nevertheless, recognized the connections of judges to popular culture. "Our judges are prohibited from legislating; and yet it cannot be deemed, that the greater, and we do not scruple to say the better part of our law is neither traditional, for there could be no such traditions; nor statute, for there are no such statutes; but judicial law, enacted by the sole authority of the judges . . . ." Sampson's Discourse and Correspondence with various Learned Jurists upon the History of the Law, 23 N. Am. Rev. 197, 201 (1826). The works of legal outsiders like William Sampson counter the perception that judges were merely expositors and not makers of the law. See generally Walter J. Walsh, Redefining Radicalism: A Historical Perspective, 59 George Washington U. L. Rev. 636-82 (1991).
53. Opinions of the Judges of the Supreme Court of the United States, in the Cases of "Smith v. Turner," and "Norris v. the City of Boston", 32 Southern Q. Rev. 444, 444 (1850).
54. The North American Review similarly believed that Marshall's decision in Dartmouth College, 17 U.S. (4 Wheat.) 518 (1819), served an educative function. "[E]very decision of this sort imparts something of solidity and durability to our constitution . . . . [It] is remembered, and exerts a salutary influence upon the public mind, even when the reasons it is founded on are forgotten." Report of Dartmouth College, 8 N. Am. Rev. 83, 111 (1819).
55. On the various strands of ideology and beliefs that came together in antebellum legal thought, see generally Fisher, supra note 17; William LaPiana, Logic and Experience: The Origin of Modern American Legal Education 29-54 (1994); White, The Marshall Court and Cultural Change, supra note 30, at 11-156.
56. For development of the intellectual world that the plantation mistresses inhabited, see Catherine Clinton, The Plantation Mistress: Woman's World in the Old South (1982).
57. See, e.g., Dorothy Sterling, Ahead of Her Time: Abby Kelley and the Politics of Antislavery (1991); Fox-Genovese, supra note 4, at 292-333.
58. Clark, "The Sacred Rights of the Weak" , supra note 3 (analyzing effect of sentiment on law).
59. Abolitionist Sisterhood, supra note 3.
60. Loundsbury's edition complements well the recent edition of lawyers' papers, which promise to give access to multi-dimensional pictures of antebellum legal thought. See, e.g., Stephen Botein, Other Ruling Passions: The Legal Papers of Daniel Webster, 1985 ABF Research J. 217-29 (reviewing The Papers of Daniel Webster, The Legal Papers (1984)); Hendrick Hartog, The Significance of a Single Career: Reflections on Daniel Webster's Legal Papers, 1984 Wisc. L. Rev. 1105-19 (same).
61. See Ralph Waldo Emerson, Nature, in 1 Emerson's Works 11, 11 (1878).
62. Id. at 60.
63. Id. at 60-61 (quoting Bastiat).
64. Id. at 60.
66. Joseph Priestley, Lectures on History and General Policy, supra note 52, at 372.
67. See, e.g., William Goodell, The American Slave Code in Theory and Practice 17 (Boston, 1853).
68. Bernard Bailyn has described the generative power of ideas--which themselves are closely allied to institutions--for the Revolutionary generation:
Formal discourse becomes politically powerful when it articulates and fuses into effective formulations opinions and attitudes that are otherwise too scattered and vague to be acted upon; when it mobilizes a general mood; when it crystallizes otherwise inchoate social and political discontent and thereby directs it to attainable goals; when it clarifies, symbolizes, and elevates to structured consciousness the mingled urges that stir within us.
Bernard Bailyn, The Central Themes of the American Revolution, in Essays on the American Revolution 3, 11 (Stephen G. Kurtz & James H. Hutson, eds., 1973). That formulation may be helpful in framing McCord's thought.
69. Matthew Arnold, Equality in The Portable Matthew Arnold 573, 577 (Lionel Trilling, ed., 1949).
70. Justice Story identified changes in decedent's law as one of four key changes of in American law. See Joseph Story, A Discourse on the Past History, Present State, and Future Prospects of the Law (1835), reprinted in McClellen, Joseph Story, supra note 42, at 325, 334.
71. See, e.g., Daniel Webster, On the Resolution of Mr. Foote Respecting the Sale of Public Lands (Jan. 20, 1830) ("I doubt whether one single law or any lawgiver, ancient or modern, has produced effects of more distinct, marked, and lasting character than the [Northwest] Ordinance of '87. . . . It fixed,
forever, the character of the population in the vast regions northwest of the Ohio, by excluding from them involuntary servitude."). Even more common were broad claims for the role of education in shaping a people for freedom. See, e.g., Theophilius Parsons, The Duties of Educated Men in a Republic: An Address Delivered Before the Phi Beta Kappa Society of Harvard University 10 (Boston, 1835) ("We have here no power but the law, and the law has here no power but that of public opinion. . . . Shall the whole direction of public opinion, be left to the demagogue who pays for the votes which give him place . . . to the wild and dangerous fanatic, who pursues perhaps some object which the good are willing to call good, but who, in his pursuit of it, renounces the guidance of reason and of justice?"); cf. Virgil Maxcy, A Discourse Before the Phi Beta Kappa Society of Brown University 10 (Boston, 1833) ("[T]he universal activity of the mind, which has distinguished the last century amongst educated men, could not be entirely restrained within the limits, desired by arbitrary governments, but has embraced within the sphere of its examination, the true foundation and nature of social order, and the legitimate end of political institutions; it has dispelled from that class the illusion of the divine right of kings; it has taught even absolute monarchs to respect public opinion, and softened down the harsh features of practical despotism; and whatever dispute still exists about the right of the people to choose and make the form of their own government, it has extorted from the possessors of power the acknowledgement, however inconsistent with their practice, that the legitimate object of government is the welfare of the people.").
72. Ralph Waldo Emerson, Lecture on the Times, in 1 Emerson's Works 258.
73. Walker, The Reform Spirit of the Day, supra note 17, at 6.
74. The Corn Law was a law designed to maintain the prices of farm produce; Chartism was the name of a workers' movement whose agenda included universal male suffrage. See Louisa McCord: Political and Social Essays, supra note 2, at 188 n.2.
75. See Harriet Beecher Stowe, Love versus Law, in The Mayflower: Or, Sketches of Scenes and Characters Among the Descendants of the Pilgrims 19-79 (Harper and Brothers, New York, 1844).
76. See generally Lewis Perry, Radical Abolitionism: Anarchy and the Government of God in Antislavery Thought 188-230 (2nd ed. 1995); Lewis Gerteis, Morality and Utility in American Antislavery Reform 43-61 (1987); William Wiecek, The Sources of Antislavery Constitutionalism, 1760-1848 (1977). One of the most widely circulated indictments of American law came in Harriet Beecher Stowe's Uncle Tom's Cabin, which urged reliance upon humane sentiments rather than "worldly policy". Harriet Beecher Stowe, Uncle Tom's Cabin 515 (Library of America, 1982). One of the ways it did that was through exploration of the conflict between the duty to fugitive slave law and humanity. When Senator Byrd tried to "reason" with his wife regarding the importance of returning fugitive slaves to their masters, she responded, "I hate reasoning, John,--especially reasoning on such subjects. There's a way you political folks have of coming round and round a plain right thing; and you don't believe in it yourselves, when it comes to practice." Id. at 102. Ultimately, the Senator himself broke the law by carrying Eliza and her child, Harry, through the Ohio night in a hay wagon. That demonstrated his "heart was better than [his] head." Id. at 108. The distinction between head and heart was also used by Southerners to describe the virtues of their fiction. See Beulah, 31 Southern Lit. Messenger 241, 243-44 (1860) (contrasting Southern fiction with Northern, which "speaks rather from the head than the heart."). Edward Everett employed it to distinguish sentiment and reason. An Address Delivered Before the Phi Beta Kappa Society in Yale College, in Everett, supra note 27, at 172, 174 ("The preparation for an occasion like this, is in the heart, not the head; it is in the attachments formed and the feelings inspired, in the bright morning of life. Our preparation is in the classic atmosphere of the place, in the tranquillity of the academic grove . . . ."). But even more frequently antebellum Americans combined head and heart. See, e.g., Knapp, Oration Pronounced Before the Society of Phi Beta Kappa at Dartmouth College, supra note 26, at 26 (crediting "libraries, schools, and religious communion" with "mending heart and improving the mind").
77. Stanley Elkins, Slavery 143 (1959); Bertram Wyatt-Brown, Stanley Elkins and Northern Reform Culture, in Bertram Wyatt-Brown, Yankee Saints and Southern Sinners 13, 17 (1985).
78. Margaret Fuller, Woman in the Nineteenth Century 17, 111 (1845).
79. Id. at 112.
80. Lysander Spooner, The Unconstitutionality of Slavery (1846). See also William Goodell, Views of American Constitutional Law in Its Bearing Upon American Slavery (Utica, NY, 1844); Robert Cover, Justice Accused: Antislavery and the Judicial Process 154-58 (1975). See also Randy E. Barnett, Was Slavery Unconstitutional Before the Thirteenth Amendment?: Lysander Spooner's Theory of Interpretation, 28 Pacific L. J. 977-1014 (1997).
81. Goodell, The American Slave Code in Theory and Practice, supra note 67, at 407.
82. See, e.g., Lawrence Kohl, The Politics of Individualism: Parties and Political Ideology in the Age of Jackson 145-85 (1989) (discussing "the individual and the rule of law"). Lectures to antebellum literary societies were typically synthetic, encapsulating and popularizing themes common in academic culture. As Edward Everett told a Yale audience in 1833:
The great utility of occasions like this, and of the addresses they elicit, is not to impart stores of information, laboriously collected; not to broach new systems, requiring carefully-weighed arguments for their defense, or a multitude of well-arranged facts for their illustration. We meet, at these literary festivals, to promote kind feeling; to impart new strength to good purposes; to enkindle and animate the spirit of improvement, in ourselves and others.
An Address Delivered Before the Phi Beta Kappa Society in Yale College, in Everett, supra note 27, at 172, 174. The lectures frequently emphasized the role of law in stabilizing society; the prevalence of that theme suggests the centrality of law to American thought. See, e.g., Parsons, supra note 71, at 9 ("In the governments which are to be established upon principles that are now beginning to manifest their character, and exert their power, the people will go to the law only, as their master; and the law will be the expression of public opinion, of public sentiment, of the general will."). See also infra notes 140-146.
83. Albert T. Bledsoe, Liberty and Slavery, reprinted in E.N. Elliott, ed., Cotton is King: The Proslavery Argument as Maintained by Writers 269, 278 (Augusta, GA, 1860).
84. Id. at 283.
85. Id. at 285. In a lecture given to the Virginia State Agricultural Society in 1858, James Holcomb addressed the question "Is Slavery Consistent with Natural Law?" James Holcomb, Is Slavery Consistent with Natural Law, 27 S. Lit. Messenger 401, 403 (1858). He started from the premise that "[T]here are involuntary restraints which may be rightfully imposed upon men." Human nature "forces upon us the necessity of submitting to the discipline of law, or living in the license of anarchy." From there, Holcomb argued that "society is our state of nature, and that men by the primary law of their being, are bound to live and perfect themselves in fellowship with each other." "Restraints upon rights of persons" were necessary to maintain society. Id. at 404.
86. Estates (In Politics), 4 Encyclopaedia Americana 585. 585 (Philadelphia, 1830).
87. Or perhaps McCord believed in moral absolutes, just ones different from reformers. See Speech of Mr. Webster, Cong. Globe, 31st Cong., 1st Sess., 269, 270-71 (March 7, 1850) ("[T]hese persons are disposed to mount upon some particular duty as upon a war horse, and to drive furiously on, and upon, and over all other duties, that may stand in the way. . . . They deal with morals as with mathematics, and they think what is right, may be distinguished from what is wrong, with the precision of an algebraic equation.").
88. Louisa McCord, Justice and Fraternity, S. Q. Rev. 356-74, reprinted in McCord, Essays, supra note 2, at 57-78.
89. Id. at 61.
90. Id. at 61.
91. Tidyman v. Rose, 9 S.C. Eq. (Rich. Cas.) 294, 301 (1832).
92. Samuel Young, A Discourse Delivered at Schenectady, July 25, A.D. 1826. Before the New-York Alpha of the Phi Beta Kappa 59 (1826).
93. Id. at 58, 60.
94. Id. at 73.
95. Id. at 74.
96. Id. at 72.
97. Id. at 77-78.
98. Louisa S. McCord, The Right to Labor, 16 S. Q. Rev. 138-60 (1849), reprinted in McCord, Essays, supra note 2, at 79, 85.
99. Id. at 84.
100. The Conservative, in 1 Emerson's Works, supra note 18, at 279, 281-82.
101. Louisa S. McCord, Diversity of the Races; Its Bearing upon Negro Slavery, 2 S. Q. Rev. 392-419 (1851), reprinted in McCord, Essays, supra note 2, at 159-86.
102. Id. at 163.
103. Id. at 170 (quoting Louis Agassiz, The Diversity of Origin of the Human Race, 49 Christian Examiner 110, 141-42 (1850)) (emphasis added by McCord).
104. Id. at 171.
105. Id. at 173.
106. The ethnographic debates seeped into Southern judicial minds. In Bailey v. Poindexter's Administrator, 55 Va. 428 (1855), the court interpreted the will of a Virginia master who offered freedom to his slaves who agreed to leave the country. The will effectively gave power to slaves to decide their fate--freedom or slavery. Counsel for the slaves argued that they had the capacity to choose for their right to freedom through evidence that slaves often exercised independent judgment. Counsel for the estate dismissed the argument, noting that "The court is not sitting as an ethnographic society, to ascertain and determine the peculiar natural or acquired characteristics of the negro race . . . ." Id. at 432.
Judge Chancellor William Harper of South Carolina, for instance, extensively discussed ethnographic theories in his proslavery oration, which was one of the most important defenses of slavery. See Chancellor William Harper, Slavery in Light of Social Ethics, in Cotton is King and Proslavery Arguments 549-626 (E.N. Elliott, ed., Augusta, GA, 1860).
107. See Miller, supra note 3, at 105 (classifying distinction as between head and heart); Peter Karsten, Heart versus Head: Judge-Made Law in Nineteenth-Century America (1997) (employing dichotomy between head and heart as central organizing axis for legal thought). Often jurists tried to combine both sentiments of the heart and reasoning of the head. Justice Henry Lumpkin of Georgia quoted from an opinion of Chancellor Kent in Stell v. Glass, 1 Ga. 475 (1846), discussing the relative responsibilities of judges and juries. Kent's remarks were "alike creditable to his head and heart." Id. at 488.
108. Louisa S. McCord, Negro and White Slavery--Wherein Do They Differ, 4 S. Q. Rev. 118-32, reprinted in McCord, Essays, supra note 2, at 187-202.
109. Id. at 187.
110. Many perceived the division between head and heart along gender lines. See, e.g., Fuller, supra note 78, at 17 (reporting statement of a husband on his wife, that "I am the head and she the heart"). McCord shatters that classification scheme.
Henry David Thoreau provides a classic example of the reformers' position that a utilitarian calculus of cost and benefit is inappropriate in the slavery context. His 1847 essay Resistance to Civil Government questioned the position of moral philosopher William Paley, who resolved obligation to government into a question of expediency. While Paley argued that "'so long as the interest of the whole society requires it, that is, so long as the established government cannot be resisted or changed without public inconveniency, it is the will of God . . . that the established government be obeyed['] . . . . But Paley appears never to have contemplated those cases to which the rule of expediency does not apply, in which a people, as well as an individual must do justice, cost what it may." [Resistance to Civil Government] Civil Disobedience, in 4 Thoreau's Writings 356, 361 (1908). Yet the measurement of expediency was important to many legislators. In debate over the Bankruptcy Act of 1841, for instance, Senator Anderson argued against the bill, because it would likely lead to more suffering than it prevented:
This measure, let it be remembered, has been urged by eloquent appeal to our sympathies; that he, whose head was bowed down, should be lifted up; that the tears of his wife, and his innocent children, would be dried; that the wretched and forlorn should again take their place in society. Sir, no man, I trust, feels more deeply for his fellow man than I do, or would go farther to relieve him under the pressure of distress. But, sir, does justice, does humanity require that we should save some by destroying others? That to dry tears, which already flow, that we should strike new fountains from which they would be shed more abundantly?
111. Id. at 189.
112. Id. at 189.
113. Id. at 189.
114. Id. at 197.
115. Id. at 199.
116. Abraham Lincoln, Address to the Young Men's Lyceum of Springfield, Illinois in Abraham Lincoln: Speeches and Writings, 1832-1858 28, 36 (Don E. Fehrenbacher, ed., 1989).
117. McCord, Negro and White Slavery, in McCord, Essays, supra note 2, at 200. The reformers took pleasure in characterizing their work as setting the world on fire. See Len Gougeon, Virtue's Hero: Emerson, Antislavery and Reform 150-60 (1990). See also Address, and Poem, Delivered Before the Beta of the Sigma Phi . . . (Utica, 1843) ("[T]ruth, instinct with immortal life, and clothed with an invisible yet resistless energy, shall go forth on its high mission, . . . pouring light and hope upon the darkness and despair of [tyranny's] victims; and shall go flaming on down the long track of the coming ages, illuminating successive generations as they rise . . . .").
118. McCord, Negro and White Slavery, in McCord, Essays, supra note 2, at 200.
119. See, e.g., The Rapid, 12 U.S. 155, 163 (1814) (Johnson) ("[I]t is the unenvied province of this Court to be directed by the head, and not the heart. In deciding upon principles that must define the rights and duties of the citizen and direct the future decisions of justice, no latitude is left for the exercise of feeling."); West River Bridge v. Dix, 47 U.S. (6 How.) 507, 521 (1848) ("It is easy to see, that, by a very slight improvement on the proceedings in this case, and in pursuance of the avowed principle, that, as to the exercise of this power of eminent domain, the legislature, or their agents, are to be the sole judges of what is to be taken, and to what public use it is to be appropriate, the most leveling ultraisms of Anti-rentism or Agrarianism or Abolitionism may be successfully advocated.") (Webster arguing). The jurists wrote of their duty to uphold the law, not to decide based on their feelings. See, e.g., Woodruff v. State, 3 Ark. 285, 298 (1847) ("This court can neither console the disappointed nor relive the distressed, in any other way, than by faithfully administering the law, and thereby securing to all their rights and privileges."); Allen v. McCoy, 8 Ohio 418, 466 (1838) ("It is no impeachment of the rules of law, or the development of times and circumstances, if they work together to make his negligence result in a hard case upon his pocket."). Politicians tried to take actions that drew upon both the heart and head. See, e.g., Proceedings and Debates of the Virginia State Convention of 1829-30 236 (Samuel Shepard, Richmond, 1830) ("Did not this state of mind afford the strongest incentives for calling into action every feeling of the heart, and every dictate of the head, to the perfection of their great work, with one united voice?"). Cf. Gordon, Book Review, supra note 16, at 445 ("participants in the debate want to establish the primacy of a certain view of the world, which if successful would help people like themselves control the way society perceives and reacts to reality.").
120. Louisa McCord, Uncle Tom's Cabin, supra note 2.
121. Louisa S. McCord, Charity Which Does Not Begin at Home, 19 S. Lit. Messenger 193-208 (1853), reprinted in McCord, Essays, supra note 2, at 321-49.
122. McCord, Uncle Tom's Cabin, supra note 2, at 253.
123. Id. at 267.
124. Id. at 268.
125. Id. at 267-68.
126. See, e.g., A Carolinian [Edward Pringle], Slavery in the Southern States 12 (J. Bartlett, Cambridge, 1852). Cf. [David Brown], The Planter; Or Thirteen Years in the South 37-40 (H. Hooker, Philadelphia, 1853) (discussing Stowe's image of a "brooding shadow" of law).
127. Stowe, Uncle Tom's Cabin, supra note 23, at 472-73.
128. Id. at 477.
129. See generally Alfred L. Brophy, Humanity, Utility, and Logic in Southern Legal Thought: Harriet Beecher Stowe's Vision in Dred: A Tale of the Great Dismal Swamp, forthcoming, 78 Boston University Law Review (October 1998) (discussing contours of Stowe's jurisprudence of sentiment and its relationship to proslavery legal thought); Alfred L. Brophy, "over and above there broods a portentous shadow--the shadow of law": Harriet Beecher Stowe's Critique of Slave Law in Uncle Tom's Cabin, forthcoming, 12 J. Law & Religion (1995-96).
130. McCord, Uncle Tom's Cabin, supra note 2, at 271.
131. Id. at 272.
132. Id. at 273.
133. Id. at 295 n.26.
134. Id. at 301-02 (citing John Belton O'Neall, Negro Law of South Carolina (John G. Bowman, Columbia, 1848), reprinted in 2 Statutes of Slavery: The Pamphlet Literature, series 7, 117-76 (Paul Finkelman, ed., 1988)). From O'Neal, McCord drew evidence that the "lowest slave cannot sink to the degradation of the outcast white." McCord, Uncle Tom's Cabin, supra note 2, at 305. Discussion of statutes frequently appeared in proslavery defenses of the law. See, e.g., Remarks of Representative Badger, Cong. Globe, 31st Cong., 1st Sess., 384, 385 (citing 1 North Carolina Rev. Statutes chap. 11, secs. 36-37, 39).
135. McCord, Uncle Tom's Cabin, supra note 2, at 308.
136. Id. at 309.
137. See, e.g., Speech of Mr. Hunter, Cong. Globe, 31st Cong., 1st Sess., 375-82 (March 18, 1850).
138. The examples that demonstrate the prevalence of respect for precedent and common law over humanity are extraordinary in number. See generally Horwitz, supra note 15, at 253-66 (discussing ways that judges limited legal reform). In her Key to Uncle Tom's Cabin, Harriet Beecher Stowe cataloged ways that legal
logic overtook humane sentiments towards slaves. She concluded:
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.
Stowe, A Key to Uncle Tom's Cabin, supra note 52, at 82. One might label her ideas a "jurisprudence of sentiment." Cf. William Goodell, The American Slave Code in Theory and Practice 405, 407 (American and Foreign Anti-Slavery Society, 1853) (urging "on all classes of his readers the claims of the enslaved," and questioning whether "the wise legislator, civilian, or jurist, . . . does not see and condemn, in 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 or restrain."). One leading call for a reliance upon humane sentiments in shaping the law came from William Ellery Channing, who argued in his lecture Slavery that "there is no deeper principle in human nature than the consciousness of rights." William Ellery Channing, Slavery 33 (James Munroe, Boston, 1835).
For a tiny sampling of judges' statements along the lines of McCord's thought, urging respect for law over sentiment, see Mebane v. Patrick, 46 N.C. 223 (1854) (rejecting defense of insanity to adverse possession claim, because "[t]hose who ought to have taken an interest in his affairs are to blame, if, by their neglect, an adverse claim has ripened into a title."); Executors of McDonogh v. Murdoch, 56 U.S. (15 How.) 367, 410 (1854) ("That property may be dedicated to public use is a well-established principle of common law. It is founded in public convenience, and has been sanctioned by the experience of ages. Indeed, without such a principle, it would be difficult, if not impracticable, for society, in a state of advanced civilization, to enjoy those advantages which belong to its condition, and which are essential to its accommodation.") (quoting New Orleans v. United States, 35 U.S. (10 Pet.) 662 (1836)); Ex Parte Bushnell, 9 Ohio 77, 183 ("I think, that the same adjudication which determines that Congress have no power to pass any law, determines also a precedent, that the construction of the Constitution shall demand upon the shifting private opinions of every judge in every state, who is called upon to give it an interpretation . . . ."). Occasionally judges allowed a small sphere for wide-spread community sentiment in determining the scope of rules. See, e.g., State v. Caesar, 31 N.C. 391, 413 (1849) (Ruffin, dissenting) ("But it has been repeatedly declared by the highest judicial authorities, and it is felt by every person, lay as well as legal, that the rule for determining what is a mitigating provocation cannot, in the nature of things, be the same between persons who are in equali jure, as two freemen, and those who stand in the very great disparity of free whites and black slaves.").
In some cases the connections between the political philosophers of McCord's intellectual world and Southern judges are visible. See Blount v. Harvey, 51 N.C. 186, 190 (1859) ("It must not be supposed that incidents of a novel kind can be devised and attached to property at the fancy or caprice of any owner. It is clearly inconvenient to the science of the law and the public weal that such a latitude should be given.") (quoting Lord Brougham); cf. David S. McCord, supra note 5, at 477 (citing Lord Brougham's Political Philosophy, supra note 7); Remarks of Senator Tallmadge, Cong. Globe, 26th Cong., 1st Sess., 797, 799 (May 22, 1840) ("[T]his proceeding, which appears to leave no further room for improvement, is what Lord Brougham calls 'the perfection of the law.'").
One common, powerful argument against alteration of the law drew upon the separation of the judge's role from that of the legislature. See, e.g, State v. Caesar, 31 N.C. 391, 409 (1849) ("[P]olicy never yet stript, successfully, the bandage from the eyes of Justice. It does not belong to the bench, but to the halls of legislation."). Judges were to be interpreters, not makers of the law. Justice Thomas Ruffin of North Carolina explained further the restraints the common law imposed on judges' ability to change the law in State v. Ephrain, 19 N.C. 160, 167 (1836):
It is true, that the exigencies of society have, from time to time, obtained, in some instances, judicial modifications of ancient rules of law, but this has been effect by slow and almost imperceptible degrees, and without a recurrence, at those times, to first principles, until a succession of inadvertent departures from the old rule, have so strongly established exceptions to it, that a court subsequently reviewing the whole ground, finds it more difficult and dangerous to attempt to re-establish the principle of its integrity, by retracing the steps of those who had lost sight of it, than to receive and enforce the rule, with its exceptions, all as they came down to us. . . . Courts cannot thus change their position, and frame anew original rules of law, or introduce exceptions not before found, either in terms or in principles.
Cf. Albert Barnes, An Oration on the Progress and Tendency of Science . . . 8 (Philadelphia, 1840) (http://www.okcu.edu/law/Brophy_Barnes.htm) ("There are two ways of attempting to understand the works of nature, or of ascertaining the relation and properties of things. One is, for the philosopher to . . . attempt to frame in his own mind a plan of what nature ought to be; the other to become the simple interpreter of nature, and to tell what she is."). Judges might reason by analogy, but the new principles announced should be "clearly deducible" from precedent. See, e.g., State v. Caesar, 31 N.C. 391, 403 (1849). Unless judges could see their way "clear as a sun beam," they hesitated to depart from the common law, id. at 411, for it "sheds a steady light upon the path of the jurist, and gives him a safe and fixed rule to govern himself by." Id. at 410. Justice Pearson asked, "Why should I desert this safe guide [the common law], to wander in the mazes of judicial discretion, and that too, in a case of life and death . . . which has been correctly designated by this Court, . . . as the worst and most dangerous of tyrannies." Id. Conflicting authories might, nevertheless, "shake, if . . . not overturn" common law rules. Downing v. Palmateer, 17 Ky. 64, 71 (1824).
On the occasions when courts did alter the law, dissenting judges appealed to a conservative vision of law. Marshall v. Baltimore & Ohio R.R. Co., 57 U.S. (16 How.) 314, 354 (1850) (Nelson, dissenting) ("I can consent to overturn none of the precedents or principles of this court to bring them within their control or influence. I consider that the maintenance of the Constitution, unimpaired and unaltered, a greater good than could possibly be effected by the extension of the jurisdiction of this court, to embrace any class either of cases or of persons."); cf. Luther v. Borden, 48 U.S. (7 How.) 1, 85 (Woodbury, dissenting) ("It is to be hoped we have some national ambition and pride, under our boasted dominion of law and order, to preserve them by law, by enlightened and constitutional law, and the moderation of superior intelligence and civilization, rather than by appeals to any of the semibarabarous measures of strife which characterized and disgraced those ages.").
139. See, e.g., Henry St. George Tucker, Lectures on Natural Law (Charlottesville, Va, 1843). Professor Tucker's lectures, which are essentially lectures on moral philosophy tailored to law students, themselves deserve a treatment similar to McCord's essays. Many of the themes appearing in her essays track closely Tucker's, such as the importance of preservation of society. See id. at 8-11.
140. Bruce Kuklick, Churchmen and Philosophers: From Jonathan Edwards to John Dewey 128-45 (1985) (discussing dominance of common sense rationalism in college classrooms before Civil War). Phi Beta Kappa lecturers proved particularly strong supporters of the vision of law against "ultraisms." See, e.g., William G. Goddard, An Address to the Phi Beta Kappa Society of Rhode Island 21 (Boston, 1837) ("We have ultras in philanthropy, who in the impetuosity of their zeal, sacrifice to an abstraction the substantial welfare of their fellow men; who make rash applications of admitted truth, and who seem to forget that, in carrying out one principle, however sacred, we must never trample upon other principles which are no less obligatory upon the conscience.").
In a few classrooms, an alternative vision was emerging. See Daniel Walker Howe, The Unitarian Conscience: Harvard Moral Philosophy, 1805-1860 121-48 (1972) (exploring Unitarian moral philosophy, which included a component of humanity and community). Emerson's Phi Beta Kappa lectures at Harvard and Dartmouth are leading examples. See The American Scholar in Emerson's Works, supra note 18, at 83-115; Literary Ethics, in id. at 151-80. But many Phi Beta Kappa lectures opposed the transcendental movement. Shortly after Emerson's 1837 American Scholar lecture, many began appearing that countered the idea that students should re-examine accepted ideas. Heman Humphrey, speaking to Yale's Phi Beta Kappa meeting in 1838, criticized those who thought that students should be trained for "action, action, action, and nothing else." Humphrey, supra, note 24, at 14. Humphrey contemptuously classified transcendentalist-inspired ideas:
It is getting to be popular doctrine, that not only should every exciting topic be freely discussed in college, but that the students should be organized into as many societies as possible, for efficient and heated action;--and, in fine, that, since every young man in American was demonstrably born to move the world, it is a monstrous waster of time and power, to spend so many years in finding the pou sto. The lever of Archimedes must therefore be put into the hands of the tyro, long before he has learned where to place the fulcrum, or at which end the power is to be applied.
Id. at 14. Even many who celebrated, with Emerson, the American scholar's engagement in the pursuit of useful knowledge, did not support his reexamination of received wisdom. See, e.g., Barnes, supra note ?, at 10 ("The grand distinction between ancient and modern philosophy is, that the latter aims at utility and progress; the former disdained to be useful."). Many of the lecturers began with the premise that progress required building upon previous generations' work. See, e.g., Edward Everett, Address Delivered Before the Literary Societies of Amherst College, August 25, 1835, in Everett, supra note 27, at 213, 227 ("I deem it mere popular prejudice to suppose, that the march of original genius, to the heights of learning, has been impeded, by the possession of the modern facilities, to aid its progress. To maintain this seems to be little else than to condemn, as worthless, the wisdom of the ages which have gone before us. It is surely absurd to suppose that we can do no more, with the assistance of our predecessors, than without it; that the teachings of one generation, instead of enlightening, confound and stupify that which succeeds; and that, 'when we stand on the shoulders of our ancestors, we cannot see so far as from the ground.'").
141. Knapp, supra note 26, at 15.
142. Henry St. George Tucker, Introductory Lecture Delivered by the Professor of Law in the University of Virginia 4 (Charlottesville, 1841).
143. Id. at 7.
144. James C. Biddle, Annual Oration Delivered Before the Philomathean Society of the University of Pennsylvania 11 (Philadelphia, 1832)
145. Kent, Address Pronounced Before . . . Union College, supra note 26, at 28 (proclaiming "I love the word moderation.") (italics in original).
146. Lectures to college literary societies provide a detailed portrait of the role that education played in controlled progress. James Gould's 1825 lecture at Yale, for example, credited "the empire of the intellect" with everything good that had happened in human history: "Every consideration, which can render the advancement of the human race, in whatever is noble, or useful, or estimable, a desirable object, must, necessarily, recommend those pursuits, which conduce to the improvement of the higher and nobler powers of our nature." James Gould, An Oration Pronounced at New Haven, Before the Connecticut Alpha of the Phi Beta Kappa Society 4, 7 (New Haven, 1825) (http://www.okcu.edu/Brophy_Gould.htm). Gould saw the "practical utility of high advancement, in liberal knowledge" as the advancement of government. "Submission to civil, or martial rule, is the effect of a train of influence, operating, through all the gradations of authority, upon the minds of men." Id. at 7. As people became educated, they decreased their susceptibility to tyranny. Many of the lecturers were concerned with providing a justification for liberal studies, given that the "taste of the age is eminently practical." Goddard, supra note 140, at 4. And one primary justification was the power that education had to moderate people. Speaking before Uncle Tom's Cabin shattered this notion, William Goddard told his audience that the "spirit of literature is essentially conservative. It forms a graceful alliance with whatever is elevated in thought or action; it abhors violence; it is not rampant for change." Id. at 20. Likewise, Joseph Ingersoll linked education, obedience to law, and social harmony for his audience at Bowden:
When all the institutions of our country shall rest upon a basis of sound philosophy--when all the well educated and informed shall compose one great family, striving, in glorious emulation, to diffuse just principles of government, and to preserve, by precept and example, universal tranquility and obedience to the laws--the utmost reach of respectability abroad, and happiness at home, will be attained, which can belong to human society.
Joseph R. Ingersoll, An Address Delivered Before the Phi Beta Kappa Society, Alpha of Maine in Bowden College 13 (Brunswick, 1837) (http://Brophy_Ingersoll2.htm). William Kent, speaking 1841 at Union College, "apprehend[ed] no essential change in the institutions, whose operations come home to the business and bosoms of men, from the ultraism of Democracy on the one hand, or from a reaction on the other of a spirit adverse to republican equality." Kent, supra note 26, at 14. One example of the stability came from a politician's proposal to abolish inheritance:
His system, and all like it -- such as Fourier, which would break up the division of families, or Owen's, of Lanark, who would have us all live in parrallelograms -- are the natural results of a restless love of notoriety, or of political ambition, that to get itself patronized makes itself feared; or of eccentricity, sometimes rising to, and intermingling with, actual insanity, or of some or all of these causes combined; and dissolve, like waves against the rock, when opposing institutions, reared by the habits of ages, intertwined with the interests of the many, and founded on the deep, instinctive feeling of the heart. No political revolution ever did take place --unless by external force, as when Alaric and the Goths, or Mahomet and the Saracens, planted foreign nations in the country of the conquered--in which the institutions, affecting national habits, manners and interests, were suddenly changed. We certainly shall not witness such a revolution in our times.
Id. at 14.
147. See, e.g., Green v. Biddle, 21 U.S. (8 Wheat.) 1, 75-77 (1823); McArthur, 1 Ohio 99 (dissent) (urging respect for legal rules once established).
Emerson similarly identified the claim that property rights held over the mind and its consequent basis in law in his essay The Conservative:
The system of property and law goes back for its origin to barbarous and sacred times; it is the fruit of the same mysterious cause as the mineral or animal world. There is a natural sentiment and prepossession in favor of age, of ancestors, of barbarous and aboriginal usages, which is a monage to the element of necessity and divinity which is in them. The respect for the old names of places, of mountains and streams, is universal. The Indian and barbarous name can never be supplanted without loss. The ancients tell us that the gods loved the Ethiopians for their stable customs; and the Egyptians and Chaldeans, whose origin could not be explored, passed among the junior tribes of Greece and Italy for sacred nations.
1 Emerson's Works, 279, 287. The same essay recognizes stability as inherent in all societies: "You who quarrel with the arrangements of society, and are willing to embroil all and risk the indisputable good that exists, for the chance of better, live, move, and have your being in this, and your deeds contradict your words every day. For as you cannot jump from the ground without using it . . . so you are under the necessity of using the Actual order of things, in order to disuse it . . . ." Id. at 288.
148. Cooper, supra note 6, at 528. The anti-rent movement resulted when tenant farmers with long-term leases began to urge the New York legislature to pass a statute allowing them to convert their leases into freeholds. The movement, which freely employed upon anti-feudal rhetoric, drew together strands of democratic thought. McCord's invocation of it crystallized an entire body of thought in her readers' minds. See generally David Davis, Antebellum American Culture: An Interpretive Anthology 136-43 (1979); John Reeve Huston, Land and Freedom: The Anti-Rent Wars, Jacksonian Politics, and the Contest over Free Labor in New York, 1785-1865 (Yale Univ., Ph.D. dissertation, 1994).
Courts recognized the prerogative of legislatures to alter the law to comport with their vision of fairness, as the Kentucky Supreme Court did in 1827. "Our legislature, supposing that such power entrusted to the landlord might be an engine of oppression, has imposed a check upon it, by requiring the oath of the landlord as to what is due, and directing a justice to issue the warrant . . . ." Hall v. Amos, 21 Ky. 89, 90 (1827).
149. See Miller, Life of the Mind, supra note 3, at 103-06; Catherine Zuckert, Natural Right and the American Imagination: Political Philosophy in the Novel Form 11-37 (1991). See also Rush Welter, The Mind of America, 1820-1860 188-89 (1975) (discussing variants of respect for law in Democrat ideology).
150. Important writings emphasize the role of courts and legislatures in regulation in the antebellum era. See, e.g., William Novak, The People's Welfare: Regulation in the Nineteenth Century (1996). Nevertheless, when it came to redistribution of property between individuals there was substantial opposition in the legislatures and the courts. The vision that law should protect established expectations, rather than serve as a leveling or equalizing force, was the position of jurists as well as McCord. See, e.g., Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1827). It was also the basis for opposing abolition of slavery, for, one proslavery argument went, slavery had been entailed upon the South. See William Smith, Lectures on the Philosophy and Practice of Slavery 159-63 (Nashville, 1856). Pursing a closely parallel track of reasoning, proslavery writers also argued that taking away slaves was comparable to returning Northerners' land to Native Americans. See Eastman, Aunt Phillis' Cabin, supra note 1, at 133 ("[W]e have as good a right to our property as you to yours--we each inherit it from our fathers. You must know that slaves are recognized as property under the Constitution."). While there were divisions over government-sponsored internal improvements, there was little serious disagreement about the role of courts in protecting expectations. Novak, supra, at 85.
151. Herman Melville, Pierre: Or, The Ambiguities 98 (1853) (reprinted 1929).
152. McCord, Uncle Tom's Cabin, supra note 2, at 272.
153. Eugene Genovese discusses each of those and many other important Southern thinkers in The Slaveholders Dilemma: Freedom and Progress in Southern Conservative Thought, 1820-1860 (1992).
154. See generally Elizabeth Moss, Domestic Novelists in the Old South: Defenders of Southern Culture 101-36 (1992) (discussing ways that proslavery women novelists translated political ideas into fictional form). However, no one has yet fully gathered and cataloged the sophisticated ideas about legal thought in the proslavery responses to Uncle Tom's Cabin written by the proslavery women. See, e.g., Eastman, Aunt Phyllis' Cabin, supra note 1, at 133 (analogizing treatment of slaves to treatment of native Americans' property rights).
155. See generally John Farmer, The Metaphysical Confederacy: John Henley Thornwell and the Synthesis of Southern Values (1986); William Freehling, The Road to Disunion: Secessionists at Bay, 1776-1854 (1990); Drew Faust, A Sacred Circle: The Dilemma of the Intellectual in the Old South (1978); William R. Taylor, Cavalier and Yankee: The Old South and American National Character (1963).
156. See, e.g., G.P.A. Healy, Webster Replying to Hayne, reproduced in Merrill D. Peterson, The Great Triumvirate: Webster, Clay, and Calhoun frontispiece (1987). It may be odd, however, that the artist used to remind us of the importance of women in antebellum political culture is a man, not a woman, such as Lily Martin. Her art, like that of antebellum women novelists, emphasized domestic themes, even as it treated political upheaval. See David M. Lubin, Picturing a Nation: Art and Social Change in the Nineteenth
Century 189-93 (1994) (discussing Martin's Artist and Her Family at a Fourth of July Picnic). It is not, however, remarkable that the best-known work of art from the Confederacy, William D. Washington's Burial of Latané, depicts a woman in a typically domestic role, presiding over the burial of a Confederate soldier. See Drew Gilpin Faust, Southern Stories: Slaveholders in Peace and War 148-59 (1992) (discussing Burial of Latené).
157. The image of light and shadows itself captured Southern imagination in the antebellum era. See, e.g., Henry St. George Tucker, supra note 139, at 25 ("[W]hat is to be our guide in this pursuit after moral rectitude. The answer is 'the light of reason.'"); Dew, supra note 19, at 211 ("the history of Greece will still shed a twilight over the dark scene--inspire some consolation amid the general gloom. . . ."). The imaginative world of the antebellum lawyers was composed of light, dark, and shadows. See, e.g., Nathan Beverly Tucker, Lectures on the Science of Government 291 (Philadelphia, 1852) ("It is true that the sun of science has but lately risen on this western world"); Joseph Story, Science and Letters, in Representative Phi Beta Kappa Lectures 37, 49 (Clark S. Northup ed., 1927) (Phi Beta Kappa Lecture, Harvard University, 1826) (Commercial law "started into life with the genius of Lord Mansfield, and gathering in its course whatever was valuable in the earlier institutes of foreign countries, has reflected back upon them its own superior lights, so as to become the guide and oracle of the commercial world."); id. at 64 ("We must guide our footsteps by those stars, which have shone and still continue to shine with inextinguishable light in the firmament of learning").
158. Cf. Jane Tompkins, Sentimental Power in Uncle Tom's Cabin, in Ideology and Classic American Literature 267, 268-69 (Sacvan Bercovitch & Myra Jehlen, eds., 1986) (urging introduction of sentimental literature into the canon of classics of nineteenth century literature).
159. Story, An Address . . . Before the Members of the Suffolk Bar, supra note 43, at 29. Elsewhere Story referred to Constitution's "masculine majesty." See id. at 26. ("It depends upon the present age, whether the national constitution shall descend to our children in its masculine majesty to protect and unite the country, or whether, shorn of its strength, it shall become an idle mockery, and perish before the grave has closed upon the last of its illustrious founders."). See also Charles River Bridge v. Warren Bridge, 36 U.S. 420, 493 (1837) ("Indeed, there is in the whole of that opinion, such a masculine vigour, such a soundness and depth of learning, such a forcible style of argumentation and illustration; that in every step of my own progress I have
sedulously availed myself of his enlightened labours."); M'Ilvaine v. Coxe's Executor, 6 U.S. 280, 325 (1804) ("There strong and masculine understanding of Mr. Locke revolted at the illiberal ideas of English jurisprudence in this particular. . . .").
Samuel Young contrasted the law with "female benevolence" in his lecture at Union College in 1826. The New York poor law "eclipses half the loveliness of the character of woman, by interposing its opaque form, between the shivering child of want, and the sun-shine of her soul." Young, supra note 92, at 59. Often judges contrasted men and women when discussing rules. See, e.g., Barbara Y. Welke, Unreasonable Women: Gender and the Law of Accidental Injury, 1870-1920, 19 Law & Social Inquiry 369 (1994); at other times they proposed rules with the ostensible purpose of protecting women. See, e.g., Larson, supra note ?. At other times courts that adopted "gendered" rules they failed to acknowledge the influence of women as parties. See, e.g., Lea S. Vander Velde, The Gendered Origins of the Lumley Doctrine: Binding Men's Consciences and Women's Fidelity, 101 Yale L. J. 775-852 (1992) (suggesting that courts were more likely to adopt rule prohibiting workers who breached employment contract from working for another employer when women were the breachers than when men were); cf. Lea Vander Velde, The Legal Ways of Seduction, 48 Stan. L. Rev. 817-901 (1996) (exploring development of judicial doctrine regarding seduction and showing that doctrine punished the same offenses that had culture had previously punished). A lawyer for a woman might argue that she was particularly susceptible to fraud, for example. See Gratz' Executors v. Cohen, 52 U.S. 1, 19 (1850) ("It is next said . . . that Mrs. Phillips was an aged female, little accustomed to business, and likely to be overreached by so shrewd and capable a man as Simon Gratz."); Margo Schrager, Injured Women before Common Law Courts, 1860-1930, 21 Harv. Women's L. J. 79-140 (1998). At other times, a court reasoned from traditional concepts of how men should behave to draw conclusions about how they actually behaved. In one case, the Supreme Court thought that the picture painted by counsel of a defendant was so depraved that it asked, "can it be supposed, without the strongest evidence, that a wretch exists, so lost to all the better feelings of the heart"? 36 U.S. 229, 251 (1837).
160. Ralph Waldo Emerson, Lecture on the Times, in 1 Emerson's Works 247, 248.
161. Id. at 247.
162. See Gordon, Book Review, supra note 16; Miller, Life of the Mind, supra note 3, at 239-65.
163. See, e.g., Thomas Cooper, Codification, Southern Review 390-421 (1831) (opposing codification as interference with judges' authority). Cooper charges the codifiers with mischaracterizing the nature of American law:
They express themselves upon the subject of our law, precisely as if they were holding forth to a radical meeting in London. Feudal barbarism, especially, is forever in their mouths, just as if every word of Littelton were as much the law now, as when he wrote--just as if the learning of the year-books were
not almost entirely obsolete among us--just as if the whole law of contracts--beyond all controversy the most important part of our jurisprudence . . . were not either derived . . . through Lord Mansfield and other great judges from the Justinian collection, or from the enlightened commercial policy and opinions of an advanced state of society, and were not, strictly speaking, a part of the jus gentium of cultivated nations!
Id. at 394. Where many codifiers sought to curb the power of judges, id. at 402, Cooper sought to retain the flexibility the common law afforded judges:
The question arising upon such a law is not what is reasonable, but what is commanded--and in the case of a contract, not what the community at large understand by a given form of words, but what the author of the statute meant. The business of the interpreter is that of a grammarian and philogist . . . required to expract from a given number of letters and syllables, the intention, more or less clear, of a self-willed dictator. In the case of a single statute, it is often impossible to come to any satisfactory conclusion--because, it may be absolutely impossible to derive any assistance from general reasoning on the analogies and policy of the law. The memory, therefore, is not assisted by the usual helps of philosophical connexion and arrangement.
Id. at 403. The primary advantage of the common law was its resistance to change. While statutes might be altered dramatically, the common law, which relied upon "general reasoning," promised continuity. "Even supposing a code perfectly well done, we do not think the game worth the candle--but if it be inartifically [sic] executed, the labours of six centuries are utterly thrown away." Id. at 411.
164. James Walker, An Inquiry into the Use and Authority of Roman Jurisprudence in the Law Concerning Real Estate 44-45 (Walker and James, Charleston, 1850). On Walker, see Michael Hoeflich, Law and Geometry: Legal Science from Liebniz to Langdell, 30 Am. J. L. Hist. 95 (1986).
165. Id. at 45.
166. Louisa McCord, Justice and Fraternity, S. Q. Rev. 356-74, reprinted in McCord, Essays, supra note 2, at 61.
167. Id. at 62.
168. Id. at 63.
169. Thomas R.R. Cobb, An Inquiry into the Law of Negro Slavery in the United States xxxv (Philadelphia, 1858).