"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

Alfred L. Brophy*

forthcoming, 13 Journal of Law and Religion ___ (1996-97)

* Assistant Professor of Law, Oklahoma City University, and Ph.D. candidate, History of American Civilization, Harvard University. A.B., University of Pennsylvania, 1987; J.D., Columbia University, 1990; A.M., Harvard University, 1993.

I would like to thank my teachers Alan Heimert, Alan Hodder, and Morton J. Horwitz, as well as Victor Cook, Paula J. Dalley, and an anonymous referee for the Journal of Law and Religion for their comments on this essay. The comments of Mary Bilder, Daniel Hulsebosch, Arthur LeFrancois, and John O'Keefe on a related essay have been useful in revising this one. The Woodrow Wilson Foundation's Mellon Fellowship in the Humanities and OCU's Robert S. Kerr Faculty Research Fund provided financial support while I wrote this essay.

"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

• I. Evangelical Religion, Slavery, and Law: The Struggle Between Heart and Head
  
  
• II. Uncle Tom's Cabin and the Critique of Slave Law
  
  

  A. Indictment of Slave Law

  1. Law Fails to Protect Slaves
  2. Law Prevents Kind Treatment
  3. Law Releases Harm

  B. Advocacy of Violation of Slave Law: "Your heart is better than your head"

  
  
  

• III. The Proslavery Reaction
  
  

  A. Head versus Heart: The Response to Stowe
  B. Responses to Stowe's Criticisms of Slave Law

  1. Law Not Responsible for Hardships
  2. Law Adequately Protects Slaves
  3. Slaves Treated Well: The Sphere of Sentiment
  4. Law Permits Free Workers to be Treated Poorly
  5. Proslavery Novels: The Fictional Responses to Uncle Tom's Cabin

  
  
  

• IV. The Interplay of Religious Beliefs, Sentimentality, and Law
  
  

  A. Stowe and the Reform of Law in Antebellum America B. Proslavery Thought and Judicial Formalism

  
  
  

• Conclusion

"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

Southern proslavery writers recognized that the powerful imagery employed by abolitionist writers such as Harriet Beecher Stowe was among the abolitionists' most potent weapons in fighting slavery.⁽¹⁾ Southern reviewers of Stowe's 1852 novel Uncle Tom's Cabin criticized Stowe most frequently for mischaracterizing the harshness of slavery. William Gilmore Simms, who published his novel Woodcraft as a proslavery answer to Stowe in 1854, thought her novel was a gross misrepresentation of the South:

There is a work of fiction, recently published by Mrs. Stowe, which is just now the rage with the abolitionists; the great error of which, throughout, consists in the accumulation of all the instances that can be found of cruelty or crime among the slaveholders. . . . She shows us a planter of Louisiana, as one of the most heartless, bloody, brutal, gross, loathsome and ignorant wretches under the sun. . . . but in doing so, she herself isolates him. She shows that he resides in a remote, and scarcely inaccessible swamp region, where his conduct comes under no human cognizance. How is society answerable for his offenses? How does he represent the condition and character of the slaveholder?⁽²⁾

But also distressing to the Southerners and to other critics of the abolitionists was the effect of Uncle Tom's Cabin on respect for law. One North Carolina reviewer of the novel recognized its potential for destroying not just slavery but the legal system surrounding slavery as well. He protested:

When we defeat the execution of the law, Constitutionally and regularly administered, we may benefit the individual, but we certainly wrong society itself, the welfare and stability of which depend upon the stability of law. We have no right to do a positive good to the few, when our act involves a positive injury to the many.⁽³⁾

This essay discusses the ways in which Stowe's religious background drove her critique of slave law and how Southerners responded to her critique. It tries to recover the context of abolitionists' view of law along with that of their proslavery responders. It interprets the novel as part of the struggle between evangelical religious thought and legal thought for control of the American mind before the Civil War and assesses Stowe's contribution to the struggle.

The essay argues that Stowe's religious background, which accented the importance of individual, passionate concern for humanity over a cold, logical approach to law and religious doctrine, nourished her position in the novel. Part I shows the general struggle of evangelical and Unitarian religious thought against slavery and how that generalized critique of slavery indicted the legal system surrounding slavery as well. Part II turns to Uncle Tom's Cabin to detail the ways that Stowe critiqued law. Through her scenes, readers learned that laws forced even kind masters to sell their slaves and that laws released cruel masters from liability for their cruelties. To reveal the reaction to Stowe's ideas and to illuminate the "legal mentality" that clashed with Stowe's passions, Part III examines Southern responses to Uncle Tom's Cabin. Those positions represented different conceptions of law's role in society. Abolitionists sought a jurisprudence based on love, while he proslavery responders emphasized the role of law in maintaining order. Together, Parts II and III, describing the debate over humanity and law fueled by the novel, demonstrate that Stowe's novel, which has benefited in the last decade from an extraordinary scholarly renaissance, contained an attack on law that scholars have failed to consider.⁽⁴⁾ Part IV turns to the implications of Stowe's critique of law for our understanding of the nature of law reform in antebellum America. It suggests that there was a close connection between religious beliefs and respect for law in antebellum America and indicates how popular literature might have influenced respect for law. Then it suggests that the formal style judicial reasoning may have resulted in part from proslavery thought.

I. Evangelical Religion, Slavery, and Law: The Struggle Between Heart and Head

In his 1965 book The Life of the Mind in America from the Revolution through the Civil War, Perry Miller showed that a central theme of intellectual life in antebellum America was the struggle between "heart" and "head" for control of American ideology.⁽⁵⁾ On one side of the struggle were revivalists, who, according to the lawyer-turned-minister Charles Grandison Finney, had a passionate eloquence: "that gushing, impressive, persuasive oratory that naturally flows from an educated man whose soul is on fire."⁽⁶⁾ The evangelical heritage, Miller wrote, included concepts of "sublimity, of the heart, of benevolence, and the millennium."⁽⁷⁾ On the other side of the struggle were lawyers, whose central concern was the control of passion through law. The cold, restrained approach to law made particularly strong appearances in judicial opinions related to slavery. For example, in State v. Mann Justice Thomas Ruffin of the North Carolina Supreme Court overturned the conviction of a white man for abusing a slave in his care.⁽⁸⁾ Ruffin, confessing his "sense of the harshness" of the result, emphasized the importance of a cool, legal response: "[I]t is criminal in a Court to avoid any responsibility which the laws impose."⁽⁹⁾

Stowe had long been interested in the conflict between law and humane feelings. One of her first published essays, Love versus Law, centered around an old man, Uncle Jaw, who was obsessed with his legal rights. Uncle Jaw refused to allow his son, Joe, to marry an orphaned neighbor, Susan Jones, with whom he had a property dispute. But Deacon Enos, who had a legally valid claim to Susan's land, offered to give the land to Susan and Joe if Uncle Jaw allowed the marriage. The incredulous Uncle Jaw asked why the Deacon would do that? He did so to make peace.⁽¹⁰⁾ Similarly, in her second antislavery novel, Dred: A Tale of the Great Dismal Swamp, Stowe addressed in detail the separation between feelings of humanity and law; she asked why a fictional judge, who recognized the inhumanity of the slave law and opposed slavery in private, failed to reform the law.⁽¹¹⁾ Her work advocated a world governed by humane values rather than law.

An important part of the evangelicals' fervor came from their optimistic belief that perfection was within the realm of human power to achieve. Legislators, motivated by the periodic religious revivals that dominated American religious experience between 1800 and the Civil War, strove for reform of laws in areas ranging from domestic relations to temperance, from prostitution to education.⁽¹²⁾ They believed that laws could reshape morality. Abolitionism was one of the religiously inspired reform movements that attempted to reform morals through religious piety, as well as through direct action and legislation.⁽¹³⁾ Abolitionists often employed sentimental stories to evoke an emotional response from their audiences. They hoped in that way to create a passion in their audiences that would overcome cold proslavery thought.⁽¹⁴⁾

Many of the early abolitionist writings, such as Horace Binney's The American Churches the Bulwark of Slavery, attacked churches for their support of slavery.⁽¹⁵⁾ Boston Unitarian minister William Ellery Channing, whose religious beliefs often placed him at odds with Stowe, articulated much of the religious critique of slavery in his 1835 pamphlet, Slavery. Written when the American antislavery movement was undergoing a fundamental transformation, dividing into those advocating immediate emancipation and those favoring gradual emancipation, Channing boldly began his tract by pronouncing that "the first question to be proposed by a rational being, is not what is profitable, but what is Right."⁽¹⁶⁾ Channing then established the basis for evaluation of what was Right: "fidelity to the Everlasting Law written on the heart, and rewritten and republished in God's Word."⁽¹⁷⁾ From there Channing evaluated the morality of slavery according to the spirit of Christianity. The spirit required "universal justice. It respects all the rights of all beings. It suffers no being, however obscure, to be wronged, without condemning the wrong doer. Impartial, uncompromising, fearless, it screens no favorites, is dazzled by no power, spreads its shield over the weakest, summons the mightiest to its bar, and speaks the conscience in tones, under which the mightiest have quailed."⁽¹⁸⁾ Against that standard, Channing found slavery wanting.

By the early 1850s evangelical religious leaders, such as Harriet Beecher Stowe's husband, Calvin Stowe, who served as President of Lane Theological Seminary in Ohio, had developed a comprehensive antislavery religious doctrine, which asserted that slavery is inconsistent with Christ's teaching, demanded that human-made laws supporting slavery should be disobeyed, and claimed that slavery depressed the wages and quality of life of free workers.⁽¹⁹⁾ John Lawrence's 1854 survey of The Slavery Question,⁽²⁰⁾ effectively an introduction to evangelical thought on law and slavery, defined slavery in terms of law: Slavery is "property in a human being."⁽²¹⁾ The slaves' status as mere property showed the connection between American slavery and Roman slave code, "which was conceived in the dark night of heathenism . . . before that empire had been enlightened and conquered by the peaceful."⁽²²⁾ Lawrence cataloged the evils of the slave system, using examples drawn largely from the codes of the slave states and from lawyers' writings, including the denial of education for slaves and the failure of the slave system to recognize slave marriages.⁽²³⁾ Slavery also disregarded family relations. Only Louisiana had a law prohibiting the separation of families, and its law seemed to be a "dead letter." Moreover, slaves were left without any of the fruits of their labor because they were prevented by law from owning property or making contracts. Finally--and most important--slavery subjected slaves to the tyranny of their masters. Lawrence told the story of a minister visiting a prison in New Orleans where fugitive slaves were incarcerated and where masters could, for a fee, have their slaves punished. The minister witnessed a young woman being viciously whipped and crying out to her owner to spare her life. The minister reminded Senator Charles Sumner, the recipient of his report, that the woman had been convicted of no crime. "She was brought by her master to be whipped by the common executioner, without trial, judge or jury, just at his beck or nod, for some real or supposed offense, or to gratify his own whim or malice." As Lawrence grimly recalled, "[A]ll this is done according to law."⁽²⁴⁾

The religious basis of antislavery, which was associated with the belief that moral reform could cure all of society's ills, was impelled by moral outrage over slavery. Particularly influential was American Slavery As It Is,⁽²⁵⁾ an 1838 book written by the Presbyterian minister Theodore Weld, based on Southern newspaper accounts of slavery. Fundamental religious sentiments, combined with the Reverend Henry Ward Beecher's belief that "none but the Law-giver himself . . . [could] make exceptions to his own laws",⁽²⁶⁾ made for a strong religious attack on slave laws.

A natural corollary to the abolitionists' beliefs in the immorality of slavery was the conviction that people should follow God's command, even if it opposed laws made by people. Despite setbacks for this belief in the courts, it gained increasing strength among abolitionists after 1835.⁽²⁷⁾ When the Fugitive Slave Act was passed as part of the Compromise of 1850,⁽²⁸⁾ abolitionists frequently asserted that they had a duty to obey the "higher law" rather than an Act of Congress. William Hosmer's book The Higher Law in its Relation to Civil Government proclaimed that "slavery is the creature of law. It originates in the law, and depends upon it for its existence."⁽²⁹⁾ Hosmer articulated a general theory that human-made laws inconsistent with biblical teachings should not be obeyed. Many Northerners applied such a theory to the Fugitive Slave Act, which commanded Northern law enforcement officers to aid in the return of fugitive slaves. The Act was vilified by antislavery advocates for requiring Northern states to cooperate in the return of fugitive slaves to their masters; particularly offensive were the provisions that allowed a slaveowner to track a slave into a free state, then either personally arrest the slave or enlist the aid of local law enforcement officers to recapture the slave. Under the law, the slave was brought before a local magistrate for a summary proceeding. The owner needed only to show proof of the identity of the slave and proof of ownership (an affidavit from the owner's home jurisdiction sealed by a magistrate in the owner's jurisdiction sufficed). No defense was possible, nor was the alleged slave allowed to testify. Through the Act, the hand of the federal government reached into Northern states, and federal law superseded local law and commanded local law enforcement officers to take action.⁽³⁰⁾

Many radical abolitionists rebelled against the thought that they would be required to enforce proslavery law. One such person was Henry David Thoreau, whose works illustrate the beliefs of radical abolitionists regarding the extent to which they were bound (or actually not bound) by laws made by humans. Because of his extensive writings on slavery, Thoreau serves as a means of exhuming the attitudes of the abolitionist ranks that Stowe occupied, even though Stowe came from a different religious background. Thoreau explicitly attacked the formal law in such works as his 1847 essay Resistance to Civil Government, which explained his opposition to the government because "it is not desirable to cultivate a respect for the law, so much as for the right."⁽³¹⁾ In his address Slavery in Massachusetts, delivered on the fourth of July 1854, Thoreau assailed the use of the Massachusetts militia to return fugitive slave Anthony Burns to his master. Thoreau recognized that the "so-called" "courts of justice," relying upon the Constitution, had ordered the return of Burns. Yet the courts were worthy only of contempt. Thoreau looked to higher law than the Constitution and argued that "[t]hey are the lovers of law and order, who observe the law when the government breaks it."⁽³²⁾

Against this background of religious zeal and dedication to "higher law," this essay turns to an examination of how Stowe depicted law in Uncle Tom's Cabin and the lessons that she likely intended her readers to draw from it.

II. Uncle Tom's Cabin and the Critique of Slave Law

The Fugitive Slave Act, which was passed by Congress to quiet debate over slavery, failed in its intended purpose. By the winter of 1850, abolitionist papers were filled with stories of blacks living in Northern states who were recaptured and returned to slavery. Many Northerners made repeated attempts to see that the odious law was followed, with speeches delivered from the pulpit and the bench and editorials printed in newspapers.⁽³³⁾ Sermons with titles like Obedience to Human Law urged respect for the law.⁽³⁴⁾ Even the moderate antislavery lawyer Benjamin R. Curtis, a future dissenter in the Dred Scott decision, warned that "if there is a case for forcible resistance of law . . . it can be nothing less than a case for revolution, and in a revolution it must end, if its progress be not checked."⁽³⁵⁾

By early 1851 Harriet Beecher Stowe was growing frustrated with such "exceedingly cool" arguments justifying cooperation in the return of slaves. She asked her husband in February, "Must we forever keep calm and smile and smile when every sentiment of manliness and humanity is kicked and rolled in the dust and lies trampled and bleeding?"⁽³⁶⁾ By then her family was already urging her to act. Her sister Catherine, herself an accomplished advocate for women's reform, encouraged her: "Now Hattie, if I could use a pen as you can, I would write something that would make this whole nation feel what an accursed thing slavery is."⁽³⁷⁾ Surrounded by agitation over the Fugitive Slave Act, heated to boiling by the cool, legal reasoning around her, Stowe set out to write several sketches "to hold up in the most lifelike manner possible Slavery."⁽³⁸⁾ Before she was done, the few sketches had grown to a novel of more than thirty chapters.

In constructing Uncle Tom's Cabin, Stowe used the materials around her, primarily fugitive slave narratives and abolitionist collections of testimonies about slavery. She later wrote that she slept with a copy of Theodore Weld's Slavery As It Is under her pillow until it crystallized into the story of Uncle Tom.⁽³⁹⁾ Stowe tells us in the Preface that she is trying to "awaken sympathy and feeling for the African race, as they exist among us; to show their wrongs and sorrows under a system so necessarily cruel and unjust as to defeat and do away the good efforts of all that can be attempted for them, by their best friends, under it." (v-vi)⁽⁴⁰⁾ All of Uncle Tom's Cabin, like abolitionist writings generally, can be viewed as an

indictment of slave law with the express purpose of undermining support for slaveholders' property rights. Many commentators on law in the antebellum period have focused on such antilegal implications of abolishing slavery.⁽⁴¹⁾ Like much abolitionist writing, especially that published after 1840, Stowe attacks the law explicitly as well as implicitly.⁽⁴²⁾ First, she portrays the harshness of the law itself, not just the practice of slavery, attributing the harshness of slavery to bad laws, rather than to bad people. Second, in a few places she advocates (or at least depicts as noble) the breaking of law in favor of some higher justice. One overarching theme of Uncle Tom's Cabin, as a supporter recognized, is that "in an institution based upon the principle of one man being the property-holder of another . . . there must naturally be gross wrongs, and if the local powers overlook them it becomes those who are enlisted in the good of a common cause to point them out."⁽⁴³⁾

A. Indictment of Slave Law

Stowe links slavery with law--and contrasts religion and law--from the beginning of the novel. In the Preface she predicts that "every influence of literature, of poetry, and of art" is bringing society into accord with Christian principles. Law, however, is not humanizing; it is part of the structure holding the slave system together. Nevertheless, Stowe denies any "invidious feelings" towards people involved with "the legal relations of slavery." (vi)

Stowe develops the links between law and slavery by several examples indicating that the law makes it impossible for even "kind" masters to make slavery humane and that the law releases the worst impulses of unkind masters. She uses law as a weathervane to gauge Southern society. In the Key to Uncle Tom's Cabin, which she published the year after the novel to provide factual underpinning for it, she wrote, "The only means of understanding precisely what a civil institution is, are an examination of the laws which regulate it." (Key 120) The Key leaves no doubt that it is law that causes harm. She likens law to "elegant surgical instruments for the work of dissecting a living human heart;--every instrument wrought with exactest temper and polish and adapted with exquisite care, and labor with the name of the nerve or artery . . . it is designed to sever." (Key, 155) The laws worked their evil by permitting the breakup of families, preventing kind treatment, and releasing masters from liability for harm to their slaves.

1. Law Fails to Protect Slaves

Stowe develops her critique of law in the first chapter of the novel by showing that even a kind slaveowner is unable to preserve a slave family. The novel begins in the household of Master Shelby, where the saintly slave Uncle Tom lives with his wife, Aunt Chloe, along with the slave Eliza and her, son Harry. Master Shelby, though "good natured and kindly," is forced because of his debts to sell Harry and Tom to the slavetrader Haley. (19) It is the legal enforceability of debt, as well as the legal system's treatment of slaves as property, that turns the dream of the "oft-fabled poetic legend of a patriarchal institution," into a Gothic nightmare:

[O]ver and above the scene there broods a portentous shadow,--the shadow of law. So long as the law considers all these human beings, with beating hearts and living affections, only as so many things belonging to a master,--so long as the failure, or misfortune, or imprudence, or death of the kindest owner may cause them any day to exchange a life of kind protection and indulgence for one of hopeless misery and toil,--so long it is impossible to make anything beautiful or desirable in the best-regulated administration of slavery. (19)⁽⁴⁴⁾

One of the first pictures Stowe presents for the reader is the interrelationship of law and slavery, and the ability of the legal juggernaut to wipe out any humanity in the institution.⁽⁴⁵⁾

George Harris, Eliza's husband who is owned by an unkind master, expresses concern about the inability of law to protect families when he explains why he is running away. "Kind families get into debt, and the laws of our country allow them to sell the child out of its mother's bosom to pay its master's debts." (128) Harris' own father, who was also his owner, "didn't think enough of [him] to keep [him] from being sold with his dogs and horses, to satisfy the estate, when he died." (126) Harris, his mother, and his six siblings were each sold to different masters. (126)

To further drive home the point of the power of estate sales (which settle the debts of an estate) to divide families, Stowe includes a chapter on a "select incident of lawful trade." In the incident, Haley attends an estate sale held by "order of the court," which takes place in "front of the Court-house door." (132) At the sale Haley gruffly rebuffs the plea of the mother of a boy he had purchased, to purchase her, too, "for de der Lord's sake!" (134) Notwithstanding the promise of her owner that he would let her keep her last child, debt forced the complete breakup of her family after the owner's death. (135)

The harshest lessons on the capricious impact of the law on the slave are yet to come. Stowe sets up her lessons in New Orleans, where Tom works for several years with his kind master, Augustine St. Clare, and where Tom develops a close relationship as guardian of St. Clare's abolitionist daughter, Eva. In recognition of Tom's loyal service and to fulfill Eva's deathbed request, St. Clare promises Tom his freedom and begins the "legal steps necessary to [effect his] emancipation." (299; 328)

Later that same day, St. Clare's abolitionist cousin Ophelia convinces him to transfer ownership of a young slave, Topsy, to her so that she can "take her to the free states and give her liberty." (332) Ophelia insists that he transfer ownership immediately, because he might "die or fail, and then Topsy [would] be hustled off to auction, spite of all I can do." (332) St. Clare draws a "deed of gift," signs it and (once again, thanks to Ophelia's watchfulness) has it witnessed, so that Topsy is Ophelia's property, at least, "by fiction of the law." (332)

St. Clare and Ophelia discuss the need to do "positive good." He resolves to free his slaves, in keeping with his belief that Christianity is inconsistent with "this monstrous system of injustice which lies at the foundation of our society." (337) Before he effects Tom's emancipation, however, St. Clare is mortally wounded at a cafe. (340-42) On the day that he promises Tom freedom and resolves to free his slaves and crusade against slavery--but before he accomplishes those tasks--St. Clare dies.

On this stage, Stowe can then play out the saga of the "Unprotected." The slaves, whom the law regards "in every respect, as devoid of rights as a bale of merchandise," had no protection. (342) Augustine's wife, Marie, contemptuously refuses to free Tom despite Ophelia's special plea that Marie complete the "legal process," which Augustine had begun. (348) Even if Marie had wanted to free him, which she certainly did not, financial constraints prohibited it: "Tom is one of the most valuable servants on the place--it couldn't be afforded anyway." (348)

As part of the liquidation of St. Clare's estate, Tom was brought to the slave market in New Orleans and sold to Simon Legree, a short, bullet-headed man. (359) One can imagine an allegorical fork in the road for the South, when Ophelia liberates Topsy, but the rest of Augustine's slaves are sold following his death. Legree represents the direction that Augustine's noble South is headed. Legree's once-noble plantation resembles the lush surroundings of Augustine's estate. The plantation's former owner "bestowed some considerable attention to the adornment of [its] grounds." But he "died insolvent," so the property came into Legree's hands in the way that all descent seemed to take place in the novel, through a sale to clear debts. Legree purchased it "at a bargain," and promptly stopped maintaining its manicured grounds, "us[ing] it . . . merely as an implement for money-making." (369) Thus, Stowe draws a line of steep descent from St. Clare to Legree. It was the same line that the South was traveling.

In case the religious implications of failing to work against unjust laws were lost on readers who failed to take action, Stowe explicitly cautioned them of the dangers in the Key To Uncle Tom's Cabin. The Key advises that in the final judgment:

Another Court will sit upon these trials, when the Son of Man shall come in his glory. It will be not alone Souther,⁽⁴⁶⁾ and such as he, that will be arraigned there; but all those in this nation, North and South, who have abetted the system, and made the laws which MADE Souther what he was. In that Court negro testimony will be received, if never before; and the judges, and the counsellors, and the chief men . . . will say to the mountains and the rocks, "Fall on us and hide us from the face of Him that sitteth on the throne, and from the wrath of the Lamb." (Key 107)

For Southerners, according to the Key, one primary avenue for action is changing the law. And those who did not act to alter the law are guilty, just like those who mistreat slaves. "Nor will . . . God hold them guiltless who, with the elective franchise in their hands, and the full power to speak, write, and discuss, suffer this monstrous system of legalized cruelty to go on from age to age." (Key 115)

2. Law Prevents Kind Treatment

Those who refuse to take action against slavery are guilty because the law prevents kindness towards slaves. Even when not forced, as Shelby was, to sell their slaves to pay debts, the law prevents owners from treating slaves kindly. Stowe explains in the Key, in a chapter entitled "Men better than their Laws," that "if left to itself, individual humanity would . . . practically abrogate the slave code." (Key 110) But to shut off the humanity, the slave code prohibits masters from teaching their slaves to read and write, limits the slaves' access to education, and prohibits them from acquiring property, raising their own animals, or hiring themselves out for their own benefit, as Chloe did when she went to Louisville to work in a confectionery to raise money to buy Tom's freedom. (277; Key 110-13)⁽⁴⁷⁾

Stringent slave laws also hinder emancipation and thereby often prevent owners from freeing their slaves. (Key 118) Stowe encourages observers of Southern slavery to redirect their attention (and scorn) from the individual actors, from the "person of the slave-holder" towards "the horrors of the legal system." (Key 115) Thus Stowe advocates changing laws as one of the few ways to mitigate the harshness of slavery: "In some Slave states it seems as if there was very little that the benevolent owner could do which should permanently benefit the slave, unless he should seek to alter the laws." (Id.)

Substantial reforms are needed. Stowe thought that the law's ability to foil even kind masters came partially from the cold, calculating mentality of the Anglo-American legal system. She elaborates in the Key:

Slavery, as defined by American law, is no more capable of being regulated in its administration by principles of humanity than the torture system of the Inquisition. 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 the law down, and to work out an accursed principle, with mathematical accuracy, to its most accursed results. (Key 82)⁽⁴⁸⁾

Logic, the domain of law, is a primary culprit in Stowe's view. In the Key she points to cases to show the "severe, unflinching accuracy of logic." The judges are not inhuman, but are rather so "logical and truthful that they announce from the bench, in the calmest manner, decisions which one would think might make the earth shudder and the sun turn pale." (Key 82) "It is believed that there is no code of law in the world which contains such a perfect cabinet crystallization of every tear and every drop of blood which can be wrung from humanity, so accurately, elegantly, and scientifically arranged as the slave-code of America." (Key 82). It appeared to Stowe in 1851 that if she could only make people feel right, if she could reach their sentiments, she could overcome slave law. In her 1856 novel Dred: A Tale of the Great Dismal Swamp she pessimistically acknowledges that law, religious institutions, and political parties, together conspire to overcome individuals' sentiments in favor of abolition.⁽⁴⁹⁾ But when writing Uncle Tom's Cabin, it appeared to Stowe that reform was possible.

Stowe recognizes the dilemma that judges face in choosing between following the law and following humane feelings:

Such decisions do not commend themselves to the professional admiration of legal gentlemen. But in the workings of the slave system, when the irresponsible power which it guarantees to be used by men of the most brutal nature, cases sometimes arise for trial where the consistent exposition of the law involves results so loathsome and frightful, that the judge prefers to be illogical rather than inhuman. Like a spring outgushing in the desert, some noble man now and then . . . throws out a legal decision, generously inconsistent with every principle of slave jurisprudence, and we bless God for it. (Key, 71-72)

Stowe has a strong reason for establishing that slavery could not be humane under any circumstances. She needs to contest the common belief, nurtured by proslavery novelists, that slavery is, or at least can be, a benign patriarchal institution. (19) The Southern characters in the novel believe that it was the veneer of respectability that preserved slavery. One gentleman planter acknowledges that "[i]f there were no characters save such as [Legree], the system would go down like a mill-stone." (365) For that reason, it is important to demonstrate that law prevents kind treatment by masters. For the slaves burdened with unkind masters, the laws offer little hope.

3. Law Releases Harm

The laws represented the ominous release of individuals from moral responsibility--the release of cruel human nature from any outside restraints. As Stowe explains in the Key:

[T]he law is a direct permission, letting loose upon the defenseless slave that class of men who exist in every community, who have no conscience, no honor, no shame; who are too far below public opinion to be restrained by that, and from whom accordingly this provision of the law takes away the only available restraint of their fiendish nature. (Key 86)

George Harris' master illustrates how the law releases an evil master from control. George's master became jealous of his accomplishments and decided to put George back in his place; he removes George from the factory where he was working successfully, assigns him to the worst work on the farm, and then tells George to take a new wife. (23; 28) When George's master refuses to sell him, the master uses the oddly juxtaposed ideas of freedom and slavery. "It's a free country--the man's mine and I may do with him what I please." (24) When Harris told Walker, his former employer at the factory, about his forced separation from his wife and the breakup of his family, Harris observes, "And all this your laws give him the power to do, in spite of God or man." (127)

After one of St. Clare's slaves, Prue, is killed by a harsh overseer, Ophelia asks St. Clare why he does not take action to punish Prue's killers. He responds, "It's commonly supposed that the property interest is a sufficient guard in these cases. If people choose to ruin their own possessions, I don't know what's to be done." (239) St. Clare links the law with his impotence to punish Prue's killers: "If low-minded, brutal people will act like themselves, what am I to do? They have absolute control; they are irresponsible despots. There would be no use in interfering; there is no law that amounts to anything practically, for such a case." (239) Near the conclusion of the conversation, St. Clare tells Ophelia that slavery is a system based on power. He elaborates on the almost limitless power that the law confers to masters over their slaves: "[W]e would scorn to use the full power, which our savage laws put into our hands. And he who goes furthest, and does the worst, only uses within limits the power that the law gives him." (242)

Simon Legree is the prime example of the release of masters from moral responsibility. Legree internalizes the calculus that an owner's property interest in a slave is the slave's only protection against abuse. He tells Tom, "I've made up my mind and counted the cost. I'll conquer you yet or kill ye." (440) Stowe asks the reader, "Ye say the interest of the master is a sufficient safeguard for the slave. In the fury of man's mad will, he will wittingly, and with open eye, sell his own soul to the devil to gain his ends; and will he be more careful of his neighbor's body?" (436) Here answer is evident because Legree proceeds to murder Tom, "done under the shadow of thy laws!" (440)

Even Legree's conscience wrestles with the question whether he should kill Tom when Tom expresses his complete devotion to work for and even to die for Legree, so long as Tom is not required to harm others. (440) But Legree's evil side wins and he kills Tom, as he planned when he asked himself the night before, "is n't he MINE? Can't I do what I like with him? Who's to hinder, I wonder?" (436)

Moreover, the law reduces even warmhearted Northerners to villains, because as Thoreau pointed out, the Fugitive Slave Law requires Northerners to return fugitive slaves to their owners and thus makes Northerners accomplices in slavery. Indeed, Stowe reports that it was after the enactment of the Fugitive Slave Act of 1850, when she "heard . . . Christian and humane people actually recommending the remanding of escaped fugitives into slavery as a duty binding on good citizens," that she decided to write Uncle Tom's Cabin. (470)

B. Advocacy of Violation of Slave Law: "Your heart is better than your head"

The direct advocacy of violation of existing law appears in stark form in chapter nine of the novel, "In which it appears that a senator is but a man." Runaway Eliza arrives at the house of Ohio State Senator Byrd, "(or perhaps we should say Mrs. Byrd, as this lady seems to rule the household as completely as any Woman's Rights Orator could desire),"⁽⁵⁰⁾ who has recently voted for a state statute outlawing the harboring of fugitive slaves. Just as Eliza appears at the door, the Senator and his wife are "twittering in an argumentative duet concerning the matter of lending 'aid and comfort' to runaway negroes."⁽⁵¹⁾ The Senator, who wants to "reason" with his wife, acknowledges that "it would be a very painful duty" to cooperate with the law. (93-94) Mrs. Byrd's first response is that "I hate reasoning John,--especially reasoning on such subjects. That's a way you political folks have of coming round and round such a plain right thing; and you don't believe in it yourselves, when it comes to practice." (94) Mrs. Byrd draws a line between duty, which bound lawyers and politicians,⁽⁵²⁾ and feelings of humanity. She then counters that even if aiding runaway slaves leads to great public evil, the Bible commands it, and that "it's always safest, all round, to do as He bids." (93) She vows to break the abominable law. (92) The dialog between Senator Byrd and his wife is a clash between cold law and heated, religiously inspired passion. The lesson is that when the Byrds directly meet the immorality of slavery, their moral passion inspires a just action.

The whole family ends up breaking the law. The Byrds harbor Eliza and her child and the senator personally drives them to the Quaker settlement. Mrs. Byrd had correctly predicted that Senator Byrd would behave as a "man" and not as a senator; as he was leaving to transport Eliza and Harry, she tells him, "Your heart is better than your head." (100) Stowe optimistically believed that when presented with a personal appeal for help, a person's humanity would emerge.

George Harris furnishes another example of affirmative breaking of the law. After relating the separation of his family and the brutalization of his sister "for wanting to live a decent Christian life," Harris declares "[T]here isn't one of all these things . . . but your laws allow, and give every man power to do." Therefore, he rejects the laws of the United States. He would respect only the laws of a country that protects him: "[W]hen I get to Canada, where the laws will own me and protect me, that shall be my country, and its laws I will obey." (127) That was consistent with Stowe's belief that did not need to obey the laws. (127; 215) Harris learned the lesson of the Fourth of July orations well. When he vows to fight to the death for his liberty, he says, "You say your fathers did it; if it was right for them, it is right for me!" (127)

Perhaps the greatest violence in rebellion against the law takes place while George, Eliza, Harry, and two other runaway slaves are on their way to Canada. The runaways ensconce themselves at the top of a rocky hill to fend off the slave catchers. Despite a plea from a magistrate to give themselves up because the slave catchers "have the law on our side, and the power, and so forth," they refuse. (215) George fires on Tom Lorker as Lorker is leading a charge of the slave catchers up a hill to recapture the runaways. (217) Lorker is wounded and the other slave catchers leave him. The Quakers, who are sheltering George and Eliza, nurse him back to health. Under their care, he reforms his ways and gives up slave catching. However, the scenes that most readers likely remember are the violent resistance to capture, and George's vow that he will never be captured alive. (127; 216-17)

Stowe's most memorable advocacy of disobedience to unjust authority occurs when Tom refuses to tell his owner Legree where the fugitive slaves Cassy and Emmeline are hiding. Here Stowe explores the boundary between resistance and obedience. Despite encouragement from the other slaves, Tom refuses to answer Legree's questions. (384) Tom does not yield, and he is murdered by Legree. Stowe explains the radical implications of Tom's actions in the Key. Legree is guilty of no crime when he killed Tom, according to "slave jurisprudence." "No Southern Court would dare to decide that Legree did wrong to continue the punishment as Tom continued the insubordination. Legree stood by him every moment . . . offering to let him go as soon as he. . . yield[ed]. Tom's resistance was insurrection." (Key 103-04)

The next step in Stowe's lesson--that Tom's insurrection might lead to the end of slavery--is clear to readers of the Key and presumably to readers of the novel as well. "If Tom had been allowed to disobey his master in this case, for conscience' sake. . . [t]he mulatto woman would have remembered that the command of God forbade her to take another husband. . . . There would be no end to the havoc made upon cotton-growing operations."⁽⁵³⁾ (Key 104)

III. The Proslavery Reaction

"In our author's eye, the slave-code is evidently a raw-head and bloody-bones--a monster of injustice--and she can hardly say enough against it."

Reverend Edward Josiah Stearns, Notes on Uncle Tom's Cabin.⁽⁵⁴⁾

Uncle Tom's Cabin "strikes at the very essence and existence of all community among men, it lays bare and roots up all the foundations of law, order, and government . . . . Pandemonium itself would be a paradise compared with what all society would become, if . . . action were accordingly regulated by it." George Frederick Holmes, Southern Literary Messenger (1852).⁽⁵⁵⁾

By looking to the responses to Uncle Tom's Cabin, we can see how Stowe's ideas were received, which should then help us understand further the power of her ideas. Stowe's contemporaries realized that she attacked law as well as slavery. Southern readers were acutely aware of her condemnation of slave law. They feared her attack on law could destroy their society and they reacted forcefully against her contribution to the debate over the law of slavery. The responders interpreted Stowe's lessons for their audience. In place of the jurisprudence of love that she sought, they urged order.

A. Head vs. Heart: The Response to Stowe

In contrast to Stowe's appeal to sentiment, proslavery writers frequently appealed to reason and practical arguments. The problems with the heart were identified by political theorist George Frederick Holmes when he wrote that "all the heresies and distempers of the day, religious, social, political, and intellectual have their roots in unsound philosophy and inadequate logic."⁽⁵⁶⁾ Responders to Stowe appealed to the head to overcome sympathy for slaves. For example, James Waddel asked whether "the feeling of humanity towards the sufferer himself, ought to have been obeyed, without regard to those great 'interests of the state' which Mrs. Stowe seems to think unworthy to be taken into account, when the question refers to fugitive slaves."⁽⁵⁷⁾ Waddel, like other proslavery writers, justified slavery based on its utility in insuring the greatest good for society, a calculus that required application of reason.⁽⁵⁸⁾ Where abolitionists believed that emotion might lead one to the correct path, proslavery writers believed that rigorous logic and application of practical morals were necessary.⁽⁵⁹⁾ In their opinion, it was logical, dispassionate thought that ensured the best results for society.

Abolitionists' appeal to feelings of humanity over respect for the Constitution served as a rallying point for proslavery writers. There, Nehemiah Adams, writing in the South-Side View of Slavery in 1854, cautioned against placing sympathy for the slave above respect for the Constitution. If that happened, the government would end. Adams censured abolitionist lawyers in particular:

Until we divide the Union, or procure a change in the Constitution, if we resist one of its provisions from repugnance to it, and so nullify it, we make a breach in a dam which has behind it a desolating river. That lawyers should do or counsel this, not from professional necessity, but moved by their sensibilities, fills even some clergymen with surprise. . . . a lawyer is supposed to discriminate between what is specially benevolent and the obligations which we owe to the social compact: from him we expect to learn that an unlawful way of seeking a supposed good is fraught with a destructive principle, before which every thing may be laid waste. That compassion for a fugitive slave which leads one to abrogate the constitution of society is not benevolent, nor does it secure respect for any but radicals--a class of men, in all ages of the world, who have uniformly failed to secure the confidence of mankind.⁽⁶⁰⁾

Adams, like other proslavery writers, urged adherence to a dispassionate, calculating evaluation of the merits of slavery, in place of abolitionists' sympathetic perspective. Stowe might believe that "feelings of humanity are to be universally obeyed, whenever they come into conflict with the exception of laws of which we disapprove,"⁽⁶¹⁾ but such feelings were inappropriate in the eyes of Southern responders to Uncle Tom's Cabin. In their rush to embrace the heart, abolitionists failed to understand the consequences of their doctrines, proslavery writers charged.⁽⁶²⁾

One of the greatest virtues of slavery in the minds of Southerners who responded to Uncle Tom's Cabin was its consistency with nature and its ability to preserve order in Southern society. "Why was it, that the abolition excitement in the North, produced such a panic in the South," asked A. Woodward in his book A Review of Uncle Tom's Cabin. "It was the revolting and shocking doctrines, which they openly promulgated. It was their notorious disregard of the laws of God and man, and all those ties which bind us together as one great nation; their denial of the right of the South to hold slave property, notwithstanding that right had been guaranteed to them by the Federal Constitution; their advocacy of the right of the slave to arise in the night and cut his master's throat; or, else, burn his house over his head."⁽⁶³⁾

Order, law, and government were particularly valued qualities in the antebellum South. South Carolina Senator John C. Calhoun warned in his Disquisition on Government against conferring too much liberty on individuals. "Liberty . . . though among the greatest of blessings, is not so great as that of protection; inasmuch as the end of the former is the progress and improvement of the race,--while that of the latter is its preservation and perpetuation."⁽⁶⁴⁾ Southerners applied their belief that stability was a paramount goal of society to the lives of slaves as well. In his book, Notes on Uncle Tom's Cabin, Stearns argued that the life of slaves in the United States was superior to life in Africa:

Hobbes in his Leviathan, (Pt. i ch. 18,) thus describes the condition of Europe in the Middle Ages:--"No arts, no letters, no society,--and which is worst of all, continual fear and danger of violent death, and the life of man solitary, poor, nasty, brutish and short." And it must be owned that there is too much truth in the description. Yet Europe in the Middle Ages was paradise compared with Western Africa in all ages that we have any knowledge of her, the present included, She is the darkest of those "dark places of the earth" which, the Psalmist tells us, "are full of the habitations of cruelty."

. . .

But if the slave trade were carried on without cruelty,---[t]he slave, thus brought under the control of a Christian master, would be as much better off than he was under his savage master in Africa, as the German or Irish peasant in this country is better off than he was in his native land.⁽⁶⁵⁾

Other Southerners expressed similar sentiments.⁽⁶⁶⁾

Because Southern thinkers valued law--as well as slavery--as a way of achieving order, they argued that Stowe's attack on the subordination of the slave to the master was misplaced. "This power that slavery gives to one man over another is met with everywhere in society. Caleb Williams! Alton Locke! Mary Barton! Parliamentary Blue Books! Mining Districts! Manufacturing Districts! Combinations of Workmen! Combinations of Masters!--to which shall we point especially?" asked one Southerner.⁽⁶⁷⁾ He argued that individuals might abolish distinctions, but the laws had not done so. Laws did not help labor against capital, nor did they "make the hard man lay down the power that he feels over his neighbor."⁽⁶⁸⁾ Some reformers sought to "unhinge these 'false relations'" but "Plato's model lives only in the brains of dreamers."⁽⁶⁹⁾

It was against this background of regard for order and control that George Frederick Holmes published his review of Uncle Tom's Cabin. Holmes recognized the impact that Stowe would likely have on the order that he and other Southerners so desperately sought. He believed that Stowe's main thesis was that "any social institution which can possibly . . . generate such examples of individual cruelty as are exhibited in this fiction, must be criminal in itself, a violation of all the laws of Nature and of God."⁽⁷⁰⁾ That proposition, Holmes thought, "strikes at the very essence and existence of all community among men, it lays bare and roots up all the foundations of law, order and government."⁽⁷¹⁾ The primary evil of Uncle Tom's Cabin, in Holmes' mind, was its attack on laws and, consequently, Southern institutions. Other reviewers expressed similar concerns. James Waddel's Review of Uncle Tom's Cabin described the entire novel as "a tirade against American law."⁽⁷²⁾

Even if the slave laws produced inequality, Holmes did not want them changed, for they provided security to society. "It is no distinctive feature of the servile condition that individual members of the class should suffer most poignantly in consequence of the crimes, the sins, the follies, or the thoughtlessness of others . . . . The same results, with concomitant infamy, are daily produced by the operation of all penal laws, and the same anguish and distress are thereby inflicted upon the helpless and innocent, yet such laws remain and must remain upon our statute books for the security and conservation of any social organization at all."⁽⁷³⁾ Louisa McCord, the important proslavery political theorist and wife of a wealthy South Carolina planter, exemplified the sentiments of many Southern commentators on Uncle Tom's Cabin when she predicted dire consequences from the changes in the law that Stowe advocated:

Make your laws 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. The natural order of things perverted, ill must follow. The magnitude of that ill, may heaven protect us from witnessing! . . . As the ocean to the wave--as the rill to the torrent--as the zephyr to the whirlwind--would any such scenes, if possible among us, be to those of Hayti, fearful as they were; and as ocean's gulf to rain puddle, would be the ensuing barbarism.⁽⁷⁴⁾

Stowe's responders agreed that slavery served the needs of Southern society by maintaining order.

B. Responses to Stowe's Criticisms of Slave Law

Besides expressing their fear that Stowe's ideas would destroy their society, Stowe's responders claimed that Southern slaves were no worse off than free workers, that Southern society should not be charged with responsibility for the evils of slave law, and that slavery (and the law) were not as bad as Stowe depicted.

1. Law Not Responsible for Hardships

In response to the abolitionist critique that "the great objection against slavery is that the power of one man over another is so irresponsible, so little restrained by law or nature,"⁽⁷⁵⁾ proslavery writers argued that hierarchy was inherent in nature. Such natural distinctions could not and should not be abolished. Edward Pringle, writing under the pseudonym A Carolinian, in the 1852 pamphlet Slavery in the Southern States, a widely circulated response to Stowe, argued that no legislation "provide[s] altogether against those abuses which grow out of the evil passions of men."⁽⁷⁶⁾ Human nature mitigated the harshness of slavery, Pringle thought. "Theirs is the hard letter of the law,--nothing that is not 'in the bond'! With us the moral code becomes positive law where legal rights end."⁽⁷⁷⁾ Such was a common response to Stowe. The laws, reviewers asserted, did not represent the way that slaves were actually treated.

Pringle also counseled against indicting slavery simply because of the occasional abuses depicted by Stowe. "[T]he laws of property are respected still, though the oppression of the rich has wrung from the poor the bitter cry that 'property is robbery.'"⁽⁷⁸⁾ In response to the related charge that "the power of one man over another is so irresponsible, so little restrained by law or nature," Pringle believed that dependence was inherent. Are not Northern workers more dependent than slaves, Pringle asked.⁽⁷⁹⁾ Slaves, he argued, had masters to protect them, but freemen, "weighted down by the inevitable ills that society is subject to, [have] no tyrant but the hard laws of demand and supply, stern and unchangeable."⁽⁸⁰⁾ Given the harsh results of Northern laws, Pringle hoped that his readers would recognize that the laws were not responsible for the hardships of slavery. Some laws, however, helped mitigate the harshness of slavery he believed.

2. Law Adequately Protects Slaves

Many Southern reviewers of Uncle Tom's Cabin responded to Stowe's challenge that it was slave law that accounted for the harsh treatment of slaves by arguing that law adequately protected slaves. Stowe's representation that Legree could murder Tom with impunity was probably the most frequently contested scene in the novel. In his review of the book, Holmes disputed Stowe's claim that Legree could not be convicted of Tom's murder. Holmes stated that Tom's death was "an outrage which every Southern man would reprobate with indignant scorn--and punish by the summary application of Lynch law, which may be sometimes profitably applied."⁽⁸¹⁾ Others also believed that Legree could be punished. In opposition to Stowe's charge in the Key that "in the free states Legree is chained and restrained by law; in the slave States, the law makes him an absolute irresponsible despot," (Key, 40)⁽⁸²⁾ Stearns wrote that Legree could be convicted of murder. Legree's statement to George Shelby that "I gaved him the crudest flogging I ever gave the nigger yet" might be used in court, Stearns argued, because it was said to a white person.⁽⁸³⁾

Stearns devoted fifteen pages to refuting the Key's contentions that the law inadequately protected slaves.⁽⁸⁴⁾ He criticized her interpretation of such famous cases as Souther v Commonwealth.⁽⁸⁵⁾ It was the jury, not the judge, Stearns argued, that voted for second degree murder. In response to Stowe's use of Judge Thomas Ruffin's decision in State v Mann⁽⁸⁶⁾ to show that a master may not be punished for disciplining a slave, Stearns quoted from the opinion: "[T]his dominion is essential to the value of the slaves as property, to the security of the master and the public tranquility, greatly dependent upon their subordination, and, in fine, as most effectually securing the general protection and comfort of the slaves themselves." He argued that the last phrase of Ruffin's statement showed Ruffin's concern with protection of slaves.⁽⁸⁷⁾ In defense of a North Carolina statute allowing magistrates to kill runaway slaves, Stearns suggested that it was preferable to "roo[t] out" the "pests" rather than allow them to continue to "pre[y] upon the community, increasing daily in numbers and sinking deeper and deeper into barbarism."⁽⁸⁸⁾ Stearns included another twelve pages in the Appendix, reminiscent of the Key, with extracts of statutes and decisions from slave states, to indicate that slaves were treated equitably by the courts and that masters' powers over slaves were limited. In case those references were insufficient, Stearns pointed to provisions for slavery in Mosaic law. He noted that those provisions were a "vindication of the slave code in a nutshell."⁽⁸⁹⁾ Thus, Southerners maintained that the law did not need reform, and a fortiori that slavery itself was proper.

3. Slaves Treated Well: The Sphere of Sentiment

Even when proslavery writers acknowledged the harshness of slave law in the face of Stowe's evidence, they argued that most masters treated slaves humanely and certainly better than the laws required. Stearns, for example, cited nineteen passages from Stowe attacking slave law for permitting inhumane treatment of slaves; he then responded that Stowe misunderstood the nature of law. Laws are not responsible for the evils they permit, he said; human nature itself is to blame for the mistreatment of slaves. "Verily, if laws are to be held responsible for the wrongs which they passively permit, the slave code will find plenty of other codes to keep it company, in the Northern states, to say nothing of European Christendom."⁽⁹⁰⁾ Thus, Stearns proposed that the relatively few cruel masters deserved censure, not the laws.

Louisa McCord advanced a similar attack on Stowe in the Southern Quarterly Review. The law of slavery encouraged a tutelage of slaves, she wrote. 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."⁽⁹¹⁾ The true test of a society for McCord was not its laws but the actual treatment of slaves. And slave society--with its gradations of hierarchy--provided for the proper elevation of the higher classes and the most comfortable life for the lower classes.

Edward Pringle's Slavery in the Southern States likewise acknowledged that the laws did not always protect slaves but that laws by themselves could not reform human manners. "A system of government which would raise a barrier against every evil disposition in man would be a clog about his feet. . . . But the necessary insufficiencies of legislation are the most fruitful occasions for the exercise of the virtues, which here play the part of the vis medicatrix of nature."⁽⁹²⁾ Thus, it was necessary to reform manners, which would in turn lead to different treatment of slaves. Pringle thought that the proslavery writers were doing precisely that. "While the slaveholder is bringing forward the above suggestions in defense of slavery, he will remember that he is going over the catalogue of his own duties." And once the duties were learned, the slaves would be treated well, no matter what the laws were. Pringle confidently predicted that "the good there is in human nature will supply the deficiencies of human legislation."⁽⁹³⁾ But proslavery writers could not escape the fact that slaves were treated poorly. Southerners might be able to lessen the magnitude of abolitionists' claims, but the fact remained that slaves were mistreated. It became imperative, then, to point out that the South held no monopoly on human misery and that suffering occurred under Northern as well as Southern law.

4. Law Permits Free Workers to be Treated Poorly

Hoping to defuse the abolitionist critique, proslavery writers argued that laws in the North allowed just as harsh treatment of workers as did slave law. "Are the laws of debtor and creditor---and the processes by which gain is squeezed from the life-blood of the indigent, more gentle . . . than the atrocious heart of that fiendish yankee, Simon Legree," asked George Frederick Holmes.⁽⁹⁴⁾

In defending slavery, the writers drew examples from around the world. Nehemiah Adams suggested that heart-rending stories could be told about workers in the English coal mines, about brides in India who were murdered for their dowry, and about Irish peasants.⁽⁹⁵⁾ Edward Pringle looked closer to home, to the impoverished inhabitants of the Northern cities and to the institution of marriage. He utilized comparative data on the health of Northern workers and of slaves to suggest that the former were actually more oppressed than the latter. "If we were to draw a picture of the miserable condition to which men and women are reduced in the great cities and manufacturing districts by the fierce competition . . . and if, ascribing this to the liberal legislation that allows [the employer] to demand so much work for so little pay," he observed, "our argument would not be more faulty than Mrs. Stowe's."⁽⁹⁶⁾ Pringle informed his Northern readers that they might "make laws to govern this and guard against its abuse," but reminded them that they had not done so.⁽⁹⁷⁾

5. Proslavery Novels: The Fictional Responses to Uncle Tom's Cabin

The proslavery novels written in response to Uncle Tom's Cabin also confronted Stowe's challenge to Southern law.⁽⁹⁸⁾ For example, Mary Eastman's Aunt Phillis' Cabin, described a reminiscence of Mr. Chappman, a Southern plantation owner, to show that Northern laws did not protect free workers. Chappman recounted a recent trip to upstate New York, where he saw a railroad under construction. The foreman of the construction crew struck one of the Irish workers. Chappman asked the foreman why the laws did not protect the workers from physical attack. "Laws! why railroads have to be made, and have to be made the right way. I ain't afraid of the laws. I think no more of knocking an Irishman over, sir, than I do of eating my dinner."⁽⁹⁹⁾ Chappman's vignette was intended to demonstrate that even if the laws were changed in the South to require better treatment of slaves, they would have little effect, and that free, but poor, white workers were treated no better than slaves.

In another scene Aunt Phillis, a slave herself, sheltered a runaway slave. The scene was reminiscent of the sheltering of Eliza by Senator Byrd's family, but this time the slave was a drunken fieldhand instead of an appealing mother. Mr. Weston, Phillis' owner, solemnly observed, "I am responsible for what my servants do. . . . The laws of Virginia require the rights of the master to be respected."⁽¹⁰⁰⁾ The readers learned that although one may have humane feelings, one must obey the law.

Lest her readers forget that slavery was protected by the Constitution, Eastman included an illustrative debate between an abolitionist and a Southerner.⁽¹⁰¹⁾ The Southerner responds to the abolitionist's claim that there was no right to hold slaves with an analogy to Native Americans' claims to land. He points out that New Englanders had taken Native American lands unjustly, then posits that "we 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. John Q. Adams, speaking of the protection extended to the peculiar interests of the South, makes these remarks: 'Protected by the advantage of representations on this floor, protected by the stipulation in the constitution for the recovery of fugitive slaves, protected by guarantee in the constitution of the owners of this species of property against domestic violence.'"⁽¹⁰²⁾

Other writers responded with alternative pictures of the law. In proslavery fiction, law did not usually lead to separation of slaves from their kind masters. Debt was the central problem for William Gilmore Simms' Captain Porgy in the 1854 novel Woodcraft.⁽¹⁰³⁾ Porgy returns from fighting in the American Revolution to find his plantation mortgaged to British sympathizers. Throughout the novel he struggles to extricate himself from debt, even refusing to sell his beloved slave Tom--thus providing a contrast to the sale of Uncle Tom in Stowe's novel and showing that an alternative exists in the face of debt. Woodcraft is Simms' response to Stowe--one novelist's response to another's criticism of the slave code--depicting masters as kind, no matter what the laws allow.

- - -

Proslavery writers recognized that Stowe attacked law as well as slavery. In his book Review of Uncle Tom's Cabin, A. Woodward cataloged the reasons he opposed abolitionists. The reasons were frequently related to law: "I am opposed to the abolitionists, because they trample under foot the Constitution and laws of their country. . . . I am opposed to them, because they have decoyed away slaves from their masters, and have at the same time encouraged slaves to steal from their masters and others. . . . I am opposed to them, because they reject the Bible and profess to be under the guidance of a higher law."⁽¹⁰⁴⁾ Woodward's catalog encapsulates the reasons why Stowe's sentimental attack on law was perceived by Southerners as dangerous to their society. In the years leading up to Civil War, Southerners began to realize how effective Stowe's appeal to the sentiments of her readers could be.

IV. The Interplay of Religious Beliefs, Sentimentality, and Law

Stowe's critique of slave law and the proslavery responses add to our understanding of the process of law reform in antebellum America. Stowe's work helped to mobilize antislavery thought; it made abolition of slavery more conceivable and popular and so contributed to large-scale changes in American law. At the same time, the proslavery responses reveal the ways that the legal mentality responded to abolitionist criticism and thus how the head responded to appeals of the heart. The logical head predominated in the judiciary and may have been important in developing the formal style of judicial reasoning.

A. Stowe and the Reform of Law in Antebellum America

Abolitionists sharing Stowe's emotional fervor represented only a small percentage of the Northern electorate in 1860.⁽¹⁰⁵⁾ Abraham Lincoln's quaint (and possibly apocryphal) statement made upon greeting Stowe at the White House in 1863, "so this is the little lady who made this big war," conveys the impression that moral outrage over slavery was stronger than the historical record suggests.⁽¹⁰⁶⁾ Nevertheless, Stowe's critique, which reached hundreds of thousands directly in print and many thousands of others in dramatized versions, had the ability to transform the audience with her emotional appeal.⁽¹⁰⁷⁾ The magical powers of the heart promised to challenge the cold, logical head. With chapters like "In which it appears that a Senator is but a man," "The Mother's struggle," and "In which the reader is introduced to a Man of Humanity," Stowe emphasized for her readers the clash between logical legal thought and humanity. The novel had the potential to melt the cold, duty-bound response of politicians to slavery. If Senator Byrd, when individually confronted with the inhumanity of the law, was able to act humanely, then so might others.⁽¹⁰⁸⁾ The emotional appeal, like many appeals of reformers of the antebellum period, proved too radical to be adopted wholesale.⁽¹⁰⁹⁾ But the ideas, once planted, continued to grow tenaciously.

Stowe communicated with her readers directly in her final chapter, "Concluding Remarks." She told them that she had avoided discussion of slavery before Uncle Tom's Cabin because it was "too painful to be inquired into." (470) But she heard "Christian and humane people actually recommending the remanding escaped fugitives into slavery, as a duty binding on good citizens," in discussing the Fugitive Slave Act of 1850. Her "Concluding Remarks" explain the process by which Stowe thought reform might occur. She believed that if readers knew what slavery was, then "such a question could never be open for discussion." (470) She urged her readers to take three actions. First, they should "see to it that they feel right." (470) Adherence to principles of Christianity was fundamental. "An atmosphere of sympathetic influence encircles every human being; and the man or woman who feels strongly, healthily, and justly on the great interests of humanity, is a constant benefactor to the human race." Second, she told them, "[Y]ou can pray!" (471) Finally, she urged the readers to give slaves "education, knowledge, Christianity." (471) It was a revival she was seeking, and she harnessed the techniques of revivalist ministers. The consequences of failure to redeem oneself--and the American nation--were dire. "Every nation that carries within its bosom great and unredressed injustice has in it the elements of this last convulsion." (476)

Stowe's contemporaries realized the powerful effect literature could exercise on Americans' thinking.⁽¹¹⁰⁾ Her sister Catherine Beecher introduced Stowe's 1844 book, The Mayflower, by discussing the power of novels. "Works of imagination might be made the most powerful of all human agencies in promoting virtue and religion."⁽¹¹¹⁾ Likewise, in a critical review of United States Supreme Court Justice Joseph Story's Commentaries on the Constitution, Nathan Beverly Tucker, a professor of law at William and Mary and an influential proslavery writer, recognized that "in this reading age, . . . it is as true at this day, as that adage ever was, that 'he who writes a people's books, need not care who makes their laws.'"⁽¹¹²⁾ Uncle Tom's Cabin was seen by Stowe's contemporaries as an agent of change. A Southern reviewer of Uncle Tom's Cabin understood the effect the novel had on readers. "It has gone into thousands of families, and is silently exciting . . . a feeling of prejudice and distrust."⁽¹¹³⁾ William Gilmore Simms wanted his readers to bear "in mind that this slanderous work has found its way to every section of our country . . . filling the minds of all who know nothing of slavery with hatred for that institution and those who oppose it."⁽¹¹⁴⁾

A sense of the impact of Uncle Tom's Cabin--the passions it expressed and those it generated--may be gauged from United States Senator Charles Sumner's speech Freedom National, Slavery Sectional, urging repeal of the Fugitive Slave Act. Sumner first argued that the nation's framers intended slavery to be narrowly limited; he then urged that "all legislation hostile to the fundamental law of the land should be repealed."⁽¹¹⁵⁾ He questioned whether the law had essential support in the "public conscience of the States," for such support "is the life of all law, and without which any law must become a dead letter."⁽¹¹⁶⁾ Sumner appealed to the sentiments of his audience. "The great heart of the people recoils from this enactment. It palpitates for the fugitive, and rejoices in his escape. . . . The literature of the age is all on our side. The songs, more potent than laws, are for him. The poet, with voices of melody, are for freedom. . . . They who make the permanent opinion of the country, who mould our youth, whose words, dropped into the soul, are the germs of character, supplicate for the slave."⁽¹¹⁷⁾ Sumner had a particular heroine in mind here:

And now, sir, behold a new and heavenly ally. A woman, inspired by Christian genius, enters the lists, like another Joan of Arc, and with marvelous powers sweeps the chords of the popular heart. Now melting to tears, and now inspiring to rage, her work everywhere touches the conscience, and makes the slave-hunter more hateful. In a brief period, nearly one hundred thousand copies of Uncle Tom's Cabin have been already circulated. But this extraordinary and sudden success--surpassing all other instances in the records of literature--cannot be regarded merely as the triumph of genius. Higher far than this, it is the testimony of the people, by an unprecedented act, against the fugitive slave bill.⁽¹¹⁸⁾

One sees in such pleas the impact that emotional appeal could have in stripping slave law of its legitimacy.

The emotions expressed and generated by Uncle Tom's Cabin became part of the matrix of antebellum thought. Single-causation theories are rightly suspect in modern social science and one is unlikely to ever determine with precision the contribution of any single event to a result.⁽¹¹⁹⁾ However, Stowe may rightly be credited with lending legitimacy and power to the movement to remove legal protection for slavery. Stowe's contemporaries, both North and South, discussed the uncertain relationship between cultural ideas and statutory law, the crossroads of law and humanity. In debate over revision of the Fugitive Slave Act of 1850, senators recognized that "all laws depend for their execution and efficiency, in no small degree, upon the opinion of the community that they are just and reasonable laws."⁽¹²⁰⁾ Stowe affected Americans' thinking on the relative weight to give to law and to humanity. The public sentiment and the cultural ideas necessary for observance and effective enforcement of the law--necessary to maintain the majesty of the law--were transformed by abolitionist attacks in the 1850s.⁽¹²¹⁾ The matrix of acceptable responses to the Fugitive Slave Law was changed by Uncle Tom's Cabin, just as other works of fiction challenged their readers to rethink the domains of law and humanity.⁽¹²²⁾

B. Proslavery Thought and Judicial Formalism

One of the most perplexing issues in American legal history concerns the reasons for the rise of judicial formalism, beginning in the 1850s. Scholars ranging from Roscoe Pound to Duncan Kennedy, from the legal realists to proponents of critical legal studies and economic analysis of the law, have sought to understand the factors that accounted for its rise and the purposes that it served.⁽¹²³⁾ Professors William Nelson and Robert Cover explain the rise of formalism as a reaction against proslavery legal thought.⁽¹²⁴⁾ Professor Nelson seeks to explain the shift from "a style in which judge[s] explicitly asked themselves whether a proposed rule would promote economic growth to a style in which judges asked whether a proposed rule was consistent with an existing body of doctrine."⁽¹²⁵⁾ He views formalism both as a reaction against instrumentalism, which he believes was largely the domain of proslavery jurists, and as an extension of a belief made popular by antislavery lawyers that one should reason from "first principles on which all . . . can agree."⁽¹²⁶⁾ According to Professor Nelson, formalism emerged when lawyers trained in antislavery modes of thought began to occupy the federal and state benches. Those antislavery jurists rejected the instrumentalist reasoning employed by proslavery jurists in favor of formalism that proceeded mechanically from their agreed-upon principles.⁽¹²⁷⁾

Like Nelson, Robert Cover attributes the rise of formalism to antislavery thought. But Cover does not believe that antislavery thought was inherently formalist. In Cover's view, formalism arose when antislavery judges retreated to a formal argument as a way of escaping the moral problems of proslavery law. They used what Cover calls the "judicial can't" to explain to themselves and their audience that the law constrained their options.⁽¹²⁸⁾ Antebellum legal writers often urged jurists to follow the law rather than their own conscience.⁽¹²⁹⁾ Antislavery jurists drew upon their heritage to limit their own feelings of culpability for issuing proslavery decisions.⁽¹³⁰⁾ From their culture, some antislavery jurists learned and internalized a respect for law that then led to formalism, according to Cover. While both Cover and Nelson arrive at formalism, they travel along different paths to that destination. Nelson believes that antislavery jurisprudence was formalist from the outset; Cover believes that antislavery jurisprudence employed formalism only to avoid moral culpability, not as a way to achieve an antislavery result. Cover carefully limits his thesis to the slavery context, but he suggests that his hypothesis may apply in other contexts.⁽¹³¹⁾

Stowe's writings suggest, however, that proslavery jurists may have retreated to formalism more frequently than did antislavery legal thinkers. She believed that "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." (Key 82) Some judges, if their moral passion were stirred appropriately, might escape from that formalism imposed by logical, legal reasoning.⁽¹³²⁾ But judges rarely left that mode, which Stowe had identified as the dominant characteristic of American law: "The decisions in American law books show nothing so much as . . . severe, unflinching accuracy of logic." (Key 82) Indeed, the moral outrage shown by abolitionists towards "cool legal inhumanity" (Key 72)--what one might now call formalism--calls into question the antislavery roots of formalism.⁽¹³³⁾

Proslavery jurists may have referred to law as a way of channeling the debate over slavery. They might recognize, as North Carolina Supreme Court Justice Ruffin did in 1829, the "struggle . . . in the Judge's own breast between the feelings of the man and the duty of the magistrate."⁽¹³⁴⁾ To avoid those problems, they denied their power to change the law. They spoke of the imperative duty that the law imposed upon them to reach a particular result and after doing so for a time, it became impossible for them to adopt any other mode of reasoning.⁽¹³⁵⁾ Judges construed their role in deciding cases narrowly when they dealt with areas outside of slavery as well. For example, Ruffin's opinions in other areas show a concern for limiting the judicial role--for casting judges as oracles, not creators of the law.⁽¹³⁶⁾ The dominant moral philosophy in the South, moreover, emphasized dispassionate reasoning from premises.⁽¹³⁷⁾ The jurisprudence of love that Stowe sought, which promised to protect slaves from inhumane laws and abusive masters, had as its opposite the rigidly logical approach of Southern judges. It may very well be that far from inspiring formalism, abolitionist thought opposed it. The proslavery forces--far more numerous in the ranks of the antebellum judiciary than were antislavery legal thinkers--may have been the motivating force behind the development of formalism.⁽¹³⁸⁾ Where some antislavery jurists retreated to formalism, more jurists who relied on a logic-based formalism were proslavery. Such jurists and other proslavery writers, including the academics George Frederick Holmes, Albert Bledsoe, and Edward Stearns, the literary critics William Gilmore Simms, Louisa McCord, James Pringle, and James A. Waddel, and novelist Lydia Eastman, illustrate the force pushing respect for law over a sentimental jurisprudence based on "feeling[s] of humanity." (Key 71)

Conclusion

Uncle Tom's Cabin was part of a religiously inspired movement for law reform in antebellum America. A strong theme of Uncle Tom's Cabin is the necessity of active reform of law, because slave law prevents kind masters from treating their slaves humanely and fails to restrain abusive masters. The novel addresses a fundamental struggle in the American intellect between the impassioned, religiously inspired ideas of the heart and the cold, logical response of the head--in other terms, the debate between evangelical religion and conservative legal thought.

The images and arguments developed in abolitionist literature reflected ideas in circulation and helped to shape the grounds on which the debate took place. Uncle Tom's Cabin contributed to the question whether the head or the heart--proslavery law or antislavery evangelical religion--would dominate Americans' response to slavery. While the novel did not effect immediate change, it influenced the terms of the debate both drawing upon existing antislavery sentiments and by rechanneling existing emotions. Stowe sought to undermine proslavery law by awakening the sympathies of her readers. She hoped that when they understood the nature of slavery and slave law, they would act against it. She attacked law as an institution that kept blacks in slavery, forced kind owners to sell their slaves to pay debts, and released the inhumane passions of unkind masters.

The reviews, pamphlets, and novels responding to Uncle Tom's Cabin testify to the fervor that Stowe tapped. Southerners and proslavery writers recognized the power of Stowe's emotional appeal and attempted to rebut it in two ways. First, they established a defense of slavery based on reason and practicality rather than "feelings of humanity."⁽¹³⁹⁾ The respondents called for order instead of abolition based on sentiments for slaves. They also countered that slavery was not as harsh as Stowe portrayed it.

At the end of the novel Stowe addresses her readers in religious and sentimental terms. She encourages them to "feel right" and "pray." (472-73) Those actions, she tells them, will start the process of making the world right. Her final comment, however, is 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!" (477) Stowe failed to heat antebellum Southerners to the boiling point needed to end slavery peacefully; the legal mind triumphed in the antebellum South.

Uncle Tom's Cabin did not create all the fervor that Stowe tried to channel against slavery. A significant part of its power was generated, as Stowe realized, from awakening emotions that already existed. (470)⁽¹⁴⁰⁾ One lecturer told his audience at the University of Georgia that a literary work took on the ethos of the culture in which it was written. "Literature receives the force and current of the people through which it passes. The philosopher's eye can readily detect the key, cause, and secret of each, and expose the seminal principle from which they grew into their particular shape and fashion."⁽¹⁴¹⁾ Given the popularity of Uncle Tom's Cabin and the response it generated, we should seek the "key[s], cause[s], and secret[s]" that are hidden within it, to understand what it communicates about law in the American mind as the Civil War approached.

Abstract

In this article, Alfred L. Brophy re-examines Harriet Beecher Stowe's 1852 novel, Uncle Tom's Cabin, in an attempt to recover--and bring back into focus--important aspects of the novel that have been lost since the Civil War and to suggest some of the implications for understanding of law reform in antebellum America that can be drawn from that recovered meaning. Through a careful reconstruction of Stowe's world, he shows that Stowe focused her attack on the laws surrounding slavery, as well as the institution of slavery itself. Brophy shows that Stowe attacked the law of slavery in several ways. First, she showed that the law forced the separation of families by enforcing debts and through estate sales; then Stowe showed that the law prevented even kind masters from freeing slaves or educating them. Even more insidious, however, were laws that released even the worst masters from liability for injury to their slaves. Finally, she glorified slaves who ran away as well as those who helped slaves escape.

Stowe's novel, which was written in response to the Fugitive Slave Law of 1850, was recognized by her contemporaries as an attack not just upon slavery, but upon law itself. Southern reviewers, fearing the immediate emotional appeal of the novel, which may have reached a million readers in the first year of its publication, tried to respond to Stowe's critique of slavery in many ways, including warning about the effects of the novel on respect for law.

By critiquing the "cool legal inhumanity" of judicial decisions involving slaves who were abused by masters and by urging Northerners to shelter fugitive slaves, Stowe contributed to the movement to disregard the law and oppose formalism in judicial decisions. This essay reconstructs much of that now-forgotten world of the antebellum era and argues that Stowe should be seen not just as an important sentimental novelist, but as one who contributed in important ways to the critique of American society that made Lincoln's appeal for a limitation on slavery resonate with the northern electorate.

Need:

page number for Lawrence citing Stroud

page number for Waddel

C. Southern Responses and the Proslavery Legal Argument

The character of proslavery writers, the motivations for their writing, and their goals have drawn substantial attention for scholars in the last twenty-five years. Professors David Donald and Drew Faust, examining the writings of proslavery writers in general, have argued that their arguments were concerned with "sacred, communitarian, or traditional" arguments deriving from a fear of "growing materialism and declining morality."⁽¹⁴²⁾ Some legal scholars have questioned whether those writing about the legal aspects of proslavery thought shared such values. Some, such as Professor John Reid, have suggested that proslavery lawyers were not "nostalgic, remembering a South they had lost and wished to regain."⁽¹⁴³⁾

At least within the realm of response to Uncle Tom's Cabin and the abolitionist critique of slave law, the proslavery writers were concerned with preserving a hierarchical society, with its laws that permitted--indeed encouraged--vast disparities of wealth and power. They thus do not seem to fit the model advanced by Faust and Donald of Southerners looking for a return to a communal past. Those concerned with the legal aspects of the proslavery response to Uncle Tom's Cabin explicitly viewed the law as a way of preserving inequalities that were just, or as part of an inherently unequal society. The idea of moral stewardship plays an important role in Faust's story of proslavery thought. It is certainly true that, according to proslavery writers, slavery was "merely a benevolent institution of . . . principles of inequality."⁽¹⁴⁴⁾ It was also, however, a way of supporting Southern society--not just benevolent to the slaves subject to their masters' control, but also a support of all of society. It is slavery as a bulwark of Southern society that proslavery writers--in particular those with legal training--focused upon.

It is easy to see in some of the most prominent, if least followed, proslavery writers, a concern with their declining status in society. George Fitzhugh, "paternalistic defender of slavery, writer, and--failure" is one who bemoaned the nineteenth century's emphasis on "Mammonism."⁽¹⁴⁵⁾ But even Fitzhugh's argument in favor of slavery relied upon the importance of slavery to Southern society. Every historian emphasizes different elements of proslavery thought. John McCardell sees a transition from a Biblical-based defense in the 1830s to one based on ethnography by the 1840s.⁽¹⁴⁶⁾ George Fredrickson suggested in his book The Black Image in the White Mind that there were regional differences; the lower South emphasizing the advantages of slavery to facilitate democracy, while proslavery writers from the Southern Atlantic states emphasized hierarchy.⁽¹⁴⁷⁾ Drew Faust sees anxiety over the proslavery writers' declining status in Southern society.⁽¹⁴⁸⁾ But one is left wondering, what about the Southern responses to abolitionist attacks on law--what can be determined from their thoughts? I suggest that the great distinguishing characteristic in the judicial opinions are issues of jurisprudence and philosophy. The question for those writers became, to what extent is slavery the foundation of Southern society? When they answered in legal terms, they prepared themselves for secession.

Two of the most frequently cited American proslavery political philosophers came from Virginia. William and Mary Professor Thomas Roderick Dew wrote the widely circulated Debates on the Virginia opposing a gradual abolition scheme proposed in the Virginia Constitutional Convention in 1831. Although Dew, also the author of a comprehensive treatise on legal history,⁽¹⁴⁹⁾ died before Uncle Tom's Cabin was published, his Debates were used as a way of responding to the abolitionist argument. He argued that emancipation would check the improvement of the slaves, which slavery made possible. But his greatest fear came from the "plots, murders, and insurrections," that he believed inevitably flowed from emancipation.⁽¹⁵⁰⁾ Albert Bledsoe, a professor at the University of Virginia, argued in his exhaustive essay Liberty and Slavery published in 1856 that liberty is derived from civil society restraining tyranny and oppression and thereby guaranteeing security to individuals. A well-regulated and ordered society was indispensable to true liberty. "He who would spurn the restraints of law . . . we say, is not the friend of human liberty."⁽¹⁵¹⁾

Another objection is that it brought into vogue a style of reasoning that, if believed in, would overthrow all human governments. Henry Ward Beecher at 193.

Harriet Beecher Stowe, daughter of prominent minister Lyman Beecher, sister of prominent reformer Catherine Beecher and prominent minister Henry Ward Beecher, placed herself at the center of fervor over slavery with the publication of Uncle Tom's Cabin. Published weekly in serial form in the antislavery paper National Era, from June 1851 through April 1852, the novel was part of the evangelical protestant critique of slavery, and of human society in general. She was one of a growing number of abolitionists whose religion taught them that slavery violated God's command and that any human-made laws inconsistent with God's command should be disregarded. In the 1830s and 1840s, abolitionists articulated a comprehensive religious indictment of slavery. The conflict between Stowe's human feelings towards slaves and the cold, logical approach of the slave law was representative of the struggle for control of the American mind that

Is this text or footnotes?

Who is speaking here?

Can we see the effect Southern law had on Uncle Tom's Cabin?

What effect did Uncle Tom's Cabin have on Southerners?

Did Uncle Tom's Cabin lead to entrenchment of slavery in the South?

Did entrenchment make Civil War more likely?

Did Stowe's outsider dialogue make radical reform possible?

Southern reviewers placed their own interpretation on Stowe's lesson.⁽¹⁵²⁾ The implications for Southern readers were disturbing because they lent credence to the Southern belief that Northerners did not fully support slavery. If the Senator, who publicly supported the return of fugitives, could so quickly come around to aid them, to what extent could any Northerners be counted on for support? Key 104: sentimental impulse

He devoted fifteen pages to showing that the slave code was not as harsh as Stowe portrayed it and that it actually protected slaves sometimes. For example, Stearns suggested that the master owed physical and moral necessities to the slave and that the master could not, at least in some states, kill a slave without cause; that some slave states recognized the marriages of slaves; and that at least Louisiana did not permit the sale of slave children under age 10 away from their mothers.

The extraordinary energy of the book became part of the power driving the abolition of slavery; through Uncle Tom's Cabin the previously unimaginable became commonplace

Stowe left readers believing that law killed humanity--took away the sentiments that would protect slaves. Letter kills; spirit. She made that point explicitly in Dred with Mr. Jekyl, a proslavery lawyer, had been trained to think that the greatest good for so long that he could no longer see the humanity.

Southern reviewers criticized Stowe's claim that a master has the absolute right to control the slave. A review attributed to William Gilmore Simms, for example, rebutted her picture with citations to the Louisiana Civil Code and Code Noir, which criminalized murder of slaves, and cases from Tennessee and Virginia, in which masters were prosecuted for murder.⁽¹⁵³⁾ Stowe responded to those examples in the Key by showing that the laws actually offered little protection for slaves. (Key, part II, chaps. 7-8)

Proslavery authors often cited the works of their contemporary political and social theorists. One author, for example, quoted Thomas Carlyle to establish that freedom is greatest in a well-regulated society: "The freeman is he who is loyal to the laws of this Universe. . . . The first symptom of such a man is, not that he resists and rebels, but that he obeys." A Carolinian [Edward Pringle], Slavery in the Southern States 30 (J. Bartlett, Cambridge, 1852).

The slave narratives symbolized an entire world--some of it created in response to slave owners, some of it the result of other experiences of the slaves. A host of extraordinary secondary works have explored the origins of narratives, as well as their effects on antebellum culture. Scholars have shown that the narratives melded "ideogical, social, psychological and literary conditions" in constructing a self for the writers and in drawing forth a response from the audience. One response drawn forth, which has been neglected, is the attack on law. Jennifer Fleischner, Mastering Slavery: Memory, Family, and Identity in Women's Slave Narratives 3 (New York Univ, 1996). As we recover a better understanding of the role that women played in the political culture of the antebellum era, law should occupy an important place. Not only abolitionist, but proslavery women writers as well participated. Abolitionist Sisterhood.

Second--and perhaps most importantly for the purposes of gauging Stowe's effect on legal change--Southerners who debated secession in the winter of 1860, following Lincoln's victory in the November 1860 election, cast their debate in legal terms. They pointed out in detailed speeches each of the perceived offenses against the Constitution perpetrated by abolitionists. Southern readers of Stowe understood that she was part of the attack on their law, their government, their society. In their reviews of Uncle Tom's Cabin, they warned about the book's harmful consequences to the Union. [Holmes cite] Thomas R.R. Cobb, the author of the comprehensive 1858 book Law of Slavery and a pro-secession delegate in the November 1860 meeting of the Georgia Legislature, warned his audience just days after Lincoln's election that "our lives and liberties are in jeopardy unless great exertions for our safety are made." He reminded them why: "Look at [abolitionism's] leaders, and see the heroes who deify John Brown; the mad preachers, like Cheever and Beecher; . . . the Sewards, and Sumners, and Hales, and Fred Douglas. . . . Scan closely all its long list of speakers or voters as far as we can see them . . . these are our rulers."⁽¹⁵⁴⁾ It is possible that his audience recalled Stowe to mind. In that way, Stowe, although she may have been less successful than she would have liked in encouraging justice-inducing piety in her Northern readers, induced the opposite reaction in her Southern readers, and in the process may have paradoxically contributed to the Civil War.

to support antislavery jurists who explained their proslavery decisions and literary scholars are often unconcerned with a text's influence in its contemporaries Just as fearful in the minds of Stowe's responders, the novel represented the emotions already present in the antebellum North.

Reinhold Neibhur and Alan Heimert have styled the struggle as for the soul of the nation, among the forces of evangelical impulse, democracy and commercial interests. Reinhold Neihbur & Alan Heimert, To Make a Nation (Harper & Collins, 1963).

cf. Robert Ferguson, Law and Letters in American Culture (Harvard U Press, 1986) (demonstrating ways that legal arguments pervaded literature from 1800 to 1850s and the disintegration of the "configuration" around the time of Civil War).

Other, more numerous, studies literary identify works that represent the American mind, Alan Heimert, Am Q (195_), resonated with it, and may have influenced it. See, e.g., Miller, Literature of Early Virginia; Moss, Domestic Novelists of the Old South (cited in note 98); Ferguson, Law and Letters in American Culture (cited in note ?) (portraying ways that lawyers' fictional writings reflected dominant legal ideas); Henry Nash Smith, Virgin Land (Harvard, 1956) (detailing how images of the west created Americans' understanding of that region). Analysis of the influence of literature poses many of the same problems of gauging the influence that legal decisions have on public sentiments.

Even William Gilmore Simms, in responding to Uncle Tom's Cabin, seemed to realize that if slavery were as bad as Stowe portrayed it on Legree's plantation, it should be abolished.⁽¹⁵⁵⁾ Proslavery writers did not always acknowledge the connection to religion.

Justice to ourselves would seem to demand that it should not be suffered to circulate longer without the brand of falsehood upon it.--Simms at 638. William Gilmore Simms wrote that a reader "who will reflect upon the matter a single moment must see the Senator is applauded for what in old times was considered one of the worst of all offenses--the violation of his oath." Simms, Review of Uncle Tom's Cabin at ___ (cited in note 50).

An article, The Doctrine of the "Higher Law," believed that "The abolition movements of these days are members of that great family of pretended reforms, which, divorced from the authority of religion, are plunging forward under the reckless guidance of a philosophical turn for speculating on all the affairs of human life." 17 S Literary Messenger 130, 134 (1851).

See also Paul Finkelman, Story Telling on the Supreme Court: Prigg v Pennsylvania and Justice Joseph Story's Judicial Nationalism, 1994 Supreme Court Review 247 (1995) (examining limited Story's options given proslavery law).

"Antislavery advocates were able to set before the public at large a coherent critique of instrumentalism based upon the antislavery jurisprudence they had developed." [539]

Before slipping too far into speculation about Stowe's impact on law reform, one should consider the Southern reaction. Because the South responded to Stowe's criticisms--and because the South's perception of Northern threats to slavery was at least as important in leading the country to Civil War as were actual threats to slavery made by Lincoln in the winter of 1860--it is important to examine how Southerners responded to Stowe. Although Stowe failed to convince Southern legislatures to take steps to abolish slavery wholesale, abolitionists did provoke a reaction from the South. The reaction took several forms. First, Southerners acknowledged that the slave code could be improved. Reverend Edward Stearns, for example, argued in his Notes on Uncle Tom's Cabin that some cruelties could be remedied by modification of the slave code.⁽¹⁵⁶⁾ In his popular 1854 treatise A South-Side View of Slavery, Nehemiah Adams suggested modification of the law to allow slaves to marry.⁽¹⁵⁷⁾

But even while proposing modification of slave law to avoid problems identified by Stowe, some believed that modifications made in slave law as a result of abolitionist agitation were harmful. Adams suggested that distribution of abolitionist newspapers resulted in harsher slave laws, thereby indicting Stowe and other abolitionists for the laws she criticized. "As northern zeal has promulgated bolder sentiments with regard to the right and duty of slaves to steal, burn, and kill, in effecting their liberty, the South has entrenched itself by more vigorous laws and customs; and it is not strange that in argument also some positions should be taken which once would have found no defenders."⁽¹⁵⁸⁾The impact of Stowe's critique of law should include analysis of the reaction in the Southern legislatures.

Although legal historians have identified the connection between scientific thought and legal reasoning in the nineteenth century, we are far from a complete understanding of their relationship. See, e.g., Herbert Hovenkamp, Evolutionary Models in Jurisprudence, 64 Tex L Rev 645 (1985); Donald Eliot, The Evolutionary Tradition in Jurisprudence, 85 Colum L Rev 38 (1985). Ann Loveland, Evangelicals in the South;

Cf. Rush Welter, The Mind of America, 1820-1860 (Columbia, 1975) (identifying as key themes in American thought America's mission, contrasting Whig ideas, based on reason, with Democratic ideas based on popular beliefs and positing that Democratic ideas dominated political discourse).

Catherine Beecher, Essay on Slavery and Abolitionism 9 (Henry Perkins, Philadelphia, 1837) ("awaken public sentiment); "What is the thing that is to be done to end slavery at the South? It is to alter the laws, and to do this, a small minority must begin a long, bitter, terrible conflict with a powerful and exasperated minority."

Alan Heimert, Moby Dick and American Political Symbolism, 15 Am Q 498-534 (1963).

On Intellectuals' concern for a national literature--and its effects on the mind--see James W. Simmons, American Literature 3 S Lit J 68 (1836-37); WG Simms, Southern Literature: Its Conditions, Prospects, and History, 3 Magnolia 3 (1841);

See also 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 (unpublished paper).