Humanity, utility, and logic in southern legal thought: Harriet Beecher Stowe's vision in Dred: A Tale of the Great Dismal Swamp

Boston University Law Review

Volumn 78, Issue 4, 1998, Pages 1113-1161

  Brophy, Alfred L ^a  

^a NONE

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EID: 0032272096     PISSN: 00068047     EISSN: None     Source Type: Journal    
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References (231)

1. 1 HARRIET BEECHER STOWE, DRED: A TALE OF THE GREAT DISMAL SWAMP (Cambridge, Riverside Press 1856) [hereinafter (volume) DRED].
2. HARRIET BEECHER STOWE, UNCLE TOM'S CABIN (Library of America ed. 1983) (1852).
3. 1 DRED, supra note 1, at xiv.
4. HARRIET BEECHER STOWE, A KEY TO UNCLE TOM'S CABIN (Boston, John P. Jewett & Co. 1853) [hereinafter KEY]. A Key to Uncle Tom's Cabin is a collection of laws, judicial cases, and vignettes Stowe published in 1853 to provide factual support for her novel.
5. See generally H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593 (1958) (explaining and defending the separation of law and morals); Lon L. Fuller, Positivism and Fidelity to Law - A Reply to Professor Hart, 71 HARV. L. REV. 630 (1958) (attacking separation of law and morals).
6. See generally H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593 (1958) (explaining and defending the separation of law and morals); Lon L. Fuller, Positivism and Fidelity to Law - A Reply to Professor Hart, 71 HARV. L. REV. 630 (1958) (attacking separation of law and morals).
7. See generally ROBERT M. COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS (1975) (examining antislavery attitudes of antebellum jurists); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 256-66 (1977) (discussing the rise of formalism in American law); William E. Nelson, The Impact of the Antislavery Movement upon Styles of Judicial Reasoning in Nineteenth Century America, 87 HARV. L. REV. 513 (1974) (attributing rise of formalism to antislavery ideology, which opposed proslavery instrumentalism).
8. See generally ROBERT M. COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS (1975) (examining antislavery attitudes of antebellum jurists); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 256-66 (1977) (discussing the rise of formalism in American law); William E. Nelson, The Impact of the Antislavery Movement upon Styles of Judicial Reasoning in Nineteenth Century America, 87 HARV. L. REV. 513 (1974) (attributing rise of formalism to antislavery ideology, which opposed proslavery instrumentalism).
9. See generally ROBERT M. COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS (1975) (examining antislavery attitudes of antebellum jurists); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 256-66 (1977) (discussing the rise of formalism in American law); William E. Nelson, The Impact of the Antislavery Movement upon Styles of Judicial Reasoning in Nineteenth Century America, 87 HARV. L. REV. 513 (1974) (attributing rise of formalism to antislavery ideology, which opposed proslavery instrumentalism).
10. See generally HORWITZ, supra note 6, ch. 1 (discussing the emergence of instrumentalism in American law).
11. See generally Thomas Cooper, Bentham's Judicial Evidence, 5 S. REV. 381 (1830) (examining Bentham's utilitarian approach to reforming the law of evidence in English jurisprudence); H.L.A. Hart, Law in the Perspective of Philosophy: 1776-1976, 51 N.Y.U. L. REV. 538, 546-50 (1976) (discussing utilitarian influence in American jurisprudence).
12. See generally Thomas Cooper, Bentham's Judicial Evidence, 5 S. REV. 381 (1830) (examining Bentham's utilitarian approach to reforming the law of evidence in English jurisprudence); H.L.A. Hart, Law in the Perspective of Philosophy: 1776-1976, 51 N.Y.U. L. REV. 538, 546-50 (1976) (discussing utilitarian influence in American jurisprudence).
13. See, e.g., 1 HENRY ST. GEORGE TUCKER, BLACKSTONE'S COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED STATES; AND THE COMMONWEALTH OF VIRGINIA iii-vi (Philadelphia, William Young Birch & Abraham Small 1803) (questioning role of opposition to slavery in light of legislation supporting slavery).
14. See generally COVER, supra note 6, at 197-256. It is common to phrase the debate as one between law and morality. Stowe, however, phrased the debate as one between "humane feelings" and law. See KEY, supra note 4, at 77. To preserve Stowe's language, with its connotations of sentimentality and of the role of emotions in evoking reform, this essay usually uses the word "humanity" where Professor Cover and others write in terms of morality. See generally CATHY N. DAVIDSON, REVOLUTION AND THE WORD: THE RISE OF THE NOVEL IN AMERICA 125-36 (1986) (focusing on sentimentality and social commentary); Elizabeth B. Clark, "The Sacred Rights of the Weak": Pain, Sympathy, and the Culture of Individual Rights in Antebellum America, 82 J. AM. HIST. 463 (1995) (analyzing the effect of sentiment on law).
15. See generally COVER, supra note 6, at 197-256. It is common to phrase the debate as one between law and morality. Stowe, however, phrased the debate as one between "humane feelings" and law. See KEY, supra note 4, at 77. To preserve Stowe's language, with its connotations of sentimentality and of the role of emotions in evoking reform, this essay usually uses the word "humanity" where Professor Cover and others write in terms of morality. See generally CATHY N. DAVIDSON, REVOLUTION AND THE WORD: THE RISE OF THE NOVEL IN AMERICA 125-36 (1986) (focusing on sentimentality and social commentary); Elizabeth B. Clark, "The Sacred Rights of the Weak": Pain, Sympathy, and the Culture of Individual Rights in Antebellum America, 82 J. AM. HIST. 463 (1995) (analyzing the effect of sentiment on law).
16. See COVER, supra note 6, at 199, 229-32 ("By 'elevation of formal stakes,' I mean the tendency to choose the highest of possible justifications for the principle of the formalism relied upon.").
17. See id. at 232-36 (describing the judicial tendency to take the easy way out by resorting to a "mechanistic" application of "the law and the law alone" when confronted with the "moral-formal" dilemma).
18. See id. at 236-38 (describing the practice of attributing moral responsibility on others, particularly by pointing to the doctrine of "separation of powers").
19. For examples of historical analogs, see HORWITZ, supra note 6, at 1-30 (demonstrating that instrumentalism, rather than formalism, dominated judicial reasoning in early nineteenth century); KARL LEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 38 (1960) (depicting formalism as dominant style of reasoning in period 1850-1940); Richard Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29 (1972) (suggesting that late nineteenth-century judges adopted a tort law shaped by economic principles); M.H. Hoeflich, Law and Geometry: Legal Science from Liebniz to Langdell, 30 AM. J. LEGAL HIST. 95, 96-98 (1986) (arguing that a "geometric paradigm" of legal sciences was a highly influential precursor to the theories of legal science made popular during the postbellum period). The nature of early American legal thought continues to generate substantial interest. See, e.g., WILLIAM P. LAPIANA, LOGIC AND EXPERIENCE: THE ORIGIN OF MODERN AMERICAN LEGAL EDUCATION (1994); Stephen M. Feldman, From Premodern to Modern American Jurisprudence: The Onset of Positivism, 50 VAND. L. REV. 1387, 1394-1417 (1997) (providing an overview of premodern legal science in America). Stowe promises one interpretation of how judges decided cases and how one should respond to that interpretation. For examples of contemporary analogs, see Nomination of Judge Clarence Thomas to be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Comm. on the Judiciary, 102nd Cong. 237-43 (1991) (notes for appearance of Erwin N. Griswold ) (questioning the role of natural law in constitutional interpretation); Nomination of Robert H. Bork to be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Comm. on the Judiciary, 100th Cong. 319-22 (1987) (exchange between Senator Joseph Biden and Judge Robert Bork over role of precedent and "substantive due process," particularly as it relates to slavery).
20. For examples of historical analogs, see HORWITZ, supra note 6, at 1-30 (demonstrating that instrumentalism, rather than formalism, dominated judicial reasoning in early nineteenth century); KARL LEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 38 (1960) (depicting formalism as dominant style of reasoning in period 1850-1940); Richard Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29 (1972) (suggesting that late nineteenth-century judges adopted a tort law shaped by economic principles); M.H. Hoeflich, Law and Geometry: Legal Science from Liebniz to Langdell, 30 AM. J. LEGAL HIST. 95, 96-98 (1986) (arguing that a "geometric paradigm" of legal sciences was a highly influential precursor to the theories of legal science made popular during the postbellum period). The nature of early American legal thought continues to generate substantial interest. See, e.g., WILLIAM P. LAPIANA, LOGIC AND EXPERIENCE: THE ORIGIN OF MODERN AMERICAN LEGAL EDUCATION (1994); Stephen M. Feldman, From Premodern to Modern American Jurisprudence: The Onset of Positivism, 50 VAND. L. REV. 1387, 1394-1417 (1997) (providing an overview of premodern legal science in America). Stowe promises one interpretation of how judges decided cases and how one should respond to that interpretation. For examples of contemporary analogs, see Nomination of Judge Clarence Thomas to be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Comm. on the Judiciary, 102nd Cong. 237-43 (1991) (notes for appearance of Erwin N. Griswold ) (questioning the role of natural law in constitutional interpretation); Nomination of Robert H. Bork to be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Comm. on the Judiciary, 100th Cong. 319-22 (1987) (exchange between Senator Joseph Biden and Judge Robert Bork over role of precedent and "substantive due process," particularly as it relates to slavery).
21. For examples of historical analogs, see HORWITZ, supra note 6, at 1-30 (demonstrating that instrumentalism, rather than formalism, dominated judicial reasoning in early nineteenth century); KARL LEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 38 (1960) (depicting formalism as dominant style of reasoning in period 1850-1940); Richard Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29 (1972) (suggesting that late nineteenth-century judges adopted a tort law shaped by economic principles); M.H. Hoeflich, Law and Geometry: Legal Science from Liebniz to Langdell, 30 AM. J. LEGAL HIST. 95, 96-98 (1986) (arguing that a "geometric paradigm" of legal sciences was a highly influential precursor to the theories of legal science made popular during the postbellum period). The nature of early American legal thought continues to generate substantial interest. See, e.g., WILLIAM P. LAPIANA, LOGIC AND EXPERIENCE: THE ORIGIN OF MODERN AMERICAN LEGAL EDUCATION (1994); Stephen M. Feldman, From Premodern to Modern American Jurisprudence: The Onset of Positivism, 50 VAND. L. REV. 1387, 1394-1417 (1997) (providing an overview of premodern legal science in America). Stowe promises one interpretation of how judges decided cases and how one should respond to that interpretation. For examples of contemporary analogs, see Nomination of Judge Clarence Thomas to be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Comm. on the Judiciary, 102nd Cong. 237-43 (1991) (notes for appearance of Erwin N. Griswold ) (questioning the role of natural law in constitutional interpretation); Nomination of Robert H. Bork to be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Comm. on the Judiciary, 100th Cong. 319-22 (1987) (exchange between Senator Joseph Biden and Judge Robert Bork over role of precedent and "substantive due process," particularly as it relates to slavery).
22. For examples of historical analogs, see HORWITZ, supra note 6, at 1-30 (demonstrating that instrumentalism, rather than formalism, dominated judicial reasoning in early nineteenth century); KARL LEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 38 (1960) (depicting formalism as dominant style of reasoning in period 1850-1940); Richard Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29 (1972) (suggesting that late nineteenth-century judges adopted a tort law shaped by economic principles); M.H. Hoeflich, Law and Geometry: Legal Science from Liebniz to Langdell, 30 AM. J. LEGAL HIST. 95, 96-98 (1986) (arguing that a "geometric paradigm" of legal sciences was a highly influential precursor to the theories of legal science made popular during the postbellum period). The nature of early American legal thought continues to generate substantial interest. See, e.g., WILLIAM P. LAPIANA, LOGIC AND EXPERIENCE: THE ORIGIN OF MODERN AMERICAN LEGAL EDUCATION (1994); Stephen M. Feldman, From Premodern to Modern American Jurisprudence: The Onset of Positivism, 50 VAND. L. REV. 1387, 1394-1417 (1997) (providing an overview of premodern legal science in America). Stowe promises one interpretation of how judges decided cases and how one should respond to that interpretation. For examples of contemporary analogs, see Nomination of Judge Clarence Thomas to be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Comm. on the Judiciary, 102nd Cong. 237-43 (1991) (notes for appearance of Erwin N. Griswold ) (questioning the role of natural law in constitutional interpretation); Nomination of Robert H. Bork to be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Comm. on the Judiciary, 100th Cong. 319-22 (1987) (exchange between Senator Joseph Biden and Judge Robert Bork over role of precedent and "substantive due process," particularly as it relates to slavery).
23. For examples of historical analogs, see HORWITZ, supra note 6, at 1-30 (demonstrating that instrumentalism, rather than formalism, dominated judicial reasoning in early nineteenth century); KARL LEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 38 (1960) (depicting formalism as dominant style of reasoning in period 1850-1940); Richard Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29 (1972) (suggesting that late nineteenth-century judges adopted a tort law shaped by economic principles); M.H. Hoeflich, Law and Geometry: Legal Science from Liebniz to Langdell, 30 AM. J. LEGAL HIST. 95, 96-98 (1986) (arguing that a "geometric paradigm" of legal sciences was a highly influential precursor to the theories of legal science made popular during the postbellum period). The nature of early American legal thought continues to generate substantial interest. See, e.g., WILLIAM P. LAPIANA, LOGIC AND EXPERIENCE: THE ORIGIN OF MODERN AMERICAN LEGAL EDUCATION (1994); Stephen M. Feldman, From Premodern to Modern American Jurisprudence: The Onset of Positivism, 50 VAND. L. REV. 1387, 1394-1417 (1997) (providing an overview of premodern legal science in America). Stowe promises one interpretation of how judges decided cases and how one should respond to that interpretation. For examples of contemporary analogs, see Nomination of Judge Clarence Thomas to be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Comm. on the Judiciary, 102nd Cong. 237-43 (1991) (notes for appearance of Erwin N. Griswold ) (questioning the role of natural law in constitutional interpretation); Nomination of Robert H. Bork to be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Comm. on the Judiciary, 100th Cong. 319-22 (1987) (exchange between Senator Joseph Biden and Judge Robert Bork over role of precedent and "substantive due process," particularly as it relates to slavery).
24. See, e.g., G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE, 1815-1835, at 40-49 (1988) (demonstrating that one of the major themes of Cooper's The Pioneers was the distinction between justice and law); PERRY MILLER, THE LIFE OF THE MIND IN AMERICA: FROM THE REVOLUTION TO THE CIVIL WAR 104 (1965) (employing Cooper's The Pathfinder to illuminate "the concept of a man who knows justice not by law but by instinct"). Cooper's later works, such as The Redskins (New York, 1853), represent a shift in his thinking. They concern the way that law is subverted by democratic passion. Melville, however, who wrote Billy Budd near the end of his life, had been developing the themes he explores there throughout his work. See, e.g., HERMAN MELVILLE, PIERRE: OR, THE AMBIGUITIES 93 (Grove Press 1957) (1852) (contrasting the "cold halls of justice" with the "warm halls of the heart").
25. See, e.g., G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE, 1815-1835, at 40-49 (1988) (demonstrating that one of the major themes of Cooper's The Pioneers was the distinction between justice and law); PERRY MILLER, THE LIFE OF THE MIND IN AMERICA: FROM THE REVOLUTION TO THE CIVIL WAR 104 (1965) (employing Cooper's The Pathfinder to illuminate "the concept of a man who knows justice not by law but by instinct"). Cooper's later works, such as The Redskins (New York, 1853), represent a shift in his thinking. They concern the way that law is subverted by democratic passion. Melville, however, who wrote Billy Budd near the end of his life, had been developing the themes he explores there throughout his work. See, e.g., HERMAN MELVILLE, PIERRE: OR, THE AMBIGUITIES 93 (Grove Press 1957) (1852) (contrasting the "cold halls of justice" with the "warm halls of the heart").
26. See, e.g., G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE, 1815-1835, at 40-49 (1988) (demonstrating that one of the major themes of Cooper's The Pioneers was the distinction between justice and law); PERRY MILLER, THE LIFE OF THE MIND IN AMERICA: FROM THE REVOLUTION TO THE CIVIL WAR 104 (1965) (employing Cooper's The Pathfinder to illuminate "the concept of a man who knows justice not by law but by instinct"). Cooper's later works, such as The Redskins (New York, 1853), represent a shift in his thinking. They concern the way that law is subverted by democratic passion. Melville, however, who wrote Billy Budd near the end of his life, had been developing the themes he explores there throughout his work. See, e.g., HERMAN MELVILLE, PIERRE: OR, THE AMBIGUITIES 93 (Grove Press 1957) (1852) (contrasting the "cold halls of justice" with the "warm halls of the heart").
27. See generally William Dunlap, André (New York, 1798), reprinted in REPRESENTATIVE AMERICAN PLAYS 83 (Arthur Hobson Quinn ed., 6th ed. 1938).
28. See id. at 96. James Waddell saw the analogy to Major André in Uncle Tom's Cabin Reviewed. See JAMES WADDELL, UNCLE TOM'S CABIN REVIEWED 42 (Raleigh, NC 1853). See also James N. Barker, Superstition (Philadelphia, 1826), reprinted in REPRESENTATIVE AMERICAN PLAYS, supra note 16, at 113 (play about the Salem Witchcraft trials and problems in reducing the standard of proof).
29. See id. at 96. James Waddell saw the analogy to Major André in Uncle Tom's Cabin Reviewed. See JAMES WADDELL, UNCLE TOM'S CABIN REVIEWED 42 (Raleigh, NC 1853). See also James N. Barker, Superstition (Philadelphia, 1826), reprinted in REPRESENTATIVE AMERICAN PLAYS, supra note 16, at 113 (play about the Salem Witchcraft trials and problems in reducing the standard of proof).
30. See generally Royall Tyler, The Judgement of Solomon, reprinted in FOUR PLAYS (Arthur Wallace Peach & George Floyd Newbrough eds., 1941).
31. J.P. KENNEDY, SWALLOW BARN: OR, A SOJOURN IN THE OLD DOMINION (New York, G.P. Putnam & Co. 1853). Walter Scott's novels, such as Heart of Midlothian, which captured a wide Southern audience, explore similar themes. See 2 THE CAMBRIDGE HISTORY OF AMERICAN LITERATURE: 1820-1865, at 258 (Sacvan Bercovitch & Syrus R.K. Patell eds., 1995) (discussing Scott's popularity). The popularity of his novels suggests the appeal of the humanity-law distinction, although Scott's heroes were the people who followed the dictates of law rather than humanity. Cf. THOMAS DEW, A DIGEST OF THE LAWS, CUSTOMS, MANNERS, AND INSTITUTIONS OF THE ANCIENT AND MODERN NATION 43 (New York, B. Appleton & Co. 1853) (referring to Scott's novels while observing that "fiction possesses [the] trait" of "being in accordance with the character of the times").
32. See generally COVER, supra note 6; Louis S. GERTEIS, MORALITY AND UTILITY IN AMERICAN ANTI-SLAVERY REFORM (1987); Aviam Soifer, Status, Contract, and Promises Unkept, 96 YALE L.J. 1916, 1921-27 (1987) (providing a description of Betty's Case, which represents the level of public involvement in the legal debate over slavery).
33. The most recent evidence of the Stowe renaissance is Joan Hedrick's Pulitzer Prize-winning biography. See JOAN D. HEDRICK, HARRIET BEECHER STOWE: A LIFE (1994). For four perceptive analyses of Dred, see ALICE C. CROZIER, THE NOVELS OF HARRIET BEECHER STOWE ch. 2 (1969); HEDRICK, supra, at 258-64; BROOK THOMAS, CROSS-EXAMINATIONS OF LAW AND LITERATURE: COOPER, HAWTHORNE, STOWE AND MELVILLE 133-37 (1987); Mark Randall Grüner, Stowe's Dred: Literary Domesticity and the Law of Slavery, 20 PROSPECTS 1 (1995).
34. Book Review, 101 Q. REV. 324, 324 (1857) (reviewing Dred).
35. 13 N.C. (2 Dev.) 263, 268 (1829).
36. These facts resemble closely Hinds v. Brazealle, 3 Miss. (2 Howard) 837 (1838), where the court invalidated a deed of emancipation and thus eliminated a slave's right to inherit.
37. One can see the genesis of Dred in A Key to Uncle Tom's Cabin. From Stowe's focus on Judge Thomas Ruffin to setting the action in the Dismal Swamp, the characters, setting, and ideas that emerged in Dred were explored in non-fiction format in the Key. In the Key Stowe quoted Henry Wadsworth Longfellow's poem, The Dismal Swamp, about a slave hunted in the swamp, which provides a setting strikingly similar to the death of Dred. See KEY, supra note 4, at 86. She also collected notices declaring fugitive slaves outlaws and authorizing their killing, which she quoted in Dred. See id. at 85 (reprinting a notice that offered $125 for the return of a fugitive slave and $150 for his head). Stowe's ideas about law in the Key are collected, in turn, from abolitionist writers, who had devoted substantial energy to examining the legal duties of lawyers and judges. See HEDRICK, supra note 21, at 230-31 (discussing sources of the Key); see also THEODORE WELD, AMERICAN SLAVERY As IT IS: TESTIMONY OF A THOUSAND WITNESSES 143 (New York, American Anti-Slavery Society 1839) (criticizing the major role public opinion has played in perpetuating slavery).
38. See KEY, supra note 4, at 77-79 (discussing State v. Mann). Ruffin caught the attention of abolitionists with his decision in Mann. For other references to Mann, see WELD, supra note 25, at 143 (discussing the harshness of slavery, to show how slaves were vulnerable to their masters' total control); WILLIAM GOODELL, THE AMERICAN SLAVE CODE IN THEORY AND PRACTICE 174-75 (New York, American & Foreign Anti-Slavery Society 1853) ("The struggle between the man and the magistrate, implying that slavery requires of its magistrates to trample upon their own manhood; the cool and deliberate decision to do this, and to elevate the law of slavery above the law of nature and of nature's God, are painful but instructive features of the exhibition."). Ruffin was recognized by his contemporaries as having conflicting obligations. See THEODORE PARKER, A LETTER TO THE PEOPLE OF THE UNITED STATES TOUCHING THE MATTER OF SLAVERY 85 (Boston, James Munroe & Co. 1848) (quoting one of Ruffin's sorrowful declarations).
39. See KEY, supra note 4, at 77-79 (discussing State v. Mann). Ruffin caught the attention of abolitionists with his decision in Mann. For other references to Mann, see WELD, supra note 25, at 143 (discussing the harshness of slavery, to show how slaves were vulnerable to their masters' total control); WILLIAM GOODELL, THE AMERICAN SLAVE CODE IN THEORY AND PRACTICE 174-75 (New York, American & Foreign Anti-Slavery Society 1853) ("The struggle between the man and the magistrate, implying that slavery requires of its magistrates to trample upon their own manhood; the cool and deliberate decision to do this, and to elevate the law of slavery above the law of nature and of nature's God, are painful but instructive features of the exhibition."). Ruffin was recognized by his contemporaries as having conflicting obligations. See THEODORE PARKER, A LETTER TO THE PEOPLE OF THE UNITED STATES TOUCHING THE MATTER OF SLAVERY 85 (Boston, James Munroe & Co. 1848) (quoting one of Ruffin's sorrowful declarations).
40. See Mann, 13 N.C. at 263.
41. See id.
42. See id.
43. See id. at 268.
44. See id. at 264-68.
45. Mann, 13 N.C. at 264.
46. See id.
47. See id. at 265.
48. Id.
49. See id. ("The difference is that which exists between freedom and slavery and a greater cannot be imagined.").
50. See Mann, 13 N.C. at 266 ("Moderate force is superadded . . . [i]f they fail, it is better to leave the party to his own headstrong passions, and the ultimate correction of the law, than to allow it to be immoderately inflicted by a private person.").
51. Id.
52. Id. In 1849 Ruffin dissented from the reduction of a slave's murder conviction to manslaughter on the grounds that the slave was provoked. He thought that the "great mass of [slaves] - born with deference to the white man, take the most contumelious language without answering again, and generally submit tamely to his buffets, though unlawful and unmerited." State v. Caesar, 31 N.C. (9 Ired.) 391, 421 (1849).
53. Mann, 13 N.C. at 266.
54. Id.
55. Id.
56. See, e.g., Albert Taylor Bledsoe, Liberty and Slavery: Or, Slavery in the Light of Moral and Political Philosophy, in COTTON IS KING AND PROSLAVERY ARGUMENTS 271, 278 (E.N. Elliott ed., Augusta, GA, Pritchard, Abbott & Loomis 1860) ("The law which forbids mischief is a restraint not upon the natural liberty, but upon the natural tyranny of man."); John C. Calhoun, A Disquisition on Government, in 1 WORKS OF JOHN C. CALHOUN 55 (R. Crallé ed., 1851) ("It is a great and dangerous error to suppose that all people are equally entitled to liberty. It is a reward to be earned, not a blessing to be gratuitously lavished on all alike; . . . not a boon to be bestowed on a people too ignorant, degraded and vicious, to be capable either of appreciating or of enjoying it."); id. at 52 ("For to extend liberty beyond the limits assigned, would be to weaken government and to render it incompetent to fulfill its primary end-the protection of society against dangers, internal and external."); Louisa McCord, Diversity of the Races; Its Bearing upon Negro Slavery, 3 S.Q. REV. 392, reprinted in LOUISA MCCORD: POLITICAL AND SOCIAL ESSAYS 159, 173 (Richard C. Lounsbury ed., 1995) ("The white man, made for liberty . . . rebels at what 'the submissive, obsequious, imitative negro' finds, perhaps, his happiest existence."); William A. Smith, The Necessity for the Institution of Domestic Slavery Exemplified by Facts, in LECTURES ON THE PHILOSOPHY AND PRACTICE OF SLAVERY 192 (Thomas O. Summers ed., Nashville, Stevenson and Evans 1856) (supporting propositions that "Africans are not, in point of intellectual and moral development, fitted for that measure of self-government which is necessary to political sovereignty; that political equality cannot be justly claimed for them - they have no right to it: that to them it could not be an essential good, but an essential evil, a curse"). Not all judges shared Ruffin's honesty, but as Ariela Gross and William Fisher have shown, many Southern judges explained their decisions using references to their understanding of slave character. See generally William W. Fisher III, Ideology and Imagery in the Law of Slavery, 68 CHI.-KENT L. REV. 1051, 1057-64 (1993) (describing the use of stereotypical images of Black characters by Southern judges); Ariela Gross, Pandora's Box: Slave Character on Trial in the Antebellum Deep South, 7 YALE J.L. & HUMAN. 267, 271 (1994) (examining "the legal construction of black character").
57. See, e.g., Albert Taylor Bledsoe, Liberty and Slavery: Or, Slavery in the Light of Moral and Political Philosophy, in COTTON IS KING AND PROSLAVERY ARGUMENTS 271, 278 (E.N. Elliott ed., Augusta, GA, Pritchard, Abbott & Loomis 1860) ("The law which forbids mischief is a restraint not upon the natural liberty, but upon the natural tyranny of man."); John C. Calhoun, A Disquisition on Government, in 1 WORKS OF JOHN C. CALHOUN 55 (R. Crallé ed., 1851) ("It is a great and dangerous error to suppose that all people are equally entitled to liberty. It is a reward to be earned, not a blessing to be gratuitously lavished on all alike; . . . not a boon to be bestowed on a people too ignorant, degraded and vicious, to be capable either of appreciating or of enjoying it."); id. at 52 ("For to extend liberty beyond the limits assigned, would be to weaken government and to render it incompetent to fulfill its primary end-the protection of society against dangers, internal and external."); Louisa McCord, Diversity of the Races; Its Bearing upon Negro Slavery, 3 S.Q. REV. 392, reprinted in LOUISA MCCORD: POLITICAL AND SOCIAL ESSAYS 159, 173 (Richard C. Lounsbury ed., 1995) ("The white man, made for liberty . . . rebels at what 'the submissive, obsequious, imitative negro' finds, perhaps, his happiest existence."); William A. Smith, The Necessity for the Institution of Domestic Slavery Exemplified by Facts, in LECTURES ON THE PHILOSOPHY AND PRACTICE OF SLAVERY 192 (Thomas O. Summers ed., Nashville, Stevenson and Evans 1856) (supporting propositions that "Africans are not, in point of intellectual and moral development, fitted for that measure of self-government which is necessary to political sovereignty; that political equality cannot be justly claimed for them - they have no right to it: that to them it could not be an essential good, but an essential evil, a curse"). Not all judges shared Ruffin's honesty, but as Ariela Gross and William Fisher have shown, many Southern judges explained their decisions using references to their understanding of slave character. See generally William W. Fisher III, Ideology and Imagery in the Law of Slavery, 68 CHI.-KENT L. REV. 1051, 1057-64 (1993) (describing the use of stereotypical images of Black characters by Southern judges); Ariela Gross, Pandora's Box: Slave Character on Trial in the Antebellum Deep South, 7 YALE J.L. & HUMAN. 267, 271 (1994) (examining "the legal construction of black character").
58. See, e.g., Albert Taylor Bledsoe, Liberty and Slavery: Or, Slavery in the Light of Moral and Political Philosophy, in COTTON IS KING AND PROSLAVERY ARGUMENTS 271, 278 (E.N. Elliott ed., Augusta, GA, Pritchard, Abbott & Loomis 1860) ("The law which forbids mischief is a restraint not upon the natural liberty, but upon the natural tyranny of man."); John C. Calhoun, A Disquisition on Government, in 1 WORKS OF JOHN C. CALHOUN 55 (R. Crallé ed., 1851) ("It is a great and dangerous error to suppose that all people are equally entitled to liberty. It is a reward to be earned, not a blessing to be gratuitously lavished on all alike; . . . not a boon to be bestowed on a people too ignorant, degraded and vicious, to be capable either of appreciating or of enjoying it."); id. at 52 ("For to extend liberty beyond the limits assigned, would be to weaken government and to render it incompetent to fulfill its primary end-the protection of society against dangers, internal and external."); Louisa McCord, Diversity of the Races; Its Bearing upon Negro Slavery, 3 S.Q. REV. 392, reprinted in LOUISA MCCORD: POLITICAL AND SOCIAL ESSAYS 159, 173 (Richard C. Lounsbury ed., 1995) ("The white man, made for liberty . . . rebels at what 'the submissive, obsequious, imitative negro' finds, perhaps, his happiest existence."); William A. Smith, The Necessity for the Institution of Domestic Slavery Exemplified by Facts, in LECTURES ON THE PHILOSOPHY AND PRACTICE OF SLAVERY 192 (Thomas O. Summers ed., Nashville, Stevenson and Evans 1856) (supporting propositions that "Africans are not, in point of intellectual and moral development, fitted for that measure of self-government which is necessary to political sovereignty; that political equality cannot be justly claimed for them - they have no right to it: that to them it could not be an essential good, but an essential evil, a curse"). Not all judges shared Ruffin's honesty, but as Ariela Gross and William Fisher have shown, many Southern judges explained their decisions using references to their understanding of slave character. See generally William W. Fisher III, Ideology and Imagery in the Law of Slavery, 68 CHI.-KENT L. REV. 1051, 1057-64 (1993) (describing the use of stereotypical images of Black characters by Southern judges); Ariela Gross, Pandora's Box: Slave Character on Trial in the Antebellum Deep South, 7 YALE J.L. & HUMAN. 267, 271 (1994) (examining "the legal construction of black character").
59. See, e.g., Albert Taylor Bledsoe, Liberty and Slavery: Or, Slavery in the Light of Moral and Political Philosophy, in COTTON IS KING AND PROSLAVERY ARGUMENTS 271, 278 (E.N. Elliott ed., Augusta, GA, Pritchard, Abbott & Loomis 1860) ("The law which forbids mischief is a restraint not upon the natural liberty, but upon the natural tyranny of man."); John C. Calhoun, A Disquisition on Government, in 1 WORKS OF JOHN C. CALHOUN 55 (R. Crallé ed., 1851) ("It is a great and dangerous error to suppose that all people are equally entitled to liberty. It is a reward to be earned, not a blessing to be gratuitously lavished on all alike; . . . not a boon to be bestowed on a people too ignorant, degraded and vicious, to be capable either of appreciating or of enjoying it."); id. at 52 ("For to extend liberty beyond the limits assigned, would be to weaken government and to render it incompetent to fulfill its primary end-the protection of society against dangers, internal and external."); Louisa McCord, Diversity of the Races; Its Bearing upon Negro Slavery, 3 S.Q. REV. 392, reprinted in LOUISA MCCORD: POLITICAL AND SOCIAL ESSAYS 159, 173 (Richard C. Lounsbury ed., 1995) ("The white man, made for liberty . . . rebels at what 'the submissive, obsequious, imitative negro' finds, perhaps, his happiest existence."); William A. Smith, The Necessity for the Institution of Domestic Slavery Exemplified by Facts, in LECTURES ON THE PHILOSOPHY AND PRACTICE OF SLAVERY 192 (Thomas O. Summers ed., Nashville, Stevenson and Evans 1856) (supporting propositions that "Africans are not, in point of intellectual and moral development, fitted for that measure of self-government which is necessary to political sovereignty; that political equality cannot be justly claimed for them - they have no right to it: that to them it could not be an essential good, but an essential evil, a curse"). Not all judges shared Ruffin's honesty, but as Ariela Gross and William Fisher have shown, many Southern judges explained their decisions using references to their understanding of slave character. See generally William W. Fisher III, Ideology and Imagery in the Law of Slavery, 68 CHI.-KENT L. REV. 1051, 1057-64 (1993) (describing the use of stereotypical images of Black characters by Southern judges); Ariela Gross, Pandora's Box: Slave Character on Trial in the Antebellum Deep South, 7 YALE J.L. & HUMAN. 267, 271 (1994) (examining "the legal construction of black character").
60. See, e.g., Albert Taylor Bledsoe, Liberty and Slavery: Or, Slavery in the Light of Moral and Political Philosophy, in COTTON IS KING AND PROSLAVERY ARGUMENTS 271, 278 (E.N. Elliott ed., Augusta, GA, Pritchard, Abbott & Loomis 1860) ("The law which forbids mischief is a restraint not upon the natural liberty, but upon the natural tyranny of man."); John C. Calhoun, A Disquisition on Government, in 1 WORKS OF JOHN C. CALHOUN 55 (R. Crallé ed., 1851) ("It is a great and dangerous error to suppose that all people are equally entitled to liberty. It is a reward to be earned, not a blessing to be gratuitously lavished on all alike; . . . not a boon to be bestowed on a people too ignorant, degraded and vicious, to be capable either of appreciating or of enjoying it."); id. at 52 ("For to extend liberty beyond the limits assigned, would be to weaken government and to render it incompetent to fulfill its primary end-the protection of society against dangers, internal and external."); Louisa McCord, Diversity of the Races; Its Bearing upon Negro Slavery, 3 S.Q. REV. 392, reprinted in LOUISA MCCORD: POLITICAL AND SOCIAL ESSAYS 159, 173 (Richard C. Lounsbury ed., 1995) ("The white man, made for liberty . . . rebels at what 'the submissive, obsequious, imitative negro' finds, perhaps, his happiest existence."); William A. Smith, The Necessity for the Institution of Domestic Slavery Exemplified by Facts, in LECTURES ON THE PHILOSOPHY AND PRACTICE OF SLAVERY 192 (Thomas O. Summers ed., Nashville, Stevenson and Evans 1856) (supporting propositions that "Africans are not, in point of intellectual and moral development, fitted for that measure of self-government which is necessary to political sovereignty; that political equality cannot be justly claimed for them - they have no right to it: that to them it could not be an essential good, but an essential evil, a curse"). Not all judges shared Ruffin's honesty, but as Ariela Gross and William Fisher have shown, many Southern judges explained their decisions using references to their understanding of slave character. See generally William W. Fisher III, Ideology and Imagery in the Law of Slavery, 68 CHI.-KENT L. REV. 1051, 1057-64 (1993) (describing the use of stereotypical images of Black characters by Southern judges); Ariela Gross, Pandora's Box: Slave Character on Trial in the Antebellum Deep South, 7 YALE J.L. & HUMAN. 267, 271 (1994) (examining "the legal construction of black character").
61. See, e.g., Albert Taylor Bledsoe, Liberty and Slavery: Or, Slavery in the Light of Moral and Political Philosophy, in COTTON IS KING AND PROSLAVERY ARGUMENTS 271, 278 (E.N. Elliott ed., Augusta, GA, Pritchard, Abbott & Loomis 1860) ("The law which forbids mischief is a restraint not upon the natural liberty, but upon the natural tyranny of man."); John C. Calhoun, A Disquisition on Government, in 1 WORKS OF JOHN C. CALHOUN 55 (R. Crallé ed., 1851) ("It is a great and dangerous error to suppose that all people are equally entitled to liberty. It is a reward to be earned, not a blessing to be gratuitously lavished on all alike; . . . not a boon to be bestowed on a people too ignorant, degraded and vicious, to be capable either of appreciating or of enjoying it."); id. at 52 ("For to extend liberty beyond the limits assigned, would be to weaken government and to render it incompetent to fulfill its primary end-the protection of society against dangers, internal and external."); Louisa McCord, Diversity of the Races; Its Bearing upon Negro Slavery, 3 S.Q. REV. 392, reprinted in LOUISA MCCORD: POLITICAL AND SOCIAL ESSAYS 159, 173 (Richard C. Lounsbury ed., 1995) ("The white man, made for liberty . . . rebels at what 'the submissive, obsequious, imitative negro' finds, perhaps, his happiest existence."); William A. Smith, The Necessity for the Institution of Domestic Slavery Exemplified by Facts, in LECTURES ON THE PHILOSOPHY AND PRACTICE OF SLAVERY 192 (Thomas O. Summers ed., Nashville, Stevenson and Evans 1856) (supporting propositions that "Africans are not, in point of intellectual and moral development, fitted for that measure of self-government which is necessary to political sovereignty; that political equality cannot be justly claimed for them - they have no right to it: that to them it could not be an essential good, but an essential evil, a curse"). Not all judges shared Ruffin's honesty, but as Ariela Gross and William Fisher have shown, many Southern judges explained their decisions using references to their understanding of slave character. See generally William W. Fisher III, Ideology and Imagery in the Law of Slavery, 68 CHI.-KENT L. REV. 1051, 1057-64 (1993) (describing the use of stereotypical images of Black characters by Southern judges); Ariela Gross, Pandora's Box: Slave Character on Trial in the Antebellum Deep South, 7 YALE J.L. & HUMAN. 267, 271 (1994) (examining "the legal construction of black character").
62. Ruffin expressed the common argument of proslavery writers that the good of society was an important goal when establishing the rules governing slavery. See, e.g., Chancellor William Harper, Slavery in the Light of Social Ethics, in COTTON is KING, supra note 43 at 549, 550 ("[I]f the maintenance of our institutions be essential to our prosperity, our character, our safety, and the safety of all that is dear to us, let us enlighten our minds and fortify our hearts to defend them."); Bledsoe, Liberty and Slavery, in id. at 271, 380 ("[T]he great practical problem of slavery is to be determined, if determined at all, not by an appeal to abstractions, but simply by a consideration of the public good."). Cf. Thomas R. Dew, Professor Dew on Slavery, in THE PROSLAVERY ARGUMENT; As MAINTAINED BY THE MOST DISTINGUISHED WRITERS OF THE SOUTHERN STATES, CONTAINING THE SEVERAL ESSAYS, ON THE SUBJECT OF CHANCELLOR HARPER, GOVERNOR HAMMOND, DR. SIMMS, AND PROFESSOR DEW 287, 293 (Joseph Walker ed., Charleston, Walker, Richards & Co. 1852) ("We fear not the result" of discussion of abolition of slavery, "so far as truth, justice, and expediency alone are considered."). Legal historians debate vigorously the nature of judicial decisions in the antebellum era, centering around the question whether judges self-consciously used opinions to foster economic growth. In short, whether there was an "instrumental" conception of law. See generally HORWITZ, supra note 6, at 3 (characterizing legal thought after 1820 as increasingly preoccupied "with using law as an instrument of policy"); WILLIAM E. NELSON, THE ROOTS OF AMERICAN BUREAUCRACY, 1830-1900, at 58 (1982) (characterizing proslavery legal forces as resting upon arguments that are "politically wise and economically expedient"). There seems to be a consensus emerging that the common law was used to advance judges' philosophy and hence, used self-consciously as an instrument of change. The common law, however, may have fostered changes beyond those depicted by Professor Horwitz. See generally William Weston Fisher III, The Law of the Land: An Intellectual History of Property Law Doctrine, 1776-1880 (Ph.D. Dissertation, Harvard University, 1991) (detailing ways that legal discourse regarding property drew upon-and contributed to-political ideology); PETER KARSTEN, HEART VERSUS HEAD: JUDGE-MADE LAW IN THE NINETEENTH CENTURY 3 (1997) (viewing judges as motivated by sentiment of heart, rather than economics, and portraying changes in law as anti-corporate). Judges appear to consciously craft the law to comport with their social, economic, and historical views as treatise writers encourage the idea that the common law adapts to meet changing societal needs, which is a version of what Horwitz labeled instrumentalism. Chancellor Kent wrote about the changing nature of American law: Considering the influence of manners upon law, and the force of opinion, which is silently and almost insensibly controlling the course of business and the practice of the courts, it is impossible that the fabric of our jurisprudence should not exhibit deep traces of the progress of society, as well as of the footsteps of time. 1 JAMES KENT, COMMENTARIES ON AMERICAN LAW 445-46 (New York, O. Halstead 1826). Ruffin's opinion in State v. Mann fits within the picture of an antebellum judiciary that took the best interests of society into account in framing judicial decisions, as do many other slave cases from North Carolina. For example, State v. Hale, 9 N.C. (2 Hawks) 582, 583 (1823), the only case cited in Mann, imposed liability on a stranger who assaulted a slave in part because Justice Taylor wanted to "keep[ ] pace with the march of benignant policy and provident humanity . . . ." Id.
63. See, e.g., HARPER, supra note 44, at 551 ("President Dew has shown that the institution of slavery is a principal cause of civilization. Perhaps nothing can be more evident than that it is the sole cause."). Other sources detailing the process include: EUGENE D. GENOVESE, THE SLAVEHOLDERS' DILEMMA: FREEDOM AND PROGRESS IN SOUTHERN CONSERVATIVE THOUGHT, 1820-1860, at 10-40 (1992) (explaining Southern proslavery thought across disciplines such as literature, law, and religion); LARRY E. TISE, PROSLAVERY: A HISTORY OF THE DEFENSE OF SLAVERY IN AMERICA, 1701-1840 (1987) (tracing strengthening proslavery religious thought after 1830).
64. See, e.g., HARPER, supra note 44, at 551 ("President Dew has shown that the institution of slavery is a principal cause of civilization. Perhaps nothing can be more evident than that it is the sole cause."). Other sources detailing the process include: EUGENE D. GENOVESE, THE SLAVEHOLDERS' DILEMMA: FREEDOM AND PROGRESS IN SOUTHERN CONSERVATIVE THOUGHT, 1820-1860, at 10-40 (1992) (explaining Southern proslavery thought across disciplines such as literature, law, and religion); LARRY E. TISE, PROSLAVERY: A HISTORY OF THE DEFENSE OF SLAVERY IN AMERICA, 1701-1840 (1987) (tracing strengthening proslavery religious thought after 1830).
65. DEW, supra note 19, at 562-63. See also EUGENE D. GENOVESE, WESTERN CIVILIZATION THROUGH SLAVEHOLDING EYES: THE SOCIAL AND HISTORICAL THOUGHT OF THOMAS RODERICK DEW 2 (1986) (discussing Dew's interpretation of history in light of his social theory).
66. Dew, supra note 44, at 287, 362, 292. See also DREW GILPIN FAUST, THE IDEOLOGY OF SLAVERY: PROSLAVERY THOUGHT IN THE ANTEBELLUM SOUTH, 1830-1860, at 21-23 (1981) (discussing Dew).
67. Some of the best evidence of the change comes from the Virginia Constitutional Convention of 1829-30, where the participants debated elimination of the property qualification for suffrage Many delegates emphasized the importance of practical experience over Enlightenment ideas. See, e.g., PROCEEDINGS AND DEBATES OF THE VIRGINIA STATE CONVENTION OF 1829-30, at 138 (Richmond, Samuel Shepard & Co. 1830) (statement of J.S. Barbour, Nov. 2, 1829) ("Notwithstanding the lights of our own revolution, and those reflected by the lamp of history, we are now to disregard all, and to pursue a path as yet untrodden, either by prudence or success. . . . [Gentlemen] will be guided by experience, rather than follow the lights of the French Revolution. Lights that shone for a time upon the path of despotism. . . ."); id. at 367 (statement of Nicholas, Nov. 18, 1829) ("Those who set the revolution in motion, were many of them . . . virtuous and enlightened men. But they were more of philosophers and theorists, than practical statesmen. . . . They did not know how free Government would work . . . ."); id. at 206 (statement of Joynes, Nov. 5, 1829) ("The only question that a wise Statesman should ask is, whether the measure proposed, is best calculated to operate as they really are; and not, whether the measure conforms to certain rules of theoretical perfection, and would be best adapted to a people such as he would have them to be."). Law often was depicted as bringing order to societies. Man was created for society; and social intercourse is as much a law of his nature, as that he should support his existence by food, promote his comfort by raiment, procure supplies by labor, protect himself from aggression by force. In every state of society - whether savage or civilized - whether patriarchal or political-laws arising from the nature of man, from his weakness, his dependance, his wants, his desires, his appetites, his passions, and his intelligence, must necessarily govern his social relations-regulate his rights and duties. Id. at 264 (statement of Johnson, Nov. 11, 1829). In contrast to those who argued that the Declaration of Independence embodied a commitment to universal emancipation, Southerners responded that "he, only, is the slave, who is forced into a position in society which is below the claim of his intellect and moral." William Gilmore Simms, The Morals of Slavery, in THE PROSLAVERY ARGUMENT, supra note 44, at 175, 258. Some members of the Convention recognized the extent to which political theory had drifted from the time of Jefferson. Phillip Dodderidge was the boldest defender of Revolutionary era principles: In the whole progress of this debate, the name of Thomas Jefferson, the great Apostle of liberty, has never once been invoked, nor has one appeal been made to the author of the Rights of Man, whose immortal work, in the darkest days of our revolution, served as a political decalogue and operated as a talisman to lead our armies to victory. . . . Then, the authority of the sage of Monticello would have stood against the world; now, there are "none so poor as to do him reverence." Then, was Burke regarded as the enemy of human rights and the firmest defender of aristocracy and monarchy - but now Burke, Filmer, and Hobbes, judging from their arguments, have become the textbooks of our statesmen. PROCEEDINGS AND DEBATES OF THE VIRGINIA STATE CONVENTION, supra, at 411 (statement of Dodderidge, Nov. 21, 1829). See also id. at 193 (statement of Mercer, Nov. 5, 1829) ("The gentleman from Chesterfield [Benjamin Watkins Leigh] . . . has cast away Cocker, as well as Locke, and taken up with Robinson Crusoe and De Foe as his authorities. . . . I never before heard this doctrine [of the origin of slavery] deducted from the rights of humanity and the obligation of gratitude."). While there were occasional concessions that "Nature, or Nature's God rather, has conferred certain original rights upon man," they were circumscribed by the argument that "individual coveniency must yield to the good of the whole. We must give up a portion of our natural liberty, in order to enjoy the advantages of social union. . . ." Id. at 351 (statement of Massie, Nov. 18, 1829).
68. For illustrative examples of the importance of construction in literature, see Edgar Allen Poe, The Domain of Arnheim, or the Landscape Garden, in COMPLETE TALES AND POEMS OF EDGAR ALLAN POE 604-15 (Vintage ed., 1975) (celebrating human improvement over nature in Arnheim). For illustrative examples of the threats posed by nature in fine art, see Washington Allston's Ship in a Squall, depicting a white ship threatened by the dark surroundings, which may very well represent white Southern society threatened by Africans, discussed in WILLIAM W. FREEHLING, 1 THE ROAD TO DISUNION: SECESSIONISTS ATBAY, 1776-1854, at 232-36 (1990). Southern political philosophers often wrote of the progress of society and the fragility of advanced society. See, e.g., HARPER, supra note 43, at 565-67. Northern thought celebrated the advancement over nature as well. See, e.g., SAMUEL R. KNAPP, AN ORATION PRONOUNCED BEFORE THE SOCIETY OF PHI BETA KAPPA AT DARTMOUTH COLLEGE 26 (Boston, Commercial Gazette Press 1824) ("The revolution of wisdom which now pours its rays upon us, has changed the laws of Eden by the consent of its Creator."). Legal writers emphasized the dependence of institutions and laws upon human construction. For example, Hugh S. Legaré wrote that: It is quite a matter of course that "the influence of America upon the mind" . . . should become first and chiefly, if not exclusively perceptible, in the department of politics and law. . . . [T]he civil and juridical institutions of a country . . . are, in a great degree, the work of man, and may be moulded, and have been moulded into endless varieties of form, to suit his occasions or his caprices. [Hugh S. Legaré], Commentaries on American Law, 2 S. REV. 72, 73-74 (1828). There are many other examples, such as Joseph LeConte, who analogized societies to biological organisms; as organisms grew, they developed sophisticated functions. See JAMES OSCAR FARMER, JR., THE METAPHYSICAL CONFEDERACY: JAMES HENLEY THORNWELL AND THE SYNTHESIS OF SOUTHERN VALUES 104-08 (1986) (discussing LeConte).
69. For illustrative examples of the importance of construction in literature, see Edgar Allen Poe, The Domain of Arnheim, or the Landscape Garden, in COMPLETE TALES AND POEMS OF EDGAR ALLAN POE 604-15 (Vintage ed., 1975) (celebrating human improvement over nature in Arnheim). For illustrative examples of the threats posed by nature in fine art, see Washington Allston's Ship in a Squall, depicting a white ship threatened by the dark surroundings, which may very well represent white Southern society threatened by Africans, discussed in WILLIAM W. FREEHLING, 1 THE ROAD TO DISUNION: SECESSIONISTS ATBAY, 1776-1854, at 232-36 (1990). Southern political philosophers often wrote of the progress of society and the fragility of advanced society. See, e.g., HARPER, supra note 43, at 565-67. Northern thought celebrated the advancement over nature as well. See, e.g., SAMUEL R. KNAPP, AN ORATION PRONOUNCED BEFORE THE SOCIETY OF PHI BETA KAPPA AT DARTMOUTH COLLEGE 26 (Boston, Commercial Gazette Press 1824) ("The revolution of wisdom which now pours its rays upon us, has changed the laws of Eden by the consent of its Creator."). Legal writers emphasized the dependence of institutions and laws upon human construction. For example, Hugh S. Legaré wrote that: It is quite a matter of course that "the influence of America upon the mind" . . . should become first and chiefly, if not exclusively perceptible, in the department of politics and law. . . . [T]he civil and juridical institutions of a country . . . are, in a great degree, the work of man, and may be moulded, and have been moulded into endless varieties of form, to suit his occasions or his caprices. [Hugh S. Legaré], Commentaries on American Law, 2 S. REV. 72, 73-74 (1828). There are many other examples, such as Joseph LeConte, who analogized societies to biological organisms; as organisms grew, they developed sophisticated functions. See JAMES OSCAR FARMER, JR., THE METAPHYSICAL CONFEDERACY: JAMES HENLEY THORNWELL AND THE SYNTHESIS OF SOUTHERN VALUES 104-08 (1986) (discussing LeConte).
70. JASPER ADAMS, ELEMENTS OF MORAL PHILOSOPHY 28 (Cambridge MA, Folsom, Wells, and Thurston 1837) ("[T]o insure safe decisions, the mind must be kept free from prejudice and passion, and, above all, the conscience must be guided, regulated, and enlightened."). Donald Meyer has termed the movement the "instructed conscience." See D.H. MEYER, THE INSTRUCTED CONSCIENCE: THE SHAPING OF THE AMERICAN NATIONAL ETHIC (1972).
71. DEW, supra note 19, at 103.
72. See generally id.
73. Mann, 13 N.C. at 266.
74. Id.
75. Id.
76. Proslavery essayist Louisa McCord thought that law might force one to be just, "but vainly would it force him to be generous." LOUISA MCCORD, Justice and Fraternity, in POLITICAL AND SOCIAL ESSAYS, supra note 43, at 57, 61. McCord distinguished between duties imposed by morals and those imposed by law, and concluded that law could not make men moral, nor should it attempt to do so. She asked, "Can a people enjoy either moral rest, or physical prosperity, who, at the say of a legislator, may, at any hour, be called to assume such a stamp of benevolence as his whim of the moment dictates?" Id. at 63. Edward Pringle, attacking Harriet Beecher Stowe's Uncle Tom's Cabin, in the 1852 pamphlet Slavery in the Southern States, also argued for the distinction between law and morality, stating that no legislation "provide[s] altogether against those abuses which grow out of the evil passions of men." A CAROLINIAN [EDWARD PRINGLE], SLAVERY IN THE SOUTHERN STATES 12 (Cambridge, John Bartlett, 1852). The distinction between morality and law drew substantial attention in antebellum discourse. See generally THE ANTISLAVERY DEBATE: CAPITALISM AND ABOLITIONISM AS A PROBLEM IN HISTORICAL INTERPRETATION 107-60 (Thomas Bender ed., 1992).
77. The debate about the extent to which judges were "instrumental" - that is, that they shaped legal rules to promote their economic and social views - is closely related to the question whether judges employed utilitarian balancing to determine legal rules. Antebellum moral philosophy had a precarious relationship with utilitarianism. William Paley's Moral and Political Philosophy, one of the leading college texts in moral philosophy in the antebellum era, stated boldly that "it is the utility of any moral rule alone, which constitutes the obligation of it." WILLIAM PALEY, MORAL AND POLITICAL PHILOSOPHY 42 (A.J. Valpy ed., Philadelphia, Uriah Hunt & Son 1805). Paley influenced generations of American students by harmonizing Christianity, utilitarianism, and Locke's natural rights. See WILSON SMITH, PROFESSORS AND PUBLIC ETHICS: STUDIES OF NORTHERN MORAL PHILOSOPHERS BEFORE THE CIVIL WAR 49 (1956). A strong counter-current, however, opposed Paley. See id. at 61; DANIEL WALKER HOWE, THE UNITARIAN CONSCIENCE: HARVARD MORAL PHILOSOPHY, 1805-1861, at 65-67 (1970) (discussing Paley's "theological utilitarianism" and its critiquers); MARY KUPIEC CAYTON, EMERSON'S EMERGENCE: SELF AND SOCIETY IN THE TRANSFORMATION OF NEW ENGLAND, 1800-1845, at 60-62 (1989) (discussing Emerson's belief that people possessed innate sense of right and wrong). However, even those who criticized Paley for allowing morality to be governed by expediency often conceded that "the rule of expediency" had some value. See ADAMS, supra note 50, at 35. In response to the maxim "We must do our duty without shrinking, and leave the consequences to God," Adams urged that "one test, by which we are to judge of our duty, is the consequences which may probably result from our conduct." Id. at 37. Transcendentalists, who strongly rejected utilitarianism, recognized some value in such calculations. See George Ripley, James Mackintosh, in THE TRANSCENDENTALISTS: AN ANTHOLOGY 65, 65 (Perry Miller ed., 1950) ("It is evident, that there are many instances in which the utility of an action convinces us that the action is right, and that we are under a moral obligation to perform it."). The opposition to Paley proved
78. The debate about the extent to which judges were "instrumental" - that is, that they shaped legal rules to promote their economic and social views - is closely related to the question whether judges employed utilitarian balancing to determine legal rules. Antebellum moral philosophy had a precarious relationship with utilitarianism. William Paley's Moral and Political Philosophy, one of the leading college texts in moral philosophy in the antebellum era, stated boldly that "it is the utility of any moral rule alone, which constitutes the obligation of it." WILLIAM PALEY, MORAL AND POLITICAL PHILOSOPHY 42 (A.J. Valpy ed., Philadelphia, Uriah Hunt & Son 1805). Paley influenced generations of American students by harmonizing Christianity, utilitarianism, and Locke's natural rights. See WILSON SMITH, PROFESSORS AND PUBLIC ETHICS: STUDIES OF NORTHERN MORAL PHILOSOPHERS BEFORE THE CIVIL WAR 49 (1956). A strong counter-current, however, opposed Paley. See id. at 61; DANIEL WALKER HOWE, THE UNITARIAN CONSCIENCE: HARVARD MORAL PHILOSOPHY, 1805-1861, at 65-67 (1970) (discussing Paley's "theological utilitarianism" and its critiquers); MARY KUPIEC CAYTON, EMERSON'S EMERGENCE: SELF AND SOCIETY IN THE TRANSFORMATION OF NEW ENGLAND, 1800-1845, at 60-62 (1989) (discussing Emerson's belief that people possessed innate sense of right and wrong). However, even those who criticized Paley for allowing morality to be governed by expediency often conceded that "the rule of expediency" had some value. See ADAMS, supra note 50, at 35. In response to the maxim "We must do our duty without shrinking, and leave the consequences to God," Adams urged that "one test, by which we are to judge of our duty, is the consequences which may probably result from our conduct." Id. at 37. Transcendentalists, who strongly rejected utilitarianism, recognized some value in such calculations. See George Ripley, James Mackintosh, in THE TRANSCENDENTALISTS: AN ANTHOLOGY 65, 65 (Perry Miller ed., 1950) ("It is evident, that there are many instances in which the utility of an action convinces us that the action is right, and that we are under a moral obligation to perform it."). The opposition to Paley proved particularly strong among Southern moral philosophers. President R.H. Rivers of Wesleyan University in Alabama, for example, criticized Paley in the "Theoretical Ethics" portion of his Moral Philosophy treatise. R.H. RIVERS, MORAL PHILOSOPHY 128-32 (1859) (Thomas O. Summers ed., 2d ed. 1861). In his discussion of "Practical Ethics," however, Rivers justified slavery in part because "slavery has been, and still is, a blessing to the negro." Id. at 351. Rivers drew upon lectures delivered by Randolph Macon College President William Smith and invited readers to refer to Smith's Lectures. Id. at 349-51. Smith used utilitarian rationales in his justification of slavery. See, e.g., SMITH, supra note 43, at 192-209 (exploring "Necessity for the Institution of Domestic Slavery"); id. at 185 ("Political equality cannot be justly claimed for them. . . . To them it would not be an essential good, but an essential evil - a curse."). The Encyclopedia Americana acknowledged the reach of the concept of utility: "The idea of utility has even encroached upon the province of morality as if our age could not love and do good for its own sake." Utilitarians, 12 ENCYCLOPEDIA AMERICANA 490 (Francis Lieber ed., 1832). It reconciled utilitarian thought and conventional morality by observing that: "The noblest course may be the most truely useful." Id. at 491. For further discussion of utilitarianism in political thought, see infra note 107. Contrary to judges who explicitly made decisions based on instrumental or utilitarian calculations, some judges employed what we have come to call formalism - they answered legal questions by reciting legal doctrine and by inductive reasoning. See infra note 67. Yet others (most often members of the public, but occasionally judges) advocated a reliance upon humanity for guidance in determining legal rules. Such humanity might be expressed in formalist terms, as happened in In re Booth, 3 Wis. 1, 91 (1854), where the court applied its own moral sense despite contrary United States Supreme Court precedent. See also UNCLE TOM'S CABIN, supra note 2, at 101, 108 (describing how Mrs. Byrd argued in favor of helping fugitive Eliza because she just knew it was right). Or, it might be an argument articulated by a judge as part of a search for the right rule to apply.
79. The debate about the extent to which judges were "instrumental" - that is, that they shaped legal rules to promote their economic and social views - is closely related to the question whether judges employed utilitarian balancing to determine legal rules. Antebellum moral philosophy had a precarious relationship with utilitarianism. William Paley's Moral and Political Philosophy, one of the leading college texts in moral philosophy in the antebellum era, stated boldly that "it is the utility of any moral rule alone, which constitutes the obligation of it." WILLIAM PALEY, MORAL AND POLITICAL PHILOSOPHY 42 (A.J. Valpy ed., Philadelphia, Uriah Hunt & Son 1805). Paley influenced generations of American students by harmonizing Christianity, utilitarianism, and Locke's natural rights. See WILSON SMITH, PROFESSORS AND PUBLIC ETHICS: STUDIES OF NORTHERN MORAL PHILOSOPHERS BEFORE THE CIVIL WAR 49 (1956). A strong counter-current, however, opposed Paley. See id. at 61; DANIEL WALKER HOWE, THE UNITARIAN CONSCIENCE: HARVARD MORAL PHILOSOPHY, 1805-1861, at 65-67 (1970) (discussing Paley's "theological utilitarianism" and its critiquers); MARY KUPIEC CAYTON, EMERSON'S EMERGENCE: SELF AND SOCIETY IN THE TRANSFORMATION OF NEW ENGLAND, 1800-1845, at 60-62 (1989) (discussing Emerson's belief that people possessed innate sense of right and wrong). However, even those who criticized Paley for allowing morality to be governed by expediency often conceded that "the rule of expediency" had some value. See ADAMS, supra note 50, at 35. In response to the maxim "We must do our duty without shrinking, and leave the consequences to God," Adams urged that "one test, by which we are to judge of our duty, is the consequences which may probably result from our conduct." Id. at 37. Transcendentalists, who strongly rejected utilitarianism, recognized some value in such calculations. See George Ripley, James Mackintosh, in THE TRANSCENDENTALISTS: AN ANTHOLOGY 65, 65 (Perry Miller ed., 1950) ("It is evident, that there are many instances in which the utility of an action convinces us that the action is right, and that we are under a moral obligation to perform it."). The opposition to Paley proved particularly strong among Southern moral philosophers. President R.H. Rivers of Wesleyan University in Alabama, for example, criticized Paley in the "Theoretical Ethics" portion of his Moral Philosophy treatise. R.H. RIVERS, MORAL PHILOSOPHY 128-32 (1859) (Thomas O. Summers ed., 2d ed. 1861). In his discussion of "Practical Ethics," however, Rivers justified slavery in part because "slavery has been, and still is, a blessing to the negro." Id. at 351. Rivers drew upon lectures delivered by Randolph Macon College President William Smith and invited readers to refer to Smith's Lectures. Id. at 349-51. Smith used utilitarian rationales in his justification of slavery. See, e.g., SMITH, supra note 43, at 192-209 (exploring "Necessity for the Institution of Domestic Slavery"); id. at 185 ("Political equality cannot be justly claimed for them. . . . To them it would not be an essential good, but an essential evil - a curse."). The Encyclopedia Americana acknowledged the reach of the concept of utility: "The idea of utility has even encroached upon the province of morality as if our age could not love and do good for its own sake." Utilitarians, 12 ENCYCLOPEDIA AMERICANA 490 (Francis Lieber ed., 1832). It reconciled utilitarian thought and conventional morality by observing that: "The noblest course may be the most truely useful." Id. at 491. For further discussion of utilitarianism in political thought, see infra note 107. Contrary to judges who explicitly made decisions based on instrumental or utilitarian calculations, some judges employed what we have come to call formalism - they answered legal questions by reciting legal doctrine and by inductive reasoning. See infra note 67. Yet others (most often members of the public, but occasionally judges) advocated a reliance upon humanity for guidance in determining legal rules. Such humanity might be expressed in formalist terms, as happened in In re Booth, 3 Wis. 1, 91 (1854), where the court applied its own moral sense despite contrary United States Supreme Court precedent. See also UNCLE TOM'S CABIN, supra note 2, at 101, 108 (describing how Mrs. Byrd argued in favor of helping fugitive Eliza because she just knew it was right). Or, it might be an argument articulated by a judge as part of a search for the right rule to apply.
80. The debate about the extent to which judges were "instrumental" - that is, that they shaped legal rules to promote their economic and social views - is closely related to the question whether judges employed utilitarian balancing to determine legal rules. Antebellum moral philosophy had a precarious relationship with utilitarianism. William Paley's Moral and Political Philosophy, one of the leading college texts in moral philosophy in the antebellum era, stated boldly that "it is the utility of any moral rule alone, which constitutes the obligation of it." WILLIAM PALEY, MORAL AND POLITICAL PHILOSOPHY 42 (A.J. Valpy ed., Philadelphia, Uriah Hunt & Son 1805). Paley influenced generations of American students by harmonizing Christianity, utilitarianism, and Locke's natural rights. See WILSON SMITH, PROFESSORS AND PUBLIC ETHICS: STUDIES OF NORTHERN MORAL PHILOSOPHERS BEFORE THE CIVIL WAR 49 (1956). A strong counter-current, however, opposed Paley. See id. at 61; DANIEL WALKER HOWE, THE UNITARIAN CONSCIENCE: HARVARD MORAL PHILOSOPHY, 1805-1861, at 65-67 (1970) (discussing Paley's "theological utilitarianism" and its critiquers); MARY KUPIEC CAYTON, EMERSON'S EMERGENCE: SELF AND SOCIETY IN THE TRANSFORMATION OF NEW ENGLAND, 1800-1845, at 60-62 (1989) (discussing Emerson's belief that people possessed innate sense of right and wrong). However, even those who criticized Paley for allowing morality to be governed by expediency often conceded that "the rule of expediency" had some value. See ADAMS, supra note 50, at 35. In response to the maxim "We must do our duty without shrinking, and leave the consequences to God," Adams urged that "one test, by which we are to judge of our duty, is the consequences which may probably result from our conduct." Id. at 37. Transcendentalists, who strongly rejected utilitarianism, recognized some value in such calculations. See George Ripley, James Mackintosh, in THE TRANSCENDENTALISTS: AN ANTHOLOGY 65, 65 (Perry Miller ed., 1950) ("It is evident, that there are many instances in which the utility of an action convinces us that the action is right, and that we are under a moral obligation to perform it."). The opposition to Paley proved particularly strong among Southern moral philosophers. President R.H. Rivers of Wesleyan University in Alabama, for example, criticized Paley in the "Theoretical Ethics" portion of his Moral Philosophy treatise. R.H. RIVERS, MORAL PHILOSOPHY 128-32 (1859) (Thomas O. Summers ed., 2d ed. 1861). In his discussion of "Practical Ethics," however, Rivers justified slavery in part because "slavery has been, and still is, a blessing to the negro." Id. at 351. Rivers drew upon lectures delivered by Randolph Macon College President William Smith and invited readers to refer to Smith's Lectures. Id. at 349-51. Smith used utilitarian rationales in his justification of slavery. See, e.g., SMITH, supra note 43, at 192-209 (exploring "Necessity for the Institution of Domestic Slavery"); id. at 185 ("Political equality cannot be justly claimed for them. . . . To them it would not be an essential good, but an essential evil - a curse."). The Encyclopedia Americana acknowledged the reach of the concept of utility: "The idea of utility has even encroached upon the province of morality as if our age could not love and do good for its own sake." Utilitarians, 12 ENCYCLOPEDIA AMERICANA 490 (Francis Lieber ed., 1832). It reconciled utilitarian thought and conventional morality by observing that: "The noblest course may be the most truely useful." Id. at 491. For further discussion of utilitarianism in political thought, see infra note 107. Contrary to judges who explicitly made decisions based on instrumental or utilitarian calculations, some judges employed what we have come to call formalism - they answered legal questions by reciting legal doctrine and by inductive reasoning. See infra note 67. Yet others (most often members of the public, but occasionally judges) advocated a reliance upon humanity for guidance in determining legal rules. Such humanity might be expressed in formalist terms, as happened in In re Booth, 3 Wis. 1, 91 (1854), where the court applied its own moral sense despite contrary United States Supreme Court precedent. See also UNCLE TOM'S CABIN, supra note 2, at 101, 108 (describing how Mrs. Byrd argued in favor of helping fugitive Eliza because she just knew it was right). Or, it might be an argument articulated by a judge as part of a search for the right rule to apply.
81. The debate about the extent to which judges were "instrumental" - that is, that they shaped legal rules to promote their economic and social views - is closely related to the question whether judges employed utilitarian balancing to determine legal rules. Antebellum moral philosophy had a precarious relationship with utilitarianism. William Paley's Moral and Political Philosophy, one of the leading college texts in moral philosophy in the antebellum era, stated boldly that "it is the utility of any moral rule alone, which constitutes the obligation of it." WILLIAM PALEY, MORAL AND POLITICAL PHILOSOPHY 42 (A.J. Valpy ed., Philadelphia, Uriah Hunt & Son 1805). Paley influenced generations of American students by harmonizing Christianity, utilitarianism, and Locke's natural rights. See WILSON SMITH, PROFESSORS AND PUBLIC ETHICS: STUDIES OF NORTHERN MORAL PHILOSOPHERS BEFORE THE CIVIL WAR 49 (1956). A strong counter-current, however, opposed Paley. See id. at 61; DANIEL WALKER HOWE, THE UNITARIAN CONSCIENCE: HARVARD MORAL PHILOSOPHY, 1805-1861, at 65-67 (1970) (discussing Paley's "theological utilitarianism" and its critiquers); MARY KUPIEC CAYTON, EMERSON'S EMERGENCE: SELF AND SOCIETY IN THE TRANSFORMATION OF NEW ENGLAND, 1800-1845, at 60-62 (1989) (discussing Emerson's belief that people possessed innate sense of right and wrong). However, even those who criticized Paley for allowing morality to be governed by expediency often conceded that "the rule of expediency" had some value. See ADAMS, supra note 50, at 35. In response to the maxim "We must do our duty without shrinking, and leave the consequences to God," Adams urged that "one test, by which we are to judge of our duty, is the consequences which may probably result from our conduct." Id. at 37. Transcendentalists, who strongly rejected utilitarianism, recognized some value in such calculations. See George Ripley, James Mackintosh, in THE TRANSCENDENTALISTS: AN ANTHOLOGY 65, 65 (Perry Miller ed., 1950) ("It is evident, that there are many instances in which the utility of an action convinces us that the action is right, and that we are under a moral obligation to perform it."). The opposition to Paley proved particularly strong among Southern moral philosophers. President R.H. Rivers of Wesleyan University in Alabama, for example, criticized Paley in the "Theoretical Ethics" portion of his Moral Philosophy treatise. R.H. RIVERS, MORAL PHILOSOPHY 128-32 (1859) (Thomas O. Summers ed., 2d ed. 1861). In his discussion of "Practical Ethics," however, Rivers justified slavery in part because "slavery has been, and still is, a blessing to the negro." Id. at 351. Rivers drew upon lectures delivered by Randolph Macon College President William Smith and invited readers to refer to Smith's Lectures. Id. at 349-51. Smith used utilitarian rationales in his justification of slavery. See, e.g., SMITH, supra note 43, at 192-209 (exploring "Necessity for the Institution of Domestic Slavery"); id. at 185 ("Political equality cannot be justly claimed for them. . . . To them it would not be an essential good, but an essential evil - a curse."). The Encyclopedia Americana acknowledged the reach of the concept of utility: "The idea of utility has even encroached upon the province of morality as if our age could not love and do good for its own sake." Utilitarians, 12 ENCYCLOPEDIA AMERICANA 490 (Francis Lieber ed., 1832). It reconciled utilitarian thought and conventional morality by observing that: "The noblest course may be the most truely useful." Id. at 491. For further discussion of utilitarianism in political thought, see infra note 107. Contrary to judges who explicitly made decisions based on instrumental or utilitarian calculations, some judges employed what we have come to call formalism - they answered legal questions by reciting legal doctrine and by inductive reasoning. See infra note 67. Yet others (most often members of the public, but occasionally judges) advocated a reliance upon humanity for guidance in determining legal rules. Such humanity might be expressed in formalist terms, as happened in In re Booth, 3 Wis. 1, 91 (1854), where the court applied its own moral sense despite contrary United States Supreme Court precedent. See also UNCLE TOM'S CABIN, supra note 2, at 101, 108 (describing how Mrs. Byrd argued in favor of helping fugitive Eliza because she just knew it was right). Or, it might be an argument articulated by a judge as part of a search for the right rule to apply.
82. The debate about the extent to which judges were "instrumental" - that is, that they shaped legal rules to promote their economic and social views - is closely related to the question whether judges employed utilitarian balancing to determine legal rules. Antebellum moral philosophy had a precarious relationship with utilitarianism. William Paley's Moral and Political Philosophy, one of the leading college texts in moral philosophy in the antebellum era, stated boldly that "it is the utility of any moral rule alone, which constitutes the obligation of it." WILLIAM PALEY, MORAL AND POLITICAL PHILOSOPHY 42 (A.J. Valpy ed., Philadelphia, Uriah Hunt & Son 1805). Paley influenced generations of American students by harmonizing Christianity, utilitarianism, and Locke's natural rights. See WILSON SMITH, PROFESSORS AND PUBLIC ETHICS: STUDIES OF NORTHERN MORAL PHILOSOPHERS BEFORE THE CIVIL WAR 49 (1956). A strong counter-current, however, opposed Paley. See id. at 61; DANIEL WALKER HOWE, THE UNITARIAN CONSCIENCE: HARVARD MORAL PHILOSOPHY, 1805-1861, at 65-67 (1970) (discussing Paley's "theological utilitarianism" and its critiquers); MARY KUPIEC CAYTON, EMERSON'S EMERGENCE: SELF AND SOCIETY IN THE TRANSFORMATION OF NEW ENGLAND, 1800-1845, at 60-62 (1989) (discussing Emerson's belief that people possessed innate sense of right and wrong). However, even those who criticized Paley for allowing morality to be governed by expediency often conceded that "the rule of expediency" had some value. See ADAMS, supra note 50, at 35. In response to the maxim "We must do our duty without shrinking, and leave the consequences to God," Adams urged that "one test, by which we are to judge of our duty, is the consequences which may probably result from our conduct." Id. at 37. Transcendentalists, who strongly rejected utilitarianism, recognized some value in such calculations. See George Ripley, James Mackintosh, in THE TRANSCENDENTALISTS: AN ANTHOLOGY 65, 65 (Perry Miller ed., 1950) ("It is evident, that there are many instances in which the utility of an action convinces us that the action is right, and that we are under a moral obligation to perform it."). The opposition to Paley proved particularly strong among Southern moral philosophers. President R.H. Rivers of Wesleyan University in Alabama, for example, criticized Paley in the "Theoretical Ethics" portion of his Moral Philosophy treatise. R.H. RIVERS, MORAL PHILOSOPHY 128-32 (1859) (Thomas O. Summers ed., 2d ed. 1861). In his discussion of "Practical Ethics," however, Rivers justified slavery in part because "slavery has been, and still is, a blessing to the negro." Id. at 351. Rivers drew upon lectures delivered by Randolph Macon College President William Smith and invited readers to refer to Smith's Lectures. Id. at 349-51. Smith used utilitarian rationales in his justification of slavery. See, e.g., SMITH, supra note 43, at 192-209 (exploring "Necessity for the Institution of Domestic Slavery"); id. at 185 ("Political equality cannot be justly claimed for them. . . . To them it would not be an essential good, but an essential evil - a curse."). The Encyclopedia Americana acknowledged the reach of the concept of utility: "The idea of utility has even encroached upon the province of morality as if our age could not love and do good for its own sake." Utilitarians, 12 ENCYCLOPEDIA AMERICANA 490 (Francis Lieber ed., 1832). It reconciled utilitarian thought and conventional morality by observing that: "The noblest course may be the most truely useful." Id. at 491. For further discussion of utilitarianism in political thought, see infra note 107. Contrary to judges who explicitly made decisions based on instrumental or utilitarian calculations, some judges employed what we have come to call formalism - they answered legal questions by reciting legal doctrine and by inductive reasoning. See infra note 67. Yet others (most often members of the public, but occasionally judges) advocated a reliance upon humanity for guidance in determining legal rules. Such humanity might be expressed in formalist terms, as happened in In re Booth, 3 Wis. 1, 91 (1854), where the court applied its own moral sense despite contrary United States Supreme Court precedent. See also UNCLE TOM'S CABIN, supra note 2, at 101, 108 (describing how Mrs. Byrd argued in favor of helping fugitive Eliza because she just knew it was right). Or, it might be an argument articulated by a judge as part of a search for the right rule to apply.
83. Mann, 13 N.C. at 266-67.
84. See, e.g., Mitchell v. Wells, 37 Miss. 235 (1859) (interpreting Mississippi emancipation law in light of state policy). Chancellor Kent celebrated the origins of common law rules in the community: A great proportion of the rules and maxims which constitute the immense code of the common law grew into use by gradual adoption, and received, from time to time, the sanction of the courts of justice, without any legislative act or interference. It was the application of the dictates of natural justice, and of cultivated reason, to particular cases. 1 KENT, supra note 44, at 441-42. Presbyterian minister John Yeomans urged support for law over individual conscience in an 1850 Thanksgiving Day sermon. See REV. JOHN W. YEOMAN, SIGNS OF OUR COUNTRY'S FUTURE 25-26 (Danville, Pa., E.W. Conkling 1851). Law should be followed, for the "influence of . . . intelligent and conscientious neighbors" tended to produce the correct decision. Id. Such was the principle motivating the "professional deference which we observe in all wise judges of the law for legal decisions of the past." Id. It might be improper, however, to allow the community's sentiment to dictate the immediate response to an offensive law, such as the Fugitive Slave Act, 9 Stat. 462 (1850); instead, the sentiment should be channeled into political campaigns. William Greene explained in an 1851 lecture at Brown that: [If lawmakers] enact a law in opposition to the public sentiment, there are two ways of meeting the difficulty: first, by direct resistance to the law; and, second, by patiently awaiting its repeal, by the election to power of a new and more faithful set of men. The first is rebellion, which in resisting one law, violates all. The second, in due time, breaks up the law and maintains the government. WILLIAM GREENE, SOME OF THE DIFFICULTIES IN THE ADMINISTRATION OF A FREE GOVERNMENT: A DISCOURSE, PRONOUNCED BEFORE THE RHODE ISLAND ALPHA OF PHI BETA KAPPA 22 (Providence, John F. Moore 1851).
85. See Mann, 13 N.C. at 267.
86. Ruffin looked to the consequences of his decision to gauge the appropriateness of the rule he was announcing in other cases as well. In State v. Caesar, 31 N.C. (9 Ired.) 391, 427-28 (1849), he dissented from the reduction of a slave's conviction for murder of a white to manslaughter on the grounds that the slave was provoked. Ruffin wrote: It seems to me to be dangerous to the last degree to hold the doctrine, that negro slaves may assume to themselves the judgment as to the right or propriety of resistance . . . . It may be apprehended that they will end in denouncing the injustice of slavery itself, and, upon that pretext, band together to throw off their common bondage entirely. Id. In State v. Samuel, 19 N.C. (2 Dev. & Bat.) 177 (1836), Ruffin addressed the question whether a couple, who were slaves, were married. See id. The issue arose because the wife sought immunity from testifying against her husband. See id. He analyzed the consequences of construing the couple as married and decided that although it would be beneficial to the wife in this case, it might subject others to prosecution for bigamy. See id. at 179. He was not prepared "without a mandate from a higher authority than our own, to apply . . . a rule, which would in innumerable instances, either subject them to legal criminality of a high grade, or deprive them almost entirely of their greatest solace -having families of their own." Id. at 183.
87. The word "imperative" is frequently used in antebellum law to describe the sense of compulsion that judges felt in making decisions. See, e.g., Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 624-25 (1842) (Story, J.) ("Consequences like these show that the nature and object of the provision imperiously require, that, to make it effectual, it should be construed to be exclusive of state authority."); Cherokee Nation v. Georgia, 30 U.S. 1, 48 (1831) (Marshall, J.) ("I have no duty to act and imperious duty compels me to stop at the portal."); Shorter v. Smith, 9 Ga. 517, 532 (1851) (Lumpkin, J.) ("Were there any imperative rule of law . . . I would bow to it; for . . . I feel already the responsibility sufficiently great, of expounding laws, without increasing it by making them."); Wright v. Weatherly, 15 Tenn. (7 Yer.) 367, 380 (1835) ("Such a provision would be fair and equal among the slaveholders themselves; and in relation to a large majority of the people of the state, who do not own slaves, it is imperiously required."). A variant of imperious often appeared in popular literature and legislative debate as well. See, e.g., KENNEDY, supra note 19, at 333 ("[C]ustom, in these innovating times, almost imperatively exacts" a response); PROCEEDINGS, supra note 48, at 76 ("[O]ur property imperiously demands that kind of protection which flows from the possession of power."); id. at 255 ("The county never could be tranquilized so long as the people see that we have no confidence in our own measures - measures of so high a character imperiously to demand both our own confidence and theirs.").
88. 4 THE PAPERS OF THOMAS RUFFIN 249 (J.G. de Roulhac Hamilton ed., 1918).
89. Mann, 13 N.C. at 267.
90. Id.
91. Id. at 268.
92. Formalism emerged, according to Professor Horwitz, as part of the search for "certainty and logical inexorability." MORION J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW: THE CRISIS OF ORTHODOXY, 1870-1960, at 16 (1992). "In a world of conflicting ends, it aspired to create a system of processes and principles that could be shared even in the absence of agreed-upon ends." Id. Its characteristics, as defined by Professor Horwitz, included deduction from general principles and confident analogies to cases and doctrines. See id. Thomas Grey has created a detailed taxonomy of legal thinking after the Civil War, which he calls orthodox legal thought, in which formalism occupies an important place. See Thomas Grey, Langdell's Orthodoxy, 45 U. PITT. L. REV. 1 (1983). Orthodox thought began with the idea that law is a science, and thereby sought to construct a complete response to all legal questions. See id. at 8. It did this through "formalism," which for Grey meant that "outcomes are dictated by demonstrative (rationally compelling) reasoning." Id. For Grey, "'Formalism' describes legal theories that stress the importance of rationally uncontrovertible reasoning in legal decisions, whether from highly particular rules or quite abstract principles." Id. at 9.
93. Formalism emerged, according to Professor Horwitz, as part of the search for "certainty and logical inexorability." MORION J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW: THE CRISIS OF ORTHODOXY, 1870-1960, at 16 (1992). "In a world of conflicting ends, it aspired to create a system of processes and principles that could be shared even in the absence of agreed-upon ends." Id. Its characteristics, as defined by Professor Horwitz, included deduction from general principles and confident analogies to cases and doctrines. See id. Thomas Grey has created a detailed taxonomy of legal thinking after the Civil War, which he calls orthodox legal thought, in which formalism occupies an important place. See Thomas Grey, Langdell's Orthodoxy, 45 U. PITT. L. REV. 1 (1983). Orthodox thought began with the idea that law is a science, and thereby sought to construct a complete response to all legal questions. See id. at 8. It did this through "formalism," which for Grey meant that "outcomes are dictated by demonstrative (rationally compelling) reasoning." Id. For Grey, "'Formalism' describes legal theories that stress the importance of rationally uncontrovertible reasoning in legal decisions, whether from highly particular rules or quite abstract principles." Id. at 9.
94. Ruffin commented on his limited authority to change the common law in State v. Ephraim, 19 N.C. (2 Dev. & Bat.) 162, 166-67 (1836): It is . . . a bold and hazardous assumption in judges, to change and upset settled law, under the pretext that it was adopted in a state of society to which it was suitable, but that circumstances have now so varied, and the opinions of mankind so changed, that the rule has become inconvenient and unsuitable, and ought therefore to be altered. Id. at 166. Ephraim represents a version of legal formalism - a stark application of precedent and a refusal by a judge to alter the law, even in the face of arguments that society surrounding the law has changed.
95. Mann, 13 N.C. at 263.
96. KEY, supra note 4, at 77. See also Mann, 13 N.C. at 263.
97. See PHILIP FISHER, HARD FACTS: SETTING AND FORM IN THE AMERICAN NOVEL 92 (1985) (characterizing sentimentality as "the primary radical methodology within culture"); STOWE, UNCLE TOM'S CABIN, supra note 2, at 513-15 (appealing to the "public sentiment" of Southern readers, and urging readers to "see to [their] sympathies in this matter").
98. STOWE, UNCLE TOM'S CABIN, supra note 2, at 470.
99. See HOWE, supra note 57, at 43-53.
100. See, e.g., STOWE UNCLE TOM'S CABIN, supra note 2, at 513 (attributing her motivation for writing the novel to the belief that "Christians cannot know what slavery is; if they did such a question could never be open for discussion"). Elizabeth Clark has shown how the turn to sympathy in American thought was harnessed by religious reformers to change peoples' attitudes. See Clark, supra note 10. Stowe's contemporaries recognized the radical potential of fiction. See. e.g., Catherine Beecher, Preface to HARRIET BEECHER STOWE, THE MAYFLOWER xii (Boston, Harper & Bros. 1844) ("Works of imagination might be made the most powerful of all human agencies in promoting virtue and religion."); George Frederick Holmes, Review of Uncle Tom's Cabin, 18 S. LITERARY MESSENGER 721, 724 (1852) ("The potency of literature, in this age of the world, when it embraces all manifestations of public or individual thought and feeling, and permeates, in streams, more or less diluted, all classes of society, can scarcely by misapprehended."). In an address at Bowdoin College, Joseph R. Ingersoll stated that: The literature of a nation is calculated especially to affect its moral tone and habits Let literature and science . . . exhibit systems of elevated morality and sound practical knowledge . . . and they will purify the streams of public sentiment at their very source, give aim and direction to the employments of mankind, and restrain the first inclinations and efforts towards evil. JOSEPH R. INGERSOLL, AN ADDRESS DELIVERED BEFORE THE PHI BETA KAPPA SOCIETY, ALPHA OF MAINE IN BOWDOIN COLLEGE 23-24 (Brunswick, ME, 1837). The magical power of literature, however, might be used to support as well as attack slavery. See, e.g. WILLIAM GILMORE SIMMS, WOODCRAFT; OR, HAWKS ABOUT THE DOVECOAT, A STORY OF THE SOUTH AT THE CLOSE OF THE REVOLUTION (New York, Redfield 1854) (portraying Southern plantations in sentimental terms).
101. See, e.g., STOWE UNCLE TOM'S CABIN, supra note 2, at 513 (attributing her motivation for writing the novel to the belief that "Christians cannot know what slavery is; if they did such a question could never be open for discussion"). Elizabeth Clark has shown how the turn to sympathy in American thought was harnessed by religious reformers to change peoples' attitudes. See Clark, supra note 10. Stowe's contemporaries recognized the radical potential of fiction. See. e.g., Catherine Beecher, Preface to HARRIET BEECHER STOWE, THE MAYFLOWER xii (Boston, Harper & Bros. 1844) ("Works of imagination might be made the most powerful of all human agencies in promoting virtue and religion."); George Frederick Holmes, Review of Uncle Tom's Cabin, 18 S. LITERARY MESSENGER 721, 724 (1852) ("The potency of literature, in this age of the world, when it embraces all manifestations of public or individual thought and feeling, and permeates, in streams, more or less diluted, all classes of society, can scarcely by misapprehended."). In an address at Bowdoin College, Joseph R. Ingersoll stated that: The literature of a nation is calculated especially to affect its moral tone and habits Let literature and science . . . exhibit systems of elevated morality and sound practical knowledge . . . and they will purify the streams of public sentiment at their very source, give aim and direction to the employments of mankind, and restrain the first inclinations and efforts towards evil. JOSEPH R. INGERSOLL, AN ADDRESS DELIVERED BEFORE THE PHI BETA KAPPA SOCIETY, ALPHA OF MAINE IN BOWDOIN COLLEGE 23-24 (Brunswick, ME, 1837). The magical power of literature, however, might be used to support as well as attack slavery. See, e.g. WILLIAM GILMORE SIMMS, WOODCRAFT; OR, HAWKS ABOUT THE DOVECOAT, A STORY OF THE SOUTH AT THE CLOSE OF THE REVOLUTION (New York, Redfield 1854) (portraying Southern plantations in sentimental terms).
102. See, e.g., STOWE UNCLE TOM'S CABIN, supra note 2, at 513 (attributing her motivation for writing the novel to the belief that "Christians cannot know what slavery is; if they did such a question could never be open for discussion"). Elizabeth Clark has shown how the turn to sympathy in American thought was harnessed by religious reformers to change peoples' attitudes. See Clark, supra note 10. Stowe's contemporaries recognized the radical potential of fiction. See. e.g., Catherine Beecher, Preface to HARRIET BEECHER STOWE, THE MAYFLOWER xii (Boston, Harper & Bros. 1844) ("Works of imagination might be made the most powerful of all human agencies in promoting virtue and religion."); George Frederick Holmes, Review of Uncle Tom's Cabin, 18 S. LITERARY MESSENGER 721, 724 (1852) ("The potency of literature, in this age of the world, when it embraces all manifestations of public or individual thought and feeling, and permeates, in streams, more or less diluted, all classes of society, can scarcely by misapprehended."). In an address at Bowdoin College, Joseph R. Ingersoll stated that: The literature of a nation is calculated especially to affect its moral tone and habits Let literature and science . . . exhibit systems of elevated morality and sound practical knowledge . . . and they will purify the streams of public sentiment at their very source, give aim and direction to the employments of mankind, and restrain the first inclinations and efforts towards evil. JOSEPH R. INGERSOLL, AN ADDRESS DELIVERED BEFORE THE PHI BETA KAPPA SOCIETY, ALPHA OF MAINE IN BOWDOIN COLLEGE 23-24 (Brunswick, ME, 1837). The magical power of literature, however, might be used to support as well as attack slavery. See, e.g. WILLIAM GILMORE SIMMS, WOODCRAFT; OR, HAWKS ABOUT THE DOVECOAT, A STORY OF THE SOUTH AT THE CLOSE OF THE REVOLUTION (New York, Redfield 1854) (portraying Southern plantations in sentimental terms).
103. See, e.g., STOWE UNCLE TOM'S CABIN, supra note 2, at 513 (attributing her motivation for writing the novel to the belief that "Christians cannot know what slavery is; if they did such a question could never be open for discussion"). Elizabeth Clark has shown how the turn to sympathy in American thought was harnessed by religious reformers to change peoples' attitudes. See Clark, supra note 10. Stowe's contemporaries recognized the radical potential of fiction. See. e.g., Catherine Beecher, Preface to HARRIET BEECHER STOWE, THE MAYFLOWER xii (Boston, Harper & Bros. 1844) ("Works of imagination might be made the most powerful of all human agencies in promoting virtue and religion."); George Frederick Holmes, Review of Uncle Tom's Cabin, 18 S. LITERARY MESSENGER 721, 724 (1852) ("The potency of literature, in this age of the world, when it embraces all manifestations of public or individual thought and feeling, and permeates, in streams, more or less diluted, all classes of society, can scarcely by misapprehended."). In an address at Bowdoin College, Joseph R. Ingersoll stated that: The literature of a nation is calculated especially to affect its moral tone and habits Let literature and science . . . exhibit systems of elevated morality and sound practical knowledge . . . and they will purify the streams of public sentiment at their very source, give aim and direction to the employments of mankind, and restrain the first inclinations and efforts towards evil. JOSEPH R. INGERSOLL, AN ADDRESS DELIVERED BEFORE THE PHI BETA KAPPA SOCIETY, ALPHA OF MAINE IN BOWDOIN COLLEGE 23-24 (Brunswick, ME, 1837). The magical power of literature, however, might be used to support as well as attack slavery. See, e.g. WILLIAM GILMORE SIMMS, WOODCRAFT; OR, HAWKS ABOUT THE DOVECOAT, A STORY OF THE SOUTH AT THE CLOSE OF THE REVOLUTION (New York, Redfield 1854) (portraying Southern plantations in sentimental terms).
104. See LIFE AND LETTERS OF HARRIET BEECHER STOWE 58 (Annie Fields ed., New York, Houghton, Mifflin and Co. 1897). See also id. at 135 (praising Stowe's father for sermons that conveyed the slaves' anguish); id. at 137 (stating that following publication of Uncle Tom's Cabin, Stowe believed that "the hearts of good men were hot with desire to achieve" the end of slavery). See generally MILLER, supra note 15, at 105 (contrasting the evangelical mind and the legal mind and characterizing the contrast as a dispute between the "heart and head").
105. Letter of George Sand, Nov. 15, 1852, in LIFE AND LETTERS, supra note 75, at 154. See also id. at 152 (stating that the efforts of Senator Byrd, who voted for a Fugitive Slave Act, to aid fugitive Eliza "paints well the situation of most men placed between their prejudices and established modes of thought and the spontaneous and generous intuitions of their hearts").
106. 1 DRED, supra note 1, at 264. The imagery of cool and hot pervaded antebellum writings. In response to Senator Charles Sumner's Speech on Kansas, which led to his caning by Preston Brooks, the South Side Democrat observed that "no punishment is adequate to a proper restraint of his insolence, but a deliberate, cool, dignified, and classical caning." Book Review, 101 Q. Rev. 324, 325 (1857) (reviewing NASSAU WILLIAM, AMERICAN SLAVERY (1856)).
107. KEY, supra note 4, at 71.
108. Id.
109. Id. at 82.
110. Id. at 98.
111. Id. at 99.
112. KEY, supra note 4, at 99.
113. Id. at 106.
114. Id. at 79.
115. Id. at 71.
116. Id.
117. KEY, supra note 4, at 77. Ruffin accepted his role as a judge as that role was widely perceived in the antebellum era - that judges should not interpose their conscience, but must decide according to an abstract concept of the law. That reasoning process, a mixture of utilitarian logic and reasoning by analogy from precedent, is what Stowe identified as the cold, scientific logic of the law. For example, in the Key Stowe identified proslavery law as "a crystallization of every teardrop of blood which can be collected from humanity, so accurately, elegantly, scientifically arranged." Id. at 82. Decisions like Ruffin's "show nothing so much as this severe, unflinching accuracy of logic." Id. They are the product of "the logical necessity of a strict interpreter of slave law." Id. at 77.
118. KEY, supra note 4, at 78-79.
119. Id. at 71.
120. Id. at 82.
121. WILLIAM A. GRAHAM, LIFE AND CHARACTER OF THE HON. THOMAS RUFFIN (1871), reprinted in 1 THE PAPERS OF THOMAS RUFFIN, supra note 63, at 17, 28. Ruffin explained during controversy over the appointment of William Gaston to the North Carolina Supreme Court the qualities a judge should possess. They included, "the calmness of dispassionate deliberation and unbiased decision upon the great questions which involve the liberties and rights of our fellowmen." 2 Id. at 92 n. 1. See also id. at 29 (praising sparse, vigorous prose and Ruffin's powers of abstraction); id. at 388 (urging son to study algebra because "it teaches the art of pure reasoning and induction, with the least possible connection with sensible objects"). On the multifaceted connections between mathematics and law, see Hoeflich, supra note 14, at 95-121. But see Howard Schwerber, The "Science" in Legl Science: Nineteenth Century American Legal Education and the Natural Sciences (paper delivered at American Society for Legal History Conference, October, 1997) (interpreting references to legal science as referring to a prevalent antebellum idea of scientific method rather than principles of deductive logic).
122. KEY, supra note 4, at 79. Stowe reported that on a trip to England, Lord Chief Baron Jonathan Frederick Pollack of the Court of Exchequer, "remarked especially on the opinion of Judge Ruffin, in the case of State v. Mann, as having made a deep impression on his mind. . . . The talent and force displayed in it, as well as the high spirit and scorn of dissimulation, appear to have created a strong interest in the author." HARRIET BEECHERSTOWE, 1 SUNNY MEMORIES OF FOREIGN LANDS 260-61 (Boston, Phillips, Sampson, and Co. 1896) (1854). Historians also have focused upon Mann. Both Eugene Genovese and Stanley Elkins used it to demonstrate the control that masters had over their slaves. See STANLEY ELKINS, SLAVERY: A PROBLEM IN AMERICAN INSTITUTIONAL AND INTELLECTUAL LIFE 37-52 (1959); EUGENE GENOVESE, ROLL, JORDAN, ROLL: THE WORLD THE SLAVES MADE 35-36 (1974). Mark Tushnet has viewed Mann as relegating the control over slaves to the sphere of sentiment. See MARK TUSHNET, THE AMERICAN LAW OF SLAVERY, 1800-1860, at 54-65 (1981). Tushnet's interpretation of the role of sentiment in slave law parallels the one advanced by antebellum Southerners who emphasized the importance of slaveholders' humanity as a restraint on masters. See generally PRINGLE, supra note 56, at 12, 24 (focusing on human nature rather than legislation to ensure that slaves are treated well). Stowe, however, directed attention to the conflict between the inhumanity of the rule and the issuer of the rule, a different aspect of the opinion.
123. See JOHN T. NOONAN, JR., PERSONS AND MASKS OF THE LAW: CARDOZO, HOLMES, JEFFERSON, AND WYTHE AS MAKERS OF THE MASKS (1976) (employing the image of masks).
124. See 1 DRED, supra note 1, at xiv.
125. Id. at 26.
126. Id.
127. Id.
128. Id.
129. See 1 DRED, supra note 1, at 439.
130. Id. at 438.
131. Id.
132. Id. at 440.
133. See generally COVER, supra note 6, at 131-48; HORWITZ, supra note 6, at 256-64; G. EDWARD WHITE, THE AMERICAN JUDICIAL TRADITION (2nd ed. 1988); R. Kent Newmyer, Harvard Law School, New England Legal Culture, and the Antebellum Origins of America, 74 J. AM. HIST. 154 (1987); Alfred Konefsky, Law and Culture in Antebellum Boston, 40 STAN. L. REV. 1119, 1132-41 (1988) (book review).
134. 2 THE LIFE AND LETTERS OF JOSEPH STORY 431 (William W. Story ed., Boston, Charles C. Little and James Brown 1851).
135. See R. KENT NEWMYER, SUPREME COURT JUSTICE JOSEPH STORY: STATESMAN OF THE OLD REPUBLIC 376-77 (1985) (suggesting that Story's decision was not as strongly anti-slavery as many have portrayed it); Paul Finkelman, Story Telling on the Supreme Court: Prigg v. Pennsylvania and Justice Joseph Story's Judicial Nationalism, 1994 SUP. CT. REV. 247, 252 (arguing that Prigg requires us to reevaluate Justice Story); Barbara Holden-Smith, Lords of Lash, Loom, and Law: Justice Story, Slavery, and Prigg v. Pennsylvania, 78 CORNELLL. REV. 1086, 1088-89 (1993) (explaining that historians and legal scholars find Story's opinion in Prigg to be inconsistent with his moral opposition to slavery).
136. Charge to the Grand Jury, 30 F. Cas. 1013, 1014 (N.D.N.Y. 1851) (No. 18,262).
137. United States v. Cobb, 25 F. Cas. 481, 482 (N.D.N.Y. 1858) (No. 14,820). Justice Benjamin Curtis also employed an instrumentalist rationale sitting on circuit in Boston in 1854 when he charged a grand jury investigating an attempt to free a fugitive slave from a federal magistrate. He reminded the jury that "our duty is limited to administering the laws of the United States." Charge to the Grand Jury, 30 F. Cas. 983, 984 (D. Mass. 1854) (No. 18,250). It is "the imperative duty of all of us concerned in the administration of the laws, to see to it that they are firmly, impartially, and certainly applied to every offence, whether a particular law be by us individually approved or disapproved." Id. at 985. The reason that duty must be meticulously enforced is that "forcible and concerted resistance to any law is civil war, which can make no progress but through bloodshed, and can have no termination but the destruction of the government of our country, or the ruin of those engaged in resistance." Id.
138. Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 624 (1841).
139. Id. at 624-25.
140. NEHEMIAH ADAMS, A SOUTH-SIDE VIEW OF SLAVERY 136 (4th ed. Boston, Ticknor and Fields 1860).
141. HENRY ST. GEORGE TUCKER, INTRODUCTORY LECTURE DELIVERED BY THE PROFESSOR OF LAW IN THE UNIVERSITY OF VIRGINIA, AT THE OPENING OF THE LAW SCHOOL 7-8 (Charlottesville, VA, Magruder & Noel 1841).
142. Id. at 8.
143. BLEDSOE, supra note 43, at 440. B.F. Moore, one of Judge Ruffin's correspondents, published a tribute to Ruffin, which began, "the judge in the administration of the law, should have but one influence to direct his course, and that should be the influence of duty." 2 THE PAPERS OF THOMAS RUFFIN, supra note 63, at 358.
144. BLEDSOE, supra note 43, at 456. Occasionally, proslavery judges issued antislavery decisions - decisions in conflict with their moral sense - because the law dictated that result. A Tennessee judge upheld a will emancipating the donor's slaves. He concluded: I feel satisfied that I have no sympathies which would have misled me in this matter; for when permitted to indulge my feelings and opinions as an individual, I find them in strong and direct hostility to all schemes for emancipating slaves under existing circumstances, in the bosom of our country. Fisher's Negroes v. Dabbs, 14 Term. (6 Yer.) 119, 139 (1834).
145. HENRY A. BOARDMAN, THE AMERICAN UNION: A DISCOURSE 38 (Philadelphia, Lippincott, Grambo and Co. 1851). See also JOHN C. LORD, "THE HIGHER LAW" IN ITS APPLICATION TO THE FUGITIVE SLAVE BILL (Buffalo, George H. Delby and Co. 1851). Abolitionist ministers also wielded legal terms. "Blackstone," wrote Nathaniel Hall, "who will not be suspected of theological bias or weak sentimentalism, has said in his Commentaries . . . 'The law of nature, being coeval with mankind, and dictated by God himself, is, of course, superior in obligation to any other.'" NATHANIEL HALL, THE LIMITS OF CIVIL OBEDIENCE 14 (Boston, Wm. Crosby and H.P. Nichols 1851).
146. GREENE, supra note 59, at 36. Lecturers to college literary societies frequently emphasized the role of education in promoting the gradual progression of American society away from extreme principles and towards moderation. See, e.g., WILLIAM KENT, AN ADDRESS PRONOUNCED BEFORE THE PHI BETA KAPPA SOCIETY OF UNION COLLEGE 14-15 (New York, James van Norden & Co. 1841) ("I apprehend no essential change in the institutions . . . from the ultraisms of Democracy on the one hand, or from a reaction on the other of a spirit adverse to republican equality. . . . We certainly shall not witness such a revolution in our times."); LEONARD BACON, THE PROPER CHARACTER AND FUNCTIONS OF AMERICAN LITERATURE 18-19 (New York, American Biblical Repository 1840) ("A peculiar regard for law is another republican virtue. . . . Every citizen has an interest in the law and in the administration of it; and the consequence is that when a crime has been committed, every citizen sees it as a wrong done to himself, every eye is awake to discover the criminal, and every hand is ready to aid in greeting him."); WILLIAM G. GODDARD, AN ADDRESS TO THE PHI BETA KAPPA SOCIETY OF RHODE ISLAND 12 (Boston, John H. Eastburn 1837) (In New England one "witnesses many decided proofs of reverence for Science, for Art, for Letters; and by the whole aspects . . . the conviction is impressed . . . that, nowhere else in our country is to be found a more enlightened subjection to law, or so general a prevalance of high social refinement."). Often the addresses came from lawyers. See Phi Beta Kappa Orations, 24 N. AM. REV. 129 (1827) (reviewing JOSEPH STORY, A DISCOURSE PRONOUNCED BEFORE PHI BETA KAPPA (1826)). For example, Gulian Verplanck, author of an important contracts treatise, frequently addressed colleges about the importance of law in shaping American culture. See, e.g., Gulian C. Verplanck, The Advantages and Dangers of the American Scholar (1836), reprinted in JOSEPH BLAU, AMERICAN PHILOSOPHIC ADDRESSES 1700-1900, at 115-50 (1946). Verplanck was particularly important in explaining the foundation upon which the common law "rests, how far its different parts are reconcilable with the principles of natural justice and the dictates of reason and conscience, how far they depend upon positive institution and the mere authority of adjudged cases, and whether they can be arranged into a consistent whole, suited to the wants and adapted to promote the welfare of a highly civilized and commercial society." Verplanck's Essay on Contracts, 26 N. AM. REV. 253, 258 (1826). The techniques that have been applied so fruitfully to mine Fourth of July speeches for the evidence they contain on the public mind await application in the hundreds of speeches to antebellum literary societies. See generally MICHAEL KAMMEN, A MACHINE THAT WOULD GO OF ITSELF: THE CONSTITUTION AND AMERICAN LIFE (1986) (divining attitudes towards law from Fourth of July speeches); RUSH WELTER, THE MIND OF AMERICA, 1820-1860, at 190-218 (1975) (discussing Whig political thought and its expression in public fora); DANIEL WALKER HOWE, THE POLITICAL CULTURE OF THE AMERICAN WHIGS 11-42 (1979) (same).
147. GEORGE SHARSWOOD, PROFESSIONAL ETHICS 40-41 (Philadelphia, T. & J.W. Johnson & Co. 1896) (1853).
148. Id. (quoting Horace Binney, Eulogy for Chief Justice Tilghman, 16 Sarg. & Rawles 444 (1827)). The developing professional standards of judging and practicing law in the nineteenth century, which is represented by Sharswood's treatise, promises to help in the recovery of the intellectual world of nineteenth-century judges and lawyers. We need to know more about what types of arguments they thought were persuasive - and what the limits on the judges were - so that we can understand how ideas popular in the public influenced - and were influenced by - the law found in the case reporters. See generally MAXWELL BLOOMFIELD, AMERICAN LAWYERS IN A CHANGING SOCIETY, 1776-1876 (1976); HORWITZ, supra note 6, chs. 1, 6. Benjamin Butler, proposing to start a law school at the University of the City of New York (now New York University), for example, justified the teaching of professional ethics because it would add to the "honor and usefulness of the profession, to secure . . . on the part of all its members, such a line of conduct, as shall furnish no occasion for judicial rebuke or popular reproach." BENJAMIN F. BUTLER, A PLAN FOR THE ORGANIZATION OF THE LAW SCHOOL IN THE UNIVERSITY FOR THE CITY OF NEW YORK (1835), reprinted in THE GLADSOME LIGHT OF JURISPRUDENCE 165, 175 (Michael Hoeflich ed., 1988).
149. 1 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES WITH A PRELIMINARY REVIEW OF THE CONSTITUTIONAL HISTORY OF THE COLONIES AND STATES, BEFORE THE ADOPTION OF THE CONSTITUTION 410 (Boston, Hilliard, Gray, and Co. 1833).
150. Id.
151. 3 Id. at 425 n.3 (quoting Osborne v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 866 (1824)). Certainly, some judges felt able to break out of the duty to follow positive law. Justice Abram Smith of the Wisconsin Supreme Court, for example, challenged the Fugitive Slave Act's provisions for punishing those who helped fugitive slaves escape by issuing a writ of habeas corpus. See In re Booth, 3 Wisc. 13, 133-34 (1854). Chief Justice Roger B. Taney's opinion in Ableman v. Booth, 62 U.S. (21 How.) 506 (1859) rejected the Wisconsin court's antislavery approach. See Jenni Parrish, The Booth Cases: Final Step to Civil War, 29 WILLAMETTE L. REV. 237, 271-74 (1993).
152. CONG. GLOBE, 31st Cong., 1st Sess. 274 (1850).
153. See generally LYSANDER SPOONER, THE UNCONSTITUTIONALITY OF SLAVERY (Boston, Bela Marsh 1845). See also COVER, supra note 6, at 154-58; WILLIAM GOODELL, VIEWS OF AMERICAN CONSTITUTIONAL LAW IN ITS BEARING UPON AMERICAN SLAVERY (Utica, NY, Lawson & Chaplin 1845); Randy E. Barnett, Was Slavery Unconstitutional Before the Thirteenth Amendment?: Lysander Spooner's Theory of Interpretation, 28 PAC. L.J. 977, 990-91 (1997).
154. GOODELL, supra note 26, at 407.
155. WENDELL A. PHILLIPS, THE CONSTITUTION A PROSLAVERY COMPACT: OR, EXTRACTS FROM THE MADISON PAPERS, ETC. (New York, American Anti-Slavery Society 1856); Letter from John A. Campbell to John C. Calhoun, Nov. 20, 1847, quoted in WILLIAM WIECEK, THE ORIGINS OF ANTISLAVERY CONSTITUTIONALISM, 1760-1848, at 240 (1977). See also JAMES BREWER STEWART, WENDELL PHILLIPS: LIBERTY'S HERO 117-45 (1986).
156. WENDELL PHILLIPS, CAN ABOLITIONISTS VOTE OR TAKE OFFICE UNDER THE UNITED STATES CONSTITUTION? (Cincinnati, Sparhawk and Lytle 1845).
157. WENDELL PHILLIPS, REVIEW OF LYSANDER SPOONER'S ESSAY ON THE UNCONSTITUTIONALITY OF SLAVERY (Boston, Andrews & Prentiss 1847).
158. See, e.g., PHILLIPS, supra note 128, at 25 ("Are we not, then, borne out in our assertion that neither any practical theory of Government, nor the recorded opinions of Statesmen or Jurists countenance the doctrines . . . that Judges are the proper persons to remedy, by overruling the bad laws of the State."). See also id. at 15, 18-25, 57; Constitutionality of Slavery, 4 MASS. Q. REV. 463, 463 (1848).
159. PHILLIPS, supra note 128, at 35.
160. See generally WIECEK, supra note 126, at 228-48. See also COVER, supra note 6, at 149-51.
161. See generally AILEEN S. KRADITOR, MEANS AND ENDS IN AMERICAN ABOLITIONISM: GARRISON AND HIS CRITICS ON STRATEGY AND TACTICS, 1934-1850 (1967); LEWIS PERRY, RADICAL ABOLITIONISM: ANARCHY AND THE GOVERNMENT OF GOD IN
162. 1 DRED, supra note 1, at 442.
163. Id. at 450.
164. Id.
165. See, e.g., GENOVESE, supra note 45, at 10-40 (examining proslavery worldview of Southerners, particularly as it concerned order); WILLIAM A. SMITH, LECTURES ON PHILOSOPHY AND PRACTICE OF SLAVERY, AS EXHIBITED IN THE INSTITUTION OF DOMESTIC SLAVERY IN THE UNITED STATES: WITH THE DUTIES OF MASTERS TO SLAVES, 60-103 (Thomas O. Summers ed., Nashville, TN, Stevenson and Evans 1856).
166. 1 DRED, supra note 1, at 450.
167. Id. at 450-51. Stowe's indictment of the church through Judge Clayton suggests that she believed in 1856 that reform of the law by itself was insufficient to root out the evils of slavery. For different reasons, proslavery writers likewise believed that slave law was a mere manifestation of the order inherent in nature, which could not be eliminated even with changes in law. The Mississippi lawyer George Sawyer, for example, wrote: Law, for the government and regulation of this institution is the creature of slavery. The real cause and ultimate necessity of human bondage in some form or other, have had, in all ages and nations, an anterior existence to all human law; their foundation is laid broad and deep in the philosophy of human nature. . . . Laws may, it is true, change the form and modify, for better or for worse, the system under which any state of servitude may exist; but they can no more abolish the substantial relation of master and slave, than they can do away with . . . poverty. GEORGE S. SAWYER, SOUTHERN INSTITUTES; OR, AN INQUIRY INTO THE ORIGIN AND EARLY PREVALANCE OF SLAVERY AND THE SLAVE-TRADE 309 (Philadelphia, J.B. Lippincott & Co. 1859). Sally Hadden's interpretation of Ruffin's proslavery thoughts suggests that he felt fewer conflicts than did Clayton. See Sally Hadden, Thomas Ruffin and State v. Mann: A Reconsideration, in RACE AND CRIMINAL JUSTICE IN THE AMERICAN SOUTH, 1800-1900 (Christopher Waldrep ed., forthcoming 1998); cf. Arthur LeFrancois, Dissecting the Body of Mann: Revisiting the Logic of Dominion (unpublished paper on file with author) (performing a close reading of Mann, including its earlier drafts, with attention to the conflict between law and morality).
168. 2 DRED, supra note 1, at 16-17.
169. 1 DRED, supra note 1, at 451. See COVER, supra note 6, at 119-23 (discussing constraints on judges). But Clayton was not merely retreating to a formalism that located responsibility for a morally suspect act elsewhere, as the Northern judges whom Cover studied did. See id. at 196-267. Instead, Clayton believed that he was furthering the greater goal of an ordered society by upholding the law. Cf. Soifer, supra note 20, at 1922-23 (discussing Massachusetts Justice Lemuel Shaw's reasons for ordering return of fugitive slaves); James W. Ely, Book Review, 1975 WASH. U. L.Q. 265, 270-73 (1975) (reviewing ROBERT COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS (1975)) (questioning Cover's characterization of reasoning style as formalist and questioning whether judges actually felt the distinction between conscience and law).
170. See, e.g., Bledsoe, supra note 43 (contrasting philanthropy and judgment, criticizing "blind passion," and emphasizing duty of citizens to the Constitution); R.H. RIVERS, ELEMENTS OF MENTAL PHILOSOPHY 258-78 (Thomas O. Summers ed., Nashville, TN, Southern Methodist Publishing House 1862) (contrasting "reasoning faculties" with feeling). See also Hoeflich, supra note 14 (portraying legal thought, particularly in South Carolina, as deductive and based on "mathematical models," particularly geometry).
171. Stowe's question, how should judges act when faced with humanitarian rationales, continues to be asked today by those exploring the duties of lawyers, judges, and citizens towards the law. See DANIEL COQUILLETTE, LAWYERS AND FUNDAMENTAL MORAL RESPONSIBILITY 155-60, 171 (1995) (discussing problem of harboring fugitive slaves). Stowe's explanation is, of course, that of an abolitionist who had trouble believing that people would permit slavery if they knew "what slavery is." UNCLE TOM'S CABIN, supra note 2, at 513. Therefore, Stowe's depiction of Judge Clayton may have been biased by her search for an explanation why people who did understand what slavery was still failed to act against it. Stowe's perspective on Clayton may, thus, tell us more about Stowe's own incredulity about how people act than about the actual motives of Southern judges.
172. There is credible evidence that Stowe intended to offer an optimistic assessment of Southern society in Dred, but changed the direction of her novel following the caning of Senator Charles Sumner. See HEDRICK, supra note 21, at 258-59 (quoting Stowe as stating that "[t]he book is written under the impulse of our stormy times"). Stowe concludes with a picture suggesting that reform of slavery is impossible absent a complete change in American society. The message is very different from that in Uncle Tom's Cabin, where individual readers were told to "feel right" and "pray." UNCLE TOM'S CABIN, supra note 2, at 473. At the end of Dred, one is left with the thought that the only reform possible is complete removal from Southern society and that mere reform of the law is not enough. See also Thomas R. Hovet, THE MASTER NARRATIVE: HARRIET BEECHER STOWE'S SUBVERSIVE STORY OF MASTER AND SLAVE IN UNCLE TOM'S CABIN AND DRED 56-83 (1989) (discussing conflict between law and nature). Presaging her later work, such as The Minister's Wooing, which attacks the emptiness of mainstream religious doctrine, Stowe lays blame for the evils of slavery on the churches. Edward, for example, asks for help in lobbying the legislature for changes in the law from his uncle, Dr. Cushing, a Presbyterian minister. Dr. Cushing, like Judge Clayton, acknowledges his trying position, but believes that lobbying would be ineffective and therefore refuses to begin it. Judge Clayton, upon hearing his brother-in-law's response, tells Edward that there may be many individuals who seek reform, but that "they are mostly without faith or hope, like me. And from the communities - from the great institutions in society - no help whatever is to be expected." 2 DRED, supra note 1, at 76. In the Key, Stowe argues that law reinforces - and is reinforced by - the churches. One could, thus, mine the Key for an understanding of the connection between law, religion, and public opinion, a topic of growing interest in Stowe's era. See Senator Charles Suraner, Freedom National, Slavery Sectional, CONG. GLOBE, 32nd Cong., 1st Sess. app. at 1111 (Aug. 25, 1852) (discussing impact of public disrespect for law on its enforcement); cf. BACON, supra note 117, at 4 ("The character of a people . . . is determined mostly by its origin, its history, its political organization, its religious doctrines and institutions."); DEW, supra note 10; see also William W. Fisher, Ideology, Religion and the Constitutional Protection of Private Property, 1760-1860, 39 EMORY L. J. 65, 68-128 (1989) (discussing the connection between religious ideas and constitutional thought).
173. 1 DRED, supra note 1, at 451.
174. See COVER, supra note 6, at 159-61 (stating that the attorney's role within a system of law assumed to be immoral is much easier to justify than the role of the judge in the same situation).
175. 1 DRED, supra note 1, at 16.
176. Id.
177. Id.
178. Id. at 27.
179. Id.
180. 1 DRED, supra note 1, at 27.
181. Id. at 371.
182. Id. at 372.
183. Id. at 373.
184. Id. at 374.
185. 1 DRED, supra note 1, at 374.
186. Id. at 374-75.
187. Id. at 375-76.
188. Id. at 378.
189. Id. at 380.
190. Juries were seen by some as a preserve of the moral sense of the community; others feared that they were used to help judges avoid responsibility for tough decisions. See Stell v. Glass, 1 Ga. 475, 488 (1846) ("Were their spirit more thoroughly infused into our system, we should no longer hear it cast upon it as a reproach, that the use of a jury is merely to screen the court from the responsibility and odium of a decision, which is, in fact in most cases, the result of the judge's own view of the testimony."); cf. LYSANDER SPOONER, AN ESSAY ON THE TRIAL BY JURY 1, 142-56 (Boston, Bela Marsh 1852) (referring to the jury as a "palladium of liberty" and charging that the methods of selecting jurors was illegal).
191. 1 DRED, supra note 1, at 446.
192. LIFE AND LETTERS, supra note 75, at 145.
193. Jones v. Van Zandt, 46 U.S. (5 How.) 216, 231 (1847) (Woodbury, J.) ("[T]his court has no alternative, while [compromises on slavery] exist, but to stand by the constitution and laws with fidelity to their duties and their oaths. Their path is a straight and narrow one, to go where the constitution and laws lead, and not to break both, by traveling without or beyond them.").
194. LIFE AND LETTERS, supra note 75, at 145.
195. 1 DRED, supra note 1, at 448.
196. Id. at 449.
197. Id.
198. Id.
199. Id.
200. For example, Senator Charles Tillinghast James stated: My own views of philanthropy and humanity lead me to the conclusion that, of two evils, we should choose the least; and I certainly form no just estimate of the enormous difference between the evils resulting from the return of a few fugitive slaves to their owners, and those to result to the entire people of the United States, from a course likely to annihilate the glorious fabric of the American Union. CONG. GLOBE, 32nd Cong., 1st Sess. app. at 1123 (Aug. 26, 1852) (remarks of Sen. Charles Tillinghast James). Representative R.M.T. Hunter stated: Some sufferings, sir, belong to our condition; it is a part of the lot of humanity, and although you may point me to cases which I admit to be cases of hardship, cases which shock the feelings of every humane and benevolent man, cases which I would gladly relieve if I had the power, yet if it be shown to me that in relieving them I shall inflict an injury upon a larger class of the community - upon a whole caste - I must refuse to do it. CONG. GLOBE, 31st Cong., 1st Sess. app. at 1632 (Sept. 3, 1850) (remarks of Rep. R.M.T. Hunter). See also PROCEEDINGS AND DEBATES OF THE VIRGINIA STATE CONVENTION, supra note 48, at 264 (Johnson, Nov. 11, 1829) ("With these views of the rights of the majority, and the test of expediency to which every measure of reform must be subjected, let us proceed to the question before the Committee."); SAWYER, supra note 138, at 14 ("Laws and regulations relate to [slaves] only upon the true principle of self-government - the greatest amount of good to the greatest number."); JOHN W. ANDREWS, AN ORATION PRONOUNCED BEFORE THE CONNECTICUT ALPHA OF THE PHI BETA KAPPA SOCIETY OF YALE COLLEGE 18 (New Haven, B.L. Hamlen 1850) ("Utility is now made the best test of works of art. . . . So it is with the work of the poet, the sculptor, the orator, the statesman, and with every department of thought."). Cf. Fisher, supra note 143, at 118 (Whig ideology held government "should limit itself to initiatives that do not cause any individual or group net injury."). The balancing often appeared in public discourse as well. See supra note 57.
201. 2 DRED, supra note 1, at 102.
202. Id.
203. 1 DRED, supra note 1, at 72-73. Recall that Harry is Tom and Nina's half brother -the son of their father, Colonel Gorden, and one of his slaves. See supra Part I, notes 22-24 and accompanying text.
204. 2 DRED, supra note 1, at 67.
205. See 1 DRED, supra note 1, at 426-27; 2 DRED, supra note 1, at 67.
206. Cora's story is based upon Hinds v. Brazealle, 3 Miss. (2 How.) 837 (1838).
207. 1 DRED, supra note 1, at 209.
208. Id.
209. Id. at 210.
210. 2 DRED, supra note 1, at 181.
211. Id. at 181-82.
212. Id. at 185.
213. Id. at 187. The proslavery lawyers, judges, and politicians in the novel never explain their affinity for slavery because it is a positive good, as many Southern lawyers and judges actually did in the period from 1830 through 1861. See, e.g., Harper, supra note 44. That disjunction between actual attitudes and Stowe's portrayal may be the result of her belief that no one could believe that slavery in the abstract was desirable. Or it may be result of the way that she interpreted proslavery thought - as justifying slavery because it placed people in the right social position.
214. 2 DRED, supra note 1, at 188.
215. Id.
216. There are wonderful, recent writings on women's role in political movements, particularly abolitionism, temperance, and women's rights. See, e.g., THE ABOLITIONIST SISTERHOOD: WOMEN'S POLITICAL CULTURE IN ANTEBELLUM AMERICA (Jean Fagin Yellin & John C. Van Home eds., 1994); JEAN FAGIN YELLIN, WOMEN AND SISTERS: THE ANTI-SLAVERY FEMINISTS IN AMERICAN CULTURE (1989). Other studies examine women's political ideology. See, e.g., NANCY COTT, BONDS OF TRUE WOMANHOOD (1977). Often, those are in the context of women's opposition to traditionally male discourse, such as women's emphasis on sentiment. See DAVIDSON, supra note 10. There are few works, however, that examine the specifically legal ideas of women, particularly the interaction of women's ideas about law with other legal cultures. See, e.g., Clark, supra note 10; Sarah Barringer Gordon, "Our National Hearthstone": Anti-Polygamy Fiction and the Sentimental Campaign Against Moral Diversity in Antebellum America, 8 YALE J.L. & HUMAN. 295 (1996); Jane Larson, "Women Understand So Little, They Call My Good Nature 'Deceit'": A Feminist Rethinking of Seduction, 93 COLUM. L. REV. 374 (1993); Lea Vander Velde & Sandhya Subramanian, Mrs. Dred Scott, 106 YALE L.J. 1033 (1997).
217. KEY, supra note 4, at 82.
218. As such, the window - or "site" as it might now be called - offers the chance to see how a contemporary engaged that thought. Peering through the window, one can catch a glimpse of a vibrant world. See William W. Fisher III, Texts and Contexts: The Application to American Legal History of the Methodologies of Intellectual History, 49 STAN. L. REV. 1065, 1084-86 (1997) (developing methodologies for recovering legal history); Hendrik Hartog, Mrs. Packard on Dependency, 1 YALE J.L. & HUMAN. 79, 84 (1988) (using Packard's writings describing her confinement to institution by her husband because she resisted his authority and describing Packard's obscure life as a "site" to examine wide cultural patterns). Dred also permits reconstruction of the context of both abolitionist and proslavery thought. For a reconstruction of Stowe's ideas about law in Uncle Tom's Cabin, see Alfred L. Brophy, "over and above . . . there broods a portentous shadow, -the shadow of law": Harriet Beecher Stowe's Critique of Slave Law in UNCLE TOM'S CABIN, 12 J. L. & RELIGION 457-506 (1995-96).
219. See COVER, supra note 6, at 229-38. Other commentators, such as Ronald Dworkin, have suggested that antebellum judges should not have felt themselves bound by the proslavery law. Dworkin believes that judges could have constructed a jurisprudence based on their understanding of the Constitution and "a conception of individual freedom antagonistic to slavery." Dworkin, The Law of the Slave Catchers, TIMES LITERARY SUPPLEMENT 1437 (Dec. 5, 1975) (reviewing ROBERT M. COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS (1975)). Stowe shows why such a jurisprudence was unworkable.
220. Stowe's categorization of Southern legal thought groups utilitarian thinking with formalism. Thus, Stowe identifies Ruffin's calculations that slave law was necessary to uphold slavery as legal logic. Ruffin's opinion presents a mixture of the rationales -formal defense of law with utilitarian balancing. See supra notes 31-68 and accompanying text. It was the law's subordination of the slave's humanity to the community - the strict separation of consideration of individual humanity - that Stowe complained of. If this is not a scrupulous disclaimer of all human intention in the decision, as far as the slave is concerned, and an explicit declaration that he is protected only out of regard to the comfort of the community, and his property value to his master, it is difficult to see how such a declaration could be made. KEY, supra note 4, at 73. Stowe, thus, groups together two concepts that Cover sees as distinct.
221. Id. at 72.
222. Id.
223. Id. at 71.
224. The law is treated as one part of a much larger system of proslavery thought and action, regulating and providing support for political and religious ideas, at the same time that it receives support from those areas. See Eugene D. Genovese, The Political Foundations of Justice, 85 YALE L. J. 582, 588 (1976) (reviewing ROBERT M. COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS (1975)). Two recent articles connect cultural thought to law in intriguing ways and thus show the connection between proslavery thought in the Southern public and in the judiciary. See Fisher, supra note 43, at 1054-56; Gross, supra note 43, at 315.
225. There is evidence that the judges recognized the "brooding omnipresence" of concern for humanity that Dworkin believes would be important in fashioning an antislavery jurisprudence. Stowe employed the image of "brooding" in regard to the slave law - not humanity - and her detractors responded to her imagery. UNCLE TOM'S CABIN, supra note 2, at 37 ("[O]ver and above there broods a portentous shadow - the shadow of law."); A NORTHERN MAN [DAVID BROWN], THE PLANTER: OR, THIRTEEN YEARS IN THE SOUTH 37 (Philadelphia, H. Hooker 1853) (responding to Stowe's image of a brooding shadow). Nevertheless, those general principles of humanity were insufficient, given the judges' backgrounds and the political and religious constraints surrounding them, to allow the judges to break free of the gravitational pull of their perceived duty to law. See generally WENDELL A. PHILLIPS, THE CONSTITUTION A PROSLAVERY COMPACT: OR, EXTRACTS FROM THE MADISON PAPERS, ETC. 15-26 (New York, American Anti-Slavery Society 1856) (relating excerpts focusing on the law and slavery).
226. NATHAN BEVERLY TUCKER, A SERIES OF LECTURES ON THE SCIENCE OF GOVERNMENT INTENDED TO PREPARE THE STUDENT FOR THE STUDY OF THE CONSTITUTION OF THE UNITED STATES 416 (Philadelphia, Carey and Hart 1845). See also Holmes, supra note 74, at 722-24 (likening fiction to a magic wand that produces either bounty or blight depending on how it is used).
227. Thomas Ruffin, State Rights and State Equality, CONG. GLOBE, 36th Cong., 2d Sess. 228 (Feb. 20, 1861).
228. See id. at 227 (indicating that the Republicans called for the South to follow the laws of the United States but yet they "encouraged lawlessness in almost every conceivable shape").
229. Id. at 227. See also Thomas Ruffin, The Constitution and Union, CONG. GLOBE, 34th Cong., 1st Sess. 1031, 1032 (Aug. 2, 1856) ("As good citizens, they should conform and submit to the laws of the country.").
230. Ruffin, supra note 198, at 227.
231. See id. at 228. See 2 THE PAPERS OF THOMAS RUFFIN, supra note 63, at 517 n. 1 (identifying Representative Thomas Ruffin as distant cousin of Justice Thomas Ruffin).