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Harriet Beecher Stowe's Critique of Slave Law in Uncle Tom's Cabin

Published online by Cambridge University Press:  24 April 2015

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

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

Type
Articles
Information
Journal of Law and Religion , Volume 12 , Issue 2 , 1995 , pp. 457 - 506
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1996

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References

1. See, for example, [George Holmes, Frederick], Book Review, Uncle Tom's Cabin, 18 S Literary Messenger 721, 723 (12 1852)Google Scholar (Uncle Tom's Cabin “has obtained an unhappy notoriety …. When, in the course of a few short months, a quarter of a million of the readers of the English tongue manifest their readiness to welcome … a lie, it is useless for the injured party to disprove the statement. …”); Richmond Enquirer (Sep 8, 1835) (editorial urging that Southerners rebut the immediate emotional appeal of abolitionist writings).

2. Simms, W. Gilmore, The Morals of Slavery, in Harper, Chancellor, et al, The Proslavery Argument as Maintained by the Most Distinguished Writers of the Southern States 175, 217 (Walker, Richards & Co, 1852, Negro U Press, reprint 1968) (emphasis in original)Google Scholar.

3. Waddell, James A., “Uncle Tom's Cabin” Reviewed; or American Society Vindicated from the Aspersions of Mrs. Harriet Beecher Stowe 45 (Southern Weekly Post Office, 1852) (emphasis in original)Google Scholar.

4. Stowe has been the beneficiary of attention from scholars, culminating in Hedrick's, Joan D. Pulitzer Prize winning, Harriet Beecher Stowe: A Life (Oxford U Press, 1994)Google Scholar. The scholars have examined her work from a seemingly inexhaustible number of vantages, including particularly the role of women as reformers and the status of blacks, from the language of her black characters to their representativeness in American society. See generally Sundquist, Eric, ed, New Essays on Uncle Tom's Cabin (Cambridge U Press, 1986)Google Scholar; Lowance, Mason I. Jr., Westbrook, Ellen E., DeProspo, R.C., eds, The Stowe Debate: Rhetorical Strategies in Uncle Tom's Cabin (U of Massachusetts Press, 1994)Google Scholar. But they have devoted surprisingly little attention to what Stowe said about law. For the few accountings of Stowe's critique of law, see Thomas, Brook, Cross-Examinations of Law and Literature 128–31 (Cambridge U Press, 1987)CrossRefGoogle Scholar; Kisthardt, Melanie J., Flirting with Patriarchy: Feminist Dialogics, in The Stowe Debate at 40 (cited in this note) (identifying law as “ubiquitous signifier of patriarchal language”)Google Scholar; Gossett, Thomas F., Uncle Tom's Cabin and American Culture 183 (S Methodist U Press, 1985)Google Scholar (Republican Party distanced itself from the novel's radical approach to the Fugitive Slave Act); compare Hedrick, , Harriet Beecher Stowe at 202–04Google Scholar (cited in this note) (analyzing Fugitive Slave Law as prime motivating factor for the writing of Uncle Tom's Cabin). Some recent scholars have emphasized that Stowe advocated an ideology of domesticity to replace the patriarchal world of slavery. That ideology is closely related to Stowe's critique of law. See Tompkins, Jane, Sensational Designs: The Cultural Work of American Fiction 121–46 (Oxford U Press, 1985)Google Scholar; Brown, Gilliam, Domestic Individualism: Imagining the Self in Nineteenth-Century America 13–38 (U California Press, 1990)Google Scholar.

5. Miller, Perry, The Life of the Mind in America, From the Revolution to the Civil War 105 (Harcourt, Brace, 1965)Google Scholar (employing image of “heart” and “head”). The tension between head and heart appeared in Miller's earlier work as well. See, for example, Miller, Perry, The New England Mind: The Seventeenth Century (Macmillan Co, 1939, Harvard U Press, 1954)Google Scholar (depicting piety and reason in thought of early New England). See also Bartlett, Elisha, The Head and the Heart; or, The Relative Importance of Intellectual and Moral Education; (W.D. Ticknor, 1838)Google Scholar; Note, Swift v. Tyson Exhumed, 79 Yale L J 264, 305–08 (1969)Google Scholar (employing Miller's categories—and refining them—to understand Supreme Court jurisprudence).

6. Finney quoted in Miller, , The Life of the Mind at 31 (cited in note 5)Google Scholar.

7. Id at 95.

8. State v Mann, 13 NC (2 Dev) 229, 233 (1829)Google Scholar.

9. Id at 230. Other cases involved cold application of law to slaves, but judges did not acknowledge the concerns of humanity. See, for example, Commonwealth v Souther, 48 Va (7 Gratt) 673 (1851)Google Scholar (holding a master who tortured a slave to death liable only for second-degree murder). See also Cobb, Thomas R. R., An Inquiry into the Law of Negro Slavery in the United States of America (T. & J. W. Johnson & Co, 1858)Google Scholar (drawing upon history of slavery to illustrate the importance of its continuance in United States and the problems caused by abolition). Several recent analyses emphasize the conflicting obligations of humanity and law pulling on judges. See, for example, Wiethoff, William, A Peculiar Humanism: The Judicial Advocacy of Slavery in High Courts of the Old South, 1820-1850 (U Georgia Press, 1996)Google Scholar (recovering ways that Southern jurists melded classical ideals with proslavery thought); Gross, Ariela, Pandora's Box: Slave Character on Trial in the Antebellum Deep South, 7 Yale J L & Human 267 (1995)Google Scholar; Schiller, Reuel E., 78 Conflicting Obligations: Slave Law and the Late Antebellum North Carolina Supreme Court, 78 Va L Rev 1207 (1992)CrossRefGoogle Scholar.

10. See Stowe, Harriet Beecher, Love versus Law, in Stowe, Harriet Beecher, The Mayflower; Or, Sketches of Scenes and Characters Among the Descendants of the Pilgrims 19–79 (Harper & Brothers, 1843)Google Scholar.

11. See Stowe, Harriet Beecher, 1 Dred: A Tale of the Great Dismal Swamp 450 (Riverside Press, 1896)Google Scholar (abolitionist lawyer Edward Clayton asks his father, Judge Clayton, who was modeled on Ruffin, “[W]hy could you not have been a reformer of the system?”): Stowe, Harriet Beecher, A Key to Uncle Tom's Cabin 79 (John P. Jewett & Co, 1853)Google Scholar (asking why Ruffin was “merely an expositor, and not a reformer of law”). See also Grüner, Mark Randall, Stowe's Dred: Literary Domesticity and the Law of Slavery, 20 Prospects 1, 2 (1995)Google Scholar (examining how “militant, sentimental, and ironic rhetorics clash, combine, and, regenerate” in Dred); Brophy, Alfred L., Humility, Utility, and Logic in Southern Legal Thought: Harriet Beecher Stowe's Vision in “Dred: A Tale of the Great Dismal Swamp,” forthcoming, 78 Boston U. L. Rev. (10 1998)Google Scholar.

As Perry Miller wrote, “[E]vangelical and Unitarian piety reacted against the elevation of law into an intricate system of reason by insinuating that lawyers, like the overintel-lectualized theologians of New Haven, separated substance from form, spirit from letter, and sacrificed justice to technicality.” Miller, , The Life of the Mind in America at 188 (cited in note 5)Google Scholar.

12. Howe, Daniel Walker, The Political Culture of the American Whigs 18–20 (U Chicago Press, 1979)Google Scholar (discussing connection between evangelical religion and Whig political agenda). On specific areas of reform inspired by evangelical religion, see Stansell, Christine, City of Women: Sex and Class in New York, 1789-1860 (Alfred A. Knopf, 1986)Google Scholar (movements for relief of poverty and prostitution); Chused, Richard H., Married Women's Property Law: 1800-1850, 71 Georgetown L J 1359, 1419–23 (1983)Google Scholar; Sellers, Charles, The Market Revolution: Jacksonian America, 1815-1846 364–69 (Oxford U Press, 1991) (education)Google Scholar; id at 262-66 (temperance). See generally Walters, Ronald G., American Reformers, 1815-1860 (Hill & Wang, 1978)Google Scholar; Abzug, Robert H., Cosmos Crumbling: American Reform and the Religious Imagination (Oxford U Press, 1994)Google Scholar.

13. See generally Stewart, James Brewer, Holy Warriors: The Abolitionists and American Slavery 33 (Hill & Wang, 1976)Google Scholar; Abzug, Robert H., Passionate Liberator: Theodore Dwight Weld and the Dilemma of Reform (Oxford U Press, 1980)Google Scholar; Gienapp, William E., Abolitionism and the Nature of Antebellum Reform, in Jacobs, Donald M., ed, Courage and Conscience 21–46 (Boston Athenaeum, 1993)Google Scholar. See also Waddell, , Uncle Tom's Cabin Reviewed at 14–15 (cited in note 3)Google Scholar (“There is a kind of religious obliquity of mind …, the tendency of which is to exalt the second above the first table of the divine law, and to square the letter of the gospel by what they think should be its spirit. It is to this widespread error in the religious portion of some communities that we are inclined to trace much of that rabid philanthropy that has begun to curse society with its rash and meddlesome innovations.”).

14. See Clark, Elizabeth B., “The Sacred Rights of the Weak”: Pain, Sympathy, and the Culture of Individual Rights in Antebellum America, 82 J Am Hist 463 (1995)CrossRefGoogle Scholar; Fisher, Philip, Hard Facts: Setting and Form in the American Novel 92 (Oxford U Press, 1985) (characterizing sentimental literature as the primary medium for radical reform in antebellum America)Google Scholar.

15. Birney, James G., American Churches, the Bulwarks of Slavery (Whipple, C., 2d ed, 1842)Google Scholar. See also McKivigan, John R., The War Against Proslavery Religion: Abolitionism and the Northern Churches, 1830-1865 (Cornell U Press, 1984)Google Scholar (explaining why, despite attempts by abolitionists, churches frequently failed to oppose slavery); Barnes, Albert, The Churches and Slavery (Parry & McMillan, 1856)Google Scholar.

Although the abolition movement drew important strength from evangelical religious leaders, some churches were also instrumental in supporting slavery. See generally Tise, Larry E., Proslavery: A History of the Defense of Slavery in America, 1701-1840 (U Georgia Press, 1987) (examining proslavery thought through writings of ministers)Google Scholar; Genovese, Eugene D., The Slaveholders Dilemma: Freedom and Progress in Southern Conservative Thought 35–39 (U South Carolina Press, 1992) (discussing proslavery thought among Southern religious leaders)Google Scholar; Farmer, James Oscar Jr., The Metaphysical Confederacy: James Henley Thornwell and the Synthesis of Southern Values 195–233 (Mercer U Press, 1986) (same)Google Scholar.

Evangelical religion's emphasis on emotion and perfection lead adherents in many directions. Bertram Wyatt-Brown has re-emphasized the connections between evangelical thought and the proslavery movement. See Wyatt-Brown, Bertram, From Piety to Fantasy: Proslavery's Troubled Evolution in Wyatt-Brown, Bertram, Yankee Saints and Southern Sinners 155, 156 (Louisiana State U Press, 1985)Google Scholar.

16. Channing, William E., Slavery 1 (James Munroe & Co, 1835)Google Scholar.

17. Id at 2.

18. Id at 10.

19. On religion and abolitionism, see Davis, David Brion, The Problem of Slavery in the Age of Revolution, 1770-1823 (Cornell U Press, 1975)Google Scholar; Walters, Ronald G., Religion: Evangelical Protestantism and the Reform Impulse, in Walters, Ronald G., The Antislavery Appeal: American Abolitionism After 1830 37 (Johns Hopkins U Press, 1976)Google Scholar. Kraditor, Aileen S., Means and Ends in American Abolitionism: Garrison and His Critics on Strategy and Tactics, 1834-1850, 78–117 (Pantheon Books, 1967) (discussing the religious critique of slavery)Google Scholar. Kraditor divides the critics into two groups, those who believed that slavery could be extirpated from American society without radical changes in society itself, and the radicals, led by William Lloyd Garrison, who attacked all of American government. Stowe fell somewhere between those two poles. Her critique of both slave law and patriarchy suggested the need for radical reform, although she was wary of Garrison's radicalism. Garrison was, on the other hand, wary of the lack of active resistance to slavery in Uncle Tom's Cabin and of Stowe's advocacy of colonization in Africa. See 22:13 Liberator 50 (03 26, 1852)Google Scholar.

The effect of Stowe's critique of the law of slavery awaits further study. See generally Perry, Lewis, Radical Abolitionism: Anarchy and the Government of God in Antislavery Thought (Cornell U Press, 1973)Google Scholar (discussing anarchy in abolitionist movement and suggesting that the abolitionist ideas influenced the Civil War). Some writers tracked Stowe's critique closely, although it is by no means clear that she was responsible for the content of their critiques. See, for example, Goodell, William, The American Slave Code in Theory and Practice: Its Distinctive Features Shown by its Statutes, Judicial Decisions, and Illustrative Facts (American and Foreign Anti-slavery Society, 1853, reprinted Negro U Press, 1968)Google Scholar.

20. Lawrence, John, The Slavery Question (United Brethren Printing Establishment, 4th ed, 1857)Google Scholar.

21. Id at 30-40 (citing, among others, Judge George Stroud, whose views on slavery may be found in Stroud, George, A Sketch of the Laws Relating to Slavery in the Several States of the United States of America (Kimber & Sharpless, 1827))Google Scholar.

22. Lawrence, , The Slavery Question at 38 (cited in note 20)Google Scholar.

23. After quoting an address from the Synod of Kentucky rejecting slave marriage as inconsistent with the master's absolute right of property in his slaves, Lawrence continued: “The laws intend to make slaves absolute property, and hence no relation is legalized which would detract from the value of that property. The interest of the owner alone is consulted. These laws, horrible as they appear, are entirely consistent with chattel slavery.” Id at 48 (emphasis in original).

24. Id at 79.

25. Weld, Theodore Dwight, American Slavery as It Is; Testimony of a Thousand Witnesses (American Anti-Slavery Society, 1839)Google Scholar. See also Clark, “The Sacred Rights of the Weak” (cited in note 14) (analyzing effect of sympathy for slaves on law).

26. Letters of the Rev. Dr. Beecher and Rev. Mr. Nettleton, on the “New Measures” in Conducting Revivals of Religion 93 (G. & C. Carvill, 1828)Google Scholar, cited in Nelson, William E., The Impact of the Antislavery Movement upon Styles of Judicial Reasoning in Nineteenth Century America, 87 Harv L Rev 513, 526 (1974)CrossRefGoogle Scholar.

27. See Wiecek, William M., Latimer: Lawyers, Abolitionists, and the Problem of Unjust Laws, in Perry, Lewis and Fellman, Michael, eds, Antislavery Reconsidered: New Perspectives on the Abolitionists 219–37 (Louisiana State U Press, 1979)Google Scholar.

28. Fugitive Slave Act, 9 Stat 462 (1850)Google Scholar. See generally Potter, David M., The Armistice of 1850, in Potter, David M., The Impending Crisis 90–120 (Harper & Row, 1976) (discussing the Compromise of 1850)Google Scholar.

29. Hosmer, William, The Higher Law, in Its Relations to Civil Government 93 (Derby & Miller, 1852)Google Scholar.

30. Fugitive Slave Act at § 6 (cited in note 28). On responses to the Fugitive Slave Act, see Foner, Eric, Free Soil, Free Labor, Free Men: Ideology of the Republic on Party Before the Civil War 82–89 (Oxford U Press, 1970)Google Scholar; Campbell, Stanley W., The Stave Catchers: Enforcement of the Fugitive Slave Law, 1850-1860 (U North Carolina Press, 1968)Google Scholar.

31. Thoreau, Henry David, Civil Disobedience [Resistance to Civil Government], in 4 Writings of Henry David Thoreau 356, 358 (Houghton Mifflin, 1906)Google Scholar.

32. Henry David Thoreau, Slavery in Massachusetts, in id at 388, 396. Thoreau countered arguments that those who opposed the law failed to use reason. “This law rises not to the level of the head or the reason; its natural habitat is in the dirt.” Id at 394. Like Stowe, he appealed to the “sentiment of the people,” rather than to the judge who relied on precedents. Id at 395.

33. See generally Campbell, The Slave Catchers (cited in note 30).

34. See Lord, John Chase, “The Higher Law,” in its Application to the Fugitive Slave Bill. A Sermon on the Duties Men Owe to God and to Governments (Union Safety Committee, 1851)Google Scholar; Adams, William, Christianity and Civil Government (C. Scribner, 1851)Google Scholar. But see Richardson, John G., Obedience to Human Law Considered in Light of Divine Truth (H. A. Cooke, 1852)Google Scholar. Perhaps 150 sermons were written in defense of the position that no law superseded the Constitution. See Howard, Victor B., Conscience and Slavery: The Evangelistic Calvinist Domestic Missions, 1837-1861 95 (Kent State U Press, 1990)Google Scholar.

35. Curtis, Benjamin R., ed, 1 A Memoir of Benjamin Robbins Curtis, L.L.D. With Some of His Professional and Miscellaneous Writings 126–27 (Little, Brown, and Company, 1879)Google Scholar. See also Maitz, Earl M., The Unlikely Hero of Dred Scott: Benjamin Robbins Curtis and the Constitutional Law of Slavery, 17 Cardozo L Rev 1995–2016 (1996) (interpreting Curtis' opinions as only mildly antislavery and attributing Curtis' dissent to his view of federalism rather than slavery)Google Scholar.

36. Harriet Beecher Stowe to Henry Ward Beecher, February 1, 1851, quoted in Hedrick, , Harriet Beecher Stowe at 205 (cited in note 4)Google Scholar.

37. Isabella Beecher to Harriet Beecher Stowe, quoted in id at 130.

38. Harriet Beecher Stowe to Gamaliel Bailey, March 9, 1851, quoted in id at 208.

39. Adams, John R., Harriet Beecher Stowe 57 (Twayne Publishers, 1963)Google Scholar.

40. Stowe, Harriet Beecher, Uncle Tom's Cabin v–vi (NAL Penguin, 1966) (Signet Classic Edition)Google Scholar. Because of the frequency of citation of Uncle Tom's Cabin, subsequent page references will be included in the text in parentheses. References in the text to Key are to the first edition of Stowe, A Key to Uncle Tom's Cabin (cited in note 11).

41. See, for example, Fisher, William W., Ideology, Religion, and the Constitutional Protection of Private Property: 1760-1860, 39 Emory L J 65 (1990) (religion-based abolitionism considered as attack on private property)Google Scholar; Nelson, , 87 Harv L Rev at 558 (cited in note 26)Google Scholar.

42. See generally Cover, Robert M., Justice Accused: Antislavery and the Judicial Process 149 note (Yale U Press, 1975) (discussing categories of abolitionist attacks on law)Google Scholar.

43. Adams, F. C., Uncle Tom at Home. A Review of the Reviewers and Repudiators 46 (W.P. HAZARD, 1853, reprinted Books for Libraries Press, 1970)Google Scholar.

44. In her final chapter, Stowe again refers to the shadow of the law: “Nothing of tragedy can be written, can be spoken, can be conceived, that equals the frightful reality of scenes daily and hourly acting on our shores, beneath the shadow of American law, and the shadow of the cross of Christ.” (471) Professor Bilder, providing illumination from a different angle, depicts the shadow cast by slaves over the law. See Bilder, Mary Sarah, The Struggle over Immigration: Indentured Servants, Slaves, and Articles of Commerce, 61 Mo L Rev 743, 748–50 (1996) (employing image of shadow)Google Scholar.

The imaginative world of the antebellum judges was composed of light, dark, and shadows. See, for example, Davis v Ballard, 24 Ky 563, 571 (1829)Google Scholar (“If such be the result, the substance has been lost in the pursuit of a shadow.”); McMullen v Hodge, 5 Tex 34, 74 (1849)Google Scholar (“With us the source of titles to land is as different as light from darkness.”); Bloodgood v Cammack, 5 Stew & P 276, 279 (Ala 1834)Google Scholar (“The right, and the remedy, through the medium of which its enjoyment may be obtained, are as certainly separated, by a line of partition, as light is separated from darkness ….”). They sought to view issues “in every light.” Jones v Crittenden, 14 NC (1 Carolina L Repository) 55 (1812)Google Scholar. When precedent failed to illuminate an answer, the judges “grope]d” their “way through a labyrinth, trying to lay hold of sensible objects to guide” them. Green v Biddle, 21 US (8 Wheaton) 1, 101 (1823) (Johnson, dissenting)Google Scholar. The power of the light of reason was strong. It not only allowed the judges to see; the “rays of the genius” could melt the “frost-work of mere abstractions, constructed” by political theorists. Proceedings and Debates of the Virginia State Convention of 1829-30 124 (Samuel Shepherd & Co, 1830) (remarks of John Scott, Oct 31, 1829)Google Scholar.

45. The illustrations in the first edition further connected law with slave sales. An illustration in an 1852 edition shows the auction of Emmeline in a courthouse. A statute of blindfolded Justice is in the background. See Gossett, Uncle Tom's Cabin, a 10th illustration following page 212, “Emmeline about to be sold to the highest bidder,” (cited in note 4) (reprinting illustration by George Cruikshank from the Cassell edition of 1852).

46. Souther was convicted of murdering his slave, Sam. Sam died after Souther tortured him for twelve hours. See Commonwealth v Souther, 48 Va (7 Gratt) 673 (1851)Google Scholar (affirming conviction of second degree murder). See also Stowe, , Key at 79–82 (cited in note 11)Google Scholar (criticizing Virginia court for convicting Souther of only second degree murder instead of first degree, because twelve hours of torture indicated premeditated intent to kill Sam).

47. Stowe's supporters also pointed to the slave code to show that “the darkest part of it is possible within the law.” McCord, Louisa, Uncle Tom's Cabin, 7 S Q Rev 81, 87 (01 1853)Google Scholar (quoting Contemporary Literature of America in the July 1852 volume of the Westminster Review). William Goodell's The American Slave Code, a four-hundred page compilation of the laws of slavery and examples of punishments meted out under them, likewise supported the abolitionists' argument that the law itself is part of the problem. Goodell closed many of his chapters with an allusion to Joseph Priestley's statement that “[n]o people were ever yet found who were better than their laws, though many have been known to be worse.” See, for example, Goodell, , American Slave Code at 17 (cited in note 19)Google Scholar.

48. See also Stowe, , Key at 71–72; 104; 64–65 (cited in note 11)Google Scholar.

49. See Stowe, , 1 Dred at 102Google Scholar (cited in note 11) (examining reasons why antislavery ministers and politicians failed to act to end slavery).

50. See [William Gilmore Simms?] Book Review, Uncle Tom's Cabin, 18 S Literary Messenger 630, 632 (10 1852)Google Scholar, reprinted in Ammons, Elizabeth, Critical Essays on Harriet Beecher Stowe 1, 11 (G.K. Hall & Co, 1980)Google Scholar. Ammons attributes the review to George Frederick Holmes; however, Charles S. Watson advances a strong argument, based primarily on an inference from F.C. Adams' contemporaneous essay, that the review was actually written by Simms. See Watson, Charles S., Simm's Review of Uncle Tom's Cabin, 48 Am Lit 365–68 (1976)CrossRefGoogle Scholar; Adams, , Uncle Tom at Home at 38 (cited in note 43)Google Scholar.

51. Holmes, , Review of Uncle Tom's Cabin at 632 (cited in note 50)Google Scholar.

52. For representative statements regarding the power that duty exerted on politicians, see Congressional Globe, 31st Cong, 1st Sess, 274 (03 7, 1850)Google Scholar (Senator Webster) (“Every member of every northern Legislature is bound, by oath, like every other officer in the country, to support the Constitution of the United States; and this article of the Constitution, which says to these States, they shall deliver up fugitives from service, is as binding in honor and conscience as any other article. … [T]he North has been too careless of what I think the Constitution peremptorily and emphatically enjoins upon it as a duty.”); Congressional Globe 31st Cong, 2d Sess, 312 (02 22, 1851)Google Scholar (Senator Douglas) (“If the Senator [Salmon Chase of Ohio] had obeyed that decision, and had obeyed the Constitution of the United States according to it, he would have been here the advocate of the fugitive law instead of its enemy, for that would have been his duty ….”); id at 310 (Senator Dodge) (“I think there is danger in permitting any law, and especially one which is but a reenactment of the Constitution itself, to be trampled under foot; and I am therefore in favor of steps being taken such as will at the threshold stop all resistance to the law.”).

53. In the novel Stowe used different grounds to explain the failure to prosecute Legree. George Shelby, Jr., told Legree that “this innocent blood shall have justice. I will proclaim this murder. I will go to the very first magistrate and expose you.” But Legree scoffed at such threats, replying, “I'd like to see you doing it. Where you going to get witnesses?” (447) Legree did not defend his actions as legally justified, but rather believed that they could not be proven. Stowe returned to these issues again. “Let it be remembered that in all Southern States it is a principle of jurisprudence that no person of colored lineage can testify in a suit against a white, and it will be easy to see that such a case may occur, wherever there is a man whose passions outweigh his interests, and a slave who has manhood or principle enough to resist his will.” (468) That injustice was “inherent… in the slave system.” (468) (emphasis in original).

54. Stearns, Edward Josiah, Notes on Uncle Tom's Cabin: Being a Logical Answer to Its Allegations and Inferences Against Slavery as an Institution xx (Lippincott, Grambo & Co, 1853)Google Scholar.

55. Holmes, , 18 S Literary Messenger at 727 (cited in note 1)Google Scholar.

56. Quoted in Drew Faust, Gilpin, A Sacred Circle: The Dilemma of the Intellectual in the Old South, 1840-1860 63 (Johns Hopkins U Press, 1977)Google Scholar.

57. Waddell, , “Uncle Tom's Cabin” Reviewed at 43 (cited in note 3) (emphasis in original)Google Scholar.

58. See, for example, id at 45-46; Bledsoe, Albert Taylor, Liberty and Slavery: or, Slavery in the Light of Moral and Political Philosophy in Elliott, E.N., ed, Cotton is King, and Proslavery Arguments 269, 380 (Pritchard, Abbott & Loomis, 1860)Google Scholar (“[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.”); Harper, William A., Slavery in the Light of Social Ethics, in Elliott, E.N., ed, Cotton is King at 547–626Google Scholar, especially 562; see note 62 (providing expressions of proslavery utilitarian thought); Rodgers, Daniel T., Contested Truths: Keywords in American Politics Since Independence (Basic Books, 1987)Google Scholar (assessing popularity of utilitarian thought in antebellum America). Weighty volumes of proslavery thought, such as Smith's, WilliamLectures on the Philosophy and Practice of Slavery, as Exhibited in the Institution of Domestic Slavery in the United States: with the Duties of Masters to Slaves (Stevenson and Evans, 1856)Google Scholar, sought to provide a dispassionate analysis of slavery based on moral philosophy and religion. Despite the popularity of utilitarian thought, few Southerners cited Bentham, as Thomas Cooper did. See Kilbride, Daniel, Slavery and Utilitarianism: Thomas Cooper and the Mind of the Old South, 69 J S Hist 469–86 (1993)CrossRefGoogle Scholar. Indeed, there was express hostility to Bentham. See, for example, [Legaré, Hugh S.], Principles of Legislation, 7 Southern Rev 261–96 (1831)Google Scholar.

59. See, for example, Faust, , A Sacred Circle 118–31 (cited in note 56) (discussing pro-slavery arguments)Google Scholar; Gillespie, Neal C., The Collapse of Orthodoxy: The Intellectual Ordeal of George Frederick Holmes 178–98 (U Press Va, 1972) (emphasizing importance of slavery in supporting society)Google Scholar. Compare Bowman, Shearer Davis, Masters and Lords: Mid-19th-Century U.S. Planters and Prussian Junkers 184–216 (Oxford U Press, 1993) (linking slavery with conservative social thought)Google Scholar.

60. Adams, Nehemiah, A South-Side View of Slavery 136 (Ticknor & Fields, 4th ed, 1860)Google Scholar.

61. Waddell, , “Uncle Tom's Cabin Reviewed” at 42 (cited in note 3)Google Scholar.

62. See, for example id at 45 (“We have no right to do a positive good to the few, when our act involves a positive injury to the many.”) (emphasis in original); id at 46 (“‘The greatest good to the greatest number’ is beyond the range of [philanthropy's] contemplation.”); McCord, , 7 S Q Rev at 119 (cited in note 47)Google Scholar (“Utopias have been vainly dreamed. That system is the best which, not in theory, but in practice, brings the greatest sum of good to the greatest number.”). See also Faust, , A Sacred Circle 61–86 (cited in note 56) (interpreting antebellum Southern thought on science and religion)Google Scholar; Brugger, Robert J., Beverley Tucker: Head Over Heart in the Old South (Johns Hopkins U Press, 1978)Google Scholar.

63. Woodward, A., A Review of Uncle Tom's Cabin, or an Essay on Slavery 93 (Applegate & Co, 1853)Google Scholar.

64. Calhoun, John C., A Disquisition on Government and a Discourse on the Constitution and Government of the United States, reprinted in Crallé, Richard K., ed, 1 Works of John C. Calhoun 1, 54–55 (Appleton, 1851)Google Scholar. Senator James Henry Hammond of South Carolina expressed similar sentiments. See Congressional Globe, 35th Cong, 1st Sess, Appendix, 69–71 (03 4, 1858)Google Scholar. See also Freehling, William W., Prelude to Civil War: The Nullification Controversy in South Carolina, 1816-1836 49–86 (Harper & Row, 1965)Google Scholar.

65. Stearns, , Notes on Uncle Tom's Cabin at 70–71 (cited in note 54)Google Scholar. Stearns reprinted an article from the Charleston Courier, which depicts the connection between ordered liberty and progress as enabled by the extraordinary “English race”:

The true question is, what is to be the destiny of this quarter of the world: what race is to inhabit and possess it? Shall it be given up (as to a great part of its surface) to barbarism—its inevitable fate under the dominion of the black race—or shall it continue to be possessed by the most improving, enterprising, active and energetic breed of men that have ever founded empires …—by that English race, whose conquests more extensive, whose power more gigantic, and whose Government more perfect than that of Rome …—that English race, of which the original stock has made itself the wonder of mankind—a people entirely peculiar in combining whatever is most dazzling in opulence and power, with well regulated liberty, and mild and equal administration of law—the most magnificent manifestations of the might and the grandeur of civilized life, that the world in any age of it, has ever beheld. Look at Hayti, and contrast it with New Holland!

The slave revolution in Hayti in 1798, in which the slaves freed themselves, overthrew the French government, and established the first state in the Western Hemisphere run by free blacks, was used in antebellum America as an example of what might happen in the South if there were a successful slave revolt. See generally Freehling, , Prelude to Civil War at 16 (cited in note 64)Google Scholar.

66. See William G. Simms, The Morals of Slavery (cited in note 2); Reflections Elicited by Judge Harper's Anniversary Oration Delivered Before the South Carolina Society for the Advancement of Learning, 2 S Literary J and Monthly Mag 375 (1836)Google Scholar; Harper, , Slavery in the Light of Social Ethics, reprinted in Cotton is King 547–626 (cited in note 58)Google Scholar.

67. Carolinian, A [Pringle, Edward J.], Slavery in the Southern States 20 (John Bartlett, 1852)Google Scholar.

68. Id at 21.

69. Id.

70. Holmes, , 18 S Literary Messenger at 727 (cited in note 1)Google Scholar.

71. Id.

72. Waddell, , “Uncle Tom's Cabin” Reviewed at 49 (cited in note 3)Google Scholar.

73. Holmes, , 18 S Literary Messenger at 728 (cited in note 1)Google Scholar. Holmes devotes substantial attention to slave law, to demonstrate its humanity. Such arguments appeared frequently in public discourse. In debate over the proposed repeal of the Fugitive Slave Law in 1852, Senator James of Connecticut wondered “how the cause of philanthropy and humanity is to be promoted by a process tending to produce anarchy, strife, and, perhaps civil war and bloodshed.” Congressional Globe, 32nd Cong, 1st Sess, 1123 (08 23, 1852)Google Scholar.

74. McCord, , 7 S Q Rev at 109 (cited in note 47)Google Scholar. McCord and her ideas about law and slavery deserve an extensive essay. In several essays on slaves and free workers, she constructed a comprehensive picture of the role she envisioned for law in regulating society. See id; McCord, Louisa, British Philanthropy and American Slavery, 14 DeBow's Rev 258–80 (1853)Google Scholar. Together, the writings of Stowe and McCord may help to add depth to our understanding of the ideas about law in circulation in antebellum society and how those ideas were received—and influenced—by members of society usually overlooked when historians discuss legal thought. See Fox-Genovese, Elizabeth, Within the Plantation Household: Black and White Women of the Old South 142 (U North Carolina Press, 1988) (analyzing McCord's thoughts on political economy)Google Scholar; Lounsbury, Richard C. ed, Louisa S. McCord: Political and Social Essays (U Virginia Press, 1995)Google Scholar. Attention to McCord's legal thought may also help continue the process of recovering an understanding of the complex functions white women served in Southern slave society, see generally Clinton, Catherine, The Plantation Mistress: Woman's World in the Old South (Pantheon, 1982)Google Scholar, and how legal ideas are connected to larger culture. See, for example, White, G. Edward, The Marshall Court and Cultural Change, 1815-1835 (Macmillan, 1988)Google Scholar (using ideas of political ideology to understand Marshall Court); Hartog, Hendrik, The Constitution of Aspiration and the “Rights that Belong to Us All,” 74 J Am Hist 1013 (1987)CrossRefGoogle Scholar (examining how ideas expressed in culture interact with judicially recognized rights).

75. Pringle, , Slavery in the Southern States at 22 (cited in note 67) (characterizing abolitionist critique)Google Scholar.

76. Pringle, , Slavery in the Southern States at 11 (cited in note 67)Google Scholar. Compare [Brown, David], The Planter; Or, Thirteen Years in the South 37–40 (H. Hooker, 1853) (discussing Stowe's image of a “brooding shadow”)Google Scholar.

77. Pringle, , Slavery in the Southern States at 46 (cited in note 67)Google Scholar.

78. Id at 9.

79. See id at 22.

80. Id at 25.

81. Holmes, George Frederick, A Key to Uncle Tom's Cabin, 18 S Literary Messenger 321, 328 (1853)Google Scholar.

82. Stearns, , Notes on Uncle Tom's Cabin at 172 (cited in note 54) (quoting Key 40)Google Scholar.

83. Stearns, , Notes on Uncle Tom's Cabin at 54–55 (cited in note 54)Google Scholar. In his book-length response to Uncle Tom's Cabin, A. Woodward flatly contradicted Stowe. “In the eye of the law, there is no difference between the man that murders his slave, and the man that murders his neighbor; and the laws not only punish men for cruel and unnecessary punishment inflicted on slaves, but there are penal statutes against the unnecessary … destruction of horses and other species of property.” Woodward, , A Review of Uncle Tom's Cabin at 70–71 (cited in note 63)Google Scholar. See also Gossett, , Uncle Tom's Cabin and American Culture at 197 (cited in note 4)Google Scholar.

84. See Stearns, , Notes on Uncle Tom's Cabin at 190–205 (cited in note 54)Google Scholar.

85. 48 Va (7 Gratt) at 673 (cited in note 9).

86. 13 NC (2 Dev) at 263 (cited in note 8).

87. Stearns, , Notes on Uncle Tom's Cabin at 195–6 (cited in note 54) (quoting 13 NC (2 Dev) at 268 cited in note 8))Google Scholar.

88. Id at 199.

89. Id at 30-31.

90. Id at 30.

91. McCord, , S Q Rev at 88 (cited in note 47)Google Scholar.

92. Pringle, , Slavery in the Southern States at 12 (cited in note 67)Google Scholar. See also Kohl, Lawrence Frederick, The Politics of Individualism: Parties and the American Character in the Jacksonian Era 163 (Oxford U Press, 1989)Google Scholar (distinguishing between corruption of morals caused by law and corruption characterized by failure to follow the law). The position of both Pringle and McCord that laws were not responsible for hardship and Stowe's position that laws were themselves evil represent one of the fundamental, though understudied, distinctions of antebellum thought. See generally Howe, , Political Culture of the American Whigs at 219–20Google Scholar (cited in note 12) (discussing relationship of reason, sentiment, and law); Miller, , The Life of the Mind in America at 214–18 (cited in note 5)Google Scholar (virtue of law, in the mind of jurists like James Kent, is the negative power it influences over the American people by caging their passions). For other examples of the distinction, see Goodell The American Slave Code in Theory and Practice (cited in note 19); Tucker, Nathan Beverley, A Series of Lectures on the Science of Government, 313–14 (Carey & Hart, 1845)Google Scholar (characterizing the belief that “love must perish as soon as restraints of law are applied to it” as a “fatal error in morals and politics”); id at 42 (virtue of society is that it secures “to each citizen the tranquil enjoyment of life, liberty and property” through law).

Similarly, Americans justified their alteration of English property law based on the corruption wrought by feudal remnants in the law. See, for example, Jefferson, Thomas, Autobiography in Peterson, Merrill D., ed, Thomas Jefferson: Writings 44 (Library of America, 1984)Google Scholar (considering laws protecting religious freedom and abolishing entail and primogeniture “as forming a system by which every fibre would be eradicated of antient or future aristocracy; and a foundation laid for a government truly republican”); Shorter v Smith, 9 Ga 517, 532 (1851)Google Scholar (“[W]ould it not be strange for the Courts of this country at this day, to enforce a doctrine which had its origin in the feudal system; a system, justly characterized, as aggregating to itself all privileges, which increased the mass of wealth in the feudal Lords, at the expense of the public?”).

93. Pringle, , Slavery in the Southern States at 13 (cited in note 67)Google Scholar. See also id at 12, 24. Historians often comment on the ways that Southern law left the control of slaves to their masters' sentiments. See, for example, Tushnet, Mark V., The American Law of Slavery, 1810-1860 54–65 (Princeton U Press, 1981)Google Scholar (viewing State v Mann, 13 NC (2 Dev) 263 (1829))Google Scholar as relegating control of slaves to the sphere of sentiment); Oakes, James, Slavery and Freedom: An Interpretation of the Old South 166 (Knopf, 1990)Google Scholar (“The conflicts between Lydia and John Mann … were not isolated outbreaks of conflicting principles but emblematic demonstrations of the problem of slave resistance in a liberal society. The smallest incidents of refusal could exacerbate the fundamental tension between the master's authority and the power of the state.”). Compare Elkins, Stanley M., Slavery: A Problem in American Institutional and Intellectual Life 37–52 (U Chicago Press, 1959)Google Scholar (interpreting Mann as reflecting the control that masters held over their slaves); Genovese, Eugene D., Roll, Jordan, Roll: The World the Slaves Made 35–36 (Pantheon, 1974) (same)Google Scholar.

Considerations of humanity were also given domain outside of slave law. In the area of vested rights, for instance, United States Supreme Court Chief Justice Roger Taney relegated the state's power to determine the remedies for violations of contract to considerations of humanity. See Bronson v Kinzie, 42 US (1 How) 311, 315 (1845)Google Scholar (“Regulations of this description have always been considered, in every civilized community, as properly belonging to the remedy, to be exercised or not by every sovereignty, according to its own views of policy and humanity.”). Judges carved out certain areas in which moral sentiments were free from law; in those areas, states and individuals could act according to their own inclinations. See, for example, Lapsley v Brashears and Ban, 14 Ky (4 Litt) 47, 53–55 (1823)Google Scholar (Owsley) (distinguishing moral and legal obligations to abide by a contract); Grayson v Lilly and Bullock, 23 Ky (7 Mon) 16, 12 (1828) (same)Google Scholar. Occasionally, however, judges argued that the “rights of humanity” ought to have legal force. See, for example, Ogden v Saunders, 25 US (12 Wheat) 213, 283 (1825)Google Scholar (Johnson, dissenting) (“For it is among the duties of society to enforce the rights of humanity; and both the debtor and the society have their interests in the administration of justice, and in the general good; interests which must not be swallowed up and lost sight of while yielding attention to the claim of the creditor.”).

94. Holmes, , 18 S Literary Messenger at 728 (cited in note 1)Google Scholar.

95. Adams, , A South-Side View of Slavery at 164–68 (cited in note 60)Google Scholar.

96. Pringle, , Slavery in the Southern States at 11 (cited in note 67)Google Scholar.

97. Id at 21.

98. Much of the proslavery fiction attempted to portray amicable relations between masters and slaves rather than to address Stowe's critique of law directly. Aunt Phillis, a character in Mary Eastman's Aunt Phillis's Cabin, for example, rebuffed an attempt by abolitionists to help her escape while visiting Philadelphia with her owner. Eastman, Mary, Aunt Phillis's Cabin (Lippincott, Grambo, 1852)Google Scholar. See also Adams, , A South-Side View of Slavery at 129–31 (cited in note 60)Google Scholar.

For discussions of the proslavery fictional responses, see Moss, Elizabeth, Domestic Novelists in the Old South: Defenders of Southern Culture (Louisiana State U Press, 1992)Google Scholar; Tandy, Jeannette Reid, Pro-Slavery Propaganda in American Fiction of the Fifties, 21 S Atl Q 41–50, 170–78 (1922)Google Scholar; Taylor, William L., Cavalier and Yankee: The Old South and American National Character (G. Braziller, 1961)Google Scholar; Sundquist, Eric J., The Literature of Expansion and Race, in Bercovitch, Sacvan, ed, The Cambridge History of American Literature, 1820-1865, 125, 264–67 (Cambridge U Press, 1995)Google Scholar. Besides Eastman, the responses included: Butt, Martha Haines, Antifanaticism: A Tale of the South (Lippincott, Grambo, 1853)Google Scholar; Chase, Lucien B., English Serfdom and American Slavery or, Ourselves as Others See Us (H. Lang & Brother, 1854)Google Scholar; Criswell, Robert, “Uncle Tom's Cabin” Contrasted with Buckingham Hall, the Planter's Home, or a Fair View of Both Sides of the Slavery Question (D. Fanshaw, 1852)Google Scholar; Hentz, Caroline Lee, The Planter's Northern Bride (Peterson, 1854)Google Scholar; Mcintosh, Maria J., The Lofty and the Lowly; or, Good in All and None All-Good (Appleton 1854)Google Scholar; Page, John W., Uncle Robin: In His Cabin in Virginia, and Tom Without One in Boston (J. W. Randolph, 1853)Google Scholar; Randolph, J. Thornton [Peterson, Charles J.], The Cabin and Parlor; or, Slaves and Masters (T.B. Peterson, 1852)Google Scholar; Rush, Caroline E., The North and South; or Slavery and its Contrasts: A Tale of Real Life (Crissy & Markley, 1852)Google Scholar; Schoolcraft, Mary Howard, The Black Gauntlet: A Tale of Plantation Life in South Carolina (J.B. Lippincott, 1860)Google Scholar; Smith, William L. G., Life at the South: or “Uncle Tom's Cabin” as It Is: Being Narratives, Scenes, and Incidents in the Real “Life of the Lowly” (G. H. Derby & Co, 1852)Google Scholar; Thorpe, Thomas B., The Master's House: A Tale of Southern Life (T. L. McElrath, 1854)Google Scholar.

99. Chapman continued: “Now, if an Abolitionist sees a slave knocked over, he runs home to tell his mammy; it's enough to bring fire and brimstone, and hail, and earthquakes on the whole country.” Eastman, , Aunt Phillis's Cabin, at 95 (cited in note 98)Google Scholar.

100. Id at 117.

101. Id at 133.

102. Id.

103. Simms, W. Gilmore, Woodcraft; or, Hawks about the Dovecote: a Story of the South at the Close of the Revolution (Lovell, Coryell, 1856)Google Scholar.

104. Woodward, , Review of Uncle Tom's Cabin at 100 (cited in note 63)Google Scholar.

105. See Gienapp, William E., The Origins of the Republican Party, 1852-1856 354 (Oxford U Press, 1987)Google Scholar (showing that the number of voters motivated by moral outrage over slavery was limited, but crediting Stowe with increasing their ranks).

106. Donald, David Herbert, Lincoln 542 (Simon & Schuster, 1995)Google Scholar; Foner, , Free Soil, Free Labor, Free Men at 301–17 (cited in note 30)Google Scholar (depicting moral outrage over slavery as relatively unimportant part of Republican ideology). But see Wilson, Edmund, Patriotic Gore: Studies in the Literature of the American Civil War 3–52 (Oxford U Press, 1962)Google Scholar (placing Stowe in the center of the Civil War debate); Mathews, Glenna, “Little Women” Who Helped Make this Great War, in Boritt, Gabor S., ed, Why the Civil War Came 33–49 (Oxford U Press, 1996)Google Scholar (suggesting ways that women shaped the political discourse and ethical culture leading to Civil War).

107. The book sold 300,000 copies in America in its first year. See Gossett, , Uncle Tom's Cabin and American Culture at 164 (cited note 4)Google Scholar.

108. At least Stowe so hoped in 1851 when she wrote the scene. By 1855, however, her optimism that she might change law through appeal to sentiment had declined. In her novel Dred she demonstrated that in the South cold legal thinking, reinforced by religious institutions, overcame emotion. Judge Clayton despaired that although many individuals sought reform, “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.” Stowe, , Dred at 76 (cited in note 11)Google Scholar. Emotional appeal failed to move Southern politicians, lawyers, and judges; there was “little to hope from any outburst of … emotional nature.” Id at 26.

109. See Perry, Radical Abolitionism: Anarchy and the Law of God (cited in note 19) (cataloging many of the radical ideas of abolitionists that never became accepted by mainstream American culture, including anarchy and free love); Walters, , American Reformers at 216 (cited in note 12)Google Scholar (noting that many of the reformers' greatest ideas “were ground up in the machinery of modern times”).

110. Assessing the amount of power that literature exerts over human thought is necessarily speculative. A number of important studies of antebellum America have, however, made substantial progress in determining the influence of print generally and in reminding us that literature's power often comes from rechanneling ideas and emotions already present in a culture. See generally Davidson, Cathy N., Revolution and the Word: The Rise of the Novel in America (Oxford U Press, 1986)Google Scholar; Baym, Nina, Novels, Readers, and Reviewers: Responses to Fiction in Antebellum America ch 2, 7 (Cornell U Press, 1984)Google Scholar; Tompkins, , Sensational Designs at 122–46 (cited in note 4)Google Scholar (assessing the “sentimental power” of Uncle Tom's Cabin). Scholars are reassessing the particular ways sentiment shaped political and social thought in the nineteenth century. See, for example, Wardley, Lynn, Relic, Fetish, Femmage: The Aesthetics of Sentiment in the Work of Stowe in Samuels, Shirley, ed, The Culture of Sentiment: Race, Gender, and Sentimentality in Nineteenth-Century America 203–20 (Oxford U Press, 1992)Google Scholar; Shirley Samuels, The Ideality of Slavery in id at 157-71. Other, specialized studies have linked sentimental fiction to the language used by reformers, suggesting ways that fiction channeled public thought. See, for example, Gordon, Sarah Barringer, “Our National Hearthstone”: Anti-Polygamy Fiction and the Sentimental Campaign Against Moral Diversity in Antebellum America, 8 Yale J L & Hum 295 (1996)Google Scholar.

111. Stowe, , The Mayflower at xii (cited in note 10)Google Scholar. George Frederick Holmes went even further. He thought, “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.” Holmes, , 18 S Literary Messenger at 724 (cited in note 1)Google Scholar.

112. Tucker, , A Series of Lectures on the Science of Government at 416 (cited in note 92)Google Scholar. See also Holmes, , 18 S Literary Messenger at 724 (cited in note 1)Google Scholar (likening Action to a magic wand). Literary critics attributed substantial power to literature to touch human passions and thus influence how people think and act. William Gilmore Simms used that perceived power to call for production of a distinctly American literature. He warned about the influence of ideas, “taught us through the medium of a foreign, and perhaps hostile and insulting teacher,” English art and literature. Americanism in Literature, in Simms, William Gilmore, Views and Reviews in American Literature and Fiction 7, 13–14 (Wiley and Putnam, 1845) (C. Hugh Holman, ed, Harvard U Press, 1962)Google Scholar.

113. Waddell, , “Uncle Tom's Cabin” Reviewed at 49 (cited in note 3)Google Scholar.

114. Simms, , 18 S Literary Messenger at 638 (cited in note 50)Google Scholar. Recently Professor Gordon has demonstrated the influence that sentimental fiction exercised in shaping attitudes towards polygamy. See Gordon, , 8 Yale J L & Hum (cited in note 110)Google Scholar. Her work portrays in a detailed fashion the power of fiction in a reform movement close in time to abolitionism. See also Korobkin, Laura Hanft, The Maintenance of Mutual Confidence: Sentimental Strategies at the Adultery Trial of Henry Ward Beecher, 1 Yale J L & Hum 1 (1995) (tracing the use of sentimental imagery on jurors in a post-bellum trial)Google Scholar.

115. Congressional Globe, 32nd Cong, 1st Sess, Appendix, 1111 (08 26, 1852)Google Scholar. University of Virginia Professor Albert Bledsoe called the widely circulated speech, which Sumner delivered to the Senate August 26,1852, “the most elaborate speech ever made … on the subject of the Fugitive Slave Law.” Bledsoe, Albert, Liberty and Slavery, reprinted in Elliott, ed, Cotton is King at 422–3 (cited in note 58)Google Scholar.

116. Id. (emphasis in original). Jurists also recognized the power of sentiment. In interpreting the rights of Texans who traced their title to grants from the Mexican government, Justice Lipscomb interpreted the law in light of public opinion, which favored protection of property rights of conquered citizens. “The masses of the people have felt their strength, and made the tyrants feel it too, and in this moral regeneration a more elevated sense of right, of justice, and the laws of humanity has asserted an ascendency over the cruelty and despotism of the past.” McMullen v Hodge, 5 Tex 34, 71 (1849)Google Scholar. Proslavery jurists likewise harnessed the imagery of sentiment of the people. Chief Justice Roger B. Taney warned in Dred Scott about the consequences of failing to preserve a balance of power among the states and the federal government. If states' interests were not preserved, there might be a loss of the “community of interest, sentiment, and feeling, which are so essential to the support of the Union.” Scott v Sandford, 60 US (19 How) 393, 516 (1857)Google Scholar.

117. Congressional Globe, 32nd Cong, 1st Sess, Appendix at 1112.

118. Id. Sumner's eloquence generated little in the way of support in the Senate. His attempt to repeal the Fugitive Slave Act of 1850 garnered only three votes besides his own. See Potter, , The Impending Crisis at 139 (cited in note 28)Google Scholar.

119. In an analysis of the antebellum South, Professor William Fisher has recently reminded us of the various ways that legal tradition and current conditions combined to produce the slave law. He observed that some historians believe that American slave law originated from a variety of sources—a dash of villenage, a splash of Roman law (strained through the civil law tradition), a sizable dollop from the slave code of Barbados, and a large portion of the common law and equitable principles in force in England.” Fisher, William W., Ideology and Imagery in the Law of Slavery, 68 Chi Kent L Rev 1051, 1056 (1993)Google Scholar.

120. Congressional Globe, 31st Cong, 1st Sess, 1858 (08 19, 1850)Google Scholar. See also id at 1593 (Aug 20, 1850) (Senator Winthrop) (“[F]or the faithful observance and efficient operation of any law, it is essential that its provisions should not do violence to the opinions and principles of the people over whom it is to operate.”).

121. For references to the authority of the law and the damage it suffered from abolitionist attacks on the Fugitive Slave Law, see Congressional Globe 31st Cong, 1st Sess, 312 (02 22, 1851)Google Scholar (Senator Douglas) (majesty of the law); Congressional Globe 31st Cong, 1st Sess, 1522 (08 20, 1851)Google Scholar (Senator Pratt) (“The law is a nullity because the will of the people is against it ….”); Congressional Globe 31st Cong, 1st Sess, 312 (02 22, 1851)Google Scholar (Senator Turney) (“I do not believe this law can be faithfully executed where all the feelings and sentiments of the people among whom it is to be executed are averse to it.”); Congressional Globe 31st Cong, 2nd Sess, Appendix 253 (12 2, 1850)Google Scholar (Representative Josuah Giddings) (“[P]ublic sentiment, with an enlightened and patriotic people is stronger than armies or navies; that [the President] himself is but the creature of the people's will- their servant-elected to execute their purposes.”); Moore v Illinois, 55 US (14 How) 13, 18 (1853)Google Scholar (Grier) (“Experience has shown, also, the results [of helping slaves escape] … are not only to demoralize their citizens who live in daily and open disregard of the duties imposed upon them by the Constitution and laws, but to destroy the harmony and kind feelings which should exist between citizens of this Union ….”). See generally Stewart, , Holy Warriors at 147–77 (cited in note 13) (assessing impact of abolitionist attacks on slavery)Google Scholar.

122. Much more work remains to be done to assess Stowe's impact on Northern thought. See generally Gossett, Uncle Tom's Cabin in American Culture (cited in note 4) (discussing Stowe's impact on the American mind).

For discussion of other American authors addressing the conflict between law and humanity, see Miller, , The Life of the Mind at 99–104 (cited in note 5)Google Scholar; Fisher, , Hard Facts at 94–95 (cited in note 14)Google Scholar. William Dunlap's play André broached the question whether it was proper for General Washington to order the execution of British Major André for bribing Benedict Arnold, because André possessed “every virtue of humanity” and because he acted “only … as duty prompted.” Dunlap, William, André (New York, 1798)Google Scholar reprinted in Quinn, Arthur Hobson, ed, Representative American Plays 83, 96 (Appleton-Century-Crofts, 6th ed, 1938)Google Scholar. James Waddell pointed out the parallel between Major André and Uncle Tom's Cabin in his review. Waddell, , “Uncle Tom's Cabin” Reviewed at 42–43 (cited in note 3)Google Scholar. See also Simms, William Gilmore, Benedict Arnold as a Subject for Fictitious Story, in Views and Reviews 55, 68–73 (cited in note 112) (discussing fate of André)Google Scholar.

123. For a sampling of the approaches to judges' reasoning styles see Kennedy, Duncan, The Rise and Fall of Classical Legal Thought, 1850-1940 ch 5 (unpublished manuscript, 1975)Google Scholar (explaining contours of “Classical Legal Thought”); Horwitz, Morton J., The Transformation of American Law, 1780-1860 253–66 (Harvard U Press, 1977)Google Scholar (formalism emerged to protect legal rules that benefit commercial interests from attack or re-examination); Pound, Roscoe, The Formative Era of American Law (Little, Brown, 1938)Google Scholar; Summers, Robert S., Instrumentalism and American Legal Theory (Cornell U Press, 1982)Google Scholar; Posner, Richard A., A Theory of Negligence, 1 J L Stud 29, 32–6 (1972)Google Scholar (explaining social function of liability for negligent acts after Civil War, implying that judges' decisions derived from their economic understandings). For a fine recent treatment, which aims to define precisely the elements of formalism and instrumentalism, see Quevedo, Steven M., Formalist and Instrumentalist Legal Reasoning and Legal Theory, 73 Cal L Rev 119 (1985)CrossRefGoogle Scholar.

124. See Nelson, , 87 Harv L Rev at 566 (cited in note 26)Google Scholar; Cover, Justice Accused (cited in note 42). Grant Gilmore adopts Cover's argument on the rise of formalism in The Ages of American Law 37–39 (Yale, 1977)Google Scholar.

125. Nelson, , 87 Harv L Rev at 516 (cited in note 26)Google Scholar. Nelson, drawing upon an essay that formed the basis for Horwitz's Transformation of American Law (cited in note 123), Horwitz, Morton J., The Emergence of an Instrumental Conception in American Law 1780-1820, in Bailyn, Bernard and Fleming, Donald, eds, Law in American History (Little, Brown, 1971)Google Scholar, sees instrumentalism as related to the belief that law “was essentially mutable and transitory in nature.” Nelson, , 87 Harv L Rev at 520 (cited in note 26)Google Scholar. Instrumentalism rested upon the understanding that the common law adapted to the progress of society. Id at 521. Consequently, courts reexamined precedents and sought to remake the law to satisfy current needs. That definition seems to parallel the reexamination of principles that Emerson called for in Nature. See Emerson, Ralph Waldo, Nature in 1 Emerson's Complete Works 13 (Houghton, Mifflin, 1883)Google Scholar; compare Miller, , The Life of the Mind at 129–30 (cited in note 5)Google Scholar (contrasting Emerson with [Hugh S. Legaré], Kent, James, Kent's Commentaries on American Law, 2 Southern Review 72–113 (1828))Google Scholar. The judges' reexamination of principles through the grand style, which might undermine that which was previously solid, resembles the role Emerson envisioned for the scholar. See The Method of Nature in 1 Emerson's Complete Works 183, 185Google Scholar; Lecture on the Times, in 1 id at 246, 248 (chronicling ways that contemporaries reformulate and reexamine their heritage). A disciple of Emerson might term the movement toward the grand style of reasoning “the transcendence of American law.” A judge, rewriting the common law, might agree that “the world is new, untried. Do not believe the past. I give you the universe, a virgin today.” Literary Ethics in id at 162.

126. Nelson, 87 Harv L Rev at 566 (cited in note 26).

127. Nelson characterizes the conflicting visions as follows: “[A]dvocates of compromise with slavery rested their case upon instrumentalist arguments about what was politically wise and economically expedient, whereas opponents of slavery made essentially moralistic arguments about the law of God and the rights of man.” Nelson, , 87 Harv L Rev at 543 (cited in note 26)Google Scholar.

128. See, for example, Cover, Justice Accused at 119-23, 197-200, 232-36 (cited in note 42). Stowe's fictional judge, Judge Clayton, employed a “judicial can't” in explaining why he failed to reform North Carolina slave law in her novel Dred. He thought that “A Judge can only perceive and declare. What I see, I must speak, though it go against all my feelings and all my sense of right.” Stowe, , 1 Dred at 439 (cited in note 11)Google Scholar. Stowe also portrayed religious leaders as confined in the course they could take in public. See 2 id at 76 (fictional Presbyterian minister refusing to lobby to end slavery because it would be futile).

129. See, for example, Binney, Horace, Eulogy for Chief Justice Tilghman in Sharswood, George, An Essay on Professional Ethics 41 (T. & J.W. Johnson & Co, 1896)Google Scholar (“There is not a line from his pen that trifles with the sacred deposit in his hands by claiming to fashion it according to a private opinion of what it ought to be. Judicial legislation he abhorred … as an implication of his conscience. His first inquiry in every case was of the oracles of the law for their response; and when he obtained it, notwithstanding his clear perception of the justice of the cause, and his intense desire to reach it, if it was not the justice of the law, he dared not to administer it.”); Bledsoe, , Liberty and Slavery at 456 (cited in note 115) (urging that legislators and judges follow their oath to uphold the Constitution)Google Scholar. See also Craig Klafter, Evan, Reason Over Precedents: Origins of American Legal Thought chs 3-4 (Greenwood, 1993) (antebellum legal education employed systematic, scientific approach to law)Google Scholar; LaPiana, William P., Logic and Experience: The Origin of Modern American Legal Education 29–38 (Oxford U Press, 1994) (detailing importance of science in antebellum legal thought)Google Scholar; Miller, , The Life of the Mind at 99–104 (cited in note 5) (examining conflict between law and justice)Google Scholar.

130. Professor Mary Bilder has reminded me that antislavery judges conferred legitimacy on the Fugitive Slave Act by accepting it and then broadcasting to the world their opinion that the law must be followed. In that way, antislavery jurists may have been some of the most influential supporters of slavery, because they may have helped convince others to support the law. Questions have been raised about how dedicated some “antislavery” jurists were to the antislavery cause. See Holden-Smith, Barbara, Lords of the Lash, Loom, and Law: Justice Story, Slavery, and Prigg v Pennsylvania, 78 Cornell L Rev 1086 (1993)Google Scholar; Finkelman, Paul, Story Telling on the Supreme Court: Prigg v Pennsylvania and Justice Joseph Story's Judicial Nationalism, 1994 S Ct Rev 247Google Scholar.

Proslavery contemporaries recognized the power that antislavery advocates' arguments could have in convincing others about the legal correctness of slavery. Wendell Phillips, for example, so effectively showed the proslavery nature of the Constitution in The Constitution a Proslavery Compact: Extracts from the Madison Papers (American Antislavery Society, 1845Google Scholar) that Alabama politician John A. Campbell, soon to be a Justice on the United States Supreme Court and later Attorney General of the Confederacy, wrote to Senator John C. Calhoun of South Carolina, that “we might circulate [it] to great advantage excluding a few paragraphs.” John A. Campbell to John C. Calhoun, Nov. 20, 1847, quoted in Wiecek, William M., The Sources of Antislavery Constitutionalism in America, 1760-1848 240 (Cornell U Press, 1977)Google Scholar.

131. Cover, , Justice Accused at 200 (cited in note 42)Google Scholar.

132. There is evidence that judges recognized the constellation of interests of humanity that Stowe believed would be important in fashioning an antislavery jurisprudence, and realized that they could interpret the law in light of those principles. See Eisgruber, Christopher L. M., Justice Story, Slavery, and the Natural Law Foundations of American Constitutionalism, 55 U Chi L Rev 273, 325 (1988)CrossRefGoogle Scholar. Nevertheless, those general principles were insufficient, given the judges' backgrounds and the political and religious constraints surrounding them, to allow them to break free of the gravitational pull of their perceived duty to law. See generally Phillips, , The Constitution a Proslavery Compact 15–26 (cited in note 130)Google Scholar (listing constraints on judges). But see Sebok, Anthony J., Judging the Fugitive Slave Acts, 100 Yale L J 1835 (1991)CrossRefGoogle Scholar (suggesting, from the perspective of twentieth-century jurisprudence, that antislavery judges had viable alternatives to proslavery law).

133. For instance, Stowe discussed a tort case in which a mistress whose slave was injured by attack of another slave sued the attacker's owner. She questioned why the injured slave should be delivered to the owner of the attacker. “In the course of the decision, the judge remarks, with that calm legal explicitness for which many decisions of this kind are remarkable, that ‘[t]he principle of humanity, which would lead us to suppose that the mistress, whom he had long served, would treat her miserable blind slave with more kindness than the defendant, to whom the judgment ought to transfer him, cannot be taken into consideration in deciding this case.’” (Key 74).

134. State v Mann, 13 NC (2 Dev) at 264 (cited in note 8)Google Scholar.

135. The word “imperative” is frequently used in antebellum law to describe the sense of compulsion that judges felt in making decisions. See, for example, Prigg v Pennsylvania, 41 US (16 Pet) 539 624–25 (1842)Google Scholar (Story) (“Consequences like these show, that the nature and objects of the provisions imperiously require, that to make it effectual, it should be construed to be exclusive of state authority.”); Cherokee Nation v Georgia, 30 US 1, 48 (1831) (Marshall)Google Scholar (“I have no power to act and imperious duty compels me to stop at the portal…”); Wright v Weatherly, 15 Tenn (7 Yer) 367, 380 (1835)Google Scholar (“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.”); Shorter v Smith, 9 GA at 532 (cited in note 92) (Lumpkin)Google Scholar (“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.”) (emphasis in original). Compare Waddell, , “Uncle Tom's Cabin” Reviewed at 67 (cited in note 3)Google Scholar (“Should a sense of imperative duty ever induce this distinguished lady to write another book on slavery, we would suggest that one defining and enforcing the relative duties growing out of this ‘sinful relation’ ….”) (emphasis in original).

Judges also invoked the phrase “duty” to explain the restraints on their latitude in deciding cases. See, for example, United States v Rogers, 45 US 567, 572 (1846)Google Scholar (“It is our duty to expound and execute the law as we find it, and we think it too firmly and clearly established to admit of dispute, that the Indian tribes residing within the territorial limits of the United States are subject to their authority ….”); Commercial Bank of Rodney v Mississippi, 12 Miss (4 S & M) 439, 491 (1845)Google Scholar (“Duty prompts us, when discovered, to follow whithersoever it may lead.”).

136. In State v Ephraim, 19 NC (2 Dev) 162, 166 (1836)Google Scholar, for example, Ruffin refused to add to grounds for excusing jurors. “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 … that the rule … ought therefore to be altered.” See also State v Samuel, 19 NC (2 Dev) 177, 182 (1836)Google Scholar (Ruffin) (applying legislation governing slave marriages and noting that “the rule[s]… must be laid down by the makers of the law, and cannot be interpolated by its expounders”); State v Cantey, 20 SC (2 Hill) 614, 615 (1835) (Harper) (court would be “making, instead of declaring law”)Google Scholar.

137. See Hoeflich, M. H., Law & Geometry: Legal Science from Liebniz to Langdell, 30 Am J Legal Hist 95 (1986)CrossRefGoogle Scholar (portraying legal thought, particularly in South Carolina, as deductive and based on “mathematical models,” particularly geometry); Holifield, E. Brooks, The Gentlemen Theologians: American Theology in Southern Culture, 1795-1860 127–54 (Duke U Press, 1978)Google Scholar (explaining the “exalted position” of moral philosophy, which emphasized sensibility and reason, in the antebellum South); compare Kuklick, Bruce, Churchmen and Philosophers From Jonathan Edwards to John Dewey 145 (Yale U Press, 1985)Google Scholar (“The collegians elucidated man's obligations through introspection, and extrapolated from the mind's powers appropriate rules for ordering social life and political economy.”).

Historians of religious thought more generally stress the importance of reason in antebellum thought and its connection to political thought. See Bozeman, Theodore Dwight, Protestants in an Age of Science: The Baconian Ideal and Antebellum American Religious Thought (U North Carolina Press, 1977)Google Scholar; Bozeman, Theodore Dwight, Inductive and Deductive Politics: Science and Society in Antebellum Presbyterian Thought, 64 J Am Hist 704–22 (1979)CrossRefGoogle Scholar; Farmer, , The Metaphysical Confederacy at 77–121 (cited in note 15)Google Scholar; Genovese, , Slaveholders' Dilemma at 94 (cited in note 15)Google Scholar.

138. A variety of strands of thought merged in judicial formalism. See Horwitz, Morton J., The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy 9–31 (Oxford U Press, 1992)Google Scholar (discussing numerous ideologies contributing to rise of formalism). Stowe's critique points to one of them and suggests that abolitionists were not directly responsible for the development of formalism. For example, Henry Ward Beecher told his congregation in 1851 that the call for support of the Fugitive Slave Law was based on mechanical reasoning:

And this doctrine, so taught and so sent, is nothing else than the doctrine of kings and despots, of the divine right of rulers, of non-resistance to power, however, oppressive.… It is because the common people are trodden down, because they have given up their consciences to priests and magistrates; and if this comes to be the custom in America, then all hope of freedom is lost.

Beecher, Henry Ward, American Slavery, reprinted in Howard, John R., ed, Patriotic Addresses 178, 194 (Fords, Howard & Hulbert, 1887)Google Scholar. Emerson, in speaking about literary studies, counseled against mechanical reasoning. “Translate, collate, distil all the systems, it steads you nothing; for truth will not be compelled in any mechanical manner.” Emerson, Ralph Waldo, Literary Ethics, in 1 Emerson's Complete Works 149, 166 (cited in note 125)Google Scholar.

139. Waddell, , “Uncle Tom's Cabin” Reviewed at 43 (cited in note 3) (emphasis in original)Google Scholar.

140. Compare Holmes, , 18 S Literary Messenger at 723 (cited in note 1)Google Scholar (“It would seem almost a hopeless waste of time to show … how human sympathies have been operated on to encourage and sanctify most unholy practices …”).

141. Meck, Alexander B., Americanism as Literature (Burroughs & James, 1844)Google Scholar (quoted in Simms, , Americanism in Literature at 17 (cited in note 112))Google Scholar.