The Faculty Lounge

New Hybrid Chapbook on Homelessness & Mental Health

I'm excited to announce that my hybrid chapbook, A Registry of Survival, is out from Last Word Press.  It explores my relationship with my mother during a time when she was homeless.  It also describes the strain on our relationship caused by her mental health struggles.  There is a legal angle too, as the work discusses teaching Property and the course's connection to what my mother was going through when she became homeless. Author Rebecca Brown commented that "It’s like the words of A Registry of Survival were extracted from the heart, like clean sharp needles pulling out, but true and hard and needing to be said."

12 Years a Slave as A Key to Uncle Tom's Cabin

I want to talk about Twelve Years a Slave as another of the non-fiction "keys" to Uncle Tom's Cabin.  One of the many things intrigues me about Twelve Years is that it was dedicated to Harriet Beecher Stowe and the dedication mentions that the book is yet another Key to Uncle Tom's Cabin, which is a reference to the non-fiction book that Stowe published in 1853 to provide support for her novel.  (Little bit of background on the timing here -- Stowe refers to newspaper accounts of Solomon Northrop's ordeal [that's how she spelled his name] in A Key.  Then, later in 1853, after A Key came out, Twelve Years a Slave appeared.)  One of the things that really interests me about Stowe -- and the writing of many white abolitionists -- is the centrality of law to their stories.  Stowe wonders whether people are better than their laws.  (I wrote some about this nearly 20 years ago.)  Several times in William Goodell's American Slave Code in Theory and Practice there is a statement to the effect that people may be better than their laws, but seldom are. This lesson appears in Twelve Years as well -- when Solomon's first owner, William Ford, who was depicted as less malicious than many slave owners (in fact, as kind) -- ends up selling Solomon.  There's been a lot of talk of late about the "authenticity" of the narrative.  This raises difficult questions of interpretation of slave narratives, as Eric Herschthal pointed out in the New York Times last week.  

The publisher of Twelve Years, Derby and Miller, had published a year before William Hosmer's antislavery critique of the slave law, The Higher Law, in Its Relations to Civil Government: With Particular Reference to Slavery, and the Fugitive Slave Law.  One of the things that I'm really wondering about now is how much Twelve Years was designed to fit within the white abolitionist story about the centrality of law to slavery.  I'm looking forward to talking a little more soon about jurisprudence in Twelve Years.

Sleepy Hollow Cemetery Dedication Address

This is about the Sleepy Hollow Cemetery in Concord Massachusetts, not @SleepyHollowFox.  Though I'm sure it would get a heck of a lot more attention if it were about the television show.  So far in talking about cemetery dedication addresses from Joseph Story's 1831 address at Mount Auburn to Lincoln's in November 1863 I have focused on the consistency of themes in them.  One of those themes is the proper burial of the dead as a duty owed by the living.  Another is the cemeteryas a sacred trust, which teaches values of patriotism and Union.  Another is the ways that the cemetery provides a model of an ordered republic.  The addresses portray the cemetery as part of a world of Whig thought of order, beauty, and private action for public good.  

Now I want to focus on some distinctions between the addresses.  I'll start with Ralph Waldo Emerson's 1855 address at Sleepy Hollow in Concord.  This is second only to Lincoln's address in terms of literary merit (and maybe, but I don't think so, Story's 1831 address at Mount Auburn).  As in everything else, Emerson was quite the iconoclast, for the Sleepy Hollow address is different from the others.  It has substantially fewer references to God than the others; it is more focused on the beauty of nature (it uses one of Emerson's favorite words, sublime, several times); it is more forthright than many addresses in its acknowledgement that cemeteries are about the present.  For instance, after discussing that individuals die even as human society continues and that it is impossible to preserve bodies for long, Emerson says that "our people accepting this lesson from science, yet touched by the tenderness which Christianity breathes, have found a mean in the consecration of gardens."  Emerson alludes to the "simultaneous movement" in "a hundred cities and towns" to establish rural cemeteries.  His focus is on the beauty of nature and the longevity of trees.  "What work of man will compare with the plantation of a park," he asked?   This address is classic transcendentalism -- and thus has less to do overtly with law than a lot of others.  (At some point I need to revisit the issue of how transcendental ideas fit with changes in the common law in the first half of the nineteenth century.  Years and years ago Dan Hulsebosch suggested the name for an article about Justice Story -- transcendental jurist.  So credit goes to him for this, as with so many other ideas I've worked on over the years.)  Emerson explicitly links the cemetery to the local courthouse, when he says they were both "part of a large block of public ground, permanent property of the town and country."

Let me contrast Emerson's Sleepy Hollow address with one given by Increase N. Tarbox.  You've certainly never heard of him before.  He was a relatively unimportant thinker and minister in Massachusetts.  His cemetery dedication address at Framingham (like Emerson's in 1849) was standard fare: the community is coming together to promote a place of beauty and fulfill obligations to the dead.  Though the cemetery is near the city, it is a place of repose, where we pay respect to the dead and in that way elevate ourselves.  Christianity humanizes people and the cemetery is part of that project.  The address centered around the civilizing aspects of Christianity.  One key to understanding the different visions of Emerson and Tarbox comes in an address on philosophy that Tarbox at Hamilton College in 1843.  Tarbox criticized transcendentalists who found that the "Universe is God."  Tarbox, by contrast, wanted a philosophy grounded in the history, rather than one that "send[s] man blindly on his way without guide or compass."  Tarbox attacked the transcendentalist philosophy advanced by those who "discourse by day, of moonlight and starlight and abstract beauty generally; who find a sort of religion in dew-drops and flowers and falling snow-flakes, and manufacture a kind of God out of the spirit of the age."  Tarbox used the cemetery dedication address as a way of supporting the conservative ideas and Emerson used his dedication address to advance his Transcendental ideas.  The Hamilton College address helps us see the points of conflict between those two visions.  Each side, though, used the dedication address to discuss how cemeteries advanced the republic as they saw it.  That is everyone saw the cemetery as a part of their political and religious world.

The image is of Emerson's grave at Sleepy Hollow, from wikipedia.  I don't have a copy of this in my picture files yet.

Cemetery Dedication Addresses and Pre-Civil War Constitutionalism

We're past the 150th anniversary of the Gettysburg battle and that means the 150th anniversary of the Gettysburg address is close.   Lincoln remade the world with that address, and remade it in terms of constitutional aspiration, as well as oratory.  As I suggested a while back, dozens of addresses given at the dedication of rural cemeteries in the three decades before Lincoln's address also spoke to public constitutional ideas.  While none of them approached the eloquence or importance of Lincoln, they too helped support a remaking of the public's understanding of constitutional values.  

I want to talk some about the role that cemetery dedication addresses before the Civil War; I now have a working draft of my paper is up at srrn.  Here is my abstract:

“Public Constitutionalism and the Antebellum Cemetery” joins the growing literature on public constitutionalism by focusing on seventy addresses given at cemetery dedications from Supreme Court Justice Joseph Story’s address at Mount Auburn Cemetery in Cambridge, Massachusetts, in 1831, through the addresses of Edward Everett and Abraham Lincoln at Gettysburg in November 1863. The addresses were part of a vibrant public discussion of constitutional principles, which spanned such diverse occasions as July Fourth celebrations, arguments in great constitutional cases (like Daniel Webster’s Dartmouth College argument), dedication of public monuments (like Daniel Webster’s speech at the placement of the cornerstone of the Bunker Hill Monument in 1824), lyceum addresses, and college literary society lectures.

For Americans, especially those of the Whig Party, the Constitution was a key component of culture and a key unifier of the nation. Rural cemeteries provided support for such constitutional values. They brought beauty and order to the landscape; they served to mediate an impersonal, commercial world and brought uplift through the lessons of morality and patriotism that people learned when they visited the cemeteries. The cemetery supported constitutional values of Union, respect for property, and obedience to the rule of law. For visitors to the cemetery learned about the importance of each of those values at the cemetery. It was an instructor of values; its ordered lanes and graves also served as a sign of the health of the Christian republic. For the cemetery fulfilled duties owed the past. The cemetery inspired sentiments of love of family and country. People would leave the cemetery inspired to preserve the United States as a Christian republic. Finally, these abstract ideas were promoted through private charitable corporations. Those private organizations brought the community together to promote the republic. The cemeteries were, thus, one important institution – along with the schools, churches, civic associations, and businesses – that helped create and preserve the Union.

The cemetery dedication addresses, like other addresses designed to promulgate constitutional ideas, mixed appeals to economics, morality, religion, and political theory with legal and constitutional ideas. Rural cemeteries promoted Whig constitutional ideals about order, patriotism, and Union. Those values were at the center of the debate over the response to secession and they were put into practice by soldiers along Cemetery Ridge at Gettysburg in 1863. Lincoln’s address at Gettysburg, thus, reflects the appeals to sentiment and Constitution that were so frequently invoked in the thirty years before the War. This article reveals an important and neglected role of oratory in disseminating constitutional ideas, as well as the significance of rural cemeteries to public constitutional thought. This hidden history reveals how those ideas mobilized support for Union and, thus, how public constitutional thought affects the actions of voters, jurists, and politicians.

I want to talk a lot about the dedication addresses and their constitutional vision in subsequent post; and I also want to talk about how this particular study can show about the possibilities of studying public constitutional ideas.  That is, I think there is something to say about the addresses as sources of history and also about their implications for writing constitutional history (and maye even something about them for constitutional theory, too, though that is not an area I work in).  In case you'd like to see what they look like, some of the addresses are available at the internet archive.  I recommend Justice Joseph Story's 1831 address at Mount Auburn as one of the better ones.  You might also enjoy Amory Mayo's 1858 address at Green Hill, which discusses the cemeteries as  contributing to the creation of the republic.  Also, here is a podcast of a talk I gave around this paper at the Library Company of Philadelphia.

The illustration is of Concord on April 19, 1775.  I love this because it has the cemetery in the foreground and thus links the cemetery to the start of the Revolution,  It is by an unknown artist in the collection of the National Gallery.

Update as of August 23: Over at Environment, Law, and History David Schorr talks about "Cemetery Constitutionalism" and Aaron Sachs' work on Mount Auburn.

Clymer on Family Money

News of University of Kentucky Professor Jeffory Clymer's Family Money: Property, Race, and Literature in the Nineteenth Century has just reached Chapel Hill.  This is a book I'm very much looking forward to reading because it intersects several of my interests -- trusts and estates and slavery.  Cribbing now from Oxford University Press' website:

Family Money explores the histories of formerly enslaved women who tried to claim inheritances left to them by deceased owners, the household traumas of mixed-race slaves, post-Emancipation calls for reparations, and the economic fallout from anti-miscegenation marriage laws. Authors ranging from Nathaniel Hawthorne, Frank Webb, Harriet Beecher Stowe, Charles Chesnutt, to Lydia Maria Child recognized that intimate interracial relationships took myriad forms, often simultaneously-sexual, marital, coercive, familial, pleasurable, and painful. Their fiction confirms that the consequences of these relationships for nineteenth-century Americans meant thinking about more than the legal structure of racial identity. Who could count as family (and when), who could own property (and when), and how racial difference was imagined (and why) were emphatically bound together. Demonstrating that notions of race were entwined with economics well beyond the direct issue of slavery, Family Moneyreveals interracial sexuality to be a volatile mixture of emotion, economics, and law that had dramatic, long-term financial consequences.

This looks absolutely terrific.  It joins other recent work on this area, such as Jeannine Delombard's In the Shadow of the Gallows, which I mentioned last August.

30/30 -- 30 Lawyers Recommend 30 Books

I am taking a little break from reading the final quizes from my summer school students -- a class of college juniors who're thinking about law school.  Had a great time teaching them; we spent some time talking about race and nuisance cases taken from Integrating Spaces -- some jazz nuisance and a case that shut down the House of Prayer in Columbia, South Carolina.  Really interesting cases, in large part because of what they say about the role that race plays in property law.  We also read Boomer and Spur and a couple of other cases.  One of the final questions was about an African American neighborhood in South Camden, New Jersey, where a developer built a cement grinding plant.  Good stuff for introduction to property.

But as I sit here thumbing through the ABA Journal's recommended readings from thirty laywers, I was pleasantly surprised -- shocked (in a good way!) might be the right word -- to see that Judith Resnik recommends Robert Cover's Justice Accused.  That is, I think, my single most favorite work of legal history.  There's a lot of competition for that, but what I particularly like about Cover is how he integrates the moral issue of abolition with judges' fidelity to law.  Judges faced tough choices and I really like how Cover details the landscape within which they could (or could not) move.  I am pleased that he's getting such prominent attention in the ABA Journal.

I have taught Justice Accused a number of times and each time I have gone back to it I have seen more.  It's astonishing to me how thorough (mature might be the word I'd use) a work of history Cover wrote just a few years out of school.  I first read it in the fall of 1988 when I was in Eben Moglen's legal history class and at the time I found it too concerned with contemporary jurisprudence -- and thus something I did not enjoy as much as some of the other books we read.  It's a sign of my own evoluation as a legal historian that one of the things that I now like about the book is how it used the lens of the pre-Civil War period to view contemporary issues in the conflict between law and justice.  And, of course, I love his turn to literature -- Antigone and Billy Budd.  And I might add that one of my favorite works of literature is a book that Cover might have used but did not: Harriet Beecher Stowe's obscure 1856 novel, Dred: A Tale of the Great Dismal Swamp. Stowe saw little hope for judges to act on their feelings of humanity, though she thought that they should.  Thus, she laid out the boundaries of what we might expect from judges -- and offered an alternative jurisprudence based on sentiment.  Dred is not the wonderful work of literature that Billy Budd is -- that probably would have been my recommendation for a book every lawyer should read -- but it is a powerful and important statement about the contraints that law imposes on judges, in the pre-Civil War period and today as well.

All of this reminds me that the summer's drawing to a conclusion and I have yet to talk about Resnik and Dennis Curtis' beautiful volume, Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms.  It seems like just a couple weeks ago I was listening to some very, very smart commentary on it at Law and Society -- and now as I'm hitting the panic button given how much work remains to be done this summer -- I fear that post will have to be put off for a while more.  My interest in the volume is how they link statistics on litigation with the physical environment of courthouses and western art.  Two things that do not immediately seem like they would go together, but do!

Washington College Literary Addresses

Now that my paper on graduation addresses at UNC before the Civil War is well on its way, I want to talk about one of our neighbors, Washington College (known today, of course, as Washington and Lee University).  

The addresses at Washington College interest me for a couple of reasons.  First, I want to see how a school in a more traditional state compares with the relatively moderate UNC addresses.  (Close followers of this issue may recall that I found the UNC addresses more moderate than those at Wake Forest and Davidson -- though some of this may be due to relatively small Ns.)  Second, I'm interested in how ideas in the Shenandoah Valley compared with those at tidewater schools (like Randolph Macon, where William Smith gave his lectures on slavery and William and Mary, where Thomas Dew and Nathan Beverly Tucker taught and where Abel Upshur gave an important proslavery talk) and also the ideas at the anchor in the piedmont: the University of Virginia.  There are some great comparisons to be made with the UVA addresses -- like the alumni addresses by James Bruce and by law professor James Holcombe, especially Holcombe -- and also with Henry St. George Tucker's 1841 address at the start of the University of Virginia Law School's academic year.

Lexington, where Washington College is, is also home to the Virginia Military Institute, so those addresses offer another point for comparison.  To my disappointment, the VMI addresses I have read so far are less political than I had hoped.  I found the VMI addresses relatively unhelpful (with one exception, R.M.T. Hunter's address) in gauging the political ideology of the orators.  The addresses at VMI were more concerned with Christianity than specifically political topics.

There are some pretty exciting addresses at Washington College.  One of the stories that people who work on the history of the Valley and also the history of education know is President Henry Ruffner's 1847 moderately anti-slavery address -- which focused on the economic problems related to slavery, rather than the inhumanity of slavery.  A year later Ruffner left the presidency, partly because his anti-slavery attitudes had riled some supporters of the College, though there were some other contributing factors as well.  Even before that the Valley had been the seat of anti-slavery activism in Virginia.  I'm planning on talking quite a bit about James M'Dowell -- who supported gradual abolition in the Virginia legislative debates of 1832.  Though even M'Dowell had changed his position somewhat by his 1837 address at Princeton.

Here is E. L.  Magoon's 1846 oration at Washington College on "eloquence and liberty," which is a short version of his book on Westward Empire: Or the Great Drama of Human Progress.  That's a book I need to talk about all by itself at some point -- and it's something that should have had a cameo role in "Property and Progress."  And this is all the more exciting because Magoon was a collector of landscape art.

And though the faculty at Washington College maintained a pro-Union stance through the secession crisis, attitudes towards slavery on that campus shifted after President Ruffner's departure.  George Junkin became president in 1848 and served until 1861 (when he moved north to Philadelphia).  His inaugural address in February 1849 is available -- though the magic of book.google -- here.  In 1843, before his move from Ohio to the Valley, Junkin had delivered a lengthy proslavery speech, "The Integrity of Our National Union, vs. Abolitionism: An Argument from the Bible, in Proof of the Position that Believing Masters Ought to be Honored and Obeyed by their Own Servants, and Tolerated in, Not Excommunicated from, the Church of God."  Pieces of this were used in Josiah Priest's Bible Defense of Slavery.  So there is a shift from the moderately anti-slavery approach of Ruffner to the pro-slavery position of Junkin.  That shift comes later than at other southern schools -- at Alabama it happened in the mid-1830s, for instance.

There is a lot to talk about regarding Junkin's 1843 proslavery address -- first off, it was sufficiently proslavery that it caused him trouble at Miami University in Ohio.  As a result, Junkin  returned to Pennsylvania.  Second, it is rests in small part on a utilitarian calculus that balanced the value of the Union against the value of anti-slavery, though the vast majority of the pamphlet is about biblical support for slavery.  The shift to utilitarian arguments (by both pro and anti-slavery advocates) from natural law and humanitarian arguments is one important piece of the change in thought that took place from the 1820s to the 1850s.  Some of the themes I want to play with the shift from natural law to utility and empiricism; the distinction between market and sentiment; the distinction between democracy and republicanism; and the emphasis on duty and honor, which are related to the growing sense of individualism of the pre-Civil War era.

Another sign of the increasingly proslavery ideas in circulation in Lexington was the 1850 speech by John Reuben Thompson, also available on google, which dealt largely with literary topics, but also attacked abolitionists.  Thompson, you may recall, was the editor of the Southern Literary Messenger.

 I'm going to be focused on how the attitudes towards slavery, history, and law shift over time -- and also on how the addresses critique materialism and idealism, topics that I have not given much attention in my previous studies of addresses at UNC and at Alabama.  I'm also guessing that I'm going to be focused less on political ideology here than when I was reading the UNC addresses.  The Washington College addresses all seem to be from Whigs.  The key features I want to emphasize include the shifts from anti-slavery based on economics to  pro-slavery religious positions; the shift to humanitarian and Enlightenment ideas of the 1830s to economic and empirically oriented ideas in the 1850s.  (Though there are a lot of things to watch out for here and ways that Washington College contradicted some of the common trends, because their president for two years in the mid-1830s was Henry Vethake, who was later a professor of political economy at the University of Pennsylvania and author of an important treatise on economics.)  

I'm also interested in how the shift to an empiricism correlated with the growth in sophistication and in economic orientation in Virginia law.  We can use the growth in prevalence and sophistication of trusts from the late 1820s through the Civil War as a gauge of the  increasingly economic consciousness and wealth of Americans.  Thus, as the common law is increasing in sophistication and as Virginians turned to the technology of law to promote economic growth, the increasing importance of the market appeared in addresses as well.

Update: On September 29, 2017 I had the chance to talk again at Washington and Lee about the debate around slavery at the school before the Civil War.  A podcast of the talk is here.

Some old essays

I thought that I'd post a few articles from a while back all in one place in case anyone's interested in them.

"Aloha Jurisprudence," from the Oregon Law Review in 2006.

"Confederate Memories and Monuments" from the Columbia Journal of International Affairs in 2006.

"Considering William and Mary's History with Slavery: The Case of President Thomas Dew," from the William and Mary Bill of Rights Journal in 2008.

"Contemplating When Equitable Servitudes Run With the Land," from the St. Louis University Law Review in 2002.

Grave Matters: The Ancient Rights of the Graveyard, from the BYU Law Review in 2006.

Harriet Beecher Stowe's Interpretation of the "Slavery of Politics" in Dred: A Tale of the Great Dismal Swamp from the Oklahoma City University Law Review in 2000.

"How Missionaries Thought: About Property Law, For Instance," from the University of Hawaii Law Review in 2008.

"Humanity, Utility, and Logic in Southern Legal Thought: Harriet Beecher Stowe's Vision in Dred: A Tale of the Great Dismal Swamp," from the Boston University Law Review in 1998.

"Integrating Spaces: New Perspectives on Race in the Property Curriculum," from the Journal of Legal Education in 2006.

"Ingenium est fateri per quos profeceris: Francis Danial Pastorius' Young Country Clerk's Collection and Anglo-American Legal Literature, 1682-1716," which appeared in the University of Chicago Law School Roundtable in 1996.

"Invisible Man as Literary Analog to Brown v. Board of Education."

"The Law Book in Colonial America," from the Buffalo Law Review in 2003.

"'Let Us Go Back and Stand Upon the Constitution': Federal-State Relations in Scott v. Sanford," from the Columbia Law Review in 1990.

Mrs. Lincoln's Lawyer's Cat: The Future of Legal Scholarship, from the Connecticut Law Review's on-line companion, CONN-templations.

"Necessity Knows No Law:" Vested Rights and the Styles of Reasoning in the Confederate Conscription Cases, from the Mississippi Law Journal in 2000.

"Norms, Law, and Reparations: The Case of the Ku Klux Klan in 1920s Oklahoma," from the Harvard Blackletter Law Journal in 2004.

 "The Law of Descent of Thought: Law, History, and Civilization in Antebellum Literary Addresses," from Law and Literature in 2008.

"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, from the Journal of Law and Religion in 1995-96.

"Property and Freedom," an essay prepared for a conference at William and Mary in October 2010 about Richard Pipes.

 "Property and Progress: Antebellum Landscape Art and Property Law," from the McGeorge Law Review in 2009.

"Foreword: Ralph Ellison and the Law," from the Oklahoma City University Law Review in 2002.

"Realistic Reparations," from the Freedom Center Journal in 2008.

"Reason and Sentiment: The Moral Worlds and Modes of Reasoning of Antebellum Jurists," from the Boston University Law Review in 1999.

"Reconsidering Reparations," from the Indiana Law Journal in 2006.

"The Rule of Law in Antebellum College Literary Addresses: The Case of William Greene," from the Cumberland Law Review in 2000-01.

"The Signaling Value of Law Reviews: An Exploration of Citations and Prestige," from the Florida State Law Review in 2009.

"The Tulsa Race Riot of 1921 in the Oklahoma Supreme Court," from the Oklahoma Law Review in 2001.   Here is the appendix, which contains William Redfearn's brief to the Court.

"The University and the Slaves: Apology and Its Meaning," from The Age of Apology (University of Pennsylvania Press, 2008).

"Utility, History, and the Rule of Law: The Fugitive Slave Act of 1850 in Antebellum Jurisprudence," from Transformations in American Law History: Essays in Honor of Morton J. Horwitz (Daniel W. Hamilton and Alfred L. Brophy, eds., 2009). And here's a paper from a couple of decades ago on Jacob Rush's jurisprudence ("'religion, the only foundation of government': Jacob Rush and the Federalist Judicial Mind, 1791-1803").  One of these days I'll get back to it.

And here are a couple of recent ones, Twenty-One Months a Slave: Cornelius Sinclair's Odyssey from the Mississippi Law Journal in 2017,  The Road to the Gettysburg Address from the Florida State Law Review in 2016; Debating Slavery and Empire in the Washington College Literary Societies, from the Washington and Lee Journal of Civil Rights and Social Justice in 2016; Land, Slaves, and Bonds: Probate in the Pre-Civil War Shenandoah Valley (with Douglas Thie) from the West Virginia Law Review in 2016; Re-Integrating Spaces: The Possibilities of Common Law Property from the Savannah Law Review in 2015; "The Civil Rights Act of 1964 and the Fulcrum of Property Rights," from the Alabama Civil Rights--Civil Liberties Law Review in 2014; The Southern Scholar: Howard College before the Civil War, from the Cumberland Law Review in 2015; "The Nat Turner Trials," from the North Carolina Law Review in 2013; ""Did Formalism Never Exist?" (an essay review of Brian Tamanaha's Beyond the Formalist-Realize Divide) from the Texas Law Review in 2013; "When History Mattered" (an essay review of David Rabban's Law's History) from the Texas Law Review in 2013;  "Introducing Applied Legal History" from the Law and History Review in 2013; "The Republics of Liberty and Letters: Progress, Union, and Constitutionalism in Graduation Addresses at the Antebellum University of North Carolina" from the North Carolina Law Review in 2011 Republics of Liberty and Letters;  "The most solemn act of my life": Family, Property, Will, and Trust in the Antebellum South, from the Alabama Law Review in 2011;  "Overcoming at the Univeristy of Alabama," from the inaugural issue of the Alabama Civil Rights & Civil Liberties Law Review in 2011; and "The Law and Morality of Building Renaming" from the South Texas Law Review in 2010.

And  Black Power in the Prison Library , Howard Law Journal (2017). 

Constitutional Culture in the Pre-Civil War UNC Literary Addresses

I'm in Iowa City today, workshopping my favorite chapter from University, Court, and Slave -- it's about Thomas R.R. Cobb.  This chapter is at the center of the book, physically as well as intellectually.  It's about Cobb's treatise, An Inquiry in The Law of Negro Slavery, which he published in 1858 -- on the eve of Civil War.  Most of my interest is in the first part of the treatise, where he pulls together writings on the history of slavery, as well as contemporary slavery -- to show how central it is to southern society,  and how an attempt at emancipation will be devastating to southern society.  The second part of the treatise then employs those ideas to support his interpretation of slave law.  Among the many things I find useful in the book is  that we can reconstruct Cobb's bibliographic world, because he cites extensively his ideas.  We can see how he constructed his world from books, even from some abolitionist books.  Then, Cobb died on the battlefield at Fredericksburg, fighting for the southern cause.  So, he's a key lawyer, legal educator, and activist-scholar.   There're some other really cool pieces of this story, but I'm going to save some of them for book.  And when I get home I hope to have some new photographs to post.

The other exciting news is that I'm actually making progress on University, Court, and Slave.  My long-term friends will know that I've been living with this book longer than just about anything else I've ever done.  I started working on it (at least in another form) before Dreamland and, therefore, before Reparations Pro and Con.  One of these days I'm actually going to be turning it over to a press, I think.  Of course, with anything that's been going this long, the temptation -- which I've given in to on numerous occasions -- is to keep working, to add another chapter, to take out one of the chapters that's already written in order to make room for a new chapter....

But right now I'm interested in talking about the paper I'm giving next week in Chapel Hill, on pre-Civil War literary addresses at UNC.  I want to use them to divine something about legal and constitutional culture: how did the judges and lawyers who gave them see their world fitting together?  How did the Constitution contribute to their world -- and in particular, how did the Constitution contribute to support for the Union?

I've already spoken about the orators' differing political attitudes -- how some supported a gradual equalization of social distinctions and how others worried about the loss of the "influence of the educated mind."   Those ideas correlate closely with support for the rule of law.

There was also a lot of talk of Constitutionalism in the addresses--much of it at high level of generality, like the need to support the Union.  Henry Laurens Pinckney's 1836 address (available on books.google) was deeply concerned with pleading for the Union.  Pinckney was at that moment in the process of losing his seat in Congress because, though he came to Congress as a nullifier from South Carolina, he had shown insufficient support for slavery.  (In the spring of 1836 he'd admitted that Congress might have the power to end slavery in DC, a hot-button issue for South Carolina, because it indicated that Congress might have the power to end slavery elsewhere.)

Even before Pinckney, other orators had addressed the centrality of the Union.  In 1830, speaking shortly after the Webster-Hayne debate over the nature of the Union, Senator John Bryan pleaded the cause of Union before the UNC students; Gaston did so in 1832, as did Whig George Badger in 1833.  These continued as common, though subordinated themes, through the late 1830s and 1840s and emerged again in the mid to late 1850s.  The addresses by and large spoke of the need for the rule of law and the support for the Constitution.  Those were pretty vague concepts, of course.  But we can gauge the speakers' feelings by the way they talk about Union.  Many said things along the lines of, "you can't judge the value of the Union.  It's incalculable."

This pleading for support for the constitution, which in turn will support the Union, increases in amplitude in the 1850s.  But there's also a discussion about the Constitution's meaning -- its support for the equality of the states (as southerners term it following John C. Calhoun's lead) and its support for a federal system that gives states latitude in setting their own internal policies.

Orators recognized that the Constitution was more than just a simple document; the speakers wanted to give substance to it by getting their audience excited about the Constitution's protections for the Union.   This was one of many ways that the Constitution moved from a few pages of print to a frame for their lives, from shadow to substance (to invoke the imagery of Henry Watkins Miller).  And therein lies a key part of this project -- the realization that the Constitution was part of a larger cultural project, in which technology and print and oratory and politics all figured as well.

I want to conclude with a comparison between two very different speakers, who gave addresses a year apart: Matt Ransom in 1856 and Henry W. Miller in 1857.  Ransom, who later in life would serve as general in the Confederate army, pleaded for support for the Union and the Constitution.  He concluded with an appeal to George Washington:

Young Gentlemen of the University of North Carolina, as you appreciate the blessings of good government, the priceless inheritance of civil and religious liberty, the universal esteem of mankind, and the fate of our race for all future ages, as you value learning and desire peace, as you reverence the memory of our Fathers and love the honor of our Country, as philanthropists, patriots and Christians, I implore you by all of these considerations to use your influence, your talents, your time and all the power you may possess, to preserve, perpetuate, and immortalize the Union of these States, and the Constitution under which we live, and God grant that the Constitution and that Union, enrobed in the mantle of Washington may last forever.

Washington was always good to align to your cause.  So the next year it was no surprise that Henry Miller called upon Washington as well.  Though Miller began his address by calling for Union, that support was tepid.  Much of his case as about how the South had been mistreated by the Northern Press, by how the South was being criticized in the Northern pulpit and Northern schools, and by Northern politicians.  Miller feared that the Union was a bad bargain for the South.  And he concluded with an appeal to Southerners to stiffen their backs for the impending disunion.  Washington played a big part in Miller's appeal to stiff resolve: 

We cannot—we Dare not surrender one jot or title of our Federal Constitution to the demands of sectional ambition, or the mad behests of fanaticism! It is that which has made us what we are—a prosperous, happy, powerful people. Under and by that we are content to live. It will guide us to a still higher degree of national prosperity and glory. It will prove an impenetrable shield to our rights, our honor, our safety. But if—which heaven forbid! the dread conflict with faction and fanaticism must come, let us appeal to the example of the immortal Washington, to inspire our hearts with patriotism to meet the crisis, and to the just God of our fathers, to lead us through that conflict and give us courage to face and fortitude to bear the direful consequences which may follow.

An appeal to Washington, thus, was the bookend to Miller’s speech, as it had been for Ransom’s speech the year before.  But the conclusion a year later was that Washington might be called upon to support disunion.  We all know the rest of the story; Miller's views won out over Ransom's.

The image above is of Matt Ransom.  I don't have a picture of Henry Watkins Miller, though I need to track one down because he's an important person in my story.

Update as of July 18: Here's a link to the full paper, "The Republics of Liberty and Letters: Progress, Union, and Constitutionalism in Graduation Addresses at the Antebellum University of North Carolina."

 Update as of March 19, 2011: Here's a link to an audio file of a CLE on the addresses

 

 

Politics and the Antebellum UNC Literary Addresses

Following up my post on William Gaston's literary addresses at UNC and Princeton, I thought I'd talk a little about the political affiliations of the speakers.  There are thirty-four published graduation addresses from pre-Civil War UNC -- most are addresses to the literary societies, though there are also five alumni and two baccalaureate addresses as well.  Of those 34, one was given by a sitting judge (Gaston), 8 by lawyers, 15 by  legally-trained politicians, two by non-lawyer politicians, one by a physician, and one by a merchant-planter (James Bruce--about whom I'll have a post shortly).  Two of the literary addresses and the two baccalaureate addresses (no surprise here!) were delivered by religious leaders, including one by Benjamin Palmer, who played a leading role in the secession of Louisiana.  Palmer sets in motion Robert Bonner's fantastic new book on Confederate nationality--again, a story for another time.

All this set me to wondering a little bit about the speakers' political affiliation.  Leaving aside the religious leaders and a couple of people for whom I have inadequate data on their politics, there are 26 people with an identifiable political party.  This will come as no surprise to close followers of antebellum North Carolina politics: the Whigs were somewhat more predominant, especially before 1850.  Because tables never seem to work out well for me and typepad, here's a link to a table on political affiliations of my speakers.

This raises some interesting questions: who chose the speakers?  For the joint literary societies, the societies alternated choices of speakers each year: the Dialetic Society chose one year, then the Philanthropic Society chose the next.  One easy guide to this is that the Dialectic Society chose in odd years, the Philanthropic Society in even years.  Now what really interests me here is that the Dialetic Society members were, by and large, from western North Carolina and the Philanthropic Society members were, by and large, from eastern North Carolina.  So what we may be seeing here is regional, as well as political divisions.  The Phis (as they're commonly known) chose predominantly Whig speakers in the 1830s and 1840s; the Dis chose predominantly Democrats, in the 1830s.  And though there was a preponderance of Whig speakers over Democrats (14 to 11), the Democrats increased over time.  The alumni addresses are overwhelmingly Whig, which is not surprising given that the University's president throughout most of this time was a Whig, North Carolina's former governor, David L. Swain.  (I should also note that if I were a little more aggressive in assigning political affiliation to several, the Whigs would look even more predominant than they do.  I may be more aggressive in my paper.)

Why is this important?  I'm interested in using literary addresses as a gauge of the quality the antebellum southern mind, and also to get a sense of what was on antebellum southern minds.  If we see political ideology manifest in addresses--even in the studied moderation of graduation addresses--this confirms that the addresses are a useful gauge (maybe not a perfect gauge, but a useful one) of what southern intellectuals are thinking.  Also, this is a gauge of UNC's politics.  I've already written some about how Gaston's and Charles Manly's Whig ideology appeared in his address; my  next couple of posts will talk about other Whigs' ideas in their addresses and the Democrats' ideas in their addresses.  And here's the post to really wait for ... the image of the book in the literary addresses, which hypothesizes how Democrats viewed books differently from Whigs!

Update as of July 19:  Here's my paper, "The Republics of Liberty and Letters: Progress, Union, and Constitutionalism in Graduation Addresses at the Antebellum University of North Carolina," which is now up on ssrn.  And is now out in the North Carolina Law Review.  You migth also be interested in a much shorter treatment of William Greene's 1850 Phi Beta Kappa address at Brown.

Update as of December 28:  Here's a most exciting development.  The internet archive now has many of the UNC graduation addresses on-line, thanks to the UNC library's scanning.  They're here (along with some other addresses.)

Update as of February 12, 2011: Here's a podcast of a lecture I gave on the addresses yesterday at the Friday Center.

Charles Manly's 1838 Literary Address

I'm deep, deep in things antebellum and literary, getting my Hutchins lecture ready for March 16.  I'm dealing with thirty-some addresses given to the joint meetings of the Philanthropic and Dialectic Societies at UNC and an occasional address to alumni and one or two graduation sermons, as well.  These addresses were common at schools throughout the country.  One of my key UNC orators is William Gaston, who spoke at Princeton as well.  I'll be talking about him again very soon.

I'm going to be talking a bunch about individual lectures at UNC and about trying to tease out some common themes from them, as well as issues where orators diverged.    On the common end of the spectrum is talk about individual duty, Union, the technological, intellectual, economic, and moral progress of the era.  Who could disagree with any of that?  Well, at least on the Union part -- a lot of people, just not the orators at UNC (by and large, at least until the late 1850s).  

But what about the places where there was division, where orators said controversial things?  Enter the Whig lawyer Charles Manly, who spoke in 1838.  A decade later he was governor of North Carolina, but at this point, he was just a regular old practing lawyer from Pittsboro.  I eat lunch in Pittsboro sometime, so guess what?  I've got a photo of his law office, which the good folks at the Chatham County Historical Society have restored.  (Pittsboro is the county seat of Chatham County.)  The office is small, obviously, but beautifully restored.  Below right is a picture of the back of Manly's office.

And because Pittsboro is a county seat, you know what's next.... I've also got a picture of the Confederate statue out front of the Pittsboro Court House.  Not quite the best picture, but they were having a sidewalk sale that day and I was sort of pushed out into traffic.

Be all of that as it may, Manly's address is really interesting for this reason: a major part of it is an attack on Indian removal and, thus, on Andrew Jackson and Martin Van Buren.  (Have I spoken recently about Gerard Magliocca's really good book on constitutional thought in the age of Jackson? If you're interested in this stuff, you should read his book.)

 Charles Manley's address isn't the most exciting of the ones I'll be talking about, but it is an important illustration of one key Whig theme--equal protection of the law.  And also the attack on Jackson's Indian removal policy, which Van Buren followed through with, with a vengeance.

What's even more interesting to me is that Charles Manly is the brother of another very important antebellum thinker -- Basil Manly, who was president at the University of Alabama before the Civil War.  President Manly was a Democrat and a minister; Governor Manly was a Whig and a lawyer.  Makes for some mighty interesting speculation about the differences between professions.  (It's not quite the Benjamin Rush, Jacob Rush contrast -- the physician Benjamin was a leading Democrat and the lawyer/judge Jacob was a leading Federalist.  That's a long story, which I'll tell another time.)

 

 

 

 

 

 

 

A New Literary History of America

Last week brought a wonderful volume that I've been eagerly awaiting all summer:  Greil Marcus and Werner Sollors' A New Literary History of America.  The book has about 250 essays on American literary history -- organized around dates (like 1692, the year of the Salem Witchraft Trials, March 6, 1865, the date of Lincoln's Second Inaugural, Memorial Day, 1897, the date of the monument to the Massachusetts' 54th Regiment is dedicated at the Boston Garden, October 1965, the autobiography of Malcom X appears).  The New Literary History has entries on a lot of what we commonly think of as American literature, like entries on John Withinthrop, Anne Bradstreet,  Mary Rowlandson (though her captivity narrative is spoken of in connection with the Alien and Sedition Acts), Ralph Waldo Emerson's American Scholar (which I recently learned was delivered in the First Unitarian Church in Cambrdige, not on the Harvard campus) and his Divinity School Address, Harriet Beecher Stowe, and the usual suspects in the twentieth century, like Tennessee Williams, Sinclair Lewis, F. Scott Fitzgerald, Ralph Ellison....  Well, the list goes on and on.  You can see the full table of contents here, at the book's website, newliteraryhistory.com.  (And there's an entry on one of my favorite figures in American literature, Francis Daniel Pastorius; more of my thoughts on Pastorius here.)

But what's most interesting to me is the new things that are in here -- one of my favorite essays (no surprise here) is Alan Wallach's on landscape painter Thomas Cole.   Wallach talks about one of Cole's paintings, Lake with Dead Trees, which I haven't studied.  I'm not quite sure how it fits with my theme of property and progress.  Some of the other creative ideas in here are entries on the Cherokee cases, the Missouri Compromise, and the meeting between Albert C. Barnes -- the famous art collector (we talk about him in trusts and estates a bunch) and John Dewey.  Never know what things you'll learn about in these thousand pages.

And speaking of progress, this book is a quintessentially American and optimsitic.  The dates selected here are generally forward-looking ones--not much of proslavery thought, for instance, in here.   This book, like other companions to American thought -- like the fabulous Fox and Kloppenberg Companion to American Thought--is necessarily selective.  But it's going to repay many, many readings.  And its structure and its sparks of creativity will set the research agenda for many years.  American literary history looks very different today than it did even last month.   If you're looking for a great and creative gift this is it -- or if you're interested in some great reads, get a copy for yourself.  It's the best fifty bucks you'll spend this year.

It inspires me to think about a New Legal History of America, which would be organized around dates, too.

Mary Eastman was married to whom?!

Yup--Mary Eastman, author of the important proslavery novel Aunt Phillis' Cabin (notice the parallel title to Uncle Tom's Cabin--Eastman was writing in response to Harriet Beecher Stowe) was married to Seth Eastman, who was a somewhat important landscape artist.   I know, this is really hard to believe--I didn't believe it myself at first.

The image of Seth Eastman's 1834 painting is a link to Hudson River with a Distant View of West Point,in the collection of the Butler Institute of American Art in Youngstown, Ohio.  More stuffthat could -- and should-- have gone into "Property and Progress: Antebellum Landscape Art and Property Law"!  (It'll go into the next iteration.)  For Eastman's post-Civil War paintings of forts, which are in the United States Senate's collection, click here.  Or herefor the Boston MFA's pre-war drawing of Fort Defiance.