A Peculiar Humanism: The Judicial Advocacy of Slavery in High Courts of the Old South, 1820-1850

A Peculiar Humanism: The Judicial Advocacy of Slavery in High Courts of the Old South, 1820-1850. By William E. Wiethoff. Athens: University of Georgia Press, 1996. xi, 247 pp. $37.00. ISBN 0-8203-1797-7.

In this erudite monograph William Wiethoff examines the ways in which southern supreme courts gave legal sanction to the slave-plantation social order of the antebellum South. The book's greatest strength stems from its illustration of southern judges as more than reviewers of facts and laws. As Wiethoff forcefully demonstrates, judges conceived of their role within the South's politico-legal system as more than purely juridical; they saw themselves as conservators of a social system based on traditional institutions, including the South's most "peculiar" one. Consequently, southern judges served not merely as arbiters of law but as judicial advocates of slavery. Owing to this advocacy, judicial opinions became a form of proslavery discourse directed at a wide public audience and intended to lend an air of authoritative legitimacy to the South's social structures. Wiethoff shows that judges, as advocates, relied heavily on intuition and personal experience-as opposed to case facts and legal precedent-in crafting slave-related jurisprudence.

The book's most novel aspect is its exploration of "a neglected intersection of law and letters." Wiethoff's judges had a taste for belles lettres, and they imbibed the ideas of classical and neoclassical humanism, which emphasized rhetorical eloquence and civic virtue. Southern jurists thus "perceived their civic duties to demand oratorical skill as well as legal expertise" (all on p. 1). Engrafting this humanist lore into their jurisprudence, southern judges cultivated a forensic oratory through which they fashioned a "humanist defense of slavery" (p. 158).

According to Wiethoff, judges adapted this humanistic approach to suit their own class interests. Because most judges belonged to the planter elite, their decisions naturally reflected their slaveholding mentality. Yet, judges risked too much by naked appeals to self-interest and planter-class needs, particularly in the Upper South, where the antislavery crusade most threatened to co-opt the mass of nonslaveholding whites. As a result, judges sought to reconcile interest with humanity, to equate the master's civil rights to property with the bond servant's moral right to life. This peculiar humanism, by linking the South's interest in preserving slavery with ethical concerns for slaves' humanity, enabled judges to sculpt a proslavery jurisprudence that claimed fidelity to considerations of policy, civic morality, and the public good.

Wiethoff's book undoubtedly constitutes a valuable addition to recent scholarship dealing with southern slavery and the law. Numerous weaknesses mar the work, however. Although exceptionally well written overall, the book is cluttered by technical terminology specific to the disciplines of speech and communication-Wiethoff's fields of specialization-that will repel many potential readers. More serious are methodological problems regarding selection of evidence. Wiethoff confines his study to the writings of seventy-two judges whose "oratorical form" most impressed him. He ignores "by design" less belletristic judges, whose nonreliance on humanist rhetoric apparently relegates them to insignificance (all on p. 1). Such jurists as William Daniel of Virginia and Henry L. Benning of Georgia would have been shocked to learn that their commentaries on slavery lacked legitimacy because they failed to quote Cicero. Likewise, Wiethoff omits discussion of Texas judges owing to their "lack of oratorical addresses to slavery" (p. 7). This seems tantamount to excluding evidence that does not fit one's thesis, which raises doubts about whether a "humanist tradition" pervaded southern jurisprudence to the degree Wiethoff suggests (p. 6). Much of Wiethoff's story, furthermore, is old wine in new bottles. His law-and-- letters approach is commendably original, but at bottom Wiethoff essentially reiterates arguments developed earlier by Eugene Genovese and Mark Tushnet (although the author scarcely acknowledges his debt to these scholars): that southern judges used law to uphold traditional institutions and equated humanity with interest in a way that justified planter-class hegemony. In the final analysis, A Peculiar Humanism is an insightful, useful study, but the publisher probably goes too far in a dustjacket phrase that touts the book as "an outstanding contribution to the literature on law and slavery." ERIC TSCHESCHLOK Auburn University

Copyright University of Alabama Press Oct 1998
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