A Peculiar Humanism: The Judicial Advocacy of Slavery in High Courts of the Old South, 1820-1850.
In A Peculiar Humanism: The Judicial Advocacy of Slavery in High Courts of the Old South, 1820-1850, William Wiethoff invokes a fresh perspective from which to investigate the interplay of judicial oratorical practice and antebellum Southern defense of slavery. The work reflects an exhaustive study of judicial opinions and extra-judicial writings and speeches of appellate-level judges in states that later formed the Confederacy. Three purposes, Wiethoff states in his introduction, guide his work: to analyze the "intersection of law and letters" in the proslavery discourse of these judges, to "trace the humanist authority" these judges utilized, and to examine "the judicial struggle to obey humanist ideals by enhancing the factual settings of the cases, by equating humanity and interest, and by issuing apologetics for the frequently unsuccessful struggle itself." (1)
The central thesis of A Peculiar Humanism is that one can discern how judges' reliance upon "classical models of eloquence," grounded in classical and neoclassical civic humanism, operates to maintain the institution of slavery. Thus, Wiethoff's work nicely augments the expanding body of scholarly works - including Robert Hariman's chapter on Ciceronian republicanism in Political Style: The Artistry of Power - which delineates the impact of classical, and Ciceronian in, particular, rhetorical and argumentative theory upon America of the early republic and the antebellum periods. A Peculiar Humanism also brings an intellectually sensitive appreciation of the argumentative features of slavery to the existing legal and historical corpus; in this way, Wiethoff's work might be nicely read against Southern Slavery and the Law by Thomas Morris.
The work begins with a review of the influence of classical oratorical theory and exemplars upon the early American republic, a discussion which picks up on the excellent work of Carl Richard (The Founders and the Classics), Meyer Reinhold (The Classick Pages), and others. The discussion of Ciceronian humanism and its interaction with rhetorical practice does not pursue a detailed presentation of these concepts, thus rendering this chapter entitled "Humanists and Advocates" somewhat cursory for the reader familiar with the primary works. Nonetheless, the chapter does afford readers a grounding sufficient for engaging Wiethoff's reading of the Southern judges' discourse.
The starting point for many of these judges, it appears, was to determine first the desired result and then craft a set of supporting arguments. As one judge stated, "In deciding a case, I always look for the justice of it, and having ascertained that, I am very sure that I can find the law to sustain it." (52) Analyzing contemporary attorney advocacy through a narrative lens is commonplace today. Wiethoff demonstrates the ways in which judges in both the Upper and the Deep South similarly grounded their decisions upon their personal experiences and understandings of "the peculiar institution" of slavery.
Wiethoff notes in his introduction that, "[I]n essence, the discourse of the judges illustrates practical reasoning."(10) The judges' invocation of Ciceronian decisionmaking, which promotes prudential reasoning, is understandable, as Wiethoff observes, given the paucity of statutory laws governing slavery. This point might be pursued, for during the relevant time period, many states both North and South underwent a series of codification movements designed to transform the law from a morass of unwritten legal principles and contradictory precedents to a systematic, comprehensive set of written laws. As the codification movements had not achieved their object by 1850, judges, both Northern and Southern, often found themselves pressed to render a decision with little clear guidance from the corpus of American law. Thus, an oratorical form grounded in narrative, personal experience, and sensus communis possessed the resources necessary for legal argument.
The lack of statutory and, to a lesser extent case law, upon which a judge could build an opinion thus represents an additional, yet relatively unexplored, reason why those jurists Wiethoff studies invoked classical oratorical forms. Only upon the rise of a "professional culture," as Gregory Clark and S. Michael Halloran write in Oratorical Culture in Nineteenth-Century America, does American discursive practice move away from reliance upon grounding arguments upon commonly shared experiences, values, and beliefs. The American legal "professional culture," in this sense, remained in its nascent stage in the antebellum period.
The discussion of the professional strictures of decorum upon invocation of classical and belletristic oratorical form leads to one of the more prominent aspects of Wiethoff's work. Chapters 4 and 5 consider the ways in which Southern judges both advocated humane treatment of slaves as they defended the region's interest in maintaining slavery as a practice. In the Upper South, these "blended appeals" became an accepted feature of slavery opinions, whereas the Deep South, relatively insulated as Wiethoff notes from the pressures of abolition, a reliance upon interest appeals was prominent. This discussion brings Wiethoff to his penultimate chapter, which considers the judges' discourse of apologetics.
The text is particularly strong in its exhaustive, and at times perhaps overly detailed, examples of the judges' oratorical form. The exhaustive review of judicial papers, opinions, and collateral sources from Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North and South Carolina, Tennessee, and Virginia reflected in the "Works Consulted" section mark A Peculiar Humanism as a significant starting point for further researchers interested in judicial argumentative practice and the intersections of law and slavery in the antebellum South.
TERENCE S. MORROW Gustavus Adolphus College
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|Author:||Morrow, Terence S.|
|Publication:||Argumentation and Advocacy|
|Article Type:||Book Review|
|Date:||Jun 22, 1998|
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