Timothy S. Huebner.
The Southern Judicial tradition: State Judges and Sectional
Studies in the Legal History of the South. Athens: University of Georgia
Press, 1999. xiii + 263 pp. Photos, notes, bibliography, index. $45.00
(cloth), ISBN 0-8203-2101-X .
Brian Dirck , Assistant Professor of History, Anderson University.
Tradition or American Tradition?
The search for identifiable subcultures within the larger
context of the American legal system in the nineteenth-century has always
been a problematic enterprise for historians. All would recognize local
and regional variations within American law, but whether these translate
into fundamentally different ways of thinking about and practicing the law
remains an open question. Was there such a thing, for example, as
"frontier law" which differed significantly from legal systems in more
settled areas? Did regional differences translate into measurable legal
differences in the South, or the East, or the Midwest? Was there such a
thing as "southern law," with distinctive boundaries and customs; or were
there simply Southern ways of applying American law?
These are difficult questions to answer. Whatever else may
have separated nineteenth-century lawyers and judges in different parts of
the country, the fact remains that they shared a loose but meaningful set
of commonalities. The English common law system--with some variations and
idiosyncrasies, of course--prevailed throughout the nation. Nearly every
lawyer read Blackstone, Kent and Chitty. Until the end of the century,
most studied for their licenses in individual law offices, rather than
formal law schools. Taken together, such common experiences constituted a
viable national legal culture.
Add to this the difficulties involved in defining a
particular regional identity, even in general, non-legal terms. Before we
answer the question of whether there is such a thing as frontier law, we
must first decide if there is such a thing as a "frontier," a matter
mightily disputed by Western historians. Where the South is concerned,
historians who study that region continually emphasize the murky nature of
Southern identity, with its complex social, cultural, racial and
ideological facets. Southern historians are often unsure of exactly what
constitutes a Southern identity, legal or otherwise.
Any scholar who voluntarily enters this thicket of
crisscrossing methodological and theoretical issues deserves credit for
courage. While in the end I have reservations about the arguments
Professor Huebner has advanced in The Southern Judicial Tradition,
I applaud his valiant effort. He has produced what is in many respects a
Huebner chooses the format of collective biography for his
excursion into southern law, analyzing the lives and careers of six
southern lawyers and jurists. His subjects are well chosen for their
breadth of experience and their diversity. Some, like Joseph Henry
Lumpkin, embraced the idea of a separate southern nation, while
others--John Catron in particular--strongly opposed the creation of the
Confederacy. One of Huebner's judges, Spencer Roane, was a member of the
southern gentry, while others saw themselves as Jacksonian spokesmen for
the rights of common white southerners. Huebner cast as wide a net as
possible in selecting his subjects.
His biographies of these six men are crisply written,
well-researched, and grounded in a firm grasp of both history and legal
doctrine. Huebner's analysis of southern court decisions in complex areas
of criminal law such as justifiable homicide is cogent and through. When
he addresses the various issues related to slave law--such as Judge Joseph
Lumpkin's decisions on slavery and the "fellow servant rule," for
example--he makes a valuable contribution to this rich area of American
legal history. He is also quite sensitive to the effects of various
non-legal contexts--cultural and social norms, his subjects' personal
predilections, class and caste distinctions--on the historical development
of the law.
Huebner offers interesting observations concerning the
overall tendencies of southern judges, He argues that they increasingly
saw their court decisions in national rather than sectional terms as the
nineteenth century drew to a close. He also points out that southern
judges, while clinging to the rules of precedent and common law
procedures, were nevertheless quite sensitive to the social ramifications
of their decisions. "Southern judges saw themselves as playing a
significant role in their society as both makers of law and models of
gentility," Huebner wrote. (p. 187).
There is much to like in The Southern Judicial Tradition;
in many ways Huebner has produced a first-rate legal history. Yet in the
end I was not entirely clear whether or not Huebner himself believed he
had uncovered a "southern judicial tradition" in the sense of a uniquely
southern take on the law. His choice of words--a "nineteenth-century
southern judicial tradition"--would seem to imply that he was searching
for a set of tendencies, a judicial paradigm, which set southern judges
apart from their counterparts in other sections of the nation. Yet Huebner
seemed to draw back from making such a claim. He argues that the central
theme of this southern judicial tradition was the "evolving relationship
between...political sectionalism and legal nationalism" and that "southern
judges revealed the tensions between their involvement in the southern
political order and their connection to the American legal community."
(pp. 1, 8).
Fair enough; but where then do we find a singularl
"southern" tradition in this tension? Would it not be fair to suggest that
other jurists in other parts of the country felt pretty much the same
tension between local concerns and the national legal culture? For
example, in his analysis of Tennessee jurist John Catron's career, Huebner
asserts that Catron had come to "think about law and constitutionalism in
distinctively southern ways," citing Catron's stance against the National
Bank and for Cherokee Indian removal in the 1830s (p. 68). While granting
that these were both popular positions in the South at the time, does
Catron's point of view make him "distinctively southern?" After all, a
good many Americans in other parts of the nation also took Andrew
Jackson's side against the bank, and had no qualms about Indian removal.
Why would Catron's opinions not be, for example "distinctively western?"
And if he was being both a southerner and a westerner, then where are the
boundaries of a distinctively southern legal culture?
Perhaps what Huebner has uncovered here is not a "southern
judicial tradition" at all, but rather an American judicial tradition
which consists of judges who are required to continually balance local,
sectional and national concerns. This a valuable contribution, but it is
not quite what the reader is led to believe he/she will find in this book.
At the very least, Huebner should have provided a detailed explanation of
what he means when he uses the words "Southern" and "tradition." These are
both problematic terms, and his somewhat lax use of both creates confusion
concerning precisely what it is he wishes to assert.
These reservations aside, however, The Southern Judicial
Tradition is a useful work, illuminating the lives and careers of six
heretofore obscure Southern jurists in a learned and interesting fashion.
Huebner has not laid to rest questions about whether or not there is such
a thing as a distinctive Southern law, but he has at least provided a good
starting point for further inquiry.
Library of Congress
Call Number: KF367 .H84 1999
* Judges--Southern States--Biography
* Judges--Southern States--History
* Justice, Administration of--Southern States--History
* Southern States--History
Citation: Brian Dirck . "Review of Timothy S. Huebner, The
Southern Judicial tradition: State Judges and Sectional Distinctiveness,
1790-1890," H-Law, H-Net Reviews, September, 2000. URL:
“Comparing the public and
private lives of six southern judges from various parts of the South,
Huebner presents a nuanced analysis of how jurisprudence, politics, and
cultural identity influenced those jurists and institutionalized their
sectional concern…Huebner’s fine study of the intersection of local,
sectional, and national interests in the state judiciaries marks an
important contribution to nineteenth century historiography.”
Mark F. Fernandez, review
of The Southern Judicial Tradition: State Judges and Sectional
Distinctiveness, 1790-1890, by Timothy S. Huebner, Law and History
Review 20 (Summer 2002): 410-412.