William E. Wiethoff. A Peculiar Humanism: The Judicial Advocacy of Slavery in High Courts of the Old South, 1820-1850. Athens: University of Georgia Press, 1996. xi + 247 pp. $37.00 (cloth), ISBN 978-0-8203-1797-7.
Reviewed by Lewie Reece (Anderson College)
Published on H-Law (January, 1997)
Numerous works have been written lately on the nature of the slave system in the South and the way in which it affected the legal system. Yet despite an ever increasing deluge of works, little has been said about those who enforced the law and their role in supporting a politico-legal settlement on racial slavery. William Wiethoff's new book, A Peculiar Humanism, is meant to bridge the gap by focusing on the ways in which the high courts of the South gave support and approval for slavery. What gives Wiethoff's work a special currency is his focusing on the public argument of justices, by examining the way in which judges sought to influence the larger political system.
Perhaps the most important strength of Wiethoff's work is the way in which he understands that Southern judges were far more than representatives on the bench. They were representatives of a political order, of a way of thinking about law, politics, and society that was defining in many ways. Accordingly, simplistic court-centered accounts will tell only part of the story, but Wiethoff had an understanding of the political role that judges could serve in the political system. While not in pursuit of political office, judges did recognize that they had responsibilities to a wider audience.
That wider audience is at the center of what Wiethoff seems so interested in writing about--namely, he writes about the way in which judges espoused a "humanism" for slavery, a rhetoric of oratory that sought to combine law and civic virtue. Moreover, Wiethoff shows that these discourses fit, as well, into the ways in which opinions were written and in which judicial opinions were driven by a slave-holding ideology.
Perhaps the most fascinating part of Wiethoff's study is the gallery of numerous portraits of judges who sat on the high court. Wiethoff's exceptional research provides an intimate look at the people who served on the bench. He shows how judges found their way to the bench, and the distinctions that existed within the South and within different court systems. Wiethoff writes extremely well, has a certain fondness for the members of his cast, and provides a very intimate and intriguing look at the high court.
There can be little doubt that Wiethoff's small monograph has a good deal of value to it and that it will be used by historians for many years to come. Yet though he does seem quite interested in stretching the boundaries of judicial practice, he also seems rather narrow at times. Wiethoff's focus is clearly on the way in which judges influenced law, and the way in which judges tried to define their perspective in a legal and a political way. Moreover, Wiethoff often tries to connect what judges advocated for the slave system with the various crises that overtook American life in the nineteenth century.
Yet rarely does Wiethoff show the way in which the law and what it represented in the South were influenced by forces outside of courtrooms. For example, Wiethoff cites a dizzying array of works that have been written on Southern courts. Yet nowhere does he demonstrate any familiarity with William Freehling's, Prelude to Civil War, the definitive work on nullification. Although Freehling is a political historian, his work is filled with an intimate discussion of the way in which the legal system in South Carolina wrestled with nullification--a subject that Wiethoff touches on in his account, but without sufficient detail. Wiethoff's bibliography is also missing J. Mills Thornton III's Politics and Power in a Slave Society, which stresses the way in which elites sought to mould and shape political discourse. These are only a few examples of works of political historians whose thoughts on the political system Wiethoff could have found useful.
It also would have been interesting if Wiethoff could have explained the way in which the approaches of high courts were different from those judges/magistrates on the local level. Here, in many states, one could find direct democracy at its best (or worst), and the tension between lower and higher courts is a subject that could have been explored in depth.
These caveats aside, Wiethoff's book is a major step forward, is highly thoughtful, and presents an able discussion of those subjects presented. Historians will be using his work for years to come. It provides a welcome addition to a subject that has been ignored for far too long.
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Lewie Reece. Review of Wiethoff, William E., A Peculiar Humanism: The Judicial Advocacy of Slavery in High Courts of the Old South, 1820-1850.
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