The intersection of property and slavery in Southern legal thought: From Missouri Compromise through Civil War
Alfred Brophy explores the development of modes of reasoning in Southern legal thought in the forty years leading up to the Civil War. The dissertation centers around three issues: how judges understood their duty to follow precedent as they reshaped the common law to comport with their ideas about economy and society; the role of political ideology in shaping constitutional protections for private property; and how judges melded considerations of humanity with cold legal logic.
The study first looks to statements in judicial opinions, treatises, and public speeches to gauge the role of precedent, experience, reason, and humanity in shaping common law development. Then it turns to the institution of property in Southern thought, to show the centrality of property and slavery to Southern law. Next, it explores the development of constitutional protections for private property and the influences of Democrat and Whig ideologies on Southern courts. It then juxtaposes two subtle interpreters of Southern thought: Louisa McCord and Harriet Beecher Stowe. Stowe's 1856 novel, Dred: A Tale of the Great Dismal Swamp, in particular explores the power that considerations of precedent and expediency held over Southern judges. The final chapter draws together those themes by examining Confederate state court opinions regarding property rights.
The study explores the ways that Southern judges brought strands of political theory and doctrine together to shape property law. It asks how those within and outside the Southern legal system understood what was happening. It responds to recent historical research addressing the interaction of cultural ideas, such as progress, slavery, and property, with legal doctrine in the years between Revolution and Civil War and in that way addresses the modification of legal thought from the Enlightenment ideas of the Revolutionary generation to the conservative thought of the proslavery Southerners.
0328: Black history