This essay originally appeared here in storySouth.
Nelle Harper Lee is in her eighties and spending her final years embroiled in lawsuits. For some time I’ve awaited the publication of a book she is rumored to have written about an Alabama salesman who got wealthy by murdering multiple wives and collecting the life insurance proceeds. My sources—all reliable people—insist the book is complete, but I don’t know whether it is or will be published.
One of my earliest memories is of a bookcase at my grandparents’ beach house in Destin, Florida, that held the films my grandparents considered classics: Dr. Zhivago, Patton, Gone With the Wind, and, among others, The Sound of Music. I remember one film above all because it was set off from the others, as if on display: To Kill a Mockingbird.
Few books have captivated me as has To Kill a Mockingbird. I first read it in elementary school. Too young to understand its complexities, I adored Atticus Finch and decided that I wanted to be a lawyer when I grew up. In high school, I named my dog Atticus. Then my sister got a cat. We named it Scout. Neither animal lived up to its namesake: Atticus was needy and pathetic, Scout skittish and brain-dead.
I was born into the book as others were born into money. My grandfather, Papa, was raised in Monroeville, Alabama, by way of Atmore, Alabama, where he was born in 1929. Because the Depression had hit Papa’s family especially hard, a charitable doctor in Atmore delivered Papa for free.
Shortly after Papa was born, Great-Granddaddy moved his family to Monroeville and worked for various car businesses, never earning much money. Papa, tall, strong, and handsome, was also something of an athlete. He earned a basketball scholarship to Auburn, left Monroeville for college, graduated, and then served in the U.S. Air Force. In 1955, he married his college sweetheart, Barbara Glenn Farish, my grandmother, whom I call “Nina.” Nina and Papa moved to Monroeville, where they lived until 1959. Their stay was short. Within a year, they left for Oklahoma and then returned to Alabama to live in Opelika until they made their final move to Atlanta. Papa’s Monroeville days were over, save for his visits to relatives.
Great-Granddaddy, however, lived in Monroeville until his death in 1991, the year his beloved Atlanta Braves made it to the World Series just one season after finishing with the worst record in baseball. I often visited Great-Granddaddy in his small, white-wood house with the gravel driveway and grass basketball court that was littered with pecans dropped from the trees above. Papa’s aunt, my Great Aunt Jewel, the only person I had known who was confined to a wheelchair—she had Polio—lived next door and owned one thousand cats. When I asked mom why Aunt Jewel lived near her brother for so long, mom said, “Health, sweetie.”
Monroeville was home to two of the 20th century’s greatest authors: Lee, the reclusive author of To Kill a Mockingbird, a Pulitzer Prize winner, and a recipient of the Presidential Medal of Freedom, who was born in Monroeville in 1926, and Truman Capote, Lee’s friend, schoolmate, and neighbor, who lived in Monroeville until the third grade, at which point he moved to New York City. He continued to summer in Monroeville with his aunts, whom Papa called “wild-haired” women. Lee was four years older than Papa. “She was,” he would say whenever he was probed about the age difference, “in the 12th grade when I was in the eighth grade.”
“Back then,” he used to say, referring to his childhood in Monroeville, “there was nothing to do, so kids had to use their imaginations.” He told me about how Lee and Capote had, despite their young ages and, in the case of Capote, lack of physical prowess, constructed a tree house with the assistance of Lee’s brother, Edwin. “They formed a club up there,” Papa said, “and to be in the club you had to do certain things.” Papa never said what those things were, but he did say that he had been admitted into the tree house.
†
I was in the third grade when I went to Great-Granddaddy’s funeral in Monroeville. I recall a few things clearly from that weekend: Great-Granddaddy’s open-casket, Swing-Low-Sweet-Chariot, and the endless pecans, which I gathered from the yard and placed into an old potato sack. Nina bought the pecans from me for one dollar. I thought I was rich, and in some ways, I was.
I also remember Papa telling stories about Lee and Capote that weekend. I delighted in these and shared them with my teachers, who seemed both impressed and skeptical. Papa said that Lee was a tomboy who wouldn’t wear dresses and was always in trouble. She would show up at the grass basketball court in his backyard and play with the boys. His descriptions of the girlhood Lee resemble her own portrayal of Scout Finch, whom the character Aunt Alexandra chastised for tomboyishness. The narrator of To Kill a Mockingbird says that Aunt Alexandra was “fanatical on the subject of [Scout’s] attire” and insisted that Scout “could not possibly hope to be a lady if [she] wore britches.” Whenever Scout declared that she “could do nothing in a dress,” especially not play, Aunt Alexandra would inform her that girls weren’t “supposed to be doing things that required pants.”
Papa’s attitude toward Capote was mixed. He took pride in him, but didn’t want to glorify him, either. If I asked Papa to describe the boyhood Truman, he would answer, flatly, “Capote was a weird boy.” I had to press him for details, perhaps because he did not want to admit that he and his friends had, as one might expect of seven and eight year old boys, teased Capote.
Capote was not like the other kids and did not fit in. He frequented the drug store with a satchel full of papers and pencils, wearing knickers, stockings, and a funny cap and talking with flute-like intonations. He would sit in the drug store for hours, drinking Coca-Cola and producing paper after paper from his satchel, scribbling lines of prose and stacking the finished pages until he’d made a paper tower stretching from the table to his chin.
“What are you doing in there, boy?” Papa and the other boys would ask.
To which Capote would say, “I’m writing a book.” Then Papa and the other boys would laugh because the notion that someone in Monroeville, Alabama, could write a whole book was, they thought, silly, if not downright preposterous.
Capote proved my grandfather wrong and wrote many books; Papa came to admire Capote.
Papa was not especially vocal about his relationship to Lee or Capote until he retired, but once he retired, it was hard to keep him quiet about it. When I went away for college, he made a name for himself at the local high school by lecturing in my cousins’ classrooms. He drawled on about Monroeville and Lee and To Kill a Mockingbird and specified the residents on whom Lee had based her characters. “Bubba,” Nina objected more than once—Papa didn’t like the nickname Bubba, and only Nina could call him that—“you best not tell all about the Monroeville folks. You’re likely to get sued.”
Papa laughed, kept giving lectures, and never got sued.
†
Open to the first few pages of To Kill a Mockingbird, and you’ll see a disclaimer: “This book is a work of fiction. Names, characters, places, and incidents are the product of the author’s imagination or are used fictitiously. Any resemblance to actual events, locales, persons, living or dead, is coincidental.” If you had asked Papa about this disclaimer, he would have told you it was hogwash.
When I graduated from college, having earned a degree in literature, I moved to Japan to teach English. Before leaving the States, I arranged to have supper with Papa so we could talk about Harper Lee.
He and I sat at his kitchen table, in Sandy Springs, Georgia, eating boiled shrimp and drinking Nina’s sweet tea, a bowl of cocktail sauce, a copy of The Monroe Journal (dated July 25, 2002, and headlined “A.C. Lee, the perfect ‘Atticus Finch’”), and three stacks of papers between us. On one piece of paper, Papa drew a map. On another, he listed Monroevillians and their corresponding characters from To Kill a Mockingbird. The list looked like this:
Scout Finch……….Harper Lee
Jem Finch…………Edwin Lee
Dill Harris………….Truman Capote
Atticus……………..A.C. Lee
Boo Radley……….Son Boulware
Aunts……………….Faulk sisters
Mr. Ewell…………..Mr. Ezell
Tom Robinson…….(Fiction)
Maudie……………..Grandmother Mosey Neighbor
Mr. Tate, Sheriff…..Sheriff Sawyer
Calpurnia…………..Georgianna
Mr. Radley…………Mr. Boulware
Maycomb…………..Monroeville Macon County…….Monroe County
“This,” he said, indicating a sloppy square on his map, “is the courthouse, and this is the post office.” He also indicated the jail, the drug store, the elementary school; Selma Street, Montgomery Street, and Mobile Street; and some homes labeled “my home,” “Grandmother (Maudie),” “Faulk,” “Harper Lee,” “Radley, Boo,” and “Dill.”
And so it went. Papa specified who lived where, why, and for how long. He explained how Amasa Coleman Lee, Harper’s father, served as the model for Atticus and how Edwin Lee, Harper’s brother, served as the model for Jem. He also explained how the “real” Boo Radley was Son Boulware.
The narrator of To Kill a Mockingbird introduces Boo as “a malevolent phantom” whom she had never seen but whose very breath caused azaleas to freeze “in a cold snap.” She describes the Radley house as adjoining the schoolyard and declares that a “baseball hit into the Radley yard was a lost ball and no questions asked.” Papa testified to the truth underlying this legend, saying that he and his friends would play baseball in the schoolyard and occasionally hit or throw a ball into Son Boulware’s yard. They would run up to the fence to see if Son would come out of the house to get the ball. He never did. But the ball would be back in the schoolyard the next morning. Papa swore that this was how Lee got the idea for the knothole in which Boo deposited gifts for Scout and Jem.
One day, when Papa was working for a Mr. Gardner, who ran a grocery store, Papa was called on to deliver a basket of groceries to Mrs. Boulware. He had told Mr. Gardner that he’d deliver groceries to anybody but the Boulwares, but Mr. Gardner would have none of it and ordered Papa to make the delivery. Papa, who had a bike with a big basket for carrying things to and from school, collected the groceries and set out for the Boulware home.
He rode up to the Boulware’s yard—which, he said, was tidy to the point of exhibitionism—and chanced his way through the gate of the picket fence, tottering up the steps to the front porch: the very porch, perhaps, that Jem had conquered to impress Scout and Dill. For some reason, Papa decided to go around to the back door; the porch, you see, stretched the length of the house. The groceries were heavy and slipping from his hands. When he turned the corner, he saw Son, or Boo, who hopped out of the porch swing and ran inside just as quickly as Papa could drop the groceries and jolt the other way. Papa always maintained that Son was “white as a sheet” that day. He rode his bike back to the grocery store and announced to Mr. Gardner that he would never deliver another thing to that house.
Papa used to describe the particularities and peculiarities of Mr. Boulware, Son’s father, a man who never worked a steady job and who raised chickens and cultivated a beautiful vegetable garden. “He swapped chickens for groceries,” Papa explained. “He’d leave his house every day, about 11:00, walking right by grandmother’s, and I’d watch him sometimes from behind grandmother’s shades, and he’d go three places: the post office, the courthouse, and the Jitney Jungle. He’d always return by noon.”
Papa claimed that Lee modeled the character Miss Maudie on his grandmother, who would scold him and his friends when she caught them spying on the Boulwares: “Y’all leave that family alone! They’ve never done anything to you!”
Papa alleged, as well, that Lee modeled her characters on the following people:
Edwin Lee as Jem. Known simply as “Ed.” Ed went to Auburn. That he, or anyone for that matter, went to Auburn is of tremendous significance to my family: all my grandparents—save for my paternal grandmother, who never attended college—attended Auburn; both my parents attended Auburn; my uncles attended Auburn; my sister attended Auburn; and a plethora of first, second, third, fourth, and fifth cousins attended Auburn; I’m a doctoral candidate at Auburn. Nina’s family, the Glenns, have a dorm at Auburn named for them; and Glenn Street runs through the edges of Auburn’s campus.
Amasa Coleman Lee as Atticus. Harper Lee’s father. A lawyer who never actually attended law school. He handled mostly wills and estates. He raised his family as Methodists and served on the board of the church. Papa heard him speak on several occasions and characterized him as a dry speaker who rattled change in his pockets while he talked.
Georgianna as Calpurnia. In the book, Calpurnia looked after Scout and Jem, but Papa claimed that was Mrs. Lee’s job and that Harper Lee had chosen not to include Mrs. Lee in the book. Georgianna was a cook who lived in a small residence behind the Lees’ house. A.C. Lee did not drive her home after work, the way Atticus did for Calpurnia. Papa described Georgianna as a hefty woman who wore bright red lipstick and played the accordion in the afternoons. She was, apparently, an atrocious accordion player.
Mr. Ezell as Mr. Ewell. Ezell, like Ewell, was, in Papa’s words, “poor white trash.” He was an alcoholic who never worked. He and his family lived outside of town and were supported by Mrs. Ezell, who ironed, washed clothes, and undertook other odds-and-ends to make a living. Ezell’s family lived in a house that someone else abandoned, and the Ezell children started school each year but always dropped out within three weeks on account of the other children laughing at them. The Ezell children never had proper clothes. Papa claimed that their family lived in that once-abandoned house until about the year he left for college. Then they disappeared, and nobody in Monroeville, at least to Papa’s knowledge, knew where they went.
“Harper Lee used fake names to refer to real Monroeville people,” Papa insisted. “She did it, I suspect, to avoid lawsuits.” He would follow up by saying that Lee couldn’t fool those who had lived in Monroeville, who had spent their days with the actual people so easily identifiable in Lee’s fiction. Papa didn’t know what to make of the fact that Lee had omitted some of her closest friends and relatives from the book—her sisters Alice and Marie, for example. He set aside the question by saying, “I suspect she wanted to make the book seem more like fiction.”
†
When I was eight years old, I made a discovery much like the one Scout and Jem made about Atticus’s sharpshooting skills. Nina and Papa had a Siamese cat named Susie who would sneak into the attic through unknown passageways. One afternoon, she snuck away, and I went looking for her in the upstairs bedroom. I looked under the bed, behind the shower curtain, on top of the bookcase. No Susie.
Then I saw the closet door was cracked open. I pulled it all the way open and saw a long, coffin-like case on the shelf above the clothes. I pulled it down and examined it. It was about five feet long, tapering hexagonal at the tips; it had a locked, split lid. There was nothing particularly ornamental about it, so I supposed that there was no harm in opening it. Although it was locked, its lid gave way without resistance. When that happened, I gasped, horrified, and dropped the case to the floor. My heart fluttered. Inside was a shotgun. The first I’d ever seen.
I hadn’t known Papa to be a hunter or a rifleman, but when I summoned forth the courage to pick up the case and reinstate to its proper place, I saw two or three trophies, on the shelf, that were shaped like riflemen. Apparently, Papa was a good shot.
Just as I knew nothing of Papa’s marksmanship, Scout and Jem knew nothing of Atticus’s marksmanship—until, that is, old Tim Johnson, a neighbor’s dog struck mad with rabies, materialized in the street one afternoon, “walking dazedly in the inner rim of the curve parallel to the Radley house” and “advancing at a snail’s pace.” The narrator of To Kill a Mockingbird describes Tim Johnson as “dedicated to one course and motivated by an invisible force that was inching him toward us.”
Heck Tate, the sheriff of Maycomb, surrenders his gun to Atticus, insisting that Atticus take the shot at the canine (“this is a one-shot job,” Tate says). Scout and Jem watch skeptically as their father fumbles with the rifle. The reluctant Atticus—moving “like an underwater swimmer”—takes aim, pausing to adjust his glasses, which, eventually, he lets fall to the street. “With movements so swift they seemed simultaneous,” the narrator says, “Atticus’s hand yanked a ball-tipped lever as he brought the gun to his shoulder.” Then, suddenly, Atticus eliminates the dog with a single shot, leaving Jem “paralyzed” with wonder and confused as Miss Maudie refers to Atticus as “One-Shot Finch.”
“Don’t you go near that dog, you understand? Don’t go near him, he’s just as dangerous dead as alive,” Atticus tells Jem, who says, “yes, sir,” and then stammers, “Atticus?—”
To which Atticus says, “Yes?”
Jem, still stunned, says, “Nothin.’”
Minutes later, Jem remains in “numb confusion” and only “vaguely articulate.” Seeing this, Miss Maudie enlightens him by saying that Atticus was the best shot in Maycomb. When Jem protests that no one had told him this before, Miss Maudie muses aloud in words that, I believe, could have described my Papa:
If your father’s anything, he’s civilized in his heart. Marksmanship’s a gift of God, a talent—oh, you have to practice to make it perfect, but shootin’s different from playing the piano or the like. I think maybe he put his gun down when he realized that God had given him an unfair advantage over most living things. I guess he decided he wouldn’t shoot till he had to, and he had to today.
I never did see Papa shoot a gun, but Nina said that one time he had shot a squirrel off the bird feeder with a BB gun because he thought birds were disadvantaged when it came to competition with the squirrels. When he went to collect the squirrel’s body, the little thing came to, shook its head wildly as if snapping from a trance, and bounded away into the woods. Papa shelved the BB gun that day and never used it again.
†
As all grandfathers must, Papa passed on stories about his childhood, often while sitting in his reading chair with his grandkids gathered on the floor around him. “When I was a boy,” he would say, “there was no swimming pool. And there was only one movie theater, and it had only one screen. They had to change the picture every day to keep business. On Saturdays, there was a double-feature: two westerns. Admission cost five cents for children, and for another five cents, you could have some popcorn.” This was the world of Lee and Capote, too: the charming yet dangerous world that Lee illuminated for masses of readers.
With Lee’s final, tumultuous years comes the passing of a part of me that I shared with my grandfather through stories. It has been said that pleasant words are like a honeycomb, sweetness to the soul and health to the bones. I know my grandfather to have been a good and honest man, and come what may, I’ll tell his stories about Harper Lee and Truman Capote and Monroeville to my children and, perhaps one day, my grandchildren, that they, too, might tell their offspring. Good folks like Harper Lee and my grandfather can’t be kept alive forever—Papa died in May of this year—but this isn’t true for the stories they leave behind. Those live. They must, for the sake of soul and bone, and for the wisdom of our posterity.
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The Literary Lawyer: A Forum for the Legal and Literary Communities 
America, Commentaries on the Laws of England, David Brion Davis, Declaration of Independence, Jeremy Bentham, jurisprudence, Natural Law, positive law, Race, Samuel Johnson, Science, The American Founders and Natural Law, the Enlightenment, Thomas Jefferson, Utilitarianism, William Blackstone
The American Founders and Natural Law Jurisprudence
In America, American History, American Literature, Arts & Letters, Books, Britain, Christianity, Historicism, History, Humanities, Jurisprudence, Law, Laws of Slavery, Liberalism, Literature, Philosophy, Slavery, Southern History, Thomas Jefferson, Western Civilization, Western Philosophy on April 9, 2014 at 8:45 amThe American founders, many of them, validated their political cause and secession from Britain by resorting to natural law theories and paradigms.[i] Thomas Jefferson memorialized these theories and paradigms in the Declaration of Independence.[ii] While studying nature and the physical world, Jefferson extended natural law jurisprudence while revising it to fit the needs and settings of the New World.[iii] Rather than looking to divine or moral prescription to ground his natural law theories, Jefferson looked to nature. He borrowed from Newtonian ideas about the laws of the universe and applied them to the laws of man.[iv] A human law was, by this logic, akin to the law of gravity.
The American insistence on natural law was a reaction to the analytical positivism gaining credence in Britain.[v] This school of jurisprudence found its fullest expression in the utilitarianism of Jeremy Bentham and John Austin. These men treated laws as linguistic constructs: commands that attained the status of law because people followed them, not because they reflected a priori or transcendent rules of the cosmos. American founders such as Jefferson saw natural law as a way to distinguish themselves from their British counterparts and to define what it meant to be American. William Blackstone, one of the few British jurists still clinging to natural law principles,[vi] enjoyed vast success from American purchases of Commentaries on the Laws of England.[vii] The popularity of this treatise in America had to do with Blackstone’s support for ideals that, from the colonials’ perspective, affirmed Revolutionary rhetoric and philosophical principles.[viii] Blackstone died in 1780. His death ushered in the age of positive law jurisprudence in England.[ix]
In America, however, natural law picked up momentum in the wake of the Revolution and American independence.[x] That ideas of natural law flourished during the Enlightenment, especially in America where institutions were supposed to reflect—indeed embody—Enlightenment principles, is curious because the Enlightenment glorified reason and humanism: progressive concepts seemingly incongruous with a moral theory derived from ancient church teachings and philosophical orthodoxies. This disjuncture reveals the extent to which colonials sought to divorce their culture and communities from the British. Á la Blackstone, colonials would go great lengths to “prove” their natural law theories through application of the scientific method and appeals to reason.[xi] Natural law jurisprudence did, in fact, fit within a scientific and rational framework in many important respects. For instance, natural law, like laws of the natural world putatively discoverable by reason, logic, and experiment, were by definition universal. Just as truths about the external world allegedly were deduced through sustained study of specimens and species, so truths about the human condition were, natural theorists argued, deduced through sustained study of human behavior and the history of the races.[xii] In this sense, colonial jurists viewed natural law not as retrograde, superstitious, or religious, but as cutting-edge and scientific. Americans were not alone in their attention to the scientific elements of law. In Western and Central Europe during the mid-to-late eighteenth century, rulers and leaders “sought to rationalize their legal systems, to make law scientific, to extend it in a vernacular language evenly over their territories, and to put an end to the earlier jumble of customs, privileges, and local rights.”[xiii] Save for Blackstone’s efforts, however, this scientific trend did not gain much traction in England.[xiv]
Early Americans, particularly northerners[xv] but also Virginians such as Jefferson and George Mason, celebrated the ideals of natural law and natural rights appearing in the Declaration, but they found those ideals difficult to implement in everyday practice. Although staunchly committed to the principles of natural law, the colonials, at least those with representation or voice in the political sphere, discovered that abstract philosophy did not readily translate into workaday rules and regulations.[xvi] “It was one thing,” submits David Brion Davis, “to state abstract propositions, and quite another to decide how the law applied to a particular case.”[xvii] Above all, the “peculiar institution” of American slavery called into question the Enlightenment values upon which American natural law jurisprudence depended. Cries of freedom and liberty rang hollow once Americans were no longer up against an oppressive British Empire. These cries began to sound hypocritical—if they did not seem so already—as the institution of slavery became a mainstay of the economy of the fledgling nation.[xviii] How could colonists extol freedom, liberty, and equality yet enslave masses of people? This American philosophical “inconsistency pinched harder when slaves began to speak the language of natural rights.”[xix] As Samuel Johnson, the eminent British Tory and man of letters, quipped, “How is it that we hear the loudest yelps for liberty among the drivers of negroes?”[xx]
NOTES
[i] “The American Revolution, as it ran its course from 1764 to 1776—from the first beginnings of resistance down to the Declaration of Independence and the creation of new colonial constitutions—was inspired by the doctrines of Natural Law.” Ernest Baker, in Natural Law and the Theory of Society: 1500-1800, ed. Otto Gierke (Cambridge, England: Cambridge University Press, 1934) at I, xlvi. See generally Clarence Manion, “The Natural Law Philosophy of the Founding Fathers,” University of Notre Dame Natural Law Institute Proceedings (Notre Dame, Indiana: University of Notre Dame Press, 1949). See also Raymond Whiting, “The American Interpretation of Natural Law,” A Natural Right to Die: Twenty-Three Centuries of Debate (Westport, CT: Greenwood Press, 2002) 109-118.
[ii] “[T]he argument of the Declaration is a subtle, if ambiguous, blending of empirical historical analysis and the metaphysics of Natural Law. To prove its central contention—that the revolution was made necessary by British policies—the document enumerates twenty-seven specific events in recent history which reveal precisely how Britain acted to establish despotism. […] But the revolutionaries meant to transcend arguments of expediency, for such arguments were always subject to the vicissitudes of opinion and opinion might lead one to conclude that a revolution was in fact unnecessary and therefore unjustifiable. To remove their claims from the arena of opinion and to ground them with certainty, the revolutionaries felt constrained to found the argument for justification on the principle of Natural Rights which was rooted in the theory of Natural Law as applied to politics and society. Thus the grievances enumerated in the Declaration, weighty in themselves for some readers, were for others concrete examples of how one nation attempted to subordinate another to an ‘absolute despotism.’ The grievances, taken together, demonstrated that British policies had violated the fundamental principles of Natural Law itself.” Lester H. Cohen, “The American Revolution and Natural Law Theory,” Journal of the History of Ideas, Vol. 39, No. 3 (1978) at 491-92.
[iii] See generally Allen Mendenhall, “Jefferson’s ‘Laws of Nature’: Newtonian Influence and the Dual Valence of Jurisprudence and Science,” Canadian Journal of Law and Jurisprudence, Vol. 23, No. 2 (2010).
[iv] See generally Mendenhall, “Jefferson’s Laws of Nature.”
[v] See generally David Lieberman, “Mapping criminal law: Blackstone and the categories of English jurisprudence,” in Law, Crime and English Society, 1660-1830, ed. Norma Landau(Cambridge, England: Cambridge University Press, 2002 ) at 159-162. See also David Brion Davis, The Problem of Slavery in the Age of Revolution, 1770-1823 (Ithaca and London: Cornell University Press, 1975) at 343-385. Davis explains this English phenomenon as follows: “In England there was no ‘fundamental shift in values’ that mobilized the society into revolution. There was no counterpart to the American need for self-justification. No new hopes or obligations arose from an attempt to build a virtuous republic. Such phrases as ‘created equal,’ ‘inalienable rights,’ and ‘the pursuit of happiness’—all of which appeared in classic liberal texts—were qualified by a reverent constitutionalism that looked to Saxon precedent to legitimize ideals of freedom. The notion of man’s inherent rights, when assimilated to the historical concept of British ‘liberty,’ implied little challenge to traditional laws and authorities. And by the 1790s the very idea of inherent rights was giving way to radical and conservative forms Utilitarianism.” Davis, The Problem of Slavery in the Age of Revolution at 343.
[vi] In short, Blackstone believed that the common law reflected natural law principles and that any law contradicting natural law was invalid. Consider, e.g., the following quotation: “This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding all over the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original. […] Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these.” Sir William Blackstone, Commentaries on the Laws of England, Book I at 41-42.
[vii] See Russell Kirk, America’s British Culture (New Brunswick, New Jersey: Transaction Publishers, 1993) 36-40.
[viii] See Albert W. Alschuler, “Rediscovering Blackstone,” 145 University of Pennsylvania L. Rev. (1996) at 4-19. See also David Schultz, “Political Theory and Legal History: Conflicting Depictions of Property in the American Political Founding,” 37 American Journal of Legal History (1993) at 483-486.
[ix] The jurisprudential split between Blackstone and Bentham, while stark, was not as hostile as some first considered: “Until recently Bentham’s claim to have made a sharp break with Blackstone has won wide acceptance, and that fact, combined with Bentham’s ascendancy, was chiefly responsible for consigning Blackstone to obscurity. […] No doubt this outcome resulted in part from Bentham’s mastery of invective, and in part from the fact that the elderly Blackstone did not deign to notice the attacks of an upstart critic, much less reply to them. Even the strongest partisans of Bentham have conceded that much of his criticism directed at Blackstone was misplaced[…]. In spite of Bentham’s efforts, most historians of the relationship have acknowledged that Bentham, despite his implacable hostility, combined relentless criticism with passages of praise that became as famous as some of his barbs.” Richard A. Cosgrove, Scholars of the Law: English Jurisprudence from Blackstone to Hart (New York University Press, 1996) at 52.
[x] See generally George W. Casey, “Natural Rights, Equality, and the Declaration of Independence,” 3 Ave Maria Law Review 45 (2005). See also Philip A. Hamburger, “Natural Rights, Natural Law, and American Constitutions,” 102 Yale Law Journal 907 (1993). See also James Lanshe, “Morality and the Rule of Law in American Jurisprudence,” 11 Rutgers Journal of Law & Religion 1 (2009) at 11-15. See also Kevin F. Ryan, “We Hold These Truths,” 31-WTR Vermont Bar Journal 9 (2005-06) at 11-16.
[xi] “[Blackstone] presented law as a science, a ‘rational science,’ that included an extensive discussion of natural law. To Blackstone, the principles of natural law are universal and superior to positive law, including the common law. […] Natural law, according to Blackstone, is either revealed by God or discoverable through human reason. […] American jurisprudents readily accepted Blackstone’s natural law orientation. […] [N]atural law provided a convenient and useful justification for the adoption of English common law in the various states of the burgeoning nation. Especially in the decades following soon after the Revolutionary War, if the common law had been understood merely as an English institution distinctive to Britain itself, then an American reliance on the common law would have seemed impolitic or even treasonous. If, however, the common law arose from universal principles of the law of nature, which were revealed by God or discovered through human reason, then the common law would be legitimate everywhere, including in America.” Stephen M. Feldman, “From Premodern to Modern American Jurisprudence: The Onset of Positivism,” 50 Vanderbilt Law Review 1387 (1997) at 1396-97.
[xii] Thomas R. R. Cobb, a jurist from Georgia and an expert on slave laws, took pains to show how science validated the idea of slaves as naturally inferior and in need of white supervision. Consider this quote by Cobb: “The history of the negro race then confirms the conclusion to which an inquiry into the negro character had brought us: that a state of bondage, so far from doing violence to the law of his nature, develops and perfects it; and that, in that state, he enjoys the greatest amount of happiness, and arrives at the greatest degree of perfection of which his nature is capable. And, consequently, that negro slaver, as it exists in the United States, is not contrary to the law of nature.” Thomas R. R. Cobb, An Inquiry into the Law of Negro Slavery in the United States of America (Philadelphia: T. & J. W. Johnson & Co., 1858) at 51.
[xiii] Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815 (Oxford University Press, 2009) at 403.
[xiv] Ibid. at 403-404.
[xv] “Southerners considered themselves law-abiding and considered northerners lawless. After all, southerners did not assert higher-law doctrines and broad interpretations of the Constitution. Rather, as Charles S. Sydnor has argued, they understood the law in a much different way and professed to see no contradiction between their code of honor, with its appeal to extralegal personal force, and a respect for the law itself.” Eugene Genovese, Roll, Jordan, Roll (New York: Pantheon Books, 1974) at 44.
[xvi] See Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815 (Oxford University Press, 2009) at 405-408.
[xvii] David Brion Davis, The Problem of Slavery in the Age of Revolution (Ithaca and London: Cornell University Press, 1975) at 470.
[xviii] See generally David Brion Davis, The Problem of Slavery in Western Culture (Ithaca, New York: Cornell University Press, 1966) at 3-28. For a synthesis of the historical scholarship on this point, see Peter Kolchin, American Slavery, 1619-1877 (New York: Hill and Wang, 1993) at 63-92.
[xix] David Brion Davis, The Problem of Slavery in the Age of Revolution (Ithaca and London: Cornell University Press, 1975) at 276.
[xx] See James Boswell, The Life of Samuel Johnson, LL.D. (New York: George Dearborn, 1833) at 132.
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