Law in Contemporary Society

John Brown and Oliver Wendell Holmes on Justice through Force

-- JamesCrowley - 31 May 2012

The Path to Civil War

In the run-up to the Civil War, many Northerners came to favor abolition mainly because of concerns about the balance of power between the states.

"Run-up"? "Between" should be "among."

Surely this needed sourcing. In fact, it needed clear statement too, because even for a reader who knows the history, it isn't clear whether you are referring to concerns about "the slave power" in the politics of the 1850s, or responses to secession after 1860, or something else. And even if we are clear which political concern you are talking about, that it motivated adoption of abolition sentiment is a further proposition requiring some evidence, and it's not clear at all upon whose interpretation you are depending.

I don't intend for you to be doing significant amounts of secondary research. You have many fine choices for one-stop shopping here, including, for example, the opening chapters of McPherson's "Battle Cry of Freedom."

Among those whose opposition to slavery was grounded firmly in its immoral nature was the young Oliver Wendell Holmes Jr. As an editor of Harvard Magazine he had written and published articles promoting abolition. In the fall of Holmes’ junior year John Brown conducted his ill-fated raid on Harper’s Ferry. Ralph Waldo Emerson, whom Holmes had met and admired greatly, said that Brown had made “the gallows glorious like the cross.”

How do you get a comment of Emerson's to stand for the thought of Holmes? Who in Holmes' Boston had not met or did not admire Emerson?

By the winter of his senior year Holmes was wielding a billy club as a bodyguard for Wendell Phillips, a prominent Boston abolitionist who had delivered an oration at Brown’s funeral.


Holmes enlisted in the Union army eleven days after the surrender of Fort Sumter. Although set apart from Brown by his youth, affluence and education, he too was prepared to kill and die to make men free. Holmes gave the next three years of his life to the Union cause, fighting valiantly and pausing only to recover from wounds received in battle. His experience in the war, and the lessons he drew from it, differ sharply from Brown’s approach to violence and Henry David Thoreau’s analysis of it in his Plea. The two provide very different answers to a fundamental question: Can we justify the imposition of our vision of justice?

Obviously this too needed sourcing. This is a more complex area, because the effects of Holmes' war experience on his social and political philosophy are a matter on which his biographers and other observers have strongly differed. Moreover, the categories in which you want to think, or at any rate to compare other people's thoughts, may not be Holmes' categories.

Different Lessons from the Same Struggle

John Brown went to the gallows maintaining the firm belief that slavery was wrong and that the measures he had taken to oppose it were appropriate. Through years of fighting and the loss of family and friends he remained resolute. “[T]he reason why such greatly superior numbers quailed before him,” says Thoreau, “was… because they lacked a cause.” Thoreau cites Balaclava as an example of soldiers fighting bravely while being commanded foolishly, but says that Brown’s struggle, “in obedience to an infinitely higher command, is as much more memorable than that, as an intelligent and conscientious man is superior to a machine…”

But why are these concluding sentences useful?

While Holmes never stopped believing that slavery was wrong, his actions during the war seem to have been motivated more by a sense of professionalism and duty than by the cause for which he fought.

Seem to whom? Why?

Very few of his surviving letters from the war make any mention of what he was fighting for, mostly because he made a point of destroying those that did when he got home.

Made a point of destroying those letters that discussed what he was fighting for? Or destroyed letters, some of which might have discussed that point. How do you know which letters he destroyed, and why?

While serving, Holmes befriended Henry Abbott, a fellow officer who made no secret of his Copperhead views. Abbott was politically opposed to Abraham Lincoln, thought that slavery would die out on its own, and wrote in a letter home that he would not act to enforce the Emancipation Proclamation, “having decidedly too much reverence for the Constitution.” Holmes never adopted Abbott’s political views, but watching him fight bravely and die for a cause that he regarded with contempt taught Holmes that there was honor in performing one’s duty with indifference to ends.

Source? He didn't previously think that? How do you know? Are you as surprised as I am that he didn't previously consider it honorable to do one's duty in the Army without regard to one's personal convictions?

The carnage that Holmes saw convinced him that war was something we should strive to avoid.

This is a cliché. Are you sure that it's correct? You have at least some of Holmes' writings to explain or explain away, if this is true.

The run-up to the Civil War convinced him that nothing was more certain to lead to war than certainty. “When you know that you know,” he would say later in life, “persecution comes easy. It is as well that some of us don’t know that we know anything.”

Here you stop short of clarity. The use of a quotation (unsourced, and with no context) from more than sixty years after the event, does not shed much light on the thinking of the man before age 85. That the actual subject of his comment was alcohol prohibition, with a glance at Calvin and the Catholics but no mention of the Civil War or slavery, reduces its present utility still further.

If you think, as I and some other writers on Holmes have said we do, that Holmes' experience in the Civil War turned him further against the idea of natural rights, you should either present some basis of your own for that conclusion, or associate yourself with someone else's evidence, and explain tersely for the reader why that position is disputed by others who take an equally plausible and very different view.

He acknowledged that there were things that we couldn’t help but believe in, even things that we were prepared to fight for, but for Holmes it was more accurate to say that we seek to make our preferences reality than to say that we strive for justice.

Why are these two propositions alternatives? Is it not simple to have a preference for justice?

The solution for Holmes was democracy, which provides a forum for holders of different preferences to fight for those preferences without resorting to actual fighting.

This is an unusual interpretation, and it would be good to see the basis on which you came to it. He was perfectly well aware that the United States was a democracy before the Civil War as well as afterward. He did not say, so far as I'm aware, that Lincoln should have regarded secession as a democratic outcome and let the Confederacy leave the Union. I, for my own part, don't understand how democracy is somehow a preventative against rebellion, or how we are to conclude that an absence of democratic opportunity was what caused the slave states to secede and make war on the Union.

An Integrated Approach

The approaches to perceived injustice advocated by Brown and Holmes represent opposite sides of a spectrum, each in some ways problematic. John Brown’s actions today appear heroic, in large part because we are every bit as sure as he was that the institution he sought to eradicate was grossly unjust. When the righteousness of one’s cause comes into question so does the suitability of imposing one’s vision on society. Holmes developed his approach while fighting for abolition, which oddly seems to be the cause to which its application is most objectionable. Democracy provides an adequate forum for settling many disputes, but there are situations in which a majority will be in favor of unjust persecution of a minority (sometimes, as with American slavery, where the minority has no voice at all). In cases of extreme injustice force may be necessary to override that majority, as the minority should not have to suffer and wait for the majority to do what’s right.

What are the endpoints of this "spectrum"? How is it possible to discuss John Brown without mentioning religion? How is it possible to discuss Holmes without mentioning that abolition was not the war aim of the government whose Army he fought in while he fought in it, nor the cause with which he associated himself when he wrote about the war after it was over. Would it not be accurate to say that Holmes agreed with Abraham Lincoln that the war was fought to preserve the Union, and that "If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that"?

The students in this class are training to become lawyers, and thus to affect change with words. In order to make our time in the profession worthwhile we’ll need to develop conceptions of justice and work to make our ideas prevail. For many of us the pursuit of justice will clash with the will of the majority. We should not seek to emulate Brown’s religious certainty that what we fight for is right, but we should always strive towards his honesty and his courage.

Why the sudden swerve from what these men thought to what law students "ought" to think?

He is a heroic figure not because he was the most certain that slavery was wrong, but because he was willing to sacrifice everything while others refused to relinquish the benefits or safety of maintaining the status quo.

I'm not sure why these two formulations are different for you, and I don't want to choose between them as the only possibilities. I think he's a heroic figure because he tried to free slaves. I think the same of the pacifist Quakers in North Carolina fifty years earlier who tried to free slaves by buying them and helping them live and work as free people, before the courts found a way to stop them. Neither his particular religious certitudes nor his particular methods seem to me heroic, nor does the scale of his sacrifice improve by one iota, in my mind, the nobility of trying to bring freedom to those held in bondage, which is just as fine a thing to do if to do it requires no sacrifice at all. His courage and integrity are admirable, but I have known in my life bad men seeking bad ends who had as much of both as Brown had, and they're no heros to me.

Thoreau was correct when he spoke of the superiority of fighting for a cause over blindly following orders, but it’s possible to fight as blindly for a cause as a leader. It is better still to struggle for a cause that one has come to honestly support after careful consideration while maintaining a Holmesian lack of certainty.

"We march up a conscript with bayonets behind to die for a cause he doesn't believe in. And I feel no scruples about it," said a fellow once, called Holmes. Nor do you seem to me to have come into contact with "The Soldier's Faith," which presents some obstacles to your interpretation, it seems to me.

The essay needs some work as history, in order to put the reader in touch with at least some basic secondary sources where your points can be sourced easily, and with a more useful set of Holmes' writings about the war, so that the reader can judge for herself the basis of your interpretation of his thought. It also needs some work thematically: your own idea cannot be grasped from the introduction, appears rather abruptly at the conclusion, and is unfortunately a little garbled, as I've tried to suggest in comments above. It seems to me that a clear statement of your point at the beginning, and a development which uses the materials provided by Holmes and Brown to advance our understanding of your idea, followed by a coda and conclusion, would be the best structure for you.

Please let me know if you're planning to undertake this revision in the near term, or if I should turn in a grade now for EIP purposes.


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r5 - 22 Jan 2013 - 20:09:55 - IanSullivan
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