I begin with a painting from the Brooklyn Museum, William Gilmour Blythe's Art versus Law. This important painting presents the sad--but not surprising--scene of an artist who's been locked out of his studio. In the antebellum era, self help was a preferred method of dealing with tenants. And just in case the artist didn't get the picture, the post on the right of the door tells him, for further information, inquire well downstairs. (In more common parlance: "Go to hell"?).
The painting, which Sarah Burns examines in her brilliant Painting the Dark Side: The Gothic in American Art of the Nineteenth Century, reminds us that law is on the minds of artists. And so is the idea of landscape. In fact, landscape art is at the center of the American art in the nineteenth century.
So we have the antebellum painters with their grand canvases. At right is one of my favorite paintings, Asher Durand's Progress. (By the way, it is housed in a beautiful museum, the Westervelt Warner Museum in Tuscaloosa.) What I like about it is the way it illustrates Americans' celebration of progress--look at the telegraph poles, railroad roundhouse, the peddler, the smoke stack, the river boats. And at the front left are Native Americans looking on at the progress. One canvas, telling the whole story of antebellum America.
Now, I can hear you empirically minded social scientists saying: what has this to do with judges' attitudes towards property or anything else for that matter? And so I give you the speech of one Supreme Court Justice: Levi Woodbury, speaking to the Dartmouth College Phi Beta Kappa Society about Thomas Cole's Course of Empire: "starting first in the rudeness of nature; then maturing to high refinement and grandeur till, amid the ravages of luxury, time and war, sinking into utter desolation."
What was Justice Woodbury talking about? Well, this series of paintings, which Thomas Cole painted about the "Course of Empire," running from the savage, to the pastoral, to consummation, to destruction, and concluding with desolation. Many people believed that empires naturally followed such a course--and that led to fear for the future of America among antebellum thinkers, particularly judges.
If we're seeking to understand antebellum legal thought, then I think it's important to look around to all sorts of cultural data, including speeches lawyers and judges gave and even the art their times produced. And here novels and even fine art I think hold keys to understanding.
Later in this semester I hope to talk a little about how the same grand ideas about conquering property that appear in the paintings appear in judicial opinions as well. Propertyprofs will be well familiar with Johnson v. McIntosh, though adverse possession is another place to look for this. And of course so are places like Chief Justice Marshall's opinion about slavery in The Antelope. (Interested in more of this? Check out my posts at propertyprof--which focuses on landscape art in Hawaii--and concurring opinions. There's some great artwork out there to talk about, including Thomas Cole's Notch in the White Mountains, and some cultural connections, including Ralph Waldo Emerson on property. One of these days I'm going to talk about Emerson's lawsuit over property. And I also hope to have some thoughts on citation data as a measure of networks among antebellum jurists. We'll see how much the semester interferes with my intentions....)
Alfred L. Brophy