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Final Exam Questions


 Remember to read the Instructions.


Legal History of Slavery

            A number of my professional colleagues have suggested to me that the legal history of slavery is not a topic that deserves much emphasis.

I have heard this most often from law professors who are not themselves legal historians.  While they might grudgingly concede that the legal history of slavery could be a worthy topic within a history department, they do not see why students should study this history within law schools or why legal historians generally should spend much time on the question of slavery.

After all, my colleagues have suggested, American slavery is long dead as an institution, and there seems to be no chance that it will be revived in the United States.  Slavery was so obviously an injustice that dwelling on it in the classroom or in published articles will only serve to inflame racial tensions.  In short, they can see no reason to spend a lot of effort on the slavery question.

Draft an essay in which you respond to their concerns.  Think broadly about the disadvantages or benefits of studying the legal history of slavery.  An obvious question, of course, is whether the study of slavery's legal history sheds any light on our contemporary situation.  But you might also wonder whether the study of slavery helps us to better understand other, non-slavery historical topics.  Be sure, in your answer to consider any differences that you might see between slavery in the 17th century and slavery as it developed in the 19th century.





In 1835, Alexis de Tocqueville commented:

            In actual fact, the lawyers do not want to overthrow democracy’s chosen government, but they do constantly try to guide it along lines to which it is not inclined by methods foreign to it. By birth and interest a lawyer is one of the people, but he is an aristocrat in his habits and tastes; so he is the natural liaison officer between aristocracy and people, and the link that joins them.

            The legal body is the only aristocratic element which can unforcedly mingle with elements natural to democracy and combine with them on comfortable and lasting terms. I am aware of the inherent defects of the legal mind; nevertheless, I doubt whether democracy could rule society for long without this mixture of the legal and democratic minds, and I hardly believe that nowadays a republic can hope to survive unless the lawyers’ influence over its affairs grows in proportion to the power of the people.

            If you ask me where the American aristocracy is found, I have no hesitation in answering that it is not among the rich, who have no common like uniting them. It is at the bar or the bench that the America aristocracy is found.

            The more one reflects on what happens in the United States, the more one feels convinced that the legal body forms the most powerful and, so today, the only counterbalance to democracy in that country.

Question:  Have lawyers, over the course of American history, acted as an aristocratic bulwark against the excesses of democracy?  Describe how the legal profession has changed since the time of Jefferson and why.  What have been the effects of such changes upon law and American society?


© 2009.  Thomas D. Russell
Last modified:  18 November 2009