INTRODUCTION

While the Courts of Chivalry may be dead,¹ American courts still remain attuned to the concept of chivalry, even in commercial contexts.² The concept is more than a casual topic of discussion. On occasion, it can rise to a level of judicial concern. For example, in Lee v. Commissioner,³ Judge Cameron, in dissent, wrote in a case involving review of income tax deficiencies and fraud penalties:

It is fundamental in the Anglo-Saxon scheme of justice, recognized at common law and by statutes in practically all the states, that those who are not able to speak for themselves shall be accorded protection by the sealing of the lips of their adversaries as to transactions between them. We ought to apply such a principle of rudimentary justice here. We ought to avoid giving color to the thesis that the exigencies of the exchequer are such that those employed to keep it replenished may deal with taxpayers in any spirit not dominated by absolute fairness, tinctured even by a touch of chivalry and magnanimity.⁴

That chivalry may still form a part of Southern legal life is also demonstrated by the colorful brief submitted by a Georgia attorney in a civil action arising out of a barroom brawl, in which the unsuccessful appellant complained:

In the days of chivalry and knighthood, men of courage would joust for the love of a woman. Damsels in distress would be rescued by fearless knights. It was not only a duty, but an honor to give one's life for one in imminent danger.

The times have changed, like all things, and civilization bellows that chivalry is lost and gone, of another era. The final imprimatur that chivalry is lost in civilization is the courts of our society interpreting the laws to approve of cowardice and strike down the actions of a gallant knight in modern times, for almost having lost his life, in the aid of a damsel in distress.⁵

Chivalry as a concept is, therefore, attentive to and necessary for the protection of the individual. Contrary to popular conceptions, it is not purely concerned with outdated notions of protecting a “fairer sex.” It finds its contemporary expression in discussions of morality in law or, more basically put, in terms of right and wrong. While initially appearing quixotic, the issue is not. To the extent chivalry marks an effort to define acceptable behavior in society in terms of a more lofty ideal of mutual respect, it is vital since it addresses the core of what is occurring in the American legal system today.

The issue is not new. Notions of chivalry in law are implicit in the writings of the Southern poet and practicing lawyer Sidney Lanier (1842-1881). He is dismissed as insignificant by some and heralded by others. Brooks finds importance in Lanier's attention to social problems.⁶ Waggoner dismisses him virtually as a jingle-maker.⁷ Stauffer and Pearce recognize the importance of his attempt to codify rules for verse.⁸ However, Lanier's poetry has not been discussed in terms of its jurisprudential value, nor has it been approached from the perspective of Lanier's legal training.⁹

From 1878-85, Lanier, a veteran of the Civil War and prisoner of war in a Union camp, practiced law in order to survive economically. He did so at his lawyer-father's urging, and worked in his father's office, primarily involving himself in title searches as opposed to courtroom litigation. No reported decisions of Lanier have turned up, consistent with his non-litigation practice, although he has been cited for his poetry.¹⁰

Lanier is most known for his attempts to write poetry in the manner of one writing music. His poetry for the most part is naturalistic and traditional in meter and rhyme. His legal themes are present and can be found within these lyrical expressions. This combination of legal and chivalric themes is not unique among lawyer-poets,¹¹ but continues to warrant attention. The medieval chivalry with which Lanier concerned himself embodied more than stereotypical notions of behavior towards women; it was “a moral system, governing the whole of noble life.”¹² At its core, it commended the knight to serve “justice, right, piety, the Church, the widow, the orphan, and the oppressed.”¹³ To the extent that medieval chivalry, replete with its own specific laws, combined legal practice, with a heightened sense of the place of morality, it provides a window through which to examine current theories of right and wrong. Consonant with the increasingly useful approach afforded by resort to literature to elucidate law, we can do so through the relevant poetry of Sidney Lanier.

His Southern background itself was one of a latter day chivalric code;¹⁴ “[t]hinking of himself as a knight and minstrel, he imagined that the new Confederate nation would embody all that was finest in the chivalric life, and later his prose and verse abounded in figures of paladin and paynim, the tournament and the battle-axe and crossbow.”¹⁵ The notion that law is conduct, and that conduct cannot be separated from morality, persists. Morality is essential to law, regardless of one's views of adherence to rules of law; it is the need to understand the interaction between moral values and rules of law that give morality its relevancy.¹⁶

In discussing Lanier as a legal moralist, I shall relate his poetry to the perspective of Charles Fried in his work Right and Wrong,¹⁷ as well as certain other works exploring the nature of justice in contemporary jurisprudence. It is not my intention to critically or exhaustively survey the growing mountain of work and counterwork, reply and surreply in the journals involving such writers as John Rawls, but rather to outline the major concepts that are establishing the beachhead for a more humanistic approach to legal theory. In so doing, I attempt to reaffirm the importance of literature, particularly that written by those trained as lawyers, as allowing insight into the nature of what law is. The hope is that this will lead to an introspection by practicing members of an increasingly distracted and distressed profession.

Finally, it is interesting to observe that to the extent we return to medieval concepts of chivalry to address Lanier's contribution, we might note in passing that a leading commentator in the jurisprudential and in law and literature fields has already compared contemporary American lawyers to medieval guilds.¹⁸ In discussing a nineteenth century poet who reached back to the fourteenth century for inspiration, we might do well to remember that the more things change, the more they stay the same.¹⁹

I. LANIER AND THE LAWYER AS POET

Like Wallace Stevens, another lawyer-poet, who perceived being a “money-making lawyer” as one of the “practical” lives to lead,²⁰ Lanier wrote to his brother in 1869 that “[i]t is best that you and I make up our minds immediately to be lawyers, nothing but lawyers, good lawyers, and successful lawyers; and direct all our energies to this end.”²¹ Even in his poetic career Lanier continued to display the lawyer's caution and the businessman's concern over money.²² Ultimately, Lanier concluded—unlike Stevens, who after a trepidatious start in private practice became a successful in-house surety attorney—that he could not “settle myself down to be a third-rate struggling lawyer for the balance of my little life, as long as there is a certainty almost absolute that I can do some other thing so much better.”²³

Decades before yet another lawyer-poet, Edgar Lee Masters, made a poetic theme of law and economic injustice in the early twentieth century,²⁴ Lanier focused on the power of law and lawyers to expand the influence of railroads and capitalism. He attacked mercantilism and trade in terms of its impact on the small, previously self-reliant farmers that formed the backbone of the post-bellum South.

By the time Lanier became a lawyer, he had endured imprisonment as a prisoner of war in a Union camp during the Civil War, an arduous journey back home, and a breakdown while teaching at a plantation.²⁵ After learning he had tuberculosis, he abandoned teaching for the presumably less demanding practice of law; in 1868 he entered the law office of his father, Robert Sampson Lanier.²⁶ He began as a clerk and later became a junior partner; though not appearing in court he provided back-up research and advice for those going into court.²⁷ His specialty was difficult property title and probate cases.²⁸

In 1869, 1870, and 1871, at a time when travel was difficult, Lanier was in New York on business and for medical reasons; on at least one of those visits he was involved in a sale of blast furnace plants and other lands,²⁹ indicating an involvement in the “real world” of transactional law. While some view Lanier as “temperamentally ill-suited” for a career in law,³⁰ others generally recognize his proficiency.³¹ Ultimately, it was a temporary absence from law that improved Lanier's health before he returned to law and his health again deteriorated.³²

Like Wallace Stevens, Lanier was knowledgeable of the intricacies of his field, although Lanier found parallel interests in music instead of the modern art that so inspired Stevens. Also like Stevens (who regretted the time lost to poetry in practicing law), Lanier was forced to yield to the demands of his practice: “‘I have not put pen to paper in a long time. … How I thirst to do so, how I long to sing …—a thousand various songs oppress me unsung—, is inexpressible. Yet the mere work that brings bread gives me no time.’”³³ In another letter he wrote “[m]y head and my heart are both so full of poems which the dreadful struggle for bread does not give me time to put on paper that I am often driven to headache and heartache purely for want of an hour or two to hold a pen.”³⁴ (The parallel to Stevens is intriguing: Lanier's father-lawyer, as well, stressed the financial security of the law office,³⁵ but Lanier eventually left law for a career in music and academia. Both bemoaned the time lost for poetry, although Stevens of course remained a practicing lawyer. Both traveled in the course of their business and that travel influenced their writings. Both were involved in fairly sophisticated, if not tedious, specialties.)

As a lawyer, Lanier had little occasion to directly address issues of right and wrong in his field of practice. Nonetheless, while some read his poems purely in terms of social protest, I suggest that his legal training afforded him an avenue to approach this protest from a jurisprudential perspective, and it is impossible to separate law from the social and economic environment addressed in Lanier's poetry. Given the interweaving of legal terminology in his poetry, as well as Lanier's own broad philosophical readings, we can identify legal arguments of right and wrong, anticipating current work in the area.

II. CONCEPTS OF RIGHT AND WRONG

Right and Wrong is a book by Professor Charles Fried in which he argues for roles for individuals in society that fulfill demands of justice but reject a purely utilitarian approach based upon the “greatest good.” The so-called economic analysis of rights, based upon a cost-benefit analysis, fails because of its moral vacuity. Discretion remains in the individual as to the contribution to be made, provided that certain minimum moral commitments exist.

Fried posits absolute concepts of right and wrong, which are preemptive of choice.³⁶ Such norms are targeted towards proscription of intentional, rather than inadvertent, acts.³⁷ While Fried acknowledges the difficulty in distinguishing between intention of acts and intention of consequences, he nonetheless finds a connection between intention and the categorical norms of right and wrong in the common denominator of the “central concept” of “respect for persons.”³⁸ He elaborates that “[i]t is wrong to do those things which violate the integrity of other persons, but whether we have indeed done wrong will depend on whether as agents we have engaged our persons in causing harm to another.”³⁹ Desire and consequence are opposite aspects of intention.⁴⁰ Law separates intention from consequence, since judgments are based upon unity of intention and result.⁴¹ At the core of Fried's argument over respect for persons and his theory of rights is the central notion that “there are some things we may not do to each other, no matter what, some things that are categorically wrong.”⁴² His two categorical wrongs are doing harm and lying.⁴³

Rights are privileges defined in such a way that to interfere with them would violate the first precept of doing harm; in other words, if persons have negative rights that prevent someone from doing harm to them, and persons have positive rights that allow them to do what they want, then a right is ultimately considered to be “a function of the logically prior judgment that intentional interference with the exercise of the privilege—even after calculation of the balance of advantage—would be wrong.”⁴⁴ In criticizing the economic analysis of rights, Fried concludes that rights are different from interests because to violate a right is not merely bad, but wrong.⁴⁵ Therefore, in correlating wrongs with rights of victims, it becomes clear that “harming is wrong as it violates a right.”⁴⁶ Moving to his “substantive” rights theory, Fried suggests that “substance and form go together: a substance of personal integrity and a form which is the form of rights, rights as categorical entities morally tied by bonds of necessary argument to the person whom they protect and who is invested with them.”⁴⁷

Positive rights are a function of an objective entitlement of the individual to a share of the limited resources of a society.⁴⁸ Common humanity is the source of positive rights.⁴⁹ Negative rights are not simply general rights to be left alone or not imposed upon, but rather are particular and afford the system its concreteness and specificity.⁵⁰ Negative rights based upon personal and physical integrity constrain positive rights.⁵¹

As for the lawyer in Fried's system, he “is not morally entitled, therefore, to engage his own person in doing personal harm to another, though he may work the system for his client even if the system then works injustice.”⁵² This is so because the wrong is institutional and does not exist outside of a specified legal framework.⁵³

At their base, these are chivalric concepts, whether expressed in those terms or not. Chivalry was a reaction to the brutalization of the Middle Ages. The knights and nobles who practiced it held to an internal morality that was enforced by a common acceptance of it. Chivalry, while embodying principles common to the church and state, contained its own notion of “fair play.” I suggest that chivalry had, at its basis, a similar theme to that of Fried: a reaction to the economic or self-serving justification by others for the exploitation of a workforce.

Lon L. Fuller adopts a similar viewpoint in comparing his morality of aspiration with morality of duty, and finding at the heart of his system the prescription that people must respect and communicate with one another.⁵⁴ In arguing for external as well as internal morality of law, Fuller notes that his “one central indisputable principle of what may be called substantive natural law—Natural Law with capital letters—I would find it in the injunction: Open up, maintain, and preserve the integrity of the channels of communication by which men convey to one another what they perceive, feel and desire.”⁵⁵ Part of that internal morality is a respect for man's self-determination, and although internal morality can be neutral over a wide variety of areas, “[i]t cannot be neutral in its view of man himself.”⁵⁶

In this regard, a literary definition of morality is not too different from the concept posited by Fried and Fuller. In On Moral Fiction, John Gardner defines morality as,

nothing more than doing what is unselfish, helpful, kind, and noble-hearted, and doing it with at least a reasonable expectation that in the long run as well as the short we won't be sorry for what we've done, whether or not it was against some petty human law. Moral action is action which affirms life.⁵⁷

These are chivalric notions.

John Rawls complements the discussion of the subject of justice, which he defines as “the basic structure of society, or more exactly, the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation.”⁵⁸ The main idea of his theory begins with justice as fairness with a position of equality of all citizens, who have chosen their contract from ignorance, with none knowing his or her place in society.⁵⁹ It is this equality that leads to a rejection of an utilitarian analysis that seeks the greatest good for the greatest number, and instead focuses on two principles: (1) there must be an equality in assignment of rights and duties, and (2) social inequality can only be just if it results in compensating benefits for the remainder of society.⁶⁰ These principles are more specifically stated as (1) “each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others” and (2) “social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone's advantage, and (b) attached to positions and offices open to all.”⁶¹ One aspect of this latter principle is that “undeserved inequalities call for redress.”⁶² Individuals have two natural duties, later iterated by Fried: to uphold justice and not to injure.⁶³

Rawls notes that his principles of justice and his concept of justice as fairness take priority over efficiency and social and economic advantage.⁶⁴ As he writes, “[t]he long range aim of society is settled in its main lines irrespective of the particular desires and needs of its present members.”⁶⁵ Utilitarianism, which has as its basis the argument that the greatest good will be produced by rejection of individual ideals in favor of a larger one, neglects the ideal that Rawls injects into his first principle, and thus yields uncertainty; the stability of the system is a key factor for Rawls, and his argument flows from the initial contract based upon fairness.⁶⁶ In lines that will find support from Lanier's poems, Rawls writes: “the essential point is that despite the individualistic features of justice as fairness, the two principles of justice are not contingent upon existing desires or present social conditions.”⁶⁷

In sum, Rawls states his first principle to be that “[e]ach person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all,” and his second principle as “[s]ocial and economic inequalities are to be arranged so that they are both: (a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and (b) attached to offices and positions open to all under conditions of fair equality of opportunity.”⁶⁸ He then sets out his two first priority rules with the priority of liberty and priority of justice.⁶⁹

This all too brief summary is meant only to set the stage; the complexity of thought of these writers is the subject of extended discussion. I have made no effort to explore the nuances, the criticisms, and the subsequent replies. I mean only to show that the common thread of the major writers about “justice” is that of individual respect, and that a system that ignores it cannot have legitimacy. If this is, indeed, at the core of Fried in particular, and Rawls and Fuller in general, then it is also at the core of Lanier's poetry.

III. LANIER AS LEGAL MORALIST

Fried's two precepts of not harming others and not lying form linchpins of Lanier's poetry and, therefore, enable us to discern the influence of his legal practice upon his poetry.

In “Individuality,”⁷⁰ Lanier focuses upon a single cloud that drifts away from others to brood upon mankind. It is a poem in which he attacks, in 1878-79, factories and merchant ships as symbols of the overall enemy of trade. While the cloud is a “visible conscience,” it nonetheless is criminally “arraign[ed]” on the grounds that it sends lightning to kill a child, and also causes ruinous rains.⁷¹

Lanier asks the cloud “why not plunge thy blades about / Some maggot politician throng / Swarming to parcel out / The body of a land, and rout / The maw-conventicle, and ungorge Wrong?”⁷² He criticizes the lack of control, since “not as clouds dim laws have plann'd / To strike down Good and fight for Ill,— / Oh, not as harps that stand / In the wind and sound the wind's command: / Each artist—gift of terror!—owns his will.”⁷³ The cloud is seen as an individual that must exercise individual control and not otherwise respond to group morality. The bitter and cynical view of legitimate lawmakers reflected in the reference to maggot politicians stems from the reality of Lanier's time and place. It is also an indictment of “Rule of Law” principles.

Lanier repeats this theme of individual morality as preferable to amoral positivist principles in various other poems that attack “trade” as antithetical to the concept of respect for individuals. In various poems relating to corn, which Lanier proffers as the salvation of the cotton-dependent Southern small farmer, the “terrible Towns” noted in “The Waving of the Corn”⁷⁴ where trading is done are rendered synonymous with evil. Lanier perceived trade itself to be a source of evil in the feudal system,⁷⁵ infecting the otherwise noble age of chivalry he so admired.

Lanier was concerned with the economic imprisonment of Southerners during Reconstruction, just as peasants were economically imprisoned during the Middle Ages, and addressed this imprisonment in his poems “Corn”⁷⁶ and “Nine from Eight,”⁷⁷ as well as his essay, The New South. In “Corn,” mortgages entrap the careless landowner, who “sailed in borrowed ships of usury— / A foolish Jason on a treacherous sea. …”⁷⁸ He is “[a] gamester's catspaw and a banker's slave.”⁷⁹ By way of comparison, in the Middle Ages, the law of private property was assuming significance; ownership was delineated with wooden poles stuck into the ground, and hedges marked specific property as well.⁸⁰

Lanier portrayed most mortgages as an oppression upon individuals struggling to survive in the Southern economy; perhaps his in-depth exposure to them through his title work helped shape his understanding of the impact of these liens on property.⁸¹ Mortgages were a pervasive and significant, if not controversial, means of property control and security. Following the Civil War, which had disrupted the American legal system, the American philosophy changed from a “frontier” mentality to limitation of growth, of “hold[ing] the line.”⁸² In the South in particular, a major shift occurred after the Civil War in terms of landlord-tenant relationships: tenant's rights became strictly commercial contracts, and more power vested in landlords.⁸³

“Corn” begins with idyllic, almost eerie sensuousness in portraying fields of corn. The sassafras tree by the fence “[c]ontests with stolid vehemence / The march of culture, setting limb and thorn / As pikes against the army of the corn.”⁸⁴ The poem shifts to fields where corn's “mild content”⁸⁵ rebukes the lands built on shifting sands of trade. Corn symbolizes a kind of self-reliant integrity, as opposed to cotton (which brought ruin upon the chivalric South). Cotton is “coquette;”⁸⁶ it is uncertain and forces farmers to watch for “telegram[s] of Future Sale.”⁸⁷ Such dependency violates Rawls's first principle; it creates uncertainty and contravenes the notion of fundamental fairness even despite a (perceived) greater good in a legal system that protects nineteenth-century trade. These legalistic references are no accident. We know that Lanier wrote extensively to Judge Beckley and received comment from him on “Corn.” Whether expressed in jurisprudential philosophy or not, Lanier clearly articulated an argument of right and wrong that had at its core a notion akin to Fried's directive to uphold justice and not hurt others.

In “Corn” Lanier elaborates the moralistic theme of chivalry: the stalks of corn are “[t]eaching the yeomen selfless chivalry / That moves in gentle curves of courtesy.”⁸⁸ This is set against the “whimsical” alternations and “capricious Commerce” of trade, with “restless-hearted children left to lie / Untended there beneath the heedless sky, / As barbarous folk expose their old to die.”⁸⁹ Once again there is a Rawlsian argument to be made by Lanier that justice cannot be dependent upon social conditions. Farmers who are servants of Cotton are caught up in fields that are a “gambler's hell;” and each year the “farmer to the neighboring city ran; / Passed with a mournful anxious face / Into the banker's inner place;” and ultimately procured “small loans by pledges great renewed, / He issues smiling from the fatal door, / And buys with lavish hand his yearly store / Till his small borrowings will yield no more.”⁹⁰

Trade symbolizes not only the influence of the North, but a legal system—it cannot be separated from a social or economic system—that protects and rewards oppressive behavior. Trade represented the kind of utilitarianism and economic analysis of rights rejected by Fried and Rawls. So much so that by 1888, Lanier, wrote in “Tyranny” that “Young Trade is dead, / And swart Work sullen sits in the hillside fern / And folds his arms that find no bread to earn, / And bows his head.”⁹¹ Lanier, therefore, practiced law at a time not only of change, but change that reflected power and political interests in, perhaps, an unprecedented way, and he implicitly argued for a jurisprudence based upon something other than profit for the greatest number. Indeed, in “The Symphony,” he asks the question: “Does business mean, Die, you—live, I?”⁹² His response is that if so, Trade “sings a lie.”⁹³ This bold expression suggests Rawls's argument that social conditions and economic benefit cannot legitimize an otherwise individually unjust system.

In “The Symphony” Lanier indicates that art comes from the heart, the center of morality, as opposed to the head, symbolizing a more clinical sense or, simply stated, rule. He laments a system where honor has gone and justice is “smirch-robed.”⁹⁴ Opening the poem with the wish that Trade was dead, he writes: “The poor, the poor, the poor, they stand / Wedged by the pressing of Trade's hand / Against an inward-opening door / That pressure tightens evermore.”⁹⁵

“The Symphony” puts the lie that chivalry is permanently dead. The poem contains a cry for restoration of chivalry. “Giant Trade” has “slain / All great contempts of mean-got gain / And hates of inward stain.”⁹⁶ All that the “smirch-robed Justice” can do is “feebly scold / At Crime all money-bold.”⁹⁷ This essentiality to the place of moral concern in a legal system is emphasized in “Psalm of the West,” in which Lanier writes that “straight Law, in freedom, will curve to the rounding of grace.”⁹⁸ While it might appear that a “curving law” is incompatible with Fuller's notion of consistency of law, Lanier is actually lending credence to Fuller's concept of law that it “cannot be neutral in its view of man himself,” as quoted above.⁹⁹ It is also further recognition of Fried's proscription against harming one another, which must be at the basis of a legitimate legal system.

Like John Rawls, Lanier implicitly argues that a society needs a concept of justice, and that concept is a function of value, right, and moral worth. In discussing the role of justice, Rawls states “[a] theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust.”¹⁰⁰ Lanier's conception is similar, as in his condemnation of corrupt lawmakers—those who posit the rules of law—and, therefore, a positivist system.

I have mentioned the dialogue poems of Lanier. Lanier uses dialect and first-person poems to emphasize the condition of the poor and the impact of law upon them. They are entitled to value, right, and moral worth. In “Nine from Eight” an impoverished farmer is cheated and bewildered in a sea of law and legal terms: “But shuh! 'fore I even had settled my price / They tuck affidavy without no bones / And levelled upon me fur all ther loans.”¹⁰¹ In “Jones's Private Argyment”¹⁰² farmers are subject to bankers and warehousemen, prisoners to loans, and spend their time staving off bankruptcy. In this poem Lanier's protagonist, Jones, swears “[t]hat farmers must stop gittin' loans, And git along without 'em.”¹⁰³ He urged Southern farmers to plant corn instead of cotton to get away from the bankers and to prevent bankruptcy. What these poems share is a common thread with “Corn” and “Symphony.”

In his satirical ballad about Christmas Eve, “The Hard Times in Elfland,”¹⁰⁴ published in 1877, Santa Claus complains about the bad times in Elfland: “‘All Elfland's mortgaged! And we fear / The gnomes are just about to strike.’”¹⁰⁵ The railroads want to replace Santa, and Santa signed the contract: “‘My woes began, that wretched day. / The President plied me like a tool. / In lawyer's fees, and rights of way, / Injunctions, leases, charters, I / Was meshed as in a mighty maze.’”¹⁰⁶ This last line is a fascinating (if not coincidental) foreshadowing of the phrase “seamless web” that some use as a euphemism for law. The theme of “Elfland” is not complex: Even a dignified tradition can be ruined by greed, and that greed protected by laws that ignore fundamental concepts of justice. At its base, this is the premise of Fried's Right and Wrong¹⁰⁷.

If trade and commerce are synonymous with contemporary legal analyses dependent upon economic rights and utilitarianism, then Lanier's South has parallels to post-industrial America today. He also recognized parallels in medieval France. The final poem to be examined in detail, then, has its basis in an event from that time.

In “The Jacquerie—A Fragment”¹⁰⁸ Lanier contrasted the practice of amorality of established institutions with the morality of the individual, drawing a comparison with medieval France to the South in which Lanier lived and worked.¹⁰⁹ Political institutions were not responsive to the plight of the South, as reflected in his bitter poem “Laughter in the Senate:”

The tyrants sit in a stately hall;
They jibe at a wretched people's fall;
The tyrants forget how fresh is the pall
                    Over their dead and ours.
Look how the senators ape the clown,
And don the motley and hide the gown,
But yonder a fast rising frown
                    On the people's forehead lowers.(110)

“The Jacquerie” opens with a description of a time and place marked by forces of hate; law is a function of revenge.¹¹¹ The Church, a symbol of legitimacy, “is far too fat” to win the people's faith and lead them.¹¹² Similarly, the kings of France, representing the rule of law, “in piteous file,” wear “deadly diamonds … in their crowns,” “[a]s if they smiled to think how men are slain / By the sharp facets of the gem of power.”¹¹³ These are the words of the Franciscan friar John de Rochetaillade in the poem. His mystical vision included the peroration that the established order no longer sufficed to provide justice: “Now if the priesthood put such shame upon / Your cry for leadership, can better help / Come out of knighthood?”¹¹⁴

The cripple, Gris Grillon, without limbs and in a basket, is confronted by the knight, Lord Raoul; Grillon had fallen in battle and been mutilated fighting off four men to save Lord Raoul, and Lord Raoul's horse had knocked Grillon down and out as Raoul apparently retreated to save himself. Raoul rode into the place where Friar John was speaking, ignoring the sycophantic urgings of his entourage to avoid the scene. After Grillon's taunt to Raoul reciting this, Raoul tries to stab Grillon and is thrust aside by Grillon's son; as one of Raoul's lords pins the son and attempts to cut off his ears, the Virgin Mary appears, and the son is saved.¹¹⁵

“The Jacquerie” reflects Lanier's interest in the peasant uprising in France.¹¹⁶ He worked on it at the same time he was studying law.¹¹⁷ The revolution in 1358 in France, termed The Jacquerie, arose from sheer hatred and frustration by the peasantry.¹¹⁸ Law seemed to favor the commercial interests.¹¹⁹ On the other hand, the medieval lawyer (in a chivalric time that Lanier idealized) was preoccupied with justice as a concern.¹²⁰ The peasants, like the Southerners, were subject to laws made in distant places, far removed from reality; Lanier mourned “your fall into daintier hands / Of senators, rosy fingered, / That wrote while you fought, / And afar from the battles lingered.”¹²¹

De Bellis suggests that Lanier used chivalry to focus on good and evil, and inject the element of morality into institutional relations.¹²² In a letter to Judge Beckley, Lanier expressly referred to

‘[t]hat chivalry which every man has, in some degree, in his heart; which does not depend upon birth, but which is a revelation from God of justice, of fair dealing, of scorn of mean advantages; which contemns the selling of stock which one knows is going to fall, to a man who believes it is going to rise, as much as it would contemn any other form of rascality or of injustice or of meanness—it is this which must in these latter days organize its insurrections and burn up every one of the cunning moral castles from which Trade sends out its forays upon the conscience of modern society.’¹²³

Lanier's heroic view in “The Jacquerie,” contrasted by the bombastic self-interest in “Laughter in the Senate,” attacks the notion that simply because a system is efficient it must be justifiable. Just as Fried argues that efficiency is irrelevant “if the initial endowments are somehow improper,”¹²⁴ so Lanier protests those arguments that are based upon a justification of the efficiency of trade and commerce. Taken cumulatively, and allowing for the now-perceived deficiencies of nineteenth century poetic style, we can look past that and discern a very modern bitter edge to the philosophies set forth in his poetry. “The Jacquerie,” fragment though it is, exemplifies this.

CONCLUSION

One commentator has summed up Lanier as being able to

neither bear with his South's sense of its own peculiar community, in which there was no felt need to establish the dignity and stature of the self; nor could he discover a way of establishing that dignity and stature which did not cut the self off entirely from its community.¹²⁵

It is this keen concern for individuality and self-dignity that places him within the realm of Fried's discussion of right and wrong.

Interestingly enough, Fuller posits the morality of duty at the end of the scale concerned predominantly with traders and economics; it is a negative-oriented morality that is based upon mutual survival and necessity. It is implicitly “evil” in that there is no affirmative basis to it; there is a morality of duty because it suits those honoring it to do so. On the other hand, there is and must be a morality of aspiration, even if there can be no definitive exposition of an ultimate good. These concepts are Lanier's as well: he portrays the implications of unchecked morality of duty without regard to morality of aspiration.

The express legal references in the amusing and satirical “Elfland,” and the more bitter metaphors found in “Corn” and “Symphony,” demonstrate Lanier's facility with legal process, and his willingness to integrate such concepts in his poetry. I suggest that his strong social consciousness was inseparable from his legal work, and that on a certain level his poetry—often taken as social criticism—may be placed neatly within the discussion of jurisprudential themes in poetry. In other words, there is something to be learned from practicing attorneys who also wrote extensive poetry; to the extent that their work comments upon American society, a uniquely legal perspective may be present and be as significant a contribution to jurisprudence.

Notes

1. William Blackstone, Commentaries *264-65. The High Court of Chivalry, successor to the Court of Constable and Marshall, last met in 1955. Charles Donahue, Jr., Ius Commune, Canon Law, and Common Law in England, 66 Tul. L. Rev. 1745, 1755 (1992).

2. See, e.g., United States v. MacKenzie, 510 F.2d 39, 41-42 (9th Cir. 1975) (in deciding whether federal law defers to or adopts state laws regarding questions of deficiency when United States is plaintiff, court noted that it “cannot say that Nevada's and Arizona's concern in protecting their debtors from economic overreaching in foreclosure sales is less weighty than Texas' interest (whether spawned by chivalry or chauvinism) in shielding a married woman's property from debts that she acquired.”).

3. 227 F.2d 181 (5th Cir. 1955), cert. denied, 351 U.S. 982 (1956).

4. Lee, 227 F.2d at 186-87 (Cameron, J., dissenting).

5. Fagan v. Atnalta, Inc., 376 S.E.2d 204, 206 (Ga. Ct. App. 1988) (Deen, J., dissenting) (quoting Appellant's Brief in Support of Motion for Rehearing).

6. Van Wyck Brooks, A Chilmark Miscellany 301 (1948).

7. Hyatt H. Waggoner, American Poets from the Puritans to the Present 235-40 (1968).

8. Donald B. Stauffer, A Short History of American Poetry 123-31 (1974); Roy H. Pearce, The Continuity of American Poetry 236-46 (1961).

9. “Men trained in the law utterly dominated Southern literature between 1830 and 1870.” Robert A. Ferguson, Law and Letters in American Culture 291 (1984). In addition to Lanier, Ferguson mentions Henry Timrod as one of “the most important poets.” Id.

10. See Gibson v. State, 238 S.E.2d 562, 562, 563 n.1 (Ga. Ct. App. 1977) (a case involving motor vehicle theft, in which the defendant hid himself “up to his eyeballs” in Lake Lanier, which the court noted was named after Sidney Lanier, author of “Song of the Chattahoochee.”) Lanier was quoted in an article co-authored by former Attorney General Griffin Bell, in a tribute to law professor Daniel J. Meador. Griffin B. Bell & Terrence B. Adamson, Daniel J. Meador—Visionary, 80 Va. L. Rev. 1209, 1215 (1994) (quoting from “The Marshes of Glynn”). He was also quoted in Carl Erhardt, The Battle Over “The Hooch”: The Federal-Interstate Water Compact and the Resolution of Rights in the Chattahoochee River, 11 Stan. Envtl. L.J. 200 (1992) (quoting from “The Song of the Chattahoochee.”).

11. For example, John Gardner argues that Geoffrey Chaucer was legally trained and that this training manifested itself throughout his poetry. John Gardner, The Life and Times of Chaucer 129-37 (1977). See also Ferguson, supra note 9, at 96-128; Paul D. Carrington, Law and Chivalry: An Exhortation from the Spirit of the Hon. Hugh Henry Brackenridge of Pittsburgh (1748-1816), 53 U. Pitt. L. Rev. 705, 708 (1992) (for discussion of a lawyer-writer who wrote some (unsuccessful) poetry). Brackenridge's work, Modern Chivalry, derived from Cervantes' Don Quixote and satirized the legal, political, and social situation in the Pennsylvania of his day. Brackenridge equated a modern chivalry with the idea of pure democracy. Carrington, supra at 714.

12. Barbara W. Tuchman, A Distant Mirror 62 (1978).

13. Id. See also Sir Arthur Bryant, The Age of Chivalry (1963).

    [I]n place of the old suicidal law of tribal vengeance and the bloody anarchy of might is right had been substituted an elaborate code of chivalry and even, within the narrow bounds of class, of gentleness; of comradely tenderness towards one's knightly companions, of mercy and magnanimity in victory, of fidelity to vows, of fine manners.

    Id. at 240. He might almost have been describing the antebellum South in nineteenth century America, or even the idealized vision of the South that some hold. The replacement of vengeance by a code of conduct is the beginning of legal institutions. Richard A. Posner, Law and Literature: A Misunderstood Relation 27-33 (1988).

14. For an interesting discussion of Southern virtue, see Thomas L. Shaffer, Growing Up Good in Maycomb, 45 Ala. L. Rev. 531 (1994), part of a symposium on To Kill a Mockingbird.

15. Brooks, supra note 6, at 298.

16. See Don Welch, The State as a Purveyor of Morality, 56 Geo. Wash. L. Rev. 540 (1988).

17. Charles Fried, Right and Wrong (1978). See also Charles Fried, Constitutional Doctrine, 107 Harv. L. Rev. 1140 (1994). Fried argued against rigid adherence to doctrine, and noted that “[a] judicial decision is both an intellectual and a moral act.” Id. at 1155.

18. Richard A. Posner, The Material Bases of Jurisprudence, 69 Ind. L.J. 1, 2-3 (1993).

19. For the purists, “Plus ça change, plus c'est la même chose.” Alphonse Karr, Les Guêpes [Janvier 1849], quoted in Bartlett's Familiar Quotations 443:19 (John Bartlett & Justin Kaplan eds., 16th ed. 1992).

20. Holly Stevens, Souvenirs and Prophecies: The Young Wallace Stevens 53 (1977).

21. Edwin Mims, Sidney Lanier 99 (1968).

22. In a letter near the end of his life, Lanier wrote to his publisher:

    I should have an uncomfortable sense of monotony, in sending you another book, but this time it is a volume of my poems and offers some contrast to those which have been offered you before.

    … Please make me a cash offer for the book,—if you see any profit in it. I am absolutely obliged to raise ready money.

    Letter to Scribners, May 22, 1879, in Department of Rare Books and Special Collections, Princeton University Libraries, Princeton, New Jersey. He displays a frugalness and questioning of costs in connection with the publication, and was intimately involved in the process. See Letter to Scribners, dated May 20, 1880 (Princeton Collection).

23. Letter from Lanier to his father (Nov. 29, 1873), quoted in Mims, supra note 21, at 124-25.

24. I have explored this in Richman, Edgar Lee Masters and the Poetics of Legal Realism, 32 Cal. W. L. Rev. 103 (1994).

25. Thomas D. Young, “Sidney Lanier 1842-1881,” in American Writers 349, 349-50 (Leonard Unger ed., Supp. I pt. 1 1979).

26. Id. at 351.

27. Id. at 352.

28. Id.

29. Mims, supra note 21, at 114; see also Lincoln Lorenz, The Life of Sidney Lanier 80 (1935).

30. Alice Hall Petry, “Sidney Lanier,” in 4 Critical Survey of Poetry: English Language Series 1658 (Frank N. Magill ed., 1982).

31. Lorenz, supra note 29, at 80-81.

32. Id. at 85.

33. Young, supra note 25, at 354.

34. 1 William M. Baskervill, Southern Writers: Biographical and Critical Studies 211 (1897).

35. Young, supra note 25, at 356.

36. Fried, supra note 17, at 9-10. See also Edward Cahn, The Moral Decision: Right and Wrong in the Light of American Law (1955). There seems little commentary on Cahn, who nonetheless makes an effort to address in lay, not simplistic, terms the issue of morality and right and wrong as reflected in American law.

37. Fried, supra note 17, at 21-22.

38. Id. at 24.

39. Id.

40. Id. at 27.

41. Id.

42. Id. at 28.

43. Id. at 30-78.

44. Id. at 84.

45. Id. at 104.

46. Id.

47. Id. at 105.

48. Id. at 130-31.

49. Id. at 118.

50. Id. at 132.

51. Id. at 139-43.

52. Id. at 193.

53. Id. at 192.

54. Lon L. Fuller, The Morality of Law (rev. ed. 1969).

55. Id. at 186.

56. Id. at 162.

57. John Gardner, On Moral Fiction 23 (1978).

58. John Rawls, A Theory of Justice 7 (1971).

59. Id. at 12.

60. Id. at 14-15.

61. Id. at 60.

62. Id. at 100.

63. Id. at 108-17.

64. Id. at 261.

65. Id.

66. Id. 262-63.

67. Id. at 263.

68. Id. at 302.

69. Id. at 302-03. For a critique of Fuller and Rawls in the context of an argument for a reinterpretation of the concept of Rule of Law, see Margaret J. Radin, Reconsidering the Rule of Law, 69 B.U. L. Rev. 781 (1989). I cite this article (which is only one of many, of course, discussing Rawls and Fuller) because of the author's attempt to argue for a rule of law that is consistent with Lanier's implicit view of law as a “pragmatic normative practice.” Id. at 819. The common thread is a Lanier-like one that recognizes an underpinning of the necessity of rules but also the particular social, political, and practical environment.

70. Sidney Lanier, “Individuality,” in The Poems of Sidney Lanier (Mary D. Lanier ed., 1918). All quotations from poems are taken from The Poems of Sidney Lanier.

71. Id. at 10-11.

72. Id. at 11.

73. Id. at 12.

74. Sidney Lanier, “The Waving of the Corn,” in The Poems of Sidney Lanier, supra note 70, at 23.

75. Mims, supra note 21, at 157-59 (quoting letter from Sidney Lanier to Judge Logan E. Beckley, later Chief Justice of the Supreme Court of Georgia (Nov. 15, 1874)).

76. Sidney Lanier, “Corn,” in The Poems of Sidney Lanier, supra note 70, at 53.

77. Sidney Lanier, “Nine From Eight,” in The Poems of Sidney Lanier, supra note 70, at 177.

78. Lanier, supra note 76, at 57.

79. Id. at 58.

80. A History of Private Life II: Revelations of the Medieval World II (Georges Duby ed. & Arthur Goldhammer trans., 1988).

81. For a brief overview of the place of the law of mortgages in American law, see Lawrence M. Friedman, A History of American Law 215-18 (1973) and authorities cited therein.

82. Id. at 295-96.

83. Id. at 373-74.

84. Lanier, supra note 76, at 54.

85. Id. at 56.

86. Id. at 57.

87. Id. at 58.

88. Id. at 55.

89. Id. at 56-57.

90. Id. at 57-58.

91. Sidney Lanier, “Tyranny,” in The Poems of Sidney Lanier, supra note 70, at 94.

92. Sidney Lanier, “The Symphony,” in The Poems of Sidney Lanier, supra note 70, at 61.

93. Id.

94. Id. at 68.

95. Id. at 60.

96. Id. at 68.

97. Id.

98. Sidney Lanier, “Psalm of the West,” in The Poems of Sidney Lanier, supra note 70, at 115.

99. Fuller, supra note 54, at 162.

100. Rawls, supra note 58, at 3.

101. Lanier, supra note 77, at 178.

102. Sidney Lanier, “Jones's Private Argyment” in The Poems of Sidney Lanier, supra note 70, at 183.

103. Id.

104. Sidney Lanier, “The Hard Times in Elfland,” in The Poems of Sidney Lanier, supra note 70, at 159.

105. Id. at 164.

106. Id. at 165.

107. See supra note 17.

108. Sidney Lanier, “The Jacquerie—A Fragment,” in The Poems of Sidney Lanier, supra note 70, at 191.

109. See Jack De Bellis, Sidney Lanier 7 (Georgia Humanities Council: 1988) [hereinafter DeBellis I]; see generally Jack De Bellis, Sidney Lanier, 43-45 (Sylvia E. Bowman ed., 1972).

110. Sidney Lanier, “Laughter in the Senate,” in The Poems of Sidney Lanier, supra note 70, at 223. See also Mims, supra note 21, at 223.

111. See generally Posner, supra note 13, at 25-70.

112. Lanier, supra note 108, at 199.

113. Id. at 197.

114. Id. at 202.

115. Id. at 206-11.

116. Mims, supra note 21, at 38.

117. Id. at 100-01.

118. For a general account, see Tuchman, supra note 12, at 176-82. Those interested in a general perspective on peasantry itself should review the introduction by John Berger to his trilogy of novels, John Berger, Into Their Labours xii-xxix (1990).

119. Morris Bishop refers to the commercial courts set up in France to settle disputes among merchants. Morris Bishop, The Horizon Book of the Middle Ages 183 (Norman Kotker ed., 1968). In France the merchant class, the bourgeoisie, formed the third estate, and their legal interests were intertwined with church interests. Id. See also R.W. Southern, The Making of the Middle Ages 148-51 (1953) for a discussion of secular and religious courts that were a prelude to fourteenth-century legal France, and Walter Ullmann, A History of Political Thought: The Middle Ages 12-13 (1965), noting that the Middle Ages were a time in which two competing theories of law and government were in play: the ascendent theory, in which law derived from communal wishes, and the descendent theory, in which law was imposed from rulers. Feudal society itself was contract-based. Id. at 147.

120. Deborah L. Rhode, Ethical Perspectives on Legal Practice, 37 Stan. L. Rev. 589, 632 n.147 (1985), and sources cited therein. Compare Gordon A. Christenson, Uncertainty in Law and its Negation: Reflections, 54 U. Cin. L. Rev. 347, 357 (1985) (comparing “advocates who represent a particular morality or a particular social philosophy fight and prevail as warriors and advocates in an existing decision making process, akin to chivalry, aimed at changing official behavior or custom by fighting injustice, admittedly a subjective construct”).

121. From Steel in Soft Hands and To Our Hills, unpublished poems reprinted in part in Mims, supra note 21, at 93.

122. De Bellis I, supra note 109, at 7.

123. Quoted in Mims, supra note 21, at 158-59.

124. Fried, supra note 17, at 93.

125. Roy H. Pearce, The Continuity of American Poetry 237 (1961). Compare Waggoner, supra note 7, at 235-40 (for an unsympathetic view of Lanier) with Stauffer, supra note 8, at 123-31 (for a more sympathetic portrait).