Susanna Blumenthal
“The Value of Prayer”
In 1872, the English physicist John Tyndall caused a transatlantic sensation by endorsing a proposal to measure the “absolute calculable value of prayer” in order to obtain “clearer notions than we now possess of the action of ‘Providence’ in physical affairs.” His purported aim was to settle a long-standing dispute between religious believers “affirming the habitual intrusion of supernatural powers in answer to the petitions of men” and those “questioning, if not denying any such intrusion” by means of a quantitative experiment involving “the sick and dying” which would “displace assertion by demonstration as regards the momentous point in question.” To determine “the extent or degree to which prayer is effective,” it was to be tested like any other remedy put forward as a cure: hospitalized patients suffering from a malady whose “natural history” was well understood were to be divided two classes, only one of which would be the object of “special prayer by the whole body of the faithful” for several years to discover whether the practice had any effect on the duration of sickness or morality-rate. Surely this was an offer that pious men could not refuse, as it presented the opportunity “of demonstrating to the faithless an imperishable record of the real power of prayer.”
There was reason to believe the proposed test – called “the Prayer-Gauge” – was not suggested in earnest, and it was swiftly rebuked as “an unworthy piece of literary irony” by defenders of religious orthodoxy. It was nonetheless made the stuff of sermons and tracts on both sides of the Atlantic in the last quarter of the nineteenth century. This was in no small part because the likes of Francis Galton took it upon themselves to offer their own empirical proofs, going to show that lawyers and slave-traders lived longer and enjoyed greater prosperity than clerics and missionaries, while Tyndall took to the American lecture circuit, finding a receptive audience among scientific men and earning a star-studded farewell banquet at New York’s Delmonico’s, which included the minister Henry Ward Beecher and the lawyer-statesman William M. Evarts. Understood as a telling battle in the Victorian war between science and religion, the storied Prayer-Gauge Debate is commonly used to illustrate the complexities of secularization as a historical process, not least because it engendered renewed popular and professional interest in faith healing and psychical research in the decades straddling 1900. Indeed, the attendees of an 1885 international conference on “divine healing and true holiness” directly answered “Professor Tyndall” by affirming they now had “sufficient evidence to show that prayer is a power, a force, an answer—sufficient to prove that Christ is a Saviour of the body as well as the soul.”
As scientists and clerics contended over the value of prayer, they also revealed themselves to be at odds over the meaning of value and the means by which it was divined. In the spirit of this conference, my paper focuses on this dimension of their disputations – on what the prayer-gauge controversy can teach us about value – with a particular interest in the role of law in shaping the terms of these debates and providing modes and means of resolving them. To this end, my analysis centers on civil and criminal cases where the value of the services of faith healers and other sorts of purveyors of prayers was called into question, including but not limited to lawsuits sounding in fraud. These courtroom contests afford revealing perspectives on the ways value is created, negotiated, and determined, proving to be at once a matter of faith and law.
Maureen E. Brady
“The Role of ‘Value’ in Moral Nuisance Cases”
By the end of the nineteenth century, it was supposedly a canonical principle of Anglo-American nuisance law that a plaintiff could not prevail solely by demonstrating that a defendant’s use caused a diminution in the plaintiff’s property value. Instead, an individual’s use had to materially injure or interfere with another’s rights to use the land, an injury that could be demonstrated in part, not in whole, by reductions in value. While that principle carried some force in the ordinary industrial nuisance case—a factory would not necessarily be deemed a nuisance if it diminished property values in the neighborhood, for instance—value came to play an outsized role in a particular subset of nuisance cases: those involving “moral nuisances.” Moral nuisances were land uses that offended the sensibilities rather than the senses of neighboring owners. Homes for the sick and disabled, cemeteries and funeral parlors, houses of prostitution and gambling—these and many more uses were challenged as nuisances in nineteenth century courts. In this essay, I will trace the role of value in moral nuisance cases. Preliminary research indicates that courts began to resort to value later in the nineteenth century as an “objective” way of measuring community sentiment about the suitability of a use for its location, especially where the use produced no physical effects on neighboring lands. This development is in some ways a broader reflection of the contemporaneous recognition in tort law of claims for the value of “mental suffering” or emotional harm caused by some act or omission, but perhaps with different valence than in other tort cases. In nuisance law, plaintiffs argued that reductions in value due to fear, loathing, and immorality were compensable, enabling propertied persons to control land uses (and their accompanying users) outside of democratic or other legal processes.
Joanna Cohen
“Judging the Value of Suffering in the Nineteenth-Century”
The nineteenth century saw both the rise and the codification of tort law in America. As part of this process, an intense legal debate arose over how to measure the value of suffering when it came to awarding damages. While legal historians have noted this shift, they have not tied it to the broader understandings of suffering that were evolving in both American religion and political culture by the mid-nineteenth century, which began to repudiate the idea that suffering had a moral purpose and was a pervasive, inevitable part of human life. This paper examines how these broader ideas about suffering infused nineteenth-century tort cases and by extension shaped the ways in which people imagined the value of suffering in society and the limits of legal restitution in the community.
Suffering came in many forms: loss of life and limb, loss of property, including slaves, and loss of reputation. In each case the jury was asked to decide what such suffering might mean and how to account for it. But even as they did so, the court would often step in to limit or adjust the award, imposing legal limitations onto the decision of the jury.
Thus, the task of awarding damages became an arena of contest that drew on both formal and vernacular interpretations of how to place a value on suffering. This paper asks how did officers of the court and the juries come up with these interpretations and what frameworks did they use to assign value to suffering? The paper focuses on three separate but influential contexts. First, the rise of Enlightened sympathy as a feeling designed to create a more civilised society, which required moral citizens to reduce suffering in others. Second, the surge of emotion that energised the Second Great Awakening, which required converts to feel an active sympathy for sufferers as part of their own redemption. Finally, the rise of actuarial science, which attempted to specify the limits of damage and injury. The paper asks how these ideas helped to turn tort law in to a ways in which Americans re-evaluated the place of suffering in the nineteenth-century, rejecting it an experience which has a moral value in American life and instead transforming it into a phenomenon that could be managed through transactional means.
Justene Hill Edwards
“The Economic Promise of Freedom in Reconstruction America”
How did African Americans’ ideas about labor, value, and capital evolve after slavery’s end in 1865? How did they understand their labor’s value during the period of Reconstruction? My paper will consider the ways in which recently emancipated people thought about value—the value of their work, property, and money—as the United States emerged from Civil War. Through exploring how the concept of value permeated African Americans’ understanding of political freedom, I will explore the relationship between economic power and labor control during this period of dramatic social change.
Laura F. Edwards
“The Value of Writing: The Written Word and Legal Authority”
This paper builds on my most recent book, which explores the salience of customary practice in the textile trade within the legal system of the nineteenth-century United States. As that book shows, longstanding practices that allowed even those without property rights to own textiles became enforceable legal principles, creating the basis for a vibrant market that was not subject to the written rules of civil and commercial law, which resolved property disputes through a rights-based framework. “The Value Writing” moves beyond the textile trade to consider the declining legal importance of unwritten law and customary practices more generally. While it is widely acknowledged that written laws replaced unwritten forms in this period, we know little about that transition. This paper is a preliminary exploration into why writing became the favored means of expressing legal authority and what that meant in the lives of ordinary people. My initial research suggests close connections among currents in religion, social reform, and law, all of which invested the written word with authority, although for different reasons. It also points to the transformative power of written law in the material circumstances of everyday life. Where unwritten forms of law reflected on-the-ground practices, which constituted law, the reverse was true for written laws, which did not rely on practice for legitimacy, but which acquired the ability to transform it. The results took particularly dramatic forms for women, whose status in law deteriorated, despite written laws that purported to address the legal disadvantages they faced.
Bronwen Everill
“Valuing “Wealth in People” in the Nineteenth Century US”
The concept of “wealth-in-people” is a measure of value that economic anthropologists use to explain some sub-Saharan African ideas of value in the nineteenth century and the role of slavery within some African societies. The idea was originally proposed as a way of understanding (partially) the economic and social role of slavery in sub-Saharan African societies, but came to be widely understood as being at the heart of societies that put value on control over people rather than control over land. The Nieboer-Domar hypothesis has suggested that similar land-labour ratios would at least partially account for the use of enslaved labour in the US context. Despite this, in general, there has been an assumption that since Europe was a value-in-land system, and Europe colonized the Americas, we can expect that the Americas will also be value-in-land societies. But I propose thinking about how “wealth-in-people” as a value measure might have functioned in the nineteenth century US, how it might have created conflicts over different forms of valuation in different regions, and how thinking with this concept might reframe our expectations of nine
Alexandra Finley
“A Murder and Some Furniture: Gender, Value, and Household Objects in the early U.S.”
This paper reimagines the act of investing in capital by considering how such investments might look different for women. Historians have illustrated that women in early America were more likely to inherit movable property than men. Some of the items men deemed least valuable in wills and estate inventories, such as linens, furniture, and kitchen utensils, generally went to female relatives.
I consider women’s acquisition of such property not as passive recipients of an inheritance but as active accumulators of a particular kind of capital. When spending their money, women of a variety of backgrounds chose to invest in furniture and other household items. Furniture served a variety of emotional and economic purposes – it could be moved from one household to the next, it could be quickly sold for cash, and, in the hands of women, it could become a source of income. Women knew that these items, especially with a bit of emotional labor on top, could transform empty rooms into welcoming domestic spaces for sale. The value of household objects was multivalent, deriving from competing definitions of value based in the marketplace, affect, and identity.
Ellen Hartigan-O’Connor
“Speculative Bodies and the Gender of Value”
Building on the idea that capitalism is, as Jonathan Levy states, “an economic system that thrives off radical uncertainty,” this paper explores the radical uncertainty of female bodies and their effect on shaping ideas about value in the nineteenth century. Histories of economic uncertainty typically root their stories in male spaces and male experiences. “Risk,” for example, meaning attempts to define and contain economic uncertainty, has been depicted as originating on board ships, in stock exchanges, and in life insurance offices. “Speculation,” the bet that the market price of a commodity will change in the future, is commonly linked to the destabilizing recklessness of gambling and investing, creating the boom-bust cycles that made fortunes and ruined lives in the nineteenth century. Yet ships, rice, and bonds were not the only repositories of value in the nineteenth century, and the systems that assigned value to them were not the only ones available. Women tallied their pregnancies and births in a form of accounting. Enslavers reckoned a lifecycle of values to attach to the people they held in bondage. This paper investigates fluid female bodies as a key source of ideas about risk, speculation, and alternative ways to evaluate uncertainty in human experience.
Jacob Lee
“Polly Spaniard’s Whiskey Establishment: Jurisdiction and the Alcohol Trade in Early Indian Territory”
This paper examines the economic, jurisdictional, and moral factors that shaped commerce in alcohol around Fort Gibson, a U.S. military post in Cherokee Nation. In the years following the Trail of Tears, Cherokee women operated a group of bars just outside the fort’s boundaries and catered, in large part, to the post’s garrison. Their story contrasts with stereotypical narratives about Native peoples and alcohol, but it also highlights the complex factors that affected buying and selling a commonplace item in 19th c. North America. These bars frustrated the military commanders at Fort Gibson who regularly complained to their superiors about them as a negative influence on post discipline and as a source of criminal activity. Yet, they had little power to stop the trade because it occurred outside their jurisdiction. At the same time, Cherokee elites were involved in a temperance campaign and agreed that these enterprises were undesirable. But, when U.S. soldiers attacked Polly Spaniard, the proprietors of one of these bars, Cherokees were quick to use it as justification to demand the withdrawal of U.S. soldiers from the nation.
Julia Lewandoski
“Compensating Lords and Confiscating Indigenous Lands: Seigneurial Valuation in 1850s British Quebec”
In the 1850s, British authorities attempted to end Quebec’s seigneurial system after extending it for nearly a century past their conquest of New France. To transform this complex feudal system of lords and tenants into individual allodial properties, they invented a laborious process called “valuation,” charging commissioners with the impossible task of assigning numbers to intricate land and human relationships. In practice, commissioners focused on compensating seigneurial proprietors for perceived losses of rental revenues and common pastures and woodlands, bestowing far more financial value on Anglo and Francophone lords than they could ever have claimed under seigneurialism. Alongside prominent French and English families, Mohawk and Wabanaki polities had mobilized the seigneurial system for more than fifty years to protect their territories within the provincial legal system, control settler encroachment, and extract revenue from tenants. Instead of compensating these Indigenous lords, commissioners deemed their unconceded territories “waste lands” and placed them under Crown control as reserves. The seigneurial valuation process provides a stark example of a mid-nineteenth century state assigning value based on racialized assumptions about land use. Despite their decades of seigneurial management and thousands of notarized land documents, Indigenous seigneurs were not deemed proprietors. They lost control of meaningful portions of their territories and were offered no corresponding financial compensation to non-Indigenous seigneurs. The inequality inherent in seigneurial valuation ensured that it would be incomplete. While non-Indigenous seigneurs were compensated, tenants had to marshal the capital necessary to purchase their concessions or continue to pay rent to seigneurial families. Most paid rent well into the twentieth century, necessitating another valuation process in the 1930s. Indigenous proprietors also continued to issue concessions and collect rents to tenants from within and outside their communities, despite Crown attempts to assume authority over their territories. British commissioners could assign value to parcels of land. But they could not abolish embedded seigneurial legal practices by affixing numbers to human relationships.
Emily Owens
“‘Justice for Breonna Taylor!’: Harm, Value, and Non-indictment in the Movement for Black Lives”
This paper takes the case of Breonna Taylor, who was killed by police during a raid of her boyfriend’s apartment in March 2020, as an entrypoint to explore American legal, ideological, and cultural ideas about the value of black life. When Breonna Taylor’s killers were not charged with a crime–and subsequently, when her mother received a multi-million dollar civil settlement from the city of Louisville–protesters and family members decried what they saw as a miscarriage of justice. Activists’ cries “Justice for Breonna Taylor!” and her mother’s persistent calls for a murder indictment stood in contrast to the remarks of the state’s attorney, who regretted Taylor’s death but emphasized the constraints of the law and his office’s investigative procedures. This simultaneity of criminal nonindictment and civil settlement, common in cases highlighted by the Movement for Black Lives, opportunes my exploration of the distinct ways that criminal law and civil law have historically related to the destruction of black life. To the extent that civil law convictions achieve than criminal law convictions, that is an index of their distinct relationship to punishment, The presumption of the different conviction standards–criminal having a higher burden of proof than civil–is that criminal punishments (loss of liberty) are worse than civil punishments (loss of property). To what extent does the simultaneity of criminal non-indictment and civil settlement (requiring the payment of damages) reify the value of Taylor’s life in pecuniary terms, and does that bear a relation to the history of black people held as property?
Dylan Penningroth
“The Shadow of the Law”
Books about Black history have long treated property and contract as a political or cultural ideology, one that clashed with Black visions of freedom rooted in communitarian or egalitarian values. But in the 1800s, African Americans tended to think of property and contract not in terms of ideology or moral values, but as legal things, claims whose value-anchoring potential could only be realized by exploiting specific legal rules. Drawing from trial- and appellate court cases in the late nineteenth-century South, and borrowing the famous Law & Society concept of the “shadow,” this paper will explore how white and Black southerners deployed rules and ideas of property and contract in the shadow of the law to channel their disputes over valuable resources. I will argue that Black civil rights, in the pre-1950s sense of the term, were forged within southern law, not in opposition to it; were intertwined with white civil rights; and are deeply rooted in Black life.
Kate Smith
“’a young Dog Puppy, remarkable for his Ugliness’: Constructing and Negotiating Value in London, 1750-1845″
Dog stealing emerged as an ever-increasing problem in late eighteenth- and early nineteenth-century London. While changes in legislation in 1770 and 1845 meant dogs slowly enjoyed protection as property, returning lost and stolen dogs continued to prove difficult. In finding and reclaiming their lost dogs Londoners were prompted to consider, articulate, and conceal the forms of value dogs held. Reading lost notices alongside legislation, legal cases, and literary sources, provides a means of uncovering how different values became intertwined in ownership and loss. In this period dogs held economic and use value as working dogs, but they also came to attract emotional and aesthetic value as pets. In cases of loss, however, people sought to protect themselves against being held to ransom by concealing the range of values at stake. This paper explores how such values were formed and decided upon in the late eighteenth and early nineteenth century. In doing so, it underscores the importance of loss and absence in constructing and negotiating value.
Felicity Turner
“To Remedy All Ills: Valuing Healthcare Knowledge in Nineteenth-Century America”
Historians have long placed law at the center of the story about the professionalization of medicine in nineteenth century America. But the existing historical narrative has relied upon a particular understanding of law, one that has privileged rulings from state appellate courts and state legislation, in preference to law in its many other forms and in the many other ways that people recognized it. This paper argues that the narrative of healthcare history in the nineteenth century looks very different when historians adopt a broader view of what constituted law. An understanding of how healthcare knowledge was valued, by whom, and in what contexts, is central to that broader narrative, demonstrating that more expansive views of both healthcare and law provide a new framework for rethinking histories in both fields. In making this argument, I draw upon recent work at the intersection of gender history, African-American history, and the history of medicine to demonstrate how the important contributions of that work are amplified by placing it in a more nuanced conversation with emerging work in the field of legal history.