Morality vs. Legality in Historical Fiction

Why historical fiction?

First, I’m not a great reader of history textbooks. But I love a good story, especially those based on actual history. And most especially a good story that addresses issues crucial to any age.

The question of "right" and "wrong" is as old as the human race. Great thinkers have struggled with it throughout history. At the core of my novel The Abolitionist's Daughter, based on an actual incident, is the age-old struggle between legality and morality.

Civilizations operate by legalities: control by laws, violation of which is punishment, sometimes death. Cultures function by morals: standards agreed acceptable for the good of both individual and society. Conveyance of these standards may be subtle, or blatant—and the consequences for violation as dire as for breaking the law.

“If something is moral, it should be legal. If it is legal, it is therefore moral. But that equivalency is a fragile, sometimes delusional balance, based on power, fear, and often greed.”

In our general assumptions we tend to blend the two. If something is moral, it should be legal. If it is legal, it is therefore moral. But that equivalency is a fragile, sometimes delusional balance, based on power, fear, and often greed. In my novel, Judge William Matthews defies the legality of slavery on the grounds of its immorality. He and his daughter, Emily, find themselves at odds with those around them who support the moral ground of slavery on the basis of Biblical teachings. Not only does this put them in conflict with the law, but strangely enough, with the church.

To compound the difficulty of their stance, the Matthews ironically are owners of a large number of slaves, most inherited. Judge Matthews had been appointed prior to a new constitution in Mississippi that established judicial elections. So the only threat to his judgeship came in his effort to free his slaves. To do so would be a crime since manumission had become illegal in the bargaining over free state/slave state prior to the Civil War. The judge was forced to capitulate on efforts to grant freedom.

But other legalities he ignored, operating undercover to achieve whatever moral progress in his power. It was against the law to educate slaves, yet he conspired with his children’s tutor to set up a secret school to prepare them for the freedom he believed inevitable. It was against the law for slaves to marry. They often used the tradition of "jumping the broom," an ancient way to acknowledge a marriage of non-legal validity. Judge Matthews, however, had the authority to perform marriages, which he did in spite of illegality, registering them and any children in his household lists. Because granting freedom was the great obstacle he could not overcome, Judge Matthews purchased slaves when possible to rescue them from mistreatment and to prevent families from being separated. One such "rescue," at Emily’s urging, triggers the tragic events of the narrative.

“Historical fiction is best when its primary themes are current and timely. Quandaries of the moral and legal are as immediate as our own lives.”

Historical fiction is best when its primary themes are current and timely. Quandaries of the moral and legal are as immediate as our own lives. As adult readers, many of us came up through the years of Civil Rights conflict. Daily headlines indicate that much of the progress we celebrated in recent years is only a veneer over erupting racial issues.

The Civil War era of my novel initiated immense change for women. The absence of men, the staggering deaths, and debilitating injuries, left women to manage on their own. As responsibility fell to them, women began to emerge in leadership. Yet they were denied the vote. The Suffragette movement gained women’s vote yet the legal and moral struggle continues in both political and commercial realms.

“At the border we deal with the fine lines of legality and morality.”

At the border we deal with the fine lines of legality and morality. Undocumented migrants seeking to enter the United States die in shocking numbers trying to negotiate the deadly Sonoran Desert. Religious leaders from Catholic, Presbyterian, and Jewish communities in Tucson and Phoenix began a volunteer advocacy group, No More Deaths, to prevent deaths by leaving water and food. Medical volunteers, Samaritans, followed suit with emergency care, water, medicines, and first aid. These groups cooperate with Border Patrol wherever encountered, working to operate both legally and morally. Yet some of these volunteers have been charged with crime for leaving supplies and many of those supplies have been destroyed. There are videos of officers kicking over jugs of water that would be life-saving.

I have worked at the border myself in shelters run by religious and non-religious volunteers for migrants awaiting legal entry. They are operating both legally and morally. And the work is difficult. I recently met a woman who was left in the desert. Struggling to find her way, she came upon the body of someone who had also been lost and died there. It was later determined the person died of thirst after a broken ankle.

I leave you with some questions to ponder:

1. Where in life have you encountered the struggle between legality and morality?

2. Where in your private personal life have you encountered such conflict?

3. Do you believe there are ways to address the conflict that can be both moral and legal?4. Do you see legal precedents that put obstacles in the way of being moral?

5. How do you make choices in such a conflict?

Diane C. McPhail is an artist, writer, minister and author of The Abolitionist's Daughter. She is aIn addition to holding an M.F.A., an M.A., and D.Min., she has studied at the University of Iowa distance learning and the Yale Writers’ Workshop, among others. Diane is a member of North Carolina Writers' Network and the Historical Novel Society. She lives in Highlands, North Carolina, with her husband, and her dog, Pepper.

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