ISSUE: Autumn 1975
Justice Accused: Anti-Slavery and the Judicial Process. By Robert M. Cover. Yale University Press. $15.00.
The strange fascination of American slavery for students of history, economics, anthropology, biology, and law has survived the peculiar institution by more than a century and, it would appear, has even increased in the past decade. One of the more controversial recent studies on slavery was a two-volume work by Robert W. Fogel and Stanley L. Engerman, “Time on the Cross: The Economics of American Negro Slavery,” in which quantitative methodology was employed to demonstrate, among other conclusions, that slavery was economically profitable on most of the plantations of the South. And an interdisciplinary conference at the University of South Carolina in 1974, with this study as the focus for discussion, played to a standing-room-only audience. Participants included Professors Robert Fogel, Kenneth M. Stamp, Robert Evans, Jr., and Arthur Zilversmit, and the final session, entitled “The Further Study of Slavery: Needs and Opportunities,” was presided over by Professor C. Vann Woodward. Thus a new study directed toward certain aspects of judicial performance during the latter period of American Negro slavery should not be relegated to the area of merely antiquarian interest.
Professor Robert Cover, of the Yale Law School, has produced in “Justice Accused” an interesting combination of legal history and jurisprudential analysis. As legal history the book is excellent. The analysis of the judicial role does not come off quite so well, but it is nonetheless intriguing because the author has selected such diverse instruments as literary analogy, game-models, linguistics, and dissonance theory to examine the dilemma of the antislavery judge who was confronted with “the choice between the demands of role and the voice of conscience.”
The period covered is roughly 1780—1860, although the introductory discussion of natural law is traced back to Aristotle and the common law influence back to Blackstone and Coke. The specific judicial actors chosen for analysis are four judges—Joseph Story, John McLean, Lemuel Shaw, and Joseph Swan. Each of these judges was an avowed opponent of slavery, but each was faced sooner or later with cases in which “the law” seemed to require a pro-slavery decision. The analysis is an attempt to point up the alternative judicial routes which might have been followed and the professional or canonical boundaries which militated against the choice of such alternatives. Other judges, with other cases, are discussed, but they represent the supporting cast whose purpose is to sharpen the appreciation of the drama surrounding the decisions of the four principals.
The treatment is starkly legalistic, with relatively little reference to sociological, political or economic developments, except as these might have impinged on the judicial role. Even the discussion of the abolitionists is directed toward their advocacy positions in actual cases. The minimization of non judicial loci—legislative, executive, church, or other private arenas-—for remedial or ameliorative action on the slavery issue tends to develop in the reader an almost unconscious attitude that the sole battleground on which the legal and moral issues must be resolved is the courtroom. And the judges must make their decisions in awesome isolation from other policy-making or policy-affecting institutions. This heightens the theatrical effect, of course, when one is brought to the cases involving the Fugitive Slave Act, with the irreconcilable conflict (for the antislavery judge) between the moral position and the demands of the judicial role. This is not to suggest that the author is unappreciative of the forces operating outside the courtroom. They are played down to stress the judges’ own perceptions of their responsibilities and the impact of their decisions. The defect in this approach is that it suggests that judges shoulder much greater responsibility for the consequences of applying statutes and constitutional provisions than frequently should be the case. If the statute lays out a clear command, and if the judge follows that policy in specific cases, then it is obviously the legislature which deserves the blame if the public disapproves. This certainly should be the approach to the Fugitive Slave Act cases, although it may do little to alleviate the frustrations of a judge who feels guilty of complicity in a sordid business when he orders a fugitive returned to slavery. In short, judges elevate their own role unnecessarily when they try to assume society’s guilt when applying laws they consider immoral. Judicial review may sometimes be characterized as the operationalization of Rousseau’s concept of the “general will,” but democratic theory does not normally accord such prescience to the judiciary.
Stanley M. Elkins’ book “Slavery” is an excellent companion piece to “Justice Accused.” Elkins gives a broad treatment of the whole American environment in which Negro slavery flourished. In this setting, with hardly any institutional challenges to the treatment of the slave as a mere piece of property, one might wonder that judges were able to provide as many ameliorative remedies as they did. At most the judiciary only needed to share guilt with many others, not assume the major burden. Even Thomas Jefferson, in 1819, pled inability to execute the will of Thaddeus Kosciuszko which directed Jefferson, as executor, to employ Kosciusko’s entire estate to purchase Negro slaves and liberate them.
Professor Cover discusses a number of ways in which various judges utilized technical procedural rules to try to influence decisions favorably to the slave. These included the use of habeas corpus, often as a delaying tactic to permit time for purchase of freedom, the attempt to force jury trials on issues of fact, the expansion of appellate review, and others. And where the substantive law was ambiguous, the judge had some flexibility in statutory construction in favorem libertatis. A careful perusal of Helen T. Catterall’s monumental collection of slavery cases gives some interesting illustrations of technical nit-picking to achieve liberation. In one such case, Crawford v. Slye, in 1834, a District of Columbia court held that the petitioner was entitled to freedom, since Maryland law, under which she had been imported, required that all slaves so imported be listed, both by name and sex, and petitioner was merely listed as “Jo” with no designation of sex. Thus there were possibilities for the anti-slavery judge to work within judicial boundaries and still satisfy their consciences. But sooner or later such judges were almost sure to hit cases involving the Fugitive Slave Acts and the commands of Article IV, Section 2, of the Constitution, which offered no escape from a square holding that the fugitive slave must be delivered up to the master. Cover draws the following “very tentative” conclusion:
Whenever judges confronted the moral-formal dilemma, they almost uniformly applied the legal rules. Moreover, they seemed very reluctant to resort to, and thus legitimate, substantial doctrinal innovations that might have made certain cases less a choice between law and morality and more a choice between alternative legal formulations.
In examining the large number of cases which the author so carefully analyzes, it seemed to me that in those cases in which the legal rules offered any play at the joints, a number of judges, even in the South, opted for a decision in favor of liberation, or at least amelioration of condition, of the slave. And these often involved doctrinal innovations. A good example is Patty v. Colin, a private manumission case in Virginia in 1807. The decree by Judge St. George Tucker, and Judge Spencer Roane’s concurring opinion, provided that if possible, where there was inadequate nonhuman property to satisfy creditors, manumitted slaves should be hired out for a term to satisfy the estate’s debts rather than be sold or seized. But not every case presents the opportunity for innovative handling of the legal rule, and the “good” judge—one who is broadly trained, intelligent, moral, and sensitive to the direction of legal development—still recognizes that there is a shared responsibility for marking out the path of the law and that there are boundaries to the judicial role in breaking new ground. It seems to me that Professor Cover illustrated clearly that his four test judges— Story, McLean, Shaw, and Swan—were “good” judges in exactly this sense. “Justice Accused” is a thoughtful, provocative analysis of the judicial role in an area of uncommon difficulty and public sensitivity, and it deserves a careful reading by students of the judicial process.
