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Justice Accused

Justice Accused: Antislavery and the Judicial Process

Robert M. Cover
Copyright Date: 1975
Published by: Yale University Press
Pages: 322
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  • Book Info
    Justice Accused
    Book Description:

    What should a judge do when he must hand down a ruling based on a law that he considers unjust or oppressive? This question is examined through a series of problems concerning unjust law that arose with respect to slavery in nineteenth-century America."Cover's book is splendid in many ways. His legal history and legal philosophy are both first class. . . . This is, for a change, an interdisciplinary work that is a credit to both disciplines."-Ronald Dworkin,Times Literary Supplement"Scholars should be grateful to Cover for his often brilliant illumination of tensions created in judges by changing eighteenth- and nineteenth-century jurisprudential attitudes and legal standards. . . An exciting adventure in interdisciplinary history."-Harold M. Hyman,American Historical Review"A most articulate, sophisticated, and learned defense of legal formalism. . . Deserves and needs to be widely read."-Don Roper,Journal of American History"An excellent illustration of the way in which a burning moral issue relates to the American judicial process. The book thus has both historical value and a very immediate importance."-Edwards A. Stettner,Annals of the American Academy of Political and Social Science"A really fine book, an important contribution to law and to history."-Louis H. Pollak

    eISBN: 978-0-300-16195-3
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-viii)
  2. Table of Contents
    (pp. ix-x)
    (pp. xi-xii)
  4. PRELUDE: Of Creon and Captain Vere
    (pp. 1-7)

    Antigone’s star has shown brightly through the millennia. The archetype for civil disobedience has claimed a constellation of first-magnitude emulators. The disobedient—whether Antigone, Luther, Gandhi, King, or Bonhoeffer—exerts a powerful force upon us. The singular act, the risk, the dramatic appeal to a juster justice, all contribute to the high drama of the moment and the power of the actor’s role. No wonder, then, that such men and women are celebrated in literature and history. No wonder that a great psychiatrist like Erikson, upon embarking on a venture in history and biography, chose Luther and Gandhi as his...

  5. CHAPTER ONE: The Intellectual Tradition: Slavery, Natural Law, and Judicial Positivism in the Eighteenth Century
    (pp. 8-30)

    When, in 1781, Levi Lincoln argued for the freedom of the Negro Quock Walker, he asked, “Is it not a law of nature that all men are equal and free?”¹ In a later branch of the same case, in 1783, Chief Justice Cushing’s charge to a jury characterized slavery as unfavorable to “the natural rights of mankind.”² Seventy-five years after the Quock Walker case, T. R. R. Cobb’s treatise,The Law of Negro Slavery, was published. Some three hundred pages, heavily annotated, packed with authorities, are devoted to refuting the proposition that slavery, or Negro slavery, is contrary to the...


    • CHAPTER TWO: Natural Right in Legislation
      (pp. 33-41)

      Too often scholars and critics have studied natural law in legal and political thought only in its most spectacular forms. The contours of natural law as part of the rhetoric of revolution from 1765 to 1780 has been analyzed and dissected time and again.¹ Similarly, the relationship of judicial review to “higher law” theories has been studied from a number of perspectives. Scholars like Gough and Corwin have traced the roots of judicial review to earlier notions of fundamental law, which are in turn linked to the ongoing natural law tradition.² Analysts of certain episodes of Supreme Court activism have...

    • CHAPTER THREE: Judicial Construction of a Natural Law Text: The “Free and Equal” Clauses
      (pp. 42-61)

      If the legislative musings of a man both firmly antislavery and at home with the natural rights idiom led to a scheme recognizing conflicting interests and policies to the tune of projecting a hundred year transition period of enslavement, then we ought not to wonder at judicial attention to the same multiplicity of interests and policies in treatment of constitutions and statutes. For these judges were often participants or close observers of the process of creating the instruments they construed. Moreover, they subscribed to a jurisprudence in which the judicial role was, in Hamilton’s words, one of “judgment” not “will,”¹...

    • CHAPTER FOUR: Statutory Interpretation: “In Favorem Libertatis?”
      (pp. 62-82)

      The task of construing broad constitutional language is a perennial invitation to judicial lawmaking. Any vague phrase, over time, comes to have little significance except through its history of applications. If the American judiciary asserted the limits of its role and referred to human purposes with regard to such inviting, broad language as “free and equal,” it is hardly surprising to find a comparable positivist jurisprudence at work in the interpretation of statutes. Yet, it would not be accurate to assert that the natural law tradition with regard to slavery had no place in this process. It could have a...

    • CHAPTER FIVE: Conflict of Laws
      (pp. 83-99)

      We have seen the limited bases for judicial application of principles favoring liberty in construction of statutes and constitutions. Even where explicit natural rights language was used, it was construed in terms of the purposes and intention of the human agencies who framed the instrument. Where no explicit natural rights language was to be found, the courts might still indulge in interstitial preference for liberty but not in the face of clear manifestations of a contrary legislative policy. When, as was not uncommon, a difference of opinion occurred as to the appropriateness of application of principled preference for liberty, judges...

    • CHAPTER SIX: Perspectives from International Law
      (pp. 100-116)

      International law, even more than “conflicts,” has a long history of identification with the law of nature. Many of the prominent discussions of slavery’s place within the law of nature, noted in Chapter 1, are contained within books that are predominantly works of international law. Yet the law of nations, with its affinity for the law of nature, operates by virtue of its being incorporated within the law of a sovereign state. It is not in force by its own authority (ex proprio vigore) but by authority of some sovereign entity. As early as 1784, we have a suggestion of...


    • CHAPTER SEVEN: Some Paradigms of Judicial Rhetoric
      (pp. 119-130)

      The rhetorical function of a judicial opinion ordinarily relates to the law and not to the judge. The opinion is designed to persuade the parties and the world that the decision arrived at is just, that the evidence has been weighed, that the rules of law have been justly applied, that the rules of law themselves have been fairly determined. However, occasionally one finds the judicial opinion used to suggest the immorality of the law. Very often this suggestion is coupled with a statement that the judge is, nevertheless, bound to apply the law, immoral as it may be. In...

    • CHAPTER EIGHT: Formal Assumptions of the Judiciary
      (pp. 131-148)

      So far I have spoken of the formal limits on the judicial role abstractly. It is time to specify. The antebellum judge’s concept of his role was largely determined by three phenomena external to the slavery question: “constitutionalism” and judicial review, codification’s challenge to the common law, and the selection and tenure of judges controversy. These three battles were different dimensions of a single, more general problem: the tension between independence and accountability of the undemocratic branch of representative government. The problem of selection and tenure of judges put the issue directly. Should the judge be accountable to the people...

    • CHAPTER NINE: Formal Assumptions of the Antislavery Forces
      (pp. 149-158)

      After 1840 a significant part of all antislavery writing was devoted to analysis of the legal system of the United States and to its bearing on problems of slavery.* There were lawyers of note among the abolitionists, and the works of William Jay, James Birney, Charles Sumner, Salmon Chase, Robert Rantoul, or Richard Dana bear witness to the professional skill with which arguments were shaped.¹ However, the story of abolitionist legal theory by no means stops in the courtroom or with the speculations of established lawyers. Richard Hildreth’s bookDespotism in America, Harriet Beecher Stowe’sKey to Uncle Tom’s Cabin,...

    • CHAPTER TEN: Positivism Established: The Fugitive Slave Law to 1850
      (pp. 159-174)

      The attorney’s role within a system of law assumed to be immoral is much easier to justify than that of the judge. The practical tasks of freeing alleged slaves and defending those accused of harboring fugitives were not often thought of as inconsistent with antislavery. While Henry Thoreau thought that the very argument of whether one man was the property of another conceded too much to slavery and was demeaning to a free man or free state, there is no evidence that either he or the Garrisonian no-government theorists placed serious moral blame on lawyers who consistently defended the slave...

    • CHAPTER ELEVEN: Positivism and Crisis: The Fugitive Slave Law, 1850–1859
      (pp. 175-191)

      The Garrisonians’ emphasis on a positivist approach to the Constitution and their resulting conclusion that the compact was a bargain with hell produced a focus on the issue of participation in the system, rather than on novel theories of substantive law. Conversely, where the Chase-Birney theories held sway, the objective of incorporating natural law into positive law by some bootstrap or another continued unabated. The Fugitive Slave Act of 1850, with the concomitant public uproars of this last antebellum decade, produced new opportunities for both approaches to slave law and for the sober lawyers. In Massachusetts the logic of the...

      (pp. 192-194)

      The narrative of fugitive slave cases in this chapter makes clear that the interplay of antislavery demand and judicial “cannot” was seldom on the simple level of “what is the law?” The antislavery bar sought doctrinal growth, minimally. The utopians sought constitutional upheaval. Both practitioners and utopians seemed to tread the line of demanding conscious disregard of role limits. The judicial responses to these demands, insofar as they went beyond refusal, appealed to one or more of four justifications for role fidelity.

      The most extreme justification asserted that ordered society itself depended on judicial adherence to positive law, constitutional limits....


      (pp. 197-200)

      The preceding chapters have described a variety of contexts in which antislavery judges decided cases amidst claims that the morality of slavery be considered as a major factor in the decision. Usually these claims were put forward directly by the parties or their representatives. Few of the men who made such claims and none of the judges who heard them, however, thought that consideration of the morality of slavery alone would suffice to reach a decision. Most of the actors assumed that in many cases an antislavery result could be achieved only with some stretching or reconstruction of formal principles....

    • CHAPTER TWELVE: Context for Conscience
      (pp. 201-225)

      The judicial conscience is an artful dodger and rightfully so. Before it will concede that a case is one that presents a moral dilemma, it will hide in the nooks and crannies of the professional ethics, run to the caves of role limits, seek the shelter of separation of powers. And, indeed, it is right and fitting that such insulation exists. As Professor Herbert Wechsler has written:

      . . . one of the ways in which a rich society avoids what might otherwise prove to be insoluble dilemmas of choice is to recognize a separation of functions, a distribution of...

    • CHAPTER THIRTEEN: Judicial Responses
      (pp. 226-256)

      The antislavery judge experienced a pervasive, but more or less latent, conflict between two potentially inconsistent prescriptive systems: law and (antislavery) morality. Neither system had a wholly satisfactory accommodation mechanism for the potentially inconsistent principles or rules of the other. That was true in the age of Aquinas, it is true today, and it certainly was true of the antebellum world of the antislavery judge. Where the doctrinal and the dialectical patterns permitted, the judge could salvage a degree of consistency and keep the potential direct clash of principles from arising in many cases. Even where a conflict arose, he...

      (pp. 257-259)

      I do not wish to engage in psychological reductionism with respect to the four judges studied in the preceding section. Their dilemma was a real enough one, not in any sense created by the pathology of the actors. My point is rather that the responses of these men and of others like them were characteristic and predictable patterns of judicial performance in such most difficult of circumstances. The circumstances were difficult in part because there are no formal substitutes for hard priority value choices in situations like those confronting Story, McLean, Shaw, and Swan. They were also difficult because these...

    (pp. 260-267)
  10. NOTES
    (pp. 268-312)
  11. INDEX
    (pp. 313-322)