Northern Judges and the Masks of the Law

Slavery posed for northern judges issues about their role in the legal system every bit as perplexing as those confronted by southern judges. We know that in the distribution of

-140-

economic justice, the antebellum appellate judiciary was often instrumental, giving discretion to human will in framing the legal bounds of economic decision making. But many of these same northern judges, though openly hostile to slavery, pulled on the masks of the law and resorted to a highly formal approach to issues of personal status, morality, and race.

By the 1850s, opponents of slavery sought to awaken northern moral sentiment through civil disobedience and dramatic rescues of escaped slaves. Judges were confronted with popular efforts to free people who would, under the letter of the law, be returned to slavery. The judiciary sustained the rule of law over emotion and mob action, but judges did so by placing their legal masks on in ways that ignored the humanity of individual slaves. Typical was Lemuel Shaw's action in the case of Thomas Sims.

Sims was a fugitive slave captured in Massachusetts and hauled before a federal commissioner under the 1850 act. Sims's antislavery lawyers then sought a writ of habeas corpus from the Supreme Judicial Court of Massachusetts, arguing that the Fugitive Slave Act was unconstitutional and that by virtue of being in free territory Sims had become a free person. Tensions ran so high that the courthouse was encircled with chains and ropes to prevent disruption of the proceedings.

Shaw's opinion confirmed the worst fears of antislavery advocates. Shaw not only denied the writ but upheld the Fugitive Slave Act of 1850 in what was "the preeminent judicial determination on that issue from any court, federal or state." ³⁵ Shaw held the fugitive slave clause had been necessary for the ratification of the Constitution and that subsequent generations could not disturb it through judicial interpretation. Congress had power to enact a fugitive slave law under that clause and the necessary and proper clause of Article I. In short, as offensive as slavery might have been to Shaw, he decided, as a matter of law, to return Sims to slavery.

Similar scenes were played out in other courtrooms in the North, as judges with antislavery sentiments refused to use their offices to strike at the immorality of slavery. Henry David Thoreau, for example, extolled resistance to this law and chided judges for upholding it even when they knew full well that the ends were evil. "The law will never make men free," Thoreau wrote in his essay, "Slavery in Massachusetts," "[I]t is men who have got to make the law free." He stigmatized Shaw and other judges as "organ grinders" who were incapable of distinguishing the mechanical act of churning out opinions based on the law with what he believed was a greater duty to the higher law of moral conscience. ³⁶

Northern judges repeatedly pulled on their judicial masks, placing law over sentiment and precedent over innovation. The judicial role exercised a powerful influence. "The law is our only guide," wrote Justice John McLean, one of the two dissenters in the famous Dred Scott case. "If convictions of what is right or wrong," he insisted, "are to be substituted as a rule of action in disregard of the law, we shall soon be without law and without protection." ³⁷

Date: 2015-01-29; view: 833