As I've been working on the trials in the wake of the Nat Turner rebellion, I've been thinking in particular about the lawyers who represented the enslaved people. The trials themselves were short and quite to the point -- in some instances white people who witnessed the rebels testified. But most of the testimony came from slaves, either slaves who witnessed the rebels or had heard them talking before or after the rebellion. Given the extensive testimony about the torture of slaves to get testimony, I'm really skeptical of the quality of the testimony. And whether they were tortured or not, the pressure to give testimony that implicated slaves must have been enormous in many cases.
One fifteen year old slave who seemed to have joined the rebels under coercion, for instance, testified in a number of trials. He was one of the last people put on trial, apparently after his testimony was no longer needed to convict others. And the court observed as part of his trial that he had provided testimony in numerous other trials after being informed that the testimony might be used against him. He was convicted, then sentenced to transportation out of the state, instead of execution.
But what interests me deeply about the trials are the lawyers who represent the enslaved people. I recall Eben Moglen suggesting that it would be really helpful to look at lawyers for enslaved people when he lectured on Robert Cover's Justice Accused. And over the years I've spent some time looking at various lawyers -- one is the fictional lawyer in Harriet Beecher Stowe's Dred: A Tale of the Great Dismal Swamp, who resigned from the practice of law when he realized he could not reform the system. That's one solution -- but not maybe the best one. Another is B.F. Moore, who represented the slave Will in a homicide prosecution in the 1830s. Will had killed an overseer who was attacking him -- and who likely would have killed Will. I think that Moore was interested in subjecting everyone to the rule of law. In particular the opinion had the effect of constraining the passions of slaveowners. In that task Moore was greatly aided by the fact that William Gaston was on the North Carolina Supreme Court.
Let me turn, though, to two lawyers who represented enslaved people in the wake of Nat Turner. One was James Strange French, a young lawyer who later wrote a novel about life on the frontier -- and in particular about war against the Natives. We know little about French's ideas, but his novel (published in 1836, so five years after the trials) to be deeply concerned with the violence on the frontier. Most interesting to me is William Henry Brodnax, who represented several enslaved people in neighboring Sussex County. Brodnax appears in three important phases of the Turner saga -- first as commander of the militia that restored order in the wake of the rebellion; second, as a lawyer for the slaves in Sussex -- this no one, so far as I know has commented on before -- and third as a member of the Virginia General Assembly who urged a plan of colonization of free people in 1832. Brodnax was critical of slavery, but protective of property rights in his speech in 1832. And I wonder about the ways that the scenes of violence he saw (in particular the violence of white people in response to the rebellion) and his role in representing slaves charged with conspiring some months before the rebellion on rather flimsy evidence, may have affected (or at least reinforced) his attitudes to criticize slavery.
Thinking about the role of lawyers as advocates for slaves (and of prosecutors in framing how the narrative of the Nat Turner rebellion unfolded) brings me to an article I've been meaning to comment on, Geoffrey Hazard and Dana Remus' "Advocacy Revalued," from the U.Penn. Law Review in 2001. It is about the role we expect of lawyers in the adversarial system. While they are not immediately concerned with the nineteenth century (where there is a debate about the extent of the adversarial system), I think their discussion of the role of advocacy -- and their defense of it -- is a helpful framework for thinking about the duties of both proslavery and anti-slavery lawyers in the legal system. And as long as I'm talking about the pre-Civil War era, it may be useful to recall that lawyers frequently pointed to a key virtue of the legal system as bringing order and stability. Cribbing now from Hazard and Remus' abstract:
A central and ongoing debate among legal ethics scholars addresses the moral positioning of adversarial advocacy. Most participants in this debate focus on the structure of our legal system and the constituent role of the lawyer-advocate. Many are highly critical, arguing that the core structure of adversarial advocacy is the root cause of many instances of lawyer misconduct. In this Article, we argue that these scholars’ focuses are misguided. Through reflection on Aristotle’s treatise, Rhetoric, we defend advocacy in our legal system’s litigation process as ethically positive and as pivotal to fair and effective dispute resolution. We recognize that advocacy can, and sometimes does, involve improper and unethical use of adversarial techniques, but we demonstrate that these are problems of practice and not of structure and should be addressed as such.
Putting Hazard and Remus' article together with the Nat Turner trials makes me think of a couple of questions of the role of both the prosecutor and the defense in the trials: how much was the prosecution's role about re-establishing order over both the enslaved community and the vigilante white community in the wake of the rebellion? How much did defense counsel have the opportunity to advance a vigorous challenge to the prosecution? There were, to be sure, a few acquittals; but some of the convictions were based on rather flimsy evidence, such as a young slave who testified that she had heard some months before that several of the defendants make vague threats against white people in general. At any rate, I hope to talk some more soon about the role of the defense lawyer in slavery -- and to speculate some about who might have selected out of
I have some more about this on my paper on "The Nat Turner Trials," which is up on ssrn.
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