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August 25, 2014


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Alfred L. Brophy

This is really interesting, Steven. I'm really intrigued by lawyers who tried to turn the legal system to an anti-slavery purpose.

But given my own research interests, I'm particularly curious about lawyers who represented enslaved people in the south -- and I guess those who represented slave-owners in the North. As to lawyers for enslaved people in the south I'm wondering several things. First, did those lawyers start out with a sense that they should help enslaved people? Second, for those who were just taking whatever case they could find (rather than doing this for ideological and humanitarian reasons), did those lawyers become anti-slavery (or were their views softened) by representation of the enslaved?

Steven Lubet

Yes, those things interest me as well. Future posts will discuss two pro-slavery lawyers -- one in the north and one in the south.

An interesting study would be Seth Thomas, who was the go-to lawyer in Boston for slave owners seeking to recover their "property." Richard Henry Dana called him a "pimp," to which Thomas replied that his actions were strictly professional, and his clients were entitled to representation.

Alfred L. Brophy

I look forward to learning more about Seth Thomas. I think the ideology of lawyers is under-studied in US legal history and I'm curious why that is. If wonder if when we begin to question whether lawyers are doing something out of ideological commitment that begins to call into question the right of their clients to representation?

Jeff Schmitt

This is a great post, and I am looking forward to the rest of the series. I wonder if the attorney knew that his client was likely to face a relatively light punishment. From my recollection, most lawyers who used the courtroom as a stage to attack slavery had cooperative clients. I wrote a piece as a law student about the litigation against Sherman Booth in Wisconsin for violating the Fugitive Slave Act, and Booth stood up in court himself and denounced the law.

I also wonder how effective these courtroom dramas were at changing public opinion. Mike Klarman, among others, has asked whether litigation was really a good use of resources for the civil rights and gay rights movements, but I am not sure if anyone has asked the same questions for antislavery lawyers. I think there might be reasons to think litigation was especially effective for abolitionists.

This also reminds me of a very interesting presentation by Dan Farbman at last year's ASLH conference. He spoke about a judge in Massachusetts (Judge Hoar)who seemed to tell his jury that civil disobedience to the Fugitive Slave Act was morally justifiable. I don't recall if he talked about how the attorneys argued the case though.

Orin Kerr


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