Human chattel slavery existed first without prohibition by and later with affirmative sanction of law in the colonies that would become and then in this country, for 246 years and 4 months, from August 20, 1619 (first African slaves at Point Comfort, VA) to December 6, 1865 (ratification of 13th Amendment). From the moment those first “20 and odd” Africans were deposited on Virginia soil, their “owners’” “rights” in and to them were defined and protected first by colonial, then state courts, by analogy to English common law of property, even though English law itself did not recognize slavery.
Lawyers created and enforced those laws for 2 ½ centuries. Scholarship covering the essential and extensive involvement of our profession in this nation’s greatest shame, however, is sparse, perhaps because of complicity. There is extensive literature on slavery and the law, but little, and not one book, which focuses on the multitude of American lawyers who created, perpetrated and, later, the few who opposed and finally ended, the “peculiar institution.”
Of course, lawyers were far from alone in centuries of complicity. Presidents, Senators, Congressmen, Justices, legislators, state executives, bankers, manufacturers, railroads, shipping companies, wholesalers, insurance companies – almost every business and profession was to some degree involved in, benefited by, or at least consumed products created by slave labor. Cotton, rice, sugar, and other staples were exported from slave states to free states and overseas, not to mention that the economies of the free states depended upon sales of their manufactured goods to the slave states. 393,975 Americans (out of 31,182,582 – 1.26%) owned other humans in 1860. Most of those owners had lawyers who assisted them in maintaining and expanding this vile enterprise.
Lawyers represented the companies that insured slaves, plantations, and the products of unpaid labor, the banks that financed the slave economy, the mills that depended upon slave-produced cotton, and the shipping and trading companies which shipped the slaves themselves. Recent scholarship supports the theory that slavery actually laid the foundation for modern American capitalism, such as the creation of new financial instruments such as bonds using slaves as collateral. The un-secret but seldom highlighted feature of the antebellum U.S. economy is that it was completely dependent upon the active and extensive participation of, and monetary benefit to, a wide variety of professions, companies and individuals in the free states – including our profession.
Legal academics published treatises on the “law of slavery,” an oxymoron to be sure – Jacob D. Sheeler, A Practical Treatise on the Law of Slavery (1837), John C. Hurd, Law of Freedom and Bondage in the United States (1858), and T.R.R. Cobb, Law of Negro Slavery in the United States (1858). A cursory review of just the index of any of these is enough to make one physically ill – “Of Title To Slaves,” “Of Mortgage of Slaves,” etc. Reading the cases is even worse. Frederick Douglass often read slave statutes to his stunned lecture audiences as stark evidence of the astounding inhumanity and complicity of judges, legislators, and lawyers.
There were, of course, many notable lawyer exceptions. William Wilberforce, one of the handful of abolitionists who brought slavery to an end in the British Empire, was a lawyer. In 1781, Theodore Sedgwick, a slaveholding lawyer, filed a freedom suit for his client, a slave known only as “Murbet,” resulting in, perhaps to his surprise, the judicial abolition of slavery in Massachusetts. In 1777, Vermont lawyers made it the first state to legally abolish slavery, stating unequivocally in its Constitution that slavery is a violation of “natural, inherent and unalienable rights.” Many abolitionist organizations employed volunteer lawyers who assisted slaves in freedom suits and actions against abusive masters.
Yet for every such noble member of the Bar, there was an equal and opposite other in the South and in the North, willing to represent slave owners, overseers, and those with commercial interests in slavery – to enforce the Fugitive Slave Laws and to prosecute those who opposed the Slave Power. For money, power, prestige – greed.
The American legal system initially treated slaves as it did the most analogous personal property – livestock. Just as the issue of a cow was legally the property of the cow’s owner, so was the issue of a slave woman also a slave, belonging to her owner. The property analogy broke down, however, when the law had to consider non-bovine elements – some black people were not slaves, and all were thinking property. How the legal profession dealt with these anomalies is as creative as it was reprehensible. Lawyers and judges made it up as they went along in order to ensure the sanctity and stability of this bizarre world.
Slaves were treated better than livestock in only a few respects – a master, in extreme cases, could be held criminally liable for cruelty to or murder of a slave. Unlike livestock, slaves could testify in court, though not against the interests of any white person, and they were subject to all criminal laws which covered white people, plus many that applied only to them. Yet like livestock, slaves had no civil rights or privileges, and were not citizens. Judges were all too often willing to use their legal legerdemain to achieve outcomes and create new rules that would maintain or even strengthen the chains of human bondage.
Needless to say, sadly, many in our profession continued, even long after the legal demise of slavery and for the following 153 years, to create, support, and expand laws designed to maintain what Frederick Douglass called the “invisible chains of slavery” – Black Codes, Jim Crow, “separate but equal,” voter suppression, etc.
You may say that slavery was sui generis and there is nothing today with which our profession is as complicit. Are you so sure?
Seth Thomas was the antebellum go-to lawyer in Boston for slave owners seeking to recover their runaway slaves – their “property” whom fellow Massachusetts lawyer Richard Henry Dana called a “pimp.” Thomas replied that he was “just representing a client in professional fashion and they were entitled to representation under law.” True, but was that a sufficient defense to Dana’s charge?
One has to wonder in what injustice we today may, in a century or two, be viewed as complicit? Climate disruption, economic inequality, authoritarianism? Will future generations look back on us, as we look back on those who assisted slavery, and conclude that we were complicit, when we should have taken a stronger and earlier stand? While none of us will be here in 2119, we should be concerned about the legacy of our profession.
Kelly Tillery is a Partner in the Intellectual Property Group of the law firm of Pepper Hamilton, LLP in the Philadelphia office. He is the author of numerous articles on a variety of historical and legal topics. His first book, Sidebar – Reflections of a Philadelphia Lawyer (CreateSpace, 2018) will soon be followed by Sidebar, Too – More Reflections of a Philadelphia Lawyer (KDP, 2019).