B.

The Tension Between Law and Justice One can hardly imagine a more unjust institution in the history of the human race than the institution of slavery. A human being was treated as a chattel. As the property of the slaveowner. Slaves has a characteristic that the slaveowners found most inconvenient- when they could, they ran away. Thus when the United States Constitution was being drafted, the framers had to do something about the runaway slave problem. The southern slave states said the would not join the new nation unless slaves the ran away to the Northern free statas ware returned to the slaveowners. Some frames regarned slavery as immoral and were hesitant to enter into a compact with the Devil in order to appease the slaveowning interests in theSouthern states. What was to be called the Great Compromise was the objek of intense debate and drafting. Adopted as article 4, Section 2, Clause 3 3 of the Constitution, the Fugitive Slave Clause read as follow: No Person held t service or labour in one states, under the laws thereof,escaping into another,shall, in consequenceof any law or regulation therein, be discharged from such service or labour , but shall be delivered up on claim of the party to whom such service of labor may de due. Note that the clause did not use the word slave , and did not refer to race; obviously the final language was adopted to assuage the sensibilities of person morally opposed to slavery. At the same time, the clause in substance appeared to do what the slaveholding states wanted (a) to revent northern states ftom adopting legislatioan that would abolish slavery and free from bondage any as caped slaves, and (b) to set up an imperative that the slaveowners may retrieve the runaway slaves. It is not my purpose here to recount the history of constitusional interpretation of the fugitive slave clause, the states anacted by congress to enforce it, or the various ways that Northern abolitionist states attempted to delay or obstract slaveowners from reclaiming escaped slaves. This history has been recounted in many book, notably Robert M. Covers justice Accused: Thomas Sims Case decided in 1851 in Messachusett. By that year, the abolitionist sentiment in boston and other cities was very strong. Thomas sims was fugitive slave, caught in boston and temporarily imprisoned by a federal marshal while awri of habeas corpus was argued on his behalf. Would Lemuel Shaw, chief judge of the supreme judicial court of Massachusetts, issue or deny the writ, what about the fugitive Slave clause ( which by 1851 had been held to be constitutional by united states Supreme Court)? Was this to be a claseh between the strongest possible dictates of justice on the one hand , and law on the other.?

1. Leonard W. Levy: the Sims Affair It was notorious that no fugitife slave had ever been returned from boston. Wbster whigs were dismayed that the whole states of Messachusetts was known as the cradle of mad Abolitionsm. It had become a mater of pride, not alone in the south, that a fugitive should be seized in boston and taken back to slavery. Than, on Thursday evening, April 3, 1851, the city government of boston was presented with an opportunity to make good on its promises of loyally enforcing the fugitive slave Act: Thomas sims was taken into costudy as a fugitive slave belonging to Mr. James potter, a rice planter of Chatham County, Georgia Sims spent that night, and the rest of his nights in boston, confined to thr jury room of the court House which was reserved for use in federal cases. He was thus technically imprisoned in a federal jail. This expendient was resorted to because there was no United satates prison in massachuasetts, and because state law prohibited the use of its prisons for detaining any person accuased of being a fugitive slave. In the courtroom prison, Sims was kept under close guard by the man of charles devens, the united states marsal. On the next morning, boston awoke to witness one of the most extraordinary spectacles in its existence. During the night, the court house had been barricaded under the directions of city marsal Francis Tukey, iron cains had been girded entirely around the building. Its approaches were cleared by a belt of ropes and cains a long the side walks, and heavy links stretchad across its doorway. The court house was in fatters, bound to the Georgia catton presses. Here was a visible answer,

thought Bronson Alcott, to the questions, What has the north to do with slavery? Tukey had concentrated his man on the scene. The entire regular police force, reinforced by great numbers of special police, patrolled the area and ware stationed around and within the building . Wendell Phillips estimated thr total numbersof the police at no less than five hundred! Only authorized person could get within ten feet of the court House and pass the armed cordon. In effect, this mean that the city government of boston had temporarily suspended the right of an ordinary citizenin a free commonwealth to attend public sessions of its court . News of the arrest and of the exceptional scanes at the court house hurried aboaut the city. Several hundred people, infected with curiosity, clogged court square fro early morning till ten at night. There was no organized attempt at disturbance, although the police were jeered at and scoled by moment; on the other hand, repeated cheers were given fot the union. Not till midnight was the square emptied of the crowds for that day. Word of the whole affair reached Hendry wadsworth Longfellow, who recorded in his journal: April 4, 1851. there is much excitement in boston about the capture of an alleged fugitife slave. O city without soul! When and where will this end? Shame that the great Republic, the refuge of the oppressed, should stop so low as to become the hunter of slaves . Low indeed was the stoping, for the chains across the door of the temple of justice were neither low enough to step over norhigh enough to walk under. Those who entered the court house on special business, lawyers, city officers, members of the press (who could enter if

their views on the slavery question were safe enough), commissioners, and judges even the judgesall had to bow their beck and creep beneath the chains. Tukey, the satrap in the carged, had ordered it so, chief justice Lemuel shaw, venerated for his wisdom and for his advanced age, was among the first that morning to stoop beneath the chains. Decades before, shaw himself had commented that one of the many evils in legally sanctioning slavery was that in degraded minister of the law and profaned the sanctuary of justice. 2. Thomas Simss Case Shaw ,C.J. this is a petition for a writ of habeas corpus to bring the petitioner before this court, with a view to his discharge from imprisonment. Fugitive slaves (are) designated in the constitution as person held to service or labor in one state under the laws thereof, escaping into another. (when the revolusionary war ended) the condition of the independent communities was that of sovereign states, verying greatly in regard to extent of teritory, numbers and strength, with the usual powers incident to sovereign states. Of declaring war and peace, making treaties, and axercising an exclusive Control and jurisdiction over all person and subjects within their persepective territories. These would have been their rights and powers, had no union been formed. In some of the states, large numbers of slaves wer held; in others a few only; but some it is believed, in all, except massachesetts, in which slavery wasbconsidered as abolished by the declaration of rights, adopted as part of the constitution of 1780. Had no union been formed, the state would have been left assert and defend their rights against

each other by war only. If two states bordered on each other, one a slave state and the other a free state, there would of course be a constant affort of slaves to escape into the free state, and a constant temptation to slave owners to follow and recapture them, which must be done by force, unless sanctioned by treaty. Such acts on both sides must be regarned by each as violation of the exclusive territorial right of the other, and justifiable caus of war. Ther would naturally be a constant border war, leading either to interminable hostility or to the subjugation of one by the other. This states of tings could only be avoided by a treaty, by which one party should stipulate not to permit its own territory to be used as an asylumfor fugitive slaves escaping from the other, and the other party should engage to restrsin its own subjects from making hostile incurtions into the territory of the other. It would be in vain for the goverments of the free state to insist that they would enter into no such compact, because slavery is wrong and unjust; each soverign power as a right, by the recognized law of nations, to decide for its self, upons its own internal condition and rfegulation, within its own territory The evil sexisting immediately bevore the adoption of the contitution, and the greater and more appaling evils inprospect, indicated the absolut necessity of forming a more perfect union, in ordet to secure the peace and prosperity of all the states. This could only be done by the several states renouncing and relinquishing a portion of their powers of sovereignty. The (fugitive slave) clause seems to have been, in character, a treaty. It was a solemn compact, entered into by the delegates of states than sovereign and independent, and free to remain so, on

great deliberation, and on thr highest considerations of justice and policy, and reciprocal benefit, and in order to secure the peace and prosperity of all the states. We are to look at the (fugitive slave) clause, to ascertain its true meaning and effect. We think it was intended to guaranty to the owner of a slave, living within the territory of a state in which slavery is permited, the rights conferred upon such state; and thah no state should make its own terretory an asylum and sanctuary for fugitive slaves, by any law or regulation, by which a slave, who had escaped from a state where he owed labor or service into such state or territory, should avoid being reclaimed. The fugitive must not only owe service or labor in another state, but the must have escaped from it. This is the extent of the right of the master. It is founded in the compact, and limited by the compact. It has the refore been held, that if a slave brough into this state by his master, or comes here in the course

of his occupation or employment without having escaped, he is not within the case provided for by the constitution. Comonwealth v. Aves, 18 pick. 193. This results not so much from the voluntary act of the master in bringing or permitting the slave to be brought within the limits of a free state, as because the law by which the person is held to slavery in his own state is local, and has no extraterritorial operation, and because he is not within the provision of the constitution, under which he may be law fully removed, not having escaped. Considering, therefore, the nsature of the subject, the urgent necessity for a speedy and prompt decision, we have not thought in expendient to delay the judgment. I have, therefore, to state, in behalfof the court, undet the weighty responsibility which rests upon as, and as the unanimouse opinion of the court, that the writ of habeas corpus prayed for cannot be granted. Writ refused.

QUESTIONS AND COMMENTS FOR YOUR CONSIDERATION 1. Nowhere in his openion does chief justice shaw mention the name of thomas sims. Do oyu find this omussion revealing? 2. Nowhere in his opinion does saw mention the consequences for Mr. Sims of being returned to georgia it was common knowledge that when a fugitive slave was brought back, he was publicly flogged. Rarely were slaves killed by their owners do not normally destroy their own property. But whipping could teach the runaway a lasson as well a teach a lesson to other potential runaways. 3. Does shaws approach remind you of hearts view of the justice between the greeks and barbarians?

3. Robert M. Cover; the antislavery judge The antislavery judge confronting doctrinal divergence an intense dialectical environment provides a classic instance of cognitive dissonance. In one sense there was a general, pervasive disparity between the individuals image of him self as a moral human beaing, opposed to human slavery as part of his moral code, and his image of him self as a faitful judge, applaying legal rules impersonally which rules required in many isntances recognition, facilitation, or legitimazation of slavery. Thet general, latent inconsistences was ordinarily not a very difficult one the handle. For commonly accepted and supported notions of professional responsibility either isholated such inconsistency from scrutiny or justified, by ipse dixit, the choice of role fidelity. However, in the abolitionist states these, notions began to break down. The judge was confronted with the claim that the devergent character of the doctrinal pattern justified reexamination of the role assumptions. And this claim for reexxamination was no abstraction. The idiological advocate and resister made and reiterated the demand in dramatic and personal circumstances. The normal appeal to a professional role would no longer be sufficient, for it was just taht role that had been putat issue. Each slaves case potentially generated a more particular dissonance between antipathy to a result that would condemn a man, fundamentally innocen, to underserved slavery and the knowladge of belief taht such an actionwas required by fidelity to role expectations and rules. Whatever a judge had decided in accord with the role

expactations, the knowladge of this having sent a man back to slavery or having refused to emancipate a man, was dissonant with his image of himself as someone morraly opposed to slavery. If a judge were to decide in favor of the negro in violation of the role strictures, however, his decision would be dissonant with his image of himself as a man faitful to his judical obligations. There would be a disturbing inconsistency whenever expectations could be expected to dramatize and publicize such dilemmas of conscience, thus making the problem all the more painful and all the more personal Shaws antislaver reputation was as widespreed and secure as that of any judical figure before 1850. He belived in fugitive rendition as a necassary evil. His conception of policy as well as of duty pointed to compliance. But this in no sanse may be taken as a retreat form recognition of the injustice or recuelty done the victim of rendition, nor does it signal a lesser opposition to slavery per se. I would tender a guess that shaws singular act that so captured the imaginationof the abolitioniststhe boing beneath the faderally imposed chains surrounding the court House for the sims casewas also an act fraught with symbolic import for shaw himself. The chains were not of his making. He would have preferred that they not be necessary, but they were there, and his onli choice was between accepting the yoke of office or resigning it. The sense overwhelming and external compulsion, the subjugation of deep personal instinct to social necessity was symbolised by the justices acceptance of the chains.