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Resistance Lawyering Resistance Lawyering Daniel Farbman* This is the story of a group of abolitionist lawyers who devoted themselves to working within a legal system that they considered to be fundamentally unjust and illegitimate. These “resistance lawyers” used the limited and unfriendly procedural tools of the hated Fugitive Slave Law of 1850 to frustrate, oppose, and, if possible, dismantle the operation of that law. Abolitionist resistance lawyers were forthrightly committed both to ensuring that their clients remained free and to using the cases that arose under the Fugitive Slave Law to wage a proxy war against the institution of slavery. Their daily direct service practices were inextricably linked to their movement politics and aspirations for systemic reform. Using new archival research that upends the existing historical consensus, I show that this linked practice was dramatically more effective than previously thought, both in protecting individual clients and as a means of building political opposition to slavery in local and national politics. This history should serve as a provocation for contemporary resistance lawyering. Many lawyers today practice within a legal system that they oppose in the hope of frustrating or dismantling that system. I suggest that today’s resistance lawyers can learn from the abolitionists’ integration of politics and daily practice as they fight to increase the political power and salience of their own work. Introduction ...................................................................................... 1878 I. The Law of Slavery and The Fugitive Slave Law ........................... 1884 DOI: https://doi.org/10.15779/Z38610VS5C Copyright © 2019 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. * Assistant Professor, Boston College Law School. For invaluable comments, encouragement, and corrections, I am grateful to Emily Berman, Mary Bilder, Mark Brodin, Amanda Claybaugh, Andrew Crespo, Julie Dahlstrom, Henry Druschel, Anna Gee, Ben Grossman, Hiba Hafiz, Mary Holper, Dan Kanstroom, Ben Levin, Scott Levy, Ken Mack, Aziz Rana, John Rappaport, Diane Ring, Joe Singer, John Stauffer, Susannah Barton Tobin, Catherine Wells, the participants in the Iowa Law School Faculty Workshop, the participants in the University of Hastings School of Law Workshop, the participants in the Boston University Law School Workshop, and the participants in the Boston College Junior Faculty Colloquium. 1877 1878 CALIFORNIA LAW REVIEW [Vol. 107:1877 A. The Fugitive Slave Laws ................................................. 1889 1. The Tip of the Iceberg ............................................... 1889 2. The Mechanics of the Fugitive Slave Laws ................ 1891 a. The Fugitive Slave Law of 1793 ......................... 1891 b. The Fugitive Slave Law of 1850 ......................... 1893 II. Lawyers Resisting Slavery ............................................................ 1895 A. A New Account of Resistance Lawyering Under the Fugitive Slave Law ....................................................................... 1899 B. Resistance Lawyering in Practice .................................... 1905 1. Escape ...................................................................... 1905 a. Shadrach Minkins ............................................... 1906 b. Lewis ................................................................. 1909 2. Purchased Freedom ................................................... 1911 a. Stephen Bennett .................................................. 1913 b. Horace Preston ................................................... 1915 3. Exoneration ............................................................... 1918 a. Tamor Williams .................................................. 1918 b. Rosetta Armstead ............................................... 1921 4. Returned to Slavery ................................................... 1924 5. A Note on Ethics ....................................................... 1927 III. Resistance Lawyering Today ....................................................... 1932 A. What is Resistance Lawyering Today? ............................ 1932 B. The Death Penalty ........................................................... 1939 C. Criminal Defense ............................................................ 1943 D. Immigration .................................................................... 1950 E. Conclusions .................................................................... 1952 INTRODUCTION Like most abolitionist lawyers, John Joliffe thought that the Fugitive Slave Law of 1850 was a moral atrocity. That infamous law had been explicitly designed to create a summary process that would help Southern slave owners repossess human beings that they claimed as their slaves. Both the substance and the procedure of the Law were so anathema to abolitionists that antislavery activists like Jolliffe did not consider it worthy of respect or obedience. Living in Cincinnati, Ohio, just across the Ohio river from Kentucky, Jolliffe was stationed at one of the most active border crossings for the human beings who risked their lives to flee slavery.1 The Fugitive Slave Law of 1850 was written 1. The terminology around slavery is complex and highly debated. See Lucy Ferriss, The Language of Enslavement, LINGUA FRANCA (Oct. 12, 2017), https://www.chronicle.com/blogs/linguafranca/2017/10/12/the-language-of-enslavement [https://perma.cc/6L5S-F43F]. In this Article I have chosen to refer to the system and institution as “slavery” and to refer to a general class of people who were enslaved as “slaves.” When speaking about 2019] RESISTANCE LAWYERING 1879 expressly to ensure that those people who had risked their lives to come north would be arrested and sent back south to slavery with as little process and public outcry as possible. So when Jolliffe took the case of a man named Lewis in the fall of 1853, he was lawyering not to legitimize the law, but to kill it. From his first moment on the job, Jolliffe sought to throw sand into the works of the procedures set out under the law. Jolliffe had the federal officials holding Lewis arrested; sought every continuance and delay in the courtroom that he could get; and tried to get the state courts to step in and interrupt the federal process.2 He made the most of the limited tools available to him under the Fugitive Slave Law of 1850 to dismantle that law from within. On the day that the commissioner was supposed to decide his fate, Lewis slipped out of the packed courtroom unnoticed and escaped into a friendly crowd of antislavery onlookers. From there, dressed as a woman and hiding in a series of safe houses, he eluded the grasp of his former master and made his way to freedom in Canada. Lewis’ escape was an act of bravery largely made possible by the support of a strong and organized local abolitionist movement. It was also made possible by the work of his lawyer. Lewis was among a surprisingly large number of alleged fugitive slaves who, despite having been caught in the grasp of one of the most infamously draconian laws in American history, escaped that grasp into freedom. Scholars have long told the story of the Fugitive Slave Law of 1850 as a total tragedy where nearly every alleged fugitive caught in the web of the Law was doomed to be returned to slavery. My research reveals that we have this story at least partially wrong. Nearly four out of every ten people who were caught in the Law’s process ended up free. No one simple summary is adequate to explain this surprising outcome. The stories of these alleged fugitive slaves are complex, and the people most responsible for the successes were undoubtedly the alleged fugitives themselves, followed closely in importance by the (usually black) movement these people in any more particularized way, I will refer to them not as slaves but as people who were enslaved. In addition, when referring to those people who were caught up in the process of the 1850 Law, I will refer to them as “alleged fugitive slaves.” These choices are far from perfect, but seek to balance two conflicting truths about doing history in this period. First, slavery existed and was a fundamental part of American life for more than two centuries. Human beings were bought and sold as property and understood in private and public discourse as slaves. In our commitment to recover the agency of those human beings, we should not elide the depth and width of the social, political, and legal force of the label “slave.” Still, as totalizing as slavery was in the past, historians also have an obligation to translate past into present. The human beings at the heart of this story (and of all stories about slavery) cannot and should not be reduced to a label that bears the stigma of oppression. Claims to ownership were contested in ways small and large, and the agency of enslaved people was a powerful force in the politics of the nation. Whether these terminological choices adequately balance the competing concerns laid out in this note, I am not sure. Those of us writing about these lives bear the responsibility, at a minimum, to grapple with these questions. 2. See infra, Part II.B.1.b. 1880 CALIFORNIA LAW REVIEW [Vol. 107:1877 activists who fought tirelessly for their freedom.3 What is more surprising is a third leading explanation: lawyers. Close attention to the stories of
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