Among the many things concerning the Civil War and Reconstruction that the profession has lost to the passage of time is a speech given by the Massachusetts lawyer Emory Washburn in January 1861 reminding lawyers that their advocacy directly affects public discourse and the character of democratic society. “The public mind,” he warned, “has lost its balance, and the moral sense of the community has lost its tone.” Lawyers had contributed to this, but if balance and moral sense were to be restored, he believed that the profession would play an essential role.
Two months before Washburn’s speech, Lincoln had been elected with just 40 percent of the popular vote, prompting seven Southern states to secede by his inauguration in early spring. It was a winter fraught with uncertainty and dread. The Gazette of Alexandria, Virginia, warned Southerners of “brawling demagogues” who “must not be suffered to pervert the public judgment, or lead the people to their own destruction.” The South intended to preserve slavery by any means, and, as the Gazette recognized, bellicose rhetoric abounded. But no one could be certain that war would come, let alone that the North would connect Unionism to the cause of abolition, pursue both by military force, and prevail.
Indeed, at that moment, elite Northern lawyers were more interested in conciliation. Efforts to prevent border states from joining the Deep South in secession led to a proposed constitutional amendment that passed Congress in March and was on its way to ratification in the states with Lincoln’s support in his First Inaugural. The so-called “original” Thirteenth Amendment, proposed by Thomas Corwin (a lawyer, former Ohio governor, and member of the House of Representatives in 1861), provided that “No amendment shall be made to the Constitution which will authorize or give to Congress power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.” Like both Lincoln and Washburn, Corwin was a former Whig turned Republican, and like many other Republicans in 1861, he was willing to permanently sacrifice Black freedom on the altar of sectional conciliation. If there is a deeper democratic contradiction than making an unamendable amendment protecting human bondage to a document designed to secure “the blessings of liberty,” it is difficult to imagine.
Well before the Corwin amendment, the legal profession had already fractured on the question of slavery and lawful means to resist it. Dred Scott (1857) put the lie to Thomas Cooley’s 1863 lament that the conflict was “proper for the determination of the courts [but had been] forcibly wrested from their control.” In Dred Scott and other cases, antebellum courts fanned the flames of white supremacy on the invitation of the profession’s elite. In the North, abolitionist lawyers and judges used state habeas proceedings in Ableman v. Booth (1858) and other cases to support Black self-emancipation in open defiance of federal law and the Supremacy Clause.
Ultimately, as “secession winter” gave way to spring, most lawyers, North and South, dropped pen and ink to take up arms after the attack by Southern “Fire-Eaters” on Fort Sumter. Profound constitutional contradictions did not, however, end with the bloodletting of the war. Lincoln would repeatedly suspend the writ of habeas corpus in the North, raising concerns that the war was being conducted in derogation of the very constitutional principles for which it was waged. Even after Black emancipation forced the North and the Lincoln administration to accept that a war to save the Union must be a war for emancipation, ratification of the actual Thirteenth Amendment abolishing slavery and the Fourteenth Amendment occurred at the tips of Union bayonets. Nineteen of the 27 states that ratified the Thirteenth Amendment did so before Lee’s surrender at Appomattox in the spring of 1865, including Southern states under Union military control. Having previously failed due to Southern resistance, the Fourteenth Amendment was finally ratified in 1868 only after Congress broke Southern states into five military districts and conditioned their readmission to the Union on Black enfranchisement, disenfranchisement of former Confederates, and new state constitutional conventions endorsing ratification.
At the same time, leading lawyers across the country were actively laying the foundation for the retreat from Reconstruction—drafting the infamous Black Codes that re-subordinated Black people, insulating anti-Black violence from legal accountability, and arguing in and out of court that the war worked no meaningful change in relations between states and the national government. As early as 1872, Frederick Douglass warned that the Reconstruction amendments “were intended to give full freedom to every person without regard to race or color in the United States”—but “[w]e are not free. . . . The result intended to be reached by the nation has not been reached.” A year later, the Supreme Court made the intended result even more difficult to achieve, narrowly construing section 1 of the Fourteenth Amendment in the Slaughterhouse Cases (1873). Four years later, the Hayes-Tilden Compromise resolved a contested presidential election marred by anti-Black violence at the polls by ending meaningful federal enforcement of Reconstruction. The result was a return to “home rule” and the rise of Jim Crow segregation. Black freedom was once again sacrificed on the altar of sectional reconciliation.
During the earlier uncertainty of “secession winter,” Washburn was working as a professor at Harvard Law School, a job he landed because of the sectional conflict. His immediate predecessor, Edward Loring, had been denied reappointment to the law school after serving as a U.S. Commissioner charged with enforcing the infamous Fugitive Slave Act of 1850 and ordering that Anthony Burns be returned to slavery in Virginia in 1854. Burns’s arrest in Boston provoked large protests outside Faneuil Hall, as well as a failed attempt to rescue him from the federal courthouse by a multiracial coalition of abolitionists. A federal officer was killed in the effort. Thousands of Bostonians lined the streets to protest Burns’s forced rendition to Virginia, and the overseers of Harvard, upset about Loring’s role in the rendition of Burns, declined to reappoint him, handing the job to Washburn instead. The Massachusetts state legislature also voted overwhelmingly to remove Loring from his position as a state probate judge. The famous lawyer and abolitionist Wendell Phillips argued in the removal hearing that judges of the state “shall be decent men at least” and, under the state’s personal liberty laws, cannot “take part in slave hunts.” Against the charge that the proceedings would undermine judicial independence, Philips explained that “the bench is not weakened when we remove a bad judge, but when we retain him.” Earl M. Maltz, Fugitive Slave on Trial: The Anthony Burns Case and Abolitionist Outrage (2010).
Washburn was not innocent in the affair. As governor of the state at the time, and an “eminent” lawyer, he was “pilloried for his inaction in the Burns case.” Abolitionists were incensed. Proponents of sectional conciliation, for their part, thought that duty required Washburn (as a Whig, the state’s highest executive officer, and a lawyer) to affirmatively support enforcement of the Fugitive Slave Act. His inaction thus likely appeared a form of moral equivocation to both sides of the controversy. He was soundly defeated in his bid for reelection months after Burns’s rendition—indeed, the entire Whig party in Massachusetts suffered a staggering defeat in 1854. Albert J. Von Frank, The Trials of Anthony Burns: Freedom and Slavery in Emerson’s Boston (1998).
Given his deep commitment to democratic egalitarianism, why didn’t Washburn use his legal expertise and the leverage of his position as governor to intercede on Burns’s behalf? Like many other Whigs who were anti-slavery in principle, Washburn would eventually become a Republican. He also joined a Union home militia once the war broke out, and published several essays on the legal history of slavery and its abolition during his tenure at Harvard. In this scholarship, he stated plainly that slavery was “an institution . . . hostile to every principle of human freedom.” Washburn, Lecture for the Massachusetts Historical Society at the Lowell Institute (Jan. 22, 1869). Washburn was also ahead of his time in supporting the right of women to practice law, and he “glori[ed]” in 1855 legislation giving married women “the right to carry on any trade or business on their sole account and to keep their own earnings.” As governor, moreover, he advocated “bettering the lot of prisoners, the poor, inmates of asylums, and improving the common schools.” During his term, the legislature passed statutes protecting people with mental disabilities and providing “relief of paupers . . . ; relief for poor debtors . . . ; financial aid in the form of 40 scholarships to the Female Medical Education Society.” Robert Spector, Emory Washburn: Conservator of the New England Legal Heritage, 22 Am. J. Legal Hist., no. 2, 118 (Apr. 1978).
So why couldn’t Washburn see that his fate was bound up with Burns’s? Could he or anyone else have reasonably believed by the mid-1850s that the Fugitive Slave Act was reducing, rather than adding to, sectional strife? It is easy to gloss over figures like Washburn, pre-war skirmishes like this, and similar episodes in the contortions of American law by Slave Power. History doesn’t remember well those who are reluctant to take a stand. Perhaps that is just as it ought to be.
Is there anything to learn from lawyers who do not revel in partisanship? Is neutrality always complicity in oppression? I find nothing redeeming in Washburn’s handling of Burns’s case—there are moments when the law is not just wrong but fundamentally unjust, democratic norms not just distorted but systematically twisted to serve authoritarian ends. Taking shelter in formalisms in these moments is a betrayal of the oath we take to uphold the rule of law. The Constitution, Fredrick Douglass correctly surmised in breaking with Garrisonian abolitionists, is not a “covenant with death.”
But of course one of the hardest tasks is discerning whether a situation fundamentally at odds with the administration of justice in a liberal democratic society has arrived. Washburn was wrong, as were many other so-called “Conscience Whigs” who became Republicans, to think that the 1850s did not represent such a situation. Yet another deferral of Black freedom would not have brought sectional peace—only more suffering and deeper moral and constitutional contradiction.
On the other hand, the rule of law depends on fidelity when “your side” loses a case, a legislative struggle, or an election. Twenty-first-century Americans are all too familiar with “brawling demagogues” and other overzealous partisans on the left and right who are prone to characterize every moment as revolutionary, calling for conscience to override democratic and professional responsibility in the face of any obstacle, every objection, to their ends. Loyalty, for these partisans, is proved not by lending sound judgment and expertise to deliberation within the bounds of the law, but by unblinking obedience to cause.
The gemstone in Washburn’s speech to students at Harvard Law School during “secession winter” was his admonition that the capacity to temper partisan fervor (with sober judgment in oneself, in one’s clients, and in the national discourse) is the very essence of the lawyer’s craft. If equivocation and complicity in wrong are the risks of temporizing and refusing to take a stand (risks made manifest in Washburn’s abandonment of Burns to slavery in Virginia), loss of judgment and submission to the whims of “brawling demagogues” are the price of the fever of partisanship.
As was conventional in 19th-century ethical exhortation, Washburn’s speech began by admonishing his students that building great wealth cannot be the ambition of a lawyer (the “gains of a professional life are ordinarily in small amounts”), and he emphasized that hard work, not eloquence, wins cases (with eloquence you may “entertain and interest a jury, but you do not convince them. . . . [S]tudy your case in all its bearings . . . display the merits of your case instead of yourself, [and] they will listen to you, attentively, and give your argument its fair weight”).
He then turned to the “far wider and higher prerogative” of lawyers in shaping public opinion and “stamp[ing] an impression upon public character.” In American society, sharply divided as it is, “somebody has to do the thinking.”
Notions, the wildest and most extravagant, are constantly struggling to gain a lodgment in the public mind, and so long as they are dealt with only by men who have but a single line of thought, and have never been trained to scrutinize questions as having two sides to them, they often assume for the time being, a weight and importance which sink into insignificance the moment such a test is applied.
Washburn believed that the display of legal training—“the habits of investigating the causes of what you witness, of measuring and testing the weight and force of evidence, of caution in taking any thing upon mere hearsay and tradition”—influenced the judgment and opinions of those who saw the law in action. “The truth is,” he concluded, “our profession is the only one which by training, by habit, and by necessity, is able to carry on excited discussions without awakening personal passion to blind or mislead judgment.”
Washburn’s students in January 1861 were from all parts of the country, including slave states. But even if only Northern abolitionists had been sitting before him, his claim about the democratic responsibilities of the profession would have been salient. No lawyer, no matter how committed to a client or cause, can afford to follow but a “single line of thought,” can fail to “scrutinize” all sides of an issue, or can traffic in “hearsay” and “extravagant” ideas seeking “a lodgment in the public mind.” Our choices affect not only our clients’ cases; they affect the public character and the quality of democratic discourse.
Neither the speech nor his Civil War service and scholarship place Washburn on the right side of history. But remembering his aspiration for the profession is one form of avoiding single lines of thought about the constitutional contradictions of the period. To “scrutinize” his vexing career and speech is not to endorse neutrality or seek reassurance in the way the bar met that moment. The exercise is one in disappointment—a sober reminder that even the most righteous and zealous advocacy must be leavened with the caution, skepticism, and curiosity justly prized for centuries in our profession.
Someone must do the thinking.
