'To favor the side of freedom': judicial opinions and the law of slavery. (3rd April 2019)

• Record Type: Journal Article
• Authors: Kennington, Kelly
• Is Part Of: Slavery & abolition. Volume 40:Number 2(2019)
• Page Start: 225
• Page End: 239
• Publication Date: 2019-04-03
• Subjects: Slavery -- Periodicals; Slavery -- Emancipation -- Periodicals; Electronic journals; 306.36205
• DOI: 10.1080/0144039X.2019.1606528
• Languages: English
• ISSNs: 0144-039X

Abstract

ABSTRACT: This essay uses the appellate judicial opinions in more than 800 suits for freedom from across the United States to analyze the additional commentary antebellum judges included when issuing their decisions. Judges used arguments that mirrored broader debates between abolitionists and pro-slavery advocates, while also upholding the central importance of the rule of law. In doing so, they sought to defend the judicial system from the many challenges brought by African Americans and other anti-slavery activists. Regardless of their own individual beliefs about slavery, judges often chose to frame their written opinions around appeals to morality. The use of moral arguments allowed judges to anticipate the positions of African Americans and their supporters and then render these ideas irrelevant in the face of positive laws supporting slavery. The decisions they made had real consequences for future legal pathways to freedom, and the ways judges chose to structure their decisions reveal both awareness and anxiety over the power of judicial challenges to the institution of slavery.