Abstract
Excerpted From: Peter Westen, Cognitive Dissonance in the Antebellum South about the Lawfulness of Slavery, 94 Mississippi Law Journal 99 (2024) (184 Footnotes) (Full Document Requested)
The institution of slavery, by its nature, was necessarily grounded in law. For whenever a society adjudges one class of persons as free and another as enslaved, law-like norms must exist to identify and distinguish the free from the enslaved. And whenever a society institutionalizes slavery, law-like norms must exist to establish the privileges and disabilities possessed by masters, by the enslaved, and by third persons in relation to masters and slaves. Such master-slave norms may not always be enforced. But, until societies disavow or disremember them, they constitute standards of right and wrong that master-slave societies profess to embrace.
American slaveholding colonies and states implicitly understood slavery's dependence on law by adopting comprehensive slave codes, enacting thousands of statutes and issuing thousands of judicial opinions that addressed the rights and duties of slaveholders, slaves, and third persons in relation to masters and slaves. Judicial opinions in particular provide unique insight into master-slave norms because, unlike legislators who can promulgate rules without accompanying justifications, judges are institutionally obliged to justify their rulings by referencing established norms or, at least, endeavoring to do so.
This essay examines a set of antebellum southern judicial opinions in the 1850s that I believe reflect growing cognitive dissonance among southern public officials in general and southern judges in particular about the legitimacy of slavery. The cases involve litigants like Dred Scott--persons who had been slaves by law when they lived in the South, who had moved North with their owners where they were deemed legally free, and who then returned South where their owners successfully reclaimed them as slaves. Southern cognitive dissonance stemmed from southerners' embracing two norms, whose subjects were all Black--namely, one governing Black slaves who lacked valid claims to freedom under southern law, and another governing Black persons who, regardless of whether they were currently held as slaves, possessed valid claims to freedom under southern law. Southern public officials widely and publicly embraced both norms: they supported Black slavery as institutionalized in the South, yet, they simultaneously supported liberty for Black persons who, though they might be currently held as slaves, had valid claims to freedom under southern law, whether by virtue of (i) deriving their free status from descent from maternal ancestors who, rather than having been lawfully enslaved when giving birth, were rightly free; (ii) manumission; (iii) state-ordered emancipation; or (iv) residence in a free state or territory the laws of which southern states recognized.
Dred Scott-type cases help reveal how southern judges and southern public officials, in general, justified Black slavery while simultaneously demanding emancipation for Black persons who possessed valid claims to freedom. They did so by invoking a legal distinction that many slaveholders in the South would have embraced as well -- the normative distinction between (1) the legitimacy of holding in slavery Black persons who had either been lawfully enslaved abroad (and who had not since been lawfully manumitted or emancipated) and/or Black persons who descended in an uninterrupted maternal line from such persons (and who had not since been lawfully manumitted or emancipated), and (2) the illegitimacy of enslaving Black persons of other origins and descriptions.
Antebellum public officials relied upon the distinction to reject out of hand abolitionist criticism that, by virtue of holding slaves, they were “man-stealers,” “pirates,” “robbers,” “kidnappers,” and “enslavers.” By the early 19 century, however, the distinction between norms 1 and 2 became increasingly incompatible in the minds of southern public officials, though they may not have been fully conscious of it.
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Antebellum southern lawmakers and jurists widely and publicly embraced two norms regarding slavery, viz., that the institution of slavery as defined in the South was morally acceptable, and that it was morally wrong to enslave Black persons who by right were free. However, southern lawmakers failed to perceive the cognitive dissonance between the two commitments because they were unaware of the implications of their burgeoning belief that African wars and raiding parties, like those of the Barbary pirates in North Africa, did not justify perpetually enslaving war captives and their descendants.
How would southern lawmakers and jurists have responded if obliged to surrender one commitment or the other? Some might have responded by disavowing slavery. However, given white southerners' economic stake in slavery and their fear of freeing millions of Black persons, the majority is unlikely to have disavowed slavery. Yet, in adhering to the status quo, candor would have obliged them to acknowledge that, rather than merely holding slaves, they were veritable enslavers who, to quote Judge Gamble, had “inherited” their “fortunes” from the “iniquitous traffic” in “kidnapped slaves from the coast of Africa”.
Frank G. Millard Professor of Law, Emeritus, University of Michigan.
