PAPER TOPIC I
When and Under What Circumstances
Imagine that you are miraculously transported back in time to the year 1856, to Massachusetts before the outbreak of the Civil War, to a time in American history when slavery is still practiced throughout the South. Massachusetts is a free State, but that much you know since you live here and you yourself are an abolitionist.
You find the practice of slavery morally repugnant and you have spoken out against it at numerous social gatherings. Your brother also happens to be a Federal judge; this is his job; and he has just been asked to hear a case involving one named "Jim" (last name unknown), a slave from Virginia who fled from that State to Massachusetts nearly three years ago. A little more than a month ago a slave-catcher located Jim and now his owner wants him back. Jim's owner has dispatched an agent to collect his "property."
Several prominent members of the community of Lancaster where you live have come to know Jim over the last three years. He has been working for the Rowlandson family and during this time has been treated as a human being with many of the rights and respect that a human being can reasonably be expected to enjoy. Jim loves his new home in Massachusetts and does not want to go back to Virginia.
The people of Lancaster have secured Jim the best attorney they could find. You too may have contributed to Jim's Defense Fund, but since contributors to that Fund have never been made public that's for you to know and for us to find out. A hearing has already been held at which it was determined that Jim should be returned to his owner. Jim's lawyer has, however, objected to these proceedings and the case has come before your brother on appeal and by special writ. Jim's lawyer contends that the hearing was a mockery of justice. There was no jury and the federal official who presided knew that he stood to gain a higher fee if Jim was returned than if he was not. "How can we," Jim's lawyer argued, "honestly presume that this official's judgment was impartial?" Jim was arrested without a warrant and was given no opportunity at his hearing to question his status as a slave. For three years now Jim has been living in a free State, in the City of Lancaster in the State of Massachusetts. "Surely," Jim's attorney argued, "this should count for something."
Jim's attorney does, however, acknowledge that the procedures which he found objectionable were established by Congress in 1793 and 1850 in statutes known as The Fugitive Slave Acts. These laws are the law of every state throughout the country. Jim's attorney believes that Massachusetts as a free state ought to establish its own procedures to ensure that the rights of individuals like Jim to both due process and a fair hearing are strictly observed. But for now, up to this point, Massachusetts has adhered to The Fugitive Slave Acts and abided by the procedures these Acts establish.
is Civil Disobedience Justified?
Is There a Moral and a Legal
Jim's owner from Virginia has not even bothered to hire an attorney for the scheduled appeal. He is allowing his agent to make the case before the judge since he believes that the case is open and shut. Even if Massachusetts adopted its own procedures to deal with matters of this kind, the Constitution of the United States clearly states that if a "Person held to service of Labor in one State escapes to another, he shall not, in consequence of any law or regulation of the latter, be discharged from that service." This provision in the Constitution was adopted as part of what is generally known as "the grand compromise" between the slave states and the free states. And the Fugitive Slave Acts were simply enacted to give effect to this Constitutional provision. Indeed, Jim's owner has serious doubts whether this appeal is even legal since the Fugitive Slave Acts simply require a hearing. That hearing has now been held and all the procedures specified by Congress and in the Acts were followed to the letter. It was determined that Jim should be returned to Virginia. Jim's owner has been overheard to say several times: "What's wrong with those folks up North? The issue is settled; enough already," or words to that effect.
Jim's owner further argues that the original hearing in Massachusetts was only intended to be preliminary as The Fugitive Slave Acts clearly state. Jim has not been deprived of due process of law; due process will take place in Virginia after Jim is returned. In any event it is wrong to require a full scale trial in Massachusetts to determine Jim's status since this would in turn require Jim's owner to bring a large number of witnesses more than 500 miles to be heard before a jury which is likely to be opposed to the very institution of slavery on which his claim is based and would, in effect, deprive him (Jim's owner) of his slave, that is, of his property without due process of law, and deny him (Jim's owner) of his Constitutional rights. Jim's lawyer, however, (to complicate matters still further) has come to believe that the pro-slavery provisions of the Constitution and the Fugitive Slave Acts violate Jim's more fundamental right to be free.
The judge, your brother, has taken all this in, heard all the arguments on both sides and recently released his decision upholding the lower court's ruling that Jim be returned to his owner. The opinion was only a few pages long. In it the judge took the unusual step of confessing that he himself was personally opposed to slavery; indeed he wrote that he too "found it morally repugnant." "But," he continued, "as a Federal Judge sworn to uphold the law and the Constitution I have no choice but to support the finding of the lower court and order that Jim be returned, post-haste, to Virginia."
Immediately after the decision was issued you had a conversation with your brother, but since that conversation took place in private nobody except you and your brother knows what was said.
During the time of the appeal Jim has been staying with the Rowlandson family who posted bond with the local authorities promising that Jim would not escape during the appeals process. Now that further legal recourse has run out, the owner's agent will be on the Rowlandson's doorstep, court order in hand, to retrieve his property. This was expected to occur bright and early the following day. There was a meeting at the house of one of the main contributors to Jim's Legal Defense Fund at midnight to discuss what ought to be done. Since no one kept minutes at this meeting, it is not known exactly what was discussed or who was in attendance. Several residents of Lancaster as they were about to turn in for the night thought they saw you go off in that direction, but when pressed, they could not be sure. You apparently know whether you were there or not and if you were, you know what was said and what you said, too.
Obligation to Obey the Law?
Is Civil Disobedience Democratic?
Although we cannot be certain what was said at the meeting, the following morning a group of citizens from Lancaster staged a sit-in on the porch of the Rowlandson house in a clear effort to prevent the agent from exercising his owner's right to retrieve his property, to fetch Jim and take him back to Virginia. A crowd gathered outside the Rowlandson house, filling the street and the pathway around the front-yard. Some joined the sit-in; some did not. It was rumored that you joined the sit-in, but when several of those who stood by were asked who had joined the sit-in and who had not, no one seemed to be ready to let on one way or the other. There is evidence that you were there, but it's not known whether you stood by or joined in, although (surely) you know where you were and what you were doing that day.
The owner's agent arrived, walked through the crowd outside the house, passed through the gate and to the foot of the front steps leading up to the porch which was by this time full of folks sitting shoulder to shoulder with their arms locked together. The agent asked if he might pass, but no one budged. No one yelled out ugly epithets; everybody just sat there, unmoving and unmoved by the agent's pleas to be allowed through. The agent read the court order aloud to those within ear-shot. Since the agent had a big voice, nearly everyone could hear him, those on the porch and in the street. Some said he could be heard one block away. Again the agent asked those in his immediate path to move aside so that he might walk to the front door. No one budged. Someone started to sing. That did it for the agent; he said he was going, but that he would be back. "I'll be back," he said in that expansive voice of his, "I'll be back with reinforcements and next time I won't be denied." And on that note he left. After he had disappeared 'round the corner, several of the children in the crowd imitated his voice. "I won't be denied," they said, slapping each other's hands, palms up, "I'll be back and I won't be denied." Several parents were heard to say "Shush."
Three hours later the agent was back with five police officers, an impressive turn-out given that Lancaster only had a total of six police men on the local force. The crowd outside in the street parted and let them through. This time the agent stood back and let one of the police officers do the talking. He said that the agent was within his rights, that he had a Federal Court order and that they (the police) would have to enforce the order. He then asked everybody to move aside so that they could enter the house and help the agent exercise his rights and collect his property. At that point a number of people got up and moved away, joining the crowd in the street, but others quickly moved to take their places. Someone from the midst of the crowd yelled "You ain't gonna get through," and from the looks of determination on the faces of those left on the porch, he was right.
Then the police officer with the help of his fellow officers started to place one person after another under arrest. In each instance each person on the porch was asked once more if he or she would move aside. When that person did not move, the person was charged with obstruction of justice and placed under arrest. After they were placed under arrest, some stood up and walked with the police to one of the horse-drawn carts that the police had brought with them to the Rowlandson's. Some, however, refused to move and had to be carried by two, sometimes as many as three police officers to the carts. After the arrests, the agent with the help of two police officers entered the house and came out with Jim. Jim had a large green knapsack given to him by the Rowlandson's. It contained his belongings. He was escorted by the two officers. With the agent leading the way, this group left the porch and walked down the path to the front gate. They passed through the crowd in the street. They passed by the protestors in the carts. They then rounded a corner and were gone. Jim was on his way back to Virginia.
Can the State Tolerate Acts of Civil Disobedience?
The protestors were taken directly to the courthouse where they were each formally charged with obstruction of justice.
This all happened earlier today, Wednesday, September 26th. Trial has been set for October 9th, a week and a half from today.
Rumor has it that you were arrested, but some people believe that when the agent returned to the Rowlandson house with the police and the protestors were asked once more to move, you got up and left the porch to allow the police to do their duty. There are others, however, who swear you never joined the sit-in in the first place. What did you do? Did you join the sit-in or did you stand back and watch it take place? If you did not join the sit-in, why not?
In the course of drafting your defense you may wish to think about what you said to your brother about his decision, about the court's decision to uphold the lower court's ruling to return Jim to his owner? Did he, your brother, really have no choice as a Federal Judge but to uphold the lower court's ruling?
But you are the one on trial? What about you? You are not a judge but a citizen. What is your job as a citizen? What are your responsibilities?
Was that a responsible way for a citizen of this country to act?
More pressingly, how are you going to defend yourself at trial (if, indeed, you have gone and got yourself arrested)? What are you going to argue?
You don't have very much time to put your case together. (Remember the trial date is fixed a little less than two weeks from today). You have been doing some reading. You are a student at Brandeis and you are smart, although how that is possible we're so sure since it is, after all, 1856, and Brandeis was not founded until 1948 the year in which India gained its independence from British rule and Gandhi was assassinated. Among the readings you have looked at are Plato's early dialogues, The Apology and Crito, Thoreau's "Civil Disobedience" and selections from the writings of Gandhi and Martin Luther King, although (again) how their writings (Gandhi's and King's) came into your hands is a bit of mystery since they did not see the light of day, that is, were not published, let alone conceived, before the twentieth century, although Plato dialogues and Thoreau's essay, first published as "Resistance to Civil Government" in May of 1849, were available at the time of the sit-in, your sit-in in Lancaster, in 1856.
Drawing on the arguments of Socrates, Thoreau, Gandhi, and Martin Luther King, draft a defense of your decision to break or not to the law by joining or not joining the sit-in at the Rowlandson house in 1856, think of the most powerful objections that might be raised against your position and respond to them.
Offer the best defense you can think of for the action you took. What line of reasoning in Socrates, Thoreau, Gandhi or King, if any, best justifies your action? Try, really try, to convince a friend, a neighbor, a fellow citizen who did not do what you did that what you did, the action you took, was an action that any responsible citizen ought to take.
Why Be Civil?
In the course of drafting your defense, offer a reasoned response to each of the following two opinions, brought up and read to you by your brother when you visited him in his chambers to consult with him for advice, although (again) how it came about that your brother had the book and journal from which these quotations came is somewhat odd given that both journal and book were published years after the middle of the nineteenth century.
(1) "Suppose an individual to have decided that some law or policy is not for the common good, how ought he or she act in regard to it? The answer of common sense is simple and sufficient. A person should do all a person can by legal means to get the law or policy changed, but till it is changed, he or she should conform to it." - T. H. Green, Lectures on Political Obligation
So, too, in drafting your defense of your action in this specific instance, i. e., in the case of the sit-in and protest in Lancaster in 1856, make a reasoned effort to answer the following two more general questions:
(2) "Arguments raised in defense of individual conscience, that is,
moral imperatives and appeals to a 'higher law,' be it secular or transcendent, are inadequate when applied to civil disobedience; on this level, it will not only be difficult, but impossible to keep civil disobedience from being a philosophy of subjectivity. . . intensely and exclusively personal, so that any individual, for whatever reason, can disobey." - Nicholas Puner, New York University Law Review.
(1) When and Under What Circumstances is Civil Disobedience Justified?
(2) Should a Democratic State Tolerate Civil Disobedience? And if so, how?
GUIDES TO READING AND WRITING PHILOSOPHY
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Last Modified: 08/26/04
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