October is Celebrate Pro Bono Month!

October is “Celebrate Pro Bono Month.” It is fitting that we focus on an important aspect of pro bono, the contribution of senior attorneys. The Tennessee Supreme Court, as part of its access to justice initiative, adopted Rule 50A, the “Pro Bono Emeritus Rule.” It permits retired attorneys to do volunteer work, including advice, representation and litigation, with legal aid organizations that offer free services to low-income Tennesseans without having to pay the normal privilege tax and bar fees.

This rule not only benefits the poor; it brings back to our bar tremendous talent, experience and wisdom to the wider benefit of Tennessee’s judicial system and the public good. Yet long before the encouragement of such rules, many senior lawyers did their part. Let us look at one of the earliest, John Quincy Adams.
Adams was the sixth president of the United States and the son of the second. However, some of his greatest accomplishments came after departing the presidency, when he emerged as a dedicated opponent of slavery in Congress and before the Supreme Court. His aim was to limit and eventually end the hypocrisy, injustice and immorality of slavery and accordingly fulfill the promise of human equality enshrined in the Declaration of Independence. He ultimately admitted to being the de facto leader of the abolition movement in America and welcomed the enmity of the “slavocracy.”[1]

Adams had been a Harvard professor, U.S. Senator, ambassador, secretary of state and a gifted Boston lawyer. As a young attorney, he appeared three times before the U.S. Supreme Court, including as the victorious counsel in the landmark case of Fletcher v. Peck (1810)[2] that established the court’s power to declare acts of state legislatures unconstitutional. The same year, President James Madison nominated and the Senate confirmed Adams for the position of Supreme Court justice, but he declined saying, “I am also, and always shall be, too much of a political partisan for a judge.”[3]

The hardworking Adams entered the White House in 1825 with the qualities of a creative mind and unsurpassed diplomatic experience. Nevertheless, his aloofness played into the hands of his political rivals in an age when the “common touch” was of growing importance. Furthermore, from the start, his administration was irreparably wounded by the vicious presidential campaign of 1824, in which he lost the popular and electoral vote to Tennessee’s Andrew Jackson.[4]

Adams only secured the presidency after the selection was thrown into the House of Representatives when no candidate garnered a majority in the Electoral College. Jackson and his followers immediately began a campaign to win the White House in 1828, energized by the allegation that there was a “corrupt bargain” between Adams and House Speaker Henry Clay to deliver the House vote to Adams after Adams subsequently named Clay his secretary of state. Nonetheless, there was no proof of a deal, and Clay’s views were more aligned with Adams’s positions on the issues, particularly the desire for internal improvements, such as the construction of roads, canals and bridges at federal expense. Also encumbering the administration was Adams’s refusal to remove political foes from government offices and his failure to organize a national political party in an era of mounting sectionalism.[5]

In spite of these difficulties and the absence of a popular mandate, Adams proposed a bold agenda of internal improvements consisting of transportation projects along with a national university; scientific explorations; measures promoting commerce, manufacturing, agriculture, science and the arts; and even astrological observatories he termed “lighthouses of the skies.”[6] It was such an audacious plan that many of his friends considered it unrealistic and his enemies called it a dangerous scheme for centralization of authority in the federal government.[7]

Even though President Adams’s agenda failed to recognize political reality, it exhibited a well-thought-out nationalistic philosophy. He believed that the primary way of strengthening American unity was federally funded, economically binding and broadly defined internal improvements. Yet his beliefs failed to grasp the countervailing forces of increasing sectionalism, states’ rights philosophies and slavery, although he loathed each. Congress rejected his proposals, and he was defeated by Jackson when he sought reelection in 1828.[8]

Second Act in the U.S. House

After leaving the White House in 1829, a disheartened Adams returned to his home in Quincy, Massachusetts, but in 1830 was ecstatic upon learning that his neighbors had elected him to the U.S. House. Even though always an opponent of slavery, once in Congress, his views moved in a more radical direction. Originally denying that he was an abolitionist, he came to embrace the designation. He said that his greatest sadness came from the Untied State’s departure from its founding principles through slavery, and his greatest desire was to witness slavery’s demise. He viewed slavery as the cause of sectionalism, political corruption and class conflict between slave-owners and non-slave-owners.[9]

Adams’s opposition, however, was not limited to the effects on society. It encompassed the suffering of the slaves themselves. Adams rejected debate about racial inferiority, arguing that such was immaterial to the Declaration of Independence, natural law and the teachings of Christ.[10] Although he first thought that slavery would die out because of its clear immorality and the moral influence of democracy, he eventually predicted that short-term disunion and even Civil War might be necessary to achieve the triumph of freedom over slavery’s growing power.[11]

During the 22nd Congress alone, Adams presented 15 Quaker petitions seeking the abolition of the slave trade and slavery itself. The House responded by enacting the “gag rule” in 1836, which automatically tabled petitions against slavery and barred their reading. Despite the rule, censure motions and the threat of expulsion, Adams moved to present 21 petitions, some from former slaves. He promised his opponents on the floor that if expelled, his constituents would speedily reelect him. He also fought to repeal the gag rule contending that it violated civil liberties and his right to represent his district. He eventually won repeal in 1844.[12]

Pro Bono for Africans on the ‘Amistad’

In July 1839, 53 Africans, who had been kidnapped into slavery in Sierra Leone and sold in Havana, rebelled on the schooner Amistad. They killed the captain and other crew members and ordered the two Spaniards who had purchased them to sail them back to Africa. Instead, the vessel was seized off Long Island by a U.S. revenue cutter. The Amistad was then brought to New London, Connecticut, where the American ship’s captain claimed salvage rights to the Amistad’s cargo: the Africans. The two Spaniards also asserted ownership, and Spain demanded that the Africans be returned to Cuba as Spanish property lost at sea and to face murder charges.[13]

The Africans were jailed and the claims of the various parties were litigated. President Martin Van Buren issued an order of extradition, but a federal trial court’s ruling blocked the return of the Africans to Cuba. The judge held that no one owned the Africans because they were human beings who had been illegally enslaved. Hesitant to see the Africans freed and thereby anger southern slave owners during an election year, the Van Buren administration appealed to the Supreme Court citing treaty obligations to Spain.[14]

Congressman Adams had long retired from the practice of law when, at the age of 73 and almost deaf, he was persuaded by abolitionists to provide pro bono representation to the Africans before the Supreme Court,[15] his fifth and final appearance before the court and his only appearance in any court in three decades.[16] The appeal was “the first civil rights case to come before the U.S. Supreme Court.”[17]

Historian Samuel Eliot Morison called it “the most important court case involving slavery before being eclipsed by that of Dred Scott.”[18] In preparing his argument, Adams worried: “Oh, how shall I do justice to this case and to these men?”[19] He also wrote in his diary: “I implore the mercy of God to control my temper, to enlighten my soul and to give me utterance, that I may prove myself in every respect equal to the task.”[20]

Although nervous at first, Adams proved equal to the task. He was well-prepared and gained confidence as he made a more than eight-hour argument over two days to a packed courtroom beginning on Feb. 24, 1841. In his spellbinding oration, Adams insisted that his clients were not slaves and hence not property to be returned to Spain pursuant to the treaty. Moreover, he contended that natural rights and the Declaration of Independence were applicable, and it was the duty of the court to protect the rights of all people.[21]

Although a majority of the justices owned or previously owned slaves, the court held for the Africans over one dissent. In a decision written by Justice Joseph Story, the court ordered the “kidnapped” Africans returned to their home in Sierra Leone.[22] Adams would later defeat two attempts in Congress to reimburse Spanish claimants.[23]

Adams’s determination to fight slavery intensified, and he received many death threats. He said that the threats showed the depravity where slavery existed.[24] He became a hero in the North and, because of his powerful speeches in Congress, was called “Old Man Eloquent.” As he stood to begin an address to the House in 1848, he collapsed from a stroke. He died in the House speaker’s chamber two days later at the age of 80.[25]

Notes

1. See Russell Fowler, “Adams, John Quincy,” in 2 Encyclopedia of African American History 292 (2010).
2. 10 U.S. (6 Cranch) 87.
3. Howard Jones, “John Quincy Adams: Eloquent Advocate,” in America’s Lawyer-Presidents 43 (Norman Gross, ed. 2004).
4. See Russell Fowler, “Adams, John Quincy (Administration),” in 1 Encyclopedia of World Poverty 4 (2006).
5. Id.
6. Id. at 5.
7. Id. at 4-5.
8. Id.
9. Fowler, Encyclopedia of African American History at 292.
10. Id.
11. Id.
12. See id. at 293.
13. See id.
14. See id.
15. Id.
16. Jones at 44.
17. Id. at 47.
18. Dudley T. Cornish, “Mutiny on the Amistad: The Saga of a Slave Revolt and Its Impact on American Abolition, Law, and Diplomacy” (review), Civil War History, vol. 34, no. 1, 79-80 (Mar. 1988).
19. Jones at 47.
20. Susan Dudley Gold, United States v. Amistad: Slave Ship Mutiny 73 (2006).
21. See Fowler, Encyclopedia of African American History at 292; Jones at 41.
22. United States v. Libellants and Claimants of the Schooner Amistad, 40 U.S. 518 (1841).
23. Fowler, Encyclopedia of African American History at 292.
24. George A. Lipsky, John Quincy Adams: His Theory and Ideas 41-2 (1950).
25. Fowler, Encyclopedia of African American History at 292.

RUSSELL FOWLER is associate director of Legal Aid of East Tennessee (LAET) and since 1999 has been adjunct professor of political science at the University of Tennessee at Chattanooga. He served as the law clerk to Chancellor C. Neal Small in Memphis and earned his law degree at the University of Memphis in 1987. Fowler has more than 50 publications on law and legal history, and writes the column, “History’s Verdict,” for the Journal.