Legal writing is by its nature persuasive. Thus, analyzing selected legal arguments in the collection would be a useful exercise. For example, you might analysis how lawyers use references to authoritative sources to bolster their arguments. Begin by analyzing excerpts from a particular argument; in the examples that follow, John Quincy Adams and Gerrit Smith refer to several different sources.
At an early period of my life it was my fortune to witness the representation upon the stage of one of the tragic masterpieces of the great Dramatist of England, or I may rather say of the great Dramatist of the world, and in that scene which exhibits in action the sudden, the instantaneous fall from unbounded power into irretrievable disgrace of Cardinal Wolsey, by the abrupt declaration of displeasure and dismission from the service of his King, made by that monarch in the presence of Lord Surry and of the Lord Chamberlain; at the moment of Wolsey's humiliation and distress, Surry gives vent to his long suppressed resentments for the insolence and injuries which he had endured from the fallen favorite while in power, and breaks out into insulting and bitter reproaches, till checked by the Chamberlain, who says:
"Oh! my Lords;
Press not a falling man too far: 'tis Virtue."
The repetition of that single line, in the relative position of the parties, struck me as a moral principle, and made upon my mind an impression which I have carried with me through all the changes of my life, and which I trust I shall carry with me to my grave… I know not how, in decent language, to speak of this assertion of the Secretary, that the minister of Her Catholic Majesty had claimed the Africans "as Spanish property." In Gulliver's novels, he is represented as traveling among a nation of beings, who were very rational in many things, although they were not exactly human, and they had a very cool way of using language in reference to deeds that are not laudable. When they wished to characterize a declaration as absolutely contrary to truth, they say the man has "said the thing that is not." It is not possible for me to express the truth respecting this averment of the Secretary of State, but by declaring that he "has said the thing that is not." This I shall endeavor to prove by showing what the demand of the Spanish minister was, and that it was a totally different thing from that which was represented…May it please your Honors—If the President of the United States had arbitrary and unqualified power, he could not satisfy these demands. He must keep them as a jailer; he must then send them beyond seas to be tried for their lives. I will not recur to the Declaration of Independence—your Honors have it implanted in your hearts—but one of the grievous charges brought against George III was, that he had made laws for sending men beyond seas for trial. That was one of the most odious of those acts of tyranny which occasioned the American revolution. The whole of the reasoning is not applicable to this case, but I submit to your Honors that, if the President has the power to do it in the case of Africans, and send them beyond seas for trial, he could do it by the same authority in the case of American citizens. By a simple order to the marshal of the district, he could just as well seize forty citizens of the United States, on the demand of a foreign minister, and send them beyond seas for trial before a foreign court.
(Pages 5, 12, 16 and 17, "Argument of John Quincy Adams, before the Supreme Court of the United States" )
What is a suit? It is the prosecution of a claim. The Supreme Court has so defined it.
In Cohens vs. Virginia, the court say:
"What is a suit? We understand it to be the prosecution, or pursuit of some claim, demand, or request. In law language, it is the prosecution of some demand in a court of justice. 'The remedy for every, species of wrong is,' says Judge Blackstone, 'the being put in possession of that right whereof the party injured is deprived." The instruments whereby this remedy is obtained, are a diversity of suits and actions, which are defined by the Mirror to be 'the lawful demand of one's right;' or, as Bracton and Fleta express it, in the words of Justinian, 'jus prosequendi in judicio quod alicui debetur,'—(the form of prosecuting in trial, or judgment, what is due to any one.) Blackstone then proceeds to describe every species of remedy by suit; and they are all cases where the party suing claims to obtain something to which he has a right…But it may be said, that the enactors of this law intended to deny the jury trial to the black race only. Alas, what an outraged race it is! In the words of the prophet Isaiah, "This is a people robbed and spoiled. They are all of them shared in holes, and they are hid in prison houses. They are for a prey, and none delivereth; for a spoil, and none saith, restore."—Such, doubtless, was the intention. Indeed, had the intention been to deny it to the white race also,scarcely would the lives of the enactors have been safe from the fury of that haughty race. This distinction between one portion of the American people and the other, although a stupendous crime, at which all should stand aghast, is, nevertheless, acquiesced in, and approved. by this superlatively guilty nation.
(Pages 6, 7, and 8, "Abstract of the Argument on the Fugitive Slave Law, Made by Gerrit Smith")
Analyze Adams' and Smith's use of authoritative sources by answering the following questions:
- To what authoritative sources do these lawyers refer in making their arguments?
- How do these references further the arguments being made?
- Which references do you find most persuasive? Why?
- Select another court argument from Slaves and the Court and analyze the references to authoritative sources used in it. Are they effective? Why or why not?