The judge was saying that Mark Twain exaggerated, of course, still the author of "Huckleberry Finn" made a point sufficiently accurate that the judge was delighted (and sick at heart, of course) to quote it at the beginning of his own book on slavery.
A. Leon Higginbotham, one of six blacks to become a U.S. Circuit judge, has written the first elaborately documented account of the legal underpinnings of slavery in the American colonies. Oxford University Press published it this week under the title, "A Matter of Color," and Higginbotham hopes it will clarify a few things. The historical white attitude toward black suffering, for example, which brings us back to Mark Twin, and the judge cites this dialogue from the great novel:
"Good gracious. Anybody hurt?"
"No'm. Killed a nigger."
"Well, it's lucky because sometimes people do get hurt . . ."
Funny, of course, as brutality so often is when reduced to words and assisted by art, and it makes the point, moreover, better than your average long-winded sermon.
But it struck Higginbotham, he said, that people seem to think slavery just sort of happened, back in a perhaps barbarous age now outgrown, and that maybe (people think) it was sort of inevitable given the ignorance of the day and the absence of splendid persons like ourselves.
"We need to remember there was Jefferson. All men are created equal. And advertising for his lost slave to be returned.
"And Pinckney, the Carolina gentleman, and Oglethorpe, so opposed to slavery in Georgia (though he had slaves in his Carolina property and profited from the corporation of slave traders of which he was an officer) - these were enlightened men, and Jefferson has been almost deified. Yet Jefferson failed."
There is a clue here, Higginbotham suspects, that we may be as blind as they were - not to slavery, which we no longer support, but to other forms of cruelty which we support not merely by our inaction but by the acmerely by our inaction but by the active intervention and force of our own laws.
But one thing at a time, Higginbotham is 6 feet 6, and restless as the day is long. He is methodical and hardworking, if one may judge from a party given by Oxford at Kramer Books, where the judge laboriously autographed more than 100 copies for people under 35 years of age (he did not count the old folk).
And in his rooms at the Mayflower Hotel he was forever wandering about. Every two or three minutes he answered the phone. He let it ring for a period while he dictated a few paragraphs of a legal opinion into a portable machine he brought with him. And idle hand is the devil's workshop.
"Room service? I'm in room 775, and 20 minutes ago I ordered some coffee and . . ."
Not, "This is Federal Judge Higginbottam . . ."
He loves to talk, which must be a terrible obstacle to a man who needs more hours than the day has got, even if he were mute:
"But this is what I like," he says to anybody who talks with him. "Couldn't we continue - maybe early in the morning. Let's see what the trains . . .
"Hello? Yes. I would like very much to address that institute. Let me check - call me Monday in Philadelphia. Yes, I'd like to. But I would not accept an honorarium. No. I would not . . .
"Let's see," he says, off the phone. Not because he has forgotten the train of thought but because he wants to say a lot of things. "Remind me to wake Kenny (his 13-year-old son, Kenneth Lee Higginbotham, dead to the world in the next room) in 20 minutes."
Rrrrring . . . Rrring . . . "Hello?"
But given a couple of days you can get the main drift, in between rings and in between people balancing mugs of wine at the bookshop where Patricia Harris and . . .
"Well, yes," he says, settling for a moment. "But when people read of Kinte's foot being chopped off, they think how horrible. But my point is, it was perfectly legal.
"You know when I was a little boy and saw the movies about Indians, we all thought how cruel they were, scalping the innocent women and children. I thought they were the cruelest people conceivable.
"Imagine my shock, when I became a man, to discover that the majesty of the law itself authorized scalping slaves whose crime was to try to escape to freedom. You got more money for the scalp if you brought both severed ears along with it. And that was in the law, in the very statutes.
"What I show in this book is that the law itself, the courts, not merely reflected people's prejudices but actively led them. Look at Virginia. At first the institution of slavery was not solidified. Look at 1619 when the first "negers" were brought in by the Dutchman, and look at the Davis case of 1930 and then 1641, and then see 1690 and then through the 18th century. See how the laws themselves become more restrictive, more indifferent to the slaves.
"The rhetoric of the patriots - and generation by generation the laws of slavery becoming more brutal.
"Look at Georgia. Did you read the chapter on Georgia?"
"I read South Carolina."
"Well, Georgia. Georgia was different. Or you might think so, since slavery was banned. All blacks were banned. From the beginning of the colony. So how does it happen Georgia becomes a major slaveholding state? See the course of the law there. See the pattern of the statutes, the pattern of the judicial decisions, and you will see how it came about."
Perhaps it could not have been otherwise?
"Of course it could have been otherwise. There were Quakers in Pennsylvania who had slaves and freed them because the Quaker church said slavery was abominable and Quakers could have no part in it. You talk of economic realities, but think of the Quakers who owned slaves and freed them. Think of that economic reality. But they did it.
"Don't think the actions of men don't make a difference, even in great historical movements. They do make a difference. There were differences between pennsylvania and Massachusetts, and Virginia. Man made those differences, and those laws and those courts.
"You will see - did you read the part on the Sommersett case and Lord Mansfield?You will want to read that. You will see, through the colonies, that although the law varied from place to place, the general direction was the same, to treat blacks as if they were not human, but chattels. Which they were under law.?
The judge has put out a cigar, not before it has perfumed the north half of the hotel, and lit a Kool.
"When I was 16 I was at Purdue, a member of the debating team. We went to Evanston as a team and signed in a hotel. They said, 'We don't take colored.'
"I was the only black member of the team.Our coach had always said that to win the day in a debate you had to look 'em in the eye and speak with assurance. So I looked to him. He had his eyes down and asked the hotel clerk if there was some place I could go. So the rest of the team stayed in the hotel and I went to some roach-infested place.
"And I thought why should I become an engineer? Which was what I had been planning. Maybe to invent some fancy technology that would be used in some institution that wouldn't even admit me."
Another time he went to the college president, and said the few black students had to sleep in the unheated attic of a house because they couldn't get a dormitory. So he asked the president if they wouldn't have some unused dormitory space so they wouldn't be to cold at night.
"He said, 'Higginbotham, the law doesn't require us to let colored students in the dorm, and you either accept things are they are or leave the university immediately.'"
That was only 10 years before the Supreme Court ruled in Brown vs. Board of Education.
"Once an educated man was driving me from a lecture I was giving to the airport, and he said he agreed with much that I said but did not agree the law made all that much difference. It was the individual attitude, he said, that made the difference.
"And I asked him where he went to school, and pointed out the government paid $600 a year more for his education than for a black's in that same system. I asked where he went to college and he said Michigan, and I asked him who he thought paid for that university - his tuition fee?
"And the highway we were riding on. Who paid 90 percent of that, except the federal government? And the plane - the research and development of the plane design, did he think private enterprise had paid all that, or paid for the airport that not everybody uses? And the control of the plane in their air, and so on and on.
"And if you think the effect of government is not important, but only the individual attitude, then it seems to me in your daily life you take a great deal on faith or just willy-nilly.
"I don't say that law is the whole answer. But I'm not the first to say a society may be worse than its laws, but hardly any better. And yet, as you've seen, nobody believes more than I do in the individual and his ability to make a difference. It's just that I do not for a minute forget the force of the law itself."
Kenny was up. Dressed in a jacket. The judge (this was in the morning) had cereal and cream ready for him.
"I guess I'm like most men you meet. I am a one-speech man, and most of it is in my book. It's the first of four volumes. I don't know when I'll ever find time to write the later ones, carrying on the history of slavery from the Revolutionary War.
"I sometimes say 10 years. My wife says maybe 15. A thing I regret is my mother is not alive to see it, because we talked a lot about 'the book.'
"You know she came from Amherst County, Va. She picked tobacco in the fields. I remember when I went to law school, my grandfather said, 'Boy you can't every go South again.'
"But my mother - she had very little education, and yet she understood everything.
"She had more - well, wisdom - than any human I have known. She had unbounded confidence in me and used to say, 'Leon, you can do anything.' She thought I could be president."
"Well," said somebody, "why not?"
Higginbotham leaned back and laughed loud.
"My judgeship is everything to me. I didn't mean I ever gave any thought to anything else. Just what her faith in me was."
Ring . . . Hello? "Look," (in parting) "you may want to take a look at that section on New Netherlands . . .
The waiter had long since come and gone with the coffee. It had been drunk from a glass.
"Mind a glass?" the judge had said. "No cup."
But it never was a cup that made the difference in anything a man ever drank.
Judge Higginbotham's career, following his graduation from the Yale Law School and a clerks hip with Justice Curtis Bok of the Pennsylvania Supreme Court in 1952-1953, has moved briskly ahead.
Apart from private practice ( (from 1954-1962), he was in district attorney offices in Pennsylvania from 1953-1959) and a special hearing officer for conscientious objector matters for the U.S. Department of Justice in 1960-62.
He became a commissioner of the commonwealth's Human Relations Division in 1961-62, and following nomination by President Kennedy, he became the youngest man to serve on the Federal Trade Commission in 1962.
He was sworn in as a U.S. district judge for the Eastern District of Pennsylvania in 1964, remaining until his appointment last October to the U.S. Court of Appeals, with the "exceptionally well qualified" rating of the American Bar Association.
He has lectured at the Universities of Hawaii and Michigan and at Yale, at the University of Pennsylvania, he was adjunct professor in the sociology department of the Wharton School in 1970, and lecturer in law at the law school in 1971.
When vacancies are thought of on the U.S. Supreme Court, Higginbotham's name is sometimes thought of as a possibility. He has received 50-odd awards, ranging from synagogues to the Menninger Foundation, chambers of commerce, interfaith and human rights groups.
He has been a board member of the National Commission of the Causes and Prevention of Violence; the Commission on Reform of Federal Criminal Laws; a trustee of Yale, a regent of the Smithsonian, an officer and life member of the National Association for the Advancement of Colored People, and a member of the American philosophical Society.