Living in Another World, Living In Another Time
“Just like a pioneer in a new frontier I don’t know where to begin, because nobody cares when a man goes mad and tries to free the ghost within.”
Jupiter Hollow (Livin’ In Another World)
The great hack Chief Justice John Marshall owned a lot of slaves, many more than previously assumed. Such is the discovery of the insightful legal historian Paul Finkelman. In his new book, Supreme Injustice, Professor Finkelman dissects all of the decisions relating to slavery during the period when John Marshall was Chief Justice of the Supreme Court (1801-1835) and provides incontrovertible evidence which casts doubts on the reputation of “the Great Chief Justice” as a neutral force in the formation of the slavery jurisprudence of the new nation. This information and analysis is sure to meet with yawns by most and surprise by the some that care about such things. Not me. I have been suspect of the life and work of the man known as “the great Chief Justice” for a long time. His concept of “judicial review” and its evil stepchildren “original intent” and more recently “originalism” have evaded analysis of their roots in slave owner doctrine for over two hundred years. It is time to consider these concepts in their true historical context.
To truly understand early American History, especially its legal history, a good place to start is on the streets of London in the mid to late 18th century. That is where British subjects from America were bringing their property, human beings of African descent, and treating them as harshly as they did back home. Slavery had never been common in England, yet it was a country made wealthy in part by its participation in the trade that brought human chattel to its colonies. Thanks to a growing awareness, many in England found it appalling when, in 1767, a black man named Jonathan Strong was beaten to within an inch of his life by a white man and left to die on a London street. The white man was not prosecuted, as even in England it was not in vogue to prosecute a man for damaging his own property. Were it not for an idealistic young lawyer named Granville Sharp, and his brother the physician, William Sharp, Jonathan Strong would have died on that street and that would surely be the end of his story. But Strong did not die and was nursed back to health by the good doctor. An again robust Jonathan Strong was then recognized by his “owner” as the human chattel he once had been. A suit was brought in the British courts to have this man named Strong submit again to his master. The Sharp lawyer named Granville argued that beating a man to within an inch of his life constituted abandonment of property and the courts of England agreed. In the years 1767 to 1772, the court system of England was a place where slaves of the colonies had legal rights including the right to assert their freedom, a truly befuddling development to the loyal British subjects of the Americas. The learned judges of the British legal system were exploring and debating the philosophies of their time, Natural Rights and the yearning of all people to be free, and applying these concepts to slaves and their plight on distant shores.
The Sharp idealistic lawyers of England put forth all kinds of arguments to have their clients declared free from their bondage. Not every slave was beaten to a pulp, so the argument used in the case of Jonathan Strong, while useful, was not of universal application. Some slaves, when in England for the business of their owners, were surreptitiously taken from their owners and Baptized in the hope that the courts would recognize that a soul once dedicated to Jesus Christ could no longer inhabit the body of a slave. That thought had been grappled with in the colonies well back to 1667, when the colony of Virginia passed a law which explicitly decreed that Baptism did not exempt a slave from bondage. In England, where there was no such law, that legal strategy worked sometimes but not all the time. A showdown was brewing between those who thought that owing to the concept of Natural Law there was no place in England, or anywhere in the civilized world, for slavery, and those who were going about their business in a world which for hundreds of years protected the rights of one privileged person to own another human being.
Perhaps the greatest legal mind ever to sit on any court was destined to address the slave controversies. Lord Mansfield, the chief justice of the British High Court, had practically invented Commercial Law and codified British Insurance Law and Maritime Law and Property Law. He was considered a friend of the monied interests of Great Britain which included those who owned slaves in America or had grown wealthy through the slave trade. Yet Lord Mansfield also recognized the concept of Natural Law as did his contemporary, the legal philosopher William Blackstone, who summed up the term nicely…
“This is what is called the law of nature, which, being coeval with mankind, and dictated by God himself, is, of course superior in obligation to any other. It is binding over all the globe, in all countries at all times. No human laws are of any validity, if contrary to this; and such of them as are valid, derive all their authority, mediately or immediately, from this original.”
Much debate has ensued over the breadth and significance of the holding by Lord Mansfield in the case of Stewart v. Somerset in which the great jurist declared the obvious, that the institution of slavery was “odious” and against Natural Law. http://www.duhaime.org/Portals/duhaime/PDF/CASES/Somerset%20v%20Stewart%2C%201%20Lofft%201%2C%201722.pdf Lord Mansfield asserted that the laws of England and not the laws of the colonies would control the slave issue in England, even as to a slave from the colonies. He noted that the institution of slavery, as an affront to Natural Law, could not exist without positive law permitting it. There was no such positive law in England. He therefore set free the slave, James Somerset and with him perhaps every slave in England. It remains unclear what Lord Mansfield would have decided were there some positive law in England permitting slavery. Would he rely on the supremacy of the Natural Law or would he defer to the will of the legislature? Somerset was a major victory for the Sharp lawyers, but it still left open the issue of the legality of slavery in the colonies, where numerous positive laws permitted the existence of the peculiar institution.
The significance of this 1772 case to prerevolutionary America was debated then and still today. Many historians share the view of Benjamin Franklin that the case had little significance, having only freed one slave of the colonies who happened to make his way to England and get a good lawyer. Other legal historians, most notably the Blumrosens in their book Slave Nation, argue that in America, or at least the South, the decision was viewed as significant and a possible first step towards the dismantling of the institution of slavery. In this view, the Somerset decision was a driving force to persuade the now nervous southern colonies to join the perpetually dissatisfied north in the American Revolution, basically asserting that but for the Somerset decision the Revolution might have never happened. (Note: I share this view http://idiscoveredamerica.com/?p=443).
It is not my role here to relitigate Somerset or to give it more significance than has history. Here I will only assert that the decision raises the issues of Natural Law and Natural Rights in the context of the laws concerning slavery. As was fashionable in the 18th century, we can debate Locke and Blackstone in an attempt to determine the parameters of Natural Law and Natural Rights. I have heard many clearly political issues wrongly defended on a purported argument of their requirement under Natural Law. The question I ask is whether the law of slavery has any such doubt. I think not. Slavery is odious and against Natural Law. We don’t need a genius like Lord Mansfield to tell us that, anyone can tell us that. But it takes a clever hack like Chief Justice Marshall to devise a system where the obvious is ignored in favor of the expedient and the politically repulsive. “Let justice be done though the heavens may fall”, asserted Lord Mansfield in the Somerset decision. “Maybe not”, (not a direct quote), is the response from the pen of Justice Marshall throughout his period as Chief Justice. In decision after decision, the great hack Chief Justice Marshall ruled in favor of the slave holder.
The concepts of judicial review, original intent, and originalism have their origin, or at least their operative instinct in the decision of Chief Justice Marshall in the seminal case of Marbury v. Madison decided in 1803. In that decision, the Supreme Court asserted the supremacy of the Constitution as the law of the land. Under that ruling, the courts would be the arbiters of what the Constitution permits the other branches of government to do and could strike down laws of Congress or acts of the executive as unconstitutional. On its surface this not only makes complete sense, but it also seems to have absolutely nothing to do with slavery. It seemed like a neutral ruling for new country, a country which was the first to have a debated if not a perfected Constitution. A deeper view shows this surface analysis to be all wrong.
‘Supremacy over what?’ is the important question. Read again the above quote about Natural Law from Blackstone. By asserting the supremacy of the Constitution in Marbury v. Madison, Marshall was arguing for the submission of Natural Law to a piece of paper, one that had been drafted largely by slave holders. ‘Impossible’ would say Blackstone. ‘Impossible’ should say any student of legal philosophy. Judicial Review is but a clever ruse. It denies the purpose of any system of laws in favor of the words contained in one Constitution.
It did not have to be that way. There has always been a sense, going back to the bible, that good judges find a way to do what is right. Great Britain has no constitution, yet it has succeeded in being a civilized nation. Great Britain managed to end participation in the slave trade and slavery in its domain both before America, and it managed to do so without anything close to judicial review. The reliance on the constitution, as argued in Marbury v. Madison, managed to impede the progress of America towards a more perfect union.
America’s founders did a pretty good job of airbrushing race and slavery out of the founding documents. There is barely a reference to these issues that drastically affected the lives of all colonists and the earliest Americans. One needs a magnifying glass, a stiff drink and an accurate compass to find the laws which govern race relations in either the Declaration of Independence, the Federalist Papers, the Articles of Confederation, the Constitution, the laws passed by early Congress, or the decisions of the courts, including the Supreme Court. There is a quote attributed to James Madison which says it all…“[The Convention] thought it wrong to admit in the Constitution the idea that there could be property in men.”– James Madison, Records of the Convention, August 25, 1787. There were millions and millions of humans in America owned from birth or importation and worked to death from the time of the Declaration of Independence to the Civil War. About 750,000 Americans died as a result of the conflict largely fought about this one issue. How much of it would have been different if the issue had been dealt with in a forthright manner at the inception of the country? That question is impossible to answer. Still I believe that much of American History would be different for wont of eight words that I think Chief Justice Marshall left out the penultimate paragraph of his decision in Marbury v. Madison, words that a large slave holder like Marshall would not have considered…
Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that except as to rights derived from Natural Law, courts, as well as other departments, are bound by that instrument.
In the first paragraph of our initial founding document, Thomas Jefferson tells us why a new independent nation had to be formed. In the Declaration of Independence, Jefferson asserts that it is an outcome “which the Laws of Nature and Nature’s God entitle them”. In 1776, the significance of Natural Law was expressed in that founding document. The new country would be an achievement of Natural Law over whim. Jefferson’s dilemma, indeed the dilemma of the founders of the country, was that the economic engine that powered the new nation was tied to an evil institution which could not be justified under any notion of Natural law. Natural Law required an end to the pernicious notion that a person could be born a slave, live his whole life as a slave, have children that were owned at birth, and then die a slave, repeated again for generation after generation. Such a concept could not be more in opposition to the requirements of the Natural Law which the founders purported to be the driving force behind the creation of the new nation, arguably the main reason that the nation came into existence at all. In Marbury v. Madison, the great hack Chief Justice John Marshall abandoned the notion of Natural Law, and decided that the Constitution would be our bible, not the immutable laws of Nature’s God. Original Intent and Originalism are the religions that worship this false god. It is no wonder then that the worship of the laws of men did what they always do, they led to contradiction and strife, slavery and war, slavery and war, slavery and war.
 Professor Finkelman generously provided me with material from his upcoming publication. He provided much inspiration for this piece in his seminar given for the New Jersey Institute of Continuing Legal Education.
 Alfred W. Blumrosen and Ruth G. Blumrosen, Slave Nation, How Slavery United the Colonies & Sparked the American Revolution (Sourcebooks Inc., Naperville Illinois 2005).