Category Archives: slavery

The Great Hack Chief Justice John Marshall

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.”

Robbie Robertson

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[1], 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.  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[2], 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

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.

[1] 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.

[2] Alfred W. Blumrosen and Ruth G. Blumrosen, Slave Nation, How Slavery United the Colonies & Sparked the American Revolution (Sourcebooks Inc., Naperville Illinois 2005).

Chapter 3- King of the Circle

Chapter 3


Missus Catherine told me to try writing about the things I like best so here I am writing about circling. Circling is the game we play together with all the boys who are around after church. Every Sunday after taking care of the horses and going to Church the Reverend lets us do whatever we want. Sometimes we go fishing. Sometimes we go in the woods and try to catch us some squirrels, but the thing I like most is when we play games. And the game I likes most is called circling. In circling, we all stand around in a circle and instead of using a name we all give ourselves numbers from one to the last number. So if there are eleven of us the last number is eleven. One time we had twenty two but that was when we had a lot of people visiting the Reverend from England. Somebody calls out two numbers and the two boys with those numbers go in the circle and try to throw the other boy out. When they call out your number you would go in the center of the circle and try to become king of the circle. To stay king you had to throw everybody else out. So when I get in the circle I call out numbers and that boy would step in the circle until I threw him out. Then I would just call out another number and the same thing would happen. I got so good at the game that nobody would call out my number. Sometimes a big kid would be playing and everyone would yell to call my number but if he did it he would be sorry. So one day I got this great idea and when I finally got in the circle I called out “seven and nine”. Nobody had ever called out two numbers before. I threw both boys out of the circle. So I called out “two four eight” and the three boys got thrown out of the circle. So I calls out “one three six seven ten eleven” and those boys tried to get me to lose but I was the one who was left standing and I was still king of the circle. So I call out “Everyone! And when everyone came at me I dove to the ground and everyone dove on top of me. Everyone in the pile of boys was laughing and shrieking. We had so much fun.

“Bill your story about circling is a little confusing but we can work on that. Let me ask you something. Do you know what the date is?” Catherine asked after reading his story.

“Well I believe it is Tuesday cause this all happened the day before yesterday.”

“No, that is the day and yes, it is Tuesday as you say. But every day that ever was has a date that no other day ever had or ever will have again. There is a year that is based on the sun and the earth. The year starts when it is cold just after we celebrate Christmas and then it keeps going through winter and then the spring and then the summer and then the fall and when it gets cold again we start a new year. This year is 1774 which means that it was seventeen hundred and seventy-four years since the Lord Jesus Christ was born and told us the Good News about our salvation.”

“Wow, seventeen hundred and seventy-four years!” said Bill in amazement. “That is sure a long time for us to know such an important thing. You would think that we could do some things better given that we know about the Lord Jesus for all this time.”

“Well Bill,” Catherine went on. “The point I was making is that every time you write something you should put the date on it. That way when someone reads it they will know exactly when you wrote it.”

“But why would anyone care about the day I became king of the circle?” Bill responded. “Maybe if I did something great like won a war or caught the biggest fish ever I could see putting the date on it. But I don’t see why the date matters that a boy won a game of circling.”

“Still it is a good habit. We never know what is going to matter to important people when they read about it. When Columbus first came to America I doubt that anyone then thought it was of any particular importance but now we all study about it and know that he came to America in 1492. He wrote about it and now we study it and know exactly where he was and when he was there. We know that his Royal Highness King George III became the King of England on September 22, 1761. Everyone likes to know when something happened.”

“But that is just what I mean.” Bill thought out loud. “When someone becomes King of England that is an important thing. But when a child becomes king of the circle what difference would it make if it was seventeen hundred and seventy-four years after the birth of Christ or a hundred thousand years after the birth of Christ. It is just a game after all.”

Catherine’s voice grew insistent. “Still, today is May 17, 1774. The year is divided into twelve months and May is the fifth month. It is my favorite month because everything seems to bloom around here in May. Every month has thirty days except for some reason some months have thirty-one and February, the second month, has either twenty-eight or twenty-nine days depending on the year. Some smart men set it up that way so that everything happens the same time of year. If they did it any different, Christmas might be in the summer and Easter might be in the winter and that would just make no sense. So today is May 17, 1774 and I think you should put the date on top of anything that you write. Otherwise nobody will ever know when you wrote it.”

“Well I still don’t see why anyone cares that I wrote about being king of the circle on May 17, 1774, but if you say I should put the date on it, I will do it because you say. It still doesn’t make a whole lot of sense to me.

“Yes Bill,” Catherine said with a voice showing her little victory. “You do not know what will be important to people in the future. You will also learn that not everything makes sense. That you will learn for sure.”

Our Friends, the Scum

Spoiler alert: Graham Parker line of the day contained at the end.

I was watching one of those American History/book review channels that nobody ever watches and was amazed by a theory put forth by a History Professor Emeritus. It was her theory, and the HER being somewhat relevant, that all American History might be different but for the fact that Dolley Madison wanted to keep the slaves of James Madison after his death. She posited, on the flimsiest of evidence, that James Madison had a will that freed his slaves but Dolley destroyed that will in favor of an earlier will which was probated and did not free his slaves. It was Professor’s theory that had the Father of the Constitution freed his slaves, America would have grown into a better place and might have found a better solution to its national disgrace (my words…holocaust is better) and perhaps might have avoided its civil war. What bullshit!


On better evidence, I am a true Blumrosian, convinced that the American Revolution was fought specifically or at least partially for the very purpose of preserving slavery against the movement in England against the institution (see Slave Nation by Alfred and Ruth Blumrosen). The Declaration of Independence and Constitution reek of concern for the preservation of local law in the face of national concerns. Yet the Blumrosens, and my work applauding theirs, , has been held in universal contempt, only recently getting some grudging acceptance from some historians. In this context, the work of this Professor, who seems to actually blame a woman for the civil war, is just more avoidance of the truth of the matter…that some of the men who founded this nation…. specifically, Washington, Jefferson, Marshall, and Madison, were lying scum who never could acknowledge their blindness to the horrors that they perpetrated.


And one word about Dolley Madison. She was a straight shooter who acknowledged her privilege as a southern slave owner. She had her faults, but hypocrisy was not one of them. She did not cause the civil war, nor did she corrupt otherwise incorruptible men. We did not inherit her world, but we did inherit the world of the Founders and that affects us to this day. And speaking of scum… here is the Graham Parker line of the day. From Ambiguous on Don’t Ask Columbus…”and the meek shall inherit the earth from their friends the scum.”

The end of Marbury v. Madison (as we know it)


The End of Marbury v. Madison (as we know it)

“There’s nothing to hold on to, when gravity fails you and every kiss enslaves you…” Graham Parker


Does President Trump have to divest his assets? Is he subject to the emoluments clause? Does he have to disclose his tax returns? If you answered yes to any of these questions I think you are in for a rude awakening.

Ask most Americans which branch has the ultimate power to interpret the Constitution and they will answer that it is the Judicial Branch. Some will even suggest that the issue was settled by Chief Justice John Marshall in the case of Marbury v. Madison decided in 1800. Well, if that was my answer on my Constitutional Law exam, I think Professor Schwartz would have given me partial credit. Maybe a C.

First, as I am wont to do, I will point out that Marbury v. Madison was decided by a slaveholder (Marshall) for the benefit of slaveholders (President Jefferson and his Secretary of State James Madison). In the waning days of his administration, President John Adams tried to appoint officials to various positions including William Marbury as a Justice of the Peace in Washington DC. The fact that slavery was permitted steps away from the corridors of power in Washington was considered a blight on the government by the fledgling antislavery movement. Presumably, a Justice of the Peace who had no allegiance to slaveholders could have curtailed that great injustice. Slaveholders resisted the appointments. Through some mumbo jumbo, Chief Justice Marshall ruled in favor of the slaveholders and denied the commission to William Marbury, allowing Jefferson and Madison to appoint their own Justice of the Peace, presumably one who would agree with their political ends. The idea of judicial review was born here, in the decision by Marshall. It was a byproduct of the decision; the end justifying a means.

The Constitution sets up three branches of government. It spells out the relationship between the branches. The President appoints the Supreme Court justices with the advise and consent of the Senate. The Congress can impeach the President. etc. Nowhere in the Constitution does it provide that the Supreme Court is the final arbiter in disputes between the branches or as to the “constitutionality” of a piece of legislation or executive action. Depending on your viewpoint it is either ultimately logical or totally illogical that the branch that is furthest away from the direct selection by the People has this ultimate power. In any event, I suggest that Marbury v. Madison and judicial review is not the settled law that many think it is. Perhaps it was just a self-serving power grab by one branch, subject to resistance by another.

So now President Trump faces a lawsuit which argues that he must divest his business holdings or he is in violation of the emoluments clause of the Constitution. It seems logical that as part of that lawsuit he will again be requested to turn over his tax returns. So what happens if he loses the case and then just says NO.

Such a response is not out of the question for this president. He can point to the Constitution and ask where it says that the Supreme Court has power over the executive branch. He can assert that the People have the ultimate power and the People elected him to do the job and don’t care about his business holdings. He can suggest that if Congress or the People don’t like him, their recourse is to impeach him. Despite musings to the contrary, this viewpoint is not without merit. Had I answered same to Professor Schwartz, I think I would have gotten an A.

As we ride through untested waters, I suggest that in a world where nothing is sacred, Marbury v. Madison may be the next ball to drop.

The Whoosit Club

Chapter 2




Frances Burrell was beyond excited to attend this particular meeting of the Whoosit Club. The Whoosit Club was a members only group of proper young ladies who one Sunday a month would meet at the Gentleman’s Club in Piccadilly. The Gentleman’s Club did not allow women to enter but for the afternoon of the first Sunday of every month when the ladies would have a speaker of interest. The selection committee prided itself on its choices from Prime Ministers to poets to artist to politicians. Some were quite famous but the real catches were the “up and coming but not yet famous” and it was quite prestigious for the speaker to be selected. The artists Thomas Gainsborough, Benjamin West, Joshua Reynolds and Angelika Kauffmann spoke there. As did notables including Dr. Samuel Johnson, Oliver Goldsmith, and Edmund Burke. It was no secret that by the 1770’s Ladies of the Whoosit Club had a political cause that they supported, the worldwide elimination of slavery and its most ugly sister, the slave trade. Granville Sharp, Hannah More and Charles Middleton all spoke eloquently there about its elimination. Lord Mansfield spoke of his recent decision in the Somersett Case, which declared slavery “odious” and against British Law, and the effect the decision might have on slave owners in America in a talk he entitled “Let justice be done though the heavens fall.”

Frances preferred not to attend alone and often cajoled her older sister to accompany her. The interests of the sisters Burrell had grown to be quite diverse. As young children they were inseparable, often spending the entire day together working in their garden at Langley Park or on their horses riding off together for hours. As they grew older, when they would ride Isabella habitually would break into a gallop and Frances could not keep up and found herself alone in the countryside of County Dunham until Isabella would return with some hurtful remark about how unadventurous Frances was. Frances took to spending hours grooming her horse and would decline to ride with Isabella. Now that their father accepted a seat on Parliament and the sisters moved to London, attending the Whoosit Club was about all they did together.  Isabella preferred hearing from the swashbucklers; the soldiers and explorers who talked of their wild adventures. Frances liked the thinkers whether they be poets or playwrights or philosophers or preachers. She liked the world of ideas and the people who debated them. It was they, according to Frances, who really moved the world forward. By this time in 1774, Isabella’s thoughts were somewhere else, contemplating her future as spouse of the second son of the Duke of Northumberland, a wedding already set for the couple to take place in 1775.

On this particular Sunday, the guest was an American poet named Phillis Wheatley. It was not Wheatley’s poetry that Frances looked forward to discuss, as she had not read any. It was the fact that Phillis Wheatley was a living breathing slave, who as a girl from Senegambia had been kidnapped and sold and was now owned by the Wheatley family in Boston Massachusetts. Now here in London Phillis Wheatley was trying to fulfill the wishes of her mistress and drum up support for the potential sale of a book of her poems. She had a few things going for her. The London literati truly liked her work, though they were divided as to whether her naiveté was endearing or clumsy. But even more to her benefit was the politics of it all. The antislavery movement was fledgling; mostly a thought among some well to do that England had committed great sins in profiting from the slave trade and in establishing colonies in the Americas that were dependent on slavery. Led by the Quakers, there was a new awareness that it was time to end such abominations and Frances wanted to be part of that movement. Frances had never met a slave before, the institution being historically disfavored in England, and she wanted to see what a cultured slave looked like, although she would have been just as impressed to meet an illiterate working slave.

When the subject of a Whoosit Club meeting had to do with slavery, the meeting was run by the Quaker women who were an important part of the group. These ladies insisted that the meeting be run somewhat in the style of a Quaker meeting. The group would gather in silence and not a word was to be spoken until the leader commenced the gathering, which could take anywhere from a few minutes to an hour, which was an interminable time to sit quietly for poor Isabella who did not want to be there at all.  Phillis Wheatley sat facing the club members, sitting with Elizabeth Corman, the Quaker lady running this meeting. The members of the Whoosit Club used the silence to look over Phillis Wheatley, who was a little bit of a thing. She looked younger than her nineteen years and when the silence broke she told her story, explaining to the gathering of mostly wealthy women that she was saved from the toil that most slaves had to endure by her sheer luck. She happened to end up in the house of a Boston tea merchant who had an intelligent worldly daughter named Mary Wheatley who loved poetry and read it aloud whenever she could. As a young child Phillis Wheatley would hear the wondrous words of William Shakespeare and John Milton and would recite portions of their work aloud herself from memory. Secret, at first, but then openly, Mary taught the slave first to read and then to write and then to write poetry. By age sixteen Phillis had written much poetry in English and some in Latin to the amazement of many in Boston. She was encouraged by her mistress Susanna Wheatley to write poetry although when she attempted to sell her work many in Boston labelled her a fraud, arguing that it was impossible that a dark girl from Africa had the ability to write such things. “It must have been the mistress’s words”, so many would say that a trial was held in Boston and Phillis acquitted herself well with her poetry on demand. At the trial, John Hancock, the lead judge, requested a few lines about spring and Phillis Wheatley wrote:

In vain the feather’d warblers sing

In vain the gardens bloom

And on the bosom of the spring

Breathes out her sweet perfumes.


That was good enough for the eighteen gentlemen of Boston who signed off on her authorship although it was unclear if they adjudged that there was any value to her work.

Frances Burrell was mesmerized by this little woman. Seventeen years old herself, Frances too had dabbled in poetry but knew in her heart she lacked the finesse of the young slave girl. But her questions that day were not about poetry, they were about life.

“Where did you get the name Phillis Wheatley from?” Frances asked.

“Wheatley is the family name of those that own me now and they have owned me since I was but a child.” Phillis responded.

“What about Phillis?” Frances continued. “Is that a common name amongst your people?”

“Phillis was the name of a boat”, Phillis Wheatley continued. “It was the boat that brought me from Africa to America.” Phillis Wheatley said this so matter-of-factly that its significance was lost to many in the room.

“The boat that brought you from Africa to America?” Frances continued. “You mean that today you bear the name of the slave ship that took you from your native land to the colonies.” There were gasps from the ladies of the Whoosit Club

“That is correct m’lady”, Phillis said. “On that ship the woman to my left died at sea as did the child to my right. I told them that I would never forget them and I never have. Were I to write this book it will surely be dedicated to them and all the others of similar fate.”

“Yet your poetry is full of grace and love, not bitterness and hate. If it was me I would not be able to write what you do, that I can say for certain.”

“M’Lady”, Phillis engaged. “Here we sit in London England a long way from the suffering of so many. The fine things that surround us here may hide the blood that runs through them, and they are beautiful things nonetheless. I am thankful every day for my life and that I have come to know the Lord Jesus Christ as you have. Whether I am free or a slave today would not have saved that woman or child. I am not here to save them or even to save myself, I am here to do what I was sent to do, which is to recite my poetry.”

An older woman in fine clothing spoke next. “Miss Wheatley, there are men among us in London who can bring your circumstance to the courts who will surely declare you to be free. No woman with a Christian soul such as yours was meant to be a slave. We have successfully petitioned our courts on behalf of others to acknowledge the value of a Christian soul. We stand ready to act on your behalf.”

“I thank you madam for the kind offer and thank you all for the chance for you to hear my poems. I am afraid I must return to my home at the soonest that I can. I received a message just today that my mistress Susanna Wheatley has taken ill and has asked for my return. I wish nothing more than to return to Boston forthwith.”

“Even if that means your return to slavery? How can this be?” Frances blurted.

“M’Lady”, Phillis Wheatley looked at Frances Burrell with a stare that she would never forget. “You and I are both quite young and many adventures await us. I do not fault you for the comforts you admire. Please do not fault me for the life I choose. I know hardships await and my fate will not be as yours. I have learned much in my youth and above it all I have learned that an easy life awaits no woman so I do not aspire to it. I am confident in my path.”

Frances did not know what to make of this woman. She could not stop thinking about Phillis Wheatley for days and weeks long after Phillis Wheatley took leave of England to return to Boston, her book never having been sold and some of her poems perhaps never having been written. Frances kept the book that was presented as a sample of the work. She could not know that Phillis Wheatley was soon a slave no more. Susanna Wheatley died before Phillis Wheatley arrived in Boston and freed Phillis Wheatley by her will. Still Boston was not kind to the freed slave and it is true that Phillis Wheatley never did have an easy life. Back in London, Frances bored Isabella for days with her constant talk of Phillis Wheatley, poetry, slavery and freedom. Isabella put it out of her head and was relieved to learn that the next meeting of the Whoosit Club was to feature Lord Clive, the great soldier who was to share the tales of his adventures to India and such other places.

Justice Scalia is dead…wrong

Justice Scalia is Dead…Wrong

I know what freedom is. I live in a country where I can write those provocative words on the day of the funeral of Justice Scalia and other than hearing a few groans nothing will happen to me. To some degree I have Justice Scalia to thank for that, as well as others in his line in the history of America, many of whom I disagree with. But that does not mean that I buy into their notion of the Constitution. Most of them are wrong…dead wrong.

The Declaration of Independence and the Constitution were writing assignments, largely undertaken by slave holders. One task was to set up a government conceived in “liberty” where about one fifth of the population would be slaves without mentioning the word “slave” or “slavery”. Done. Neither document concerned itself with any rights of women, doing so without mentioning the word “woman”. In 1776, Abigail Adams wrote to her husband…””Remember that all men would be tyrants if they could”. I do not recall her receiving an invitation to the love fests we call the continental congress or the constitutional convention. As I have previously stated in this series, the men who wrote these documents had their own problems to solve, and their results did not benefit the situation of others in their midst.

My particular concern here is for the “originalists” like Justice Scalia and the many dark suited disciples who follow him, who worship the text of the founding documents. The Dred Scott decision was decided by an “originalist” too, one who held that no person of African descent could ever be a citizen United States. That Justice, Justice Taney, understood that the founders were dividers, not uniters. Justice Taney understood that the founding documents that many hold sacred purposely set up different rights for different classes of people. “Originalists” are honoring that tradition.

James Madison, a slave holder of course, thought he solved a problem by setting up the three/fifths compromise in the Constitution. How can a slave can be a person for the parts of the Constitution that benefit Virginia, but not for other parts that benefit the person? It was similar to the solution of Thomas Jefferson in speaking of liberty and rights while owning slaves and thereby destroying the meaning of those words. These two actually perpetrated a hoax onto an unsuspecting America, and we today must still deal with the remnants of their handiwork. The Declaration of Independence and Constitution are more than founding documents, they embrace political philosophies where words are deprived of their common meaning. Women still do not have rights to control their lives under the constitution. That is “originalist”.  There remain many in this country who although are not slaves, have no realistic opportunity to partake of the American Dream. That is “originalist”. The beautiful land and beautiful people of this country continue to be stifled by documents that were not set up to benefit them, but only to benefit others.  That is “originalist”. The original “originalists” set up a system that made their government difficult to change. Let us try. Let us today move past originalism. There has to be something better.

The Great American Essay

The Great American Essay

By Jerry Leibowitz


fiat justitia, ruat coelom (translation in last paragraph)

Lord Mansfield, The Decision in Somerset’s Case, June 22, 1772[i]

America is false to the past, false to the present, and solemnly binds herself to be false to the future.

Frederick Douglass, 1852[ii]



The wealthy landowners of Virginia and other southern colonies were fat and happy in 1766. The attempt in Great Britain to get the colonists to pay for the defense of their western border through the Stamp Act of 1765 was repealed in 1766 leading the Virginia assembly to consider erecting a statue of thanks dedicated to King George III.[iii] Yet by 1775, much of the south was ready to participate with the perennially dissatisfied northern colonists in the American Revolution. What happened in the south between 1766 and 1775 to cause the privileged class of the southern colonies to become revolutionaries? It must have been something quite serious for these men to risk their lives and consider revolting against the source of their wealth and power. It was. Fomenting in 1772, there was an insidious threat to their way of life brewing in the mother country and colonial self-rule seemed the only way to stop it. In a place and time which we think of as bursting with a desire for freedom, much of what was done was done to preserve the institution of slavery.

Any study of the American Revolution which does not mention the British High Court decision in Somerset’s Case in 1772 is not a history at all, but a perpetrated fiction with footnotes. Arguably, it is as a result of the decision in Somerset’s case that the American “war for independence” was fought.[iv] In the decision, the highest court in Great Britain ruled the obvious; that slavery was an odious institution inconsistent with enlightened British and natural law. As a result of the decision, any American slave who made his or her way to England, even under a master’s control, could not be forced back to enslavement in America. Since under British common law men were by nature “free”, it was argued that the owning of a slave was the equivalent of kidnapping, assault, and false imprisonment.[v] According to the restrained decision, such an odious act against natural law could only be legal in England if there were a positive law permitting it to exist. But there was no such positive law in all of Britain, nor does it seem possible that such a law could have been consistent with the British notion of the rights of man that had developed by the mid-18th century.[vi] The institution of slavery, so widespread in the Americas had come to be seen by many in England as a relic of a barbarous past.[vii] Although the decision in Somerset’s case only applied to those slaves who found a way to the soil of England, American slave owners in the British Colonies understood that, as British citizens, their time to own another human as property could be nearing its end. Their solution was not to reconsider the institution of slavery in any meaningful way, but instead to break the ties with the country that threatened their lifestyle.  It was the Americans who, while spouting about freedom, were on the wrong side of history, at least as to the issue of slavery.

Although the American colonists in the north and the south were motivated by a different set of grievances against Great Britain, by the time of the outbreak of the American Revolution in 1775 they were united in their desire for self-determination and freedom from the constraints imposed on them by distant rule. In the north, the grievances were largely mercantile, relating to unfair taxation and the restraint of trade. History has chosen to attribute the call to war largely to these grievances.[viii] But in the south, after the ill-conceived Stamp Act of 1765 which was repealed in 1766, British rule was largely unobtrusive if not beneficial. Many white southerners enjoyed a superior quality of life, hardly the life that makes one think of revolution.[ix] Were it not for the threat to slavery posed by the decision in Somerset’s’ case in 1772, it seems inconceivable that there would have been a move towards radicalism and independence. In the south it was understood that any threat to the institution of slavery was a threat to their entire way of life.[x] To slave holders, independence from Great Britain meant the ability to decide for themselves the future of the legality of slavery. It meant the ability to pass positive laws consistent with their slave ownership, a degree of self-rule the colonists did not have under the cumbersome rules which did not allow colonial legislatures to institute law without approval of the king.[xi] Although the history of America from 1765 to 1789 seems to be consistent with the flow of history towards self-governance and the advancement of human rights, at least as to the issue of slavery it can be seen as a victory in the perpetration of a repressive government.[xii]

The decision in Somerset’s Case should not need to be recounted here as if it is news. Clearly it falls outside the narrative taught to every school child which proffers only those events which trace the good American colonists reasonably responding to oppressive foreign rule. Americans barely consider the horror of slavery that existed not long before our own times and is certainly still reverberating now. Slavery was a defining American institution at the time of revolution and continuing to the Civil War. Yet, those that do speak of the blot of slavery as an unforgivable and unpunished national crime are often accused of living in the past, even as their accusers celebrate and dwell over simultaneous events. As I am certainly among those who count as blessings the great things that our founding fathers handed down to us through their bold experiment in government, I am queasy. Is there not a true history that each American must individually come to grips with?

Slavery in America

By 1776, it is estimated that the population of the American colonies was 2,500,000, of whom 500,000 were slaves. Virginia alone had more than 200,000 slaves.[xiii] The population of South Carolina was mostly slave, in some areas approaching approximately four/fifths slaves. With the institution of a new government friendly to the slave holder, by the start of the Civil War in 1860, the number of slaves in America reached approximately 4 million. These numbers must lead to a contemplation of the moral foundation of this new government and its supposed commitment to freedom.

Slavery was a barbaric institution and slave holders knew it to be such. That the institution was of questionable legality was made quite clear to them by the decision in Somerset’s case in 1772.[xiv] Whether slavery in the colonies was legal or not, cruel acts against slaves were technically illegal, yet largely unpunished. There is little doubt that slave holders were not charged in numerous cases of murder, assault, child abuse, rape, and child endangerment against their slaves.[xv] Slaves were not permitted to be educated, legally marry, and were denied any right to maintain a family.[xvi] Many slaves were literally worked to death, so much so that South Carolina needed a continuous new supply of slaves to work the lowland.[xvii] Still, we really know little of the horrors that were perpetrated in the many pretty houses of both the south and the north. One can always find cherry picked statements quoted by a series of apologists intending to prove that the founding fathers who were slave owners were good to their slaves, or wished for the end of slavery but at a future time.[xviii]  These were men who supposedly fought a revolution for the proposition that a human being must have a basic right of redress. I am an educated man and it is my sense that I learned little about slavery in America and I am convinced that this is an offense that has been done to me…with purpose.

Slavery in Great Britain

In England of the 18th century, there were various forms of indentured servitude, some quite barbaric. Yet, the idea that without cause and solely because of race a human being could be born a slave, live an entire lifetime as a slave, die a slave, and have children that were owned by their master and could be sold was foreign to Great Britain. By the mid-18th century London was a cosmopolitan city, where some free blacks found their place in the fabric of British life. At this time an aggressive anti- slavery movement developed in England around two issues; to eliminate the blot of slavery from the world focusing first on the proliferation of slavery in their own British colonies and, as an interim step, to eliminate British participation in the African slave trade.[xix] At least as to the elimination of the African slave trade there was some support even among slave owners in Virginia, who were now producing surplus slaves for the domestic slave market and had economic reasons for their seemingly altruistic position.[xx]

Despite the fact that slavery was not a recognized institution in England, American slave owners, being British citizens, had a nasty habit of bringing their slaves with them when they were conducting business in England.[xxi] In England, they treated their slaves as property in the same manner as they did in America and expected their contacts in England to do likewise. This naturally agitated the black population of England as well as many British citizens who were appalled by this conduct and by their implicit participation. By what right, they would ask, could one human own another anywhere, especially on the sacred soil of England? The Americans appeared to be confused since their conduct raised no questions in their homeland which was thought to be controlled by the same law. By 1772, both sides wanted the British courts to decide the legality of the practice of maintaining slaves while in England, presumably because they each were certain that their view of the issue would be upheld.

When the case was decided in favor of and freed the slave James Somerset, many were convinced the case would have limited import.[xxii] At most, it offered freedom only to that small number of slaves who were physically brought to England. It did not affect the right of British subjects to contract to buy or sell slaves. The Somerset decision did nothing to affect the participation of British subjects in the slave trade which was not made illegal until an act of Parliament in 1807.[xxiii] Slavery was not abolished in all the British colonies until the passage of Parliamentary acts beginning in 1833.[xxiv] Still, the decision was published in America and discussed in both the north and the south, by slave owners and slaves alike.[xxv] By 1773, with the situation in Massachusetts heading toward conflict over other issues, the decision in Somerset’s case, although having no effect as a matter of law in America, naturally could be interpreted in the south as an attack on a vital American institution. The south could not countenance this incursion, and the north was looking for friends or at least enemies of their enemies.


Patrick Henry (1736-1799)

Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death![xxvi]

It must not have been easy to publicly declare one’s treason at a time when the question of American independence was yet unresolved. It was a capital offense.[xxvii] Patrick Henry clearly understood the value of freedom and in his rhetoric, at least, he places its value above the value of life itself. He risked his life by uttering those famous words.  Yet, as a slave owner, his use of the imagery of slavery in the speech as a metaphor for lesser inconveniences is truly abominable. It is simply bad rhetoric. Throwing God in there only makes it worse. There is a sickness to this speech, a sickness that seemed to pervade Virginian society in the mid 1770’s.

Patrick Henry was an ambitious Virginian who, as a young man, owned little land and few slaves. Much of Virginia’s tilled soil was dedicated to raising tobacco and suffered from mineral depletion due to the specific needs of that crop. Henry’s growing brood would eventually reach 18 children. Like many who were part of Virginia’s ruling planter class, his solution was to acquire new untilled lands. As uncultivated land to the west remained cheap although difficult to tame, the more a landowner was willing to exploit slave labor, the more land he could acquire and use productively. Henry acquired more slaves as he acquired more land.[xxviii]

Patrick Henry had the gift of oration which he eloquently used in 1765 as a new member of the Virginia House of Burgesses successfully speaking in favor of the repeal of the Stamp Act.[xxix] Although remaining as a legislator, neither he nor many in Virginia showed significant signs of dissatisfaction with Great Britain and certainly no revolutionary intent between 1766 and 1772. Biographers of Henry who fail to understand the significance of the decision in Somerset’s case in 1772, seem to be at a loss to explain the new found revolutionary spirit that seem to grip all of Virginia by 1773.[xxx] By the time Patrick Henry gave his most famous speech at the dawn of revolution in March 1775, the war was inevitable as was the leading role of Virginians. There were mercantile concerns relating to British rule in Virginia but, unlike in the northern colonies, these were largely mere inconveniences as the colony was growing ever wealthier largely due to its efficient use of slave labor and its sale of surplus slaves.  I submit that it could only be the real threat to the institution of slavery, embedded in the Somerset decision of 1772, which propelled this wealthy colony towards Revolution.[xxxi] One reason now given for Virginia’s move towards revolution was the proclamation by Lord Dunmore, the British Governor of Virginia, which promised freedom to slaves who fought on behalf of the British. But this proclamation was not issued until November 1775, after the Revolution had begun and months after Henry’s speech. While important in galvanizing some Virginians to war, it simply could not be a cause of the discontent in Virginia by 1775.[xxxii]

The best minds of Virginia were incapable of dealing with the reality of slavery.[xxxiii] The whole social system of a large part of the country was based on it. An economic system both in the south and in the north was fueled by it. In addition, the colonists thought they had real concerns should their foray into independence include freedom for their slaves. Where were the slaves going to go if they were suddenly pronounced free?[xxxiv] What was to stop freed slaves from murdering their former owners who, perhaps according to the decision in Somerset’s case, were now exposed as mere kidnappers? Perhaps the former slaves would try to steal their land.[xxxv] At the very least the cheap labor that fueled the economy would vanish. It was unimaginable to these men that a court thousands of miles away could know so little about their circumstances as to suggest that it was going to upend a social and economic institution that was clearly the engine of a productive society.

In his famous speech Henry demonstrated that he knew that it was evil it was for a person to be deprived of freedom. When considering the apparent contradiction between his freedom and the quest of his slaves for freedom he would join many of his times who would blame past generations of British rule.[xxxvi]  In reality, the contradiction could not be resolved because, to Henry and other white Virginians, freedom included the right to own slaves. This was obviously inconsistent with a slave’s right to be free. In his speech, Henry pledged to fight for his freedom but could not advocate for the freedom of others, and worse, took part in their enslavement. He was not just a bystander who was born into a corrupt system and did nothing to change it. There is compelling evidence that Patrick Henry saw the Virginia state militia first as a slave patrol and only subsequently as a revolutionary army.[xxxvii] Whatever one feels about his personal predicament, there should be a general consensus that the use of slavery as a metaphor in this speech is an abomination. It should only be repeated in classes on hypocrisy and bad oration. The man who gave it spewed nonsense and then went back home to his 60 to 80 slaves.

Thomas Jefferson (1743-1826)

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.[xxxviii]

It may be true that the issue of slavery plagued enlightened men like Thomas Jefferson. He was somewhat concerned about the plight of the slave and perhaps equally concerned with the depressing effect that slavery had on the industry of the slave holder.[xxxix] Yet, I suggest that much of early American History can be summed up by his simple observation…“For in a warm climate, no man will labour for himself who can make another labour for him.”[xl]  It has been said of Thomas Jefferson that in addition to tilling his fields, slaves…”cut his firewood, cooked and served his meals, washed and iron his linen, brushed his suits, nursed his children, cleaned, scrubbed, polished, and opened and closed doors for him, saddled his horse, turned down his bed, waited on him hand and foot from dawn to dusk…” [xli] His convenient solution to his dilemma over slavery was to first solve the problem of independence from England and leave the issue of slavery to be resolved at a future time.[xlii] Perhaps the less enlightened understood their situation better. To them, freedom from Great Britain in the 1770’s was the freedom to keep their slaves in light of the possible encroachment of British law.

In the years following the decision in Somerset’s case, Jefferson developed the philosophical underpinnings of his quest for independence. Perhaps he saw the decision as just another attempt by Great Britain to control the colonies and it furthered his purer motives towards revolution as a means towards self-government. More likely, as a slave owner and a member of the slave owning class who had no intention of living equally amongst freed slaves, his philosophies were influenced by his personal circumstance. That his world had been called odious by the supreme judge of his mother country must have contributed to his yearning to be free from such disrespect.[xliii]

Jefferson knew that his most infamous words as written in the Declaration of Independence were not true.[xliv] He owned numerous slaves and knew quite well that by any meaning of the words his slaves were not born equal to him, nor were they able to exercise their unalienable rights. As a slaveholder in a system designed to protect slaveholders, he knew that it was he who was alienating these unalienable rights, a failure of logic that he could never resolve.

Perhaps, as an architect, Jefferson understood that a government, like a building, can survive only if it built on solid rock in accordance with eternal principles of beauty and stability. He helped build a new government on those principles.[xlv] That is why the principle of equality he set forth in the Declaration of Independence has resonated throughout the ages despite the questionable nature of its inception.  Whether it is hypocrisy, self-delusion, or aspiration that motivated Jefferson is immaterial; the declaration of equality is a worthy embodiment of ideals from a flawed messenger.

As we return to Jefferson the man, we find him as despicable as the rest of us. I join with those who cannot give him a pass for owning slaves, the more so because he, like Patrick Henry, continually showed that he knew better.[xlvi] Like Henry, Jefferson often used slavery as a metaphor to describe his predicament as an aggrieved (though quite wealthy) British subject.[xlvii] Never in all his musings about the end of slavery did he perceive of a multi-cultural America; his plan was for ultimate freedom and deportation of a race that he perceived was not capable of participating in his view of a civilized society.[xlviii] That he was a product of his time is inexcusable because, perhaps by definition, great men find a way to be better than their times. He was a vital and integral part of an evil system that continued long after it should have and ended badly if one can say that it truly ended at all. While as a person I leave him in the mud, as a political theorist I give him his due. He wrote great truths which continue to inspire the best of us to do our best work. Then he went home to his approximately two hundred slaves.[xlix]

John Adams (1735-1826)

I constantly said in former times to the Southern gentlemen, I cannot comprehend the object; I must leave it to you. I will vote for forcing no measure against your judgments.[l]

History places John Adams in that group of colonists who did not own slaves or directly profit from slavery, and who personally abhorred the institution.[li] Yet the early history of the United States is replete with deals made by Adams to hold the union together on the backs of the toil of slaves. In virtually every important decision made in the cause of revolution and the establishment of a new country the slave holders wanted one thing…a path to insure that slavery would exist unfettered in the new country.  Adams had to compromise on only the one issue to move the cause of revolution forward. He is often credited with being the political force that kept the union together. Sometimes there is no line between politics and appeasement. There is little doubt that the Adams compromises on slavery enabled the institution to survive in the new country. While many in ignorance suggest that were it not for these compromises America, today, would live under British rule, there is no consensus on what would have happened had John Adams done the right thing.

In what became known as the first Continental Congress in 1774, it was John Adams from Massachusetts who sought allies in the cause of revolution from the Virginia delegation.[lii] There he authored the Declaration of Rights and Grievances which first put forth the notion that a Colonial legislative body had exclusive control over its internal policies. Although seemingly about taxation and trade, the Southern delegations must have been satisfied that their interests in regard to slavery were to be protected because slavery would be treated as a local, not a national issue.[liii] With southerners concerned about the ramifications of the recently decided Somerset case, the first resolution of the Continental Congress in regard to the colonists must have been comforting…

They are entitled to life, liberty and property, and they have never ceded to any sovereign power whatever, a right to dispose of either without their consent.[liv]

In the Second Continental Congress in 1776, it was John Adams who put forth a resolution that indicated that all states should draft new and independent constitutions.  He saw this as a vital step towards self-government.[lv] It could now be seen as permission for a state to create the positive law permitting slavery anticipated by the decision in Somerset’s case as the only way that the institution of slavery could logically exist in a “free” society. While objecting, Adams agreed to the removal of any mention of the evils of the slave trade from the Declaration of Independence, supposedly due to objections from Georgia and South Carolina.[lvi] In negotiating the Treaty of Paris in 1783, Adams along with Benjamin Franklin signed off on the provision that required the British to return to America all former slaves brought to England and freedom by returning British soldiers. This provision in the treaty was in direct conflict with their freedom granted in the Somerset decision, a conflict which was never resolved legally. Despite the efforts of slaveholders, including George Washington, enforcement of this provision proved difficult in England and there is little evidence that many former slaves were “repatriated” as a result of this provision.

It is likely that a plan to eliminate slavery in America could have been forged by the founding fathers had Adams been so inclined. Perhaps South Carolina and Georgia would have balked and may have sat out the war. The reality was that there was nowhere for them to go. Even Virginia, the richest colony with the most to lose, faced a Hobson’s choice. By 1776, the British people and their government demonstrated greater anti-slavery sentiment than most Americans, who displayed little such inclination. The anti-slavery sentiment had now been expressed in the strongest terms by the British high court in the decision in Somerset’s case.  A unity of the southern colonies with Britain over the issue of slavery was increasingly impossible. Had a date certain been set for the elimination of slavery in America when it was discussed in 1776, and a reasonable plan been forged to resolve the issue, it is possible that the union would have held and the revolution would have proceeded.[lvii] There may have even been a ready supply of black soldiers yearning for freedom to aid the cause. It is impossible to say what would have happened to the Union had any real effort been made to deal with the issue of slavery in 1776. Clearly, the southerners wanted none of it and Adams did not care to see the bluff. Perhaps he even knew that the fear of the Britain anti-slavery movement would keep the south fighting in his revolution. Supposedly, Adams and Jefferson were comfortable with the idea that eventually the country would have to address the issue and abolish slavery. That did not happen for 85 years. That the Adams compromises lead to a country founded on hypocritical principles will always plague America. That the country treated its hardest workers as an enemy and their oppressors as its heroes remains a constant limiting factor in its present advance towards a more perfect union. That no person more than John Adams brought about this historic calamity is just sad. Perhaps his greatest achievement was not his participation in the creation of a flawed government, but in his nurturing of the great John Quincy Adams, a founding father who worked tirelessly towards the end of the scourge of slavery.


George Washington (1732-1799)

Who among us has the right to throw stones at this man? George Washington is perhaps the most revered man in the history of America and perhaps with many good reasons. There is little doubt that through his personality, he kept the spirit of the Revolution alive at its most perilous times. On the issue of his motivations and his approach to slavery, there is a mixed account. There is evidence that he treated his many slaves well and contrary evidence that he had them whipped for being unproductive. There is evidence that he grew to see that slavery must be abolished and contrary indications that he rarely thought of abolition and only thought to free his own slaves upon his death because they were too numerous for his land and were growing old and expensive to maintain.[lviii] It would be simplistic to assert that he bore the contradictions of the age and leave it at that. I reach the conclusion that he was the ultimate conservative…his fight was to keep a lifestyle that had served him well and, given the decision in Somerset’s case,  his ends could only be accomplished by freeing the colonies from the threat of British incursion into the institution of slavery and leaving it to Americans to address the issue. Unlike an intellectual like Jefferson, Washington was a pragmatic and decidedly earthly leader who, not surprisingly given his social status, cast his lot with the survival of the slave state. He too was not an innocent bystander who was born into a corrupt system and did nothing to change it. Washington, as president, personally took up the cause of slave owners in their startling pursuit of compensation or return of those former slaves who made it to freedom in England, and were arguably compelled to return to their masters in America under the terms of the Treaty of Paris.[lix] Perhaps the saddest thing I can say about all of American History is that I doubt that the wealthy and respected George Washington would have even contemplated revolution were it not for the threat to slavery in the Somerset decision.  Through the force of his personality he helped create a country out of nothing and then went home to approximately 200 slaves.[lx]


By the time of the drafting and ratification of the Constitution, the proponents of legal slavery in America had already succeeded in guaranteeing that the institution would survive intact in the new country. During the ratification process, the issue of slavery arose as did many other issues, and it was the subject of a political solution just as all other issues. How so many great minds could let that happen will always be a mystery to me.

While many students of history are familiar with the horrible compromise in Article One that decreed that for purposes of taxation and representation a slave was to be counted as three fifths of a person, there has been less focus on the even more despicable provision in the constitution that was a specific response to the decision in Somerset’s case. Slave owners in the new country understood that if their slaves escaped to England they would become free pursuant to the decision in Somerset’s case. The same would essentially occur if the slave escaped to the largely ungoverned west, or to Canada.  The Southern states needed assurance that their slaves would not become free merely by escaping to a nearby state which abolished slavery, as Massachusetts had by 1783. Article Four Section Two of the Constitution of the United States, the first national Fugitive Slave Law, provided that assurance. Without a Constitutional Amendment, which did not occur until 1865, all citizens of the United States were bound to honor the rights of slave holders, even in states that might find the institution “odious”.  In essence then, a state could not make slavery illegal within its borders since the Constitution provided that a slave from another state within its borders would still be a slave and be subject to capture and return. Thus, by 1787, although the new country had based much of its system of laws on those of its former mother country, the decision in Somerset’s case had been blotted out of existence in American jurisprudence.


It has been noted that Jefferson built up and tore down his architectural masterwork at Monticello continually through his adult life. So too must we tinker with his other masterwork, the government of the United States. We have become a country with two histories, the revisionist one taught in our schools and the real history which reflects our gritty barbaric past.  It is often said that history shows that the arc of the moral universe is long and it bends towards justice.[lxi] I am not so sure. The sensible decision of the British High court in Somerset’s case existed for 15 years when the United States Constitution denied it as law for the new country.  The decision existed for 82 years when the United States Supreme Court issued the contrary repulsive Dred Scott decision.[lxii] It is not new for me to say that the human heart is capable of producing both good and evil. My study of history leads me to the inescapable conclusion that it always will.  I submit that the search for historic truth today is no less important to the soul of our nation than the quest for freedom was at our founding. The big problem perhaps is to discern a way to arm oneself with an accurate compass and the correct slingshot. Only then is it possible to continue the work that Lord Mansfield started with his fateful warning in the Somerset decision “…. fiat justitia, ruat coelum,” let justice be done, though the heavens fall.”


[i]See Alfred W. Blumrosen and Ruth G. Blumrosen, Slave Nation, How Slavery United the Colonies & Sparked the American Revolution (Sourcebooks Inc., Naperville Illinois 2005) 9. I note that an actual text of the decision may not exist.

[ii] Extract from an oration at Rochester, New York July 5, 1852.

[iii] See website accessed 10/27/13…

[iv] Slave Nation, cited above, which explores the impact of the Somerset decision may be considered a work of revisionist history. I consider it perhaps the first book about American History which makes sense. Perhaps the books which fail to mention Somerset’s Case are revisionist history. Reporting the truth is not a race to see who reports first. Most references to the Somerset decision and its impact are taken from Slave Nation unless otherwise cited.

[v] Blumrosen and Blumrosen, 9.

[vi] After the Somerset decision, slave owners petitioned Parliament to pass a positive law legalizing slavery. It declined to do so. Blumrosen and Blumrosen, 12. See also Alan Taylor, The Internal Enemy, Slavery and War in Virginia, 1772-1832, (W.W. Norton & Company New York 2013) 21.

[vii] Bernard Bailyn, The Barbarous Years (Alfred A. Knopf New York 2012) 174-179.

[viii] Taylor, 22.

[ix] See Richard R. Beeman, Patrick Henry, A Biography (McGraw-Hill Book Company New York 1974) 33-49, 83.

[x] Beeman 69.

[xi] See Blumrosen and Blumrosen 21.

[xii] See Taylor 21.

[xiii] David McCullough, John Adams (Simon & Schuster, New York 2001)131.

[xiv] That Americans read and knew the significance of the decision is well documented in Blumrosen and Blumrosen, 33-55. See also, Taylor 21.

[xv] The slave narratives written both before and after Emancipation are perhaps the best firsthand evidence of the true horrors of slavery. The most well-known of these is the autobiographical Narrative of the Life of Frederick Douglass, An American Slave (1845). As brutal as his Narratives are, Douglass admits to pulling some punches to protect himself as he was a fugitive slave at the time of publication. The narratives were written by men and thematically deal with the subrogation and reclamation of manhood. The special concerns of female slaves remain unimaginable. See Introduction to the Signature Edition of the Narrative of the Life of Frederick Douglass, Dale Edwyna Smith (Barnes & Noble New York 2012).

[xvi] In his Narrative and later speeches and writings, Douglass came back to this theme numerous times. Without deemphasizing the oppression of the whip, Douglass continually argued that some horrors of slavery were more subtle but no less the result of abject cruelty.

[xvii] Blumrosen and Blumrosen 46.

[xviii] See Beeman 95. See also Thomas Jefferson’s Monticello website; accessed 9/9/2013.

[xix] Blumrosen and Blumrosen 4-5.

[xx] Blumrosen and Blumrosen 46. Taylor 22.

[xxi] Blumrosen and Blumrosen 3.

[xxii] Benjamin Franklin suggested that the decision freed one slave. Blumrosen and Blumrosen, 12-13.

[xxiii] Marika Sherwood, Britain, Slavery and the trade in enslaved Africans, Issue 12 of History in Focus, Institute of Historical Research of the University of London. Website accessed 9/3/2013 …

[xxiv] Ibid.

[xxv] Blumrosen and Blumrosen 24. See also William C. Nell, The Colored Patriots of the American Revolution (Robert F. Wallcut, Boston 1855) as reprinted in The American Negro His History and Literature, Edited by William Loren Katz (Arno Press and the New York Times, New York 1968) 42.

[xxvi] Patrick Henry’s speech to the Virginia House of Burgesses, March 23, 1775. The precise words may be in doubt but not the power of the oratory. See Richard R. Beeman, Patrick Henry, A Biography (McGraw-Hill Book Company New York 1974) 66.

[xxvii] It should be noted that as a major participant in the first Continental Congress in 1774 Henry was already subject to conviction of a capital offense. Harlow Giles Unger, Lion of Liberty, Patrick Henry and the Call to a New Nation (Da Capo Press Philadelphia 2010) 94-95.

[xxviii] Unger 7, Beeman 26-28. See also Taylor 48.

[xxix] Beeman 35-37.

[xxx] Beeman 83. See also Blumrosen and Blumrosen 21.

[xxxi] I submit that as to this subject Slave Nation should be required reading.

[xxxii] See Taylor 23-24.

[xxxiii] As to Henry, see Unger 53.

[xxxiv] See The Editors of Newsweek Books, The Founding Fathers, Thomas Jefferson, A Biography in his Own Words, (Harper & row, New York 1974) 79. See also Roger G. Kennedy, Mr. Jefferson’s Lost Cause (Oxford University Press, New York 2003) 116-117.

[xxxv] Unger 51-53.Taylor 42.

[xxxvi] Unger 51.

[xxxvii] See Carl T. Bogus, The Hidden History of the Second Amendment, University of California at Davis Law Review, 31(1998): 309 at 335-338.

[xxxviii] The Declaration of Independence.

[xxxix] Editors of Newsweek 78, 79.

[xl] Editors of Newsweek 78.

[xli] David McCullough, John Adams (Simon & Schuster, New York 2001) 116.

[xlii] See Editors of Newsweek 79, 80.

[xliii] See Blumrosen and Blumrosen 30-32.

[xliv] It has been suggested that the word “created” was chosen over the word “born” to suggest that Jefferson was formulating a scientific or philosophical approach to the issue of race. It is lost on me. See Daniel J. Boorstin, The Lost World of Thomas Jefferson (University of Chicago Press, Chicago 1948, Third Edition 1993) 61. The better treatment of this issue is found in Blumrosen and Blumrosen at 137-139.

[xlv] See Roger G. Kennedy, Mr. Jefferson’s Lost Cause (Oxford University Press, New York 2003) 38, 39.

[xlvi] Boorstin concludes that Jefferson “played fast and loose with the concepts on which he built his own science”, 94, 97.

[xlvii] The Editors of Newsweek Books, The Founding Fathers, Thomas Jefferson, A Biography in his Own Words, (Harper & row, New York 1974) 49

[xlviii] Kennedy 116, Editors of Newsweek, 79. Taylor 42.

[xlix] Thomas Jefferson’s Monticello website; accessed 9/9/2013. See also McCullough131.

[l] Letter from John Adams to Thomas Jefferson, 1821. See Joseph J. Ellis, Passionate Sage, The Character and Legacy of John Adams (W. W. Norton & Company, Inc. New York 1993) 138.

[li] McCullough 131.

[lii] Joseph J. Ellis, Passionate Sage, The Character and Legacy of John Adams (W. W. Norton & Company, Inc. New York 1993) 39.

[liii] After Virginia declared independence from England in 1776, it addressed the issue by defining “the black population right out of the body politic.” Beeman 102.

[liv] It is often noted that the concerns of the first Continental Congress are largely a restatement of the grievances set forth by the Stamp Act Congress in 1766. This is not true. While many concerns were the same, this provision is new.

[lv] Ellis, 65

[lvi] McCullough 134. Editors of Newsweek, 65.

[lvii] See Beeman 102.

[lviii] Most every biographer of Washington has a theory of his personal and political views on slavery. I suspect that he was more lenient than most but stories persist of cruelty to slaves at Mount Vernon, and that his replaced teeth were extracted from his slaves. For a general view see Chernow, Washington, A Life, and (Penguin Press New York 2010) 110-117.

[lix] See Chernow, 639; and James MacGregor Burns and Susan Dunn, George Washington, The American Presidents, Arthur M. Schlesinger, General Editor (Times Books, Henry Holt and Company, New York 2004). 109-110.

[lx] McCullough 131. See also Henry Louis Gates, Jr. George Washington’s Runaway Slave, Harry, posted on The Root; website accessed Oct, 26, 2013.

[lxi] Attributed to Dr. Martin Luther King, Jr., 1967 possibly originating with abolitionist Theodore Parker. See website…

[lxii] Scott v. Sandford – 60 U.S. 393 (1856).

Not White, Not Black…Purple

Not White, Not Black…Purple

“I spent my year on the roof staring up at the stars, Wondering if I was from mars…”

                                                                                                                         Graham Parker

As a supposed white guy who has been forever working on a novel with the tentative title of I AM BILL RICHMOND about America’s first black sport superstar, I feel somewhat qualified to comment about the current issue of racial identity in America. This issue reminds me of a friend I had in High School too many years ago who would insist that inside her heart she was not white, nor black, but more like purple.

I see three kinds of Americans. The largest group I will call the Copacetics. Most white Americans and many recent immigrants fall into this group. The Copacetics basically like America and like the world. They view America as the land of opportunity where with hard work anyone can attain their piece of the American Dream. They trust in the founding fathers and especially in the Constitution and when something in America needs fixing they see in her structure the political means to affect change. Their heroes include Washington, Adams and especially Jefferson. They’re motto is from Jefferson who provided that our government was and continues to be the guarantor of “life, liberty and the pursuit of happiness.”

The second group are the Destructivists. Although they profess to be political reformers they are really anarchists who would never be satisfied with any political system that does not cater to each of their individual whims. They come on both sides of the political spectrum, from tea partyers and religious fanatics to Communists and other radical leftists. Although some of their ideas may inform the common conversation about current issues, their inherent selfishness negates any usefulness they may spout. As a result the Destructivists in America are largely marginalized which is a good thing since when they do attract mainstream attention, as in the recent ascension of the Tea Party, the result is a polarization of the conversation which is inherently destructive to American society. Their motto is “don’t tread on me” as if when they push the world away from their door they will live in the Garden of Eden… It ain’t happening.

The third group, of which I am proudly a member, I will call the Cynics. We see the members of the Copacetics and wonder how they can believe all that bullshit. We see some of the founding fathers as little more than the slaveholders that they were, and other founding fathers as apologists and accommodators to the slaveholding class. We hold that the government they set in motion was rife with the destructive forces that directly lead to untold misery through slavery, oppression of Native Americans, and civil war. An impure institution set up by impure men. The America that has been delivered to us as their progeny is a lie and an illusion based on hundreds of years of bad history and that lie continues to make solutions to our problems elusive. We are not like the Destructivists; we do have a positive goal. It is our core belief that problems cannot be solved until they are understood in an historical context and that America just doesn’t get it. America continues to worship the very leaders and laws that continually got it into trouble. We believe that it is of primary importance to recognize the basic flaws of our founders and our government in order to find our common heritage. Then perhaps we will find real solutions to our common problems. I don’t think it is a big statement to say that most American blacks are Cynics like me. A Copacetic sees a dollar bill and enjoys the freedom to spend it as he/she sees fit. A Destructivist wants to burn it and everything that it represents even though that would leave him/her without a means for improvement. A Cynic wants George Washington to be recognized as an evil man who should be removed from the bill. Put a hero like Frederick Douglas or Clara Barton on it so that it can be spent proudly. Cynics do not hate America, quite the contrary they love the promise of America. Our hero is Abraham Lincoln who fought a war because it was the only way to fix America’s biggest problem. Our motto is “a house divided cannot stand”, and therefore we continually search our history and our conscience for the cancers that divide us to find ways to bring us together as one people.

Which brings me to the idea of racial identification. I have always had difficulty at gatherings of Copacetics. They seem to be living in a dream world with their talk of pretty houses and nice cars as if everything in the world is just as it should be. Perhaps I am jealous. It would be nice to wake up and find a world that I am copacetic about. I’m just not feeling it. So even though my skin is white (sort of) and my culture is white I cannot say that I identify as white because I do not share the primary bond of the group… that they are Copacetic. This does not mean that I identify as black. I did not grow up steeped in black culture and I know that I cannot begin to sense what being black in America is like. Still I think I understand why a white person, especially one with more access to black culture than I, might identify as black. Unfortunately, you cannot fix a lie with another lie so to the degree that there is deception involved I think it unfortunate, but still I have to refrain from judging what one person does in reaction to the feeling of estrangement from their own culture. I know it is a sad thing.

So I think about my high school friend and wonder if there is a way to for Cynics like me to turn purple. It would just say to others that we don’t belong with you and we want our own culture. Like in all cultures, I would enjoy identifying and spending time with like-minded people but it is hard as hell to find us under the present pigment limitations.


Head of a (Favorite) Negro


Who is the young man painted in John Singleton Copley’s Head of a (Favorite) Negro (1775-1776)? What do we know about him?

Head of a (Favorite) Negro

By Jerry Leibowitz

The portraits of John Singleton Copley (1738-1815) are known to depict the objects that define his sitter in exquisite detail. The included objects often become more important than the face as they reflect on the sitter and help define the personality. This is true from his earliest innocent American works like Boy with a Squirrel and Paul Revere  to his later more complex works in England where his sitters were doled up in their costumes like Lord Mansfield,_1st_Earl_of_Mansfield_by_John_Singleton_Copley.jpg. Although squarely in the tradition of portrait painting, perhaps this focus on objects was a reflection of Copley’s mercantile upbringing in Boston, where he came from a family of shop owners and lived among traders who largely defined their existence by their things. I know of one exception to this rule in all of Copley’s work, a piece so odd that many assume it was a study for another piece. The work is Copley’s Head of a (Favorite) Negro and I submit that not only was it not a study, but that it deserves to be viewed as a masterpiece squarely within the Copley tradition of surrounding a sitter with those objects that reflect on the sitter.

How can this be, you may ask? There are no things. His shirt is but a sack without even a button. He doesn’t even have a body, no arms, no legs. The sitter does not even have a name, at least one that has been associated with the piece since its creation. No things. Nothing.

But look again at what he has. He appears to possess a pleasant disposition under a delightful scruffiness. Under his ragged shirt we see the wisp of a white collar. I see an expression of longing in his sad eyes. His past is summed up by a scar, maybe a few. Painted in 1775 or 1776 we do not know much about this young man, not even his name or his age. We do know now that his life already happened, more than two centuries ago. What kind of life was it? Isn’t he like he is any young man you might see on the street today, full of promise but mostly full of questions. This painting is modern and timeless, a great step forward from the more wooden characters of Copley’s acclaimed American works.

You may see something else, but here is what I see. In 1776, when the portrait was painted, British officers began returning from the War in America bringing with them slave children who ran away from their owners for the promise of freedom in England. By 1775 it was well known in America that in 1772 in the high courts of England, slavery had been declared odious and against natural law and that once a slave set foot on English soil the slave would become free. As a strategy to quell the Revolution, the British urged adult male slaves to escape from their masters and join the British Army and the slaves were promised papers declaring their freedom upon completion of their service.  Some younger slaves who yearned for freedom but who were too young to be trained as soldiers also escaped from their circumstance and hung out with British units hoping to be brought to a free life in England. They were promised nothing else. I see in this young man such a slave child who made it to England. He had nothing except what he had. And while he may have owned no things at least he was owned by no one else; Copley urges us to reckon his existence unbound and untethered.

John Singleton Copley had been America’s foremost portrait painter in the years prior to the American Revolution. He was largely self-trained and although well-paid he felt stifled by the lack of culture if not by the barbarity of Americans and longed for the education and experience that England and the rest of Europe offered to a working artist. Invited to England by the American artist Benjamin West, who had successfully made his transition to England years before, Copley first journeyed to see the great works of art in France and Italy in 1774 before settling in England. His joyous The Copley Family (1777) records the reunion of his family in England. Although considered as a conversation piece, I suggest that it is a self-portrait in the Copley tradition of a sitter being surrounded by his things…in this case his wonderful family. In England, Copley was ready to begin the second phase of his artistic life as a working artist.

In that context, painting Head of a Negro in 1775-6 may seem an odd choice. One would think that Copley would establish himself by doing what he did best, painting portraits of wealthy aristocrats which clearly this young man was not. Or, he would focus on Historical or Religious paintings, as had Benjamin West, as these genres were considered the highest form of art at the time. Perhaps it is for this reason that Head of a Negro has been considered a study, especially since the same character seems to appear as a dominant force in the wonderful Watson and the Shark (1778), produced at around the same time.

What I see is Copley exploring the idea of freedom. Benjamin West was encouraging his students to be free to develop their own styles and no painting suggests the possibilities of freedom more than Head of a Negro. Here was a young man who had been a slave in America, and for Copley that may have been analogous to the constraints he felt as a repressed artist in his native land. Both gave up what they had when they arrived in England. While the young man likely gave up nothing of worth in America and owned nothing more than an idea of freedom, Copley left behind a life, and he brought with him his wonderful family and a trade. Yet, in essence both arrived without a name and without a past as Copley’s success in America was unimpressive in the mother land. If Copley was going to succeed it would be on the basis of his skills. So too with this young man. The young man’s body, which had no doubt been his most important asset in America, was not going to be meaningful now in civilized England. If he was going to succeed it would be through his demeanor shown in that great face, and his style represented by the wisp of fashion peeking through his neck. The scar near his eye shows that his past was never to be far away; it could burden his soul or inspire it. We hope that this young man lived a great life and fulfilled the destiny Copley saw in his face in 1776, oddly the year when all the talk of freedom in his native land ultimately proved to be a ruse to those like himself who stayed behind.

Interestingly, art historians generally divide Copley’s work by his move to England. There is the American Copley whose portraits spoke to a burgeoning American ethos. And there is the British Copley, whose works display more freedom of purpose but are not universally considered his best works. Freedom is a tricky thing; a yearning deep within the soul. Here is where the analogy ends; we know with certainty that whatever befell this free young man in England was better than his life had he remained a slave in America. Contemplating both the artist and the subject must lead the viewer to contemplate “freedom” itself, what it means today and what it meant as a new country was wrestling with the concept in the late 18th century. New America, itself, should have better contemplated the concept, lest it would not have chosen a path of slavery and oppression. I see that scar visible even today. So look again at the Head of a (Favorite) Negro; there is much to see.

Bust of a Man, the Sequel- Bill Richmond Strikes Back

Bust of a Man, the Sequel- Bill Richmond Strikes Back

  “There are some things you can’t cover up with lipstick and powder…”

Elvis Costello

“They call it the rope-a-dope. Well, I’m the dope. Ali just laid on the rope and I, like a dope, kept punching until I got tired. But he was probably the most smart fighter I’ve ever gotten into the ring with.”

George Foreman

Author’s note 11/13/14: The Getty website has removed references to Northamptonshire.

Bill Richmond (1763?-1829) made his name as a boxer nicknamed “The Black Terror” but he was much more than that. As a boxer and a boxing instructor in England he invented defensive boxing or at least brought it to the professional ring.[i] Before Bill Richmond, boxing was a sport of offense where large brutal white men would go at each other bare fisted until one died, or at least could not continue the fight. Bill Richmond’s style of laying back and taking punches to tire out an opponent was taunted as unmanly; but it allowed his much smaller frame to defeat larger opponents. After Bill Richmond, boxing became the “sweet science” where tact mattered almost as much as strength. But Bill Richmond was much more than even that.


I have touched on the incredible life of Bill Richmond in my pieces located here and here and here I have suggested that the sculpture known as Bust of a Man located at the Yale Center for British Art may be a sculpture of Bill Richmond as a young adult and the similar work located at the Getty Museum is a worthy copy. Neither the Getty nor the YCBA agrees with my assessment of their sculptures and recently the Getty has “conserved” its Bust of a Man obfuscating any inquiry into the truth of the work. The purpose of this piece is not to rehash my arguments but to explain why they are important.


Bill Richmond was born a slave in America, although facts about his childhood as a black slave in the mid-18th century are naturally uncertain. As a teenager he had to choose sides in a Revolution. Does he stay with the Americans who were spouting on and on about freedom and independence but showed little inclination towards his freedom? Or run away at the risk of death to join the British, who first enslaved his people and were now only recently extending a promise of liberation to those who came over to their side. He choose the latter and by his sheer will and accomplishment perhaps as both a fighter and a brilliant joyous soul ended up in the presence of a wealthy British General who was to become the Second Duke of Northumberland. That General left the war theater for England in 1777 and took with him the young teen. The General made sure that his ward was given opportunity, sending him to the ancestral family home in Yorkshire to learn the trade of furniture making. That young teen came back to London destined for greatness, ultimately fighting for the boxing championship of England. Despite his fortunate later upbringing, it was not an easy life for Bill Richmond and he had the scars to prove it. He was a former slave brought to a foreign land, with no known family but for the Northumberlands. He was taunted both in and out of the ring for his boxing style and his life well lived, and he often returned the taunts with a pummeling sometimes of several men at a time. He probably never had official papers or even a name in England, since in America he was too young to have joined the British Army and only slaves who became soldiers actually received papers of freedom and a British identity. As an adult, he probably was illegally in England and subject to recapture because when the Americans won their War they demanded return of their lost property, including slaves.[ii] As an owner of a tavern in later life after his career in the ring, he told stories of his many tribulations. With his perfect body, incredible work ethic and quick wit, if there ever was an American who deserved to be cast in stone, Bill Richmond was it.


The literature on the Bust of a Man at the Getty which purports that it is an original work by Francis Harwood dated 1758 makes no sense. There is a bit of evidence, rejected by art historians, which shows that the sitter for the piece was likely Bill Richmond and that the piece was created later than the 1758 date now clearly engraved in the base of the Getty piece as a result of the “conservation”. The Getty would have you believe that their piece is an original masterpiece in an otherwise undistinguished oeuvre by a copier and a forger. Their response to my evidence was akin to telling me that I misunderstand 200 years of Art History, something to which I would completely agree with if everyone else would concede that they believe in 300 years of mangled American History. In their “Conservation” they apparently oiled the bust like a slave ready for auction; filled in the holes which clearly showed it to be tan stone painted black and not black stone as they have long claimed; “fixed” the date so it reads more clearly; and perhaps glued it to its socle for a reason that may only be known to them. But, after all, it is their sculpture and they could use it as a doorstop if they wish. I never claimed to have the definitive answer as to the nature of the work but I remain somewhat convinced that the 1758 date on the Getty piece is wrong, and that the sculpture is a copy of a work from life which depicts the brilliant boxer and worthy man Bill Richmond as a youth and the finished original work is the “copy” located at the Yale Center for British Art. But The YCBA doesn’t seem to believe me either, insisting that their work is a Harwood studio copy of the Getty work. The Getty, now having touched up their piece, appears to have taken a more active role in obfuscating any truth of the sculptures. If they understood anything about Bill Richmond, they would know that they are fighting a losing battle.


First the stupid stuff. The present online description of the piece on the Getty Museum website still indicates that the piece is carved from Black Stone. [iii]. According to their conservation notes this is not true as the piece is carved from a tan sandstone shellacked to look like black stone.[iv] The myth of it being made from black stone may have been necessary to improve its provenance as an 1865 catalogue refers to a sculpture being made from Black Marble and the Getty claims that this is their piece. Of course, that is the site which catalogues the piece as (obscure first initial) Richmond the Pugilist. The myth of the black stone has been retold in several of the leading publications on the sculpture so the fact that it just isn’t true will be not make the truthiness of the assertion disappear. Just by itself, the notion that a sculpture was one thing made to look like another thing already casts some doubts as to its authenticity. Add to the fact that its purported sculptor, Francis Harwood, has been labeled as someone who succumbed to copying and forging[v], and I begin with the notion that any piece signed by Francis Harwood might be a copy or a forgery. Talented as he might have been, there is little in his oeuvre to suggest he was capable of producing this as an original piece. That assessment is not mine but is rife throughout the literature.


In its provenance of the piece, The Getty Museum website also includes a new reference to the piece having been located for a time at Stanwick Hall, Northamptonshire, England. I assume this was a stupid mistake and not another attempt to obfuscate a truth. There are (or were) two Stanwick Halls; the one in Northamptonshire still stands and has absolutely nothing to do with this piece. The other Stanwick Hall in Yorkshire, Richmond, England was demolished in the 1920’s. It was a secondary seat of the Dukes of Northumberland who were intimately connected to Bill Richmond and to this sculpture. That is where Bill Richmond likely lived and where the sculpture was found and twice catalogued, although whether it was the Getty piece or the YCBA piece that was actually catalogued remains a mystery. Moving the sculpture and the Northumberlands to Northamptonshire may be no more than a research mistake, but it does serve the purpose of suggesting that it was not found in Richmond, England, where Bill Richmond lived and likely took his name, and therefore was not a depiction of Bill Richmond. While I have always conceded that the sculpture may not be a depiction of Bill Richmond, creating false facts and having them repeated does not serve the inquiry well.


So what is there to make of the decision by the Getty to “conserve” their Bust of a Man? Well I always thought the purpose of conservation of a piece of art was to return it to its original form. Why then glue it to the socle? Is that original? Why tinker with the date? Where is the evidence that the date was on the original piece? I can point to two catalogues IN THE GETTY PROVENANCE which do not indicate that the piece was dated. One did not include the name of the sculptor and it called the stone black marble and not painted sandstone. I understand why they filled in the holes and oiled it up, that was probably the same thing that Francis Harwood did to make it look more like the original.


So why is this important? Frankly, like most of you reading this I really do not care who sculpted the original Bust of a Man or when it was sculpted! What I do care about is American History. Americans are quick to blame the British (or the Dutch) for slavery in America. It is true that these powerful nations introduced slaves to America and many of their citizens became wealthy through the slave trade and the toil of enslaved workers. But at some point, before the American Revolution, the Americans took control of their destiny as slave holders and then kept the institution alive without foreign intervention for another 100 years. Before the American Revolution, The Colonists, especially in the wealthy South, resisted any effort by Great Britain to control their laws even though members of its ruling class were all British citizens. As the abolitionist movement was growing in Britain, including the 1772 ruling in Somersett’s Case which outlawed slavery on English soil, the Colonists were  formulating their escape from any notion that they were subservient to the British Crown or Parliament. The great thinkers of the South where the majority of slaves toiled, espoused the notion of local rule on issues including slavery. The largely mercantile North, which was also getting rich off the slave trade and the toil of enslaved workers, was either gullible or complicit. It is likely that the American Revolution was then, in part, a victory of slave holders and mercantile interests over humanity and civilization. In this narrative, Bill Richmond, a slave child, and General Percy, the Second Duke of Northumberland, represent the British movement towards a more civilized world. The fact that a very wealthy British Duke would bother to commission a sculpture of his black ward in the 1770’s or 1780’s shows a relationship that is much more familial than that of servant to master. In this narrative, the sculpture becomes a tangible presence and a symbol of the move towards civilization and America’s resistence to the tide of history. Little wonder then, that the narrative has been rejected and the sitter in the sculpture remains just another nobody without a name.



Bill Richmond suffered many indignities in his life and rose above them all. The notion that the Getty may be adding another now by dressing him up and further stripping his name from the work is of little import. If they are doing it purposely to deceive they are very small. If they are ignorant, they are not alone. Personally, like every one of my grey hairs, I think that the piece before conservation had an incredible story to tell and some of that story is now lost (or embellished!)The Getty should be aware that the truth, like Bill Richmond, is just doing the rope-a-dope. The brutish powers will tire of telling their false stories of America, and true heroes like Bill Richmond will take their place in the pantheon of Great Americans, replacing a host of slave owners who have been given a pass despite their unforgivable acts. Remember, the Getty is just a few turns from Hollywood where nobody ever let the truth get in the way of telling a good story. Bill Richmond’s day will come because he was a legendary man and as we all know in Hollywood they always print the legend.[vi]


[i] See T.J. Desch Obi, Black Terror: Bill Richmond’s Revolutionary Boxing, Journal of Sport History, Spring 2009 at 99. See also website:

[ii] Our first President championed this cause.

[iii] Accessed on October 28, 2014

[iv] I requested a copy of the notes but I have not yet seen them. See Commentary by Chi-ming Yang

[v] Thomas Hoving, False Impressions, (Simon and Schuster 1996) at 64-66.

[vi] The great movie of American myth is John Ford’s The Man Who Shot Liberty Valance which famously concludes with the line “When the legend becomes fact, print the legend”.