Category Archives: Somersett’s Case

Head of a (Favorite) Negro

head

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 http://www.johnsingletoncopley.org/Boy-with-a-Squirrel-(or-Henry-Pelham).html and Paul Revere http://www.johnsingletoncopley.org/Paul-Revere-1768-70-large.html  to his later more complex works in England where his sitters were doled up in their costumes like Lord Mansfield http://upload.wikimedia.org/wikipedia/commons/6/61/William_Murray,_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) http://www.nga.gov/content/ngaweb/Collection/art-object-page.46098.html 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) http://www.nga.gov/content/ngaweb/Collection/art-object-page.46471.html, 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 http://idiscoveredamerica.com/?p=52 and here http://idiscoveredamerica.com/?p=149 and here http://idiscoveredamerica.com/?p=94. 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. http://www.getty.edu/art/collection/objects/1199/francis-harwood-bust-of-a-man-english-1758/ [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: http://moreorlesschurch.blogspot.com/2008_10_05_archive.html.

[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 http://www.centerforbritishart.org/slavery-and-portraiture/336/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”.

Improving Race Relations- For $23.30

Improving Race Relations- For $23.30

By Jerry Leibowitz

 

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

Frederick Douglass, 1852[1]
He reacted to his deed with a shrug of his shoulders…

The Lonesome Death of Hattie Carroll   Bob Dylan 1964

 

Introduction

Historians write of slavery as one of America’s original sins, something we overcame with the civil war. Few describe slavery as a holocaust, which I suggest is historically more accurate. In the more than hundred years before the formation of United States of America and the nearly one hundred years after its formation, the ruling class subjugated millions of workers to forced labor based solely on race. Many generations of blacks were born into slavery, lived as slaves and died as slaves, never tasting “freedom”, “democracy” or “independence”. By definition those terms are universal or they are meaningless, they either exist or they don’t. A country where one fourth of its population was forced to create the wealth of its ruling class cannot meet any criteria to be labeled as a model of “free enterprise”. In the lowlands of South Carolina, where slaves were approximately four fifths of the population in 1776, “fascist”, or “police state” would be more appropriate labels. There is little doubt that slave workers were sent there to do backbreaking labor until they died; whether they would last a day, a week, a month, a year, or ten years. Many areas of South Carolina were considered too harsh for settlement, so the only whites there were taskmasters. There is no accurate history of South Carolina or other parts of the slave nation; the victims could not write it and the ruling class would not write it. The myths of early America as a bastion of free enterprise or democracy were born and bred in this Dark Age, a tale told by ignorants, repeated even today by many who should know better.[ii]

Since owning slaves was legal and common, a slave owner or task master had to cross the line from horrible into depraved before their conduct would warrant notice, and even the most egregious acts were tolerated or mildly punished. Of the many founding fathers who owned slaves not a single one faced any significant scrutiny for their behavior towards their slaves. In their time they were heroes of a revolution and their ownership of slaves was deemed insignificant in comparison. We continue to write our history from this point of view. We continue to use words like freedom, democracy, independence and free-enterprise to define a place where they did not exist. We continue to doom ourselves by repeating and believing this false history. Ask most white Americans today about slavery and the reaction will be something akin to a shrug of the shoulders.

Slave owners appear on American currency and coin currently issued by the United States Treasury.[iii] There is something unseemly about asking Americans to carry a legacy which honors anyone who participated in this part of our past. It is even more of an affront to the citizens of the United States whose ancestors were forced to live unspeakably brutal lives at the whim of those who claimed the audacity to own another human. Symbols matter and who we as a country choose to honor today speaks to who we think we are as a people. We cannot physically punish dead men but we can reconsider that which is left of them; their reputation. I propose here that we institute a 28 year ban on the issue of currency or coinage depicting anyone who owned slaves. At the end of 28 years at least some punishment will have been served and a review should be undertaken of any slave holder to determine if their benefits to our world outweigh their participation in our national holocaust and they can again be the source of national honor and worthy of being placed on or coins or currency. Perhaps we cannot change the past but in my mind there is little doubt that we can improve the present and future by better acknowledging and addressing some of the disturbing issues that separate us and restrain our quest for a more perfect union.

Andrew Jackson is on the twenty dollar bill.

It is thought that Andrew Jackson inherited about 9 slaves and had over 150 slaves when he died. It is estimated that he owned about 300 slaves during his lifetime. Among other tasks, his slaves undertook the backbreaking work of clearing out the land of Jackson’s legacy farm, the Hermitage. His slaves provided for Jackson’s growing wealth by working the land. [iv] Although an absentee owner, his periodic updates on conditions at the Hermitage included news that his slaves were dying at astounding rates, usually blamed on an unknown disease on not on the cruel acts of his overseers, who were known to be quite cruel.[v] Jackson also took a leading role in America’s other abomination, its unforgivable treatment of Native Americans.[vi]

Thomas Jefferson is on the nickel and two dollar bill.

By the time of his death Thomas Jefferson owned about 200 slaves. 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…”[vii]It is unclear if his most famous writing, the Declaration of Independence, was hypocritical, self-delusional or aspirational. Jefferson knew that his most infamous words as written in the Declaration of Independence were not true. 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. It is often said that in his heart Jefferson wished for the end of slavery, recognizing it as an abomination. Yet, Jefferson had no desire to turn America into a multicultural society; his “problem” with freeing slaves was that there was no place to put all those newly freed and probably angry former slaves.[viii] Other than a bit of hand wringing, Jefferson accomplished nothing politically before, during or after his presidency to ameliorate the plight of forced labor.[ix]

George Washington is on the quarter and the one dollar bill.

Considered one of the wealthiest Americans at the time of the American Revolution, George Washington owned approximately 200 slaves. 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.[x] Washington was not an innocent bystander who was born into a corrupt system and did nothing to change it. As president, Washington personally took up the cause of slave owners under the Treaty of Paris in their startling pursuit of compensation (reparations?) or return of those former slaves who made it to freedom in England during the American Revolution.[xi]

Whatever other merits these men may have had as people, as statesmen, or as writers, their ownership of slaves warrants some reconsideration of their reputation on a periodic basis. I question whether any of the three belong on the currency or coinage of the United States. At some point we must have decided that slavery was not that significant an issue in our history so as to taint its practitioners. Historians have participated in this whitewash. We are wrong.

 

Blaming the British

Ask the average intelligent American today about the justification for the ownership of slaves by some of our founding fathers and you will usually get an answer which somehow blames the British or Dutch for bringing slaves to America as early as the 17th century. This peculiar notion of slave owner as a victim of the times was developed and explored by Virginians in the 1770’s and was expressed in an early version of the Declaration of Independence.[xii] Historians have often pointed to Jefferson’s writings for the notion that some in the south believed that the issue of slavery would eventually be suitably resolved.[xiii] It is true that each of the three subjects of this piece inherited slaves. Each was born into a culture where slavery was not only tolerated but was the wealth creating engine of their society. Each was imbued with a notion that the freedom of existing slaves would wreak havoc on their economy and would create a security and social problem both for the former slave and the former slave owner. I find none of these points persuasive in any current analysis of their characters.

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.[xiv] 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. This growth of slavery from 1776 to 1865 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. 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, turning parts of Virginia into a slave breeding enterprise.[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. Their inability to resolve the slavery issue at the inception of the new country led to the forced labor of millions of workers, the ignominious death of many, and ultimately to a brutal war which killed many of their descendants. It also led to the founding of a country based on hypocritical principles. Legal scholars continually argue cases based on the “original intent” of the Constitution as can be deciphered from these founding fathers. Dred Scott was such a case. The mistakes of those founding fathers who used their political will to insure that the Constitution permitted the continuation of slavery are continually being visited on us, their actual and adopted descendants.

The Decision in Somersett’s Case

There is no truth to the persistent historical theory that slavery was tolerated in early America out of ignorance that those who were owned were somehow not human and therefore suitable to be possessed like other property or livestock. Obviously, those many slave owners like Jefferson who used their slaves for sexual purposes did not see themselves as practicing bestiality or sexual deviance. In England in the mid-18th century, a movement developed which asserted the rights of slaves as human beings deserving of their freedom. This movement in the mother land was disconcerting and provoking to American slave holders since the King and parliament was the ultimate arbiter of American Law. Slave owners from America routinely brought their slaves with them when conducting their business in England, where there were servants but not slaves and a growing significant population of free blacks. English abolitionists led by Granville Sharp began “kidnapping” slaves from their owners and asserting their freedom in various English courts using various arguments. While many cases were settled for freedom and compensation, the Somersett case did not settle mostly due to the thought on both sides that they could not lose on the big issue of the legality of slavery on English soil.[xix] The case proceeded to the highest court of Great Britain and when Lord Mansfield was finally called to issue his decision in 1772, he ruled the obvious; that slavery was an odious institution inconsistent with natural or English law and could not exist where there was no positive law permitting it to do so and no such positive law had ever existed in England.[xx] The ruling class in the south did not have to take any action in response to the decision since each colony had passed positive laws concerning the legality of slavery thereby making the Somersett decision of little legal relevance.

 

While applicable only to the soil of England, the significance of the Somersett decision in Colonial America is under debate. There is a theory that the wealthy South would not have participated in the American Revolution but for their apprehension that continued British rule would eventually lead to a decision freeing slaves in America.[xxi] This theory does not fail for lack of logic, only for lack of actual proof that America’s founders specifically contemplated the significance of the decision.[xxii] It remains somewhat unexplained why wealthy British citizens so loyal to England in 1766 would become revolutionaries by 1775, since the South did not suffer from many of the indignities perpetrated in the North. It remains likely that their motives were not as pure as we attribute to them, and that the perpetuation of slavery was significant in their motivation. Self-rule was the antidote to any intrusion whether foreign or domestic. That the south would cling to the rubric of self-rule at all cost was proved later by the civil war. In any event, in 1772 the High Court of their motherland left no doubt that their slaves were human, their behavior was odious, and their institutional practice of forced labor was uncivilized, although perfectly legal. Perhaps, they may have rightly feared, one day soon they would be considered criminals by their motherland for their participation in such abomination. Revolution was a lesser evil.

 

The Gradual Emancipation Acts

The formation of the United States of America from the Stamp Act Congress of 1766 to the passage of the Constitution in 1787 includes a sad history of how slave owners managed to keep slavery legal through a revolution of thought about independence, freedom and democracy. Once the northern colonies, through John Adams, agreed to let the issue be considered as a local matter, the die was cast that the new America would remain a slave nation. In the mercantile north, where slavery was not vital to the local economy, slavery began to wane after the revolution as abolitionists petitioned for freedom of slaves in the courts, much like Granville Sharp had done in England in 1772. Pennsylvania provided the nation with a template to solve the slavery issue politically, with the passage of legislation in 1780 providing for the gradual emancipation of all slaves.[xxiii] New York, New Jersey, Connecticut and Rhodes Island ultimately passed similar legislation. But this template was not followed in the agrarian South which became more intransigent on the issue. The best minds of the Virginia, given so much credit for establishing the core principles of American democracy, could not or would not entertain a political solution. Perhaps they could perceive of no solution that would safely and fairly accommodate Southern slave holders. Any talk of ultimate liberation of all slaves in America at the forming of the new government, and there was such talk even in the south, never did have any traction politically.[xxiv] Instead, the new government repeated the horrors of compromises past, and included in its Constitution the three-fifths compromise of Article 1 Section 2, and the Fugitive Slave Act of Article 4 Section 2. So much for their original intent.

The 1780 legislation in Pennsylvania, entitled An Act For the Gradual Emancipation of Slaves, might be considered an insufficient document by today’s standards but it was a big step forward towards the elimination of slavery in Pennsylvania and in the other states that ultimately passed similar legislation.[xxv] The Act freed no slave, any current slave in Pennsylvania would remain a slave until death or manumission. The Act provided that no additional slaves could be brought into the state, and that any children of current slaves born after 1780 were free, except that they were to be bound as indentured servants to the masters of their mothers until they were 28 years old when they must be released. These children were technically not slaves and could not be sold as slaves. While imperfect and subject to amendment to fix loopholes, the Act did provide the template that led to the elimination of all slaves in Pennsylvania by 1847. It also must have provided some hope to a Pennsylvania slave child born after 1780 (an indentured servant) that the day would come when they would be free. Twenty eight years is a long time, but it is not a lifetime, at least not for some. It now seems just the right length of time to “punish” those slave holders who did not see fit to provide for any thought of freedom to those whom they enslaved.

The Replacements

I could easily come up with a long list of great Americans who could replace slave owners on our currency and coins for the duration of the 28 year period of banishment of the subjects of this piece. The richness and diversity of the land has given a spark to many great Americans who participated in and rose above the common American experience. Yes, I tried to be eclectic and broad minded, and to the best of my knowledge everybody here represents a great idea in American History without participating in abominable acts. I would be honored to hold any of them in my pocket or my wallet.

 

Nickel- John Quincy Adams

Quarter- Harriet Tubman

Dollar Bill- Clara Barton

Two Dollar Bill- Mark Twain

Twenty Dollar Bill- Frederick Douglass

 

Conclusion

I am not really so naïve as to think that this writing will improve race relations. I take my cue from Mark Twain who wrote Huckleberry Finn in 1885 to humanize a troubled issue at a time when ignorance and hate were deeply entrenched. As brilliant as that work was, it perhaps accomplished little. I also take my cue from my Passover Seder, where each year my family and friends recount a story of slavery which happened thousands of years ago. We learn that it takes more than a few generations for some damage to be repaired. It seems that many Americans, even the well-meaning, are trying to ignore our way out of a deep seated problem and it is not working. It astounds me that most Americans seem to not care about its past, preferring to preserve its myths as if they are sacred. America is such a beautiful place but we have to clean its blood soaked stains. Time by itself heals little and slowly; knowledge is the only cure. Tough issues must be discussed in a heartfelt manner at dinner tables, VFW halls, barber shops and bowling alleys by all who truly want a better America. America is not some ancient civilization where what occurred in the past doesn’t matter anymore. All of its past is recent past, a blip in the history of the world. Its experiment is still quite young, still quite promising. I cannot think of anything more American than having our leaders, even if they are dead, called to task for what they have done. Some price must be paid. I suspect that a great thinker like Jefferson would have it no other way. For just $23.30 some of those discussions, maybe quite painful ones, may begin to take place. Being true to our past remains our best and perhaps only hope for a true and just future.

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

[ii] Obviously there are many historians and many histories. Yet, even historians sensitive to the issue of slavery, such as many of the authors cited here, use words like “Freedom”, “Independence” and “Democracy” where it did not exist. For example, just because a document is called a Declaration of Independence does not make it a declaration of “independence”. As a personal note I offer that the “Give me Liberty or give me death” speech of Patrick Henry is perhaps the most hypocritical, obnoxious speech ever presented. Yet, he too, has been given a pass and been labeled a great patriot.

[iii] The same analysis should be applied to stamps issued by the United States Postal Service. Yet few use stamps today so at this point any changes to stamps while symbolic would not generate any useful thought.

[iv] See http://www.thehermitage.com/mansion-grounds/farm/slavery

[v] Robert V. Remini, Andrew Jackson and the Course of American Democracy 1833-1845 Volume lll, (Harper & Row Publishers, New York 1984) 50-51.

[vi] Jon Meacham, American Lion, Andrew Jackson in the White House (Random House, New York 2008) 54.

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

[viii] At best, Jefferson’s solution to the slave issue could be summarized as “anywhere but here”. See http://www.monticello.org/slavery-at-monticello/liberty-slavery/solution-jefferson-proposes-gradual-emancipation, http://www.monticello.org/slavery-at-monticello/liberty-slavery/solution-jefferson-proposes-colonization, http://www.monticello.org/slavery-at-monticello/liberty-slavery/solution-jefferson-proposes-diffusion. See also Jon Meacham, Thomas Jefferson: The Art of Power (Random House 2012) 124.

[ix] Jon Meacham, Thomas Jefferson: The Art of Power (Random House 2012) 124. Jon Meacham presents a sensitive approach to Jefferson’s failure at 474-479. I am skeptical of Jefferson’s real commitment to the abolition of slavery where Meacham is not.

[x] 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 (Penguin Press New York 2010) 110-117.

[xi] 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.

[xii] This tawdry analysis was removed from later versions of the Declaration of Independence. See Jon Meacham, Thomas Jefferson: The Art of Power (Random House 2012) 105.

[xiii] See footnote 8.

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

[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 mostly 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] Alfred W. Blumrosen and Ruth G. Blumrosen, Slave Nation, How Slavery United the Colonies & Sparked the American Revolution (Sourcebooks Inc., Naperville Illinois 2005).46.

[xviii] See Richard R. Beeman, Patrick Henry, A Biography (McGraw-Hill Book Company New York 1974) 66.

[xix] See Stephen Underwood, The Black Must Be Discharged- The Abolitionist Debt to Lord Mansfield, HistoryToday Volume 31, Issue 3 1981 at http://www.historytoday.com/stephen-usherwood/black-must-be-discharged-abolitionists-debt-lord-mansfield. Note: The article includes a persistent reference to the notion that there were 15,000 slaves in England in 1772. My research indicates that that is the number of free blacks and that the number of slaves was insignificant.

[xx] See Norman Poser, Lord Mansfield, Justice in the Age of Reason (McGill-Queen’s University Press, Canada 2013).

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

[xxii] I would like to thank Professor Poser for his emails which helped me clarify some thoughts appearing herein.

[xxiii] See http://www.portal.state.pa.us/portal/server.pt/community/empowerment/18325/gradual_abolition_of_slavery_act/623285.

[xxiv] Jon Meacham, Thomas Jefferson: The Art of Power (Random House 2012) 124

[xxv] See http://www.portal.state.pa.us/portal/server.pt/community/empowerment/18325/gradual_abolition_of_slavery_act/623285.

Encouraging American Genius

Encouraging American Genius

                                                                                                                By Jerry Leibowitz

 We are stardust, billion year old carbon We are golden, caught in the devil’s bargain And we’ve got to get ourselves back to the garden.

Joni Mitchell

 I have been thinking about what it means to “encourage American Genius” since I wrote my last piece on the Corcoran Gallery of Art (See http://idiscoveredamerica.com/?p=461  ). William Corcoran used the phrase in the deed donating what became the first independent Art Gallery in America in 1869, stating that his gift was:

“…in the execution of a long cherished desire to establish an institution in Washington city, to be “dedicated to Art,” and solely used for the purpose of encouraging American genius, in the production and preservation of works pertaining to the “Fine Arts,” and kindred objects…”

The phrase and the words “Dedicated to Art”, which is displayed on the façade of both the original and the present Corcoran Gallery acquired in 1897, has popped up in the controversy about the future of the present Corcoran Gallery of Art, which seeks to terminate many of its operations. In using the phrase, I see Corcoran as reiterating a strand of American thought that went back at least to 1760, the year that Benjamin West left Pennsylvania to view the great art of Italy, never to return. Despite, or because of, our view of our founding as something inspired by divine intervention, we often fail to see the America that was born of a brutal and barbarous nature, where much of its wealth was extracted from the enslaved to the utter disregard if not the benefit of its founders. Early America was a cultural wasteland which many of the best minds of our early generations chose to leave to pursue their craft. While the civil war did not solve America’s problems, after the war William Corcoran was among those calling for the next America to be better than the last; through art, through culture and through the development and encouragement of American genius.

The cornerstone of the Second America arguably was laid in England in 1791 with a painting by Benjamin West entitled “Expulsion of Adam and Eve from Eden”. http://www.nga.gov/content/ngaweb/Collection/art-object-page.70986.html.  As if by my design, the painting now hangs in the National Gallery of Art in Washington D. C. Obviously, this was a subject that had been covered numerous times before; it is one of the most familiar and iconic images in western thought. Yet, as the NGA website points out…”West’s Expulsion contains two motifs not found in Genesis or any traditional pictures of the theme: an eagle swoops upon a helpless bird, and a lion chases frightened horses. In general terms, such beasts of prey imply the destruction of harmony that resulted from Original Sin.” The eagle became the bird emblem of the United States of America in 1782. Its placement in the work calls to the viewer the America that Benjamin West had left over thirty years before. Perhaps the lion represents the slaveholders and the horses represent their slaves.[i] West, who was a Quaker and was adamantly anti-slavery, had left America as a British citizen and ended up in England where he rose to the highest level of his craft, a friend and Court painter to King George lll. West was not the only American artist who left his native land; he was soon followed by John Singleton Copley, Gilbert Stuart, and John Trumbull all of whom sat out the Revolutionary War in England. They were eventually followed to Europe by virtually every great American artist of the 19th and early 20th century, each of whom studied or lived in Europe for a considerable period of their artistic development. We know a little of why these early American artists left America; Copley called his native country barbarous and limiting to his craft; Trumbull may have been a spy for America, having served as aide-de-camp for George Washington for a short time early in the War; Stuart was a bit scattered and was perhaps looking for some stability abroad. I suggest that Benjamin West invited this community of artists to England to “encourage American genius” in a place removed from America’s original sin, its toleration of slavery. When the smoke from the American Revolution had cleared, Trumbull and Stuart returned to America fully formed as artists giving America its first artistic life, one couched in love for the new country. It was as if Benjamin West sent out these emissaries of art to go forth and multiply and breed American genius. It is likely that Gilbert Stuart, having lived among those who were a part of the antislavery movement while in England[ii], returned to America as an emissary for that movement, often discussing political subjects with those who sat for him. Trumbull went on to document America’s founding, and established the first University Art Gallery at Yale largely to collect his own works. West and Copley stayed in England and continued their artistic pursuits. West’s views against slavery were quite well known and clearly contributed to his historic and religious themed works. Copley explored the humanity of the slavery issue in his works including Watson and the Shark (1778; also at the NGA! http://www.nga.gov/feature/watson/watsonbig.shtm), The Head of a Negro (1777-1778; http://www.dia.org/object-info/d99ac8e6-eeea-4436-be9c-7e2c797712b8.aspx  and The Death of Major Peirson (1783, http://www.tate.org.uk/art/artworks/copley-the-death-of-major-peirson-6-january-1781-n00733). In retrospect then, Benjamin West put out the first call to “encourage American genius” just at the time that the founding fathers were beginning their experiment with self-government but were unable or unwilling to recognize that the flaws in their work would render America spiritually damaged and eventually hurl the country towards self-destruction and civil war.

I have written previously of the bequest of James Smithson, and how that gift was intended to propel America out of its barbarous nature (See Follow the Money- the Legacy Perhaps of James Smithson, http://idiscoveredamerica.com/?p=94. Under Smithson’s will of 1826, his money was given “to the united states of America to found at Washington, under the name of the Smithsonian Institution, an Establishment for the increase and diffusion of knowledge among men.” Arguably, as I suggest in Legacy, it was the knowledge diffused by that institution that made the end of slavery inevitable, since knowledge is the ultimate cure for ignorance and indifference. While the cure for America turned out to be unbelievably painful, it must be recognized that by 1860 the disease was quite severe. All of the compromises which let slavery continue and expand in America, going back to compromises made in 1775, had rendered the country spiritually depraved. Despite all the progress being made in the Arts and the Sciences, the use of forced labor to create wealth had rendered the country unholy, and that evil was a limiting restraint on the creation of true American genius. The end of slavery through the civil war gave America a new chance, and men with foresight were not about to let the moment slip by doing nothing.

William Corcoran was intimately familiar with the Smithson bequest, having worked with Congress on establishing the Smithsonian Institution. He provided expertise on the building of the Castle which housed the entire Institution. As a Southern sympathizer who helped foster the compromises in the 1840’s and 1850’s that made the civil war inevitable, Corcoran had some fault to bear in the ugly matter. His fortune had been made in banking largely by funding the Mexican American War in 1846, which provided for the expansion of the country deemed necessary for the continuation of slavery.  While many in the south were devastated by their loss of autonomy through the Civil War, Corcoran came to recognize that without the burden of the slavery issue which could only divide America, the great days of America lay ahead. In 1869, he found himself on the other side of the civil war with a ton of money, a passion for art, and a new blank canvas to create the Second America as a far better place than the first. His gift of the Corcoran Gallery of Art reflects that hope. Where Smithson used the word “knowledge”, a word which connotes something quantifiable and exact, Corcoran’s vision was for “Art” and for “Genius”, concepts which are exquisite and unquantifiable. The Civil War provided redemption from America’s original sin and perhaps Corcoran’s own sins, and now it was time for grace and return to the garden.

It is with all this in mind that I contemplate again the status of the present Corcoran Gallery of Art and specifically what it means to “encourage American Genius”. As I noted in my last piece, I am quite certain that the art from the Gallery will be fine under the care of the National Gallery of Art. The building which houses the Gallery is of no moment here, since it was constructed after the death of William Corcoran and could not have been a part of his vision. But the concept of “Encouraging American Genius” remains to me as important and elusive as ever. We still live in the Second America. We have had our share of genius yet we remain far from the garden. So how do we now encourage American genius?  Arguably “genius” is not developed at all it just happens from time to time. Maybe the MacArthur Foundation has it right…wait for someone to do something great…call it “genius” and throw money at it. But I am not sure that works either, since if I won a MacArthur grant I would probably change the name of my website to IdiscoveredTahiti.com and never be heard from again. (Note to MacArthur Trustees: That last comment was just literary license. If I were to receive a grant I would churn out the genius stuff like you wouldn’t believe!). William Corcoran may have had a reasonable notion as to what it meant to “Encourage American Genius“ as shown by his help establishing artists of the Hudson River School, but it is also true that much of what he collected were secondary works. That is not a knock on his talent or ideals, but more a statement on the elusive nature of encouraging genius.

An Art School, a Museum, a studio…whatever. The chance of anyone finding and encouraging true American artistic genius remains slim. The job of the artist is to turn out the work; whether it is genius or not is usually judged by posterity which sometimes takes an awfully long time to answer. For every Michelangelo there is a Van Gogh. William Corcoran must have known all this when he gave his gift. Perhaps with his gift he was trying to follow the mold set by Benjamin West in the 1770’s. The modest building he gave may have been well suited to the task of encouraging American genius in 1869. Perhaps the biggest mistake made by the Trustees of the Corcoran Gallery of Art was when they moved to larger quarters in the late 19th century and are now burdened by something large and unwieldy. But then again, the late 19th century was a time of big ideas, and Corcoran liked living large and probably would have blessed the expansion. But 19th century ideas may not be relevant to our times and our William Corcorans should not be tied to them. How we encourage our 21st century American geniuses is a mystery to me. Still, like the accurate compass which gives direction to this website, William Corcoran pointed the country in the right direction. Hopefully his legacy will continue to lead us back to the Garden.

 

[i] In the Zong decision (1783) slaves were thrown off a ship in peril and later claimed as a loss under an insurance policy. Lord Mansfield was called to decide if the jury was correct in ruling for the slaveholders… “that the Case of Slaves was the same as if horses had been thrown overboard.” Lord Mansfield reversed, ruling against the slave holders. History has (incorrectly, in my opinion) somehow attributed the analogy of slaves to horses to Lord Mansfield, which is unlikely given his ruling in Somersett’s case (1772) declaring slavery to be odious and therefore unsupportable on English soil. See my piece on Lord Mansfield at http://idiscoveredamerica.com/?p=154 and the recent biography by Professor Norman Poser entitled Lord Mansfield, Justice in the Age of Reason (McGill-Queen’s University Press, Canada 2013). The facts of the Zong Case were so horrible that the analogy resonated throughout the antislavery movement in England, leading to British withdrawal from the slave trade in 1807. In 1780, John Trumbull painted George Washington with his slave on a horse, equating the two as servants to their master, http://www.metmuseum.org/collection/the-collection-online/search/12822.

[ii] See Follow the Money- The Legacy Perhaps of James Smithson, http://idiscoveredamerica.com/?p=94.

Thoughts on Lord Mansfield, James Somersett and Dido Belle

 

Thoughts on Lord Mansfield, James Somersett and Dido Belle

by Jerry Leibowitz

To remain as I am is impossible; I must die or be better…

                                                                                                       Abraham Lincoln

 With the release of the wonderful movie Belle, there is another in what has been a periodic reassessment of Lord Mansfield (1705-1793) and his legal decisions. Were his decisions against slave traders and benefitting runaway slaves based on deeply held beliefs or narrow commercial law principles? Did his dark skinned niece Dido Elizabeth Belle’s presence in his house influence him in his decisions on the Zong, or perhaps the Somersett Case? Why did he provide for the manumission of Dido in his will if she was a free black woman? Did he appreciate the impact of his decisions or, as some believe, continually minimize their scope? Did he singlehandedly start the American Revolution through the Somersett decision? The numerous questions raised by his decisions and life require thoughtful analysis.[i] Here I skim the surface for a logical approach to this man and how his decisions affected his times.

Lord Mansfield had a brilliant legal mind. It would not be an exaggeration to say he is considered as one of the geniuses of legal thought. He is basically credited with codifying if not inventing Commercial Law.[ii] One must therefore begin with the assumption that he knew exactly what he was doing and said and wrote exactly what he meant. In the area of Commercial Law, fortunes are often made or lost as a result of a legal decision. It must be assumed that Lord Mansfield contemplated the consequences of his decisions, and to the degree that anyone can, knew full well of their ramifications.

The current reassessment as a result of the movie Belle focuses more on his role as a social justice. The Somersett Decision (1772), in which he freed an American slave who had been brought to England is often credited with jumpstarting the antislavery movement if not outright declaring slavery illegal, something that it did not do. The Zong decision (1783), difficult to address due to its horrible facts, is given great play in the movie when really I could have decided that case correctly. If bad facts make bad law, it must be said of the Zong decision that horrible facts can make no law at all. Still the questions about Lord Mansfield motives and objectives must be addressed if only to clarify and contextualize the liberties taken in the movie Belle.

One interesting theory is that Lord Mansfield did singlehandedly start, or at least made inevitable, the American Revolution.[iii] In 1772, he issued the decision in Somersett’s Case where he freed the slave James Somersett solely because Somersett had been brought to the free soil of England by his slave master.  It is unclear if there was a written decision or if the oral decision was transcribed and reported. What is not in doubt is the fact that as a high judge of British Courts he called the practice of slavery “odious”. He did not have to use that word or any pejorative term to get to his result. He could have found some way to decide the case under Commercial Law principles without diving into the merits of controversial social topic whose survival was of great concern to the commercial interests of 18th century Great Britain. Whether the decision freed one slave, as Benjamin Franklin suggested, or was intended to be the basis for freedom of all slaves in England and perhaps all of Great Britain has been debated. I suppose that was purposely left murky by Lord Mansfield. What is not in doubt was that Lord Mansfield sent a message to slave holders. He told proud men like Patrick Henry and George Washington and Thomas Jefferson that their practice of owning slaves was odious and by extension, they were barbarians. Lord Mansfield was more stating the obvious than providing a revelation. How could the decision not have impacted wealthy slaveholders who were British subjects operating under British Laws when a great judge of Great Britain called them odious? One would think that there must have been a reasonable fear that the existence of the institution of slavery would eventually be terminated by the same tribunal. Hence, the theory goes, the American Revolution or at least the southern participation in the War became inevitable to protect the institution of slavery. All from one word in one decision that had nothing to do with slavery on the American continent. The problem with the theory is that in the thousands of documents written by and about American patriots in the 1770’s, there is nary a mention of the decision in Somersett’s Case. While some thoughts are better left unsaid or at least unwritten, it seems unlikely that the decision in that case could be so important yet not have crept into some contemporary documents. There was a lot going on in America then as loyal British subjects were moved to become revolutionaries. The role of the Somersett decision in that process clearly deserves to be considered as a motivational theory, even as the reported facts of the time tend towards minimizing its significance absent better proof.

Let me backtrack. Even as great a mind as Lord Mansfield could not know the ultimate consequences his decision in Somersett’s Case might have. In 1772, he could not guess that instead of searching for practical ways to address the slavery issue, by 1775 the Americans would unite against British rule and start a revolution. He could not know that the Americans would be victorious in the War and therefore successful in promulgating “positive law” that would continue the institution of slavery well into the 19th century. He could not know (well maybe he could!) that the hearts of men could be so cold that they would double down in their odious practices. All he could know is that in 1772 slavery in America and the slave trade of Great Britain seemed intractable; he could not score his goal, he could only move the ball. I do not think anyone can contemplate the word “odious” and not know where his heart stood. Lord Mansfield was categorically against the institution of slavery and of that there can be no doubt.

Lord Mansfield had tremendous respect for the law and not only did he want his decisions to make sense, he wanted Commercial Law to be codified under consistent principles. His Commercial Law decisions provided great certainty to the mercantile interests of Great Britain. No matter what his personal feelings about slavery were, he still had to apply consistent principles to the cases before him. But where did slavery fit into Commercial Law? If slaves were chattel they could be treated as any other property, subject to the whims of the owners. But what other chattel could become free? By 1772, London was a city with a sizable population of former slaves who were living as free persons. One such person, Dido Elizabeth Belle, was related to him, she lived in his house, and by many accounts was cherished by him. These free people owned things…and ownership is the bedrock of Commercial Law. Chattel cannot own chattel. What if someone claimed to own someone living as a free man, much as Charles Stewart claimed to own James Somersett in 1772? How could Commercial Law deal with this oddity? The simple answer is that it could not! There really was no way of including slavery into any system of Commercial Law that would truly make sense. To Lord Mansfield, two important principles intersected. The first was that slavery and anything connected to slavery was “odious”. The second was that there could be no consistent rules of Commercial Law in the murky areas relating to slave ownership. The cases involving slavery existed in their own universe; a place where humans could be compared to horses. It was a place where Lord Mansfield could use words like “odious” to convey his heartfelt opinion that such a universe should not exist. So yes, it is most likely that Dido Belle’s presence in his home influenced his decisions, but not more so than the world influences the decisions of all of us, each and every day.

I have a special interest and expertise in the somewhat controversial area of adverse possession, where the ownership of real property changes based on possession. Lord Mansfield invented the term “adverse possession” and helped change the notion of adverse interests from a negative approach to a positive one. Before this approach the title to abandoned property was forfeited by the old owner but no new title was created in the hands of the possessor. Lord Mansfield helped create the new notion of good title by possession and thereby cleared up many of England’s longstanding title issues. Think now of Dido Belle. Under the Somersett decision by her great uncle she was a free woman as long as she lived in England. Right? Well not if you read the Treaty of Paris. The Americans who spouted about liberty and independence wanted all of their slaves back as a spoil of winning their war. After 1781 and the surrender of Cornwallis, the former slaves in England, their children and their children’s children were considered by the victorious Americans to be slaves again, subjected to return to America. They became a subject of treaty negotiations in 1783 and again in 1794.[iv] These negotiations did not go well for the (former) slaves. Lord Mansfield had no claim of ownership of Dido Bell through any purchase, so by what right could he confirm her freedom in his will? Adverse Possession, of course, or at least the similar principle as applied to chattel. Arguably Lord Mansfield’s work in codifying adverse possession of chattel freed more slaves than his Somersett decision…quite a trick for work in commercial law.

I am unabashed in my praise of Lord Mansfield and the first Four Dukes of Northumberland, of whom I have written about elsewhere. If the definition of greatness is when one rises above their circumstances, then these are all great men. Born into an entrenched system which they benefited from greatly, they worked to change that system at its core. None of them ended slavery in America but each in their own way moved the ball forward towards that end. That is more than I can say for some American “heroes”, who elegantly wrote of and fought for liberty yet did nothing to help the millions of people that they ultimately helped oppress.

 

 

[i] A great place to start is the recent biography by Professor Norman Poser entitled Lord Mansfield, Justice in the Age of Reason (McGill-Queen’s University Press, Canada 2013. The book provides a complete and balanced context for any discussion of Lord Mansfield and his times. I would also like to personally thank Professor Poser for his emails which helped me clarify some thoughts appearing herein.

 

[ii] Bernard L. Shientag, Lord Mansfield Revisited– A Modern Assessment, 10 Fordham L. Rev. 345 (1941).

 

Available at: http://ir.lawnet.fordham.edu/flr/vol10/iss3/1. Accessed June 17,2014

 

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

 

[iv]  The Autobiography of Colonel John Trumbull, Edited by Theodore Sizer for the Library of American Art (Kennedy Graphics, Inc.-Da Capo Press New York 1970) Page 180.