Somersett's Case

George William Van Cleve's A Slaveholders' Union includes an interesting discussion of English law concerning slavery leading up to Somersett's Case (1772), the dramatic change in the law that that decision represented, and the discussion (and in some quarters concern) that it prompted in the North American colonies. See also George Van Cleve, Somerset's Case and its Antecedents in Imperial Perspective.

Until the 1760s, the English Crown generally supported and the institution of slavery and “sought to have English law treat slaves as uniform 'imperial' property, since British investors and creditors thought that they needed predictable legal rules to support what they perceived as risky investments in the slave trade and colonial plantations.” This approach was exemplified by the so-called Yorke-Talbot opinion of 1729, in which the Crown's two chief law officers issued an opinion stating that colonial slaves remained property when brought to England:

We are of opinion, that a slave coming from the West-Indies to Great-Britain or Ireland, with or without his master, doth not become free, and that his master's property or right in him is not thereby determined or varied; and that baptism doth not bestow freedom on him, or make any alteration in his temporal condition in these kingdoms. We are also of opinion, that his master may legally compel him to return again to the plantations.

Three years later, “[t]he goal of enforcing uniformity” with respect to slave property led Parliament to pass An Act for the More Easy Recovery of Debts in His Majesty's Plantations and Colonies in America of 1732, “a 'sweeping' statute that guaranteed uniform imperial treatment of slave property for debt-recovery purposes in England and its colonies, overriding all contrary colonial laws.” The Act, “the legislative analogue of the” Yorke-Talbot opinion, provided that

“Negroes” (slaves) in the colonies were classified as property for purposes of debtor-creditor relations. Creditors throughout the empire were given a broad range of remedies to protect their interests in such property. . . . The act thus created a hybrid form of property valid throughout the empire. It effectively overruled a House of Lords decision that had respected colonial law in this area.

A Harvard Law Review article describes the Act as follows:

In 1732, to advance the economic interests of English merchants, Parliament enacted a sweeping statute, the Act for the More Easy Recovery of Debts in His Majesty’s Plantations and Colonies in America, which required that real property, houses, and slaves be treated as legally equivalent to chattel property for the purpose of satisfying debts in all of the British colonies in America and the West Indies. This statute substantially dismantled the legal framework of the English inheritance system by giving unsecured creditors priority to a deceased’s land over heirs. The Act also required that the courts hold auctions to sell both slaves and real property to satisfy debts in most colonies. More broadly, this legal transformation likely led to greater commodification of real property, the expansion of slavery, and more capital for economic development. American landholders, however, were subjected to greater financial risk than would have been the case in the absence of the Act.

There the law remained through the 1760s, but by that point opinions concerning slavery were changing among some in England. In the latter half of the 1760's, the great English legal commentator William Blackstone analyzed the slavery question in his landmark treatise Commentaries on the Laws of England (1765-1769). Although Blackstone was a quintessential establishment figure and no rebel, he branded slavery “an arbitrary and despotic power” inconsistent with English law (Volume 1, pp. 122-123, emphasis added):

THE idea and practice of this political or civil liberty flourish in their highest vigour in these kingdoms, where it falls little short of perfection, and can only be lost or destroyed by the folly or demerits of it's owner: the legislature, and of course the laws of England, being peculiarly adapted to the preservation of this inestimable blessing even in the meanest subject. Very different from the modern constitutions of other states, on the continent of Europe, and from the genius of the imperial law; which in general are calculated to vest an arbitrary and despotic power of controlling the actions of the subject in the prince, or in a few grandees. And this spirit of liberty is so deeply implanted in our constitution, and rooted even in our very soil, that a slave or a negro, the moment he lands in England, falls under the protection of the laws, and with regard to all natural rights becomes eo instanti [at that moment] a freeman.

This discontent over the legal treatment of slavery came to a head in Lord Mansfield's ruling in Somersett's Case in 1772, which he issued although he acknowledged its destabilizing effect (“We feel the force of the inconveniences and consequences that will follow the decision of this question”).

The key to the decision was Lord Mansfield's underlying conclusion that slavery was a status or relationship conferred by law, not an objective reality or thing (a horse is always going to be a horse, no matter what the law says). Moreover, status was location and jurisdiction dependent. One man might own another under the laws of one country. But if master and servant relocated to another country, the laws of that country applied, and if those laws did not recognize or authorize the status or relationship of slavery, then that condition no longer applied:

So high an act of dominion [as holding another in slavery] must derive its authority, if any such it has, from the law of the kingdom where executed. A foreigner cannot be imprisoned here on the authority of any law existing in his own country: the power of a master over his servant is different in all countries, more or less limited or extensive; the exercise of it therefore must always be regulated by the laws of the place where exercised.

Slavery, then, could not exist unless authorized by “positive law” of the jurisdiction in which the dominion of slavery was exercised. Although Lord Mansfield did not spell out precisely what “positive law” consisted of, he did specify that it excluded judge-made law exemplified in England by the Common Law, by which judges fashioned non-statutory rules of responsibility and liability in a variety of contexts (for example, what degree of negligence, if any, was necessary to hold a defendant liable for damages in a personal injury action, or the rules that determined whether a binding contract existed). Slavery was “so odious” that something more – presumably a statute of parliament or perhaps “immemorial usage” – was required to constitute the “positive law” required to create it:

The state of slavery is of such a nature, that it is incapable of now being introduced by Courts of Justice upon mere reasoning or inferences from any principles, natural or political; it must take its rise from positive law; the origin of it can in no country or age be traced back to any other source: immemorial usage preserves the memory of positive law long after all traces of the occasion; reason, authority, and time of its introduction are lost; and in a case so odious as the condition of slaves must be taken strictly.

From there, decision in favor of the slave (or non-slave) followed rapidly. Because England had no such non-judge-made positive law, “the man must be discharged”:

The power claimed by this return [i.e., the master's response to the petition of habeas corpus, in which he asserted that he was entitled to hold the petitioner as a slave] was never in use here; no master ever was allowed here to take a slave by force to be sold abroad because he had deserted from his service, or for any other reason whatever; we cannot say the cause set forth by this return is allowed or approved of by the laws of this kingdom, therefore the man must be discharged.

The Pathetic Decline of Thomas Jefferson

At the beginning of his new book A Slaveholders' Union: Slavery, Politics, and the Constitution in the Early American Republic, George William Van Cleve juxtaposes earlier and later letters of Thomas Jefferson on slavery.

Jefferson wrote the first letter on August 7, 1785 to Richard Price, an English radical. Price had published a pamphlet earlier that year, entitled Observations on the Importance of the American Revolution, in which he had, among other things, argued that the logic of the American Revolution required the abandonment of slavery:

The negro trade cannot be censured in language too severe. It is a traffic which, as it has been hitherto carried on, is shocking to humanity, cruel, wicked, and diabolical. I am happy to find that the united states are entering into measures for discountenancing it and for abolishing the odious slavery which it has introduced. Till they have done this, it will not appear they deserve the liberty for which they have been contending. For it is self-evident that if there are any men whom they have a right to hold in slavery, there may be others who have had a right to hold them in slavery. I am sensible, however, that this is a work which they cannot accomplish at once. The emancipation of the negroes must, I suppose, be left in some measure to be the effect of time and of manners. But nothing can excuse the united states if it is not done with as much speed, and at the same time with as much effect, as their particular circumstances and situation will allow. I rejoice that on this occasion I can recommend to them the example of my own country. In Britain, a negro becomes a freeman the moment he sets his foot on British ground.

In writing to Price, Jefferson positioned himself as a sympathetic ally who expected that most enlightened Americans would eventually come to see the correctness of Price's argument (paragraph breaks added):

From my acquaintance with that country [America] I think I am able to judge with some degree of certainty of the manner in which it [Price's pamphlet, in which he argued that the continued existence of slavery was inconsistent with the American Revolution] will have been received. Southward of the Chesapeak it will find but few readers concurring with it in sentiment on the subject of slavery.

From the mouth to the head of the Chesapeak, the bulk of the people will approve it in theory, and it will find a respectable minority ready to adopt it in practice, a minority which for weight and worth of character preponderates against the greater number, who have not the courage to divest their families of a property which however keeps their consciences inquiet.

Northward of the Chesapeak you may find here and there an opponent to your doctrine as you may find here and there a robber and a murderer, but in no great number. In that part of America, there being but few slaves, they can easily disencumber themselves of them, and emancipation is put into such a train that in a few years there will be no slaves Northward of Maryland.

In Maryland I do not find such a disposition to begin the redress of this enormity as in Virginia. This is the next state to which we may turn our eyes for the interesting spectacle of justice in conflict with avarice and oppression: a conflict wherein the sacred side is gaining daily recruits from the influx into office of young men grown and growing up. These have sucked in the principles of liberty as it were with their mother's milk, and it is to them I look with anxiety to turn the fate of this question.

Thirty-five years later, however, in his famous April 22, 1820 letter to John Holmes, Jefferson was inveighing against those who advocated restriction of slavery in Missouri as guilty of "treason against the hopes of the world":

If they [the advocates of restriction] would but dispassionately weigh the blessings they will throw away against an abstract principle more likely to be effected by union than by scission, they would pause before they would perpetrate this act of suicide on themselves and of treason against the hopes of the world.

And the following year, in a February 13, 1821 letter to John W. Taylor (which I cannot find online), Jefferson was reduced to fulminating against advocates of restriction as "Northern bears [who] seem bristling up to maintain the empire of force."

The illustration, entitled Smelling Out a Rat, "shows Richard Price seated at a desk, he turns to look over his right shoulder at a vision of an enormous Edmund Burke, his spectacles, nose, and hands emerge from the haze, a crown in one hand and a cross in the other, on his head an open copy of his 'Reflections on the Revolution in France....' Hanging on the wall is an illustration of the beheading of Charles I titled, 'Death of Charles I, or the Glory of Great Britain.'"

Name That Speaker

When I hear a man advising the American people to state the terms of peace, I know he is working for Germany.

And

Any man who refuses to back the President in this crisis is worse than a traitor.

The year is 1917. The speaker is not the man pictured at the top. But it is an indirect clue.

Tom Traubert's Blues

A nice version of Tom Traubert's Blues on this Yom Kippur. Don't know why they seem to go together.

Donald Stoker Gets Two Right

Having given Donald Stoker some grief in a recent post, I feel duty bound to report that in the following pages of The Grand Design: Strategy and the U.S. Civil War he makes two very nice points in quick succession.

First he pinpoints what I believe was the most bone-headed decision of the war: the determination to shell Fort Sumter:

Robert Toombs had warned of the consequences of firing on the fort, believing it would “inaugurate a civil war greater than any the world has yet seen. . . . You will wantonly strike a hornet's nest which extends from the mountains to the oceans, and legions now quiet will swarm out and sting us to death. It is unnecessary; it puts us in the wrong; it is fatal.”

Not only was Toombs correct regarding the effects of the bombardment, both immediate and long-term, he was also insightful regarding its futility. The South did not need to attack Sumter when it did . . ..

Second, Prof. Stoker crystallizes nicely a key difference – perhaps the key difference – between Abraham Lincoln and Jefferson Davis:

The Union had no real strategy when the war began. Lincoln quickly approached his professional military leaders for guidance . . .. Even in the conflict's opening days, Lincoln was asking Winfield Scott what plans he had for winning the war. Lincoln always pondered how to achieve victory, and . . . was willing to do what was required. David, historian David Potter argued, “always thought in terms of what was right, rather than in terms of how win.” Lincoln tried to get his generals to figure out the path to victory. If they could not, he would try to figure it out for them. By contrast, “there is no evidence in the literature that Davis ever at any one time gave extended consideration to the basic question of what the South would have to do in order to win the war.” This is perhaps the most important difference in how these men led.

Justice Breyer Mangles Dred Scott

Matthew J. Franck's vivisection of a 2009 speech given by Associate Justice Stephen G. Breyer on the Dred Scott decision is too funny to miss. Here's a taste:

But declining to publish the 2009 lecture “A Look Back At the Dred Scott Decision” would have been a service to the author, Justice Stephen G. Breyer. It appears in the latest issue, which I recently received, and Breyer’s lecture is, quite simply, an embarrassment. I am inclined to believe that no clerk helped him with it, since any recent law school graduate from a top school should have done a better job. The lecture contains elementary errors of fact, makes at least one attribution of an argument to a justice in Dred Scott which is entirely inaccurate, and plods to a set of conclusions that are suffused with banality. If I were to grade this piece of work as a term paper by an advanced undergraduate, I’d give it a C- if I were in a good mood.

The editors could have saved Breyer from such boo-boos as typing “1817″ in one place and “1859″ in another for the date of the Dred Scott decision (it was 1857), and they could have silently corrected one subject-verb disagreement and his omission of the third “e” in Horace Greeley’s name. More importantly, they could have rescued Breyer from the absolute howler of telling us that three justices dissented in Dred Scott, when there were only two who did so. Readers who think I’m making a mountain out of a molehill should consider that, in the field of constitutional law and history, Dred Scott is the most famous 7-2 decision of the Court until Roe v. Wade. It’s a mistake rather like saying that in 1858 the prairie of Illinois echoed to the sound of the Lincoln-Douglas-Buchanan debate. You’d kind of lose your cred as a Lincoln buff if you said this. And it’s not a one-time slip: Breyer makes this error three times in the published lecture. He discusses the dissent of Benjamin Curtis at some length (not that he really understands it well), but never names the other two who he thinks dissented. Okay, Mr. Justice, it was John McLean and . . . Anyone? anyone? This is a blunder that could have been avoided by relying on Wikipedia, for pete’s sake.

Can it get worse? Yes, this is a disaster on many levels. At one point Justice Breyer attributes to Justice Curtis an argument about the due process clause that Curtis never makes:

"Nor could 'due process of law' mean that a slave remains a slave when his master moves from, say, slave state A to live permanently in free state B. What law would then govern the slave, the slave’s wife, his house, his children, his grandchildren? State B has no such laws. And State B’s judges could not work with a proliferating legal system under which each slave, coming to B, brought with him his own law, from A or from C or from whatever other slave state he happened to be from."

This might just be an interesting argument, if Curtis had ever made it. But he didn’t. And he didn’t for the very simple reason that the due process clause at the center of the Dred Scott case was in the Fifth Amendment (the Fourteenth was added 11 years later partly in response to Dred Scott), and the Fifth Amendment only dealt with the question of what protection one’s life, liberty, or property had under federal law, whereas Breyer is nattering on here about what would happen under this or that regime of state law, which the Fifth Amendment’s due process clause could not affect. Ah. Never mind, then.

The speech, published in the Journal of Supreme Court History, does not appear to be available online. However, what I presume to be a modified version of the speech, delivered on April 21, 2010 to the New-York Historical Society, is available.

In the revised version, Justice Breyer appears to have cleaned up some of the howlers identified by Mr. Franck. However, Justice Breyer continues to identify arguments that Justice Curtis never made; he has apparently not yet figured out that there were only two Dred Scott dissenters ("Still Curtis and two others were in dissent. The Court’s majority of six had prevailed."); and he still can't spell Horace Greeley's name.

Donald Stoker Gets the Small Stuff Wrong

If you're going to write a “big” book, you'd better get the small stuff right, or you're going to lose me pretty fast.

In the opening pages of The Grand Design: Strategy and the U.S. Civil War, Donald Stoker has already raised my eyebrows several times. Neither misstep may be central to his study, but still the nagging thought enters my mind: if I can't trust him on the small stuff that I, a mere history buff, happen to know something about, why should I trust him on anything else?

Example no. 1 is Stoker's characterization of Jefferson Davis as a “rabid secessionist[].” The context suggests that this was Davis's position throughout the 1850s: “The compromise's [the Compromise of 1850] tenets cut the feet out from under rabid secessionists such as Davis, at least for a while.”

But William Freehling and others have explained that Davis was anything but. Ironically, the opening pages of the first volume of The Road to Disunion refer to the fundamental differences between an essentially conservative politician such as Davis and radical disunionists such as William Lowndes Yancey and Robert Barnwell Rhett:

How Rhett must have winced as citizens [of Montgomery, Alabama] screamed approval [in February 1861 upon hearing that Davis had been selected to be provisional president of the confederacy]. For Jefferson Davis had long cooperated with Disunionists' foe, the Southern National Democratic Party. Whether manipulating presidential cabinets or maneuvering the United States Senate, Davis had usually advocated the National Democrats' main line – that disunion was folly because the South could rule the Union through the party. In 1858, when Davis came close to breathing northern territorial heresies, Mississippi's legislature had demanded explanations. In November 1860, he had warned Rhett against disunion. Would he now lead a retreat back into the Union?

Example no. 2 is Stoker's portrayal of Abraham Lincoln as all-wise statesman with fixed ideas from shortly after his election as to how to respond to threats of secession (emphasis added):

As 1860 swept to its end, a New York journalist asked the president-elect how he would deal with secession. Lincoln said [on December 29, 1860], “I think we should hold the forts, or retake them, as the case may be, and collect the revenue.” Clearly, Lincoln's mind was made up on the North's initial strategic response . . ..

But anyone who has read Russell McClintock's Lincoln and the Decision for War will know that the assertion that Lincoln had made up his mind about anything in December 1860 is ludicrous.

It is certainly fair to say that Lincoln's instinct was to hold or retake the forts, and it is equally fair to say that he ultimately acted in accordance with his instinct when he directed the resupply of Fort Sumter four months later. But the real-life Lincoln was assailed by doubts and indecision before he gave the fateful order. Here, for example, is McClintock on the state of Lincoln's thoughts as of about March 21, 1861, when he sent several people to South Carolina to collect information on public opinion there:

Plainly Lincoln was torn. On the one hand, even if the fort [Sumter] could be provisioned without starting a war, which did not seem possible, it could not be held indefinitely. It had no real military value, and could not even be used for collecting the revenue offshore. Evacuation would remove the primary irritant to Southerners and, by signaling the administration's pacific intent, strengthen Southern unionism by cutting the ground from under those who charged coercion. It would also remove the danger that a successful attack would invigorate disunionism. On the other hand, evacuation might embolden secessionists and could have a demoralizing effect on the already strained Republican Party. The results of evacuating Sumter were simply impossible to predict. Would it encourage border-state loyalty and lead to the peaceful restoration of the Union, as Seward and his Southern friends believed? Or would it encourage disunionism and cement the existing division, as Blair and the stalwart Republicans insisted? Lincoln wanted as much information as possible before making his final determination.

Update: Post edited to change "March 21, 1860" to "March 21, 1861", and "was" to "wanted".

I, At Least, Will Never Forget

Nine years ago, I watched the twin towers blaze from a nearby building.  I forced myself to stare at the flames and swore to myself as I did so that I would never forget.

The mainstream media quickly buried the horror in some sort of gentlemen's agreement not to air the video except on extraordinary occasions. Our flaccid president suggests that this was not Islamic mass murder but something more akin to a natural disaster and bleats that the greatest danger is discrimination against the co-religionists of the guilty whose religious vision led them to commit mass murder.

But I made myself watch evil, and I, at least, will never forget.

Confederate Generals in the Western Theater, Volume 2

Confederate Generals in the Western Theater, Volume 2: Essays on America's Civil War (Lawrence Lee Hewitt and Arthur W. Bergeron Jr., eds.) is a worthy successor to the first volume of essays, which I discussed in earlier posts. I am sure that one or more of the Civil War sites dedicated to such things will provide a comprehensive review, so I will content myself with highlighting a few of the essays I particularly enjoyed.

The standout, for me at least, was Stephen Davis's “John Bell Hood's Historiographical Journey; or, How Did a Confederate General Become a Laudanum Addict?” The essay focuses, as the title suggests, on unraveling the origins of the story, reported in some histories, that Gen. Hood's Chickamauga stump might have led, or probably led, or did lead him into opiate use – opiate use that might have been, or probably was, or actually was one of the reasons for the debacle at Spring Hill, in which a doped up (or possibly inebriated) general went to bed for the night without insuring that his army was positioned properly to block the escaping Federals. Prof. Davis's review is both amusing and an instructive warning on how an isolated and undocumented speculation can morph over time into a fact.

The frustrating enigma that is Joseph Eggleston Johnston quite naturally draws the volume's attention, and the editors appropriately provide contrasting essays on different periods of his Civil War career – a critical examination by Terrence J. Winschel of Johnston's activities during the Vicksburg campaign (“The Absence of Will: Joseph E. Johnston and the Fall of Vicksburg”), and a more sympathetic portrait by Craig L. Symonds of Johnston during the war's final months (“Joseph E. Johnston in North Carolina”). Prof. Winschel's essay, in turn, forms a negative counterpoint to Archer Jones's more forgiving analysis, in the first volume, of Johnston's actions as commander of the Department of the West beginning in December 1862 (“Tennessee and Mississippi, Joe Johnston's Strategic Problem”). Because I believe that Johnston's faults outweigh his virtues (while acknowledging the difficulties he faced), I think that Prof. Winschel is closer to the mark, but the joy of Joe Johnston to historians is that the debates will continue so long as the Civil War remains a topic of study.

Although (or because) I am no Joe Johnston fan, Prof. Symonds relates a detail that epitomizes, I think, the man's maddeningly contradictory qualities. When Johnston was appointed in February 1865 to take charge of the effort to oppose the Sherman juggernaut, he assumed that Jefferson Davis had named him to the post “only to ensure that would be the one to bear the opprobrium of the final surrender.” His reaction was anger and defeatism. After receiving the order, “he replied morosely: 'These troops form an army too weak to cope with Sherman.'”

Even so, Johnston, to his credit, did his duty and ;assumed the post. Then, “much of the self-pitying pessimism . . . evaporated in March” when Johnston learned that Robert E. Lee had made the appointment over Davis's objection. “'Be assured,' [Johnston] wrote to [Texas Senator Louis] Wigfall, 'that Knight of old never fought under his king more loyally than I'll serve under Gen. Lee.'” “For Joe Johnston,” Prof. Symonds observes. “the campaign in North Carolina was less an opportunity for victory, than a chance for redemption.”

UPDATE: At Civil War Books and Authors, Andrew Wagenhoffer has added his more thorough and, in my view, entirely fair review here.

Cow, Cat and Cupola

What Can I Say . . .

it's been a long week.