Throughout the history of humankind, certain challenges have puzzled society. Education, public safety and the economy are issues consistently at the forefront of our collective minds, but no permanent solution appears. However, in the last three hundred years, particularly in the United States and the United Kingdom, the most perplexing and vexing challenge has been race. At its core, race is unsettling because it unearths an intrinsic conflict and oftentimes a contradiction between our words on the one hand and our policies, laws and actions on the other. Are we countries that live up to the lofty ideal of democracy in which we embrace all who seek to join our citizenry or do we systematically exclude persons from the polity on the basis of race?
Many of you are in the throes of your studies. You examine the world as it is. For all its problems, you see some good and some bad. Our respective countries have attempted to eliminate racism and embrace diversity. What is racism? We certainly could have 100 lectures on its origins and progression. At its core, racism relies on the notion of inferiority. Diversity, another exceedingly complex term, is one of the ways society chooses to combat racism.
Each of you has splendid and numerous examples of how we combat racism. One small example, I was both struck and proud that the entire Premier League took a knee against racism and discrimination over a year ago when post-pandemic play resumed in mid-summer. The entire league continues to do so today. Hopefully, the popularity of Ted Lasso in the States will bring the message of fighting racism and discrimination even more resoundingly to all.
Today, I suggest that we take a step back in history to examine how our highest courts addressed racism through the lens of slavery. The crux of the institution of slavery is the subjugation of one's dignity and the enforced capitulation of one's free will. This process inevitably relies on the perceived inferiority of the slave and creates consequential inequality.
My modest objective today is to examine how England and the United States attempted to address this complex topic through the prism of the law at two particular points in time, through two now famous cases, written by two well-respected jurists, each of whom took an entirely different approach. Hopefully, it will help us understand how the law, at times, moves us towards, or away from, achieving our ideals.
I shall examine the words in their judicial opinions and how those words may have affected events, perceptions and the law in the time they lived and beyond.
I am sure you are asking yourselves—Judge, how far back are we going? Our travels will take us to the 1770s in England and Lord Mansfield, the Chief Justice of the King's Bench, and the 1850s in the United States and Roger Taney, the Chief Justice of the Supreme Court of the United States. Each jurist had a very similar task—answer a question that could profoundly affect their nation and the course of history. The question—if a slave moves from a place that allows slavery to a place that does not allow slavery, does that mean the slave is now free? Exactly what they decided and how they each went about it spoke to whom they were as individuals and judges. Why is it important? The study of slavery speaks to the justification of the dehumanization of an entire people for economic reasons without the responsibility of moral judgments. As tomorrow's leaders, you should hear and understand how the law, as pure and unencumbered as it may seem, can be both steadfast against and responsive to political and economic concerns.
In the United States, every issue that confronts society at one time or another comes to the steps of the courthouse. Judges are asked to resolve complex issues that society cannot resolve on its own. Those resolutions are not perfect. Judges are earnest in their efforts to come to the appropriate resolution, but we are not infallible. Let's take a step back in time.
In the 1770s, England was the most powerful nation in the world. Its hold on commerce was unquestioned. Its dominance of the slave trade was also beyond dispute. Between the Caribbean and the colonies thousands of slaves were in British control. Despite this dominance many sought to end slavery. Clearly there were religious, moral and philosophical reasons to end slavery. There was no uniformity of opinion in the British Empire.
Interestingly, there was no law regarding slavery in England. It was neither permitted nor prohibited under the law. To be sure, slaves existed in England at this time, but not as a matter of law. This was an opportunity to create new law—hence, the Somerset v. Stewart [1772] 98 E.R. 499 (Eng.).
William Murray, Lord Mansfield, has been touted as the best lawyer of the Eighteenth Century and a jurist the equal of Chief Justice of the United States John Marshall. Lord Mansfield was appointed Chief Justice of Court of King's Bench in 1756, at the time England's highest Court. Indeed, his stature is evident to posterity by the fact that the Supreme Court of the United States has cited to his decisions over 330 times, most recently in 2008.
As is true of many transformational jurists, Lord Mansfield was ahead of his time. Thought by many to be the founder of modern commercial law, Lord Mansfield's view on a number of substantive areas was prescient. He viewed the influence of money on elections as a threat to democratic institutions, and he understood and recognized that individuals had a right to privacy. One of his biographers (Norman S. Poser)
N Mansfield believed that the courts should be engines of social change. He saw morality as the basis of all law, and his court the guardian of public morals. He was willing to supplement the reforms enacted by the legislature and, where it deemed necessary, to make new law in order to achieve justice and to protect the weak.
This view of Lord Mansfield is most telling. How could morality and slavery be reconciled? Certainly, justice would not permit such inconsistency.
The F. Dumont Smith,
Mansfield had gone to great lengths in other cases to avoid the question of the legality of slavery in England. He hoped, much like cases today, that settlement would occur and obviate the necessity of deciding the issue. The slow progress of the case built up momentum and it became a cause célèbre. Both sides not surprisingly argued policy, property and morality interests.
Lord Mansfield framed the question—Whether colonial slavery laws could be enforced in England in the same way, for example, that a marriage contracted in a foreign country would be recognized in England. Specifically, could Stewart capture Somerset, keep him in captivity and take him out of the country against his will?
On the one hand, to legalize slavery would have many consequences contrary to the law of England. On the other hand, setting free 14,000–15,000 men could also have disruptive consequences.
Lord Mansfield was a principled jurist and noted “Compassion will not, on the one hand, nor inconvenience on the other, be to decide, but the law . . .”
Mansfield felt a tension between his rational and humane beliefs and his unwavering support of British commerce and the sanctity of property. He understood the importance of the slave trade to British merchants, yet he knew that slavery could not be justified on any rational or humanitarian ground.
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Lord Mansfield issued a courageous opinion. Although he may have had both religious and moral reservations about slavery, he understood that there were two sides to the argument. His opinion, resulting in Somerset's freedom, spoke volumes when he quoted the oft-used Latin phrase—
Apropos of that thought, the following is a quote from the The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only positive law … . It is so odious, that nothing can be suffered to support it, but positive law. Whatever inconvenience, therefore, may follow from a decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.
Now, what does the ruling mean—if a slave came to England, ran away while in England, he or she could sue for their freedom and win. There were three important takeaways from the opinion. While Lord Mansfield technically could not deem slavery illegal in England, his opinion did note that an English court would not recognize a slaveowner's control over a slave. Lord Mansfield insisted that the scope of the opinion was merely that Somerset could not be forcibly taken from England since the writ of habeas corpus (freeing the body) protected both blacks and whites.
The opinion in
Similarly, the opinion did not order the end of slavery in England and its colonies.
Although, it did heighten fears that this may be imminent,
Fast forward. Eighty-four years after the Ruth Paley,
Dred Scott v. Sandford, 60 U.S. 393 (1857).
Taney grew up in a family with slaves. As an adult, he owned slaves for a period of time, but freed them. The freeing of those slaves, coupled with cases in his earlier career, might lead the uninitiated to believe he was against the institution of slavery. Indeed, as a practicing lawyer he represented a Methodist minister from Pennsylvania, Jacob Gruber. Gruber was indicted for inciting slaves to insurrection by preaching a sermon addressing the irony of newspaper advertisements itemizing the sale of slaves alongside horses, cows and sheep.
Taney's summation in that case does not seem like the calculated words of a defense attorney. His prose seemed to earnestly represent his thoughts at the time. He stated:
A hard necessity, indeed, compels us to endure the evil of slavery for a time. It was imposed upon us by another nation while we were yet in a state of colonial vassalage. It cannot easily or suddenly be removed. Yet, while it continues, it is a blot on our national character; and every real lover of freedom confidently hopes that it will effectually, though it must be gradually, wiped away, and earnestly looks for the means by which this necessary object may be attained.
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Although these words may appear to portend what Taney's views are, and therefore how he might rule on the subject of slavery, that form of supposition is a fool's errand. Many a lawyer attempts to guess how a judge might think through a problem based on that judge's background or life experience. Such a pursuit is an inexact science that rarely yields reliable results.
The
He put the issue in the case as follows: “The question is simply this: Can a Negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States . . .?”
Despite earlier writings to the contrary, Taney relied on a nakedly racist rationale for the key proposition of the case—Blacks are so inferior no whites could have possibly thought them worthy—whether slave or not—of being part of “our” political community.
Taney used three principal arguments in surmising that Blacks could not be deemed to be part of the political community at the formation of the United States. He started with the Declaration of Independence, the document that colonists relied upon to declare their separation from England. Taney asserted that the now famous words “[w]e hold these truths to be self-evident, that all men are created equal,”
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The interesting historical note is that free Blacks lived and fought in the American Revolution. Indeed, the first person to lose his life in the fight for independence of the colonies was Crispus Attucks, a Black man.
The second major tactic Taney employed was invoking the notion of inferiority. The following is a revealing quote from the opinion.
“They [Blacks] had for more than a century before been regarded as being of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so inferior, that they had no rights which the white man was bound to respect; and that the Negro might justly and lawfully be reduced to slavery for his benefit.”
Let's just take a step back from the opinion for a moment. Taney's comments undermine the fact that free Blacks at the time were already part of the political community. In many states, Blacks voted and were deemed part of that state's citizenry. His statement about having no rights which the White man was bound to respect
(Back to the opinion.) “He was bought and sold and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits as well as in matters of public concern, without doubting for a moment the correctness of this opinion.”
This quote is emblematic of Chief Justice Taney's opinion. He sought in every way possible to leave no stone unturned regarding the issue of whether Blacks could be thought part of the political community and thus citizens.
Michael Meranze,
Taney's third tactic was to reference England and the rest of Europe as adherents to his postulate regarding inferiority.
Taney's reference to England and its position on slavery seems to neglect the persistent moral, political, religious, and economic dilemma that England grappled with from the time of the
Dred Scott lost his case. Interestingly, the son of a former owner bought Scott and his family's freedom and Scott died soon after the opinion was issued. Justice Taney did not save the confederacy. I say confederacy intentionally. The war came a scant 3 years later. You know how it ended. But think of how these events relate to what you did today. As a result of
What are the takeaways from today's lecture? Racism is not a new malady that has befallen our societies.
Laura Kyte, A. Downs,