By declaring in Somerset v. Stewart (1772) that the nature of slavery is “so odious … nothing can be suffered to support it but positive law,” Lord Chief Justice Mansfield placed himself firmly in that jurisprudential tradition that distinguishes between the law of nature and the law posited in any particular jurisdiction.¹ Despite Mansfield’s declaration, “fiat justitia ruat caelum,”² however, the judgment in Somerset merely maintained that slaves brought to England could not be forcibly removed from the Island without habeas corpus review. As the Chief Justice recognized, “The setting 14,000 or 15,000 men at once free loose by a solemn opinion, is much disagreeable in the effects it threatens,” and the Court’s judgment in Somerset was tempered by a due regard for political expedience.³

Whatever the limited holding of the case, the Somerset judgment did seem to imply that the master-slave relationship rested on a dubious legal foundation because of slavery’s contrariness both to natural law and to the substantive principles of the English Constitution. After the American Revolution, moreover, the “decision took on a life of its own and entered the mainstream of American constitutional discourse,” playing a particularly important role in American antislavery constitutionalism.⁴ As Don Fehrenbacher notes, Somerset “became a major weapon in the arsenal of abolitionism, lending support to the argument that slavery was contrary to natural law and without legal status beyond the boundaries of the jurisdiction establishing it by positive law.”⁵ At the dawn of the nineteenth century, the legislative criminalization of the transatlantic slave trades by the United Kingdom (1807) and the United States (1808) opened the door to novel legal attacks on slavery based on this jurisprudential distinction between the law of nature and the local positive law.⁶

Although Mansfield’s rhetorical attack on the nature of slavery in Somerset was subsequently treated as dictum that did not decide any specific point of law, the particularities of the newly suppressed slave trade and the ambiguities of international law brought forth cases in the early nineteenth century in which judges were invited to consider whether anything but positive law could be suffered to support the legal status of slavery. One type of novel legal case that was brought before judges in England and the United States involved slaves asserting their own claim to freedom by virtue of their temporary residence in jurisdictions that did not explicitly protect or sanction slavery through positive legislation. Absorbing the premise in Somerset that the status of slavery depends on local law, these individuals petitioned for their own freedom. “Once free for an hour, free forever” became the rallying cry of the Anglo-American abolitionist movement. As freemen, they claimed, any reintroduction into a state of slavery constituted an illegal assault subject to habeas corpus review and judicial redress.

In contrast to the narratives sketched by Whiggish constitutional histories, the path of constitutional development in these early slave trade cases was often disjointed and the cases emerged within convoluted political and historical contexts.⁷ As Ken Kersch notes in the introduction to his revisionist account of the development of post-New Deal civil liberties jurisprudence,

The development of Anglo-American antislavery constitutionalism in early nineteenth-century slave trade cases is particularly amenable to an analysis that emphasizes the influence of creedal principles on the tragic constitutional choices made within concrete political and historical contexts. Antislavery jurists often invoked political and moral ideals to challenge contradictory institutional and social practices, but, as historically situated actors, they were seldom faced with simple, unidimensional choices between freedom and slavery or egalitarianism and ascriptive hierarchism.

In several cases that involved slaves asserting their own claims to freedom, the lack of explicit, controlling legislative provisions further brought to the fray questions of higher background rules and fundamental constitutional commitments implicit in each tradition, including considerations of natural law. There was often a tension between the universal and the particular elements at play in these cases, and this tension was brought to light by a judicial consideration of the relationship between the particular requirements of the positive law (as well as other prudential or strategic considerations) and the universal principles of liberty thought by judges to be embodied in the natural law. As scholars such as Samuel Huntington and Gary Jacobsohn have argued in difference contexts, the tension between the universal and the particular elements in constitutional orders often creates a kind of constitutional disharmony. Indeed, from a comparative perspective, Jacobsohn suggests that the problem of disharmony is a “universal constitutional condition,” and Huntington, within the American context, notes that the “gap between promise and performance creates an inherent disharmony, at times latent, at times manifest, in American society.”⁹

The practice of slavery in the Anglo-American world during the early nineteenth century provides a stark example of discord between normative constitutional principles and existential realities, a disharmony John Quincy Adams later characterized as a great “conflict between the principle of liberty and the fact of slavery.”¹⁰ The notion that American ideals have been at odds with American practice is, however, a contested premise. Scholars associated with Critical Race Theory, in particular, have challenged the thesis that liberal ideals are necessarily opposed to slavery and other forms of racially ascriptive hierarchies.¹¹ In addition, the empirical claim that the ideals (as opposed to the practices) of Americans have predominately been liberal has been challenged by scholars such as Rogers Smith, who argue that “American politics is best seen as expressing the interaction of multiple political traditions, including liberalism, republicanism, and ascriptive forms of Americanism, which have collectively comprised American political culture, without any constituting it as a whole.”¹²

Mark Graber’s recent revisionist account of the Supreme Court’s proslavery ruling in Dred Scott v. Sandford (1857) highlights some of the normative questions that emerge from viewing American constitutional development through a multiple- traditions paradigm. American antislavery constitutionalism in the nineteenth century rested on the premise that even the slavery-related clauses in the Constitution aspired toward a certain liberal constitutional vision that was not yet a reality. One specific interpretive difficulty attending such a theory of constitutional aspiration is Graber’s claim that, with respect to slavery, illiberal as well as liberal principles were equally rooted in the American political tradition.

Many such revisionist accounts – whether stemming from Critical Race Theory or from the multiple-traditions approach – focus on the Jacksonian, Civil War, or Reconstruction eras. The defense of slavery as a positive good as well as an entrenched constitutional value, rather than a necessary evil temporarily protected by constitutional compromise, was, however, much less prevalent in the first quarter of the nineteenth century. Even a young Roger Taney, author of the Court’s notorious proslavery opinion in Dred Scott, assented to the tenets of the antislavery constitutional tradition while working as a lawyer in 1819. “A hard necessity,” Taney argued,

Only later did Taney adopt the position, which informed his Dred Scott opinion, that “it is too clear for dispute, that the enslaved African race were not intended to be included” under the egalitarian principles of the Declaration of Independence.¹⁴

The formative but limited impact of Somerset on Anglo-American constitutional development during the first quarter of the nineteenth century supplements and challenges traditional “Whiggish” constitutional narratives of inevitable liberal progress and various revisionist accounts that suggest proslavery principles are as rooted in the Anglo-American constitutional tradition as antislavery principles. The early-nineteenth- century trend of judicially extending the general principles of liberty implicit in Somerset was halted by conservative decisions in the American case of The Antelope (1825) and the English case of The Slave Grace (1827), which are remarkably similar in principle despite their emergence in different constitutional contexts.¹⁵ Rather than reflecting the vindication of proslavery aspirations, equally rooted in the constitutional tradition, these conservative opinions represent misguided judicial efforts to hold together increasingly disharmonic constitutional orders. As an interpretative paradigm, the concept of constitutional disharmony is helpful in explaining the ways in which the English and American constitutions contained internally discordant elements while nonetheless emphasizing the “primacy of particular aspirations within an ongoing dynamic of disharmonic contestation.”¹⁶ The increasing disharmony in the constitutional orders did, of course, reflect competing constitutional visions, but it would be a mistake to treat all constitutional visions as equal or to fail to discriminate between those principles which are fundamental and those which are aberrational to the foundations of Anglo-American constitutionalism. In reality, the fundamental principles undergirding the English and American claims to constitutional liberty offered a strong normative challenge to the existing institution of chattel slavery.

Anglo-American Constitutionalism and the Challenge of Slavery

If English and American constitutional thought rests on any shared constitutional principle, it is that subject and sovereign alike are to be ruled by the law. In the thirteenth century, the English jurist and legal commentator Henry de Bracton wrote, “For the King ought not to be under man but under God and under the law, because the law makes the king. Let the King therefore bestow upon the law what the law bestows upon him, namely dominion and power, for there is no King where will rules and not law.”¹⁷ Bracton no doubt had in mind some of the recent provisions of Magna Carta (1215), which provided a formal codification of this principle. The rebel Barons who imposed the Magna Carta on King John were animated by a desire to limit arbitrary executive power, and in Chapter 39 of that document they secured a promise from the Monarchy that “No free man shall be arrested or imprisoned, or disseised or outlawed or exiled or in any way victimised, neither will we attack him or send anyone to attack him, except by the lawful judgment of his peers or by the law of the land.”¹⁸ In the fourteenth century, Chapter 39 was redrafted by Parliament to apply not only to free men but to any man “of whatever estate or condition he may be,” and this process of reinterpretation continued throughout the next several centuries as Parliament expanded “the Charter’s special ‘ liberties’ for the privileged classes to general guarantees of ‘liberty’ for all the king’s subjects.”¹⁹

The principle that individuals ought not be “in any way victimised” but “by the law of the land” was given legal force in the common law through the writ of habeas corpus, which allowed an individual to legally challenge the grounds of his detention or molestation. According to Blackstone, that Great Charter in its variety of manifestations throughout the years “was for the most part declaratory of the fundamental laws of England.”²⁰ Furthermore, the Charter’s principle of individual liberty was so well enshrined in the canons of jurisprudence operative in the American colonies (and later states) that the U.S. Constitution simply assumed the principle was operative in the newly created federal regime as well.²¹ Article III provided that “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it,”²² and, in a concession to the Anti-Federalists, the Fifth Amendment to the Constitution succinctly reiterated the principle behind habeas corpus review: “No person … shall be deprived of life, liberty, or property without due process of law.”

As Bernard Bailyn notes, “The colonists’ attitude to the whole world of politics was fundamentally shaped by the root assumption that they, as Britishers, shared in a unique inheritance of liberty.” That liberty was secured to them by the English Constitution, which was “the constituted – that is, existing – arrangement of governmental institutions, laws, and customs together with the principles and goals that animated them.”²³ It is true that legal commentators such as Bracton, Coke, and Blackstone had identified the common law with principles of natural law, and a “belief that a proper system of laws and institutions should be suffused with, should express, essences and fundamentals – moral rights, reason, justice – had never been absent from English notions of the constitution.”²⁴ Nevertheless, English constitutional thought also had never considered the laws and institutions of England as something theoretically distinct or separate from the English Constitution. As the colonists began enumerating grievances against those very English laws and institutions (often invoking the authority of natural law), it soon became evident that it would be politically foolish and perhaps theoretically misguided to ground their claim to rights in the English Constitution itself.

Gordon Wood argues that “[b]y 1776, the Americans had produced out of the polemic of the previous decade a notion of a constitution very different from what eighteenth century Englishmen were used to – a notion of a constitution that has come to characterize the very distinctiveness of American political thought.”²⁵ In their rhetorical battle with the Crown, Americans attempted to separate “principles from government, constitutional from legal.” This new understanding of a constitution outlived the circumstances that gave rise to it, and, in 1787, the delegates to the constitutional convention endeavored to lift some principles out of the political environment by enshrining them as fundamental or higher “ constitutional” laws. The constitution was no longer synonymous with the government, and ordinary legislation now could be measured against some set of enshrined higher background rules. In place of the traditional understanding of a constitution, the Americans championed “a deliberately contrived design of government and a specification of rights beyond the power of ordinary legislation to alter.”²⁶ This new understanding is what modern commentators have broadly come to call “ constitutionalism” as opposed to the older understanding, which merely connoted an experiential constitution – or institutional arrangement – of government.

Englishmen, of course, took pride in their own particular constitution. It was through the English Constitution, after all, that the principles of Magna Carta were continually reaffirmed. Blackstone had observed that “[t]he absolute rights of every Englishman … are coeval with our form of government,” and the liberties of Englishmen were associated principally with “that great charter of liberties.”²⁷ Indeed, that charter of liberties inculcated principles that were identical with the principles undergirding the new American constitutionalism: limited government, supremacy of the rule of law, and condemnation of arbitrary power. But the “ security of rights under the old constitutional system had been custom,” and when Parliament began to move against ancient custom, the American colonists perceived that their rights were not secured by any fundamental restraint on the will of Parliament.²⁸

That narrative, at least, informed the polemic issued against the English Constitution by the Americans. James Wilson, one of the early expounders of American law, summarized this position when he wrote, “The order of things in Britain is exactly the reverse of things in the United States. Here, the people are masters of the government. There, the government is master of the people.”²⁹ In his opinion in Chisholm v. Georgia (1794), Wilson explained that the new American science of jurisprudence rested on a fundamentally different foundation than had the jurisprudence of the mother country: “To the Constitution of the United States the term SOVEREIGN, is totally unknown.”³⁰ In England, it was said that “the King or sovereign is the fountain of Justice,” but “another principle, very different in its nature” was operative in America. That principle, according to Wilson, was that “The sovereign, when traced to his source, must be found in the man.”³¹ The people, in their corporate capacity, were to be sovereign over the government, and, as Hamilton argued in Federalist no. 78, the will of the people was “declared in the constitution” such that this declaration enjoyed preeminence over “the will of the legislature declared in its statutes.”³²

Despite the American parry against the doctrine of Parliamen tary sovereignty, however, the substantive principles of the English Constitution were still understood by Englishmen to consist of those same principles underlying American constitutional thought. The mode of government operation was different, to be sure: In England, “Every act of Parliament was in a sense a part of the constitution, and all law, customary and statutory, was thus constitutional.”³³ Yet the rights of Englishmen, established and secured by Parliament, were nevertheless understood to be “founded on nature and reason” even if they were at times existentially denied and left insecure, “their establishment, excellent as it is, still being human.”³⁴ The principal disagreement between the American and English jurists, then, was a disagreement on how effectively to secure those rights, founded on nature and reason, through the creation and maintenance of a constitutional order.

For both Americans and Englishmen, the existence of legal slavery provided a challenge to the fundamentals of their own constitutional thought. The principles of African slavery, as it was found in the English colonies, including the American colonies, were diametrically opposed to Anglo-American constitutional principles. This particular system of chattel slavery established the private despotism of one man over another; the rule of private human will instead of the rule of law; and the expansion and enlargement of arbitrary power. If a system of chattel slavery was to subsist under a regime of liberty, then the questions properly arose: Are the rights to liberty merely conventional rights, inhering in Englishmen qua Englishmen (or Americans qua Americans), or do some fundamental rights inhere in man as such? Further, if there are rights that inhere in man qua man, do these rights apply to Africans, and, if so, are these rights justiciable in courts of law? These questions uncover a tension between universal and particular elements at work in the English and American claim to liberty. To maintain a system of chattel slavery and simultaneously assert a constitutional right to be free from arbitrary exercises of force, one had to either deny the humanity of the slave or deny the relevance of human status to the claim of liberty under the Constitution. In this respect, one could deny the Africans’ participation in the universal rights of man, altogether deny the existence of any such universal rights, or concede that universal rights do apply to the Africans while nevertheless asserting that such rights are not secured by the particular constitution in question.

It is this tension between the universal and the particular that Blackstone attempted to navigate in that section of his Commentaries titled “Of Master and Servant.” “The principle aim of society,” Blackstone wrote, “is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature.”³⁵ Those absolute rights inhering in man by nature served to underpin that spirit of liberty, which, Blackstone declared, “is so deeply implanted in our constitution, and rooted even in our very own 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 a freeman.”³⁶ In a subsequent edition, Blackstone qualified his teaching on natural liberty with a concession that a master may have certain rights to a slave’s labor under the English Constitution, although he still maintained that the Constitution afforded certain legal protections to all English residents, including slaves.³⁷ Perhaps Blackstone had in mind some limited or qualified right of a master to the services of a slave when he wrote that “pure and proper slavery does not, nay cannot, subsist in England: such I mean, whereby an absolute and unlimited power is given to the master over the life and fortune of the slave.”³⁸

The imperial relationship between England and the American colonies further complicated Blackstone’s analysis. The esteemed lawyer insisted that the common law of England was inoperative in the American colonies, “they being no part of the mother country, but distinct (though dependent) dominions,”³⁹ and, in a later edition of his Commentaries, Blackstone maintained that rights of colonial masters were left untouched by the antislavery principles underpinning the English Constitution.⁴⁰ Still, American jurists such as James Wilson taught (quite apart from Blackstone) that the entire basis of American law rested on an understanding that “man, fearfully and wonderfully made, is the workmanship of his all perfect Creator,” and that arbitrary power degrades “man from the prime rank, which he ought to hold in human affairs.”⁴¹ Wilson considered man, in his individual capacity, to be central to the construction of American law. “A state,” Wilson reflected, “… is the noblest work of Man; But Man himself, free and honest, is, I speak as to this world, the noblest work of God.”⁴² Wilson also understood the inconsistency of the primacy of man in the constitutional order with the existence of African slavery, having approvingly quoted the abolitionist French statesman Jacques Necker in the Pennsylvania Ratifying Convention, saying to his fellow legislators that “we pride ourselves on the superiority of man, and it is with reason that we discover this superiority in the wonderful and mysterious unfolding of the intellectual faculties; and yet the trifling difference in the hair of the head, or in the color of the epidermis, is sufficient to change our respect into contempt.”⁴³ Like Blackstone, however, Wilson perceived his own Constitution as a repudiation of the principles on which the institution of slavery rested: The clause in Constitution dealing with the importation of persons into the states, Wilson asserted, lay “the foundation for banishing slavery out of this country.”⁴⁴

The antislavery sentiments of eminent and formative jurists such as Blackstone and Wilson notwithstanding, the fact remained that the rights of a master over his slave had long been customarily recognized in the British Empire, and compromises with the slave interest were imbedded – as scaffolding perhaps, but imbedded nonetheless – in the fundamental law of the American regime.⁴⁵ After the legislative criminalization of the transatlantic slave trades in the United Kingdom and the United States in the early nineteenth century, the tension between the universal rights of man and the conventional rights of particular men became quite pronounced through legal battles over the status of captured or imported slaves. In several cases, lawyers for plaintiffs suing for their own freedom urged the courts to consider Mansfield’s judgment in Somerset as establishing the principle on which the slaves asserted their claim to liberty. In The Antelope (1825) and The Slave Grace (1827), judges recognized that there was a tension between the conventional rights of the master and the natural rights of the slave, but nevertheless asserted that they were compelled by “the path of duty” – to use a phrase from Marshall’s opinion in The Antelope – to vindicate the conventional rights of the slave owners.

Antislavery Constitutionalism after the Closing of the Slave Trades

A half-century after the judgment in Somerset v. Stewart, the Anglo-American constitutional debate over slavery continued to occur within the framework established by Mansfield. A series of legislative enactments concerning the slave trades in England and the United States had brought forth novel legal cases that required judges to decide whether anything but positive law could support the status of slavery. Relying on Mansfield’s reasoning in Somerset, antislavery lawyers argued that slaves became free by virtue of their temporary residence in jurisdictions that did not explicitly protect slavery. As freemen, it was then argued, these persons could not be forcibly transported into another jurisdiction for the purposes of dealing with them as slaves. In the absence of specific legislative provisions guiding the particularities of these cases, English and American jurists considered questions of fundamental law as well as what was ambiguously termed the “law of nations.”⁵⁷ Often these considerations required looking beyond any particular text to the animating principles of the Constitution – or, perhaps more broadly, to the animating principles of modern constitutionalism.

In the fifty or so years that had passed since Mansfield issued his decision in Somerset, there was a clear line of legislative and judicial activity in England and the United States tending toward an expansion of liberty for human beings as such.⁵⁸ In March 1807, both the British Parliament and the U.S. Congress passed legislation that criminalized the transatlantic slave trades.⁵⁹ The earliest judicial decision coming out of this legislation was the English case of The Amedie in 1810.⁶⁰ Following the logic of Somerset, Sir William Grant wrote for the high court of admiralty that the slave trade – because of its contrariness to natural law – “cannot, abstractedly speaking, be said to have a legitimate existence.”⁶¹ Trafficking in slaves was thus held to be prima facie illegal unless the claimant could prove that his title or right to property in a certain slave was expressly declared by the “ particular law of his own country.”⁶² According to Grant, then, the judicial posture on claims for the “restoration of human beings” was to be in favor of liberty unless it could be unequivocally shown that the individuals were being held as slaves under some expressly decreed provision of local municipal law. This principle was reiterated by Sir William Scott, Lord Stowell, in The Fortuna (1811) and The Donna Marianna (1812) before entering American constitutional jurisprudence through Joseph Story’s opinion in La Jeune Eugenie (1822).⁶³

Justice Story’s antislavery views were well known long before his hearing of this case.⁶⁴ Before a Boston Grand Jury in 1819, Story had proclaimed:

It perhaps is not surprising, then, that Story condemned the nature of the slave trade with forceful rhetoric in his La Jeune Eugenie opinion. The slave trade, Story asserted,

This litany of evils was relevant precisely because Story assumed the premise of Mansfield’s judgment that a practice contrary to natural law could not obtain a lawful existence unless it was established by positive legislation. In this case, Story was urged by the defendant’s counsel to look to “the law of nations” for guidance in his decision. In an application of Somerset’s principle to international law, Story argued that the law of nations rested on “the eternal law of nature” and found its bearings from “the general principles of right and justice.” Whatever might be “deduced from the nature of moral obligation” was part of international law unless those moral obligations were “relaxed or waived by the consent of nations.” In other words, the judicial consideration with respect to international law and slavery remained the same as it was with respect to domestic slavery: Nothing could be suffered to support it except positive legislation. Story’s diatribe against the evils of slavery was all by way of showing that slavery was inconsistent with the “nature of moral obligation” under the “eternal laws of nature” such that it could not be said to be countenanced by international law in the absence of a specific treaty provision.⁶⁷

As a constitutional matter, Story’s argument in La Jeune Eugenie was consistent with the teachings of other antislavery American jurists, such as James Wilson. The classical understanding of the foundation of American constitutional government was that the people at large grant to the government certain limited and enumerated powers. To use Jefferson’s language from the Declaration of Independence, governments derive their just powers from the consent of the governed, and any legitimate exercise of government power ultimately rests on a normative understanding of man’s equality under “Nature and Nature’s God.” For Wilson, this constitutional teaching marked the beginning of an entirely new science of jurisprudence, which rested on an understanding that “States and Government were made for man,” and correlatively that a State “derives all its acquired importance” from man’s “native dignity.”⁶⁸ The principles of this new science of jurisprudence challenged the very existence of a system of chattel slavery. As long as slavery was given a legal basis by the slave codes of local municipalities under the Constitution, it was to be judicially tolerated, but, according to Wilson, the presuppositions underpinning the Constitution presented “the pleasing prospect that the rights of mankind will be acknowledged and established throughout the Union.”⁶⁹

While England’s Constitution rested on the disparate foundation of parliamentary sovereignty, there, too, in conjunction with legislative provisions circumscribing the slave trade, was a development of constitutional claims based on native human dignity. Sir William Grant, in The Amedie, reflected:

Grant reiterated the logic of Somerset that a right to ownership of or traffic in another human being is illegitimate when considered in the abstract, even though it nevertheless may be sanctioned by positive legislation. Therefore, consistent with this doctrine, a libellant applying for the restoration of “human beings … carried unjustly to another country for the purpose of disposing of them as slaves” bore the burden of showing “that by the particular law of his own country he is entitled to carry on this traffic.”⁷¹ The burden of proof now rested on the slave master, and the judicial presumption was a presumption in favor of liberty.

The Conservative Impulse of the 1820s

The logic of the principle posited by Mansfield in the Somerset decision had taken such shape by 1824 that Justice Best, writing in Forbes v. Cochrane and Cockburn, could assert uncontroversially that Somerset had established “on the high ground of natural right” that “slavery is inconsistent with the English constitution.”⁷² In the American context, as well, it was generally recognized that slavery was – as Justice Story wrote in La Jeune Eugenie – a practice that blunted “the interests of universal justice.”⁷³ It was also telling that the lawyer representing the slave traders did not attempt to contradict Story’s assertion: “[A] justification of slavery, or the slave trade,” he said, “is not intended. I concur entirely in the views of the libellant’s counsel on these subjects; and readily acknowledge, that at no time, nor at any occasion, have the noble and honorable sentiments, which spring up in cultivated minds, been more eloquently and ably impressed, than in this case.” But, he went on to admonish, “[i]n deciding new and unprecedented cases, some consideration is due to expediency and convenience…. By the judgment which the libellants desire to have given, in the present state of the world, the progress of assent to effect abolition may be seriously retarded.”⁷⁴ The argument put to Justice Story against judicially extending the logic of the principles growing out of the Somerset decision was thus an argument of expediency – a desire not to halt the progress of humanity by pouring the new wine of abolition too quickly into the old wineskin of constitutional compromise. Perhaps abstract constitutional principles had advanced in cultivated minds, but the actual constitution of at least one part of society was nevertheless very much committed to preserving the institution of slavery. Indeed, the proper maintenance of constitutional order amid such bifurcated interests was a real consideration, and if moving the principles of liberty forward too quickly at the judicial level was a serious danger to the constitutional order, given the present state of the world in the early 1820s, then a judicial remedy to the danger of progress was initiated by Chief Justice Marshall’s opinion in The Antelope.

The case of The Antelope involved a pirate ship carrying 280 Africans previously captured from American, Portuguese, and Spanish vessels, which was found off the coast of the United States and brought into Savannah for adjudication. Portuguese and Spanish claimants initiated the suit under a treaty provision in which the United States agreed to return property rescued from pirates. The U.S. Attorney General, contra the Spanish and Portuguese, represented the Africans “as having been transported from foreign parts by American citizens, in contravention to the laws of the United States, and as entitled to their freedom by those laws, and by the law of nations.”⁷⁵ When oral arguments began before the Supreme Court, Francis Scott Key, the government lawyer appointed to represent the Africans, laid out an argument that had become familiar in similar cases. Key argued that there was a substantive difference between the onus required for proving legal ownership of things on the one hand and proving legal ownership of men on the other. “In some particular and excepted cases, depending upon the local law and usage, [men] may be the subjects of property and ownership; but by the law of nature all men are free.”⁷⁶ To legally claim title to the Africans, then, the plaintiffs had to demonstrate more than “mere possession”; that is, they had to “show a law, making such persons property, and that they acquired them under such law.”⁷⁷ After referencing the opinions in The Amedie, The Fortuna, The Donna Marianna, and La Jeune Eugenie, Key asserted that where the determinative law suffered from any ambiguity, “the fair abstract question arises, and their claim may well be repudiated as founded in injustice and illegality.”⁷⁸ Finally, Key argued that even if some of the Africans were the legal property of the claimants under the laws of the United States, still, as the Spanish and Portuguese were unable “to identify their own, they are not entitled to restitution of any as slaves, since among them may be included some who are entitled to their freedom.”⁷⁹

John Berrien, the sitting U.S. Senator from Georgia who served as the lawyer representing the Spanish and Portuguese slave traders, attacked Key’s claims by offering a constitutional argument that protected the right to property in a slave as fundamental, denied the existence of universal rights, and denied the competence of a court to consider arguments based on private notions of morality. “For more than twenty years this traffic was protected by your constitution, exempted from the whole force of your legislative power; its fruits yet lay at the foundation of that compact…. Paradoxical as it may appear,” Berrien asserted, the slaves “constitute the very bond of your union.”⁸⁰ Whatever one’s “peculiar notions of morality,” a court was to be guided by the law, and, in a reversal of the principle in Somerset, Berrien maintained that the slave trade was “not contrary to the positive law of nations; because there is no general compact inhibiting it.”⁸¹ Rather than taking a stance in favorem libertatis, the legal presumption, according to Berrien, tended in favor of slavery unless the right to slavery was specifically circumscribed by positive legislation.

Of course, the right in question was not construed as a right to slavery as such but rather as a right to property. As Marshall articulated in the opening lines of his opinion, this was a case in which “the sacred rights of liberty and property come in conflict with each other.”⁸² But in so depicting the point of conflict, Marshall assumed an answer to the very question in controversy; for the argument made on behalf of the Africans was that a human being, by his very nature, was not a legitimate species of property (whereas he was the bearer of rights, including, presumably, the right himself to own property). U.S. Attorney General William Wirt, arguing alongside Key on behalf of the Africans, asserted “that no legitimate right can grow out of a violation” of the principles of “justice and humanity,” and, foreshadowing an argument later made by Abraham Lincoln, Wirt summarily declared that it was impossible to “derive a right, founded upon wrong.”⁸³ Under this construction, any alleged conflict between these two rights seemed chimerical at best.

Marshall as well conceded that “every man has a natural right to the fruits of his own labour … and that no other person can rightfully deprive him of those fruits, and appropriate them against his will, seems to be the necessary result of this admission.”⁸⁴ Yet by admitting that slavery had no rightful basis in the abstract, the conflict between the two “sacred” rights articulated by Marshall appeared to be a conflict between the universal rights of the slaves on the one hand and the conventional rights of the slave owners on the other. The word sacred – with all of its religious connotations – was perhaps not an appropriate adjective for the rights in question; yet there was a manner in which the universal and the particular elements at play conjured sentiments of a religious fervor, and, according to Marshall, any judicial resolution of a case involving these competing claims had to be founded on established custom. “Whatever might be the answer of a moralist to this question,” Marshall proclaimed, “a jurist must search for its legal solution, in those principles of action which are sanctioned by the usages, the national acts, and general assent, of that portion of the world in which he considers himself as a part, and to whose law the appeal is made.”⁸⁵

By making custom the sole standard of international law, Marshall jettisoned the part of Story’s La Jeune Eugenie opinion that had argued that custom was determinative only “in things indifferent or questionable” that were not in contravention of “the general principles of right and justice” – unless those principles of right and justice were specifically relaxed by international statute (i.e., by treaty).⁸⁶ No one involved in The Antelope claimed that the Spanish ought not to be able to reclaim their property under the explicit treaty provision, however. What was central to this case was the question, what types of things legitimately count as property? Under international custom, Marshall declared, slaves were a legitimate species of property because ownership in slaves was not yet universally proscribed. Accordingly, Marshall approved the Circuit Court’s decision along with the Circuit Court’s remedy, which treated the individual Africans as fungible goods – dividing them up by the proportion claimed by Spain (93/280) while making adjustments for the 114 who had died while in legal custody in Georgia.⁸⁷

James Kent, in his Commentaries on American Law, later described the progression from the English slave trade cases in the early nineteenth century to the American cases heard by Story and Marshall in the 1820s. “In the case of La Jeune Eugenie,” Kent concluded:

The English correlate of the Antelope decision had been handed down by Lord Stowell several years previously in a case involving a French vessel captured by a British cruiser off the coast of Africa. Limiting and modifying his own precedent in The Fortuna and The Donna Marianna, Stowell declared in the case of Le Louis (1817) that the law of nations rested on a “legal standard of morality,” which was “fixed and evidenced by general and ancient and admitted practice.” Still, wishing not to be “ misunderstood or misrepresented,” Stowell insisted that he was no “professed apologist for this practice [of slavery].” Yet, to “press forward to a great principle by breaking through every other great principle that stands in the way of its establishment … in short, to procure an eminent good by means that are unlawful; is as little consonant to private morality as to public justice.”⁸⁹ As Henry Wheaton later reported, Stowell’s decision in Le Louis rested on the principle that “no one nation had a right to force the way to the liberation of Africa, by trampling on the independence of other states.”⁹⁰ Search of foreign vessels in times of peace threatened to strain relations among European nations, and Stowell was cautious about applying natural principles of justice to foreign citizens in English courts of admiralty.

Beyond the difficult questions of international relations implicated by the regulation of the slave trade, the criminalization of the practice also brought forth novel questions of jurisprudence, directly touching on the principle laid down in Somerset. In a letter to Joseph Story, Stowell reflected on one such case:

A similar scenario had confronted Stowell in a case decided the previous year when Grace, a domestic slave under the laws of Antigua who had nonetheless resided with her master in England for eleven years, was detained by customs authorities upon her return to Antigua for having been illegally imported in contravention of the Slave Trade Act of 1807. The claim made on behalf of Grace’s freedom was that the laws of England did not protect slavery; that Grace therefore had been divested of her status as a slave when she moved from England; and that as a freewoman she could not be imported into any jurisdiction for the purposes of dealing with her as a slave. The question of this case, again, was essentially whether anything could be suffered to support slavery but positive law, and Grace’s lawyers urged the court to treat the principle posited in Somerset, in conjunction with the legislative abolition of the slave trade, as protecting Grace’s freedom under the laws of England.

As Stowell recognized in his judicial opinion, “this notion of a right to freedom by virtue of a residence in England is universally held out as a matter which is not to be denied.”⁹² But, Stowell contended, the nature and extent of that freedom was at issue, and it had been established by custom and usage that “residence in England conveys only the character so designated during the time of that residence, and continues no longer than the period of such residence.”⁹³ In other words, the laws of England offered a dispensation of freedom that was temporarily sustained, only because the means of maintaining chatteldom were not “ practicable” on the Island, and this understanding was corroborated by the fact that colonial masters actually did bring their slaves with them to England when they traveled, and they frequently returned home with the master-slave relationship intact.⁹⁴

To maintain this position, Stowell dismissed Mansfield’s claim regarding the odious nature of slavery as a mere “obiter dictum that fell from that great man.” Additionally, rather than undertaking a consideration of those abstract, universal principles asserted by Mansfield, Stowell maintained that “ancient customis generally recognized as the just foundation of all law,” and that those principles buttressing the English claim to liberty were conventional principles that applied only to particular people.⁹⁵ “This cry of ‘Once free for an hour, free forever!’” Stowell wrote, “… is mentioned as a peculiar cry of Englishmen as against those two species of property [i.e., villenage and slavery]. It could interest none but the people of this country: and of these only the masters.”⁹⁶ In conclusion, Stowell declared, “It may be a misfortune that she was a slave” – a sentiment that would have been seconded by Marshall – “but being so, she in the present constitution of society had no right to be treated otherwise.”⁹⁷

Constitutionalism Amid “What is Passing in the World”

From a comparative perspective, both Marshall’s and Stowell’s opinions appear to represent a stark limitation on the efficacy of universal principles in constitutional adjudication. Neither opinion, for example, denied the validity of the principle cited by Marshall that “every man has a natural right to the fruits of his own labour.” Nor did they deny that such a principle applied universally, and Stowell went so far as to declare himself a “friend of abolition generally.” Whereas the substance of Stowell’s opinion would seem markedly inconsistent with such rhetoric, a conservative decision in such a novel case is perhaps consistent with some of the principles undergirding the English Constitution, particularly the principle of Parliamentary sovereignty and the high regard for English custom. Indeed, Stowell’s opinion in The Slave Grace was soon rendered irrelevant by the 1833 Parliamentary act abolishing slavery throughout the British Empire. However, the judicial remedy seemingly approved by Marshall – a simple lottery system – was particularly inconsistent with the logic of American constitutionalism and the American constitutional emphasis on, as Wilson put it, “the prime rank of man in human affairs.” That two similar cases limiting the applicability of universal principles – after a series of cases tending in the opposite direction – would emerge in different constitutional contexts also reinforces the notion that there are important extra- constitutional factors involved in the construction and application of legal rules and principles. Nevertheless, the articulation of constitutional principles at the judicial level plays a formative role in constitutional maintenance and constitutional change, and considerations of this sort led Stowell and Marshall to render decisions tending toward the maintenance of a tension implicit in a fragile constitutional order.

In his argument before Marshall in The Antelope, Attorney General Wirt urged the Court not to “shut their eyes to what is passing in the world,” and he asserted that the “Africans stand before the Court as if brought up before it upon a habeas corpus.”⁹⁸ In so doing, Wirt brought the logic of Anglo-American constitutionalism full circle by drawing on the principles behind habeas corpus review. If the Africans were able to “stand before the Court as if brought up … upon a habeas corpus,” the only reason was because judicial protection from arbitrary force was a protection that ought not to have depended on one’s status as an Englishman or an American but simply on one’s status as a man. What evidence, then, should have been required to prove that a man was held by the law of the land and not by mere arbitrary force? As Key took up this argument, he suggested that it surely was not “mere possession” that made one’s claim over another rightful. For other goods and chattels, he conceded, mere possession may have been all that was required to demonstrate ownership, “[b]ut these are men … and by the law of nature all men are free.”⁹⁹ In so linking the plight of the Africans with the logic of Anglo-American constitutionalism, Wirt and Key sought constitutional recognition of the principles at work in “the great moral and legal revolution which is now going on in the world.”¹⁰⁰

Such a revolution, however, was not the only thing going on in the world. The Americans were undergoing a heated domestic debate over the institution of slavery, and there was much anxiety about its final resolution. The opposing factions had been quieted, for a moment, by Henry Clay’s Missouri Compromise, but Thomas Jefferson acknowledged the residual tension in the bi-sectional arrangement when he wrote: “This momentous question, like a fire bell in the night, awakened and filled me with terror. I considered it at once as the death knell of the Union … A geographical line, coinciding with a marked principle, moral and political, once conceived and held up to the angry passions of men, will never be obliterated; and every new irritation will mark it deeper and deeper.”¹⁰¹ The Missouri Compromise held together a tenuous union of desultory commitments within a larger constitutional order, and from one perspective, “any cause which focused feelings on the rights of slaves could be seen as inflammatory.”¹⁰²

The cause in the world that particularly focused feelings on the rights of slaves was legislation passed in America and England that heightened penalties for slave trading and declared the slave trade itself to be piracy – a crime that carried with it a sentence of death. The 1820s was also the era of the Monroe Doctrine, and any case dealing with the slave trade involved “difficult issues of visitation and search of foreign vessels in time of peace.”¹⁰³ On the English side, antislavery legislators had turned their attention to the abolition of slavery in the English colonies, and there were powerful factions and vested interests opposing any such move. It is within these contexts that the decisions in The Antelope and The Slave Grace emerge not as manifestations of illiberal constitutional theories – valuing or defending slavery for its own sake – but as conservative judicial attempts to preserve increasingly weakened constitutional orders.

In a letter to Joseph Story, which was written as a sort of apology for his opinion in The Slave Grace, Lord Stowell explained that English politics were “in a very uncomfortable state, our revenue deficient, our people discontented, and a strong spirit of insubordination prevailing in the country, and the sense of religious obligation very much diminished.”¹⁰⁴ While Stowell proclaimed himself to be a “friend of abolition generally,” he emphasized practical considerations in effecting abolition. The principles behind the argument that would have Grace declared free, Stowell worried, might have induced other slaves “to try the success of various combinations to procure a conveyance to England for such purpose; and, by returning to the colony in their newly acquired state of freedom, if permitted, might establish a numerous population of free persons, not only extremely burdensome to the colony, but, from their sudden transition from slavery to freedom, highly dangerous to its peace and security.”¹⁰⁵ As Stowell rightly recognized, the logic of a Court’s opinion – whatever that opinion may be – will rest on principles that ultimately travel far beyond the particular case at hand.

Although these decisions demonstrate the limitations of abstract constitutional principles in overcoming concrete, practical considerations, they also demonstrate the importance of the ways in which interpreters construct those very constitutional principles. In his response to Berrien’s accusation that slavery was at the very foundation of the American Constitution, Key asserted:

America’s relationship with slavery was more convoluted than Key admitted, but by recognizing competing forces within the American constitutional tradition, Key was able to emphasize those constitutional principles working against the slave interest.

It may have been ill-conceived for a nineteenth-century jurist to let the heavens fall for the sake of justice, but judges did serve as guardians and tutors in the constitutional order, and, insofar as those principles working against the slave interest coincided with the fundamental principles of Anglo-American constitutional thought, a judicial posture tending toward the establishment and preservation of universal liberty was necessary for the maintenance of that particular constitutional heritage that finds its expression in the rule of law. As the conservative decisions in the 1820s confirm, however, there was a deep tension, first noted by Mansfield, between the universal principle of liberty and the institution of slavery, and this tension emerged after the 1820s with a more nuanced character. The election of Andrew Jackson in 1828 precipitated the increased democratization of American institutions while, perhaps paradoxically, an invigorated and unashamedly proslavery constitutionalism gained prominence on the national scene. The ranks of northern abolitionists grew, as well, as William Garrison and other antislavery activists expounded proslavery interpretations of the American Constitution, which they summarily denounced as “the most bloody and heaven-daring arrangement ever made by men for the continuance and protection of a system of the most atrocious villainy ever exhibited on earth.”¹⁰⁷

Within this milieu, John Quincy Adams – that “Favored Son of the Revolution” – emerged as an ideological defender of the antislavery constitutional tradition during his postpresidential career in the U.S. House of Representatives. In a case remarkably similar to The Antelope, Adams was called on in 1841 to serve as counsel for a group of Africans who had come under the protection of the federal court system. Critically engaging John Marshall’s Antelope opinion, Adams laid out a theory of constitutional disharmony that pitted “fact against right” while nonetheless maintaining an antislavery reading of the American Constitution. In Adams’s struggle to introduce greater harmony between the principles undergirding American constitutionalism and the actual practices of American institutions, one can see, moreover, both the influence of the theoretical framework bequeathed by the English common law and the seeds of the antislavery arguments that would be taken up and defended, a generation later, by Abraham Lincoln and the burgeoning Republican Party.¹⁰⁸