WHAT PASSES AS A LIBERAL:

JOSHUA GILES CLARKE OF MISSISSIPPI, SUPREME COURT JUDGE AND CHANCELLOR

 

J. Calvitt Clarke III

Jacksonville University

 

http://users.ju.edu/jclarke/jgclarke.htm

 

Sadly, best viewed with Microsoft Explorer

 

Last updated, January 24, 2013

 

 

Joshua Giles Clarke, one of Mississippi’s prominent early citizens, typified some important trends in the young state’s history.  And while never losing the respect of his contemporaries, he also partially broke with them on one important issue—slavery.  Clarke would have set the state’s courts on a more humane path rather than the one actually taken before the Civil War.

 

 

ARRIVAL IN MISSISSIPPI AND MARRIAGE INTO THE CALVIT FAMILY

Clarke was born about 1780 in Maryland and then moved to Pennsylvania.[1]  Despite his notable legal career in Mississippi, nothing more is known of his early life, other than that he “received a competent education”[2] in Pennsylvania before making his way to the Mississippi Territory.  Despite rising to prominence in a field reliant on letters, his papers have vanished and only two of his written judicial opinions exist.[3]

 

Clarke joined many other white immigrants from states north and south as well as from other nations who were seeking their fortunes in Mississippi, where cotton and slavery were becoming dominate notes.  Labor was essential for the state’s agricultural economy, and slave labor was the common thread weaving together the early Mississippi frontier and plantation societies.  By 1816 in Mississippi, there were 45,085 free whites and 30,061 slaves.  The whites, at least, often found swift, upward mobility.[4]

 

Among those hoping to climb high in society, many lawyers immigrated to the territory.  Although informally trained, most had met the minimum qualifications for entering the bar in their home states before going to Mississippi, where the law had become a profitable profession.  Mississippi’s society was energetic and violent—fine fodder for attorneys.  Further, land disputes arising from conflicting British, Spanish, and Georgian claims were common and profitable for those practicing law.  Attorneys found another source of prosperity in the efforts of early courts to reconcile the conflicting rules of civil law and English common law.[5]  As their Mecca, between 1803 and 1805 attorneys in Natchez filed 144 lawsuits.  Put another way, statistically one of every ten people in Natchez faced a lawsuit—some surely several times.[6]

 

It is not known precisely how or when Clarke arrived in the Mississippi Territory, but he was clearly part of this larger lawyerly migration.  As early as January 7, 1804, he presented himself before Judge Peter Bryan Bruin at Bruinsburgh in Claiborne County.  Clarke satisfied the jurist the he possessed “a sufficient stock of legal knowledge to entitle him to place at any Bar, in any Court of Justice, in this Territory.”  Judge Bruin also noted that the territory’s former Chief Justice William McGuire had written him “handsomely” in describing Clarke, his rectitude, and general deportment.[7]  He practicing law in Mississippi before the end of November 1804 when he filed an affidavit for the Gideon Matlock estate.  On August 11, 1806, the court appointed him administrator de bonis non[8] for that estate, and as late as 1825, he was still working on it.[9]

 

Soon Joshua G. Clarke immersed himself the Mississippi’s political life.  He joined the “most respectable inhabitants of Claiborne county” on April 25, 1805 to compose a petition to Robert Williams, the newly appointed Governor of the Mississippi Territory.  They declared their “homage” and “respect” and their hope that he would eschew the crass political partisanship of the immediate past governor—after all, we “are all Federalists, all Republicans.”  They trusted that “Merit, capability, and personal worth . . . will be made the touchstone to promotion.”  Wm. M’Caleb and Joshua G. Clarke on May 20 presented the petition to Governor Williams, who responded positively.  The three sat down to a prepared dinner and exchanged friendly toasts.[10]

 

Clarke also quickly became enmeshed in Mississippi’s slave-owning society.  On November 9, 1807 in Natchez, Adams County, he married Martha (Patsey) Calvit of Jefferson County.  She was the daughter of Joseph Calvit, a member of one of Mississippi’s early families who had migrated to the territory after the American Revolution while it was still under Spanish control.  Her family had become prominent plantation owners, slaveholders, and political figures.  Frequently noted in the Natchez Court Records, the humdrum exchange of property—land, horses, slaves, and more—made up the rhythm of their private and business lives.  Because of their many civil entanglements over money and property, presumably the Calvits welcomed the young attorney Clarke into their midst.[11]

 

CLARKE’S RISE IN SOCIETY

As had his in-laws, Clarke rose rapidly in Mississippi’s society.  Politically, he was a Jeffersonian Republican.  By 1809, he was influential enough that he counted among the seventeen attorneys writing President James Madison to oppose the appointment of George Poindexter, a rising politician and fellow Jeffersonian Republican, as a territorial judge because he was unqualified.[12]  And in July 1817, Clarke became a founding member and first secretary of Washington Lodge of the Free Masons in Port Gibson.[13]

 

He next represented Claiborne County in the territorial legislature, and in December 1816 he was among those legislators who petitioned the United States Congress to create two states—Mississippi and Louisiana—in the Mississippi territory.[14]

 

Clarke then represented Claiborne in the Constitutional Convention convened on August 15, 1817 to form the State of Mississippi.  Visible and active, he “was one of the best legal minds in the Convention and did faithful service by his wise advice and counsel.”[15]  The resulting constitution, “the least democratic of . . . any state admitted after the war of 1812,”[16] enshrined the intent of its founders, recent immigrants from the North and South.  They had dedicated state law to creating wealth and wealth was inseparable from slavery.[17]

 

The constitution’s provision on slavery denied power to the state’s General Assembly to pass laws freeing slaves without the owners’ consent, unless the slave “shall have rendered to the state some distinguished service.”  The constitution, however, did vest the legislature with the “power to permit the owner of slaves to emancipate them, saving the rights of creditors, and preventing them from becoming a public charge.”  The constitution also deprived the legislature of the power to forbid those moving to Mississippi from bringing their slaves with them, while saying lawmakers could stop others from importing slaves into the state as merchandise.   The constitution further authorized laws “to oblige the owners of slaves to treat them with humanity, to provide them with necessary clothing and provision, [and] to abstain from all injuries to them extending to life and limb.”  On the other hand, the constitution did not require grand jury proceedings when the state prosecuted slaves for crimes.  Law would regulate such proceedings “except that in capital cases, the general assembly shall have no power to deprive them of an impartial trial by petit jury.”[18]

 

After his service in the constitutional convention, Clarke remained active in the community.  On May 17, 1826, nine years after Mississippi’s admission into the Union, clergy and lay delegates met in Trinity Church in Natchez, and together they organized a Protestant Episcopal diocese in Mississippi.  Among the delegates, “probably the most distinguished was the Hon. Joshua G. Clarke, Chancellor of the State.”[19]  The Convention formally acceded to the constitution and canons of the Protestant Episcopal Church in the United States.[20]

 

As a symbol of his success, about 1826 Judge Clarke built his home, Claremont, in the Federal style and one of the first of the larger residences near Port Gibson.[21]

 

 

JOSHUA G. CLARKE, THE ATTORNEY

Clarke made his living as an attorney.  Goodspeed’s Biographical and Historical Memoirs of Mississippi describes him: “He was a lawyer of commanding ability, broad-minded, upright, skillful, and possessed the utmost confidence of his associates and the people of the state.  His temper was always under control, yet was sufficiently strong to give zest and earnestness to everything he said.  He possessed great learning, which he continued to improve until the time of his death.”[22]  And less panegyrically, “Judge Clarke was not a brilliant lawyer, but was careful, well-read and solid.  He was patient and amiable, and his opinions quite credible.”[23]

 

As an attorney, Clarke became involved with at least one of the many contentious land claims based on Spanish and French grants that bedeviled the territories of the Louisiana Purchase and crowded American courts.  The longest lasting of these proceedings was Winters v. United States.  In the extant records, Clarke first appeared on June 18, 1808 as the agent for Elisha and William Winters.  He asked for a writ of dedimus, which the court refused.[24]

 

Beginning in 1818, the Louisiana Territory’s commissioner of land claims and then congressional committees investigated the Winter claims.  In 1819, Clarke, now one of the claimants as well as their attorney, even protested to the President of the United States.  He claimed that the Winters group had recorded their titles and had lived on the land since 1798.  Further, a House of Representatives select committee, he said, had reported in favor of their titles.[25]  Clarke failed to move his case forward, and it dragged on for a couple of decades after he died.  One exasperated observer noted: “The Winter claim, although supported by the influence and intrigue of the many individuals of wealth and standing in the Mississippi Territory. . .  at length fell to the ground, burying in its fall, the hopes of the credulous, and the money of the avaricious.”  Congress persistently rejected “the claim as unfounded and fraudulent; and those who took an interest in sustaining the pretensions of the claim, as their only recompense, shared the loss and disappointment.”[26]

 

 

JOSHUA G. CLARKE, THE JUDGE

Untouched by such criticism, Clarke soon moved higher in the legal profession.

 

Mississippi’s first constitution, adopted on August 15, 1817, vested judicial power in one Supreme Court and such superior and inferior courts of law and equity as the legislature should enact.  Mississippi’s General Assembly was to elect four judges who would ride circuit.  These judges of the superior courts, sitting in bank semi-annually at the capital, made up the Supreme Court, but the judge whose decision was under consideration would not sit.  He was only to give the court his reasons for his opinion.[27]

 

On January 21, 1818, the General Assembly elected judges to fill the district benches for the newly-created Supreme Court, but only two districts, the first and the fourth saw contests.  For the first district, William Bayard Shields defeated Clarke by a vote of twenty-one to eleven.  The court’s personnel, however, changed even before its first session in June 1818, when Shields resigned to accept appointment as Mississippi’s first federal district judge.  Clarke replaced him and served on the Supreme Court until 1821.[28]

 

In November of that year, the General Assembly, still tinkering with the state’s judicial system, created the Superior Court of the Chancery.[29]  Clarke resigned from the Supreme Court and legislators chose him as the state’s first Chancellor, “where he presided for years with signal ability, purity of character and dignity.”[30]  Some have credited the high character Mississippi judicial decisions in the nineteenth century largely to Judge Clarke.[31]  Another observer equally praised him:

Judge Clarke was a lawyer of ability, and a man of sterling qualities.  He possessed in a high degree that placid temper and amiable patience which comport so compatibly with the requisite character of a good chancellor and just judge; and it is to be regretted that his decisions have not been preserved.  His learning and integrity first directed our system of equity jurisprudence into those channels through which it has flowed with increasing volume and utility. His career upon the supreme bench, though short, gave eminence to his judicial character.  His opinions are marked with learning, dignity, and force; and had he lived longer his usefulness would have, no doubt, increased with his years.[32]

 

Early in his stint on the Supreme Court, Clarke presided over a case spun off from the larger scandal surrounding Aaron Burr’s conspiracy to set up an independent nation in the west.  The suit involved two individuals.  President Thomas Jefferson had appointed the first, James Wilkinson, as governor of the northern Louisiana territory.  During his career several scandals and controversies, most notoriously Burr's scheme, dogged him.  The second, John Adair, was a future governor of Kentucky.  As Burr’s plot began to bubble over, Adair traveled to Louisiana to inspect a tract of land he had bought.  On his arrival in New Orleans, Wilkinson had him arrested.  Meanwhile, after hearing testimony, a grand jury dismissed the indictment against Adair as “not a true bill.”  Adair then sued Wilkinson in federal court, and the legal battle between the two continued for some years.  Eventually the court, with Clarke presiding, found that Wilkinson had no solid evidence against Adair and ordered Wilkinson to apologize publicly and pay Adair $2,500 in damages.  The Kentucky Reporter, praised the judge, “Joshua G. Clark presided at this interesting trial.  He is a judge newly appointed—he displayed dignity, talent, and promptness of decision, which gave general satisfaction to those who were present.”[33]

 

Of more importance to the growing nation’s history, while on the state’s Supreme Court, questions of slavery vexed Clarke and his colleagues.  Common law of slavery did not exist when British colonists had first established human bondage in North America, and this compelled American lawmakers and jurists to create a law of slavery.  In Mississippi in 1805, for example, the territorial legislature decided “to protect this useful but degraded class of men from cruelty and oppression” by declaring that “no cruel or unusual punishment shall be inflicted on any slave within this Territory.”[34]  In effect, with this statement the legislature had also indirectly legitimized a master’s power to physically correct his slaves.[35]

 

In the early decades of the nineteenth century, Mississippi’s high court also struggled to bring some civility and humanity to the institution of slavery by highlighting the factual settings of cases, by equating humanity and interest, and by issuing apologetics.  Occasionally, individual justices made statements of kindness and concern for a people in bondage and acted with political courage as they struggled to fashion some sort of justice within a culture founded on slavery.  Because Mississippi’s statues were sparse and common law inadequate, in their oratories judges filtered the facts of cases through personal recollection and intuition.[36]

 

Fitting this mold in forming his opinions, Clarke rejected the overtly racist pro-slavery doctrine that informed most antebellum southern jurisprudence.  He likely relied on his experiences in Pennsylvania, a state, unlike those in the South, which refused to sanction physical attacks on slaves by masters or third parties.[37]  In addition, the maxims of equity suited Clarke’s nature.  In fact, some have argued that the high point of antebellum Mississippi judicial sentiments supporting human dignity within the system of chattel slavery “was clothed in the robe of one Joshua G. Clarke.”[38]

 

Only two decisions written by Judge Clarke are available—the rest are missing.  If the court appointed a reporter in 1819 as the General Assembly had ordered, his name is lost.  Further, before 1825 the justices delivered most of their decisions orally and there is only a single volume containing all written decisions of the court from the June term 1818 to the court’s last term in 1832.  These two decisions, however, are important in the history of slavery in the South for fixing, at least for a while, some legal rights for slaves.  Scholars have approached these decisions from different perspectives.  Mississippi’s post-Civil War historians wrote paeans to their state, its judiciary, and to Clarke.  Legal historians have shown an interest[39] and so have scholars in cultural and social history.[40]  Others have found meaning in their rhetorical and oratorical form.[41]  Even one writer on psychiatry has looked into their implications.[42]

 

Southern law generally defined enslaved people as property without legal rights,[43] and Mississippi was no different.  While Clarke was sitting during the June term of 1820 in the case of Thomas Hinds v. William Terry, Mississippi’s Supreme Court suffused free peoples’ property rights embodied in slaves—as with horses—with ordinary property law.  In other words, a slave’s humanity was irrelevant in business dealings among masters.[44]  Nevertheless, as his two known written decisions show, he managed to find a place for humanity even within a slave’s condition.[45]

 

 

Harry and Others v. Decker and Hopkins, Petition for Freedom, 1818

Soon after the promulgation of the state’s founding constitution that he had helped write, Clarke became a judge on the newly created Supreme Court, and he had to base his decisions within the constraints the document had laid down.

 

An early result was his written decision in Harry and Others v. Decker and Hopkins, which was remarkable for its eloquence and for finding that comity[46] would apply in Mississippi, even when its application meant financial loss to Mississippi’s masters and freedom for its slaves.  In fact, with this decision, Mississippi became the first southern state to free a slave based on his previous residence in a free jurisdiction.  Rendered anonymously, the decision’s lofty style, its solicitous tone, and its grasp of ancient history and principles of human rights mimic those found in Clarke’s one signed opinion, State v. Isaac Jones.  Further, the process of elimination of the three other possible writers strongly suggests Clarke’s authorship.[47]

 

The case itself was a motion for a new trial brought by John Decker, the owner of three slaves who had successfully sued for their freedom in a lower court.  Decker argued that the Northwest Ordinance and Indiana’s Constitution[48] could not bar slavery for those imported into the territory after 1787 without violating the treaty of cession between Virginia and the United States.  Mississippi’s Supreme Court rejected the argument.  Apparently there was one, unidentified judge dissenting who did not publish his dissent.  Clarke deeply regretted the court’s division, especially “when the importance of the question is great, and when unanimity is so desirable, both to the bench, and to the parties whose interest is the immediate subject of adjudication.”  He added, “But as a judge, I have a duty paramount to all these considerations, which must prevail, however unpleasant to my own feelings, and whatever may be the consequence to others.”[49]

 

Clarke carefully and at length analyzed the case.  After discussing the Virginia and Indiana constitutions and the various compacts and ordinances previously applicable to the Northwest Territory, the court held that, until the treaty of 1763, the Northwestern Territory had belonged to France and then to Great Britain.  Although Virginia had conquered the territory during the Revolutionary War, the state had never extended its laws there before ceding it to the United States.  Then the Ordinance of 1787 banned slavery in the Northwest Territory.  Clarke reasoned that that positive law[50] did not support Decker’s claim on the three slaves.

 

Clarke then forcefully called on natural law[51] to buttress his decision:

What are these vested rights of [slave owners], are they derived from nature, or from the municipal law?  Slavery is condemned by reason and the laws of nature.  It exists and can only exist, through municipal regulations, and in matters of doubt, is it not an unquestioned rule, that courts must lean ‘in favorem vitae et libertatis.’  Admitting it was a doubtful point, whether the constitution was to be considered prospective in its operation or not, the defendants say, you take from us a vested right arising from municipal law.  The petitioners say you would deprive us of a natural right guaranteed by the ordinance and constitution.  How should the Court decide, if construction was really to determine it?  I presume it would be in favour of liberty.[52]

 

The Decker opinion applied, but did not cite, Chief Justice Lord Mansfield’s 1772 recognition in Somerset v. Stewart that the “power of a master over his slave has been different in different countries.”  Mansfield then asserted no one could introduce a state of slavery through any moral or political reason, but only through positive law, “which preserves its force long after the reasons, occasion, and time itself from which it was created, is erased from memory.  It is so odious that nothing can be suffered to support it but positive law.”[53]

 

In the United States, for the most part, only courts in the northern states adopted a broad reading of Somerset and its preference for liberty.  In the South, on the other hand, courts generally applied a presumption of slavery in freedom suits when the claimant appeared to be black.  Clarke would have set Mississippi on the former course.[54]

 

Having dramatically and without qualification stated that “Slavery is condemned by reason and the laws of nature,” Clarke closed: “From the view I have taken, I am satisfied, that the petitioners are entitled to have the verdict confirmed, and the motion for a new trial over ruled.”[55]  Using common law, Clarke and Mississippi’s Supreme Court had shown a sophisticated and sensitive appreciation of natural rights and the dangers of state-ordained slavery.  In freeing the three slaves and denying their owners their chattel property, this decision represented a young Mississippi court that tended toward liberal attitudes on the rights of slaves.[56]

 

This decision was not inevitable, and as Clarke noted, it was not unanimous.  He could have wrapped himself in the state’s constitution, which specifically gave owners the right to bring their slaves into Mississippi.  He might have deferred to an 1805 territorial law requiring special legislative acts to approve all manumissions.[57]  Had he wanted to defend the class and economic interests of slaveholders, Clarke and his colleagues could have found, for example, that property rights transcended the need for comity.  Or, harkening back to Hinds v. Terry, he might have argued that the slaves as mere chattel had no standing to bring the suit in the first place.  Or Clarke could have agreed with the dissenter, whatever his reasons for dissenting.  Certainly, even if denying Decker a new trial, Clarke could have avoided his stirring calls to reason and natural law, which elevated the decision to something more grand and universal than the specific issues in this particular case.  This also suggests that Clarke actually meant what he wrote, a dignity denied him by his many critics, who have concentrated their fire on his later decision in State v. Jones.

 

Some interesting questions surround Decker.  For example, how did the three slaves get the knowledge and financial wherewithal to file their petition for freedom?  Surely, there were whites helping them.  Could a jealous neighbor of the slaveholder have been seeking to cause mischief?  Was there an anti-slaveholding “activist” making a statement?  Who represented the slaves and why?  Perhaps an abolitionist or a colonizationist argued the case out of conviction.  Perhaps a young attorney was seeking to make a name for himself.  Most southern lawyers who took on slaves as their clients in freedom cases at other times argued for owners’ rights.  As with most attorneys most of the time, they argued the side paying the bill.  Clarke’s opinion, focused so tightly on specific legal issues, leaves the historian with many unanswerable questions.[58]

 

The line of reasoning and sentiment that had allowed Decker lasted only twenty years in Mississippi.  Without citing Decker, which should have been controlling, the Mississippi court reversed Clarke’s decision in the 1838 case of Hinds et al., Appellants v. Brazealle et al.  In this decision, the court rejected comity and declared that chattel were property and that a “slave cannot take property by devise.”[59]  In other words, in 1820 in Hinds v. Terry Clarke and the Supreme Court had decided as if a slave’s humanity had no relevance to cases decided about him.  Now, with Hinds v. Brazealle, a slave, as mere property and without humanity, was unalienable from his owner even when manumitted in a free state.  Indeed, the slave himself was culpable for his loss to the owner.[60]  Then in 1859, Mississippi’s Errors and Appeals Court further rejected the common law rights of even freed slaves with William Mitchell v. Nancy Wells.  As a member of an inferior race, the slave had only those positive law rights that whites might deign to confer.[61]  These courts could and did ignore Decker—natural law favoring freedom had become but a distant memory.

 

The Decker decision had also long proved inconsistent with decades of Mississippi’s statutes opposing manumission, beginning with an 1805 territorial act requiring the legislature to adopt special acts approving all manumissions.  After Clarke had left the Supreme Court, an act of 1822 declared that owners could free slaves through a will or a properly witnessed and recorded document—if the slave had done some meritorious deed for his owner or the state.  The legislature then had to pass a special act of manumission, and, unsurprisingly, few were ever able to take advantage of this possibility of freedom.  Then followed an 1831 law requiring all free negroes to leave the state.[62]

 

The next year, the state promulgated a new constitution, which declared that the legislature had no power to emancipate slaves without the consent of owners unless the slave had rendered to the state some distinguished service.  The state then had to reimburse the owner for the value of the slave.  The constitution also forbade the introduction into the state of slaves as merchandise for sale, although until 1845 owners could bring slaves into the state for their own use.[63]  Why would the state continue to prohibit the importation of slaves as merchandise?  In fact, all southern states except Arkansas, Florida, and Texas prohibited the importation of slaves as merchandise.  Specifically, the excessive cruelty of slave traders may have offended some Mississippians—it certainly did Mississippi’s early Supreme Court.  Others feared that Virginians might send to the state those slaves implicated in Nat Turner’s Rebellion of the year before.  Still others feared that abolitionism might have infected slaves from the border states.  Finally, some hoped to stem too rapid a rise in the state’s slave population.[64]

 

Later in 1842 and reinforcing Hinds v. Brazealle, legislators declared that slaves taken from Mississippi and freed could not return.  No owner could emancipate a slave through a bequest or removal from the state, and only with specific court approval could a free negro or mulatto remain in the state.  Mississippi imposed stiff penalties on free whites harboring slaves without permission.  In 1857, legislators strengthened these provisions and they forbade all manumission, even if their owners freed the slaves outside Mississippi.[65]

 

Modern scholars have evaluated Clarke’s decision in this larger judicial and legislative context.  As Meredith Lang puts it, “The moral philosophy expressed in the opinion on the institution of slavery was only a romantic historical error of 1818.”  It was, she continued, “antagonistic to the forces at work in the state which were eventually to venerate slavery as one of the noblest inventions of man and consign Harry to oblivion.”[66]  Paul Finkelman writes that the Decker opinion “was extraordinary for its explicit condemnation of slavery and its interpretation of the Northwest Ordinance. . . .  Unfortunately for Mississippi’s slaves,” this “was the first and the last case of this type to free slaves” in Mississippi based on a free state’s or the nation’s laws.[67]

 

 

State v. Isaac Jones, 1821

Judge Clarke wrote his second known opinion, this one signed, in State v. Jones.  After the state had charged, indicted, and convicted Jones for murdering a slave, the defendant filed a motion for an arrest of judgment[68] with Mississippi’s Supreme Court.  He argued that he could not be so indicted and convicted for murder, because the malicious killing of a slave was not common law murder and that no Mississippi statute criminalized slave killing.  In essence, he said, the act for which the court had convicted Jones was legal in Mississippi in 1821.  In essence, his appeal sought to deny the court the power to make malicious slave killing a crime by judge-made law—that is, by common law.[69]

 

Interestingly, slave law cases often did not name the most important person involved—or at least the one with the most to lose or gain—the slave.  Following custom, Clarke did not state in his opinion the deceased slave’s name or how the homicide occurred.[70]  Arguably this was not because Clarke did not care about the facts, but because of the case’s procedural posture and that he relied on natural law as the foundation of his decision.  Because court documents recorded the defendant’s surname but did not identify him as a slave or note what his relation to the slave’s master was, Jones was likely a white stranger to the slave or possibly a freed black.[71]

 

Citing neither statute nor case law in his lengthy opinion—other than speculation about the Virginia law reports—Clarke relied on oratorical form and delivered a secularized sermon.  He recognized in his apologetical discourse the sorry state of precedents used in Mississippi trials, and he therefore had to compose his own legal history.[72]

 

Declaring that slaves could not be murdered with impunity, Clarke rejected Jones’ argument that relied on Roman law.  He stated that the law “giving the power of life and death over captives in war, as slaves,” was “confined to the Roman empire,” and had not extended to the United States.  He also noted that “the civil law of Rome extirpated this barbarous privilege, and rendered the killing a slave a capital offence.”  He added that, “When the northern barbarians overran Southern Europe,” even “this savage people, [made] no distinction . . . between the killing in cold blood, a slave or a freeman.”[73]

 

Following this line of reasoning, Clarke also rejected Jones’ common law argument that slave killing could not be common law murder based on Judge John Hall’s dissenting opinion in the 1801 North Carolina case, State v. Boon.  Clarke objected that Hall had based his conclusion on “erroneous principle, by considering the laws of Rome applicable here.”[74]

 

Before State v. Jones, no one knew with certainty whether the crime of murder could be committed in Mississippi by killing a slave.  If he was a natural person, as criminal law held, it would seem so.  Yet without a specific statute making the murder of a slave a crime, would a slave receive the same protection criminal law provided all free white persons?  To answer this question, the Supreme Court and Clarke said that slaves were “reasonable and accountable beings,” even though lawfully “deprived of freedom.”  Without questioning the legality of dispossessing the slave of freedom or of holding a reasonable, accountable being in bondage, the court reserved to a slave “all those rights” not deprived him “by the positive provisions of law.”  Clarke thus returned to the principle of natural law that Mansfield had expressed in Somerset and that he had repeated in Decker: in the absence of positive law decreeing otherwise, the default position should be “in favorem vitae et libertatis.”[75]  Clarke thus asserted that murder could, in fact, be committed against a slave, because he was a “reasonable being,” by implication, even more so than “an idiot, lunatic, or unborn child.”[76]  He thus rejected the defense claim that slaves were outside common law, and the court condemned the murderer to death by hanging on July 27, 1821.

 

Many have praised this decision.  For example, James Lynch describes Clarke’s larger career as having “caused the administration of our courts of equity to shed a benign and hallowed influence on every feature of society and upon all the multiplied concerns of life.”[77]  And A. E. Keir Nash, writing in the late 1960s, draws a stark comparison, “It is not at all obvious that mid-twentieth-century southern judges are as convinced of the humanity of the Negro as were their forebears in an age of slavery.”[78]  Meredith Lang, while calling Clarke’s decision “able and enlightened,” complains that through it positive law merely limited slaveholder’s rights rather than conferring rights on the slave.[79]  This argument ignores Clarke’s fervent belief that whenever possible natural rights—inherent in the slave as a reasonable being—should triumph over positive law.

 

Many critics of Clarke fall into similar traps.  Thomas Szasz, for example, has denounced the decision as merely pro-slavery apologetics.  Using a perspective from psychiatry, Szasz condemns Clarke, who felt, he writes, compelled to defend slavery by pleading that “villains in England, were more degraded than our slaves.”[80]  Szasz, however, lifted this phrase from a larger, rhetorical argument, the gist of which was that in English common law, “killing a villain was as much murder, as killing a lord. Yet villains were then the most abject slaves, and could be bought and sold as chattels, but because slaves can be bought and sold, it does not follow that they can be deprived of life.”[81]  What Szasz found so reprehensible as pro-slavery apologetics was actually an attempt to stress the historical foundation for a claim that in Mississippi murder could be committed against a slave.  And contrary to Szasz’s claim, nowhere in his two decisions does Clarke positively defend slavery—to the contrary, in Decker he asserted that “Slavery is condemned by reason and the laws of nature.”[82]

 

Meanwhile, Colin Dayan complains that Clarke’s decision meant only that in death did a slave receive any sense of autonomous humanity and the protection of positive law.[83]  There are at least two objections to this conclusion.  First, pedantically, murder can be committed only against a live person.  Therefore, the protection in law of a slave’s humanity that Clarke offered had to be something more than Dayan posits.  Second, Dayan does not mention Clarke’s decision in Harry v. Decker, which gave freedom to “live” slaves.  This decision and his ringing call to natural law directly contradict Dayan’s conclusions about what lay behind Clarke’s opinion in Jones.

 

In a more sustained critique, Andrew Fede in People without Rights has looked at Clarke’s decision more narrowly, and he suggests that the court’s exalted language has misled students of State v. Jones to exaggerate its importance.  He quotes Clarke:

Has the slave no rights, because he is deprived of his freedom?  He is still a human being, and possesses all those rights, of which he is not deprived by the positive provisions of law, but in vain shall we look for any law passed by the enlightened and philanthropic legislature of this state, giving even to the master, much less to a stranger, power of the life of a slave.[84]

Fede suggests that these words are merely dictum[85] distinguished from the holding of the court, which was that malicious slave killing was a criminal offense.  Clarke’s opinion did not hold that slaves were entitled to common law protection against homicide, because the defendant had not raised issues of mitigation and extenuation and therefore the court did not decide these questions.  He also notes that Clarke did not state whether he would have applied the common law’s standards of mitigation and justification with equal force to slave crime victims.  When the court upheld the defendant’s conviction, it merely held that malicious slave killing was a capital crime according to judge-made law.  But the notion that the court would hold malicious slave killers criminally liable was not remarkable when read in its proper legal and historical context.[86]

 

Fede elaborates.  The court did not note the defendant’s class identity.  Most likely, Fede suggests, Jones was a stranger to the slave.  In early nineteenth-century Mississippi, class tensions worried slave owners, who were displacing the poor, white pioneers who had first settled these regions.  The Jones case probably expressed slave masters’ fears of poor, white, slave killers, whose envy-filled depredations threatened property values, that is, slaves, as well as the power and authority of the slave-owning class.[87]  Fede’s conclusion ignores the implications of Clarke’s earlier decision in Harry v. Decker, where the judge was clearly willing to divest an owner of his slave property.  While, obviously, economics always play a significant role in explaining human behavior, many people often and knowingly act against their economic interests, and sometimes even against their fears, for the sake of other values.[88]

 

Michael Mills, a federal judge in the Northern District of Mississippi, argues similarly.  He sees Clarke as manipulating the written word to articulate comparatively solicitous rules of law to make the “peculiar and immoral institution of chattel slavery profitable for slave owners and bearable for bondsmen.”[89]  But, after noting the inherent evilness of slavery, Mills adds, “However, the hearts and minds of individuals sometimes rise above the commonplace and, if only for a brief moment, evidence the highest and best in human nature.”[90]

 

This gets to the heart of Ruth Wedgwood’s criticism of Fede in People without Rights.  She notes that Fede admits that law sometimes protected slaves and referred to them as persons, but their personhood was without legal substance for they had no cognizable rights.  Cruelly ironic references to slaves’ humanity legitimized the power of whites over slaves.  Any judicial scruples, Fede asserts, merely masked the overall property orientation of slave law.  Calling Fede’s argument “sometimes elusive,” Wedgwood notes that there were, after all, southern judges who spoke openly of the problem of protecting slaves against gratuitous violence and cited their concern for the human claims of bondsmen.  She uses Clarke as her example.  She also charges that Fede wrongly thinks that a person can have rights only if he can go to court in his own name—a person, after all, can have rights by indirectly benefiting from law.  Here Wedgwood has ignored the Harry v. Decker decision in which three slaves themselves apparently brought suit.  Such an acknowledgment would have, in truth, made her larger argument stronger.  Finally, Wedgwood charges that Fede overstates his claim that economic interests determine the content of law.  She takes umbrage at Fede’s unwillingness to suppose that any southern judge writing about slavery was ever sincere.  When forced to face Clarke who had spoken truthfully and sincerely about slavery, Fede declares that the judge’s observations were dicta.  But, she says, judges write all parts of their opinions to inform, explain, and guide parties in future cases, whether or not the observations enjoy the technical weight of stare decisis.  Finally, she objects that Fede denies the efficacy of any other element of southern culture apart from planters’ calculated interests.[91]

 

Since writing People without Rights, Andrew Fede has expanded some his views on Clarke, especially because he has come to accept Clarke’s authorship of the Decker decision.  While finding Clarke’s holding in Jones not especially unusual—legislatures and courts in other states also saw slave killing as theft of valuable property that demanded punishment—he now concludes that Clarke’s opinions were not typical of antebellum southern judges and lawmakers.  He now believes that Clarke likely would have dissented from the overtly racist jurisprudence of Mississippi’s later judges.[92]

 

Regardless of which of these observers is closest to the mark in evaluating Clarke and his opinions, the truth remains that Mississippi’s white society increasingly denied slaves their rights.  As the state’s slave population increased and surpassed the white population in the 1830s, free whites in Mississippi eventually developed a siege mentality that did not spare the courts.  Further, bondage by its very nature forced slaves into a subcategory of human beings and made them and their rights vulnerable to legal encroachments.  While Mississippi’s early justices had initially proclaimed liberty as their primary consideration, their noble hopes, however, did not last long.  Like the executive and legislative branches, the judiciary ultimately came to deny any meaningful freedom to people of color and grimly claimed a Mississippi’s right to defend slavery on grounds of public safety.[93]

 

In June 1822, soon after Clarke had left the Supreme Court, the state legislature consolidated laws concerning slaves, free negroes, and mulattoes.  The new act banned cruel or unusual punishment of slaves and imposed a fine not to exceed $500 on a conviction, which by default legitimized the masters’ power to physically correct their chattel.[94]  Presumably not disconcerted by Clarke’s decision in Jones, the legislators, however, did not codify whether slave killing could be murder or manslaughter.  Interestingly, neither did they legitimize killings in cases of slave resistance or moderate correction.[95]

 

In the years before the Civil War, southern attitudes toward race and slavery hardened.  In 1847, Judge David L. Wardlaw of South Carolina summarized the prevailing southern understanding of bondage, writing that the slave “is subject to despotism” and he “can invoke neither the magna charta [sic.] nor common law. . . . Law as to him is only a compact between his rulers.”[96]  As a symptom, slaves faced both over-enforcement of criminal law as perpetrator and under-enforcement when victim.[97]  In a like vein, Thomas R. R. Cobb’s comprehensive law treatise of 1858 on slavery, citing the Jones opinion, complained that “learned judges in slaveholding States” had adopted the language of Lord Mansfield in Somerset v. Stewart.  They had “announced gravely” that slavery was contrary to natural law and could exist only by force of positive law.[98]  According to Cobb, this natural law principle did not apply to the negro.  He took many pages to show that the slave’s inferiority made his slavery, in fact, consonant with natural law.[99]  In the years immediately before the Civil War, most white Mississippians agreed with Wardlaw and Cobb.

 

For example, Mississippi’s Court of Errors and Appeals further confirmed the demise of State v. Jones in its 1859 decision in George (a Slave) v. The State.  Justice William Harris held that slavery, as it existed in the United States, was unknown to English common law and hence common law was inapplicable “to injuries inflicted on, or committed by, slaves in this State.”  Further, statutory enactments did not extend to slaves, “either to punish or protect.”  Harris avowed that cases referring to slave rights based on State v. Jones and “one or two early cases in North Carolina,” were “founded mainly upon . . . unmeaning twaddle.”  He denounced those “humane judges and law writers” who had looked to natural law and the “civilizing and Christian enlightenment,” to amend “the rigor of the common law.”  He also rejected the “supposed analogy between villanage in England and slavery here.”[100]

 

The Jones court’s dictum on slave “rights” was also irreconcilable with the later holding of the Mississippi Supreme Court in Oliver v. State of 1860.  In that case, the court held, as a matter of judge-made law, that slave masters had a greater right to kill their slaves than common law afforded them and an even greater right to kill them than strangers did.[101]

 

Thus on the eve of the Civil War, the entire trajectory of judicial opinion and legislative action culminating in the Oliver decision had reversed Jones and deprived slaves of their rights as human beings protected by natural and common law.  Both precedents provided in Clarke’s two significant decisions—in Decker and in Jones—had fallen to the economic, political, and social interests of Mississippi’s slave owners.

 

 

A FINAL EVALUATION

Joshua Clarke died on July 22, 1828 in Natchez after an illness of seven days.[102]

 

Long sympathetic to Clarke, Mills concludes that he “establishes that men of good will and fair minds can speak the truth, even in the worst of times.  He refused to hide behind the accepted states’ rights argument of his times.”  Harry v. Decker was one of the few decisions in Mississippi’s appellate case law before the Civil War, where economics or fear could not explain the apparent solicitude of the justices.[103]  Fede has come to agree with Mills, pithily concluding that “both Decker and Jones are decisions in which the Court was judging slavery law against the grain.”[104]

 

Looking at Clarke’s two decisions from the perspective of his life raises several questions.  How, for example, did his liberal decisions sit with his fellow citizens?  With his family?  After all, they—his wife, children, and in-laws—were slaveholders, in some cases large plantation owners with many slaves.  How did Clarke apparently transcend the attitudes of friends and family to come to his legal judgments that seemed to offer some measure of humanity to slaves?  There is enough information to ask these questions, but, sadly, answering them is no easy task, because we know so little about Clarke, his life, or how his friends and family reacted to his verdicts.

 

Plainly, though, many Mississippians did not hold Clarke’s tenure on the Supreme Court against him.  They celebrated his life and contributions to the state by naming Clarke County, formed in 1833, after him.[105]

 

As for Clarke’s family, only a few documents exist that allow confidence in even indirect and tentative appraisals.  Joseph Calvit’s brother and large plantation owner, Thomas, named his son as his sole executor in his will of 1818, but he later added Joshua Clarke to that position in his new will of 1821.[106]  Surely, relations were not too strained, and even though the will involved the disposition of several slaves, Clarke clearly had no problems acting as its executor.

 

Another bit of suggestive evidence regards one of his sons, Joseph Calvitt Clarke, who in 1821 and “still wearing Knee breeches,”[107] went for his education to Morristown, New Jersey, where slavery, although legal was in demographic decline.  Later, with two others he was briefly a proprietor, publisher, and editor of New Orleans’ most important commercial newspaper, the Commercial Bulletin.  An editorial written in 1839 celebrated a meeting of the Colonization Society, a group dedicated to repatriating American blacks to Africa: “The cause is evidently gaining ground in Louisiana, and throughout the south generally.  Our statesmen begin to regard this association as our only hope of escape from that which must be esteemed a great political and social evil.”  Rejoicing at the rapidly growing number of “advocates and promoters of their measures,” the editors longed for the day, soon to come, when “the cause is destined to become deservedly popular.”  But they also reigned in their dreams.  “Whether it will ever be effectual for the entire eradication of the evil it was designed to counteract, is not the question we care to ask.”  But colonization might “be the means of accomplishing important results, both in regard to the amelioration of our domestic institutions, and the civilization of Africa.  That it may be made to answer such end, appears to us sufficiently evident.”[108]

 

Adding weight to this editorial opinion that slavery was an “evil,” Joseph Calvitt Clarke was a lay preacher in the Methodist Episcopal Church, and he was “largely instrumental in originating and sustaining a church among the slaves of the city that now number a thousand members!”[109]  Had Joseph learned the attitudes at his father’s knee?  Certainly, the father’s sentiments echoed in the son’s life.

 

Many more questions remain.  According to Mississippi’s state censuses for 1810 and 1816, Joshua Clarke’s household included six slaves.[110]  It would have been, after all, impossible to run a home as large and as socially connected as his without such labor.  How did the judge reconcile his life as a slave master with his Supreme Court decisions?  Presumably he took solace that positive law permitted slavery even if natural law did not.  At best, this seems a morally ambiguous solution.

 

While acknowledging the possibility of multiple and even conflicting motives, Clarke seems to have had a genuine concern for the humanity of slaves.  He could have supported the motion for arrest of judgment in Jones.  He did not have to appeal to natural law.  And his statement in Decker—a sentiment he repeated in Jones— that, “Slavery is condemned by reason and the laws of nature” becomes needlessly gratuitous unless Clarke actually meant it.  In his complicity elsewhere with the slave-owning class in Mississippi, we can charge Clarke with inconsistency and even hypocrisy.  But hypocrisy is the homage we pay to virtue as we struggle to free our better angels.



[1] Statesman and Gazette [Natchez, Mississippi], July 6, 1831, reprinting story from the Vicksburg Register.

[2] James Daniel Lynch, The Bench and Bar of Mississippi (New York: E. J. Hale & Son, 1881), 89; Michael P. Mills, “Slave Law in Mississippi from 1817-1861: Constitutions, Codes and Cases,” Mississippi Law Journal (Fall 2001): 176.

[3] James M. White, “Papers of Prominent Mississippians,” in Publications of the Mississippi Historical Society, ed. Franklin L. Riley, 14 vols. (Oxford, MS: Printed for the Society, 1902), 5: 265; Robert J. Walker, ed., Reports of Cases, Adjudged in The Supreme Court of Mississippi (Natchez: Printed at the Courier and Journal Office, 1834), 36-43; 83-86; John Ray Skates Jr., A History of the Mississippi Supreme Court, 1817-1948 (Jackson: Mississippi Bar Foundation, 1973), 69.

[4] Dunbar Rowland, The Official and Statistical Register of the State of Mississippi: Centennial Edition, 1917 (Madison, WI: Democrat Printing Co., 1917), 66-67; Mills, “Slave Law,” 154-55, 160; James W. Loewen and Charles Sallis, Mississippi: Conflict and Change (New York: Pantheon Books, 1974), 66-67.

[5] Common law develops through court decisions rather than legislative statutes or executive action.  Its guiding principle is that it is unfair to treat similar facts differently on different occasions.  The body of precedent is called “common law,” and it binds judges to decide future cases by following the reasoning used in earlier decisions—the principle of stare decisis.  If, however, the court finds that the dispute is fundamentally distinct from all previous cases, judges have the authority and duty to make law by creating new precedent.  By contrast, in civil law judicial precedent carries less weight.  This means that a judge deciding a given case has more freedom to interpret the text of a statute independently and therefore less predictably.

[6] Sylvester John Hemleben and Richard T. Bennett, “Beginnings of the Legal Profession in Mississippi,” Mississippi Law Journal (1964-1965): 155-58, 165; David F. Sansing, Sim C. Callon, and Carolyn Vance Smith, Natchez: An Illustrated History (Natchez, MS: Plantation Publishing Co., 1992), 49.

[7] Mississippi Department of History and Archives, no. 287, at http://mdah.state.ms.us/arrec/digital_archives/series/s488/detail/8257.  McGuire’s letter poses two interesting questions.  Presumably the two had met.  Where and when?  McGuire was from Winchester, Virginia.  Appointed as Chief Justice of Mississippi’s Territorial Court by President John Adams, he arrived in Mississippi in the summer of 1799.  He, however, left that autumn.  He returned to Virginia and died at Harpers Ferry in 1820.  Most likely they met sometime after late 1799 and before January 1804.  Was Clarke sometime in Virginia’s western counties?

[8] When an executor has been appointed but is no longer available and the estate is not fully settled, a second administrator is appointed de bonis non to perform any remaining duties.  He becomes the only representative of the deceased.

[9] W. C. Smedes and T. A. Marshall, eds., Containing Cases for January-February 1847,  vol. 8 of Reports of Cases Argued and Determined in the High Court of Errors and Appeals for the State of Mississippi (Boston: Charles C. Little and James Brown, 1847), 234-79 and esp. 10-11, 246, 267, 271-74.

[10] Sun [Dover, New Hampshire], July 20, 1805, reprinting an article from The Mississippi Herald.  Also see Repertory [Boston, MA], July 19, 1805 and Waterford Gazette [Waterford, NY], July 30, 1805.

[11] J. Calvitt Clarke III, “The ‘I’ in History: An Historian’s Self-Indulgent Foray into Family History: The Calvet’s from France to the American Frontier,” Selected Annual Proceedings of the Florida Conference of Historians, 13 (Apr. 2006): 46-59; Skates, History, 69; Dunbar Rowland, Courts, Judges, and Lawyers of Mississippi, 1798-1935 (Jackson, MS: State Department of Archives and History and The Mississippi Historical Society, 1935), 49; Dunbar Rowland, The Official and Statistical Register of the State of Mississippi, 1908 (Nashville, TN: Brandon Printing Co., 1908), 171; Dunbar Rowland, ed., Official Letter Books of W. C. C. Claiborne, 1801-1816, 6 vols. (Jackson MS: State Department of Archives and History, 1917), 1: 110-13, 131-33, 150-55, 225-27, 261-62, 268-69, 276; Francis Stuart Harmon, A Good Inheritance (New York: P & D Press, 1960), 168-86; Lawrence Kinnaird, ed., Spain in the Mississippi Valley, 1765-1794 (Washington, U.S. Govt. Printing Office, 1949), 308, 310; Latayne Colvett Stanfill, Colvett Family Chronicles: The History of the Colvett Family of Tennessee, 1630-1990 (Glendale, CA: Heirloom Press, 1991), 348-57, 374-88.  Also see the many abstracts in Wilson May McBee, comp., The Natchez Court Records, 1767-1805: Abstracts of Early Records (Baltimore: Genealogical Publishing Co., 1979).  For a description of slavery in early Mississippi and a picture of the plantation life these Calvit settlers inhabited, see David J. Libby, Slavery and Frontier Mississippi (Jackson: University Press of Mississippi, 2004), esp. 30-59.

[12] Clarence Edwin Carter, ed., The Territory of Mississippi, 1798-1817, vol. 5, The Territorial Papers of the United States (Washington: United States Government Printing Office, 1937), 722-23.  The seventeen were apparently successful, at least in the short run.  Poindexter several years later did receive a territorial judgeship and subsequently was elected governor and later senator for Mississippi.  In 1811, Poindexter shot the Federalist, Abijah Hunt, whose wealthy and extended family later joined in marriage with the Clarke family.

[13] A Committee of the Grand Lodge, Proceedings of the Grand Lodge of Mississippi, Ancient, Free and Accepted Masons, From Its Organization July 27th 5818 to Include the Communication Held in the Year 5852, compiled from the “Extracts from the Proceedings” (Jackson, MS: Clarion Steam Printing Establishment, 1882), 594-95.

[14] Clarence Edwin Carter, ed., The Territory of Mississippi, 1809-1817, Continued, vol. 6 of Territorial Papers of the United States, 732-35.

[15] Dunbar Rowland, “Mississippi’s First Constitution and Its Makers,” in Publications of the Mississippi Historical Society, 6: 82, 89; for the whole convention, see 79-90; Statesman and Gazette, July 6, 1831.

[16] Loewen and Sallis, Mississippi, 82.

[17] Rowland, Courts, 49-50; Dunbar Rowland, History of Mississippi: The Heart of the South, 2 vols. (Chicago: S. J. Clarke Publishing Co., 1925), 1: 489, 499; Mills, Slave Law, 164; Lynch, Bench and Bar, 89-90, 533.

[18] George Poindexter, The Revised Code of the Laws of Mississippi: In Which Are Comprised All Such Acts of the General Assembly, of a Public Nature, as Were in Force at the End of the Year 1823 (Natchez: F. Baker, 1824), 554; Andrew Fede, “Judging Against the Grain? Reading Mississippi Supreme Court Judge Joshua G. Clarke’s Views on Slavery Law in Context,” paper presented to the Annual Meeting of the Florida Conference of Historians,” Lake City, FL, Feb. 2012, 17-18 n.63; Robert Lowry and William H. McCardle, A History of Mississippi: From the Discovery of the Great River by Hernando Desoto Including the Earliest Settlement Made by the French, Under Iberville to the Death of Jefferson Davis (Jackson, MS: R. H. Henry & Co., 1891), 237.

[19] Arthur Howard Noll, “Bishop Otey as Provisional Bishop of Mississippi,” in Publications of the Mississippi Historical Society, 3: 139.

[20] “Convention of Mississippi,” The Christian Journal 10 (Sept. 1826), 257; William Stevens Perry, The History of the American Episcopal Church: The Organization and Progress of the American Church, 1783-1883 (Boston: James R. Osgood and Co., 1885), 213; A. A. Benton, ed., The Church Cyclopaedia: A Dictionary of Church Doctrine, History, Organization and Ritual, and Containing Original Articles on Special Topics, Written Expressly For This Work by Bishops, Presbyters, and Laymen. Designed Especially for the Use of The Laity of the Protestant Episcopal Church in the United States of America (New York: James Pott & Co., 1883), 485; Journal of the Proceedings of the Protestant Episcopal Church, in the Diocese of Mississippi held in the City of Natchez, On the 17th and 18th Days of May, A.D. 1826 (Natchez, MS: James K. Cook, at the Office of the Ariel, 1826), 3.  Never a large percentage, Episcopalians and Catholics totaled only 3 percent of Mississippi’s population in 1850.  Mills, “Slave Law,” 159.

[21] Today located at 366 Claremont Drive, the home was added to the National Register of Historic Places in 1979.  Ed Polk Douglas, ed., Architecture in Claiborne County, Mississippi: A Selective Guide (Jackson: Mississippi Department of Archives and History, 1974), 72.  Special thanks are due to John Geiser III, who brought to my attention much information on Claremont and more.  The Clarke’s presumably hosted many social occasions, e.g., on May 25, 1828, at Claremont, the Reverend Rector of Trinity Church in Natchez married John Perkins, Esq. and Mrs. Zilpha Seton.  The Ariel, May 31, 1828.

[22] Biographical and Historical Memoirs of Mississippi: Embracing Authentic and Account of the Chief Events in the History of the State, and a Record of the Lives of Many of the Most Worthy and Illustrious Families and Individuals, 2 vols. (Chicago, IL: Goodspeed Publishing Co., 1891), 1: 555.

[23] Biographical and Historical Memoirs, 1: 112; John Francis Hamtramck Claiborne, Mississippi as a Province, Territory and State with Biographical Notices of Eminent Citizens, vol. 1 (Jackson, MS: Power & Barksdale, Publishers and Printers, 1880), 357.  Also see Thomas H. Somerville, “A Sketch of the Supreme Court of Mississippi,” Green Bag: An Entertaining Magazine for Lawyers 11 (Nov. 1899): 505.

[24] A dedimus is a legal writ to commission private persons to do some act in place of a judge, such as examining a witness.  Walter Lowrie, ed., Early Settlers of Missouri as Taken from Land Claims in the Missouri Territory (1834; reprint, Greenville, SC: Southern Historical Press, 2001), 519.

[25] Lynn Foster, “Their Pride and Ornament: Judge Benjamin Johnson and the Federal Courts in Early Arkansas,” University of Arkansas at Little Rock Law Review 22 (1999): 46-47; J. D. B. De Bow, The Commercial Review of the South and West, vol. 5 (New Orleans: B. F. De Bow, 1848), 123-27.

[26] De Bow, Commercial Review, 127.

[27] Somerville, “Sketch,” 503.

[28] Skates, History, 4-5; Rowland, Official and Statistical, 1908, 26, 33, 40; Rowland, Courts, 77.  Also see A. B. Butts, “The Court System of Mississippi,” Mississippi Law Journal (1930-1931): esp. 97-100.  Also see Land Claims in the Missouri Territory. Communicated to the House of Representatives, December 1, 1812. Publication No. 206, American State Papers, 029, Public Lands, Vol. 2 and  Land claims in Louisiana. Communicated to the Senate, June 22, 1813. Publication No. 217, American State Papers, 029, Public Lands Vol. 2.  Both accessed through Genealogybank.com.

[29] Common law differs from equity jurisprudence.  Before 1873, England had two parallel court systems: courts of law that could only award money damages and recognized only the legal owner of property, and courts of equity (courts of chancery) that recognized trusts of property and could issue injunctive relief, that is, a court order to a party to do something, give something to someone, or stop doing something.  This split spread to many of Britain’s colonies, including those in the United States.  For most purposes, the United States federal system and most states today have merged the two courts.

Clarke may have visited New York City about this time.  The National Advocate in that city on August 17 and 19, 1822 included the “Hon. Joshua G. Clark” among a long list of names with letters remaining at the post office as of August 15.

Later, while Clarke was Chancellor, the Ariel newspaper of Natchez on Apr. 2 and 16, 1825 listed him among those with letters at the post office and warned that if not picked up, the letters would be sent to the General Post Office as dead letters.

[30] Lowry and McCardle, History of Mississippi, 240; Skates, History, 6; Rowland, Courts, 248.  For examples of the kinds of cases Clarke dealt with as Chancellor, see: Ariel, Dec. 12, 19, 26, 1825, in which he forced the sale of land at public auction; and Statesman and Gazette, May 24, June 27, 1827, which dealt with claims against an estate.

[31] Biographical and Historical Memoirs, 1: 555.

[32] Lynch, Bench and Bar, 90.

[33] Burlington Gazette [Burlington, Vermont], Jan. 28, 1819; Charles J. Bussey, "John Adair" in Lowell Hayes Harrison, Kentucky's Governors 1792-1985 (Lexington, KY: The University Press of Kentucky, 1985), 25-26.

[34] John Codman Hurd, The Law of Freedom and Bondage in the United States, 2 vols. (Boston: Little, Brown & Co., 1862), 2: 143; Fede, “Judging,” 14 n. 49; Fede, People without Rights, 105-21.

[35] Andrew Fede, People without Rights: An Interpretation of the Fundamentals of the Law of Slavery in the U.S. South (New York: Garland, 1992), 3-44, 77-89; Fede, “Judging,” 11-12.

[36] William E. Wiethoff, A Peculiar Humanism: The Judicial Advocacy of Slavery in High Courts of the Old South, 1820-1850 (Athens: University of Georgia Press, 1996), 1, 68.  Several authors, e.g., Wiethoff on p. 68, facilely suggest that Clarke’s “planter’s lifestyle” at his home, Claremont, informed his decisions.  Clarke, however, did not build his home until 1826, years after his stint on the Supreme Court.  On the other hand, through his wife, in-laws, and his own slaves, he was sufficiently familiar with plantation life.

[37] A. Leon Higginbotham Jr., In the Matter of Color: Race and the American Legal Process: The Colonial Period (New York: Oxford University Press, 1978), 306; Wiethoff, Peculiar Humanism, 146; Edward Raymond Turner, The Negro in Pennsylvania: Slavery, Servitude, and Freedom 1639-1861 (Washington: American Historical Association 1911), 35-37; Fede, “Judging,” 12.

[38] Mills, “Slave Law,” 176.

[39] See, e.g., Fede, People without Rights, esp. 3, 73-75; Paul Finkelman, The Law of Freedom and Bondage: A Casebook (New York: Oceana Publication, 1986), 169-71, 247-50; and Mills, “Slave Law,” esp. 176-80, 234.

[40] See, e.g., Thadious M. Davis, Games of Property: Law, Race, Gender, and Faulkner’s Go Down, Moses (Durham: Duke University Press, 2003), 30, 83.

[41] Wiethoff, Peculiar Humanism, 1, 146-47, 158.

[42] Thomas Szasz, Liberation by Oppression: A Comparative Study of Slavery and Psychiatry (New Brunswick, NJ: Transaction Publishers, 2002), 162.

[43] Fede, “Judging,” 1-2.

[44] Walker, ed., Reports of Cases, 80-83; Fede, “Judging,” 3; Andrew T. Fede, “Gender in the Law of Slavery in the Antebellum United States,” Cardozo Law Review 18 (1996-97): 415 n.13; Fede, People without Rights, 201-15.

[45] See, e.g., Andrew T. Fede, Roadblocks to Freedom: Slavery and Manumission in the United States South (New Orleans: Quid Pro Books, 2011), 111-14, discussing sources of pro-slavery ideology and its influence in law.

[46]. In legal parlance comity means respect for the law of other states.

[47]. Mills, “Slave Law,” 177-78; Walker, ed., Reports of Cases, 36-43; Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity (Chapel Hill: University of North Carolina Press, 1981), 228-29.

[48] Hurd, Law of Freedom, 2: 127.

[49] Walker, ed., Reports of Cases, 36; Fede, “Judging” 5, n.14; Helen Tunncliff Catterall, Cases from the Courts of Georgia, Florida, Alabama, Mississippi, and Louisiana, vol. 3 of Judicial Cases concerning American Slavery and the Negro (Washington, DC: Carnegie Institution of Washington, 1932), 283.

[50] Positive law describes man-made laws, which bestow or remove specific privileges on an individual or group.  Positive law applies only in time and place—it is not universal—and consists of statutory law and case law.  Unlike natural law, positive law has nothing, per se, to do with justice.

[51] Natural law is the principle that people have inherent rights, regardless of time, place, or legislation.

[52] Walker, ed., Reports of Cases, 42-43.

[53] Steven M. Wise, Though the Heavens May Fall: The Landmark Trial that Led to the End of Human Slavery (Cambridge, MA: Da Capo Press, 2005), 182; Fede, Roadblocks to Freedom, 153, 289-98; Fede, “Judging,” 17; Hurd, Law of Freedom, 1: 189-92.

[54] Fede, “Judging,” 5; Fede, Roadblocks to Freedom, 247-85, 287-337.

[55] Walker, ed., Reports of Cases, 43.

[56] Mills, “Slave Law,” 178-79; Claiborne, Mississippi as a Province, 470; Finkelman, Law of Freedom, 169-71.

[57] Hurd, Law of Freedom, 2: 143-44.

[58] Fede, Roadblocks to Freedom, 147-50.

[59] Volney E. Howard, ed., Reports of Cases Argued and Determined in the High Court of Errors and Appeals of the State of Mississippi, 2 vols. (Philadelphia: T. K. & P. G. Collins, 1839), 2: 337; Finkelman, Imperfect Union, 230-31; Catterall, Judicial Cases, 3: 286.

[60] Howard, ed., Reports of Cases, 2: 337-844; Mills, “Slave Law,” 180-82; Fede, “Judging,” 5-7.

[61] James Z. George, ed., Containing Cases Determined at the April Term, 1858, and a Part of the October Term, 1858, vol. 6 of Reports of Cases Argued and Determined in the High Court of Errors and Appeals, for the State of Mississippi (Philadelphia: T. & J. W. Johnson & Co., 1860), 246-321; George, ed., Containing Cases Determined at a Part of the April Term, 1959, and a Part of the October Term, 1859, vol. 8 of Reports of Cases, 235-86; Finkelman, Imperfect Union, 5-6, 287-93; Fede, “Judging,” 7-8; Catterall, Judicial Cases, 3: 360-62.

[62] Mississippi, The Revised Code of the Statute Laws of the State of Mississippi (Jackson, MS: E. Barksdale, 1857), 773.

[63] See Mississippi, Revised Code, 23-39 for the whole constitution and 36-37 for its provisions on slavery.

[64] Catterall, Judicial Cases, 3: 277-78.  Andrew Fede, “Legal Protection for Slave Buyers in the U.S. South: A Caveat Concerning Caveat Emptor,” American Journal of Legal History, 31 (Oct., 1987): 351-52.

[65] Hurd, Law of Freedom, 2: 143-44, 148 and n.1, 149; Mississippi, Revised Code, 236-37; Anderson Hutchinson, ed., Code of Mississippi: Being an Analytical Compilation of the Public and General Statutes of the Territory and State, with Tabular References to the Local and Private Acts, from 1798 to 1848: With the National and State Constitutions (Jackson, MS: Price and Fall, State Printers, 1848), 523, 533, 537-40; Charles Sackett Sydnor, Slavery in Mississippi (New York: D. Appleton-Century Co., 1933), 203-04, 216-17; Charles Sackett Sydnor, “The Free Negro in Mississippi Before the Civil War,” American Historical Review 32 (1927): 769-88, esp. 769, 773-74, 780; Fede, “Judging,” 6 and n. 22; Mark V. Tushnet, The American Law of Slavery 1810-1860: Considerations of Humanity and Interest (Princeton, NJ: Princeton University Press, 1981), 72-73.

[66] Meredith Lang, Defender of the Faith: The High Court of Mississippi, 1817-1875 (Jackson: University Press of Mississippi, 1977), 78; Mills, “Slave Law,” 179-80.

[67] Finkelman, Imperfect Union, 228-29, quote 229; Fede, “Judging,” 6.

[68] An arrest of judgment postpones or stays a court’s official decision after a verdict has been reached in a legal action or criminal prosecution, because some defect appears on the face of the record that would make it erroneous or reversible.

[69] Fede, People without Rights, 73-75; Mills, “Slave Law,” 177-78; Kenneth M. Stampp, The Peculiar Institution: Slavery in the Ante-Bellum South (New York: Knopf, 1956), 221; Finkelman, Law of Freedom, 170-71.

[70] Diane J. Klein, “Naming and Framing the ‘Subject’ of Antebellum Slave Contracts: Introducing Julia, ‘A Certain Negro Slave,’ ‘A Man,’ Joseph, Eliza, and Albert,” Rutgers Race and Law Review 9 (2008): 243-83.

[71] Tushnet, American Law of Slavery, 75; Fede, “Judging,” 9.

[72] Wiethoff, Peculiar Humanism, 68, 116-17, 146, 158; Lang, Defender, 108.

[73] Walker, ed., Reports of Cases, 86; Catterall, Judicial Cases, 3: 283-84.

[74] Walker, ed., Reports of Cases, 84; Fede, “Judging,” 15-16, 20.

[75] Walker, ed., Reports of Cases, 42.

[76] Ibid., 83; Davis, Games of Property, 30, 83.

[77] Lynch, Bench and Bar, 150.

[78] A. E. Keir Nash, “A More Equitable Past: Southern Supreme Courts and the Protection of the Ante Bellum Negro,” North Carolina Law Review 48 (1969-70): 198-99, quote, 199.

[79] Lang, Defender, 108-10, quote 108.

[80] Szasz, Liberation by Oppression, 162.

[81] Walker, ed., Reports of Cases, 85.

[82] Ibid., 42.

[83] Colin Dayan, The Law Is a White Dog: How Legal Rituals Make and Unmake Persons (Princeton, NJ: Princeton University Press, 2011), 54-55.

[84] Fede, People without Rights, 74; Walker, ed., Reports of Cases, 84.

[85] Dictum is a statement of opinion considered authoritative and even persuasive because of the dignity of the person making it, although it is not binding under stare decisis.  Legal practitioners in the U.S. colloquially use dicta to refer to any statement by a court which extends beyond the issue at bar.

[86] Fede, People without Rights, 73-74; Fede, “Judging,” 18-19.

[87] Fede, People without Rights, 74-75.

[88] For more on the implications of Decker for the humanity of slaves, see Tushnet, American Law of Slavery, 75.

[89] Mills, “Slave Law,” 161.

[90] Ibid., 175.

[91] Ruth Wedgwood, “The South Condemning Itself: Humanity and Property in American Slavery,” Chicago-Kent Law Review (1992-1993): 1392-94, 1397-98.

[92] Fede, “Judging,” 25-28.

[93] Mills, “Slave Law, 175; Davis, Games of Property, 30, 83.

[94] Mississippi, Revised Code, 379; Fede, “Judging,” 14 and n.49.  For non-fatal slave abuse in the South by masters and overseers, see Fede, People without Rights, 105-21.

[95] Mississippi, Revised Code, 297; Fede, “Judging,” 14.

[96] Fede, People without Rights, 4-5, quote 4; Fede, “Judging,” 1-2.

[97] Fede, “Judging,” 5.

[98] Thomas R. R. Cobb, An Inquiry into the Law of Negro Slavery in the United States of America. To which in Prefixed, An Historical Sketch of Slavery, vol. 1 (Philadelphia: T. & J. W. Johnson & Co., 1858), 5-6.  For a discussion of the impact of Cobb’s work, see Paul Finkelman’s Introduction in the reprint edition of Cobb’s book published by the University of Georgia Press (Athens) in 1999.

[99] Cobb, Inquiry into the Law of Negro Slavery, 5-64.

[100] George, ed., Containing Cases Determined at a Part of the April Term, 1959, 316-17, 320; for the whole decision, see 316-20; Fede, “Judging,” 24-25.

[101] Fede, People without Rights, 75; Fede, “Judging,” 23-24.

[102] Baltimore Patriot, Aug. 26, 1828.

[103] Mills, “Slave Law,” 235.

[104] Fede, “Judging,” 28.

[105] Lowry and McCardle, History of Mississippi, 460-61.

[106] Mary Louise Flowers Hendrix, Mississippi Court Records from the Files of the High Court of Errors and Appeals, 1799-1859 (Greenville, SC: Southern Historical Press, 1999), 276-79.

[107] P. L. Rainwater, “The Autobiography of Benjamin Grubb Humphreys,” The Mississippi Valley Historical Review (1934): 236.

[108] Commercial Bulletin, January 17, 1839.

[109] Ibid., December 4, 1854.

[110] Mississippi State and Territorial Census Collection, 1792-1866, accessed through the Ancestry.com on-line database at http://search.ancestry.com/search/category.aspx?cat=35 on 27 July 2012.