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Posted December 2017Harry and Others vs. Decker & Hopkins2 is one of the earliest known opinions of the Supreme Court of Mississippi. It is remarkable in many ways. The summer of 2018 will mark its bicentennial.
Freedom-by-residence cases brought by slaves seeking freedom were not uncommon in the years leading into the 1850s. Harry was the first known case where at the end of the day the court of last resort in a southern slave state had ruled that the slaves were free. Likely from a very early age, Harry and two others whose gender is not known had been enslaved in Virginia. In 1784, their master, John Decker, took them to lands which — three years later — became "free soil" as a matter of federal law.
But would this matter where slavery was not only legal but was also sanctioned and regulated by the new state's constitution?
Three years after Harry and his fellow slaves won their freedom in a Mississippi court, a white man killed a slave — a black man who was a stranger to the white man. Isaac Jones was that white man, and he had acted with malice aforethought. "The taking away the life of a reasonable creature, under the king's peace, with malice aforethought, … is murder at common law." 3
And so on July 27, 1821, the sheriff of Adams County, Mississippi, had Isaac Jones hanged. The humanity of the slave whose name is not known, and who was not so fortunate as Harry and the others, was vindicated posthumously.
Thirty-five years later, what little was left of the courage and hope of men and women who had been enslaved came crashing down when the U. S. Supreme Court decided the Dred Scott case and fanned the flames that led to war. Mississippi had backpedaled in the 1830s. Its holdings were checkered for the next twenty-five years.
We now know that there was much more to Harry is included in Walker's Reports, the first volume of reports of decisions of the Supreme Court of Mississippi. In the fullness of time a Natchez journalist told the nation of
a decision alike honorable in our state and in humanity. It appeared that, some time in the spring of 1816, twenty-eight black persons, who were slaves for a certain period of time, were brought by the defendants from Indiana, and sold in this state as slaves for life. By the decision of the Court and Jury they were restored to entire freedom.4
And so the calendar has scheduled Harry's bicentennial for the summer of 2018. Its clarion call should be honored. There was a time when Mississippi was first in doing what was right, not last, a time when the stakes quite high.
John Decker (ca. 1719–1790) and his family hailed from Kingston in the Dutch country in New York. Soon after the Revolution succeeded, the Deckers settled in "the neighborhood of Vincennes" in the Indiana territory, bringing with them Harry, Bob, Anthony, Rachel and many other slaves.
Decker Township was on the lower Wabash River — today the boundary between southwestern Indiana and southeastern Illinois — until it flows into the Ohio River, ending to the south against northwestern Kentucky.
The Constitution was not the only important document drafted in 1787. Soon after the Deckers established their Township, the Congress enacted the Northwest Ordinance of 1787. Article the Sixth read "There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in punishment of crimes whereof the party shall have been duly convicted."
From the get-go, John Decker had been aware of the problem this new federal ordinance posed for his family's slaveholdings. His five sons inherited the problem when John died in 1790. Luke Decker (1760–1825) was the leader of that five pack.
On 1816, the matter became more urgent. Indiana was admitted to the Union. The Indiana Constitution was more specific than the Northwest Ordinance. Article I, Section 1, in practical effect enshrined the "inalienable rights" clause in the Declaration of Independence in Indiana constitutional law.
Completed on June 29, 1816, the Indiana Constitution had been a shot across the bow to men like the Deckers. Statehood lay ahead, and it was certain to arrive in the not too distant future. Life was about to change for the slaveholders in the southern part of the soon-to-become new state.
With appropriate dispatch, the second generation Decker sons gathered Harry and at least twenty-seven other slaves and began navigating downstream. There are no known records of the voyage. Luke saw to it that his son, Hiram Decker (1794–1863) — John Decker's grandson — was in charge, along with other hands who knew the course.
As the Decker vessel headed down-river, Hiram had but one purpose — sell Harry and the others as soon as practicable and for the best price they could get.
"The Natchez slave market, along with [one other], became the most active in the whole South" in the years after the War of 1812. This is consistent with Judge Michael P. Mills' relatively recent showing that, "[f]rom the beginning, the new state [of Mississippi] would be a major destination point for human cargo 'sold down the river' from border states."5 The Deckers' destination was almost certainly Natchez.
Flatboats or "broad-horns" were in use for transporting a variety of cargoes, including a large number of slaves. Downstream navigation usually meant a float rate of about four miles per hour. Approximately 600 river miles lay between Cairo, Illinois, and Natchez. Commonly the slaves were confined by chains in steerage or on open decks. In the latter instance, slaves would be "forced to sit on open decks, usually surrounded by boxes of cargo and supplies."
Decker's human cargo-laden vessel arrived in Natchez in the late summer or early fall of 1816. Once disembarked and offloaded, Decker sold at least twenty-eight slaves "as slaves for life." But in short order thereafter, Harry and his companions escaped.
The circumstantial evidence leaves little doubt but that at some timely point these escapee slaves found counsel at the hands of lawyers like Lyman Harding and Tully Robinson. By late October of 1816 their plight was formally before a trial court of the Mississippi Territory, called "a superior court holden at the court house in and for the county of Adams."
We know that in the summer of 1818 the Supreme Court of Mississippi decided the case captioned Harry and Others vs. Decker & Hopkins. The opinion issued by the high court says John Decker and a man named Hopkins were the appellants in that case. But John had been dead for twenty-eight years. Luke Decker had inherited the bulk of his father's estate.
In his opinion for the court, Judge Joshua G. Clarke makes a reference to "old Decker", and then to "those who claim under him." October 1816 witness subpoenas suggest that Hiram Decker was in fact the Decker defendant in Harry and Others' petition for freedom suit.
Still there are gaps in what is known along the way. As much as we hope that these puzzles may at some point be answered definitively, by records of authenticity and detail, they cause no concerns for the central premise and achievement of this important constitutional encounter in Mississippi's history and whose bicentennial lies a few months ahead.
The Supreme Court of Mississippi was still a gleam in the eye — an imminent gleam, to be sure — when Harry and his companions were force fed into the Natchez slave market. That court formally sat at the tail end of spring and then through the summer of 1818. Statehood had been formally accomplished back on December 10, 1817.
The legal landscape in Mississippi recognized the practice of slavery, before and after statehood. A discrete but unnumbered article labeled "Slaves," and containing two numbered sections, was included in the constitution drafted in the late summer of 1817.6 Section 1 treated slaves as property in the eyes of the law in any number of contexts. Of concern here, the General Assembly was without power to prevent new settlers coming to Mississippi from bringing their slaves with them.
In early Mississippi constitutional law, "slaves" included "such persons as are deemed slaves by the laws of any one of the United States, so long as any person of the same age or description shall be continued in slavery by the laws of this state." After all, it was the loud and clear public policy of the new state that settlers from older parts of the country be encouraged to emigrate, bringing their slaves with them, and making their homes and fortunes in the new state.
There was no Northwest Ordinance for slaves in pre-statehood Mississippi to turn to for help. The Georgia Compact of 1798 had established the Mississippi Territory and declared applicable the first five articles of the Northwest Ordinance. Article 6, however, had been omitted, and conspicuously so. The Georgia Compact limited slavery only in the sense that the foreign slave trade was declared illegal in the Mississippi Territory.
Mississippi was still a territory at the time Decker's vessel descended the River until Hiram reached what he thought were the more amenable territorial waters of the not-quite-yet twentieth state. The state constitution would in time grant the General Assembly of Mississippi "full power to prevent slaves from being brought into this State as merchandise." But not until December of 1817.
At the moment, however, Luke Decker was more concerned with the constitution of the soon-to-be-nineteenth state when his vessel — his son, Hiram at the helm — embarked from Knox County, Indiana, for more friendly waters, his valuable cargo and merchandise including Harry and the other slaves.
Cases like Harry and Others are difficult to discuss today. Slavery was a monstrous evil. The level of moral wrong and harm from slavery in the antebellum South is such that saying anything positive about participants in the practice invites opprobrium — from within the speaker and from without.
Harry and his companions are the heroes of this story, if only more could be known about their story.7 These are like unknown soldiers.
Indeed, it is not even known whether or how many of the "others" who accompanied Harry may have been women. As with Bob and Anthony back in Indiana, it took courage "to confront a man of [Luke] Decker's reputation." All have earned a unique place of honor in our history.
This brings to mind an insight of Justice Evelyn Keyes of Houston,Texas, though a native of Greenville, Mississippi. "[T]he study of the humanities by lawyers and judges … acquaints us with different modes of perception and understanding of human predicaments and of the essential dignity and worth (or evil [or ambiguity]) of those caught within those predicaments …"8 Keyes points to "revelations of the dehumanizing experience of slavery captured by Toni Morrison's Beloved."
In the summer of 1818 the Supreme Court of Mississippi affirmed the judgment granting Harry and two companions their freedom. Judge Joshua G. Clarke began his opinion for the court with the fact that "the three negroes were slaves in Virginia." The constitution emerging from the convention in the late summer of 1817 never affirmatively said, "slavery is legally permissible in this state," but it assumed as much. The lack of an affirmative constitutional blessing for slavery left room within which Clarke could maneuver.
Clarke accepted the above premises, albeit sub silentio. He had to. He argued, however, that these were not the outcome-determinative facts before the court in the summer of 1818.
While freedom-by-residence cases later became familiar, Joshua Clarke had no such precedent to guide him. Border slave state Kentucky would grant such a claim for freedom in October of 1820.9 Virginia so held two months after that.10 Louisiana's judicial acceptance of freedom-by-residence lay six years in the future.11 The important Missouri jurisdiction — it wasn't even a state at the time Harry was decided — was more than six years away from formally recognizing freedom-by-residence.12
In the summer of 1818, Clarke was on his own. Still, he made it clear that he understood his responsibility to decide the case according to accepted legal methods, considering only legal premises known in those times and applied to the relevant facts. Clarke well knew that "the importance of the question is great." While the outcome determinative facts may have been undisputed, the proper understanding of the controlling legal question was very much "controverted."
The basic rationale of freedom-by-residence cases was that, if, with the consent of his owner, the slave lived, resided on "free soil" for a significant period of time, the legal bonds of slavery were deemed expunged.13 These bonds did not reattach if the former slave was later found in a slave state.
This theme is found in Harry. No one moving to a new state or territory, establishing a new home and means of livelihood there, bringing his possessions with him, had a reasonable expectation that the laws of that state or territory would not someday be changed to his personal disadvantage. A new citizen was deemed to acquiesce in the law-making and law-altering processes of his new home jurisdiction. All were subject to what in time became familiar and known as the petty larceny of the police power.
The formal enforceability point aside, Clarke presented the case for state authority "to effect a general emancipation." Harry may have been the first time the courts of the new state of Mississippi would be called upon to adjudge a freedom-by-residence suit, but it certainly would not be the last. Lots of slaveholding men like Luke Decker lived in other states north of the Ohio River (or the Mason-Dixon Line).
With improved technology in river navigation and transportation, any number of such men could be expected to use a Decker-like strategy to liquidate their assets on advantageous terms. To be sure, points the court might make on an issue not properly justiciable in the case du jour would be considered dicta and not binding precedents. An exposition of the law on the effect vel non of freedom-by-residence emancipation in another state could nonetheless be useful in future cases, if that discussion were well reasoned and persuasive. And not only future Mississippi cases. The soon-to-follow decisions in Kentucky, Virginia, Missouri and adjacent Louisiana lay in the future.
Clarke cites the teachings of Jean-Jacques Rousseau. Each person gives "all his rights and privileges to the whole community." "[A]ll are in the same circumstances, so that no one can be interested in rendering burthensome their common connection."
Clarke qua Rousseau follows with an incisive insight.
If anyone had a right distinct from another, which he pretended had not been surrendered, each individual might question the acts of the social compact, and if this were permitted, it would destroy itself, as there would be no common umpire to appeal to, a state of nature would exist, and the social compact would be a splendid bauble.
We read these words, and they immediately call to mind the first section in the Declaration of Rights in Mississippi's first constitution.
That all freemen, when they form a social compact, are equal in rights, and that no man or set of men, are entitled to exclusive, separate, public emoluments or privileges, from the community, but in consideration of public services.14
Read together with Section 2, little doubt is left that Clarke was not just a delegate to the convention held in little Washington, Mississippi. He had played a substantial drafting role at the convention. With or without the awareness of his fellow delegates, Clarke had infused the core political ideology of Jean-Jacques Rousseau at the heart of the new constitution.
Legal questions of retroactivity were central. The Deckers argued that freedom-by-residence laws could apply prospectively only. Otherwise vested property rights would be disturbed. This required the court to face a question of constitutional dimensions.15 No one doubted that Harry and the others were in slave legal status before they were ever brought to land "in the neighborhood of Vincennes." And before there was an Ordinance of 1787. As this was so, neither the federal Northwest Ordinance, much less the pending new Indiana Constitution, could change their status, or so the argument would go.
When Harry reached the Supreme Court of Mississippi in the summer of 1818, the meaning and effect of the positive law on retroactivity vel non was disputed, subject to differing constructions and applications. In this setting Clarke answered,
But it is contended that the provisions of the constitution admit of a different construction — that it is prospective, and to give it the meaning its language imports, would violate vested rights. What are these vested rights, are they derived from nature, or from the [positive] municipal law? Slavery is condemned by reason and the laws of nature. It exists and can only exist through [positive] municipal regulations, and in matters of doubt, is it not an unquestioned rule, that courts must lean "in favorem vitae et liberatatis." … How should the Court decide, if construction was really to determine it? I presume it would be in favour of liberty.
It is easy to applaud Clarke's decision. Earlier in the opinion, he had articulated his understanding of the law of nature, providing the Mississippi Supreme Court's first and only discussion (to date) of Jean-Jacques Rousseau's social contract. Such talk was still in the air in 1818, revered by many, though its heyday in Jefferson's introductory clauses of the Declaration of Independence was almost forty years in the past.
Judge Clarke implicitly followed the 1772 King's Bench opinion of Lord Mansfield in Somerset v. Stewart.16 Slavery, according to Lord Mansfield, was "incapable of being introduced on any reasons, moral or political; but only [by] positive law[.]"17
Whatever de facto form of submission Harry and others may have endured after 1787, legally they had become free men. Whether the positive law may have reattached the bonds of slavery once Harry and the others entered Mississippi waters was sufficiently open to question that the case was controlled by the maxim "in favorem vitae et liberatatis." … How should the Court decide,…? I presume it would be in favour of liberty."
There are legal problems — realities, if you will — with Judge Clarke's most famous judicial utterance. Does he have a defense to the acrid criticism: that's just your opinion? Have you really rendered a judgment which emanated from a reasoned application of legal premises that satisfied the criteria for legal validity?
In fairness, Clarke reasoned through the points in his opinion in the summer of 1818 more carefully than most appellate judges do today. But he found himself stuck in the end with the choice for which he is celebrated.
Clarke decided and adjudged in favor of what he thought the law ought to have been. Does this differ from Olmstead v. United States, more than a century later, an exclusionary rule search and seizure case, where Justice Holmes in dissent faced up to the fact that no law mandated this result or that, and then famously said, "We have to choose, and for my part I think it a less evil that some criminals should escape than that the government should play an ignoble part."18
Considered today, was Clarke's reasoning any more acceptable to those who disagreed than are Roe v. Wade 19 and progeny20 acceptable to those who believe abortion to be a great moral wrong? Conversely, a ruling that Harry and the others were still Decker's slaves — or Hopkins' after their sale — would have been just as outrageous as overruling Roe v. Wade would be to those who believe that it would be a great moral wrong to deny a pregnant woman the right to make the terrible choice whether to have an abortion.
Thoughts of natural law or the law of nature have long been interesting and at times uplifting, but no man may be hanged or enslaved by virtue of the natural law alone, nor may he be acquitted or freed. To be sure, we wish to celebrate Judge Clarke and in particular Harry, as its 200th birthday approaches. A barely known human being named Harry and others utterly unknown were found and placed on the side of the angels by Justice John McLean in 1857 in his dissenting opinion in the Dred Scott case.21
But time has taught that constitutional constructions "when the importance of the question is great" should be made of sterner stuff than Clarke brought to bear, if that is at all possible.
There is a limited place for the idea of natural law22 in a constitutional democracy. When the positive legal materials play out without producing a reliable decision, a judge has no choice but to look elsewhere. In Jones the positive legal materials were the common law of homicide as accepted in Mississippi, any superseding statutory law, and ultimately the Constitution of 1817,23 reliably applied, of course, to the relevant facts of the case, and according to the common law adjudicative process of reasoned elaboration (which is not to be confused with some imaginary process of mathematical or mechanical elaboration).
Three years earlier in Harry, the positive legal materials included the Northwest Ordinance of 1787, and implicitly the Supremacy Clause of the Constitution of the United States.24 Judge Clarke thought it included the Indiana Constitution of 1816, although he may have erred in this. And the positive law of Mississippi included the "judicial power" identified and authorized in its constitution25 and laws.26 Within these, the court was charged to consider the legislative facts of "what was expedient for the community concerned."27
Without arguable doubt, the legislative facts include the humanity of the affected community, the fears and prejudices that cause men to fail, the objectively foreseeable consequences of the case, and the reasonable reliance, if any, of persons affected.
The legal materials became scant when the court came to the retroactivity issue in Harry, excluding the two firmer foundation points found via Monday morning quarterbacking and set out above. Luke Decker's defense was that he and his predecessor in title — his father — held property rights which had vested prior to the Ordinance of 1787.
A careful reading of the opinion of the court suggests that Clarke saw the seriousness of this defense, perhaps more so than do sympathetic readers 200 years later. He had tried to head this one off. Early in his opinion, Clarke analyzed the treaty of cession whereby Virginia has surrendered the Northwest Territory to the United States. Nothing that happened before July of 1787, Clarke argued, stood as an impediment to the confederated states enacting and the United States later recognizing and enforcing the Northwest Ordinance.
A thinking lawyer reading this argument might find it a bit iffy. That slavery had never been imposed by positive law in the lands Virginia ceded in 1784 did not mean that, prior to their removal, Harry and the other two had not been slaves in Virginia proper. Remember, at that time, the lands we now know as the state of West Virginia were — until 1863 — a part of Virginia proper. Clarke was smart enough to see this.
Recall that Clarke had exclaimed "Slavery is condemned by reason and the laws of nature." As a matter of fact he was surely correct, so long as he limited the source of condemnation to civilized men of reason and moral understanding. As a matter of enforceable positive law, something very different was happening in the penultimate paragraph of the Harry opinion. Clarke had to decide the case.
Judges have no authority not to decide cases within their jurisdiction.28 Judge Clarke had to adjudge Decker's vested rights defense, and to do so forthrightly. There was no legal premise of speed limit precision and application available to help. So he turned to the maxim. Perhaps he gilded the lily with "it is the unquestioned rule." No matter. He had to decide, and he decided well and legitimately.
Clarke honored his duty in exercising the constitutional judicial power to draw on the best premises he could find. Lest the point be overlooked, in doing so, "in favorem vitae et liberatatis" as a rule of construction became incorporated into the positive law of Mississippi. Judge Clarke did this and more, first and before any other state.
History tells us that Judge Clarke's tour de force did not last. Judge Mills told that sad story back in 2001. Others might place Mississippi's story in the context of the hell-bent-on-self-destruction view of social existence that practicably blinded the South as a whole.29 Fear and isolationism and their alter egos, southern nationalism and nativism, grew. And more fear, as Armageddon approached. The nation's survival of the fiery trial through which it passed, plus the Reconstruction Amendments to the U. S. Constitution, rendered Harry unnecessary.
Joshua Clarke set a standard. Coming across Clarke's citation of Rousseau in Harry brings to the mind a jewel Judge Learned Hand offered years ago in this context.
I venture to believe that it is as important to a judge called to pass on a question of constitutional law, to have at least a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare, and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with the books which have been specifically written on the subject.30
With little doubt, Hand would have assented to the addition of Rousseau, probably placed between David Hume and Immanuel Kant, and with an apology for his omission.
The law and its centerpiece, the exercise of judicial power, most assuredly are a dimension of the humanities. These have arisen from human experience and govern human behavior. Their end is nothing less than a society in which we should want to live.
Mississippi born and bred Evelyn Vincent Keyes also notes the other side of the coin, "[O]nly a morally literate and humanistically informed people can maintain a free society against the dehumanizing forces of totalitarian ideology and destructiveness that constantly assail it, for only then will they know what is at stake."31 "Ay, there's the rub."32 Now, as it was 200 years ago.
Regarding Joshua Clarke, it would be hard to improve on what Judge Mills has had to offer. "Great-souled men and women must occasionally fret their hours on the stage and steer institutions aright … Joshua G. Clarke possessed the courage, idealism and will to" do what was needed in 1818. "Clarke establishes that men of good will and fair minds can speak the truth, even in the worst of times."
In the end, there can be no serious doubt but that "the high point of antebellum Mississippi judicial sentiments supporting universal freedom and human compassion was clothed in the robe of one Joshua G. Clarke."
There is a place for humanity in the use and application of our constitution and laws, albeit a limited one. Judge Clarke provided two instances — Harry and Jones — where a court has turned to the humanities, ideas of our fleeting existence as well as insights from Rousseau, to enrich the quality of its adjudications. He enriched the quality of our history, and our lives. His lessons endure.
We have little or no authority outside that practical corner and should confine ourselves thereto. But we should never forget that this practical corner includes John Marshall's counsel that judges should never "decline the exercise of the jurisdiction which is given," lest they commit "treason to the constitution."33 And that this is and always has been true in Mississippi and in all states with a constitution that creates and upon a chosen few confers the judicial power.
Men and women, lawyers and judges and jurors, citizens all, do have an opportunity that the proverbial blunt instrument — the process of adjudication — which they work with daily be made and seen a bit more discerning. With hopeful hearts, people pursue optimal permissible levels of humanity in adjudication, their opportunities for good legal practice made richer, their souls less fearful of those who are different, or merely beg to differ.
