Monday, July 29, 2013

Fede on Mississippi Supreme Court Judge Joshua G. Clarke

Andrew Fede has published "Judging Against the Grain? Reading Mississippi Supreme Court Judge Joshua G. Clarke's Views on Slavery Law in Context" in the May 2013 issue of the FHC Annals, the Journal of the Florida Conference of Historians.  That issue also includes an article by J. Calvitt Clarke, III, a descendent of Judge Clarke and a history professor emeritus at Jacksonville University.  Here is an abstract of Fede's article:
This article reviews Mississippi Supreme Court Judge Joshua G. Clarke's one signed slavery law opinion, State v. Jones (1821)(affirming defendant's conviction for murdering a slave), and the Court's unsigned opinion in Harry v. Decker and Hopkins (1818)(affirming freedom judgment in favor of enslaved petitioners), which the author contends that Clarke wrote.  According to the article, these opinions stand out because they were not typical of the dominant trend in the antebellum Southern common law of slavery.

The article summarizes Clarke's biography, about which little evidence is available.  Clarke moved from Pennsylvania to the Mississippi territory.  By 1804 he was practicing law in the territory.  He served in the territorial legislature and in the state's first constitutional convention before the legislature elected him in 1818 to serve on the first Mississippi Supreme Court.

The Jones and Harry opinions echo, without citation, Lord Mansfield's words in Somerset v. Stewart, suggesting that slavery was contrary to the common law and that it thus required statutory support.  In Jones, Clarke extended this view to assert that enslaved people retained all of their common law rights that statutes did not explicitly deny to them.  Clarke died in 1828.  Fede contends that there is not enough evidence to establish whether he would have consistently extended this jurisprudence to other slavery law issues and cases. 

Nevertheless, the article concludes that the Jones and Harry opinions express views that were contrary to the principles that emerge from the antebellum Southern cases denying to slaves the common law's equal protection, even when the legislatures had not done so, and denying to slaves freedom judgments, even when there was clear evidence that their owners intended to free them.

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