Academic journal article Harvard Law Review

International Norms and Politics in the Marshall Court's Slave Trade Cases

Academic journal article Harvard Law Review

International Norms and Politics in the Marshall Court's Slave Trade Cases

Article excerpt

Ten years ago, an essay in The American Historical Review suggested that renewed attention to the Founding's international context presaged a "paradigm shift in early American history." (1) A decade of scholarship exploring the Founding's reliance on international law and its concerns about national security and international recognition have gone a ways toward fulfilling this prophecy. (2) Yet the international legal history of the pivotal period that followed the Founding--when the country emerged as an Atlantic power--continues to rest uneasily on the trope of a blunt transition between the supposedly naive universalism of the eighteenth-century Enlightenment and the apparently shrewd realism of the late nineteenth century. (3)

Two cases have stood as emblems of this transition: United States v. La Jeune Eugenie (4) (1822) and The Antelope (5) (1825). Both were leading U.S. cases on the international law of the slave trade, which was in flux in the early nineteenth century. (6) Both Britain and the United States passed acts in 1807 that outlawed the trade as a matter of domestic law in 1807 and 1808 respectively. (7) Britain then campaigned to outlaw the trade internationally, beginning with agreements at the post-Napoleonic conferences. (8) By the early 1820s, when the capture of foreign slavers by U.S. vessels on the ground that they had violated international law presented the question of the foreign slave trade's international legal status to the federal courts, the answer was far from certain. In La Jeune Eugenie, Justice Joseph Story, riding circuit, ruled that the slave trade violated the law of nations, whereas Chief Justice John Marshall held in The Antelope that international law permitted the trade. Scholars have conventionally read these cases to represent a shift from the Enlightenment's reliance on natural law--that is, universal principles deducible by reason--to the late nineteenth century's focus on positive law, the view that only the command of the sovereign was law. (9) By implication, the move from natural law to positive law mapped onto a parallel move from universalism to parochialism because Story's natural-law position suggested that both municipal and international law were part of a universal legal order, whereas Marshall's positive-law approach allowed for as many distinct legal orders as there were sovereigns. (10)

However, this understanding of the Marshall Court's slave trade cases overlooks not only Story's and Marshall's mixed reliance on natural law and positive law but also the outcomes of the cases and, crucially, their political context. Although Story condemned the slave trade under international law, he ultimately transferred the French slaver in the case to the French king out of comity, rather than confiscate it according to his theory of international law. And while Marshall condoned the slave trade under international law, he ended up releasing more Africans aboard the captured slaver than the lower courts had by viewing the evidence establishing title to the Africans in the light least favorable to the alleged owners.

This Note recovers the political context from the correspondence and papers of the primary actors to show that, despite their differences over international law's nature, Story and Marshall ultimately adopted similar strategies toward international law that neutralized the implications of their theoretical differences. Both Justices resolved the specific disputes before them in ways that offset their opining on international norms, which allowed them to appeal to audiences with conflicting interests. Story gave the international community a progressive anti-slave trade case while simultaneously protecting the Monroe Administration in its delicate relations with France. Marshall, writing after the international legal status of the slave trade had become more politically toxic, guarded against provoking the South with an antislavery decision based in international law, but he deftly handled the resolution of the case in order to protect his Court from appearing brazenly proslavery to elites in the Atlantic world. …

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