Book reviews: May 2022

The Legal Life of Judah P Benjamin 

William C Gilmore

PUBLISHER: EDINBURGH UNIVERSITY PRESS
ISBN: 978-1474482004
PRICE: £75 (E-BOOK £75)

Perhaps I might be forgiven for wondering, when I was offered the chance to review this book, what had attracted Edinburgh University’s Emeritus Professor of International Criminal Law to the idea of writing a biographical sketch of the author of Benjamin’s Sale of Goods. I accepted the invitation to review the book out of curiosity, as much as anything else. It gave me my answer, but it also introduced me to a fascinating story.

The link is R v Keyn (1876) 2 Ex D 63, usually known as The Franconia, which was argued on behalf of the prisoner by Judah P Benjamin. Ferdinand Keyn commanded The Franconia, a German vessel which collided with a British ship, The Strathclyde, about two miles off Dover. The Strathclyde sank, one of her passengers was drowned and Keyn was prosecuted for manslaughter. The defence challenged the jurisdiction of the English courts on the ground that Keyn was a foreign national who had at all times been on a foreign registered ship. That challenge ultimately succeeded on appeal, to the discomfiture of the English law officers, who (in an early manifestation of the expansive jurisdictional claims often made for English law) had opined that there was jurisdiction.

The UK Government’s response was to legislate to vest jurisdiction over offences committed within territorial waters, even if committed on board a foreign ship, but the case has retained importance throughout the common law world in relation to disputes about rights to oil and gas resources of the continental shelf. Criminal jurisdiction is one of the most basic aspects of international criminal law and Bill Gilmore has also, at various times, made significant contributions to the development and literature of the law of the sea.

At the time he presented Keyn’s appeal, Benjamin was a barrister on the Northern Circuit. He was later Queen’s Counsel and bencher of Lincoln’s Inn. Previously, however, he had been a member of the United States Senate, had probably been offered (and declined) nomination to the US Supreme Court and became the holder of a series of three cabinet posts in the Confederate States of America under President Jefferson Davis. Although keen intelligence does not nowadays seem to be a necessary qualification for membership of the US Senate, the number of prestigious appointments which Benjamin held and the extent of his professional success in both America and England indicate that he was a man who combined great intellectual gifts with remarkable ability and a large dose of determination.

In this compelling book, Bill Gilmore outlines Benjamin’s early life and modest beginnings. He was born in the West Indies to Jewish parents who had emigrated from England. He was admitted to the Louisiana Bar, where he “leaped to distinction amongst the foremost in the profession”. Gilmore records that his rapid rise was assisted by his collaboration with a slightly more senior lawyer in the production of a digest of decisions of the Louisiana Supreme Court. He became secure financially and turned some of his attention to politics and then – more controversially to our eyes – to owning a share in a sugar plantation and a substantial number of slaves.

Benjamin continued to practise law (especially in the appellate courts) and made a notable appearance for the appellants in The Creole, a maritime case in which the insurers whom he represented resisted a claim for indemnity made by the owners of a shipload of slaves who took over the vessel and put into Nassau (a British possession where slavery had been abolished some years earlier), thus obtaining their emancipation. Much of the argument was about the law of the sea, but it is interesting that one of the arguments presented by Benjamin (though not the decisive one) was that slavery is a contravention of the “law of nature”.

Notwithstanding that, as Gilmore records in his second chapter, Benjamin was, in the US Senate, a powerful advocate for the proposition that “a negro, under the common law of the continent [of America] was merchandise, was property, was a slave”, and that the burden of proving emancipation by manumission lay on the one claiming to be free. In due course, Benjamin committed himself to secession by the southern States and to the organisation of “a Southern Confederacy”. He bade farewell to the US Senate and returned to New Orleans, where he quickly became a member of the Confederate cabinet.

The failure of the Confederacy and Jefferson Davies’s arrest for treason convinced Benjamin that he had to flee the country. He arrived in Southampton on 30 August 1865. Gilmore reproduces, in an appendix, Benjamin’s own account of his clandestine departure from America and his journey to England. It should probably be turned into a film. He decided to commence legal practice in England and persuaded Lincoln’s Inn to waive the usual examination requirements. He also managed, with some difficulty, to secure a pupillage with a well-respected senior barrister. Having lost most of his money when the Confederacy fell, he needed an income as soon as possible and, deploying ingenious arguments, he persuaded Lincoln’s Inn to waive the normal length of study requirement for a pupil barrister.

It is one thing to call to the Bar. It is another thing altogether to build a practice. Benjamin did what he had done in New Orleans. He wrote a book; and so it is that we have Benjamin’s Sale of Goods. It was very well received and work became abundant. He took silk in 1870 and concentrated his attention on appellate work, just as he had done in America. His background in the mixed system of Louisiana, with its substantial Roman law influence, meant that he was well instructed in Scottish appeals to the House of Lords. His appellate practice brought him back to the international law of the sea in The Franconia.

Ill health forced Benjamin to retire in 1883. He did not enjoy a long retirement, but the obituaries published on his death less than a year later were fulsome, on both sides of the Atlantic. Bill Gilmore comments that his legacy is more as a distinguished jurist than as a somewhat flawed and controversial politician. That must be right; but, as told by Gilmore, Benjamin’s is an inspiring story of what can be achieved by a lad o’ pairts from humble beginnings. The book is short but engrossing, and comes highly recommended.

Sheriff Alastair N Brown