The Unbreakable Biddy Mason
About the Black Healer Whose Case Became a Mainstay of Judicial Independence
Disclaimer: The author is directly affected, in his legal practice, by the laws and policies challenging and defending independent lawyering addressed in this post.
Dear Reader,
For those who believe that an indigent, new citizen, non-white mother cannot become a real estate mogul by offering her professional services to Californians, think again. For Biddy (“Bridget”) Mason, who was a Black woman slave taken into California — a free state — by her Southern-Mormon masters from Mississippi by way of Utah, eventually became a wealthy landowning Angelino. But first, Ms. Mason had to overcome a corrupted lawyer, who apparently took a bribe from her master, to win her habeas corpus case to free herself, another Black woman named Hannah, and their several children.
Though Ms. Mason’s economic prowess is generally the focus of most studies about her, the case she brought in Los Angeles, to free herself and many others, has special significance in today’s fraught legal context. In her case, Mason v. Smith, Ms. Mason’s lawyer moved the court to dismiss her writ of habeas corpus in exchange for an apparent bribe of a few hundred dollars. Her lawyer seems to have argued that the money would have made Ms. Mason’s life better in Texas, where her masters wanted to legally make her a slave again after moving her to live in California where the laws already made her a free woman.
Judge Benjamin Hayes (sometimes spelled “Hays”) would not have it. He decisively moved on his own motion against Ms. Mason’s lawyers who sold out their clients’ paramount interest of securing their freedom in California.1 Citing to California’s kidnapping statute, Hayes implied that Ms. Mason’s masters were in the process of criminally kidnapping her by force or fraud, even stooping to the corruption of bribing Ms. Mason’s lawyers to dismiss her case.
In response, Judge Hayes implicitly extended the 1772 English freedom suit, known as Somerset’s Case, by essentially holding that California was as free as England by law. Even more interestingly, Hayes cited to an 1824 Louisiana Supreme Court case, Lunsford v. Coquillon, that appeared to uphold the principle that slaves were once free, always free that expanded upon the ruling of Somerset, at first, in the American South.2 Thereby, it appears that Southern Courts invented this principle of freedom more broadly than Dred Scott v. Sandford misleadingly implied when it referred to Missouri’s compromise as though Missouri’s freedom suits did not have a basis in law upon which the other Southern States generally concurred.
The scandal of Dred Scott’s Hegelian reading of the Declaration of Independence’s promise that all men are created equal to mean that not all men are created equal was underpinned by many layers of illogical misrepresentation. The least of which was that Dred Scott used the Fifth Amendment to strike down the Missouri Compromise, which was already then repealed. Thus, Chief Justice Roberts’ citation of Dred Scott’s use of the Fifth Amendment as a warning of a fundamental problem with expanding upon substantive rights in Obergefell v. Hodges was a complete misfire, because the error in Dred Scott was jurisdictional rather than substantive as there was no case or controversy to decide regarding the already repealed Missouri Compromise.
However, the brunt of Dred Scott’s errors seem to have originated in the Supreme Court of Missouri’s misrepresentation, in Scott v. Emerson, that Justice Story approved of Lord Stowell’s decision in The Slave, Grace. In The Slave, Grace, Stowell proposed a Hegelianism that would upend the Americans’ once free, always free precedent for a once slave, never free alternative along the lines of Le Louis’s equally illogical Hegelianism of the free trade in human flesh. Stowell’s alternative subversion of Somerset was implicitly embraced in an awful Mississippi decision, Leech v. Cooley, that characterized all free Black Americans, including Solomon Northup, as mere denizens rather than full citizens of free States and of the United States.
On the contrary, though Story received Stowell with politeness, he never approved of The Slave, Grace and actually opposed it and Le Louis in his opinions in La Jeune Eugenie and United States v. The Amistad. However, Justice Story clearly erred in Prigg v. Pennsylvania where he attempted to extend his idea of plenary power doctrine from his dissent in Houston v. Moore to absolve a slave catcher of his crimes in Pennsylvania. Story’s error solidified into the basis of Chinese Exclusion during the postbellum eugenics era, and Story’s Eleventh Amendment-based plenary power ideology remains with us today as the constitutional foundation of modern Immigration Law.3
President Trump openly defends plenary power doctrine by attacking pro bono immigration litigation that questions whether the Immigration Law unconstitutionally suspends habeas corpus. But Trump also claimed a unilateral power to enact immigration laws through presidential papers dating back to his first term as President that reporter Lesley Stahl properly rejected as clearly absurd when he tried to assert it in her presence.4 Trump’s attack on litigation by citing to Congress’s laws to defend him from litigation brought by immigrants is belied by his attack on Congress’s law in Trump v. Barbara as though his transgressions of the law do not waive his invocation of the law to destroy jurisdiction, which recently caused an unprecedented spike in immigrant habeas corpus litigation.
Judge Hayes acted within a similarly fraught period involving substantially the same constitutional principle immigrants are still suffering under. In Hayes’ opinion justifying his grant of Ms. Mason’s habeas corpus writ, he explicitly remarked upon a slippery slope that the Court would spiral down had he granted Ms. Mason’s lawyers’ motion to dismiss the case without notifying their clients. Hayes emphasized his independent power to extend relief to Ms. Mason despite her lawyers’ malpractice. In the end, Biddy Mason’s lawyers feared her masters ire or else they were corrupted by greed to subvert legal ethics against California law.
But, perhaps, they should have feared becoming the heel of Judge Hayes’ decision to grant Biddy Mason’s writ over their failure to argue the case. Today President Trump’s issuance of Executive papers to target litigation and litigators he doesn’t like asks the general question of whether American lawyers will surrender their clients’ interests to please the government. But the answer, should lawyers abandon their clients to please the President and to preserve their finances, was already made in Judge Hayes’ Los Angeles Courtroom where Hayes decided that granting such lawyers an easy exit from defending their clients’ interests in securing freedom from kidnapping and removal would be a travesty of justice.
The prescience of Hayes’ opinion to some of today’s most heated controversies is remarkable. In fact, Associate Justice of the California Supreme Court Goodwin Liu recently gave a keynote address at the 2026 commencement at UCLA School of Law that roundly addressed the structural prescience of Hayes’ decision to grant habeas corpus upon grounds of judicial independence without naming the case. Therein, Liu remarked upon the President’s attack on the practice of law in the United States by remembering John Adams’ reasons for defending the Red Coats according to his noble conviction that “‘counsel ought to be the very last thing an accused should want in a free country.’”
Liu drew lines from the founding idea that independent lawyering was a mark of free government to real lawyers who currently defend unpopular clients in court. Liu urged that “the independence of the legal profession, the independence of lawyers and judges, is vital to the fair and impartial administration of justice.” He concluded that judicial and lawyerly independence “is under stress today,” and issued a challenge to the rising J.D.’s of UCLA before him “you must stand strong and defend it.” Then he recited a quote from the late Associate Justice William O. Douglas’s speech A Challenge to the Bar given to the American Law Institute in 1953 as follows:
“History shows that governments bent on a crusade, or officials filled with ambitions have usually been inclined to take short-cuts. The cause being a noble one (for it always is), the people being filled with alarm (for they usually are), the government being motivated by worthy aims (as it always professes), the demand for quick and easy justice mounts. These short-cuts are not as flagrant perhaps as a lynching. But the ends they produce are cumulative; and if they continue unabated, they can silently rewrite even the fundamental law of the nation.”5
But, it appears, Justice Liu did not need to cast his gaze all the way to Washington, D.C. to find the sprouting of California’s older dedication to this principle in Los Angeles, when it was a fledgling metropolis. As wonderful as Justice Douglas’s defense of judge and lawyer independence was, he spoke largely in dissent during the McCarthy Era and today the state of the federal government appears to be even more uncertain. Therefore, it is auspicious that Justice Liu might also rest his defense upon Judge Hayes’ reported opinion in Mason v. Smith about the paramount importance of not only lawyerly and judicial independence, but also zealous advocacy.
It is true that the Reconstruction of the United States after the Civil War largely depended upon the federal government to unite even the former Confederate States as one nation dedicated to principles of equal liberty and equal justice. But where the States did justice and acted rightly, as California did from time to time during the Civil War and prior, there are moments of State-led defenses of uniting principles that ought to be celebrated — for example, the antebellum decision in United States v. Ritchie regarding the fate of land owned by Chief Sem-Yeto of the Suisun people, whose Christian name was Francisco Solano, and who was the namesake of Solano County, California. In fact, as Judge Hayes noted, there was at least one case from Louisiana that should be celebrated despite its existence among several travesties and atrocities that compose the heinous and unjust chattel slavery era.
As such, despite the massive errors of California, symbolized by its first Chief Justice Serranus Hastings who led genocidal expeditions against the Yuki people, there are precedents worth protecting here. America’s lack of resolution for betraying Reconstruction to certain failure, currently symbolized by President Trump’s repeated success, may confirm why federal calls like Justice Douglas’s call to principles of lawyerly independence are presently failing. But the States should not hesitate to face their own failings to see if there are bases for uniting principles in their own respective histories. Here, in California, Biddy Mason set forth such a foundation worth remembering in a case that mandates the zealous advocacy of lawyers for unpopular clients, in difficult cases.
As commemorated by the Biddy Mason Foundation in Los Angeles that maintains a museum in Ms. Mason’s honor and services Los Angeles foster children in her name, Black Californians have always shown us how to celebrate survivals like Biddy Mason’s. To find levity and even felicity in living on through trial and tribulation is not hypocrisy, but it is the throbbing pulse of the jazz and blues that made their debut, first, in the heart of the South. These divinely inspired sounds of survival have reached us in the West, and, in Biddy Mason’s case, they seem to have hardened into a firm foundation for the independent administration of justice so that we can celebrate the continued survival of freedom in California without fear or hesitation about what fate might befall the rest of the nation, even now, when the way is especially dark and uncertain.
Yours Cordially,
Joshua J. Schroeder, Esq.
Mason v. Smith (Cal. 1856), National Anti-Slavery Standard (New York) 1840-1870 (Apr. 5, 1856), https://teachinglegalhistory.unl.edu/s/oer/item/2025 (“Any citizen can understand how disastrous it might be to his rights and interests pending in the courts, if such a precedent in an attorney were approved and practised on. No attorney can desert his clients at his own pleasure, without good reason therefor, and fair notice to them.”). A copy of the original report of Judge Hayes’ opinion in the National Anti-Slavery Standard, Vol. 16, Iss. 46, 1856-04-05 is available on Internet Archive here.
Rankin v. Lydia, 9 Ky. 467, 470, 479 (Ky. 1820) (vindicating the once free, always free ideal by enforcing the freedom of a former slave in Kentucky according to the laws of Northern free states as “equally sacred here, whither she was brought against her will, as it would be, had it been her birth-right”), cited by Lunsford v. Coquillon, 2 Mart. (N.S.) 401, 409 (La. 1824).
Joshua J. Schroeder, We Will All Be Free or None Will Be: Why Federal Power is Not Plenary, but Limited and Supreme, 27 Tex. Hisp. J. L. Pol'y 1, 33 (2021) (explaining the origins of plenary power doctrine in Story’s Eleventh Amendment jurisprudence).
Joshua J. Schroeder, A Candle in the Labyrinth: A Guide for Immigration Attorneys to Assert Habeas Corpus after DHS v. Thuraissigiam, 49 Hastings Const. L.Q. 237, abstract (2022) (noting that Trump’s assertion of power to make a health, internet, and immigration law unilaterally in a Christopher Wallace interview); Donald Trump Chris Wallace Interview Transcript July 19[, 2020], rev (June 6, 2025), https://www.rev.com/transcripts/donald-trump-chris-wallace-interview-transcript-july-19 (“We're going to sign an immigration plan, a healthcare plan and various other plans. And nobody will have done what I'm doing in the next four weeks. The Supreme Court gave the President of the United States powers that nobody thought the president had, by approving, by doing what they did, their decision on DACA.”).
William O. Douglas, A Challenge to the Bar, 28 Notre Dame L. Rev. 497, 497-98 (1953).