Neal v. Farmer II: Slavery and the "Law of Kindness"

Justice Nisbet explained that, although the common law did not protect slaves, the lot of slaves was far better in Georgia than it had been in Africa. In “that dark land” there was “pure, unmitigated slavery.” So too was slavery at first unmitigated in Georgia “until legislation, prompted by christianity, softened its severities.” Justice Nisbet then sketched out his vision of slavery leavened with Christian charity:

“The curse of the Patriarch rests still upon the descendents of Ham. The negro and his master are but fulfilling a divine appointment. Christ came not to remove the curse; but recognizing the relation of master and servant, he prescribed the rules which govern, and the obligations which grow out of it, and thus ordained it an institution of christianity. It is the crowning glory of this age and of this land, that our legislation has responded to the requirements of the New Testament in great part, and if let alone, the time is not distant when we, the slaveholders, will come fully up to the measure of our obligations as such, under the christian dispensation.”

Justice Nisbet then briefly catalogued the benefits and protections that legislators, guided by Christianity, had been able to bring to slaves without impinging on the rights of the masters:

“The laws of Georgia, at this moment, recognize the negro as a man, whilst they hold him property – whilst they enforce obedience in the slave, they require justice and moderation in the master. They protect his life from homicide, his limbs from mutilation, and his body from cruel and unnecessary scourging. They yield to him the right to food and raiment, to kind attentions when sick, and to maintenance in old age; and public sentiment, in conformity with indispensable legal restraints, extends to the slave the benefits and blessings of our Holy Religion.”

In short, the people of Georgia had made the institution of slavery subject to “the law of kindness:”

“Conceding that there are violations occasionally on the part of the master, of the obligations of humanity, yet it may be asserted, with truth, that the relation of master and slave in Georgia, is an institution subject to the law of kindness to as great an extent as any institution springing out of the relation of employer and employed, any where existing among men.”

Neal v. Farmer I: Is It a Crime to Kill a Slave?

There was in slave states a well-developed law of slavery. The history books and legal articles sometimes describe particular holdings in brief sentences or parentheticals, but they give little “feel” for the reasoning. I therefore thought I would read and describe some of the cases. While I will certainly try to explain the issues and decisions, what I really want to do is try to find those passages, if they exist, that shed light on the underlying views and assumptions held about masters, slaves and the institution of slavery.

I thought that I would start with some Georgia cases, simply because I have already discussed one opinion of the Supreme Court of Georgia, in which Chief Justice Joseph Henry Lumpkin delivered a rousing paean to liberty.

Neal v. Farmer, 9 Ga. 555, 1851 WL 1474 (1851), was a civil suit by Nancy Farmer against William Neal. Mrs. Farmer owned “a negro slave,” who is not identified. She asserted that Mr. Neal had killed the slave and sought damages from him for the loss. Again, the circumstances of the killing are not described. A jury found Mr. Neal liable and awarded $825 in damages to Mrs. Farmer.

Mr. Neal appealed. Georgia law apparently provided that one could not sue a person for damages for death unless that person had first been criminally convicted of murder or manslaughter. Mr. Neal’s defense on appeal was that he had not been criminally convicted for the death of the slave; therefore, the civil judgment was improper and should be reversed.

Justice Eugenius Aristides Nisbet (pictured) delivered the opinion for the court. A more detailed biography of Justice Nisbet may be found here. Briefly, Justice Nisbet was a prominent Whig who sat on the Georgia Supreme Court from its creation in 1845 until 1853, when the legislature replaced him with a Democrat. He later attended the Secession Convention, introduced the resolution of disunion, sat on the committee that drafted the Ordinance of Secession, introduced the committee report to the full Convention, and proposed the “unanimity of signature” rule.

As Justice Nisbet saw it, the crucial issue was whether a white person could be criminally convicted for murder of a black slave. If the answer was in the affirmative, then the civil judgment against Mr. Neal should be reversed. If the answer was in the negative, then the civil judgment against Mr. Neal should be affirmed.

Justice Nisbet then undertook a lengthy historical analysis to determine whether it was possible to be guilty of a felony for killing a slave under the common law of England at the time when the colony of Georgia was founded. Justice Nisbet reasoned that, if the common law of England had authorized the crime of murder of a slave, that common law was transmitted to the colony. Extensive historical review showed that English common law had provided that one could be guilty of killing a “villein” – basically a serf – as late as the early 1600s.

Nonetheless, Justice Nisbet ultimately rejected the proposition that English law in the mid-1700s, when the colony of Georgia was founded, recognized that it was a felony to kill a slave. He did so by drawing a distinction between “villenage and negro slavery. Villenage was not a pure slavery” and was different from “[t]he unconditional slavery of the African race, as it exists in Georgia.” Villeins “are broadly and plainly distinguishable from the slave of this country, in this, that they [villeins] had both a civil and political capacity, neither of which appertains to him [the slave].”

The conclusion – that the common law did not judge the killing of a slave to be a felony – did not strike Justice Nisbet as anomalous. To the contrary, he suggested that the result could not be otherwise. If the common law protected the slave, it would necessarily undermine the rights of the master and destroy the very concept of slavery. If slaves had any rights at all, they were only those rights that would not infringe the rights of the master:

“It is theoretically every where, and in Georgia experimentally true, that two races of men living together, one in the character of masters and the other in the character of slaves, cannot be governed by the same laws. Whatever rights humanity, or religion, or policy, may concede to the slave, they must, in the nature of the relation, be often different from those of the master. . . . The civil rights of the master do not appertain to the slave. Of these, he can have none whatever. The rights personal, if they might be so designated, of the slave, are, some of them essentially different from those of the master, and cannot, therefore, be the subject of a common system of laws. They must be defined by positive enactments, which, whilst they protect the slave, guard the rights of the master. If the Common Law . . . protects the life of the slave, why not his liberty? and if it protects his liberty, then it breaks down, at once, the status of the slave.”

In the next post, we will let Justice Nisbet address what protections if any, the slave may have if the law gives him none.

Birney v. State I: Birney and Matilda

The literature suggests that Salmon P. Chase first became known as an antislavery advocate through his association with future Liberty Party presidential candidate James G. Birney (pictured) in the late 1830s. I therefore thought I’d take a look at the case in which Chase successfully represented Birney against a charge that he had unlawfully harbored a fugitive slave, Birney v. State, 8 Ohio 230, 1837 WL 40 (Ohio 1837). In this post, I’ll set the stage.

Birney, a prominent antislavery advocate, moved from Kentucky to Cincinnati, Ohio in 1835 because he had been unable to locate a printer in the former state. In January 1836, he began publishing an antislavery journal, The Philanthropist. His activities generated a lot of anger in Cincinnati as well: mobs there repeatedly destroyed his press.

In 1837, Birney was indicted in Hamilton County, Ohio for alleged violation of an 1804 state statute that made it a crime to harbor fugitive slaves:

“[I]f any person shall harbor or secrete any black or mulatto person, the property of another, the person so offending shall, on conviction thereof, be fined any sum not less than ten nor more than fifty dollars.”

The count of the indictment on which Birney was convicted following trial stated:

“That James G. Birney, on March 1, 1837, and for a long time, previous thereto, in the county aforesaid, did unlawfully harbor and secrete a certain mulatto girl by the name of Matilda, the said Matilda then being a slave and the property of one Larkin Lawrence, contrary to the form of the statute.”

For reasons I will discuss in another post, it is worth noting the circumstances under which Matilda apparently escaped. Larkin brought Matilda, “under his own charge, in a steamboat, to the Cincinnati landing, where she remained until she left it for the service of” Birney.

Ableman v. Booth XXI: Justice Crawford on Jury Trial

As I previously noted, Justice Crawford was also troubled by the fact that the Fugitive Slave Act provided that alleged fugitive slaves could be delivered to their alleged masters without a trial by jury. That right was “highly and justly esteemed” and “extends to all persons with the state, regardless of color, and to the fugitive from labor or slavery as to the freeman.” The question remained, however, whether the federal Constitution permitted the summary procedure contemplated by the 1850 Act.

Justice Crawford reluctantly concluded that the Constitution did authorize the summary procedure. He noted that the Fugitive Slave Clause, like the Extradition Clause which immediately preceded it in Article IV, Section 2, placed a premium on efficiency rather than fairness. He admitted that extradition was different, in that the extradited defendant was entitled to a jury trial in the state to which he was returned. However, he suggested that, at least in theory, a returned alleged slave also had legal remedies available in the state to which he was returned:

“It is true, that in the case of a fugitive from justice, he is given into custody of the officers of justice, with the beneficent presumption of the law in favor of his innocence, until he shall have been duly convicted; while in the case of the fugitive from labor, he is placed under the control of his claimant, to be carried back to the state from which he is charged to have fled, with no presumption in favor of his freedom; but this is, I think, more an argument against the policy and justice and humanity of the law, than against its constitutionality. A case might arise where, by false swearing and conspiracy, a freeman, by the machinery of this law, might be snatched from his liberty and reduced to the condition of slavery, until, by a suitable proceeding, he asserted and obtained his freedom; but so, also, by similar means, an innocent man may be carried away charge with crime, and placed under the necessity of vindicating his innocence in a distant state.”

Ableman v. Booth XX: Justice Crawford on U.S. Commissioners

To recap, the dissenting Wisconsin Supreme Court Justice, Associate Justice Samuel Crawford, concluded that the Fugitive Slave Act of 1850 was constitutional, despite doubts due to (a) the use of United States Commissioners, and (b) the failure to provide for trial by jury.

His concern about the use of Commissioners arose from the fact that the Act created and authorized them to undertake functions that “look[] very like the exercise of judicial functions.” They were not, however, what we would now call “Article III judges,” that is federal judges appointed for life subject to good behavior pursuant to Article III, Section 1 of the Constitution.

Justice Crawford’s discussion as to why he nonetheless believed that the use of Commissioners was constitutional is downright ingenious. First, he noted that federal territorial judges were not Article III judges either; even so, their ability to perform judicial functions was not questioned:

“But the judges of several of the territories of the United States, who hold their appointments from the president, are not appointed to hold during good behavior; and, if I am not mistaken, there is no instance of their having been held liable to impeachment; at least that they are not so liable, has been advanced by an attorney general of the United States.”

Sherman Booth apparently argued that the appointment of territorial judges was different, because Congress created them pursuant to power granted by the Territories Clause (Article IV, Section 3, Clause 2), which expressly granted to Congress the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”

Justice Crawford was unpersuaded. If the Territories Clause gave Congress the power to create non-Article III judges, then the Fugitive Slave Clause arguably granted Congress the same power:

“[I]f the power to legislate upon the subject of fugitives from labor be vested in congress [as the Supreme Court had held in Prigg], it would seem that the performance of judicial acts might be vested in orther than judges or courts, under the constitutional provision (article three, section one,) in such a case, as in the case of newly organized territories.”

Justice Crawford’s second argument was equally clever. “[I]t has repeatedly been held” that Congress could authorize “state courts or magistrates . . . to perform acts of a judicial character arising out of the acts of Congress.” But state courts and magistrates were not Article III judges either:

“Now if judicial power can be conferred by congress upon others than courts or judicial officers known to the constitution, it seems to me that it can make little difference whether the power be vested in a state court or officer, or in a commissioner or officer of the United States who is not a judicial officer. In either case, the power is vested in a tribunal or officer, not a court or judge, contemplated by the clause of the constitution referred to.”

Ableman v. Booth XIX: Justice Crawford on Federal Supremacy

After explaining what his views of federal and state authority concerning enforcement of the Fugitive Slave Clause would be "[i]f this were a new question," Justice Crawford then conceded that he was constrained

"because the question has been authoritatively decided by the supreme court of the United States, the last and final constitutional exponent. Upon this, as upon all other questions arising out of the constitution of the United States, or the laws of congress, I am bound to yield obedience to the decisions of that tribunal, for upon such questions we are subordinate."

Justice Crawford was thus the only member of the Supreme Court of Wisconsin who explicitly admitted that the United States Supreme Court's decisions on federal constitutional matters were binding on state courts. Chief Justice Whiton did not expressly admit as much, but Justice Crawford correctly (in my view) took the position that the Chief Justice had tacitly conceded the issue:

"From these decisions [Prigg and others], I am led to view the subject as definitely settled, and the maxim stare decisis, as entirely applicable. I understand the chief justice to feel himself concluded by these decisions, so far as they declare the act of 1793 to have been the exercise of a constitutional power by congress to legislate, but that because they do not settle the question, whether the fugitive slave is entitled to a trial by jury, of the state where he is seized, and, because the act of 1850 confers certain powers on commissioners appointed by the federal courts, which are claimed to be judicial, the constitutionality whereof has not been determined by the supreme court of the United States, he is at liberty to inquire upon these points, whether the act of 1850 is obnoxious to the consitution."

As to the open issues identified by the Chief Justice, Associate Justice Crawford confessed that the arguments had "raised doubts in my mind," but in the end they "failed to produce that conviction which should justify a court, or judge, to pronounce a legal enactment void, because unconsitutional, and I am therefore unable to concur in the opinion that this law is unconsitutional."

Causation and the Civil War

When it comes to the Civil War, everyone loves to think and talk about causation. Was slavery the cause of the Civil War? Why did the Confederacy lose the War (or why did the Union win it, which may be a slightly different question)? Even questions such as “Was Joe Johnston a good general?” can be thought of as causation-related (“Was Joe Johnston’s poor generalship, rather than Sherman’s superior numbers and resources, or other factors, the cause of the loss of Atlanta?”).

For all those who like to talk about causation, I highly recommend Lawrence Solum’s recent post over at the Legal Theory Blog entitled “Legal Theory Lexicon: Causation.” Although, as the title implies, it includes discussion of legal causation, it provides an excellent primer of general causation concepts and issues such as necessary (“but-for”) and sufficient causes, overdetermination and others.

It also highlights a point that I think many people often overlook: most everyday discussions of causation are really discussions about necessary and sufficient causation; and “[b]oth necessary and sufficient causation are counterfactual concepts.” “Every statement regarding a necessary or sufficient cause can be interpreted as making a counterfactual (‘what if’) claim.”

I think the single biggest difficulty that people encounter when discussing historical causation is the assumption that, if you search hard enough, it will be possible to identify “the cause” of an event, when in fact there are probably many causes. But running a close second, I suspect, is the counterfactual nature of causation thinking. If I believe (as I do) that slavery was a necessary (but-for) cause of secession, I am really saying that secession would not have occurred if slavery had not existed. But putting aside that it’s technically impossible to test that hypothesis (since it’s counterfactual and never happened), it’s virtually impossible for me even to imagine the antebellum south without slavery. It’s hard to conduct a thought experiment that you can’t think of.

A New Gordon Wood Book?

In a recent post at Civil War Bookshelf discussing an article about the Oxford University Press American history series, Dimitri Rotov missed the most important point: Gordon Wood may be close to finishing another book!

"Writing long, comprehensive, narrative histories carries little prestige within the academy these days, and this too seems to have had something to do with the delays. 'The idea that you can sum up the scholarship of a previous generation in one volume just doesn't hold anymore,' says Gordon Wood, a Brown historian who doesn't quite share that view. Wood has been working for a decade, off and on, on a book for the series, on the period 1789 to 1815. He says the end is in sight.

"It may finally be. Susan Ferber, the Oxford editor, says the project has picked up some fresh momentum recently. She has three manuscripts on her desk [including] chapters from Wood . . .."

This may be old news to members of the academy tied in to the scholarly grapevine, but not to me.

Narrative vs. Analytical History

The following quote comes from Michael J.C. Taylor's H-Net review of Mark A. Graber's book, Dred Scott and the Problem of Constitutional Evil (which I haven't read yet):

"What this author should consider--as should all historians whether of a scholarly or popular bent--is the ultimate value of history if but a very few ever read it. The whole point of writing of the past is to convey its importance and relevance to an audience that will digest the lessons it has to offer. If the work is to be savored by but a few scholars, the whole purpose of writing history is futile--it is akin to preaching to the faithful. An idea expressed in but a few eloquent words can prove timeless, while the most intelligent effusion of expression will be forgotten by the time it is uttered."

Although the reviewer's immediate point seems to be a narrow one (he is addressing Professor Graber's use of a writing style allegedly so opaque as to discourage all but the most intrepid specialist), the quote also raises a broader issue somewhat akin to the old question about trees falling in uninhabited forests. In that broader context, I'm not at all sure I agree with the proposition. Is "[t]he whole point of writing of the past" really "to convey its importance and relevance"? Or is it, simply, to get the facts and inferences right, popular or not?

Perhaps the answer lies somewhere in the middle, in the sense that there should be room for both species of historical writing, both more broadly read narrative histories of the sort written by Doris Kearns Goodwin or James McPherson, as well as more detailed analytical monographs destined to be read only by scholars and specialists.

Popular histories will not always absorb the discoveries of specialists, but I do assume that the most significant changes will eventually come to be reflected in more general works. I've read several "popular" biographies of George Washington recently, and both went out of their way to point out a number of warts to go with the virtues. And did you know that he didn't chop down that cherry tree after all?

"This Holocaust Will Be Different"

Rather than moaning about how the evil "Bushitler" is destroying the world, you would be better off contemplating what real evil is and the probable consequences of failing to stand up to it by reading Israeli historian Benny Morris's essay, "This Holocaust Will Be Different."

I was particularly struck by this paragraph:

"This dilemma had long ago been accurately defined by a wise general: Israel's nuclear armory is unusable. It can only be used too early or too late. There will never be a 'right' time. Use it 'too early,' meaning before Iran acquires similar weapons, and Israel will be cast in the role of international pariah, a target of universal Muslim assault, without a friend in the world; 'too late' means after the Iranians have struck. What purpose would that serve?"

Ableman v. Booth XVIII: Justice Crawford on Federal Power

Justice Crawford then turned to "the question of greatest moment," upon which "a decision or opinion . . . is most desired in this case," namely that relating to "the constitutional power of congress to enact" the Fugitive Slave Law of 1850.

After briefly reciting the arguments of the parties, Justice Crawford summarized his conclusion: "I am satisfied that congress has the constitutional power to legislate upon the subject of fugitives from service or labor, in order to give effect to" the Fugitive Slave Clause.

In elaborating upon his conclusion, Justice Crawford distinguished between how he would rule on the issue "[i]f this were a new question," i.e., not previously discussed and decided by other courts, and how he felt compelled to rule given those earlier decisions. The discussion is worth reviewing in some detail.

Justice Crawford stated that, in the absence of other decisions, he would have likely held that both federal and state governments had concurrent power to enforce the Fugitive Slave Clause, with the proviso that states could not enact legislation that was inconsistent with federal legislation:

"If this were a new question, and I did not feel the control of former adjudications by tribunals composed of men of the most eminent endowments, I would incline to the belief that the power to legislate upon this subject, while it belonged to congress in virtue of the constitution, might be properly exercised by the several states. In other words, that the power is concurrent, and so long as the state legislation is not repugnant to or inconsistent with the provisions made by congress, it is permissible. This is, I think, a necessary conclusion from the language of the constitution itself, where it declares that the fugitive 'shall be delivered up on the claim of the party to whom such service or labor may be due.' The injunction thus imposed upon the states is no less obligatory upon them than is any other provision contained in their respective constitutions . . .."

Ableman v. Booth XVII: Justice Crawford on Jurisdiction

Justice Crawford parted company with his colleagues on the jurisdiction question. Although the court had the authority to inquire into the circumstances of Booth's detention, once it determined that Booth was in federal custody the proper course was to refer Booth to the federal court:

"[W]hen the inquiry into the process is carried thus far, and it is discovered that it is a valid process, of the issuing of which the federal court or officer had jurisdiction, and the subject matter, or offense named therein, is within the control or jurisdiction of the court or officer issuing it, then, I believe, a just and proper regard for the laws of the general government, and for the due administration of them in their own courts, demands that the state court or officer should decline to proceed any farther, and refer the applicant to the federal court for the relief which he seeks."

Ableman v. Booth XVI: Justice Samuel Crawford

The dissenter on the Wisconsin Supreme Court was Associate Justice Samuel Crawford.

Justice Crawford's history is quite different from that of Justices Whiton and Smith, both of whom were native New Englanders who moved to Wisconsin after passing the bar. Justice Crawford was a foreigner, born in Ireland in 1820. He emigrated to the United States in 1840, moving from Orange County, New York to Galena, Illinois, and ultimately to Wisconsin. When the Wisconsin Supreme Court was created in 1853, he was elected as an Associate Justice and assigned the "short" term, which expired in 1855. According to his Wisconsin Court System biography, his dissent in Ableman v. Booth "is believed to have cost him re-election in 1855." He died in 1860. Another brief biography appears here.

Because of his Irish and (presumably) Catholic background, one suspects that Justice Crawford was a Democrat rather than a Whig. As we shall see, whatever his political inclinations, Justice Crawford does not seem to have been a rabid partisan. He appears to have approached the issues in our case with an open mind and reached his decision on the merits as he saw them.

Ableman v. Booth XV: Whiton on Juries and Commissioners

The United States' principal argument in support of the constitutionality of the Fugitive Slave Act of 1850 was that the United States Supreme Court had already held, in Prigg v. Pennsylvania, that the Fugitive Slave Act of 1793 was constitutional. Chief Judge Whiton did not expressly concede that the Supreme Court of Wisconsin was bound by Prigg. By the same token, he did not expressly deny that the Supreme Court's ruling was binding. Rather, he sought to distinguish Prigg and the 1793 Act from the 1850 Act. He found two distinguishing features, which allowed him to conclude that 1850 Act was unconstitutional without squarely disavowing the authority of the Supreme Court.

The distinguishing features are interrelated. First, he concluded that in Prigg "the question of a trial by jury to determine the facts of the case, was not raised by the record and was not discussed by the [Supreme] court in giving its opinion." Second, because the 1793 Act did not create or authorize the use of United States Commissioners, Prigg obviously did not pass on the constitutionality of that feature of the 1850 Act.

These related aspects of the 1850 Act rendered the Act void, according to Justice Whiton:

"We are of opinion that so much of the act of congress in question, as refers to the commissions for decision, the questions of fact which are to be established by evidence before the alleged fugitive can be delivered up to the claimant, is repugnant to the constitution of the United States, and therefore void for two reasons: First, because it attempts to confer upon those officers judicial powers; and second, because it is a denial of the right of the alleged fugitive to have those questions tried and decided by a jury."

But Justice Whiton's opinion is probably more interesting for what it did not say. You will recall that Justice Smith had held the 1850 Act unconstitutional on the very broad ground that the Fugitive Slave Clause, Article IV, Section II did not grant Congress the power to pass enforcing legislation -- an argument that the United States Supreme Court had squarely discussed and rejected in Prigg. Justice Whiton specifically noted that Mr. Booth had raised this argument, but he then sidestepped it by deciding the constitutional issue on the narrower grounds noted above.

Another American Accent Quiz

This quiz is remarkably accurate as well.

What American accent do you have? Your Result: The Northeast Judging by how you talk you are probably from north Jersey, New York City, Connecticut or Rhode Island. Chances are, if you are from New York City (and not those other places) people would probably be able to tell if they actually heard you speak.
Philadelphia
The Inland North
The Midland
The South
Boston
The West
North Central
What American accent do you have? Quiz Created on GoToQuiz

Ableman v. Booth XIV: Justice Whiton's Opinion

You will recall that Associate Justice Abram D. Smith, by himself, heard and granted Sherman Booth's habeas petition because the full court was not then in session. Thereafter the federal government appealed to the full Supreme Court of Wisconsin, which then consisted of three judges: Justice Smith, Chief Justice Whiton (introduced in the last entry), and associate Justice Samuel Crawford (about whom more in a later post).

The full court affirmed Justice Smith's decision to order Mr. Booth's release by a vote of 2 to 1, with Justice Crawford dissenting. Each Justice wrote a separate opinion. We turn now to that of Chief Justice Whiton.

Chief Justice Whiton's reasoning was similar to that of Justice Smith in a number of respects; it differed in one very interesting way. First, let's examine the issues on which they agreed.

First, his analysis of the jurisdiction issue is largely similar. He too focused on the fact that the warrant under which Mr. Booth was held had been issued by a Commissioner appointed pursuant to the Fugitive Slave Act of 1850. Chief Justice Whiton concluded, in effect, that a Commissioner was not an Article III judge. Therefore, Mr. Booth was not in the custody of the federal judiciary, and Wisconsin state courts could properly exercise jurisdiction over the propriety of Mr. Booth's detention.

Turning to the merits, the Chief Justice also came to the conclusion that the warrant was defective for technical reasons. For example, it did not recite "for what purpose Joshua Glover . . . was in the custody of the deputy of the marshall." This argument is no more convincing to me now than it was when Justice Smith espoused it.

The opinion becomes most interesting when Justice Whiton turns to the constitutionality of the Fugitive Slave Act of 1850. He, too, concluded that the Act was unconstitutional, but on narrower grounds than did Justice Smith. One gets the clear sense that Justice Whiton was less "radical" than Justice Smith. One also gets the clear sense that he was a more careful lawyer, in that he worked hard to reconcile his conclusion with that of Prigg v. Pennsylvania, in which the Supreme Court had upheld the constitutionality of the Fugitive Slave Act of 1793.

We shall look at the details of Chief Justice Whiton's efforts in this regard in the next post.

Ableman v. Booth XIII: Edward Vernon Whiton

It's time to return to Sherman Booth. To get you back into the swing, let me introduce the next actor we'll encounter: Edward Vernon Whiton, the Chief Justice of the Supreme Court of Wisconsin.

Chief Justice Whiton was born in Massachusetts in 1805. He earned his law degree there and moved to Wisconsin in 1837. A Whig and later a Republican, Whiton served in the territorial legislature and at the state constitutional convention. When Wisconsin achieved statehood in 1848, he was elected a state circuit court judge and served ex officio as a justice of the State Supreme Court. When the Supreme Court was reorganized as a separate body in 1853, he became its first Chief Justice. He served in that position until his death in 1859. Brief biographies are available here and here

Time permitting, tomorrow I will discuss Chief Justice Whiton's opinion.

Al Gore Says "Ouch!"

He, like Jimmy Carter, doesn't want to debate. On the other hand, a commenter makes the point that he is just the front man/talking head for the documentary, so maybe he is not the one to do the debating.

Putting that aside, the post to which I am referring, by Jonathan Adler at the Volokh Conspiracy, is one of the most interesting and informative items I have read about the global warming issue. I haven't followed them yet, but it appears that the comments have a number of links worth pursuing.

The Mythology of Sherman's March

Kevin Levin at Civil War Memory points out a fine article by Mark Grimsely entitled "'Thieves, Murderers, Trespassers': The Mythology of Sherman's March." A principal point of the article is that the stories of widespread rape and murder during the march are simply not true.

Another historian who has made a similar point is Victor Davis Hanson, in an article entitled "Sherman's War." Professor Hansen observes:

"As for the charge that Sherman's brand of war was amoral, if we forget for a moment what constitutes 'morality' in war and examine acts of violence per se against Southern civilians, we learn that there were few, if any, gratuitous murders on the march. There seem also to have been less than half a dozen rapes, a fact acknowledged by both sides. Any killing outside of battle was strictly military execution in response to the shooting of Northern prisoners. The real anomaly seems to be that Sherman brought more than sixty thousand young men through one of the richest areas of the enemy South without unchecked killing or mayhem. After the war a Confederate officer remarked of the march through Georgia: 'The Federal army generally behaved very well in this State. I don't think there was ever an army in the world that would have behaved better, on a similar expedition, in an enemy country. Our army certainly wouldn't.'"

Justice Lumpkin's Bill of Rights VI

In my first post about Campbell v. Georgia, I briefly reviewed the facts but said that they contained a great irony. Now it's time to pull back the curtain.

Mays was beaten and stabbed late Saturday night or early Sunday morning. He died late Monday. On Monday, while he knew he was dying, he told people who were attending him that it was Campbell who had assaulted him. The people who heard Mays' statements testified to them in court. It was the admission of these hearsay statements -- the statements by witnesses as to what Mays had supposedly told them -- that Campbell contended violated the Confrontation Clause.

The irony lies in the fact that Justice Lumpkin ultimately concluded that the statements were hearsay -- that is, the witnesses had testified about unsworn, out-of-court statements allegedly made by Mays, introduced for the purpose of demonstrating the truth of those unsworn, out-of-court statements (i.e., that it was Campbell who had assaulted and thus ultimately caused the death of Mays). Nonetheless, the court concluded, the statements were admissible because they fell within a long-recognized exception to the hearsay rule, known as the "dying declarations" exception. (The rationale of the exception is that a person who is about to die, and who knows that he is about to die, is likely to be telling the truth.) The court therefore affirmed Campbell's conviction of voluntary manslaughter.

In short, all of Justice Lumpkin's ringing oratory was utterly unnecessary dictum. The court could (and should) have avoided the constitutional issue altogether. It could simply have said, "There is no need to decide, or even discuss, whether the Confrontation Clause, or some similar principle of fundamental law, applies to this case, because the admission of the statements does not and would not violate the Clause or principle."

The image is of the Joseph Henry Lumpkin house in Athens, Georgia, which he owned from 1843 until his death.

The Fate of Their Country

At H-Net, a historian I have not heard of, Graham H. Peck, has written an excellent review of Michael Holt's book The Fate of Their Country. Professor Peck's conclusion is exactly correct: "[T]he contemporary rival schools of Civil War causation might not be as far apart as is sometimes thought. Just as Holt acknowledges, to a degree, the powerful interplay between politicians and public attitudes toward slavery, historians who emphasize the slavery issue must explain how contingent factors, including political ones, influenced the coming of the war."

Both the review and the book are highly recommended.

Justice Lumpkin's Bill of Rights V

As he builds to a crescendo, Justice Lumpkin's magnificent oratory swells with grandeur and unintentional irony. Print out this passage and read it aloud:

"[T]he Legislature . . . cannot commit political suicide, or rather parricide, by violating or destroying the great first principles of American civil liberty, as set forth and declared in the ten amendments of the Constitution -- a legal decalogue for every civilized society, in all time to come.

"No such attempt would be considered a rightful exercise of legislative authority. To maintain that our Federal or State Legislature possess such a power, is, in our opinion, a political heresy, altogether inadmissible. The British Parliament dare not, at this day, with all its transcendental power, commit such an outrage. For such monstrosity in legislation we must go to semi-imperial France, or semi-barbarous Russia. Any attempt in this country, at this day, to establish religion; to curtail the freedom of speech or of the press; to deprive a party of the privilege of appearing personally, or by counsel; to inflict cruel or unusual punishments; to immure a prisoner without trial, in a dungeon for life; to subject a citizen to a star-chamber proceeding instead of a public trial; would shock not only the common sense, but sense of justice of the teeming millions in this free and happy country! Shame! shame! upon such legislation, would be indignantly uttered by ten thousand tongues!"

The picture above is of Thomas R.R. Cobb, Justice Lumpkin's son-in-law.

Justice Lumpkin's Bill of Rights IV

We have seen Justice Lumpkin espousing a truly remarkable and radical doctrine: even if State laws do not run afoul of the State constitution, judges can and should strike down State laws that violate the fundamental principle that republican government must protect life, liberty and property.

But does this not lead to judicial activism (as we would say today) run amok? Perhaps the most interesting part of this fascinating opinion is how Justice Lumpkin wrestles with, and resolves, this issue. He finds in the Bill of Rights a limiting principle that constrains judicial discretion. Judges should not strike down all legislative acts that they perceive may be violations of life, liberty and property. They should limit themselves to striking down only those enactments that violate the most important principles -- those declared by the people in the Bill of Rights.

The rhetoric and language are so wonderful that, as before, I will let Justice Lumpkin speak for himself. First, he identifies the problem of excessive judicial discretion:

"But we do not intend to put our opinion in this case upon this foundation [i.e., that courts may nullify all laws that violate life, liberty or property], however solid it may be. For while we have denied the omnipotence of the Legislature, the tendency of our administration, nevertheless has been, to side with those who refused to declare and Act of the Legislature void, because it conflicts with the Court's views of reason, expediency or justice; and who recommend an appeal to the ballot-box as the only remedy for unwise legislation. And one of the strongest arguments against Judicial interposition in such cases is, that apart from a written Constitution, our ideas of natural justice are vague and uncertain, regulated by no fixed standard; the ablest and best men differing widely upon this, as well as all other subjects."

Justice Lumpkin then proposes the solution: courts should limit their discretion by nullifying only those laws that violate the principles embodied in the Bill of Rights, declared by the People to constitute the bedrock principles of republican government:

"But as to questions arising under these amendments [the Bill of Rights] there is nothing indefinite. The people of the several States, by adopting these amendments, have defined accurately and recorded permanently their opinion, as to the great principles which they embrace . . .. [V]iewing these amendments as we do, as intended to establish justice -- to secure the blessings of liberty -- to protect person and property from violence; and that these were the very purposes for which government was established, we hold that they constitute a limit to all legislative power, Federal or States, beyond which it cannot go; that these vital truths lie at the foundation of our free, republican institutions; that without this security for personal liberty and private property, our social compact could not exist. No Court should ever presume that it was the design of the people to entrust their representatives with the power to take away or impair these securities. Such an assumption would be against all reason. The very genius, nature and spirit of our institutions amount to a prohibition of such acts of legislation, and will overrule and forbid them."

The picture above is of Hiram Warner, the third member of the Supreme Court of Georgia in 1852, who also concurred in the decision. Here is a brief biography of Justice Warner, who later became the second Chief Justice of the court, after Justice Lumpkin.

Review Your Bank Statements!

The Baseball Crank has a post about a baseball player whose funds were embezzled from his bank checking account. When the player opened the account, he signed forms by which he agreed to the bank's rules and regulations concerning the account. He also instructed the bank to hold his monthly account statements, i.e., not to send them to his home or to a third party (such as an accountant).

The player ordered checks, which were sent his residence. There, an "employee" of the player -- not the bank -- obtained possession of them and began forging checks, depleting the account (and other accounts tied to the checking account).

When the player ultimately discovered the embezzlement and loss, he sued the bank. The bank asserted as a defense (among others) that the player's claim was barred because he had failed to report the loss within thirty days after the bank made the first bank statement reflecting the fraud available to him, as required by the bank's rules and regulations. The court upheld this defense and dismissed the player's suit. It was irrelevant that the player had not actually received the monthly statements, because it was he who had instructed the bank not to send them.

Commenters at the Crank's site are outraged, although much of the outrage may be attributable to the fact that they think that the forger was a bank employee. He was not. The forger was the player's employee. That said, however, people should know that this scenario happens over and over again, and the decision is utterly routine. Virtually all banks have similar rules requiring checking account customers to report irregularities within sixty or thirty days (sometimes less), and courts regularly enforce these rules.

Small businesses are most often the victims of such frauds, usually by their bookkeepers, but the rules apply to individual checking account customers as well. Even where the facts are sympathetic to the account holder (the invalid senior whose life savings are stolen by a home healthcare attendant, for example), the account holder almost always loses.

The moral of the story: review your monthly bank account statements!

Finally, it's worth noting that the player did not sue the bad guy, his former employee who forged the checks. Why? I'd guess it is because the forger had fled or had no money. In these situations, the bad guy (or gal -- and there are many) is often a gambler, drug user, or other species of extreme spendthrift. The stolen funds are almost always spent and unrecoverable.

Justice Lumpkin's Bill of Rights III

Justice Lumpkin was a smart man and good lawyer. He acknowledged that the Supreme Court had ruled, in Barron v. Baltimore, that the Bill of Rights did not apply to the States. He did not so much disagree as conclude that that was irrelevant. He cited and quoted from a number of opinions of State courts that had held that States were bound to observe certain fundamental principles. His favorite quote was from a Maryland court, for he emphasized the entire passage:

"'Independent of that instrument [the federal Constitution], and of any express restriction in the Constitution of the State, there is a fundamental principle of right and justice, inherent in the nature and spirit of the social compact (in this country at least,) the character and genius of our governments, the causes from which they sprang, and the purposes for which they were established, that rises above the restraints and sets bounds to the power of legislation, which the Legislature cannot pass, without exceeding its lawful authority. It is that principle which protects the life, liberty and property of the citizen, from violation, in the unjust exercise of legislative power.'"

The picture above is of Eugenius Aristides Nisbet, one of Justice Lumpkin's colleagues on the Georgia Supreme Court from its establishment in 1845 until 1853, who concurred in the decision.

Justice Lumpkin's Bill of Rights II

Justice Lumpkin went on to explain why he believed that the Bill of Rights -- or at least the principles set forth in the Bill -- applied to the States:

"It was not because it was supposed that legislation over the subjects here enumerated might be better and more safely entrusted to the State governments, that it was prohibited to Congress. It was to declare to the world the fixed and unalterable determination of our people, that these invaluable rights which had been established at so great a cost of blood and treasure, should never be disturbed by any government . . ..

. . . What confidence will be reposed in a State government, whose legislation should be characterized by acts which disgrace the most tyrannical epoch of the British monarchy? A free people would instantly and indignantly reject it and its authors."

Justice Lumpkin then returned to the theme of "State rights:"

"While this Court yields to none in its devotion to State rights, and be the first to resist all attempts at Federal usurpation, it feels itself called on by the blood of the many martyrs, who nobly died to maintain the great principles of civil liberty contained in these amendments -- our American Magna Charta -- to stand by, support and defend the rights which they guarantee, against all encroachments, whether proceeding from the National or State governments."

Joseph Henry Lumpkin and The Bill of Rights

Joseph Henry Lumpkin was the first Chief Justice of the Supreme Court of Georgia, serving on that court from its establishment in 1845 until his death in 1867. You can find brief biographies of him here and here.

So far as I can tell, the web contains no discussion of Chief Justice Lumpkin's most remarkable opinion, Campbell v. State, 11 Ga. 353, 1852 WL 1345 (1852). The purpose of this post (and others to follow) is to remedy that omission.

I will return to the facts later, for they contain a supreme irony in this extraordinary opinion. For present, it is sufficient to state that the defendant, James Campbell, was convicted in January 1852 in Superior Court, Richmond, Georgia of the manslaughter of Carl Mays. Saturday night, January 11, 1851, Campbell and Mays were drinking. Late that night, they apparently fell into a dispute. Campbell hit Mays with a stick or branch, and then stabbed him repeatedly with a sharp instrument. Mays died Monday afternoon.

Campbell appealed to the Supreme Court of Georgia. On appeal, he asserted that his conviction should be overturned because it was based on out-of-court statements by an absent witness, in violation of the Confrontation Clause of the Sixth Amendment to the federal Constitution, which provided (and still provides) in relevant part that, "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." The Georgia Constitution of 1798 did not contain a similar provision. One of the questions presented to the court was whether the Confrontation Clause applied to state court proceedings.

Almost twenty years earlier, in Barron v. Baltimore (1833), the United States Supreme Court had held that the Fifth Amendment and, by implication, the other provisions of the Bill of Rights, did not apply to the states. As we shall see, Chief Justice Lumpkin and the Supreme Court of Georgia did not agree.

Chief Justice Lumpkin delivered the opinion of the court. He enunciated what has been termed a "declaratory" view of the Bill of Rights. That is, he expressed the view that, whether or not the Bill of Rights itself applied to the states, the Bill declared fundamental principles that were binding on any republican government, including the government of the State of Georgia:

"The principles embodied in these amendments. for better securing the lives, liberties, and property of the people, were declared to be the 'birthright' of our ancestors, several centuries previous to the establishment of our government. It is not likely, therefore, that any Court could be found in America of sufficient hardihood to deprive our citizens of these invaluable safeguards."

It is possible that States have the reserved right to ignore these fundamental safeguards? May a State pass a law abridging freedom of speech or of the press? May it establish a state religion? Justice Lumpkin answered these rhetorical questions with words that are both majestic and supremely ironic given their place and time (Georgia 1852):

"Such logic, I must confess, fails to commend itself to my judgment. for let it constantly be borne in mind, that notwithstanding we may have different governments, a nation within a nation, imperium in imperio, we have but one people; and that the same people which, divided into separate communities, constitute the respective State governments, comprise in the aggregate, the United States Government; and that it is in vain to shield them from a blow aimed by the Federal arm, if they are liable to be prostrated by one dealt with equal fatality by their own."

Justice Lumpkin contended that no government "has the right to do wrong." To those who contended otherwise, he cried out:

"From such State rights, good Lord deliver us! I utterly repudiate them from the creed of my political faith!"

In the next post, I will let Chief Justice Lumpkin do most of the talking.

Americanization of the Common Law

Last week, J.L. Bell at Boston1775 said that he had not read William E. Nelson's Americanization of the Common Law: The Impact of Change on Massachusetts Society, 1760-1830 because he expected that, since he was not a lawyer, he would not have the necessary background. This has been gnawing at me. Professor Nelson's book offers some brilliant insights, and it is a shame if historians are avoiding it.

It may be a historian with no legal training would not understand parts of the book, or rather find portions of insufficient interest to be worth the investment of time and effort necessary to master them. Nonetheless, I think the book is worth reading, even if you skim portions.

Let me describe briefly one way in which Americanization really deepened my understanding of colonial political culture. The Massachusetts legal system was built almost entirely on juries. No one could be criminally convicted, or held civilly liable, unless a jury said so. This contributed to the fact that British rule over Massachusetts was singularly weak. Britain could pass whatever laws it wanted, but they could be enforced only through Massachusetts juries. This gave rise to the possibility of "jury nullification", the phenomenon of juries refusing to convict or find civil liability because they refuse to follow the law.

We have jury nullification occasionally. Think of the OJ case, where the jurors refused to convict OJ despite overwhelming evidence of his guilt. However, today jury nullification is rather rare, because we have built into the legal system a number of procedures that are designed to minimize it. Among other things (and in no particular order): the judge presiding at a trial instructs the jurors, usually in great detail, as to what the law is and tells them they must follow it; lawyers are not permitted to tell jurors what the law is or that it is different from what the judge says it, nor can lawyers argue to juries that they can or should not convict even if the judge's instructions suggest that they should (that is, lawyers may not tell or suggest to juries that they have the power of jury nullification). There are also various procedural devices that take away cases from juries where the facts are clear (such as summary judgment) or where juries have ignored the evidence (motions for new trials or judgment notwithstanding the verdict).

Eighteenth Century Massachusetts, on the other hand, had a legal system that had jury nullification built into its core. Trials were presided over by multiple judges, who often gave conflicting legal instructions, or instructions that were so vague and general as to be virtually meaningless. Lawyers routinely argued the law as well as the facts -- that it, they were in effect free to tell jurors that the jurors had absolute discretion to decide that someone was not guilty or not liable. There was virtually no way to avoid a jury trial or overturn a jury verdict after it was rendered.

In other words, the law on a day-to-day basis was whatever local juries said it was. This in turn meant that British rule was extraordinarily weak. If a law was unpopular, as a practical matter it would not be enforced. Conversely, the discretion of juries reinforced community pressure and customary, local rules of conduct.

Professor Nelson's book is filled with such revelations. For someone steeped in colonial and early 19th Century American history, I heartily recommend it. Again, you may wind up skimming some portions, but I think you'll still find it valuable.

The Fourteenth Amendment and Incorporation XII: Robert Safford Hale

OK, let’s discuss an opponent of the Fourteenth Amendment – or at least the version of the amendment as it existed in late February 1866. One of the principal opponents of that early version in the House was Robert Safford Hale (R. – NY). Hale hailed (sorry, I can’t help myself!) originally from Vermont (born 1822). He moved to Elizabethtown, New York (near Lake Champlain), opened a legal practice there in 1847 and later became a judge. The 39th Congress was his first term in Congress. He was one of the most conservative Republicans in the House.

Hale spoke against Bingham’s proposed amendment as it then stood on February 27, 1866. Rep. Hale’s remarks concerning the amendment as then proposed focused on the “equal protection” language, not on the “privileges and immunities” language, which I have bracketed for sake of clarity:

“The Congress shall have power to make all laws which shall be necessary and proper to secure [to the citizens of each State all privileges and immunities of citizens in the several States, and] to all persons in the several States equal protection in the rights of life, liberty and property.”

Rep. Hale construed this language as “a grant [to Congress] of the right to legislate for the protection of life, liberty, and property, simply qualified with the condition that it shall be equal legislation.” Granting Congress such power, he argued, would turn the Constitution on its head. Rather than being limited to specific, enumerated powers, Congress would be granted sweeping powers to legislate on almost every subject.

In the course of his speech, Rep. Hale turned to the Bill of Rights. His explanation of his understanding of the Bill demonstrates that Rep. Hale believed that the Bill of Rights was already binding on and enforceable against the States in court. He had no problem with that idea. He objected only to granting Congress the power to enforce the Bill of Rights through general legislation.

Rep. Hale began by setting forth his understanding of the Bill of Rights. It protected citizens by limiting Federal and State powers. What the Bill did not do was grant Congress power to enact legislation to enforce its provisions:

“Now, what are these amendments to the Constitution, numbered one to ten . . .. What is the nature and object of these articles? They do not contain, from beginning to end, a grant of power anywhere. On the contrary, they are all restrictions of power. They constitute the bill of rights, a bill of rights for the protection of the citizen, and defining and limiting the power of Federal and State legislation. They are not matters upon which legislation can be based.”

That did not mean, however, that the Bill of Rights conveyed rights without remedy. “Throughout they provide safeguards to be enforced by the courts, and not to be exercised by the Legislature.”

Rep. Hale obviously was unaware of Barron v. Baltimore. Rep. Bingham, who was aware of that case, jumped up and rudely challenged this assertion:

“I ask him [Mr. Hale] now if he knows of a single decision in which the sufficiency of the Constitution to secure to a party aggrieved in his person within a State the right to protection by the prosecution of a suit, which by the organic law of the State was denied to him, has ever been affirmed, either by Federal statute or Federal decision, or whether the nation has not been dumb in the presence of the organic act of a State which declares that eight hundred thousand natural-born citizens of the United States shall be denied the right to prosecute a suit in their courts, either for the vindication of a right or the redress of a wrong? I want an answer.”

In response, Rep. Hale admitted that he did not know of such a case. He simply assumed that the Constitution somehow protected the liberties of citizens. I quote the response in full because it is so striking:

“The gentleman will always get an answer when he asks me a question. It is never necessary for him to accompany his questions with a warning.

“I have not been able to prepare a brief for this argument, and therefore I cannot refer the gentleman to any case. As I never claim to be a very learned constitutional lawyer I have no hesitation in making the admission that I do not know of a case where it has ever been decided that the United States Constitution is sufficient for the protection of liberties of the citizen. But still I have, somehow or other, gone along with the impression that there is that sort of protection thrown over us in some way, whether with or without the sanction of a judicial decision that we are so protected. Of course, I may be entirely mistaken in all this, but I have certainly somehow had that impression.”

After another Representative joined in to ask Rep. Bingham whether he was aware of such a case, Bingham said that was “ready to answer the gentleman now, and to produce such a decision” – almost certainly Barron and Livingston v. Moore, the cases that he cited and quoted from the next day (see my post immediately below). Hale, however, objected that this was a “side issue” and stated that he preferred to continue with his speech.

Shortly thereafter, Hale nonetheless returned to the issue of court enforcement of the Bill of Rights. Yet again, he made clear that he understood that the Bill applied to the States and was enforceable against the States in court:

“If he [Rep. Bingham] claims that those provisions of the constitution or the laws of Oregon [to which Bingham had referred] are inconsistent with the bill of rights contained in the Constitution of the United States, then I answer that his remedy is perfect and ample, and the courts may be appealed to vindicate the rights of the citizens, both under civil and criminal procedure. Their powers are ample; it never was questioned, it never could be questioned, that the decrees of the courts, in all the States at least where slavery did not exist, have been thoroughly and sufficiently enforced.”

In short, even the most conservative Republican, one who clearly believed in a federal government of limited powers, believed that the Bill of Rights was binding on the States and thought that it was perfectly natural to assume that citizens could vindicate those rights in court.

No wonder, then, that the speeches of Rep. Bingham and Senator Howard explaining the Privileges or Immunities Clause elicited few if any objections. So far as I'm aware, no Republican – including Rep. Hale -- stated during the debates that he believed that the Bill of Rights did not and should not apply to and restrict the States. (As I’ve noted before, Radicals complained that the amendment did not go even further and grant political rights, particularly the right to vote, as well as civil rights.) Rep. Hale and a handful of other Republican legislators objected only to granting Congress sweeping enforcement powers.

The final version of the amendment passed by the House (and Senate) in June 1866 may have alleviated some or all of Rep. Hale’s concerns. The enforcement provision of the final version was placed in a separate Section 5. Although it affirmed the enforcement power of Congress, it did not contain the language that Rep. Hale found most offensive. It stated simply: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” Perhaps also, Rep. Bingham’s quotations from Barron and Livingston v. Moore and the need to overrule Dred Scott ultimately convinced Rep. Hale that the amendment was essential to "vindicate the rights of the citizens." For whatever reason, Hale voted for the final version of the amendment.

All quotes are from The Congressional Globe, 39th Congress, First Session, pp. 1063-65 (Feb. 27, 1866). All emphasis within the quotes is mine. Easy access to the Globe for the 39th Congress may be found here.

The Fourteenth Amendment and Incorporation XI: John A. Bingham

My last post inspired me to return to my discussion of the Fourteenth Amendment and Incorporation.

John A. Bingham (R. – Ohio) was a member of the Joint Committee on Reconstruction and the principal author of the Amendment. By contemporary Republican standards, he was no radical. Several modern scholars have ranked him as moderate or mildly conservative in relation to his Republican colleagues. He gave several speeches. To keep this post manageable, I will focus here on one of them, given on February 28, 1866.

At that point, Section 1 of the proposed Amendment had not reached its final form. As of February 28, 1866, it read as follows:

“The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.”

In his speech of February 28, Rep. Bingham made clear that he regarded the amendment as giving Congress the power to enforce the Bill of Rights against the States. After a brief introduction, he squarely stated the issue as follows:

“The proposition pending before the House is simply a proposition to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution today.”

He then turned to the question why the amendment was even necessary. Republicans almost universally believed that the Bill of Rights already applied to the States, and that Congress naturally had the power to enforce it. Unlike his less sophisticated colleagues, however, Bingham was aware of Barron v. Baltimore and its progeny. He pointed directly to Barron and another Supreme Court case, which had held that provisions of the Bill of Rights (the Fifth Amendment and the Seventh Amendment) were not binding on the States:

“A gentleman on the other side interrupted me [in debate recently] and wanted to know if I could cite a decision showing that the power of the Federal Government to enforce in the United States courts the bill of rights under the articles of amendment to the Constitution had been denied. I answered that I was prepared to introduce such decisions; and that is exactly what makes plain the necessity of adopting this amendment.

“Mr. Speaker, on this subject I refer the House and the country to a decision of the Supreme Court, to be found in 7 Peters, 247, in the case of Barron vs. The Mayor and City Council of Baltimore, involving the question whether the provisions of the fifth article of the amendments to the Constitution are binding upon the State of Maryland and to be enforced in the Federal courts. The Chief Justice says:

“’The people of the United States framed such a Government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this Government were to be exercised by itself; and the limitations of power, if expressed in general terms, are naturally, and we think necessarily, applicable to the Government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments, framed by different persons and for different purposes.

“’If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States.’

“I read one further decision on this subject – the case of the Lessee of Livingston vs. Moore and others, 7 Peters, page 551. The court, in delivering its opinion, says:

“’As to the amendments of the Constitution of the United States, they must be put out of the case, since it is now settled that those amendments do not extend to the States; and this observation disposes of the next exception, which relies on the seventh article of those amendments.’”

Invoking the ghost of Daniel Webster, Bingham then explained that he believed the Supreme Court was wrong, but only in part. Alluding to the Supremacy Clause and the Oaths Clause (Article VI, Clause III, which requires that all State officials “shall be bound by Oath or Affirmation, to support this Constitution”), Bingham explained that, in his view, the Constitution bound the States just as it bound the Federal government. The problem, Bingham believed, was that the Constitution contained no effective enforcement mechanism that penalized State officials for violating their oaths. There was a “right”, but no “remedy,” making the Bill of Rights “a mere dead letter.” The purpose of the amendment was to supply that enforcement mechanism.

[Aside: We have seen this “right but no remedy” argument, in a different context, before. Before the War, Salmon Chase and others had argued, in effect, that the Fugitive Slave Clause conveyed a right on the slave states, but that they had no remedy if free states refused to turn over fugitive slaves.]

“Why, I ask, should not the ‘injunctions and prohibitions,’ addressed by the people in the Constitution to the States and the Legislatures of States, be enforced by the people through the proposed amendment. By the decisions read, the people are without remedy. It is admitted in the argument of Mr. Webster, just cited, that the State Legislatures may by direct violations of their duty and oaths avoid the requirements of the Constitution, and thereby do an act which would break up any government.”

[I would add here that Bingham’s understanding of the Constitution was almost certainly wrong as a historical matter. Neither the Supremacy Clause nor the Oaths Clause bound State legislators to pass State laws that did not violate the Bill of Rights (or any other requirements of the Constitution that did not expressly apply to the States). That, however, is irrelevant. Bingham’s understanding, or misunderstanding, was a common one; indeed it represented the mainstream Republican view.]

Bingham then continued as follows, in a passage that emphasized that the proposed amendment supplied no new rights (because the Bill of Rights, properly construed, already applied to the States), but rather an enforcement mechanism for those rights (emphasis added):

“Those oaths have been disregarded; those requirements of our Constitution have been broken; they are disregarded to-day in Oregon [more about Oregon in another post]; they are disregarded to-day, and have been disregarded for the past five, ten, or twenty years in every one of the eleven States recently in insurrection.

“The question is, simply, whether you will give by this amendment to the people of the United States the power, by legislative enactment, to punish officials of States for violation of the oaths enjoined upon them by their Constitution? That is the question and the whole question. The adoption of the proposed amendment will take from the States no rights that belong to the States. They elect their Legislatures; they enact their laws for the punishment of crimes against life, liberty, or property; but in the event of the adoption of this amendment, if they conspire together to enact laws refusing equal protection to life, liberty, or property, the Congress is thereby vested with power to hold them to answer before the bar of the national courts for their violation of their oaths and of the rights of their fellow-men. Why should it not be so? That is the question. Why should it not be so? Is the bill of rights to stand in our Constitution hereafter, as in the past five years within eleven States, a mere dead letter? It is absolutely essential to the safety of the people that it should be enforced.

* * *

“Is it not essential to the unity of the people that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States? Is it not essential to the unity of the Government and the unity of the people that all persons, whether citizens or strangers, within this land, shall have equal protection in every State in this Union in the rights of life, liberty and property?”

A few minutes later, Bingham was even more explicit as to what his understanding of the Constitution was. In the process, he made clear that he equated “the privileges and immunities of citizens” with “these provisions of the bill of rights.” Specifically citing the Supremacy Clause and the Oaths Clause, Bingham explained that the Framers had placed an obligation in the Constitution – the obligation of State officials to honor the Constitution. They had even placed in the Constitution an enforcement mechanism of sorts – the final portion of the Supremacy Clause, which provided that “the Judges in every State shall be bound thereby [i.e., by the Constitution], any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” What the Framers had failed to do was provide an effective enforcement mechanism, namely power in the Congress to enforce those obligations and rights. The purpose of the proposed amendment was to supply Congress with that power:

“With these provisions in the Constitution for the enforcement in every State of its requirements, is it surprising that the framers of the Constitution omitted to insert an express grant of power in Congress to enforce by penal enactment these great canons of the supreme law, securing to all the citizens in every State all the privileges and immunities of citizens, and to all the people all the sacred rights of person – those rights dear to freemen and formidable only to tyrants – of which the fathers of the Republic spoke, after God had given them the victory, in that memorable address in which they declared, ‘Let it be remembered that the rights for which America has contended were the rights of human nature?’ Is it surprising that essential as they held the full security to all citizens of all the privileges and immunities of citizens, and to all the people the sacred right of person, that having proclaimed them they left their lawful enforcement to each of the States, under the solemn obligation resting upon every State officer to regard, respect, and obey the constitutional injunction?

“What more could have been added to that instrument to secure the enforcement of these provisions of the bill of rights in every State, other than the additional grant of power which we ask this day? Nothing at all.”

The New York Times reported a summary of Bingham's February 28, 1866 speech and specifically noted Bingham's belief regarding the purpose of the proposed Amendment. "This was simply a proposition to arm the Congress of the United States ... with power to enforce the Bill of Rights as it stood in the Constitution." N.Y. Times, Mar. 1, 1866, at 5.

Later in 1866, while the Fourteenth Amendment was awaiting ratification by the States, Bingham had his speech published as a separate pamphlet. In the title, the pamphlet specifically described the proposed amendment as one “to Enforce the Bill of Rights.” (The full title is, John A. Bingham, One Country, One Constitution, and one People, Speech of Hon. John A. Bingham, of Ohio, in the House of Representatives, Feb. 28, 1866, in Support of the Proposed Amendment to Enforce the Bill of Rights (Washington, Printed at the Congressional globe [sic] office, 1866)).