Scott v. Emerson IV: "It Is Humiliating"

When we left him, Justice Scott had set the stage: laws are generally and presumptively local; if a state chooses to apply foreign law, it does so voluntarily and as a matter of comity.

Having set the stage, Justice Scott moves in closer. Two considerations suggest that Missouri should decline to apply foreign law here. First, "[i]t is a humiliating spectacle, to see the courts of a State confiscating the property of her own citizens by the command of a foreign law." States that free slaves are enforcing their own laws; should not Missouri do the same?

The geography of Missouri makes it especially vulnerable. "On almost three sides the State of Missouri is surrounded by free soil." "[N]umberless" slaves might be freed when "those living along an extreme frontier" sent them even briefly across the border.

Climate Change: Greenland

This article appears to contain a really inconvenient truth:

Petr Chylek of the department of physics and atmospheric science at Dalhousie University in Nova Scotia notes that Gore in his movie "suggests the Greenland melt area increased considerably between 1992 and 2005."

But, Chylek points out, "1992 was exceptionally cold in Greenland" and that "if Gore had chosen for comparison the year 1991, one in which the melt area was 1% higher than in 2005, he would have to conclude that the ice sheet melt area is shrinking and that perhaps a new Ice Age is just around the corner."

Scott v. Emerson III: "The Act is the Thing"

The majority decision was written by Justice William Scott. After describing the facts, Justice Scott began by identifying the basis for the court's decisions "to exact the forfeiture of emancipation." It was not "a presumed assent of the master, from the fact of having voluntarily taken his slave to a place where the relation of master and slave did not exist." Rather, the decisions presumed "it is the duty of the courts of this State to carry into effect the Constitution and laws of other States and territories, regardless of the rights, the policy or the institutions of the people of this State." "The old cases say, the intent is nothing, the act is the thing."

Justice Scott immediately questioned whether this duty existed. Although the States were "associated for some purposes of government," they "have always been regarded as foreign to each other" "in relation to their municipal concerns." In "all . . . matters of internal police," such as the laws of estates, States generally follow their own laws and not those of other States or federal laws "enacted for the mere purpose of governing a territory."

In short, there was no obligation to observe or enforce the laws of other States:

Every State has the right of determining how far, in a spirit of comity, it will respect the laws of other States. Those laws have no intrinsic right to be enforced beyond the limits of the State for which they were enacted. The respect allowed them will depend altogether on their conformity to the policy of our institutions. No State is bound to carry into effect enactments conceived in a spirit hostile to that which pervades her own laws.

Scott v. Emerson II: A Soldier and A Slave

The facts, as the Supreme Court of Missouri understood them, were simple.

Dr. John Emerson was a surgeon in the U.S. Army. From 1834 until April or May 1936, Emerson "was stationed at Rock Island, a military post in the State of Illinois." After that, Emerson was stationed until 1838 "at Fort Snelling, also a military post in the territory of the United States" "ceded to by France to the United States, under the name of Louisiana, which lies north of 36 degrees 30 minutes, north latitude, not included within the limits of the State of Missouri." Dred Scott was Emerson's slave, and Emerson "held him in servitude" in both locations.

Years later, Scott brought suit for his freedom in the St. Louis Circuit Court. Because Emerson had died, Scott named as defendant Irene Emerson, Dr. Emerson's wife and administratrix.

At trial, the Circuit Court instructed the jury, "in effect, that if such were the facts, they would find for Scott. He accordingly obtained a verdict. The defendant moved for a new trial on the ground of misdirection by the court, which being denied to her, she sued out this writ of error."

It is worth recalling that we have run into a virtually identical scenario before. In Rachael v. Walker (1836), the slaveowner was a soldier posted to Fort Snelling (near Minneapolis). Sixteen years earlier, the Supreme Court of Missouri held that Rachael's servitude there entitled her to be free.

Climate Change

Roy W. Spencer, principal research scientist at the Global Hydrology and Climate Center of the National Space Science and Technology Center, has a column well worth reading in today's New York Post: "Not That Simple: Global warming: What we don't know."

Tig at Dusk

President Lincoln's Suspension of Habeas Corpus

Stephen I. Vladeck of the University of Miami School of Law has made available via SSRN a very nice article on President Lincoln's suspension of habeas corpus during the Civil War, entitled "The Field Theory: Martial Law, the Suspension Power, and the Insurrection Act," forthcoming in 80 Temple Law Review. Based on an analysis of another, little-noticed Civil War habeas case, Ex parte Field, 9 F. Cas. 1 (C.C.D. Vt. 1862) (No. 4761), the article explores whether President Lincoln's suspension of the writ was, in effect, legislatively authorized by earlier federal statutes that authorized the executive to call out the militia and to impose martial law to suppress insurrections. It thus suggests there may be a way to avoid the all-or-nothing dichotomy that is usually presented when considering Lincoln's actions and Chief Justice Taney's response in Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487) (Taney, C.J.).

Civil War buffs who are less interested in all the legal mumbo-jumbo may nonetheless want to give the article a look. It provides nice descriptions of events in Maryland leading to Lincoln's suspension of the writ, Merryman's arrest and suit, Taney's decision and Lincoln's response. You can read the more "historical" parts and skim the rest. Did you know, for example that Merryman later named his son Roger Brooke Taney Merryman? For good measure, you also get some brief discussion about early Congressional statutes delegating to the Executive authority to call out the militia and the "land and naval force[s] of the United States," Andrew Jackson's declaration of martial law in New Orleans in December 1814, Congress' later reimbursement of the fine imposed upon Jackson, and the 1841-42 Dorr War in Rhode Island. Fun stuff!

The abstract of the article is as follows:

In Ex parte Merryman, Chief Justice Taney famously rejected President Lincoln's power to unilaterally suspend the writ of habeas corpus in and around Baltimore at the outset of the U.S. Civil War. According to Taney, only Congress can provide for suspension of the writ, and Congress had not so provided. Just one year later, though, the Vermont federal circuit court held, in Ex parte Field, that the suspension of habeas corpus is necessarily coincident to the imposition of martial law. Because President Lincoln had the statutory authority to impose martial law by virtue of the so-called Militia Acts, Field concluded, Congress had effectively, if not explicitly, given sanction to Lincoln's suspension of habeas in those areas where martial law was validly in force.

This Article attempts a thorough reconstruction of the "Field theory," beginning with the facts of Merryman itself before moving to the pre-Civil War precedents on which the decision in Field relied. As it concludes, the President's authority to impose martial law in crisis situations does in fact derive from the Militia Acts, and there is at least a colorable argument that Baltimore was under martial law at the time Merryman was decided. More importantly for present purposes, though, the Article analyzes the deep and profound questions as to the substantive preconditions for the imposition of martial law through the lens of the modern-day Insurrection Act, concluding that the statutory framework, in current form, does not adequately demarcate the point past which martial law is appropriate. Because Congress has the power to provide for the calling forth of the military to respond to domestic crises, Congress can provide for greater accountability - especially at the end of the next emergency - and, the Article concludes, Congress should do so.

Professor Vladeck, by the way, blogs at Prawsblawg, one of my favorites.

The Fourteenth Amendment and Incorporation XIII: A New Article

I have previously published a number of posts here discussing the background of the Privileges or Immunities Clause of Section 1 of the Fourteenth Amendment, analyzing portions of the speeches and debates in the 39th Congress concerning the Amendment, and arguing that the Clause was clearly intended to apply the Bill of Rights against the states. You are invited to look under the tags "Fourteenth Amendment" and Incorporation" to find those earlier entries.

I am pleased to see a new article that reaffirms this conclusion. Bryan H. Wildenthal of the Thomas Jefferson School of Law has released on SSRN a working draft of an article entitled "Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866-67." The full article is available via SSRN. Here is the abstract:

For many years, the reigning view among scholars was that the Fourteenth Amendment was never understood (except by a few “eccentric” or “confused” figures) to “incorporate” or nationalize the entire Bill of Rights so as to apply it to the states. This modern conventional view was developed primarily by Charles Fairman and Stanley Morrison in 1949, and defended by Raoul Berger from 1977 to 1997. A revisionist, pro-incorporation view was expressed by Justice Hugo Black (and three colleagues) in Adamson v. California (1947), echoing the late-19th century view of the elder Justice John Marshall Harlan, and defended by William Crosskey in the 1950s and Alfred Avins in the 1960s (among others). Michael Curtis, starting in 1980, led a renewed wave of revisionist scholarship, joined by Akhil Amar, Richard Aynes, Earl Maltz, and Stephen Halbrook (among others) in the 1990s.

Few scholars would dispute that the modern conventional account has been severely challenged. Many have been persuaded that Black (and the “eccentric” Justice Harlan the elder) were right all along. But some still reject or question the legitimacy of the “incorporation doctrine.” Hence the purpose of this article. It demonstrates the truly shocking and inexcusable extent to which Fairman, Morrison, and especially Berger mishandled the evidence and profoundly misunderstood the meaning of the Fourteenth Amendment. The extent of their scholarly malpractice has not been fully or adequately explored until now. This makes it especially disturbing that their works remain amazingly influential, decades after they were largely debunked. Fairman's 1949 article, in particular, has been viewed as a “classic” for more than half a century. It is one of the most-cited law review articles of all time.

Surprisingly, my research has shown that there is still a great deal new to say about the original understanding of the Amendment in 1866-67. I have found relevant original source materials never adequately analyzed before. These include a May 1866 New York Times editorial published two days after the Amendment was introduced in the Senate, and an essay by a Kentucky state judge published during 1866-67 that suggests the goal of nationalizing the Bill of Rights may have been widely understood during the ratification period.

This article, following up on two articles I published in 2000, is part of a broader project that will include several forthcoming articles, to be eventually combined into a book.

"Go After the Head of the Snake"

What a terrible mess Lyndon Baines Johnson inherited in Vietnam. JFK had created the mess. He had refused to fight for Laos, thereby permitting the North Vietnamese to open the second Ho Chi Minh trail through that country. For short-sighted and self-serving political reasons he had appointed and then lacked the courage to relieve his Republican rival, Henry Cabot Lodge, as U.S. Ambassador and thus prevent the coup against and assassination of Ngo Dinh Diem in November 1963.

But JFK did not live long enough to reap the whirlwind. It fell on LBJ to watch and react as resulting political chaos promptly led to an accelerating decline in South Vietnamese military effectiveness, just as North Vietnam readied and then in the Spring of 1965 launched major military operations involving large regular NVA units.

LBJ was not blameless. He accepted the same "limited war" concept that JFK and his advisors had championed, and he saddled himself with those same JFK advisors who had helped create the mess. Even after the discovery of many large regular NVA units in South Vietnam, his own predilections and the counsel of his advisors led him to reject the sage advice of former President Eisenhower to "go after the head of the snake instead of the tail."

That said, however, LBJ was a tragic figure, not a villain. Trapped in a situation not of his own making, he received little help. His pleas to his advisors for solutions resulted in a choice among proposals that, at best, attacked the tail:

"'I'm pretty depressed reading all thse proposals,' Johnson told McNamara on July 2[, 1965]. The President confided to his wife, 'Vietnam is getting worse every day. I have the choice to go in with great casualty lists or to get out with disgrace. It's like being in an airplane and I have to choose between crashing the plane or jumping out. I do not have a parachute.'"

Mark Moyar, Triumph Forsaken: The Vietnam War, 1954-1965 (New York: Cambridge University Press 2006), at 409.

In retrospect, of course, LBJ should have either gone after the head of the snake or, failing that, jumped out of the plane. But hindsight is 20-20.

Climate Change

Here is a thoughtful article at Opinion Journal: "Plus Ca (Climate) Change: The Earth was warming before global warming was cool."

National Review Online has a new feature/group blog dedicated to climate change called "Planet Gore." If you're interested in getting something other than the party line, keep an eye on it. Thanks to Jay Richards at Planet Gore for the link to the Opinion Journal piece.

The Death of Contract

I'm stunned and saddened that I can't find a picture of the late, great Grant Gilmore on the internet. Professor Gilmore invented Article 9 and was utterly brilliant. A mesmerizing teacher. I didn't understand ten percent of what he said but was hypnotized.

Professor Gilmore's sardonic wit and piercing intelligence live on in his The Death of Contract, the single greatest legal book I have ever read. For you lawyers, at least, don't be intimidated. At barely 100 short pages (my version is about 4" by 6"), it is both a stunning deconstruction of contract theory and laugh-out-loud funny. When I skim a chapter, I can still hear his highly expressive but incomprehensible mumbling. Rest in peace, Professor!

Contorts lives!

City Stereo

It's been a long time since I've told you that I love low-power tube amps and high-efficiency single-driver speakers, so I'll tell you again: I love low-power tube amps and high-efficiency single-driver speakers.

My setup in my small city apartment is simple: Lynn Karik-Numerik CD/DAC, conrad-johnson tube preamp, Audionote 300B stereo kit amp (8W), and small DIY speakers with Fostex drivers. The picture above was taken years ago, but it will give you the idea. Not ideal for Wagner or Mahler, but then again I'd be tossed out if I really cranked it up anyway.

Playing now is Tom Rapp's (Pearls Before Swine) The Use of Ashes, from the recently-released Jewels Were The Stars collection. I've had Tom Rapp's albums for over thirty-five years (yikes!) and play them at my weekend house, where I have a setup that includes a Rega turntable. It's about friggin' time that these albums have come out on CD.

Soviet Espionage in America

Over at Millard Fillmore's Bathtub, I've been giving host Ed Darrell a hard time about his dewy-eyed recollections of Pete Seeger. Sorry, Ed -- although I'm dead serious.

That said, if you're interested in the history of Soviet espionage in the United States during the 1930s through the 1950s, two of the finest books on the subject are Sam Tanenhaus's biography of Whittaker Chambers and Allen Weinstein's The Haunted Wood: Soviet Espionage in America -- The Stalin Era. Both are extremely well-written, definitive and damning.

Scott v. Emerson I: Background and Approach

Unlike the cases I have discussed to date, there is copious information available, both online and in books (you know, the kind made out of paper), about Dred Scott. Although this includes a fair amount of information about the background, most of the discussion centers, of course, on Justice Taney's infamous 1857 Supreme Court decision.

I am going to focus elsewhere -- on the decision of the Supreme Court of Missouri in Scott v. Emerson, 15 Mo. 576, 1852 WL 4171 (1852), Scott's first case, filed in Missouri state court. As I pointed out in an earlier post, the Missouri Supreme Court's decision made Scott's later, federal court suit, and the United States Supreme Court's decision in that second suit, necessary -- and possible. In other words, if the Supreme Court of Missouri had simply adhered to its earlier opinions, Scott would have won on state-law grounds. The United States Court could not have intervened.

In his magnificent -- and I do mean magnificent -- book, The Dred Scott Case: Its Significance in American Law and Politics, Don E. Fehrenbacher explores (among many other things) the many uncertainties and ambiguities about the facts underlying and surrounding Dred Scott and his cases. I will take a different approach. For my purposes, the important facts are those that the Supreme Court of Missouri understood to exist. It was based on those perceived facts that the court issued its decision.

In posts to follow, I will review the facts as the Supreme Court of Missouri understood them. I will then review the court's decision and analysis. As I have with other cases, I intend to quote liberally from the decision to give you a taste of the passion -- red-hot anger is a better term -- that underlay it. Dred Scott the man became, unfortunately, collateral damage in the seething bitterness and hatred roiling the country in the years immediately preceding the Civil War.

Dominoes

"No one can say with absolute certainty what would have happened had South Vietnam been defeated in 1965, considering the complex interaction of many individuals with a diverse array of personalities, cultures, and limitations, and considering the powerful role of chance in human conflict. What can be said, based on analysis of the information available then and subsequent revelations, is that staying in South Vietnam in 1965 was a much more promising option for the United States than leaving, even if it meant fighting the war in the flawed way that the United States ultimately fought it. High was the probability that the fall of Vietnam in 1965 would have knocked over many dominoes in Southeast Asia."

Mark Moyar, Triumph Forsaken: The Vietnam War, 1954-1965 (New York: Cambridge 2006), at 388.

Climate Change

This Thomas Sowell article, "It's the Science, Stupid" discusses some of the academic dissenters.

Slave Freedom Law in Missouri in the 1840s: "This Anomalous Character"

We have seen that, between 1824 and 1837, the Supreme Court of Missouri decided at least seven slave freedom suits. After 1837, a lull ensued; the court did not decide its next slave freedom suit until 1845.

The reason for the lull is unknown. Sometimes, these things just happen. It is possible to speculate, however, that law as laid down by the Supreme Court was at last understood. The fact that the law was settled meant that fewer cases went to trial, and in those that did the Circuit Court in St. Louis delivered proper instructions. The parties therefore understood that there was no point to an appeal.

By the mid-1840's, a harsher wind was beginning to blow. In 1845 and 1847, the Supreme Court of Missouri decided two cases, Chouteau v. Pierre, 9 Mo. 3, 1845 WL 3817 (1845) and Charlotte v. Chouteau, 11 Mo. 193, 1847 WL 3811 (1847). Although the decisions did not change the existing law, they clearly reflected a more crabbed approach to slave freedom suits.

The cases were factually related: the two plaintiffs, Pierre and Charlotte, were brother and sister (or at least half-brother and half-sister). Their mother, Rose, "was a negress, and was born in Montreal, in Lower Canada, about the year 1768." In about 1791, she was taken to Prairie du Chien, in the Northwest Territory. She remained there until about 1794. In 1795 she was taken to St. Louis. Pierre was born in Missouri, probably in the late 1790s, and lived there in slavery for over forty years. It is not clear whether Charlotte was born before or after her brother. By the 1840s, Rose was presumably dead, having lived in slavery her entire life.

In both suits, the siblings claimed that they were free due to their mother's residences. First, they asserted that slavery had been forbidden in Canada while their mother was there. Second, they asserted that her residence in the Northwest Territory in the 1790s made her free.

Without overruling previous cases, both decisions signaled a less generous view of slave freedom law. For example, the court held that Rose's residence in Northwest Territory did not free her children. Although the Northwest Ordinance was passed in 1787, the court conducted historical research and concluded that the British did not physically evacuate Prairie du Chien (where Rose resided) until mid-1796. Therefore, the Northwest Ordinance did not have "any force or validity" at Prairie du Chien in 1791-94, and Rose "never could have acquired any rights under" it.

More important, however, is the tone. Charlotte v. Choueau, the 1847 case, concludes with the following rhetoric, not encountered in earlier cases, that bodes ill for the future, for it suggests that the court is beginning to question the extent to which Missouri should observe the laws of free states and territories:

The instructions asked by the plaintiff [slave] need no particular comment. Their general spirit is not in conformity to the policy of our laws or the principles heretofore adjudicated by our courts. Whatever may be the policy of other governments, it has not been the policy of this State, to favor the liberation of negroes from that condition in which the laws and usages have placed the mass of their species. On the contrary, our statute expressly throws the burden of establishing a right to freedom upon the petitioner, and the provision is both wise and humane. Neither sound policy nor enlightened philanthropy should encourage, in a slaveholding State, the multiplication of a race whose condition could be neither that of freemen nor of slaves, and whose existence and increase, in this anomalous character, without promoting their individual comforts or happiness, tend only to dissatisfy and corrupt those of their own race and color remaining in a state of servitude. Different principles and other presumptions may be very safely and perhaps very wisely indulged in where the institution of slavery has never existed or has been entirely abolished.

Wilson v. Melvin II: "They Must Have Been Very Incredulous Indeed"

Justice George Tompkins, whom we have encountered before, wrote the decision for the unanimous Supreme Court of Missouri. After describing the facts, Justice Tompkins discussed the court's earlier decisions, focusing particularly on Julia v. McKinney. I have reviewed Julia at length in earlier posts. Based on his review, Justice Tomkins reaffirmed the general rule that a slave did not become free merely by "traveling" through a free state or territory with his master. However, he gave traveling a restrictive definition. It required continual movement with only "necessary" stops:

"[Traveling] should last so long as might be necessary according to the common modes of traveling, to accomplish [the slaveholder's] journey through the State. If accident should happen to the emigrant, which, in ordinary cases, would make it reasonable and prudent to suspend his journey a short time, we think he might do so without incurring a forfeiture [i.e., loss of his slave], if he resumes his journey as soon as he safely could. Something more than mere convenience, or ease of the emigrant, ought to intervene to save him from a forfeiture. Something of the nature of necessity should exist before he would, or ought, to be exempted from the forfeiture."

So measured, Justice Tompkins held, the jury instructions were "wrong." In effect, Justice Tompkins held that it was irrelevant whether Melvin had used Wilson as a slave in Illinois. It was also irrelevant that Melvin had kept his wagon loaded. The sole question was whether Melvin "made any unnecessary delay in Illinois."

Justice Tompkins's observations about the case make clear that his decision was based on no mere technicality. He was angry that the trial judge had given "misleading" instructions, and he did not believe that any reasonable jury could rule against Wilson. He came close to saying in so many words that he believed that Melvin's defense -- that he had not intended to reside in Illinois -- was a lie that no one could believe:

"[B]ut it being proved that he [Melvin] stayed there [in Illinois] for three or four weeks before he went to St. Louis, and that, in a very short time, he returned and made a crop of corn, and remained in the State to gather and sell it. If they [the jury] believed that the defendant did this, without any intention of domiciliating himself therein, they must have been very incredulous indeed. So that even admitting that it was in evidence, that the defendant had, when he left home, meditated a journey through Illinois to Missouri, it appears that the jury ought, in conformity with this instruction, to have found for the plaintiff. Because, then, all the instructions given by the court appear to me to be calculated to mislead a jury."

The court therefore reversed the judgment against Wilson and remanded for a new trial "to be proceeded in conformably [sic] to this opinion."

Wilson v. Melvin I: A Careful Slaveowner

Before I get to Scott v. Emerson (1852), however, there are a few more cases I want to look at briefly.

Wilson v. Melvin, 4 Mo. 592, 1837 WL 2327 (1837), is probably the high-water mark for slave freedom suits in Missouri. As usual, let's start with the facts.

In March 1834, the defendant, Daniel Melvin, moved from Tennessee to St. Clair County, Illinois, where his son already lived. Melvin brought with him two slaves, one of whom was the plaintiff, Daniel Wilson. (Interestingly, this is the first slave freedom case I have discussed in which the caption identifies the slave by his last name rather than his first.)

Melvin moved with the apparent intention of residing in Illinois: he came with a wagon and team. However, before he left or when he arrived, he was warned that, if his slaves established residence in Illinois, the slaves would obtain their freedom. He therefore parked the wagon on his son's property and did not unload it. "He appears to have been impressed with the belief that unloading his wagon would have been evidence that he had a fixed place of abode." He rented land nearby "and made a crop of corn on rented ground."

Melvin also apparently took steps to avoid using his slaves as slaves while in Illinois. During this period, "the slaves did little except to feed the horses." It also seems that Wilson, the slave, hired himself out on odd jobs and probably gave most of his pay to Melvin, but there was no evidence that Melvin had arranged this work or even encouraged it.

After a month or so, Melvin took his two slaves to St. Louis, where he sold them. Wilson then brought this suit in the state Circuit Court of St. Louis County.

At trial, the Circuit Court gave the jury quite liberal instructions. Among other things, the court instructed that "[i]f they shall be of the opinion that the defendant [Melvin], being a domiciliated resident of the State of Illinois, used the plaintiff as his slave therein, they shall find for the plaintiff [Wilson]." The court gave a similar instruction concerning hiring out. Presumably because there was no clear evidence that Melvin had actually used or hired out Wilson as a slave in Illinois, the jury nonetheless returned a verdict in favor Melvin and against Wilson.

Wilson then appealed to the Supreme Court of Missouri. In the next post, we shall see the Supreme Court stretching to reverse.

Stringers: David Halberstam and Neil Sheehan Say "Ouch!"

Given the current problems with anti-US and anti-Israeli stringers in the Middle East, it's interesting to read that this is not a new phenomenon:

"Two of the sources upon whom the journalists [in Vietnam in 1963] relied most heavily, Pham Ngoc Thao and Pham Xuan An, were actually Communist agents. . . . Pham Xuan An [pictured] was a member of the international press itself, for he worked as a stringer for Reuters. Muoi Huong, the Communist who recruited both Pham Ngoc Thao and Pham Xuan An, later said that he had told An to become a journalist for the very purpose of influencing foreign reporters. . . . [David] Halberstam [of the New York Times] and [Neil] Sheehan [of UPI] relied heavily on information from Pham Xuan An; Halberstam considered An to be their best source on the South Vietnamese officer corps because of his supposed contacts among the officers. The newsmen's reliance on Pham Xuan An goes a long way toward explaining why the press kept reporting dissatisfaction among the officers in 1963 that did not actually exist."

Mark Moyar, Triumph Forsaken: The Vietnam War, 1954-1965 (New York: Cambridge University Press 2006), at 214-15.

Another Climate Change Link

"Antarctic temperatures disagree with climate model predictions."

John Paul Vann Says "Ouch!"

"As an Army officer, [John Paul Vann] demonstrated an extraordinary willingness to risk his life for military gain, which would win him much respect. He had charisma, tremendous energy, and a knack for planning military operations. His upbringing, however, undoubtedly contributed to his serious character flaws. One of the most damaging of these flaws was a penchant for lying."

Mark Moyar, Triumph Forsaken: The Vietnam War, 1954-1965 (New York: Cambridge University Press 2006), at 173.

David Halberstam Says "Ouch!"

"[Homer] Bigart's replacement as the New York Times' correspondent [in Vietnam in 1962] was David Halberstam, who like [Neil] Sheehan hailed from the Northeast and was a recent Harvard graduate. Halberstam was twenty-eight when he came to Vietnam. Before he left, fifteen months later, he would do more harm to the interests of the United States than any other journalist in American history."

Mark Moyar, Triumph Forsaken: The Vietnam War, 1954-1965 (New York: Cambridge University Press 2006), at 170.

Slave Freedom Suits in Missouri: A Review

I have now discussed six cases decided by the Supreme Court of Missouri between 1824 and 1836: Winny v. Whitesides (1824); Merry v. Tiffin (1827); Milly v. Smith (1829); Julia v. McKinnney (1833); Nat v. Ruddle (1834); and Rachael v. Walker (1836). In each, the issue was whether Missouri courts should award a slave his or freedom because that slave had, at some point in the past, resided in a free state or territory.

The cases are remarkable. In each, the Supreme Court held that Missouri courts should apply the law of the free state or territory if the slave had resided there. Although the court drew the line at truly transitory presence, the court interpreted “residence” broadly. Although it characterized a master’s loss of his slave as a “forfeiture,” it repeatedly rejected attempts by slaveholders to narrow the definition of residence in lawyerly ways that would probably not have raised many eyebrows. To the contrary, the court expressed its frustration with slaveholders continued to contest what the court regarded as well-settled legal precedent.

The cases also suggest that the slaveholder litigants were not the only people unhappy with the court’s rulings. In rendering its decisions, the court was repeatedly forced to reverse jury instructions given by the state Circuit Court in St. Louis. Trial judges seem to have been sympathetic to slaveholder concerns and were interpreting the Supreme Court’s precedents to avoid or at least reduce their impact on slaveholders.

Finally, and perhaps most worthy of note, is what the cases do not say. There is no indication that even slaveholders were arguing that Missouri courts should not give some effect to the laws of the free states and territories. There is no suggestion that even slaveholders were contending that Missouri should simply apply its own law and ignore the law of other states and territories. Such contentions were apparently too outlandish for even determined slaveholders to make in the 1820s and 1830s.

I’m sure that you know where I am going by now. In the early 1850s, all this will change. In installments to follow, I will discuss the Supreme Court of Missouri’s decision in Scott v. Emerson, 15 Mo. 576, 1852 WL 4171 (1852). The United States Supreme Court’s later decision in Scott v. Sandford, 60 U.S. 393 (1857), is far more famous (or infamous); but it is the decision of the Supreme Court of Missouri – reversing almost thirty years of state law – that made the later decision necessary – and possible.

The Earliest Lincoln Photo?

Brian Dirck at A. Lincoln Blog may be interested in this article reporting that the Kaplan Daguerrotype (above) may be the earliest known photograph of Abraham Lincoln, dating perhaps to the early 1840s.

Rachael v. Walker III: Justice McGirk Becomes Annoyed

As you may recall, the attorney for Walker, Rachael’s owner, claimed that Rachael’s stays at Fort Snelling (now in Minnesota) and Prairie du Chien, Michigan, did not make her free due to “necessity” – Stockton, Rachael’s owner at the time, was an officer in the U.S. Army and was posted to those sites.

Justice Matthias McGirk of the Supreme Court of Missouri expressed annoyance verging on disgust with the repeated attempts of slaveowners to avoid what he regarded as well-settled law. “It seems that the ingenuity of counsel and the interest of those disposed to deal in slave property, will never admit anything to be settled in regard to this question.” He therefore found it necessary “to state again the principles on which this court has heretofore rested in the many decisions heretofore made in regard to this ordinance.” He then reviewed some of those cases, including Winny v. Whitesides (1824) and Julia v. McKinney (1833).

The court then laced into Walker’s defense, denying that “necessity” required Stockton to bring a slave into free territory:

“In that case [Julia v. McKinney], the court say there should be something like necessity existing, to justify the owner of a slave to keep such slave in the country, so as to save a forfeiture. The counsel [for Walker] insist on a necessity as regards the owner to stay and abide in the Missouri territory and Michigan for more than two years, and during all that time to keep the plaintiff there as a slave. It is said the officer was under orders from the government to remain there where he did, and therefore a necessity existed which brings him within the reason of the decision in Julia’s case. This plea of necessity, is well answered by Mr. Spalding for the plaintiff, which answer is, that though it be true that the officer was bound to remain where he did, during all the time he was there, yet no authority of law or the government compelled him to keep the plaintiff there as a slave.”

Justice McGirk then provided a hypothetical that amounted to a reductio ad absurdum:

“[S]hall it be said, that because an officer of the army owns slaves in Virginia, that when as officer and soldier, he is required to take command of a post in the non-slave holding States or territories, he thereby has a right to take with him as many slaves, as will suit his interests and convenience? It surely cannot be the law; if this be true, then it is also true that the convenience or supposed convenience of the officer repeals as to him and others who have the same character, the ordinance and the act of 1821 admitting Missouri into the Union, and also the prohibitions of the several laws and constitutions of the non-slaveholding states.”

He also dismissed the argument that there should be no forfeiture because Stockton’s slaveownership (if that’s a word!) was de minimis:

“But it is said . . . that the plaintiff was only employed as a body servant, to induce the belief of the fact that the service she performed was necessary, or perhaps to establish the fact that he officer has a right to a family servant. We are yet to learn that the law, which gives to officers servants of a certain sort, authorize such officers to hold slaves in lieu of such servants, and in places forbidden by the ordinance.”

The bottom line, according to Justice McGirk, was that Stockton held Rachael as a slave in free territory as “his voluntary act, done without any other reason than that of convenience,” not necessity. As a result, both Stockton “and those claiming under him must be holden to abide the consquences of introducing slavery both in Missouri territory and Michigan, contrary to law. The judgment of the Circuit Court is reversed – the cause is remanded for a new trial.”

More Climate Change Links

Melanie Phillips has a recent post that conveniently links to and discusses several articles casting doubt on the global warming orthodoxy and point out hanky-panky involving the Intergovernmental Panel on Climate Change (IPCC) summary: "Dirty Work at the Green Crossroads."

Climate Change

A nice article in the Times of London, "An Experiment that Hints We Are Wrong on Climate Change."

I remember shaking my head in wonder when I first read the story of the capitulation of Soviet science to the quackery of Trofim Lysenko. How could scientists allow politics to trump science? Well, now we have a taste. The current situation is somewhat different. Soviet scientists were quite understandably cowed by Stalinist terror. Today's scientists have only the excuse of political correctness.

Thanks to Captain's Quarters for the link.

Did Ulysses Grant Own Julia's Slaves?

Over at the American Presidents Blog, Jennie W. posted an entry stating that Julia Dent Grant, the wife of Ulysses Grant, owned several slaves, who were not freed until 1865 when Missouri abolished slavery. The post asserted that Ulysses, as Julia’s husband, was the true owner of and had the right to free the slaves, and had failed to do so.

As an admirer of General and President Grant, I decided to look into this. It didn’t sound right – or at least I hoped so.

There are, indeed, a number of sites that state that Julia owned slaves. For example, the official website for the Ulysses S. Grant National Historic Site at White Haven (the Missouri plantation owned by Julia’s father, “Colonel” Frederick Dent) states that “[d]uring Grant’s management of the farm he worked side by side with Dan, one of the slaves given to Julia at birth,” presumably by her father.

However, it turns out that there is reason to question this. Julia’s father, Colonel Dent, lived until 1873. It certainly seemed possible that, if Julia acquired her slaves as a “gift” from her father, that gift amounted to an informal loan of or right to use the slaves, rather than a formal transfer of title. Question 5.8 of a “Civil War FAQ” points up precisely this possibility. Lest you think I’m hiding anything, here is the entire paragraph relating to Grant (most of which concerns the single slave that Grant owned and freed in 1859):

“2. In 1858, while attempting to make a go in civilian life as a farmer near St. Louis, MO, U.S. Grant acquired a slave named William Jones, probably from his father-in-law, although the record is not entirely clear. In March, 1859, Grant gave Jones his freedom despite the fact that Grant desperately needed the money he might have recovered by selling him. Grant's wife, Julia, had the use of four slaves as personal servants; the record is unclear as to who held legal title to them (it could well have been Julia's father). In her own memoirs, Julia states that these were freed at the time of the Emancipation Proclamation.

"Sources: _Captain Sam Grant_, by Lloyd Lewis; _The Personal Memoirs of Julia Dent Grant_, by Julia Grant; _Let Us Have Peace, etc._ by Brooks D. Simpson.”

(Emphasis added).

I do not vouch for the FAQ and cannot tell you for sure whether Julia really owned -- i.e., held title to -- her slaves. I can tell you that the issue appears to remain an open one.

In the picture above, the front row consists of Ulysses, Julia and Colonel Dent.

Rachael v. Walker II: The Arguments

As you may remember, in Julia v. McKinney, 3 Mo. 270, 1833 WL 3254 (1833), the Supreme Court of Missouri had drawn a distinction between traveling through and residence in a territory or state. Although I did go over the point in detail, the court did note that traveling through did not require continual movement, but rather conduct consistent with traveling as generally understood. This might vary with circumstances, weather and the like. In winter or during floods, a traveler might well halt for periods of time, for example. The court in that case stated:

“How long the character of emigrant or traveler through the State may last, cannot by any general rule be determined; but it seems that reason does require it should last so long as might be necessary, according to the common modes of traveling, to accomplish a transit through the State. If any accident should happen to the emigrant which in ordinary cases would make it reasonable and prudent for him to suspend his journey for a short time, we think he might do so without incurring a forfeiture, if he resumed his journey as soon as he safely could. Something more than the mere convenience or ease of the emigrant ought to entervene to save him from a forfeiture. Something of the nature of necessity should exist before he would or ought to be exempt from the forfeiture.”

(Emphasis added)

Walker’s counsel drew from Julia and other cases an exception to residence based on “necessity.” He argued that the court had recognized that residence did not attach when a slaveowner was required to remain in one place for a time due to necessity or compulsion. He then asserted that Stockton’s presence in free territory was compelled because of his service in the United States Army. Justice Matthias McGirk, speaking for the unanimous court, paraphrased Walker’s argument as follows:

“[Counsel for Walker] contends . . . that by all the decisions made by this court exceptions are allowed to exist, which exceptions to the positive words of the [Northwest] ordinance [by which slaves would otherwise be freed], must be raised of necessity. One case allowed by the court is this, that if a person be passing through the country with slave property, which he has a right to do, if high waters detain him with his slave, and he resumes his journey as soon as may be the time necessarily staid with his slave, shall not be considered as a residence, so as to work a loss of his slave.”

Counsel then applied the principle to the present case:

“He then contends that in this case, Stockton was a soldier of the American army, and as such, was bound to be and remain whersoever his superior officer should command him to be; that the slave was only with him as a servant, and not as a slave, and being obliged by law to be and remain in a country where slavery is forbidden, he had a right to take this to have his servant there also.”

Rachael’s response was short and sweet:

“Mr. Spalding answers this argument, by saying although this officer was bound by law and authority, to be and remain in a country where slavery is not allowed, yet no law nor public authority required nor compelled him to [bring a] person there as a slave nor as a servant.”

Rachael v. Walker: An Officer and A Slave

Rachael (not a misspelling), the plaintiff in Rachael v. Walker, 4 Mo. 350, 1836 WL 2300 (1836), was a slave in Missouri. In 1830, an agent purchased Rachael for J.B.W. Stockton and in the fall of that year took her to Fort Snelling, “on the west side of the Mississippi river, and north of the State of Missouri, and in the territory of the United States,” in what is now the State of Minnesota. Stockton “was an officer of the United States army attached to the troops” at Fort Snelling. He had been posted there for about two years (i.e., since about 1828). He apparently purchased Rachael because he had just married.

Stockton “held [Rachael] as a slave [there] until the fall of the year 1831” – about a year. At that point, he was transferred to Prairie du Chien, “in the Michigan territory and east of the Mississippi." Stockton took “Rachael with him as his slave, at which place he held her in slavery, till about the spring of the year 1834, when he took her to St. Louis and sold her.”

At both Fort Snelling and Prairie du Chien, “Rachael was only employed in attendance on Stockton and his family.” Although Stockton was an officer in the army, “Rachael was never employed otherwise than as a private servant in immediate attendance on Stockton and family.”

Rachael filed a suit to obtain her freedom in Missouri state circuit court. The defendant, Walker, argued that Stockton’s presence at Fort Snelling and Prairie du Chien should not be counted as residence there because he had been in the army. The Circuit Court judge agreed and

“instructed the jury that the law was, that if said Stockton was an officer of the army while he held the plaintiff in slavery, stationed at Fort Snelling and Fort Crawford by the property authority, and if he employed the plaintiff during that time only in personal attendance on himself and family, that such residence of the plaintiff as has been proved, does not entitle her to freedom.”

The jury returned a verdict in favor of Walker and against Rachael. Rachael appealed to the Supreme Court of Missouri.

Nat v. Ruddle II: The Instruction Was Reasonable

As I explained in my first post on this case, the trial judge had instructed the jury that, “if the defendant [Ruddle] took the plaintiff [Nat] into Illinois and used him there as a slave or permitted him to be used as such, then they should find for the plaintiff.” Justice George Tompkins, writing for a unanimous court, found this instruction sufficient. He began by explaining the general rule established by the court’s earlier cases:

“It has often been decided in this court, that to entitle a slave to recover in an action of this kind, the slave must abide in the State of Illinois, by and with the consent, express or implied, of his owner, long enough to induce the jury to believe that the owner intended to make that country the place of the slave’s residence.”

Justice Tompkins believed that the trial court’s instruction was “even broader and more favorable to the plaintiff than the rule established by this Court” because “according to this instruction, the jury were unlimited as to time or the intention of the defendant.” In other words, the instruction downplayed the residence requirement and potentially allowed the jury to rule in Nat’s favor even if he were brought to Illinois only on a temporary basis.

The Supreme Court seemed to think that the failure of the trial court to give the instruction requested by Nat’s counsel was harmless error:

“If the visits of the defendant [sic, should be “plaintiff”] had been so frequent and his stay so long as to induce a belief that his owner intended them as a pretext for keeping the plaintiff in Illinois in violation of the constitution, the jury were authorized by the instruction given by the Circuit Court, to consider both the visits, and the labor performed, as well as the hiring proved, to go to establish the fact that the slave was taken to Illinois by his master, and there used as a slave.”

In short, the instruction as a whole was reasonable, and Nat had a fair trial:

“The jury had before them the whole evidence, with a correct and liberal direction from the court, and the state of the evidence is not such as to induce this court to disturb the judgment of the Circuit Court.”

Nat lost. A court struggling to avoid this result might have seen unfairness in the trial court’s refusal to give the additional instruction, because the instruction given suggested that Nat had to show that his owner had taken him to Illinois. On the other hand, nothing in the decision suggests that the Supreme Court of Illinois was backing away from its commitment to apply Illinois law, and to do so in relatively generous fashion, if not literally. One suspects that the judges thought that there was a reasonable likelihood that Nat had gone to Illinois without permission, in which case heroic efforts to grant him a new trial were inappropriate.

Nat v. Ruddle I: The Facts

The crucial facts in Nat v. Ruddle, 3 Mo. 400, 1834 WL 2555 (1834), were hotly contested. The parties apparently agreed that Nat was originally Ruddle’s slave in Missouri until 1829; and that in 1829 Ruddle moved from Missouri to Illinois and “left the plaintiff Nat hired out in Missouri.” But there, the stories diverged.

Ruddle claimed that Nat “ran away from Missouri and went to Illinois, and was frequently at his master’s house on visits to the family. By both plaintiff and defendant, evidence was given that plaintiff hired himself out in Illinois; but there was no evidence that Ruddle received the hire.”

Nat, in contrast, contended that “he was employed on the farm of the defendant in the State of Illinois, to which place he was brought from Missouri, and after staying some time in Illinois he was sent back to Missouri.” In the alternative, Nat seems to have suggested a more subtle scenario. In this version, Nat left Missouri without permission and went to Ruddle’s farm in Illinois “on a visit.” When Ruddle discovered him there, Ruddle did not object and instead put him to work and hired him out.

Nat filed his suit for freedom in the Circuit Court of St. Louis County. The trial court charged the jury that they should find in Nat’s favor if “they believe that the defendant took the plaintiff into the State of Illinois and used him as a slave there or permitted him to be used as such.” On the other hand, if they believed Ruddle’s story, they should find for him. “[I]f the plaintiff went into that State [Illinois] on a mere voluntary visit, or ran away from Missouri to that State, he would not thereby be entitled to his freedom.”

Neither of the instructions precisely addressed the alternate factual scenario advance by Nat. Nat’s lawyer asked the judge to instruct the jury that, if they believed this account, they should rule for Nat:

“The counsel of the plaintiff then asked the court instruct the jury that if they found that the plaintiff went on a visit to the master’s house and the master made no objection to such visit to Illinois, but employed him in planting corn and harvesting in Illinois and permitted the plaintiff to hire himself to labor in that State, they ought to find for the plaintiff.”

The trial judge declined to give this instruction. The jury returned a verdict in favor of Ruddle. Nat appealed to the Supreme Court of Missouri.

Why Summary Judgment Is Unconstitutional: A Link

Here is a link to the article by Suja A. Thomas that I mentioned yesterday.

Over at Prawsblawg, a commenter complains that the article represents everything that's wrong with contemporary legal scholarship, particularly as practiced in law journals. It's ridiculously abstract, impractical, etc.

I'd have to disagree. It certainly sounds like the article is all of those things, but who cares? It just sounds interesting. I suppose I'm looking at the article not as a piece of advocacy but as a historical enquiry into the relationship between judges and juries in the late Eighteenth Century, much as Professor Nelson's book is (in part). Even if it is written as an advocacy piece, the advocacy is presumably based upon a foundation of analysis of the historical roles of judges, juries and possibly appellate courts in the Colonies.

I probably won't get around to reading the article until the weekend -- I'll let you know what I think.

God, I Love the Post!

Who comes up with these things?

Descent into the Maelstrom

My post, immediately below, about David Currie's latest article, "The Civil War Congress," caused me to look back at some entries I posted at Civil War Talk about Professor Currie's most recent book, The Constitution in Congress: Descent into the Maelstrom, 1829-1861. They hold up pretty well, if I do say so myself. Particularly because I saw a review of Descent into the Maelstrom at H-Net that was fairly mixed, I though I would re-post (with slight revisions) my thoughts about the book here.

David P. Currie, The Constitution in Congress: Descent into the Maelstrom, 1829-1861 (University of Chicago Press 2006), 322 pp. (256 pp. of text, plus appendices and index).

David P. Currie, a professor at the University of Chicago Law School, has been writing a series of books, entitled The Constitution in Congress, in which he has reviewed, generally in chronological order, the constitutional issues that have arisen in and been debated by Congress. In this latest volume, the fourth in the series, subtitled Descent into the Maelstrom, 1829-1861, Professor Currie focuses, for the most part, on the issues and debates in the pre-War period that are associated with the coming of the War. (The previous volume, subtitled Democrats and Whigs, 1829-1861, focused on other issues during the same period.)

The result is a fascinating survey of the constitutional issues raised in Congress on all manner of subjects during the thirty years leading up to the War. In treating each, Professor Currie’s approach is typically the same. After a brief introduction to the relevant background history (say, the events surrounding the annexation of Texas), Professor Currie zooms in on the precise events, substantive and procedural, that give rise to the constitutional issues and describes the positions taken and arguments made in Congress. Then – and this is what really makes the book enjoyable – Professor Currie generally steps back, evaluates the arguments made (and sometimes those not made but that should have been) and gives his own views. If you want an intelligent evaluation of the constitutional issues surrounding the way in which President Tyler went about annexing Texas, or whether the federal government could have abolished slavery in the District of Columbia, or whether secession was constitutional, you’ll find it here.

The book contains serious analysis, but this is no dour academic tome. To the contrary, Professor Currie’s crisp writing keeps things from bogging down and is laced with humorous asides that vividly convey both the author’s personality and why he finds the issues fascinating and still relevant. Professor Currie clearly had a lot of fun writing the book, and his enthusiasm comes through. For example, after summarizing President Buchanan’s position that secession was unconstitutional but that there was nothing he could do about it, Professor Currie comments:

“Shall I fly at him? Shall I tear him limb from limb – this wimp, this Quisling who thinks secession unlawful but Congress powerless to do anything about it? Peace, peace, old heart; not yet. There will be time for such a word. You have come to hear the members of Congress, not me; let us attend to them, and in the process I shall do a little strutting and fretting of my own.”

There are several caveats. First, the book is not a substitute for a general history of events leading up to the War. For that, David Potter’s magisterial The Impending Crisis is probably your best bet. Professor Currie focuses, as advertised, on those events that gave rise to constitutional disputes and arguments in Congress during the pre-War period. Nor is the book a full exploration of all constitutional events during the period. The book concerns Congress, not the Supreme Court, and so, for example, Dred Scott is not directly analyzed, although Professor Currie does discuss some of the issues in that case, because they also arose in Congressional debates (e.g., whether the Fifth Amendment barred Congress from forbidding slavery in the territories). Finally, because the book is a survey of a 30-year period, it does not purport to contain the final word on every issue. Professor Currie’s discussions of the arguments are uniformly intelligent, and he often is very clear as to where he comes out on them, but in the best professorly-socratic tradition, he sometimes suggests that issue-spotting is easier than issue-resolution.

On the other hand, the survey-nature of the book and Professor Currie’s clear writing style make the book potentially accessible to non-lawyers. A reader who has a working understanding of the period and who is interested, say, in the arguments back and forth about the Gag Rule, or President Polk’s use of his war powers, or slavery in the territories may well enjoy it. At $55, the book is a substantial investment, so potential readers who are not sure will probably want to see whether they can convince the local library to stock it.

For the right readers, this book is highly recommended. Non-lawyers should consider the following pros and cons:

First, Professor Currie takes his legal controversies as he finds them; the book is not solely devoted to issues that Civil War buffs may find of interest, such as slavery in the territories, secession and the like. A chunk of the book, for example, discusses issues related to Texas: Did President Tyler properly propose that Texas be annexed by joint resolution of Congress rather than via treaty? Did President Polk act constitutionally when he sent Zachary Taylor into the disputed area adjoining the Rio Grande with the hope and expectation that it would provoke war? In short, readers may find themselves interested in some topics and not in others.

Second, the good Professor has some legal insights that I find fascinating but that non-lawyers may conclude are ultimately trivial or irrelevant. For example, I had always assumed that the South's position in the "Gag Rule" controversy of 1836-44 -- demanding that Congress refuse to accept all petitions relating to slavery -- was blatantly unconstitutional. Professor Currie convincingly argues the contrary: Congressional refusal to accept petitions does not infringe the First Amendment right to petition. But that does not change the fact (as Professor Currie himself points out) that the South's position was a political and public-relations disaster that did tremendous damage to its cause. In this instance, the technical niceties may be beside the point.

For those who have not read previous volumes in the series, you can certainly read the books out of order. It depends on the period and issues you're interested in. That's exactly what I have done. "Descent into the Maelstrom" was the first volume I read. I've now gone back and read the first volume. The second and third volumes still await.

The Civil War Congress

David P. Currie has a new article out in the University of Chicago Law Journal, available online, about The Civil War Congress!

For those of you who don't know his work, Professor Currie is the author of, among many other things, an ongoing series of books about The Constitution in Congress, covering (so far) the Federalist Period to 1861. Here's a link to the most recent volume, Descent Into the Maelstrom, 1829-1861, which I have discussed here. He's also authored an article, also available online, about The Confederate Constitution in Congress. All are highly recommended.

Thanks to Will Baude at Crescat Sententia for the tip.

Is Summary Judgment Is Unconstitutional?

This looks like a great article:

Why Summary Judgment is Unconstitutional
by Suja A. Thomas
93 Va. L. Rev. 0 (2007)

Summary judgment is cited as a significant reason for the dramatic decline in the number of jury trials in civil cases in federal court. Judges extensively use the device to clear the federal docket of cases deemed meritless. Recent scholarship even has called for the mandatory use of summary judgment prior to settlement. While other scholars question the use of summary judgment in certain types of cases (e.g., civil rights), all scholars and judges assume away a critical question: whether summary judgment is constitutional. The conventional wisdom is that the Supreme Court settled the issue a century ago in Fidelity & Deposit Company v. United States. But a review of that case reveals that the conventional wisdom is wrong: the constitutionality of summary judgment has never been resolved by the Supreme Court. This Article is the first to examine the question and takes the seemingly heretical position that summary judgment is unconstitutional. The question is governed by the Seventh Amendment which provides that [i]n Suits at common law, . . . the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. The Supreme Court has held that common law in the Seventh Amendment refers to the English common law in 1791. This Article demonstrates that no procedure similar to summary judgment existed under the English common law and also reveals that summary judgment violates the core principles of the English common law. The Article concludes that despite the perceived necessity and uniform acceptance of the device, summary judgment is unconstitutional. The Article also responds to likely objections and explores the far-ranging ramifications of this conclusion.

My only familiarity with the historical backdrop is via William E. Nelson's wonderful book The Americanization of the Common Law. I have mentioned the book before. That book does indeed indicate that, in Massachusetts at least, circa 1791 every case went to a jury -- indeed, there was little differentiation between law and facts; as a practical matter, the jury decided both.

But that does not mean I'm convinced that summary judgment is unconstitutional. The core assumption underlying summary judgment is that there are no facts in dispute. Off the top of my head, even assuming the founders did not foresee the summary judgment device -- and I assume they did not -- it is hard to see how a judge is "reexamining" a "fact" by granting summary judgment. That said, I am eager to read the article to understand the argument.

A final observation or two. Never, never, never, whatever the merits, will a Court of Appeals or the Supremes hold summary judgment unconstitutional. Again, I'm eager to read the article, but if I'm sure of anything it's that elimination of summary judgment would be both grossly unfair to litigants and a disaster for the system and the judges who administer it. I've been involved in commercial litigation for over twenty-five years, and it would be a travesty if there were no way to dispose of meritless cases before trial.

Hat tip to Prawfsblawg for pointing out the article.

Julia v. McKinney IV: The Dissent

The opinion of the dissenter, Justice Robert Wash, illustrates just how easy it would have been for Justice McGirk to write a decision affirming the verdict and judgment against Julia. Justice Wash made no radical arguments; he did not argue that the court’s earlier cases should be overruled.

In a nutshell, Justice Wash simply asserted that intent was an essential element of residence. Particularly since the determination of residence was a fact-intensive one, the jury did not act unreasonably in concluding that Mrs. Carrington had not intended Julia to establish residence in Illinois and that Julia did not establish residence there. Here is a taste:

“A bare removal into the State can form no ground on which to set up the claim; especially when it is shown that the removal is not made with a view to residence. The intention of the owner as previously declared, is the only evidence that can exist in such a case. To hold, then, that it matters not whether the owner intends to make Illinois the residence of his slave or not, is to exclude (as it appears to me) the only evidence that can exist where the claim is founded on a bare removal to the State. The intention with which a thing is done gives color and character to almost every trans[ac]tion.”

* * *

“Thus it seems to me that the facts and circumstances in every case are to be weighed with the intention of the parties acting therein and to be charged therefore. The introduction of slavery, or the attempt to introduce it, is regarded in some sort as a criminal act, and is punished by a forfeiture of the property introduced. We must then look to the intention of the party introducing the slave, to determine the guilt and see if the spirit of the Constitution has been violated, since it is clear its letter cannot be enforced.”

This is not to say that the dissent is entirely honest. Indeed, I believe it unfairly distorts and mischaracterizes the majority. Justice McGirk did not say, for example, that an expression of intent was irrelevant. He said only that an expression of intent did not control when it was belied by the facts, which showed that Julia had resided in Illinois for that crucial month.

Julia v. McKinney III: "Yet slavery is introduced"

Justice McGirk then focused more particularly on the jury instruction to which Julia had objected. As I explained in my first post on the case, the trial court instructed “that if the jury believe . . . that . . . Julia . . . was taken into the State of Illinois by her owner without any intention on the part of such owner to make that State the residence of Julia, that the plaintiff is not entitled to recover.” (Emphasis added)

Justice McGirk might have found the instruction acceptable without too much strain. His explanation of the term residence, described in the last post, contained a strong element of intent (going into a place “with an avowed view to make that State her home”). If Mrs. Carrington’s intent established her residence in Illinois, arguably her intent could likewise establish Julia’s non-residence there. He rejected this reasoning, however.

He began by identifying the issue. “[T]he instruction assumes that if the owner did not intend to make Illinois the residence of the slave, then there is no violation of the Constitution.” But, rather than agreeing that intention alone determined residence, he noted that residence consisted of a combination of intention and act – and act was the more important element. To explain himself, he asked a rhetorical question: “Is it true that if a person says he does not intend to do an act and yet does it, that the act is not done?”

Mrs. Carrington’s actions, he held, established Julia’s residence in Illinois. Furthermore, it was irrelevant that the residence was only for one month; even temporary residence was sufficient to violate the Illinois constitution:

“[I]n this case the evidence is, that the owner did intend and in fact did introduce slavery in Illinois, but declared that she did not intend to continue it for any length of time; but that she would take the slave to Missouri and there hire her out. But suppose the owner did not intend to make Illinois the place of the slave’s residence permanently, but only for one month; yet slavery is introduced and continued for the mere convenience of the owner without any circumstances which raise a just or even a reasonable exception in her favor.”

Similarly, Justice McGirk found no de minimis exception in the fact that Mrs. Carrington had hired Julia out in Illinois for only one or two days. “What difference can it make if the hiring had been for one hundred days? We can see none, except in the degree or quantity of time.”

The jury instructions were defective, and a new trial was required:

“The reason assigned for the new trial are, that the verdict is against law and evidence. The evidence is sufficient to bring the case within the operation of the Constitution. The judgment is reversed, the cause is remanded for a new trial.”

Julia v. McKinney II: The Right to Travel

Once again, Chief Justice Matthias McGirk wrote the decision for the majority (the court divided 2-1, with Justice Wash dissenting). Justice McGirk began his analysis by examining the Illinois constitutional provision upon which Julia relied. As I explained in my first post on the case, that provision declared that slavery would not be introduced into the state and concluded “by saying any violation of this article shall effect the emancipation of such person.” McKinney’s attorney apparently advanced species of reductio ad absurdum argument: if the Illinois constitution were literally construed, “no one can travel through that State with his slaves without emancipating them.”

Justice Matthias McGirk agreed “that a literal construction would lead directly to this result.” He denied, however, that the Illinois constitution should be read so mechanically. He advanced two reasons. First, looking to “the end and object” of the provision, he concluded that its purpose was not to prevent slaveowners “from passing through Illinois with their slave property,” but rather “to prevent the relation of master and slave from existing in that State by an inhabitant and resident thereof.”

Second, the conclusion about the section’s purpose and intent was buttressed by the fact that a literal reading would violate what we would call today the right to travel, which Justice McGirk derived from the Privileges and Immunities Clause:

“[A]ll persons who are citizens of any of the States have a right by the constitution of the United States to pass through Illinois with any sort of property that they may own in the State where they migrate from. The 2d section of the 4th article of the Constitution of the United States says that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States. We are of opinion that it is the undoubted right of every citizen of the United States to pass freely through every other State with his property of every description, including negro slaves, without being in any way subject to forfeit his property for having done so, provided he does not subject his property by a residence to the action of the laws of the State in which he may so reside.”

Justice McGirk thus drew a sharp line between “emigrants or mere travelers” and residents. The difference between the two was fact-sensitive but ultimately clear. A traveler was on a journey. Mrs. Carrington was no traveler:

“In the case before us the owner of the slave was not an emigrant, but went into Illinois with an avowed view to make that State her home. She took up her residence there, with her slave in her possession, and kept the slave there for upwards of one month, and treated the slave in all respects as slaves are treated in States where slavery is allowed. These acts of the owner surely amounted to the introduction of slavery in Illinois.”

Julia v. McKinney I: An Owner's Plan to Thwart Freedom

In Julia v. McKinney, 3 Mo. 270, 1833 WL 3254 (1833), the Supreme Court of Missouri once again confronted the issue whether it should declare a slave free based upon the laws of a free territory or state. The court reaffirmed its holdings in Winny v. Whitesides (1824), Merry v. Tiffin (1827) and Milly v. Smith (1829), in which it held that a slave who resided in a free territory or state should be declared free based upon foreign law. Julia is particularly noteworthy because the court pointedly rejected an opportunity to limit its earlier decisions in a way that would have been legally plausible and highly advantageous to slaveholders.

Lucinda Carrington, the owner of a slave named Julia, lived in Kentucky. When Mrs. Carrington announced in 1829 that she intended to move to Illinois with Julia, a neighbor warned her “that if she took [Julia] there she would be free.” The Illinois Constitution contained a provision “which declares that neither slavery nor involuntary servitude shall hereafter be introduced into this State otherwise than for the punishment of crimes . . . and concludes by saying any violation of this article shall effect the emancipation of such person for his obligation to service.”

Determined nonetheless to move to Illinois, Mrs. Carrington then established a plan to evade the constitutional provision. She arrived in Pike County, Illinois on October 27 or 28, 1829 with Julia and settled herself there. But she asserted that she did not intend to keep Julia in Illinois, but instead to hire her out in Missouri. For a little over a month, until December 1, 1829, Julia stayed with Mrs. Carrington. During that month, Mrs. Carrington “exercise[ed] the ordinary acts of ownership and dominion over [Julia] which are usually exercised by masters over their slaves.” Mrs. Carrington also hired Julia out in Illinois for “about two days.”

On about December 1, 1829, Mrs. Carrington “sent Julia to Louisiana, Missouri, a distance of about thirty miles, and hired her out” there. Julia became sick, and Mrs. Carrington had her return to Pike County, Illinois. When Julia recovered, Mrs. Carrington sent her to St. Louis, where she was sold to S. McKinney.

Julia sued for her freedom in the Circuit Court of St. Louis County, naming Mr. McKinney, her new owner, as the defendant. She contended that Mrs. Carrington and she had resided in Illinois between October 27 or 28 and December 1, 1829. At trial, however, the Circuit Court gave the jury an instruction, unfavorable to Julia, that focused on Mrs. Carrington’s intent, rather than her actions. The trial court instructed the jury that, if it believed that Julia “was taken into the State of Illinois by her owner without any intention on the part of such owner to make that State the residence of Julia, that the plaintiff is not entitled to recover in this action.”

The jury returned a verdict against Julia, and the Circuit Court entered judgment against her. Julia then appealed to the Supreme Court of Missouri.

In the next post, we shall examine how the court analyzed and resolved the issues.

Milly v. Smith II: A Pyrrhic Victory?

Before the Supreme Court of Missouri, counsel for Smith made a concession that is worth quoting in full:

“[I]t is insisted that if Shipman was the legal owner of the slave at the time he brought Milly to Illinois, to reside there permanently with her she became free in virtue of the [Northwest] ordinance. This doctrine is conceded by Smith’s counsel, and it has been so decided in repeated instances by this court.”

In other words, Smith’s attorney apparently recognized that the Court had definitively ruled on the issue at least twice in the past five years, in Winny (1824) and Merry (1827). He presumably concluded that there was no reason to think that the court would change its mind and that he would only impair his credibility by arguing otherwise. He therefore conceded the point and focused his argument on whether Shipman was Milly’s “legal owner.”

As I explained in my first post on the case, Justice McGirk concluded that he was bound by a decision in an earlier case, which held that Shipman had “mortgaged” Milly and had not sold her to Smith; therefore Shipman was Milly’s “legal owner” when he established residence in Illinois with her.

But that did not necessarily end the matter. Milly was “free as to Shipman forever.” But did that mean she was free as to Smith? The Court’s answer was, Not entirely. The general rule was “that all incumbrances subsequently created by the mortgagor [Shipman] are to yield to the mortgagees’ [Smith’s] right to foreclosure and have his money.” Therefore, Milly was free as to Smith for the moment, but her freedom was conditional and subject to his lien:

“[A]s to Smith [Milly] has the same indefinite right to liberty that Shipman had to the possession of her, and until the lien is enforced by some mode known to the law, she ought to enjoy her freedom. . . . Upon the whole matter, I am of the opinion that Milly is free sub modo, and that the judgment of the Circuit Court, ought to be, and is reversed with costs, and such judgment given as the court below ought to have given, which is, that Milly is free.”

Milly v. Smith I: A Mortgaged Slave Sues for Freedom

The facts of Milly v. Smith, 2 Mo. 171, 1829 WL 1771 (1829), are a bit messy. David Shipman and the defendant, Smith (his first name is not stated in the opinion), were white men residing in Shelby County, Kentucky. Shipman owed money to a bank and other third parties, and Smith had guaranteed those obligations. Shipman owned a slave named Milly.

In October 1826, the two men entered into a transaction, in Shelby County, Kentucky, by which Shipman gave security to Smith in case Smith was obligated to pay Shipman’s debts. That security was Milly. There was a dispute as to whether Shipman had sold Milly to Smith, subject to (in effect) a right to redeem her if Shipman was able to pay off his debts; or whether Shipman had merely mortgaged Millie to Smith, giving Smith the right to take possession of her if he was forced to pay Shipman’s debts. In an earlier case, a court had resolved that dispute in Shipman’s favor: Shipman, not Smith, remained Milly’s owner.

Having mortgaged Milly to Smith, Shipman secretly fled with Milly and several other slaves to Jefferson County, Indiana “with intent to withdraw himself and property from Smith and other creditors.” While in Jefferson County, Shipman then proceeded to defraud Smith and his other creditors by “execut[ing] a deed of emancipation in due form of law to the said Milly” and another mortgaged slave.

Shipman then took Milly to Peoria County, Illinois, where he “hired a farm” and established residence. He resided there from November 1826 until May 1827.

Meanwhile, after Shipman had emancipated Milly in Indiana, Smith was forced to pay several of Shipman’s debts, amounting to $1,634. Smith then tracked the fleeing Shipman down. In May 1827, Smith “came there [to Shipman’s farm in Peoria County, Illinois] and took Milly secretly and against her consent, and the consent of Shipman, and brought her to St. Louis, claiming her as his slave, and holding her as his slave.”

Milly then commenced this suit for freedom in Missouri state court. In the suit, Milly seems not to have relied upon the emancipation deed that Shipman executed. Perhaps Milly’s lawyer was concerned that the court would not give effect to the emancipation deed because it was clearly a fraud on Shipman’s creditors. For that reason or some other, Milly argued instead that she should be declared free “under the ordinance of Congress of 1787, for the government of the Northwestern Territory.

The trial court ruled against Milly, who then appealed to the Supreme Court of Missouri. In his majority opinion (the court divided 2-1), Justice McGirk framed the issue as follows:

“Upon this state of facts and law, the question submitted to us is, whether Milly is by law entitled to her freedom? When we only look to the facts in this case, we see on one side a man largely indebted, hiding his property, and in fact destroying it, to prevent his creditors from reaping any benefit there from, and in this case, Shipman has been base enough to emancipate the slave to injure and ruin his security. We feel disposed to view him in a light but little below that of a felon. But there are two sides to every question; here is also the case of a person claiming the benefit of the ordinance of Congress of 1787, for the government of the Northwestern Territory, which declares, that in that country there shall be neither slavery nor involuntary servitude.”