Lemmon v. People XIII: What If . . .

Earlier this year, I published a number of posts concerning the New York Court of Appeals decision in Lemmon v. People (1860), in which the court held that even the transitory presence of a slave in the State of New York made the slave free. (You can find those posts by clicking on the "Lemmon v. People" link at the right.) At the time, Republicans expressed concern that the Supreme Court of the United States might use the case, or another like it, as a vehicle to extend the Dred Scott decision by holding that free states could not constitutionally bar or free slaves brought into those states by their masters.

The argument in Lemmon was held before the New York Court of Appeals on January 24, 1860. The next day, the New York Times reported on the arguments, in detail. Those arguments included the slaveowner's (really Virginia's) arguments that New York laws purporting to make free slaves who entered the state even on a transitory basis violated the United States Constitution.

Abraham Lincoln delivered his Cooper Union speech just one month later, on February 27, 1860. Although he did not specifically mention Lemmon, he may be have been referring to the case in the following passage describing the threatened "overthrow of our Free-State Constitutions:"

The question recurs, what will satisfy them [the southern people]? Simply this: We must not only let them alone, but we must somehow, convince them that we do let them alone. This, we know by experience, is no easy task. We have been so trying to convince them from the very beginning of our organization, but with no success. In all our platforms and speeches we have constantly protested our purpose to let them alone; but this has had no tendency to convince them. Alike unavailing to convince them, is the fact that they have never detected a man of us in any attempt to disturb them.

These natural, and apparently adequate means all failing, what will convince them? This, and this only: cease to call slavery wrong, and join them in calling it right. And this must be done thoroughly - done in acts as well as in words. Silence will not be tolerated - we must place ourselves avowedly with them. Senator Douglas' new sedition law must be enacted and enforced, suppressing all declarations that slavery is wrong, whether made in politics, in presses, in pulpits, or in private. We must arrest and return their fugitive slaves with greedy pleasure. We must pull down our Free State constitutions. The whole atmosphere must be disinfected from all taint of opposition to slavery, before they will cease to believe that all their troubles proceed from us.

I am quite aware they do not state their case precisely in this way. Most of them would probably say to us, "Let us alone, do nothing to us, and say what you please about slavery." But we do let them alone - have never disturbed them - so that, after all, it is what we say, which dissatisfies them. They will continue to accuse us of doing, until we cease saying.

I am also aware they have not, as yet, in terms, demanded the overthrow of our Free-State Constitutions. Yet those Constitutions declare the wrong of slavery, with more solemn emphasis, than do all other sayings against it; and when all these other sayings shall have been silenced, the overthrow of these Constitutions will be demanded, and nothing be left to resist the demand. It is nothing to the contrary, that they do not demand the whole of this just now. Demanding what they do, and for the reason they do, they can voluntarily stop nowhere short of this consummation. Holding, as they do, that slavery is morally right, and socially elevating, they cannot cease to demand a full national recognition of it, as a legal right, and a social blessing.

(Emphasis added)

As it turned out, the United States Supreme Court did not have an opportunity to consider whether to reverse Lemmon. Even so, it's interesting to consider whether it would have, or at least might have, done so.

The biggest problem in making such a hypothetical prediction lies in the Supreme Court itself. Chief Justice Taney's decision in Dred Scott was profoundly dishonest from an intellectual standpoint. Taney showed himself prepared to distort history and advance ludicrous arguments in order to reach a desired result.

It's therefore necessary, I think, to conduct two inquiries, rather than one. First, what would an intellectually honest Supreme Court have done with Lemmon? Second, assuming an intense desire to reach a particular result, could the Supreme Court have stretched to reach that result and, if so, how might it have done so?

In order to avoid too long a post, I will simply set the stage. In order to reverse Lemmon, the Supreme Court would have had to clear several huge hurdles. The largest was that the states retained all sovereign powers except to the extent that they had ceded particular powers to the federal government.

It was going to be particularly difficult to argue that states had ceded their powers over the status of slavery within their borders. In Prigg v. Pennsylvania (1842), Justice Story had emphasized that regulation of the status of slavery was clearly a state function. It was precisely for this reason, he argued, that the Constitution included the Fugitive Slave Clause. But for the existence of that clause, a free state could declare runaway slaves free, leaving their owners and the slave states without remedy:

By the general law of nations, no nation is bound to recognise the state of slavery, as to foreign slaves found within its territorial dominions, when it is in opposition to its own policy and institutions, in favor of the subjects of other nations where slavery is recognised. If it does it, it is as a matter of comity, and not as a matter of international right. The state of slavery is deemed to be a mere municipal regulation, founded upon and limited to the range of the territorial laws. This was fully recognised in Somerset's Case, . . . decided before the American revolution. It is manifest, from this consideration, that if the constitution had not contained this clause [the Fugitive Slave Clause], every non-slave-holding state in the Union would have been at liberty to have declared free all runaway slaves coming within its limits, and to have given them entire immunity and protection against the claims of their masters; a course which would have created the most bitter animosities, and engendered perpetual strife between the different states. The clause was, therefore, of the last importance to the safety and security of the southern states, and could not have been surrendered by them, without endangering their whole property in slaves. The clause was accordingly adopted into the constitution, by the unanimous consent of the framers of it; a proof at once of its intrinsic and practical necessity.