Smith v. Smith II: "We might consider the law as settled . . ."

The trial judge of the Parish Court, for the Parish and City of New Orleans, clearly disliked the state of slave freedom law in Louisiana. In particular, he was unhappy with the Supreme Court of Louisiana's ruling in Marie Louise v. Marot (1836), in which the court had held that "there is no slavery permitted in France; that, as soon as a slave lands on French soild, he is free by the mere fact." (I have previously posted on Marie Louise v. Marot. To read those post, click on the label at the right.)

In effect, the Parish Court judge sought to persuade the Supreme Court to change its mind:

The judge of the Parish Court has admitted, that if the decision of this court, in the case of Marie Louise, be correct, it affords a legitimate rule by which the present case is to be determined; but he contends that a single decision of this court does not prevent the reexamination of the principle recognized when it comes up a second time, and is presented to the consideration of the court.

The Supreme Court archly noted that Marie Louise was "not the first [case] in which" it had "been called upon to revise the judgment of an inferior court" on the issue of slave freedom. To begin with, "[a]bout fifteen years ago, the court of the third judicial district [had] recognize[d] the right to freedom of a slave, carried from Kentucky into the state of Ohio by her former owner," and the Louisiana Supreme Court affirmed. Even in that case "[t]he question was not res nova in the jurisprudence of these states; the plaintiff [slave] relied on a decision of the Court of Appeals of the state of Kentucky, which fully supported her claim."

Ten years later, the Supreme Court of Louisiana reaffirmed its decision. Thus, Marie Louise was the third, not the first pronouncement by the Supreme Court on the issue. Even so, the Supreme Court said, it was willing to consider the issue once more. Read the following passage aloud, using a fake French accent and dripping with sarcasm a la Monty Python in "The Holy Grail:"

We agree with our learned brother in the Parish Court, that "more than one decision of the supreme judicial tribunal is required to settle the jurisprudence on any given point or question of law;" and accordingly, as there has been three decisions of this court on the question on which he differs from us, we might consider the law as settled by these repeated decisions, in which all the members of the court concurred, and which were in accordance with three judgments of the District Courts; nevertheless, we have attended to the new considerations which have been submitted to us.

In the next post, I'll review the "new considerations" that were "submitted to" the Supreme Court of Louisiana, and that court's responses.

Smith v. Smith I: "More than one decision is required . . ."

The Supreme Court of Louisiana decided Marie Louise v. Marot, the slave freedom case I discussed a few posts ago, in 1836. Three years later, the court confronted another, similar situation in Smith v. Smith, 13 La. 441, 1839 WL 1076 (1839).

Priscilla Smith was the slave for life of a Mrs. Smith (the opinion does not mention the latter’s first name). In the spring of 1835, Mrs. Smith “went to France, taking Priscilla with her as her servant.” Priscilla was supposed to “stay[] there with her mistress.” Perhaps Priscilla had left children or other family back in Louisiana, for she apparently made an “entreaty” to be returned there, and her mistress acceded to her wish. “After residing in Paris some months, Priscilla was sent back by her mistress to Louisiana, in the ship Garonne, and arrived in New Orleans in November, 1835.” Back in Louisiana, Priscilla was hired out, or hired herself out “in New-Orleans on wages, for account of her mistress.”

Priscilla filed “a suit for freedom” in the Parish Court for the Parish and City of New Orleans. She alleged “that, by going to France with the consent of her mistress, she became free, because slavery is not permitted there, and that the moment she landed in that country she became free.”

At trial, Priscilla established the facts described above. She also presented a lawyer familiar with French law as an expert. One “E. Caillard, Esq., being called on the part of the plaintiff, sa[id] he studied law in France; that there is no slavery permitted there. As soon as a slave lands on the French soil, he is free by the mere fact.”

The trial judge apparently heard the case without a jury. He ruled that Priscilla, “being domiciled in Louisiana, must be governed and controlled by the laws of this state, in her claim for freedom; that the mere fact of going to France, and returning to Louisiana, could not take the case out of the general rule.” He therefore rendered judgment in favor of Mrs. Smith and against Priscilla.

In reaching this decision, the Parish Judge apparently recognized that the Supreme Court of Louisiana had ruled to the contrary. As we shall see, he apparently defended his ruling by arguing, among other things, that “more than one decision of the supreme judicial tribunal is required to settle the jurisprudence on any given point or question of law.”

The judge's argument immediately reminds me of the arguments of Lincoln and the Republicans that the Supreme Court decision in Dred Scott settled only the rights of the parties in that case, and that a single decision could not definitively settle the issue as to Congress’s power to bar slavery in the territories.

Priscilla appealed to the Supreme Court of Louisiana.