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Justice Nisbet explained that, although the common law did not protect slaves, the lot of slaves was far better in Georgia than it had been in Africa. In “that dark land” there was “pure, unmitigated slavery.” So too was slavery at first unmitigated in Georgia “until legislation, prompted by christianity, softened its severities.” Justice Nisbet then sketched out his vision of slavery leavened with Christian charity:
“The curse of the Patriarch rests still upon the descendents of Ham. The negro and his master are but fulfilling a divine appointment. Christ came not to remove the curse; but recognizing the relation of master and servant, he prescribed the rules which govern, and the obligations which grow out of it, and thus ordained it an institution of christianity. It is the crowning glory of this age and of this land, that our legislation has responded to the requirements of the New Testament in great part, and if let alone, the time is not distant when we, the slaveholders, will come fully up to the measure of our obligations as such, under the christian dispensation.”
Justice Nisbet then briefly catalogued the benefits and protections that legislators, guided by Christianity, had been able to bring to slaves without impinging on the rights of the masters:
“The laws of Georgia, at this moment, recognize the negro as a man, whilst they hold him property – whilst they enforce obedience in the slave, they require justice and moderation in the master. They protect his life from homicide, his limbs from mutilation, and his body from cruel and unnecessary scourging. They yield to him the right to food and raiment, to kind attentions when sick, and to maintenance in old age; and public sentiment, in conformity with indispensable legal restraints, extends to the slave the benefits and blessings of our Holy Religion.”
In short, the people of Georgia had made the institution of slavery subject to “the law of kindness:”
“Conceding that there are violations occasionally on the part of the master, of the obligations of humanity, yet it may be asserted, with truth, that the relation of master and slave in Georgia, is an institution subject to the law of kindness to as great an extent as any institution springing out of the relation of employer and employed, any where existing among men.”
There was in slave states a well-developed law of slavery. The history books and legal articles sometimes describe particular holdings in brief sentences or parentheticals, but they give little “feel” for the reasoning. I therefore thought I would read and describe some of the cases. While I will certainly try to explain the issues and decisions, what I really want to do is try to find those passages, if they exist, that shed light on the underlying views and assumptions held about masters, slaves and the institution of slavery.
I thought that I would start with some Georgia cases, simply because I have already discussed one opinion of the Supreme Court of Georgia, in which Chief Justice Joseph Henry Lumpkin delivered a rousing paean to liberty.
Neal v. Farmer, 9 Ga. 555, 1851 WL 1474 (1851), was a civil suit by Nancy Farmer against William Neal. Mrs. Farmer owned “a negro slave,” who is not identified. She asserted that Mr. Neal had killed the slave and sought damages from him for the loss. Again, the circumstances of the killing are not described. A jury found Mr. Neal liable and awarded $825 in damages to Mrs. Farmer.
Mr. Neal appealed. Georgia law apparently provided that one could not sue a person for damages for death unless that person had first been criminally convicted of murder or manslaughter. Mr. Neal’s defense on appeal was that he had not been criminally convicted for the death of the slave; therefore, the civil judgment was improper and should be reversed.
Justice Eugenius Aristides Nisbet (pictured) delivered the opinion for the court. A more detailed biography of Justice Nisbet may be found here. Briefly, Justice Nisbet was a prominent Whig who sat on the Georgia Supreme Court from its creation in 1845 until 1853, when the legislature replaced him with a Democrat. He later attended the Secession Convention, introduced the resolution of disunion, sat on the committee that drafted the Ordinance of Secession, introduced the committee report to the full Convention, and proposed the “unanimity of signature” rule.
As Justice Nisbet saw it, the crucial issue was whether a white person could be criminally convicted for murder of a black slave. If the answer was in the affirmative, then the civil judgment against Mr. Neal should be reversed. If the answer was in the negative, then the civil judgment against Mr. Neal should be affirmed.
Justice Nisbet then undertook a lengthy historical analysis to determine whether it was possible to be guilty of a felony for killing a slave under the common law of England at the time when the colony of Georgia was founded. Justice Nisbet reasoned that, if the common law of England had authorized the crime of murder of a slave, that common law was transmitted to the colony. Extensive historical review showed that English common law had provided that one could be guilty of killing a “villein” – basically a serf – as late as the early 1600s.
Nonetheless, Justice Nisbet ultimately rejected the proposition that English law in the mid-1700s, when the colony of Georgia was founded, recognized that it was a felony to kill a slave. He did so by drawing a distinction between “villenage and negro slavery. Villenage was not a pure slavery” and was different from “[t]he unconditional slavery of the African race, as it exists in Georgia.” Villeins “are broadly and plainly distinguishable from the slave of this country, in this, that they [villeins] had both a civil and political capacity, neither of which appertains to him [the slave].”
The conclusion – that the common law did not judge the killing of a slave to be a felony – did not strike Justice Nisbet as anomalous. To the contrary, he suggested that the result could not be otherwise. If the common law protected the slave, it would necessarily undermine the rights of the master and destroy the very concept of slavery. If slaves had any rights at all, they were only those rights that would not infringe the rights of the master:
“It is theoretically every where, and in Georgia experimentally true, that two races of men living together, one in the character of masters and the other in the character of slaves, cannot be governed by the same laws. Whatever rights humanity, or religion, or policy, may concede to the slave, they must, in the nature of the relation, be often different from those of the master. . . . The civil rights of the master do not appertain to the slave. Of these, he can have none whatever. The rights personal, if they might be so designated, of the slave, are, some of them essentially different from those of the master, and cannot, therefore, be the subject of a common system of laws. They must be defined by positive enactments, which, whilst they protect the slave, guard the rights of the master. If the Common Law . . . protects the life of the slave, why not his liberty? and if it protects his liberty, then it breaks down, at once, the status of the slave.”
In the next post, we will let Justice Nisbet address what protections if any, the slave may have if the law gives him none.
As he builds to a crescendo, Justice Lumpkin's magnificent oratory swells with grandeur and unintentional irony. Print out this passage and read it aloud:
"[T]he Legislature . . . cannot commit political suicide, or rather parricide, by violating or destroying the great first principles of American civil liberty, as set forth and declared in the ten amendments of the Constitution -- a legal decalogue for every civilized society, in all time to come.
"No such attempt would be considered a rightful exercise of legislative authority. To maintain that our Federal or State Legislature possess such a power, is, in our opinion, a political heresy, altogether inadmissible. The British Parliament dare not, at this day, with all its transcendental power, commit such an outrage. For such monstrosity in legislation we must go to semi-imperial France, or semi-barbarous Russia. Any attempt in this country, at this day, to establish religion; to curtail the freedom of speech or of the press; to deprive a party of the privilege of appearing personally, or by counsel; to inflict cruel or unusual punishments; to immure a prisoner without trial, in a dungeon for life; to subject a citizen to a star-chamber proceeding instead of a public trial; would shock not only the common sense, but sense of justice of the teeming millions in this free and happy country! Shame! shame! upon such legislation, would be indignantly uttered by ten thousand tongues!"
The picture above is of Thomas R.R. Cobb, Justice Lumpkin's son-in-law.
We have seen Justice Lumpkin espousing a truly remarkable and radical doctrine: even if State laws do not run afoul of the State constitution, judges can and should strike down State laws that violate the fundamental principle that republican government must protect life, liberty and property.
But does this not lead to judicial activism (as we would say today) run amok? Perhaps the most interesting part of this fascinating opinion is how Justice Lumpkin wrestles with, and resolves, this issue. He finds in the Bill of Rights a limiting principle that constrains judicial discretion. Judges should not strike down all legislative acts that they perceive may be violations of life, liberty and property. They should limit themselves to striking down only those enactments that violate the most important principles -- those declared by the people in the Bill of Rights.
The rhetoric and language are so wonderful that, as before, I will let Justice Lumpkin speak for himself. First, he identifies the problem of excessive judicial discretion:
"But we do not intend to put our opinion in this case upon this foundation [i.e., that courts may nullify all laws that violate life, liberty or property], however solid it may be. For while we have denied the omnipotence of the Legislature, the tendency of our administration, nevertheless has been, to side with those who refused to declare and Act of the Legislature void, because it conflicts with the Court's views of reason, expediency or justice; and who recommend an appeal to the ballot-box as the only remedy for unwise legislation. And one of the strongest arguments against Judicial interposition in such cases is, that apart from a written Constitution, our ideas of natural justice are vague and uncertain, regulated by no fixed standard; the ablest and best men differing widely upon this, as well as all other subjects."
Justice Lumpkin then proposes the solution: courts should limit their discretion by nullifying only those laws that violate the principles embodied in the Bill of Rights, declared by the People to constitute the bedrock principles of republican government:
"But as to questions arising under these amendments [the Bill of Rights] there is nothing indefinite. The people of the several States, by adopting these amendments, have defined accurately and recorded permanently their opinion, as to the great principles which they embrace . . .. [V]iewing these amendments as we do, as intended to establish justice -- to secure the blessings of liberty -- to protect person and property from violence; and that these were the very purposes for which government was established, we hold that they constitute a limit to all legislative power, Federal or States, beyond which it cannot go; that these vital truths lie at the foundation of our free, republican institutions; that without this security for personal liberty and private property, our social compact could not exist. No Court should ever presume that it was the design of the people to entrust their representatives with the power to take away or impair these securities. Such an assumption would be against all reason. The very genius, nature and spirit of our institutions amount to a prohibition of such acts of legislation, and will overrule and forbid them."
The picture above is of Hiram Warner, the third member of the Supreme Court of Georgia in 1852, who also concurred in the decision. Here is a brief biography of Justice Warner, who later became the second Chief Justice of the court, after Justice Lumpkin.
Joseph Henry Lumpkin was the first Chief Justice of the Supreme Court of Georgia, serving on that court from its establishment in 1845 until his death in 1867. You can find brief biographies of him here and here.
So far as I can tell, the web contains no discussion of Chief Justice Lumpkin's most remarkable opinion, Campbell v. State, 11 Ga. 353, 1852 WL 1345 (1852). The purpose of this post (and others to follow) is to remedy that omission.
I will return to the facts later, for they contain a supreme irony in this extraordinary opinion. For present, it is sufficient to state that the defendant, James Campbell, was convicted in January 1852 in Superior Court, Richmond, Georgia of the manslaughter of Carl Mays. Saturday night, January 11, 1851, Campbell and Mays were drinking. Late that night, they apparently fell into a dispute. Campbell hit Mays with a stick or branch, and then stabbed him repeatedly with a sharp instrument. Mays died Monday afternoon.
Campbell appealed to the Supreme Court of Georgia. On appeal, he asserted that his conviction should be overturned because it was based on out-of-court statements by an absent witness, in violation of the Confrontation Clause of the Sixth Amendment to the federal Constitution, which provided (and still provides) in relevant part that, "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." The Georgia Constitution of 1798 did not contain a similar provision. One of the questions presented to the court was whether the Confrontation Clause applied to state court proceedings.
Almost twenty years earlier, in Barron v. Baltimore (1833), the United States Supreme Court had held that the Fifth Amendment and, by implication, the other provisions of the Bill of Rights, did not apply to the states. As we shall see, Chief Justice Lumpkin and the Supreme Court of Georgia did not agree.
Chief Justice Lumpkin delivered the opinion of the court. He enunciated what has been termed a "declaratory" view of the Bill of Rights. That is, he expressed the view that, whether or not the Bill of Rights itself applied to the states, the Bill declared fundamental principles that were binding on any republican government, including the government of the State of Georgia:
"The principles embodied in these amendments. for better securing the lives, liberties, and property of the people, were declared to be the 'birthright' of our ancestors, several centuries previous to the establishment of our government. It is not likely, therefore, that any Court could be found in America of sufficient hardihood to deprive our citizens of these invaluable safeguards."
It is possible that States have the reserved right to ignore these fundamental safeguards? May a State pass a law abridging freedom of speech or of the press? May it establish a state religion? Justice Lumpkin answered these rhetorical questions with words that are both majestic and supremely ironic given their place and time (Georgia 1852):
"Such logic, I must confess, fails to commend itself to my judgment. for let it constantly be borne in mind, that notwithstanding we may have different governments, a nation within a nation, imperium in imperio, we have but one people; and that the same people which, divided into separate communities, constitute the respective State governments, comprise in the aggregate, the United States Government; and that it is in vain to shield them from a blow aimed by the Federal arm, if they are liable to be prostrated by one dealt with equal fatality by their own."
Justice Lumpkin contended that no government "has the right to do wrong." To those who contended otherwise, he cried out:
"From such State rights, good Lord deliver us! I utterly repudiate them from the creed of my political faith!"
In the next post, I will let Chief Justice Lumpkin do most of the talking.
