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.

Marie Louise v. Marot: "Being free for one moment"

Having examined a number of Missouri slave freedom cases, let's turn to another State. Hmmm. Let's try . . . Louisiana.

In Marie Louise v. Marot, 9 La. 473, 1836 WL 864 (1836), the plaintiff sought freedom for her daughter, Josephine. She asserted that the defendants had taken Josephine, a slave, to France, "a country in which slavery is not tolerated, and that she thereby became free." Upon their return to Louisiana, the defendants "maliciously imprisoned" Josephine.

The case was tried in Louisiana state district court in June 1835. At trial, the evidence established the facts as alleged. Among other things, Josephine and her mother somehow prevailed upon two presumably white "witnesses of unimpeached credibility" to testify that, under French law, "slavery or involuntary servitude is not tolerated" and operated "so as to produce an immediate emancipation."

The trial judge delivered to the jury a set of instructions that indicated that Josephine was entitled to her freedom if she had resided in France, however briefly:

"That if the plaintiff's daughter, Josephine, was taken by the person claiming her services as a slave to a foreign country, where slavery does not exist, and is not tolerated, and by the laws of which such slave would be entitled to her liberty, for the purpose of residence, even temporarily, that is, for any other purpose than mere passage through such country, and perhaps even then, the person so taken to such country would become free, and that freedom once impressed upon an individual was indelible; and the status, or condition in society of such party could not be changed . . ..

"It is for the jury to decide the fact, whether the plaintiff's daughter, Josephine, was taken to France on a mere passage through the country, or for the purpose of temporary residence. That in the opinion of the court, it makes no difference, that the donee or owner of the slave, as the defendant, was a minor at the time of the voyage to France, and could give no legal consent; because the condition of freedom was de facto impressed on the person held to service, so carried to a foreign country, without having ran away or escaped . . .; but the right to personal freedom by such residence, in such foreign country, was acquired by, and stamped upon the person so previously held to such service, and such a person is entitled to freedom."

The jury returned a verdict "that Josephine is entitled to her freedom," although it denied her money damages. The defendants appealed.

The Supreme Court of Louisiana heard the appeal in May 1836. After reciting the factual and procedural background, Justice George Mathews, Jr., writing for a unanimous court, affirmed the judgment below in a single paragraph. After describing "the benign and liberal effect of the laws and customs of" France, as described above, Justice Mathews held that Josephine was free and could not be re-enslaved:

This fact [concerning the nature of French law] was submitted to the consideration of the last jury, who tried the cause under a charge of the judge, which we consider to be correct, and was found in favor of the party whose liberty is claimed. Being free for one moment in France, it was not in the power of her former owner to reduce her again to slavery.