William Henry Chase Has His Habeas Suspended

You may know that in the beginning months of the Civil War President Lincoln issued a series of directives suspending the writ of habeas corpus.  Most of the suspensions were geographically defined (e.g., "at any point on or in the vicinity of the [any] military line, which is now [or which shall be] used between the City of Philadelphia and the City of Washington, via Perryville, Annapolis City, and Annapolis Junction").

But did you know that one suspension was directed toward a single individual?  On June 20, 1861 Lincoln sent a letter to Gen. Winfield Scott authorizing the suspension of habeas as to one "Major Chase, lately of the Engineer Corps":

To Winfield Scott

State Department, June 20, 1861.

The Lieutenant-General Commanding the Armies of the United States: You or any officer you may designate will, in your discretion, suspend the writ of habeas corpus so far as may relate to Major Chase, lately of the Engineer Corps of the Army of the United States, now alleged to be guilty of treasonable practices against this government.  ABRAHAM LINCOLN.

By the President:

WILLIAM H. SEWARD

So who was "Major Chase"?  The Lincoln Log identifies him as  "Major William Henry Chase [, who] resigned from the U.S. Army, October 31, 1856.  In 1861 he was commissioned colonel and major general of Florida state troops in the Confederate Army."

Wikipedia has an entry on Chase, although, strangely, it does not mention his unique recognition by the president.  Born in 1798, Chase was 63 years of age at the beginning of 1861.  Wikipedia describes his activities in Florida at the time of that state's secession that presumably resulted in Lincoln's order:

As the outset of Civil War became inevitable in January 1861, Chase sided with the Confederate partisans in Pensacola and was commissioned a colonel in the Florida militia. On January 8, two days before Florida officially seceded from the Union, Florida Governor Madison S. Perry authorized Chase to seize all federal forts in Pensacola. He was active in securing the surrender of the Navy Yard on January 12. On January 15, he and a small party rowed out to Fort Pickens, where Union forces had relocated, to demand surrender from Lieutenant Adam Slemmer. As recounted by J. H. Gilman, Chase said the following to Slemmer:

 "… It is a most distressing duty to me. I have come to ask of you young officers, officers of the same army in which I have spent the best and happiest years of my life, the surrender of this fort. I would not ask it if I did not believe it right and necessary to save bloodshed; and fearing that I might not be able to say it as I ought, and in order, also, that you may have it in proper form, I have put it in writing and will read it." He then took the manuscript from his pocket and began to read, but, after reading a few lines, his voice shook, and his eyes filled with tears. He stamped his foot, as if ashamed of exhibiting such weakness, and said, "I can't read it. Here, Farrand, you read it."

After the demand for surrender was read, Slemmer and Chase discussed what chance of success the 800 Confederate troops would have in seizing Pickens by force. Chase insisted that a defense would be futile:

"I could carry it by storm. I know every inch of this fort and its condition. … If you have made the best possible preparations, as I suppose you have, and should defend it, as I presume you would, I might lose one-half of my men. … You must know very well that, with your small force, you are not expected to, and cannot, hold this fort. Florida cannot permit it, and the troops here are determined to have it; and if not surrendered peaceably, an attack and the inauguration of civil war cannot be prevented. If it is a question of numbers, and eight hundred is not enough, I can easily bring thousands more."

Slemmer refused to surrender and held the fort until reinforcements could arrive. Pickens remained under Union control throughout the war.

Chase was promoted to brigadier general and later major general of the Florida forces, but due to his age and health, he had little active role in the war.

He died at his home at the southwest corner of Palafox and Wright Streets (now the site of Episcopal Day School) on February 8, 1870.

 In Justice in Blue and Gray: A Legal History of the Civil War, Stephen C. Neff observes that Chase "thereby obtained whatever degree of immortality a footnote is capable of conferring."

The Poughkeepsie Convention: Irrelevant But Important

On balance, I think single-state secession is probably unconstitutional. And yet the thing continues to nag at me.

The Constitution nowhere says, in so many words, that once you're in, you're in forever. Yes, that conclusion can be teased from - implied from - various provisions. But, assuming the Constitution is forever, isn't that fact almost certainly the single most important reality of the document? Shouldn't readers and prospective voters have been placed on explicit notice, if that was the intent? It all feels a little, how should I put this, sleazy, sort of like the bait-and-switch tactics that might be employed by a used car salesman.

Likewise, you'd think that, if you were a delegate at one of the state ratification conventions in 1787-1788, the single most important question on your mind would be, Hey, is this thing forever? And if people understood that it was forever, don't you think that opponents, at least, would be shouting that fact from the rooftops? "Don't think that, if you ratify, you can ever get out! You and your children and your children's children will be bound unto the last generation!"

And yet the record is strangely silent. To the best of my knowledge, not a single Anti-Federalist intoned such warnings. And likewise, no Federalist, to the best of my knowledge, asserted that ratification was an unalterable act, with one exception, at the end of the New York Convention, after ten states had already ratified the Constitution - and when it was too late.

All of this leads me to infer that one of two conclusions must apply: either everyone understood that ratification was forever - it wasn't necessary for opponents to make the argument, everyone already knew it - or no one (or virtually no one, and virtually wasn't talking) did.

***

In one sense, the closing weeks of the convention called to decide whether New York would ratify the United States Constitution are irrelevant. On June 24 and July 2, 1788, news had arrived in Poughkeepsie, where the delegates were assembled, that New Hampshire and Virginia had ratified the document – the ninth and tenth states to do so.

Article VII provided that “[t]he Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” By its terms, the document, and the new government it created, would go into effect whether New York ratified it or not.

At the same time, both opponents and proponents of the Constitution at the Convention recognized that New York's decision was fundamentally important. Both pros and antis recognized that New York, as an emerging commercial powerhouse occupying a crucial swath of land that divided the New England states from their more southerly brethren, potentially held the key to whether the new government would, as a practical matter, succeed. In the words of Yale Lawprof Akhil Amar,

Then, New Hampshire and Virginia voted their approval – enough to put the document in operation, but only among the states that ratified it. At this point, all eyes turned to Poughkeepsie, where New York's ratifying convention was being held and where the Constitution's anti-Federalist opponents initially held a commanding lead. Without the acquiescence of New York – with its critical harbors, rivers and landmass – could the Philadelphia blueprint really work as planned?

The closing weeks of the Poughkeepsie Convention – roughly July 14, 1788 through July 26, 1788, when the Constitution was approved by a razor-thin margin – are also inherently dramatic. The positions taken and arguments advanced shed light, I think, on what both advocates and opponents understood the nature of the proposed new government to be.

I have been over some of this ground before. But having now laid my hands on Volume XXIII of The Documentary History of the Ratification of the Constitution, covering ratification by New York from July 14, 1788, I propose to take a new look at some of the key events in those closing weeks. In particular, I hope to examine what those events suggest about the most important constitutional issue of the nation's first seventy-five years: the propriety of single-state secession. In a nutshell, did the members of the Poughkeepsie Convention – and by implication the members of other conventions that had already approved the Constitution – understand that ratification was a permanent and un-recallable act (except, perhaps, through the amendment procedures of Article V)?

Learned commentators - including the aforesaid Prof. Amar - have argued that the debates in the Poughkeepsie Convention's closing days demonstrate that it was generally understood that the Constitution, once ratified, was (in the words of James Madison) "in toto and for ever." I, too, took this to be the case. But upon continued reflection I think the evidence is far more ambiguous. Indeed, I believe a powerful case can be made that, until the very end at least, no one - proponents or objectors - understood this to be so. And this suggests that those who had voted on the Constitution at earlier conventions - those of the ten states that had already ratified the document - didn't understand it either.

***

As of mid-July 1788, the pro and anti forces at the Poughkeepsie Convention were locked in a desperate struggle. The antis, headed by John Lansing and Melancton Smith, had arrived at the convention on June 17, 1788 with a large majority. The news from New Hampshire and Virginia had weakened their resolve somewhat, but they fought on and appeared to continue to hold the upper hand. On July 14, only the impassioned pleas of the leaders of the pro-Constitution forces, John Jay and Alexander Hamilton (“the american Cicero”, in the words of David S. Bogart, who witnessed Hamilton's performance that day), persuaded the convention, sitting in Committee of the Whole, to adjourn for the day before taking a key vote that Federalists knew would go against them.

The positions of the parties as of mid-July boiled down to whether ratification should be conditional or not. The antis no longer advocated outright rejection. Instead, they argued that the Constitution should be ratified, but only on condition that the document be amended in a number of respects. On July 11, and again on July 15, Melancton Smith had introduced the resolution that served as the focal point of the battle.

Smith's resolution was a complex and subtle piece of work, which I will examine in my next post on the subject.

"A significant portion of this nationalist movement may instead be the result of a biased amendment procedure"

Lawprof and blogger Michael B. Rappaport has an interesting new article out: Reforming Article V: The Problems Created by the National Convention Amendment Method and How to Fix Them. Here's the abstract:

The amendment provisions of the United States Constitution have a serious defect. Although some commentators claim that the supermajority rules in these provisions are too strict, that is by no means clear. Rather, the clear defect in the amendment provisions is that the only effective way they provide of amending the Constitution requires Congress’s approval and therefore Congress enjoys a veto over all amendments. While the Constitution does formally allow the state legislatures to seek to amend the Constitution through a national convention, that amendment method is broken. Not only has the national convention method never been used to pass an amendment or even to call a convention, the state legislatures are unlikely to ever use this method, because of the state legislatures’ fear of a runaway convention that might seek to enact constitutional amendments that they strongly dislike.

This congressional veto over amendments has significant normative implications. It suggests that the Constitution cannot be amended in a way that will constrain congressional power. It also makes it unlikely that the Constitution can be amended to limit the federal government or to expand state authority, because Congress is unlikely to support these changes. While it has often been assumed that the increased nationalism of the Constitution and government over the course of American history reflects changes in technology and values, a significant portion of this nationalist movement may instead be the result of a biased amendment procedure.

In addition to exploring the normative implications of the broken amendment procedure, the article also proposes a new amendment method. Under this state drafting procedure, an amendment would be enacted when it was approved by two thirds of the state legislatures and was ratified by three quarters of the states through either state conventions or ballot measures. Finally, the article argues that this reform of the amendment procedure could actually be passed under the national convention method and proposes a strategy for enacting it.

Don't take my word for it. The article is Lawrence Solum's Download of the Week.

I was looking for an appropriate illustration and noticed that Wikipedia has this series of, I guess they're sort of flow charts, purporting to illustrate the various "plans" presented during the Philadelphia Convention. They look cool, although I don't have any idea what they mean. The one at the top illustrates the Virginia Plan.

Chief Justice Spencer Roane?

As a fan of counterfactuals, I was intrigued when I saw a post at Concurring Opinions highlighting a "What If" constitutional law symposium scheduled to be held in the Spring.

Having reviewed the list of topics, however, I'm disappointed. I was really hoping for "What If Spencer Roane Had Become Chief Justice in 1801".

John Tyler, Sr. Initiates the Annapolis Convention

Thus far - I'm only in early 1787 - Lance Banning's The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic is proving to be a wonderfully detailed, largely chronological examination of the development of Madison's political views, in an attempt to cast light on the so-called James Madison Problem. But since this is a blog, I often like to focus on the trivial.

Banning relates, for example, that none other than John Tyler, Sr. - the father of the tenth president - was the instigator of the call for the meeting of state representatives that became the Annapolis Convention. The Convention itself was pretty much a bust, except that the delegates issued a call for another convention to meet in Philadelphia in May of the following year.

At all events, the Annapolis Convention had its genesis in a resolution that the senior Tyler introduced in the Virginia legislature on December 1, 1785. After the Virginia House defeated resolutions spearheaded by Madison to instruct Virginia's delegates to the Confederation Congress to move for federal power over trade, on the last day of the session the House revived and passed Tyler's resolution "to appoint commissioners to meet with delegates from other states to recommend a federal plan for regulating commerce."

The degree of Madison's involvement in the creation and passage of Tyler's resolution is apparently unclear. Prof. Banning opines that Madison "may . . . have arranged for Tyler to propose the resolution of December 1; and he was probably responsible, at minimum, for the revival of the latter's motion on the session's final day."

Ironically, the Tyler resolution passed by the House was (or at least turned out to be) far more revolutionary than the Madison resolutions that it voted down. Madison was proposing to try to work within the existing Confederation Congress to amend the existing Articles of Confederation to grant that Congress increased powers. Tyler's resolution suggested (and ultimately accomplished) an extra-legal solution outside the Congress and the Articles.

An Update on "Bounties"

I'm pleased to see that the Constitution of the Confederate States of America line-by-line comparison site (well worth bookmarking) has changed its description of the reference to "bounties" in the first subsection of Article I, Section 8. The description now reads as follows (emphasis added):

Lastly, the CSA essentially bans trade protectionism by saying that tariffs cannot be imposed on foreign goods for the sole purpose of protecting local industry. It also bans "bounties" from the Treasury, which at the time was the term used to describe government subsidies distributed to offset the costs of managing certain uncompetitive industries.

Southerners had often been prevented from buying cheaper foreign goods because of such Yankee projectionist measures.

For background, see my posts The Confederate Constitution: "No bounties shall be granted", "Even the fishermen of Massachusetts and New England demand and receive . . . a pure bounty" and A Footnote on "Bounties".

Commorancy

Well here's a word I never heard of before, courtesy of Earl M. Maltz's Slavery and the Supreme Court, 1825-1861.

Strader v. Graham was a suit that involved Kentucky slaves who had traveled to Ohio and Indiana, with the consent of their master, then voluntarily returned to Kentucky. A question in the case was whether their visits to free states terminated their status as slaves. In 1847, the Kentucky Court of Appeals held that, whatever their status under Ohio and Indiana law, their slavery reattached when they returned to Kentucky.

In an appeal to the United States Supreme Court, attorney Walter Jones argued that the slaves became forever free when they touched the soil of Ohio or Indiana with the consent of their master.

Jones explicitly rejected the position that the character or duration of a putative slave's presence in a state north of the Ohio River was relevant to the analysis, asserting that "there [is] no distinction . . . to be drawn from the mere duration of commorancy, if the removal to a free state was voluntary on the part of the slave and with the permission of the master" and that "the instant . . . came within the boundaries of such states, the laws of those states took effect upon his condition, and eo instanti he became clothed with every attribute of freedom."

As you will gather from the context, "commorancy" means temporary residence.

"They left us free to change"

Ann Althouse recently pointed out this perceptive observation by Justice Scalia:

The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court's criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter majoritarian preferences of the society's law trained elite) into our Basic Law.

Unknown Supreme Court Justices

Vanderbilt University held a seminar on, and has published a series of papers about, neglected Supreme Court Justices. I haven't read any yet, but I'm happy to see that the antebellum era is well represented. There are articles on John Catron, the Jacksonian who corresponded with president-elect Buchanan concerning Dred Scott; and John McLean, the intensely political and (in my view) intellectually challenged Dred Scott dissenter and perennial presidential candidate.

But most interesting of all, to me at least, there is an article on William Johnson of South Carolina, who remarkably held, as Circuit Justice, that the South Carolina Negro Seamen Act was unconstitutional and who vehemently opposed nullification. I've been meaning to read something about Justice Johnson, and now I'll have the chance to do so.

Thanks to Prof. Orin Kerr at Volokh for the pointer.

James Buchanan, Savior?

Lawrence Solum recommends an article by Mark A. Graber, James Buchanan as Savior? Judicial Power, Political Fragmentation, and the Failed 1831 Repeal of Section 25. Here's a portion of the abstract:

James Buchanan is often credited with being the unlikely savior of judicial review in early Jacksonian America. In 1831, Buchanan, then a representative from Pennsylvania, issued a minority report criticizing the proposed repeal of Section 25 of the Judiciary Act of 1789 that is generally credited with convincing a skeptical Congress that fundamental constitutional norms required federal judicial oversight of state courts and state legislatures. This paper claims that federalism and political fragmentation were more responsible than James Buchanan for the failed repeal of Section 25 . . ..

Unfortunately, the full abstract suggests that Prof. Graber (the author of a book on Dred Scott that I haven't read) is somewhat longwinded and given to jargon ("Judicial power, the evidence from 1831 and other times suggests, thrives in a political environment more characterized by intercurrence than realignment.").

Nonetheless, the underlying subject matter looks interesting. For you non-lawyers, the "Section 25" of the title is Section 25 of the Judiciary Act of 1789, passed by the First Congress to set up the federal court system. The text is here. Section 25, in Prof. Graber's words,

authorized the Supreme Court to review state court decisions upholding state laws against federal constitutional attack, declaring federal laws unconstitutional, or rejecting claims of federal constitutional right. Repeal for all practical purposes would have abolished federal judicial review of state laws and severely curtailed federal judicial review of national laws.

Apparently, in 1831, the House Judiciary Committee issued a report recommending the repeal of Section 25. "[James] Buchanan, then a representative from Pennsylvania, issued a minority report criticizing the repeal," and his analysis carried the day.

The topic looks particularly interesting because of the date: 1831 was fewer than two years before the Nullification Crisis. The proposed repeal of Section 25 would have facilitated Nullification tremendously. Or, rather, perhaps it would have made political Nullification unnecessary, because the same end could have been accomplished through the state judiciary. Assume, for example, that the South Carolina Supreme Court held in 1832 that the tariff was unconstitutional and ordered imported goods released without payment of the tariff. No Section 25, no appeal to the U.S. Supreme Court, no remedy.

I haven't looked at the Judiciary Committee Report yet. Who wants to bet there was a South Carolinian or two sitting on the Committee?

Note to self: check David Currie.

Late Colonial and Early National Juries

William E. Nelson’s groundbreaking Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760-1830 was first published over thirty years ago. For me, at least, what was most stunning about the book was its description of the way in which juries functioned in the late colonial and early Republic periods. In particular, it was understood and expected that juries would determine both the facts and the law.

This meant that, as a practical matter, the power of colonial and state legislatures was extraordinarily weak. What mattered were customs of the local community, embodied in their juries. In effect, “jury nullification” was the norm:

[T]he law-finding power of juries meant that the representatives of local communities assembled as jurors generally had effective power to control the content of the province’s substantive law. Because of the power of juries, the legal system could not serve as an instrument for the enforcement of coherent social policies formulated by political authorities, either legislative or executive, whether in Boston or in local communities, when those policies were unacceptable to the men who happened to be serving on a particular jury.

***

The power of juries over the substance of the law, the restraints that the doctrine of precedent imposed on judges in their performance of their few law tasks, the lack of coercive power on the part of officials, and their liability to damage judgments at the hands of juries rendered formal institutions relatively weak. Officials were, in essence, incapable of exercising their coercive powers without the consent of the local communities they “governed.”

***

The antiauthoritarian response of the province’s legal system, which made it impossible for officials to act without the approval of local communities, apparently insured that officials would act on against people who violated community norms of morality and justice, while people who followed those norms would be safe and their rights and properties secure.

Over the past several years, Professor Nelson’s work has assumed increasing importance as other scholars have used it to explore diverse areas of legal and constitutional history.

One recent example is an article posted earlier this month on SSRN: Robert L. Jones, Finishing a Friendly Argument: The Jury and the Historical Origins of Diversity Jurisdiction. By way of background, Article III, Section 1 of the Constitution gave Congress the power to create “inferior” federal courts below the Supreme Court, but did not require Congress to do so (“The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”).

The First Congress promptly used this authorization to create federal trial courts, called District Courts, the major business of which was to try so-called “diversity” cases – that is, ordinary cases, involving state law issues, where the parties were citizens of different states, or one party was a foreign national. By way of example, if a New Yorker sued another New Yorker for breach of contract or theft of property, he had no choice but to bring that suit in state court. But if a Virginian, or a citizen of Britain, sued a New Yorker on such a claim, he had the option of bringing his suit in the newly-created federal trial court for the “District” of New York.

In his article, Professor Jones explores the question, Why did Congress bother? Why create a duplicative set of federal trial courts devoted largely to trying cases that state courts were already handling? Building on Professor Nelson’s findings, Professor Jones identifies the jury as the key to the puzzle. Federal legislators intent on creating a system of justice that gave greater weight to national interests presumably understood that the composition of jury panels was crucial. By establishing separate federal trial courts, local federal officials could manipulate the composition of federal juries in several ways.

First, unlike now, when jurors are summoned by lot, at the time federal marshals had the discretion to select just about anyone they wished. A federal marshal could therefore summon men he knew to be reliable Federalists who were sensitive to national interests. Professor Jones’s review of jurors summoned to the federal District Court in New York shows exactly this pattern. Leading men in the professional and business communities were summoned over and over again.

The other crucial element was geography. In state courts, trials were truly local affairs. Judges rode circuit from county to county. If a case involving a contract or a dispute over a parcel of land went to trial, the trial was held in the county where the contract was made or the land was situated. The jurors came from the same county. Their decision reflected (in Professor Nelson’s words) “community norms of morality and justice.”

In contrast, in most states the federal District Courts sat in only one (occasionally two) places. Typically, those locations were the leading business and financial centers. In New York, for example, the court sat in Manhattan (it also sat one time in Albany). That meant that the overwhelming percentage of jurors would come from Manhattan – even if the dispute involved a contract or land in the distant reaches of the state. As already noted, those Manhattan jurors tended to be the “better sort”, members of the merchant, financial and business community.

These devices could be extremely effective. Professor Jones cites as an example an extraordinary string of victories by out-of-state and British plaintiffs seeking to recover land in New York:

Between 1809 and 1815, the New York Circuit Court rendered judgments in approximately thirty-five ejectment suits. In all of these cases, diverse [that is, out-of-state] plaintiffs claimed title to the land and sought to eject a local inhabitant in an upstate county [including Broome, Cayuga, Cortland, Seneca, Tioga and Washington]. Twenty-six of the suits were brought by British heirs of Donald Fisher to eject landholders in upstate Washington County. The Fisher cases arose of the New York confiscation laws, which had redistributed the lands of loyalists during the Revolution.

Under New York law, all of these title disputes would have been tried in the counties where the land was located had they been litigated in state court. One can speculate whether a British heir to a loyalist would have been successful in dispossessing a local inhabitant had the case been tried before a jury composed exclusively of local farmers. The federal juries, however, were composed of Manhattan residents who were predominantly merchants. The Fisher plaintiffs succeeded in dispossessing the local inhabitants in every one of their federal cases. In fact, the judgment rolls reveal only one instance during this period where the federal jury found for the defendant in an ejectment case.

As a side note, did you ever wonder how federal authorities so successfully stacked the juries in the Sedition Act cases with Federalist jurors prepared to convict the defendants? Now you know.

Professor Nelson’s work has also gained new attention as the result of an article by Suja A. Thomas bearing the startling title Why Summary Judgment is Unconstitutional. For non-lawyers, summary judgment is a procedural device that defense lawyers use in civil cases (that is, non-criminal cases) to seek the dismissal of cases before they are presented to a jury. Under modern rules, if the relevant facts are undisputed, a judge is entitled to dismiss a case “as a matter of law” if the substantive law warrants it. For example, if a judge concludes that the wording of a written contract is unambiguous (not reasonably susceptible of more than one meaning), he may rule in favor of one party or the other. The jury is not involved.

Professor Thomas argues that the use of this procedure violates the Seventh Amendment right to a jury trial in civil cases (“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.”). When the Seventh Amendment was ratified, she argues, juries decided both the facts and the law; it was practically impossible to obtain dismissal of cases unless a jury decided to so rule, and there was certainly no procedure akin to modern-day summary judgment. Thus, the right to a jury trial included the right to have a jury decide virtually every case -- including cases that are now dismissed before trial today.

It is obviously impossible, in the context of an already-long blog entry, to evaluate Professor Thomas’s claim. However, it is worth noting that the University of Iowa recently held a symposium on the issue, with papers by both Professors Thomas and Nelson, among others.

Do the "Texas Tots" Still Live?

If you’re reading this blog, you probably already know that the March 1, 1845 Joint Resolution for Annexing Texas to the United States included a provision that permitted the later division of the state into a total of up to five states. Section 1 of the Joint Resolution contained Congress’s consent that the Republic of Texas could be “erected into a new State, to be called the State of Texas.

Section 2 contained three “conditions” and “guarantees” upon which Congress gave its consent. The third condition permitted the future division of the state with its consent:

Third. New States, of convenient size, not exceeding four in number, in addition to said State of Texas, and having sufficient population, may hereafter, by the consent of the said State, be formed out of the territory thereof, which shall be entitled to admission under the provisions of the federal constitution. . . .

Upon reading Let’s Mess With Texas, I immediately had one of those “Why didn’t I think of that?” moments. In their article, the authors, Vasan Kesavan and Michael Stokes Paulsen, argue that the Joint Resolution remains in effect: Texas may, at any time, reconstitute itself into five states:

We think that this “[n]ew States” language contained in the second section of the Joint Resolution of March 1, 1845, which we will refer to as the “Texas Tots provision,” gives Texas the legal entitlement to reconstitute itself as five states, now, by simple act of the Texas Legislature, and with the consent of each of the new states thereby created – a tricky mega-redistricting political problem to be sure, but probably not an impossible one. But no further legislative action by Congress is necessary for Texas constitutionally to have permission to become five Texas Tots. There may be details to work out – t’s to cross and i’s to dot. But the constitutionally necessary consent [of Congress] was given long ago, remains in effect today, and has not been superseded or impliedly repealed by any other provision of federal law.

In response to a recent post, Ed Darrell was kind enough to leave a comment questioning the authors' conclusion. Ed observed:

I think most authorities hold that Texas's right, if it ever was valid, died with Texas's secession from the union. In any case, the readmission process following the Civil War did not allow for five states to be carved out of Texas.

He added further background in a post at his blog, Millard Fillmore's Bathtub.

I'm going to take another look at the article. If that doesn't address Ed's issue, I may reach out to the good professor and see whether I can get a response.

Abraham Lincoln and Judicial Authority

An interesting article to add to the list: "Lincoln and Judicial Authority," by Michael Stokes Paulsen. Here's the abstract:

In this Article, I trace the development of Abraham Lincoln's stance on judicial authority, and his eventual repudiation of judicial supremacy, from his first major speech addressing the Dred Scott decision in 1857, through the Lincoln-Douglas debates of 1858, the presidential campaign and "secession winter" of 1860, and, finally, during Lincoln's presidency, from his first inauguration in March 1861 to his assassination in April 1865. The moral of this story, I conclude, is one I have advanced in other writing: the President, and other nonjudicial political actors swearing an oath to the Constitution and acting within the spheres of their separate constitutional powers, are not constitutionally bound by erroneous decisions of the Supreme Court that they in good faith conclude are antithetical to the Constitution and harmful to the nation.

One may reject this proposition -- nearly all constitutional scholars, judges, and elected officials today do -- but only by rejecting one of Lincoln's most important political and constitutional positions, fundamental to everything else he said and did as President. Lincoln's rejection both of Dred Scott specifically and more generally of judicial supremacy in constitutional interpretation was an essential part of the platform on which Lincoln rose to national prominence and was elected President. That stance, and Lincoln's election on such a platform, was featured among prominent Southerners' purported constitutional justifications for secession: the nation had just elected a lawless, anticonstitutional President who would invade the South's constitutional rights, as duly determined by the United States Supreme Court, with respect to slavery. The decision by Lincoln and the Union to fight secession thus depends, for its legitimacy, on a rejection of the Southern position on the legitimacy of Lincoln's constitutional views.

The judicial supremacist stance accepted by most people today is the anti-Lincoln stance. It is the position of Lincoln's early political arch-adversary, Senator Stephen Douglas, in support of the binding authority of Dred Scott and of any subsequent decision of the Supreme Court extending slavery throughout the nation. And it is the position of Jefferson Davis and the South, in opposition to the constitutional legitimacy of a President and party elected on a platform of opposition to the controlling force of the Supreme Court's interpretations of the Constitution. In short, if the Douglas-Davis view is right -- that judicial decisions bind subsequent judicial actors, and all political actors -- then Lincoln was wrong in nearly everything he stood for. Indeed, Lincoln's election as President rested on fundamentally anticonstitutional premises. If judicial supremacists are correct, the South was not only within its rights in seceding, but did so for just constitutional cause -- rebelling against an administration and government premised on a grave breach of the Constitution.

Lawrence Solum comments, "I find Paulsen's work compelling (even when I am not convinced). Highly recommended." That's good enough for me.

The Interstate Slave Trade 3

Sections 8 through 10 of “An Act to prohibit the importation of slaves into any port or place within the jurisdiction of the United States, from and after the day of January, in the year of our Lord one thousand eight hundred and eight” were designed to prevent illegal smuggling of slaves into the country. They did so by imposing restrictions and regulations on domestic transfers of slaves by ship.

The sections distinguished between “any ship or vessel of less burden than forty tons” (Section 8) and “any ship or vessel, of the burden of forty tons or more” (Sections 9 and 10). As to the former, Section 8 imposed a total ban on their transportation, “to any port or place whatsoever,” of “any negro, mulatto, or person of color” “for the purpose of selling . . . the same as a slave.” The Section did contain a proviso that specified that it was not otherwise illegal to transport persons of color within the United States:

And be it further enacted, That no captain [etc.] of any ship or vessel of less burden than forty tons shall . . . transport any negro, mulatto or person of color, to any port or place whatsoever, for the purpose of selling or disposing of the same as a slave . . .: Provided, however, That nothing in this section shall extend to prohibit the taking on board or transporting on any river or inland bay of the sea, within the jurisdiction of the United States, any negro, mulatto, or person of color, (not imported contrary to the provisions of this act) in any vessel or species of craft whatever.

Sections 9 and 10 imposed detailed reporting requirements on vessels of 40 tons or more “sailing coastwise from any port in the United States to any port or place within the jurisdiction of the same, having on board any negro, mulatto or person of color, for the purpose of transporting them to be sold or disposed of as slaves.”

Before departing, the captain of any such vessel was required to fill out, in duplicate, a manifest describing each such slave in detail. He was to deliver the duplicate manifests to the port official, together with his sworn statement and that of the shipper that, to the best of their knowledge, none of the slaves had been illegally imported. The port official certified the manifests, keeping one and returning the other to the captain with a permit “specifying thereon the number, names, and general description of such persons, and authorizing him to proceed to the port of his destination."

When he arrived at his destination, the captain was obligated, before discharging any of the slaves, to deliver the certified manifest to the port official, and swear or affirm to its truth. If satisfied, the port official would issue to the captain a permit authorizing the “unlading” of the slaves.

The Interstate Slave Trade 2

According to David Lightner, in his book Slavery and the Commerce Power: How the Struggle Against the Interstate Slave Trade Led to the Civil War (Yale University Press 2006), it took almost twenty years before anyone realized that Congress’s power to regulate or abolish the interstate slave trade posed a potentially deadly threat to the peculiar institution.

The occasion was the debate in Congress in 1807 over the enactment of legislation to outlaw the international slave trade. In order to understand how the interstate slave trade issue surfaced in that context, let’s look at the bill as finally enacted, and then work our way backwards.

The bill that was passed, entitled “An Act to prohibit the importation of slaves into any port or place within the jurisdiction of the United States, from and after the day of January, in the year of our Lord one thousand eight hundred and eight,” clearly represented an attempt to close all possible loopholes. It is therefore heavily laden with legal verbiage. However, in broad outline, the sections addressed the following:

Section 1 laid out the basic rule. It was unlawful to import “any negro, mulatto, or person of color” into the United States from any foreign place with the intent of holding, selling or disposing of him as a slave.

Sections 2 and 3 addressed preparations to send slaving ships from the United States. In effect, it was illegal to do anything to prepare a ship to voyage from the United States to any foreign place for the purpose of procuring slaves to be transported back to the United States.

Sections 4 and 5 addressed the taking on board of slaves in foreign waters. It was illegal for a United States citizen or resident to “take on board, receive, or transport” any person for the purpose of selling him as a slave in the United States.

Section 6 addressed domestic purchasers and sellers. It was illegal for a person to purchase or sell an illegally-imported slave in the United States, “knowing at the time of such purchase or sale” that the slave had been illegally imported.

Section 7 addressed international transportation and offshore “hovering.” It was illegal to transport on the high seas, or in any waters of the United States, any person for the purpose of selling him a slave in the United States “contrary to the prohibition of this act.”

I will outline Sections 8 though 10 in a following post.

The Interstate Slave Trade 1

When the Constitution was ratified in 1789, it contained two provisions that related to Congress’s power over the slave trade. The first, the Commerce Clause (Article I, Section 8, Clause 3), provided (and still provides) that Congress had the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

The Commerce Clause, of course, did not specifically refer to slavery or the slave trade. It was clear, however, to the delegates to the Constitutional Convention that it might impact the slave trade. For this reason, the delegates also adopted a clause that restricted the power of Congress to meddle with the slave trade until 1808. This clause, which I will refer to as the “1808 Clause” (Article I, Section 9, Clause 1), stated:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

In his book Slavery and the Commerce Power: How the Struggle Against the Interstate Slave Trade Led to the Civil War (Yale University Press 2006), David L. Lightner points out that the scope of the 1808 Clause is ambiguous. The ambiguity centers on the meaning and implication of the terms “Migration” and “Importation.” For example:

-- Were the terms meant to differentiate between the carrying of slaves between or among states (“Migration”) and the bringing in of slaves from outside the country (“Importation”)?

-- Or were the terms meant to differentiate between the immigration of free whites (“Migration”) and the bringing in of slaves (“Importation”)?

-- Or were the words simply synonyms, both of which were intended to connote the bringing in of slaves from outside the country?

Whatever the precise scope of the 1808 Clause, that Clause appears to provide powerful support for the proposition that the Founders understood that the Commerce Clause extended to the interstate slave trade, as well as to the international slave trade – and that Congress had the power after 1808 (if not before) to restrict or even ban interstate slave trading.

Even if we attribute the most restrictive meaning to the 1808 Clause – that it barred only the importation of slaves, nor their transfer from state to state – it demonstrates that the founders understood that slave trading was “Commerce with foreign Nations” within the meaning of the Commerce Clause. Otherwise, why go to the trouble of carving it out? And if international slave trading was a species of “Commerce” potentially subject to Congressional regulation, there is no textual reason to believe that interstate slave trading was not likewise “Commerce” that Congress could regulate.

Finally, the 1808, however construed, would seem to put to rest the possibility the founders did not understand that the power to regulate included the power to ban altogether. It was presumably precisely because the founders believed the contrary to be true that they restricted Congress’s ability to ban (at least) the importation of slaves from abroad before 1808.

In sum, the textual evidence provides overwhelming support for the proposition that the Constitution gave Congress the power, after 1808 if not before, the ban the interstate transportation and sale of slaves.

And yet, there is also powerful reason to wonder whether anyone understood this. Although most of the evidence is negative, it is striking that no one at the Constitutional Convention so much as mentioned that the Commerce Clause gave Congress the power to strangle the institution of slavery by banning the interstate slave trade. It is even more striking that no southern antifederalist tried to indict the Constitution on the same grounds. Nor did any northerner support or oppose the Constitution on these grounds.

As Professor Lightner summarizes the record, there is “spotty” evidence that a handful of men might have dimly perceived the issue. But it is clear that “it never entered the minds of most southerners that the Constitution gave Congress the authority to outlaw the interstate slave trade.”

Incredibly, southerners apparently did not recognize the danger to slavery presented by Congress’s ability to regulate interstate commerce for almost twenty years:

Not until 1807, when Congress moved toward exercising its acknowledged power to ban the importation of slaves from abroad beginning in 1808, did it dawn upon some southern representatives in Congress that there was a danger of federal intervention in the domestic slave trade.

It is to that episode that we will turn next.

Lemmon v. People XII

It's been a while. As you may recall, dissenting New York Court of Appeals Judge Thomas W. Clerke had concluded that, pursuant to the Constitution, "the citizens of any one State have a right of passage through the territory of another, peaceably, for business or pleasure; and the latter acquires no right over such person or his property."

He then turned to the question whether slaves were "property" under the rule he laid out. He answered in the affirmative, essentially arguing that the Constitution recognized slaves as property:

"[C]an any one State insist, under the federal compact, in reference to the rights of the citizens of any other State, that there is no such thing as the right of such citizens, in their own States, to the service and labor of any person. This is property; and whether the person is held to service and labor for a limited period, or for life, it matters not; it is still property -- recognized as an existing institution by the people who framed the present Constitution . . .."

Judge Clerke conceded that slavery was "a local institution," but found this no impediment to his conclusion:

"And what was the result of those convictions and deliberations [at the Constitutional Convention]? Undoubtedly, that while slavery should be deemed a local institution, depending upon the power of each State to determine what persons should share in the civil and political rights of the community the right is fully recognized in the Constitution, that any of the States may continue and allow the right of property in the labor and service of slaves."

Finally, Judge Clerke rejected the suggestion that the slaveholders' right was "founded merely on comity." The right to passage might be granted voluntarily under international law, but the Consititution cemented the right:

"The right yielded by what is termed comity under the law of nations, ripens, in necessary accordance with the declared purpose and tenor of the Constitution of the United States, into a conventional obligation, essential to its contemplated and thorough operation as an instrument of federative and national government."

Ableman v. Booth XII: "A More Dread Calamity"

Associate Justice Abram D. Smith closed his opinion with a paragraph that presumably summarizes the hopes and fears of many northerners. As you read it, remember that it was released on June 7, 1854, just one week after Congress passed the Kansas-Nebraska Act on May 30:

“What, then, is to be done? Let the free states return to their duty, if they have departed from it, and be faithful to the compact, in the true spirit in which it was conceived and adopted. Let the slave states be content with such an execution of the compact as the framers of it contemplated. Let the federal government return to the exercise of the just powers conferred by the constitution, and few, very few, will be found to disturb the tranquility of the nation, or to oppose, by word or deed, the due execution of the laws. But until this is done, I solemnly believe that there will be no peace for the state or the nation, but that agitation, acrimony and hostility will mark our progress, even if we escape a more dread calamity, which I will not even mention.”

Earlier Posts:

Ableman v. Booth I
Ableman v. Booth II
Ableman v. Booth III
Ableman v. Booth IV
Ableman v. Booth V
Ableman v. Booth VI
Ableman v. Booth VII
Ableman v. Booth VIII
Ableman v. Booth IX
Ableman v. Booth X
Ableman v. Booth XI

"He Came Here With Black Perjury Upon His Soul"

I mentioned in an earlier post that the attorney who represented Sherman Booth in the legal proceedings arising out of the liberation of fugitive slave Joshua Glover was Byron Paine (pictured left, I'd guess in the early 1860s). According to the Wisconsin Court System site, Paine was an abolitionist and friend of Booth who represented him without pay.

But this post is dedicated to more mundane matters. Paine also represented John A. Messenger, who with Booth apparently formed part of the crowd that freed Glover. Like Booth, Messenger was criminally charged in federal court in Wisconsin with aiding and assisting the rescue of a fugitive slave, in violation of the Fugitive Slave Act of 1850. A related decision captures a bit of Paine's courtroom style.

A certain Mr. Jennings was, it seems, a chief prosecution witness against Messenger. His testimony against Messenger was apparently damning, and Paine does not seem to have dented Jennings' credibility, for in his closing Paine was none too subtle. Speaking of Jennings' testimony, Paine's defense was: "He came here [as a witness] with black perjury upon his soul . . . He stood there with black perjury upon his soul . . . He is perjured."

The source is a decision by the Wisconsin Supreme Court in a slander action that Jennings brought against Paine, Jennings v. Paine, 4 Wis. 358, 1855 WL 1921 (1855). The holding, by the way, was that Paine's speech in the courtroom was absolutely privileged.

Ableman v. Booth XI: Prigg v. Pennsylvania

The third and final hurdle that Justice Smith had to clear was Prigg v. Pennsylvania, in which the Supreme Court had ruled that the Fugitive Slave Act of 1793 was constitutional. Before he addressed that decision, he argued at length that the Fugitive Slave Act of 1850 also violated the Due Process Clause. Prigg did not address that issue. For that reason, among many others, the decision was not binding:

“In view of the dissentient opinions of the members of the supreme bench; in view of the discrepancy of opinion which has characterized all other decisions [on the issue]; in view of the fugitive character of the power here claimed by congress, leaping from article to article, from section to section, and from clause to clause, hovering now over a grant, then over a compact, fluttering now around an implication, then around an incident, to find whereon it may rest its foot; in view of the alarm which has seized upon many of the states in consequence of the enormous power which it has called upon congress to assume in its behalf, and the deep wounds which it seeks to inflict upon the rights and sovereignty of the states, and upon the great principles of human freedom; in view of all this, are we not justified in asking of the supreme court of the United States to review their decision . . .?”