Ableman v. Booth XV: Whiton on Juries and Commissioners

The United States' principal argument in support of the constitutionality of the Fugitive Slave Act of 1850 was that the United States Supreme Court had already held, in Prigg v. Pennsylvania, that the Fugitive Slave Act of 1793 was constitutional. Chief Judge Whiton did not expressly concede that the Supreme Court of Wisconsin was bound by Prigg. By the same token, he did not expressly deny that the Supreme Court's ruling was binding. Rather, he sought to distinguish Prigg and the 1793 Act from the 1850 Act. He found two distinguishing features, which allowed him to conclude that 1850 Act was unconstitutional without squarely disavowing the authority of the Supreme Court.

The distinguishing features are interrelated. First, he concluded that in Prigg "the question of a trial by jury to determine the facts of the case, was not raised by the record and was not discussed by the [Supreme] court in giving its opinion." Second, because the 1793 Act did not create or authorize the use of United States Commissioners, Prigg obviously did not pass on the constitutionality of that feature of the 1850 Act.

These related aspects of the 1850 Act rendered the Act void, according to Justice Whiton:

"We are of opinion that so much of the act of congress in question, as refers to the commissions for decision, the questions of fact which are to be established by evidence before the alleged fugitive can be delivered up to the claimant, is repugnant to the constitution of the United States, and therefore void for two reasons: First, because it attempts to confer upon those officers judicial powers; and second, because it is a denial of the right of the alleged fugitive to have those questions tried and decided by a jury."

But Justice Whiton's opinion is probably more interesting for what it did not say. You will recall that Justice Smith had held the 1850 Act unconstitutional on the very broad ground that the Fugitive Slave Clause, Article IV, Section II did not grant Congress the power to pass enforcing legislation -- an argument that the United States Supreme Court had squarely discussed and rejected in Prigg. Justice Whiton specifically noted that Mr. Booth had raised this argument, but he then sidestepped it by deciding the constitutional issue on the narrower grounds noted above.

Another American Accent Quiz

This quiz is remarkably accurate as well.

What American accent do you have? Your Result: The Northeast Judging by how you talk you are probably from north Jersey, New York City, Connecticut or Rhode Island. Chances are, if you are from New York City (and not those other places) people would probably be able to tell if they actually heard you speak.
Philadelphia
The Inland North
The Midland
The South
Boston
The West
North Central
What American accent do you have? Quiz Created on GoToQuiz

Ableman v. Booth XIV: Justice Whiton's Opinion

You will recall that Associate Justice Abram D. Smith, by himself, heard and granted Sherman Booth's habeas petition because the full court was not then in session. Thereafter the federal government appealed to the full Supreme Court of Wisconsin, which then consisted of three judges: Justice Smith, Chief Justice Whiton (introduced in the last entry), and associate Justice Samuel Crawford (about whom more in a later post).

The full court affirmed Justice Smith's decision to order Mr. Booth's release by a vote of 2 to 1, with Justice Crawford dissenting. Each Justice wrote a separate opinion. We turn now to that of Chief Justice Whiton.

Chief Justice Whiton's reasoning was similar to that of Justice Smith in a number of respects; it differed in one very interesting way. First, let's examine the issues on which they agreed.

First, his analysis of the jurisdiction issue is largely similar. He too focused on the fact that the warrant under which Mr. Booth was held had been issued by a Commissioner appointed pursuant to the Fugitive Slave Act of 1850. Chief Justice Whiton concluded, in effect, that a Commissioner was not an Article III judge. Therefore, Mr. Booth was not in the custody of the federal judiciary, and Wisconsin state courts could properly exercise jurisdiction over the propriety of Mr. Booth's detention.

Turning to the merits, the Chief Justice also came to the conclusion that the warrant was defective for technical reasons. For example, it did not recite "for what purpose Joshua Glover . . . was in the custody of the deputy of the marshall." This argument is no more convincing to me now than it was when Justice Smith espoused it.

The opinion becomes most interesting when Justice Whiton turns to the constitutionality of the Fugitive Slave Act of 1850. He, too, concluded that the Act was unconstitutional, but on narrower grounds than did Justice Smith. One gets the clear sense that Justice Whiton was less "radical" than Justice Smith. One also gets the clear sense that he was a more careful lawyer, in that he worked hard to reconcile his conclusion with that of Prigg v. Pennsylvania, in which the Supreme Court had upheld the constitutionality of the Fugitive Slave Act of 1793.

We shall look at the details of Chief Justice Whiton's efforts in this regard in the next post.

Ableman v. Booth XIII: Edward Vernon Whiton

It's time to return to Sherman Booth. To get you back into the swing, let me introduce the next actor we'll encounter: Edward Vernon Whiton, the Chief Justice of the Supreme Court of Wisconsin.

Chief Justice Whiton was born in Massachusetts in 1805. He earned his law degree there and moved to Wisconsin in 1837. A Whig and later a Republican, Whiton served in the territorial legislature and at the state constitutional convention. When Wisconsin achieved statehood in 1848, he was elected a state circuit court judge and served ex officio as a justice of the State Supreme Court. When the Supreme Court was reorganized as a separate body in 1853, he became its first Chief Justice. He served in that position until his death in 1859. Brief biographies are available here and here

Time permitting, tomorrow I will discuss Chief Justice Whiton's opinion.

Al Gore Says "Ouch!"

He, like Jimmy Carter, doesn't want to debate. On the other hand, a commenter makes the point that he is just the front man/talking head for the documentary, so maybe he is not the one to do the debating.

Putting that aside, the post to which I am referring, by Jonathan Adler at the Volokh Conspiracy, is one of the most interesting and informative items I have read about the global warming issue. I haven't followed them yet, but it appears that the comments have a number of links worth pursuing.

The Mythology of Sherman's March

Kevin Levin at Civil War Memory points out a fine article by Mark Grimsely entitled "'Thieves, Murderers, Trespassers': The Mythology of Sherman's March." A principal point of the article is that the stories of widespread rape and murder during the march are simply not true.

Another historian who has made a similar point is Victor Davis Hanson, in an article entitled "Sherman's War." Professor Hansen observes:

"As for the charge that Sherman's brand of war was amoral, if we forget for a moment what constitutes 'morality' in war and examine acts of violence per se against Southern civilians, we learn that there were few, if any, gratuitous murders on the march. There seem also to have been less than half a dozen rapes, a fact acknowledged by both sides. Any killing outside of battle was strictly military execution in response to the shooting of Northern prisoners. The real anomaly seems to be that Sherman brought more than sixty thousand young men through one of the richest areas of the enemy South without unchecked killing or mayhem. After the war a Confederate officer remarked of the march through Georgia: 'The Federal army generally behaved very well in this State. I don't think there was ever an army in the world that would have behaved better, on a similar expedition, in an enemy country. Our army certainly wouldn't.'"

Justice Lumpkin's Bill of Rights VI

In my first post about Campbell v. Georgia, I briefly reviewed the facts but said that they contained a great irony. Now it's time to pull back the curtain.

Mays was beaten and stabbed late Saturday night or early Sunday morning. He died late Monday. On Monday, while he knew he was dying, he told people who were attending him that it was Campbell who had assaulted him. The people who heard Mays' statements testified to them in court. It was the admission of these hearsay statements -- the statements by witnesses as to what Mays had supposedly told them -- that Campbell contended violated the Confrontation Clause.

The irony lies in the fact that Justice Lumpkin ultimately concluded that the statements were hearsay -- that is, the witnesses had testified about unsworn, out-of-court statements allegedly made by Mays, introduced for the purpose of demonstrating the truth of those unsworn, out-of-court statements (i.e., that it was Campbell who had assaulted and thus ultimately caused the death of Mays). Nonetheless, the court concluded, the statements were admissible because they fell within a long-recognized exception to the hearsay rule, known as the "dying declarations" exception. (The rationale of the exception is that a person who is about to die, and who knows that he is about to die, is likely to be telling the truth.) The court therefore affirmed Campbell's conviction of voluntary manslaughter.

In short, all of Justice Lumpkin's ringing oratory was utterly unnecessary dictum. The court could (and should) have avoided the constitutional issue altogether. It could simply have said, "There is no need to decide, or even discuss, whether the Confrontation Clause, or some similar principle of fundamental law, applies to this case, because the admission of the statements does not and would not violate the Clause or principle."

The image is of the Joseph Henry Lumpkin house in Athens, Georgia, which he owned from 1843 until his death.

The Fate of Their Country

At H-Net, a historian I have not heard of, Graham H. Peck, has written an excellent review of Michael Holt's book The Fate of Their Country. Professor Peck's conclusion is exactly correct: "[T]he contemporary rival schools of Civil War causation might not be as far apart as is sometimes thought. Just as Holt acknowledges, to a degree, the powerful interplay between politicians and public attitudes toward slavery, historians who emphasize the slavery issue must explain how contingent factors, including political ones, influenced the coming of the war."

Both the review and the book are highly recommended.

Justice Lumpkin's Bill of Rights V

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.

Justice Lumpkin's Bill of Rights IV

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.

Review Your Bank Statements!

The Baseball Crank has a post about a baseball player whose funds were embezzled from his bank checking account. When the player opened the account, he signed forms by which he agreed to the bank's rules and regulations concerning the account. He also instructed the bank to hold his monthly account statements, i.e., not to send them to his home or to a third party (such as an accountant).

The player ordered checks, which were sent his residence. There, an "employee" of the player -- not the bank -- obtained possession of them and began forging checks, depleting the account (and other accounts tied to the checking account).

When the player ultimately discovered the embezzlement and loss, he sued the bank. The bank asserted as a defense (among others) that the player's claim was barred because he had failed to report the loss within thirty days after the bank made the first bank statement reflecting the fraud available to him, as required by the bank's rules and regulations. The court upheld this defense and dismissed the player's suit. It was irrelevant that the player had not actually received the monthly statements, because it was he who had instructed the bank not to send them.

Commenters at the Crank's site are outraged, although much of the outrage may be attributable to the fact that they think that the forger was a bank employee. He was not. The forger was the player's employee. That said, however, people should know that this scenario happens over and over again, and the decision is utterly routine. Virtually all banks have similar rules requiring checking account customers to report irregularities within sixty or thirty days (sometimes less), and courts regularly enforce these rules.

Small businesses are most often the victims of such frauds, usually by their bookkeepers, but the rules apply to individual checking account customers as well. Even where the facts are sympathetic to the account holder (the invalid senior whose life savings are stolen by a home healthcare attendant, for example), the account holder almost always loses.

The moral of the story: review your monthly bank account statements!

Finally, it's worth noting that the player did not sue the bad guy, his former employee who forged the checks. Why? I'd guess it is because the forger had fled or had no money. In these situations, the bad guy (or gal -- and there are many) is often a gambler, drug user, or other species of extreme spendthrift. The stolen funds are almost always spent and unrecoverable.

Justice Lumpkin's Bill of Rights III

Justice Lumpkin was a smart man and good lawyer. He acknowledged that the Supreme Court had ruled, in Barron v. Baltimore, that the Bill of Rights did not apply to the States. He did not so much disagree as conclude that that was irrelevant. He cited and quoted from a number of opinions of State courts that had held that States were bound to observe certain fundamental principles. His favorite quote was from a Maryland court, for he emphasized the entire passage:

"'Independent of that instrument [the federal Constitution], and of any express restriction in the Constitution of the State, there is a fundamental principle of right and justice, inherent in the nature and spirit of the social compact (in this country at least,) the character and genius of our governments, the causes from which they sprang, and the purposes for which they were established, that rises above the restraints and sets bounds to the power of legislation, which the Legislature cannot pass, without exceeding its lawful authority. It is that principle which protects the life, liberty and property of the citizen, from violation, in the unjust exercise of legislative power.'"

The picture above is of Eugenius Aristides Nisbet, one of Justice Lumpkin's colleagues on the Georgia Supreme Court from its establishment in 1845 until 1853, who concurred in the decision.

Justice Lumpkin's Bill of Rights II

Justice Lumpkin went on to explain why he believed that the Bill of Rights -- or at least the principles set forth in the Bill -- applied to the States:

"It was not because it was supposed that legislation over the subjects here enumerated might be better and more safely entrusted to the State governments, that it was prohibited to Congress. It was to declare to the world the fixed and unalterable determination of our people, that these invaluable rights which had been established at so great a cost of blood and treasure, should never be disturbed by any government . . ..

. . . What confidence will be reposed in a State government, whose legislation should be characterized by acts which disgrace the most tyrannical epoch of the British monarchy? A free people would instantly and indignantly reject it and its authors."

Justice Lumpkin then returned to the theme of "State rights:"

"While this Court yields to none in its devotion to State rights, and be the first to resist all attempts at Federal usurpation, it feels itself called on by the blood of the many martyrs, who nobly died to maintain the great principles of civil liberty contained in these amendments -- our American Magna Charta -- to stand by, support and defend the rights which they guarantee, against all encroachments, whether proceeding from the National or State governments."

Joseph Henry Lumpkin and The Bill of Rights

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.

Americanization of the Common Law

Last week, J.L. Bell at Boston1775 said that he had not read William E. Nelson's Americanization of the Common Law: The Impact of Change on Massachusetts Society, 1760-1830 because he expected that, since he was not a lawyer, he would not have the necessary background. This has been gnawing at me. Professor Nelson's book offers some brilliant insights, and it is a shame if historians are avoiding it.

It may be a historian with no legal training would not understand parts of the book, or rather find portions of insufficient interest to be worth the investment of time and effort necessary to master them. Nonetheless, I think the book is worth reading, even if you skim portions.

Let me describe briefly one way in which Americanization really deepened my understanding of colonial political culture. The Massachusetts legal system was built almost entirely on juries. No one could be criminally convicted, or held civilly liable, unless a jury said so. This contributed to the fact that British rule over Massachusetts was singularly weak. Britain could pass whatever laws it wanted, but they could be enforced only through Massachusetts juries. This gave rise to the possibility of "jury nullification", the phenomenon of juries refusing to convict or find civil liability because they refuse to follow the law.

We have jury nullification occasionally. Think of the OJ case, where the jurors refused to convict OJ despite overwhelming evidence of his guilt. However, today jury nullification is rather rare, because we have built into the legal system a number of procedures that are designed to minimize it. Among other things (and in no particular order): the judge presiding at a trial instructs the jurors, usually in great detail, as to what the law is and tells them they must follow it; lawyers are not permitted to tell jurors what the law is or that it is different from what the judge says it, nor can lawyers argue to juries that they can or should not convict even if the judge's instructions suggest that they should (that is, lawyers may not tell or suggest to juries that they have the power of jury nullification). There are also various procedural devices that take away cases from juries where the facts are clear (such as summary judgment) or where juries have ignored the evidence (motions for new trials or judgment notwithstanding the verdict).

Eighteenth Century Massachusetts, on the other hand, had a legal system that had jury nullification built into its core. Trials were presided over by multiple judges, who often gave conflicting legal instructions, or instructions that were so vague and general as to be virtually meaningless. Lawyers routinely argued the law as well as the facts -- that it, they were in effect free to tell jurors that the jurors had absolute discretion to decide that someone was not guilty or not liable. There was virtually no way to avoid a jury trial or overturn a jury verdict after it was rendered.

In other words, the law on a day-to-day basis was whatever local juries said it was. This in turn meant that British rule was extraordinarily weak. If a law was unpopular, as a practical matter it would not be enforced. Conversely, the discretion of juries reinforced community pressure and customary, local rules of conduct.

Professor Nelson's book is filled with such revelations. For someone steeped in colonial and early 19th Century American history, I heartily recommend it. Again, you may wind up skimming some portions, but I think you'll still find it valuable.

The Fourteenth Amendment and Incorporation XII: Robert Safford Hale

OK, let’s discuss an opponent of the Fourteenth Amendment – or at least the version of the amendment as it existed in late February 1866. One of the principal opponents of that early version in the House was Robert Safford Hale (R. – NY). Hale hailed (sorry, I can’t help myself!) originally from Vermont (born 1822). He moved to Elizabethtown, New York (near Lake Champlain), opened a legal practice there in 1847 and later became a judge. The 39th Congress was his first term in Congress. He was one of the most conservative Republicans in the House.

Hale spoke against Bingham’s proposed amendment as it then stood on February 27, 1866. Rep. Hale’s remarks concerning the amendment as then proposed focused on the “equal protection” language, not on the “privileges and immunities” language, which I have bracketed for sake of clarity:

“The Congress shall have power to make all laws which shall be necessary and proper to secure [to the citizens of each State all privileges and immunities of citizens in the several States, and] to all persons in the several States equal protection in the rights of life, liberty and property.”

Rep. Hale construed this language as “a grant [to Congress] of the right to legislate for the protection of life, liberty, and property, simply qualified with the condition that it shall be equal legislation.” Granting Congress such power, he argued, would turn the Constitution on its head. Rather than being limited to specific, enumerated powers, Congress would be granted sweeping powers to legislate on almost every subject.

In the course of his speech, Rep. Hale turned to the Bill of Rights. His explanation of his understanding of the Bill demonstrates that Rep. Hale believed that the Bill of Rights was already binding on and enforceable against the States in court. He had no problem with that idea. He objected only to granting Congress the power to enforce the Bill of Rights through general legislation.

Rep. Hale began by setting forth his understanding of the Bill of Rights. It protected citizens by limiting Federal and State powers. What the Bill did not do was grant Congress power to enact legislation to enforce its provisions:

“Now, what are these amendments to the Constitution, numbered one to ten . . .. What is the nature and object of these articles? They do not contain, from beginning to end, a grant of power anywhere. On the contrary, they are all restrictions of power. They constitute the bill of rights, a bill of rights for the protection of the citizen, and defining and limiting the power of Federal and State legislation. They are not matters upon which legislation can be based.”

That did not mean, however, that the Bill of Rights conveyed rights without remedy. “Throughout they provide safeguards to be enforced by the courts, and not to be exercised by the Legislature.”

Rep. Hale obviously was unaware of Barron v. Baltimore. Rep. Bingham, who was aware of that case, jumped up and rudely challenged this assertion:

“I ask him [Mr. Hale] now if he knows of a single decision in which the sufficiency of the Constitution to secure to a party aggrieved in his person within a State the right to protection by the prosecution of a suit, which by the organic law of the State was denied to him, has ever been affirmed, either by Federal statute or Federal decision, or whether the nation has not been dumb in the presence of the organic act of a State which declares that eight hundred thousand natural-born citizens of the United States shall be denied the right to prosecute a suit in their courts, either for the vindication of a right or the redress of a wrong? I want an answer.”

In response, Rep. Hale admitted that he did not know of such a case. He simply assumed that the Constitution somehow protected the liberties of citizens. I quote the response in full because it is so striking:

“The gentleman will always get an answer when he asks me a question. It is never necessary for him to accompany his questions with a warning.

“I have not been able to prepare a brief for this argument, and therefore I cannot refer the gentleman to any case. As I never claim to be a very learned constitutional lawyer I have no hesitation in making the admission that I do not know of a case where it has ever been decided that the United States Constitution is sufficient for the protection of liberties of the citizen. But still I have, somehow or other, gone along with the impression that there is that sort of protection thrown over us in some way, whether with or without the sanction of a judicial decision that we are so protected. Of course, I may be entirely mistaken in all this, but I have certainly somehow had that impression.”

After another Representative joined in to ask Rep. Bingham whether he was aware of such a case, Bingham said that was “ready to answer the gentleman now, and to produce such a decision” – almost certainly Barron and Livingston v. Moore, the cases that he cited and quoted from the next day (see my post immediately below). Hale, however, objected that this was a “side issue” and stated that he preferred to continue with his speech.

Shortly thereafter, Hale nonetheless returned to the issue of court enforcement of the Bill of Rights. Yet again, he made clear that he understood that the Bill applied to the States and was enforceable against the States in court:

“If he [Rep. Bingham] claims that those provisions of the constitution or the laws of Oregon [to which Bingham had referred] are inconsistent with the bill of rights contained in the Constitution of the United States, then I answer that his remedy is perfect and ample, and the courts may be appealed to vindicate the rights of the citizens, both under civil and criminal procedure. Their powers are ample; it never was questioned, it never could be questioned, that the decrees of the courts, in all the States at least where slavery did not exist, have been thoroughly and sufficiently enforced.”

In short, even the most conservative Republican, one who clearly believed in a federal government of limited powers, believed that the Bill of Rights was binding on the States and thought that it was perfectly natural to assume that citizens could vindicate those rights in court.

No wonder, then, that the speeches of Rep. Bingham and Senator Howard explaining the Privileges or Immunities Clause elicited few if any objections. So far as I'm aware, no Republican – including Rep. Hale -- stated during the debates that he believed that the Bill of Rights did not and should not apply to and restrict the States. (As I’ve noted before, Radicals complained that the amendment did not go even further and grant political rights, particularly the right to vote, as well as civil rights.) Rep. Hale and a handful of other Republican legislators objected only to granting Congress sweeping enforcement powers.

The final version of the amendment passed by the House (and Senate) in June 1866 may have alleviated some or all of Rep. Hale’s concerns. The enforcement provision of the final version was placed in a separate Section 5. Although it affirmed the enforcement power of Congress, it did not contain the language that Rep. Hale found most offensive. It stated simply: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” Perhaps also, Rep. Bingham’s quotations from Barron and Livingston v. Moore and the need to overrule Dred Scott ultimately convinced Rep. Hale that the amendment was essential to "vindicate the rights of the citizens." For whatever reason, Hale voted for the final version of the amendment.

All quotes are from The Congressional Globe, 39th Congress, First Session, pp. 1063-65 (Feb. 27, 1866). All emphasis within the quotes is mine. Easy access to the Globe for the 39th Congress may be found here.

The Fourteenth Amendment and Incorporation XI: John A. Bingham

My last post inspired me to return to my discussion of the Fourteenth Amendment and Incorporation.

John A. Bingham (R. – Ohio) was a member of the Joint Committee on Reconstruction and the principal author of the Amendment. By contemporary Republican standards, he was no radical. Several modern scholars have ranked him as moderate or mildly conservative in relation to his Republican colleagues. He gave several speeches. To keep this post manageable, I will focus here on one of them, given on February 28, 1866.

At that point, Section 1 of the proposed Amendment had not reached its final form. As of February 28, 1866, it read as follows:

“The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.”

In his speech of February 28, Rep. Bingham made clear that he regarded the amendment as giving Congress the power to enforce the Bill of Rights against the States. After a brief introduction, he squarely stated the issue as follows:

“The proposition pending before the House is simply a proposition to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution today.”

He then turned to the question why the amendment was even necessary. Republicans almost universally believed that the Bill of Rights already applied to the States, and that Congress naturally had the power to enforce it. Unlike his less sophisticated colleagues, however, Bingham was aware of Barron v. Baltimore and its progeny. He pointed directly to Barron and another Supreme Court case, which had held that provisions of the Bill of Rights (the Fifth Amendment and the Seventh Amendment) were not binding on the States:

“A gentleman on the other side interrupted me [in debate recently] and wanted to know if I could cite a decision showing that the power of the Federal Government to enforce in the United States courts the bill of rights under the articles of amendment to the Constitution had been denied. I answered that I was prepared to introduce such decisions; and that is exactly what makes plain the necessity of adopting this amendment.

“Mr. Speaker, on this subject I refer the House and the country to a decision of the Supreme Court, to be found in 7 Peters, 247, in the case of Barron vs. The Mayor and City Council of Baltimore, involving the question whether the provisions of the fifth article of the amendments to the Constitution are binding upon the State of Maryland and to be enforced in the Federal courts. The Chief Justice says:

“’The people of the United States framed such a Government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this Government were to be exercised by itself; and the limitations of power, if expressed in general terms, are naturally, and we think necessarily, applicable to the Government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments, framed by different persons and for different purposes.

“’If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States.’

“I read one further decision on this subject – the case of the Lessee of Livingston vs. Moore and others, 7 Peters, page 551. The court, in delivering its opinion, says:

“’As to the amendments of the Constitution of the United States, they must be put out of the case, since it is now settled that those amendments do not extend to the States; and this observation disposes of the next exception, which relies on the seventh article of those amendments.’”

Invoking the ghost of Daniel Webster, Bingham then explained that he believed the Supreme Court was wrong, but only in part. Alluding to the Supremacy Clause and the Oaths Clause (Article VI, Clause III, which requires that all State officials “shall be bound by Oath or Affirmation, to support this Constitution”), Bingham explained that, in his view, the Constitution bound the States just as it bound the Federal government. The problem, Bingham believed, was that the Constitution contained no effective enforcement mechanism that penalized State officials for violating their oaths. There was a “right”, but no “remedy,” making the Bill of Rights “a mere dead letter.” The purpose of the amendment was to supply that enforcement mechanism.

[Aside: We have seen this “right but no remedy” argument, in a different context, before. Before the War, Salmon Chase and others had argued, in effect, that the Fugitive Slave Clause conveyed a right on the slave states, but that they had no remedy if free states refused to turn over fugitive slaves.]

“Why, I ask, should not the ‘injunctions and prohibitions,’ addressed by the people in the Constitution to the States and the Legislatures of States, be enforced by the people through the proposed amendment. By the decisions read, the people are without remedy. It is admitted in the argument of Mr. Webster, just cited, that the State Legislatures may by direct violations of their duty and oaths avoid the requirements of the Constitution, and thereby do an act which would break up any government.”

[I would add here that Bingham’s understanding of the Constitution was almost certainly wrong as a historical matter. Neither the Supremacy Clause nor the Oaths Clause bound State legislators to pass State laws that did not violate the Bill of Rights (or any other requirements of the Constitution that did not expressly apply to the States). That, however, is irrelevant. Bingham’s understanding, or misunderstanding, was a common one; indeed it represented the mainstream Republican view.]

Bingham then continued as follows, in a passage that emphasized that the proposed amendment supplied no new rights (because the Bill of Rights, properly construed, already applied to the States), but rather an enforcement mechanism for those rights (emphasis added):

“Those oaths have been disregarded; those requirements of our Constitution have been broken; they are disregarded to-day in Oregon [more about Oregon in another post]; they are disregarded to-day, and have been disregarded for the past five, ten, or twenty years in every one of the eleven States recently in insurrection.

“The question is, simply, whether you will give by this amendment to the people of the United States the power, by legislative enactment, to punish officials of States for violation of the oaths enjoined upon them by their Constitution? That is the question and the whole question. The adoption of the proposed amendment will take from the States no rights that belong to the States. They elect their Legislatures; they enact their laws for the punishment of crimes against life, liberty, or property; but in the event of the adoption of this amendment, if they conspire together to enact laws refusing equal protection to life, liberty, or property, the Congress is thereby vested with power to hold them to answer before the bar of the national courts for their violation of their oaths and of the rights of their fellow-men. Why should it not be so? That is the question. Why should it not be so? Is the bill of rights to stand in our Constitution hereafter, as in the past five years within eleven States, a mere dead letter? It is absolutely essential to the safety of the people that it should be enforced.

* * *

“Is it not essential to the unity of the people that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States? Is it not essential to the unity of the Government and the unity of the people that all persons, whether citizens or strangers, within this land, shall have equal protection in every State in this Union in the rights of life, liberty and property?”

A few minutes later, Bingham was even more explicit as to what his understanding of the Constitution was. In the process, he made clear that he equated “the privileges and immunities of citizens” with “these provisions of the bill of rights.” Specifically citing the Supremacy Clause and the Oaths Clause, Bingham explained that the Framers had placed an obligation in the Constitution – the obligation of State officials to honor the Constitution. They had even placed in the Constitution an enforcement mechanism of sorts – the final portion of the Supremacy Clause, which provided that “the Judges in every State shall be bound thereby [i.e., by the Constitution], any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” What the Framers had failed to do was provide an effective enforcement mechanism, namely power in the Congress to enforce those obligations and rights. The purpose of the proposed amendment was to supply Congress with that power:

“With these provisions in the Constitution for the enforcement in every State of its requirements, is it surprising that the framers of the Constitution omitted to insert an express grant of power in Congress to enforce by penal enactment these great canons of the supreme law, securing to all the citizens in every State all the privileges and immunities of citizens, and to all the people all the sacred rights of person – those rights dear to freemen and formidable only to tyrants – of which the fathers of the Republic spoke, after God had given them the victory, in that memorable address in which they declared, ‘Let it be remembered that the rights for which America has contended were the rights of human nature?’ Is it surprising that essential as they held the full security to all citizens of all the privileges and immunities of citizens, and to all the people the sacred right of person, that having proclaimed them they left their lawful enforcement to each of the States, under the solemn obligation resting upon every State officer to regard, respect, and obey the constitutional injunction?

“What more could have been added to that instrument to secure the enforcement of these provisions of the bill of rights in every State, other than the additional grant of power which we ask this day? Nothing at all.”

The New York Times reported a summary of Bingham's February 28, 1866 speech and specifically noted Bingham's belief regarding the purpose of the proposed Amendment. "This was simply a proposition to arm the Congress of the United States ... with power to enforce the Bill of Rights as it stood in the Constitution." N.Y. Times, Mar. 1, 1866, at 5.

Later in 1866, while the Fourteenth Amendment was awaiting ratification by the States, Bingham had his speech published as a separate pamphlet. In the title, the pamphlet specifically described the proposed amendment as one “to Enforce the Bill of Rights.” (The full title is, John A. Bingham, One Country, One Constitution, and one People, Speech of Hon. John A. Bingham, of Ohio, in the House of Representatives, Feb. 28, 1866, in Support of the Proposed Amendment to Enforce the Bill of Rights (Washington, Printed at the Congressional globe [sic] office, 1866)).

Salmon Chase and The Fugitive Slave Clause

I don't know whether Abram Smith, Sherman Booth or Byron Paine ever met Salmon Portland Chase, but they had clearly absorbed Chase's arguments about the constitutionality of the Fugitive Slave Acts. You will recall that one of Associate Justice Smith's principal arguments was that the Fugitive Slave Clause did not delegate any power to Congress. The Clause was simply a compact between the States, unenforceable by Congress.

Well, this was exactly the argument that Chase had been making and popularizing since the late 1830s, as part of his thesis that the founders loathed slavery and provided in the Constitution that the federal government should have nothing to do with it:

"Chase . . . tried to interpret the [fugitive slave] clause almost out of existence. The section . . ., Chase pointed out, differed from other clauses in neglecting to delegate to Congress power to enforce it by appropriate legislation. Since all powers not delegated to the federal government were reserved to the states, Chase insisted that the clause was really a compact between the northern and southern states, and that 'each State must judge for itself as to the character of the compact, and the extent of the obligation created by it.' The laws of 1793 and 1850 involving the federal government in the capture of fugitives were unconstitutional, since Congress had no power on the subject."

Eric Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party Before the Civil War (Oxford Univ. Press 2d Ed. 1995) at 77.

Sound familiar?

This helps us understand, by the way, why many members of the Reconstruction Congress believed that it had the power to enforce the Thirteenth Amendment via civil rights legislation, even though that amendment contained no provision specifically delegating power to Congress to do so. It also helps explain why many members of the Reconstruction Congress believed that Section 1 of the Fourteenth Amendment was unnecessary. In Prigg v. Pennsylvania (1842), the Supremes had held -- contrary to Chase's arguments, that the Fugitive Slave Act of 1793 was constitutional: the Fugitive Slave Clause necessarily gave Congress, by implication, the power to enforce it. Members of the Reconstruction Congress reasoned or assumed that the Thirteenth Amendment similarly carried the necessary implication that Congress had the power it enforce it.

It was John Bingham of Ohio who drove his colleagues to include Section 1 in the Fourteenth Amendment because he was one of the few who understood that the implication of Barron v. Baltimore was that Congress did not have the power to enforce the provisions of the Bill of Rights against the States.

The Lessons of Vietnam?

Over at Millard Fillmore's Bathtub, Ed Darrell is beginning a series of posts on "Applying the Lessons of Vietnam in Afghanistan and Iraq". He begins by asking the right question: "Can we even say, with assurance, what those lessons are?" Unfortunately, he then does not answer it, or rather assumes that the answer is "yes," for he immediately launches into what he believes the first of those lessons is.

I say "unfortunately," because that first question is the crucial one. It is becoming clear that the answer is either "no" or "yes, but those lessons may well be exactly the opposite of those assumed by conventional wisdom."

Exhibit A is Mark Moyar's book, Triumph Forsaken: The Vietnam War, 1954-1965 (Cambridge University Press 2006). Mackubin Thomas Owens, Professor of National Security at the Naval War College, has written a glowing review in the Weekly Standard, "A Winnable War: The Argument Against the Orthodox History of Vietnam", which will provide some idea of Moyar's thesis.

You can't apply the lessons until you know what the lessons are. If Mr. Moyar and others are correct, most or all of the received wisdom is wrong -- and it makes a difference. Just today, for example, the Christian Science Monitor has published an article by Professor Owens in which he draws on Mr. Moyar's book. The Democrats won't like the title: "Why Bush's War Plan Can Work".

Jimmy Carter Says "Ouch!" Again and Again

At the Volokh Conspiracy: "Did Jimmy Carter Endorse Palestinian Terrorism?"

And Glenn Reynolds at Instapundit flags stories in the WSJ and elsewhere reporting that "[f]ourteen members of a Carter Center advisory board, who worked to build support for the human rights organization started by former U.S. President Jimmy Carter and his wife, have resigned in protest over Carter's latest book."

Take the "Name That Court" Quiz

Sorry, I've been sidetracked this week. Blogging should resume over the weekend.

In the meantime nobody has taken a stab at answering the question I posted asking what antebellum court or judge wrote a surprising anti-states rights quote.

I will probably answer that one over the weekend, so take a guess now!

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."

Millard Fillmore Update

In a post the other day I reported that I had been unable to find a source for a quote frequently attributed to Millard Fillmore: "May God save the country, for it is evident that the people will not."

I was concerned that someone with half-decent research skills would immediately demonstrate that I was utterly incompetent. I'm therefore pleased to see that Professor David Parker at Another History Blog has reported that he has not turned up a source either. Whew!

Fore!

Can you believe it? I played golf today, in northwest New Jersey. It's January 7th, for heaven's sake!

Political Culture and Secession in Mississippi

Many books about the antebellum period and the period leading to secession go over the same timeline and events: the Mexican War connects to the Wilmot Proviso, which connects to the Compromise of 1850, which connects to the Kansas-Nebraska Act . . . you get the picture.

It's really nice to run into books that dig deeper, usually focusing on a particular state or region within a state. Christopher J. Olsen's fine book, Political Culture and Secession in Mississippi: Masculinity, Honor and the Antiparty Tradition, 1830-1860 (Oxford University Press 2000) is such a work. What I really like about it is that it puts you on the ground and helps explain, on a very practical level, how local institutions worked.

Rather than provide a generalized review, I thought I'd imitate Olsen's methodology by summarizing just a few pages, focusing on voting. At pages 125-31, Olsen provides a graphic description of the mechanics of voting in antebellum Mississippi that is a joy to read.

In rural areas, the polling station was often at a plantation. The board of police, a countywide elective body, appointed inspectors and other election officials, who were usually leading local men. For example, in the fourth precinct in Bolivar County in 1855, the poll was held at the house of the neighborhood's leading citizen, "Squire" William Vick. Squire Vick and two other planters served as election inspectors. Each voter walked through the gate of Squire Vick's "Nitta Yuma" plantation and approached the front veranda, where the inspectors greeted them and probably chatted with them. Squire Vick, as host, almost certainly treated voters to food and drink.

The voters then cast their votes under the watchful eyes of the inspectors and handed their ballots to the return officer, the nephew of another planter, for placement in the ballot box, and then gave their names to clerks. Because ballots of different candidates were usually different sizes and often different colors, voting was not secret. Functionally illiterate voters -- from 10 to 25 percent or more -- might ask for help filling out names of candidates for local offices, whose names were not on the ballots.

What wonderful images! You really get a feel for the process. The voters are free men who approach to exercise the quintessential right of free men. They are treated as free and equals by the leading citizens of the area, who may want their votes in the future. And yet the entire ritual subtlely but clearly emphasizes the wealth, importance and authority of the leading men. Professor Olson comments:

"All of these considerations betray the importance of the voting process as a public ritual, and underscore its many-layered meanings and implications. Especially in small rural neighborhoods, planter-inspectors potentially held vast power. Not everyone voted alike, but most did -- some out of genuine class bonding or a shared masculine perspective, but others because they felt pressured by Squire Vick and his friends. . . . Certainly the record implies numerous limitations on freedom of choice and demonstrates that deference and intimidation survived the movement to printed ballots and mass democracy. At the very least, scenes like those on Vick's veranda discredit notions of frontier democracy or the rampant egalitarianism that supposedly made elite hegemony or inherited hierarchy untenable in the Old Southwest."

Abe Had A Patent?

This is news to me: according to a post at Metafilter, "In 1849, Abraham Lincoln was awarded Patent No. 6469 . . . for a device for raising stuck riverboats off sand bars."

To Kill A Mockingbird

A Washington Post article on the adoption by Virginia libraries of the practice of ruthlessly culling unread books from their collections is getting a fair amount of play. Here's the Captain's Quarters version. I noticed with particular sadness that one book that hasn't been borrowed in two years from one library system is Harper Lee's achingly beautiful To Kill A Mockingbird. How terrible.

But then I wondered. Perhaps people are reading it, but via purchase rather than library loan. I haven't been to the library in decades (except once to get out of the rain); I don't even have a library card. If I wanted to read a great American novel that I didn't already have, I'd buy it, probably online.

The fact that the libraries seem to be replacing culled books with Stephen King's latest work may knock a hole in my theory: if I wanted to read the latest Stephen King book, I'd buy that too. On the other hand, the very latest Stephen King book is presumably available only in hardback, and some may not want to waste the money and shelfspace on a fairly expensive item that they know they will read only once.

Happy Birthday, President Fillmore!

Over at Millard Fillmore’s Bathtub, Ed Darrell included, in a post anticipating the thirteenth president’s birthday tomorrow, the following quote attributed to Fillmore: “May God save the country, for it is evident that the people will not.”

As I commented there, this quote does not sound like Fillmore. He seems to have shared the faith in “the People” common in the mid Nineteenth Century, and I’ve never detected that he was cynical or sardonic. As my birthday present to Fillmore, I set about to find the source.

The quote is, indeed, all over the web, but I was unable to find a source attributed anywhere. The quote is not in Bartlett’s (16th Edition 1992), nor is there a reference to it in Elbert Smith’s The Presidencies of Zachary Taylor and Millard Fillmore. The bottom line: I can’t find even a purported source, much less a reliable one.

If Fillmore did speak the words, I would guess that he did so later in life, perhaps during the election of 1860 or as the southern states were seceding. As I mentioned in an earlier post, he became depressed after the deaths of his wife and daughter in 1853 and 1854, and he was resoundingly defeated in 1856. I suppose it is possible that the perceived foolishness of the people in voting for a purely sectional candidate, Lincoln, or watching the dissolution of his beloved Union, triggered a bitter observation.

But at this point, the authenticity of the quote remains unproven. Fillmore deserves the benefit of the doubt until a reliable source surfaces. Happy 207th Birthday, Mr. President!

Stephen Breyer Says "Ouch!" Again

Having been kicked around very nicely by Judge McConnell, Justice Breyer now gets politely trashed one more, this time by Judge Richard A. Posner. Here's a sample:

"The bricolage [that Justice Breyer has assembled] is as ingenious as it is complex, but the curious consequence of such ecclecticism is that it puts the judge in approximately the position he would occupy if had no constitutional theory. For couldn't Justice Breyer pull a stick out of his bundle to justify any decision that he wanted to reach? It's not as if the sticks have different weights; each is available to tip the balance in a particular case."

Judge Posner's review, "Justice Breyer Thows Down the Gauntlet," 115 Yale Law Journal 1699 (May 2006), may be accessed here.

Update and Mea Culpa: I should have credited Maimon Schwarzschild's post at The Right Coast for leading me to Judge Posner's article, which Professor Schwarzschild calls "politely devastating." In addition, I see that Professor Mike Rappaport has also posted an entry at The Right Coast in which he administers a few more kicks.

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.

Saladin

I learned the other day that Saladin was a Kurd. I had no idea. How ironic!

I ran across this fact while watching a series of lectures on DVD from The Teaching Company called The Era of the Crusades, given by Professor Kenneth W. Harl of Tulane. An excellent introduction if you (like me) know little or nothing about that age. Even if you have more backrground than I, I suspect that the program would be worthwhile. Professor Harl was originally a classicist and spends a good deal of time on the Byzantines, whom I suspect get short shrift in many accounts.

The series was on sale when I bought it. Unfortunately, if you want to take my recommendation, it seems to have returned to full price.

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 . . .?”

Ableman v. Booth X: "There Is No Middle Ground"

The second objection that Justice Smith addressed was an intensely practical one. If the federal government was not empowered to enforce the Fugitive Slave Clause, how and by whom would the clause be enforced?

Again, it seems to me that Justice Smith’s answer comes up short. “[R]epudiat[ing] the degrading insinuation that state officers are less faithful to the constitution, than federal officers,” he simply affirmed that “every state officer, executive, legislative and judicial, who takes an oath to support the constitution of the United States, is bound” to enforce it. But what if they do not?

“The simple answer is, that when the state and federal officers become so regardless of their oaths and obligations as either question implies, anarchy or revolution, or both, must supervene, for the government would be a willful departure from the fundamental law of its organization, and the people would be absolved from their allegiance to it.”

To counterbalance this surprising and alarming conclusion, Justice Smith sought to demonstrate that the consequences of the alternative – granting federal power over matters covered by Article IV -- would be even more catastrophic:

“What would be thought . . . should congress pass a law to carry into effect that clause of the fourth article in regard to citizenship [i.e., the Privileges and Immunities Clause]? and declare pains and penalties against any state functionary who should fail to comply? What would be thought if congress should declare it a penitentiary offense, for any executive of a state to refuse to surrender a fugitive from justice? What state would submit to see its chief magistrate dragged before the federal tribunals, on charge of infraction of such a law . . .? And yet the power to legislate at all upon the subject, is assuming supreme and unlimited power over the whole matter. There is no middle ground.”

Ableman v. Booth IX: The Fugitive Slave Act of 1793

One counter-argument that Justice Smith addressed was the fact that in 1793 the Second Congress had passed the Fugitive Slave Act of 1793. Although the 1793 Act imposed fewer burdens than the 1850 Act, it clearly assumed that the federal government had power to deal with fugitive slaves – and thus strongly suggested that the founding generation believed or assumed that the Fugitive Slave Clause granted that power to Congress. Again, I strongly suggest that you take a look at my earlier post discussing Prigg v. Pennsylvania and the 1793 Act.

Justice Smith clearly struggled with this issue. In the end, his explanation is not persuasive. In fairness to him, it may be that there is no convincing explanation. He stated:

“The law of 1793 was in fact but little, if any more than organizing the state authorities for the constitutional duties devolved upon them. For that very reason, it passed without scrutiny . . .. It was practically nothing more than the states themselves carrying out the constitutional compact. Not until it began to be required that the states should yield up all control over these subjects, and a prostration of their sovereignty was demanded, did attention become aroused. No importance, therefore, can justly be attached to the fact that this act was passed by an early congress and was signed by the father of his country, and was acquiesced in by the states and people. It is a remarkable fact that the most startling deviations from strict constitutional limits occurred in the very earliest years of the republic. So it must always be. But time, discussion, and experience have heretofore proved adequate correctives. Added to these, state sovereignty jeopardized, federal encroachment apprehended, and consolidation menacing, can hardly fail to accomplish the desired ends.”