Monday, February 26, 2018

A Second Dred Scott Case?

Jonathan and Juliet Lemon (misspelled as Lemmon in the litigation described in this post) arrived in Manhattan on November 5, 1852, disembarking from the steamer they had taken from Norfolk, Virginia.  The Lemons, who lived at the southern end of the Shenandoah Valley, were in the process of emigrating to Texas where they planned to start a new life.  Booking passage to New Orleans on the steamer Memphis, scheduled to leave the next day, the Lemons stayed at a boarding house that night.  The Lemons did not embark the following morning, instead being plunged into a legal process that would continue almost up to the outbreak of the Civil War more than eight years in the future, and be covered by newspapers nationwide.
(Juliet Lemon in later life; all illustrations from common-place)

The Supreme Court's 1857 decision in the Dred Scott case was one of the events contributing to the outbreak of the Civil War four years later.  Widely considered the worst decision in the history of the Supreme Court, Chief Justice Taney's concluded*:
(1) Negroes were not citizens of the United States and therefore unable to bring suit in a federal court [this applied to all Negroes slave or free]
(2) The Missouri Compromise provisions regarding slavery were unconstitutional since Congress had no power to forbid slavery in the territories.
Justice Taney believed his decision would, once and for all, resolve the issue of slavery.  Instead, it further inflamed the already volatile debate.  For many northerners, not just abolitionists, it mean the triumph of the slave oligarchy by making slavery, not freedom, national, and raising the possibility that further court rulings could extend to interfering with the laws of those states which had abolished slavery.  The ruling also had an immediate practical impact - throughout President Buchanan's administration the U.S. State Department refused to issue passports to native born free blacks on the grounds they were not American citizens, a ruling reversed by Abraham Lincoln in his first weeks in office.  For more on the convoluted history of the case read Dred Scott's Trial.

The case (styled as Lemmon v NY) created a vehicle by which the abolitionist's worst nightmare, and the slave states fondest dream, might happen.

In New York, Jonathan and Juliet were accompanied by their seven children along with eight enslaved people.  The slaves were Emeline, a young woman with a two year old daughter and two teenage brothers, and Nancy, Emeline's niece, her five year old twin boys and a three year old daughter.

Fifteen years earlier, Juliet Lemon's father, William "Billy" Douglas died, leaving two farms and thirty slaves.  He also left behind thirteen children by three white women, none of whom he married.  Juliet, married to Adam Stewart at the time, ended up with two of the slaves, Emeline (then 7) and Nancy (5).  Soon thereafter, Adam Stewart died, and in 1840 Juliet married Jonathan Lemon.  For unknown reasons, Jonathan became dissatisfied with life in the valley and decided to relocate the family to Texas twelve years later.  Selling his properties to Juliet's brother in law, the Lemons made the 17 day trek to Richmond and then on to Norfolk where they took ship to New York.
(Jonathan Lemon)

Their landing and passage through the streets of New York was observed by Louis Napoleon, a free black and Vice-President of the American and Foreign Anti-Slavery Society.  Probably alerted by crews on docking ships, Napoleon and other society members kept a lookout for imported slaves.

On November 6, Napoleon filed for a writ of habeas corpus with NY Superior Court Judge Elijah Paine Jr.  The filing claimed the blacks accompanying the Lemons were free but that the Lemons were slave traders planning to take the blacks to Texas where they would be sold.  Paine, a distinguished jurist whose father had served as a federal district court judge for 41 years, issued the writ, and the bewildered Lemons found themselves in a legal proceeding.

A hearing was held on November 9 in which the Lemons were represented by pro-slavery local lawyers and the slaves by Erastus Culver of Brooklyn (later appointed Minister to Venezuela by President Lincoln), and John Jay, grandson of the former Chief Justice of the U.S. Supreme Court

Paine issued his written ruling on November 13.  While the Lemons had testified they had no intention of bringing their slaves to New York City, and were merely in transmit, Paine freed Emeline, Nancy and the six younger children.

The Judge reviewed the relevant statutory history.  In 1788 New York prohibited the sale, and  exportation for sale, of slaves and established procedures masters who voluntarily decided to free their slaves.  Eleven years later the state provided for eventual freedom for all children of slaves born after July 4, 1799.  Most important, in 1817, as part of the final abolition of slavery, the state legislature banned the import of slaves into the state, providing six exceptions, one of which allowed slaveowners in transit to be in the state for up to nine months with their slaves, an exception repealed by law in 1841.

Since New York law clearly placed the Lemon's in violation of the statute, Price had to determine whether there was some superseding reason under the provisions of the U.S. Constitution not to enforce its provisions.  He rejected the Lemon's arguments under the Commerce Clause and other sections, by asserting natural law principles.  Natural law doctrine was essential to abolitionist legal theory regarding slavery though it is in disrepute with modern legal scholars, for whom natural law theory undermines the power and authority of the state.

Paine cited the then well-known 1772 English case of Somerset v Stewart, in which Chief Justice Mansfield ruled that under natural law, all men are free, and it is only if there is specific State action to maintain slavery that it can exist.  In abolitionist theory, this meant that in the United States freedom was national, while slavery was local.  Increasingly, Southern slaveowners argued precisely the opposite.

But Price expanded on natural law theory (citations omitted below):
            "But in truth, the discovery that by nature all men are free, belongs neither to England nor France, but is as old as ancient Rome; and the law of Rome repeatedly asserts, that all men by nature are free, and that slavery can subsist only by the laws of the State.
            The writers on the law of nations uniformly maintain the same principle, viz.: that by the law of nature all men are free; and that where slavery is not established and upheld by the law of the State, there can be no slaves.
            The same writers also hold that by the law of nature one race of men is no more subject to be reduced to slavery than other races.
            When we are considering a master and slave in a free State, where slavery is not upheld by law, we must take into view all these principles of the law of nature, and see how they are respectively to be dealt with according to that law; for it will be remembered, that the master can now claim nothing except by virtue of the law of nature. He claims under that law a right to pass through the country. That is awarded to him. But he claims in addition to take his slave with him. But upon what ground? That the slave is his property. By the same law, however, under which he himself claims, that cannot be; for the law of nature says that there can be no property in a slave."
The decision caused immediate outrage across the south.  In their next annual messages the governors of both Virginia and Georgia denounced the court's actions, and the Virginia General Assembly provided appropriations to appeal the decision.

By that time, the Lemons were no longer directly involved.  Judge Paine and other took up a subscription to reimbursement them for the loss of the value of their slaves.  The $5000 raised were provided to the Lemons, who returned to Virginia, in return for their posting a bond under which they agreed that if they prevailed in the appeal, they would formally free their slaves.  This may have been a maneuver by the anti-slavery groups to moot the case before a court could hear the appeal, a strategy that failed.
(Publication of all opinions and proceedings by Horace Greeley, 1860)

In order to protect Emeline, Nancy, and their families arrangements were made to move them to Hartford, CT where they were looked after by local black families.  However, in order to ensure their safety no matter what the courts ultimately decided, they were then moved to Buxton, Ontario in Canada, beyond the reach of American law.

The New York Supreme Court (which is only an intermediate court despite its august name) did not hear the appeal until the fall of 1857.  Two important events occurred in that period which heightened the fervor over slavery.  The first was the 1854 passage of the Kansas-Nebraska Act, which obliterated the Missouri Compromise and gave authority to the doctrine of popular sovereignty under which territories could decide whether to allow slavery.  The result was several years of bloodshed, turmoil, and agitation in Kansas which colored national politics.  The second was the Supreme Court's decision on March 6, 1857 in Dred Scott.

The 1857 appeal was argued for the state by William Evarts, who later became Attorney General under President Johnson, Secretary of State under President Hayes, and Senator.  Opposing him was the pro-Southern, pro-slavery Charles O'Conor.  After the Civil War O'Conor would represent Jefferson Davis when he was imprisoned for two years as the federal government pondered whether to charge him with treason.  Davis was released when it was decided not to bring him to trial.  In December 1857, the Supreme Court upheld Judge Paine's ruling.
US_Slave_Free_1789-1861(From Josh Blackman's blog)

Virginia took an appeal to the highest court in New York, the Court of Appeals.  It was widely anticipated that if that court upheld the lower court rulings, the next step would be an appeal by Virginia to the U.S. Supreme Court.  The Court heard argument in January 1860 with the same attorneys for both parties, although the state had a new young lawyer added to its team; Future president Chester A Arthur.  Another important event had occurred in the interim; John Brown's December 1859 raid on the Federal arsenal at Harper's Ferry, VA intended to spark a slave uprising in the south, an event that played into the white south's deepest fears.

The Appeals Court issued its ruling (20 NY 562) on April 16, 1860, affirming the lower courts by a vote of 5-3.  The majority opinion by Justice Denio closely followed that of Judge Paine and made no reference to the Dred Scott decision.  The lead minority opinion by Justice Clerke directly cited Dred Scott for the proposition that slaves were property.  If slaves are only property than the analysis is rather simple and, as Clerke maintains, the New York statute is unconstitutional and void.  The difficulty, of course, is that slaves were both property and persons, which led to continuing conflict in the pre-Civil War political and legal systems.

Unexpectedly, Virginia did not appeal the New York decision to the U.S. Supreme Court for reasons that still remain unclear.  What we know is that the decision was made by Virginia's new governor, John Letcher, who took office on January 1, 1860.  Letcher's predecessors had aggressively pursued the appeals but Letcher seems more ambivalent.  In the 1840s Letcher had proposed gradual emancipation of slaves and, although he repudiated this position in the 1850s, he was a Douglas Democrat and Unionist during the 1860 elections.  He may have decided not to appeal because a decision either way would have created difficulties for Stephen Douglas' candidacy, and a decision overturning the New York court would have generated a firestorm making compromise on slavery impossible.

Nonetheless, the case remained a sore point for Southern slave owners and was specifically listed as a grievance in South Carolina's Declaration of Secession in December 1860.

After returning to Virginia, the Lemons acquired five more slaves whom they lost during the Civil War.  Jonathan died in 1890, Juliet in 1909.  I have not found information on the later life or descendants of Emmeline and Nancy.

Louis Napoleon lived until 1881.  It is estimated that he may have helped up to 3,000 people escape bondage.

* Although the Court found 7-2 against Scott, there was no single opinion concurred in by a majority of justices.  As a result legal scholars still argue over the legal effect of Taney's opinion which was concurred in by only two other justices.


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