Today in Supreme Court History: February 5, 1793

2/5/1793: Chisholm v. Georgia argued.

Comments

[Frank Drackman]

Case involves 2 "Klingers" (HT Rev Arthur T. Sandusky) No Sovereign Immunity?? They should pass a Constitutional Amendment!

[Dan Schiavetta]

Queen v. Hepburn, 11 U.S. 290 (decided February 5, 1813): Marshall holds that while hearsay can support a claim to property (for example as to boundaries) it can’t as to freedom; statements of people who were now dead that ancestor of mother and child petitioning for their freedom came from England and not Africa were properly excluded; Duvall, in his only written dissent in 24 years on the Court, points out that hearsay on this issue is allowed in his home state of Maryland and states: “The reason for admitting hearsay evidence upon a question of freedom is much stronger than in cases of pedigree or in controversies relative to the boundaries of land. It will be universally admitted that the right to freedom is more important than the right of property. And people of color from their helpless condition under the uncontrolled authority of a master, are entitled to all reasonable protection.” Ironically Duvall himself owned slaves, though he had made his reputation winning slaves their freedom. 7 of the 9 Justices were slave owners, which was the typical situation pre-Civil War.

New Jersey v. Delaware, 291 U.S. 361 (decided February 5, 1934): an original jurisdiction case involving the “twelve-mile circle” on the north end of Delaware, centered on the North Castle courthouse; the Court approves special master report that Delaware owns the Delaware River bed within the circle (one sees on Google Maps that the boundary hugs the New Jersey shore); as is typical in boundary cases, the report has a detailed history of the dispute, going back to Charles II’s grant to William Penn in 1681

People v. Compagnie Generale Transatlantique, 107 U.S. 59 (decided February 5, 1883): New York’s $1 tax on people stepping off the boat is a prohibited regulation of foreign commerce (the “Dormant Foreign Commerce Clause”); New York argues that this is a tax on inspection of imports (to weed out the infected and the infirm) as is allowed by art. I, §10, cl. 2, but the Court holds that free persons can’t be “imported”, and the reference to “importation” of “persons” (art. I, §9) referred only to “persons of the African race”

Republic of Mexico v. Hoffman, 324 U.S. 30 (decided February 5, 1945): Mexico, which owned vessel which caused damage to American fishing vessel, did not have immunity from suit where it did not have possession of the vessel; Secretary of State could certify such immunity but had not done so

Pacific Telephone & Telegraph Co. v. City of Seattle, 291 U.S. 300 (decided February 5, 1934): city ordinance imposing tax based on telephone company’s gross income in the city not impermissibly vague when exact amounts are computed by city official and not due until then

[Dilan Esper]

Some of the petitioners in Queen v. Hepburn may have been Justice Duvall's former clients, as he had made the same argument representing various members of the Queen family in manumission suits as a private lawyer before joining the Court. Nowadays someone in Duvall's position may have felt the obligation to recuse. Petitioners in the Queen v. Hepburn case itself were represented by Francis Scott Key, who composed the poem that became "The Star Spangled Banner".

[Dan Schiavetta]

Thanks for this extra info!

[Dr. Ed 2]

Talking about need to recuse, who was it that didn't get Marbury's commission to him before Midnight?

[Dan Schiavetta]

As I noted in my comment (Feb. 1), Marshall should have recused himself. My Con Law professor also said this when he discussed the case in class.

[Dan Schiavetta]

P.S. The 12-mile circle is actually based in the center of the cupola on top of the courthouse, which was built in 1730:
https://upload.wikimedia.org/wikipedia/commons/a/a6/New_Castle_Court_House_Museum.jpg

What if the cupola has to be removed for renovations? What if workers place it (say) on the north lawn, thirty feet from where it was? Do New Jersey fishermen on the Delaware River have to scoot over thirty feet?

[defaultdotxbe]

I think Illinois v. Missouri (1970) holds the answer.

In 1881 the Mississippi River flooded and carved a new channel east of the town of Kaskaskia, IL (putting it on the Missouri side the river) When MO tried to claim it was now part of Missouri the Supreme Court found that while the river may move the border between the two states remained in a fixed location, where the river was at the time it was set as the boundary.

I would expect the same to hold true if the New Castle Courthouse were to move or be destroyed.

[Dan Schiavetta]

You're talking about avulsion (suddenly change of river course) which does not change a boundary, while accretion (gradual buildup or erosion changing river course) does. This makes sense. In an accretion situation, people will build/farm further and further out, as the water recedes, thinking it's still the same land. Avulsion cuts people off from people who yesterday were their neighbors.

Workers moving the North Castle Courthouse cupola would be "avulsing" it. So you're correct in that it wouldn't change the border. Like in the case John F. Carr mentions in his comment just next to this one.

[defaultdotxbe]

In the case of IL/MO the boundary is the center of the river channel so accretion on the banks wouldn't make a difference there (unless material accretes all the way to the center of the river)

With the DE/NJ border being on the NJ side of the river (DE owning the entire riverbed) then it might be considered differently.

[John F. Carr]

In Massachusetts if a monument marking a property line has been moved it carries no weight. This came up in a boundary dispute between two towns. I think each wanted the tax revenue from houses near the town line in what used to be worthless forest. The trial judge found that the monuments marking the border had been moved and disregarded them. As a finding of fact this bound the appeals court.

[Dr. Ed 2]

" 7 of the 9 Justices were slave owners, which was the typical situation pre-Civil War."

Weren't half the states Free? No justices from NY, MA, OH, etc?

[Dan Schiavetta]

Actually there were only 7 Justices at the time. I should have said 5 out of 7.

Story was from Massachusetts (hated slavery but upheld fugitive slave laws). Livingston was from New York (and I’m guessing he was not a slaveowner, though New York didn’t abolish slavery until a few years later).

The rest were slaveowners. Marshall (Virginia), Todd (Kentucky), Johnson (South Carolina), Bushrod Washington (Virginia), and Duvall.

Due to the makeup of the Senate, and the three-fifths rule in the House, the South was basically in the driver’s seat before the Civil War, especially as regards to putting judges on the Supreme Court. The outsized population of free states only became unbeatable in the 1850’s, but then there was a string of pro-slavery Northerners in the White House (Fillmore, Pierce and Buchanan).

[wolfefan]

It can also be hard to determine what a slave state actually is. IL was admitted to the Union as a free state, theoretically, but the IL Constitution allowed those who held slaves at the time of it's admission to retain them, and specifically allowed slavery to continue in the salt mines in southern IL.

[Dan Schiavetta]

There was the “White Slave Traffic Act of 1910” (upheld in a case I commented on on Jan. 15). Sounds like such a quaint phrase now.