Today in Supreme Court History: February 5, 1793

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

Comments

[Dilan Esper]

capt? A nation turns its lonely eyes to you.

[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. Five of the seven 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

O’Gorman & Young, Inc. v. Hartford Fire Ins. Co., 282 U.S. 251 (decided January 5, 1931): upholding New Jersey statute requiring that insurance agents be not paid above designated prevailing rates, as valid use of police power (“The business of insurance is so far affected with a public interest that the state may regulate the rates”); 5 – 4 decision, with the “Four Horsemen” dissenting (though they weren’t called that yet)

[Dilan Esper]

Re Hepburn, someone could probably write a good paper on the usage "people of color" in the 19th century. This was long before it was a modern activist term. It's also used by Taney in Dred Scott.

[Dan Schiavetta]

Also notable is that the children of slaves were not called children -- they were called "their increase".

[John F. Carr]

Were children of slaves ever called "issue", as the children of citizens could be called?

The first edition Oxford English Dictionary, H to K volume dated 1901, allows increase to be used for children of a respectable person:

Offspring, progeny, brood (of men or animals). Properly collective: also (poetic), of an individual = Offspring, child.

Wiktionary has a quote from 1599 applying increase to an ordinary person. https://en.wiktionary.org/wiki/increase#Noun

Southern legal use, of course, does not need to follow English dictionaries.

[F.D. Wolf]

A case search shows many references to the "children" of slaves, even in state courts of slave states. The full caption of this case in the United States Reports is "Mima Queen and Child, Petitioners for Freedom, v. Hepburn."

[Dilan Esper]

And People v. Compagnie Generale Transatlantique seems like it might have some modern relevance to what is going on in Texas.

[F.D. Wolf]

Not only had Gabriel Duval been the attorney for several members of the Queen family, he had actually appeared as a witness for Queen when the case was decided in the D.C. circuit court in 1810. (He was appointed to the Supreme Court in 1811. I'm not sure why it took the Supreme Court nearly three years to get around to the case). So, he certainly should have recused himself.

Francis Scott Key, who 18 months later would be watching the British bombardment of Fort McHenry as a prisoner aboard the HMS Surprise (and write a song about it), was one of the attorneys for Queen in both the circuit court and Supreme Court.