A Nice Little Rant on Oldies-not-Goodies from Georgia Supreme Court Justice Joseph Lumpkin (1853)

"[T]hat Court and that country is behind the age that stands still while all around is in motion."

From Lowe v. Morris (Ga. 1853), which considers whether a writ of error  issued by the Clerk of the Court should be dismissed on the grounds that it erroneously failed to include the seal of the Court. The rules of the court required clerks to include such a seal, but didn't prescribe the consequence if the rules weren't followed. The majority said that the writ remained valid:

The question is not, whether the parties to whom the writ of error was directed could be punished for not obeying it, because not in conformity with the rule; but the question is, whether the party applying for this writ of error, issued by the Clerk of this Court, shall be deprived of his constitutional right, merely because our own officer has omitted to put the seal of the Court to the writ, as directed by the rule? … The rule does not declare, that a writ of error issued in any other manner than that prescribed by the rule, shall be null and void ….

In my judgment, the rule is merely directory to the Clerk as to the manner in which writs of error issued by him shall be authenticated, and if he violates its provisions, it is an irregularity, which may subject him to personal peril and responsibility, but will not deprive the party of his constitutional right to be heard in this Court, as to the matters involved in the record which has been sent up here in obedience to our own mandate, attested by the official signature of our own officer, merely because he has failed to obey the direction of our rule of practice, in attaching the seal of the Court to the writ of error, which is in all other respects perfect.

Justice Joseph Lumpkin add a long, amusing, and somewhat rambling concurrence, including this passage; I quoted it on the blog back in 2008, but I just came across it again and thought I'd pass it along, in somewhat more detail:

For myself, I am free to confess, that I despise all forms having no sense or substance in them. And I can scarcely suppress a smile, I will not say "grimace irresistible," when I see so much importance attached to such trifles. I would cast away at once and forever, all law not founded in some reason—natural, moral, or political. I scorn to be a "cerf adscript" to things obsolete, or thoroughly deserving to be so. And for the "gladsome lights of jurisprudence" I would sooner far, go to the reports of Hartly, (Texas,) and of Pike and English, (Arkansas,) than cross an ocean, three thousand miles in width, and then travel up the stream of time for three or four centuries, to the ponderous tome of Sidenfin and Keble, Finch and Popham, to search for legal wisdom. The world is changed. Our own situation greatly changed. And that Court and that country is behind the age that stands still while all around is in motion.

I would as soon go back to the age of monkery—to the good old times when the sanguinary Mary lighted up the fires of Smithfield, to learn true religion; or to Henry VIII. the British Blue-Beard, or to his successors, Elizabeth, the two James's and two Charles's, the good old era of butchery and blood, whose emblems were the pillory, the gibbet and the axe, to study constitutional liberty, as to search the records of black-letter for rules to regulate the formularies to be observed by Courts at this day.

I admit that many old things may be good things—as old wine, old wives, ay, and an old world too. But the world is older, and consequently wiser now than it ever was before. Our English ancestors lived comparatively in the adolescence, if not the infancy of the world. It is true that Coke, and Hale, and Holt, caught a glimpse of the latter-day glory, but died without the sight. The best and wisest men of their generation were unable to rise above the ignorance and superstition which pressed like a night-mare upon the intellect of nations.

And yet we, who are "making lightning run messages, chemistry polish boots and steam deliver parcels and packages," are forever going back to the good old days of witchcraft and astrology, to discover precedents for regulating the proceedings of Courts, for upholding seals and all the tremendous doctrines consequent upon the distinction between sealed and unsealed papers, when seals de facto no longer exist! Let the judicial and legislative axe be laid to the root of the tree; cut it down; why cumbereth it, any longer, courts and contracts? …

And a bit more from Justice Lumpkin on why in particular he thought the seal was obsolete:

The truth is, that this whole subject like, many others, is founded on the usage of the times, and of the country.… The only reason ever urged at this day, why a seal should give greater evidence and dignity to writing is, that it evidences greater deliberation, and therefore should impart greater solemnity to instruments. Practically we know that the art of printing has done away with this argument. For not only are all official, and most individual deeds, with the seals appended, printed previously, and filled up at the time of their execution, but even merchants and business men are adopting the same practice, as it respects their notes.

Once the seal was every thing, and the signature was nothing. Now the very reverse is true: the signature is everything, and the seal nothing. Thanks to the advancing intelligence of the age! In the days of ignorance, to be able to read and write, would save a felon's neck. Many of the educated gentry now, who are too lazy to work, and prefer to live by their wits, are the fellows upon whom the penalties of the law are visited in their utmost severity.

So long as seals distinguished identity, there was propriety in preserving them. And as a striking illustration, see the signatures and seals to the death warrant of Charles the First, as late as January, 1648. They are 49 in number, and no two of them alike. But to recognize the waving, oval circumflex of a pen, with those mystic letters to the uninitiated, L. S. [locus sigilli, literally "place of the seal," used instead of a physical seal -EV] imprisoned in its serpentine folds, as equipotent with the coats of arms taken from the devices engraven on the shields of knights and noblemen; shades of Eustace, Roger de Beaumont, and Geoffry Gifford, what a desecration! The reason of the usage has ceased; let the custom be dispensed with altogether….

Comments

[Krayt]

Surely a clerk on the take, who made an "error", would be no defense to deny rights. But how to prove it, the wind of denial, the muscle of the corrupt, the stinking, well-fertilized flower pot of beautiful lies?

Well, why prove it? Just realize an error, without the quotes, is similarly no justification to deny rights. Thence, in neither case can rights denied, and nothing further need be done.

[The Margrave of Azilia]

At least in the "age of monkery," those unenlightened people hadn't yet gotten the idea of kidnapping free Africans, shipping them across a whole ocean, and subjecting them and their progeny to perpetual slavery.

That sort of enlightenment came in later ages.

From Joseph Lumpkin's online biography:

"Lumpkin was known for the quality of his legal opinions and judicial reasoning. He was best known, however, for the militant proslavery views that often appeared in his opinions in suits involving enslaved people....

"He also believed that slavery was sanctioned by the Bible and often cited religious arguments to support continuation of that institution."

https://www.georgiaencyclopedia.org/articles/history-archaeology/joseph-henry-lumpkin-1799-1867/

The abstract of "Joseph Henry Lumpkin: Industrialism and Slavery in the Old South," in Alfred L. Brophy (ed.), University, Court, and Slave: Proslavery Academic Thought and Southern Jurisprudence, 1831–1861 (Oxford University Press, 2016):

"Justice Joseph Henry Lumpkin of the Georgia Supreme Court, like Thomas Ruffin, dealt frequently with cases involving slavery and self-consciously promoted the institution through his decisions. This chapter survey’s Lumpkin’s opinions across a variety of areas, including emancipation of slaves via will and his extrajudicial writings. They depict a judge deeply concerned with slavery’s history, the economics of slavery, and its place in southern culture. Lumpkin did what he could to promote slavery, which he saw as a part of a vibrant and modern south. Slavery and corporations were part of Lumkin’s vision of a commercial and industrialized south. This, thus, shows the centrality of slavery to economic development in the mind of one prominent southern jurist."

https://academic.oup.com/book/12116/chapter-abstract/161501709?redirectedFrom=fulltext&login=true

[The Margrave of Azilia]

"a vibrant and modern south"

He sounds like a good progressive.

[The Margrave of Azilia]

Correction: Alfred L. Brophy is author, not editor.

[gormadoc]

I must point out that the era he was talking about was, in fact, the era in which the transatlantic slave trade began. The Portuguese had already started taking hundreds of Africans to Europe every year before the fall of Constantinople. Dum diversas was a papal bull in 1452 that justified the Portuguese taking Muslim slaves. Henry VIII was born 40 years later. The Portuguese started regular shipments to Brazil in 1560, when Elizabeth was queen.

[y81]

And both Coke and Hale were alive when slavery was established in the English colonies of the New World. I don't know if either of them wrote or said anything about it.

[The Margrave of Azilia]

"The Portuguese had already started taking hundreds of Africans to Europe"

I think it ought to be plain that my reference was to the Middle Passage, which relates to the *Atlantic* Ocean.

[Stupid Government Tricks]

Correction: whites did not invent slavery when they explored south of the Sahara, nor when they discovered the Americas. The Atlantic slave trade involved buying black slaves from the black slave owners who had enslaved them. Slavery itself was invented thousands of years before that. Native Americans were slavers long before Europeans found them. Slavery was not a racist endeavor. Europeans and Americans descended from Europeans led the way in banning slavery. Asians, Arabs, and even Africans themselves were laggards in banning slavery.

[The Margrave of Azilia]

"whites did not invent slavery"

I didn't say they had. The idea of "buying" Africans who had been enslaved by other Africans, then shipping them across the sea and putting them and their posterity into perpetual slavery in the "New World," was invented after the Middle Ages. There were other kinds of slavery in the Middle Ages, but not the subcategory of it which Lumpkin found so modern and progressive.

And as a good progressive, Lumpkin wouldn't have been able to cite ancient precedents in support of slavery.

[Stupid Government Tricks]

Your whole rant was about nothing but white slave owners, one way or the other. I've seen less demagoguery on the subject from the woke crowd.

those unenlightened people hadn't yet gotten the idea of kidnapping free Africans, shipping them across a whole ocean, and subjecting them and their progeny to perpetual slavery.

The whites DID NOT kidnap free Africans. They bought Africans who had been enslaved by other Africans.

[The Margrave of Azilia]

So they weren't robbers, they were receivers of stolen goods.

Again, Lumpkin publicly prided himself on rising above reliance on old and unfair traditions.

[Sarcastr0]

Slavery was not a racist endeavor
It sure was in America!

Long time ago I wrote how American slavery was not your run-of-the-mill slavery either, it was in addition to being racially defined extra fucked up. I liked it enough I saved it:

https://reason.com/volokh/2020/08/07/cancelling-john-marshall/?comments=true#comment-8392556

American slavery was unique because of how profoundly slaves outnumbered slaveholders, and how much the slaveholders' way of life depended on their slaves.

This lead to a fear of revolt that created a system of terrorism and dehumanization. Black people were not just enslaved, they were broken, their names stripped from them, their language, their faith, their family. That was not something even visited on the slavs or any system in Islam. Teaching a slave to read was a crime, because keeping blacks in dehumanized ignorance was a requirement of the system.

Ad that doesn't mention the forced breeding, often via forced rape. Another uniquely monstrous aspect of the American institution.

Fear of revolt lead to an affirmative policy of breaking up families and keeping black people terrorized.

And all of this in a country that considered itself a beacon of liberty among all mankind, a blindness and hypocrisy that must also be factored into American slavery's towering awfulness throughout history.

You don't need to defend slavery as not a white man's issue. It was, but what doesn't mean you or I inherit an inherent sin.
To be sure, as Faulkner notes the past isn't dead or even the past, but that just means we've developed other newer racial issues to deal with.

[Lee Moore]

So much nonsense, so little time.

American slavery was unique because of how profoundly slaves outnumbered slaveholders

Nope. Nothing remarkable about the ratios of sales to slave owners - in the South it was similar to Brazil, a little higher than Sparta, and somewhat lower than Russia under serfdom.

and how much the slaveholders' way of life depended on their slaves.

Nope. In each of the above cases the owners' way of life depended on the slaves. As you would expect. Doh !

The South was a little unusual in the slaveowners being a fairly small minority of the free population - ie the threat of revolt was lower than the slave to slave owner ratio might suggest, because of the large poor white population. And certainly less than in Sparta which had actual revolts.

An important distinction between US and Brazilian slavery was that Brazilian slaves were treated so badly that they tended to die, requiring new imports. Whereas American slaves tended to live and breed. Hence the fact that slaves imported to Brazil greatly outnumbered slaves imported into the US.

And all of this in a country that considered itself a beacon of liberty among all mankind, a blindness and hypocrisy that must also be factored into American slavery's towering awfulness throughout history.

American slavery was toweringly awful .... for a civilised society advertising itself as a beacon of liberty among all mankind. But by the standards of other slave owning societies, both contemporary - like Brazil, and less contemporary - the Caliphate and its successors, the Aztec Empire, China, and the Ancient World generally, it was not particularly remarkable. Though at some times and places, slaves had more legal protection than they did in the South.

It deserves special condemnation simply because owners professed that they were Christians. And the Atlantic slave trade, and eventually slavery itself in the United States, were abolished because slavery was inconsistent with Christianity. Which was the predominant religion in these parts at the relevant time.

[Lee Moore]

With the recent fun and games with the Biden autopen, perhaps the "new" adage that the signature is all, and the seal nothing, has run its course.

Perhaps there is even something to be said for two factor authentication.

But perhaps there is even more to be said for the idea that those charged with enforcing the rules, should be extra sharp about enforcing the rules against themselves.

If a court issues an order without completing the required formalities, and as a result the beneficiary of the order cannot enforce it until the court has another go and gets it right, that doesn't seem to me a more heinous deprivation of rights than the fact that the litigant has had to wait anyways for the court, in its own sweet time, to hear his case.

There is little in the law more disagreeable than judges voting themselves dispensations from it.