ISSUE 4 2006 The Historical Society of the Courts of the State of New York

The Lemmon Slave Case BY JOHN D. GORDAN, III

OFFICERS:

Albert M. Rosenblatt, N LEMMON V PEOPLE, 20 N.Y. 562 (1860), President the New York Court of Appeals made the strongest John D. Gordan, III, statement\ against slavery of the highest court of any Vice President state before the Civil War. In those days, slavery was a E. Frances Murray, ward of the federal government. Although its legal exis- Secretary tence and attributes were individually regulated by Stephen P. Younger, each state, North and South, at a national level slavery Treasurer was protected by the Constitution of the United States Marilyn Marcus, and by the Fugitive Slave Acts of 1793 and 1850. Executive Director Apart from domestic regulation within the borders

BOARD OF TRUSTEES: Every person...brought Helaine M. Barnett “ Richard J. Bartlett into this State as a slave... Barbara A. Brinkley shall be FREE Penelope D. Clute ” 1 Revised Statutes of New York Norman Goodman (part I, ch XX, tit VII § 1 [3d ed 1846]) Henry M. Greenberg Judith S. Kaye of individual states, slavery was an issue in the courts in The decisions and arguments of counsel, as published by Stephen Rackow Kaye three principal categories: Horace Greeley and Co. (1860) Robert G. M. Keating 1. enforcement of the Slave Trade Act of 1807 and its progeny, which banned the importation of slaves into A. Thomas Levin the United States; Jonathan Lippman 2. enforcement of the Fugitive Slave Acts, which authorized slave owners to pursue their slaves fleeing across state lines and to bring them back after an abbreviated judicial hearing; and E. Leo Milonas 3. legal efforts to liberate slaves carried by their owners into jurisdictions in which slavery was prohibited. Leon B. Polsky Enforcement of the Slave Trade Act was at best inconsistent, depending on time and place.1 The enforce- 2 Michael Powers ment of the Fugitive Slave Acts in the free states of the North was often explosive and sometimes violent. As antislavery sentiment advanced in the North and resistance to repatriation of fugitive slaves increased there, Roy L. Reardon abolitionists created the “Underground Railroad” to spirit fugitive slaves to freedom in Canada. If a fleeing M. Catherine Richardson slave were cornered within a Northern state, there might be armed resistance, arrest by state authorities of Susan S. Robfogel federal marshals enforcing the Fugitive Slave Act, recourse to state court habeas corpus jurisdiction for pris- Continued on page 8 Leon Silverman

Ex Officio Trustee PAGE 3: DANIEL J. KORNSTEIN Christine W. Ward N.Y.S. Archivist The Roberson Privacy Controversy “...In a close four-to-three decision, the Court...dismissed (the) complaint on the ground that no “so-called” right of privacy existed in New York...”

The Lemmon Slave Case BY John D. Gordan, III ...... 1 From the Director / Contributors to this Issue / Letters ...... 2 The Roberson Privacy Controversy BY Daniel J. Kornstein ...... 3 Upcoming Events ...... 7 Historical Society Membership ...... 14 ISSUE 4 2006

From the Executive Director

WxtÜIt is with great pleasure `xÅuxÜá that I introduce myself as your new Executive Director. I am so impressed with the achievements of the Historical Society since its founding only a few years ago, and am privi- The Historical leged to assume this position. Society of the Courts We are pleased to present you with our fourth publication of articles of historical interest concern- ing the legal and judicial history of New York. This edition features two historic and hugely conse- of the quential cases heard by the New York Court of Appeals. The Lemmon Slave Case article recounts how State of New York the Court spoke out in 1860 against slavery in the clearest possible terms, renouncing the then recent- ly decided Dred Scott decision of the United States Supreme Court. The Roberson Privacy Controversy 84 NORTH BROADWAY tells the story of Abigail Roberson’s quest for justice as she sought protection of her right of privacy WHITE PLAINS, N.Y. 10603 against a company that used her picture for advertisement without her knowledge or consent. PHONE (914) 993-4209 We are introducing a new feature, Letters to the Editor, and we welcome your opinions, comments FAX (914) 997-8982 and reminiscences responding to our articles. E-MAIL: The_Historical_Society@ I can’t miss this opportunity to thank our wonderful Editor-in-Chief, Henry M. Greenberg, our courts.state.ny.us Board of Editors, Associate Editors and talented Graphic Designer for making a publication of this WEB SITE: quality possible. www.courts.state.ny.us/history By now you will have received our 2006 calendar, once again displaying with great beauty and interesting vignettes postcards of the courthouses of New York. Publication of Volume I of New York BOARD OF EDITORS Legal History, our scholarly journal, marks a milestone in our production of legal scholarship, and we Judith S. Kaye are turning our attention to the next volume. Hopefully, many of you saw the front page article in the Albert M. Rosenblatt February 2, 2006 New York Law Journal reporting on the oral history featured in our journal of former Leon B. Polsky Court of Appeals Judge Richard D. Simons. We continue the important work of taking the oral histo- E. Frances Murray ries of our prominent jurists so as to preserve this living legacy. I’m delighted to report that our annual event will be held at The Association of the Bar of the City EDITOR-IN-CHIEF of New York on May 22, 2006 at 7:00 p.m. The program is entitled “The Scales of Justice: A Henry M. Greenberg Reargument of Palsgraf v Long Island R.R. Co.,” and we hope you will join us for a “reargument” of the

MANAGING EDITOR Palsgraf case, with oral argument followed by a bench that will engage in open deliberation with the Marilyn Marcus audience looking on.

ASSOCIATE EDITORS Finally, I want to mention our comprehensive website at: www.courts.state.ny.us/history. It has David Markus recently been updated, and it is a fine source for the Historical Society’s news, as a library and as a Renata Goldshteyn stop for purcasing gifts, as well as a convenient way to initiate or renew membership. Jennifer Sculco The year ahead is full of wonderful projects, expanding on our accomplishments. For example, we are developing a program in Buffalo that will tap into the rich legacy of contributions to New York’s DESIGN Patricia Everson Ryan legal and judicial history by the western region of our State. We are also co-sponsoring a lecture series with The New York Court of Appeals. (See Upcoming Events on pg. 7.) Furthering our mission is impossible without your support. We count on your continuing mem- bership. Please remember that the Historical Society is an independent not-for-profit, and it is your generosity alone that makes the work of the Historical Society a reality.

CONTRIBUTORS Marilyn Marcus TO THIS ISSUE Executive Director

Daniel J. Kornstein is a member of the Manhattan law firm of Kornstein Veisz Wexler Letters to the Editor & Pollard, LLP. He combines a litigation To the Editor: and his constitutionally- practice with writing Judge Jack Weinstein’s warm reminiscence of mandated retirement in about the law. his year as law clerk to [then Associate, later December 1973. Chief] Judge Stanley H. Fuld, which appeared A criminal leave applica- John D. Gordan, III in Vol. 1, No. 2 of the Newsletter, brought tion to the Court of is a litigation partner back for me a flood of memories. Just a couple Appeals (in contrast to a in the New York office of years out of law school, as were my fellow civil application, which of Morgan, Lewis & Legal Aid Society and Assistant District entails a submitted motion Bockius LLP. He is Attorney colleagues, I had the distinct privilege to the full bench) may Vice President of the Judge Stanley H. Fuld Historical Society and of regularly appearing before Judge Fuld, both involve an in-chambers one of its founding in the Court of Appeals and in chambers at hearing before a single trustees. criminal leave hearings, between January 1970 judge of the Court of Appeals. I was fortunate

continued on page 13

2 The Roberson Privacy Controversy

by Daniel J. Kornstein

he New York Court of Appeals is no stranger to legal controversy, galthough the nature of those disputes may change with the times. These days hot-button issues include the death penalty, school funding, the state budg- et and same-sex marriage. A little over a century ago, the great divisive issue was the right of privacy, an issue that today still generates an occasionally strong whiff of strife. P h o t o g r a Others would

p “ h o

f have appreciated the

C h i e compliment to their f

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g beauty implied in e

A l t the selection of r o n

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a the picture for such r k e r

purposes. r ” e p r

o —Chief Judge Alton Parker d u c e d w i t

h Back in 1902, New York was the first t h

e state to face squarely the question of p e whether the common law should rec- r m i s ognize a right of privacy. The answer s i o n given by New York’s highest court was a o f

T resounding no, which immediately C S

fueled widespread public and profes- D a i l sional debate, provoked the State y , a

Legislature to react, was implicitly repu- w b s diated by its author, embodied the sex- i t e Likeness of Abigail Roberson appearing in Profitable Advertising (August, 1902), reproduced with s ism of its time and continues to cast a o the permission of the Public Library of Cincinnati and Hamilton County. u r c long shadow on the law of New York e a t and elsewhere. remembering. Abigail Roberson, who tisements to sell its flour. Rather than w 1 w Roberson v. Rochester Folding Box Co.

w lived in Rochester, was an attractive, being flattered, Abigail was humiliated. . t c has never been a case just for New York

s strong-minded, sensitive, intelligent, Alleging she was an object of derision d a i lawyers alone. It is familiar to almost l tenacious, intrepid, plucky but shy by jeering neighbors and as a result y . c o every lawyer and law student in young woman of 18 when the lawsuit needed medical care, she sued for men- m

. America. It is one of those rare, special started. She had some photographs tal distress, seeking $15,000 in dam- cases of first impression that stretch the made of herself at a studio, and her ages and an injunction. limits of the law and are used by gener- boyfriend told her that a friend of his Although lower courts found that ations of law professors to illustrate the was going to do a portrait from them. Abigail had stated a claim, the Court of legal process and the zigzag way in “Little did I realize what they were Appeals disagreed. In a close four-to- which the law sometimes develops. A going to do with it,” she reminisced in three decision, the Court, over a vigor- lightning rod of a judicial landmark, 1967.2 ous, moving and prescient dissent by Roberson was the Roe v. Wade of its time, The teenager sued because a big Judge John Gray, dismissed her com- and 104 years later it retains great inter- milling company used her picture, plaint on the ground that no “so- est, stimulates much discussion and without her prior knowledge or con- called” right of privacy existed in New goes on yielding new insights. sent, and certainly without paying her, York. The majority opinion, written by The case has a heroine worth on 25,000 posters and magazine adver- Chief Judge Alton Parker, stressed the continued on page 4

3 “I take this opportunity,” the then 21-year-old Abigail wrote to presidential candidate Parker, “to remind you that you have no such right as that which you assert.”

hit a sensitive nerve and instantly pro- New York Civil Rights Law. Section 50 duced an outburst of public and pro- makes invasion of privacy a misde- fessional criticism. In a flurry of arti- meanor, and Section 51 allows a private cles, the press, sympathetic to Abigail’s right of action for an injunction and plight, loudly opposed the Court’s rul- damages where a plaintiff’s name or ing. The New York Times printed several likeness has been used for advertising such articles, including one angry edi- purposes or for purposes of trade with- torial that accurately described Roberson out written consent. Ever since 1903, as having “excited as much amazement this statute has been the primary if not among lawyers and jurists as among sole source of privacy law in New York the promiscuous lay public.”4 Typical State. Abigail Roberson may not have contemporary comments were that won her lawsuit, but her case motivat- Roberson was a “most unsatisfactory ed the Legislature to change the law so Chief Judge Alton Parker result,”5 a decision “greatly to be regret- that others after her could win. Reproduced with the permission of the Klyne Esopus Museum in Ulster Park, NY, from its collection. ted,”6 that “one of the hopes of human- Not only did the Legislature quickly ity is that courts sometimes reverse repudiate the Roberson ruling, but so themselves,”7 and that “the hour is ripe did its author, in a manner of speaking. Roberson Privacy Controversy for the Legislature to step in.”8 Chief Judge Alton Parker, who had continued from page 3 So loud and stinging was the public written the Roberson majority opinion, lack of precedent, the purely mental criticism that it led one of the Court of apparently had a change of heart based character of the injury, the “vast field of Appeals judges who had joined the on his own later personal experience as litigation” that would ensue, the diffi- majority to take an unprecedented and a public figure. He recanted, sort of. culty of distinguishing between public rarely repeated step. Judges do not usu- Parker, a politically active and and private persons and the fear of ally defend their decisions except per- prominent Democrat, became involved interfering with First Amendment free- haps in later rulings. But five months in national politics soon after the doms. after the Roberson ruling in June 1902, Roberson decision. At the 1904 The Chief Judge tipped his hat to Judge Denis O’Brien published an Democratic Convention, Parker nar- what has probably become the most extraordinary article in the Columbia rowly beat William Randolph Hearst famous law review article ever written. Law Review in an effort to further for the presidential nomination and Parker pointed out that the right of pri- explain and justify what he and his then resigned as New York’s Chief vacy was first mentioned, “with attrac- three fellow judges on the Court of Judge. Running as the Democratic can- tiveness, and no inconsiderable ability” Appeals had done in that case.9 didate for President against Theodore only 12 years earlier, in 1890, in a “The right of privacy in such cases, if Roosevelt in the election of 1904, “clever” essay by Louis Brandeis and it exists at all,” wrote Judge O’Brien, “is Parker lost by the largest margin in Samuel Warren in the Harvard Law something that cannot be regulated by American history up to that time. It is Review.3 But Chief Judge Parker and his law.” Even if such unauthorized com- unclear if the magnitude of Parker’s three colleagues in the majority dis- mercial exploitation violated feelings loss can in any way be attributed to his agreed with Brandeis and Warren, con- and sensibilities, continued O’Brien, Roberson opinion. cluding that invasion of privacy is “one the “practical question” is whether reg- During the 1904 campaign, Parker of the ills that under the law cannot be ulation of such advertising would do publicly complained about the redressed.” The correct way to address “more harm than good.” For one thing, paparazzi and how they were invading the problem, suggested Chief Judge litigation would proliferate. In a refrain his and his family’s privacy. “I reserve Parker, was to have the State familiar to modern lawyers, O’Brien the right,” Judge Parker declared in a Legislature, not the courts, change the pointed out that judges should not press release, “to put my hand in my law. make new law but simply interpret and pockets, and to assume comfortable Today it is striking how many of the enforce existing law. For new laws, attitudes without having to be everlast- issues mentioned by Chief Judge Parker “resort must be had to the Legislature.” ingly afraid that I shall be snapped by are still very much alive and unre- Taking its cue from O’Brien’s article some fellow with a camera." Parker solved. But that would be cold comfort as well as from the Roberson majority refused to be photographed. for Abigail Roberson. After all, and opinion, the State Legislature acted We do not know if Judge Parker’s despite the notion of change she quickly, and repudiated Roberson at its experience as a very public figure stirred, she lost. Her strong spirit was very next session. To overcome the would have led him to vote differently unbroken, however, as she was soon to effects of the Court of Appeals deci- in Roberson. Nor do we know if Judge demonstrate. sion, the Legislature speedily passed Parker even appreciated the irony of his Meanwhile, the decision in Roberson what are now Sections 50 and 51 of the predicament. We do not even know if,

4 when he issued his press release about the selection of the picture for such his right of privacy, he gave any thought purposes.” Fellow Judge O’Brien won- to what he had written in the Roberson dered in his law review article how it decision. was possible to harm a woman’s feel- But we do know that at least one ings by depicting her good looks. “A person did. Abigail Roberson, the feisty woman’s beauty, next to her virtues, is and articulate young plaintiff who lost, her earthly crown,” he wrote. “But it remembered. She connected the dots. would be a degradation to hedge it On hearing of Judge Parker’s about by rules and principles claimed “right” of privacy, she wrote a applicable to property in wonderfully sardonic and outraged let- lands and chattels.” ter to Parker that wound up on the Imagine telling that to the front page of the July 27, 1904 edition likes of Naomi Campbell of the New York Times. “I take this or Heidi Klum, or their opportunity,“ the then 21-year-old business managers for that Abigail wrote to presidential candidate matter. Even the dissent men- Parker, “to remind you that you have tioned the “mortifying notoriety” that no such right as that which you assert.” “a young woman” “must submit to” as We can easily imagine the twinkle in a result of the advertisements in ques- her eye, the wry smile on her face, and tion (which in fact were no more than the determination in her heart as she a profile of Abigail from the neck up). continued, “I have very high authority And the Albany Law Journal stated, for my statement, being nothing less “Every considerate person will sympa- than a decision of the Court of Appeals thize with pretty young women in their in this State, in which you wrote the aversion to having their portraits or prevailing opinion.” photographs paraded before the public She pointed out to Parker that, as a to advertise brands of flour, corsets, or “poor girl” who “never had courted mayhap, cheap cigars.” 10 publicity,” she was “much more enti- In light of such unabashedly sexist tled” to a claim for privacy than he was comments, we inwardly grin as we dis- as a candidate for President and “the cover how the spirit of the women’s legitimate center of public interest” rights movement truly hovers over the who had “invited the curiosity” of the Roberson case. Both opinions in Roberson press. She concluded that “this incident refer to a case decided a few years earli- well illustrates the truth of the old say- er by the Court of Appeals in which a ing that it makes a lot of difference nephew of a famous philanthropist whose ox is gored.” objected to his deceased aunt’s statue We read this remarkable letter today, being erected next to a statue of Susan and we silently cheer Abigail on with B. Anthony, the famous suffragette and an enthusiastic and admiring, “You go activist.11 The nephew did not like girl!” Anthony’s crusade on behalf of women. Of course, Abigail was on to some- Inasmuch as the nephew lost, the thing deeper than one judge’s inconsis- majority in Roberson cited the statue tency or the distinction between public case as authority, while the dissent dis- and private figures. The judicial opin- tinguished it. ions in Roberson as well as reaction to There is something symbolic and them were suffused with sexism. (It was particularly apt about both Roberson not until 1983 that the first woman — opinions discussing the iconic Susan B. now our Chief Judge Judith Kaye — sat Anthony. It is as if one of the patron on the Court of Appeals.) The Roberson saints of the women’s movement acted opinions reflected a paternalistic, pro- from beyond the grave as spunky tective and demeaning attitude, a pity- Abigail’s cornerperson in this fight, ing condescension toward women that Continued on page 6 today would be regarded as sexist, if not archaic and chauvinistic. Above: Campaign button for Alton Parker as the Chief Judge Parker’s majority opin- Democratic candidate for President against ion mocked Abigail’s claim, saying, Theodore Roosevelt in the election of 1904 with patronizing male haughtiness, “Others would have appreciated the Right (and continued on page 6): The New York Times, July 27, 1904 compliment to their beauty implied in

Continued on page 6 N.Y.Times article continued from page 5 “The right of privacy in such cases, if it exists at all,” “is something that cannot be regulated

Roberson Privacy Controversy up daisies now, and I’m still going.” continued from page 5 But the Roberson ruling has had an lending her authority and prestige to a even longer life. Reports of its death new generation. are exaggerated. Though supposedly Much has happened in the law of overruled by the Legislature, Roberson privacy (as well as in gender attitudes still has a lingering impact on New generally) since Roberson was decided York law. It too is “still going.” The by the Court of Appeals in 1902. Court of Appeals has never overruled, Criticism of Roberson heralded what seriously challenged or even undercut was to come. Three years later, the its 1902 decision. On the contrary, that Supreme Court of Georgia rejected Court has consistently and as recently Roberson’s reasoning, cited the Roberson as 2000 invoked Roberson to hold, dissent with approval, and found a despite erroneous predictions to the common law right of privacy.12 The contrary by federal courts in New York, Georgia case, not Roberson, was the that no common law right of privacy wave of the future. Over time, that exists in New York.14 right of privacy has developed greatly This means that beyond the con- throughout America, but not without fines of the Civil Rights Law, an inva- struggle. Its constitutional dimensions sion of privacy suit under New York — affecting rights of abortion, private law will probably fail — unless a court sexual conduct, how to die and other is willing to re-start an old controversy. aspects of personhood — continue to More broadly, Roberson stands for a generate considerable controversy. view of the legal process that even The case had considerable impact today has many adherents. Echoing on Abigail’s lawyer, Milton E. Gibbs, what the majority stated in Roberson who was 30 years old when he took (and what Judge O’Brien said in his her case. Called “highly ambitious” by law review article), the Court of Abigail in the 1967 interview with the Appeals in 1993 again advised that Rochester Democrat & Chronicle,13 Gibbs adoption of a right of privacy is “best greatly benefitted from the publicity left to the Legislature.”15 produced by Roberson. Within a year of How times have changed! Can you the Court of Appeals ruling, he became imagine the legal ramifications today a judge and later sat on the bench of of taking a picture of some idle the State Court of Claims, where he stranger and linking it to an advertise- served until 1940, when he died at age ment? How many people would be out 69. In 1913, Gibbs was nominated by of money from just one stolen snap- the Governor to become State Hospital shot? Let’s see. For starters: a model Commissioner, but the opposition was management firm, a photographer, an so great that he was not confirmed. At editor, an advertising agency corporate his confirmation hearing, the testimo- counsel, advertising counsel for review- ny against Gibbs came mainly from ing contracts and — let’s not forget — former clients who claimed Gibbs had the person photographed. withheld money due them in a legal In today’s world of advertising, no case. one would think of placing an image And what happened to Abigail on a poster or in a magazine without Roberson? Abigail’s brother put her consent, contracts and commission. through music school, and she became Perhaps Abigail Roberson realized how a piano player in silent movie theaters, much she changed things. Did anyone some of which she managed. She sur- ever thank her for all the fields of com- vived to see the right of privacy, merce that were created by her case shaped in part by her, grow and flour- and the reaction to it? ish. A sickly young girl, Abigail lived a It is tempting to say that Roberson long life, dying in 1977 at the age of was simply bad law from the start, that 94. Commenting on the doctors who the Court of Appeals just got it wrong, predicted she would not live to 21, and that the case obviously should Abigail, when she was 84, noted with have been overruled long ago. It is mordant wit: “Well, they’re all pushing tempting, very tempting, but it may be wrote Judge O’Brien, by law.” Upcoming Events misleading and overly simplistic. MAY Reality is more complicated, espe- cially given the passage of time and Annual Lecture: May 22, 2006 • 6:00 P.M. the intervening institutional inter- HE CALES OF USTICE play between the Court of Appeals T S J : and the Legislature. A REARGUMENT OF PALSGRAF V It is one thing to consider how an LONG ISLAND R.R. CO. issue should be decided initially, it is Moot Court Presentation of The New York Court of Appeals quite another to reconsider an issue arguments in and deliberations of this famous case. resolved over a century earlier. Today The Association of the Bar of the City of New York the question posed by Roberson is no 42 West 44th Street, New York City longer one of first impression. The slate is no longer blank. The ADVOCATES: Henry G. Miller, Esq., White Plains, NY, for the plaintiff Legislature, for example, has rejected Hon. Robert S. Smith, Associate Judge NYS Court of Appeals, for the defendant proposed bills to expand privacy tort BENCH: Hon. Howard A. Levine, Albany, NY, Chief Judge; Caitlin J. Halligan, Esq.; liability in New York. Such factors Solicitor General, Dept. Of Law, New York, NY; Judith A. Livingston, Esq., New York, NY; may or may not be dispositive, but Bettina Plevan, Esq., New York, NY; Roy L. Reardon, Esq., New York, NY they should at least be weighed. (Look For your invitation in the mail.) What makes Roberson endlessly fascinating is its uncommon conflu- JUNE Co-sponsored by: The Historical Society of the Courts of the State of New York ence of several issues that have never yet been fully resolved to everyone’s The New York Court of Appeals Lecture Series: Second Lecture satisfaction: the source and scope of the right of privacy, the respective Dreiser’s “An American Tragedy”: The Law and the Arts roles of judges and legislatures in Court of Appeals Hall, Albany, New York • June 26, 2006 at 6:00 pm creating new legal rights, the need for the common law to keep pace SPEAKERS: Francesca Zambello, director of opera and theater and with changing conditions, the way Susan Herman, Centennial Professor of Law at Brooklyn Law School courts can speak to each other and The death of Grace Brown 100 years ago and the ensuing mur- to other branches of government, the der trial (P. v Gillette) argued before The New York Court of specter (real or imagined) of Appeals became the basis of Theodore Dreiser’s famous novel, increased litigation, the effect of a An American Tragedy, the Hollywood movies An American dissenting opinion on the future Tragedy and A Place in the Sun and the opera An American course of the law, the potential for Theodore Tragedy. This program will examine the connection between legal periodicals to influence courts, Dreiser cases-at-law and the artistic works derived from them. the desirability of judges comment- Francesca Zambello is an internationally renown director of opera and theater. She is ing on their decided cases and the the director of the world premier of Tobias Picker’s opera An American Tragedy at importance of avoiding sexism in the the Metropolitan Opera (2005). Her American debut took place at the Houston law. Grand Opera with a production of Fidelio in 1984. She debuted in Europe at Teatro la Fenice in Venice with Beatrice di Tenda in 1987 and has since staged new produc- Roberson had all these debatable tions at major theaters and opera houses in Europe and the USA. Collaborating with issues and more. It is peopled with outstanding artists and designers and promoting emerging talent, she takes a special fascinating characters. Whether or interest in new music theater works, innovative productions and in producing the- not we agree with its outcome, ater and opera for wider audiences. Roberson is a riveting case that still Susan Herman conducts a Law and Literature seminar in which she examines the merits careful study, for the many representation of law, lawyers and the legal process in fictional works by such writ- controversies embedded in it are far ers as Melville, Twain, Faulkner, Camus, Toni Morrison and David Mamet. In the from settled. Just as we can some- seminar, she addresses the extent to which the interpretation of law and interpreta- times see a world in a grain of sand, tion of literature are enterprises sharing common problems and methods. so too can we occasionally see much The lecture is open to the public and is free of charge. RSVP (518- 455-7795) is essential. of the legal universe in a single case. Susan Washington, currently the AUTUMN Co-sponsored by: The Historical Society Rochester public librarian for Local History and Genealogy, put it best. The New York Court of Appeals Lecture Series: Responding to our request for infor- Third Lecture mation, she wrote: “I will be raising a glass to Abbie this weekend! Thank The Shape of Justice: Law and Architecture you for the interesting search.” Further information will be provided when available. Endnotes on page 13 The Rotunda of the Court of Appeals in Albany

7 The Lemmon Slave Case continued from page 1

oners in federal custody under the Fugitive Slave Act and occa- man.” Napoleon was a good deal more besides — a vice presi- sionally “rescue” of a captured slave right out of the U.S. dent of the American and Foreign Anti-Slavery Society which Commissioner’s courtroom in the midst of the removal pro- two years before had been instrumental in ransoming James ceedings.3 Hamlet, a Brooklyn resident and the first person “removed” The Lemmon Slave Case falls in the third category of cases following proceedings before a U.S. Commissioner under the listed above: legal efforts to liberate slaves carried by their own- Fugitive Slave Act of 1850, from his owner in Baltimore. ers — in this case eight household slaves in transit with their Elijah Paine, Jr., the judge, was named for his father, a owners — into a jurisdiction that prohibited slavery. In contrast Federalist United States Senator from Vermont from 1795 to to the cases described above, the matter appears to have been 1801 and United States District Judge for the District of entirely peaceful. The case falls into a relatively small group of Vermont from 1801 until his death in 1842. Elijah Paine, Sr.’s like cases which resonate in the history of Anglo-American other children included Martyn, an accomplished physician jurisprudence: Somerset v Stewart,4 in which Lord Chief Justice and one of the founders in 1841 of what is now the New York Mansfield in the Court of King’s Bench in 1772 held that slav- University Medical School, and Charles, Governor of Vermont ery was too odious to exist without positive legislation, and from 1841 to 1843. there being none in England, any slave brought there—in Elijah Jr. was born in 1796, graduated from Harvard in 1814 Somerset’s case, from Virginia —became free;5 United States ex and studied at the Litchfield Law School. He was a law partner rel. Wheeler v Williamson,6 a perverse “habeas corpus” proceed- of Henry Wheaton and assisted in the preparation of the twelve ing in federal court in Philadelphia in 1855 which has inspired volumes of Wheaton’s U.S. Supreme Court Reports from 1816 legal and literary outrage from the time it occurred to the pres- to 1827. In 1827 Paine published Volume I of Reports of Cases ent day; 7 and finally, the decision of the Supreme Court of the Argued and Determined in the Circuit Court of the United States for United States in the case of Dred Scott v Sanford.8 Yet, lacking the the Second Circuit. A second volume of his reports was pub- precedential significance of Somerset and Dred Scott and the lished posthumously in 1856. drama of Wheeler, the Lemmon Slave Case is almost unknown Paine was elected to the Superior Court in 1850 and served and rarely mentioned in otherwise comprehensive works.9 until his death in 1853. The best information available about the jurisdiction of that Court, its origins and the rather unusu- THE JUDGE AND THE COURTS al court structure in New York derives from the two-volume The Lemmon Slave Case originated in an application for a writ work published in 1830, The Practice in Civil Actions and of habeas corpus filed November 6, 1852, in the Superior Proceedings at Law in the State of New York in the Supreme Court Court of the City of New York before Judge Elijah Paine, Jr., by and Other Courts of the State, written by Paine and William Louis Napoleon, described in the record simply as “a colored Duer, later district attorney for Oswego County and then a con- gressman. The Superior Court had civil jurisdic- tion within the City and County of New York much like the Supreme Court, and indeed cases filed in the Supreme Court could be remanded to the Superior Court on consent of the parties. Review of its judgments lay in the Supreme Court. The Supreme Court, despite its wide original and appellate jurisdiction at the time Paine and Duer were writing, was no more the State’s highest court than it is today. From the for- mation of the State until ratification of the 1846 Constitution, the ulti- mate judicial authority was not the Court of Appeals but rather the Court for the Trial of Depiction of the rescue in United States ex rel. Wheeler v Williamson. Members of the Pennsylvania Anti-Slavery Society help Impeachments and the the household slaves of the U.S. Minister to Nicaragua gain their freedom while in transit through Philadelphia in July, 1855 Correction of Errors,

8 which — as strange as its name — was composed of the Justices of the Supreme Court, the Chancellor and the president and all the members of the State Senate, the latter a far larger group than all the full-time judicial participants. The Court of Appeals which would ultimately resolve the Lemmon Slave Case in 1860 was in its initial configuration, composed of four Judges of the Court of Appeals and four Justices of the Supreme Court, sitting together.

NEW YORK LAW OF SLAVERY New York’s progress towards emancipation was in substantial part the work of John Jay, its first Chief Justice and later — after his service as Chief Justice of the United States Supreme Court — its Governor, and of his son William, for many years a judge in Westchester County. John Jay had strongly supported the leg- islative extirpation of slavery in New York from the time of the Revolution and was the first president of the New York Manumission Society, founded in 1785. William, in addition to being a judge and founding the American Bible Society, devoted his life to the promotion of emancipation, wrote numerous tracts against slavery and appeared in court on behalf of slaves.10 Nor did he stop there. In a December 1858 letter to his son, John Jay, shortly after William Jay’s death, Stephen Myers, who ran the Underground Railroad for fugitive slaves in Albany, wrote: Governor’s Communication: Report by the Governor of Virginia denouncing I will just give a statement of the number of fugitives Honorable Elijah Paine’s decision that your father has sent here within the last eight years before his death: 3 from Norfolk Va. 2 from 1817, ch 137). When the Legislature repealed this latter provi- Alexandria 2 from New Orleanes. Last tow he sent me sion (L 1841, ch 247), New York State became legally slave- were from North Carolia. The sevral checks your father free.12 sent me from time to time amounted to fifty Dollars In November 1852, into this legal framework blundered on the Albany State Bank. In his death all lost a true Jonathan Lemmon and his wife Juliet in transit from Norfolk, freind to humanity. And yet he remembered the poor Virginia, through New York to Texas, with Juliet’s eight house- fugitive in defianc[e] of the Law. Yours very Respectfully, hold slaves: a man, two women and five children, between the ages of two and 23. Stephen Myers supt of the underground RR11 THE PROCEEDINGS IN THE SUPERIOR COURT In 1852 when proceedings in the Lemmon Slave Case The case was a simple one. On the evening of November 5, began, New York had completed its course of gradual legislative 1852, the “City of Richmond” steamship arrived in New York emancipation. In 1785, a bill for the immediate abolition of Harbor from Norfolk. Mr. and Mrs. Lemmon and her house- slavery passed the Legislature, but it was disapproved by the hold slaves disembarked and lodged in a boarding house at Council of Revision because the Assembly had insisted on Three Carlisle Street. including a provision withholding from freed slaves the right to Louis Napoleon swore out his application for a writ of vote. In February 1788, the Legislature passed, and Governor habeas corpus the next day, Justice Paine granted the writ and George Clinton signed, “An Act Concerning Slaves” (L 1788, ch the slaves were brought before the court by a New York City 40), prohibiting the sale of slaves brought into the State and constable and remanded to police custody. the exportation of any slave for sale outside of the State, and The slaves were represented by Erastus Culver, a well-known providing a mechanism for the voluntary manumission of anti-slavery lawyer in Brooklyn, who had been a member of the slaves. A 1799 statute guaranteed eventual freedom to all chil- House of Representatives in the 1840s and would be appointed dren born of slaves after July 4, 1799 and provided a mecha- Minister to Venezuela by President Abraham Lincoln, and by nism for their immediate manumission (L 1799, ch 62). After John Jay, son of Judge William Jay and grandson of the Chief several additional enactments protecting slaves against forced Justice. expatriation and recognizing slave marriages and rights to own On November 9, Jonathan Lemmon made a return that for property, the Legislature provided for the emancipation of all the past several years the slaves had been his wife’s inherited slaves born prior to 1799, but permitted non-residents to enter property under the laws of Virginia and thus not illegally con- New York with their slaves for periods up to nine months (L fined, and that they were in transit through New York for only

Continued on page 10

9 The Lemmon Slave Case, continued from page 9

so long as would be required to board another vessel bound for their next annual messages. The Virginia General Assembly Texas, whose laws also would recognize their status as slaves. appropriated money to retain appellate counsel in New York On this return, the Court heard argument and reserved deci- to obtain a reversal of Justice Paine’s ruling. In 1855, the New sion until November 13, when Justice Paine found that the York State Legislature responded by providing a similar appro- slaves were free and discharged them from custody. priation for counsel to sustain Justice Paine’s ruling on the In his opinion, Justice Paine found that in 1841, the New appeal the Lemmons had taken to the Supreme Court. York Legislature had abolished slavery within the State in all Finally, on March 6, 1857, the Supreme Court of the United forms and under all circumstances, a conclusion that was never States decided Dred Scott, a case which had begun its journey overruled or indeed seriously challenged in the subsequent through the courts in 1846. Scott was purchased in Missouri, a appellate proceedings. He concluded that the distinct provi- slave state, by an army surgeon who later took him to Fort sions in the United States Constitution specifically addressing Armstrong at Rock Island, Illinois, a free state, and to Fort slavery removed it from the collateral application of more gen- Snelling, near what would become St. Paul, Minnesota, an area eral provisions like the Commerce Clause, and that the closed to slavery by the Missouri Compromise of 1820. After Privileges and Immunities Clause gave the traveler the rights of returning to Missouri in 1843, Dr. Emerson died, and in 1846 citizens in the state he or she was in, not the one the traveler Scott sued his widow in the Missouri courts for his freedom on had come from. Finally, he ruled that the provisions of the Law the basis that he had been emancipated by his earlier residence of Nations, authorizing the transportation of goods in transit in Illinois and at Fort Snelling. After two trials and two appeals through other countries in the possession of their owner, could to the Missouri Supreme Court, that Court applied its domes- not apply by analogy because under the Law of Nations slaves tic substantive law to Scott and held that he was still and were not goods. always had been a slave, reversing a favorable trial verdict for On November 19, 1852, the Lemmons’ counsel, H.D. Scott and overruling its own earlier precedents. Scott proceed- Lapaugh, applied for a writ of certiorari to obtain review of ed to the United States Circuit Court, bringing an action in Justice Paine’s decision in the Supreme Court. Five years would 1854 against John Sanford, Mrs. Emerson’s brother, to whom elapse before that review would occur. ownership of Scott had been transferred. After losing at trial on the application of Missouri law he had earlier established, Scott applied to the Supreme Court of the United States for WAITING FOR DRED SCOTT: NOVEMBER 1852 TO review.14 MARCH 1857 The case was first argued in February 1856 and reargued in According to the memorial written by Justice Paine’s brother, December. On March 6, 1857, a seven-to-two majority of the Martyn Paine, and published as an introduction to the posthu- Supreme Court held that Scott was still a slave. The greatest mous Volume 2 of Paine’s Reports (1856), Justice Paine “felt number of the Justices held that Scott’s status was governed by the hardship of the case; and no sooner had he disposed of the the law of the state where he was, Missouri, the highest court claim, than he set on foot and headed a subscription by which of which had affirmed Scott’s continuing status as a slave. the owner was reimbursed the full value of the property which Chief Justice Taney, joined by two concurring Justices, went had been in ignorance forfeited to the law.” Newspaper much further, holding also that slaves and their descendants, accounts in 1857 cast further light on Dr. Paine’s rather naïve whether slave or free, could never be citizens of the United presentation of what his brother actually did. The payment to States or of any individual state and thus could never sue in the the Lemmons was exchanged for a bond: courts of the United States. He also concluded that Congress had been without constitutional power to enact the Missouri SUPREME COURT – The People of the State of New York Compromise excluding slavery. However, Justice Nelson’s con- ex rel. Louis Napoleon vs. Jonathan Lemmon curring opinion, which may originally have been the opinion Know all men by these presents, that we, Jonathan Lemmon of the Court and ultimately staked out the position most of the and Juliet his wife of Bath County, in the State of Virginia, Justices supported, contained an aside of particular signifi- for good and valuable consideration, the receipt whereof we cance to the Lemmon Slave Case: hereby acknowledge, do covenant and agree that at any time A question has been alluded to, on the argument, namely: the after the final decision and termination of this matter in the right of the master with his slave of transit into or through a last court to which it can be taken, carried or appealed, in the free State, on business or commercial pursuits, or in the United States of America, shall be made or pronounced, we exercise of a Federal right, or the discharge of a Federal duty, shall manumit and discharge from labor and service the eight being a citizen of the United States, which is not before us. slaves in question herein and recently discharged and set at This question depends upon different considerations and liberty by the Honorable Elijah Paine, upon request for such principles from the one in hand, and turns upon the rights manumission and discharge in writing made of us or the and privileged secured to a common citizen of the republic survivor of us by the Hon. Elijah Paine, Walter R. Jones, esq., under the Constitution of the United States. When that and James Boorman, esq., all of the City of New York, or any question arises, we shall be prepared to decide it. 60 U.S. two of them, or of the survivor thereof. 393, 468. The bond was signed by both Lemmons and witnessed by The relationship between Dred Scott and the Lemmon Slave their lawyer on November 24, 1852.13 Case was palpable. Denouncing the Dred Scott decision two The case became a political football. The Governors of days after Dred Scott came down, in its March 9, 1857 edition Georgia and Virginia denounced Justice Paine’s decision in the Albany Evening Journal predicted:

10 ...O’Conor proclaimed the “blessings” that slavery brought to its “inferior” and “dependent” victim...

The Lemmon Case is on its way to this corrupt fountain of delayed while Chief Justice Taney rewrote his decision in an law. Arrived there, a new shackle for the North will be effort to meet more effectively the stinging dissent of Justice handed to the servile Supreme Court, to rivet upon us. A Benjamin Robbins Curtis. The parties had earlier submitted decision of that case is expected which shall complete the their briefs without benefit of that decision. In response to the disgraceful labors of the Federal Judiciary in behalf of Slavery request for adjournment, then Presiding Justice Mitchell asked — a decision that slaves can lawfully be held in free States, “whether this was a bona fide controversy or a case made up for and Slavery be fully maintained here in New York through the purpose of having an abstract question disposed of. If the the sanctions of “property” contained in the Constitution. alleged owner of the slaves had been indemnified, what ques- That decision will be rendered. The Slave breeders will tion was there then for the Court to pass upon?” O’Conor 15 celebrate it as the crowning success of a complete conquest. demurred but offered to look into it. When the case was called for argument on October 1, 1857, The New York State Legislature responded with similar out- before five Justices of the Supreme Court, “Mr. Jay” reappeared rage. On April 7, 1857, a joint committee of the Senate and the briefly, not as counsel but as amicus curiae, arguing that the Assembly, led by former New York Court of Appeals Judge bond between the Lemmons and Justice Paine, quoted above, Samuel A. Foot, reported the following resolution, which reduced the case to a feigned political controversy between two carried: states. There seemed little pretense on the latter point, as the submissions of Evarts and Blunt identified them as “counsel for the People of the State of New York.” The Court chose to let the R E S O L U T I O N S. case proceed, however, on the stated ground that, although the Resolved, That this State will not allow Slavery within her Lemmons had been paid for the slaves, they had not actually 16 borders, in any form, or under any pretence, or for any manumitted them and therefore still had an interest in them. time. Perhaps the arrangement between Justice Paine and the Lemmons had been an imperfect effort by the anti-slavery Resolved, That the Supreme Court of the United States, forces to moot the case for appellate purposes and protect by reason of a majority of the Judges thereof, having Justice Paine’s decision as a precedent. identified it with a sectional and aggressive party, has The argument proceeded on October 1, 2 and 5 before five impaired the confidence and respect of the people of Justices of the Supreme Court, with emphasis on the this State. Commerce Clause of the United States Constitution by O’Conor, leading to predictions in the press that the slave trade Resolved, That the Governor of this State be, and he hereby would shortly resume in New York. But it was not to be. In a is, respectfully requested to transmit a copy of this report, brief opinion for the Court by Presiding Justice Mitchell, with the law above mentioned, and these resolutions, to the Justice Roosevelt dissenting, the Court held that the Legislature respective Governors of the States of this Union. had intended to exclude slavery completely from the State, that this legislative decision was a valid exercise of state police pow- ers, that slavery was a matter for state regulation and that inter- state commerce was not implicated because the Lemmons’ sea THE LEMMON SLAVE CASE BEFORE THE NEW YORK voyage had ended at the time the writ was taken out. On SUPREME COURT January 4, 1858, an appeal to the New York Court of Appeals The Dred Scott decision brought the appeal in the Lemmon was taken in the name of Jonathan Lemmon. Slave Case to the fore, and on May 7, 1857, the champions of New York and Virginia answered the calendar in the Supreme Court. New York had retained William M. Evarts, one of the THE LEMMON SLAVE CASE IN THE NEW YORK two great advocates at the New York bar, destined to be COURT OF APPEALS Attorney General of the United States under President Andrew The case was argued before a full eight-judge bench on January Johnson, Secretary of State under President Rutherford B. 24, 1860, by Charles O’Conor for Virginia and William Evarts Hayes and later United States Senator, assisted by Joseph Blunt. and Joseph Blunt for New York. In place of Erastus Culver, who Virginia had retained Evarts’ only serious rival at the New York had been attorney for respondents from the outset and was on bar, Charles O’Conor. Born in New York in 1804 to a father the briefs in the Court of Appeals, a young anti-slavery attorney who had fled Ireland after the uprising of 1798 and having who had been associated with him in practice in the early pulled himself up by his own bootstraps to the top of the Bar, 1850s appeared instead: Chester A. Arthur, a future President of O’Conor was pro-Southern and pro-slavery, a strange and bit- the United States. ter man whose last important retainers were the defense of The arguments of the counsel ranged very widely over many Jefferson Davis on treason charges after the Civil War and the issues involving slavery that had little to do with the legal implacable pursuit of “Boss” Tweed. issues before the Court, as Justice Clerke complained in his dis- On May 7, both Evarts and O’Conor proposed an adjourn- sent. For example, O’Conor proclaimed the “blessings” that ment so that all concerned could obtain and digest the opin- slavery brought to its “inferior” and “dependent” victims and ions in the Dred Scott case, the publication of which had been insisted that slavery conflicted with neither law nor natural jus- Continued on page 12

11 The Lemmon Slave Case continued from page 11

tice. He sneered at Lord Mansfield’s them, and congressional legislation had opinion in Somerset – “to that opinion not exclusively occupied the field. very little respect is due”– and distin- Justice Wright, also voting to affirm, guished it on the basis that even if slav- took much more aggressive positions. ery had never been part of the statutory He denied that the United States law of England, it had been recognized Constitution granted any power affecting in every colony, and by the legislature of domestic slavery except in the Fugitive every state, that formed part of the origi- Slave Clause, and that the Commerce nal thirteen states. In the end, he taunted Clause did not touch the acknowledged the North for hypocrisy about slavery: power of a state to refuse to allow slaves “But what must be thought of the in its territory, for any purpose. inhabitants of the Free States, who Justice Clerke, dissenting, acknowl- know that it is wicked, who say that edged the intent of the Legislature but it is wicked, who write upon their held that by analogy to the Law of statute books, in their supreme, Nations, citizens of other states passing sovereign capacity, that it is wicked, in transit through New York must be and who yet live under a constitution allowed to pass with their property and compact by which they agree to unmolested by the application of New support and sustain it to the full York substantive law, and that under extent of whatever is written in that Chief Justice Taney’s opinion in Dred compact . . .”17 Scott, slaves were property. Chief Judge Portrait of Court of Appeals Judge Comstock and Judge Selden, in brief Evarts’s argument was far more meas- William B. Wright by permission of the New York Court of Appeals from its opinions, expressed concern at the viola- ured, to the point and less impassioned, collection tion of comity and justice in interstate as was his nature. He relied upon the relations wrought by the New York New York statutes’ unequivocal declara- statute. tion, turned to the provisions of Dred Scott and earlier Supreme Court deci- sions for categorical statements that the THE END OF THE CASE existence of slavery was a matter for the Professor William Wiecek, undoubtedly law of each state, and praised and justi- the most knowledgeable scholar on the fied the evolution of English law, con- subject, reports: trasting it with more recent North The owner appealed the decision to the Carolina jurisprudence – read into the United States Supreme Court, and record in full – immunizing barbarous antislavery propagandists panicked, behavior towards slaves by their owners. fearing that a reversal of the New York In answer to O’Conor’s claim that the judgment would establish slavery in the Privilege and Immunities Clause protect- free states. The onset of war aborted this ed the Lemmons during their passage possibility, and Lemmon today is through New York, Evarts responded forgotten; but in its brief historical that the Lemmons were entitled to and moment it marked the uttermost had been accorded the same privileges Portrait of Ex Officio expansion of the libertarian implications and immunization as its citizens, not Court of Appeals of Somerset.18 those of Virginia. Evarts left the Judge Hiram Denio Commerce Clause to his brief; by permission of the New York Court of O’Conor’s lengthy argument had includ- Appeals from its col- ENDNOTES ed it, but only in passing. lection The Court of Appeals announced its 1. See Don E. Fehrenbacher, The Slaveholding decision in March 1860. In contrast to Republic-An Account of the United States Government’s Relations to Slavery at 135-204 the advocates arguments, the Commerce (Oxford 2001); Warren S. Howard, American Clause issues engaged both opinions for the majority of the Slavers and the Federal Law 1837-1862 (Berkeley 1963). Court of Appeals, which split 5-3 in affirming the judgments 2. See Dwight F. Henderson, Congress, Courts, and Criminals: The Development of below. For Judge Denio, who wrote one of the two opinions Federal Criminal Law, 1801-1829 at 161-207 (Greenwood Press 1985); Robert M. supporting affirmance, the clear policy of New York foreclosed Cover, Justice Accused: Antislavery and the Judicial Process (Yale 1975); Stanley W. Campbell, The Slave Catchers: Enforcement of the Fugitive Slave Law, 1850-1860 arguments based on comity and the Law of Nations. The only (Chapel Hill 1968). issue was constitutional preclusion: he found none in the 3. See Paul Finkelman (ed.), Fugitive Slaves and American Courts: The Pamphlet Privileges and Immunities Clause, and while he hypothesized Literature (4 vols., Garland Publishing Co. 1988); Jacob R. Shipherd, History of particular cases in which the Commerce Clause could protect the Oberlin-Wellington Rescue, (Boston 1859); James R. Robbins (ed.), Report of the Trial of Castner Hanway for Treason, in the Resistance of the Execution of the slave property in interstate commerce, this was not one of

12 Letters to the Editor continued from page 2

enough to argue several such applica- responded, “McLucas is unfortunately a tions before Judge Fuld over those four ‘dead letter.’” Even though it was at that years. I had been told by more than point patent, even to me. that my Fugitive Slave Law of September, 1850 (Philadelphia 1852); Albert J. Von Frank, one of my law school professors that application was not going to prevail, The Trials of Anthony Burns: Freedom and there were three great Common Law the always courteous, courtly jurist dis- Slavery in Emerson’s Boston (Harvard 1998); Gary Collison, Shadrach Minkins: judges in the United States at that time played the utmost patience, permitting From Fugitive Slave to Citizen (Harvard (the mid-1960s), the Chief Judges (or me to argue at whatever length I 1997); Stephen Weisenburger, Modern Medea: A Family Story of Slavery and Child- Justices) of New York (Fuld), Illinois deemed necessary the several sub- Murder from the Old South (Hill and Wang (Schaefer) and California (Traynor). So sidiary points I had advanced. 1998). it was with a fair degree of trepidation Moreover, unlike the Judge’s manifold 4. Somerset v Stewart, 98 Eng.Rep. 499 (K.B. that I first enterered chambers at 36 1772). law clerks, such as Ken Feinberg and West 44th Street. Judge Weinstein, I, as an outsider, 5. Somerset is the subject of scholarly and popular treatments too numerous to list My nerves were further agitated when never witnessed the displays of Fuldian here. The most recent, an excellent and my adversary, the highly regarded temper described in the newsletter arti- original analysis, is Steven M. Wise, Though the Heavens May Fall: The William I. Siegel, head of the Appeals cle. In fact, the only time I ever saw Landmark Trial That Led to the End of Bureau in the Kings County District Judge Fuld lose his temper was in the Human Slavery (Da Capo 2005). Attorney’s Office, informed me that he, Court of Appeals itself. And on that 6. United States ex rel. Wheeler v Williamson, 28 F.Cas. 686 (E.D. Pa 1855) (No. as a young lawyer, had come to these occasion the manifestation of anger 16726). very chambers to argue a leave applica- was not the kind of “tough love” the 7. See Alfred Conkling, A Treatise on the tion before Chief Judge Cardozo. judge displayed toward his clerks. It Organization Jurisdiction and Practice of the When Mr. Siegel and I were invited to was genuine anger, the kind Courts of the United States at 79 n. (Albany 1856); Richard Hildreth (ed.), Atrocious appear before Judge Fuld, the judge reserved for attorneys guilty of prevari- Judges. Lives of Judges Infamous as Tools of welcomed us, made it clear that he cation. On the occasion in question, Tyrants and Instruments of Oppression (New York 1856); William Still, The understood we were there on a serious the assistant district attorney appearing Underground Rail Road (Philadelphia matter and got right down to business. for respondent in the case before mine 1872); Lorene Cary, The Price of a Child (Knopf 1995); Hannah Crafts, The As the principal point I had raised in had, it was clear to Chief Judge Fuld, Bondwoman’s Narrative (Warner Books my leave-application letter presented misrepresented the facts of his case. 2002) (Henry Louis Gates, ed.). an “unpreserved,” i.e., unobjected-to, The Chief spun around in his swivel 8. Dred Scott v Sanford, 60 U.S. 393 (1856). issue, Judge Fuld stated at the outset chair, and when the ADA was foolish 9. The case is discussed in Francis J. Bergan, that the court on which he sat was a enough to continue with his presenta- The History of the New York Court of Appeals, 1847-1932 at 68-70 (Columbia court of limited jurisdiction, restricted tion, Judge Fuld stood and ordered the 1985), and in Paul Finkelman, An by Art. I, Sec. 3, of the New York State prosecutor to sit down. The latter Imperfect Union: Slavery, Federalism and Comity at 296-312 (Chapel Hill 1981). Constitution to determining “questions sheepishly complied. 10. See Bayard Tuckerman, William Jay and the of law.” When I, citing the majority In sum, I am grateful to have had the Constitutional Movement for the Abolition of opinion (in which he had joined) in opportunity to practice before the Hon. Slavery (New York 1893); William Jay, Miscellaneous Writings on Slavery (New People v. McLucas, 15 N.Y.2d 167 (1965 Stanley Fuld. I once told my Legal Aid York 1853). ), argued that deprivation of certain boss, Will Hellerstein, now of Brooklyn 11. C. Peter Ripley (ed.), IV The Black fundamental constitutional rights may Law School, that arguing before the Abolitionist Papers: the United States 1847- be considered on appeal to the Court 1858 at 407- 409 (UNC 1991)(spelling in Court of Appeals was so enjoyably original). of Appeals even in the absence of a challenging that I would gladly pay for 12. Edgar J. McManus, A History of Negro specific, timely objection, the Judge the privilege of doing so. Slavery in New York at 161-179 (Syracuse 2001) (paperback). Donald H. Zuckerman 13. N.Y. Daily Tribune, October 3, 1857. Northampton, MA 01060 Boorman was one of the founders and president of the Hudson River Railroad and a founder of the Bank of Commerce. Jones was a founder of the Atlantic Mutual Insurance Co. ROBERSON ENDNOTES 14. See Don E. Fehrenbacher, The Dred Scott continued from page 7 Case—Its Significance in American Law and 10. Current Topics, 63 Alb. Politics at 239-285 (Oxford 1978). L. J. 337 (1901). 1. 171 N.Y. 538 (1902). 15. The Day Book, May 12, 1857. 11. Schuyler v. Curtis, 147 2. Rochester Democrat & Chronicle, Jan. 15, 1967, at N.Y. 434 (1895). 16. See Note 13. 3A, col. 3. 12. Pavesich v. New 17. The quotations from the arguments and 3. Samuel Warren & Louis Brandeis, “The Right of England Life Ins. Co., opinions are taken from the pamphlet Privacy,” 4 Harv. L. Rev. 193 (1890). 122 Ga. 190, 50 S.E. report of the case published in 1860 by 4. “The Right of Privacy,” N.Y. Times, Aug. 23, 1902, 68 (1905). Horace Greeley, New York Court of at 8, col. 3. 13. See Rochester Democrat Appeals—Report of the Lemmon Slave Case. 5. Gordon, “The Right of Privacy,” 22 Can. L. Times & Chronicle, supra note 18. W.M. Wiecek, “Somerset: Lord Mansfield 281, 285, 288 (1902). 2. and the Legitimacy of Slavery in the Anglo- 6. N.Y. Times, Oct. 26, 1902, at 5, Col. 1. 14. Messenger v. Gruner + American Word,” 42 U Chi L Rev 86, 136- Jahr Printing & 137 (1974). 7. 47 Collier’s Weekly 3 (1902). Publishing, 94 N.Y.2d 8. Comment, 46 Harper’s Weekly 984 (1902). 436, 441, 706 N.Y.S.2d 52 (2000). 9. Denis O’Brien, “The Right of Privacy,” 2 Colum. L. Rev. 437 (1902). 15. Howell v. N.Y. Post Co., 81 N.Y.2d 115, 123-24, 596 N.Y.S.2d 350, 354 (1993).

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PATRON John J. Halloran, Jr. Patricia M. Hynes & Roy L. Reardon NBTY, Inc. New York State Bar Association MEMBERS 2006 Speiser, Krause, Nolan & Granito Verizon Corporation

CONTRIBUTING SPONSOR Susan K. Knipps Helaine Barnett John Austin Howard B. Levi Barbara A. Brinkley Phillip J. Bergan A. Thomas Levin Edward R. Finch, Jr. Burke, Miele & Golden, LLP Howard A. Levine & Barbara S. Levine Judith S. Kaye & Stephen Rackow Kaye Henry Christensen, III Robert MacCrate Evan Krinick Michael A. Cooper John B. Nesbitt E. Leo Milonas John D. Feerick David D. Siegel Leon B. Polsky Henry M. Greenberg & Hope B. Engel Guy Miller Struve Susan P. Read John H. Gross Stephen P. Younger Albert M. Rosenblatt Margaret M. Hill John Siffert Mark F. Hughes, Jr. FRIEND Leon Silverman Michael J. Hutter John R. Dunne Joseph Jaffe Arnold B. Gardner Mrs. William N. Jeffers Howard T. Everson Barry Kamins Barry H. Garfinkel

INDIVIDUAL Laurence G. Bodkin, Jr. Peter V. Coffey Joyce Adolfsen Eileen Buholtz Harold Cohen Louis G. Adolfsen Brian D. Burns Charles D. Cole, Jr. Mark H. Alcott John Caher Robert J. Collini Helaine Y. Alpert Peter C. Canellos Susan J. Deith Howard F. Angione Anthony V. Cardona Lisa DellAquila John M. Armentano John Casolaro Bernard D’Orazio George R. Bartlett, III. Michael A. Chapnick Mark Dwyer Ariel E. Belen David M. Cherubin Richard Enoch Mark Bloustein Merrell E. Clark, Jr. Ted Ermansons Erik Jonathan Blum Penelope D. Clute Linda Fairstein

14 Haliburton Fales Malvina Nathanson Dennis John Boyle T. Richard Kennedy Mark G. Farrell Alicia M. Nemec John J. Brennan Kathleen D. Krauza Kenneth R. Fisher Thomas Newman Mary S. Brennan Katherine D. LaBoda Steven Flanders Juanita Bing Newton Charles L. Brieant, Jr. Daniel K. Lalor James D. Folts Bernard Nussbaum Michael Bruhn Dan Lamont Peter M. Forman Brian O’Connor John T. Buckley Judy A. Lauer Sallie Fried Norman A. Olch Stephen F. Calacone Tiffany H. Lee Antonio Galvao Fabian G. Palomino Linda Cantoni Gordon W. Lyon Stanley Gartenstein Alan J. Pierce Thomas J. Carroll David J. Mahoney Richard C. Giardino Robert M. Pitler Carmen Beauchamp Ciparick Robert Mandelbaum Richard Godosky Mary Redmond Peter D. Coddington Lawrence K. Marks Steven H. Goldberg M. Catherine Richardson Stuart Cohen George D. Marlow Norman Goodman Walter Rivera David M. Cohn Dominic R. Massaro Victoria Graffeo Nicholas A. Robinson John Connell Angela M. Mazzarelli Frank A. Gulotta, Jr. Nancy Rogowski Greg Conrad Thomas E. Mercure Conrad K. Harper Robert S. Rose Alfred D. Cooper, Sr. Frederick Miller Charles Centerfit Hart Barbara Rowin Matthew F. Cooper Deborah Modica Historic Salem Courthouse Mark Rowin Raymond E. Cornelius Abel Montez Preservation Association, Inc. Patricia Everson Ryan Peter E. Corning Michael F. McEneney Angela G. Iannacci Arthur V. Savage Mary Lou Crowley Michael J. McGourty William N. Jeffers Philip R. Schatz Janet DiFiore J. Kevin McKay Gregory P. Joseph Gabriel North Seymour Thomas J. Dolan Thomas McKevitt Bentley Kassal Whitney North Seymour Barry M. Donalty William E. Night Andrew L. Kaufman Charles E. Shields III William C. Donnino Robert W. Olivari Robert G. M. Keating Andrew J. Simons W. Dennis Duggan James E. Pelzer Paul F. Kelly Richard E. Sise Frances Dumas Erin M. Peradotto Henry J. Kennedy Lewis M. Smoley William F. Eberle Eugene A. Preudhomme Jean M. Kestel Merril Sobie Betty Weinberg Ellerin Michael J. Pulizotto Henry L. King W. Howard Sullivan Kenneth Falk Richard A. Reed Steven C. Krane Stuart A. Summit Jeremy R. Feinberg Thomas M. Ross Abraham B. Krieger Sharon S. Townsend Rosemarie Fitzpatrick Allen H. Saperstein James P. Lagios Michael Trainor Martin Fogelman Jack E. Schachner Craig A. Landy Richard Tuske Mark D. Fox Arthur M. Schack Carolyn Snyder Lemmon Christine W. Ward Helen E. Freedman Thomas Scuccimarra Alfred D. Lerner William M. Wiecek John A. Fusco Beatrice Shainswit Matthew S. Lerner Patricia Anne Williams Phyllis Gangel-Jacob Jacqueline W. Silbermann Lou Lewis Joseph A. Wilson Bernard E. Gegan Jonathan J. Silbermann Jonathan Lippman Michael Wolford James D. Gibbons Robert J. Sise Scott Lustig Thomas F. Gleason Stanley L. Sklar Jordan D. Luttrell PUBLIC SERVICE/ Stephen S. Gottlieb Edward O. Spain Robert G. Main, Jr. RETIREE/STUDENT Martha L. Greene Gary Spivey Adeel Abdullah Mangi Suzanne Aiardo Sidney Gribetz Christine A. Sproat Marilyn Marcus Howard M. Aison Stephen Guarneri Albert Stallone Ira Brad Matetsky Daniel D. Angiolillo Jacqueline Guidarelli-Wu Maryrose Thompson James C. Moore Frank H. Armani H. Glen Hall Inez M. Tierney Jeffrey B. Morris Stephen M. Aronson James W. Harbison, Jr. Joseph Tinger Frances Murray Lawrence Baron Gerald V. Hayes Alan J. Warnecke Marjorie S. McCoy Justin Barry Frederic T. Henry, Jr. Alfred J. Weiner David McCraw Joy Beane Ta-Tanisha James Jack B. Weinstein Joseph D. McGuire Susan L. Beberfall Linda S. Jamieson William L Weinstock Joseph T. McLaughlin Carl F. Becker David Jung Stephen Weiter John T. McManus Lisa Becker Anthony Kane Harold Wolfe Marshall J. Nachbar A.S. Ben-Merre David Kaplan Donald Zuckerman

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The Historical Society of the Courts of the State of New York

APPLICATION FOR MEMBERSHIP

NEW MEMBERSHIP RENEWAL As a not-for-profit entity, the Historical Society depends on annual membership dues, gifts and grants for financial support. There are seven categories of membership (Please check one): NAME: PUBLIC SERVICE / RETIREE / STUDENT . . $ 25. ADDRESS: INDIVIDUAL ...... 50. FRIEND ...... 100. CITY/STATE/ ZIP: SPONSOR ...... 250. CONTRIBUTING ...... 500. TELEPHONE: ( ) PATRON ...... 1,000. INSTITUTIONAL ...... 2,500. E-MAIL ADDRESS: SUSTAINING ...... 5,000. PAYMENT METHOD: CREDIT CARD: Payment on-line at: BUSINESS / PROFESSIONAL POSITION: www.courts.state.ny.us/history/membership.htm

CHECK (Please make payable to: The Historical Society of the Courts of the State of New York.)

THE HISTORICAL SOCIETY OF THE COURTS OF THE STATE OF NEW YORK 84 NORTH BROADWAY, WHITE PLAINS, NEW YORK 10603 [email protected] For gift memberships or more information, please call 914-993-4209, or e-mail:

The Historical Society of the Courts of the State of New York

NEW YORK STATE JUDICIAL INSTITUTE 84 NORTH BROADWAY WHITE PLAINS, NEW YORK 10603

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