Osborn v. Nicholson

The citation for this case is 80 US [13 Wall.] 654.

Henry T. Osborn was the plaintiff and Young A. G. Nicholson was the defendant. They lived in Arkansas, and Osborn had sold a 23-year-old enslaved man to Nicholson for $1300 and Nicholson had made out a promissory note, dated March 26, 1861. The bill of sale said, “For the consideration of $1300 I hereby transfer all the right, title, and interest I have to a negro boy named Albert, aged about twenty-three years. I warrant said negro to be sound in body and mind, and a slave for life; and I also warrant the title to said boy clear and perfect.” [80 US 654, 655]

On January 1, 1862, United States troops liberated this enslaved person and the 13th Amendment as well as the Arkansas Constitution of 1868 later outlawed slavery. As a result, since he was no longer a slave for life, Nicholson refused to pay off the promissory note. Osborn sued, and the Arkansas court ruled against him. The case went to the District Court for the Eastern District of Arkansas in 1870, which also ruled for the defendants. You can see that Federal Case here.

Justice Noah H. Swayne delivered the opinion of the court. Justice Swayne wrote, “It may be safely asserted that this contract when made could have been enforced in the courts of every state of the Union and in the courts of every civilized country elsewhere. In the celebrated case of Somerset, Lord Mansfield said: ‘A contract for the sale of a slave is good here; the sale is a matter to which the law properly and readily attaches, and will maintain the price according to the agreement. But here the person of the slave himself is immediately the object of inquiry, which makes a very material difference.’ Nor is there any question as to an implied warranty, of title or otherwise. There being an express warranty, that must be taken to contain the entire contract on the part of the seller. This warranty embraces four points: that the slave was sound in body, that he was sound in mind, that he was a slave for life, and that the seller’s title was perfect.” [80 US 654, 656-657] Basically, this was a legal contract and there were no irregularities involved.

Justice Swayne also wrote, “All contracts are inherently subject to the paramount power of the sovereign, and the exercise of such power is never understood to involve their violation, and is not within that provision of the national Constitution which forbids a state to pass laws impairing their obligation. The power acts upon the property which is the subject of the contract, and not upon the contract itself. Such also is the rule of the French law, and such was the Roman law. The seller is not bound to warrant the buyer against acts of mere force, violence, and casualties, nor against the act of the sovereign. ‘After the bargain is completed, the purchaser stands to all losses.’ The case is one in which the maxim applies res perit suo domino.” [80 US 654 660]

In discussing the legality of slavery and slave contracts, Justice Swayne wrote, “It has been earnestly insisted that contracts for the purchase and sale of slaves are contrary to natural justice and right, and have no validity unless sustained by positive law; that the right to enforce them rests upon the same foundation, and that when the institution is abolished all such contracts and the means of their enforcement, unless expressly saved, are thereby destroyed. Slavery was originally introduced into the American Colonies by the mother country, and into some of them against their will and protestations. In most, if not all of them, it rested upon universally recognized custom, and there were no statutes legalizing its existence more than there were legalizing the tenure of any other species of personal property. Though contrary to the law of nature it was recognized by the law of nations. The atrocious traffic in human beings, torn from their country to be transported to hopeless bondage in other lands, known as the slave trade, was also sanctioned by the latter code. Where the traffic was carried on by the subjects of governments which had forbidden it, a different rule was applied. Humane and just sentiments upon the subject were of slow growth in the minds of publicists. The institution has existed largely under the authority of the most enlightened nations of ancient and modern times. Wherever found, the rights of the owner have been regarded there as surrounded by the same sanctions and covered by the same protection as other property. The British government paid for the slaves carried off by its troops from this country, in the war of 1812, as they did for other private property in the same category. The Constitution of the United states guaranteed the return of persons ‘held to service or labor in one state under the laws thereof, escaping into another.’ ‘The object of this clause was to secure to the citizens of the slaveholding states the complete right and title of ownership in their slaves as property in every state in the Union, into which they might escape.’ Historically it is known that without  this provision, the Constitution would not have been adopted and the Union could not have been formed. But without considering at length the several assumptions of the proposition, it is a sufficient answer to say that when the Thirteenth Amendment to the Constitution of the United States was adopted, the rights of the plaintiff in this action had become legally and completely vested. Rights acquired by a deed, will, or contract of marriage or other contract executed according to statutes subsequently repealed subsist afterwards as they were before, in all respects as if the statutes were still in full force. This is a principle of universal jurisprudence. It is necessary to the repose and welfare of all communities. A different rule would shake the social fabric to its foundations and let in a flood tide of intolerable evils. It would be contrary to ‘the general principles of law and reason,’ and to one of the most vital ends of government.” [80 US 654, 660-662]

In concluding, Justice Swayne said, “Whatever we may think of the institution of slavery viewed in the light of religion, morals, humanity, or a sound political economy, as the obligation here in question was valid when executed, sitting as a court of justice, we have no choice but to give it effect. We cannot regard it as differing in its legal efficacy from any other unexecuted contract to pay money made upon a sufficient consideration at the same time and place. Neither in the precedents and principles of the common law nor in its associated system of equity jurisprudence nor in the older system known as the civil law is there anything to warrant the result contended for by the defendants in error. Neither the rights nor the interests of those of the colored race lately in bondage are affected by the conclusions we have reached. This opinion decides nothing as to the effect of President Lincoln’s emancipation proclamation. We have had no occasion to consider that subject.” [80 US 654, 663]

The Court reversed the decisions of the lower courts and remanded the case back to the circuit court to proceed based on that ruling. Basically, the emancipation of the enslaved person by government action did not violate the warranty given that he was enslaved for life, and the full sum of the purchase price was due to the seller. The buyer was out the full $1300 with no compensation for the loss of the enslaved person.

While the Supreme Court reversed the actual decision of the lower courts, I think we’ll find the District Court decision instructive as well. Federal Judge Henry Clay Caldwell, a Lincoln appointee, wrote, “It is obvious that this question cannot be determined without an inquiry into the nature and incidents of slavery, and the relation which the national government sustained, and now sustains to that institution. That slavery is against the law of God and the law of nature, that slaves were regarded as persons and not property by the constitution of the United States, that it was only within the slave states they were regarded as property, that this status was stamped upon them by the local laws of those states and limited to their territorial operation, and that those laws, though expressed in the form of written constitutions and statutes, had in their origin no higher or better sanction than brute force, and were constantly held, even by the courts that enforced them, to be contrary to natural right are propositions established by the judgments of courts and opinions of jurists, whose judgments and opinions must be held to be conclusive upon every court having a decent respect for judicial precedent and authority.” [18 Fed. Cas. 846 (Case No. 10,595), 847]

In referring to the Somerset Case, Judge Caldwell wrote, “Lord Mansfield said: ‘The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only by positive law. * * * It is so odious that nothing can support it but positive law.’ And the court held that the relation of master and slave would not be recognized in any country where slavery did not exist, and that the moment a slave got beyond the operation of the local law which condemned him to slavery, he was free. This decision, pronounced a century ago, has remained the law of England. It was re-affirmed with emphasis in 1824, by the court of queen’s bench.” [Ibid.]

As he discussed the fact that slavery can only exist in a state whose laws allowed it, Judge Caldwell also takes on the assertion the Constitution recognized and protected slavery: “That slavery existed in the states independent of the constitution, must be admitted, but that that instrument gave any sanction to slave contracts, or that slavery derived any support from that instrument, save in the single particular already mentioned, is not true; and that it was contrary to the genius and spirit of our institutions and the fundamental principle upon which our government was founded, will scarcely be denied. We know that the states might destroy property in slaves, without compensation, by repealing the laws by which slavery was established, and we have seen that the right of property in slaves was lost the moment they were taken beyond the territorial operation of the laws that made them such. Now this was not, and is not, the case with any other species of property. No state could deprive its citizens of the right of property in their horses and cattle, without making compensation, and no state can deny to citizens of other states the right to bring such property, or any other species of property, with them, into such state. Crossing state lines does not affect the title to movable property of any kind. This right of every citizen to dwell in or pass through any state in the union, with his movable property, is guaranteed by the constitution of the United States, and exists by the law of nations. But no such right obtained by the constitution of the United States, or the law of nations, with reference to slaves. The right to movable property, and the rights growing out of contracts in reference to such property, are recognized and upheld by the common law of nations. But this code of universal obligation, securing to the owner his movable property in every state, and securing to all the rights growing out of contracts in reference to such property, has no application to slavery, and the rights growing out of it. The comity of states and nations does not demand the enforcement of slave contracts any more than it demands the recognition of the claim of the master to his slave, and the law of nations, and the common law, deny all remedy on contracts and rights claimed by virtue of the slave code, in courts of free states.” [Ibid., 849]

While the Supreme Court overruled Judge Caldwell’s eventual ruling, it’s instructive they seemed to have no problem with the above sections. This is in contrast to those who would claim the Constitution protected slavery and that slavery was a national institution for the entire United States.


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