Jan. 15, 2008 * Updated 1/17
By Ken Krayeske • 10:45 PM EST
Today is MLK's Birthday.
Fresh from an email I sent to a professor at Quinnipiac Law today, the latest outrage ( (Prof's response posted at end. Also QUSL Black Law Student Association has taken an interest in this):
Dean King -
I am doing some reading for class tomorrow, examining problems, and on page 62, problem d presents a case about a lost watch. The answer is presented in the form of Barwick v Barwick 33 NC 80 (1850). Unfortunately, the answer does not discuss a lost watch, but it deals with slaves as property. * (see below for some of the offending language.)
Understanding that in 1850 in North Carolina, the holding of slaves was legal, and that contemporaneously, this was good law, yet I am hoping you can help me understand how despite the outlawing of slavery, this case is good law. According to Westlaw, there are no red flags on this case, therefore, it has not been overruled.
Whether or not it is good law, how it is in good taste for a textbook to be using it as an example? I understand that it quotes Delimere v Armory - the case of the chimney sweep who finds the lost jewel - but I can't comprehend how this case about people as chattel remains a precedent. Perhaps positively, this presents an opportunity for a diversion to discuss the ills of slavery and its long-term impacts on modern property law, and in a roundabout way, almost makes sense as an argument for reparations. But I digress.
I know that you did not write the textbook, and probably have your own minor qualms with parts of it here and there, but use it because it is among the best available.
But that is what concerns me - how is it possible in 2008, on Martin Luther King Jr.'s birthday no less, that we are confronting issues like this? I can't imagine how I might feel if I were African-American and I read this (nausea? anger?), nor can I imagine how I would feel if I were you and I had to teach this to African-American students.
I doubt that my disdain for the inclusion of a pro-slavery ruling in a 21st-century law textbook is misplaced. I hope that you can help me determine a way to remedy this gross insensitivity, which essentially compares finder's rights on an inanimate object with that of finder's rights on actual flesh and blood.
Thank you in advance for your time and consideration, and I look forward to your response.
*The offending language from the North Carolina case, written by PEARSON, J.:
Benjamin Sutton, by his will, gave a number of slaves to his wife, Sarah Sutton, for her life: and at her death to be divided among his four daughters, one of whom was Winifred, the wife of Joshua Barwick, one of the defendants. Joshua Barwick and his wife sold their interest in said slaves to the plaintiff, who took four of them into his possession. Afterwards, the said Joshua sold the two slaves sued for to Wood, who, with the assistance of the other defendant, Brown, took them from the possession of the plaintiff, and sent them out of the State; whereupon this action of trover was brought.
The case made up by his Honor, states that it was not proven that Sarah Sutton was dead. The plaintiff insisted that he was entitled to recover on two grounds; 1st. because he had the title; and 2nd., because he had the possession, and could recover against wrong doers.
His Honor charged, that the plaintiff could not recover on the first ground, because it was not proved that Sarah Sutton was dead; but he charged, on the second ground, that, if the plaintiff was in possession of the slaves, and the defendants took them, and sent them out of the country, he was entitled to recover their value, with interest from the time of the conversion: as the defendants were wrong doers and had shown no title. There was a verdict for the plaintiff, and, from the judgment thereon, the defendants appealed.
ACTUAL CASE OUTCOME:
In this case, for instance, as the facts appeared on the trial, the plaintiff was in the wrongful possession, which was disturbed by the defendant, and for that injury he had a right to recover in trespass. But Sarah Sutton was known as the true owner, and had a right to demand her property of the defendants, or else to recover its value, and they could not protect themselves by showing that they had paid the full value to the plaintiff, under the coercion of a judgment and execution. This result would seem, by the reductio ad absurdum, to show that the inference from the case of Delimere v. Armory, that trover can be maintained against a wrong doer by one not having a naked possession, when the true owner is known, is contrary to good sense. That which is not good sense, is not good law.
The judgment must be reversed and there must be a venire de novo (a writ for summoning a jury panel anew).
Dean King's Response:
Hello Mr. Krayeske--
The general goal of casebook authors is to get students to think. The authors seemed to have achieved their goal in this instance. You have obviously given this matter considerable thought.
If you disagree with the authors' methods of getting you to think, I encourage you to write to them to express your views.
David S. King
Quinnipiac University School of Law