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Seems Like Yesterday

There are definite trends in cases reviewed by the highest courts. Fifty years ago, there were a ton of obscenity cases. One hundred years ago, prohibition cases dominated the docket. Turns out that one hundred and fifty years ago, there was a lot of discussion about the meaning of words, statutory interpretation, and rules of law in court.

Some of these older decisions, thankfully, have fallen by the wayside. For example, in Commonwealth v. Kendall, 113 Mass. 210 (1873), the court averred that it was perfectly fine when charged with rape or sexual assault to imply that the victim consented to the sex by illustrating that she was not “virtuous”. The court essentially said that if a victim of a sex assault had engaged in sexual activity, this could be presented to the jury so they could judge her rather than condemn the rapist for raping her. “In cases of rape, and of assaults with intent to commit rape, evidence of the bad character of the prosecutrix for chastity is admissible.” This ruling was the law of the Commonwealth until overturned by statute, commonly referred to as the Rape Shield Law, in 1977. But others have had staying power. Commonwealth v. Legassy, 113 Mass. 10 (1873) is a toast to the nanny-state. The defendant, a parent of a minor child, gave consent for his son to work in a manufacturing plant even though state law prohibited child labor. The statute under which he was convicted no longer exists, so the charge is unclear. But, because his child was not in school and he had consented to his work at a manufacturing facility in violation of the law, he was convicted of something (related to bad parenting?) and that conviction was upheld. Basically, just like the present times, if the state makes rules protecting the vulnerable, you best abide by them.

In Commonwealth v. Stratton, 114 Mass. 303 (1873), the defendant did not see the harm in slipping some “Spanish Fly” into some figs he and a friend brought to two women. Not suspecting foul play, they ate the figs and nearly died. Turns out, this cantharides "love powder" is not an aphrodisiac afterall. It is poison. The defendant had no idea and did not mean to harm these young women (he only wanted a magic potion to make them like him). Even though he thought this was all in fun, he was convicted of assault and battery. Incredibly, the idea that administering drugs to unsuspecting women is just a harmless prank still goes on today. The state legislature is pondering a bill regarding “date rape” drugs this session. Since the beginning of time, if she is not that into you, the drugs are not going to help and they may land you in jail.

A Supreme Court case gave the discretion to state governors as to whether to honor an out of state extradition warrant in 1861. In 1873, Massachusetts had to determine whether the Governor of Massachusetts could lawfully deliver up a fugitive from justice in Vermont (he could) even if the offense seemed kind of minor (selling and furnishing intoxicating liquors). In Re Brown, 112 Mass. 409 (1873). By 1987, this discretion concept fell out of favor and the Supreme Court of the United States ruled that delivering a fugitive would be mandatory and even enforceable by the federal government. Moral is - you can run, but you cannot hide. Fugitive warrants will be honored from state to state.

Speaking of honoring state laws, there was a case that made it to the Supreme Court of the United States in 1873 based on diversity of citizenship from folks in Texas with folks from Alabama. It dealt with a will from 1858, including the value of enslaved people and the validity of payment, or rather non-payment, in Confederate bonds to beneficiaries of the estate. Although he was not the only legatee, the executor of the estate invested the money – years after the death of the estate holder - in the losing side of the Civil War. Thus, when the war ended, the investment had no value. The other legatees wanted the money they were owed from the estate in actual United States currency. The case contains this lovely line, “The bonds of the Confederate States were issued for the avowed purpose of raising funds to prosecute the war then waged by them against the government of the United States. The investment was, therefore, a direct contribution to the resources of the Confederate government; it was an act giving aid and comfort to the enemies of the United States; and the invalidity of any transaction of that kind, from whatever source originating, ought not to be a debatable matter in the courts of the United States.” Horn v. Lockhart, 84 U.S. 570, 580, 21 L. Ed. 657 (1873). In other words, no matter how honorable you believe your insurrection to be, giving aid or comfort to the enemies of the United States will end badly for you. And we are not going to debate or discuss why. See also, The Confiscation Cases, 87 U.S. 92 (1873) (the law Congress devised to punish traitors and rebels by taking their property is lawful and Constitutional. For the record, this may still be good law so the folks who think jail time is the only potential penalty for that whole January 6, 2021 nonsense might be in for a surprise. Just saying.)

It's just interesting that these social issues are hashed and rehashed generation to generation and they do not ever seem to resolve. Parental rights in the face of state power is as much an issue today as it was in 1873. Same with pathetic ideas about love potions. Whether or not states will respect laws from other states is a hot topic. And, certainly the penalty for insurrection – whether in liberty or funds – has resurrected itself as an issue today.

If we could figure out how to legislate, and even what to legislate - if we could figure out what make up our core values and then live them without bickering so much on the edges - if we could truly form a more perfect union as time goes on, maybe we could start on the path to progress instead of stagnation or even regression. States are their own little laboratories of democracy (and also of autocracy) busy making laws about who can wear what clothing which, apparently, is the scourge of the nation. But to advance as a country on values and meaningful governance, we would need federal legislation. Right now, that is a bit of a problem. So, it looks like we will be lathering, rinsing, and repeating for some time to come.

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