In an old Tennessee case, Ford v. Ford, 26 Tenn. 92 (1846), a farmer had bequeathed to his slaves their freedom. The farmer named his two sons as executors. The farmer’s children wanted none of this and even tried to destroy the will. That failing, the executors refused to probate the will. The slaves themselves presented the will to the local court (Washington County, around Johnson City) for probate. In fact, the slaves couldn’t present the will themselves but did it through a “next friend” (a legal way for someone to bring an action for someone who cannot legally do so, like a child or an incapacitated person). The children contested the probate on many grounds including forgery, incapacity on the part of the testator (the maker of the will), and that the slaves as non-citizens had no rights to bring the court action. Nonetheless, a jury found for the slaves that the will was valid. On appeal, the Tennessee Supreme Court found that the slaves had the right to propound the will as “the laws under which he is held as a slave have not and cannot extinguish his high-born nature nor deprive him of many rights which are inherent in man. Thus while he is a slave, he can make a contract for his freedom, which our laws recognize, and he can take a bequest of his freedom, and by the same will he can take personal or real estate.”

            This was kind of amazing at the time, in most situations the slaves would have been screwed – think “12 Years a Slave" or the Scotsboro Boys. After all, the slaves had to find a “next friend” willing to confront local biases, post a bond, and find people in authority willing to listen. All of this in the deep south.

Twelve years later, the Supreme Court of the United States held very differently. In Dred Scott v. Sandford, 60 U.S. 393 (1857), Mr. Scott, a slave, went to court and made a compelling case for his freedom based on his “owner” having lived with him in free states. He was denied in state court based on a technicality and then again based on a politically motivated decision. He appealed his case to the United States Supreme Court. In a 7-2 decision, the Court held that Mr. Scott could not sue in federal court as a negro did not have the “rights, and privileges, and immunities” granted to citizens” including the right to bring suit.

In a recent case, Lucas v. Jerusalem Cafe, LLC, (8th Cir. 2013), a restaurant owner was sued by some of its employees, unauthorized aliens, for their pay. The restaurant argued that that the plaintiffs lacked standing as they were illegally in the country and unauthorized to work. Considering this history, should people in the US illegally be limited in their ability to bring lawsuits in court?