court of appeals

4% BROADWAY, ALBANY.

YDCCCLX.

VI.

BANKS AND BROTHERS, LAW BOOKSELLERS,144 NASSAU STREET, NEW YORK,

Counsellor at Law.

VOL.

jBY E. PESHINE SMITE,

ARWJED AND DETERMINED

IN THE

COURT OF APPEALS

STATE OF NEW YORK.

l

REPORTS OF CASES

j

1841),render free every person formerly held as a slave who is introduced intothis State by the voluntary act or consent of his master.

They have this operation upon slaves not fugitives from service but broughtinto this State in the course of transit from one slave State to another,without any intention on the part of the master of remaining any longerthan is necessary to find the opportunity for pursuing his journey.

?n~ ch. 247 of us amended 1, part tit. 7, ch. 20,

w. PEOPL E.

The Revised Statutes (

.

Judgment affirmed.

LEMMON

Oyer andTerminer granting a new trial affirmed.

’I think the order of the general term granting the writ of

prohibition should be reversed, and the order of the

offence, even if he cannot suc-ceed in wholly purging himself of crime.

“- that he should have one more opportunityto show the extenuations of his

LL the centralflowery kingdom

“ waif, ” as he has beenappropriately called, cast upon our shores from

defence, and yetstanding thus unaided and unshielded before them, there wasevident hesitation with the jury in convicting him of the crimeof murder. There is every reason to believe that on anothertrial the crime laid to his charge will, if not excused, be greatlymitigated. I think it is eminently due to this comparativestranger to us and our institutions-this

was tried that the trial resulted in a conviction. Anumber of unfortunate circumstances concurred in presentinghim before the jury substantially without

v. The People.

mockery to tell a man who has been unjustly condemned thathis redress is a pardon. He feels, and ever will feel, that he hasreceived an incurable wound from that sword which he, in com-mon with his fellow citizens, had put into the hands of themagistracy for their protection. ”

The case made in the court below was one appealing verystrongly to the reason of that tribunal to grant a new trial.It was certainly from no fault of the court before which thedefendant

562 CASES IN THE COURT OF APPEALS.

Lemmon

auyconflict between it and the laws of this State.

not raise

J.)that Congress has not undertaken to regulate commerce between the

‘States by land or otherwise than when carried on wholly by coastingvessels, and that the present state of federal legislation does

DENIO, haI

assumption to regulate their transportation, it is sufficient (per upon commercq and su&& of has po wer to regard persons as the

BACON and WELLES , Js.), that the action of the several States toexclude slaves from their limits cannot be controlled by Congress underthis or any other power conferred by the Constitution. But if Congress

DAVIES,

stat& of this State is not void as infringing upon the power of Con-gress to regulate commerce between the States. It seems (per WRIGHT,

The

iti effect is simply to relieve him from any disabilities of alienage whichwould otherwise attach, and to prevent any legislation discriminatingagamst him to the advantage of natural citizens, but it does not enablehim to carry into another State the legal institutions, or any of them, ofthe State of which he was primarily a citizen.

th?t quality, and subjects him to the same disabilities.

firtiori would a slave become free if voluntarily brought by his masterinto a free State.

The clause in respect to fugitives does not extend beyond the case of theactual escape of one owing service in one State to another.

The provision of the Federal Constitution, that the citizens of each Stateshall be entitled to all privileges and immunities of citizens in the severalStates, secures to a citizen of Virginia, irrespective of his presence or ab-sence, the same rights, and no others, pertaining to a citizen of this Statein

d

its di-rections unless they are in conflict with the Constitution of the UnitedStates.

The Federal Constitution recognizes the plenary and exclusive power of theStates in this particular, by the express limitation thereof in the case offiigitives from service.

The adoption of the provision on that subject is evidence of the understand-ing of the parties to the compact that in its absence even a fugitivewould be emancipated upon reaching a free State; not merely by force oflaws prohibiting slavery, but for want of positive law subjecting him toa condition abhorred by the common law and the law of nations.

status only from the presumed consent of the political government of theState where they are invoked. When the legislative power has declaredits will upon the subject, the judicial tribunals are bound to obey

c

Every State, except as it may have limited its power by express compact, hasthe exclusive right to determine and regulate the status or social and civilcondition of all persons who may at any time be within its jurisdiction.

The law of nations or principles of comity are applied in determining such

puere.

o. The People.

Whether the statute in its terms or construction applies to the case ofslaves on board of a coasting vessel which has been driven within thenavigable waters of this State by stress of weather or other marine casu-alty,

Lemmon

5631860.ALBANY, MARCH,

* “that the said Juliet never had any in-tention of bringing the said slaves or persons into the State ofNew York to remain therein, and that she did not bring theminto said State in any manner nor for any purpose whatever,

* * * Pi-.‘? COT-m&r the writ of habeas

transdu or transit from the Stateof Virginia aforesaid to the State of Texas, the ultimate placeof destination and another slaveholding State of the UnitedStates of America, and that she was so on her way in transituor transit when the aforesaid eight persons or slaves were takenfrom her custody or possession

Ga

: that serviceand labor as slaves was due by them under the Constitution andlaws of Virginia: ((that the said Juliet, with her said slaves,persons or property, is now

pretence that they were slaves.The writ accordingly issued, and on the same day one of the

constables of the city of New York brought up the eight col-ored persons, who appeared to be known only by their Christiannames as Emeline, Robert, Lewis, Amanda, Nancy, Ann,Lewis and Edward. Lemmon made a return to the writ underoath, in which he averred that the eight persons named werethe slaves and property of Juliet Lemmon his wife, who hadbeen the owner of such persons as slaves for several years, shebeing a resident and citizen of the State of Virginia

3’Carlisle street,New York, requiring them to bring before said justice thebodies of eight colored persons, one man, two women andfive children, who on the day preceding were confined and re-strained of their liberty on board the steamer City of Rich-mond, in the harbor of New York, and were taken therefromon the night of that day to No. 3 Carlisle street, and there de-tained under the

v. The People.

Accordingly, slaves brought from Virginia to New York by sea, and therelanded with the intention of embarking upon a new voyage to Texas, arethereby made free.

APPEAL from the Supreme Court. On the 6th day of No-vember, 1852, Louis Napoleon, a colored citizen of this State,made application upon a sufficient petition and affidavit toMr. Justice PAINE of the Superior Court of the city of NewYork, for a writ of habeas corpus to be directed to one Jona-than Lemmon and the keeper of house No.

56 4 CASES IN THE COURT OF APPEALS.

Lemmon

upoh her sove-reignty by the Constitution of the United States, forbid the status

Conor, for the appellant.

I. Except so far as the State of New York could rightfully,and without transcending restraints imposed

Char1e.s 0 ’

timed in December, 1857. Lemmon appealed to this court.was

WV he discharged the coloredVirginians.

Lemmon sued out a writ of certiorari from the SupremeCourt, where the proceedings were reviewed at general termin the first district, and the order of Mr. Justice PAINE

: that the said Juliet with her said slaves was com-pelled by necessity or accident to take passage in the steamshipCity of Richmond, before named, from the aforesaid port ofNorfolk and State of Virginia for the State of Texas aforesaid,the ultimate place of destination.” The return also denied anyintention, on the part of Mrs. Lemmon or her husband, of sell-ing the negroes.

To this return the relator orally interposed a general demur-rer. Mr. Justice PAINE held the case under advisement untilthe 13th of November, 1852,

Li thatthe said slaves, sailing from the port of Norfolk in thesaid State of Virginia, on board the steamship City of Rich-mond, never touched, landed nor came into the harbor or Stateof New York except for the mere purpose of passage and tran-sit from the State of Virginia, aforesaid, to the State of Texas,-aforesaid, and for no other purpose, intention, object or designwhatever

** -X ” :

lzabeas corpus, and she thereby de-prived of the possession of them, passing with them throughthe said harbor of New York, where she was compelled bynecessity to touch or land, without, on her part, remaining orintending to remain longer than necessary

Virginia afore-said through the port or harbor of New York, on board ofsteamship for their place of destination, the State of Texasaforesaid: that the said Juliet, as such owner of the aforesaidslaves or persons, was at the time they were taken from her asaforesaid! on the writ of

transitu or transit from the State of

v. The People.

except in

ALBANY, MARCH, 1860. 56 5

Lemmon

; and in a so-ciety composed of such persons, the slavery of its own mem-bers, endowed by nature with mental and physical equality,must ever be repugnant to an enlightened sense of justice, Of

.to or regulated by the laws or usages of that kingdom, Theywere a homogeneous race of the free white men

; 15 id., 507.) (2.) Negro slavery never was apart of the municipal law of England, and consequently it wasnot imported thence by the first colonists. Nor did they adoptany system of villenage or other permanent domestic slaveryof any kind which had ever existed in England or been known

Per.MCLE,W,J., 16 Pet., 660

stale Trials, 60; 5th, 20 A+., point Htrryave’s ;Sandford, 19 How., 407, 408 ; Scott v.

Awes,18 Pick., 208, 209

; id., 61; Commonwealth v. Corm., 42 Bulloch, 12 ;

Jackson v. W&d., 328 ; Jack v. Martin, 12 MarclL 8, 1773 Y;, N

Schaick’s Laws, 69; 29 October, 1733, id., 157; Colonial SlaveAct of Tan

certainIy in New York, itwas expressly recognized by statute prior to the time when theStates themselves asserted their independence. (28 October, 1806,

and , consequently, it is only by force of some positive enact-ment of the legislative authority that one coming into our ter-ritory with slaves in his lawful possession could suffer any lossor diminution of his title to them as his property. (1.) Inevery known judgment, argument or opinion of court, judgeor counsel relating to the subject, it is admitted in some form,that at an early period negro slavery existed under the muni-cipal law in each one of the thirteen original States whichformed this Republic, by declaring its independence in 1776,and adopting its Constitution in 1789. By what means it hadits first reception and establishment in any of them as an insti-tution sanctioned by law, may not be historically traceable;but in most; if not all of them, and

;had

any constitutional power to annul, repeal or set aside this law

-of slavery to exist within her borders in the person of an Afri-can negro, and except so far as she has, in fact, expressly orimpliedly forbidden it by actual legislation, an African negromay be lawfully held in that condition in this State. 1. Theancient general or common law of this State authorized theholding of negroes as slaves therein. The judiciary never

v. The People.


Lemmon

@%Aaffected.

LL that as soon as a negro comesinto England he became free. ” It was only negro liberty thatthe know-nothingism of English and French law established.English and French air had not its true enfranchising puritytill drawn through the nostrils of a negro. White slaves hadlong respired it without their status being at all

((be a villein in England, ” but ((took no notice of a negro. ” That a white man mightyet it

;

Corn. v. Aves, 18 Pick., 214.) (b.) Lord HOLT and Mr. JusticePOWELL were Mr. Hargrave ’s high authority for the proposi-tion that whilst the common law of England recognized whiteEnglish slaves or villeins and the right of property in them

;a new institution which it

required the legislative power to introduce. (20 State Trials, 55 ; that negro slavery was

e only argument against negro slaveryfound in the English cases at all suitable for a judicial forum‘rests on the historical fact that it was unknown to the English law.Mr. Hargrave, in Somerset ’s case, showed that white Englishmenwere alone subject to the municipal slave laws of that countryat any time

Curran ; Judge M CLEA N’S criticism inBred Scott, 19 How., 535; Lord STOWELL ’S criticism, 2 Hagg.Ad., 109.) (a.) T h

Rowan’s Trial, Elop.,

1793, no&; Irish Elop., 1778, id., 6, ; Scotch

TriaZs,1 Ld. MANSFIELD

1771,20 State BZ. Corn., 127, 124; Id., Id.., 1765, 1 NORTHING-

TON; A.D., 1762, 2 Eden, 117, Ld. Elop.,

1738,20 State Trials,11, note; English

D., Elop., A.

v: Farmer, 9 Cobb ’sGeo. R., 562, 578.) (3.) A s neither the political bondage northe domestic slavery which the European by fraud and violenceimposed upon his white brethren ever had a legal foothold inthe territory now occupied by these States, the inflated speechesof French and British judges and orators touching the purityof the air and soil of their respective countries, whatever otherpurpose they may serve, are altogether irrelevant to the inquirywhat was or is the law of any State in this Union on the sub-ject of negro slavery. (French

; Neal § 17 I?, art. 1, ; Const. N. Kent

Corn., 373 Pacard, 2 Pet., 444; 1 V. Ness ; Van

V. Don-aldson, 8 Pet., 659

Wheaton ; a,nd Student Dialogue, 2 Ch., 18, 19

4their condition and left it behind them when they emigrated.(Doctor

‘,fCourse, the colonists abhorred it, saw that it was not suited to

:‘I.ic’. The People.:j

Lemmon

;‘,i:ALBANY, MARCH, 1860. 56 7

.‘rendered inalienable. The judges, without a shadow of con-stitutional right, contrived the absurd and irrational fiction of

cto make entailed lands absolutely inalienable. As far as theplain and direct expression of its sovereign will by the su-preme law-making power could have that effect, they were

de don&

; but it has often beendeparted from in practice. (d.) In some instances the depar-ture has been very striking. The legislative authority ofGreat Britain, in 1285, sought by the celebrated statute

K&t, 472.) This is sound doctrine ;

1 Wits., 348 Bkantern, 2 (Col2in.s v.

; all our law begun by consent ofthe Legislature; and whether it is now law by usage or bywriting it is the same thing. ”

; the common law is nothing else butstatutes worn out by time

law& thewill of the Legislature

flowed

from the same fountain-the Legislature. Statute “ Statute law and common law originally : WILMOT says

ncere. Again, the wise and learned Sir JONATHAN EARDLEYf

ju.spower---+ dare et non

J: R., 63.) (4.) The judici-ary never had power to annul, repeal or set aside the slave lawof this State which we have shown existed with the sanction ofthe Legislature prior to the Revolution. (a.) Judicial tribunalsin this country are a part of the government, but by the geniusof our institutions, and the very words of our fundamentalcharters, they are restrained from any exercise of the law-mak-ing power. That governmental function is assigned to a sepa-rate department. (b.) By this strict separation of govern-mental powers, we have given form and permanency to amaxim of politico-legal science always acknowledged by thesages of the English law in theory, though often violated inpractice. (c.) For proofs of this acknowledgment we refer tothe habitual definition of judicial

beenjn raptures with him ever since. Neverthe-less it was a bald inconsequential truism. It might be equallywell said of any other new thing not recognized in any knownexisting law. (Per ASHHURST , J., 3

negro-philism has

MAXSFIELD said in Somerset ’s case, “The state of slavery isof such a nature that it is incapable of being introduced on anyreason, moral or political, but only by positive law, ” and

Triab, 55, note.) (c.) Lordv. Brown, 2 Salk., 666; 20 State

o. The People.Lemmon

.56 8 CASES IN THE COURT OF APPEALS.

self-gratulation may be found in the otherwise admirably written

S MITH .- V O L . VI . 72

tionceived fraudulent devices and evasions, but by fair argu-ment and open remonstrance addressed to those whom theConstitution has invested with the sole power of orderly andlegitimate correction. An instance of this ill-considered

should not be combated by error, by crime, or by ingeniously

’ that, by usurping powers not granted, the high priest of justiceshould defile himself and the temple in which he officiates bythe sin of willfully violating the fundamental law. Error

mischiefs should existfor a time by the ill-advised sanction of the Legislature thankThey erred. Far better that supposed

the necessity of keeping separate thegreat departments of the government, whose professional pridewas greater than their knowledge of constitutional jurispru-dence, have frequently boasted of a tendency amongst theEnglish juris-consults and judges to defeat what to them seemedimpolitic and unjust resolutions of the legislative department.

Eq., 444.) (e.) T hose lawyers who have failed to per-ceive, as Lord ELDON did, .L. and

donis. (38 Eng.

1819), says: “The power ofjudges in this respect may be doubted. Upon that subject, asit applies to English law, I have formed an opinion that thejudges of this age in England would not have been permittedto get rid of the statute of English entails as judges of thatage did soon after the passing of the statute de

.D. R~P.~ 1st series, 435, A. P Blig7?s

T/ViZb, 452.) The English legislature was governedby what we, with our present lights, may deem a perniciouspolicy, tending to restrain commerce in land, to tie it up infew hands, and to draw into operation numerous social evils.The unfettering of estates by the English judges, through thedevices to which they resorted, had its origin in a wise regardfor the interests of the people; but in them, it was mere trickand rank usurpation. So Lord ELDON, from his place as Presi-dent of the House of Lords, at a period when constitutionallaw was better understood in England, in pronouncing thejudgment upon the case of the Queensberry leases (1

; TTILLES Bl. Corn., 116, Per M ANSFIELD ; 1 Burr., 115, Ld. Ch. J.

v. The People.

a common recovery, and thereby virtually repealed the statute.(2

Lemmon

ALBANY, MARCH, 1860.

S, 387, note.) 3. In the forensic sense of the word law, thereis no such thing as a law of nature bearing upon the lawful-ness of slavery, or indeed upon any other question in jurispru-dence. The law of nature is in every juridical sense, a merefigure of speech. In a state of nature, if the existence ofhuman beings in such a state may be supposed, there is nolaw. The prudential resolves of an individual for his owngovernment, do not come under the denomination of law.

N:Eli., & ; per MAULE , J., 13 Ad. Doctqr and Stu-

dent Dialogue, 1 ch., 18, 19 ;

decl&nation bywhich he installed himself as the champion of negro emanci-pation. 2. The judicial department has no right to declarenegro slavery to be contrary to the law of nature, or immoral, orunjust, or to take any measures or introduce any policy for itssuppression founded on any such ideas. Courts are only au-thorized to administer the municipal law. Judges have nocommission to promulgate or enforce their notions of generaljustice, natural right or morality, but only that which is theknown law of the land. (1 Kent’s Corn., 448

; it was overruled by the dictumof a judge much more renowned for his tendencies to usurpthe power of making law than for any inclination to diminishprerogative or to defend the liberty of his white fellow sub-jects. The pride of office, the pride of learning and an osten-tatious vanity, rather than any tenderness for the rights andenjoyments of the lowly, dictated the loose

bondman. The argument was opposed bythis appeal to judicial pride

whichthey gradually undermined that part of the ancient law ofEngland. (20 Howell’s State Trials, 67; Id., 27.) Negro slaveryin the West Indies was sanctioned by numerous English stat-utes. This afforded an argument certainly of much force infavor of permitting an English subject, who lawfully heldslaves in that part of the British dominions, temporarily to visitEngland with his

MAKSFIELI). The last sentence of that argu-ment, vaguely to be sure, and, perhaps, somewhat covertly,commends the astuteness of the English judges in circumvent-ing the lord under the system of English villenage, by

o. The People.

argument of Mr. HARGRAVE , as counsel for the negro Somer-set before Lord

,


Lemmon

2)’and elsewhere, that slavery is contrary to the law of nature,

$ tit. 2, IIagg. Adm., 104, 122.)

(4.) When Justinian says in his Institutes (book 1, Slaue Grace, 2 ; The

; 18Pick., 211

&decided that holding negroes in bondage as slaves is not con-trary to the law of nations. (The Antelope, 10 Wheat., 66

this country havingjurisdiction over questions of public or international law, have

S;rlk., 666; Cases cited in note,20 State Trials, 51; The Slave Grace, 2 Hagg. Adm., 104.)(3.) The highest courts of England and of

;18 Pick., 215; Smith v. Brown,

Aid., 353 & Willes, 3 B. (Madrazo v. cburts could act upon

prohibiting negro slavery.

that therewas-no paramount law of nature which

Apl. 1858, 235.) (2.) The com-mon law judges of England, whilst they broke the fetters ofany negro slave who came into that country, held themselvesbound to enforce contracts for the purchase and sale of suchslaves, and to give redress for damages done to the right ofproperty in them. This involves the proposition

; Brougham Ed. Rev., Q 9 (Act. Bouvier ’s Inst.,

at all times acknowledged negro slavery tobe a valid basis of legal rights, it follows either that such sla-very, in the practical judgment of the common law, is notcontrary to the law of nature, or if it be, that such law of na-ture is of no force in any English court.

40,41,42, and notes.) Yet, as the judiciaryof England have

;and that no human laws are of any validity if contrary to it. (1Wendell ’s Blackstone,

072 Public Law, 47, and onward.) (1.) Ifthere was any such thing as a law of nature, in the forensicsense of the word law, it must be of absolute and paramountobligation in all climes, ages, courts and places. Inborn withthe moral constitution of man, it must control him everywhere,and overrule as vicious, corrupt and void every opposing de-cree or resolution of courts or legislatures. And accordinglyBLACK -STONE , repeating the idle speech of others upon the sub-ject, tells us that the law of nature is binding all over the globe

Bowyer ; Cooper ’s Justinian,

notes, 405; ; Wheaton ’s Elements of Int. Law, 2, 19

K&t,2

1 Bl. Corn., 43; ; 1 § 6, 7 (Ratherforth ’s Inst., B. 1, ch. 1,

v. The People.

Law, in the forensic sense, is wholly of social origin. It is arestraint imposed by society upon itself and its members.

ALBANY, MARCH, 1860. 571Lemmon

natule, neither is

;15 a science. Equally groundless is the distinction taken byJudge PAINE between slave property and other movablea.(a.) Property in movables does not exist by

itabeing founded on the ownership of a negro slave. (7.) Theproposition that freedom is the general rule and slavery thelocal exception, has no foundation in any just view of the law

dhterminedby the judicial tribunals of any country that any right, other-wise perfect, loses its claim to protection by the mere fact of

;Senator BENJAMIN , 1858.) (b.) It has never been

S, 724 ; Per BARTLEY , Ch. J., 6 Ohio A? Justinian, notes, 410,

Inst., book 1, tit. 3

; and no lawgiver of paramountauthority has ever condemned it. (Cooper’s

; for in some of its formsslavery has existed in all ages

state on earth can maintain thisabsolute outlawry of negro slavery

; 2 Wood ’s CivilLaw, 2.) (a.) No civilized

; 3 id., 2 ; 1 Kent, 2, 3 SHAW,

Ch. J., 18 Pick., 215 ; Per

and statute laws in all of them recognized andenforced it. (The Slave Grace, 2 Hagg. Adm., 104

;

$$ 6, 7.) (6.) The law of naturespoken of by law writers, if the phrase has any practical im-port, means that morality which its notions of policy leadseach nation to recognize as of universal obligation, which ittherefore observes itself and, so far as it may, enforces uponothers. It cannot be pretended that there ever was in England,or that there now is in any State of this Union, a law, by anyname, thus outlawing negro slavery. The common law of allthese countries has always regarded it as the basis of indi-vidual rights

Ruther-forth’s Inst., book 1, ch. 3,

Sandj, 711; arose from compact. It has no origin in any law of

nature as supposed in the court below. (5

as such in judicial tri-bunals, exist only by virtue of the law of that State or countryin which they are claimed or asserted. The whole idea of pro-perty

PubZic Law, 48.) (5.) Al lperfect rights, cognizable or enforceable

; Bowyer on 9 97 Domat., 9 1) confirm it.

(Cushing’s 9 2, tit. 8,

; his full sanc-tions of slavery in book 1 (tit. 3,

natura,li proves this

,introduced by human law, which is true of most if not allother rights and obligations. His definition of the law of na-ture (book 1, tit. 2) de jure

v. The People,

he means no more than that it does not exist by nature but is

Lemmon


.

tained a civilized social organization, and that he never can issus-&o&i’s Latin Lexicon Aethiops.) (c.) The negro never has

(Fat-

thelatter phenomenon cannot happen within thousands of years.For all the ends of jurisprudence this is a perpetuity.

582)) or the possibility that time haschanged and may again change the Ethiopian ’s physical andmoral nature. (b.) It, is only necessary to view the negro ashe is, and to credit the palpable and undeniable truth, that

Gee.,

does not require for its support an assertion or de-nial of the unity of the human race, the application of Noah ’smalediction (9

is no violation of the principlesof enlightened justice nor any departure from the dictates ofpure benevolence in holding negroes in a state of slavery.(1.) Men, whether black or white, cannot exist with ordinarycomfort and in reasonable safety otherwise than in the socialstate. (2.) N g e roes, alone and unaided by the guardianship ofanother race, cannot sustain a civilized social state. (a.) Thisproposition

State or country could it be absolutely denied all legalprotection. 4. In fact there

cognfze such foreign law except so far as it may be speciallyproscribed. This usage amounts to an agreement between thenations, and hence the idea of property by the so-called law ofnations. (e.) Hence it, will be seen that property in Africannegroes is not an exception to any general rule. Upon rationalprinciples, it is no more local or peculiar than other property.And there is so much of universality about it that in no civi-lized

re-It

has become a universal practice among civilized nations to (d) Earle, 13 Pet., 589.)V.

takenotice of and recognize, puoad such property and its owner, theforeign law. (Bank of Augusta

itdepends on the will of such latter State how far it will

countrythan that under whose laws the title to them was acquired,

presence of their owner, come within any other (c.) When the movables, with or with-

out the

to movables must have an origin in some law. Thatorigin ‘is always in and by the municipal law of the placewhere it is acquired, and such law never has per se any extra-territorial operation.

title Every

v. The People.

there any common law of nations touching its acquisition ortransfer. (Bowyer on Universal Public Law, 50.) (b.)

Lemmon

serviceof his minor child as a due return for guardianship andnurture. (c.) Who shall deny the claim of the intellectualwhite race to its compensation for the mental toil of governingand guiding the negro laborer? The learned and skillful

ihe parent a right to the profitand pleasure which may be derived by him from the

kankind concedes to DiaZogue, 1, ch. 6.) (b.) The universal

voice of

; it is not due to sturdy indolence.(Doctor and Student

; in theterritories adapted to his labors, and in which alone his racecan be perpetuated, he will not toil save on compulsion, andthe white man cannot; but each can perform his appointedtask-the negro can labor , the white man can govern.(3.) Morality, or those dictates of enlightened reason whichhave sometimes been called the law of nature, do not obligeany man to serve another without an equivalent reward for theservice rendered. (a.) The obligations of charity form no ex-ception to this rule. Charity enjoins gratuitous service to tbosewho are unable to repay

($) Heis a child of the sun. In cold climates he perishes pupilage under the government of some other race.

NegToes; Biog. Univ. Supt., vol. 56, 83, Gregoire.) (e.) It fol-lows that in order to obtain the measure of reasonable personalenjoyment, and of usefulness to himself and others for whichhe is adapted by nature, the negro must remain in a state of

; Gregoire ’s Literature of the(Malte Brun ’s Geo., book 59, 8

; but it is universalamongst negroes. Not one single negro has ever risen aboveit.

(McCulloch ’sGeo., Hayti, 693, 694; De Bow ’s Rev., vol. 24, 203.) (d.) That,alone and unaided, he never can sustain a civilized socialorganization is proven to all reasonable minds by the fact thatone single member of his race has never attained proficiency inany art or science requiring the employment of high intellec-tual capacity. A mediocrity below the standard of qualifica-tion for the important duties of government, for guiding theaffairs of society, or for progress in the abstract sciences, maybe common in individuals of other races

o. The People.

sufficiently manifest from history. It is proven by the rapidthough gradual retrogression of Hayti toward the profoundestdepths of destitution, ignorance and barbarism.

hrnrno,


unfortu-Li

114)) andCh. J. TANEY concedes to them that the negro race, merelybecause denied political rights, is to be regarded as

n&ure (6 Pet. Cond., 36; 10 Wheat.,

(c,) Cer-tain assumptions of anti-slavery agitators have been too muchindulged by the moderate, peaceful, and conservative. Ch. J.MARSHALL let pass uncondemned their irrelevant trivialityabout the law of

Cana of Galilee(John, ch. ii), enjoins, as a duty, total abstinence from wine, iswell kept up in the assumption of a political and moral excel-lence beyond the mental reach of our sires, and the consequentdemand for an immediate abolition of negro slavery.

existing.state of knowledge could be supposed to haveexisted among the guests at the marriage in

(6.) The tone of mind, which, arrogatingto itself superior purity of life and a higher moral tone than inthe then

called evilsin their own nature.

; but as they are also the ne-cessary means of his improvement, they cannot be

; 9 Georgia, 582.)(a.) The cruelties of vicious slave owners and the horrors ofthe slave trade are topics quite irrelevant. It is universal ex-perience that wealth and power afford occasion for the develop-ment of man ’s evil propensities

; 1 Bl. Corn., 40 Q 3 tit. 1, (I;zst., book 1,

cuique tribuere, ” are all theprecepts of the moral law. The honorable slaveholder keepsthem as perfectly as any other member of human society.

swum lazdere et alterum non “Honeste

vivere, ? (4.)

t

statesman, soldier, physician, preacher or other expert in anygreat department of human exertion where mind holds domi-nion over matter, is clothed with power, and surrounded withmaterials for the enjoyment of mental and physical luxuries,in proportion to the measure of his capacity and attainments.And all this is at the cost of the mechanical and agriculturallaborer, to whom such enjoyments are denied. If the socialorder, founded in the different natural capacities of individualsin the same family, which produces these inequalities, is notunjust, who can rightfully say of the like inequality in condi-tion between races differing in capacity, that it is contrary toa law of nature, or that the governing race who conform to itare guilty of fraud and rapine, or that they commit a violenceto right reason which is forbidden by morality

v. The People,


Lemmon

dNP TIME, HOWEVER SHORT.Joint Resolution of April 16, 1857.

c. IN ANY FORM OR UNDER ANY PRETENCE, OR FOR 1 THE PEOPLE OF THIS STATE WILL NOT ALLOW SLAVERY WITHIN HER BORDERS

,

(C&is Arg., 18 Pick., 195, and cases cited; PAINE,J., 5 Sand., 710; McDougall Arg., 4 Scam., 467, 468.) 3. What-ever others may do, no American judge can pronounce slaveproperty an exception to this rule upon the general groundthat slavery is immoral or unjust. Every American citizen isbound by the Constitution of the United States to regard it asbeing free from any moral taint which could affect its claims tolegal recognition and protection, so long as any State in theUnion shall uphold it. (1.) The provisions of the FederalConstitution for its protection cannot otherwise be kept in can-dor and good faith. (2.) In this spirit, faithful Christians and

transitus through ourterritory with their negro slaves. 1. The special injunctionsand guarantees of the Federal Constitution secure to citizens ofthe several States free intercourse with a11 parts of the Repub-lic. 2. Even inter-state comity, in its simplest form, awards afree transit to members of a friendly State with their familiesand rights of property, without disturbance of their domesticrelations.

;fest Destiny.) Prior to that time, no legislative act of this Statehad ever declared that to breathe our air or touch our soilshould work emancipation ipso facto; nor had any statute beenenacted which, by its true interpretation, denied to our fellowcitizens of other States an uninterrupted

Man-; Westminister Review, vol. 45, 76 -98, article Ed. 2, 797 affect this case.

( retroact so as to

” principle, demand, asa consequence of the precedent, the power to destroy, we mustwithdraw all such concessions and go back to principles.

II. The unconstitutional and revolutionary anti-slavery reso-lution’ of April, 1857, cannot,

ell ” has been thus con-

ceded, proceeding on the “take an ‘I an inch

1those to whom for peace sake

295)) declined toperil all by delay and discord upon a scruple about inserting inthe compact an unnecessary word (19 How., 575); but when

Gush.,

407), and “unhappy” (id., 409). The fathersof the Republic, when forming a temporary league, in the faceof the foe and on the eve of battle (7

v. The People.

nate” (19 How.,


Lemmon

VI. 73SMITH.--VOL.

the characteristic difference between it andthat of 1817. (2.) It is impossible to give to the legislation of1817 the comprehensive effect which was designed by thetreasonable resolution of 1857. All will admit that a fugitive

” as used in the legislation of1857, and marks

” differs in mean-ing from the word “WITHIN

(L INTO

.according to their natural import without thosesections. So construed they would not extend to a mere car-rying through the State. The word

,’to be applied

act of 1817, in the view most adverse to the slave owner,‘merely left the words “imported, introduced or brought into

; Opinionin this case, 5 Sand., 716.) (1.) The repeal by the act of 1841of the special privileges given by sections 3-7 inclusive of the

; Laws of 1841, 227 § 9 (Jaws of 1817, 136,

Stat,e being his owner, when quietly passingthrough this State on lawful occasion and without unnecessarydelay.

INTO this State, ” unless ex-tended by construction far beyond their import, do not applyto the mere transitus of a slave, in custody of a citizen of aslaveholding

9 1.) 1. The words“imported, introduced, or brought

Laws of 1841, 227, §§ l-16; S., 656, §$ 9, 15, 16, 17; 1 R.

understood, does not deny suchright of passage. (Laws of 1817, 138,

31st, 1817, as revised in 1830, evenwith the modification of its effect wrought by the repeal of itsexceptions in 1841, rightly

16.)III. The act of March 1, §§

S., 657,; 1 R. Gush., 298 Sim’s Case, 7 ; R., 379 L. Fitzgerakd, 7 ; Commonwealth v.sentence in re Kirk, 1 Park. Cr. Cases, 95

(Last

alld Circumvention, may be justified if the constitutional com-pact be void; but if it be valid, he violates honor and con-science. It may be, however, that his devices are too subtleand ingenious to be reached by ordinary legal sanctions.

‘(higher law, ” and devoted to those infernal deities, Evasionspeare’s doctrine, carries in his bosom a chapel illuminated bythe

Shak-

l), is allowable only in respect to pacts having the form of con-tracts, but, which are of no binding force or obligation in lawor morals. (4.) The American citizen, who, applying

o. The People .

even honorable unbelievers keep all lawful contracts. (3.) Por-tia’s mode of keeping promises (Merchant of T&nice, act 4, scene

Lemmon

ALBANY, MARCH, 1860. 577

*.

§ 2, sub. 2, 3). No citizencan be deprived of his privileges and immunities by the

duty (art. 4, ; to surrender to every other fugitives from its justice,

or from any personal $ 1)

Thatproposition cannot be maintained. Each State is required togive full faith and credit to the public acts of every other (art.4,

sushined.) (3.) Gas., 69, cannot be re

Kirk., 1 Park. Cr. L. R., 381; In v. Fitzgerald, 7 Cow ,.

obiter dictum in Somerset ’s case, (2 Hagg., 107; Gibbons v.Ogden, 9 Wheat., 1;

CiLsh., 299,317.) (1.) At all events, the States have not reserved the rightto prohibit and thus destroy commerce or any portion of it.(2.) The judgment below asserts that a citizen of Virginia, inpossession of his slave property, cannot pass through the navi-gable waters of a non-slaveholding State on board of a coast-ing steamer enrolled and licensed under the laws of Congress,without risk of having his vessel arrested under State law andhis property torn from him by force of Lord M ANSFIEL D’S

Sim’s Case, 7 SHaw, Ch. J., Per ; Miln, 11

Pet., 158, 159, 156 C;ty of N. Y. v.

perWAYNE , J., and the Court, 7 How., 410, 411; per MCKINLEY,J., 7 How., 455; per STOR Y, J.,

; ; per MCLEAN, J., 7 How., 400 S. R., 572 U;

subd. 3.)(2.) This power is absolutely exclusive in Congress, so that noState can constitutionally enact any regulation of commercebetween the States whether Congress has exercised the samepower over the matter in question or left it free. (PassengerCases, 7 How.

6 8, S, art. 1, % (Const. &d with the Indian tribes. ”

.Pick., 224.)IQ. The State of New York cannot, without violating the

Constitution of the United States, restrain a citizen of a sisterState from peaceably passing through her territory with hisslaves or other property on a lawful visit to a State where sla-very is allowed by law. (1.) Congress has power “to regulatecommerce with foreign nations, and among the several States

; Curia by SHAW, J., 18

o. The People.

from slavery in Virginia, found in Vermont, may be carriedback through New York under an extradition certificate. Thiswould seem to prove that carrying through the State was not,in the judgment of the Legislature, a bringing into the Statewithin the meaning of the act of 1817. (Curia by STORY, J.,16 Pet., 624

57 8 IN THE COURT OF APPEALS.

Lemmon

GRIER, J., 7; per J., 7 How., 417, 424, 426, 428;

per WAYNE,

;nor from any precautionary regulations for the preservation ofher citizens or their property from contact with any person orthing which might be dangerous or injurious to their health,morals or safety. (Per MCLEAN, J., 7 How., 402,403, 406, 408

and., 567.)4. This doctrine does not preclude a State from exercising ab-solute control over all t&ding of any kind within her borders

; R. J. WALKER, contra, app., 48 and onward; Curiaper MARSHALL , J., Gibbons v. Ogden, 5 Pet.,

; Argt. of Mr. C LA Y, 15 Pet., 489, Mr. W EB-STER, 495

Gmves v. Slaughter, 15 Pet., 510, 511, 513, 515, 516, inpoint as to slaves

; perGRIER , J., 7 How., 461, 463, fourth point, 464; per BALDWIN ,J.,

CATRON,J., 7 HOW ., 450, 451; per MCKINLEY, J., 7 How., 463

_per ;

S R., 572; per MCLEAN, J., 7 How.,401, 405, 407; per W AYNE , J., and the court, 7 How., 412,413’430,352; per WAYNE, J., 7 How., 433,435

U; &es, 7 How. n6r can any State interrupt or disturb them in such passage.(Passenger

di_fer-ent States as well as between them and foreigners. Conse-quently, no State can impose duties, imposts or burdens of anykind, much less penal forfeitures, upon the citizens of otherStates for passing through her territories with their property,

merce,” as it is used in this constitutional grant of exclusivepower to Congress, includes the transportation of persons andthe whole subject of intercourse between our citizens of

“corn-X. R., 461, Passenger cases.) 3. The word U; ; 7

How. Sewell’s Slaves, 3 Am. Juris., 406, 407 ;

$ 9, subd. 5.) (4.) Until the pre-sent case, it seems to have been universally conceded, and, atall events, it is clear in law, that a citizen of any State in theUnion may freely pass through an intermediate State to theterritory of a third without sacrificing any of his rights. (PerSHAW , Ch. J., 18 Pick., 224, 225; per CURREN , Willard v. Peo-ple, 4 Scam., 468

; szdd. 2 $ 8, (Bnst., art. 1, it in any way.

§ 8, subd. 3.) And Congressitself is forbidden to impose any burden on the external tradeof a particular State, or to burden or prefer

§ 1.) Com-merce between the States is placed under the exclusiveControl of Congress. (Art. 1,

V. The People.

579

action of a State other than his own. (Id.,

ALBANY, MARCH, 1860.

Lemmon

zen, when within a State in which he is not domiciled, thegeneral privileges and immunities which, in the very nature of

citi-‘States. And the object of this section is to secure to the

domicil; forevery citizen of a particular State is a citizen of the United

subd. 5.) The latter term refers only to 5 1, 8 3, subd 3; art, 2,citizen of a particular State. (Art. 1,

“ citizen of the United States ” as well astion is not to be thus narrowed. The Constitution recognizesthe legal character

see-

ekfeetually as the slave is himselfconfined by the rule applied in this case. This power cannotbe conceded, (per GRIER , J., 7 How., 461,464.) 2. The

annd policy of thiskind, the non-slaveholding States could pen up all slaveholderswithin their own States as

n er a construction Cond., 562.) (2.) U dMarylannd, 6 Pet.,; Brown v. v. Brisbin, 19 Wend., 15

States, and exhibit such a rule in the feminine gender.(Frost

new ; an Amazonia may arise among

our

kc. It may establish an agrarian law. Per-haps Utah might visit heavy penalties upon any of its malecitizens for breathing its pure air or touching its pure soil with-out having at least six wives

oular age, owning slaves any where, or pursuing a particularoccupation,

parti-burdens on its own citizens of particular classes, say thoseof foreign birth, of German origin, over or under a

” as such State may al-low to its own citizens. Its object was to exempt him fromState power, not to subject him to it. (1.) Class legislation isdeemed perfectly legitimate. A State may impose grievous

plaint8 suffered from the order now under review. 1. Thissection would lose much of its force and beneficial effect if itwere construed to secure to the non-resident citizen in travel-ing through a State only such “rights

s&d. 1)affords the citizen of any State, peacefully passing throughanother, a right to immunity from such disturbance as the

Q 2, (art. 4, ” (( shall be entitled to all privileges and immu-

nities of citizens in the several States that they

oitizens of eachState,”

L( the V. The constitutional guaranty to Cond., 578.)5 Pet.,

Whit.,1;

v. Ogden, 9 5 How., 569, 570, 571; Gibbons ; Bow., 457; per B ALDWIN , J., 14 Pet., 615; per STOR Y, J., 16Pet., 625

V. The People.Lemmon


ne-transits and carry off his &op his vessel or his carriage in the stranger from burdens, or obstructions of any kind. T O

; but to exempt” which they award to their own citizens w rights to give strangers the samets compel States

” are here used essen-tially, though perhaps not exclusively, in a passive sense. Th eobject is not

‘l privileges and immunities governd or defined as a class under the State law.

The words

cannot be a member of any body of personsorganized.,

class legislation, for as awayfarer he

auother is to be free from local ;

; for, upon generalprinciples, taxation is only imposed on residents or on deal-ings

domicil One of these is to befree from all burdens and taxation whatever a State other than that of his :

necessarily withinof the United States whilst temporarily and and immunities of a citizen

&i&en. By the section quoted the citizen of each State is se-cured in all the general privileges

konverted by the Constitution into an absolute right of thewas

5s 132, 133,134) This comity, before existing between the States,

eh. 10, 189, 110; 108, 0s ch. 8, book 2, ;Vattcd, ;§$ 119, 127 7, ch. book 3, (Mattel,

Even belligerents are allowed to pass their armies overa friendly neutral territory.

f&et, any stay beyond the reasonable halt ofa wayfarer, he becomes a citizen of New York, and relinquishesall benefit from these important guaranties of the Federal Con-stitution_ 4 By the comity of civilized nations, the strangeris allowed to pass through a friendly territory without molesta-tion.

Stake of New York without the intent of leav-ing, or makes, in

from his journey,sits down in the

to the stranger.The moment a citizen of Virginia, ceasing

only CUBTZS, J., 19 How., 580.) 3. This section, like

its brother in the judicial article, applies pey ; 8 2

(Art.3,

a$s of the federal judiciary to the non-resident citizen in all controversies between him and the citizensof the State in which he may be temporarily sojourning.

w. The People.

citizenship, as recognized and established by the Federal Con-stitution, belonged to that status; so that by no partial andadverse legislation of a State into which he might go as astranger or a sojourner can he be deprived of them. It is acurb set upon State legislation harmonizing with the provisionwhich extends the

Lemmon ALBANY, MARCH, 1860. 581

1 Unless they are enforced, in the form and to the extentwhich we demand, the unbridled sovereignty of our smallest

” What is there to pro-tect this Union from the ruin and desolation of such lawsexcept the guaranties of the Federal Constitution now reliedupon

I /

L( The positive prohibitionbecomes an active, operating, ruling principle, and not a paren-thesis. It strikes down and destroys

671)) giving it a new application,

,well adopt the anti-slavery speech of Judge S WAN (6 Ohio ,

” mightLL liberty to all women

” might applaud the ,enactment of the latter. On that occasion, one of the latterclass upon a rostrum proclaiming

‘( strong minded women

; and that anywife hereafter imported, introduced or brought into this State

class known as

‘(that the saidrelation shall no longer exist within this State

;

5 10.) (2.) A State mightenact that all obligations arising from the relation of parentand child during the minority of the latter are abolished with-in this State, and any child hereafter “imported, introduced orbrought into this State, ”shall thenceforth from all such obliga-tions be free. A State might enact that the relation of husbandand wife was fraught with mischievous consequences, and infact a cover for gross tyranny and oppression

1, av-t. S, U.

Lazu, 161,162.) (1.) Comity, like municipal law, has its foundation incompact, express or implied. The social or international com-pact between the States, as such, was fixed by the FederalConstitution. (Const.

(Bozuyer ’s Public

each other, which has been denominated international law, hasno place in the relation between the States of this Union,except occasionally, in particular cases, to illustrate, by a some-what remote analogy, the duty of a State toward the citizens ofanother “State, or in giving due effect to rights arising under itslaws. That duty is imposed, not by comity, as a rule of action,but by the Federal Constitution.

.own State and the Federal Constitution-is a manifest invasionof his just “privileges and immunities. ” 5. Comity, as under-stood in speaking of the practice of friendly nations towards

gro servant -recognized as his property by the laws of his

V. The People.

----_


Lemmon

574)) did not include all to whom theseterms were lexicographically applicable. Indians living in

” mentioned in the State Constitutionsof that day (19 How.,

“ male inhabitants ”

and 4), in November, 1777, and the “inhabitants

” spoken of in the Articles of Con-federation (art.

“ free inhabitants ; the ” who made the Declaration of Independence in

1776 “ men

Jidy, 1858, 120.)(2.) The

(Ed&b. Rev. for

eeremouy, could not Congress and thefederal judiciary, or the national executive by its militaryforee repress the practice?

is incompatible. Self-preservation, if not a lawof nature, is an invariable practice among men. If a Stateshould fall into Thugism and respect the assassination of tra-velers as a religious

practice

to anyextent without violating constitutional restraints. Our Repub-lic was founded by a civilization, with the existence of whichthis

as Thugs regard murder, andshould conduct its rites with all the decency and external purityof patriarchal times, Congress, within its sphere, and the severalStates, within theirs, might still legislate against it

at the time. (1.) If Utah should make its pe-culiar institution a religious duty,

to the sphere covered by theirmental vision

; others, if we would preserve the Re-public, must be carefully limited intent of their framers

Dissazt, 464.) 2. Whilst, in actual administration,some words used in our great political charters must thus betaken to comprehend more than was in the contemplation or

; JudgeD ANIEL 'S

S. R., 443 % Fitzzugh, 12 How. C&ef v. (Gejee

ill&dents and looking to the substance of the thing, found inthe Constitution a government for our great rivers and inlandseas.

V. The People.

State, so long as our present Union lasts, will hold in its handthe power of dissolving our whole social system. Evil pas-sions or some new fanaticism might at any moment set thatpower in motion.

VI. The general doctrines of the court in Dred Scott ’s casemust be maintained ’ their alleged novelty notwithstanding.1. That admiralty jurisdiction could exist without either tidesor salt, was an idea too novel even for the great mind of ChiefJustice M ARSHALL ; but, at last, judicial wisdom, sharpenedand impelled by strong necessity, cast aside these immaterial


right, and is

.

Dad., 99.)

Joseph Blunt, for The People, respondents.

I. The state of slavery is contrary to natural

1 (Pm

Lord S TOWELL ,

iloctrine laid down by it in this sentence is inconsistent withthe peace of this country and the rights of other States. ”

court below should be cor-rected in the view which it has taken of this matter, since the

farever,VII. “It is highly fit that the

our Republic

.pose, he may lurk until the hour when it shall be his pleasureto apply the torch and explode

pur-to accomplish the fell

negro-philism so frequentlyappeals, will irresistibly demand the dissolution of our Union.We maintain that the negro was not permitted during the stormof battle to steal into a place in the fundamental institutions ofour country, where, with full power

aB privileges and immunities of citi-zens,” the law of nature, to which

“entitled in theseveral (other) States ta

I), &cl. § 2, (Art. 4, ‘& citizens ” of the State in which they dwell, and thereforeunder the Constitution

N&h that they are

it cannot be done,(4.) Whenever the judiciary of the Union shall declare in re-spect to the emancipated negroes of the

; i&

was impossible. It never has been done

socialunion by an indubitable law of nature ; what folly it wouldhave been to endow him with political equality. Indeed,

lex. (3.) The negro was forever excluded from m-at nm&ndti De

209)., negroes had been permitted inparticular places ’ by an overstrained liberality in the interpre-tation of laws, or by ignorance of them, to glide noiselesslyinto a partial exercise of political power, an inference fatal tothe Republic should not thence be drawn.

ariginal source of allpolitical power were the same class who acted together at theoutset. If, in such rare instances and to such limited extent asto escape notice (18 Pick.,

”whom they recognized as the supreme

‘L citizens

af our revolutionarystruggle the same great family of States sat down to frame thelaws for a more perfect and a perpetual union, the

J.,Contra, 19 How., 582.) When at the close

o. The People.

their tribes were not included (20 Johns., 710, 734 ; 19 How.,404.) The negroes were not included (19 How.; C URTIS ,


Lemmon

14VI.SMITH.--VOL. vol.,

Novz&, lib. 1, ch. 5.)In 1738, Jean Borcaut, a slave from St. Domingo, was

landed in France, and some formalities required by the edictof 1716 having been omitted, he was declared free. (15

Jure de(Gu&&a

Phil&more on International Law, 316-345.)In 1531, the Supreme Court at Mechlin rejected an applica-

tion for surrendering a fugitive slave from Spain.

; 4 Martin, 385.)Case of the Creole and opinion in the House of Lords, 1842.(1

; Bodin de Rep., lib. 1, cap. 5 Embossador,

lib. 1, p. 418 Wicguefort ’s id., chap. 10, 2, 1;

(Grotius,lib. 2, ch. 15, 5, 1;

Cress., 448.)II. The law of slavery is local, and does not operate beyond

the territory of the State where it is established. When theslave is carried, or escapes beyond its jurisdiction, he becomesfree, and the State to which he resorts is under no obligation torestore him, except by virtue of express stipulation.

& Fm6e.s v.

Cochrane, 2 Barn. man&e; 18 Pick., 216; 2 M cLean, 596; 16 Pet., 11;

Z ’IIu-EscZavage in Code de (Vide nu tz me . (Cap. 42:) The right to a slave is different from

the right to other property. in&a

o thominis libertas a Deo Sed homine

et pro vitio introducta est servitus.: Ab

Iib. 1, ch. 3.) Fortescue, in his dis-course to Henry VI, on the laws of England, says

Politic., Aristotle ; §§ 94, 95.) Slavery is contra naturam. (Just. Inst., lib.

1, tit. 3

(Edict.Theod.,

v. The People.

not regarded with favor in any system of jurisprudence. Al llegal intendment is against it, and in favor of freedom. Sla-very is the ownership of a man under the local laws of a Statewhere slavery exists. It is not derived from any compact orconsent of the slave. It originates in force, and its continu-ance is maintained by force. According to the law of slavery,the children of the slave become slaves. His labor and allthe products of his labor belong to his master, and that labormay be coerced, at the discretion of the master, by stripes, orany other punishment short of death. Slavery requires apeculiar system of laws to enforce the rules of the master,which are irreconcilable with the jurisprudence of Stateswhere it does not exist.

The Roman law did not allow freedom to be sold.

Lemmon


Ken.tuoky, she became free.

Ryl., 697.)In 1820, the Court of Appeals in Kentucky held, that where

a slave born in Kentucky had been taken into Indiana underterritorial laws, allowing the introduction of slaves withouttheir becoming free, and afterwards was brought back to

& Dowl.; 3 Cres., 448 &

Jud,aent for defendant, onthe ground that they became free by coming on board a Britishship, it being neutral territory. (2 Barn.

Cockburnheld them to be free, and the owner, Forbes, sued him in theKing ’s Bench for their value.

!i’!,82.) In 1824, the doctrine was applied to thirty-eight slaveswho came on board of a British man-of-war off Florida, hav-ing escaped from a Florida plantation. Admiral

X

App., 396.) In the Somerset case,Lord M ANSFIELD held, a negro who had been bought in Vir-ginia and brought to England, to be free. (20 Howell

(Fergusson’s Rep. on Divorce,

126), LordN ORTHINGTON held that a slave becomes free as soon as helands in England. In the case of Knight, the negro, the Ses-sions Court, in Scotland, in 1770, held the same principle

Eden,. Ch. Rep., Stanby v. Harvey (2

boardiand the slave was declared free. (Bodin. de Rep., lib. 1, 41.)

In 1762,

Republica, cites two cases of the same char-acter in France. One where a Spanish Ambassador brought aslave in his retinue, and in spite of all remonstrance he wasdeclared free. The other, a Spanish merchant, touching atToulon, on his way to Genoa by sea, with a slave on

PM. on International Law, 342.)Bodinus, in De

Fonctions, lib. 1, p. 418; Ses(Wiquefirt’s Ambassador et

; having been taken into Holland he claimed his free-dom, and was declared free.

, a Pole went into Russia, and sold himself intoslavery

Nouvelles, 406.)I n

C&bres, 3.) Before 1716, slaves from the colonies be-came free as soon as they landed in France. (Id.)

In 1758, Francisque, a negro slave from Hindostan, wasbrought into France, and although the formalities of the edictsof 1716 and 1738 had been complied with, he was declaredfree, because those edicts had not been extended to slaves fromthe East Indies. (3d Denissart Decisions

Cardses

V. The People.


Lemmon

(14firtin ’s R., 401.)In 1835 it held that a slave taken into France, and afterwards

; andthat having become free, removal into a slave State with hermaster did not make her a slave again.

& Johns., 107.)In 1824, the Supreme Court of Louisiana held, that a slave

taken from Kentucky iuto Ohio to reside, became free

Farr.Oakes, 5

L&j& 172.)In 1813, a slave, occasionally taken by his owner from

Maryland, to work his quarry in Virginia, in all twelve months,was held to have become free-the law of Virginia havingprohibited the importation of slaves. (Stewart v.

F&her,1

; Hunter v. Isbelt, 5 Call’s R., 430 W%on v.

(rd.,472.)

In 1805, the Court of Appeals of Virginia held, that a Vir-ginia slave, taken by its owner into Maryland, and kept theremore than a year, became free upon being brought back toVirginia-that State having prohibited the importation ofslaves. (

construed-implication without any scrap of law, written or unwritten,statutory or common, from which the inference could be drawn-to revive the right to a slave, when that right had passedover to the slave himself, and he had become free.”

Itwould be a construction without language to be

;and we are not aware of any law of this State which can or doesbring into operation the right of slavery when once destroyed.

is the right of another to the labor of a slave, whether exer-cised or not, which constitutes slavery, or involuntary servi-tude. The right, then, during the seven years ’ residence ofLydia in Indiana, was not only suspended, but ceased to exist

X Marsh. R., 470.) Again, "itV. Lydia, 2 A. (Rankin

?egulations, is unquestionable. But we view this as a rightexisting by positive law of a municipal character, withoutfoundation in the law of nature, or the unwritten and commonlaw. ”

LL in deciding this question, we disclaimthe influence of the general principles of liberty which we alladmire, and conceive it ought to be decided by the law as it is,and not as it ought to be. Slavery is sanctioned by the lawsof this State, and the right to hold them under our municipal

v. The People,

The court said, that

‘ALBANY, MARCH, 1860.

Lemmon

jurispru-

(Com-monwealth v. Aves, 18 Pick. R., 193.)

III. The provision in the Federal Constitution relating tofugitive slaves, recognizes this principle of universal

SRAW held that a slave temporarilybrought by his owner into Massachusetts, became free.

v . Horton, 5 id., 615.) In this casethe court held that this freedom was acquired by the action ofthe law of Massachusetts upon the slaves coming there.

In 1833, Chief Justice

Be tt y ;

recoguized the principle that aslave landing in a free State became free. (Ellis v. Welch, 4Rich., 468.)

In 1840, the General Court of Virginia held that a slavetaken by her master into Massachusetts and brought back intoVirginia, was entitled to her freedom. (Commonwealth v. Pleas-ant, 10 Leigh., 697

officer took his slave to hispost in the northwestern territory, the slave was held free.(Rachel v. Walker, 4 id., 350, in 1836.)

In 1851, the Court of Appeals in South Carolina, in anaction for the value of a slave,

McEinney, 3 id.,270, in 1833.) The same, where the slave on his journey wasdetained four weeks in Illinois. (Wilson v. Melvin, 4 id., 592,in 1837.) And where an army

(&Llia v.

dfi. Rep., 36, in 1829.) Also, that a slavetaken into Illinois on his route to Missouri, but hired by aresident while there, became free.

(Milly v. Smith, 2

; 14 M&tin Louis. R., 401.)The Supreme Court of Missouri held, that the actual resi-

dence of a slave in Illinois is sufficient evidence of freedom.

ney, 1 id., 328 ; Josephine v. P&t-Himel, 10 Louis. Ann. R., 185

v. Smith, 13 Louis. R., 444;Virginia v.

; Smith I;ouk. Annual R., 180 Prez;ul,

2 (Ezlgenie v.

; and that he did notbecome a slave upon being brought back.

Befo;ethe act of 1846, the courts of Louisiana always held that aslave taken into a free State became free

N&h, 4 Martin, 390.)of that State could be justified, by proving him

to be a fugitive slave. (Forsyth v.

L\S a slave by a bill of sale executed in a free Stateor territory, must be deemed free, unless the right of convey-ing him out

Marot,8 Louis. R., 475.) In 1816 the same court held that a per-son claimed

II. The People.

brought back to Louisiana, became free. (Marie Louise v.


Lemmon

escap-low. (Art. 5 of Amendments.) None of these provisions

have any reference to this case. They are not fugitives

$ 2.) That no citizen shallbe deprived of life, liberty, or property, without due processof

all privileges and immunities of citi-zens in the several States. (Art. 4,

to 5 1.) That the citizens of each

State shall be entitled

Q 2.) That full faith and creditshall be given in each State to each State, to the public acts ofevery other State. (Art. 4,

hkld by virtue of any provision of theConstitution of the United States. The provisions cited onthe argument before Mr. Justice P AINE are: That relating tofugitives from justice. (Art. 4,

V. They cannot be

in transitu withtheir slaves, was repealed in 1841. (Ch. 247.)

The right to declare and control the condition of its citizensis a right belonging to the States, and has not been conferredon the Federal Government. Otherwise the whole power overslavery must be deemed within the control of Congress.

tence whatever. Every such person shall be free. ” “ Everyperson brought into this State as a slave shall be free. ” Theexception originally made in favor of persons

pre-on any § 1.) “No person held as a slave shall be

imported, introduced, or brought into this State, 1, tit. 7, 656, part

S,

1429.) C. C. Pinckney, in speaking of this provision, says:“We have obtained a right to recover our slaves, in whateverpart of America they may take refuge-which is a right wehad not before. ” (16 Peters, 648.)

IV. The persons here claimed as slaves, are free by theexpress enactment of the Legislature of this State. (1 R.

&nstitution, 1787, pages 306, 365, 384.)It was then deemed improper to admit in the Constitution theidea that there could be property in men. (Madison ’s Works,

“ under the laws there-of.” (Journal of Federal

;” because some thought slavery could not be legal ina moral point of view, and substituting

LL held toservice

dence, and imposes on the free States an obligation which islimited to fugitive slaves. If slaves were recognized as pro-perty under the Constitution, this provision would be unneces-sary. When this provision was under discussion it wasamended by striking out the word ‘(legally” before

_People.v. The Lemmon


; Rhode; New Hampshire, 1783 Vermont in 1777 rion acts of (Ernancijnx-

; butto remit him to the courts of the State from which he fled.But this is the extent of her duty, her bond extends no fur-ther than to the fugitive. As to all other persons, her lawsprotect their personal liberty against all claimants.

It was not contemplated, at the formation of the Constitu-tion, that slavery was to be a permanent institution of theUnited States. It is inconsistent with the principle that lies atthe foundation of our government. It is in contradiction tothe Declaration of Independence, and to the preamble to theConstitution. All the provisions of that instrument and con-temporaneous history look to its ultimate extinction by thelegislation and action of the State governments.

;and not to inquire into the nature of the duty of service onthe part of the fugitive, whether a slave or an apprentice

- rights of persons and personal liberty. Even in consenting tothe reclamation of fugitives from service, she does not acknow-ledge the law of slavery. She agrees to ignore that question

General Government has not the power; andthe right to do so does not exist. New York having prohi-bited the act, no jurisdiction can declare her law unconstitu-tional. She has the right to reiterate the law of nature-topurge her soil of an evil that exists only in violation of naturalright-to maintain, in practice as well as theory, the sacred

Stat’e, the

v. The People.

ing into this State from another State. We give full faith andcredit to the act of Virginia, that made these persons slavesthere. We allow the appellant all the privileges and immuni-ties of a citizen of this State. He has not been deprived ofproperty by these proceedings. The appellant had no pro-perty in these persons. It ceased to be property when hebrought them into the State of New York.

The Constitution of the United States is a grant of powersto the General Government. It follows, by necessary conse-quence, that what is not granted is reserved. If there is nogrant of power to enforce upon New York the obligation toallow a citizen of a slave State to bring his slaves here andretain them here as slaves, while sojourning or passing throughthis

Lemmoxl

I


.

is not an obligation to be enforced by a superior, but

§ 16.)There can be no such comity here, because the State has

made an express statute declaring these persons to be free.Comity

L. ii, ch. xxii, Grotius, ; Earle, 13 Pet.,

589

transitu, the consti-tutional provision as to fugitives would be superfluous.

2. No comity of States requires us to admit slavery into ourState in any form. In extending comity towards the laws ofother States, it is the State and not the Court that establishesthe rule. (Chief Justice T ANE Y, in Augusta v.

t&u&o alterius. If the general right existed, and it wasadmitted that a slave of a slave State might still be held ifescaping into or taken into a free State in

unius,Eqpressio

figitives from service, is the only possible case where such anobligation can arise. And by incorporating this provision inthe Constitution, every other case is excluded.

to allow a slave within her borders, in any form or under anycircumstances. The provision relating to the surrender of

; the latter being descriptiveof slaves, and the former of free persons. (3 Mad., 1569.)

VI. These persons are not to be held as slaves, under anyimplied covenants between the States of the Union, nor byany rule of comity.

1. There is no implied obligation on the part of New York,

” was substituted for “servitude,”on motion of Edmund Randolph

‘( service ,1589.) The word

Li held to service underthe laws thereof. ” (Journal, 384, and Madison, pp. 1558 and

was amended September 15, bystriking out ( ‘legally, ” so as to read

;” and it

the Con-stitution, the Convention was careful not to do anything whichshould imply their sanction of slavery as legal. The provisionreported by the committee, September 12, 1787, read, “legallyheld to service

Heker’s Crisis, 193-224.)In incorporating the fugitive slave provision into

; WilZ, 1 vol.,

569 TVmhington’s ; Je$erson’s Notes, 152 ; Woks, 1429

; Madison ’s

; Bill of Rights of Massachusetts,and decision in James v. Lechmere, in 1770, that slavery wasillegal in that State ; 2d vol. Franklin ’s Works, 517

; and Pennsylvania, 1780 Jmsey,

1804 ; New ; Connecticut, 1784 ; New York, 1799 Ishnd, 1784

v. The People.

*ALBANY, MARCH, 1860. 591

Lemmon

1.)‘VII. These persons cannot be restrained of their liberty,

whatever may have been their state in Virginia. If restrainedof liberty here, it must be either under and by virtue ofour laws, or under the laws of Virginia. The allegation of

§ x, L. ii, ch.(Grot.,

152)) afterremarking briefly upon the question, whether or not prisonersof war can be enslaved, “This topic has been enough dis-cussed. I shall not pursue it. Fortunately this disgrace tohumanity has been banished from Europe. ”

9 Gens., lib. 3, ch. 8, des Vattel (Le Droit

§ 5.) If the sanctityof personal liberty was as much regarded in practice as it is inthe theories of government, and law and morals-if courtsand legislatures declared in this particular case the admittedgeneral law, a cogent argument may be drawn in favor of theliberty of these persons, from the maxims and principles ofthe laws of nations, as developed by the highest authority.Says

cl~. v, ofLaws, b. 15, (§ 6, Mont&. Spirit

in his Preliminary Discourse) therights and duties of nations, we must investigate the naturalrights and duties of individuals. The laws of nations are, intheir origin, only natural rights of men applied to nations.

Aves, 18 Pick. R., 221; 3 Am. Jurist, 404.)No comity requires us to allow an act here, by citizens of

another State, that if done by our own citizens would be afelony.

The comity of nations is based upon principles that destroyall right to hold these persons as slaves. The laws of moralright, the recognition of personal liberty by the law of nationsforbid it. A state prisoner, escaping from Austria or Italy (aslave to the law), cannot be reclaimed. A serf from Russia,or a Barbary slave, brought hither by his master, in transitu,could not be here restrained from liberty by any law or comity.To discover (says Mattel,

; Willard v. The People, 4 Scam., 461; Common-wealth v.

$323, 24, 36, 37

Confict of Laws, (Stop,

v. The People.

a courtesy allowed by the party assuming the duty. In deci-ding whether comity requires any act, we look to our ownlaws and adjudication for authority. And it can never beexercised in violation of our laws.


Lemmon

t5&IT&-VOL. VI. and these persons while there, attend

11. The whole question of the case, then, is, does the rela-tion of slave owner and slave, which subsisted in Virginia be-tween Mrs. Lemmon

Q 39.)s., 567,

flows from the writ by thesame legal necessity that required the writ to be issued. (2 R.

; and enlargement of liberty, unless suchcause to the contrary be shown,

*o&e of the writ is to enlarge the person in whose behalf itissues, unless legal cause be shown for the restraint of libertyor its continuation

§ 31.)In behalf of a human being, restrained of liberty within

this State, the writ ’ by a legal necessity, must issue. The

S, 565, R. § 4; 1 (Con& art. 1, ,(I) against legislative invasion, and (2) against judicial discre-tion.

§ 21.) This right is absoluteS, 563,

pretencewhatsoever, unless by certain judicial process of Federal orState authority. (2 R.

Eva&s, for the respondents.

I. The writ of habeas corpus belongs of right to every per-son restrained of liberty within this State, under any

* William M.

Jones v. Van Zandt, 2 McLean, 596.); Case of the Antelope, 1 0

Wheat., 420; M?tss. R., 366 Curtis, 6

; Green-wood v.

& Cress., 448 Co&rune, 2 Barn. ; Forbes v. Wedder-

burn, id., p. 2 V. K&ight

6 ;Somerset’s Case, 20 Howell ’s State Trial, 79;

caunot invoke the aid of law,for no law exists for such a ease. It follows, that our laws, inthis respect, if they remain neutral, leave the parties to theirnatural rights. This being so, the slave is free.

VIII. They are free by the common law. (Co. Litt., 124,

;and our courts can only administer our own laws. The lawsof Virginia are not in force here. If the slave resists, howcan he be compelled to subjection? If the master has not thepower to enforce obedience, he

certain housein this city, against their will. The answer is, they are slaves.Our laws prohibit any such holding. They furnish no remedyif the person claimed refuse to be detained. The questionhere is, can they be detained? Certaiuly not by our laws

_~_

the writ is, that they were held and confined in a

O. The People.Lemmon

1860. 593ALBANY, MARCH,

A provision securing to the citizens of every State(C.) suffrage therein.

suffrage withinthe States as, respectively, supplying the basis of the federal

A reference to the political rights of

States to furnish an artificial enumeration of persons as thebasis of federal representation and direct taxation distribu-tively between the States.

(B.)

A reference to the civil conditions obtaining within the(A .) are-

States. The actual exceptions are special and limited, andprove the rule. They

statutes give no law on the subject. The Federal Constitutionand legislation under it have, in principle and theory, no con-cern with the domestic institutions, the social basis, the socialrelations, the civil conditions, which obtain within the several

Sandford, 19 How. ,460, 461, 486, 487.)

2. The Constitution of the United States and the federal

Dred Scott v. ;Con&. R., 59 Dalrymple v. Dalympb,

2 Hagg. Earle, 13 Pet., 519, 589;

§$ 18, 20, 23, 25, 29, 33, 35, 37, 38; Bank ofAugusta v. a@. Laws,

as a part of the law of this State. (Storybut

_ by administration

,,bycomity,” the laws of other sovereignties have force within thisState, they derive their efficacy, not from their own vigor,

or-(B.) From the Federal Government, whose Constitution and

Statutes have the force of law within this State. So far as thelaw of nations has force within this State, and so far as,

;

proceeds-(A.) From the sovereignty of the State, and is found in the

Constitution or Statutes of the State, or in its unwritten com-mon (or customary) law

force of lawwithin this State: Nothing has or can claim the authorityof law within this State, unless it

~1s tocompel the authority and power of this State to sanction andmaintain such restraint of liberty.

1. Legal cause of restraint can be none other than anauthority to maintain the restraint which has the

” for the restraint of liberty complained of, and so it legal

cause

courseof travel from Virginia to Texas, so as to furnish

commorant within this State, in the

o. The People.

upon them while

Lemmon


legisla-

; Lawsof 1857, 797.)

III. It remains only to be considered whether, under theprinciples of the law of nations, as governing the intercourseof friendly States, and as adopted and incorporated into theadministration of our municipal law, comity requires therecognition and support of the relation of slave owner andslave between strangers passing through our territory, not-withstanding the absolute policy and comprehensive

S;zn,dford, 19 How., 591,595 ; Dred Scott v. $ 28 S, 664, 3 16; 2 R.§ 1; id., 659, S, 656,

Litt., 124 b.)4. The statute law of this State effects a universal pro-

scription and prohibition of the condition of slavery withinthe limits of the State. (1 R.

Q 96 ; Co. Co@. Laws, Adna., 118,

104; Story I$agg. TJae Slave Grace, 2 ;Earvey, 2 Eden, 126

v.Shun&y ; & Cress., 448 ; Forbes v. Cochrhne, 2 Barn. Wedderburn,

id., 2 V. ; Knight

&m-mersett’s case, 20 How. St. Trials, 79

; § 17 (Cons& art. 1,

m every other.3. The common law of this State permits the existence of

slavery in no case within its limits.

:

; N ELSON ,J., 459, 461; C AMPBELL , J., 508, 509, 516, 517.)

None of these provisions, in terms or by any intendment,support the right of the slave owner in his own State or in anyother State, except the last. This, by its terms, is limited toits special case, and necessarily excludes federal intervention

J;, 452 Sandford; Ch. ; Dred Scott v. Miln,

11 Pet., 136 Strader v. Graham, 10 How., 82, 93; New York v.

508510; Prigg v. Pennsylvania, 16 Pet., 611, 612, 622, 623,625;

; Groves v. Slaughter, 15 Peters, 506,McLean, 597 Van Zandt, 2 ; Jones v.C! R., 396 C parti Simmons, 4 Wash. _.Vx

LauJs of Slave States and of Free States onSlavery;

; 1 and 3 s&d. .5 2,; art. 4, $ 2, subd. 1 and 3 S, art. 1, U. (Gmst.

within every other the privileges and immunities (whateverthey may be) accorded in each to its own citizens.

(D.) A provision preventing the laws or regulations of anyState governing the civil condition of persons within it, fromoperating upon the condition of persons “held to service orlabor in one State, under the laws thereof, escaping intoanother. ”

o. The People.


case of strangers within our territory.

$$ 1, 2.)2. But, were such manifest enactment of the sovereign will

in the premises wanting, as matter of general reason and uni-versal authority, the status of slavery is never upheld in thecase of strangers, resident or in transit, when the domesticlaws reject and suppress such status as a civil condition orsocial relation.

(A.) The same reasons of justice and policy which forbidthe sanction of law and the aid of public force to the pro-scribed status among our own population, forbid them in the

Va@el, 1, 37, 23, 24; $5 36,Co@. Laws,

; Repealing act, Laws ’ 1841, ch. 247.) Uponsuch a declaration of the principles and sentiments of theState, through its Legislature, there is no opportunity or scopefor judicial doubt or determination. (Story

$§ 6, 7 X, part 1, ch.

20, tit. 7,

&tent or effect of the legislation on the subject,appears in the express permission once accorded to it, and thesubsequent abrogation of such permission. (1 R.

stay, shall not be tolerated upon our soil.That the particular case of slavery during transit has not

escaped the

LTOW., 591.)1. The principles, policy, sentiments, public reason and con-

science, and authoritative will of the State sovereignty, as such,have been expressed in the most authentic form, and with themost distinct meaning, that slavery, whencesoever it comes,and by whatsoever casual access, or for whatsoever transient

Earle, 13 Pet., 589; Dred Scott v. Sandford, 1 9; Bank of

Augusta v. Q 38 Con& Laws,

policy and actual legis-lation of the State exhibit the comity inquired of; and (2)whether the comity extends to yielding the affirmative aid ofthe State to maintain the mastery of the slave owner and thesubjection of the slave. (Story

V. The People.

tion which prohibit that relation and render the civil conditionof slavery impossible in our own society.

The comity, it is to be observed, under inquiry, is (1) of theState and not of the Court, which latter has no authority toexercise comity in behalf of the State, but only a judicialpower of determining whether the main


Lemmon

trover for his value.

.we must adopt the fabric of which it is a fragment and fromwhich it derives its vitality.

If the slave be eloigned by fraud or force, the owner musthave replevin for him or

to sustain it, is illusory.If we recognize the fragment of slavery imported by a stranger,

adjudication in the premises, no guard-houses,prisons or whipping-posts to uphold the slave owner ’s powerand crush the slave ’s resistance.

But a comity which should recognize a status that can subsistonly by force, and yet refuse the force

evideuce or

It has no code of the slave owner ’s rights or of the slave ’ssubmission, no processes for the enforcement of either, no rulesof

(D.) A State proscribing the status of slavery in its domesticsystem, has no apparatus, either of law or of force, to main-tain the relation between strangers.

which establishes it.munici$l law

is vain,and his captive is free.

(C.) The law of nations ’ built upon the law of nature, hasadopted this same view of the status of slavery, as resting onforce against right, and finding no support outside of thejurisdiction of the

s ta tus falls, for it has nothing to rest upon.To continue and defend the status, then’ within our territory,

the stranger must appeal to some municipal law. He hasbrought with him no system of municipal law to be a weaponand a shield to this status ; he finds no such system here. Hisappeal to force against nature, to law against justice,

other stage, fails, the

Ilknning’s Statutes at Large,vol. 10, 129; id., 11, 322, 324.)

It originates in mere predominance of physical force, and iscontinued by mere predominance of social force or municipallaw.

Whenever and wherever the physical force in the one stage,or the social force or municipal law in the

; ; 9 Geo., 580 ; 2 Dev., 263 ; Taylor ’s Elements of Civil Law,

429 §$ 1, 14, 15 Rtihts, qf *Bill

Va.,to nature, and at every moment it subsists, it is an ever

new and active violation of the law of nature. (Const. trary

ctn-

PI. The People.

(B.) The status of slavery is not a natural relation, but

Lemmon


; and (2) where the status itself isbrought within our limits and is here permissible as a domestic

as may be done without prejudice to domestic interests),of the status existing abroad

recognise the conse-quences, in reference to subjects within our own jurisdiction(so far

status of persons,does not require our laws to uphold, within our own territory,the relation of slave owner and slave between strangers.

This principle only requires us (1) to

domicil the power to fix the civil (F.) The principle of the law of nations which attributes to

the law of the

120,121, and cases ut supra.)

oursoil in their natural relations as men, their artificial relationbeing absolutely terminated. (The Antelope, 10 Wheat.,

territorid jurisdiction.By the law of nations, then, the strangers stand upon

;everything or nothing, must be our answer.

(E.) The rule of the law of nations which permits thetransit of strangers and their property through a friendly State

does not require our laws to uphold the relation of slave ownerand slave between strangers.

By the law of nations, men are not the subject of property.By the law of nations, the municipal law which makes

men the subject of property, is limited with the power toenforce itself, that is by its

the owner, as for“private property taken for public use. ”

Everything or nothing, is the demand from our comity

sherifl? must seize and sell the slaves.If the owner die, the surrogate must administer the slave as

assets.If the slave give birth to offspring, we have a native-born

slave.If the owner, enforcing obedience to his caprices, maim or

slay his slave, we must admit the status as a plea in bar to thepublic justice.

If the slave be tried for crime, upon his owner ’s complaint,the testimony of his fellow slaves must be excluded.

If the slave be imprisoned or executed for crime, the valuetaken by the State must be made good to

o. The People.

If a creditor obtain a foreign attachment against the slaveowner, the

Lemmon


ad that both Virginia and Texas are slaveholding States; that& transitu between Norfolk, in Virginia, and the State of Texas,

c~^pu.s.” It alleges thatthey were taken out of the possession of Mrs. Lemmon, whileBans named in the said writ of habeas

per-to be slaves, and

the property of Juliet Lemmon, as “the eight slaves or

appeilant, and it speaks ofthe colored persons who are therein alleged

tiken from the steamer City of Richmond, and to the manin whose house in Carlisle street they were confined. ” Thereturn is made by Lemmon, the

colored persons latelyIi Lemmings, ”

as the person having in charge “eight to the appellant by the name of

tha& city. Thewrit is directed confined in a certain. house in Carlisle street in New York, and at the time of presenting the petition, were

was issued, states that the colored persons sought to bedischarged from imprisonment were, on the preceding night,taken from the steamer City of Richmond, in the harbor of

pus COT-habeas J. The petition upon which the writ of DENIO,

fit& ut supra.)(co. fuvorem. libertati dant CASU @a IN OMNI No&afavet.libertuti non est, pui judicandus cru&liz Impius et

$$$ 51, 5) a., 89, 113, 114,96, 104, 620, 624)

(G.) This free and sovereign State, in determining to whichof two external laws it will by comity add the vigor of itsadoption and administration within its territory, viz., a foreignmunicipal law of force against right ’ or the law of nationsconformed to its own domestic policy under the same impulsewhich has purged its own system of the odious and violentinjustice of slavery, will prefer the law of nations to the lawof Virginia, and set the slave free.

Con$. Laws, fore@ domicil, cannot be held as a lawful continuing

relation here. (Story

; yet, incestuous marriage or polygamy, lawful inthe

to thatrelation here

as an authentic origin andsupport of the actual status.

It is thus that marriage contracted in a foreign domicil,according to the municipal law there, will be maintained as acontinuing marriage here, with such traits as belong

to recognize the foreign law

v. The People.

status,

-.Lemmon


casesto

the act was declared to be free. Among the excepted

pretence whatever, except in the cases afterwardsmentioned in the act, and any slave brought here contrary

asa slave should be imported, introduced or brought into thisState on any

unequivocal. B yan act passed in 1817, it was declared that no person held

or accident which is mention-ed as having compelled her to embark at Norfolk in the Cityof Richmond, is understood to refer to some circumstancewhich prevented her making a direct voyage from Virginia toTexas. The question to be decided is whether the bringingthe slaves into this State under these circumstances entitledthem to their freedom.

The intention, and the effect, of the statutes of this Statebearing upon the point are very plain and

; and this, I suppose, is what it wasintended to state. The necessity

rei;mbark in some other vessel sailing for thatpart of the United States

prosecuting her journey.If the ship in which she arrived was not bound for the Gulfof Mexico, she would be under the necessity of landing atNew York to

refers, nodoubt, to the exigency of that mode of

me&tioned, the necessity of landing, whieh is spoken of,

secure apassage from thence to her place of destination. As nothing issaid of any stress of weather, and no marine casualty is

; and,as a means of effecting that purpose, she embarked, in thesteamship mentioned, for New York, with a view to

ef%?ect. of these statements to be that Mrs.Lemmon, being the owner of these slaves, desired to take themfrom her residence in Norfolk to the State of Texas

” to take passage fromNorfolk in the above mentioned steamship, and that Texas washer ultimate place of destination.

I understand the

‘l necessity or accident

passage and transit and not otherwise, and that shedid not intend to sell the slaves. It is also stated that she wascompelled by

.pelled by necessity to touch or land, but did not intend to re-main longer than necessary, and that such landing was for thepurpose of

com-; that she was

Y. The People.

she had no intention of bringing the slaves into this State toremain therein, or in any manner except on their transit asaforesaid through the port of New York

CASES IN THE COURT OF APPEALS.

Lemmon

‘

Addph., 98.) Thus examined, the meaning of the stat-ute is as plain as though the Legislature had declared in termsthat if any person should introduce a slave into this State, in

SMITH .-V O L. VI. ‘76

& Stay, 4

Barn. (Bussty v.

left unrepealed, the rulesof construction would oblige us to look at the repealed portionsin order to ascertain the sense of the residue.

ifsuch residence be continued beyond that time such person shallbe free. ” In the year 1841, the Legislature repealed this sec-tion, together with the four containing other exceptions to thegeneral provisions above mentioned. (Ch. 247.) The effect ofthis repeal was to render the 1st and 16th sections absoluteand unqualified. If any doubt of this could be entertainedupon the perusal of the part of the title

; ; but the person so held in slavery shall

not reside or continue in this State more than nine months

LL Any person, notbeing an inhabitant of this State, who shall be traveling to orfrom, or passing through this State, may bring with him anyperson lawfully held in slavery, and may take such person withhim from this State

:

ch 20, tit. 7.)The intermediate sections, three to seven inclusive, contain

the exceptions. Section 6 is as follows

8, part 1, (R.

; and every person brought intothis State as a slave, except as authorized by this title, shall befree.”

8 16. Every person born in this State, whether white orcolored, is free. Every person who shall hereafter be bornwithin this State shall be free

u

pretence whatsoever,except in the cases hereinafter specified. Every such personshall be free. Every person held as a slave who hath beenintroduced or brought in this State contrary to the laws in forceat the time, shall be free. ”

No person held as a slave shall be imported, intro-duced or brought into this State on any

$1. (( :

9,X) The portions of this act whichconcern the present question were reenacted at the revision ofthe laws in 1830. The first and last sections of the title are inthe following language

$3 ch. 13 ’7, of 1817,

; butthey were not to remain in the State longer than nine months.(Laws

was that of a person, not an inhabitant of the State, passingthrough it, who was allowed to bring his slaves with him

v. The People.Lemmon


tribu-

deilned, in the absence of express legislation, by thegeneral assent and by the practice and usage of civilized coun-tries, and being considered as incorporated into the municipallaw, are freely administered by the courts. They are not, how-ever, thus allowed on account of any supposed power residingin another State to enact laws which should be binding on ourtribunals, but from the presumed assent of the law-makingpower to abide by the usages of other civilized States. Henceit follows that where the Legislature of the State, in which aright or privilege is claimed on the ground of comity, has byits laws spoken upon the subject of the alleged right, the

; but independently of suchrestraints (and none are alleged to exist affecting this case) thelegislative authority of the State over these subjects is withoutlimit or control, except so far as the State has voluntarilyabridged her jurisdiction by arrangements with other States.There are, it is true, many cases where the conditions impressedupon persons and property by the laws of other friendly Statesmay and ought to be recognized within our own jurisdiction.These are

modified by its own con-stitutional or fundamental laws

; to exclude therefromthose whose introduction would contravene its policy, or todeclare the conditions upon which they may be received, andwhat subordination or restraint may lawfully be allowed byone class or description of persons over another. Each Statehas, moreover, the right to enact such rules as it may see fitrespecting the title to property, and to declare what subjectsshall, within the State, possess the attributes of property, andwhat shall be incapable of a proprietary right. These powersmay of course be variously limited or

toenact this statute, the law of the State precisely meets the caseof the persons who were brought before the judge on the writof habeas corpus, and his order discharging them from constraintwas unquestionably correct. Every sovereign State has a rightto determine by its laws the condition of all persons who mayat any time be within its jurisdiction

If, therefore, the Legislature had the constitutional power

a The People.

the course of a journey to or from it, or in passing through it,the slave shall be free.

Lemmpn

602 CASES IX THE COURT OF APPEALS.

ions held as slaves by such of the States as allow the conditionper-

non-slave-holding States to establish provisions similar to those whichhave been stricken out of the Revised Statutes, it is not in ourpower, while administering the laws of this State in one of itstribunals of justice, to act at all upon those sentiments, whenwe see, as we cannot fail to do, that the Legislature has delibe-rately repudiated them.

The power which has been mentioned as residing in theStates is assumed by the Constitution itself to extend to

so thatwhatever opinion we might entertain as to the reasonableness,or policy, or even of the moral obligation of the

;; but these are addressed exclu-

sively to the political power of the respective States

Miln, 11 Pet., 131,139.) Thereare undoubtedly reasons, independently of the provisions of theFederal Constitution, for conciliatory legislation on the part ofthe several States, towards the polity, institutions and interestsof each other, of a much more persuasive character than thosewhich prevail even between the most friendly States uncon-nected by any political union

Oity of New York v. ; IGinois, 14

How., 13

s ta tus of persons within its jurisdiction appliesto the States of this Union, except as it has been modified orrestrained by the Constitution of the United States (Groves v.Slaughter, 15 Pet., 419; Moore v. The People of

; and it is proper to saythat the counsel for the appellant has not urged that principlein support of the claim of Mrs. Lemmon.

What has been said as to the right of a sovereign State todetermine the

alIowed;the right to have thatspecies of property recognized and protected in the course of alawful journey taken by the owner through the last mentionedcountry, as would undoubtedly be the case with a subjectrecognized as property everywhere

own State. We have not, therefore, considered it necessary toinquire whether by the law of nations, a country where negroslavery is established has generally a right to claim of a neigh-boring State, in which it is not

v. The People.

nals are not at liberty to search for the rule of decision amongthe doctrines of international comity, but are bound to adoptthe directions laid down by the political government of their

Lemmon


; and he took withhim as his personal servant his negro slave, Somerset, whomhe had purchased in Virginia and was entitled to hold in astate of slavery by the laws prevailing there. While theywere in London, the negro absconded from the service of hismaster, but was re-taken and put on board a vessel lying in theThames bound to Jamaica, where slavery also prevailed, for

&c. There was at least one Statewhich at the adoption of the Constitution did not tolerate sla-very; and in several of the other States the number of slaveswas so small and the prevailing sentiment in favor of emanci-pation so strong, that it was morally certain that slavery wouldbe speedily abolished. It was assumed by the authors of theConstitution, that the fact of a Federative Union would not ofitself create a duty on the part of the States which shouldabolish slavery to respect the rights of the owners of slavesescaping thence from the States where it continued to exist.The apprehension was not that any of the States would establishrules or regulations looking primarily to the emancipation of fugi-tives from labor, but that the abolition of slavery in any Statewould draw after it the principle that a person held in slaverywould immediately become free on arriving, in any manner,within the limits of such State. That principle had thenrecently been acted upon in England in a case of great noto-riety, which could not fail to be well known to the cultivatedand intelligent men who were the principal actors in framingthe Federal Constitution. A Virginia gentleman of the nameof Stewart had occasion to make a voyage from his home inthat Colony to England, on his own affairs, with the intentionof returning as soon as they were transacted

servige contains a very strong implication tothat effect. It declares that no person held to service or laborin one State, under the laws thereof, escaping into another, shallin consequence of any law or regulation therein, be dischargedfrom such. service ’ or labor,

v. The People;

of slavery, and to apply also to a slave in the territory of anotherState, which did not allow slavery, even unaccompanied with anintention on the part of the owner to hold him in a state of sla-very in such other State. The provision respecting the returnof fugitives from


Lemmon

: A num-ber of the States had very little interest in continuing the institu-tion of slavery, and were likely soon to abolish it within theirlimits. When they should do so, the principle of the laws ofEngland as to personal rights and the remedies for illegal im-prisonment, would immediately prevail in such States. Thejudgment in Somerset ’s case and the principles announcedby Lord M ANSFIELD , were standing admonitions that even atemporary restraint of personal liberty by virtue of a title de-rived under the laws of slavery, could not be sustained wherethat institution did not exist by positive law, and where

1 to the authors of the Constitution therefore was this

Loft, 1.) It was the opinion of the court that a stateof slavery could not exist except by force of positive law, andit being considered that there was no law to uphold it in Eng-land, the principles of the law respecting the writ of habeascorpus immediately applied themselves to the case, and it be-came impossible to continue the imprisonment of the negro.The case was decided in 1772, and from that time it became amaxim that slaves could not exist in England. The idea wasreiterated in the popular literature of the language, and fixedin the public mind by a striking metaphor which attributed tothe atmosphere of the British Islands a quality which causedthe shackles of the slave to fall off. The laws of England respect-ing personal rights were in general the laws of the Colonies,and they continued the same system after the Revolution byprovisions in their Constitutions, adopting the common lawsubject to alterations by their own statutes. The literature ofthe Colonies was that of the mother country.

The aspect in which the case of fugitive slaves was presented

Stewart, ; Somerset v.T., 340 S.

v. The People.

the purpose of being there sold as a slave. On application toLord M ANSFIELD , Chief Justice of the King ’s Bench, a writof habeas corpus was issued to Knowles as master of the ves-sel, whose return to the writ disclosed the foregoing facts.Lord M ANSFIELD referred the case to the decision of the Courtof King ’s Bench, where it was held, by the unanimous opinionof the judges, that the restraint was illegal, and the negro wasdischarged. (The Negro Case, 11 Harg.


.- rently inserted for purposes having no reference to slavery,we ought to bear in mind that when passing the fugitive slaveprovision the Convention was contemplating the future ex-istence of States which should have abolished slavery, ina political union with other States where the institutionwould still remain in force. It would naturally be supposedthat if there were other cases in which the rights of slaveowners ought to be protected in the States which should abol-ish slavery, they would be adjusted in connection with the pro-

appa-

forts’oti he wouldbe free if the master voluntarily brought him into a free Statefor any purpose of his own. But the provision in the Consti-tution extended no further than the case of fugitives. As tosuch cases, the admitted general consequence of the presenceof a slave in a free State was not to prevail, but he was by anexpress provision in the federal compact to be returned tothe party to whom the service was due. Other cases wereleft to be governed by the general laws applicable to them.This was not unreasonable, as the owner was free to deter-mine whether he would voluntarily permit his slave to gowithin a jurisdiction which did not allow him to be held inbondage. That was within his own power, but he could notalways prevent his slaves from escaping out of the State inwhich their servile condition was recognized. The provisionwas precisely suited to the exigency of the case, and it wentno further.

In examining other arrangements of the Constitution,

i&so facto transform him into a free man. This was re-cognized as the legal consequence of a slave going into a Statewhere slavery did not exist, even though it were without theconsent and against the will of the owner. A

hdeas corpus, which was a cherished institutionof this country as well as in England, was established. Read-ing the provision for the rendition of fugitive slaves, in thelight which these considerations afford, it is impossible not toperceive that the Convention assumed the general principle tobe that the escape of a slave from a State in which he was law-fully held to service into one which had abolished slaverywould

V. The People.

the remedy by

Lemmon


leges and immunities of free citizens in the several States, andthat the people of each State should have free ingress andegress to and from any other State, and should enjoy thereinall the privileges of trade and commerce, subject to the sameduties, impositions and restrictions as the inhabitants thereof,

privi-

aecure a community of intercourse which would not necessarilyobtain even among closely allied States. This was effected bythe fourth article of that instrument, which declared that thefree inhabitants of each of the States (paupers, vagabonds, andfugitives from justice excepted) should be entitled to all

external force; but in passing them it was felt to be necessary to

Q 2.) No provision in that instrumenthas so strongly tended to constitute the citizens of the UnitedStates one people as this. Its influence in that direction cannotbe fully estimated without a consideration of what would havebeen the condition of the people if it or some similar provisionhad not been inserted. Prior to the adoption of the Articles ofConfederation, the British colonies on this continent had no poli-tical connection, except that they were severally dependenciesof the British crown. Their relation to each other was thesame which they respectively bore to the other English colonies,whether on this continent or in Europe or Asia. When, in con-sequence of the Revolution, they severally became independentand sovereign States, the citizens of each State would have beenunder all the disabilities of alienage in every other, but for aprovision in the compacts into which they entered whereby thatconsequence was avoided. The articles adopted during the Rev-olution formed essentially a league for mutual protection against

IL, 396.) But the provi-sion is plainly so limited by its own language.

The Constitution declares that the citizens of each State shallbe entitled to all privileges and immunities of citizens in theseveral States. (Art. 4,

C: C: parte Simmons, 4 Wash. case of the actual escape of a slave from one State to another.(Ex

v. The People.

vision looking specially to that case, instead of being left to bededuced by construction from clauses intended primarily forcases to which slavery had no necessary relation. It has beendecided that the fugitive clause does not extend beyond the

Lemmon


lawsto residents of the State. But where the

Vir-ginia, having his home in that State, and never having beenwithin the State of New York, has the same rights under ourlaws which a native born citizen, domiciled elsewhere, wouldhave, and no other rights. Either can be the proprietor of pro-perty here, but neither can claim any rights which under ourlaws belong only

domicil. A citizen of ’ State would be unlawful. But the clause has nothing to do

with the distinctions founded on

I in a worse situation than a proper citizen of the particular

; or, to come at once to the precise point in controversy,whether it obliges the State governments to recognize, in anyway, within their own jurisdiction, the property in slaves whichthe citizens of States in which slavery prevails may lawfullyclaim within their own States-beyond the case of fugitive

The language is that they shall have the privileges andimmunities of citizens in the several States. In my opinionthe meaning is, that in a given State, every citizen of everyother State shall have the same privileges and immunities-thatis, the same rights-which the citizens of that State possess. I nthe first place, they are not to be subjected to any of the disa-bilities of alienage. They can hold property by the same titlesby which every other citizen may hold it, and by no other.Again, any discriminating legislation which should place them

; but stillthe principle of State sovereignty was retained as to all sub-jects, except such as were embraced in the delegations of powerto the General Government or prohibited to the States. Thesocial status of the people, and their personal and relative rightsas respects each other, the definition and arrangements of pro-perty, were among the reserved powers of the States. Theprovision conferring rights of citizenship upon the citizens ofevery State in every other State, was inserted substantially asit stood in the Articles of Confederation. The question now tobe considered is, how far the State jurisdiction over the sub-jects just mentioned is restricted by the provision we are con-sidering

2). The People.

respectively. The Constitution organized a still more intimateUnion, constituting the States, fir all external purposes and forcertain enumerated domestic objects, a single nation

CASES IN THE COURT OF APPEALS.

Lemmon

P7Sarrrm-VOL. VI.

thelawsof Virginia, and is entitled to have those laws enforced in thecourts, notwithstanding the mandate of our own laws to thecontrary. But the position of the appellant proves too much.

tempo-rarypurpose, she has brought with her, or sent with them,

?The Legislature has declared, in effect, that no person shall

bring a slave into this State, even in the course of a journeybetween two slaveholding States, and that if he does, the slaveshall be free. Our own citizens are of course bound by thisregulation. If the owner of these slaves is not in like mannerbound it is because, in her quality of citizen of another State, shehas rights superior to those of any citizen of New York, andbecause, in coming here, or sending her slaves here for a

; and an express denial of the right by that authorityis decisive against the claim. How then, is the case of theappellant aided by the provision under consideration

; and the case would be the sameif they were made in Europe or in any other foreign country.The clause has nothing to do with the doctrine of internationalcomity. That doctrine, as has been remarked, depends uponthe usage of civilized nations and the presumed assent of thelegislative authority of the particular State in which the rightis claimed

A very little reflection willshow the fallacy of the idea. Our laws declare contracts depend-ing upon games of chance or skill, lotteries, wagering policies ofinsurance, bargains for more than 7 per cent per annum of in-terest, and many others, void. In other States such contracts,or some of them, may be lawful. But no one would contendthat if made within this State by a citizen of another State wherethey would have been lawful, they would be enforced in ourcourts. Certain of them, if made in another State and in con-formity with the laws there, would be executed by our tribunalsupon the principles of comity

“Ointo which he may go, the legal institutions of the one in whichhe was born, cannot be supported.

to those which obtain in hisown.

The position that a citizen carries with him, into every State

21. The People.

of the several States differ, a citizen of one State asserting rightsin another, must claim them according to the laws of the lastmentioned State, not according

Lemmon


negro, mulatto or person ofcolor being a slave or servant owing service or labor to anyother person. The indictment was for secreting a fugitive slavewho had fled from his owner in Missouri. The owner had notintervened to reclaim him so as to bring the fugitive law into

Illino&, already referred to, the SupremeCourt of the United States, in its published opinion, declaredthat the States retained the power to forbid the introductioninto their territory of paupers, criminals or fugitive slaves.The case was a conviction under a statute of Illinois, makingit penal to harbor or secrete any

?f

negroes, as iswell known, have been alleged not to possess that quality. I nMoore v. The State

‘as one of thechief attributes of property is the power to use it, and to sellor dispose of it, I do not see how she could be debarred of theserights within our jurisdiction as long as she may choose to ex-ercise them. She could not, perhaps, sell them to a citizen ofNew York, who would at all events be bound by our laws, butany other citizen of a slave State-who would equally bringwith him the immunities and privileges of his own State-mightlawfully traffic in the slave property. But my opinion is thatshe has no more right to the protection of this property thanone of the citizens of this State would have upon bringingthem here under the same circumstances, and that the clauseof the Constitution referred to has no application to the case.I concede that this clause gives to citizens of each State entirefreedom of intercourse with every other State, and that anylaw which should attempt to deny them free ingress or egresswould be void. But it is citizens only who possess these rights,and slaves certainly are not citizens. Even free

; and,

appellant can claim exemption from the operation of the stat-ute on which the respondent relies, on the ground that she is acitizen of a State where slavery is allowed, and that our courtsare obliged to respect the title which those laws confer, she mayretain slaves here during her pleasure

permanent and absolute in their character. Hence, if thefor which, in a particular case, they may be desired, but

are purpose

and immunities secured to the citizens of eachState by the Constitution are not limited by time, or by the

privileges The

v. The People.

61b CASES IN THE COURT OF APPEALS.

Lemmon

.

cmpus,

7 3.) If theslaves had been passing through the navigable waters of thisState in a vessel having a coasting license granted under theact of Congress regulating the coasting trade, in the course ofa voyage between two slave States, and in that situation hadbeen interrupted by the operation of the writ of habeas

Q 8,

; and as acitizen of this State cannot bring a slave within its limits ex-cept under the condition that he shall immediately become free,the owner of these slaves could not do it without involvingherself in the same consequences.

It remains to consider the effect upon this case of the provi-sion by which power is given to Congress to regulate com-merce among the several States. (Art. 1,

mast.er which is supposed tobe protected under the clause respecting citizenship. Theanswer to the claim in that aspect has been already given. I tis that the owner cannot lawfully do anything which our lawsdo not permit to be done by one of our own citizens

;the right of the slave but of the

,$‘m’ ,

t.he Legislature must judge. But it is not

.iresidence of such a person when under the restraint of hisowner; but of this

,i/

unacceptable inhabitant, as it is very clear he may be, it would seemto follow that he might be expelled if accompanied by hismaster. It might, it is true, be less mischievous to permit the

; but this exception was omitted in the correspond-ing provision of the Constitution. If a slave attempting tocome into a State of his own accord can be excluded on theground mentioned, namely, because as a slave he is an

; but it does not seem to me clear that onewho is truly a citizen of another State can be thus excluded,though he may be a pauper or a criminal, unless he be a fugi-tive from justice. The fourth article of confederation containedan exception to the provision for a common citizenship, exclud-ing from its benefits paupers and vagabonds as well as fugitivesfrom justice

a. slave as Ido not consider him embraced under the provision securing acommon citizenship

!I’Jje People.

operation, and the case was placed by the court on the groundthat it was within the legitimate power of State legislation, inthe promotion of its policy, to exclude an unacceptable popula-tion. I do not at all doubt the right to exclude

L% Lemma,,

. ALBANY, MARCH, 1860. 61 1

the ports of those States. The courtconsidering the carrying of passengers coming here fromforeign countries or being transported by sea between ports indifferent States, to be an operation of foreign and inter-statecommerce, and holding moreover that the power to regulate

wrts servedthey were staying at a house in the city, ready to set out whena vessel should sail, and not intending to remain longer thanshould be necessary.

The act under consideration is not in any just sense a regula-tion of commerce. It does not suggest to me the idea thatit has any connection with that subject. It would have anextensive operation altogether independent of commerce. It is‘not therefore within the scope of the decision of the SupremeCourt in the passenger cases. (7 How., 283.) In those cases theStates of New York and Massachusetts had imposed taxes uponpassengers arriving by sea at

; and when the writ of habeas corpus

: Mrs. Lemmon being the owner of these slaves, at herresidence in Norfolk, chose to take them to the State of Texasfor a purpose not disclosed, further than that it was not inorder to sell them. Geographically, New York is not on theroute of such a voyage, but we can readily see that it wouldbe convenient to bring them to that city from which vesselssail to most of the ports in the Union, to be embarked fromthence in a ship bound to a port in the extreme southern partof the Union. This was what was actually done. She camewith the negroes to New York by sea, in order to embark fromthence to Texas

gj”1853,p. 187.) But the case doesnot present either of these features. Its actual circumstancesare these

ofClaims, under the Convention

g the Commission t?le decisions Enterprize, in $ the brig (Case

Y. The People.

I am not prepared to say that they could have been dischargedunder the provision of the statute. So if in the course of sucha voyage they had been landed on the territory of the State inconsequence of a marine accident or by stress of weather. Ineither case they would, in strictness of language, have beenintroduced and brought into the State. In the latter case, theirbeing here being involuntary, as regards the owner, they wouldnot have been “brought here” within the meaning of the statute,

IN THE COURT OF APPEALS.

Lemmon

CASB 612

di&ultyto control State legislation over these small navigable creeksinto which the tide flows-we should feel not much

UnitedStates, is anaffair between the government of Delaware and its citizens, ofwhich this court can take no cognizance.” “If Congress hadpassed any act which bore upon the case-any act in executionof the powers to regulate commerce, the object of which was

mustomed to use it. But this abridgment, unless it comes inconflict with the Constitution or a law of the

un-doubtedly within those which are reserved to the States. Bu tthe measure authorized by this act stops a navigable creek, andmust be supposed to abridge the rights of those who have been

col-lision with the powers of the General Government, are

.(that is, health and the like), provided they do not come in tice M ARSHALL observed that “means to produce these objects

Jus-* neighborhood. In giving the opinion of the court, Chief

WZson v. The Black Bird Creek SwampCompany (2 Pet., 250). The State of Delaware had authorizeda corporation to erect a dam across a creek below tide-water, inorder to drain a marsh. The validity of the act was drawn inquestion, on the ground that it was in conflict with the powerof Congress to regulate commerce. The object of the workauthorized by the State law was to improve the health of the

affect the sub-ject of commerce, but in respect to which the States are freeto act until the ground has been covered by an act of Congress.State legislation upon these subjects is not hostile to the powerresiding in Congress to regulate commerce; but if Congress inexecution of that power shall have enacted special regulationstouching the particular subject, such regulations then becomeexclusive of all interference on the part of the States. This isshown by the case of

v. The People.

commerce was exclusively vested in Congress, declared thoseacts to be a violation of the Constitution of the United States.It may be considered as settled by those judgments that an actof State legislation acting directly upon the subject of foreignor inter-state commerce, and being in substance a regulationof that subject, would be unwarranted, whether its provisionswere hostile to any particular act of Congress or not. Butthere is a class of cases which may incidentally

Lemmon


I

afXectthe power of the States to deal with the status of all personswithin their territory in the meantime, and before the existenceof such a law. It would be a law to regulate commerce carriedon partly by land and partly by water-a subject upon whichCongress has not thought proper to act at all. Should it do SO

transitu between Virginia and Texas, in acoasting vessel, at the time the habeas corpus was served, theycould not have been interfered with while passing through thenavigable waters of a free State by the authority of a lawof such State. But they were not thus in transit at that time.Congress has not passed any act to regulate commerce betweenthe States when carried on by land, or otherwise than in coast-ing vessels. But conceding that, in order to facilitate commerceamong the States, Congress has power to provide for preciselysuch a case as the presentthe case of persons, whose trans-portation is the subject of commercial intercourse, being carriedby a coasting vessel to a convenient port in another State, witha view of being there landed, for the purpose of being againembarked on a fresh coasting voyage to a third port, whichwas to be their final destination-the unexercised power toenact such a law, to regulate such a transit, would not

ilz

ZXO., 299). The application of the rule to the presentcase is plain. We will concede, for the purpose of the argu-ment, that the transportation of slaves from one slaveholdingState to another is an act of inter-state commerce, which maybe legally protected and regulated by federal legislation. Actshave been passed to regulate the coasting trade, so that if theseslaves had been

TVardens of Philadelphia,12

Roar-d of (Cooby v. The ; and since the Passenger cases, it has been reiterated in the

Pilot case

Moore v. Houston (5 Wheat.,1)

193), and in Crowinshield (4 Wheat., v.Sturgm

nnncy of the law of Delaware with the Constitution is placedentirely on its repugnancy with the power to regulate com-merce with foreign nations and among the several States-apower which has not been exercised so as to affect the ques-tion. ” The same principle has been affirmed in

Tile People.

in saying that a State law being in conflict with such act wouldbe void. But Congress has passed no such act. The repug

1). Lemmoll


eight colored persons, was issued by a Justice of the SuperiorCourt in the city of New York, to inquire into the cause oftheir detention. The appellant showed for cause that they

9 39.) The restraint cannot be continued forany moment of time, unless the authority to maintain it havethe force of law within the State.

In November, 1852, a writ of habeas corpus on behalf of

d ., 565, § 21; A!& 563,(&nst., art. 1, $4; 2 R.

: and enlargement of liberty,unless some cause in law be shown to the contrary, flows fromthe writ by a legal necessity.

statutf referred to. For the foregoing reasons, Iam in favor of affirming the judgment of the Supreme Court.

W RIGH T, J. No person can be restrained of his libertywithin this State, unless legal cause be shown for such restraint.The habeas corpus act operates to remove the subject from pri-vate force into the public forum

’ of federal legislation however, does not, in my opinion, raiseany conflict between it and the laws of this State under con-sideration. Upon the whole case, I have come to the conclu-sion that there is nothing in the National Constitution or thelaws of Congress to preclude the State judicial authorities fromdeclaring these slaves thus introduced into the territory of thisState, free, and setting them at liberty, according to the direc-tion of the

Legislation, under the power conferred uponCongress to regulate commerce, circumstances might arisewhere its execution, by freeing a slave cargo landed on ourshores, in the course of an inter-state voyage, would interferewith the ‘provisions of an act of Congress. The present state

; but in the case ofsupposable federal

re-peat the remark, that the law of the State under considerationhas no aspect which refers directly to commerce among theStates. It would have a large and important operation uponcases falling within its provisions, and having no connectionwith any commercial enterprise. It is then, so far as the com-mercial clause is concerned, generally valid

2). The People.

hereafter, it might limit and curtail the authority of the Statesto execute such an act as the present in a case in which it shouldinterfere with such paramount legislation of Congress. I

Lemmon


sttrtus of slavery to exist in any form, orfor any time, or for any purpose, within her borders, anddeclare that a slave brought into her territory from a foreign

wt. 4, $2.) She has the undoubtedright to forbid the

Cbnst., S. (U; only because she has, by compact, yielded her right of

sovereignty.

; and inthis,

; and when she has declared or expressedher will in this respect, no authority or power from withoutcan rightly interfere, except in the single instance of a slaveescaping from a State of the Union into her territory

As a sovereign State she may determine and regulate thestatus or social and civil condition of her citizens, and everydescription of persons within her territory. This power shepossesses exclusively

: otherwise not.The question is one affecting the State in her sovereignty.

it within her territorial limits, then is legal cause of restraintshown

commonpfitwithin this State in the course of travel frorn Virginia to Texas,and New York, though a sovereign State, be compelled tosanction and maintain the condition of slavery for any pur-pose, and cannot effect a universal proscription and prohibitionof

wE.ilethere, by force of law attend upon them while

Semain in New York for any other time, or for anyother purpose, than until opportunity should present to takepassage for all to Texas. The whole question, therefore, onthese facts is, whether the cause shown was a legal one. I fthe relation of slave owner and slave which subsisted in Vir-ginia between Mrs. Lemmon and these colored persons

,to Texas, with nointention on their part that they or the eight colored personsshould

domicil. The return to the writ stated sub-stantially that the route and mode of travel was by steamerfrom Norfolk, in Virginia, to the port of New York, and thenceby a new voyage to Texas. In execution of this plan of travel,they and their slaves had reached the city of New York, andwere awaiting the opportunity of a voyage

establish a new

as such in New York, in transit fromVirginia through New York to Texas, where they intendedto

wife had been citizens and there domiciled,and that she held them

wife in Virginia, of which State before thattime he and his

his of sl;ives were -

v. The People.

COTJXT OF APPEALS.

Lemmon

TEIE 616 CASES IN

‘i8VI. fhlITII.---VOL.

; it also wounds the bestforms of government; in a democracy where all men are equalslavery is contrary to the spirit of the Constitution. ”

It is not denied that New York has effectually exerted hersovereignty to the extent that the relation of slave owner andslave cannot be maintained by her citizens, or persons or citi-zens of any other State or nation domiciled within her terri-tory, or who make any stay beyond the reasonable halt ofwayfarers, and that this she might rightfully do. I will notstop here to inquire whether this is not virtually concedingthe whole question in the case. It is urged that this is as faras the State had gone when the present case arose; and if Icomprehend the argument rightly, as far as she can ever gowithout transcending restraints imposed upon her sovereigntyby the Constitution of the United States, or violating the prin-ciples of the law of nations as governing the intercourse offriendly States. I shall show that neither of these propositionsare maintainable, and that in the legislation of the State on thesubject of slavery, the case of the status during transit has not

“ Slavery, ” says Montesquieu, “not only violates thelaws of nature and of civil society

: whilst slavery is local, and beginning inphysical force, can only be supported and sustained by positivelaw.

: for without regard to time or circumstances,the State may, at her will, change the civil condition of herinhabitants and her domestic policy, and proscribe and pro-hibit that which before had existed. I do not say that shemay convert any description of her free inhabitants or citi-zens into slaves; for slavery is repugnant to natural justiceand right ’, has no support in any principle of internationallaw, and is antagonistic to the genius and spirit of republicangovernment. Besides, liberty is the natural condition of men,and is world-wide

qnes-tion, that at some time in her history as a colony or State shehas tolerated slavery on her soil, or that the status has ever hada legal cognition

pretence whatever, shall be free. If she hasdone this, then neither an African negro nor any other person,white or black, can be held within her limits, for any momentof time, in a condition of bondage. It cannot affect the

2’. The People.

State, under any

1860. 617Lemmon

ALBANY MARCH,

provixions

; but the personheld in slavery should not reside or continue in our State morethan nine months, and if such residence were continued beyondthat time, such person should be free. These

pretence whatever, exceptin certain cases therein specified, persons held as slaves underthe laws of other States. Amongst these cases, was that of aperson, not being an inhabitant of our State, who should betraveling to or from, or passing through the State. He mightbring with him any person held by him in slavery under thelaws of the State from which he came, and might take suchperson with him from the State of New York

; and in the preamble to the resolution, recitedthat they considered slavery to be an evil much to be deplored.The statute of 1817, provided against importing, introducing,or bringing into the State, on any

State Trials, 2.) Yetit existed in the Colony by force of local law, and was con-tinued by the same sanction in a mild form in the eastern partof the State, after New York became an independent sove-reignty. The public sentiment, reason and conscience, how-ever, continued to frown on it until, in 1817, steps were takenby the legislative department of the government to effect itstotal abolition before 1830. As indicative of the public sen-timent, in 1820 the Legislature, with unanimity, adopted aresolution requesting our Representatives in Congress to opposethe admission of any State into the Union, without makingthe prohibition of slavery therein an indispensable conditionof admission

; Howell ’s CT, 20 S. _hft’s R., 1;sells case, (&me?=

efl’ect; but that if it were otherwise,when the domestic laws reject and suppress the status as a civilcondition or social relation, as matter of reason and authorityit is never upheld in the case of strangers resident or in transit.

1st. How far has the State gone in the expression of hersovereign will, that slavery, by whatsoever casual access, o rfor whatsoever transient stay, shall not be tolerated upon hersoil? When negro slavery was first introduced and estab-lished as an institution in the Colony of New York, is noteasily traceable. It never had any foundation in the law ofnature, and was not recognized by the common law.

v. The People.

escaped its intent and

Lemmon

IN. THE COURT OF APPEALS,618' CASES

stutus of slavery in any formor for any purpose to rest upon, within the limits of ‘the State,is evident. By the law of 1830, the privilege was secured tothe foreign slaveholder of temporarily sojourning in or pass-ing through the State with his slaves. In 1841 this privilegeis taken away by the affirmative action of the law-makingpower. So, also, by the law of 1830, any person who, orwhose family, resided part of the year in this State, and part

transitus of a slave in custody of aninhabitant of a slaveholding State claiming to be his owner,and to leave no legal basis for the

reach the case of the c?i. 247.) That this legislation was intended to

; and if brought in, should be free.(Laws of 1841,

another State,who was traveling to or from, or passing through this State,Thus slavery was left without the support of even the munici-pal law, except in the instance of sojourners, and then only fora period of nine months, and slave owners of other Statespassing with their slaves through our own. But in 1841,the sanction of the municipal law even in these cases wastaken away. The Legislature, in 1841, repealed all the sec-tions of the Revised Statutes allowing slaves to be broughtvoluntarily into the State, under any circumstances, leavingthe provisions still in operation, that no person held as a slaveshould be imported, introduced or brought into the State onan y pretence whatever

§ 16.) Here wasan authoritative and emphatic declaration of the sovereignwill, that freedom should be the only condition of all descrip-tions of persons, resident or domiciled within the State, andthat no slave should be brought therein, under any pretencewhatever, except by his master, an inhabitant of

id., 659, s 6; h!, 656, 657, R.

; every person who shall hereafter be bornwithin this State shall be free, and every person brought intothis State as a slave, except as authorized by this title, shallbe free. ” (1

“ Every person born within this State, whether whiteor colored, is free

:

the case of an inhabitant of another State, tempora-rily sojourning in or passing through this State, were re-enactedin the revision of the Statutes in 1830, with this additionalsection

o. The People.

against introducing or bringing foreign slaves into the State,except in

IlARCH, 1860. 619Lemmon

ALBANY,

social

s0vereignt.y of the State by the Federal Con-stitution, or the rules of international law.

2d. Is there anything in the Federal Constitution to hinderthe State from pursuing her own policy in regulating the

ibnford, 149.) Of course I mean with this qualifi-cation, that there is no duty or obligation in respect thereto,imposed on the

& 209;

2 Hen. Munford’s R.,

Iaw, and the means to enforce or protect the one or the other.As the status of slavery is sustained and supported exclusivelyby positive law (and this has been so held as to the status inVirginia by her courts), if we have no law to uphold it, but onthe contrary, proscribe and prohibit it, it cannot exist for aninstant of time within our jurisdiction. (4

wm to render the civil condition ofslavery impossible in our own society. Liberty and slavery,as civil conditions, mean no more than the establishment of

v. The People.

of the year in any other State, might remove or bring withhim or them, from time to time, any person lawfully held byhim in slavery, into this State, and might carry such personwith him or them out of it. This was denied by the Legisla-ture in 1841. The obvious intent and effect of the repealingact of 1841 was to declare every person upon the soil of thisState, even though he may have been held as a slave by thelaws of another State, to be free, except in the single instanceof a person held in slavery in any State of the United Statesunder the laws thereof, who should escape into this State.With the courtesy of this legislation, so far as it might operateto affect friendly intercourse with citizens of slaveholdingStates, as a judicial tribunal, we have nothing to do. We areonly to determine the intent and effect of the legislation. I tis but just, however, to the political power of the State, toremark, that it was not conceived in any spirit of irrationalpropagandism or partizanship, but to effectuate a policy basedupon principle, and in accordance with public sentiment. Thefact that it has been the law of the State for nearly twentyyears, and through successive changes of the political power,is cogent proof that it rests upon the foundation of a publicsentiment not limited in extent to any party or faction. Theeffect of the legislation

THR COURT OF APPEALS.

Lemmon

620' CASES IN

9 9.) The latter provision,

“ the migration or impor-tation of such persons as any of the States now existing shallthink proper to admit. ” (Const., art. 1,

(Cbnst., art. 4, $2) and restraining Con-gress, prior to 1808, from prohibiting

s-&d. 3) in relation to“persons held to labor in one State, under the laws thereof,escaping into another”

§ 2, S. Const., art. 1,

; whilst others weremaintaining it with increasing vigor. There are but three sec-tions in the whole instrument that allude to the existence ofslavery under the laws of any of the States, and then not interms but as explained by the light of contemporaneous history,and in such a way as to stamp the institution as local. Theseare the provisions apportioning federal representation anddirect taxation (U.

others were on the eve of abolishing it ,

Strader v. Graham10 How. R., 82,. 93.) Although the status of African slaveryhad at some time been recognized in all of the originalStates, at the period of the formation of the Federal Consti-tution some of them had abolished the institution, and

; Prigg v. Com-

monwealth of Penn., 16 Pet., 611, 625 ;; Groves v. Slaughter, 15 Pet., 508 C R., 396 c!

Sirnmolzs, 4 Wash.(Exparte

Y. The People.

and civil condition of every description of persons that are ormay come within her jurisdictional limits, or that enjoins onher the duty of maintaining the status of slavery in the caseof slaves from another State of the Union voluntarily broughtinto her territory? It ought not to be necessary at this dayto affirm the doctrine, that the Federal Constitution has noconcern, nor was it designed to have, with the social basis andrelations and civil conditions which obtain within the severalStates. The Federal Constitution is but the compact of thepeople of separate and independent sovereignties, yieldingnone of the rights pertaining to those sovereignties withintheir respective territorial limits, except in a few special cases.This was the nature of the compact as explained by its framersand contemporaneous expounders, and since by the FederalCourts, although it has become common of late to strive to findsomething in this bond of Federal Union to sustain and upholda particular social relation and condition outside of the rangeof the laws which give it vitality.

1860. 621Lemmon

.ALBANY, MARCH,

.

: “By the general laws of nations, no nationGbmmonwenlth

of Pennsylvania Prigg v.

; nor is there the remotest sanction or recognitionof slaves as property outside of the range of the territoriallaws which treat them as such. The third provision is simplya consent of the State as parties to the federal compact to thereclamation of fugitives from service. In speaking of thisclause, Judge STORY said, in delivering the opinion of the Su-preme Court of the United States in

three-fifths of ‘all other persons. ” No duty or obligation was imposedon the States

-whole number of free persons including those bound to servicefor a term of years, and excluding Indians not taxed,

LL determined by adding to the

coqtrary, by all themeans it possessed, federal power, after 1808, was to be exertedto suppress it. The provision in respect to apportioning repre-sentation in Congress, alludes remotely and only impliedly tothe fact that slavery existed in any of the States. The repre-sentative population was to be

; but on the wns not to be recognized or receive any

aid from the federal authority &nd that it ; that the power over it belonged to the States

respectively,

to do so was as strongly implied by this provision as the rightof other States that admitted them. ” But the provision haslong ceased to have any practical operation. Congress hasprohibited the importation of slaves into any of the States ofthe Union, and the slave trade is declared to be piracy. Theprovision has no importance now, except it be to show, that inthe view of the framers of the Constitution, slavery was local inits character

u The importationof certain persons, meaning slaves, which was not to be pro-hibited before 1808, was limited to such States then existingas shall think proper to admit them. Some of the States atthat time prohibited the admission of slaves, and their right

:

506), Judge M CLEAN

thought the provision recognized the power to be in the Statesto admit or prohibit, at the discretion of each State, the intro-duction of slaves into her territory. He says

v. The People.

it is known, was urged with much earnestness by the delegatesfrom two or three of the Southern States, with the view torestrain Congress from prohibiting the foreign slave trade before1808. In Groves v. Slaughter (15 Pet.,

622 CASES. IN THE COURT .OF APPEALS.

Lemmon

” servitude, ”on motion of a delegate from Virginia; the latter being

” was substituted for IL service W& s, 1558, 1589.)

So, also, the word

M ad &n ’s; (ske Journal, 384 LL held to service or labor in one

State, under the laws thereof. ” mad& to read ” and ‘L legaliy

l&gal. The provision, as originally reported, read, “legallyheld to service, ” and it was amended by striking out the word

w;t9 certainly inconsistent with the principle that lies at thefoundation of our government. In incorporating the fugitiveslave provision in the Constitution, the Convention was carefulnot to do anything which should imply its sanction of slaveryas

Vn-ginia. I tofficer of the Convention, from

; but it was not adopted asoriginal1 y reported. There were many eminent and patrioticmen in and out of the Convention, both north and south, thatdid not contemplate that slavery was to be perpetual in anyof the States of the Union, and amongst thesk was the illus-trious presiding

; a proof at once ofits intrinsic and practical necessity. ” The learned judge wasright in saying that the clause, as it stands in the instrument,was adopted with entire unanimity

urdnimous consent of the framers of it

*The clause was accordingly adopted into the Constitution bythe

*

; a coursewhich would have created the most bitter animosities, and en-gendered perpetual strife between the different States.

st.ate of slavery is deemed to be a municipal regulation,founded upon and limited to the range of the territorial laws.This was fully recognized in Somerset ’s case, which was de-cided before the American Revolution. It is manifest, fromthis consideration, that if the Constitution had not containedthis clause, every non-slaveholding State in the Union wouldhave been at liberty to have declared free all runaway slavescoming within its limits, and to have given them entire immu-nity and protection against the claims of their masters

D. The People.

is bound to recognize the state of slavery as to foreign slavesfound within its territorial dominions, when it is in oppositionto its own policy and institutions, in favor of the subjects ofother nations where slavery is recognized. If it does it, it isas a matter of comity and not as a matter of international right.The

ALBANY, MARCH, 1860. -623Lemmon

s ta tus of slavery than to that of liberty in the States, for, frommight prove more disastrous to the

10 Howard ,92.) Any other doctrine

Strader v. Graham, Slau$ter, 15 Pet., 508; v . G rove l; C! C. R., 396 W&h. parte Simmons, 4 obiter. (Ex was

Scqtt case, and all beyond this

;and the cases uniformly recognize the doctrine, that both theConstitution and laws of the United States apply only tofugitives escaping from one State and fleeing to another;that beyond this the power over the subject of slavery isexclusively with the several States, and that their action can-not be controlled by the Federal Government. Indeed, theexclusive right of the State of Missouri to determine and regu-late the status of persons within her territory, was the onlypoint in judgment in the Dred

intend-ment, supports the right of a slave owner in his own State, orin any other State. This, by its terms, is limited to its specialcase, and necessarily excludes federal intervention in everyother. This has been always so regarded by the federal courts

; and it is more-over manifest from all the provisions of the Constitution, andfrom contemporaneous history, that the ultimate extinction ofslavery in the United States, by the legislation and action ofthe State governments (instead of adopting or devising anymeans or legal machinery for perpetuating it), was contem-plated by many of the eminent statesmen and patriots whoframed the Federal Constitution, and their contemporaries bothnorth and south. The provision in relation to fugitives fromservice, is the only one in the Constitution that, by an

LL aperson held to service or labor in one State under the lawsthereof,” is to be construed as meaning slaves, then the Fede-ral Constitution treats slaves as persons and not as property,and it acts upon them as persons and not as property, thoughthe latter character may be given to them by the laws of theStates in which slavery is tolerated. It is entirely clear thatthe Convention was averse to giving any sanction to the law ofslavery, by an express or implied acknowledgment that humanbeings could be made the subject of property

” is not used in the Constitution, and if the phrase, “ slave

V. The People.

descriptive of slaves. (3 Madison ’s Works, 1569.) The term

Lemmon

‘;cHE COURT .OF APPEALS.IX CASES

.

.‘19- VOL. VI.RMIlX.

-policy in the abolition of slavery, to entirely prohibit the

that it is com-petent for a State, with the view of effectuating its system of

tiectthe power of the respective States over the subject of slavery,Even those who have contended for the right in Congress,under the commercial power, as it is called, to regulate thetraffic in slaves, among the several States, admit

to regulate the internal slavetrade, even if it has authority to do so, in no just sense couldeven such a case be said to raise the, question of the right offederal intervention. But in no view can the provision empow-ering Congress to regulate commerce among the States

has not yet undertaken ; but as Con-

gress

; that taking passage fromNorfolk to New York, his and their voyage in the coastingsteamer had terminated, and he was sojourning in the city withthem, awaiting the opportunity to start on a new voyage toTexas. It is certainly not the case of the owner of slaves,passing from one slave State to another, being compelled, byaccident or distress, to touch or land in this State. In suc hcase, probably, our law would not act upon the status of theslave, not being within its spirit and intention

; nor that, being with theiralleged owner, on board a coasting vessel, enrolled and licensedunder the laws of Congress, such vessel was driven, by stressof weather or otherwise, into the navigable waters of thisState. Indeed, the case showed that their owner had volunta-rily brought them into the State

not, pretended thatthe persons claimed to be held as slaves were in transit toTexas as articles of commerce

-

the moment that it is conceded that, by the exercise of anypowers granted in the Constitution to the Federal Government,it may rightly interfere in the regulation of the social and civilcondition of any description of persons within the territoriallimits of the respective States of the Union, it is not difficultto foresee the ultimate result.

The provision of the Federal Constitution conferring onCongress the power to regulate commerce among the severalStates, is now invoked as a restraint upon State action. It isdifficult to perceive how this provision can have any applica-tion to the case under consideration. It is

v. The People.

1860. 625Lemmon

ALBANY, MARCH,

(whatever they

into, and holdthem for any purpose in, a non-slaveholding State. The pro-vision was always understood as having but one design andmeaning, viz., to secure to the citizens of every State, withinevery other, the privileges and immunities

q,ues-tion of the appellant ’s right. I think this is the first occa-sion in the juridical history of the country that an attempthas been made to torture this provision into a guaranty ofthe right of a slave owner to bring his slaves

l), is also invoked as having some bearing on the t!&&., art. 4, $2,

subd. S. (%

eircnmstances,against an external evil.

The constitutional provision that “the citizens of eachState shall be entitled to all the privileges and immunitiesof citizens in the several States ”

a11

OPto interfere in any way with the power of the States to seve-rally protect themselves, under any and

Baughber was deemed at the time tohave settled the question against the right in Congress, underthe commercial claim, to regulate the internal slave trade,

Constitution of the United States. ”The case of Groves v.

; and the action of the several States uponthis subject cannot be controlled by Congress, either by virtueof its power to regulate commerce, or by virtue of any otherpower conferred by the

which they may be introduced,and to determine their condition and treatment within theirrespective territories

fi-om anotherState, either for sale or for any other purpose, and also to pre-scribe the manner and mode in

allow persons of thisdescription (slaves) to be brought within its limits

kc each of the States has a right to deter-mine for itself whether it will or will not TANEY, in that case,

tution of Mississippi, prohibiting the importation of slaves intothat State for sale, was in conflict with the commercial powerof the Federal Government. As was said by Chief Justice

theConsti-whichit was attempted to be urged that a provision in 508), a case in

; and this was so declared by the SupremeFederal Court, in Groves v. Slaughter (15 Pet.,

01. The People.

importation of slaves, for any purpose, into her territory. Bu tapart from effectuating any object of police or promoting anyrule of policy, the power over the whole subject is with theStates respectively


Lemmon

s t a t us , aud the privilege is denied to our own citi-zens, then Judge S TORY and the Federal Court fell into agrave error in the opinion, that if it were not for the fugitiveslave provision, New York would have been at liberty to have

to readas it now stands in the Constitution. If the provision can beconstrued to confer upon a citizen of Virginia the privilegeof holding slaves in New York, %-hen there is no law touphold the

“the citizens of each State, ” and made the provision ‘( the free inhabitants of each State, ” the words,

to whom the privileges and immunities werenot, extended. But when the framers of the Constitution cameto re-model this clause, having conferred exclusive power uponthe Federal Government to regulate commercial intercourse,and imposed the obligation upon the States, respectively, todeliver up fugitives escaping from service, and being unwilling,even impliedly, to sanction, by federal authority, the legalityof the state of slavery, they omitted the provisions of thearticle in relation to commercial intercourse, and substitutedfor the words,

( A rt. 4.) This article limitedthe right to the free inhabitants of the States, implying thatthere were inhabitants of the States in the Confederacy thatwere not, free, and

as theinhabitants thereof, respectively. ”

; and the people of each State shouldhave free ingress and egress to and from any other State, andshould enjoy therein all the privileges of trade and commerce,subject to the same duties, impositions and restrictions

“ that the free inhabitants of each of theStates (paupers, vagabonds and fugitives from justice excepted),should be entitled to all privileges and immunities of free citi-zens in the several States

i

Prior to the adoption of the Federal Constitution, and evenunder the Confederation, the only kind of citizenship was thatwhich prevailed in the respective States. The Articles of Con-federation provided

I,

t,othe citizens of New York. He was not to be received ortreated as an alien or enemy in the particular sovereignty.

to all the privileges and immunities accorded t o be entitled

to guard against a State discriminating in favor of its owncitizens. A citizen of Virginia coming into New York was

v. The People.

might be) accorded in each to its own citizens. It was intended

I

Lemmon


in&&a.3d. Is the State, upon principles of comity, or any rule of

public law, having force within the State, required to recog-nize and support the relation of master and slave, betweenstrangers sojourning in or passing through her territory?The relation exists, if at all, under the laws of Virginia, andit is not claimed that there is any paramount obligation rest-ing on this State to recognize and administer the laws of Vir-ginia within her territory, if they be contrary or repugnant toher policy or prejudicial to her interests. She may volunta-rily concede that the foreign law shall operate within her juris-diction, and to the extent of such concession, it becomes a

jit vobnli non &hat court, can work injury to no one, for the principle actsonly on the willing, and

cstruction of the Constitution and law of the United States, saycon-

403), a case arising in a slaveholding State, inwhich the authority of States was fully recognized to makelaws dissolving the relation of master and slave. Such a

R., Cbpuillon (14

Martin ’s Lunsford v.

; and this speciallimitation has been rightly considered as a forcible implica-tion in proof of the existence of the general power in theStates. So it was considered in

; and that the latter government can claim no powerswhich are not granted to it by the Constitution, either expresslyor by necessary implication. There is no grant of power to theFederal Government, and no provision of the Constitution fromwhich any can be implied, over the subject of slavery in theStates, except in the single case of a fugitive from service.The general power is with the States, except as it has beenspecially limited by the Federal Constitution

; and so, also, didChief Justice T ANEY mistake the character of the instrument,when declaring that there was nothing in the Constitution to con-trol the action of a State in relation to slavery within her limits.But it seems a work of supererogation to pursue this inquiry.It never yet has been doubted that the sovereign powers vestedin the State governments remain intact and unimpaired, exceptso far as they are granted to the government of the UnitedStates

Y. The People.

declared free all slaves coming within her limits, and havegiven them entire immunity and protection


Lemmon

I

1

i

I,

may or may not, as she chooses, exercise it, The courts have

affected by our laws. But, in 1841, the State, by actuallegislation, abrogated the permission accorded to slaveryduring transit, and declared it to be her will, that, under allcircumstances, a slave voluntarily brought into the Stateshould be free, and that, the status should not be toleratedwithin her borders. It is for the State to establish the rule,and exercise comity, and not the courts in her behalf, and she

.stattiT of the latter shouldnot be

staiu5 of any slave brought vol-untarily into the State, and made him a freeman. As a mat-ter of wmity, however, the will of the State then was, thatin the case of an inhabitant of another State passing throughour territory with his slaves, the

inhabita& of another State, temporarily inor passing through the State. In the latter cases, though themaster could obtain no affirmative aid from the municipal lawto enforce restraint of the liberty of the slave, yet the State,exercising comity, expressly permitted the relation to existfor the space of nine months. To this extent the State con-sented that the foreign law of slavery should have effectwithin her limits, and the relation of master and slave was notto be dissolved by force of the municipal law, unless the staywas continued beyond nine months. There can be no doubtthat without this express exception, the statute of 1830 wouldhave acted directly upon the

to absolutely dissolve the relation of master andslave, and make the latter a freeman, except in the case of amaster and slave,

to herpolicy. The policy and will of the State in respect to thetoleration of slavery, in any form, or however transient thestay, within her territory, has been distinctly and unmistakablyexpressed_ Before the repealing act of 1841, our statutesoperated

asbeing inconsistent with her own laws, and contrary

to the foreign law, or the relation it establishes, eke& to recognize or

give

@art of her municipal law. Comity, however, never can beexercised in violation of our own laws; and in decidingwhether comity requires any act, we look to our own lawsfor authority. There can be no application of the principlesof comity, when the State absolutely refuses

vu. The People.


stat?&, the unjust and unnaturalrelation, which the policy of the State aims to suppress, andher policy fails, at least in part, if the status be upheld at all.Upon the same rule that she would permit the Virginia ladyin this case to pass through her territory with slaves, shewould be constrained to allow the slave trader, with his gang,to pass, even at the risk of public disorder which would inev-itably attend such a transit. The State deems that the publicpeace, her internal safety and domestic interests, require thetotal suppression of a social condition that violates the law of

Iaw, and the aid ofpublic force, to the proscribed status in the case of strangerswithin our territory. It is the

wouId forbid the sanction of

actuallegislation reaching the case of slavery in transit, the policyof the State

actual legislationclearly indicate that she has gone. But if there were no and to this extent, I think, her policy and

;to this extent if

there be no restraint on her action by the Federal Constitution

; but the relationestablished and sustained only by the foreign municipal lawshall terminate, and the persons before held as slaves shallstand upon her soil in their natural relations as men and asfreemen. It is conceded that she may go

pretenee whatever,neither by comity nor in any other way shall the municipallaw let in and give place to the foreign law

stitus of Africanslavery shall not exist, and her laws transform the slave intoa freeman the instant he is brought voluntarily upon her soil.Her will is that, neither upon principles of comity to strangerspassing through her territory, nor in any other way, shall therelation of slave owner and slave be upheld or supported.Instead, therefore, of recognizing or extending any law ofcomity towards a slaveholder passing through her territory withhis slaves, she refuses to recognize or extend such comity, orallow the law of the sovereignty which sustains the relation ofmaster and slave to be administered as apart of the law of theState. She says, in effect, to the foreign slave owner, if youbring your slaves within the State, on any

ofbe indicated by her policy and actual legislation. The Statehas declared, through her Legislature, that the

v. The People.

but the power of determining whether the comity inquired


Lemmon

153, 114, 104, 620, 624.) But no further than they are96, $6 51, 89,Co@. of Laws, stat+ (Story ’s

Iation, to recognize the foreign law as an authentic origin andsupport of the actual

regu-; and when it is brought

within her limits, and is there permissible as a domestic go subjeets within her own jurisdiction

the consequences of the status existing abroad in reference

iher territory the relation of slave owner and slavebetween strangers. So far as it may be done without preju-dice to her domestic interests, she may be required to recog-nize

to reeognize and upholdwithin

status of persons,any obligation rests on the State

civil domicil the power to fix the law of the

can it b ejustly pretended that by the principle which attributes to the

uatural condition as men. Nor law,the strangers stand upon

our soil in their ; but by that ,subjeet of property

this State to enforce the municipal law which makes men thenot as property. The public law exacts no obligation from

c.olor or country, are treated as persons and

to guard andprotect the rights of a particular race; for in that human beings,without regard to

; not even by the Federal Constitution, whichis supposed by some to have been made only &he status exists

nor by any law, except that of the State in whichlaw,

Deuereaux’s R., 263.) Why should not the Statebe able to utterly suppress it within her jurisdiction? She isnot required by the rule of the law of nations, which permitsthe transit of strangers and their property through a friendlyState, to uphold it. Men are not the subject of property bysuch

; 2 Triab, 2 &mmer.set’s ease, 20 Howell ’s State429; Luw, C&i1 ments of

Ele-

staltus which the law of nations treatsas resting on force against right, and finding no support out-side of the munieipal law which establishes it. (Taylor ’s

; a alld all of whose issue is involved in the mis-

fortune of the parent

;” that originates in the predominance of physicalforce, and is continued by the mere predominance of socialforce, the subject knowing or obedient to no law but the willof the master,

IL of such a naturethat it is incapable of being introduced on any reasons, moralor political

Sommersd’s case, to be ; a status, declared by

Lord M ANSFIELD , in $j§ 1, 15) $%-ginia Bill of Rights, (

’

nature

et. The People.Lemmon

IALBANY, MARCH, 1860. 631

.

partions of theearth-those lying near and within the tropical zones-canalone be cultivated to any extent by that race, and whether, ifwithout their labor, tberefore, this large portion of the globewill, contrary to the manifest design of the Creator, continue

; whether the fairest and most fertile eom-

pulsion ; whether they can be induced to labor only by

race areadapted, by their physical and moral organization, only to thiscondition

African ; whether the ; whether it is morally right or wrong; whether it is

expedient or inexpedient

ofnature

law to the

(Disseaiting.) A considerable proportion of thediscussion in this case was occupied by observations, not at allnecessary to a proper disposition of it; nor were they calcu-lated, in the slightest degree, in my opinion, to aid the courtin solving the questions presented for its determination.Whether slavery is agreeable or in opposition

Js., concurred.

C LERK E, J.

WEKFZS,

Court should be affirmed.

DAVIES , B ACON and

effect to the law of Virginia, by which alone therelation exists, nor does it find any support or recognition inthe common law.

The judgment of the Supreme

,may be held as slaves. Neither the law of natureor nations, hor the Federal Constitution, impose any duty orobligation on the State to maintain the state of slavery within herterritory, in any form or under any circumstances, or to recog-nize and give

this State, bywhich they

judicial tribunal to take.Our laws declare these persons to be free ; and there is nothingwhich can claim the authority of law within

; and that they wererightly discharged. I have aimed to examine the questioninvolved in a legal, and not in a political aspect; the onlyview, in my judgment, becoming a

corpus was issued, of their liberty

was not shown forrestraining the colored persons, in whose behalf the writ ofhabeas

domicil.My conclusions are, that legal cause

togive effect to these laws of the

the State required

v. The People.

consistent with her own laws, and not repugnant or prejudicialto her domestic policy and interests, is

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.


propa-S MI T H .-V OL . VI. 80

tittleto the sum of slavery in the world. To suppose, therefore, itmay be said, that the acts referred to aimed at such persons,would be imputing a spirit of the most wanton aggression tothe legislators who passed them. It would be mere

; but what could the most nervous or fastidiousguardians of the public interests apprehend from persons pass-ing through the State. Neither could it add one jot or

persops pass-ing through our territory? It is not to be supposed a priori,that any one member of the brotherhood of States would adoptany legislation for the purpose of affecting persons with whom,as a social or political community, it has no possible concern.If the slave were to remain here for any time, legislators may,indeed, fear some detriment, some demoralization from hispresence

;but if the slave continues here more than nine months, heshall be free. These exceptions were repealed by an actpassed May 25, 1841, amending the Revised Statutes in rela-tion to persons held in slavery. Although there appears to beno ambiguity in the language of those acts, I am not surprisedthat some incredulity has been expressed in relation to theirentire meaning. What, it may be plausibly asked, could bethe object of the Legislature in interfering with

pretence whatsoever, exceptin the cases therein specified, and that every such person shallbe free. One of the excepted cases allows a person, not aninhabitant of this State, traveling to or from, or passing throughthis State, to bring his slave here and take him away again

aid re-enacted in 1830, declaresthat no person held as a slave shall be imported, introduced,or brought into this State, on any

tional power to do so.1. The act passed in 1817,

consiitu-2d, if it has so declared, had it the ; and

1st’ whether the Legislature of this State ha sdeclared that all slaves brought by their masters into thisState, under any circumstances whatever, even for a moment,shall be free

legalquestions now presented for our consideration. Those ques-tions are,

.or become a sterile waste, are questions very interesting withinthe domain of theology, or ethics, or political economy, buttotally inappropriate to the discussion of the purely

v. The People.


IL in order to form a more perfectunion” than had existed under the old Confederacy, declareand provide, among other things in the Constitution underwhich we have now the privilege of living, that Congress

to preserve the independence and sovereigntyof each State within the sphere of ordinary domestic legisla-tion, yet they evidently designed to incorporate this peopleinto one nation, not only in its character as a member of thegreat family of nations, but also in the internal, moral, socialand political effect of the Union upon the people themselves.It was essential to this grand design that there should be asfree and as uninterrupted an intercommunication between theinhabitants and citizens of the different States, as between theinhabitants and citizens of the same State. The people of theUnited States, therefore,

; but, by the almostdivine wisdom which presided over its formation, while itsframers desired

a solemn written covenant. And this covenant notonly establishes a confederacy of States, but also, in regard toits most material functions, it gives this confederacy the char-acter of a homogeneous national government. The Constitu-tion is not alone federal or alone national

Fanatical exaltation, like that of the French peopleduring their first revolution, when they undertook to forcetheir theories of spurious democracy on the other nations ofEurope, disturbing its peace for more than twenty years, andcausing wide-spread slaughter and desolation. But, notwith-standing all these reasons, which may be plausibly suggestedin considering the intent of the Legislature, the language ofthe acts referred to is too plain to admit of any doubt of thatintent. It evidently intended to declare that all slaves vol-untarily brought into this State, under any circumstanceswhatever, should become instantly free.

2. But it is a question of much greater difficulty, whetherthe Legislature had the constitutional power to do so.

New York is a member of a confederacy of free and sove-reign States, united for certain specific and limited purposes,under

gandism, of which we should not suppose any communit ycapable, who were not in a condition of revolutionary excite-ment, and

The People.v.


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;,.

i.

Confederation. On the contrary, they contemplated, as we

; pro-vided that those restrictions shall not extend so far as to pre-vent the removal of property, imported into any State, to anyother State of which the owner is an inhabitant. Mostassuredly, the people who adopted the present Constitutiondid not intend that the intercourse between the people of thedifferent States should be more limited or restricted than theStates, in their corporate capacity, provided in the Articles of

: thatthe people of each State should have free ingress to and fromany other State, and should enjoy therein all the privileges oftrade and commerce, as the inhabitants thereof respectively,subject to the same duties, impositions and restrictions

art.s, by securing for limited times toauthors and inventors the exclusive right to their respectivewritings and discoveries. It also provides that no tax or dutiesshall be laid on articles exported from any State, and that nopreference shall be given, by any regulation of commerce orrevenue, to the ports of one State over another; that vesselsbound to or from one State, shall not be obliged to enter, clearor pay duties in another; that full faith or credit shall be givenin each State to the public acts, records and judicial proceed-ings of every other State, and that citizens of each State shallbe entitled to all the privileges and immunities of citizens inthe several States. The people, in adopting this Constitution,declare in its very preamble that they intended to form a moreperfect union than had bound them under the old Articles ofConfederation, the fourth article of which declared that thebetter to secure and perpetuate mutual friendship and inter-course among the people of the different States, the free inha-bitants of each State should be entitled to all the privilegesand immunities of free citizens in the several States

; to estab-lish post-offices and post-roads; to promote the progress ofscience and the useful

; to fix the standard of weights and measures

t o coin moneyas the genuine national circulating medium; to regulate itsvalue

; to establish a uniform rule of naturalization, an duniform laws on the subject of bankruptcies;

v. The People.

(alone) shall have power to regulate commerce among the sev-eral States

/ALBANY, MARCH, 1860. 635

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; and the latter acquires no right over such person orhis property. But the judge who decided this case in the firstinstance (by whose reasoning, I may be permitted here to say,I was erroneously influenced in voting at the general termof the Supreme Court in the first district), while admittingthe principle of the law of nations, which I have quoted, saysthat the property, which the writers on the law of natiousspeak of, is merchandise or inanimate things, and that the

; and the latter acquires no right oversuch person or his property. This privilege is yielded betweenforeign nations towards each other without any express com-pact. It is a principle of the unwritten law of nations.

Of course this principle is much more imperative on theseveral States than between foreign nations in their relationstowards each other. For it can be clearly deduced, as we haveseen, from the compact on which their union is based. There-fore, making this principle of the law of nations applicable tothe compact which exists between the several States, we say,that the citizens of any one State have a right of passagethrough the territory of another, peaceably, for business orpleasure

; and they amply secured it by the provi-sions to which I have referred.

Is it consistent with this purpose of perfect union, and per-fect and unrestricted intercourse, that property which thecitizen of one State brings into another State, for the purposeof passing through it to a State where he intends to take uphis residence, shall be confiscated in the State through whichhe is passing, or shall be declared to be no property, andliberated from his control? If he, indeed, brings his propertyvoluntarily, with the design of taking up his residence inanother State, or sojourning there for any purpose of business,even for a brief period, he subjects himself to the legislationof that State, with regard to his personal rights and the rightsrelating to property.

By the law of nations, the citizens of one government havea right of passage through the territory of another, peaceably,for business or pleasure

e. The People.

have seen, a more perfect union, and a more perfect and unre-stricted intercourse

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Ihad been the circumstances of the original States, in relation

; and that each State is at libertyto act towards other States, in this matter, according to its ownparticular opinions in relation to the justice or expediency ofholding such property. It may be, therefore, necessary moreparticularly, though briefly, to inquire what were and what

; it isstill property-recognized as an existing institution by thepeople who framed the present Constitution, and binding upontheir posterity forever, unless that Constitution should be modi-fied or dissolved by common consent.

The learned judge who rendered the decision in the firstinstance in this case, would, of course, admit, on his ownreasoning, that, if by the law of nations the right was recog-nized to property in slaves, the principle would apply to thatspecies of property as well as to any other, and its inviolabilitywould be upheld whenever its owner was passing with itthrough any territory of the family of nations. Can it be dis-puted that the obligationsof the States of this Union towardseach other are less imperative than those of the family ofnations would be towards each other, if a right to this speciesof property was recognized by the implied compact by whichtheir conduct is regulated. The position, therefore, of thelearned judge, and of the general term, can only be main-tained on the supposition that the compact which binds theStates together does not recognize the right to the labor andservice of slaves as property

aud labor for a limited period, or for life, it matters not ; and whether the person is held to serviceTins is property

ill their own States, to the service and labor of any person.

the,rights of the citizens of any otherState, that there is no such thing as the right of such citizens,

Iu other words, can any one State insist, under the federalcompact, in reference to

thelaw of nature and of nations, he contends, cannot be property.Foreign nations, undoubtedly, between whom no express com-pact exists, are at liberty to make this exception. But can anyof the States of this confederacy, under the compact whichunites them, do the same? Can they make this distinction?

o. The People.

principle, therefore, is not applicable to the slaves, who, by


popu-; and

soon it became necessary to consider whether the slave

and for thecommon preservation of their rights, not only from externalattacks, but from internal aggression. Their deliberationsbegan with the conviction and acknowledgment that propertyin slaves existed to a great extent in nearly all the States

was in this conditionof things that the representatives of the States assembled toframe a Coustitution for their more perfect union,

Arrican race, was very numerous, while in the otherStates they were comparatively few. It

(L They regarded it, ” said the same writer ina note, “as lawful to buy and sell slaves taken in lawful war,or reduced to servitude by judicial sentence, and placed themunder the same privileges as those given by the Mosaic law. ”

Slavery had not only existed for a long period in all thecolonies, but at the time of the formation of the Constitutionit was likely to continue to exist for a long time in the greaternumber of the States. In five of them the slave population, com-posed of the

practised thelaw of Moses. ”

6L there is undoubtedevidence that African slaves, as other persons in servitude,were included in this provision. Slavery in Massachusettshad not been confined to Africans, but included Indianscaptured in war, and persons of our race condemned for crimes.The early colonists of Massachusetts held and

454), (History of the Constitution.

of the United States, 2d vol., 453,

L6 and, ” to em-ploy the language of Mr. Curtis

; what was the common understanding in relation toit, as pointed out by the debates in the Convention, and whatdoes the Constitution itself, by express provisions or necessaryimplication, indicate on this ever-important subject.

When this Constitution was adopted by the deliberate con-sent of the States and the people, slavery existed in everyState, except Massachusetts and New Hampshire. It hadexisted in all the New England colonies from a very earlyperiod. The four colonies of Massachusetts Bay, Plymouth,Connecticut and New Haven, had formed a confederation, inwhich, among other things, they had stipulated with eachother for the restoration of runaway servants,

8. The People.

to this subject, at the time of the adoption of the present Con-stitution


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; beingcase is, that they partake of both these qualities (( the true state

of the

person%;and Mr. Jay, in his paper on this subject in the Federalist,which, recollect, was published before the submission of theConstitution for ratification by the States, says

werf also considered as

Slav%s, it was contended, are considered as property, and notas persons, and, therefore, ought to be comprehended in esti-mates of taxation, which are founded on property, and to beexcluded from representation, which is regulated by a censusof persons. The representatives of the southern States, on theother hand, contended that slaves were not considered merelyas property, but that they

S, 20, 22.) And what was the resultof those convictions and deliberations? Undoubtedly, thatwhile slavery should be deemed a local institution, dependingupon the power of each State to determine what personsshould share in the civil and political rights of the community,the right is fully recognized in the Constitution, that any ofthe States may continue and allow the right of property in thelabor and service of slaves.

The portions of the Constitution more directly bearing onthis subject are the 3d subdivision of the 2d section of the 1starticle, and the 3d subdivision of the 2d section of the 4t.harticle. The former relates to the apportionment of represen-tatives and direct taxes, necessarily compelling a discriminationbetween the different classes of inhabitants. It was contended,on behalf of some of the northern States, that slaves oughtnot to be included in the numerical rule of representation.

7X Const. Htit. (Gbtis’

LL In framingthe new Union, it was equally necessary, as soon as the equal-ity of the representation by States should give place to aproportional and unequal representation, to regard the inha-bitants in one or the other capacity, or in both capacities, orleave the States in which they were found, and to which theirposition was a matter of grave importance, out of the Union. ”

v. The People.

lation should be included in the ratio of representation. The ymust be regarded, in order to make a satisfactory provision onthis subject, indispensable to the completion of the Constitu-tion, either as persons or as chattels, or as both.


and make it the mere reflex of the popular opinionor passion of the day. This court was not created by the Constitution forsuch purposes. Higher and graver trusts have been confided to it, and itmust not falter in the path of duty. ”

Moreover, besides the necessary implication from the avowed

Unit,ed States. Any other rule of construction would abrogate the judicialcharacter of this court,

securethe same rights and privileges to the citizen; and as long as it continues toexist in its present form, it speaks not only in the same words, but withthe same meaning and intent with which it spoke when it came from thehands of its framers, and was voted on and adopted by the people of the

; but while it remainsunaltered, it must be construed now as it was understood at the time of itsadoption. It is not only the same in words, but the same in meaning, anddelegates the same powers to the government, and reserves and

L‘N~ one, we presume, supposes that any change in public opinion orfeeling, in relation to this unfortunate race, in the civilized nations of Europeor in this country, should induce the court to give to the words of the Con-stitution a more liberal construction in their favor than they were intendedto bear when the instrument was framed and adopted. Such an argumentwould be altogether inadmissible in any tribunal called on to interpret it.If any of its provisions are deemed unjust, there is a mode prescribed inthe instrument itself, by which it may be amended

no other power, in relation to this race, is to be found in the Constitution;and as it is a government of special, delegated powers, no authority beyondthese two provisions can be constitutionally exercised. The governmentof the United States had no right to interfere for any other purpose butthat of protecting the rights of the owner, leaving it altogether with theseveral States to deal with this race, whether emancipated or not, as eachState may think justice, humanity, and the interests and safety of societymay require. The States evidently intended to reserve this power exclu-sively to themselves.

I‘ The only two provisions which point to them and include them, treatthem as property, and make it the duty of the government to protect it;

:

‘L The Federal Constitution, ” headds, ‘(therefore decides with great propriety on the case ofour slaves, when it views them in the mixed character of per-sons and property. ”

But in addition to this, if anything can be necessary, it hasbeen adjudicated in the celebrated Dred Scott case, in a courtwhose decisions on this subject are controlling, that the Con-stitution of the United States recognizes slaves as property,and this is an essential element of the decision. Chief JusticeT ANE Y, who delivered the opinion of the court, says

as property. ”

PeopIe.

considered by our laws in some respects as persons, and inother respects

V. The


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VI. 81hvlITH.--VOL.

qf nations? This inviolability of the slave pro-perty of the citizens of other States, while passing through theterritory of free States, in analogy to the principle of the law

recognises as property, without thelatter’s acquiring any right of control over that property.

Surely, this compact of sovereignties is not less obligatoryon the parties to it, than is the law of nations on those whoare subject to it. Is the one in derogation of the other? ordoes it not rather magnify and render more precise and tangi-ble, and greatly extend, the duties and obligations importedby the law

IE, then, by the law of nations, the citizen of one governmenthas a right of passage with what is recognized as property bythat law, through the territory of another, peaceably, and thattoo without the latter ’s acquiring any right of control over theperson or property, is not a citizen of any State of this con-federacy entitled, under the compact upon which it is founded,to a right of passage through the territory of any other State,with what that compact

“other persons ”-of course persons not free.

“ slaves, ” who, in the apportionment of representatives anddirect taxes, were to be added to free persons, they called them

; and, instead of calling those-dealing

with things-with realities ; they were about a word

it worth whileto contend. They had a higher and more practical purposethan to indulge any strife

think

” is not employed in the Con-stitution. This was a matter of taste, I suppose, about whichthe members of the Convention did not

and directtaxes shall be apportioned among the several States, whichshall be included within this Union, according to their respec-tive numbers, which shall be determined by adding to the wholenumber of free persons, including those bound to service for aterm of years, and excluding Indians not taxed, three-fifths ofall other persons., ’ What other persons? The words areemployed in direct contrast to free persons, and indisputablymean persons not free. It has been asserted, with an air oftriumph, that the word “slave

kepiesentatives ”

lst, ofthe National Constitution, the language itself recognizes thecondition of slavery. It says:

W. The People.

purpose of the 3d subdivision of the 2d section, article

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; forgettingthat the compact, by which the latter are governed in theirrelation towards each other, modifies the law of nations inthis respect; and while each particular State is at liberty to

States of this Union were at liberty to do the same

to be recognized and enforced by the judicial tribunals.The error into which the judge who decided this case in the

first instance fell, consisted in supposing, because the law ofnations refused to recognize slaves as property, the several

.obligation, which is not to be enforced by an appeal to arms,but

; and thiscomity, impliedly recognized by the law of nations, ripens, in thecompact cementing these States, into an express conventional

; war between them is legally impossible

; but if it is meant that these words import thatthe judicial tribunals can only administer the law as declaredby the law-making power of their own particular nation, andthe injured nation can only seek peaceable redress by appeal-ing to the executive, and through it to the law-making power,the proposition is correct. But, as I have shown, the relationsof the different States of this Union towards each other are ofa much closer and more positive nature than those betweenforeign nations towards each other. For many purposes they areone nation

W. The People.

of nations, to which I have adverted, clearly in no way inter-feres with the supreme authority of each State over those per-sons and things that come within the range of its dominion.By universal law, every sovereign and independent communityhas complete and supreme dominion over every person andthing within its territory, not there for tbe purpose of passingthrough it, or not there in the capacity of ambassadors fromforeign nations, or their servants.

But, it is asserted, that the privilege accorded to the citizensof one foreign nation to pass unmolested with their propertythrough the territory of any other, is founded merely oncomity. If by this is meant that the nation within whose ter-ritory the property of a stranger is confiscated, is not respon-sible for its acts in that respect, the idea is incorrect. Such anact would be a valid cause for a resort to the only method bywhich nations can obtain redress after remonstrance or nego-tiation fails

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which they arebound to recognize and enforce.

That portion of the act of the Legislature of this State

-Ithe United States. The right yielded by what is termed comityunder the law of nations, ripens, in necessary accordance withthe declared purpose and tenor of the Constitution of the Uni-ted States, into a conventional obligation, essential to its con-templated and thorough operation as an instrument of federa-tive and national government. While the violation of the rightyielded by what is termed comity under the law of nations,would, under certain circumstances, be a just cause of war, therights growing out of this conventional obligation are properlywithin the cognizance of the judicial tribunals,

fortiori, by thepositive compact which regulates the dealings and intercourseof these States towards each other, things belonging to thecitizen of any one State, recognized as property by that com-pact, are exempt, in their passage through the territory ofan y other State, from all interference and control of the latter.The right to the labor and service of persons held in slavery,is incontestably recognized as property in the Constitution of

a so,

its territory, with the intent of taking up their abode in it forany length of time, to declare what can or cannot be held asproperty. As, however, by the law or implied agreementwhich regulates the intercourse of separate and independentnations towards each other, all things belonging to the citizeno f anyone nation, recognized as property by that law, are ex-empt in. their passage through the territory of any other, fromall interference and control of the latter;

:Every State is at liberty, in reference to all who come within

opinion

transitu fromthose States- The Supreme Court having fallen into the sameerror, their order should be reversed.

To avoid the possibility of misapprehension, I will brieflyrecapitulate the positions which I hold in the foregoing

t)oproperty in the labor and service of persons in

ignore the right

T. The People.

643

abolish or retain slavery in reference to its own inhabitantsand within its own borders, as its sense of right or expediencymay dictate, it is not permitted in its dealings or intercoursewith other States or their inhabitants to

Lemmon

I&.ALBANY, MARCH,.

;general spirit of our national compact. While, therefore, I ammot prepared at this time to give such reasons as would justifyme in holding the law to be void, I am equally unprepared toconcur in the conclusion to which the majority of my asso-ciates have arrived.

Judgment affirmed.

as a gross violation of those principles ofjustice and comity which should at all times pervade ourinter-state legislation, as well as wholly inconsistent with the

tthe pressure of other duties, from giving to this case thatcareful examination which is due to its importance, and to theelaborate and able arguments of the counsel, and am not pre-pared, therefore, definitely to determine whether the act of1841 is or is not in conflict with any express provisions of theUnited States Constitution. But however this may be, I can-not but regard it

of his brethren were prepared to make, he contented himselfwith dissenting from the judgment.

S ELDEN , J. I have been prevented, by want of time and

<out, however, wishing to delay the decision which a majorityWith-

to hold that such legislation does not violate the obligations‘imposed on all the States by the Federal Constitution.

; and he was not preparedbetween the States of this Union

;the question in the case depends, is directly opposed to therules of comity and justice which ought to regulate intercourse

its importance might justify. He had no hesitation in declaringit to be his opinion that the legislation of this State, on which

1~. The People.

which declares that a slave brought into it belonging to a per-son not an inhabitant of it shall be free, is unconstitutionaland void, so far as it applies to a citizen of any other State ofthis Union, where the right to property in the service andlabor of slaves exists, who is passing through this State, andwho has no intention of remaining here a moment longer thanthe exigencies of his journey require.

C OMSTOCK , Ch. J., observed in substance, that since the lastterm of the court, his time had been wholly occupied in anexamination of other causes argued at that term. To this case,therefore, he had not yet been able to give the attention which


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court of appeals

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